- (1.)THE plaintiffs, parents and grandfather of one Brij Mohan Lal Sharma, have brought this suit claiming Rs. 60,000/ - as damages and compensation for the death of the latter alleged to have been caused as a result of collision between Dodge Power Wagon Truck (B. A.) No. SA 8323 15 CWT driven in a rash and negligent manner by the second defendant and the Scooter driven by the said Brij Mohan Lal on the afternoon of the 14th February, 1966, on the National High Way near the Water Point, Satwari.
(2.)THE plaintiffs case as put forth in their petition of plaint is that the aforesaid truck was being driven by the second defendant, a member of defence services, in the course of his employment and as a part of his official duty as a servant of and for the purposes of the Union of India, the first defendant, from the side of Jammu cantonment towards the city, that the second defendant was driving the said truck "in a most rash and negligent manner and on the wrong side of the road", that when the truck reached near the Water Point it struck a rehra (a cart drawn by a horse) of one GurDas Ram Megh of Khaur, Tehsil Ranbirsinghpora, District Jammu, which was going on its correct side of the road at usual pace, that on seeing the said truck coming in a very rash and negligent manner towards him on the wrong side of the road, the rehra driver in order to ward off the danger which he thought was Imminent pulled his rehra to the extreme left side of the road but despite the precaution taken by him, the truck dashed against the right side of his rehra breaking its bamboo and right wheel that after striking the rehra of Gur Das Ram and damaging the same the truck collided against Scooter No. PNQ 2021 which was being driven at a distance of about 20 yards from the rehra by the said Shri Brij Mohan Lal from Jammu city side towards the Cantonment side in consequence whereof the said Brij Mohan Lal was thrown off and was badly injured, that the Scooter got entangled in the said truck and was dragged for some distance in that position and was smashed, that the said Brij Mohan Lal was removed in an unconscious state to the hospital where he reached at 15 -35 hours but despite the best efforts of the doctors attending on him he succumbed to his injuries at about 16 -45 hours on the same day, that the death of the said Brij Mohan Lal and smashing of his scooter was the immediate result of the rash and negligent driving of the second defendant, that the scooter was so badly smashed that the estimated cost of its repairs as assessed by the Insurance Company came to Rs. 1988.10, that Shri Brij Mohan Lal was a young man of 26 years (having been born on 18 -5 -1940) and was working as the Territorial Manager. Fire Stone Tyre and Rubber Company of India Ltd. Jammu and was drawing a salary of Rs. 620/ - per month plus an annual bonus of Rs. 1400/ - and odd at the time of his death, that ordinarily the said Brij Mohan Lal would have served for about 34 years more i.e; still he would have attained the age of superannuation of 60 years, that he was a very competent and promising young officer and had a very bright future and in the normal course he would have earned increments and promotions and would have risen to a very high position in life, that even at the rate of the last salary drawn by him the total salary which he would have drawn upto the age of his superannuation would have been about three lacs and if the increments and promotions which he would have earned In the normal course are kept in view, then his total salary would have been more than twice the aforesaid amount, that over and above all this the said Brij Mohan Lal would have also got "employees" contribution provident fund and retirement gratuity, that the plaintiffs were being mainly supported by the said Brij Mohan Lal who was spending most of his salary on their maintenance and that of his grandmother who died shortly after the fatal accident, that the plaintiffs have been deprived of the financial assistance and support and have suffered a great mental shock and pain, and though they are entitled to much larger amount of damages and compensation yet being unable to incur huge expense by way of court -fees etc. due to their financial difficulties, they claim Rs. 60,000/ - only from the defendants, the second of whom is liable for his rash and negligent act and the first of whom being an employer is liable for the rash and negligent act of the second defendant who was driving the track on official duty at the time he knocked down the said Brij Mohan Lal and smashed his scooter.
