# SHY AM SUNDER AND OTHES R v. THE STATE OF RAJASTHAN March 12,. J974

- **Citation:** [1974] 3 S.C.R. 549
- **Court:** Supreme Court of India
- **Decided:** 1974
- **Case number:** Civil Appw.l No. 1827 of 1967
- **Bench:** K. K. Mathew, A. Alagiriswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shy-am-sunder-and-othes-r-v-the-state-of-rajasthan-march-12-j974-6107
- **Pages:** 7

## Headnote

549.
Fatal Accidents Act, 18SS, See. 1-A-Accitknt 1esulting from truck catching firtOccupant dying of injuries sustained in jumping out of truck on caution by drive -
Maxim res ipsa /oquitur-App/icability of Constitution of India, Art. 300-Tortious
IUWility of state- Held, fami'ne relief work not a sovereign funclf!'n.
The deceased, who was at the material tinle in the en1ployment of the State of
Rajasthan in the Public Department, was required to proceed from his office at·
Bhdwara to Banswara, in connection with famine relief work undertaken by the
department. For that purpose, he boarded a truck owned by the department from
Bhilwara on,May 19, 1952 with six others.. Throughout the journey the radiator of
the truck was gettiog heated frequently and the driver was pouring water into it after·
overy .6 or 7 miles of journey. The truck took nine houn to travel the distance or
seventy miles.
After having travelled four miles from Pratapgarh, the engine of
the truck caught fire.
As soon as the fire was seen, the driver cautioned the occu·
pants to jump out of the truck. Consequently, they did so. The deceased struck
against a stone Iyina by the side of the road and died instantaneously.
The widow of the deceased brought a suit for damages against the State of
Rajasthan under the provisions of the Act. The plaintiff alleged, inter a1ia, that it
was on account of the negliaence of the driver of the truck that a truck which was not
road-worthy was piit on the road and that it caught fire which led to the death of
her husband and that the State was liable for the negligence of its employee in the
course of his employment. The plaint also alleaed that the deceased had left behind
him his widow name]yt the etaintiff, two minor sons, one minor daughter and
his parents. The plaiotilfclatmed damaaes to the tune of Rs. 20,<XXJ/. and prayed
for a decree for that amount. The state resisted the claim denying negligence of
the driver and plea.din& sovereign immunity.
The trial Court relied on the maxim res ipsa /oquitur, found that in putting the
truck on the road the driver was negligent as the truck was not road-worthy and sine
the driver was negligent, it held that the State was vicariously Hable for his a.ct.
Th4; court assessed the damages at Rs. 14,7flJ/· and granted a decree for the amount
to the plaintiff. Against this decree the state appealed to ~he High Court. On the
evidence on record, the High Court held that the principle of res ipsa /oquitur had no
3pplication to the facts- of the case.
Accordingly, the High Court allowed the appea1. On appeal by special leave·
to thi~ Court.
HELD : (I) Generally speaking· an ordinary road·worthy vehicle would not
cateh fire. The driver was nea].igent in putting the vehicle on the road. From the·
evidence it is clear that the radiator was getting heated frequently and that the driver
was poui-ing water in the radiator after every 6 or 7 miles of journey. The vehicle--
took 9 hours to cover the distance of 70 miles between Chittorgarh and Pratapgarh.
The fact that normally a m:otor vehicle would not
catch fire if its
mechanism
is in order would indicatC that there was some defect in it. The Distt. Judge.
found on the basis of evidence of witnesses that th~ driver knew about this defec.._
tive cOndition of the truck when he started from Bhtlwara. [5540-FJ
It is clear that the driver was in management of the vehicle and the accident is
sw:h that it does not happen in the ordinary course of th!ngs. There is no evidCnceas to how the truck cauaht fire .. There was no explanatton by the defendant about':!:
it It was a matter within the exclusive knowlcdce of the defendant. It was not..
~ible rOr _the plainti« to _give any evid~e a~ to the cause of the accident.
these circumstances, the maxun rts ipsa loqurt11r 1s attracted. [S~4F-G]
,
'550
SUPREME COURT REPORTS
(1974l 3 s.c.R.
