'^ \ @ IN THE HIGH COURT OF JUDICATURE AT BILASPURfC.G) .N^VZOOS Division Bench MISCELLANEOUS APPEAL N0. 7 APPELLANTS rCLAIMENTS Naim Khan, Aged about 25 yrs. S/o. Nashir Khan, Occupation - Riksha puller, R/o - Manikchauri, P.S. - Abhanpur,Tahsil & District - Raipur (C.G.) RESPONDENTS /NON-APPLICANT< > VERSUS Ramswarup Sharma, S/o R.N. Sharma Marut' owner, R/o Village - Kukera, Post Manohara, Police Station - Darsiwa Tahsil & District - Raipur (C.G.) The Oriental Insurance Co. Ltd. Through—Divisional Manager, Division Office No. 1, Kachahari ChowkJail Road, .^••-^y'v Raipur(C.G.) ^MISCELLANEOUS APPEAL UNDER/SECTIOrTl73 MOTOR VEHICLE ACT 1988 HIGH COURT OF CHHATTISGARH AT BILASPUR MANo.1084 of 2005 Appellant Respondents : Naim Khan Versus Ramswarup Sharma & Another ^ ../ APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT (SB: Hon'bte Mr. N.K. Aaarwal. J.l Present : Shri AL Singhroul, Advocate for appellant. None for the respondents. ORALORDER (Passed on 4th day ofMay, 2010) Heard on admission. 1. The instant appeal has been preferred by the appeliant, seeking enhancement of compensation against the award dated 30.06.2005, passed by the XIVth Additional Motor Accident Claims Tribunal, Raipur (for short 'the Tribunal') in claim caseNo.13/05. 2. The brief facts of the case according to the appellant are that, on 23.08.2003, the appellant met with an accident with Truck bearing registratioh No. WB- 23 -9726, due to which the appellant sustained multiple injuries. 3. The appellant preferred an applteation before the Tribunal under Section 166 of the Motor Vehicles Act, claiming compensation to the tune of Rs. 7,00,000/- for the injuries ?->^-.. . . . • . ... sustained by him on account ofthe said accident. 4. The Tribunal, on a close scrutiny of the evidence (ed by (he parties, the materialavailable on the record, and submissions of the parties, awarded total amount of Rs. 17,0007- as compensation in favour ofthe appellant. 5. Learned counsel for the appellantwould submit that although the Doctor has ndrbeen examined in this matter, but looking to the fact that the appellant sustained multiple injuries, and \, . -^ t •^Wff amount awarded is shockingly on lower side,this appeal may be allowed and the amount of compensation be enhanced. 6. I have heard the learned counsel appearing for fhe appellant and perused the award impugned. 7. The Supreme Court in case of A.P. SRTC v. P. Thirupal Reddy1, observed in para 6 as under: "6.After hearing learned counsel for the respondent- daimant who made an attempt tosupport the order of the High Court. We find that there was no justification for the High Court to rely on the disabilify certificate issued by Dr. Sudhakar Reckly and enhance the compensation by treating ttie injury as permanent disability to be 45 per cent. The High Court committed gross error in overtooking the fact tiiat Dr. Sudhakgr Reddy's medical c^rtificate was rejected by ttie Tribunal for non-examination of that docfa>r. The Tribunal has determined the physicarf disability at 15 per cent on the basis of the deposition o1 Dr. K.M. Mitra and aw^rded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently. we allow this a^eal, 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, iffthas notalready been wdthdrawn." 8. The Supreme Court in a recent cUctum in case of Rajesh Kumar alias Raju v. Yudhvir Singh and another2, refterated the same view with the following pbservations in para 11 : "11 .The certificate in question in this case was obtained after two years. It is not known as to whettier the Civil Surgeon of the hospitat treated the appellant. On what basis, such a certificate was issued two years after the accident took place isnot known. The author of the said certdcate had not been examined. Unless tiie author of ihe certificate examined himself, it was not admissible in evidence. Whether the disabil'rty 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 cert'rficate. It even does not appear that the contentions raised before us hadeither been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefQre, proceeded on the materials brought on record by the peirties. In absence of any^rtention havingbeen raised in regard to the applicability^ftheWorkmen's Compensation Act which, in our opinion, ex fade has no application, ttie 1^;^ 12005(12)SCC189 2 2008(7)8cc 305 ^y^ ^^^•^ •^^ ^ '€ ^- Sahu same, in our opinion, cannot be permitted to be raised forthefirsttime." 9. A Division Bench ofthis High Court in case of Pradeep Kumar Sahu vs. Sarupa Sahu & aoottervide order dated 31st March, 2009, placing its reliance upon the dteta of Supreme Court in the cases referred above held in para 8 as under: "8. In view of the above quoted dida of the Apex Court in the cases ofAP. SRTC v. P. TlvrupalRedcly (supfa) and Rajesh Kumar alias Rayu v. YwSwir Singh and another (supra), the certificate produced before the Tribunal in the absence of examination of the Doctor issuing the certificate is neitheradmissibte in evidence nor can be taken into consicteiation as substantive evkience for assessment of the compensation in the case." 10. Admittedty, the claimant in his own wisdoni did not examine Doctor to prove the injury sustained in the accident and to prove the resultant loss. In view of the dicta of the above referred cases, the injury reports, certiflcates produced, in the absence of examination of the Doctor issuing the In}ury reports, certificates are neither admissible in evidence nor can be taken into consideration as substantive evidence for enhancement of compensation in the case. 11. For the reasons mentioned hereinabove, l do not find any scope for enhancemert of the compensation awarded by the Tribunal. 12. The appeal filed by the appeHant for enhancement of the compensation is therefore liable to be and is hereby dismissed. No order as to costs. Sd/- N. K. Agarwal Judge 'a3S3*S?'S2S=STO