IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH 1/ ,r,z f Durga Prasad Tamrakar S/o Krishna Kumar Tamrakar Aged about 29 years Occupation Private Business R/o Tamerpara Dhamdha M.A. NO. 1?.712002. Appellant/Apphcan/ C lqAmQKk’ Tehsn —Dhamdha Distt Durg (CG) -——- (n VERSUS w/Asharam Nishad (Driver) Vill/nankatthi, Rs. Nandini istt. ~ Durg (CG) Amar Mines(Owner) MalViyanagar Durg (CG) 3. 'The Oriental Insurance Company "‘ Branch Malvryanagar Durg (CG) Respondents/blon-Applicants MEMORANDUM OF APPEAL U/sl73(1) OF THE MOTOR VEHICLE ACT 1988(CLAIM APPEAL VALUED AT RS 2 97 348) a» ‘J ‘ m’ / AppeHant Applicant] Claimant HIGH COURT OF CHHATTISGARH AT BILASPUR MA. No. 113 OF 2002 Durga Prasad Tamrakar Respondents/ Non-applicants APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT Versus Asharam Nishad & Others (SB: Hon'ble Mr. N.K. Aqarwal, J.) Present : Shri Pawan Shrivastava, Advocate for appellant, appears on behalf of Shri Pankaj Shrivastava, Advocate. None for respondents. ORAL ORDER (Passed on 15‘ day of February, 2010) Heard on admission. The instant appeal has been preferred by the appellant, seeking enhancement of compensation against the award dated 09.10.2001, passed by the 2““ Additional Motor Accident Ciaims Tribunal, Durg (for short ‘Trlbunal’) in claim case No. 87/99. The brief facts of the case according to the appellant are that, on 07.05.1999, the appellant met with an accident with Dumper bearing registration No. MP-24-C-2217, 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. 2,97,346/— for the injuries sustained by him on account of the said accident. The Tribunal, on a close scrutiny of the evidence ied by the parties, the materiai available on the record, and submissions of the parties, awarded total amount of Rs. 43,000/— as compensation in favour of the appellant. Learned counsel for the appellant would submit that although the Poctor has not been examined in this matter, but looking to the fact c that e appellant sustained grievous injury, and amount awarded is shocking on lower side, this appeal may be allowed and the amount of compensation be enhanced. 6. l have heard the learned counsel appearing for the appellant and perused the record. The Supreme Court in case of A.F. SRTC V. P. Thirupal Raddy, reported in (2005) 12 SCC-189, observed in para 6 as under: “6AAfter hearing learned counsel for the respondent-claimant who made an attempt to support the order of the High Court. We tind 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 per cent. 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 Tribunai 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 8. 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 parali: “1 1 .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 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 certincate 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. TheTribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. ln absence of any contention having been raised in regard to the applicability 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." Wltl th A Division Bench of this High Court in case of Pradeep Kumar Sahu vs. Sarupa Sahu & another vide order dated 313‘ March, 2009, placing its reiiance upon the dicta of Supreme Court in the cases referred above held in para 8 as under: "8. in View of the above quoted dicta of the Apex Court in the cases of A.P. sRTC v. P. Thirupal Raddy (supra) and Rajesh Kumar alias Raju v. Yudhvir Singh and another (supra), the certificate produced before the Tribunal in the absence of examination of the Doctor issuing the certificate is neither admissible in evidence nor can be taken into consideration as substantive evidence 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. ln view of the dicta of the above referred cases, the injury reports, certmcates 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. 11. For the reasons mentioned hereinabove, i do not find any scope for enhancement of the compensation awarded by the Tribunal. 12. The appeal tiled by the appellant for enhancement of the compensation is therefore liable to be and is hereby dismissed. No order as to costs. Sahu sa/n 5 N. K. Agaiwal Judge ##