Karnataka High Court
The Oriental Insurance Co Ltd vs Sri S Hanumanthappa on 26 November, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:48448
MFA No. 9508 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 26TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 9508 OF 2013 (MV)
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE: LEO SHOPPING COMPLEX,
RESIDENCY ROAD, BANGALORE - 560 025,
BY ITS DULY CONSTITUTED ATTORNEY.
...APPELLANT
(BY SRI. RAVISHANKAR C.R, ADVOCATE)
AND:
1. SRI. S. HANUMANTHAPPA,
AGED ABOUT 61 YEARS,
S/O SRI. SANJEEVAPPA,
R/O NO.3, DOOR NO. 907,
"MALLESWARA NILAYA", 5TH 'A' CROSS,
Digitally signed by CHAMUNDESHWARI LAYOUT,
RAMYA D
Location: HIGH MARATHAHALLI, BANGALORE - 560 037.
COURT OF
KARNATAKA SINCE DEAD BY HIS LRS.
1(A). SMT. S. RATHNAMMA,
W/O LATE S. HANUMANTHAPPA,
AGED ABOUT 63 YEARS,
1(B). SRI. H. KIRAN KUMAR,
S/O LATE S. HANUMANTHAPPA,
AGED ABOUT 41 YEARS,
BOTH ARE RESIDING AT NO. 3/347,
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NC: 2024:KHC:48448
MFA No. 9508 of 2013
KODIGENAHALLLI, VIDYANAGARA,
ANANTHAPURA, ANDHRA PRADESH - 515 212.
1(C). SMT. H. MAMATHA,
W/O SRI. YATHISH M,
D/O LATE HANUMANTHAPPA,
AGED ABOUT 39 YEARS,
RESIDING AT NO.3285/48,
5TH CROSS, C-BLOCK,
NEAR VIVEKANANDA LAW COLLEGE,
GAYATHRINAGAR, BENGALURU - 560 021.
1(D). SMT. H. NALINI NARESH,
W/O SRI. A. NARESH BABU,
D/O LATE S. HANUMANTHAPPA,
AGED ABOUT 37 YEARS,
R/AT NO. 28-10-1/1,
SINGIREDDY PALLI, HINDUPUR,
ANANTHAPURA, ANDHRA PRADESH - 515 201.
2. SMT. G. ANUSUYAMMA
W/O SRI. NARAYANA SHETTY,
R/O SHETTIPALLI VILLAGE,
PENGONDA MANDAL,
ANATHAPUR DISTRICT,
ANDHRA PRADESH.
...RESPONDENTS
(BY SRI. THYAGARAJA S, ADVOCATE FOR R1 (A TO D);
R2 - NOTICE SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 22.03.2013 PASSED IN MVC
NO.3314/2009 ON THE FILE OF THE XI ADDITIONAL JUDGE,
MACT, COURT OF SMALL CAUSES, BANGALORE, AWARDING
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NC: 2024:KHC:48448
MFA No. 9508 of 2013
COMPENSATION OF Rs.6,73,839/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL REALIZATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
This appeal is filed under Section-173(1), of the Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act' for brevity) by the appellant/insurance company, challenging the judgment and award dated 22.03.2013, passed in MVC No.3314/2009, on the file of Special XI Additional Judge and MACT, at Bangalore (SCCH-12) (hereinafter referred to as 'the Tribunal' for brevity).
2. The accident occurred, the injuries sustained and the liability of the insurance company are not in dispute.
3. The question to be considered in this appeal is whether once the claimant has got reimbursement of the medical expenses under the Mediclaim Policy, can be awarded once again under the medical expenses and hospitalisation charges, while determining compensation under the MV Act. -4-
NC: 2024:KHC:48448 MFA No. 9508 of 2013
4. In the present case, the Tribunal has awarded compensation under various heads as follows:
Sl. Amount in Rs.
No.
1 Pain and suffering 50,000-00
2 Loss of income during treatment period 16,000-00
3 Medical expenses 5,24,639-00
4 Loss of future earning 43,200-00
5 Loss of amenities 10,000-00
6 Attendant charges, conveyance, 10,000-00
nourishment and diet etc.
7 Future medication 20,000-00
Total 6,73,839-00
5. The Tribunal, under the medical expenses, has granted compensation of Rs.5,24,639/-. According to the learned counsel for the appellant/insurance company, it is amounting to granting compensation twice on the head medical expenses, on the ground that the claimant has got reimbursement of the medical expenses under the Mediclaim Policy. Therefore, it is submitted that once the claimant has got reimbursement of medical expenses, then under the provisions of the MV Act, while determining compensation, the amount under the head medical expenses once again cannot be granted. Therefore, questioned grant of compensation under the medical expenses.
