Delhi High Court
Dr. A.C. Mehra vs Behari Lal And Anr. on 1 November, 1996
Equivalent citations: I(1997)ACC657
JUDGMENT Usha Mehra, J.
1. Appellant Dr. A.C. Mehra was awarded compensation of Rs. 4,500/- along with interest @ 6% per annum by the Motor Accident Claims Tribunal (in short the Tribunal) vide the impugned award dated 22nd November, 1979. Aggrieved appellant preferred this appeal against the impugned award because he felt that compensation allowed was on the lower side. Further the Tribunal wrongly concluded that since the appellant had already received the claim from his Insurance Company for the damage of this car hence he was not entitled to claim any compensation under the Motor Vehicles Act (in short the Act).
2. The case of the appellant is that this plea of double enrichment was not taken by the respondent before the Tribunal. Hence cannot be taken now nor can take advantage of the insurance amount received by the appellant. That payment he received was pursuance to a separate contract entered into With his Insurance Company. Moreover, the Tribunal erroneously ignored the price paid by the appellant for purchase of the spare part at London.
3. These submissions have been contested by the respondent Insurance Company, inter alia, on the grounds that for the repair of this car the amount paid by the appellant to M/s. Saran Motors (P)Ltd., Janpath, stood reimbursed from his Insurance Company. Appellant cannot take double advantage, i.e. the through his insurance company on account of the policy taken out on this car as well as under the Act. Since the appellant already stood reimbursed for the expenses incurred on the repair of his car, therefore, his right to claim compensation stood subrogated. That his Insurance Company alone could file the claim under the Act. The appellant cannot unjustly enrich himself.
4. In order to appreciate the contentions of the parries, brief facts of the case are that on 9th September, 1975 at about 4.15 p.m., the appellant was proceeding in his car No. DLV-4513 towards Janpath. Hardly had he reached RafiMarg that DTC Bus No.DHP-2023 driven by respondent No. 1 came from behind and hit the car of the appellant. Appellant spent around Rs. 8,000/- on repair of his car. Since the car remained in the garage for about 3 weeks, the appellant being a doctor by profession had to go to his clinic in taxi. He was forced to spend a sum of Rs. 2,000/- on taxis. Beside taxi fare he also claimed Rs. 5,000/- for the purchase of car part from London. Thus claimed a sum of Rs. 10,000/- as compensation under the Act. The Tribunal after going through the evidence and the documents placed on record concluded that the negligence in causing this accident was that of respondent No. 1 i.e. driver of the DTC bus. Tribunal also observed that the car after being damaged was sent to M/s. Saran Motors (P) Ltd., for repair. Car remained in that workshop from 16.9.1975 to 6.12.1975. Respondent No. 1 being driver of respondent No. 2 i.e. DTC hence both the respondents were jointly liable. The Tribunal, however, concluded that since the car was comprehensively insured and the repair bill of M/s. Saran Motors amounting to Rs. 2,785/- stood paid by the Insurance Company i.e. National Insurance Company Ltd., hence the appellant was not entitled to receive Rs. 2,785/-. Tribunal concluded that by allowing this amount of Rs. 2,785/-the appellant would get doubly enriched. That is not permissible under the Act. The Tribunal drew distinction of the English authorities cited by the appellant. Tribunal concluded that English Courts were dealing cases of personal injury whereas the case of the appellant pertained to an injury to a car. Hence English decisions were of no help to the appellant.
5. After hearing the Counsel for the parties and perusing the authorities relied by the Counsel, I am of the opinion that the reasoning given by the Tribunal cannot be sustained. The learned Counsel for the appellant has correctly stated that the amount paid by his Insurance Company to M/s. Saran Motors cannot be adjusted or deducted. That was paid under a separate contract entered into by the appellant with a third party. In this regard reference can be made to Chapter 10 of "The Quantum of Damages" by Kemp & Kemp--1986 Edition, where reference has been made to various English decisions holding that completely collateral matters cannot be invoked by a tortfeasor to reduce the damages payable to the victim of his tort. The following passage from para 10-002 which refers to case law can be reproduced for our advantage:
In an action for injuries caused by defendant's negligence a sum received by the plaintiff on an accidental insurance policy cannot be taken into account in reduction of damages". This is the headnote to Bradburn v. Great Western Ry. and in our view correctly summarises the effect of this case. Two passages from the judgments in this case contain the ratio decidendi--Bramwell B. said:
In Dalby v. India and London Life Assurance Company it was decided that one who pays premiums for the purpose of insuring himself, pays on the footing that his right to be compensated when the event insured against happens is an equivalent for the premiums he has paid; it is a quid pro qua, larger if he gets it, on the chance that he will never get it at all. That decision is an authority bearing on the present case, for the principle laid down in it applies, and shows that the plaintiff is entitled to retain the benefit which he has paid for in addition to the damages which he recovers on account of the defendants'negligence.
And Pigott B. said:
The plaintiff is entitled to recover the damages caused to him by the negligence of the defendants and there is no reason or justice in setting off what the plaintiff has entitled himself to under a contract with third persons, by which he has bargained for the payment of a sum of money in the event of an accident happening to him. He does not receive that sum of money because of the accident, but because he has made a contract providing for the contingency; an accident must occur to entitle him to it, but it is not the accident, but his contract; which is the cause of his receiving it.
