Kumarayya, J.
1. This appeal arising out of a suit for damages against the State of Andhra Pradesh raises short but important questions of fact and law. The question of fact is, whether the accident resulting in the loss of the right wrist of the plaintiff was due to the negligence and rash driving of Mohiuddin, the road roller driver of the Highways department. The question of law which is of real importance is whether the Government is liable for this tortious act of its servant.
2. The facts of the case are few and may be shortly stated. On 15-12-1953, the plaintiff barely five years old was taken to his paternal uncle's house near Satyanarayana Talkies. It was a busy commercial place in Tenali town within the school zone it was about 3-45 p. in. and the plaintiff was then easing near the door steps of the house on the north of the road. The motor road roller was then seen plying fast on the road from the west to the eastern direction.
As it drew near the plaintiff felt a little under-tow of funk. He got up and was running into the house. But just then, the edge of the road roller struck him down and his right palm fell under the front wheel. The driver did not stop the engine forthwith. The result was the-hand of the boy was crushed up to the wrist. The boy was immediately rushed to a doctor nearby who gave him first aid. As per his advice, the boy was sent forthwith to the Government hospital where he was operated upon and his hand was amputated up to the wrist.
The plaintiff was treated for injury 13 days as in-patient and about 2 months as outpatient. The driver gave a report of the accident to the police station on that very day. He however disappeared thereafter. His whereabouts remained untraceable. The plaintiff through his next friend gave a notice to the Government claiming damages for the permanent loss of his limb occasioned by the rash act of their servant. Then he brought a suit before the Subordinate Judge, Tenali, for recovery of Rs. 10,000/-by way of damages.
3. The Government in defence pleaded that the driver was not guilty of negligence or rash driving and the accident was inevitable, that even otherwise action in damages lay only against the driver and that the suit as against the Government for the tortious acts of its servants is untenable in law and further in any event, the damages claimed are excessive.
4. The trial court after examining five witnesses on behalf of the plaintiff and two on behalf of the defendant came to the conclusion that the accident was the direct result of the negligence and rash driving of the road roller driver and that it was not true that it was inevitable, for it could be avoided with ordinary skill and care. He also came to the conclusion that the damages claimed are reasonable and in no way excessive for the disability incurred is permanent and the plaintiff has to suffer its consequences for many a long year to come. Despite such findings in favour of the plaintiff, the learned Subordinate Judge could not help dismissing his claim for the Government in law, is not liable for the tortious acts of its servants. Aggrieved by this, the plaintiff has come up in appeal.
5. We may at once state that the finding on the question of fact reached by the trial court is unassailable. No doubt, the report given by the driver shows that the hand of the boy came before the rear wheel, The unimpeachable testimony of disinterested wit-nesses present at the scene clearly establishes that the front edge of the road roller struck the boy down to the ground, the palm of his right hand came beneath the front wheel and as the roller moved further it was crushed.
It was not as though the boy was crossing the road then. He was well on the side of the road. It was indeed the negligence and careless driving of the driver that was responsible for the accident. A slight care and ordinary skill which is normally expected of a driver would have easily averted this accident. The driver ought to have realised that it was a busy locality and it was incumbent on him to drive cautiously at convenient speed.
It was necessary for him to regulate the speed in a manner as to enable him to put his break effectively at the slightest warning. He should have looked to the sides in the front. That would have prevented the collision with the boy. If the breaks were under his control, the roller would have been at once brought to a dead stop. But P. W. 4 who is the cleaner sitting along with the driver has in clear terms deposed that the driver was running the roller fast in an unusual speed for they had not yet taken their food that day and had also to go to Guntur.
It is also clear from his statement that the roller was stopped only after the event though timely alarm was raised by the persons present which if taken might perhaps have prevented the loss of the limb. He says the boy was easing himself on the right side of the road. He was facing south. He was frightened by the roller and wanted to go inside the house. As he got up, the roller hit him down.
