(£) "'"^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR fC.G.) [\ M.A. (Cl f^ /2009 5ii18iB ww APPELLANT : Claimant ^s^^"'" ^••'" RESPONDENTS NON-CLAIMANTS Ashish Kumar Dhiwar, aged about 21 years, S/o. Arun Kumar Dhiwar, R/o. Raj'endra Nagar, behind Ratan Palace, Raipur, Tahsil and District Raipur (C.G.) VERSUS 1. Amit Kumar Son of Hriday Singh Gond (Shyamal), R/o. Samunda Chowk, Near Mahesh Electrical, Jagdalpur, District Bastar (C.G.) 2. Mohan Das Kuldeep, Son of Late L.D. Kuldeep, R/o. Pathraguda, Virsarkar Ward, Mata Mandir Gali, Jagdalpur, District Basfar (C.G.), 3. The New India Insurance Company Limited, Through : The Divisional Manager, Division Office, Kachhari Chowk, Jail Road Raipur (C.G.), Miscellanceous ADpeal under Section 1 73 of the MotQr Vehicle Act, 1994 XI-HC—78 OT^qn'feiis; ?isff sqiS?) gnrEir •S^ -*)|^M^-!, ESTfl'M'ls, r^i7)l<-y MA Cc) ^o /3-fii ^ W< ir^>*!(<?» r W^t'(f3W(^lfTiS«() TOnw^fCT'simi •WtferfR Wffff -it ft^ TftR§TC ^3TR(nsiA?r S.B. Hon'ble Shri Justice N, Aaarwal 28.10.2009 Shri Aditya Khare, Advocjate for appellant; Heardon IA No. 1, appli^ation for condonatlon of delay in filing the appeal. On due consideration, 1 ^m satisfied that the counsel for appellant has succeeded in exf(laining the delay caused in filing this appeal. Accordingly IA Noj. 1 is allowed and delay caused in filing the appeal is hereby coi|doned. Heard on admission. The instant appeal has ^>een preferred by theappellant, seetdng enhancement of comp^nsation against the award dated 27.11.2008, passed by the }jCllth Additional Motor Accident Ctaims Tribunal (FTC), Raipur (Jfor short 'Tribunal') in claim case No. 04/08. I The brief fects of thecase according to appellant are that, on 30.08.2007, the Driver ofTruck bearing registrationNo. CG- 17/H-948, dashed the appetlant and pureuant to said acddent sustained grievous injuries. The appellant preferred an applicatlon before the Tribunal uncter Section 166 of the Mirtor Vehtoles Act, clafming compensation to the tune of Rs. 10,50,000/- forjhe injuries sustained by him on account ofthe said accident. -F, m '. ^»-~_«"<»!. ='^, "^ fiO ^ '^ -^ '*. W .1' ^ gito-'"'^,;;' XI-HC—78 sv^i -3^ fT'rit; TW 3'I^lTflNT -g-s? •<li<.IMJ!, gffl+rre, f».l<'ll<-4.< . ^p.<c-)^o.',,/3,AL/. TWIWW^ISffR' ^raRpfrr im?i>' 4 fs^^S^n ^isiftngit^i The Tribunal, on a clo^e scrutiny of the evidence led by the parties, the material (available on the record, and submissions of theparties, avjrarded total amount of Rs. 6670,/- as compensation in favour oftjieappellant. Shri Khare, learned cjounsel for the appellant would submit that although the Doc^r has not been examined in this matter, but looking to the (^ct that the appellant sustained grievous injury, and amount a^arded is shockingon lowerside, this appeal may be altowed an^l the compensation be enhanced. 1 have heard the leai|ned counsel appearir^ for the appellant and perused the rec<jrd. The Supreme Court in ^ase of A.P. SRTC v. P. Thirupal Reddy, reported in (2005) 12 JSCC-189, observed in para 6 as under: ! 1 "6. After hearing leamefl counsel Tor the respondent- claimant who made an attempt tosupport the order of the High Court. We find that there was no justification for the High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 per cent. The High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent ori the basis of the deposition of Dr. K.M. Mitra and awarded ajustand fair compensation. The High Court erred jn disturbing the same and enhancing the compensatipn. Consequently, we allow this appeal, set aside the impugned ofder and restore fee II Xi.HC—78 TBI "tii^iwi, ^tri'M're, 'fewy .,^/i...fl..cc.)...^£?:.../.i.^ •s-n^r^v (i<(t-it^f) 3W^'plW?: •aqi an^yi giiiN; TOnw^fe .siin -•?>- wiferaN iwrof <f'fe^ tfsn^re •^a^fipign^i award ofthe ClaimsTribi^ial. The respondent-claimant is allgwed to withdrawEhe aiinount of compensation awarded by the Tribunal, if it has n^t already been withdrawn." The Supreme Court in Kumar alias Raju v. Yudhvi| (2008) 7SCC 305, reiterate^ observations in para 11 : after two years. It is nolj basis, such a certificate recent dictum in case of Rajesh |r Singh and another, reported in the same view with the foltowing "11. The certifieate in qu^stion in this case was obtained known as to whether the Civit Surgeon of the hospital t^eated the appellant. On what ^ss issued two years after the accident took place is notj known. The author of the said iNN^r. certificate had not been ^xamined. Unless the auttior of the certificate examined tiimself, it was not admissible in evidence. Whether the ^lisability at 60% was calculated on the basis of the brovisions of the Wortanen's CompensaUon Act or oth^rwise is not known. It is also not known as to whetherjie was competentto issue such a certificate. It even doea' not appear that the contentions raised before us had ^ither been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceedled on the materials brought on record by the parties. !ln absence of any contention having been raised in rsgard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, fte same, in our opinion, cannot be permitted to be raised for the flrst time." A Division Bench of this High Court in case of Pradeep Kumar Sahu vs. SanipaSatlu&another vkle order dated 31 March, 2009, placing its reliance upon the dicta of Supreme Court in the cases referred abpve held in para 8 as under: f\ FL 1 //^ "\ I^B»a .3^si/5^F si%-Z--«I-HC—7S •~v^'-''•' aWil'RTWT wssSysKW ^ Kvr II M fs •g-sf •HTT?iT^T;i, •STfiww, raw'Hg'i, H A Cc> NO . / ^ 3??5?T 'Pi'h ( ?wiw ?if??r 3n'?i Lf wiiwfr=T wwff <[ fs%l-^fsR?n ^sfRn 3d^i "8. In view of the abov^ quoted dicta of the Apex Court in the cases of A.P. SRTCf v. P. Thlrupal Reddy (supra) and Rajesh Kumar alla^ Rafu v. Yudhvir Slngfi and another (supra), the ce^tificate produced before the Tribunal in the absenee |of examination of ttie Doctor issuir^ the certificate is nejther admissible in evidence nor can be taken into considet'ation as substanBve evidence for assessment ofthecomt>ensationin the case." In a motor accident clain|i case,as per Section 168 of the Motor Vehicles Act, 1988, |what Is important is that the compensation to be awarded j)y the Courts/Tribunal should be just and proper compensation jin the facts and circumstance of each case. It is neither a bounty npr charity. For the reasons mention^d hereinabove, 1 do not find any scope for enhancement of th6 compensation awarded by the Tribunal. i The appeal filed by the appellant for enhancement of the compensation is therefore liabl^ to beand is hereby dismissaJ. No order as to costs. ; §d/_ N.K.Agarwal Judge -lisis. flfl^