^ ^. HIGH COURT OF CHHATTIS^ARH AT BILASPUR MISC. APPEAL (O N0. 995 OF 2009 ^PPELLANTS 1. Jhumuklal ©Chumuklal, S/o Shri [ciaimantsl Motiram, Aged about 41 Yrs. 2. Tushar Sahu, S/o Shri Jhumuklol @ Chumukiai, Aged about 13 Yrs., The appelJont No, 2 m*nor besng represented through his father appeilant no. 1, Jhumukla! © Chumukial, Both the above are R/o Village-Barbospur, P.S. Tumgaon, Tahsil & Distt. Mahasamund RESPONDENTS 1. Versus AAoolchand Vishwakarma, Age 37 Yrs. S/o Shri bahrath VishwGKarma, ft/o Village-Kanesar, P,S. Chura, Distt Rdpur (C.G.) [Driver of Truck No.C.©.04/JA/29913 2. Satpal Singh, Age 28 Yrs,, S/o Niranjan Singh Chawla, R/o Station Road, Mahasamund, Tahsil <& Distt Mahasamund (C,(5.) [Owner of Truck No.C.e.04/JA/2991] 3, The ICICI Lombard Insurance Com, Ltd<, Branch Office at Lai Sanga Complex, (5,E. Road, Raipur, Distt-. Raipur (C.S.) [Insurance Com, of Truck No.C.©.04/JA/2991] MEMO OF MISC. APPE^L UNDER SECTION 173 OF THE MOTOR VEHICLE -4CT. (Sinale BeneK: Hon'bl®Mr. N.K. ^oarwd. J.) Present : Shri J.A. Lohani, counsel for the appellants. '^ ORAL ORDER (Passed on 22nd day of July, 2009) Heard on I,A. No. 01, applicatjon for condonation of detay in filing the appeal. 2. On due consideration, I am satisfied that the appellant has succeeded in expbining the cause of delay of 21 days in filing the appcG!. Therefore, the application is aliowed and the delay in filing the oppeol is condoned, 3. The instant oppeal is directed against the award dated 02-03-2009 seeking ©nhancement of compensation passed by Principal Motor Accidents Claims Tribunal (for short lth@ Tribunai), Mahasamund in Claim Case No.143/2008 whereby and whereunder an amount of Rs.94,94,460/" has been awarded as compensation towards injuries sustajned by both the appeitants, 4. Bn'ef facts of the coise are that on 08-02-2008 when s^ the oppellant was returning to his house on his motorcycle along with his son as piilion rider, the offending vehicle CG 04 JA/2991 came behind and dashed 1+ie motorcycle and as a result of which both the appellants sustdned injuries, 5. The appellants filed Claim Petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') claiming compensation to the tune of Rs.2,10,000/- against 1+»e owner, driver and insurer of the offending vehicle. 6. The learned Tribunal on appreciation of evidence and material ayaiiabie on record, passed the oward and awarded compensation of Rs.94,640/- for the injuries sustained by the appellants. 7, Shri Lohani, learned counsel for the appeltants submits that although Doctor hos not been examined to prove the injuries sustained in the accident but looking to the report of citi-scan fiied in the case, compensation awarded by the learned Tribunal is shockingly of lower side. 8. I have heard learned counsel for the appelbnts and perused the record- 9. For the reasons best known to the appellants, they ore not examined the doctor to proye the injuries sustained by them< 10. The question whether medical certificate produced by the claimant before the Tribuna! 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 ^,/? 5RTC ^ P. Thirupal Reddy. reported in (2005) 12 SCC189, 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 disabiiity to be 45 per cent. The HiQh Cpurt committed qross error in overlookinq the fact thot br- Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. TTie Tribunal has determined the Dhysical disability at 15 per cent on the basis of the deDosition of br, K-M, Mitra and .^' awarded a Just and fair compensation, The Hiqh Court erred in disturbinq the same and enhancinq the compensation, Consequently, we aliow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-ciaimant is ailowed 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 Roju v. Yudhvir Singh and eirwther. 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 disabiiity at 60% was caicuiated 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 Tribuna! as also the Ht'gh Court , therefore, proceeded on the materials brought on record by fne 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." 12. The Division Bench of this High Court in case of Pradeep Kumar Safiu vs. Sarupa Sahu S another vide order dated 31st AAarch, 2009 placing its reliance upon the dicta of Supreme Court in the cases referred above held in para 8 as under: "8. In view of the above quoted dicta of the Apex Court in -Hie cases oi A.P. ^TC v. P. Thirupal Reddy (supra) ancl Rajesh Kumar alias Raju v. Yudhvir Singh and another (supra), the certificate produced before the / ^^~%. ,^^. "'^ ^^.^' Tribunal in the absence of examination of the Doctor issuing the certificate is neither admissible in evidence nor can be taken into consideration as substantiye evidence for assessment of the compensation in the case/' 13. For the foregoing reasons, I do not find any scope for enhancement of the compensation awarded by the Tribunal. 14. The appeal filed by the appellants/claimcnts for enhancement of the compensation, therefore, is liable to b@ dismissed and is hereby dismissed. ______ 15. No order as to costs. N.K. Judge Kvr