^ HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.(ClN0.1S22of2009 D.B.: HON'BLE SHRI JUSTICE SUNIL KUMAR SINHA & HON'BLE SHRI JUSTICE R.L.JHANWAR APPELLANT RESPONDENTS 1 Ku. Salka Khan, aged about 12 years, D/o Mukhtar Ahmad Khan, Minor, through her natural guardian Father Mukhtar Ahmad Khan, R/o Maudahapara, Rizvi Near S.T.D.P.C.O., Police Station Maudahapara, Raipurjahsil and District Raipur (C.G.) Versus S. Selva Raj, aged about 56 years, S/o S.P.Chinnaiya, R/o 4th Battalion Mana, Raipur, Tahsil and District Raipur (C.G.) Driver of Vehicle Aishar No.CG-03-0436) Director General of Police, Chhattisgarh Government, Raipur, R/o 4th Battalion, Mana Raipur, (Owner of Vehide Aishar No.CG-03-0436) Tahsil and District Raipur (CG) APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT _/_ Appearance: Shri Sharad Kadam, Counsel forthe appellant. ORALORDER (04.12.2009) The following order of the Court was passed by Sunil Kumar Sinha. J: M.A.fCl N0.1522 of 2009 -- 2_- <sv Heard on I.A. No.01/2009, an application for condonation of delay in filing the appeal. According to the office report, the appeal is barred by 24 days of limitation. On due consideration of the submissions made by learned counsel for the appellant and the grounds taken in the application, we are satisfied that the appellant has sufficiently explained the delay in filing the appeal. Accordingly, I.A.No.01/2009 is allowed and the delay of 24 days in filingthe appeal is hereby condoned. Heard on admission. Appellant Ku. Salka Khan has filed this appeal for enhancement of the amount of compensation awarded in Claim Case No.06/2009 by the Additional Motor Accident Claims Tribunal (FTC), Raipur (C.G.) vide award dated 30th of June 2009. The appellant/claimant filed a claim petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.5.60,000/- on account of personal injuries sustained by her in the motor accident on 03.01 .2008, when her bicycle was dashed by the offending vehicle-Eicher, bearing registration No.CG-03- 0436, on account rash and negligent driving of the driver of the said vehicle. On the basis of the material available on record, the Tribunal awarded a sum of Rs.5000/- for pain and sufTerings and Rs.20,591/- on account of expenses incurred in treatment and it further awarded Rs.2000/- for conveyance and special diet. The Tribunal, thus, awarded a total sum of Rs.27,591/- that is to say Rs.27,600/- (in round figure), to the appellant for the personal injuries sustained by her in the motor accident. The Tribunal also awarded-interest @ 7.5% per annum from 08.12.2008 till its realization. M.A.(C) N0.1522 of 2009 - s- •^•^^^y Though the appellant/claimant examined herself as AW-1 and she also examined her father Mukhtar Ahmad Khan as AW-2 in support of the claim petition, but no Doctor was examined to prove the nature of injuries sustained by herand to prove that the injuries sustained by her have resulted into any permanent disablement to her. 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. SRTC v. P. Thirupal Rectaf^reported in f2005) 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 dlsability 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 comDensation. The Hiah Court erred in 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." The Apex Court in a recent dictum in the case of Rafesh Kumar alias Ra!u v. Yudhvlr Sinah and another. reported in f2008) 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 'y^S^^^ ' .^:y M.A.fCV N0.1822 of 2009 ^- •^ 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. Untess the author of the certificate examined himself. it was not admissible in evidence. Whether the disability at 60% was calculated on the basisof 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 hasno application, the same, in our opinion, cannot be permitted to be raised for the first time." As we have already mentioned, no Doctor was examined before the Tribunal to prove the fact that the appellant/claimant either sustained fracture or suffered any permanent disability on account of the injuries sustained by her. In view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thiivpal Redldv (Supra) andj^^gfi Kumar alias Rafu v. Yudhvlr Smah 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 can be taken into consideration as substantive evidence for assessment of the compensation in the case. For the foregoing reasons, we do not find any scope for enhancement of the compensation awarded by the Tribunal. The appeal filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. » No order as to costs. Sd/- Sunil Kumar Sinha Judge Sd/- R.L. Jhanwar Judge ^