MAC.APP.No.284/2008 Page 1 of 32 16 * IN THE HIGH COURT OF DELHI AT NEW DELHI + MAC.APP.No.284/2008 % Date of decision: 12th November, 2009 HEAD OF DEPARTMENT, AIR FORCE STATION AMLA & ANR ..... Appellants Through : None. versus RAM KUMAR GIRI THR. LRS ..... Respondents Through : Mr. Neeraj Aarora, Adv. Mr. V.P. Choudhary, Sr. Adv. as amicus curiae. CORAM :- THE HON'BLE MR. JUSTICE J.R. MIDHA 1. Whether Reporters of Local papers may YES be allowed to see the Judgment? 2. To be referred to the Reporter or not? YES 3. Whether the judgment should be YES reported in the Digest? JUDGMENT (Oral) 1. The appellants have challenged the award of the learned Tribunal whereby compensation of Rs.4,74,488/- has been awarded to the claimants/respondents No.1 to 5. 2. On 22nd May, 1999 at about 6:30 am, the deceased, Ram Kumar Giri along with his mother, wife and children, was going from Delhi to Shani Dev Mandir, Kokla by Tata Sumo bearing No.HR-26H-2105 and when they reached G.T. Road, Village Kulsipur, Palwal (Faridabad), the Air Force truck bearing No.BA No.89D 84861 came from the opposite direction on the wrong MAC.APP.No.284/2008 Page 2 of 32 side of the road and hit the Tata Sumo resulting in grievous injuries to the deceased. 3. The deceased was sitting on the front seat of Tata Sumo besides the driver and he suffered fracture in both legs and left hand as well as injuries on the head and neck. The deceased suffered 74% disability due to the injuries suffered by him in the accident which resulted in his death on 31st October, 2006. 4. The deceased initially filed the claim petition for compensation in respect of injuries suffered by him. However, after his death, the deceased was substituted by his wife, three minor children and father who amended the claim petition and claimed the compensation for the injuries suffered by the deceased as well as the compensation arising out of the death of the deceased. 5. The offending vehicle was owned by Air Force and the claim petition was filed against the driver and Air Force as the owner of the offending vehicle. 6. Separate written statements were filed by the driver and owner of the offending vehicle before the learned Tribunal. 7. The driver of the offending vehicle admitted the accident. However, the driver denied that the accident occurred due to his rash and negligent driving. It was submitted by the driver in the written statement that he changed the vehicle lane due to blockage of road at different places. It was further submitted that the Tata Sumo was being driven rashly and negligently at a MAC.APP.No.284/2008 Page 3 of 32 very high speed and the accident occurred due to the rash and negligent driving of Tata Sumo. 8. In the separate written statement, the Air Force also admitted that their driver changed the lane and came on the wrong side of the road due to the blockage of road at three different places. It was further submitted that the driver had no other alternative but to come on the wrong side of the road due to blockage of the road and the same was done by other vehicles plying on the road. The relevant portion of para-1 of the reply on merits is reproduced hereunder:- “The allegations leveled by the petitioners that Shri Ashok Kumar was driving the service vehicle negligently and rashly are absolutely false and strongly denied. The fact is that Shri Ashok Kumar had changed the vehicle lane of his service transport from main Palwal road to Mathura road due to the blockage of road at three different places and therefore Shri Ashok Kumar was not intentionally driving the service vehicle on wrong side. The circumstances developed due to blockage of road had made him to follow the wrong side, since he did not have any other alternative. The same was being done by other vehicles plying on that road. It is further submitted that, infact, TATA Sumo was being driven rashly and its driver did not take due precautions to avoid the accident. The passengers of TATA Sumo were immediately taken to nearby hospital and they are promptly attended to.” 9. The deceased appeared in the witness box as PW-1 and deposed that he and his family were going from Delhi to Shani Dev Mandir, Kokla by Tata Sumo bearing No.HR-26H-2105 and when they reached Palwal, a military truck bearing BA No.89D 84861 came from front side at a high speed in a rash and negligent manner and hit the Tata Sumo due to which the deceased and his mother received injuries. PW-1 further deposed