Mariamma James vs Alphones Antony on 27 May, 2013

[Cites 6, Cited by 0]

Kerala High Court

Mariamma James vs Alphones Antony on 27 May, 2013

This appeal is preferred by the legal heirs of one James Joseph who lost his life in a motor vehicle accident, on being aggrieved by and dissatisfied with the quantum of compensation granted by the Additional Motor Accidents Claims Tribunal, Kottayam as per the judgment and award in O.P.(M.V.)No.1684/2011. The unfortunate incident occurred on 20.12.2009. On that fateful day at about 10.30 a.m. Sri. James Joseph was walking through Changanacherry - Vazhoor Road and when he reached near Madukkummoodu a motor vehicle bearing registration No.KL-33/A 5821 came from east and knocked him down. On sustaining severe injuries he was taken to Pushpagiri Medical College Hospital, Thiruvalla. While undergoing M.A.C.A.No.2095 of 2013 2 treatment he died on 11.03.2010. He was then aged 64 years. It is in the said circumstances that the appellants who are his widow and children filed the claim petition under Section 166 of the Motor Vehicles Act seeking a total compensation of Rs.10 lakhs. No oral evidence was adduced by both sides before the Tribunal. On the side of the appellants they got marked Exts.A1 to A6 and no documentary evidence was also adduced by the respondents. The Tribunal evaluated the evidence on record and the rival contentions and passed the impugned judgment awarding a compensation of Rs.3,59,000/- with interest at the rate of 8.5% per annum from the date of petition (27.12.2011) till realization. The captioned appeal has been preferred seeking enhancement of the quantum of compensation assessed and awarded thereunder.

2. We have heard the learned counsel for the appellants and the learned counsel for the third respondent Insurance Company.

M.A.C.A.No.2095 of 2013 3

3. In view of the absence of dispute regarding the accident, the insurance coverage of the aforementioned offending vehicle at the relevant point of time and also the cause of the accident as the rash and negligent driving by the first respondent a decision is called for only on the question of entitlement of the appellants for enhanced compensation. Though the said question appears to be less complicative and usually depends mainly on certain amount of guess work the case on hand carries a point of law to be resolved.

4. The learned counsel for the appellants mounted challenge against the judgment virtually under four heads. It is contended that the Tribunal granted only a paltry amount of Rs.7,000/- towards loss of consortium and it invites an upward modification in the light of the decision of the Hon'ble Apex Court in Rajesh v. Rajbir Singh [2013 (3) KLT 89 (SC)]. The same decision is also relied on to contend that the amount of Rs.4,000/- granted towards M.A.C.A.No.2095 of 2013 4 funeral expenses is inadequate. It is the contention of the learned counsel that in the light of the decision in Rajesh's case (supra) the first appellant is entitled to get a minimum of Rs.1,00,000/- towards loss of consortium and towards funeral expenses the appellants are entitled to get a minimum of Rs.25,000/-. The further contention is that though the accident occurred on 20.12.2009 James Joseph succumbed to the injuries sustained in the said accident only on 11.3.2010 and still, no amount was granted towards pain and sufferings. Lastly, it is contended that the Tribunal wrongly deducted an amount of Rs.5,01,927/- (534593- 32666) covered by Ext.A6 series of bills on the ground that the appellants got reimbursed Rs.5,01,927/- incurred in connection with the treatment expenses under a mediclaim policy. It is contended that as the appellant got the said amount of Rs.5,01,927/- reimbursed on the strength of another contract with another Insurance Company the said amount was not deductible. In support of the said M.A.C.A.No.2095 of 2013 5 contention, the learned counsel for the appellants relied on the decisions of the Hon'ble Apex Court in United India Insurance Co. Ltd. Patricia Jean Mahajan & Ors. [2002 ACJ 1441], and a Full Bench decision of Madhya Pradesh in Kashiram Mathur & Ors. v. Sardar Rajendra Singh & Anr. [1983 ACJ 152].

5. Per contra, the learned counsel appearing for the third respondent Insurance Company contended that the deduction of Rs.5,01,927/- is perfectly justifiable and it was done in consonance with the decision of the Hon'ble Apex Court in Patricia Jean Mahajan's case (supra) and a decision of a Division Bench of this Court in National Insurance Co. Ltd. v. Akber Badsha & Ors. [2015 (4) KLT 442]. The learned counsel also resisted the other contentions of the appellants.

