^ lisseSsseniss Appgai Nn, { ? ^ I /'2S04 Cj-AIMANTS 1!/' Sahdev Dt igedWv Hstt- Kaj| fo, ftmw Sinuh Dhimr 1,/n Bnefca, P.S- Sanaga, y T& ^^ ^y ..%^ •&••' »^ ^y^ ' <^fl ^" S¥ISSS»S?i y l^y lerma ya. Kuissai, S/n 1W canNt- P.S- Newa! KuHnr, v'o Sewak R canqE, P.S- Mema DJA Baiiuf (C.G.) Eam Hoawanu Didt. Ravur (C.G.) (nnsisnal man^ef, Snnsplex, ifevenAa Hsysi Road.Raipur (C.G.i SQUS AppeaS uiistei/wction ,VG1 Issi^tvi R-ii* hii w^s *w<v ^nh^ ?"+fc?^ ~;i- ^ 1N: i *fl*)WT %W% 's'ss'^iFn^f, 0fl)yis, fa<ni'y^< _..(,4t-.........!..23.3.......... ^ sn^i •q'R? (1pi3SR?) wiw^ifeon^t ^Ct4^^t flfl^t' ^ 'fec^ <^q^K ^T3TfOT3!!^I S.B. Hon'bie Shri Justice N1 Shri Aditya we, Adv^cate for appellant. delay caused in filing the app Shri Ghanshyam Patel, Heard on M(C)P No.l^i of delay in flling the appeal. On due'consideration, appellant has succeeded in ^xplaining the delay caused in filing this appeal. Accordingly 1V|(C5P No.1885/04 is aliowed and Advocate for respondent No. 3. 85/04, application for condonation am satisfied that the counsel for •ai is hereby condoned. Heard on admission. The instant appeal 'na^ been preferred by the appellant, jpensation against the award dated Additional Motor Accident Clairns seeking enhancement of con^ 01.04.04, passed by the Istj Tribunal Raipur (for short 'Tri|)unai') in elaim case No. 102/03. 'he brief facts of the c^se according to appeliant are that, on 27.06.03, Driver of Met^ dor, bearing registration No. r'-f^1 <-»1-1- 04/ZB-0836, dashed the ap,4eilant, due to which t'ne appellant sustained injuries. The appellant preferre^i an application before the Tribunai under Section 166 of thfe IVIotor Vehicles Act, claiming compensation to the tune |3f Rs. 5,20,800/- for the injuries sustained by him on account |3f the said accident. !frt! ?&^T^:I/TTrt^r'b-^*^l"^fl?F~^1y*-'1^ !<-ii+ ^I sft*f[«h 'S^t '^M\vt^, a-nlwis, Roni'yy ,..^WV..-.-.(-.3'2.^..-....-.... 3>3'^"-"---^200/^ 3il^iT5R:r('^3^?) wnw^ftaw^i -2. *l<il<>f4l'< *iiwff 'if test <F»i<«;i( ^aiRmat!^ Fhe Tribunal, on a clo^e scrutiny of the evidence led by the parties, the material submissions of the partie^ 25,000,/- as compensation in available on the record, and awarded total amount of Rs. favour of the appellant. Shri Khare; learned jsounsel for the appeiiant would submit Shat although the Docjtor has not been examined in this matter, but looking to the j[act that the appellant sustained grievous injury, and amount ^warded is shocking on lower side, this appeai may be allowed ai|id the compensation be enhanced. i have heard the le^rned counsel appearing for the appeiiant and perused the recjord. The Supreme Court in ^ase of A.P. SRTC v. P. Thirupa! Reddy, reported in (2005) 1^ SCC-189, obsen/ed in para 6 as under: "6. After hearing learn^d counsel for the respondent- claimant who made an at^empt to support the order of the High Court. We find that]there was no justification for the High Court to rely on the pjsability certificate issued by Dr. Sudhakar Reddy and ^nhance the compensation by treating the injury as pq-manent disabiiity to be 45 per cent. The High Court conlmitted gross error in overlooking the fact that Dr. Sudhakaf Reddy's medical certificate was rejected by the Tribun^l for non-examination of that doctor. The Tribunal | has determined the physical dlsability at 15 per cent <?n the basis of the deposition of Dr. K.M. Mitra and awardjed a just and fair compensation. The High Court erred | in disturbing the same and enhancing the compens^tion. Consequentty, we allow this appeal, set aside the|impugned order and restore the IG—78 <n*TCtI tb*1tt»» TSf •^l^llci^, iStfl'M'is, Rwwy ^^..MA^..........l3,^........... "f s^vf^; (lic<U'*<^) .N^!