( 1 ) THIS is an appeal by the defendant, Union of India against the decree of the additional First Civil Judge, First Class, Jabalpur, in Civil Suit No. 85-B of 1950. This judgment shall also dispose of the plaintiff's cross-objection.

( 2 ) THE plaintiff-respondent, Bhagwatiprasad, was employed as a delivery-man by the Government Military Farm, Jabalpur. His duty was to supply milk to the customers. The milk used to be carried In a military truck. On 22nd November 1947, the plaintiff met with an accident when he was out on his duties. The driver of the truck was Kartarsingh (D. W. 3 ). It is not disputed that the plaintiff had fallen down from the truck and came under its hind wheel. He was in the hospital under treatment from 22-11-1947 till 26-1-1948. The injuries resulted in (1) fracture both pubic rami left, (2) fracture medical malleolus left tibia and (3)dislocation of right sacro-illic joint. The injury, according to Dr. Bishensingh (P. W. 2), has resulted in permanent disablement of the plaintiff to perform the duties as a delivery-man. The disability was found to be 40 per cent. See Ex. D-3.

( 3 ) THE case of the plaintiff was that on the date of the incident, he was sitting in the front part of the truck by the side of the driver. When the truck was in motion, one of the milk cans, which were kept behind, got titled. Accordingly the truck was stopped and he got down to arrange the milk can. After doing the needful, as he came back and was boarding the truck, the driver negligently put it in motion on account of which he fell down and came under the hind wheel He claimed damages to the extent of Rs. 8000/- for loss of earnings and Rs. 2000/- for bodily and mental suffering, total Rs. 10,000/ -. The suit was allowed by the lower Court to the extent of Rs. 8200/-, made up of Rs. 8000/.- for loss of earnings and Rs. 200/-on account of bodily and mental suffering. The plaintiff has filed cross-objection claiming Rs. 1300/- more as damages on the latter Count viz. , bodily and mental suffering.

( 4 ) THE liability of the Union of India was resisted on the doctrine of State immunity. It was urged that the military farm was run by the Government in its sovereign rights and accordingly the Union of India could not be made liable for the negligence of its servants. The liability of Government for the negligence of its servants was first considered in P. and O. Steam Navigation Co. v. Secy. of State, 5 Bom HCR App 1 (A ). That was a case of tort committed in the conduct of business in which it was held that the Secretary of State in Council could be sued. Sir Barnes Peacock, however, also dealt with the question of the liability of the Government where an act is done by its servants in the course of the exercise of powers which could not lawfully be exercised, save by the sovereign. The views which he expressed on this question were ultimately approved of by the judicial Committee in Secy. of State v. Moment, ILR 40 Cal 391 (B ). Summing up the law on the subject, Rankin C. J. , in Secy. of State v. " Shreegobind Choudhuri. TLR 59 Cal 1239: (AIR 1932 Cal 824)" (C), observed:

"this doubt as to whether the Secretary of State for India in Council can ever be sued in respect of tort was laid at rest finally in the following year 1912 by the judgment of the Judicial Committee delivered by Lord haldane in the case of ILR 40 Cal 391 (PC) (E ). There the. Government of Burma had an ordinary dispute with an individual about the ownership of certain landed property. It was finally decided that the property belonged to the individual, and the suit was an ordinary common law suit in tort for damages for wrongfully interfering with, the plaintiff's property. The local Act had purported to say that all claims to any right over lands as against Government should be brought in the revenue court and not civil court. The Privy Council held that that was ultra vires of the legislative authority of the local legislature and they held that a suit

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