judgement:
No. 108 of 1961.
Writ Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights.
2 M. C. Setalvad, Attorney General of India, Rameshwar Nath, section N. Andley and P. L. Vohra, for the petitioner.
C. K. Daphtary, Solicitor General of India, K. L. Misra, Advocate General, U.P., K. B. Asthana and C. P. Lal, for the respondents.
April 17.
The Judgment of the Court was delivered by VENKATARAMA AIYAR, J.
The petitioner is a company incorporated under the Indian Companies Act, its registered office being at Kanpur in the State of Uttar Pradesh, and it is carrying on business in the manufacture and sale of jute goods.
By a notification dated March 31, 1956, the State of Uttar Pradesh imposed a tax of one anna in the rupee on the sale proceeds of jute.
Previously thereto, the tax payable on sale of jute was six pies in the rupee.
This notification having been struck down by the High Court of Allahabad as unauthorised and inoperative, the State legislature enacted the U. P. Sales Tax (Validation) Act,.
1958 (U. P. Act XV of 1958), hereinafter referred to as the Validation Act, validating the said notification as from March 31, 1956.
In this petition filed under article 32 of the Constitution, the petitioner contends that notwithstanding the Validation Act, the notification in question continues to be void and inoperative, because it has not in fact been validated, and because the Act itself is ultra vires.
The impugned notification was, it may be mentioned, superseded by a fresh notification on August 1, 1956, and the present dispute relates only to the tax on sales effected between April 1, 1956, and July 31, 1956.
If the Validation Act is intro vires, the tax payable by the petitioner would, in accordance with the impugned notification, be Rs. 1,26,529 3 0, whereas if the said Act is ultra vires, the tax would be reduced by half Though the point for decision is a simple one lying within a narrow compass, to reach it one has to wade through a perfect morass of statutes, notifications and judicial pronouncements.
We begin with what has 4 been termed the "Principal Act" by which sales tax was imposed in the Province.
That is the U. P. Sales Tax Act No. XV of 1948, and that came into force on April 1, 1948.
There were subsequent amendments to it in 1948, 1950 and 1952, but they are not material for the present discussion.
It is sufficient to refer to section 3 A as it stood on March 31, 1956, when the notification in question was issued.
This section ran as follows: "3 A. Single point taxation (1) Notwithstanding anything contained in Section 3, the State Government may by notification in the official Gazette declare that the turnover in respect of any goods or class of goods shall not be liable to tax except at such single point in the series of sales by successive dealers as the State Government may specify.
(2) If the State Government makes a declaration under sub section (1) of this section, it may further declare that the turnover of the dealer, who is liable to pay tax on the sale of such goods, shall in respect of such sales, be taxed at such rate as may be specified not exceeding one anna per rupee if the sale relates to goods specified below: (i) Motor vehicles including motor cars, motor taxi cabs, motor cycles and cycle combinations, motor scooters, motorettes, motor omnibuses, motor vans and motor lorries.
Chassis of motor vehicles.
Articles including rubber and other tires and tubes and batteries adapted for use as motor part and accessories of motor vehicles, not being such arti cles as are ordinarily also used for other purposes than as parts of accessories of motor vehicles.
(ii) Refrigerators and air conditioning plants.
(iii) (a) Wireless reception instruments, apparatus and component parts thereof, including all electrical valves, accumulators, amplifiers and loudspeakers which are not specially designed for purposes other than wireless reception.
(b) Radiogramophones.
(iv) Cinematographic, photographic and other cameras.
projectors and enlargers and films, plates, papers and cloth required for use therewith.
5 (v) Scents and perfumes, and nine pies per rupee if it relates to any other goods.
" It was under this provision that the U. P. Government had issued a notification on June 8, 1948, imposing a tax of six pies in the rupee on the sale of jute.
In exercise of the power conferred by article 213(1) of the Constitution, the Governor of Uttar Pradesh issued on March 31, 1956, Ordinance No. IX of 1956, and that was published in the Official Gazette on the same date.
Under this Ordinance the whole of subsection (2) of section 3 A as it then stood was deleted and the following substituted: "(2) If the State Government makes a declaration under subsection (1), it may further declare that the turnover in respect of such goods shall be liable to tax at such rate not exceeding one anna per rupee as may be specified.
" The effect of this provision was to exact one ceiling rate of one anna per rupee on the sale proceeds for all goods leaving it to the State to fix within the ceiling such rates of tax for such goods as it might determine.
On the same date, the Government published the following notification No. ST.
905/X on which the entire controversy has arisen.
"In exercise of the power conferred by section 3 A of the U. P. Sales Tax Act, 1948, as amended from time to time, and in supersession of all previous notifications on the subject, the Governor of Uttar Pradesh is hereby pleased to declare that the turnover in respect of the goods specified in the List below shall not with effect from April 1, 1956, be liable to tax except (a) in the case of goods imported from outside, Uttar Pradesh at the point of sale by importer; and (b) in the case of goods manufactured in Uttar Pradesh, at the point of sale by the manufacturer; and the Governor is further pleased to declare that such turnover shall with effect from the said date be taxed at the rate of one anna per rupee.
List 18.
Jute goods" 6 In due course, the U. P. Sales Tax Ordinance No. IX of 1956 was replaced by the U. P. Sales Tax (Amendment) Act XIX of 1956, and that came into force on May 28, 1956.
It merely reproduces the terms of the Ordinance No. IX of 1956 with this modification which is consequential, that the amended section including section 3 A shall "be deemed to have effect on and from the first day of April, 1956".
If notification No. ST.
905/X dated March 31,1956, is valid there is no question that the petitioner would be liable to pay sales tax for the period in question at the rate of one anna per rupee on the sale proceeds.
One of the dealers who had been assessed to sales tax in accordance with this notification filed an application under article 226 in the High Court of Allahabad calling in question its validity and this proved successful, the court holding that there was no power in the State to issue the impugned notification under section 3 A on March 31, 1956, as that section was itself to come into force only on April 1, 1956, vide Adarsh Bhandar vs Sales Tax Officer (1).
The correctness of this decision is not under challenge in these proceedings.
We do not therefore desire to express any opinion on it.
With a view to remove the defect pointed out in Adarsh Bhandar vs Sales Tax Officer (1), the State legislature passed the U. P. Sales Tax (Amendment) Act XXIV of 1957.
That Act received the assent of the President on August 31, 1957, and was published on September 3, 1957.
