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2008 DIGILAW 214 (KAR)

Shaheed Ahmed v. Shankaranarayana Bhat

2008-04-01

MOHAN M.SHANTANAGOUDAR

body2008
JUDGMENT Mohan Shantanagoudar, J. This Appeal is filed by the claimant seeking enhancement of compensation awarded by the Tribunal below. 2. Heard the learned Advocates appearing on behalf of both parties and perused the material on record. 3. Due to the accident that occurred on 29.11.2004; the claimant appellant suffered comminuted segmental fracture of shaft upper 3rd right femur with posterior cruciate ligament injury on the right knee. The claimant was inpatient in Mallya Hospital for 11 days and he underwent two surgeries with internal fixations on 30.11.2004 and 10.12.2004. The Tribunal in all has awarded compensation of Rs.61,000/-. 4.The Tribunal has not awarded any compensation under the head of medical expenses on the ground that the claimant got reimbursement of the money spent by him for medical expenses under a Mediclaim policy. However, only an amount of Rs.5,000/- is awarded towards incidental expenses. 5. The consolidated medical bill issued by Mallya Hospital, Bangalore, found in records is for Rs.1,22,300/-. The said bill contains every detail of the expenses incurred by the claimant. The same is not disputed, consequently the same cannot be doubted. Thus, it Can be safely taken that the claimant has spent about Rs.1,22,300/- towards medical expenses. It has also come in the evidence of the claimant that he got reimbursement of the expenditure incurred by him from Royal Sundaram Insurance Company as Mediclaim insurance benefit. Merely because the claimant got reimbursement from Royal Sundaram Insurance Company as Mediclaim insurance benefit, he cannot be denied the compensation under the head of medical expenses from the respondent No.2-insurance company. The Mediclaim benefit paid to the claimant is under a contract of insurance entered into between the claimant and the Royal Sundaram Insurance Company (not a party to this proceeding), for which the claimant had paid premiums. Hence, non-awarding of money reimbursed to the claimant by Sundaram Insurance Company is impermissible as the Mediclaim reimbursement was made under the contract of insurance, for which, premiums have been paid by the claimant. It is purely a separate contract between the claimant and the Royal Sundaram Insurance Company, for which the respondent No.2-insurance company is not a party. Moreover, Royal Syndaram Insurance Company has not reimbursed the amount under Medi-claim Scheme free of cost. The claimant has paid for the same in the form of premiums prior to the accident. 6. It is purely a separate contract between the claimant and the Royal Sundaram Insurance Company, for which the respondent No.2-insurance company is not a party. Moreover, Royal Syndaram Insurance Company has not reimbursed the amount under Medi-claim Scheme free of cost. The claimant has paid for the same in the form of premiums prior to the accident. 6. The insurance money is by virtue of a contractual relationship between the deceased/injured and the insurance company and is payable to the legal heirs of the deceased/injured in terms of the contract. Such money cannot be said to have been received by the heirs/injured only on account of the accidental death of the deceased/accidental injuries of the claimant, but truly it is a fruit of the premium paid by the deceased during his life time/injured. The deceased/injured would have bought the insurance policy as an act of his prudence to confer benefit either to himself or to his heirs in case of death. In the case of Mediclaim policy, the amount is receivable by the claimant irrespective of accidental death or accidental injuries, even if the concerned person meets with the natural death or on the maturity of the insurance policy. So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing, the loss to the claimant of the “future pecuniary benefits” that would have accrued to him but for the death or accidental injuries, with the ‘pecuniary advantage’ which from whatever source comes to him by reason of the death/accidental injuries. In other words, it is the balancing of loss and gain of the claimant occasioned by the accident. But, this has to change its colour to the extent a statute intends to do. Thus, it has to be interpreted in the light of the provisions of Motor Vehicles Act. It is very clear that the Act delivers compensation to the claimant only on account of accidental injury or death and not on account of any other form of death. Thus, the ‘pecuniary advantage’ accruing in this Act has to be deciphered, correlating with the accidental death/injuries. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving motor vehicle, would not be covered under the Motor Vehicles Act. Thus, the ‘pecuniary advantage’ accruing in this Act has to be deciphered, correlating with the accidental death/injuries. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving motor vehicle, would not be covered under the Motor Vehicles Act. If the ‘pecuniary advantage’ resulting from death i.e., interpreted as pecuniary advantage coming under all forms of death, then it will include all the assets movable, immovable, shares, Bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets including what is bequeathed by the deceased etc., By such interpretation, the tortfeasor in spite of his wrongful act or negligence which contributes to the death, would have in many cases no liability or meagre liability to pay compensation. In my considered opinion, such interpretation goes against the spirit of the Motor Vehicles Act. Under Motor Vehicles Act, whatever, pecuniary advantage is received by the claimant from whatever source, would only mean which comes to the claimant on account of the accidental death/injuries only and not other form of death/illness. Thus, it would not include that which claimant receives on account of other forms of death/illness, which he would have received even apart trom accidental death/injuries. 