MAC.APP.No.284/2008 Page 4 of 32 that he became unconscious after the accident and was taken in an ambulance to General Hospital where he regained consciousness and Police recorded his statement. PW-1 was thereafter referred to St. Stephen‟s Hospital, Delhi on the same day. The witness suffered fracture in both legs and left hand and both the bones of the thigh were broken apart from injuries on neck and head. PW-1 remained hospitalized in private ward for 1½ months and stated to have incurred Rs.5,00,000/- on his treatment, conveyance and special diet. PW1 was confined to bed and one attendant remained with him whole day. PW1 proved the treatment record - Ex.PW1/F to Ex.PW1/Z and Ex.PW1/A1 to Ex.PW1/44. PW1 also proved the certified copies of the criminal record Ex.PW1/A to Ex.PW1/E. PW1 proved the documents relating to the treatment and the bills for purchase of medicines as Ex.P-1 to Ex.P-36. 10. In cross-examination, PW-1 was asked as to how many persons were travelling in Tata Sumo to which PW-1 replied that 6-7 persons, namely, the deceased, his mother, wife, two daughters and son were travelling in the vehicle and the deceased was sitting on the front seat. The witness denied that there was a traffic block on the other side of the road and the entire traffic was diverted on the right side. PW-1 further stated in cross-examination that the speed of Tata Sumo was about 20 kms per hour at the time of the accident. The witness was also cross-examined about his health, occupation and income. MAC.APP.No.284/2008 Page 5 of 32 11. The witness from St. Stephen‟s Hospital appeared as PW-2 and proved the treatment record - Ex.PW2/1 to Ex.PW2/5. The witness also proved the attested copies of medical bills as Ex.PW2/6 collectively. PW-2 also deposed that the deceased was admitted in the St. Stephen‟s Hospital five times. PW-2 was not at all cross-examined by the appellants despite opportunity given. 12. The appellants produced four witnesses. The driver of the offending vehicle appeared as R1W1 and admitted that he changed the vehicle lane due to blockage of the road at three different places as he did not have any other alternative. R1W1 further admitted that he was following other vehicles which were using the wrong path due to blockage. Paras 3 and 4 of the examination-in-chief of R1W1 are reproduced hereunder:- “3. That on the day of accident, the deponent had changed the vehicle lane from his service transport from main Palwal Road to Mathura Road due to the blockage of road at three different places as he did not have any other alternative. 4. That he was driving very cautiously and normal speed and was following the other vehicles, which were using alternative path due to the blockage.” 13. The Sqn. Ldr., V.G. Nadkarni appeared as R2W1 and also admitted that the driver, Ashok Kumar changed the lane of his vehicle due to blockage of the road and was following other vehicles which were also using alternative path at the relevant time due to blockage. R2W1 placed on record the copy of the Departmental Inquiry Proceedings – Ex.R2W1/1. This witness also imputed the negligence to the driver of Tata Sumo. Para 6 and 7 MAC.APP.No.284/2008 Page 6 of 32 of the affidavit of R2W1 are relevant and are reproduced hereunder:- “6. The deponent says that on 22.05.1999 the respondent no.01 Ashok Kumar had to change the vehicle lane of his service transport from main Palwal road to Mathura road, due to blockage of the road, which was blocked due to an accident. 7. The deponent says that the respondent no. 01 was driving very cautiously and normal speed and was following the other vehicles, the other vehicles were also using alternate path on the relevant day due to blockage.” In cross-examination, R2W1 admitted that he had no personal knowledge of the facts of the case and came to know of the facts only on the perusal of the file of the investigation. R2W1 further admitted that the deceased was not joined in the departmental enquiry conducted by Air Force. 