Haghuvir, J.:-

(1) The civil miscellaneous appeal ard cross objections are filed against the decree and judgment of the learned additional district judge and motor accident tribunal, kurnool in m. V o p. No if of 1969 dated 5th january 1972. The 3rd respondfnt, namely. , the government of andhra pradesh, is the appellant herein.

(2) On 6 - 12 - 1968, m veer naidu, the 3rd respondent in this appea/, was driving tipper vehicle no. Apv 4270, loaded with jelly, aud was proceeding towards srrsallam dam site at k m. Stones, 3/6 and 3/5 on ghat road at the second turning he was proceeding at high speed and come across a jeep a p. Q. No 2208, the 4th respondent, shaik salam, was at its wheel. In this jeep late k. Sreerama - murthy a junior engineer of the p. W. D; janaklramaiah, an assistant engineer chalasani rangarao, a supervisor and one p. V. Ramanaiah and some others were proceeding towards srisailam colony for their lunch after working at the dam site. The jeep was negotiating upgradlent at that spot.

(3) After seeing the jeep, the 3rd respondent swered his vehicle suddenly from the middle of the road to the left side, and in so doing, the rear side of the tipper hit the jeep on its rear right side. As a result of this collision shrl ramamurthy sustained extensive injuries. One of his fractured bones penetrated into his lungs and caused his instantaneous death. The 3rd respondent even afcer the accident, did not stop the vehicle, however, the deceased was taken to the government hospital at srisallam project colony, where he was pronounced as dead.

(4) M. V. Naidu, the 3rd respondent was prosecuted for rash and negligent driving and convicted under sec, 304 - a i. P. C, in crl. Case no. 35/69 on 29 - 6 - 1969 and was sentenced to undergo r. I. , for one year.

(5) Mrs. K. Padmaranl, is the widow of late k. Ramamurty. And miss bramarasri is minor danghter. They filed a claim against the respondents for damages amounting to rupees one lakh. The tribunal in its order dated 5 - 1 - 1972 awarded a sum of rs. 25,000/ - and costs to the climants. As stated earlier, the state of andhra pradesh filed this appeal alleging that the amount awarded is exctssive. The claimants filed the cross objections on 17 - 2 - 1773 for a sum of rs. 75,000/ - against the disallowance of the claim made before the trlbunal it appears, the claimants having filed this claim on 24 - 11 - 69 under the motor vehicles act, 1939, also filed on 20 - 5 - 1970 a claim under the workmen's compensation act (act 8 of 1923.)

(6) The following three points have been argued before the. Tribunal and the same contentions are reiterated before us:

(i) it was argued that the two dependants of sreeramamurty filed ex. B - 2, the claim petition, before the comm!ssloner for workmen's compensation for a sum of rs. 10,000/ -. This claim in ex. B - 2 came to be dismissed for default on 26 - 9 - 1 970. Therefore, it was argued that the present claim under motor vehicles act, 1939 is barred as the claimants had pursued their remedy under the workmen's compensation act.

(ii) the two vehicles a. P. V. 4270 (tipper) and a. P. C. No. 2208 (jeep) were owned by the state of andhra pradesh. For rash and negligent driving, the state of andhra pradesh could not have been made liable in as such as for any tortious act, the state is immune for liabilities. This is elaborated stating these two vehicles were working at dam site ofsrisallam project, a state undertaking partaking the character of a sovereign act. (iii) the third contention raised was about the quantum of compensation - it was argued that the climants were not entitled to more than rs. 10,000/ - as contemplated under workmen's compensation act. It is further argued that the claimants are not entitled to a sum of rs. 25. 000/ - while the respondents in the cross objections argued that the tribunal while granting rs. 25. 000/ - unjustly disallowed a sum of rs. 75. 000/ -

(7) Regarding the accident, the tribunal found that 3rd respondent was driving vehicle a. P. V. 4270 (tipper) in a rash and negligent manner and his neglgence caused the collision and the death of the deceased. It is not seriously argued before us that in driving the tipper, there was no negligence on the part of the 3rd respondent. Therefore, we affirm the finding of the tribunal on this aspect of the matter.

