IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.fQ No./f2r<OF 2009 c- ^'- M V <y ^f '^:' ^l ^l APPELLANT claimant^t^ ......••.:?^s^ ^•^^"/ ^ Respondent No. 1 Non-Applicant No. 1 i Respondent No.2 Non-Applicant No.2 Respondent No.3 Non-applicant No.3 Bahru Yadav, aged about 51 years, Occupation Agriculture Labour, son of Rajwa Yadav, R/o. Kota Basti, Tahsil and District Raipur (C.G.) Versus Narendra Sahu, aged about 24 years, son of Dukhiram Sahu, Occupation Metador Driver, R/o. Village Sargaon, Police Station Hirri, Tahsil and District Bilaspur (C.G.) Anupam Raghav, Occupation Vehicle Owner, son of S.S.Raghav, R/o. Ashinvad Trnasport, Dhamtari Road, Pachpedi Naka, Raipur, ^Tahsil andDistnct Raipur (C.G.). ^S^—X^-^? h^G (jThe QnentaDi Insurance Co. Ltd. DiVisional TTTrougE" DiVisional Manager, Divisional Office, Kachhari Chowk, Jail Road, Raipur, Tahsil and District Raipur (C.G.) Kode No. 162, 4518050, agency Kode 3505, period from 28.01.2006 to 27.01.2007 MISCELLANEOUS CIVIL APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLBS ACT, 1988 FOR ENHANCEMENT OF AWARD -HC—78 fe^ ^ 3=ni^^T'fe^w ^H^RT^I^iNr lW^^IT^*fT^s ~S^ '^TRT^R, ^ftWT^, f^IRTg? rafe-W^--U^J---^20o7 37T^T^R?(1^^) ^^I^R^feT 3^T •^TOf^N TjTq^r ^ f^ZT Tf^R ^T 3ilt^T S.B. Hon'ble Shri Justice 2S.08.2009 N.K. |A<aarwal Shri AS Iqubal, Advocate f^rthe appellant. Heard on IA No. 1 , applica) appeal. Accordingly IA No. 1 is Hon forcondonation ofdelay. On due consideration, 1 ^m satisfied that the counsel for appellant is succeeded Sn explai^iing the delay caused in filing this jallowed and delay caused in filing the appeal is hereby condoned. The instant appeal has |>een preferred by the appellant, seeking enhancement of comp^nsation against the award dated 22.12.2008, passed by IVth Add|. Motor Accident Clalms Tribunal, (FTC), Raipur (for short Tribilinal') in claim case No. 48/08, whereby and whereunder an a|nount of Rs. 29.000/- alongwith interest @ 6 percent per 4nnum has b®®"awarded as compensation in favour ofthe ap|>ellant. The brief facts of the cs^se are that, on 28.C©.2006, the appellant met an accident with CG-04/J-5215 due to rash and Metador bearing registration No. negligent driving of the Metador Driver, and pursuant to said accident sustained injuries. The appellant preferred ah application before the Tribunal under Section 166 of the [Motor Vehicles Act, claiming compensation to the tune of | Rs. 8,80,000/- for the injuries sustained by him on account of s?id accident. -——— 1 ' "'^ ^^Sjm. I I-HC—78 W^^^I'f^TN' ??STT oT^T ^i^ -g-^ ^rrJTrFTO, ^ft^FT^, f^TRry NW^ST ^W^ •-e^ 200' a^TT^^(^^sr) WTfW^fN W^I ^N^Nh "RT^ ^' ft^l'if^R. -^^tiW^?^T The Tribunal, on close s4rutinyof the evidence led by the parties, the material available <^\ the record, and submissions of the parties, awarded total amour^t of Rs. 29,000/- as compensation infavouroftheappellant. | Shri Iqubal. counsel for jthe appellant would submit that although the Doctor has not b^en examined in this matter, but looking to the fact that the appe|ant sustained gravious injury, and amount awarded is shocking o|i lower side, this appeal may be allowed and the compensation b^ enhanced. 