a^i »I'^a'^^tr •^f««ii*^<'ai AppSicant I'BLE SHRI RAJEEV GUPTA, C.J. HON'BLE SHR! SUhiiL KUMAR SSNHA, J. Mlsc. Appeaj No. 460 of Kumari Amrita, Aged 4 Yrs. D/o Harjit Singh, Through Next Friend Smt. Gurmit Kaur W/o Harjit Singh, R/o At. & PS Kharors, Rsipur. tespondents 1 Arun Kumar, Aged 32 Yrs. S/o Chintsram Sahu, R/o Transport Nagar, Tattbandh, Raipur (C.G.) Darshan Singh Sohi, S/o Sindhu Singh Sohi R/o 48, Tatibandh, Raipur. 3. The Orlental Insurance Co. Ltd. Bv r^L?'IL ff r^:."—:-wtr\es:^^ Uivisionsi ivianaysr, uiviSionai urTics Pandri Raipur. (C.G.) Appeal under Section 173 of the Motor Vehicles Act. 138E Present : Shri Raja Sharma. iearned counsei for the appeliant. Shri Sury'akant Mishra, !earned counsel for respondent N0.3. (28th Juiy, 2008) The foilowing order of the Court was passed by tajeev Gupta, C.J. The appellant is seeking enhancement of the compensation awarded bv the Fourth Additional Motor Accidents Claims Tribunal, Raipur, (for short, "the Tribunal") vide award dated 20.12.2005, passed In Claim Case No.12/2005. 2) As against the compensation of Rs.10,50,000/-, claimed by the appeliant / ctaimant Kumari Amrita, a minor gir! aged about four tgiSst l1 Jj [^sy \-'i- years by fiiing a clalm petltion under Section 166 of the Motor Vehicles Act through her mother Smt. Gurmit Kaur for the iniuries sustained by the claimant in the motor accident on 25.02.2002, the Tribunal awarded a total sum of Rs.10,000/- as compensation along with interest @ 9% per annum from the date of fiiing of the claim petltion till the date of actual payment. 3) Shri Raja Sharma, learned counsel for the apDeilant vehementiy argued that the Tribunal has erred in awarding iow compensation of Rs.10,000/- only, though the appeilant/claimant sustained muttiple serious injuries inciudihg fractures in the motor accident and those injuries resulted in permanent disabiiity. 4) Shri Suryakant Mishra, learned counsei for respondent No.3 the Oriental insurance Company Limited, on the other hand, supported the award and contended that the compensation of Rs.10,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances ofthe present case. 5) Before the Tribunal the claimant's mother examined herself as AW1 in support of the claim and for the reasons best known to the appellant/claimant and her mother no doctor was examined before the Tribunal to establish the nature of the injuries said to have been sustained by the appellant/ctaimant in the motor accident and the fact that those injuries resulted in any permanent disability. 6) The questlon whether the medical certificate produced by the clalmant before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence r / for the assessment of the compensation came up for consideration before the Apex Court in the case of A.P.SRTC Vs P. Thirupal Seddy 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 flnd 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 treatlng the injury as permanent disabiiity to be 45 percent. The High Court committey aross error in overlookina the fact that Dr Sudhakar Reddv's medical certificate was reiected bv the Tribunal for_non-examination of that doctor. The Tribunal has determined the phvsical dtsabiiitv at 15 per cent on the basis of the deposition of Dr KM Mitra and awarded a iustand fair compensation. The Hiah Court erred in disturbina the same and enhancina the compensation. Consequently, we aliow this appeai, 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." 7) The Apex Court in a recent dictum in the case of Raiesh Kumar alias Rasu Vs Yudhvir Singh and another, 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 vears. it 1s not known as to »A. •^ wsyis^ ls 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 certiflcate had not been examined. Unless the author of the certificate examined himself. it was not admissible in evidence. Whetherthe disability at 60% was catculated on the basis of the provisions of the Workmen's Compensation Act or otherwlse is not known. tt is aiso not known as to whether he was competent to issue such a certificate. It even does not. appear that the contentions raised before us ihad elther been raised before the Tribunal or the High Court. The Tribunal as aiso the High Court, therefore, proceeded on the materials brought on record by the parties. !n absence of any contention having been raised in regard to the applicabillty of the Workmen's Compensation Act which, in our oplnion, ex facie has no appllcation, the same, in our opinion, cannot be permitted to be raised for the first time." 8) In view of the above quoted dicta of the Apex Court in the cases of A.P.SRTC Vs P. Thirupal Reddy (supra) Rajesh Kumar alias Raju Vs Yudhvir Singh and another (supra), the medicai certificate produced by the appetlant/claimant before the Tribunal without examining the Doctor who had Issued the said certificate, cannot be taken into consideration for enhancement of the compensation awarded bythe Tribunal. 9) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribuna!. .<;' 10) The appeal fiied by the appellant/ ciaimant for enhancement of the compensation, therefore, is liabte to be dismissed and is herebv dismissed. 11) No order as to costs. Sd/- ChiefJustice Sd/- Sunil Kumar Sinha Judge nimmi