The court emphasized the need for just and reasonable compensation, considering the assessment of disability and the principles established in previous judgments.

Suresh Kait, J.

1. The appellant/Insurance Company has assailed the impugned award dated 07.04.2006, whereby the learned Tribunal has granted compensation as under:-

“Loss of income (2500

x 12 x 17 x 1) Rs.5,10,000/-

Medical expense Rs.3,48,049/-

Expense on attendant Rs.25,000/-

Pain & sufferings Rs.25,000/-

Loss of amenity of life Rs.25,000/-

Future treatment Rs.50,000/-

Special diet & Rs.20,000/-

conveyance

TOTAL Rs.10,03,049/-

(rounded off) Rs.10,03,000/-”

Interest at the rate of 5.5% per annum was also awarded from the date of filing of the petition till its realization.

2. Learned counsel appearing on behalf of the appellant/Insurance Company has argued the present appeal on two grounds. Firstly, the assessment of permanent disability for quantifying the loss of income has not been considered properly by the learned Tribunal. Secondly, the amount received on account of Mediclaim Policy has not been deducted from the cost of treatment by the learned Tribunal.

3. Learned counsel has argued that the disability certificate Ex.PW2/30 issued by the All India Institute of Medical Sciences, New Delhi establishes 50% disability suffered on account of the injuries received in the accident. However, the learned Tribunal has considered the same as 100% functional disability suffered by the claimant.

4. He submitted that the learned Tribunal has wrongly presumed permanent disability to the extent of 100% ignoring the medical evidence on record. For deciding the issue of percentage of permanent disability, the law has been well settled in the case of Raj Kumar Vs. Ajay Kumar & Anr., 2011 ACJ 1.

5. As per the ratio of the said judgment, the functional disability has to be assessed for determining the loss of earning capacity. He further submitted that there is no evidence on record which justifies the functional disability to the extent of 100% as taken by the learned Tribunal while granting the compensation. At the most, 50% disability could be considered for assessing the loss of earning capacity.

6. He further argued that on the issue of amount received under the Mediclaim Policy, this Court has dealt with the identical situation in the case of ICICI Lombard General Insurance Co. Ltd. Vs. Swatantrata Sharma & Ors. in MAC. App. No. 427/2011 decided on 10.05.2012, wherein it is held that the claimants would not be entitled to the medical expenditure which has been reimbursed to him under the Mediclaim Policy on the ground of double compensation as the same is not permissible. The relevant portion of the same reads as follows:-

“6. This Appeal is squarely covered by a judgment of this Court in MAC APP.191/2010 titled Bajaj Allianze General Insurance Co. Ltd. v. Ganpat Rai Sehgal & Ors. decided on 03.01.2012 wherein this Court noticed United India Insurance Co. Ltd. v. Patricia Jean Mahajan (2002) 6 SCC 281; Gobald Motor Service Ltd. & Anr. v. R.M.K. Veluswami and Ors., AIR 1962 SC 1; Helen C. Rebello v. Maharashtra S.R.T.C., (1999) 1 SCC90; Jitendra v. Rahul (2008) (5) MPHT 336; and Udam Singh Sethi v. Tamal Das and Ors. MAC. APP. No. 369/2006 decided on 26.10.2009; and held that the Claimant would not be entitled to the medical expenditure which has been reimbursed to him under the mediclaim policy.”

7. He further submitted that the learned Tribunal in Para 17 of the impugned award has clearly observed that out of the medical bill of Rs.84596.20, the company has paid a sum of Rs.63,000/- and for a medical bill of Rs.1,00,907.54/-, the company has paid a sum of Rs.75,000/-. Therefore, there is no dispute that a sum of Rs.1,38,000/- has been received by the respondent No.1/injured towards medical expenses on account of Mediclaim Policy. If the total medical expenses are taken, i.e., Rs.3,48,049/-, than after deducting the sum of Rs. 1,38,000/-, i.e., the amount so received on account of Mediclaim Policy, the balance amount comes to Rs.2,10,049/-.

8. Lastly, he argued that the aforesaid amount