rNR GH COURT OF CH'IATTISGARH BILASPUR CORAM: HON’BLE SHRI SUNIL KUMAR SINHA & N HON’BLE R.L. JHANWAR J J Misc. Aggeal No. 851 of 2006 Minor Bhjrgu Ram Lahrc, aged 8 years, son of Tahlu Ram Lahm, th'rough the natural guaniian father and next fricnd Tahlu Pxasad Lahm, aged 35 years, son of Aklaha Lahre, by-caste Samami, Iesident of Village Tuta, P. O. Manabasti, P. S. " Abhanpur, Raipur (CG). Tahsil Abhanpur, Distt. Versus ‘ 1. Heera Singh, son of Phul rSingh Rajput, aged about 35 yeam,‘ resident of Dhamtari, Aama Talab, RS. Kotwali, Dhamtan', Distt. Dhamta1i(C.G). 2. Ratnu Ram Sahu, s/o Sakharam Sahu, aged 43 yeam, Iesident of village Bodara (Sambalpur), Police Station Arjuni, Distt Dhamtari (C.G). 3. The Branch Manager, Oriental flnsurance Co. Ltd., Bal Mandir, Main Road, Dhamtan' (C.G). (Aageal under Section 173 of the Motor Vehicles Act, 198817 Aggearanc : Shri M.K. Bhadun‘, counsel for the appellant. Shri H,S. Patel, counsel for respondents 1 & 2. None for mspondentynos, though served. JUDGMENT (17.08.2009) Following judgment of the Court was passed by Sunil Kumar Sinha J. 2 @ M.A.No.851/2006 (1) The appellant/claimant has med thisappeal for enhancement of amount of compensation awanied in Claim Case No. 72/ 2005 by the 10th Addl. Motor Accident Claims Tribunal, Raipur (C.G) on 09.05.2006. (2) The facts, bn‘eily stated, am as under: The appellant/claimant med a c1m'm petiu'on u/s 166 of the Motor Vehicles Act claiming compensation of Rs. 15,42,736] — on account Of injuries sustained by him in the motor accident. He pleaded that he mceived injuries in his eyes and ears. There‘was impaixment due to injuries. There is \ dimculty in speaking and thus he has su§ered permanent disability. He claimed Rs.11,236/— for his treatment, Rs. 12,000] - on account of loss of earning of his father who was also involved in his neamient, Rs. 10,000] — for special dietand Rs.5000/ — for mental agony. However, on his own calculations, he claimed the above amount i.e., Rs.15,42,736/- as compensation for the injuries sustained by him. The claimant examined Tahlu Pmsad Lalne as A.W.l *and Sundarlal Lahre as A.W.2 in support of his claim petin‘on whereas the respondents examined Hira‘Singh Rajput as N.A.W. 1 in rebuttal. The Tribunal recorded a hnding that the appellant sustained grievous injuries in the said accident. He was admitted in Ambikapur hospital for 45 days. The Tribunal awarded a sum of Rs.10,000]-towa1ds the treatment and Rs.5000]— towards expenses on attendant. It also awarded Rs.5000/— for special diet and Rs.5000/~ on account of pain \ \‘ , M.A.No.851/2006 and swerings. The Tribunal also awanied Rs.2900/- for conveyance and Rs.15,000/- rfor loss of futuxe earning Vcapacity. The Tn'bunal thus awalded a total sum of Rs.42,000/- as compensation to‘ the appeHant/claimant on account of personal injuries sustained by hml inVfhe motor accident. It was held that the respondents were jointly and severally liable to pay the amount of compensation. ii?” (3) Shri M.K. Bhaduri, learned counsel for the appellant argued that though the claimant sustained multiple serious mJunes and he also sun‘eled permanent disability but the Tribunal did not award any amount on these counts. (4) v On the other hand, Shn' H.S. Patel, learned counsel appearing on behalf of respondents 1 8r. 2 opposed these arguments and supported the award passed by the Claims Tribunal. (5) We have heaxd learned counsel for the parties at length and have also perused the records of the claim case; 7(6) Though the claimant examined the above Wimesses in support of the claim petition but no Doctor was examined before the Tribunal by the appellant/claimant to establish the nature of injuries said to have been sustained by him in the motor accident and the fact that those injuries resulted in any permanent disability. The appellant/claimant has produced various cem'ncates regarding his injuries, but they were not proved by any doctor. ' r (7) The question Whether the medical certincate produced by the claimant before the Tribunal without examining the Doctor who \ issued the (certin‘‘cate ‘ \1 = can be relied upon ' as substantive evidence for // V 4 M.A.No.351/2006 the asscssment of the compensation came up for consideration before the Apex Court in the case of AP. SRTC ‘v. P. Thimpal Ready, reported in {2005) 12 SCC 189, wherein it was obsexved in para 6 as under : “6. After hearing learned counsel for the respondent-claimant Who made an attempt to support the order of' the High Court, we find that there was no justincation for the High Court to rely on the disability certmcate 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 gross error in overlooking the fact that Dr. Sudhakar Reddy’s medical certihcate 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 of the deposition of Dr. K.M. Mitra and awarded a iust and fair 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.” (8) The Apex Court in a recent dictum in the case of R#esh Kumar alias Raga-v. Yudhvtr Singh and another, reported in (2008) 7 SCC 305, reiterated the same View with the following observations in para 1 1 : “1 1. The cerh'hcate in quesn'on in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certincate was issued two years after the accident took place is not knoWn. The author of the said certiticate had not been examined. Unless the author of the cei tillcate examined 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 hmwn as to whether he was competent to issue such a certincate. it even does not appear that the contentions raised before us had either been raised bctbre the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contenn'on having been raised in regard to the applicability of the Workmen’s Compensation Act which, in our opinion, .ex'facie has no application, the same, in our opinion, cannot be permitted to be raised for the hrst time.” ‘ \ 5 M.A.No.851/2006 (9) As we have already mantioned, no Doctor was examined befom the Tn'bnna] to prove the fact that the .appcHHnt/claimant su$md any permanent disability on account of injuries sustained by him. Even the documents (cerh'ncates including the medical examination report) med by him were not proved. (10) In View of the above quoted dicta of the Apex Courtin the cases of A.P. SRTC u. P. Thimpal Raddy (Supla) and Rajesn Kumar alias Raju u. Yudhvir Sing]! and another (Supra), the cei tilicate produced before the Tribunal in the absence of examination of the Doctor issuing the certihcate is neither admissible in evidence nor can be taken into consideration a‘s substantive evidence for assessment of the compensation in the case. '(11) For the foregoing reasons, we do not find any scope 'for enhancement of the compensation-awarded by the Tribunal (12) The appeal nled by the appellant] claimant for enhancement of compensan‘on, therefore, is liable to be dismissed and is hereby dismissed. (13) No order as to costs. Sd/- Sd/- R.L. Jhanwar Sunil Kumar Sinha Judge Judge Ran