:y t)'l IN THE fflGH COURT OF CHHATTISGARH AT BILASPUR Misc-Appeal(C) N0. % 3 ^> /2009 APPELLANT: CL-^-IM^KJT c- \^ ^•f l^^iSfa^ 's MSSaua! cNarad Singh, S/o Shobhit Ram Singh , ^.\^) ^Thakur,Aged about 28 years, R/0 ^..u^—vallage Gadhabhata, Thana-Saja, .\ \.^-""^-^-'^ .t^e^' ^<»»A"''"'...t.-\<9<o"v"'' Distt. Durg (CG) VERSUS NON-APPELLANTS: ^E.S,p6^r)£MTe, 9 ^ I. Chintaram, S/o Bhagwani Nmnalkar, aged about 40 years, R/o Dhamdha Naka, Kailasnagar, Thana Mohannagar, Distt. Durg (CG) .S'.TMangah-am, S/o Shriram Sahu, aged about 40 years, R/o Bemetara, Distt- Durg (CG) — (Owner) 3. The New India Insurance Co. Ltd. Divisioaal Office, Bilaspur, (C.G.) -—(Insurer) MEMORANDUM OF MISC.APPEAL UNDER SECTION-173 OF THE MOTOR VEfflCLES ACTJ988 -p Xl-HC—78 -g^ ^rar^?, ri^y-iti, fsi-^Tray ..^.Mc:)....fJ..o.,...&^ 3n^T'ir5R;(ipf3^q) MitSl^fr-fl^ TiqT 3ITOT •B'ln'F '^mw ^rfNsro^ ^rafwft5! •cniraf if ftist ^R^TC ^sffinaiRRi S.B. Hon'ble Shri Justice N.K. 04.09.2009 Shri Anil Gulati, Advocate f^r the appellant. Shri Raj Awasthi, Advocate for respondent No.3. Heard on IA No. 1 , applicatjon for condonation of delay. On due consideration, 1 aifi satisfied that the counsel for appellant has succeeded in expl^ining the delay caused in filing this appeal. Accordingly IA No. 1 is allowed and delay caused in filing the appeal is hereby condonjed. Heard on admission. The instant appeal has b^en preferred by the appellant, seeking enhancement of compenjsation against the award dated .! 29.12.2008, passed by Addl. M^tor Accident Claims Tribunal, Bemetara, District Durg (for shoft 'Tribunal') in claim case No. 18/08, whereby and whereundet' an amount of Rs. 1,07,122/- alongwith interest @ 6 percent per annum has been awarded as compensation in favour of the appellant. The brief facts of the case |according to appellant are that, on 19-02-2007 when the appellant was going on his Moped along with his brother from Gadabhata, near Akalwara turnlng, the appellant met with an accident by bus bearing registration No. CG-07/E-0115 due to rash and negligent driving ofthe bus Driver, and pursuant to said accident sustained grievous injuries. .rf'CTS8sfe. .,?/r.-'s' "•'^ 1^ ?••. Xi-HC—78 ~^^~ '^T^T^T^ ^T'IK-i^)^^ N).A C^) ^o.S'S aNwqgrC N) OTt'STOt?sri3r ?i«ii«rCT3Tciw TOIIWi: ^RfRt STRn •SiT'iltwN •WqHt'Tt'fei^ ^RnZTC ^affroan^! The appellant preferred anjapplication before the Tribunal under Section 166 of the Motor Vehicles Act, claiming compensation to the tune of f^s. 9,50,000/- for the injuries sustained by him on account ofthje said accident. The Tribunal, on a close ^crutiny of the evidence led by the parties, the material av^llable on the record, and submissions of the parties, a^/arded total amount of Rs. 1,07,122,/- as compensation in fa Shri Gulati, learned counse 1/our of the appeliant. for the appellant would submit that although the Doctor has notjbeen examined in this matter, but looking to the fact that the| appellant sustained grievous injury, and amount awarded isjshocking on lower side, this appeal may be ailowed and the c^impensation be enhanced. i have heard the learned counsel appearing for the i appellant and perused the record. The Supreme Court in caste of A.P. SRTC v. P. Thinipal Reddy, reported in (2005) 12 SCC-189, observed in para 6 as under: "6. After hearing learned counsel for the respondent- claimant who made an attempt to support the order of the High Court. We find that there was no justification for the Hjgh Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permahent disability to be 45 per cent. The High Court pommitted gross error in f-c XI-HC—78 '3%T -^MW-'-',, W-AwW, hwwy ^ ACc) ^6.5^ .......................