IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Transcription

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE ON THE 13 TH DAY OF OCTOBER, 2014 BEFORE THE HON BLE MR JUSTICE K L MANJUNATH AND THE HON BLE MR JUSTICE RAVI MALIMATH Miscellaneous First Appeal No of 2012 (MV-INS) C/w Miscellaneous First Appeal No of 2012 (MV-GEN/DB-INJ) IN MFA NO. 8451/2012 BETWEEN: ANDHRA PRADESH STATE ROAD TRANSPORT CORPORATION CENTRAL OFFICE MUSHIRABAD, HYDERABAD ANDHRA PRADESH REP. BY ITS MANAGING DIRECTOR APPELLANT AND: [By Sri D Vijaya Kumar, Adv.] SRI RATHNAKAR S/O LATE P RAMA RAO AGED ABOUT 48 YEARS R/O NO. 166, 1 ST CROSS SUBBAYYANNAPALYA BANASWADI MAIN ROAD BANGALORE RESPONDENT [By Smt Suguna R Reddy, Adv.] THIS APPEAL IS FILED UNDER 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: PASSED IN MVC

2 2 NO. 9272/2008 ON THE FILE OF XII ADDITIONAL SMALL CAUSES JUDGE AND MEMBER, MACT, BANGALORE, AWARDING A COMPENSATION OF RS. 1,76,200/- WITH 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION AND ETC., IN MFA NO. 9190/2012 BETWEEN: SRI RATHNAKAR S/O LATE P RAMARAO AGED ABOUT 46 YEARS R/AT NO. 166, 1 ST CROSS, SUBBAYYANAPALYA BANASWADI, BENGALURU APPELLANT AND: [By Smt Suguna R Reddy, Adv.] THE MANGING DIRECTOR & V.C., APSRTC, MUSHIRABAD HYDERABAD ANDRAPRADESH RESPONDENT [By Sri D Vijaya Kumar, Adv.] THIS APPEAL IS FILED UNDER 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: PASSED IN MVC NO.9272/2008 ON THE FILE OF THE XII ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC., THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, RAVI MALIMATH, J., DELIVERED THE FOLLOWING: J U D G M E N T The case of the claimant is that on at about 4.30 pm, one B.A. Kumaraswamy, being the driver of

3 3 the APSRTC bus bearing Registration No AP-10 Z-5512, drove the same on Nellipatla-Kolamasanapalli road in a high speed and negligent manner and while negotiating a curve, he came on the wrong side of the road i.e. on the right side of the road and dashed against a Maruthi van bearing Registration No KA-03 MC-7788, which was coming from the opposite direction. As a result of the accident, the inmates of the Maruthi car sustained grievous injuries. 2. The claimant in this case Rathnakar filed MVC No 9272 of 2008 seeking compensation for the injuries sustained by him. The other inmates of the car also filed separate claim petitions. 3. The tribunal heard all the claim petitions together and a common judgment and award was passed. The claim petition of the appellant in MFA No 9190 of 2012 was partly allowed awarding a total compensation of Rs 1,76,200/- with interest at the rate of 6% p.a. from the date of claim petition till the date of realization. Seeking enhancement of the compensation, the claimant has filed

4 4 MFA No 9190 of 2012 and questioning the liability and excess compensation, the insurer has filed MFA No 8451 of Heard learned counsels. 5. The Tribunal placed reliance on the judgment reported in the case of SHAHEED AHMED vs SHANKARANARAYANA BHAT [ILR 2008 KAR 3277] and held that the claimants are entitled for the entire medical expenses irrespective of the reimbursement of the health insurance policy. However, since the claimants have not produced any material to show that the health insurance company has cleared the hospital bills, a sum of Rs 50,000/- was awarded towards medical expenses. Hence, it is claimed that the entire amount of medical expenses be awarded. 6. On the other hand, the learned counsel for the insurer contends that the judgment of the Hon ble Supreme Court in the case of HELEN C REBELLO vs

5 5 MAHARASHTRA STATE ROAD TRANSPORT CORPORATION [1999 ACJ 10], clearly covers the case. That the receipt of medical expenses etc., requires to be deducted when an award is made under the Motor Vehicles Act. 7. The Hon ble Supreme Court in the case of HELEN C REBELLO [supra], dealt with the question as to whether life insurance money has to be deducted from the claimant s compensation receivable under the Motor Vehicles Act. It was held that the amount received by the claimants on the life insurance of the deceased is not deductable from the compensation computed under the Motor Vehicles Act. However, in the case of SHAHEED AHMED [supra], the learned Single Judge placed reliance on the judgment in the case of HELEN C REBELLO as well as the order of the Division Bench of this court in the case of B PARIMALA AND OTHERS vs RIYAZ AHMED AND OTHERS (2002 ACJ 154). The Division Bench therein followed the judgment in the case of HELEN C REBELLO and held that deduction of the life insurance amount is unsustainable. Following the

