BEFORE THE HON'BLE HIGH COURT OF CHHATTSIGARH AT ^ILASPUR M.A.(C ) No. ^ S5 /2009 ^^PPELLANT CLAIMANT ,.RESPONDENTS ^-APPLICANTS ^- ^^€^ ..^Sl^ ,.-"''<.-.^'\>'y ^f y ^ Gopal Sharma S/o. Amba Lal ^ Sharma, aged about- 24 years, Occupation- Business, Caste- Brahmin, R/o. Village Bhagalpur, in front of BTI, Jashpur, Tahsil & District- Jashpur (C.G.) VERSUS 1. Lakshmendra Kumar S/o. Kaushal Ram Nirala, aged about- 23 years, Occupation- Driver, R/o. Village Karrapali, P.S. Malkharod, District- Janjgir present address- Mahuapali, P.S. Kharsia, District- Raigarh (C.G.) (DR|VER) /2. Smt. Shobha Devi Agrawal W/o. S.K. Agrawal, R/o. Ganj Bazar, Kharsia, District- Raigarh (C.G.) (OWNER) \. The New India insurance Company Limited, Branch Office, • Saktigudi Chowk, Raigarh, District Raigarh (C.G.) (INSURER) ^ \^" APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. ^ XI-HC—78 *1WCTr l»»Hi<sh '3^r v^i^i<n^ ^Ti1^^i<o/[^<ni<ri^< ...Ml..A^........T:..s.3.., •^20001 3:H^T 'R^T (^(^<^T) a^^T^T^lN? ^^T 3?T^T ^"RN 4- T^TW^f^T^T^T S.B. Hon'ble Shri Justice N.K. Aaatwal b4en 31.07.2009 Shri Shakti Ra] Sinha, Advo<|;< The instant appeal has seeking enhancement of 06.02.2009, passed by Motor Ac^ (for short 'Tribunal') in MAC whereunder an amount of Rs. 3£ percent per annum has beenawe|r of the appellant. The brief facts of the casfe appeliant whiie driving his Indica Car bearing registration No| negiigent driving of the Car Drivet sustained injuries. The appellant preferred anj under Section 166 of the compensation to the tune of sustained by him on account of saij The Tribunal, on close parties, the materiai available on the parties, awarded tota! amount in favour ofthe appeilant. dase <=hl^id^1^TirR1^f ^ fe^ ^HE^K ^3tRR 371^1 patefortheappellant. preferred by the appellant, comperjsation against the award dated ;ident Ciaims Tribunal, Jashpur No. 06/07, whereby and ^5,300/- alongwith interest @ 9 ;|rded as compensation in favour cas^ are that, on 21.12.2004, the Motorc^ycle met an accident with Tata CG 13 C-0108 due to rash and I, and pursuant to said accident lapplication before the Tribunal Pflotor Vehicles Act, ciaiming 15,83,000/- for the injuries ii9 accident. R!s scr^tiny of the evidence led by the jthe record, and submissions of |3f Rs. 35,300/- as compensation U-. XI-HC—78 "3"^ ^i^Kri^, <t$Tilwi<s, f^rray ^ ^^^ ^^ w*f<irsbNich ^200 3iI^T 'q^RF (^3^?) 37I^T ^FT f^N)' ^SH 3?i^T ^^jcb Shri Sinha, counsel for the| [aithough the Doctor has not beer| liooking to the fact that the appellanjt fracture of left femur bone, and arliount |lower side, this appeal may be allojwed lenhanced. I have heard the learned coijinsel appearing for the parties ^nd perused the record. ^<T?W1R^T^'?T ^ The Supreme Court in casej fteddy, reported in (2005) 12 SC( lunder: "6. After hearing learned claimant who made an attemplj High Court. We find that ther^ High Court to rely on the Sudhakar Reddy and enhance the injury as permanent disabij High Court committed gross Dr. Sudhakar Reddy's medical Tribunal for non-examination of has determined the physical di^; basis of the deposition of Dr. K.j and fair compensation. The the same and enhancing the we allow this appeal, set asi4 restore the award of the Claim4 claimant is ailowed to withdraw awarded by the Tribunal, if withdrawn." "SFI^ta^T ^i^<nT1Sf "fe^ Tf^R^R ^ 3?tf?R 3?1^T appellant would submit that examined in this matter, but sustained gravious injury and awarded is shocking on and the compensation be of A.P. SRTC v. P. Thirupa! M89, observed in para 6 as c<lunsel for the respondent- to support the order of the was no justification for the disabplity certificate issued by Dr. tfie compensation by treating |ity to be 45 per cent. The err^r in overlooking the fact that (^ertificate was rejected by the that doctor. The Tribunal i^ability at 15 per cent on the .