Andhra Pradesh High Court – Amravati
Krishnasish Chanda vs Naveen Kumar 2 Others on 18 June, 2025
Author: B Krishna Mohan
Bench: B Krishna Mohan
1
THE HON'BLE SRI JUSTICE B.KRISHNAMOHAN
AND
THE HON'BLE SRI JUSTICE A. HARI HARANADHA SARMA
M.A.C.M.A.No.1656 of 2015
JUDGMENT:
[ per Hon’ble Sri Justice A.Hari Haranadha Sarma]
I. Introduction:-
1. [i] This MACAMA filed under Section 173 of Motor Vehicles Act
[for short ‘M.V. Act], is directed against the Order and Decree dated
29.04.2015 passed in M.V.O.P.No.501 of 2012 by the Motor Accidents
Claims Tribunal-cum- VII Additional District Judge, Visakhapatnam [for
short ” MACT”].
[ii] Claimant before the learned MACT is the appellant before this
Court. His claim made for Rs.70,00,000/- was allowed in part awarding a
compensation of Rs.3,35,000/-.
[iii] Feeling aggrieved by the said order and decree, present appeal
is filed.
2. 1st respondent herein is the driver and the 2 nd respondent herein is
the owner of the Maruthi Car bearing No.AP 31 BD 2630 [for short ‘the
offending vehicle’], which was insured with the 3rd respondent.
3. For the sake of convenience, parties will be herein after referred to as
the claimant and the respondents, as and how they are arrayed, in the
impugned proceedings.
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II. Case of the claimant: 4. [i] On the fateful day viz., on 30.12.2010 at about 8.45 p.m.,
claimant was travelling on his scooter bearing No.AP 31 A 7102 along with
his son as pillion rider, on the road leading from Maddilapalem junction to III
Town Police Station and when they reached A.U. Engineering college, the
offending vehicle came in opposite direction, driven by the 1 st respondent in
a rash and negligent manner with high-speed and dashed the scooter on
which the claimant was travelling, whereby the accident occurred and the
claimant sustained grievous injuries and his son sustained simple injuries.
They were shifted to Seven Hills Hospital.
[ii] Claimant has undergone treatment as in-patient in Seven Hills
Hospital from 30.12.2010 to 8.2.2011. He has suffered the following
injuries:
1) IT fracture femur right, 2) S/c fracture femur 3) Rt.com. fracture
proximal 1/3rd femur, 4) Lt. fracture medical condyle Lt. tibia 5)
Multiple facture ribs and 6) fracture calvicle Lt.
[iii] Petitioner further sustained injury to the spleen, forehead and
right eye lid. He has also sustained intestinal perforation of size 2cm
diameter in the jejunum.
[iv] He has undergone Laparectomy, splenectoy and internal
resection, by a surgical gastroenterologist.
3
[v] Again the petitioner was admitted in Seven Hills Hospital on
10.03.3011 for 2 days and on 19.07.2011 for further two days and finally
reported to his work on 06.06.2011. For 5 months, he was bed ridden
undergoing treatment as in patient and out-patient.
[vi] Most of the bills paid to the Hospital directly by Steel Plant
authorities, where he was working.
[vii] By the date of accident, the claimant was aged ’46’ years,
working as Assistant General Manager in Rashtriya Ispat Nigam Ltd.,
Visakhapatnam Steel Plant. Though he resumed to his office after
treatment, he was not comfortable and suffering from several difficulties and
he lost several privileges of life. He has been suffering from pain in both
knees, restriction of movement. There is a shortening of left lower limb of
about 4 cm. Hence, there is limping while walking.
[viii] He is suffering partial and permanent disability of 50%. He had
to engage attendant during treatment and hired car to move. He had to
engage a driver for attending the office from his home.
[ix] Further he was in hospital for 45 days continuously, there was
necessity of transportation of family members and attendants. Even during
5 months bed rest and intermittent treatments, he had to incur expenditure
for transportation to hospital and for extra nourishment. His scooter got
damaged. Now he cannot drive the vehicles. He had to incur expenditure
towards driver’s wages etc., he has availed142 days of Earned Leave from
4
December 2010 to August 2011 due to the accident., which costs about
Rs.4,00,000/-.
[x] He has undergone more than 5 surgeries for the factures.
Nails were inserted, undergone plastic surgery. Normally plates, nails and
screws are to be removed after some time, but in the case of the petitioner,
they cannot be removed since number of plates, nails and screws are fixed
to him during the surgeries. He has to adjust throughout his life.
[xi] The claimant cannot squat, jump, run or even walk fastly. His
movements are restricted and he cannot play with children. He lost all fun
in life. He lost amenities, comforts and capacity for enjoying the life.
Spleen is an important organ in the human body, which controls the bacteria
in blood stream but the same has been removed, therefore, the ability to
resist infections is also lost. His expectation of life is also reduced by 5
years and he has lost conjugal bliss also. Hence, he is entitled for just and
reasonable compensation of Rs.70,00,000/- in all.
5. The respondents 1 and 2/ driver and owner of the offending vehicle,
remained ex parte.
