HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH i I CORAM: HON’BLE SHRI RAJEEV GUPTA, CJ. HON’BLE SHRI SUNIL KUMAR SINHA, J. Misc. Appeal No. 1182 of 2005 Appellant 'Claimant I II“- Respondents iNon-applicants I I l ,Sheh Iqbal, s/o Sheikh Bapu Miyan, aged about 42 yrs., R/o near water tank, Bajrangnagar, Raipur. VERSUS Anish Thakur, s/o Dayanath »aged about 37 yrs., R/o Pachpedi Naka, Tahsil & District Raipur C.G. Kuldip Singh, S/o‘ Mota Singh, Gill Road Carrier, Telibandha, Raipur. The New India‘lnsurance Co. Ltd. through Divisional Office, Kachahari Chowk, Raipur. ‘ ; MEMORANDUM ,OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT a Present: Shri A.L. Singraul, counsel for the appellant. i Shri Sudhir Agrawal and Shri P. Dutta, counsel for i ‘ respondent No.3. l ORDER (28m March, 2011) The following order of the Court was passed by Rajeev i Gupta, C.J. I 1 I I Appellant] claimant — Sheikh Iqbal is seeking enhancement f the compensation aWardedrby the Ninth Additional Motor ik o @ , Acc%dent Claims Tribunal, Raipur (for short ‘the Tribunal’) vidé award dated 30.07.2005, passed in Claim Case No.59/2005. ‘ 2) As against the Compensation of Rs.24,00,000/- claimed by theiappellant/ claimant, by filing a claim petition under Section 166 r l he Motor Vehicles Act for the Injuries sustained by him In the moitor accident on 31 08.2002, the Tribunal awarded a total sum of \ RS1 33,671I- as compensation along with interest @ 6% per i ‘« ‘ annum from the date of filing of the claim petition till the date of actiual payment. . 3)} Shri A.L. ‘Singraul, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.1,33,671/— only though the appellant/claimant sustained multiple serious injuries including fractures in the motor accident resulting in permanent disability to the extent of 40%. ’ 4)‘ Shri Sudhir Agrawal and Shri P. Dutta, learned counsel for. resfpondent No.3, the New lndia Insurance Company Limited, on thtie other hand, supported the award and contendedthat the ‘7 cdmpensation of Rs.1,33,671/— awarded by the Tribunal is just and prpper compensation in the facts and circumstances of the present case. 5)? Before the Tribunal the claimant examined himself alone as 7 AW1 in support of his claim For the reasons best known to the claimant no doctor was examined before the Tribunal to establish he nature of the injuries said to have been sustained by the l w\ t claimant In the motor acc1dent and the fact that those Injurie esLlted In any permanent dlsablllty 6) The question whether the medical certificate produced b th ciai ant before the Tribunal without examining the Doctor wh issued the certificate can be 'reiied upon as substantive evidenc for he assessment of the compensation came up for consideration before the Apex Court in the case of A.P. SRTC v. P. Thirupl Recidi reported in (2005) 12 SCC 189, wherein it was observed i para 6 as under : i “6. ;cla‘mant who made an attempt to support the order of the High Court, we tindthat there was no justification for th High Court to rely on the disability certifcate issued by Dr S R y udhakar eddy and enhance the compensation b ‘treatmg the injury as permanent disability to be 45 per cent ‘The High Court committed gross error in overlooking the fac that Dr Sudhakar Reddys medical certifcate wa ireiected by the Tribunal for non examination of that doctor ,The Tribunal has determined the phySicai disability at 15 , lper cent on e aSis of the deposmon of Dr K M Mitra and awarded a iust and fair compensation The High Cou erred in disturbing the same and enhancing th compensat' ‘ . Consequently, we allow this appeal set aSIde the impugned order and restore the award of th Claims Tribunal he respondent—claimant is allowed to Withdraw the amount of compensation awarded by th Tribunal if it has not already been Withdrawn " 7 Te Apex Court in a recent dictum in the case of Rajesh umar alias Raju v YudhVIr Singh and another reported 4 a After hearing learned counsel for the respondent- i e X. ,l ,J @ s r ; y e o e a n t th b e T e ) h K in “a l‘i7¥_ @ (2008) 7 SCC 305, reiterated the same view with the following obse‘rvations in para 11 : i i “11 The ceitificate in question in this case was obtained after two years it is not known as to whether the Civil §urgeon of the hospitai treated the appeliant On what b it certifcate had not been examined Unless the author of the l certifcate examined himself It was not admISSIble In‘ I asus such a certifcate was Issued two years after the- ccudent took place is not known The author of the said tevidence. Whether the disability at 60% was calculated on ‘the basis of the provisions of the Workmen’s Compensation 3Actbr otherwfse is not known. It is also not known as to Iwhether he was'competent to issue such a certificate. It leven does not appear that the contentions raised before us, /;had either been raised before the Tribunal or the High’ lCourt. The Tribunal as also the High Court, therefore, lproceeded i on the materials brought on record by the fparties. In absence of any contention having been raised in ‘regard to the applicability of the Workmen’s Compensation iAct which In our opinion ex faCIe has no appllcatlon the I lsame In our opinion cannot be permitted to be raised for Ithe first time. 8) The medical certificate and the disability certificate produced by the Claimant before the Tribunal without examining the doctors whoghad issued those certifICates in view'of the above quoted dicta - ~ 'of the Apex Court In the cases of A P SRTC v P Thlrupal Reddy (Supra) and Rajesh Kumar allas Raju v YudhVIr Slngh and another (Supra) cannot be taken Into conSIderatIon for? enhancement of the compensation In the case r ym \ 9) E We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal. i 10) The appeal filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. 11) -No order as to costs. , Sdl— Scu- Sunil Kumar Sink} ) its Judge a ‘t Chief Justicé: subbu t n" I v ""’ i i