1. On 13th September 1960 one Abdul Majeed was going on a bicycle from Bhagur to Deolali camp near Nasik. At that time defendant No. 1, who was a driver employed in the defence department, came in a military truck from the opposite direction. The military truck dashed against the bicycle of Abdul Majeed with the result that Abdul Majeed received severe injuries and died on the spot. He left behind his young wife and six minor children. The wife and the children filed a pauper suit for the recovery of damages estimated at Rs. 30,000 from defendant No. l and from the Union of India defendant No.2. The plaintiffs alleged in the plaint that the accident occurred because of the rash and negligent driving of defendant No. l, that defendant No. l was on Government duty when the accident took place, and that both the defendants were liable for damages. In his defence, defendant No. l denied that he was rash or negligent in driving the truck and further pleaded that the amount of damages claimed by the plaintiffs was excessive. The Union of India took up the same defences and advanced a further plea that they were not liable for the tort alleged to have been committed by defendant No. l as the latter was in military service. On the evidence led before him the learned trial Judge found that the accident was occasioned by the rash and negligent driving of defendant No. 1, that the amount claimed by the plaintiffs by way of damages was fair and proper, and that the Union of India was liable for the tort along with defendant No. 1. On these findings the learned Judge passed a decree for the payment of Rs. 30,000 and costs by the defendants to the plaintiffs. From this decree the Union of India has filed the present appeal. No appeal was filed by defendant No. 1.
2. Adequate evidence was produced at the trial to show that at the time of the accident the deceased Abdul Majeed was riding on his bicycle on the left side of the road, that defendant No. l came in his truck at great speed from the opposite direction, that he swerved to his right to pass a tonga, that he dashed the truck against the bicycle of the deceased and that thereafter the truck went to a distance of 108 feet and struck against a tree. Defendant No. l was convicted by Court Martial under Section 304A I. P. C, for causing death by rash and negligent driving. In view of the evidence on record the learned Government Pleader, who appeared before us on behalf of the Union of India did not find it possible to contest the trial Court's finding that the accident was occasioned by the rash and negligent driving of defendant No. 1.
3. Two contentions were advanced by the learned Government Pleader before us: (1) that the Union of India was wrongly held liable for the tortious act of defendant No. 1, and (2) that the amount of damages allowed to the plaintiffs was excessive.
4. In deciding whether the Union of India is liable for the tort committed by defendant No. l it is necessary to notice the duty in which defendant No. l was engaged at the time of the accident. Defendant No. l was attached as a military driver to the School of Artillery conducted by the defence department of the Government of India at Deolali. A machine of School of Artillery called 'Records Sound Ranging' and some other equipment had been sent for repair to a military workshop, and after the work of repair was over defendant No. l was, at the time of the accident, transporting the machine and the other equipment in the military truck from the workshop to the School of Artillery. It is in evidence that Records Sound Ranging is a machine for locating enemy guns. The machine was to be used at the School of Artillery for giving training to military officers.
5. The principles which determine the immunity of the State in respect of the torts committed by its servants during the course of their duty can now be taken as well settled. The extent of the immunity of the State is the same as the extent to which the East India Company was immuned from liability for similar torts committed by its employees. The East India Company was not liable for a tort committed by its employees while performing a duty which amounted to the exercise of a sovereign power delegated to him. In other cases the vicarious liability of the East India Company was the same as the liability of an ordinary employer. It follows that the Union of India would be liable for the tort of defendant No. l unless it is found that defendant No. 1, while driving the truck from the military workshop to the School of Artillery, was doing a duty in discharge of a sovereign power delegated to him.
6. The leading authority on the subject is the decision of the Supreme Court, Calcutta, given in 1861 in the Peninsular & Oriental Steam Navigation Company v. The Secy. of State for India (1868) 5 Bom CR .1. In delivering the judgment of the Court Sir Barnes Peacock, C. J., after pointing out that the East India Company was a trading Company to whom sovereign powers had been de1egated, observed:
''There is a great and clear distinction between acts done in the exercise of what are usually termed sovereign undertakings which might be carried on by private individuals without having such powers delegated to them.' In the latter part of the judgment the learned Judge said: 'But where an act is done, or a contract is entered into, in the exercise of powers usually called sovereign powers, by which we mean powers which cannot lawfully exercised except by a sovereign or private individual delegated by sovereign to exercise them, no action will lie.'
