^ ^^^&^11 ^ %-?^'/^' HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ. HON'BLE SHRI RANGNATH CHANDRAKAR, J Misc AppeaS (C) No. 1490 of 2009 ^^... Appellant Rajendra Prasad Tyagj, s/o Shri Hari Vilas Tyagi, Aged about 47 years, r/o Pendra Road, District Bilaspur, CG (Appellants is claimant) '<. VERSUS Respondents 1 Deepak Kuamr Khalkho, S/o Shri Janpat Khalkho, R/o Village - Tellamar, PS Pasan, District - Korba (CG) (Driver of the offending vehicle) 2 Anand Kumar Agrawla, S/o Shri Jaikaran Das Agarawal, r/o Village Pasan, PS Pasan, District Korba (CG) (Owner of the offending vehicle) 3 The Branch Manager, the Oriental Insurance Co. Ltd., Branch -Bilaspur, DistrictBilaspur(CG) Miscellaneous Appeal under Section 173 of MotorVehicles Act Present : Shri Ankit Singhal, counsel for the appellant. ShriSaurabh Sharma and Shri AL Singraul, counsel for respondent No.3. ORDER (04th August, 2011) ^-r MAC No. 1490 Of 2009 ^. i^- The following order of the Court was passed by Rajeev Gupta, C.J. Appellant/claimant Rajendra Prasad Tyagi is seeking enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Pendra Road (for short 'the Tribunal') vide award dated 29.08.2009, passed in Claim Case No.5/2009. 2) As against the compensation of Rs.11.65.000/-, 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 24.10.2007, the Tribunal awarded a total sum of Rs. 1,32,6607- as compensation along with interest @ 6% 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 that claimant Rajendra Prasad Tyagi sustained injuries and fractures in the motor accident on 24.10.2007; the claimant himsetf and the driver of the other vehicle Bolero bearing registration number CG-10 F 2326 equally contributed to the accident; as the above offending vehicle Bolero on the date of the accident was insured with the Oriental Insurance Company Limited and the Insurance Company could not establish any breach of the policy conditions, the Insurance Company was liable to pay 50% of the compensation assessed by the Tribunal to the ctaimant. 4) - The Tribunal considering the number and nature of the injuries proved to have been sustained by the claimant in the motor MAC No. 1490 of 2009 ^ ^. accident and the amount proved to have been spent on treatment, awarded Rs.1,10,986/- towards medical expenses; Rs.73,010/- for ioss of income/leave during the course of treatment; Rs.56,322/- for disability suffered by the claimant; Rs.20,000/- towards pain and suffering; and Rs.5,000/- towards special diet. The Tribunal, thus, assessed the total compensation at Rs.2,65,318/-. As the driver of the offending vehicle Bolero was found liable to the extent of 50% only, the Tribunal directed the insurer of the offending vehicle Bolero to pay 50% of Rs.2,65,318/- i.e. Rs.1,32,660/- as compensation to the claimant. The Tribunal further directed payment of interest on the above amount of compensation of Rs.1,32,660/- @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 5) Shri Ankit Singhai, learned counsel for the appellant vehemently argued that the Tribunal has erred in holding that the claimant also contributed to the accident to the extent of 50%; and in awarding low compensation of Rs.1,32,660/- to the claimant. 6) Shri Saurabh Sharma and Shri AL Singraul, learned counsel for respondent No.3 the Oriental Insurance Company Limited, the insurer of the offending vehicle Bolero, on the other hand supported the award and contended that the Tribunal has rightly held that the claimant also contributed to the accident to the extent of50%. 7) „ So far as the finding recorded by the Tribunal holding that the claimant was also responsible to the extent of 50% for the accident is concerned, it is apparent that the accident occurred in broad •i '^- ^- MAC No. 1490 of 2009 ^ v^- ^... day-light at about 11.30 am; the claimant admittedly was not holding any driving ticense, not even a learner's license on the date of the accident, which is apparent from the fact that the learner's license produced by the claimant before the Tribunal was issued on 27.10.2007, i.e. after three days of the accident which occurred on 24.10.2007. We, therefore, do not find any infirmity in the above finding recorded by the Tribunal. 8) Claimant Rajendra Prasad Tyagi was aged about 46 years on the date of the accident. He was working as Wireless Operator in the Police Department. it is not the claimant's case that on account of the injuries sustained by him in the motor accident either he has been removed from the service or his salary has been reduced or he has been denied any promotion which was due. The claimant being a Government servant, in all likelihood, the entire medical expenses incurred by him on his treatment must have been reimbursed by his employer, State Government. 9) The permanent disability certified vide Ex.P/70 was only to the extent of 15%. Admittedly, the ctaimant did not examine any doctor before the Tribunal for establishing that the injuries sustained by him in the motor accident resulted in any permanent disability. 10) The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate 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 Vs P. Thirupal MAC No. 1490 of 2009 ^ Reddy reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under: "6. After hearing learned 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 Court 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 percent. The High Court committed gross error in overlookina the fact that Dr Sudhakar Reddv's medical certificate was reiected bv the Tribunal for non-examination of that doctor. The Tribunal has determined the phvsical disabilitv at 15 per cent on the basis ofthe deposition of Dr KM Mitra and awarded a iust and fair compensation. 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." 11) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju Vs Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observations inpara11 : ; "11. The certificate in question in 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 MAC No. 1490 of 2009 ^ place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whetherthe disability at 60% was calcuiated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It 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 Tribunai as also the High Court, therefore, proceeded on the materiats 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 same, in our opinion, cannot be permitted to be raised for the first time." 12) The medicalcertificate and the disability certificate produced by the claimant before the Tribunal without examining the Doctors who had issued those certjficates cannot be taken into consideration in view of the above quoted dicta of the Apex Court in the cases of A.P.SRTC Vs P. Thirupal Reddy (supra) Rajesh Kumar alias Raju Vs Yudhvir Singh and another (supra), for enhancement of the compensation in the case. 13) For the foregoing reasons, we do not find any scope for enhancement ofthe compensation awarded by the Tribunal. padma ^'^ MAC No. 1490 of 2009 14) The appeal filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. 15) No order as to costs. Sd/- Chief Justice Sd/- R.N. Chandrakar Judge