SMT. SHANTI TIRRKI v. The Oriental Insurance Company Limited & Ors.

S/o- Shri Shivpyare Gupta, Aged - 40 years, cast Teli, Profession owner of bus, R/o - village and mohlla Ar^ Balrampur, Thana Dhorpur, Dist. - Sarguja [C.G.] ^""

3. Mohamniad Haqik S/o- Shekh Mohammad, aged- 35 years, Profession driver of bus, R/o - village Uadri P.S. 8& Tahsil Lundra Dist. - Sarguja [C.G.] APPLICATION FOR UNDER SECTION 173 (1) OF THE MOTOR VEHICLE ACT 1988 (THER AFTER CALLED THE ACT FOR ENHANCMMENT QF THE AMOUNT OF COMPENSATION AND MODEFICATION REGARDING APORTIONMENT OF AMOUNT OF COMPENSATION J \^ XI-HC—78 "?^r ^ww^, ^Ti1^4i<o/1^<n!^^< wp^n ^w^i ,.^^.G.......V!24.................... ^2003 ^T^?TTT3RT (^lf^S^) W^T ^ r^w Tf^i ^Tl^T ^:H^ 1C1c<Tr^T'^rft^ W^T ^s^t<rt<i1tl 'HTR^ff ^f fe^ Tt^i^T ^3tRR3i?^l S.B. Hon'ble Shri Justice N.K. Aaarwal 09.11.2009 Shri Vijay K Deshmukh, Mvocate forappellant. Shri Ghanshyam Patel,| Advocate appears on behalf of Shri Abhishek Sinha, Advocat^ for respondent No. 1. ^" None for respondent No^ 2 & 3 though served. the parties submits that Counsel appearing foi1 dispute relates to quantum o|f compensation and respondent No. 2 & 3 are not necessary p^rty to be heard, therefore, notice to respondent No. 2 & 3 may b^ dispensed with. On due consideration, thje prayer is allowed. Since the counsel for t| ^e parties are ready to argue the |heardfinally. matter, therefore, the appeal is Heard on admission. The instant appeal has] been preferred by the appetlant, seeking enhancement of compjensation against the award dated 23.10.2008, passed by the Surguja (for short 'Tribunal') in Motor Accident Claims Tribunal claim case No. 49/06. The brief facts of the ca^e according to appellant are that, on 10.12.2005, the appellant rjiet with an accident with the Bus -15/ZA-0748 due to rash and bearing registration No. CC^ negligent driving of the Bus Drjver and pursuant to said accident sustained grievous injuries. i^W-M^-.^-t^.i—^^^ ^M~MTf^':. INi^ |i>^|^s54N-| '-HC—78 ^ •3-sr ^iqKrj^ ^•ri1<44i<o; f®l<nra^< ^fmnr ^r»*sic(» . ^ A-C 'W^IOO^ 3Ti^?r Tpw (^flN^) ^II^T'^T R^ioh TTm BTT^T -^FRNF '^flW^rf^ 3^1 ^?Rfe?^f 1RTR^?f ^ 'fe(^ "^'3?fm3TR¥T T^l^ The appellant preferred the| under Section 166 of |an application before the Tribunal claiming Motor Vehictes Act, ^ compensation to the tune o] Rs. 2,27,700/- for the injuries sustained by her on account o\ the said accident. The Tribunal, on a closie scrutiny of the evidence led by the parties, submissions of the material lavailable on the record, and the parties, awarded total amount of Rs.

