Rafia Sultan and Others vs Oil and Natural Gas Commission

S.B. Majmudar, J.—This appeal is filed by the original Plaintiffs of Civil Suit No. 133 of 1979 on the file of the learned City Civil Court Judge, Court No. 6, Ahmedabad. The learned trial Judge has dismissed the Plaintiffs'' suit claiming for the decree of damages to the tune of Rs. 2,00,000/- against the Respondent-Defendant Oil and Natural Gas Commission (hereinafter referred to as ''the Defendant-Commission'')- The Appellants-Plaintiffs contend that their suit was wrongly dismissed and it deserves to be decreed in toto.

In order to appreciate the grievance of the Appellants who will be referred in the subsequent part of this judgment as Plaintiffs and the Respondent-Commission as the Defendant for the sake of convenience, it is necessary to note a few relevant facts leading to this litigation.

I. Introductory facts

The Plaintiffs are the mother, four brothers and two sisters of one Mirza Sakhawat Ali Beg, since deceased, who met with a tragic and accidental death on 28.1.1978 on well No. K-35 owned, maintained and managed by the Defendant-Corporation at its Kalol project in North Gujarat. The said Mirza Sakhawat Ali Beg will hereafter be referred to as ''the deceased''. Plaintiff No. 1 is herself a widow having lost the father of the deceased, her husband Mirza Sultan Ali Beg in 1970. The Plaintiffs contend that the deceased met with his tragic death which nipped his career in the bud at the young age of 28 years, on account of the gross negligence on the part of the Defendant-Commission in maintaining the concerned well in a sound and fool-proof manner. That the Commission was vicariously liable for the negligence of its employees and for the said tortious liability of the Commission, the Plaintiffs who are the heirs and legal representatives of the deceased and who claimed also to be the dependants of the deceased were entitled to be given adequate damages as claimed in the suit.

As to the actual happening of the accident on the fateful day--28.1.1978, the case of the Plaintiffs is that the deceased who was working with the Commission at the relevant time as Assistant Engineer (Production) was entrusted with the work of supervising the working of the wells in Kalol project. On 28.1.1978 in the forenoon, the deceased accompanied by production operator Rajeshlal, Plaintiffs'' witness No. 2 and two khalasis or helpers named Babaji Bhuderji Vaghela and Keshaji Jivaji went to the well in question at 11.50 a.m. They went by an ambulance van driven by one Mr. G.K. Sheikh. According to the Plaintiffs, on reaching the site, the members of the crew engaged themselves in the work of changing the bean fixed on the concerned well. It is the case of the Plaintiffs that each of the oil wells maintained by the Commission is fitted at the top with a contrivance which consists of bean housing which includes within itself, bean and also a plug which fits the bean housing to the well pipe through which underground oil and gas flow and which are ultimately carried through down-tap pipe to the storage tanks. On the mouth of the well is fitted a pipe to which at the top is fitted the bean housing equipment. The bean housing is closed by means of cap plug. It is the case of the Plaintiffs that on the day of the incident, a complaint was received by the office of the Commission that gas coming out of the well K-35 was found to be over- produced, meaning thereby, that the bean comprised in the bean housing fitted at the mouth of the well to the well pipe was not working properly. It was pointed out by the learned Advocates representing the parties before us that the bean is a small iron rod through which the gas flowing out through the pipe at the mouth of the well is regulated for its onwards flow towards the storage tank. The bean has a hollow pipe of small diameter inside it through which the gas passes onwards. If the diameter of the existing pipe of the bean by constant pressure of gas and wear and tear gets enlarged, the production of the gas as "recorded in the meter would show excess. The complaint regarding over-production of the gas on the well in question therefore suggested that there was something wrong with the bean which regulated the outflow of the gas at the mouth of the concerned well. The crew under the supervision of the deceased, therefore, had gone on spot to replace the damaged bean. The Plaintiffs'' case, further, is that on reaching the site, the aforesaid party changed the bean, of course, after opening the bean housing by unscrewing the bean cap. It is not in dispute that the bean cap is a heavy iron cap weighing about 2 kg. According -to the Plaintiffs, after opening the bean housing and after removing the damaged bean and replacing it by a new bean, the bean housing was closed by the crew and the cap plug was rescrewed after applying tafflon tap to the threads of the cap plug. However, at that time, some leakage of gas from the bean housing was found and consequently, the cap plug was unscrewed, tafflon tap was again applied to the threads of the cap and the cap was again rescrewed for the purpose of closing the bean housing by inserting it into the cap seat attached to the bean housing. Even then, leakage of gas continued. The cap plug was again taken out, fresh tafflon tap was affixed to the plug threads and then the cap was refitted in the cap seat of the bean housing. Ultimately, leakage of the gas was stopped after the cap was rescrewed for the third time and then the crew started going away from the well site having finished their job, while they were in that process, the cap plug fitted on the bean housing blew up with terrific force. Lot of dust blew up in air and the blown up iron plug which as seen above, was weighing about 2 kg., unfortunately hit on the forehead of the deceased who was thrown upto a distance of about 100 feet from the well and succumbed to his injuries on the spot. That happened by about 12.30 p.m. on that fateful day. Members of the crew who had accompanied the deceased for changing the bean carried him to the municipal hospital at Kalol where he was pronounced dead. It is in these circumstances that the Plaintiffs filed the aforesaid suit in the trial court against the Commission for obtaining proper damages from the Commission on the basis of vicarious tortious liability of the Commission for the negligence of its staff in having maintained and used defective equipment on spot for controlling the outgoing gas from the well and its negligence in not properly ensuring the safety of its employees performing their duties at the oil wells and by not providing proper and safe equipment. According to the Plaintiffs, the deceased was a young man having a very bright and promising future. That at the time of his death, he was in grade of Rs. 650-1200 as Assistant Engineer. That he was B. Sc. Engineering (Mechanical) from Aligarh University and had joined the service of the Commission on 8.8.1975. His basic salary at the time of his death was Rs. 700/- per month and his total emoluments worked out to Rs. 1,225/- per month. According to the Plaintiffs, the deceased if his life had not been tragically cut short, would have certainly become Asst. Executive Engineer, Executive Engineer, Senior Deputy Director, Superintending Engineer, Project Manager, Chief Engineer and lastly General Manager which are the posts available in the hierarchy of posts available in the administrative set-up of the Commission. That the deceased was the bread-winner for the family and the Plaintiffs were depending upon him. The deceased would have got atleast Rs. 5,00,000/- as salary and with promotion and revision of pay scales his earning would have been much more, totalling to Rs. 8,00,000 to 10,00,000/-, if he had successfully completed his full service tenure. Under these circumstances, the Plaintiffs would have been entitled to much more damages, but they restricted their claim to Rs. 2,00,000/-.

