F •^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J. Appellant Claimant Respondents Misc. Appeal No. 873 of 2004 Gouri Shankar Dubey, S/o. Shri Ram Dutt Dubey, aged about 36 years, occupation - Cable operator, R/o. Mothinagar Tikarapara, Raipur (CG). VERSUS 1 Sevaram, S/o. Suklal @ Lala Sahu, aged about 21 years, occupation Auto Driver, R/o. Lalpur, Raipur (CG). (owner of Auto trailer bring registration No. MP23/B.A/3140). 2 The Oriental Insurance Com. Ltd., Branch Office, Mhabir Gaushala K.K. Road, through Divisionat Manager, Divisional offce, Katohahari chowk, Raipur (CG). Miscellaneous Appeal under Sectfon 173 of Motor Vehicles Act. Present: Shri Y.C. Sharma and Shri Vivek Rathore, counsel for the appellant. Shri Vivek Chopra, counsel for respondent No.1. Shri D.L. Dewangan, counsel for respondent No.2. ORDER ith (28m January, 2010) The following order of the Court was passed by Rajeev Gupta, C.J. Appellant - Gouri Shankar Dubey is seeking enhancement of the compensation awarded by 4 Additional l\4otor Accident Claims Tribunal, Raipur (Tor short the Tribunal') vide award dated 21.01.2004, passed in Claim Case No.27/2001. ffl '^ f»< :J" J; '^s/ •'"'CT^"'-' 2). As against the compensation of Rs.5,50,000/- 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 13.07.1999, the Tribunat awarded a total sum of Rs.17,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 3). Shri Y.C. Sharma and Shri Vivek Rattiore, leamed counsel for the appellant vehemently argued that the Tribunal has enred in awarding low compensation of Rs.17,000/- only though the appellanVclaimant sustained multiple serious injuries including fracture in the motor accident resulting in permanent disabitity. 4) Shri D.L. Dewangan, learned counsel Tor respondent No.2 - The Oriental Insurance Company Limited, on the other hand, supported the award and contended that as the appellant could not establish that the injuries sustained by him In the motor accident resulted in any permanentdisability, the compensation of Rs.17,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case. 5) Shri Vivek Chopra, learned counsel for respondent No.1 Sevaram, owner-cum-driver of the offending vehicle also supported the impugned award. 6) Before the Tribunal, the claimant examined himself atone as AW-1 in support of his claim. For the reasons best known to the appellanV claimant, no doctor was examined before the [^: i'.'K '•"Ih Tribunal to establish the nature of the injuries said to have been sustained by the appellant/ claimant in the motor accident and the fact that those injuries resulted in any permanent disability. 7) 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 teamed 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 aross error in overlookina the Tact that Dr. Sudhakar Reddv's medical certificate was rejected by the Tribunal for non- examination of that doctor. The Tribunat has determined the phvsical disabilitv at 15 per cent on the basis ofttie depositionof Dr. K.M. Mitra and awarded a just and fair compensation. The High Court erred in disturbina the same and enhancing the compensation. Consequently, we allow this appeai, 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." i.^Afje^ltt^Si^.^A^A^tlBI @ 8) The Apex Court in a recent dictum in the 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 questlon 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 certificate had not been examinKl. 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 befose 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. tn 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 firat time." 9) 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), the medical certificates produced by the appellant/claimant before the Tribunal without examining the Doctors who had issued those subbu ^' certificates, cannot be taken into consideration for enhancement of the compensation in the case. 10) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal. 11) The appeal filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. 12) No order as to costs. __ _ _________ _ - sd/- Chief Justice Sd/- R.N. Chandrakar Judge \^-'{itt U