r- IN THE HIGH COURT OF JUDICATURE OF CHHATTISGARH AT BILASPUR M.A.(C.) No...l..':L././../2008 AppeUant ^_<?^.°U" ^'^^ fel^ (A- Shiv Prasad S/o Sarju Ram Satnami, aged about 40 years R/o ViUage Gitkera Police Station Palari, District Raipur (C.G.) Versus Respondent Homeshwar Prasad Sidar S/o Mohan Lal Sidar, Aged about 28 years, R/o vmage Gitkera Police Station Palari, District Raipur (C.G.) MEMO OF MISCELLANEOUSAPPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 FOR ENHANCEMENT OF COMPENSATION AWARD kf/- J -=p XI-HC—78 oT^i^Tf^te ^^H ^TT^ 'pFRT^ WR^T W*<lisft 'y^T '?STPTjH?T, i^rftWTg', [^<r!j^^< raw-w^ •t^'^3-----^2o€ 3T?^T'?5PK' ( y^iw^fe? w^i S.B. Hon'ble Shri Justice N.k. Aaarwal ^nfeT^ 'W^jf ^f fe^ Tf^T^R ^aff^T^T^r 29.10.2009 Shri Vivek Rathore, Adyjicate for appellant. Shri Hanuman Prasad ^grawal, Advocate for respondent. Heard on IA No. 1, appl|cation for condonation of delay in filing the appeal. On due consideration, 1 am satisfied that the counsel for appellant has succeeded in e)fr»lajningthe delay caused in filing this appeal. Accordingly IA Njo. 1 js allowed and delay caused in filing the appeal is hereby c^ndoned. Heard on admission. The instant appeal has| been preferred by the appellant, seeking enhancement of compensation against the award dated 30.06.2008, passed by thej Ilnd Additional Motor Accident Claims Tribunal Baloda B^izar District Raipur (for short 'Tribunat') jn claim case No. 42/06. The brief facts of the case according to appellant are that, on 08.06.2006, while the appellant was coming Vlllage Gitkera from Village Detan by his bjcycle, one Motorcycte, bearing registration No. CG-04/ZH-3426 dashed (he appellant due to which the appellant sustained injuries. The appellantpreferred an applteation before the Tribunat under Section 166 of the Motor Vehicles Act, claiming £^;^^^^-'^?'s'v-^y^'^-'--^:.5t-i^^' w XI>HC—78 •^^^ f^N? nm 3^1 ^WCF -g-,^ 'AIIlj'f^^, ^tll^^S-, f^TPOy TTp^mpff^ "^:200-g' W?CT ^W ( ¥^1W^t^ 3Tr^T ^rof^^T ^TO^H ^f f^S tN^ft ^^^^rr^r compensation to the tune o^ Rs. 2,16,9407- for the injuries sustained by him on account ojfthe said acddent. The Tribunal, on a clo^e scrutiny of the evidence ted by the parties, the material javajlable on the reeord, and submissions of the parties, awarded total amount of Rs. 36,000,/- as compensation in f^vour oftheappellant. Shri Rathore, learned icounset for the appellant would submit that although the Doct^r has not been examined in this matter, but looking to the fi|ict that the appellant sustained grievous injury, and amount a^/arded is shocking on lower side, thls appeal may be allowed an|d the compensation be enhanced. I have heard the lea(ned counsel appearing for the appellant and perused the rec(j)rd. The Supreme Court in c^ase of A.P. S/?TC v. P. Thlnipal Recfcfy, reported in (2005) 12iSCC-189,observed in para 6 as i' under: [ "6. After hearing learned counsel for the respondent- claimant who made an attempt to support tbe orderofthe High Court. We find that (here was no justificsrtion for the High Court torely on the disabitjfy certificate Issued by Dr. Sudhakar Reddy and enhance the compensatien by treating the injury as permanent disability to be 45 per cent. The High Court committed gross error in overlookiRg the factthert Dr. SudhakarReddy's medical certificatewas rejected by the Tribunal for non-examination of that doctor. The Tribunal ihas determined the physical disability at 15 per cent op the basis of the deposition of .^'^ia?i^.