Madras High Court

A.Anita vs B.Ibrahim on 29 March, 2023

                                                                             C.M.A.No.1368 of 2020


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 Dated: 29.03.2023

                                                      Coram:

                                     THE HONOURABLE MRS.JUSTICE N.MALA

                                              C.M.A.No. 1368 of 2020


                A.Anita
                                                                                  ...Appellant
                                                        Vs.
                1.B.Ibrahim
                2.The Divisional Manager,
                United India Insurance Company Limited,
                Vellore Branch, Vellore.
                                                                              ... Respondents

                Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor
                Accidents Claim Tribunal praying to set-aside the order and decree passed in
                M.C.O.P.No.197 of 2015 dated 31.01.2020 on the file of the Motor Accidents
                Claims Tribunal/Chief Judicial Magistrate, Vellore.


                          For Appellant : Mr.V.Pari Vallal
                          For R1        : Mr.G.Vinodh Kumar
                          For R2        : P.Sankaranarayanan




                Page No.1/9


https://www.mhc.tn.gov.in/judis
                                                                                      C.M.A.No.1368 of 2020




                                                      JUDGMENT

This appeal has been filed to set-aside the order and decree passed in

M.C.O.P.No.197 of 2015 dated 31.01.2020 on the file of the Motor Accidents

Claims Tribunal, Chief Judicial Magistrate, Vellore. The appeal is filed for

enhancement of compensation.

2. The facts of the case are that, on 15.10.2014, when the appellant was

returning home in a scooter, a motor cycle driven by the first respondent, in a rash

and negligent manner, came in the opposite direction and hit the appellant's

scooter, due to which, she sustained grievous injuries all over her body and taken

to the CMC Hospital for treatment. According to appellant, the accident occurred

only due to rash and negligent driving of the first respondent's vehicle, insured

with the second respondent/Insurance Company. The appellant therefore filed the

claim petition before the Claims Tribunal seeking compensation of Rs.32,00,000/-

(Thirty Two Lakhs only) for the injuries sustained by her in the accident.

3. The first respondent remained ex-parte before the Tribunal and the appeal

was contested only by the second respondent/Insurance Company.

Page No.2/9

https://www.mhc.tn.gov.in/judis C.M.A.No.1368 of 2020

4. The second respondent/Insurance Company denied all the allegations and

averments made in the claim petition and particularly stated that its driver was not

negligent. On the quantum of compensation, the second respondent/ Insurance

Company stated that the compensation claimed was exorbitant and highly

excessive. Therefore, second respondent/ Insurance Company prayed for the

dismissal of the claim petition.

5. Before the claims Tribunal, the appellant examined herself as P.W.1. and

marked Ex.P.1 to Ex.P.23. The second respondent did not examine any witness

but marked Ex.R.1 and Ex.R.2. The disability certificate was marked as Ex.C.1.

6. The Tribunal, on assessment of the entire materials available on record,

returned a finding of negligence against the driver of the second respondent/

Insurance Company. The Tribunal on an assessment of the evidence awarded a

sum of Rs.5,87,680/- along with 7.5% interest to the appellant and mulcted the

liability on the second respondent/Insurance Company. Not satisfied with the

compensation awarded by the Claims Tribunal, the appellant has filed the present

appeal seeking enhancement of compensation.

Page No.3/9

https://www.mhc.tn.gov.in/judis C.M.A.No.1368 of 2020

7. The learned counsel for the appellant submitted that the award of the

Tribunal under the various heads like "pain and sufferings", transport expenses

and medical bills was unsustainable. The learned counsel further submitted that

the Tribunal erred in deducting 70% of the Medical Bills to the tune of

Rs.6,34,745/-, on the ground that there was Family medical claim policy which

was paid to the appellant.

8. The learned counsel for the second respondent/Insurance Company, on

the other hand, submitted that the appellant is not entitled to the amount received

by her under the Medical claim policy, as there is no loss in that regard. The

learned counsel further submitted that the Award of the Tribunal under various

heads was just, reasonable and fair and needed no interference by this Court.

9. I have heard both the learned counsel for the appellant/claimant and the

learned counsel for the second respondent/Insurance Company and perused the

materials available on record.

Page No.4/9

https://www.mhc.tn.gov.in/judis C.M.A.No.1368 of 2020

10. As far as issue of reduction of 70% from the Medical Bills on the

ground of reimbursement of medical policy, is concerned, I am of the view that the

issue is no longer res integra. A Division Bench of this Court in C.M.A.No.2232

of 2015 in para 16 held as follows:-

"16. 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."

Therefore, there is absolutely no infirmity in the findings of the Tribunal on

the above aspect.

11. On the contention of the learned counsel for the appellant/claimant, as

regards the attendant charges, I am of the view that the appellant is entitled to

attendant charges. Considering the injuries suffered by the appellant/claimant and

the prolonged treatment undergone by her, a sum of Rs.15,000/- is awarded

Page No.5/9

https://www.mhc.tn.gov.in/judis C.M.A.No.1368 of 2020

towards attendant charges.

12. So also, with regard to the pain and suffering and Transport charges, I

am of the view that the appellant/claimant is entitled to additional amount of

Rs.25,000/- under the head pain and suffering and additional amount of

Rs.10,000/- towards Transport charges. In my view, in all, the appellant is entitled

to additional compensation of Rs.50,000/-.

13. In view of the above discussions, the award of the Tribunal is modified

as follows :-

                  S.No                Various Heads            Awarded by the      Awarded by this
                                                                 Tribunal              Court
                    1.     50% disability                   Rs.1,50,000          Rs.1,50,000
                    2.     Medical Expenses                 Rs.3,27,680          Rs.3,27,680
                    3.     Pain and Sufferings              Rs.50,000            Rs.75,000
                    4.     Nourishment Expenses             Rs.20,000            Rs.20,000
                    5.     Loss of Income                   Rs.30,000            Rs.30,000
                    6.     Transport Expenses               Rs.10,000            Rs.20,000
                    7.     Attender Charges                             -        Rs.15,000
                                            Total           Rs.5,87,680          Rs.6,37,680




                Page No.6/9


https://www.mhc.tn.gov.in/judis
                                                                                   C.M.A.No.1368 of 2020

14. In view of the foregoing reasons, the appeal is partly allowed. The

second respondent/Insurance Company is directed to deposit the enhanced

compensation now awarded along with accrued interest at 7.5% and costs, within

a period of six (6) weeks from the date of receipt of a copy of the order after

adjusting the amount, if any, already deposited. On such deposit being made, the

Tribunal is directed to credit the compensation to the Bank account of the claimant

by following the Division Bench decision of this Court vide order dated

11.03.2016 made in C.M.A.No.428 of 2016, reported in 2016(2) LW 561

(Madras) (Division Bench) in the case of The Divisional Manager, The Oriental

Insurance Co. Ltd., Kannur Vs. Rajesh & Others. Since the compensation is now

enhanced, the claimant is directed to pay necessary Court fee. There shall be no

order as to costs in the present appeal.