DIVISION BENCH v. Girish Kumar Chaudhary

ORDER ^th (12InApril,2012) MAC.No. 1150 of 2009 ^ The following order of the Court was passed Rajeev Gupta, C.J. This claimant's appeal for enhancement of compensation awarded by the Motor Accident Claims Tribunal, Raigarh (for short, 'the Tribunal') vide award dated 15.05.2009, passed in Claim Case No.77 of 2008. ^^^.~ 2) As against the compensation of Rs.52,50,000/- claimed by claimant Ankit Agrawal, aged about 16 years by filing a claim petition under Section 166 of the Motor Vehicles Act through his father Poonam Chand Agrawal for the injuries sustained by the claimant in the motor accident on 04.10.2007, the Tribunal awarded a total sum of Rs.40,500/- as compensation along with interest @ 8% per annum from the date of filing of the claim petition till the date of actual payment. 3) The Tribunal on a close scrutiny of the entire evidence led before it held that claimant Ankit Agrawal sustained multiple serious injuries in the motor accident on 04.10.2007; the accident occurred due to the negligence of the claimant himself and that of the motorcyclist the motorcycle bearing registration No.C.G.13G/6261; the negligence of the claimant and the other motorcyclist was to the extent of 50% each; as the above motorcycle on the date of the accident was insured with the United India Insurance Company Limited and the Insurance Company could not establish any breach of the policy conditions, M.A.C.No.1150of2009 ^> the Insurance Company was liable to pay 50% of compensation assessed to the claimant. 4) The Tribunal considering the number and nature of the injuries proved to have been sustained by the claimant in the motor accident and the amount proved to have been spent on treatment, awarded Rs.71,000/- towards medical expenses, |gingi^ suffering. The Tribunal, thus, assessed attendant, special diet and conveyance; and Rs. 10,0007- for pain compensation at Rs.81,000/-. As the claimant was held responsible for the accident to the extent of 50%, the insurer of the motorcycle was directed to pay 50% of Rs.81,000/- i.e. Rs.40,500/- as compensation to the claimant for the injuries sustained by him in the motor accident. The Tribunal further directed payment of interest amount of compensation of Rs.40,500/- @ 8% per annum from the date of filing of the claim petition till the date of actual payment. 5) Shri Vipin Punjabi, learned counsel for the appellant placing reliance on the dictum of the Apex Court in the case of Sudhir Kumar Rana Versus Surinder Singh and Others, reported in (2008) 12 SCC 436, vehemently argued that the Tribunal has erred in holding that the claimant also equally contributed to the accident; in assessing the total compensation at Rs.81,000/- only; and in awarding low compensation of Rs.40,500/- only. 6) Shri Dashrath Gupta, learned counsel for respondent No.2, the United India Insurance Company Limited, the insurer of the motorcycle, on the other hand supported the award and ^ f / S ^^..^Ss" ^ .^.. J M.A.C.No.1150of2009 ^ contended that the compensation of Rs.81,000/- assessed by the Tribunal and Rs.40,500/- awarded to the claimant are just and proper compensation in the facts and circumstances of present case. 7) Shri R.S. Patel, learned counsel for respondent No.1 Girish Kumar Chaudhary, the owner-cum-driver of the motorcycle also supported the award. 8) So far as the finding recorded by the Tribunal holding that the claimant also equally contributed to the accident is concerned, the two vehicles involved in the accident are motorcycle and TVS Moped. The claimant at the time of the accident was driving TVS Moped whereas the motorcycle was being driven by respondent No.1 Girish Kumar Chaudhary. According to the spot map (siteplan) which is available in the Tribunal's records, both the vehicles at the time of the accident were in the middle of the road. It is day-time accident. Claimant Ankit Agrawal was aged about 16-17 years only. His father has categorically admitted that the claimant was not holding any driving license at the time of the accident. 9) In the above factual scenario, we do not find any infirmity in the finding recorded by the Tribunal holding that the claimant himself also equally contributed to the accident. 10) Now, weshall examine as to whether the compensation of Rs.81,000/- assessed by the Tribunal is inadequate so as to warrant enhancement in this appeal. .'..;"''^:- -'^ ./ ^ M.A.C.No.1150of2009 ^ 11) Claimant Ankit Agrawal was aged about 16-1 7 years on the date of the accident. He was a student of 9th standard and admittedly was not having any independent income. The bills and vouchers produced by the claimant before the Tribunal in regard to the medical expenses were to the extent of Rs.55,548/- and the Tribunal has awarded this total sum of Rs.55,548/- towards medical expenses. 12) Though the claimant before the Tribunal produced the disability certificate Ex.P29 certifying the claimant's disability at 40%, for the reasons best known to the claimant and hjs father, the doctor who had issued the certificate was not examined before the Tribunal. 13) The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence the assessment of compensation consideration before the Apex Court in the case of A.P. SRTC v. P. Thirupal Reddy, reported in (2005) 12 SCC 189, wherein it was 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 High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 per cent. The Hiah Court committed aross error overlookina the fact that Dr. Sudhakar Reddv's medical certificate was reiected the Tribunal for non- k ,€ '^.. ^^w^ /^,.. •^•^m rw-:^j •'^"••:.y .y' ,...^^ M.A.C.No.1150of2009 k ^ examination of that doctor. The Tribunal has determined the phvsical disabilitv at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a iust and fair comDensation. The Hiah Court erred in disturbina the same and enhancina the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, it has not r already been withdrawn." 14) The Apex Court in a recent dictum in the caseof Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11 : "11. The certificate in question in this case was It is not known as to whether the obtained after two years. Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. 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 on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either 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 Workmen's Compensation Act which, in our opinion, ex ^^^^'^ '^"^""'^^ .^^. '"'• >: jl :^^??Nfe, i ^ ^s^-^'^^^ ^' ?l -8®. M.A.C.NO. 1150 of 2009 ^ facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time." 15) The disability certificate produced by the claimant, in view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thirupal Reddy (Supra) and Rajesh Kumar alias Raju v. Yudhvir Singh and another (Supra), cannot be taken into consideration for enhancement of the compensation awarded bythe Tribunal. 16) For the foregoing reasons, we do not find any scope for enhancement ofthe compensation awarded by the Tribunal. 17) The appeal filed by the appellanV claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. 18) No order as to costs. Sd/- Chief Justice Sd/- R.N. Chandrakar Judge