HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J. Misc. Appeal (C) No. 612 of 2011 ^. Appellant Applicant Respondents Non-applicants Prem Raj Bansal, aged about 58 years, s/o Khajan Singh occupation Transporter r/o village near Ram Kund Auto Parse G.E. Road, Raipur, tahsil & distt. Raipur C.G. VERSUS Ketu Ram Sahu, s/o Magatu Ram Sahu, r/o vtllage Mohadi, post Naradaha, distt. Durg C.G. Non-apDlicant No.1 The New India Insurance Company Ltd through Divisional Manager, Divisional Office No.1, Kachahari Chowk, Jail Road, Raipur C.G. Policy No.451201/31/09/02/00000135 due date 09.04.2009 to 08.04.2010 Non-applicant No.2 Memo of appeal under Section 173 of Motor Vehicle Act Present: Shri Pawan Kesharwani, counsel for the appellant. ORDER ^th (29r"September,2011) The following order of the Court was passed by Rajeev Gupta, C.J. -^ '\' p' /^b: ^.—y MAC.No. 612 of 2011 {. L. c. Shri Pawan Kesharwani, learned counsel for the appellant is heard on I.A.No.01/2011, an application for condonation ofthe delay in filing the appeal. 2) On due consideration of the submissions of learned counsel for the appellant and the grounds taken in the application, we are satisfied that the appellant has succeeded in showing sufficient cause for the delay in filing the appeal. 3) I.A.No.01/2011, therefore, is allowed and the delay in filing the appeal is hereby condoned. 4) Shri Pawan Kesharwani, learned counsel for the appellant is heard on admission. 5) AppellanV claimant Prem Raj Bansal is seeking enhancement of the compensation awarded by the 2nd Additional Motor Accidents Claims Tribunal, Raipur (for short 'the Tribunal') vide award dated 01.12.2010, passed in Claim Case No.01/2010. 6) As against the compensation of Rs. 13,50,0007- claimed by the appellant/ claimant by filing a claim petition under Sectioh 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 01.08.2009, the Tribunal awarded a total sum of Rs.20,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 7) The Tribunal on a close scrutiny of the entire evidence led before it held that claimant Prem Raj Bansal sustained injuries in the motor accident on 01.08.2009; the claimant himself and the motorcyclist of the motorcycle bearing registration "•^-. s V^-'"-| 1 •^// .-^:-" MAC.No. 612 of 2011 c- No.C.G.-07-LG/4558 were equally responsible for the accident to the extent of 50% each; as theabove motorcycle on the date of the accident was insured with the New India Insurance Company Limited and the Insurance Company could not establish any breach of the policy conditions, the Insurance Company was liable to pay 50% ofthe compensation assessed to the claimant. 8) The Tribunal considering the number and nature of the injuries proved to have been sustained by the claimant in the motor accident and the amount proved to have been spent on treatment awarded Rs.33,700/- towards medical expenses; Rs.5,000/- towards grievous injuries sustained by the claimant in the motor accident; Rs.1,000/- for loss of income during the period of treatment; and Rs.300/- for special diet. The Tribunal, thus, assessed the total compensation at Rs.40,000/-. As the motorcyclist was held liable for the accident to the extent of 50%, the insurer of the motorcycle was directed to pay Rs.20,000/- i.e. 50% of Rs.40,000/-, to the claimant as compensation for the injuries sustained by him in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.20,000/- @ 6% per annum from the date of filing ofthe claim petition till the date ofactual payment. 9) Shri Pawan Kesharwani, learned counsel for the appellant vehemently argued that the Tribunal has erred in holding that claimant Prem Raj Bansal also contributed to the accident to the extent of 50%; in assessing the total compensation at r. ..^" -.":'"A ^ <^;:.:^-- "^ ^ MAC.No. 612 of 2011 ^l. C-. Rs.40,000/-; and in awarding low compensation of Rs.20,000/- only to the claimant. 10) Before the Tribunal, the claimant examined himself aione as AW1 in support of his claim petition. For the reasons best known to the claimant, no doctor was examined before the Tribunal for establishing the number and nature of the injuries said to have been sustained by the claimant in the motor accident and the fact that those injuries resulted in any permanent disability. 11) 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 Reddy, reported in (2005) 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 disabiHty certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 per cent. The hliah Court committed aross error in overlookina 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 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a iust and fair comRensation. The Hiah Couri:'erred in disturbina the M.A.C.No.612of2011 hi (.:.. same and enhancina the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimantis allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn." 12) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju v. Yudhvir Singh andanother, 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 tr^ated 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 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." /^. -% tb.,-%^. '%.^--.l '^y^ M.A.C.No.612of2011 ?x r'/ 13) The medical certificates produced by the claimant before the Tribunal without examining the doctors who had issued those certificates, 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), cannot be taken into consideration for enhancement of the compensation in the case. 14) So far as the finding recorded by the Tribunal in regard to the contributory negligence of the claimant to the extent of 50% is concerned, we gather from the record that claimant Prem Raj Bansal was prosecuted by the police for commission of the offences punishable under Sections 279 and 337 of the Indian Penal Code. The claimant in the said criminal case admitted his guilt and as such was convicted by the Judicial Magistrate First Class, Raipur vide judgment dated 30.09.2009, passed in Criminal Case No.940/2009. 15) On due consideration of the nature and manner of the accident involving the claimant's scooter and the other vehicle motorcycle; the fact that the motorcyclist and the claimant both sustained injuries in the motor accident; the fact that claimant Prem Raj Bansal in the criminal case admitted his guilt and as such was convicted by the trial Court, we are satisfied that the Tribunal has rightly held that the claimant also contributed to the accident to the extent of 50%. 16) For the foregoing reasons, we do not find any scope for enhancement of the compensation awarded by the Tribunal. 1 ^Al I k <^.., J/ // ^ '^^^" ^y -^' M.A.C.No.612of2011 17) The appeal filed by the appellanV claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed summarily. subbu Sd/- ChiefJustice > Sd/- R.N. Chandrakar Judge