w/ \ d” K 6%? wigw gg‘g‘k‘ m w: maH gamer m wncA'mnE AT nusm (m) qgé Q? 20@¢ ( moranam o£ MisaAppeal v/s 173 as M.v.’nct ) ammun- M.N9. A. : gnii‘smiu Paladta: n/o kmlakar Ealagtar ‘ r/a viliage sattipara mhan mlmy', mbikapur usuict surguja (m). eA‘sn xmar mpta ave sswaic mm Gupta 52 years; by caste. wishyam/a ‘ gags gaphra,9.a. 1391mm aistrict Jhpur (w) 0 ,swvalit mar magatrsm Jai mar magat - Jashpur (as) .v a§?y3r%§§%iu§3ns%§u$m§%? m“ g v I ‘ ,. . e& 39f years oecupation ariver.‘ , e ‘ g llage hawakara P. s. @pkara.‘15trict TMA K ‘f w a I. ' . ‘ / HIGH couRT OF CHHATTISGARH AT BILASPUR J; MA. No. 99s OF 2004 Appellant Ku. Sumita Palaskar Versus Ramesh Kumar Gupta & Others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT ‘ Respondents (SB: Hon'ble Mr. N.K. AqarwaL J4 Present : 'ShriWasim Miya, Advocate for appeHant. Shri Jai Prakash Shukla} Advocate for respondent No. 1 & 2. None for respendent No. 3 though served. ORAL ORDER e (Passed on 5t“ day of February, 2010) 1. The instant appeat has been preferred by the appellant against the award dated 13.07.2004, passed by the 5“” Additionai Motor .Aocident Claims Tribunat (FTC), Ambikapur (for short ‘Trlbunal’) in claim case No. 16/02 whereby and whereunder the claim petition preferred by the appellant has been dismissed. 2. The brief facts of the case according to the appellant are that, on 29.08.2600, while the appeiiant was traveling in Bus bearing registration No. OR 16/8489, the said Bus turned turtle due to which the appellant sustained simple injuries. The appellant preferred an application before the Tribunal under Section 166 of the Motor Vehicles Act, claiming compensation to the tune of Rs. 4,00,0DO/- for the injuries sustained by him on account of the said accident. The Tribunal, on a close scrutiny of the evidence led by the parties, the material available on the record, and submissions of the parties, dismissed the application preferred by theeppellant. 5. i have heard the learned counsel appearing for the appellant and perused the record. w 2 19 6. The appellant could not point out any ground suggesting any error in the award passed by the Tribunal. The Tribunal, on appreciation of evidence, held that the appellant has failed to prove the fact that she was traveling in the said Bus or sustained any injury in the said accident, and thereby dismissed the petition. Moreover, admittedly, the appellant has neither tiled any injury report nor examined any doctor to prove injury sustained in the accident and prove the resultant loss. The Supreme Court in case of A.P. SRTC v. P. Thirupal Raddy, reported in (2005) 12 SCC—189, observed in para 6 as under: "6.After hearing learned 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, if it has not already been withdrawn." The Supreme Court in a recent dictum in case of Rajesh Kumar aiias Raju v. Yudhvir singh and another, reported in (2008) 7 SCC 305, reiterated the same View with the following observations in para 11: “1 1 .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. Qn~what basis, such a certincate 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 of thaprovisions ‘of the Workmen's Compensation Act or othenm‘se is not known. it is also not known as to whether he was competent to issue such a certificate; it 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 contention having been raised in regard to 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.” 9. A Division Bench of this High Court in case of Pradeep Kumar Sahu vs. Sarupa Sahu & another vide order dated 313‘ March, 2009, piacing its reliance upon the dicta of Supreme Court in the cases referred above heid in para 8 as under: V “8. In view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P, Thimpal Raddy (supra) and Rajesh Kumar alias Raju V. Yudhvir Singh and another (supra), the certificate produced before the Tribunal in the absence of examination of the Doctor issuing the certmcate is neither admissible in evidence nor can be taken into ‘ consideration as substantive evidence for assessment of the gr compensation in the case r 10. Therefore, since the appellant has not adduced cogent and clinching evidence to prove her case; the Tribunal has not cl committed any illegality in dismissing the petition tiled by the ‘ ‘ appellant. 11. ln View of above, the appeal filed by the appellant being devoid of substance is liable to be and is hereby dismissed. No order as to costs. Sd/— N. K. AganNaI Judge Sfhu