1 have heard the learned (^ounsel appearing for the appellant and perused the record. The Supreme Court in c^se of A.P. SRTC v. P. Thirupal Reddy, reported in (2005) 12 under: ^CC-189, observed in para 6 as "6. After hearing learnecj counsel for fiie respondent- claimant who made an att^mpt to support the order of the High Court. We find that t|iere was no justifieation for the High Court to rely on the djsability certificate issued by Dr. Sudhakar Reddy and enhar|ce the compensation by treating the injury as permanent di$ability to be 45 per cent. The High Court committed gross|error in overlooking the fact that Dr. Sudhakar Reddy's medi^al certificate was rejected by the Tribunal for non-examinatidn of that doctor. The Tribunal has determined the physica| disability at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. Th^ High Court erred in disturbing the same and enhancing th^ compensation. Consequently, we allow this appeal. set jaside the impugned order and restore the award of the Cltiims Tribunal. fhe respondent- r; ¥~F '3"^[ ^PT?^[7T, ^cJt^PTS/'f^iRT^I ^WRIT^W^ •^200 ^?i' 1r^r (1j?;if3^^> aTr^l.^T f^hr ^^fT 3Tf^T^"RJ^' ^^R^ifeT^T^T 1 ^N^fl^r -m^f ^ fe^ 'I^IZR '^^fOT-%7T^r claimant is allowed to withdr^iw the amount of compensation awarded by the Tribunal, | if it has not already been withdrawn." The Supreme Court in a |-ecent dictum in case of Rajesh Kumar alias Raju v. Yudhvir jSingh and another, reported in (2008) 7 SCC 305, reiterated ^he same view with the following observations in para 11 : "11. The certificate in qu< after two years. It is not Surgeon of the hospital trc basis, such a certificate accident took place is not certificate had not been exar certificate examined him< evidence. Whether the dis the basis of the provisions Act or otherwise is not kno\ Son in this case was obtained lown as to whether the Civil ited the appellant. On what issued two years after the lown. The author of the said lined. Unless the author of the it was not admissible in ijlity at 60% was calculated on the Workmen's Compensation It is also not known as to whether he was competent jto issue such a certificate. It even does not appear that tljie contentions raised before us had either been raised befor^ the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought 4" record by the parties. In absence of any contentton llaving been raised in regard to the applicability of the Workrjien's Compensation Act which, in our opinion, ex facie has ^to application, the same, in our opinion, cannot be permitted ^.o be raised for ttie firsttime." A Division Bench of this |High Court in case of Pradeep Kumar Sahu vs. Sarupa Sahu\ & another vide order dated 31st March, 2009, placing its reliancej upon the dicta of Supreme Court in the cases referred above held in para 8 as under: -HC—78 ^i^K-i^ ^Tii^4t^, t^rray MWWt ^W^ •Wt200 S^ ^WF (^f^^: 3^7 ~ ^"T 'f^N' 7Tm 3TT^r ^'^hF v •^ %^f^H-RT^ ^ ft^ Tf^K ^ ^it^T Sahu "8. In view of the above q^oted dicta of the Apex Court in the cases of A.P. SRTC v. /f. ThSmpal Reddy (supra) and Rajesh Kumar alias Raju v| Yudhvlr Singh and anothw (supra), the certificate produ^ed before the Tribunal in the absence of examination of tl^e Doctor issuing the certificate is neither admissible in evittence nor can be taken into consideration as substantive ^vidence for assessment of the compensation in the case." In a motor accident claim ^ase. as per Section 168 of the Motor Vehicles Act, 1988, v^hat is important is that the compensation to be awarded by ^\e CourtsfTribunal should be just and proper compensation in thej facts and circumstance of each case. It is neither a bounty nor ctlarity. For the reasons mentione^l hereinabove, 1 do not find any scope for enhancement of the compensation awarded by the Tribunal. The appeal filed by the appellant for enhancement of the compensation is therefore liable t^) be and is hereby dismissed. No order as to costs. Sd/- N.K. Agrawal Judge