A ii .--^ _'i ~ -.- .&'»s i~- ". ••"• •;.'• '.:l •-*''; IB_1 COI l*UU! :IIDI(*, •»T. uT / ArpEllANT No.'r'./znn*. T / Ajay Singh, S/o. late Visheshar 26 Wa. V.eBiapw, P.0 Tatjbaidfa, Dis-BaiBBr C.C. /' A^ ,/ly1?^ ^ ^-y ^ ^) fS'' ^- y (2) ?==\ \^f il8Pill§s m. S/n. J,J.P. Wigam, R/a Nei Raiii District C.fl, Smt. Wigani, Wo. J.P. Njqam, Thinugh Dr. Ashish Kumsf Nsgaiii, S/u, J.P, R/n. Harue, ShsnS Nagar, Raipvi (Near flam (C.6.5 C.B.Ltd., ThtOjfnh Blsnaaei, Insuiance Go; LtA G^E. R@sd.- ll^lsiii... Dlstslet tioipiir it'.^i.j .hiri** Ar-t SS 8 "&A-E ^3 .E~^^-T S. 5 •»F^=^3 ^ Misc, ADoeal No. 71 of 2005 Aiav Kumar Sin< Ciaima Resoondents : Raiendra Niaam & Non appiicgnts ApPEAL UNDER SECTION 173 OF THE MOTOR |SB: _Hoin'B'Q Mr. N.K Atsarwa' J.) 'resent ; Shri Aditva Khare, Advocate for aoneita"t None for respondent No. 1 though served. Shri GVK Rao, Advoc':lta for resDondc-nt No. 3, ]^^^.^,.^ ^ a ^iTith ^/-s-T ^.^ ,f^yt!.";3 ^^^lft» "asseo on ^u'" aay o? Aprii, &u'it*j Heard on MfC'iP No. 82/05. aDOiication for cohdonst'on ofdeip". 1. On due consideratlon. l am satisfled that the counsel for apDellant is succeeded in exDla'nina the delav caused in fHJna the aopee! Ac<;ordinalv MCOP No, 82/05 is ailowecf and delav js accordina!v condoned. Heard on adrnission. 2. The instant appea! has been preferred by the appe'lant, seeking snhancsment of comDfensaf'on ' ac'gir'st fte award d"ts1"i 04.02.2003, passed by the ist Additiona! Motor Accident Ciaims Tribunal. Raiour ffc'r short 'the Tribunal'i in ciai'Ti c3?e No. PS/03. 3. The brief facts of the case accordina to ths aooe'lant are ths*. on 21.02.2003, ths aDDeiiant met with an accJdant wlth C3? bearjncf reaistration No. CG-04 -ZB-6376. d'.10 to wh'ch the aDDelisrt sustained multiple injuries, 4, The appellant preferred an application before the Tr'buns! Linder Section 166 of the .Motor Vehicles Act. clsimino comDensation t'") -The.tune of Rs. 10,37,OOO/- for the injuries sijstajned by him on account of the saio' accident. 5. The'Tribuna!, on a close scrut'nv of the evjdence led hv ths Darties. the materia! ava'Sable on the record. and s"bmis=io"s of ^s^3ss^ V,/- Slft the parties, awarded totai compensation in favour ofthe sppeliant 6. Learnad counsel for the aDDe!!!ant wou'd submlt that althoiiQh th'a Doctor has not been examined in thls matter. but 'ookinq to the fact thst ths SiDDeilsint susteined muitiD!1? lnj!irias, and ar"oi.l"t awarded is shockingiy on tower side, thls appeai i'nsy he a!!o""ed and the amount of compensation be enhanced. 7. I have heard the iearned counse! aDDearina for t'ne anneilant and perused the award impugned. 8. The Suoreme Cou'rt In case of A.P. SRTC v, P-- Th'f'iio?'! Re'i'ly, reported in (200S) 12 SCC-18S, observed in para 6 as under: "S.After hearina iearned counsel for the resRondent-claiinant who made an attempt to support the ordsr of ths Kigh Court. We find that there v/as no iustification for the Hish Court to relv on the disabiiity certificate Issusd by Dr. Sudhal;ar Rsddy and enhance the compensation by treating the'injury as permanent disability to be 45 per cent. The High Court committed gross error in overiooking the fact that Dr. Sudhakar Reddy's medical certificate was rejected by the Tribunai for non- examination of that doctor. The Tribuna! has determsried the physical disabiiity at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a iust and fair compensation. The High Court erred in disturbing ths same and enhancinj the compensation. Consequently, v»'e allow this apDeai, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-ciaimant is aliowed to withdraw the amount of comDensation awarded bv the Tribunal, if it has not already been withdrawn." 9. The Supreme Court in a recent dictum in case of Rajesh Kismar in (XtM; CC 305, reiterated the same view wlth the fo!lowing observations in para 11: "11 .The certificate in auestion in this case was obtgijned after tift'Q- years. it is not known as to whether the Civil Surgson of the hospitai treated the appsliant. On what basis, such a certificate was issued t'.vo years after the accident tock piace is not known. The author of the said certificats had not been examined. Unless the author of ths certificate examined himself. it was not admfesibie in evjdence. Vtfhether the disability at 60% was caicuiated on the basis of the provislons of the Workmen's ComDensation Act or otherwise ss 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 rnaterials brought on ?".-"a5% "^ 't. ^ -^. t4""''".,'^/ •^~^:"^s:'^ k^fl record by the parties. In absence of any contention having .been raised in regard to the app,';'cafcj,'ity of the Woricmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinson, cannot be psrmstted to be raised for the first time." iviston Bench of this High Court in case of Pradeep K' vs. Sanspa Sahu & vide ordsr dated 31 March, 39, 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 auoted dlcta of the Aoex Court in ths cases of A.P. SRTC v. P. ThisvpaS Reddy (supra) and Rajesh Kumar altas Raju v. Yudhvsr Sinah and another (supra), the certificate produced bsfore the TribunaS in ths absence of examination of the Doctor issuing the certificate is neither admissibte in evidence nor can be taken into consideration as substantive evidence for assessmsnt of the compensation in the case." 11. Admittedly, the claimant in his own wisdom did. not examine Doctor to prove the injury sustained in the accident and to prove the resuitant !oss. !n view of the dicta of the above refarred cases, the injury reports, certificates produced, in the absence of examination of the Doctor issuing the injury reports, certiflcates are neither admissibte in evidence nor can be taken into consideration as substantive evidence for enhancem<ant of compensation in the case. 12. For the reasons mentioned hereinabove, 1 do not find any scope for enhancement of the compensation av/arded by the Tribuna!. 13. The appeal filed by the appeliant for enhancsment of the compensation is therefore liable to be and is hereby dismissed. No order as to costs. Sd/- "~T—-. - N.K. Agrawa! ,| Judge | Sahu