B. Mehta, J.
1. Both the insurance companies of the two vehicles which were involved in this accident have filed appeals in these two matters; while the original claimants the widow and five minor children of the deceased have filed cross objections for getting their full claim of Rs. 29000/- by way of damages.
2. The accident took place on October 25, 1967, the New Year Day of Samvat 2022 at about 9-30 a. m. when the deceased compounder in the ocmpany of head compounder Devendar Chandrashankar, Ex. 92, was going to the bungalow of the Civil Surgeon, Junagadh, situated in Datar Manzil at some distance away from the Monranjan Guest House to offer his New Year greetings. The deceased at that time was walking on the footpath near the triangular children garden adjacent to the District Library near Kalwa chawk and was proceeding towards Manoranjan Guest House. The truck in question came over on the footpath from the opposite direction and collided against the Baniyan tree which got uprooted and one to its branches fell on the deceased as a result of which the deceased sustained fatal injuries on the heed and died on the spot. The truck had not stopped after colliding with the baniyan tree. It had gone over ahead on the footpath and collided with Pipal tree after which it came to a stand still. The trick was coming from the Sardar Chawk where there is a cross inter-junction of five roads which is at a 100 ft. distance after taking small turn. It was actually coming from the south to north from the Silkha side and going towards Kalwa Chawk. The tuck had to go on the foot-path to dash against Baniyan tree because it s brakes were ineffective and as the Fiat car in question had suddenly emerged from the opposite side going from Kalwa Chawak in the north towards south, after overtaking two carts in such at way that there was hardly any room left for the truck to pass on the road on that side. The road in question is 28 ft. wide road and no the two sides of the foot-path there are two gardens -- the western side of the foot-path abuts on the triangular children park while the eastern foot-path abuts on the garden. Both the drivers of these two vehicles in question were found negligent, and the award of compensation was arrived at the sum of Rs. 16,000/- by the Claims Tribunal on the footing that Rupees 2,000/- from the insurance monies and Rupees 1344/- by way of death cum retirement gratuity must be deducted. The truck in question was owned by opponents No. 1 who is was the propertied trading in the name of the Vishnu Transport Company shown as opponent No. 2 even though it was really a proprietary firm and only a firm name. Under the alleged hire purchase agreement, Ex. 100, dated June 11, 1965, opponent No. 1 and had given this truck under the leave and license arrangement to opponent No. 3 whose paid driver was opponent No. 4 Parbat Bhavan at the time of the accident. Opponent No. 5 is the insurance company with whom the trick was insured at the relevant time who issued certificate of insurance, Ex. 115 dated October 11, 1965. So far as the First car in question is concerned its original owner opponent Nos. 6 and 7 had sold the same on September 30, 1964, to opponent No.8 Dr. Vibhakar. The insurance of the truck was by opponent No. 1 the original owner even after the aforesaid hire-purchase agreement. Ex. 100. In view of the facts the Tribunal awarded this claim of damage only against opponent Nos. 3 and 4 the alleged hire and the driver of the truck and the insurer opponent No. 5 and also the Fiat owner Dr. Vibhakar, opponent No. 8, the driver opponent No. 9 and insurance company opponent No. 10 holding them jointly and severally liable for the amount of damage awarded. As regards opponent No. 1 the owner of the truck and firm opponent No. 2, in and opponent Nos. 6 and 7 who were the original owners of the Fiat, car, on a concession, they were held not liable and the application so far as those opponents were concerned was dismissed. Therefore, both the insurance companies have filed these two appeals and the claimants have filed their cross objections. As both the matters involve common question we are disposing them by this common order.
3. Five points were raised in these appeals:--
(1) As to the effect of the deletion of the driver opponent No. 4 Parbat Bhavan and because of the death of the other driver opponent No. 9 Devshi Thakarshi some time back as his heirs are not brought on record on the competence of these appeals and cross objections.
(2) Whether opponent No. 5 insurance company can be exonerated as its assurance opponent No. 1 and 2 were held no liable and there was no judgment against them and as to whether in any event in case of both the insurer they were not liable to indemnify as there was no vicarious liability of insured owner due to any agency being established.
(3) Whether this is a case of exclusive neglect of the truck driver or of contributory neglect.
(4) Whether the quantum of damages requires interference on the ground that it is too low and by excluding even collateral benefits and without taking into account the loss fro expectation of life.
(5) Whether power under O. 41, R. 33 should be invoked as to make the truck owner opponents 1 and 2 liable if the insurance, company opponent No. 5, succeeds in its plea raised in the first point.
