INTHEillGH COURTOF JUDICATUR OF CHHAHISGARH AT BILASPUR M.A.©NO. &J 0/2009 <8«^ APPELLANT (Claimant) -^ ^ c-^ t-' ^\^^J ..-^&^,. -"A ^^ ..'. • ^ '...-•-'^f '^\'>; VERSUS NON-APPELLANTS : 1. Beenu Satnami, Aged about 05 years, S/o Sankar lal, Minor through Legal guardian father- Shankar lal Satnami S/o manhgu aged about 28 years, R/o-Kumhar para, Jarhabhata Tahsil&Distt-Bilaspur(C.G.) Puran das Satnami, Aged about 43 years, S/o Dukhawa, R/o - 1-larcli-Khentara, Police station - Lormi, Distt-Bilaspur (C.G.) Dheerendra Kumar S/o Aghanu ram R/o - Saugoona - Pandariya, Distt-Kabir Dham(C.G.) Iffco Tokyo Genral Insurance Co. Ltd. Ground floor Shop no 345, 347 Lal Ganga Shopping Maul, G.E. Road Raipur, Thasil & District- Raipur (C.G.) MEMO OF APPEAL UNDER SECTION 173 OF MOTER ACCIDENT VEHICLE ACT.1988 2. 3. HIGH COURT OF CHHATTISQARH AT BILASPUR ,8- Beenu Satnaml 5^.5aiii Puran das Satnami and others. UNDER SECTION 113 OF THE MOTOR VEHICLi ACT. 198S. (je Bench: Hon'ble Mr. N.K.Aaarwai. J.l isent Shri Aman Kesharwani, counsel for the appellant. None for respondents No. 1 & 2. Ms. Vandana Dewanaan, counsel on behalf of Shri Y.S. Thakur, counsel for respondent No.3 'assed on 17th day of February, 2010) Th< The instant appea! has been preferred by the appeilant for seeking enhancement of CQmpensatjon against the award dated 16-02-2009 passed by Sixth Addl. Motor Accident Clalms Tribunal, Biiaspur (for short 'the Tribunal') in claim case No. 60/2008 whereby and whereunder an amount of Rs. 30.000/- along with interest @ 9% per annum per annum from the date of appiication, has been awarded as compensation in favour of the appeilant. '2. The brier' facts of the case according to appeliant are that the appellant on 05-02-2008, whife travellng by Auto bearlnc registration No. C.G.09-T/0165 metwith an accident on account of drlving the offending vehicte rashly and negligently and pursuant to said accident, the appeilant sustained grievous injurles. 3. The Tribuna! u? 'compensatioi sustained by speiiant preferred an appiicatlon before the Section 166 of ths Motor Vehicles Act, ciaimins ^ to the tune of Rs. 1,61,000/- for the injuries hirn on account of the sald accident. d®-^is f'i fs '^ 4. The Tribunai, on a close scrutiny of the evidence Isd by the parties, the material avaiiable on tha record, and sijbmissjons of the parties, awarded toSai amount of Rs. 30,000/- as compensation in favour of the appeilant. 5. Learned counse! for the appeilant would submit that aithough the Doctor has not been examined in this matter, but iooking to the fact that the appellant sustained grievous injury, and amount awarded by the Tribunal is shockingly on iower side, this appeal may be aliowed and the compensation be I have heard the learned iant and perused the record. 7. The Supreme Court in case of AP. SRTC v. P. ThirupaS Reddy, reported in (2005) 12 SCC-189, observed in para 6 as under: "6. After hearing tearned counse! for the respondent- claimant who made an attsmpt to support the order of the High Court. Vtfe find that there was no justification for the Hlgh Court to reiy on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating fhe injury as permanent disability to be 45 per csnt. The High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy's medicai certificate was rejected by the Tribuna! for non- examination of that doctor. The Tribuna! has determined the physical disabiiity at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same ap.d enhancing the compensation. Consequently, we aliow this appeai, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is aiiowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn." 8. The Supreme Court in s recent dictum in case of Rajesh ias Raju v. Yudhvir Singh and another, reported in SCC 305, reiterated the same view with the following f'ation; "11. The certificate in question inthis case was obtained after two years. St is not known as to whether the Civii Surgeon of the hospitai treated the appeliant On what ?1 f/ W'J The Tribuna!, on a close scrutlny of the evidence led by the parties, the materia! avsiiable on tha record, and submissions of ths parties, awarded total amount of Rs. 30..000/- as compensation in favour of the appeliant. 