^ .^^10 ^"^ ^ .,^ f< ^" ^^^ ^^' .^s' A) »»t^'ai^raXanti, W/o. |«&t®Oa^ltt Ram a@ed aliooit '6S year-s, B) -ateat@sti Kiaaiay ^adliayay,-aied ateoat. 45 yeara QY llygteoK •Kyaer X^adhayay,,. Aged ateout 32 years S) H®»lataifculcXa. N/o« i|aat@8fe abiikla. a@ed ala@ttt SQ-y@&t~s» S) Asfea Pais^leyo tt/o, Itavislsaniiar* afled ab@ttt • 47 years» ») Maajulata IBaakl** W/o. Bfeuwan ?ra®ad a@efl abaafe 42 y@ars ©) tieaXafca Sharrea, l»/@«<atyen@ra Ifearaa, 'aged ateaut 38 years, 8 t^ @ a11. soii®ana dau^teter of late ^dii Ram x?padteayay Reaide®!;of X>8iraial. 8astA» •SFaBjtir, ©istriot ^Tanjglir-Gtea^a (©•€•) -^ IN THE HON/BLE HIGH COURT OF CHHATTISGARH ATBILASPUR. , ..;.:".i^9i 11&..-K W-^]^^^' W^^^^ M.A. (ra No. Z^ /2008 (S.B.} APPLICANTS / CLAIMANTS 1. 2. ^-^ \4, s^* J?-' M^ ^° w . ,...-::'::^:,.^ ^^5-y \^-^,^- Dadu R^mUpadhyay aged about : 69 years, S/o. Late Bisahu Prasad Upadhyay, Advocate Gagan Upadhyay aged about : 08 years, S/o. Santosh Kumar Upadhyay, Minor Through Grand Father aduram Upadhyay^ Both R/o. Janjgir, Tahsil Janjgir, Distt. Janjgir Champa (C.G.) VERSUS RESPONDENTS NON-APPLICANTS ^ 1. Bhuvneshwar aged about : 35 years, S/o. Puri Ram Suryavanshi, R/o. Village : Jogidipa, Tahsil : Pamgarh, Distt. : Janjgir - Champa (C.G.) 2. ^' /• Manager, Parmeet Global Ltd. Chaubey Colony Raipur. National Insurance Company Raipur Branch, Raipur (C.G.) ^ w'" APPEAL UNDER SEFTTnM 1^^ np MOTOR VEHTn F ACT. 1988 ^ HIGH COURT OF CHHATTISGARHAT BILASPUR MISC. APPEAL No. 285/2008 APPELLANT RESPONDBNTS Dadu Ram Upadhyay and others Versus National Insurance Co. Ltd. and others SB:- Hon. Shri N.K. Aganval, J PRBSENT :- Shri Arul Pandey, Advocate, JGor the appeUants. ORAL ORDER (10-3-2010) Per N.K. Aearwal, J Heard on admi&sion. 2. Appellants/ claimants are seektog enhancement of fhe compensation awarded by the IInd Additional Motor Accident Claims Tribunal (FTC) Janjglr (for short "the Tribimal") vide award dated 17-1-2008 pass^l in M.A.C.T. No. 15/2007. 3. As against the compensation ofRs.1,42,100/- daimed by the appellants/ claimants by jBling a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by them in fhe motor accident on 19-8-2005, the Tribunat awarded a total sum of Rs. 28,000/- as compensation. 4. Shri AnU Pandey, leamed counsel for ttie appeUants vehemently argued fhat the Tribunal has erred m awarding low compensation of Rs.11,000/- only for the mjuries sustained by fhem in the said accident, whereas the appellants/ claimants sustained multiple serious injuries in fhe motor accident. 5. For the reasons best known the appellants / elaimants no doctor was examined before the Tribunal to establish fhe nature of the injuries said to have been sustained by fhe appellants/ claimants in fhe motor accident and fhe fact that those injuries resulted in any pennanent disability. The question whether the medical certiBcate produced the claimant before the Tribunal without exammmg the Doctor who issued the certfficate can be relied upon as substantive evidoice for the assessment of fhe compensation canie up for consideration before the Apex Court in tfae case of A.P. SRTC v. P. Thlrupal Reddy, reported in (200S) 12 SCC 189, wherein it was observed in para 6 as under : "6. After hearmg leamed counsel for fhe respondent-claimant who made an atteaB.pt to support fhe order of ttle High Court, we find that there was no justification for fhe High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating fhe injmy as permanent disability to be 45 per cent. The High Court coimnitted gross error in overlookmst fhe fact that Dr. Sudhakar Reddv's medical certificate was reiected bv fhe Tribunal for non-examination of fhat doctor. The Tribunal has detenntoed fhe phvsical disabUitv at 15 per cent on the basfe of fhe deposition of Dr. K.M. Mitra and awarded a lust aiid fair compensation. The Hieh Court erred in disturbing fhe ssane and enhandne fhe compensadon. Consequentiy, we allow fhis appeal, set aside fhe iinpugned order and restore fhe 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 fhe case of Rajesh Kumar alias Raju v. Yudhvir Sing^. and another, reported in (2008) 7 SCC 30S, reiterated the same view wifh fhe foBowing observations in para 11 : "11. The certificate m question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of fhe hospital treated the appellant. On what basis, such a certificate was issued two years after the acddent took place is not known. The author of tfae said certificate had not been examined. Unless the author of fhe certificate examined himself. it was not admissible m evidence. Whether fhe disability at 60% was colculated on fhe basis of the provisions of the Workmen's Compensation Act or ofherwlse is not known. It is also not known as to whefher he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before fhe Tribimal or the High Court. The Tribunal as also the High Court, therefore, proceeded on ttie materials brought on record by the pardes. In absence of any contention having been raised in regard to fhe applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opmion, cannot be permitted to be raised for the first time.w 8. In fhe instant case, it is not proved as to how many days fhe appeUant rematned in hospital. It is also not proved as to how much amount he spent in treatment and, theTefore, considering the facts and ctrcumstances of fhe case, particularly when the doctor has not been exaintoed to prove the injuiry and certificates, an amount of Rs. 28,000/- has been awarded as compensation to fhe claimant. 9. In view of fhe above quoted dicta of the Apex Court in fhe cases of A.P* SRTC v. P. Thirupal Reddy (Supra) and Rajesh Kumar allas Raju v. Yudhvir Sln^i and attother (Supra), fhe certificate produced before fhe Tribunal in the absence ofexaminationofthe Doctor issuing fhe certificate is neither admissible hi evidence nor can be taken into consideration as substantive evidence for assessment of the compensation in fhe case. 10. For fhe foregomg rcasons, I do not feid any scope for enhancement of fhe compensation awarded by fhe Tribunal. 11. The appeal filed by the appellant/claunant for enhancement of fhe compensation, therefore, is liable to be dismissed and is hereby dismissed. 12. No order as to costs. -——— Sd/- N. K. Agarwal Judge