AWARD OF COMPENSATION FOR PROSTHETIC LIMB IN MOTOR ACCIDENTS CLAIMS CASES.

 

 

AWARD OF COMPENSATION FOR PROSTHETIC LIMB IN MOTOR ACCIDENTS CLAIMS CASES.

Whether lifetime maintenance/replacement warranty for prosthetic limb to be monitored by the insurer. Held: directions could be made only as part of compensation and not in nature of continuing directions. Determination of compensation must take place at one go and cannot be by continuing mandamus. This aspect has been discussed in 2021(2) TNMAC 432 (SC).  HDFC Ergo General insurance co.ltd.,  VS  Mukesh kumar & others.

The brief facts of the case is as follows:

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 vehicles act,1988 in the manner of a direction in perpetuity for continued maintenance of a prosthetic limb for the injured claimant.

The injured herein was 19 years of age when he met with an accident on 25/8/17 which resulted in permanent disability of his right lower limb, which was treated as 100% disability. An amputation had to take place below the knee of that limb. In the assessment made by the motor accidents claims tribunal, an amount of Rs.2 lakhs was quantified towards loss of amenities, life and disfigurement which would include the expenses towards his prosthetic limb. The high court gave following orders.

“The claimant shall be supplied a prosthetic limb of good quality which is suitable and comfortable to him. It shall carry a life time 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 email address and telephone number, as well as through his counsel’s email address and telephone number.

In case of any difficulty regarding the prosthetic limb, the claimant may intimate the insurer through email address and telephone number of three officers of the insurer, as supplied to him..

It will be open to the claimant to communicate the quotation or estimate for the suitable prosthetic limb to the insurance company.

The 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 the email address and telephone number specified.

While determining compensation under the said act there is no provision providing for passing of a further award, once the final order is passed. The future eventualities are to be taken into consideration at that time.

Future medical expenses required to be incurred can be determined only on the basis of fair guesswork after taking into account increase in the cost of medical treatment.

The process of determination of such compensation cannot be by a continuing mandamus, in a colloquial sense, and the determination must take place at one go.

The afore said principle is not even disagreed to or contested by the respondents but what is submitted is that there must be a provision made fixing a lump sum amount for maintenance / replacement of the prosthetic limb, if necessary. In such kind of case of providing facility of prosthetic limb, appropriate amount may be quantified towards such maintenance.

In order to facilitate determination of the lump sum amount, the counsel for the claimant is required to file an affidavit setting forth the cost of the prosthetic limb purchased by him along with the supporting documents. He should also file supporting documents of the company from which he purchased the prosthetic limb, to show what kind of maintenance / replacement would be required.