SL. NO,QTY,"DESCRIPTION TYPE, MODE, CAPACITY OF
MACHINE",MAKE,"YEAR
OF
MAKE","SUM
INSURED
(Rs.)",EXCESS,
,,,,,,"For claims
arising out
of AOG perils","For claims
arising out
of perils
other than
AOG
1,1 no.,"STETTAR TRANSIT MIXER MOUNTED ON ASHOK
LEYLAND TAURUS 2516 REG MH04 CG 1624
ENG NO. FEW 404543 CH.NO. FWR 221672","ASHOK
LEYLAND",2005,"14,40,000/Â","2% of S.I.
subject to a
minimum of
Rs.30,000/Â","1.00% of
S.I. subject
to minimum of
Rs.12,500/Â
Total Sum Insured :,,,,,,,
Third party Liability,â€" (AOA : AOY = 1:1),,,,,"Rs.14,40,000/Â","Rs. 100,000/Â‐
â€
relation or the event is related to the act.â€,,,,,,,
(emphasis supplied),,,,,,,
19. In the backdrop of the definition of 'motor vehicle' and the interpretation which the expression “arising out of use of the motor vehicle†has,,,,,,,
received, it would be rather naive to urge that motor vehicle, on which a machinery was mounted, looses its character of a 'motor vehicle'. Nor it",,,,,,,
would stands to reason that when the accident arises out of the use of said vehicle, while in transit, the insurer would be absolved of its liability.",,,,,,,
20. This leads me to the second challenge of double benefit mounted by the learned counsel for the appellant. Evidently, the Tribunal had awarded",,,,,,,
compensation under the head of medical expenses on the basis of the fact that a sum of Rs.1,20,000/Â was reimbursed to the applicant, under the",,,,,,,
contract of mediclaim insurance. Would the said reimbursement of medical expenses disentitle the applicant to claim compensation under the Act,",,,,,,,
under the said head?,,,,,,,
21. The Tribunal was of the view that the said reimbursement, was not deductible. Adverting to the proposition of law laid down by the Supreme",,,,,,,
Court in the case of Helen C. Rebello Vs. MSRTC AIR 1998 SC 3191, that the amount received by the claimant on the life insurance of the deceased",,,,,,,
is not deductible from the compensation computed under the Act, the Tribunal held that the said principle applied even to the personal injury claim and",,,,,,,
thus did not allow the deduction. This view of the Tribunal, according to the learned counsel for the appellant, is not sustainable as there is a clear case",,,,,,,
of double benefit in respect of the very same expenses.,,,,,,,
22. Per contra, the learned counsel for the respondent No.1 stoutly submitted that the said reimbursement of expenses under an independent contract",,,,,,,
of insurance has no bearing upon the claim under a statutory liability. Moreover, the applicant had paid premium for purchasing the said insurance.",,,,,,,
Thus, the benefit, which emanated from the said contract, cannot be adjusted against the compensation payable under the Act.",,,,,,,
23. Apparently and at the first blush, the submission on behalf of the appellant appears attractive. However, the submission warrants a close scrutiny",,,,,,,
in the backdrop of the nature of the statutory liability of the insurer, under the Act. The other facet of the aforesaid question is, whether the contract",,,,,,,
of medical insurance, which the applicant independently had with his insurer, would enure for the benefit of the insurer, who had underwritten a",,,,,,,
statutory liability under the Act?,,,,,,,
24. For an answer, reference to the judgment of the Supreme Court in the case of Helen C. Rebello (Supra), at this juncture, would be advantageous.",,,,,,,
In the said case, the question that arose for consideration was, “Whether life insurance money of the deceased is to be deducted from claimants'",,,,,,,
compensation receivable under the Motor Vehicles Act, 1939?†After an elaborate consideration, the Supreme Court held that the said amount",,,,,,,
received by the claimant was not deductible from the compensation receivable under the Act. The relevant portions of paragraphs 35, 36 and 37 of the",,,,,,,
judgment are extracted below :Â,,,,,,,
“35 This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is",,,,,,,
excluded thus, either through the wisdom of legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice",,,,,,,
arising from the same transaction, viz., same accident. It is significant to record here in both the sources, viz., either under the Motor Vehicles Act or",,,,,,,
from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee",,,,,,,
but in both cases he receives the amount without his contribution. How thus an amount earned out of one's labour or contribution towards one's,,,,,,,
wealth, savings, etc. either for himself or for his family, which such person knows, under the law, has to go to his heirs after his death either by",,,,,,,
