F- ^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI N.K. AGARWAL, J. Misc. Appeal (0 No. 1396 of 2007 Appellant : smt Leela Bai, aged about 46 years, Claimant wlfe °f late Faguram @ Babulal resident of Labour Colony; Darri, tahsil Katghora, distt. Korba C.G. Respondent No.1 Driver Respondent No.2 Owner Respondent No.3 Insurer VERSUS Ramkumar Sahu, aged about 27 years, son of Kedar Sahu, resident of Kukda,s P.S. Balauda, distt. Janjgir-Champa, presently resident of Raksipara, Darri, Tah. Katghora, distt. Korba C.G. Rana Mazumdar, aged about 36 years, son of P.S. Mazumdar, resident of Sada Colony, Qtr. No. MIG/2/279, Jamnipali, tah. Katghora, distt. Korba C.G. National Insurance Company Ltd through the Branch Manager, Branch Office, Kosabadi, Korba, distt. Korba through the Divisional Manager, Divl. Office, National Insurance Co. Ltd. Korba C.G. Memo of appeal under Section 173 of the Motor Vehicles Act. Present: Shri Kalyan Kalamkar, counsel for the appellant. Shri B.N. Nande, counsel for respondent No.3. ORDER ith (04tnAugust,2011) The following order of the Court was passed by Rajeev Gupta, C.J. AppellanV claimant Smt. Leela Bai i? seeking enhancement of the compensation awarded by the Additional Motor Accident Claims Misc. Appeal (C) No. 1396 of2007 Tribunal, Katghora, district Korba (for short 'the Tribunal') vide award dated 25.08.2007, passed in CIaim Case No. 138/2007. 2) As against the compensation of Rs.9,88,000/- claimed by the appellanV claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by her in the motor accident on 14.04.2006, the Tribunal awarded a total sum of Rs.2,25,500/- as compensation to the claimant along with interest @ 8% per annum from the date of filing of the claim petition till the date of actual payment. 3) Shri Kalyan Kalamkar, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.2,25,500/- only though the appellanV claimant sustained multiple serious injuries including fractures in the motor accident resulting in permanent disability to the extent of50%. 4) Shri B.N. Nande, learned coun^el for respondent No.3, the National Insurance Company Limited, the insurer of the offending vehicle Truck, on the other hand, contended that the Tribunal has erred in recording a finding that the injuries and the fractures sustained by the claimant in the motor accident resulted in permanent disability to the extent of 50% as the claimant did not examine any doctor before the Tribunal for establishing the above fact. 5) Before the Tribunal, the claimant examined as many as two witnesses including herself (AW1 Smt. Leela Bai and AW2 Madan Singh) in support of her claim. For the reasons best known to the claimant, no doctor was examined before the Tribunal for Misc. Appeal (C) No. 1396 of2007 |in»w establishing the number and nature of the injuries said to have been sustained by the claimant in the motor accident and the fact that those injuries resulted in any perm.anent disability. 6) 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. SRTC 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 Hiah Court committed 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 disabilitv at 15 per cent oh the basis of the deposition of Dr. K.M. Mitra and awarded a iust and fair compensation. The Hiah Court erred in disturbina the same and enhancina the compensatjon. 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." ^. 7) The Apex Cburt in a recent dictum in the case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in Misc. Appeal (C) No. 1396 of 2007 h^: (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 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 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 Hjgh Court, therefore, proceeded on the materials b.rought 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." 8) The medical certificate and the disability certificate produced by the claimant before the Tribunal without examining the doctors who had issued those certificates, 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), cannot be taken into consideration for enhancement of the compensation in the case. ^ 9) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal. \ Misc. Appeal (C) No. 1396 of2007 10) The appeal filed by the appellant/ claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. 11) No order as to costs. subbu Sd/- Quef Justice Sd/- N.K.Agarwa! Judge, hNN*l«^.