M.B Farooqi, J.:— This is a pauper suit for the recovery of damages in tort. The plaintiffs are the mother, wife and children of one Ghulam Nabi Shah, who died on December 4, 1968 at about 5 p.m in a truck accident at Solina Bazar, Srinagar while he was returning home as usual from his work. The truck belonged to the Govt. Transport Undertaking, defendant No. 2 herein. It was driven at that time by Mohammad Sultan, defendent No. 3 herein, who is a driver employed in the Transport Department. The plaintiffs allege that the deceased died due to the rash and negligent act of defendant No. 3 who drove the truck rashly and at a fast speed even without blowing the horn with the result that the truck hit the head of the deceased and crushed his skull bringing him dead on the ground. They further allege that the police immediately reached the spot and after registering and investigating the case under section 304-A I.P.C challaned defendant No. 3 in the court of City Munsiff, Judicial Magistrage 1st Class, Srinagar where the said defendant confessed the guilt and, by order of the court dated December 30, 1968, he was sentenced to a fine of Rs. 100 and, in default, to one week's simple imprisonment. They also allege that, at the relevant time, defendant No. 3 was in the employment of the Jammu and Kashmir State, defendant No. 1 herein, through defendant No. 2 who was his immediate boss and, that the said defendant was at the time of accident acting in the course of employment for and on behalf of defendants 1 & 2. In this context the plaintiffs claim damages against all the defendants estimating and claiming the same at rupee one lac on the allegation that the deceased was 38 years old at the time of the accident and could have ordinarily lived for another 22 years or more and earned at least rupees one lac and twenty five thousand at the rate of Rs. 400/- per month which was the salary then drawn by him from his employers adding that the plaintiffs could be the beneficiaries of this amount as they depended for their maintenance solely on the deceased.

2. In reply, the defendants have averred that the deceased died due to his own carelessness and negligence with defendant No. 1 adding that he was not liable for the alleged tortious act as the same was committed while defendant No. 3 was performing Governmental and sovereign function of carrying police personnel from one place to another for maintenance of law and order in the city. They have, however, admitted that defendant No. 3 confessed the guilt before the City Munsiff, Judicial Magistrate 1st Class, Srinagar and was sentenced to fine of Rs. 100/- and, in default, to one week's simple imprisonment. Defendant No. 1 has, however, stated in his reply that the confessional statement was not free and voluntary. On these pleadings the following issues were framed by my learned brother Mian Jalal-ud-Din J. who originally tried the suit:

1. Was the death of Ghulam Nabi Shah, deceased, caused by rash and negligent act of defendant No. 37 O.P.P

2. In case issue No. 1 is proved, are the plaintiffs entitled to any compensation. If so, what is its quantum? O.P.P

3. Was defendant No. 3 not in the service of defendant No. 1 through defendant No. 2 at the time of the alleged accident? O.P.P

4. Are defendants Nos. 1 and 2 liable for the act of defendant No. 3 who caused the death of Ghulam Nabi Shah, deceased? O.P.P

5. Are the plaintiffs the legal heirs of Ghulam Nabi Shah, deceased? O.P.P

6. What was the earning capacity of Ghulam Nabi Shah, the deceased, at the time of his death and what were his sources of income; and was he the only earning member of his family? O.P.P

7. Has not a valid notice under section 80 C.P.C been issued to the defendants? O.P.D

8. What is the value of the confessional statement of defendant No. 3 before the Judicial Magistrate? Was not the same free and voluntary? O.P.P

9. To what relief are the plaintiffs entitled and against whom? O.P.D

3. The parties have examined a number of witnesses in support of their respective cases. I will have occasion to refer to the evidence of these witnesses at appropriate places in the course of this judgment.

