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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N.J. Jamadar, J.
ROYAL SUNDARAM ALLIANCE INSURANCE CO LTD. - Appellant
Vs.
AJIT CHANDRAKANT RAKVI - Respondent
First Appeal No. 1620 of 2012; Civil Application No. 4005 of 2012
Decided On : 19-03-2019
Section 166 of the Motor Vehicles Act, 1988 - Sections 166,165,147,92-A,168(1),2(28) – Claim of Compensation - Applicant was riding a motorcycle on his way to Chembur from, Mumbai - When he came near T-Junction Dumper bearing No. owned by opponent No.1 and insured with opponent NO.2 came from behind in a high speed - Driver of dumper drove it in a rash and negligent manner and gave dash to applicant from behind - Applicant sustained multiple injuries including a grievous injury to right forearm with fracture of ulna - Right forearm of applicant was thus amputed - Applicant thus approached MACT and claimed compensation of Rs. lakhs - Tribunal, after appraisal of evidences adduced and documents tendered came to conclusion that accident occurred due to negligence of driver of offending Dumper - Whether there has been some causal relation or event is related to act - Whether contract of medical insurance which applicant independently had with his insurer would enure for benefit of the insurer who had underwritten a statutory liability under Act? - Whether life insurance money of deceased is to be deducted from claimants compensation receivable under Motor Vehicles Act, 1939?" - Whether amount of Rs. lakhs, paid under Group Hospitalization Policy by employer of husband of applicant should be deducted from the total amount of compensation awarded under Act - Whether amount of reimbursement received under a mediclaim policy be deducted from compensation payable under Act, in judgments of various High Courts - Whether our law values human life. – Held, Court must be mindful of the fact that appellant has suffered a serious disability in which he has suffered a loss of the use of both his hands - For a person engaged in manual activities it requires no stretch of imagination to understand that a loss of hands is a complete deprivation of the ability to earn. Nothing - at least in the facts of this case - can restore lost hands. But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life - If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering - Awards of compensation are not laws doles - In a discourse of rights, they constitute entitlements under law – Court conversations about law must shift from a paternalistic subordination of individual to an assertion of enforceable rights as intrinsic to human dignity – Court have observed whole scheme of Act, in relation of payment of compensation to claimant, is a beneficial legislation, the intention of legislature is made more clear by change of language from what was in Fatal Accidents Act, 1855 and what is brought under Section 110-B of 1939 Act - This is also visible through provision of Section 168(1) under Motor Vehicles Act, 1988 and Section 92-A of 1939 Act which fixes liability on owner of vehicle even on no fault - It provides where death or permanent disablement of any person has resulted from an accident spite of no fault of the owner of vehicle, an amount of compensation fixed therein is payable to claimant by such owner of the vehicle - When Court seek the principle of loss and gain, it has to be on similar and same plane having nexus inter se between them and not to which, there is no semblance of any co-relation. The insured (deceased) contributes his own money for which he receives the amount has no co-relation to the compensation computed as against tortfeasor for his negligence on account of accident. As aforesaid, the amount receivable as compensation under the Act is on account of injury or death without making any contribution towards it then how can fruits of an amount received through contributions of insured be deducted out of amount receivable under the Motor Vehicles Act - Amount under this Act he receives without any contribution. As we have said compensation payable under Motor Vehicles Act is statutory while the amount received under the life insurance policy is contractual - Appeal stands dismissed
N. J. Jamadar, J.
Admit.
2. With the consent of the counsels for the parties, heard finally.
3. This appeal is directed against the Award dated 2nd May 2012 passed by the learned Member, Motor Accident Claims Tribunal, Mumbai (MACT) in Application No. A.25/2007, under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short).
4. The parties are, hereinafter, referred to in the capacity in which they were arrayed before the MACT.
5. Shorn of superfluities, the background facts leading to this appeal can be stated as under :-
On 18th October 2006, at about 11:00 am., the applicant (respondent No.1 herein) was riding a motorcycle on his way to Chembur from Dadar, Mumbai. When he came near T-Junction, the Dumper bearing No.MH06- CG-164, owned by the opponent No.1 and insured with the opponent NO.2(the appellant herein) came from behind in a high speed. The driver of the dumper drove it in a rash and negligent manner and gave dash to the applicant from behind. The applicant sustained multiple injuries including a grievous injury to the right forearm with fracture of ulna. The right forearm of the applicant was thus amputed. The applicant, thus, approached MACT and claimed compensation of Rs.7 lakhs.
6. The Tribunal, after appraisal of the evidences adduced and documents tendered, came to the conclusion that the accident occurred due to negligence of the driver of the offending Dumper. The applicant suffered grievous injury and 70% disability on account of traumatic amputation of right forearm. Thus, the Tribunal awarded compensation as under :-
"Treatment expenses
:
Rs. 1,20,000/-
conveyance
:
Rs. 3,000/-
special diet
:
Rs. 2,000/-
loss of income
:
Rs. 36,000/-
pain and suffering
:
Rs.1,00,000/-
disability
:
Rs. 2,01,600/-
Loss of amenities of life
:
Rs. 40,000/-
Total
:
Rs. 5,02,600/-"
7. Being aggrieved by and dissatisfied with the aforesaid award, the insurer came in appeal.
8. I have heard Shri Mehta, the learned counsel appearing for the appellant and Shri Mendon, the learned counsel for respondent No.1- applicant.
9. The learned counsel for the appellant advanced a two-pronged submission. Firstly, it was urged that the Tribunal committed a manifest error in fastening the liability upon the insurer without properly appreciating the nature of the contract of insurance. It was submitted that the contract, under which the opponent No.1 was insured, was Contractor's Plant and Machinery Policy. Thus, the liability of the insurer was limited to the incidents which occurred within the precincts of the plant. In the case at hand, the accident had occurred on a public road and was not at all covered by the contract of insurance. Secondly, the Tribunal was not justified in awarding the compensation under the head of treatment expenses (Rs.1,20,000/-), without there being any documentary evidence to substantiate the same. As a second limb of this submission, it was urged that, the Tribunal arrived at the said sum of Rs.1,20,000/- on the basis of the amount reimbursed to the applicant under a mediclaim policy. Thus, the applicant was unjustifiably allowed a double benefit, i.e., statutory, under terms of the policy in question, and contractual, in terms of the policy under which the applicant had insured himself, for one and the same expenses.
10. In contrast to this, the learned counsel for the respondent No.1 urged that none of the aforesaid challenges to the impugned award merit countenance. The learned counsel for the respondent No.1 would submit that it is indubitable that the accident arose out of the use of a motor vehicle and, thus, the Tribunal had competence to award the compensation. T
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