III. Case of the Respondent No.3/Insurance Company:
6. The petitioner is put to strict proof of all the allegations made,
particularly with regard to manner of accident, negligence of the driver of the
offending vehicle. Nature of injuries suffered, treatment undergone, effect
5
of injuries. Age, occupation and income of the claimant, loss of income etc.
The negligence of the claimant is the cause for the accident. As he has
taken sudden right turn to cross the busy road without bothering the traffic,
hence, he alone is responsible for the accident. Therefore, the claimant is
not entitled for any compensation.
7. On the strength of pleadings, learned MACT settled the following
issues for trial:
1) Whether the accident took place due to rash and negligent
driving of the driver of the crime vehicle i.e., Maruthi Car bearing
No.AP 31 BD 2630 resulting in injuries to the petitioner?
2) Whether the petitioner is entitled for compensation and if so, to
what amount and from against which of the respondents?
3) To what relief?
IV. Evidence before the learned MACT:
8. Oral and Documentary evidence:-
For the Claimant For the Respondents
Ex.No. Description Ex.No. Description
Ex.A1 Attested copy of F.I.R. in Cr.No.327 of - Nil-
2010
Ex.A2 Attested copy of Charge Sheet.
Ex.A3 Attested copy of wound certificate.
Ex.A4 Attested copy of M.V.I. Report
Ex.A5 Copy of Discharge Summary issued by
Seven Hills Hospital for the period from
10.03.2011 to 12.03.2011
Ex.A6 Copy of Discharge Summary issued by
Seven Hills Hospital, for the period from
19.07.2011 to 25.07.2011.
Ex.A7 Copy of Discharge Summary issued by
Seven Hills Hospital, for the period from
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19.07.2011 to 21.07.2011.
Ex.A8 Copy of Insurance Policy valid from
20.09.2010 to 19.09.2011
Ex.A9 Copy of Driving Licence of Respondent
No.1
Ex.A10 Copy of Medical Fitness Certificate issued
by SevenHills Hospital, dated 04.06.2011
Ex.A11 Copy of Disability Certificate issued by
SevenHills Hospital, dated 17.08.2011
Ex.A12 Copy of Certificate issued by Steel Plant,
showing the details of earned leaves
availed by the petitioner
Ex.A13 Bunch of X-rays [2 nos.]
Ex.A14 Discharge Summary issued by SevenHills
Hospital, for the period from 30.12.2010 to
08.2.2011.
Ex.A15 Discharge Summary issued by Seven Hills
Hospital for the period from 10.03.2011 to
12.3.2011
Ex.A16 Discharge Summary issued by SevenHills
Hospital, from 19.07.2011 to 21.7.2011
Ex.A17 Disability Certificate issued by Medical
Board.
Ex.A18 Original Certificate issued by Steel Plant,
dated 08.08.2011 showing the details of
earned leaves availed by the petitioner.
Witnesses examined Witnesses examined
PW.1 Krishnasish Chanda
[Claimant / Petitioner] -None-
PW.2 Sangamkitra Paul Choudhary
[wife of the claimant]
PW.3 Kona Govinda
[ claimant's Car driver]
PW.4 Dr.N.Vinod kumar
[Physiotherapist in Seven Hills Hospital,
Visakhapatnam]
PW.5 Dr.J.M. Shah
[Consultant Orthopaedic Surgeon, Seven Hills
Hospital, Visakhapatnam]
V. Findings of the learned MACT:-
9. [i] Evidence of claimant as PW.1 coupled with the documentary
evidence, vide Ex.A1-FIR, Ex.A2-Charge Sheet, Ex.A3-wound Certificate
and Ex.A4, MVI report vindicating the contention of the claimant, as to
7negligence of the driver of the offending vehicle, and his evidence did not
shake even after the cross-examination. There is no rebuttal evidence from
the Insurance Company. Therefore, the accident and negligence of 1 st
respondent, as the cause for the accident stands proved. Accordingly, the
issue touching the negligence is answered in favour of the claimant.
[ii] The claimant relied on the oral evidence of PW.5 coupled with
Ex.A14 to Ex.A16, Discharge Summaries dated 08.02.2011, 12.03.2011
and 21.07.2011 to prove the effect and nature of injuries, mode and period
of treatment. Evidence of PW.5 coupled with Ex.A14-Discharge Summary
shows that the petitioner got admitted on 30.12.2010 with a complaint of
pain of lower limb, chest pain over the forehead, having history of road
traffic accident. The evidence further reveals (7) injuries,
operations/surgeries conducted on 03.01.2011, 12.01.2011, 26.01.2011,
31.12.2010 readmission on 19.07.2011.
[iii] Basing on the evidence, claimant’s entitlement for
compensation is as follows:-
1. Pain and suffering Rs.10,00,000/-
2. Physiotherapy Rs.28,000/-
3. Loss of earning during the period of Rs.4,00,000/-
treatment, rests etc., in view of the
availing Earned Leave
4. Transportation Charges Rs.20,000/-
[@Rs.4000/- p.m.]
