Madras High Court
The Branch Manager vs Ganesan on 4 October, 2018
Equivalent citations: AIRONLINE 2018 MAD 1717
Author: V.M. Velumani
Bench: V.M. Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.10.2018
CORAM
THE HONOURABLE MS.JUSTICE V.M. VELUMANI
CMA(MD).No.1091 of 2017 and
CMP(MD).No.1129 of 2017 and 1689 of 2018
The Branch Manager,
National Insurance Company Limited,
1st Floor, KRT Building,
No.33, Bharathidasan Salai,
Promenade Road, Cantonment,
Tiruchirappalli ? 620 001 : Appellant/ 2nd respondent
Vs.
1.Ganesan
2.R.Babu : Respondents
Prayer: The Civil Miscellaneous Appeal is is filed under Section 173 of
Motor Vehicles Act, 1988 Against the Judgment and Decree in MCOP.No.107 of
2015, dated 03.06.2017, on the file of the Motor Accident Claims Tribunal /
Principal Subordinate Court, karur.
!For Appellant : Mr.J.S. Murali
^For 1st Respondent : M/s. K. Balasubramani
:JUDGMENT
This Civil Miscellaneous Appeal has been filed against the Award made in MCOP.No.107 of 2015, dated 03.06.2017, on the file of the Motor Accident Claims Tribunal / Principal Subordinate Court, karur.
2. This appeal is filed by the appellant / Insurance Company challenging the portion of the Award, granting a sum of Rs.4,00,000/- towards medical expenses to the first respondent. Though in the grounds of appeal the appellant has raised a ground that amounts awarded by the Tribunal are excessive, during the course of hearing, the learned counsel appearing for the appellant contended that the appellant is challenging only the portion of the award, granting a sum of Rs.4,00,000/- towards medical expenses to the first respondent.
3. The contention of the learned counsel appearing for the appellant is that the fist respondent spent a sum of Rs. 6,14,148/- towards medical expenses, out of which, Rs.4,00,000/- was reimbursed by Insurance Company under Medi claim policy and the claimant has paid only a sum of Rs.2,14,148/- towards medical expenses to the hospital. In view of the same, the first respondent is not entitled to a sum of Rs.4,00,000/- paid by the another Insurance Company from the appellant towards medical expenses. According to the appellant, once the first respondent has not paid the amount of Rs.4,00,000/- towards medical expenses, he is not entitled to claim the said amount from the appellant. He further contended that the first respondent is not entitled to claim the amounts paid under Medi claim Policy, as per the Motor Vehicles Act. In support of his contention, the learned counsel appearing for the appellant relied on the Judgment reported in 2016 ACJ 807 (National Insurance Company Limited Vs. Akber Badsha and others) wherein paragraph Nos. 7 to 11, 17, it has been held as follows:-
?7. The policy issued by the Life Insurance Corporation and similar bodies providing coverage for life , stands entirely on a different footing than the policy issued by General Insurance Companies covering such other risks; whether it be a policy to cover the statutory insurance under the M.V. Act or the policy of insurance issued under the Workmen's Compensation Act (presently the Employees' Compensation Act) or whether it be a Mediclaim policy. In the case of the former, ( i.e. Life Insurance Policies) life of the insured is assured and if there is any threat to the life, it is of course liable to be compensated by the Insurance Company. But satisfaction of the amount covered by such policy does not depend upon occurrence of death/accident and even if nothing happens to the insured, by virtue of the M.A.C.A.No.1623 OF 2013 terms of the policy, the sum assured ( which is inclusive of the premium paid and the bonus assured and accrued) is liable to be paid to the insured, once the term of the policy is over. In other words, if a Life Insurance policy has been taken to an extent of Rs.One lakh, paying the requisite amount of premium, during the period of policy, say 10 years, if nothing happens to the life of the insured, the entire amount covered by the policy, plus bonus accrued and such amounts, if any, as per the terms of the policy will be payable to the insured and as such, it is the vested right of the insured to get the said amount, notwithstanding the fact that no contingency has occurred. If any death occurs in the meanwhile, it goes without saying that the beneficiary will be entitled to get the amount covered by the policy without payment of any further premium, as per the terms of the policy. It is not the position in the case of other policies, i.e. latter group referred to above, issued by General Insurance sector. In the case of latter group of policies, it also is a contract of insurance, subject to payment of premium. It is true that, for obtaining Mediclaim M.A.C.A.No.1623 OF 2013policy as well, various formalities have to be completed by the insured, as to the production of various documents and satisfaction of the premium to the requisite extent. But, so as to make the insured eligible to obtain the amount covered by the policy, the 'contingency' as mentioned in the policy has necessarily to occur, i.e., accident or illness, as the case may be and only subject to suffering the injuries/accident, that the damages/compensation will become due under the said policy. In the case of policy issued under the M.V.Act or Workmen's Compensation Act, occurrence of the accident is a 'sine quo non' so as to make the beneficiaries entitled and eligible to get the amount covered under the policy to the specified extent.