The corner of the angular of the front portion pushed against the back of the boy but the engine was not stopped. The boy was bleeding then. P. W. 2 a blacksmith on his duty nearby adjacent to the road, described the accident almost in similar terms. Similar is the case with P. W. 3 who was going along with the road towards the west at the time. He too describes that the engine was coming at a speed and the bumper pushed the boy down.
The driver did not stop the engine though the witness also cried out 'boy, boy' and the roller went over the hand of the boy. After the accident, the driver and cleaner sot down. He further says that the injury mark on the back of the boy was due to the push. In his cross-examination, he says the boy fell down 1/2 yard from the drainage and the bumper is about 1/2 yard in height from the ground.
P. W. 5 the doctor who examined the boy immediately after the incident vouches for an injury on the right side of the spinal cord received at the time which has left a deep scar still prominent to be seen. The clear and unambiguous testimony of these witnesses leaves no doubt in our mind that the boy was first hit by the edge of the roller and then as he fell his right palm was crushed under the front wheel of the roller and this accident was due to the rash driving of the defendant's servant.
6. The question then would be, whether the defendant is liable for the act of the driver. It is not disputed that the driver was in the employment of the defendant when the accident took place. Had it been a case of an ordinary master and servant, the question of liability would have presented no difficulty for it is well settled that a master is liable for the tortious acts of his servant, if it is proved that the relationshle of master and servant did exist at the time of the act complained of and that the act was committed in the course of the employment of the servant: see Canadian Pacific Ry. Co. v. Leonard Lockhart, AIR 1943 PC 63.
This responsibility the master incurs by reason of the doctrine of vicarious liability. That doctrine seems to be based on broader grounds of public policy for it also' tends' to develop with the growth and development of social and political life. Dealing with the idea behind this doctrine, Brougham in Duncan v. Find later, (1839) 6 Cl and F 894 and 910 observed:
'the reasons that I am libale is this: that by employing him I set the whole thing in motion and what he does being done for my benefit and under my direction, I am responsible for the consequences of doing it'.
That may still be an adequate explanation of the doctrine but is not complete unless it is subjected to two qualifications which have become necessary with the progress of conditions ever since. Salmond in his book on Torts (12th edition) at page 101 has referred to these two qualifications. They are: (i) the master may be liable even though the act or default is not for his benefit and even though he expressly prohibited it; and (ii) the master's right of control is the criterion of the existence of relationship which gives rise to vicarious liability.
It is plain therefore in order to attack vicarious liability it is necessary that the act complained of must be a civil wrong done by a servant during the course of his employment. The question then is, whether the liability of this kind extends to the Government and the sovereign bodies. The law of Torts in India has never been codified. Its application in India is based on 'common' law principles. This adjective 'common' denotes the law common to the whole of England. It is mostly unwritten law. The basic common law principles were originally established by Judges when they decided cases on the theory that they were declaring the customary law of the Kingdom.
Most of the fundamental principles of constitutional law of England which maintain the freedom of the subject and limit the power of the servants of the Crown are to be found in Common Law. The English common law has had a tremendous impact on the Indian Laws. But it was never applied here indiscriminately. Modifications were always found necessary to suit the local conditions. The law of torts in England as in India is uncodified. As the classic writer Professor Dicy said;
'Nine tenths of the law of contract and nearly the whole of the law of torts (which are civil wrongs) are not to be discovered in any volume of statutes'. According to the basic common law principles, no action lies against the Crown for tortious acts done by its servants. This probably is due to the application of the well-known mixims either 'the king can do no wrong' or 'the king cannot be sued in his own courts'. The subjects had only a limited right against the Crown and this related to the recovery of real or personal property or cases of breach of contract.
Even this right could be enforced only by way of Petition of Right. It was impossible to sue the Crown for tort either for wrongs which it had expressly authorised or for the wrongs committed by its servants in the course of their employment. Of course, the individual wrong doer was liable and could not plead the commands of the King or State necessity as a defence. This position however was unsatisfactory especially because the Crown became one of the largest employers and occupiers of the property in the country.