5. Learned counsel for the appellant would submit that although ?he Doctor has not been examined In this matter, but looking to the fact that the appellant sustained grievous injury, and amount awarded by the Tribunal is shockingly on lower slde, this appea! may be ailowed and the compensation be enhanced. have heard the learned counsei appearlng for the appellant and perused the record. 7. The Supreme Court in case of A.P. SRTC v. P. ThSmpal Redtiy, reported in 12 SCC-1S9, observed in para 6 as "6. After hearing ieamed counsel for the respondent- ciaimant who made an attsmpt to support the order of the High Court. Vtfe nnd thsi there was no justification for the High Court to reiy on th®disability certificate issued by Dr. Sudhakar Reddy and enhance {he compensation by treating the injury as permanent disabiiity So be 45 per cent. The High Court commitSed gross error in overiooking the fact that Dr, Sudhakar Reddy's medlcal certificate was rejected by the Tribuna! for non- examination of that doctor. The Tribunai has determined the physical disabllity at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. Ths High Court erred in disturbing the same ap.d enhancing the compensatton. Consequentty, we allow this appeai, set aside the impugned order and restore the award of the CSaims Tribunai. The respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunai, if it has not aiready been withdrawn." 8. The Supreme Court in s recent dictum in case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in IOOS) 7 SCC 308, reiterated the same view with the fotlowing irvatlons in para 11 : "11. The certificats in question in this case was obtained after two years. !t is not known as to whether ths Ci'/i Surgeon of the hospital treated the appellant. On what •S^S^SS^S^g^^ .^ggsAii;, ^'\ basis, such a certificate was issued two years after the accident took piace is not known. The author of the said certificate had not been examlned. Unless the author of the certificate examined himself, it was not admissibie in svidence. Whether the disability at 60% was calculated on the basls of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as fo whether he was competent to issue such a certificate. !t even does not appear ihat the contentions raised bsfore us had either been raised before the Tribuna! or the High Court. The Tribunai as aiso the High Court, therefore, proceeded on the materiais brought on record by the parties. in absence of any contention having been raised in regard to the appiicabi!ity of the Workmsn's Compsnsation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for itie first tlm®." 9. A Division Bench of this High Court in case of Pradeep Kumar Sahu vs. Sarupa Sahu & another vide order 31 March, 2009, piacing its rellance upon the dicta of Supreme Court in the cases referred above heto' 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 Reddy (supra) and Rsjesh Kumar alias Raju v. Yudhvlr Singh and another (supra), the certificate produced before the Tribunal in the absence of examination of the Doctor issui'ns the certificate is neither admissible in evidence nor can be taken into consideration as substantiye evidence for assessment of ths compensation in the case." 10. Admittedly, the claimant in his own wisdom did not examine Doctor to prove the injury sustained in the accident and the disability certificate of the treating doctor has also not been filed to prove the resultant loss. In 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, certificates are neither admissible in evidence nor can be taken into consideration as substantive evidence for enhaneement of compensation in the case. 1 11. In a motor accident claim case, as per Section 168 of the Vehieles Act, 1988, what is important is jhaLJhe compensation to be awarded by the Courts/Tribunal should be just and proper compensation in the facts and circumstance of each case. It is neither a bounty nor charity. 12. For the reasons mentioned herelnabove, l do not find any scope forenhancement of the oompensation awarded by the Tribunal. 13. The appeal fiied by the appeilant for enhancement of the compensation is therefore iiable to be and is hereby dismissed. order as to costs. Sd/- N.K. Agrawal Judge Kw V-'U<1'-/ne^j, ^.^ v-rf