7. The above principle was approved and adopted by the Supreme Court in two recent cases. In State of Rajasthan' v. Mst. Vidyawati, : AIR1962SC933 , a person employed as a motor driver by the state of Rajasthan had caused a fatal accident while driving a Government jeep car in rash and negligent manner. The car was meant for the use of the Collector. It had been taken to a repair shop and was being driven after the repair to the Collector's residence when the fatal accident took place. The trial Court had held that the State of Rajasthan was not liable for the tort of the driver because the car was being maintained for the use of the Collector in the discharge of his official duties. The High Court of Rajasthan disagreed with the trial Court and held that the State of Rajasthan was liable because at the time of the accident the car was not being used in the exercise of any sovereign power of the State. The decision of the High Court was upheld by the Supreme Court. Delivering the judgment of the Supreme Court, Sinha C. J. said:
'Can it be said that when the jeep car was being driven back from the repair shop to the Collector's place when the accident took place, it was doing anything in connection with the exercise of sovereign powers of the State? It has to be remembered that the injuries resulting in the death of Jagdishlal (the deceased in that case) were not caused while the jeep car was being used in connection with the sovereign powers of the State.'
8. The other case in which the Supreme Court considered the extent of the vicarious liability of the State for the torts committed by its servants was M/s Kasturi Lal v. State of Uttar Pradesh, : (1966)IILLJ583SC . In that case a quantity of gold was attached by police officers from one Ralia Ram, who was a partner of the plaintiff firm, on suspicion that it was stolen property. The gold was kept at the police Malkhana in the custody of a Head Constable who, however, misappropriated the gold and fled to Pakistan. It was alleged by the plaintiffs that the loss was caused by the negligence of police officers in not taking proper care of the attached property and this plea of the plaintiffs was upheld by the Supreme Court. The Supreme Court, however, came to the conclusion that the tortious act of the police officers was committed by them in the discharge of sovereign powers and the State was therefore, not liable for the damage caused. The Supreme Court observed in this connection:
'Now, the power to arrest a person, to search him, and to seize property found with him, are powers conferred on the specified officers by statute and in the last analysis, they are powers which can be properly characterised as sovereign powers; and so, there is no difficulty in holding that the act which gave rise to the present claim for damages has been committed by the employees of the respondent during the course of its employment but the employment in question being of the category which can claim the special characteristic of sovereign power, the claim cannot be sustained.'
Dealing with the general principle which determines the vicarious liability of the State in such cases, the Supreme Court referred to the aforesaid decision in (1868) 5 Bom CR. l and went on to say:
'Thus, it is clear that this case recognises a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants, and acts committed by public servants which are not referable to the delegation of any sovereign powers. If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is: was the tortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimately based on, the delegation of the sovereign powers of the State to such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not lie. On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie. The act of the public servant committed by him during the course his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose. This distinction which is clear and precise in law, is sometimes not Borne in mind in discussing questions of the State's liability ansing from tortious acts committed by public servants'.
9. Although the principle which determines the extent of the vicarious liability of the State for the torts committed by its servants is thus well settled, it is by no means easy to apply the principle to particular cases. Sovereign powers are vested in the State in order that it may discharge its sovereign functions. The ultimate sovereign function of the State which is relevant to the ease before us is that of defence of the country. For the discharge of that function one of the sovereign powers vested in the State is to maintain an army. Training of army personnel can be regarded as a part of the exercise of that sovereign power. The State would clearly not be liable for a tort committed by an army officer in the exercise of that sovereign power. The learned Government Pleader, however, wanted us to go much further than this. He argued that all acts which are necessary for the discharge of a sovereign function of the State and which are carried out by the concerned department of the State must be deemed to have been done in the exercise of the sovereign power delegated by the State. Thus, according to the learned Government Pleader the training of army personnel requires the maintenance of machines used in the training, that the maintenance of the machines requires that they should be kept in proper repair, that the work of repairing the machine requires its transport from the workshop to the military school, and that the transport of the machine is, therefore, a duty performed in the exercise of a sovereign power of the State. The learned Government Pleader argued that defendant No. l in the present case while transporting the Records Sound Ranging machine and other equipment from the workshop to the School of Artillery, was thus exercising a sovereign power delegated to him and the Union of India was, therefore, not liable for the tort committed in the course of that duty.
