F— ^^ \\ ^) HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUFTA, CJ. HON'BLE SHR! N.K.AGARWAL. Ji Appellant IVIisc. Appeal (Cl No.714 of 2007 Vijay Kumar Varma, S/o Mohan Lal Varma, age - 23 years, R/o Village Rawan, PS Baloda Bazar, Distt Raipur VERSUS 1 The New India Insurance Company Baloda Bazar, Distt Raipur 2 Bhojram Varma S/o Ram Kishan Varma, age - 32 years, R/o Village Posri - near Rawan PS Baloda Bazar, Distt Raipur (CG) Appeal under Section 173 of the Motor Vehicles Act. Respondents Present: Shri A.P. Sharma, counsel for the appellant. ORDER ith (11l"September,2009) The fottowing order of the Court was passed by Rajeev Gupta, C.J. Shri A.P. Sharma, learned counsel for the appellant is heard on admission. / 2) Appellant Vijay Kumar Varma is s^king enhancement of the compensation awarded by the First Additional Motor Accidents Claims Tribunal, Baloda Bazar (for short 'the Tribunal') vide award dated 24.02.2007, passed in Claim Case No.215/2006. 3) As against the compensation of Rs.6,77,000/- claimed by the appellanV claimant by filing a claim petition under Section 163-A of the Motor Vehicles Act for the injuries sustained by htm in the motor accident on 13.02.2006, the Tribunal awarded a total sum of Rs.55,000/- as compensation along with interest @ 7% per annum from the date of filing of the claim petition till the date of actual payment. 4) Shri A.P. Sharma, learned counsel for the appellant vehemently argued that the compensation of Rs.55,000/- awarded by the Tribunal is too tow in comparison to the serious nature of the injuries including fractures sustained by the appellant/ claimant in the motor accident. 5) Though the claimant examined two witnesses including himself (Aw-1 Vijay Kumar Varma and AW-2 Mahendra Varma) in support of hisclaim before the Tribunal, for the reasons best known to the appellant/ ctaimant, no doctor was examined to establish the 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 disability. 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 v, P. Thirupal Reddy, reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under: "6. After hearing leamed counsel for the respondenf- 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 ceri:iricate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 per cent. The Hiah Court committed aross error in overlooking the facLAhat Dr. Sudhakar Reddy's medical certificate was reLecled^b^the Tribynal for non-examination of that doctor. The^TnDynaLhas determined the phvsical disabilitv 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^ Jn disturbina 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-ctaimant 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 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 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 admissibte in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation /^\ H; ^^is^^ K. 'W^ l-t':^ '•" ^..f"- 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 raisect before us had either been raised before the Tribunat 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 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." 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 medical certiflcate and the disability certificate produced by the appellanVclaimant before the Tribunal without examining the Doctors who had issued those certificates, 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 appellanV claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed summanly, ,~- Sd/- ^ ChiefJustice | Sd/- N.K.Agarwal Judge subbu