t' (^) ^-p^- IN THE HIGH COURT OF JUDICATURE AT BILASPUR iC.G.) M.A. fC)l34.^ /• 2.0JO H^^^tt ^ ^ ^ ^- ^s APPELLANT : Claimant y..^^^ .\^T"^^i ^^60&" RESPONDENTS NON-CLAIMANTS ^ Doman Sohu Qlios Dumon S/o /L^?^A.6^<~Mclnclhar Sahu, Aged about 35 Years, ft AjQ Occupation : Agriculture Labour, R/o Kota Basti, Tahsil and District Raiipur (Chhattisgarh) VERSUS 1. Narendra Sahu S/o Dukhiram Sahu aged about 24 years, Occupation Driver of Metodor, R/o Village SQrgoon, Thano Hirri, Tohsil ond District Bilaspur (C.G.) 2. Anupam Raghav S/o S.S. RoghQv, Occupation : Owner of Vehicle, R/o Ashirwod Transport DhomtQri Road, Pachpedi NokQ, Roipur, Tahsil and District Durg (C.G.) 3. The New Indio Insuronce Company Limited, Through : DivisionQl Manoger, DivisionQl Office : Kutchery Chowk, Jail Rood, Roipur, Tahsil & District Raipur (CG) Misceltanceous Appeal underSection 173ofthe MotorVehicle Act 1994 HLGhLCOAJlRT OF CHHATTISGARH AT BILASPUR Appellant Claimant Respondents MACNo. 365 of 2010 Doman Sahu Versys Narendra Sahu & Others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT ISB: Hon'ble Mr. N.K. Aaarwal. J.) Present : Shri SC Verna with Shri Aditya Khare, Advocates for appellant. ORAL ORDER (Passed on 5th day ofApril, 2010) Heard on IA No. 1 , application for condonation of delay. On due consideration, 1 am satisfied that the counsel for appellant is succeeded in explaining the delay caused in filing the appeal. Accordjngly !A No. 1 is allowed and delay is accordingly condoned. Heard on admission. The instant appeal has been preferred by the appellant, seeking enhancement of compensation against the award dated 21.10.2008, passed by the 9th Additional Motor Accident Claims Tribunal (FTC) Raipur (for short 'the Tribunal') in claim case No. 27/98. The brief facts of the case according to the appellant are that, on 28.09.2006, the appellant met with an accident with Matador bearing registration No. CG-04/Z-5215, due to which the appellant sustained multiple injuries. The appellant preferred an application before the Tribunal under Section 166 of the Motor Vehicies Act, claiming compensation to the tune of Rs. 9,05,000/- for the injuries sustained by him on account ofthesaid accident. The Tribunal, on a close scrutiny ofthe evidence led by the parties, the material availabie on the record, and submissions of the parties, awarded total amount of Rs. 12,044/- as compensation jn favour of the appeltant. Learned counsel for the appellant would submit that although the Doctor has not been examined in this matter, but looking to the fact that the appellant sustained multiple injuries, and amount awarded is shockingly on lower side, this appeal may be allowed and the amount of compensation be enhanced. 1 have heard the learned counsel appearing for the appellant and perused the award impugned. The Supreme Court in case of A.P. SRTC v. P. Thirupal Reddy, reported in (2005) 12 SCC-189, observed in para 6 as under: "SAfter hearing learned counsel for the respondent-claimant who made an attempt to support the order of the Hjgh 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 per cent. The High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy's medi'cal certificate was rejected by the Tribunal for non- .examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing 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." The Supreme Court in a recent dtetum in 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 certjficate 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 ^- |w» '(^' Court, therefore, proceeded on 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 same, in our opinion, cannot be permitted to be raised for the first time." 7. A Division Bench of this High Court in case of Pradeep Kuinar Sahu vs. Sarupa Sahu & another vide order dated 31 March, 2009, placing its reliance upon the dicta of Supreme Court in the cases referred above held in para 8 as under: "8. 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), the certificate produced before the Tribunal in the absence of examination of the Doctor issuing the certificate is neither admissible in evidence nor can be taken into consideration as substantive evidence for assessment of the compensation in the case." 8. Admittedly, the claimant in his own wisdom did not examine Doctor to prove the injury sustained in the accident and to prove the resultant loss. In view of the dicta of the above referred cases, the injury reports, certificates produced, in the absence of examination of the Doctor issuing the injury reports, certificates are neither admissible in evidence nor can be taken jnto consideration as substantive evidence for enhancement of compensation in the case. 9. For the reasons mentioned herejnabove, 1 do not find any scope for enhancement of the compensation awarded by the Tribunal. 10. The appeal filed by the appellant for enhancement of the compensation is therefore liable to be and is hereby dismissed. No order as to costs. —— Sd/- N.K. Agarwal Judge Sahu