Andhra Pradesh High Court - Amravati
Krishnasish Chanda vs Naveen Kumar 2 Others on 18 June, 2025
Author: B Krishna Mohan
Bench: B Krishna Mohan
1
THE HON'BLE SRI JUSTICE B.KRISHNAMOHAN
AND
THE HON'BLE SRI JUSTICE A. HARI HARANADHA SARMA
M.A.C.M.A.No.1656 of 2015
JUDGMENT:[ per Hon'ble Sri Justice A.Hari Haranadha Sarma] I. Introduction:-
1. [i] This MACAMA filed under Section 173 of Motor Vehicles Act [for short 'M.V. Act], is directed against the Order and Decree dated 29.04.2015 passed in M.V.O.P.No.501 of 2012 by the Motor Accidents Claims Tribunal-cum- VII Additional District Judge, Visakhapatnam [for short " MACT"].
[ii] Claimant before the learned MACT is the appellant before this Court. His claim made for Rs.70,00,000/- was allowed in part awarding a compensation of Rs.3,35,000/-.
[iii] Feeling aggrieved by the said order and decree, present appeal is filed.
2. 1st respondent herein is the driver and the 2 nd respondent herein is the owner of the Maruthi Car bearing No.AP 31 BD 2630 [for short 'the offending vehicle'], which was insured with the 3rd respondent.
3. For the sake of convenience, parties will be herein after referred to as the claimant and the respondents, as and how they are arrayed, in the impugned proceedings.
2
II. Case of the claimant: 4. [i] On the fateful day viz., on 30.12.2010 at about 8.45 p.m.,
claimant was travelling on his scooter bearing No.AP 31 A 7102 along with his son as pillion rider, on the road leading from Maddilapalem junction to III Town Police Station and when they reached A.U. Engineering college, the offending vehicle came in opposite direction, driven by the 1 st respondent in a rash and negligent manner with high-speed and dashed the scooter on which the claimant was travelling, whereby the accident occurred and the claimant sustained grievous injuries and his son sustained simple injuries. They were shifted to Seven Hills Hospital.
[ii] Claimant has undergone treatment as in-patient in Seven Hills Hospital from 30.12.2010 to 8.2.2011. He has suffered the following injuries:
1) IT fracture femur right, 2) S/c fracture femur 3) Rt.com. fracture proximal 1/3rd femur, 4) Lt. fracture medical condyle Lt. tibia 5) Multiple facture ribs and 6) fracture calvicle Lt.
[iii] Petitioner further sustained injury to the spleen, forehead and right eye lid. He has also sustained intestinal perforation of size 2cm diameter in the jejunum.
[iv] He has undergone Laparectomy, splenectoy and internal resection, by a surgical gastroenterologist. 3
[v] Again the petitioner was admitted in Seven Hills Hospital on 10.03.3011 for 2 days and on 19.07.2011 for further two days and finally reported to his work on 06.06.2011. For 5 months, he was bed ridden undergoing treatment as in patient and out-patient.
[vi] Most of the bills paid to the Hospital directly by Steel Plant authorities, where he was working.
[vii] By the date of accident, the claimant was aged '46' years, working as Assistant General Manager in Rashtriya Ispat Nigam Ltd., Visakhapatnam Steel Plant. Though he resumed to his office after treatment, he was not comfortable and suffering from several difficulties and he lost several privileges of life. He has been suffering from pain in both knees, restriction of movement. There is a shortening of left lower limb of about 4 cm. Hence, there is limping while walking.
[viii] He is suffering partial and permanent disability of 50%. He had to engage attendant during treatment and hired car to move. He had to engage a driver for attending the office from his home.
[ix] Further he was in hospital for 45 days continuously, there was necessity of transportation of family members and attendants. Even during 5 months bed rest and intermittent treatments, he had to incur expenditure for transportation to hospital and for extra nourishment. His scooter got damaged. Now he cannot drive the vehicles. He had to incur expenditure towards driver's wages etc., he has availed142 days of Earned Leave from 4 December 2010 to August 2011 due to the accident., which costs about Rs.4,00,000/-.
[x] He has undergone more than 5 surgeries for the factures. Nails were inserted, undergone plastic surgery. Normally plates, nails and screws are to be removed after some time, but in the case of the petitioner, they cannot be removed since number of plates, nails and screws are fixed to him during the surgeries. He has to adjust throughout his life.
[xi] The claimant cannot squat, jump, run or even walk fastly. His movements are restricted and he cannot play with children. He lost all fun in life. He lost amenities, comforts and capacity for enjoying the life. Spleen is an important organ in the human body, which controls the bacteria in blood stream but the same has been removed, therefore, the ability to resist infections is also lost. His expectation of life is also reduced by 5 years and he has lost conjugal bliss also. Hence, he is entitled for just and reasonable compensation of Rs.70,00,000/- in all.
