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IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION

CIVIL  APPEAL  NOS. 4816-4817   OF 2009 [Arising out of SLP(C) Nos. 19668-19669/2008]

  MAMTA AND ORS. ... APPELLANT(S)

:VERSUS:

  NATIONAL INSURANCE CO. LTD. ... RESPONDENT(S)

O R D E R

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

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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

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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

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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.        

.......................J (S.B. SINHA)

.......................J   (DEEPAK VERMA)    NEW DELHI, JULY 29, 2009.