M. B. SHAH, S. A. SHAH, J. ( 1 ) THE learned advocate for the appellants is not pressing his application (C. A. No. 249/78) for additional evidence and hence it is rejected. ( 2 ) BEING aggrieved and dissatisfied by the judgment band award dated 5/10/1977 passed by the Motor Accidents Claims Tribunal Surat in Motor Accident Claim Petition No. 34 of 1976 original opponents Nos. 51 and 2 who are held jointly and severally liable to pay the total compensation of Rs. 40 500 to the claimants-applicants have filed this appeal. ( 3 ) APPLICANT No. 1 is the husband of deceased Madangauri who died because of the scooter accident which took place on 7/10/1975 at about 5 p. m. on Navapura Karva Road in the City of Surat. Rest of the applicants Nos. 2 to 9 are sons and daughters of the deceased. It is their case that the deceased was aged about 38 years at the time of accident. On the day of the accident Bai Madangauri was going from Karva Road to 7 Zampa Bazar. She was was on the left side of the road. At that time opponent No. 1 who was driving the scooter bearing No. GTL 1618 came from the Zampa Bazar side to Karva Road on the wrong side will excessive speed in a very rash and negligent manner and decide with the deceased. As a result or the dash the deceased fell do will and the front portion of the scooter struck with her head. She received serious injuries and was removed on the hospital Opponent No. 1 did not care to stop the scooter but he ran away. The deceased expired in the hospital on 9-10-75. It is their further case that the deceased was working on a factory and was earning Rs. 175. 00 per month approximately. The applicants claimed in all Rs. 60 0 by way of compensation. It is their case that the scooter belonged to opponent No. 3 Girdharlal Uttamchand of Ahmedabad. According to their into action the original owner of the scooter had transferred or sold it to Jahvantlal Ichchharam but it was not transferred in his name in R. T. O. office. Surat. So Jashvantlal Ichchharam was also joined as opponent No. 2. As the scooter was insured with New India Assurance Co. the Insurance Company was joined as opponent No. 4. Surat. So Jashvantlal Ichchharam was also joined as opponent No. 2. As the scooter was insured with New India Assurance Co. the Insurance Company was joined as opponent No. 4. Opponent No. 1 was the alleged driver of the scooter. ( 4 ) THIS application was revised by opponent No. 2 by filing a written statement Ex. 13. He contended that he was not the owner of the said scooter but opponent No. 3 was the owner of it. He contended that he had gone out of station on the day of incident and therefore He had no personal knowledge about the scooter accident. He denied that opponent No. 1 was driving the scooter. ( 5 ) OPPONENT No. 1 had also filed his written statement Ex. 19 wherein he denied the contentions of the applicants. He submitted thai he was not knowing anything about the scooter accident on the date of the incident nor he drove the said vehicle. ( 6 ) AS opponent No. 3 was avoiding service substituted service was effected by the Tribunal. Thereafter the public notice was published in daily newspaper Jansatta. Thereafter also opponent No. 3 did not appear and the proceeding was conducted ex-parte against him. ( 7 ) OPPONENT No. 4 Insurance Company filed a written statement Ex. 51. The Insurance Company contended that the vehicle in question was not involved in the accident. According to the information on received by the Insurance Company it was submitted that opponent No. 3 who was insured at the time of the accident had transferred the vehicle to the opponent No. 2 without giving any information to the Insurance Company and therefore also the Insurance Policy lapsed on the transfer. It was further contended that as opponent No. 1 was neither holding a said driving licence on the day of accident nor prior to the day of accident the Insurance Company was not liable to pay anything to the claimants. ( 8 ) AFTER recording the necessary evidence the Tribunal arrived at the conclusion that the deceased Madangauri died in scooter accident which occurred on 7/10/1975 at about 5. 30 p. m. because of rash and negligent anything of the said scooter by opponent No. 1. The Tribunal further held that opponent No. 2 was in possession of the said scooter and with his consent opponent No. 1 drove the said scooter. 