c<. ^'.^j IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.AJC)1Io. ^^\ /2009 SSSi APPELLANT /(claim.ant) y\^ ^..s— / Tejram Rathore aged about 45 years S/o Shri Salikram . Rafhore R/o Vfllage New l^n-' Chandaniya Para Janjgir, RESPONDENTS tW.--"'" ^^—^.^1'9^ Police Station, Janjgir District Vt<*^' ....,.•••-"£> Janjgir-Champa (C.G.) • c»^"'" VERSUS ^l. Sanjog Barefh, aged about 21 years S/o Firturam Bareth R/o Dharashiv, TahsU Janjgir District Janjgir Chainpa (C.G.) (Driver of vehicle) 2. Amar Singh Rafhore S/o Shri Rewaraai Rafhore R/o Quarter No. 10 Pump House Colony Korba, Tahsil 85 District Korba (C.G.) 3. ^ Branch Manager, ICICI Loumbard General Insurance Company Ltd., Bilaspur District BUaspur (C.G.) MEMO OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT 1988 '.'fe f.^s'^^^tQi' -&ZS. ~\~\ -^ ^ • fc-^2^>/ ^' ^i:r%n!@i^nT e~^WK^Iw°eis-~e.s s'i. 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Jcaiijyii ^hi=sm^,-=< i'nn\ icSs 1 lUig 1.^^.3 3 VI Respondents 1 2 Sanjog Bareth, aged about 21 years S/b Firturam Bareth R/o Dharashiv, Tahsii Janjgir District Janjgir Champa (CG) (Driverofvehicie) Amar Singh Rathore S/o Shri Rewaram Rathore R/o Quarter No.IO Pump House Colony Korba, Tahsii & District /rtn\ ^^3J Manager, ICICI Loumbare Generai Insurance Company Ltd., Bilaspur District Bilaspur (CG] of sr Section 17: t?euicics _^4 -^S^ i^i^ S®ii Present: Shri RN Jha, counsel for the appellant. Sth'l*suns, The foilowina order Qf the Court was passed by f: ihri RN Jha, iearned counsei for the appeliant is heard on admisston. 2. Appellant/ciaimant Teiram Rathore . is seekin$ snhancement of the comDensation awarded bv the Second Additionai Motor Accidents Claims Tribuna! (FTC), Janjg'r Champa (for short 'the Tribunal') vide award dated 22.04.2009, passed in ciaim case No. 17/2009. 3. As against the compensation of Rs.4,39,609/- claimed by appeliant' claimant Tejram Rathore, by fiiing a c.1aim petition under Section 166 of th.e Motor Vehicles Act, for the injuries sustained by him in the motor accident on 06.05.2008, the Tribunai awarded a total sum of Rs.47,000/- as compensation along 'with interest © 6% per annum from the date of filing of ths ciaim pstition till the date of actual payment. 4. Shri RN Jha, learned counsel for the appellant vehemently argued that the compensation of Rs.47,000/- awarded by the TribunaS is too low in comparison to the serious nature of the injuries sustained by the appellant / claimant in the motor accldent, 5. For the reasons best knov»'n to the appeilant/ claimant, no doctor was examined berore the Tribunal to estabilsh the nature nf th?a Inlijri^ft ssid tn hsivp h^{sn ^i.ic;t?3inad hv thfi ^nn^il^nt/ ill^lt^ai^tf^' T^lrfS!1k-a t.^-^ lILr<LV\/ 3w^^\<rll ^-^t-ftt^ LitA^1 3 TWT^A ?w/fl ^it:!^/ ^^S^/^rf^-f 11 ^^.i : ^f c!aimant in th.e motor accident and the fact that those injuries resuited in any permanent disability. 6. The question whether the medical certiflcate produced by the claimant before the Tribunai without exsmlning the Doctor •A'ho issued the certificate can be reiied upon as substantive evidence for th.e assessment of the compensation came up for consideration before the Apex Court in the case of A.P. SRTC v. ] S/&*'\^irted in ,/t^»r<a^n in it was observ) ?i?s !inn?sr ' ..E.CT. r (^) ~\^ "6. After hearlns claimant 'who made an High Court, we find th; High Court to rely on Dr. Sudhakar Reddy treatlng the injury as cent. The Hiah earned counsel for the resDondent- attempt to support the order of the there was no justification for the the dlsabliity certificate issued by ind enhance the eompensation by sermanent disabilitv to be 45 oer Court committed aross error I" overlooking the fact that Dr. Sudhakar Reddy's medicai :nlars'ifirtsstj ".WfSti 1,1 E F rejected bv the Tribuna! for non- examination of that doctor. The Tribunal has determined the phvsica! disabilitv at 15 per cent on the basis of the dejsosition _Qf_Dr. KJVi, 4itra and awarded a jusi anci fair Thp Mi^h C'.n^.r^ ?!,r?'?>n in rii%fii;rhinn fh^ 'i E c^'iiBi iCiiSLi^t i, i t SSr t HU; 1 'ii^U^i i. Sir( t C'-'iB.t t i 1 >~i i<31.4.^S 6-C 1 E Eiinj Ll i'G f"'fl ?;tHn?^nr;iHH mps fiomnpn^ssTirin t^f^n'psr^fisj^nTlv i i^i'C? &t SU ^l^^ i'^i.'.S?^J_^i^_ '•' ^^?....-^S?Lt( " i:^'.^?iA^?Ji^L?-f'^ ^ v • twtlu?E iti^'u'ti^^ ii;i E LS 'u , we aiiov/ tnis appeai, restors the award respondent-ciaimant is compensation awan aireadv been withdrawn. ,et aside the smpugned orctsr and )f the Claims Tribunal. The ailowed to withdraw the amount of J by the Tribunai, if it 'nas not 7. The Apex Court in a recent dictum in the case of ivir Singh and another, reported in •iterated tha same view wrth the followinc •r* ^aff ., rsi 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 treated the appeilant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of t'ne said certificate had not been examined. Unless the authpr of the certjficate examined, himseif, it was not admissible in evidence. Whether the disabilitv at 60% was caicuiated on the basis of the provisions of the Ey-:.^—. '^.; Vv'orkmen's Compensation Act or othero/ise is not known. it is also not known as to whether he was competent to issue such a certifica.te. it even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. T-he Tribunal as aiso 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 applicabiiity 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 ti !n vjew 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), the medical certificate produced by the appeliant/ciaimant before the Tribunal in the absence of the examlnation of the doctor who had issued the said certificate, cannot be taken into consideration for enhancement of the compensation in the ca.se. 9. We, therefore, do not find any scope for enhancement of the cQmpensation awarded bv the Tribunal. 10. The appeal filed bv the appellant/ ciaimant enhancement of the compensation, therefore, is liabie to be 'h^ — dismissed and is hereby djsmjssed summariiy. Sd/- ^ ChiefJustsce Sd/- Synil Kumar Sinha Judge subbi. ffa- l^-