Chandrabhan Tiwari v. Shivnarayan

Judgment

1. Shivnarayan, S/6. Amarsay, /NON-A}>PL1CANTS Aged years, Occupation- Driver, R/o. village 26 Agrastpur, P.S. & Tal-isil ,f\f\Surajpur; Distt. Surguja (C.G.). ^A ^GA^' \^^~ y\ ?' - .^ '.\aK'»tv:^'' '••"\y^..y 2. .-•" y y ./L/fy'"" * ' y* 4^~ /*** /^' I/ .^^ ,-••' <t<?' /'^/J^°~ ^' . (DRIVER) Jawaharlal Gupta, S/o. l^atc £. Kamlal Gupta, Aged about 45 /^. Occupation-Business, years, years, Owner of the vehicle, R/o. Main v Road, Surajpur, P.S. &. Tahsil Surajpur, District Surguja (C.G.). (OWNER)

3. National Insurance Compariy Amited, Through Uivision Manager, Korba, Distt. Korba (C.G.). (INSURER) t T— ^ APPEAL U/8, l'/3 QF M.V.ACT FOR THE^NHANCEMENT t, ©TTl.H'i'S, fac!!''-!^ —..Df>!^.!N.'a.-....z..^.v1./&£: an^r 'qar ('gri^^Er) am^i'wl^^ro wnsn^rwiN? TOnw^ft'isn^i ^TORT^ 1WWB if'fyst •d'lff?!' ^