(8) About the claim under the workmen's compensation act, we may note* by act 56 of 1969 section 110 - aa was introduced in the motor vehicles act, 1939, which reads thus: -

110 - aa - opt/on regarding claim for compensation in certain cases. - - notwithstanding anything contained in workmen's compensation act 1023 (8 of 1923) where the death of or bodily injury to any person gives rise to claim for compensation under this act and also under the workmen's compensation act, 1923, the person entitled to compensation may claim such compensation under either of those acts,but not under both,"

(9) The two dependants of srlramamuity, first filed their claim under the motor vehicles act on 24 - 11 - 1969 and later filed their claim under workmen's compensation act. Realising that they cannot claim compensation under both the acts, they did not pursue the matter under the workmen's compensation act and on 26 - 9 - 1979 their claim in ex. B - 2 was dl - missed for default. In view of section110 - aa of the motor vehicles act, 1939, the present claim, which was also earlier in point of time, we hold, is not barred. In this vlew of the matter, we see no force in the first contention of che appellants.

(10) What fs seriously argued before us by the learned government pleader, in support of his second contention i$: srisallam project is a state undertaking, which partakes the character of a sovereign act. Therefore, placing reliance upon decisions in krishnamurty v. State of andhra (1960 - ii an. W. R. 502) and kasturl lai. V. State of u. P. (air. 1965 s. C, 1039) , it is argued that where acts are referrable to the exercise of sovereign powers delegated to public servants and acts committed by public servants in the course of discharging such duties even if they are negligent, a citizen cannot maintain a claim for damages againsc the state for such tortuous acts, as in law, the state is immune from such claims. However it is accepted. If the tortuous act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie.

(11) It is argued, srisallam hydro electric project where the deceased was employed as a junior engineer, the state was discharging a sovereign function. Regarding this project, the fibunal held 'the construction of srisailam dam site fs not a statutory. Act', so as to warrant an inference that the construction in question is referable to sovereign powers. The lower court further found

"the construction of the project is an undertaking (or activity entered into) by the government in pursuit of its welfare ideal and as such is not an activity in which the exercise of sovereign power is involved"

. So far as the character of this work is concerned, nothing is argued before us as to why the construction of srisallam hydro electric project should be construed as sovereign act, except merely stating the government is pursuing this project as a governmental or sovereign function. In the absence of any material, it is not possible for us to disagree with' the finding given by the tribunal though we may not wholly approve the reasoning given by it.

(12) In a recent case, the supreme court had to consider the aspect of sovereign function and a welfare activity in shyam sunder v. State of rajasthan (air. I974s. C. 890) where the state of rajasthan was engaged in famine relief work, and the supreme court stated that famine relief work is not a sovereign function of the state as it has been traditionally understood and it is a work which can be and is being undertaken by private individuals.

"there is nothing peculiar about it so chat it might be predicated that the state alone can legitimately undertake the work"

.

(13) That apart we find sec. 110 (i) of the motor vehicles act, 1939, states, a state government may, by notification in the official gazette, constitute one or more motor accidents claims tribunals for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles or damages to any property of a third party so arising or both.

(14) Section 110 - b in so far. As it is material, reads thus:

"110 - b: award of the claims tribunal:. The claims tribunal shall, after giving the parties an opportunity of being heard, hold an inquiry into che claim and may make an award determining the amount of compensation which appears to it to be just and specifying, the person or persons to whom compensation shall be paid' rules have been made pursuant to power under section 110. Rule 530: clause (3) , provides for:"

appropriate acclon against' the driver and the owner of the vehicle is concerned'' that means; the owner and the driver are also mentioned as being persons who are liable not only for damages but also for criminal prosecution

