w ^ ^^RVE RUREES ^ c-F.^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C (^ M.A.fC) /2009 ^,/..- .^^ i-^f ^;% =^^ /^ ^ ^ p 1'^i II ^ ';-^ .^ a & ^;: APPELLANT : Claimant ^r: ,^-;-^^ •^•^^^ Smt. Dulari Sarthi W/o Sheetal Sarthi, Aged about 38 Years, R/o Aadarsh Nagar, Mathpara, infront of Dr. Jethani, Raipur, Tahsil and District Raiipur (C.G.) VERSUS RESPONDENTS NON-CLAIMANTS 1. Toran Das S/o Sakhadas Manikpuri, Occupation : Auto Driver and Owner, R/o Goutam N.agar, Kankalipara Ward Lakhenagar, Thana Purani Basti Raipur, Tahsil and District Raipur (Chhattisgarh) 2. The Oriental Insurance Company Pvt. Limited, Branch Office No. 2, Divisional Manager, Divisional Office, Kutchery Chowk, Jail Road, Raipur (C.G.) Miscellanceous Appeal undeL^ection 173 of the MotorVehicle Act, 1994 JVj.A.fCl No.170 OF 2009 lclalmantl Smt. Ouiari Sarthi W/o Sarthl, Aged about 38 years, R/o Aadarsh Nsgar, Mathpara, in front of Dr. Jethani, Ralpur, Tahsil and District Ralpur (C.G.) Versus. 1. Toran Das S./o Sakhadas IVIanikpurl, Occupation : Auto Driver and Owner, R/o Goutam Nagar, KanRaJlpara Ward Lakhenagar, Thana Purani Basti, Rajpur. Tahsil and District Raipur (Chhattisgarh) 2. The Oriental insurance Company Pvt. Limited, Branch Office No.2, Divlsionai Manager; Divtelonal Office, Kutchery Chov^k, Jall Road; Raipur (C.G.) ACT. 1994. Non'Me Mr. N.K. AaarwaE, J.l Present : Shri S.C. Verma, counsel forthe appeilant. Shri H.B. AgrawaS, Senior Advocate with Smt. Meera Jaiswal.. counse! for respondent No.1. Shrl Shallendra Sharma, counsei for respondent No.2. on 12th day of AprlS, 2010) The instant appeal has been preferred by the appetlant for seeking enhancement of compensatlon against the award dated 31-07-2008 passed by EEeventh Addl. IVIotor Accident CEalnis Tribunal, Raipur (for short 'the Tribunai') in ciaim case No. 03/2008 whereby and whereunder an amount of Rs. 22,000/- along with interest @ 6% percent per annum has been awarded as compensation in favour ofthe appeliant. \\ 2. The brief facts of the case according to appellant are that, on 13-03-2007, the appeSfant while travellng by Auto bearing registratjon No. C.G. 04/2A-5006, met with an accident due to rash and negllgent driving by the driver of the offendjng vehicle (auto) and pursuant to said accjdent sustajned grlevous Injuries. 3. The appeliant preferred an appllcation before the Trlbunal under Sectlon 166 of the jVlotor VehlcJes Act, claimjng compensation to the tune of Rs. 8,50.,000/- for the injuries sustained by her on account ofthe sald accident. 4. The Tribunal, on a ctose scrutlny of the evidence ied, material piaced and submisslons made. awarded totat amount of Rs. 22,000/- as compensation in favour of the appeijanf along with interest @ 6% per annum. 5. Learned counse! for the appeliant wouid sybmit that althoiigh the Doctor has not been examlned in this matter, but lookjng to the fact that the appeliant sustajned grievous injury, and amount awarded by the Tribunai is shocklngly on iower side, thjs appeai may be allowed and the compensation be suitably enhanced. 6. I have heard the iearned counsel for the parties and perused the record. 7. The Supreme Court in case of A.P. SRTC v. P. TMnspal reported in .(2085) 12 SCC-189, observed jn para 6 as under: "Q. After hearlng learned counsel for the respondent- ciaimant who made an attempt to support the order of the High Court. We find that ther©was no justification for the Hlgh Court to re}y on the disabiiity certlficate issued by Dr. Sudhakar Reddy and enhance She compensation by treating the injur^ as permanent disabjiity to be 45 per cent. The Hlgh CourS commltted gross error in overlookJng the fact Dr, Sudhakar Redd/s medlcal certlficate was rejected by the Tribuna! for non- examinatjon of that doctor. The TribunaE has determined the physical disability at 15 per cent on the basis of the deposition of Dr. K.M. Mltra and av/ardsd a just and fasr compensation. The High Court erred in dlsturbEng the same and enhancing the compensation. Consequentiy, we allow this appeal, set the JiTipugned order and ^^^-^.^.^ ,-^\. "''% ^^ ^ ^ ^—^ restore the award of the Ciaims Tribunai. The respondent-ciaimant is afiowed to withdraw the amount of compensation awarded by th© Tribunai, if it has not aiready been wlthdrawn." 8. The Supreme Court in a recent dictum jn case of Rajesh Kumar aSsas Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the foliowlng observatlons in para 11 : "11. The certificate in question In this case was obtained after two years. It is not known as to v/hether the Civil Surgeon of the hospEtal freated the appellant. On what basls, such a certjficate was issued two years after the accident took p!ace is not known. The author of the said certificate had not been examined. Uniess the author of the certiflcate examined himself, it was not admissible in evidence. Whether the disabiSlty at 60% was calcuiated on the basis of the provisions of the Workmen's Compensatlon Act or otherwise is not known. }t Is a!so not known as to whether he was competent to issue such a certlficate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunai as aiso the High Court, therefore, proceeded on the materials brought on record by the parties. in absence of aoy contention having been raised in regard to the applicabi!jty of the Workmen's Compensation Act which, in our opinion, ex has no appilcatlon, the same, in our opinEon, cannot be permitted to be rajsed for the first time." 9. A Divjsjon Bench of this High Court jn case of Pradeep KismQr Sahu vs. Sarupa Sahu & ssoffiervide order dated 31st March, 2009, placing Its reiiance upon the dicta of Supreme Court 3n the cases referred above heid Jn para 8 as under: "8. in view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thirupai Reddy (supra) and Rajesh Kumar alias Raju v. Yudhvir S'mgh and another (supra), the certsficate produced before the TribunaE in the absence of examinalion of the Doctor issuing the certificate Is neither admissible in evjdence nor can be taken into consideratlon as substantlve evidence for assessment ofthe compensation in the case." 10. Admlttediy, the daimant in hls own wisdom did not examlne Doctor to prove the injury sustained in the acddent and to prove the resuitant loss. In view of the dicta of the above referred cases, the injury reports, certificates produced, in the l'TO ^^' ; ^^ ^,^ T? ^•s^ ^ ^r^ Kvr 4 absence of examinatlon of the Doctor issuing the injury reports, certjficates are neither admissible in evidence nor can be taken Into consi'deration as substantive evidence for enhancement of compensation in the case. 11. !n a motor accident ciaim case, as per Section 168 of the iViotor Vehicles Act, 1988, what is important is that the compensation to be awarded by the Courts/Tribunai shouid 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 herelnabove, l do not find any scope for enhancement of the compensation awarded by the Tribunai. 13. The appeai fjled by the appeliant for enhancement of the compensatjon is therefore liabie to be and is hereby dismissed. Sd/- N.K.Agrawal Judge !••! 1.1