HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH e -^ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. HON'BLE SHRI RANGNATH CHANDRAKAR, J Misc Appeal tC) No.307 of 2010 Appellant DP Dhruw, aged about 54 years, s/o Claimant late Mohanlal, r/o Dudhnadj Colony, Kanker Distt UP Kanker VERSUS Murad Ali, aged about 20 years, s/o Sarvar Ali, r/o Shayama Nagar, Tikarapara, Distt UB Kanker Sheikh Aas'if, aged about 38 years, s/oSheikh Ahmed, by Caste Musalman, r/o Shitlapara, Kanker National Insurance Com. Ltd., through Branch Manager, near Central Bank, near RMS Office, Jagdalpur The Oriental Insurance Co Ltd., Branch Office, near Adarsh Balmandir, Main Road, Dhamtari Miscellaneous Appeal under Section 173 of MotorVehicles Act Respondents Driver Owner Insurer Present : Shri Parag Kotecha and Shri Yogesh Chandra, counsel for the appellant. Shri RN Jha, counsel for respondents No.1 and 2. Shri BN Nande, counsel for respondent No.3. Shri Raj Awasthi, counsel for respondent No.4. ORDER (05th August, 2011) The following order of the Court was passed by Rajeev Gupta, CJ. -=---—G ,,l.^-g^^\'^ '/^s^si t 1 1 y^^ j tt:,,.^^y MACNo.307 of 2010 t-' c' This is claimant's appeal for enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Kanker (for short 'the Tribunal') vide award dated 07.01.2010, passed in Claim Case No.18/2009. 2) As against the compensation of Rs.4,25,000/-, claimed by the appellant/claimant by flling a claim petition under Section 166 of the Motor Vehicles Act, for the injuries sustained by him in the motor accident on 15.10.2008, the Tribunal awarded a total sum of Rs.1,05,700/- as compensation along with interest @ 6% per annum. 3) Shri Parag Kotecha and Shri Yogesh Chandra, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.1,05,700/-, though the appellant/claimant sustained multiple serious injuries including fractures in the motor accident resulting in permanent disability. 4) Shri BN Nande, learned counsel for respondent No.3 the National Insurance Company Limited, the insurer of the offending vehicle Hero Honda Splendor bearing registration No.CG 19 B 4455, on the other hand contended that, as the claimant could not establish that the injuries sustained by him in the motor accident resulted in any permanent disability, the compensation of Rs.1,05,700/- awarded by the Tribunal cannot be termed as inadequate so as to warrant enhancement in this appeal. ..^•:y^ MACNo.307 of 2010 -^' & 5) Shri RN Jha, learned counsel for respondents No.1 and 2, the owner and driver of the Hero Honda Splendor and Shri Rsu Awasthi, learned counsel for respondent No.4 the Oriental Insurance Company Limited, the insurer of the claimant's motorcycle also supported the award. 6) Before the Tribunal the claimant examined himself alone as AW/1 in support of his claim. For the reasons best known to the claimant. no doctor was examined before the Tribunal to establish the number and nature of the injuries proved to have been sustained by the claimant in the motor accident and the fact that those injuries resulted in any permanent disability. 7) The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who jssued the certiricate can be relied upon as substantive evidence forthe assessment ofthe 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 Migh 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 jn overlookina the fact that Dr Sudhakar Reddv's medical certificate was reiected bv the Trrbunal ^ ^y^'-.^;\ y^ MAC No. 307 of 2010 c. c- for non-examination of that doctor. The Tribunal has determined the phvsical disabilitv at 15 per cent on the basis of the deDOsition of Dr KM Mitra and awarded a iust and fair comDensation. 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." 8) 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 thesame 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 MACNo.307 of 2010 © c t 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 opjnion, ex facie has no application, the same, jn our opinion, cannot be permitted to be raised for the first time." 9) The medical certificates produced by the claimant before the Tribunal without examining the Doctor who had issued those certificates 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), cannot be taken into consideration for enhancement of the compensation in the case. 10) From the Tribunal's records we gather that the Tribunal vide order dated 27.10.2009 granted permission to the claimant for examination of Dr Sunil Khemka on commission. Thereafter, surprisingly, the claimant on 13.11.2009 expressed before the Tribunal that he does not desire to proceed further with the examination of Dr Sunil Khemka on commission and the claimant closed his evidence on 13.11.2009. Thus, it is apparent that the Tribunal granted more than sufficient opportunity to the claimant for examination of all his witnesses including the doctor. 11) For the foregoing reasons, we do not find any scope for enhancement ofthe compensation awarded by the Tribunal. M. MACNo.307 of 2010 @ •adma 12) The appeal filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. 13) No order as to costs. Sd/- Chief Justice Sd/- R.N. Chandrakar Judge (--.