Leave granted.
One Radheyshyam Sharma, the predecessor in interest of the appellants
herein, died in an accident which took place on 22.10.2003. He was an
agriculturist. He was aged 22 years on the date of accident.
The Motor Accident Claims Tribunal believed the evidence adduced on
behalf of the claimants – appellants that the monthly income of the deceased was
Rs. 5000-6000 per month. To that effect two witnesses, namely, PW-1 and PW-2
testified. From the award passed by the learned Tribunal, it appears that the
exhibits throwing a suggestion that the said witnesses were not cross-examined
on the aforementioned statement. The age of the deceased was also not disputed.
In the aforementioned premise the Tribunal awarded a sum of Rs.6,72,880/- to
the claimants, stating:
“16. At the time of death the date of the deceased was 22 years
therefore, for sake of compensation for the dependents this
Court fixes the multiplier as 15 therefore, compensation for the
defendants is determined as 40x15 = 6,00,000/- (Rupees six lacs
only). Rs. 2000/- were spent during the last rites and for
applicant No.1 Mamtabai in view of her age Rs. 10,000/- is
determined for her because of her deprivation from the
comforts of her husband and Rs. 5,000/- to each of applicant
Kanhaiyalal and Sajanbai for their deprivation form the
comforts of their son.
17. Thus the amount spent on the treatment of deceased
Radheyshyam prior to his death by the applicants is
Rs.50,880/-, for dependents compensation Rs. 6,00,000/-, Rs.
2,000/- for last rites and Rs 10,000/- for Mamtabai wife of the
deceased and Rs. 5,000/- for each of the Kanhaiyalal and
Sajanbai for the deprivation of their son.”
The respondent – National Insurance Company preferred an appeal
thereagainst. The High Court opining that there was no evidence, whether oral
or documentary evidence, as produced by the claimants to prove the income of
the deceased, held that the notional income as stipulated in the Second Schedule
appended to the Motor Vehicles Act, i.e. Rs. 15,000/- per annum, should be taken
to be the income of the deceased Radheyshyam Sharma. On that basis, the
amount of compensation towards loss of income was calculated at Rs. 1,70,000/-.
For the said purpose, a multiplier of 17 was applied and 1/3rd of the income was
deducted.
Our attention was drawn to paragraph 8 of the impugned judgment
wherein the High Court proceeded on the basis that no evidence has been
adduced by the respondent that the land was owned by the said Radheyshyam
Sharma.
The High Court, in our opinion, was clearly wrong. As noticed
hereinbefore, in paragraph 7 of its judgment the High Court held that neither
any oral nor documentary evidence was adduced by the claimants to prove the
income of the deceased. Two witnesses testified to the income of the deceased
Radheyshyam. It was in the aforementioned premises obligatory on the part of
the respondent to test the correctness or otherwise of the statement made by the
two witnesses, by cross-examining them. The High Court does not say that
under no circumstances, the income of an agriculturist can be Rs.5000-6000 per
month. Had the said two witnesses been cross-examined, they could have
produced documentary evidence. The respondent, in our opinion, cannot take
advantage of their own wrong.
The High Court, in our opinion, was not correct in arriving at the
conclusion that that no evidence has been adduced by the claimants whatsoever.
In view of Section 59 of the Evidence Act, the term evidence would include oral
evidence. The Tribunal has relied on such oral evidence. It is now a well settled
law, in view of a large number of decisions of the Federal Court as also this
Court, that the Appellate Court shall not disturb the finding of fact arrived at by
the Trial Court on the basis of the evidence as it had the occasion to notice the
demeanour of the witnesses. Unfortunately, the High Court has not adverted to
any of the aforementioned questions. Having regard to the fact that the deceased
was an agriculturist, we are of the opinion that the multiplier of 17 should have
been used.
We, however, agree with the High Court that as some medical bills were
not in the name of the deceased, the medical expenses incurred by the claimants
to the extent of Rs. 50,000/- have not been proved. We, therefore, uphold the
order of the High Court that the claim towards medical expenses should be
confined to Rs. 40,000/-. In that view of the matter, the claimants are held to be
entitled to a sum of Rs. 6,62,880/- towards compensation plus they may also be
entitled to the interest as awarded by the Tribunal.
To the aforementioned extent, this appeal is allowed. No costs.
(S.B. SINHA)