Doman Sahu Vs. Manohar Sahu and anr. - Court Judgment

Excerpt:
- orderrajeev gupta, c.j.1. smt. somshukla sarkar, learned counsel for the appellant is heard on admission.2. appellant doman sahu is seeking enhancement of the compensation awarded by the 4th additional motor accidents claims tribunal, raipur (for short 'the tribunal') vide award dated 19-1-2006, passed in claim case no. 14/2005.3. as against the compensation of rs. 12,80,000/- claimed by appellant/claimant doman sahu, a boy aged about 12 years through his father harilal sahu, by filing a claim petition under section 166 of the motor vehicles act, for the injuries sustained by the claimant boy doman sahu in the motor accident on 31-8-2004, the tribunal awarded a total sum of rs. 15,000/- as compensation along with interest @ 9% per annum from the date of filing of the claim petition till the date of actual payment.4. smt. somshukla sarkar, learned counsel for the appellant vehemently argued that the tribunal has erred in awarding low compensation of rs. 15,000/- only, though the injuries and fracture sustained by claimant boy doman sahu in the motor accident resulted in permanent disability to the extent of 15%. in support whereof a disability certificate (exh. p-9) issued by dr. g.s. bachhu was produced by the claimant before the tribunal.5. the tribunal awarded rs. 10,000/- towards medical expenses; rs. 3,000/- towards special diet; rs. 2,000/- towards pain and suffering. the tribunal, thus awarded a total sum of rs. 15,000/- as compensation to the claimant.6. though the claimant produced a disability certificate (exh. p-9) issued by dr. g.s. bachhu before the tribunal, but no doctor was examined to prove the contents of the said disability certificate.7. the question whether the medical certificate produced by the claimant 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.s.r.t.c. v. 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 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 respondent-claimant is allowed to withdraw the amount of compensation awarded by the tribunal, if it has not already been withdrawn.8. the apex court in a recent dictum in the case of rajesh kumar alias raju v. yudhvir singh and anr. reported in : (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 that 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.9. in view of the above quoted dicta of the apex court in the cases of a.p.s.r.t.c. v. p. thirupal reddy (supra) and rajesh kumar alias raju v. yudhvir singh and another (supra), the disability certificate (exh. p-9) produced by the claimant before the tribunal without examining the doctor who issued the certificate, cannot be taken into consideration as substantive evidence for enhancement of the compensation in the case.10. we, therefore, do not find any scope for enhancement of the compensation awarded by the tribunal.11. the appeal, therefore, is liable to be dismissed and is hereby dismissed summarily.

Judgment:
ORDER

Rajeev Gupta, C.J.

1. Smt. Somshukla Sarkar, learned Counsel for the appellant is heard on admission.

2. Appellant Doman Sahu is seeking enhancement of the compensation awarded by the 4th Additional Motor Accidents Claims Tribunal, Raipur (for short 'the Tribunal') vide award dated 19-1-2006, passed in Claim Case No. 14/2005.

3. As against the compensation of Rs. 12,80,000/- claimed by appellant/claimant Doman Sahu, a boy aged about 12 years through his father Harilal Sahu, by filing a claim petition under Section 166 of the Motor Vehicles Act, for the injuries sustained by the claimant boy Doman Sahu in the motor accident on 31-8-2004, the Tribunal awarded a total sum of Rs. 15,000/- as compensation along with interest @ 9% per annum from the date of filing of the claim petition till the date of actual payment.

4. Smt. Somshukla Sarkar, learned Counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs. 15,000/- only, though the injuries and fracture sustained by claimant boy Doman Sahu in the motor accident resulted in permanent disability to the extent of 15%. In support whereof a disability certificate (Exh. P-9) issued by Dr. G.S. Bachhu was produced by the claimant before the Tribunal.

5. The Tribunal awarded Rs. 10,000/- towards medical expenses; Rs. 3,000/- towards special diet; Rs. 2,000/- towards pain and suffering. The Tribunal, thus awarded a total sum of Rs. 15,000/- as compensation to the claimant.

6. Though the claimant produced a disability certificate (Exh. P-9) issued by Dr. G.S. Bachhu before the Tribunal, but no doctor was examined to prove the contents of the said disability certificate.

7. The question whether the medical certificate produced by the claimant 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.S.R.T.C. v. 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 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 respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn.

8. The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju v. Yudhvir Singh and Anr. reported in : (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 that 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.

9. In view of the above quoted dicta of the Apex Court in the cases of A.P.S.R.T.C. v. P. Thirupal Reddy (supra) and Rajesh Kumar alias Raju v. Yudhvir Singh and another (supra), the disability certificate (Exh. P-9) produced by the claimant before the Tribunal without examining the Doctor who issued the certificate, cannot be taken into consideration as substantive evidence for enhancement of the compensation in the case.

10. We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal.

11. The appeal, therefore, is liable to be dismissed and is hereby dismissed summarily.