Chaina Bai aiias Jaina Bal v. Rajkumar aiias Raju Dubey

Rajkumar aiias Raju Dubey, aged about 35 years, son of N.P. Dubey, resident of Mankdika Ghat 10/203, P.S. Chowk Qtr. No. Varanasi Distt. Banarah U.P. resided Firangipara presentiy Kota, P.S. and Tahsii Kota, DIstt. Biiaspur (C.G.) (Driver of 12/7519) the Tractor No. U.P.

2. Sandeep Tomar, aged about 21 years, son of iate Satyaveer Singh Tomar. 2A. Sumit Tor son of late Satyav^er Singh Tomar, aged about 18 years, Respondents No. 2 and 2A are the resident of qtr. No. C-3/146, Janakpurs, New De!hi, U.P. (Reaistered owner of Tractor No. U.P. 12/7519)

3. '\ through The Oriental insurance Company Branch LImited, Manager, 9 Community Centre Mayapuri Phase - 1, through the Oriental Divisional Manager, Insurance Company Limited, front of 1-iigh Court of C.G. Biiaspur (C.G.) (Insurer of the Tractor No. U.P. 12/7519) -w^ IVIISCELLANEOUS APPEAL UNDER SECTfQN 173 OF TtjE SVIQTORVEHICLE ACT. 1988 Present: Shri Sudhir Kashyap, appeSIant. learned counsel ORDER (14m September, 2009) The foiiowing order of the Court was passed by Rajeev Gupta, C.J.: Shri Sudhir Kashyap, learned counsel for the appeilant is heard on admission.

2. Appeliant Chaina Bai @ Jaina Bal is seeking enhancement the compensation awarded by the Eighth Additionai Motor Accidents Claims Tribunai, Bilaspur (for short 'the Tribunal') vide award dated 27.02.2007, passed in Claim Case No. 37/2006.

3. As against the compensation of Rs.7,40,000/- claimed by the appellant/ claimant by titing a claim petition under Section 166 of the Motor Vehicies Act, for the injuries sustained by her in the motor accident on 22.05.2004, the Tribunal awarded a totai sum of Rs.40;000/- as compensation along with interest @ 8% per annum from the date of filing of the claim petition till the date of actuat payment.

4. Shri Sudhjr Kashyap, learned counsel for the appellant vehemently argued that the Tribuna! has erred in aw<arding iow compensation of Rs.40,000/- oniy though the appellant/ claimant sustained multiple serious jnjuries inciuding fractures in the motor accident, resulting in permanent disability.

5. For the reasons best known to the appellant/ ciaimant, no doctor was examined before the Tribunai to estabiish the nature of the injuries said to have been sustalned by the appeliant/ ciaimant in the motor accident and the fact that those jnjuries resulted in any permanent disability.

6. 'The question whether the medicai certificate produced by the ciaimant before the Tribuna! 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 vs. P. Thirupai Reddy; reported in (2005) 12 SCC 189; wherein it was observed in para 6 as under: "6. After hearing iearned counsei respondent-ciaimant who made an attempf support the order of the High Court, we find that there was no justiflcatlon for the High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compensatlon by treatjng the injury as permanent disability to be 45 per cent. committed The Hiah Court overiookina the fact that Dr. Sudhakar Reddy's medlcai certificate was rejected by the Tribunal for non-examjnation or that doctor. The Tribunal has determined the phvsicai djsabilltv at 15 per centon the basis of the depositjon of Dr. K.M. Mitra and awarded a iust and fair compensatjon. The Hiah Court erred in disturbina the same and enhancing the compensatlon. Consequently, we a!iow this appeai, set aside the impugned order and restore th6 award of the Ciaims Tribunai. The respondent- is aliowed to withdraw the amount or ciaimaint compensation awarded by the Tribunai, if it has not aiready\been withdra'wn." -. ;\

7. The Apex Court in a recent dictum in the case of Rajesh Kumar aSias Raju vs. Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the fodowing observations in para 11 : "11. The certificate in question in this case was obfained after two years. is not known as to !t whether the Civil Surgeon of the hospital treated the appeilant. On what basis, such a certificate was issued two years after the accident took place ig n6t known. The author of the said certificate had not been examined. Unless the author of certificate examined himself. it was not admissibie in evidence. Whether the disabiiity at 60% was caicufated on the basis of the provjsions of the Workmen's Compensation Act or otherwise is not it is aiso not known as to whether he was known. competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribuna! or the High Court. The Tribuna! as aiso the Hlgh 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 facle has no applicatlon, the same, Sn our opinion, cannot be permitted to be raised for the first time."

8. in vlew of the above quoted dicta of the Apex Court in the cases of A.P. SRTC vs. P. Thirupal Reddy (Supra) and Rajesh Kumar alias Raju vs. Yudhvir Singh and another (Supra), the medicai certificate produced by the appeliant/ claimant before the Tribunai without examining the Doctor who had issued the said certificate, cannot be taken into consideration for enhancement of the compensation'awarded by the Tribunai.

9. We, therefore, io not find any scope for enhancement of the compensation awarded fe?y the Tribunal. "\ f y1 ^N»

10. The appeal filed by the appeilanV claimant for enhancement of the compensation, therefore, is liabie to be dismissed and is hereby dismissed summarily. _——___ Sd/- Chief Justice Sd/- N.K. Agarwal Judge '\