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 accidental death or accidental injuries but also that would have come to the claimant even otherwise, could not be construed to be a ‘pecuniary advantage’, liable for deduction. Thus, the Mediclaim amount received by the claimant from Sundaram Insurance Company in this matter cannot be deducted from out of the total compensation to be paid to the claimant. 7. The amount received by the claimant herein under Mediclaim policy from Sundaram Insurance Company would not come within the periphery of Motor Vehicles Act to be termed as ‘pecuniary 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/injured) 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. The insured (deceased/injured) 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 Motor Vehicles Act is on account of injury accidental or accidental death, without making any contribution towards it If it is so, the fruits of the amount received through contribution of the insured cannot be deducted out of the amount receivable under Motor Vehicles Act. It is to be noted that the compensation payable under Motor Vehicles Act is statutory, while the amount receivable under the Life Insurance Policy or Mediclaim Policy is contractual. 8. The aforesaid view of mine is supported by the judgment of the Apex Court in the case of Helen C. Rebello and Others Vs. Maharashtra State Road Transport Corporation and Another, 1999 ACJ 10. The very view is taken by the Division Bench of this Court in the case of B. Parimala Vs. Riyaz Ahmed, 2002 ACJ 154 by the Division Bench of Allahabad High Court in the case of Leeka Gupta and Others Vs. State of U.P. and Others, 2005 ACJ 1739 , by the Full Bench of Punjab & Haryana High Court in the case of Bhagat Singh Sohan Singh Vs. Om Sharma and Others, 1983 ACJ 203 , by the Madhya Pradesh High Court in the case of Madhya Pradesh State Road Transport Corporation and Another Vs. Priyank, 2000 ACJ 701 , and Bombay High Court in the case of Vrajesh Navnitkak Desai Vs. Bagyam, 2007 ACJ 65, wherein it is held that deduction of amount of money reimbursed to the claimant by a different insurance company under a contract is not permissible. 9. However, where the employer insures his employee as against injury or death arising out an accident, any amount received out of such insurance on the happening of such incidence may be an amount liable for deduction. This is because, the employee receives the amount without his contribution. This is based on the principle that the claimant for the happening of the same incidence may not gain hence from two sources. 10. In view of the same, the deduction of Rs.1,22,000/. (Mediclaim insurance amount) paid to claimant from the total amount of compensation is unsustainable. This is because, the employee receives the amount without his contribution. This is based on the principle that the claimant for the happening of the same incidence may not gain hence from two sources. 10. In view of the same, the deduction of Rs.1,22,000/. (Mediclaim insurance amount) paid to claimant from the total amount of compensation is unsustainable. Therefore, the respondent No.2-insurance company is liable to pay the medical expenses spent by the claimant Accordingly, the claimant is awarded Rs.1,22,000/- towards medical expenses plus Rs.15,000/- towards conveyance, nourishment and other incidental expenses. 11. Having regard to the fact that the claimant underwent two operations with internal fixations and as the claimant has suffered comminuted segmental fracture of shaft upper third of right femur, he might have suffered lot of pain and agony. Hence, the “claimant is awarded Rs. 40,000/- under the head of injury, pain and agony. 12. The doctor has opined that the claimant has suffered 15% disability of the whole body. The same appears to be on the higher side. However, as could be seen from the evidence of the doctor, it is clear that there is restriction in the movement of right leg and he is unable to climb steps, difficulty to run, squat or sit cross legged. The claimant is a cable operator. ‘The claimant himself has admitted that even now he is getting income from the cable business. But, he cannot drive the vehicle. Having regard to the totality of the facts and circumstances, the claimant might have suffered 10% disability of the whole body. There is no concrete evidence with regard to probable loss of future income due to disability. But the fact remains that the claimant has suffered at least about 10% disability of the whole body. He has to be compensated for the same under the head of loss of future amenities of life. Rs. 40,000/- would be appropriate compensation under the same head. Accordingly, the same is awarded. 13. As the claimant has to undergo one more operation for removal of implants, he shall be awarded Rs.20,000/- towards future medical expenses. The amount of Rs.8,000/- awarded by the Tribunal towards loss of income during the laid up period is just and proper and the same is retained as it is. Thus, in all the claimant-appellant is entitled to total compensation of Rs.2,45,000/-. The amount of Rs.8,000/- awarded by the Tribunal towards loss of income during the laid up period is just and proper and the same is retained as it is. Thus, in all the claimant-appellant is entitled to total compensation of Rs.2,45,000/-. Accordingly, the following order is made: Award of the Tribunal is modified. The claimant-appellant is awarded total compensation of Rs.2,45,000/- (Rupees Two lakhs forty five thousand only), which is inclusive of the amount already awarded by the Tribunal, with 6% interest p.a. on the enhanced compensation from the date of petition till the date of realisation. Award shall be drawn accordingly. 50% of the award amount shall be deposited in any Nationalised Bank of the claimant’s choice for a period of three years. The claimant-appellant is at liberty to withdraw the accrued interest from time to time. The remaining amount shall be disbursed to the claimant-appellant. Appeal is allowed in part accordingly.