^^^^'^s^ ^ip,I^^^^^^^^^^^^^S Q°) \r HIGHCOURT OF CHHATTISGARH AT BILASPUR A.(C)No.1088/2009 iJUSTiCESUNIl.KUMARSINHA& A KQN'BLE SHRI JUSTICE R.L. JHANWAR Mangal Mahilang, aged about 13 year, minor through father Khoman Mahilang S/o Shri Yad Ram Mahilang; aged about 42 year, Resident of ward No. 16, behind of F.C.I. Mahasamund(C.G.) Versus Punarad Ram Sahu, S/o Shri Sukalu Ram Sahu, aged about 35 year, Resident of Village -Khatti, Poiice Station, Tahsil & District Mahasamund (C.G.) "Dflver- of Vehicle Trucl<No.CG08-ZC-0231 Smt. Manju Jain, W/o Shri Vimal Jain, aged abouf'Wyear, Resident of College Road Mahasamund; Tahsil and District MEihasamund (C.GO /...•:-. :;.^ Owner of the Vehicie bearing RegisteredNo.CQQ8-ZC-0231 Branch Manager the New India Insurance Gompany Ltd.Maclina Building Jail Road, Raipur(C,G.) Limitation 04.02.2007 tQ 03.02.2008) Insurer by vehicie Bearing RegisteredlNo.GGG8-ZC-0231 ISCELLANEOUS APPEAL UNDERSECTION 173 OF THE MOTORVEHieyESACT Shri C.R. Sahuand Shri J.S.P. Chandrasen, Cdunsel for the aapellant. - . : : ' •o.-1 M.A.rCINo.1088/2009 The foiiowing order of ttie Court was passed by ia,J. Heard on I.A. No.01/2009, which is an appjication for condonation of delay in fiiing the appeal. (2) It is stated that the appea! is barred by 223 days of limitation. On due consideration of the submissions of learned counsel for the appellant, vve afe satlsfied that the appellant has sufficientiy explained the delay infiling the appealand the same deserves to be condoned. Accordingly, I.A.No.01/2009 is allowed and thedelay in filing the appeal is hereby condoned. -'T&i^^A.^,..^ (5) Also heard on admission. (6) Appellant/claimant Mangal Mahilang has filed this appeal for enhancement of the amount of compensation awarded in Ciaim Case No.91/2008 by the Chief Motor Accident Claims Tribunal, Mahasamund (C.G.) on 01.10.2008. . (7) Appellant/claimant Mangal Mahilang fiied a petition under Sectjon 166 of the Motor Vehicles Act claiming compensation of Rs.3,75-,000/- on account of injuries sustained by him in the motor accident, which took place on 13.12.2007. Hepleadedthathe received multiple serious injurlesin the said accident on account of rash and negiigent driving of the offending truckby its driver. (8) The appellant/claimant examined himself as AW-1 and another witness Komal (AW-2) was also examined by the appellant in support of his claim petition. He fited many documents relating to his treatment and he also filed a permanent disability certificate issued IR his favour. M.A.fC'lNo. 1088/2009 'r, ^ (9) The tearned Clalms Tribunal recorded a finding that the accident occurred on account of rash and negligent driving of the offending truck by its driver and the respondents were jointly and severatly liable to pay compensation of Rs.68,246/- to the appeliant/claimant on accountof personal injuries sustained by him in the motor accident. Learned eounsel for the appellant vehemently argue that the Tribunal has erred in awarding low compensation of Rs.68,246/- oniy, whereas, the appellant/claimant sustained multiple serious injuriesand he alsa StiTfe'retfp'ermahent disability. (11) For the reasons best known to the appellant/claimant, no doctor was examined before the Tribunal to estahlish the nature of the injuries said to have been sustained bythe appeilant/claimant in the motor accident and the fact that those ihjuries resuited in any permanent disabiiity, (12) The question whether the medicat 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. SRTC v. P. Thiivpal f2 SCC f88, wherein itwas observed in para 6 as under: "6. After hearing iearned 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 overlookina the fact that Dr. Sudhakar Reday's medical certificate was reiected bvthe Tribunai for non-examination of that doctor. The Tribunal has determined She ohvsical disabilitv at 15 per ceht on the basis of the deDositionof Dr. K.M. Mitra and awarded a jyst and fair comDensaiion. The Hiah Court erred in djsturbina the same and enhanciRathe compensation. M.A.('C'iNo.lOS8/2009 Consequently, we ailow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is ailowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn." The Apex Court in a recent dictum in the case of Raiesh Kumar alias Raiii v. Yudhvir Sinah and another. reported in (200S) 7 SCC 305. reiterated the same view with the following observations in para 11 : "11. The certifieate' in question in this case was obteined aftertwo 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 theaccidenttook place is not known. The authorof the said eertificate had not been examined. Unless the author of the certificate examined himself. .it was not admissibie in evidence. Whether the disability at 60% was caicuiated on the basis of the provisions of W' Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such acertificate. It even does not appear that the contentions raised before us had eifher been raised before the Tribunal or the High Couri:. The Tribuna! as also the High Court, therefore, proceeded on the materials brought on record by theparties.In absence of any contention having been raised in regard to the applicabiiity ofthe Workmen's Compensatipn Act which, in our opinion, ex facie has no application, the same, in our oplnion, cannot be^ permitted to be raised for the first time." In view of the above quoted dicta of the Apex Court in the cases or' A.P. SRTC v. P. Thirupal Reddv (Stipra) and_Ra@sft Kiimar alias Raiu v. Yudhvir Sinah ancfanother (Supra), the certificate produced before the Tribunal in th,e absence of examinationofthe 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. ^'^7. M.A.('C')No.l088/2009 (15) For the foregoing reasons, we do not find any scope for enhancement of the eompensation awarded by the Claims Tribunal. (16) The appeal filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed summarily. [17) No order as to costs. Sd/'- lilKumapSinfaa Judge Sd/- '• Jhanwar Judge /^l.