5. The respondents 1 and 2/ driver and owner of the offending vehicle, remained ex parte.
III. Case of the Respondent No.3/Insurance Company:
6. The petitioner is put to strict proof of all the allegations made, particularly with regard to manner of accident, negligence of the driver of the offending vehicle. Nature of injuries suffered, treatment undergone, effect 5 of injuries. Age, occupation and income of the claimant, loss of income etc. The negligence of the claimant is the cause for the accident. As he has taken sudden right turn to cross the busy road without bothering the traffic, hence, he alone is responsible for the accident. Therefore, the claimant is not entitled for any compensation.
7. On the strength of pleadings, learned MACT settled the following issues for trial:
1) Whether the accident took place due to rash and negligent driving of the driver of the crime vehicle i.e., Maruthi Car bearing No.AP 31 BD 2630 resulting in injuries to the petitioner?
2) Whether the petitioner is entitled for compensation and if so, to what amount and from against which of the respondents?
3) To what relief?
IV. Evidence before the learned MACT:
8. Oral and Documentary evidence:-
For the Claimant For the Respondents
Ex.No. Description Ex.No. Description
Ex.A1 Attested copy of F.I.R. in Cr.No.327 of - Nil-
2010
Ex.A2 Attested copy of Charge Sheet.
Ex.A3 Attested copy of wound certificate.
Ex.A4 Attested copy of M.V.I. Report
Ex.A5 Copy of Discharge Summary issued by
Seven Hills Hospital for the period from
10.03.2011 to 12.03.2011
Ex.A6 Copy of Discharge Summary issued by
Seven Hills Hospital, for the period from
19.07.2011 to 25.07.2011.
Ex.A7 Copy of Discharge Summary issued by
Seven Hills Hospital, for the period from
6
19.07.2011 to 21.07.2011.
Ex.A8 Copy of Insurance Policy valid from
20.09.2010 to 19.09.2011
Ex.A9 Copy of Driving Licence of Respondent
No.1
Ex.A10 Copy of Medical Fitness Certificate issued by SevenHills Hospital, dated 04.06.2011 Ex.A11 Copy of Disability Certificate issued by SevenHills Hospital, dated 17.08.2011 Ex.A12 Copy of Certificate issued by Steel Plant, showing the details of earned leaves availed by the petitioner Ex.A13 Bunch of X-rays [2 nos.] Ex.A14 Discharge Summary issued by SevenHills Hospital, for the period from 30.12.2010 to
08.2.2011.
Ex.A15 Discharge Summary issued by Seven Hills Hospital for the period from 10.03.2011 to 12.3.2011 Ex.A16 Discharge Summary issued by SevenHills Hospital, from 19.07.2011 to 21.7.2011 Ex.A17 Disability Certificate issued by Medical Board.
Ex.A18 Original Certificate issued by Steel Plant, dated 08.08.2011 showing the details of earned leaves availed by the petitioner.
Witnesses examined Witnesses examined
PW.1 Krishnasish Chanda
[Claimant / Petitioner] -None-
PW.2 Sangamkitra Paul Choudhary
[wife of the claimant]
PW.3 Kona Govinda
[ claimant's Car driver]
PW.4 Dr.N.Vinod kumar
[Physiotherapist in Seven Hills Hospital,
Visakhapatnam]
PW.5 Dr.J.M. Shah
[Consultant Orthopaedic Surgeon, Seven Hills Hospital, Visakhapatnam] V. Findings of the learned MACT:-
9. [i] Evidence of claimant as PW.1 coupled with the documentary evidence, vide Ex.A1-FIR, Ex.A2-Charge Sheet, Ex.A3-wound Certificate and Ex.A4, MVI report vindicating the contention of the claimant, as to 7 negligence of the driver of the offending vehicle, and his evidence did not shake even after the cross-examination. There is no rebuttal evidence from the Insurance Company. Therefore, the accident and negligence of 1 st respondent, as the cause for the accident stands proved. Accordingly, the issue touching the negligence is answered in favour of the claimant.
[ii] The claimant relied on the oral evidence of PW.5 coupled with Ex.A14 to Ex.A16, Discharge Summaries dated 08.02.2011, 12.03.2011 and 21.07.2011 to prove the effect and nature of injuries, mode and period of treatment. Evidence of PW.5 coupled with Ex.A14-Discharge Summary shows that the petitioner got admitted on 30.12.2010 with a complaint of pain of lower limb, chest pain over the forehead, having history of road traffic accident. The evidence further reveals (7) injuries, operations/surgeries conducted on 03.01.2011, 12.01.2011, 26.01.2011, 31.12.2010 readmission on 19.07.2011.
