Jliamu v. John Canady @ Gyru

S.B. Hon'bfe Shri Jusfice N.K. Aaarwal 17-09-2008 Shri Pankaj Shrivastava, copnsei for the appeliant. Shri P. Dutta, counsei for r^spondent No.3. Heard on admjssion. [nhancement of compensation in the This is daimant's appea! for^ 2. ^ Additional Motor Accident CIaims award dated 12-11-2007 passed b1 referred to as 'the Tribunai, South Bastar, Dantewar) ^ p06 whereby and whereunder an jn Claim Case No.85/2) [interest 6% per annum has been |es sustained by the appeiiant in the awarded by the Tribunal.for the inju^ amount of Rs.28,900/- along with (hereinafter Tribunai') accident dated 25-02-2005.

3. Shri Paankaj Shrivastava, le^rhed counsel for the appel}ant has submitted that the amount assess^d by the Tribunal is shockjngiy on S3Bde in as much as thel amount has not been awarded inconsonance with the injuries s| although Doctor has not been exami| the accident but looking to the r\ Listained and also submitted that ned to prove the injuries sustained in injuries sustalned by the ature of appeilant, the compensation award^d by the learned Tribunal may be enhanced.

4. record. I have heard learned co |«nselforthe parties and perused the ^ J.; XI-HC—78 75^ ^FTT^R, '^ft^TT?, [®l<ni<-t'j,< ^•4lcc)...<Nr.o..:...ZACfi <nH<E!fII <S»t*ll<t» 200^ a?n^?T '<T?^ (yii^^r) ^^ ^T R'licb WT 3T1^T 9r»^ICi>> T^RTTW^lf^T -ol- cbl^fd^^ TTTR^!if ^f fs^ <Fai^l< ifr3ffiW3^T ^

5. For the reasons best known to the appelEant, he has not examlned the doctor to prove the | 6. is settEed faw thaf ti1< !t ijuries sustained by him. Injury reports in the absence of examination of doctor is neither lmlssjb!e in evidence nor can be taken into consideration as substantil e evidence for assessment of compensatlon in the case. En vh vJew ofthe fact that nothing has 4 amount awarded Is inadequate, ^ of the settted position of Eaw and in ^en brought on record to show that the the considered opinion of this Court, the amount awarded by the tribun{ tl is adequate. The Supreme Court in

7. Reddy, reported in (2005) 12| under: ase or' A.R SRTC v.P.Thinipal SCC-189, obsen/ed in para 6 as "6. After hearing iearnetj daimant who made an High Court. Wefind that| High Court to rely on the Sudhakar Reddy and enha| the injury as.permanent d| High Court committed gros^ Dr. Sudhakar Reddy's med| Tribunal for non-examinatil has determined the physic^ basis of the depositron of and fair compensation. Tl the same and enhancing we aliow this appeal, set restore the award of the ciaimant is aljowed to with< awarded by the Tribuna| withdrawn." counsel the respondent- att^mpt to support the order of the Ihere was no justification for the lisability certificate issued by Dr. a|ice the compensation by treating Isabiiity to be 45 per cent. The error in overlooking the fact that |ca! certificate was rejected by the >n of that doctor. The Tribunai i! disability at 15 per cent on the pr. K.M. Mitra and awarded a just |e Hsgh Court erred in disturbsng |e compensation. Consequently, aside the impugnedorder and |alms Tribunal. The respondent- ^raw the amount of compensation it has not already been + -3-rc[ ^t^l^q, ^Tfl^'»l<o, {Q|<^1^< ^TP^II <St»Nt<t» ^;.G)..,.AlU...y..,,,..?,.S.<l^^ ^ 3R^T1(T?W(Tpt3^1) 3?!^ ^5T ^J<<» WT3?H^T Sh*ll®ft ^<HW Tltel 3T(^T - 3>- ohl^id^R4 'RW^f ^f 'fel:2t'^R?R ^" 3?ifw 3??^?T

8. The Supreme Court inj a recent djctum in case of Rajesh Kumar alias Raju v. Yudht 1r Singh and another, reported in (2008) 7 SCC 305, observations jn para 11 : reiterat( d the same view with the following It vi| islsued "11. The certjficate in q| after fcft/oyears. Surgeon of the hospital tr< such a certificate was took place is not known. had not been examined. examined himself, Whether the di'sabjlity at the provisions of otherwise is not knowh. was competent to issue appear that the contentio^ raised before the Tribunaj also the High Court, theij brought on record by contention having been rc the Workmen's Compen^ation facie has no applscatson, permitted to be raised for ^estion jn this case was obtained known as to whether the Civil ^ated the appeilant. On what basis, two years after the accident The author of the said certificate lUniess the author of the certificaSe las not admjssibie in evldence. |0% was caiculated on the basis of IVorkmen's Compensation Act or js also not kndwn as to whether he it even does not tuch a ceftifjcate. |s raised before us had either been or the High Court. The TribunaJ as |efore, proceeded on the materiaJs in absence of any |he partles. |ised in regard to the applicability of Act which, in our opjnjon, ex jhe same, in our Qpinion, cannot be thefirsttime."

9. A Divisjon Bench of tttiis High Court in case of Pradeep Kumar Sahu vs. Sarupa S^?y & anotherv^e order dated 31st March, 2009, placing its relia in the cases referred above h< |ce upon the dicta of Supreme Court iid in para 8 as under: "8. In view of the abo^ the cases of A.P. SRTC quoted dicta of the Apex Court In jy. P. Thsrups' Reddy (supra) and ^^ft^ ^^ ^TT^T <l^i^(M—FS/95—11/ 2008—1,00,000. T XI-HC—78 '3~5ET ^tl^Krj^ ^Tll^^Ko/ [®|<rll^^< *11*1CTI tblich ^ MAFC) Nto. ^^^^"'^200<? 3T^?r TI^F ( ytl^^) 37I^T'SFT ^FTW 3iTT^T s»>^icr) "cTO ^RTTW ^Tf^T ^TT^T 4- cbNid^l'1 *ii*idf'^ fs^ <P»i'^i< ^fr stfim 3T^??T y y. Yucfhvir Singh ancf another before the Tribunal in the :he Doctor issuing the certificate /idence nor can be taken into evidence for assessment of the Rajesh Kumar alias Raju\ (supra), the certificate procjuced absence of examinatjon of .•is"neM<I.Sffliissib!e jn el .dohgtt^r^ilCTPsls substaritivi ;..co^np^»satji@w1ithecase." .eg&yl... .^..

10.,... ln..a.^iNrN§bident dairrl jia-I^ ?«?§P^WW%t, 1988, compeo.s.^njt^^e awarded b^ and proper cie^ensatjon in th| case. It is neithepa bounty nor c|harity. jmportant case, as per Section 168 of the /vhat the Courts/TribunaE shouid be just facts and circumstance of each For the reasons mention^d

11. scope jpr eo.bgQcement of Trfbunal. .,.:r^-nrtt ' ' . • hereinabove, { do not find any th^ compensatjon awarded by the

12. The appeal filed by the ^ compensation js therefore llable ^ppellant for enhancement of the |o be and is hereby dismissed. Np order as tQ costs. N6 order asto dOStS. Sd/- N.K.Agarwal Judge Kvr 1+