|VI. Mitra and awarded a just Hfeh Court erred in disturbing cc|mpensation. Consequently, asicje the impugned order and Tribunal. The respondent- ^he amount of compensation it has not already been ^ ^' -/\ XI-HC—78 ^^ "4i^t<n^, ^ft^PT^, l®ldt'Lt^< ..M.^fc. ^^ 'W^T ^qjch"'^-^"7- ••••••-•••••-•••••-••"^200 ^ 3^?T TPR5l (yiI^^T) a^r^T^fN? ^TT ^?T^T ^IW The Supreme Court in a Kumar aiias Raju v. Yudhvir (2008)78cc305, reiterated ttl observations in para 11 : c?)i^t^<il<i ^TO^ff ^f fe(2t ^^K '^>3fRR3?T^T r^cent dictum in case of Rajesh (ingh and another, reported in fe same view with the foliowing "11. The certificate in questi^n in this case was obtained after two years. It is not kifrown as to whether the Civil Surgeon of the hospital treaped the appellant. On what basis, such a certificate wa^ issued two years aftsr the accident took place is not kr^>wn. The author of the said certificate had not been examtned. Unless the author of the certificate examined himselft it was not admissible in evidence. Whether the disak{ility at 60% was calculated on the basis ofthe provisions of Act or otherwise is not know; ;he Workmen's Compensation It is also not known as to whether he was competent Vp issue such a certificate. It even does not appear that th^ contentions raised before us had either been raised before jthe Tribunal orthe High Court. The Tribunal as also the Hig|h Court, therefore, proceeded on the materials brought oi| record by the parties. In absence of any contention h^ving been raised in regard to the applicabitity of theWorkm|en's Compensation Act which, in our opinion, ex facie has n{) application, the same, in our opinion, cannot be permitted t() be raised for the first time." ^ligh Court in case of Pradeep S< another vide order dated 31 st A Division Bench of this Kumar Sahu vs. Sarupa Sahu March, 2009, piacing its reliance jjpon the dicta of Supreme Court in the cases referred above held irji para 8 as under: -r\ XI-HC—78 7^[ ^ii^!<n<Li, ^xi1^4i<o, f^<ni^y ^.M.^^.....5^3?.. NIN<41 »»*is«^ ff : W^Tf ^FH? (^3€^) 3T?^T ^T f^TNF 7T^T^?7^?[ 5b*lW \f^ Sahu ^•- "8. In view of the above quf the cases of A.P. SRTC v. Pj Rajesh Kumar alias Raju v.\ (supra), the certifjcate producjed absence of examination of th4 is neither admissible in evic9ence consideratioh as substantive e|/ compensation in the case." ctase In a motor accident claim Motor Vehicles Act, 1988, wtlat compensation to be awarded by tlije and proper compensation in the case. It is neither a bounty nor ch^r For the reasons mentionedl scope for enhancement of the Tribunal. The appeal filed by the ap^ellant compensation is therefore liable to i order as to costs. 4)l^!l<rt^1'< WT^f ^ fS^T ^R$R ^3ffiR3?TT^T >ted dicta of the Apex Court in Thirupaf Reddy (supra) and Yucfhvir Singh and another before the Tribunal in the Doctor issuing the certificate nor can be taken into /idence for assessment of the i, as per Section 1 68 of the is important is that the e Courts/Tribunal shouid bejust 'acts and circumstance of each rity. [hereinabove, 1 do not find any t;ompensation awarded by the for enhancement of the {be and is hereby dismissed. No Sd/- N.K.Agrawal Judge