1. This appeal arises out of an award passed by the Motor Accidents Claims Tribunal, Madurai, in M. A. C. O. P. No. 160 of 1971 on its file.
2. On 2nd December, 1970 at about 3. 45 P. M. one Naina Mohammed was going in his motor cycle, M. D. A. 7826 from east to west in Tamil Sangam Road, Madurai Town, with three boys on the pillion of the motor cycle. At that stage, the Madras Fire Service Ambulance van, M. S. M. 2103 driven by one Diraviam Paul and owned by the State of Tamil Nadu through the Director of Fire Services, came in the opposite direction and it hit against the motor cycle violently, with the result all the riders in the motor cycle were thrown away resulting in serious injuries. The injuries sustained by Naina Mohammed proved fatal later on at 3 A. M, on 3rd December, 1970 when he was carried to the hospital for treatment. Alleging that the driver of the van drove it in a rash and negligent manner and that the accident was solely due to his driving the vehicle on the wrong side of the road, the widow and the children of the deceased Naina Mohammed filed the claim petition, claiming a compensation of Rs. 60,000.
3. The respondents in the claim petition, the driver of the van as well as the State of Madras, resisted the claim contending that the van was driven in a slow and cautious manner on the correct side of the road, that the deceased Naina Mohammed came in a motor cycle at a high speed and on the wrong side of the road, that he drove tae motor cycle in a reckless, negligent and careless manner, and dashed against the van, that therefore, the accident cannot be taken to be due to the fault of the driver of the van, and that therefore the respondents are not liable to pay any compensation to the claimants.
4. The Tribunal, on these rival contentions, took up the following two points for consideration:
1. Whether the accident was due to the rash and negligent driving of the Ambulance Van, M. S. M. 2103 by 1st respondent?
2. Whether the petitioners are entitled to claim any damages from the respondents, and if so, to what amount?
5. Before the Tribunal, P. W. 3 an eye witness was examined. He is having a workshop in Tamil Sangam Road, very near the place of accident. He has deposed that on the day of occurrence, Naina Mohammed came in a motor cycle with three boys on the pillion at a slow speed, that at that time, the ambulance van came very fast from the opposite direction and dashed against the motor cycle, that the actual impact was on the southern side of the road, about six or seven feet from the southern platform and that he rushed to the place of accident immediately. The evidence of P. W. 3 has not been effectively challenged in cross-examination. No motive also has been alleged against P. W. 3 as to why he should give evidence falsely in favour of the claimants and against the respondents. He is an independent witness and he has no axe to grind in this matter. The evidence of P. W. 3, is also corroborated by the other factors, such as the situation of the vehicle at the time of the accident i. e., on the southern side of the road and the speed with which the van was driven. The Tribunal therefore held that the accident was due to the rash and negligent driving of the van.
6. On the question of compensation, the Tribunal held that the deceased was earning a sum of Rs. 300 per month from his business and that he would have contributed a sum of Rs. 130 per month to his family. Thus, the annual dependency was taken to be Rs. 1,800. Then taking into account the age of the deceased at the time of the accident, which was 48 years, the loss of earnings for a period of 12 years was determined at Rs. 21,600. The Tribunal therefore, fixed the said sum as a fair and reasonable compensation for the less of pecuniary benefits. Apart from this, the Tribunal awarded a sum of Rs. 1,400 as compensation for pain and suffering. Thus, the Tribunal in all awarded a sum of Rs. 23,000 as compensation.
7. This award of the Tribunal has been challenged in this appeal filed by the State, both on merits as well as on the quantum of compensation.
8. Though the learned Government Pleader vehemently argued that the van driver was not at all rash and negligent, on the facts and circumstances proved in this case, we find that there is enough material on record to establish his rashness and negligence. As pointed out by the Tribunal, on the facts of this case, the doctrine of res ipsa loquitur could easily be invoked. Apart from the said doctrine, there is the evidence of the eye witness, P. W. 3, which is categoric that the van driver was driving the vehicle rashly and it is because of his rashness and negligence, the accident took place. We do not therefore see any justification for interference with the findings of the Tribunal that the accident was due to the rash and negligent driving of the Ambulance Van by its driver.
9. The learned Government Pleader, has however raised a legal plea that having regard to the purpose for which the vehicle had been used at the time of the accident, the State is entitled to claim immunity from payment of compensation, for the reason that the vehicle has been used in the course of the exercise of a sovereign function. Though such a defence was not taken before the Tribunal and the Tribunal had no opportunity to deal with such a defence, we allowed the learned counsel to substantiate that legal plea. According to the learned counsel, the van, which was involved in the accident in this case though belonged to the Fire Service Department, has been permitted by the State to be used for rescuing human beings and animals, trapped under collapsed buildings and structures, and for carrying patients to and from the hospital etc. The learned counsel has referred to Part I of the Tamil Nadu Fire Service Manual to show that though the Ambulance is primarily intended to be used at fires and at other emergencies, it is also made available to the public for removal of patients from or to hospitals and dispensaries, Government and private, provided it is within the State and that it can also be used for removing patients from one place to another on production of a Doctor's certificate that an ambulance is necessary for that purpose. The learned counsel also referred to the Government Order, in G. O. Ms. No. 2802, Home, dated 4th October, 1967, authorising the separation of Fire Service branch from the Police Department, and vesting the powers to maintain the Ambulance Vans with the Fire Service Department.
