Karnataka High Court
Sri Milind Kunale vs M/S United India Insurance Co. Ltd on 25 April, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2024:KHC:16835
MFA No. 894 of 2020
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.894 OF 2020 (MV-I)
BETWEEN:
SRI MILIND KUNALE
S/O.SRI SUNILDATT KUNALE
AGED ABOUT 20 YEARS
R/AT NO.713
GENESIS ECOSPHERE APARTMENT
NEELADRI MAIN ROAD
NEAR WIPRO GATE NO.16
ELECTRONIC CITY, PHASE-1
BENGALURU -560 100
...APPELLANT
(BY SRI A.K.BHAT FOR SRI B.C.THIPPESWAMY, ADVOCATES)
AND:
1. M/S.UNITED INDIA INSURANCE
COMPANY LIMITED
REGIONAL OFFICE NO.L-143/144
CKN CHAMBERS, 1ST FLOOR
1ST MAIN, SHESHADRIPURAM
BENGALURU-560 020
Digitally
signed by B (POLICY NO.0704033117P108271436
LAVANYA VALID FROM 13-09-2017 TO 12-09-2018)
Location:
HIGH 2. MRS.SOWBHAGYA
COURT OF W/O.CHELUVARAJU
KARNATAKA
AGED ABOUT 40 YEARS
NO.108, MAILASANDRA VILLAGE
BEGUR HOBLI
BENGALURU-560 068
...RESPONDENTS
(BY SRI A.M.VENKATESH FOR
SMT.MANJULA N.TEJASWI, ADVOCATES FOR R-1;
NOTICE TO R-2 IS DISPENSED V/O.DATED 28.10.2022)
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MFA No. 894 of 2020
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE
JUDGMENT AND AWARD DATED 05.09.2019 PASSED IN MVC
NO.698/2018 BY VII ADDITIONAL SENIOR CIVIL JUDGE AND
ACMM, MEMBER, MACT-3, BENGALURU.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the appellant-claimant challenging the judgment and award dated 05.09.2019 passed in MVC.No.698/2018 by the Court of VII Additional Small Causes Judge and ACMM, Member, MACT-3, Bengaluru (for short 'the tribunal'). The appeal is preferred on the premise of inadequate and meager compensation awarded by the tribunal.
2. Parties to the appeal shall be referred to as per their status before the tribunal.
3. Brief facts of the case are as under:
On 18.11.2017 at about 5.15 p.m., the claimant was riding a scooter bearing registration No.KA-51-EW-4825 on Neeladri-Bettadasanapura Road near Andhra Bank and -3- NC: 2024:KHC:16835 MFA No. 894 of 2020 at that time, the driver of the Water Tanker bearing registration No.KA-51-B-9388 came from opposite direction and dashed against the right side of the vehicle of the claimant. Due to which, he fell down and sustained grievous injuries. He was immediately shifted to Sparsh Hospital, wherein he was treated as an inpatient and he was diagnosed with Traumatic acute right temporal EDH and Bilateral high condyle fracture.
3.1 It is stated that the claimant was studying in I year ISC at Christ Academy and due to the said impact of accident and injuries sustained, he could not continue his education. Hence, he filed a claim petition seeking compensation.
3.2 On service of notice, respondents filed their separate written statements denying the claim of the claimant including the age, avocation, income and the liability/negligence attributed against the driver of the water tanker. It is further pleaded that the claimant himself was negligent, as he was not wearing helmet and -4- NC: 2024:KHC:16835 MFA No. 894 of 2020 he did not possess a valid and effective Driving Licence as on the date of occurrence of accident, so also, there was delay in lodging the complaint. On these grounds, sought for dismissal of the claim petition.
3.3 On the basis of pleadings, the tribunal framed relevant issues for consideration.
3.4 In order to substantiate the issue and to establish the case, the claimant got examined a witness as PW.1 and the Doctor as PW.2 and got marked documents from Exs.P1 to P17. On the contrary, the respondents neither got examined any witness nor got marked any document.
