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 AM 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 v. V.S.Bijumon and others reported in 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 Tribunal went wrong in deducting 50% of the monthly income towards personal expenses cannot be sustained. A Division Bench of this Court in the decision in Sujatha.P and others v. M/s. Oriental Insurance Co. Ltd reported in [2017()5 KHC 568] has considered the issue and after referring to Sarla Verma v. Delhi Transport Corporation reported in [(2009) 6 SCC 121] held that, in a case where there is only one surviving dependent family member, 50% of the income has to be deducted. The 3rd claimant was examined as PW1. Even though in the chief affidavit he had stated that all the children are dependent on the patronage of the deceased, he has admitted in the cross-examination that he was an Architect living in Manipal, that the 2nd claimant was a doctor settled in England, that the 4th claimant was a journalist settled in Chennai working with Times of India and that the 1st claimant widow had retired from the Indian Navy and is earning pension. As such, it cannot be said that the children were financially dependent on the deceased. The counsel for the claimants relied on to the decisions in Smt. Manjuri Bera v. The Oriental Insurance Co Ltd and another reported in [2007 KHC 3300], National Insurance Co.Ltd vs Birender and others reported in [(2020) 11 SCC 356], and Rajesh and others v. Rajbir Singh and others reported in [2013(3) KLT 89] to contend that the deduction of 50% towards personal expenses is not warranted.

7. In Manjuri Bera (supra), the Hon'ble Supreme Court was considering whether a married daughter can be treated as a dependent of the deceased. The above decision did not consider the question regarding the amount to be deducted towards personal expenses of the deceased. What was held was that even if there is no loss of dependency, the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall not be less than the liability flowing from Section 140 of the Act. Section 140 dealt with no-fault liability and is no longer in the statute book after the amendment in 2019. In Birender (supra), the Apex Court considered whether major sons of deceased who are married and gainfully employed or earning, can claim compensation. The Court held that the claim will be maintainable under Section 166, but the quantum of compensation would depend on the extent of the dependency on the deceased parent. On facts, the Court found that the claimants were working as agricultural labourers on contract basis and were largely dependent on their mother, a Government servant, and in fact were staying with her. On a finding that the major sons were dependents, the Court directed deduction of one third of the income of the deceased towards her personal and living expenses. The said decision will not apply on the facts of the case on hand. Paragraph 22 of the judgment in Rajesh (supra), was relied on to submit that 1/4th was deducted from the income towards personal expenses of the deceased. However, the said decision was rendered in a case where the widow and three minor children were the claimants and the question was whether the amount to be deducted towards personal expenses should be 1/3rd or 1/4th. The said decision also will not apply to the present case.

8. Regarding the contention of the claimants that the monthly income of the deceased ought to have been treated as Rs.16,816/- instead of Rs.15,000/-, as against the claim of the insurer that the amount should have been Rs.11,816/- and not Rs.15,000/-, it is admitted that the deceased was receiving a sum of Rs.11,816/- towards monthly pension. The evidence on record (Exts.A22, A25, A26 and A27) establishes the claim that the deceased was a novelist, that he had receipts apart from the pension amount. PW1 has also given specific evidence regarding the above fact. The statement that the deceased was earning Rs.5,000/- apart from his pension has not even been challenged in the cross examination. I hence do not find any reason not to accept the above claim. The compensation under the head loss of dependancy has to be modified. The claimants will be entitled to a sum of Rs.5,04,480/-(16816x12x5x1/2). After deducting the sum of Rs.4,50,000/- awarded by the Tribunal, the claimants will be entitled to a sum of Rs.54,480/- under the above head.