10. It is in evidence in this case that the Fire Service Van was being used for carrying a person, who had been stabbed for emergent treatment to the Erskine Hospital, Madurai. The contention of the learned Government Pleader that the Fire Service Ambulance Van has been authorised to carry such victims for treatment to the hospital free of charge and that the Fire Service personnel are also bound to attend to the work of carrying victims to and from the hospital in case of emergencies. But still the question is, whether such a purpose, for which the van was used, has been done in the course of exercise of a sovereign function by the driver of the van.
11. The (earned Government Pleader refers to the decision of the Supreme Court in Kasturi Lal v. State of Uttar Pradesh : (1966)IILLJ583SC , the decisions of the Madras High Court in The Highways Department of South Arcot v. Vedanthachariar : AIR1972Mad148 and in Thangarajan v. Union of India : AIR1975Mad32 and also to a decision of the Punjab and Haryana High Court in Bakshi Amrik Singh v. Union of India (1974) ACJ P&H105; as supporting his stand. In the first case above referred to, the Supreme Court while dealing with a case of seizure of gold and silver suspected to have been stolen, under the provisions of Uttar Pradesh Police Regulations and of the disposal of the property seized, has found that after the seizure, the gold and silver seized were entrusted to certain police personnel, who secreted the same and became scarce. Ultimately, when the person from whom the gold and silver had been seized claimed the return of the articles seized a plea was taken that the articles are not available for return. At that stage, a charge of negligence was made as against the police officers, who seized the gold and silver, in entrusting the same after seizure to a person without properly ensuring for their safe custody, and they were asked to make good the loss for the negligent performance of their duties. It is in those circumstances, the State of Uttar Pradesh maintaining the police force raised the plea that the State is not liable for the tortious acts of its servants committed in exercise of the statutory functions delegated to them by the Government. Dealing with this plea of immunity, the Supreme Court has pointed out that the act of negligence was committed by the police officers while dealing with the property of the person arrested in that case, which they had seized in exercise of their statutory powers that 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 that in that last analysis, they are powers which can be properly characterised as sovereign powers; and so the act which gave rise to the claim for damages in that case had been committed by the employee of the State in the course of its employment but that the employment in question being of the category which can claim the special characteristic of sovereign power, the claim could not be sustained.
The Supreme Court referred to with approval the observations of Peacock, CJ., in Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India-in-Council (1868) 5 Bom HCR App. A-1 which has been taken to be a leading authority on the point. The other decisions referred to above, merely follow the principle laid down in Kasturi Lal v. State of Uttar Pradesh : (1966)IILLJ583SC , and therefore, it is unnecessary to deal with them separately.
12. However, it is seen the Supreme Court has dealt with this question once again in Shyam Sundar v. State of Rajasthan : 3SCR549 . In that case, the question was whether the State could claim immunity in respect of an accident in which a truck engaged in famine relief work was involved. It was contended that the famine work is a sovereign function of the State and therefore it is entitled to plead immunity in respect of the accident caused by the rash and negligent driving of the truck. In support of the plea of immunity, reliance was placed before the Supreme Court on the decision in Kasturi Lal v. State of Uttar Pradesh : (1966)IILLJ583SC . After considering the principle laid down in the earlier case, the Supreme Court held that the liability of the State for a tort committed by its servants in the course of exercise of their duties, would depend upon whether the employment was of the character, which claimed the special characteristics of sovereign power, that the immunity of the State for injuries on its citizens committed in the exercise of what are called the sovereign functions is based on the theory that the King can do no wrong, but that in modern times, the said theory cannot have any moral justification. The learned Judges observed that:
Today, hardly anyone agrees that the stated ground for exempting the sovereign from suit is either logical or practical. We do not also think it necessary to consider whether there is any rational dividing line between the so-called sovereign and proprietary or commercial functions for determining the liability of the State.
13. However, without going into the correctness or otherwise of the decision rendered by it in Kasturi Lal v. State of Uttar Pradesh : (1966)IILLJ583SC , it went into the question as to whether the famine relief work is of the category, which would claim the special characteristics of sovereign powers and found that it is a work, which can be and is being undertaken by private individuals as well and there is nothing peculiar about it, so that it might be said that the State alone can legitimately undertake the work. Thus, one of the tests laid down by the Supreme Court in this case is that if an act, which is alleged to have been carried on by the State in exercise of the sovereign functions, could be carried on normally by private individuals as well, then the act cannot be said to have been done in this course of exercise of sovereign functions.