3.5 On the basis of material evidence produced by the parties, the tribunal awarded the compensation of Rs.40,000/- with interest @ 8% p.a. 3.6 Being aggrieved by the meager compensation amount awarded by the tribunal, the claimant is before this Court seeking enhancement of compensation.-5-
NC: 2024:KHC:16835 MFA No. 894 of 2020
4. It is the vehement contention of learned counsel for appellant-claimant that the claimant had obtained a Mediclaim Health Insurance Policy Scheme from Star Health & Allied Insurance Company Limited, which is on the basis of contractual obligation, whereas, the accident had occurred due to the negligence of the driver of the offending vehicle, the respondent-Insurance Company is liable to pay compensation, which is statutory in nature. Therefore, he contends that these are two different aspects as one is contractual and other is statutory.
4.1 The moot contention of learned counsel for appellant-claimant is as to whether the tribunal has ignored and refused to acknowledge the amount of Rs.3,60,000/- liable to be paid by the Insurance Company solely on the ground of said amount has already been disbursed and deposited in favour of the claimant under the Mediclaim Health Insurance Policy Scheme by the Star Health & Allied Insurance Company Limited. Therefore, he contends that the tribunal has committed a serious error -6- NC: 2024:KHC:16835 MFA No. 894 of 2020 in not granting this amount, which the claimant is entitled to, as he had invested certain premium amount on a contractual basis with the Health Insurance Company wisely and by making a fore thought and the same cannot be taken advantage by the respondent-Insurance Company for the negligence of the driver of the offending vehicle in occurrence of accident.
4.2 It is further contention of learned counsel for appellant that the Hon'ble Apex Court and the High Court have held in several cases that when the claimant has wisely invested upon in a health policy, the said amount will have to be compensated by the Insurance Company as statutory liability and the respondent-Insurance Company in this case cannot take advantage of wrong doing of the driver of the offending vehicle by taking shelter under the health insurance reimbursed, which is contractual in nature. Under these circumstances, he contends that the judgment and award rendered by the tribunal is flawed and the same requires to be set-aside and the -7- NC: 2024:KHC:16835 MFA No. 894 of 2020 compensation would have to be enhanced by granting the amount, which was reimbursed to the claimant by way of health insurance policy.
4.3 Learned counsel for appellant-claimant has relied on the following decisions in support of his case:
1. Sebastiani Lakra and Ors. v. National Insurance Company Ltd and Anr. reported in AIR 2018 SC 5034;
2. Economic Transport Organisation v. Charan Spinning Mills (P) Ltd. reported in 2010 ACJ 2288;
3. M/s.ICICI Lombard General Insurance Company Ltd., v. Sundar M. @ Sundar Muthu and another [MFA.NO.66/2018, Decided on 14.07.2023];
4. Shaheed Ahmed vs. Shankaranarayana Bhat & Anr. reported in ILR 2008 KAR 3277;
5. Narasimhasetty vs. Padmasetty reported in ILR 1998 KAR 3230;
5. Per contra, learned counsel for respondent- Insurance Company vehemently contends that the tribunal has passed a well reasoned and considered judgment and -8- NC: 2024:KHC:16835 MFA No. 894 of 2020 award and she sustains the same. She further contends that the tribunal has taken note of the amount of Rs.3,60,000/- reimbursed in favour of the appellant- claimant under the Mediclaim Health Insurance Policy Scheme by the Star Health & Allied Insurance Company Limited taken by the claimant and has rightfully deducted the said amount, as the same cannot be once again compensated in the motor accident cases while awarding just and reasonable compensation.
5.1 It is vehemently contended by learned counsel for respondent-Insurance Company that the very object of the Motor Vehicles Act is for awarding just and reasonable compensation to the victims in the cases of injury and death caused in the Road Traffic Accident for the loss suffered by them. It is also contended that while awarding such compensation, it should not be granted high and excessive for the luxury of the claimant. Therefore, it is the contention of learned counsel for respondent- Insurance Company that in the present case, the tribunal -9- NC: 2024:KHC:16835 MFA No. 894 of 2020 has considered all these aspects and the clear admission made by the claimant that he has received the reimbursement of Rs.3,60,000/- under the Mediclaim Health Insurance Policy Scheme by the Star Health & Allied Insurance Company Limited, has deducted the said amount and awarded the just and reasonable compensation, which does not call for interference at the hands of this Court.
