^ HSGH COURT OF CHHATTISGARH AT BSLASPUR DIVISiON BENCH Coram : HON'BLE SHRS RAJEEV GUPTA, CJ. & HON'BLE SHRS SUNIL KUMAR SSNHA, J. IVIisc. ADpeai No. 932 of 2006 APPELLANT CLAiMANT ^ RESPONDENTS NON-APPLSCANTS !<t Akash Sharma, S/o iate D.K. Sharmaaged 32 yrs. R/o House No. 296 Shailendra Nagar, P.S. CMI Line, Raipur (C.G.) Versus 1. Ruman Kumar Sinha, S/o Revaram Sinha, aged about 30 years. Occupation - Driver, R/o C/o Satyak Distributors Telghani Naka Station Road, Raipur (C.G.) 2. Rajkumar Gadodiya, S/o Madhohari Gadodlya, aged about 34 yrs. Occupation - Satyak Distributors Telghani Naka Station Road Raipur (C.G.) 3. Division Manager, The Oriental insurance Co. Ltd. Divi'sion No.1, Madina Manjil Jail Road, Raipur SVIISCELLANEOUS APPEAL UNDER SECTiON 173 OF THE MOTORVEHSCLESACT Present: Shri S.C. Verma, iearned counsel for the appeliant. Smt. Savita Tiv^ari, iearned counse! for respondents No.1and2. Shri Sudhir Agrawai, leaFnedcounsei for respondent No.3. i ORDER (19th August, 2009) The following order of the Court was passed by Rajeev Gupta, CJJ --^ c Learned counsel for the parties are heard on M.C.P. No. 1289/2006, a petition for condonation of the delay in filing the appeal. 2. On due consideration of the submissions of iearned counsel for the parties and the grounds taken in the petition, we are satisfied that the appellant has sucx;eeded in showing sufficient cause for the deiay in filingthe appeal. 3. M.C.P. No. 1289/2006, therefore, is ailowed and the deiay in fillng the appeal is hereby condoned. 4. Shri S.C. Verma, Jearned counsel for the appeilant is heard on admission. 5. Appeliant Akash Sharma, is seeking enhancement of the compensation awarded by the Tenth Additiona! Motor Accidents Ciaims Tribunal, Raipur (forshort 'the Tribunai') vide award dated 28.04.2005, passed in Ciaim Case No.91/2004. 6. As against the compensation of Rs.18,92,000/- claimed by the appeilant/ claimant by fiiing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 27.01.2004, the Tribuna! awarded a total sum of Rs.1,31,500/- as compensation along with interest @ 9% per annum from the date of fi!lng of the ciaim petition tiil the date of actual payment, on the insurer's faiiure to pay compensationwithin one month from the date of passing ofthe award. 7. Shri S.C. Verma, learned counsel for the appellant vehemently argued that the compensation of Rs.1,31,500/- awarded by the Tribuna! is too iow in comparison to the serious nature of the injuries and fractures sustained by the appeliant/ ciaimant in the motor accident, resulting in permanent disability. 8. Before the Tribuna!; though the daimant examined as raany as three witnesses including himself (Aw-1 Akash Sharma, AW-2 Mohit Verma and AW-3 Tikeshwar Verma) in support of his claim, for the reasons best known to him, no doctor was examined to establish the nature of the injuries said to have been sustained by him in the motor accident and the fact that those injuries resuited in any permanent disability. 9. The questlon whether the medicai certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate can be reiied 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 vs. 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 resppndent-cSaimant who made an attempt to support the order of the High Court, we find that there was no justification for the High Court to reiy on the disability certificate Issued by Dr. Sudhakar Reddy and enhance the compensatlon by treating the injury as permanent disability to be 45 per cent. The Hiah Court commltted aross error in overiookina the fact that Dr. Sudhakar Reddv's medical certificate was reiected bv the Tribunai for non-examination of that doctor. The Tribunat has determined the phvsica! dlsabilltv at 15 per cent on the basis of the deDosition of Dr. K.M. Mitra and awarded a iust and fair compensation. The Hlah Court erred in disturbina the same and enhancina_ the compensation. Consequently, we aiiow thls appeai, set aside the impugned order and restore the award ofthe Ciaims Tribunal. The respondent- ciaimant is ailowed to withdraw the amount of compensation awarded bythe Tribunal, if it has not already been withdrawn." 10. The Apex Court in a recent dictum in the case of Rajesh Kumar allas Raju vs. Yudhvir Slngh and another, reported in (2008) 7 SCC 305, reiterated the same view with the foliowing observations in para 11 : "11. The certificate in question in this casewas obtained after two years. It is not known as to whether the Civif Surgeon of the hospitai treated the appetlant. On what basls, such a certificate was issued two years after the accident took place Is not knovm. The author of the said certificate had not been examined. Untess the author of the certlficate examined himseif. It was not admissible in evidence. Whether the disability at 60% was caicuiated on the basls of the provissons of the Workmen's Compensation Act or otherwise is not known. It is aiso not known as to whether he was competent to issus such a certificate. it even does not appear that the contentions raised before us had either been raised before the Tribunai or the High Court. The Tribuna! as also the High Court, therefore, proceeded on the materials brought on record by theparties.in absence of any contention having been ralsed in regard to the appiJcabElity of the Workmen's Compensation Act whlch, in our opinion, ex facie has no appiication, the same, In ouropinion, cannot be permitted to be raised for the first time." 11. In view of the above quoted dlcta of the Apex Court in the cases of A.P. SRTC vs. P. Thirupal Reddy (Supra) and Rajesh Kunnar agias Raju vs. Yudhvir Singhand another (Supra), the medical certificates and disability certificate produced by the appellant/ ciaimant before the Tribunal without examining the Doctors who had issued those certificates, cannot be taken into consideration for enhancement ofthe compensation in the case. subbu 12. We, therefore, do not find any scope for enhancement of the compensation awarded bythe Tribunal. 13. The appea! filed by the appeiIanV claimant for enhancement of the compensatiQn, therefore, is iiable to be dismissed and is hereby dismissed summariiy. Sd/- ChiefJustice Sd/- Sunil KumarSinha Judge