Stationary bus accident from landslide arises out of vehicle use due to proximate nexus; driver's unsafe parking in foreseeable risky terrain constitutes negligence, barring 'Act of God' defense; ex gratia payments non-deductible from statutory compensation.

Judgment :

Pankaj Purohit, J.

Since these appeals are arising out of a common accident and common question of law and facts are involved, hence, these are taken up together and being decided by this common judgment.

2. Appeal No.201 of 2015 and Cross Appeal No.02 of 2015 have been preferred by appellant(s), under Section 173 of the Motor Vehicles Act, 1988, (hereinafter to be referred to as ‘the Act’) assailing judgment and award dated 10.02.2015 passed by learned Motor Accident Claims Tribunal/1^st Additional District Judge, Nainital, in M.A.C.P. No.141 of 2013 Neeraj Upreti and Another Vs. Uttarakhand Transport Corporation and Another , whereby, learned Tribunal awarded compensation of Rs. 26,90,000 with interest @8% per annum. Appeal No.202 of 2015 and Cross Appeal No.01 of 2015 have been preferred by appellant(s), under of the Motor Vehicles Act, 1988, (hereinafter to be referred to as ‘the Act’) assailing judgment and award dated 10.02.2015 passed by learned Motor Accident Claims Tribunal/1st Additional District Judge, Nainital, in M.A.C.P. No.140 of 2013 Neeraj Upreti and Another Vs. Uttarakhand Transport Corporation and Another , whereby, learned Tribunal awarded compensation of Rs.4,55,600/- with the same rate of interest.

3. Brief facts of the case are that on 17.06.2013 at about 8:30 a.m., deceased was travelling as a passenger in bus bearing Registration No.UK-07-PA/1440 of appellant- Corporation from Delhi to Gangolihat. When the bus reached near village Dhaulchina, Kasar Bend, District Almora, a tree had fallen on the road, due to which, it was stopped by the driver. It was further submitted that driver, conductor and some passengers got down from the bus to remove tree. During this time, suddenly a landslide occurred from the hill above, causing bus to be pushed and dragged off the road. As a result, bus fell down the slope along with passengers inside it, causing fatal injuries to Shri Hansa Datt Upreti and his wife Smt Lalita Upreti, who died on the spot. The deceased-Shri Hansa Datt Upreti was stated to be 52 years of age, healthy, and employed with the Intelligence Bureau (Ministry of Home Affairs), earning a monthly salary of Rs. 34,402/-. The respondents-claimants, being dependent sons of the deceased, claimed compensation of Rs. 70,00,000/- along with interest. The deceased–Smt Lalita Upreti was stated to be 48 years of age, healthy and it was alleged that she was earning around Rs. 10,000 per month by running a boutique. The respondents-claimants being her son, claimed a compensation of Rs. 46,50,000.

4. The respondents-claimants pleaded that it was due to negligence of bus driver that such an unfortunate accident took place. It was alleged that the accident occurred due to negligence of bus driver in parking the vehicle at an unsafe place despite adverse weather conditions. They pleaded that had the driver been more careful in assessing the situation and parked the bus at a safer distance then this unfortunate incident would not have taken place and both their parents would have been alive. They further submitted that they were completely dependent on their