Gujarat High Court
National Insurance Company vs Sureshbhai Jagjivanbhai Dave on 11 March, 2022
C/FA/2751/2008 JUDGMENT DATED: 11/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2751 of 2008
With
R/CROSS OBJECTION NO. 9 of 2009
In
FIRST APPEAL NO. 2751 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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NATIONAL INSURANCE COMPANY
Versus
SURESHBHAI JAGJIVANBHAI DAVE & 1 other(s)
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Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
MR P J YAGNIK(1004) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 11/03/2022
ORAL JUDGMENT
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C/FA/2751/2008 JUDGMENT DATED: 11/03/2022
1. This first appeal and cross objection are filed under Section 173 of the Motor Vehicles Act, 1988 ("the Act" for short) challenging the judgement and award dated 30.11.2007 passed by Motor Accident Claims Tribunal (Aux.), Court No.14, Ahmedabad in MACP No1472 of 1998.
2. First Appeal No.2751 of 2008 arises out of Claim Petition No. 1472 of 1998 and is filed by the Insurance Company, challenging the quantum of compensation awarded with a prayer to restrict the claim to Rs.3,08,900/- . It is case of the Insurance Company that the order of the Tribunal is erroneous on two grounds. Firstly, for the amount of Rs.1,70,000/- awarded towards medical bills because the said amount had been reimbursed through the Medi-Claim policy. Secondly, the claimant is not entitled for compensation under the head "actual economic loss" of Rs.1,38,910/- once the future loss of income has been awarded to him. He thus submitted to reduce the amount of compensation to the extent of Rs.3,08,910/- (Rs.6,67,294 - [Rs.1,70,000+ Rs.1,38,910] ). As against that, the Cross Objection No.9 of 2009 is filed by the original claimant seeking enhancement of compensation awarded by the Tribunal.
3. As both, the First Appeal No.2751 of 2008 and Cross Objection No.9 of 2008 arises out of same claim petition and are decided by common judgement and award dated Page 2 of 13 Downloaded on : Sat Dec 24 12:39:00 IST 2022 C/FA/2751/2008 JUDGMENT DATED: 11/03/2022 30.11.2008, they are heard and decided together.
4. Facts are that the original claimant was an employee of Bank. On 14.09.1998, he went to RTO for some work during recess hours and while returning to his Bank on his scooter bearing registration No.GJ-LL-6912; he met with an accident. It is his case that while he was driving his scooter at moderate speed, following traffic rules, at that time one car bearing registration No.GJ-1-X-2849 dashed with his scooter. The car was driven in a rash and negligent manner because of which the accident took place and the claimant sustained serious injuries all over the body. It is case of the claimant that the accident took place on account of sole negligence on part of the driver of the car. For the injuries sustained, he was admitted to the hospital and underwent surgeries. For the said accident, he filed Claim Petition before the Tribunal under Section 166 of the Act seeking compensation of Rs.8,00,000/-. The Tribunal decided the issue as under.
4.1. The Tribunal held the driver of the car as sole negligent for occurrence of the accident. For compensation, the Tribunal awarded total compensation of Rs.6,67,294/- under different heads as stated in the judgement and award dated 30.11.2007.
5. Against the said decision, the present appeal and cross objection are filed by the respective parties.
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6. I have heard learned advocate Mr. Dakshesh Mehta for the Insurance Company and learned advocate Mr. P.J.Yagnik for original claimant. As liability has not been denied, presence of other respondents is not necessary.
