Kerala High Court
M/S. The National Insurance Company ... vs M/S. The National Insurance Company ... on 30 April, 2015
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon, Anil K.Narendran
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
WEDNESDAY, THE 9TH DAY OF MARCH 2016/19TH PHALGUNA, 1937
MACA.No. 2370 of 2015 ()
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AGAINST THE AWARD IN OPMV 1060/2009 of M.A.C.T.,PERUMBAVOOR
DATED 30-04-2015
APPELLANT/2ND RESPONDENT:
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M/S. THE NATIONAL INSURANCE COMPANY LIMITED
2ND FLOOR, MALLAPPALLY BUILDINGS, A.M.ROAD,
PERUMBAVOOR, REPRESENTED BY ITS MANAGER,
REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.
BY ADV. SRI.LAL GEORGE
RESPONDENT(S)/CLAIMANT AND 1ST RESPONDENT
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1. P.D. DEVASSY ALIAS BABY
S/O.DEVASSY, ARACKAPULLAN HOUSE,
NEDUNGAPARA P.O., PERUMBAVOOR - 683 542.
2. P.C.JOSE
S/O.CHACKO, ARCKAPULLAN HOUSE, ARUVAPPARA P.O.,
VENGOOR, PERUMBAVOOR - 683 546.
R1 BY ADV. SRI.SOORAJ T.ELENJICKAL
R1 BY ADV. SRI.S.PRASANTH
R1 BY ADV. SMT.MARY RESHMA GEORGE
R1 BY ADV. SMT.P.M.MAZNA MANSOOR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
09-03-2016, ALONG WITH CROSS OBJN.NO.183/15, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.
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M.A.C.A.No.2370 OF 2015
&
Cross Objection No.183 OF 2015
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DATED THIS THE 9th DAY OF MARCH, 2016
JUDGMENT
P.R.RAMACHANDRA MENON, J.
This appeal has been filed by the insurer of the vehicle bearing No.KL-07-AE/1409, being aggrieved of the Award dated 30.4.2015, passed by the Tribunal, whereby overlapping claim has been effected in so far as the 'medical expense' is concerned, which is to an extent of 90,000/- as discernible from the Award.
2. The factual position as revealed from the proceedings is that, while the claimant was riding a motor cycle, a car bearing No.KL-07/AE-140, owned and driven by the 1st respondent and insured by the 2nd respondent before the Tribunal hit on the motor cycle causing serious injuries, which led to the claim petition filed by the claimant before the Tribunal seeking to compensate the loss.
3. The Tribunal, based on the facts and figures brought to light, awarded a total compensation of 4,97,777/- which was directed to be satisfied with interest @ 9% per annum from the date of petition, i.e., 12.3.2015, which included a sum of 90,000/- MACA.2370/2015 & Cross Objn.No.183/15 -2- obtained under a 'mediclaim policy' as well. The same is liable to be deducted and the grievance of the appellant is only to the said extent, placing reliance on the judgment rendered by this Court reported in National Insurance Company Ltd. v. Akber Badsha (2015 (4) KLT 442).
4. Heard the learned counsel for the appellant/Company as well as the learned counsel for the 1st respondent/claimant.
5. The amounts awarded under different heads as given in the table forming part of Paragraph No.36 are extracted below:
Sl. Head of claim Amount Amount Basis - Vital details in a No. Compensation for claimed(in awarded nut shell rupees) (in rupees) 1 Loss of earnings 36000 27000 4500x6 month 2 Partial loss of earnings 36000 NIL 3 Transport to hospital 40000 10000 Ten IP + 4 OP 4 Extra nourishment 30000 7500 1250 x 6 months 5 Damage to clothes, M/C 4500 1000 6 Medical expenses 300000 288057 Actual medical bills 7 Nursing expenses 50000 17000 .250 x 68 days 8 Pain and suffering 60000 35000 2 fracture+other injuries 9 Loss of amenities, etc. 30000 25000 10 Future medical expenses 50000 10000 Implant removal 11 Disability 1,00,000 77220 4500x12x11x13% 12 Disfiguration 20000 NIL 7,56,500/- 4,97,777/- 4,97,777/- along with (limited to interest @ 9% p.a. 5,00,000) MACA.2370/2015 & Cross Objn.No.183/15 -3-
6. The particulars of the medical bills considered for payment so as to award a total sum of 2,88,057/- have been discussed in Paragraph Nos.28 and 31, which are extracted below:
"28. Ext.A26 certificate issued by the Divisional Manager of the Oriental Insurance Company shows that, though the petitioner had furnished Bill No.09-006603 for 1,17,476.99, a sum of 90,000/- alone was settled under their Happy Family Floater Policy No.441700/48/2010/56.
