JUDGMENT S.C. Mohapatra, J.
1. These three appeals under Section 110-D of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act) arise out of a common award under Section 110-B of the Act, one by claimants, another by the owner of the vehicle and third by the Insurer. Since the parties are the same and the appeals arise of the common Order and most of the questions are same, they are heard together and disposed by this judgment.
2. Owner's appeal has been dismissed for default. Mr. B.D. Mandhyan, Advocate, learned Counsel stated that the three appeals were being listed periodically for hearing. On the date the appeal of the owner was dismissed for default, he had inadvertently missed the list, he could not appear when the appeal was called for hearing. Other two appeals which were to be heard together with this appeal, however, has not been disposed of on that day. In such circumstances it is submitted that owner should not suffer on account of the mistake of the lawyer on whom he has trusted and had put reliance that appeal would be argued effectively along with other two appeals. If two other appeals would have been disposed of on that day, we might not have entertained such submission. When the other two appeals have not been disposed of as yet, interest of justice would be served in case owner of truck is also given opportunity to be heard on merit of the appeal. Accordingly, we recall order of dismissal and restore First Appeal No. 95 of 1979, which is to be heard along with other two appeals.
3. Claimants are widow of deceased aged 19 years and his parents. Their case is that deceased aged 21 years, who is only son of his parents, was employed by his sister as driver of their tractor. He went with the tractor to repairing shop on 3/4.10.1976 at about 3.30 a.m., when deceased was sleeping in front of the tractor at repairing shop, he was run over by the truck U.P.G. 5269 on account of the negligence of the driver as a result of which sustaining fatal injuries, deceased succumbed at the hospital. Therefore they claimed compensation of Rs. 4,82,000/- towards loss of dependency, affection, care consortium of all, companionship of the wife and funeral expenses.
4. Driver, owner and insurer against whom claim was made stated their cases separately, while accepting accident and death on account of the same, their case is that the truck was coming from Mathura side and proceedings towards Banjara side. At the Mathura-Banjara trijunction it took a turn to proceed. At the time the truck went towards the right. Finding some persons sleeping on the side of the road, who may be run over if the truck proceeds, driver swerved the truck to the left. At that time the Arm broke and driver had no control over the steering wheel of truck, which was not under control of driver, went towards the tractor repairing shop and run over two persons including the deceased. Thus there was no negligence of the driver and they are not liable. Deceased attributed to the accident as he was sleeping by the side of the road, owner placed that he not having authorised the driver to drive the truck, not liable. Insurer claimed that in case liability is fixed on owner, it would be liable to the extent of Rs. 50,000/- only.
5. Both claimant and the opposite parties supported their respective cases by oral evidence of witnesses and documents. Considering the same the Tribunal held that driver of the truck was negligent and owner of the truck is vicariously liable. It determined compensation at Rs. 1,57,000/- and deducting 33% on account of lump sum payment and uncertainty of life, it awarded Rs. 1,05,190/-, out of it Rs. 90,000/- was directed to be paid to the widow and balance to parents. Insurer's liability was limited to Rs. 50,000/- Claimants, owner and insurer are aggrieved by the award and have preferred the appeal.
6. First question to be considered is whether the driver was negligent in driving the vehicle. From the nature of the accident in which truck ran over two persons sleeping by the side of the road, a presumption can be drawn that driver of the truck was negligent in driving the truck at the time of accident. Claimants could have possibly adduced evidence not being present at the spot. Best witnesses who could have explained cause was the driver of the truck. He has not been examined and no cogent explanation is offered, by the owner, why he has not been examined. An adverse inference can be drawn that in case driver would have been examined he would have made statement which would have led to the inference that he was negligent. Apart from it, from the evidence available the same would be the inference. Very case in defence is that while taking a turn the truck moved to the right which gave an impression to the driver that it may run over some persons sleeping on the road side. This indicates that truck was beyond normal speed in turning for which it moved towards right. At the stage driver swerved the truck to the left which indicates that the Arm which is otherwise known as Rod and was in working condition. If at that stage driver lost control of the steering wheel because tie Rod end gave way, he could have changed the gear, applied break and stopped ignition to control the vehicle. It might be that the truck would have overturned. That would have been a lesser danger than proceeding ahead without control, but as has rightly been discussed by the Tribunal, there is no evidence that tie Rod end gave way at that stage. Police report (Ex.A-1) is not immediately prepared. Owner of the truck said the tie Rod end damaged in the morning. There is no evidence that chance of manoeuvring with the Rod end between 3.30 a.m. and next morning is absent. On such circumstances on the material on record Tribunal is correct that there was accident on account of negligence of the driver of the truck. Thus the driver is primarily liable to pay the compensation, owner is vicariously liable and insurer is liable to the extent of Rs. 50,000/- on account of death of the deceased to the claimants.
7. Quantum of compensation is the next question to be considered. Deceased has been held to be aged about 23 years at the time of his death. This finding calls for no interference. Learned Counsel for the claimant submitted that P.W. 8 having been examined to state that deceased was earning Rs. 300 per month, which was not effectively demolished, it should be accepted agree with the said submission. Learned Counsel for the owner submitted that there would be no loss in agricultural income. It is not wholly correct. Supervision of 5. deceased would be lost and persons giving land to the deceased on crop sharing basis may not like to adopt the same with the father of deceased. But, taking into consideration the totality of the circumstances, we agree with the Trial Court that annual loss of dependency would be Rs. 3500/-. Learned Counsel for the owner submitted that Tribunal has not taken into account the chance of remarriage of the widow, who was aged only 19 years without any child. Accident is of the year 1976. If additional evidence would have been adduced that widow has in the meantime within these 18 years remarried we would have considered the weight of submission. There is no such evidence. Learned Counsel for the claimants submitted that old parents, where average longevity of the family is proved to be around 90 years, young widow have lost the deceased who was only son of his parents. Anticipated care, love and affection and protection is lost to the claimants. No such circumstances, there should have been no deduction on account of lump sum payment and future uncertainty. There appears to be force in his contention when deduction is not statutory. He accordingly direct that claimant shall be entitled to compensation of Rs. 1,57,000/- as determined by the Tribunal.
8. Since the owner and insurer contested the claim and deprived claimants of the compensation, claimants shall be entitled to interest at the rate of 6% per annum from the date of application till payment is made. We, are sure that on the deposit of the amount Tribunal shall make some arrangement so that amount paid is secured for the benefit of the claimants.
9. In the result, all the three appeals are dismissed.