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Judgment
Ratnam, J.—These appeals and revisions, at the instance of Thanthai Periyar Transport Corporation Ltd. (hereinafter referred to as ''the
Corporation'') as well as another appeal and Memorandum of Cross objections at the instance of the claimants, have been preferred against the
awards of the Motor Accidents Claims Tribunal (Sub Court) Tindivanam, in M.C.O.P. Nos. 65, 17, 69, 201, 58, 117, 55, 159, 17, 54, 141,
292, 294, 304, 16, 59 and 56 of 1986 respectively. In the appeals and revisions filed by the Corporation it has challenged the awards of the
tribunal on its conclusion on the question of the negligence of the driver of the bus TML.8364, which plied on the route Madras to Tiruvannamalai
on 12.11.1985 and met with an accident resulting in the death of several passengers in the bus. In C.M.A. No. 419 of 1990 and the Memorandum
of Cross objection Nos. 119 of 1992, 138 of 1991,59 of 1992 and 148 of 1991 in C.M. A. Nos. 332,344,597 and 798 of 1990 respectively the
claimants have challenged the propriety of the amount of compensation awarded and have prayed for the award of higher compensation.
Briefly stated, the facts giving rise to these proceedings are as follows: On 12.11.1985, while the bus TML.8364 belonging to the Corporation
and plying on route No. 122 between Madras and Tiruvannamalai was proceeding between Konakkampattu and Vallam villages over Tondiyar
bridge, the bus was washed away from the bridge by floods and in that, several persons, who were passengers in the bus, lost their lives. The
accident, according to the claimants, took place on account of the rashness and negligence of the driver of the bus TML.8364 belonging to the
Corporation. In respect of the death of the passengers who travelled by that bus and also the injuries sustained by some, the claimants prayed for
the award of compensation in different amounts.
These claims for compensation were resisted by the Corporation, while accepting the accident, on the ground that the accident took place on
the Deepavali day, as the passengers asked the driver to drive over the bridge overflowing with water and though the bus was stopped on the
bridge, it could not be moved further nor could it be moved backwards because of a lorry TMW.9509 behind and another bus and the engine of
the bus had also stopped and at that time, the bridge gave way and the bus TML.8364 as well as the lorry TMW.9509 were swept away and the
accident thus took place on account of an act of God and unexpected forces which could not be reasonably anticipated by human agency.
Referring to the ex-gratia payment of Rs. 5,000 made by the Corporation to the dependants of the deceased persons and others, the Corporation
also put forward the plea that the compensation claimed was excessive and exorbitant.
Though all the claim petitions arose out of one accident, the tribunal proceeded to consider the claims for compensation independently after
examining the same persons in different claim petitions, which could have well been avoided. Considering the oral as well as the documentary
evidence so let in the claim petitions, the tribunal found that the rash and negligent driving of the bus TML.8364 over the bridge by its driver,
despite the water flowing over the bridge and below it and knowing that the bridge was likely to be washed away and by not even allowing the
passengers to get down from the bus, had caused the accident. Referring to the plea that the accident was an act of God, the tribunal took the view
that having regard to the weather conditions that prevailed on the day of the accident, the driver of the bus TML.8364 should not have ventured to
proceed over the narrow bridge on Tondiyar river and that the Corporation was also further precluded from raising the plea of act of God in view
of the finding given by the tribunal on a preliminary issue on that point in the interlocutory proceedings, which had also become final and in that
view, negatived the plea of act of God. In regard to the compensation awardable, the tribunal, on a consideration of the available evidence,
determined it as under:
____________________________________________________________________
CMA/CRP. No. MCOP No. Amount Amount
claimed awarded.
Rs. Rs.
____________________________________________________________________
C.M.A. 199/90
(By Corporation) 65/86 1,00,000 25,000
C.M.A. 243/90
(By Corporation) 17/86 1,00,000 15,000
C.M.A. 410/90
(By Claimants) 17/86 1,00,000 15,000
C.M.A. 244/90
(By Corporation) 69/86 50,000 15,000
C.M.A. 246/90
(By Corporation) 201/86 50,000 15,000
C.M.A. 305/90
(By Corporation) 58/86 75,000 25,000
C.M.A. 307/90
(By Corporation) 117/86 1,00,000 32,400
C.M.A. 332/90
(By Corporation) 55/86 15,000 10,000
Cross-objection
No. 119/92 in
C.M.A. 332/90
By Claimant) ... 5,000
C.M.A. 344/90
(By Corporation) 159/86 50,000 15,000
Cross-objection
138/91 in C.M.A.
