The main legal point established in the judgment is that benefits received as a consequence of injuries sustained, which the claimant would not have been entitled to otherwise, should be deducted from the compensation.

J.R. MIDHA, J.

1. The appellant has challenged the award of the Claims Tribunal whereby compensation of `4,13,565/-to respondent No.1. The appellant has challenged the award of the Claims Tribunal only to the extent of `64,139/-on the ground that respondent No.1 has already received the said amount from the insurance company under a medi-claim policy. It is submitted that respondent No.1 has not suffered any loss with respect to the said amount since respondent No.1 has already received the said amount under the medi-claim insurance policy. It is submitted that the award of `64,139/-amounts to double payment as well as unjust. The learned counsel for respondent No.1 admits that respondent No.1 has received `64,139/-under the mediclaim policy as recorded in para 11 of the award.

2. This case is covered by the judgment of the Supreme Court in United India Insurance Company Ltd. v. Patricia Jean Mahajan, AIR 2002 SC 2607 in which it was held that the claimant is not entitled to claim compensation in respect of the benefit received as a consequence of the injuries sustained which otherwise he would not have been entitled to. The findings of the Supreme Court are as under:-

“23. Mr. Soli J. Sorabji submitted that while assessing the amount of compensation, the benefits which have accrued to the claimants by reason of death must also be taken into account. A kind of balancing of losses and the gains or benefit by reason of death would be necessary. In support of the above contention he has referred to a decision reported in [1962] 1 SCR 929 Gobald Motors Service Limited v. R.M.K. Veluswami and Ors. It is a decision by three-judges Bench of this Court, and at page 938 the observations made by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd. (1942 AC 601) has been quoted which reads as follows:-"The general rule which has always prevailed in regard to the assessment of damages under the Fatal Accidents Acts is well settled, namely, that any benefit accruing to a dependant by reason of the relevant death must be taken into account. Under those Acts the balance of loss and gain to a dependant by the death must be ascertained, the position of each dependant being considered separately"

24. To further elaborate the above proposition, observations made by Lord Wright in Davies case (supra) have also been quoted. It reads as follows:-

"The damages are to be based on the reasonable expectation of pecuniary benefit of benefit reducible to money value. In assessing the damages all circumstances which may be legitimately placed in diminution of the damages must be considered...... The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one hand, the loss to him of the future pecuniary benefit, and on the other, any pecuniary advantage which from whatever source comes to him by reason of the death."

25. The learned counsel laid stress on the last part of observation made to the effect that -for the purposes of balancing losses and gains any pecuniary advantage which from whatever source come to them, has to be considered.

26. It is submitted in Gobald's case the principle of Devies Case was referred and taken into consideration. Reliance has also been placed on the decision reported in 1971 (1) SCC 785, M/s. Shekhupura Transport Co. Ltd. v. Northern India Transport Company particularly to the observations made by the Court in paragraph 6 of the judgment where the principle in the case of Gohalds Motors (supra) has been reiterated. In this connection learned counsel for the Insurance Company has also drawn our attention to the decision in the case of Susamma Thomas, (supra) particularly on paragraph 8 of the report, where it is observed that the principle in the case of Devies v. Powell was adopted, in the case of Gobald Motors (supra). It is thus submitted that principle of balancing of loss and gains, so as to arrive at a just and fair amount of compensation has b