UDICATUREAT BILASPUR v. RE^PONDENTS

Shri Simil Sahu, Ad^ocate, for the appellai-it. Heard on I.A. No. 1, application for condonation of delay of 94 days in filing tlie apj()eal. On due considerati4n, I am satisfied that the appellant has succeeded in explaini|ig the delay caused in preferriug the appeal. Therefore, tlie appl|cation is allowed. Delay caused in filing the appeal is condoi-^ed. Heard on admissionl

Appellant/ clamian|: is seekiiig enhancenieut of the compensation awarded Claims Tnbunal, Dhamt^ri py the Additional Motor Accident (for short "the Tribunal?i) vide award dated 27-7-2007 p^ssed in Claim Case No. 545/2004.

As against the com^ensation of Rs. 11,76,000/- claimed by the appellant/ cloim^iit by filing a claim petition under the injuries Section 166 of the Mc^tor Vehicles Act sustained by hhn ia fhe| motor accident on 13-5-2004, the Tribunal awarded a total 6% from fhe date of applicj ^um of Rs.25,000/- witfa interest @ |ation as compensation. ^TI^T^ ^^ ^^n^m^Ri^m^—FS/95—11/.2G08—1,00,009. -3-5c( ^jt^ld'''?, ^Tlri^<l^, f<Bt<rtl^3'[ •m^ff'^1?N? ••^200 g^T-q^FC^5^1) 3?i^R^'f^W •CTISn^IsPWF ^^TW"5srf^3?T^r ^lfepN W^ ^ It^ ^R?R •^3TfW3^T 4 Leamed )r the appellant vehemently ai^ued tliat tfae Tribunal has er|:ed in awarding low compensation of Rs.25,000/- only, where^s the appellaiit/ claimant sustained serious injuries in the m^tor accident.

For tlie reasons be^t known the appeUant / claiinant no doctor was examined b^fore the Tribunal to establish the natiire of tlie injuries s^ iid to have been sustained by the appellant/ claimmit in tljie motor accident aiid the fact that those mjuries resiilted iii 6. The question whettjer the medical certificate produced by the claiaiant before t^ie Tribunal wifliout examining the Doctor who issued fhe |certificate caii be reMed upon as substantive evidence for t|ie assessment of tlie compensation came up for consideration| ibefore ti.ie Apex Court in the case of |Reddy, reported in (2005| 12 SCC A.P. SRTC v. P. Thimpalt 189, wherein it was obsen|ed in para 6 as under : ^ny permaaent disability. "

After hearu(ig learned coimsel for the respondent-claims|nt who made an attempt to support the or^er of the High Court, we find that there w^s no justification for the High CoLut to rely{on the disabilit^r certificate issued by Dr. Sud|iakar Reddy and enhance the compensation | by treating the injury as permanent disabil^ty to be 45 per cent. The High Court errQr_Jn cosimitted ^T^^ ^^ ?[^TO54^^Rt^lt^—I7S/95—11/200-^—1 ,00,000. •3'^f ^it^!d<LI, <^xi1^4Ko, [^Kni^y <nwis »»*ii<i» •^200 ^TI^T rf^K (^(^^) 311^1 ^T i<tlioh Wi? ^H^T 5»»*iic(» lF<ffWTtf^TW^T cbl^fd4)4 'W^ff tf 'ft%t '^R?R ^^RR 3??^r that Dr. Sudhakar overlooking the fact Reddv's medical certiflcate was rejected by fot non-examination of that the Tribunal doctor. The Trf zmal has^ determined_tee physical disabilitt^ at 15 per cent on the basis of the depositida of Dr. K.M. Mitra and awarded a iust tod fatr couipensation. The High Court erred! in disturbing fhe same and enhancins the c' inipensation. Consequently, we allow this set asicle the inipugned order and resto4 the award of the Claims Dondcut-claiinant is allowed Tribmial. The amount of compensation to withdraw thd ^ibuual^ if it has not already awarded by the ^ been withdrawn/I The Apex Court in ^ rccent dictum in the case of resbondcut- ap^eal

Kumar alias Rajii v. Yu^hvir Siagh aad aaother, reported in (2008) 7 SCC 305, following observations in Ireiterated the sanie view with the t?ara 11 : whether certificate "11. The cerftfficate in question in tliis ;d after two years. It is not case was obtain^c the Civil Surgeon ofthe known as to whefl- hospital treated | the appellant. On what was issued two years basis, such a took place is not known. after the acciderft; said certificate had not The author of t}ie been examined. Unless the author of the it was not certificate examjned hiinsetf, adiiiissible [was calculated on the basis disability at 60% fhe Workmen's .bns provisi evidence. Whether W^T^ ^^ ^Ti^<T<^Rr^N—FS/95—11/2008—l ,00,000. "^^ ^it^ld^ ^Tll^'t^ f®l<^S<H^< 'sm^Tiim^ •'^200 3TI^?I-q^T(rta<^f) .(irafe^-W^f-^ 1^^-^R?R it? 3tfm 3R1^T Compensation ^ ct or otiienvise is not known. It is also not kbo%Tn as to whether he was .ue such a certificate. It even competent to iss does not appemt tllat the contentions reised before us had ^itiier been raised before the Ir . 3 |High Court. The Tribunal as Tribunal or the also the Higyh C( |)Urt, therefore, proceeded on |)rought on record by the the materials tice of any contention having parties. In absei been raised ta i^gard to the applicability of the Workmen's ^ompensation Act which, in our opinion, ex facie has no application, the saine, in our opitiion, caiinot be peniiitted to be raised for the Elrst time.9?

In this case, fhe ap^ellant has not proved disability. It is ly days the appellant remained in not proved as to how m hospital. It is also not {|roved as to how much amoi.int he |lierefore, considering tiie facts aiid spent ui treatinent and, ;, particularly when the doctor has not been examined to p^-ove the mjmy and certificates, aii aniouut of Rs. 2 5,000/- |ias beeu awarded as compensatiou t.o the claimaiit, circumstances of the cas]

In view of the abov^ quoted dicta of the Apex Court in the cases of A.P. SRTC ^. P. Thirupal Reddy (Supra) aiid Rajesh Kumar alias Raj|ii v. Yudh^ir Sia^i and aaother (Supra), the ceilificate pi|oduced before the Tribunal m the absence of examination ofjthe Doctor issuing the certificate is ^^^ ^^ 3T^n-^ri^Ht^f^—FS/95—l 1 / 2008—1,00,000. ^''^3^^: i!l ' t '^\ l-'.. "^"l I '%.^^' ^-^•^.^ .^^^ "3'SI "41'41d<4, ^'H^Ko, is«ni-M1< 'WIWiR^W ••^200 ^?T1(T?W (^t^<^) s?i^T^?^ri^ ^^T 3?!^?T ^"Rl^ ^RHW^ter 317^1 ^N^PN-WRTf ^-tt<^ Tf^R ^3?RyH3?1^T svidence nor can be taken into jtive evidence for assessment of the neither admissible in consideration as substad compensation in the casej 10. For the foregoing r^asons, enhancement of the comp^nsation awarded by the Tribmial.

The enhancement of the comJ3ensation, tlierefore, is Mable to be dismissed and is hereby djsmissed.

No order as to costs. 1 I do not find any scope for appellaiit/claimant. appeal Sd/- N. K. Agarwal Judge 91 >T;rfl^ ^^ 5T^j[r^^<T^RT^TR—FS/95—11/2008—1,00,000.