10. We are unable to agree that the immunity of the State for the torts committed by its servants can be extended in the manner suggested by the learned Government Pleader. In our view, there is a fallacy in the assumption that every act which is necessary for the discharge of a sovereign function and which is undertaken by the State involves an exercise of sovereign power. Many of these acts do not require to be carried out by the State through its servants. For instance, the army unit stationed at Deolali requires a regular supply of food. Foodgrains purchased for the army unit may be transported to the military camp in trucks belonging to a private agency. They may also be transported in military trucks driven by employees of the defence department. The fact that the army unit is maintained in the exercise of the State's sovereign power and the further fact that supply of food is essential for the maintenance of the army unit do not justify the conclusion that, if the food is transported to the army camp in military trucks instead of private trucks, the drivers of the military trucks exercise a sovereign power delegated to them by the State. To take another instance, the maintenance of military barracks is necessary for the maintenance of the army unit and the military barracks have to be kept in proper repair. If, instead of entrusting the work of repairing the barracks by private contractors, the State sets up a departmental unit for the purpose, the work done by the State employees in repairing the barracks cannot be said to have been done in the exercise of delegated sovereign power, even if the work of repairing the barracks is essential for the maintenance of the army unit. It appears to us that in deciding whether a particular act was done by a Government servant in discharge of a sovereign power delegated to him, the proper test is whether it was necessary for the State for the proper discharge of its sovereign function to have the act done through its own employee rather than through a private agency. In the case before us the transport of the Records Sound Ranging machine and other equipment from the workshop to the School of Artillery was necessary for the proper training of army personnel, but it was not necessary to transport the said equipment through a military truck driven by an employee of the defence department. The equipment could have been carried through a private carrier without any material detriment for the discharge by the State of its sovereign functioning of maintaining the army and training army personnel. It is easy to appreciate that in certain circumstances the transport of machines through military trucks can be regarded as an act done in the exercise of the State's sovereign power. The machines may have to be carried for the immediate use of an army engaged in active military duty. In such a case the transport of the machines through military trucks may be regarded as an exercise of the State's sovereign power. In the case before us the transport of the machine could have been arranged through a private carrier without any material detriment to the running of the School of Artillery. It must follow that defendant No. l was not exercising any delegated sovereign power of the State when he transported the equipment in a military truck and caused the fatal accident by his negligence.
11. What we have stated above appears to us to be in conformity with the approach adopted by the Supreme Court in Vidhyawati's case, : AIR1962SC933 . The car in that case was meant for the use of the Collector who must have been exercising some of the sovereign powers delegated to him by the State. The mere fact, however, that the car was meant for the Collector's use and was required to be repaired was not held to justify the conclusion that its driver was exercising a delegated sovereign power when he caused the accident. The State was held liable for the tort of the driver because at the time of the accident the car was not being used in connection with the exercise of any of the State's sovereign powers. On the other hand, in Kasturi Lal's case, : (1966)IILLJ583SC the State was held not liable for the negligence of the police officers in failing to take care of the property attached by them, because it was the statutory duty of the police officers to seize the attached property and the Supreme Court held that the performance of this statutory duty amounted to an exercise of sovereign power. It will be recalled that in that ease, with reference to the duties which are not assigned to public servants by virtue of any delegation of sovereign Power, the Supreme Court observed that the act of the public servant in such cases is 'an act of a servant who might have been employed by a private individual for the same purpose.' We have found in the present case that the act of defendant No.1 in transporting the equipment in the truck was an act of a servant who might have been employed by a private individual for the same purpose.
12. Considerable support to the view which we are inclined to take is found in the decision of a Full Bench of the Punjab High Court in Union of India V. Smt Jasso, . A reference to the Full Bench in that case was rendered necessary because of an earlier decision of a Division Bench of the Punjab High Court in Union of India v. Harbans Singh, . In the Division Bench case, an accident was caused by the negligence of a driver of a military truck when it was being used in supplying meals to military personnel on active duty. The Division Bench held that the Union of India was not liable for the negligence of the driver. In the subsequent Full Bench case, a fatal accident was caused by the negligence of a driver of a military truck which was carrying coal to Army General Headquarters in Simla, and the question referred to the Full Bench was whether the Union of India was liable to be sued in respect of the tort committed by the military driver. The Full Bench held that the tort was not committed during the exercise of a sovereign power and that the Union of India was liable to be sued in respect of the tort. After referring to the distinction between acts done in the exercise of sovereign power and other acts the Full Bench observed:-
'Applying this test to the present case it is difficult to see how it can possibly be held that such a routine task as the driving of a truck loaded with coal from some depot or store to the General Headquarters' building at Simla, Presumably for the purpose of heating the rooms, is something done in exercise of a sovereign power, since such a thing could obviously be done by a private person.'
Referring to the Division Bench decision mentioned above, the Full Bench said:
'It can be said regarding that case that the truck was being driven for supplying the needs of army personnel engaged on military duties which could not be performed by civilians.
It is at any rate safe to say that that case cannot be regarded as an authority for the general proposition that in no case can an action for damages be brought against the Government merely because the vehicle involved in the accident is an army truck driven by a military employee in the performance of some duty or other.'