[iii] Basing on the evidence, claimant's entitlement for compensation is as follows:-
1. Pain and suffering Rs.10,00,000/-
2. Physiotherapy Rs.28,000/-
3. Loss of earning during the period of Rs.4,00,000/-
treatment, rests etc., in view of the availing Earned Leave
4. Transportation Charges Rs.20,000/-
[@Rs.4000/- p.m.]
5. Extra nourishment [@Rs.4ooo/- p.m.] Rs.20,000/-
6. Attendant charges Rs.15,000/-
7. Loss of damages, cloths etc. Rs.1000/-
8. Damages to Schooter Rs.6000/-
9. Charges for availing driver for travel -Nil- 8
10. Towards loss of amenities 1,75,000/-
[@Rs.15,000/- p.a.] (From 47 years of age of the petitioner to 65years average expectancy of life.)
11. Loss of expectation of life -Nil-
12. Impairment of physiological functions -Nil-
13. Loss of privilege of sexual life Rs.5,00,000/-
_______________
Total Rs.21,55,000/-
[iv] Since the claimant received Rs.18,20,000/- under Group
Insurance Policy obtained through the employer, and as per the authorities relied by the 3rd respondent- Insurance Company viz., ICICI Lombard General Insurance Co., Ltd., Vs. Swatantrata Sharma and Ors.1, National Insurance Co., Ltd., V.Shiela Avinashi and Ors2., Helen C. Rebello V. Maharashtra S.R.T.C.3, the amount paid under Group Insurance, is liable to be deducted. Hence, the claimant's entitlement is for Rs.3,35,000/- [Rs.21,55,000/ - Rs.18,20,000/-].
VI. Grounds/Arguments in the Appeal:
For the Appellant / claimant:-
10. [i] Learned MACT grossly erred in not granting compensation under various other heads and the compensation awarded is meager.
[ii] The learned MACT ought to have seen that the appellant suffered permanent disability.
[iii] The judgments of the Hon'ble Supreme Court are not properly understood by the learned MACT.
12014 ACJ 1256 Delhi HC(SB) 2 2014 ACJ 320 Delhi HC (SB) 3 1999 1 SCC 90, SC DB 9 [iv] The Scheme under which the Group Insurance obtained from the employer is different from the entitlement under M.V. Act.
[v] Compensation received under Group Insurance Scheme cannot be deducted.
[vi] The obligation under Group Insurance Policy and the statutory obligation in terms of Motor Vehicles Act are entirely different and one shall not overlap the other.
For the Respondent No.3-Insurance Company:-
11. [i] The findings of the learned MACT on the liability of the Insurance Company particularly deducting the compensation already received pursuant to Group Insurance Policy obtained through the employer is justified.
[ii] The quantum of compensation claimed and arrived is excessive and there are no grounds to interfere with the order and decree under challenge and appeal is fit to be dismissed with costs.
12. Perused the pleadings and evidence on record. Thoughtful consideration is given to the arguments advanced by the both sides.
13. There is no appeal by the Insurance Company. Therefore, the occurrence of the accident, negligence of the driver of the offending vehicle, claimant sustaining injuries due to the pleaded accident, the negligence if any on the part of claimant in occurrence of the accident are all out of dispute.
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14. The points and questions arises for determination and answers are :-
1) Is the 3rd respondent-Insurance Company is entitled to claim an adjustment or credit, for the amount received by the claimant, under Group Insurance Policy, obtained through employer and to reduce the claimant's entitlement accordingly?
2) What is just and reasonable compensation to which the claimant is entitled? And whether the quantum of compensation awarded by learned MACT require modification?
3) What is the liability of the respondent No.3-Insruance Company?
4) What is the result of the appeal? Point No.1:-
15. Written statement/counter filed on behalf of the 3rd respondent-
Insurance Company vide para-5 is indicating that the employer of the claimant had insured all the employees and the claimant has claimed substantial amount from the insurer, hence, there cannot be double benefit. Evidence regarding receiving of amount by the claimant and its nature as well as the basis for such receiving:-
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16. During the cross-examination of claimant/PW.1, it was elicited that his scooter was validly insured and he did not make any claim, from his Insurance Company. He has admitted that he was paid under personal claim for an amount of Rs.18,20,000/- by New India Assurance Company under Group Insurance Policy.
17. On behalf of the respondent no witnesses were examined.
18. No further questions were put as to the Group Insurance Policy.
Except the admission of claimant as to receiving of amount under group Insurance Policy, there is no denial from respondent No.3-Insurance Company from the factual perspective, as to contribution of claimant towards premium under separate contract (Group Insurance Policy).
19. The learned MACT understood the context that claimant shall not get benefit twice for the same accident, when the claimant is benefitted under other source, it has to be deducted from the compensation awarded under Motor Vehicle Accident claim.
