HIGH COURT OF GHHATTISGARH ATBU.ASPUR M.A.(Cl N0.1383 OF 2009 D.B.: HON'BLE SHRI JUSTICE SUNIL KUMAR SINHA & HON'BLE SHRI JUSTICER.N. CHANDRAKAR^ APPELLANT RESPONDENTS 1 Smt. Pushpa Devi W/o Jasraj, Caste Chopra, R/o Amapara, Dhamtari, District Dhamtari (C.G.) Versus Shailendra Jain, S/o Jasraj Jain, aged about 35 years, R/o Sadar Bazar, Dhamtari, Tahsil and District Dhamtari(C.G.) Jasraj Jain, S/o Late Kanhaiya Lal Jain, aged about 60 years, Sadar Bazar, Dhamtari, District Dhamtari (C.G.) Branch Manager, The Oriental Insurance Company Limited, Balak Chowk, Behind Amar Tatkies, Dhamtari, Tahsil and District Dhamtari (C.G.) APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT Appearance: Shri Sharad Kadam,Counsel forthe appellant. ORAL ORDER (01.12.2009) The following order of the Court was passed by Sunil KumarSinha. J: • Heard. Being aggrieved with the award ctated 27.08.K)09, passed in Claim Case No.63/2007 by the Additional Motor Accident Claims Tribunal (FTC), Dhamtari, District Dhamtari (C.G.), the appellant/claimant has filed this appeal. M.A.tC) N0.1383 OF 2009 (JP The appellant/claimant filed a claim petition under Section 166 of the Motor Vehicles Act, claiming compensation of Rs.8,50,000/- on account of personal injuries sustained by her in the motor accident on 10.04.2006.The appellant claimed that she sustained multiple injuries in the said accident and was admitted in the hospital and she also sustained permanent dlsability. The Tribunal held that the accident occurred on account of rash and negligent driving of the motorcycle by the son of the appellant, on lich, the appellant was travelling as a pillion rider. The motorcycle was registered on the name of the husband of the appellant. Since no extra premium was paid by the owner for covering the risk of piltion rider, therefore, the insurer of the motorcycle was exonerated and the liability was fastened on the owner and driver ofthe motorcycle. Learned counsel appearing on behalf of the appellant argues that the Insurance Company has wrongly been exonerated. He also argues that a low amount of compensation has been awarded to the appellant. As far as exonerating the Insurance Company is concerned, the Tribunal has observed in para 13 of the award that the insurer had taken premium of Rs.491/- on account of damage to vehicle, Rs.160/- was taken as basic liability and Rs.50/- was taken for personal accident of the owner cum driver and the witness concemed very specificatly deposed that no extra premium was taken covering the risk of the pillion rider. We find that the insurance documents fited as Ex.D/3 and Ex.D/4 also reveat and proofthe above tectual position. In the facts and circumstances, when no extra premium was taken covering the risk of the pillion rider, the Tribunal'has rightly held that the Insurance Company would not be responsible for payment of compensation in this matter. So far as quantum of compensation is concerned, it reveate from para 11 of the award that a sum of Rs.22,352/- has been awarded on account of expenses incurred in treatment of the appellant. The appellant was doing embroidery work and she could not perform her work for about 2 months, therefore, the Tribunal has ^as's^ac-,^ •/y^ tf 1 w"'^g, j V.:. ^!" f^ ''•if^^f' M.A.fCt N0.1383 OF 2009 awarded Rs.6000/- on account of loss of earnlng for 2 months, Rs.5000/- has been awarded on account of pain and sufferings, Rs.1000/- has been awarded for special diet and Rs.1000/- has been awarded for conveyance. The Tribunal, thus, awarded a total sum of Rs.35,352/- to the appellant for the personal injuries sustained by her in the motor accident. Jhe Tribunal also awarded inter^t @ 6% per annum from thedate of filing ofthe claim petition till its realization. Though the appellant/claimant contended that she sustained lultipte serious injuries and suffered permanent disability in the motor accident, but no Doctor was examined by her in support of the said contention. 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. Thimial RetMv. reported in f2005) 12 SCC 189, wherein it was observed in para 6 as under: "6. After hearing leamed counsel Tor the respondent-claimant who made an attempt to support the order of the High Court, we find that there was no justification Tor 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 High Court committed aross error in overlookina the fact that Dr. Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the phvsical disabilitv at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a iust and fair comDensation. The Hiah Court erred in disturbina the same and enhancina the compensation. Consequently, we altow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is altowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn." The Apex Court in a recent dteitum in the case of Ra/esft Kumar alias Raiu v. Yudhvlr Sinah and another. reported in {2008) 81 4 M.A.fCl N0.1383 OF 2009 7 SCC 305. reiterated the same view with the following observations in para 11 : "11. The certiTicate 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 knowri. The author of the said certificate had not been examined. Unless the author of the certificate examined himself. it was not admissibte in evidence. Whether the disability at 60% was calcutated 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 materiats 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." As we have already mentioned, no Doctor was examined before the Tribunal to prove the fact that the appellanfclaimant either sustained fracture or suffered any permanent disability on account of 'the injuries sustained by her. In view of the above quoted dicta of the Apex Court in the cases ofA.P. SRTC v. P. ThlivoalReddytSwra} and Rafesh Kumarallas Raiu v. Yudhvlr Slnah and another (Supra), the certificates produced before the Tribunal in absence of examination of the Doctor issuing the certificate were neither admissible in evidence nor can be taken into consideration as substantive evidence for assessment of the compensation in the case. For the foregoing reasons, we do not find' any scope for ^enhancement of the compensation awarded by the Trjbunal. M.A.tCl N0.1383 OF 2009 The appeal filed by the appellant/claimant for enhancement of the compensation and fbcing the liabillty on Insurance Company, therefore, is liable to be dismissed and is hereby dismtssed. No order as to costs. Sunil Kumar Sinha Judge Sd/- Rangnath Chandrakar Judge shyna ^-