NEW INDIA ASSURANCE CO LTD Vs. MENUKA DEVI

JUDGEMENT

(1.) IN this appeal, the appellant -insurer is questioning the legality of the judgment dated 31 -3 -2011 passed by the Motor Accident Claims Tribunal, Shillong in MAC Case No. 35 of 2007 awarding a sum of 10,55,000/ - with interest at the rate of 12% per annum to the claimant -respondent by way of compensation for the death of her deceased husband, namely, Raju Shama (Pandey) alias Ananta Sharma in a vehicular accident. On 16 -4 -2007 at about 7.30 AM, while the deceased was waiting on the roadside for a vehicle at 7th Mile near Petrol Pump at National Highway 44 to go to Jowai, he was hit by a Tata Truck bearing No. AS 01 R 9997 driven by one Sahdev Ch. Das having a driving license No. 46173 issued by the DTO, Makokchung. Having sustained serious injuries in the accident, he was shifted to KJP Hospital, Jowai, but he succumbed to his injuries later in the day. The accident was reported to Jowai Police Station, which registered as Jowai P.S. Case No. 44(4)2007 under Section 279/304 IPC against the driver of the truck. The claimant -respondent, who is none other than the wife of the deceased, thereafter filed the claim case before the Motor Accident Tribunal, Shillong impleading the owner of the offending truck and the appellant -insurer as party -respondents. According to the claimant -respondent, her husband was a milkman by occupation and used to earn 12,000/ - per month, and was 28 years old at the time of his death. The deceased is survived by the claimant -respondent, a minor son and the parents of the deceased. The claim petition was not contested by the owner of the offending truck. The appellant -insurer, however, contested the claim petition and filed its written statement and also obtained from the Tribunal permission under Section 170 of the Motor Vehicles Act, 1988 ("the Act") to contest the claim case on any grounds. On the basis of the pleadings of the parties, the following issues were framed by the Tribunal:

(2.) IN the course of trial, five witnesses were examined on behalf of the claimant including herself, but no witness was examined by the appellant -insurer. At the conclusion of the trial, the Tribunal passed the impugned judgment awarding the compensation to the claimantrespondent. In this appeal, no dispute is raised by the appellantinsurer on the factum of the accident resulting in the death of the deceased. It is only about the quantum of compensation. It is contended by Mrs. T. Yangi, the learned counsel for the appellant, that the Tribunal grossly erred in determining the income of the deceased at . 12,000/ - per month when there is no shred of evidence to prove it. She also contends that the Tribunal has wrongly adopted a multiplier of 17, which is on the high side. It is also contended by the learned counsel that the Tribunal exorbitantly awarded interest at the rate of 12% per annum, which is against the permissible limit fixed by the Apex Court. As the impugned judgment suffers from many infirmities, contends the learned counsel, the same is liable to be interfered with by this Court to prevent the claimant -respondent from getting a bonanza or an unjust enrichment. The impugned judgment is, however, supported by Mr. S. Rana, the learned counsel for claimant -respondent, who submits that once there is no dispute about the case of the claimant that the deceased was a milkman, running a dairy farm with six cows, the Tribunal did not commit any illegality in holding that the deceased was earning a sum of 12,000/ - per month as no rebuttal evidence was led by the insurer. He further submits that when the age of the deceased was found to be 28 years, the adoption of a multiplier of 17 by the Tribunal for determination of the quantum of compensation does not need any interference; in fact, the Tribunal ought to have adopted a multiplier of 18 instead of 17 in terms of the structured formula given in the Second Schedule to the Act.

(3.) THERE is no dispute about the age of the deceased. There is also no dispute about the death of the deceased following the vehicular accident caused by the offending truck. In so far as the income of the deceased is concerned, CW 1, who is the wife of the deceased, in her deposition, stated that her husband was running a Dairy farm and used to earn 12,000/ - per month as net profit and that he had around 6 cows which yielded about 60 litres of milk per day. Her statement is fully corroborated by the statement of CW 2, who is the father of the deceased and who lived with him under the same roof. Their crossexaminations by the appellant -insurer did not elicit anything to demolish their statements. Suggestion no denied is no evidence and does not help the cross -examiner. Similarly, CW 3, who was the ocular witness to the vehicular accident, also proved that the deceased was a milkman and used to deliver milk to their pump; in fact, this was revealed by him during his cross -examination. True, there is no documentary evidence, as contended by the learned counsel for the appellant, to substantiate the claim of the claimant that the deceased was earning 12,000/ - per month. But then, when the crossexamination of the CWs did not demolish or falsify their testimonies, it is reasonably safe to conclude that their oral evidence is acceptable and cogent. Once there is no dispute that that the deceased was running a dairy farm with six cows, it does not need much imagination to come to the conclusion that the deceased must have earned 12,000/ - per month as the sale proceeds for selling the milk from his six cows keeping in mind the fact that a litre of milk fetched 20/ - in those days. The appellant does not dispute that the deceased was 28 years old when he died of the vehicular accident. At this stage, I may reproduce hereunder the findings of the Tribunal with regard to assessment of the amount of compensation payable to the claimant -respondent: