The Home Secretary, Government of India and Others vs Surendra Singh

B.R. Dubey, J.—This is an appeal against the Award and the decree passed by the Motor Accidents Claims Tribunal, Indoor in Motor Accident Claim Cases Nos. 21 of 1970 and 127 of 1970 whereby compensation amounting to Rs. 2,000/- with costs and interest was allowed to the Respondent against the Appellants.

It is not disputed that the Appellant No. 4 was driving the vehicle M.P.O. 2188 belonging to C.S.W.T. run by the Central Government. The said vehicle dashed against the Respondent on 20.12.1969 at about 3.30 a.m. while he was going on a bicycle on account of which he was severely injured. The Respondent was taken to the M.Y. Hospital, Indore where he took treatment as indoor patient till 28.12.1969. The Respondent made a claim for Rs. 15,000/- by way of compensation against the Appellants on the ground that the accident was caused on account of rash and negligent driving of the vehicle by Appellant No. 4. The claim was contested by the Appellants on the ground that the Respondent himself was at fault as he was driving the bicycle in the middle of the road when the Appellant No. 4 in order to save the Respondent took the vehicle to further right, the Respondent turned that way and got himself dashed against the bumper of the vehicle which was moving very slowly and thereby sustained injuries. It was also pleaded that the Respondent''s claim was not maintainable because the vehicle was being driven by Appellant No. 4 in performance of the sovereign function of the Government of India.

The Motor Accidents Claims Tribunal came to the finding that the accident occurred due to rash and negligent driving of the vehicle by non-Applicant No. 4 and that the wrongful act of Appellant No. 4 could not be protected on the ground that he was driving the vehicle in performance of the sovereign functions of the Government of India. The Claims Tribunal assessed the compensation to a sum of Rs. 2,000/- and gave the Award with respect to the said sum against the Appellants. They have therefore come to this Court in appeal.

The evidence of the Respondent Surendra Singh (P.W. 6) corroborated by Nemichand (P.W. 1) clearly establishes the fact that the Appellant No. 4 at the relevant time was driving the truck in a high speed and that the cyclist i.e. Respondent Surendra Singh, was knocked down while he was going on the left side. The Tribunal has rightly discarded the evidence of Appellant No. 4 Hari Singh as well as that of Sadho Singh (D.W. 2) and Raj Kishore (D.W. 3) not only on the ground that they were partisan witnesses but because their testimony did not appear to be natural. On the evidence, it is clear that Appellant No. 4 could have avoided the accident had he driven the truck with due diligence and care. I, therefore, concur with the finding of the Claims Tribunal that the accident resulted on account of the rash and neligent driving of the vehicle by Appellant No. 4.

Now the question for consideration is whether Appellant Nos. 1 to 3 are vicariously liable for the tortious act committed by their servant Appellant No. 4 Hari Singh. In Kastun Lal Ralia Ram Jain v. The State of Uttar Pradesh AIR 1956 S.C. 1039, it was held that the Government is immune from the liability to pay damages arising out the tortious act committed by their servants in course of employment and in exercise of statutory functions delegated to them by the Government but the said decision is distinguishable on facts. In that case the Plaintiff was arrested by the police officer in Uttar Pradesh on suspicion of possessing stolen property and on search of his person a large quantity of gold was seized under the provisions of the Code of Criminal Procedure. Ultimately, the Plaintiff was released but the gold seized from him was not returned as the Head Constable incharge of the Malkhana had absconded with the valuable property, including the gold which was seized from the Plaintiff. The Plaintiff had filed a suit against the Respondent either for the return of the gold or in the alternative for its value on account of the loss caused to him. The evidence in that case revealed that the police officers had not followed the provisions of police regulations in taking care of the gold seized from the Plaintiff. It was therefore held that the act of negligence was committed by the police officers while dealing with the property of the Plaintiff which was seized in exercise of the statutory powers which could be characterised as sovereign powers and hence the claim of the Plaintiff was not maintainable against the State.

The decision in State of Madhya Pradesh Vs. Saheb Dattamal and Others, relied by the learned Government Advocate appearing on behalf of the Appellants would not help in absolving them for their liability for the tortious act of Appellant No. 4. In this decision it was held by this Court as under:

The simplest test to determine whether an act was in the nature of sovereign functions of the State was whether it was a function which a private individual or association could lawfully undertake. For example when a State operated a transport service of a telephone exchange or a mining or commercial company, it functioned in a sphere in which it was quite obvious that a private individual or company could also function. In discharging such a function the State could not be said to be exercising its sovereign powers. But where, on the other hand, it arranged for defence services or controlled a riot, or investigated crimes and levied taxes the functions were such which a State alone could discharge and not any private individual or body. In discharging such functions, the State would be said to be exercising its sovereign powers.

The decision in Union of India Vs. Sugrabai and Others, of the Bombay High Court directly applies to the facts of this case. In that case a military truck knocked down a cyclist which resulted in his death. The suit for compensation was filed by his dependents. The truck was carrying a machine meant for giving training to the military officers. It was contested by the State on the ground inter-alia that it was immune from liability because the alleged tortious act was committed in exercise of the sovereign powers of the State. That contention was repelled by the Bombay High Court. It was held as under:

The immunity could not be extended to every act which was necessary for the discharge of sovereign functions. It would be wrong to say that every such act involved the exercise of sovereign power. Many of these acts need not be carried out by the State through its own servants. In deciding whether a particular act was done by a government servant in discharge of a sovereign power delegated to him, the proper test was whether it was necessary for the State for the proper discharge of its sovereign functions to have the act done through its own employees rather than through a private agency. If it was necessary, the act would be considered to have been done in the exercise of the sovereign power of the State, otherwise not.

In the present case, the transport of the machine could have been arranged through a private agency without any material deteriment to the discharge by the State of its sovereign function of maintaining the army and training army personnel. Therefore it could not be said that the driver was acting in the exercise of any delegated sovereign powers of the State. The State was liable to pay compensation.

In Union of India (UOI) Vs. Varadambal and Others the Madras High Court had also examined the question as regards the vicarious liability of the State. In a case where a military lorry met with an accident while it was going to a railway station for picking up a military officer and it was held that the vehicle was not being used for any sovereign function and therefoye the State could not claim immunity from paying compensation.

In the instant case, the accident took place when the Appellant No. 4 was carrying camp trainees from the Railway Station to the G.S.W.T. Centre Bijasan in the truck. The said act in carrying the trainees as passengers could have been performed by any private person as well. Under these circumstances, it cannot be said that the Appellant No. 4 was performing the sovereign functions of the Government of India at the time when he caused the accident on account of rash and negligent driving. Therefore the Union Government or its Officers i.e. Appellant Nos. 1 to 3 cannot claim immunity from the liability to damages for the tortious act of Appellant No. 4.

Looking to the injuries sustained by the Respondent the amount of Rs. 2,000/- awarded by way of compensation does not seem to be excessive and hence no interference is called for by this Court in the Award and decree passed by the Motor Accidents Claims Tribunal, Indore.

For the above reasons, this appeal has got no force and is hereby dismissed with costs. Counsel''s fee be tested as per schedule, if certified.