ORIENTAL INSURACE CO. LTD v. CHANDRIKABEN MAHENDRABHAI PATEL AND OTHERS

ORIENTAL INSURACE CO. LTD Versus CHANDRIKABEN MAHENDRABHAI PATEL AND OTHERS ========================================= =Appearance : MR MAULIK J SHELAT for the Appellant MR BHARAT B SHAH for Defendant(s) : 1 - 5. RULE SERVED for Defendant(s) : 6, ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 07/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD)

1. The appellant- The Oriental Insurance Company has filed FA/2142/2006 JUDGMENT this above said appeal against the judgment and decree passed by the Motor Accident Claims Tribunal (Aux.), Ahmedabad City in Motor Accident Claim Petition No.627 of 2001, dated 30.08.2005. This appeal has been filed on the point of quantum. Respondent claimant has also filed appeal because lessor multiplier has been used.

2. Deceased Mahendrabhai Patel was aged about 38 years old and as per the case of the claimants, he was serving in firm M/s. Chokshi Vinaykumar Kantilal and also doing agricultural work, serving in STD PCO and earning handsome income. However, in support of their say, the claimants could not produce any documentary proof about actual income of deceased and even the Tribunal has recorded the finding in para 18 and 19 of its impugned judgment that the source of income are not so reliable, convincing and cogent still it has considered Rs.5,000/- per month as income including prospective income of deceased which is much on higher side. If one can believe the story of claimants then it lead to conclusion that the deceased was serving in said firm, doing agricultural work as well as job in STD PCO, simultaneously which is not possible for human being to do all this job at one point of time. Therefore, it appears that deceased was not having secured source of income and he may be doing some seasonable work with different firm and considering the educational background of deceased (8th Std. pass) and as he was doing alleged job in small town namely, Unjha, considering year of accident, i.e. 2001, his income may not be considered more than Rs.2,000/- per month and it is well settled law that for considering the future prospective income, claimants have to show the evidence which is missing in FA/2142/2006 JUDGMENT present case then as per judgment of the Hon'ble Apex Court in case of Bijoy Kumar Dugar Vs. Bidya Dhar Dutta and others reported in 2006 (3) SCC 242, no prospective income ought to have been considered by the Tribunal.

2.1. The learned Tribunal has applied multiplier of 15, which is on higher side and considering the recent law laid down by Hon'ble Apex Court in following cases, the Tribunal ought not to have applied more than 10 multiplier. In all, the Tribunal has awarded Rs.6,19,200/- under the head of loss of dependency which is much on higher side, even if for time being, considering the annual datum (multiplicand) arrived at by the Tribunal, i.e. Rs.41,280/-, then if the compensation sum is invested in FDR, which fetch average interest at the rate of 9% as awarded by the Tribunal, then total annual interest on such FDR comes to Rs.55,728/-, which is much more than datum figure (multiplicand) considered by the Tribunal. As per the law laid down by the Hon'ble Apex Court in the following cases, a compensation- capital sum should also be consumed- up over the period for which the dependency is expected to last, which capital sum in the present case not consumed-up because of higher interest income received by claimants than multiplicand. The following decisions are relied upon in support of the case:

1. 2005 (6) SCC 236 T.N. State Transport Corporation Ltd. Vs. S. Rajapriya;

2. 2005 (8) SCC 473 Managing Director, TNSTC Ltd. Vs. K.I. Bindu;

3. 2007 (3) SCC 538 New India Assurance Company Ltd. Vs. Kalpna (SMT); FA/2142/2006 JUDGMENT

4. 2007 ACJ 1076 (SC) Managing Director, TNSTC Ltd. Vs. Sripriya;

5. 2008 (2) SCALE 474, The Oriental Insurance Company Ltd. Vs. Jashuben;

6. 2008 (3) SCC 379, A.P.SRTC Vs. M. Ramadevi.

3. What is foremost in this case is that the evidence of the claimant has been accepted by the Tribunal on the question of the income of the deceased. No evidence was led by the appellant Insurance Company before the Tribunal, though it had permission to defend.

4. In this case, there was only evidence of the claimant on oath. There was no rebuttal evidence. When the Tribunal was not faced with any rebuttal evidence then, there was only one evidence of the claimant. An evidence on oath can only be discarded if there is some other evidence. In absence of any other evidence, it can only be discarded if it suffers of patent defects of such improbabilities which are not liable to be reconciled.

5. In the instant case, the claimant has given justifiable reasons for the acceptance of the income of the deceased. It had the advantage of watching the demeanor of the witnesses. There being no rebuttal, the evidence if accepted does not call for interference. No such factor has been indicated which makes the evidence inherently improbable or impossible to believe.

6. As regards the case of the claimants, the appellant suffice it to say that the multiplier applied has sufficient FA/2142/2006 JUDGMENT indication of the thought given by the Tribunal to the factors involved. It cannot be said that wrong multiplier has been applied in the facts relevant for the case. In the background discussed hereinabove, the appeal deserves to be dismissed. Accordingly, we dismiss the appeal with no order as to costs. Record and proceedings be sent back to the Court below immediately. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.)