HH3H COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLESHRIRAJEEVGUFTA,C.J. HON'BLE SHRI RANGNATH CHANDRAKAR.J Appellants Claimants Resoondents Non-applicants •^ M.A.(ClNo.127Sof2007 1. Chinta Ram Dhhnar, Age 25 years, S/o Samaru Ram Dhimar 2. Smt Purnima Dhimar, Age 24 years W/o Chinta Ram Dhimar Both the above are R/o \flllage - Gudrupara, PS Tahsil & Distt Mahasamund (CG) Versus 1. Shahjad Khan, Age - 24 years, S/o Asarpur Khan, R/o New Basti Badnera, PS Badnera, Distt Amravati (MH) (Driver of the Truck No. CG 04^0/3835) 2 Abdul Quadir, S/o Abdul Nabi, R/o Habib Nagar, Ward No.02, PS Belgaon Road, Amravati - (Maharashtra) (Owner of the Truck No. CG 04/ZC/3835) 3 The United India Insurance Com. Ltd., Through Divisional Office, Branch Offtoe at Jail Road, Raipur Distt Ratpur (CG) (Insurance Company of the Truck No. CGO^ZC/3835) Memo of Misc Appeal u/s173 of the Motor Vehicles Act Present : Shri Jameel Akhtar Lohani, counsel forthe appellants. 1 i g f> QRDER (6m April, 2010) The following order of the Court was passed by Rajeev Gupta, C.J. Shri Jameel Akhtar Lohani, leamed counsel for the appeltants is heard on admission. 2) The appellants are seeking enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Mahasamund (for short the Tribunal') vlde award dated 23.08.2007, passed in Claim Case No. 169/2006. 3) As against the compensatlon of Rs.6,10,000/-, ctaimed by the appetlants/claimants by filing a claim petition under Section 1 of the Motor Vehicles Act for the death of their son Kamlesh and the injuries sustained by appetlant No.1 Chinta Ram Dhimar in the motor accident on 28.11 .2006, the Tribunal awarcted a total sum of Rs.70,000/- (Rs.65,0)0/- for the death of Kamlesh + Rs.5,0£X)/-for the injuries to appeltant No.1 Chinta Ram Dhimar) as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 4) Shri Jameel Akhtar Lohani, leamed counsel for the appellants vehemently argued that the Tribunal has erred in awarding low compensation of Rs.^,000/- for the death of the appellants' son Kamlesh and Rs.5,000/- for the injuries sustained by appellant No.1 Chlnta Ram Dhimar in the motor accident. 5) So far as the compensation of Rs.65,000/- awarded by the Tribunal forjhe death of the appellants' son Kamtesh, who was ./'^^--^ S ;K • \ i :2^' ~~<1 aged'about 2 years only, Is concemed, we do not flnd any scope for enhancement in view of the dictum of the Apex Court in the case of Oriental Insurance Co. Ltd. V. Syed Ibrahim and cthers reported in 2007 (4) T.A.C. 385 (S.C.), wherein compensatiOTi of Rs.51,500/- was found to be just and proper compensation for the death of a child aged about 7 years in the motor accidait. 6) So far as the compensatlon of Rs.5,000/- for the injuries sustained by appetlant No.1 Chinta Ram Dhimar ts coniamed, admittedly, no doctor was examined before the Tribunal to establish the nature of the injuries said to have been sustained by appellant Chinta Ram Dhimar and the fact that those Injurtes resulted in any permanent dlsability. 7) The question whether the medlcal certlficate produced by the claimant before the Tribunal wtthout examining the Doctor who tssued 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 Vs P. Thirupal Reddy reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under: "6. After hearing leamed counsel for the respondent - ctaimant who made an attempt to support the order of the High Court, we find that there was no justification for the High Court to rety on the di^billty certifieate issued by Dr Sudhakar Reddy and enhance the compen^tion by treating the injury as permanent disability to be 45 percent. The Hiqh Court committed qross error in overtookina the fact that Dr Sudhalar Reddv's medical certificate was relected bv the Tribunal for non-examination of that doctor. The Tribimal has determined the phvsical disabllitv at 15per cent on the basis of the deposiaon of Dr KM Mitra and awarded a iust and fair compensation. The l-1iah Court erred in disturbina the same and enhancinq the compensation. Consequently, we allow this appeal, set aslde the tmpugned order and restore the award of the Clalms Tribunal. The respondent-ctaimant is altowed to wthdraw the amount of compensation awardaj by the Tribunal, if it has not already been withdrawn." 8) The Apex Court in a recent dictum in the case of Itejesh Kumar alias Raju Vs Yudhvlr Singh and anotter, reportai in (2008) 7 SCC 305, relterated the same view writh the following observations in para 11: "11. The certiflcate in question in this case was obtained after two years. It Is not known as to whether the Civll 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 certiflcate examined himself. it was not admissible in evidence. Whetherthe disability at 60% was cateulated 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 certtficate. It even does not appear that the contentions raised before us had either toeen raised before the Tribunal or the High Court. The 5 Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any conterrtion having been raised in regard to the applicability of the Workmen's Compensation Act whldi, in our opinion, ex facie has no appltoation, the same, in our opinion, cannot be permitted to be raised for theflrsttime." 9) In view of the above quoted dicta of the Apex Court in the cases of A.P.SRTC Vs P. Thiropal Reddy (supra) Rajesh Kumar atias Raju Vs Yudhvir Singh and another (supra), the medical certificate produced by the appeltanVclaimant before the Tribunal without examintng the Doctor who had issued the sakl certiflcate, cannot be taken into consideratlon for enhancement of the compensation In the case. 10) For the foregoing re^ons, we do not flnd any scope for enhancement ofthe compensation awarded by the Tribunal either for the death of appetlants' son Kamlesh or for the injuries of appellant No.1 Chinta Ram Dhimar in the motor acddent. 11) The appeat, filed by the appellants/claimants for enhancement of the compen^tion, therefbre, is tiable to be dismissed and is hereby dismissed summarily. Sd/- Chief Justice subbu Sd/- R.N. Chandrakar Judge