•^' ^ ";^. .,,^'^ ; ^i^^l IN»11».. HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ. HON'BLE SHRI SUNIL KUMAR SINHA, J. M.A.(C)No. 542 of 2009 APPELLANT CLAIMANT RESPONDENTS NON-APPLICANTS Versus 1. Ramprasad Nandeshwar, S/o Mehtar Nandeshwar, Aged about 40 years, R/o, Gaurinagar, Rajnandgaon (C.G.) Pusauram Sahu, S/o Dhanushram Sahu, Aged about 65 years, R/o Netan Chowk, Sahupara, Bhilai - 3, District Durg (C.G.) The Manager, United India Insurance Company Limited, Tara Complex, G.E. Road, Bhilai, District Durg (C.G.) Branch kamthiline, Rajnandgaon. Kartik Ram kunjam, S/o Sonau Ram Kunjan, R/o VJllage Kektitola, P.S. & Tahsil - Chowki, District Rajnandgaon (C.G.) APPEAL UNDER SECTiON 173 OF MOTOR VEHICLE ACT. 1988 2. 3. (Insurer of the Vehicie) Present: Shri Anand Kumar Tiwari, learned counsel for the appeilant. O RD E R (21st April, 2009) The foilowing order of the Court was passed by Rajeev Gupta, CJ. By allowing I.A.No.02/2009, the typed copy of the award ^ed along with this application is taken on record. -:"^., i 1 ^ '^--y1 ^* Shri Anand Kumar Tiwari, learned counsel for the appellant is heard on I.A.No.01/2009, an application for condonation of the delay in filing the appeal. 2. On due consideration, we are satisfied that the appellant has succeeded in showing sufficient cause for the delay in filing theappeal. 3. I.A.No.01/2009, therefore, is atlowed and the delay in filing the appeal is hereby condoned. 4. Learned counsel for the appellant is heard on admisston. 5. Appellant Ramprasad Nandeshwar is seeking enhancement of the compensation awarded -by the Additional MotorAccidents Claims Tribunal (FTC), Rajnandgaon (for short 'the Tribunal') vide award dated 19.02.2008, passed in claim case No. 73/2007. 6. As against the compensation of Rs.6,52,173.86 claimed by the appellant/ claimant by filing a claim petition under Section 166 ofthe Motor Vehides Act, for the injuries sustained by him in the motor accident on 09.09.2005, the Tribunal awarded a total sum of Rs.55,700/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 7. Shri Anand Kumar Tiwari, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.55,700/- only, though the appellant/claimant sustained multiple serious injuries and fractures in the motor accident. />^'y^. ^] V^'!^ ^^' ^ 8. For the reasons best known the appetiant/ claimant, no Doctor was examined before the Tribunal to establish the nature of the injuries said to have been sustained by the appelIanV claimant in the motor accident and the fact that those injuries resulted in any permanent disability. 9. The question whether the medjcal 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. Thirupal Reddy, 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 jssued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disabiJity to be 45 per cent. The Hiah Court committed aross errpr in overlookina the fact that Dr. Sudhakar Reddv's medLeal certificate was rejected bv the TribunaLfor non- examination ofthat doctor. The Tribunaj has determinecl the phvsicaj 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 distyrbjng the same and enhancina the compensation. Consequently, we ailow this appeal, set aside the impugned order and restore the award of the Claims Tribunai. The respondent-claimant is allowed to withdraw the amount of .^S^KS^ ^.^ y^. ^ ^'•^ s-m, 1 %^:^ 4 compensation awarded by the Tribunal, if it has not already been withdrawn." 10. 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 js 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." 11. Now reverting to the facts of the present case, though medical certjficates wereadduced in evidence before the Tribunal by the claimant, no Doctor was examined before the Tribuna! to '%I;r.^ "'^&..3ft&^'''»- s» subbu prove the contents of those certificates. In the absence of examination of the Doctor, those certificates cannot be taken into consideration as substantive evidence in view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thirupal Reddy (Supra) and Rajesh Kumar alias Raju v. Yudhvir Singh and another (Supra), for enhancement of the compensation. 12. For the foregoing reasons, we do not find any scope for enhancement of the compensation awarded by the Tribunal. 13. The appeal filed by the appellant/ claimant for enhancement of the compensation, therefore, is iiable to be dismissed and is hereby dismissed summarily^ Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge