DIVISION BENCH v. Loknath Sao

Shri JN Nande, counsel forthe appellant. Ms. Sunita Jain, counsel for respondents No.1 and 2. Shri A.K. Athaley, counsel for respondent No.3. \. '^ ,—,. ;»-?gS5s8h ? %^ •-•^sass^ o / MACNo.952 of 2008 ORDER >th (13l"March,2012) The following the Court was passed Rajeev Gupta, C.J. Appellant/claimant Dev Kumar Sahu is seeking enhancement the compensation awarded by the Motor Accidents Claims Tribunal, Mahasamund (for short 'the Tribunal') vide award dated

06.05.2008, passed in Claim Case No.26/2008. 2) As against the compensatiqn of Rs.4,35,000/- claimed by the appellanVclaimant by filing a claim petition under Section 166 of the Motor Vehicles Act, for the injuries sustained by him in the motor accident on 22.04.2007, the Tribunal awarded a total sum of Rs.58,697/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 3) The Tribunal while exonerating insurer offending vehicle Tractor-Trolley held the owner and driver of the Tractor-Trolley liable to pay compensation to the claimant. 4) The above finding recorded by the Tribunal leading to exoneration of the insurer of the offending vehicle Tractor-Trolley was the subject matter of challenge in M.A.C. No. 1039/2008 filed by respondent No.2 Pawan Kumar Agrawal, the owner of offending yehicle Tractor-Trolley. The above appeal i.e. M.A.C. No. 1039/2008 was dismissed by the High Court vide order

19.08.2008 affirming the exoneration of the insurance company 'sl.':-:'s3?Ra:. E ^c-y^' MACNo.952 of 2008 r^ and the liability of the owner and driver of the offending vehicle Tractor-Trolley to pay compensation to the claimant. 5) Shri JN Nande, learned counsel for the appellant vehemently argued that the Tribunal has erred in exonerating the insurer of the offending vehicle Tractor-Trolley from its liability compensation to the claimant; in awarding low compensation of Rs.58,697/- only though the claimant sustained multiple serious injuries including fractures in the motor accident. 6) Ms Sunita Jain, learned counsel for respondents No.1 and 2 also supported the above submission of learned counsel for the appellant that the Tribunal has erred in holding the owner and driver of the Tractor-Trolley liable to pay compensation to the claimant. 7) Shri AK Athaley, learned counsel respondent No.3, the Oriental Insurance Company Limited, the insurer of Tractor-Trolley submitted that in view of the order dated 19.08.2008 passed in MAC No.1039/2008, the finding ofthe Tribunal in regard to the liability to pay compensation to the claimant is not open to challenge in this appeal. 8) As the finding recorded by the Tribunal leading to exoneration of the insurer of the offending vehicle Tractor-Trolley has already been affirmed by the High Court vide order dated

19.08.2008, passed in 1039/2008, the above finding, in our opinion, cannot be challenged by the appellant in this appeal. •\ •"^" MACNo.952 of 2008 ^ 9) So far as the quantum of compensation is concerned, we gather from the Tribunal's records that the daimant, for the reasons best known to him, did not examine any doctor before the Tribunal 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. 10) 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 for the assessment of the compensation came up for 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 to rely on the disability certificate issued by High Court Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 per cent. The Hiah Court committed gross error in overlookinfl Ihe that Dr. Sudhakar Reddy's medical certificate was reiected bv the Tribunal for non-examination of that doctor. The Tribunal has determined the £hysicaLdisabi!itv atj5 per cent on the basis ofthe d^Bosition.of DL_K.M._Mitra and awarded a iust and fair compensation. The High Court disturbina enhancing 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 t— 'vey'^s JS MACNo.952 of 2008 withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn." 11) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, repori:ed 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. is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what It 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 not admissible in evidence. Whether the disability at 60% was calculated on the basis ofthe provisions ofthe Workmen's Compensation is also not known as to Act or otherwise is not known. It 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 In absence of any contention having been raised in parties. 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." 12) The medical certificates 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. MACNo.952 of 2008 Thirupal Reddy (Supra) and Rajesh Kumar alias Raju v. Yudhvir Singh and another (Supra), cannot be taken into consideration for enhancement ofthe compensatioh in the case. 13) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal. 14) The' appeal filed by the appellant/ claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. 15) No order as to costs. Sd/- Chief Justlce Sd/- Sunil Kumar Sinha Judge \: