Madras High Court
New India Assurance Co. Ltd vs R.Ramesh on 1 February, 2021
C.M.A.Nos.1767 of 2020 & 35 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A. Nos.1767 of 2020 & 35 of 2021
and C.M.P.No.12969 of 2020
C.M.A.No.1767 of 2020
1.New India Assurance Co. Ltd.,
having its branch office at,
81/3, 1st Floor, Raja Indane Gas Building,
Ingoor Road, Mugasipidariyur,
Chennimalai, Perundurai Taluk,
Erode 638 051.
2.New India Assurance Co. Ltd.,
Divisional Office, 1st Floor,
Amman Complex,
No.1360, EVN Road,
Erode 638 011. .. Appellants
Vs.
1.R.Ramesh
2.K.Loganathan
3.R.Gunasekaran .. Respondents
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C.M.A.Nos.1767 of 2020 & 35 of 2021
C.M.A.No.35 of 2021
R.Gunasekaran .. Appellant
Vs.
1.R.Ramesh
2.K.Loganathan
3.New India Assurance Co. Ltd.,
having its branch office at,
81/3, 1st Floor, Raja Indane Gas Building,
Ingoor Road, Mugasipidariyur,
Chennimalai, Perundurai Taluk,
Erode 638 051.
4.New India Assurance Co. Ltd.,
Divisional Office, 1st Floor,
Amman Complex,
No.1360, EVN Road,
Erode 638 011. .. Respondents
Common Prayer: These Civil Miscellaneous Appeals are filed under Section
173 of Motor Vehicles Act, 1988, against the award dated 19.02.2020, made
in M.C.O.P. No.192 of 2018, on the file of the Special Sub Court, (Motor
Accident Claims Tribunal), Erode.
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C.M.A.Nos.1767 of 2020 & 35 of 2021
(In C.M.A.No.1767/2020)
For Appellants : M/s.S.R.Sumathy
For Respondents : Mr.R.Nalliyappan (for R3)
(In C.M.A.No.35/2021)
For Appellant : Mr.R.Nalliyappan
For Respondents : M/s.S.R.Sumathy (For R3 & R4)
COMMON JUDGMENT
The matter is heard through "Video Conferencing".
C.M.A. No.35 of 2021 is filed for enhancement of the compensation
and C.M.A. No.1767 of 2020 is filed to set aside the award dated 19.02.2020,
made in M.C.O.P. No.192 of 2018, on the file of the Special Sub Court,
(Motor Accident Claims Tribunal), Erode.
2.Both the appeals arise out of the same accident and same award and
hence, they are disposed of by this common judgment.
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C.M.A.Nos.1767 of 2020 & 35 of 2021
3.The parties are referred to as per their rank in the claim petition, for
the sake of convenience.
4.The claimant filed M.C.O.P. No.192 of 2018, on the file of the
Special Sub Court, (Motor Accident Claims Tribunal), Erode, claiming a sum
of Rs.10,00,000/- as compensation for the injuries sustained by him in the
accident that took place on 22.01.2018.
5.According to the claimant, on the date of accident, when he was
riding his Motorcycle bearing Registration No.TN-36-AS-0670 on
Perumanallur to Perundurai N.H.544 bye-pass road from West to East
direction at left side of the road, while proceeding near Vijayamangalam
Vaipadi Pirivu, the 1st respondent drove the Eicher Van bearing Registration
No.TN-23-3432 belonging to the 2nd respondent from South to North
direction in a rash and negligent manner and dashed against the Motorcycle
rode by the claimant and caused the accident. In the accident, the claimant
sustained multiple fractures and grievous injuries all over the body. The
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C.M.A.Nos.1767 of 2020 & 35 of 2021
accident occurred only due to rash and negligent driving by the driver of the
Eicher Van belonging to the 2nd respondent and hence, the claimant filed the
claim petition, claiming compensation against the respondents as driver,
owner and insurer of the said vehicle respectively.
6.The respondents 1 and 2 remained exparte before the Tribunal.
