Gujarat High Court
New India Assurance Co. Ltd vs Nipeshbhai Bhagvanjibhai Patel on 5 December, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/1713/2017 JUDGMENT DATED: 05/12/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1713 of 2017
With
CIVIL APPLICATION (DIRECTION) NO. 1 of 2023
In R/FIRST APPEAL NO. 1713 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
✔
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NEW INDIA ASSURANCE CO. LTD.
Versus
NIPESHBHAI BHAGVANJIBHAI PATEL & ORS.
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Appearance:
MR.KRUTIK A PARIKH(7268) for the Appellant(s) No. 1
MR CJ VIN(978) for the Defendant(s) No. 4
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2
UNSERVED EXPIRED (R) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 05/12/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE MAULIK J.SHELAT)
1. The present appeal is filed by the Insurance Company under Section 173 of the Motor Vehicle Act (herein after referred to as 'the M.V. Act') challenging judgment and award dated 18.11.2016 passed by the Motor Accident Claim Tribunal Page 1 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined (Aux.), Surat in Motor Accident Claim Petition No.287 of 2011.
2. The parties will be referred as their original position before the Tribunal.
3. Short facts of the case appear to be as under; 3.1 That on 18.03.2011 at about 10:30 hours, the deceased Raxitaben was going on his yo-bike from his house to his clinic at Parle Point by obeying traffic rules at the left side of the road and when she reached near Sardar Bridge, Opponent no.1 was driving his S.T.Bus No.GJ-5-T-1427 in a rash and negligent manner and violating traffic rules, dashed his bus with yo-bike of deceased - Raxitaben, thereby she received serious injuries and succumbed to it during course of treatment on 23.03.2011.
3.2 As the death of the deceased was due to rash and negligent driving on the part of the bus involved in the accident, so the claimants have filed claim petition under Section 166 of the Act claiming compensation of Rs.1,00,00,000/- from driver, owner and insurance company of bus.
3.3 FIR came to be lodged against opponent no.1. The Opponent no.2- Commissioner, Surat Municipal Corporation, Page 2 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined was the owner of the bus. Opponent No.1 and 2 though served but not filed any written statement, thereby, not contested the petition. Whereas, opponent no.3 - insurance company (Appellant herein) had contested the petition on all counts by filing its written statement at Exh.17.
3.4 It is a case of claimants that deceased was 36 years of age at the time of accident serving as doctor in Charak Health Centre at Parle point, which was an authorised health center of Charak Pharma Private Limited, Mumbai. It is further alleged that she was also doing her private practice. The deceased was holding Degree of M.A. in psychology and a diploma in Clinical and Community Psychology (DCCP) from Gujarat University.
3.5 The Claimants have submitted oral evidence of claimant No.1- husband of deceased and submitted various documentary evidence to prove that the accident in question as well as income of deceased, which are referred by Tribunal in para-7 of its impugned judgment.
3.6 The Opponents have not led any oral and documentary evidence in support of their defence.
3.7 The written arguments were tendered by claimants and Page 3 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined insurance company at Exh.68 and 69 respectively in support of their case.
3.8 After appreciating evidence on record, the Tribunal has found driver of the bus solely negligent for causing accident and held that deceased died due to vehicular accident due to sole negligence of the driver of the bus.
3.9 Thereafter, the Tribunal has decided the quantum of compensation and taking into account the documentary evidence of income of deceased and in all awarded Rs.57,85,000/- with 9% from the date of petition till realization to be paid jointly and severally by opponents.
4. Being aggrieved and dissatisfied with the impugned judgment and award, opponent no.3 - insurance company has preferred the present first appeal on various grounds enumerated in the memo of appeal but during the course of hearing, learned advocate Mr. Krutik A Parikh, appearing for insurance company confined his argument in relation to quantum of compensation awarded by the Tribunal.
