HIGH covRT or: CHHATTISGARH AT aimspgg MISC APPEAL NO. 173 OF 2003 a APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT 1988. (Singie Bench: Hon'ble Mr. N.K. Aqarwal, Ji) Presem' : 5hri Amiyakanf Tiwari, counsei for- *heappeHan'r. Shri Anand Gupfa, counsei for responden‘i’ No.3. ovaAL‘oabea (Passed or: 20*" say 0f Augasf, 260?) The insTanf appeai is direcfed agains'r fhe award du‘red 11-09-2002 seeking enhancemenf of compensm‘ion passed by First Addifional Moior Accidents Claims Tribunal (for shor‘i’ “the s APPELLANT : Dr. Laxmi Kan‘r Dwivedi 5/0 Shri B.P. [claiman‘i’] Dwivedi, aged 47 year's, Occupa‘rion - APPLICANT Medical Officer, R/o R/9 Adarsh Nagm“, r Durg, Disfr-icf Durg (C.G.) Versus a RESPONDENTS 1‘ Ram Jee'f Sahu 5/0 Mangiu Ram Sahu, OPPOSITE R/o Bagieshwar- Posf - Kanharpuri, Disfr. PARTV Rajnandgaon, Through - Truck Owner, Jaspa‘ Singh Bha‘ria, R/o Gram - Bagnadi, DIS‘H’. Rajnandgaon (C.6.) 2. 5hri Jaspal Singh Bhafia 5/0 Sardar Khajan Singh, R/o Gram - Bagnadi, bisft Rajnandgaon (6.6.) (No. 1 & 2 are formai parties) RESPONDENT 3. The Divis‘ional Manager, Nafionai N03 Insurance Company L'l'd., Akash 6cm9a Compkx, Supela Bhilai, DisTricf bur-g (Con-resfinq Respondenjj Tribunal), Durg in Claim Case No.63/2002 whereby and whereunder km amoun‘f of Rs.30,000/- has been awarded. as compensa‘rion fowards injuries sustained by ‘the appeilam. 2. grief fac‘l’s of ‘rhe case are ‘H'Iaf on 31-05—2000, the appeHan'r along wi'rh one Dr. TN. 5ingh was going To Eajnandgaon by hisnewéy purchased Maru‘l'i Car bearing regis'rm‘rion No. MP 24- 6/6249. Due 1'0 red signal on fine way 1'0 Rajnundéaon, fhe appeilan‘r parked his Care fhe offending vehicle (Truck) NO.MKR 1019 which was driven by responden'l' No.1 rashiy and negiigenfiy dashed ‘rhe maru'ri car, a resuif of which car was damaged and fhe appeiianf aiso susfained injuries. 3. The appellanfs fiied Claim Pefifion under See'l'ion 166 of The Mofor Vehicles Ac‘i', 1988 (for shorf ‘fhe Acf‘) ciaiming compensation fo The ‘fune of, Rs.6,10l338l- agains‘l' fl'ie owner, driver and insurer of she offending vehicle. 4. The learned Tribunai on appreciation of evidence and ma‘terial available on record, passed the award and awarded compensation of Rs.30,000/— for The injuries sustained by fhe appellan't, rejecting his claim for damage ‘to ‘the vehicie. 5, The only submission made by Shri Amiyakanf Tiwari, learned counsel for 'i'he appellan‘t is fhaf ai‘though Doctor has nof been examined 'to prove fhe injuries susfained in ‘the acciden‘t bu? iooking ‘to ‘the nafure of‘ injury susfained by The appeilan'tt ‘ s compensaiion awarded by The ieamed Tribuna! is shockingiy of lOWer side. 6. I have heard iearned counsel for- ?he appeHanf and perused fhe record. 7. For 'rhe reasons bes'l' known +0 fhe dppelianf, he has nof examined The docfor 1'0 prove fhe injury sustained by him. 8. The ques‘rion whether medical cer‘tifica‘re produced by ‘ihe ciaimanf before The Tribunal wifhouf examining 1he docTor' who issued The cerfifica‘re can be relied upon as subslan'rive evidence for fhe assessmenf of ‘rhe compensa‘rion came up for .considerafion before The Apex Cour‘r in The case of AP. 5R7? v. P. Thimpa/ Raddy, reporfed in (2005) 12 SCC 189, wherein if was observed in para 6 as under: “6. AfTer hearing learned counsel for ‘rhe responden'r- claiman'l‘ who made an a'r'remp‘r fo supporf The order of 'l'he High Court we find fha‘i‘ fhere was no jusfificafion for The High Cour? 