5.2 Learned counsel for respondent-Insurance Company has relied on the following decisions in support of her case:
1. Helen C. Rebello v. Maharashtra S.R.T.C. reported in (1991)1 SCC 90;
2. Reliance General Insurance Co. Ltd. v. Shashi Sharma reported in (2016)9 SCC 627;
3. Binup Kumar R. v. Prabhakar H.G. reported in 2010 ACJ 2742;
4. New India Assurance Co. Ltd. v. Manish Gupta reported in 2013 ACJ 2478;
5. M/s New India Assurance Company Ltd., v.
Sri Gopalakrishna Naik and Others
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NC: 2024:KHC:16835
MFA No. 894 of 2020
[MFA.No.8894/2009 C/w MFA.CROB.No.
90/2010, Decided on 25.11.2021];
6. Krishna & Ors. Vs. Tek Chand & Ors. [Spl.Leave Petition (C) No.5044/2019, Decided on 05.02.2024];
7. Manager, Tata AIG General Ins. Co. Ltd. v. Kathamuthu reported in 2023 ACJ 1075;
8. United India Insurance Co. Ltd. v. Patricia Jean Mahajan reported in (2002)6 SCC 281;
6. Having heard learned counsels for appellant- claimant and respondent-Insurance Company and perused the impugned judgment and award, the points that would arise for consideration are:
"i) Whether the amount of Rs.3,60,000/-
expended by the claimant towards medical expenses, which has already been reimbursed in favour of the claimant the Mediclaim Health Insurance Policy Scheme by the Star Health & Allied Insurance Company Limited, has to be now awarded in favour of the claimant?
ii) Whether the claimant is entitled to enhancement of compensation?"
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NC: 2024:KHC:16835 MFA No. 894 of 2020
7. The Police records at Exs.P1 to P7 clearly depict filing of FIR and laying of chargesheet against the driver of the water tanker, which is not disputed or questioned. Hence, the negligence is rightly attributed as against the driver of the offending vehicle. Consequently, the vicarious liability is on the owner of the offending vehicle and policy being in force, the Insurance Company was fixed with the liability to deposit the compensation amount.
8. It is the contention of learned counsel for appellant-claimant that the claimant has spent for about Rs.3,60,000/- towards medical treatment and the medical bills to that extent are produced at Ex.P11, which has been reimbursed to him under the Mediclaim Health Insurance Policy Scheme by the Star Health & Allied Insurance Company Limited. But, he contends that though this amount is reimbursed under Health Insurance Policy Scheme, the respondent-tortfeasor cannot take advantage of the claimant's wise decisions and fore thought of investing on Mediclaim Policy by paying premium.
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NC: 2024:KHC:16835 MFA No. 894 of 2020 Therefore, even if the amount of Rs.3,60,000/- has been reimbursed by the Health Insurance Company, which is other than the Insurance Company, the same would have to be reimbursed to the claimant.
9. Having heard learned counsels extensively on this aspect and having gone through several judgments relied on by learned counsels on both sides, it is necessary to extract the gist of each of the decisions to arrive at a conclusion in this case. The facts are not in dispute with regard to occurrence of accident, involvement of vehicle and the injuries sustained by the claimant.
