^lo^ G III ir ^- HIGH COURT OF CHHATTSSGARH AT BILASPUR DJVtSION BENCH CORAM: HQN'BLE SHRi RAJEEV GUPTA, C.J. HON'BLE SHR! SUNSL KUMAR SINHA, J. Rfliscellaneous Appeai (0 No.3§0of 2007 Appellants AppSlcants RespDondents Non-applicants 1. Sahzad Khan, aged about 30 years S/o Mahmood Khan 2. Smt Rubeda Katoon aged about 26 years, W/o Sahzad Khan 3. Smt Sahida Khatoon aged about 55 years W/o Mahmood Khan Alt resident ofYadunandan Nagar, Tifra TahsiS & Djstrict Biiaspur (CG) 1. Dilesh Prasad Suryavanshi S/b Baldau Prasad, Driver, R/o Beipara, BeltaraPS Paii, Distt Korba,through Misba Ahmed S/o Ekba! Ahmed, i^agarpara Marimai, Bilaspur (CG) 2. Misba Ahmed S/o Ekba! Ahmed owner, R/o Magarpara Marimai, Bliaspur (CG) 3. The New India Insurance Co.Ltd., through Divlsionai Manager, Near Bus Stand, Bilaspur(CG) MisGeJianeous Appeai under Section 173 of the S^otor VehlcSes Act. 1888 Present : Shri MK Bhaduri and Shri PK Tulsyan, counsel for the appeHants. ORDER »th (28m August,2008) The following order of the Court was passed by Rajeev G;upta, C.J. Sh'ri- MK Bhaduri and Shri PK Tulsyan, learned counsel for the appellaNs. are heard on iA No.1/2007, a petition for condonation ofthe delay in filing theappeal. 2) On due conslderation of the submlssions of learned counset for the appeilants and the grounds taken in the appiication, we are satisfied that the appellants have succeeded in showing sufficient cause t'or the delay in fiiing the appeal. 3) IA No.1/2007, therefore, is aiiowed and the deiay in filing the appeal Js hereby condoned. 4) Shri MK Bhaduri and Shri PK Tulsyan, iearned counsel for the appellants are heard on admission. 5) Appellants are seeking enhancement of the compensation awarded by the First Additiona! Motor Accident Ctaims Tribunal, Biiaspur, (for short 'the Tribunal') vide award dated 17.11.2006 passed in Ciaim Case No.137/2005. 6) As against the compensation of Rs.10,98,000/-, ctaimed by the appeiiants/ciaimants by fiiihg a claim petition under Section 166 of the Motor Vehicles Act for the death of minor girl Kum Saheen Parveen, aged about 6 14 years; for the injuries sustained by daimant No.2 Smt Rubeda Katoon; and the damage caused to the claimants' car bearing reglstratlon No.BRW-364 in the motor accident on 12.11.2005, the Tribunal awarded Rs.1,92,000/- for the death of Kum Saheen Parveen; Rs.15,000/- for the injuries sustained by claimant No.2 Smt Rubeda Katoon; and Rs.40,000/- for the damage to the claimants' car in the motor accident along with interesj'@ 6% per annum from the date of filing of the ciaim ,x . . petition till fhedateof actual payment. 7) Shri MK Bhaduri and Shri PK Tuisyan, learned counsel for the appej^ants vehemently argued that the Tribunai has erred in u~ awarding low compensation of Rs.1,92,000/- only for the death of clalmants' daughter Kum Saheen Parveen; in awarding iow compensation of Rs.15,000/- oniy for the injuries sustained by Smt Rubeda Katoon though she sustained muitiple serious injuries in the motor accident; Rs.40,000/- only for the damage of the car, though the actuai damage^was to the extent of Rs.60,000/-. 8) The Apex Court whiie consideringas to what would be the just and proper compensation for the death of a child aged about seven years in the motor accident In the case of Orienta! !nsurance Co. Ltd. V. Syed Sbrahim and others reported in 2007 (4) T.A.C. 385 (S.C.) observed in paras 9 & 10.: . "9. This Court in Lata Wadhwa while computing compensation made distinctlon between the deceased chiidren failing within the age group of 5 to 10 years and age group of 10 to 15 years. 10. In cases of-young children of tender age, in view of uncertainties about, neither their income at the tim^ of death nor the prospects of the future increase in their Income nor c'hances of advancement of their career are capable of proper determination on estimated basis. The reason is that atsuch an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing l can be assumed with reasonable certainty. ^ Therefore, neither is the income of the \deceased childcapable of assessment on estimated basis nor is the financlal loss suffered C-- © by the parents capable of mathematical computation." The Apex Court in the case of Oriental Insurance Co. Ltd. V. Syed Ibrahlm and others (supra), heid that the compensation of Rs.51,500/- was just and proper compensation for the death of a chiid aged about seven years. 