IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR ^ M.A.NO.'2-'3H/2001 APPELLANT CLAIMANT RESPONDENTS Kumari Umang @ Chhoti aged about 3 years, through her natural guardian, father - Vijay Goyal, son of Dhani Ram Goyal, Caste- Agrawal, ,-e<!;resident Mahuapali, Kharsia Boad, Distt. Raigarh (C.G.) VERSUS 1. 2.r Mohd Ashraf, son of Hazee Mohd. Hanif Quraishi, residence Behind Civil Line, Kharsia, Distt. Raigarh (C.G.) (OWNER) Horilal son of Harilal, resident of Kharsia, Distt. Raigarh (Chhattisgarh) (DRIVER) 3-<. United India Insurance Co. (-- /^ Limited, Branch Office - Raigarh (Chhattisgarh) (INSURER) ^' f"' MISCELLANEOUS APPEAL UNDER SECTION 173 OFTHE MOTOR VEHICLES ACT, 1988 FOR ENHANCEMENT OF AMOUNT OF AWARD /' HIGH COURT OF CHHATTISGARH AT BILASPUR DIVIS10N BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ. HON'BLE SHR! RMMGNATH CHANDRAKAR J. Claimant Misc. Appeal No. 234 of 2005 Kumari Umang @ Chhoti aged about 3 years, through her natural guardian, father Vijay Goyal, son of Dhani Ram Goyai, Caste Agrawal, resident Mahuapali, Road, Kharsia, Distt. Raigarh (C.G.) Versys 1. Mohd. Ashraf, son of Hazee Mohd. Hanif Quraishi, residence behind Civil Line, Khareia, distt. Raigarh (C.G.) (Owner) 2. Horilal son of Harilal, resident of Kharsia, distt. Raigarh (Chhattisgarh) (Driver) 3. United Insurance Co. Limited, Branch Office, Raigarh (Chhattisgarh) (Insurer) Memorandum ofaopeal under Section 173 ofthe Motor Vehldes Act. 19S8 Shri A.N. Bhakta and Shri Tarun Dadsena, learned counse! for the appeliant. Shri Dashrath Gupta and Shri Sanjay Gupta, learned counsei for respondent No.3. st The foilowing order of the Court was passed by Rajeev Gupta, C.J. This is claimant's appeal for enhancement of the compensation awarded bv the Motor Accident Claims Tribunal, 'c^. Raigarh, (for short 'the Tribunal') vide award dated 20.10.2004, passed in Ctaim Case No.10/2002. 2) As against the compensation of Rs.5,00,000/- claimed by appettant/claimant Kumari Umang @ Chhoti, a giri aged about 3 years, by flling a claim petition though her father Vijay Goyal for the injuries sustained by her in the motor accident on 28.08.2001, the Tribunat awarded a total sum of Rs.90,000/- as compensation to the claimant along with interest @ 9% per annum from the date of filing ofthe claim petition tiil the date of actual payment. 3) Shri A.N. Bhakta and Shri Tarun Dadsena, teamed counsel for the appellant submitted that the Tribunal has erred in awarding low compensation of Rs.90,000/- only though the claimant sustained multiple serious injuries including fractures in the motor accident. 4) Shri Dashrath Gupta and Shri Sanjay Gupta, learned counsel for respondent No.3 United India Insurance Company Limited, on the other hand, supported the award and contended that the compensation of Rs.90,000/- awarded by the Tribunat is just and proper compensation in the facts and circumstances of the present case. 5) Before the Tribunal the claimant's father Vijay Goyal examined himself alone as AW1 in support of the claim. Though the claim petttion remained pending at the stage of recording the evidence of the claimant for a period of about 1 % years, for the reasons best known to the claimant's father Vijay Goyal, no -<• doctor was examined before the Tribunal to establish the nature of the injuries sustained by the clajmant giri in the motor accident and the fact that those injuries resulted in any permanent disability. 6) The question whether the medical certificate produced by the claimant before the Tribunal vnthout 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 counset 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- examinatiorLOf that doctor. The Tribunal has determined the phvsical disabilitv at 15 per cent on the basis of the deDosjtion of Dr. K.M. Mitra and awarded a iust and fair compensation. The Hiah Court erred in disturbina the same and enhancina 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 alreadv been withdrawn." \.''^s.\ 7) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju v. 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 the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of thesaid certificate hadjiot been examjned. Unless the aythpr 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 certifteate. tt even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as aiso 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 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." 8) tn view of the above quoted dicta of the Apex Gourt in the cases of A.P. SRTC v. P. Thirupal Reddy (Supra) and Rajesh Kumar alias Raju v. Yudhvir Singh and another (Supra), the medical certificate and the disability certificate produced by the appetlanVctaimant before the Tribunal without examining the ^;'-^!%? '^ Y J?J subbu Doctors who had issued those certificates, 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 Tribunat. 10) The appeal filed by the appeltant/ctaimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. 11) No order as to costs. Sd/- Chief Justice