(15) As per article 300 (i) of the constitution ofjndia, the government of india may sue or be sued by the name of the union of india and likewise, the state government may sue or be sued by the name of the state, and may, subject to any provisions which may be made by act of parliament or of the legislature of such state enacted by virtue of powers conferred by this constitution, sue or be sued in relation to their respective affairs in the like cases as the dominion of india and the corresponding provinces or the corresponding indian states might have sued or been sued if this constitution had not been enacted. Therefore, after the amendment of section 110 of the motor vehicles act, 1939 by the amending act 100 of 1956, which came into force on 16 - 2 - 1957, the parliament has, in categorical terms by introduction of these sections, stated that if, while driving a motor vehicle (which includes a vehicle owned by the state government or by government of india) the owner of the vehicle is liable to pay compensation to the persons who are entitled to claim damages. In other words, section 110 and the rules made thereunder, expressly makes every owner of the vehicle, including the government, liable for the tortuous acts of its servants, while driving the vehicle. Therefore, after the amending act 100 of 1956, by which section 110 - a of the motor vehicles act, 1939 has been inserted, the distinction of sovereign and non - soverelf acts of the state no longer exists as all owners of vehicles are brought within the scope of this section. Whether the state is bound by the provisions of rhe act, is no longer resmtegra. In earlier cases, including the case in province of bombay v the municipal corporation of the city of bombay 14) (air. 1947 p c 34 (v34) , it was held, unless it is specifically exempted, the rule of construction was that the state is not liable this decision in province of bombay v. The municipal corporation of the city of bombay (4) (air 1947 p. C. 34 (v34) came to be approved in director of rationing and distribution v. The corporation of calcutta (5) air. 1960 sc. 1355) , but the supreme court in state of w. B v. Corporation of calcutta (6) (air. 1967 s. C. 997) reversed this rule of construction in that judgment, the legal position in england was referred to as follows : -

"the substantive rule of law is that the prerogative of the crown can only be taken away by law. The rule of construction evolved by the courts to ascertain the legislative intention is, that it is presumed that a statute has not taken away the prescriptive right unless it has expressly or by necessary implication done so."

(16) Referring to the earlier judgments of the supreme court, subbarao, c. J. , in paragraph (12) of the report observes as follows: -

". A careful study of these decisions discloses that all of them related to particular prerogatives of the crown and that the court held either that the prerogative of the crown was taken away by the statute or not, having regard to the construction placed by it on the relevant statute. It is true that in some of the decisions the said rule of construction was noticed, but as the decisions turned upon the construction of the relevant provisions, it could not be said that the said rule had been accepted as an inflexible rule of construction by the bombay high court. In one of the judgments even the applicability of the rule of construction was doubted.

(17) After considering some of the american cases, the learned chief justice observed thus : -

". Wherever an exemption was intended to be given to the government it was expressly mentioned and whereever there might have been any doubt of the liability of the government, ft was expressly made liable the rule of construction was not siatutorily recognised either by incorporating it in different acts or any general clauses act; at the most, it was relied upon as a rule of general guidance in some parts of they country"

And finally stated as follows :

". The normal construction, namely that the general act applies to citizens as well as to state unless it expressly or by necessary implication exempts the state from its operation, steers clear of all the said anomalies it prima facie applies to all states and subjects alike, a construction consistent with the philosophy of equality enshrined in our constitution. This natural approach avoids the archaic rule and moves with the modern trends. This will not cause any hardship to the state. The state can make an act, if it chooses, providing for its exemption from its operation. Though the state is not expressly exempted from the operation of an act, under certain circumstances such an exemption may necesarlly be implied. Such an act, provided it does not infringe fundamental rights, with give the necessary relief to the state we, therefore hold that the said cannon of construction was not 'the law in force' within the meaning of art. 372 of the constitution and that in any event having regard to the foregcing reasons the said cannon of construction should not be applied for construing statutes in india. In this view it is not necessary to express our opinion on the question whether the aforesaid rule of construction would not apply to the trade activities of the state. Even if it applied to its sovereign activities

(18) Therefore, basing upon this rule of construction, even if the motor vehicle is to be owned by the state government and should there be any tortlous act like rash and negligent driving by a public servant, the claim of the citizen cannot be resisted on the ground that the tortious a,ct was committed by the state government employees or the public servants. While the state was pursuing a sovereign function,

(19) The next question that is argued by the lesrned government pleader is that the award of rs 25,000/ - by way of damages to the claimants is excessive. Before we advert to the quantum of compensation, we shall advert to the preliminary objection raised by the learned government pleader wich regard to the maintainability of the cross objections, in support of what he relied upon a judgment of this court in c. M. As. Nos. 493 and 494 of i972 dated 6 - 8 - 1973, wherin the learned single judge held that cross objections are not maintainable in an appeal filed under sec. 110 - d of the motor vehicles act, 1939.