6. We will firstly consider the question whether the deduction effected by the Tribunal taking note of the reimbursement of treatment expenses to the tune of M.A.C.A.No.2095 of 2013 6 Rs.5,01,927/- is lawful and could be sustained. Evidently, there has been a cleavage of opinion on the question of effecting deduction in such circumstances. There are two distinct schools of thought on that issue. One is somewhat a liberal view. It is to the effect that as regards money coming to the claimant under a different contract of insurance it would be unjust and unreasonable to hold that the money which he spent prudently on premium and the benefit flows from it should enure or ensure to the benefit of the tort- feasor. The second one certainly, is founded on avoidance of receipt of double benefits out of matters having co-relation. While considering the said question the decision of the Hon'ble Apex Court in Patricia's case assumes relevance. May be, it is paradoxical that both sides relied on the said decision. The learned counsel for the appellants contended that in the light of Patricia's case the action on the part of the Tribunal in effecting deduction as aforesaid while granting amount towards medical expenses is liable to be M.A.C.A.No.2095 of 2013 7 interfered with as the said amount is not deductible and the thrift, prudence and foresight on the part of the deceased should not and could not go to the benefit of the wrongdoer. The learned counsel relied on paragraph Nos. 33 to 36 of the said decision to contend that the ratio in Patricia's case was, virtually, violated by the Tribunal by effecting deduction while granting reimbursement of the medical expenses met for the treatment of the deceased, as per the impugned award.

7. A perusal of paragraph No.36 of the judgment in Patricia's case would reveal that after elaborately considering the rival contentions in the light of earlier decisions the Hon'ble Apex Court held that deduction on account of receipt of insurance policy and social security benefits by the claimants, is normally impermissible. The learned counsel for the appellant laid emphasis on the following observation of the Hon'ble Apex Court, in Patricia's case which in troth, is a quotation with approval, M.A.C.A.No.2095 of 2013 8 from an earlier decision:

"How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract?"

A scanning of paragraph 35 of the decision in Patricia's case would reveal that after quoting the aforesaid observation made by the Apex Court in its earlier decision in Helen C. Rebello (Mrs.) & Ors. v. Maharashtra State Road Transport Corporation & Anr. [(1999) 1 SCC 90] Hon'ble Apex Court concurred with the earlier observations made in Helen's case (supra) and went on to hold thus:-

"We are in full agreement with the observations made in the case of Helen C. Rebello, 1999 ACJ 10 (SC), that principle of balancing between losses and gains, by reason of death, to arrive at amount of compensation is a general rule, but what is more important is that such receipts by the claimants must have some co-relation with the accidental death by reason of which alone the claimants have received the amounts. We do not think it would be necessary for us to go into the question of M.A.C.A.No.2095 of 2013 9 distinction made between the provisions of the Fatal Accidents Act and the Motor Vehicles Act. According to the decisions referred to in the earlier part of this judgment, it is clear that amount on account of social security as may have been received must have nexus or relation with the accidental injury or death, so far to be deductible from the amount of compensation. There must be some co-relation between the amount received and the accidental death or it may be in the same sphere, absence the amount received shall not be deducted from the amount of compensation. Thus the amount received on account of insurance policy of the deceased cannot be deducted from the amount of compensation though no doubt the receipt of the insurance amount is accelerated due to pre-mature death of the insured. So far other items in respect of which learned counsel for the insurance company has vehemently urged, for example, some allowance paid to the children, and Patricia Mahajan under the social security system no co-relation of those receipts with the accidental death has been shown much less established. Apart from the fact that contribution comes from different sources for constituting the fund out M.A.C.A.No.2095 of 2013 10 of which, payment on account of social security system is made one of the constituents of fund is tax which is deducted from income for the purpose. We feel that the High Court has rightly disallowed any deduction on account of receipts under the insurance policy and other receipts under social security system which the claimant would have also otherwise entitled to receive irrespective of accidental death of Dr. Mahajan. If the proposition 'receipts from whatever source' is interpreted so widely that it may cover all the receipts, which may come into the hands of the claimants, in view of the mere death of the victim, it would only defeat the purpose of the Act providing for just compensation on account of accidental death. Such gains may be on account of savings or other investments, etc., made by the deceased would not go to the benefit of wrongdoer and the claimant should not be left worse of, if he had never taken an insurance policy or had not made investments for future returns."

