KAILASAM, MAHARAJAN,JJ. - (1.)THE claimant in M. A. C. T. O. P. No. 442 of 1970 on the file of the Motor Accidents Claims Tribunal, Madras, is the appellant before us. The appellant minor Thangarajan, aged about 10 years at the time of the accident was walking along Suryanarayana Chetty Road on 14 -5 -1970 about 12 noon. The military lorry UD 40494 belonging to the Defence Department of the Union of India knocked Thangarajan as a result of which he sustained serious injuries. He claimed a compensation of Rs. 45,000.
(2.)THE Union of India represented by the Secretary, Defence Department, raised various defences. Firstly it was contended that the accident was not due to the rash or negligent driving on the part of the driver of the lorry and that it was due to the reckless crossing of the road by the petitioner Thangarajan. It was also contended that the respondent, Union of India, is not liable for the tortious act of its servant, namely, the driver of the lorry, committed in the course of the exercise of its sovereign functions.
The Tribunal found that the appellant sustained grievous injuries as a result of the rash driving of the lorry by the driver. But it found that the Union of India is not vicariously liable for the tortious act of the driver of the lorry as the act was committed in the course of exercise of sovereign functions. In the event of the defendant being held liable, the tribunal fixed the compensation payable to the appellant at Rs. 10,000/ -.

(3.)THE evidence regarding the incident is given by the injured boy P. W. 2 and the head constable P. W. 5. P. W. 2 would state that he was crossing the road to go to the other side and that at that time, the military lorry came at a high speed without sounding the horn and knocked him down. He denied the suggestion that a State Transport bus was stationary at that time and he crossed the road behind that bus. The investigating officer P. W. 5 went to the spot immediately on receipt of information and drew up the plan E. P.2. The road was 48 ft wide at that place and repairs were going on on the road for a width of ten feet. P. W. 5 found tyre marks to a distance of about 20 ft. It is also in evidence that a part of the road was under repair and that only a single vehicle could pass along the unrepaired portion of the road. From the fact that the road was under repair and that a single vehicle alone could pass along the unrepaired portion of the road and the presence of skid marks to a distance of 20 ft, the Tribunal expressed the view that the driver of the lorry was guilty of rash driving. As the road was under repair, it was the duty of the driver to have bestowed utmost caution while driving a vehicle and we feel that the tribunal was right in accepting the evidence given by P. Ws. 2 and 5. The driver of the lorry was not examined as he was on duty and was not available.