(20) The relevant portion of sec. 110 - d of the motor vehicles act, 1939 is as follows: -

"110 - dr appeals: (i) subject to the provisions of sub - section (2) , any person aggrieved by an award of a claims tribunal may, within ninety days from tha award, prefer an appeal to the high court ,"

(21) While there is an appeal provided to the high court, nothing further is stated about the procedure in this section

(22) In national telephone co. Ltd. , v. Postmaster general (1913) ac 546) dealing with a similar objection as regards the maintainability of an appeal, the house of lords held: -

"when a question is stated to be referred co an established court without more, it in my opinion imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decision like wise attaches."

(23) These observations of the house of lords were relied en by the privy council in adaikappa chettlar v. Chandrasekhara thevar (8) (i948p. C. I2) wherein it was said: -

"where a legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable shereto and appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal."

(24) Under madras forests act, when a similar question arose the full bench of the madras right court in kamaraju v. Secretary of state for india (ilr 11 mad, 309 f. B.) held, where an appeal was preferred to the district court against fhe decision of the forest settlement officer under section 10 (2) , the appeal is preferred to the district court as one of the ordinary courts of the country with regard to whose procedure, order and decree the ordinary rules of civil procedure code would apply. The privy council in secretary of state for india v. Chellikani ramarao (10) (air 1916 p. C. 21) adverting to similar objection, stated thus: -

"it was contended on behalf of the appellant that all furthe procedings in courts in india or by way of appeal were incompetent, these beingexcluded by the terms of the statute just quoted. In their lordships' opinion thfs objection is not well founded. Their view is that when procedings of this character reach the district court, that court is appealed to as one of the ordinary courts of the country, with regard to whose procedure orders and decrees the ordinary rules of the civil procedure code apply."

(25) In n. S. Thread co. V. James chadw/ck and bros (ii) (air 1953 sc 357) the supreme court construing section 76 of the trade marks act 1940, where a right of appeal is directed to the high court and nothing more is - stated observed :

"that being so, the high court being seized as such of the appellate jurisdiction conferred by section 76 it has to exercise that jurisidiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single judge, his judgment becomes subject to appeal under cl. 15 of the letters patent there being nothing to the contrary in the trade marks act."

(26) A similar objection about the maintainability of cross - objections arose in the madhya pjradesh high court at jabalpur in manjula devi bhuta and another v, manjusrlraha and others (12) (1968 acj. I) where ft was held at page 13 of the report, as follows: -

"we are of the opinion that as soon as this court becomes se/zed of an appeal, even where an appellate jurisdiction is conferred under a special statute, the rules of practice and procedure of this court applicable to a civil appeal will, in the absence of any specific rule to the contrary govern such appeal."

(27) The decision in secretary of state for india v. Che. Ikanl ramarao (10) (air 1916 p. C. 21) and n. S. Thread co. V. James chadwick and bros. (ii) (air 1953 sc 357) , were relied upon by the madhya pradesh high court.

(28) In delhi transport undertaking and another v. Raj kumari and oth'ers (!3) (1972 a. C. J. 403) , the delhi high court adverting to a similar objection, followed the decision of madhya pradesh high court in manjula devi b butt a and another v. Manjusrl reha and others (i2; (i968 acj. I) and held: -

"as soon as the high court becomes seized of an appeal, even where an appellate jurisdiction is conferred under a special statute, the rules of practice and procedure of the said court become applicable to the appeal unless there is any specific rule to the contrary in the special statute."

(29) In w. S. Bhagsingh and sons, v. Om prakash kaith (14) (1971 acj. 324) the delhi high court, following their earlier decision, observed thus : -

"the learned counsel for the respondents has not been able to cite any decision contra to the one cited by the learned counsellor the petitioners and which would support his own contention. The practice in this court also appears to permit the filing of cross objection when appeals are filed against judgment of the tribunal. I, therefore, hold that the cross - objections filed by the petitioners are maintainable. ' in the union co - operative insurance society limited, madras v. Laza - rammal ravel and others (15) (1974 iimlj. 160) a division bench of the madras high court has raken similar view and held

: -

"4, regarding the cross objections two preliminary objections, were raised, the first is that the appeal being one arising under a special statute, and the civil procedure code, not being applicable to the tribunal constituted under the said statute, viz. The motor vehicles act, 1939, no cross - objection can be filed. It is pointed out that under section 11 0 - d, though there is provision for any of the aggrieved parties to file an appeal, there is nothing in the section permitting a respondent to an appeal to file cross objection.