The Defendant-Commission resisted the suit by its written statement Exh. 14 arid contended that the deceased was not the sole breadwinner of the family. He had no such prospects in his future career as alleged and that the unfortunate accident happened on account of the negligence of the deceased himself. The equipment as maintained by the Commission on the well was not defective. That the deceased was in supervision of the operation of the crew on the well and it is only because of his own negligence that he had suffered from the unfortunate accidental injuries which resulted in his death. Under these circumstances, according to the Commission, the Plaintiffs were not entitled to any relief from the Court.

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V. (a) Negligence of Defendant-Commission vis-a-vis

(b) Contributory negligence of the deceased.

Before adverting to this aspect of the matter, which is the main bone of contention between the parties, it will be convenient at this stage to deal with the anciliary contentions canvassed by the learned Advocates of the respective parties which will have a bearing on the relevant evidence touching upon this part of the controversy between the parties, and these anciliary contentions centre round the questions of admissibility of Exh. 28/1 and Exh. 32.

V. (a)-(i) Admissibility of Exh. 28/1.

As noted earlier, Exh. 28/1 is the accident report prepared by the Deputy Director of Mines Safety, Baroda. By a list Exh. 28, one Mr. Bhaskaran, stenographer in the office of the Director of Mines Safety, Udaipur region filed certain documents on behalf of the Plaintiffs. At SI. No. 1 was the original inquiry report by the Deputy Director of Mines Safety, Baroda. It is obvious that with the list, the witness only produced a bunch of documents wherein the first document is the aforesaid accident inquiry report. However, no effort was made by the Plaintiffs to get the contents of the report proved in accordance with law. It is under these circumstances that the learned trial Judge has not directed exhibition of the said document. Of course, the learned trial Judge drew upon provision of Section 35 of the Evidence Act and held that the report was not relevant under that provision. But Mr. Soparkar for the Appellants rightly realising non-applicability of Section 35 of the Evidence Act to the document in question, pinned his faith on Section 74 of the Evidence Act, read with Section 77 thereof. Mr. Soparkar submitted that this document is a public document and consequently, its contents need not be proved. It was produced in original from the proper custody for production by the witness Mr. Bhaskaran and, therefore, the trial court ought to have exhibited the said document. It is not possible to accept the aforesaid contention for obvious reasons. In order that a document can be treated to be a public document it has to satisfy the main requirements of Section 74 of the Evidence Act. As per that provision, the documents forming the acts, or records of the acts of the sovereign authority, of official bodies and tribunals and of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth or of a foreign country, would be public documents. According to Mr. Soparkar, Exh. 28/1 is a public document because it forms record of the acts of a public officer viz. Deputy Director of Mines Safety who, according to Mr. Soparkar, was acting as a statutory authority under the provisions of the Mines Act, 1952. Mr. Soparkar submitted that the report in question appears to have been submitted by the Deputy Director of Mines Safety, either u/s 23 or Section 24 of the Mines Act. It is true that as per Section 2 (j) of the Mines Act, the term ''mines'' includes, amongst others, oil wells. However, the question remains whether provisions of Section 23 or section ''24 were invoked by the Deputy Director of Mines Safety when he made the report in question. Section 23 of the Mines Act provides that whenever there occurs in or about a mine an accident causing loss of life or serious bodily injury, etc. the owner, agent or manager of the mine shall give notice of the occurrence to such authority in such form and within such time as may be prescribed. Sub-section (2) of Section 23 lays down that where a notice given under Sub-section (1) relates to an accident causing loss of life, the authority shall make inquiry into the occurrence within two months of the receipt of the notice and, if the authority is not the inspector, he shall cause the inspector to make an inquiry within the said period. A mere look at Exh. 28/1 shows that the authority which inquired was not inspector as the Deputy Director of Mines Safety had made the inquiry result whereof is mentioned in Exh. 28/1. Consequently, the statutory requirements of Section 23(2) of the Mines Act are not complied with by the concerned authority when he reported as per Exh. 28/1. This is not the report of the inquiry by an inspector. The term ''inspector'' is defined by Section 2 (i) and it reads: ''Inspector'' means an inspector of mines appointed under this Act and includes a district magistrate when exercising any power or performing any duty of an inspector which he is empowered by this Act to exercise or perform. No effort was made by the Plaintiffs to show that Deputy Director was acting at the relevant time as inspector appointed under the Act. As the Deputy Director of Mines Safety who is said to have made report at Exh. 28/1 was not an inspector as defined by the Act, it is obvious that his report of inquiry into the accident in question cannot be covered by Section 23(2) of the Mines Act. That leaves the consideration of Section 24 of the Mines Act which provides that when any accident of the nature referred to in any of the clauses of Sub-section (1) of Section 23 occurs in or about a mine, the Central Government may, if it is of opinion that a formal inquiry into the causes of and circumstances attending the accident ought to be held, appoint a competent person to hold such inquiry and may also appoint one or more persons possessing legal or special knowledge to act as assessor or assessors in holding the inquiry. Sub-section (2) of the said provision provides that the person appointed to hold any such inquiry shall have all the powers of a civil court under the Code of Civil Procedure, 1908 for the purpose of enforcing the attendance of witnesses and compelling the production of documents and material objects. Sub-section (4) of Section 24 provides that the person holding an inquiry under this section shall make a report to the Central Government stating the causes of the accident and its circumstances, and adding any observations which he or any of the assessors may think fit to make. As per Section 27, the Central, Government is empowered to cause publication of any report submitted by a committee u/s 12 or any report or extracts from any report submitted to it u/s 26 and it is also competent to cause every report submitted by a court of inquiry u/s 24 to be published at such time and in such manner as it may think fit. It cannot be said that the report Exh. 28/1 submitted by the Deputy Director of Mines Safety is a report of court of inquiry duly constituted u/s 24 as there is nothing on record to suggest even remotely that it was the Central Government which had constituted the court of inquiry nor is there anything to suggest that report Exh. 28/1 was submitted by the court of inquiry to the Central Government. In the absence of any such data, it is impossible to conclude that report Exh. 28/1 was the report of the statutory court of inquiry as constituted u/s 24. In that view of the matter, it is not possible to accept the contention of Mr. Soparkar that Exh. 28/1 is a public document being a report of statutory authority functioning u/s 23 or Section 24 of the Mines Act.