344/90 (By
Claimant) ... 35,000
C.M.A. 597/90
(By Corporation) 54/86 15,000 10,000
Cross-objection
59/92 in C.M.A.
597/90 (By
Claimant) ... 5,000
C.M.A. 599/90
(By Corporation) 141/86 50,000 15,000
C.M.A. 796/90
(By Corporation) 292/86 15,000 15,000
C.M.A. 797/90
(By Corporation) 294/86 15,000 15,000
C.M.A. 798/90
(By Corporation) 304/86 50,000 15,000
Cross-objection
148/91 in C.M.A.
798/90
(By Claimant) ... 35,000
C.R.P. 847/90
(By Corporation) 16/86 30,000 6,000
C.R.P.849/90
(By Corporation) 59/86 50,000 5,000
C.R.P. 1232/90
(By Corporation) 56/86 15,000 5,500
_____________________________________________________________________
It is the correctness of the awards so passed by the tribunal that is questioned in the appeals preferred by the Corporation, while in one appeal as
well as Memoranda of Cross-Objections, the claimants have prayed for enhancement of compensation as indicated earlier.
Mr. R. Krishnamurthi, learned Counsel for the Corporation, contended that the accident which took place on 1211.1985 in which the bus
TML8364 belonging to the Corporation was washed off Tondiyar bridge was an act of God. Elaborating this, learned Counsel submitted that the
evidence of Annadurai, examined as R.W.2 in M.C.O.P. No. 16 of 1986, the conductor of another bus TML.8363, showed that the bridge was
safe till about 4.15 p.m. on the day of the accident and the fact that other vehicles had followed the bus TML.8364 established that the bridge was
safe and there was therefore, no rashness, or negligence on the part of the driver of the bus TML.8364. The bridge over Tondiyar river breached
on account of heavy and unprecedented floods and that, according to learned Counsel, was an act of God. Reference was also made by learned
Counsel to the decisions reported in Province (State) of Madras Vs. I.S. and C. Machado, a registered firm of General Merchants and
Commission agents, Tuticorin, and S. Vedanthacharya v. Highways Department 1987 A.C.J. 783 (S.C.). On the other hand, Mr. K.
Ranganathan, who appeared on behalf of most of the claimants, submitted that the evidence disclosed that there had been heavy and unusual
downpour resulting in the foiling of the trees across the road and overflow of water on the bridge and in spite of it, the bus TML.8364 was driven
over the narrow bridge and that was so done despite the warning about the bad weather made available at Tindivanam. The further submission of
learned Counsel was that the driver of the bus did not even allow the passengers to get down on the ground that the bus may not be swept off, if
passengers remained in the bus and that certainly was not a prudent act on the part of the driver and that clearly established negligence and want of
care and caution on his part and the accident was thus not the outcome of any act of God. Reference in this connection was made by learned
Counsel to the decision reported in M/s. Chaurasiya and Company v. Smt. Pramila Rao 1974 A.C.J. 481.
Before proceeding to consider the question whether the accident involving the bus TML.8364 belonging to the Corporation in which several
passengers lost their lives was due to an act of God or not, it would be necessary to make a reference to the evidence regarding the prevalent
weather conditions on the date of the accident as well as the manner in which the accident took place. Gun-asekaran, examined as P.W. 1 in
M.C.O.P. Nos. 16 and 17 of 1986, is one of the passengers in the bus TML.8364 which met with the accident and who survived. As P.W. 1 in
M.G.O.P. No. 17 of 1986, he stated that on Deepavali New Moon Day, he boarded the bus TML.8364 at Tindivanam and there was torn torn
regarding the worsening weather condition and that as he was informed by the conductor and the driver of the bus that the bus will proceed, he
and his wife got into the bus and the bus started at 5 p.m. when it was raining heavily and there was gale as well. He also stated that the passengers
requested that the bus need not proceed, but the conductor and driver assured them that they need not be anxious. P.W. 1 referred to the heavy
rain, gale and also the water over flow on the road at the time when the bus was nearing Konakkampattu and stated that the driver was asked to
stop the bus, but he drove ahead without paying any heed to the requests so made. The bus according to P.W.1, had crossed three-fourths of the
bridge and was stopped, as there was a depression ahead, and the bus was parked in the middle of the bridge and on account of the raising water,
the bus was washed away and he was also carried by the floods for about a mile and that after clinging on to a tree, he survived. In his cross-
examination, P.W. 1 stated that several lakes had breached and there was sudden and heavy floods in the river and that the parapet walls of the
bridge were washed away and the bridge also collapsed when the bus was swept away. P.W. 1 admitted, however, that he did not file any