(30) In support of this contention, three decisions were relied on. The first is vedantacharsamf v. Sri muthiah chettl (1965 68 lw. 66).

" - under section 110 - d of the motor vehicles act, 1939, an appeal lies to this court. It muse be remembered that when once an appeal is entertained by this court, all the provlsions relating to the appellate - jurisdiction of this court are attracted. It'ts true that all the provisions of the civil proctdure code are not applicable to the tribunal, because it is a creature of the statute. But the appeal against the order of the tribunal is to the high court not to any other tribunal constituted under the statute, in secretary of state v. Ramarao (ilr 39 mad. 617 43 i. A. 192: 31 mlj. 322: air 1916 p. C. 21) the question was whether the ordinary rules of the civil procedure code, would apply to an appeal to the district court against the decision of the forest settlement officer under section 10 (2) of the madras forest act. The privy council pointed out that the appeal being to the district court which is one of the ordinary courts of the country, the ordinary rules of the civil procedure code, apply,."

(31) As we pointed out earlier, section 110 - d of the motor vehicles act contemplates an appeal to the high court, once an appeal is entertained by this court, all the rules in the civil procedure code would be applicable to such an appeal inasmuch as no other procedure is prescribed under the said act. That means, order 41 rule 22, civil procedure code would be applicable and the respondent in an appeal would be entitled to present a memorandum of cross objections as provided under the said rules. Venkataraman, j. In disposing of venka - tesan v. Ranganayakl (aao no, 162 of 1972) , has taken a similar view and we agree with the same.

(32) Therefore, we are of the opinion chat there is no substance in the preliminary objection raised by the learned government pleader and we hold. Following n s. Thread co. , v. James chad wick and bros (air 1953 sc 357) and the other decisions referred to earlier that the cross objections are maintainable

(33) The next question that is to be determined fs the quantum of compensation that is payable to the claimants. The two points to be borne in mind as regards the compensation are (i) the life expectancy of the deceased and (it) the income of the deceased at the time of the accident.

(34) These two aspects have been very lucidly staied in nance v. British columbia electric railway company ltd. (16) (1951 ac. 601 at 614) and approved by the supreme court in gobald motor service v. Veluswami (17) (air 1962 sc. 1).

(35) In a recent judgment of this court in the hindustan ideal insurance company v. Pakanti ankaiah and others. (18) (1972 - 1a p. Lj. 47) the division bench consisting of gopal rao ekbote, j. (as he then was) and one of us (ramachandra rao, j) at page 70 of the report, held thus : -

"the law on the question as to how in a case such as the present damages should be determined is clear. The plaintiff /s entitled to such a sum as will make good to him the financial loss which he has suffered and will sufer as a result of the death of his son. In calculating the pecuniary loss to the dependants many imponderables, however, enter into the calculations. Broadly, stated the principle is that the pecuniary loss should be ascertained by balancing on the one hand the loss to the claimants cf the future pecuniary benefits and on the other any, pecuniary advantage which from whatever source comes to them by reason of the death i. E. , the balance of loss and gain to a dependant by the death must be ascertained. It is however, clear that future iocs is necessarily conjectural. It is necessarily compounded of prophesy and calculation, if all has gone well, the deceased son would have earned larger sums for longer period so that he could have maintained the father and the other dependants at least at their standard of living at the time of h's death and made ocher provisions for their future. But all may not have gone weli. Any of them might have died prematurely. He might not have been able to earn larger sums and other misfortunes might have occured. So allowance must be made for this. In such circumstances what the court can do best is to arrive at a figure on a reasonable balance of the probabilities avoiding undue optimism as well as undue pessimism"

.

