V-, L. •~I ........^...—A IN THE HIGH COURT OF CITriATTISGARH AT BILASPUR (CG) M.A.NO. ^'2-—OF2002 ^' APP2LLANTS CLAIMANT3 ./••^ <«• .."•"' ..^ '^ .»' ^.^' .l*' •••'y..•-"" D^Sultan Khan, S/o. Qulkhan Caste Muslim^ aged about 72 years, Occupation - Agrrptilturist & businesso 2)^Afli@.rmaan Khan, S/o, Sultan Khan^ Caste-Muslim, aged about 32 years^ Occupation- friculturist and business. ^,'y ^' ^- ^ Both are R/o. village Maani/ P,S» Pratappur^ Tah^ Pratapur, Distf- Surguja (Chhattisgarh)» VERSJS RESPONDENTS NON -SiPPLI GA NT3 ^,/' 3,)^ Chandeir Dash^ S/o, Bahal Dash^ Caste - Panika, ag^d about 25 years, Occupation- Driver, R/o. village Saleha" dih, P.S. Batauli. Present Address $ E,S. Kedarpur, P^S, & Tah, Ambikapur, Distt^ Surguja. DRIVER 2)^§wan Kumar Agrawal^ S/o^ Sagarmal Agrawal^ R/o^ ^ Jaistambh Chowk Ambikapur P.S, & Tah Ambikapur/.Distt Surguja (C.G.). (O^nert) ....... 02 [rr\ ) .1 J^- •^' L w l.to t^ 1> j^ \m t?o [co II g !<t 100 |s 1§ i< 1@ IM \s 1> l^ IVD ! 03 100 HIGH COURT OF CHHATT!SOARH AT 'K. AppelJants Clagmants Respondents M^A,No.32of2002 Suitan Khan & Another Versus Chandar Dash & Another APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT (SB: Hon'ble !V!r. N.K. AQan^aI, J.) Present : Shri Ashok Shukla With Shri Atanu Ghosh, Advocates for the appeliants. None for the respondents. ORAL 1. (Passed on 9In day ofAugust, 2010) The instant appeal has been preferred by the appeilants, seeking enhancement of compensation against the award dated 24.10.2001, passed by the Additional Motor Accident CIaims Tribunai Surajpur; Distt. Surguja (for short 'the Tribunai') in claim case No. 196/2000. Brief facts of the case according to the appellants are that, on 16.03.1991, while the appellants were traveiing in Hero Puoh bearing registration No. MOL/9S59, they met with an accldent with Jeep bearlng registration No.MBK/7570, due to which they sustained multiple injuries. The appellants preferred appiication before the Tribuna! under Section 166 of the Motor Vehicies Ac.t, claiming compensation to the tune of Rs. 5,00,000/- B 4,00,000/- respectively for the injuriessustained by them on account ofthe said accident. T'ne Tribuna!, on a close scrutiny of the evidence led by the parties, the material availabie on the record, and submissions of the parties, awarded total amount of Rs. 10>000/- & 5000/- respectlvely as compensation in favour ofthe appel'ante. ~"r--~- Tf ® ^>- 5. Learned counsel for the appeiiants would submlt that although the Doctor has not been examined in this matter, but looklng to the fact that the appeilant sustained multiple injuries. and amount awarded is shockingjy on lower side, this appeal may be allowed and the amount of compensation be enhanced. 6. I have heard the Searned counsel appearing for the appe!!ants and perused the award impugned, 7. The Supreme Court in case of fii.P. SRTC v. P. ThirapQl Reddy, reported in (2005112 SCC-189, observed in para 6 as under: "S.After hearing learned counsel for the respondent-claimant who made an attempt to support the order ofthe High Court. We find that there was no justification for the High Court to rely on the disabiiity certiflcate issued by Dr. Sudhakar Reddy and enhance the compensation by treatlng the injury as permanent disability to be 45 per cent. The High Court committed gross error in overiooking the fact that Dr. Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Trlbunai has determined the physical disabiiity at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. The Hjgh Court erred in disturblng the same and enhancing the compensation. Consequentiy, we allow this appeai, set aside the impugned order and restore the award of the Claims Tribunai. The respondent- claimant is allowed tb withdraw the amount of compensatlon awarded by the Tribunal, if it has not aiready been withdrawn." 8. The Supreme Court in a recent dictum in case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, relterated the same view w'rth the followlng observations in para 11 : "11 .The certificate in question in this case was obtamed after two years. It is not known as to vvhether the Civll Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took piace is not known. The author ofthe said certificate had not been examined, Unless the author of the certificate exomined himself, it was not admissible in evidence, Whether the disability at 60% was calcuiated on the basis of the provisions ofthe Workmen's Compensation Act or otherwjse is not known. It is a!so not known as to v^hether he was competent to issue such a certificate. !t even does not appear that the contentions raised before us had either been raised before the Tribunai or the High Court. The Tribunal ^ Sahu 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 sarne, in our opinion, cannot be permitted to be raised for the first tjme," 9. A Division Bench of this High Court in case of Praefeep Kiimar Sahu vs. Sarupa Sahu & snoth@r vlde order dated 31 March, 2009, placing its reliance upon the dicta of Supreme Court in the cases referred above he!d in para 8 as under: "8. 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. Yudlhvfr Singh and Bnother (supra), the certificate produced before the Tribuna! JP. the absence of examination of the Doctor issuing the certificate is neither admissible in evidence nor can be taken into consideration as substantive evidence for assessment of the compensation in the case." 10. Admittedly, the clalmants in his own wisdom did not examine Doctor to prove the injury sustained in the accident and to prove the resultant loss. !n view of the dicta of the above referred cases, the injury reports, certifjcates produced, in the absence of examination of the Doctor issuing the injury reports, certificates are neither admissible in evidence nor can be taken into consideration as substantive evidence for enhancement of compensation in the case. Neither multiple injury was found nor permanent disability certifjcate was filed. 11. For the reasons mentioned hereinabove, l do not find any scope for enhancement of the compensation awarded by the Tribunai. 12. The appeal filed by the appellants for enhancernent of the compensation is therefore liable to be and is hereby dismissed. No order as to costs. Sd/- — N.K. Agarwal Judge