20. Learned MACT has relied on the observations of Delhi High Court made in:
1) ICICI Lombord Insurance Company Ltd., Vs. Swatantra Sarma and Ors.4 , where under the medi-claim Policy was obtained and medical expenditure reimbursed was permitted to be deducted.4
2014 ACJ 1256 12
2) National Insurance Company Ltd. Vs.Shiela Avinashi and Ors.5, wherein also the claimant received amount under medi- claim Policy and the same was given deduction towards medical expenditure.
21. Further, learned MACT has relied on the observations of Hon'ble Apex Court made in a case initially Helen C Rebello (MRs.) and Others Vs. Maharasthra State Road Transport Corporation and Anr 6, for the purpose of interpreting the pecuniary advantages received by the claimants and deduction of such advantages from the compensation payable.
22. In the light of the general principle of computation of loss and gain and consequential adjustment of what is gain and what is loss, learned MACT understood that a person cannot gain twice towards from two sources on the happening of same incident.
23. In Helen C. Rebello's case, the Hon'ble Apex Court while referring to Motor Vehicle Accident's Act 1939, Fatal Accidents Act, 1855 and Motor Vehicles Act, 1988 made relevant observations touching various aspects, touching the issue viz., pecuniary advantage from para 33 to 36 of the judgment, which are as follows:-
"33. Thus, it would not include that which claimant receives on account other form of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount 5 2014 ACJ 320 6 1999(1) SCC 90 13 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 deduction. However, where the employer insures his employee, 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 deduction. However, our legislature has taken not of such contingency, through the proviso of Section
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.
34. This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., same accident. It is significant to record here in both the sources, viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution. How thus an amount earned out of one's labour or contribution towards one's wealth, savings, etc. either for himself or for his family, which such person knows, under the law, has to go to his heirs after his death either by succession or under a will could be said to be the 'pecuniary gain' only on account of one's accidental death. This, of course, is pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicle Act. There is no co-relation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any co-relation with an amount earned by an individual. Principle of loss and gain has to be on the same place within the same sphere, of course, subject to the contract to the contrary or any provisions of law.
35. Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive 14 this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event viz., accident which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No co-relation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which insured contributes in the form of premium. It is receivable even by the insured, if he lives till maturity after paying all the premiums, in the case of death insurer indemnifies to pay the sum to the heirs, again in terms of the contracts for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any case, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no co- relation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter so between them and not to which, there is no semblance of any co-relation. The insured (deceased) contributes his own money for which he receives the amount has no co- relation to the compensation computed as against tortfeasor for his negligence on account of accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury of death without making any contribution towards it then how can fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act, he receives without any contribution. As we have said the compensation payable under the Motor Vehicles Act is statutory while the amount received under the life insurance policy is contractual.15
36. As we have observed the whole scheme of the Act, in relation of the payment of compensation to the claimant, is beneficial legislation, the intention of the legislature is made more clear by the change of language from what was in Fatal Accidents Act, 1855 and what is brought under Section 110-B of 1939 Act. This is also visible through the provision of Section 168(1) under the Motor Vehicles Act, 1988 and Section 92-A of 1939 Act which fixes the liability on the owner of the vehicle even on no fault. It provides where the death or permanent disablement of any person has resulted from an accident spite of no fault of the owner of the vehicle, an amount of compensation fixed therein is payable to claimant by such owner of the vehicle. Section 92-B ensures that the claim for compensation under Section 92-A is addition to any other right to claim compensation respect whereof under any other provision of this Act or of any other law for the time being in force. This clearly indicates the intention of the legislature which is conferring larger benefit to the claimant. Interpretation of such beneficial legislation is also well settled. Whenever there be two possible interpretations in such statute then the one which subserves the object of legislation, viz., benefit to the subject should be accepted. In the present case, two interpretations have given of this statute, evidenced by two distinct sets of decisions of the various high courts. We have no hesitation to conclude that the set of decisions, which applied the principle of no deduction of the life insurance amount should be accepted and the other set, which interpreted to deduct, is to be rejected. For all these consideration we have no hesitation to hold that such High Courts were wrong in deducting the amount paid or payable under the life insurance by giving restricted meaning to the provisions of the Motor Vehicles Act basing mostly on the language of English statutes and not taking into consideration the changed language and intends of the legislature under various provisions of the Motor Vehicles Act, 1939."
24. The Hon'ble Supreme Court in Sebastiani Lakra and Ors. Vs. National Insurance Company ltd. And Anr 7., observed in para 6 that even while following traditional view of taking into account the loss of 7 2018 LASE Suit SC 1039=AIR 2018 SC 5034=2019(17)SCC 465 16 income and the benefits accrued, it is well settled position of law that the tort- feasor cannot take benefit of the munificence or gratituity of others.