It runs, so far as is material, as follows: "For sub section (2) of Section I of the U. P. Sales Tax (Amendment) Act, 1956, the following shall be and be deemed to have always been substituted: 'This Section, so much of Section 3, as relates to the substitution of the second proviso to sub section (1) of Section 3 of the U. P. Sales Tax Act, 1948 (hereinafter called the principal Act) and section 4 shall have effect on and from the 31st day of March, 1956 '.
" (1) A.I.R. 1957 All.
475. 7 The result of this amendment was that section 3 A was given retrospectively operation from March 31, 1956, instead of April 1, 1956, as originally enacted.
The intention behind the legislation is obvious.
If the impugned notification was, as held in Adarsh Bhandar vs Sales Tax Officer (1), invalid, because it was issued before section 3 A was in operation, that objection could no longer hold good as that section would now operate from a point of time anterior to the issue of the notification.
If the State thought that this legislation would give a quietus to the controversy, they were sadly mistaken.
After the Amendment Act of 1957 came into force, another dealer who was sought to be assessed pursuant to the notification dated March 31, 1956, filed a petition under article 226 before the Allahabad High Court and raised the contention that as the Amendment Act merely amended section 3 A and did not in terms validate the impugned notification, no proceedings could validly be taken under that notification and that therefore the proposed levy was illegal.
This contention was again upheld by a Full Bench in Firm Bangali Mal vs Sales Tax Officer (2), which held that there was a difference between the existence of a power and its actual exercise, that while by reason of Act XXIV of 1957, a power had been conferred on Government to issue a notification on March 31, 1956, the notification actually issued on that date could not be referred to that power, that it was in exercise of the power supposed to have been conferred by section 3 A as it stood on March 31, 1956, and that in consequence the impugned notification was not saved by the new Act.
This decision set the legislature again on the move and that brings us to what may be said to be the final round in the game.
The State legislature enacted a fresh legislation for the purpose of effectuating the impugned notification.
That was U. P. Sales Tax Validation Act XV of 1958.
It received the assent of the President on May 3, 1958, and was published in the Official Gazette on May 6, 1958.
The preamble to the Act states that "it is expedient to provide for (1) A.I.R. 1957 All. 475.
(2) A.I.R. 1958 All, 478. 8 the validation of certain notifications issued under the U. P. Sales Tax Act, 1948, (U. P. Act XV of 1948) and any action taken in pursuance thereof".
Section 3 of the Act which deals with the present matter runs as follows: "3.
Validation of certain notifications and action taken in pursuance thereof. (1) Notwithstanding any judgment, decree or order of any court, the notifications specified in Part A, Part B and Part C of the Schedule shall be deemed to have been issued in exercise of the powers conferred respectively by section 3, section 3 A and section 4 of the U. P. Sales Tax Act, 1948, as if the said sections were in force on the date on which the notifications were issued in the form in which they were in force immediately before the commencement of this Act and all the said notifications shall be valid and shall be deemed always to have been valid and shall continue in force until amended, varied or rescinded by any notification issued under any of the said section.
(2) Anything done or any action taken (including any order made, proceeding taken, direction issued, jurisdiction exercised, assessment made or tax levied or collected) purporting to have been done or taken in pursuance of any of the notifications specified in the Schedule shall be deemed to be and to have been validly and lawfully done or taken." In Part B are set out the notifications issued in exercise of the powers conferred by section 3A of the U.P. Sales Tax Act, 1948, and one of them is the impugned notification No. ST. 905/X.
If this legislation is valid, the impugned notification stands validated and the petitioner would be liable to pay tax in accordance therewith.
But the petitioner contends that the Validation Act has not brought about any change in the situation and that the notification dated March 31, 1956, continues to be null and void now as before the Act.
Two grounds have been urged in support of this contention that on its true construction the Act does not in fact validate the impugned notification and that it is not a 9 law which the State legislature was competent to enact and it is therefore a nullity.
We must now examine these contentions.
As regards the first contention, the argument in support of it is that the words, "in the form in which they were in force immediately before the commencement of this Act" in section 3 must, in their setting, be read as qualifying the word, "notifications" and not the word "sections", and in that view the notification in question is subject to the same infirmity which attached to it when it was published on March 31., 1956.
We are wholly unable to appreciate this contention.
The object of the legislation as stated in the long title and in the preamble to the Act was to validate the impugned notification in relation to the amended section.
Schedule B to the Act expressly mentions that notification.
And if we are now to accede to the contention of the petitioner, we must hold that though the legislature set about avowedly to validate the notification dated March 31, 1956, it failed to achieve that object.
A construction which will lead to such a result must, if that is possible, be avoided.
The words, "in the form in which they were in force immediately before the commencement of this Act", no doubt occur after the word, "notifications".
But then the words, "in the form" can have no reference to the impugned notification, because it had never changed form, whereas they were quite appropriate to section 3A, because it had been amended.
It should further be noted that the Validation Act was published both in Hindi and in English, and both of them were authorised versions.
The words in the Hindi version make it clear beyond all doubt that the words, "in the form in which they were in force immediately before the commencement of this Act" qualify the word "sections" and not the word "notifications".
That is the view expressed by a Bench of the Allahabad High Court in H. L. M. Biri Works vs Sales Tax Officer (1), on a comparison of the two versions, and we are in agreement with it.
There would have been no scope for this argument if transposing the 'words, the section read, "as if the said (1) A.I.R. 1959 All.
2 10 sections were, in the form in which they were in force immediately before the commencement of this Act, in force on the date on which the notifications were issued.
" But even in its present setting that is the meaning of the section, and the impugned notification must be held to be within the saving of the Validation Act.
We now proceed to examine the second contention of the petitioner that the validation Act is itself invalid as being ultra vires the powers of the State legislature under the Constitution.
The argument of the learned Attorney General in support of this contention may thus be stated.
The State legislature derives its authority to enact a law with respect to tax on the sale of goods under entry 54 in List II of the Seventh Schedule to the Constitution.
It has been held that a sale for the purpose of the entry must be what in law is recognised as sale.
Likewise, a law imposing tax on sales of goods must, to be intra vires, possess certain well defined characteristics associated with such laws.
In The Province of Madras vs Boddu Paidanna and Sons (1) it has been held that sales tax is a tax on the occasion of sale.
In the present case, the sales sought to be taxed took place between April 1, 1956 and July 31, 1956, whereas the Validation Act, by force of which the tax becomes payable, came into force in 1958.
