N THE fflGH COURT OF JUDICATURE OF CHHATT1SGARH AT BILASPUR . ^-^ M.A.fO.No: /2009 .c^lr/ Appellants 1. Saiduddin Ali Khan aged about 65 years, S/o Rasduddin •^. *l- Resoondents ..^•'^ -^^ ^€p, y 4fc<& ^^L ft.' 1. R/o 316/5,Killa Mandir Ward Durg, Present address : near Nuri Masjid Faridnager Bhilai District Durg) Versus Imran KhanS/o Aijaj Khan R/o WardNo. 8, M.D.S. Murtijapur ^ nr'F,u,ri District Akeia Maliarastra) *---'-- ^^ (Driver of Offending Vehicle Truck No. MP/06/E/2843) Kalim Khan S/o Sarfaraj Khan jy. .R/o Lono Taklo, Akela_ ^^^ti fwl (Owner ofOfFending VeKicle Tmck No. MP/06/E/2843) 3. The Oriental lasurance Compaay Ltd. Through Regional Manager, Pannanand Complex,Rajendra Nager Insurance Compaoy ofQffeudiog Ve^icle No. MP/06/E/2843 Memorandum OfAppeal Under Section 173 ofMotor Vehicle Actl988 ,.^fejtf£' HIGH COIIRT OF CHHATTI80AKH AT BIIASPUR MISC. APraiAL (Cl »o.220/2009 APPELLAHT8 RB8PONDEMT8 Saiduddm. Ali Khan, agpd about65 yers, son ofRasduddin R/o 316/5, Killa Mandir Waid Dui^, Present address: near Nuri Masjid, Faridnagar, Bhilai, Distt. Duig Versas 1. Imran Khan,S/o Aijaj Khaa, R/o. WaBA No. 8, M.D.S. Murdjapur, Distrfct Amrawati, Maharashtra. Driver of ofFendn^ vehicle TruckNo. MP/06/E/2843) . 2. KaUm Khan, S/o Sarfaraj Khan, R/o Loao Taldo, Ainiavati. (owner of offeiuliag vehfcle No. MP/06/E/2843) 3. The Oriental Insurance Compaay Ltd. tfarough Regtonal Manager, Parmaaaud Complex, Rajendra Nagar Chowk, Diug Distt, Diu^, Insurance Conipany of ofiendii^ vehicle No. MP/06/E/2843 8B:- Hon. Shri N.K. Ag^rwal, J Ril PRE8BNT:- Shri Anui^ Jha, Advocate, for fhe appeUaat ORAL ORDER (30-3-2010) Per H.K. Aaarwal. J Heard on adnussion. 2. AppcUant/ daimant is secldr^ ciiliaacenient of the coinpensation awarded by fhe IIxidAdditional Motor Accident Claims Tribuaal, Durg (for short "the Tribunal") vMe award dated 15-10-2008 passcd ia Claim Case NQ. 48/2008. 3. As agaiast the compensation of Rs. 5,20,000/- claiaaed by fhe appeUaat/ claimaat by fiUag a claim pctition under Scctton 166 of fUe Motor Veliictes Act, 1988 fbr tfae injuries sustaiaed by hini ia the motor accident on 3-5-2007, fhe Tnbunal awanlcd a total sum ofRs. 6,362/- as compensation. 4. Shri Jha, tearaed counsel for tfae appeUaat vehemenfly argued that the Tribunal has erred in awacdin^; low compeasation'of Rs.6362/- oiity for fhe iajuites sustaiaed by the claimant ia the .^ said accident, whereas the appellant/ claiinant sustained multiple scrious mjttrics in the motor accidcnt Por fhe reasons best fettown the appcllant / claimant no doctor was examincd before the Tribunal to establtefa the natiuie oftfac iajuries sajd to havc been sustained by the appellant/ claimant in fhe motor accident aad fhe fact that fhose iujuri.es resiilted in any pennaaent disabiUty. The questfon whcfher tfae medical (»rtificate pioduced by the claimant bcfore thc Tribiuial without examining the Doctorwho issued thc certificate caa bc reMcd upon as substantive evidence for ffae ^sessnaent of the 'coiupensation camc up for consideration before fhe Apcx Court in the case ofA.P. SRTC v. P. TUrupal Reddy, reported in (8005) 12 8CC 189, whereai it was observed in para 6 as under: "6. After hcaring lcamed counsel for fhc respondent- cIaiinantwUo mseds an atteiapt to support tihie orderoffhe H^;h Court, we fiad that fhere was no justificatioa for the