Jayant Bagadi v. Satyjeet Manna & Ors

Judgment

2. 3^ Jayant Bagadi s/o Shri Tapan Bagadi, aged about 22 years, r/o village Berugram, post Chandipur, district Vardhman, West Bengal, at at Nar-narayan present Hotel, Bacheli, district Dantewada C.G. residing VERSUS Satyjeet Manna s/o Shri Bhupal Manna, aged about 31 years, r/o police station Kirandul, Kirandul, Kunwakonda, tahsil district Dantewada C.G.

Tuhin Ganguli, s/o Shri S.K. Ganguli, aged about 33 years, r/o old market, Bacheli, police station Bac^eli, tahsil Dantewada, district Dantewada C.G. Bajaj Allianz General Company Bhawan, Pandri, Raipur, district Raipur C.G. Insurance Shivmohan Road, Limited, Vidhan Sabha Apoeal under Section 173 of the Motor Vehicles Act Present: Shri Vivek Sharma and Shri K.K. Dewangan, counsel for the appellant. ORDER (23rd August, 2012) ^ ^.y' /^ .\ M.A.C.No.798of2012 The following order of the Court was passed by RajeevGupta, C.J. Shri Vivek Sharma and Shri K.K. Dewangan, learned counsel the appellant are heard on I.A.No.01/2012, an application for condonation of the delay in filing the appeal. 2) On due consideration of the submissions of learned counsel for the appellant and the grounds taken in the application, we are satisfied that the appellant has succeeded in showing sufRcient cause for the delay in filing the appeal. 3) I.A.No.01/2012, therefore, is alfowed and the delay in filing the appeal is hereby condoned. 4), Shri Vivek Sharma and Shri K.K. Dewangan, learned counsel-fprthe appellant are heard on admission. 5) Appellant/ claimant Jayant Bagadi is seeking enhancement of the compensation awarded by the Motor Accidents Claims Tribunal, Dantewada (for short 'the Tribunal') vide award dated

14.12.2011, passedin Claim Case No.84/2010. 6) As against the compensation of Rs.41,50,000/- claimed by the appellant/ 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 26.09.2009, the Tribunal awarded a total sum of Rs.87,437/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 7) Shri Vivek .Sharma and Shri K.K. Dewangan, learned counsel for the appellant vehemently argued that the Tribunal has M.A.C.No.798of2012 erred in awarding low compensation of Rs.87,437/- only though the appellanV daimant sustained multiple serious injuries including fracture in the motor accident resulting in permanent disability. 8) Before the Tribunal, the claimant examined as many as two witnesses including himself (AW1 Jayant Bagadi and AW2 Sudeepth Mandal) in support of his claim. For the reasons best known to the claimant, no doctor was examined before the Tribunal for establishing the number and nature of the injuries said to have been sustained by the claimgnt in the motor accident and thg fact that those injuries resulted in any permanent disability. 9) The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence the assessment of the compensation consideration before the Apex Court in the case "Q^A.P. SRTC v. P. Thirupal Reddy, reported in (2005) 12 SCC 189, wherein it was observed in 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 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 aross error overlookina the fact that Dr. Sudhakar Reddv's medical certificate^ was reiected bv the Tribunal for non- examination of that doctor. The Tribunal has determined the phvsical disabilitv at 15 per cent on the basis of the MAC.No. 798 of 2012 ^ deposition of Dr. K.M. Mitra and awarded a just and fajr compensation. The Hiah Court erred in disturbjn.q^he same and enhancinq 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, it has not already been withdrawn." 10) The Apex Court in a recent dictum in the 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 It is not known as to whether the obtained after two years. Civil Surgeon of the hospital treated the appellant. On whafr 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 noradmissible 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. 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 In absence of any contention record by the parties. having be6h 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 fpr the first time." /^ M.A.C.No.798of2012 11) The medical certificate and the disability certificate produced by the 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. SRTC v. P. Thirupal Reddy (Supra) and Rajesh Kumar alias Raju v. Yudhvir Singh and another (Supra), cannot be taken into consideration for enhancement of the compensation in the case. 12) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal. 13) The appeal filed by the appellant/ claimant for enhancement o|the compensation, therefore, is liable to be dismissed and is hereby dismissed summarily. K jl Chief Justice Sd/- Sd/- R.N. Chandrakar Judge •/t