5. Extra nourishment [@Rs.4ooo/- p.m.] Rs.20,000/-
6. Attendant charges Rs.15,000/-
7. Loss of damages, cloths etc. Rs.1000/-
8. Damages to Schooter Rs.6000/-
9. Charges for availing driver for travel -Nil-
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10. Towards loss of amenities 1,75,000/-
[@Rs.15,000/- p.a.]
(From 47 years of age of the petitioner to
65years average expectancy of life.)
11. Loss of expectation of life -Nil-
12. Impairment of physiological functions -Nil-
13. Loss of privilege of sexual life Rs.5,00,000/-
_______________
Total Rs.21,55,000/-
[iv] Since the claimant received Rs.18,20,000/- under Group
Insurance Policy obtained through the employer, and as per the authorities
relied by the 3rd respondent- Insurance Company viz., ICICI Lombard
General Insurance Co., Ltd., Vs. Swatantrata Sharma and Ors.1, National
Insurance Co., Ltd., V.Shiela Avinashi and Ors2., Helen C. Rebello V.
Maharashtra S.R.T.C.3, the amount paid under Group Insurance, is liable to
be deducted. Hence, the claimant’s entitlement is for Rs.3,35,000/-
[Rs.21,55,000/ – Rs.18,20,000/-].
VI. Grounds/Arguments in the Appeal:
For the Appellant / claimant:-
10. [i] Learned MACT grossly erred in not granting compensation
under various other heads and the compensation awarded is meager.
[ii] The learned MACT ought to have seen that the appellant
suffered permanent disability.
[iii] The judgments of the Hon’ble Supreme Court are not properly
understood by the learned MACT.
1
2014 ACJ 1256 Delhi HC(SB)
2
2014 ACJ 320 Delhi HC (SB)
3
1999 1 SCC 90, SC DB
9
[iv] The Scheme under which the Group Insurance obtained from
the employer is different from the entitlement under M.V. Act.
[v] Compensation received under Group Insurance Scheme
cannot be deducted.
[vi] The obligation under Group Insurance Policy and the statutory
obligation in terms of Motor Vehicles Act are entirely different and one shall
not overlap the other.
For the Respondent No.3-Insurance Company:-
11. [i] The findings of the learned MACT on the liability of the
Insurance Company particularly deducting the compensation already
received pursuant to Group Insurance Policy obtained through the
employer is justified.
[ii] The quantum of compensation claimed and arrived is
excessive and there are no grounds to interfere with the order and decree
under challenge and appeal is fit to be dismissed with costs.
12. Perused the pleadings and evidence on record. Thoughtful
consideration is given to the arguments advanced by the both sides.
13. There is no appeal by the Insurance Company. Therefore, the
occurrence of the accident, negligence of the driver of the offending vehicle,
claimant sustaining injuries due to the pleaded accident, the negligence if
any on the part of claimant in occurrence of the accident are all out of
dispute.
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14. The points and questions arises for determination and answers are :-
1) Is the 3rd respondent-Insurance Company is entitled to claim an
adjustment or credit, for the amount received by the claimant, under
Group Insurance Policy, obtained through employer and to reduce the
claimant’s entitlement accordingly?
2) What is just and reasonable compensation to which the
claimant is entitled? And whether the quantum of compensation
awarded by learned MACT require modification?
3) What is the liability of the respondent No.3-Insruance
Company?
4) What is the result of the appeal? Point No.1:-
15. Written statement/counter filed on behalf of the 3rd respondent-
Insurance Company vide para-5 is indicating that the employer of the
claimant had insured all the employees and the claimant has claimed
substantial amount from the insurer, hence, there cannot be double benefit.
Evidence regarding receiving of amount by the claimant and its nature
as well as the basis for such receiving:-
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16. During the cross-examination of claimant/PW.1, it was elicited that
his scooter was validly insured and he did not make any claim, from his
Insurance Company. He has admitted that he was paid under personal
claim for an amount of Rs.18,20,000/- by New India Assurance Company
under Group Insurance Policy.
17. On behalf of the respondent no witnesses were examined.
18. No further questions were put as to the Group Insurance Policy.
Except the admission of claimant as to receiving of amount under group
Insurance Policy, there is no denial from respondent No.3-Insurance
Company from the factual perspective, as to contribution of claimant
towards premium under separate contract (Group Insurance Policy).
19. The learned MACT understood the context that claimant shall not get
benefit twice for the same accident, when the claimant is benefitted under
other source, it has to be deducted from the compensation awarded under
Motor Vehicle Accident claim.
20. Learned MACT has relied on the observations of Delhi High Court
made in:
1) ICICI Lombord Insurance Company Ltd., Vs. Swatantra Sarma
and Ors.4 , where under the medi-claim Policy was obtained and
medical expenditure reimbursed was permitted to be deducted.
4
2014 ACJ 1256
12
2) National Insurance Company Ltd. Vs.Shiela Avinashi and
Ors.5, wherein also the claimant received amount under medi-
claim Policy and the same was given deduction towards medical
expenditure.
