livision THE BIQi COURT QF CHHMTISSARH AT BIIASPUR. M.A. N0. ^13 /2003. ^ 1J a»»»1H APPELIANT PIAINAHT Sat;. Filomiaa Kujar w/o Late Fllip Kujar, aged about 35 years, Occupatlon-Household, r/o vlllage Kardlh, Tebsi.1 Jashptir, Bistt. Jashpur, C.G. V E R S U S ^••'s1^'1^ RESPONDENTS 8 1, HOhaianad Farukh s/o I>ate Mohamnad ^Q Rasid, r/o Kbarslya Naka, 1\ SsabIJsa.pw:, Blstt. Surguja, C.G. i;^fc>L.-- y'^'s1-'' <0 %-^ /'^y ^w .<?'\t<?'/-/ ^<y/ ^ (OWNER) &" 2y Krisbna Prasad Yadav @ ttodgo /') s/o Cfeaiadru Yadav,'Oecupation- Ite-iver, r/o Jashparaagar (Bawatoli), Bistt. Jashpar, C.G. (I»IVER) ,3.<^The Oriental Xasarance Cocecpavy I.td. ^,<^-Sadar Road, AaBlsapur, Dlstrict f^ Surguja, £ocal Branch Offlce Ralgarh, C.G. (INSURER) APPE&L VSEER SBI^IOH 173 OF THE MOTOR VEHICLES ACT. aBBEAL VM.UEB JS S3H OS RS. l.SO.OOO/-^. CO-EIRI FEES P&TD RS. 15/- OSLY.^-^ Beiag aggr.j.gved wltb tbe award dgfced 29.7.2003 passed la M.A.C.C. No«~26/2002 by tbe XInd Moter Ascdeat daims Trlbunal, (Fast Track Gourt) Jasfapur, Bistri.Gt Jashpur, C.G., the appellants aaned above beg fee pref^r this aemo of appeal on the follewiag facts and grou.nds anongst others. -/ coittd. .2 <i-i»K!B| fciaimanti Smt. Filomina Kujur Mohammad Farukh and others. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLi ISinate Bench: Hon'ble Shri Shakti Raj Sinha, counsel for the appeilant. None for respondents No.1 S 2. Shri B.D. Guru, counsel for respondent No.3. (Passed on 15 day of February, 2010) The instant appeal has been preferred by the appeiiant for seeking enhancement of compensation against the award dated 29-07-2003 passed by Second Motor Accident Claims Tribunal (F.T.C.), Jashpur (for short 'the Tribunal') in claim case No. 26/2002 whereby and whereunder an amount of Rs. 5,500/- aiong with interest @ 9% percent per annum has been awarded as compensation in favour of the appeliant from the date of application till its payment. 2. The brief facts of the case according to appellant are that the appeilant met with an accident by offending vehicle Bus bearing registration No. M.P. 27/5454 due to rash and negligent driving by the driver of the bus and pursuant to said accident, the appeltant gustained grievous injuries. 3. The appelfant preferred an applibation before the Tribunal under Sections 140 and 166 ofthe Motor yehicles Act, daiming compensation to the fune of Rs. 3,5Q,500/-aiong with interest 12% per affnum, for the injuries sustalned by her on account of the said accident, |E»> f.y-^ (^ .i.siineia 4. The Tribunal, on a ciose scrutiny of the evidence led by the partles, the materiai svailabie on the record, and submissions of the parties, awarded total amount of Rs. 5.500/- aiong with interest @ 9% per annum, as compensation in favour 5. Leamed counsei for the appellant would submit that although the Doctor who has issued the disability certificate, has not been examined in this matter, but looking to the fact that fhe appeiiant sustained grievous injury, and amount awarded by the Tribuna! is shockingly on lower side, this gppeal may be ailowed and the compensation be enhanced. H a 7. have heard the learned counse! appeari.ng for the 'he Supreme Court ISil case of A.P. SRTC v. P. SCG-189, observed in para 6 as "6. After hearing Jeamed counse! for the respondent- claimant who made an atSempt to support the order of the High Court. We find that there was no justificsiion for the High Court to rely on the disability certifcate 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 medical certificate was rejected by the Tribuna! for "on- examination of that doctor. The Tribunai 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 and enhancmg the compensation. Consequentiy, we a!!ow this appeai, set aside the impugned order and restore. the award of the Claims Tribunal. The respoi^ent-ciaimant is aiiowed to withdraw the amount of compensation awarded by the Tribunal, if it has not aireaa'y been wJthdrawrr,"- The Supreme Court in a recent dictum in case of Rajesh alias Raju v. Yudhvir Singh and another, reported in 7 SGG 305, resterated the same view with the following itions in para 11 :-. "11. The certificate in question in this case was ootained after two years. it is'jiot known as to whether the Civii ^•:y^s .^^ Tv '.;:! Kli& | MK WSSSIS Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued fcwo years after the accident took p'lace is not known. The author of the said certificate had not been examlned. Untess the author of the certificate examined himseif, it was not admissibie in evidence. Whether the disability at 60% was calculated on the basis of the provislons of the Workmen's Compensation Act orptherwise is not known. it is ateo not known as to whether he was competent to issue such a certificate. !t even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, procesded on the materials brought on record by the parties. in absence of any contention having been raised in regard to the appiicability of the Workmen's Compensation Act which, i.n our opinion, ex facie has no applicaSion, the same, in our opinjon, cannot be permitted to bs raised for the first time." 9. A Division Bench of this High Court in case Qf Pradeep Kumar Sahu vs. Sarupa Sahu & anoftervide order dated 31 Mareh, 2009, placing its reiiance upon the dlcta of Supreme Court in the cases referred above held In para 8 as under: "8. En view of the above quoted dieta of the Apex Court in the cases of A.P. SRTC v. P. Thinapal Reddy (supw) and Rajesh Kumar alias Raju v. Yudhvir Singh and another (supra), the certificate produced before the Tribunai in the absence of examination of the Doctor issuing the certificate is neither admissible in evidence nor can be taken into considsration as substanti'/s evidence for assessment ofthe compensation inthe case." 10. Admittedly, the claimant in. his own wisdom did not examine Doctor to prove the injury sustained in the accident and to prove the resuttant 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 admissibie in evidence nor can be taken into consideration as substantive evid^nce for enhancement of compensation in the case. 11. 11. in a motor accident c'aim case, as per Section 168 of the Motor Vehl&les Act, 1988, what Is important is that the co.mpensation to be awarded by the Courts/Tribunal should be gcii.U^ II ^;|»*—| ;i ^ 4' 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 find any scope for enhancement of the compensation awarded by the Tribunal. 13. The appeal filed by ffie appeliant for enhancement of the compensation is therefore liable to be and is hereby dismissed. No order as to costs. Sd/- . N.K. Agrawal Judge <l.T WtaalMI