© IN THE HIGH COURT OF JUDICATURE AT BILASPUR fC.G.) APPELLANT : Claimant .^f;^^ ^;.^ '^•"" ,...^%i.v<)^ ^— ^^;-J.^M M.A.(C) |^^/2009 , Devendra Vishwakarma (Minor), aged ^" about 15 years, S/o. Nand Kumar Vishwakarma, Through : it's natural guardian Nand Kumar Vishwakarma, aged about 48 year, Son of Jivrakhan Vishwarkarma, R/o. Ishwar Nagar, Post and P.S. Tikarapara, Raipur, Tahsil and District Raipur (C.G.) VERSUS RESPONDENTS 'NON-CLAIMANTS f^fr) Ganesh Sahu, aged about 46 years, S/o. Tulsi Ram Sahu, Occupation Driver, R/o. Devendra Nagar, Behind Maszid, P.S. Devendra Nagar, Tahsil and District Raipur (C.G.) ):) Girdhar Lal Soni, S/o. Nandkishore Soni, R/o. Gali No.1, Naya Talab, Gudiyari, Raipur District Raipur (C.G.), The Oriental Insurance Company Limited, Through : The Divisional Manager, Division Officer No.1, Madina Manzil, Katchhari Chowk, Jail Road, Raipur (C.G.), 3,.- ^ Miscellanceous ADpeal under Section 1 73 of the Motor VehicleAct, 1994 - -^^_^.___Ll___^-E^^J ^ ^ HIGH COURT OF CHHATTISGARH AT BIIASPUR M.A.fQNo. 1449 of2009 APPELLANT RESPONDENTS Devendra Vishwakarma (Minor) VERSUS Ganesh Ram Sahu & others ^iss^ss^" (APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE8 ACT) fSB: Hon'ble Mr. N.K. Aearwal J.) Present : Shri Lokesh Singh on behalfofShri SC Verma, Advocate for the appellant. Shri Rakesh Sahu on behalfofShri Shivendu Paadya, Advocate for respondent No. 1 . Shri Vivek Rathore, Advocate for respondentNo. 2. Shri Varun Dubey, Advocate forrespondentNo. 3. ORAL ORDER (Passedon 15.09.2011) The instant appeal has been preferred by the appellant, seekitig enhancement of compensation against the award dated 30.04.2009, passed by the Xth Additional Motor Accident Claims Tribunal Raipur (for short 'the Tribunal') in claim case No. 94/2008. Bnef facts of the case according to the appellant are : on 14.06.2008 appellant met with an accident with TATA SE vehicle bearing registration No. CG-04-JA-6467 as a result of which the appellant sustained multiple injuries. The appellant preferred application before the Tribuaal under Section 166 ofthe Motor Vehicles Act, claiming compensation to the tune of Rs. 12,00,000/- for the injunes sustain^l by him ori account ofthe said accident. The Tribunal, on a close scrutiny of the evidenoe led by the parties, the material available on the record, and submissions of L -"-sy. 's^, w a? the parties, awarded total amount of Rs. 25,903/- as compensation in favour ofthe appellant. 5. Leamed counsel for the appellaat would submit the appellaat had sustained multiple serious injvries m the aecident but the Tribunal has awarded a meager sum pfRs. 25,903/- only which is shockingly on lower side and deserves to be suitably enhanced. 6. I have heard the leamed counsel appearing for the appellant and perused the award impugned. 7. The Supreme Court in case ofAP. SRTC v. P. Thimpal Reddy, reported in (2005) 12 SCC-189, observed in para 6 as under: <'"6.After hearing leamed counsel for the respondent-clainiant who made an attempt to support the order ofthe Higli Court. We find that there was no justification for the High Court to rely on the disability certificate issued by Dr. Sudliakai' Reddy and enhance the compensation by treating the injury as pennaneiit disability to be 45 pei' cent. Tlie Hi^i 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 Tribunal has determined the physical disability at 15 per cent on the basis ofthe deposition ofDr. K.M. Mitra aiid awarded ajust and fair compensation. The High Court erred in distiirbing tfae same and enhancing the compensation. Coxi^equently, we allow this appeal, set aside the impugned order and restore the award of fhe Claims Tribunal. The respondent-claimant is allowed to withdraw the amount ofcompensation awarded by the Tribunal, ifithas not akeady been withdrawn." 8. The Supreme Court in a recent dictum in case ofRajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11 : "ll.The certificate in question in this case was obtained after two years. It is not known as to whetlier tfae Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate \vas issued two years after the accident took place is not known. The author ofthe said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the a^ •^, -\-:^^. ^^ disability at 60% was calculated onthe basis ofthe provisions of the Workmen's Compoiisation Act or otherwise is xiot known. It is also not knovm as to whether he was competent to issue such a certificate. It even does not appear fhat flw contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded cn the materials brought oa record by the parties. In absence of any contention having been raised iii regard to the applicability ofthe Workiiieii's Compensation Act which, in our opimon, ex facie has no application, tlie same, in our opinion, cannot be pemiitted to be raised for the first time." 9. A Division Bench ofthis High Court in case QtPradeep Kutfwr Sahu vs. Sarupa Sahu <&. another vide order dated 31st March, 2009, placing its reliance upon the dicta of Supreme Court in the cases referred above held in para 8 as under: 6<>8. In view ofthe above quoted dicta ofthe Apex Court in the cases ofA.P. SRTC v. P. Thvupal Reddy (supm) and Rajesh Kumw aUas Raju v. Yudhvir Singh aad anotker (supra)^ the certificate produced before the Tribunal in tfae absence ofexamination ofthe Doctor issumg the certificate fe neither admissible iti evideiice nor can be taken mto consideration as substantive evidence for assessment of the compensation in the case." 10. Admittedly, the claimant in his own wisdom did not examine treating Doctor to prove the injury sustained m the accident and to prove the resultant loss nor filed disability certificate. Further, in view of the dicta of the above referred cases, the injury reports, certificates produced, in the absence of examination ofthe Doctor issuing the injury reports, certificates are neither admissible in evidence nor can be taken mto consideration as substantive evidence for enhancement of compensation in the case. 11. Appellant examined Dr. ML Garg to prove the document (Ex. P/20) alleged to be issued by Dr. Bheemmo Ambedkar Memorial Hospital, Raipur. However, Dr. Garg ©ouldnot prove the above document, inasmuch as, as per his statement pam-6, the above document neither bear his signature nor his ^ handwritmg and his name has wrongly been mentioned in the above document. 12. When the case is examined in the context of above broad features ofthe case, I do not find any scope for enhancement of the compensation. Accordingly, the appeal is dismissed. No order as to costs. Sd/- N.K. Agrawal Judge