Punjab-Haryana High Court
Jaswant Singh vs Lovekesh & Ors on 29 July, 2024
Neutral Citation No:=2024:PHHC:095765
FAO No.532 of 2014 (O&M)
FAO No.2276 of 2014 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Reserved on: 19.07.2024
Pronounced on: 29.07.2024
1. FAO-532-2014 (O&M)
United India Insurance Co. Ltd. .....Appellant
Vs.
Jaswant Singh and others .....Respondents
2. FAO-2276-2014 (O&M)
Jaswant Singh .....Appellant
Vs.
Lovekesh and others .....Respondents
CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA
Present:- Mr. R.K. Bashamboo, Advocate for the Insurance Company.
Mr. G.C. Shahpuri, Advocate for the claimant(s).
DEEPAK GUPTA, J.
In a motor vehicular accident, which took place on 11.02.2011, pe**oner Jaswant Singh son of Rajpal Sharma, sustained injuries on account of rash and negligent driving of tractor No.UP-80AH-8321. Said Jaswant Singh brought pe**on under Sec*on 166 of the Motor Vehicle Act (MVA Pe on No.118 of 2011) before Motor Accident Claims Tribunal, Faridabad. By way of award dated 05.08.2013, he has been awarded a compensa*on of ₹50,000/- and the driver, owner and insurer of the offending vehicle have been held to be jointly and severally liable to pay the said compensa*on amount.
2. It is against the afore-said award that the claimant as well as Insurance Company have approached this Court by way of these separate appeals.
3. The conten*on of the claimant is that no deduc*on should have been made on account of the fact that injured- pe**oner had been compensated for medical expenses under a medi-claim policy. It is also contended that even the compensa*on under the other heads has been awarded by the Tribunal on lower side.
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4. On the other hand, the Insurance Company is aggrieved by the fact that despite no driving licence or route permit etc., having been produced by the driver and owner, the Insurance Company has not been given recovery rights. Learned counsel contends that sufficient evidence was produced before the Tribunal that the driver and owner, who were proceeded ex-parte before the Tribunal, had been served a no*ce to produce the necessary documents & even the legal no*ce was sent to them but s*ll they did not produce the relevant documents. In these circumstances, the Insurance Company deserved to be given the recovery rights.
5. This Court has considered the submissions of both the sides and have appraised the record carefully.
6. The issue of reimbursement of the hospital charges on account of medi-claim policy, was considered at length by this Court in FAO No.4755 of 2016 *tled "ICICI Lombard General Insurance Company Limited Vs. Harminder Singh Rosah and others, and three other connected pe**ons, decided on 17.08.2018. Submissions of both the sides based upon the different views taken by the High Courts, were considered. It will be relevant to reproduce the conten*ons raised and the conclusions drawn by this Court in this regard, which read as under:-
"Learned counsel appearing on behalf of the injured, while relying upon the judgments passed by Hon'ble the Supreme Court in the case of Helen C. Rabello Vs. Maharashtra State Road Transport Corpora on, (1999) 1 SCC 90 and by this Court in the case of Manoj Kumar Yadav Vs. Azad and others, 2015(3) Punjab Law Reporter 211, has submiDed that the amount received by the injured on account of Mediclaim policy purchased by him or her cannot be adjusted, as this would amount to giving the benefit to the wrong doers. The Motor Accident Claims Tribunal has also relied upon the judgments passed by the Gujarat High Court in the case of Gujarat State Road Transport Corpora on Vs. Hargovindas R. Modi and others, AIR 2007 (Gujarat) 39, and by the Kerala High Court in the case of Na onal Insurance Company Limited Vs. Bijumon, 2012(1) RCR (Civil) 325, to take a view that the aforesaid amount reimbursed to the Page No.2 out of 10 pages 2 of 10 ::: Downloaded on - 01-08-2024 00:49:43 ::: Neutral Citation No:=2024:PHHC:095765 FAO No.532 of 2014 (O&M) FAO No.2276 of 2014 (O&M) claimant-injured is not liable to be adjusted while calcula*ng the damages payable.
