Judgment

MATHEW, J.:- This is an appeal, by special leave, against the judgment and decree of the High Court of Rajasthan, setting aside a decree for recovery of damages under the Fatal Accidents Act, 1855 (hereinafter referred to as the Act).

2. 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 work 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 Pratapgarh, 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 truck. While doing so, Navneetlal struck against a stone lying by the side of the road and died instantaneously.

3. Parwati Devi, widow of Navneetalal brought a suit against the State of Rajasthan for damages under the provisions of the Act.

4. 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 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.

5. 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 trouble suddenly which resulted in its catching fire, the defendant was not liable as there was no negligence on the part of the driver.

6. The trial Court found that the act of the driver in putting the truck on the road was negligent as the truck was not road-worthy 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 the plaintiff.

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

8. 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 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, allowe