(Emphasis supplied)
6. The reading of this para clearly establish, that there is no distinctions so far as the law relating to injury is concerned. The point in issue is, whether the amount receiver by the injured on account of his contract with third person can bededucted? The answer is definitely "No". There is no reason of justice in setting off what the appellant being entitled to receive under his contract with his Insurance Company i.e. a third party. He had bargained for the payment of a sum of money in the event of accident happening and his car being damaged. Appellant insured his car with the Insurance Company and bargained for the payment of a sum of money on the clear stipulation that in the event of accident happening to his car he would be reimbursed. He did not receive the amount of Rs. 2,785 /- from his Insurance Com pany because of this accident, but because of the contract entered into by him, with his Insurance " Company. The pre-condition was the happening of an accident. The said Insurance Company on the happening of the accident was to reimburse him for the damage of his car. To my mind, the Tribunal fell in error in presuming that only when the inj ury is to the person and not to the vehicle the setting off rule would apply. What is the legality of such a presumption that setting off would apply to personal injury and not to Vehicle. To my mind, there its no logic ,not any justification for drawing such presumption which the Tribunal did in this case.
7. As already observed above the payment by the Insurance Company to M/ s. Saran Motors was not on account of this accident but on account of the contract entered into by the appellant with the Insurance Company. Therefore, it cannot be said that by claiming damages under the Act because of the rash and negligent driving of the driver of the DTC bus and' damaging the car of the appellant, he would be debarred claiming compensation under the Act, nor claiming such a compensation under the Act would amount to unjust enrichment. In fact the respondents i.e. driver and owner DTC being tortfeasor cannot take this plea nor can take advantage of appellant's contract with third party. In this regard reliance can also be placed on the decisions of an English case in the cases of Payne v. Railway Executives 1951 Vol. I All England Reports 1034 and 1960 Vol. I All England Reports 107.
8. Allahabad High,Court while dealing with almost similar circumstances in the case of Union of India v. Deoria Sugar Mills Ltd. 1980 ACJ 140 concluded that beside the plaintiff having received part of damages from Insurance Company he was also entitled to receive damages from the Railways. In that case it was held that position of the Insurance Company was that of an indemnifier. The railway company which caused damage to the consignee, continues to be primarily liable for the damages sustained by the plaintiff. It, not being a party to the contract of indemnity, cannot be absolved of its liability to pay damages to consignor merely because the consignor had already recovered the money from the Insurance Company under a contract of insurance. These observations of the Allahabad High Court aptly apply on all fours to the facts of this case.
9. Refuting the arguments of Mr. Salwan that once Insurance Company of the appellant paid to M/s. Saran Motors, the right of the appellant stood subrogated, Mr. Dhanda contended that the question of subrogation in this case did not arise. The present case is covered by the provisions of Motor Vehicles Act, hence the doctrine of subrogation does not apply automatically. It will come into operation only when there has been express agreement of transfer of rights. This has been so held by the King's Bench in the case of Nelson (James) & Sons Ltd. v. Nelson Line (Liverpool) Ltd. (1906)2 M.B. 217. Actions, therefore to enforce such rights must be brought in the name of the assured as a rule, any defense which is valid against the assured as, for example, that he has released or compromised his right of action, is available to the defendant in such proceedings. Nothing has been placed on record in this case by the respondent to show that the appellant gave away his right of filing claim under theAct. In fact the Supreme Court in the case of Union of India v. Sri Sarda Mills Ltd. held that subrogation does not confer any independent right on underwriters to maintain in their own name and without reference to the persons assured an action for damage to the thing insured. Supreme Court in that case went to the extent of justifying the filing of the suit by the mill. In that case the mill which was insured against fire and the fire having taken place, lodged a claim for loss and damages. The Insurance Company with which the mill was insured against fire on claim being lodged satisfied the claim of the mill, insurer subrogated to the right of the mill. Suit in that case was filed by the mill against the Railway Administration. Railway Administration took the plea that right of the mill stood subrogated. Negating these contentions the Supreme Court held that such a claim by the mill was not barred. Relying on the above observations of Apex Court it can safely be said that even if there had been a subrogation, which fact has not been proved on record, still one right of the appellant to file a claim under the Act did not get barred.
10. For the reasons stated above I hold that the Tribunal was not justified in deducting the amount of Rs. 2,785/- from the award given by him. The appellant in the present case is entitled to receive this amount. ?
11. So far as the value of the part purchased by the appellant in London which according to him costed him 150 to 200 Pounds and if converted into Indian currency it would come to Rs. 5,000/-.Unfortunately, the appellant did not place any document on record to show the price paid by him for the purchase of this part. He only produced the custom duty receipt proving that he paid custom duty amounting to Rs. 1058.58. This receipt does not indicate the price of the part. The receipt Ex. PW-3/1 gives only the amount of custom duty paid by him. In the absence of any proof of the price actually paid for the purchase of the part by appellant at London, to my mind, the award of the Tribunal cannot be questioned.
For the reasons stated above I modify the award and hold that the appellant would be entitled to another sum of Rs. 2,785 /- which was paid to M/s. Saran Motors Pvt. Ltd. The award after modification would come to Rs. 7,285/- instead of Rs. 4,500/-. With these observations the appeal stands disposed.