Gujarat High Court
The New India Assurance Company Limited vs Minaben Rajendrabhai Chopra on 1 May, 2025
NEUTRAL CITATION
C/FA/2125/2023 ORDER DATED: 01/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2125 of 2023
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2023
In R/FIRST APPEAL NO. 2125 of 2023
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THE NEW INDIA ASSURANCE COMPANY LIMITED
Versus
MINABEN RAJENDRABHAI CHOPRA & ORS.
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Appearance:
MS ESHA BHAVSAR for MR RATHIN P RAVAL(5013) for the Appellant(s)
No. 1
MR DHAIRYAWAN D BHATT(11817) for the Defendant(s) No. 1,2,3,4
RULE SERVED for the Defendant(s) No. 5,6
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 01/05/2025
ORAL ORDER
1. Heard learned advocate Ms. Esha Bhavsar for learned advocate Mr. Rathin Raval for the appellant and learned advocate Mr. D. D. Bhatt for respondent Nos.1 to 4. Though Rule served, none appeared for respondent Nos.5 and 6. Perused the record.
2. The challenge in the present appeal is by the appellant -
Insurance Company challenging the judgment and award dated 17.11.2022 passed by learned Motor Accident Claims Tribunal (Auxi.), Gandhidham @ Kutch in M.A.C.P. Page 1 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Wed May 07 22:05:27 IST 2025 NEUTRAL CITATION C/FA/2125/2023 ORDER DATED: 01/05/2025 undefined No.160 of 2017.
3. The facts in brief of the case are as under:
* On 10.12.2015, deceased Rajendra Mafatlal Chopra was travelling alongwith his relatives towards Ahmedabad from Palitana in Veto Car No.GJ-12-BF-2574.
When the car reached near Dhingadha village on Dhandhuka - Bagodara Highway, opponent No.1 driver of the Car lost control over steering. Resultantly, the deceased sustained serious injuries and succumbed.
* Claimants being the legal heirs of the deceased filed claim petition for a compensation of Rs.75,00,000/- from the opponents. Opponents were served with summons. Opponent nos.1 and 2 contested the claim petition by filing Written Statement at Exhs.26 and 31 respectively. While opponent No.3 - insurance company also contested the claim petition by filing Written Statement at Exh.22.
* After framing of issues, claimant No.1 - widow Page 2 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Wed May 07 22:05:27 IST 2025 NEUTRAL CITATION C/FA/2125/2023 ORDER DATED: 01/05/2025 undefined of deceased submitted her deposition at Exh.40 and produced FIR, Panchnama, PM report, death summary and other medical bills as well as relevant documents in support of claim petition.
* After considering the evidence, learned Tribunal partly allowed the claim petition by directing opponents to pay an amount of Rs.59,28,599/- to the claimants with interest @ 9% p.a. from the date of application till realisation.
* Being aggrieved and dissatisfied with the impugned judgment and award, the appellant -
insurance company has filed the present appeal.
4. Learned advocate for the appellant - insurance company has submitted that the challenge in the appeal is mainly on two grounds; (1) quantum of compensation and (2) the claimants have received expenses for medical bills under the Mediclaim. An application to produce additional evidence under Order 41 - Rule 27 of the Code of Civil Procedure is also filed by the insurance company. He has Page 3 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Wed May 07 22:05:27 IST 2025 NEUTRAL CITATION C/FA/2125/2023 ORDER DATED: 01/05/2025 undefined submitted that the date of accident is 10.12.2015. The claimants have produced income tax returns of the deceased for the Assessment Years 2014-15 to 2016-17 vide Exhs.52 to 55. It is also contended that the IT return for the year 2016-17 is filed on 31.3.2017 (Exh.55). Since the said IT return is post accident, the same ought not to have been considered by learned tribunal, however, learned tribunal considered Exh.55 and also considered IT returns of 2014-15 and 2015-16 and average income of 3 IT returns, assessed income of deceased @ Rs.36,191,/- which is on the higher side and against the settled principle of law. It is also submitted that at the most, average income of IT returns for the years 2014-15 and 2015-16 be considered. By way of an application under Order 41 - Rule 27 of the Code, it is submitted that the claimant had received an amount from their insurance company for the medical expenses to the tune of Rs.2,59,200/- and, therefore, the claimants are not entitled to the full amount under the head of medical expenses. The amount of Rs.2,59,200/- is required to be deducted from the compensation. No other submissions are made, except the above submissions.
