IN THE HIGH COURT OF IUDICATURE OF ' , CHHATTISGARHAT BILASPUR n n M.A. No. 5 VJ Z2005 APPELLANT:- V Sanjay Sharma /C l— Q YYI H N T ’ Aged about 11 years S/O- Gore 1a1 Sharma Through:- Smt. Savitri Sharama (Mother) W/O- Shri Gore 1a1 Shanna R/O— Amapara, Police Stau'onz- Azad Chowk Raipur (CG) VERSUS 1) Rajesh Gupta ( Driver) Aged about 25 years " S/ O— Vishnu Gupta R/ O— Trimurti Chowk Suudamagar, Raipur (C.G.) (Permanent Address) Sarangpurkla Police Stationz- Bodla Distt:- Kawardha (C.G.) 2) Vishanu Gupta (Owner) ') S/ o— Nank Chand .r R/ O— Trimurti Chowk Sundarnagar, Raipur (C.G.) (Permanent Address Sarangpurkla Police Stationz— Bodla Distt:— Kawardha (C.G.) k§) Bajaj Alliance General Insurance Company Ltd. Pandr1tra1 Near Mandigate, Raipur (C.G.) ME ’O OF APPEAL UNDER SECTIO 173 OF MOTER VEHICLE ACT 1988. K V w v , IGH COURT OF CHHATTISGARH AT BILASPUR MA. No. 645 of 2005 Sanjay Shanna APPELLANT Claimam Versus Rajesh Gupta (Driver) & Gthers APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT 7 133: Hon'ble Mr,N.K.Aggtwal,J.1 W ‘ Present A :‘ éhd Shri Vivek Rakesh Rathore, Pandey, Advocate Advocate for for the respondent appeuant. No. 3. ‘ ‘ ORAL ORDER (Passednn a“ day of September. 2010) M(C)P No. 241/06, application for preferring cross objection en behalf of the respondent No. 3 mder Order 41 Rule XXH of CPC is dismissed as withdrawn. 1With the consent of the parties, the matter is heard nnaliy. 1. The instant appeai has been preferred by the appellant, seeking enhancement of compensation against the award ‘ dated 25.02.2005, passed by the Vth Additional Motor Accident i Claims Tribunal, Ra'ipur (for short 'the Tribumi’) in claim case ‘ No. 31/04. - 1 Brief facts of the case according to the appellant are that, on 05.1 0.2003, while the appellant was watching Dusrga Vishargen at Mahadev Ghat, Raipur, the driver of Trador heen‘ng registration No. ce-o4—B-2376 & Trolley No. 06040-2377 H dashed the appellant due to- which the appellant sustained ‘ multipleinjuries. 3. , The appellant preferred an application before the Tribunal ' 7 under Section 166lhof the Motor Vehicles Act, claiming compensation to the tune of Rs. 3,25,000/— 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 rword, andsubmbsicns of the patties, award total ‘amoum f Rs. %,099/,- a compensation in favour of the appellart. Leamed counsel tor the appellant would submit that although the Doctor has not been examined in this matter, but lool€ing to the fact that the appellant sustained multlpte lnjuhes, an amount awarded is shocklngly on lower side, this appeal may be allowed and the amount of compensation be enhanced. l have heard the learned counsel appearing for the appellant and perused the award impugned. :l'he Supreme Court in case of AP. SRTC v. P. Thimpal Raddy, reported in (2005) 12 sec-189, observed in para 6 as unden H £“6.After hearing learned counsel for the respondent-claimam who made an attempt to support the order of the High Court. We hnd 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 iniury as permanent disability to be 45 per cent. The High Court commited gross error in overlooking the tact that Dr. Sudhakar Reddy's medicai 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. KM. Mitre 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 widtdraw me amount of compensation awarded by the Tribunal, if it has not atready been wimdrawn." The Supreme Court in a recent dictum in case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (2008) 7 SOC 305, reiterated the same View with the following observations in para 11: "1 1 .The certincate in question tn iris case was obtained aher two years. It is not known as to whether the Ctvit Surgeon of the hospiml treatedmthe appellant. On what basis, such a certihcate was issued two years after the accident took place is not known. The author of the said certihcate 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 me provisions of the Workmen’s Compensation Act or odtemise is not known. It is also not known as to whether he was competent to issue such a certihcate. lt even does not ed o s d appear that the contamions taised before us had either been ‘ raised before the Tribunal or’tha High‘Coun. The Tribunal \ r as also me High Conn, therefole, procemd on the materials brought on record by the parties. In absence of“ v any contention having been raised in regard to the applicabiiity of the Workmen's Compensah'on Aot which,'in our opinion, ex fecie hae no appliation, the same, in {our " pinion, cannot be permitted to belraised for the iirst‘ime.” 'r 9. A Division Bench of this High Court in case oi Pradeop Kumar Sahu vs. Serupa Sahu & another vider order dated 31’? March, 2009, placing its reliance upon the dicta of Supreme Court in the oases referred above held in pare 8 ae under: r " “8. ln view of the above quoted dicta of me Apeu Court in the cases of A.P. SRTC v. P. Thlr’upal- Raddy (supra) and Rajeeh Kumer alias Raju v. Yudhvlr Slnghland 'another (supra), the certilicate produced before the Tribunal in the; absence of examination of the Doctor issuing the cem‘fmte is neither admissible in evidence nor can be taken into consideration as substantive widence for assessment of the compensation in the case.” 10. 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, i certificates are neither admissible in evidence nor can be taken : into consideration as substantive evidence for enhancement of 1 compensation in the case. Neither multiple iniury was found ‘ nor permanent disability certificate was tiled. gs 11. For the reasons mentioned hereinabwe, 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 1 compensation is merefore liable to be and is hereby dismissed. j No order as to costs. N W e 7,, Sd/— N.K. Agrawal ’ Judge Sahu o i