€> v^:^- f / IN THE HIGH COURT OF AT BILASPUR CKHAmSaftRH M.A.NO. {Sj^ T2004 Dfoi$i^ ^ .ppellant Versus Jlespoadesits ^ •f^ ^'^>1;;^' w,^ ^ KinnarYadav S/oShri Bhola Ram^^ Y^ ^ars, ^ Agriculturist^^^^^^ ^^^^ ^ Narmadapur, Baigwaha Para, P.S.Kajiilesfawarpur, Ta^ - Dist: Sarguja-(C.G.) Abdiil Rasheed C^p Rasheed Bus Service, Aged atoout 50 years, Caste - Muslim, Occupation Owner of the Vehicle Bus NO.CG-15-ZA/0223, R/o Nagar Ambikapur P,S & Tahsit Amfaikapur, Dist: Sarguja-(C.g^ Samshuddin S/o KabirKhaiiAged abbuf 45 y^^ - Driver, R^o; Barej ^Para, Tahsil &j P.S. Amtoil^ur, Qist: Sarguja-(C.G T^e. Oiien^ BrancHj^nilMkapur^^^^M Itoad, Near Ambedlsar CKowk Ambikapur, TaJisiI 8& P.s. Ambikapur, Dist :Sarguja-{C.G.) MISC. APPEAL U/S 173 OF THEMOTORVEmCLESACT 1988 II! HIGH COURT OF CHHATTISGARH AT BtLASPUR (>. Appellant Respondents MA No. 1245 OF 2004 Rajesh KumarYadav Versus Abdul Rasheed & Others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. (SB: Hon'bleMr.N.K.Aaarwal.J.l Present : Shri MPS Bhatia, Advocate for appellant. 1. 2. 4. ORAL ORDER (Passed on 27th day of January, 2010) Heard on M(C)P No. 1770/04, application for condonation of delay in filing the appeal. On dueconsideration, 1 am satisfied that the counsel for appellant has succeeded in explaining the delay caused in filing this appeal. Accordingly M(C)P No. 1770/04 is allowed and delay caused in filing the appealis hereby condoned. Heard on admission. The instant appeal has been preferred by the appellant, seeking enhancement of compensation against the award dated 23.07.2004, passed by the Motor Accident Claii^s Tribunal, Surguja at Ambikapur (for short Tribunal') in claim case No. 130/03. The brief facts of the case according to the appellant are that, on 07.05.2003, the appellant met with an accident with Bus bearing registration No. CG-15/ZA-0223; due to whteh the appetlant sustained injuries. The appellant preferred an application before the Tribunal under Section 166 of the Motor Vehictes Act, claiming compensation to the tune of Rs. 1,42,975/- for the injuries sustained by him on account ofthe said accident. The Tribunal, on a close scrutiny ofthe evidence led by the parties, the material available on the record, and submissions of the !i \ '*n*'*l,V;- parties, awarded totai amount of Rs. 64,975/- as compensation in favour ofthe appellant. 7. Learned counsel for the appellant would submit that although the Doctor has not been examined in this matter, butlooking tothe fact that the appellant sustained grievous injury, and amount awarded is shocking on lower side, this appeal may be allowed and the amount of compensation be enhanced. 8. I have heard the learned counsel appearing for the appellant and perused therecord. 9. The Supreme Coyrt in case of A.P. SRTC v. P. Thirupal Reddy, reported in (2005) 12 SCC-189, observed in para 6 as under: "SAfter 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 justjfication for the High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the cbmpensation by treating the injury as permanent disability to be 45 per cent. The High Court committed gross error in overlooking the fact that Dr. Sudhater Reddy's medical certificate was rejected by the Tribunat for non- examjnation 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 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 restore the award of the Claims Tribunal. The respondent-Glaimant is allowed to withdraw the amount of compensation awarded by the Tribunal. if it has not already been withdrawn." 10. The Supreme Court in a recent dictum in caseof Rajesh Kumar allas Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiteratedjhe same view with the following observations in 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 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 certificato 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 also not known as to whether he wascompetent 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 ^.t:^ \ record by the parties. In absence of any contention havlng been raised in regard to the applicability of the Workmen's Compensation ActwhiGh, Jn our opinion, ex facie has no application, the same. in our opinion, cannot be permitted to be raised for the first time." 11. A Division Bench of this High Court in case of Pradeep Kumar Sahu vs. Sanipa Sahu & anothervide order dated31st 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 oiA.P. SRTC v. P. Thirupal Reddy (supra) and Rajesh Kumar allas Raju v. Yudhvfr Slngh and another (supra), the certificate produced before the Tribunal in the absence of examination of theDoctor issuing the certificate is neither admissible in evidenGe nor can be taken into consideration as substantive evidence for assessment of the compensation in the case." 12. Admittedly, the claimant in his own wisdom did not examjne 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, jn the absence of examination of the Doctor issuing the injury reports, certiflcates are neither admissible in evidence nor can be taken Into consideration as substantive evidence for enhancement of compensation in the case. 13. For the reasons mentioned hereinabove, l do not find any scope for enhancement ofthe compensation awarded by the Tribunal. 14. The appeal filed by the appellant for enhancement of the compensation is ther^fore liable to be and is hereby dismissed. No order as to costs. Sd/- N. K. Agarwal Judge Sahu