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NEUTRAL CITATION C/FA/2125/2023 ORDER DATED: 01/05/2025 undefined
5. Per contra, learned advocate for respondent - original claimant has supported the judgment and award and submitted that learned Tribunal has rightly considered the evidence on record and awarded just and reasonable compensation. He has submitted that deceased was doing business and earning Rs.60,000/- per month and to substantiate the income, claimants have produced IT returns for the assessment years 2014-15 to 2016-17. The IT return being the statutory document, learned tribunal has rightly considered the average income of the deceased @ Rs.36,191/- per month. Rest of the award passed by the learned Tribunal does not require any interference looking to the facts and circumstances of the case.
6. Learned advocate for the respondent has placed reliance upon the following decisions:
(a) Anjali and others v. Lokendra Rathod reported in 2022 Law Suit (SC) 1438 (Paragraph No.9 was pressed into service) Page 5 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Wed May 07 22:05:27 IST 2025 NEUTRAL CITATION C/FA/2125/2023 ORDER DATED: 01/05/2025 undefined
(b) Malarvizhi and others v. United India Insurance Co. Ltd. reported in 2019 Law Suit (SC) 1968 (Paragraph No.10 was pressed into service).
(c) New India Assurance Co. Ltd. v.
Nipeshbhai Bhagvanjibhai Patel reported in 2024(o) GUJHC 68551 (Paragraph Nos.27 & 29 were pressed into service) &
(d) New India Assurance Co. Ltd. v.
Ashok Nandumal Hardasani @ Mangalani & Others reported in 2024() GUJHC 57473 (Paragraph Nos.3 and 12 to 14 were pressed into service).
7. I have considered the submissions canvassed by learned advocates for the respective parties and perused Record and Proceedings. As per say of claimant, deceased was doing a business of salt trading and was earning Rs.60,000/-. At the time of accident, deceased was aged about 47 years. In support of the contention with regard to income, claimants have relied upon IT returns for the Assessment Years of 2014-15 to 2017-18 (Exhs.53 to 55). Learned tribunal, after taking average of income, assessed income of deceased @ Rs.36,191/-. It is also contended that the last return of year 2016-17 is post accident and cannot be considered for assessing the income. To deal Page 6 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Wed May 07 22:05:27 IST 2025 NEUTRAL CITATION C/FA/2125/2023 ORDER DATED: 01/05/2025 undefined with this contention, I have considered Exhibit 55 which is the income tax return for the assessment year 2016-17. It appears that the date of filing of the return is 31 st March 2017. The date of accident is 10-12-2015. So it appears that after almost a period of 15 months, the income tax return for the assessment year 2016-17 was filed by claimants. The income which is shown in Exhibit 55 is Rs.5,65,546/-. Though the law on the point of considering the income shown in income tax return is well settled, and in catena of decisions, it has been held by Hon'ble the Apex Court that the income tax return is a legal document and the tribunal cannot overlook the income tax return which has been relied upon by the claimants in deciding the income. However, what is material is the date of filing of the income tax return. If the income tax return is filed within a reasonable period of the death of the person, income reflected in the income tax return filed post accident can be considered by learned tribunal, subject to any contrary and clinching evidence led by other side to disbelieve the income mentioned in the income tax return filed post accident.
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8. In the present case, undisputedly, the income tax return is filed after a considerable gap of time that is almost after 15 months. More particularly, if the comparison is made with the income tax return of 2014-15 and 2015-16, the income shown in the return of 2016-17 has increased to a great extent, Rise in the income shown in income tax return of 2016-17 is not only on the upward direction but also there is a spike in the income. There is no explanation forthcoming from the claimant side with regard to gap of filing income tax return for the assessment year 2016-17 from the date of accident.
9. It appears from the Rojkam of MACP reveals that the claim petition filed on 4-9-2017. The decisions which have been relied upon by learned advocate for the respondents- claimants are not useful to the claimants for the reason that in the case of Anjali (Supra), the issue before the Honorable Apex Court was with regard to disregarding income tax return of the deceased for the last year. However, learned advocate for the respondent could not point out from the decision that whether the question of filing income tax return was after the date of accident or Page 8 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Wed May 07 22:05:27 IST 2025 NEUTRAL CITATION C/FA/2125/2023 ORDER DATED: 01/05/2025 undefined before the date of accident. As there is no fact found from reading the same decision, the ratio is not applicable to the facts of the present case.