4. It is true that the driver Parbat's name has been deleted in this appeal by the order, dated February 19, 1969 as he could not be found. Similarly, there is no dispute that only some time back the other driver Devshi Thakarshi, opponent No. 9 has expired and his heirs have not been brought on record. That is way this contention has been raised. As pointed out by Lord Denning M. R. in Egger v. Viscount Chelmsford, 91965) 1 QB 248 (264), in point of law, no tortfeasors could truly be described solely as joint tortgeasors. They were always several tortfeasors as well. In any joint tort, the party injured had his choice of whom to sue. He could sue all of them together or any one or more of them separately. This has been the law of the conturies. If several persons jointly committed a tort, the plaintiff had his election to sue all or any number of the parties; because a tort was in its nature the separate act of each individual. Therein lay the gist of the matter. Even a in joint tort, the tort was the separate act of each individual. Each was severally answerable for it; and, being severally answerable, each was severally entitled to his own defence. In K. S. Gandhi v. N. A. Gauzder, (1969) 1 SCC 358 at p. 363 = (AIR 1970 SC 1468) their Lordship approved this ratio of Lord Denning M.R. in Egger v. Viscount Chelms ford case, Following these principles their Lordships reversed the decision of Dhavan, j. who had held that the decision of against one was complete according and satisfaction and the cause of action against all the defendants being one and indivisible, the decree operated as a bar against further proceeding against the remaining joint wrongdoers. Their Lordship held that nothing shorts of satisfaction, or its equivalents, could make good a plea of former judgment in trespass , or operate as a bar in an action against another trespasser,. who was not a party to the first judgment. Therefore, even though against one tortfeasor compromise was arrived because he tenders an unconditional apology which was accepted by the plaintiff and there was a consent decree in terms of the compromise, the compromise amounted to a convenant not to sue and it was not a full satisfaction fro the alleged tort committed by the other defendants. This was a election on the part of the plaintiff to the pursuing of several remedies against the six defendants and unless they rendered full satisfaction the other joint tortfeasors could not escape their liability. Therefore, the cause of action being not joint but a distinct cause of action against each tortfeasor who was jointly and severally liable, this appeal would never become incompetent even if the other joint-feasors were not brought on the record. The decision in Sri Chand v. Jagdish Prasad, AIR 1966 SC 1427 would not be helpful . In this context at page 1431, their Lordship have merely held that the mere facts that the obligation arising under a convenant may been force severally against all the convenantor does not make the liability of each covenantor distinct. It is true that in enforcement of the claim of the decree holder the properties belonging to the sureties individually may be sold separately. But that is because the properties were separately owned and not because the liability arose under district transaction. That is why it was held that the fact that the surety bond was enforceable under Section 37 and 138 of the Contract Act against each surety severally and that it was open to the creditor to release one or more of the joint sureties did not alter the true character of the adjudication of the Court when proceedings were commenced to enforce the convenant of the Board against all sureties. That is why the ratio Rameshwar Prasad v. Shambehari, AIR 1963 SC 1901 was held applicable and the appeal was held to incompetent. The decision could not apply to a case like the present when the liability of each joint tortfeasors is a distinct liability and, therefore, until there is complete satisfaction received, there would be district, joint and several liability of each tortfeasors. Besides, this is a case where the ratio of Mahabir Prasad v. Jage Ram, AIR 1971 SC 742 would be applicable where their Lordship had distinguished the decision is Rameshwar Prasad case AIR 1963 SC 1901. Their Lordship pointed out that the plaintiff whose suit had been dismissed had filed an appeal and therefore one of them died and heirs were not brought on the record. In that case before their Lordship however there was na order against all the decree-holder but all decree holder had not appealed and only one of them had appealed and the other two were jointed as party respondents. Therefore, on the death of one of the parties the entire appeal did not become incompetent because of the specific provisions in Order 41, Rule 4 which is terms preserved this jurisdiction of the appellate Court in such cases. Therefore, the decision of the High Court that there would be two inconsistent decrees and that appeal ahd abated as a whole by becoming incompetent was reversed. In the present case both on the ground that such joint tort results in distinct liability of each tortfeasors and no the ground that this is an appeal by only the insurance companies which has to indemnify the insured or the concerned driver the tortfeasor the provisions of Order 41, Rules 4 would surely apply. Therefore, both the appeal were not incompetent even though the second driver was dead and his legal heirs and representatives were not brought on the record. So long as the appeal is competent, cross objections must also survive with the only effect that so far as the quantum of liability of those drivers is concerned, it may not be increased. The extent of the liability of the insurance company has to be measured by this statutory indemnity clause in Section 95(5) irrespective of the fact as to what are their rights inter se under the contract of policy. Therefore, the first contention must obviously fail.
5. As regards the second question Mr. Oza has vehemently argued in his appeal that the assured owner-opponent No. 1, who traded in the proprietary name of opponent No. 2 having been exonerated in the absence of judgment against the assured there could not be liability of the insurance company-opponent No. 5. Mr. Oza in this connection ignores the special provisions of our Act and the while contention is based on the general principles of issuance law or the law of contract. The legislature was awards of these two used difficulties which aforse under the general law because of the need insurable interest and because of the absence of many name in the policy other than that of the assured. That is why nobody who was not a party to the contract can bring an action on the contract and the person who had no interest in the subject-matter of an insurance could not claim a benefit of that insurance. To get over this difficulty when the provisions of composure insurance were introduced, the two non-obstinate clause were provided in Section 95 (5) and 96 (1). Under Section 95 (5), notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons. Similarly, in Section 96 it is provided that there shall be duty of the insurer to satisfy the judgment against person insured in respect of third party risk, notwithstanding that the insurer may by-law entitled to avoid or cancel the policy. Godard J. (as he then was) has already interpreted the effect of such non obstinate clause in Section 36(4) of the Road Traffic Act, 1930, which had given this statuary indemnity in addition to the duty of the insurer to satisfy the judgment against Section 10 (2) of the 1934 Road Traffic Act. Lord Goddard had pointed out that a so far as the general law of insurance was concerned, when the vehicle was sold and the assured cased to have interest in the subject-matter of insurance, even the driver's extension clause would fall with the rest of the policy, as the policy could be avoided on the count. He, however, held in both the case that the position would be different under the position would be astute by a reason of the non-obstinate clause in Section 36 (4) which altered the law by conferring right of action free from difficulties