9. Coming to the question whether amount received under the mediclaim policy should be deducted, the Tribunal had relied on the decision in V.S.Bijumon (supra). The counsel for the Insurer points out that the said decision has been overruled by a Division Bench of this Court in the decision in National Insurance Company Ltd. v. Akber Badsha reported in [2015(4) KLT 442]. The counsel for the claimants have relied on the decisions of the Apex Court in Helen v. Maharashtra State Road Transport Corporation reported in [1998 KHC 568] and United India Insurance Co. v. Patricia Jean Mahajan reported in [2002 KHC 986] and the judgments of the Calcutta High Court and the Bombay High Court in New India Assurance Co.Ltd. v. Bimal Kumar Shah and another reported in [2019 KHC 3384] and Royal Sundaram Alliance Insurance Co.Ltd v. Ajit Chandrakant Rakvi and another reported in and [2020 KHC 2926] respectively. Similar contentions taken relying on Helen (supra) and Patricia (supra), were considered by the Division Bench in Akber Badsha, and rejected. This Court in Akber Badsha (supra) found that the Apex Court in Helen (supra) while considering a claim under a life policy, had held that amounts received or receivable, not only on account of the accidental death but which would have been paid to the claimant even otherwise, cannot be construed as "pecuniary advantage" liable for deduction. The said principle was further explained in Patricia (supra), wherein the Apex Court held that deductions are admissible of such amounts that the claimant receives as benefit, as a consequence of the injuries sustained, which he would not have been otherwise entitled to. In the case on hand, the claim under mediclaim policy was received, for meeting the expenses at the Hospital, incurred solely owing to the accident and the same could not have been claimed otherwise. In Bimal Kumar Shah (supra), a Division Bench of the Calcutta High Court considered the above judgments of the Apex Court and the Division Bench judgment of this Court in Akber Badsha (supra) and took a view that the amounts received under Mediclaim policy is not deductible. The Calcutta High Court has drawn a distinction between the claims under an insurance policy and one under the Motor Vehicles Act as contractrual and statutory, respectively. The Court has held that the statutory liability cannot be reduced by amounts received under a contractual liability, to which the claimant becomes entitled on the basis of payment of premium. Even though the Court had referred to the judgment in Akber Badsha (supra), in my humble opinion, the reasoning in the judgment has not been considered. All that is stated is that all the judgments cited in support of deduction are rendered on the basis of a possible interpretation of the judgment in Helen Rebello (supra), but without considering the principles which control the entire ratio – that the liability of the insurer of the offending vehicle to pay compensation is statutory whereas the liability to pay a sum to the insured victim on payment of a premium paid from his own earnings is a contractual liability. With great respect, I am not able to accept the proposition contained in Bimal Kumar Shah (supra) and am in respectful agreement with the reasoning adopted in Akber Badsha (supra). The Calcutta High Court has also not considered the essential difference between a claim under a mediclaim policy and one under the Life Insurance policy and the fact that in the case of the former, it relates to a pecuniary loss.

10. I am of the opinion that the differentiation sought to be brought out by the Division Bench of the Calcutta High Court by treating the motor accident claim as a "statutory liability" and the mediclaim as a "contractual liability" is not justified and according to me there can be no such categorisation. The compensation under a motor accident is one based on negligent driving giving rise to a tortious liability. The Motor Vehicles Act has codified to a certain extent the manner in which a claim has to be preferred and the procedure to be followed in considering the claim. The Tribunal ascertains the quantum of compensation to be paid and also determines the persons who are liable to pay the compensation. So far as the liability of the Insurer is concerned, it depends on the motor vehicle policy which has been pressed into service. In a case where there is no valid insurance policy, the Insurer cannot be held liable. That is to say, the Tribunal does not find the Insurer liable on the basis of any statutory provision, but on the basis of the Insurance policy which covers the offending vehicle. There is a statutory obligation under Chapter XI of the Motor Vehicles Act,1988 that all motor vehicles should have a certificate of insurance, which should be in accordance with the requirements stated in Section 147 of the Act. Section 156 of the Act states about the effect of a certificate of insurance and Section 157 provides for transfer of Certificate of Insurance. The above provisions will clearly indicate that the liability of the Insurer is based on the Indemnity contract. To say that the liability of the insurer is a statutory liability hence, in my opinion not entirely correct.

11. The judgment

of the Bombay High Court in Ajit Chandrakant Rakvi (supra) is rendered following the judgment of the Calcutta High Court and the considerations in the previous paragraphs regarding the Calcutta High Court apply to the judgment of the Bombay High Court and are not being reiterated. In the light of the above, the 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. 12. In the result, the appeal is partly allowed and the amount of Rs.85,176/- received by the claimants towards mediclaim is deducted from the total compensation. So also, the cross objection is partly allowed and a sum of Rs.89,480/- is awarded as additional compensation. After deducting the amount of mediclaim, the claimants are awarded an additional compensation of Rs.4,304/- (Rupees Four Thousand Three Hundred and Four only) with interest at the rate of 9% per annum from the date of filing of the claim petition (16.09.2011) till the date of realisation, with proportionate costs. The 3rd respondent insurer shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the claimants are liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the claimants shall be in accordance with law.