rz7 t ^5-^?' HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J. Appellant Claimant Misc. Appeal (Cl No. 82 of 2009 Pavan Kumar Nirala, aged about 35 years, s/o Rameshwar Prasad Nirala, r/o Gali No.5, Telibandha, Police Station Telibandha, Riapur (CG) VERSUS 1 Shivshankar Singh, aged about 23 years, s/o Deepchand Singh, r/o Near Jagriti Chowk, Sainagar, Fafadeeh, Raipur, District Raipur 2 Manager, the Oriental Insurance Company Limited, Raipur, Tahsil and District Raipur (CG) IVIemo of appeaLunder Sectjon 173 of Motor Vehicle Act Respondents Present: Shri MK Bhaduri, counsel for the appellant. Shri Sudhir Agrawal and Shri P Dutta, counsel for respondent No.2. ORDER >rd (23roSeptember,2011) The following order of the Court was passed by Rajeev Gupta, C.J. Appellant/ claimant Pavan Kumar Nirala is seeking enhancement of the compensation awarded by the 11 Additional vv^~~ °@'s?' t""•-'S^s^ M.A.C.No.82of2009 (,- Motor Accident Claims Tribunal, Raipur (for short 'the Tribunal') vide award dated 27.09:2008, passed in Claim Case No.28/2007. 2) As against the compensation of Rs.18,95,980/- claimed by the appellant/ claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 18.11.2003, the Tribunal awarded a total sum of Rs.35,500/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 3) The Tribunal on a close scrutiny of the entire evidence led before it held that claimant Pavan Kumar Nirala sustained multiple serious injuries in the motor accident on 18.11.2003; the claimant himself and the driver of the other vehicle Maruti Van bearing registration No.C.G.-04-Z/3819 equally contributed to the accident to the extent of 50% each; as the above Maruti Van on the date of the accident was insured with the Oriental Insurance Company Limited and the Insurance Company could not establish any breach of the policy conditions, the Insurance Company was liable to pay 50% of the compensation assessed to the claimant. 4) • The Tribunal considering the number and nature of the injuries proved to have been sustained by the claimant in the motor accident and the amount proved to have been spent on treatment assessed the total compensation at Rs.71,000/- inclusive of Rs.6,000/- towards medical expenses. As the claimant himself was found responsible for the accident to the r .'^-^^•-.\ '^ -¥ :^t:^i;.yK<^\ /!• MAC.No. 82 Of 2009 rx.l extent of 50%, the Tribunal directed the insurer of the other vehicle Maruti Vanto pay 50% of Rs.71,000/- i.e. Rs.35,500/- to the claimant as compensation for the injuries sustained by him in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.35,500/- @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 5) Shri MK Bhaduri, learned counsel for the appellant vehemently argued that the Tribunal has erred in holding that the claimant himself also contributed to the accident to the extent of 50%; and in awarding low compensation of Rs.35,500/- only. 6) Shri Sudhir Agrawal and Shri P. Dutta, learned counsel for respondent No.2 the Oriental Insurance Company Limited, the insurer of the other vehicle Maruti Van, on the other hand, supported the award and contended that the Tribunal has rightly held it to be a case of contributory negligence and the compensation of Rs.35,500/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case. 7) Before the Tribunal, the claimant examined himself alone as'AW-1 in support of his claim. For the reasons best known to the claimant, no doctor was examined before the Tribunal for establishing the number and nature of the injuries said to have been sustained by the claimant in the motor accident and the fact that those injuries resulted in any permanent disability. fls—T- 4 MAC.No. 82 of 2009 8) The question whether the medical certificate produced by the claimant before the Tribunal 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 v. P. Thirupal Reddy, repori:ed in (2005) 12 SCC 189, wherein it was observed in para 6 as under: "6. After hearing learned counsel for the respondent- claimant who made an attempt to support the order of the High Couri:, we find that there was no justification for the High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 per cent. The Hiah Court committed aross error in overlooking the fact that Dr. Sudhakar Reddv's medical certificate was reiected bv the Tribunal for non- examination of that doctor. The Tribunal has determined thejihvsical disabilitv at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a iust and fair comDensation. The Hiah Court erred in disturbina the same 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 awarded by the Tribunal, if it has not already been withdrawn." 9) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in :IE3.; "'"J^"^""3^ MAC.No. 82 of 2009 (2008) 7 SCC 305, reiterated the 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 ceri:ificate 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 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 materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time." 10) The medical certificates produced by the claimant before the Tribunal without examining the doctors who had issued those certificates, in view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thirupal Reddy (Supra) and Rajesh Kumar alias Raju v. Yudhvir Singh and another (Supra), cannot be taken into consideration for enhancement of the compensation awarded by the Tribunal. ?^' MAC.No. 82 of 2009 11) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal. 12) So far as the finding recorded by the Tribunal that the claimant himself also contributed to the accident to the extent of 50% is concerned, we gather from paras 7 and 8 of the impugned award that the claimant at the time of the accident was driving his motorcycle under the influence of liquor; the Police after investigation of the case charge-sheeted claimant Pavan Kumar Nirala himself in the Couri: of Magistrate for rash and negligent driving of his motorcycle, resulting in the accident. 13) On due consideration of the submissions of learned counsel for the parties; the evidence available on record; the nature and manner of the accident involving the claimant's motorcycle and the other vehicle Maruti Van; the fact that the doctor on medical examination of the claimant categorically mentioned in the medical examination report that the claimant at the time of the accident was driving his motorcycle under the influence of liquor, we do not find any infirmity in the above finding recorded by the Tribunal holding that the claimant himself also contributed to the accident to the extent of 50%. 14) For the foregoing reasons, the appeal filed by the appellant/ claimant for enhancement of the compensation is liable to be dismissed and is hereby dismissed. 15) No order as to costs. _ Sd/- ChiefJustice Sdf- R.N. Chandrakar Judge ...A'.^ f"tT 'i: \: -)^-