'l’o rely on ‘rhe disabili'ry cerfificai'e issued by Dr. Sudhakar Reddy and enhance The compensa'iion by ‘irea‘ring The injury as permanen‘r disabili‘ly fo be 45 per cent The High Courf commiffed qross error in overlookingjhe facT fhaf Dr. Sudhakar Reddy‘s medical cer‘l'ifica'i‘e was rejec‘i‘ed by 1‘he Tribunal for non-examinafion of fhaf docfar. The Tribunal has defermined 1'he physical disabili‘ry a? 15 per cen'l' on 'lhe basis of fhe deposi'rion of Dr. KM. Mifra and awarded a jusf and fair compensafion. The High Court erred in disfurbing fhe same and enhancinq fhe compensafion. Consequeni’ly, we allow fhis appeal, sei’ aside fhe impugned order and resfore fhe award of The Claims Tribunal. The respondenT-claimanT isallowed To wifhdraw The amounT of compensaTion awarded by The Tribunal, if iT has no‘r already been wiThdrawn." 1% @ ,9. The Apex Cour‘r in a men? dictum in fhe case of Rajesh Kumar alias Raju v. Vudhvir Singh and another, repowfed in (2008) 7 SCC 305, reifemfed +he some view wifh the foHowing observa‘rions in para 11 : “11. The cer‘rifioafe in ques‘rion in fhis case was ob‘rained affer fwo years. If is no'r known as +0 wheiher ‘rhe Civii Surgeen of 1‘he hospiml trea‘l‘ed 1'he appaHam’. On wha‘f basis, such a cer-Tificai'e was issued Two years affer fhe acciden‘i Took place is no‘r known‘ The au‘i'hor- of The said cerfificm‘e had na‘i been examined. Unless fhe aufhor‘ of fine cer‘rificai'e examined himself i1" was noi‘ admissible in evidence. Whe'l'her- fhe disabili'ry ai' 60% was calcula‘ied on The basis of The provisions of the Workmen's Compensation Ac? or ofherwise is no? known. I‘r is also no'r known as ‘l’o whe'i'her he was compefen‘i' ‘l'o issue such a cer‘i'ifica'l'e. If even does no‘i appear 1ha1' The conTenTions raised before us had ei'l’her' been raised before The Tribunal or fhe High Cour'l'. The Tribunal as also fhe High Cour? , fherefore, proceeded on The maferinls broughf on record by The par‘l'ies. In absence of any confen'l'ion having been raised in regard 'i'o The applicability of The Workmen's CompensaTion‘ AcT which, in our opinion, ex facie has no applicaTion, The same, in our opinion, cannoT be permiTTed To be raised for The firsT Time." 10. The Division Bench of This High CourT in case of Fradcep Kumar saliu vs. Saws Sahu & mafher vide order daTed 31"“ March, 2009 placing iTs reliance upon The dicTa of Supreme CourT in The cases referred above held in para 8 as under: “8. In view of The above quoTed dioTa of The Apex CourT in The cases of AP. SRT€ v. .R Thma/ Reddy (supra) and Rqjesh Kumor alias Rafa v. Yudlm'r Singh and anoflwr (supra), The cerTifioaTe produced before The Tribunal in The absence of examinaTion of The DocTor issuing The cerTifioaTe is neiTiier admissible in evidence nor can be Taken inTo consideraTion‘ as subsTanTive evidence for assessmenT of The compensaTion in The case." 11. enhancemenf of the compensation awarded by The Tribunal. 12. For The for-ageing reasons; I do no'f find any scope for The appeai filed by the appeHan'r/claiman'r for enhancemen'r of fhe compensafion, fherefore, is liable To be dismissed and is hereby dismissed. / 13. No o’rder as 1'0 cosfs. ‘ ,x SM- give. NIK'Agai'Wa‘ Judge “(Ix