HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: Appellant CRaimant HON’BLE sHRI RAJEEV GUPTA, C.J. & HON’BLE SHRI RANGNATH CHANDRAKAR, J. Misc. Appeal No.572 of 2002 Dilip Kumar aged about 16 years through father s/o. Shri Sukaluram Kenwat, r/o. villager Barbaspur, Tehsil Bemetara, ’Distt. Durg (CG), through guardian Shri Sakaluram Kenwat. VERSUS Resnondents 1 Narmada Prasad Thakur aged about 55 Driver, s/o. Tikaram Thakur, R/o. Magarpara Chowk, Bilaspur (CG), Driver Bus No. MP 266-5851 ). 2 M/s. Jai Jhulelal Bus Service, Prop. Shn Brharrlal Verma Rlo Chakarbhata Drstt Bilaspur (CG) (Owner Jai Jhulelal Bus Serwce No MP26C-5851 ). 3 The New India Insurance Company Ltd through Branch Manager Ralendra Nagar Chowk Briaspur Distt Bliaspur(CG) Miscellaneous Appeal uls 173 of the Motor Vehicle Act, 1988 Present : Shri Sanjay K. Agrawal and Shri Sudeep Agrawal, counsel for the appellant. None for respondents No.1 and 2. Shri Prashant Jayaswal, Senior Counsel with Shri Neeraj Pradhan, counsel for respondent No.3. ORDER (10m December, 2010) The following order of the Coud was passed by Rajeev Gupta, C.J. AppeHantl claimant -— Dilip Kumar is seeking enhancement of the compensation awarded by the Fifth Additional Motor Accident Claims Tribunal, Bilaspur (for short ‘the Tribunal') vide award dated 08.03.2002, passed in Claim Case No.62/2001. 2) As against the compenSation of Rs.10,84,000/— claimed by the appellant/claimant by tiling a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 30.06.2000, the Tribunal awarded a total sum of Rs.62,000/- as compensation to the claimant aiong with interest @ 9% per annum from the date of tiling of the claim petition till the date of actual payment. 3) Shri Sanjay K. Agawal and Shri Sudeep Agrawal, learned counsel for the appellant’vehemently argued that the Tribunal has erred in awarding low compensation of Rs.62,000/- only though the appellant/ claimant sustained multiple serious injuries including fractures in the motor accident resulting in permanent disability to the extent of 60%. 4) Shri Prashant Jayaswal, learned Senior Counsel with Shri Neeraj Pradhan,-learned counsel for respondent No.3 New India insurance Company Limited, on the other hand, supported the - award and contended that the compensation of Rs.62,‘000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case. s 5) Before the Tribunal, the claimant examined as many as three witnesses including himseif (AW-1 Dilip Kumar, AW-2 Sukalu @ Sukkai and AW«3 Ramkhilawan) in support of his claim. For the reasons best known to the claimant, no doctor was examied before the Tribunal to establish the nature of the n injuries said to have been sustained by the claimant in the motor accident and the fact that those injuries resulted in any permanent disability. ~6) 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, reported 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 Court, 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 High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy’s medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr. KM. Mitra and awarded a just and fair e compensation. The High Court erred in disturbing the (Q same ggd gnnaggigg the comgegsgtigg. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims TribunaL The respondent-claimant is auowed to withdraw the amount of compensation awarded by the Tribunai, if it has not already been withdrawn.” The Apex Court in a recent dictum in the case of Rajesh another, reported in Kumar alias Raju V. Yudhvir singh and (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. lt 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 certificate had not been examined. Unless the author of the certificate > examined himself, it was not admissible in evidence. Whether the disability at 60% was calcutated on the basis of the provisions of the Workmen’s Compensation Act or otherwise is not known. It is 7) 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. ln absence of any contentionhaving 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 x 8) The medical certificate and the disabitity certificate produced by the cgaimant 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 in the case. 9) We, therefore, do not find any scopefor enhancement of the compensation awarded by the Tribunal. 10) The appeal filed by the appellant/ciaimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. 11) No order as to costs. ‘ I \Sd/f\” Sd/— b J R.N. Chandrakar i 1 ChiefJustice ‘b \\ Judge l subbu f