Vishal vs Bugga Singh and others

K. Kannan, J.—The appeal is for seeking compensation for injuries suffered in a motor accident that took place on 21.08.2001. The boy was aged 11 years and he was said to be run over by a tractor in his pelvic region. There had been a pereneal injury and colostomy was done. There had been a fracture of the left ileac bone as well as the fracture right medial epicondytes. He has three spells of treatment from 21.08.2001 to 20.10.2001, 26.11.2001 to 01.12.2001 and 10.12.2001 to 20.12.2001 for a period of 77 days. Discharge summary reveals the nature of surgeries done and the period of hospitalisation as mentioned above. The post operative observations reveal that the patient gone through an uneventful period and discharged on full satisfactory condition. The boy had medi-claim coverage and the amount of Rs.1,70,000/- had been admittedly recovered from the National Insurance Company towards the medical expenses incurred. The Tribunal dismissed the petition holding that since he had been fully covered under the policy and he had the benefit of recoveries, the claim before the Tribunal was not competent.

The counsel appearing on behalf of the appellant contends that the medi-claim recovered through insurance company cannot be deducted because the amount was paid in consideration for premium paid and the tort feasor or the insurer cannot take the benefit of any recoveries obtained in a medi-claim policy. The further contention is that the Tribunal has failed to make out provision for attendant charges, special diet and transportation which were not covered under the medi-claim policy and had also not properly assessed the claim for damages for pain and suffering.

A run over of tractor of a small boy over the lower abdominal region ought to have been exceedingly painful and the major surgeries which have been undertaken ought to have extremely painful. Considering the fact that the body had three fractures in the most sensitive areas of the body and he also underwent surgeries on three occasions, I will make a provision for pain and suffering at relatively higher sum of Rs.75,000/-. I will also make provision for attendant charges at Rs. 10,000/-, special diet at another Rs.10,000/- and transportation for Rs.5000/-.

The issue of whether the amount realised through medi claim policy could be deducted or not has been subject of consideration in several cases, all of which hold that the amount is bound to be deducted. The only benefit given is the amount paid as premium to be claimed against the insurer. In Iffco Tokio General Insurance Co. Ltd. v. Shambhu Pathak and others, 2013 (1) TAC 313, the Delhi High Court held that a claimant would not be entitled to claim the reimbursement under same head from insurer of offending vehicle when an amount under medi-claim policy had been recovered. The same proposition is also held by the Madhya Pradesh High Court in Jitendra Singh Jain v. Rahul Singh Parihar and others, 2008 (5) MPHT 336.

I have no definite evidence about the amount paid as premium for the medi-claim policy but I am prepared to assume that he could have spent about Rs.5000/- and make it part of the claim. Though the claimant contended that he had spent about Rs.4 lacs, it was brought out at the time of trial that he had recovered Rs.1,70,000/- from the medi claim policy. The total amount covered through the medical bills is even less than the amount recovered through medi claim policy.

Under the circumstances, the total compensation payable shall be Rs.1,05,000/- with interest @7.5% from the date of petition till the date of payment. The liability shall be on the insurance company.

The appeal is allowed.