Karnataka High Court

The Oriental Insurance Co.Ltd vs Mr K S Nagesh on 17 May, 2022

Bench: J.M.Khazi

                               1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 17TH DAY OF MAY, 2022

                           BEFORE

              THE HON'BLE MS.JUSTICE J.M.KHAZI

               M.F.A.NO.10676 OF 2011 (MV)
BETWEEN:

THE ORIENTAL INSURANCE CO. LTD.,
REP. BY ITS MANAGER
DIVISIONAL OFFICE NO.2, NO.3,
KHENY BUILDING, 1ST FLOOR,
1ST CROSS, GANDHINAGAR
BANGALORE-09

REP: BY ITS REGIONAL OFFICE,
NO.44/45, 4TH FLOOR,
LEO SHOPPING COMPLEX,
REISDENCY ROAD,
BANGALORE - 560 025.
REPRESENTED BY ITS
REGIONAL MANAGER
                                           ... APPELLANT
(BY SRI. P.B. RAJU, ADVOCATE)
AND:

1.     MR. K.S. NAGESH
       S/O K.S. SUBBANNA,
       AGED ABOUT 56 YEARS,
       R/AT. NO.97, BHAGWAD VILASA
       DIWAKARANAGARA
       CHANNASANDRA
       BANGALORE - 61

2.     SMT. VANISHREE
       W/O. N.S.AJAY KUMAR,
       R/AT. NO.27/4/3, 4TH CROSS,
                                 2


      BRAMARAMBA EXTENSION
      CHAMARAJANAGARA
                                               ...RESPONDENTS
(SMT. BHUSHANI KUMAR, ADVOCATE FOR R1;
NOTICE TO R2 D/W V/O/D 22.04.2015)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED:
09.08.2011 PASSED IN MVC NO.3179/2010 ON THE FILE OF THE
MOTOR ACCIDENT CLAIMS TRIBUNAL BANGALORE (SCCH-17).
     THIS MFA HAVING BEEN HEARD AND RESERVED ON
02.03.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

This appeal is filed under Section 173(1) of the Motor

Vehicle Act, 1988 (hereinafter referred to as 'MV Act') by

respondent No.2 Insurance company challenging the quantum of

compensation granted to the petitioner in respect of injury

sustained by him in a motor vehicle accident dated 04.04.2010.

2. For the sake of convenience the parties are referred

to by their rank before the Tribunal.

3. FACTS: It is the case of the petitioner that on

04.04.2010, at about 7.30 p.m. petitioner was proceeding on

scooter bearing registration No.KA-01/S-1790 as a pillion rider

from Uttarahalli towards Channasandra. When they were near

Uttarahalli petrol bunk on Uttarahalli-Kengeri Main Road, a

Mahindra Bolero bearing registration No.KA-10/M-7868

(hereinafter referred to as offending vehicle), came in a high

speed, in rash or negligent manner and dashed against the

scooter. In the said accident, petitioner sustained grievous

injuries resulting in permanent partial disability. He took

treatment at D.G.Hospital and thereafter at Sagar Hospital and

also follow-up treatment at Bowring Hospital. Inspite of

prolonged treatment, petitioner is not completely cured. After

the accident, he cannot do the work as he used to and as such

suffering from loss of income. The jurisdictional police have filed

charge sheet against the driver of the offending vehicle. As

owner and insurer of the offending vehicle, respondents are

jointly and severally liable to pay the compensation.

4. Before the Tribunal, respondent No.1 remained

Ex-parte.

5. Respondent No.2 appeared and filed written

statement admitting the coverage of the offending vehicle as on

the date of accident, but its liability is subject to the terms and

conditions of the policy. There is breach of terms and conditions

of the policy. The driver of the offending vehicle was not holding

a valid and effective driving license. The age, occupation,

income, nature of the injury sustained, treatment taken, money

spent for the treatment and that the injuries have resulted in

disability are all denied.

6. Based on the pleadings, the Tribunal has framed the

necessary issues.

7. In support of his case, petitioner has examined

himself as PW-1 and three witnesses as PWs-2 to 4 and relied

upon Ex.P1 to 24.

8. Respondent No.2 has not led any evidence, but got

marked copy of the insurance policy as Ex.R1.

