IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL (C ) N0. (^ $2_ / 2007 (S.B.) Appellant (Claimant) Respondents Versus :1. Shatrughan Lal Sahu, S/o Shri Jeevrakhan Lal Sahu, Aged about 30 years, R/o Bharsela, P.S. 8& Tehsil Baloda Bazar, Distt. Raipur-(C.G.) Kashi Ram, S/o Tek Ram Verma, Aged about 35 years, R/o Village Chirra, ^ P.S. & Tehsil - Bilaigarh, ^'^y^ Dist : Raipur-(C.G.) ^•y^" y^ x^ ^^^'r ^:.^ 3. Mela Ram Sahu, S/o Unknown, R/o Village - Sanva, P.S. & Tehsil - Kasdol, Distt: Raipur-(C.G.) The New India Assurance Company Ltd., Divisional Office, Raipur, Distt. Raipur-(C.G.) MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTQR VEHICLES ACT, 1988. HIGH COURT OF CHHATTI8GARH AT BILASPUR APPELLANT M.A.rONo. 952 of2007 : Shatmghan Lal Sahu VER8US Kashi Ram <fe others RESPONDENTS {APPEALUNDER SECTION 173 OF THE MOTOR VEHICLES ACT) fSB: Hon'ble Mr. N.K. Agarwal, J.) Present : Shri 8K Guha, Advoeate for the appellant. ORALORDER (Passedon 14.07.2011) 1. The instant appeal has been preferred by the appellaRt, seeking enhancement of compensation against the award dated 03.05.2007, passed by tiie Ist Additional Motor Aecident Claims Tribunal Baloda Bazar (for short 'the Tribuml') m claim case No. 178/2006. 2. Brief facts of the case according to the appeUant are : on 17.02.2(X)6, when the appel|lant was riding on mQtorcycle bearing registration No. CG-04-CD-8974, the said motorcycle was dashed by the driver ofTrucli: bearing registration No. CG- 04-J-3544 as a result of which the appellant sustained multiple mjunes. 3. The appellant preferred application befbre the Tribunal imder Section 166 ofthe Motor Vehicles Act, Glaiming compensation to the tune ofRs. 6,06,000/- for the mjuries sustained by him on awount ofthe said accident, 4. The Tribunal, on a close scrutiny ofthe evidence led by the parties, the material available on the record, and submissions of \-^ the parties, awarded total amoimt of Rs. 2§,000/- as compensation in lavour ofthe appellant. ^^ t! ^•'^ 8. h Leamed coiinsel for the appellant would submit tiiat although the Doctor has not been examined in this matter, but looldng to the fact that Ifae appellant sustained multiple injuries, and amount awarded is shockmgly on lower side, this appeal may be allowed and the amount ofcompensation be enhanced. I have heard tiie leamed counsel appearing for the appeflant and perused the award impugned. The Supreme Court in case ofAP. SRTC v. R Thirupal KeMy, reported m ^005) 12 SCC-189, observed in para 6 as under: "6.After hearing leamed counsel for the respondent-claimaart who made an attempt to support tiie order ofllie High Court. We fmd tfiat tihiCTe was no justitlcation for the Hi^i Court to rely on the disabUity certificate issued by Dr. !§u<fliakar Reddy and enhance the compensatfon by treatmg the mjury as p^manetit disability to be 45 per cent. Tlie Higli Court committed gross error in overlookmg the fact tfiat Dr. Sudhalcar Reddy's medical eertificate w^s rejected by the Tribunal for non-^xammation of that doctor. The Tribunal has determined the physical disability at 15 p©rcent on ttw basis ofthe deposition ofDr. K.M. Mitra and awarded ajust and fair com^nsation. The Hi^i Court erred in distorbing the same and enhaaiGmg fhe eompensatioa. Consequently, we allow this appeal^ set aside the impupied order and restore the award of tlie Claiins Tributial. Tlie respcmdent-claimaiA is allowed to withdraw the amount ofcompensation awarded by tfie Tribunal, ifit has not already been withdrawiL" The Supreme Court in a recent dictiim in ease ofRajesh Kiunar alias Rajii v. Yudhvir Sin^i and anotiier, reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11 : "ll.The certificate in ^©rtionin this case was obtained after two years. It is not known as to whefher fhe Civil Surgeon of fhe hospital treated the aiyellant* Qn what basis, such a certificate was issued two years a&er the accident took placse is not known. The author ofthe said certificate had not been exammed. Unless the author of the certificate exammed himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis ofthe prOyisions ofthe Workmen's Compensation Act w otherwise is not known. It is also not knowi as to v^ether he was eompd.ent to issue such a certifieate. It even does not appear that the V^ ^;^\ ' /f^ '^ A ... .. ^ K3) ^ Sahu contentions raised before us had either beea raised befbre the Tribunal or the Hi^i Court. The Tribunal as also the Hi^h Court, therefore, proceeded cm fhe materials brought on record by tfae parties. In absence of any contentioa having been raised in regard to the appUcability of tlie Workmea's Compensation Act which, m our opinion, ex facie has no applicatioti, tfie saitie, in our opitiioti, caiMiot be penmtted to be raised forthe first time." 9. A Division Bench ofthis High Court m case of Prade^ Kumar Sahu vs. SampaScdtU & aiwther vide order dated 31 March, 2009, placing its reliance upon the dieta ofSupreme Coort in the cases referred above held in para 8 as under: "8. In view ofthe above quoted dicta ofthe Apex Coiirt m the cases ofAR SRTC v. P. Thwupal Red^ (supra) and Rajesh Kumw alias Raju v. Yudhvir Smgh and anothw (supra), the certificate produwd before the Tribunal in tiie absence ofexamination ofthe Doctor issumg the eertificate is neifher admissible in evidence nor caia be taken. into consideration as substantive evidence fbr assessment oftte compensation in the case." 10. Admittedly, the claimant in his own wisdom did not examine Doetor to prove the injury sustained in tiie accident and to prove the resultant loss. In view of the dicta of the above referred cases, the injury reports, certificates prodluced, in the absence of examination ofthe Doctor issuing the injury reports, certificates are neither admissible in evidence aor can be taken into consideration as substantive evidence for enhancement of compensation in the case. Neither multiple injury was found nor pennanent disability certificate was filed. 11. For the reasons mentioned hereinabove, I do not find any seope for enhancement ofthe compeasation awarded by the Tribunal. 12. The appeal jBled by the appellants for enfaaneement of the compen9ation,is therefore liable to be and is hereby dismissed. No order as to costs. v Sd/- N.K. Agarwal Judge