1»»^. IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Misc^Appeal fd N0 - 2009 APPELLANT: [Claimant] / SMT. SHANTI TIRRKI, D/o Shri Khoura Ram Tirrki, Aged - 23 years, profession service as Ward Aya, Shamudaik Swasth Kendra Lakhanpur R/o - Mohalla Bhatapara Ambikapur. ^ Dist. - Sarguj'a [C.G.] VERSUS RESPONDENTS: 1. The Oriental Insurance Company Limited ^ [Non-Claimants] Ambikapur, Branch office Ambedakar chouk, Manendragarh road, Ambiakpur, Dist. - Sarguja [C.G.] ^ l1"^1^ 2. Sunil Kumar Gupta S/o- Shri Shivpyare Gupta, Aged - 40 years, cast Teli, Profession owner of bus, R/o - village and mohlla Ar^ Balrampur, Thana Dhorpur, Dist. - Sarguja [C.G.] ^"" 3. Mohamniad Haqik S/o- Shekh Mohammad, aged- 35 years, Profession driver of bus, R/o - village Uadri P.S. 8& Tahsil Lundra Dist. - Sarguja [C.G.] APPLICATION FOR UNDER SECTION 173 (1) OF THE MOTOR VEHICLE ACT 1988 (THER AFTER CALLED THE ACT FOR ENHANCMMENT QF THE AMOUNT OF COMPENSATION AND MODEFICATION REGARDING APORTIONMENT OF AMOUNT OF COMPENSATION J XI-HC—78 W^T^ r^w Tf^i ^Tl^T ^:H^ ^" wp^n ^w^i "?^r ^ww^, ^Ti1^4i<o/1^<n!^^< ,.^^.G.......V!24....................^2003 ^T^?TTT3RT (^lf^S^) 1C1c<Tr^T'^rft^ W^T ^s^t<rt<i1tl 'HTR^ff ^f fe^ Tt^i^T ^3tRR3i?^l S.B. Hon'ble Shri Justice N.K. Aaarwal 09.11.2009 Shri Vijay K Deshmukh, Shri Ghanshyam Patel,| Shri Abhishek Sinha, Advocat^ None for respondent No^ Counsel appearing foi1 Mvocate forappellant. Advocate appears on behalf of for respondent No. 1. 2 & 3 though served. the parties submits that the dispute relates to quantum o|f compensation and respondent No. 2 & 3 are not necessary p^rty to be heard, therefore, notice to respondent No. 2 & 3 may b^ dispensed with. On due consideration, thje prayer is allowed. Since the counsel for t| matter, therefore, the appeal is Heard on admission. The instant appeal has] ^e parties are ready to argue the |heardfinally. been preferred by the appetlant, seeking enhancement of compjensation against the award dated 23.10.2008, passed by the Surguja (for short 'Tribunal') in bearing registration No. CC^ Motor Accident Claims Tribunal claim case No. 49/06. The brief facts of the ca^e according to appellant are that, on 10.12.2005, the appellant rjiet with an accident with the Bus -15/ZA-0748 due to rash and negligent driving of the Bus Drjver and pursuant to said accident sustained grievous injuries. \^ i^W-M^-.^-t^.i—^^^ ^M~MTf^':. INi^ |i>^|^s54N-| '-HC—78 ^II^T'^T R^ioh TTm BTT^T -^FRNF ^ ^fmnr ^r»*sic(» •3-sr ^iqKrj^ ^•ri1<44i<o; f®l<nra^< . ^A-C 'W^IOO^ 3Ti^?r Tpw (^flN^) '^flW^rf^ 3^1 The appellant preferred under Section 166 of the| compensation to the tune o] sustained by her on account o\ |an application before the Tribunal Motor Vehictes Act, claiming Rs. 2,27,700/- for the injuries the said accident. the parties, the material submissions of the parties, ^?Rfe?^f 1RTR^?f ^ 'fe(^ T^l^ "^'3?fm3TR¥T The Tribunal, on a closie scrutiny of the evidence led by lavailable on the record, and awarded total amount of Rs. 15.600,/- as compensation in f^vour ofthe appellant. Learned counsel for t|ie appellant would submit that although the Doctor has not t|een examined in this matter, but looking to the fact that the apjpellant sustained grievous injury, and amount awarded is shock|ng on lower side, this appeal may be allowed and the compensatjon be enhanced. 1 have heard the leaijned counsel appearing for the appellant and perused the reccj Reddy, reported in (2005) 12 under: »rd. The Supreme Court jn c^ase of A.P. SRTC v. P. Thirupal SCC-189, observed in para 6 as "6. After hearing learnejj counsel for the respondent- claimant who made an att^mpt to support the order of the High Court. We find that ^here was no justification for the High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and e|ihance the compensation by treating the injury as perjnanent disability to be 45 per cent. The High Court comijnitted gross error in overiooking the fact that Dr. SudhakarJReddy's medical certificate was ^ Rfl r 1 1 ^..J." ^., '^y^ ..