';!. <^. HIGH COURT OF CHHATTISGARH. BIIASPUR M.A. No. 286/2002 APPELLANT N.A. M®.1 RESPONDEIfTS Sioi&<-Appliea2&ts Ekram Khaa, S/o Shailulla Khan aged about 35 years, R/o village Bhaiya Thaa, Tahsil Surajpur, Distt. Surguja Versiis 1. The Orientai Insurance Coiapaiiy Lioiited, through Divisional Maiiager, Sadar Road, Anibikapur, Distt. Surguja Iiisisrear 2. Akhileshwar Prasad Sou of Naahoo Sao, aged about 35 years, R/o village aad P.S. Bhaiya Than, Tahsil Surajpur, Distt. Surguja Driver 3, Fakeer Chaad son of Harphalmal Agi-awal aged about 45 years, R/o village Kefka Road, Surajpur, Tahsil Surajpur, Distt. Siirguja (CG)- Reg^stered owoier 4. Vijay Kzuiiar son of Ainar Sm.gh, aged about 30 years R/o village Bhaiya Than, Tahsil Surajpur, Distt. Surguja (CG) Actual owaer SB; HON'BLE SH3RI JUSTICE N.K. AGARWAL OHAL ORDER (20-8-2009) Shri Ashok Kumar SliLikla, Advocate for the appeUant. Shri Ashok Kumai' Shukla, Adv. for respondent No. 1. 2. This is the appeal preferred by the clatmant for enhancement of the amount ofaward against the awai'd dated 19-12-2001 passed in Clalni Case No. 52/2001 by fhe Additional Motor Accident Claims Trmbunal, Baikunthpur Cmnp Court at Sm'ajpi.ir whereby and wheremider an award of Rs. 12,000/- has been passed tn favour of tlie claimant. 3, Brief facts of fhe case giving rise to this appeal are that the claimaiit preferred an appUcation iinder Section 166 of the Motor Vehicles Act, 1988 (brietly, the Act) claiming compensation to the tiine of Rs. 5 lacs agaiiist the injuries sustained in the accident dated 1-2-1995. According to tlie claimant, he was sitting in the Tata ti'uck beming registration No. MP 27 6061 along with his goods and he was going to Grgi Bazar. Near Kala Manjan Nala due to rash and negMgent driviug of the driver of fhe truck, fhe said truck turned turtle. In fhe said accident, he sustained mjuries. L-, ^s^-. ^^^ ^-^ .'-y, ^) 4. Respondents No. 2 and 4 remained exparte before the Tribunal. The respondent No. l/ insui^nce company contested the claim aud denied its liability to pay any compensation to the claimaiit on fhe ground that tiie claimant was sitting in the tn.ick as fare paying passeuger aiid for fhat^ fhe nisuraiice conipsny is not liable to tndemnify the insm'ed. Learned Tribunal on a ciose scrutiny of the evidence and material placed before it, passed the award of Rs. 125000/- along witli interest agatnst tlie iasurance company, agaiiist the claim ofRs. 5 lacs. 5. Shri Ashok Kmnar ShLiMa, learned counsel for fhe appellant vehemently argued fhat the Tribunal has erred in awarding low compensation ofRs.12,000/- only, whereas the appellant/ claiiiiant sustaiiied multiple serious injuries in the motor accident. 6. Per coutra, Shri AJ€, Athale, leamed counsel appearing for fhe respondent no. 1 submits fhat in tfae facts and circumstaiices of the case, the award passed by the Tribunal is adequate and it does not require any enhancement and the appeal deserves to be dismissed as the doctor has not beeu exainiaed to prove injury. 7. For the reasons best known fhe appeUant / claimant no doctor was examined before fhe Tribmial to establish the nature of the injuries said to have been sustamed by the appellant/ clainiant in the motor accident and the fact that those injiiries resulted in aiiy permaaent disability. 8. The question whether fhe medical certtO.cate produced by the claimant before the Tribunai without examining the Doctor who issued the certificatecan be relied upon as substantive evidence for the assessinent of the coinpensatiou caine up for consideration before the Apex Court in the case ofA.P. SRTC v. P. Thimpal Reddy, reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under: ^6. After heariiig learned counsel for the respondent-claimaiit who made an attempt to support the order of the High Court, we find fhat there was no justification for the High Court to rely on the disability certificate issued by Dr. Sudhakar I- •^rT;1 '^ ''•^•M^.. 1 ^. '%-x^- Reddy and enhance the compensation by treating the injuiy as permanent disabUity to be 45 per cent. The High Court committed gross error in overiooking the fact that Dr. Sudhakar Reddv's medical certificate was rejected by fhe Tribunal for non-examination of fhat doctor. The Tribunal has determtned the phvsical disabilitv at 15 per cent on the basis of the deposition of Dr. K.M. Mitraand awarded a iust aud fair coinpensation. The High Court eired^M disturbing the smne^^^^<^ the compensation. Consequently, we allow ttiis appeal, set aside the impugned order and restore the award of tlie Claims Tribunal. The respondent- claiinant is allowed to wifhdraw the ainount of compensation awarded by the Tribunal, if it has not already been wifhdrawn." 9. The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju v- Yudhvtr Singh and miother^ reported in (2008) 7 SCC 305, reiterated the same view with the folowmg obsen/rations in para 11: "11. The certificate in question in thls case was obtatned after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appeUant. On what basis, such a certificate was issued tivo years after the accident took place is not known. The author of the said certificate had not beeu examined, Unless the auftior of the certiflcate exainined himself, it was not admissible in evideilce. Whether fhe disabUity at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or ofherwise 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 fhe High 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 applicabiUty of fhe Workmen's Compensation Act which, tn our opinion, ex facie has no application, the saine, in our opinion, cannot be permitted to be raised for the first time."1' 10. In the instant case, it is not proved as to how many days the appellant remained in hospital. It is also not proved as to how much amount he spent in treatment and, therefore, considermg the facts and circuinstances of the case, particularly when the doctor has not 4 ^-. /:. ^"^'. r"\^'; been examined to prove the injury and certificates, an ainount ofRs. 12,000/- has been awarded as compensation to the claimant. 11. In view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thimpal Reddy (Supra) and Rajesh Kumar aUas Raju v. Yudhvir Singh and another (Supra), the certificate produced before the Tribunal in fhe absence of examination of the Doctor proving the injuries is neither admissible m evidence nor can be taken into consideration as substantive evidence for assessment of the compensation tn. the case. 12. For fhe foregoiag reasons, I do not fiiid any scope for enhancement offhe compensation awarded by theTribunal. 13. The appeal filed by the appellant/claunant for enliancement of the compensation is, fherefore, Mable to be dismissed and is hereby dismissed- 14. No order as to costs. Sd/- N.K. Agarwal Judge