National Insurance Company Ltd. v. V.S. Bijumon, C.V. Mohanan, Sudheesh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932** **MACA.No. 1853 of 2010()** **-----------------------------------** **OPMV.3427/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** **....................** **APPELLANT(S):** **-----------------------** **NATIONAL INSURANCE COMPANY LTD., MALIAKAL BUILDINGS, MAIN ROAD, IRINJALAKUDA, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.** **BY ADV. SRI.LAL GEORGE** **RESPONDENT(S):** **-------------------------** **1. V.S.BIJUMON, AGED 30 YEARS, S/O.SIVADASAN,VARAKIL VEETIL HOUSE, MYLADUMPARA, P.O.PEECHI-680 653, TRISSUR DISTRICT.** **2. C.V.MOHANAN, S/O.VELAPPAN, CHERAKULAM HOUSE, P.O.NANDIKARA, TRISSUR DISTRICT-680 301.** **3. SUDHEESH, S/O.VASU, CHULLIPARAMBIL HOUSE, MOOTHRATHIKKARA DESOM, PARAPPUKKARA VILLAGE, TRISSUR DISTRICT, PIN-680 001.** **R1 BY ADV. SRI.T.C.SURESH MENON** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/12/2010, ALONG WITH CO.NO.107/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **MACA.NO. 1853/2010** ## **ORDER ON I.A.NO.2443/2010 IN MACA.NO. 1853/2010** ## **DISMISSED** **06/12/2010 SD/- M.N.KRISHNAN, JUDGE** **/TRUE COPY/ P.A.TO.JUDGE** **sts** ## **M.N. KRISHNAN, J.** **= = = = = = = = = = = = = = M.A.C.A. NO. 1853 OF 2010 & CROSS OBJECTION NO.107 OF 2010 = = = = = = = = = = = = = = = Dated this the 6[th] day of December, 2010.** **J U D G M E N T** This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thrissur in O.P.(MV)3427/03. The insurance company has come up in appeal challenging the refusal to reduce the amount which the claimant has obtained under the medi-claim policy. The cross objection is filed by the claimant for enhancement of the compensation. It is seen that the 2[nd] respondent in the claim petition is dead. But since I am going to deal with the substantial question of law and as none of his legal representatives has chosen to come on record or challenge the award, his name is deleted from the party array. It is so done because the insurance coverage is admitted. ## **M.A.C.A. NO. 1853 OF 2010 & CROSS OBJECTION NO.107 OF 2010** -:2:- 2. The short question that falls for determination when the amount under the Medical Insurance policy is received whether the claimant is again entitled to claim that amount from the tortfeasor. The learned counsel for the insurance company would contend it amounts to double payment and there will be unjust enrichment and therefore the claimants should not be granted that amount. On the contra the learned counsel for the claimant would contend that medical claim policy is altogether a different contract for which premium has been paid and it covers a wider field and therefore there cannot be any deduction from the amount. The learned counsel for the insurance company had cited two decisions, one reported in **United India Insurance Co. Ltd. v. Patricia Jean Mahajan (AIR 2002 S.C.2607)** and the other ## **M.A.C.A. NO. 1853 OF 2010 & CROSS OBJECTION NO.107 OF 2010** -:3:- reported in **Helen C. Rebello v. Maharashtra S.R.T.C. [(1999) 1 SCC 90]** . In those cases the Hon'ble Supreme Court was considering the question that when a person has assured his life by insurance and he meets with death and receives the amount under the policy whether that has to be deducted from the compensation that is liable to be paid under the M.V.Act. The Hon'ble Supreme Court held that in such cases it is an independent contract and irrespective of the question whether it is an accidental death or a natural death legal representatives will be entitled to claim the amount and therefore on that account deduction cannot be allowed. In (AIR 2002 S.C.2607) the Hon'ble Supreme Court held that, “From the above passage it is clear that the deductions are ## **M.A.C.A. NO. 1853 OF 2010 & CROSS OBJECTION NO.107 OF 2010** -:4:- admissible from the amount of compensation in case the claimant receives the benefit as a consequence of injuries sustained, which otherwise he would not have been entitled to.” Or in other words, in the decision referred to, i.e. reported in (AIR 2002 S.C.2607) the Hon'ble Supreme Court has held that suppose the amount which he has received is on account of the injuries sustained which was the _sine qua non_ for receiving the compensation, then again under the same head he cannot be compensated by the Tribunal for that amount. Now we will consider these aspects. 