^;^s r^.r^. -Vy; HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAIVI: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J. Respondents Non-applicants ! .! Misc. Appeal (C) No. 1617 of2009 Appellant : Amit Jain, s/oRatanlal Jain 18 years, (Claimant) R/o Bhairamdev Ward, Jagdalpur, Distt Bastar (CG) VERSUS 1 Purnima Tiwari, s/o Vijay Prakash Tiwari, 32 years, Vijay Prakash Tiwari 2 Vijay Prakash Tiwari; S/o Mathura Prasad Tiwari, 55 years, Respondent No.1 & 2 r/o Hikmi Para, Jagdalpur, Distt Bastar (CG) 3 The Oriental Insurance Co. Ltd., Branch Jagdalpur, distt. Bastar C.G. 4 Ratanlal Jain, s/o Keshavlal Jain, r/o Bhairamganj Para, Jagdalpur, distt. BastarC.G. 5 The New India Insurance Co. Ltd., Branch Jagdalpur, distt. Bastar C.G. Memo of appeal under Section 173 of Motor Vehicle Act Present: Shri Prafull Bharat, counse! for the appellant. None for respondents No.1 & 2 though served. Shri H.P. Agrawal, counsel for respondent No.3. Shri Vijay Sahu, counsel for respondent No.4. Shri Shreekumar Agrawal, Senior Counsel with Shri Anand Gupta, counsel for respondent No.5. ORDER rth (17mAugust,2011) ^^sss^\ ^:^\ M.A.(C)No. 1617 of 2009 ^ The following order of the Court was passed by Rajeev Gupta, C.J. Appellant/ claimant Amit Jain is seeking enhancement of the compensation awarded by the First Additional Motor Accident Claims Tribunal, Jagdalpur (for short 'the Tribunal') vide award dated 22.09.2009, passed in Claim Case No.114/2003. 2) As against the compensation of Rs.8,00,000/- claimed by the appellant/ claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for theinjuries sustained by him in the motor accident on 17.01.2003, the Tribunal awarded a total sum of Rs.31,930/- as compensation along with interest @ 7.5% per annum from the date of filing of the claim petition till the date of actual payment. 3) The Tribunal on a close scrutiny of the entire evidence led before it held that claimant Amit Jain sustained multiple serious injuries in the motor accident on 17.01.2003; the drivers of both the vehicles i.e. unregistered Marshall Jeep bearing Engine NO.AC-24-K-65760 and Chasis No. 22-K-53187 and Indica Car bearing registration No.C.G.05/4060 equally contributed to the accident and as such, their negligence was to the extent of 50% each; as the unregistered Marshall Jeep was insured with the Oriental Insurance Company Limited and the Insurance Company could not establish any breach of the policy conditions, the Orien!aL Insurance Company Limited was liable to pay 50% of the compensation assessed to the claimant; though the other vehicle :-^^^^ .^ M.A.(C)No.1617of2009 \c Indica Car was insured on the date of the accident with the New India Insurance Company Limited, but the nature of the injuries sustained by the claimant was not covered under the insurance policy, the New India Insurance Company Limited was not liable to pay the remaining 50% of the compensation assessed to the claimant and the liability in that behalf was of the owner-cum- driver of the Indica Car. 4) The Tribunal considering the number and nature of the injuries proved to have been sustained by the claimant in the motor accident awarded Rs.14,520/- towards medical expenses; Rs.5,300/- for conveyance; Rs.5,000/- for pain and suffering; Rs.3,000/- for attendant; Rs.2,110/- for special diet; and Rs.2,000/- for loss of studies. The Tribunal, thus, assessed the total compensation payable to the claimant at Rs.31,930/-. As the Oriental Insurance Company Limited, the insurer of the unregistered Marshall Jeep was found liable to the extent of 50% of the compensation assessed, the Tribunal directed the Oriental Insurance Company Limited to pay Rs.15,965/- as compensation to the claimant. The remaining sum of Rs. 15,9657- was directed to be paid by the owner-cum-driver of the Indica Car. The Tribunal further directed payment of interest on the above amount of compensation of Rs.31,930/- @ 7.5% per annum from the date of filing of the claim petition till the date of actual payment. 5) Shri Prafull Bharat, learned counsel for the appellant submitted that the Tribunal has erred in exonerating respondent No.5, the New India Insurance Company Limited, the insurer of M.A.(C)No.1617of2009 ^p^ the Indica Car from its liability to pay 50% of the-compensation to the claimant as the Indica Car was insured as a private car under a package/ comprehensive policy and by virtue of IRDA Circular of 2009, the risk of the occupants in a private car insured under a package/comprehensive policy is covered; the Tribunal has further erred in awarding low compensation of Rs.31,930/- only. 6) Shri Shreekumar Agrawal, learned Senior Counsel with Shri Anand Gupta, learned counsel for respondent No.5 the New India Insurance Company Limited, the insurer of the Indica Car could not dispute that after issuance of the circular by IRDA in the year 2009, the risk of the occupants in a private car insured under a package/ comprehensive policy is covered and the Insurance Company is liable to pay compensation to the claimant. Learned Senior Counsel, however, submitted that the compensation of Rs.31,930/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case and no enhancement of the compensation is warranted in this appeal. 