4. The first question is whether the death of the deceased resulted from any rash and negligent act of defendant No. 3. In dealing with this question it is neceassary to refer to the evidence adduced in the case. Abdul Rehman Ganai is the plaintiff's first witness whose evidence is material on this point. He is a shopkeeper in Solina Bazar where the accident took place. He says that, at the relevant time, two Govt. trucks were going in line in the direction of the Airport, both of them carrying military personnel who had busied themselves in Bangra. Continuing, he says, that the driver of the vehicle at the back signalled to the driver of the vehicle going in the front several times to let him drive past and move forward but the latter did not heed the signals. Eventually, so says the witness, the driver of the vehicle at the back swerved the vehicle to the wrong side and overtook the vehicle going in front surprising the deceased who was coming riding on a bicycle from the opposite direction on the proper side, the result being that the trucks struck the deceased and he fell dead on the spot. The next witness of the plaintiffs on this point is Ghulam Mohammad Lone who is also a shopkeeper in the Solina Bazar. He corroborates the statement of Abdul Rehman Ganai almost word for word adding that the hind portion of the body of the truck hit the deceased. The third witness of the plaintiffs is Mohammad Yousuf Baig. He was a colleague of the deceased in Diamond Silk Factory where both of them were employed. According to the witness, both of them were on their return journey home riding on bicycles at a distance of 10/15 yards from each other when the accident took place. The witness says that after they had crossed Rambagh bridge and were driving through Solina Bazar, he noticed two Govt. trucks carrying Police men coming from the opposite direction, one following the other. While driving through Solina Bazar, the driver of the truck at the back tried to overtake the vehicle going in front and, so doing, knocked down the deceased. Seeing this, says he, the witness came down from the bicycle to help the deceased but the deceased breathed his last before anything could be done to save him. Mohammad Khalil and Ghulam Rasool are the plaintiffs 4th and 5th witnesses on this point. They too are shepkeepers of Solina Bazar. They fully support the version of the accident given by other witnesses of the plaintiffs. The last witness of the plaintiffs on this point perhaps more important than the other witnesses is Havaldar Khan. He is a Havaldar in the B.S.F He is one of the B.S.F men who was travelling in the truck driven by defendant No. 3 when the accident took place. Giving his version of the accident, the witness states, that defendant No. 3 was driving fast and wanted to overtake the other truck going in front with B.S.F men on board. Accordingly on the road between Silk Factory and the Rambagh bridge, the witness further says defendant No. 3 drove his vehicle past the vehicle going in front surprising the deceased coming on a bicycle from the opposite side with the result that the hind bumper hit the deceased who fell dead on the spot. Besides these witnesses the plaintiffs have produced a certified copy of the judgment of the City Munsif, Judicial Magistrate, Srinagar whereby defendant No. 3 was convicted of an offence under section 304-A I.P.C for rash and negligent driving and sentenced to a fine of Rs. 100/-.

5. On the oral evidence produced by the plaintiffs, it is clear that defendant No. 3 drove his vehicle past the other vehicle going in front without seeking clearance from the driver of that vehicle and even took by surprise the deceased who was coming on a bicycle from the opposite direction with the result that the deceased was hit in his head by the vehicle and brought down dead on the ground. On this finding one cannot help the conclusion that the death of the deceased was due to the rash and negligent act of defendant No. 3. The judgment of the criminal court supports the conclusion. The judgment may not be admissible to prove the confessional statement but it is certainly admissible to prove the fact that the accused was convicted of an offence under section 304-A I.P.C for rash and negligant driving and sentenced to a fine of Rs. 100/-

