i^ 'H-T' m H?GH COURT OF CHHATTISGARH AT BILASPUR DSVSSgQN BENCH CORAiVI: HON'BLE SHRI RAJEEV GUPTA, C.J. HOhi'BLE SHRS SUNSL KUM/V? SSNHA, J. Mlsc ADpeai (C} NoJ13/2009 ApDeSlant Ciaimant before the Tribunai Respondents Non-applicants Before the Tribunal Ku Sewati, D/o Shri Ramvllash Yadav, agedjabout Syears, (Minor Guardian through Father Ramviiash) R/o Viitage and Post - Barhapur, PS and Tahsil Dhamda Distt Durg (CG) Versus Nakul Sahu, S/o Bhuwan Sahu, R/o Chichoia, PS Kalragarh, Distt Rajnandgaon (CG) (Driver of the Vehicle) Krishna Kumar Yadav, S/o Sitaram Yadav,R/o 789 EVSP Housing Board Colony, Gudiyari Raipur, Distt Raipur(CG) (Owner of the Vehicle) Branch Manager Nationa! insurance Company Ltd., Akash Ganga, Supeia Bhilal, Tahsli & Distt Durg (CG) (Insurer of the Vehide) Policy No.320800/31/05/630000474 Vaild from 08.02.2006 to 07.02.2007 IVSIscellaneous ADpeaS u/S 173 of the IVIotor Vehicles Act. 1988 Present : Shri Jitendra Gupta, eounsel for the appellant. QRDER (15m June,2009) The following order of the Court was passed by Rajeev Gupta, C.J. -^r *• Shri Jitendra Gupta, leamed counsel for the appellant is heard on tANo.1/2009, a petition for condonation of the delay in filing the appeai. 2) On due consideration of the submissions of iearned counsei for the appellant and the grounds taken in the applicatjon, we are satisfied that the appellant has succeeded in showina suffident cause forthe delay in fiiing the appeai. 3) !A No.1/2009, therefore, is allowed and the delay in filing the appeal is hereby condoned. 4) Shri Jitendra Gupta, learned counsel for the appellant is heard on admission. 5) AppellanVclaimant Ku.Sewati, a minor girl, aged about 8 years has fiied this appeal through her father for enhancement of the compensation awarded by the Eighth Additionai Motor Accident Claims TribunaJ, Durg (CG) (for short, 'the Tribunal') vide award dated 15.09.2008, passed in Claim Case No.82/2006. 6) As against compensation of Rs.4,45,000/-, claimed by the claimant by fijing a daim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by her in the motor accident on 25.10.2006, the Tribunal awarded a total sum of Rs.42,075/- as compensation along wlth interest @ 6% per annum. 7) Shri Jitendra Gupta, learned counsel for the appellant vehemently argued that the Tribuna! has erred in awarding iow compensatlon of Rs.42,075/- only. 8) For the reasons best known to the aDpeilant/claimant, no doctor was examined before the Tribunal to establlsh the nature of (^ the injuries said to have been sustained by the appeliant/claimant in the motor accident and the fact that those injuries resuited inany permanent disability. 9) The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certlficate can be relied upon as substantive evidence for the assessment of the compensation came up for consideratlon before the Apex Court in the case of A.P.SRTC Vs P.Thirupal Reddy reported in (2005) 12 SCC 189, wherein it was obser^ed in para 6 as under: "6. After hearing learned counsei for the respondent c!aimant who made an attempt to support the order of the High Court, we find that there was no justiflcation for the High Court to rely on the dlsabllity certificate Issued by Dr Sudhakar Reddy and enhance the compensatlon by treating the snjury as permanent disabiiity to be 45 percent. The Hiah Court committed aross error In overlookma the fact that Dr Sudhakar Reddv's medical certiflcate was reiected by the Tribunai for non-examination of that doctor. The Tribunai has determined the phvsicai disabilltv at 15 per cent on the basis of the deoosltion of Dr KM Mitra and awarded a iust and faircomDensation. The h4i.gh Court erred in disturbina the same and enhancina the compensation. Consequentiy, we allow this appeal. sst aside the impugned order and restore the award of the Claims Tribunai. The respondent-claimant is ailowed 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 Vs Yudhvlr Singh and another, reported in (2008) 7 SCC 30S, reiterated the same view with the foilowing obsewations in para 11 4 ^' "11. The certificate in question in this case was obtained after two years. It js not known as to whetherthe Civsi Surgeon of the hospital treated the appeilant On what basis, such a certificate was issued two years after the accldent took piace is not known. The author of the said certificate had not been examlned. Uniess the author of the certlficate examined himself, it was not admissible in evidence. Whether the disabiiity at 60% was caiculated on the basis of fhe provisions of the Workmen's Compensatson Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certiflcate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the Hlgh Court. The Tribunal as also the Hlgh Court. therefore, proceeded on the materials brought on record by the parties. In absence of any contention havlng been raised in regard to the appiicabillty of the Workmen's Compensation Act which. in our opinlon. ex facfe has no application, the same, in our opinion. cannot be permitted to be raised for the first tlme." 11) in view of the above quoted dicta of the Apex Court, a medical certsflcate produced before the TrSbunal without examining the doctor, who had issued the sald certlficate cannot be taken into consideratlon for enhancement ofthe compensatlon in the case. 12) We, therefore, do not fsnd any scope for enhancement of the compensation awarded by the Tribunal. 13) The appeai flied by the appeliant for enhancement of the compensation, therefore, Is ilable to be dismissed and ss hereby dismissed summariiy. Sd/- Chief Jusdce Sd/- Sunil Kumar Sinha Judge ^ ^.^-