The 1naxiin docs not embody any rulC of substantive law nor a rule of evide-
·n:c. It is perhaps not a rule of any kind but si

## Text

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SHY AM SUNDER AND OTHES R
v.
THE STATE OF RAJASTHAN
March 12,. J974
[K. K. MATHEW AND A. ALAGIRISWAMI, JJ.]
549.
Fatal Accidents Act, 18SS, See. 1-A-Accitknt 1esulting from truck catching firtOccupant dying of injuries sustained in jumping out of truck on caution by drive -
Maxim res ipsa /oquitur-App/icability of Constitution of India, Art. 300-Tortious
IUWility of state- Held, fami'ne relief work not a sovereign funclf!'n.
The deceased, who was at the material tinle in the en1ployment of the State of
Rajasthan in the Public Department, was required to proceed from his office at·
Bhdwara to Banswara, in connection with famine relief work undertaken by the
department. For that purpose, he boarded a truck owned by the department from
Bhilwara on,May 19, 1952 with six others.. Throughout the journey the radiator of
the truck was gettiog heated frequently and the driver was pouring water into it after·
overy .6 or 7 miles of journey. The truck took nine houn to travel the distance or
seventy miles.
After having travelled four miles from Pratapgarh, the engine of
the truck caught fire.
As soon as the fire was seen, the driver cautioned the occu·
pants to jump out of the truck. Consequently, they did so. The deceased struck
against a stone Iyina by the side of the road and died instantaneously.
The widow of the deceased brought a suit for damages against the State of
Rajasthan under the provisions of the Act. The plaintiff alleged, inter a1ia, that it
was on account of the negliaence of the driver of the truck that a truck which was not
road-worthy was piit on the road and that it caught fire which led to the death of
her husband and that the State was liable for the negligence of its employee in the
course of his employment. The plaint also alleaed that the deceased had left behind
him his widow name]yt the etaintiff, two minor sons, one minor daughter and
his parents. The plaiotilfclatmed damaaes to the tune of Rs. 20,<XXJ/. and prayed
for a decree for that amount. The state resisted the claim denying negligence of
the driver and plea.din& sovereign immunity.
The trial Court relied on the maxim res ipsa /oquitur, found that in putting the
truck on the road the driver was negligent as the truck was not road-worthy and sine
the driver was negligent, it held that the State was vicariously Hable for his a.ct.
Th4; court assessed the damages at Rs. 14,7flJ/· and granted a decree for the amount
to the plaintiff. Against this decree the state appealed to ~he High Court. On the
evidence on record, the High Court held that the principle of res ipsa /oquitur had no
3pplication to the facts- of the case.
Accordingly, the High Court allowed the appea1. On appeal by special leave·
to thi~ Court.
HELD : (I) Generally speaking· an ordinary road·worthy vehicle would not
cateh fire. The driver was nea].igent in putting the vehicle on the road. From the·
evidence it is clear that the radiator was getting heated frequently and that the driver
was poui-ing water in the radiator after every 6 or 7 miles of journey. The vehicle--
took 9 hours to cover the distance of 70 miles between Chittorgarh and Pratapgarh.
The fact that normally a m:otor vehicle would not
catch fire if its
mechanism
is in order would indicatC that there was some defect in it. The Distt. Judge.
found on the basis of evidence of witnesses that th~ driver knew about this defec.._
tive cOndition of the truck when he started from Bhtlwara. [5540-FJ
It is clear that the driver was in management of the vehicle and the accident is
sw:h that it does not happen in the ordinary course of th!ngs. There is no evidCnceas to how the truck cauaht fire .. There was no explanatton by the defendant about':!:
it It was a matter within the exclusive knowlcdce of the defendant. It was not..
~ible rOr _the plainti« to _give any evid~e a~ to the cause of the accident.
these circumstances, the maxun rts ipsa loqurt11r 1s attracted. [S~4F-G]
,
'550
SUPREME COURT REPORTS
(1974l 3 s.c.R.