SUBMISSIONS OF THE APPELLANT - INSURANCE COMPANY
4. Learned advocate Mr. Krutik A. Parikh, appearing for insurance company has vehemently submitted that Tribunal has Page 4 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined committed a gross error by considering the income of the deceased on basis of her alleged computation of income which are submitted at Exh. 22 to 24 by treating it as an income tax return of deceased - Raxitaben, thereby committed a serious error in computing income of deceased.
4.1 Learned advocate Mr. Krutik A. Parikh, appearing for insurance company would further submit that the claimants have not submitted any copy of income tax returns of deceased
- Raxitaben for last three years prior to accident on record for which alleged computation of her income submitted but the documents, which are on record, show only a computation of income as well as profit and loss account and balace-sheet, which cannot take place of proof of income in absence of any income tax return certifying such incomes shown in computation of income.
4.2 Learned advocate Mr. Krutik A. Parikh, appearing for insurance company would further submit that author of such documents (Exh.22 to 24) prepared for assessment year 2009- 2010, 2010-2011 and 2011-2012 was not examined and its authenticity is highly questionable in absence of supporting corroborative evidence. He would further submit that in absence of any convincing proof of income so far as other Page 5 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined incomes of her reflected in computation of income then receipt of the income from Charak Health Centre, is erroneous on the part of Tribunal for computing income of deceased.
4.3 Learned advocate Mr. Krutik A. Parikh, appearing for insurance company would further submit that deceased was in fact working with her husband in his clinic and not actually working in Charak Health Centre then it is unsafe to rely upon documents, which are submitted by claimants in support of their claim. He would further submit that claimants have not proved income of deceased by examining the employer and objections raised by Insurance Company before Tribunal about her actual employment with Charak Health Centre, which was not addressed properly by Tribunal. According to submission of Learned advocate Mr. Krutik A. Parikh, appearing for insurance company, a notional income of any house wife prevailing at the time of accident ought to have been taken by Tribunal for computing compensation.
4.4 Lastly, he would submit that Tribunal has committed a gross error by awarding Rs.1,00,000/- each towards loss of consortium and loss of love and affection and so also Rs.25,000/- towards funeral expenses, which are contrary to law laid down by Hon'ble Suprme Court of India in the case of National Insurance Company Limited Versus Pranay Sethi Page 6 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined reported in 2017 (16) SCC 680, MAGMA GENERAL INSURANCE CO. LTD. Versus NANU RAM & ORS. reported in 2018 (18) SCC 130, UNITED INDIA INSURANCE CO LTD Versus SATINDER KAUR @ SATWINDER KAUR & ORS reported in 2021 (11) SCC 780. So according to Learned advocate Mr. Krutik A. Parikh, appearing for insurance company, the Tribunal awarded more than just compensation. So, the judgment and award passed by the Tribunal requires to be interfered with by this Court and accordingly, requested to grant just compensation to the claimants.
SUBMISSION OF THE RESPONDENTS - CLAIMANTS
5. Per contra, learned advocate Mr. Hiren M. Modi, appearing for the claimants would submit that there is no error committed by the Tribunal while awarding compensation and after appreciating evidence on record, the Tribunal has awarded just compensation, which may not be interfered with by this Court.
6. He would submit that deceased was qualified person working with Charak Health Centre and her income provided from Charak Pharma Private Limited was duly proved from Form 26AS (TDS certificate) produced on record for year 2008- 2009, 2009-2010 and 2010-2011 at Exh. 42 to 44 respectively.
Page 7 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined He would further submit that Form 26AS would decisively prove the fact that employment of deceased with Charak Health Private Limited and income earned by deceased during her life time.
7. He would further submit that income tax payment in Form 26AS is a statutory document, which cannot be disputed unless proved otherwise. He would submit that in absence of any contrary evidence led by insurance Company to disprove the said Form 26AS, it is not proper on the part of Insurance Company to dispute employment income of deceased. To buttress his argument, he would rely upon the decision of Hon'ble Supreme Court in the case of Malarvizhi and other vs. United India Insurance Company limited, reported in 2020 (4) SCC 228.