25. In Sebastiani Lakra's case [cited 7 supra] the Hon'ble Apex Court referred to Helen C. Rebello's case [cited 6 supra] Patricia Jean Mahajan's8 case, Vimal Kanwar Kishore Dan9's case and Shashi Sharma10's case and observed that the principle in Helen C. Rebello's case is followed.
26. The context in Sebastiani Lakra's case [cited 7 supra] before the Supreme Court, which was considered by the three Judges Bench, is that an objection raised by the Insurance Company for adjustment of the amount of Rs.50,082/- paid to the claimants under Employees Family Benefit scheme. Considering the same, when the compensation payable was reduced, it was held that such deduction cannot be allowed. Relevant observations made in para-12 to 14 of the judgment, they are as follows:-
"12. The law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependants or the legal heirs of the deceased on account of his death in a motor vehicle accident.8
2002(6) SCC 281 9 2013(7) SCC 476 10 2016(9) SCC 627 17 The claimants/dependants are entitled to "just compensation" under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependants as a result of some contract or act which the deceased performed in his lifetime cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependants only after his death.
13. As far as any amount paid under any insurance policy is concerned whatever is added to the estate of the deceased or his dependants is not because of the death of the deceased but because of the contract entered into between the deceased and the insurance company from where he took out the policy. The deceased paid premium on such life insurance and this amount would have accrued to the estate of the deceased either on maturity of the policy or on his death, whatever be the manner of his death. These amounts are paid because the deceased has wisely invested his savings. Similar would be the position in case of other investments like bank deposits, share, debentures, etc. The tortfeasor cannot take advantage of the foresight and wise financial investments made by the deceased.
14. As far as the amounts of pension and gratuity are concerned, these are paid on account of the service rendered by the deceased to his employer. It is now an established principle of service jurisprudence that pension and gratuity are the property of the deceased. They are more in the nature of deferred wages. The deceased employee works throughout his life expecting that on his retirement he will get substantial amount as pension and gratuity. These amounts are also payable on death, whatever be the cause of death. Therefore, applying the same principles, the said amount cannot be deducted."
27. Further, the Hon'ble Apex Court in Vimal Kanwar and Ors. Vs. Kishore Das11, while interpreting the pecuniary advantages received, observed that the salary receivable by the dependents upon compassionate 11 2013(7) SCC 476 18 appointment of a victim also does not come under pecuniary advantage on par with Provident fund, pension, Life Insurance amount receivable by the claimant and the same do not come within the purview of Motor Vehicles Act to be termed as pecuniary advantage. Relevant observations are made while referring to para 35 of the Helen Rebello's case, at para 19 of the judgment.
28. From the precedential guidance, the amounts received from what sources cannot be deducted from the compensation payable to the victims in a motor accident and which do not fall under 'pecuniary advantage' for the purpose of balancing loss and gain can be illustrated as follows:-
1) Salary received by the dependent upon compassionate appointment due to victim's death cannot be termed as 'pecuniary advantage'.
2) Pension is not pecuniary advantage.
3) Provident Fund is not a pecuniary advantage.
4) Life Insurance amount receivable by the claimants (L.Rs. of deceased) is not a pecuniary advantage.
5) Bank balances received by the legal representatives of a deceased cannot be pecuniary advantage.
6) Share, share values, fixed deposit matures to the heirs are not a pecuniary advantage.
29. A person may take a security measure with an act of wisdom. That cannot be a gain towards a tort-feasor. The provisions of Section 1(a) of Fatal Accidents Act, 1955 and Section 110 of Motor Vehicles Act, 1939 are 19 different. The provisions of Motor vehicles Act indicate the legislative intention conferring visible benefit to the claimants, by securing compensation casting obligation on the tort-feasor and insurer.
30. The application of general principle under common loss and gain for compensation under Motor Vehicles Act, must co-relate to the type of injuries or deaths. In Helen Rebello's case, the point relating to the benefits that could be received by the legal representatives in case of deaths are widely considered with reference to the Insurance Policy obtained for the benefit of the deceased/victim. From para-35 of the judgment in Helen Rebello's case, it can be inferred that when the benefit is receivable by a claimant, both from the employer or under M.V. Act, is without his contribution, then the profit and loss theory would apply. However, if a benefit or an amount is earned by his own labour or contribution, that pecuniary cannot be balanced out of the amount received as compensation under M.V. Act, particularly when there is no co-relation between two amounts. An amount of loss and gain under one contract, cannot be made applicable to the loss and gain of another contract. Similarly an amount receivable under statute may not have relation to an amount earned by an individual in all cases.