6. The aforesaid conclusion is supported rather than rebutted by the evidence produced on the side of the defendants. The first witness adduced by the defendants is Ghulam Rasool. He was the driver of the other vehicle carrying B.S.F men. He says that the deceased was carrying another person on the carrier. According to him, the deceased lost control of the handle and fell down on the ground adding that he could not say if the deceased was hit by the body of the vehicle. The next witness of the defendants is Ali Mohammad. He was the cleaner attached to the truck No. 7828/-JKA. He also says that the deceased was having a double seat adding that his handle went out of control with the result that both of them fell down, the deceased incidentally dashing against the body of the truck. According to the witness the accident took place when truck No. 7828.JKA went past truck No. 7888.JKA near Silk Factory while it had stopped to let one passenger get down from the truck. Ghulam Qadir Gujri is the third witness of the defendants. He is a shopkeeper in Solina Bazar. He corroborates the statement of Ali Mohammad adding that the deceased got nervous and lost control of the bicycle at the sight of the B.S.F people clapping their hands as he suspected that riot had started and the stoning might ensue. He however adds that all the shops were open on spot and the people were moving freely here and there. The 4th witness is Ghulam Hassan Khan. He was the cleaner attached to truck No. 7888.JKA. His version of the accident is the same as that given by the other witnesses of the defendant. Jumma Gujri is the 5th witness of the defendants. He is a shopkeeper in Solina Bazar. He too says that the deceased lost control of the bicycle and dashed against the hind portion of the body of the vehicle and fell injured on spot adding that it was because the deceased and his companion on the bicycle felt nervous at the sight of B.S.F men clapping their hands as they suspected trouble at the spot in the background of the disturbed conditions prevailing in the city. He also says that the accident took place when the vehicle driven by defendant No. 3 went past the other vehicle which he says, had stopped to allow the B.S.F men to get down in Solina Bazar. Ghulam Nabi Sofi is the 6th witness. His statement is fully in line with the statement of Jumma Gujri. Defendant No. 3 has appeared as his own witness. He says that both the trucks were going in line, the truck driven by him following the other. On the road near Sericulature Department, he goes on to state, the truck going in front stopped to let the passengers get down and so he swerved to the right and drove past the other vehicle adding that at this time the B.S.F men clapped their hands and he soon learnt that accident had taken place without he himself noting what had happened. He denies that he confessed the guilt before the Magistrate, but admits that a fine of Rs. 100/- was imposed on him.

7. On the evidence produced by the defendants there can be hardly any doubt that the deceased was hit by the vehicle and fell dead at the spot. Their witnesses, however, say that it was so because the deceased got nervous and lost control of the bicycle at the sight of B.S.F, men clapping their hands, it being suggested that the city was in the grip of disturbances and so the deceased fett that some untoward event had taken place at the spot. The suggestion is given lie to by Gulam Qadir D.W when he says that, at the relevant time, all the shops were open and people were moving freely here and there at and near the of scene occurrence. His statement categorically proves that the condition prevailing in the Solina Bazar were least suggestive of any cause for concern. If the deceased at all felt nervous and lost control of the bicycle, as stated by the witnesses of the defendants, it must be reasonably held that it was so because he felt trapped when he was surprised by defendant No. 3 driving his vehicle close to him from the opposite direction, as suggested by plaintiffs witnesses. To this support is lent by the statement of Ghulam Hassan Khan, D.W when he says that vehicle No. 7828.JKA drove past vehicle No. 7888.JKA at a time when a bicycle with a double seat was coming from the opposite direction. Thus the evidence of the defendants witnesses goes to support the plaintiff's case on the question of rashness and negligence of defendant No. 3 rather than controvert it. In these circumstances I hold that the death of the deceased resulted from the rash and negligent act of defendant No. 3.