caused by the Life Insurance Act as to insurable interest and as to the absence of any name in the policy other than that the assured, fro the insurers were to indemnify by giving converge not only no the assured but the class of person specified in the policy. Such extension clause was common and universal and, therefore, Parliament had given statutory effect to this undertaking of the insurer, because the Act was amid at the protection of the public by providing that there should be insurance coverage behind every driver of the car. Therefore, whether the driver was driving the vehicle with the assured's permission or under his order, the statutory indemnity was by reason of this special provision in the Act one analogous to Section 95 (5), available for seeking indemnity from the insurance company. Our law has also specifically altered the general law because even right to the avoid policy on this ground which the insurer has does not come in the way of the duty of the insurer of satisfy the judgment against in the persons insured in repeat of the third party risk under Section (1). That is why in New Asiatic Insurance Co. v. Pessumal, AIR 1964 SC 1736, even though the assured was on Asnani and under the driver's extension clause in para 3 permitted driver Pessumal had been driving at the time of the accident, their Lordships held that the company had insured Pessumal as well in view of Section 2 (3) of the policy and, therefore, it came within the terms "insured" under Section 96 of the Act. Their Lordships had taken this view even where there was restrictive condition under para 3 of the policy which could be effective as between the insured and the company, but it would have to be ignored when considering statuary liability of the company to the third party. The company having under taken the liability to third party incurred by the persons specified in the policy, the third party's right to recover any amount under or by virtue of the provision so the Act was not affect even to by the restrictive condition of the policy. Once the company issued certificate giving in rise to the wider liability, it would have to indemnify the person specified in the policy. That is why even the avoidance clause provided that nothing gin the policy or endorsement would affect right of the person to be indemnified by the policy or endorsement would after right of the person to be indemnified by the policy or any other provision to recover amount under to or by virtue of the provisions of the Act . therefore, it is settled legal position that even if the insure may be entitled to avoid or cancel the policy, the instruct company must fulfill its duty of statutory indemnity under Section 95 (5) by indemnifying the concerned driver soloing as he was permitted to driver the vehicle in question by the assured who was, therefore, covered by the policy. The insurance policy is no one the record in the certificate, Ex. 115 make it in teem sclera that any person is permitted to diver provided the person drive hold license to drive the motor vehicle and is not disqualified for holding or boating a license. The only limited as to use was that it must be used a as hired lorry as per public carrier permit, and to the third party risk was as per the Act. Therefore, merely because at common law the original assured was not held to be vicariously liable the insurance company does not escape this statutory liability so long as the driver was the insured specified in the policy purported to cover such third party risk.
6. Mr. Oza, however vehemently argued that Ex. 100 amounted to a sale and, therefore the said purchaser was driving at the time in his own right as the owner and no permission can be implied. This contention is against the plain terms of the agreement, Ex. 100. The agreement provides that the truck was agreed to be sold for Rupees 10251/- of which Rs. 3000/- were paid and the balance had remained unpaid. It is only when the balance was paid that the truck was to be sold to the concerned purchaser. It was in terms agreed that the registration in the R. T. O. in the name of the original owner was to continue and it was only when the full price was paid that the registration was to be transferred. Clause 3 provided that till the price was paid the ownership an possession of the owner of this vehicle would continue. clause 4 provides that even though physical possession of the vehicle was give, legal possession would continue with the owner and the use of the vehicle by the intending purchaser was to be by permission as a licensee. A consideration of Rs. 1000/- for the use was provisions every month. If on that basis the amount of Rs. 7251/- was pad in regular instalments as provided therein, the vehicle was to be sold, otherwise, in case for default the amount paid was to be treated as one for use of the vehicle and the intending purchaser was not entitled to have a refused thereof. The owner would have the right to take back possession at any time in case of such default. Clause 7 also provided that until the name was transferred by registration there would be on right created in the intending purchaser and he would have no power to dispose of the transfer this vehicle. Therefore, the agreement in is terms an agreement of leave an licence and there was no sale. The property never passed under this agreements and that is why till the full amount was paid, ownership was never to be transferred and the intended purchaser had no interest in the vehicle expect to use to as a mere license on permission of the owner. That is why right to take back possession was unconditionally provided with a corresponding right to treat even the amounts paid as paid by way of use of the vehicle if the purchaser made default in paying instalments. Therefore, on such an agreement as Ex. 100 Mr. Oza can hardly raise any plea of sale and, therefore, it is hardly necessary for us to consider the wider question whether no permission can be implied after the sale or whether the insurance policy was avoided on that court. In the present case, the entire user was in terms a permissive user under the same registration and even the new insurance policy was taken by the original owner after the agreement, EX. 100. The driver in in question was only a paid employee to this licence who would not be deemed to contravene Section 94. The driver was a licensed driver and, therefore, this being a case of permissible user by the original owner the statuary indemnity clause in Section 95 (5) even in respect of such a person was clearly applicable. Therefore, even if it is the driver who was liable to pay damages to the third party the insurance company would surely be liable to pay the amount to third party by reason of the statuary as liability as if the driver himself was the insured and it was the insured within the meaning of Section 96, subject to the statutory limits of Rs. 20,000/-
7. As the insurance company opponent No. 5 is held statutorily liable under Section 95 (5) to indemnify full third party risk so far as the third party is concerned by paying the amount purposed to be covered in respect of this permitted driver, it would not be necessary to go into the wider question raised by Mr. Nanavati. On the facts of the case, there was a wrong concernsion made so far as there assured was concerned and, therefore, the power under Order 41, Rules 33 could be exercised for doing complete justice. That is why point No. 5, even though it is substantial ground, if Mr. Oza has succeeded on the first question would not arise for our consideration in this appeal and we would not be required to consider whether the alleged hirer who was only a licensee working under same registration, permit, the certification of fitness and the insurance policy was, therefore, for all intents and purposes driving the vehicle in question of and no behalf of the opponents No. 1 the owner had such actual interest in the consideration amount in the use of the this vehicle even at the time of the accident by reason of a hirer amount fixed for this vehicle which was only to be used as a hired lorry would constitute him an as agent so as to result in the vicarious liability of this owner.