On the other hand, learned counsel for the Insurance Company while relying upon the judgment of this Court in CWP No.9763 of 2015, decided on 19.09.2016, tled as Na onal Insurance Company Limited Vs. Shashank Bhardwaj and another, reported as 2017(2) PLR 29, contends that such amount reimbursed by the Insurance Company to the claimant-injured, is liable to be adjusted, as the injured-claimant cannot be given double benefit. She also relied upon another judgment passed by this Court in the case of Vishal Vs. Bugga Singh and others, 2016(3) Punjab Law Reporter 51.
Let us first carefully examine the judgment of Hon'ble the Supreme Court in Helen C. Rabello's case (supra).
On careful examina*on of the judgment passed by Hon'ble the Supreme Court, it is apparent that Hon'ble the Supreme Court was dealing with the amount received by the legal heirs under a life insurance policy on the death of the policy holder in an accident. Hon'ble the Supreme Court has held that the life insurance policy is purchased for variety of reasons including investment so as to secure the future by way of forced saving. In India, even insurance policies are purchased for en*tlement of deduc*on towards income tax liability. Life insurance policies are also purchased to secure a loan to cover the risk in the case of untoward incident happening. In para 17 of the judgment, the Court dealt with the reasons why the insurance policy is purchased. ThereaFer in para 29 of the judgment, Hon'ble the Supreme Court dealt with the provisions of Motor Vehicles Act, 1939 and ul*mately concluded that if the pecuniary advantage resul*ng from death is interpreted to mean pecuniary advantage coming under all forms of death then it will even include all the assets moveable, immovable, shares, bank accounts, case and every amount receivable under any contract but such interpreta*on would result in saving a tort-feasor in spite of his wrongful act or negligence which contributes to the death.
In these circumstances, Hon'ble the Supreme Court held that the amount receivable on account of life insurance policy shall not be adjusted towards total compensa*on payable by the Motor Accident Claims Tribunal under the Motor Vehicles Act. Hon'ble the Supreme Court, however in para 33 of this very judgment has noted that the amount which claimant receives on Page No.3 out of 10 pages 3 of 10 ::: Downloaded on - 01-08-2024 00:49:43 ::: Neutral Citation No:=2024:PHHC:095765 FAO No.532 of 2014 (O&M) FAO No.2276 of 2014 (O&M) account of injury or death irrespec*ve of the fact that whether it is on account of an accident or not and otherwise in the event of non-happening of such incidence, no amount was payable/refundable, shall be liable to be adjusted. Para 33 of the judgment is extracted as under:-
"33. Thus, it would not include that which claimant receives on account of other form of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correla on to the accidental death for which compensa on is computed. Any amount received or receivable not only on account of the accidental death but that would have come to the claimant even otherwise, could not be construed to be the "pecuniary advantage", liable for deduc on. However, where the employer insures his employees, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incidence may be an amount liable for deduc on. However, our legislature has taken note of such con ngency, through the proviso of Sec on 95. Under it, the liability of the insurer is excluded in respect of injury or death, arising out of, in the course of employment of an employee "
Further this judgment has been followed by Hon'ble the Supreme Court in the case of United India Insurance Company Limited Vs. Patricia Jean Mahajan (2002) 6 SCC 281, wherein the Court has held while discussing the judgment of Hon'ble the Supreme Court in the case of Helen C. Rabello's case (supra) that idea is to grant the just compensa*on. Idea is not to over compensate the claimant. Para 26 and 36 of the judgment passed by Hon'ble the Supreme Court, specifically deal with the aforesaid issue. Further reference can be made to a recent judgment of Hon'ble the Supreme Court in the case of Reliance General Insurance Company Limited Vs. Shashi Sharma and others (2016) 9 SCC 627. Hon'ble the Supreme Court was dealing with the Rules framed by the State of Haryana to compensate the legal heirs of the employees who loses his life during service. In para 18 of the judgment, Hon'ble the Supreme Court dealt with the aforesaid issue and held that the idea is to award the just compensa*on but compensa*on cannot be treated as a largesse. Para No.18 of the judgment is extracted as under:-
