,*A^- IN THE HIGH COURT OF JUDICATURE AT BILASPUR fC.G.) M.A. fC) fo /2010 .-^..-.,.^;L-> ^ ^'iwn!!^ ' APPELLANT : ?'^ ^^- \~- • ...v-t^'^' ..^•'•'-" ^^^ Subal Vishwas, aged 16 years, S/o. Shanti Vishwas (Minor) : Naturla Guardian father Shanti Vishwas, aged 40 years, Son of Harbilas Vishwas, R/o. Block No. 21/3, Mana Camp, P.S. and Post Mana Camp, Tahsil and Disfrict Raipur (C.G.) RESPQNDENTS NON-CLAIMANTS VERSUS 1. Kripamaya Sahu, agd 40 years, S/o. Agasti Sahu (Driver), R/o. Pandari, Raipur, Tahsil and District- Raipur (C.G.) 2. Mohd. Yunus S/o. Abdul Latif, Jai Hind Garage, Bhaisfhan, Raipur (C.G.), 3. The Oriental Insurance Company Limited, Through : Divisional Manager, Division Office No.1, Kachahari Chowk, Jail Road, Raipur (CG) Miscellanceous Appeal un_deLSection 173 of the Motor_Vehicle_Act, 1994 T >n/ HIGH COURT OF CHHATTISGARH ATBUASPUR MISC. APPEALfQ No. 64 0_F 2010 APPBLLNT Subal Vishwas Versus RESPONDBKTS Kripamaya Sahu and 2 ofliers SINGLE BBNCH:- Hon. SIm N.K. Aganval, J PRESENT :- Shri S.C.Verma with Shri Aditya Khare, Advocate, for appellEmt. ORAL 05DER (21-1-2010) AppeUaat/clamiant is seekmg eiLhancciaent of the coiapeusation awarded by the IXfh Additional Mptor Accident Clauns Tribunal (FTCj, Raipur (for sliort "fhe Tribunal"} vide award dated 30-10-2009 passed in Claim Case No.67/2008. 2. As agamst fhe coinpensation of Rs. 15,20,000/- claimed by fhe appeflaat/ claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for fhe iujuries sustained by him in. fhe inotor accident on 24-11- 2007, ttLe Tribunal awarded a total sum ofRs. 37,000/- as compensation. 3. Shri. Venna, leamed counsel for fhe appeUant velieiaently argued fhat fhe Tribuiial has erred iu awarding low com.peusation ofRs. 37,000/- oD-ty, wbereas £he appellant/ claunant sustained nniltiple serious injiines in fhe inotor accident. 4. For tfae reasous best laiown. to the appellant / claimaut no doctor was cxamined before the Tribunal to estabUsh the nature of fhe injuries said to have been sustained by fhe appelSant/ claiinaiit in the inotor accident and fhe fact that fhose injuries resulted in aay permanent disability. 5. The question whether the inedical certificate produced by fhe claimaat before the Tribuaal without exaiainiiig fhe Doctor who issued the certificate can be relisd upon as substentive evidence for the assessinent of fhe coinpensatioa came up for consideration before fhe Apex Court in the case ofA.P. SRTC v. P. Thirupal Reddy, reported m J2005) 12 SCC 189, wherem it was obsen'ed ia nara 6 as under : "6. .After hearing leamed couiisel for the respondent- claimant who inade aa attempt to support the order of the High Coiul, we find tfaat there was no justification for the High Court to rely on the disabflity certificate issued by Dr. Sudhakar Reddy and euhaace the compensation by trcating fhe iujuiy as permaiient disability to be 45 per cent. The High Court committed gross en-or in overiookiag the fact that Dr. Sudhakar Reddv's mcdical certificate_was reiected bv fhe Tribiuial for non-exanimatioii of that doctor. The Tribunal has detennined fhe physical disability at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a iust Y> «»a» and fair comuensation. The High Court erred m disturbiag the same aad eiLhaaciag the compensation. ConsequenUy, we aUow tlns appeal, set aside the impugned order aad restore the award of the Clauns Tribunal. The respondent- claunant is aUowed to withdraw fhe aaiouut of compensation awarded by fhe Tribunal, if it has not already been withdrawn." 6. The Apex Court in a recent dictum in fhe case of Rajesh Kumar alias Raju v. Yadhvir Siagh and aaother, reported m (2008) 7 SCC 303, reiterated same view with the foUowuig observations ia para 11 : 11. The certificate ia questiou ia fhis case was obtained after two years. It is not known as to whether the Civil Surgeon of fhe hospital treated the appeUaat Oa what basis, such a certificate was issued two years after fhe accident took place is not known.. The auttior of the said certificate had not been examined. Uiiless fhe aufhor of the certificate examm.ed himself, it was not admissible iu evidence. Whefher fhe disability at 60% was calculated on the basis of fhe provisions of the Workmen's Compensation Act or othei-wise is not known. It is also not known as to whefher he was coinpetent to issue such a certificate. It even does not appear that the contentions raised before us had eifher been raiSed before the Tribunal or the High Court; The Tribunal as also the H^h Court, therefore, proceeded on fbe laaterials torought on lecord by the pardes. In absence of aay contention haviag been raised ia regard to the appUcabiUly of fhe Workmen's Coinpensation Act which, in our opmion, ex facie has uo appUcation, the saine, iu our opinioa, cannot be pennitted to be raised for ftie first tune.* 7. In ffae instaat case, it is not proved as to how inuch aiaount fhe claimaut spent ra treatiaent and, fherefore, considering fhe facts aud circumstances of fhe case, particularly when the doctor has not been examined to prove the mjuiy aud certificates, an amount of Rs. 37,000/- has been awarded as com.peasatiou to the clainiaat. 8. In view offhe above quoted dicta ofthe Apex Court in the cases ofA.P. SRTC v. P. Thirupal Reddy (Supra) aad Rajesh Kiunar altas Raju v. Yadhvir -Siii^h aad aaother (Supra), fhe ceitt&cate produced before fhe Tribiuial m the absence of examiaation. of the Doctor fasuiag the certificate is neither adinissible in evideace aor can bc taken iato consideration as substaative evidence for assessinent ofthe coinpensation ia the case. 9. For fhe foregoing reasons, I do not find any scope &r enhancenient ofthe comLpensation awarded by fhe Tribunal. 10. The appeal filed by fhe appellaiit/claixuaat for enhancement of fhe coiapensatiou, fhere&re, is liable to be disniissed and fc hejreby disinissed. 11. No order as to costs. N.K.Agarwal Judge