succession or under a will could be said to be the 'pecuniary gain' only on account of one's accidental death. This, of course, is pecuniary gain but how",,,,,,,
this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicles Act. There is no coÂrelation,,,,,,,
between the two amounts. Not even remotely. How can an amount of loss and gain of one contract could be made applicable to the loss and gain of,,,,,,,
another contract. Similarly, how an amount receivable under a statute has any coÂrelation with an amount earned by an individual. Principle of loss",,,,,,,
and gain has to be on the same place within the same sphere, of course, subject to the contract to the contrary or any provisions of law.",,,,,,,
36................When we 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 coÂrelation. The insured (deceased) contributes his own money for which he receives the amount has no coÂrelation 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 the injury or death without making any contribution towards it then how can fruits of an amount received through,,,,,,,
contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act, he receives without",,,,,,,
any contribution. As we have said the compensation payable under the Motor Vehicles Act is statutory while the amount received under the life,,,,,,,
insurance policy is contractual.,,,,,,,
37 As we have observed the whole scheme of the Act, in relation of the payment of compensation to the claimant, is a beneficial legislation, the",,,,,,,
intention of the legislature is made more clear by the change of language from what was in Fatal Accidents Act, 1855 and what is brought under",,,,,,,
Section 110ÂB of 1939 Act. This is also visible through the provision of Section 168(1) under the Motor Vehicles Act, 1988 and Section 92ÂA of",,,,,,,
1939 Act which fixes the liability on the owner of the vehicle even on no fault. It provides where the death or permanent disablement of any person,,,,,,,
has resulted from an accident spite of no fault of the owner of the vehicle, an amount of compensation fixed therein is payable to claimant by such",,,,,,,
owner of the vehicle. Section 92ÂB ensures that the claim for compensation under Section 92ÂA is in addition to any other right to claim,,,,,,,
compensation respect whereof under any other provision of this Act or of any other law for the time being in force. This clearly indicates the intention,,,,,,,
of the legislature which is conferring larger benefit to the claimant. Interpretation of such beneficial legislation is also well settled. Whenever there be,,,,,,,
two possible interpretations in such statute then the one which subserves the object of legislation, viz., benefit to the subject should be accepted. In the",,,,,,,
present case, two interpretations have given of this statute, evidenced by two distinct sets of decisions of the various high courts. We have no",,,,,,,
hesitation to conclude that the set of decisions, which applied the principle of no deduction of the life insurance amount should be accepted and the",,,,,,,
other set, which interpreted to deduct, is to be rejected................â€",,,,,,,
(emphasis supplied),,,,,,,
25. It may be apposite to also note two judgments of this Court. First, in the case of Vrajesh Navnitlal Desai Vs. K. Bagyam & Ors. 2006 ACH 65",,,,,,,
(BOM.). In the said case, the Tribunal had deducted a sum of Rs.29,000/Â which the claimant therein had received as medical reimbursement. This",,,,,,,
Court, after referring to the judgment of Madhya Pradesh State Road Trans. Corporation Vs. Priyank Manu/MP/0436/1999 held that the said amount",,,,,,,
cannot be deducted because it was paid to the claimant under the contract of insurance for which he had paid the premium.,,,,,,,
26. Second, in the case of United India Insurance Co. Ltd. Vs. Anjana W/o. Nileshkumar Parmar & Anr. 2012(3) Mh.L.J. 914, the question which",,,,,,,
arose before the learned Single Judge of this Court was, whether the amount of Rs.5 lakhs, paid under the Group Hospitalization Policy by the",,,,,,,
employer of the husband of the applicant, should be deducted from the total amount of compensation awarded under the Act. The learned Single",,,,,,,
Judge, after placing reliance upon the aforesaid judgment in the case of Vrajesh Navnitlal Desai (Supra), held that the said amount was not deductible.",,,,,,,
27. It must, however, be noted that there is a cleavage of judicial opinion on the point as to whether the amount of reimbursement received under a",,,,,,,
mediclaim policy, be deducted from the compensation payable under the Act, in the judgments of various High Courts. A Division Bench of Calcutta",,,,,,,
