1. This is an appeal by the defendant, Union of India against the decree of the Additional First Civil Judge, First Class, Jabalpur, in Civil Suit No. 85-B of 1950. This judgment shall also dispose of the plaintiff's cross-objection.
2. The plaintiff-respondent, Bhagwatiprasad, was employed as a delivery-man by the Government Military Farm, Jabalpur. His duty was to supply milk to the customers. The milk used to be carried In a military truck. On 22nd November 1947, the plaintiff met with an accident when he was out on his duties.
The driver of the truck was Kartarsingh (D. W. 3). It is not disputed that the plaintiff had fallen down from the truck and came under its hind wheel. He was in the hospital under treatment from 22-11-1947 till 26-1-1948. The injuries resulted in (1) fracture both pubic rami left, (2) fracture medical malleolus left tibia and (3) dislocation of right sacro-illic joint.
The injury, according to Dr. Bishensingh (P. W. 2), has resulted in permanent disablement of the plaintiff to perform the duties as a delivery-man. The disability was found to be 40 per cent. See Ex. D-3.
3. The case of the plaintiff was that on the date of the incident, he was sitting in the front part of the truck by the side of the driver. When the truck was in motion, one of the milk cans, which were kept behind, got titled. Accordingly the truck was stopped and he got down to arrange the milk can.
After doing the needful, as he came back and was boarding the truck, the driver negligently put it in motion on account of which he fell down and came under the hind wheel He claimed damages to the extent of Rs. 8000/- for loss of earnings and Rs. 2000/- for bodily and mental suffering, total Rs. 10,000/-. The suit was allowed by the lower Court to the extent of Rs. 8200/-, made up of Rs. 8000/.- for loss of earnings and Rs. 200/-on account of bodily and mental suffering. The plaintiff has filed cross-objection claiming Rs. 1300/- more as damages on the latter Count viz., bodily and mental suffering.
4. The liability of the Union of India was resisted on the doctrine of State immunity. It was urged that the military farm was run by the Government in its sovereign rights and accordingly the Union of India could not be made liable for the negligence of its servants. The liability of Government for the negligence of its servants was first considered in P. and O. Steam Navigation Co. v. Secy. of State, 5 Bom HCR App 1 (A).
That was a case of tort committed in the conduct of business in which it was held that the Secretary of State in Council could be sued. Sir Barnes Peacock, however, also dealt with the question of the liability of the Government where an act is done by its servants in the course of the exercise of powers which could not lawfully be exercised, save by the sovereign.
The views which he expressed on this question were ultimately approved of by the Judicial Committee in Secy. of State v. Moment, ILR 40 Cal 391 (B). Summing up the law on the subject, Rankin C. J., in Secy. of State v.' Shreegobind Choudhuri. TLR 59 Cal 1239: (AIR 1932 Cal 824)' (C), observed:
'This doubt as to whether the Secretary of State for India in Council can ever be sued in respect of tort was laid at rest finally in the following year 1912 by the judgment of the Judicial Committee delivered by Lord Haldane in the case of ILR 40 Cal 391 (PC) (E).
There the. Government of Burma had an ordinary dispute with an individual about the ownership of certain landed property. It was finally decided that the property belonged to the individual,and the suit was an ordinary common law suit intort for damages for wrongfully interfering with, the plaintiff's property. The local Act had purported to say that all claims to any right over lands as against Government should be brought in the revenue court and not civil court.
The Privy Council held that that was ultra vires of the legislative authority of the local legislature and they held that a suit for damages for wrongful interference with the plaintiff's property would have lain against the East India Company for the reason explained by Sir Barnes Peacock in the P. and O. case (A).
Therefore, the P. and O. case (A), was finally affirmed in so far as it held that it was possible to sue the Government for tort if it was in connection with a private undertaking or undertaking not in exercise of sovereign powers.'
It will thus appear that a suit lies against the Union of India for torts committed by its servants in connection with a private undertaking or an undertaking not in exercise of sovereign powers: See District Board, Bhagalpur v. Province of Bihar, AIR 1954 Pat 529 (D), in which the entire case law has been summarised.
5. There appears to us no doubt that the farm run by the Government was not an undertaking which can be referred only to its sovereign powers. It was an undertaking which any private person could take to, and is indeed in the nature of a business or commercial concern. It appears from the evidence of plaintiff as P. W. 1 that milk was being supplied on payment of price at two rates, one with the other without concession. Similarly, it appears from his evidence that butter was also sold through him. It is, therefore, immaterial whether or not the customers belonged exclusively to military organisation, but it appears that the rate without concession was intended for persons who were not members of the military service. We are not, therefore, inclined to accept the contention that the injury resulted from the undertaking of the Government in exercise of its soverign powers.
6. We are not concerned in this case with an act of a Government servant which wast performed in exercise of any statutory powers. Therefore, we need not consider the law on the subject. The case is governed by the ordinary-law of the liability of a master for the tort committed by his servant. We would, therefore, consider the case on that basis.
7. It was contended that the plaintiff had failed to prove that the injury sustained by him was caused by the negligence of the driver. The incident had occurred in the early hours of the morning, at about 4 O'clock, when it was cold and none could be present to witness the occurrence.
In the circumstances of the case, therefore, there could be no person to testify to the incident except the plaintiff and the driver. These Persons have given their respective versions. The question is which of' them is reliable.
8. The version of the plaintiff is that on the date of the incident he had taken his normal seat by the side of the driver. On the way. he heard the noise of tilting of one of the milk cans. Accordingly he got the truck stopped and when, after going behind and setting the can in order, he returned and was attempting to board the vehicle, the driver suddenly moved it on account of which he fell down and came under the hind wheel of the truck.