30 p. m. because of rash and negligent anything of the said scooter by opponent No. 1. The Tribunal further held that opponent No. 2 was in possession of the said scooter and with his consent opponent No. 1 drove the said scooter. Therefore he was also vicariously liable for the tort committed by opponent No. 1. He arrived at the conclusion that opponent No. 3 had no control over the scooter and therefore he was not vicariously liable. As opponent No. 1 was not having any driving licence the Insurance Company opponent No. 4 was not liable to indemnity the loss to the injured. The Tribunal further held that the applicants and deceased are Khatri by caste and judicial notice can be taken of the fact that adult children and ladies do help by doing some manual work. It assessed the monetary loss to the finally members at the rate of Rs. 2500. 00per year and applying the multipler of 15 it held that total economic loss suffered by the family comes to Rs. 37 500 The Tribunal added Rs. 3000. 00 per account of family of expectation of life. In all Rs. 40 500 were awarded. ( 9 ) IN this appeal the learned advocate for the appellants-original opponents No. 1 and 2 vehemently contended that there is no evidence on record worth the name to arrive at the conclusion that opponent No. 1 was driving the scooter at the relevant time and therefore it cannot be held that he is liable to pay any compensation to the claimants. He also submitted that it is an admitted fact on record that opponent No. 3 is the owner of the vehicle. He had insured the sad vehicle with opponent No. 4 and therefore opponents Nos. 3 and 4 would in any case be jointly and severally liable for the accident which had occurred because of the use of the scooter. He submitted that opponent No. 2 would not at all be liable because of the fact that he was not the owner of the said vehicle. ( 10 ) THE learned advocate for the claimants-respondents Nos. 1 to 9 Mr. Shelat vehemently submitted that opponent Nos. 2 3 and 4 would be jointly and severally liable for the tortious act. He submitted that opponent No. 2 would not at all be liable because of the fact that he was not the owner of the said vehicle. ( 10 ) THE learned advocate for the claimants-respondents Nos. 1 to 9 Mr. Shelat vehemently submitted that opponent Nos. 2 3 and 4 would be jointly and severally liable for the tortious act. He submitted that it is an admitted position on record that opponent No. 3 is the owner of the scooter by which the accident took place. The said scooter was insured by him with opponent No. 4 and that even presuming that opponent No. 3 had handed cover possession of the said scooter to opponent No. 2 for use yet it cannot be said that opponent No. 3 and 4 are not jointly and severally responsible for the tortious act. ( 11 ) AS against this the learned advocate for the Insurance Company vehemently submitted that the learned Tribunal has rightly held that the insurance Company was not liable to indemnify because opponent No. 1 who drove the scooter was not leaving licence. He in the alternative submitted that even in the Court comes to the conclusion that opponent No. 1 was not driving the scooter yet there is no evidence on record to arrive at the conclusion as to who was driving the vehicle and therefore also the Insurance Company would not be liable to pay any compensation. He also submitted that in any case as the scooter was transferred by opponent No. 3 to opponent No. 2 therefore also the Insurance Company would not be liable. Lastly it was his contention that as the Insurance Company was not given sufficient opportunity to prove who was driving the vehicle and whether the driver was having licence or not or whether the scooter was driven in breach of the conditions of the Insurance Policy the matter should be remanded to the trial Court for proper decision ( 12 ) FROM the facts and circumstances stated above it could easily be inferred that the driver of the scooter was rash and negligent. It is not the case of opponent No. 2 or opponent No. 3 that some person committed theft of the scooter or drove it without the owners permission and/or knowledge. It is not the case of opponent No. 2 or opponent No. 3 that some person committed theft of the scooter or drove it without the owners permission and/or knowledge. Therefore it would be within the personal knowledge of opponent No. 2 or opponent No. 3 as to who drove the scooter on the day of accident. In the case of Pushpabai v. Ranjit G. and P. Co. A. I. R. 1977 Supreme Court 1735 the Supreme Court held that the normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur i. e. the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. With regard to the owners liability after considering the previous decision of the Supreme Court in the case of Sitaram Motilal v. Santanu Prasad Jaishanker A. I. R. 1966 S. C. 1697 the Court held as under:-"this Court has held that the test is whether the act was done on the owners business or that it was proved to have been impliedly authorized by the owner. At page 537 it is stated that the law is settled that master is vicariously