.^ sii^iwfenr '?W 3flT^ ssi^i^ J^ ~S^ ^TRRT^, ^ftWT®,['>]<-) K-iy ^qf%---^^::<—-l-l"?:>'-----^200<2 3TI^?F^°h ('^tly'i'') ?SIIWHR??I an^i *i<t!ci4l-f iiroiS"ii ts^ •rf^n^n ^aiRmsn^! S.B. Hon'ble Shri Justice N.K. Aaarwal 03.11,2009 Shri Samir Singh, Advocat None for respondentNo. 1 Shri Raj Awasthy, Advocat^ for respondent No. 3. Heard on admission. The instant appeal has seeking enhancement of comp| 08.07.2008, passed by the VW\ Tribunat Bilaspur (for short 'TribufiaI') in claim case No. 0/3106. The brief facts of the cas^ 25.08.2007, one Hero Honda registration number dashed registration No. CG 10 BC-2291, s for appellant. &2. been preferred by the appeltant, ensation against the award dated Additional Motor Accident Claims according to appellant are that, on CBZ Xtreem Motoreycte, wWiout the appellanfs Scooty bearing due to which the appellant sustained injuries and her Scooty was dam^ged. The appellant preferred ^in applieation before the Tribunal under Section 166 ofthe Motor Vehicles Act, claiming compensation to the tune of Rs. 50,000/- for th^' injuries sustained by her on account of the said accident and also for compensation for damage of her Scooty caused in the said accident. The Tribunal, on a close |scrutiny of the ev'idence led by the parties, the material available on the record, and submisslons of the parties, awarded a sum of Rs. 50DO/- in favour of appellant. Shrt Singh, learned counsfel for the appellant would submit that although the Doctor has not beeri examined in this matter, but looking ^ ^T \p sv^iw R-ti'h WIf 3(T^5T ^hW^ 'S's; •^TCT?PT, ^rfrOTS, islMi-Hy ^ ^^.....iv^<....4^.............^200 ^ •sin^T'^^' ('yf^ti) TOflWtfeaiT^w -T. ^rafeTOR •RFRff •? ftTzt :(fe?R to frie fact that the appeltant si^stained grievous injury; damages of Scooty due to said aceident; a| lower side, this appeal may b^ id amount awarded is shocking on allowed and the compensation be enhanced. He further submits [that nothing has been awarded on loss on account of damage to Reddy, reported in (2005) 12 SC account of damage to Scooty. Shri Awsthy, learned coui^sel appearing for respondent No. 3 would submit that the appellant |as not filed any repair bills showing |Scooty, therefore, as the appetlant utterly failed to produce estim^te; bills regarding repair showing amount expenses, it is not possiljle for the court to award any amount on account of damage to Scooty.l 1 have heard the teamed cjounsel appeartng for the |Mrties and perused the record. The Supreme Court in cjase of A.P. SRTC v. P. Thlrupal p-189, observed in para 6 as under: "6. After hearing learned counset for the respondent- claimant who made an attempt to support the order of Uie High Court. We find that t^iere was no jusUficab'on for the High Court to rely on the d|sability certificate issued by Dr. Sudhakar Reddy and eijihance the eompensation by treating the injury as permanent disability to be 45 per cent. The High Court committed gross error m overiooking the factthat Dr. Sudhakar ^eddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent oiji the basis of the deposition of Dr. K.M. Mitra and award^d a just and fair compensaflon. The High Court erred in disturbing the same and enhancing the compensa(ion. Consequentty, we allow this appeal, set aside the impugned order and restore the >3!s)9, "'% i •w.W.vi^ y-^wi'a. i^wwy. ..h^L......\{^. sn^TF 'qflqi' ('<i«t(3«K^T) sff^?[ 'wi Ri-ii'* Wit3Il%niBW¥ award ofthe Claims Tribilnal. allcwed to vw'thdraw theajnount by the Tribunal, if it has n^t The Supreme Court in Kumar alias Raju v. Yudhvir S| 7 SCC 305, reiterated the sam< in para 11 : after two years. It is nol| basis, such a certificate ^iiiriiR'w^^ VetSs •^n?3 *'3iRn3ntw The respondent-claimant is of compensation awarded already been withdrawn." recent dictum in case of Rajesh ngh and another, reported in (2008) view with the followlng observations "11. The certificate in qu^stion in this case was obtained known as to whether the Civil Surgeon of the hospital (-eated the appellant. On what <iyas issued two years after the accident took place is notj certificate had not been ebcamined. Unless the author of the certiflcate examined h known. The author of the said imsetf, it was not admisslble in evidence. Whether the <pisability at 60% was calculated on the basis of the ^rovisions of the Workmen's Compensation Act or oth^rwise is not known. It is also not known as to whether Ite was competent to issue sueh a certificate. It even doesjnot appear that the contenUons raised before us had ejither been raised before the Tribunal or the High Couri The Tribunal as also the High Court, therefore, proceed^l on the materials brought on record by the parties. In absence of any contention having been raised in re^ard to the applicability of the Workmen's Compensation Act wWch, inour opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time.' ! A Division Bench of this Hlgh Court in case of Pradeep Kumar Sahu vs. Sarupa Sahu & aiwthervide order dated 31 March, 2009, placing its reliance upon the dieta of Supreme Court in the cases 1 referred above held in para 8 as linder: 3niSrq>rft'<i't> w sn^iwiiw I Sahu •5-53 ^Wvi^.'S^Wfi, h"\wy. ^,.....^C........H^...........^20og: sn^T'qg^ ('jqis'ci'i) TOTOT^tOTa'iAn 4 ^pferiR-Wffffi ^'fe'zt tiw?' ^srRmsn^t "8. In view of the abov^ quoted dicta of the Apex Court in the cases of A.P. SRT€v. P. Thlrupal Reddy (supra) and Rafesh Kumar alia^f another (supra), the cdrtificate produced before the Tribunal in the absence issujng tte;eertificate is ne| can be taken, into consid^ af examination of the Doctor ither admissible in evidence nor ration as substantive evidence compensation in the facts and neither a bounty nor charity. As no evidence has been account of damage to Scooty thei in not awarding any amount on th Rafu v. Yudhvir Singh and for asssssment ofthe combensation in the case." In a motoraccident claim cjase, as per Section 168 ofthe Motor Vehicles Act, 1988, what is impo|1ant is that the compensaUon to be awarded by the Courts/Tribu(ial should be Just and proper lcircumstance of each case. It is |led to substantiate alleged toss on fefore, the tribunal has also not erred iis head. For the reasons mention^d hereinabove, 1 do not find any scope for enhancement ofthe corapensation awarded bythe Tribunal. The appeal filed by Uie appellant for enhancement of the compensation is therefore liable t^ be and is heret^ dismlssed. No order as to costs. | g^ N.K.Agarwai Judge