3. The first decision I find is the decision of the Madhya Pradesh High Court reported in **2000 ACJ 701 (Madhya Pradesh State Road Trans. Corpn. and another v. Priyank)** where ## **M.A.C.A. NO. 1853 OF 2010 & CROSS OBJECTION NO.107 OF 2010** -:5:- the question of deduction of the amount from medical claim was considered. The Division Bench of the Madhya Pradesh High Court negatived the contention holding that this amount could not be deducted as it was paid to the claimant under a contract of insurance for which he had paid premium. This was based upon a decision of the Full Bench of the same Court reported in **1983 ACJ 152.** In that decision the Full Bench considered various headings like life insurance, Provident Fund, Gratuity etc. and held with respect to the life insurance as follows. 4. If the deceased was entitled to the amount of insurance under a contract and for which he had paid premiums, the receipt of such an amount by the legal representatives is not deductible from the damages payable to them. The deceased had not insured himself and paid ## **M.A.C.A. NO. 1853 OF 2010 & CROSS OBJECTION NO.107 OF 2010** -:6:- premiums all the years during his life time for the benefit of the tortfeasors. This sum represents his thrift for his own benefit and for the benefit of his family. It was, therefore, not for the tortfeasor to seek any advantage out of this receipt.” 5. The Full Bench also considered English decisions and the principle and extracted the observations made by Lord Reid as follows. “As regards moneys coming to the plaintiff under a contract of insurance, I think that the real and substantial reason for disregarding them is that the plaintiff has bought them and that it would be unjust and unreasonable to hold that the money which he prudently spent on premiums and the benefit from it should enure to the benefit of the tortfeasor.” ## **M.A.C.A. NO. 1853 OF 2010 & CROSS OBJECTION NO.107 OF 2010** -:7:- 6. Now the learned counsel for the respondent had also cited a decision of the Karnataka High Court reported in **Shaheed Ahmed v. Shankaranarayanan Bhat (CDJ 2008 Kar High Court of Kerala 507)** . There the question for consideration was regarding the medical claim policy and the Karnataka High Court took the view that it cannot be deducted. Now it has to be understood that the medical claim policy is taken to cover the medical coverage for a particular period on account of the ailment one may suffer with certain conditions. A Mediclaim policy is not a pure accidental coverage. It is for the ailment of a person or for a disease of a person on payment of certain premium, the person is covered. When such a person gets an accidental injury and gets reimbursement, which goes without saying that during the period if he ## **M.A.C.A. NO. 1853 OF 2010 & CROSS OBJECTION NO.107 OF 2010** -:8:- again sustains another ailment or injury he will be out of coverage and therefore it cannot be said that once Mediclaim policy is given it will cover these accidental injuries as well and as held by the Courts the fundamental principle is a tortfeasor is not entitled to the benefit. Therefore by these discussions I hold that the insurance company is not entitled to get deduction of that amount from the compensation to be paid to the claimant. Therefore the appeal filed by the insurance company fails and it is dismissed. 7. So far as the cross objection is concerned the Tribunal has even calculated the disability without disability certificate and awarded a compensation. It had given the full medical expenses as well as reasonable amounts for pain and sufferings etc. An overall analysis ## **M.A.C.A. NO. 1853 OF 2010** **& CROSS OBJECTION NO.107 OF 2010** -:9:- would show that a just and reasonable compensation is granted and therefore the quantum also does not require any interference. Therefore the cross objection also fails and it is dismissed. In the result the appeal as well as the cross objections are dismissed. **M.N. KRISHNAN, JUDGE.** ul/-