Judgment

SINHA, C.J.I. : This appeal, on a certificate granted by the High Court of Rajasthan under Art. 133(1)(c) of the Constitution, raises a question of considerable importance, namely, the extent of the vicarious liability of Government for the tortious acts of its employees, acting in the course of their employment as such. The Trial Court dismissed the claim for compensation as against the State of Rajasthan, which was the second defendant in the suit for damages for tortious act of the first defendant, Lokumal, who is not a party to this appeal. On appeal by the plaintiffs against the judgment & decree of the Trial Court, the High Court of Rajasthan passed a decree in favour of the plaintiffs allowing compensation of Rs. 15,000/- against the State of Rajasthan also, which is the appellant in this Court.

2. The facts of this case may shortly be stated as follows. The first defendant. Lokumal, was a temporary employee of the appellant State, as a motor driver on probation. In February, 1952, be was employed as the driver of a Government jeep car, registered as No. RUM 49, under the Collector of Udaipur, The car had been sent to a workshop ion necessary repairs. After repairs had been carried out, the First defendant, while driving the car back along a public road, in the evening of February 11, 1952, knocked down one Jagdishlal who was walking on the footpath by the side of the public road in Udaipur city, causing him multiple injuries, including fractures of the skull & backbone, resulting in his death three days later, in the hospital where he had been removed for treatment. The plaintiffs, who are Jagdishlal s widow and a minor daughter, aged three years, though her mother as next friend, sued the said Lokumal and the State of Rajasthan for damages for the tort aforesaid. They claimed the compensation of Rs. 25,000/- from both the defendants. The first defendant remained ex parte. The suit was contested only by the second defendant on a number of issues. But in view of the fact that born the Courts below have agreed in finding that the first defendant was rash and negligent in driving the jeep car resulting in the accident and the ultimate death of Jagdishlal, it is no more necessary to advert to all the questions raised by way of answer to the suit, except the one on which the appeal has been pressed before us. The second defendant, who was the respondent in the High Court, and is the appellant before us, contested the suit chiefly on the ground that it was not liable for the tortious act of its employee. The Trial Court, after an elaborate discussion of the evidence, decreed the suit against the first defendant ex-parte, and dismissed it without costs against the second defendant. On appeal by, the plaintiffs, the High Court of Rajasthan (Wanchoo C. J. and D.S. Dave J.) allowed the appeal and decreed the suit against the second defendant also, with costs in both the Courts. The State of Rajasthan applied for and obtained the necessary certificate "that the case fulfils the requirements of Art. 133(1)(c) of the Constitution of India". The High Court rightly observed that an important point of law of general public importance, namely, the extent, of the liability of the State, in tort, was involved.

3. In support of the Appeal, counsel for the Appellant raised substantially two questions, namely, (a) that under Art. 300 of the Constitution, the State of Rajasthan was not liable, as the corresponding Indian State would not have been liable if the case had arisen before the Constitution came into force; & (2) that the jeep car, the rash & negligent driving of which led to the claim in the suit, was being maintained "in exercise of sovereign powers" and not as part of any commercial activity of the State. The second question may shortly be disposed of before we address ourselves to the first question, which is the more serious of the two raised before us. Can it be said that when the jeep car was being driven back from the