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6. He places reliance on the division bench judgment of this Court in MFA.No.6950/2007 c/w MFA.Nos.6952/2007 and MFA.No.15422/2007, dated 11.10.2012 in the case between The New India Assurance Co. Ltd., vs. Manish Gupta and another (Manish Gupta case).
7. On the other hand, the learned counsel for the respondents/claimants submits that the medical reimbursement amount is by virtue of contract of insurance between the claimant and the insurance company in that medical claim; therefore, the claimant is statutorily entitled for compensation while determining the same under the provisions of MV Act. Therefore, it is submitted that it does not amount to double claim in respect of medical expenditure. In support of his arguments, he has placed reliance on the judgment of the High Court judicature at Bombay in First Appeal.No.1051/2022, dated 12.04.2023 in the case between Reliance General Insurance Co. Ltd., v. Mr.Aman Sanjay Tak (Aman Sanjay Tak case) and another and the interim order of the Hon'ble Supreme Court in SLP.No.28706/2023, dated 07.08.2023. -6-
NC: 2024:KHC:48448 MFA No. 9508 of 2013
8. In the present case, the only ground urged by the learned counsel for the appellant/insurance company is that the award of amount of Rs.5,24,639/- under medical expenses is not correct, since the claimant has got reimbursement of the medical expenses under the Mediclaim policy. Therefore, prays to set aside the said compensation amount.
9. The facts as set out in the Bombay High Court judgment in Aman Sanjay Tak's case referred to supra, it was urged that the father of the claimant had taken an insurance policy by paying separate premium for the whole family. Under these circumstances, the single bench of the Bombay High Court held that the amount granted under the medical expenses cannot be deducted, from the amount which the appellants are liable to pay as compensation. This order was challenged before the Hon'ble Supreme Court in SLP.No.28706/2023 referred to supra, and the Hon'ble Supreme Court has passed an interim order directing the insurance company to deposit the amount of medical bill before the Motor Accident Claims Tribunal and its disbursement is stayed. It is the only interim order passed by the Hon'ble Supreme Court.
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NC: 2024:KHC:48448 MFA No. 9508 of 2013
10. The division bench of this Court in Manish Gupta's case referred to supra, by considering the judgment of the Hon'ble Supreme Court, the full bench decision of the Madhya Pradesh High Court, and the judgment of the Privy Counsel and House of Lords, and making distinquishment on the head of amount to be granted, the premium paid towards life insurance coverage, provident fund, family pension and gratuity and what are the heads of compensation awarded under the pecuniary damages and non-pecuniary damages, has held that if the claimant has got reimbursement of amount under the medical expenses and hospitalisation charges that can be deducted while determining and awarding compensation under the provisions of the MV Act.
11. The award of compensation to be granted under the medical expenses and hospitalisation charges is being within the category of pecuniary advantage, while determining the compensation. At paragraph No.18, the division bench of this Court in the Manish Gupta's case observed as under:
18. The tests to be applied for determining the pecuniary advantage' which has to be deducted from the amount of compensation in a case of death are:-8-
NC: 2024:KHC:48448 MFA No. 9508 of 2013 (1) Onus is on the insurer to establish that some pecuniary benefit or reasonable expectation of pecuniary benefit to the claimants, is resulting from the death of the deceased.
(2) Damages to be awarded to the claimants are compensatory and not punitive. Therefore, the test that no advantage should accrue to the wrong-doer would not be applicable.
(3) Where death has merely accelerated the receipt of benefits, which the claimants would have, in any case, received at some future date in such cases pecuniary benefits come to the claimants not by reason of the death. The pecuniary advantage received by the claimants is the advantage gained by acceleration of their interest.
(4) Benefits received from the employer, in some cases may be held to come to the claimants by reason of death.
But, if the benefits are shown to have been received. merely out of consideraton for these claimants, e.g., contributions by CO- workers to relieve the needs of the claimants, then such, benefits cannot be held to have been received merely by reason of death of the deceased. (5) Lastly, if there is any doubt as to whether the balancing principle extends to any class of berejſit not covered by any binding authority, the doubt has to be resolved in favour of the claimants inasmuch os in such a case the defendant must be held to have failed to discharge the burden placed on him to justify such deduction.
