The State cannot be liable if the tortious act complained of had been committed by its servant in the exercise of its sovereign powers, by which it was meant, powers that could not be lawfully exercised except by a sovereign or a person by virtue of delegation of sovereign rights.

JUDGMENT :

S.S. SODHI, J.

1. On August 28, 1972 at about 9 A.M. a Military truck, coming from the side of Delhi went on to the wrong side of the road and hit into a culvert. There were four persons sitting on this culvert at that time. They all sustained injuries. One of them, namely Bhim Singh later succumbed to his injuries and died. The other Miss. Pushpa Thakur, suffered fractures on both of her legs leading to amputation of her right leg. This accident took place near the bus stop on the Delhi-Mathura road Sawil.

2. The Tribunal found that the accident here had taken place entirely due to the rash and negligent driving of the truck driver. A sum of Rs. 50,000/- was awarded as compensation to the claimant Miss. Pushpa Thakur for the injuries suffered by her and a similar amount, as compensation, to the legal representatives of Bhim Singh deceased.

3. This order will dispose of the two separate appeals filed by the Union of India challenging the award of compensation to the claimants in these two cases.

4. It was the contention of Mr. P.S. Duhan, Deputy Advocate General (Haryana) that the accident (in this case could not be attributed to any negligence on the part of the truck driver and at rate the Union of India could not be held liable as the accident occurred in the exercise of the soverign functions of the Union of India.

5. It is the common case of the parties that Miss. Pushpa Thakur, Bhim Singh, deceased, and two other persons were sitting on a culvert when the Military truck came on to the wrong side of the road and hit into it, causing injuries as mentioned above. The claimants blamad this accident upon the negligence of the truck driver, pleading, that it had been caused by his rash and negligent driving as it was being driven at a very fast speed without proper care. The plea of the Respondent-truck driver as also Union of India, on the other hand was that there was a bus standing in the middle of the road The driver of this bus all of a sudden moved his bus towards the right, thereby making it impossible for the truck driver to control his vehicle and the accident was, therefore, not caused by any negligence on his part. It was denied that the truck was being driven at a fast speed.

6. The version of the accident as per the case put forth by the claimants was deposed to by Miss. Pushpa Thakur, when she appeared in the witness box, as P.W. 4. It was her testimony that they were sitting on the culvert, while waiting for a bus going towards Delhi, when a Haryana Roadways bus came from Palwal and stopped on the other side of the culvert. All of a sudden, a Military truck came-from the same side, that is, the side of Palwal (Delhi) at a fast speed and hit into them. To a similar effect was the statement of P.W. 2 Mrs. F.B. Masih and P.W. 3 Smt. Vidya, who testified that they too were sitting on the culvert along with Miss. Pushpa Thakur and Bhim Singh, deceased, when this accident occurred. They too, it was deposed, received injuries at that time. Besides this there is the testimony of P.W. 7 Kishan Singh, Patwari, who stated that he was sitting at the bus stop when this accident occurred. According to him, the Military truck tried to pass between the standing bus and the cunvert, when it hit into the culvert where four persons were sitting. The bus, he stated, was parked on the left side on pucca road, that is, its correct side.

7. The driver of the Military truck appeared as P.W. 2 and deposed that he saw the bus parked on the left side of the road near the culvert, but just as he was to pass this bus, the driver thereof without giving any signal turned towards its right and then in order to avoid an accident with the bus, he diverted his vehicle towards the right and it then went and struck against the culvert. He accepted the fact that there were persons sitting on the culvert, who received injuries at that time.

8. What emerges from the evidence discussed above is that the Military truck went on to the wrong side of the