7) Shri H.P. Agrawal, learned counsel for respondent No. 3, the Oriental Insurance Company Limited, the insurer of the unregistered Marshall Jeep supported the award. 8) Shri Vijay Sahu, learned counsel for respondent No.4 Ratanlal Jain, owner-cum-driver of the Indica Car in which the claimant was travelling also contended that the Tribunal has erred in exonerating the insurer of the Indica Car from its liability to pay compensation t6 the claimant. 1 3^ | .// .-y M.A.(C)No. 1617 of 2009 ^ ^ ^.( 9) Before the Tribunal, the claimant examined himself alone as AW-1 in support of his claim. For the reasons best known to the claimant, no doctor was examined before the Tribunal to establish the number and nature of the injuries said to have been sustained by the claimant in the motor accident and the fact that those injuries resulted in any permanent disability. 10) The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate 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 v. P. Thirupal Reddy, reported in (2005) 12 SCC 189, wherein it was observed in para6 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 Hiah Court committed aross error in overlookina the fact that Dr. Sudhakar Reddv's medical certificate was reiected bv the Tribunal for non- examination of that doctor. The Tribunal has determined the phvsical disabilitv at 15 per cent on the basis of the deDosition of Dr. K.M. Mitra and awarded a iust and fair compensation. The Hiah Court erred in disturbina the aame and enhancina the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The ^.^N !"i / M.A.(C)No.1617 of 2009 o- Q^ respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn." 11) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, 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 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 the 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 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." 12) The medical certificates produced by the claimant before the Tribunal without examining the doctors who had issued those V, M.A.(C)No.1617of2009 certificates, in view of the above quoted dicta of the 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), cannot be taken into consideration for enhancement of the compensation in the case. 13) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal. 14) So far as the finding recorded by the Tribunal in para 20 of the impugned award leading to exoneration of the New India Insurance Company Limited, insurer of the Indica Car in which the claimant was travelling isconcerned, it is apparent from the insurance policy of the Indica Car that it was a package/ comprehensive policy for a private car. It is not in dispute that by virtue of the circular issued by IRDA in the year 2009, which has been made applicable to the pending appeals also, the Insurance Company is liable to pay compensation to the claimant who is occupant of a private car insured under a package/ comprehensive policy. As in the present case, the claimant was occupant of the Indica Car which was insured under a package/ comprehensive policy, the finding recorded by the Tribunal leading to exoneration of the insurer of the Indica Car is liable to be set aside and is hereby set aside. We hold respondent No.5 the New India Insurance Company Limited liable to pay 50% of the compensation assessed by the Tribunal to the claimant. M.A.(C)No.1617of2009 ^ 15) Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties about the amount of interest on the balance amount of Rs.15,965/- to be now paid by respondent No.5 the New India Insurance Company Limited to the claimant, the amount of interest may be quantified in this appeal itself. 16) On due consideration of all the relevant aspects of the matter, we quantify the amount of interest on Rs. 15,9657- at Rs.2,035/-. 17) For the foregoing reasons, the appeal filed by the appellant/ claimant is allowed in part. While maintaining the quantum of compensation of Rs.31,930/- awarded by the Tribunal, we hereby set aside that part of the impugned award whereby the Tribunal exonerated respondent No.5 New India Insurance Company Limited, the insurer of the Indica Car from its liability to pay compensation to the claimant. Respondent No.5 the New India Insurance Company Limited now is directed to pay Rs.15,965/- as their share of the compensation of Rs.31,930/- awarded by the Tribunal to the claimant along with quantified amount of interest of Rs.2,035/- on the amount of compensation ofRs.15,965/-. 18) Respondent No.5 the New India Insurance Company Limited is granted three months' time for depositing the total sum of Rs.18,000/- (Rs.15,965/- as their share of 50% of the amount r- ^ M.A.(C)No.1617of2009 ^ subbu of compensation of Rs.31,930/- awarded by the Tribunal + Rs.2,035/- as quantified amount of interest on the amount of compensation of Rs.15,965/-) before the concerning Claims Tribunal. 19) No order as to costs. ___ _ Sd/- Chief Justice Sd/- R.N. Chandrakar Judge