^Bl1yiW ^S^ St)H ^smn^fCTSi^r -? «hl»li<-f4)-lMltltA' 4ft^tf*it<l< ^affin-ait^ award ofthe Claims Tribilinal aiiowed to withdraw the ^noi by the Tribunal, if it has The respondent-claimant is ^nount of compensation awarded n|3t already been withdrawn." The Supreme Court in Kumar alias Raju v. Yudhvf (2008) 7 SCC 305, reiteratei|l observations in para 11; ^ recent dictum in case of Rajesh fr Singh and another, reported in the same view with the followinc on the basis of the "11. The certificate in qu^stion in this case was obtained after two years. tt is no( known as to whether the Civii Surgeon of the hospital (reated the appeilant. On what basis, such a certificate ^vas issued two years after the accident took place is no< known. The author of the said certiflcate had not been 4xamined. Unless the author of the certificate examined jiimseif, it was not admissible in evidence. Whether the (Jisability at 60% was calculated brovisions of the Workmen's ••'r-w Compensation Act or oth|erwise is not known. It is also not known as to whether (ie was competent to issue such a certificate. !t even doesj not appear that the contentions raised before us had ^ither been raised before the Tribunal or the High Cour(. The Tribunal as also the High Court, therefore, proceed^d on the materials brought on record by the parties. |ln absence of any contention having been raised in r^gard to the applicability of the Workmen's Compensatio(i Act which, in our opinion, ex facie has no application, 1f~\e same, in our opinion, cannot be permitted to be raised (or the first time." ! A Division Bench of thi^ High Court in case of Pradeep Kumar Sahu vs. Sanipa Sa/ijy & snothervide order dated 31st March, 2009, placing its reli^ince upon the dicta of Supreme Court in the cases referred ab^ve held in para 8 as uVider: a^igjj^i,aa^(^ig^aaatiai^'is"a!L<tiiw"5:i*"®'i^t"i^.^L3^a< —-h, ffl .s-.y'-"" .'";a.: :'. \ !,^ || 1%Slsi|, | 1:1^., : ^^.^—78 R-ii'* n%'%R?iwTOt ») - J ~?ST'^TF?RPT, ®ttl'M<16,l««ni-H^< *<IHW! 9>Ntt(»""'""'""'"" ""WI. 200 SII^T irag? (•ipfg^r) ?<W8R^ltel3i!^I '^plfepftf WRcff if 1WSt '<Ffl«(K ^^(OT3I!^iT ahu "8. In view of the aboVe quoted dicta of the Apex Court in thecases of A.P. SRfC v. P. Thirupal Reddy (supra) and Rajesh Kumar aliTps Rafu v. Yudhvir Singh and another (supra), the |;ertificate produced before the .......TfilitiFfeBn the absencfe of examination of the Doctor • ^ ;;iiss{flng(it8e certificate is rjeither admissibie in evidence nor ; can'be".ttken into consitleration as substantive evidence ,. . ,. .forasges^ment ofthe co|npensation in the case." ...In a^^pr accident ci^im case, as per Section 168 ofthe Motor Vehicles Act, 1988) what is important is that the compensation to be awardeig by the Courts/Tribunal should be just and p.roper compensaticjn in the facts and circumstance of each case. It Is neither a boijnty nor charity. For the reasons mentitjined hereinabove, 1 do not find any scope for enhancement of |he compensation awarded by the Tribunal. The appeal filed by th^ appellant for enhancement of the compensation is therefore lisjble to be and is hereby dismissed. No order as to costs. Sd/- N.K. Agrawal Judge