(underline supplied)

8. The learned counsel for the insurance company submitted a scanning of the aforesaid decision, more M.A.C.A.No.2095 of 2013 11 particularly the above extracted paragraph would reveal that the Hon'ble Apex Court had not laid down an inviolable position that at all receipts including reimbursement of expenses could not be deducted despite the amount received and the amount claimed got co-relation.

9. We are of the considered view that it would be a misconception of the ratio therein if it is taken that the Hon'ble Apex Court has laid down a dictum that at no circumstances any amount received by the claimants in relation to an accidental death could be deducted while assessing compensation payable in a claim made under the provisions of the Motor Vehicles Act. True that the Hon'ble Apex Court held that the amounts received towards social security benefits could not be deducted. Certainly, in such circumstances, family pension, provident fund, gratuity etc, if obtained by the claimant dependents pursuant to the death of the victim who was an employee they could not be deducted from the compensation to which they are entitled M.A.C.A.No.2095 of 2013 12 in a claim made under the provisions of the Motor Vehicles Act. Certainly, such service benefits payable by way of social security benefits would be payable to the widow or to the statutorily eligible person even in case of a natural death of the employee concerned subject to the service conditions. But the position is bound to be different in relation to reimbursement of pecuniary losses occasioned due to the medical treatment of the injuries sustained in a motor vehicle accident which may or may not result in death of the victim. If there is some co-relation between the amount received and the amount claimed if they are in the same sphere, the amount received from other sources has to be reckoned and deducted while computing compensation. A careful scanning of the decision in Patricia's case would thus reveal that it is to the effect that if there is co-relation between the amount received and the accidental death or if they are in the same sphere the amount received from other sources could be deducted M.A.C.A.No.2095 of 2013 13 from the amount of compensation. In short, what is deductible in such circumstances is the amount to the extent received, from the amount payable as compensation if both are in the same sphere. In this context a decision of this court in Akber Badsha's case (supra) also has to be looked into. As in this case, in Akber Badsha's case also the question was whether the treatment expenses satisfied by availing mediclaim policy could be reckoned while fixing the quantum of compensation payable in a claim made under the provisions of the Motor Vehicles Act. In other words whether the said amount could be deducted while granting the amount towards medical expenses incurred in connection with the treatment of injuries resulted in accidental death. Evidently, the Division Bench considered the said question after referring to the decision of the Hon'ble Apex Court in Patricia's case (supra), in Helen's case (supra) and also the decision of a Full Bench of Madhya Pradesh in Kashiram Mathur's case (supra). M.A.C.A.No.2095 of 2013 14 After referring to those decisions the Division Bench held that in respect of such expenses incurred in connection with treatment of injuries sustained in a particular motor vehicle accident the claimants could not be permitted to claim compensation both under the mediclaim policy as also in a claim petition filed under the provisions of the Motor Vehicles Act. In other words, it was held that if the claimants got reimbursed the expenses incurred by them in connection with the treatment pursuant to the sustainment of the injuries in a particular accident occurred to the person concerned belonging to their family for which they filed application for compensation under the mediclaim policy they could not be permitted to get double payment by raising the same claim in the claim petition under the Motor Vehicles Act. A perusal of the decision of the Division Bench in Akber Badsha's case (supra) would reveal that while arriving at such a conclusion the Division Bench referred to a decision of a Division Bench of the High court M.A.C.A.No.2095 of 2013 15 of Karnataka in New India Assurance Co. Ltd. v. Manish Gupta [2013 (1) Karnataka Law Journal 624] as well. Virtually in that case the Division Bench of Karnataka High Court held that the concept of insurance could not be extended to enable a person to have unlawful enrichment. Indisputably, the amount of Rs.5,01,927/- incurred by the appellants which was later received by them under the mediclaim policy.