^^;s'?i%r^^^^'^^?A^"^^ l,'l % '^^^; NINCTf%^l^> 'TST <^il<{i<yt'4, ?$Tti-H*l<o, fcf^lWy .^....^4^—^-Q^— ^2GI©§> ^I^T 'q^S^ (^iy^^?) 3iT^^rS^-fi<t» ^T^^TiCTN? «.a3 ?^»,a^aji«.^<inat.rt-?: I'^iw^rfN^i^i ^pfe^f ^w<n? ^f fe^'^fa'^K ^? 3?RP? 3?I^T Dr. K.M. Mitra and award< The High Court erred enhancing the compens this appeal, setaside the i| award ofthe CIaims Tribur allowed to withdraw the ar by the Tnfiunal, if it has n< a just and fair compensation. in disturbing the same and Consequently, we allow ipugned order and restore the lal. The respondent-claimant is >unt of compensation awarded already been wSthdrawn." The Supreme Court in a{ recent dtetum in case of Rajesh Kumar alias Raju v. Yudhvirf Singh and another, reported in (2008) 7 SCC 305. reiterated observations in para 11 : after two years. It is not basis, such a certjficate vj acddenttookplace is not certificate had not been e^ the certificate examined the same view with the following 11. Thecertificate in que^tjon in this casewas obtained known as to whether the CivU Surgeon of the hospital trjeated the appellant. On what fas issued two years after the known. The author of the said (aminal. Untess ttie auttior of mself, it was not admissible in evidence. Whether the c^sability at 60% was calcutated on the basis of the rirovisions of the Workmen's Compensation Act or oth^rwise is not known. It is also not known as to whether a certificate. It even does raised before us had Tribunal or the HighCour Court, therefore, proceedt record by the parties. having been raised in n Workmen's Compensatiorl faeie has no application. ttjie same, in our opinion, cann@t be permitted to be raised f^r the first time." wascompetent to issue such lot appear that the contenttons ler been raised before the The Tribunal as also the High on the materials brought on absence of any contention |ard to the applicability of th@ Act which, in our opinion, ex ^n^Ri ^^ ^Tfr^T<NRt^TRF—rS/95—11/2G08—1,00,000. f^SSS^^At^^,,^!^^^ ^^^^. S]?^^-^-^. t ^J i f€- •^. ^•- W. tj , " Xf-HC—78 '3~55r ^i^i<n<4, ^•al'M^Ko, [®i^ii-y*j,< 14^^'.. 11*1<fll a»*1(c|» -^200^ 3TI^T xl^p ( ^t^^T) 3?n^?T'SFT'f^rhF WT 3TT^T »>^ic?> ^N"1 I INn^1 Kamde Hidih A Division Bench of this KumarSahuvs. Sarupa Sahu & March, 2009, placing its reliancej Court in the cases referred above tt Court in case of Pradeep wother vide order dated 31 8t upon the dicta of Supreme ^ld in para 8 as under: quo^ed "8. In view of the above in the cases of A.P. SRTC v. and Rafesh Kumar attas Raj[u anottier (supra), the certific^te Tribunal in the absence of issuing the certificate is neither|admi8sible can be taken into conskleratiot for assessment ofthe compens^tion dicta of the Apex Court 4*. Thimpal Reddy (supra) v. Yudhvlr Slngh and produced before the dxamination of the Doctor in evidence nor as substentive evidence in the case." cafee ndr In a motor accident claim IMotor Vehicles Act, 1988, what |compensation to be awarded by tl| Ijust and propercompensation mV\ |each case. It is neither a bounty For the reasons mentioned jscope for enhancement of the ITribunal. The appeal filed by the app^l jcompensation is therefore liable to| |No order as to costs. ^FT^feFflFT 'HTR^Tf ^ 1^^' iFfl-^K '^affiTH^Ti^T i, as per Section 168 of the js important is that the ke Courts/Tribunal should be |»e facts and circumstance of charity. (T|ereinabove, I do not find any co^npensation awarded by the jllant for enhancement af the |be and is hereby dfemissed. Sd/- N. K. Agarwal Judge i£^&i.