6 6 judgment of the Division Bench as well as the case of HELEN REBELLO, the learned Single Judge in the case of SHAHEED AHMED sought to apply the principles therein and accordingly held that medical expenses cannot be deducted. That the insurance company is liable to pay the medical expenses irrespective of the payments received through medi-claim. 8. We are unable to accept the judgment in the case of SHAHEED AHMED. The question for consideration in HELEN C REBELLO S case was the deduction towards the life insurance policy. The deduction considered by the learned single judge in the case of SHAHEED AHMED was with reference to medical expenses. The deduction of the life insurance policy was considered in depth in the case of HELEN C REBELLO. It was held that a pecuniary advantage received by the claimants out of the life insurance policy would have no correlation to the accidental death for which compensation is computed. That any amount received or receivable not only on account of accidental death, but that

7 7 would have to come to the claimants even otherwise, could not be construed to be a pecuniary advantage liable for deduction. However, the same principle is not applicable in cases where insurance is taken out on other heads as in this case towards medical expenses. When a policy is taken out for medical expenses the claimant is liable to receive the same under the policy. In a claim under the Motor Vehicles Act, the claimant is entitled for medical expenses. However the very same amount cannot be awarded twice, since the same would amount to a pecuniary benefit. If not, the claimants would receive a double payment on the same head. The distinction in the case of HELEN C REBELLO is with reference to the death which is eminent, for which a policy having been taken, cannot be construed to be a pecuniary advantage, vis-à-vis a pecuniary advantage which a claimant would receive on other heads. Therefore, we are of the considered view that the judgment in the case of SHAHEED AHMED, holding the insurance company liable to pay medical expenses even though such medical expenses have been received by the

8 8 claimants through another policy is an incorrect law. Therefore, we are of the considered view that the judgment in the case of HELEN C. REBELLO as well as in the case of B PARIMALA AND OTHERS have not been rightly construed. We, therefore, hold that the judgment in the case of SHAHEED AHMED is not a good law. The insurance company is not liable to pay the medical expenses to the claimants in a case where the medical expenses are received by the claimants through a medi-claim policy or any other medical policy covering medical expenses. 9. In so far as the award of the tribunal on various other heads is concerned, we are of the considered view that the same calls for appropriate enhancement. The claimant is an ex-service man and was doing business in automobiles under the name and style of S.R. Automobiles and claims to be earning a monthly income of Rs 20,000/-. No material has been produced to substantiate this claim. The tribunal adopted a notional income of Rs 4,000/- per month. We are of the view that the same is improper.

9 9 Following the judgment of the Supreme Court in the case of RAMACHANDRAPPA vs THE MANAGER, ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, [IN AIR 2011 SC 2951], it would be appropriate to hold the notional income at Rs 6,000/- per month. 10. As per the evidence of the doctor, the disability is assessed at 10%, which is accepted. The multiplier applied by the tribunal is appropriate. In the circumstances, the amount awarded towards loss of earning capacity is worked at Rs 6,000 x 12 x 14 x 10% = Rs.1,00,800/-. In addition, the claimant is entitled to a further sum of Rs.30,000/- towards pain and suffering. The claimant would be unable to work for a period of six months. Hence, a sum of Rs.36,000/- (Rs.6,000/- x 6) is awarded towards loss of income during the laid up period. The amount awarded towards loss of amenities at Rs.5,000/- is on the lower side, which is enhanced by a further sum of Rs.30,000/-. The amount awarded towards medical and incidental

10 10 expenditure is proper and undisturbed. Hence, the compensation now awarded is as follows: 1 Towards loss of earning capacity Rs. 1,00,800 2 Pain and suffering Rs. 60,000 3 Loss of income during laid up Rs. 36,000 period 4 Loss of amenities Rs. 35,000 5 Medical and incidental expenses Rs. 50,000 Total Rs. 2,81, Accordingly, the claimant will be entitled to an enhanced compensation of Rs.1,05,600/- (Rs.2,81,800/- Rs.1,76,200/-), which shall carry interest at the rate of 9% p.a. from the date of claim petition till realization of the amount, which shall be paid within eight weeks from the date of receipt of a copy of this judgment. 12. In the result, MFA No 8451 of 2012 is dismissed and MFA No 9190 of 2012 is allowed in part in the aforesaid terms.

11 The registry is directed to transmit the amount in deposit before this court, if any, and the records to the tribunal forthwith. Sd/- JUDGE *pjk Sd/- JUDGE