8. It is worthwhile to note the observations made by the Apex Court in Helen C. Rebello and others vs. Maharashtra State Road Transport Corporation (AIR 1998 SC 3191) . The main question considered by the Court was in respect of the amount of Life Insurance, as to whether the same was to be deducted from the amount of compensation payable under the M.A.C.A.No.1623 OF 2013 Motor Vehicles Actto the claimants or not. Paragraph 34 of the said judgment reads as follows:
"34. Thus, it would not include that which claimant receives on account of other form of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no corelation 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 note 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.
9. The said vital distinction, is further discernible from the discussion made by the Apex Court in United India Insurance Co.Ltd vs. Patricia Jean Mahajan (AIR 2002 SC 2607). The relevant portion in paragraph 26 of the said verdict is extracted below:
M.A.C.A.No.1623 OF 2013 " 26. From the above passage it is clear that the deductions are admissible from the amount of compensation in case the claimant receives the benefit as a consequence of injuries sustained, which otherwise he would not have been entitlted to. It does not cover cases where the payment received is not dependent upon an injury sustained on meeting with an accident. The Apex Court has made a reference to the judgment in Helen C. Rebello and others vs. Maharashtra State Road Transport Corporation (cited supra) and has extracted paragraph 34 (as extracted already) in paragraph 35 of the said verdict as well
10. The judgment rendered by a Division Bench of the Madhya Pradesh High Court in MP State Road Transport Corporation vs. Priyank (2000 ACJ 701) which was relied on by the learned Judge of this Court in 2011(2) KLT 20 (cited supra) ( which is doubted and referred to) came to be passed placing reliance on the verdict passed by a Full Bench of the Madhya Pradesh High Court in 1983 ACJ 152 ( Kashiram Mathur and others vs. Sardar Rajendra Singh and another). The Division Bench of the Madhya Pradesh High Court unfortunately omitted to note the M.A.C.A.No.1623 OF 2013 vital distinction between the nature of policy involved (Mediclaim policy) and the policy considered by the Full Bench of the said Court (Life Insurance Policy)and simply held that no deduction of the amount obtained under the Mediclaim policy was justified .
In fact, in the verdict passed by the Full Bench of the Madhya Pradesh High Court, it was held that there shall not be any deductions in respect of the amount, which is received under the (1) Life Insurance Policy; (2) Provident Fund; (3) Family pension; and (4) Gratuity. In respect of 'Ex-gratia' payment,, the Full Bench held that the same was deductible . The amounts under the above 'four' heads stand on a different footing and it is not an advantage by reason of death/accident.
11. These aspects were infact considered by a Division Bench of the Karnataka High Court pursuant to the reference made , doubting the decision rendered by a Single Bench of the Karnataka High Court in Shaheed Ahmed vs. Sankaranarayana Bhat (ILR 2008 Karnataka 3277) . It was accordingly held by the Bench in the New India Assurance Company Limited vs. Manish Gupta and others M.A.C.A.No.1623 OF 2013 [2013 (1) Karnataka Law Journal 624] explaining the significant difference in between and observing that the very concept of insurance is not to extend any unlawful enrichment to anybody in respect of the very same cause of action. The purpose of insurance is only to place the party to the same level from where he suffered the downfall because of the contingency occurred.