It is therefore not a tax on the occasion of sale.
Moreover a sales tax is an indirect tax which can be passed on by the seller to the purchaser.
The Sales Tax Acts passed by the legislatures of several States provide for the seller collecting the tax from the purchaser as does the U. P. Sales Tax Act XV of 1948, vide section 8A. That could be done only if the tax was levied before the sale took place.
Therefore by the very nature of it there could be no retrospective legislation in respect of sales tax.
And finally it is argued that the imposition of a tax retrospectively would be inconsistent with the provisions of the U.P. Sales Tax Act, 1948, and could not have been contemplated by that Act.
Such for example are the provisions of section 8A which provide for the registration of dealers for (1) 11 the assessment years, the deposit into Treasury of sales tax collected from the purchasers in certain contingencies, section 14 of the Act which imposes penalty for non registration under section 8A, and rule 63 which provides for the deposit of the sales tax collected under section 8A(4) within thirty days of the expiry of the month in which the amount is charged.
It is accordingly contended that whether we have regard to the true features of the sales tax legislation or the provisions of the U.P. Sales Tax Act, the Validation Act could not be held to be one with respect to sales tax, that it is therefore not within entry 54, and as there is no other entry in List II or List III of the Seventh Schedule to the Constitution, under which the legislation could be justified, it must be held to be ultra vires.
So ran the argument.
The point for decision., stating it succinctly, is whether the Validation Act is within the ambit of entry 54 in List II of the Seventh Schedule to the Constitution.
That entry confers on the States authority to enact a law with respect to tax on sales of goods.
Now what is the extent of that authority? There must be in fact a sale as recognised by law.
It is only then that a tax could be imposed.
But if the transaction sought to be taxed is not a sale, a law which seeks to tax it, treating it as a, sale, would be ultra vires.
Thus in The Sales Tax Officer vs Messrs. Budh Prakash Jai Prakash (1) a tax on agreement to sell was held to be not authorised by the entry, and in The State of Madras vs Gannon Dunkerley & Co., (Madras) Ltd. (2), a tax on the supply of materials in a contract for the construction of works simpliciter, on the footing of a sale was held to be outside the entry, and the legislation which imposed such a tax was struck down as ultra vires.
But where the transaction is one of sale of goods as known to law, the power of the State to impose a tax thereon is plenary and unrestricted subject only to any limitation which the Constitution might impose, and in the exercise of that power, it will be competent to the legislature to impose a tax (1) ; (2) ; 12 on sales,which had taken, place prior to the enactment of the legislation.
But it is urged on the strength of certain observations in The Province of Madras vs Boddu Paidanna and Sons (1) that a sales tax is a tax on the occasion of sale, and that therefore it could not be imposed with retrospective operation.
This contention is, in our judgment, wholly without substance.
Now, the point for decision in that case was whether a tax imposed by a Provincial legislature on the sale of oil by a person who manufactured it was bad on the ground that it was in essence an excise duty.
While a sales tax could be imposed by a Provincial legislature, an excise duty could be imposed only by the Federal legislature.
In holding that the tax in question was a sales tax and not an excise duty, the court observed as follows: "The duties of excise which the Constitution Act assigns exclusively to the Central Legislature are, according to the Central Provinces Case, duties levied upon the manufacturer or producer in respect of the manufacture or production of the commodity taxed.
The tax on the sale of goods, which the Act assigns exclusively to the Provincial Legislatures, is a tax levied on the occasion of the sale of the goods.
Plainly a tax levied on the first sale must in the nature of things be a tax on the sale by the manu facturer or producer; but it is levied upon him qua seller and not qua manufacturer or producer." (P. 101).
In the context, the words, "on the occasion of the sale" have reference to the character of the transaction and not to the point of time at which the duty becomes leviable, and they have no bearing on the question as to when such a tax could be imposed.
And then it is argued that a sales tax being an indirect tax, the seller who pays that tax has the right to pass it on to the consumer, that a law which imposes a sales tax long after the sales had taken place deprives him of that right, that retrospective operation is, in consequence, an incident inconsistent with the true character of a sales tax law, and that the Validation Act is therefore not a law in respect of tax on the (1) 13 sale of goods, as recognised, and it is ultra vires entry 54.
We see no force in this contention.
It is no doubt true that a sales tax is, according to accepted notions, intended to be passed on to the buyer, and provisions authorising and regulating the collection of sales tax by the seller from the purchaser are a usual feature of sales tax legislation.
But it is not an essential characteristic of a sales tax that the seller must have the right to pass it on to the consumer, nor is the power of the legislature to impose a tax on sales conditional on its making a provision for sellers to collect the tax from the purchasers.
Whether a law should be enacted, imposing a sales tax, or validating the imposition of sales tax, when the seller is not in a position to pass it on to the consumer, is a matter of policy and does not affect the competence of the legislature.
This question is concluded by the decision of this Court in The Tata Iron & Steel Co., Ltd. vs The State of Bihar (1).
The following observations of Das, C. J., bearing on this question might be quoted: " Under the 1947 Act the primary liability to pay the sales tax, so far as the State is concerned, is on the seller.
Indeed before the amendment of the 1947 Act by the amending Act the sellers had no authority to collect the sales tax as such from the purchaser.
The seller could undoubtedly have put up the price so as to include the sales tax, which he would have to pay but he could not realise any sales tax as such from the purchaser.
That circum stance could not prevent the sales tax imposed on the seller to be any the less sales tax on the sale of goods.
The circumstance that the 1947 Act, after the amendment, permitted the seller who was a registered dealer to collect the sales tax as a tax from the purchaser does not do away with the primary liability of the seller to pay the sales tax.
This is further made clear by the fact that the registered dealer need not, if he so pleases or chooses, collect the tax from the purchaser and some times by reason of competition with other registered dealers he may find it profitable to sell his goods (1) ; 14 and to retain his old customers even at the sacrifice of the sales tax.
This also makes it clear that the sales tax need not be passed on to the purchasers and this fact does not alter the real nature of the tax which, by the express provisions of the law, is cast upon the seller.
The buyer is under no liability to pay sales tax in addition to the agreed sale price unless the contract specifically provides otherwise.
See Love vs Norman Wright (Builders) Ltd. If that be the true view of sales tax then the Bihar Legislature acting within its own legislative field had the powers of a sovereign legislature and could make its law prospectively as well as retrospectively." (pp. 1378 1379).
