Research › Search › Judgment

Chhattisgarh High Court · body

2013 DIGILAW 329 (CHH)

Shiv Kumar v. Sahender Rajwar @ Surendra Rajwar

2013-11-20

SANJAY K.AGRAWAL

body2013
ORDER Sanjay K. Agrawal, J. 1. This is claimant's appeal for enhancement of compensation awarded by the 2nd Addl. Motor Accident Claims Tribunal, Surajpur, Distt. Sarguja (for short 'the Tribunal') in claim case No. 17/2004 vide award dated 21.03.2005. As against compensation of Rs. 4,85,000/- claimed by the appellant/claimant by filing application under Section 166 of the Motor Vehicles Act, 1988 (for short "the MV Act") for the injuries sustained by him in the motor accident on 03.09.2001; the Tribunal, on a close scrutiny of the evidence led, material placed and submissions of the parties, awarded a total sum of Rs. 33,000/- as compensation along with interest @ 9 percent. 2. Shri Sanjay Agrawal, learned counsel appearing for the appellant would submit: although the appellant has not examined the doctor to prove the injuries sustained by him in the accident, however, the learned Tribunal has fallen in error in awarding low amount of compensation of Rs. 33,000/- only. 3. On the other hand, Shri Pankaj Agrawal, learned counsel appearing for the respondent No. 2/Insurance Company supported the award impugned and submitted that the amount of compensation awarded by the Tribunal is just and proper compensation in the facts & circumstances of the case which does not call for any interference. 4. I have heard the learned counsel appearing for the parties and perused the material available on record including award impugned. 5. The Supreme Court in case of A.P. SRTC Vs. P. Thirupal Reddy (2005) 12 SCC 189, 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 High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing 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, if it has not already been withdrawn. 6. The Supreme Court in case of Rajesh Kumar alias Raju Vs. Yudhvir Singh and another (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. It is not known as to whether 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 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 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 record by the parties. In absence of 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. 7. Division Bench of this Court in case of Pradeep Kumar Sahu Vs. Sarupa Sahu & another vide order dated 31st March, 2009, placing its reliance upon the dicta of Supreme Court in the cases referred above held in para 8 as under: 8. 7. Division Bench of this Court in case of Pradeep Kumar Sahu Vs. Sarupa Sahu & another vide order dated 31st March, 2009, placing its reliance upon the dicta of Supreme Court in the cases referred above held in para 8 as under: 8. 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 certificate produced before the Tribunal in the absence of examination of the Doctor issuing the certificate is neither admissible in evidence nor can be taken into consideration as substantive evidence for assessment of the compensation in the case. 8. Admittedly, the claimant in his own wisdom did not examine Doctor to prove the injury sustained in the accident and to prove the resultant loss of earning capacity. In view of the dicta of the above referred cases, the injury reports, certificates produced, in the absence of examination of the Doctor issuing the injury reports, certificates are neither admissible in evidence nor can be taken into consideration as substantive evidence for enhancement of compensation in the case. 9. For the reasons mentioned hereinabove, I do not find no ground for enhancement of the compensation awarded by the Tribunal. The appeal filed by the appellant for enhancement of the compensation is therefore liable to be and is hereby dismissed. No order as to costs.