SHY AM SUNDER AND OTHES R v.

THE STATE OF RAJASTHAN

March 12,. J974

[K. K. MATHEW AND A. ALAGIRISWAMI, JJ.]

549.

Fatal Accidents Act, 18SS, See. 1-A-Accitknt 1esulting from truck catching firt- Occupant dying of injuries sustained in jumping out of truck on caution by drive - Maxim res ipsa /oquitur-App/icability of Constitution of India, Art. 300-Tortious IUWility of state- Held, fami'ne relief work not a sovereign funclf!'n.

The deceased, who was at the material tinle in the en1ployment of the State of Rajasthan in the Public Department, was required to proceed from his office at Bhdwara 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 gettiog heated frequently and the driver was pouring water into it after overy .6 or 7 miles of journey. The truck took nine houn to travel the distance or seventy miles.

After having travelled four miles from Pratapgarh, the engine of the truck caught fire.

As soon as the fire was seen, the driver cautioned the occu pants to jump out of the truck. Consequently, they did so. The deceased struck against a stone Iyina 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 a1ia, that it was on account of the negliaence of the driver of the truck that a truck which was not road-worthy was piit 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 alleaed that the deceased had left behind

him his widow name]yt the etaintiff, two minor sons, one minor daughter and his parents. The plaiotilfclatmed damaaes to the tune of Rs. 20,<XXJ/. and prayed for a decree for that amount. The state resisted the claim denying negligence of the driver and plea.din& sovereign immunity.

The trial Court relied on the maxim res ipsa /oquitur, found that in putting the truck on the road the driver was negligent as the truck was not road-worthy and sine the driver was negligent, it held that the State was vicariously Hable for his a.ct.

Th4; court assessed the damages at Rs. 14,7flJ/· and granted a decree for the amount to the plaintiff. Against this decree the state appealed to he High Court. On the evidence on record, the High Court held that the principle of res ipsa /oquitur had no

3pplication to the factsof the case.

Accordingly, the High Court allowed the appea1. On appeal by special leave to thi~ Court.

HELD : (I) Generally speaking an ordinary roadworthy vehicle would not cateh fire. The driver was nea].igent 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 poui-ing 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 Pratapgarh.

The fact that normally a m:otor vehicle would not catch fire if its mechanism is in order would indicatC that there was some defect in it. The Distt. Judge. found on the basis of evidence of witnesses that th~ driver knew about this defec.._ tive cOndition of the truck when he started from Bhtlwara. [5540-FJ

It is clear that the driver was in management of the vehicle and the accident is sw:h that it does not happen in the ordinary course of th!ngs. There is no evidCnceas to how the truck cauaht fire .. There was no explanatton by the defendant about':!: it It was a matter within the exclusive knowlcdce of the defendant. It was not.. ible rOr _the plainti" to _give any evide a~ to the cause of the accident. these circumstances, the maxun rts ipsa loqurt11r 1s attracted. [S~4F-G]

The 1naxiin docs not embody any rulC of substantive law nor a rule of evide- n:c. It is perhaps not a rule of any kind but simply a caption to an agrun1cnt on the evider.ce. 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 rebuttal from the defendant without having to allege any specific act or omission on the part of the defendant. Jts principal function i's to prevent injustice which would result if. a plaintiff were invari::tbly co1npellcd to prove the precise cause of the accident and the dcfend:i.ut r~Sponsible for it, even v.hen the facts bearing on the matter arc at the outset unl:novn to him and often within the knowledge of the defendant. The 1naxim is based on commonsense and its purpose is to do justice when the facts bear ing on causation and on care exercised by the <lefenclant are at the outset unknown lo the plaintiff and ure or ought to be within the knowledge of the defendant. !k52F-553 CJ The plointiff r:ierely proves a result, not any particular act or omission prodi..· cing the result. Jf thC result, in clrcumstances which he proves it makes it more prob able than not that it was caused by the negligence of the defendant, the doctrine of re~ ipsa (Jq11itur is said to apply, and the plaintiff will be entitled to succeed un less the defendant by evidence rebuts that probability.