Mr. Soparkar alternatively contended that in any case, the Deputy Director of Mines Safety is certainly a public officer and it is easy to visualise the same and once that is so, the report which is submitted to a higher authority, can be treated to be a public document. It is true that the Deputy Director of Mines Safety is a public officer and there cannot be any controversy about the same. In fairness, Miss Shah for the Respondent-Commission, did not address any argument to the effect that he was not a public officer. However, she vehemently contended that what is stated in the report is not the record of the act of public officer as such. That it is not even suggested by the Plaintiffs independent of Section 23 or Section 24 of the Mines Act, that the Deputy Director of Mines Safety while he submitted his report after holding inquiry on spot, was functioning under any other statutory provisions or was discharging any public duty and that his report might be the report of a private inquiry held on spot by him for being submitted to his higher authority. Unfortunately for the Plaintiffs, there is total blackout on this vital aspect. It is not even tried to be suggested under what circumstances the Deputy Director came to the spot and inquired and why he did so, and under what other provisions of any Act or regulations, he undertook such exercise. In the absence of such evidence led by the Plaintiffs, it is impossible to comprehend how and under what circumstances, the Deputy Director came on spot and made inquiry. He would have been the best person to point out relevant facts to the court. But unfortunately, he could not be summoned by the Plaintiffs to enter the box. In the absence of his evidence, therefore, document Exh. 28/1 has remained unproved on record. Its contents cannot go in u/s 77 of the Evidence Act as secondary evidence of a public document as no data has been brought forward on record by the Plaintiffs to show that it was a public document as seen hereinabove. Reliance placed by Mr. Soparkar on Brajasunder Deb v. Rajendra Narayan AIR 1941 Pat 200; Raja Gopala v. Election Commissioner AIR 1957 AP 339; Manu Pujhari and Another Vs. State of Orissa, ; AIR 1928 155 (Oudh) , cannot be of any assistance to the Plaintiffs for the simple reason that on the facts of this case, it has net been shown that the Deputy Director who made the report after the inquiry on spot was acting as a public officer when he visited the site and made report and as nothing has been pointed out to show that he was discharging any public or statutory functions while inquiring into the matter and making report thereafter. Consequently, it must be held that the learned trial Judge was justified in not exhibiting Exh. 28/1 on record and in not considering it for basing his decision one way or the other.

V. (a)-(ii) Admissibility of Exh. 32

That takes us to the second ancillary contention. Miss Shah for the Commission vehemently contended that Exh. 32 cannot be admitted in evidence for diverse reasons. Firstly, she submitted that it is a privileged document which cannot be taken on record in the present proceedings. Secondly, she contended that in any case, the contents of the said document were not legally proved and lastly, she contended that some of the contents thereof involved only hear-say evidence which is inadmissible on record and that part of the document cannot be read as evidence in the case. We shall deal with the aforesaid three objections put forward by Miss Shah against admissibility of Exh. 32 seriatim.

So far as the first objection of Miss Shah is concerned, it may be stated that by Exh. 20, the Plaintiffs'' advocate in the trial court requested the court to issue a witness summons to the authorities of the Commission directing them to produce, amongst others, the report of the departmental inquiry instituted by the Commission which had to go into causes of the accident after holding an inquiry on spot. Pursuant to the summons issued by the court, Mr. S.C. Chakraborty, Project Manager (Officiating) and head of the Project in Ahmedabad Division of the Commission, by his application Exh. 23 submitted to the trial court that as the Commission was claiming privilege, the inquiry report of the committee in respect of the said accident which was produced in a sealed cover as per Exh. 24, may not be directed to be taken on record. Thus by Exh. 23, the only objection against the inquiry report being permitted to go on record centered round the plea of privilege. It is this objection as per Exh. 23 which was overruled by the learned trial Judge by his order below Exh. 23 dated 13.11.1981. Miss Shah for the Respondent has reiterated the very same contentions canvassed by the Respondent before the trial court against inadmissibility of Exh. 32. The Defendant-Commission relied upon Section 124 of the Evidence Act for ruling out Exh. 32 from the record of the case. Section 124 reads as under:

No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.

A mere look at the aforesaid provision shows that before an official communication can be clothed with privilege of secrecy, it has to be �shown that the said communication was made in official confidence and that the concerned officer to whom the communication is made considers that public interest would suffer by its disclosure. It is difficult to appreciate how any of the aforesaid conditions of the said section can be applied to the facts of the present case. After the fatal accident in question, it was the Commission itself which appointed a Domestic Commission of Inquiry of competent officers and directed them to go on spot and find out as to how the accident occurred and to suggest way and means for avoiding such accidents in future. There was nothing confidential about the same. Every aspect of it was made public. Inquiry was made on spot. Evidence of witnesses was recorded by the inquiry committee and thereafter report was submitted to the competent authority by the inquiry committee. There was no question of arty public interest suffering on account of the disclosure of the findings of the inquiry committee. On the contrary, public interest would suffer if disclosure is not made as the findings would enlighten the Commission about defects in equipment on the well sites and would enable it to plug the loopholes so that in future such unfortunate accidents can be avoided and health hazards to the members of the crew who might be operating on the wells and even to the members of public who might have occasion to go in the vicinity can be successfully avoided. Thus, disclosure of the findings of the inquiry committee in its report was imminently in public interest. There was no official confidence or secret permeating round the said report. The learned trial Judge was, therefore, perfectly justified in taking the view that the report in question did not get benefit of the protective umbrella of Section 124 of the Evidence Act. It is useful to note that a learned single Judge of the Bombay High Court in the case of Bhalchandra Dattatraya Bubane Vs. Chanbasappa Mallappa Warad, , had made the following pertinent observations in connection with applicability of Section 124 of the Evidence Act to the documents which are sought to be covered by them:

But it is essential to bear in mind the cardinal fact that privilege does not attach to a document merely because it is a State or official document. The foundation of the claim rests on the consequences of disclosure of a communication made in official confidence whose publication the officer to whom it is made considers contrary to the public interest. In my opinion a communication in official confidence requiring protection u/s 124, Evidence Act, must be such as to necessarily involve the wilful confiding of secrets with a view to avoid publicity by reason of the official position of the person in whom trust is reposed, under an express or implied promise of secrecy. The test must be whether the disclosure would result in betrayal of the person confiding by the publication of the communication having regard to the nature thereof. The prerogative right therefore has to be distinguished from the evidence showing how it arises in a particular case.