14. Umed Singh appeared as R2W2. R2W2 was escorting the offending vehicle at the time of the accident. R2W2 admitted that the offending vehicle came on wrong side of the road as other vehicles were also using alternative path due to blockage and the offending vehicle was following the other vehicles on a very normal speed. R2W2 also imputed the negligence on the Tata Sumo. Para 3 of the affidavit of R2W2 is reproduced hereunder:- “3. That the said service transport was taken to right side of divider because the left way was blocked due to accident. The other vehicles were also using alternate path due to the blockage and we were following the other vehicles on a very normal speed as around 10 KM/n.” MAC.APP.No.284/2008 Page 7 of 32 15. Subedar Nathi Ram appeared in the witness box as R2W3 and deposed that a wheat loaded truck was lying in front of his mill due to which the transport was diverted from Palwal Road to Mathura Road and the vehicles were using the alternative road due to blockage of road. In cross-examination, R2W3 admitted that he did not witness the accident and he went to the accident site after receiving the information. R2W3 did not go to the Police Station and was not examined by the Police. 16. The learned Tribunal held that the accident in question occurred due to the rash and negligent driving of the Air Force vehicle by its driver. 17. The learned counsel for the appellant has challenged the finding of the rash and negligent driving of the offending vehicle by its driver and has submitted that the accident occurred due to the rash and negligent driving of Tata Sumo in which the deceased was travelling. There is no challenge to the quantum of compensation computed by the learned Tribunal. The respondents have filed counter claim to seek the enhancement of the award amount. 18. The learned counsel for the appellant has submitted that there was a convoy of three vehicles of Air Force and there was obstruction on the national highway near Palwal at three places due to which the road was blocked and, therefore, the convoy came on the wrong side of the road as there were other vehicles also which had come on the wrong side of the road. There was a road divider and two vehicles of the convoy came on the correct MAC.APP.No.284/2008 Page 8 of 32 side of the road after travelling about 1/2 km on the wrong side but the third vehicle of the convoy met with an accident with a Tata Sumo. The learned counsel for the appellant further submits that the Tata Sumo was overtaking two other vehicles and in the process met with an accident with the Air Force convoy. 19. The offending Air Force truck was on the wrong side of the road at the time of the accident which is admitted by the driver of the Air Force truck in his written statement as well as in his testimony as R1W1. The blockade of road on the correct side and other vehicles having come on the wrong side of the road is no justification for coming on the wrong side of the road. Merely because there was blockade on the correct side and other vehicles had come to wrong side of the road, the driver of the Air Force truck did not have the right to come on the wrong side of the road. Admittedly, there was no traffic policeman on the site who diverted the traffic on the wrong side. The driver of the Air Force truck neither put on the head lights/emergency lights nor blew the horn so as to give an indication to the traffic coming from the opposite direction. The driver of the Air Force truck was clearly rash and negligent. The finding of rash and negligence of the Air Force truck is, therefore, upheld. 20. The second contention of learned counsel for the appellant is that the driver of the Air Force vehicle was performing the sovereign function and, therefore, Air Force is not liable on the ground of sovereign immunity. The learned counsel refers to and relies upon the following judgments in support of the plea of MAC.APP.No.284/2008 Page 9 of 32 doctrine of sovereign immunity:- (i) Secretary of State vs. A. Cockcraft, AIR 1915 Madras 993. (ii) Kasturi Lal Ralia Ram Jain vs. State of U.P., AIR 1965 SC 1039. (iii) N. Nagendra Rao & Co. vs. State of A.P., AIR 1994 SC 2663. (iv) Bakshi Amrik Singh vs. Union of India, 1974 ACJ 105 (P&H). (v) Thangarajan vs. Union of India, AIR 1975 Madras 32. (vi) Shakuntala Devi vs. Union of India, 1976 ACJ 97. 21. The learned counsel for the claimants submit that:- (i) The appellant did not raise the plea of sovereign immunity as a defence before the learned Tribunal in its written statement. (ii) No issue was, therefore, framed by the learned Tribunal on the issue of sovereign immunity. (iii) No evidence was even led before the learned Tribunal on the issue of sovereign immunity. (iv) The plea of sovereign immunity has been raised for the first time in the appeal before this Court. (v) The doctrine of sovereign immunity is not applicable to the claim for compensation under the Motor Vehicles Act. (vi) The Motor Vehicles Act is a special law to govern the payment of compensation to the victims of the road accident and it covers the vehicles owned by the Central Government used for defence purposes and no MAC.APP.No.284/2008 Page 10 of 32 exception has been carved out in the law with respect to the tortious liability arising out of use of Government vehicle performing sovereign functions. 