Branch Manager, Oriental Insurance Co. Ltd., Mandya vs Smt. B. Uma alias Uma

Ram Mohan Reddy, J.—Both the appeals arise out of common judgment and award while one is instituted by insurer of the offending tractor-trailer, the other is by the claimants.

MFA 3075/2015 of the insurer is grounded on the premise that the finding of actionable negligence on the driver of the tractor-trailer is perverse and; award of Rs. 12,96,000/- by addition of 30% towards future prospects towards loss of dependency is said to be on the higher side.

The appeal instituted by the claimants is grounded on the assertion that reckoning the income of the deceased as Rs. 9,000/- per month is perverse since the deceased had multiple business transactions and the award of Rs. 25,000/- towards loss of consortium is on the lower side, while nothing is awarded towards loss of love and affection to the minor children.

The submission of Sri. R.B. Raju, learned counsel for the insurer of the offending vehicle being a tractor-trailor, is that the rider of the motor cycle in a rash and negligent manner on a National highway on Mysore-Bangalore Road dashed against the trailor attached to the tractor, entering the road inter-section in the highway, to cross on to the other side of the highway, is noticed only to be rejected.

Regulation 8 of the Rules of Road Regulation 1989, promulgated in exercise powers conferred under Section 118 of the Motor Vehicles Act, 1988 (59/1988) by the Central Government, runs thus:

"8. Caution at road junction.� The driver of a motor vehicle shall slow down when approaching at a road inter-section, a road junction, pedestrian crossing or a road corner, and shall not enter any such inter-section, junction or crossing until he has become aware that he may do so without endangering the safety of persons thereon."

While Regulation 9 reads thus:

"9. Giving way to traffic at road junction.� The driver of a motor vehicle shall, on entering road inter-section at which traffic is not being regulated, if the road entered is a main road designated as such, give way to the vehicles proceeding along that road, and in any other case give way to all traffic approaching the inter-section on his right hand."

Regulations 8 and 9 are based on common sense approach requiring the users of highway to be cautious while users of inter-section to be circumspect and cautious while approaching the inter-section.

In the facts of this case, having regard to Ex. P.13, sketch of the scene of the accident and the place of impact, on the National highway, what is discernible is that the tractor attached with the trailor with a huge load of sugarcane was proceeding from the arterial road and entered the National highway at an inter-section to cross over to the other side of the road. The tractor traversed upto the inter-section in the National highway but the trailor occupied the entire National highway loaded with sugarcane. It must be noticed that the National highway is two way with a median in between and motor vehicles are permitted to travel at a certain speed and therefore, circumspection and caution was required to be exercised by the driver of the tractor-trailer when crossing the National highway at the road inter-section and having not exercised circumspection and thrown caution to wind cannot be permitted to contend that the motor cyclist was rash and negligent in riding the motor cycle. The tractor along with trailer loaded with sugarcane, it is needless to state, though crossed the inter-section nevertheless was on the highway causing an obstruction for the movement of Motor Vehicles from Mysore side to Bengaluru on the National highway. The driver of tractor-trailer though aware of entering the inter-section in the National highway threw caution to wind not noticing that it was endangering person on the National highway. In that view of the matter, no exception can be taken to the reasons, findings and conclusion arrived at by the MACT, attributing actionable negligence to the driver of the tractor-trailer.

The deceased was aged 32 as on 22-1-2013 the date of accident and the death. The school certificate date of accident and the death. The school certificate Ex. P11 and P12, disclose that the deceased left behind two minor children/claimants 2 and 3 and the 1st claimant widow aged 25. Although, there is not a titre of evidence to establish the fact that the deceased earned Rs. 30,000/- per month as income, nevertheless, the MACT, considering the age and occupation, reckoned Rs. 6,000/- per month as the income to which was added 30% towards future prospects, in the light of the decision of the Apex Court in Rajesh and others v. Rajbir Singh and others 2013 ACJ 1403, deducted l/4th from the income of the deceased towards personal expenses, and to the annual income, applied multiplier 16 to award Rs. 12,96,000/- towards loss of dependency, to which added Rs. 25,000/- each towards loss to estate, funeral expenses and consortium, totalling to Rs. 13,71,000/- with interest at 9% p.a. by the judgment and award impugned.

There is force in the submission of learned counsel for the insurer that in the absence of relevant material constituting substantial legal evidence that the deceased was in a permanent job/regular employment, or was self-employed or was engaged on fixed wages, as held in Sarla Verma v. Delhi Transport Corporation� (2009) 6 SCC 121 : (AIR 2009 SC 3104), addition of 30% towards future prospects, was perverse. The finding of the MACT at paragraph 12, that there was no material whatsoever over the assertions that the deceased was a businessman dealing in coconut and fish, earning Rs. 30,000/- per month, on guess work arrived at Rs. 6,000/- as monthly income. In that view of the matter, the MACT was not justified in adding Rs. 3,000/- per month as future prospects to arrive at Rs. 12,96,000/- towards loss of dependency.

During the year 2013, in the Lok Adalath it is recognised that an able bodied young man would earn Rs. 8,000/- per month and so reckoning, deducting ⅓rd since he had left behind widow and two minor children who were living separately and not with parents of the deceased as is set out in the evidence of RW.1, the mother of the deceased, the loss of dependency is Rs. 10,24,000/- (Rs. 8,000/- x ⅔ x 16) as against Rs. 12,96,000/-, hence reduction of Rs. 2,72,000/-. The MACT awarded Rs. 25,000/- towards loss of consortium, which is on the lower side and enhancing it to Rs. 1,00,000/-, is just and reasonable. The MACT did not award compensation towards loss of care and guidance for the two minor children, hence entitled to Rs. 1,00,000/-. Award of compensation of Rs. 25,000/- towards loss to estate and towards funeral expenses, does not call for interference.

In the circumstances, claimants are entitled to Rs. 12,49,000/- as against Rs. 13,71,000/- with interest at 9% p.a.

The MACT apportioned Rs. 2,00,000/- to respondents - 3 and 4, mother and father of the deceased. There is force in the submission of the learned counsel for the claimants that since the mother of the deceased examined as RW1 admitted that her son was not residing with them; and his wife and children were residing elsewhere, the apportionment is excessive.

Respondents - 3 and 4 though served are absent and unrepresented. In the view of the matter, there is a need to interfere with the apportionment of compensation.

In the result, appeal of the insurer is allowed in part. The judgment and award impugned is modified entitling the claimants to Rs. 12,49,000/- with interest at 9% p.a. The apportionment of Rs. 2,00,000/- each to the parents of the deceased is set-aside. The parents are awarded Rs. 1,00,000/- each which is directed to be kept in a term deposit in Post-office near to the residence of the parents, who are entitled to withdraw the interest accruing thereon, and in all other respects remains unaltered.

The amount in deposit is directed to be transmitted to the MACT forthwith.