^^•yu.^.,1 IN THE HIGH COURT OF 3UDICATUREAT BILASPUR TC.G.^ MISC. APPEA1- fQNO. ^4^ OF 2008 APPELLANT ^ Claimant ^ : ^Dageshwar @ Dakeshwar S/o. Dujram aged about 19 years, r/o. Village - Chirpoti (Chitrakot),near Village - Bhendarwani, Tahasil- Bhakhara ( Kurud ) Distt.- Dhamtari (C.G.) VERSUS RE^PONDENTS. ^ A.-" l^ Aditya Singh S/0 Tiket Singh Gaur, aged about 20 Years. r/o. Village - Bhakhara,, Tahasil- Kurud, Distt.- Dhamtari (C.G.) ( Driver ofthe Vehicle No. CG-05 A-5990 ) ^ Vinay Kumar S/o. Ramesh Kumar By Caste - Kela, r/o. Village - Sihad, Post - Bhakara , r/o. Village Chirpoti (Chitrakot),near Village - Bhendarwani, Tahasil- Bhakhara ( Kurud ) Distt.- Dhamtari (C.G.) ( Driver ofthe Vehicle No. CG-05 A-5990 ) !<'' Senior Divisional Manager, The United India Insurance Company, Ltd. Kachahari Chowk Jail Road, Mobin Mahal Raipur, Distt.- Raipur (CG). (Insurer of the Vehicle No. CG-05 A-5990 ) MEMORANDUM OF APPEAL UNDER SECTION 173 OF MOTOR VEHICLES ACT FOR ENHANCEMENT OF THE AWARD AMOUNT. t ^' 3?!^r'^T ^Jch ^n OT^T sh^i^i ^^ ^ww^, ^•^\w\^, [®l<rH^^< 'tr?^irw^R"""""'""""""""""""""'""""""^20o 3n^T Tra^? (^i^^?) '^??w^f^ ^n^r BB;HON._SHmjUSTICE|,N,K,_AGABWAL 18-9-2009 Shri Simil Sahu, Ad^ocate, for the appellai-it. Heard on I.A. No. 1, 2. compensation awarded ^i^i^^N 'RTR^t'^f tt^A <r3t<^i< '^'stfw^n^T application for condonation of delay of 94 days in filing tlie apj()eal. On due considerati4n, I am satisfied that the appellant has succeeded in explaini|ig the delay caused in preferriug the appeal. Therefore, tlie appl|cation is allowed. Delay caused in filing the appeal is condoi-^ed. Heard on admissionl Appellant/ clamian|: is seekiiig enhancenieut of the py the Additional Motor Accident Claims Tnbunal, Dhamt^ri (for short "the Tribunal?i) vide award dated 27-7-2007 p^ssed in Claim Case No. 545/2004. 3. As against the com^ensation of Rs. 11,76,000/- claimed by the appellant/ cloim^iit by filing a claim petition under Section 166 of the Mc^tor Vehicles Act for the injuries sustained by hhn ia fhe| Tribunal awarded a total 6% from fhe date of applicj motor accident on 13-5-2004, the ^um of Rs.25,000/- witfa interest @ |ation as compensation. ^TI^T^^^ ^^n^m^Ri^m^—FS/95—11 /.2G08—1,00,009. 3?i^R^'f^W •CTISn^IsPWF -3-5c( ^jt^ld'''?, ^Tlri^<l^, f<Bt<rtl^3'[ •m^ff'^1?N? g^T-q^FC^5^1) 4 ^^TW"5srf^3?T^r Leamed ••^200 ^lfepNW^ ^ It^ ^R?R •^3TfW3^T )r the appellant vehemently ai^ued tliat tfae Tribunal has er|:ed in awarding low compensation of Rs.25,000/- only, where^s the appellaiit/ claimant sustained serious injuries in the m^tor accident. 5. For tlie reasons be^t known the appeUant / claiinant no doctor was examined b^fore the Tribunal to establish the natiire of tlie injuries s^ those mjuries resiilted iii iid to have been sustained by the appellant/ claimmit in tljie motor accident aiid the fact that ^ny permaaent disability. 6. The question whettjer the medical certificate produced by the claiaiant before t^ie Tribunal wifliout examining the Doctor who issued fhe |certificate caii be reMed upon as substantive evidence for t|ie assessment of tlie compensation came up for consideration| A.P. SRTC v. P. Thimpalt ibefore ti.ie Apex Court in the case of |Reddy, reported in (2005| 12 SCC 189, wherein it was obsen|ed in para 6 as under : "6. After hearu(ig learned coimsel for the respondent-claims|nt who made an attempt to support the or^er of the High Court, we find that there w^s no justification for the High CoLut to rely{on the disabilit^r certificate issued by Dr. Sud|iakar Reddy and enhance the compensation | by treating the injury as permanent disabil^ty to be 45 per cent. The High Court cosimitted eross errQr_Jn ^T^^ ^^ ?