JN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G. M.A. (C) r^5/2009 §i wuw APPELLANT : (•'' Claimant ^•^^ ^^""- ..•^^~ &ESPONDENTS NON-CLAIMANTS , Mohammad Yar Khan, aged about 60 li' years, S/o. Late Mohd. Salamat Khan, A'0-!1''7.-.^'^" Occupation Tailering, R/o. Shyam ...-' Nagar, Raipur, Tahsil and District Raipur •."•" (C.G.) VERSUS ^' Sonu @ Harish Jaiswal, aged about 24 years, S/o. Santosh Jaiswal, Occupation Driver, R/o. NearSweta Near Ata Chakki, Fokat Para, Telibandha, Tahsil and District Raipur (C.G.) V.K. Dubey, aged about 39 years, S/o. Shyam Narayan Dubey, R/o. Village Fundhar, P.S. Telibandha, Tahsil and DistrictRaipurfC.G.), The United India Insurance Company Limited, Through The Divisional Manager, Division Office, Krishna Complex, Kachhari Chowk, Raipur, District Raipur (C.G.), MjscellanceQus ABB&gl underSection 173 of the Motoj: VehicleAct, 1994 MISC. APPEAL (C) No. 1393 OF 2009 'a^. Respondents Non- ciaimants Mohammad Yar Khan Versus Sonu 0>. Harish Jaiswal & Qthers APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. (SB: Hon'ble Mr. N.K. Aaarwal, JJ Present : Shri SC Verma with Shri Aditya Khare, Advocates for appellant. ORAL ORDER (Passed on 8 day of December, 2009) 1. Heard on IA No. 1, application for condonation of delay in filing the appeal. 2. On due consideration, 1 am satisfied that the counsei for appellant has succeeded in explaining the delay caused in fiiing this appeal. Aceordingly IA No. 1 is allowed and delay caused in filing the appeal is hereby condoned. The instant appeal has been preferred by the appellant, seeking enhancement of compensation against the award dated 10.02.2009, passed by the ist Additional Motor Accident Claims Tribunal, Raipur, (for short 'Tribunal') in claim case No. 28/08. The brief facts of the case according to the appellant are that, on 11.09.2007, the Driver of Car bearing registration No. CG-04/H-5517, by driving the vehicle rashiy and negligently dashed the appellant, due to which the appellant sustained injuries. The-appellant preferred an applicatlon before the Tribunal-under Section 166 of the Motor Vehicles*Act, claiming compensation to the tune of Rs. 10,00,000/- for She 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, awarded total amount of Rs. 15000/- as compensation in favour of the appellant. ^ 6. s^^"' 1-1 ^ 7. 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 shocking on lower side, this appeai may be allowed and the amount of compensation be enhanced. 8. I have heard the learned counsei appearing for the appellant and perused the record. 9. The Supreme Court in case of A.P. SRTC v. P. Thlnipal Reddly, reported in JE2005) 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 bythe Tribunat for non-examination ofthat doctor. The Tribuhal 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 aliow this appeai, set aside the impugned order and restore the award of the Claims Tribuna!. 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 alias Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the foilowlng obsen/ations in para 11: "11. The certificate in question in this case was obtained after two years. It is not known as to whether the CivilSurgeon 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 calcuiated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It isalso not known as to whether he was competent to issue such a certificate. tt even does not appear that the contentions raised before us hacl 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." A Division Bench of this High Court in case of Pracfeep Kismar Sahu vs. Sarupa Sahu & another vide order dated 31 March, 2009, @ placing its reliance upon the dicta of Supreme Court In the cases referred above held in 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 Rajesh Kumar alias Raju v. Yudhvir Singh and another (supra), the ceri:ificate 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 consideration as substantive evidence for assessment of the compensation in the case." 12. Admittediy, the claimant in his own wisdom did not examine Doctor to prove the injury sustained in the accident and to prove the resultant !oss, 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. 13. For the reasons mentioned hereinabove, l do not find any scope for enhancement ofthe compensation awarded by the Tribunai. 14. The appeal filed by the appe!lant Tor enhancement of the compensation is therefore liable to be and is hereby dismissed. No order as to costs. Sd/- N.K. Agrawal Judge •"•"'f.