CD ^fi-^ ^ IN THE fflGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH MISELLANEOUS APPEAL (C) N0. - ^l 7^ OF 2006 (MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988) ^ fii^ APPELLANT CLAIMANT -^ RESPONDENT NON-CLAIMANTS ^t> ^^v Mohan Lal Chouhan (Thakre) S/o Tulram Chouhan (Thakre), aged about 03 years, [Appellant being minor on behalf of through his legal guardian father] Through — Tularam Chouhan (Thakre), S/o Vaman Chouhan, aged about 35 years, R/o - Village- Temri , Mana, Post - Mana, District - Raipur (C.G.) VERSUS Harsh Dubey S/o Shyam Narayan Dubey aged about 21 years, R/o- Telibandha, Ravigram, Sahu Bada, Raipur, Tehsil & District- Raipur (C.G.) Ku. Mamta Dubey S/o Harsh Dubey R/o- Telibandha, Ravigram^ Sahu Bada, Raipur, Tehsil & District- Raipur (C.G.) The Oriental Insurance Company Limited, Through Divisional Manager, Divisional Office, Chawla Complex, Devendra Nagar., Raipur, District- Raipur (C.G.) MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 ,..*•'^ .-fl6^^- ^^" ) HIGH COURT OF CHHATTiSGARH AT BiLASPUR MISC. APPEAL (C) No. 439 OF 2006 Appeliant Ciaimant Respondents Non-Claimant Mohan Lal Chouhan (Thakre) \^rsys Harsh Dubey & Others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. fSB: Hon'ble Mr. N.K. Aaarwal, J,1 Present : Shri Shivendu Pandya, Advocate for appellant. None for respondents. 1. 2. ORAL ORDER (Passed on 17th day of Decerrsber, 2009) Heard on M(C)P No. 1996/06, application for condonation ofdelay in filing the appeal. On due consideration, 1 am satisfied that the counsei for appellant has succeeded in expiaining the detay caused In fiiing this appea!. Accordingly M(C)P No. 1996/06 is allowed and delay caused in filing the appea! is hereby condoned. The instant appeal has been preferred by the appellant, seeking enhancement of compensation against the award dated 11.05.2006, passed by the Xlth Additional Motor Accident Claims Tribunal (FTC), Raipur, (forshort 'Tribuna!') in claim case No. 32/05. The brief facts of the case according to appellant are that, on 09.06.2004, the appeilant met wjth an accident by Marshal Car bearing registration No. CG-04/ZG-2439, due to which the appe!!ant sustained injuries. The appellant preferred an application before the Tribunal under Section 166 of the IVIotor Vehicles Act, claiming compensation to the tune of Rs. 2,75,00i0/- for the injuries sustained by him on account of the said accident. The Tribunai, on a close scrutiny of the evidence led by the parties, the material avaiiable on the record, and submissions of the parties, 8. £. 10. awarded total amount of Rs. 28,200,/- as compensation in favour of the appellant. Learned counsei for the appellant would submit that aithough the Doctor has not been examined in this matter, but looking to the fact that the appellant sustained grievous injury, and amount awarded is shocking on lower side; this appea! may be allowed and the amount of compensation be enhanced. I have heard the learned counsel appearing for the appellant and perused the record. The Supreme Court in case of A.P. SRTC v. P. Thimpal R^d(Sy, reported in (2005) 12 SCC-1B9, observed in para 6 as under: "6. After hearing learned counsei for the respondent- claimant who made an attsmpt 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 compensatjon. 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 aljas Raju v. Yudhvir Singh and another, reported in (^008) 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 Civii Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took piace 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 aiso 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 appiicability 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." ^^ t S ;a-3@^ 11 inHiiiniii»» 12. 13. 14. A Division Bench of this High Court in case of Pradeep Kumar Sahu vs. Sarupa Sahu & snother vide order dated 31st March, 2009, placing its reliance upon the dicta of Supreme Court in the cases referred above held jn para 8 as under: "8. In view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thirupal Reddy (supra) and Raj'esh Kumar alfas Raju v. Yudhvir Smgh ancf another (supra), the certificate produced before the Tribunal in the abssnce of examination of the 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." 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. For the reasons mentioned hereinabove, 1 do not find any scope for enhancement ofthe compensation awarded by the Tribunal. The appeai filed by the appellant for enhancement of the compensation is therefore liable to be and is hereby dismissed. No order as to costs. —— Sd/- N. K. Agarwal Judge