Resort was therefore made to various devises to ensure substantial justice. Eventually the Crown Proceedings Act of 1947 was passed which came into force on 1-1-1948. This Act negatived to a remarkable degree the theory of immunity of the Crown for the torts of its servants and dispensed with the special procedure of Petition of Right Although the object of this Act was to place the Crown in the same position as a private subject even in respect of torts committed by its servants and agents, there were however practical difficulties in the way to treat the Crown in all respects in exactly the same way as a private employer.
As a result, under its provisions the liability was qualified by several conditions and was restricted to cases of servants and officers appointed by the Crown, directly or indirectly, and paid wholly out of certain funds specified in the Act. There are further special provisions saving the Crown from the proceedings in connection with the acts or omissions of persons discharging judicial duties or executing judicial processes and of servants or agents of postal, telephonic communication or members of the armed forces etc.
The Act nevertheless is an important landmark in the history of development of rights of the subject as against the Crown. The subjects got twofold benefits thereunder. The ancient rule of immunity of the Crown from tortious liability was abrogated and the Act brought about a revolutionary change in matters of procedure to the convenience of the subjects.
7. The law in India however has been surprisingly static. It is still almost the same as it was in or about the year 1858 when the Sovereignty under the Government of India Act passed to the Crown in England. At no time, it would appear the law in India in this behalf was identical with that in England. It is true as already observed the law of torts in India is based on common law principles ot England.
But modifications therein were found always necessary to suit the conditions here. It must also be remembered sovereignty is an essential attribute of the State. It is supreme within its territory. It is not amenable to the jurisdiction of its Courts save to the extent of its submission by consent. The rights of the subject as against it which may be enforced through courts must therefore mainly depend upon the assent of the State to the extent it is given.
Besides, it must further be remembered that the English did not come to India originally as sovereigns and their acquisition of sovereignty has been gradual and by imperceptible stages. They had dual functions to perform their being primarily a trading or commercial concern. The common law principles which they sought to introduce at some convenient point or points of time could not possibly be applied in all their integrity to the local conditions which were substantially different.
That is how the law in India has been in many respects different. The reasons therefore are of course, mainly historical but there were other grounds also. In order to understand what the law was at the time the Government of India Act was passed, it is expedient to give a short sketch of the origin and development of the Sovereignly and Common Law principles in India regulating the rights of the subjects against the Government.
8. The English first came to India as trading companies under a series of Charters granted by English sovereigns from time to time. The earliest of the kind was granted in 1600 which gave the company power to make reasonable laws for the good government of the company and its officers subject to the condition that they were not contrary to the laws, statutes and customs of England. The second Charter granted by Charles II empowered, the company to exercise civil and criminal jurisdiction in their settlements called factory areas according to English law.
These factories which were gradually fortified were treated as English territory even though no sovereignty was claimed and that of the Indian. Rules was acknowledged. Then the courts called Mayor's Courts were established in 1726 but their authority was restricted to English subjects and to-such Indians as submitted to their jurisdiction, This is how, as observed by the Privy Council in Advocate General of Bengal v. Rani Surnomoyee Dossee, (1863) 9 Moo Ind App 387 at 426, the common law of England was introduced into India.
In 1765 Lord Clive persuaded King Shah Alam to grant to the company at Calcutta Firman for the collection of revenues of Bengal, Bihar and Orissa. This further facilitated the establishment of courts. to administer civil and criminal justice. The Privy, Council observed in Mayor of Lyons v. East India Co., (1836) 1 Moo Ind App 175 at 177, and also in (1863) 9 Moo Ind App 387 that it was not possible to say when and how the English acquired sovereignty over India and all that could be said was that it was done by imperceptible stages and that it was acquired some time before 1813.
Between the years 1765 and 1774 the English. Company, the East India Company which was primarily a trading company decided to assume to themselves the sovereign powers that had been conceded by the Moghul Rulers of India and they established Supreme Courts at Madras, Bengal and Bombay between 1774 and 1823 empowering thereto decide suits against all inhabitants of their areas, Then came the Charter Act in 1833 as a result of which it ceased to be a mercantile corporation and held the Government of India in trust for the Crown.