8. The next question is whether defendants 1 & 2 are liable for the tort committed by defendant No. 3 which is the same thing as saying whether the State is liable for the tort committed by defendant No. 3 because defendant No. 2 is nothing but a limb of defendant No. 1. In order to determine this question it is necessary to notice the duty in which the defendant No. 3 was engaged at the time of the accident. On the evidence of Havaldar Khan P.W and Ali Mohammad and Ghulam Hassan Khan D.W's it is clear that the defendant No. 3 was transporting B.S.F men from police operational quarters at Pologround, where they were called for duty, to their Headquarters at Barazuiia. In the circumstances the ultimate sovereign function of the State which is relevant to the present is the maintenance of law and order in the State. The function carries with it the power to maintain police force. Even the training and use of such foree for maintenance of law and order may appropriately be regarded as parts of the exercise of that power. The State would clearly not be liable for the tort committed by a member of the police force in the exercise of that sovereign power. The learned counsel for the State, however, wants me to go further than this. He suggested that all acts done as adjuncts and appendages to the exercise of a sovereign power must be deemed to have been done in exercise of the sovereign power or the delegated sovereign power. Thus, according to him, the transport back of Police men deployed on duty to their barracks is a duty performed in the exercise of sovereign power of the State. In that view, he urged that the duty of transporting the B.S.F men from Pologround to their barracks at Barzulla performed by the defendant No. 3 in the present case was an act done by him in exercise of the delegated sovereign power and as such the State was not liable for the tort committed by him in the course of driving the vehicle conveying these men to the barracks.

9. I am unable to subscribe to this argument. In my opinion there is a clear and great distinction between an act done in the exercise of sovereign power or of delegated sovereign power and an act done as an adjunct or appendage to that power. The State may not be liable for a tortious act committed in the exercise of sovereign power or delegated sovereign power but it is certainly liable for a tortious act committed as an adjunct or appendage to such power. In the present case the transport of the B.S.F men from operational headquarters to their barracks at Barzulla cannot be said to be an act done in the exercise of sovereign power or of delegated sovereign power though it may appropriately be termed as an act done as an adjunct to the exercise of sovereign power.

10. That apart, there is nothing in law at least nothing was shown which will prevent a private individual driving a vehicle from giving lift to the B.S.F men, in the circumstances of the present case, whether on payment or otherwise, either absolutely or in the absence of any delegated authority of the State. If that be so, as it really is, it cannot be said that the act of defendant No. 3 was an act done in the exercise of sovereign power or delegated sovereign power. Because Sovereign powers means power which cannot be lawfully exercised except by a sovereign or private individual delegated by the sovereign to exercise it. In Peninsular & Oriental Steam Navigation Co. v. Secy, of State for India . 1861 5 Bom. H.C.R App. 1.. It must follow that the defendant No. 3 was not exercising any delegated sovereign power of the State when he drove the vehicle and transported the B.S.F men from their place of duty to their barracks and caused the vital accident by his rash and negligent act. That being so, the state is vicariously liable for the act of defendant No. 3 like a private employer. Lest there should be any misunderstanding. I want to make it clear that I am not expressing any view on the converse case or a case arising in circumstances different from the present case.

11. The decision in cases State of Rajasthan v. Mrs. Vidhyawati, The Union Of India v. Sugrabai Abdul Majid* . 1968 A.C.J 252.; Union of India v. Mrs. Jasse . A.I.R 1962 Punj. 315. seem to support the view expressed above. In the Supreme Court case the driver of a Jeep owned and maintained by the State of Rajasthan for the official use of the Collector of the District, drove it rashly and negligently while bringing it back from the workshop after repairs and knocked down a pedestrian and vitally injured him. It was held that the State was vicariously liable for the tortious act of the driver like any other employer.

12. In the Bombay case the driver of a military vehicle was carrying records sound ranging machine from military workshop to military school of Artillery and enroute knocked down a cyclist and killed him by rash and negligent driving. It was argued that the driver while transporting the records sound ranging machine was exercising the sovereign power delegated to him and Union of India was not, therefore, liable for the tort committed in the course of that duty. Repelling the argument the Bombay High Court observed:

