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TMI Blog1962 (2) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... The first defendant Lokumal, was a temporary employee of the appellant State, as a motor driver on probation. In February, 1952, he was employed as the driver of a Government jeep car, registered as No. RUM 49, under the Collector of Udaipur. The car had been sent to a workshop for necessary repairs. After repairs had been carried out, the first defendant, while driving the car back along a public road, in the evening of February 11, 1952, knocked down one Jagdishlal, who was walking on the footpath by the said of the public road in Udaipur city, causing him multiple injuries, including fractures of the skull and backbone, resulting in his death three days later, in the hospital where he had been removed for treatment. The plaintiffs who are Jagdishlal's widow and a minor daughter, aged three years, through her mother as next friend sued the said Lokumal and the State of Rajasthan for damages for the tort aforesaid. They claimed the compensation of Rs. 25,000/- from both the defendants. The first defendant remained ex-parte. The suit was contested only by the second defendant on a number of issues. But in view of the fact that both the Courts below have agreed in finding that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances wholly dissociated from the exercise of sovereign powers. The Trial Court took the view that as the car was being maintained for the use of the Collector, in the discharge of his official duties, that circumstance alone was sufficient to take the case out of the category of cases where vicarious liability of the employer could arise, even though the car was not being use at the time of the occurrence for any purposes of the State. The Trial Court accepted the contention of the State of Rajasthan, on reaching the conclusion, after a discussion of the legal position, in these words : Therefore it follows that the constitution and control of the Collector's office at the Udaipur is an instance of exercise of sovereign powers. 4. On appeal, the High Court disagreed with the Trial Court on the legal issue. Its finding on this issue is in these words : In our opinion, the State is in no better position in so far as it supplies cars and keeps drivers for its civil service. It may be clarified that we are not here considering the case of drivers employed by the State for driving vehicles which are utilised for military or public service. 5. In the result, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... menced, in which the Government of a State may figure as plaintiff or as defendant, and that the Article is not concerned with defining the extent of liability of a State. In other words, it was contended that Art. 300 was irrelevant for determining the vicarious liability of the defendant State in this case, and that there was nothing in this Article definitive of that liability. In our opinion, it is not correct to argue that the provisions of Art. 300 are wholly out of the way for determining the liability of appellant State. It is true that arts. 294 and 295 deal with rights to property, assets, liabilities and obligations of the erstwhile Governors' Provinces or of the Indian States (specified in Part B of the First Schedule). But Arts. 294 and 295 are primarily concerned with the devolution of those rights, assets and liabilities, and generally speaking, provide for the succession of a State in respect of the rights and liabilities of an Indian State. That is to say they do not define those rights and liabilities, but only provide for substitution of one Government in place of the other. It is also true that first part of Art. 300, as already indicted, deals only with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the better Government of India. As this Act transferred the Government of India to Her Majesty, it had to make provisions for succession of power and authority, rights and liabilities. Section 65 of the Act of 1858 is in these terms : The Secretary of State in Council shall and may sue and be sued as well in India as in England by the name of the Secretary of State in Council as a body corporate; and all persons and bodies politic shall and may have and take the same suits, remedies and proceedings, legal and equitable, against the Secretary of State in Council of India as they could have done against the said Company; and the property and effects hereby vested in Her Majesty for the purposes of the Government of India, or acquired for the said purposes, shall be subject and liable to the same Judgments and executions as they would while vested in the said Company have been liable to in respect of debts and liabilities lawfully contracted and incurred by the said Company. 