12. On the touchstone of the above principles for determining pecuniary advantage while granting compensation, it is further held at para Nos.22 and 23 as follows:
22. In the case on hand, the facts are almost similar. It is not in dispute that in all the claim petitions, the claimants had taken the Mediclaim policies and they have claimed the amount under the policy. We are of the view that the question of the claimants claiming compensation in the -9- NC: 2024:KHC:48448 MFA No. 9508 of 2013 claim petitions, which is filed under the Act for the amount expended by them for the treatment, certainly cannot be granted. The medical expenses as observed, is classified as a pecuniary loss. Pecuniary loss in its context means that the actual amount, which is expended by the claimant for treatment. If the said amount has been paid by the insurer under the Mediclaim policy, the question of the claimant claiming the very same amount for the very same purpose, which is inclusive of the expenses, which are incurred by him for hospitilization and for his treatment does not arise. Undoubtedly, if the amount, which is received by the claimant under the Mediclaim policy falis short of the actual expenses expended by him, it is always open for him to claim the difference of amount spent from the Tribunal. But however, he cannot claim compensation under both the Mediclaim policy as well as the claim petition filed under the Act.
The decision of the Apex Court in Hellen C. Rebello's case was in respect of the Life Insurance Policy and not in respect of a Mediclaim policy and therefore the said decision is distinguishable.
23. Having said so, we are of the view that the amount received by the claimant under the Mediclaim policy is required to be deducted from the total compensation awardable to the claimants under the head medical expenses. Indeed we hasten to add, if the claimant has not received any amount under the Mediclaim policy, the Tribunal is required to assess the amount expended by the claimant for the medical expenses and suitably award with reference to the bills produced by them. We also observe that if the amount awarded under the Mediclaim policy is much less than the actual amount expended by the claimant towards medical expenses, the shortfall or the balance is also required to be made good by the tort- feasor. Therefore the determination of compensation on the head of medical expenses would in any case have to be made by the Tribunal. In other words, if the amount received under a Mediclaim policy is less than what has been determined by the Tribunal, the former would have to be deducted from the latter. On the other hand, if the amount received under the Mediclaim policy is higher than what is determined by the Tribunal, then no compensation under the head of medical expenses can be
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NC: 2024:KHC:48448 MFA No. 9508 of 2013 awarded by the Tribunal. We hasten to add that any compensation received by the injured claimant on account of an accident policy carnet be deducted from the compensation deterinined by the Tribunal. Also the determination of compensation on incidental charges is independent of the determination towards medical expenses and has to be paid by the tortfeasor without any reference to a Mediclaim policy that may be obtained by the claimant.
13. Therefore, it is the dictum laid down by the division bench of this Court that the amount received by the claimant under the Mediclaim policy is required to be deducted from the total compensation awardable to the claimants under the head medical expenses and hospitalisation charges under M.V.Act. Therefore, in the present case, what is the amount received by the claimant under the Mediclaim insurance policy, is liable to be deducted from the medical expenses, while determining the compensation under the said head. Coming to the present case, the Tribunal has awarded compensation of Rs.5,24,639/- under the head medical expenses. The appellant has filed an application under Order 41 Rule 27 of the CPC by producing additional evidence that the claimant has received Mediclaim reimbursement amount of Rs.1,80,000/- from TTK Healthcare TPA Private Limited. This factum and document placed as additional evidence by the appellant is not disputed by the
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NC: 2024:KHC:48448 MFA No. 9508 of 2013 respondents/claimants. Hence, the said additional evidence is allowed. Therefore, it is proved that the respondents/claimants have received an amount of Rs.1,80,000/- under the Mediclaim policy, which is to be deducted from the total amount of compensation under the head medical expenses. Therefore, the amount of Rs.1,80,000/- is deducted from amount of Rs.5,24,639/- then it would be Rs.3,44,639/- (Rs.5,24,639- Rs.1,80,000). Therefore, to this extent, the appeal filed by the insurance company is liable to be allowed. Therefore, when the total amount is Rs.6,73,839/- granted by the Tribunal under all the heads and if an amount Rs.1,80,000/- is deducted, that would be Rs.4,93,839/- the total amount of compensation entitled by the claimants. Accordingly, I proceed to pass the following:
ORDER i. The appeal is allowed in part.
ii. The impugned judgment and award dated 22.03.2013, passed in MVC No.3314/2009, on the file of Spl. XI Addl. Judge & Motor Accident Claims Tribunal, Bengaluru, is modified to an extent that
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NC: 2024:KHC:48448 MFA No. 9508 of 2013 the respondents/claimants are entitled for compensation of Rs.4,93,839/- (Rupees Four Lakh Ninety Three Thousand Eight Hundred Thirty Nine Only), along with interest at 6% per annum from the date of deposit till realization. iii. The amount in deposit shall be transferred to the Tribunal forthwith.
iv. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
v. Draw award accordingly.
SD/-
(HANCHATE SANJEEVKUMAR)
JUDGE
HDK
List No.: 1 Sl No.: 34
CT: BHK