xxxxxx xxxxxx xxxxxx xxxxxx
31. Since the original bill was furnished to the Insurance Company for claiming medi claim benefits, the duplicate inpatient bill produced by the petitioner and marked as Ext.A25 can be accepted. So the petitioner is entitled to get reimburse of 1,70,580/- covered under Ext.A24 series and the sum of 1,17,477/- covered under Ext.A25 inpatient bill, totalling to 2,88,057/- towards treatment expenses."
7. The sum and substance of the case projected by the appellant/insurer is that, out of the total amount of 2,88,057/- awarded by the Tribunal, admittedly a sum of 90,000/- was settled/obtained under a separate 'mediclaim policy'. The learned counsel for the 1st respondent submits that the said MACA.2370/2015 & Cross Objn.No.183/15 -4- amount was obtained under a different policy, paying separate premium, that too from a different Company and as such, there is nothing wrong on the part of the Tribunal having allowed the said amount as well. But the scope of such contention was meticulously considered by this Court as per decision reported in National Insurance Company Ltd. v. Akber Badsha (2015 (4) KLT 442), whereby the decision rendered by the learned Single Judge in National Insurance Company Ltd. v. Bijumon (2011 (2) KLT 20) was overruled and it was held that the concept of insurance did not contemplate any overlapping payment and the cause of action to the requisite extent alone could be compensated placing the party/victim on the same pedestal, from where he was fallen down because of the mishap/accident. This being the position, this Court finds that the sum of 90,000/- obtained by the claimant is liable to be deducted and only the balance requires to be paid by the appellant/Company. At the same time, the amount paid by the claimant as 'premium' for procuring the 'mediclaim policy' turns to be a loss in so far as the grievance is concerned and as such, MACA.2370/2015 & Cross Objn.No.183/15 -5- the said amount is liable to be repaid by the appellant immediately on production of necessary proof with regard to the actual amount paid for obtaining the said 'mediclaim policy'.
8. The learned counsel for the 1st respondent/claimant submits that he has filed Cross Objection No.183/2015, which is also coming up, though yet to be admitted. The learned counsel submits that enhancement of the compensation is also sought for, adding that some of the medical bills have not been sanctioned, the particulars of which are to be ascertained and sanctioned to an appropriate extent. This, however, is a different matter, which shall be looked into separately as the contention/challenge raised by the appellant/ Company in MACA.2370/15 is only to the extent of necessitating reduction of amount claimed/obtained under 'mediclaim policy'. Nothing else further survives in M.A.C.A.No.2370/2015 and as such, the said appeal preferred by the Insurance Company is disposed of ordering deduction to the said extent and thus modifying the award passed by Tribunal as aforesaid. As a natural consequence, the Cross Objection does not survive to be considered separately MACA.2370/2015 & Cross Objn.No.183/15 -6- and as such it is closed, without prejudice to the rights and liberties of the claimant/cross objector to file a separate appeal, if any enhancement is needed or if any of the bills submitted based on the mediclaim policy, which actually should have been awarded, but has not been awarded, is left over to be compensated by the appellant/Company herein.
Sd/-
P.R.RAMACHANDRA MENON, JUDGE Sd/-
ANIL K.NARENDRAN, JUDGE dsn True copy P.S.to Judge