liable for the acts of his servants acting in the course of his employment. Unless the act is done in the course of employment the servants act does not make the employer liable. In other words for the masters liability to arise the act must be a wrongful act authorized by the master or a wrongful and unauthorized mode of doing some act authorized by the master. Unless the act is done in the course of employment the servants act does not make the employer liable. In other words for the masters liability to arise the act must be a wrongful act authorized by the master or a wrongful and unauthorized mode of doing some act authorized by the master. The extension of the doctrine of the scope of employment noticed in the judgment refers to the decision of Ormrod v. Crosville Motor Services Ltd. (1953 0 Aller 753) where Lord Denning stated: It has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if that driver is his servant acting in the course of his employment. This is not correct. The owner is also liable if the driver is with the owners consent driving the car on the owners business or for the owners purposes. The Supreme Court accepted the test and to that extent this may be taken an extension of the doctrine of scope of employment". Considering the nature of accident and the fact that immediately Madangauri was removed to the hospital where she expired on 9/10/1975 it would be reasonable to draw an inference that whosoever may be the driver of the scooter he drove it rashly and negligently. ( 13 ) THEN the question which arises for consideration is as to who was driving the said scooter on the day of accident. The learned advocate for the claimants submitted that as the opponent No. 3 the original owner had not stepped into the witness box nor he had filed any written statement it should be presumed that the driver of the scooter was the opponent No. 3 his servant or his agent. ( 14 ) UNDER sec. 106 of the Evidence Act when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. Further under sec. 114 of the Evidence Act presumption can be raised with regard to any fact which is likely to have happened regard being had to the common course of natural events and human conduct. It was within the personal knowledge of opponent No. 3 or it was for him to show and prove as to who was driving the scooter at the relevant time. It was within the personal knowledge of opponent No. 3 or it was for him to show and prove as to who was driving the scooter at the relevant time. Opponent No. 2 has in terms deposed that scooter was lying at his house on the relevant day. It was left by opponent No. 3 as he was coming to Surat for starting business. ( 15 ) THEREFORE. the question is when it is proved that the vehicle was negligently driven and that opponent No. 3 was its owner and when there is no further information would it be legitimate to draw the inference that the negligent driver was either the owner himself or his servant or his agent. ( 16 ) IN the case of Kayat and another v. Lim Yen Seng 1972 A. C. J. 198 the High Court of Malaysia considered the similar question. In that case the plaintiff and his son were riding motorcycle. Son was driving it and father was sitting at the pillion. At a particular spot son gave signals indicating that he was turning right into the junction. As he was making the turn a car came from the rear and knocked his motorcycle on its right side. Father and son both were injured. The defence had not called any evidence but made certain submissions before the Court. The Court arrived at the conclusion that the driver on the car was wholly to blame for the accident. On behalf of the defendants it was submitted that there was no evidence to show who was the driver of the car any connection between him and the owner and that the driver was the servant or agent of the owner. For determining the question on which party the burden of proof of the issue whether the driver of the car was servant or agent of the owner lies. the Court relying upon the two decisions of English Courts held as under:-"in Barnard v. Sully (1931) 47 T. L. R. 577 Mr. Barnard sued Mr. Sully in the County Court for damage done to his van through the negligent driving of Mr. Sullys car. It seems to have been accepted that Mr. Sully was not driving himself and he denied that the driver was his servant or agent. Barnard sued Mr. Sully in the County Court for damage done to his van through the negligent driving of Mr. Sullys car. It seems to have been accepted that Mr. Sully was not driving himself and he denied that the driver was his servant or agent. In the absence of evidence contradicting this denial the county court judge withdrew the case from the jury Mr. Barnard appealled to a Divisional