Gujarat High Court
New India Assurance Co Ltd vs Himatbhai Dhanjibhai Velani & 2 on 2 March, 2017
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/FA/1085/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1085 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE
================================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
================================================================
NEW INDIA ASSURANCE CO LTD....Appellant(s)
Versus
HIMATBHAI DHANJIBHAI VELANI & 2....Defendant(s)
==============================================================================
Appearance:
MS LILU K BHAYA, ADVOCATE for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 2
MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 1 , 3
================================================================
CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 02/03/2017
ORAL JUDGMENT
1. The sole issue which is raised in the present appeal is whether the amount of medical expenses reimbursed under the mediclaim policy is required to be deducted from the actual medical expenses incurred by the claimant while awarding Page 1 of 10 HC-NIC Page 1 of 10 Created On Mon Aug 14 03:43:12 IST 2017 C/FA/1085/2011 JUDGMENT compensation towards the medical expenses in Claim Petition under Section 166 of Motor Vehicles Act, 1988 ("M.V. Act" for short).
2. The above question does not require examination of the facts in detail. Suffice to mention that the respondent No.1 herein met with a vehicular accident on 08.06.2000. He preferred a Claim Petition being MACP No.727 of 2001 in the Motor Accident Claims Tribunal, Gandhinagar against the respondent No.2driver, respondent No.3owner and the appellantInsurance Company of the offending vehicle. The Tribunal by the judgment and award dated 22.12.2010, partly allowed the Claim Petition, and directed the appellant and respondent Nos. 2 and 3 herein to pay a sum of Rs.7,58,800/ with 9% interest to the respondent No.1 as compensation. The amount of compensation included the actual medical expenses of Rs.4,09,254/ though the respondent No.1 was reimbursed medical expenses of Rs.2,20,037/ under the Medi Claim Policy.
3. The appellantInsurance Company, therefore, has preferred this appeal to question its liability of the actual medical expenses incurred by the respondent No.1.
4. I have heard Mr. N.A. Acharya, learned advocate for Ms. Lilu K. Bhaya, learned advocate Page 2 of 10 HC-NIC Page 2 of 10 Created On Mon Aug 14 03:43:12 IST 2017 C/FA/1085/2011 JUDGMENT for the appellant and Mr. Paresh Darji, learned advocate for respondent No.1claimant. There is no representation on behalf of respondent No.3.
5. Mr. Acharya, learned avocate for the appellant vehemently submits that the Tribunal ought to have awarded Rs.1,80,000/ towards the medical expenses being the difference of the actual medical expenses incurred by the claimant and the amount reimbursed under the medi claim policy. In support of this contention, he has relied upon the decision of this Court dated 13/15.11.2014 in F.A. No.4040 of 2017 and cognate Appeals between Oriental Insurance Co. Ltd. v. Nishit Kiritkumar Raval and others. He also relied upon decision of this Court in the case of United India Insurance Co. Ltd. v. Hasumatiben Kanubhai Patel and others, 2015 (2) GLR 1446, wherein, it is laid down that the claim should not be permitted to earn profit out of accident. It is his submission that by awarding the actual medical expenses, the Tribunal has permitted the claimant to earn profit out of an accident which is not the object of the benevolent provisions of Motor Vehicles Act. He, therefore, urges that the appeal may be allowed and Rs.1,80,000/ may be deducted from the medical expenses awarded by the Tribunal under the impugned award.
6. Mr. Darji, learned advocate for the Page 3 of 10 HC-NIC Page 3 of 10 Created On Mon Aug 14 03:43:12 IST 2017 C/FA/1085/2011 JUDGMENT respondent No.1original appellant has supported the impugned judgment and award. He relied upon decision of this Court in the case of Oriental Insurance CO. Ltd. v. Kokilaben WD/O. Arvindbhai Chhaganbhai Dodiya and others, 2015 (3) GLR 2681 and unreported decision of Division Bench of this Court dated 26.06.2012 in First Appeal No.2303 of 2008 between Oriental Insurance Company Ltd. v. Bhakulaben Maheshbhai Shantilal Bhatt and others, and submits that the issue raised in this appeal is put at rest and reimbursement received by the claimant under the Medi Claim Policy cannot be deducted for the purpose of awarding the medical expenses. He, therefore, urges that the appeal may be dismissed.
