"tt * b-*tA.^^ l-natll»ldl4fl)>u,lJ.i^«l)B HJGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHR! RAJEEV GUPTA, C.J. HON'BLE SHR! PRASHANT KUMAR MiSHRA, J. Misc. Appeal No. 134 of 2003 Appellant Cteimant Respondents Non-Applicants Gulabdas Banjare (Satnami) S/o Gaukaran Satnami, Aged about 35 years, R/o Village Somanl, Tahsil & Dlstt Rajandgaon (CG) ^ VERSUS 1 Shankarlai S/o Bharatlal Nai (Umare), Aged about 35 years, Occupation : Driver, R/o Polsaipara, Durg.Th and Distt Durg (CG) 2 Yashwant Singh Parihar, S/o Prithwiram Singh Parihar, Agedjabout 24 years, Occupatlon : Me^adoor Transport, R/o Keiabadi Shashtri Chauk Durg, Tahsit and Distt Durg (CG) 3 National Insurance Company Ltd., Head Office- 3 Midiltan Street, CslSutta - 70071, Akashganga Comptex, Supela Bniiai, i anii ana uisinci uurg ^uj Memo of Appeal under Section 173 of the Motor Vehicles Act. 1988 Present : . Shrl Abhay Tiwari, counsel for the appellant. -None for respondents No.1 and 2. Shri Dasarath Gupta, counsel for respondent No.3. ORDER (17th/Uigust, 2010) ,^'e"-<%,, .r&-l '* 2 Se9^ I SM '"••»UII? The following order of the Court was passed by Rajeev Gupta, C.J. Appellant Gulabdas Banjare is seeking enhancement of the compensation awarded by the First Additional Motor Accident Ciaims Tribunal, Rajnandgaon (for short 'the Tribunal') vide award dated 16.07.2002, passed in Claim Case No.30/2000. 2) As agalnst the compensatlon of Rs.9,48,600/-, claimed toy the appellant/claimant byflllng aclaim petition underSection 166 of the Motor Vehicles Act for the injuries sustained by hlm in the motor accident on 21.12.96, the Tribunal awarded a totai sum of Rs.29,000/- as compensation along \with interest @ 9% per annum from the date of filing of the claim petition till the date of actual payment. 3) Shri Abhay Tiwari, learned counsel for the appellant vehemently argued that the Tribunal has erred In awarding low compensation of Rs.29,000/- only, though the appellant/claimant sustained multiple serious injuries Including fractures in the motor accident resulting in permanent dlsability to the extent of70%. 4) Before the Tribunal, the ciaimant examined two witnesses including himself^AW-1 Guiabdas Banjare and AW/2 Santosh Yadav) in suppori: of his claim. For the reasons best knowri to the appellant / claimant, no doctor was examined before the Trlbynal to establish the nature of the injuries sald to have been sustajned by the appellant/clalmant in the motor aecident and the fact thaf those injuries resulted in any permanent dlsabillty. if«riii..^»i»iAt>ti.H-m ii-i': liUM IKiil J..,-..J<.....|l-lj.t. ;U-4fi 5) The question whether the medical certificate produced by the claimant before the Tribunat without examining the Doctor who Issued the certificate can be relied upon as substantive evidence for the assessment of the compensation came up for consideration before the Apex Court in the case of A.P.SRTC Vs P. Thirupal Reddy reported in (200S) 12 SCC 189, wherein it was observed in para 6 as under: < "6. After hearln.g learned counsel for the respondent - clalmant who made an attempt to support the order of the High Court, we find that there was no justification for the High Court to rely on the disabtlity certificate issued by Dr Sudhakar Reddy and enhance the compensation by treating the Injury as permanent disabillty to be 45 percent. The High Court committed gross error In overlookina the fact that Dr Sudhakar Reddv's medical certificate was reiected bv the Tribunal for non-examinatlon of that doctor. The Tribunal has determined the phvsicai disabilitv at 15 per cent on the basis of the deDOsition of Dr KM Mitra and awarded a just and fair compensation. The Hiah Court erred in dlsturbina the same and enhancing the compensation. Consequently, we allow this appeal, set aslde the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is allowed to withdraw i the amount of compensation awarded by the i Tribunal, if it has not aiready been withdrawn." 6) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju Vs Yudhvir Singh and another, reported jn I1) i-1 (2008) 7 SCC 305, reiterated the same vlew with the following observations in para 11 : "11. The certiflcate in question in thls 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 sald certiflcate had not been examined. Unless the author of the certificate examined hlmself. it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provlsions 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 Tribunai or the Hlgh Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicabiiity of the Workmen's Compensatlon Act which, in our opinion, ex facle has no application, the same, in our opinlon, cannot be permitted to be raised for the first time." 7) In view of the above quoted dicta of the Apex Court in the cases of A.P.SRTC Vs P. Thirupal Reddv (supra) Rajesh Kumar alias Raju Vs Yudhvir Singh and another (supra), the medical certificate and the disability certificate produced by the appellanUclaimant before the Tribunal without examlning the .WIIh.lUllUUlA.l.rflt A-. Un<Afc».. 'v padma Doctors who had issued those certiflcates, cannot be taken into consideratlon for enhancement of the compensation in the case. 8) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal. 9) The appeal, filed by the appellant/clalmant for enhancement of the compensation, therefore, is liable to be dlsmissed and is hereby dismissed. 10) No order as to eosts. -—— Sd/- Prashant Kumar Mishra Judge s<v- Chief Justice :•*.'