MISC. APPEAL No. W g /200 APPELLANT I; /Eichharam, 3/0 Manbodhi, ELAIMANT aged about 42 years, Occupation Farmer R/o Village Nayakbandha r Thana— Abhanpur,Tahsil and District- Raipur (C.G.) ‘ as VERSUS r £ RESPONDENTS: ON-APPLICANTS gf. Krishna Bhalekar, Bha1ekax, aged about S/o 42 Gajanand years, Occupation Driver R/o Village Chhuria, Tehsil and District- Rajnandgaon (0G,) (Driver of the Truck Bearing Regd. No. M.O.R. 9901) 9/2JL/Chawala Harbansh R/o— Sirigh, Baldev S/o Indersingh Bagh, Tehsil & District Rajnandgaon (C.G.) (Owner of the Truck Bearing Regd. No. M.O.R. 993i) 3 The Oriental Insurance “,3 Company Limited Branch Kamthi Lme Through its Divisional Manager, Divisional Office, Jail Road, District Raipur (C.G.) (insurer of the Truck Bearing Regd. No. M.O.R. 9901) zfe APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT, ; 1988 FOR COMPENSATION l Claim in appeal valued at Rs 2 50 000/— With interest @ 12 % Award in sum of Rs 10:6/t/18/— With interest @ 6 % Valued at Rs 2 39 352/- Court Fees paid Rs 15/— . . . . .. 5 m $1 Wx\w¢l,l\%g WZ’OO \S/ MW(¥W> %3imah“%¥¥ l S.B. Hon’ble Shri Justice N.K. 5 05.11.2009 ‘ Shri Satyendra Sahu ‘ Advocates for appellant. Shri SP Kale, Advocatef Shri HS Patel, Advocate Heard on M(C)P No. 14: of delay in tiling the appeal. On due consideration, l l appellant has succeeded in ex; i this appeal. Accordingly M(C delay caused in tiling the appea Heard on admission. The instant appeal has i “ta A arwal with Shri Shivendu Pandya, pr respondent No. 1 & 2. for respondent No. 3. i9/05, application for condonation am satisfied that the counsel for llaining the delay caused in tiling )P No. 1439/05 is allowed and l is hereby condoned. been preferred by the appellant seeking enhancement of compensation against the award dated 10.05.2005, passed by the QXth Additional Motor Accident Claims Tribunal (FTC), Raipur (for short ‘Tribunal’) in claim case No. 80/05. The brief facts of the case according to appellant are that, on. 13.02.02, while the appellant was coming from Abhanpur to Raipur by Truck bearing registration No. MOR 9901, the said Truck turned down due to whiclt the appellant sustained injuries. r A wattaxtqnta—vt-‘s/95—i i nuns—m1 .un,ao0. l l l .imwm M I.m8 aloe $ mmm‘amu) amwm wmm : mam awém mm fg€rm I l / -— ' % W m The appeHant preferred‘an application before the Tribunal ‘: under Section 166 of the Motor Vehicies Act. claiming i compensation to the tune et" Rs. 2,50,000I- for the injuries i i sustained by him on account of the said accident. The ‘ Tribunal, on a close scrutiny of the evidence led by ‘e the parties, the material available on the record, and submissions of the parties, awarded total amount of Rs. 10,648,l~ as compensation in favour of the appellant. ‘ Learned counsel for the appellant Would submit that lalthough the Doctor has not een examined in this matter, but looking to the fact that the a pellant sustained grievous injury, and amount awarded is shock n9 on lower side, this appeal may be allowed and the compensation t i f be enhanced. l have heard the leaped counsel appearing for the appellant and perused the recdird. E E The Supreme Court in ease of A.P. SRTC v. P. Thimpal Raddy, reported in (2005) 12Escc-189, observed in para 6 as i under l l “6. After hearing learned counsel for the respondent- i , ‘ claimant who made an attempt to support the order of the l I High Court. We tind that there was no justinoation for the l High Court to rely on the d'sabiilty certificate issued by Dr. § Sudhakar Raddy and enhance the compensation by i treating the injury as permanent disability to be 45 per cent. The Court committed I l High gross error in overlooking the fact that Dr. Sudhakar Reddy's medical certificate was . -2:;:a'rt%ri; £74 liiii‘rlc'tf zradwtamzfs/95wr r noses-r ,mmoo. av: 3W, WW0, fm yl/VA— Hgg V1200 3/ mm (ma) mmm‘ WW§f§éTmx wlmm - 1 g .— %aimm \ rejected by the Tribun l for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent n the basis of the deposition of Dr. K.M. Mitra and award d a just and fair compensation. The High Court erred in disturbing the same and enhancing the compens tion. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims ’l'rib nal. The respondent-claimant is ‘* ' allowed to withdraw the a ount of compensation awarded by the Tribunal, if it has n talready been withdrawn.” The Supreme Court in recent dictum in case of Rajesh Kumar alias Rhju :v. Yudhv Singh and another, reported in (2008) 7 SCC 305, reiterate the same view with the following observations in para 11 : “11. The certificate in qu stion in this ca‘sa was obtained after two years. It is no known as to whether the Civil Surgeon of the hospital reated the appellant. On what basis, such a certificate s issued two years after the accident took place is no known. The author of the said certificate had not been examined Unless the author of the certificate examined himself, it-was not admissible in i evidence. Whether the ' isability at 60% was cafculated i on the basis of the rovisions of the Workmen’s Compensation Act or otherwise is not known. lt is also i a certificate. It even does not appear that the contentions ‘ raised before us had ‘ither been raised before the not known as to whether he was competent to issue such a Tribunal or the High Cou ,. The Tribunal as also the High Court, therefore, proceeded on the materials brought on i record by the parties. iln absence of any contention ‘ having been raised in regard to the applicability of the i 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.” l; r earraafatriawiis/gs n/zlm—— i 410,000. Mr Ll§§ Wm <3 WE‘vM‘" Wm (ma) I . mmm V4 _ WM fw %§fm m . «m’ mmm 3211mm A Division Bench of thi High Court in case of Pradeep Kumar Sahu vs. Sampa San & another vide order dated 315‘ March, 2009, placing its reii nce upon the dicta of Supreme i i Couit in‘the cases referred above held in para 8 as under: 1 “8. In view of the aboveLquoteddicta of the Apex Court E V ‘ in thecasespf A.P. SRTC v. P. Thimpal Raddy (supra) and Raje‘sh Kumar alias: Raju v. Yudhvir Singh and another :(supra), the ce rtiticate produced before the Tribunaiin ~the absence of examination of the Doctor issuiné the certificate is ne ther admissible in evidence nor can be taken into consid ration assubstantive evidence for assessment of the com ensation in the case." In a motor acoldent ciai case, as per Section 168 of the Motor Vehicles Act 1988 hat is important is that the compensation to be awarded y the Courts/Tribunal should be just and proper compensationiin the facts and circumstance of each case lt is neither a bounty nor charity For the reasons mentioned herernabove l do not frnd any . scope for enhancement of the compensation awarded by the Tribunal The appeal fled by the appellant for enhancement of the compensatron rs therefore lrable to be and rs hereby drsmlssed No order as to costs. Nov. a. Sdl- N. K. Agarwal Judge l l I l i l l e» \virlrv’léfifa‘h§’tTéii S/9S~—H/Zr tw—t ()ll 000 l M «x