V. Ramaswami, J.
1. Second defendant, the Highways Department of South Arcot, represented by the District Collector of South Arcot, Cuddalore, is the appellant. The first defendant is the proprietor of a service bus bearing No. MDF 2015 and known as K. T. R. Bus service. The third defendant is the New India Asiatic Insurance Co., with whom the said bus had been insured. The plaintiffs had filed the suit against these defendants claiming damages in a sum of Rs. 25,000. on account of the death of their son Santhanagopalan in the accident that took place at or 5-30 a. m. on 14-11-1960, at 14/2 milestone in the Vridhachalam-Cuddalore road due to the culvert giving way and the bus plunging into the channel. The learned Sub-ordinate Judge of Cuddalore held that there was no negligence on the part of the first defendant or his driver and that, therefore, they were not liable for damages and in that view dismissed the suit as against the first and third defendants. But so far as the second defendant is concerned, he held that the very collapse of the bridge raised a presumption of negligence on the part of the second defendant and on the principle of res ipsa loquitur the second defendant was liable for damages., The learned Subordinate Judge ascertained and fixed the damages at Rs. 9100/-, and decreed the suit for that amount against the second defendant alone. The second defendant has preferred this appeal. The plaintiffs have preferred cross-objections in which they have claimed a further sum of Rs. 5,000/- towards damages. No appeal has been preferred against that part of the decree which dismissed the suit as against defendants 1 and 3.... ..... .... .... .... ..... .... ..... .....
(Discussion of evidence omitted).
2. The plaintiffs had not let in any positive evidence to show that the culvert had been defectively constructed or inefficiently maintained. The reports further disclose that the culvert was in a sound condition on the previous day and was adequate for all ordinary occasions. In these circumstances, though the breach of the culvert may not amount to an act of God, still it could not be that it was due to any want of reasonable and proper care on the part of the second defendant. The decision in Municipal Corporation. Delhi v. Sobhag Wanti. relied on by the trial court in support of the view that the principle of res ipsa loquitur will be applicable to the facts and circumstances of the present case is clearly distinguishable. In that case, which went to Supreme Court and reported in : 3SCR649 , it was found that having regard to the kind of mortar used, the normal life of the structure of the top storey of the building could be only 40 or 45 years but at the time when the building collapsed it was 80 years old and the collapse was due to thrust of the arches on the top portion and the mortar was deteriorated to such an extent that it was reduced to powder without any cementing properties. In the present case, the culvert was found to be in a sound condition on the previous day and there is no evidence of any defective construction or inefficiency in the maintenance. We, therefore, hold that the accident was not due to the negligence of the second defendant in maintaining the culvert.
3. Even if the principle of res ipsa loquitur is to be applied to the facts and circumstances of this case, in law the second defendant could not be held to be liable in tort for highway accidents. Article 300 of the Constitution provides that, subject to any provisions which may be made by any Act of the Legislature of a State, the Government of a State may sue or be sued in the name of the State in relation to its affairs in the like cases as the corresponding provinces might have sued or been sued if the constitution had not been enacted. Like Section 65 of the Government of India Act, 1858 or S. 32(2) of the Govt. of India Act, 1915, or S. 176(1) of the Government of India Act, 1935, Art. 300 of the Constitution also makes provision for suits against the Government in cases where such suits could have been filed against the East India Company had the case arisen prior to 1858, subject to any Act of the Legislature of the State.
4. It may be mentioned that there is no statute governing the liability to maintain and repair a highway though there are certain statutory provisions in respect of the roads vested in the Panchayats, Panchayat Unions, Municipalities, Corporations and the National Highway. It is not necessary for us to deal elaborately with all the cases which deal with the liability of the Government in tort where the distinction between sovereign and non-sovereign functions or Governmental or commercial functions are noticed. The latest decision of the Supreme Court on the general principle of State's liability in tort is found in M/s Kasturi Lal Raliaram Jain v. State of U. P. : (1966)IILLJ583SC , where it was held:--
'It is not difficult to realise the significance and importance of making such a distinction particularly at the present time when in pursuit of their welfare ideal, the Government of the States as well as the Government of India naturally and legitimately enter into many commercial and other undertakings and activities which have no relation with the traditional concept of Governmental activities in which the exercise of Sovereign power is involved. It is necessary to limit the area of these affairs of the State in relation to the exercise of sovereign power. so that if acts are committed by Government employees in relation to other activities which may be conveniently described as non-Governmental or non-sovereign, citizens who have a cause of action for damages should not be precluded from making their claim against the State. That is the basis on which the area of the State immunity against such claims must be limited.'
5. It follows, therefore, in respect of exercise of sovereign power, the State is not liable in tort.
6. In the Secy. of State v. Cockcraft, ILR 39 Mad 351 : AIR 1915 Mad 993, the plaintiff 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 or gravel on a road which was stated in the plaint to be a military road maintained by the Public Works Department of the Government. It was held in that case that the provision and maintenance of roads especially a military road is soon of the functions of the Government. carried on in the exercise of its sovereign powers and is not an undertaking which have been carried on by private persons and that, therefore, the State was not liable in tort. This decision was followed by the Andhra Pradesh High Court in Krishnamurthi v. State of Andhra Pradesh, : AIR1961AP283 . In this case the plaintiff was struck down by a road roller as a result of which his hand was crushed. At the time of the accident the road roller was being used for the maintenance of the highway and was returning from its duty to the place where it should be kept. It was held by a Division Bench that the making and maintenance of highways is a public purpose and the duty of the Government and not a commercial undertaking and that, therefore, no question of liability for the wrong done would attach to the Government. The decision in ILR 39 Mad 351 : AIR 1915 Mad 993 was sought to be distinguished on the ground that the road in question in that case was a military road and not a highway. The learned Judges observed that they failed to see how maintenance of highways which is the exclusive duty of the Government can in any manner be treated different in its nature from the maintenance of the military road; it was the nature of the duty in the discharge of which the act was committed that was material.
7. The learned counsel for the respondents, relying on the decisions in the Secretary of State for India, v. Hari Bhanji, ILR (1882) Mad 273, State of Rajastan v. Mst. Vidhyawati. : AIR1962SC933 and some other decisions, wanted to content that in the instant case the suit was maintainable for damages in tort. All these decisions were discussed in the decision of the Supreme Court in : (1966)IILLJ583SC , and as already stated, the Supreme Court has held that no action will lie against the State in respect of acts done by them in exercise of their sovereign function. It follows, therefore, that the suit by the plaintiffs claiming damages against the second defendant was not maintainable in law.
8. In view of the above findings, we allow the appeal, dismiss the cross-objections, set aside the judgment and decree of the court below and dismiss the suit,. But in the circumstances, there will be no order as to costs both in the appeal and in the cross-objections.
9. Appeal allowed and cross objections dismissed.