High Court in the case of New India Assurance Company Limited Vs. Bimal Kumar Shah & Anr. 2018 SCC OnLine Cal. 10368 elaborately,,,,,,,
considered the judgments which hold the view that such amount is required to be deducted and those which record a contrary view and, thereafter, by",,,,,,,
placing reliance upon the observations of the Supreme Court in the case of Helen C. Rebello (Supra), especially paragraph Nos.35 to 37, extracted",,,,,,,
above, came to the conclusion that the reimbursement of medical expenses under a contract of insurance is not deductible. While arriving at the",,,,,,,
aforesaid conclusion, the Calcutta High Court observed as under :Â",,,,,,,
“..................However, the Hon'ble Supreme Court has been pleased to go on and make it clear that an amount earned out of one's own",,,,,,,
contribution cannot be said to be ""pecuniary gain"" only on account of the accident. After all, it is not the case that the employer paid the Mediclaim of",,,,,,,
the victim in this or any other case of third party risk. The victim took out a medical insurance as and by way of a general insurance contract by,,,,,,,
paying premium. It was his contribution. If he gets something out of his own contribution, for an accident, under an insurance policy he has taken out",,,,,,,
himself, can a statutory liability on a different insurer who has taken on the risk towards third parties due to an accident caused by the offending",,,,,,,
vehicle which he has insured, then claim deduction of the amount the victim got from a different insurer based on his own contributions? I most",,,,,,,
respectfully think not, going by the spirit of the opinion delivered by the Hon'ble Supreme Court.",,,,,,,
.................However, in the instant case, I cannot lose sight of the principles which control the entire ratio first, that the liability of an insurer of the",,,,,,,
offending vehicle to pay a third party compensation for injury or death caused in an accident by the offending vehicle, is statutory whereas the liability",,,,,,,
to pay a sum to the insured victim for such accidental death or injury, or for any other kind of death, is contractual, and second that the sum paid by",,,,,,,
the insurer of the victim (rather than the offending vehicle) in both cases is due to the premium paid by the victim from his own earnings. Once these,,,,,,,
important differences and similarities as I have extracted above are appreciated, it will appear, with the greatest of respect to the learned coordinate",,,,,,,
benches of the other Hon'ble Courts or the learned Single Benches of those Hon'ble Courts, that none of the judgments referred to in paragraph 7 and",,,,,,,
subÂparagraphs a, b, c, d, or e, lay down the law, in the teeth of the ratio laid down by the Hon'ble Supreme Court in the case of Rebello (supra) as",,,,,,,
noticed by me above.â€,,,,,,,
(emphasis supplied),,,,,,,
28. In the light of aforesaid enunciation as regards the statutory liability of the insurer, the nature of general contract of medical insurance needs to be",,,,,,,
noted. The medical insurance covers a variety of ailments and medical expenses therefor, which are not otherwise specifically excluded. Often there",,,,,,,
is a upper limit. The duration is also stipulated by the terms of the contract. In this backdrop, the matter can be looked at from another angle.",,,,,,,
If the claimant exhausts the upper limit or substantial part of the insured amount, for meeting the expenses of treatment, for the injury which is",,,,,,,
suffered in an accident, the claimant would not be entitled to the benefit of the medical insurance, if the occasion again arises on account of certain",,,,,,,
other ailments unconnected with the accident. If the policy is in the nature of Family Floater Plan and the limit is exhausted for meeting the expenses,,,,,,,
in connection with an injury suffered in an accident, by one member, the other members of the family cannot have the benefit of the medical",,,,,,,
insurance.,,,,,,,
29. In the backdrop of these variables, the nature of the proceedings under the Act, becomes significant. A claim petition for compensation in regard",,,,,,,
to a motor accident filed by the injured before Tribunal constituted under Section 165 of the Act, is neither a suit nor an adversarial lis in the traditional",,,,,,,
sense. Though the tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. (United India",,,,,,,
Insurance Co. Ltd. Vs. Shila Datta & Ors. (2011) 10 SCC 509.) This being the nature of the proceedings before the Tribunal, even in respect of the",,,,,,,
parties before it, in my view, the benefits emanating from an independent and unconnected contract of insurance cannot be considered by the Tribunal,",,,,,,,
