Delhi HC: Motor accident claim tribunal should not deduct money received by claimant from insurance policy taken by him or his employer

As held by the House of Lords in Parry v. Cleaver MANU/UKHL/0008/1969 : 1970 AC 1 the insurance amount is the fruit of premium paid in the past, pension is the fruit of services already rendered and the wrongdoer should not be given benefit of the same by deducting it from the damages assessed.

{Para 15}

16. Deduction can be ordered only where the tortfeasor satisfies the court that the amount has accrued to the claimants only on account of death of the deceased in a motor vehicle accident.

50. In National Insurance Co. Ltd. v. Mannat Johal, MANU/SC/0589/2019 : 2019:INSC:561 : (2019) 15 SCC 260, the Supreme Court was considering whether the ex-gratia payment received from the employer of the deceased, being one year's gross salary, which was not shown to be under any Rules or Services and overall continuous assistance, can be set off against the compensation payable under the Act. The Court held that the same cannot be deducted.

51. From the above, it is apparent that compensation paid to the claimant is for the wrongful death of her son in the accident. The tortfeasor, who is primarily liable to pay such compensation, cannot claim a benefit in reduction of compensation payable by such tortfeasor, only because the deceased had, himself or through his employer, made an arrangement for providing a security to his legal heirs in case of any unforeseen happening, like an accident. Merely because the deceased himself did not pay the premium, in my opinion, is also not a relevant circumstance. Though such a premium is paid by the employer of the deceased, it is against the service that was being discharged by the deceased in his employment. How the employer frames the pay package to its employees is a matter between the employer and the employee, however, one thing is certain that even if the premium is paid by the employer, it is paid because of the relationship between the employer and the employee and for reason of such employment, it is not for the benefit of the tortfeasor.

 IN THE HIGH COURT OF DELHI

MAC. APP. 160/2019 and CM Appl. 4451/2019

Decided On: 09.01.2024

Iffco Tokio General Insurance Co. Ltd. Vs. Kanchan and Ors.

Hon'ble Judges/Coram:

Navin Chawla, J.

Citation: MANU/DE/0154/2024.

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Under which circumstances Circulars issued by IRDAI have retrospective effect?

(ix) It has been argued that the instructions in the

circular dated 12th October 2022 come into

force prospectively. This argument must also be

rejected. The IRDAI has been prompted to

issue the directions in the circular for the sole

reason that it was observed by the regulatory

authority that various insurers were repudiating

the claims on the pretext of the so called

‘exclusions’ in the policy document and hence

the regulatory authority was compelled to issue

the said directions. Thus, it stands to reason

that the directions have been issued to rectify

the arbitrary refusal of claims. Hence, the same

obviously applies to past refusals on the grounds

as mentioned in the circular.

REPORTABLE

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO. 2839 OF 2021

Rita Kirit Joshi Vs NEW INDIA ASSURANCE COMPANY,

CORAM : G.S.Patel & Neela Gokhale, JJ.

PRONOUNCED ON : 1st March 2023

JUDGMENT ( Per Neela Gokhale J) :-

Citation: 2023 Lawweb (Bom HC ) 12.

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Bombay HC: The Claim tribunal should not deduct from deceased's salary towards insurance, pensionary benefits, gratuity while awarding compensation for a motor accident

 In my view, the assessment of compensation made by

the Tribunal is against the settled position in law. It is well settled

position in law that except the statutory deduction to be made

towards income tax, professional tax, no other deduction is

permissible under law. The deduction from salary of the deceased towards insurance, pensionary benefts, gratuity or grant of employment to kin of deceased is not permissible. In this context, the learned counsel for the appellant has placed reliance upon the decision in the case of Sebastiani Lakra & others v. National Insurance Company Ltd. & another reported at 2018 ALL SCR 2175 wherein the Apex Court has observed in paragraph nos.12 to16 as under:-

“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

benefts or gratuity or grant of employment to akin 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 dependents or

the legal heirs of the deceased on account of his death in

a motor vehicle accident. The claimants/dependents 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 dependents as a result of some

contract or act which the deceased performed in his life

time 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 dependents only after his death. {Para 13}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

FIRST APPEAL NO.754 OF 2012

Anita  Arun Memane, Vs  The Maharashtra State Road Transport Corporation,

CORAM: V.L. ACHLIYA, J.

Dated : 24.07.2020

Citation: 2021(2) MHLJ 396

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Whether any person can be discriminated in health Insurance based on his genetic disorders ?

(i) Right to avail health insurance is an integral part of the Right to Healthcare and the Right to Health, as recognised in Art. 21 of the Constitution;

(ii) Discrimination in health insurance against individuals based on their genetic disposition or genetic heritage, in the absence of appropriate genetic testing and laying down of intelligible differentia, is Unconstitutional;

(iii) The broad exclusion of 'genetic disorders' is thus not merely a contractual issue between the insurance company and the insured but spills into the broader canvas of Right to Health. There appears to be an urgent need to frame a proper framework to prevent against genetic discrimination as also to protect collection, preservation and confidentiality of genetic data. Insurance companies are free to structure their contracts based on reasonable and intelligible factors which should not be arbitrary and in any case cannot be 'exclusionary'. Such contracts have to be based on empirical testing and data and cannot be simply on the basis of subjective or vague factors. It is for lawmakers to take the necessary steps in this regard.

(iv) The Exclusionary clause of 'genetic disorders', in the insurance policy, is too broad, ambiguous and discriminatory - hence violative of Art. 14 of the Constitution of India;

(v) Insurance Regulatory Development Authority of India (IRDA) is directed to re-look at the Exclusionary clauses in insurance contracts and ensure that insurance companies do not reject claims on the basis of exclusions relating to genetic disorders

F.2. The Trial Court has rightly held that a person, suffering from a genetic disorder, needs medical insurance as much as others. The suit is decreed for a sum of Rs. 5 lakhs along with interest @12% from the date of filing of the claim with the Appellant Insurance Company till the date of payment;

IN THE HIGH COURT OF DELHI

RFA 610/2016 and CM No. 45832/2017

Decided On: 26.02.2018

 United India Insurance Company Limited  Vs.  Jai Parkash Tayal

Hon'ble Judges/Coram:

Prathiba M. Singh, J.

Citation: 2018 SCCONLINE DEL 7415

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