7. This Court in the case of Nishit Kiritkumar Raval (supra) in paragraph No.23 has held as under: "23. It can thus be seen that in the above noted decisions, the Supreme Court authoritatively laid down that the amounts received by the heirs or dependents of the deceased by way of social security or under a benevolent scheme or a personal insurance policy taken out by the deceased cannot be adjusted from the compensation payable to the claimants. While saying so, a minute distinction was made by providing that in case of personal insurance policy, the claimant himself pays the premium the amount of the maturing policy would be payable to the insured if he is alive and in case of his premature death to his heirs or nominees. Such amount will be payable irrespective of the nature of death, be it accidental or natural. The Court, however, did recognize the principle that the same event cannot lead to compensation being paid twice and the Page 4 of 10 HC-NIC Page 4 of 10 Created On Mon Aug 14 03:43:12 IST 2017 C/FA/1085/2011 JUDGMENT situation would be different if the amount is received under accident claim policy taken out by the employer without any contribution from the employee. In the present case, the insurance policy was of one of accident claims. It was taken out by the employer. The premium thereof was paid by the employer without any deduction from the employees salary. It was on account of the accidental death that the policy got activated under which the family received compensation of more than Rs.20 lacs. All the ingredients of an exception recognized by the Supreme Court in the case of Helen C. Rebello (supra) were present in this case. To reiterate, it was not a simple life insurance policy. It was neither taken by the employee nor the employer deducted the premium from his salary. It was an accident claim policy taken out by the employer directly contributing the premium without any deduction from the salary of the employee. Such amount, therefore, must be accounted for while awarding the compensation to the claimants under the Motor Vehicles Act. The claimants would, therefore, receive an amount of Rs.6,26,700/ (Rs.26,89,000 Rs.20,62,300) from the insurer of the truck and Rs.2 lacs from the insurance company of the Maruti car."
8. This Court in the case of Hasumatiben Kanubhai Patel (supra) in paragraph No.8.2 and 8.3 has held as under: "8.2. In the present case, learned Tribunal has held that the amount payable by the Insurance Company under the Insurance Policy to the claimant is not deductible from the compensation awarded against the tortfeasor on the ground that the said amount has been paid under the separate contract between claimant and her insurer and that tortfeasor cannot take advantage of the claimant contract with third party.
Identical question came to be considered by the Kerala High Court in the case of Mohan and others (supra) and after considering the various decisions on the point the High Court has held that a person who sustained pecuniary damage cannot claim that amount from tortfeasor as well as his insurer. It is held that the insured is entitled to maintain an action against the tortfeasor even if he had received compensation from his insurer. But he cannot appropriate that amount which he had received from the company and he will hold that amount as Page 5 of 10 HC-NIC Page 5 of 10 Created On Mon Aug 14 03:43:12 IST 2017 C/FA/1085/2011 JUDGMENT trustee of the insurer and he is answerable and accountable to the insurance company to that extent. It is further observed and held that there is difference between personal iloss and pecuniary loss.
8.3. Further the claimant should not be permitted to earn profit out of accident which he met. Whatever expenses are incurred, he is entitled to get reimburse but no law provides that he can get reimbursement from two sources resulting in undue enrichment. As observed herein above, if the contention on behalf of the original claimant is accepted, in that case, as observed herein above, owner of the vehicle will get more amount then the actual market value / value of the motor car and to that extent the claimant shall earn profit, which is not permissible. Therefore, on the ground of unjust enrichment and / or double benefit the amount of Rs.4,45,000/ which the owner of the Car received from her Insurance Company towards own damage to the car is required to be deducted, while awarding the compensation towards damage caused to the motor car from the appellant. "
9. This Court on the other hand, in the case of Kokilaben WD/O. Arvindbhai Chhaganbhai Dodiya (supra) in paragraph No. 4.12 has held as under: "4.12 In our view, the said contention should not detain us further since the Tribunal itself has considered one of the decisions of this Court in the case of Satishkumar Rasiklal Doctor Vs. Baldevbhai Chhaganbhai Thakor and Others, reported in (2007) 14 GHJ 263 = 2007 (1) GCD 727 (Gujarat). We may further add that similar contention came to be considered by the Division Bench of this Court wherein, one of us (Jayant Patel, J.) was a party in First Appeal No.2303 of 2008 decided on 26/06/2012 and this Court, in para 11 of the said decision, has observed as under:
11. Learned advocate for the appellant also submitted that the claimant who had already received some amount under the Medi Claim Policy from another insurance company is not entitled to receive any amount towards the medical expenses from the insurer in the present case. We find that the decision of Honble the Supreme Court in case of National Insurance Company Ltd. Versus Sebastian K. Jacob (supra) relied by him is on different facts and cannot be applied to the facts of the present case.Page 6 of 10
HC-NIC Page 6 of 10 Created On Mon Aug 14 03:43:12 IST 2017 C/FA/1085/2011 JUDGMENT In the said case, there were two different insurance companies for two different vehicles involved in the accident and out of those two different insurance companies, the claimant had already received amount of medical expenses from one of the companies which was the insurer of one of the vehicles. In the present case, respondent No.1 has not received any amount of medical expenses either from the insurer of Maruti Van or from the GSRTC prior to the award of medical expenses passed by the Claims Tribunal. What was received by the claimant is the amount under her independent mediclaim policy, therefore, it cannot be said that the claimant is receiving double amount under the same head. In fact, this Court in the case of Revaben, wd/o. Nathubhai Mohanbhai v/s. Kantibhai Narottambhai Gohil reported in 1994 (8) GLR 1728 has settled this issue by holding that the tortfeasor is liable to pay damages for his tortious act and cannot be permitted to take advantage of his own wrong. It is required to be mentioned that for mediclaim policy, separate premium is required to be paid and only then, a person is entitled to claim the amount incurred for medical treatment on the basis of such medi claim policy and, therefore, what is being received under the mediclaim policy is an independent right other than the claim under the Motor Vehicles Act and, therefore, argument advanced by the learned advocate for the appellant is devoid of any merits and stands rejected."
