Shriram General General ... vs Mitul Das & Another
2023 Latest Caselaw 5438 Cal

23.08.2023
Ct. 654
Sl. Nos. 6-7
    KB

                        IN THE HIGH COURT AT CALCUTTA
                          CIVIL APPELLATE JURIDICTION
                               APPELLATE SIDE

                              F.M.A. 732 of 2022
                   Shriram General General Insurance Co. Ltd.
                                      -Vs-
                              Mitul Das & Another
                                      with
                               C.O.T. 13 of 2022
                                  Mitul Das
                                     -Vs-
                 Shriram General General Insurance Co. Ltd. & Anr.


               Mr. Rajesh Singh
                             ... for the appellant-Insurance Company

               Mr. Jayanta Banerjee
               Mr. Sandip Bandyopadhyay
                             ... for the respondents-claimants and

Cross Objector in COT 13 of 2022.

This appeal is preferred against the judgment and

award dated 10th March, 2021 passed by Learned

Additional District Judge cum Judge, Motor Accident

Claims Tribunal, Fast Track 2nd Court, Paschim

Medinipur in M.A.C. Case No. 136 of 2014 granting

compensation of Rs.10,35,000/- together with interest

in favour of the claimant-injured under Section 166 of

the Motor Vehicles Act, 1988.

The brief fact of this case is that on 7th December,

2013 at about 1.05 P.M. while the victim along with his

colleague Debanjan Banerjee was proceeding to

Chandipur from his office at Tamluk on a motor cycle

bearing registration no. WB-34S/9723 through the

Digha-Mechada Road and when they reached near

Brindabanpur Bus stoppage at that time offending

vehicle bearing registration no. WB-11A/5930 (Bus)

dashed the said motor cycle in a rash and negligent

manner from the opposite direction, as a result of which

the victim and his colleague Debanjan Baanerjee

received fracture injuries. Immediately the victim was

admitted to local hospital wherefrom he was referred to

District Hospital at Tamluk. Due to his serious injuries

he was taken to Sanjiban Hospital, Phuleswar,

Uluberia, District - Howrah. Further the victim was

shifted to Bellevue Clinic, Kolkata and thereafter to

Apollo Gleneagles Hospital, Kolkata. The victim due to

the injuries received in the said accident sustained

disablement. On account of injuries sustained and the

subsequent disablement, the victim filed application for

compensation of Rs. 14,00,000/- together with interest

under Section 166 of the Motor Vehicles Act, 1988.

The claimant-injured in order to establish his

case examined four witnesses and produced document

which have been marked as Exhibit 1 to 14 series

respectively.

The appellant-insurance company did not adduce

any evidence.

Since the respondent no.2-owner of the offending

vehicle did not contest the claim application, service of

notice of appeal upon the said respondent stands

dispensed with.

Upon considering the materials on record and

evidence adduced on behalf of the claimant-injured, the

learned tribunal granted compensation of

Rs.10,35,000/- together with interest in favour of the

claimant-injured under Section 166 of the Motor

Vehicles Act, 1988.

Being aggrieved by and dissatisfied with the

impugned judgement and award of the learned tribunal,

the insurance company has preferred the present

appeal.

Challenging the impugned judgment and award of

the learned tribunal, the claimant-injured also filed a

Cross Objection, being C.O.T. 13 of 2022.

At the time of hearing of the appeal, Mr. Jayanta

Banerjee, learned advocate for the respondent no.1-

claimant submits for withdrawal of the Cross Objection.

Accordingly, the Cross Objection being C.O.T. 13

of 2022 stands dismissed as withdrawn.

Mr. Rajesh Singh, learned advocate for appellant-

insurance company submits that the learned tribunal

has allowed an amount of Rs.7,60,000/- towards

medical expenses. However, it failed to take into

account that such medical expenses have been already

reimbursed through mediclaim and therefore allowing

such medical expenses amounts to double benefit

which should not be extended to the claimant. He also

challenges the amount granted towards non-pecuniary

damages. In the light of his aforesaid submission, she

prays for modification of the impugned judgement and

award.

Mr. Jayanta Banerjee, learned advocate for

respondent no.1-claimant (injured) in reply submits

that the mediclaim is the money received by a victim of

an accident as a return of money invested by her and

such amount cannot be comprehend as a benefit

received and therefore the question of deduction of

mediclaim received by claimant does not and cannot

arise at all. To buttress his contention she relies on the

decision of this Hon'ble Court passed in New India

Assurance Company Ltd. versus Bimal Kumar Shah

and Another reported in 2018 (4) T.A.C. 226 (Cal.).

Upon hearing the learned advocates for respective

parties, following issues have fallen for consideration.

Firstly, whether the money received by the victim upon

settlement of his mediclaim policy, prior to the passing

of the impugned award should be deducted from the

compensation determined to be payable to him under

the head of reimbursement of medical expenses and

secondly, whether the learned Tribunal erred in

granting non-pecuniary damages.

Admittedly, the reimbursement of the medical

expenses of Rs. 7,60,000/- has been made under the

mediclaim. This Court in Bimal Kumar Shah (supra) has

held that the money received by the victim as return for

money invested by her cannot be considered as a

benefit received and therefore question of victim being

doubly benefited does not and cannot arise. Following

the aforesaid proposition, it is found that argument

advanced in this regard by the insurance company fall

short of merit.

So far as non-pecuniary damages are concerned,

it is found that the victim due to injuries in the accident

was admitted to the hospital for a considerable period.

Considering the extent of hospitalisation and the

injuries sustained, the amount granted under the head

of non-pecuniary damages does not call for interference.

Accordingly, the appeal stands dismissed. The

impugned judgment and award of the learned tribunal

is affirmed. No order as to costs.

It is found that the insurance company has

already deposited an amount of Rs.10,35,000/- vide OD

Challan No. 488 dated 18th May, 2022 and also

statutory amount of Rs.25,000/-has been paid to the

Registry of this Court vide OD Challan No. 267 dated

28th July, 2021. The aforesaid deposit of

Rs.10,35,000/- together with accrued interest be

released in favour of the claimant-injured.

Claimant-injured is directed to deposit ad valorem

court fees on the compensation amount, if not already

paid.

Appellant-insurance company is directed to

deposit interest @ 6% per annum on the compensation

amount of Rs.10,35,000/- from the date of filing of the

claim application till date of deposit (18.05.2022) before

the Registrar General, High Court, Calcutta. The

statutory deposit of Rs. 25,000/- together with accrued

interest be adjusted against the amount of interest on

compensation as above.

Upon deposit of the interest on compensation,

learned Registrar General, High Court, Calcutta shall

release the same along with aforesaid amount already

deposited together with accrued interest in favour of the

claimant-injured upon satisfaction of his identity and

payment of ad valorem court fees, if not already paid.

With the aforesaid observations, the present

appeal and cross-objection stand disposed of.

All connected applications, if any, are also

disposed of.

Interim order, if any, stands vacated.

Urgent certified photocopy of this order, if applied

for, be supplied to the parties expeditiously upon

compliance of usual legal formalities.

( Bivas Pattanayak, J.)