10. The Hon'ble Apex Court, in the case of Reliance General Insurance Co. Ltd. as stated supra, has dealt with meaning and origin of the word "just", so also, "compensation". The word "just" means-fair, adequate and reasonable. It has been derived from the Latin word "Justus", connoting right and fair. The expression "just" denotes that the amount must be equitable, fair, reasonable and not arbitrary. The compensation "is not
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NC: 2024:KHC:16835 MFA No. 894 of 2020 intended to be a bonanza, largesse or source of profit". The Hon'ble Apex Court, at paras-17, 18 and 24, has also held as under:
"17. Be that as it may, the term "compensation" has not been defined in the 1988 Act. By interpretative process, it has been understood to mean to recompense the claimants for the possible loss suffered or likely to be suffered due to sudden and untimely death of their family member as a result of motor accident. Two cardinal principles run through the provisions of the Motor Vehicles Act of 1988 in the matter of determination of compensation. Firstly, the measure of compensation must be just and adequate; and secondly, no double benefit should be passed on to the claimants in the matter of award of compensation. Section 168 of the 1988 Act makes the first principle explicit. Sub-section (1) of that provision makes it clear that the amount of compensation must be just. The word "just"
means─fair, adequate, and reasonable. It has been derived from the Latin word "justus", connoting right and fair. In para 7 of State of Haryana v. Jasbir Kaur, it has been held that the expression "just" denotes that the amount must be equitable, fair, reasonable and not arbitrary. In para 16 of Sarla Verma v. DTC, this Court has observed that
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NC: 2024:KHC:16835 MFA No. 894 of 2020 the compensation "is not intended to be a bonanza, largesse or source of profit". That, however, may depend upon the facts and circumstances of each case, as to what amount would be a just compensation.
18. The principle discernible from the exposition in Helen C. Rebello case is that if the amount "would be due to the dependants of the deceased even otherwise", the same shall not be deductible from the compensation amount payable under the 1988 Act. At the same time, it must be borne in mind that loss of income is a significant head under which compensation is claimed in terms of the 1988 Act. The component of quantum of "loss of income", inter alia, can be "pay and wages"
which otherwise would have been earned by the deceased employee if he had survived the injury caused to him due to motor accident. If the dependants of the deceased employee, however, were to be compensated by the employer in that behalf, as is predicated by the 2006 Rules─to grant compassionate assistance by way of ex gratia financial assistance on compassionate grounds to the dependants of the deceased government employee who dies in harness, it is unfathomable that the dependants can still be permitted to claim the same amount as a possible or likely loss of
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NC: 2024:KHC:16835 MFA No. 894 of 2020 income to be suffered by them to maintain a claim for compensation under the 1988 Act.
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24. Rule 5 broadly deals with two aspects. Firstly, to compensate the dependants of the deceased government employee by granting ex gratia financial assistance on compassionate grounds for the loss of pay and other allowances for a specific period. The second part of Rule 5 is to compensate the dependants of the deceased government employee by way of allowances and concessions─of retaining occupation of the government residence on specified terms, of family pension and other allowance. As regard the second part, it deals with income from other source which any way is receivable by the dependants of the deceased government employee. That cannot be deducted from the claim amount for determination of a just compensation under the 1988 Act."
11. The Hon'ble Apex Court, in the case of United India Insurance Co. Ltd. as stated supra at para-36, has held as under:
"36. We are in full agreement with the observations made in the case of Helen Rebello that principle of balancing between losses and
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NC: 2024:KHC:16835 MFA No. 894 of 2020 gains, by reason of death, to arrive at the amount of compensation is a general rule, but what is more important is that such receipts by the claimants must have some correlation 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 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 the amount on account of social security as may have been received must have a nexus or relation with the accidental injury or death, so far to be deductible from the amount of compensation. There must be some correlation between the amount received and the accidental death or it may be in the same sphere, absence (sic) 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 premature death of the insured. So far as other items in respect of which learned counsel for the Insurance Company has vehemently urged, for example some allowance paid to the children, and Mrs Patricia Mahajan under the social security
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NC: 2024:KHC:16835 MFA No. 894 of 2020 system, no correlation 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 of which payment on account of social security system is made, one of the constituents of the 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 the social security system which the claimant would have also otherwise been 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, maybe on account of savings or other investment etc. made by the deceased, would not go to the benefit of the wrongdoer and the claimant should not be left worse off, if he had never taken an insurance policy or had not made investments for future returns."