7. Appearing for the Insurance Company, learned advocate Mr. Dakshesh Mehta contended that the Tribunal is in error in allowing claim for medical bills aggregating to Rs.1,70,000/- as the same has been paid through the policy of Medi-claim. He further contended that the Tribunal ought not to have allowed Rs.1,70,000/- towards Medical expenses incurred by the claimant as the same has been reimbursed under Medi-claim policy. The xerox copy of Medi-claim policy on record refers to the payment covering medical bills. He contended that it amounts to reimbursement twice over of the same claim. He further contended that the Tribunal is also in error in awarding Rs.1,38,910/- under the head "actual economic loss"
particularly, when "Future Economic Loss" has been allowed. He therefore contended to reduce the amount awarded under the head medical bills as also actual economic loss totalling to Rs.3,08,910/-. In other words he requested to reduce the quantum of compensation awarded to the claimant to the extent of Rs. 3,08,910/-
8. On the other hand, learned advocate Mr. P.J.Yagnik, appearing for the original claimant contended that the Tribunal Page 4 of 13 Downloaded on : Sat Dec 24 12:39:00 IST 2022 C/FA/2751/2008 JUDGMENT DATED: 11/03/2022 is in error in awarding the total compensation of Rs.6,67,294/- only. Though the permanent partial dis-ability was certified by the doctor to the extent of 45%, the Tribunal reduced it to 40% which is not correct. He further contended that because of the permanent partial dis-ability sustained, he was compelled to resign before the actual date of his superannuation and, therefore he is entitled for the actual loss of income. He further contended that the compensation under the head pain, shock and sufferings is also not appropriately considered by the Tribunal. To buttress his arguments, he relied upon the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and Ors. vs. Delhi Transport Corporation and Anr. reported in (2009) 6 SCC 121 and National Insurance Company Limited vs. Pranay Sethi & Ors. reported on (2017) 16 SCC 680. He thus contended to enhance the quantum of compensation and submitted to allow the cross objection as prayed for.
9. No other and further submissions/contentions are made by learned advocates appearing for the parties in this appeal.
10. I have considered the submissions made by the respective parties and also the evidence on record. I have also gone through the record and proceedings. Having re-appreciated the evidence, it is true that the claimant had Medi-Claim policy which is exhibited as Exhibit-36. The said policy refers to the Page 5 of 13 Downloaded on : Sat Dec 24 12:39:00 IST 2022 C/FA/2751/2008 JUDGMENT DATED: 11/03/2022 premium paid towards Hospitalisation and Domicillary Hospitalisation Insurance. In context thereto, it would be relevant to reproduce certain paragraphs from a decision of this Court in the case of Oriental Insurance Co. Ltd. v. Kokilaben Wd/O. Arvindbhai Chhaganbhai Dodiya & Ors. reported in 2015 (3) Vol. 56 GLR 2681, wherein this Court under paragraphs 4.11, 4.12 and 4.13 has held as under:
"4.11.Mr.Nair, learned counsel for the appellant, did contend that the medical expenses of Rs.2,04,305/-, which were already reimbursed in the medi claim policy to the claimants, ought not to have been considered by the Tribunal for the purpose of awarding compensation.
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 Page 6 of 13 Downloaded on : Sat Dec 24 12:39:00 IST 2022 C/FA/2751/2008 JUDGMENT DATED: 11/03/2022 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 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 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 Page 7 of 13 Downloaded on : Sat Dec 24 12:39:00 IST 2022 C/FA/2751/2008 JUDGMENT DATED: 11/03/2022 the claimant is the amount under her independent medi-claim 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 tort-feasor 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 medi-claim 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 medi-claim 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."
4.13 Under the circumstances, the contention raised by Mr. Nair cannot be accepted.
Resultantly, the original claimants would be entitled to the total amount of Rs.2,98,205/-
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charges as already awarded by the Tribunal."
11. Moreover, this court in the case of New India Assurance Co. Ltd., vs. Himatbhai Dhanjibhai Velani in First Appeal No. 1085 of 2011, this Court held that when the claimant received any compensation amount from any source, for which, he had not made any contribution, the same is required to be deducted from the compensation. But when he received any amount from any source, for which, he made any contribution then the amount or reimbursement cannot be deducted. In the present case, the claimant had purchased a medi-claim policy and had paid the premium for the same i.e. his contribution. For the said medi-claim policy the Insurance Company had reimbursed the medical expenses. The Court has further held that:
"for medi-claim 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 medi-claim policy is an independent right other than the claim under the Motor Vehicles Act".
Thus, in my opinion the medical expenses incurred as a result of the injury suffered by him being non-pecuniary Page 9 of 13 Downloaded on : Sat Dec 24 12:39:00 IST 2022 C/FA/2751/2008 JUDGMENT DATED: 11/03/2022 damage, there is no error committed by the Tribunal in awarding the reimbursed of medical expenses and therefore, the same are not required to be deducted. Therefore, I am not in agreement with the contention of Learned Advocate Mr. Mehta that the amount of medical expenses are to be deducted from the compensation awarded. In my opinion the Medi-Claim being a separate Insurance contract between the claimant and the Insurance company, the amount paid towards the policy is not required to be deducted from the claim which arises out of tortious act. Therefore, there is no error by the Tribunal as contended and the claim allowed towards Medical Expenses of Rs.1,70,000/- is not to be deducted from the total compensation awarded.
