HIGHWAYS DEPARTMENT OF SOUTH ARCOT CUDDALORE Vs. VEDANTHACHARIAR

JUDGEMENT

(1.) SECOND defendant, the Highways Department of South Arcot, represented by the District Collector of South Arcot, Cuddalore, is the appellant. The first defendant is the proprietor of a service bus bearing No. MDF 2015 and known as k. T. R. Bus service. The third defendant is the New India Asiatic Insurance Co. , with whom the said bus had been insured. The plaintiffs had filed the suit against these defendants claiming damages in a sum of Rs. 25,000. on account of the death of their son Santhanagopalan in the accident that took place at or 5-30 a. m. on 14-11-1960, at 14/2 milestone in the Vridhachalam-Cuddalore road due to the culvert giving way and the bus plunging into the channel. The learned Sub ordinate Judge of Cuddalore held that there was no negligence on the part of the first defendant or his driver and that, therefore, they were not liable for damages and in that view dismissed the suit as against the first and third defendants. But so far as the second defendant is concerned, he held that the very collapse of the bridge raised a presumption of negligence on the part of the second defendant and on the principle of res ipsa loquitur the second defendant was liable for damages. , the learned Subordinate Judge ascertained and fixed the damages at Rs. 9100/-, and decreed the suit for that amount against the second defendant alone. The second defendant has preferred this appeal. The plaintiffs have preferred cross-objections in which they have claimed a further sum of Rs. 5,000/- towards damages. No appeal has been preferred against that part of the decree which dismissed the suit as against defendants 1 and 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Discussion of evidence omitted ).

(2.) THE plaintiffs had not let in any positive evidence to show that the culvert had been defectively constructed or inefficiently maintained. The reports further disclose that the culvert was in a sound condition on the previous day and was adequate for all ordinary occasions. In these circumstances, though the breach of the culvert may not amount to an act of God, still it could not be that it was due to any want of reasonable and proper care on the part of the second defendant. The decision in Municipal Corporation. Delhi v. Sobhag Wanti. relied on by the trial court in support of the view that the principle of res ipsa loquitur will be applicable to the facts and circumstances of the present case is clearly distinguishable. In that case, which went to Supreme Court and reported in it was found that having regard to the kind of mortar used, the normal life of the structure of the top storey of the building could be only 40 or 45 years but at the time when the building collapsed it was 80 years old and the collapse was due to thrust of the arches on the top portion and the mortar was deteriorated to such an extent that it was reduced to powder without any cementing properties. In the present case, the culvert was found to be in a sound condition on the previous day and there is no evidence of any defective construction or inefficiency in the maintenance. We, therefore, hold that the accident was not due to the negligence of the second defendant in maintaining the culvert.

(3.) EVEN if the principle of res ipsa loquitur is to be applied to the facts and circumstances of this case, in law the second defendant could not be held to be liable in tort for highway accidents. Article 300 of the Constitution provides that, subject to any provisions which may be made by any Act of the Legislature of a state, the Government of a State may sue or be sued in the name of the State in relation to its affairs in the like cases as the corresponding provinces might have sued or been sued if the constitution had not been enacted. Like Section 65 of the government of India Act, 1858 or S. 32 (2) of the Govt. of India Act, 1915, or S. 176 (1) of the Government of India Act, 1935, Art. 300 of the Constitution also makes provision for suits against the Government in cases where such suits could have been filed against the East India Company had the case arisen prior to 1858, subject to any Act of the Legislature of the State.