Point of law: Amount of Rs. 85,176/- received by the claimants on account of the mediclaim policy is liable to be deducted from the amount awarded under the head Medical expenses.

JUDGMENT :

T.R. RAVI, J.

1. The appeal is filed by the 3rd respondent before the Tribunal. The claimants before the Tribunal have preferred a Cross Objection. The parties are referred to as per their status before the Tribunal. The 1st claimant's husband, while walking along the Chittoor road, Ernakulam, at about 5.40 A.M. on 16.5.2011, was hit by an autorikshaw driven in a rash and negligent manner. He was taken to Specialists Hospital, Ernakulam for treatment. While undergoing treatment, he succumbed to the injuries on 24.5.2011. The deceased was a novelist. He had retired from the Southern Naval Headquarters as Office Superintendent Grade I. The wife and 3 children of the deceased preferred the claim petition before the Tribunal. The Tribunal awarded a sum of Rs. 6,44,000/- as compensation. The insurer who was the 3rd respondent before the Tribunal has filed this appeal contending that the amount awarded is excessive.

2. Heard the counsel for the appellant and the respondents.

3. The deceased was aged 76 years at the time of the accident. He was earning a monthly pension of Rs. 11,816/-. According to the claimants, the deceased was getting Rs. 5,000/- per month from his literary works. Exhibit A22 photographs are produced to prove that the deceased was a novelist. The counsel for the Insurer submits that even though the claimants had not proved that the deceased was earning Rs. 5,000/- in addition to his service pension, the Tribunal presumed that the deceased was getting some income from his literary works and thus fixed the total monthly income of the deceased as Rs. 15,000/- for the purpose of calculating the compensation. The Tribunal found that the children of the deceased were employed and are not dependants and hence 50% of the monthly income was deducted towards personal expenses and living expenses of the deceased.

4. Another contention raised by the counsel for the 3rd respondent is that the claimants had received a sum of Rs. 85,176/- under a mediclaim policy taken by one of the claimants and hence the said amount should be deducted from the amounts awarded towards medical expenses. The Tribunal relied on the judgment in National Insurance Co. Ltd. vs. V.S. Bijumon and Others, 2011 (1) KHC 776 and held that the claimants are entitled to the entire amount spent by them as compensation towards the medical expenses without deducting the amount received under the Mediclaim policy.

5. The claimants have filed a cross objection. The counsel for the claimants submits that the amount awarded by the Tribunal is very low. According to the counsel, the amount received under the mediclaim policy is not liable to be deducted since the said amount is paid under a contractual liability and the liability to pay compensation under the Motor Vehicles Act is a statutory liability. The counsel contends that the Tribunal should have considered the monthly income of the deceased as Rs. 16,860/- having regard to the fact that the deceased was earning income from his literary works, as proved by Exhibits A22, A27, A25 and A26. It is also contended that the Tribunal should not have deducted 50% towards personal expenses and only one fourth should have been reduced going by the decisions of the Hon'ble Supreme Court. It is pointed out that the amounts awarded towards funeral expenses and loss of estate should be increased by Rs. 5,000/- each and that the Tribunal has awarded only Rs. 15,000/- towards loss of consortium which ought to have been Rs. 40,000/-. Having considered the contentions raised by either side, I am of the opinion that the compensation awarded by the Tribunal has to be modified.

6. The contention of the claimants regarding the amount awarded towards funeral expenses and loss of estate is justified. An additional sum of Rs. 5,000/- each is to be granted under the said two heads. So also the claimants are entitled to an additional sum of Rs. 25,000/- under the head loss of consortium. The contention of the claimants that the Tri