12. Further, the salary certificate at Exhibit- 43 shows monthly salary of claimant at Rs.13,891/-. Admittedly on account of the injuries sustained, the claimant remained on leave for 10 months. The certificate of Bank of Saurashtra at Exh.35 refers that the leave of claimant from 14.9.1988 to 5.7.1999. This shows the actual loss of income to the claimant. On the contrary, it is also on record that on account of dis-ability sustained he was compelled to take voluntary retirement prior to his date of superannuation. Therefore, in my opinion the Tribunal has correctly awarded Rs.1,38,910/- towards actual economic loss along with future loss of income. Therefore, the contention of the appellant-
Page 10 of 13 Downloaded on : Sat Dec 24 12:39:00 IST 2022C/FA/2751/2008 JUDGMENT DATED: 11/03/2022 Insurance Company that since the claimant was allowed future economic loss of Rs.3,33,384/-, he is not entitled for the actual economic loss also does not merit acceptance. Thus, I am not in agreement with the contention of appellant-Insurance Company that the claimant is not entitled for actual economic loss.
13. Now upon consideration of the submissions of the Learned Counsel for the claimant, I am of the opinion that the Tribunal has correctly assessed the dis-ability at 40% instead of 45% . By referring to the cross-examination of Dr. Vijay Sheth the Tribunal has observed that there is possibility of 1 to 5% marginal error which is permissible and, therefore, based on the cross-examination of Dr. Vijay Sheth, the partial permanent dis-ability was correctly assessed at 40%. Applying decision of Hon'ble Supreme Court in the case of Sarla Verma (Smt) and Ors. (supra) as the claimant was 56 years of age at the time of accident, he would be entitled to 10% future loss of income and multiplier of 9 would be applicable.
"Rs.13,891 (p.m.) x 40% (dis-ability) = Rs.5,556 x 12 (p.a.) = Rs.66,672 + Rs.6,667 (10% (future loss of income)= Rs.73,339/- x 9 (multiplier) = Rs.6,60,051/-"
14. Considering the period of hospitalisation, the number of surgeries and the period of treatment undergone, in my Page 11 of 13 Downloaded on : Sat Dec 24 12:39:00 IST 2022 C/FA/2751/2008 JUDGMENT DATED: 11/03/2022 opinion Rs.50,000/-would be appropriate towards pain, shock and sufferings. As the claimant sustained injuries which resulted into permanent partial dis-ability to the extent of 40%, Rs.60,000/- would be appropriate towards loss of amenities. Therefore, the amount of compensation works out as under:
Future Loss of Income Rs.6,60,051/-
Pain, Shock and Sufferings Rs.50,000/-
Loss of Amenities Rs.60,000/-
Actual Economic Loss Rs.1,38,910/-
Medical Expenses Rs.1,70,000/-
Total Rs.10,78,961/-
15. Thus, the respondent (original claimant) would be entitled to total compensation of Rs.10,78,961/-. As the Tribunal has awarded an amount of Rs.6,67,294/-, the appellant - Insurance Company shall deposit the balance additional amount of compensation of (Rs. 10,78,961 - Rs.6,67,294) = Rs.4,11,667/- with 6% interest p.a. and proportionate costs from the date of filing of the claim petition till its realization with the Tribunal within a period of 8 weeks from the receipt of the order. Appeal of the Insurance Company is thus dismissed and the Cross Objection of the original claimant is partly allowed and the judgment and award dated 30.11.2007 is modified to the aforesaid extent. The rest of the judgment and award passed by the learned Tribunal remains unaltered. Registry is directed Page 12 of 13 Downloaded on : Sat Dec 24 12:39:00 IST 2022 C/FA/2751/2008 JUDGMENT DATED: 11/03/2022 to transmit back the Record and Proceedings of the case to the concerned Tribunal forthwith. However, there shall be no order as to costs.
(MAUNA M. BHATT,J) NAIR SMITA V. Page 13 of 13 Downloaded on : Sat Dec 24 12:39:00 IST 2022