Then in 1858 came the Government of India Act oft the transfer of the Government of India from the company to the Crown in England. This, in short, is the history of the sovereignty of the company and its relations with the subjects. The company, as already stated, was engaged in the discharge of dual duties of carrying on trade and business which was the primary purpose of their coming to India and also of administering the territories which gradually came into their jurisdiction after the grant of Diwani by the Moghuls in 1763. In this manner, they had to discharger the duties which were purely fiscal and commercial in character and also the duties that may be attached to sovereignty in relation to the territories within their jurisdiction.
As a matter of fact, ever since the Charter Act of 1833, the company held the Government of India in trust for the Crown. On the transfer of government from the East India Company to the Crown in 1858, came the Government of India Act (Acts 21! and 22 Vict. C. 106). That statute declares for the first time in its section 65 the lights and liabilities of the Secretary of State for India to sue or be sued. Section 65 reads thus:
'65. The Secretary of State in Council shall and may sue and be used as well in India, as in England by the name of the Secretary of State in Council as a body corporate; and all persons and bodies politic shall and may have and take the same suits, remedies and proceedings, legal and equitable, against the Secretary of State in Council of India as they could have done against the said Company; and the property and effects hereby vested in Her Majesty for the purposes of the Government of India, or acquired for the said purposes, shall be subject and liable to the same judgments and executions as they would while vested in the said Company have been liable to in respect of debts and liabilities lawfully contracted and incurred by the said Company.' Sections 65 and 65 read thus:
'66. The Secretary of State in Council shall, with respect to all actions, suits, and all proceedings by or against the said Company pending at the time of the commencement of this Act, come in the place of the said company, and that without the necessity of substituting the name of the Secertary of State in Council for that of the said Company.
67. All treaties made by the said company shall bo binding on Her Majesty, and all contracts, covenants, liabilities, and engagements of the said Company made, incurred, or entered into before the commencement of this Act may be enforced by and against the Secretary of State in Council in like manner and in the same Courts as they might have been by and against the said company if this Act had not been passed.'
This would show that the subjects had a right to sue the East India Company when it was exercising the sovereign powers, though as a delegate and the same rights are still available on the transfer of power to the Crown. As the Queen cannot be sued in its own Courts, the rights of the subjects were safeguarded by a declaration that all the rights and liabilities had devolved on the Secretary of State as successor to the East India Company and that be could sue and be sued in India as in England as the representative of the old East India Company. What was the extent of these rights, we will discuss presently. It is sufficient to state at this stage whatever the rights of the subject they were fully guaranteed by this Act. There were certain Acts passed subsequently also. They too have maintained this right of the subjects. Not only the Government of India. Act 1915 in its section 32 has made such a provision but also the Government of India Act 1935 in its See. 176(1) which reads thus :-
'(1) The Federation may sue or be sued bythe name of the Federation of India and a Provincial Government may sue or be sued by thename of the Province, and, without prejudice tothe subsequent provisions of this chapter, may subject to any provisions which may he made by Actof the Federal or a Provincial Legislature enactedby virtue of powers conferred on that Legislatureby this Act, sue or be sued in relation to their respective affairs in the like cases as the Secretaryof State in Council might have sued or been suedif this Act had not been passed. (2) X X x x x.'
The Constitution of India has further guaranteed, this right. Of course provision is made under Articles 299(2) and 361(1) for the protection of the President and the Governor but Article 300(1) gives guarantee against the Government and it reads thus:--
(1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue-or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian. States might have sued or been sued if this Constitution had not been enacted.
X X X X X The second proviso to Article 361(1) reads thus:-
'Provided further that nothing in this caluse shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State.' It is plain that the subject's right to sue the Government continues as ever and it is subjected to such-provisions as may be made, by the Parliament or State legislature. It is common ground that no provision as contemplated by Article 300 has yet been made by the Parliament or State legislature. It is therefore, clear that the extent of the liability of the Government of India is the same as it would have-been of the East India Company had the act been-committed before 1858.
