^ c^^-./l' IN THE HIGH COURT OF JUDICATURE OF CHHATTISGARH AT BILASPUR g^ j •^oll ABPELLANT ^ CLAIMANT .fe.-. ^ ^- l^* "s^ RESPONDENTS NON APPLICANTS (DRIVER) (O^NER) (I^URER) M.A.(C.) No...315..../^ ^Deepak Kumar Patel S/o Beni Ram Patel, aged about 14 years, Minor Through : Legal Guardian S/o Beni Ram Patel S/o Sher Singh, Aged about 36 years, Residence Bajar Chowk, Sandongri, Post Tendua, Police Station Amanaka Raipur Tahsil District Raipur (C.G.) VERSUS ^ Deep Singh Thakur S/o Komal Singh, aged about 24 years, Occupation Truck Driver, R/o Hariyana Roadways G.E. Road, New Khursipar Bhilai, Distt Durg (C.G.) (DRIVER ofalleged vehicle) Shyam Sunder Agrawal S/o Anand Kumar, Occupation Truck Owner, R/o Main Market New .Khursipar, Bhilai, District Durg (C.G.) ,(OWNER of alleged yehicle C.G. 04-G/2413) The Oriental Insurance Company Limited through Divisional Manager, Divisional Office No.l, Kachahari Chowk, Jail Road Raipur, Tahsil & District Raipur (C.G.) (INSURER of alleged vehicle) .M^. C2.3 MEMO OF APPEAL UNDER SECTION 173 OF MOTOR VRHTCLE ACT 1988. • ">;\ (g) HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.fQNo. 383 of 2011 L APPELLANT Deepak Kumar Patel VERSUS RESPONDENTS : Deep Singh Thakur & others fAPPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT) fSB: Hon'ble Mr. N.K. Agarwal, J.) Pr6sent : Shri AL Singroul, Advocate for the appellant. ORAL ORDER (Passed on 04.04.2011) 1. The instant appeal has been preferred by the appellant, seeking enhancement of compensation ggainst the award dated 17.08.2010, passed by the IInd Additional Motor Accident Claims Tribunal Raipur (for short 'the Tribunal9) in claim case No. 50/2009. 2. Brief facts of the case according to the appellant are : on 26.02.2008, when the appellant was coming Sendongri from Gogain by motorcycle bearing registration No. CG-04-CV-7622, the said motorcycle was dashed by the driver of Tmck bearing registration No. CG-04-6221 as a result ofwhich the appellant sustained multiple injuries. 3. The appellant preferred application before the Tribunal under j Section 166 of the Motor Vehicles Act, claiming compensation /"- s\ ...... J^ v 'ii '^l-ys^^' ll ^ to the tune ofRs. 10,00,000/- for the injuries sustained by him on account ofthe said accident. 4. The Tribunal, on a close scrutiny of the evidence led by the parties, the material available on the record, and submissions of the parties, awarded total amount of Rs. 13,000/- as compensation in favour ofthe appellant. 5. Leamed counsel for the appellant would submit that although the Doctor has not been examined in this matter, but looking to the fact that the appellant sustained multiple injuries, and amount awarded is shockingly on lower side., this appeal may be allowed and the amountofcompensation be ehhanced. 6. I have heard the leamed counsel appearing for the appellant and perused the award impugned. 7. The Supreme Court in case ofAP. SRTC v. P. Thirupal Reddy, reported in (2005) 12 SCC-189, observed in para 6 as under: "6.After hearing leamed 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 fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently, we allow this appeal, 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, ifit has not already been withdrawn." 8. The Supreme Court in a recent dictum in case ofRajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same yiew with the following observations in para 11 : "ll.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 ofthe 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^loes not appear that the contentions raised before us had eitfecr 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 apjplicability 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." 9. A Division Bench ofthis High Court in case ofPradeep Kumar Sahu vs. Sarupa Sahu & another vide order dated 31st March, 2009, placing its reliance upon the dicta of Supreme Court in the cases referred above helU in para 8 as under: "8. In view ofthe above quoted dicta ofthe 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 inthe absence ofexamination ofthe 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." L. 10. Admittedly, the claimants in his own wisdom did not examine Doctor to prove the injury sustained in the accident and to prove the resultant loss. In view of the dicta of the above referred cases, the injury reports, certificates produced, in the absence of examination ofthe Doctor issuing theinjury reports, certificates are neither admissible in' evidence nor can be taken into consideration as substantive evidence for enhancement of compensation in the case. Neither multiple injury was found nor permanent disability certificate v/as filed. 11. For the reasons mentioned hereinabove, I do not find any scope for enhancement ofthe compensation awarded by the Tribunal. -'.fe-' 12. The appeal filed by the appellants for enhancement of the compensation is therefore liable to be and is hereby dismissed. No order as to costs. ' Sahu Sd/- N.K. Agarwal Judge r