The Union of India is liable for damages caused by the tortious acts of its servants, including military drivers, when those acts are not carried out in the exercise of sovereign powers.

D.Falshaw, J.

1. The following question arising out of a first appeal in this Court has been referred to a Full Bench:

"Whether the Union of India is liable to be sued in respect of tort committed by a military driver while transporting coal to General Headquarters at Simla in discharge of his duties".

2. Briefly the facts are that on the morning of the 7th of December 1954 Rakha Ram deceased was run down and fatally injured by a military truck which was carrying coal and being driven by an army driver to the Army General Headquarters building in Simla. His depends, a widow and two children, instituted a suit for the recovery of Rs. 20,000/- as damages against the Union of India alleging that the death of the deceased was due to the rash and negligent driving on the part of the soldier who was driving the truck, and that the Union of India was liable to pay the damages caused by the rashness and negligence of its employee.

3. The Governments defence was two-fold, firstly a denial of any negligence on the part of the driver of the truck and secondly that the Union was not liable for the tortious acts of its servants. The quantum of damages was also challenged, but the lower Court held that the death of the deceased was due to rash and negligent driving and that the Union was liable. The damages were computed at Rs. 5,000/- and a decree for that amount was passed. The learned Judges who first heard the appeal of the Government against this decree, and who are now sitting will me in this Bench, felt some difficulty regarding the question of the liability of the Union of India for damages in these circumstances and hence they formulated the question set out above for reference to a larger Bench.

4. It is clear from the order of reference that the difficulty in deciding the question raised arose mainly out a decision of two of us, Mehar Singh, J. and Myself, in the case of Union of India V/s. Harbans Singh, 1959-61 Pun LR 30: (AIR 1959 Punj 39), in which we allowed an appeal by the Union of India against a decree for damages passed in favour of the dependents of a man who had been fatally injured by a military vehicle. We held that the Union of India can be sued as provided under Article 300 of the Constitution, in relation to its affairs in the like cases in which the Dominion of India could be sued and that when the various Government of India Acts are referred to, ultimately it is found that the Union of India can be sued on the same basis as the East India Company could be sued.

The facts in that case were that a driver of the military department was driving a motor vehicles of the department under the order of his superiors of the Defence Forces and was using the vehicle to supply meals to military personnel on duty. It appears that in fact a situation has arisen in consequence of which some detachment of troops were posted at various places in the city of Delhi and the truck concerned, driven by a military driver, was in the course of a round for delivering ration to these soldiers when the accident occurred and the deceased received his fatal injuries. In these circumstances we held that the driver was acting in the exercise of the sovereign powers of the Union Government and therefore no action could be taken against Government.

5. A study of the authorities as a whole appears to indicate that the law on the point is fairly clear and well-settled, and that the decision of any case of this kind must depend on its own facts. The first of these decisions is in the case of the Peninsular and Oriental Steam Navigation Co. V/s. Secy. of State, 5 Bom HCR App 1. It was in that case that it was laid down that the Government of India would be liable for damages in the same circumstances as would have been the East Indian Company and this proposition has never been disputed. It was held that the Secretary of State in Council of India is liable for the damages occasioned by the negligence of servants in the service of Governmen