The 1naxiin docs not embody any rulC of substantive law nor a rule of evide-
·n:c. It is perhaps not a rule of any kind but simply a caption to an agrun1cnt on
the evider.ce. The maxim is only a convenient label to apply to a set of circumstances, in which the plaintiff proves a case so as to call for a rebuttal from the
defendant without having to allege any specific act or omission on the part of the
defendant. Jts principal function i's to prevent injustice which would result if.
a plaintiff were invari::tbly co1npellcd to prove the precise cause of the accident and
the dcfend:i.ut r·~Sponsible for it, even v.·hen the facts bearing on the matter arc at the
outset unl:no·vn to him and often within the knowledge of the defendant. The
1naxim is based on commonsense and its purpose is to do justice when the facts bear·
ing on causation and on care exercised by the <lefenclant are at the outset unknown
lo the plaintiff and ure or ought to be within the
knowledge of the defendant.
!k52F-553 CJ
The plointiff r:ierely proves a result, not any particular act or omission prodi..·
cing the result. Jf thC result, in clrcumstances which he proves it makes it more prob·
able than not that it was caused by the negligence of the defendant, the doctrine
of re~ ipsa (Jq11itur is said to apply, and the plaintiff will be entitled to succeed un·
less the defendant by evidence rebuts that probability.
R's dispa loquitur is an im·
inensely important vehicle for importing strict liability into negligence cases.
'[583 C-D, 584 Fj
ScorJ. v. London & St. Catherine Docks [18651 3 H. & C. 596, 601, {t9i3) S. C.
·(I-IL) 43, Barkwav v. South ~Vales Transport [1950J 1 All·E.R. 392, Jones v, Gr,at
IVester11, [1930] 7 TLR 39, referred to.
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(fl) As the law stands today, it is not possible to say that famine relief work is
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a sovereign function of the State as it has been traditionally understood. Jt is a
work which can be and is being undertaken by private individuals. There is nothing
peculiar about it so that it might be predicated that the State alone can legitimately
·undertake the work. [555 E-FJ
Kasturi/a/ v. Sta.le of Uttar P1·adesh [1965] 1 S.<;:.R. 375, referred to.
QL1aere : (a) Whether the immunity of the State for injuries on its i.;itizens
committed in the exercise of what are called sovereign functions has any m91·aJ justiE
fication today; (b) whether there is any rational dividing line between the so-called
sovereign and proprietary commercial functions for determining the 1iubility of the
state. [555 B-C, E]
Se:n1:llc: The m:iiern sovereign immunitv doctrine which is based on the )!round
that there con be no le~al right as a~ainc;t the authority that mak.es the law on
·which the right depends, for exempting the sovereign from suit is neither logical nor
;practical. [555 D-E].
CJvIL
APPELLATE
JURISDICTION:
Civil Appw.l No.
1827 of
1967.
App,al by spocial leave from I.he judgment and order dated the-,
'29th April 1966 of the Raja<th~c High Court at Jodhpur in D. B.'
·Civil Regular First Appeal ~"· 48 of 1957.
U. N. Trivedi and Ga.ipat Rai, for the Appellants.
Sobhagmal Jain, for the respondent.
The Judgment of the Court was delivered by
MATHEW, J.
This is an appoal by special leave, against the
iudgment and decree of the High Court of Rajasthan, setting aside
decree for recovery of damages under the Patel Accidents Act, 1855
<(hereinafter referred to as the Act).
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SHYA!v1 SUNDER v. RAJASTHAN (l'vt:.d1c,t,. J)
551
Navneetlal was a resident of Udaipur.
He was in the emplovment of the State of Rajasthan and was, at the material time, worki,;g
in the office of the Executive Engineer, Public Works Department,
Bhilwara as a Store Keep or. In connection with the famine relief works
undertaken by the department he \Vas required to piocced to B(l.nswara. For that purpose he boarded trnck No. RJE-131 owned by
the deportment from Bhihve.re on
May 19,
1952 and reached
Chittorgarh in the evening.
Re~id~s hiJn~eif, there \'i'ere FD.tch Singh
FundjJal and Hccra Sing:1, the dnver, cleaner and a stranger jn the
truck. On May 20, 1952, they resumed the journey from Chittorgarh
at
about 11 A.
