Full Judgment Text
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PETITIONER:
SHYAM SUNDER AND OTHES
Vs.
RESPONDENT:
THE STATE OF RAJASTHAN
DATE OF JUDGMENT12/03/1974
BENCH:
MATHEW, KUTTYIL KURIEN
BENCH:
MATHEW, KUTTYIL KURIEN
ALAGIRISWAMI, A.
CITATION:
1974 AIR 890 1974 SCR (3) 549
1974 SCC (1) 690
CITATOR INFO :
RF 1976 SC 700 (13,25)
ACT:
Fatal Accidents Act, 1855, Sec. 1--A--Accident resulting
from truck catching fire--Occupant dying of injuries
sustained in jumping out of truck on caution by drive--Maxim
res ipsa loquitur--Applicability of Constitution of India,
Art. 300-Tortious liability of state--Held, famine relief
work not a sovereign function.
HEADNOTE:
The deceased, who was at the material time in the employment
of the State of Rajasthan in the Public Department, was
required to proceed from his office at Bhilwara to Banswara,
in connection with famine relief work undertaken by the
department. For that purpose, he boarded a truck owned by
the department from Bhilwara on May 19, 1952 with six
others. Throughout the journey the radiator of the truck
was getting heated frequently and the driver was pouring
water into it after every 6 or 7 miles of journey. The
truck took nine hours to travel the distance or seventy
miles. After having travelled four miles from Peragraph,
the engine of the truck caught fire. As soon as the fire
was seen, the driver cautioned the occupants to jump out of
the truck. Consequently, they did so, The deceased struck
against a stone lying by the side of the road and died
instantaneously.
The widow of the deceased brought a suit for damages against
the State of Rajasthan under the provisions of the Act. The
plaintiff alleged, inter alia, that it was on account of the
negligence of the driver of the truck that a truck which was
notroad-worthy was put on the road and that it caught fire
which led to the death of her husband and that the State was
liable for the negligence of its employee in the course of
his employment. The plaint also alleged that the deceased
had left behind him his widow namely, the plaintiff, two
minor sons, one minor daughter and his parents. The
plaintiff claimed damages to the tune of Rs. 20,000/- and
prayed for a decree for that amount. The state resisted the
claim denying negligence of the driver and pleading
sovereign immunity.
The trial Court relied on the maxim res ipsa loquitur, found
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that in putting the truck on the road the driver was
negligent as the truck was not road-worthy and since the
driver was negligent, it held that the State was vicariously
liable for his act. The court assessed the damages at Rs.
14,760/- and granted a decree for the amount to the
plaintiff. Against this decree the state appealed to the
High Court on the evidence on record, the High Court held
that the principle of res ipsa loquitur had no, application
to the facts of the case.
Accordingly, the High Court allowed the appeal. On appeal
by special leave to this Court.
HELD : (1) Generally speaking an ordinary road-worthy
vehicle would not catch fire. The driver was negligent in
putting the vehicle on the road. From the evidence, it is
clear that the radiator was getting heated frequently and
that the driver was pouring water in the radiator after
every 6 or 7 miles of journey. The vehicle took 9 hours to
cover the distance of 70 miles between Chittorgarh and
Paragraph The fact that normally a motor vehicle would not
catch fire if its mechanism is in order would indicate that
there was some defect in it. The Distt. Judge found on the
basis of evidence of witnesses that the driver knew about
this defective condition of the truck when he started from
Bhilwara. [554D-F]
It is clear that the driver was in management of the vehicle
and the accident is such that it does not happen in the
ordinary course of things. There is no evidence as to how
the truck caught fire. There was no explanation by the
defendant about it.’ It was a matter within the exclusive
knowledge of the defendant. It was not, possible for the
plaintiff to give any evidence as to the cause of the
accident. these circumstances, the maxim ipsa loquitur is
attracted. [514F-G]
550
The maxim does not embody many rule of substantive law nor a
rule of evidence. It is perhaps not a rule of any kind but
simply a caption to an arguments on the evidence. The maxim
is only a convenient label to apply to a set of circums-
tances, in which the plaintiff proves a case so as to call
for a rebuttal from the defendant, without having to allege
any specific act or omission on the part of the defendant.
