Report No. 01
18. Section 2(1)-
The common law duties for the breach of which the Crown is liable under this Act may be considered under three heads:-
The first relating to the liability of the master for the torts committed by servants or agents or what is customarily treated as the vicarious liability of the master.
The second relating to the liability of the master to his servants or agents in his capacity as an employer.
The third relating to the duties which arise at common law by reason of the ownership, occupation, possession or control of property.
19. The proviso to section 2(1) adds a qualification to the vicarious liability of the Crown for the torts committed by its servants [clause (a)], namely, that the act or omission should give rise to a cause of action against the servant or agent or his estate apart from the provisions of this Act. In other words, if the servant himself could not be sued in respect of the tort committed by him, the Crown would not be liable.
It was probably intended to exclude the liability when the servant has the defence of an "Act of State" open to him or in the extreme case which arises in England when the tortfeasor is the husband of the person wronged, as the wife could not sue the husband under the English law for torts committed by him against her. This latter restriction does not arise in India and, therefore, need not trouble us. If the defence of "Act of State" is open to the servant, the wrong does not become a tort and the Proviso was, accordingly, criticized by a learned author (Mr. Street) as unnecessary.