mv K^ ^^i/iiit^Wit^ H{GHOTyRiT'QF©HIMA1"'I"ISQARMATBILASPUR blVlSIONfeE^CH Coram HQN'BLESHRiRAJEEV<3UPTA,C.,l.& HONfBLEaHRISUNH-KtJMARSiNHA,J. IVIisG.ADDeaKCVNo. 732 of2009 APPELLANT IVIyran Dubey S^o Udayram Dubey ag^ aboyt-43j y^are r/oW Belmundi PS District Bilaspurj (CG) Versus Non-abDlicants Hirri Tah Bilha 1. Deepak Patet 3/0 Shyamji Bhai Patel aged ^abjsyt 22^^^^^^ Narmada Nagar Tahsil and DistrictBiiaspurl(CG) (Driver) j I "•;. . ,•. •"- .' • •"...'••••• 2. Dhan|i Bai Pat^! S/p^^^^ Patel prop. M^Dhan|isBa{li Patei Bavtf|M(H, llV|yi|geli Ro^d T^ and ©jstrjG^Bil9|pur<CG) ^JM(<^er)t^:|III^'^;;i;:.^^^ , 3. Branch IVtanager, Iffeo TokiQ Generai InsLjrance CQmpany Limited, Sho^lNo.3^- 347, 3rd Floor, l^al Gan^a Shopping Mall, ©ERoadRaipurCG (Insurer) j MisceHaneousAbDealunderSection173of1flbto^ Present: Shri A.V. Sndhar, leamed countel for the appeljant. ORDE^ i (8thMay,2G09) I The fbliowing order of tbe Cayrt^^^^, •Rajeev;Gupta,,^^.:Y;::-l;:;''.:/-^.,' ShfiA.¥.SFidhaF,leamed<^nsdfbr^heappellan^ ^: QnlA.No. 01/2009, artapplicatiQnforcQndonationof^^ :ft:llng'the:appeal.^':l':l\^.'-;.':1,,^ cf 2. On due consideration of th6 submissions of learned counsei for the appeljant and the grounds taken jn the applicatlon, we are satisfied that the appellant has succeeded in showing sufficient cause for the delay in filing the appeal. 3. I.A.NO. 01/2009, therefore, is aljowed jand the delay in filing the appeal is hereby condoned. | 4. Shri A.V. Sridhar, leamed counsei for ihe appellant is heard on admission. I 5. Appellant/ claimant IVIurari Dubey is seeking enhancement of the compensation aWarded by the Sixth Additional Motor Accident Claims Tribunal, Bilaspur (forshort 'the Tribunal') vide award dated 19.01.20(^^assecjin^©laimCaseNo.82p3^8. 6. As again^he^©fflper^ati&n;6f l^s^,1?|Q,<)^ by the appellant/ claimantby fllingaclaim petition under Section 166 of the Motor VehiGles j^ f^ l':jl:/;l::l;;';:'':'::;'::-.''^ motor accidenton 06.05.2008, the'Tribunal ^warded a totat sum of 1 Rs.30,000/- ascorripensation along with inNrest @ 9% per annum "r from the date of filing ofthe claim petjtion]tiil^^^^^ .i payment. j :l 7. Shri A.V. Sridhar, leamed counsel for the appellant vehemently argued that the compensation rif R%.30,000/- awarded by the Tribunal is too low in comparison to the serious nature ofthe injurie^sustainedtheappellant/claimantintiemotoi'aecjdent. 8. Rsr the reasons best known the ajDpellant / claimant no doctor was examined before the tribuhal to jestablish the nature of v.;.-^ <' the injuries said to have been sustained by the appellant/ claimant inthemotQracGidentanclthefactthatthoseinjurie^resultedinany permanent disability. j :i';^ ;'".-'. ••^' •:..';' .; 1 9. The question whetherthe med^^ the ctaimant before theTnbunal without exahijning^he Doctor who issued the certificate can be relied upon a$ substantive evidence for the assessment ofthe cOmpensatipn came up for consideration before the Apex Courtin the case of A.P.ISRTC v. P. Thirupai Reddy, reportecj !n (2005) 12 SCC 189, wh^rein it was observed in para6 asunder: ) 1 "6. After hearlng learned^^ ^ res|XirKient^lairnant w support tlie order of (he Migtr G(^urt, we find that there;wasno]MstiffGatjQn^t^ on the disability certificate issued psy Dr. Sudhakar Reddyand enhahcethe compen^ation bytreating the injuryas'permanentdisabilitytobe45percent. The Hidh Court committed aross error in overlookina the fact that Dr. Sudhakar Reddv's medical certificate was reiected bvthe Tribunal for non-examin^ioh of tha^doctoT^3lTe_^Tribynal^^ determined the ohvsical disabilitv &t 15 per cent on the basis ofthe deposition 6f Dn K.M. Mitra and awarded a iust and fair comDens^ion. The Hiah, Court erred in disturbina the sam^ ancl enhancjna the compens^|on.^ Consequent!^ ^we allow this appeal, set aside the irnpiigned cjrder and restore the award ofl^e^laimsTribunaI.j^ ' -©iaimant is allowed to withdrawj the amount of eompensation awardedbytheTribunal, ifithasnot already been withdrawn." j 10. The Apex Court in a recent dictum lin the case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the foSlowing observations in para 11 : I; •; 'l ^ lifii' t " 11. The certificate in question in this case was obtained after two ysars. it is not known as to whether the Civll Surgeon of the hospital treated theappelJant.Onwhatbasis.suchacertificatewas jssued two years after the accident took piace is not knowrv. Ihe author of the said certtftcate had not been examined. Unless thel authdr of the certificate examined himseif. jt was not admissible iri eviderice. Whether the disability at 60% was calculated on the basis of the provisions of the Workmeh'^ Compensation Act or jatherwise is not known. It is also not known as to ^vhether he was competent to issue such a certlficate. It even does not appear that the contentions rlaised before us had either been raised before th^ Tribunal or the NghjCoyrt. The Tribunal^as alsoj^ therefore, proceeded on the mat^rials brought on record bythej3arties. In absenc& having been raised in regard to tt^e applicability of the Workmen's Compensation A^t which, in our' opinion, ex facie has noapplication, the same, in our opinion, cannot be permitted j to be raised for the first time." j v' . , " - 1 . ' •, j:: 11. Now reverting to the present case, thpugh the appellant filed .j the medical certificate and disability certificate showing that the claimant suffered temporary disabiiity on jaccount of the injuries sustained by the claimant in the motor accident, no doctor was examined before the Tribunal to prove jthe contents of those certificates. 12. In view of the above quoted dicta ojf 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 certificates filed by the appellant/ claimant before the Tribunal in the absence of examination of the Doctor jssuing those certificates cannot be taken into consideration as substantive evidence for enhancement ofthecompensationinthe case. w:tess^ ^^!csftcw^. fliSSSBS^BSI^SBB^S^^B pi|t%igi8i|SKIiiS!BIJ%? ^m^m' 'smiSMiWii y subbd 13. We, therefore, d6 nbt find any scope for enhancement of the compensatjon awarded by the Tribunal. 14. The appeal filed by the appellanV claimant for enhancement of the compensation, therefore; is liable to be dismissed and is herebydismissedsummarily. Sd/- Chiefjustice Sd/- Sunil Kumar Sinha Judge