< -r ,^^ IN THE HIGH COURT OF JUDICATURE OF C.G AT BILASPUR Bivlsion Bench1 M.A. N0. \ Lf^2-9^- OF2005 ^(PPELLANT CLAIMENT j/ Laxmi Bai/Wd/o Bharatlal Verma Aged about30 yrs,, R/o-Rajput Bhawan, P.S. - Raipur, Tahsil & District - Raipur R.ESPONDENTS ^ON-APPLICANT? ^.•^••K^- . .^^\""^.>"" ^^•>' VERSUS 1, Fransis Minj, S/o Ramsai Minj, C/o Abdul Malhmud Khan, S/o Abdul Wazir Khan R/o - Ward No. 40, Kasaridih, Durg Tahsil & District - Durg(C.G.) 2 Abdut Mahmud Khan, S/o Abdul Wazir Khan, R/o - Ward No. 40, Kasaridih, Durc Tahsil & District - Durg(C.G.) ^3.^The Oriental Insurance Co. Ltd., Through - ^ ^-Djvisional Manager, Division No. 2, / The Oriental Insurance Co. Ltd. Chawla Complex Sai Nagar, Raipur Tahsil & District - Raipur (C.G.) Miscellaneous Appeal under/section'<l73 Motor Vehicle Act 1988 p HIGH COURT OFCHHATTIS^^RH AT BILASPUR M.A. No. 1427 OF 2005 Appellant Claimant Respondents Non- applicants Laxmi Bai Versus Fransis Minj & Others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. (SB: Hon'bteMr.N.K.Aaarwal.J.l Present : Shri Aditya Khare, Advocates for appellant. Shri T.L.Dewangan, Advocate for respondent No.3. ORALORDER (Passed on 13tn day of January, 2010) 1. Heard on M(C)P No. 1741/05, application for condonation of delay infiling the appeal. 2. On due consideration, 1 am satisfied that the counset for appellant has succeeded Sn explaining the delay caused in filing this appeal. Accordingly M(C)P No. 1741/05 is allowed and delay caused in filing the appeal is hereby condoned. 3. The instant appeal has been preferred by the appellant, seeking enhancement of compensation against the award dated 24.02.2005, passed by the XIV Addttional Motor Accident Claims Tribunal, Raipur (for short Tribunal') in claim case No. 33/04. 4. The brief facts of the^case according to the appellant are that, on 21.05.2002, the appellant met with an accidert with Truck bearing registration NO.MP-24/C-1005, due to which the appellant sustained (njuries. 5. The appellant preferred an application before the Tribunal under Section 166 of the Motor Vehicles Act, claiming compensation to thetune of Rs. 6,32,000/- for the injuries sustained by him on account ofthe said accident. '^&Wi^^ l^ 6. The Tribunal, on a close scrutiny of the evidence led by the parties, the material available on the record, and submissions of the parties, awarded total amount of Rs. 45.000/- as compensation in favour of the appellant. 7. Learned counsel for the appellant would submit that atthough the Doctor has not been examined in this matter, but lookjng to the fact that the appellant sustained grievous injury, and amount awarded is shocking on lower side, this appeal may be allowed and the amount of compensation beenhanced. 8. I have heard the learned counsel appearing for the appellant and perused the record. 9. The Supreme Court in case of A.P. SRTC v. P. Thlmpal ffecfcfy, reported in (200S) 12 SCC-189, 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 commjtted gross error in overiooking 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. K.M. Mitra and awardeda just and fair compensation. The High Court erred in disturbing the same and enhandng the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Clajms Tribunal. The respondent-daimant Js allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn." 10. The Supreme Court in a recent dictum in case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (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 ofthe hospital treated the appellant. On what basis, such a certificate was issued two years after the acddent took place is not known. The author of the said certificate had noA been examined. Unless the auttior of the certificate examined himself, it was not admissible in evidence. Whether ttie disability at 60% was calculatect on the basis of the provisions of the Workmen's Compensation Act or ottierwise is not known. It is also not known as t6 whether he was competent '^ Er-e- 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 firet time." 11. A Division Bench of this High Court in case of Pradeep Kumar Sahu vs. Sarupa Sahu & anoffier vide order dated 31st Msffch, 2009. placing its reliance upon the dicta of Supreme Court in the cases referred above held in para 8 as under: "8. In view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thlrupal Reddy (suiva) suid Rajesh Kumar allas Raju v. Yudhvfr Slngh and another (supra), the certificate produced before the Tribunal in the absence of examination of the Doctor issuing the certificate is neither admissible in evidence nor can be taken into consideration as substantive evldence for assessment of ttie compensation in the case." 12. Admittedly, the claimant in his own wisdom did not examine Doctor toprove the injury sustained in the accident and to prove the resultant loss. In view of the dteta of the above referred cases, the injury reports, certiflcates produced, in the absence of examination of the Doctor issuing the injury reports, certifioates are neither admissible in evidence nor can be taken into consideration as substantive evidence for enhancement of compensation in the case. 13. For the reasons mentioned hereinabove, l do not fmd any scope for enhancement ofthe compensation awarded by the Tribunal. 14. The appeal filed B^ the appellant for enhancement of the compensation is therefore liable to be and Ss hereby dismissed. No order as to costs. T II . Sd/- .-—— ]| N. K. Agarwal 3 Judge Sahu