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FA/2141/2006 3/ 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 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, 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 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 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
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