document to show the warning issued by the Municipality at Tindivanam regarding the inclement weather. P.W. 1 also added that the bus was
washed away after about 15 minutes after it had stopped in the bridge. Asuggestion that owing to natural causes and an act of God, the accident
took place, was denied by him. Yet another survivor, Renu, has been examined as P.W. 1 in M.CO.P. No. 64 of 1986. According to him, he and
his wife, his brother and his wile and children and others boarded the bus at Tambaram at about 10 a.m. and by the time they reached Tindivanam,
it was about 6 p.m. Resuming the onward journey from Tindivanam to Tiruvannamalai. the bus, according to this witness, stopped at the middle of
Tondiyar bridge and water was overflowing and when they got down, the water was flowing upto their knees. He had also referred to a lorry and
another Corporation bus behind the bus TML8364. The further evidence of P.W. 1 is to the effect that they requested the driver of the
Corporation bus behind TML.8364 to move backwards, but he refused on the ground that the bus TML.8364 can proceed forward and the bus
behind TML.8364 could not, therefore, be moved. The driver of the bus TML.8364, according to this witness, asked the passengers to remain in
the bus stating that the bus will not be washed away, if the passengers remained therein and despite the requests of the passengers to get down, the
driver did not allow them to do so and they remained in the bus for nearly half an hour, by which time, the flow of water increased and the bus was
washed away. P.W. 1 had clearly stated that the cause of the accident was only the driver of the bus TML.8364. In his cross-examination, P.W. 1
referred to the bus remaining on the bridge for nearly half an hour and stated that they could have, if they had been allowed to get down, waded
through the knee deep water and reached a safe place, but the driver prevented them from getting down. One Ponnuswamy, examined as P.W.2
in M.CO.P. No. 58 of 1986, in his evidence stated that he and some other persons were proceeding in the bus TML8364 from Tambaram to
Tiruvannamalai and the bus left Tambaram at 10 a.m. and there was heavy rain and gale and that led to the bus reaching Tindivanam at about 6
p.m. Referring to the onward journey of the bus from Tindivanam to Tiruvannamalai P.W.2 stated that the bus stopped on Tondiyar bridge where
water upto knee was overflowing and the driver was asked to move the bus for which the driver stated that the vehicle behind must be moved and
that the driver of that bus agreed to move the bus, if the other driver gave it in writing and that again, the driver of the bus TML.8364 was asked to
move the bus, but he did not allow any body to get down and stated that they would wait for the floods to recede and that led to the passengers
remaining within the bus, as, according to the driver, without the passengers, the bus would be swept away, P.W.2 had also stated how the bus
was washed away and he fell into the water and swam for a distance of nearly two furlongs and how he survived by catching hold of a casuarina
tree and reached the shore at 6 a.m. the next day. The accident, according to P.W.2. took place only on account of the negligence of the driver of
the bus TML.8364 as well as the driver of the bus behind. In his cross-examination, P.W.2 stated that he gave the first information report and he
denied the suggestion that he did not travel in the bus. Referring to the stopping of the bus on the Tondiyar bridge, he stated that it was stopped for
nearly two hours and the driver did not allow the passengers to get down and for nearly two hours, they had remained so between 7.30 p.m. and
9.30 p.m. P.W.2 also stated that the bus was washed away while he was within it and that he escaped and subsequently survived, but that others
were washed away by the floods. R.W. 1 in M.C.O.P. No. 16 of 1986 was the Tahsildar at Gingee on the day of the accident and he had
inspected the scene of the accident and had also prepared a report. In his cross-examination, he stated that on 7.11.1985, flood warning had been
received and he had informed the village officers about the precautions to be taken and also to inform the villagers by torn torn. R.W. 1, however,
stated that he did not inform the Transport Department, as it was not necessary to do so. R. W.2 in M.CO.P. No. 16 of 1986 is the conductor of
the bus TML.8363, which was proceeding in route No. 122 from Tiruvannamalai to Madras. His evidence shows that the bus left Tiruvannamalai
at 2.15 p.m. to proceed to Madras, but on reaching Tindivanam, it was realised that the bus could not proceed further and the bus was, therefore,
driven back to Tiruvannamalai and after removing a fallen tamarind tree near Salai village, the bus reached Tondjyar bridge, when the bus
TML.8364 was standing on the bridge and behind that a lorry the bus TML.8364 and his bus stood and there were also several other vehicles