22. Mr. V.P. Choudhary, Senior Advocate as amicus curiae and counsel for the claimants submits that the doctrine of sovereign immunity pleaded by the appellant is not applicable to the claim for compensation under the Motor Vehicles Act, 1988. Mr. Choudhary submits that the Motor Vehicles Act, 1988 is a special law to govern the payment of compensation to the victims of the road accidents and it covers the vehicles owned by the Central Government used for defence purposes and no exception has been carved out in the law with respect to the tortuous liability arising out of the use of the government vehicle for defence purposes. Mr. Choudhary has referred to the following provisions of the Motor Vehicles Act, 1988 in the regard:- (i) Section 2(30) defines the “owner” of a motor vehicle and it includes all vehicles including the vehicles owned by the Air Force. (ii) Section 2(20) defines the “licencing authority” and Section 2(37) defines the “registering authority”, which are empowered to register and issue licences even in respect of Air Force vehicles. (iii) Section 18 provides that the authority prescribed by the Central Government may issue driving licence to drive motor vehicles which are under the exclusive control of the Central Government and are used for government purposes relating to the defence of the country and unconnected with any commercial enterprise. (iv) Section 60 provides for registration of vehicles belonging to the Central Government and used for defence of the country. MAC.APP.No.284/2008 Page 11 of 32 (v) Section 140(1) provides for payment of compensation on the principle of no fault liability on the owner of the motor vehicle. (vi) Section 144 provides that the provisions of Chapter X shall have effect notwithstanding anything contained in any other provision of the Motor Vehicles Act or any other law for the time being in force. (vii) Section 146(2)&(3) provides that the Government may exempt the requirement of compulsory insurance in respect of Government vehicle provided that the fund is established and maintained for meeting any law arising out of the use of the government vehicle. (viii) Section 165 provides for constitution of the Motor Accident Claims Tribunal for the purpose of adjudicating the claims for compensation in respect of accidents involving the death or bodily injury to persons arising out of the use of motor vehicles. (ix) Section 168 provides the payment of the compensation by the insurer or owner or driver of the offending vehicle involved in the accident. 23. The learned amicus curiae and the counsel for the claimants have referred to and relied upon the following judgments:- (i) State of Rajasthan vs. Vidhyawati, AIR 1962 SC 933. (ii) Pushpa Thakur vs. Union of India, AIR 1986 SC 1199. (iii) Saheli, a Women‟s Resources Centre vs. Commissioner of Police, Delhi, AIR 1990 SC 513. (iv) N. Nagendra Rao and Co. vs. State of Andhra Pradesh, AIR 1994 SC 2663. (v) Common Cause, a Registered Society vs. UOI, AIR 1999 SC 2979. (vi) State of A.P. vs. Challa Ramkrishna Reddy, AIR 2000 SC 2083. (vii) Usha Aggarwal vs. Union of India, AIR 1985 P&H 279. (viii) Gurbachan Kaur vs. Union of India, 2002 ACJ 666 (PH). (ix) State of Rajasthan vs. Shekhu, 2006 ACJ 1644 (Rajasthan HC). MAC.APP.No.284/2008 Page 12 of 32 24. Considering the important question of law involved in this case, Mr. Parag Tripathi, learned ASG was requested to examine the plea of sovereign immunity set up by the appellants and assist this Court. Mr. Parag Tripathi, appeared before this Court on 10th July, 2009 and submitted that the doctrine of sovereign immunity which is based on the maxim that „King can do no wrong‟ has no place in Indian jurisprudence. Mr. Tripathi has made submissions on the law relating to sovereign immunity in India as well as in England, United States, Australia, Canada, Singapore, South Africa and Pakistan. Mr. Tripathi, learned ASG has referred to the following judgments:- (i) Peninsular and Oriental Steam Navigation Co. (ii) State of Rajasthan vs. Vidyawati, AIR 1962 SC 933. (iii) Kasturilal Ralia Ram Jain vs. State of Uttar Pradesh, AIR 1965 SC 1039, Pr.21 pg.1046. (iv) Pushpa Thakur vs. UOI & Anr., AIR 1986 SC 1199. (v) Nagendra Rao & Co. vs. State of Andhra Pradesh, (1994) 6 SCC 205. (vi) State of Andhra Pradesh vs. Challa Ramkrishna Reddy, AIR 2000 SC 2083. (vii) Dalehite v. United States, 346 US 15. (viii) Royster v. Cavey, 1947 KB 204. 