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12. In the case of Krishna as stated supra, the Hon'ble Apex Court, on 05.02.2024 at para-6, has held as under:
"6. We find that the observations of this Court in Sebstiani Lakra (supra) distinguishing the case of Shashi Sharma (supra) clearly applies to the case in hand. It is observed that the amount of Rs.31,37,665/- (Rupees Third One Lakhs, Thirty Seven Thousand and Six Hundred and Sixty Five only) was paid to the dependents of the deceased-
employee who are the petitioners herein under the aforesaid Rules since the said Rule was by way of compassionate assistance owing to the sudden death of the employee in harness for any reason whatsoever including as a result of a road traffic accident. This is in order to compensate the loss of the bread earner of the family who dies in harness. In the case of a motor vehicle accidents, when negligence is proved, loss of dependency is compensated for the very same reason. In our view, there cannot be a duplication in payments or a windfall owing to a misfortune. In another words, on the death of the person in harness, owing to a road traffic accident the dependents of a deceased cannot be doubly benefited as opposed to those who are dependents of a deceased who dies owing
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NC: 2024:KHC:16835 MFA No. 894 of 2020 to illness or any other reason under the Rules formulated by the Haryana Government."
13. The Division Bench of this Court, in the case of New India Assurance Co. Ltd. v. Manish Gupta as stated supra, has held at paras-16, 17 and 22 as under:
"16. A learned single Judge of this court in the case of Binup Kumar R. v. Prabhakar H.G., 2010 ACJ 2742 (Karnataka), was of the view that the claimants cannot get the benefit both under the mediclaim policy as well as under the Act. Learned single Judge has also drawn an analogy in the case of a government servant inasmuch as whatever the amount a government servant gets reimbursed from his employer, the said amount will be deducted from out of the total amount arrived at by the Tribunal and the balance will have to be paid to him. On the same lines, whatever the amount the claimant gets from any scheme like mediclaim, etc., the said amount will have to be deducted from the actual amount payable to the claimant.
17. In so far as the two decisions on which the claimants would place reliance are concerned, the Full Bench ruling of Madhya Pradesh High Court in the case of Kashiram Mathur v. Rajendra Singh, 1983 ACJ 152 (MP), has opined that there shall not be any deductions in respect of the amount, which
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NC: 2024:KHC:16835 MFA No. 894 of 2020 is received under: (1) life insurance policy; (2) provident fund; (3) family pension; (4) gratuity. Insofar as the ex gratia payment is concerned, the Full Bench of Madhya Pradesh High Court was of the view that it is deductible from the amount of compensation. Madhya Pradesh High Court was of the view that amount, which is receivable by the claimants under the life insurance policy, cannot be deducted for the reason that the said amount of insurance is under a contract and for which deceased had paid premiums. The receipt of such amount is not deductible from the damages payable to them. The deceased had not insured himself and paid premiums all the year during his lifetime for the benefit of the tortfeasor. This sum represents his thrift for his own benefit and for the benefit of his family. Thus, the tortfeasor could not seek advantage out of this receipt.
Provident fund constitutes that which the deceased had himself deposited out of his salary for the rainy day. This amount was payable to him and the family would have been benefited even if the deceased were alive. This amount was not an advantage by reason of his death. The principle as applicable in case of insurance amount will apply to payment of provident fund and this sum is not deductible from compensation.
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NC: 2024:KHC:16835 MFA No. 894 of 2020 Gratuity under the conditions of service was the right of the deceased employee after completing certain years of service and if he survived, he would have received the same and his dependants would have taken advantage hereof. Payment of gratuity was not necessarily consequential to his death but was otherwise also payable to him and, therefore, this sum is also not deductible from compensation.
A family pension is payable on the basis of the contribution made by the employee in some form or other or it may be entirely paid by the employer. If the pension is non-contributory, i.e., paid by the employer on his own, a deduction could be made only if the Tribunal has considered all the probable benefits available to the deceased in his full span of life while determining the amount of compensation, i.e., probable increments to the deceased in salary and dearness allowances, prospects of his possibility of useful employment on retirement, then deduction on account of family pension paid to the claimants can be made. But however, otherwise, the family pension is not deductible. We are in respectful agreement with the opinion rendered by the Full Bench.
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22. In the case on hand, the facts are almost similar. It is not in dispute that in all the claim
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NC: 2024:KHC:16835 MFA No. 894 of 2020 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 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, are classified as a pecuniary loss. Pecuniary loss in its context means the actual amount which is expended by 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 of the very same purpose, which is inclusive of the expenses, which are incurred by him for hospitalisation and for his treatment, does not arise. Undoubtedly, if the amount which is received by the claimant under the mediclaim policy falls 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 Helen C. Rebello's case, 1999 ACJ 10 (SC), was in respect of the life insurance policy and not in respect of a mediclaim policy and, therefore, the said decision is distinguishable."
