cl IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.) ,-. 13' I APPELLANT : ClaimQnt M.A.fC) t^^/72009 is-r^h ^l^1^^ 1» ....^l^, .<.SS^-" •^-;>•^ Manbodh Kumor Sahu, S/o PQrQsram Sohu, Aged about 23 Yeors, Occupation Assistant Electrician, R/o Village : Jaraud (Umariya), Post Rewa, Thona MQndirhasaud, Tahsil and District Raiipur (C.G.) VERSUS RESPONDENTS NON-CLAIMANTS ^ ^WNBN^ 1. Rojesh Minchurkor S/o Mohan . Minchurkar, oged obout 24 yeors, R/o MIG 1/161, HUDCO, Aamdi Nogar, Bhiloi, Tohsil ond District Durg (C.G.) 2. Dashrath S/o Ramsharan R/o House No. 1/A, Street- 26, Sector- 11 Bhilai, Tahsil and District Durg' (C.G.) 3. The New India Insurance Company Limited, Through : Divisional Manager, Divisional Office Kutchery Chowk, Krishno Complex, Raipur, Tahsil & District Raipur (CG) Miscetlanceous ADpeat under Section 173 Qflhe MotorVehicleAct, 1994 HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL (C) No. 155 OF 2009 Appellant CSaimant Respondents Non- claimants Manbodh Kumar Sahu Versus Rajesh Minchurkar & Others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. (SB: Hon'ble Mr. N.K. Aaarwal. J.) Present : ShriSCVerma, Advocate for appeliant. Shri Dashrath Gupta, Advocate for respondent No. 3. ORDER ind (Passed on 2"° day of December, 2009) 1. Heard on IA No. 1, application for condonation of delay in fiting the appeai. 2. On due consideration, 1 am satisfied that the counsel for appellant has succeeded in explaining the delay caused in fiiing this appeal. Accordingly iA No. 1 is allowed and delay caused in filing the appeal is hereby condoned. 3. The instant appea! has been preferred by the appellant, seeking enhancement of compensation against the award dated 04.09.2008, passed by the ist Addltional Motor Accident Ciaims Tribuna!, Raipur, (for short 'Tribunal') in ciaim case No. 14/08. 4. The brief facts of the case according to appellant are that, on 21.08.2007, the appellant met with an acddent by Indica Car bearing registration No. CG-07/LC-9600, due to which the appellant sustained injuries. 5. The appellant preferred an application before the Tribunal under Section 166 of the Motor Vehicles Act, claiming compensation to the tune of Rs. 18,00,000/- for the injuries sustained by him on account of the said accident. 6. The Tribuna), on a close scrutiny of the evidence led by the parties, the materia! available on the record, and submissions of the parties, awarded total amount of Rs. 53, 591/- as compensation in favour of the appeliant. ,- ,^- rr 5?\ 7. Learned counsel for the appellant would submit that although the Doctor has not been examined in this matter, but looking to the fact that the appellant sustained grievous injury, and amount awarded is shocking on lower side, this appeal may be allowed and the amount of compensation be enhanced. 8. i have heard the learned counsel appearing for the appellant and perused the record. 9. The Supreme Court in case of A.P. SRTC v. P. Thinipal Redefy, reported in (2005) 12 SCC-1S9, observed jn para 6 as under: "6. After hearing learned counsel 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 disabiiity certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent x disability to be 45 per cent. The High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy's medica! 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. 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." 10. 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 para 11: "11. 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 certificate examined himseif, 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 knov/n. 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 materials brought on record by the parties. In 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." 11. A Division Bench of this High Court in case of Pracfeep Kumsr Sahii vs. Sarupa Sahu & another vide order dated 31st March, 2009, .i;J 1 1 ^.1. •-/ 'v"^} ~:.^.-^^^ l-—^ 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 quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thirupaf Reddy (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." 12. Admittedly, the claimant in his own wisdom did not examine Doctor to prove the injury sustained in the accident and to prove the resuitant 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, certificates are neither admissible in evidence nor can be taken into consideration as substantive evidence for enhancement of compensation in the case. 13. For the reasons mentioned hereinabove, l do not find any scope for enhancement of the compensation awarded by the Tribunai. 14. The appea! filed by the appeltant for enhancement of the compensation js therefore liable to be and is hereby dismissed. No order as to costs. —--- Sd/- N.K. Agrawal Judge t$,j... -^,.-.