“In our view, there is a fallacy in the assumption that every act which is necessary for the discharge of a sovereign function and which is undertaken by the State involves an exercise of sovereign power. Many of these acts do not require to be carried out by the State through its servants. For instance the army unit stationed at Deolali requires a regular supply of food. Food grains purchased for the army unit may be transported to the military camp in trucks belonging to a private agency. They may also be transported in military trucks driven by employees of the defence department. The fact that the army unit is maintained in the exercise of the State's sovereign power and the further fact that supply of food is essential for the maintenance of the army unit do not justify the conclusion that, if the food is transported to the army camp in military trucks instead of private trucks, the drivers of the military trucks exercise a sovereign power delegated to them by the State. To take another instance, the maintenance of military barracks is necessary for the maintenance of the army unit and the military barracks have to be kept in proper repair. If, instead of entrusting the work of repairing the barracks by private contractors, the State sets up a departmental unit for the Durpose, the work done by the State employees in repairing the barracks cannot be said to have been done in the exercise of delegated sovereign power, even if the work of repairing the barracks is essential for the maintenance of the army unit. It appears to us that in deciding whether a particular act was done by a Government servant in discharge of a sovereign power delegated to him, the proper test is whether it was necessary for the State for the proper discharge of its sovereign function to have the act done through its own employee rather than through a private agency. In the case before us the transport of the Records Sound Ranging machine and other equipment from the workshop to the School of Artillery was necessary for the proper training of army personnel, but it was not necessary to transport the said equipment through a military truck driven by an employee of the defence department. The equipment could have been carried through a private carrier without any material detriment for the discharge by the State of its sovereign function of maintaining the army and training army personnel. It is easy to appreciate that in certain circumstances the transport of machines through military trucks can be regarded as an act done in the exercise of the State's sovereign power. The machines may have to be carried for the immediate use of any army engaged in active military duty. In such a case the transport of the machines through military trucks may be regarded as an exercise of the State's sovereign power. In the case before us the transport of the machine could have been arranged through a private carrier without any material detriment to the running of the School of Artillery. It must follow that defendant No. 1 was not exercising any delegated sovereign power of the State when he transported the equipment in a military truck and caused the fatal accident by his negligence.”

13. In the Punjab case fatal accident was caused by the negligence of driver of military truck which was carrying coal to Army General Headquarters at Simla and the question arose whether the Union of India was liable to be sued in respect of the tort committed by the military driver. The matter came up before the Full Bench of Punjab High Court which, after referring to the distinction between the acts done in exercise of sovereign power and other acts observed:—

“Applying this test to the present case it is difficult to see how it can possibly be held that such a routine task as the driving of a truck loaded with coal from some depot or store to the Generel Headquarters building at Simla presumably for the purpose of heating the rooms, is something done in exercise of a sovereign power, since such a thing could obviously, be done by a private person.”

14. In view of these discussions it must follow that the State, or in other words defendants 1 and 2, are responsible for the tortious act of defendant No. 3.

15. Then comes the question: what should be the amount of damages allowed to the plaintiffs. It is in the evidence of the plaintiff, Fatima Begum, that, at the time of accident, the age of the deceased was 30/35 years. They had four children two sons and two daughters and all of them were minors, the age of the eldest son was 13 years and that of the youngest son ten years, the ages of the two daughters being 12 and 11 years. The deceased had also his mother living who was putting up with him. According to the plaintiff, she was pregnant at the time of the death of her husband and subsequently gave birth to another daughter. She was examined in July, 1973 when she declared her age to be 30 years. Estimated thus, her age at the time of the accident was about 25 years. She deposes that the deceased was drawing a salary of Rs. 400/500 per month and was having good health and sound physique. She also deposes that she and also her children and mother-in-law depended for their maintenance on the deceased who was sole earning member of the family. Mohd. Maqbool P.W puts the age of the deceased at the time of the accident at 30 years and Ghulam Shah P.W at 27/28 years. Mohd. Maqbool Baig is the proprietor of the factory where the deceased worked as a clerk. He has produced the acquittance roll and deposed that the deceased was drawing a monthly salary of Rs. 350/- per month from him and was employed in his factory for the last seven years. He and also Ghulam Shah P.W depose that the deceased was the sole supporter of his family consisting of his mother, wife and children. There is no evidence in rebuttal from the other side. On the evidence set out above, the age of the deceased ranged between 28-35 years at the time of his death but on the everments made in the plaint it was 38 years and I therefore hold so. Further it is proved that he was drawing a salary of Rs. 350/- per month; that he was the sole supporter of his family consisting of his wife and four minor children who have subsequently got an addition raising their number to five; that the mother, wife and minor children of the deceased were entirely dependant for their maintenance on the earnings of the deceased; and, that he was having good health and sound physique. Giving allowance for his personal expenses at Rs. 30/- per month, it may be reasonably held that the deceased spared a sum of Rs. 320/- per month for the maintenance of his family consisting of the plaintiffs. It can also be reasonably held that he had a life expectancy of 55 years even if he was under nourished, as he should have been with his meagre earnings.