7.1 He would further submit that unfortunately, the original claimants could not submit the copy of income tax returns of deceased for past few years prior to accident but there were other income tax return for the year so 2001 to 2006 produced at Exh. 61 to 65. Further, it would be self- sufficient to believe the incomes of deceased, which were shown in her computation of income for remaining years.
Page 8 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined 7.2 According to learned advocate for the claimants, the Tribunal has considered the average of annual income of last 3 years preceding to the year of accident while computing the actual income of deceased, thereby, not granted any excess award under head of loss of dependency.
7.3 He would further submit that deceased was hospitalised and died during the course of treatment after about 5 days from the date of accident and having incurred total medical expenses of Rs. 2,27,787/- (Exh.37), the claimants are entitled to receive such amount even if the same has been received by them under medi-claim insurance policy. He would submit that a tort feasor cannot take advantage of wise financial investments made by the deceased or of any insurance taken by deceased and/or a claimant for securing their life/ health by taking mediclaim policy for which claimant/deceased had paid separate premium. He would submit that Tribunal ought to have granted such medical expenses while awarding compensation and requested this Court to grant it while adjudicating just compensation.
7.4 Lastly, he would submit that both claimants are entitled to receive the amount under the head of consortium and also fixed amount under loss of estate and funeral Page 9 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined expenses as per various decisions of Honourable Supreme Court in case of Pranay Sethi (supra), MAGMA GENERAL INSURANCE CO. LTD. (supra), SATINDER KAUR @ SATWINDER KAUR & ORS (supra). Thus, he has requested this Court to grant just and reasonable compensation by considering aforesaid facts and evidence on record and as such there is no error committed by the Tribunal while awarding compensation then requested this Court to dismiss the appeal. . SUBMISSION OF THE OPPONENT NO.4
8. Learned advocate Mr. C.J.Vir, appearing for Opponent No.4 - Owner of bus would adopt the argument of the appellant - insurance company and requested this Court to pass appropriate order and grant just compensation in accordance with law.
9. Heard learned advocates appearing for the respective parties and perused the record and proceedings of the case. No other and further submissions are being made.
POINT OF DETERMINATION.
(i) Whether, in the facts and circumstance of the case, the Tribunal has committed an error while computing income of deceased thereby awarded more than just compensation, if yes, what would be Page 10 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined just compensation?
(ii) Whether, in the facts and circumstances of the case, the Tribunal has committed an error in deducting medical expenses so received by claimants from their Mediclaim Policy?
APPRECIATION OF SUBMISSIONS
10. At the outset, it is required to be noted that none of the opponents including insurance company have led any evidence before Tribunal to either controvert documentary evidence on record, which were submitted by claimants or to dislodge the claim of claimants so far as working of Raxitaben with Charak Pharma Private Limited.
11. When the insurance company came out with the case and disputed employment of deceased with the said company, burden is upon insurance company to lead appropriate evidence, which they miserably failed to prove it. At the same time, claimants have successfully proved by way of oral and documentary evidence that the deceased was qualified person having degree of M.A. in Psychology and a Diploma in Clinical and Community Psychology (DCCP) from Gujarat University and also working with Charak Health Centre at Parle Point, Surat at the time of accident. So, after going Page 11 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined through evidence on record, we are unable to agree with submissions made by learned advocate Mr Parikh, appearing for insurance company that deceased - Raxitaben was not working with Charak Health Centre but helping her husband at his Ayurvedic clinic.
12. This leads us to the next limb of argument of insurance company about wrongly computing the income of deceased on basis of her alleged computation of income by Tribunal while computing compensation.