behind. R.W.2 stated that it was about 8 p.m. and water was flowing in front of the bus TML.8364 and below the bridge as well and the bus
could not proceed towards west. R.W.2 also stated that he had enquired Sadanandam, the driver of the bus TML.8364 as to why the bus
stopped and that he replied that as water was overflowing the bridge, the bus could not proceed and the bus could be moved only if the floods
receded. Referring to the attempts to reverse the bus TML.8363 and its wheel being caught in a depression. R.W.2 stated that the water flow
increased and the engine of his bus also stopped and as the bridge was narrow, the bus and the lorry ahead could not come back and some of the
passengers in TML.8364 were in the bus, though some others walked. The driver of the bus TML.8364, according to R.W.2. did not ask the
passengers not to get down, but that he on his part took the passengers in his bus to a safe place and that was at about 10.30 p.m. R.W.2 referred
to the increasing floods thereafter and stated that the distance between the place where he stood and the bus TML.8364 and the lorry standing
behind was about one furlong. A suggestion that the driver of the bus TML.8364 was responsible for the accident, was denied by him. In his
cross-examination, R.W.2 stated that the day on which the accident took place was a New Moon Day and the bus TML.8364 was on the bridge.
He had also stated that he moved his bus in the reverse covering a distance of nearly one furlong and that he observed what was going on. He also
accepted that the bridge near Konakkampattu was very narrow. Referring to his crossing the bridge at about 3.20 p.m. R.W. 1 stated that at that
time, water did not overflow the bridge. R.W.2 added that it was about 4.15 p.m. when he returned from Tindivanam to Tiruvannamalai after
securing advice from the bus-stand, though there was nothing in writing to show the same. R.W.2 frankly admitted that there was no document
produced by him to show that he was working as conductor in the bus on the day of the accident, but that he got information to depose. Referring
to the rescue of the passengers in his bus, R.W.2 stated that after 8.30 p.m. the bus was moved by about a furlong and on the right side of the river
water upto a height of 10 to 12 feet was flowing and that by struggling for nearly two hours, the bus was taken to a safe place and it was raining
even then. R.W.2 also stated that he did not know that the bus TML.8364 was washed away in the floods. R.W.2 also stated that he did not
know about the storm warning given.
From the evidence referred to above, it is clearly established that the bus TML.8364 had taken an unusually long time to reach Tindivanam from
Madras or even Tambaram and that was only on account of unfavourable weather conditions. The rain was heavy and trees had fallen across the
road, as seen from the evidence and that should have put the driver of the bus TML.8364 on notice of adverse weather conditions. The evidence
referred to also discloses that warning at Tindivanam bus-stand should have been made available to the drivers of the buses in order to enable
them either to proceed or to stop the buses in order to ensure safety to the travelling public. In this case, the driver of the bus TML.8364 was fully
aware of the weather conditions even as he drove upto Tindivanam and as a prudent, careful and cautious driver, he should have watched out
before venturing on to a narrow Tondiyar bridge. Indeed, the driver should riot have gone over the narrow bridge at all after having observed that
the weather conditions were not favourable and that water was overflowing the bridge. The evidence also discloses that the water was flowing
below and over the bridge and was knee deep over the bridge and that certainly would not have given any indication to the driver of the bus
TML.8364 that he can safely cross the bridge. The evidence also discloses that the driver of the bus TML.8364 had prevailed upon the
passengers not to get down from the bus. Thus, the driver of the bus TML.8364, ignoring the warning administered about heavy rain and gale, had
made bold to take the bus across the narrow bridge over which water was flowing. In doing so, the driver ignored the duty cast on him for the care
and safety of the passengers. It is common knowledge that it is dangerous to cross a bridge or a cause-way which is submerged. In this case, the
evidence clearly establishes that water was flowing over the bridge by about 2 feet or so and the water was also rising and in such a situation, to
drive the bus over the bridge was an extremely dangerous and hazardous operation on the part of the driver. Even before approaching the bridge,
the driver having regard to what he observed on the way, viz., heavy rain gale and fallen trees and also the overflow of water on the bridge, ought
to have stopped before entering the bridge. There was thus a breach of duty which the driver of the bus TML.8364 owed to the passengers. The