10. In the case of Malarvizhi (Supra), annual income mentioned in the tax return was not properly appreciated by the learned tribunal and in the same background of facts, Hon'ble Apex Court held that determination of income must proceed on the basis of income tax return. In the present case, the issue is on a footing that whether the annual income reflected in income tax return which is filed post date of accident can be considered for determining the income. Since the issue discussed before the Hon'ble Apex Court in the aforesaid decision is on a different context, the same is not helpful to the case of respondent claimant.
11. Considering the evidence led by claimant before the learned tribunal, it would be just and reasonable to consider the annual income reflected in the income tax return for the assessment years from 2014-15 and 2016- 17 which is Rs.3,75,830/- and Rs.4,36,680/- respectively. Page 9 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Wed May 07 22:05:27 IST 2025
NEUTRAL CITATION C/FA/2125/2023 ORDER DATED: 01/05/2025 undefined The income tax return (Exhibit 55) for the assessment year 2016-17 cannot be considered in the background of the above discussion and the average income from the assessment year 2014-15 and 2015-16 is required to be considered in absence of any other evidence with regard to income. Except the income tax return, claimants could not produce any documentary evidence to substantiate the claim of income at Rs.60,000/- per month. Thus, the income of claimant is assessed at Rs.32,489/- (Rs.3,75,830/- +Rs.4,36,680/- / 12 months respectively).
12. The next question which has been raised by the learned advocate for the appellant with regard to deduction of Mediclaim amount which has been received by the claimant under the said head. So far as the deduction of amount received by the victim under the Mediclaim by the claimant, whether to be deducted from the compensation claimed under the Provisions of Motor Vehicles Act is no more res integra in the decision of Nipeshbhai Bhagvanjibhai Patel (Supra). Hon'ble Division Bench of this Court while discussing the issue, has observed as under:
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NEUTRAL CITATION C/FA/2125/2023 ORDER DATED: 01/05/2025 undefined "27. According to this Court, the Tribunal has committed a gross error of law while not granting such medical expenses to claimants because, it is well settled law that tort feasor cannot get advantage to claim any benefit, which is drawn by claimants under Insurance Policy be it Life or Medi-claim obtained by them by paying insurance premium from their pocket to protect their life/health.
29. We are conscious of the fact that there is no cross-
objection filed by claimants, claiming such amount of medical expenses, which was not granted by Tribunal while awarding compensation. Nonetheless, it has come on record that deceased died during course of treatment on 23.03.2011, then considering her 5 days hospitalization and keeping in mind the principle of just compensation and that the Motor Vehicle Act is a benevolent piece of legislation and this Court having power under Order XLI Rule 33 of Civil Procedure Code to pass appropriate order, considering peculiar facts and circumstances so narrated herein above, we are of the view that claimants would also entitle to receive medical expenses of Rs.2,27,787/- (Exh.37)."
13. In the case of New India Assurance Co. Ltd. v. Ashok Nandumal Hardasani (Supra), the Coordinate Bench of this Court, while deciding the issue of amount received under medical expenses from the insurance company of the victim, can be deducted from the compensation for medical expenses under the claim petitions. The Coordinate Bench has referred the decision of Satishkumar Rasiklal Doctor v. Baldevbhai Chhaganbhai Thakore reported in 2007(1) GCD 727. Paragraph Nos.12 and 13 of New India Assurance Co. Ltd. v. Ashok Nandumal Hardasani are reproduced hereunder:
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NEUTRAL CITATION C/FA/2125/2023 ORDER DATED: 01/05/2025 undefined "12. The second submission on the part of the learned advocate Ms.Lilu Bhaya that learned Tribunal has committed error in drawing compensation for medical expenses despite the claimant has received the amount of medical expenses from the mediclaim is also misconceived argument. This Court in case of Ramanlal Ranchhoddas Shah (supra) has addressed this issue. The prudent act of claimant to purchase mediclaim policy to avail any expenses occurred for medical treatment would not absolve the liability of the tortfeasor from paying compensation for the medical expenses claimant has suffered. Liability of the tortfeasor has to be viewed separately and distinctively. The prudent and rational act of the claimant for covering the risk of medical treatment by purchasing mediclaim policy cannot take away liability of the Insurance Company to pay the compensation under the law of tort. This issue was again discussed by this Court in case of Satishkumar Rasiklal Doctor vs. Baldevbhai Chhaganbhai Thakore - 2007 (1) GCD 727, as under: :
"9. We will now refer to the decisions on the question whether the claimant can be denied compensation for medical expenses and treatment on the ground that such expenses and treatment charges were reimbursed to him under a policy of insurance for which the claimant had already paid the premium.