9. What then was the scope of this liability of the Government before 1858? This matter-came up for consideration as early as in the year 1861 in Peninsular and Oriental Steam Navigation Co. v. Secy. of State, 5 Bom II. C. R. App. 1. It was held that the Secretary of State for India in Council is liable for damages occasioned by the negligence-of servants in the service of Government if the negligence is such as would render the ordinary employer liable.
In this manner, the Government and a private employer were placed on the same level in matters of tortious liability. But while the principle of liability in torts was recognised it was limited to acts other than in exercise of or incidental to sovereign powers. A distinction was drawn between the acts which are governmental and the acts which-are commercial, for the company which was primarily a commercial concern had to discharge the dual functions of both as a company and as the delegate of sovereign authority. It was observed by Lord Peacock C. J.;
'There is a great and clear distinction between acts done in the exercise of what are usually termed sovereign powers and acts done in the conduct of undertakings which may be carried on by private individuals without having such powers-delegated to them. ...... Where an act is done or a contract is entered into in the exercise of powers usually called sovereign powers by which we mean powers which cannot be lawfully exercised except by a sovereign, or a private individual delegated by a sovereign to exercise them, no action will lie.'
10. It is plain therefore that the Government enjoyed immunity from proceedings against the tortious acts of its servants only if they were committed in the exercise of sovereign powers i.e., a power which cannot be lawfully exercised except by the sovereign authority of persons to whom the sovereign authority may delegate these powers. But if the act causing the wrong was done in carping on an ordinary business which might be carried on by any person such acts being mercantile operations of the kind in which the East India Company as a trading company actually engaged itself before and even after obtaining sovereignty, no immunity can be claimed.
This principle was in substance approved of and followed in almost all the subsequent reported cases -- see Secy. of State v. A. Cockcralt, ILR 69 Wad 351 : (AIR 1915 Mad 993); Etti v. Secy. of State, ILR (1939) Mad 843 : (AIR 1939 Mad 663); Maharaja Bose v. GovernorGeneral-in-Council, : AIR1952Cal242 ; Bata Shoe Co. v. Union of India, : AIR1954Bom129 ; State of Bihar v. Rani Sonabati Kumari, AIR 1954 Pat 513; and District Board of Bhagalpur v. Province of Bihar, AIR 1954 Pat 529. We do not think it necessary therefore to deal at length with this principle.
11. It follows that in attaching the vicarious liability in torts to the State, it is necessary to asertain whether the acts complained of or the acts in exercise of governmental powers which cannot be lawfully exercised save by the sovereign authority or by the persons to whom the sovereign authority might delegate such powers, or are they such acts as are done by the Government in pursuance of ventures which a private individual might undertake equally well.
The acts of the latter class are mercantile operations and the reason why an action lies against the Crown with reference to acts of this type is as also observed by Chakravarti, J. in Uday Chand v. Province of Bengal, 51 Cal WN 537, because such actions in fact could lawfully be brought against the East India Company at the relevant time and also because a specific provision saving the right of action in such cases has been made in all subsequent Government of India Acts. The acts done in the exercise of governmental powers may fall under different categories. Chakravarti, ). In the case cited described them as below:
'One class are acts of State, properly so called, such as making a treaty, commandeering private property for war purposes, or quelling civil disturbances by force. Such acts are never justiciable in Courts of law and since the Crown itself is not answerable for such acts in its courts, there is no principle upon which it could be made liable for the acts of its officers or subordinates. The immunity is absolute. The other class of acts are those which are done under the sanction of some municipal law or statute and in exercise of powers thereby conferred. This class can be sub-divided further into two Classes (1) those consisting in detention by the Crown of land, goods or chattels belonging to the subject and (ii) those done by officers of the Crown In the discharge of their official duties.' With regard to acts of the first sub-class, an action would lie In the Courts in India and it would seem that even in England, a petition of Right would lie. With regard to acts in sub-class (ii) however, no action would lie except in cases where it can be proved that the impugned act had been expressly authorised by the Crown or that the Crown had profited by its performance. ..'