available evidence, viz., that of Gunasekaran (P.W. 1 in M.C.O.P. No. 17 of 1986) Renu (P.W. 1 in M.C.O.P. No. 64 of 1986 and
Ponnuswamy P.W.2 in M.CO.P. No. 58 of 1986) clearly established want of care and caution on the part of the driver of the bus TML.8364
while attempting to cross the bridge. The evidence of R.W. 1 in M.CO.P. No. 18 of 86 does not throw any light regarding the manner in which the
accident took place. No reliance could be placed upon the evidence of R.W. 1 for it is difficult to believe that he could have observed anything
between 8.30 p.m. and 10.30 p.m. Obviously, R.W.2 has been examined to support the case of the Corporation that it was an act of God. When
even according to"" R.W.2 he was able to remove the bus behind by one furlong also the passengers to a place of safely, it is difficult to believe that
it was not so possible at all for the driver of the bus TML.8364 to do so and that would only establish that the evidence of the claimants, that the
passengers were not allowed to get down from the bus is true. The evidence of R.M.2 contra in M.C.O.P. 16 of 86 cannot therefore, be
accepted. The admission of R.W.2 that he did not produce any document to show that he was on duty as the conductor in the bus is also
significant. Likewise, his evidence that he received intimation to give evidence, but he did not go to the office would also show that he is an
unreliable witness and his evidence cannot be accepted at all. Therefore the evidence of R.W.2 that the bridge was safe till about 4.15 p.m. cannot
be accepted as true. Even assuming that the bridge was safe till 4.15 p.m. having regard to the heavy rains and gale and the falling of the trees, the
driver of the bus TML.8364 could not have just taken it for granted that the bridge was safe even when that bus came to cross the bridge. That
there were other vehicles which followed the bus TML.8364 is again no indication that the bridge was safe. It is common knowledge that when
one vehicle proceeds ahead, other vehicles following it also follow suit and the fact that other vehicles follows the bus TML.8364 and were not
involved in any accident, is not a clear pointer that the bridge was all right. It is significant that in this case the evidence of R.W.2 is to the effect that
the bus in which he was working as a conductor had been reversed for about one furlong. Obviously, therefore, realising that the driver of his bus
had committed a mistake in following the vehicles ahead, that bus had been reversed and, therefore, from the circumstance that other vehicles had
followed the bus TML.8364 it cannot be assumed that everything was clear and safe. It had earlier been pointed out that the driver of the bus
TML.8364, before entering the bridge, ought to have exercised reasonable care and caution and also should not have entered the narrow bridge
after seeing the flow of water below as well as over the bridge. It is further seen from the evidence that five days prior to the accident, i.e. on
7.11.1985 itself, the weather had worsened and warning had been issued and it is difficult to believe that the Transport Department and through
that the drivers and conductors did not know about the deteriorating weather conditions. That the driver proceeded to drive the bus on such a
narrow bridge with overflowing of water is by itself an act of negligence and having regard to the available evidence that the bus stopped on the
bridge and the passengers were not even allowed to get down from the bus, it is clear that it was only the rash act of the driver in driving the bus
and his negligence in not having bestowed care and caution on the safety of the passengers that had caused the accident.
It now remains to refer to the decisions relied on by counsel on both sides. In Province (State) of Madras Vs. I.S. and C. Machado, a
registered firm of General Merchants and Commission agents, Tuticorin, , the Division Bench referred to what constitutes an act of God and it was
found on the evidence that there was nothing over whelming or could not have been anticipated in relation to the loss sustained and, therefore, the
claim for the value of the rice bags lost was quite in order. This decision does not in any manner assist the Corporation, for, it has been found on an
appreciation of the evidence relating to the manner in which the accident took place that there was lack of care and caution on the part of the
driver of the bus TML.8364 and the accident could be regarded as one which had taken place as a result of the operation of the natural forces
which no human foresight can provide against and of which prudence is not bound to recognise the possibility. Indeed, it can be said in this case
that but for the act of the driver of the bus TML.8364 in driving across the submerged bridge, there would have been no accident whatever from
act of God. Likewise, the decision in S. Vedanthacharya v. Highways Department 1987 A.C.J. 783 (S.C.), also does not assist the Corporation.