[^TO54^^Rt^lt^—I7S/95—11/200-^—1 ,00,000. •3'^f ^it^!d<LI, <^xi1^4Ko, [^Kni^y <nwis »»*ii<i» •^200 ^TI^T rf^K (^(^^) 311^1 ^T i<tlioh Wi? ^H^T 5»»*iic(» lF<ffWTtf^TW^T cbl^fd4)4 'W^ff tf 'ft%t '^R?R ^^RR 3??^r overlooking the fact that Dr. Sudhakar Reddv's medical certiflcate was rejected by the Tribunal fot non-examination of that doctor. The Trf zmal has^ determined_tee physical disabilitt^ at 15 per cent on the basis of the depositida of Dr. K.M. Mitra and awarded a iust tod fatr couipensation. The High Court erred! in disturbing fhe same and enhancins the c' inipensation. Consequently, ap^eal 7. we allow this order and resto4 Tribmial. The to withdraw thd awarded by the ^ been withdrawn/I The Apex Court in ^ set asicle the inipugned the award of the Claims Dondcut-claiinant is allowed amount of compensation ^ibuual^ if it has not already resbondcut- rccent dictum in the case of Kumar alias Rajii v. Yu^hvir Siagh aad aaother, reported in (2008) 7 SCC 305, following observations in Ireiterated the sanie view with the t?ara 11 : "11. The case was obtain^c known as to whefl- hospital treated | basis, such a after the acciderft; The author of cerftfficate in question in tliis ;d after two years. It is not the Civil Surgeon ofthe the appellant. On what was issued two years took place is not known. said certificate had not whether certificate t}ie been examined. Unless the author of the certificate examjned hiinsetf, it was not adiiiissible in evidence. Whether the disability at 60% of the provisi [was calculated on the basis .bns of fhe Workmen's W^T^ ^^ ^Ti^<T<^Rr^N—FS/95—11/2008—l ,00,000. "^^ ^it^ld^ ^Tll^'t^ f®l<^S<H^< 'sm^Tiim^ •'^200 3TI^?I-q^T(rta<^f) .(irafe^-W^f-^ 1^^-^R?R it? 3tfm 3R1^T Compensation ^ competent to iss ct or otiienvise is not known. It is also not kbo%Tn as to whether he was .ue such a certificate. It even . Ir does not appemt tllat the contentions reised before us had ^itiier been raised before the 3 |High Court. The Tribunal as |)Urt, therefore, proceeded on |)rought on record by the tice of any contention having Tribunal or the also the Higyh C( the materials parties. In absei been raised ta i^gard to the applicability of the Workmen's ^ompensation Act which, in our opinion, ex facie has no application, the saine, in our opitiion, caiinot be peniiitted to be raised for the Elrst time.9? 8. In this case, fhe ap^ellant has not proved disability. It is not proved as to how m spent ui treatinent and, circumstances of the cas] ly days the appellant remained in hospital. It is also not {|roved as to how much amoi.int he |lierefore, considering tiie facts aiid ;, particularly when the doctor has not been examined to p^-ove the mjmy and certificates, aii aniouut of Rs. 25,000/- |ias beeu awarded as compensatiou t.o the claimaiit, 9. In view of the abov^ quoted dicta of the Apex Court in the cases of A.P. SRTC ^. P. Thirupal Reddy (Supra) aiid Rajesh Kumar alias Raj|ii v. Yudh^ir Sia^i and aaother (Supra), the ceilificate pi|oduced before the Tribunal m the absence of examination ofjthe Doctor issuing the certificate is ^^^^^ 3T^n-^ri^Ht^f^—FS/95—l 1 / 2008—1,00,000. ^''^3^^: i!l ' t "^"l I l-'.. '^\ '%.^^' ^-^•^.^ .^^^ s?i^T^?^ri^ ^^T 3?!^?T ^"Rl^ 91 "3'SI "41'41d<4, ^'H^Ko, is«ni-M1< 'WIWiR^W ••^200 ^?T1(T?W (^t^<^) ^RHW^ter 317^1 neither admissible in consideration as substad ^N^PN-WRTf ^-tt<^ Tf^R ^3?RyH3?1^T svidence nor can be taken into jtive evidence for assessment of the compensation in the casej 10. For the foregoing r^asons, I do not find any scope for enhancement of the comp^nsation awarded by the Tribmial. 11. The appeal filed by the appellaiit/claimant. for enhancement of the comJ3ensation, tlierefore, is Mable to be dismissed and is hereby djsmissed. 12. No order as to costs. 1 Sd/- N. K. Agarwal Judge >T;rfl^^^ 5T^j[r^^<T^RT^TR—FS/95—11/2008—1,00,000.