9.1 In Helen C. Rebellow v. Maharashtra State Road Transport Corporation (para 37) the Apex Court held as under:
37. 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 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 correlation between the two. Similarly, life insurance policy amount 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 contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on Page 12 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Wed May 07 22:05:27 IST 2025 NEUTRAL CITATION C/FA/2125/2023 ORDER DATED: 01/05/2025 undefined insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, 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 correlation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of Motor Vehicles Act to be termed as Specuniary 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 se between them and not to which, there is no semblance of any correlation. The insured (deceased) contributes his own money for which he receives the amount has no correlation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can the 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 receivable under the life insurance policy is contractual.
9.2 The aforesaid view has been reiterated in United India Insurance Co. Ltd. v. Patricia Jean Mahajan :
36. We are in full agreement with the observations made in the case of Helen Rebello that the principle of balancing between losses and 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....
37. We therefore, do not allow any deduction as pressed by the Insurance Company on account of receipts of insurance policy and social security benefits received by the claimants.
9.3 At this stage, it will not be out of place to record that as far as this Court is concerned, a Division Bench of this Court had also enunciated this principle as far back as in the year 1972 in Life Insurance Corporation of India v. Heirs & Legal Representatives of Decd.
Naranbhai Munjabhai Vadhia reported in (1972) 13 GLR 920 in the following terms:
13. Coming now to the question of damages, we have already settled the question as to what is collateral benefit in First Appeal Nos. 159-160 of 1968 decided Page 13 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Wed May 07 22:05:27 IST 2025 NEUTRAL CITATION C/FA/2125/2023 ORDER DATED: 01/05/2025 undefined on November 3, 1971. We have pointed out the legal position as enunciated in the latest decision by the House of Lords in Parry v. Cleaver 1969 (1) AER 555, where it was accepted as a settled principle of common law, which was followed not only in England but in all other common law jurisdiction after Bradburn's case 1874-80 All.E.R. Reprint 195, that insurance policy amounts were collateral benefits which the deceased had bought with his own money. It was a benefit derived by way of prudent savings effected for his own benefit under a contract by the injured party whose benefit could never go to the tortfeasor. It is only a like which can be deducted from the like and, therefore intrinsic nature of the payment must be considered before any such deductions can be made. That is why any pension amount or retirement-cum-gratuity benefit which had the insurance element could never be deducted. It was only that pension which was earned after the contributions had ceased that it assumed the character of wages and which alone could be deducted, when computing the economic loss of future earnings or loss of wages. Therefore, in view of that settled legal position, the learned Tribunal was obviously wrong in excluding the amount of Rs. 2000/- of insurance money and of Rs. 1344/- the amount of death-cum-retirement gratuity which were of the same character as insurance money. These collateral benefits could not be deducted from the compensation amount.