17. In the said circumstance, this Court declares that the Insurance Company is entitled to 'set off' the amount in respect of the medical bills with regard to the same injuries under the Mediclaim Policy, except to the extent of 'premium' satisfied under the Mediclaim Policy. Reference stands answered accordingly. The award passed by the Tribunal is modified and the liability of the Insurance Company is scaled down to the above extent. Judgment passed by the learned single Judge , as reported in 2011 (2) KLT 20 (cited supra) stands overruled.
Appeal stands allowed. No cost.?
4. The learned counsel appearing for the first respondent contended that the first respondent has spent a sum of Rs.6,14,148/- towards medical expenses and he is entitled to claim and receive the same from the second respondent and appellant. The amount paid by the Insurance Company under Medi claim policy is based on the separate contract between the first respondent and Insurance Company under Medi claim Policy and first respondent paid premium. He further contended that the Tribunal relying on the Judgment of this Court reported in 2014 ACJ 1674 ( National Insurance Company Limited Vs. C.Ramesh Babu and another), has held that the first respondent is entitled to a sum of Rs.4,00,000/- paid by the Insurance Company under Medi claim policy. The finding of the Tribunal is valid. The relevant portion of the said Judgment reads as follows:
?8. ... We find no error in the grant for medical expenses as borne out by bills. The reimbursement of medical expenses is pursuant to an independent contract entered into between the claimant and insurance company. Settlement of a claim thereunder can have no bearing on the right of the claimant to seek compensation towards medical expenses in a claim under the Motor Vehicles Act. In saying so we would follow Helen C. Rebello Vs. Maharashtra State Road Trans. Corpn. 1999 ACJ 10 (SC)....?
5. I have heard the learned counsel appearing of the appellant and the first respondent and perused the materials available on record.
6. From the materials on record, it is seen that the Tribunal had granted a sum of Rs.4,00,000/- towards medical expenses under the head ?amounts received under the private Insurance Policy? is erroneous. As far as the medical expenses are concerned, the first respondent is entitled to receive only actual amounts spent by him towards medical expenses. Without spending any amount towards medical expenses, the first respondent is not entitled to receive the any amount towards medical expenses. In the present case, admittedly, a sum of Rs.4,00,000/- was paid to the hospital under Medi Claim policy. The first respondent has spent a sum of Rs.2,14,148/- towards medical expenses. If the sum of Rs.4,00,000/- paid by the Insurance Company under Medi claim policy is awarded to the first respondent, it will amount to double payment and first respondent is unjustly enriching himself without actually incurring the same. The contention of the first respondent that the Tribunal relying on the Judgments of this Court, only awarded a sum of Rs.4,00,000/- under the head ?amounts received under the private Insurance Policy? is not acceptable. The Judgment relied on by the learned counsel appearing for the appellant is squarely applicable to the facts of the present case.
7. For the above reasons, this Civil Miscellaneous Appeal is allowed, by the setting aside the portion of the Award of the Tribunal in respect of Rs.4,00,000/- granted to the first respondent under the head of ?amounts received under private Insurance Policy?. Accordingly, the amount awarded by the Tribunal is reduced from Rs.10,09,060/- to Rs.6,09,060/- together with the interest at 7.5% per annum from the date of petition till the date of deposit. No costs. Consequently, connected Miscellaneous Petition is closed.
8. The appellant / Insurance Company is directed to deposit the said sum of Rs.6,09,060/- with accrued interest, after deducting the amount already deposited if any, within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit being made, the first respondent is permitted to withdraw the said award amount on filing proper application before the Tribunal.
To
1. The Motor Accident Claims Tribunal / Principal Subordinate Judge, karur.
2. The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai.
.