HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE SHRI RAJEEV GUPTA, C.J. HON’BLE SHRI SUNIL KUMAR SINHA, J. Misc. Appeal No. 840 of 2004 Appellant . Gangadas Manikpuri, s/o Manohardas, Claimant Manikpuri, aged about 42 years, Asstt Teacher Primary School, Purda Tahsil Dhamda Distt Durg VERSUS Narendra Kumar, S/o Chottelal Present Address Kiran Nagar, Durg, Permanent address Civil Iines, Raipur ‘ 2 Dinesh Chandra Agnihotri, S/a Sharda Prasad Agnihotri, R/o A-7, Ravi Nagar, Raipur 3 Divisional Manager, The New India Insurance Co. Ltd., Parcha Bhavan, Durg Respondents I MISCELLANEOUS APPEAL UNDER SECTION 173 OF MOTOR VEHICLES ACT Present : Shri PR Patankar, counsel for the appellant. None for respondents No.1 and 2. Shri AK Athaley, counsel for respondent No.3. ORDER (26* April, 2011) i The following order of the Court was passed by Rajeev Gupta, C.J. Appenant/ claimant, Gangadas Manikpuri, is seeking enhancement of the compensation awarded by the Second Additional Motor Accidents Ciaims Tribunal, Durg (for short,‘“the Tribunal”) vide award dated 21.07.2000, passed in Ciaim Case No.43/1999. 2) As against the compensation of Rs.10,50,000/—, claimed by the appellant I claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 28.04.1999, the Tribunal awarded a total sum of Rs.2,37,131i— as compensation along with interest @ 12% per annum from the date of tiling of the claim petition till the date of actual payment. t3) . Shri P.R. Patankar, teamed counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.2,37,131/— only, though the appellant/claimant suffered permanent disability to the extent of 80% on account of the amputation of his right leg above knee in‘the motor accident. 4) Shri A.K. Athaley, learned counsel for respondent No.3 the New lndia Insurance Company Limited, the insurer of the otfending vehicle Bus on the other hand supported the award and contended that the compensation of Rs.2,37,131/~ awarded by the Tribunal is" just and proper compensation in the facts and circumstances of the present case. 5) For the reasons best known to the appellant/claimant, no doctor was examined before the Tribunal to establish the 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. The question whether the medical certificate produced bylthe 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 \fs P. Thirupal Reddy reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under : "6. After hearing learned counsei 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 disability certificate issued by Dr Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 percent. The High Court committed gross error in overlooking the fact that Dr Sudhakar Reddy’s medical certificate 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 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." 7) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju Vs Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same View with the foliowing 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 Civii Surgeon of the hospital treated the appeiiant. 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. lt 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 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 time.” 8) The medical certificate and the disability certificate produced by the appellant/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.S.R.T.C. Vs o i.... P. Thirupal Reddy (supra) Rajesh Kumar alias Raju Vs Yudhvir Singh and another (supra), cannot be taken into consideration for enhancement of the compensation in the case. 9) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal. , 10) The appeal fried by the appeliantl ciaimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. 7M 11) No order as to costs. I K / Sd/- i r‘ V1 S”"”Kumarsi'nha . sw. subbu Chief Justice ‘ ‘ i " i / Judge H r ‘ I .