vt~- IN THE HONBLE HIGH COURT OF CHHATTISGARH AT BILASPUR c<F Miscellaneous Appeal (Q No.r2"2-? of2009. APPELLANT/: ^J) .^•->-i(-T., •*.-»'s'^^ ...''* RESPONDENTS 1. ^ ^ Dilip Kurriar Sahu, son of Khorbahara, aged about 45 years, residence of village Madai, Tahsil Masturi, Police Station Seepat, District Bilaspur, Chhattisgarh. -Versus- Rama Shankar Saruta, son of Sita Rain Sarota, aged about 48 years, residence of village Luthara, Tahsil Masturi, Post Offi.ee Khamariya, District Bilaspur, Chhattisgarh. (Owner of the Tractor No. CG.10 A/8789) Ifco Tokiyo, General Insurance Company, Address I.P.G.I. Third floor, Shop No. 365-366, Lalganga Shopping Mall, G.E.Road Raipiir, Chhattisgarh. Ravishankar, son of Sitarain, Manager, residence of village and Luthara, Police Station Seepat, Tahsil Masturi, District Bilaspur (Driver of the Tractor No. CG.10 A/8789) MISCELLANEOUS APPEAL UNDER SECTION 173 OP THE MOTOR VEHICLE ACT. HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR,J. Afioeyajit Respondents Misc. Appeal (C) No. 227 of 2009 Dilip Kumar Sahu, son of Khorbahara, aged about 45 years, residence of village Madai, Tahsil Masturi, Police Station Seepat, district Bilaspur, Chhattisgarh. VERSUS 1. Rama Shankar Saruta, son of Sita Ram Sarota, aged about 48 years, residence of vitlage Luthara, Tahsil Masturi, post office Khamariya, district Bilaspur, Chhattisgarh. (Owner of the Tractor No.C.G.10 A/8789) 2. Ifco Tokiyo General Insurance Company, address I.P.G.I. Third floor, Shop No. 365-366, Lalganga Shopping Mall, G.E. Road, Raipur, Chhattisgarh. 3. Ravishankar, son of Sitaram, Manager, residence of viltage and Luthara, police station Seepat, Tahsil Masturi, district Bilaspur (Driver of the tractor No.C.G.IOA/8789) Aj)@eaLunder SectiojiJZ3 of the MQtor Vehicle Act, 1988 /^ Present: Shri Om P. Sahu, counsel for the appeljant. Shri Yashwant Singh Thakur, counsel for respondent No.2. ^^'^'^^^^^'^ ^'^^1^^^"^'^^^-^^ •'•''^^;... '"'. ..'"^ SsisW.S ? ^J/ '^^"^' ^': '%^f' B^e-^~-" ORDER >th -<' v (08mJuly,2011) The following order of the Court was passed by Rajeev Gupta, C.J. Appellant/ Claimant Dilip Kumar Sahu is seeking enhancement of the compensation awarded by the 6( Additional Motor Aecident Claims Tribunal, Bilaspur (for short 'the Tribunal') vide award dated 30.12.2008, passed in Claim Case No.52/2008. 2) As against the compensation of Rs.11,05,000/- claimed by the appellant/ claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 09.04.2008, the Tribunal awarded a totat sum of Rs.2,00,000/- as compensation along with interest @ 9% 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 the Ifco Tokiyo General Insurance Company Limited, insurer of the offending vehicle Tractor bearing registration No.C.G.10-A/8789 tiable to pay compensation to the clainiant. The Tribunal considering the number and nature of the jnjuries proved to have been sustained by the claimant in the motor accident and the fact that the injuries and fractures led to amputation of his right leg below knee; and the amount proved to have been spent on his treatment, awarded lump-sum of Rs.2,00,000/- as compensation to the claimant. The Tribunal fyrther directed payment of interest on the above amount of 1 compensation of Rs.2,00,000/- @ 9% per annum from the date of filing of the claim petition till the date of actual payment. 4) Shri Om P. Sahu, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.2,00,000/- only. 5) Shri Yashwant Singh Thakur, learned counsel for respondent No.2 the Ifco Tokiyo General Insurance Company Limited, insurer of the offending vehicle Tractor, on the other hand, placing reliance on the dictum of the Apex Court in the case of Nagappa Vs. Gurudayal Singh and others, reported in AIR 2003- SC 674, contended that the compensation of Rs.2,00,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case. 6) Before the Tribunal, the claimant examined himself alone as AW-1 in suppori: of his claim. For the reasons best known to the claimant, no doctor was examined before the Tribunal for establishing the number and nature ofthe injuries proved to have been sustained by him in the motor accident and the extent of permanent disability suffered by him on account of those injuries. 7) The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the eertificate can be relied upon as substantive evidence for the assessment of the compensation came up for 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: ^^-s^ //sas^ \ Fi Y 'v^ "6. After hearing learhed 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 Couri: 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. TheJ-IJah ^oyrt ^ommitted ^ross erroL in overlookina the _fact_thaLDr.^udhakaL Reddy^s medical certificate_ was _rejected_ by_ the Tribunal for non- 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 comBensatiorL 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, if it has not already been withdrawn." 8) The Apex Court in a recent dictum in the case of 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 jn this case was obtained after two years. It is not known as to whether the 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 saLd certjficateJiacLnoLbeen 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 l^ Workmen's Compensation Act or otherwise is not known. tt 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 oo the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the sar"e, in our opinion, cannot be permitted to be raised for the first time." 9) The medical certificate and the disability certificate produced by the claimant before the Tribunal withoutexamining the doctors who had issued those certificates, 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 in the case. 10) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal. 11) Even otherwise, the compensation of Rs.2,00,000/- awarded by the Tribunal for the injuries sustained by the claimant leading to amputation of his right leg, in view of the dictum of the Apex Court in the case of Nagappa Vs. Gurudayal Singh and others (supra), cannot be termed as inadequate so as to warrant enhancement in this appeal. '/ •^?'- 12) The appeal filed by the appellant/ claimant for enhancement of the compensation, therefore, fails and is hereby dismissed. 13) No order as to costs. ? Sd/- ChiefJustice Sd/- R.N. Chandrakar Judge