Its principal function is to prevent injustice which would
result if a plaintiff were invariably compelled to prove the
precise cause of the accident and ’the dependent responsible
for it, even when the facts bearing on the matter are at the
outset unknown to him and often within the knowledge of the
defendant. The maxim is based on commonsense and its
purpose is to do justice when the facts bearing on causation
and on care exercised by the defendant are at the outset
unknown to the plaintiff and are or ought to be within the
knowledge of the defendant. [k52F-553 C]
The plaintiff merely proves a result, not any particular act
or omission producing the result. If the result, in
circumstances which he proves it makes it more probable than
not that it was caused by the negligence of the defendant,
the doctrine of res ipsa loquacious is said to apply, and
the plaintiff will be entitled to succeed unless the
defendant by evidence rebuts that probability. Res display
loquitur is an immensely important vehicle for importing
strict liability into negligence cases.[583 C-D, 584 F]
Scott. v. London & St. Catherine Docks [1865] 3 H. & C. 596,
601, (1923) S. C. (HL) 43, Barkway v. South Wales Transport
[1950]1 All-E.R. 392, Jones v. Great Western, [1930] 7 TLR
39, referred to.
(11)As the law stands today, it is not possible to say that
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famine relief work is :.it sovereign function of the State
as it has been traditionally understood. It is a work which
can be and is being undertaken by private individuals.
There is nothing ,peculiar about it so that it might be
predicated that the State alone can legitimately undertake
the work. [555 E-F]
Kasturilal v. State of Uttar Pradesh [1965] 1 S.C,.R. 375,
referred to.
Quaere : (a) Whether the Immunity of the State for injuries
on its citizens committed in the exercise of what are called
sovereign functions has any moral justification today; (b)
whether there is any rational dividing line between the so-
called sovereign and proprietary commercial functions for
determining the liability of the state. 1555 B-C, E]
Sensable : The modern sovereign immunity doctrine which is
based on the ground that there can be no legal right as
against the authority that makes the law on which the right
depends, for exempting the sovereign from suit is neither
logical nor practical. [555 D-E].
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1827
of 1967.
Appeal by special leave from the judgment and order dated
the ’29th April 1966 of the Rajasthan High Court at Jodhpur
in D. B. ,Civil Regular First Appeal No. 57.
U. N. Trivedi and Ganpat Rai, for the Appellants.
Sobhagmal Jain, for the respondent.
The Judgment of the court was delivered by
MATHEW, J. This is an appeal by special leave against the
judgment and decree of the High Court of Rajasthan, setting
aside decree for recovery of damages under the Patel
Accidents Act, 1855 hereinafter referred to as the
551
Navneetlal was a resident of Udaipur. He was in the
employment of the State of Rajasthan and was, at the
material time, working in the office of the Executive
Engineer, Public Works Department, Bhilwara as a Store
Keeper. In connection with the famine relief works
undertaken by the department he was required to proceed to
Banswara. For that purpose he boarded truck No. RJE-131
owned by the department from Bhilwara on May 19, 1952 and
reached Chittorgarh in the evening. Besides himself, there
were Fateh Singh Fundilal and Heera Singh, the driver,
cleaner and a stranger in the truck. On May 20, 1952, they
resumed the journey from Chittorgarh at about 11 A. M. and
reached Pratapgarh in the same evening. The truck started
from Pratapgarh to Banswara at about 10 A.M. on May 21,
1952. After having travelled for 4 miles from Pratapgarb,
the engine of the truck caught fire. As soon as the fire
was seen the driver cautioned the occupants to jump out of
the truck. Consequently, Navneetlal and the other persons
jumped out of the truck. While doing so, Navneetlal struck
against a stone lying by the side of the road and died
instantaneously.
Parwati Devilwidow of Navneetlal brought a suit against the
State of Rajasthan for damages under the provisions of the
Act,
The plaintiff alleged that it was on account of the
negligence of the driver of the truck that a truck which was
not road worthy was put on the road and that it caught, fire
which led to the death of Navneetlal and that the State was
liable for the negligence of its employees in the course of
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his employment. The plaint also alleged that the decreased
had left behind him his widow, , namely, the plaintiff, two
minor sons,one minor daughter and his parents. The
plaintiff claimed damages to the tune of Rs. 20,000./- and
prayed for a decree for that amount.
The State contended that the truck was quite in order when
it started from Bhilwara and even when it started from
Pratapgarh to Banswara and that if it developed some
mechanical troubles suddenly which resulted in its catching
fire, the defendant was not liable as there was no
negligence the part of the driver.
The trial court found that the act of the driver in putting
the truck on the road was negligent as the truck was not
roadworthy and since the driver was negligent, the, State
was vicariously liable for his act. The Court assessed the
damages at Rs. 14,760/- and granted a decree for the amount
to this plaintiff.
It was against this decree that the State appealed to the
High Court.
