é) LN/V IN THE EIGH COURT OF JUmCAmRE AT BILASPUE cmmsmjzg Division Bench fa LI AOF 2005 (MEMORANDUNI OF APPEAL U/S 173 OF THE MOTOR VEHICLES ACT, 1988) MISCELLANEOUS APPEAL NO.— APPELLANT i/CLAMANT «IL Itwariram S/o Bishat, aged about 48 years, R/o- Nayakbandha , Police Station—Abhanpur, Dist — Raipur (C.G.) VERSUS RESPONDENTS Krlshna Bhalekaréi S/o Gajanand NON CLAIMANTS 1L s Bhalekar, aged about 42 years, R/o— Village — Chudya Dist~ Rajnandgaon (C.G.) §~\ 2/g Harbansh Smgh S/o Indar Smgh Chawla, Resxlent of - Baldeobag, §$ Q. Q4 &’6 V’s. Q‘$ D1str1ct — RaJnandgaon (C.G.) j Lg The Oriental In§urance Oompany ‘ Limited, Branch v Kamthi Line, Rajnandgaon, Through Divisional oiiice, Kutchery Chowk, Raipur , t3? , District — Raipur (C.G) NIEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 AQ m ammu Amxwmwm sewewu§ ”:ww‘” ‘ W“ MAM eew H ”(L W\\ HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL No. 1042 OF 2005 ltwariram Versus Shri Vinod Deshmukh, Advocate for respondent No. 1&2. With the consent of the parties, the matter is heard finally. - . Heard on admission. The instant appeal has been preferred by the appellant, seeking enhancement of compensation against the award dated 30.04.2005, passed by the lXth Additional Motor Accident Claims Tribunal (FTC), Raipur, (for short ‘Tribunal’) in claim case No. 87/05. The brief facts of the case according to appellant are that, on 13.02.02, while the appellant was coming from Rainandgaon to Raipur by Truck bearing registration No. MOR 9901, the said Truck turned down due to which the appellant sustained injuries. The appellant preferred an application before the Tribunal under Section 166 of the Motor Vehicles Act, claiming compensation to the tune of Rs. 2,50,000/- for the injuries sustained by him on account of the said accident. The Tribunal, on a close scrutiny of the evidence led by the parties, the material available on the record, and submissions of the parties, awarded total amount of Rs. 25,680,/- as Compensation in favour of the appellant. Learned counsel for the appellant would submit that although the Doctor has not been examined in this matter, but looking to the fact a that the appellant sustained grievous injury, and amount awarded is shocking on lower side, this appeal may be allowed and the amount of compensation be enhanced. i have heard the learned counsel appearing for the appellant and perused the record. The Supreme Court in case of A.P. SRTC v. P. Thimpal Reddy, reported in (2005) 12 sec-189, observed in para 6 as under: “6. After hearing leamed counsel for the respondent- claimant who made an attempt to support the order of the High Court. We find that there was no justihcation for the High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compensation 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 Reddy’s medical certiticate was rejected by the Tribunal for non‘examination of that doctor. The Tribunal has determined the physical 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 appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent- claimant 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 case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (2008) 7 scc 305, reiterated the same view with the following observations in para 11: “1 1. The certificate in question in this case was obtained aner 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 took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it wa’s 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. lt 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, prdceeded oh the Materials brought on record by the parties. ln absence of any contention having beenraised in regard to the applicability oftthe Workman 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 frst time A Division Bench of this High Court in case of Pradeep KumarSahu vs. sampa Sahu & another vide order dated31" March, 2009, placing. its reliance upon the dicta of Supreme Court in the cases referred above held in para 8 as under: “8. In view of the above quoted dicia of the Apex Court in the KhmmraMuhRqmwaYWdhW?smmmnwnhmummyw%mwah m cases of A.P. SRTO v. P. mimpal Raddy (supia) and Rajesh certmcate produced before the Tribunal in the absence of Admittedly. the claimant in his 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 of the above referred cases, the injury reports, certificates produced, in the absence of examination of the . Doctor issuing the injury reports, certificates are neither admissible in evidence nor can be taken into consideration as substantive evidence for enhancement of compensation in the case. For the reasons mentioned hereinabove, l do not find any scope for enhancement of the compensation awarded by the Tribunal. The appeal filed by the appellant for enhancement of the order compensation as to costs. is therefore liable to be and is hereby dismissed: No “’x Sd/— N. K. Agarwai Judge