v£h. P HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH <27 CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J. Appellant Respondents Misc. Appeal (C) No. 576 of 2009 Shatrughan Manjhwaraged 13 years s/o Narayan Singh through Narayan Singh s/o Thandaram (Natural Guardian) r/o village Koi, Police Station Rajgamarg, district Korba C.G. VERSUS 1. Santosh Yadav aged 26 years, r/o. village Pahanda, Police Station Urga, Tehsil & District Korba (CG) (Driver of offending vehicle No.CG- 12-C-0702.) 2. B.B. Verma aged 40 years, s/o. Naresh Verma, r/o. H.I.G-9, C-1, C- 2, N6ar Niharika Talkies, Tehsil & District Korba (CG) (Owner of offending vehicle No.CG- 12-C-0702) 3. Branch Manager, The New India Insurance Company Limited, Branch: Korba, T.P. Nagar, Korba, Tehsil & District Korba (CG). (Insurance Company of offending vehicleNo.CG-12-C-0702) Appeal ynder Section 173 ofthe Motor Vehicle Act. 1988 Present: Shri Anurag Jha, counsel for the appellant. Shri H.P. Agrawal, counsel for respondent No.3. ^si^l 'i ..,. // ^^ r""""" r-"L ORDER (11th July, 2011) The following order of the Court was passed by Rajeev Gupta, C.J. AppellanV Claimant Shatrughan Manjhwar is seeking enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Korba (for short 'the Tribunal') vide award dated 30.06.2007, passed in Claim Case No.280/2007. 2) As against the compensation of Rs. 16,10,0007- claimed by the appellanV claimant by filing a claim petition through his father Narayan Singh under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 05.04.2007, the Tribunal awarded a total sum of Rs.2,25,000/- as compensation along with interest @ 6% 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 the New India Insurance Company Limited, the jnsurer of the offending vehicle Dumper bearing registration No.C.G.12-C/0702 liable to pay compensation to the claimant. 4) The Tribunal considering the number and nature of the injuries proved to have been sustained by the claimant in the motor accident and the fact that the injuries and fracture sustained by the claimant in the motor accident led to the amputation of his right leg above knee and the amount proved to have been spent on treatment awarded Rs.1,80,000/- towards loss of the future earning capacity on account of the amputation ^^ii i ^ of right leg; Rs.21,000/- towards medical expenses; Rs. 15,0007- towards artificial limb and conveyance; Rs.5,000/- for pain and suffering; and Rs.4,000/- for special diet. The Tribunal, thus, awarded a total sum of Rs.2,25,000/- as compensation to the claimant for the injuries sustained by him in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.2,25,000/- @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 5) Shri Anurag Jha, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.2,25,000/- only though the appellanV claimant, a young boy aged about 13 years lost his one leg and would suffer physically and mentally for whole of his life. 6) Shri H.P. Agrawal, learned counsel for respondent No.3 the New India Insurance Company Limited, on the other hand, contended that the compensation of Rs.2,25,000/- awarded by the Tribunal, in view of the dictum of the Apex Court in the case of Nagappa Vs. Gurudayal Singh and others, reported in AIR 2003- SC 674 cannot be termed as inadequate so as to warrant enhancement in this appeal. 7) Claimant Shatrughan Manjhwar was aged about 13 years on the date of the accident. He was a student of 6th standard and was not having any independent income of his own on the date of the accident. -,...—^. ..-.'^.•^ ^^ "•-"»; ?0 8) Before the Tribunal, the claimant examined as many as two witnesses namely AW1 Narayan Singh and AW2 Dhuj Ram in support of his claim. For the reasons best known to the claimant and his father, 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. 9) 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 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 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 deBosition of Dr. K.M. Mitra and awarded a iust and fair compensation. The Hiah Court erred in disturbina the same and enhancina 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." 10) 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." 11) The medical certificate and the disability certificate produced by the claimant before the Tribunal without examining ^ /^- ^^ ^WWOM the doctors who had issued those 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 ofthe compensation in the case. 12) Even otherwise, the compensation of Rs.2,25,000/- awarded by the Tribunal when examined in the context of the dictum of the Apex Court in the case of Nagappa Vs. Gurudayal Singh and others (supra), wherein the Apex Court by enhancing the compensation of Rs.1,00,000/- awarded by the High Court by another Rs.1,00,000/- in all, awarded Rs.2,00,000/- for the amputation of leg, cannot be termed as inadequate so as to warrant enhancement in this appeal. 13) As we do not find any scope for enhancement of the compensation awarded by the Tribunal, the appeal filed by the appellant/ claimant for enhancement of the compensation is liable to be dismissed and is hereby dismissed. 14) No order as to costs. Sd/- Chief Justice Sd/- R.N. Chandrakar Judge nimmi