10. In the light of the decision in Patricia's case, the question to be considered is whether there is co-relation between the amount received viz., Rs.5,01,927/- and the accidental death so as to effect deduction of the aforesaid amount from the amount of compensation payable in the claim made under the M.V.Act. It is not disputed before us that the said amount had been incurred towards medical expenses of deceased James Joseph for the injuries sustained by him in the accident that occurred on 20.12.2009 to which he succumbed later. In other words, M.A.C.A.No.2095 of 2013 16 they received Rs.5,01,927/- towards reimbursement of the treatment expenses incurred by them in respect of the very same injuries sustained by the deceased in the accident in question and now, it again formed part of the claim towards medical expenses made as per the claim petition which culminated in the impugned award. In such circumstances, it can only be held that there is co-relation between the amount received and the accidental death and in fact, the amount received and the amount claimed under the head 'medical expenses' pertains to the expenses incurred for treatment of the very same injuries sustained in the very same accident in which he lost his life. Therefore, the action on the part of the Tribunal in effecting deduction of the aforesaid amount while granting compensation towards medical expenses as per the impugned award taking note of Ext.P6 series of bills can only be said to be legal and correct and it warrants no interference. Certainly, as held by the Karnataka High Court, concept of insurance could not be M.A.C.A.No.2095 of 2013 17 and should not be stretched to give unlawful enrichment to a person. Accordingly, we confirm the said finding.

11. Now, what survives for consideration is whether the appellants are entitled to get enhanced compensation under the heads 'pain and suffering', 'loss of consortium' and 'funeral expenses'. Firstly, we will consider whether the appellants are entitled to get any amount under the head 'pain and suffering'. The accident in question occurred on 20.12.2009 and deceased James Joseph succumbed to the injuries sustained in the accident on 11.3.2010. In other words, evidently, he was in agony and anguish for a considerably long period of 81 days. Evidently, James Joseph was brought to hospital in conscious stage and he remained as such till he succumbed to the injuries. In such circumstances, there is absolutely no justification for the total denial of compensation under that head. We are of the view that it is only just and proper to grant an amount Rs.40,000/- towards pain and suffering. M.A.C.A.No.2095 of 2013 18 Accordingly, it is granted. The learned counsel for the appellant further contended that in the light of the decision of the Hon'ble Apex Court in Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54], the amount granted by the Tribunal under the heads of 'loss of consortium' and 'funeral expenses' is too inadequate. In the decision in Rajesh's case, the Apex Court held that in the absence of evidence for higher expenses, at least an amount of Rs.25,000/- shall be granted towards funeral expenses in a claim for compensation for death filed under section 166 of the M.V.Act. No evidence whatsoever has been produced by the appellants to show that they had incurred expenses more than Rs.25,000/-. In such circumstances, we are inclined to grant an amount of Rs.21000/- additionally under that head. Going by the said decision, at least an amount of Rs.1,00,000/- has to be granted under the head 'loss of consortium' to the surviving spouse in a claim for compensation for death of his/her spouse filed under section M.A.C.A.No.2095 of 2013 19 166 of the M.V.Act.. The Tribunal granted only an amount of Rs.7,000/- under that head. In the light of the dictum laid down by the Apex Court in Rajesh's case, we are of the view that the first appellant who is the widow is entitled to get an amount of Rs.93,000/-additionally under that head. In the light of the assessment/enhancement made by us, the appellants are entitled to get an amount of Rs.1,54,000/- over and above the amount granted under the impugned award. The said enhanced amount will carry interest @ 8% from the date of the petition till realisation. It is made clear that the first appellant alone will be entitled to get the enhanced amount of compensation under the head 'loss of consortium' and the interest thereon. The balance amount along with interest shall be equally apportioned between the appellants. The third respondent is directed to deposit the said additional compensation along with interest within a period of two months from the date of receipt of a copy of this judgment failing which the amount remaining to be M.A.C.A.No.2095 of 2013 20 paid will carry interest @ 9% from the date of the petition.

There will be no order as to costs.

Sd/-

C.T. RAVIKUMAR JUDGE Sd/-

K.P. JYOTHINDRANATH JUDGE //True copy// P.A. TO JUDGE spc/shg

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