In that case, a transport vehicle plunged into a stream as the culvert on which it was passing collapsed and in the suit filed by the parents of the
deceased claiming Rs. 25,000 by way of damages again the owner of the vehicle and the insurance company as well as the Highways Department,
the owner of the vehicle and the insurance company were absolved of their liability, but the Highways Department alone was held liable as the
collapse of the culvert raised a presumption of negligence. On appeal by the Government on behalf of the Highways Department, the High Court
took the view that the culvert collapsed because of the heavy downpour of rain and also the breach of a small tank and that justified the deletion of
the liability on the Highways Department. 6n further appeal to the Supreme Court, the Court pointed out that merely because the cause of the
accident was heavy rain and floods, the Highways Department could not be absolved of its liability, unless something further is indicated; that
necessary preventive measures had been taken in anticipation of such rain and floods and in its absence, the High Court was not justified in
dismissing the suit, This decision also, in my view, does not assist the Corporation in any manner, as, it has earlier been found that the driver of the
bus TML.8364 had not observed care and caution for the safety of the passengers, but had rashly driven the bus across the submerged bridge and
that eventually led to the bus being washed off and the passengers losing their lives. It will be useful in this connection to refer to the decision relied
on by learned Counsel for the claimants in Mis. Chaurasiya and Company v. Smt. Pramila Rao 1974 A.C.J. 481, it has been observed as follows:
The question then is whether the driver was negligent and whether his negligence caused the death of the passengers. It cannot be doubted that the
driver owed a duty of care for the safety of the passengers. It is a matter of common experience that when a causeway or a bridge gets
submerged, it is very risky to cross it on a motor vehicle. In the instant case the water over the cause-way was about two feet; even the stones
embedded on the sides were completely submerged and were not visible. Further, the water was rising. In such a situation, it was extremely
dangerous for the safety of the passengers to drive the bus over the cause-way,. The driver should have wailed till the water receded and he should
not have attempted to cross the cause-way. The driver was clearly in breach of his duty which he owed to the passengers and was, therefore,
negligent....
The aforesaid observations are clearly applicable to these cases as well in view of the finding on the question of negligence rendered earlier on a
consideration of the evidence, negativing the claim of the Corporation that the accident arose out of an act of God. It would also be appropriate to
point out that now the defence based on act of God has undergone a total change in approach as a result of considerations of foreseeability of
harm.
There is also yet another aspect which would preclude the Corporation from putting forward the plea of act of God. It is not in dispute that even
prior to the disposal of the claim petitions by the tribunal, at the instance of the Corporation, the issue whether the accident was an act of God or
was due to the rash and negligent driving of the bus TML.8364 by its. driver was tried as a preliminary issue and a finding adverse to the
Corporation had been rendered. That finding had been allowed by the Corporation to become final and not having been challenged in a manner
known to law, the Corporation cannot again re-agitate that question in the course of the present proceedings. Viewed, therefore, from any point of
view, the tribunal was quite justified in its conclusion that the rash and negligent driving of the bus TML8364 by its driver caused the accident on
12.11.1985, in which a number of people lost their lives and some had also sustained injuries. The tribunal was, therefore, right in its conclusion in
this regard.
On the question of compensation, Mr. R. Krishnamurthi very fairly stated that it is difficult to question the amount of compensation awarded to
the claimants, as, in most of the cases, the compensation awarded by the tribunal was less than the compensation awardable on the principle of no
fault. However, the claimants in C.M. A. No. 410 of 90 and the cross objection Nos. 119 of 1992,138 of 1991,59 of 1992 and 148 of 1991 in
C.M.A. Nos. 332, 344,597 and 798 of 1990 respectively have prayed for enhanced compensation.
In C.M.A. No. 410 of 1990 arising out of the award in M.CO.P. No. 17 of 1986, the claimants have prayed for the award of additional
compensation in a sum of Rs. 35,000 restricting the total amount of compensation to Rs. 50,000 against Rs. 1,00,000 claimed in the claim petition.