M. and reached
Pratapgarh in the same
evening.
The truck ·started
fro1n Pratapgarh to
Bans\V<~ra at
about IO A.M. on May 21,
]952. After having
travelled for
4 miles fro:n Pratapgarh, the
engine of the truck caught lire.
As
soon as the fire was seen the <lriver cautiont<l the occupants to ju1np
out of the truck.
Consequently, Navneetlal and the other persons
jumped out Of the truck.
\VJ1ile doing so, Navnectla1 strurk against
a stone lying by the ~ide of the r0a:l and died instantaneollsly.
Parwati Devi, widow of NnvneetlaI
r.rought a suit [].gain.st the
State of Rajasthan for damages under the provisions of the Act.
The p!aintiff alleged that it w&s on account of the negligence of
the driver of the truck that a truck \vhich ,va:.;
not ror.dwortliy
was put on the road and that it caught fire
which led
to tl:e
death of Navneetlal and that the State wos liable for the negligence
of its employees in tlie course of his employment. The plaint also
alleg'd that the deceased had left behind him his widow, namely,
th:! plaintiff,
two n1inor sons, one minor daughter and his parents.
The plaintiff claimed damages to the tune of Rs. 20,000!- and prayed
for
a decree for that amount.
The State contended that the truck was qt1ite in order when it
started from Bhilwara and even when it started from Pratapgarh
to Banswara and that if it dc\'eloped some mechanical troubles
suddenly which resulted in its catc'.1ing fire, the defendant was
not liable as th'ro was M
neglig,nce oa the
part of the
driver.
The trial court found that the act of the driver in putting the
truck?" the road was negligent as the truck was not rnadworthy
and since the dnver was neghgent, the State was v1canously liable
for his act. The Court assessed the damages at Rs. 14,760/· and
granted a decree for the amount to the plaintiff.
·
It was ag1inst this decree that the State appealed to the High
Court.
The High Court came to the condusion that the
plai~tiff
had not proved by evidence that the driver was negligent, that the
mere fact that the truck caught fire was not evidence cf negligence on his part and that the maxim res ipsa /1quitur had. no application.
The Court said that the truck travelled safely from Bhilwara to Pratapgarh and that the engine caught
fire after having
552
SUPREME COUJ.T REPORTS
[ 1974 l 3 s.C.R.
travelled a distance of 4 miles from Pratapgarh an<i that there was
nothing on record to show that the engine of the truck was in
any way defectlve or that it was not functioning properly.
The
Court was of the view that the mechanism of «n automobile engine
is such that with all proper and careful handling it can go wrong
while it is on the road for reasons which it might be difficult for a
driver ,to explain. The Court then discussed the evidence and came
to the conclusion that no inference of negligence on the part of
the ,tlriver was pqssibl~ on the basis that ihe engine of the truck got
heated of and on and that water was put in the radiator frequently,
or that it took considerably long time to cover the distance between
Bhilwara and Chittorgarh and that between Chittorgarh and Pratap·
garh. The High Court therefore, allowed the appeal.
The main point for consideration in this appeal is, whether the
fact that the truck caught fire is evidencde of negligence on the part
of the driver in the course of his employment. The maxim res ipso
/oquitur is resorted to when an accident is shown to have occurred
and the cause of the accident is primarily within the knowledge of the
defendant. The mere fact that the cause of the accident is unknown
does not prevent the plaintiff from recovering damageo, if the proper
inference to in drawn from the circumstances which are known
is that it w1s caused by the negligence of the defendant. Tho
fact of tte accident may, sometimes, constitute evidence of negligence
and then the maxim res ipso loquitur applies.
The maxim is stated in its classic form by Erk, C. J. :
" .... Wh< re the thing is to shown to be under the management of the defendant or his scrvents, and the accident is
such as in the ordinary course of things does not happen if
those who have the management use proper care, it affords
reasonable evidence, in the ab,ence of explanation by the
defendants, that the accident arose from want of care."
The maxim does not embody any rule of substantive law nor a
rule of evidence. It is perhaps not a rule of any kind but simply
the caption to an argument on the evidence.
