IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.No. 5’0 2005 Division Bench / Prafull Vishwas Aggellant S/o Late Yadu Vishwas, Aged about 50 Years R/o Kanialpur, RS. Ramanujganj, Tehsil — Pal, Dist : Sur‘guja—(C.G.) {€/&W€M) Q. Qg 3. The Oriental Insurance Company L.T.D. Dharamshala Road, Daltenganj, Dist :‘Palamu — (Jharkhand). (gm/wv, ) MISC. APPEAL UNDER SECTION 1’73 OF MOTOR VEHICLES ACT 1 88 FOR ENHANCEMENT OF THE AMOUNT OF AWARD. ,,V\ Versus Re 0nd 1. Shri Faguram (aawmy) / S/o Amrik Mochi, Occupation — Owner of Singra Bus, R/o Singra Kala Daltenganj, ‘ oQ’f‘gfo Dist : Palamu—(Jharkhand) fx’, \{y 2. Ganesh Singh (£7x3/ér) ( >/ S/o Late Shri Ramji Singh, R/ o Ghurnadih, ¢ sw§ $6? P.S.— Lesliganj, Dist : Palamu — (Jharkhand) ‘ Q HIGH GQURT QF $§=5HATT§SG§¥QH AT Q”&$PH MA, NO. 504 9f Qf3Q5 Algpewant Pmfun Vishwas Ciaimant Versu$ Ras’mndenig APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE$ ACT § {35: ann‘bia Mr, MK, Agarwak Jc§ Shri Faguram & Qfherg Present .:" Shri Rahul Mishra. Advacate for the appeliani. l Shri Sud'nir Agrawat Advocate far rewamdem’ No. 3. QRAL 0RD??? . (Pasgeq an 23rd day sf AiagassE, Ea’m‘} 1.. The instant appeat ha$ baen preferred by the appallam, seeking enhancement of Qompemation against the awam dated 17.12.2004; pa$$ed by the Additiana! Metnr Accide‘ni’. Ciaims Tribuna! (FTC) Ramanujganji Di$it. $urguja (for sham ‘the Tribunai’) in claim case No. 6/93, 2. Brief facts of the case according t0 the appeilant 3m that, on 13.05.2001, While the appei'ant was traveiing in Bus bearing registration No. BPY—704Q; the eaid Bus turned turtle due ”m which he sustained multiple injuries. 3. The appellant preferred application before the Tn‘hunal under Section 166 of the Mater Vehicles Act, claiming gemneneatton to the tune of Re. 2i40,000i- tor the injuries eteteined by him on account of the said accident. Lx The Tribunai. on a cicee scrutiny 0f the evidence teri by the parties, the material avaiiahle on the record. end submissione of the’earties, awareecl tctei amount of Rs. 6.091% ee compensation in faVour of the apnellent. l 5. Learned counsel tor the appeltent wouid eubmit that although the Doctor has not been examined in this matter, but looking to the fact that the eppeltent sueteined muttiple injuriee and @ amount awamied is 5heckinghj on lower $ide, mis appaa! may be allowed and 'the ammunt of compemation ba enhanced. 1 have heard the iearned counsei appearing for the appgaHant and perused the award impugned. he Supreme Court in case ef AF” 3%“?!3 v.7 R Thimpel Reda’y, reported in (2%5; 12: $66—1ggg obeerved in para 6 as undeh 7’. "6.After hearing learned ceunsel for the respondeni-ciaimant who made an adempt to supperi ihe order 0f the High Cami. u ~We find that there was no jueiification for the High Court to rely on the disabiiity certificate issued by Dr. Sudhakar Reddy and enhance the compensaiion by treating the injury as permanent disability to be 45 leer cent. The High Court sommitted .gross error in overlooking the tact 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 “i5 per cent on the basis of the deposition of Dr. KM. Mitre and awarded a just and fair compensation. The High Court erred in disturoihg the same and enhancing the compensation. Consequehtly. we ailow this appeal, set aside the impugned order and restore the award of the Claims Tribunai. The respondent— ciaimant 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 ease of Retest: Kumar alias Raiu v, Yudhvir Sihgh and anotherg reported in (2003) ? SCG 3&5, reiterated the same View with the foliowing observations in para 11.: “1 1 .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 accident toolt 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 6 % was calcuiated on the basis of the provisions of the Workmen’s Compensation Act or otherwise is not known. lt isialso 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 S f i ‘ T i ‘ our opinion, ex facie has no application, ithe Same, m our opinion, cannot be permitted ta bé raised for the fins: nme." 9. 1A Division Bench of this High Court in case of Eyradgw Kama? Sahu V$. sa mpa $ahu & amine? vids order datecf 315* March; 2009, piacing its reliance upan the dicta of Si‘iprgme Court in the case$ referred above held in para 8 ars under: “8. In View of the above quoted dicta of the Apex Court in the cases of AP. SRTC v. P. Thimpa! Raddy (supra) and Rajesh Kumar aiias ?aju v. Yudhvir $ingh and another (supra), the certificate produced betote the Tribune! in the abeence of examination of the Doctor issuing the certificate is neither admissible “In evidence nor can be taken into V Eonsideration as substantive evidence for assessment of the compensation in the case.” 10‘ Admittedly, the claimants in hie 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 oi the above referred oaees, the injury reports, certificates produced, in the absence of examination of the Doctor issuing the injury reporte, certificates are neither admissible in evidence nor can be taken into consideration as substantiVe evidence for enhancement of compensation in the case. Neither muitipie injury was found nor permanent disability certificate was filed. 11. For the reasons mentioned hereinahove, i do not find any scope for enhancement of the compensation awarded by th Tribunal. 12. ’The appeal filed by the appellant for enhancement of the compensation is therefore liable to be and is hereby dismissed. No order as to costs. 9 Sci/- N.K. Agrawai Judge Sahu e