Rajmen Bai v. Shivnarayaii

SB; HON. SHRI JUSTICg N.K. AGAW^L 19-11-2009 Shri Ashok Kumar $hulda, Advocate, for the appellant. Shri RSQ Awasthy, Ajdv. for fhe respondent No. 3. Appellant/ claima4t is seeldng enhancement of the 2. compensation awarded b^ award dated 25-11-2004 passed by pcident Claims Tribunal, Surajpur IIIrd Additional Motor A] Lssed in Claim Case No. 40/2002 (FTC), Distt. Saiyija p^ preferred by the clalmai^t under Section 166 of the Motor Vebicles Act, 1988 (herei4after referred to as the Act). As against the comjpensation ofRs. 4,00,000/- claimed 3. by the appeUant/claima^it by filing a claim petition under fhe injuri.es Section 166 of tfae Motor Vehicles Act sustained by appellant/c^aimant in the motor actiident on 24- 10-2000, the Tribunal a^arded a total sum of Rs. 1,000/- as compensatton. | Shri Ashok Kumar Shukla, leamed counsel for the 4. appeUant vehemently argued that the Tribunal has erred in awardtng low compensation of Rs. 1,000/- only, whereas the claimant sustained multiple serious inji-uies in the motor accident. ra K aa lysiv^ nvwiw —FS'9S—1i /2001!—1.On.OBS. + r, ®T(T(Tire,T'sTffRTy «WW(%;?IW 3(1^1 •!Rl^C<5qfgS[^: an^t wiii-ii* ?^T 3?I^¥fiFsff^ Wfiwssfpi sii^r 'chI^Wftf ^ER?f ^ t^^ ^t*^ '^•3ffTO3iI^t

5. Per contra, Shri Awfasthi, leamed coiinsel appearing for 3 j submits that in the facts and the respondent no. circumstances of fhe cas^, the award passed by the Tribunal is adequate and it does n|ot require any enhancement and the appeal deserves to be di^missed as fhe doctor has not been examined to prove mjiuy.| For the reasons be^t known fhe appellant / claioiant no 6. doctor was examined Ufore the Tribunal to establish the nature of the injuries s^id to have been sustained by the claimant in the motor ac4ident and the fact that ftiose injuries resulted tn any pennaner^t disability. The question wheth.er fhe medical certificate produced 7. by fhe claimant before the Tribunal without examining the Doctor who issued the'i certt&cate can be relied upon as substantive evidence for ,the assessment of fhe compensation came up for consideration before fhe Apex Court ta 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 : leanied hearing counsel "6. After respondent-claimarit who made an attempt support the order <3f the High Court, we find fhat fhere was no justififcation for tlie High Court to rely on the dlsabllity certificate issued by Dr. Sudhakar Reddy and erihance the compensation by treattng .;.T~?%T£i s^i^' )^)4^-^^-n^i^—::s/95—i i /zoo's—t.iio.ooy. ^\ .?.^^.. ''"i-A: XI-HC—7S SK^I 'SR W\'» wn sn^r ai*ii<i ^S( '<11<11Ct'4, ynflyi'o, (sidiyy sn^r TSR;- (^g^q) qOTferah tiprcfl ^' teA <r'n*$i< ^i'affiPTSt^f disabUtty to be 45 per cent. the injuiy as permaneijit The High Court ^>mmltted overiookmg the fact EhatiJ3r. Sudhakar Reddv's reiected by (he Tribunal for medical certiilcate wa.^ non-examuiation of tMat doctor. The Tribiinal has determmed fhe phvsic^l disabiUlv at 15 per cent on the basis of the deuofeition of K.M. Mitra and awarded _a lust and feir comuensatlon. The High Court erred in disturtAng fhe same and enhancing Cj^nsequently, we allow this the comRensatipn. appeal, set aside the pinpugned order and restore injis Tnbunal. The respondent- the award of the Claintis withdraw the amount of claimant by fhe Tribi.mal, if it has not compensation awardec| already been withdrawji The Apex Court in a rdpi is aUowed

8. rei|t( ilcent dictum in the case of Rajesh Kumar alias RS(JU v. Yudh^ir Singh and aaother, reported terated the same view with fhe in (2008) 7 SCC 305, foUowing observations in pai|a 1 1: " 11. The certificate }n question in this case wras is not known as to obtained after tnro Suifeeon of the hospital treated whether fhe Civil basis, such a certificate was the appellant. On whal) pie accident took place is not issued two years after fhe said certificate had not known. The aufhor ofl been examined. Uiilesi fhe author of the certificate admissible _in examined hunself, i t|ie disability at 60% was evidence. Whetfaer calculated on fhe ba^is of the provisions of the Workmen's Compensapon Act or otfaerwise is not known. It is also not known as to whether he was was not ycjars. It + 'n + aBB '"4]'4!M<1, T^ yTtl'M-i'o, ral")!^^ D" STI^I Tfi^'(y<(3«iq»l) an^rwfewR TOiHIT'lftaSti^t ^ra^T^fR vs^^ ^ f?^ ^^-; ^3?fim3!I^?I competent to issue ^uch a certt&cate. It even does not appear fhat th^ contentions raised before us had eifher been ralbed before the Tribunal or fhe High Court. The Tr^biinal as also fhe High Coiut, therefore, proceede4 on the materials brought on record by fhe partie^. In absence of any contention having been raised jn regard to the applicabUily of the Workmen's Co4ipensation Act which, in our opinlon, ex facie hfijs no application, the same, in oiir opinion, cannolj be pennitted to be raised for the first tune." In fhe instant case, ^t is not provfed as to how niany days 9. fhe injured remamed in l{iospital. It is also not proved as to how much amoi-int she ^pent in treatment and, therefore, considering the facts ^nd circumstances of the case, particularly when (he doc|:or has not been examined to prove the injmy and certificates^ an amoiint ofRs. 1,000/- has been 1 awarded as compensationi to the claimant. In view of the above quoted dicta ot fhe Apex Court in 10. the cases of A.P. SRTC jff. P. Thirupal Reddy (Supra) and Rajesh Kumar alias Raju v. Yudlivir Sia^i aad another (Supra), the certt&cate produced before the Tribunal in the absence of examination of the Doctor issuing ftie certtflcate is neither admissible in ^vidence nor can be taken into consideration as substantive evidence for assessment of fhe compensation in the case.' '•fi'1<I.!FT;^iT3—'.S/95—U/'2{i0<i—l.OU.OOO. Vii'T'%':':!r:.i'":'?f K'if.y: I;:' ::' - : XI-HC—78 'S^ '*iwi»<f,yal^'Ko, [s(<')iyy sn^?T1ra?i'(' Stl) W W-il°b TOnwHJNan^i y'^'WR %3ffipt3lR?t

11. For fhe foregouig rea enhancement offhe comper

12. The appeal enhancement of the dismissed and is hereby 13. No order as to costs. comp^nsatii disbiissed. ^ons, I do not find any scope for ^sation awarded by the Tribunal. |?y |nsation, therefore, is Uable to be appellant/claimant Sdl- N.K. Agrawal Judge -p