We entirely concur with the aforesaid observations of Wassoodew, J. of the Bombay High Court. On the facts of this case, contents of Exh. 32 are miles apart from the requirements of Section 124 of the Evidence Act. In these circumstances, the first objection of Miss Shah against admissibility of Exh. 32 on the plea of official secrecy has to be ruled out.

So far as the second objection of Miss Shah is concerned it is equally on a weak footing. Exh 32 is the report of the inquiry committee appointed by the Commission itself. The committee consisted of expert officers of the Commission who were ordained to go on spot immediately after the accident and to find out causes of the accident and to suggest ways and means for avoiding such accidents in future. Under these circumstances, there is no question for the Commission to doubt the veracity of the truth of the contents of report Exh. 32. Even application Exh. 23 given by the Production Manager of the Commission who produced the report, Exh. 32 with list Exh. 24 at Exh. 24/1 merely sought protection of Section 124 of the Evidence Act, as the only submission for ruling out the document from record. It was never the case of the Commission that report which was submitted in a sealed cover was not the genuine and true report of the committee appointed by the Commission itself. Thus, in short, no objection about the truth of contents of Exh. 24/1 i.e. Exh. 32 was ever put forward before the trial court and rightly so, as that was the report of its own committee of experts appointed by the Commission for enlightening itself about the causes of the accident and about the future safety steps which were required to be taken to avoid such accidents. Once the learned trial Judge ruled out the plea of secrecy u/s 124 of the Evidence Act vide its order below Exh. 23 dated 13.11.1981, the sealed cover in which the document was contained was opened and the contents of the document were utilised for cross-examining Defendant''s witness Devidas Patil who entered the box on 18.11.1982. Not only that, but the witness of the Defendant accepted the contents of the said documents, Exh. 32. Nothing was suggested by him or even whispered to the effect that the contents of the said report were in any way untrue. His only grievance was that he did not agree with only two conclusions at points 7.2 and 7.1 (ii) of the report. He endorsed all other points in the report Exh. 32. The Plaintiffs of course had no objection to the said report being exhibited and that is how it went on the record of the case and was utilised by both sides for the purpose of their own respective cases. In fact, both the sides have relied upon different parts of Exh. 32 in support of their rival contentions on the aspect of negligence and contributory negligence. It is, therefore, too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal that contents of Exh. 32 were not proved in accordance with law and hence the document was required to be taken off the record. It is now well settled that objection about mode of proof can be waived by a party and unless such objection is raised by the party at the earliest opportunity in the trial court, such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in appeal (vide P.C. Purushothama Reddiar Vs. S. Perumal, ; AIR 1943 83 (Privy Council) . In view of this settled legal position, the objection raised by Miss Shah against admissibility of Exh. 32 viz. that its contents were not proved in accordance with law has to be repelled.

That takes us to the consideration of the third and the last objection of Miss Shah against Exh. 32. She submitted that report Exh. 32 partly consists of what the reporting authorities found on spot when they went on spot to inquire at the well site about the causes of the accident and partly consists of mere recommendations which are in the nature of opinion of experts having less evidentiary value and in other part it consists of hearsay evidence of what certain witnesses stated to the inquiry committee-member on spot and in the absence of examination of such witnesses before the court, that part of the report which is based on hearsay evidence cannot be looked into. So far as the report consisting of what the committee members themselves saw on spot is concerned, the contents of the document being not objected, they can certainly be relied upon by both the parties in support of their respective cases. So far as what the committee members recommended for avoiding such future accidents and their conclusion about the causes of the accident are concerned, they do involve opinion of experts who went on spot, but insofar as this opinion is endorsed by the Commission''s own witness Patil, Exh. 31, the opinion expressed by the committee members would get further fortified and will have clinching effect on the result of the case. The Commission cannot get out of what its own expert has stated about the accident and what its own witness in the witness box adopted and endorsed. So far as hearsay part of the report is concerned, the committee members on spot had recorded statements of three persons viz. Rajeshlal and two khalasis viz. Babaji Bhuderji and Keshaji Jivaji. Out of these three persons, Rajeshlal was already examined as a witness in the court and hence, the report based on what Rajeshlal stated cannot be said to be hearsay. Miss Shah is, of course, right to the limited extent that the report based on what Babaji Bhuderji and Keshaji Jivaji stated would contain hearsay evidence and that part of the report cannot be relied upon. When we shall consider the main contents of the report on merits, we shall indicate as to what part of the report cannot be considered in evidence on this objection. That disposes of the controversy centering round admissibility of Exh. 32.

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V. (a)-(iii) Negligence of the Commission''s employees and vicarious liability of the Commission.

It must be kept in view that so far as claimants are concerned, they are third parties. They obviously cannot know as to how and in what circumstances the unfortunate accident happened which snuffed off the life of the young engineer on spot. It is the Defendant Commission through its concerned employees in charge of maintenance and operation of wells that can have personal knowledge about the same. u/s 106 of the Evidence Act, therefore, burden will be on the Defendant Commission to point out as to how and under what circumstances this unfortunate accident happened. The facts centering round the same are obviously within the knowledge of the Defendant''s own personnel who were in charge of the maintenance of wells. Of course, the deceased was one of them but as he is no more to enlighten the court on this aspect, it will be for the Defendant Commission to point out by leading relevant evidence of other members of the crew or personnel who were concerned with operation of the well as to how the accident in question occurred. The second important aspect of the matter which has to be kept in view is that from the manner in which the accident occurred, a clear inference would arise that it was a case of res ipsa loquitur. The cirumstances spoke for themselves. Normally, the wells which are equipped with safety devices and their out-take gas pipes at the mouths of the wells being fitted with bean housing for controlling and regulating output of gas do not usually eject or throw off their heavily weighing iron bean caps forcefully in air so as to cause health hazards to innocent persons who might have been unfortunate enough to be engulfed in their trajectory. Blowing off of such a weighty iron plug with great velocity indicated that there was something unusual in the concerned equipment. Such accidents do not happen in cases of normal equipments which are functioning safely and smoothly. In these circumstances, it must be held that blowing off of this heavy bean cap with great velocity would per se raise an inference of negligence against the Defendant Commission requiring it to prove affirmatively that they have exercised all reasonable care to displace the presumption as such events are out of ordinary and normally do not occur if the equipment on the well head was functioning normally and in a safe manner. Keeping in view the aforesaid general aspects of the matter, we may turn to the concrete facts of the case. However, before we actually undertake that exercise, it will be profitable to preface the same with a reference to the well established legal position touching upon the question in controversy between the parties. In Charles-worth on Negligence, Sixth edition (1977), the following pertinent observations are found in para 1035-a in connection with duty of the master towards the employees-workers on spot in connection with his business or occupation:

