HON'BLE MR JUSTICE GHULAM MOHAMMED CIVIL MISCELLANEOUS APPEAL NO. 435 OF 2002 Between: R. Hari Prasad ..... Appellant AND 1. T. Mala Konda Reddy and one another .....Respondents JUDGMENT: This appeal is directed against the award made by the IV additional District Judge cum Chairman, Motor Accidents Claims Tribunal, Kurnool in MVOP No. 60 of 1996 dated 12.3.1999 filed under Section 166 of the Motor Vehicles Act, claiming compensation of Rs. 4,00,000/- as against which, the Tribunal awarded Rs. 2,25,000/- together with interest at 12% per annum. 2. Brief facts of the case as borne out from the record are as follows: On 12.10.1995 at about 09.00 AM when the claimant was going to Kurnool along with others in the vehicle bearing No. AP 21 TV 2772, it was dashed by a lorry bearing No. AEN 3247, which was driven by its driver at high speed in rash and negligent manner. As a result, the claimant received crush injury to his right leg and compound fracture on mandibles and grievous injuries on back and below the abdomen. The petitioner was shifted to Government General Hospital and he was treated as inpatient from 12.10.1995 to 23.10.1995 and on the advice of doctors he was shifted to NIMS and there he took treatment from 14.10.1995 to 12.12.1995 and during the said period his right leg was amputated up to thigh. Hence, he claimed compensation of Rs. 4,00,000/-. 3. The first respondent –mini lorry owner remained ex-parte and the 2nd respondent –Insurance Company filed a counter stating that the accident occurred due to rash and negligent driving of the mini lorry bearing No. AP-21-TV-2772 and the claimant has to prove that the said lorry was insured with the second respondent-Insurance company or not and in the absence of proof, the second respondent is not liable to pay compensation even under no fault liability. 4. On the basis of the above pleadings, the following issues were settled for trial. 1. Whether the pleaded accident occurred resulting in injuries and permanent disability to the claimant, and if so was it due to the fault of the driver of the vehicle of first respondent? 2. Whether the owner of the vehicle bearing No. AP-21-TV-2772 and its insurance company are necessary company are necessary parties to this OP? 3. Whether the vehicle of R1 was insured with second respondent and whether terms of that policy cover the risk of the claimant? 4. Whether the claimant is entitled to compensation and if so, at what quantum and what is the liability of respondents 1 and 2? 5. To what relief ? 5. To substantiate the case of the claimant, the claimant was examined as PW-1 and also examined R. Bala Prasad as PW-2 and Dr. M. Raja Rao as PW-3 and marked Exs. A1 to A12. On behalf of second respondent, no witnesses were examined but it marked the copy of the Insurance Policy of the lorry bearing No. AEN-3247 by consent. 6. On consideration of the oral and documentary evidence, the Tribunal with regard to liability, taking into consideration of evidence of PWs 1 and 2 and contents of Exs A1 to A4 came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the lorry bearing No. AEN 3247 and in so far as the second respondent-Insurance Company is concerned, the claimant is third party to it therefore, it is liable to pay compensation being the insurer of the lorry bearing No. AEN- 3247. With regard to compensation, taking into consideration of disability certificate issued by the medical board that PW-1 is suffering with the disability of 80% and claimant being student who is aged 19 years and he has to live with the disability throughout his life and he required the aid of a person even for attending to his answers and thereby he has to suffer mental and physical agony throughout his life, awarded compensation of Rs. 1,50,000/- towards disability and Rs. 40,000/- towards medical expenses and Rs. 35,000/- towards pain and suffering with 12% interest per annum payable by respondents 1 and 2. Aggrieved by the same, the claimant filed the present Civil Miscellaneous Appeal claiming more compensation. 7. Learned counsel appearing for the claimant contended that the Court below erred in granting less compensation and did not appreciate the fact that he has suffered total disability as his right leg was amputated up to thigh and suffering injury to the urinary bladder and he became burden to himself and he has suffered pain and misery throughout his life. He also submits that the Court below erred in granting less compensation under the head of medical expenses. 8. The point that arises for consideration is whether the compensation awarded by the Tribunal granting a sum of Rs. 2,25,000/- is just and proper? 9. As seen from the record, it is no doubt true that the accident took place on 12.10.1995 at 8.00 AM and the appellant received grievous injuries on back and below, crush injury to his right leg and compound fracture of mandibles and he was treated as inpatient in Government General Hospital and after that he was shifted to NIMS and his right leg was amputated up to thigh. The doctor also given disability certificate Ex. A-12 mentioning percentage of disability and the appellant because of amputation of right leg he is suffering with the disability of 80%. For 80% disability the Court below granted only Rs. 1,50,000/- and I feel awarding of Rs. 1,92,000/- for disability would meet the ends of justice. The appellant being a student became disabled and he cannot move without the aid of a person and he has to live with the said disability throughout his life and he has to suffer mentally and physically. The Supreme Court in NAGAPPA VS. GURUDAYAL SINGH AND OTHERS[1] at paragraphs 23, 28 and 30 held as under: “23. However, it is to be clearly understood that M. V. Act does not provide for passing of further award after final award is passed. Therefore, in a case where injury to a victim requires periodical medical expenses, fresh award cannot be passed or previous award cannot be reviewed when the medical expenses are incurred after finalization of the compensation proceedings. Hence, only alternative is that at the time of passing of final award, Tribunal/Court should consider such eventuality and fix compensation accordingly. No one can suggest that it is improper to take into account expenditure genuinely and reasonably required to be incurred for future medical expenses. Future medical expenses required to be incurred can be determined only on the basis of fair guess-work after taking into account increase in the cost of medical treatment. 