R's dispa loquitur is an im inensely important vehicle for importing strict liability into negligence cases. '[583 C-D, 584 Fj

ScorJ. v. London & St. Catherine Docks [18651 3 H. & C. 596, 601, {t9i3) S. C. ·(I-IL) 43, Barkwav v. South ~Vales Transport [1950J 1 AllE.R. 392, Jones v, Gr, at IVester11, [1930] 7 TLR 39, referred to.

(fl) As the law stands today, it is not possible to say that famine relief work is D a sovereign function of the State as it has been traditionally understood. Jt 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-FJ Kasturi/a/ v. Sta.le of Uttar P1adesh [1965] 1 S.<;:.R. 375, referred to.

QL1aere : (a) Whether the immunity of the State for injuries on its i.; itizens committed in the exercise of what are called sovereign functions has any m91aJ justi- E fication today; (b) whether there is any rational dividing line between the so-called sovereign and proprietary commercial functions for determining the 1iubility of the state. [555 B-C, E]

Se:n1:llc: The m:iiern sovereign immunitv doctrine which is based on the )!round that there con be no leal right as aainc; t the authority that mak.es the law on which the right depends, for exempting the sovereign from suit is neither logical nor ; practical. [555 D-E].

CJvIL

APPELLATE

JURISDICTION: Civil Appw.l No. 1827 of 1967.

App, al by spocial leave from I.he judgment and order dated the-, '29th April 1966 of the Raja<thc High Court at Jodhpur in D. B.' Civil Regular First Appeal ~"· 48 of 1957.

U. N. Trivedi and Ga.ipat Rai, for the Appellants.

Sobhagmal Jain, for the respondent.

The Judgment of the Court was delivered by

MATHEW, J.

This is an appoal by special leave, against the iudgment 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 Act).

.. '"'

SHYA!v1 SUNDER v. RAJASTHAN (l'vt:.d1c, t,. J) 551

Navneetlal was a resident of Udaipur.

He was in the emplovment of the State of Rajasthan and was, at the material time, worki,; g in the office of the Executive Engineer, Public Works Department, Bhilwara as a Store Keep or. In connection with the famine relief works undertaken by the department he \Vas required to piocced to B(l.nswara. For that purpose he boarded trnck No. RJE-131 owned by the deportment from Bhihve.re on May 19, 1952 and reached Chittorgarh in the evening.

Reids hiJneif, there \'i'ere FD.tch Singh FundjJal and Hccra Sing:1, the dnver, cleaner and a stranger jn 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 fro1n Pratapgarh to Bans\V<ra at about IO A.M. on May 21, ]952. After having travelled for 4 miles fro:n Pratapgarh, the engine of the truck caught lire.

As soon as the fire was seen the <lriver cautiont<l the occupants to ju1np out of the truck.

Consequently, Navneetlal and the other persons jumped out Of the truck. \VJ1ile doing so, Navnectla1 strurk against a stone lying by the ide of the r0a:l and died instantaneollsly.

Parwati Devi, widow of NnvneetlaI r.rought a suit [].gain.st the State of Rajasthan for damages under the provisions of the Act.

The p!aintiff alleged that it w&s on account of the negligence of the driver of the truck that a truck \vhich , va:.; not ror.dwortliy was put on the road and that it caught fire which led to tl:e death of Navneetlal and that the State wos liable for the negligence of its employees in tlie course of his employment. The plaint also alleg'd that the deceased had left behind him his widow, namely, th:! plaintiff, two n1inor 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 qt1ite in order when it started from Bhilwara and even when it started from Pratapgarh to Banswara and that if it dc\'eloped some mechanical troubles suddenly which resulted in its catc'.1ing fire, the defendant was not liable as th'ro was M neglig, nce oa the part of the driver.

The trial court found that the act of the driver in putting the truck?" the road was negligent as the truck was not rnadworthy and since the dnver was neghgent, the State was v1canously liable for his act. The Court assessed the damages at Rs. 14,760/· and granted a decree for the amount to the plaintiff. ·

It was ag1inst this decree that the State appealed to the High Court.

The High Court came to the condusion that the plaitiff had not proved by evidence that the driver was negligent, that the mere fact that the truck caught fire was not evidence cf negligence on his part and that the maxim res ipsa /1quitur had. no application.