-•:-' Xl-HC—78 ^ ^..t^ ^pR'iTtiwr^ '3'^ ^TRT^PT, ^tl1^4{^ f®l<ni<H^< R^-^-^-L-----(n200^ ^TI^T TI^T (yif^^T) a^i^T'f^w ^f^T 3?i^I ^TjNf ^* iRTW[^if?Tf ^ry^r cr){^?€li4iiW^f ^f 'fe^ T^R?R '^>3?fw3T?^r rejected by the Tribunal doctor. The Tribunal disability at 15 per cent 01 Dr. K.M. Mitra and award< The High Court erred enhancing the compensa this appeal, set aside the award ofthe Claims Tribur allowed to withdraw the ar bythe Tribunal, if it has noi The Supreme Court in a Kumar alias Raju v. Yudhvir (2008) 7 SCC 305, reiterated observations in para 11 : for non-examination of that as determined the physical the basis of the deposition of a just and fair compensation. |in disturbing the same and tion. Consequently. we allow ipugned order and restore the ^al. The respondent-claimant is |ount of compensation awarded already been withdrawn." recent dictum in case of Rajesh Singh and another, reported in jthe same view with the following after two years. It is not the certificate examined h "11. The certificate in que^tion in this case was obtained iknown as to whether the Civil Surgeon of the hospital tr^ated the appellant. On what basis, such a certificate vjras issued two years after the accident took place is not |<nown. The author of the said certificate had not been e^camined. Unless the author of mself, it was not admissible in evidence. Whether the d|sability at 60% was calculated on the basis of the rirovisions of the Workmen's Compensation Act or oth^rwise is not known. It is also not known as to whether h^ was competent to issue such a certificate. It even does |iot appear that the contentions raised before us had ejther been raised before the Tribunal or the High Court.| The Tribunal as also the High Court, therefore, proceed^d on the materials brought on record by the parties. Ih absence of any contention having been raised in re^ard to the applicability of the Workmen's Compensationj facje has no application, tl1 be permitted to be raised f(j Act which, in our opinion, ex e same, in our opinion, cannot f the first time." ^ ""^ i - ^ .XPHC—78 '5^ ^i^Kn^, 'gTTiwi^, f^rrafy ^mdT^pn^ 'w: 2003 3??^l ^T'f^iFF ^^ ^^l^^^ l^; V-" 3TI^?r °q^T ( ^li^<^) ^<iT^R^f^T^H^ _-r.^. SaHu 1. ^T^feRT^T 'Wl^ff '^ fe^ if^S^R ^? .stf^q 3??t^ A Division Bench of thi^ High Court in case of Pracfeep Kumar Sahu vs. Sarupa Sah^i & anoffiervide order dated 31st March, 2009, placjng its relisjnce upon the dicta of Supreme Court in the cases referred abcjve held in para 8 as under: "8. In view of the abov^ quoted dicte of the Apex Court in the cases of A.P. SRTC^ v. P. Thirupal Reddy (supra) and Rajesh Kumar alia^ Raju v. Yudhvfr Sfngh and another (supra), the ce|rtificate produced before the Tribunal in the absence jof examination of the Doctor issuing the certificate is ne|ther admissible in evidence nor can be taken into considel'ation as substantive evidence for assessment ofthe comt)ensation in the case." In a motor acddent clair|i case, as per Section 168 ofthe Motor Vehicles Act, 1988, compensation to be awarded just and proper compensation what is important js that the t»ythe Courts/Tribunal should be in the facts and circumstance of each case. It is neither a bounfy nor charity. For the reasons mentior^ed hereinabove, I do not find any scope for enhancement of th Tribunal. The appeal filed by the compensation is therefore liab No order as to costs. ^ compensation awarded by the ^ppellant for enhancement of the je to be and is hereby dismissed. Sd/- N.K. Agrawal Judge 1