The decision of this Court in Buchirajalingam vs State of Hyderabad (1) is also to the same effect.
The power of a legislature to enact a law with reference to a topic entrusted to it, is, as already stated, unqualified subject only to any limitation imposed by the Constitution.
In the exercise of such a power, it will be competent for the legislature to enact a law, which is either prospective or retrospective.
In The Union of India vs Madan Gopal(2) it was held by this Court that the power to impose tax on income under entry 82 of List I in Schedule VII to the Constitution, comprehended the power to impose income tax with retrospective operation even for a period prior to the Constitution.
The position will be the same as regards laws imposing tax on sale of goods.
In M. P. V. Sundararamier & Co. vs The State of Andhra Pradesh (3), this Court had occasion to consider the validity of a law enacted by Parliament giving retrospective operation to laws passed by the State legislatures imposing a tax on certain sales in the course of inter State trade.
One of the contentions raised against the validity of this legislation was that, having regard to the terms of article 286(2), the retrospective legislation was not within the competence of Parliament.
In rejecting this contention, the Court observed: (1) A.I. R. , 759 60.
(2) ; (3) ; 15 "Article 286(2) merely provides that no law of a State shall impose tax on inter State sales 'except in so far as Parliament may by law otherwise provide '.
It places no restrictions on the nature of the law to be passed by Parliament.
On the other hand, the words 'in so far as ' clearly leave it to Parliament to decide on the form and nature of the law to be enacted by it.
What is material to observe is that the power conferred on Parliament under article 286(2) is a legislative power, and such a power conferred on a Sovereign Legislature carries with it authority to enact a law either prospectively or retrospectively, unless there can be found in the Constitution itself a limitation on that power." (p. 1460).
And it was held that the law was within the competence of the legislature.
We must therefore hold that the Validation Act is not ultra vires the powers of the legislature under entry 54, for the reason that it operates retrospectively.
It was finally urged on the basis of sections 8 A, 14 and rule 23 of the U. P. Sales Tax Act that they contemplated only a prospective legislation and that those sections would be impossible of compliance under the present legislation.
This is a consideration which is wholly foreign to the present question.
The point which we have got to decide is whether the Validation Act is ultra vires.
That has to be determined solely on the construction of entry 54 in List II in the Seventh Schedule, and any other provisions of the Constitution bearing on the question.
Even assuming that the provisions of the U. P. Sales Tax Act XV of 1948 contemplate a levy of tax in future, that does not affect the power of the legislature under entry 54 to enact a law with retrospective operation.
It can only result in those provisions being unenforceable as regards the levy under the impugned notification.
Dealing with a similar contention in M. P. V. Sundararamier & Co. vs The State of Andhra Pradesh (1), this Court observed: "It is also contended that under the Sales Tax (1) ; 16 Acts, the levy of tax is annual and the rules contemplate submission of quarterly returns and payment of taxes every quarter on the admitted turnover, and that a conditional legislation under which payment of tax will become enforceable in fururo would be inconsistent with the scheme of the Act and the rules.
But this argument, when examined, comes to no more than this that the existing rules do not provide a machinery for the levy and the collection of taxes which might become payable in future, when Parliament lifts the ban.
Assuming that is the true position, that does not affect the factum of the imposition, which is the only point with which we are now concerned.
That the States will have to frame rules for realising the tax which becomes now payable is not a ground for holding that there is, in fact, no imposition of tax." (p. 1454).
None of the grounds urged by the petitioner in support of the contention that the Validation Act is ultra vires can be sustained.
In the result we must hold that the Validation Act is intra vires, and the impugned notification dated March 31, 1956, stands validated by it.
This petition must therefore be dismissed with costs.
Petition dismissed.

summary/full:
In exercise of the power conferred by section 3A(2) of the U.P. Sales Tax Act, 1948, which enabled the State Government, by notification, to fix the rate of the tax to be levied on the sales of goods specified in the section not exceeding nine pies per rupee, the Government issued at notification dated June 8, 1948 imposing a tax of six pies in the rupee on sales of jute.
On March 31, 1956, the Governor of Uttar Pradesh issued an Ordinance, inter alia, amending section 3A(2) of the Act, the effect of which was to enact one ceiling rate of one anna per rupee on the sale proceeds for all goods leaving it to the State to fix within the ceiling such rates of tax for such goods as it might determine.
On the same date the Government issued a notification by which sales on jute were liable to pay sales tax at the rate of one anna per rupee on the sale proceeds.
The Ordinance was replaced by U.P. Sales Tax (Amendment) Act, 1956, under which the amended section shall "be deemed to have effect on and from April 1, 1956".
One of the dealers who had been assessed to sales tax in accordance with the notification filed an application under article 226 of the Constitution of India, calling in question its validity, and the High Court of Allahabad held that there was no power in the State to issue the notification under section 3A(2) on March 31, 1956, as that section was itself to come into force only on April 1, 1956.
With a view to remove the defect pointed out in said decision, the State Legislature passed the U.P. Sales Tax (Amendment) Act, 957, but this in turn having been declared by the Allahabad High Court not being effective in saving the notification, the legislature ultimately enacted the U.P. Sales Tax (Validation) Act, 1958.
Section 3 of this Act provided that notwithstanding any judgment of any court the notification dated March 31, 1956, shall be deemed to have been issued in exercise of the powers conferred by section 3A of the U.P. Sales Tax Act, 1948, as if the said section was in force on the date on 2 which the notification was issued in the form in which it was in force immediately before the commencement of this Act.
The petitioner who was carrying on business in the manufacture and sale of jute goods filed an application under article 32 of the Constitution and contended that the Validation Act of 1958, had not brought about any change in the situation on the grounds (1) that the words "in the form in which it was in force immediately before the commencement of this Act" in section 3 must be read as qualifying the word "notification" and not the word "section" and in that view the notification in question was subject to the same infirmity which attached to it when it was published on March 31, 1956, and (2) that the State Legislature was not competent to enact a law imposing sales tax retrospectively and therefore the Validation Act was ultra vires.
Held: (1) that on its proper construction, the words "in the form in which it was in force immediately before the commencement of this Act" in section 3 of the U.P. Sales Tax (Validation) Act, 1958, qualify the word "section" and not the word "notification", and that on that view the impugned notification was within the saving clause of the Validation Act.
