The main legal point established in the judgment is the determination of negligence in a motor vehicle collision, the credibility of witness testimonies, and the rejection of unfounded allegations.

JUDGMENT

Asutosh Mookerjee, J. - This is an appeal by the defendant in a suit for damages. The plaintiff is a Blast France keeper in the Bengal Iron and Steel co. the defendant is a a Superintendent of Collieries. On the night of the 9th December 1916 the plaintiff was proceeding on his motor cycle from Asansol to Kulti along the Grand Trunk Road, the defendant was driving his motor car in the opposite direction. The car and the cycle collided with the result that the cycle was damaged and the plaintiff sustained severe injuries. He was detained in hospital for a considerable time and has become maimed and disfigured for life. The plaintiff asserts that the collision was due to the negligence of the defendant and claims, Rs. 10,534 as damages. The substance of the case for the plaintiff is set out in the third and fourth paragraphs of the plaint Sled on the 6th August 1917, where ii is alleged that while the plaintiff was proceeding on his motor cycle along the left side of the road, he saw two motor cars coming at a great speed from the opposite direction one behind the other, that the plaintiff passed the first motor tar whereupon the defendant who was driving lis car just behind the first car, without any warning and contrary to the rules of in the road, suddenly and negligently swerved out at a high and dangerous pace to the right in order to piss the first car, with the 0 result that his car dashed into the cycle of the plaintiff. The case for the defendant is set out in the seventh paragraph of his written statement filed on the 1st October 1917, in which it is stated that he had passed the car in front (which was driven by one Mr. Gibson) as also another gentleman (one Mr. Hall) who was coming in a motor cycle evidently in the same direction as the plaintiff, and that there after the plaintiff ran into and collided with his car. The defendant states that the distance between Mr. Gibson's car and Mr. Hall's cycle was 100 ft,: and that between Mr. Hall's cycle and the plaintiff's cycle was 300 ft. He farther adds that at the moment of collision, he was proceeding by his left side of the road, leaving more than half the width of the road for vehicles coming from the opposite direction to pass. In the 8th paragraph of the written statement, the defendant alleges that on enquiry he learnt that the plaintiff bad consumed a quantity of spirits at a refreshment room at Asansol which made him negligent, reckless and confused, and accounted for his suddenly running into the aar. The respective allegations, it may be observed, had been formulated by the parties in the course of correspondence antecedent to the suit, namely, on the 19th May 1917, on behalf of the plaintiff and the 19th June 1917, on behalf of the defendant. The Subordinate Judge has found that the collision was brought about by negligence on the part of the defendant. He has disbelieved the story that the plaintiff was under the influence of liquor, and, unable to control himself, dashed into the car of the defendant. He has also accepted the plaintiff's story that the accident happened at the time when the defendant was trying to pass Mr. Gibson's car. The Subordinate Judge has accordingly decreed the suit, holding, as regards the measure of damages that the amount claimed was not unreasonable. On the present appeal the judgment of the Subordinate Judge his been attacked on the ground that his conclusions are not supported by the evidence on the record and that he has in fast given the plaintiff a decree on a theory inconsistent with the case made in the plain. It has not been disputed on behalf of the respondent that, as pointed out by Lord Westbury in Eshen chunder Singh v. Shamachurun Bhutto 11 M. I. A. 7 : 6 W. R. P. C. 57 : 2 Ind. Jur. (n. s.) 87 : 2 Sar. P. C. J. 209 : 20 E. R. 3. and recently affirmed by Sir Liwrence Jenkins in Malraju Laithmi Venkayyamma Row v. Venkatadri Appa Row (sO.itisabsolutely necessary that the determinations in a cause should be fou