' • "^.. \ //""% -^ l^J. '"s^te ""aeBK; 0-- HIGH COURT OF CHHARTriSGARHAT BIIASPUR Single Bench :- Hon'ble Shri R.N. Chandrakar. J Respondents Non-applicants M.A. (0 No. 104S of 2007 Appellant : Arjun S/o Sonsai, agedabout Claimant 22 years, R/o village Sonpur, Village Dongaghat, Police Station Jagdalpur, District Bastar(CG) Versus 1. Daniram Munda S/o Manglu Munda, aged about 25 years, Driver, R/o Village Potanar, Police Station Parpa, District Jagdalpur, Bastar (CG) (Driver) 2. Smt. Ramtangari W/d Late Vidyadhar Tiwari, aged about 60 years, R/o Motitalabpara, in front of Sethi Bhawan, Jagdalpur. District - Bastar (Owner) 3. The New India Insurance Company Limited. Through : Branch Manager, Offlce : Near Jhankar Talkies, Jagdalpur, District Bastar (CG) MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ^WT. Aopearance: Shri Manoj Paranjape, counsel for the appeltant. None for respondent No.1. Shri Adltya Kumar, counsel appears on behaff of Shri P.P. Sahu, cousel for respondent No.2 Shri Hanuman Prasad Agrawal, counsel for respondent No.3. Oral Order BT (Passed on 29°June, 201 1) ::^;?^, '•^'..', ^:"—'?1'L . Heard. 1) The appellant Arjun is seeking enhancement of the compensatton awarded by the llnd Additionat Motor Accident Claims Tribunal, Bastar at Jagdalpur (for short 'the Tribunal') vide award dated 23.04.2007, passed in claim case No. 44/2004. 2) As against the compensation ofRs.15,93,000/- claimed l^ Ihe appellant/claimant by flling a claim petition under SecUon 168 ofth® Motor Vehicles Act Tor the injuries sustained by him in the motor accident, the Tribunal awarded a total sum of Rs.38,000/- as compensation along with interest @ 6% per annum from 04.03.200 till the date of actual payment. 3) Shri Manoj Paranjape, learned counset for theappellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.35,000/- only, though the appellant/claimarrt sustained serious mjuries including fractures on lower limb of the body m the motor accident resulting in psrmanent disability to the extent of 40%. 4) Per contra, Shri Hanuman Prasad Agrawal, learned counsel for respondent No.3, the New Indla Insurance Company, the insurer of the offending vehfole minibus contended that the compensation of Rs.35,(X)0/- awarded by the Tribunat cannot be termed as inadequate so as to warrant enhancement in this appeal. He further submits that no treating doctor was examined before the Tribunal to establish the nature of injuriessaid to have been sustained by the appellant/claimant. 5) Shri Aditya Kumar, learned counsel appearing on bahalf of Shri P.P. Sahu, counsel for respondent No.2, owner of the offending vehicle minibus supported the impugned award passed by the Tribunal. 6) Before the Tribunal, the claimant examined two w'rtnesses including himself (AW/1 Arjun and AW/2 Dr, K.B. Sharma) in support of hia claim; For the reasons best known to the appellant/claimant. no treating doctor was examined before the Tribunal to establish the nature of the injuries said to have been sustained by him in the motor accident. t:®sS*. ."'"•-^. a^ 7) Tha quesBon whefter the medical certfficate produced by the claimant before the Tribunal without examinlng the Doctor who i^ued ttie certificate can be retied upon as substantjve evidence forthe. assessment of the compensation came up for consideraUon before the Apex Court in the case of A.P. SRTC vs. P. Thlruoal Reddv.resortisi in (20W) 12 SCC189. wherein it was observed in para 6 as uider: "6. After hearing learned counsel for the respondent- claimant who made an attempt to support the order ofthe High Court, we find that there was no justification for the Hl^i Cqurt to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the tnjury as permanent disability to be 45 per cent. The Hinh court committed flross error in overtookin.g ttie fact that Dr. Sudhakar Reddv's medical cerfficate was reiected bv the Tribunal for non- examination of that doctor. The Tribunal has determined the physicat disability at 15 per cent on the basis pf the cteposition of Dr. K.M. Mitra and awarded a iust and falr compensatton. The High Cqyrt erred in djstyiWng.the same and enhaneinp Uie compensaUon. Consequently, we allow this appeal, set aside the impugned order and restore the award of e Claims Tribunal. The respondent-claimant is allowed to withdraw tha amount of compensation awarded by ttie Tribunal, if it has not already been withdrawn. 8) The Apex Corut in a recent dictum in the case crf ffaiesft Kumar slias Ralu v. Yudhvir Sinah and anoffier. reported inJ200gUL^ffi-^S Teiterated the same view w'rth the following observations in para 1 1: "11. The certificate in quesUon in this case was obtained after two years. It is not known as to whether the GivU Surgeon of the hospttal freated the appellant. On what basis, such a csrtificate was issued two years after the accictent took place is not knomi. The audior of the sakl certificate had not been examined. Unless the author of the certiflcate eiramined himself. it was not admissible in evidence. Whether the disabillty at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. H; is alao not known as to whether he was competent to issue such a cerfificate. It even does not appear that the contenfions raised before us had eittier been raised before ttie Tribunal cNrthe High Court. The Tribunal as also the High Court, therefore; proceeded on the materials brought on recoid by the partias. In absence ofany contenUon having been raised in regaid tothe applicabll'rty of the Workmen's Compensation ^st which;; oui! opinion, ex facie has no appllcaBon, the same, in our oplnion, cannotbepermittedtoberaisedforthefirsttime." * 9) Doctor K.B. Shamna (AW/2) categorically sterted that on 23.09.2004 claimant/appellant Arjuh was examined by the medical board. There were so many wounds on his left leg and rotation of left knee was not proper. He has also stated that the claimant had embracement in walking. After examination, the board issued disability certificate to the extent of 40%. He has signed photocopy of certificate EX.P- 44 as part A to A and C to C. He has admitted in his cross- examination that it has not been mentioned in tha disability certificate (Ex.P-44) that how 40% disabitity was determlned. He has also admitted that the appellant/claimant Aijun was able to perform his daily routine exereise and was not treated by him. 10) Appellant Aijun deposed that he has not produced any docunent except X-ray report (Ex.P-4). 11) On perusal of disability certifteate (Ex.P-44) and evidanee of Dr. K.B. Sharma (AW/2), it is ctear that there (s rw mention about the reason assigned for 40% permanent disabillty and the statement of Dr. K.B. Sharma (AW/2) appears to be self contradictory as he has admitted in his cross-examination that claimarrt was abte to perform his daily routine exeroise. It is also clear that the aceident teok place on 31.12.2003 whereas the disability certiflcate was issued on 28.09.2004, much later than six months. On perusal rf record, it is revealed that medicat certificate (Ex.P-3) and X-ray report (Ex.P-4) have been prepared by Dr. V.K. Jha but this treating doctor was nat examlned before the Tribunal. Thus, the disability certifieate (Ex.P- 44) issued by the medical board shown to ba 40%, meclical certificate (Ex.P-3) and X-ray report (Ex.P-4) prepared by Dr. V.K. Jha cannot be relied upon. ft Vijay 12) For the foregoing reasons, 1 do nd find any scope for snhsuicemsnt ofthe compensrtion awarded by the Tribunal. 13) The appeal, filed by the appellant/clamiant for enhanoement of the • compensation, therefore, is liable to be dismissed and is hereby dismissed. 14) No order as to costs. SA'- R.N. Chandrakar Judge