THE fflGH COURT OF CHHATTISGARH AT BILASPUR :y t)'l c- \^ ^•f v. NON

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^ •B'ln'F TiqT 3ITOT '^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/- along with 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 of the 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 claiming under Section 166 of the Motor Vehicles Act, f^s.

9,50,000/- for the injuries compensation to the tune of sustained by him on account ofthje said accident. The Tribunal, on a close ^crutiny of the evidence led by the material av^llable on the record, the parties, a^/arded total amount of Rs. the parties, submissions of 1,07,122,/- as compensation in fa 1/our of the appeliant. Shri Gulati, learned counse for the appellant would submit that although the Doctor has notjbeen examined in this matter, looking to the fact injury, and amount awarded isjshocking on lower side, the| appellant sustained grievous appeal may be ailowed and the c^impensation be enhanced. i have heard the learned counsel appearing for 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 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 rejected by| the Tribunal overlooking the fact that Dr. $udhakar Reddy's medical for non- certificate was 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 The respondent-claimant is allowec) to withdraw the amount of it has not compensation awarded by tljie Tribunal, already been withdrawn.

" Claims Tribunal. The Supreme Court in a re4ent dictum in case of Rajesh Kumar alias Raju v. Yudhvir Si^igh and another, reported in (2008) 7 SCC 305, observations in para 11 : reiterated th^ same view with the following "11. The certificate in questioh in this case was obtained It is not kndwn as to whether the Civil after two years. 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 the Workmen's the provjsions of on the basis of It is also Compensation Act or otherwise is not known. not known as to whether he was competent to issue such It even does not appear that the contentions a certificate. 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 In absence of any contention record by the parties. having been raised in regard to the applicability of the & 4- 15? XI-HC—78 •3^ -3w^,, ^tws, tNwcy r^c) c.c,j,,iyb.^.3,s^ ^ .37^ %T f^t^ •aqian'&iww (^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 the certiflcate produced before the (supia), 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 of the compeilsation in the case.

" In a motor accident claim c^se, as per Section 168 of the Motor Vehicles Act, 1988, what is important is that 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. '--/-: n' . -r "3ST •^l<ilCT<1, 8)Tily4|(o, fawi'M'J,< . r^ ^ Ct) ^. ^3^ z"?-. f5i^ ^ 'q^? (.'CP 'Rniw^taan^; ^ i? The appeal filed by the apjpellant for enhancement of the compensation is therefore liable to be and is hereby dismissed. No order as to costs. SdA N.K. Agrawal Judge