The State is not absolutely immune from liability for tortious acts of its servants merely because the act complained of may have been done in the exercise of governmental or executive power.

S.S.Dulat, J.

1. Two questions of law have been referred to this Full Bench by a Division Bench of this Court.

2. The facts are that on the 15th August, 1950 a truck belonging to the Public Works Department of the Punjab and driven by Durga Dass driver in the employment of the Department struck against a motor cycle ridden by Rup Ram, and in the result Rup Ram was thrown off the motor-cycle and seriously injured and his right leg had later to be amputated. Rup Ram, therefore, brought a suit for recovering compensation for the injuries sustained by him alleging that the injuries were caused by the rash and negligent driving of the motor-truck by its driver, and he claimed that compensation was payable to him not only by the driver but also by his master or employer, being the Punjab State.

3. In answer to this claim the Punjab State, among other things, pleaded that the truck in question was at the time of this incident engaged in carrying certain material for a road bridge in connection with the exercise of the sovereign powers of Government which Government alone could exercise, and in those circumstances the Punjab State was not liable for the tortious act, if any, of its servant.

4. The trial Court found that the driver of the truck was negligent and his negligence had resulted in injuries to the plaintiff and the plaintiff was entitled to receive compensation by way of damages which the Court assessed at Rs. 7,000/-. Regarding the liability of the Punjab State, the Court found that the truck was actually carrying some iron angles to a go down but that material was later to be used in building a bridge on a public highway and the building of such a highway was the exercise of sovereign powers, and, in view of the authorities, the Punjab State could not be held liable for the negligence of its servant. The result was that the plaintiffs suit was decreed against Durga Dass driver to the extent of "Rs. 7,000/- and proportionate costs, while the suit as against the Punjab State was dismissed.

5. Rup Ram appealed to this Court and the appeal came up for hearing before a Division Bench of which one of us was a member. The Bench, being satisfied that the truck driver had been negligent and had committed a tort, held that the plaintiff was entitled to receive compensation for the injuries suffered by him. The main question in the appeal, however, concerned the liability of the Punjab State and on that question the Division Bench found that there was some conflict in the decided cases and it was not clear if the truck drivers act was done in the course of the exercise of the States sovereign powers. The Division Bench therefore, framed the following questions to be decided by a Full Bench:

(1) Does the tortious act of defendant No. 2 (Durga Dass driver) in the present case fall within the category of acts done in the course of exercise of what are usually called sovereign powers of the State?

(2) Can the Punjab State be held liable for damages for the tortious act in question?

6. The two questions are interconnected, and it is agreed before us that if we can directly answer the second question the first would be of no consequence. The wording of the first question was apparently suggested by the decision in The Peninsular and Oriental Steam Navigation Co. V/s. Secy. of State for India, which has been accepted as the leading authority in such cases and is reported in Appendix A, 5 Bom. H. C. R. App 1. It was a decision by the then Supreme Court at Calcutta.

A servant of the plaintiff-Company, that is, the Peninsular and Oriental Steam Navigation Company, was going in a carriage along a road in Calcutta where certain workmen working at a Government dockyard happened to be carrying a piece of iron casing which those workmen negligently dropped on the road and in the result the horses drawing the carriage were frightened and one of the horses was seriously injured. The suit was brought by the plaintiff Company to recover Rs. 350