DIVISION BENCH v. Manoj Kumar Dubey

Judgment

3. Manoj Kumar Dubey S/o Tomar Prasad Dubey, aged about 26 years, R/o Village Sevara, P.S. - Pendra, Distt. Bilaspur (C.G.) Kamlesh Prasad S/o B. Prasad, R/o - 199 B.R. Calcutta Road, (West Bengal) - R/o Rajkishore Singh S/o R.B. South Singh, Subhash Lalli Hugli -106, B.i.R.D. Calcutta (West Bengal) The Oriental Company Bilaspur (C.G.) Insurance Limited, MISCELLANEOUS APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT. 1988 Present:

Shri Yogendra Chaturvedi, appeilant. learned counsel for the ORDER (21st April, 2009) The following order of the Court was passed by Rajeev Gupta, C.J. Shri Yogendra Chaturvedi, learned counsel appellant is heard on admission.

2. Appellant Manoj Kumar Dubey is seeking is seeking enhancement of the compensation awarded by the Additional ^.^-^,, ,.^."^.^'~^ / -("""^ -^.^- ^ Motor Accidents Claims Tribunal, Pendraroad, District-BJIaspur (for short 'the Tribunal') vide award dated 14.01.2009, passed in claim case No. 20/2008.

3. As agajnst the compensation of Rs.21,03,000/- 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 acddent on 26.11.2007, the Tribunal awarded a tota! sum < of Rs.1,70,000/- as compensation along with interest @ 9% per annum from the date of fiiing of the claim petition tii! the date of actual payment.

4. Shri Yogendra Chaturvedi, learned counsel appellant vehemently argued that the Tribunai has erred in awarding low compensation of Rs.1,70,000/- only. though the appellant/claimant sustained multiple external injuries and fractures in the motor accident. I.

5. Though appellant/ clajmant produced medical certificate and disability certificate before the Tribunal, no Doctor was examined before the Tribunal to establish the nature of the injuries said to have been sustajned by the appellant/ 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 clamant 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. "'^-' .&. ...^•:.^^^....^:\^. ^^^^•^ ^ S'^pi^^/. \^ Ai- ^ 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 Hiah 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 deposition of Dr. K.M. Mitra and awarded a just and fair compensation. The Hjgh Court erred in disturbina the same and enhancing the compensation. Consequently, we aliow 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 Slngh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11 : "11. The certificate in question jn this case was is not known as to whether obtained after two years. It 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 ..^ ^5-, •^ author of the certificate examined himself. it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of 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 also the High Court, before the Tribunal or the High Court. The Tribunal as therefore, proceeded on the In absence of materials brought on record by the parties. 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."

8. Now reverting to the present case, though a medica! certificate and disability certificate were produced before the Tribunal about the injuries said to have been sustained by the appellanV claimant in the motor accident and certifying that those injuries resulted in permanent disability, no Doctor was examined before the Tribunal to prove the contents of those certificates.

9. 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), the certificates produced before the Tribunal in the absence of examination of the Doctor issuing those certificates are neither admissible in evidence nor can be taken into consideration as substantive evidence for enhancement ofthe compensation. L^ iB®^^? :'^^^0^ It

10. For the foregoing reasons, we do not find any scope for enhancement of the compensation awarded by the Tribunal.

11. The appeal appellanV daimant enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed summarily., Sd/- Chief Jusdce Sd/- Sunil Kumar Sinha Judge