8. Coming to the Fiat car, Mr. Chhaya has vehemently argued the same question on the ground that the driver opponent No. 9 was the servant of the father and not of Dr. Vibhakar who was the owner of the Fiat car. Here also no insurance policy is no the record, not even the certificate of insurance and do no plea has been raised that there was no such extension clause. For the driver the insurance company could escape liability by raising proper defiance in that connection. The owner opponent No. 8 has left the car for the family use and actually the entire family was taken in this motor at the time of the accident. This was not a mere bailment of the car with the father. But the father was expressly permitted to use the car of the family in which use the son was surely interested. If the son was present, he himself would have taken the family to the temple on the New Year Day. Therefore, on the ground of permitted driving itself the insurance company would by-law eligible as in the other case.
9. Besides, in the present case, even at common law, the vicarious liability of the owner of the vehicle would be clearly attracted. In Sitaram v. Santnuprasad, AIR 1966 SC 1697, their Lordships have sleeted the law in this connection by pointing out that a master is vicariously liable for the acts of the servant acting in the course of him employment. For the master's liability to arise, the act must be a wrongful act authorised mode by the master or a wrongful and unauthorised mode of doing some act authorised by the master. The driver of a car taking the car on master's business makes him vicariously liable if he commits an accident. Their Lordship pointed out that it is equally well settled that if the servant at the time of the , accident, is not acting with-in the course of his employment but is doing something for himself, the master is not liable. Their Lordship then pointed out that the Court had in such cases laws drawn a presumption that a vehicle is driven on the master's business and by his authorised agent or servant so that this vicarious liability on social justice principles could always be invoked unless the presumption was rebutted. In the case before their Lordship the majority view was that the presumption was rebutted. Even looking at the matter by giving wider interpretation to the terms "scope of employment" and "scope of agency" their Lordship did not approve the tension of this principle where the act of the servant or avent was merely forth master's benefit, for the act must be done only in the course of employment or in the scope of agent's authority. At page 1706 their Lordship pointed out from the English decision that the mere fact of consent by owner to the use of as chatter was not proof of agency, but the purpose for which this car was being taken down the road on the morning of the accident must be either that is should be used by the owner or at least for the joint purposes. Their Lordships also pointed out at page 1706 Lord Denning M. R.'s observation is Ormord v. Crosville Motor Service Ltd., (1953) 2 All ER 753. The learned Judge has held that the doctrine of vicarious liability was extended if the driver was driving with the owner's consent on the owner's business of for the owner's purposes. The law put as especial responsibility on the owner of a vehicle who allows it is go on the road in charge of someone else. No matter whether it was his servant, his friend or anyone else. If it was being used wholly or party on the owner's purpose the owner was liable for any negligence on the part of the driver. The owner only escaped liability when he lent it or hired it to a third person to be sued for purpose in which the owner had no interest or concern. applying these testes their Lordship held that where the owner had handed over the vehicle to the second defendants to ply it on hire as a taxi and the third defendants was driving the taxi, collected fare and made expenses and handed over the balance with account to the owner, without doing it free, the second defendants was either a servant or an agent, and as he was paid Rupees 90/- per month he was mere a servant. As however, no the occasion in question this vehicle was not driven on the owner's business but on the business of the third defendants who as only an unlicensed clearer or at the most of the third and second defendants together, this act of the driving was not within the scope of any extension of the doctrine of scope of employment of agency. Therefore, the acts of the second an third defendants viewed sparately or collectively did not make to the owner vicariously liable, especially as there was no evidence even to support any plea of any implied authority. Lord Denning in the subsequent case in Lauchburry v. Morgans, (1971) 1 All ER 642 explains this doctrine of vicarious liability which was evolved by law for social justice reasons. The Tribunal had of course to give reasons which commended themselves to the public at large. The law had been development to implement the policy underlying vicarious liability, and motor vehicles were the prim a facie example. Act motor vehicle is powerful engine of death and destruction. It was capable of doing much damage to person and to property unless it was driven to with the due care and attention. The Parliament and Judge have done their best to see that the suffers of damages are compensated for the loss. The doctrine of vicarious liability was extended by the Judge by creating the aforesaid presumption that the vehicle was driven on the master's business and by his agent or servant, unless the presumption was rebutted. The Parliament intervened by statutary third party risk provision. The common law put on vicarious liability as there was special who responsibility of the owner of the vehicle who allowed it to go on road in charge of someone else. If it was being used wholly or party on the business of the owner, the owner was liable of any negligence on the part of the driver. While considering the course of employment of the servant and the scope of agency of the agent in the contest of the delegation of this task of duty driving both the scope of employment and the terms 'agent' are widely construed so that the vicarious liability is fastened when ever it is just to do so. Lord Denning in that case applied that doctrine to a family car considering the driving by any member of family as an agent of the owner of the family car. Further developing this concept Evleigh J. in Nottingham v. Aldridge, (1971) 2 All ER 751, pointed out that even in Hewitt v. Bonvin, 1961 (2) All ER 790. strongly relied on by Mr Chhaya, Du Parcq L. J. had also stated that the driver of the car may not be the owner's servant and the owner will be nevertheless liable for his negligent drifting if it be proved that at the material time he had authority, express or implied, to driver on the owner's or implied, to driver on the owner's behalf. Such liability depends not on ownership, but on the delegation of task or duty. Even Pearson, L. J., Index Note Norton v. Canadian Pacific Steamship, (1961) 2 all ER 785-789, 790 had stated that the reasoning in Omrod's case by Lord Denning proceeded on the principle that the owner of a car when he takes or sends it on a journey for his own purposes, owes a duty of care to other road users, and if any of them suffers damage from negligent driving of the car, whether by the owner himself or by an agent to whom he has delegated the driving, the owner is liable. Therefore, even though it is well settled that merely from the ownership of the car and permitted driving at common law vicarious liability may not follow as in the case of statutory liability