31. There is no evidence indicating on what basis the amount of Rs.18,20,000/- is paid by the New India Assurance Company to the claimant, pursuant to Group Insurance Policy. Generally, the contribution of 20 the beneficiary to the Policy is the basis in Group Insurance Policy. It may be either by way of direct contribution or deduction from the salary. In any case it is a contract independent. If such a security measure taken individually, with the wisdom, such a wise effort of a vigilant and responsible person cannot be an advantage to the tort-feasor.
32. In view of the above discussion, point No.1 is answered against the Insurance Company and in favour of the claimant concluding that the Insurance Company is not entitled to claim adjustment and credit of the amount received by the claimant under Group Insurance Policy through employer.
Point No.2:-
Precedential Guidance:
33. A reference to parameters, for quantifying the compensation under various heads, addressed by the Hon'ble Apex Court is found necessary, to have standard base in the process of quantifying the compensation, to which the claimant is entitled.
(i) With regard to awarding just and reasonable quantum of compensation, the Hon'ble Supreme Court in Baby Sakshi Greola vs. Manzoor Ahmad Simon and Anr.12, arising out of SLP(c).No.10996 of 2018 on 11.12.2024, considered the scope and powers of the Tribunal in awarding just and compensation within the meaning of Act, after marshaling entire case law, more particularly with reference to the earlier observations 12 2025 AIAR (Civil) 1 21 of the Hon'ble Supreme Court made in Kajal V. Jagadish Chand and Ors.13, referred to various heads under which, compensation can be awarded, in injuries cases vide paragraph No.52, the heads are as follows:-
S. No. Head Amount (In ₹)
1. Medicines and Medical Treatment xxxxx
2. Loss of Earning Capacity due to Disability xxxxx
3. Pain and Suffering xxxxx
4. Future Treatment xxxxx
5. Attendant Charges xxxxx
6. Loss of Amenities of Life xxxxx
7. Loss of Future Prospect xxxxx
8. Special Education Expenditure xxxxx
9. Conveyance and Special Diet xxxxx
10. Loss of Marriage Prospects xxxxxx
_________
Total Rs. ...xxxxxx
_________
(ii). Hon'ble Apex Court in Yadava Kumar Vs. Divisional
Manager, National Insurance Company Limited and Anr.,14 vide para No.10, by referring to Sunil Kumar Vs. Ram Singh Gaud15,as to application of multiplier method in case of injuries while calculating loss of future earnings, in para 16 referring to Hardeo Kaur Vs. Rajasthan State Transport Corporation16, as to fixing of quantum of compensation with liberal approach, valuing the life and limb of individual in generous scale, in para 17 observed that :-
"The High Court and the Tribunal must realize that there is a distinction between compensation and damage. The expression compensation may include a claim for damage but compensation is more comprehensive. Normally damages are given for an injury which is suffered, whereas compensation stands on a slightly higher footing. It is given for the atonement of injury caused and the intention 13 2020 (04) SCC 413 14 2010(10)SCC 341 15 2007 (14) SCC 61 16 1992(2) SCC 567 22 behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief. Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter of assessment of damages. At the same time it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation."
(iii). In Rajkumar Vs. Ajay Kumar and Another17 vide para No.19, the Hon'ble Apex Court summarized principles to be followed in the process of quantifying the compensation after referring to socio economic and practical aspects from which, the claimants come and the practical difficulties, the parties may face in the process of getting disability assessed and getting all certificates from either the Doctors, who treated, or from the medical boards etc., it is observed that :-
"...We may now summarise the principles discussed above :
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.17
2011 (1) SCC 343 23
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors..."
(iv) In Sidram vs. United India Insurance Company Ltd. and Anr.18 vide para No.40, the Hon'ble Apex Court referred to the general principles relating to compensation in injury cases and assessment of future loss of earning due to permanent disability by referring to Rajkumar's case, and also various heads under which compensation can be awarded to a victim of a motor vehicle accident.
(v) In Sidram's case, reference is made to a case in R.D. Hattangadi V. Pest Control (India) (P) Ltd.19. From the observations made therein, it can be understood that while fixing amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But, all these elements have to be viewed with objective standards. In assessing damages, the Court must exclude all considerations of matter which rest in awarding speculation or fancy, though conjecture to some extent is inevitable.
Analysis of Evidence:
34. [I] F.I.R. is registered under Sections 337, 338 IPC. As per wound certificate/Ex.A3, the petitioner/claimant suffered six grievous injuries 18 2023 (3) SCC 439 19 1995 (1) SCC 551 24 reflected therein. The claimant as PW.1 referred to six injuries and some other injuries also, which are mentioned in the wound certificate.