7.The 4th respondent-Insurance Company filed counter statement and
denied all the averments made by the claimant in the claim petition, which
was also adopted by the 3rd respondent-Insurance Company. According to the
4th respondent, the accident occurred when the 1st respondent who was driving
the Eicher Van slowly and cautiously observing all the traffic rules on the
South to North road, from Vaipadi and entering into Vijayamangalam road,
the claimant who was riding the Motorcycle without reducing the
uncontrollable speed, failed to notice the Eicher Van and dashed the
Motorcycle on the left side of the Van and invited the accident, without
giving any opportunity to the 1st respondent to avert the collision. The
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accident occurred solely due to rash and negligent riding of Motorcycle by
the claimant, without wearing helmet. Hence, maximum percentage of
liability may be fastened upon the claimant and prayed for dismissal of the
claim petition.
8.Before the Tribunal, the claimant examined himself as P.W.1,
examined Dr.Kesavamoorthy as P.W.2 and marked 21 documents as Exs.P1 to
P21. The respondents did not let in any oral and documentary evidence. The
disability certificate issued by the Medical Board was marked as Ex.C1.
9.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
driving by the 1st respondent, driver of the Eicher Van belonging to the 2nd
respondent and directed the respondents 3 and 4 as insurer of the said vehicle
to pay a sum of Rs.6,06,000/- as compensation to the claimant.
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C.M.A.Nos.1767 of 2020 & 35 of 2021
10.To set aside the said award dated 19.02.2020, made in M.C.O.P.
No.192 of 2018, the respondents 3 and 4 - Insurance Companies filed C.M.A.
No.1767 of 2020 and not being satisfied with the amounts awarded by the
Tribunal, the claimant has filed C.M.A.No.35 of 2021, for enhancement of
compensation.
11.The learned counsel appearing for the claimant contended that the
claimant suffered fracture of right leg knee and ankle and disability. He was
referred to the Medical Board and the Medical Board assessed that the
claimant suffered 60% disability. At the time of accident, he was working as a
Medical Representative and was earning a sum of Rs.42,000/- per month.
Due to the injuries and disability suffered, he could not discharge his duties
as he was doing earlier. The Tribunal ought to have granted compensation by
adopting multiplier method. The amounts granted by the Tribunal under
different heads are meagre. The Tribunal failed to grant compensation for loss
of income and loss of marital prospects and prayed for dismissal of
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C.M.A.No.1767 of 2020 filed by the respondents 3 and 4-Insurance
Companies and for enhancement of the compensation.
12.Per contra, the learned counsel appearing for the respondents 3 and
4 contended that claimant admitted that he is continuing his work and there is
no loss of income. The Tribunal considering the disability certificate
produced by the claimant, granted compensation by adopting percentage
method. There is no loss of earning capacity. In view of the same, the
claimant is not entitled to compensation by adopting multiplier method. The
claimant has not made out any case for enhancement of the compensation.
The learned counsel appearing for the respondents 3 and 4 further contended
that though the compensation granted by the Tribunal is excessive, the
respondents 3 and 4 restrict their appeal with regard to grant of compensation
towards medical expenses and contended that claimant availed the
reimbursement of a sum of Rs.1,90,370/- through Mediclaim policy. The
Tribunal ought to have deducted the said sum of Rs.1,90,370/- while granting
compensation towards medical expenses and relied on the judgment of the
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Division Bench of this Court dated 06.10.2015 made in C.M.A.No.2232 of
2015 [Royal Sundaram Alliance Insurance Co. Ltd., Vs. M.Satya Rao and
another] and prayed for setting aside the award of the Tribunal and
dismissing C.M.A.No.35 of 2021 filed by the claimant for enhancement.
13.Heard the learned counsel appearing for the claimant as well as the
respondents 3 and 4 – Insurance Companies and perused the materials
available on record.
