fi.a:; B^l^'- iJJK^I^.'^ BSilii's ^l'l.!^^ s®w; IIBi! c i»:@nffi(i»ii@ j^g@(]EMaBM^ :'::;aB%%'®ils§»i?"®^' ^SPSE^MWT ygIjAIMANT ^' !:'. '::/' ' ;.1 .^•.•/^li^i ^•'""'^. .•:"": ^^^.i^s" RESPONiElEItFS?; ^fD-^^es^ % M.A.tC'.l.Nb'. w& 'Najja@;N^itia.'Begum, ^aged aBctea.t^ 35ygarS,W/oSHnRBshanJS^ Residenc®;^^Ranlriagaj-•' SKifla^ .P61iGe'.'Sta^QiS':&'^PQM'.©u .I^p^District'Raipur^e.G.J .' ';r''^ •VERgys :..0.":'.:^: ;:,v: '^ ^ -...:..:':..? '•.:-:^.:'. ;Rar^^(^;Rajal{;aged al3&ufe:^5: ^'^^^•^^^y ^ears:,S/6,^KriPHraM^Ram.Rajak'^ R^idence ^ Ai% ?,'I'al^iI':::^:0^'.tf?::PQU<::e^:':':'Y§fae0n:.^ ^r^Bhan^lM-atappur,^:J@isttt',KaM^ (C^G.^(DR!^^ofaUeged;veffiele .•.:C.G.;,04-Grp.41;3).f. •^;;:;-:::::,\;'.^',.~:.. JoUrHal [.Soni, aged about 35 ^ years, S/^o Shn ]%slTtram Si^ 'R^ci c^:^oT''VilIa.ge^Saffil3^^ ;:fTahML ;l.':;^:.&^'.;:i^oIiGe-'^^:-.''Stati^}^ BIiani.tpi-atappur, DiSW Kanlter - (G.G.) (GWNE^ 6f alleged' vehicle ::(£,a::Q4-G/2^l3)'.'::.':^^.^;::'::: ,The.©pental.Insuranee^c pai^' .'I4nnfed'i \ .:• .thr6ugh;';. •©ivisional.^ • ManageK,'^Di^stohaI •©fE^KR&^ ;Kachafia» iCaiowk,^^^^^^ J Raipiu-, Tahsil & E)isti^t^^^ ^(G.U,)^':.^.:^::^:.'/::,1.^:.''^ ^(%l^[a8E;R^.alleged^v6fei(3i!:^a|g :l,Q|^<S^13^^r'.:,.';,.'l,l^,i;-;K: ^i V"! ^s fSSSSSS S8ts®SIS8i• Bl l'<' ^fc MEMO OF APPEAL UNDER SECTION F73 OF MOTOR VEHICLE ACT 1988. 0 'TiCS^: "\ T. •^ t^, do.2S6 OF 'ELLANT/ •ONC Najja @ Najma Begum .'ersus Ramtaran Rajak ai IF THE Fvli 'rs .f^T i^e- 1 , iench: Hon'bie Mr. N.K. Aaanva! Al ;hri A.L. Slnaroul, counsei forthe appellant. 'r^.a^'s.rs. -?tfl 'y 2011) 'he instant appeal has been preferred by the appeiiant seeking enhancement of compensation against the award a'ated 07-07-2010 passed by X Additional Motor Accident Claims Tribunai, Raipur (for short 'the Tribunal') in Cialm Case No.43/2009 whereby and whereunder an amount of Rs. 5,300,''- 'nas been awarded as compensation in favour ofthe appellant and against respondents No.1 & 2, exoneratjns respondent No. 3/lnsurance Company from its liabiiity to pay compensation. 2. Brief facts of the case according to appeilant a.re that, on 21-10-2008, the appellant aiong with other persons was goin^ from Bhsnupratappur to Antagarh as iabourer (coolie) by Matador bearlng registration No. C.G. 04 G 2413. Due to rash ?;;-d neg!Egent driving by the driver, the said vehicle turned tuilie as a result ofwhich the appeilant sustained grievous injuries. 3. The appeliant preferred an application before the Trl.hnncil ; m-^or .^:,»rkfinn 1 s;^ nf tho ^4^Anr l/ahir'isc 1^^ ^l-alminn insai ^3 i;u^i ^s's^^.i'uii i uy Ui U iss EViy<.u^ vs'iji^/iss /•^vi, ^'isiHiiti iy compensation 6o the tune of Rs. 10,50,000/- aiong with interest @ 18% per annum under various heaas fbr the injuries >ustained by hsm in the said accident. .^•.ss^^Ss^,.. i»"".S«. ^°tii. '..•sa» '•%. &..rfiSh,i i's3gy3! j ^B^:J? ^aaS^ ^! 4. The learned Tribunal on a close scrutiny of the evidence led, materia! placed and submissions made held: the appelianS was sitting upon the goods loaded in the orfending vehlcle as a jratuitous passenger, had aiso equaiiy contributed to the cause of accident, jnsurance Company couid not- be held fiabSe to compensate the appellant sitting in the goods vehlcle as a jratuitous passenger, awarded Rs.5,300/- as compensation and exonerated respondent No.3 Insurance Company from its llabllitytopaycompensation. - 5. Learned counsei for the appeilant v/ould submlt: aithough fhe Doctor has not been examined but looking to the fact that ihe appeilant sustained grievous injury, and arnount awarded .by the Tribunai is shockingly on iower side. The tearned Tribuns! has a!so erred in hQiding fhe appeiiant equaliy negiigent in the said accident. 