Claimant v. Mohammad Baseer Ahmad

Ravi Masih, aged 18 years, Son of NON-CLAIMANTS Subhash Masih, R.o. Tatibandh, P.S. Amanaka, Raipur, Tahsil and District Raipur (C.G.)

Manish Bhardwaj, aged about 21 years, Son of Vishnu BhardwajX/o. Mahadev Ghat Road, Raipura, P.S. Amanaka, Raipur, Tahsil and District Raipur (C.G.) Miscellanceous Appeal under Section 1 73 of the Motoj: Vehicle Act, 1994 )C—78 "3%; rt||<,lf?|.j. Biflifl<|!e^ f^R:TR?y _.__ M ACc) . /3 63 2007 w<?i'ti^?('rt^i; TO3ii'fnN; wswnwflw vsnw •sft'r s]?»?i wqwN •wreft'if fs^t t^^ ^aifTOSil^r

S.B, Hon'bte Shri Justice Wti Aaarwal 28.10.2009 | Shri Aditya Khare, Advocjate for appellant. Heard on IA No. 1 , applijsation for condonation of delay in fiting the appeal. On due consideration, I |am satisfled that the counsel for appellant has succeeded in exj)lalnlng the delay caused in filing this appeal. Accordingly IA Ni|». 1 is allowed and delay caused in filing the appeal is hereby cc^idoned. Heard on admission. The instant appeal has |been preferred by the appellant, tensation against the award dated seeking enhancement of compjer 27.04.2009, passed by the Istj Tribunal Raipur (for short 'Tribijinal') in claim case No. 20/07. Additlonal Motor Accldent Ctaims The brief facts of the ca^e aceording to appellant are that, on 18.08.06, oneMotorcycle bearing registration No. CG-04/GH- 5^9 dashed the appellant and pursuant sustalned grievous injuries. to said accident The appellant preferred an application before the Tribunal the Motor Vehteles Act, claiming under Section 166 of compensation to the tune of Rs.

9,50,00/- for the tnjuries sustained by him on account ofthesaid accldent. IUJ.ji..WJ^L.^...-. WSW1W.tW *, ^CrTST^LI^HT^I?] -4-5- ^5; TViWW-i. ^WW','i, V WH<?(( a>*ii<*» M,/\ Ct*> ^0' l^i>3/ 7 -W^T'SiW l, St'B SffCT -S Wl'WJNllTERff fe^ ^;3ffif(3I!^! The Tribunal, on a clos^ scrutiny of the evidence led by parties, submissions of the material the parties, ^vailable on the record, and awarded total amount of Rs. 16,WQ,f- as compensation in fajvour of the appellant. Shri Khare, learned ci^unsel for the appellant would submit that although the Doctcjr has not been examined in this looking to the fsipt matter, but grievous injury, and amount aw| iarded is shocking on lower side, this appeal may be allowed anc(the compensation be enhanced. the appellant sustained 1 have heard the leari^ed counsel appearing for the appellant and perused the reco(d. The Supreme Court in c^se of A.P. SRTC v. P. Thlrupal Reddy, reported in (2005) 12 6CC-189, observed in para 6 as 1 under: "6.

After hearing learnec^ counsel for the respondent- claimant who raade an attempt to support the order of the Hjgh Court. We find that there was no justification fpr the High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as perrtianent disabilfty to be AQ per cent. The High Court committed gross error in overiooking the fact that Dr. Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examinationof ttiat doctor. The Tribunal has detemiined the physfcal disability at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awardeda just and fair compensation. The High Court erred in disturbing the samis and enhancing the compensation. Consequently, we allow Uiis appeal, setaside the impugned order and restore the ^*^" XI-HC—78 lsn^i^it?';iw j W sw\ 'iS'W"! ^^ XI-HC—78 •s^ -4i-4i~!<!, ^Ttiy're, iqnwK _^.....^..P'LC-.)...'M.0..;...'..^...^.3./. svTSf 'VR; tf.^y^'y) [~-s^\ v. 'fetN •flitl siT^i •g^N? TOTIWWtSiRTi •^ratwN im?if-ii •fs'zt •dw?n ^aifima.n^i award of the Ctaims allowed to withdraw the by the Tribunal, if it has no^ Tribu^al.

The respondent-claimant is an^ount of compensation awarded |already been withdrawn. " The Supreme Court in a recent dictum in case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, observations in para 11 : reiterated |lhe same view with the following "11. The certificate in que^tion in this case was obtained after two years. It is not |<nown as to whether the Ch/il Surgeon of the hospital tr^ated the appellant. On what basis, such a certificate w^s issued two years after the accident took place is not ^nown. The author of the said certificate had not been e)4amined. Unless the author of the certiflcate examined hi(nsetf, it was not admtssible in evidence. Whether the di^ability at 60% was calculated on the basis of the Workmen's the ptoYisions of Compensation Act or othe^wise is not known. It is also not known as to whether he was competent to issue such It even does liot appear that the contentions a certificate. raised before us had eillher 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 Workmen's Compensation 'Act which, in our opinion, ex facie has no applicafion, the same, in our opinion, eannot be permitted to be raised for the first time. " A Dlvision Bench of this High Court in case of Pradeep Kumar Sahu vs. Sanipa Sahu & another vide order dated 31 Mareh, 2009, placing its reliance upon the dteta of Supreme Court in the cases referred aboye held In paraSas under: s S%3A<< ' XI-HC—7S 3'sif •^nm*'., di'nt^'is, fojc'tK-iy .MA.c^)..:.i—,/363, aTI^! tyg^ (lpfg3R|t]i) ^ OT^i'CT'RpiNi ?qi »n^?iaww 4- wnw^rfp'aRW wfet^r •tfnHt' ^ fyet- Tfare^: ^s "8. In view of the abov^ quoted dicta of the Apex Court in the cases of A.P. SRTp v. P. Thirupal Reddyfsupra) and Rajesh Kumar alia^ R^u v. Yudhvir Singh and another (supra), the c^riificate produced before the Tribunal in the absencelof examination of the Doctor issuing thecertiflcate is n^ither admissible in evidence nor can be taken into consid^raUon as substandve evidence for assessment of the con(pensation in the case.

" In a motor accident claifn case, as per Section 168 of the Motor Vehicles Act, 1988,|what is important is that compensation to be awardedjby the Courts/Tribunal should be just and proper compensatiort in the facts and clrcumstance of each case. It is neither a boui|ity nor charity. For the reasons mentiofied hereinabwe, 1 do not find any scope for enhancement of the compensation awarded by the Tribunal. j The appeal filed by thej appellant for enhancement of the compensation is therefore liable to be and is hereby dismissed. No order as to costs. I Kvr gdf- N.K. Agrawal Judge ^,r^- t^^3^^^^:f^ ^