21. Further, learned MACT has relied on the observations of Hon’ble
Apex Court made in a case initially Helen C Rebello (MRs.) and Others
Vs. Maharasthra State Road Transport Corporation and Anr 6, for the
purpose of interpreting the pecuniary advantages received by the claimants
and deduction of such advantages from the compensation payable.
22. In the light of the general principle of computation of loss and gain
and consequential adjustment of what is gain and what is loss, learned
MACT understood that a person cannot gain twice towards from two
sources on the happening of same incident.
23. In Helen C. Rebello‘s case, the Hon’ble Apex Court while referring to
Motor Vehicle Accident’s Act 1939, Fatal Accidents Act, 1855 and Motor
Vehicles Act, 1988 made relevant observations touching various aspects,
touching the issue viz., pecuniary advantage from para 33 to 36 of the
judgment, which are as follows:-
“33. Thus, it would not include that which claimant receives on account
other form of deaths, which he would have received even apart from
accidental death. Thus, such pecuniary advantage would have no correlation
to the accidental death for which compensation is computed. Any amount5
2014 ACJ 320
6
1999(1) SCC 90
13received or receivable not only on account of the accidental death but that
would have come to the claimant even otherwise, could not be construed to
be the “pecuniary advantage”, liable for deduction. However, where the
employer insures his employee, as against injury or death arising out of an
accident, any amount received out of such insurance on the happening of
such incidence may be an amount liable for deduction. However, our
legislature has taken not of such contingency, through the proviso of Section
95. Under it the liability of the insurer is excluded in respect of injury or death,
arising out of, in the course of employment of an employee.
34. 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 Vehicle Act. There is no co-relation 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 co-relation 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.
35. Broadly, we may examine the receipt of the provident fund which
is a deferred payment out of the contribution made by an employee during
the tenure of his service. Such employee or his heirs are entitled to receive
14this amount irrespective of the accidental death. This amount is secured, is
certain to be received, while the amount under the Motor Vehicles Act is
uncertain and is receivable only on the happening of the event viz., accident
which may not take place at all. Similarly, family pension is also earned by an
employee for the benefit of his family in the form of his contribution in the
service in terms of the service conditions receivable by the heirs after his
death. The heirs receive family pension even otherwise than the accidental
death. No co-relation between the two. Similarly, life insurance policy is
received either by the insured or the heirs of the insured on account of the
contract with the insurer, for which insured contributes in the form of
premium. It is receivable even by the insured, if he lives till maturity after
paying all the premiums, in the case of death insurer indemnifies to pay the
sum to the heirs, again in terms of the contracts for the premium paid. Again,
this amount is receivable by the claimant not on account of any accidental
death but otherwise on insured’s death. Death is only a step or contingency in
terms of the contract, to receive the amount. Similarly any case, bank
balance, shares, fixed deposits, etc. though are all a pecuniary advantage
receivable by the heirs on account of one’s death but all these have no co-
relation with the amount receivable under a statute occasioned only on
account of accidental death. How could such an amount come within the
periphery of the Motor Vehicles Act to be termed as ‘pecuniary advantage’
liable for deduction. When we seek the principle of loss and gain, it has to be
on similar and same plane having nexus inter so between them and not to
which, there is no semblance of any co-relation. The insured (deceased)
contributes his own money for which he receives the amount has no co-
relation 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 of 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.
15
36. As we have observed the whole scheme of the Act, in relation of the
payment of compensation to the claimant, is 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 110-B of 1939 Act. This is also visible through the provision
of Section 168(1) under the Motor Vehicles Act, 1988 and Section 92-A 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 92-B ensures that the claim for compensation under
Section 92-A is 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. For all these consideration we have no hesitation to
hold that such High Courts were wrong in deducting the amount paid or
payable under the life insurance by giving restricted meaning to the
provisions of the Motor Vehicles Act basing mostly on the language of
English statutes and not taking into consideration the changed language and
intends of the legislature under various provisions of the Motor Vehicles Act,
1939.”
24. The Hon’ble Supreme Court in Sebastiani Lakra and Ors. Vs.
National Insurance Company ltd. And Anr 7., observed in para 6 that
even while following traditional view of taking into account the loss of
7
2018 LASE Suit SC 1039=AIR 2018 SC 5034=2019(17)SCC 465
16
income and the benefits accrued, it is well settled position of law that
the tort- feasor cannot take benefit of the munificence or gratituity of
others.
25. In Sebastiani Lakra‘s case [cited 7 supra] the Hon’ble Apex Court
referred to Helen C. Rebello‘s case [cited 6 supra] Patricia Jean
Mahajan’s8 case, Vimal Kanwar Kishore Dan9’s case and Shashi
Sharma10‘s case and observed that the principle in Helen C. Rebello’s
case is followed.
26. The context in Sebastiani Lakra‘s case [cited 7 supra] before the
Supreme Court, which was considered by the three Judges Bench, is that
an objection raised by the Insurance Company for adjustment of the amount
of Rs.50,082/- paid to the claimants under Employees Family Benefit
scheme. Considering the same, when the compensation payable was
reduced, it was held that such deduction cannot be allowed. Relevant
observations made in para-12 to 14 of the judgment, they are as follows:-
“12. The law is well settled that deductions cannot be allowed from the
amount of compensation either on account of insurance, or on account of
pensionary benefits or gratuity or grant of employment to a kin of the
deceased. The main reason is that all these amounts are earned by the
deceased on account of contractual relations entered into by him with others.