[II] PW.2, wife of the claimant deposed about the accident and the injuries sustained by her husband and treatment taken in Seven Hills Hospital on 10.03.2011 for two days, on 19.07.2011 for two days, resuming to his work on 06.06.2011 and bed rest for (5) months, discomfort of the claimant due to the surgeries undergone for various fractures, loss of spleen. She has also stated that the claimant lost privileges of spending happy moments in bed room, resulting in mental agony. She has added about she consoling her husband that he need not have mental agony for missing the conjugal bliss, particularly sensual satisfaction and that she cannot say more being a lady.
[III] PW.3, one Kona Govinda is said to be driver engaged by the claimant, for assisting the claimant. He has stated that salary of Rs.4000/- per month is paid for 1st year, Rs.5000/- per month paid for II year and Rs.6000/- per month paid in III year and he has denied the suggestion that no amount was paid accordingly.
[IV] PWs.4 and 5 are Doctors, who treated the claimant. [V] Summary of evidence of PW.4 is as follows:-
1. PW.4 treated the claimant as in-patient.25
2. Treatment was continued even after discharge from hospital.
3. Claimant suffered multiple injuries mentioned in Ex.A3/wound certificate.
4. Physiotherapy was given to post surgery for those injuries.
5. Claimant was visiting PW.4, whenever he had any complaint.
6. Claimant approached PW.4, with the complaint of his sexual inability due to hip bone and femur fractures.
7. PW.4 has issued two (2) receipts, for Rs.20,500/- and Rs.7500/-
towards physiotherapy charges which are covered under Exs.A19 and Ex.A20.
8. During the cross-examination, he has stated that Dr.J.M.Shaw/PW.5, referred the claimant to PW.4, by giving specific instructions for lower limb exercises and knee bending exercises.
9. By the time of discharge on 08.02.2011, general condition of the claimant was satisfactory.
10. PW.4 used to attend one or two patients privately in a month.
11. Seven Hills Hospital authorities collect fees from the patients directly.
12. From 09.02.2011 to 09.03.2011, PW.4 attended the claimant/petitioner regularly.
13. Even thereafter, on 14.03.2011 to 04.06.2011, he attended PW.1 regularly.
14. After physiotherapy, the claimant improved considerably. He has denied the suggestion that Ex.A18 and Ex.A19 are fabricated. 26 [VI] The summary of evidence of PW.5 is as follows:-
1. He is Consultant Orthpaedic Surgeon, Seven Hills Hospital.
2. Ex.A5 is the Discharge Summary dated 08.02.2011, pertaining to the claimant.
3. PW.5 identified the claimant before the Court.
4. The admission was with the history of road traffic accident and pain of lower limb, chest and pain over forehead.
5. There was no distal neuro vascular deficit lower limbs.
6. There was tenderness over left ribs and left clavicle and also there was CLW (Consition Lacerated Wound) over forehead and right upper eye lid.
7. X-rays show:
1) I.T. fracture femur
2) S/C fracture femur
3) Old operated fracture proximal end Tibia
4) Comunited fracture proximal 1/3 femur (L)
5) Fracture Medical Condyle (L) Tibia
6) Multiple fracture ribs (L)
7) Fracture Clavicle (L)
8. USG (Ultra Sound) abdomen showed Splenic Laceration.
9. Patient was referred to surgical Gastro Surgeon and he was operated on 03.01.2011.
10. Three surgeries were conducted i.e., 1) DHS, 2)Open reduction Supra Condyle femur right and 3) Open reduction + T buttress plates Tibia (L) were done under general anaesthesia.
11. An other surgery was done on 12.01.2011 during which an interlocking nail fixation was done for fracture femur.
12. On 26.11.2011 interlocking screw fixations were done for same fracture.
13. His colleague had done a surgery on 31.12.2010 under GA exploratory aparotmy + spleenectory_ Intestinal resection 27 anastomosis. Plastic surgeon had done suturing of forehead and upper eye lid wound. He was discharged on 08.02.2011. 14 Ex.A15 is the Discharge Summary dated 12.03.2011. As per Ex.A15, the claimant got admitted on 10.03.2011 and discharged on 12.03.2011.
15. He was admitted for physiotherapy purpose under Dr.Vinod Kumar i.e., PW.4.
16. Ex.A6 is the Discharge Summary dated 21.07.2011. As per Ex.A16 the claimant got admitted in the Hospital on 19.07.2011 with a projecting screw from his right knee and the same was removed. He was discharged on 21.07.2011.
17. On 17.08.2011, PW.5 examined the claimant and found 50% disability and accordingly Ex.A17-Disability Certificate was issued.
18. Even by the date of giving evidence, the claimant was attending for treatment.
19. Due to restriction of movement of lower limbs, the claimant feels difficulty in his sexual life.
20. During the cross-examination, it is elicited that mall-union is no mentioned in the Discharge Summary and he has added that it is not possible to assess the same at the time of discharge.