under the compulsory third part risk provision, where there is driver's extension clause, the fact of ownership is still material in deciding whether or not there was a task or duty to be delegated. In this context the fact that chattle in question was the motor vehicle which is governed by the Motor Vehicles regulations would also be a material fact. The learned Judge thereafter pointed out that there is a settled distinction between the agent and an independent contractor in whose case the employer would not be vicariously liable. the aforesaid presumption had been created by the Judges as explained by our Supreme Court that the vehicle was driven on the master's business and by his authorised agent or servant, and in order to see whether the presumption is rebutted all the facts must be kept in mind as to the ownership of the vehicle, the consent given for driving, the nature of this motor in the light of driving regulations and whether the driver was driving independently or for and on behalf of the principal. The term 'agent' as explained by Lord Denning in Launchburry v. Morgans was not to be narrowly interpreted as in the case of law of contracts or in the case of a commercial transaction. an agent, as distinguished from a servant as explained by Eveleigh J. at page 759, should be such an agent who can be said to authorise tortious act by reason of the delegation of the driving task by the concerned owner, at the time of the relevant accident. At page 760 the learned Judge evolved the test of "genuine representative capacity" which is generally accepted for invoking vicarious liability agent on the ground that the act is done "for and on behalf of" the principal, although it is not the same thing that it is for the principal's benefit or at his request. That is why the learned Judge pointed out that the ownership and the nature of the chattle may be, and most often are, powerful factors in determining representative capacity, as also will be the risk inherent in the operation, for they help to show the extent of the defendant's involvement in the operation of this motor vehicle. On the facts of that case the learned Judge came to the conclusion that there was no such involvement in the use of the motor vehicle as it can be said to have been driven for and on behalf of the true owner. It was only on the alternative ground of the comprehensive third party risk policy with the extension clause that the liability was upheld.
10. Applying these tests it is obvious that when the owner did not make a mere bailment of the car to the father but there was an entrustment the car along with ignition key for being used for the purpose of the family, and when the family was taking the car fro going to the temple, it was obviously driven at the time "for and on behalf" of the son. It is hardly material that the son at that time may be at Limbdi Hospital, because his physical presence is hardly necessary. What is material is the fact that what the son himself could have done by taking the family for the temple visit on the New Year Day was being done by this driver, opponent No.9, who was acting as the servant of the father. Therefore, the father in the case of such a family car was obviously agent of the son and the car on the actual occasion was being used for a family purpose in which the son was obviously interested. In fact, even the use cannot be said to be a totally independent use but only for and on behalf of the son because the very act of driving the family for family purposes had been specifically authorised by the son by giving this car to the father, and therefore, the insurance company of the Fiat car could not, in any event, escape liability both at the common law and also under the act.
11. Turning to the third ground, it must be kept in mind that it is a settled legal position as pointed out in Broome v. Cassel & Co. Ltd., (1971) 2 all ER 187 at p. 200 by Lord Denning that as against joint torfeasors damages must be assessed for one single sum of damages against all defendants, even through one defendant may be more guilty than the other and they are to be made jointly and severally liable only for one single sum, which degree may be reduced in case there is some contribution of negligence by the plaintiff himself. In the present case, there is no question of contributory neglect of the deceased and the question arises in the context of the negligence of the drivers of these two respective vehicles. Therefore, at the outset we must make it clear that the decree so far as the third party is concerned must be of one joint sum of damages for which each of these joint liable. Mr. Chhaya, however, vehemently argued that the case is one of the exclusive negligence of the truck driver as whatever negligence was of the fiat car driver had become inoperative. Looking to the degree of fault, there must be apportionment of the damages so far as these two vehicles were concerned. The doctrine of 'last opportunity" which is invoked by Mr. Chhaya was evolved by the Judges to modify rigour of the original common law principle that where the plaintiff was guilty of contributory neglect, he would not be entitled to any damages, because either he got all or nothing, but no protanto. In the case in British Columbia electric Rly. Co. Ltd., v. Loach, (1916) 1 AC 719, only to do justice the Privy council had to fall back on this doctrine. the cart with the horses and men was in that case driven at the open level crossing without keeping any look out for the approaching electric car. Still it was found that as the driver of the electric car had seen this cart and the horses with the driver from a distance of 400 ft. if the brake of the car was in order and was not defective and inefficient, the car could have stopped even at 300 ft. distance. That is why, whatever negligence was of the cart driver was inoperative negligence, as no accident could have occurred without effective negligence of the electric car driver. The negligence of this electric car driver alone was the operative cause or the proximate cause. The doctrine was, therefore, useful in those days when the common law was not evolved on the lines of admiralty law that where there is contributory negligence of the plaintiff, there would be only a reduction in the amount of damages and it would affect his claim pro tanto. Besides, the principle can only be duly applied in such cases as in Loach's case or in the well-known Davies v. Mann, (1842) 10 M & W 546 where there was a static donkey owner situation, because a line can be clearly drawn so that it can be said that the negligence of one became, inoperative and was not contributory negligence at the time of the accident or collision. This principle could hardly be helpful where no line can be drawn in the context of fast moving vehicles where it is only a question of split second. The House of Lords in Admiralty Commissioners v. S.S. Voluute, 1922 (1) AC p.136, in those classic propositions of Viscount Birkenhead L.C. brought out this distinction and while considering the rule of 'last opportunity' emphasised this aspect even in Swadling v. cooper, 1931 AC 1 (10), where it was pointed out that where there was a substantial interval of time a the rule in Davies case would be applicable but it could not apply to other cases in which negligence of the parties is contemporaneous or so nearly contemporaneous as to make it impossible to say that either could have avoided the consequences of the other's negligence, and in which, both have contributed to the accident. That principle could not apply especially where the moment of impact was not more than a second, after both the drivers had become