It is not necessary for purposes of this appeal to enter into a detailed discussion as to the various exceptions to this immunity rule. It is sufficient for our purpose to ascertain whether the driver of the roller was engaged in a business or undertaking nongovernmental in character when he had committed the civil wrong. The driver is an employee in that branch of P. W. department which is entrusted with the work of the highways.
D. W. 1 who is the local Assistant Engineer, Highways, Tenali Taluk, says that Tenali was the headquarters for his circle from where the road rollers are sent and to which place they must come back in due course as their place of halt is the office compound, that the road roller was working in Sattenapalli Sub Division and on the day is question it was being taken back to the place of halt in the office compound. It is clear that the road roller belonged to the P. W. D. a government department and the driver was a servant of the Government at the time the act complained of was committed.
It is also evident that the road roller was being used for the maintenance of highways and was returning from its duty to the place where it should be kept. Making and maintenance of highways is a public purpose and the duty of the Government and not a commercial undertaking. In that case, in the present state of law, no question of liability for the wrong done would attach to the Government. In ILR 39 Mad 351: (AIR 1915 Mad 993) the question arose whether the maintenance of roads by the Public Works Department was a Governmental duty.
It was held by the Chief Justice that the provision and maintenance of roads is one of the functions of the Government though in India it may row be largely delegated by statutes to municipalities and local bodies. Seshagiri Ayyar, J. came to the same conclusion and observed on the basis of the authorities of American law that the laying of roads is a governmental or sovereign function. It is argued that the road in question there was a military road and the case therefore is distinguishable.
We fail to see how maintenance of highways which is the exclusive duty of the Government can in any manner be treated different in its nature from the maintenance of the military road. It is the nature of the duty in discharge of which the act was committed that becomes material. In ILR (1938) Mad 843: (AIR 1939 Mad 663) the question arose whether the Government which was maintaining the hospital for women and children was in performing that act discharging the functions of the Government.
The answer was In the affirmative. It is a known fact that the Union of India and also the Government of Slates have set before them the ideal of a welfare state. It may be while achieving this purpose the governments may undertake to do many acts which in the hands of private agency may assume the character of commerce or trade; but on that account alone the nature of the undertaking docs not cease to be a governmental undertaking for governmental purpose.
The idea here is not profit making and the purpose is public purpose. In a scheme for nationalisation many of the essential services which state undertakes to do may as well be construed as business in the hands of private agencies; but are these activities in any manner having regard to the goal of the government for the proper administration of the State devoid of the characteristic of its being done in discharge of the duties of the Government. It is not merely the nature of the work but its relation to the duties of the Government having regard to the goal of the Government that lias to he kept in view. There can be no doubt about the fact that the making and maintenance of national highways is the exclusive duty of the Government.
On the principle already stated the Government is not in law within the rule of vicarious liability in Relation to the tortious acts of its servants in the discharge of such duties.
The plaintiff can have his relief as against the person whose acts of commission or omission have given rise to the cause of action. It is unfortunate that a boy of tender age, barely five, has been disabled for ever by the rash and negligent act of the driver. It would naturally rouse up feelings of deep commiseration for him because rendered thus disabled he has to enter the battle of life with no resources of due equipment and no provision to fall back upon in times of need.
Of course a remedy in tort was open to him against the driver but that would have proved a poor recompense for the probable loss that he sustained. Had the employer been other than the Government, he would have hoped for an adequate compensation. It is unfortunate that the Government being the employer he has to look in vain for some appropriate provision which may afford a just and adequate relief.
Article 300 of the Constitution contemplates nodoubt a provision to be made by the Parliament orState Legislature and this provision in all probabilityis intended to meet the ever-growing needs of thesubjects in a social welfare state. But in the absence of any such enactment, the old state of law asavailable in the year 1858 has yet to prevail. Theappeal therefore has to fail. It is hereby dismissed.No order as to costs.