Tetki Bai Lahre v. Roopchand Yadav

: M^ Somshukla Sarkar, counsel forthe appeilant. Shri Shivendu Pandya, counse! for respondents No.1 & 2. Shri Abhishek Sinha, counsel for respondent No.3. ORDER (20InAu9Ust,2008) &th The following order of the Court was passed Rajeev Gupta, C.J. Learned counsel the parties are heard on MCP No. 1305/2006, a petition for condonation of delay In filing the appeal. • / ^l'l 1€ Hi1!'1 •c: 2) On due consideratson of the submissions of learned counsel for the parties and the grounds taken in the application, we are satisfied that the appellant has succeeded in showing sufficient cause for the delay in filing the appeai. 3) MCP No.1305/2006, therefore, is allowed and the deiay in filing the appeal is hereby condoned. 4) 5) Learned counsel for the appellant is heard on admisslon. The appellant is seeking enhancement of the compensation awarded by the Third Additionai Motor Accidents Claims Tribunal, Raipur (for short, "the Tribunal") vide award dated 21.04.2005, passed in Clalm Case No.41/2004. 6) As against the compensation of Rs.14,00,000/-, claimed by the appeilant / claimant by filing a ciaim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by her in the motor accident on 11.11 .2003, the Tribunal awarded a total sum of Rs.30,660/- as compensation along wlth interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 7) Learned counsel for the appellant vehementiy argued that the Tribunal has erred in awarding low compensation of Rs.30,660/- only, though the appetlant/claimant sustained multiple serious injuries including fractures in the motor accident resulting in permanent disability to the extent of 60%. 8) From para 7 of the impugned award we gather that though a disabitity certificate (Ex.P/41) was produced by the daimant before the Tribunal, for the reasons best known to her, no doctor was B ff^J/ \y ,^- .L examined to establish the nature of the injuries said to have been sustained by the appellant/claimant in the motor accident and the fact that those injuries resulted in any permanent disabiiity. 9) The question whefher 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 theassessment of the compensation came up for consideration before the Apex Gourt In the case of A.P.SRTC Vs P. ThirupaE Reddy reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under: "6. After hearing learned counsel respondent - claimant who made an attempt to support the orderofthe 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 percent. The High Court committed gross 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 Dhvsical disabilitv at 15 per 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 enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-cSaimant is allowed towithdraw 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 305, relterated the same view with the foilowing 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 Clvil Surgeon of the hospital treated the appeliant. On what basis, such a certificate was issued two years after the accident place is not known. certificate had not been examined. Unless the The author of the said • -c author of the certificate examined himseif. it was not admissible in evidence. Whetherthe disability at 60% was calculated on the basis of 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. Jt even does not appear that contentions raised before us had either been raised before the Tribunal orthe High Court. The Tribunal as also the High Court, therefore, proceeded on the materiats brought on record by In absence of any contention having the parties. been raised in regard to the appllcabiilty of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permltted to be raised for the first time." 11) In view of the above quoted dicta of the Apex Court in the cases of A.P.SRTC Vs P. Thirupal Reddy (supra) Rajesh Kumar aSias Raju Vs Yudhvir Singh and another (supra), the medical certificate disability certificate produced appellant/ciaimant before the Tribunal without examining the Doctors who had issued those certificates, 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 compensationawarded by the Tribunal. •n 13) The appeal, filed by the appellanVclaimant for enhancement of the compensation, therefore, is iiable to be dismissed and is hereby dismissed summarily. Sd/- ChiefJustice Sd/- Sunil Kumar Sinha Judge <..„