^NNr. HIGH COURT OF CHHATTISGARH AT BILASPUR Coram : Hon'ble Shri Sunil Kumar Sinha and Hon'ble Shri R. L. Jhanwar, JJ. APPELLANT APPyCANT RESPONDENTS NON-APPLICANTS Misc. ADDeaf;No. 1478 of 2009 Kousilya Bai wife of Shri Rakesh, aged about 34 years, House-wife, R/o village Kanhera Tahsil Saja, Distt. Durg (C.G.) Versus 1. Smt. Durmita Bharati, W/o Shri Lekhram Bharati, aged about 35 years, Occupation Vehicle owner, R/o Durg Road, in front of house of Poll Advocate, Bemetara, Dist. Durg (C.G.) 2. Ramkishun Kewat son of Samuntari Kewat, aged 49 years occupation : Driver, R/o village Adarsha Nagar, Kawardha, P.S./Tah./Distt. Kawardha (C.G.)... Driver 3. Branch Manager, through New India Insurance Co. Ltd. Branch Thakkar Chamber, Power House, Bhitai, Distt. Durg ff I. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACCIDENT ACT Appearance: Shri Ram Kumar Tiwari, counsel for the appellant/applicant ORAL ORDER (24.11.2009) Per Sunil Kumar Sinha, J. Heard. 2. Appellant - Kousilya Bai has filed this appeal under Section 173 of the Motor Vehicles Act for enhancement of amount of compensation awarded in Claim Case No. 34/2008 by the Additional Motor Accidents Claims Tribunal (F.T.C.), Bemetara, District Durg (C.G.) on 08.10.2008 3. The appellant/claimant claimed compensation of Rs.3,70,000/- on account of personal injuries sustained by her in the motor accident on 01.01.2008 by filing a claim petition under Section 166 of the Motor Vehicles Act. The appellant claimed that she received grievous injuries and she also sustained fracture. The Tribunal believing on the MLC report M.A.C. No. 1478/2007 ^ (Ex.P.5) and other documents relating to the treatment (Ex.P.Sto Ex.P.13) held that the appellant had sustained fracture in the motor accident. The Tribunal on its own assessment awarded Rs.8,000/- for the fracture sustained, Rs.2000/- towards pain and sufferings, Rs. 1,0007- towards special diet, Rs.2500/- towards loss of future earning for three months and Rs.225/- towards bills of medicine to the appellant/claimant. Thus, the Tribunal awarded a sum of Rs.13,725/- to the appellant as compensation on account of personal injuries sustained by her in the motor accident. The Tribunal also awarded interest at the rate of 6% per annum from the date offiling ofthe claim petition till its realisation. 4. Mr. Ram Kumar Tiwari, learned counsel appearing on behalf of the appellant argued that a low compensation has been awarded to the claimant. Therefore, it may be suitably enhanced. 5. Though the appellant examined herself as A.W.1 and her husband Rakesh Kumar Kurrey (A.W.2) but no doctor was examined to prove the injuries or the documents relating to the injuries sustained by the appellant and that those injuries caused permanent disability to the appellant. 6. 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. S.R.T.C. v. P. Thirupal JSecfof^-reported in ^2005) 12 SCC 189, wherein it was observed in para 6 as under: "6. After 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 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-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 compensation. The Hiah Court erred in M.A.C. No. 1478/2007 ^ 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 already been withdrawn." 7. The Apex Court in a recent dictum in the case of Raiesh Kumar alias Raiu v. Yudhvir Sinah 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 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. 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." 8. As we have already mentioned, no Doctor was examined before the Tribunal to prove the fact that the appellanVclaimant either sustained fracture or suffered any permanent disability on account of the injuries sustained by her. 9. In view of the above quoted dicta of the Apex Court inthe cases of A.P. S.R.T.C v. P. Thirupal Reddv and Raiesh Kumar alias Raiu v. Yudhvir Sinah 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 ,.4-t/-/]^ ,^7/]^ M.A.C. No. 1478/2007 can be taken into consideration as substantive evidence for assessment of the compensation in the case. \MMI^ 10. For the foregoing reasons, we do not find any scope for enhancement of the compensation awarded by the Tribunal. 11. The appeal filed by the appellanVclaimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. 12. No order as to costs. Sd/- Sunii Kumar Sinha Judge Sd/- R.L. Jhanwar Judge