Court of the Kings Bench but Mr. Sully did not appear and was not represented. Allowing the appeal Scrutton L. J. with whom Greer and Slesser L. JJ. concurred said: no doubt sometimes motor-cars were being driven by persons who were not the owners nor the servants or agents of the owners. . . . . . . But apart from authority the more usual fact was that a motor-car was driven by the owner or the servant or agent of the owner and therefore? the fact of ownership was some evidence fit to go to the jury that at the material time the motor-car was being driven in the owner of it or by his servant or agent. But it was evidence which was liable to be rebutted by proof of the actual facts". In Rambarran v. Gurrucharan (1970) 1 All E. R. 749 Lord Donoyan after quoting the above passage said at page 751:"where no more is known of the facts therefore than that at the time of an accident the car was owned but not driven by A it can be said that As ownership affords some evidence that it was being driven by his servant or agent. "from these authorities it is clear that where a car is driven by a person other than the owner the presumption is raised that the driver of the car is the servant or agent of the owner. I think the rule is so laid down because in the course of human conduct whether or not the driver is the servant or agent of the owner or whether or not there is connection between the driver and the owner should be within the knowledge of the owner of the car In the case here it is admitted that the defendant was the owner of the car. The presumption is raised that the driver was his servant or agent. The presumption is raised that the driver was his servant or agent. It is for the defendant to rebut the presumption by proof of the actual facts. Since he has chosen to remain silent the irresistible conclusion is that the driver was his servant or agent I therefore find the defendant liable. (Emphasis added)". In the case of Barnard v. Sully the Kings Bench in terms held that the more usual fact was that a motor-car was driven by the owner or the servant or agent of the owner and therefore like fact of ownership was some evidence that at she material time the motor-car was being driven by the owner of it or by his servant or agent. If the owner wants to deny it then he has to lead the evidence in rabuttal by proof of actual facts. The case on Barnard V. Sully was consdered by Kings Bench Division in the case of Hewitt v. Bonvin and another 1940 (1) Kings Bench Division 188 and the Court held at page 194 as under:-"it is true that if a plaintiff proves that a vehicle was negligently driven and that the defendant was its owner and the court is left without further information it is legitimate to draw the inference that the negligent driver was either the owner himself or so servant or agent of his". In the case of Rambaren v. Gurrucharan 1970 (1) All England Report of 749 the Privy Council has quoted with approval the decision of Barnard v. Sully and held that where no more is known of the facts therefore than that at the time of an accident the car was owned but not driven by A it can be said that As ownership affords seem evidence that it was being driven by his servant or agent. But when the facts bearing on the question of service or agency are known or sufficiently known then clearly the problem must be decided on the totality of the evidence. 21 In this case as stated above the original owner opponent No. 3 has not stepped into the witness box or has not appeared before the Court. Opponent No. 2 has merely stated that opponent No. 3 was keeping the scooter at his house as he wanted to start business at Surat. It is not his say that he drove the scooter on that day. Opponent No. 2 has merely stated that opponent No. 3 was keeping the scooter at his house as he wanted to start business at Surat. It is not his say that he drove the scooter on that day. He admits the fact that the keys of the scooter were with him. Therefore from this it would be reasonable to draw an inference that either opponent No. 3 or opponent No. 2 drove the scooter on the relevant day. It is not the say of opponent No. 2 that scooter was stolen away by somebody else. None of them has explained how the scooter went on the road. No evidence in rebuttal is led either by opponent No. 2 3 or opponent No. 4 Insurance Company. In this view of the matter in our opinion it will be reasonable to presume that the scooter was driven by the owner his agent or his servant and therefore opponents Nos. 2 and 3 would be liable for the tortuous act. Once we arrive at the conclusion that the opponent No. 3 the owner is liable then the result it would be that the Insurance Company would also be jointly and severally liable for the