C5) ^ IN THE HON»BLEHIGH COURT OF CHATTISGARH.BILASPUR, (C.G.l Miscellaneous Appeal No. f^>6 / 2006 APPELLANT (APPLICANT) RESPONDENTS (Iton Applicants) .A/ i-4?J^ J.&^ iA^ &y /iy ff ^°'y ^" -y^ ^'^ Ramkhelawan Yadav, S/o Bhangar, aged about 60 years, R/o village Maharajganj, DaldaMya Para, P.S. Balrampur, Tahsil Ramanujganj, District Surguja (C.G.). Versus L^ [JShri Pawan Kumar Agrawal, S/o Late <"" Jagdish Rai Agrawal, Proprietor- New Ambika Transport, Seth Basantlal Marg, Ambikapur, Dist Surguja (C.G.) 2, Ganesh Kumar Bari, S/o Harmarayan Bari, Occupation Driver, New Ambika Transport, Ambikapur Dist. Surguja (C.G.) R/o Sattipara, Ambikapur, District Surguja (C.G.) 3. ^Oriental Insurance Company, through its Branch Manager, Branch Office- Sadar Road, Ambikapur, District Surguja (C.G.) ^-" MISCBLLANEOUS APPEAL U/S 173 OF THE MOTOR VEHICLE 1.. ACT BEING VALUED AT Rs. 1;66,800/- AND THE COURT FEE ^-•' OF Rs. 20/- IS BEING AFFIXED UPON IT. ^s\ HIGH COURT OF CHHATTISGARH AT BILASPUR MISC.APPEALNO. 'tS80F200e APPELLANT lADpSlcantl RESPONDENTS NON- APPLICANTS Ramkhelawan Yadav Versus Shri Pawan Kumar Agrawari & otheiis. APPEAL UNDER SECTION 173 OF THE MOTOR VBHICLE ACT. 1988. (Stnate Bench: Hon'bte Mr. N.K. Aaarwal. J.) Present : Shri M.P.S. Bhatia, counsel for the appeJlant. ShriA.K. Yadav.counsel for respondent No.1. Shri P. Dutta, counsel forrespondent No.3. ORALOKDeR (Passed onSth dayofMarch, 201i0) The in^ant appeal has been pref^red t^the appeKant for seeking enhancement of compensation against the award dated 26-11-2005 passed by First Addl. Motor Accldent Claims Tribunal (F.T.C.), Ramanujganj, Dtett. Surguja (for short the Tribunal') in claim case No. 05/2003 whereby and whereuncter an amount of Rs. 8,000/- along with interest @ 6% percent per annum, from the date of appMcation, has been awarded as compensatjon in favour ofthe appellant. 2. The brief facts of the case according to appel(ant are that, on 28-10-2000, the appellantwhile travellng metwith an acddent by offending vehtete Bus bearing registration No. C.P.L./9CK)9 due to rash and negltgent driving by the driver of the bus and pursuant to sald accident sustatned grievous injuries. 3. The appellant preferred an application befwe the Tribunal under Section 166 of the Motor Vehteles Act, daiming compensatjon to the tune of Rs. 1,66,800/- for the Injuries sustained by him on account ofthe said accident. Qso) 4. The Tribunal vide order dated 08-11 "2003 t^is awarded a sum of Rs.25,000/- under Sectlon 140 of the Motor Vehteles Act, to the appellant/clajmant and then on a ciose scruUny of the evidence led by the parties, the material available on the recorel, and submissions of the parties, awarcfed total amount of Rs. 8,000/- along with interest @ 6% per annum from the date of application, as compensation in favour ofthe appellant. 5. Learned counsel for the appellant would submit that atthough the Doctor has not been examined in thte matter, but looklng to the fact that the appellant sustained grievous injury, and amount awarded by the Tribunal is shocktngjy on lower slde, this appeal may be allowed and the compensation be enhanced. 6. I have heard the (earned counsel appearing for the appellant and perused the record. 7. The Supreme Court In case of /l.P< SRTC v. P. TMrupat ffectefy, reported in (2005) 12 SCC-188, observed in para 6 as under: "6. After hearing learned counsel for tti? respondent" claimant who made an attempt Sosupport the order ofthe High Court. W©find that there was no jystification for the High Court to rely on the disability certificate jssued by Dr. Sudhakar Reddy and enhance ttw compen^itjon by treating the injury as permanent disabjlity to be 45 per cent. The High Court committed gross error in overlooking the fact ttiat Dr. Sudhakar Reddy's madical certificate was rejected by the Tribunal for no - examination ®fthat doctor. The Tribynal has cletermJBed the physical disability at 15 per cent on the basit of the deposition of Dr. K.M. Mitra and awarded a just aiad fajr compensation. The High Court erred in disturbing ttie same and enhancing the compensation. Consequently, we allow this appeal, set askte the impugned wder end restore the award of the Claims Tribunal. The respondent-claimant is allowed to withdraw ttw amowit of compensation awarded by the Tribunal, if 5t has not already been withdrawn." 8. The Supreme Court in a recent dtetum in casa of Rajesh Kumar alias Raju v. Yudhvir Singh and another, r^orted in a^) "^ f' (2008) 7 SCC 305, reiterated the same view with the followlog observations in para 11 : "11. The certificate in question in this case was obteined after two years. It is not known as to whether the Civif 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 certificate had not been examined. Unless ttie author of the certificate ©)®minedhimself, it was not adtnissibto in evidence. Whether the disability at 60% was cateulated on the basis of the provisions of the Workmen's Compensatjon Act or otherwise is not known. It is atso not known as to whether he was comp^ent to issue such a certjficate. It even does not appear that the contertions raised before us had either been raised before f Tribunal or the High Court. The Tribunal as als@ the High Court, therefore.proceeded on the matenate brought on record by the parties. In absence of aay contention having been raised m regard to the appljcability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be pemiitted to be raised for the first time." 9. A DMsion Bench of this High Coyrt in case of Prwleep KismaFSahu vs. San/pa Safcy & anoffier vide orcier dated 31st March, 2009, ptacing its reti^nce upon the dictai of 8upreme Court in the cases referred above helcf in para 8 as under: "8. In view of the above quoted dicta of the Apex Cov^ jn the cases of A.P. SRTC v. P. Thirupal RefSdy (sufya) and Ra/^h Kumar allas Raju v. Yudhvtv' Sln^s SRel anotfier (stfpm), the certificate produced before th@ Tribunal in tiie absence of examination of ttie Doctor issuing ttie certificate is neither admisslble in e^derwe n@F can be taken into consideration as sub^intive evidence for assessment ofthe compensation in the case." 10. Admittedly, the clajmant in his own wisdom did not examine Doctor to prove the injury sustalned In the accident and to prove the resultant loss. In view of the dlcta of the above referred cases, the injury reports, certificates pr(%lu(^d, jn the absence of examination of the Doctor Issuing ttie Injury reperts, certificates are neither admjssible !n evidence nor can be taken jnto consideration as substantlve evjdence for enhancem^it of compensatlon in the case. 21 11. In a motor accident claim case, aa per Sectiora 168 of the Motor Vehides Act, 1988, what Is important is tiat the Gompensation to be awarded by the CourtB/Tribunal should be just and proper compensation in the facts and eircumstarrce <rf each case. It is neither a bounty nor charity. 12. For the reasons mentioned hereinabove, l do not find any scope for enhancement of the compensation awarded by the Tribunal. 13. The appeal ffled by the appejlant for enhanGetnent ®(the compensation js therefore tiable to be anrf is hereby dismtssed: No order as to costs. Sd/- N. K. Agarwal Kw