IN THE HIGH COURT OF JUDICATURE AT BILASPUR fC.G.) M.A. No. (^^ /2006 APPELLANTS : ^CLAIMENTS RESPONDENTS: NON-APPLICANTS ^ f' / :1--'^ '^ 3. lyan Verma S/o Hriday Ram Verma, Aged about 40 yrs. R/o Vill. & P.0. Karmada, P.S. Balauda Bazar, Distt. Raipur(C.G.) Vs. Dilip Kumar Rajak, S/o Shiv Kumar Rajak, By Mesors Vardhman Kargo Career, T.P. Nagar, Tattibandh, Raipur Mesors Vardhman Kargo Career, T.P. Nagar Tatibandh, Raipur The Oriental Insurance Co. Ltd. By Divisional Manager, The Oriental Insurance Co. Ltd., Kachahari Chowk, Jail Road, Raipur, Distt. Raipur (C.G.) Miscellaneous Appeal under Section 173 of the Motor Vehicle Act. 1994 & HIGH COURT OF CHHATTISGARH AT BILASPUR MISC.APPEALNO. 6SS OF 2006 APPELLAMT IcSalmantl RESPONDENTS MON-APPL8CANTS Kalyan Verma Versus Dllip Kumar Rajak and Others. APPEALUNDER.SECT10N_173 OF THE MOTOR VEHICLE ACT. 1994. (SinaSe Bench: Hon'tole IVIr. N.K. Aaarwal. J.l Present : Shri S.C. Verma, counsel ajong with Shri Aditya Khare, counse! for the appe!lant. Shri Deepak Gupta., counseS on behatf of Shri S.S. Rajput, counsei for respondents No.1 & 2. Shri A.K. Athaley, counsel for respondent No.3. ORAL (Passed on 27th day of January, 2010) The instant appeal has been preferred by the appellant for seeking enhancement of compensation against the award eiated 13-09-2005 passed by Fsfth Addl. Motor Acoident Ciaims Tribuna!, Ralpur (for short 'the Tribunal') In claim case No. 15/2004 whereby and whereunder an amount of Rs. 17,050/- aiong with Interest @ 6% percent per annum has been awarded as compensation in favour of the appellant. 2. The brief facts of the case according to appellant are that, on 12-06-2004 at about 2-30 A.M., the appe?fant while traveling in the vehicle Budero bearing registration No. C.G. 04 B-7053, met with an accident by offendlng vehlcle Truck bearing regjstration No. C.G. 04 ZC 0310 due to rash and negligent driving by the driver of the Truck and pursuant to the sajd accident sustained grievous injuries. 3. The appeflant preferred an application before the Tribunai under Section 166 of the Motor Vehteles Act, ctaiming compensation to the tune of Rs. 14,59,000/- along with jnterest @ 12% per annum for the injuries sustained by him on account ofthesajdaccident 4. The Tribunai, on a ciose scrutiny of the evidence ted by the partles, the material avaSjable on the record, and submlssjons of the parties, awarded total amount of Rs. 17,050/- along with interest 6% per annum as compensation in favour of the appellant from the date of appjlcatlon. 5. Learned counsel for the appellant would submit that although the Doctor has not been examined in this matter, but Sookjng to the fact that the appejjant sustalned grievous injury, and amount awarded by the Tribunal is shockingly on lower side, this appeaj may be allowed and the compensatjon be enhanced. 6. Per contra, learned counsel appearing for the respondents have supported the Impugned award and submitted that the learned Tribunaj has rightJy passed the award in favour of the appeilant. 7. j have heard the Jearned counsel appearing for the parties and perused the record. 8. The Supreme Court in case of A.P. SRTC v. P. Thlnipaf R@My, reported in (2005) 12 SCC-189, observed in para 6 as under: "6. After hearing Jearnect counsel for the respondent- claimant who rnade an attempt to support the order of the High Court. We fmd that there was no justiftcation for the High Court to reiy on the disabiljty certiflcate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disabiiity to be 45 per cent. The High Court commitSed gross error in overiooking the fact that Dr. Sudhakar Reddy's medical certificate was rejected by the Tribunal fpr non- examination of that doctor. The Tribunal has determined the physicai disabiiity at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequentiy, we aliow this appeaj, set aside the impugned order and restore the award of the Ciaims Tribunal. The respondent-cfaimant is allowed to withdraw the amount of compensation awarded by the TribunaS, if it has not atready been withdrawn." ^ R- 9. The Supreme Court In a recent dictum in case of Rajesh Kumar alias Raju v. Yudhvir SIngh and another, reported in (2008) 7 SCC 30S, reiterated the same view with the foiiowjng observations in para 11 : "11. The certificate in question Jn this case \vas obtained after two years. !t is not known as to whether the Civii Surgeon of the hospitel treated the appellant. On what basis, such a certjficate was fesued two years after the accident took place is not known. The author of the said certfficate had not been examined. Unless the author of the certificate examined himself, it was not admissifaJe in evidence. Whether the disabjlity at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is aiso not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunaj as also the High Court, therefore. proceeded on the materials brought on record by the parties. In absence'of any contention having been ralsed in regard to flhe appjjcabiiity of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time." 10. A Djvision Bench of this High Court in case of Pratfeep Kumar Sahu vs. Sarupa Sahu & anotfeervide order dated 31st March, 2009, pladng its reliance. upon the dicta of Supreme Court jn the cases referred above held in para 8 as under: "8. !n view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thirupal Reddy (supra) and Rajesh Kumar allas Raju v. Yudhv/r Slngh and another (supra), the certificate produced before the Tribunal in the absence of examination of the Doctor issuing the certificate is neither admissible in evidence nor can be taken into consideration as substantive evidence for assessment of the compensation in the case." 11. Admiftedly, the claimant in his own wisdom did not examine Doctor to prove the injury sustajned in the accjdent and to prove the resultant loss. In view of the dicta of the above referred cases, the injury reports, certlficates produced, in the absence of examination of the Doctor issuing the injury reports, certjficates are nerther admissible in evidence nor can be taken g _JJ '^^".-^' into consideration as substantive evidence for enhancement of compensation jn the case. 12. In a motor accident clatm case, as per Section 168 of the Motor Vehicles Act, 1988, what Ss important is that the compensation to be^awarded by the Courts/Tribunal should be just and proper compensation in the facts and circumstance of each case. it is neither a bounty nor charity. 13. For the reasons mentioned hereinabove, l do not find any scope for enhancement of the compensation awarded by the Tribunal. 14. The appeai filed by the appellant for enhancement of the compensation is therefore liable to be and te hereby dismissed. No order asto costs. N. K. Agarwal Jydge Kvr