9.4 The aforesaid view was reiterated by another Division Bench in the case of Amthiben Maganlal wd/o. Maganlal Pranlal Mistry v. Superintendent, Geophysicist, ONGC reported in 17 GLR 910 in the following words:
18. Something was urged on the ground that from the insurance the family had received a sum of Rs. 61000/- but evidence was that Rs. 11000 was by way of paid up policy and the rest was insured amount where only one premium was paid by the deceased. Even in this connection the legal position is well settled after our aforesaid decision in LIC v. LR of the deceased Naranbhai 12 GLR 920 at page 937. We have already settled this question by holding that it was a collateral benefit in First Appeal Nos. 159-160 of 1968 decided on November 3, 1971 (Jaipur Golden Transport & Co. Ltd. v. Keshavlal Mangalal and Ors.). There the entire legal position is considered as enunciated in the latest decision by the House of Lords in Parry v. Cleaver 1969 (1) A.E.R. 535, where it was accepted as a settled principle of common law, which was followed not only in England but in all other common law jurisdiction after Bradburn's case 1874-80 All.E.R. Reprint 195, that the insurance policy amounts were collateral benefits which the deceased Page 14 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Wed May 07 22:05:27 IST 2025 NEUTRAL CITATION C/FA/2125/2023 ORDER DATED: 01/05/2025 undefined had bought with his own money. It was a benefit derived by way of prudent savings effected for his own benefit under a contract by the injured party whose benefit could never go to the tort-feasor. It was only a like which can be deducted from the like and, therefore, intrinsic nature of the payment must be considered before any such deductions could be made. Therefore, this collateral benefit could never be deducted from the compensation amount as per the settled legal position.
9.5 In Ramanlal Ranchhoddas Shah v. Asthi Gustadji Rustomji and Ors. (decided on 12th April, 1978) 19 GLR 990 (para 16) also, the claimant had got reimbursement of medical expenses from the Insurance Company for which he had paid premium. A Division Bench of this Court again held as under:
16. Again, this is not a case in which the claimant was entitled to free medical aid by virtue of his employment or some such consideration and that he has been reimbursed on such consideration. This is also not a case in which the Government or some such official agency under the scheme like the National Health Scheme of U.K. Provides free medical aid to the claimant, in which case, different considerations could possibly weigh, though we should not be taken to have expressed a considered opinion on the question. This is a case in which the claimant had joined a scheme of insurance by paying premium and therefore, benefits which he got were ones which he had obtained with his own money and these benefits could never go to a tort-feaser as per the ratio laid down in LIC v. L.R. of deceased Naranbhai 13 GLR 920, to which reference has already been made by the learned Judge in his judgment in para 14; and, in this view of the matter also, the appellant would be entitled to the said amount to the extent of Rs. 6157- 39 Ps.
9.6 The same Division Bench of this Court went a step further in Nirmaladevi Dilipkumar Gandhi v. Gulamnabi Usmanbhai Shaikh (decided on 26/27 April 1978) 19 GLR 620 (624) and held as under:
...In other words, even if a claimant has received free medical service at his own residence or at the residence or private nursing home or clinic of a medical practitioner who is his friend or relative or from a private medical practitioner who is not thus connected with him but who has chosen to render free services for some other personal or social consideration, the claimant must still be compensated by estimating the fair and reasonable cost of supplying those services. The tortfeaser cannot benefit, under such circumstances, by escaping his liability to compensate the claimant on the ground that Page 15 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Wed May 07 22:05:27 IST 2025 NEUTRAL CITATION C/FA/2125/2023 ORDER DATED: 01/05/2025 undefined the medical services were tendered to him entirely free. The question from what source the claimant's needs have been met, the question who had given the services, the question whether the claimant was under a legal or moral liability to pay or reimburse the provider of services, are all irrelevant, so far as the tortfeasor is concerned. The claimant, when he recovers such damages, will hold them in trust for the person who rendered the services to him. In our opinion, therefore, the Tribunal's approach to the question of compensation under this sub-head is vitiated by an extraneous consideration and the same has consequently affected its award.
13. We might make it clear that we are confining these observations to free medical services rendered to a claimant in circumstances such as those mentioned above. We do not wish to express any opinion on the question as to whether when free medical service is rendered to a claimant at a general public hospital, he would still be entitled to be compensated even though he was not required to pay for the treatment. Such a case is not before us and what we have said above should not be held to apply necessarily in such circumstances. We are making this reservation because the question of compensation in such a case is not free from doubt and even in England there appears prima facie to be some inconsistency in judicial approach on the question (see Daish v. Wauton (1972) 2 QB 262 and Cunningham v. Harrison (1973) 3 WLR 97).
10. It is surprising that the Tribunal has not at all considered the above binding decisions of this Court and the decision of the Apex Court in Helen C. Rebellow all of which were rendered before the date of the award. As regards the deduction on account of insurance amount, the finding of the learned Judge cannot be accepted in view of the judgment of the Apex Court in Helen C. Rebello (Supra) and the four Division Bench judgments of this Court which were rendered more than twenty years before the award under challenge in this appeal. Hence, the deduction made by the Tribunal must be held to be contrary to the well settled legal position settled in this State since 1972."
