1. Leave granted in the SLPs.

2. Several important issues - whether omission to perform public law statutory duties can or cannot give rise to action at private law (Point 4) and liability of public bodies in tort while performing inherently dangerous operations (Point 3) etc. arise for consideration in this batch of cases.

3. This is a batch of appeals preferred by the Union of India represented by the General Manager, Southern Railway. The accident occurred on 9.5.1979 at an unmanned level crossing at Akaparamba (near Kalady) in Kerala when a hired passenger-bus was hit by Jayanthi Janatha Express at about 3 PM and 40 passengers in the bus and the driver thereof were killed while some other passengers sustained injuries. Two judgments of the Motor Accidents Claims Tribunal, Ernakulam in regard to the same accident are under appeal before us. In one batch of cases filed by dependents of deceased and injured persons, the Motor Accidents Claims Tribunal, Ernakulam by judgment dated 28.2.1986 held that the driver of the bus was negligent and passed awards against the owner of the bus and the Insurance Company but dismissed the claim against the Railway on the ground that there was no negligence on the part of the driver of the railway-engine concerned or on part of the Railway Administration. The liability of the Insurance Company was restricted to a maximum of Rs. 5000/- per passenger as per the statutory provisions then in force. On appeals by the Insurance Company, cross objections were preferred by claimants (in some cases). The appeals and cross objections filed were partly allowed by the High Court, making the Railways also liable. In two other cases, which were decided in an earlier judgment dated 27.9.1984, the same Tribunal at Ernakulam had held the Railways Administration also liable on account of its negligence in regard to the same accident. However, in both judgments, it was held that under Ss. 110(1) and 110B of the Motor Vehicles Act, 1939 an award could be passed against the railway also which view was accepted by the High Court. Against all these judgments, the Union of India has preferred these Civil Appeals. Stay of operation of the judgments was refused by this Court, pending these appeals.

4. The facts of the case are as follows:

"The motor vehicle in question belonged to one K. Arumugham of Arni, Tamilnadu and was hired by employees, of the Survey and Land Records Dept. of the Tamilnadu State for a trip to Trivandrum, Cochin, Kalady, Guruvayoor, etc. in Kerala. On Rajan was the Manager of the tour. On 7.5.1979 the Bus started at Trivandrum for Cochin. There was some delay on the way and the passengers were finding fault with the driver in regard to the said delay. It appears that the driver was angry with some of the passengers who found fault with him for delay and he told them that he would abandon the bus and leave the passengers in the forest By noon, the bus reached Cochin and proceeded to Kalady via Angamali. The bus was to cross an unmanned level crossing at Akaparamba at about 3 pm. The said railway crossing had no gates or stiles. It is now found on evidence that the 'caution board' at the entrance of the level crossing was moth eaten and the writings thereon could not be deciphered by any one even if one was inclined to read. The train was visible to the driver and passengers at a distance of 1km. The driver drove the vehicle and was crossing the railway line when the vehicle stopped on the track and did not move. The passengers cried and shouted in panic but the bus remained there and was pushed upto a distance of 500 meters by the locomotive. In that process forty passengers and the driver died while some other passengers were injured".

5. We have heard the counsel on both sides. From the submissions the following points arise for consideration:

(1) What are the common law duties of a motor vehicle driver at a railway level crossing? Whether, on facts, the bus driver was negligent?

(2) Whet