HIG OU CAR A B V DIVISION BEIJ ,H ORAM: HON BLE SHRI RAJEEV GUPTA CJ & HON’BLE SHRI R.L JHANWAR J M.A. (e) No.1ss ck zoos i Jagla! Swafhakar, Son of Shri Harprasad Swarnakar aged about 3 years ReSIdent of Village Karwadeeh PoliC€Statlon 'Kharsla District Rangarh (C G) Appellant Claimant VERSUS Yashwant Kumar Son ot Sri Jageshwar P§asad Resident of New Risda Bhadrapara Balco Distrt ‘Korba(C G (BOIero Jeep Driver} hn Naresh Ku'mar Verma Reside of' Transport Nagar Korba (C G) (Owner of Jeep) he New India Insurance Company Limited, Transport Nagar, Korba, District Korba (C.G.) Respondents (insurer) lsc Appeal under Section 173 (2) of the Motor Vehicles Act 1988 Present : Shn A N Bhakta counsei forthe appeilan None for respondent No 1 though served ORDER » (015‘ February, 2010) The foiiowm order of the Court was passed by g \ ‘\ at m a s Shn A N Bhaa eame counsel for te appeant ts heard at on M C P No 1592/2006 a petition for condonatron of the delay in flingthe appeal r a“ a. Rajeev Gupta, C J H CRT OF HHTTISGAH T ILASPUR C " 6 ‘ ‘ y h ic ) - S nt T M t r kt Id h ll y 1 I 2) On due consideration of the submissions of learned counsel for the appellant, we are satisned that; the appellant has succeeded in showing sufficient cause for the delay in tiling the appeaL 3) M.C.P.No.1592/2006, therefore, is allowed and the delay in ming the appeal is hereby condoned. 4) Shri A.N. Bhakta, learned counsel for the appellant is heard on admission. i 5) Appellant — Jaglal Swarnakar is seeking enhancement of the compensation awarded by Fourth Additional Motor Accident Claims Tribunal, Raigarh (for short ‘the Tribiunal') vide award dated 03.03.2005, passed in Claim Case No.61;l2004. 6). As against the compensation of Rs.18,26,000l- claimed by the appellant/claimant by tiling a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 24.07.2003, the Tribunal awarded a total sum of Rs.86,285/- as compensationalong with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 7). x Shri A.N. Bhakta, learned counsel for the appellant yehemently argued that the Tribunal has erred in awarding low compensation of Rs.86,285/— only though the appellantlclaimant sustained multiple serious injuries including fractures in the motor \ accident resulting in permanent disability. 8) From para 7 of the impugned award, we gather that though the claimant examined as many as three witnesses (AW-1 Jaglal ‘hi Swarnakar AW-2 Dhaneswar Das and AVY—3 Dhananjay Kumar Patel) m support of his claim before the Tribunal for the reasons best known to the appellant/ claimant no dqctor was examined to ' estabhsh the nature of the Injuries sand to have been sustained hy ' the appellant/ claimant In the motor accident and the fact tha those Injuries resulted In any permanent disabmty 9) The question whether the medicat certtfcate produced by the claimant before the Tnbunal wrthout examining the Doctor who Issued the certrfcate can be relied upon as substantive evrdence for the assessment of the compensation came up for consrderatron before the Apex Court m the caseof A.P. SRTC v. P. Thirupal’ Reddy, reported in (2005) v12 SCC' 189, Wheein it was observed in para '6 as under : “6. . After hearing learned counsel for the respondent- clarmant who made an attempt to support the order of the High Court we fnd that there was no justification for the ’ High Court to rely on the disability certifcate issued by Dr Sudhakar Reddy and enhance the compensatron by treating the rniury as permanent disabrlrty to be 45 per cent The High Court commrtted gross error in overlooking the fact that Dr Sudhakar Reddys medicat certificate was reiected by the Tribunal for non- examination of that doctor. ,TheTribunaI has determined the physicai disability at 15 per cent‘on the basis of the . deposition of Dr K M Mitra and awarded a iust and fair compenSation The High Court erred in disturbing the 7*“ _ same and enhancing the comgensatio Consequently, ’ we allow this appeal set aSIde the impugned order and (V restore the award of the Claims Tribunal I The lg ' g - reSpondent-ciaimantis allowedto Withdraw the amountoft ’ t r ‘ i 4 a ompensaon awarded by the Tribual; if it ha t alread been Withdrawn " 4 _ v g 10) The Apex Court In a recent dictum In the case of Rajes Kumar allas Raju v dh oth r 08) 7 SCC 305 reiterated the same ‘Wlew wnth the followrn ctii n s nb y h Yuwr Singh and aner repoted In (20 g observatrons In para 11 ’ “11 The certificate In question In this case wa obtalned after two years It Is not known as to whethe the CIVII Surgeon of the hospital treated the appeilant On what basrs such a certlfoate was Issued two years after the accrdent took place Is not known The author o the said certlfcate had not been examined Unless the uthor of the certlfcate examined Ihlmself, It was not dmissible In eVIdence Whether the dlsabltlty at 60%, as calculated on the basis of the provrsions of th orkmen s Compensatron Act or otherWIse Is not known ‘ V It Is also not known as to whether he was competent to, ssue such a certlfcate lt even does not appear that the. contentions raised before us had either been raised efore the Tribunal or the High Court The Tribunal as lso the High Court therefore proceeded on th matenals brought on record by the parties ln absence of ny contention haVIng been raised In regard to the appllcablllty of the Workmen s Compensation Act which In our opinion ex, facle has no appllcatlon,the same, In a our opinion, canot be ermitted tobe raisefor the ti I ime." 11) ln view of the above quoted dicta of the Apex Courtmthe cases of A.P. SRTC v. P. Thirupal Reddy (Supra) and Rajesh Kumar alias Rajuuv. Yudhvir Singh and another (Supra), the medical certificates produced by the aellant/claimnt before the s j I r : ’ r f, a a w e W g I I b -. a e a __ n p d rst t l ppa ) n, Tribunal without examining the Doctors wiho had issued those Certificates, cannot be taken intoconsiderajtion for enhancement 7 of the compensation in the case; 12) We, therefore, do not' flhd any scopje for enhancement of the compensation awarded by the Tribtmalé 13) The appeal filedby the‘appeiiant/ciairnant for enhancement V of the compensation, therefore, isfJiabie to be dismissed and is hereby dismissed summarily. i f subbu ; z r i Sdl- Sd/- - i R.L. Jhahwar Chief Justice g i Judge i i ,