l©( HSGH COURT GF CHHATTISGARH AT BILASPUR DSViSiQNBENCH CORAJVi: HON'BLESHRi RAJEEVGUPTA,C.J. HON'BLE SHR! SUNSL KUMAR SINHA, J. Appeilant Claimant Miscelianeous Appeal (CY No.328 6T 2067 Vishnu Khare, aged 33 years, son of Shyam Lal Khare, R/o Dankbangla Road, Kargi Road, Kota, District Bi!aspur(CG) ResDpondents Non-appiicants VERSUS 1. Ramawatar Thawait son of Phatte Lat, aged 37 years, R/o Masjidpara, Kargi Road, Kota, District Biiaspur(CG) (Driver of Metadore No.CG 04-G/3459) ^' - ...'.' . . .•- 2. Gopal Prasad Tamboli, R/o Viiiage - Budhikhar, Ghowki - Maihar, PS Masturi, Djstrict Bilaspur (CG) (Registered owner of Metadore No.CG 04-G/3459) 3. The Orientai Insurance Company Limtted, Branch Office, BHaspur (Insurer of IVIetadore No.CG04-G/3459) Memo QfAppeal under Section 173 ofthe SVEotorVehidesAct.1988 Present : Shri MK Bhaduri & PKTuIsyan, counset for the appeilant. Shri Rakesh Sahu, counsei for respondents N0.1&2. ' Shri Abhishek SinhaandShri DL Dewangan, counse! for respondent No.3. :n. ORDER ?th The Rajeev Guptii,. C.J. (26tn August,2009) order of the Court was passed by ^=^—= € Le^rned counset for the parties are heard on lANo.1/2007, a petition for condonation of the de!ay in filing the appeal. 2) On due consideration of the submissions of learned counsel for the parties and the grounds taken in the application, we are satisfied that the appeliant has succeeded in showing sufficient cause for the delay in filing the appeal. 3) IA No.1 /2007, therefore, is allowed and the delay of four days in Tiling the appeal is hereby condoned; 4) Learned counsel for the appellant are heard on admission. 5) Appellant Vishnu Khare is seekingenhancement of the compensation awarded by the Additiooal Motor Accident Claims Tribunal, Bilaspur (CG),videaward dated 14.09.2006 passed in Ctaim Case No.35/2005. 6) As against the compensation of Rs.11,91,000/-, claimed by the appellant/daimant by filing a daim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 05.11.2004, the Tribunal awarded a total sum of Rs.45,000/- as compensation along with interest @ 9% per annum from the dateof filing ofthe claim petition, 7) Learned counsel for the appellant submitted that the Tribunal has erred in awarding low compensation of Rs.45,000/- only, though the appeiiant/dalmant sustained multiple serious injuries including ,f(tactures in the motor accident. ."< , .' • ' • ' . ' . ^ 8) Forvthe reasons best known to the appeliant/cSaimant, no doctor was ,ekamined before the Tribunal to establish the nature of ^::1^"-";: the injuries said to have been sustained by the appellant/claimant c in the motor accident and the fact that those Injuries resuited in any permanent disabiiity. 9) The question whether the medical certificate produced by the claimant before the Trlbunal without examining the Doctor who issued the certlficate can be reliedupon as substantive evidence for the assessment of the compensation came up for consideration before the Apex Court in the case of A.P.SRTC Vs P. Thirupal Reddy reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under: "6. After hearing tearned courisel for the respondent - claimant who made anattempt 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 -^ percent. 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 Trib6nal has determined the phvsical disabiiitv at 15 per cent on the basis of the deposition of Dr KM M'rtra and awarded a iust and falr compensation. The Hiah Court erred in disturbina the same and enhancina the compensation. Consequently, we allow this appeal, set aside the impugned order an(3 restore the award of the Claims Tribunal. Td^ respondent-claimant is allowed to withdraw the\amount of compensation awarded by the Tribuha!, if it has not already been withdrawn." 4 <.. 10) The Apex Court In a recent dictum in the case of Rajesh Kumar alsas Raju Vs Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observatlons in para 11 : "11. The certificate in question in this case was obtalned after-two years. Jt is not known as to whether the Civil Surgeon of the hospital treated the appeiiant. On what basis, such a certlficate was issued two years after the accldent took place is not known. The author of the said certificate had not been examined. UnSess the author of the certificate examined himself. it was not admissible in evidence. Whetherthe disability at 60% was caicuiated on the basis of the provisions of the Workmen's Compensation Act or otherwjse 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 contentlons raised before us had either been raised before the Tribunal orthe High Court. The Tribunai as also the High Court, therefore, proceeded on thematerials brought on record by the parties. In absence of any contention having been raised in regard to the apDlicabilsty of the Workmen's Compensation Act which, in our opinion, ex facie has no appltoation, the same, in our opinion, cannot be permitted to be raised for the first time." 11) In ^ew of the above quoted dscta of the Apex Court In the \,"' cases of AP.SRTC Vs P. Thirupal Reddy (supra) Rajesh Kumar alias Raju Vs Yudhvir Singh and another (supra). the medica! ? certificates produced by the appeliant/claimant before the TribunaJ padma without examining the Doctors who had issued those certificates, cannot be taken into consideration for enhancement of the compensation in the case. 12) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal. 13) The appeai, fiied by the appeilant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed summarily. Sd/- ChiefJustice Sd/- Sunil Kumar Sinha Judge \; '\