@ / kw IN THE HIGH CQURT OF JUDICATURE AT BILASPUR CHI-IATTISLEARH knivision Bench, NgSCELLANEOUS APPEAI , N0.- /0 KL?) OF 2005 . (MEMORANDUM OF APPEAL U/S 173 OF THE MOTOR VEHICLES ACT, 1988) ./Chaitram S/o Ramsai, aged about 31 years, R/o— Nayakbandha , Police Station—Abhanpur, Dist¢,.Raipur (C.G.) ESPONDEN /1,. Krishna Bhalekar S/o Gajanand \l‘ J Bhalekar, aged about 42 years, R/o- Village — Churiya, Dist~ Rajnandgaon (C.G.) x2. Harbansh Singh S/o Indar Singh Chawla, Resident of - Baldeobag, District —Rajnandgaon (C.G.) 3;, The Oriental Insurance Company Limited, Branch — Kamthi Line, Rajnandgaon, Through Divisional Manager, Kutchery Chowk, Jail Road,Raipur,District — Raipur (C.G) .L v/ MEMORANDUM OF APPE AI 1 UNDER SECTION 173 OF il'HE MOTOR VEHICLES ACT, 1988 , RTS WQTW wwéwm 05 11 2009 Shri Shivendu Pandya, Advocate for appellant. Shri SP Kale, Advocat for respondent No. 1 & 2. Shri HS Patel, Advocat for respondent No. 3. Heard on admission. The instant appeal ha been preferred by the appellant, seeking enhancement of co ensation against the award dated 10.05.2005, passed by the lXth Additional Motor Accident Claims Tribunal (FTC), Raipu (for short 'Tribunal’) in claim case No. 88/05. ‘ The brief facts of the c se according to appellant are that, ’on 13.02.02, while the appellant was coming Raipur by Truck bearing registration No. MOR 9901, the said Truck turned down due to which the appellant sustained injuries The appellant preferred an application before the Tribunal under Section 166 of the Motor Vehicles Act claiming compensation to the tune of Rs. 2,50,000/- for the injuries sustained by him on account of the said accident. The Tribunal, on a close scrutiny of the evidence led by the parties, the material ’available on the record, and submissions of the partiesi awarded total amount of Rs. 25,551 ,l— as compensation in favour of the appellant. ‘ i l i i r dairiamaevtrs‘ws—i 1 Himawi .e)u.00<.). vs wvrawm W ” «cs, Wm J3 M. 1 W3 amaw 1w W260 S” WNW(W) wé3imm mmm 1 wwwam ‘_ ” %31.Wm\$ Learned counsel for t e appellant would submit that although the Doctor has not een examined in this matter, but looking to the fact that the a pellant sustained grievous injury, and amount awarded is shock ng on lower side, this appeal may be allowed and the compensa on be enhanced. l have heard the lea ned counsel appearing for the appellant and perused the rec rd. The Supreme Court in ase of A.P. SRTC v. P. Thimpal Raddy, reported in (2005) 12 scc-189, observed in para 6 as unden "6. After hearing’learne counsel for the respondent- claimant who made an att mpt to support the order of the High Court. We find that ere was no justification for the High Court to rely on the d sability certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 per the fact that Dr. Sudhakar eddy’s medical certificate was rejected by the Tribuna, for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent oh the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. The High Court erred gin disturbing the same and enhancing the compensation. Consequently, We allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn cent. The, High Court comFtted gross error in overlooking l i i i Int-awrfa— ~t‘s/95~—t 1 names >1 toopnri. <. WWW The Supreme Court in 1a recent dictum in case of Rajesh Kumar alias Raju v. Yudhvlr Singh and another, reported in (2008) 7 SCC 305, reiterateri the same view with the following observations in para 1 1 : “11. The certificate in qu‘estion in this case was obtained after two years. It is no‘t known as to whether the Civil Surgeon of the hospital treated the appeiiant. On what basis, such a certificate was issued two years after the accident took place is not. known. The author of the said certificate had not been xamined. Unless the author of the certificate examined imself, it was not admissible in evidence. Whether the isability at 60% was calculated on the basis of the revisions of the Workmen's Compensation Act or o rwise is not known. lt is also not known as to whether e was competent to issue such a certificate. lt even doe not appear that the contentions raised before us had ither been raised before the Tribunal or the High Cou . The Tribunal as also the High Court, therefore, procee ed on the materials brought on record by the parties. In absence of any contention having been raised in r gard to the applicability of the Workmen’s Compensatioh Act which, in our opinion, ex A Division Bench of this High Court in case of Pradeep Kumar Sahu vs. sampa Sahu & another vide order dated 31 5‘ V March, 2009, placing its reliance upon the dicta of Supreme i Court in the cases referred abpve held in para 8 as under: i “8. ln view of the abov‘ quoted dicta of the Apex Court in the cases of A.P, SRT v. P. ThimpalReddy (supra) and Rajesh‘Kumar aliaf Raju v. Yudhvir Singh and L.c. ., > .4. maisiria»is/95—~i i him/r $0,000. 311%?I mm amwéwam‘aa‘ ‘ f another (supra), the rtiflcate produced before the Tribunal in the absenc of examination of the Doctor issuing the certificate is n ither admissible in evidence nor can be taken into consi ration as substantive evidence for assessment of the co pensation in the case." In a motor accident cla m 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 compensatio in the facts and circumstance of each case. It is neither a bou ty nor charity. For the reasons mentio ed hereinabove, l do not hnd any scope for enhancement of t e compensation awarded by the Tribunal. The appeal filed by theg appellant for enhancement of the compensation is therefore liabEIe to be and is hereby dismissed. No order as to costs. St!!- N. K. Agarwal Judge -‘ .r {Taigma'w—b #95:“) 1 / mar—4 Acmaom t i l l