13. True, the documents, which are submitted at Exhibit 22 to 24 are not a copy of income tax returns but it was a computation of income prepared by claimants and submitted in support of their claim before Tribunal. The Tribunal appears to have considered these statement of income for the year 2009-2010, 2010-2011, 2011-2012 by taking average income of deceased thereby worked out her annual income @ Rs.3,70,000/- per year. When we have gone through the aforesaid exhibited documents, apart from income which were reflected in her form 26AS for respective years produced at Exhibit 42 to 44, there were other incomes from different source were shown in computation of statement of income. Nonetheless, no supportive evidence to substantiate other Page 12 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined incomes were submitted by claimants and even not examined the author of such computation of income including profit and loss and Balance sheet of deceased prepared for respective years. So, in view of said peculiar facts of the case, it is unsafe to rely upon such computation of income as an actual proof of income of deceased and to that extent, the Tribunal has committed an error by taking an average annual income shown in aforesaid computation of income submitted at Exhibit 22 to 24.
14. Nevertheless, it remained undisputed before Tribunal that Form 26AS were produced for the aforesaid respective last 3 years preceding the date of accident at Exhibit 42 to 44, which were duly reflects payments made by Charak Pharma Private Limited to deceased - Raxitaben in respective years. At this stage, it is apposite to refer and rely upon the decision of apex court in the case of Malarvizhi (Supra) wherein it has been held thus:-
"10. .........We are in agreement with the High Court that the determination must proceed on the basis of the income tax return, where available. The income tax return is a statutory document on which reliance may be placed to determine the annual income of the deceased............"
15. We would like to observe that Form 26AS, a tax credit statement, which provides a comprehensive summary of all Page 13 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined taxes related information linked to bank credit of any person during specific year. The income tax department issues this Form every financial year.
16. This Form 26AS is a statement that provides details of any amount deducted as TDS from various sources of income of a taxpayer. Form 26AS is an important document for tax filing. Such Form can be viewed and downloaded from the website of income tax department, which is issued in every financial year by the income tax department.
17. Thus, considering the nature of documents, Form 26AS can also be considered as statutory document and we can safely rely upon it while assessing the income of deceased Raxitaben.
18. Now, we would like to analyze Form 26AS, which was submitted at Exhibit 42 to 44, more particularly, Exhibit 44, which is related to assessment year 2011-2012, wherein a total income earned by deceased from Charak Pharma Private Limited shown as Rs.2,65,000 for 11 month.
19. So, considering her last income Rs.30,000/- per month received from such company for 12 month, her earning could have been considered Rs.2,95,000/-. We would like to observe Page 14 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined here that payments, which are made by the said company of deceased shown in Exhibit 44 for financial year 2010-2011, were variable then we have taken into account the said annual income to arrive at just income of deceased.
20. The claimant no.1 has tendered his oral evidence at Exhibit 20, deposing that his wife - Raxitaben was also doing her private practice and earning rupees Rs.1,60,000/- out of such private consultancy.
21. The appointment letter of Raxitaben with Charak Health Centre issued on 01.01.2009 by Charak Pharama Private Limited though not exhibited (mark 40/1) would indicate that her appointment by the said company as Chief Consultant, Clinical Psychologists and psycho-speech therapist at Charak Health Centre, Parlay Point, Surat, with effect from 01.01.2009 by fixing Rs.40,000/- per month as consultancy fees. Wherein it has been so stated that private consultation during the spare time by her would not be objected by the company. The claimant no.1 was cross-examined by Insurance Company but not a single question put to him about non-earning by Raxitaben out of her private consultancy rather it has come out from his cross-examination that his wife was not doing any consultation in relation to allopathic.
Page 15 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined
22. Although, no further supportive evidence submitted by claimants to prove actual income of such private consultancy of deceased then on guess work, we would like to consider her annual income from such private consultancy to Rs.35,000/- to draw just income from other sources.
23. Thus, in view of the above stated facts, out of her two source of income, we would like to assess the income of deceased - Raxitaben to Rs.3,30,000/- per year (2,95,000/- from Charak Pharma Private Limited to Rs.35,000/- from her private consultancy).