Lord Shaw remarked
that if the phrase had not been in Latin nobody would have
called it a principle
(2), The maxim
is only a convenient
label to apply to a set of circumstances in which the plaintiff
proves a case so as to call for a rebuttle from the defendant
without having to allege and prove any specific act or omission o~
the part of the defendant.
The principal function of the maxim
is to prevent injustice which would result if a plaintiff were invariably
compelled to prove the precise cause of the accident and the defendent responsible for it, even when the facts bearing on tlie matter
are at the outset unknown to him and often within the knowldge
of the defendant. But though the parties' relative access to evidence
is an influential, factor, it is not controllinll. Thus the fact that
(I) See Scott v. London St. Katherine Docks (1865) 3 H. & C. S96, 601.
(2) Soe Ballard v. North British Railway Co.1923 S. C. (H.L.)43.
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SHYA){ SUNDER V. RAJASTHAN (Mal~W, /,)
553
the defendant is as much at a loss to explain the aci;ident or ·-
himself died in it, docs not preclude an adverse inference against
him if the odds otherwise point to his negligence (see John G.
Fleming, The Law of Torts, 4th ed., p. 264). The mere happening
of the accident may be more consistent with the negligence on the
part of tht defendant than with other causes. . The maxim is based
on common sense ·and its purpose is to do justice when the facts bearing on the causation and on the care excercised by defendant are
at the outset unknown to the plaintiff and are or ought to
be
withfn the knowledge of the defendant (see Barkwa>' v. S.
Wales
Tran.lport(l).
·
the plaintiff merely proves a result, not any particular act or
omission producing the result. . If the result in the circumstances
. in which he proves it, makesit more probable than not thai it was
cau$ed by the negligence of thio defendant, the doctrine of res ips11
loquitur is said to apply, and the plaintiff will be entitled to succeed
unless the defendant by evidence rebuts that probability.
The answer needed by the defendant to meet the plaintiff's case
may take alternative fornis. Firstly, it may consist in a positive
explanation by the defendant of how the accident did in fact occur,
of such a kind as to exonerate the defendant from any charge of
negligence.
·
It should be noticed that the defendant doesllot advance bis case
inventing fanciful theories, unsupported by evidence, of how the
event might have occurred. The whole inquiry is concerned with probabilities, and facts ·are required, not nlere conjecture unsupported by
facts. As Lord Macmillan said in his dissenting judcment in Jones v.
Great Western (2) :
·
"Tb•; dividing line between conjecture and inference is often
a very difficult one to draw. A conjecture may be plausible, but
it is of no legal value, for its essense is that it is a mcre·guess. An
inference, in. the legal sense, on the other band, is a deductioL
from the.evidence, and if it is a reasonable deduction it inay have
the validity of legal proof. The attribution of an occurrence to
a cause is, I take it, always a matter of inference. The cogency
of a legal inference of causation may vary in degree between
practical ~rtainty and reasonable probability. Where the
coincidence of cause and effect is not a matter of actual
01>servation there is. necessarily a hiatus in the dirt ct evidence, but
Uris may be legitimately bridged by ;m inference from tLe frets
actually observed and proved."
In other words, an inference is adeductioo from established facts and
an assumption or a guess is SJmething quite different but not necessarily
related to established facts.
(I). [1950] l All J;ngland Reports 392, 39~;
7 _;_M 45 Sup on 5
(2) [1930] 47 T. L. R. 39.
554
SUPREME COURT REPORTS
[ 19741 3 S.C.R
Alternatively, in those instances where the defendant is unable to
explain the accident, it is incumbent upon him to advance positive
proof that he had taken all reasonable steps
to avert foreseeable
harm.
Res 1ps' /oquitur is an immensely important vehicle for importing
strict liability into negligence cases. In practice, there are many cases
where res iP'" /oquitur is properly invoked in which the defendant is
unable to show affirmatively either that he took all reasonable precautions to avoid injury or that the particular cause of the injury
was not associated with negligence on his part. Industrial and traffic
accidents and injuries caused by defective merchandise are so frequently
of this type that the theoretical limitations of the maxim are quite
overshadowed by its practical significance (I).