The deceased in that case was one Sornammal, wife of the first appellant and mother of appellants 2 to 6. Though it was claimed that the deceased
was aged about 38 year sat the time of her death and she was also contributing Rs. 1,000 per mensem, the appellants did not place any reliable or
acceptable evidence in support of the same. The tribunal proceeded to determine the compensation award-able in a sum of Rs. 20,000 but
deducted Rs. 5,000 representing the ex-gratia payment made by the Government and ultimately awarded to the appellants in C.M.A. No. 410 of
90 compensation in a sum of Rs. 15,000 together with interest at 12 per cent per annum from 10.1.86. Mr. A.K. Kumaraswami, learned Counsel
for the appellants in C.M.A. No. 410 of 1990 first contended that the deduction by the tribunal of a sum of Rs. 5,000 from the compensation
awardable in a sum of Rs. 20,000 was not justified at all. Reliance was also placed upon the decisions reported in A.P. Dorairaj v. State of
Madras by Commissioner of Police 1974 A.C.J. 174 and K. Vasantha and 3 Ors. v. Venugopal Achari and 2 Ors. 1987 T.L.N.J. 196.
In so far as the deduction of Rs. 5,000 from out of the amount of compensation awardable to the claimants is concerned, the tribunal fell into a
error. The payment made to the appellants on the death of Sornammal was ex-gratia and not refer able to any claim as such under the provisions
of the Motor Vehicles Act. It is in this context that the decisions relied on by learned Counsel are relevant. In A.P. Dorairaj v. State of Madras by
Commissioner of Police 1974 A.C.J. 174, it has been clearly laid down that the law is quite clear that gratuitous payment should not be taken into
consideration in assessing the compensation awardable. Again in K. Vasantha and three Ors. v. Venugopal Achari and two others 1987 T.L.N.J.
196, it was reiterated that amounts paid towards family benefit could not be deducted and in so holding, reference has been made to a decision of
an earlier Division Bench to the effect that an ex-gratia payment made by the Government should not be taken into account in calculating the
compensation payable, which is on different principles. In view of the principles referred to above, the tribunal was in error in deducting a sum of
Rs. 5,000 from out of the compensation-amount of Rs. 20,000 determined by it. It is further seen that the first appellant had lost, by reason of the
death of Sornammal, the love and affection of his wife as well as the consortium and the children have lost for ever the kindness, love and affection
of the mother, besides the benefit of her service till they attain a footing in life. Taking into account these aspects, it would be just, lair and
reasonable to award to the appellants in C.M.A. No. 410 of 1990 a total compensation in a sum of Rs. 30,000 in respect of the death of
Sornammal, together with interest at 12% per annum from 10.1.1986 till the date of payment, credit being given to payments, if any made
meanwhile. Out of the amount of Rs. 30,000 each of the six appellants would be entitled to Rs. 5,000 together with interest as stated earlier and
the share of minor appellants 4 to 6 will remain invested as a Fixed Deposit in a nationalised or scheduled bank on cumulative basis till such time as
each of the minors attains majority. The award in M.CO.P. No. 17 of 86 will, therefore, stand modified as indicated earlier.
In cross objection No. 119 of 1992 in C.M. A.332 of 1990, the claimant has prayed that an additional compensation in a sum of Rs. 5,000
should be awarded to him. The cross objector had lost his son aged about one year in the accident that took place on 12.11.1985 and had
claimed Rs. 15,000 by way of compensation. The tribunal had, however, awarded compensation in a sum of Rs. 10,000 together with interest at
12% per annum from 5.2.1986. The accident having been taken place on 12.11.1985, long after 1.10.1982, when the compensation for death,
even on the principle of no fault was Rs. 15,000 the tribunal was not justified in not awarding to the cross-objector, compensation as claimed by
him in a sum of Rs. 15,000. On the materials available, there is no justification whatever for reducing the amount of compensation. The award of
the tribunal in M.CO.P. No. 55 of 1986 will stand modified in that the claimant therein will be entitled to recover compensation in a sum of Rs.
15,000 together with interest thereon at 12% per annum from 5.2.1986 till the date of payment, credit being given to payments, if any, made
meanwhile.
In regard to Gross Objection No. 138 of 1991 in C.M.A. No. 344 of 1990, it is seen that the mother of the cross objector, had lost her life in
the accident, in respect of which compensation'' in a sum of Rs. 50,000 was prayed for. The tribunal however, had awarded compensation in a
sum of Rs. 15,000 together with interest at 12% per anum from 28.4.1986. The Cross Objector has prayed that additional compensation in a sum
of Rs. 35,000 should be awarded to her. According to the case of the cross-objector, at the time of her death her mother was aged about 44
years and was earning daily on an average Rs. 20 to Rs. 40 by vending vegetables. Though there is no acceptable evidence to show the age of the
deceased or her earning even by doing work, the deceased would have been in a, position to earn at least Rs. 10 per day or Rs. 300 per mensem.