aware of their respective positions. The crucial question was as to whose negligence it was that substantially caused the injury. That is why in the last decision in this trio, in Boy Andrew (Owners) v. St. Rognvald (Owners), 1948 AC 140, Viscount Simon at p. 149 pointed out that the suggested test of "last opportunity" was inaptly phrased and likely in some cases to lead to error and in truth there was no such rule that when both the parties are careless, the party which has the last opportunity of avoiding the results of the other's carelessness was alone liable. The question as in all questions of liability for a tortious act, is not who had the last opportunity of avoiding the mischief, but whose act caused the wrong. That is why, it was pointed out by Viscount Simon that where a clear line could be drawn as in Davies case, negligence of the donkey owner could be said to be a fault not contributing to the collision. It was merely a cause a sine qua non. Lord Porter at page 155 after following Viscount Birkenhead's approach in Volute case pointed out that where no clear line can be drawn and both the acts come so close together as to form one transaction so that no line can be drawn between the operation of one act of negligence and the other, the aforesaid rule of causation could not be applied and both the defendants who had contributed to the full by the act of negligence would be liable to the extent of their fault. That is why Denning L.J. in Davies v. Swan Motor Co. (Swan sea) Ltd., (1949) 2 KB 291 at p. 321 in terms observed that as a doctorine of last opportunity was dead long before the Law reform Act, even though after the Law Reform (Contributory Negligence) Act, 1945, it remained in use by some as a practical test. It was not a principle of law but only the test of facusation. It was a fallacious test. After the decision in The Volute (1922) AC 129 and Swadling v. Cooper, 1931 AC 1, the doctrine fell into disrepute and was superseded by the simple test. What was the cause, or what were the causes of the damage? Therefore even where the plaintiff contributed some negligence under the developed common law he recovered reduced damages even though he had last opportunity of avoiding damages. The learned Judge also pointed out at page 323 that there was a fallacy in this doctrine because as a proposition of law it could never be supported by saying that negligence which created a dangerous obstruction ceased as soon as the driver of the oncoming vehicle saw it. That view could not be accepted because the plaintiff's negligence in leaving the obstruction was a continuous negligence, which continued after the on coming driver saw it. The learned Judge pointed out that another test of contributory negligence of legal duty is as fallcious as that test of last opportunity, because the real question is not whether the plaintiff was neglecting some legal duty but whether he was acting as a reasonable man and with reasonable care. Speaking, therefore, generally, the learned Judge observed at page 326, that the crucial question in road accident cases are: (1) What faults were there which caused the damage? (2) What are the proportions in which the damages should be apportioned having regard to the respective responsibilities of those in fault? That is why in a collision between two vehicle drivers the omnibus driver because he attempted to overtake in a narrow lane on a bend, without warning and before receiving a signal; the dust lorry driver because he turned suddenly across the road without making proper use of his mirror and without giving sufficient warning of his intention to do so, both were held liable. The plaintiff had also contributed, and the damage was held to be caused by the faults of all the three. The learned Judge also reduced the plaintiff's quantum by 1/5th and apportioned damages between the taxi-cab and the lorry driver in proportion of 2:1, In the Jamnagar Motor Transport Union v. Representatives of Thakar Gokal, c. act no.551 ofd 1963 decided on 14.1.1966, (Guj) where it was found that both the buses were trying to pass each other at a point where the road was admittedly narrow at a speed at which the drivers we unable to keep full control of the vehicle, the only reasonable conclusion which could be arrived at one the evidence was that the drivers of both the buses were negligent, in the absence of any proper appearing and scanty material in that connection. It was also found that there was no contributory negligence of the plaintiff, because of his hand protruding from the window of the bus. In those circumstances, the drivers of both the business having been equally responsible for the accident, the owners were jointly and severally held equally liable to pay damages to the dependents of the deceased. Mr. Chhaya had vehemently relied upon our decision in F.A. No.643 of 1967 decided on September 8, 1971, where my learned brother speaking of us had held that that was the case of collision between the motor-cycle and a S.T. bus where a line could be drawn. It is true that both the vehicles were on a cross-road and both the drivers had been able to see the vehicles coming on the cross road. As pointee out by the Privy Council in Toranto Rly. Co. v. King, 1908 AC 260 at p. 269, the traffic in the strees would be impossible if the drivers of each vehicle did not proceed more or less upon the assumption that the drivers of each vehicle did not proceed more or less upon the assumption that the drivers of all the other vehicles would do what it was their duty to do, namely, observe the rules regulating the traffic of the streets. Their Lordships made distinction between crossing in front of an approaching train and crossing in front of a tramcar bround to ber driven under regulations at such places as the junction of two roads. In London Passenger transport Board v. Upson (1949) 1 All ER 60, Lord Du Parcq at page 72 pointed out that if the possibility of the danger emerging is reasonably apparent then to take no precaution is negligence, but if the possibility of danger emerging is only a mere possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man then there is no negligence in not having taken extraordinary precautions. The principle applies to all cases of negligence which consists of omission to take the due care of the safety of others. In that context, the learned Lord also observed that a prudent man would guard against the possible negligence of others when experience shows such negligence to be common. The driver is never entitled to assume that people will not do what this experience and common sense teach him that they are in fact likely to do. That is why when the position of the two vehicles was considered in our cyclist was entitled to assume, even after he had seen the bus which was driven under traffic regulations and which was bound to give priority to this motor cyclist, that the other driver would not act so rashly and foolishly. It is not that it cross junctions everybody should stop. Therefore, if the motor cycle had entered the cross junction and even thereafter the S.T. bus was driven negligently into the cross road so as to knock-down the motor cyclist, without swerving the vehicle on the other side or applying his break, which he could have done if he had kept proper look out and had observed regulations on the road, the sole reason of collision was the bus driver's neglect. That is why it was held in that decision that a line could be drawn because of the peculiar facts of that case, even when it was the case of two fast moving vehicles, as the motor cyclist's negligence, if any, was almost inoperative and not in any sense contributory.