Sub-divisions of the duty. The duty may be considered under five heads; (1) to provide a safe place of work, including a safe means of access; (2) to employ competent servants; (3.) to provide and maintain adequate appliances; (4) to provide safe system of work; and (5) other cases.

The very same passage has been quoted with approval by a Division Bench of this Court and applied to the facts of an accident case wherein by coincidence, the very same Defendant, viz, O.N.G.C. was called upon to answer the claim of damages due to injuries to one of its employees. The Division Bench judgment was delivered in the case of Bhupendrakumar Kohli Vs. Oil and Natural Gas Commission, Sabarmati, Ahmedabad, . Applying the doctrine of res ipsa loquitur, the Division Bench speaking through M.P. Thakkar, J. (as he then was) made the following pertinent observations:

The principal function of the maxim res ipsa loquitur is to prevent injustice which would result if a Plaintiff were invariably compelled to prove the precise cause of the accident instead of the Defendant responsible for it even when the facts bearing on the matter are at the outset unknown to him and often within the knowledge of the Defendant. The mere happening of the accident may be more consistent with the negligence on the part of the Defendant than with other causes. The maxim is based on common sense and its purpose is to do justice when the facts bearing on causation and on care exercised by the Defendant are at the outset unknown to the Plaintiff and are or ought to be within the knowledge of the Defendant.

It has been further observed in that decision:

It can safely be concluded that in the normal course of events, the accident would not have occurred. It was not in the very nature of things that the hole in the casting pipe should give way when the force was applied. It happened because the material was not sufficiently strong or the force which was applied was in excess of the force which could be safely applied. Since it cannot be said that the accident would in normal course of events have occurred, the doctrine would surely be attracted. Once this conclusion is reached the burden is on the Defendant to establish that it had taken sufficient precautions to avert such a mishap and had provided sufficient safeguards to prevent such an eventuality.

The Division Bench then drew upon the aforesaid observations of Charlesworth on Negligence in para 1035-a and held that if the master did not provide safe place of work including a safe means of access, did not employ competent servants, or provide and maintain adequate appliances and provide a safe system of work, he will be guilty on charge of negligence. It is in the background of the aforesaid settled legal position about employer''s liability and the nature of burden of proof which rests on the shoulder of the Commission on the facts of this case, that the twin question in controversy between the parties about the negligence and contributory negligence, of the Commission through its employees and the deceased employee respectively have to be examined.

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Now is the time for us to take stock of evidence on the moot point about the negligence of the Commission through its employees. The aforesaid evidence leaves no room for doubt that the accident has occurred mainly because the equipment on the well in question viz. bean housing seat which was affixed on the well and which was to serve as a socket in which cap or plug was to be screwed was already defective perhaps due to over-use and due to wear and tear with passage of time. It is also well established from the report of the committee that the cap in the bean housing has got 13 threads while the cap seat which received cap in the bean housing had only six threads. Thus, even if cap is fitted in full, 7 threads thereof would protrude outside. But this is the type of equipment which was used by the Commission on all wells. Merely because cap seat was smaller in size as compared to the cap, it cannot be said that the equipment was not standardised one or that merely because of that fact, negligence can be implied in installation of equipment by the Commission on the well site as contended by Mr. Soparkar for the Plaintiffs. It is necessary to note that such type of bean housing including bean housing seat and cap were used on all the wells maintained by the Commission. It is also found from the evidence that such mishap had never occurred on any other well. Consequently, it is not possible to agree with the extreme contention of Mr. Soparkar for the Plaintiffs that merely because a cap of larger size is fixed in the cap seat of the bean housing which had only smaller room to accommodate it, the cap would per se be a potential source of danger and was likely to be thrown off by the underground gas which may ultimately flow through the bean housing. It is also not possible to agree with another general submission of Mr. Soparkar for the Plaintiffs that the Commission''s negligence would lie in the fact that there was no safety device or lock system applied to the bean housing. In fact, the nature of the equipment over the wells as used by the Commission over all the wells showed that from the very beginning, this type of standard bean housing equipment was being used and when there was no mishap reported in any of the wells,.it would be too much to suggest that because of absence of locking system, the equipment used was an unsafe equipment. However, the negligence of the Commission on the facts of this case can be found in maintaining defective bean housing equipment on the well in question as it is seen from the committee''s report. Even though all the 13 threads of the cap were serviceable and intact when the cap was inserted in the cap seat of the bean housing on the well in question, the first three threads of the cap seat did not offer any resistance in the sense that, they were not serviceable and the cap directly went inside without the threads of the cap seat effectively receiving the cap for the purpose of screwing. That showed that the first three threads of the cap were already damaged. It is easy to visualise that if the cap seat socket which has to receive and keep the cap in fixed, tight and safe condition, had 50% of its six threads unserviceable, its safety would be impaired by 50%. The report Exh. 32 has further shown that remaining three threads seemed to have been sheared by pressure of three persons which was applied by the members of the crew at the suggestion of the deceased. Thus, out of total six threads in the cap seat in the bean housing in question, three threads were already damaged by prior use. Thus, the cap seat was unsafe to the extent of 50%. Remaining three threads of the cap seat got sheared by pressure of three persons as directed by the deceased. To that extent, liability of the deceased would certainly remain to be considered. We will consider the same hereafter. The result was that cap seat became totally useless and got unsafe 100% as all its six threads became unworkable. The first three threads were already out of use and unserviceable; the remaining three threads got sheared after the crew applied pressure of three persons to tighten the cap. The result was that the cap became absolutely misfit in the cap seat. The cap seat could not contain it all or keep it safe as all its six threads went out of order before the accident. This is the reason for the blast. Because of the pressure of gas coming from the well, cap which could not be fitted in the bean seat was blown off and which unfortunately took the life of the deceased. Consequently, it must be held that the Commission was negligent in maintaining defective equipment on the well in question in the nature of 50% unserviceable cap seat in the bean housing affixed on the well which became the scene of tragedy on that fateful noon. To recall what Charlesworth on Negligence has stated about duties of employer and which we have noted in the earlier part of this judgment, it is the duty of the employer to maintain the equipment in safe condition. The bean housing maintained by the Commission on the well in question on that day was certainly unsafe. The question remains as to whether the Commission would be vicariously liable for the negligence of the crew members who went on spot, or not. The evidence of witness Rajeshlal indicates that the deceased was a technical supervisor, but the actual working on spot was done by witness Rajeshlal in the company of two helpers or khalasis. It also is obvious that if the deceased was told that the cap seat was defective and 50% of its threads were unserviceable, he would have certainly ordered replacement of the entire bean housing which would have brought in a new bean housing with new cap seat with all the six threads fully functioning. It must be noted that there was nothing wrong with the cap itself. Witness Rajeshlal stated that if the threads of the plug were loose, tafflon tap would not have been applied to them. Witness Patil also stated that there was nothing wrong with plug. Under these circumstances, the flying off of the plug was entirely due to the defect in the plug seat which was to receive it and keep it tight. As Rajeshlal had opened the bean housing he, if careful, would have found out that 3 threads of the cap seat were loose. Unfortunately Rajeshlal due to his negligence or carelessness or inadvertence, could not detect that three threads of cap seat were already out of order. Two inferences are possible in the light of inaction on the part of Rajeshlal. Either Rajeshlal did not detect the damage to the cap seat because of his negligence or carelessness or he might have detected but did not think it fit to bring it to the notice of the deceased who was in charge of the supervising operations on spot. Both ways, Rajeshlal would remain responsible for his negligence. It goes without saying that if Rajeshlal would have been careful enough and if he had detected this fact and reported it to the deceased, this unfortunate accident would have been avoided. New bean housing alongwith new cap would have been ordered by the deceased and it would have been affixed and cap would not have blown off. Thus, the negligence of the Commission lies in maintaining defective 50% unserviceable cap seat on spot. It is of course turn, that the Commission functions through the employees and would be responsible only (sic) riously. But so far as defective equipment on(sic) well in question is concerned, Rajeshlal being the main operator on this well, insofar as he could not detect or did not detect that bean housing cap seat was defective and its serviceability was reduced by 50%, his negligence would make the Commission vicariously liable. Consequently, it must be held that there was initial negligence of the Commission through its concerned employees on spot which had resulted into the unfortunate accident.

