HDFC Ergo General Insurance Co. Ltd. vs Mukesh Kumar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 987

SUPREME COURT OF INDIA
Sanjay Kishan Kaul, Hrishikesh Roy, JJ.
HDFC Ergo General Insurance Co. Ltd. – Appellant
Versus
Mukesh Kumar & Ors. – Respondents
Civil Appeal No.4576 of 2021 (Arising out of SLP (C) No.16077 of 2020), Civil Appeal No.4577 of 2021 (Arising out of SLP (C) No.2646 of 2021)
Decided On : 03-08-2021

Advocates:
Advocate Appeared:
For the Petitioner: Ms. Archana Pathak Dave, AOR, Ms. Vanya Gupta, Adv., Mr. Kumar Prashant, Adv., Mr. V. Giri, Sr. Adv., Mr. Karan Lahiri, Adv., Mr. Pallav Mongia, AOR, Mr. Shailender Reddy, Adv., Ms. Ankita Gupta, Adv.,
For the Respondent: Mr. Jayesh K. Unnikrishnan, AOR, Ms. Sasmita Tripathy, Adv., Mr. Dilawar Singh, Adv., Ms. Gitanjali Tripathy, Adv., Ms. Gautami Budhapriya, Adv., Mr. Vivekanand Singh, Adv., Mr. Manish Maini, Adv., Ms. Manjeet Chawla, AOR, Ms. Ritu Rastogi, Adv., Mr. B. S. Chowdhary, Adv., Ms. Adira A. Nair, Adv., Mr. Sanjay Kumar Visen, AOR, Mr. Durga Dut, Adv., Ms. Samta Pushkarna Mishra, Adv., Mr. Amar Singh, Adv., Mr. Neeraj Goswami, Adv., Mr. R. D. Singh, Adv., M/S Vibhu Shanker Mishra And Co., AOR

Headnote:
Motor Vehicle Act, 1988 – Compensation – Arises for determination – Appeal filed by Insurance Company is whether directions can be passed by Court while determining compensation under Motor Vehicle Act, 1988 in manner of a direction in perpetuity for continued maintenance of a prosthetic limb for injured claimant – Respondent No.1 viz, was when he met with an accident which resulted in permanent disability of his right lower limb, which was treated as a 100% disability – An amputation had to take place below knee of that limb – Held, Court find that in terms of the impugned order, learned judge has since kept matter pending by issuing notice to GNCTD to examine whether there could be a Government policy in regard to assistance to be provided to permanently disabled adolescents whose parents are not economically well off – Court are of view that in pursuance to this conclusion, it is High Court which ought to examine as to what would be appropriate lump sum amount to be determined based on multiplier basis as set out in Kajal’s case (supra) – Court thus, set aside directions contained in impugned order in paragraph Nos.8 to 10 – Court also find that while seeking to examine larger issues, learned judge has ventured into aspect of Government policy to be framed in that behalf – This really amounts to beyond jurisdiction over determination of amount, in Motor Accident Claim proceeding, but on a larger canvas taking colour of a Public Interest Litigation – Court thus, consider it appropriate that this aspect ought to be examined by Bench dealing with Public Interest Litigation, as a larger canvas would have to be determined rather than something restricted to case of respondent before us –Appeal allowed.

ORDER :

Sanjay Kishan Kaul, J.

CIVIL APPEAL No.4576/2021

1. Leave granted.

2. The sole question which arises for determination in this appeal filed by the Insurance Company is whether directions can be passed by the Court while determining compensation under the Motor Vehicle Act, 1988 (hereinafter referred to as “the said Act”) in the manner of a direction in perpetuity for continued maintenance of a prosthetic limb for the injured claimant.

3. The respondent No.1 viz. Mukesh Kumar, was 19 years of age when he met with an accident on 25.8.2017 which resulted in permanent disability of his right lower limb, which was treated as a 100% disability. An amputation had to take place below the knee of that limb. In the assessment made by the Motor Accident Claims Tribunal (MACT), an amount of Rs.2 Lakhs was quantified towards loss of amenities, life and disfigurement which would include the expenses towards his prosthetic limb. On examination in appeal, the learned judge of the High Court by the impugned order dated 04.11.2020 has passed directions in the following terms:

“7. With consent, the impugned award dated 22.01.2020 passed by the learned MACT in Petition No.129/2018, is modified to the extent that the claimant/R-1 shall be supplied a prosthetic limb of good quality which is suitable and comfortable to him. It shall carry a lifetime warranty. Should it be required to be replaced/repaired at any stage, the insurance company will do so. The insurer will enquire from the victim, at least twice a year, as to the working condition of the prosthetic limb, through his e-mail address and telephone number, as well as through his counsel’s e-mail address and telephone number. The details are as under:-

Claimant’s/R1’s Mobile No.	Claimant’s/R1’s email address	Counsel’s Mobile No.	Counsel’s E-mail address
……………..	…………….. .	…………… .	…………….. .

9. It will be open to the claimant to communicate the quotation or estimate for a suitable prosthetic limb to the insurance company at the e-mail addresses and telephone numbers provided by the learned counsel for the insurer. The impugned order is modified to this extent.”

(details redacted)

4. Learned counsel for the appellant submitted that the consent which was given was for modification of the impugned award and not for the prosthetic limb to carry a lifetime warranty, as there is no such thing as a lifetime warranty for a prosthetic limb. Not only that, the impugned directions require that if any, repair or replacement has to be done, the same should be done by the Insurance Company and the insurer was required to inquire from the victim at least twice a year as to the working condition of the prosthetic limb with an email address and telephone number specified. Thus, what has been directed by the High Court is a continuing maintenance of the prosthetic limb to be monitored by the Insurance Company. We may note that the aforesaid is the only issue which is called upon by us to be examined.

5. We had stayed the operation of the aforesaid paragraphs by the interim directions issued vide order dated 15.2.2021.

6. We are of the view, that the aspect discussed in the aforesaid paragraphs could be made only a part of compensation, and not in the nature of continuing directions. In this behalf, we have noticed a view taken by this Court vide order dated 06.8.2020 in SLP(C) No.8631/2020 where the same learned judge has taken a similar view and that aspect of the order was deleted at the motion stage without notice by the Bench and thus we considered it appropriate to issue notice to other side.

7. Learned counsel for t

Click Here to Read the rest of this document

2021 Supreme(SC) 987

Cases Referred (10)