(• ^ Sw* ,^ss HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLESHRIRAJEEVGUPTA,C.J.& HON'BLE SHFU RANGNATH CHANDRAKAR, J. Appellant Claimant Respondents Non-applicants Misc. Appeal No. 799 of 2003 Shiva @ Shivanand Choubey S/o Krishna Prasad Choubey, Aged 35 years, R/o Shanti Nagar, Rajnandgaon, Tah & Distt - Rajnand Gaon (CG). VERSUS 1 Sukh dave Sahu, S/o';Phool Singh Sahu, Occupation Truck Driver, R/o Ganganagar, Khamtarai, Raipur, Distt-Raipur (CG). 2 Rakesh Kumar Bhediya, S/o Jumuklal Bhediya, R/o Akash Gas Service, Devendra Nagar, Raipur. 3 The Oriental Insurance Co. Ltd. Through Divisional Manager, Life- Insurance Marg, Pandari, Raipur Miscellaneous Appeal under Sectfon 173 of Motor Vehicles Act. 1988 Present: Shri S.C. Verma and Shri Aditya Khare, counsel for the appellant. QRDER >th (29m January, 2010) The following order of the Court was passed by / Rajeev Gupta, C.J. Appellant - Shiva @ Shivanand Choubey is seeklng enhancement of the compensation awarded by the Motor Accident ^laims Tribunal, Rajnandgaon (for short the Tribunal') vide award dated 07.07.2003, passed in Claim Case No.67/^02. ^^•^ •^ %SSi» ;^! 2). As against the compensation of Rs.46,00,000/- claimed by the appellant/claimant by filing a clalm petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 04.02.2002, the Tribunal awarded a total sum of Rs.31,589/- as compensation along with interest @ 9% per annum from the date of filing of the claim petition till the date of actua! payment. 3). Shri S.C. Verma and Shri Aditya Khare, jearned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.31,589/- only though the appellant/claimant sustained multiple serious injuries including fracture in the motor accident resulting in permanent disability. 4) Before the Tribunal, the claimant examined himself alone as AW-1 in support of hisclaim. For the reasons best known to the appellanV claimant, no doctor was examined before the 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. 5) The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who iss^ed the certificate can be relied upon as substantive evidence for the assessment of th^ compensation came up for consideration before the Apex Court in the case ofA.P. SRTC v. P. Thirupal Reddy, reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under: 3 ^ ^ '"^i^' ,^~ 6) "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 Hiah Court committed aross error in overlookina the fact that Dr. Sudhakar Reddv's medical Gertificate was reiected bv the Tribunal for non- examination of that doctor. The Tribiinal has determined the^Rh^ical disabilitv at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a iust and fair compensation. The Hiah Court erred in distutbina the same and enhancina the compensation. Consequently, we allow this appeal, 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." The Apex Court in a recent dictum in the case of Rajesh Kumar allas 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 thls case was obtained after two years. It is not known as to whether the Ciyil Surgeon of the hospital treated the appeliant. On what basis, such a certificate was issued two years after the accident took plaee is nof known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissable in evidence. Whether the disability at 60% was calcujated on the basis of the provisions of the ;;TJ'^!:.. "i ':".ll •"!^~i't-LL'-;'RwiS9!^r^ ,;.g';ai;'.'S:^*S£''''^''ii'i£^SSB;S^Bg I^S^^S.TISBSS^^aE!^^^^^aiE;IWU»->"t-^' '\ tt ''•• 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 evendoes not appear that the contentions raised before us had either been raised before the Tribunat or the 1-ligh 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 flret time." ^ 7) 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 certificates, cannot be taken into consideration for enhancement ofthe compensation in the case. 8) We, therefore, do not find any scope for enhancement of the compen^tion awarded by the Tribunal. 9) The appeal filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. 10) No order as to costs. __—- Sd/- ^ J I R.N. Chandrakar Chief Jiistice^ [ Judge subbu 1 .11: :j-!^;~—l-aT- It<^S?S(?*iH£ire^c^SF^%