The High Court came to the conclusion that the plaintiff had
not proved by evidence that the driver was negligent, that
the mere fact that the truck caught fire was not evidence of
negligence on his part and that the maxim res ipsa loquitur
had no application. The Court said that the truck travelled
safely from Bhilwara to Pratapgarh and that the engine
caught fire after having
552
travelled a distance of 4 miles from Pratapgarh and that
there was nothing on record to show that the engine of the
truck was in any way defective or that it was not
functioning properly. The Court was of the view that the
mechanism of an automobile engine is such that with all
proper and careful handling it can go wrong while it is on
the road for reasons which it might be difficult for a
driver to explain. The Court then discussed the evidence
and came to the conclusion that no inference of negligence
on the part of the driver was possible on the basis that the
engine of the truck got heated of and on and that water was
put in the radiator frequently, or that it took considerably
long time to cover the distance between Bhilwara and
Chittorgarh and that between Chittorgarh and Pratapgarh.
The High Court therefore, allowed the appeal.
The main point for consideration in this appeal is, whether
the fact that the truck caught fire is evidence of
negligence on the part of the driver in the course of his
employment. The maxim res ipsa loquitur is resorted to when
an accident is shown to have occurred and the cause of the
accident is primarily within the knowledge of the defendant.
The mere fact that the cause of the accident is unknown does
not prevent the plaintiff from recovering damage,,, if the
proper inference to in drawn from the circumstances which
are known is that it was caused by the negligence of the
defendant. The fact of the accident may, sometimes,
constitute evidence of negligence and then the maxim res
ipsa loquitur applies.
The maxim is stated in its classic form by Erle, C. J.
" Where the thing is to shown to be under the
management of the defendant or his servants,
and the accident is such as in the ordinary
course of things does not happen if those who
have the management use proper care, it
affords reasonable evidence, in the absence of
explanation by the defendants, that the
accident arose from want of care."
The maxim does not embody any rule of substantive law nor a
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rule of evidence. It is perhaps not a rule of any kind but
simply the caption to an argument on the evidence. Lord
Shaw remarked that if the phrase had not been in Latin
nobody would have called it a principle (2). The maxim is
only a convenient label to apply to a set of circumstances
in which the plaintiff proves a case so as to call for a
rebutting from the defendant, without having to allege and
prove any specific act or omission on the part of the
defendant. The principal function of the maxim is to
prevent injustice which would result if a plaintiff were
invariably compelled to prove the precise cause of the
accident and the dependent responsible for it, even when the
facts bearing on the matter are at the outset unknown to him
and often within the knowledge of the defendant. But though
the parties’ relative access to evidence is an influential
factor, it is not controlling. Thus the fact that
(1) See SCOtt v. London St. Katherine Docks (1865) 3 H. &
C. 596, 601.
(2) See Ballard v. North British Railway Co. 1923 S. C.
(H.L.) 43.
553
the defendant is as much at a loss to explain the accident
or himself died in it, does not preclude an adverse
inference against him if the odds otherwise point to his
negligence (see John G. Fleming, The Law of Torts, 4th ed.,
p. 264). The mere happening of the accident may be more
consistent with the negligence on the part of the defendant
than with other causes. The maxim is based on common sense
and its purpose is to do justice when the facts bearing on
the causation and on the care exercised by defendant are at
the outset unknown to the plaintiff and are or ought to be
within the knowledge of the defendant (see Barkway v. S.
Wales Transport(1).
The plaintiff merely proves a result, not any particular act
or. omission producing the result. If the result in the
circumstances in which he proves it, makes it more probable
than not that it was caused by the negligence of the
defendant, the doctrine of res ipsa loquitur is said to
apply, and the plaintiff Will be entitled to succeed unless
the defendant by evidence rebuts that probability.
The answer needed by the defendant to meet the plaintiff Is
case may take alternative forms. Firstly, it may consist in
a positive explanation by the defendant of how the accident
did in fact occur of such a kind as to exonerate the
defendant from any charge of negligence.
It should be noticed that the defendant does not advance his
case inventing fanciful theories, unsupported by evidence,
of how the event might have occurred. The whole inquiry is
concerned with probabilities and facts are required, not
mere conjecture unsupported by facts. As Lord Macmillan
said in his dissenting judgment in Jones v. Great Western
(2)
"The dividing line between conjecture and
inference is often a very difficult one to
draw. A conjecture may be plausible, but it
is of no legal value, for it sessense is that
it is a mere guess. An inference, inthe,
legalsense, on the other hand,is a deduction
from the evidence, and if it is are a sonable
deduction it may have the validity of legal
proof. The attribution of an occurrence to a
cause is, I take it, always a matter of
inference. The cogency of a legal inference
of causation may vary in degree between
practical certainty and reasonable
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probability. Where the coincidence of cause
and effect is not a matter of actual
observation there is necessarily a hiatus in
the direct evidence, but this may be
legitimately bridged by an inference from the
facts actually observed and proved."