12. Therefore, the real question which arises is as to whether this is a case of inoperative negligence or both acts of negligence simultaneously operate at the same time so as to form one transaction and which are so mixed up as cannot be separated in order to find out the sole fault in question. The facts ultimately establish that the deceased was killed by the fall of the branch of the baniyan tree on the footpath when the truck driver dashed at great speed against the tree. The driver's own explanation is that when he a saw the Fiat car suddenly emerging in front of him almost leaving no space for him, he had to go on the foot-path, especially as his brakes had failed. He had deliberately dashed again the Baniyan tree because that was the only way he could avoid the collision with the Fiat car, where there were so many passengers carried, and he could stop his vehicle in the absence of brake only by dashing against this tree. Ultimately, the truck did not stop at the baniyan tree but at the Pipal tree ahead. therefore, his negligence is undisputed. He was coming after taking the curve from the Sardar Chawk at about 100 ft. distance which was a crossing of if roads. If he had observed relevant road regulations he was bound to slow down. On his own case it is obvious that because he was gong at such uncontrollable speed and as he had no effective brake he had collied with this baniyan tree which had caused this accident. As far as Mr. Chhaya is concerned, the Fiat car driver had overtaken both the carts by coming extremely on the other side leaving almost no space for the truck. If the Fiat car driver was going slow as contended by Mr. Chhaya and had observed rules of the road, he should not have tried to overtake the carts without keeping a proper look out of the oncoming traffic, a proper look out of the oncoming traffic. His negligence is, therefore, clear. The collision marks even on the fiat car speak for themselves and both the vehicles were separate only at a distance of 5 ft. Therefore, the Fiat car had not stopped itself. It is impossible to believe the theory of dragging. The fact remains that even though the Fiat car driver saw the truck even from a fairly good distance, he still tried to overtake the cart. He, therefore, created obstruction by suddenly emerging on the other side of the road in front of the truck leaving almost no space for the truck. His negligence could never be said to have ceased when his obstruction continued on this road and had compelled this truck driver to take the truck on the foot-path. The truck had almost to be taken on the footpath and still the Fiat car had come so close that there was only 5 ft. distance at the end. The driver of the fiat car could not rely on the defective brake of the truck because the obstruction which he had created by suddenly overtaking the two carts by blocking the passage of the truck amounted to continuing neglect and the truck driver was left with no alternative , except by accelerating his vehicle and going on the footpath to dash against the tree. The whole thing must have happened almost in a split of second and in such fact moving vehicles, this can hardly be said to be a case where any line can be drawn. If fact, the negligence of the truck driver was contributory and the negligence of the Fiat diver had also not become inoperative at the time as contended by Mr. Chhaya. Therefore, the entire decree fro damages must be for one amount for which both the tortfeasors will be liable in respect of two vehicles and they must be held to be jointly and severally liable, because both were equally liable and there could be no apportionment in such a case.
