•-i,. v> ''a^^^ <3!) HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRi RANGNATH CHANDRAKAR, J. Misc. Appeal (0 No. 870 of 2011 Appellants Kanhaiya Lal Gupta, s/o Shri Ramlakhan Gupta, aged about 18 years, occupation student; Ramlakhan Gupta, s/o Shri Ramswaroop Gupta, aged about 60 years; occupation agriculture; Both r/o Chirmiri, P.S. Chirmiri, tehsil Manendragarh, district Korea C.G. Presently residing at Umeshwarpur, P.S. Prem Nagar, Tehsil Surajpur, district Surguja C.G. Claimants VERSUS Resoondents Arun Kumar Pandey, s/o Harishchandra Pandey, aged about 23 years; occupation Driver, r/o Krishnapur (K^lua), P.S. & Tehsil Surajpur, district Surguja C.G. Driver of the vehicle Shlv Prasad Rajwade, s/o Ramdhan Rajwade, agead about 40 years, caste Rajwar, Advocate, r/o village Bharuhamuda, p.S. & Tehsil Syrajpur, P.0. Krishnapur, district Surguja C.G. Owner ofthe vehicle The Oriental Insurance Company Limited, through its Branch Manager, Branch Office at Ambedkar Chowk, Ambikapur, PS. & Tehsil Ambikapur, district SurgujaC.G. insurer of the vehtele a Appeal under Section 173 of the Motor Vehicle Act. 1988 Present: Shri Ashish Surana, counsel for the appellants. I ORDER (18th July, 2011) The following order of the Court was passed by Rajeev Gupta, C.J. Shri Ashish Surana, learned counsel for the appellants is heard on I.A.No.01/2011, an application for condonation of the delay in filing the appeal. 2) On due consideration of the submissions of learned counsel for the appellants and the grounds taken in the application, we are satisfied that the appellants have succeeded in showing sufficient cause forthe delay in flling the appeal. 3) I.A.No.01/2011, therefore, is allowed and the delay in filing the appeal is hereby condoned. 4) Shri Ashish Surana, learned counsel for the appellants is heard on admission. 5) The appellants are seeking for enhancement of the compensation awarded by the-.First Additional Motor Accident Claims Tribunal, Surajpur; district Surguja (for short 'the Tribunal') vide award dated 06.09.2010, passed in Claim Case No.53/2007. 6) As against the compensation of Rs.40,00,000/- claimed by the appellants/ claimants by filing a claim petition under Section 166 of the Motor Vehicles Acf for the injuries sustained by "7^ appellants/ claimants tonhaiya Lal Gupta and Ramlakhan Gupta in the motor accident on 14.02.2006, the Tribunal awarded a total sum of Rs.5,00,000/- and Rs.25,000/- as compensation to claimant No.1 l^nhaiya Lal Gupta and claimant No.2 Ramlakhan Gupta, respectively along with lump-sum amount of interest of Rs.25,000/-. 7) Shri Ashish Surana7 learned counsel for the appellants vehementlv araued that the Tribunal has erred in awarding low compensation of Rs.5,00,000/- and Rs.25,000/- though the appellants/ claimants sustained multiple serious injuries in the motor accident. 8) From para 5 of the impugned award, we gather that the claimants examined AW-1 Ramlakhan Gupta alone in support of the claim petition. For the reasons best known to the appellants/ claimants, no doctor was examined before the Tribunal to establish the number and nature of the injuries said to have been sustained by the appellants/ claimants in the motor aceident and the fact that those injuries resulted in any permanent disability. 9) 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 Reddy, reported in (2005) 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 disability 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 Reddy's medical certificate was reieeted bv the Tribunal for non- examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a iust and fair compensation. The Hiah Court erred in disturbina the same and enhancing 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." 10) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju v. 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 vears. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, su'ch a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence.- Whether the disability at 60% was calculated on the basis of 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 has no application, the same, in our opinion, cannot be permitted to be raised for the first time." 11) The medical certificate and the disabitity certificate produced by the claimarits before the Tribunal without examining the doctors who had issued those certificates, in view of the above quoted cf/cte of the Af^x Court in the cases of A.P. SRTC v. P. Thirupal Reddy (Supra) and Rajesh Kumar alias Raju v. Yudhvir Singh and another (Supra), 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 - appeal filed by the appellants/ claimants for enhancement of the compensation, therefore, faits and is hereby dismissed summarilv. SdA ChiefJustice Sd/- R.N.Chandrakar Judge subbu