14.It is the case of the claimant that he suffered injuries and has taken
treatment as inpatient at KMCH, Coimbatore in two different spells viz., from
16.04.2018 to 19.04.2018 and from 08.05.2018 to 16.05.2018 and he
underwent surgery. He was referred to the Medical Board. The Medical Board
examined the claimant and certified that he suffered 60% disability. The
claimant examined the Doctor who treated him as P.W.2, to prove the injuries
and disability suffered by him. The Tribunal considering the evidence of
claimant as P.W.1, evidence of Doctor as P.W.2 and admission of claimant
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that he is continuing his work and there is no loss of income or loss of
earning capacity, awarded compensation by adopting percentage method. In
view of no loss of earning power, the claimant is not entitled to compensation
by adopting multiplier method and the percentage method adopted by the
Tribunal is in order. The Tribunal awarded a sum of Rs.1,80,000/- towards
disability at the rate of Rs.3,000/- per percentage for 60% disability. This
Court by the judgment reported in 2020 (1) TN MAC 617 [M. Chinnathambi
Vs. S.Deepa and another], fixed a sum of Rs.4,000/- per percentage of
disability for the accident occurred in the year 2014 & 2015 and a sum of
Rs.5,000/- per percentage of disability for the accident occurred from the year
2016 onwards, due to raise in cost of living. In the present case, the accident
is of the year 2018. In view of the same, a sum of Rs.5,000/- is awarded per
percentage of disability. Hence, the amount awarded by the Tribunal towards
disability is enhanced to Rs.3,00,000/- [Rs.5,000/- x 60%], at the rate of
Rs.5,000/- per percentage for 60% disability. Considering the nature of
injuries and treatment taken, the meagre amounts granted by the Tribunal
towards attendant charges and extra nourishment are enhanced to Rs.20,000/-
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each. The Tribunal has not granted any amount for loss of amenities. For the
injuries sustained in the accident, the claimant would have suffered
inconvenience. Hence, a sum of Rs.30,000/- is awarded towards loss of
amenities.
15.It is the case of the respondents 3 and 4 in the appeal that the
claimant got reimbursement of Rs.1,90,370/- under the Mediclaim policy and
the Tribunal failed to deduct the same from the compensation awarded
towards medical expenses. From the award of the Tribunal it is seen that the
claimant has admitted that he availed reimbursement of Rs.1,90,370/- from
the Star Health Insurance. As per the judgment of the Division Bench of the
Kerala High Court reported in 2016 ACJ 807 [National Insurance Co. Ltd.,
Vs. Akber Badsha and others], the claimant is not entitled to the said sum of
Rs.1,90,370/-, under the head, medical expenses, which has been reimbursed
by the Star Health Insurance. The Division Bench of the Kerala High Court,
after considering the judgments on this issue in paragraph nos.12, 15 and 17,
held as follows:
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“12. These aspects were infact considered by a Division
Bench of the Karnataka High Court pursuant to the reference
made, doubting the decision rendered by a Single Bench of the
Karnataka High Court in Shaheed Ahmed v. Sankaranarayana
Bhat (ILR 2008 Karnataka 3277). It was accordingly held by the
Bench in the New India Assurance Company Limited v. Manish
Gupta [2013 (1) Karnataka Law Journal 624] explaining the
significant difference in between and observing that the very
concept of insurance is not to extend any unlawful enrichment to
anybody in respect of the very same cause of action. The purpose
of insurance is only to place the party to the same level from
where he suffered the downfall because of the contingency
occurred. The observations made by the Division Bench of the
Karnataka High Court in paragraphs 18, 19, 20 and 22 are in
the following terms:
18. The tests to be applied for determining “the
‘pecuniary advantage’ which has to be deducted
from the amount of compensation in a case of
death are:
(1) Onus is on the insurer to establish that some
pecuniary benefit or reasonable expectation of
pecuniary benefit to the claimants, is resulting
from the death of the deceased.
(2) Damages to be awarded to the claimants are
compensatory and not punitive. Therefore, the test
that no advantage should accrue to the wrong doer
would not be applicable.
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(3) Where death has merely accelerated the receipt
of benefits, which the claimants would have in any
case, received at some future date in such cases
pecuniary benefits come to the claimants not by
reason of the death. The pecuniary advantage
received by the claimants is the advantage gained
by acceleration of their interest.
(4) Benefits received from the employer in some
cases may be held to come to the claimants by
reason of death. But, if the benefits are shown to
have been received merely out of consideration for
these claimants, e.g., contributions by co-workers
to relieve the needs of the claimants, then such
benefits cannot be held to have been received
merely by reason of death of the deceased.