13. Coming now to the question of damages, we have already settled the question as to what is collateral benefit in First Appeals Nos. 159-160 of 1968 decided on 3.11.1971. We have pointed out the legal position as enunciated in the latest decision by the House of Lords in Parry v. Cleaver, (1969) 1 all ER 555, where it was accepted as a settled principle of common law, which was followed not only in England but in all other common law jurisdictions after Bradburn's case, 1874-80 all are reprint 195, that insurance policy amounts were collateral benefits which the deceased had bought with his own money. it was benefit derived by way of prudent savings effected for his own benefit under act contract by the injured [arty whose benefit could never go to the trotfeasor. It is only to act like which can be deducted from the like and, therefore, intrinsic nature of the payment must be considered before any such deductions can be made. That is why any pension amount or retirement-cum-gratuity benefit which had the insurance element could never he deducted. It was only that pension which was earned after the contributions had ceased that it assumed the character of wages and which alone could be deducted, when computing the economic loss of future earning or loss of wages. Therefore, in view of that settled legal position, the learned Tribunal was obviously wrong in excluding the amount of Rs.2000/- of insurance money and of Rs.1344/- the amount of death-cum-retirement gratuity which were of the same character as insurance. These collateral benefits could not be deducted from the compensation amount. Even on the aspect of acceleration of interest when we are now following after our decision in Hirji v. Basiranbibi, (1971) 12 Guj LR 783 the usual simpler Davies method of capitalising annual basic dependency figure at 12 to 15 years purchase factor, the deduction would be so small that it could well be squared up against the prospects of increasing income and the other spare time earning of this compounder. He had wife and five children. The deceased was, therefore, a healthy bread-winner of the family where this normal principle would clearly apply. The deceased was in the scale of Rs.91-3-130 EB-4-170 and was getting a D.A. of Rs.30/- and had the benefit of free quarters. His pay at the time of the accident was Rs.142 including D.A. Even though he would have retired at the age of 58, such an experienced compounder in the Government hospital in these days could hardly afford luxury of an idle retirement. He was bound to work for his useful expected period of useful life. The deceased was a healthy man and therefore he would have the same amount which he would have earned at the time of retirement till his expected useful life period. Therefore, for such a man in his forties the outer limit of 15 as years purchase factor would be an appropriate factor in this individual case for capitalising the annual basic dependency figure. In arriving at the basic dependency figure we can surely take the mean of his grade which including D.A. would be between, Rs.140 to 200, Therefore the amount would be Rs.175/-. Even if the benefit of free quarters is evaluated at the low figure of Rs.25/- per month, the total earning would be at least Rs.200/- per month which does not take into account future benefits in the Government service where such compounder would have all chances of future promotion. Looking to the needs of the family if Rs.50/- are taken as being spent by the compounder on himself, the basic dependency figure may be assessed at Rs.150/-. Applying 15 years purchase factor, to this basic dependency figure at Rs.150/- per month, the amount of damages would come to Rs.27,000/-. If we add our usual standard or conventional figure of Rs.3000/- for loss of expetence of life as per our earlier decisions, the total amount of damages in this case would come to Rs.30,000/-. The claimants having confined their claim only to Rs.29,000/- the whole claim should have been awarded. Therefore, the cross objections must be allowed. It is also settled principle that the damages should carry interest at 6% at least from the date of the application till realisation as that is the power of the court to award interest pendente lite under the code. Therefore, the cross objections must be allowed by decreeing the entire claim of Rs.29,000/- with 6% interest from the date of the application till realisation with full costs in both the forums.
14. Mr Oza and Mr. Chhaya, however, vehemently argued that the driver who was the tortfeasor being not on the record in both the cases, cross objections could not be allowed. As far as Mr. Chhaya is concerned, his insurance company, opp. No.10, could hardly raise any such pleas where the assured opponent No.8 Dr. Vibhakar is held vicariously liable for entrusting his car to his father whose driver was responsible vicarious liability is clearly established or the assured himself and, therefore, both opponent No.8 and the insurer, opponent No.10, would be liable. This being the Fiat car there is no limited liability even under the statute and, therefore, so far as opponents Nos.8 and 10 are concerned, even if the driver opponent No.9 is not on the record being dead, they could not escape their joint and several liability so far as the dependents of the victim are concerned. Coming to the case if Mr. oza, it is true that the original owner opponent No.1 has been exonerated by the Tribunal. Without going into the question of vicarious liability, the Act liability attaches even in this case in view of the driver's extension clause as the company is an insurer in this connection, Therefore, even under the Act the statutory liability to the tune of the ceiling limit of Rs.20,000/- can be fastened on the insurance company as we have already held that the statutory indemnity can be claimed even by the third party in this proceeding after giving opportunity to the insurer to establish statutory defence for escaping liability. The liability of the insurance company, opponent No.5, represented by Mr. Oza, could therefore surely be fixed at Rs.20,000/- by allowing cross objections to that extent, even in absence of the driver. It is for this reason that Mr. Nanavati has now not asked us to invoke our power under Order 41, rule 33 by going into the question of vicarious liability of the original owner, opponent No.1, because for all intents and purposes driving by this licensee under the same documents was "for and on behalf" of the true owner, and the true owner had interest in every trip as he charged consideration for his use of the truck as stipulated in the agreement, Ex.100 and the vehicle was all along used as a hired lorry even after Ex.100. Therefore, it is not necessary for us to invoke power under Order 41, rule 33 by holding liable opponent No.1 the original owner of the truck, for so far as opponent No.5 insurer company is concerned, its liability can be decreed to Rs. 20,000/- so far as these damages are concerned. Supreme Court far as the two drivers are concerned as they are not on the record in this appeal, we would not vary the decree against these defendants. It must be realised that in such torts liability of each tortfeasor is joint, several and distinct as pointed out by their Lordships, where even though there was a compromise in respect of one tortfeasor by accepting his apology, until full accord and satisfaction was obtained, the decree could be passed against every tortfeasor. It is therefore obvious that though the drivers are not on the record, these cross-objections can be allowed. That is why we are not invoking our power under Order 41, rule 33 which could surely have been done in this case.
15. In the result both the appeals of the insurance company must fail and they are dismissed with costs. The Insurance company shall pay in each case costs only to claimants. As far as claimants' cross objections are concerned, we modify the award of the Tribunal by substituting the amount of Rs.29,000/- instead of Rs.16,000/- and that amount is decreed jointly and severally against opponent No.8 the Fiat car owner, his insurer, opponent No.10, and also against opponent No.5 the insurere of the truck in question, with the only proviso that the liability of the truck insurer opponent No.5 shall be limited only to the extent of Rs.20,000/-. all the tortfeasors shall be jointly and severally liable for the aforesaid amounts and as between them they are held to be equally liable so far as these two vehicles are concerned. The aforesaid amount awarded shall carry interest at 6% from the date of the application till the date of realisation and full costs shall be paid in both the forums by the aforesaid opponents.
16. Appeal dismissed.
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