BEFORE THE HON'BLE HIGHCOURT OFCHHAmSGARH AT BILASPUR MISC. APPEAL fCl No. 5 .^,ii ^- /aoie—" APPELLANTS /: CLAIMANTS f: ,A\ ^ff^ y' ...--^^ •*' .^* ^'^^ ^^.-^v ^^"1"0^ i RESPONDENTS: NON-APPLICANTS 1. Kundan Sahu, ^ S/o Shri Mahadev Sahu Aged about 38 Years, 2./Ku. Bhumika Sahu D/o Shri Kundan Sahu • -Aged about 16 Years Appellant No.2 is minor represented by her natural guardian and father Kundan Sahu Appellant No. 1 Both R/o Mangal Bazar, Kundrapara Gudiyari Raipur, Tehsil & District Raipur, (C.G.) VERSUS l.^-Yogeshwar @ Yadram Sahu, S/o Shri Mahadev Sahu Aged about 35 Years, R/o Mangal Bazar, Kundrapara Gudiyari, Raipur, (C.G.) (Driver of Vehicle Maruti 800 bearing Regd. No. C.G. 04 B 5864) 2^Pradeep Pillai S/o Shri P.K. Pillai, Aged bout 35 years R/o 1-752, Janta Colony, Gydiyari, Raipur, C.G. (Owner of Vehicle Maruti 800 bearing Regd. No. C.G. 04B 5864) ^The -Oriental Insurance Company Ltd. Through Divisional Manager, The Oriental Insurance Company Ltd. C.B.O.-2, Madina Building , 1st floor, Jail Road Kutchery Chowk Raipur, C.G. (Insurer of Vehicle Maruti 800 bearing Regd. No. C.G. 04 B 5864) k/ChiefDivisional Manager Railway, / East Coast Railway Sambaipur, Orissa. - ^^' APPEAL UNDER SECTION 173 OFMOTOR VEHICLE ACT. 1988 FQR ENHANCEMENT OF COMPENSATION AMOUNT HIGH GOURT OF CHHATTISGARH AT BII-ASPUR APPELLANTS M.A.fQNo. 03 of2011 Kundan Sahu <fe Another VERSUS .,-> RESPONDENTS : Yogeshwar @ Yadram Sahu & Others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT (SB: Hon'ble Mr. N.K. Aearwal, J.) Present : Shri Satyendra Kumar Sahu, Advocate for the appellants. <. OR^LORDER (Passedon 06.01.2011) 1. The instant appeal has been preferred by the appellants, seeking enhancement of compensation against the award dated 13.09.2010, passed by tfae Xth Additional Motor Accident Claims Tribunal Raipur (for short 'the Tribunal') in claim case No. 192/2009. 2. Brief facts ofthe case according to the appellants are tiiat, on 27.04.2008, when the appellant was traveling in Maruti Car bearing registration No. CG-04-B-5864, the said Car was dashed by the driver ofTrain as a result ofwhieh Ifae appellant susteined y multiple injuries. 3. The appellants preferred applic^tion before the Tribunal under Section 163-A of the Motor Vehicles Act, claiming compensation to the tune of Rs. 20,207/- for the injuries sustained by her on account ofthe said accident. 4. The Tribunal, on a close scrutiny of the evidence led by the parties, the material available on the reeord, and submissions of the parties, awaided total amou:nfc<^Rs<I,00<I)/-^^^^ 'in favcmr^o^^?afigejtSagi||||j||g||||:g||:i@i tSSSisSSSSSSSUsSXM 's^^sSS ^SS^'SSsg^Si^s^s^s^sss ES;^®^^SS^^i^is^^^'^ ssgB.a.asB ^'JSS^S-SsHS^v ^l^^^' .^/ ?fe 8. ssffjis H ISM B81 B'j"; Leamed counsel for the appellants would submit tiiat although the Doctor has not been examined in this matter, but looking to the fact that the appellants sustained multiple injuries, and amount awarded is shoekingly on lower side, this appeal may be allowed and the amount ofcompensation be enhanced. I have heard the leamed counsel appearing for the appellant and perused the award impugned. The Supreme Court in case otAP. SRTC v. P. Thirupal Reddy, reported in (2005) 12 SCC-189, observed in para 6 as under: "6.After hearins leamed counsel for the resoondent-claimairt who made an attempt to support the order ofthe 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 pennanent 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 1hat doctw. The Tribunal has determined the physical disability at 15 per cent on the basis ofthe deposition ofDr. K.M. Mitra and awarded ajust and fair competisation. The High Court erred in disturbing the saine atid enhancitig the conipensation. Consequetitly, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is allowed to wifhdraw the amount ofcompensation awai-ded by the Tribunal, ifithas aot akeady been withdrawn." The Supreme Court in a recent dictum in case ofRajesh Kiunar aBas Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11: ; "ll.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 tvyo years after the accident took place is not known. The author ofthe said certificate had not been examined. Uiiless the author of the eertificate examined himsetf, it was not admissible in evidence. Whether the disability at 60% was calculatedoathe basis ofthe 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 sueh a certificate. It even does not appear that the <, Sahu contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proeeeded on tlie materials brought on record by the parties. In absence of any contention having been raised iii regard to the applicabilify of the Workmen's Compensation Act which, in our opinion, ex facie has no application, fhe same, in our opinion, cannot be pemuttedto be raised forthe fu-st time." 9. ADivisionBenchofthisHigh Courtin case of-RrarfeQ»^umffr <S'aAu vs. Sarupa Sahu & another nde order dated 31 March, 2009, placing its reliance upon the dicta ofSupreme Court in the cases referred above held in para 8 as under: "8. In view ofthe above quoted dicta ofthe Apex Court in the eases of A.P. SRTC v. P. Thirupal Reddy (supra) cmd Rajesh Kwnar alias Raju v, Ywdkvir Smgh and another (supra), the certtficate produced before the Tribunal in tlie absence ofexamination ofthe Doctor issuingthe certificate is neither admissible in evidence nor cau be taken into consideration as substairtive evidence for assessment of the conq)ensation inthe case." 10. Admittedly, the claimants in her own wisdom did not examine Doctor to prove the injury sustained in 1he accident and to prove the resultant loss. In view of tiie dicta of the above referred cases, the injury reports, certificates produced, in the absence of examination ofthe 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. Neither multiple injury was found nor pennanent disabilily certificate was fited. 11. For the reasons mentioned hereinabove, I do not find any scope for enhancement ofthe compensation awarded by the Tribunal. 12. The appeal filed by the appellants for enhancement of the compensation is therefore liable to be and is hereby dismissed. No order as to costs. ___-——— —~ \ Sd/- i NJGAgarwal Judge ; -<j;