Bahru Yadav v. Narendra Sahu

S.B. Hon'ble Shri Justice 2S.08.2009 N.K. |A<aarwal Shri AS Iqubal, Advocate f^rthe appellant. Heard on IA No. 1 , applica) On due consideration, Hon forcondonation ofdelay. appellant is succeeded Sn explai^iing the delay caused in filing this appeal. Accordingly IA No. 1 is jallowed and delay caused in filing 1 ^m satisfied that the counsel the appeal is hereby condoned. The instant appeal has |>een preferred by the appellant, seeking enhancement of comp^nsation against the award dated 22.12.2008, passed by IVth Add|. Motor Accident Clalms Tribunal, (FTC), Raipur in claim case No. 48/08, whereby and whereunder an a|nount of Rs. 29.000/- alongwith interest @ 6 percent per 4nnum has b®®"awarded as compensation in favour ofthe ap|>ellant. (for short Tribilinal') The brief facts of the cs^se are that, on 28.C©.2006, the appellant met an accident with Metador bearing registration No. CG-04/J-5215 due to rash and Driver, and pursuant to said accident sustained injuries. negligent driving of the Metador The appellant preferred ah application before the Tribunal claiming under Section compensation to the tune of | Rs. 8,80,000/- sustained by him on account of s?id accident. -——— the [Motor Vehicles Act, the injuries 166 of 1 ' "'^ ^^Sjm. I I-HC—78 -g-^ ^rrJTrFTO, ^ft^FT^, f^TRry NW^ST ^W^ •-e^ 200' a^TT^^(^^sr) W^^^I'f^TN' ??STT oT^T ^i^ WTfW^fN W^I "RT^ ^N^Nh ^' ft^l'if^R. -^^tiW^?^T The Tribunal, on close s4rutinyof the evidence led by the parties, the material available <^\ the record, and submissions of the parties, awarded total amour^t of Rs. 29,000/- as compensation infavouroftheappellant. | Shri Iqubal. counsel for jthe appellant would submit although the Doctor has not b^en examined in this matter, but looking to the fact that the appe|ant sustained gravious injury, and amount awarded is shocking o|i lower side, this appeal may be allowed and the compensation b ^ enhanced. 1 have heard the learned (^ounsel appearing for the appellant and perused the record. The Supreme Court in c^se of A.P. SRTC v. P. Thirupal Reddy, reported in (2005) 12 under: ^CC-189, observed in para 6 as "6. After hearing learnecj counsel fiie respondent- claimant who made an att^mpt to support the order of the High Court. We find that t|iere was no justifieation for the High Court to rely on the djsability certificate issued by Dr. Sudhakar Reddy and enhar|ce the compensation by treating the injury as permanent di$ability to be 45 per cent. The High Court committed gross|error in overlooking the fact that Dr. Sudhakar Reddy's medi^al certificate was rejected by the Tribunal for non-examinatidn of that doctor. The Tribunal has determined the physica| disability at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. Th^ High Court erred in disturbing the same and enhancing th^ compensation. Consequently, we allow this appeal. set jaside the impugned order and restore the award of the Cltiims Tribunal. fhe respondent- r; ¥~F '3"^[ ^PT?^[7T, ^cJt^PTS/'f^iRT^I ^WRIT^W^ •^200 ^?i' 1r^r (1j?;if3^^> aTr^l.^T f^hr ^^fT 3Tf^T^"RJ^' ^^R^ifeT^T^T ^N^fl^r -m^f ^ fe^ 'I^IZR '^^fOT-%7T^r 1 claimant is allowed to withdr^iw the amount of compensation awarded by the Tribunal, | it has not already been withdrawn." The Supreme Court in a |-ecent dictum in case of Rajesh Kumar alias Raju v. Yudhvir jSingh and another, reported in (2008) 7 SCC 305, reiterated ^he same view with the following observations in para 11 : It "11. The certificate in qu< Son in this case was obtained after two years. is not lown as to whether the Civil Surgeon of the hospital ited the appellant. On what basis, such a certificate issued two years after the accident took place is not lown. The author of the said certificate had not been exar lined. Unless the author of the certificate examined him< it was not admissible in ijlity at 60% was calculated on evidence. Whether the dis the basis of the provisions the Workmen's Compensation Act or otherwise is not kno\ It is also not known as to whether he was competent jto issue such a certificate. It even does not appear that tljie contentions raised before us had either been raised befor^ the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought 4" record by the parties. In absence of any contentton llaving been raised in regard to the applicability of the Workrjien's Compensation Act which, in our opinion, ex facie has ^to application, the same, in our opinion, cannot be permitted ^.o be raised for ttie firsttime." A Division Bench of this |High Court in case of Pradeep Kumar Sahu vs. Sarupa Sahu\ & another vide order dated 31st March, 2009, placing its reliancej upon the dicta of Supreme Court in the cases referred above held in para 8 as under: -HC—78 3^7 ~ 'f^N' ^"T 7Tm 3TT^r ^'^hF ^i^K-i^ ^Tii^4t^, t^rray MWWt ^W^ •Wt 200 S^ ^WF (^f^^: %^f^H-RT^ ^ ft^ Tf^K ^ ^it^T "8. In view of the above q^oted dicta of the Apex Court in the cases of A.P. SRTC v. /f. ThSmpal Reddy (supra) and Rajesh Kumar alias Raju v| Yudhvlr Singh and anothw in the (supra), the certificate produ^ed before the Tribunal absence of examination of tl^e Doctor issuing the certificate is neither admissible in evittence nor can be taken into consideration as substantive ^vidence for assessment of the compensation in the case." In a motor accident claim ^ase. as per Section 168 of the v^hat Motor Vehicles Act, compensation to be awarded by ^\e CourtsfTribunal should be just and proper compensation in thej facts and circumstance of each case. It is neither a bounty nor ctlarity. is important is that 1988, For the reasons mentione^l hereinabove, 1 do not find any scope for enhancement of the compensation awarded by the v •^ Tribunal. The appeal filed by the appellant for enhancement of the compensation is therefore liable t^) be and is hereby dismissed. No order as to costs. Sahu Sd/- N.K. Agrawal Judge