Mahendra Matelkar v. Nesari Lal Gautam & Ors.

S.B. Hon'ble Shri Justice N.K. lAaarwal 06.11.2009 Shri OP Yadav, Advocat :e for appellant. None for respondent Ncj . 1 & 2. Shri BN Nande, Advocate for respondent No. 3. Heard on IA No. 1, appjication for condonation of delay in filing the appeal. On due consideratioifi^ application and the submiss the grounds raised ij^ns made by thecounsel, 1 am satisfled that the counsel f^r appellant has succeeded in explaining the delay caused jrj flling this appeal. Accordingly IA No. 1 is allowed and delay ca^ised in filing the appeal is hereby condoned. Heard on admission. The instant appeal has been preferred by the appellant, seeking enhancement ofcom^ensation againstthe award dated 05.10.2007, passed by the l Xlth Additional Motor Acddent Claims Tribunal (FTC) Raipur|(for short 'Tribunal') in claim case No. 109/06. i The brief facts of the case according to appellant are that, on 10.03.05, the appellant tnet with an accident by Truck bearing registration No. CQ-04/ZC-6272 due to rash and negligent driving of the Tru^k Driver and pursuant to said accident sustained grievous injuries. ^^ ^^ ^^lr^^I^^^ri-3—?<S/95—I'l /2008-1.00,000. II •5^5 -.^TqT^zr, ^Tiiy^^, Poi^l-yy lTNWi?"-iraR" ••M^^--"^^-:H-^r2QO & ^B<??^ ("^tyrs^) ^mw^f^w^ 4»{^<qh^(H^fi? ft^ <rf^$I< '^a?tRR ^T^i The appellant preferred{ the! under Section 166 of an application before the Tribunal Motor Vehicles Act, claiming compensation to the tune of Rs. 14,00,0007- for the injuries sustained by him on account The Tribunal, on a clo^ the material the parties, submissions of the parties, 17,000,/- as compensation in Learned counsel although the Doctor has not looking to the fact that the ay and amount awarded is shockl be allowed and the compensa| 1 have heard the lea( if the said accident. |e scrutiny of the evidence led by [available on the record, awarded total amount of Rs. f^vour ofthe appellant. fie appellant would submit ^een examined in this matter, but ^pellant sustained grievous injury, {ng on lower side, this appeal may (ion be enhanced. ^ned counsel appearing for the appellant andperused the rec<(»rd. The Supreme Court in c^ase of A.P. SRTC v. P. Thirupal SCC-189, observed in para 6 as Reddy, reported in (2005) 12 under: "6. After hearing learnejd counsel for the respondent- claimant who made an atttempt 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 ehhance the compensation by treating the injury as perpianent disability to be 45 per cent. The High Court comrjnitted gross error in overlooking the fact that Dr. Sudhakar jReddy's medical certificate was •^^^ ^^ iT^TI-^T U^^T^it^—FS/95—i-l /200^—1,00<000. 11 XI-HC—78 ^ST ^iqicn^, ^til^Ko, facni^y *l(*l^i <Eh*ll«!b ^^<i^^..........t..2.±2.............^^Q g 3?I^T TR^ ( ^°li^<sl<^) '3?r^l ^T f<'li<=h '^8n 3?n^T'^nNi> ^^TW^fN^n^T ^4 <sbl^fd4i'1 'HR^f 'fe^t '^3>tRm3TT^T ^ <Rn^i< for non-examination of rejected by the Tribunal doctor. The Tribunal h^s disability at 15 per cent onj Dr. K.M. Mitra and awarde(| The High Court erred enhancing the compensation. this appeal, set aside the ir|ipugned award of the Claims Tribunl allowed to withdraw the amt by the Tribunal, if it has not|already been ^s determined the physical 1 the basis of the deposition of a just and fair compensation. disturbing the same and Consequently, we allow ir|ipugned order and restore the The respondent-claimant is >unt of compensation awarded withdrawn." The Supreme Court in a recent dictum in case of Rajesh Kumar alias Raju v. Yudhvir (2008) 7 SCC 305, observations in para 11 : reiterated ^ingh and another, reported in |he same view with the following Itis not quesp:ion "11. The certificate in after two years. Surgeon of the hospital basis, such a certificate accident took piace is not certificate had not been the certificate examined evidence. Whether the on the basis of Compensation Act or othe^ not known as to whether h^ a certificate. raised before us had Tribunal orthe HighCourt. Court, therefore, proceede< record by the parties. having been raised in regs Workmen's Compensation facie has no appliGation, th< be permitted to be raised foi in this case was obtained fcnown as to whether the Civil tr^ated the appellant. On what w(is issued two years after the Unown. The author of the said extimined. Unless the author of hii|iself, it was not admissible in di^ability at 60% was calculated the Workmen's pi|ovisions of (wise is not known. It is also was competent to issue such r|ot appear that the contentions either been raised before the |The Tribunalas also the High on the materials brought on lr| absence of any contention >rd to the applicability of the |Act which, in our opinion, ex isame. in ouropinion, cannot the firsttime." It even does ' ^T\ !t '•"'• l',"X2>HC—78- "y" -^T f^Fim;' ^^' ?i^T .^T^-sF??^- j \^,'; ^"^^ t--1^ -t, ^ Tfl ^^%; T^WqT Nl^W? Shi-ff^ "^2Q@'gl: -37T^T<^^ C'l^ii'3^^)'; -T ^T^sm^f ^?^ ^r t^t TT^T^ ^3TRm3H^[ ADivisionBench of thi^ High Courtln case of Pracfeep Kumar Sahti vs. Sarupa Sahif & anoffiervide order dated 31st March, 2009, placing its reliajice upon the dicta of Supreme Court in the cases referred abojve held in para 8 as under: "8. In view of the abov^ quoted dicta of the Apex Court in the cases of A.P. SRT^ v. P. Thirupal Reddy (supra) and Rajesh Kumar alla^ Raju v. Yudhvir Singh and the c^rtificate produced before the anotfter (supra), in the absence{of examination of the Doctor Tribunal issuing the certificate is nejither admissible in evidence nor can be taken into consid^ration as substantive evidence for assessment ofthe comlpensation in the case." In a motor accident clai Motor Vehicles Act, 1988, |n case, as per Section 168 of the by the Courts/Tribunal should be compensation to be awarded just and proper compensation in the facts and circumstance of each case. It is neither a bounty nor charity. is important is that For the reasons mentioned hereinabove, 1 do not find any scope for enharicement of the compensation awarded by the Tribunal. The appeal filed by the appellant for enhancement of the compensation is therefore liable to be and_isjiereb^dismissed. No order as to costs. N. K. Agarwal Judge aisi.iieis^^^w'^'s-^ Sahu t.r^WK^-^-^lSSt^^ '^ ,\<~ •\;