It cannot be said that these amounts accrued to the dependants or the legal
heirs of the deceased on account of his death in a motor vehicle accident.
8
2002(6) SCC 281
9
2013(7) SCC 476
10
2016(9) SCC 627
17The claimants/dependants are entitled to “just compensation” under the
Motor Vehicles Act as a result of the death of the deceased in a motor
vehicle accident. Therefore, the natural corollary is that the advantage which
accrues to the estate of the deceased or to his dependants as a result of
some contract or act which the deceased performed in his lifetime cannot be
said to be the outcome or result of the death of the deceased even though
these amounts may go into the hands of the dependants only after his death.
13. As far as any amount paid under any insurance policy is concerned
whatever is added to the estate of the deceased or his dependants is not
because of the death of the deceased but because of the contract entered
into between the deceased and the insurance company from where he took
out the policy. The deceased paid premium on such life insurance and this
amount would have accrued to the estate of the deceased either on maturity
of the policy or on his death, whatever be the manner of his death. These
amounts are paid because the deceased has wisely invested his savings.
Similar would be the position in case of other investments like bank deposits,
share, debentures, etc. The tortfeasor cannot take advantage of the foresight
and wise financial investments made by the deceased.
14. As far as the amounts of pension and gratuity are concerned, these
are paid on account of the service rendered by the deceased to his
employer. It is now an established principle of service jurisprudence that
pension and gratuity are the property of the deceased. They are more in the
nature of deferred wages. The deceased employee works throughout his life
expecting that on his retirement he will get substantial amount as pension
and gratuity. These amounts are also payable on death, whatever be the
cause of death. Therefore, applying the same principles, the said amount
cannot be deducted.”
27. Further, the Hon’ble Apex Court in Vimal Kanwar and Ors. Vs.
Kishore Das11, while interpreting the pecuniary advantages received,
observed that the salary receivable by the dependents upon compassionate
11
2013(7) SCC 476
18
appointment of a victim also does not come under pecuniary advantage on
par with Provident fund, pension, Life Insurance amount receivable by the
claimant and the same do not come within the purview of Motor Vehicles
Act to be termed as pecuniary advantage. Relevant observations are made
while referring to para 35 of the Helen Rebello‘s case, at para 19 of the
judgment.
28. From the precedential guidance, the amounts received from what
sources cannot be deducted from the compensation payable to the victims
in a motor accident and which do not fall under ‘pecuniary advantage’ for
the purpose of balancing loss and gain can be illustrated as follows:-
1) Salary received by the dependent upon compassionate
appointment due to victim’s death cannot be termed as ‘pecuniary
advantage’.
2) Pension is not pecuniary advantage.
3) Provident Fund is not a pecuniary advantage.
4) Life Insurance amount receivable by the claimants (L.Rs. of
deceased) is not a pecuniary advantage.
5) Bank balances received by the legal representatives of a
deceased cannot be pecuniary advantage.
6) Share, share values, fixed deposit matures to the heirs are not a
pecuniary advantage.
29. A person may take a security measure with an act of wisdom. That
cannot be a gain towards a tort-feasor. The provisions of Section 1(a) of
Fatal Accidents Act, 1955 and Section 110 of Motor Vehicles Act, 1939 are
19
different. The provisions of Motor vehicles Act indicate the legislative
intention conferring visible benefit to the claimants, by securing
compensation casting obligation on the tort-feasor and insurer.
30. The application of general principle under common loss and gain for
compensation under Motor Vehicles Act, must co-relate to the type of
injuries or deaths. In Helen Rebello‘s case, the point relating to the
benefits that could be received by the legal representatives in case of
deaths are widely considered with reference to the Insurance Policy
obtained for the benefit of the deceased/victim. From para-35 of the
judgment in Helen Rebello‘s case, it can be inferred that when the benefit
is receivable by a claimant, both from the employer or under M.V. Act, is
without his contribution, then the profit and loss theory would apply.
However, if a benefit or an amount is earned by his own labour or
contribution, that pecuniary cannot be balanced out of the amount received
as compensation under M.V. Act, particularly when there is no co-relation
between two amounts. An amount of loss and gain under one contract,
cannot be made applicable to the loss and gain of another contract.
Similarly an amount receivable under statute may not have relation to an
amount earned by an individual in all cases.
31. There is no evidence indicating on what basis the amount of
Rs.18,20,000/- is paid by the New India Assurance Company to the
claimant, pursuant to Group Insurance Policy. Generally, the contribution of
20
the beneficiary to the Policy is the basis in Group Insurance Policy. It may
be either by way of direct contribution or deduction from the salary. In any
case it is a contract independent. If such a security measure taken
individually, with the wisdom, such a wise effort of a vigilant and responsible
person cannot be an advantage to the tort-feasor.
