Allowed

Reliance General Insurance Co.Ltd. v. Mac Boney Xavier

Kerala HC11 Mar 2022MACA/931/2013

Case brief

AI extract

What is this about?

In an appeal against the Motor Accidents Claims Tribunal award, the Kerala High Court held that compensation under Section 166 of the Motor Vehicles Act cannot be allowed for treatment expenses already covered by an individual mediclaim policy. The Court allowed the appeal, setting aside the enhanced treatment expense amount, and ordered the insurer to deposit the balance compensation with interes

What did the court decide?

Tribunal award set aside regarding treatment expenses. Insurer ordered to deposit balance compensation (Rs. 42,700) plus 7.5% interest.

Reliance General Insurance Co.Ltd. Vs Mac Boney Xavier — Motor Accident Claims | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE M.R.ANITHA

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FRIDAY, THE 11^TH DAY OF MARCH 2022 / 20TH PHALGUNA, 1943

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MACA NO. 931 OF 2013

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APPEAL AGAINST THE AWARD IN OPMV 90/2011 DATED 22.10.2012 MOTOR

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ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM

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APPELLANT/3RD RESPONDENT:

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RELIANCE GENERAL INSURANCE CO.LTD. KOCHI-31, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM. BY ADV SRI.GEORGE CHERIAN (THIRUVALLA)

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RESPONDENT/CLAIMANT:

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MAC BONEY XAVIER S/O.P.M.XAVIER, POKKALAYIL HOUSE, KALAMASSERY P.O., ERNAKULAM DISTRICT, PIN 683104.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.03.2022, THE COURT ON THE SAME DAY DELIVERED THE

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FOLLOWING:

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M.A.C.A No. 931 of 2013

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JUDGMENT

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This appeal has been filed by the 3^rd respondent/insurer against the award passed in O.P.M.V No.90/2011 on the file of Motor Accidents Claims Tribunal, Ernakulam. The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injuries sustained by the 1^st respondent in a motor accident occurred on 29.09.2010 at about 9.00 am., while he was riding on a Scooter bearing Registration No. KL.7BB/7051 due to hit by bus bearing Registration No. KL.7 AV/910 driven by the 2^nd respondent. It is alleged that the accident happened due to the rash and negligent driving of the 2^nd respondent, the driver of the bus. 1^st respondent is the registered owner of the offending vehicle and 3^rd respondent is the insurer.

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Before the Tribunal, the 1^st and 2^nd respondents the driver and owner of the offending vehicle remained ex parte and the 3^rd respondent insurer filed written statement admitting the insurance coverage with respect to the offending vehicle and

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M.A.C.A No. 931 of 2013

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deniying the negligence attributed against the 2^nd respondent.

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PW1 was examined. Exts. A1 to A14 were marked from

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the side of the 1^st respondent in this case. On evaluating the evidence and materials, the Tribunal awarded a total compensation of Rs.1,16,648/- under various heads together with interest at the rate of 9% per annum.

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Dissatisfied with the amount awarded by the Tribunal towards expenses for treatment, the appellant/3rd respondent/insurer (hereinafter be referred as appellant) approaches this Court in appeal. Notice issued to respondent/claimant cannot served and ultimately notice was effected through substituted service. There is no appearance on behalf of the respondent.

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The only challenge is against the award of compensation towards the treatment expenses. According to the learned counsel for the appellant, Ext.A12 is the copy of inpatient bill summary. The Tribunal awarded Rs.73,948/- towards medical expenses on the basis of photo copy of bills produced. But claimant had received an amount of Rs.73,577/- towards medical

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M.A.C.A No. 931 of 2013

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expenses in respect of injuries sustained in this accident under medi claim policy issued by New India Assurance Co. Ltd. Tribunal awarded the amount based on National Insurance Co. Ltd. v. Bijumon [2011 (2) KLT 20], in which this Court held that amount received under Medical Insurance Policy by the claimant, cannot be deducted from the compensation amount to be claimed by the claimant. According to the learned counsel, a Division Bench of this Court in National Insurance C ompany Ltd. v. Akber Badsha [2015 (4) KLT 442], categorically found that treatment expenses satisfied by availing 'Mediclaim policy' has to be reckoned while fixing the quantum of compensation payable. In para 4, the Division Bench discussed the decision of learned Single Judge in 2011 (2) KLT 20 passed on the basis of decision in M.P.State Road Transport Corporation v. Priyank [2000 ACJ 701]. The position of law has been discussed by the Division Bench of Karnataka High Court in Shaheed Ahmed v. Sankaranarayana Bhat (ILR 2008 Karnt. 3277), wherein it has been held that amount obtained under 'Mediclaim policy' was not liable to be set off in respect of a claim under Section 166 of M.V.Act., was subsequently doubted by

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M.A.C.A No. 931 of 2013

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another learned Judge of the Karnataka High Court and it was referred to a Division Bench. Accordingly, the position of law has been made clear by the Division Bench as per The New India Assurance Company Limited v. Manish Gupta and Others [2013 (1) Karnataka Law Journal 624], declaring that the amount obtained under 'Mediclaim policy' was liable to be set off, as there could not be extension of any double benefit in respect of the same cause of action.

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In the present case, claimant produced Ext.A14 which is the certificate issued by the Divisional Manager of the New India Assurance Co. Ltd. certifying that they have settled an amount of Rs.73,577/- against an amount of Rs.77,934/- in connection with the medical expenses due to the accident occurred on 29.09.2010 under individual mediclaim policy No. 76040034091100001729. Ext.A14 would conclusively prove the settlement of the award but under medi claim policy. Hence as per the settled position of law, claimant is not entitled to get any amount further under the head of medical expenses on production of copies of medical bills. So, Rs.73,948/- awarded by the Tribunal under the head of treatment

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M.A.C.A No. 931 of 2013

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expenses is here by set aside. It is reported by the learned counsel for the appellant that they have already deposited an amount of Rs.42,000/- as per the order of this Court.

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As per the order dated 09.12.2021, interim stay was granted to appellant on condition that the appellant deposits an amount of Rs.42,000/- with proportionate interest and cost before the Tribunal within 60 days. From the award passed by the Tribunal, deducting the treatment expenses, the balance would be Rs.42,700/- (1,16,648-73,948). An amount of Rs.700/- (42,70042,000) is further due to the 1^st respondent/claimant. The appellant insurer shall deposit the said amount with interest 7.5% from the date of petition till the date of deposit within two months of the date of receipt of copy of this judgment.

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In the result, appeal stands allowed. Parties shall bear their respective costs. Sd/-

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M.R.ANITHA JUDGE

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rps/

Reliance General Insurance Co.Ltd. v. Mac Boney Xavier

Case brief

What is this about?

What did the court decide?

Reliance General Insurance Co.Ltd. v. Mac Boney Xavier

Case brief

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What did the court decide?

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