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14. Learned counsel for appellant-claimant has extensively relied on the decision in the case of Sebastiani Lakra as stated supra, wherein the Hon'ble Apex Court has held at para-13 as under:
"13. As far as any amount paid under any insurance policy is concerned whatever is added to the estate of the deceased or his dependents 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."
15. Learned counsel for appellant-claimant also relies on the decision in the case of Economic Transport Organisation as stated supra, which is a Constitutional
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NC: 2024:KHC:16835 MFA No. 894 of 2020 Bench decision of the Hon'ble Apex Court, wherein the case filed pertains to the Carriers Act on a complaint lodged by one of the consumers and the subrogation made by the Insurance Company for the consignment and its damage in transit and he contends that what is stated by the Hon'ble Apex Court at para-10 of the said judgment be applicable to the present facts of the case, which reads as under:
"10. The assured entrusted the consignment for transportation to the carrier. The consignment was insured by the assured with the insurer. When the goods were damaged in an accident, the assured, as the consignor consumer, could certainly maintain a complaint under the Act, seeking compensation for the loss, alleging negligence and deficiency in service. The fact that in pursuance of a contract of insurance, the assured had received from the insurer, the value of the goods lost, either fully or in part, does not erase or reduce the liability of the wrongdoer responsible for the loss. Therefore, the assured as a consumer, could file a complaint under the Act, even after the insurer had settled its claim in regard to the loss."
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16. Apart from the aforementioned two decisions, learned counsel for appellant-claimant has also relied on the other decisions as stated supra, to primarily contend that, any amount i.e. awarded under the contractual obligation cannot be deducted under the statutory obligation. Therefore, he contends that the claimant while contributing to the premium under the Health Insurance Policy Scheme every year, which is a contractual obligation, he would have made a wise forethought that in case of any eventuality, he would get financial assistance under the Mediclaim Health Insurance Policy Scheme, which cannot be deducted from the statutory authority for the gross negligence of others in the occurrence of a road traffic accident. For the sake of repetition, it is contended by learned counsel for appellant-claimant that the tortfeasor in whatever circumstances cannot take advantage of the foresightedness and wise financial investment made by the deceased or by the injured and that the fruits of the premium paid in the past should not
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NC: 2024:KHC:16835 MFA No. 894 of 2020 be given to the benefit of the wrong doer by deducting the same out of the damages assessed.
17. On careful perusal of these voluminous decisions relied upon by learned counsels for both parties, it is seen that no doubt, the claimant has wisely invested in the Mediclaim Health Insurance Policy Scheme for addressing any of the eventualities, but unfortunately, he met with an accident and suffered injuries, due to which, he was treated in the Hospital for the injuries expending financial expenditure, underwent pain, trauma and suffering. The tribunal has dealt with the aspect of compensation under other heads. But, taking note of the clear admission made by the appellant-claimant that he has been reimbursed Rs.3,60,000/- under the Mediclaim Health Insurance Policy Scheme by the other Insurance Company, the tribunal felt it appropriate to deduct the said amount of Rs.3,60,000/- from the entire compensation and awarded Rs.40,000/- as a total compensation. The tribunal came to the conclusion that since the amount has already been reimbursed, the
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NC: 2024:KHC:16835 MFA No. 894 of 2020 claimant would not be entitled to the said amount which has been admittedly paid by the other Insurance Company.
18. On careful examination of all these aspects of contractual and statutory liability, admission made by the appellant-claimant with regard to reimbursement of the amount expended towards medical treatment and the applicability of decisions relied on by learned counsels for parties, this Court is of the opinion that the fundamental rule of law is that no person can be compensated twice for the same amount of compensation. Therefore, even in the decision relied upon by learned counsel for appellant- claimant in the case of Sebastiani Lakra as stated supra, the Hon'ble Apex Court at para-16 has held as under:
"16. Deduction can be ordered only where the tortfeasor satisfies the court that the amount has accrued to the claimants only on account of death of the deceased in a motor vehicle accident."
