mvw^-f HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. HON'BLE SHRI RANGNATH CHANDRAKAR,J ADpellant Claimant Respondents MANo.112ot2005 Anil Nagwani, S/o Shri Bachhu Nagwani, Aged about 27 years, R/o Gandhi Chowk, Balala Bazar, Thana & Tah - Batoda Bazar, Distt - Raipur Versus 1 Ashok Kumar Verma S/o Shri Bhukhu Ram Verma Aged about 32 yeare Infront of Balak High School, Baloda Bazar Thana & Tah Balod Bazar, Distt - Raipur 2 The New India Insurance Co. Through Branch Manager, Garden Chowk Branch, Civil Line, Baloda Bazar, Thana & Tah - Baloda Bazar Distt Raipur Misc Appeal under SectiCTi 173 ofthe IVIotorVehicIeAct.1S88 Present : Shri SK Guha, counsel for the aj^aellant. None for respondent No.1. Shri Shivendu Pandya, counsel for respondent No.2. ORDER (8m January, 2010) The following order of the Court was passed by Rajeev Gupta, C.J. Appellant Anit Nagwani is seeking enhancement of the compensation awarded by the Second Additional Motor Accident Claims Tribunal, Batoda Bazar (for short 'the Tribunal') vide award dated 28.10.2004 passed in Claim Case No.93/2003. ^ 2) As against the compensation of Rs.4,00,000/-, claimed by the appeltant/claimant byflllng a claim petition underSectlon 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accldent on 18.06.2003, the Tribunal awarded a total sum of Rs.45,000/- as compensation along with interest @ 9% per annum from the date of filing of the ctaim petition till the date of actual payment. 3} Shri SK Guha, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding tow compensation of Rs.45,000/- only, though the appellant/claimant sustained multiple serious injuries including fractures in the motor accident resulting in permanent disabillty. 4) For the reasons best known to the appellant / claimant, no doctor was examined before the Tribunal to establish the nature of the injuries said to have been sustained by the appellant/claimant in the motor accident and the fact that those injuries resulted tn any permanent disability. 5) The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certiflcate 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.SRTC Vs P. Thirupal Reddy reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under: "6. After hearing teamed counsel for the respondent - claimant who made an attempt to support the order of the High Court, we flnd 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 disabllity to be 45 percent. The High Court committed gross errorin overiookina the fact that Dr Sudhakar Reddv's medical certlficate was reiected bv the Tribunal for non-examination of that doctor. The Tribunal has determined the phvsicat disabilitv at 15 oer cent on the basis of the dep(®itlonof Dr KM Mttra and awarded a iust and fair compensation. The Hiah Court erred in disturbina the same and enhancina the compensation. Consequently, we allow this appeai, set aside the impugned order and restore the 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 wthdrawn." 6) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju Vs Yudhvir Singh and anottier, 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 ptace is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself. 'rt was not admissible in evidence. Whether the disability at 60% was catculated on the basis of the provisions of the ~:r%. /^i'% \ 1 I •»,. J /S ^K^ 4 Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certiflcate. It even does not appear that the contentions raised before us had eittier been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materiais 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 whtch, in our opinion, ex facre has no application, the same, in our opinion, cannot be permitted to be raised for the first time." 7) In view of the above quoted dicta of the Apex Court in the cases of A.P.SRTC Vs P. Thirupal Reddy (supra) Rajesh Kumar alias Raju Vs Yudhvir Singh and another (supra), the medicat certificate produced by the appellant/claimant before the Tribunal without examining the Doctor who had issued the said certificate, cannot be taken Into conslderation for enhancement of the compensation In the case. 8) We, therefore, do not flnd any scope for enhancemCTit of the compensation awarded by the Tribunal. 9) The appeal, filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismlssed and is herebydismissed. •10) No order as to costs. padma Sd/- ChiefJustice Sd/- Rangnath Chandrakar Judge |