It is also pertinent to note that even if it is suggested as was tried to be submitted by Miss Shah for the Commission, that the deceased himself who was a technical supervisor and who was in over-all charge of the repair operations on the well site, on that day, was negligent in not detecting this defect and that the Commission had to act only,through its expert staff members, even then, the negligence of the deceased would make the Commission vicariously liable to answer the claims in tort on behalf of the victims subject of course to the contributory negligence of the concerned victim. By sheer co-incidence, in the present case, the concerned victim was himself an employee who was directly connected with the repair works on the well. But that cannot exonerate the Commission from its initial liability in tort on the basis of vicarious liability through its concerned crew members. It is easy to visualise that if the cap which had flown off from the cap seat from bean housing on that day had hit a passer-by and if he had succumbed to his injuries, it would have been no defence for the Commission to submit that because their crew members were negligent and they did not change the bean housing which was defective, the Commission is not liable. In fact, 100% negligence would have been foisted on the Commission on the principle of vicarious liability. Consequently, merely because the victim was one of the members of the crew, it cannot be said that the Commission can get out of its initial vicarious liability as employer in tort. It is found that defective equipment was maintained on the well in question that cap seat defective equipment fully but was damaged to the extent of 50%, that caused the accident in question. It must, therefore, be held that the Commission is vicariously liable for tortuous act of negligence on the part of its concerned crew which was responsible for safe maintenance and upkeep of the equipment of been housing on the well in question and when such equipment was not kept in safe condition and it resulted in the nowing off of the cap from the cap seat, the blemishing would remain answerable in tort to Conpany claim of the dependents of the victim meet that, Consequently, it is not possible to of the to the finding of the learned trial Judge agree with situated in the report Exh. 32 cannot that what is gospel truth and that the accident be accepted as replay on account of the negligence had occurred (sic). As we have seen above the deceased would of the cap seat were not three out of six threat would have known the serviceable. Person who actually undertook the repair work under the sending by his side of the deceased who was state because of his and Rajeshlal who general instructions the repair work under the sanding by his side of the deceased who was state, because of his and Rajeshlal, unfortunately, did not detect own negligence or carelessness point out to the this defect or in any case did not positive cap seat deceased with the result that defective that cost was not replaced by the deceased and aforesaid him his own life. As a result of the affording discussion, it must be held, reversing the fine the of the learned trial Judge, that initially it is (sic) Commission which was vicariously responsible for the accident by maintaining such defective cap seat on spot. This liability in negligence has got fully established on the facts of the case.

