HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE- SHRI RAJEEV GUPTA, CJ. HON’BLE SHRI SUNIL KUMAR SINHA, J. Misc. Appeal No. 602 of 2004 Appellant Ku Sahodara Bai, D/o Mohitram Tiwari Claimant Aged about 25 years, R/o Bada Bazar, Behind Saraswati Shishu Mandir, Mungell, Tahsll Mungeli Distt Bilaspur (CG) VERSUS Respondents 1 Hirendra Kumar S/o Ramgulam Driver & Owner Sharma, aged about 38 years Driver and OWner of Hero Honda Splendor Registration No.CG 09-A— 1028, R/o Hathrnudi, PS Kunda Tahsil Pandariya, Distl Kavardha (CG) Insurer 2 The Oriental Insurance Company Limited, Biiaspur (CG) Misc. Appeal under Section 173 of Motor Vehicles Act, 1988 Present : Shri Gautam Khetrapal and Shri Rakesh Sahu, counsel for the appellant. None for respondent No.1 though served. r Shri PS Koshy, counsel on behalf of Smt Chitra Shrivastava, counsel for respondent No.2. Order (02nd Jury, zoos) The following order of the Court was passed by Rajeev Gupta, C.J. Ku.Sahodara .Bai is seeking enhancement of the compensation awarded by the Second . Additional Motor Accidents Claims Tribunal Mungeli, District a Appellant/claimant Bilaspur (for short ‘the Tribunal’) vide award dated 28.02.2004, passed in Claim Case No.13/2003. 2) As against the compensation of Rs.5,90,000/- claimed by the appeilant/ 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 10.10.2002, when the motorcycle on which she was travelling met with an accident and slipped due to rash and negligent driving of the motorcyclist, the Tribunal awarded a total sum of Rs.17,788l~ as compensation along with interest @ 9% , per annum from the date of tiling of the claim petition till the date of actual payment. The Tribunal while exoner‘ating the insurer of ‘ the motorcycle, directed the oWner of the motorcycle to pay the amount of compensation to the claimant. ' 3) Shri Gautam Khetrapal and Shri Rakesh Sahu, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.17,788/- only, though the claimant was under treatment at Apollo hospital for sumciently long period on account of the injuries sustained by her in the motor accident. 4) For the reasons best known to the appellant]. claimant, no doctor was examined before the Tribunal to establish the nature of the injuries said to have been sustained by the appellant/ claimant in the motor accident and the fact that those injuries resulted in any permanent disability. t 5) The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor a s l l l l l 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 : After hearing learned counsel for the respondent- claimant who made an attempt to support the ordet’ 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 “- 6 cent. The High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy’s medical certificate was reiected 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.” The Apex Court in a recent dictum in the case of Rajesh Kumar alias-Raju v. Yudhvir Singh and another, reported in (2009) 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 \ L9 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. a Whether the disability t 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 certiticate. It even does not appear that the contentions aised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded o the materials brought on record by the parties. In absence of an contention having en raised in regard to the applicabiiity 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.” 7) In view of the above quotd dicta of the Ape Court in e e x th cases of A.P. STC v. P. Thirupal Reddy (Supra) and Rajesh R Kumar alias Raju v. Yudhvir Singh nd another (Supra),\the a medical certificates produce by the appellant/claimant before the d Tribunal without examining the Doctor who had issued those certificates, cannot be ken int considration for enhancement ta o e of the compensation in the case. at 8) We, therefore, do not find any scope for enhancement of the comnsation awarded b the Tribunal. pe y r . n y be subbu 9) The appeal, therefore, is liable to be dismissed and is hereby dismissed. 10) No order asto costs. R‘ ‘ r Sd/— Sd/_ l Sunil Kumar Chief Justice 1 Sinha JUdge