9. Vide impugned judgment and award, the Tribunal

has granted compensation in a sum of Rs.4,09,000/- as detailed

below:

                             Heads                            Amount
                                                               in Rs.
   Towards Pain and suffering                                     75,000
   Towards Medical expenses                                    2,55,000
   Towards Future Medical expenses                               15,000
   Towards loss of earnings                                      15,000
   Towards conveyance, attendant and nourishing food              9,000
   Towards discomfort, loss of amenities in life and future      40,000
   unhappiness
   TOTAL                                                      4,09,000





     10.   Challenging    the   quantum      of   the   compensation

respondent No.2 has come up with this appeal contending that

the compensation granted is on higher side. Out of the total

compensation, the Tribunal has granted Rs.2,55,000/- towards

medical expenses. As admitted by the petitioner, he has been

reimbursed with the expenses incurred for the treatment

through Mediclaim policy and as such the said amount is

inadmissible.

11. Neither petitioner nor respondent No.1 have not

challenged the impugned judgment and award and thereby the

findings of the Tribunal that accident occurred due to the rash or

negligent driving by the driver of the offending vehicle and that

in the said accident, petitioner sustained injuries resulting in

permanent partial disability and as such he is entitled for

compensation has attained finality.

12. The main challenge by respondent No.2 to the

impugned judgment and award is with regard to the

compensation granted in a sum of Rs.2,55,000/- towards

medical expenses on the ground that petitioner has received the

entire amount by way of Mediclaim and therefore he is not

entitled to claim again the same and thereby avail double

benefit. In this regard he has relied upon the decision of the

Hon'ble Division Bench of this Court in New India Assurance

company Vs. Manish Gupta1 (Manish Gupta's case),

wherein it is held that the medical expenses is classified as a

pecuniary loss. Pecuniary loss in its context means that the

actual amount which is spent by the claimant for treatment. If

the said amount is paid by insurer by Mediclaim policy, the

question of claimant claiming the very same amount for the very

same purpose, which is inclusive of the expenses which are

incurred by him for hospitalization and for his treatment does

not arise. Undoubtedly, if the amount which is received by the

claimant under the Mediclaim policy falls short of the actual

expenses expended by him, it is always open for him to claim

the difference of amount spent from the Tribunal. But however,

he cannot claim compensation under both the Mediclaim policy

as well as in the claim petition filed under the Act.

(2013) 1 Kar LJ 624 (DB) (MFA.No.6950/2007 c/w MFA.No.6952 and MFA.No.15422/2007 dated 11.10.2012)

13. Heard arguments of both sides and perused the

record.

14. In view of the Manish Gupta's case referred to

supra, it is to be examined whether the petitioner is entitled for

entire sum of Rs.2,55,000/- awarded under the head medical

expenses. If not what is the amount which he has received

under the Mediclaim which is required to be deducted out of this

sum.

15. In the appeal memo respondent No.2 has pleaded as

though petitioner has admitted that entire medical expenses

incurred by him is reimbursed by the Mediclaim. However,

during his cross-examination he has only admitted that out of

the entire expenses incurred by him towards medical expenses,

Rs.50,000/- has been reimbursed by the Mediclaim. This fact is

also forthcoming from Ex.P16 which is a certificate issued by the

D.G. Hospital stating that out of Rs.97,200/-, Rs.50,000/- is paid

by the company and Rs.47,200/- is borne by the petitioner.

16. However, during the course of the judgment, at

Para-17 the Tribunal has observed that out of the total amount

spent for medical treatment, Rs.1,19,000/- has been reimbursed

by way of Mediclaim. In fact during the course of arguments,

learned counsel for respondent No.2 has conceded that out of

Rs.2,55,000/- granted by the Tribunal, Rs.1,19,000/- is

reimbursed by the Mediclaim insurance and the said amount is

required to be deducted and the petitioner is not entitled for the

same. In view of this, out of Rs.2,55,000/- awarded by the

Tribunal, Rs.1,19,000/- received by the petitioner by way of

Mediclaim is required to be deducted. He is only entitled for

balance in a sum of Rs.1,36,000/- under the head medical

expenses.

17. Respondent No.2 has no serious challenge with

regard to the compensation granted under the remaining heads.

18. In the result the impugned judgment and award is

required to be modified by reducing the compensation by a sum

of Rs.1,19,000/- and consequently petitioner is entitled for

remaining amount of Rs.2,90,000/-.

19. In the result, the appeal deserves to be allowed in

part and accordingly, I proceed to pass the following:

ORDER

(i) Appeal filed by respondent No.2 is allowed in

part.

(ii) The petitioner is entitled for compensation in a

sum of Rs.2,90,000/- with interest at 6% p.a.

on Rs.2,75,000/- from the date of petition till

realization (i.e., petitioner is not entitled for

interest on Rs.15,000/- granted under the

head future medical expenses).