H. L. M. Biri Works vs Sales Tax Officer, A.I.R. 1959 All. 208, approved.
(2) that the power of a legislature to enact a law with re ference to a topic entrusted to it is unqualified and that in the exercise of such a power it will be competent for the legislature to enact a law which is either prospective or retrospective.
Accordingly, the Validation Act is not ultra vires the powers of the legislature under entry 54 in List II of the Seventh Schedule to the Constitution, for the reason that it operates retrospectively.
The fact that the seller is not in a position to pass the sales tax on to the consumer does not affect the competence of the legislature to enact a law imposing a sales tax retrospectively as that is a matter of policy.
The Province of Madras vs Boddu Paidanna and Sons, [1942] F.C.R. go, explained.
The Tata Iron & Steel Co., Ltd. vs The State of Bihar, ; , Buchirajalingam vs State of Bihar, A.I.R. 1958 S.C. 756 and M.P.V. Sundararamier & Co. vs The State of Andhya Pradesh, ; , followed.
The Union of India vs Madan Gopal Kabra, ; , relied on.


judgement:
Appeal No. 419 of 1957.
Appeal by certificate from the judgment and decree dated January 16, 1953, of the Madras High Court in A. section No. 164 of 1949.
M. section K. Sastri, for the appellants.
Ravindra Narain, for the respondents.
April 14.
The Judgment of the Court was delivered by SUBBA RAO, J.
This appeal by certificate, is directed against the judgment of the High Court of Judicature at Madras dated January 16, 1953, modifying the decree of the Court of the Subordinate Judge, Dindigul, in 0.
section No. 7 of 1948, a suit filed by the respondents for compensation under the provisions of the (XIII of 1855).
The appellant, Gobald Motor Service Ltd. (hereinafter called the Company), was engaged in the business of transporting passengers by bus between Dharapuram and Palni, among other places, in the State of Madras.
On September 20, 1947, one of the buses of the Company, bearing registration number MDC 2414, left Dharapuram for Palni at about 3 p.m.
At a place called Thumbalapatti between Dharapuram and Palni, one Rajaratnam, along with his brother by name Krishnan, boarded the bus.
The bus met with an accident at about 3 miles from Palni, as a result of which some of the passengers, including Rajaratnam, sustained injuries.
Rajaratnam died of 932 the injuries received in the accident on September 23, 1947.
The first plaintiff, his father; the second plaintiff, his widow; and plaintiffs 3 to 7, his sons, instituted 0.
section No. 7 of 1948 against the Company in the Court of the Subordinate Judge, Dindigul, for compensation under section 1 of the (hereinafter called the Act) for loss of pecuniary benefit sustained by them personally, and under section 2 thereof for the loss sustained by the estate on account of the death of Rajaratnam.
They alleged in the plaint that the driver, who was in charge of the bus, was incompetent and inexperienced, that he was guilty of rash and negligent conduct in the driving of the bus, and that the accident was the result of his incompetence and negligence.
The Company in its written statement denied the said allegations and leaded that the accident was the result of the central plea of the left rear spring suddenly giving way, that Rajaratnam was also guilty of contributory negligence and that in any event the damages claimed were excessive.
The learned Subordinate Judge came to the conclusion that there was no proof that the bus was driven at a reckless speed at the scene of the accident, but the fact that the accident occurred on the off side of the road was itself evidence of his negligence and it had not been rebutted by the defendants.
He further held that the driver was not proved to be incompetent.
On those findings, he held that the defendants were liable for the negligence of their servant, and be awarded damages as follows: (1)Plaintiff 1 .
Rs. 3,600 under section 1 of the Act.
(2) Plaintiffs 2 to 7.
Rs. 25,200 under section 1 of the Act.
(3) Plaintiffs 2 to 7.
Rs. 6,000 under section 2 of the Act.
Against the said decree, the defendants preferred an appeal to the High Court and it came to be disposed of by a division bench of that court.
The High Court on a review of the entire evidence held that the speed at which the bus was driven was excessive, having regard to the nature of the ground on which the accident happened, that there was negligence on the part of the 933 driver, and that the appellants were liable therefore.
But the High Court discounted the plea that the appellants, apart from their being constructively liable for the negligence of the driver, were also negligent in employing Joseph, who was not a competent driver.
Both the courts, therefore, concurrently held that the accident occurred on account of the negligence of the driver.
On the question of damages, the High Court confirmed the amount of compensation awarded to the plaintiffs 2 to 7 both under sections 1 and 2 of the Act, but in regard to the first plaintiff, it reduced the compensation awarded to him from Rs. 3,600 to Rs. 1,000; with this modification, the appeal was dismissed with costs.
Learned counsel for the appellants raised before us the following points: (1) The finding of the High Court that the bus was driven at an excessive speed at the place where the accident occurred, based on probabilities, was erroneous.
(2) The concurrent finding of the two courts that respondents 2 to 7 would be entitled to damages in a sum of Rs. 25,200 for the loss of pecuniary advantage to them was not based upon any acceptable evidence but only on surmises.
(3) The High Court went wrong in awarding damages separately for loss of expectation of life under section 2 of the Act, as damages under that head had already been taken into consideration in giving compensation to respondents 2 to 7 for the pecuniary loss sustained by them by the death of Rajaratnam.
The first question for consideration is whether the accident was due to any negligence on the part of the driver Joseph.
A clear picture of the topography and the physical condition of the locality where the accident took place would, to a large extent, help us in deciding the said question.
The accident took place at Puliampatti where the road passed over a culvert and then took a sharp bend with a downward gradient.
To the east of the road was a drain and that was marked off by 5 stones 2 feet high.
At a distance of 20 or 25 feet from the stones, there were trees.
The bus after crossing the culvert crashed against the 5th stone with so much force that the latter 934 was uprooted and broken.
It next attacked a tamarind tree which was stated to be at a distance of 20 or 25 feet from the stone, and its bark was peeled off and it travelled some more distance before it finally came to rest.
The evidence disclosed that some of the passengers were knocked and thrown down within the bus itself and sustained injuries, while Rajaratnam was thrown out of the bus into the ditch at a place 161 feet south of the tamarind tree.
It must be self evident from the said picture of the accident that the bus must have been driven at a high speed.
P.Ws. 3 and 4, two of the passengers in the bus, P.W. 6, a brother of Rajaratnam, who also travelled in the bus, and P.W. 5, who ran a coffee and tea stall at the place of the accident, swore in the witness box that the bus was being driven at a high speed when the accident happened.