The version of the driver, Kartarsingh (D. W. 3), is that the plaintiff was sitting in the rear of the truck where the milk cans were kept; that he stopped the truck on the plaintiff's direction and then drove the vehicle ahead; and that when he did not hear the plaintiff's response to his call at the next stop, he returned and saw him lying on the ground.
The plaintiff could come under the hind wheel If he had a fall in the manner stated by him. If he had fallen while sitting in the rear of the truck, as stated by the driver, it was not possible that he could come under the hind wheel.
9. In this connection, the suggestion of Kartarsingh (D. W. 3) that one sitting in the back side of the truck could come to the front seat without alighting from the vehicle doi's not appear to be correct. A military truck of the usual pattern was produced before the lower Court.
It would appear from its photographs that the front part of the vehicle is entirely separate and is closed from behind. It appears from the plaintiff's testimony that there is another type of vehicle, which was used on the date of the incident, in which the back part is attached with the front portion, but in that model also, as he has said, the back side of the front portion is closed except for a slit through which the driver is given directions.
In either case, therefore, the plaintiff could not have attempted to go to the front seat from inside the vehicle and this was also not the version of Kartarsingh (D. W. 3).
10. An attempt was made to prove that the plaintiff had not taken the front seat in the vehicle as deposed to by him. In this connection, Kamal Kumar Bose (D. W. 1), a clerk of the Dairy Farm, said that the delivery-man was not ordered to sit with the driver, He however, admitted that there was no written order to that effect.
Dr. Bishensingh (P. W. 2) said, on the other hand, that he always saw the delivery-man sitting with the driver in front. This appears to have been his usual seat as, with the milk cans packed on the floor behind, he could not easily be accommodated in the rear of the vehicle. The deliveryman was also likely to be in charge of the papers showing the stations where the milk was to be delivered on any particular day. We, therefore see no reason to doubt the plaintiff's statement that he used to sit in front as he was the person to give directions to the driver where to stop the truck.
11. For the above reasons, we see no reason to doubt the plaintiff's version of the incident. The driver was apparently not careful in the discharge of his duties when he started the truck before the plaintiff could take his seat. The accident, therefore, was caused through his negligence. It was pleaded in this connection-that the plaintiff was guilty of contributory negligence inasmuch as, firstly he took his seat in front contrary to rules and secondly he did not properly place the milk cans on account of which one of them got tilted.
We have already disposed of the first point above. As regards the second point, there is no proof that the milk can had tilted through the plaintiff's negligence in arranging it and not on account of a jerk of the truck. Even if this was 30, the matter was too remotely connected with the incident. In these circumstances, the Union of India would be liable as the injury sustained by the plaintiff was caused by its servant's negligence in the course of his employment.
12. This brings us to the quantum ofdamages. The lower Court has awarded damages on account of (i) loss of prospective employment and (ii) bodily and mental pain. The plaintiff was earning per mensem Rs. 28/- on account of pay, Rs. 16/- on account of dearness allowance and Rs. 6/12/- on account of grain compensation allowance, total Rs. 50/12/-.
He was then 30 years old and was, according to the lower Court, expected to serve till the age of 60. On this basis, the Court below thought that the amount of Rs. 8000/- on account of loss of employment for 30 years is moderate. On the second count, the lower court allowed only Rs. 200/- on account of the fact that he was treated at the defendant's expense.
13. Damages, in cases of tort, are allowed as compensation and not by way of restoration or lestitution. Thus, for instance, the measure of damages in a case of cutting of trench on land is the diminished value of the land and not the cost of restoring it to its original position. Jones v. Gooday, (1841) 8 M and W 146 (E).
Applying this principle to the case of bodily injury, the plaintiff would be entitled only to reasonable compensation for the loss of future employment and not an amount on the basis of an absolute mathematical calculation without without taking into consideration the probable fluctuations in life. For this purpose, the compensation that is allowed in accident cases under the Workmen's Compensation Act, 1923, may serve as a useful guide.
14. In the instant cause, the plaintiff's basic pay was only 28/- p. m. His service was also temporary as has been deposed to by Azan and (D. W. 2), Head Clerk of the Dairy Farm. He had also lost only 40 p. c. physical capacity on account of the injury. Even on the basis of Rs. 50/12/- as the plaintiff's monthly wages, the amount of compensation, under the Workmen's Compensation Act, for permanent disablement of 100 p. c. would ba Rs. 2520/-; it would be Rs. 1008/- for 40 p. c. total disablement.
We think that an award of Rs. 2000/- for loss or future emoluments would be a fair compensation on the basis that the disablement is permanent for any gainsome undertaking.
15. As regards physical pain and mental suffering, the lower Court has erred in allowing only a nominal compensation on account of the fact that the plaintiff had not to spend for treatment. He was in acute suffering from 22-11-1947 to 26-1-1948 during treatment. Even after discharge from the hospital, he is unable to walk without pain and suoport which is likely to be his permanent condition.
The amount of Rs. 2000/- claimed by him, therefore, appears to be reasonable. The cross-objection accordingly succeeds and is allowed. The total amount of damages is thus assessed at Rs 4000/-.
16. The appeal is partly allowed. The decree of the lower Court is modified by substituting Rs. 4000/- in place of Rs. 8200/- and it is directed that the plaintiff would be liable to pay the court-fee or Rs. 6000/- and the defendant on Rs. 4000/-. Defendant shall be liable to pay plaintiff's costs in the lower Court corresponding to success, and the rest of t^e costs shall be borne as incurred In view of partial success and failure in this Court parties shall bear their own costs of the appeal and of the cross-objection.