-.......................^.^ ^ 3nwiii°w(^(^<q) 3irai^'f"nai Tiqi 311^1 gi^R; TOnaniripisn^i •?> 'aBrafwfrr iimgf-^ fe%t •ffsttpx ^a.iRnsi'^f overlooking the fact that Dr. $udhakar Reddy's medical certificate was rejected by| the Tribunal for non- examination of that doctor. Ttfe Tribunal has determined the physical disability at 15 p^r cent on the basis of the deposition of Dr. K.M. Mitra a|id awarded a just and fair compensation. The High Cojurt erred in disturbing the same and enhancing the conlpensation. Consequently, we allow this appeal, set asic^e the impugned order and restore the award of the respondent-claimant is allowec) to withdraw the amount of compensation awarded by tljie Tribunal, if it has not already been withdrawn." The Supreme Court in a Kumar alias Raju v. Yudhvir (2008) 7 SCC 305, reiterated th^ observations in para 11 : Claims Tribunal. The re4ent dictum in case of Rajesh Si^igh and another, reported in same view with the following "11. The certificate in questioh in this case was obtained after two years. It is not kndwn as to whether the Civil Surgeon of the hospital treattd the appellant. On what basis, such a certificate was lissued two years after the accident took place is not knoyi/n. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provjsions of the Workmen's Compensation Act or otherwise is not known. It is also 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 eith6r been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the & 4- XI-HC—78 .37^ %T f^t^ •aqian'&iww •3^-3w^,, ^tws, tNwcy r^c) c.c,j,,iyb.^.3,s^ 15? ^ (^nw^rfstww (<- Workmen's Compensation ^ct which, in our opinion, ex facie has no application, th^ same, in our opinion, cannot be permitted to be raised forjthe first time." s A Division Bench of this j-ligh Court in case of Pradeep KumarSahu vs. Sarupa Sahu |6 anothervide order dated 31st March, 2009, piacing its reliande upon the dicta of Supreme Court in the cases referred abov^ held in para 8 as under: "8. In view of the above q(ioted dicte of the Apex Court in the cases of A.P. SRTC ^ P. Thlrupal Reddy (supra) and Rajesh Kumaralias f^afu v. Yudhvir Slngh and another (supia), the certiflcate produced before the Tribunal in the absence of! examination of the Doctor issuing the certificate is neith^r admissible in evidence nor can be taken into consideration as substantive evidence for assessment ofthe compeilsation in the case." In a motor accident claim c^se, as per Section 168 ofthe Motor Vehicles Act, 1988, what is important is that the compensation to be awarded by the Courts/Tribunal should be just and proper compensation in ihe facts and circumstance of each case. It is neither a bounty nor charity. For the reasons mentioned hereinabove, I do not flnd any scope for enhancement of the compensation awarded by the Trfbunal. '--/-: "3ST •^l<ilCT<1, 8)Tily4|(o, fawi'M'J,< . r^ ^ Ct) ^. ^3^ ^ z"?-. f5i^ 'q^? (.'CP n' . 'Rniw^taan^; ^ i? The appeal filed by the apjpellant for enhancement of the compensation is therefore liable No order as to costs. to be and is hereby dismissed. SdA N.K. Agrawal Judge