I. ^&s^^'""^ I 1"^L}i ^'^^^^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J. Misc. Appeal (C) No. 787 of 2011 Appellants Claimants '(<-. Ku Princy Lakda, d/o Shri Siril Lakda, aged about 08 years (Minor) Through her mother Smt Bernadetta Lakda Smt Bernadetta Lakda, W/o Siril Lakda, aged about 35 years, Caste Uraon Both r/o Aadarsh Nagar Kunkuri, Tahsil Kunkuri, Distric Jashpur (CG) VERSUS Respondents ^- Sudarshan Yadav, s/o Shri Vinod, aged about 42 years, Caste Mahkul, r/o Village Pagura, Tangar, Police Station & Tahsil Duldula, District Jashpur (CG) (owner of Vehicle TrollyHNo.CG-14A/0945) The New India Insurance Company Limited, through Branch Manager, Branch Office Satigudi Chowk, Raigarh, District Raigarh (CG) (Insurer ofVehicle Trolly HNo.CG-14 A/0945) Misc. Appeal under Section 173 ofthe MotorVehicle Act. Present: Shri PM Shriwas, counsel for the appellants. ORDER ^th (26InJuly,2011) 2 The following order of the Court was passed by Rajeev Gupta, C.J. Shri PM Shriwas, 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 for the delay in filing the appeal. 3) I.A.No.01/2011, therefore, is allowed and the delay infiling the appeal is hereby condoned. 4) Shri PM Shriwas, learned counsel for the appellants is heard on admission. 5) The appellants are seeking enhancement of the compensation awarded by the Additional Motor Accident Claims Tribunal, Jashpur at Kunkuri (for short 'the Tribunal') vide award dated 04.03.2011, passed in Claim Case No.44/2009. 6) As against the compensation of Rs.8,63,930/- claimed by the appellants/ claimants by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by claimant Ku.Princy Lakda in the motor accident on 28.01.2009, the Tribunal awarded a total sum of Rs.63,670/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. -;;-^^^,,^ ^'.^. "%. ,.,^,. V: '^;'^:''- ^, ^M'W' ^ ^ ' (.:• 7) Shri PM Shriwas, learned counsel for the appellants vehemently argued that the Tribunal has erred in awarding low compensation of Rs.63,670/- only though claimant Ku.Princy Lakda sustained multiple serious injuries including fradures in the motor accident, resulting in permanent disability to the extent of10%. 8) For the reasons best known to the appellants/ claimants, no doctor was examined before the Tribunal for establishing the number and nature of the injuries said to have been sustained by claimant Ku.Princy Lakda in the motor accident and the fact that those injuries resulted in any permanent disability. In fact, no disability certificate was produced before the Tribunal as is apparent from para 18 ofthe impugned award. 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 madean attempt to support the orderofthe High Court, we find that there was no justification forthe 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 Reddv's medical certificate was reiected bv the Tribunal 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. K.M. Mitra and awarded a iust and fair compensation. The Hiah Court erredin disturbina the same and enhancina 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 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 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 rajsed 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 certificates produced before the Tribunal without examining the doctors who had issued those certificates, ,in view of the above quoted dicta of the Apex 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) The disability certificate produced by the appellants for the first time in this appeal (Annexure-A/2) has been issued by the Medical Board on 07.06.2011 i.e. after 2 ^ years of the accident, which occurred on 28.01.2009. Even this certificate certifies the disability to the extent of 10% only and the same is of temporary nature and likely to improve. 13) For the foregoing reasons, we do not find scope for enhancement of the compensation awarded by the Tribunal. 14) The appeal filed by the appellants/ claimants for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed summarily. _ Sd/- ChiefJustice Sd/- R.N. Chandrakar Judge subbu