Kahara, Tilakram v. Langure Prasad Yadav & Ors.

Tilakram Shri Kekaruram Kahara, aged about 35 years, R/o. Village- Mohtara, Post- Devgaon, Tahsil and P.S. Masturi, District Bilaspur (C.G.) VERSUS Langure Prasad Yadav, S/o.Maniram Yadav, aged about 20 years, R/o. P.S. Village- Misda, Nawagarh, District Janjgir-Champa (C.G.) Tahsil Maniram Yadav, S/o. Ramlal Yadav, R/o. Village- Misda, Tahsil & P.S. District-Janjgir-Champa Nawagarh, (C.G.) India Insurance Company United Limited, Through : Branch Manager, Nagar Branch Chowk, Tahsil and District Bilaspur (C.G.) Rajendra Office, CLAIM BEFORE THE TRIBUNAL AWARD AMOUNT VALUATION OF THE PRESENT APPEAL Rs.4,65,000/- Rs. 20;000/- Rs. 25,000/- (In the present appeal grievous injuries) seeking compensation the appellant towards MISCELLANEOUS APPEAL U/S. 173 OF THE MOTOR VEHICLE ACT. 1988 leutn- R.3 -i- »»'-XI-HC—78 'S^t ^WW-i, •SVWW, \^v\^,^i. ..M^^.......J.&..7-, "v^ioog siT^r '^^? ("yf^^) srr^! -^T fTajs; ?iai siTtn-a?!?N^ TWiwofCT %'Ri ^NwNiiiiRti •irfs^l'-tfti^n ^sffm.OT^i S.B. Hon'ble Shri Justice N.KL Aaarwal 28.10.2009 Shri Gautam Khetrapal, ^dvocate for appettant. Shri Pankaj Agrawal, Ad'jrocate for respondent No. 3. Heard on admission. The instant appeal has [been preferred by the appellant, seeking enhancement ofcom| insation agalnst the award dated 04.05.2009, passed by the Is^ Motor Accident Claims Tribunal Bilaspur (for short 'Tribunal') in[claim case No. 67/08. The brief facts of the ca^e according to appellant are that, on 16.10.^)07, while the a^pellant was going from village Fakirda to Parsada, one Tra^tor bearing registration No. CG- 11 /A-1770 dashed the appellaijit, sustained tnjuries. The appellant preferred jan application before the Tribunal the| Motor Vehicles Act, ciaiming under Section 166 of compensation to the tune pf Rs. 4,65,000/- for the injuries sustained by him on account ofthe said accident. The Tribunal, on a close scrutiny of the evjdence led by the parties, submissions of the material available on the record, and the parties, awarded totat amount of Rs. 20,000/-ascompensationin tevour ofthe appellant. Shri Khetrapal, learned counsel for the appellant would submit that although the Doctor has not been examined in this \ • -(- XI-HC—7S T^ '^'TRR^, 'S^fRPTS, FqMI'f-y ^.........^^... awi*i I^T. (' *nt?i -3FT i^r'1; •gfljg? •3V, 311^1 Tsnw ^ft'i snni •^l wNwfl;r ima! if fs^ '(fe?K ^siRmsn^i matter, but looklng to the f^ct the appellant sustained grievous injury, and amountai^arded is shocking on lower slde, this appeal may be allowed an«|the compensatlon be enhanced. 1 have heard the lear(ied counsel appearing for the appeltant and perused the recdrd. The Supreme Court in c^ase of A.P. SRTC v. P. Thlrupal i Reddy, reported in (2005) 12 under: SCC-189, observed in para 6 as "6. After hearing leame^l counsel for the respondent- claimant who made an att^mpt to support the order of the High Court. We find that tjiere was no justification for the High Court to rely on the d|sability certificate issued by Dr. Sudhakar Reddy and e(ihance the compensaUon by treating the injury as perjnanent disabitity to be 45 per cent. The High Court comijiittBd gross error in overlooking the fact that Dr. Sudhakar Reddy's medical certificate was rejected by the Tribunal The Tribunal has determined the physical doctor. disability at 15 per cent od the basis of the depos'rtion of Dr. K.M. Mitra and awarded a justand faircompensation. |in disturbing the same and The High Court errwl enhancing the compensapon. Consequently, weallow this appeal, set aside the jmpugned order and restore the award ofthe Claims Tribunal. The respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn.° fbr non-examination of The Supreme Court in a recent dtetum in case of Rajesh Kumar alias Itoju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, oteervations in para 11: | reiterated the same vlew with the following Ll^% ^:f~'^ 3RB-a -F '3^ 'siTsrRTT, ©Tli'M'!®, 'f^?TR3y fea,....K^C........S^.l:, WWP^ ( .+fT^i'3^ '^H^r TSI 3!!^| wmsT TOnw^tCTsnt?; WTCtf'q'TS'st' ^affipran^r "11. The certificate in que^Uon in this casewas obtained It is not |mown as to whether the Civil after two years. Surgeon of thehospital tr^ated the appellant. On what basis, such a certificate w(as issued two years after Uie accident took place is not fcnown. Theauthor of the said certificate had not been eifamined. Unless the author of the certificate examlned hitnself, it was not admissible in evidence. Whether the d(sability at ®)%was calculated the p|rovisions of on the basis 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 e(her been raised before the Tribunal or the High Court.j The Tribunal as also the High Court, therefore, proceedejrf on the materials brought on Ifi absence of any contention record by the parties. having been raised in re^ard fc> ttie applicabllity of the Workmen's CompensationfAct which, in our opinion, ex facie has no applicaGon, thje same, in ouropinion, cannot be permitted to be raised f4r the firet time." A Division Beneh ofthisi HighCourt in case of Pradeep 1 Kiimar Sahu vs. Sanipa Saha & anotftervide order dat«l31 March, 2009, placingits reliance upon the dicta of Supreme Court in the cases referred above held in para 8 as under: "8. In view of the above quoted dicta of the Apex Court in the cases of A.P. SRTCv. P. Thlrupal Reddy (supra) and Rajesh Kumar alias Raju v. Yudhvlr Singhand the certificate produced before the another (supra), Tribunal in Vne absenee of examination of the Doctor issuingthe certificate is neither admissible in evidence nor can be taken into consideration as substantiveevidence for assessment ofthe compensation in the case." ••^^Y ,Ea |£a;-.i.jai li^.i.'iil -HC—78 '::q?3?I^?T(. 75) (iTfty'l'i, fSRTO^ @ ..fcA^-.......^>2... STRSI'^Fl- 3TT^ ?TT t^tiF ^^\ sn^i'^H^' wnwwpTs?CT —q wqfwN'wwff if *yzt ^f^Tt iTaffinsn^i Motor Vehicles Act, 1988, In a motor accident clairr^ case, as per Section 168 of the Iwhat compensation tobe awarded l|)y the Courts/Tribunal should be just and proper compensation |in the facts and circumstance of each ease. It is neither a bounty nor charity. is important is that For the reasons mention^d herelnabove, 1 do not find any scope for enhancement of th^ compensatlon awarded by the Tribunal. The appeal filed by the fappellant for enhancement of the compensation is therefore liab|e to be and Is hereby dismissed. No order as to costs. j g^ N.K. Agrawal Judge Kamde!