25. The doctrine of sovereign immunity was considered by the Hon‟ble Supreme Court in the case of State of Rajasthan vs. Vidhyawati (supra). In that case, the driver of a Government MAC.APP.No.284/2008 Page 13 of 32 jeep knocked down a pedestrian which resulted in his death. The legal representatives of the deceased sued the Government of Rajasthan and the driver for compensation for the tortious act of the driver. The suit was decreed by the Trial Court and upheld by the High Court in appeal. The State of Rajasthan filed the appeal before the Hon‟ble Supreme Court on the ground that it is not liable for the tortious act of its employees. The appeal was dismissed. The Hon‟ble Supreme Court held that the rule of immunity in favour of Crown based on common law in the United Kingdom has disappeared from the land of its birth and it has no validity in our country after the Constitution. The Hon‟ble Supreme Court further held that Article 300 of the Constitution has saved the right of Parliament to enact such law but no law has been enacted till now. The findings of the Hon‟ble Supreme Court are as under:- “We have not been shown any provision of law, statutory or otherwise, which would exonerate the Rajasthan Union from vicarious liability for the acts of its servant, analogous to the Common Law of England. It was impossible, by reason of the maxim "The King can do no wrong", to sue the Crown for the tortious act of its servant. But it was realised in the United Kingdom that that rule had become outmoded in the context of modern development is statecraft, and Parliament intervened by enacting the Crown Proceedings Act, 1947, which came into force on January 1, 1948. Hence the very citadel of the absolute rule of immunity of the sovereign has now been blown up. Section 2(1) of the Act provides that the Crown shall be subject to all those liabilities, in tort, to which it would be subject if it were a private person of full age and capacity, in respect of torts committed by its servants or agents, subject to the other provisions of the Act. As already pointed out, the law applicable to India in respect of torts MAC.APP.No.284/2008 Page 14 of 32 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.” (para 14) “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 authorizing or instigating one, and that he could not be sued in his own Courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sue in tort or in contract, and the Common Law immunity never operated in India.” (para 15) “When the rule of immunity in favour of the Crown based on common Law in the United Kingdom has disappeared from the land of its birth, there is no legal warrant for holding that it has any validity in this country, particularly after the Constitution. As the cause of action in this case arose after the coming into effect of the Constitution in, our opinion, it would be only recognising the old established rule, going back to more than 100 years at lest, if we upheld the vicarious liability of the State. Art. 300 of the Constitution itself has saved the right of Parliament or the Legislature of a State to enact such law as it may think fit and proper in this behalf. But so long as the Legislature has not expressed its intention to the contrary, it must be held that the law is what it has been ever since the days of the East India Company.” (para 15) 26. The doctrine of sovereign immunity again came up for consideration before the Hon‟ble Supreme Court in the case of Pushpa Thakur vs. Union of India (supra). In that case, the army truck rammed into another vehicle resulting in fracture of both legs and amputation of right leg of the victim. The driver of MAC.APP.No.284/2008 Page 15 of 32 the military truck was found to be negligent. The principle of sovereign immunity of the State was rejected by the Hon‟ble Supreme Court. The Hon‟ble Supreme Court held that the principle of sovereign immunity of State for the acts of its servants has no application in such cases and Union of India is clearly liable to pay compensation to the victims for negligence of the driver of