tortious act as the Insurance Company is bound to indemnify opponent No. 3 ( 17 ) MR. Soparkar the learned advocate for the Insurance Company submitted that there is no evidence on record to show that the said vehicle was driven by a period who was having licence. He submitted that it was the case of the claimants that opponent No. 1 drove the said scooter and it was proved that opponent No. 1 was not having licence. Therefore the learned Tribunal was right in arriving at the conclusion that as there Was breach of condition of policy the Insurance Company was not liable. We have arrived at the conclusion that there is no evidence on record to hold that opponent No. 1 was driving the scooter. Therefore the question should be whether the said scooter was driven by a person who was holding the licence or not. ( 18 ) IN our view this submission of the learned advocate for the Insurance Company is also misconceived because under sec. 96 of (the Motor Vehicles Act the Insurance Company is entitled to defend the action on the ground mentioned in sub-sec. (2) of sec. 96. ( 18 ) IN our view this submission of the learned advocate for the Insurance Company is also misconceived because under sec. 96 of (the Motor Vehicles Act the Insurance Company is entitled to defend the action on the ground mentioned in sub-sec. (2) of sec. 96. Apart from other grounds sub-sec. (2) (b) (ii) provides that insurance Company may defend the action by showing that the vehicle was driven by a person who was not duly licensed or by any person who has been disqualified for holding or obtaining a driving licence. Now this provision on the face of it shows that it is for the Insurance Company to prove that the which was driven by a person who was not holding the licence. In the case of United India Insurance v. Surendarsinh 22 G. L. R. 4963 the Division Bench of this Court in terms held that the burden to establish that the driver was not holding a licence to drive a vehicle was on the Insurance Company. The Court held that a mere averment to that effect in the written statement and a mere suggestion to a party in that behalf in cross-examination is not sufficient to discharge the said duty. The Division Bench relied upon the decision of the Supreme Court in the case of Bishan Devi v. Sirbaksh Singh A. I. R. 1979 S. C. 1862 In Bishan Devis case in paragraph 112 the Supreme Court has held as under:-" Under Sec. 96 (2) (b) (ii) the insurer bean defend a claim for compensation on the ground that the vehicle was driven by a person who was not duly licensed. Apart from making the averment in his written statement the insurer did not take any: steps to establish that the vehicle was driven by a person who was pot properly. licensed. The evidence of A. Ws. 4 and 5 who they been examined clearly establishes that Anoop Singh was driving the vehicle. The two stray suggestions and the reply given by the two witnesses is not sufficient to establish that Anoop Singh was-not licensed to drive a truck. It is the duty of the insurer to have substantiated his plea. We have no hesitation in rejecting the insurers plea as false especially as the owner who filed the written statement a month later did not support the formers plea". It is the duty of the insurer to have substantiated his plea. We have no hesitation in rejecting the insurers plea as false especially as the owner who filed the written statement a month later did not support the formers plea". In the present case also the Insurance Company has not led any evidence toshow that the driver of the vehicle was not holding any valid licence. As such there is no evidence on record to show who was driving the vehicle ant Insurance Company has not bothered to lead evidence on record. It is proved that opponent No. 2 was having valid licence. There is no evidence on record to show that opponent No. 3 the owner was not having any valid licence to drive the vehicle. In this view of the matter it cannot be held that the driver of the vehicle was not a licence-holder. In the case of New India Assurance Co. v. Smt. Nathiben 23 G. L. R. 411 the Full Bench of this Court after considering the scheme of sec. 96 has laid down that it is the duty of the insurer in order to successfully disclaim his liability to establish:1 that on the date of the contract of insurance the insured vehicle was expressly or implicitly not covered by a permit to ply for hire or reward that is by a permit to carry any passenger for hire or reward. 