mm HIGH COURT OF THB CHHATTISGARH AT BILA8PUR M.A. (Cl N0.932/2009 APPELLANT Dulmaf Bai, wife of Suraj Lal Saliu, aged M>out 45 years, Kesident of yi^ MQrQiSLipQi^^P^ Police Station Durgukondal, Tahsil Bhaaiipratappur, District Uttar Bastar Kanker (C.G.) Versus RBSPONDENTS 1 Naveen Kuinar Jam, son of Heerachand Jau^, aged about not kadwh/ R/o ViUage aad Tabsil Bhajizipra.tappur/ Talisil Uttar Bastar Kanker (C.G.) 2 Bajaj AUializ General Insxiraiice Compoiiy^^^^^^^^ ^ Through Braach Maaager, iBraach Of3Eice Shivtiiohaa Bhaivaii, Vidhao. Sablia Marg Padri, Raipur, TaIisU aiid District Raipur (c.a.),;,1 ••^,.. j-. MISCBLLANBOUS APPEAL UNDBRSBC?nON 173 OF THB MOTOR VEHICLES ACT. Appearance: Shn P.P. Sahu, Counsel fcr flie appellaat. ORALORDBR (06.07.2009) SUNIL KUMAR SINHA. J. Heard. (2) The appellant/cl^^ has filed this appeal for enhaiicement of the ainouiit of compensation awaided m Claim. Gase No.28/2008 by the Additional Motor Accident Claims Tribmial (F.T.C.), Bhanupratappur, District Uftar Bastar Kaaker (C.G.) on 09.04.2009. ^ (3) Appellaiit/ Clmmant Duhuat Bai iifed a pefition under Secfton 163 of fhe Motor Vefaicles Act clmmmg comg^^at^ Rs.4 lakhs on account offhe iiijuries sustai^ accident on 08.03.2008. ^ ^ - M.A.fC)No.932/2009 (4) Though th-e appeUaD.t/claiDiaat pleaded fhat she sustamed various iajuries uicluding fracture aad peraiaaent disablenient, but no Doctor was examiaed by Ixer to siibstantiate fhe above contentions. The Tribunal observed that fh@ X-Ray plates filed as Ex.P-41, 42 and 43 do not disclose aay fracture sustaiaed by fhte appeUant as per fhe report. Even fhe copy of fhe iryury report filed as EX.-P/6 discloses fhat fhe appeUaiit sustamed siaiple iajuries, Lookuig to all this, the Tribiuial awarded asuin ofRs.9528/- towards medical expenses and Rs,1000/- towards pam aad suffermgs. Thus, a total sum of Rs, 10,528/- was awarded by fhe Claims Tribunal as fhe aoiount of conipensation to the appellant on account of the injiuies sustauied by her in the niofor accident The Tribunal also awarded iaterest@ 6% per annuin from ttie date offilmg offhe claim petition tUl its reaUzation. (5) Learaed counsel for fhe appellaat vehementiy argues that the Tribuiial has erred ia awardmg low compensation of Rs.10,528/- only, whereas, tlie appellant/ claiinant sustaiaed multiple serious injuries ia fhe motor accident. (6) For the reasons best knowii.th? appellaat/ claiaiant no doctor was examined before the Tribunal to establish the nature of the injuries said to have been sustaiaed by the appeUaat/claiaiaiitui the laotor aceident aad the faict fhat those injuries resutted in any permaiient disabUity. $ (7) The questton whefher fhe medi<^ produced by the claimaiit before the Tribunal without exammmg the Doctor who issued tlie certificate caa be reUed upon as substaative evidence for tte assessment ofthe compensation caoie up for consideratbn beforc the Apex Coiirt m the case of AP. iSRTC ^ P. Thirupal Reddsi^ reported in. f200S) 12 SCC 189, wherem it was observed ia para 6 as under : a6. After Iieanng leamed counsel for the ;, ^ respondent-claiinaat who inade an atteinpt to support fhie order of the High Court, we find fhaf fhere was no justification fbr fhe High Court t& rely on ftie disabUity ••^,.^^'^ M.A.rC^No.932/2009 certificate issued by Dr. SudhakarReddy and enhaace Uie comLpensation by treatmg fhe iajury as perraaaent disability to be 45 per cent The Hiph Court committed RTOSS error ia overtookbig fhe fact fh.at Dr. SudhaJ<ar Reddy's medical certificate was reiected by fhe Tribunal for non-exanitaation of fh.at doctor. The Tribunal has determmed flie physical disability at 15 per cent on the basis of the depositten of Dr. K.M. Mitra aiid awarded a iust aad fair coixipensation. The High Court erred m. disturbiag the same aad enhaaciaR fhe coinpensation. Consequently, we allow this appeal, set aside fhe impugned order aad restore the award of fhe Claims Tribunal. The respondent-claimaiif is aUowed tb withdraw fhe amomit of compensation awarded by the Tribunal, if it has not already been wifhdrawn.^ (8) The Apex Court ia a recent dictum ia fhe case of Safesh Kunwr alicis JRasu v. Yudhvir Sinoh emd another^ reported m (2008) 7 SCC 305. reiterated fhe same view wifh tlie following obsen^ations in para 11 : "11, The certificate in question m tfais case was obtamed after two years.It is not known as to whether tiie Civil Surgeon of the hospital treated fhe appellaiit On what basis, such a certificate was issued two yearsi afler tfae accident took place is not known. The aufhor of fhe said certificate had not^been exaoiined, Unless the author of fhe certificate exammed himself, it was not admissible m evidence. Whetih.er fhe disability at 60% was calculated ou the basis of the provisions of fhe Worknien's Compensation Act or othenyise is not known. It is also not known as to whefher he was competent to issue such a certificate. It even does not appear fhat the contentions raised before us had eifher been raised before the Tnbunalor fhe High Court The Tnbunal asalso fheHigh Court, flierefore, proceeded on fhe inaterials brou^ht on record by fhe parties.In absence ofany contentioii haviag been raised ia regard to the appHcability of fhe Worknien's Compensation Act which, ia our opioion, ex facie has no appUcation, fhe same, ia our opmion, caanot be permitted to be raised for the first time." (9) As I have ah-eady mientioned, no Doctor was examiaed before the Tnbunal to prove fhe fact fhat fhe appeUaat/claimaiit eitilier sustamed fracture or she suffered aay pennaiieat disabitity on account of the mjuries sustamed by her. Even fhe documents (certificates iacludiag tlie inedical examiaation report) flled by her were not proved. ^. K ^^ ^^? iiy ^ 1@^ •n iii Mi BK 11 IB 1;:% K .li ,..,,^v<-^: M.A. (C) No.932/2009 (10) In view of fhe above quoted dicta of the Apex Court ia tlie cases of A.P. SRTC v. P. Thiniffdl Jieddif (Supra) and Rajesh Kumar alicts RaSu v. Yudhvir Stneih and another (Supra), flie certificate j produced before fhe Tribunal ia the absence ofexammation of fh-e Doctor issuing the certt&cate is neiUier adniissible ia evidence nor coii be iBken WLto consideration as substan.tive evidence for 1 assessmentofthe^coi3^ case. (11) For tiie foregoiag reasons, I do not fnid any scope for enhancenient offhe compensation awarded by tlie Tribunal. (12) The appeal filed by the appeBaat/claimaat for enhancement of tlie coinpensation, fherefore, is Uable to be disniissed an.d is hereby dismissed. (13) No order as to costs. Sd/- Sunil Kumar Sinha Judge