32. In view of the above discussion, point No.1 is answered against the
Insurance Company and in favour of the claimant concluding that the
Insurance Company is not entitled to claim adjustment and credit of the
amount received by the claimant under Group Insurance Policy through
employer.
Point No.2:-
Precedential Guidance:
33. A reference to parameters, for quantifying the compensation under
various heads, addressed by the Hon’ble Apex Court is found necessary, to
have standard base in the process of quantifying the compensation, to
which the claimant is entitled.
(i) With regard to awarding just and reasonable quantum of
compensation, the Hon’ble Supreme Court in Baby Sakshi Greola vs.
Manzoor Ahmad Simon and Anr.12, arising out of SLP(c).No.10996 of
2018 on 11.12.2024, considered the scope and powers of the Tribunal in
awarding just and compensation within the meaning of Act, after marshaling
entire case law, more particularly with reference to the earlier observations
12
2025 AIAR (Civil) 1
21
of the Hon’ble Supreme Court made in Kajal V. Jagadish Chand and
Ors.13, referred to various heads under which, compensation can be
awarded, in injuries cases vide paragraph No.52, the heads are as follows:-
S. No. Head Amount (In ₹)
1. Medicines and Medical Treatment xxxxx
2. Loss of Earning Capacity due to Disability xxxxx
3. Pain and Suffering xxxxx
4. Future Treatment xxxxx
5. Attendant Charges xxxxx
6. Loss of Amenities of Life xxxxx
7. Loss of Future Prospect xxxxx
8. Special Education Expenditure xxxxx
9. Conveyance and Special Diet xxxxx
10. Loss of Marriage Prospects xxxxxx
_________
Total Rs. ...xxxxxx
_________
(ii). Hon'ble Apex Court in Yadava Kumar Vs. Divisional
Manager, National Insurance Company Limited and Anr.,14 vide para
No.10, by referring to Sunil Kumar Vs. Ram Singh Gaud15,as to
application of multiplier method in case of injuries while calculating loss of
future earnings, in para 16 referring to Hardeo Kaur Vs. Rajasthan State
Transport Corporation16, as to fixing of quantum of compensation with
liberal approach, valuing the life and limb of individual in generous scale, in
para 17 observed that :-
“The High Court and the Tribunal must realize that there is a distinction between
compensation and damage. The expression compensation may include a claim
for damage but compensation is more comprehensive. Normally damages are
given for an injury which is suffered, whereas compensation stands on a slightly
higher footing. It is given for the atonement of injury caused and the intention13
2020 (04) SCC 413
14
2010(10)SCC 341
15
2007 (14) SCC 61
16
1992(2) SCC 567
22behind grant of compensation is to put back the injured party as far as possible in
the same position, as if the injury has not taken place, by way of grant of
pecuniary relief. Thus, in the matter of computation of compensation, the
approach will be slightly more broad based than what is done in the matter of
assessment of damages. At the same time it is true that there cannot be any rigid
or mathematical precision in the matter of determination of compensation.”
(iii). In Rajkumar Vs. Ajay Kumar and Another17 vide para No.19,
the Hon’ble Apex Court summarized principles to be followed in the process
of quantifying the compensation after referring to socio economic and
practical aspects from which, the claimants come and the practical
difficulties, the parties may face in the process of getting disability assessed
and getting all certificates from either the Doctors, who treated, or from the
medical boards etc., it is observed that :-
“…We may now summarise the principles discussed above :
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss
of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a
person, cannot be assumed to be the percentage of loss of earning capacity. To put it
differently, the percentage of loss of earning capacity is not the same as the
percentage of permanent disability (except in a few cases, where the Tribunal on the
basis of evidence, concludes that percentage of loss of earning capacity is the same
as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him
subsequently to assess the extent of his permanent disability can give evidence only
in regard the extent of permanent disability. The loss of earning capacity is something
that will have to be assessed by the Tribunal with reference to the evidence in
entirety.
17
2011 (1) SCC 343
23
(iv) The same permanent disability may result in different percentages of loss of
earning capacity in different persons, depending upon the nature of profession,
occupation or job, age, education and other factors…”
(iv) In Sidram vs. United India Insurance Company Ltd. and
Anr.18 vide para No.40, the Hon’ble Apex Court referred to the general
principles relating to compensation in injury cases and assessment of future
loss of earning due to permanent disability by referring to Rajkumar‘s case,
and also various heads under which compensation can be awarded to a
victim of a motor vehicle accident.
(v) In Sidram‘s case, reference is made to a case in R.D.
Hattangadi V. Pest Control (India) (P) Ltd.19. From the observations
made therein, it can be understood that while fixing amount of
compensation in cases of accident, it involves some guess work, some
hypothetical consideration, some amount of sympathy linked with the
nature of the disability caused. But, all these elements have to be viewed
with objective standards. In assessing damages, the Court must exclude all
considerations of matter which rest in awarding speculation or fancy, though
conjecture to some extent is inevitable.
