DIVISION BENCH v. Bajrang Agrawal

Shri AK Prasad, counsel for the appellant. Shri Rakesh Sahu, counse! for respondent No. 1. None for respondent No.2. ORDER (1Sm September, 2009) The following order of the Court was passed Rajeev Gupta, C.J. Appeilant Purnoram Yadav is seeking enhancement of the compensation awarded by the Motor Accident Claims Tribunal, 'the Tribunal') vide award dated 24.06.2006 Jashpur, (for short passed in Claim Case No.30/2005. 2) As against the compensation of Rs.21,97,000/-, claimed by the appellanVclaimant by fiting a clalm petition under Section 1 66 of ^ the Motor Vehicles Act for the injuries sustained by him in the motor accident on 25.10.2004, the Tribunal awarded a total sum of Rs.36,025/- as compensation along wlth interest @ 6% per annum from the date of filing of the cialm petition. 3) Shri AK Prasad, learned counsel the appellant vehemently argued that the Tribunal has erred in awarding iow compensation of Rs.36,025/- oniy, though the appellant/claimant sustained multiple serious Iniuries including fractures in the motor accident resulting in permanent disability.

4) Before the Tribunal the ciaimant examlned himself as AW/1 . For the reasons best known to the appellant / claimant, no doctor was examined before the Tribunal to establish the nature of the injuries said to have been sustained by the appellant/claimant In the motor accident and the fact that those injuries resulted in any permanent disability. 5) The question whether the medical certificate produced by the claimant before the Tribunal without examlning 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 Vs P. Thirupal Reddy reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under: - "6. After hearing learned counsel respondent - claimant who made an attempt to support the order of the High Court, we find that there was no justificatlon for the High Court to rely on the disability certificate issued by Dr Sudhakar •%> r-^^^ i j (^ 3 Reddy and enhance the compensation by treating the injury as permanent disablllty to be 45 percent.

The Hiqh Court committed aross error in overlookina the fact that Dr Sudhakar Reddv's medical certificate was relected bv the Tribunal for non-examination of that doctor. The Tribunal has determined the phvsical disabilltv at 15 per cent on the basis of the deposition of Dr KM Mitra and awarded a iust and fair compensation. The Hiah Court erred in disturbina the same and enhancing the compensation. Consequently, we at low 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 Tribuna!, If it has not already been withdrawn. " 6) The Apex Court in arecent dictum in the case of Rajesh Kumar aiias Raju Vs Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the followlng observations in para 11 : "11. The certlficate 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.

On what 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 admissible In evidence. Whether the disabitity at 60% was calculated on the basts of provisions of the Workmen's Compensation Act It is also not known as or otherwise is not known. 'vs. <,?,. '^.^-^' >^^v-"^' '^ to whether he was competent to issue such a certiflcate. It even does not appear that contentions raised before us had either been ralsed before the Tribunal or the Hiah Court. The Trlbunat as also the High Court, therefore, proceeded on the materials brought on record by In absence of any contention having the parties. been raised in regard to the applicability of the Workmen's Compensatlon Act whlch, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be ralsed 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. Thirupal Reddy (supra) Rajesh Kumar aiias Raju Vs Yudhvir Singh and another (supra), the medical certificate disability certificate produced appellant/clalmant before the Tribunal wlthout examining the Doctors who had issued Vs those certificates, cannot be taken into consideration for enhancement of the compensation in the case. 8) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal. 9) The appeal, filed by the appellant/clalmant for enhancement of the compensation, therefore, is liable to be dismissed and Is hereby dismlssed. 10) Np otder as to costs. Sd/- Chiefjustice Sd/- T.P.Sharma Judge