Shyam Sunder and Othes Vs. The State of
Rajasthan [1974] INSC 53 (12 March 1974)
MATHEW, KUTTYIL KURIEN 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 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 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.
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 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 predicted 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 socalled 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].
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 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 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 actor. 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, legal sense,
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 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 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 employment would depend upon the question whether the
employment 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 of to quoted 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 socalled 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 predicted 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.
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