A^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR fC.G.) MISC. APPEAL f C ) N0. ^M^ QF 2006 APPELLANT: Sunder Singh S/o Chhabi lal Sahu Claimant aged about 32 years, r/o. Village Fagundah, Tahsil - Gurur, present r/o. Village - Khartuli, Tahsil & Distt.- Dhamtari (C.G.) VERSUS RESPONDENTS.^ ,. 1. Hafij Khan S/o Guljar Khan / ^' .^ ^w aged about 40 years, r/o. Motipur Rajnandgaon, Distt.- Rajnandgaon (C.G.) 2. Manager^ Anand Roadways, Bus stand Rajnandgaon, Distt.- Rajnandgaon (C.G<) 3, New India Insurance Company, Ltd. Thakkar Bhawan G. E. Raod Bhilai !)4€C| Distt.- B^aaadga&n (CG). / MEMO RANDUM OF MISC APPEAL UNDER SECTION '173 OF MOTOR ^i' ^ s^ ^y <^^y y s: VEHICLESACT ^^ HiGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL (C) No. 443 OF 2006 Appellant Claimant Respondents Non- Claimants Sunder Sinah Versus Hafij Khan & Others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICL^ACT. fSB: Hon'ble Mr. N.K. Aaarwal, J.i resent : Shri Sunil Sahu, Advocate for appeilant. None for respondents. 1. 2. ORAL ORDER (Passed on 17th day of December, 2009) Heard on 01, application for condonation of delay in payment of PF. On due consideration, the application is aiiowed and detay is accordingly condoned. The instant appeal has been preferred by the appellant, seeking enhancement of compensation against the award dated 04.04.2006, passed by the Additional Motor Accident Claims Tribunal Dhamtari, (for short 'Tribunal') in claim case No. 130/04. The brief facts of the case according to appellant are that, on 09.03.2002, the appellant met with an accident by Bus bearing registration No. MP-29-E-0055, due to which the appellant sustained injuries. The appellant preferred an appiication before the Tribunal under Section 166 of the Motor Vehicles Act, daiming compensatlon to the tune of Rs. 6,00,000/- for the injuries sustained by him on account of the said accident. The Tribunai, on a close scrutiny of the evidence led by the parties; the material available on the record, and submissions of the parties, awarded total amount of Rs. 20,000,/- as compensation in favour of the appellant. ^^.^y 8. 9. 10. Learned counsel for the appellant would submlt that although the Doctor has not been examined in this matter, but looking to the fact that the appeliant sustained grievous Injury, and amount awarded is shocklng on lower side, this appeal may be allowed and the amount of compensation be enhanced. i have heard the learned counsel appearing for the appeilant and perused the record. The Supreme Court in case of A.P. SRTC v. P. Thimpal Reddy, reported in (2005) 12 SCC-189, observed 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 justification for the High Court to reiy on the disability 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 gross error in overlooking the fact that Dr. Sudhakar Reddy's medicai certificate was rejected bythe Tribunal for non-examination ofthat doctor. The Tribunal has determined the physicai disabiiity at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just 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 restor? 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." The Supreme Court in a recent dictum in 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 in para 11: "11. The certificate in question in this casewas obtained after two years. It is not known as to whether the Civii Surgeon of the hospital treated the appellant. 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 disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is a!so not known as to whether he was competent to issue such a certificate. !t 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 parties. !n absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinlon, ex facie has no application, the same, in our opinion, cannot be permittsd to be raised for the first time." .^-^%^ ^'^^ fl ^ s ^/f (^ 11 12. 13. 14. A Division Bench of this High Court in case of Pradeep Kumar Sahii 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: "8. In view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thirupal Reddy (supra) and Rajssh Kumar alias Raju v. Yudhvir Singh and another (supra), the certificate produced before the Tribunal in the absence of examination of the Doctor issuing the certificate is neither admissible in evidence nor can be taken into consideration as substantive evidence for assessment of the compensation in the case." Admittedly, the claima.nt in his own wisdom did not examine Doctor to prove the injury sustained in the accident and to prove the resultant loss. In view of the dicta of the above referred cases, the injury reports, certificates produced, in the absence of examination of the Doctor issuing the injury reports, certificates are nelther admissible in evidence nor can be taken into consideration as substantive evidence for enhancement of compensation in the case. For the reasons mentioned hereinabove, 1 do not find any scope for enhancement of the compensation awarded by the Tribunal. The appeal filed by the appellant for enhancement of the compensation is therefore liable to be and is hereby dismissed. No order as to costs. Sd/- N. K. Agarwal Judge Kvr