as it besets with variables rooted in cotract.,,,,,,,
30. From this stand point, in the context of the distinction between the contractual liability under the contract of insurance (medical) and the statutory",,,,,,,
liability under the Act, the aforesaid proposition, not to deduct the amount of reimbursement received, under a mediclaim policy, appears to be in",,,,,,,
consonance with the principle of beneficial interpretation and advances the object of the Act. Hence, I am not persuaded to agree with the submission",,,,,,,
on behalf of the appellant that the said amount of Rs.1,20,000/Â ought to have been deducted.",,,,,,,
31. The residual submission that there was no documentary evidence, except the said fact of reimbursement of Rs.1,20,000/Â in support of the claim",,,,,,,
of medical expenses does not carry much weight. The fact remains that the applicant had admittedly suffered fracture of ulna and was required to,,,,,,,
undergo medical treatment leading to amputation. Evidently, the said amount of Rs.1,20,000/Â was reimbursed after it was found to be admissible.",,,,,,,
Thus, in the facts of the case, the Tribunal was within its rights in assessing the compensation on the strength of vouched medical expenses of",,,,,,,
Rs.1,20,000/Â.",,,,,,,
32. The learned counsel for the appellant also canvassed that the award of compensation under the head of “Pain and Sufferingâ€,,,,,,,
(Rs.1,00,000/Â) and “Disability†(Rs.2,01,600/Â) was on the higher side. The Tribunal had placed reliance upon the judgment of the Supreme",,,,,,,
Court in the case of Raj Kumar Vs. Ajay Kumar 2011 ACJ 1 to arrive at the computation for loss of income under the head of pain and suffering.,,,,,,,
The Tribunal has assessed the annual income at the conservative estimate of Rs.36,000/Â per annum. The said assessment can, by no stretch of",,,,,,,
imagination, be said to be on a higher side.",,,,,,,
33. A useful reference in this context can be made to a recent three Judge Bench judgment of the Supreme Court in the case of Jagdish Vs. Mohan,,,,,,,
& Ors. (2018) 4 SCC 571, wherein, after following the aforesaid pronouncement in the case of Rajkumar (Supra), interÂalia, the following pertinent",,,,,,,
observations were made :,,,,,,,
“14 In making the computation in the present case, the court must be mindful of the fact that the 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 law's doles. In a discourse of rights, they constitute entitlements under law. Our conversations",,,,,,,
about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity.â€,,,,,,,
(emphasis supplied),,,,,,,
34. Undoubtedly, the applicant had suffered a painful and debilitating grievous injury resulting in amputation of right forearm. The applicant was",,,,,,,
earning his livelihood as a manual worker. The amputation of right forearm unquestionably affected the applicant's prowess and capacity. The mental,,,,,,,
trauma and anxiety about future must have contributed to the physical suffering. The pain, mental agony and inconvenience caused to the applicant on",,,,,,,
account of the said disability was thus rightly appreciated by the Tribunal and compensation of Rs.1 lakh was awarded under the head of 'Pain and,,,,,,,
Suffering'. In the totality of the circumstances, I am not inclined to hold that the said amount is on a higher side.",,,,,,,
35. It was lastly urged on behalf of the appellant that the insurer may be given the liberty to recover the amount from the insured, for the alleged",,,,,,,
breach of the conditions of policy. Assuming for the sake of argument that the insurer was not liable to pay the compensation, since the offending",,,,,,,
Dumper was duly insured, the appellantÂinsurer would still be liable to pay the compensation amount in the first instance and then recover the same",,,,,,,
from the owner of the offending vehicle. However, in the facts of the case at hand, on the basis of the findings recorded by the Tribunal, which this",,,,,,,
Court found to be justifiable, the liability of the insurer to satisfy the award stands established beyond cavil. Resultantly, the recourse to the principle of",,,,,,,
'pay and recover' is not warranted.,,,,,,,
36. The upshot of above consideration is that no interference is warranted in the impugned award. Consequently, the appeal fails.",,,,,,,
37. Thus, the appeal stands dismissed. In the circumstances, there shall be no order as to costs.",,,,,,,
38. The amount of statutory deposit be remitted to the Motor Accident Claims Tribunal, Mumbai.",,,,,,,
39. In view of the dismissal of the appeal, the civil application No. 4005 of 2012 does not survive and accordingly stands disposed of.",,,,,,,
