CNK/ IN THE HIGH COURT OF JUDICATURE OF CHHATTISGARH AT BILASPUR MA. No. g6 €€ /2002 ; Appellant : Igg‘Radha Bai, W/o Premlal, / aged about 35 years, No Village Amgaon, Thana Salywarq,‘3 /’ Tah. Chuikhadan Distt. Rajnandgaon VERSUS Sukhdev @ Sanju, S/o Dwarka Prasad, aged about 25 years, R/o Village Vadi, Tah. Chuikhadang Distt. Rajnandgaon (C.‘G.) Driver Sandeep Agrawal, S/o Shri Govindlal Agrawal aged about 27 years, R/o village Salywarq, U$ Tehsil Chuikhadan, Distt. Rajnandgaon (C.G.) Owner New India Insurance Company Ltd. Malazkhand, Tah. Baihar, Distt. Balaghat (M.P.)’ Insurer”, APPEAL U/S 173 OF THE MOTOR VEHICLE ACT ‘51’988 ‘ HIGH (EQQZQT OF G§%§‘€§%TT§§$M%§H QT m3 ii‘gm ai? MA No. 868 0f 2Q02 Appe§§ant Radha Ba: Versug §espondenig APPEAL UNDER SECTION 173 OF THE MOTOF? VEH!!’§L%S ACT $ukhdev ® $anju & QtherS: ISE: Hgn‘bée Ma: Ni? imarwaL JJ Prawem : Shri Rajnizxh Kumar Rad’wei, Adwcaic‘e for amwiianf None fei' the re$§ohdér§$ V; QQgan é?! (Pagsgd wa 2W way a? Amia, 23W; ‘ Heard can admésgsicxn‘ The imiani appeai ha$ been pw‘errad by m9 apnellanf. gagkiwj emhanmamen’c 0f campansaiion mains? the award dgted 2&0842QQ'2i g3a$$ed by the Additicmai MGM? Mwidgm CIQEWS Tribunal , Kha1it'agarh; Dim Rajnaiicigam {far smorf ‘tha Tri%’zLiwal’) in Claim case N0. ZD/QE‘ 2. §The brief facts 0T" the cage accerdEng ta: the appaiiant am fmai on 38.12.1997; whim the appei!ant was tmveéing in Maiamar bwaring fegistraiion N0. MP 23 D- 1375, tm said Mamdwfumed time due %o which the appeHant sustained injuriag. 3. The agpeilan‘c pre‘fesrrad an applicafion before fhe Tribwai Lmda? 3emi0n 166 of ihe Motor Vehicia$ Act ciaiming onmwnmiim ?n the tuna of Res 2,45,000i- for the in3ur3e$ sugtainw by him or! account of the said amident. 4. The Vibunal, on a dwé gm'uiiny of ‘rhe svidame §er§ hy W52 parks, the maierial avaimbiea on ihe record, and whmisabm: 0" me parties, awarded Ma; amount 0f Rs. 275OI~ 8Q mmmanaaiim in f&vour of the appellant. Learned nounsei fer the appaHant would 5ubmit fina‘t aHhnugh The Doctor has mar been examined in this marker. hut {ranking rn the fad that the appeiiant wstained multip!e §njuries, and. ammu‘ar. awarde is shackiny on iowar $idej this; appea may he ailawad armi the amou of compansaatien enhanced. i have hrd the learned coun$ei appeaaring or the amweuam aid ersed e award impugned. The Surame Caurt in case} Qf AR 3% M £3, €§?’i¥§?ai Qrfgfm eported in i2§$§§n ‘52 SQG—wa emerved in. gar?! éS as uaimi': "6.After hearing ieamed counsel forve reapandentgciman? who made ai1 a%€empt to support ae order of the Héh Cami We find that there was no ustificaion for the Hi Court t0 reiy on the dieabmiy certificate issued by Dr. $udhakar Reddy and enhance the compensation by treating the injury a permanent ‘ disability to be 45 pe’r cent. The High Court cemmiried groee " error in overiooking the fact ihet Dr. 3Lrclhal<er Recidy’e medical certificate was reecied b the Tribunal fer ne examination of that doctor. The Tribunei‘ determined phsical disability at 15 per cent on e basis of te deposition ‘ot r. KM‘. Mitre and awarded a just end far coensetn. The High Gourt erred in isturbing the same and enhancing the compensation. Consequentiy, we allow this appl set aeide the impugned order and restore the award of o Cieims Tribunal. The resondent-ciaimant is eilowed to withdraw the amount of oompention awarded by the Tune!) if it hes nt already been ithdrawn.” The Supreme Court in e recen dictum n oesz a Qegen imer ties Rein v. Yudi‘wir §ingb em? enete, red {twe} Tr 3e3t3 3%, reiterated the same View h th fotiewing o ”1.The certificate in quesn in thts eae wee ebtained etter two years. it is not known as to whether the Civil Saeon of the oepital treated the appellant. On what basis such a certificate was iesued two years after the accident t 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 admissibie in evidence. Whether the disabiiity at 60% was calculated on the basis of the provisions of the Workmen‘s Compensation Act or otherwise is not known. it is aiso not known as to whether he was competent to issue such a certificate. it even doee not appear that the contentions raised before us had either been raised before the Tribunai or the High Court. The Trihunai as also the High Court, therefore, proceeded on the materiais brought on record by the parties. in absence of any contention havino been raised in regard to the appiicabiiity of the Workmen’e Compensation Act which, in our opinion, ex facie has no appiication, the same, in our opinion, cannot be permitted to be raised for the first time. ,. fh ai ’h g it m s i v n h s *he y th h D i meio d “n ea. ea rib o w t i e t e tit e iir ennrt in e ‘ wit e bservations in pare 11: 1 tio s gg h , o k 4n d gi i rwt be ea f pg th o ?3 i§ @ r p ® 9; A' Division Bench of this High Court in case of Pradeep Kumar sahu vs.~Sarupa Sahu & another vide order dated 31g March, 2009, placing itsreliance upon the dicta of Supreme Courit in the cases referred above held in para‘B ae under: “8. in View of the above quoted dicta of the Apex Court in the cases of 'A.P. SRTC v. P. Thirupaf Raddy (supra) and Rajesh Kumar afias Raju v. Yudhvir ’Singh and another (supra), the certificate produced before the Tribune! in the absence of examination of the Doctor issuing the certificate is neither admisstble in evroence nor can be taken into conSIderation as substantive eVidence for assessment of the compensation in the case Admittedly, the claimant’ln his own wisdom 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 certrftcates produced in the absence of e'xamination of the Doctor iesumg the iniurv reports certificates are neither admisSible in eVidence nor can be taken into consideration as substantive evidence for enhancement of compensation in the case. or the reasons mentioned hereinabove l do not find anv scope f r enhancement of the compensation awarded by the Tribune! he appeal filed by the appellant for enhancement of the compensation is therefore liable to be and is hereby dismissed. i i i i i i i i l filo order as to costs. Set/- N. K. Agarwakk‘ Judge Sahu h