(5) Lastly, if there is any doubt as to whether the
balancing principle extends to any class of benefit
not covered by any binding authority, the doubt
has to be resolved in favour of the claimants
inasmuch as in such a case the defendant must be
held to have failed to discharge the burden placed
on him to justify such deduction.
19. With reference to the deductions under the
Mediclaim, a Division Bench of the Madhya
Pradesh High Court in the case of Madhya
Pradesh State Road Transport
Corporation v. Priyank reported in 2000 ACJ 701,
placing reliance on the full Bench decision has
observed that the amount received by the insured
under the Mediclaim Policy is not deductible
inasmuch as the claimant has received these
amount under the contract of insurance, for which
had paid premium. We are unable to persuade
ourselves agree to the opinion rendered by the
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Division Bench of the Madhya Pradesh High
Court, moreso having regard to the fact that the
Full Bench had ruled and classified as to what are
the amounts, which are deductible and the
amounts which are not deductible.
20. Indeed an injured person cannot claim benefit
out of his own misfortune. He cannot claim
medical expenses under the Mediclaim policy and
also claim damages in the nature of amount
expended for medical treatment under the claim
petition, which is filed under the Motor Vehicles
Act. In similar, if not identical circumstances, a
Division Bench of this court in the case
of Karnataka State Road Transport
Corporations v. Anantharam Singh reported in ILR
1996 KAR 1088 has observed that once a claim is
satisfied with respect to the damages caused to the
car by the insurer, the question of the owner of the
car claiming damages as against the tort - feasor
before the Claims Tribunal does not arise
inasmuch as the cost of repair having been already
recovered through the insurer, the claimant or the
owner of the case cannot claim compensation
under the claim petition filed under the Act. It is
useful to extract the observations made by the
Division Bench, which would read as under:
(xx xx xxx--omitted)
22. In the case on hand, the facts are almost
similar. It is not in dispute that in all the claim
petitions, the claimants had taken the Mediclaim
Policies and they have claimed the amount under
the policy. We are of the view that the question of
the claimants claiming compensation in the claim
petition, which is filed under the Act for the
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amount expended by them for the treatment,
certainly cannot be granted. The medical expenses
as observed, is classified as a pecuniary loss.
Pecuniary loss in its context means that the actual
amount, which is expended by the claimant for
treatment. If the said amount has been paid by the
insurer under the Mediclaim policy, the question of
the claimant claiming the very same amount for
the very same purpose, which is inclusive of the
expenses, which are incurred by him for the
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 the claim petition
filed under the Act. The decision of the Apex Court
in Hellen C. Rebello's case was in respect of the
Life Insurance Policy and not in respect of a
Mediclaim Policy and therefore the said decision
is distinguishable.”
........................
15. In the instant case, both the policies have been issued
by one and the same Insurance Company. According to the
learned Counsel for the Insurance Company, the mischief was
brought to light only when the claimant was required to produce
the original bills before the Tribunal so as to sustain the claim;
when he had to produce a certificate issued by the Insurer as
Ext.A8, to the effect that a sum of Rs. 78418/- (as claimed in the
claim petition before the MACT) had already been obtained by
him on producing the original bills before the Insurance
Company under the Mediclaim Policy. It was in the said
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circumstance that the said amount was sought to be set off.
....................
17. The remaining aspect is with regard to the ‘premium’
already satisfied by the party for obtaining the ‘Mediclaim
Policy’ as mentioned above. The learned Counsel for the
appellant Insurance Company submits that no contingency, as
apprehended has taken place as there was no case for the
claimant at any point of time during the subsistence of the
policy, that any claim preferred before the Insurance Company
was declined or restricted to a lesser extent, referring to
satisfaction of the amount towards medical bills in respect of the
injuries sustained in the road traffic accident. Still, it is stated by
the learned Counsel for the Insurance Company that the
Company is ready to give credit to the ‘premium’ satisfied by the
claimant for obtaining the ‘Mediclaim policy’ during the
relevant year which amount could be treated as an expense and
claimed before the Tribunal.”
