^^ .0' M.A._No..493_0_F2003 APPELLANT OPPOSSTE PARTY A.R. Bharadwaj S/o Netrai Bharadvvaj. about 48 years, R/o Dharampura, Jsgdaipur; C.S.E.B. Qtr. No.10, Ramji Coiony, Aghnupur, ChitraKoot Road, Jagdaipur, Bastar (C.G.) Versus 1. Sushjt Kumar Mahobia, Qccupatlon . - Bus Owner, Sal Travels, (Bus No. MP-26/C-5593), Bus Stand, Ratanpur, R/o Ratanpur, Dlstt. Biiaspur (C.G.) 2. Israr Ali, Aged about 32 years, S/b Riyaz AIi, Caste-Musilm, R/o Idgah Chowk, Near Poiice Line, Bjiaspur (Drlver of Bus No. MP-26/C-5593) 3. The New india insurance Co. Ltd., Branch Office.. Rajendra Nagar Chowk, Distt. Bstaspur (C.G.) ACT. 1888. (Sinale Hon'toae Mr. N,K. AaarVi/al. JJ Present : Smt. Renu Kochar, counsei for the appeiiant. - None for respondent No.1 though served. None for respondent No.2. Shri Neeraj Pradhari, counsel for rsspondent No.3. (Passed on 29th day oTAprii, 2010) The instant appsai has been preferred by the appellant for seeKing enhancement of compensation against the award dated 20-02-2003 by Fifth Addj. Motor Accident Cjaims Tribunal/.BJiaspur (for shon 'the Tribuna!') In claim case No. 38/2002 whereby and whereunder an amount of Rs. 5,000/- aiong with interest @ 9% percent per annum has been awarded as compensation jn favour of the appeliant. ^^^ 1 " 11 \.^^/ ^,;'^^ 2. The brief facts of the case accordlng to appeliant are that, on 02-05-2001, the appeiEant while travellng by bus bearing registratlon No. M.P. 26C/5593 afong with his wife from Bilaspur to Korba, met with an accident due to rash and negligent driving by the driver of the offending vehicle (bus) and pursuant to sald accident sustained grievous injunes. 3. The appeliant preferred an appficatlon before the Tribunas under Section 166 of the Motor Vehicles Act, cialmsng compensation to the tune of Rs. 2,80,000/- for the InJurSes sustained by him on account of the said accident. 4. The Tribunai, on a close scrutiny of the evidence led, material piaced and submissions made, awarded totai amount of Rs. 5,000/- as compensation in favour ofthe appeilant along with interest @ 9% per annum from the date of appiication tili its payment. 5. Learned counsel for the appellant would submit that aithough the Doctor has not been examlned in this matter, but iooking to the fact that the appeiiant sustained grievous injury, and amount awarded by the Tribunai is shockingiy on lower side, this appeaf may be ailowed and the compensatlon be suitably enhanced. 6. I have heard the iearned counsel for the parties and perused the record. 7. ~he Supreme Court in case of A.P. SRTC y. P. Thirapsl reported jn 12 SCC-189, observed in pars 6 as under: "6. After hearing iearned counsel for the respondent- cSaimant who made an attempt to support the order of the High Court. We find that there was no justification for the Hlgh Court to reiy on the djsabj!!tyr ce-rtlflcate issued by Dr. Sudhakar Reddy and enhance the compensatjon by treating the injury as permanent djsabltity to be 45 per cent. The HJgh Court committed gross .'error in overiooking the fact that Dr. Sudhakar Reddy's medicai certiflcate was rejectecS by the Tribuna! for non- examination of that doctor. The Tribunal has deterrnined the physica! dlsabiiity at 15 per cent on the basis of the s 111irf*:,; j 3 deposition of Dr. K.M. Mitra and awarded a just and fair compensation. The Hlgh Court erred in disturbing the same and enhancing thecompensatjon. Consequentiy, we al!ow this appea!, set aside the impugned order and restore the avi/ard of the Ciaims Tribunal. The respondent-ciaimant is aiiowed to withdraw the amount of compensation awarded by the Tribuna!, if it has not aiready been withdrawn." 8. The Supreme Court in a recent dictum jn case of Rajesh Kumar allas Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 308, reiterated the same view with the foilowing observations in para 11 : si11. The certlficate in question in this case was obtained after fr^o years, it is not known as to whether the CIvii Surgeon of the hospita! treated the appeliant. On what basis, such a certificate was issued two years after the accident took piace is not known, The author of tne said certificate had not been examined. Unfess the author of the certificate examined hlmseif, it was not admissisbie In evidence. Whether the disabllity at 60% was ca!cuiated on the basis of the provisions of the Workmen's Co.mpensation Act or otherwise is not known. !t is also not known as to whether he was competent to issue such a certiricate. It even does not appear that the contentlons raised before us had elther beon ralsed before the Tribuna! or the High Court. The Tribunai as aiso the High Court, therefore, proceeded on the materiais brought on record by the parties. in absence of'any contention having been raissd in regard to the appiicabjjity of the Workmen's Compensatlon Act which, in our oplnion, ex facie has no appiication, the same, in our opinion, cannot be permitted to be raised for the first time." 9. A Division Bench of this High Court in case of Pradeep Kumar Sahu vs. Sahipa Saha & sf?off?ervlde order dated 31 March, 2009, piacing its reiiance upon the dicta of Supreme Court in the cases referred above held in para 8 as under: "8. in view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thsrupaf Reddy (supra) and Rajesh Kumar alsas Raju v. Yudhvir Singh and another (supra), the certlficate produced before the TrEbunaE in the absence of examination of the Doctor Issuing the certificate Is neither admissible in evidence nor can be taken into consideratson as sybstantive evldence for assessment ofthe compensation in the case." 10. Admittedly, the daimant in his own wtsdom did not examine Doctor to prove the injury sustained in the accident and ^"^- '^ v.v/-';%^::- t to prove the resultant loss. in vjew of the dicta of the above referred cases, the injury reports, certificates produced, in the absence of examination of the Doctor issuing the injury reports, certifjcates are nelther admissible in evidence nor can be taken into consideratjon as substantive evldence for enhancement of compensatf'on In the case. 11. !n a motor accident ctaim case, as per Section 168 of the Motor Vehicfes Act, 1988, what is important is that the compensation to be awarded by the Courts/Tribunaf shoufd be just and proper compensation in the facts and clrcumstance of each case. Et is neither a bounty nor charity. 12. For the reasons mentioned hereinabove, I do not find any scope for enhancement of the compensation awarded by the Tribunal. 13. The appeal filed by the appellant for enhancement of the compensation is therefore iiabje to be and is hereby dismissed. Sd/- N. K. Agarwal Judge Kvr