21. Post surgery recovery is satisfactory.
22. As per Ex.A16, last discharge summary dated 21.07.2011, the wounds are healed and the petitioner was fit to resume his duty.
35. Other relevant factors and material contribute for assessing the quantum of compensation are:-
28
1) Medical expenditure was reimbursed by the Steel Plant where the claimant was working
2) Petitioner is suffering 50% disability, which is permanent in nature.
3) Ex.A17, Disability Certificate is issued by the Medical Board, is indicating the disability at 55% and the same is permanent in nature.
4) The petitioner admitted that there is no loss in income and he has resumed to work and attending the job.
5) The claimant is facing discomfort on various aspects, including missing of sensual satisfaction.
6) Learned MACT considered the loss of earning, during the period of treatment and extra nourishment etc. For the said period the assistance of the driver for transportation etc., are required to be considered, if not for the entire life, @5000/- p.m. for 6 months.
7) The permanent disability assessed at 55% might not have contributed for the loss of income, due to continuation of employment. But the same would compensate loss on several aspects. Claimant may not be in a position to compete with others, the stress and trauma would lead to slow down the performance etc.
8) The treatment of employer and the colleagues will be different.
There may be inexplainable humiliation etc..
9) Losing self-confidence and development of self-pity etc. also required to be considered.
10) Under the head of permanent disability, though not on the basis of pay the claimant is drawing but some reasonable compensation on national basis is required to be awarded with some guess work. 29
38. In the light of the oral and documentary evidence available on record and discussion made above with reference to authorities cited, the entitlement of the claimant for compensation in comparison to quantum arrived by the learned MACT is found as follows:
S.No. Head Granted by the Fixed by this
learned MACT Appellate Court
1. Medical exp. and physiotherapy Rs.28,000/- Rs.28,000/-
2. Partial loss of earnings during Rs.4,00,000/- Rs.4,00,000/-
the period of treatment etc.
3. Compensation under the head of -Nil- Rs.5,00,000/-
permanent disability
4. Transportation Charges Rs.20,000/- Rs.50,000/-
5. Pain and suffering Rs.10,00,000/- Rs.5,00,000/-
6. Future Treatment Nil Rs.2,00,000/-
7. Attendant Charges Rs.15,000/- Rs.50,000/-
[Rs.3000/- x 5 m]
8. Loss of amenities of Life and Rs.1,75,000/- Rs.2,00,000/-
discomfort
9. special diet and extra Rs.20,000/- Rs.50,000/-
nourishment
10. Compensation for loss of -Nil- Rs.2,00,000/-
expectation of life
11. Compensation for loss of privilege Rs.5,00,000/- Rs.5,00,000/-
of sexual life
12. a) Damage to cloths etc., 1000/- 1000/-
b) Damage to Scooter Rs.6000/- Rs.6000/-
13. Wages to the Car Driver - Nil- Rs.30,000/-
Total Rs.21,55,000/- Rs. 27,15,000/-
[-] Rs.18,20,000/-
[deduction of Group
Insurance Claim]
Balance = _____________
Rs.3,35,000/-
30
39. Learned MACT had deducted an amount of Rs.18,20,000/- paid by the New India Assurance Company under Group Insurance Policy from the compensation amount arrived at Rs.21,55,000/- and held that the claimant is entitled for compensation of Rs.3,35,000/-.
40. In view of the discussions made and conclusions drawn under point No.1 the Insurance Company is not entitled to claim adjustment and credit of the amount received by the claimant under Group Insurance Policy. Therefore, the claimant is entitled for compensation of Rs.27,15,000/- with interest @7.5 % p.a. from the date of petition and till the date of realisation. Hence, the impugned order and decree dated 29.04.2015 is require interference and modification to that effect. Point No.2 is answered accordingly.
Point No.3 :-
41. For the aforestated reasons and the conclusions drawn under points 1 and 2, the respondents 1 to 3 are found jointly and severally liable to pay the compensation of Rs.27,15,000/- awarded by this Court. Point No.3 is answered accordingly.
Point No.4:
42. In view of the above discussion and the conclusions drawn under points 1 to 3, in the result, appeal is allowed.31
[i] The compensation of Rs.3,35,000/- awarded under the impugned order and decree dated 29.04.2015 is modified and enhanced to Rs.27,15,000/- with interest @7.5%p.a., from the date of petition till the date of realisation.
[ii] The respondents 1 to 3 are jointly and severally liable to pay the compensation.
[iii] The claimant/petitioner is entitled to withdraw the entire compensation amount at once, on deposit.
[iv] No costs in the facts and circumstances.
As a sequel, miscellaneous petitions, if any, pending in this appeal shall stand closed.
________________________ JUSTICE B.KRISHNAMOHAN __________________________________ JUSTICE A. HARI HARANADHA SARMA Date: 18.06.2025 Pnr