14. This is the view taken in some of the earlier decisions also. The earliest one is a decision in Union of India v. Smt. Jasso . In this case coal was carried by a military truck from a place to the Army Unit Headquarters building at Simla driven by an army driver. On the way, the vehicle met with an accident and the accident resulted in the death of one Rakha Ram. His dependants instituted a suit for recovery of Rs. 20,000 against the Union of India, alleging that the death of the deceased was due to the rash and negligent driving of the military vehicle by its driver and that therefore, the Union of India was liable to pay the damages caused by the rashness and negligence by its employee. The Union of India raised the plea that the military truck was used in the course of the exercise of the sovereign functions and therefore, the State is entitled to claim immunity in respect of the said accident caused by the negligence of the driver of the vehicle. The Full Bench of that Court took the view that there is a great and clear distinction between acts done in exercise of what are usually called sovereign powers and acts done in the conduct of undertakings which may as well be carried on by private individuals, that applying that test, the transport of coal from some depot or store to the Headquarters building of the Army at Simla could be undertaken even by a contractor or by a private individual and that the mere fact that the Government had chosen to undertake the transport by its army truck and the driver of the vehicle was a military employee, cannot make any difference to the liability of the Government for damages for the tortious acts of the driver. In this view, the Full Bench rejected the plea based on the State's immunity for the acts done in the course of exercise of sovereign functions by an employee of the Government. The same view was taken in the decision in Satya Wati v Union of India : AIR1969Bom13 and in Union of India v. Sugrabai : AIR1969Bom13 .
15. In the decision in Roop Lal v. Union of India AIR 1979 J&K; 6 the military jawans in the employment of the Union of India lifted the driftwood belonging to a third party and carried it through military vehicles for the purposes of camp fire and the fuel was used by them for their requirements. The question was whether the wrongful act dons by the military jawans in lifting the firewood belonging to a third party for using them for their purposes, will be protected by the immunity based on sovereign functions. The High Court of Jammu and Kashmir found that the carrying of the driftwood by the jawans is not an act done in the course of their performance of military duties or for the purpose of any sovereign function and therefore no immunity can be claimed in respect of such a tortious act.
16. In Union of India v. Savita Sharma AIR 1979 J&K; 6 a military truck was proceeding to the railway station for picking up the jawans. At that stage, the vehicle met with an accident and collided with a private tempo resulting in the occupant of the tempo being injured. When the injured person filed a claim for damages against the Government, the Union of India took up the plea that the truck was being utilised for the purpose of transporting jawans and therefore, it should be taken that the driving of such a vehicle was in the course of performance of delegated sovereign functions. Rejecting that plea, the Court held that the jawans could have been transported even in a private bus or in a truck or in any other vehicle and that even if the driver is taken to have performed a statutory duty in transporting the jawans from the railway station to the army unit headquarters, that alone cannot entitle the Union of India, in whose employment the driver was, to claim that the act was performed in exercise of the delegated sovereign powers, it was pointed out by the Court that there is no rule or law that the jawans should be transported only in military trucks and that even if there could be any such rule or law, that would make hardly any difference as the act of transporting jawans from one place to another in the ultimate analysis could be performed by private individuals also in their vehicles and that therefore, only if it was shown that such an act could not have been performed by private individuals, the said act can be said to be performed in exercise, of delegated sovereign powers.
17. Though the learned counsel on either side referred to a large number of decisions, dealing generally with the State's immunity in respect of its sovereign functions, we do not think it necessary to deal with them in detail, as the Supreme Court has clearly laid down the principle of law relating to the said plea of immunity in Kasturi Lal v. State of Uttar Pradesh (1965) MLJ (Crl) 571 : (1965) 2 SCJ 318; AIR1985 SC1039. As we are of the view that on the facts of this case, the transporting of the patient to the hospital can be done even by private individuals also and that when it is not the case of the State that the transport of the patients can only be done by the Government in their vehicles, it cannot be said that the work of transporting a person, who had been stabbed, to the hospital is a sovereign function. As a welfare State it may undertake many ameliorative measures, but that cannot make every such work undertaken by the State a sovereign function. As pointed out in the various decisions referred to above, if an act is to be taken as an act done in the course of the exercise of a sovereign function, it should be one, which cannot be expected to be performed by any private individual but which the State alone is authorised to perform. In this case, it cannot be said that the transport of the person who had been stabbed, in the van to the hospital is a sovereign function at all. For one thing there is no statutory rule or Government order imposing on the State a duty of carrying patients from one place to another in Government vehicles, and preventing others doing those acts. Having regard to these circumstances, we are not inclined to uphold the legal plea raised by the learned Government Pleader that the State is immune from the liability in respect of the accident caused by the driver of the Fire Service Ambulance van, by his rash and negligent driving.
18. Now coming to the question of compensation, the learned Government Pleader points out that after computing the loss or pecuniary benefit at Rs. 21,600 for 12 years, it has not given any reduction in allowance for the benefit of lump sum payment. But it is seen that the deceased was aged 48 years at the time of the accident and the Tribunal has adopted 12 years as the years of purchase as the basis. Once the 12 years purchase is taken as the basis, there is no question of any deduction being made for lump sum payment, it is only when the pecuniary loss is determined on the basis of the longevity of the deceased, then any deduction is possible for lump sum payment. In this view, we do not see any justification for interfering with the quantum of compensation fixed by the Tribunal.
19. The result is, the appeal fails and is dismissed, fiat there will be no order as to costs.