Their evidence reinforces the compelling impression of high speed caused by the objective features thrown out by the topography of the place of the accident.
On the other hand, on the side of the defendants (appellants herein) D. W. 2, who claimed to have travelled in the bus, deposed that the bus was travel ling at the usual speed, but his cross examination discloses that he was an improvised witness.
D.W. 3, who was sitting by the side of the driver, deposed to the same effect, but he was an employee of the Company and was obviously interested to support their case.
The evidence adduced on the side of the defence is certainly not convincing.
An attempt was made to calculate the speed of the bus on the basis of the time given by P. W. 6 as to when Rajaratnam boarded the bus and the time when the bus dashed against the tree, and the mileage covered between the two points within the said time.
On the basis of such a calculation it was contended that the speed would have been less than 15 miles per hour; but it is not possible to deduce the speed from such a calculation, as the witnesses were speaking of the time only approximately and not with reference to any watch.
That apart, it cannot be said that the bus maintained an even pace throughout.
The High Court, on the basis of the evidence and on broad probabilities, held that 935 the speed at which the bus was driven was excessive, having regard to the nature of the ground on which the accident happened; and having gone through the evidence, we are quite satisfied that the said finding was justified on the material placed before them.
It must, therefore, be held that there was negligence on the part of the driver.
Apart from the positive evidence, in the present case the accident took place not on the main road, but on the off side uprooting the stone at the drain and attacking a tamarind tree 25 feet away from the said stone with such a velocity that its bark was peeled off and the bus could stop only after travelling some more distance from the said tree.
The said facts give rise to a presumption that the accident was caused by the negligence of the driver.
Asquith, L. J., in Barkway vs South Wales Transport Co. (1) neatly summarizes the principles applicable as to onus of proof in the following short propositions: "(i) If the defendants ' omnibus leaves the road and falls down an embankment, and this without more is proved, then the res ipsa loquitur, there is a presumption that the event is caused by negligence on the part of the defendants, and the plaintiff succeeds unless the defendants can rebut this pre sumption.
(ii) It is no rebuttal for the defendants to show, again without more, that the immediate cause of the omnibus leaving the road is a tyre burst, since a tyre burst per se is a neutral event consistent, and equally consistent, with negligence or due diligence on the part of the defendants.
When a balance has been tilted one way, you cannot redress it by adding an equal weight to each scale.
The depressed scale will remain down.
This is the effect of the decision in Laurie vs Raglan Building Company Ltd., (2), where not a tyre burst but a skid was involved.
(iii) To displace the presumption, the defendants must go further and prove (or it must emerge from the evidence as a whole) either (a) that the burst itself was due to a specific cause which does not connote negligence on their part but points to its (1) , 471.
(2) 936 absence as more probable, or (b) if they can point to no such specific cause, that they used all reasonable care in and about the management of their tyres.
" The same principles have been restated in Halsbury 's Laws of England, 2nd Edn., Vol. 23, at p. 671, para 956, thus: "An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant 's negligence, or where the event charged as negligence tells its own story ' of negligence on the part of the defendant, the story so told being clear and unambiguous.
To these cases the maxim res ipsa loquitur applies.
Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part.
Where, therefore, there is a duty on the defendant to exercise care, and the circumstances in which the injury complained of happened are such that with the exercise of the requisite care no risk would in the ordinary course of events ensue, the burden is in the first instance on the defendant to disprove his liability.
In such a case, if the injurious agency itself and the surrounding circumstances are all entirely within the defendant 's control, the inference is that the defendant is liable, and this inference is strengthened if the injurious agency is inanimate.
" The said principles directly apply to the present case.
Here, the events happened tell their own story and there is a presumption that the accident was caused by negligence on the part of the appellants.
But it is ,said that this presumption was rebutted by proof that the accident was due to the rear central bolt of the bus 937 suddenly giving way.
The High Court, after considering the relevant evidence, held that it was not possible to hold that the accident was caused by the break in the bolt.
We have gone through the evidence and we do not see any flaw in that conclusion.
The scope of the liability of a master for the negligence of his servant has been succinctly stated by Baron Parke in Joel vs Morison (1) thus: 'The master is only liable where the servant is acting in the course of his employment.
If he was going out of his way, against his master 's implied commands, when driving on his master 's business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master 's business, the master will not be liable.
" Again, in Storey vs Ashton (2) Cockburn, L.C.J., says: "The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant.
" In the same case, Lush, J., said: "The question in all such cases as the present is whether the servant was doing that which the master employed him to do." In the present case, admittedly, on account of the negligence of the driver in the course of his employment the said accident happened, and, therefore, the appellants are liable therefore.
The next question is whether the courts below were right in awarding compensation of Rs. 25,200 for the pecuniary loss unstained by the respondents 2 to 7 by reason of the death of Rajaratnam, under section 1 of the Act.
Section 1 of the Act reads: "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had (1) (1834) 6 Car.
& P. 501 ; 172 E.R. 1338.
(2) 118 938 not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.
Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased; and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducing all costs and expenses, including the costs not recovered from the Defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct." This section is in substance a reproduction of the English Fatal Accidents Acts, 9 and 10 Vict.
93, known as the Lord Campbell 's Acts.
The scope of the corresponding provisions of the English Fatal Accidents Acts has been discussed by the House of Lords in Davies vs Powell Duffryn Associated Collieries Ltd.(1).
There, Lord Russell of Killowen stated the general rule at p. 606 thus: "The general rule which has always prevailed in regard to the assessment of damages under the, Fatal Accidents Acts is well settled, namely, that any benefit accruing to a dependent by reason of the relevant death must be taken into account.
Under those Acts the balance of loss and gain to a dependent by the death must be ascertained, the position of each dependent being considered separately." Lord Wright elaborated the theme further thus at p. 611: "The damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible (1) 939 to money value.
In assessing the damages all circumstances which may be legitimately Pleaded in diminution of the damages must be considered.
The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one band, the loss to him of the future pecuniary benefit, and, on the other, any pecuniary advantage which from whatever source comes to him by reason of the death.
" The same principle was restated with force and clarity by Viscount Simon in Nance vs British Columbia Electric Railway Company Ltd. (1).
There, the learned Lord was considering the analogous provisions of the British Columbia legislation, and he put the principle thus at p. 614: "The claim for damages in the present case falls under two separate heads.
