Angad Dewangan Son of Panchram v. Vishwanath Kewat Son of Vikram Kewat

'Shri Prakash Mishra, counsel for the appelSant. N|pne for respondents No.1 & 2. ShYi Shreekumar Agrawal, Senior Advocate with Shri Raj Awasthi, cqunse! for respondent No.3. IK: ^^^' El: i4i^ ORDER (14m September, 2009) / The following order of the Court was passed Rajeev Gupta, CJ. Learned counsel for the parties are heard on IAN o.1/2009, a petition for condonation of the delay in filing the appeal. 2) On due consideration of the submissions of learned counsel for the appellant and the grounds taken in the apptication, we are satisfied that the appellant has succeeded in showing sufficient cause for the delay in filing the appeal. 3) 1A No. 1/2008, therefore, is allowed and the delay in filing the appeal is hereby condoned. 4) Shri Prakash Mishra, learned counsel for the appellant Is heard on admission. 5) Appellant Angad Dewangan is seeking enhancement of the compensation awarded by the Additional Motor Accident Claims 'the Tribunal') vide award dated Tribunal, Bhatapara (for short,

09.01.2007 passed in Claim Case No.11/2006. 6) As against the compensation of Rs.4,00,000/-, claimed by the appellant / claimant by filinga claim petition under Section 166 of the Motor Vehides Act for the injuries sustained by him in the motor accident on 25.02.2005, the Tribunal awarded a total sum of Rs.50,000/- as compensation along wlth interest @ 9% per annum from the date qf filing of the claim petition till the date of actual payment. 7) Shri Prakash Mishra, learned counsel for the appellant vehementiy argued that the Tribunal has erred in awarding low compensation of Rs.50,000/- only, though the appeilant/claimant sustained multiple serious injuries including fractures in the motor accident resulting in permanent disability. 8) Before the Tribunal, the claimant examined as many as three witnesses (AW/1 Narayan Singh, AW/2 Angad Dewangan and AW/3 Ramchand Sahu) in support of his claim.

For the reasons best known to the appellanVclaimant, no doctor was examined before the Tribunal to establish the nature of the injuries said to ^^ have been sustained by the appellanVclaimant in the motor accident and the fact that those injunes resulted in any permanent disability. 9) The question whether the medical 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 cpmpensation came up for considjeration before tJie 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 counsei 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 dis^bility certificate issued by Dr Sudhakar Reddy and enhance the compensation by treattng the injury as permanent disability to be 45 percent.

The Hiqh Court committed qross error in overiookina the fact that Dr Sudhakar Reddv5s medical certificate was reiected bv the Tribunal for non-examination of that doctor. The Tribunal has determined the Dhvsical disabjtitv at 15 oer cent on the basis of the deposition of Dr KM Mitra and awarded a iust and fair compensation. The Hiah Court erred in 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 w'rthdraw 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 Yudhvir Singh and another, reported in (2008) 7 SCC 30S, reiterated the same view with the following observations in para 11: "11. The certificate in question in this case was obtained after two years. is not known as to whether the Civil Surgeonof the hospital treated It the appellant.

On what basis, such a certificate was issued two years after the accident place is not known. certiflcate had not been examined. Unless the The author of the said author of the certificate examined himself. it was not admissible in evidence. Whether the disabiiity at ^0% was calculated on the basis of provi^ions of the Workmen's Compensation Act It is also not known as or oth^rwise is not known. to whether he was competent to issue such a certificate. It even does not appear that contentions raised 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 applicatiQn, the same, in our opinion, cannot be permitted to be ralsed for the flrst time.

" 11) In view of the above quoted dicta of the Apex Court in the ^NNN^ cases of A.P.SRTC Vs P. Thirupal Reddy (supra) Rajesh Kumar alias Raju Vs Yudhvir Singh and another (supra), the medical certificate and the disability certificate produced by the claimant before the Tribunal without examining the Doctors who had issued those certiflcates, cannot be taken into consideration for enhancement of the compensation in the case. 12) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal. 13) The appeal filed by the appellant / claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed summarily. ——-— Sd/- CNef Justice Sd/- N.K. Agarwal Judge