16. In Municipal Corporation Of Delhi v. Subhagwanti & Others of the Supreme Court approved the principle for determing the damages and fatal accident laid down in Davies v. Powell Dujfryn Associated Colliers Ltd. in these words:

“It is a hard matter of pounds, shillings, and pence subject to the element of reasonable future probabilities. The starting point is the amount of which the deceased was earning, the ascertainment of which to some extent may depend upon the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basis figure which will generally be turned into a lump sum by taking a certain number of years purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependant, and other like matters of speculation and doubt.”

17. On these principles, this court, in a Division Bench case Brij Pal Singh v. The British India General Insurance Co. Ltd. allowed a sum of Rs. 15,120/- as damages to the appellants. The court even allowed interest from the date of decree to the date of payment of the amount.

18. I have already found that the amount available for the maintenance of the plaintiffs from the earning of the deceased was Rs. 320/- per month or Rs. 3,840/- per year. Taking into consideration the fact that the deceased was not holding any dangerous occupation which might have reduced his life expectancy, he could ordinarily have lived for another 17 years. Capitalizing the amount for 17 years, the plaintiffs are entitled to damages at Rs. 65,280. The amount cannot be taxed down as there is no material on record to show that the plaintiffs own any property or are in receipt of any other source of income. On the other hand the proved circumstances of the case are that they could not even afford to pay the court fee and therefore sued in forma paupris, which the court upheld to be true after investigation. I, there fore, hold that the plaintiffs are entitled to get a sum of Rs. 65,280/- as damages. I am not however, inclined to allow interest on this amount. In this background, let me now deal with the issues specifically. For reasons stated above issue No. 1 is replied in the affirmative. Further it is held that the plaintiffs are entitled to compansetion at Rs. 65,280/- issue No. 2 is disposed of accordingly. It is also held that defendants 1 & 2 are liable for the tortious act of defendant No. 3. That disposes of issue No. 4. Issues Nos. 3, 5, 7, were not pressed at the time of the final arguments. These issues are dismissed as not pressed. As regards issue No. 6 it is held that the deceased was drawing a salary of Rs. 350/- per month at the time of his death which was the only source of his income. It is also held that he was the only earning member of his family. That brings me to issue No. 8. It is not a material issue in the case. However it may be stated that the confessional statement cannot be used as a piece of evidence in the present case which must be decided on its own evidence. The statement could be used to contradict the defendant if he resiled from what he had stated before the Judicial Magistrate. In fact this is what counsel for the plaintiffs attempted when he cross-examined defendant No. 3. There is however, no material on record to show that the statement was not free and voluntary. Curiously enough, the assertion that it was involuntary has been made by defendant No. 1 and not by defendant No. 3 who gave the statement. In view of my findings on the material issues the plaintiffs are entitled to a decree for Rs. 65,280/- against the defendants. They are also entitled to get costs. Issue No. 9 is replied in these terms.

19. In the result a decree for a sum of Rs. 65,280/- with costs is granted in favour of the plaintiffs against the defendants. The decree shall be satisfied within a period of two months failing which the plaintiffs shall be at liberty to invoke the jurisdiction of this court in the matter in accordance with law.