13. A reference may also be made to a recent decision of the Delhi High Court in Smt. Satya Wati Devi v. Union of India, : (1969)IILLJ195Del . There an Air Force vehicle was engaged in carrying hockey and basket-ball teams to Indian Air Force Station, New Delhi, to play a match against a team of the Indian Air Force. After the match was over, the driver was going to park the vehicle when he caused a fatal accident by his negligence. On behalf of the Union of India it was argued before the Court that it was one of the functions of the Union to keep the army in proper shape and trim, that the hockey and basket-ball teams were carried by the vehicle for the physical exercise of Air Force personnel, and that the Union of India was therefore not liable for the tortious act of the driver of the vehicle. In rejecting the argument and holding that the Union of lndia was liable for the tort, the Court observed that carrying hockey and basket-ball teams to play a match can by no process of extension be termed as exercise of sovereign power.
14. The learned Government Pleader cited several precedents to show that the expression 'sovereign power' has a wide connotation. In Secretary of State for India v. A. Cockcraft ILR 39 Mad 351= AIR 1915 Mad 993 the plaintiff had sued the Secretary of State for India in Council for damages in respect of injuries sustained by him in a carriage accident which was alleged to have been due to the negligent stacking of gravel on a military road maintained by the Public Works Department. It was held that the provision and maintenance of roads especially a military Road is one of the functions of Government carried on in the exercise of its sovereign powers and is not an undertaking which might have been carried on by private persons and that the Secretary of State for India in Council was, therefore, not liable for the damages claimed by the plaintiff. In Secretary of State v. Shreegobindra Chaudhuri : AIR1932Cal834 the Calcutta High Court dealt with a suit against the Secretary of State for India for loss caused to the plaintiff's property by the alleged mismanagement of managers appointed by the Court of Wards. The Court held that the plaintiff had no cause of action against the Secretary of State for India. The Court observed that the jurisdiction exercised by the Court of Wards under the Court of Wards Act, 1879, was essentially an exercise of a sovereign power. In State of Andhra Pradesh v. Pinisetti Ankanna, : AIR1967AP41 the State of Andhra Pradesh was sued for damages alleged to have been caused by some illegal and malicious acts of certain officers engaged in the collection of land revenue. The Court held that the collection of land revenue is a sovereign function of the State and the State was therefore, not liable for the alleged tortious acts.
15. These cases, though they show that the State may have sovereign powers of various types, are not helpful in deciding whether the duty which was performed by defendant No. l in the present case at the time of the accident amounted to an exercise of a sovereign power delegated to him. We find that the duty which was being performed by defendant No. l could have been entrusted to a private individual without any material detriment to the State's function of running the School of Artillery at Deolali and that, therefore, defendant No. l was not acting in the exercise of any sovereign power when he committed the accident.
16. Towards the end of the hearing before us the learned Government Pleader referred to a judgment delivered by, Mr. Justice J. C. Shah (as His Lordship then was) on 29th September 1952 in O.S. Suit No. 2704 of 1948 (Bom). That was a suit filed by the plaintiff to recover damages from the Dominion of India for injuries caused by the negligent driving of a motor vehicle by one Swami who was a motor driver employed in the military department. On a plea in the nature of demurrer raised by the defendants, the learned Judge dealt with the preliminary issue whether, on the allegations contained in the plaint, any cause of action was made out against the Dominion of India. No evidence was led before the learned Judge on the nature of the duty in which the motor driver Swami was engaged at the time of the accident. The learned Judge held that no cause of action was made out against the Dominion of India and dismissed the suit. He said in his judgment:
'The maintenance of the military department is certainly not an undertaking which could be carried on by a private person, and the running of motor vehicles maintained by the military department being an activity which is incidental to the military department it must be held that even though there is no direct connection between the exercise of sovereign authority and running of a motor vehicle by an employee of the military department, the running of a motor vehicle belonging to the military department being for the performance of duties connected with the exercise of the sovereign authority, any injury caused to the plaintiff as a result of rash and negligent driving by an employee in that department will not sustain a suit for damages against the sovereign.
When this decision was given by the learned Judge, it was generally assumed, on a certain interpretation of the judgment in (1868) 5 Bom CR.1 that the functions of the Government can be classified into commercial and noncommercial functions and that the State is not liable for a tort committed by a servant in the course of his duty if the servant was employed in a non-commercial department. In view of the decision of the Supreme Court in Vidhyawati's case, : AIR1962SC933 and in view of the observations of the Supreme Court in Kasturi Lal's case. : (1966)IILLJ583SC this approach is no longer justified. It is dear from the judgments of the Supreme Court in these cases that the State is liable for a tort committed by an employee in any of its departments. In the course of his duty, if it is found that the duty which was being performed by the employee at the time of the tort was not in exercise of a sovereign power delegated to him. With very great respect, therefore, we are unable to accept the above decision of Mr. Justice J. C. Shah as laying down the correct law.