SB: HON. SHRI JUSTICt N.K. AGARWAL 19-11-2009 1 Shri Ashok Kumar phulda, Advocate, for the appellants. ghri Raj Awasthy, 4dv- for the respondent No. 3. Appellants/ clauuajits are seeking enhancement of the 2. compensation awarded b^ award dated 25-11-2004 passed by IIIrf Additional Motor ^.ccident Claims Tribunal, Surajpur CFTC), Distt. SargLija pijissed in Claim Case No. 43/2002 preferred by the claima^its under Section 166 of the Motor Vehicles Act, 1988 (herei^iafter referred to as fhe Act). ,As agauist the con^pensation of Rs. 6,00,000/- claiiued 3. by the appeUant/claim^at by fiting a clatDi petition under fhe injuries Section 166 of fhe M|3tor Vehicles Act sustained by appellant/d;laimant in fhe motor accident on 24- 10-2000, the Tribunal awarded a total sum of Rs. 1,000/- as compensation. ! Shri Ashok Kumar Shirida, leamed coiinsel for the 4. appeilant vehemently argued that the Tribunal has erred in awardmg low compensation of Rs.1,000/- only, whereas the claimant sustained miiltiple serious uijuries in fhe motor accident. 1 rr-" ;iit '•?; /ps:r;if\ 1 ^..^s:y [. •^grcpre', T3r?JRW •^ 'qiW 3tT^?I ('lj4i-i«l^t) iBI^I W I<;-li<»> ^sn 3?Ti?f at*ffli»> TOiiwaft?! ai^r *T^rl4t*t ^ffi^f "^ fS^Si <f<ii^< ^siRpTsnt^! Per contra, Shri Av^asthi, leamed coiinsel appearing for 5. in the facts aad submits that the respondent no. 3 circumstances of the casje, the award passed by the Tribunal ot reqiiire any enhancemeut and fhe is adequate and it does r| appeal deserves to be di^missed as fhe doctor has not been examined to prove injury^ 6. For the reasons be^t kaown fhe appeBant / claimaat no doctor was examined b ;fore the Tribiinal to establish the nature of fhe tnjuries s^id to have'been sustalned by the clalmant in the motor ac^ident and fhe fact that fhose injuries resulted in any permanei^t disability. The question wheqier the medical certt&cate produced 7. by the claimant before ^he Tribunal wifhout examining the certiflcate can be relied upon as Doctor who issued fhe substanti.ve evidence for Ithe assessinent of fhe coiupensation came up for consideration before the Apex Court ia fhe case of A.P. SRTC v. P. Thirupal Reddy, reported m (2005) 12 SCC 189, wherein it was observed in para 6 as under : leamed hearin^ counsel "6. After respondent-claimant who inade an attempt support the order pf fhe High Court, we find that there was nojustififcation for the High Court tei rely on the disabflity ce^tificate issued by Dr. Sudhakar Reddy and enhance the compensation by treatine-- - ^ ^^^SV^-^^t3—</^—]^ /200^—1-90.00.). 'q -'iFTRTO, '^ftwre', 'fslcli'H'K 3!T^?I '<'[» (•j'rfjl'^I SiI^fWft'IW 'tTtff Sirt?T iSirq^ wnwaters^i <M4t^^ ^H^ff ^ f^'^l' ^f^'^1' ^3jfii»?3ni^i coinmitted ^ETOSS perm^nent disability theinjury as to be 45 per cent. The Hieh Coiir overiookine the fd.et that Dr. Sudhakar Reddv^s medical certificate was rejected bv the Tribunal for f fhat doctor. The TMbunal has non-examlnation d l^sical disabilitv at 15 per cent on detennined the ph' fhe basis Qahe^djeBositioii^ofJDr.K.M.Mltra.and awarded a iust ailid fair compensation. The High Court erred in distiirbirK the same aad enhanctng fhe compensation} Consequently, we allow this appeal, set aside pie impugaed order and restore }laims Tribimal. The respondent- the award of the Q allow^d to withdraw the axaount of claimant by the Tribunal, if it has not coiapensation awatded already been wlthdjrawii. The Apex Court in | a recent dictum in the case ofRajesfa 8. Kumar aBas Raju v. Y^idhvlr Sin^ti aad another, reported in (2(%)8) 7 SCC 30S,| reiterated the same viesv wlth the following observations m para 1 1 : i It "11. The certific&te in question ln this case was is not known as to obtained after twr®years. whfither the Civfl iSiirgeon of the hospital treated fhe appellant. On what basis, such a certificate was issued two years after (he accident todk place is not known. The author of the said certi&cate had not been examined. Uriless fhe author of the certtBcate exauiined himsetf, it was not fhe disabUity at 60% was evidence. Whethek' calculated on fhej basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as to whefher he was admisslble ;;reK3^li!:ci!nBT<ra7i.il|ra—;;s/95—ll/2u,)8—I.BO.OCO. €^Zt t, »TitWi'o,ToR:T'rey ^iWCTt'S-^ll^' •s^iisiti ('^(i-^««t() y3)ir^sg iiw '•musn^iwwF TBIW^gsd^t ^i'yici'^-t ^f^ ^F' fs^el ^f^^" ^•sifwsntsi competent to issue) such a certificate. It even does not appear fhat tljie contentions raised before us had either been r^ised before tfae Tribimal or the High Coiirt The 'q-ibunal as also the Hl^i Court, therefore, proceed^d on the materials brought on record by the parti^s. In absence of any contenttion having been raisedj in regard to fhe applicabiJity of in our the Workmen's C<jimpensation Act which, opmion, ex facie I-tas no application, fhe same, m our optnion, caiini|>t be permitted to be raised for the first time." In the tnstant casej it is not proved as fo how many days 9. the mjured remained inj hospital. It is also not proved as to therefore, how much aaiount he| spent in treatment and, the case, considering the facts j and circumstances of particularly when fhe ddctor has not been examined to prove the tajiuy and certificat^s, an amount of Rs. 1,000/- has been awarded as compensatidn to the claimant ' . In vlew of the abqve quoted dicta of the Apex Court in 10. fhe cases of A.P. 8RTC v. P. Thlrupal Reddy (Supra) and Rajesh Kuinar alias Raju v. Yudhvir Sln^i and aaother (Supra), the certificate produced before the Tribimal in the absence ofexamination;ofthe Doctor issuing the certificate is neither admissible in' evidence nor can be faken into consideration as substantive evidence for assessment of the compensation in the case. 1 )- :.-^.1<<&,^^^^;^^^-^y^t]^—}:^/95—11/200^—1,00.000. ;, wsw.'w, Tcicrray R'-« S!^[TT3RT(^f35!?q: Sfl^l'WfiFIW wa an^r »ii»' TO!IW8fCT3iR?l <^T<fl^<ftt ^W^ ^ f?^ ^sifimsn^!

11. For the foregoing enhancement of (he 12. The appeal ffledj 1'^asons, I do not find ,,any scope for coiuflensatlon awarded by the Tribunal. jpensation, therefore, is liable to be appellant/daimant enhancement of the cou| dismissed and is hereby 4ismissed. 13. No order as to costsl Sd/- N.K. Agraw'ai Judge j ?/ ^%^i-<ilA^rw4^-:T^Tu^—:';S/95—11/2^0;-.;—1.00,00;>.