Analysis of Evidence:
34. [I] F.I.R. is registered under Sections 337, 338 IPC. As per
wound certificate/Ex.A3, the petitioner/claimant suffered six grievous injuries
18
2023 (3) SCC 439
19
1995 (1) SCC 551
24
reflected therein. The claimant as PW.1 referred to six injuries and some
other injuries also, which are mentioned in the wound certificate.
[II] PW.2, wife of the claimant deposed about the accident and the
injuries sustained by her husband and treatment taken in Seven Hills
Hospital on 10.03.2011 for two days, on 19.07.2011 for two days, resuming
to his work on 06.06.2011 and bed rest for (5) months, discomfort of the
claimant due to the surgeries undergone for various fractures, loss of
spleen. She has also stated that the claimant lost privileges of spending
happy moments in bed room, resulting in mental agony. She has added
about she consoling her husband that he need not have mental agony for
missing the conjugal bliss, particularly sensual satisfaction and that she
cannot say more being a lady.
[III] PW.3, one Kona Govinda is said to be driver engaged by the
claimant, for assisting the claimant. He has stated that salary of Rs.4000/-
per month is paid for 1st year, Rs.5000/- per month paid for II year and
Rs.6000/- per month paid in III year and he has denied the suggestion that
no amount was paid accordingly.
[IV] PWs.4 and 5 are Doctors, who treated the claimant.
[V] Summary of evidence of PW.4 is as follows:-
1. PW.4 treated the claimant as in-patient.
25
2. Treatment was continued even after discharge from hospital.
3. Claimant suffered multiple injuries mentioned in Ex.A3/wound
certificate.
4. Physiotherapy was given to post surgery for those injuries.
5. Claimant was visiting PW.4, whenever he had any complaint.
6. Claimant approached PW.4, with the complaint of his sexual
inability due to hip bone and femur fractures.
7. PW.4 has issued two (2) receipts, for Rs.20,500/- and Rs.7500/-
towards physiotherapy charges which are covered under Exs.A19
and Ex.A20.
8. During the cross-examination, he has stated that
Dr.J.M.Shaw/PW.5, referred the claimant to PW.4, by giving
specific instructions for lower limb exercises and knee bending
exercises.
9. By the time of discharge on 08.02.2011, general condition of the
claimant was satisfactory.
10. PW.4 used to attend one or two patients privately in a month.
11. Seven Hills Hospital authorities collect fees from the patients
directly.
12. From 09.02.2011 to 09.03.2011, PW.4 attended the
claimant/petitioner regularly.
13. Even thereafter, on 14.03.2011 to 04.06.2011, he attended
PW.1 regularly.
14. After physiotherapy, the claimant improved considerably. He
has denied the suggestion that Ex.A18 and Ex.A19 are fabricated.
26
[VI] The summary of evidence of PW.5 is as follows:-
1. He is Consultant Orthpaedic Surgeon, Seven Hills
Hospital.
2. Ex.A5 is the Discharge Summary dated 08.02.2011,
pertaining to the claimant.
3. PW.5 identified the claimant before the Court.
4. The admission was with the history of road traffic
accident and pain of lower limb, chest and pain over forehead.
5. There was no distal neuro vascular deficit lower limbs.
6. There was tenderness over left ribs and left clavicle and
also there was CLW (Consition Lacerated Wound) over forehead
and right upper eye lid.
7. X-rays show:
1) I.T. fracture femur
2) S/C fracture femur
3) Old operated fracture proximal end Tibia
4) Comunited fracture proximal 1/3 femur (L)
5) Fracture Medical Condyle (L) Tibia
6) Multiple fracture ribs (L)
7) Fracture Clavicle (L)
8. USG (Ultra Sound) abdomen showed Splenic Laceration.
9. Patient was referred to surgical Gastro Surgeon and he
was operated on 03.01.2011.
10. Three surgeries were conducted i.e., 1) DHS, 2)Open
reduction Supra Condyle femur right and 3) Open reduction + T
buttress plates Tibia (L) were done under general anaesthesia.
11. An other surgery was done on 12.01.2011 during which
an interlocking nail fixation was done for fracture femur.
12. On 26.11.2011 interlocking screw fixations were done for
same fracture.
13. His colleague had done a surgery on 31.12.2010 under
GA exploratory aparotmy + spleenectory_ Intestinal resection
27anastomosis. Plastic surgeon had done suturing of forehead
and upper eye lid wound. He was discharged on 08.02.2011.
14 Ex.A15 is the Discharge Summary dated 12.03.2011. As per
Ex.A15, the claimant got admitted on 10.03.2011 and discharged on
12.03.2011.
15. He was admitted for physiotherapy purpose under Dr.Vinod
Kumar i.e., PW.4.
16. Ex.A6 is the Discharge Summary dated 21.07.2011. As per
Ex.A16 the claimant got admitted in the Hospital on 19.07.2011 with
a projecting screw from his right knee and the same was removed.
He was discharged on 21.07.2011.
17. On 17.08.2011, PW.5 examined the claimant and found 50%
disability and accordingly Ex.A17-Disability Certificate was issued.
18. Even by the date of giving evidence, the claimant was
attending for treatment.
19. Due to restriction of movement of lower limbs, the claimant
feels difficulty in his sexual life.
