DIVISION BENCH v. Narayan-Aditya

Shri PK Patel and Shri Govind Dewangan, counsel for the appellant. ORDER >fh (12'"January,2012) The following order of the Court was passed Rajeev Gupta, C.J. Shri PK Patel and Shri Govind Dewangan, learned counsel for the appellant are heard on admission. •••t^ 'B*«u<W4Mniw«n«iniK!3'.;': .A.C. No.60of2012 I1-'^ 2) Appellant/ Claimant Pitamber Prasad Sahu is seeking enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Korba (for short 'the Tribunal') vide award dated 14.12.2011, passed in Claim Case No.273/2011. 3) As against the compensation of Rs.8,00,000/- claimed by the appellant/ claimant by filing aclaim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 27.03.2006, the Tribunal awarded a total sum of Rs.11,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actyal payment.

4) Shri PK Patel and Shri Govind Dewangan, learned counsel for the appellant submitted that the Tribunal has erred in awarding low compensation of Rs.11,000/- only though the appellant/ claimant sustained multiple serious injuries induding fractures in the motor accident resulting in permanent disability. 5) From para 12 of the impugned award, we gather that the claimant for the reasons best known to him neither produced any disability certificate before the Tribunal nor examined any doctor for establishing the number and nature of the injuries said to have been sustained by the claimant in the motor accident and the fact that those injuries resulted in any permanent disability. 6) 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 compensation A.C. No.60of2012 \^ consideration before the Apex Court in the case of 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 HiQh___Court committed gross error > overlookina the fact that Dr,_Sudhakar Reddv's medical certificate_was reiected the Tribunal for non- examination of that doctor. The Tribunal has determined the physical disabilitv at 1 5 per cent on the basis of the deposition of Dr, K.M. Mitra-and awarded a iust and fair compensatjon. The Hiah Court erred in disturbina the same and enhancina 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. " 7) ,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 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 .aai.i. '"- ^^^ff"' Y ^:K5giSa>, i *i?-y/ /•f M.A.C. No.60of2012 of_the_certificate examined himself, it was not admissibje 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 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. " 8) The medical certificates 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.

9) For the foregoing reasons, we do not find any scope for enhancement ofthe compensation awarded by the Tribunal. 10) The appeal filed by the appellanV claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed summarily. Sd/- Chief Justice Sd/- R.N. Chandrakar Judge ••^•^^^w,^^^