V. (b)- Contributory negligence of the deceased.

However, this discussion leaves out a more important aspect of the matter and that is about contributory negligence of the deceased. This is a peculiar case in which the victim of the accident was himself the man in charge of the repair operations on the well. Thus, he was in a double role. As a technical supervisor, he was responsible for safe keeping and maintenance and repairs of the equipment on the well. To that extent, he was acting on behalf of the Commission. If because of his negligence, an innocent third party would have been injured, the Commission would have been 100% liable to meet the claim of such injured victim. But so far as the deceased is concerned, he himself was the representative of the employer on spot entrusted with the task of maintenance and repair of equipment on the well-head. If he has been negligent in the discharge of his duties and if the accident had occurred and which caused injuries to him, as a representative of the employer, his negligence would initially visit the Commission with negligence by way of vicarious liability. However, his own negligence would cut down the responsibility of the Commission to answer the claim on the ground of contributory negligence and if contributory negligence is 100%, the whole claim would fall through as the claim of the deceased himself would cut across the liability of the Commission on the principle of vicarious liability and may totally efface the same if the contribution of the deceased towards the accident was 100%. We now, therefore, set ourselves to the task of resolving this issue. Mr. Soparkar for the Plaintiffs submitted that there is no contributory negligence of the deceased. He stated that the Commission had maintained defective equipment on the well-head. That Rajeshlal was in charge of the actual repair works. The deceased was merely standing by and supervising the repair work. That the bean was also replaced and then in the process of fitting of the cap on the cap seat, if Rajeshlal has been negligent, the deceased cannot be found fault with. He further submitted that it is not possible to believe that the deceased would order three persons to tighten the cap and even if he had so ordered, it would make no difference. He further submitted that there is no clear evidence to suggest that the deceased was sitting down on the ground at the time when the cap flew off and consequently, no fault can be found with the deceased and his contributory negligence would be nil. Miss Shah for the Commission on the other hand submitted that his contributory negligence would be atleast 90% as Rajeshlal who had carried out the repair work had to do it under the instructions of the deceased. In our view, both these submissions represent two extremes. As we have found above, initially it was Rajeshlal who did not detect, because of his negligence that 50% of the bean housing set was unserviceable as its first three threads had already become useless due to prior wear and tear. However, that does not mean that the deceased who was in over-all charge of the maintenance and repair work could have been oblivious of the defects in the equipment which he was required to supervise and replace, if necessary. The evidence shows that after the bean was replaced and when on the first occasion, bean housing had to be closed, tafflon tap was affixed on the threads of the cap, but that was a routine exercise. Thereafter, when the cap was fitted in, leakage of gas was detected. Thereupon, cap was unscrewed and taken out. Again tafflon tap was affixed. It was again tried to be fixed up and even on that second occasion, leakage of gas was found. Thereafter, cap was unscrewed once again. On that occasion, at the instructions of the deceased, tafflon tap was affixed to the threads of the cap and great effort was made to refix the cap in the cap seat by using pressure of three persons as directed by the deceased. Negligence of the deceased becomes visible at that stage. It is understandable that when the cap was removed from the bean housing on the first occasion for replacing bean inside the bean housing and after that work of replacement was over, when the cap was to be refixed after applying tafflon tap, the attention of the deceased might not be drawn to the fact that there was something wrong with the cap seat. Still, however, on the second occasion, when the gas was found leaking, he directed fresh application of tafflon tap and on the second occasion, cap was tried to be rescrewed, but even that exercise was not successful as gas leakage was found even on the second occasion. Thereafter, the deceased ought to have thought that there was something wrong with the cap seat. But it never struck to him to his ill-luck and he again directed refixing of the cap by using pressure of three persons which resulted in shearing off of further three threads. This part of the exercise undertaken by the crew under the instructions of the deceased was highly rash and hazardous. As a technical supervisor, it should have struck the deceased that there was something wrong either with the cap seat or with the cap. As the threads of the cap were visible to naked eye and as the evidence shows that there was nothing wrong with the cap the deceased as technical expert ought to have realised that there was something wrong with the cap seat itself. Under these circumstances, entire bean housing should have been ordered to be replaced by him. He had full authority to do so. May be, he was in a hurry to go back for lunch or for some other reason, he did not take the trouble of reviewing the situation with care and minuteness which it deserved and unfortunately that cost him his life. This is one aspect of his contributory negligence. Second aspect of the contributory negligence arose when he remained in the trajectory of the cap after it was refixed on the third occasion with the pressure of three persons. The deceased ought to have realised as a technical hand that this cap was fixed with great pressure and efforts at third attempt in the cap seat. Therefore, the possibility of the cap not having been fitted well could not be ruled out. Under these circumstances, it was too hazardous for him to have remained in the near vicinity of the cap and in the line of its trajectory. He, however, out of negligence or over-confidence, remained in that trajectory and the result was that he was hit on the vital part of head by the flying cap. It is not possible to accept the contention of Mr. Soparkar that the deceased would not have remained in the line of the trajectory of the cap. If he would not have so remained and if he would have stood erect, he would never have been hit on the head as it happened. But his leg or any other part of the body would have been hit. The very fact that cap which was fixed on the bean housing at a distance of 2V2'' from the ground level as seen from the evidence on record, hit the deceased on the head clearly indicated that he must be bending down in the line of the trajectory of the cap when he met with the unfortunate accident. That also exhibits rashness or negligence on his part. It is not, therefore, possible to accept the contention of Mr. Soparkar that the deceased was no at all negligent and there was no contributory negligence on his part. Reliance placed by Mr. Soparkar on the decisions of the English courts in Devison v. Apex Scaffoldes Ltd. (1956) 1 All ER 473; Gallagher v. Dorman Long and Co. Ltd. (1947) 2 All ER 38 and Ross v. Associated Portland Cement Manufacturers Ltd. (1964) 2 All ER 452, cannot be of any assistance for the Plaintiffs for the simple reason that on the vital facts of this case, there is no escape from the conclusion that the deceased who himself was in charge of the maintenance and repair works of the equipment on the well, being a technical supervisor, had by his own negligence, substantially contributed to the causing of the accident. The aforesaid decision of the English courts decided on the facts of the respective cases cannot automatically be applied to the facts of the present case which are as discussed above, entirely different. The question then remains as to what is the extent of contributory negligence of the deceased. Miss Shah for the Defendant Commission submitted that the deceased was responsible to the extent of 90%. But that appears to be another extreme. As we have already seen above, initial negligence was of the witness Rajeshlal who did not detect when he was handling the defective bean housing that 50% of the bean housing seat was unworkable and had become unserviceable. If Rajeshlal had detected this defect, life of the deceased would have been saved as the deceased would have certainly ordered replacement of the entire bean housing. This initial negligence of Rajeshlal coupled with the duty of the Commission to maintain safe equipment on site cannot be lightly treated. It is true that the deceasd also had contributory substantially by his own contributory negligence in the causing of the fatal injuries to him. However, initial negligence of Rajeshlal which was the thin edge of the wedge cannot be lightly brushed aside. In view of these circumstances, negligence of Rajeshlal can atleast be assessed to the extent of 30% while major share of the contributory negligence would rest on the shoulders of the deceased as he was in over-all charge of the maintenance and supervision of the equipment on the well heads and, therefore, his contributory negligence can be evaluated at 70%. In our view, this type of apportionment of negligence would meet the ends of justice and the requirements of the case. Before parting with this aspect of the matter, it is worthwhile to note that even before the trial court, in the alternative, the Commission''s advocate suggested that the deceased had contributed to the extent of 75% and only 25% negligence would be of the other members of the crew and, therefore, of the Commission. It is of course true that as compared to the negligence of Rajeshlal, negligence of the deceased was much larger in scope and ambit. However, for even slightest negligence of Rajeshlal who was also a member of the crew, the Commission would remain vicariously liable. The Commission would have remained vicariously liable even for the major negligence of the deceased if it had faced compensation claim on behalf of an outsider if such outsider would have been the victim1 in the accident. In these circumstances, the commission would remain principally vicariously liable, for the negligence of its own crew, however negligible the same may be. As noted earlier, negligence of the deceased being far greater in scope as compared to that of initial negligence of Rajeshlal, apportionment of contributory negligence of the deceased vis-a-vis negligence of Rajeshlal will have to be made on that basis. Taking an over-all view of the entire evidence on record, we have come to the conclusion that the Commission would remain principally vicariously liable, deceased is held to be liable for the negligence at 70% and the remaining 30% negligence is held to be of the other members of the crew and, therefore, of the Commission vicariously, the ends of justice would be met.

