FA/2141/2006 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2141 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = ORIENTAL INSURACE CO. LTD Versus DIPABEN VINAYKUMAR CHOKSHI (HEIR OF DECD. VINAYKUMAR K.) 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 and 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/2141/2006 2/5 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.628 of 2001, dated 30.08.2005. This appeal has been filed on the point of quantum. Respondent appellant has also filed appeal because lessor multiplier has been used. 2. The following are submissions in support of the appeal: 2.1. Deceased Vijaykumar Kantilal Chokshi was aged about 32 years old doing business at shop situated at Agricultural Produce Market Committee's (A.P.M.C.), Unjha and as per the evidence- certificate of A.P.M.C. and local tax receipts, it appears that the said shop was in joint name of deceased as well as his younger brother namely Biren and as per deposition and cross-examination of claimant No.4- Kantilal Chokshi- father of deceased (Exh.38), said business was started with investment made by deceased as well as his younger son- Biren in equal share, i.e. 50% each and to avoid technicalities in Sales Tax & Income Tax, deceased as well as his younger brother's name was mentioned in Exhibits 48 to 53- local tax receipts. Therefore, considering these evidence as a whole, though income tax return was filed by deceased being proprietor of M/s. Chokshi Vinaykumar Kantilal but profit/income of said firm was shared between two brothers, so the Tribunal has totally overlooked this aspect of matter and considered the income shown in I.T. returns as if income of deceased alone. It appears from the evidence that the deceased undergraduate. As per the evidence of claimant No.4-father, it further appears that after death of deceased, FA/2141/2006 3/5 JUDGMENT his younger brother has continued the business at said shop and widow-claimant No.1 was given the share of her husband out of the said business, if it be so then such amount may be required to be deducted from overall compensation. 2.2. The Tribunal has considered the income of deceased on higher side and when the Tribunal in its impugned judgment at para 12 has recorded that income of deceased was increasing as well as decreasing as in business, there are ups and down then it ought to have considered the average income of last three years of deceased while computing compensation that too after deducting 50% share of his younger brother from profit of the said firm. 2.3. The Tribunal has applied multiplier of 16 which is on higher side and considering the recent law laid down by Hon'ble Apex Court in the following cases, the learned Tribunal ought not to have applied more than 13 multiplier. In all, the Tribunal has awarded Rs.16,10,672/- under the head of loss of dependency which is much on higher side, even if for time being considering the annual datum figure (multiplicand) arrived at by the Tribunal, i.e. Rs.1,00,667/-, then if the compensation amount 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.1,44,960/-, which is much more than datum figure 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 FA/2141/2006 4/5 JUDGMENT 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); 4. 2007 ACJ 1076 (SC) Managing Director, TNSTC Ltd. Vs. Sripriya; 5. 2008 (2) SCALE 474, The Oriental Insurance Company Ltd. Vs. Jashuben. 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 FA/2141/2006 5/5 JUDGMENT 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 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.) omkar