^•^' ^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR fC'.G.) M.A. fC) ^S-/2010 -8 APPELLANT : ,^rt- ^^•v'.,- ^^•^ S-.^. L.\<S^' ^-:y:y^ A6* :..^' •?,t0" ^' RESPOJ1DENTS NON-CLAIMANTS .Mukesh Tandan S/o. Late Tetku Ram Tandan, aged 35 years, R/o. Satnami Para, Mana Basti, Post Mana Basti, P.S. Mana Camp, Tahsil and District RaipurfC.G.) VERSUS ^- Damodar Sharma S/o. Madhav Prasad Sharma, aged 55 years (Driver), R/o. R.D.A. Colony, House No. 40/93, Sanjay Nagar, Raipur, Tahsil and District- Raipur (C.G.) Superintendent, Chhattisgarh Sfate Garage, Near Kali Mandire, Ahead the Akashwani, Tahsil and District Raipur (C.G.), The State of Chhattisgarh, Through : The Collector, Raipur (CG) Miscellanceous Appeal under Section 173 of the Motor Vehicle Act., 1_?94 sass mOH COUST OF CHHATnSGARH AT BILASPUR MISC. APPEALfQ No. 65 OF 2010 APPELLNT Mukesh Tandan Versus R^PONDENTS Damodar Sharma and ofhers SINGLE BBNCH:- Hon. Shri N.K. Agarwal, J PRBSBNT :- Shri S.C. Verma tvith SIiri Aditya Khare, Advocate, for appellaiit. ORAL ORDER (21-1-2010) AppeUaiit/claimant is seeking enhanceiaent of the compensation .awarded by the Xth Additional'Motor Accident Clairas Tnbtm.al, Raipur (for short "fhe Tribunal") vide award dated 10-11-2009 passed ia Claim Case No. 34/2009. 2. As agamst fhe coiapensation of Rs. 13,50,000/- claimed by the appeUaut/ claunant by fijiag a claim petition uiider Section 166 of fhe Motor Vehicles Act for the iajuries sustaiued by him ia fhe niotor accident on 19-8- 2008, the Tribuiial awarded a total sum ofRs. 20,282/- as compeasation. 3. Shri Khare, leamed counsel for the appeBaat veheinenfly argued tliat the TribiLO.al has erred ia awaniing loiw coiupensation ofRs. 20,282/- onty, whereas fhe appeUant/ claimaat sustained multiple serious iajuries m. the inotor accident. 4. Por the reasons best known to the appeUaat / claiinant no doctor was examiaed before fhe Tribunal to estabUsh the nature of the iajuries said to have been sustaiaed by fhe appeUaat/ claunant ia liie inotor accident and fhe fact fhat fhose iajuries resulted in aay permanent disabiUty. 5. The question whefher the medical certificate produced by the claunaat before the Tribunal wifhout exainiaine fhe Doctor who issued the certificate caa be relied upon as substantive evidence for the assessinent of fhe coinpensation cdme up for cousaleratioa before the Apex Court in fhe case ofA.P. SRTC v. P. Thirupal Reddy, reported ia (2005) 12 SCC 189, wherem it was observed ia para: 6 as under : "6. After heariag learaed counsel for fhe respondent- claimant who inade aa attempt to support fhe order of the H%h Court, we find that there was ao justification for the High Coiut to rely oa fhe disabflity certificate issued by Dr. Sudhakar Reddy and enliaace fhe compensation. toy treatms the iajury as pemiaaent disability to be 45 per cent. The High Court com.initted_gross_error in. overlookuig the fact fhat Dr. Sudhakar Reddy's medicaLcertificate was rejected bj_the Tribunal for non-examination of thaLdoctor. The Tribunal has determined the physical disabilitv at 15 per cent on the basis of fhe det>ositi.on of Dr. K.M. Mitra aud awarded a iust -fc-.. ^-sy^^^ff;-'^^ '^S^CTBP^;^^^^^^^- and fair compensation. The High Court erred ia disturbine the same and eiihanciag ftie coinoensation. Coiisequently, we aUow this appeal, set aside the impugned oider and restore the award of the Claiins Tribunal. The respondent- claunaat is aUowed to wifhdraw the amouitt of eonipensation awarded by the Tribunal, if it has not already been wiflidrawn." 6. The Apex Court in a recent dictum. iu fhe case of Rajesh Kumar alias Raju v. Yudhvir Sin^h aad another, reported ia (2008) 7 SCC 305, reiterated fhe same view wifh the foUowiag observations in para 1 1 : "11. The certificate iii question ia thls case was obtauied after two years. It is not known as to whefher the Civil Surgeou of ftie hospital treated the appeUaat. On what basis, such a certiificate was issued two years after the accident took place is not kaown. The aufhor of fhe said certificate had not been examiaed. Unless the author of the certificate examiued himself, it was not admlssible in. evidence. Whether fhe disability at 60% was calculated on fhe basis of the provisions of fhe Workmen's Coinpensation Act or otherwise is not known. It is also not known as to whether he was coinpetent to issue such a certificate. It even. does not appear fhat the conteations raised before us had either been raised before the TribT.inal or the High Gourt. The Tribunal as also the High Court, fh.erefore, proceeded on fhe iiiaterials brought on record by the parties. In absence of any contention haviag been raised iu regard to the appUcabflity of fhe Workmen's Coinpensation Act which, ia our opinion, ex facie has no application, fhe same, ia our opicuon, caniiot be pemutted to be raised for fhe first time." 7. In the iastant case, it is not proved as to how much ainount the claiinant spent in treatmeut and, therefore, considering fhe facts aad circunistaaces of the case, particularly when the doctor has not beeu examined to prove the injury aad certificates, aa amount of Rs. 20,282/- has been awarded as compensation to the claunant. 8. In view of the above quoted dicta of fhe Apex Court in the cases of A.P. SRTC v. P. Thh-upal Reddy (Supra) aiid Rajesh Kumar alias Raju v. Yudhvir Singh and aaother (Supra), the cerd&cate produced before fhe Tribunal in fhe absence of examination of fhe Doctor issuing flie certificate is neifher adiaissible in evidence nor caa be taken iato consideration as substantive evidence for assessment offhe compensation iu the case. 9. For tfae foregoiag reasous, I do not find aay scope for enhaaceiaent ofthe compensation awarded by the Tribunal. 10. The appeal filed by the appellant/clauiiaat for enhaaceiaent of fhe coinpensation, therefore, is liable to be disuiissed and is hereby disnussed. 11. No order as to costs. Sd/- N.K. Agarwal Judge A^,..-.-__3^.