13. In case of Mrs.Helen C. Rebello and others vs. Maharashtra State Road Transport Corporation and another r
- 1999 (1) SCC 90, it was an issue before the Hon'ble Supreme Court that whether the amount of the life insurance received by the heirs on account of victim's death can be deducted from the compensation wor ked out under the Motor Vehicle Act, 1988.
The Hon'ble Supreme Court observed that the amount Page 16 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Wed May 07 22:05:27 IST 2025 NEUTRAL CITATION C/FA/2125/2023 ORDER DATED: 01/05/2025 undefined received from the life insurance corporation on death of the victim under the life insurance policy cannot be equated with the amount received on account of accidental death. The relevant paras are 34 and 35, which reads as under :
"34. 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 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.
35. 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."Page 17 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Wed May 07 22:05:27 IST 2025
NEUTRAL CITATION C/FA/2125/2023 ORDER DATED: 01/05/2025 undefined
14. In view of above settled law, the amount which the claimant / victim has received under the head of Mediclaim from its insurer cannot have any barring while considering the medical expenses claimed under the compensation application filed by invoking jurisdiction of M. V. Act and, therefore, the contention of learned advocate for the appellant for deducting Rs.2,59,200/- from the medical bills of Rs.4,85,672/- is not accepted and the same is rejected.
15. In view of the above facts and circumstances, the appellant - insurance company is entitled to refund following amount of compensation under the different heads:
Sr. Name of the Head Compensation
No. Amount
(In Rs.)
1 Future loss of Income :
2014-15 375830-17540 358290
(Plus)
2015-16 436680-15230 421450
Total Rs.7,79,740 divided by 2
= Rs.3,89,870/- divided by 12
Monthly Income Rs.32,489
(PLUS)
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NEUTRAL CITATION
C/FA/2125/2023 ORDER DATED: 01/05/2025
undefined
Prospective Income (25%)
32489+8,122 40611
(Minus)
Personal Expenses
40611 X 1/4th = 10152
(40611-10152= 30459)
(Rs.30459X 12 X 13) 47,51,604/-
2. Other Heads 1,50,000/-
3. Medical Expenses 4,85,672/-
Total Compensation 53,87,276/-
(-) Awarded Amount 59,28,599/-
Excess Compensation / 5,41,323/-
Refund
16. Therefore, total amount of compensation would come to Rs.53,87,276/-, which is required to be awarded with 9% p.a. interest from the date of claim petition till its realisation, which would meet the ends of justice. It is pertinent to note that learned Tribunal has awarded Rs.59,28,599/- to the claimant, therefore, Rs.5,41,323/- (Rs.59,28,599 - Rs.53,87,276) is required to be refunded with 9% p.a. interest.
17. For the reasons recorded above, the following order is passed:
[A] The present appeal is allowed Page 19 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Wed May 07 22:05:27 IST 2025 NEUTRAL CITATION C/FA/2125/2023 ORDER DATED: 01/05/2025 undefined accordingly in above terms. [B] The Insurance Company is entitled to refund for an amount of Rs.5,41,323/- with
accrued interest thereon from the date of claim petition till its realisation before the concerned Tribunal, within a period of Four Weeks from the date of receipt of this order.
[C] The Tribunal shall refund the excess to the appellant by `Account Payee Cheque' / `RTGS' / 'NEFT', after proper verification and after following due procedure.
[D] Record & Proceedings, if any, be sent back to the concerned Tribunal, forthwith. No order as to costs.
18. In view of partly allowing of the main matter, connected Civil Application will no longer survive and the same stands disposed of accordingly.
Page 20 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Wed May 07 22:05:27 IST 2025
NEUTRAL CITATION C/FA/2125/2023 ORDER DATED: 01/05/2025 undefined
19. After passing the above order, learned advocate for the respondent has requested to stay this order for four weeks to which learned advocate for the appellant has `no objection.' Hence, this order is stayed for four weeks, as requested by learned advocate for the respondent.
(D. M. DESAI,J) vk Page 21 of 21 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Wed May 07 22:05:27 IST 2025