HIGH COURT OF CHHATTISGgRH AT BILASPUR’ MISC. APPEAL N0. 1144 OF 2(m5 '-A§PEAL UNQER $ECTiQj§ 173 OF E§£QTGR VEHICLE§ i‘ ACT, 1383. {single Bench: Howbie Mr. Mi. Agarwat, J_.1 Prejsent : Shri SC. Verma, counsei aicng with ShriAciiiya Khare, counse! for the appef£ant None for respondent No. 1 & 2 though served. r None for respondent No.3. ORAL ORDER . (Passed on 01$ day of Aprii, 2010) The instant appeal has been preferred by the aepeliant for seeking enhancement of compensation against the award dated 13-07-2005 passed by Tenth Addl. Mortar Accident Claims Tribenai, Raipur (for short ‘the Tribunal‘) in c‘Taim case Nor 57i2b04 whereby and whereunder an amount of Rs. 41,740l- aTong with interest @ 9% percent per annum has been awarded as compensation in favour of‘fhe appellant 2. j The brief facts of the case according to appellant are that, on 06-09-2003, the appellant while sitting as piilion rider on the motorcycle bearing registration No. CG. O4/CC-6419, met with APPELLANT Umesh {gaimargi 3§ngh, S/o Late Gayasingh, Aged about 27 years, Occupaticn Labour SupyH’er; R/c Heerapur, Tahs£l & Distt. Raipur ‘Versus R£SPONDENT$ 1. Prakash MDN- Wankhede, S/c Wankhede, Rio APPLICANW; Rio Viiiage Gogaon, & District Raipur (C.G.) i a ‘ 1 2. Angad Singh, S/o Veerendranath Séngh, R/e ‘ Viiiage —— Near School, Gogaon: Tahsii & Distt'. Raipur (0G) ‘ The ‘ Unstgd india Insurance Co. Through ‘ - Divisionai Manager, Dévisiona! Office, Kachahari Chowk, £ai§ } n atorcycie and pursuant to said accident sustained grievous . The appeiiant preferred an appiication before the Tribune! 4 nder Section 166 pf the Motor Vehicles Act, claiming n accident due to rash and negHgent driving by the driver of the juries. 1 ompensation to the tune of Rs. Q,O0,00G/— for the injuriee ustained by her on account of the said accident. . The Tribunal, on a close scrutiny of the evidence led by thg‘ parties, the material available on the record, and submissions of the parties, awarded total amount of Rs. 4t ,740/— as compensation in favour of the appellant. . 5. Learned counsel for the appellant wouid submit that although the Doctor has not been examined in this matter, but looking to the fact that the appeiiant sustained grievous injury, and amount awarded by the Tribunal is ‘shocking‘iy on tower side, this appeal maybe allowed and the compensation be enhanced. 6. i have heard the learned counsei appearing for the appellant t and perused the record. i 7 The Supreme Court in case of AP. SRTC v. P. Thimpal £eddy, reported in (2905) t2 sect-139, observed in para 6 as Unden “6. After hearing teamed counsel for the respondent- claimant who made an attempt to support the order of the High Court. We find that there was no justincation for the High Court to reiy on the disability certificate issued by Dr. Sudhakar Raddy and enhance the compensation by treating the injury as permanent disabiiity to be 45 per cent. The High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy’s medicai certificate was rejected by the Tribunal for non- examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr. KrM. Mitra andawarded a just and fair compensation. The High Court erredin disturbing the same and enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunai. The respondent-claimant is allowed to withdraw the amount of e:w i compensation awarded by the Tribunai, if it has not already been withdrawn." The $upreme Court in a recent dictum in case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported En z2008) 7 SCC 365, reiterated the same View with the foliowing ebservations in para 11 : “11. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis. such a certificate was issued two years after the accident took place is not known. The author of the said i " ‘ certincate had not been examined. Unless the author of ‘ the certificate examined himsetf, it was not admissibie in evidence. Whether the disability at 60% was calculated L on the basis of the provisions of the Workmen’s Compensation Act or otherwise is not known. it is also not known as to whether he was competent to issue such a certificate. .it even does not appear that the contentions raised before Us had either been raised before the Tribunai or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. in absence of any contention having been raised in regard to the applicability of the Workmen‘s Compensation Act which, in our opinion, ex facie has no application, 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 {tamer Sahu vs. Sarupa Sahu & another vide order dated 31 s‘ March, 2009, placing 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. Thirupal Raddy (supra) and 'Rajesh Kumar alias Raju v. Yudhvir Singh and another (supra), the certificate produced before the Tribunal in the absence of examination of the Doctor issuing the certificate is neither admissible in evidence nor can be taken into consideration as substantive evidence for assessment of the compensation in the case.” Admittedly, the claimant in his own wisdom did not examine Doctor to prove the injury Sustained in the accident and to prove the resultant loss. ln view 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, 1?0. rate ar nr adle wdence nor can be taken t coneran as substane eence for enhancement of ompensan the case. 1. In a motor aecident claim case, as per Section 168 of the otor Vehicles Act, 1988, what s important is that the ompensation to be warded by the Courts/Tribune? should be us nd proper compenstion in the facts and circumstance of cn case. it is neither a boy nor charity For the reasons m‘enned herabove t do not find any 12 tro em cope for enhancement of the compensation awarded by the unal. L The pp filed by the appeiiant for enhancement of the ompensan therefe bie o be and ts hereby dismissed o order as to cost Sd/- H ‘ 71 r N. K. Agarwal Judge s Trib t3 aeal ctio is or ila t N s ‘ f " ‘ r i i i ,w we cetifics e eithe missib m e Ino srdtio tiv wd ctio In g1 M i c a gt a a a unt