9) Reverting to the present case.admittedly Kum.Saheen Parveen was aged about 6 Vz years on the date of the accident. The compensation of Rs.1,92,000/- awarded by the Tribunal when examined Jn the context of the above quoted dictum of the Apex Court in the case of Orlental Snsurance Co. Ltd. V. Syed Ibrahim and others (supra), we are satisfied, Is rather on the higher slde and does not call for any enhancement in this appeat. 10) So far as thecompensation fpr the injuries of appetiant / daimant No.2 Rubeda Katoon is concerned, for the reasons best known to the claimsnts, no doctor was examined before the Tribunal to establish the nature of the injuries said to have been sustained by the appellant/ctaimant in the motor accident and the fact that those injuries resulted in any permanent disability. 11) The question whether the medical certificate produced by the claimant before the Tribunai without examining the Doctor who issued the certificate can be retied upon as substantive evidence for the asse?sment of the compensation came up for consideration ^ l- '' before the.Xpex Court in the case of A.P.SRTC Vs P. Thirupal Reddy report^d in (2005) 12 SCC 189, wherein it was observed in para 6 as under.: :^^ 1 11 'Mw 111! "6. After hearing learned counsei for the respondent - claimant who made an attempt to support the order of the High Court, we flnd that there was no justification for the High Court to rely on the disability certificate issued by Dr Sudhakar Reddyand enhance the compensation bytreating the injury as permanent disability to be 45 percent. The Hiah Court committed aross error in overjookina the fact that Dr Sudhakar Reddv's medical certificate was reiected bv the Trtounat 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 KM Mitra and awarded a iust and fair compensation. The Hiah Court erred in disturbina the same and enhancing the compensation. Consequently, we ailow thls appeal, set aside the impugned order and restore the award of the Claims Tribunai. The respondent-daimant is aliowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn." 12) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju Vs 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 is 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 '^)lace is not known. The author of the said certifieate had not been examined. Unless the author ofthe certificate examined himseif.it was ^ ?•\ :^> l1""^ not admissible in evidence. Whetherthe disabiiity at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It isaiso 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 opinjon, exfac/e has no application, the same, in our opinion, cannot be permitted to be raised for thefirst time." II 13) tn yiew of the above quoted dicta of the Apex Court in the cases of A.P.SRTC Vs P. Thirupal Reddy (supra) Rajesh Kumar alias Raju Vs Yudhvir Singh and another (supra), the medical certificate produced by the appellant/ciaimant before the TribynaJ without examining the Doctor who had issued the said certificate, cannot be taken into consideration for enhancement of the compensation in the case. 14) Though the daimants pieaded that their car sustained damage to the extent of Rs.60,000/- in the motor accident, the evidence'led-iin that behalf was not of clinching nature. The ^- '' ' ' • '^ Tribunal, therefore, was left with no other option but to award \ compensation f^r the damage to the car on its own estimate. padma 15) On due consideration, we do not find any scope for enhancement of the compensation awarded by the Tribunal for the damage to the claimants' car in the motor accident. 16) For the foregoing reasons, we do not find any scope for enhancement ofthe compensationawarded by the Tribunat either for the death of Kum. Saheen Parveen or for the injuries sustained by claimant No.2 Rubeda Katoon or the damage to the claimants' car in the motor accident. 17) The appeal filed by the appellants/claimants for enhancement of the compensation, therefore, is liabie to be dismissed and is hereby dismissed summarilyJ Sd/- Chief Justice Sd/- s""il Kumar Sinha Judge •\ llj'il^'P