16.The very same issue came up for consideration before the Division
Bench of this Court in C.M.A.No.2232 of 2015. The Division Bench
considered the following judgments:
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a) 2013 ACJ 2366 (New Delhi) [Bazaz Alliance General Insurance
Company Limited Vs. Ganapat Rai Sehgal]
b) 2013 ACJ 1437 [Cholamandalam MS General Insurance
Company Ltd., Vs. A.Saravanan and another]
c) 2013 ACJ 2382 [National Insurance Company Ltd., Vs. Deepmala
Geol]
d) 2013 ACJ 2609 [National Insurance Company Ltd., Vs. R.K.Jain]
e) 2014 ACJ 1674 (Madras Bench) [National Insurance Company
Ltd., Vs. C.RAmesh Babu]
f) 1999 ACJ 10 (SC) [Helen C. Robello Vs. Maharashtra State Road
Transport Corporation Ltd.,]
g) AIR 1995 SC 755 [R.D.Hattangadi Vs. Pest Control (India) Pvt.
Ltd.,]
h) 2002 ACJ 1441 [United India Insurance Co. Ltd., Vs. Patricia
Jean Mahajan]
After considering the above judgments, the Division Bench of this Court, by
the judgment dated 06.10.2015, in C.M.A.No.2232 of 2015, held that if
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claimants have received reimbursement under the Mediclaim Policy, the same
has to be deducted from the medical expenses claimed under the Motor
Vehicles Act. In paragraph Nos.16, 18 and 19, it has held as follows:
“16. As rightly contended by the appellant, the claim for
medical expenses is not like LIC, where premium is paid by the
insured, and on maturity, the sum assured under the policy is repaid
with dividend to the assured, or in the case of death prior to maturity,
paid to the legal representatives of the assured; and whereas,
mediclaim or medical expenses are reimbursed to the surviving
injured and to the legal representatives of the deceased, in case of
death. Life insurance policy is by a contract of insurance is repayable
in case of survival or death and that in case of mediclaim policy,
reimbursement is made by the insurer. In the case of mediclaim,
reimbursement of medical expenditure can be sought for, against the
insurer of mediclaim policy, for the actual expenditure incurred, and
if the said insurer reimburses the expenses incurred by the insured or
the legal representatives of the deceased, then, the surviving victim or
the legal representatives cannot seek for reimbursement of the very
same expenditure from the tortfeasor or the insurer of the offending
vehicle, as it would amount to double payment under the head
'medical expenditure'.
...............
18. Amounts received under the head, medical expenses or
reimbursed, has to be set off, while estimating the actual monetary
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loss and consequently, the ultimate quantum of compensation. Even in
Helen Rebello's case (cited supra), the Hon'ble Supreme Court has
observed that where the employer insurers his employee, as against
injury or death arising out of an accident, any amount received out of
such insurance on the happening of such incidence may be an amount
liable for deduction. Thus, even in Helen Rebello's case (cited supra),
a distinction between Life Insurance Policy and other Insurance
Policy, taken by the employer for his employee, has been taken note
of. When the injured has already been reimbursed by the employer of
his son for the medical expenses incurred, can it be still contended
that there was a pecuniary loss? Can it be claimed from the insurer of
the offending vehicle, as if it was spent by him? and thus there was a
monetary loss to be compensated. In the light of the above discussion,
we are of the considered view that the claimant/injured is entitled only
to the amount spent and suffered as monetary loss.
19. In the case on hand, the injured has not incurred any
monetary loss, as the employer of the son of the injured has paid the
hospital and medical charges, under the policy of the employee. While
that is the fact situation, the claim of the respondent/claimant under
the head, medical expenses, would be an amount, which has not been
expended by him. Though it is claimed that the employee pays a
separate premium under the mediclaim policy and that, a contention
can be made that it is separate contract with the insurer, not being the
insurer of the tortfeasor, against whom a claim for compensation is
made, but when the expenses incurred have been reimbursed, it
cannot be said that the claimant has suffered any pecuniary loss on
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account of the expenses incurred for the injuries and treatment.”