First, if the deceased had not been killed, but had eked ou t the full span of life to which in the absence of the accident he could reasonably have looked forward, what sums during that period would he probably have applied out of his income to the maintenance of his wife and family?" Viscount Simon then proceeded to lay down the mode of estimating the damages under the first head.
According to him, at first the deceased man 's expectation of life has to be estimated having regard to his age, bodily health and the possibility of premature determination of his life by later accidents; secondly, the amount required for the future pro vision of his wife shall be estimated having regard to the amounts he used to spend on her during his lifetime, and other circumstances; thirdly, the estimated annual sum is multiplied by the number of years of the man 's estimated span of life.
, and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death; fourthly, further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate; and, fifthly, further amounts have to be deducted for the possibility of the (1) 940 wife dying earlier if the husband had lived the full span of life; and it should also be taken into account that there is the possibility of the widow remarrying much to the improvement of her financial position.
It would be seen from the said mode of estimation that many imponderable enter into the calculation.
Therefore, the actual extent of the pecuniary loss to the respondents may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture.
Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependent by the death must be ascer tained.
The burden is certainly on the plaintiffs to establish the extent of their loss.
Both the courts below found, on the evidence the following facts: (1) The family owned a building worth Rs. 2,00,000 at Palni, and 120 acres of nanja land worth about Rs. 1,000 per acre.
(2) It was engaged in the business of manufacturing Indian patent medicines from drugs and had been running a Siddha Vaidyasalai at Palni for a period of 30 years and had also branches in Colombo and Madras.
(3) Rajaratnam studied in the Indian School of Medicine for two years and thereafter set up his own practice as a doctor, having registered himself as a practitioner in 1940.
(4) He took over the management of the family Vaidyasalai at Palni.
(5) Rajaratnam was earning in addition Rs. 200 to Rs. 250 per month in his private practice.
(6) He had a status in life, being Municipal Councillor of Palni and sometimes its Vice Chairman, and was maintaining a fairly good standard of life and owned motor cars.
(7) He was aged 34 years at the time of his death and, therefore had a reasonably long span of life before him, if the accident had not taken place.
On the said findings, the High Court summarized the position thus: 941 age 34 carrying on business as a Doctor, with reasonable prospects of improving in his business.
He was living in comfort and by his early death plaintiff, , 2 to 7 have lost their prospects of education, position in society and even possible provision in their favour.
Under the circumstances, the award of Rs. 25,000 as damages must be accepted as quite reasonable.
" When the courts below have, on relevant material placed before them, ascertained the said amount as damages under the first head, we cannot in second appeal disturb the said finding except for compelling reasons.
Assuming that Rajaratnam had not died, he would have spent, having regard to his means and status in life, a minimum of Rs. 250 on respondents 2 to 7; and his income, as indicated by the evidence, would certainly be more than that amount.
The yearly expenditure he had to incur on the members of the family would have been about Rs. 3,000 and the sum of Rs. 25,200 would represent the said expenditure for just over 8 years.
In the circumstances, the balance of loss and gain to the dependents by, the death of Rajaratnam, in the sense stated by Lord Wright and Viscount Simon, could not be less than Rs. 25,200; indeed, having regard to the circumstances of the case, it is a moderate sum; it is rather a conservative estimate.
We, therefore, accept that figure as representing the damages for respondents 2 to 7 in respect of their claim under the head of pecuniary loss to them by the death of Rajaratnam.
The last, contention raises an interesting point.
Under section 2 of the Act the respondents 2 to 7 were awarded Rs. 5,000 as damages for loss of expectation of life.
It was contended that this amount should go in reduction of Rs. 25,200 awarded under section 1 of the Act on the ground that otherwise it would be duplication of damages in respect of the same wrong.
The second proviso to section 2 of the Act reads: "Provided that in any such action or suit, the executor, administrator or representative of the deceased may insert a claim for and recover any 942 pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum, when recovered, shall be deemed part of the assets of the estate of the deceased." While section 1 of the Act is in substance a reproduction of the English Fatal Accidents Acts, 9 & 10 Vict.
93, known as the Lord Campbell 's Acts, section 2 thereof corresponds to a provision enacted in England by the Law Reform (Miscellaneous Provision) Act, 1934.
The cause of action under section 1 and that under section 2 are different.
While under section 1 damages are recoverable for the benefit of the persons mentioned therein, under section 2 compensation goes to the benefit of the estate; whereas under section 1 damages are payable in respect of loss sustained by the persons mentioned therein, under section 2 damages can be claimed inter alia for loss of expectation of life.
Though in some cases parties that are entitled to compensation under both the sections may happen to be the same persons, they need not necessarily be so; persons entitled to benefit under section 1 may be different, from those claiming under section 2.
Prima facie as the two claims are to be based upon different causes of action, the claimants, whether the same or different, would be entitled to recover compensation separately under both the heads.
But a difficulty may arise where the party claiming compensation under both the heads is the same and the claims under both the heads synchronize in respect of a particular sub head or in respect of the entire head.
In that situation, the question is whether a party would be entitled to recover damages twice over in respect of the same wrong.
In England this question came under judicial scrutiny in Rose vs Ford (1).
There the question was whether and to what extent deductions would have to be made in giving compensation both under the English Fatal Accidents Acts and the Law Reform (Miscellaneous Provision) Act, 1934.
A young woman called Rose was killed in an accident.
Her father sued for damages under both the Acts.
It was contended that as he got damages for personal loss, he could not be (1) , 835.
943 awarded once again compensation for the loss of expectation of life.
Though in that case it was held that the father was entitled under both the Acts, Lord Atkin made the following observations, which are appropriate to the present case: "I should add that I see no difficulty as to the alleged duplication of damages under the Act of 1934 and the Fatal Accidents Acts.
If those who benefit under the last mentioned Acts also benefit under the will or intestacy of the deceased personally, the damages under those Acts will be affected.
If they do not, there seems no reason why an increase in the deceased 's estate in which they take no share should ,affect the measure of damages to which they are entitled under the Act.
" A similar question arose in Feay vs Barnwell There, Mrs. Feay was killed in an accident and her husband sued for damages under both the Acts.
It was held that, as the husband was the claimant under both the Acts, credit should be given in assessing the damages under the Fatal Accidents Acts, for what was given to him under the Law Reform Act, 1934.
So too, in Ellis vs Raine (2), where the parents of an infant, who had been negligently killed in an accident, claimed damages under both the Acts, Goddard, L. J., reaffirmed the view that where the parties who would benefit from the damages awarded under the Fatal Accidents Acts were the same as those who would benefit from the damages awarded under the Law Reform Act, the damages under the Fatal Accidents Acts must be reduced by the amount given as loss under the Law Reform Act.