(3.)THE suit was resisted in the first instance by both the defendants. In their joint written statement while admitting that the second defendant was driving the aforesaid military vehicle on 14 -2 -1966 at about 15 hours as a member of the Defence services as a part of his official duty and in the course of his employment for the purposes of defendant No. 1 from Jammu Cantonment side towards Jammu city side and that Shri Brij Mohan Lal was going on a Scooter from Jammu city side towards Cantonment at the time the accident took place and that he was removed in an unconscious state to the hospital where he reached at about 15 -35 hours and despite the best efforts of the doctors he succumbed to his injuries at about 16.45 hours on the same day, the defendant denied that the accident was due to rash and negligent driving on the part of the second defendant. According to them, the second defendant while returning to his Unit No. 998 INDPT ASC was faced with a grave situation as a result of reckless driving of a tonga by Shri Gurdas Ram at the Satwari Water Point at about 15.00 hours. The defendants have contended that as a result of his careless driving, the tonga driver while passing by the aforesaid military vehicle lost control over his horse and took a sudden turn towards his right bringing his tonga in close contact with the hind wheel of the military vehicle, that accident was averted as the military vehicle was being driven on its own side at a normal and moderate speed of 18/20 Kmts. per hour, that soon after the said tonga passed by the military vehicle a scooter bearing No. PNQ 2021 driven very rashly and negligently by Shri Brij Mohan Lal abruptly appeared on the scene, that on observing the uncontrollable movement of the tonga Shri Brij Mohan Lal because of his rash and negligent driving could not control the scooter which he let loose after jumping from the same on his left side, that the moving scooter took a right turn and was "entrapped" in the right wheel of the military vehicle when the second defendant immediately applied his breaks and stopped the vehicle within a short distance, that the said vehicle being a very heavy one it was not possible to stop it instantaneously with the application of the breaks and that in this way the scooter was damaged to some extent but Brij Mohan Lal was injured due to his own act of jumping from the moving scooter, and that the second defendant was in no manner responsible for the accident which the said Brij Mohan Lal met with. It has also been denied that Shri Brij Mohan Lal was a young man of 26 years and was working as a Territorial Manager in the Fire -Stone Tyre and Rubber Company of India Ltd. and was drawing a salary of Rs. 620/ - in addition to the annual bonus of Rs. 1400/ - per annum at the time of his death. It has also been denied that the plaintiffs were dependant for their maintenance upon the earnings of the deceased, Shri Brij Mohan Lal or that Brij Mohan Lal was legally bound to maintain them. It has also been denied that any notice of the claim in accordance with law had been served on the defendants. It has been further averred that the plaintiffs have independent source of income and sufficient means of maintaining themselves. The defendants have further pleaded that second defendant "was discharging his duty in the course of defence service of defendant No. 1 and was thus performing the functions of sovereign nature" and in such circumstances no liability attached to either of the defendants. It is further pleaded that the suit is time barred.
On the pleading of the parties, the following issues were framed in this case, vide my order dated 29th February, 1968.

(1) Was the defendant No. 2 driving Truck No. BA SC -8323 15 CWT on 14 -2 -1966 at about 15 hours near Satwari Water point Jammu, in a rash and negligent manner or on the wrong side of the road? If so, was the defendant No. 2 responsible for the death of Shri Brij Mohan Lal Sharma and damage to his scooter No. PNQ 2021? OPP

(2) In case Issue No. 1 is proved in favour of the plaintiffs, are they entitled to any compensation? If so what is the quantum of such compensation? OPP

(3) (a) In case issue Nos. 1 and 2 are found in favour of the plaintiffs are the defendants not liable to pay compensation to the plaintiffs for the death of Shri Brij Mohan Lal Sharma and damage to his aforesaid scooter? If so why? O. P. D

(b) Was the act in question done by the defendant No. 2 in the course of employment but in connection with sovereign powers of the State? If so are the defendants immune from liability? O P D

(4) Does the notice under Section 80 of the Code of Civil Procedure suffer from any defect? If so what is its effect on the suit? O P D

(5) Is the suit barred by time? OPD

(6) Has the High Court no jurisdiction to entertain and try this suit?