19. Under the circumstances, if any amount is accrued to the injured person or on the death of an
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NC: 2024:KHC:16835 MFA No. 894 of 2020 insured, which is a static amount and the same would come even otherwise than the Mediclaim Health Insurance Policy being enforced, then the said amount cannot be deducted. But when the Mediclaim Health Insurance Policy Scheme reimburses the amount, the same amount cannot be once again awarded to the claimant, which would amount to double benefit to the claimant.
20. The Division Bench of this Court in the case of New India Assurance Co. Ltd. v. Manish Gupta as stated supra, has dealt with the similar situation at para- 22 of its judgment, which is extracted hereinabove. Therefore, this Court is of the opinion that the reimbursement received by the claimant to an extent of Rs.3,60,000/- expended towards medical treatment under the Mediclaim Health Insurance Policy Scheme by the Star Health & Allied Insurance Company Limited cannot be ordered to be once again paid by the respondent- Insurance Company, as the same would amount to double benefit. This would be the appropriate method to be
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NC: 2024:KHC:16835 MFA No. 894 of 2020 followed for the reason that the Motor Vehicles Act has come into force as a Welfare Legislation to see that just and reasonable compensation is paid. The just and reasonable compensation cannot be double benefit for one and deprivation to the other and so also, it cannot be a bonanza, largesse or source of profit as held by the Hon'ble Apex Court. If the claimant had not received the benefit from the Mediclaim Health Insurance Policy Scheme, then he would have been certainly entitled to the said amount. However, nothing is forthcoming in the judgment of the tribunal or any evidence as to what is the premium paid by the claimant. Hence, this Court cannot award any such premium as well.
21. Coming to the aspect of compensation under other heads, it is seen that the claimant sustained injuries, but the tribunal has not awarded suitable compensation under other heads like pain and suffering, loss of amenities and loss of income during laid up period.
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22. The claimant sustained two grievous injuries as stated in the wound certificate. Therefore, this Court deems it appropriate to award Rs.50,000/- towards pain and suffering, Rs.50,000/- towards loss of amenities.
23. The claimant was inpatient for 5 days. Therefore, this Court deems it appropriate to award Rs.5,000/- towards food, nourishment and attendant charges.
24. Considering the fact that the parent of the claimant, who was minor at the time of occurrence of accident and assessing one month income of Rs.11,000/- on the basis of the notional income for the accident of year 2017, this Court deems it appropriate to award Rs.11,000/- towards loss of income during laid up period.
25. In view of the above, the claimant would be entitled to a total compensation of Rs.1,16,000/- as against Rs.40,000/- as mentioned in the table below:
Heads Amount in Rs.
Pain and suffering 50,000-00
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NC: 2024:KHC:16835
MFA No. 894 of 2020
Loss of amenities 50,000-00
Food, nourishment and attendant 5,000-00
charges
Loss of income during laid up period 11,000-00
TOTAL 1,16,000-00
26. Accordingly, I pass the following:
ORDER
i) The appeal is allowed-in-part;
ii) The judgment and award dated 05.09.2019 passed in MVC.No.698/2018 by the Court of VII Additional Small Causes Judge and ACMM, Member, MACT-3, Bengaluru, is modified;
iii) The claimant is entitled to a total compensation of Rs.1,16,000/- as against Rs.40,000/- along with interest @ 8% awarded by the tribunal;
iv) The enhanced compensation amount shall be paid with interest @ 6% p.a. by respondent No.1-Insurance Company within a period of four weeks from the date of receipt of a copy of this order;
v) It is made clear that the appellant-claimant is not entitled for the amount of Rs.3,60,000/-
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NC: 2024:KHC:16835 MFA No. 894 of 2020 expended towards medical treatment, which has already been reimbursed under the Mediclaim Health Insurance Policy Scheme by the Star Health & Allied Insurance Company Limited, for the aforementioned reasons;
vi) All other terms and conditions stipulated by the tribunal shall stand intact.
Sd/-
JUDGE LB List No.: 1 Sl No.: 75