10. Similar view is expressed by the Division Bench of this Court in unreported decision in the case of Bhakulaben Maheshbhai Shantilal Bhatt (supra), wherein in paragraph No.11 has held as under: "11. Learned advocate for the appellant also submitted that the claimant who had already received some amount under the Medi Claim Policy from another insurance company is not entitled to receive any amount towards the medical expenses from the insurer in the present case. We find that the decision of Hon'ble the Supreme Court in case of National Insurance Company Ltd. Versus Sebastian K. Jacob (supra) relied by him is on different facts and cannot be applied to the facts of the present case. In the said case, there were two different insurance companies for two different vehicles involved in the Page 7 of 10 HC-NIC Page 7 of 10 Created On Mon Aug 14 03:43:12 IST 2017 C/FA/1085/2011 JUDGMENT accident and out of those two different insurance companies, the claimant had already received amount of medical expenses from one of the companies which was the insurer of one of the vehicles. In the present case, respondent No.1 has not received any amount of medical expenses either from the insurer of Maruti Van or from the GSRTC prior to the award of medical expenses passed by the Claims Tribunal. What was received by the claimant is the amount under her independent mediclaim policy, therefore, it cannot be said that the claimant is receiving double amount under the same head. In fact, this Court in the case of Revaben, wd/o. Nathubhai Mohanbhai v/s. Kantibhai Narottambhai Gohil reported in 1994 (8) GLR 1728 has settled this issue by holding that the tortfeasor is liable to pay damages for his tortious act and cannot be permitted to take advantage of his own wrong. It is required to be mentioned that for mediclaim policy, separate premium is required to be paid and only then, a person is entitled to claim the amount incurred for medical treatment on the basis of such medi claim policy and, therefore, what is being received under the mediclaim policy is an independent right other than the claim under the Motor Vehicles Act and, therefore, argument advanced by the learned advocate for the appellant is devoid of any merits and stands rejected."
11. The reading of proposition of law expounded by this Court in the aforesaid decisions, makes it manifestly clear that when the claimant receives any compensation amount from any source without his contribution for which he had not made any contribution, the same is required to be deducted from the compensation, but, when he receives any amount from any source for which he had made any contribution then such an amount or reimbursement cannot be deducted. Herein, in the present case, the respondent No.1 had purchased a Medi Claim Policy and had paid the premium for the same i.e. to say his contribution. Therefore, Page 8 of 10 HC-NIC Page 8 of 10 Created On Mon Aug 14 03:43:12 IST 2017 C/FA/1085/2011 JUDGMENT the Insurance Company had reimbursed the medical expenses to certain extent. Even this Court in the case of Hasumatiben Kanubhai Patel (supra) in paragraph No.9 has held as under: "9.. Now, so far as decisions which are relied upon by the learned advocate for the original claimant, which are referred to herein above are concerned, it is required to be noted that as such all the decisions are dealing with damage for personal injury. There is difference between damages of personal injury and pecuniary loss. Damage caused to the motor car is pecuniary loss. So principles laid down in those decisions arising from personal injury claim, which are non pecuniary damages, can have no application to cases for recovery of pecuniary damages."
12. Therefore, in view of the above, I am of the opinion that the medical expenses incurred, as a result of the injury suffered by him in the accident was a nonpecuniary damage. The Tribunal is therefore not committed any error in awarding the reimbursed medical expenses, though, the respondent No.1 has received certain portion of the medical expenses under the Medi Claim Policy.
13. For the foregoing reasons, this appeal fails and is hereby dismissed.
14. Record and Proceedings remitted back to the Tribunal forthwith.
(A.G.URAIZEE,J)
Page 9 of 10
HC-NIC Page 9 of 10 Created On Mon Aug 14 03:43:12 IST 2017
C/FA/1085/2011 JUDGMENT
Manoj
Page 10 of 10
HC-NIC Page 10 of 10 Created On Mon Aug 14 03:43:12 IST 2017