17. We will now deal with the second contention of the learned Government Pleader, viz., that the amount of damages allowed to the plaintiff is by the learned trial Judge is excessive. At the time of the accident the deceased Abdul Majeed was 31 years old. The age of his wife, plaintiff No. 1 was then about 27 years. They had two daughters and four sons and all of them were minors. The youngest child was of about six months and the eldest of about 11 years at the time of the accident. According to the evidence of the wife plaintiff No.1, Abdul Majeed was working in a cutlery shop of one Mohamed Shamsuddin. He was engaged in repairing petromax lamps, preparing tin boxes, fixing glass panels to windows and also in managing Mohamed Shamsuddin's shop. He was being paid Rs. 150 per month. Besides this Mohmed Shamsuddin used to give clothes worth Rs. 250 for him and for member of his family on each of the two Id festival days of the year. Mohmed Shamsuddin was examined on behalf of the plaintiffs and he corroborated the evidence of plaintiff No.1 with regard to the earnings of Abdul Majeed. He deposed that Abdul Majeed was working with him for the last 18 years, that at the beginning his pay was Rs.60 per month, it was raised to Rs. 100 per month, and it was further raised to Rs. 150 per month about five years before his death.
18. Witness Mohmed Shamsuddin did not keep accounts and did not pay income-tax or sales tax. Because of this, the learned trial Judge held, rather arbitrarily, that the monthly earning of the deceased Abdul Majeed was Rs. 100. We do not find any adequate reason to discard the evidence of plaintiff No. l and Mohmed Shamsuddin that Abdul Majeed was earning Rs. l50 per month at the time of his death and was given some clothes for himself and his family twice a year by his employer. A pay of Rupees 150 ner month does not appear to be unusual for the type of work he was doing. On his earnings he was able to maintain a family of eight persons. It is in the evidence of Mohamed Shamsuddin that after Abdul Majeed's death he engaged another servant named Usman Balekhat and the salary of that servant was Rupees 160 per month. It appears that in his police statement also Mohamed Shamsuddin had stated that he was paying to Abdul Majeed Rs. 150 per month.
19. The monthly earning of the deceased may thus be taken to be a little higher than Rs. 150. Since he was maintaining a family of eight persons, the amount which he could spare for his wife and six children may be taken to be Rs. 125 per month or Rs. 1500 per year. He was 31 years old and there is no evidence that he was in bad health or that he had unhealthy habits. It can be reasonably held that he had a life expectancy of a further period of 30 years The plaintiffs-his wife and minor children-were entirely dependant for their livelihood on his earnings.
20. In Municipal Corporation of Delhi V. Subhagwanti, : 3SCR649 the Supreme Court approved the following passage from the judgment of Lord Wright in Davies V. Powel Duffryn Associated Companies Ltd. 1942 AC 601 ae laying down the principle on which damages in cases of fatal accidents should be ascertained:
'It is a hard matter of pounds, shilling and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wage which the deceased was earning, the ascertainment of which to some extent may depend upon the regularity of his employment. Then there is an estimate o how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance that the widow might have again married and thus ceased to be dependant, and other like matters of speculation & doubt'. The deceased in that case was 28 years old at the time of his death and the Supreme Court approved the assessment of damages by capitalizing for a period of 15 years the monthly sum which was available for the subsistence and education of his dependants at the time of his death. In the present case the amount which was available for the maintenance and education of the plaintiffs from the earning of the deceased was, as held by us above, Rs. 125 per month or Rs. 1,500 per year. The damages of Rs. 30,000 granted by the trial Court would be equal to the capitalization of the above amount for a period of 20 years. The amount awarded may appear to be excessive, but in our opinion it is not. The pay of the deceased was being increased from time to time. It can be safely assumed that in the course of time his earnings would have been higher. Moreover, he died in a period of soaring prices. Like other employees, he would have received higher money wages as a result of a rise in the price level. The real value of the amount of Rs. 30,000 awarded by the trial Court is much less to-day than it was when the amount was claimed by the plaintiffs in the suit. Under the circumstances we are of the view that the damages awarded by the trial Court are proper and that reduction in that amount would not be justified.
21. In the result, the appeal fails and is dismissed with costs.
22. Appeal dismissed.