^: IN THE H2GH COURT GF JUDICATtJRE AT BILASP?K (C_.G<_1 MISC. APPE*AL(C) N0. [If^ OF 200^ APPEI.LAm' NPM-CIAIMANT €..' Ax;fel Ram Yadav»son of Rohalla Ram RXSPONDBNT jeiAIMANT ^ ...--sw^ ^.^l^ ^" yadav»aged abo^t 50 years» resideat of Bathenapara WardyDhamtari, Districfc-e>hamtari(C«G») VE R S US Shyam Lal sahu» son o£ Koda Ram ^fsah»2,ag€dabo^it 55 years ^resident of Villege ~Nawagaon,Post-Naroiid, PolJlce Station end Tehsil-Ku^rad^ DistrictN€>hamtari»(C»G») ^ ..A^ ^^!I...' A®&''MISC. APPEAL UNDER SECriON'"173 OP MGTOR VEHICI-E ACF< ^^^^, '^ & IN^ o^- HIGHCOURT OF CHHATTISGARH AT Misc. Appea! (C) No. 1668 of 2008 APPELLANT Npn-LCSajmant RESPONDENT CSaimant Arti Ram Yadav VERSUS Shyam La! Sahu (APPEAL UNDER SECTION 173 QF THE MOTOR VEH!CLES_ACT1 (SB: Hon'ble Mr. N.K. Aaarwal, JJ Present : Shri Sanjeev Banjare; Advocate for the appeHant. None for respondent though served. ORALORDER (Passedon 18.08.2011) This is owner's appea! against the award dated 23.03.2007 passed by Additionai Motor Accident Claims Tribuna!, Dhamtari (for short 'the Tribuna!') in claim case No. 175/04. As against compensation of Rs. 4,41,000/- claimed by the respondent/claimant by filing appiication before the Tribunal under Section 166 of the Motor Vehictes Act, 1988 (for short 'the MV Act') for the injuries sustained by him in the motor accident dated 20.08.2003; the Tribunal assessed and awarded total sum of Rs. 89.000/- along with interest @ 6 percent per annum from the date of application till its actuat payment. The Tribunal, on a ciose scrutiny of the evidence ted, held : accident had occurred due to rash and negligent driving of driver of motorcycie bearing registration No, CG-05-2869; and assessed & awarded a tota! sum of Rs. 89,000/- as compensation in favour of respondent/daimant as against the present appellant. •Hi f I—'-^T^^ . 1 I ^p^ 1 ?1 r^ 1 8. Shri Sanjeev Banjare, learned counse! appearing for the appellant would submit : neither the treating doctor nor the doctor who has issued disabillty certificate VA/as examined in the case; the accident had occurred on 20.08.2003, whereas the disability certificate was issued on 23.08.2004; in the absence of examination of treating doctor it cannot be said that respondent suffered permanent disabi!lty on aceount of injuries sustained by him in the said accident therefore the Tribuna! has erred in awarding compensation towards future toss of income by assessing the same by applying multipiier method. 1 have heard the counsel appearing for the appeliant and perused the award impugned as well as records of the Tribunal. The Tribunal; on appreciation of the evidence has held that accident had occurred due to rash and negilgent driving of offending motorcycle by the appeilant. The above fjnding is based on proper appreciatlon of evidence led in the case and the same does not catl for any interference. Though, the respondent/claimant has pieaded that he suffered permanent disability in the said accident, but failed to substantiate the same by examining the Doctor who treated him. The Supreme Court in case of A.P. SRTC v. P. Thirupal Reddy, reported in (2005) 1 2 SCC-189, obsen/ed in para 6 as under: "SAfter hearing learned counsel for the respondent- claimant who made an attempt to support the order of the 9 ! 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 disabiiity to be 45 per cent, The High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy's medical certifjcate 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. Consequentty, we aliow this appeal, set aside the impugned order and restore the award of the Claims Tribunai. The respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn." 9. The Supreme Court in a recent dictum in caseof Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view wlth the foilowing 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 Ch/ii 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 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 Tribunal as also the High Court; therefore, proceeded on the materials brought on record by ^ p—^ the parties, In absence of any contention having been raised in regard to the applicability of the WorRmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinson, cannot be permitted to be raised for the first time," 10. This Court in case of Pradeep Kumar Sahu vs. Sarupa Sahu & another vide order dated 31 st March, 2009, piacing 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. Thirupaf Redciy (suprQ) and Rajesh Kumar allas Raju v. Yudhvir Smgh an^ another (supra)^ the certiflcate produced before the Tribunal in the absence of examination of the Doctor issuing the certiflcate is neither admissible in evidence nor can be taken into consideration as substantive evjdence for assessment of the compensation in the case," 11. Admittedly, the daimant in his own wisdom did not examlne Doctor to prove the injury sustained in the accident and to prove the resultant ioss. !n view of the dicta of Supreme Court in the above referred cases, the injury reports, certjficates produced, in the absence of examination of the Doctor issuing the injury reports, certificates are neither admisslble in evidence nor can be taken into consideration as substantive evidence. 12. The Tribunal has awarded Rs. 15,000/- towards special diet, transportation and attendant, Rs. 15,000/- towards pain and sufferings, Rs. 5000/- towards loss of income during treatment, i^ ^^ Rs. 5000/- towards future treatment and Rs. 49,000/- towards future loss of income. 13. Considering every aspects of the matter, in the considered opinion of this court, in absence of any lega! evidence, the Tribunal has erred in awarding Rs. 49,000/- towards future loss of income on account of permanent disability alteged to be suffered by the respondent/claimant. Even the respondent has not filed any papers showing that he was having agricuitura! land. However, in the opinion ofthis court, the amount awarded for loss of income during treatment should be Rs. 14,000/- in place of Rs. 5000/-, and therefore, respondent is entitied for Rs. 14,000/- in p!ace of Rs. 5000/- on account of loss of income during treatment. 14. For the reasons mentioned hereinabove, the appeal flted by the appellant/owner is allowed in part. The compensation of Rs. 89,000/- awarded by the Tribunal is reduced to Rs. 59,000/-. Rest of the conditions mentioned in the award sha!! remain intact. The award stands modified to the above extent. 15. No order as to costs. Sd/- N. K. Agarwal Judge Sahu