28. In this view of the matter, in our view, it would be difficult to hold that for future medical expenses which are required to be incurred by a victim, fresh award could be passed. However, for such medical treatment, Court has to arrive at a reasonable estimate on the basis of the evidence brought on record. In the present case, it has been pointed out that for replacing the artificial leg every two to three years, appellant would be required to have some sort of operation and also change the artificial leg. At that time, the estimated expenses for this were Rs. 18000/- and the High Court has awarded the said amount. For change of artificial leg every two or three years no compensation is awarded. Considering this aspect, if Rs. One lac is awarded as an additional compensation, appellant would be in a position to meet the said expenses from the interest of the said amount. Equally it is true that the said amount is required to be properly invested on long-term basis so that recurring medical expenses could be met. This principle is established in General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and others ((1994) 2 SCC 176) and this Court held (in para 23) thus :- AIR 1994 SC 1631 : 1994 AIR SCW 1356 Para 17 AIR 1992 SC 248 @page-SC683 "23. In a case of compensation for death it is appropriate that the Tribunals do keep in mind the principles enunciated by this Court in Union Carbide Corpn. v. Union of India ((1991) 4 SCC 584) in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptibility to exploitation. In that case approving the judgment of the Gujarat High Court in Muljibhai Ajarambhai Harijan v. United India Insurance Co. Ltd., ((1982) 1 Guj LR 756), this Court offered the following guidelines :- (i) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor be invested in long term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may, however, be allowed to be withdrawn; (ii) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in (i) above, but if lump sum payment is required for effecting purchases of any movable or immovable property such as, agricultural implements, rickshaw, etc., to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money; (iii) In the case of semi-literate persons the Tribunal should ordinarily resort to the procedure set out at (i) above unless it is satisfied, for reasons to be stated in writing, that the whole or part of the amount is required for expanding any existing business or for purchasing some property as mentioned in (ii) above for earning his livelihood, in which case the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid; (iv) In the case of literate persons also the Tribunal may resort to the procedure indicated in (i) above, subject to the relaxation set out in (ii) and (iii) above, if having regard to the age, fiscal background and strata of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him thinks it necessary to do order; (v) In the case of widows the Claims Tribunal should invariably follow the procedure set out in (i) above; (vi) In personal injury cases if further treatment is necessary the Claims Tribunal on being satisfied about the same, which shall be recorded in writing, permit withdrawal of such amount as is necessary for incurring the expenses for such treatment; (vii) In all cases in which investment in long term fixed deposits is made it should be on condition that the Bank will not permit any loan or advance on the fixed deposit and interest on the amount invested is paid monthly directly to the claimant or his guardian, as the case may be; (viii) In all cases Tribunal should grant to the claimants liberty to apply for withdrawal in case of an emergency. To meet with such a contingency, if the amount awarded is substantial, the Claims Tribunal may invest it in more than one Fixed Deposit so that if need be one such F.D.R. can be liquidated." 30. In the result, we allow this appeal partly and award additional compensation of Rs. One lac to the appellant. The said amount shall be deposited by the Insurance Company with the trial Court and the trial Court is directed to invest the said amount on long term fixed deposit in a nearest nationalized bank, in the area where the appellant is residing, with the condition that the bank will not permit any loan or advance and the interest on the said amount will be paid annually, directly to the claimant till he survives. However, on an application by the appellant this condition could be modified by the Tribunal in exceptional circumstances, if made out by the appellant. Finally, after the death of appellant, the amount be disbursed to his legal heirs on their application.” 10. Following the above judgment, for arrangement of an artificial leg, an amount of Rs. 1,00,000/- would meet the ends of justice. The amount of Rs. 40,000/- granted by the Tribunal towards medical expenses and Rs. 35,000/- towards pain and suffering, in my view, has rightly awarded the same taking into consideration of Ex. A-6 medical certificate and the discharge certificate issued by the NIMS, Hyderabad. 11. Accordingly, the compensation awarded by the Tribunal is enhanced from Rs. 2,25,000/- (1,50,000+40,000+35,000) to Rs. 3,67,000/- (1,92,000/- +1,00,000+40,000+35,000). 12. The learned counsel appearing for the respondent submitted that the rate of interest granted by the Tribunal at 12% per annum is on high side. Hence, the rate of interest granted by the Tribunal at 12% per annum is reduced to 7.5% per annum on the enhanced amount of compensation. 13. Accordingly, the appeal is allowed in part. There shall be no order as to costs. _____________________ GHULAM MOHAMMED, J Date: 24.06.2010 KA [1] AIR 2003 SC 674