20. During the cross-examination, it is elicited that mall-union is no
mentioned in the Discharge Summary and he has added that it is not
possible to assess the same at the time of discharge.
21. Post surgery recovery is satisfactory.
22. As per Ex.A16, last discharge summary dated 21.07.2011, the
wounds are healed and the petitioner was fit to resume his duty.
35. Other relevant factors and material contribute for assessing the
quantum of compensation are:-
28
1) Medical expenditure was reimbursed by the Steel Plant where the
claimant was working
2) Petitioner is suffering 50% disability, which is permanent in nature.
3) Ex.A17, Disability Certificate is issued by the Medical Board, is
indicating the disability at 55% and the same is permanent in nature.
4) The petitioner admitted that there is no loss in income and he has
resumed to work and attending the job.
5) The claimant is facing discomfort on various aspects, including
missing of sensual satisfaction.
6) Learned MACT considered the loss of earning, during the
period of treatment and extra nourishment etc. For the said period the
assistance of the driver for transportation etc., are required to be
considered, if not for the entire life, @5000/- p.m. for 6 months.
7) The permanent disability assessed at 55% might not have
contributed for the loss of income, due to continuation of employment. But
the same would compensate loss on several aspects. Claimant may not be
in a position to compete with others, the stress and trauma would lead to
slow down the performance etc.
8) The treatment of employer and the colleagues will be different.
There may be inexplainable humiliation etc..
9) Losing self-confidence and development of self-pity etc. also
required to be considered.
10) Under the head of permanent disability, though not on the basis
of pay the claimant is drawing but some reasonable compensation on
national basis is required to be awarded with some guess work.
29
38. In the light of the oral and documentary evidence available on record
and discussion made above with reference to authorities cited, the
entitlement of the claimant for compensation in comparison to quantum
arrived by the learned MACT is found as follows:
S.No. Head Granted by the Fixed by this
learned MACT Appellate Court
1. Medical exp. and physiotherapy Rs.28,000/- Rs.28,000/-
2. Partial loss of earnings during Rs.4,00,000/- Rs.4,00,000/-
the period of treatment etc.
3. Compensation under the head of -Nil- Rs.5,00,000/-
permanent disability
4. Transportation Charges Rs.20,000/- Rs.50,000/-
5. Pain and suffering Rs.10,00,000/- Rs.5,00,000/-
6. Future Treatment Nil Rs.2,00,000/-
7. Attendant Charges Rs.15,000/- Rs.50,000/-
[Rs.3000/- x 5 m]
8. Loss of amenities of Life and Rs.1,75,000/- Rs.2,00,000/-
discomfort
9. special diet and extra Rs.20,000/- Rs.50,000/-
nourishment
10. Compensation for loss of -Nil- Rs.2,00,000/-
expectation of life
11. Compensation for loss of privilege Rs.5,00,000/- Rs.5,00,000/-
of sexual life
12. a) Damage to cloths etc., 1000/- 1000/-
b) Damage to Scooter Rs.6000/- Rs.6000/-
13. Wages to the Car Driver - Nil- Rs.30,000/-
Total Rs.21,55,000/- Rs. 27,15,000/-
[-] Rs.18,20,000/-
[deduction of Group
Insurance Claim]
Balance = _____________
Rs.3,35,000/-
30
39. Learned MACT had deducted an amount of Rs.18,20,000/- paid by
the New India Assurance Company under Group Insurance Policy from the
compensation amount arrived at Rs.21,55,000/- and held that the claimant
is entitled for compensation of Rs.3,35,000/-.
40. In view of the discussions made and conclusions drawn under point
No.1 the Insurance Company is not entitled to claim adjustment and credit
of the amount received by the claimant under Group Insurance Policy.
Therefore, the claimant is entitled for compensation of Rs.27,15,000/- with
interest @7.5 % p.a. from the date of petition and till the date of realisation.
Hence, the impugned order and decree dated 29.04.2015 is require
interference and modification to that effect. Point No.2 is answered
accordingly.
Point No.3 :-
41. For the aforestated reasons and the conclusions drawn under points
1 and 2, the respondents 1 to 3 are found jointly and severally liable to pay
the compensation of Rs.27,15,000/- awarded by this Court. Point No.3 is
answered accordingly.
Point No.4:
42. In view of the above discussion and the conclusions drawn under
points 1 to 3, in the result, appeal is allowed.
31
[i] The compensation of Rs.3,35,000/- awarded under the
impugned order and decree dated 29.04.2015 is modified and enhanced to
Rs.27,15,000/- with interest @7.5%p.a., from the date of petition till the
date of realisation.
[ii] The respondents 1 to 3 are jointly and severally liable to pay
the compensation.
[iii] The claimant/petitioner is entitled to withdraw the entire
compensation amount at once, on deposit.
[iv] No costs in the facts and circumstances.
As a sequel, miscellaneous petitions, if any, pending in this appeal
shall stand closed.
________________________
JUSTICE B.KRISHNAMOHAN
__________________________________
JUSTICE A. HARI HARANADHA SARMA
Date: 18.06.2025
Pnr