10. It will thus be seen that by the chain of enactments, beginning with the Act of 1858 and ending with the Constitution the word shall and may have and take the same suits, remedies and proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the center of the road, and were, thus, liable for the consequences of what occurred. But he was in doubt as to the liability of the Secretary of State for the tortious acts of the Government servants concerned in the occurrence in which the injury was caused to the plaintiffs' horse. So the question, which was referred to the Court for its answer, was whether the Secretary of State was liable for the damage occasioned by the negligence of the Government servants, assuming them to have been guilty of such negligence as would have rendered an ordinary employer liable. In the course of their judgment, their Lordships began by examining the question whether the proviso to the jurisdiction of the Small Cause Courts to the following effect could be a bar to the suits : Provided always that the Court shall not have jurisdiction in any matter concerning the revenue, or concerning any act ordered or done by the Governor, or Governor-General or any member of the Council of India, or of any Presidency, in his public capacity, or done by any person by order of the Governor-General or Governor in Council, or concerning any act ordered or done by any Judge or Judicial Officer, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt laid it down that the Secretary of State for India was subject to the same liabilities as those which previously attached to the East India Company. 14. Before the Supreme Court of Calcutta, it was contended by the learned Advocate-General, on behalf of the defendant, that the State cannot be liable for damages occasioned by the negligence of its officers or of persons in its employment. It was pointed out, it is true that it is an attribute of sovereignty that a State cannot be sued in its own courts without its consent. In England, the Crown , it was further pointed out, cannot be made liable for damages for the tortious acts of its servants either by petition of right or in any other manner, as laid down by Lord Lyndhnrst in the case of Viscount Canterbury v. The Attorney-General (1843) 1 Phil 306 : 41 E.R. 648. That decision was based upon the principle that the King cannot be guilty of personal negligence or misconduct, and consequently cannot be responsible for the negligence or misconduct of his servants. The Court further pointed out that it was in view of these difficulties in the way of getting redress that the liability of the Secretary of State, in place of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer employed by the State, But, in our opinion his liability to be sued depends upon an express enactment in the 21st 22nd Vict. c. 106, by which he is constituted mere nominal defendant for the purpose of enforcing payment, out of the revenues of India, of the debts and liabilities which had been contracted or incurred by the East Indian Company, or debts or liabilities of a similar nature, which might afterwards be contracted or incurred by the Government of India. We are further of opinion that the East India Company were not sovereigns, and therefore, could not claim all the exemption of a sovereign; and that they were not the public servants of Government, and, therefore, did not fall under the principle of the cases with regard to the liabilities of persons; but they were a company to whom sovereign powers were delegated, and who traded on their own account and for their own account and for their own benefit, and were engaged in transactions partly for the purposes of government, and partly on their own account, which without any delegations of sovereign rights, might be carried on by private individuals. There is a great and clear distinction between acts done in the exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been liable in similar circumstances before the Constitution was enacted. The history of events leading up to the formation of the State of Rajasthan has to be adverted to in this connection. It is clear, on a reference to the Government publication called The White Paper on Indian States paragraphs 134 to 138, at pages (53-55) that the integration of the Rajasthan States into one single state was effected in several stages. The Rajasthan Union was originally formed by the smaller States, which later united and formed the United State of Rajasthan, inaugurated on March 25, 1948. Subsequently, bigger States joined and the second Rajasthan Union was inaugurated on April 18, 1948. By a further process of integration of some bigger States, new United State of Rajasthan was inaugurated on March 30, 1949. There was a further accession of territory by the agreement contained in Appendix XLI, on May 10, 1949, with the result that the initial United State of Rajasthan with an area of 16,807 sq. miles developed into one of the biggest units in India, as the Rajasthan Union, before the Constitution, with an area of 1,28,424 sq. miles, and finally, on the inauguration of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out, the law applicable to India in respect of torts committed by a servant of the Government was very much in a advance of the Common law, before the enactment of the Crown Proceedings Act, 1947, which has revolutionised the law in the United Kingdom, also. It has not been claimed before us that the common law of the United Kingdom before it was altered by the said Act with effect from 1948, applied to the Rajasthan Union in 1949, or even earlier. It must, therefore, be held that the State of Rajasthan has failed to discharge the burden of establishing the case raised in Issue No. 9, set out above. 21. Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such as any other employer. The immunity of the Crown in the United Kingdom, was based on the old feudalistic notions of Justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he could not be sued in his own courts. In India, ever since the time of the East I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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