The Union of India is not immune from liability for the tortious acts of its servants if the acts were not committed in the course of an undertaking or employment referable to the exercise of sovereign power.

( 1 ) THE present suit was instituted by the mother of Shiam Narain Singh, deceased, aged 22 years on the date of the accident, that is, 13th July, 1951. The father of Shiam Narain Singh did not join as plaintiff and he was, therefore, impleaded as defendant No. 3.

( 2 ) SHIAM Narain Singh held a permanent commission in the Indian Air Force and at the time of his death his total emoluments amounted to Rs. 527-8 per month. Shiam Narain Singh was killed in an accident with a three tonner air force vehicle which was, at the time of the accident, being driven by M. N. Kanji Lal, defendant No. 2. On the fateful day it was at about 8-00 P. M that defendant No. 2 who had been detailed with vehicle No. 550542 at the Delhi Sports Run, entered the in Gate of 3 Wing Guard Room, Indian Air Force, on Maud Road, Delhi Cantonment, to report to the Guard Room about his return. He came out of the out Gate and was going to park the vehicle at the Sub-Motor Terminus on the same road. For going to the parking terminus he had to again enter the in Gate of the 3 Wing Guard Room but when nearing the curve for entering the Gate on the right, the motor-cycle driven by the deceased hit against the vehicle and as a result of the accident Shiam Narain Singh died two hours later. At the time of the accident Shiam Narain Singh was carrying Pilot Officer Woodfall on the pillion seat of his motor-cycle. One Mr. A. K. Ghosal, another Pilot Officer, was also going side by side with the deceased at the time of the accident and his motor-cycle also collided against the vehicle and he got injured. Mr. A. K. Ghosal appeared as a witness as 1. A. I. R. 1965 S. C. 1039. 2. A. I. R. 1962 S. C. 933. Public Witness 3.

( 3 ) THE trial Court dismissed the suit on two grounds-

(1) The Union of India defendant No. 1 was not liable for the tortious act of M. N. Kanji Lal, defendant No. 2 ; and (2) the plaintiff had failed to prove that she was entitled to any amount by way of damages.

( 4 ) ONE of the questions that arose before the trial Court, namely, whether defendant No. 2 was guilty of driving the vehicle rashly and negligently, was answered in favour of the plaintiff. The same very three questions arise and have been argued before us.

( 5 ) SO far as the question of negligence of driver M. N. Kanji Lal is concerned, the trial Court has carefully analysed the evidence and I have no hesitation in agreeing with it. There is no dispute about three facts :-

(1) The accident took place about 4 or 5 yards from the in Gate between the in Gate and the out Gate of the 3 Wing Guard Room, the distance between the two Gates being about 30 to 40 yards; (2) both the motor-cycles on the one hand and the vehicle on the other were going in opposite directions facing each other on the Maud Road, which is a straight road ; and (3) the accident took place between 7-30 to 7-45 P. M. when it was slightly drizzling.

( 6 ) THE defence of M. N. Kanji Lal was that he did not see any vehicle coming from the opposite side in spite of the fact that he remained on a look out for the same; that the motor-cyclists coming from the opposite direction suddenly put on their headlights and he was suddenly dazed by the glare therefrom ; that at the time of the accident one head-light of his vehicle was on; that the street lights were not lit at that time; and that he did not notice any vehicle coming from the opposite direction and took the approaching turn in a normal way. He however, admitted in the course of his cross-examination that according to the rules of the road if he had seen the motor cycles coming from the opposite direction, he should have permitted them to pass first. Mr. A. K. Ghosal, however stated that he and the deceased Shiam Narain Singh started from the Officers Mess on two different motor-cycles at about 7-30 or 7-45 P M ; that the lights of the motorcycles were on ; that distance from the Mess to the point of the accident was about a mile ; that they were drivin