24. As deceased was professional and her earning from Charak Pharma Private Limited was variable as observed hereinabove and as we are taking into account her private consultancy income and was aged about 36 years old, so we would like to add 40% future prospective rise of income as per law laid by Hon'ble supreme Court of India in the case of Pranay Shetty (supra).
25. To address the last limb of argument of Insurance Company regarding higher amount awarded by Tribunal under different conventional head, the claimants, being spouse and minor son of deceased, would entitle as consortium amount Rs. 48,400/ i.e. loss of spousal and parental consortium respectively. Likewise, Rs.18,150/- towards loss of estate and Page 16 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined funeral expenses respectively is required to be granted to the claimants. We would also like to grant Rs.20,000/- towards attendant, special diet, and transportation charges to the claimants.
26. At this stage, we would also like to address an issue which has been raised by Mr. Hiren Modi, learned advocate for claimants that claimants have incurred Rs.2,27,787/- as medical expenses, as deceased - Raxitaben died during course of his treatment after about 5 days from the date of accident but such expenses were not awarded by Tribunal on the basis that same has been received by claimants being received under their medical insurance policy.
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.
28. It is apposite to refer and rely upon the following decision of the Division Bench of this Court on the issue which is germane here and no longer remained res integra. In the Page 17 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined case of Satishkumar Rasiklal Doctor vs Baldevbhai Chhaganbhai Thakore and others, reported in 2007 (1) GCD 727,; 2008 (14) GHJ 263, wherein, this Court held 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.Page 18 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024
NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined 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 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 Page 19 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined 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 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 Page 20 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined 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 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 Page 21 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined 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 Page 22 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined 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 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 Page 23 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined 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."
emphasis supplied
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).
30. Thus, in view of above stated discussion and finding, claimants are entitled to the following compensation as under;
Page 24 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined Annual income Rs.3,30,000/- 40% prospective rise Rs.1,32,000/- Total income Rs.4,62,000/-
1/3th deduction towards personal Rs.1,54,000/- expenses Annual loss of dependency Rs.3,08,000/-
Considering the age of deceased 15 as 38 years - Multiplier Loss of dependency Rs.46,20,000/- Loss of Consortium Rs.96,800/- (Rs. 48,400 * 2 claimants) Loss of Estate Rs.18,150/- Funeral Expenses Rs.18,150/- Medical Expenses Rs.2,27,787/- Attendant, Special Diet and Rs.20,000/- Transportation Charges etc. Total compensation Rs. 50,00,887/- Round Off Rs.50,00,000/- Compensation already awarded Rs.57,85,113/- by the Tribunal Page 25 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024 NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined Excess compensation Rs.7,85,113/- CONCLUSION
31. In view of the above stated discussions, reasons and our findings so recorded, we hereby held that claimants would be entitled to Rs. 50,00,000/- with 9% interest from the date of claim petition till its realization.
31.1 As the Tribunal has awarded compensation Rs. 57,85,000/- with costs and interests, the appellant- Insurance Company is entitled to get refund of Rs.7,95,000/- with 9% interest from the date of claim petition till it is deposited and, thereafter, interest accrued in FDR on such amount till its realization by way of RTGS/ NEFT/ other banking mode as per the practice of Tribunal in accordance with law.
31.2 The balance amount, lying in FDR shall be released and paid in favour of original claimants on proper verification through RTGS/NEFT/ other banking mode as per the practice of Tribunal in accordance with law.
31.3 Thus, in view of the above, the present appeal is partly allowed to the aforesaid extent. No order as to costs.
Page 26 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024NEUTRAL CITATION C/FA/1713/2017 JUDGMENT DATED: 05/12/2024 undefined Civil Application if any is also disposed of accordingly.
31.4 Records and proceedings be sent back to the Tribunal forthwith.
(BIREN VAISHNAV, J) (MAULIK J.SHELAT,J) MOHD MONIS Page 27 of 27 Uploaded by MOHD MONIS(HC01900) on Fri Dec 13 2024 Downloaded on : Fri Dec 20 22:24:38 IST 2024