^-.s y^sa IN THE HIGH COURT OF JUDICATURE OF CHHATnSGAgH AT BILASPUR ff M.A.fC.) No_ /2007 Appellant 0± ^•^^^^ ss^^"" Kartik Ram Gond S/o Late Thakur Ram Gond Aged about 35 years, R/o Village Siyadehi Post- Arroda, Tahsil & District Dhamtari (C.G.) Versus Respondents Gopi Ram S/o Narad Gond Aged about -20 years R/o Village Siyadehi Post- Arroda, Tahsil SE District Dhamtari (C.G.) v~ •3--(?< e^-^ar-t ' t ^BaAJo^S/o Dulrava(6aiyor) -!S^^: Aged about -60 years R/o Village Harftarai Tahsil 8s District Dhamtari (C.G.) The Oriental Insurance Co.Ltd. Near Adarsh Bal Mandir Balak Chowk, Tahsil SE District Dhamtari MEMO OF APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 t^- ^' i)- o llants/ CI ;GARH .A. iCtNo. 846 of 2007 Kartik Ram Gond Gopi Ram & Other; APPEAL UNDER SECTION 173 OF THE MOTOR VEHJCLES ACT d^! Shri Vivek Rathore, Advocate for appellant. Shri Sudhir Aarawal. Advocate for resoonde' 'r sa day of Fi by the appeliant; seeking iinst the award d; i Motor Accident Claims unal'1 in claim case No. on aai 1. The instant appeal has been prefem enhancement of compensation '.05.2007, passed by the Additi Trlbunal Dhamtari (for short 'the Tribunal') 128/06. 2. The brief facts of the case according to the appei'ant are that, on 11.03.2005, while the appellant v/as sitting in Tractor bearing registration No. CG-05/A/8365 and Troliey No. CG-05/A/8366, the said Tractor turned turtle due to which the appellant sustained multiple injuries. 3. T'ne appeliant preferred an appiication before the Tribunal under Section 166 o° the Motor Vehic!e6 Act, c'aiming compensation to the tune of Rs. 5,00,000/- for tae injuries sustained by hlm on sccount of the said accident. 4. The Tribunal, on a ciose scrutinyxsfthe evidence !ed by the parties, the material avallabie on the recofd, and submissions of the parties, awarded total amount of Rs. 1,000/- as compensation in favour of the aDDellant. 5. Learned counsei for the appel'ant would suhmit that »Ithoughthe Doctor has not been examined in this m"tter, but iooking to the faot that the appeilant sustained murt'pie injuries, and amount awarded is shocking!y on lower side, this appssi may be a'lowed and the imount of compensation be enhanced. 6. i have heard the learned counsel appearina for the appeliant and lerused the award impugned. 7. The Supreme Court in case of A.P. SRTC v. P. Thirupa! Redffy, reported in (2005) 12 SCC-189, observed in para 6 as under: "S.After hearing iearned counsel for the respondent-claimant who made an aSempt te support the order of the High Court. We find that there was no justification for the High Court to rely on the disability csrtificate 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 gross error in overlooking the fact that Dr. Sudhakar Reddy's medical certificate was rejected by the Tribunal for non- examination of that doctor. The Tribunai has detsrmined the physical disability at 15 per cent on the basis of the deposition of Dr. K.iVl. Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing thecompensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Clajms Tribunal. The respondent-claimant is aliowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been wlthdrawn." The Supreme Court in a recent dictum in case of Rajesh K! alias Raju v. Yudhvir Singh and another, reported in. (20081 7 SCC 305, reiterated the same view w'rth 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 hospitai treated the appeliant. 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 disabiiity 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 Tribunai as aiso 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 ^.. 9. ^ Compensation Act which, in our opinion, ex facie has no appiication, the same, in our opinion, cannot bs permittsd to be raised for the first time." 51 Mareh, A Division Bench of this Hiah Court in case of Praa Sahu vs. Sanipa Sahu & anothsr vide ordsr dated 2009, placing 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 the cases of A.P. SRTC v. P. Thi, of the Apex Court in Reddy (supra) and (supra), the certificate produced before the Tribunal in the absence of examination of the Doctor issuing the certificats is neither admissible in evidence nor can be taken into consideration as substantive evidence for assessment of the compensation in the case." 10. Admittedly, the claimant in his own wisdom did not examine Doctor to prove the injury sustained in the accident and to prove the resultant ioss. In view of the dicta of the above referred cases, the injury reports, certificates produced, in the absence of examinai-ion 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. 11. For the reasons mentioned hereinabove, l do not find any scope for enhancement of the compensation awsrded by the Tribunai. 12. The appeal Tiled by the appei! compensation is thereforeliable to b< order as to costs. for enhancement of th is herebv dismissed. Sd/- N.K. Agarwal Judge Sahu