Finally the same view has been reaffirmed and restated with clarity in Davis vs Powell Duffryn Associated Collieries Ltd. (3).
There Lord Macmillan described the nature of the two heads thus at p. 610: "The rights of action in the two cases are quite distinct and independent.
Under the Law Reform Act the right of action is for the benefit of the deceased 's estate; under the Fatal Accidents Acts (1) (2) (3) 944 the right of action is for the benefit of the deceased 's dependents.
But, inasmuch as the basis of both causes of action may be the same, namely, negligence of a third party which has caused the deceased 's death, it was natural to provide that the rights of action should be without prejudice the one to the other.
It is quite a different thing to read the provision as meaning that in assessing damages payable to dependents under the Fatal Accidents Acts no account is to be taken of any benefit which the dependents may indirectly obtain from an award under the Law Reform Act through participation in the deceased 's estate. . . it is appro priate that any benefit taken indirectly by a dependent by way of participation in an award under the Law Reform Act should be taken into account in estimating the damages awarded to that dependent under the Fatal Accidents Acts." Lord Wright addressed himself to the same question and answered it at p. 614 thus: "The injury suffered by the individual from the death cannot be computed without reference to the benefit also accruing from the death to the same individual from whatever source.
" The principle in its application to the Indian Act has been clearly and succinctly stated by a division bench of the Lahore High Court in Secretary of State vs Gokal Chand (1).
In that case, Sir Shadi Lal, C. J., observed at p. 453 thus: "The law contemplates two sorts of damages: the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by th e members of his family through his death.
The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caus ed to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate.
" An illustration may clarify the position.
X is the (1) Lahore 451. 945 income of the estate of the deceased, Y is the yearly expenditure incurred by him on his dependents (we will ignore the other expenditure incurred by him).
X Y, i.e., Z, is the amount he saves every year.
The capitalised value of the income spent on the dependents, subject to relevant deductions, is the pecuniary loss sustained by the members of his family through his death.
The capitalised value of his income, subject to relevant deductions, would be the loss caused to the estate by his death.
If the claimants under both the heads are the same, and if they get compen sation for the entire loss caused to the estate, they cannot claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive.
Conversely, if they got compensation under section 1, representing the amount that the deceased would have spent on them, if alive, to that extent there should be deduction in their claim under section 2 of the Act in respect of compensation for the loss caused to the estate.
To put it differently, if under section 1 they got capitalised value of Y, under section 2 they could get only the capitalised value of Z, for the capitalised value of Y+Z, i.e., X, would be the capitalised value of his entire income.
The law on this branch of the subject may be briefly stated thus: The rights of action under sections 1 and 2 of the Act are quite distinct and independent.
If a person taking benefit under both the sections is the same, he cannot be permitted to recover twice over for the same loss.
In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under section 1 of the Act, that portion shall be excluded in giving compensation under section 2 and vice versa.
In the instant case, under section 1 of the Act both the.
courts gave compensation to plaintiffs 2 to 7 in a sum of Rs. 25,200.
This sum was arrived at by taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for them.
119 946 Under section 2 both the courts awarded damages for the loss to the estate in a sum of Rs. 5,000.
That figure represents the damages for the mental agony, suffering and loss of expectation of life.
There was no duplication in awarding, damages under both the heads.
No material has been placed before us to enable us to take a different view in regard to the amount of compensation under section 2 of the Act.
The judgment of the High Court is correct and the appeal fails and is dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
A bus run by the appellant met with an accident as a result of which R died.
R 's dependents and heirs e.g. the father, widow and sons, brought a suit for compensation under section 1 of the , for loss of pecuniary benefit sustained by them personally and under section 2 thereof for the loss sustained by the estate on account of the death of R. The, High Court found that the bus was driven at an excessive speed and there was negligence on the part of the driver and that the appellants were liable for the same.
On the question of damages, it confirmed the amount of compensation of RS.
25,000 under section 1 of the Act for the loss of pecuniary advantage and of Rs. 6,000 under section 2 of the Act for loss of expectation of life.
The questions for consideration were (1) whether the accident was due 117 930 to any negligence on the part of the driver; (2) whether the courts below were right in awarding compensation under section 1 of the Act for pecuniary loss sustained by the widow and the sons of the deceased; and (3) whether the sum awarded as damages under section 2 of the Act for loss of expectation of life should go towards the reduction of the compensation awarded for pecuniary loss sustained under section 1 of the Act, as otherwise it would be duplication of damages in respect of the same wrong.
Held, that where on the basis of the evidence and on broad probabilities it is found that the speed at which the bus was driven was excessive having regard to the nature of the ground on which the accident happened, there is a presumption that the accident was caused by the negligence of the driver.
As the driver was acting in the course of his employment, the master would be liable for such accident, unless the presumption is rebutted by the master.
In the present case, on account of the negligence of the driver in the course of his employment the accident happened, and, therefore, the appellant was liable for the same.
Barkway vs South Wales Transport Co. Ltd., [1948] 2 All E.R. 460, Joel vs Morison, (1834) 6 Car.
& P. 501 and Storey vs Ashton, , applied.
That the actual extent of the pecuniary loss to the aggriev ed party may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture.
Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever sources come to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained.
Davies vs Powell Duffryn Associated Collieries Ltd., and Nance vs British Columbia Electric Railway Company Ltd., , followed.
Where the courts below have on relevant material placed before them ascertained the amount of damages under the head of pecuniary loss by the dependants of the deceased, such findings cannot be disturbed in second appeal except for compelling reason.
Held, further, that the rights of action under sections 1 and 2 of the are quite distinct and independent.
If a person taking benefit under both the sections was the same, he cannot be permitted to recover twice over for the same loss.
In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under section 1 of the Act, that portion shall be excluded in giving compensation under section 2 and vice versa.
931 in the instant case, under section 1 of the Act the sum of com pensation was arrived at by taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for his widow and sons.
Under section 2 the figure for damages awarded for the loss to the estate represents the damages for the mental agony, suffering and loss of expectation of life; thus there was no duplication in awarding damages under both the heads.
Rose vs Ford, , Feay vs Barnwell, , Ellis vs Raine, and Secretary of State V. Gokal Chand, Lah. 451, referred to.