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2024 Supreme(Ker) 1356
IN THE HIGH COURT OF KERALA AT ERNAKULAM
EASWARAN S., J.
Shriram General Insurance Co. Ltd. – Appellant
Versus
Sherly Koshy – Respondent
MACA No. 469 of 2021
Decided on : 23-09-2024
Advocate Appeared:
For the Appellant : John Joseph Vettikad
For the Respondent: A.N.Santhosh
IMPORTANT POINT
Overtime allowances cannot be included in compensation calculations unless consistently received; police charge-sheets serve as prima facie evidence of negligence.
Headnote:
(A) Motor Vehicles Act, 1988 - Section 166 - Compensation for death in motor accident - The Tribunal awarded Rs.43,56,737/- which was modified to Rs.31,29,757/- by this Court after excluding overtime allowances from the income calculation. The court emphasized that overtime allowances should not be included unless consistently drawn. (Paras 19, 11, 12, 18)
(B) Evidence - The court held that a police charge-sheet is prima facie sufficient evidence of negligence in motor accident claims, shifting the burden to the disputing party to provide contrary evidence. (Paras 9, 10)
Facts of the case:
The deceased, N.T. Koshykunju, died in a motor accident caused by an autorickshaw. The claimants sought compensation, which was initially awarded by the Tribunal.
Findings of Court:
The court found that the Tribunal erred in including overtime allowances in the income calculation and modified the compensation accordingly.
Issues: The main issues were the cause of the accident, the calculation of the deceased's income, and the appropriateness of the multiplier used.
Ratio Decidendi: The court ruled that overtime allowances cannot be included in the income for compensation calculations unless consistently received, and emphasized the importance of the charge-sheet as evidence of negligence.
Result: The appeal is partly allowed, modifying the compensation awarded.
JUDGMENT :
This appeal is filed by the Insurance Company questioning the grant of compensation by the Motor Accidents Claims Tribunal-III, Pathanamthitta in OP(MV) No. 233/2014.
2. The facts for disposal of the appeal is as follows:-
One Sri. N.T. Koshykunju died in a motor accident which happened on 18.01.2014, while he was walking through the Kaippattoor-Pandalam public road and when he reached near the place Mampilalil, an autorickshaw bearing Registration No.KL 26 C 796 driven by the 1st respondent in a rash and negligent manner came and hit the deceased and due to the impact of the hit, the deceased sustained severe injuries and succumbed to it on 19.01.2024. The claim was lodged by the legal heirs of the deceased N.T.Koshykunju. The appellant entered appearance and contested the claim and even disputed the cause of the accident and also the vehicle which caused the same. Based on the pleadings on records, the Tribunal frames the following issues:
1. Whether deceased Koshykunju died in the motor accident caused by his own negligence or that of R1?
2. Whether petitioners are the dependents of deceased Koshykunju?
3. Whether petitioners are entitled to get compensation? If any, what is the quantum?
4. Reliefs and costs?
On behalf of the claimants, Exts.A1 to A25 were marked. The 3 rd claimant was examined as PW1. On behalf of the insurance company, the Investigating Officer who investigated the accident was examined as RW1 and the eye witness was examined as RW2.
3. Based on the evidence and materials on record, the Tribunal allowed the claim and awarded the compensation as follows:-
“10. As per Ext.A9 salary certificate salary of December 2013 as Rs.33022/-. Overtime benefit during the year 2013 is Rs.1,15,230 as per Ext.A10. Average monthly overtime benefit can be taken as Rs.9602/-. So total benefit derived from the employer during the year 2013 is Rs. 33022x12=3,96,264/-. Overtime benefit is Rs.9602x12=1,15,230/-. Thus the total income of deceased is Rs.5,11,494/-. 15% increase of the salary as per Praney Sethi’s case comes to Rs.59430/- so the total benefits taken for calculation Rs.5,11,494 + 59,430 = 5,70,924/-. Less income Tax deduction as per Ext.A11= Rs.10,753/-(5,70,924- 10753=5,60,171/-) Less provisional tax as per Ext.A15 Rs.833/- (5,60,171-833=5,59,338) Less 1/3rd deduction personal expenses = 1,86,446/-. Yearly benefits derived to the claimants Rs.372892/-x Multiplier 11= 41,01,812/- (3,72,892x11). Rs.5000/- has been granted towards transport to the hospital and Rs.1000/- has been granted towards extra nourishment. Rs.200/- has been granted towards bystanders expenses. Rs.15000/- has been granted towards funeral expenses. Rs.2000/- has been granted towards damage to clothing and articles, Rs.16725/- (Ext.A7 series) has been granted towards medical expenses. Rs.5000/- has been granted towards transportation charges of dead body, Rs.5000/- has been granted towards pain and sufferings. Rs.40,000/- is granted to the 1 st petitioner for consortium. Rs.50,000/- each (50000x3) = 150000/- is granted towards love and affection to the petitioners. Rs.15,000/- is granted towards loss of estate. Thus I hold that petitioners are entitled to get a total compensation of Rs.43,56,737/- (Rupees Forty Three Lakhs Fifty Six Thousand Seven Hundred and Thirty Seven only) from the respondents with interest at the rate of 9% per annum from the date of filing of the petition ie.18.03.2014 till realization with proportionate costs except for the amount awarded for future prospects of the deceased.”
While awarding the aforesaid compensation, the Tribunal took the income of the deceased as Rs.33,022/- as per Exhibit A9 salary certificate and added the overtime benefit to a tune of Rs.1,15,230/- as per Exhibit A10 certificate and then calculated the average of the same as Rs.9,602/- and thus arrived at the income of the deceased and accordingly calculated the compensation to be awarded. Aggrieved by the calculation of the income and also with reg
