••':\^ r— • ,ff f: ~\ IN THE HlGHCOURT OF CHHAtTISGARW^AT BILASPUR rC.G.l M.A. fCINO. Iff^ /2008 APPELI-ANT Bhuneshwar @ Kallu;. S/Q., Ra m k u ma r Dewa nga n,? a ged a bo ut 30 yea rs, R/og :^/jl la^e Uslapur, P.S, Ciyil Line,f Bilaspur (C.G.) • . VERSUS RESPONDENTS :1. e' 2. ^ Bha gatra m, S/o. Pa Fdesi S a tna m i, aged .a b out 28 ye a rs, R/o. S u r i g h at M ungeI i, .Tahsil Mungeli,. Distn^^^^^ Bilaspur (C.G.) Narottam . ,.P'rasa:d,. :;,^:,'/S/o. Pakarta Prasad; Kashygp, R/o. J a r h a g a o n, Di st ri ct B j tas p u F (C.G.) ..;.,.,..•. :;.-,.-,^/-^ ^ .y'^'^> •y.^ 3^ .( Pu n n ila 1, S/o. Latel-leeral a 1 Yadav, R/o. PrimarY Schopl Durga Mandir ^Chowk, •Torwa, Bilasp u r (C. G.) ^ Gwnep ^f Safari Motor Cycle N& 10-B-/8033 4, '^ 6. Bajaj Allianz ^:;'G&nera 1 Insu ra nce. Co m pa ri'y .l-im ited^' ThrQugh : BraneH; ..Manacfer^ Ki hfitic '; Fi nance,;-.'t-i.mi:1;edi,i Kinetic House, Sect6r;No.l;,' B- 53, Devnandan Nagar^ RaTpue ^.G.r^.^:::.['i\\^^^^^^^^^^^^^^^^^^^^^^^^ Camp In c h a rge, B. P .yKa s tiyap, Assistant Developn-ient etJ'fiGer Jen pad.Pa nGhayafc.^aKhatpt.iF,- District Bilaspur CC.G.^): 'K^ /liK State of Chh'attisgarh; Th roy g h : Col I ecto r, D istrjct . 61 las p u r (C.G.) ^,, ::.:,,:;...l:,,^-:i:^ '^ CLAIM BEFORETHETRIBUNAL ^.;t.',:.:;' - :.' :- AWARDAMOUNT^ ^ Rs.8,12,5CM!:l^- 5 Rs.OO,35,<K)OZ-? 3w; «E% .-:.; :.:,.VALUATIO:hLGFTHE;PRESENT:APPEAL:.';,;.;/Rs.02,50^JM®SjiIiH^ \a. wiKSs^QSWSsSSiSf.^' 'R^^T ^r^ <:^ ! vpx"s ;«e MISCELLANEOUSAPPEAL U/S. 173 OF THE MOTOR VEHICLE ACT> 1988 /• ^ HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.(C)No.10000F^08 Appellant Resoondents Bhuneshwar @ Kallu Versus Bhagatram & Othere. APPEAL UNDER 5ECTION 173 OF THE MOTOR VEHICLES ACT. (SB: Hon'bte Mr. N.K. Aaarwal. J.) Present : Shri Gautam Khetrapal, Advocates for appellant. Ms. Meenakshi Sharma, Advocate for respondent No. 2. 1. 2. 4. ORAL ORDER (Passed on 8th day of January, 2010) Heard on admission. The instant appeal has been preferred by the appellant, seeking enhancement of compensation against the award dated 29.11.2007, passed by the Vtllth Additional Motor Accident Claims Tribunal, (FTC), Bilaspur (for short 'Tribunal') in claim case No. 06/04. The brief facts of the case according to the appellant are that, on 02.02.2003, while the appellant was coming from Sakarra to Uslapur, the Driver of Maxi Cap Jeep bearing registration No. CG-10-ZA-0121 by driving the vehicle rashly and negligently dashed the appellant, due to which the appellant su^ained Injuries. The appellantpreferred an application before the Tribunal under Section 166 of the Motor Vehicles Act, claiming compensation to the tune of Rs. 8,12,500/- for the injuries sustained by him on accountofthesaidaccident. . The Tribunal, on a close scruttny of the evidence led by the parties, the material available on the record, and submissions of the parties, awarded total amount of Rs. 35,000/- as coropensation in favour ofthe appellant. 6. 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 fnjury, and amount awarded is shocking on lower side, this appeal may be allowed and the amount of compensation be enhanced. 7. I have heard the leamed counsel appearing for the appellant and perused the record. 8. The Supreme Court in case of A.P. SRTC v. P. Thlrupal Reddy, reported in (200S) 12 SCC-189, observed in para 6 as under: "6. After hearing learned counsel tor the respondent- claimant who made an attempt to support the order of the High Court. We find that there was no justification for ttie High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance ttie compensation by treating the injury as permanent disability fo be 45 per cent. The High Court committed gross error in overlooldng the fact that Dr. Sudhakar Reddy's medical certificate was rqected by the Tribunat for non-examination of that doctor. The Tribunal has determined the ph^ical 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 allow this appesl, set aside the impugned order and restore the award of the Claims Tribunal. The respondent- claimant is allowed to wittidraw the amount of compensation awarded by the Tribunal, if ft has not already been withdrawn." 9. The Supreme Court !n a recent dictum in case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported !n (2008) 7 SCC 305, reiterated the ^ime view with the following observations in para 11 : "11. The certificate in quesUon in ttiis case was obtained after two years. It is not known as to whether ttie Ch/il Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two yeare 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. tt even does not appear ftat the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, ttierefore, proceeded on the materials broughton record by the parties. In , absence pf any contention having been raised in regard to x the applicabitity ofthe Workmen's Compensation Acl which, '•-/ M:yS£i-^i^ ^a^Sa s if " I,"•»• a . ¥3 ^ %&~^^ ;<fe--. ^.y •-'-y in our opinion, ex faciehas no application, the same, in our opinion, cannot be permitted to be raised for the first time." 10. A Division Bench of this High Court in case of Pracfeep Kumar Sahu vs. Sampa Sahu & anothervide order dated 31 March, 2X19, placing its reliance upon the dicta of Supreme Court in the cases referred above held in para 8 as under: "8. In view 6f the above quoted dicte of the Apex Court in the cases of A.P. SRTC v. P. Thlrupal Reddy (supia) and Rafesh Kumar alias Raju v. Yudhvlr Singh and another (supra), the certificate produced before the Tnbunal 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." 11. Admittedly, the claimant in his own wisdom cNd not examine Doctor to proye the injury sustained in the accident and to prove the resultant loss. In vlew of the dlcta of the above referred cases, the injury reports, certificates produced, in the absence of examination ofthe Doctor issuing the injury reports, certificates are neither admissfble in evidence nor can be taken into consideration as substanth/e evidence for enhancement of compensation in the case. 12. For the reasons mentioned hereinabove, l do not find any scope for enhanceriient of the compensation awarded by the Tribunal. 13. The appeal flled by the appellant for enhancement of ttie compensation is therefore liable to be and is hereby dlsmlssed. No order as to costs. N.K.Agarwal Judge Kvr \: