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. 678 of 2002 \ [I MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. Present: Shri A.L. Singraul, counsel for the appellant. Shri A.K. Athaley, counsel for respondent No.3. ORDER .(o7”' April, 2011) Appellant Ku. Preksha Sethia, aged about 12 Claimant years minor d/o Prem Kumar Sethia through legal guardian, father Promod Kumar Sethia, aged about 38 years, s/o Karanidin Sethia, r/o 97, Preksha Kutir, Hanuman Nagar, Kalibadi Chowk, Raipur, Tahsil & district Raipur C.G. VERSUS Respondents 1. Purani Dadsena, aged 42 years, s/o Non-applicants Ballu Kalar (Dadsena) occupation Truck Tanker Driver, r/o Pithora, P.S. Pithora, dist. Mahasamund C.G. 2. Ramdhan Agrawal, s/o late Radhakishan Agrawal, occupation Truck Tanker Owner, R/o Main Road, Pithora, district Mahasamund. 3. The Oriental Insurance Company Ltd. through Divisional Manager, Divisional Office No.1, Madina Manzil Kutchheri Chowk, Jail Road, Raipur C.G. The following order of the Court was passed by Rajeev Gupta, C.J. Appellant — Ku. Preksha Sethia is seeking enhancement of the compensation awarded by the Second Additional Motor Accident Claims Tribunal, Raipur (for short ‘the Tribunal’) vide award dated 10.05.2002, passed in Claim Case No.152/2001. 2) As against‘the compensation of Rs.25,00,000/— claimed by the appellant! claimant by filing a claim petition under Section 166 of the Motor Vehicles Act through her father Pramod Kumar Sethia, for the injuries sustained by her in the motor accident on 25.05.2001, the Tribunal awarded a total sum of Rs.82,970/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 3) The Tribunal on a close scrutiny of the entire evidence led before it held that claimant Ku. Preksha Sethia sustained multiple serious injuries in the motor accident on 25.05.2001; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Truck-Tanker bearing registration No. C.l.S.9220; as the insurance Policy was obtained by the owner of the Truck- Tanker after the accident, the insurance Company was not liable to pay compensation to the claimant and the liability in that behalf was that of the owner and driver of the TruCk-Tanker. 4) The Tribunal considering the number and nature of the injuries proved to have been sustained by the claimant in the motor accident and the amount proved to have been spent on treatment, i i r i awarded Rs.47,970/— towards medical expenses; Rs.15,000/— towards loss in the future earning capacity; Rs.10,000/- towards future treatment; and Rs.10,000/- for pain and suffering. The Tribunal, thus, awarded a total sum of Rs.82,970/— as compensation to the claimant for the injuries sustained by her in the . motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs‘82,970/- @ 6% per annum from the date of filing of the claim petition till the date of actual payment. The Tribunal while exonerating the insurer of the Truck—Tanker from its liability to pay compensation to the claimant, directed the owner and driver of the Truck-Tanker to pay the above amount of compensation and interest thereon to the claimant. 5) Shri A.L. Singraui, learned counsel for the appellant vehemently argued that the Tribunal has erred in exonerating the insurer of the Truck—Tanker from its liability to pay the compensation to the claimant; and in awarding low compensation of Rs.82,970/- only. 6) Shri A.K. Athaley, leamed counsel for respondent No.3, the Oriental Insurance Company Limited, the insurer of the Truck— Tanker, on the other hand, supported the award and contended that as there was no Insurance Policy effective at the time of the accident, the Tribunal has rightly exonerated the insurer of the Truck-Tanker. 7) So far as the finding recorded by the Tribunal leading to exoneration of the insurer of the Truck—Tanker is concerned, we gather from the Insurance Policy Ex.D/2 that the same was made effective from 16.00 hrs on 25.05.2001 and was valid till midnight ob”24.05.2002. We further gather from the Insurance Policy for the previous year Ex.D/1 that the said policy was issued at 13.15 hrs on 25.05.2000 and was valid till midnight of 24.05.2001. Thus, it is apparent from the contents of both the policies that from the midnight of 24.05.2001 till 16.00 hrs on 25.05.2001 there was no insurance coverage of the offending vehicle. As the time of issuance of the policy and the insurance coverage has specifically been mentioned in the insurance policy Ex.D/2, we do not find any substance in the submission of learned counsel for the appellant that the Tribunal has erred in exonerating the insurer of the Truck- Tanker from its liability to pay compensation to the claimant. In our opinion, the Tribunal has rightly exonerated the insurer of the Truck-Tanker and has rightly held the owner and driver of the Truck-Tanker liable to pay compensation to the claimant. 8) Now, we shall examine as to whether the compensation of Rs.82,970/— awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case. 9) Before the Tribunal, the claimant examined as many as two witnesses namely AW-1 Pramod Kumar Sethia and AW—2 Bhupendra Kumar in support of the claim petition. For the reasons best known to the claimant and her father, no doctor was examined before the Tribunal to establish the nature of the injuries said to est-.5 10) r; have been sustained by the claimant in the motor accident and the fact that those injuries resulted in any permanent disability. 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. fter 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 disabiiity certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disabiiity to be 45 per cent. The Hidh Court committed dross error in overlookinq the fact that Dr. Sudhakar Reddy’s medical certificate was reiected bv the Tribunal for non—examination of that doctor. The Tribunal has determined the Dhvsical disabilitv at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a iust 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.” 11) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in p A (2008) 7 SCC 305, reiterated the same View with the following observations in para 11 : “1 1. 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 piace 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 High Court, therefore, proceeded on the materials brOught on record by the parties. ~ln 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.” 12) 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. Q 13) For the foregoing reasons, we do not find any scope for enhancement of the compensation awarded by the Tribunal. 14) The appeal filed by the appellant/ claimant for enhancement subbu of the compensation, therefore, is liable to be dismissed and is hereby dismissed. 15) No order as to costs. . sd/_ ‘ Sdl— Sunil Kumar Sinha Chief Justice Judge