Page No.4 out of 10 pages 4 of 10 ::: Downloaded on - 01-08-2024 00:49:43 ::: Neutral Citation No:=2024:PHHC:095765 FAO No.532 of 2014 (O&M) FAO No.2276 of 2014 (O&M) "18. The principle discernible from the exposi on in Helen C.Rebello case is that if the amount "would be due to the dependents of the deceased even otherwise", the same shall not be deduc ble from the compensa on amount payable under the 1988 Act. At the same me, it must be borne in mind that loss of income is a significant head under which compensa on is claimed in terms of the 1988 Act. The component of quantum of "loss of income", inter alia, can be "pay and wages" which otherwise would have been earned by the deceased employee if he had survived the injury caused to him due to motor accident. If the dependents of the deceased employee, however, were to be compensated by the employer in that behalf, as is predicated by the 2006 Rules- to grant compassionate assistance by way of ex-gra a financial assistance on compassionate grounds to the dependents of the deceased Government employee who dies in harness, it is unfathomable that the dependents can s ll be permi9ed to claim the same amount as a possible or likely loss of income to be suffered by them to maintain a claim for compensa on under the 1988 Act."
There are judgments of various High Courts taking one view or the other, however, in view of binding precedents of Hon'ble the Supreme Court, other judgments passed by the other High Court are not required to be discussed. As regards the judgment of this Court in Manoj Kumar Yadav's case (supra), the same basically relies upon the judgment of Hon'ble the Supreme Court in Helen C. Rabello's case (supra). In para 11 of the judgment aFer placing a reliance, the Court did not further deliberate on the aforesaid issue. In Manoj Kumar Yadav's case (supra), neither the aDen*on of the Court was not drawn to para 33 of the judgment passed in Helen C. Rabello's case (supra) nor to Patricia Jean Mahajan's case (supra).
However, once we examine the judgment passed by this Court in Shashank Bhardwaj's case (supra), this Court aFer taking into considera*on the various judgments passed by the Courts including the judgment of Hon'ble the Supreme Court in Helen C. Rabello's case (supra), held that there is fundamental difference between the life insurance policy and mediclaim policy. The premium in the mediclaim policy is paid once which is for a par*cular period and policy expires by efflux of *me automa*cally and in case no untoward incident happens Page No.5 out of 10 pages 5 of 10 ::: Downloaded on - 01-08-2024 00:49:43 ::: Neutral Citation No:=2024:PHHC:095765 FAO No.532 of 2014 (O&M) FAO No.2276 of 2014 (O&M) during that *me, then amount of premium paid is not refunded, whereas in the life insurance policy, normally the amount is paid for a number of years regularly and thereaFer amount is reimbursed on maturity or otherwise. In case of untoward incident, the injured or legal heirs are paid as per the policy. In these circumstances, the learned Judge took a view that the amount reimbursed to the injured-claimant on account of his or her own mediclaim policy would be liable to be adjusted.
Similarly, in Vishal's case (supra), this Court had also concluded that the amount of mediclaim policy recovered from the insurance company is liable to be adjusted.
The basic purpose of enac*ng the provisions for grant of compensa*on under the Motor Vehicles Act is to compensate the injured or to compensate the legal heirs for the loss which they have suffered on account of accident. However, such compensa*on cannot result in either unjust enrichment or bonanza for the injured or the legal heirs. The claimant cannot be allowed to make a fortune out of a misfortune. The Motor Vehicles Act, does not provide for double payment. As per Sec*on 168 of the Motor Vehicles Act, 1988, Motor Accident Claims Tribunal is to determine the amount of compensa*on which appears to it to be just. Just would obviously mean what is reasonable. The en*re effort of the Court should be to compensate the injured in the case of injury or the legal heirs in the case of death and not to give bonanza to the claimant(s).