2 that there was a specified condition in the policy which excluded the use of the insured vehicle for the carriage of passengers for hire or reward and3 that the vehicle was in fact used in the bleach of such specified condition on the occasion giving rise to the claim. This decision also in terms lays down that it is for the insurer to establish that the vehicle was in fact used in breach of specified condition on the occasion giving rise to the claim. ( 19 ) SAME view has been taken in the case of M. Subramania v. Govindaraj A. I. R 76 Karnataka 114. In that case the driver and the owner did not contest the claim filed by the claimant. The Insurance Company filed its written Statement and contended that the driver of the lorry did not hold a valid licence to drive at the time of the accident. In that case the driver and the owner did not contest the claim filed by the claimant. The Insurance Company filed its written Statement and contended that the driver of the lorry did not hold a valid licence to drive at the time of the accident. So the insurance Company was not liable to pay the damages. Negativing the said contention the Division Bench of the Karnataka High Court held that it was for the Insurance Company to establish any breach of condition in the policy and that the burden was on the company to prove that the vehicle was driven by a driver without valid licence at the time of accident. It was further held that as the Insurance Company had failed to discharge the burden the Insurance Company was liable to pay compensation. The Andhra Pradesh High Court in the case of India Mutual Insurance Co. v. Vijaya Ramulu 1973 A. C. J. 366 had held that it was for the Insurance Company to establish that the ownership of the vehicle was transferred by the original owner to another person on the date of accident. As the Insurance Company has filed to establish it the Insurance Company was liable. Same view has been taken by the Division Bench of the Madhya Pradesh High Court in the case of Ruby General Insurance Co Ltd. v. Kesharbai 1976 A. C. J. 485. In the case also the driver remained absent and the case proceeded ex-parte against him. the claim was contested by the truck owner and the insurer. It was contended by the insurer that the driver had no driving licence and the Insurance Company was not liable to pay compensation. The Court Negatived the contention of the Insurance Company and held that admittedly the appellant was the insurer of truck. Therefore it cannot escape the liability to pay compensation without establishing the fact that and the contract to was not liable to indemnify the insured for compensation arising out of the fatal accident. Same view is taken by the Karnataka High Court in the case of Sanjiva Shetty v. Anantha 1976 A. C J. 261 and Patna High Court in the case of Jogindra v. Delhi Singh A. I. R. 1964 Patna 548. There also the Court held that it was for the Insurance Company to lead satisfactory evidence to prove that the driver had no driving licence. There also the Court held that it was for the Insurance Company to lead satisfactory evidence to prove that the driver had no driving licence. ( 20 ) VIEW of this settled legal position in our opinion the contention raised by the learned advocate for the Insurance Company is without any substance. It was for the Insurance Company to prove before the Court that the driver of the scooter was not holding a valid licence. No evidence has been led on behalf of the Insurance Company before the Court. Mere filing of the written statement would not in any way be sufficient for proving the contention raised by the Insurance Company. . ( 21 ) MR. Soparkar however submitted that before the trial Court it was the contention of the claimant that opponent No. 1 was a driver the scooter and therefore the Insurance Company was misled or misguided by the said contention and therefore it had not led any evidence on that score. In our opinion this contention is also without any substance because in paragraph 9. 2 of the application the claimants have stated that they were not having any personal knowledge that either opponent No. 1 or somebody else was driving the said scooter at the relevant time. Even in the evidence Shantilal has not stated that he had received the information that opponent No. 1 was driving the scooter. As such there was no evidence on record to prove that opponent No. 1 was driving the scooter at the relevant time. As the opponent No. 3 the owner had not disclosed the correct facts before the Court we have raised the presumption as stated above that the scooter was driven by the owner or his servant or his agent. If the Insurance Company was having any other knowledge or information it could have disclosed it before the trial Court. Therefore the contention of the learned advocate that the appellant or the claimants should not be permitted to raise the contention which is not pleaded is without any substance. He has relied upon certain decisions laying down the proposition