DSViSSONBENCH v. Parveet Say

: Shri Awadh Tripathi and Shri Sarfaraj Khan, counsei for theappeiiant. ORDER ^th (Stn November, 2009) The foliowing order of the Court was passed Rajeev Gupta, C.J. Appeliant Suresh Kumar Samant @ Vljay Bihari Samant is seeking enhancement of the compensatlonawarded by the Motor Accident Ciaims TribunaJ, Jashpur Nagar, district Jashpur (for short 'the Tribunal') vlde award dated 30.04.2008 passed in Claim Case No.03/2008. 2) As against the compensation of Rs.13,09,544/-. daimed by the appellant/ciaimant by fiSing a claim petition under Section 166 of the Motor Vehides Act for the injuries sustained by him in the motor accident on 10.12.2005, the Tribunai awarded a total sum of Rs.1,26.000/- as compensation along with interest @ 6% per annum from the date of filing ofthedaim petition till the date of v< actual payment. 3) Shri Awadh Tripathi and Shri Sarfaraj ian, learned counsel for the appellant vehemently argued that the Tribuna! has erred in awarding low compensation of Rs.1,26,000/- on!y, though the appeliant/ciaimant sustained multiple serious injuries jncluding fractures In the motor accident resulting in permanent disability to theextentof35%. 4) Before the Tribunat the appellant / daimant examined as many as four witriesses including himself (AW/1 Suresh Kumar Samant @ Vijay BihariSamant, AW/2 N Khan, AW/3 Manik Chand Sai; and AW/4 Parameshwar Sai), in support of his claim.

For the reasons best known to the appellant / cialmant, no doctor was examined before the Tribunai to establish the nature of the injuries said to have been sustained by the appelianVclaimant in the motor accident and the fact that those injuries resulted in any permanent disabitlty. 5) The question whether the medical certificate produced by the daimant before the Tribunal without examsning the Doctor who Issued the certifscate can be retied upon as sybstantlve evidence for the assessment of the compensation came up for consideration ^\ before the Apex Court in the case of A.P.SRTC Vs P. ThlrupaS Reddy reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under: "6. After hearing leamed counsel respondent - claimant who made an attempt to support the order of tbe High Court, we find that there was no justification for the High Courtto rely on the disability certificate issued by Dr Sudhakar \.. Reddy and enhance the compensation by treating the injury as permanent disabitity to be 45 percent.

The High Court committed gross error in overlookina the fact that Dr Sudhakar Reddv's medica! certificate was reiected bv the Tribunai for non-examination of that doctor. The Trlbuna! has determined the Dhvsical disabjtitv at TSper cent on the basis of the deDosition of Dr KM Mitra and awarded a iust and fair comDensation. The Hiah Court erred in disturbina the same and enhancina the compensation. Consequentiy, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant Is aliowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn. " 6) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju Vs Yudhvir Singh and another, reported jn (2008) 7 SCC 305, reiterated the same view with the foilowing observations in para 11 : "11. The certificate in question in this case was is not known as to obtained after two years. whether the Civil Surgeon of the hospital treated It ^^'•^ ^. the appellant.

Onwhat basis, such a certificate was issued two years after the accident place is not known. certificate had not been examined. Unless the The author of the said author of the certificate examined himself. it was not admissibie in evidence. Whetherthe disability at 60% was caiculated on the basis of provisions of the Workmen's Compensation Act !t is aiso not known as or otherwise is not known. to whether he was competent to issue such a certificate. It even does not appear that contentions ralsed before us had elther been raised before the Tribunal or the High Court. The Tribunal as aEso the High Court, proceeded on the materlals brought on record by Jn absence of any contention having the parties. been raised in regard to the appticability of the therefore, Workmen's Compensation Act which, in our opinion, ex facie has no applicatlon, the same, in our opinlon, cannot be permitted to be raised for the first time.

" 7) In view of the above quoted dicta of the Apex Court in the cases of A.P.SRTC Vs P. Thirupa! Reddy (supra) Rajesh Kumar alias Raju Vs Yudhvlr Slngh and another (supra),the medica! certificate disability certificate produced appeiianVclaimant before the Tribuna! without examining the Doctors who had issued the those certificates, cannot be taken into eonsideration for enhancement of the compensation in the case. 8) We, therefore, do not find any scope for enhancement pf the compensation awarded bytheTribunai. 9) The appeal, filed by the appellant/claimant for enhancement of the compensation, therefore, is tiable to be dismissed and is hereby dismissed summarily. Sd/- Chief Justice Sd/- R.N. Chandrakar Judge </ ^