In view of the aforesaid discussions, respecLully following the judgments of Hon'ble the Supreme Court and this Court in Shashank Bhardwaj's (supra) and in Vishal's (supra), this Court has come to a conclusion that the amount received as a reimbursement on account of mediclaim policy towards the medical expenses including hospitaliza*on charges, shall be liable to be adjusted while calcula*ng the compensa*on payable on account of medical expenses.
At the most, the claimant(s), can be held en*tled to the premium paid for purchasing the mediclaim policy because that was the amount which was invested by the injured or the deceased, as the case may be, so as to secure."
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7. In the present case, claimant- Jaswant Singh while appearing before the Tribunal as PW4 categorically admiDed during his cross-examina*on that he had taken a medi-claim policy from PPA Rakshak Company and that he has been duly compensated by the said Company on account of the medical expenses incurred in the present case.
8. In view of the afore-said admission made by the claimant and the legal posi*on as explained in Harminder Singh Rosah's case (supra) by this court, which is based on the legal posi*on enunciated by Hon'ble Apex Court in Helen C. Rabello's case (supra), Patricia Jean Mahajan's case (supra); and Shashi Sharma and other's case (supra), it is held that the Tribunal did not commit any error in coming to the conclusion that injured- claimant was not en*tled for compensa*on separately for the medical expenses, as he had already been compensated under the medi-claim policy.
9. Coming to the plea of claimant regarding compensa*on under other heads, it is revealed from the award passed by the Tribunal that an amount of ₹30,000/- has been awarded under the joint head of 'Special Diet, Transporta*on Diet and ADendant Charges', whereas an amount of ₹20,000/- has been awarded under the head of 'Pain and suffering'. By observing that pe**oner did not suffer any loss of salary, as he had been duly paid by his employer during the treatment period, no compensa*on was awarded towards the Loss of Earnings.
10. As far as the compensa*on under the head of Loss of Earnings is concerned, there is categorical admission of claimant- Jaswant Singh, during his cross-examina*on as PW4 that he is geSng full salary ever-since January, 2011. The accident had taken place in February, 2011, which means that pe**oner did not suffer any loss of earnings on account of the accidental injuries and, as such, the Tribunal rightly declined any compensa*on under the said head.
11. Coming to the compensa*on under other heads, though the pe**oner claimed that he remained hospitalized w.e.f. 11.02.2011 to 17.04.2011 Page No.7 out of 10 pages 7 of 10 ::: Downloaded on - 01-08-2024 00:49:43 ::: Neutral Citation No:=2024:PHHC:095765 FAO No.532 of 2014 (O&M) FAO No.2276 of 2014 (O&M) i.e. period of more than two months, however, the said conten*on of the pe**oner is not supported by the evidence on record. Rather, this tes*mony of PW8 - Dr. Abhishek Gautam, Medical Officer, Government Hospital, Ballabhgarh, who proved the medico-legal report would reveal that the pe**oner remained admiDed *ll 17.02.2011 only, i.e. for a total period of six days. The medico-legal report Ex.P8 would reveal that pa*ent i.e. claimant was complaining of pain and inability to move both lower limbs and it was found that it was a case of fractured pelvis factum of which was proved by the statement of PW6 -Dr. Sunil Rana.
12. Although there is no specific evidence about the amount spent either on special diet or transporta*on or aDendant but s*ll compensa*on of ₹30,000/- under these three common heads is quite on the lower side. Since the claimant had suffered a fracture in the pelvis region, so it can be very well assumed that he must have consumed special diet for a considerable period. It can also be assumed that he must have employed some aDendant to take care of him during his hospitaliza*on and even thereaFer, during the treatment period. Even if it be assumed that some or the other family member was taking care of the injured- claimant, that aDendant must have suffered loss of earnings, as he could not join his job. Considering the nature of injuries sustained by the pe**oner, it can also be assumed that he must have spent some reasonable amount on the transporta*on charges. As such, an amount of ₹10,000/- towards Special Diet, ₹10,000/- towards Transporta*on Charges, and ₹20,000/- on account of ADendant Charges are allowed to the pe**oner.