xxx xxx xxx

It is not in dispute that the deceased was aged 27 years when he died. The aforesaid pleading in the light of the evidence of Plaintiff No. 4 clearly indicates that the deceased who was in the pay scale of Rs. 650-1200 at the time of his death as Assistant Engineer in the service of the Commission was drawing Rs. 1,225/- by way of gross emolument inclusive of allowances. Leaving aside the highest post of General Manager, the available ultimate post to the deceased would be the post of Project Manager, or Chief Engineer which is the highest post on the project engineering side carrying the pay scale of Rs. 2000-2200. Leaving. aside the question of upward revision of pay scales in future, it is very easy to visualise that if the deceased had lived through his full span of earning career, he would have easily got atleast Rs. 3,000/- per month by way of gross emoluments. He was getting Rs. 1,200/- by way of gross emoluments at the age of 27 years. He was qualified engineer having his B. Sc. Engineering (Mechanical) degree in first division in 1974 from Aligarh University. He had joined the Commission as technical assistant, Grade I on 8.8.1975. Within two and half years, his life was cut short and he died in harness. Under these circumstances, it is easy to visualise that had he lived the full span of life, he could have atleast got Rs. 3,000/- per month as gross emoluments at the fag end of his full career. Taking a mean of Rs. 1,200/- per month which was his gross emoluments at the time of his death and Rs. 3,000/- per month as gross emolument at the end of his career, if it had remained unimpaired, the average would work out to Rs. 2,100/- being one half of Rs. 4,200/-. So far as the dependent-claimants are concerned, only four claimants now remain in the field viz. Plaintiff Nos. 1, 4, 5 and 7. They are widowed mother, younger brothers and unmarried young sister of the deceased. It is easy to visualise that the deceased had he survived, would have married in due course and would have brought up a family of his own. Thus, the dependency benefit which he would have given to the present claimants would have lessened by passage of time. It is now well settled by a catena of decisions of this Court that where the dependents are parents or brothers and sisters and when the deceased had died at a young age without having married, the datum figure has to be sliced down by 2/3rd and only l/3rd has to be computed as available to the other dependents [see Ranchhodbhai Somabhai v. Babubhai Bhailalbhau 1982 ACJ (Supp) 548 (Gujarat)]. Under these circumstances, the datum figure of Rs. 2,100/- per month on an average which would have been the average income of the deceased over years had he survived, will have to be sliced down by 2/3rd and only l/3rd will have to be computed as being available for the dependents. That works out to Rs. 700/- per month. This would represent the datum figure of dependency benefit which the deceased would have made available over years to his dependents viz. the present concerned Plaintiffs. Annual figure on that basis works out to Rs. 8,400/-. The deceased was aged 27 at the time of his death. Plaintiff No. 1 is widowed mother who was shown to be aged 53 in 1980 when the witness Mirza Suja Ali Beg was in the witness box. She was, therefore, 51 years of age at the time of the accident. Other Plaintiffs were younger. Under these circumstances, for proper capitalisation of the amount of Rs. 8,400/-, 15 years'' multiplier can be easily pressed in service. On that basis, total amount works out to Rs. 1,26,000/-. This figure represents the net dependency benefit which has been lost to the claimants on account of the accidental demise of the deceased. To this, may be added proper figure by way of loss to the estate. The conventional figure which is being taken on this account is Rs. 5,000/-. However, looking to the fall of purchasing power of money over years and keeping in view the extent to which rupee has been eroded, time has come when we must revise upwards the figure of compensation awarded by way of loss to the estate. As laid down by two judgments of this Court [vide Chaturji Amarji v. Ahmad Rahimbux 1980 ACJ 368 (Gujarat) and Khodabhai Bhagwanbhai and Others Vs. Hirji Tapu and Another, , proper damages to be assessed on different heads have to undergo upward revision from time to time depending upon changing times and the extent of fall of purchasing power of currency. Keeping in view this fact, it must be held that compensation awardable on account of loss to the estate i.e. loss of expectation of life can be upward revised and brought to the figure of Rs. 10,000/- instead of the conventional figure of Rs. 5,000/- which is taken as standard figure uptil now. When this amount is added to Rs. 1,26,000/- the total figure of damages works out to Rs. 1,36,000/-. This will be the amount which would have been made payable to the Plaintiffs had the deceased not been found guilty of contributory negligence. However, as the contributory negligence of the deceased is assessed at 70%, this amount will have to be sliced down accordingly. The concerned Plaintiff therefore, would be entitled to only 30% of the aforesaid amount. That would work out to Rs. 40,800/- i.e. roughly Rs. 41,000/-. Now, we must clarify that so far as Plaintiff Nos. 1,4,5 & 7 are concerned, they are the only Plaintiff who can get the dependency benefit. However, all the Plaintiffs would be entitled to damages awarded on account of loss to the estate as they are all heirs and legal representatives of the deceased as per the Muslim principles of succession. The dependency benefit has been calculated at Rs. 1,26,000/-. 30% thereof would work out to Rs. 37,800/- i.e. roughly Rs. 38,000/-. Plaintiff Nos. 1, 4, 5 and 7 will be entitled to receive this amount while remaining Rs. 3,000/-which roughly represents 30% of the compensation awarded on the account of loss to the estate will be payable to all the Plaintiffs as heirs and legal representatives of the deceased, of course with proportionate cost and interest, all throughout.