I ‘ : ., .. r > : > ’ r Q M r ‘,r,_b;‘4“is.mn Bench IN THE HIGH COURT OF JUDICATURE AT BILASPUR C G I MISC. APPEAL No. I g /2005 AgPELLANT /: Mohan Bhani, S/o Ramsay, g;#§LAIMANT 1/ aged about 40 years, Mo Village Nayakbandha Thana — Abhanp'uLTehsiI and Distn'ct— Raipur (C.G.) VERSUS RE§§ONDENTS: w: N—APPLICANTS f 1 Krlshna aged about Bhalekar 42 years S/o Gajanand . R/o-Vlllage Chuna Tehs11 and i ‘ ’ Dlstnct Rajnandgaon (C G) l = vxk ' river of the Truck Bearing ‘ Q P. Regd. No. M.O.R. 9901) v 2 a Harbansh Singh, S/o Indersingh . R/o— Baldev bagh, Tahsil & District— Rajnandgaon (C.G.) (Owner ofthe Truck Bearing Regd. No. M.O.R. 9901) Wm Onental Insurance j Lme Company Through Ltd Branch 1ts D1V131ona1 Kamthl Manager Divisional Office Jail Road Distrlct Ralpur (C G) , (insurer of the Truck Bearing i Regd NO M O R 9901) i AIPPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT, g 1988 FOR COMPENSATION. E $ ‘ g § I § § ‘ § g l > l ‘ i i7) t‘éé/Q J :i aa‘ nw§WaiA£IS/95*1 1 / 2mm? 1 30,003. as.B. Hon’ble Shn Justice NJ; Agahvél E05." 2009 with Shri Shivenéu Pandya, 1 Shrl Satyendra Sahu Advocates for appellant ’ Shrl SP Kale, Advocate ‘4‘ Heard on M(C)P No. 14l40/05, application for condonation of delay in filing the appeal ‘ On due consuderatlon l appellant has succeeded In e lthls appeal. delay caused in filing the app ‘ Heard on admission. The instant appeal has been preferred by the appellant, seeking enhancement of com ensation against the award dated 10.05.2005, passed by the. lXth Additional Motor Accident Claims Tribunal (FTC), Raipursi (for short ‘Tribunal') In claim case. No 83/05 The brief facts of the case according to appellant are that on 13.02.02, while the appellant was coming from Abhanpur to Raipur by Truck bearing registration No MOR 9901 the said Truck turned down due to which the appellant sustained injuries ’or respondent No. 1 & 2. Shri HS Patel. Adi'mcate for respondent No. 3. .-\ m satisfied that the counsel for laining the delay caused in filing Accordingly M( )P No. 1440/05 is allowed and I is hereby condoned. m WWW? Emmy ‘ mm (WW) I 3321mm s am m WW‘éwm The appellant p{eferred an application before the Tribunal under Section 166 of the Motor Vehicles Act, claiming compensation to the,tune 0' Rs. 2,50,000/- for the injuries ‘s‘ustained by him on account oithe said accident. The Tribunal, on a closle scrutiny of the evidence led by the parties; the material available on the record, and submissions of the parties, aw rded total amount of Rs. 8,788,/— as compensation in favour oft e appellant. 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 shocki g.on lower side, this appeal may be allowed and the compensation be enhanced. i have heard the Ieaitned counsel appearing for the appellant and perused the recdLrd. The Supreme Court in dase of A P SRTC v P Thimpaf Reddy, reported In (2005) 12lScc-189 observed in para 6 as under “6 After hearmg learned counsel for the respondent- claimant who made an attempt to support the order of the High Court We fnd that there was no justifcation for the é Sudhakar High Court Reddy to rely on and the eitrhance sability certifcate the compensation issued by Dr by treating the injury as permanent disability to be 45 per i cent The High Court committed gross error in overlooking the fact that Dr Sudhakar Reddy s medical certifcate was M ewes A t 1 ”we... . . ,. igl /‘ Ac ‘ "vééim’ Edi? JfgttVTWR! {WTI’r‘ra‘vr‘EWS ll/ZiiO’cl—a} ,t)().{)0(). mm (W) mafmm / rejected by the Tribuna for non-examination of that doctor. The Tribunal s determined the physical disability at 15 per cent o the basis of the deposition of Dr. K.M. Mitra and award d a just and fair compensation. The High Court erred in disturbing the same and enhancing the compens ion. Consequently. we allow this appeal, set aside the mpugned order and restore the award of the Claims Tribu al. The respondent-claimant is allowed to withdraw the a ount of compensation awarded by the Tribunal, if it has no already been withdrawn.” The Supreme Court in WWW WWW, _2 , éwfmm recent dictum in case of Rajesh Kumar alias Raju v. Yudhvi Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following lobservations in para 11 : “11. The certificate in que tion in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital t ated the appellant. On what basis, such a certificate issued two years after the accident took place is not nown. The author of the said certificate had not been e amined. Unless the author of the certificate examined hlmself, it was not admissible in evidence. Whether the d'sability at 60% was €§lculated on the basis of the provisions of the Workmen's Compensation Act or othdrwise is not known lt is also not known as to whether hie was competent to'issue such a certificate. it even does hot appear that the contentions raised before us had either been raised before the Court, Tribunal therefore, or the High proceede‘id Court. The on the Tribunal materials as also brought-on the High record by the parties. ;I absence of any contention having been raised in re ard to the applicability of the Workmen‘s CompensationiAct which, in our opinion, ex facie has no application, tlte same, in our opinion, cannot be permitted to be raised for the first time." i mew Mllg7 mzoo 3‘. we? {re-7W: {imiwriE~—IIS/95~t 1 /2<;:;x‘«1 pupal). ‘ a s m a:“W H36] WQOJT A Division Bench of th g Kumar sahu. v5. Sampa Sa u & another vide order dated 315‘ March, 2009, placing its reli nce upon the dicta of Supreme g Court in the Cases referred ab ve held in para 8 as under: "8. ‘ In :view of the abov quoted dicta of the Apex Court inthe'caSes of A.P. SRT v. P. Thimpal Reddy (supra) and Rajesh Kumar alia Raju v. Yudhvir Singh and another (supra), the c rtificate produced before the Tribunal in the absence of examination of the Doctor issuing the certificate is n ither admissible in evidence nor can be taken into consid ration as substantive evidence for assessment of the co pensation in the case." 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 compensatiort in .the facts and circumstance of Kvr. 1 in a motor accident clai each case. lt is neither a bourtity nor charity, For the reasons mentioned hereinabove, i do not find any j scope for enhancement of tits compensation awarded by the i Tribunal. The appeal tiled by theiappellant for enhancement of the compensation is therefore Iiabjle to be and is he‘reby dismissed. No order as to costs. N. K. Agarwa‘ Judge / Sd/ ll iii-921a :i‘ $.21 rinsiieti {mfraniaAzfsws—Ai 1 /‘ 2cm~i £0,909. 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