..-^%( .^^^^ 2 <?<»',.^'•s>v ^it6'A.--' RESPONDENTS: NON-APPLICANTS IN THE HIGH COURT OF JUDICATURE AT BILASPUR fC.G.') M.A. (C) No. 21 ^>- /2006 APPELLANT : Somanath Chhura, S/o Late Arjun CLAIMENT . Chhura, Aged about 19 yrs., R/o Vrindawan Nagar, Kushalpur Near of Kho-Kho Talab, Purani Basti Raipur, Tah. & Distt. Raipur (C.G.) VERSUS 1. Sohan Lal, S/o Rama Ram Sahu, Aged about 22 years., R/o Vill. Parastarai, Dharseewa, Tah. & Distt. Raipur (C.G.) <~2. Mesors Chhattisgarh Constructions Co., Through Managing Director, C.G. Construction Co., 52, Mahalaxmi Market Pandari Raipur,Tah. &Distt. Raipur (C.G.) ,3. The New India Insurance Co. Ltd, Through Divisional Manager, Divisional Office, Kachahari Chowk, Jail Road, Raipur (C.G.) Miscellaneous Appeal under Sectionl73 ofthe Motor Vehicle Act. 1994 rf'" ^ 3 HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL (C} No. 217 OF 20W Appellant Claimant Respondents Non- applicants Somanath Chhura Versus Sohan Lal S Others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. (SB: Hon'bte Mr. N.K. Aaarwal. J.) Present Shri SC Verma with Shri Aditya Khare, Advocates for appellant. None for respondents. ORDER (Passed on 13'" day of November, 2009) l-1eard on admission. 1. The instant appeal has been preferred by the appellant, seeking enhancement of compensation against the award dated 29.04.2006, passed by the XIllth Additional Motor Accldent Clalms Tribunal (FTC), Raipur, (for short 'Tribunal') in claim case No. 90/(%. 2. The brief facts of the case according to appellant are that, on 15.04.2005, the appellant met wlth an accident by Jeep bearing registration No. CG-04/B-5839, due to which the appellant susteined injuries. 3, The appellant preferred an application before the Tribunal under Section 166 of the Motor Vehicles Act, clalmlng compensation to the tune of Rs. 23,00,000/- for the injuries sustained by hlm on account of the said accident. 4. The Tribunal, on a close scrutiny of the'evldence led by the parties, the material available on the record, and submlssions of the parties, awarded total amount of Rs. 50,000,/- as compensation in favour of the appellant. 5. Learned 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 grievous Injury, and amount awarded is '•"°s-aaa shocking on lower side, this appeal may be allowed and the amount of compensatlon be enhanced. 6. I have heard the leamed counsel appearing for the appellant and pemsed the record. 7. The Supreme Court in case of A.P. SRTC v. P. Thftupa/ Rwldy, reported in (2005) 12 SCC-189, observed in para 6 as uncter "6. Aftor hearing leamed counsel for Uie respondent- claimant who made an attempt to support the order of ttie Hlgh Court. We find that there was no justification for the 1-ligh Court to relyon the disabitity certificate issued by Dr. Sudhakar Reddyand enhance the compensation by treating the injury as permanent disability to be 45 per cent. The High Court committed gross error in overiooking the fact that Dr. Sudhakar Reddy's medical certificate was rejected bythe Tribunal fbr non-examination ofthat doctor; The Tribunal has determined the physical disabilHy at 15 per cent on the basis of the deposifion 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 compensaUon awarded by the Tribunal, if It has not already been withdrawn." 8. The Supreme Court in a reeent dictum in case of Rajesh Kumar allas Raju v. Yudhvir Singh and another, reported In (2008) 7 SCC 305, reiterated the same view with the following observatlons in para 11: "11. The certificate in question in this case was obtained after two years. It is not known as to whether the Cwtl Suigeon 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 cerdficate examined himself, it was not admissible in evidence. Whether the dlsability at 60% was calculated on the basis of the provisions of ttie 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. yt ., even does not appear that the contentions raised before us had either 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 contenb'on having been raised in regard to the applicability of the Workmen's CompensaUon Act which, in our opinion, ex facie has no application, the same, in our opinionr cannot be permitted to be raised for the first time." 9. A Division Bench of this 1-ligh Court in case of Pradeep KumarSahu vs. Sarupa Sahsi & another vide order dated 31 March, 2009, placing its reliance upon the dicte of Supreme Court in the cases referred above held inpara 8 as under: ^'^z .,~N>: r^i ;\ N i i,V i •^I^JF^ '^? "8. In view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thirupal Reddy (supra) amS Rajesh Kumar alias Raju v. Yudhvir Singh anif aiwther (supra), the certificate produced before the Tribunal in the absence of examination of the Doctor issuing the certificate is neither admissible in evidence nor can be taken into conslderation as substanUve evidence for assessment of the compensation in the case." Kvr 10. Admittedly, the claimant 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 of the Doctor issuing the injury reports, certificates are neither admissible in evidence nor can be taken Into consideration as substantive evidence for enhancement of compensation in the case. 11. For the reasons mentioned herelnabove, l do not find any scope for enhancement ofthe compensation awarded by the Tribunal. 12. The appeal filed by the appellant for enhancement of the compensation is therefore liable to be and is hereby dismissed. No order as to costs. —--^^ r^^^; Sd/- ' -. N.K. Agrawa! Judge