The cross-objector is the only daughter of the deceased as per evidence. Though she might have been married and in that sense not wholly
dependant upon the earnings of her mother, it is not uncommon for mothers to lavish their love and affection on their only child, as in this case, and
whatever earnings the deceased could have saved, would, in the normal course have been made available to the cross-objector, had the mother
been alive. Considering the age of the claimant, the deceased should have been about 50 years at the time of her death and at best, she could-have
lived for 15 more years taking the average longevity as 65 and would have contributed not less than Rs. 27,000 after meeting her own expenses
out of her earnings and that had been lost to the cross-objector as a result of the sudden demise of her mother. Making a provision for other
uncertainties in life and also taking into account the lumpsum payment, to the cross-objector, it would, in my view, be just, fair and reasonable to
award to her compensation in a sum of Rs. 25,000 together with interest at 12% per annum from 28.4.1986 till the date of payment, credit being
given to payments, if any, made meanwhile. The award of the tribunal in M.C.O.P. No. 159 of 1986 will stand modified as indicated earlier.
In regard to Cross Objection No. 59 of 1992 in C.M.A. No. 597 of 1990 it is seen that the cross-objector had lost her mother in the accident
that took place on 12.11.1985 and in respect of that, award of compensation in a sum of Rs. 15,000 had been prayed for. The tribunal had
awarded compensation in a sum of Rs. 10,000 together with interest thereon at 12% per annum from 5.2.1986. The claimant, in this cross-
objection has prayed for the award of additional compensation in a sum of Rs. 5,000. It is seen that having regard to the date of the accident, even
on the application of the principle of no liability, the claimant would be entitled to payment of compensation in a sum of Rs. 15,000. It is true that
there is no evidence to show that deceased Anjalai was supporting the cross-objector''s family. However, on the application of the principle of no
fault, the cross-objector should have been awarded compensation in a sum of Rs. 15,000 together with interest thereon at 12% per annum from
5.2.1986 till the date of payment, credit being given to payments, if any, made meanwhile. The amount awarded, as directed by the tribunal, will be
invested in a nationalised or scheduled bank. The award of the tribunal in M.C.O.P. No. 54 of 1986 will stand modified as indicated earlier.
Regarding Cross Objection No. ''l48 of 1991 in C.M.A No. 798 of 1990, it is seen that the cross-objector had prayed for the award of
compensation in a sum of Rs. 50,000, but the tribunal had awarded Rs. 15,000. The disallowed portion of compensation in a sum of Rs. 35,000
forms the subject matter of the cross-objection. The son of the cross-objector, his daughter-in-law and two grand-children were washed away in
the floods as a result of the accident to the bus and the entire family of the cross-objector has thus been wiped out. In that context, the cross-
objector would naturally have to depend on others for the rest of his lifetime for comfort and support and the compensation awardable should be
such as to secure to him for the rest of his lifetime the minimum comforts and in that view, the compensation awarded by the tribunal cannot be said
to be adequate. Further, the age of the cross-objector has also to be taken into account and that was stated to be 65 and considering the loss of
the entire family, the affection of the son, daughter-in-law as well as that of the grand-children in old age and the need to depend on others for his
daily needs, as some solace and comfort to the claimant, it would be, in my view, fair, just and reasonable to award to the cross-objector
compensation in a sum of Rs. 25,000 together with interest at 12% per annum from 16.6.1986 till the date of payment, credit being given to
payments, if any, made meanwhile the award of the tribunal in M.C.O.P. No. 304 of 1986 will stand modified as indicated earlier.
In the result, C.M.A. Nos. 199, 243, 244, 246, 305, 307, 332, 344, 597, 599, 796, 797 and 798 of 1990 and C.R.P. Nos. 847, 849 and
1232 of 1990 will all stand dismissed, while C.M.A. No. 410 of 1990 and Cross objection Nos. 138 and 148 of 1991 in C.M.A. Nos. 344 and
798 of 1990 will stand allowed in part and the awards of the tribunal in M.CO.P. Nos. 17,159 and 304 of 1986 will stand modified as indicated
earlier. Cross Objection Nos. 119 and 59 of 1992 in C.M.A. Nos. 332 and 597 of 1990 will stand allowed and the awards of the tribunal in
M.CO.P. Nos. 55 and 54 of 1986 Will stand modified as indicated earlier. There will be, however, no order as to costs either in. the appeal
revisions or in the memoranda of cross-objections.