High Court · 2009

S.B. Hon'bie Shri Justice N1 Shri Aditya we, Adv^cate for appellant. Shri Ghanshyam Patel, Advocate for respondent No. 3. Heard on M(C)P No.l^i 85/04, application for condonation of delay in flling the appeal. On due'consideration, am satisfied that the counsel for appellant has succeeded in ^xplaining the delay caused in filing this appeal. Accordingly 1V|(C5P No.1885/04 is aliowed and delay caused in filing the app •ai is hereby condoned. Heard on admission. The instant appeal 'na^ seeking enhancement of con^

01.04.04, passed by the Istj Tribunal Raipur (for short 'he been preferred by the appellant, jpensation against the award dated Additional Motor Accident Clairns 'Tri|)unai') in elaim case No. 102/03. brief facts of the c^se according to appeliant are that, on 27.06.03, Driver of Met^ dor, bearing registration No. r'-f^1 <-»1-1- 04/ZB-0836, dashed the ap,4eilant, due to which t'ne appellant sustained injuries. The appellant preferre^i an application before the Tribunai claiming IVIotor Vehicles Act, under Section 166 of compensation to the tune |3f Rs. 5,20,800/- sustained by him on account |3f the said accident. for the injuries !frt! ?&^T^:I/TTrt^r'b-^*^l"^fl?F~^1y*-'1^ ^nh^ ?"+fc? ^ ~;i- ^ 1N: i 'S^t '^M\vt^, a-nlwis, Roni'yy ,..^WV..-.-.(-.3'2.^..-....-.... 3>3'^"-"---^200/^ 3il^iT5R:r('^3^?) !<-ii+ ^I sft*f[«h wnw^ftaw^i -2. *l<il<>f4l'< *iiwff 'if test <F»i<«;i( ^aiRmat!^ Fhe Tribunal, on a clo^e scrutiny of the evidence led by parties, the material available on the record, submissions of the partie^ 25,000,/- as compensation in Shri Khare; learned jsounsel the appeiiant would favour of the appellant. awarded total amount of Rs. submit Shat although the Docjtor has not been examined in this matter, but looking to the j[act the appellant sustained grievous injury, and amount ^warded is shocking on lower side, this appeai may be allowed ai|id the compensation be enhanced. i have heard the le^rned counsel appearing for appeiiant and perused the recjord. The Supreme Court in ^ase of A.P. SRTC v. P. Thirupa! Reddy, reported in (2005) 1^ SCC-189, obsen/ed in para 6 as under: "6. After hearing learn^d counsel for the respondent- claimant who made an at^empt to support the order of the High Court. We find that]there was no justification for the High Court to rely on the pjsability certificate issued by Dr. Sudhakar Reddy and ^nhance the compensation by treating the injury as pq-manent disabiiity to be 45 per cent. The High Court conlmitted gross error in overlooking the fact that Dr. Sudhakaf Reddy's medical certificate was rejected by the Tribun^l doctor. The Tribunal | has determined the physical dlsability at 15 per cent <?n the basis of the deposition of Dr. K.M. Mitra and awardjed a just and fair compensation. The High Court erred | in disturbing the same and enhancing the compens^tion. Consequentty, we allow this appeal, set aside the|impugned order and restore the for non-examination of IG—78 TSf •^l^llci^, iStfl'M'is, Rwwy <n*TCtI tb*1tt»» ^^..MA^..........l3,^........... "f s^v f^; (lic<U'*<^) .N^!^Bl1yiW ^S^ St)H ^smn^fCTSi^r -? «hl»li<-f4)-lMltltA' 4 ft^tf*it<l< ^affin-ait^ award ofthe Claims Tribilinal aiiowed to withdraw the ^noi by the Tribunal, if it has The respondent-claimant is ^nount of compensation awarded n|3t already been withdrawn." The Supreme Court in Kumar alias Raju v. Yudhvf (2008) 7 SCC 305, reiteratei|l ^ recent dictum in case of Rajesh fr Singh and another, reported in the same view with the followinc observations in para 11; "11. The certificate in qu^stion in this case was obtained tt is no( known as to whether the Civii after two years. Surgeon of the hospital (reated the appeilant. On what basis, such a certificate ^vas issued two years after the accident took place is no< known. The author of the said certiflcate had not been 4xamined. Unless the author of the certificate examined jiimseif, it was not admissible in evidence. Whether the (Jisability at 60% was calculated on the basis of the Workmen's Compensation Act or oth|erwise is not known. It is also not known as to whether (ie was competent to issue such !t even doesj not appear that the contentions a certificate. raised before us had ^ither been raised before the Tribunal or the High Cour(. The Tribunal as also the High Court, therefore, proceed^d on the materials brought on |ln absence of any contention record by the parties. having been raised in r^gard to the applicability of the Workmen's Compensatio(i Act which, in our opinion, ex facie has no application, 1f~\e same, in our opinion, cannot be permitted to be raised (or the first time." brovisions of A Division Bench of thi^ High Court in case of Pradeep ! Kumar Sahu vs. Sanipa Sa/ijy & snothervide order dated 31st March, 2009, placing its reli^ince upon the dicta of Supreme Court in the cases referred ab^ve held in para 8 as uVider: ••'r-w a^igjj^i,aa^(^ig^aaatiai^'is"a!L<tiiw"5:i*"®'i^t"i^.^L3^a<? —-h,ii .s-.y'-"" !,^ .'";a.: :'. \ | : ^^.^—78 || 1%Slsi|, 1:1^., ~?ST'^TF?RPT, ®ttl'M<16,l««ni-H^< *<IHW! 9>Ntt(»""'"" '""'"" ""WI. 200 SII^T irag? (•ipfg^r) R-ii'* n%'%R?iwTOt ?<W8R^ltel3i!^I '^plfepftf WRcff if 1WSt ^^(OT3I!^iT '<Ffl«(K "8. In view of the aboVe quoted dicta of the Apex Court in thecases of A.P. SRfC v. P. Thirupal Reddy (supra) and Rajesh Kumar aliTps Rafu v. Yudhvir Singh and the |;ertificate produced before the another .......TfilitiFfeBn the absencfe of examination of the Doctor ^ ;;iiss{flng(it8e certificate is rjeither admissibie in evidence nor ; can'be".ttken into consitleration as substantive evidence ,. .forasges^ment ofthe co|npensation in the case." (supra), . • ,. ...In a^^pr accident ci^im case, as per Section 168 ofthe Motor Vehicles Act, 1988) what important is that compensation to be awardeig by the Courts/Tribunal should be just and p.roper compensaticjn in the facts and circumstance of each case. It Is neither a boijnty nor charity. For the reasons mentitjined hereinabove, 1 do not find any scope for enhancement of |he compensation awarded by the Tribunal. The appeal filed by th^ appellant for enhancement of the compensation is therefore lisjble to be and is hereby dismissed. No order as to costs. ») - J Sd/- N.K. Agrawal Judge