HIGH COURT OF CHHAmSGARH AT BILASPUR M.ANo.835 /2006 D.B.: HON'BLE SHRI JUSTICE SUNIL KUMAR SINHA Ss HON'BLE SHRI JUSTICE R.L. JHANWAR APPELLANT RESPONDENTS Indal Ram s/o Fagu Ram Kaushik aged about 22 Occupation-Labour R/o village Dhamki P.S. SE Tah Kawardha District Kabirdham(CG) Versus Ramesh Kumar aged about 20 years s/o Ramawtar Caste Lodhi, Occupation Tractor Driver R/o Gram Dhamki P.S. & Tah. Kawardha District Kabirdham(CG) Raraawatar Kaushik, aged about 45 years, s/o Sarju Kaushik Occupation Cultivating, R/o Gram Dhamki P.S. SE Tah Kawardha District Kabirdham(CG) Rayal Sundaram Alliance Company Ltd. First Store Rachap-^ Trade State S.N.D.T. Crossing Pluc No. 64, Law College Road,, Pune 411 004, Registered office 21 Petulus Road, Chennai 600 002. MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT Appearance : Sint. Renu Kochar, counsel for the appellant. Shri Ajay Mishra, Advocate appears on behalf of Shri Vinay .Pandey, counsel for respondent No.2. ~" None for respondents No. 1 8s 3 though served. %s%Bfe MA^Np. 835/2006 \ ^- JUDGMENT (13.08.2009) The following judgment of the Court was passed by Sunil Kuniar Sinha, J. (1) Heard. (2) The appellant/claiinant has filed this appeal under Section 173 of the Motor Vehicles Act for enhancement of the amount of compensation, awarded in Claim Case No. 09/2005, by the Additional Motor Accident Claims Tribunal(FTC), Kabirdham, District Kabirdham vide award dated 14th March, 2006. (3) The appellant/claimant filed a claira petition under Section 166 of the Motor Vehicles Act, claiming compensation of Rs.5,63,900/- on account of the personal injuries sustained ,by him in the motor accident, which took place on 21.1.2005. The appellant/claimant pleaded that he sustained multiple injuries in the said accident and he also sustained fracture ofright radius and ulna bone. The claimant examined himself as AW-1 and he also examined one Radhe Kaushik as AW-2 in support of his claim petition, whereas, Ramesh (NAW-1) and Dakor(NAW-2) were examined in rebuttal. The tribunal recorded a finding that the accident occurred on account of rash and negligent driving of the offending vehicle by its driver and the respondents were jointly and severally liable to pay the compensation of Rs.5,000/- along with cost of Rs.500/- to the appellant which they shall deposit within 30 days, failing which they shall be liable to pay interest at the rate of 7% per annum. (4) Smt. R'enu Kochar, learned counsel appearing on behalf of the appellant argues that though the appellant sustained multiple injuries and fracture and he also produced various certificates to this effect, but aYery low compensation has been awarded to him. M.A.No. 835/2006 (5) On the other hand, Shri Ajay Mishra, learned counsel appearing for respondent No.2 opposes these arguments and supported the award passed by the Claims Tribunal. (6) Though, the appellant/claimant examined above witnesses in support of his claim petition, but no Doctor was examined by the claimant to prove the injuries as also the medical certificates filed by him and that the injuries sustained by the claimant had resulted in any permanent disability. (7) 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 Reddu, reported in (20051 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 coinpensation 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 Reddv's medical certificate was reiected bv the Tribunal for non-examination of that doctor. The Tribunal_has determined the phvsical disabilitv at 15 oer cent on the basis of the deposition of Dr. K.M. Mitra and awarded a iust and fair compensation. The Hieh Court erred in disturbing the saine 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 compensadon awarded by the Tribunal, if it has not already been withdrawn." (8) The Apex Court in a recent dictum in the case of Rw'esh Kumar ulias Raiu v. Tudhvir 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 a-K—nfBBawiB'H.iy ,,;';,.'^ fe.^ ^- '^^"y"..,-<^' M.A^Lo. 835/2006 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 ndt adrnissible 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." (9) In view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thiruoal Reddy (Supra) and Rafesh Kumar alicis i?a/u v. Yudhidr Singh and another (Supra), the certificate produced before the Tribunal in the absence of examinatioti of the Doctor issuing the certificate is neither adinissible in evidence nor can be taken into consideration as substandve evidence for assessment of the compensation in the case. (10) For the foregoing reasons, we do not find any scope for enhancement of the compensation awarded by the tribunal. (11) The appeal filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. (12) No order as to costs. Sd/- Sunil Kumar Sinha Judge Sd/- R.L. Jhanwar Judge sunita