that the Court should not look into the evidence which is contrary to the pleadings. Therefore the contention of the learned advocate that the appellant or the claimants should not be permitted to raise the contention which is not pleaded is without any substance. He has relied upon certain decisions laying down the proposition that the Court should not look into the evidence which is contrary to the pleadings. We are not discussing the said decisions because in this case it is not the definite say of the Insurance Company in the written statement that a particular person named X Y Z was driving the scooter at the relevant time. We have dealt with this case on the basis of the presumption as stated above and therefore also there is no question of permitting the parties to rely upon any evidence which is contrary to pleading. In this view of the matter the further contention d the learned advocate that in any case the matter should be remanded to the trial Court is also of no substance because in this case the decision is based upon the presumption arising out of the fact that opponent No. 3 was the owner of the scooter and he had not entered into the witness box to prove and show that somebody else was driving the vehicle without his permission or authority and that the Insurance Company had not led the evidence to show that the said driver was not holding valid licence. ( 22 ) THE learned advocate for the Insurance Company further submitted that in any set of circumstances the contention of the applicants that this Court should hold the Insurance Company jointly and severally liable for the damages should not be accepted because the claimants have not preferred any appeal against the award passed by the Tribunal. In our view considering the provisions of Order 41 Rule 33 this Court has ample jurisdiction to pass an appropriate order which ought to have been passed by the trial Court. In our view considering the provisions of Order 41 Rule 33 this Court has ample jurisdiction to pass an appropriate order which ought to have been passed by the trial Court. In the case of Koksingh v. Deokabai A. I. R. 1976 S. C. 634 the Supreme Court after considering the provisions of Order 41 Rule 33 has in terms held that the expression which ought to have been passed means what ought in law to have been passed and if an appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the Court below it may pass or make such further or other decree or order as She justice of the case may require. In the case of Bharatbhai v. Mafatbhai 20 G. L. R. 517 this Cout has also taken a similar view. In that case the Court was required to consider a question whether an award can be made in favour of the original claimants who were respondents Nos. 1 and 2 against respondents Nos. 3 and 4 though the original claimants have not come in appeal against the part of the award by which respondents Nos. 3 and 4 have been absolved of their liability to lay compensation as awarded. Relying upon the decision in the case of Panna Lal v. State of Bombay and Ors. A. I. R. 1963 S. C. 1516 the Court held that in this type of cases the Court should exercise its power under Order 41 Rule 33 of the Civil Procedure Code otherwise the original claimants would be left high and dry since in a given case the claimants may not be able to execute the decree and obtain the complete relief granted under the decree front the Opponents who are made liable under the award. In the case of Panna Lal v. State 6 Bombay and Ors. (supra) the Supreme Court had also exercised the power under Order 41 Rule 33 of the Civil Procedure Code while Allowing the appeal and reversing the decree of the trial Court by granting a decree in favour of the plaintiff-respondent against co-respondents who were absolved by the trial Court. In this view of the matter this submission is also without any substance. ( 23 ) IN the result the appeal is partly allowed. In this view of the matter this submission is also without any substance. ( 23 ) IN the result the appeal is partly allowed. It is held that appellant No. 1 Prakashchandra Kantilal is not held liable because it is found that at the relevant time he was not driving the scooter and therefore he is not liable to pay any damages. It is further held that appellant No. 2 Jashvantlal Ichchharam respondent No. 10 Girdharlal Uttamchand (original opponent No. 3) and respondent No. 11 New India Assurance Co. Ltd. (original opponent No. 4) are jointly and severally liable to pay to the claimants local compensation (of Rs. 40 500 with interest at the rate of 6 per cent per annum from the date of the application till realisation. Considering the facts and circumstances of the case there shall be no order as to costs throughout. .