.^Pt 2^ SHRi SUNIL KUMAR SINHA, Misc. ARpeat No. 429 of 2003 Appellant : Ganesh Ram Khaperdey, S/o Shri Late Claimant Mahadev Prasad, aged about 45 years, R/o. Village Bhoyna, P.0. Achhota, Thana - Arjuni, Tahsil & Distt. Dhamtart (C.G.5 Smt. Rinki Ginoriya, W/o Shri Vijay Kumar Ginoriya, aged about 36 years, R/o. Gujrati Colony, Dhamtari, Tahsil & Distt. Dhamtari (C.G.) Memo of appeal under Section 173 of the Motor Vehicles Act Shri Y.C. Sharma and Shri Vivek Rathore, learned counsel forthe appetlant. Shri P.P. Sahu, learned counsel for the respondent. ith The followina order of the Court was passed bv Appeltant - Ganesh Ram Khaperdey is ; iseeking enhancement of the compensation awarded by the Motor Aceident Claims Tribunal; Dhamtari (for short 'th.e Tribunal') vide award dated 28-03-2003, passed in Claim Case No.10/2002. 2) As against the compensation of Rs.8,40,000/- clsimed :by | the appeliant/claimant by filing a ciaim petition under Sectjein 166 of | the Motor Vehicles Act for the injuries sustained by him in|the motor ! •riiMi.rtriits-. ;,i;]ta!si,-,. ' .^:^^^:l^. ^.....,^^ ,.,^ '? : ^. '®s ""•^ ^ a' Sf^' ]£;.,; y^^^'i' ^y '^...'^w^' accident on 07-03-2002, the Tribuna! awarded a total sum of Rs.25,000/- as compensation. 3) Learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.25,000/- only and in deducting a sum of Rs.8,500/-, which was alleged by the respondent to have been paid to the claimant during the course of his treatment in his hospital in pursuance of a compromise between them. 4) Shri P.P. Sahu,learned counsel for the respondent, owner of the offending vehicle Matiz Car, on the other hand, supported the award and contended that as the appellant could not establish the fact of the injuries resulting in permanent disability to the extent of 40%, the compensation of Rs.25,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case. Learned counsel furthersubmitted that as the fact of payment of a sum of Rs.8,500/- was established from the evidence of NAW1 Vijay Glnoria and NAW2 Nawal Kishore Agrawal and was also evident from the document Ex.D/1, the Tribunal has rightly directed adjustment of the amount pf Rs.8,500/- paid by the respondent. 5) Before the Tribunal the claimant though examined: two witnesses including himself (AW/1 Ganesh Ram and AW2 Dilip) in support of his claim, forthe reasons best known to the claimarit, no doctor was examined before the Tribunal to establish the nature of the injuries said to have been sustained by the elaimant in the .,^-.e'iSffl^s-, ^ '••!>. fe, J!i.,3«? ,J :%-"u"::: .!,*'' lllul"-]Jj •"1"° motor accident and the fact that those injuries resulfed in any permanent disability. 6) 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 teddy, reported in (2005) 12 SCC 189, wherein it was obsen/ed 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 C_oyrt commjtted gross errQr jn oyerlQokina the fact that Dr. Sudhakar Reddv's medicat certificate was rejected bv the Tribunal for non-examination of that doctor. The Tribunal.has _determined the Dhysjcal disabjlitv at,1_5 psr cent on the basis ofthe deposition of Dr. K.IVI. Mitra and awarded a iust and fair compensation. The Hiah Court erred in disturbina the same and enhancina ithe compensation, Consequently, we allow this appeal,; set aside the impugned order and restore the award of^the Claims Tribunal. The respondent-claimant is aliowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn." 7) The Apex Court in a recent dictum in the case ofl Kumar alias Raju v. Yudhvir Singh and another, reported in N|]j i3 *'>>.,.^ 2^ t,r. (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 appeliant. On what basis, such a certificate was issued two years after the accident took piace is not known. The author of the said certificate had noLbeen examined. Unless the author of the certificate examined himself, it was_not,adm!SStble in eyidence. Whether the disabilitv at 60% was calcutatedon the basis ofthe provisions of the VVorkm^n's Compensation Act or otherwise is not known. It is aiso 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 ralsed before the Tribunat or the Hiah Court. The Tribunal as atso 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 applicabiiity of the Workmen's Compensation Act which, in our opinion, ex facie has no apptication, the same, in our opinion, cannot be permitted to be raised for the first time." 8) In view of the above quoted dicta of the Apex Court ip the cases of A.P. SRTC v. P. Thirupat Reddy (Supra) and Rajesh Kumar alias Raju v. Yudhvir Singh and another (Suprsj), the medica! certificate and the disabil.ity certificate produced t>y the appellant/claimant before the Tribunal without examining the Doctors who had issued those certiflcates, cannot be taken into consideration for enhancement ofthe compensation inthe case. ;!»" .Wi €Bi&i.<^ ' ^i,. %.&.y^ ?;^sf o4 subbu 9) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal. 10) So far as the direction for adjustment of the amount of Rs.8,500/- from the. compensation of Rs.25,000/- is concerned, the fact of payment of Rs.8,500/- is fully established on the evidence of NAW1 Vijay Ginoria and NAVV2 Nawal Kishore Agrawal, vide compromise dated 13-03-2002 (Ex. D/1). VA/e, therefore, do not find any fault in the finding recorded by the Tribunal that iimount of Rs.8,500/- was paid by the respondent to fhe appellant/ claimant during the course of his treatment and before filina of the claim petition. 11) The appeal filed by the appellanVclaimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. 12) No order as to costs. Sunil KumarSinha Judge Chief Justice