^vo ^ HIGH GOURT OF CHHATriSGARH AT BILASPUR MISC. APPEAL (Cl N0.1868 OF 2009 APPELLANT Fclajmantl RESPONDENTS NON- CLAIMANTS Pradeep Bansai, aged about 46 years, S/o B.D. Bansal. R/o LI.G. 161, Housing Board Colony, Tatibandh, P.S. Amanaka, Raipur, Tahsil and District Raipur (C.G.) Versus 1. Satyendra Yadav, aged about 27 years, S/o Surendra Yadav, Occupatton Vehicle Driver, R/o Santoshi Nagar, Near Hanuman Mandir, P.S. Tikara Para, Raipur, Tahsil and District Raipur (C.G.) 2. Smt. Manjit Kaur, Wife of Surendra Singh, R/o Transport Nagar, Tatibandh, P.S. Amanaka, Raipur, Tahsil and Distrtot Raipur (C.G.) 3. I.C.I.C.I. Lombard Generat Insurance Company Limited, Through : The Branch Manager, Branch Office, Lalganga Shopping Mal, G.E. Road, Raipur (C.G.) MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. 1974. (Sinale Bench: Hon'ble Mr. N.K. Aaarwal. J.l Present : Shri S..C. Verma, counsel along with Shri Aditya Khare, counsel forthe appeliant. ORALORDER (Passed on 4th day of January, 2010) The instant appeal has been preferred by the appellant for seeking enhancement of compensation against the award dated 28-03-2009, passed by Second Addl. Motor Accictent Claims Tribunal, RaSpur (for short 'the Tribunal') in cjatm case No. 125/2cx)8. whereby and whereunder an amount of Rs. 9,700/- along wlth interest @ 6 percent per annum has been awarded as compensation jn favour ofthe appellant. ^ 2. The brief facts of the case according to appellant are that, on 14-04-2008 white returning to his residence on his motorcycte bearing regfstration No. C.G. 04 CK 3346 met wlth an accident by offending vehicle Truck (Tanker) bearing registration No. CG-04/JA-7212 due to rash and n^ngent driving of the Truck dwer and pursuant to said accNent sustained grievous jnjuries. 3. The appellant preferred an application before the Tribunal under Section 166 of the Motor Vehicles Act, claiming compensatlon to the tune of Rs, 19.50.000/- for the injuries sustained by hjm on account ofthe said accident. 4. The Tribunal, on a close scrutiny of the evidence led by the partjes, the material avajlable on the record, and submissions of the parties, awarded total amount of Rs. 9,700/- as compensatjon In favour ofthe appellant. 5. Learned counsej for the appellant would submit that although the Doctor has not been examined in this matter, but looking to the fact that the appellant sustained grievous jnjury, and amount awarded by the Tribunal te shockingly on lower side, this appeal may be allowed and the compensatlon be enhanced. 6. I have heard the leamed counsel appearing for the appellant and perused the record. 7. The Supreme Court in case of A.P. SRTC v. P. Thimpal Reddy, reported in (200S) 12 SCC-189, observed fn para 6 as under: "6. After hearing learned counsel for the resporKterrt- claimant who made an attempt to support Uie order of the High Court. Wefind thatthere was no justification for the High Court to rely on the disability certjficate issuect 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 overiooking the fact that Dr. Sudhakar Reddy's medicaJ .certificate was rejected by the Tribunal for non- examination of that doctor. The Tribunal has detonnined the physical disabjlity 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 and enhancing the compensation. Consequently, we allowthis appeal, set aside the impugned order and ^ :~:T;^^ restore the award of ttie Claims Tribunal. The respondent-daimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn." 8. The Supreme Court in a recent dtetum in case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 30S, rejterated the same view wjth the foHowing observations 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 tiie hospital treated the appellant On what basis, such a certificate was issued two years after the accident took place is not known. The auttior of the said certificate had not been examined. Unless the author of the certificate examined himself. it was not admlssible in evidence. Whether the disability at 60% was calcutated on the basis of the provisions of ttie Woricmen's Compensation Act or otherwise is not known. tt is atso 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 ©ither been raised before the Tribunal 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 ttie applicability of the Workmen's Compensation ^t which, in our opinion, ex fade has no applicafion, the same, in our opinion, cannot be permitted to be raised for ttie firet time." 9. A Divjsion Bench of this High Court tn case of P/acfeep Kumar Sahu vs. Sampa Sahu & anolher vide order dated 31st March, 2009. placing its reliance upon the dtota of Supreme Court in the cases referred above held in para 8 as under "8. In view of the above quoted dicta of th®Apex Court in the cases of A.P. SRTC v. P. Thlrupal Reddy (suyva) and Rajesh Kumar aliasRaju v. Yudhvir Singh and another (supra), the certificate produced before the Tribunal in the absence of examination of the C^>etor issuing the certificate is neither admissibte in evidence nor can be taken into consideration as §ut?stantiv© evidence for assessment of the compensation in tti® case." 10. Admjttedly, the claimant in his own wiSGtom did not examineDoctor to prove the injury sustatned In the accident and to prove the resultant loss. In view of the dteta of the /^••*^- '"- .f' %^m-. K f£ A ^^^ above referred cases, the injury reports, certificates produced, in the absence of examination of the Doctor issuing the injury reports, certiflcates are neither admissible in evidence nor can be taken into consideration as substantlve ewdence for enhancement of compensation in thecase. 11. 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 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 hereinabove, l do not flnd any scope for enhancement of the compensation awarcted by the Tribunal. 13. The appeal filed by the appellant for enhancement of the compensation Ss therefore liable to be and is hereby djsmissed; No order as to costs. sd/~ N.K. Agrawal Judge Kvr