\ \ ^@^2S /5^' ffc.^3^1 HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. HON'BLESHRI N.K. AGARWAL, J. Appellant Respondents Misc. Appeal (C) No. 478 of 2008 Kanhaiyalal Sonkar, son of Brijlal Sonkar, aged about 50 years, resident of village Nevarikala, Police Station and Tahsil Balod, District Durg, Chhattisgarh VERSUS 1 Uma Shankar Dahariya, son of Jeevanlal Dahariya, resident of Zone - 3, Road SPA, Q No.6/E, ST Khusipar, Bhilai Police Station - Chawni. Tahsil and District Durg Chhattisgarh 2 ICICI Lombard Motor Insurance Company Limited, through Divisional Manager, Unit No.304-306 3rd Floor. Lal Ganga Shopping Mall, GE Road, Raipur Ravishankar Punipar, Raipur, Tahsil and District Raipur Chhattisgarh Miscellaneous appeal under Section 173 ofthe Motor Vehicles Act Present : Shri Om P Sahu, counsel for the appellant. None for respondent No.1. Shri Amrrto Das, counsef for respondent No.2. ORDER (12th July, 2011) The following order of the Court was passed by Rajeev Gupta, C.J. ?®^a;^I ^^.^' ^. ^ Appellant/ claimant Kanhaiyalal Sonkar is seeking enhancement of the compensation awarded by the Additional Motor Accident Claims Tribunat, Balod, district Durg (for short fie Tribunal') vide award dated 29.12.2007, passed in Claim Case No.39/2007. 2) As against the compensation of Rs.3.10,000/-, claimed by the appellant/claimant, by filing a claim petition under Section 166 of the Motor Vehides Act, for the injuries sustained by him in the motor accident on 23.10.2006, the Tribunal awarded a total sum of Rs.8,500/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 3) Shri Om P. Sahu, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.8,500/- only, though the appellant/claimant sustained multiple serious injuries in the motor accident. 4) Shri Amrito Das, learned counsel for respondent No.2, ICICI Lombard Motor Insurance Company Limited, on the other hand supported the award and contended that as the claimant could not establish that the injuries sustained by him in the motor accident resulted in any permanent disabiljty, the compensation of Rs.8,500/- awarded by the Tribunal is just and proper compensatjon in the facts and circumstances ofthe present case: 5) Beforethe Tribunal, the claimant examined as many as two witnesses including himself (AW/1 Kanhaiyalal Sonkar and AW/2 .Ganesh Ram) in support of his claim. For the reasons best known ^^\N ,r ^' Qf to the claimant, no doctor was examined before the Tribunal to establish the number and nature of the injuries said to have been sustained by the appellant/claimant in the motor accident and the fact that those injuries resulted in any permanent dlsability. 6) 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 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 aross 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." 7) 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 in para 11 : "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 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. Whether the disability at 60% was calculated 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 Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contentton having been raised in regard to the applteabitity 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." 8) - The medical certificates produced by the claimant before the Tribunal without examinjng the doctors who had issued those <>n^ certificates in vjew of the above quoted dlcta of the Apex Court rn the cases of A.P.SRTC Vs P. Thimpal Reddy (supra) Rajesh Kumar alias Raju Vs Yudhvir Singh and another (supra) cannot be taken into consideration for enhancement of the compensation in the case. 9) We, therefore, do not find^ any scope for enhancement of the compensation awarded by the Tribunal. 10) The appeal, filed by the appellant/daimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. 11) No order as to costs. -—-— Sd/- Chief Justice Sd/- N. K. Agarwal Judge subbu