' I HIGH COI.iRTOF CHHATnSGARH AT BILASJPUR Misc. Appeal No.216/2005 D.B.: HON'BLE SHRI JUSTICE SUNIL KUMAR SINHA & HON'BLE SHRI JUSTICE R.L.JHANWAR APPELLANT RESPONDENTS 1 Baburao Solake, S/o Sitaram, Aged about 62 years, Grocer, R/o H. No.18, Near Well, Banspara, Dhamtari, Distrtet'Raipur (C.G.) Versus Bittu @ Parmeshwar, S/o Bharat Lal Dube, Aged about 34 years, Driver, R/o Behind Govt. Hospital, Gariaband, District Raipur (CG)^ Proprietor/Owner M/s Kanker Road Lines, At & PS Civil Lines, Vehicle Owner, Raipur (CG) The National Insurance Company Ltd. Through Divisional Manager, GE Road, Kutehery Chowk, Raipur (CG) APPEAL UNDERSECTION 173 OF THE MOTOR VEHICLES ACT Appearance: ShriRaja Sharma, Counsel forthe appellant. ORALORDER (07.12.2009) The following order of the Court was Sunil Kumar Sinha. J: Heard onadmission. passedby 'ffwWSSiStSS t.:'- ^- Misc. Appeal No.216/2005 Appellant Baburao Solake has flled this appeat under Section 173 of the Motor Vehicles Act forenhancement offtie amount of compensation awarded in Claim Case No.05/2004, by XIII Additional Motor Accident Claims Tribunal (FTC), Raipur vide award dated 08.12.2004. The appellant/claimant filed a claim petition under Section 166 of the Motor Vehlcles Act elaiming compensation of Rs.10,50,000/- on account of personal injuries sustained by him in the motor accident. The appellant claimed that he sustained grievous injuries in the accident, which resulted into permanent disablement. Thought the appellaht contended that tre sustained such injuriesin the motor aecident, but hedkt not examine any Doctor in support of such contention. In para 18 of the award, the Tribunal recordaj a finding that the injuries sustained by the appellantwere simple Injuries. The Tribunal, therefore, awarded a sum of Rs.SOW)/- on account of expenses incurred in treatment; Rs.1000/- for pain and sufferings; and Rs.2500/- on accountof loss of estate. The Tribunal,thus, awarded a totalsum of Rs.8,500/-as the amount of compensation to the appellant for the injuries sustained by him in the motor accident. The Tribunal also awarded interest @ 9% p.a. from the date offiling oftheclaim petitton till its realization. The question whether the medteal <%rtificate produced by the claimant before the Tribunal without examining the Dastor who issued the certificate can be relied upon as substantive evidence for the assessment of thecompensatlon came up for consideration before the Apex Court in the case of A.P. SRTCv. P.Thlivoal RedcfK-reported in/2005J 12 SCC 189, wherein it was observed in para 6as 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 justiflcation for the High Courtto rely on thedi^bility certificate issued by Dr. Sudhakar Reddy and enhance Misc. Appeal N0.216/200S v the compensation by treating the injury as permanent disability to be 45 per cent. The High Court commi^ted aross error in overiookina the fact that Dr. Sudhakar Reddv's medical certifieate was reiected bv the Tribunal for non-examination of that doctor. The Tribunal has determined the phvsicat disabilitv at 15 per cent on the basis ofthe deposition of Dr.K.M. Mitra and awarded a iust and fair comDensation. The Hlah Court erred in disturbina thesame and enhancina 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 award^d by the Tribunal, if it has not already been withdrawn." The Apex Court in a recent dictum in thecase of Ralesh Kumar alias Raju v. Yucfhvfr Stnah and anolhet. reported in (2008) 7 SCC 305. reiterated the same view with the fotlowing observations in para 11 : "11. The certificate in question in thjs 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 ofthe said certificate had not been examined. Unless the author of the certificate examined himselT. 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 was competent 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 ftiaterials brought on record bytheparties.In absence of any contention having been raised in regard to the applicabitity of the Workmen's Compensation Act which, in our opinion, ex facie •' has no applicatton, the same, in our opinion, cannot be permittsd to be raised forthe first time." As we have already mentioned, no Doctor was examined before the Tribunal to prove the fact that the appellant/claimant either sustained fracture or suffered any permanent disabillty on account of the injuries sustained by him. i-1":"-- ~^' •'' shyna 4 Misc. Appeal No.216/2005 In view of the above quoted dicta of the Apex Court in the cases ofA.P. SRTC v. P. Thlnioal Reddv (Supra) and^^sft Kumar allas RaSu v. Yudhwr Simxh and anather (Supra), the certificates produced before the Tribunal in absence of examination of the Doctor issulng the certlficate were neither admlssible in evidence nor can be taken into consideration as substantive evidence for assessment of the compensation in the case. For the Toregoing reasons, we do not find any scope for enhancement ofthe compensation awarded by the Tribunal. The appeal filed by the appellant/claimant for enhancement of lh8 compensation, thsrefore. Is ilable to be dlsmlssed and is hereby dismissed summarily. No <>r<l^r a§to <seste. s^- SunU Kumar Sinha Judge .Sd/- R.L. Jhanwar Judge