High Court to rely on the disabilily certificate issued by Dr. Sudhakar Reddy and enhaace the coinpensation by treating fhe iajuiy as permanent dfaabiUly to be 45 per cent. The Hiah Court conmutted sanss etror in overlooking fhe &ct that Dr. Sudhakar Reddv's incdieal ccrtificate 5^s reiected by Ae _Tribunal for non- exammation of fhat doctor. Thc Tribimal has determined the phYSiicaIiiisabilitv'at 15 Bercent on the basis ofthe deposition of Dr. K.M. Mitra aad awarded a iust aad fair compe^sation.. The Hidi Coiirt erred ia disturbiae the same and enhancnus the compensatfon. Cpnsequenfly, we aUow fhis appeal, set aside fhe nupi^acd order and restore fhe award of fhe Claims TEibiuial, The respondent-claimant te allowed to withdraw fhc amouat of compensation awarded by the Tribiinal, if it has not already been withdrawn." The Apex Court ia a recent dictum in thc case ofRajesh Kuniat altas Rajn v. Yndhvir Sln^i and another, rcported in (2008) 7 8CC 30S, reiterated fhe same view wifh tfie foBowing observations in. para 11: " 11. Thc certificate ia qucstioa m tfais case was obtomed aflter two years. Itfa not known as\o whcther fhe CivflSiu-geonefthchospitaltrcated fhe appeBaat. On what basis, such a certificate was issued two yeais afier fhe accident took place is not knowa. The aufhor of fhe sajd certificate had aot bcen examined. Uiiless the aufhor of the wrdficate examipwl MTnself. it was not admissible in cvidence. Whether thc disability at 60% was calculated on the basis of fhe provisioas of thc Workmen's Coxnpensation Act or otherwisc is not known. It is also not known as to whether he was coiapetent to issue such a certificate.It even does not li 1;:^.[ appear that tfae contentions raised before us bad eithcr been raised before thc Tribuaal or the High Coiu-t. The Tribunal as also fhe High Court, tberefore, proceeded on fhe materials broiaght on record by fhe partfes. In abscnce of aay conteution having been raised in regaid. to thc appUcabflity 6f fhe Workmen^s Compensation Act which, in our opinjon, ex facie lias no appUcation, the sanae, ia our opinion, cannot be pennitted to be raised for the first time." 8. In the instant case, as pcr dischargc tickct, fhe appeBaat reinaiaed in hospital onty for four days, whateyer llie axaount spent in the treatmeut has becn atlowed by the Tribimal cven in the absence of examinadon of doctor and theiefore, considerii^ •ttie facts and cirezuastaaces of the case, particularly when thc doctor has not been examiaed to prove the mjuiy and certificates, an amount of Rs. 6,362/- has beea awarded as compensation to the claimaat 9. In view of the above quoted dicfei of the Apex Court ia the cases ofA.P. 8RTC v. P. Tldruptd Reddy (Supr^ and Rajesh Kiunar allas R^jn v. Yudlivlr Siagh aad aaothCT (Supra), (he certificate produced bcfore fhe Tribunal ia the EAtscace of examination of the Doctor issuing fhe certfficatc fe neifher adiuissible ia evidence nor caa be taken into considerataon as substentive evidencc for assessinent ofthe coinpensation in the case. 10. For fhe foregou^ re^ions, I do aot find auy acope for enhauceinent offhe compensatfon awacdcd by the TnbtinaL 11. The appeal fited by thc appellant/claiinant for eiihancement of the coiapensation, tfaerefore, is liable to be dismissed aad te hereby dlsmissed. 12. No order as to costs. [.K. Agrawal., Judge