M g? . WW LN wEw $9M‘ IN THE'HIGH COURT OF CHHA'ITISGARH AT BILASPUR (CG) M.A.No. W3 @ [2004 Sadesh son of Patel,aged about 6 APPELLANT 6/, *r years, minor, through : naturai guardian Smt ‘KuT11aro Bai, wife of Shri Patei,‘ aged about 28 years, resident of village Kakna, Post Bariyon, Poiice Station Dhaurpur, Tah. Ambikapur, Distt. Surguja (Chhattisgarh) VERSUS RESPONDENTS f y Rakesh Agrawai, son of Suresh k Agrawal, aged about 21 years, 1. i Suresh Agrawal son of Not known, aged about 50 years, Both are resident of viilage Kakna, Police Station Dhaurpur, Post S Bariyon, Tah. Ambikapur, Distt. urguja (Chhattisgarh) 3. The United India insurance / Company, Ram Mandir Road, mbikapur, Distt. Surguja (CG). MISCELLANEOUS APPEAL UNDER SECTIOIN $32) OF THE CT FOR ENHANCEMENT OF AWARD MOTOR VEHICLE A u, ”mag,“ u , / HIGH COURT OF CHHATTISGARH AT BILASPUR ‘ M.A. No. 1238/2004 APPELLANT Sadesh Rakesh Agrawal and other - ’ ’ PRESENT :— Shri ushil Dubey, dvocate for the appellant. Shri Manoj Mishra, Adv. for the respondent No. 1 and 2. Shri Pankaj Agrawal, Advocate r respondent No. . (1-9-2010) Appellant is eeking nhancement of the compensatn wared by the I Additional Motor Accident Claim ribunal, Ambikapur, Sarguja (for short “the Tribunal”) Vide award dated 3——2004 psed in Claim Case No. 3003. As gainst t copensation f Rs. 2,65,000/— claim by the claimant by filing a claim petition under Section 166 o the Motor Vehicles Act, 1988 or the injuries sustained y him in the motor accident on —2—2002, the Tribunal awarded a total su of Rs. 700/- as compensatn. Shri Sushil Dubey, learne ounsel for the appellant vehemently argued that th Tribnal s erred in awardin lo compensation of Rs. 7,000/- only for th injuries sustained by the claimant in the said accident, whereas the: claimant sustained multiple serious injuries in the motor accident. For the reasons best known the claimant no doctOr was examined before the Tribunal to' establish the nature of the injuries said to have been sustained by the claimant in the / Versus RESPONDENTS *’§B: HONBLE SHRI I.M. QUDDUSI 8a HONBLE SHRI N.K. AGARWAL, JJ S A fo 3 o RA L o R D E R 3 Per I.M. Quddusi, J s e io ad s; s T 9 as 2/2 a he m o ed f f b 10 m ,0 io d c e u ha g w e motor accident and the fact that those injuries resulted in any ermanent disability‘ 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. SR’l‘C v. P. Thirupal Reddy, reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under : “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 High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy’s medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and farecompensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore s \ the award of the Claims Tribunal. The respondent—claimant i 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 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 question 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 examined. 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 before 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, In absence of any contention having been raised in regard to the applicability of the Workmen’s Compensation Act which, in our opinion, ex p facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time.” In the instant case, it is not proved as to how many days the appellant remained in hospital. It is also not proved as to how much amount he spent in treatment and, therefore, considering the facts and circumstances of the case, particularly when the doctor has not been examined to prove the injury and certificates, an amount of Rs. 7000/— has been awarded as compensation to the claimant. 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 certificate produced before the Tribunal in 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. For the fOregoing reasons, I do not find any scope for enhancement of the compensation awarded by the Tribunal. The appeal filed by the appellant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. No order as to costs. Sdl- l.M.Quddusi Judge j Sdl- 1/ N. K.Agarwal Judge “,w.‘ V