The tortfeasor's liability for compensation remains despite the claimant's receipt of medical expenses from a mediclaim policy.

JUDGMENT :

(J.C. Doshi, J.)

1. The present First Appeal, under Section 173 of the Motor Vehicles Act, 1988, is preferred by the appellant – Insurance Company, being aggrieved and dissatisfied with the impugned judgment and award dated 11.12.2009 passed by the Motor Accident Claims Tribunal (Main), Navsari in Motor Accident Claim Petition No.86 of 2007, by which the Tribunal has awarded compensation of Rs.3,64,320/- from all opponents, jointly and severally.

2. Brief facts of the case are as under :

2.1 On 17.10.2006, the claimant was driving motorcycle bearing No.GJ-21-B-4765 and when he reached near Bhana Petrol Pump on service road of village Kabilpore, at that time one Tempo bearing No.GJ-21-T-2827 come with full speed and the driver of the tempo was driving it rashly and negligently. Thereafter, the driver of the tempo dashed with the motorcycle of the claimant and due to such accident, the claimant fell on the road and sustained various injuries. Therefore, the claimant filed claim petition seeking compensation of Rs.5,00,000/- with cost and interest against the present respondents before the Tribunal.

3. In essence, the Insurance Company is in appeal on two grounds. Firstly that the learned Tribunal erred in granting the amount of compensation under the head of medical expenses despite the claimant has received the amount of medical expenses from his mediclaim and secondly, on the point of self negligence of the claimant in causing the road accident.

4. Heard learned advocate Ms.Lilu Bhaya appearing for the appellant – Insurance Company, learned advocate Mr.Sumit Prajapati for and on behalf of learned advocate Mr.Adil Mirza for respondent No.1 and learned advocate Mr.Akash Modi appearing for respondent No.3.

5. It is sought to be submitted by Ms.Lilu Bhaya that it is unquestionable accident between two vehicles with head on collision where one motorcycle was ridden by the claimant and tempo was ridden by the opponent No.1. She would submit that the accident took place on the service road near Bhana Petrol Pump which indicates that two vehicle drivers have not taken due care and diligence to avoid the accident. She would further submit that the Insurance Company does not disown the liability of its driver i.e. tempo driver in causing the road accident but at the same time, the learned Tribunal ought to have decided the self-negligence of the claimant. Taking this Court through the Panchnama on the record, she would submit that the Panchnama drawn of the post road accident discloses that the claimant was also negligent in causing the road accident. Therefore, upon this ground she would submit to interfere with the impugned judgment and award. Secondly, she would submit that admittedly the claimant got medical expenses from the mediclaim as he has purchased it and therefore, learned Tribunal erred in granting the compensation for medical expenses. She would submit that it amounts to getting benefit twice for single cause. Therefore, the claimant could not be granted compensation under the head of medical expenses. Learned Tribunal erred to that extent. She submits to interfere with the impugned judgment and award on these two grounds.

6. On the other hand, learned advocate Mr.Sumit Prajapati submit to sustain the impugned judgment and award. He would further submit that the prudent act of the claimant to purchase mediclaim would not absolve the liability of the tortfeasor to pay the compensation. This principle has been succinctly exposed by the coordinate Bench of this Court and rightly relied upon by the learned Tribunal in case of Ramanlal Ranchhoddas Shah vs. Asthi Gustadji Rustomji and others - 1978 GLR 990. Therefore, he submits to dismiss this appeal.

7. Regard being had to the rival submissions of learned advocates of both sides, it is noticeable that the issue of road accident is not in dispute. What is disputed by Insurance Company is about finding of the learned Tribunal not to assess the self-negligence of the cl