Over the years, the general trend in the application of the maxim
has undoubtedly become more sympathetic to plaintiffs. Concomitant
with the rise in safety standards and' expanding knowledge of the me·
chanical devices of our age less hesitation is felt in concluding that the
miscarriage ofa familiar activity is so unusual that it is most probably
the result of some fault on the part of whoever is responsible for its
safe performance (see John, G. Fleming, The Law of Torts,4th ed.,
p. 260).
We are inclined to think the learned District Judge was correct in
inferring negligence on the part of the driver.
Generally speaking,
an ordinary
road-worthy vehicle would not catch fire.
We think
that the driver was negligent in putting the vehicle on the road. From
the evidence it is clear that the radiator was g<tting heated frequently
and that the driver was pouring water in the radiator after every 6
or 7 miles of the journey. The vehicle took 9 hours to cover the distance of 70 miles between Chittorgarh and Pratapgarh. The fact that
normally a motor vehicle would not catch fire if its mechanism is in
order vould indicate that there \las some defect in it. The District
Judge found on the basis of the
evidence of the
witnesses that the
driver knew about this defective condition of the truck when he started
from Bhilwara.
It is clear that the driver was in the management of the vehicle and
the accident is such that it does not happen in the ordinary course of
things.
There is no evidence as to how the truck caught fire.
There
was no explanation by the defendant about it. It was a matter within
the exclusive knowledge of the defendant. It was not possible for the
plaintiff to give any evidence as to the cause of the accident.
In these circumstances, we think that the maxim res ipsa foquitur is
attracted.
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It was, however, argued on behalf of the respondent that the
State was engaged in p~rforming a function app.ertaining to its character
~s soverei~n as ~he dri~er wa.s acting in the course of his employment
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in connection with famine reltef work and therefore, even if the driver
(1) See Millner : "Negligence in Modern Law". 92,
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Sl!YAM SUNDER v. RAJASTl!AN (Mathew, J.)
555
was negligent, the State would not be liable for damages. Reliance
was placed on the ruling of this Court in Kasturilal Ralia Ram Jain v.
State ~f Uttar Pradesh (I) where this Court said that the liability of
the State for a tort committed by its servant in the course of his employment would depend upon
the question
whether the employment wa~ of the category which could claim the special characteristic
of s?verelgn power. We do not pause to consider the question whether
the >mmumty of the State for injuries on its citizens committed in the
exercise of what are called sovereign functions has any moral justification today. Its historic and jurisprudential support lies in the oftquoted words of Blackstone(2) :
"The king can do no wrong ...... The king, moreover, is
not only incapable of doing wrong, but even of thinking wrong;
he can never mean to do an improper thing : in him is no folly
or weakness".
In modern times, the chief proponent of the sovereign immunity doctrine has been Mr. Justice Holmes who, in 1907, declared for a unanimous Supreme Court(3) :-
"A sovereign is exempt from suit, not because of any for1nal
conception or obsolete theory, but on the logical and practical
ground that there can be no legal right as against the authority
that makes the law on which the right depends."
Today, hardly anyone agrees that the stated ground for exempting
the sovereign from suit is either logical or practical. We do not also
think it necessary to consider whether there is any rational dividing
line between the so-called sovereign and proprietary or commercial
functions for determining the liability of the
Slate.
We are of the view that, as the law stands !Oday, it is not possible
to say that famine relief work is a sovereign function of the State as
it has been traditionally understood. It is a work which can be and
is being und.ertaken by private individuals. There is nothing peculiar
about it so that it might be predicated that the State alone can legitimately undertake the work.
In the view we have taken on the merits of the case, we do not
think it necessary to canvass the correctness of the view experessed by
the High Court that the appeal by the State before the High Court
did not abate even though the legal representa•ives of the plaintiffre~pondent there were not impleaded within the period of limitation.
In the result, we set aside the decree of the High Court, restore
the decree and judgment passed by the District Judge and allow the
appeal with costs.
S.B.W.
(I) 11965] 1 S. C. R. 375.
(2) Blackstone, Commentaries (10th ed., 1887)
(3) Kawananakav. Polyblank, 205 U.S. 349, 353.
Appeal allowed.