15.600,/- as compensation in f^vour ofthe appellant. Learned counsel t|ie appellant would submit although the Doctor has not t|een examined in this matter, but looking to the fact that the apjpellant sustained grievous injury, and amount awarded is shock|ng on lower side, this appeal may be allowed and the compensatjon be enhanced. 1 have heard the leaijned counsel appearing for the appellant and perused the reccj »rd. The Supreme Court jn c^ase of A.P. SRTC v. P. Thirupal Reddy, reported in (2005) 12 under: SCC-189, observed in para 6 as "6. After hearing learnejj counsel for the respondent- claimant who made an att^mpt to support the order of the High Court. We find that ^here was no justification for the High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and e|ihance the compensation by treating the injury as perjnanent disability to be 45 per cent. The High Court comijnitted gross error in overiooking the fact that Dr. SudhakarJReddy's medical certificate was Rfl r 1 1 ^..J." ^..t^ '^y^ ..-•:-' ^., Xl-HC—78 '3'^ ^TRT^PT, ^tl1^4{^ f®l<ni<H^< ^pR'iTtiwr^ R^-^-^-L-----(n200^ ^TI^T TI^T (yif^^T) a^i^T'f^w ^f^T 3?i^I ^TjNf iRTW[^if?Tf ^ry^r cr){^?€li4ii W^f ^f 'fe^ '^>3?fw3T?^r T^R?R rejected by the Tribunal doctor. The Tribunal disability at 15 per cent 01 Dr. K.M. Mitra and award< The High Court erred enhancing the compensa this appeal, set aside the award ofthe Claims Tribur allowed to withdraw the ar bythe Tribunal, if it has noi for non-examination of as determined the physical the basis of the deposition of a just and fair compensation. |in disturbing the same and tion. Consequently. we allow ipugned order and restore the ^al. The respondent-claimant is |ount of compensation awarded already been withdrawn." The Supreme Court in a recent dictum in case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, observations in para 11 : reiterated jthe same view with the following It is not "11. The certificate in que^tion in this case was obtained after two years. iknown as to whether the Civil Surgeon of the hospital tr^ated the appellant. On what basis, such a certificate vjras issued two years after the accident took place is not |<nown. The author of the said certificate had not been e^camined. Unless the author of the certificate examined h mself, it was not admissible in evidence. Whether the d|sability at 60% was calculated on the basis of the rirovisions of the Workmen's Compensation Act or oth^rwise is not known. It is also not known as to whether h^ was competent to issue such a certificate. It even does |iot appear that the contentions raised before us had ejther been raised before the Tribunal or the High Court.| The Tribunal as also the High Court, therefore, proceed^d on the materials brought on record by the parties. Ih absence of any contention having been raised in re^ard to the applicability of the Workmen's Compensationj Act which, in our opinion, ex facje has no application, tl1 e same, in our opinion, cannot be permitted to be raised f(j f the first time." ^* ^ ^ ""^ i ^ .XPHC—78 - '5^ ^i^Kn^, 'gTTiwi^, f^rrafy ^mdT^pn^ 'w: 2003 3TI^?r °q^T ( ^li^<^) 3??^l ^T'f^iFF ^^ ^^l^^^ ^<iT^R^f^T^H^ _-r.^. ^T^feRT^T 'Wl^ff '^ fe^ if^S^R ^? .stf^q 3??t^ l^; V-" A Division Bench of thi^ High Court in case of Pracfeep Kumar Sahu vs. Sarupa Sah^i & anoffiervide order dated 31st March, 2009, placjng its relisjnce upon the dicta of Supreme Court in the cases referred abcjve held in para 8 as under: "8. In view of the abov^ quoted dicte of the Apex Court in the cases of A.P. SRTC^ v. P. Thirupal Reddy (supra) and Rajesh Kumar alia^ Raju v. Yudhvfr Sfngh and another the ce|rtificate produced before the (supra), Tribunal in the absence jof examination of the Doctor issuing the certificate is ne|ther admissible in evidence nor can be taken into considel'ation as substantive evidence for assessment ofthe comt)ensation in the case." In a motor acddent clair|i case, as per Section 168 ofthe is important Motor Vehicles Act, 1988, js that compensation to be awarded t»y the Courts/Tribunal should be just and proper compensation each case. It is neither a bounfy nor charity. in the facts and circumstance of 1 For the reasons mentior^ed hereinabove, I do not find any scope for enhancement of th ^ compensation awarded by the Tribunal. The appeal filed by the compensation is therefore liab ^ppellant for enhancement of the je to be and is hereby dismissed. No order as to costs. SaHu 1. Sd/- N.K. Agrawal Judge