IN THE HIGH COURT OF JUDICATURE AT BILASPURfC.G) .JW4s MISCELLANEOUS APPEAL N0: >005 ^ r" ^PPELLANT CLAIMENTS X'ESPONDENTS y/Non-applicants .1. Bhimbali Sahu,S/o. Chinta Ram Sahu aged about 20 years, R/o Village & P.0. - Rasauta, Police Station - Palari District - Raipur (C.G.), P.A. Village & Po. Urla, Distict - Raipur (C.G.) VERSUS Sunil Shankar, S/o Ramashankar Mahalwar/Through - Ramdayal S/o Suman, Mohan Halba, R/o - 52/10, Near National Convent School, Ring Road, Raipur, Tahsil & District - Raipur (C.G.), Driver ofTata Sumo No. C.G. 17/ZD 0647 2. Ramdayal, S/o Suman Mohan Halba R/o - 52/10, Near National Convent School, Ring Road/ Raipur,Tahs|l & District - Raipur (C.G.) Owner ofTata Sumo No. C.G. 17/ZD 0647 k Bajaj Ajaiance General Insurance Co. Ltd. Chauhan Complex, In front of Rajkumar College, Raipur( Tahsil & District - Raipur (C.G.) Insurer of Tata Sumo No. C.G. 17/ZD0647 ^^ . Miscellaneous ADpeai under/section 173 Motor Vehicle Act 1988 f ^ •^-y . T HIGH COURT OF CHHATTBGARH AT BILA8PUR M.A. No. 1424 OF 2005 Appellant Claimant Resoondents Non- apDlicants Bhimbali Sahu Versus Sunil Shankar & Others APPEAbUNDER SECTION 173 OF THE MOTOR VEHK)LES ACT. (SB: Hon'bte Mr. N.K. Aaarwal. J.l Present : Shri AdftyaKhare, Advocates for appellant. None appears for respondent No. 1 & 2. Shri Dashrath Prajapati, Advocate for respondent No.3. ORALORDER (Passed on 13th day of January, 2010) 1. Heard on M(0)PNo. 1738/05. applicatlon for condonation ofdelay in filing the appeal. 2. On due consideration, 1 am satisfied tfiat the counsel for appellant has succeeded in explaining the delay caused Sn fillng this appeal. Accordingly M(C)P No. 1738/05 is atlowed and delay caused in filing the appeal is hereby condoned. 3. The instant appeal has been preferred by the appellant, seeking enhancement of compensation against the award dated 27.04.2005, passed by the Vth Additional Motor Acctelent Claims Tribunal, Raipur (for short Tribunal') in claim case No. 23/04. 4. The bn'ef facts of the case according to the appellant are that, on 06.12.2003, the appellant met with an accident wtth Tata Sumo bearing registration No.CG-17/ZD-0647, due to which the appeltant sustained injuries. 5. The appeltant preferred an application before the Tribunal under Section 166 of the Motor Vehictes Act, claiming compensation to the tune of Rs. 4,58,000/- for the injuries sustained by him on account ofthe said accident. 6. The Tribunal, on a close scrutiny of the evidence led by the parties, the material available on the reccffd, and submisslons of the ^^^^^; iSyg^g, •^,^^^ WS :^ W^ ~^:mw^-^' parties, awarded total amount of Rs. 18,000/- as compensation in favour ofthe appellant. 7. Learned counsel for the appellant wouldsubmit that although the Doctor has not been examined in this matter, but looking to the fact that the appellant sustained grievous injury, and amount awarded is shocking on lower side, this appeal may be allowed and the amount of compensation be enhanced. 8. I have heard the learned counsel appearing for the appellant and perused the record. 9. The Supreme Court in case of A.P. SIPTC v. P. Thhvpal Redety, reported in (2005) 12 SCC-189, observed in para 6 as under: / "6. After hearing tearned 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 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 commHted gross error in overiooking the fact ttiat Dr. Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disabilityat 15 per cent on the basis of the deposition of Dr; K.M. Mitra and awarded a just and feiir 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." 10. The Supreme Court in a recent dictum in case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported fn (2008) 7 SCC 305, reiterated the same viewwlth the following observations in para 11: "11. The certificate in question Sn this case was obtained after two years. It is not known as to whether the Civit 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. Untess the author of th©certificate exarained 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 cohtentions 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 re&?-^t.: i?%nu ^-;:3: .-^ i,M^M^^ ,^^^?s;,''- record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act whteh, in our opinion. ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time." 11. A Division Bench of this High Court in case of Pradeep Kumar Sahu vs. Saivpa 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. InvlewofttieabovequoteddictacrftheApexCourtin the cases of AP. SRTC v. P. Thlrupal Reddy (supra) and Rafesh Kumar allas Raju v. YwShvlr Slngh and another (supra), the certificate produced before the Tribunal in the absence of examination oftheDoctor issuing thecertificate is neither admissible in evidence norcan be taken Snto consideration as substantive evidence for assessment of the compensation In the case." 12. 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 into consideration as substantive evidence for enhancement of compensation in the case. 13. For the reasons mentioned hereinabove, l do not find any scope for enhancement ofthe compensation awarded by the Tribunal. 14. 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