In other words, an inference is a deduction from established
facts.and an assumption or a guess is something quite
different but not necessarily related to established facts.
(1) [1950] 1 All England Reports 392, 399.
7-M 45 Sup CI/75
(2) [1930] 47 T. L. R. 39.
554
Alternatively, in those instances where the defendant is
unable to explain the accident, it is incumbent upon him to
advance positive proof that he had taken all reasonable
steps to avert foreseeable harm.
Res ipsa loquitur is an immensely important vehicle for
importing strict liability into negligence cases. In
practice, there are many cases where res ipssa loquitur is
properly invoked in which the defendant is unable to show
affirmatively either that he took all reasonable precautions
to avoid injury or that the particular cause of the injury
was not associated with negligence on his part. Industrial
and traffic accidents and injuries caused by defective
merchandise are so frequently of this type that the
theoretical limitations of the maxim are quite overshadowed
by its practical significance (1).
Over the years, the general trend in the application of the
maxim has undoubtedly become more sympathetic to plaintiffs.
Concomitant with the rise in safety standards and expanding
knowledge of the mechanical devices of our age less
hesitation is felt in concluding that the miscarriage of a
familiar activity is so unusual that it is most probably the
result of some fault on the part of whoever is responsible
for its safe performance (see John, G. Fleming, The Law of
Torts,4th ed., p. 260).
We are inclined to think the learned District Judge was
correct in inferring negligence on the part of the driver.
Generally speaking, an ordinary road-worthy vehicle would
not catch fire. We think that the driver was negligent in
putting the vehicle on the road. From the evidence it is
clear that the radiator was getting heated frequently and
that the driver was pouring water in the radiator after
every 6 or 7 miles of the journey. The vehicle, took 9
hours to cover the distance of 70 miles between Chittorgarh
and Pratapgarh. The fact that normally a motor vehicle
would not catch fire if its mechanism is in order would
indicate that there v as some defect in it. The District
Judge found on the basis of the evidence of the witnesses
that the driver knew about this defective condition of the
truck when he started from Bhilwara.
It is clear that the driver was in the, management of the
vehicle and the accident is such that it does not happen in
the ordinary course of things. There is no evidence as to
how the truck caught fire. There was no explanation by the
defendant about it. It was a matter within the exclusive
knowledge of the defendant. It was not possible for the
plaintiff to give any evidence as to the cause of the
accident.
In these circumstances, we think that the maxim res ipsa
loquitur is attracted.
It was, however, argued on behalf of the respondent that the
State was engaged in performing a function appertaining to
its character as sovereign. as the driver was acting in the
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course of his employment in connection with famine relief
work and therefore, even if the driver
(1) See Millner : "Negligence in Modern Law". 92.
555
was negligent, the State would not be liable for damages.
Reliance was placed on the ruling of this Court in
Kasturilal Ralia Ram Jain v. State of Uttar Pradesh (1)
where this Court said that the liability of the State for a
tort committed by its servant in the course of his emp-
loyment would depend upon the question whether the employ-
ment was of the category which could claim the special
characteristic of sovereign power. We do not pause to
consider the question whether the immunity of the State for
injuries on its citizens committed in the exercise of what
are called sovereign functions has any moral justification
today. Its historic and jurisprudential support lies in the
oftquoted words of Blackstone(2) :
"The king can do no wrong...... The king,
moreover, is not only incapable of doing
wrong, but even of thinking wrong; he can
never mean to do an improper thing : in him is
no folly or weakness".
In modern times, the chief proponent of the
sovereign immunity doctrine has been Mr.
Justice Holmes who, in 1907, declared for a
unanimous Supreme Court(3) :-
"A sovereign is exempt from suit, not because
of any formal conception or obsolete theory,
but on the logical and practical ground that
there can be no legal right as against the
authority that makes the law on which the
right depends."
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.
We are of the view that, as the law stands today, it is not
possible to say that famine relief work is a sovereign
function of the State as it has been traditionally
understood. It is a work which can be and is being
undertaken by private individuals. There is nothing
peculiar about it so that it might be predicated that the
State alone can legitimately undertake the work.
In the view we have taken on the merits of the case, we do
not think it necessary to canvass the correctness of the
view expressed by the High Court that the appeal by the
State before the High Court did not abate even though the
legal representatives of the plaintiff respondent there were
not impleaded within the period of limitation.
In the result, we set aside- the decree of the High Court,
restore the decree and judgment passed by the District Judge
and allow the appeal with costs.
S.B.W.
(1) [1965] 1 S. C. R. 375.
(2) Blackstone, Commentaries (10th ed., 1887)
(3) Kawananaka V. Polyblank, 205 U. S. 349, 353.
Appeal allowed.
556