(36) Shri n. V. B. Shankara rao, the learned counsel appearing for the respondents in this appeal, in support of the cross - objections, stated that so far as the life expectancy of the deceased is concerned, the lower court estimated that he would have ordinarily lived up to an age of 60 years and to this finding, he does not raise any objection.

(37) In view of this, the only other question that is to be considered is as regards the income of the deceased at the time of his death. The deceased as a junior engineer had basic pay of rs. 265/ - and was drawing rs. 137/ - towards d. A since he was working at a project area, he was given an allowance of rs. 54/ - by way of unhealthy locality allow ance and an additional sum of rs. 30 as compensatory allowance. Thus in all he was getting rs. 486/ -. The counsel for the claimants would state that out of rs. 486/ - it is ordinarily expected that a sum of rs. 162/ - that is about one - third, would be spent on the deceased himself. Therefore, the balance of rs 324/ - (rs. 486 minus rs. 162) should be constdered as his monthly income of the deceased's family. Ramamurthy dled at the age of 31 years. He would have served in the government department for a period of 24 years, and earned ordinarily rs. 93,312/ - (i. E. , rs. 324x12 (months) x 24 years and, for the period between 55 years and 60 years, he would have had a pension of one third of what he would have received, that is one third of rs. 354/ - which is rs. 108/ - xl2 (months) x 5 (years) : rs. 6,480/ - , the learned counsel would add rs. 93,3i2/ - plus rs. 6,480/ - and state the claimants are entitled to rs. 99,792/ - by way of damages. That is how the cross objections for rs. 75,000/ - is sought to be justified over and above the sum awarded in the sum of rs. 25,000/ - by the tribunal. We have, in the earlier portion of this judgment, stated, the state government has filed this appeal, stating that what is awarded is excessive and the claimants ought to have been given only a sum of rs 10,000/ -.

(38) In regard to the unhealthy locality allowance of rs. 54/ - and compensatory allowance of rs. 30/ - which was payable to the deceased as he was working at srisailam dam site it is not possible to state, ordinarily he would have remaines posted at the dam site for long. Therefore, we are of the opinion that the unhealthy locality allowance and the compensatory allowance are to be excluded from the income of the deceased. Therefore, in ascertaining the income of the deceased, these two counts, totalling rs. 84/ - will have to be excluded from rs. 486/ -. Thus, we consider the salary of the deceased was his basic pay of rs. 1651 - plus his d. A. Of rs. 137/ - that is rs. 402/ - and ordinarily we expect him to spend half of the amount on himself and the balance on his dependants, that would be about rs. 200/ - on the dependants i. E. , claimants - respondents.

(39) Kegarding pensfon lt must be stated that under death - cum - retirement scheme, the wife of the deceased is being paid by the appellant rs. 50/ - and the child of the deceased rs. 13/ - per month. It is stated by the learned counsel for the respondents, ordinarily, one - third of the salary would be the pension amount payable to the government servants. If worked out, that would amount to rs. 135 and half of that amount is rs. 65 which amount the state government is paying to the claimants. Therefore, for the five years after retirement, that is 55 years, nothing is payable so far as the dependants are concerned, as the appellants are paying under the death - cum - retirement scheme.

(40) Thus, out of rs. 402/ - the income of the deceased, half the amount the deceased would have spent on the claimants, and if rs. 63/ - are to be deducted from that half, it comes to roughly about rs. 138/ - per month. Therefore, the compensation payable is rs. 138 x 12 (months) x 24 years - rs. 39,746/ -. Out of the said amount, since the accelerated payment by way of lumpsum is being made, the interest which the amount would earn, has to be deducted. As a prudent man. If the claimant deposits the said amount in a bank in a fixed deposit account for a long period, he would easily get interest thereon at 6% per annum. So calculated, it comes to rs. 2385/ -. If this amount of interest is deducted, the amount of compensation payable conies to rs. 37,361/ -. Rounding off this figure to rs. 38,000/ - we consider it reasonable to award a sum of rs. 38,000/ - as and by way of damages to the claimants.

(41) In the above view, the cm. A. , is dismissed and, in the circumstances, we award no costs cross objections to the extent of rs. 13,000/ - over and above rs. 25,000/ - is also allowed, but. In the circumstances, there will be no order as to costs.