Testimony of witnesses, if reliable and cogent, can be sufficient to prove the victim's income in a motor vehicle accident compensation case.

1. The appellants are the parents of the victim. They are aggrieved by an award of the Motor Accident Claims Tribunal, Paschim Medinipur dated 20th November, 2007. They filed an application in the Claims Tribunal claiming fault liability compensation. The application was filed on 9th June, 2006. The appellants' case was this. The victim, twenty-one and an energetic young man, was killed in an accident happening on 15th March, 2006 due to rash and negligent driving of a Bus No. WB-31-1414, jointly owned by one Siddheswar Ghosal and one Samser All Shah and covered by a valid policy issued by the Insurance Company. He had been carrying on fish business at Belda daily market and used to earn Rs. 5,000 per month. His death entitled them to Rs. 5.3 lakh compensation.

2. The owners of the vehicle filed a joint written statement asserting that at the date of the accident there was in force a policy issued by the Insurance Company in relation to the use of the vehicle. The Insurance Company filed its written statement calling upon the appellants to prove that the victim had been carrying on fish business, and that his monthly income was Rs. 5,000.

3. In proof of the case the first appellant, the victim's father, testified as PW1; and while one Atul Chandra Routh (PW2) testified as an eye-witness to the accident, one Binod Behari Routh (PW3) testified as one of the victim's customers. The appellants exhibited a copy of the FIR (Ex. 1), a copy of the charge-sheet dated 30th September, 2006 (Ex. 2) and three seizure lists (Ex. 3). The Insurance Company cross-examining all the three witnesses, however, did not give any evidence.

4. The Claims Tribunal held as follows:

"The evidence proved that the accident happened as claimed by the appellants; that the victim was killed in the accident; that at the date of death the victim was 22; that the accident happened due to rash and negligent driving of the offending vehicle; and that the vehicle was covered by a valid policy issued by the Insurance Company. The appellants, however, failed to prove that the victim was in any business, or that he was an earning person. Story of PW1's unemployment was not believable. As an able bodied man he was definitely earning. Hence, Rs. 15,000 should be fixed as the victim's notional annual income."

Saying that 1/3rd of the income should be deducted towards the victim's personal expenses, and that the multiplier 17 should be applied, the Claims Tribunal granted to the appellants Rs. 1,70,000 compensation, Rs. 5,000 for pain and sufferings, and Rs. 2,000 for funeral expenses. It directed the Insurance Company to pay after deducting Rs. 50,000 paid under Section 140 of the Motor Vehicles Act, 1988 and to pay 6% p.a. interest, if the payment was not made within the time granted.

5. Mr. Roy appearing for the appellants has submitted that evidence given by the appellants proved their case in the application for compensation that from his regular fish business the victim used to earn Rs. 5,000 per month.

6. Mr. Kundu appearing for the Insurance Company has submitted that in view of the principle stated in Syed Basheer Ahamed and Others Vs. Mohd. Jameel and Another, (2009) 2 SCC 225, the onus to prove the victim's income was on the appellants whose mere assertion in the application for compensation was not sufficient to discharge the onus; and that the appellants failed to prove that the victim was an earning person.

7. Mr. Kundu's further submission is that in view of Shri Ravinder Kumar Sharma Vs. The State of Assam and Others, (1999) 7 SCC 434, even without filing any appeal against the award or cross-objection, the Insurance Company is entitled to assail the award as to deduction and choice of multiplier, because the victim was a bachelor and hence 50%, not 1/3rd, ought to have been deducted, and the multiplier ought to have been chosen on the basis of the victim's mother's age.

8. The only issue involved in the appeal is whether the Claims Tribunal was justified