13. As far as Pain and Suffering is concerned, having regard to the nature of injuries suffered by the pe**oner including the fracture in his pelvis and the fact that he must have remained under treatment for a period of more than two months, although remained hospitalized for six days only, pe**oner is required to be compensated adequately. The compensa*on of ₹20,000/- on account of Pain and Suffering is on the lower side. This Court allows compensa*on of ₹60,000/- on account of head of Pain and Suffering. There is no evidence that the pe**oner suffered any disability. As such, total compensa*on Page No.8 out of 10 pages 8 of 10 ::: Downloaded on - 01-08-2024 00:49:43 ::: Neutral Citation No:=2024:PHHC:095765 FAO No.532 of 2014 (O&M) FAO No.2276 of 2014 (O&M) awarded to the pe**oner works out to be ₹1 lakh plus the premium of the medi- claim policy aFer deduc*ng the amount of ₹50,000/- as awarded by the Tribunal.
14. Perusal of the en*re paper book would reveal that there is no evidence whatsoever as to what amount was spent by the pe**oner so as to obtain the medi-claim policy. As such, this Court is unable to award any compensa*on on account of the amount incurred by the pe**oner to obtain the medi-claim policy. As such, it is held that pe**oner is en*tled to addi*onal amount of ₹50,000/- towards compensa*on, apart from the amount of ₹50,000/- as was allowed by the Tribunal.
15. Coming to the conten*on of the Insurance Company regarding grant of recovery rights, learned counsel has rightly drawn aDen*on towards copy of legal no*ce dated 28.11.2012 Ex.R2, which was sent to the driver - Lovekesh as well as owner Lakhan Singh of the offending vehicle so as to produce the driving licence and other relevant documents including route permit, fitness cer*ficate, valid and effec*ve at the *me of accident before MACT, Faridabad, where the claim pe**on was pending. Learned counsel has also drawn aDen*on towards the copy of postal receipts Ex.R3 to Ex.R6 in this regard. Not only this, the Insurance Company also placed on record copy of a leDer dated 18.02.2013, which was sent by one Sanjay Khanna to the Regional Manager of United Insurance Company Ltd., accompanied by the no*ces to the two witnesses, i.e. Lovekesh as well as Lakhan. The no*ce to Lakhan was personally received by him, whereas no*ce to Lovekesh was received by his mother Smt. Kapoori. However, s*ll none of these respondents dared to enter the witness box before the Tribunal. Earlier, they had preferred to be proceeded against ex parte and did not contest the pe**on.
16. In the face of afore-said evidence placed on record by the Insurance Company, it was not jus*fied for the Tribunal not to grant the recovery rights to the Insurance Company.
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17. Since offending vehicle is admiDedly insured with the Insurance Company, therefore, said Company has a statutory liability to pay the compensa*on amount to the claimant. However, as the breach of the terms and condi*ons of the Insurance Policy, which is quite evident from the record, on account of failure of the driver and owner to produce the valid driving licence and other relevant documents, therefore, the Insurance Company deserve to be given the recovery rights. As such, the finding of the Tribunal to that effect is reversed.
18. Consequent to the en*re discussion as above, both these appeals are partly accepted. The claimant- Jaswant Singh is allowed total compensa*on of ₹1 lakh, out of which ₹50,000/- as awarded by the Tribunal shall be deducted; whereas the appeal filed by the Insurance Company is allowed to the effect that it will have the recovery rights against the owner of the offending vehicle.
19. Disposed of accordingly.
A photocopy of this order be placed on the file of connected case.
July 29, 2024 (DEEPAK GUPTA)
renu JUDGE
Whether Speaking/reasoned Yes
Whether Reportable Yes
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