S l MISC. APPEALNO. 23g OF 2002 Smt. Lata $ahu \ ‘ é‘ 1‘ ‘ l APPELLANT LgLaimanJt Versus RESPONDENTS Rajendra Tiwari & another. NON- . ¥ APPLICANTs [APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ‘ ACT, 1§88= {Single Bench: Hon'ble Mr. N K Agarwah J l Eresent : Shn H M Solapurkar counselforthe appellant \‘u‘ " ’ Shn shallendra Sharma counsel for respondent No1 ORAL ORDER (Passed on 15‘“ day of January, 2010) The instant appeal has been preferred by the appellant for seeking enhancement of compensation against the award dated 0&1 1-2001 passed by Fourth Addl. Motor Accident Claims Tribunal, Durg (for short ‘the Tribunal') in claim case No 28/1998 whereby and whereunder an amount of Rs 35 200/- along With interest @ 9% percent per annum has been awarded as compensation in favour of the appellant. 2. ‘ The brief facts of the case according to appellant are that on 08-05-1998 the appellant while going from Pachpedi Naka Raipur to M Ml hospital along With her Sisters by riksha met With an accident by offending vehicle Bullet bearing registration No MP 23 YA/O141 (Old No CIT-5899) due to rash and negligent driVing by the driver of the motorcycle (Builet) and pursuant to said accident sustained grievous injuries i i 3. .1 The appellant preferred an application before the Tribunal under Section 166 of the Motor Vehicles Act claiming compensation to the tune of Rs 3000001- for the iniuries ..\ /" i sustained by her on account of thesaw/~/ i " r i I l ; ‘ \ \ ( ‘ ‘ \ ‘ The Tribunal, on a close scrutiny of the evidence led by t‘he parties, the material available on the record, and éubmissions of the parties, awarded total amount of Rs. 3§,200/- as compensation in favour of the appellant. 4. 5. Learned 1counsel for the appellant would submit that ‘lthough the Doctor has not been examined in this matter, but looking to the fact that the appellant sustained grievous injury, nd amount awarded by the Tribunal is shockingly on lower side, this appeal may be allowed and the compensation be enhanced. 6 lhave heard the learned counsel appearing for the appellant and perused the record, 7. The Supreme Court in case of A.P. SRTC v. P. Thimpal Raddy, reported in (2005) 12 sec-189, observed in para 6 as undeh “6. After hearing learned counsel for the respondent- claimant who made an attempt to support the order of the High Court. We find that there was no justification for the High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 per cent. The High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy’s medicai certincate 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. KM. Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The compensation awarded by the Tribunal, if it has not already been withdrawn.” £8. The Supreme Coutt in a recent dictum in case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (2008) 7 Scc 305, reiterated the same view with the following observations in para 11 .: “11. The certificate in question in this case was obtained atter two years. lt is not known as to whether the Civil Surgeon of the hospital treated the appellant. 0n what basis, such a certincate was issued two years after the accident took place is not known. The author of the said i i l respondent-claimant is allowed to withdraw the amount of - i l VJ. certiticate had not been examined. Unless the author of the certificate examined himself. it was not admissiblé in evidence. Whether the disability at 60% was calculated 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. ln 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." Va 9. A Division Bench of this High Court in case of Pradeep kumar Sahu vs. sampa Sahu & another vide order dated 313* hilarch, 2009, p‘lacing its reliance upon the dicta of Supreme Court in the cases referred above held in para 8 as under: “8. ln view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thimpal Reddy (supra) and Rajesh Kumar alias Raiu 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.“ i l 1;0. Admittedly, the claimant in his own wisdom did not examine Doctor to prove the injury sustained in the accident and ti) prove the resultant loss. In view of the dicta of the above rieferred cases, the injury reports, certificates produced. in the absence of examination of the Doctor issuing the injury reports, certificates are neither admissible in evidence nor can be taken into consideration as substantive evidence for enhancement of compensation in the case. 1‘1. I In a motor accident claim case, as per Section 168 of the Motor Vehicles Act, 1988, what is important is that the compensation to be awarded by the Courtsfl'ribunal should be just and proper compensation in the facts and circumstance of each case. lt is neither a bounty nor charit l ‘ y. 12. or the reasons mentioned hereinabove, l do not nnd any %cope for enhancement of the compensation awarded by the Tribunal. 3. The appeal tiied by the appeilant for enhancement of the compensation is therefore iiabie to be and is hereby dismissed. o order as to costs. Sd/r N. K. Agarwai h Judge §‘\ i i i i i ii ‘ i i s” .7 ,s F