17.The claimant is entitled to compensation for the amounts spent for
medical treatment. But, if he has already got reimbursement under Mediclaim
policy, he is not entitled to compensation again towards medical expenses.
The payment under Mediclaim policy as well as the Motor Vehicles Act for
the medical expenses will amount to double payment for the very same
medical expenses. It is for the claimant to choose to claim compensation
either under Mediclaim policy or under provisions of the Motor Vehicles Act.
If amount received under Mediclaim policy is less than the amount actually
spent for medical expenses, the claimant is entitled to only the balance
amounts. In the present case, the claimant spent Rs.2,84,000/- towards
medical expenses, but got only a sum of Rs.1,90,370/- as reimbursement from
the Star Health Insurance under the Mediclaim policy. The claimant is
entitled to the sum of Rs.93,630/- towards medical expenses. The Tribunal
without properly considering the materials produced by the claimant,
erroneously granted the entire amount of Rs.2,84,000/- towards medical
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expenses. The same is reduced to Rs.93,630/- [Rs.2,84,000 – Rs.1,90,370].
The Division Bench judgment of this Court dated 06.10.2015 made in
C.M.A.No.2232 of 2015 relied on by the learned counsel appearing for the
respondents 3 and 4 – Insurance Company is squarely applicable to the facts
of the case.
18.At the time of accident, the claimant was working as a Medical
Representative and was earning a sum of Rs.42,000/- per month. He failed to
prove the same. The Tribunal failed to award any amount towards loss of
income. The accident is of the year 2018. Considering the year of accident
and nature of work, a sum of Rs.15,000/- per month is fixed as notional
income of the claimant. Due to the injuries sustained in the accident, the
claimant would not have worked atleast for a period of three months. Hence,
a sum of Rs.45,000/- [Rs.15,000/- x 3 months] is awarded towards loss of
income, at the rate of Rs.15,000/- per month for 3 months. The amounts
granted by the Tribunal under other heads are just and reasonable and hence,
the same are hereby confirmed. Thus, the compensation awarded by the
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Tribunal is modified as follows:
S. No Description Amount awarded Amount Award
by Tribunal awarded by this confirmed or
(Rs) Court (Rs) enhanced or
granted
1. Loss of income - 45,000/- Granted
2. Transportation 20,000/- 20,000/- Confirmed
3. Extra nourishment 10,000/- 20,000/- Enhanced
4. Attendant charges 10,000/- 20,000/- Enhanced
5. Damage to clothes 2,000/- 2,000/- Confirmed
6. Medical expenses 2,84,000/- 93,630/- Reduced
7. Pain and sufferings 1,00,000/- 1,00,000/- Confirmed
8. Disability 1,80,000/- 3,00,000/- Enhanced
9. Loss of amenities - 30,000/- Granted
Total 6,06,000/- 6,30,630/- Enhanced by
Rs.24,630/-
19.In the result, C.M.A.No.1767/2020 filed by the Insurance Company
is partly allowed in respect of the head, medical expenses and
C.M.A.No.35/2021 filed by the claimants is partly allowed. The amount
awarded by the Tribunal at Rs.6,06,000/- is enhanced to Rs.6,30,630/- along
with interest at the rate of 7.5% per annum from the date of petition till the
date of deposit. The respondents 3 and 4 are directed to deposit the award
amount now determined by this Court along with interest and costs, less the
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amount already deposited, if any, within a period of six weeks from the date
of receipt of a copy of this judgment, to the credit of M.C.O.P.No.192 of
2018. On such deposit, the claimant is permitted to withdraw the award
amount, now determined by this Court alongwith interest and costs, after
adjusting the amount, if any, already withdrawn, by filing necessary
applications before the Tribunal. Consequently, connected Miscellaneous
Petition is closed. No costs.
01.02.2021
Index : Yes
Speaking Order : Yes
gsa
To
1.The Special Subordinate Judge,
(Motor Accident Claims Tribunal),
Erode.
2.The Section Officer,
V.R Section,
High Court, Madras.
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V.M.VELUMANI, J.,
gsa
C.M.A. Nos.1767 of 2020 & 35 of 2021
01.02.2021
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