Dismissed

Rajendra Kumar Dewangan v. Kamta Lal Diwan and Others

Chhattisgarh HC6 Apr 2010MAC/352/2010

Case brief

AI extract

What is this about?

Appellant seeks enhancement of compensation awarded by the Motor Accident Claims Tribunal. The Division Bench held that medical certificates produced without examining the issuing doctors cannot be relied upon for enhancement, citing Supreme Court precedents, and dismissed the appeal summarily.

What did the court decide?

The appeal filed by the appellant/claimant for enhancement of compensation is dismissed summarily.

Rajendra Kumar Dewangan Vs Kamta Lal Diwan and… — Motor Accident Claims | Chhattisgarh HC (2010)

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HIGH COURT OF CHHATTKGARH AT BILASPUR DIVISION BENCH

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CORAM: HON' HON'	BLESH BLESH M.A.	RIRAJEEVGUPTA, C.J.& RIRANGNATHCHANDRAKAR, J. C.No. 352of2010
Appellant CJaimant		Rajendra Kumar Dewangan, S/o Krishn Kumar Dewangan, aged about 35 years, R/o Durga Chowk, Santoshi Nagar, Raipur, District Raipur(C.G.). VERSUS
Respondents Non-claimants	1.	Kamta Lal Diwan, S/o Harischandra Diwan, R/o Village Gadadih, Police Station Kurud, District Dhamtari (C.G.). (Driver ofvehicle Motorcycle bearing registration No. CG 05/B-1721)
	2.	Dharendra Diwan, S/o Harishchand Diwan, R/o Village Gadadih, Police Station Kurud, District Dhamtari (C.G.).
		(Registered owner of vehicle Motorcycie bearing registratjon No. CG05/B-1721)
	3	The In-charge-Officer , the Future Generali India Insurance Company Limited, through Branch Manager, Branch Office, Block-A, Maruti Business Park, Near Dhuppad Petrol Pump, G.E. Road, Rajpur, Tahsil & District Raipur(C.G.). (Insurer of vehicte Motorcycle bearing registration No.CG 05 B/ 1721).

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IVIisc. Aopeat U/S 173 of the Motor Vehicles Act. 1888

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Present: Shri Shivendu Pandya, counsel for the appellant.

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ORDER

(6th April.2010)

The following order of the Court was passedby Rajeev Gupta, C.J.

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Shri Shivendu Pandya, learned counsel for the appellant is heard on I.A.No.1 of 2010, an application for condonation of delay in filing the appeal.

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On due consideration of the submisstons of learned counsel for the appellant and the grounds taken in the application, we are satisfad that the appellant has succeeded in showing suffident cause for the delay in filing the appeal. 3) I.A. No. 1 of 2010 therefore, is allowed and the delay of 34 days in filing the appeal is hereby condoned.

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Shri Shivendu Pandya, learned counsel for Uie appellant is heard on admission.

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Appellant - Rajendra Kumar Dewangan is seeking enhancement of the compensation awarded by First Additional Motor Accident Claims Tribunal, Raipur, (for short 'the Tribunal') vide award dated 08.10.2009, passed in Claim Case No.56 of2008.

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As against the compensation of Rs.8,00,000/- claimed by the appellant/clajmant by flling a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 07.08.2008, the Tribunal awarded a total sum of Rs.95,362/- as compensation along with interest @ 6% per

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annum from the date of filing of the claim petition till the date of actual payment.

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Shri Shivendu Pandya, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.95,362/- only though the appellanVclaimant sustained multiple serious injuries including fractures in the motor accident resulting in permanent disability.

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From para 12 of the impugned award, we gather that neither any disability certiflcate was produced before the Trtbunal nor any doctor was examined 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.

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The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certifjcate 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:

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"6. After hearing learned counsel for the respondentclaimant who made an attempt to support the order of the High Court, we find that there was no justiflcation for the High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compen^ition by treatmg the injury as permanent disabilSty to be 45 per cent. The Hiah Court committed QTQSS error in

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overiookina the fact that Dr. Sudhakar Reddv's meclJcal certificate was reiected bv the Tribunal for nonexamination of that doctor. The Tribunal has determined the phvsical disabilitv at 15 per cent on the basis of the de&^sition of Dr. K.M. Mitra and awarded a iust and fair compensation. The Hiah Court erred in disturbina the same and enhancina 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."

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The Apex Court in a recent dtetum in the case of Rajesh Kumar alias Raju v. Yudhvfr Stngh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11 :

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"11. The certificate in question in this case was obtained after two years. It is not known as to whether the Civjl 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 admissibie 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 cwnpetent to issue such a certiflcate. It even does not appear that the contentions raised before us had either been ralsed 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

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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."

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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 medical certificates produced by the appellanVclaimant before the Tribunal without examining the Doctors who had issued those certificates, cannot be taken into consideration for enhancement ofthe compensation in the case.

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