HIGH COURT OF CHHATT18GARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ. HON'BLE SHRI SUNIL KUMAR SINHA, J. APPELLANT Claimant f 7-1 "1~^ Misc. Appeal No. 34 of 2002 : T.K. Chatterji,S/o Shri Lalit Mohan Chatterjj, aged about 53 years, Occupation - Service in M.P.E.B. (C.S.E.B.) as Asst. Engineer, Surajpur, P.8. & Tahsil Surajpur, Distrtet Surguja (C.G.) VERSUS Respondents 1. Dharam Kumar altas Dhirendra Non-applicanfs Kumar, S/o Krishna Kumar Gond, Oceupation Driver & Owner of Tractor NO.MP27B/3907 & Trotly Number MP27B/3908. R/o Village Pahargaon, P.S. Jainagar, Tahsll Surajpur, District Surguja (Chhattisgarh) DRIVER&OWNER 2 The Oriental Insurance Co. Ltd., Through the Branch Manager, Branch Officer Sadar Road, Near S.B.I. Ambikapur, Dlstriot Surguja (C.G.) INSURER APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT Present: Shri Atanu Ghosh, leamed counsel on behalf of Shri Ashok Kumar Shukla, leamed counsel for the appellant. None for respondent No.1 though served. Shri Sucthir Agrawal and Shri P. Dutta, leamed counsel for respondent No.2. ^8 QRDER (08th December, 2010) The foltowing order of the Coyrt was passed by Rajeev Gupta, C.J. Appellant/ claimant ~ T.K. Chatterji is seeking enhancement of the compensation awarded by the Additional Motor Accident Claims Tribunal, Surajpur, district Sarguja (for short the Tribunal') videaward dated 19.10.2001, passed in Claim Case No.118^000. 2) As against the compensation of Rs.25,00,000/- claimed by the appellant/ctaimant by filing a claim petitian under SectSon 166 of the Motor Vehicles Act for the injuries sustained by him 'm the motor accident on 08.05.2000. the Tribunal awarded a totat sum of Rs.40,284/- as compensation to the claimant along wi i interest @ 9% per annum from the date of filing of the claim petttion till the date of actual payment. 3) The Tribunal on a close scrutiny of the enttre e^dence ted before it held that claimant T.K. Chatterji sustained muttipte jnjuries in the motor accident on 08-05-2000; the acddent occurred due to rash and negligent driving of the driver of the offending vehtele Tractor-Trolley bearing registration Nos. M.P.-27B/3907 ard M.P.- 27B/3908, respectively; though the above Tractor-Trolley was insured with the Ortental Insurance Company Umfted, as the driver ofthe said Tractor-Trolley was not holding any vatid drtving Hcense on the date ofthe accident, the Insuranee Company was not liable to pay compensation to the clalmants and the liability in that behalf was that ofthe owner-cum-driver ofthe Tractor-Troltey. \ ^w .^T^, y^".. •"»»«£ 4) The Tribunal considering the number and nature of the injuries proved to have been sustained by the elaimant in the motor accident and the amount proved to have been spent on his treatment, awarded Rs.20,284/- towards medical expenses; Rs.15,000/- towards pain and suffering; and Rs.5,000/- towards special diet and other pecuniary damages. The Tribunal, thus, awarded a total sum of Rs.40,284/- as compensation to the claimant. The Tribunal further directed payment of interest on the above amount of compensation of Rs.40,284/- @ 9% per annum from the date of filing of the claim petition till the date of actyal payment. 5) Shri Atanu Ghosh, learned counset fbr the appellant vehemently argued that the Tribunal has erred in exonerattng the insyrer of the Tractor-Trolley from ite liabiltty to pay coropensation to the claimant; and in awardlng low eompensation of Rs.40,284/- onl^^ 6) Shri Sudhir Agrawal and Shri P. Dutta, leamed counsel fbr respondent No.2, on the other hand, supported the award and contended that as the driver-cum-owner of the offending vehicte Tractor-Trolley was not holding any driving license on the date of the accident, the Tribunal has rightly exonerated the insurer of the Tractor-Trolley from its liability to pay compensatton to the clalraant. 7) So far as the liability to pay compensaUon to the ojaimant is concemed, we gather from para 11 of the impi^ned award that the -53"^ 3 ' '^-,^..,,.-,.^' 4 driving license No.1323/GUV2000-2001 purported to have been issued by the Lteensing Authority, Gumta, when was sent for veriflcation, the said authority reported that no such Iteense has been issued by the said authorlty in the name of Dharam Kumar Singh. Thus, it was established beyond doubt that the Iteense produced by the owner-cum-driver before the Tribunal was a fake driving license. In this state of evldence, we do not find any inflrmjty in the finding recorded by the Tribunal leading to exoneration of the insurer of the Tractor-Troltey and hekling the liabjl'rty in that behalf was of the owner-cum-driver of the Tractor- Trolley. 8) So faras the quantum of compensation is concemed, during the course of hearing it transplred that the claimant forthe reasons best known to him, did not examine any doctor before the Tribunal to establish the nature of the injuries said to have been sustained by him in the motor accident and the fact that those injuries resulted in any permanent dlsability. 9) The question whether the medteal oertiflcate produced by the daimant before the Tribunal without exantfning the Doclor wlw issued the certtficate can be relied upon as substanttve evidence for the assessment of the compensation came up for consjderation before the Apex Court jn the case of A.P. SRTC v. P. Thirupal Reddy, reported in (2005) 12 SCC 189, wherein tt was observed in para 6 as under "6. After hearing learned counsel for the respondent-claimarrt who made an attemyrt to support ^' the order of the High Court, we find that there was no justification for the High Court to rely on the disatoility 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 committed aross error in overiookjna the fact that Dr. Sudhakar Reddv's medical certificate was reiected bv the Tribunal for non-examination of that doctor. The Tribunal has determined the phvsical disabilitv at 15 oer cent on the basis of the deposition of Dr. KM. Mitra and award^l a just and fair compensation. The Hiqh Court erred in disturbina the same and enhancina the comDensaUon. Consequently, we allow this appeal, set asicte the impugned order and restore the award of the Clalms Tribunal. The respondent-claimant is allowed to withdraw the amount of compensation awarded fc^ the Tribunal, if it has not already been withdrawn." 10) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observations Sn 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 hospital treated ie appeUant. 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 certiflcate examined himself. it was not admissible in evidence. Whether the disability at 60% was cateulated 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 Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the partles. (n absence of any contention having been rai^d in regarct to the applicabiljty of the Workmen's Compensa*ion Act which, in our opinion, ex facie has n@ applteation, the same, in our opinion, cannot be permitted to be raised forthefirsttime." 11) The medical certificates produced by the claimant before the Tribunal without examining the doctor who had i^ued those certiflcates, in view of the above quoted cticta of the Apex Court in the cases of A.P. SRTC v. P. Thirupal Reddy (Sujwa) and Rajesh Kumar alias Raju v. Yudhvir Singh and another (Suprai), cannrt be taken into consideration for enhancement of the compensation in the case. 12) We, therefore, do not find any scope Tor enhancement of the compensation awarded bythe Tribunal. 13) The appeal filed by the appeKant/claimant for enhancemerrt of the compensation, therefore, is liable to b®dismissed and is hereby dismissed. 14)_JMfi_Qrder as to costs. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge subbu ./• ^? F^ ;K