Calcutta High Court (Appellete Side)
Shriram General General ... vs Debanjan Banerjee & Another on 23 August, 2023
23.08.2023
Ct. 654
Supplementary
List Nos.1 to 2
KB
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURIDICTION
APPELLATE SIDE
F.M.A.T. 435 of 2021
Shriram General General Insurance Co. Ltd.
-Vs-
Debanjan Banerjee & Another
with
C.O.T. 12 of 2022
Debanjan Banerjee
-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 12 of 2022.
This appeal is preferred against the judgement
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. 137 of 2014 granting
compensation of Rs.11,81,000/- 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 Mitul Das 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 her colleague Mitul Das 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. 15,00,000/- together with interest
under section 166 of the Motor Vehicles Act, 1988.
The claimant-injured in order to establish his
case examined five 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.11,81,000/- 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 judgement and award
of the learned tribunal, the claimant-injured also filed a
Cross Objection, being C.O.T. 12 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. 12
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. 9,06,000/- 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, he
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 him and
such amount cannot be comprehended 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 he relies on the
decision of this Court passed in New India Assurance
Company Ltd. vs. Bimal Kumar Shah and Another
reported in 2018 (4) T.A.C. 226 (Cal.)
Upon hearing the leaned 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
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.9,06,000/- 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 him cannot be considered as a
benefit received and therefore question of victim being
doubly benefited does not and cannot arise. Following
the aforesaid proposition, the 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.17,59,139/- vide OD
Challan No. 487 dated 18th May, 2022 and also
statutory amount of Rs.25,000/-has been made to the
Registry of this Court vide OD Challan No. 709 dated 1st
October, 2021. Both the aforesaid deposits along 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.
Learned Registrar General, High Court, Calcutta
shall release the aforesaid amount 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.
Upon full satisfaction of the award, if any amount
is left over, the same shall be refunded to the insurance
company.
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.)