6. ! have heard the learned counsel appearing for the appeilant and perused the record. 7. The Supreme Court Ir reported in 1 case of A.P. SRTC v. P. iCC-189, observed in i^-'u" a 6 as "6. After hearing learned counsel for the respondent-ci'aimant vvho made an attempt to support the order of the High Court. We find that there was no justification for the Hlgh Court to rely on the dlsabillty certificate issued by Dr. Sudhakar 'eddy and enhance the compensation by treating the Injury as permanent disabiiity to be 45 per cent. The High Court committed gross error in overlookini the fact that Dr. Sudhakar Reddy's medicai certificate was rejected by the Tribunai for non- examination of that doctor. The Trlbunal has determined th'e physicai disability at 15 per cent on fhe 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. Consequentiy, we atiow this appeai, set aside the impugped order and restore the award of the Claims Tribunai. The respondent- claimant is ailowed to wlthdraw the amount of compensation awarded by the Tribunal, if it has not aiready been withdrawn." i' ^ The Supreme Court in a recent dictum in case of Rajesh alias Raju v. Yudhvir Slngh and another, reported in (2008) 7 SCC 3S5, reiterated the same view with the fo!iowin( observations in para 11: «^^ i i . 'he certiflcate in question in this case 'A'as obtained after two years. It is not known as to whether the Clvi! Surgeon of t'ne hospita! treated the appei.lant. On what basis, such a certificats was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himseif, it was not admissibie in evidence. Whether the disabitity at 60% was caiculated on the basis of the provisions of the V/orkmen's Compensation Act or otherwise is not known. it is a!so not- known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raisect before us had either been raised before the Tribuna! or the High Court. Thc Tribunsl as also ths Hiyh Court, ihcrefors, proceeded on the materials brought on record by the parties. !n absence of any contention having been raised in ragard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no appiication, the same, In our opinion, cannot be permitted to be raised for the first time." A Diwsion Bench of this High Court in cass of Pradeep Kumar Sahu vs. Sarypa Sahu & another vide order dated 31st Maroh, 2009, piacing its reliance upon the dicta of Suprems Court in the cases referred above heid in para 8 as undei "8. In view of the above guoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thlmpal Reddy (supra) and Rajesh Kiimar attas Rajii v. Yudhvir and anoth&- (supra), the certificate produced before the Tribunal in the absence of examlnation 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." 10. Admittedly, the ciaimant in examine Doctor to prove the injur his own vflsdom did not sustained in the accident ^ and to prove the resultant ioss. 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 norcan be taken Into consideration as substantive evidence for enhancement of compensation in the case. -( ^ i i . Learned counsel for the appellant coutd not point out any illegality In the finding of contributory negtigence recorded by the Tribunai. Moreover, it is tTite iaw, in the absence of specific agresment, the Insurance Company cannot be held liable for person sitting in the goods vehicle as gratuitous passenger. The appeliant also faiied to provs injuries sustained by her by adducing legai'evidence, and in such circumstance, 1 do not find scope for enhancement of compensatlon awarded tha luufia,. For the reasons mentioned herein above,the a| :by dismissed. No order as to costs. Sd/- N.K. Agarwal Judge Kv; -»c