The Court said that the truck travelled safely from Bhilwara to Pratapgarh and that the engine caught fire after having

SUPREME COUJ.T REPORTS [ 1974 l 3 s.C.R.

travelled a distance of 4 miles from Pratapgarh an<i that there was nothing on record to show that the engine of the truck was in any way defectlve or that it was not functioning properly.

The Court was of the view that the mechanism of "n 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 , tlriver was pqssibl~ on the basis that ihe 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 Pratap garh. 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 evidencde of negligence on the part of the driver in the course of his employment. The maxim res ipso /oquitur 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 damageo, if the proper inference to in drawn from the circumstances which are known is that it w1s caused by the negligence of the defendant. Tho fact of tte accident may, sometimes, constitute evidence of negligence and then the maxim res ipso loquitur applies.

The maxim is stated in its classic form by Erk, C. J. :

" .... Wh< re the thing is to shown to be under the management of the defendant or his scrvents, 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 ab, ence 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 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 rebuttle from the defendant without having to allege and prove any specific act or omission o~ 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 defendent responsible for it, even when the facts bearing on tlie matter are at the outset unknown to him and often within the knowldge of the defendant. But though the parties' relative access to evidence is an influential, factor, it is not controllinll. Thus the fact that

(I) See Scott v. London St. Katherine Docks (1865) 3 H. & C. S96, 601.

(2) Soe Ballard v. North British Railway Co.1923 S. C. (H.L.)43.

SHYA){ SUNDER V. RAJASTHAN (Mal~W, /,) 553

the defendant is as much at a loss to explain the aci; ident or ·- himself died in it, docs 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 tht 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 excercised by defendant are at the outset unknown to the plaintiff and are or ought to be withfn the knowledge of the defendant (see Barkwa>' v. S.

Wales Tran.lport(l). ·

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, makesit more probable than not thai it was

cau$ed by the negligence of thio defendant, the doctrine of res ips11 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's case may take alternative fornis. 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 doesllot advance bis 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 nlere conjecture unsupported by facts. As Lord Macmillan said in his dissenting judcment in Jones v.

Great Western (2) : ·

"Tb•; 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 its essense is that it is a mcreguess. An inference, in. the legal sense, on the other band, is a deductioL from the.evidence, and if it is a reasonable deduction it inay 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 rtainty and reasonable probability. Where the coincidence of cause and effect is not a matter of actual 01>servation there is. necessarily a hiatus in the dirt ct evidence, but Uris may be legitimately bridged by ; m inference from tLe frets actually observed and proved."

In other words, an inference is adeductioo from established facts and an assumption or a guess is SJmething quite different but not necessarily related to established facts.

(I). [1950] l All J; ngland Reports 392, 39~; 7 _;_M 45 Sup on 5

(2) [1930] 47 T. L. R. 39.

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 1ps' /oquitur is an immensely important vehicle for importing strict liability into negligence cases. In practice, there are many cases where res iP'" /oquitur 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 (I).

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 me chanical devices of our age less hesitation is felt in concluding that the miscarriage ofa 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 g<tting 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 vould indicate that there \las 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 foquitur is attracted. ·

It was, however, argued on behalf of the respondent that the State was engaged in prforming a function app.ertaining to its character

s soverein as he drier wa.s acting in the course of his employment H in connection with famine reltef work and therefore, even if the driver

(1) See Millner : "Negligence in Modern Law". 92,

Sl!YAM SUNDER v. RAJASTl!AN (Mathew, J.) 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 f Uttar Pradesh (I) where this Court said that the liability of the State for a tort committed by its servant in the course of his employment would depend upon the question whether the employment wa~ of the category which could claim the special characteristic of s?verelgn power. We do not pause to consider the question whether the >mmumty 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 for1nal 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 Slate.

We are of the view that, as the law stands !Oday, 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 und.ertaken 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 experessed by the High Court that the appeal by the State before the High Court did not abate even though the legal representa•ives of the plaintiffrepondent 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.

(I) 11965] 1 S. C. R. 375.

(2) Blackstone, Commentaries (10th ed., 1887)

(3) Kawananakav. Polyblank, 205 U.S. 349, 353.

Appeal allowed.