\^, ^'^ HIGHCOURTOFCHHATTISQARHATBILASPUR DSViSIONBENCH CORAM: HOWBLE SHRI RAJEEVGUPTA,CJ. & HON'BLESHRIRLJHANWAR,J. 'A •••:€ e' ApoelSant CSaimant Respondents Driver Owner insurer Misc Appeal (Cl NQ.IS? of2019 Kumari Seema Dhritiahare, aged about 21 years, D/o Shri PR Dhritlahare, R/o - Qr No.65, Sector - 4, Type - 4, Balco Nagar, Korba. Tehsiiand District - Korba (CG) Versus 1. SukhlaE Rajwade, aged about 32, S/o Shri Ramdas Rajwade, R/o Odagi Naka, Baikunthpur, PS BaJkunthpurj Djstrict Koria (CG) 2. IVlohammad Nurehaciue, S/o Md Abul Haque, R/o Rajdhani Travels Kharsia Naka, Ambikapur District - Surguja (CG) i 3. National Insurance Company, through Branch Manager, Branch Manager - jKosabadi, Korba, Tehsil andDlstrict Korba(CG) Mjscellaneous Appeal under Sectiori 173 of the Motor Vehicles Act. 1988 Present : Shri S.K. Guha, counsei for the appellant. ORDER (15th February, 2010) The following order of the Court was passed by Rajeev ©upta,C.J. Shri S.K. Guha.leamedcounsel fortheappellant is heard on IA No.1/2010,a petition for condonation of the delay in fflmg the appeai. p € 2) On due consideration ofthe submissions of leamedcounsel for the appellant and the grounds taken in the application, we are satisfied that theappellant has succeeded in showing sufficient cause for the delay in filing the appeal. 3) !ANo.1/2010,therefore, is allowed and the delay of 14 days in filingthe appeal is hereby condoned. 4) Shri S.K. Guha, jearned counsel for the appeltant is heard on admission. 5) Appellant Kumari Seema Dhritlahare is seeklng enhancement of the cQmpensation awarded by Second Addlt'ional IVIotor Accident Claims Tribunal, Korba (for short, 'the Tribunal') vide awarddated 24.10.2009, passed in Ciaim Case No.69/2008. 6) As against compensation of Rs.26,00,000/-,claJmed by the appellant/claimant by filing a ctaim petition under Section 166 ofthe Motor Vehicles Act, for the injuries sustained by her in the motor accident on 21.09.2006, the Tribunal awarded a total sum of Rs.2,00,000/- as compensation along with interest @ 9% per annum from the date offiiing ofthe claim petition til! the date of actual payment.. 7) Shri S.K. Guha, learned counsel for the appetlant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.2,00,000/- only, though the appeJlant / claimant sustained multiple serious injuries in the motor accident resulting in permanent disability. 8) Forthe reasons best known to the appellanVclaimant, no doctor was examined before the Tribunal to establish the nature of \^ the injuries said to have been sustained by the appellant/ciaimant in the motor accident and the fact that those injuries resulted in any permanent disability. 9) The question whetherthe medical certiflcate produced bythe ciaimant before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence for the assessment of thecompensation came up for consideratJon before the Apex Court in the case of A.P.SRTC Vs P.Thirupal Reddy reported in (200S) 12 SCC 189, wherein it wasobserved in para6 as under: "6. After hearing learned counsel for the respondent - daimant who inade an attempt to support the order of the High Gburt, we find that there was no justification for the hligh Court to rely on the disabilify certiflcate issued by Dr Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 percent. The Hiah Court committedaross error in overlookina the fact that Dr Sudhakar Reddv's medical certificate was reiected; bv the Tribunal for non-examination of that doctbr. The Tribunal has determined the phvsical disabilitv at 15 oer cent on thebasis ofthe deDosition of Dr KM Mitra and awarded a iust and fair comDensation; The Hiah Court erred in disturbina the same and enhancingthecompensation. Consequently, we allow this appeaS, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-cJaimant is allpwed to withdraw the amount of compensation awarded by the Tribunal, if 'rt has not already been withdrawn." 4 Blt 10) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju 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 years. it is not known as to whether the Civil Surgeon of the hospital treated theappellant. On what basis, such a certificate was issued two years after the accident took place is not known. Theauthor 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 isalso 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 High Court, therefore, proceeded on the materials brought 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." 11) In view of the above quoted tf/cte of the Apex Court, in the cases of A.P.SRTC Vs P.Thirupal Reddy (supra) and Rajesh Kumar alias Raju Vs Yudhvir Singh (supra), the medical certificate and the disabilitv certificate Droduced bv the aDDellant / i'^'^^ ::<%>,r;"" subbu t claimant before the Tribunal withoutexaminino the doctors. who had issued those certificates cannot be taken into consideration for enhancement of the compensation in the case. 12) We, therefore, do not find any scope for enhancement of the compensation awarded bythe Tribunal. 13) The appeal filed by the appellant/claimant for enhancement of the compensation, therefore.is liable to be dismissed and is hereby dismissed summariiy. Sd/- Chief Justice Sd/- R.L. Jhanwar Judge c.