@ V HEGH COURT OF CHHATTE$GARH AT 3ELA$F3UR B§V§$EON BENCH Samm : HQN’BLE $HR£ RAIEEV GUPTA, CJ. 3: §%GN’ELE SHRE Si§ML KUMAR SWHA, J. Mésc. Agipeai Nc‘ 5% of 26% ~§ RE$§3§NEENT$ - $§PL§S£P§T AéPELLAm Sm: subnadra Jaiswai, aged abwt 27 years W16 Parmeshwar, R/o Wiage Nagarda, Distt. Janjgir- Champa, presxgm addféss C.S.E.B. Coiony, Korm (East§ Tah. & mstt. Korba (0.6.) Versus Shyam Sunder Paid aged abeut 23 years, 8/6 Laxmi Prasad Patei rig Kapisauia, Dis?rict-Janjgir~ chgmpa, Present address Imaii Duggu, Korba, Tahsii 8: Disirict Kama {c.G.) 2. Tuisi .‘3rasad $hukéa Sic Kj'ishnanand Shukia, r/o Sitamani Chowk, Korba, Tah. & D§$trict- Korba (0G) The Orientai insurance Company Ltd. Branch Korba, Tahv & DEstt. Korba {c.G‘) . )p £P?E§\L UN§ER SECTION 173 OF THE EMEQR VEHR¢LES AC? Presen‘: : Shri Hv Snarma! ieamed counsei fer ihe appeiiant. Nana for respaadents No. ‘u 8: 2 ’{hough served. Suwakant Mishra, teamed eounsei for responeent N03. Shri Vinay Herit, leemed Senior Counsei with Shri em GRDER {23m Juiyg game; The foliowing order of {he Cam was passed by Regeev Gepte, CJ; * ! @ h Learned counsei for the parties are heard on MOP. No. 7f62/2OG5, a peimon for condonation 0f the deiay in fjiing the abpeak E Z. On due consideration of the submissions of ieameci counsel fer the parties anci the grounds taken in the petition, we are seiiefied trier the appelient has succeeded in snowing sufficieni cegee for the deiay in fiiin’g the appear. 3. MOP. No. 762/2005; therefore, is aiéowed and the deiay in fiiingthe appeai is hereby condoned. 4. Shri H.V. ‘Sharma, teamed counsel for the appeiiant is heard on admission. S, Appeiiant Smt. Subhadra Jeiswai is seeking enhancement of the compensation awarded by the Additionai Motor Accident Ciairns Tribunai, Korba (for short ‘the Tribunai’) vide award dated 28.92.2004, passed in Ciaim Case No.12612002. 6. As against the compensation of Rs.13,25,0€)01- ciaimed by the appeiiant/ ciaimant by fiiing a oiaim petition under Section 166 of the iViotor‘Vehioies Act, for the injuries sustairjed by her in the motor accident on 26.05.2002, the Tribunai awarded a totai sum of Rs.28,043l— as compensation aiong with interest @ 9% per annum ‘ from the date of filing of the ciaim petition tiii the date of actuai payment. ?. Shri H.V. Sharma, learned counsel for the appeiiant vehemently argued that the Tribunai has erred in awarding iow compensation oi Rs.28.043/. only though the appellant/ ciaimant ~.,V.\ :t ?fr sustained mutiipie sericus injuries inciuding fracture3 in éhe motor 8 r adcia‘ent which resulted in disability to the extent of 25%. & For the reasons best known to the appeiiant/ daimant no ii 'otor was examined before the Tribune! to estabiish the nature of ihfe injuries said to have been sustained by the appeiiant/ ciaimani i in the motor accident and the fact that those injuries resuited in any 1 permanent disabiiity. 9. The question Whether the medical certificate produced by the ciaimant before the Tribunat 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 oi AP. $RTC vs. P. Thtrupai Resdy, reported in {2%5} t2 SCC 1%, wherein it was observed in para 6 as under : . i r i “6. After hearing teamed counsei for the rescondent-oiaimant who made an attempt to support the order oi the High Court; we ttnd that there was no justification for the Htgh Court to rely on the disabiiity certificate issued by Dr, $udhakar Raddy and enhance the compensation by treating the injury as permanent disabtiity to be 45 per cent. The Hiah Coart committed gross error in overtookino the fact that Dr. Sudhakar Reddv’s medtcai certiticate was retested by the Tribunai tor non-examination oi that doctor. The Trtbunai has determined the physical disabiiity at 15 per cent err the basis of the degosition of Dr. KM. Mitre and warded a :tisi ai’id fat? CGf‘i‘i eneatiun. nas§l4§m Th iiiE rii U k a "ii Court erred in disturbind the same and enhanciho the compensation. Consequentiy, we allow this appeai, set aside the impugned order and restore the award of the Ciairns Tribuhai. The reseendeht- ciaimant is aliowed to withdraw the amount of compensation awarded by the Tribunai, if it has not aiready been withdrawn.” 4/7” 1C The Apex Court in a recentdictum in the case of Ragesh Khmm aiias Raju vs: YuzihvEr Singh and another: repo‘l'ted in ($08} 7’ $66,, 3&5, reiierated the same v€ew with the following i V , . oeservatione m para 11 : i i \ " M. The certificate in queetioh in this case was obtained after two years. it is not known as to whether the Civu Surgeon of the hospitai treated the appettent. On what beets, such e certifteate was issued two yeats after the accident took ptace is not known. "{he author of the said certificate had not been examined. Uniess the author of the certificate examined himself it was not admissible in evidence. Whether the dieability at 6Q% was catcuiated 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 Tribunai or the High Court. The Tribunai as aiso the High Courti therefore, proceeded on the materiats brought on record by the parties. in absence of any contention having been raised th regard to the appiicabiiity of the Workmen’s Compensation Act which, in our ootnton, ex facts has no application, the same, in our opinion, cannot be permitted to be raised for the first time.” 11. in viewof the above quoted dicta of the Apex Court in the cases of AP. SRTC vs. P. Thirupai Ready (Supra) and Rajesh Kumar aiias Raju vs. Yudh‘eir Sihgh and another (Supra), the medicai certificate and the disabiiity certificate produced by the appetlanti ctaimant before the Tribunal Without examining the Doctors who had issuedthose certificates, cannot be taken into consideration for enhancement of the compensation awarded by the Tribunai. i2 We, themfore, d0 not find any scope for enhancement of the canHpansation awarded by ihe Tribunal. . g ’13.; The appeai f§§ed‘by the appeimntl ciaimant for enhancement of the compensation, therefore, is iiable te be dism§ssed and" is ner‘eby msmlssed summanly. ‘ e Sunil Kumar Sinhgrrrm — Judge i ‘ Sdl- - Chief Justice, sd/— I