DIVISION BENCH v. Gurbir Singh

Judgment

3. Gurbir Singh, S/o. Kashmir Singh Jat, R/o. Village & Post Sulpur Kalan, P.S. Jadiyalanguru, District Amritsar (Punjab)

Smt. Baljit Kaur, S/o. Balvinder Road, Singh, Faridabad, Faridabad (De!hi) 7-6 M. District R/o. insurance Through National Company : Divisiona! Limited, Manager, Divisional Office, Taha Compfex, Vyapar Vihar Road, Tahsil and District Bilaspur (C.G.) MiSCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTORVEHICLE ACT. 1988 Present: Shri Avinash Chand Sahu, appel!ant. learned counsei for the ORDER (10th September,2009) The following order of the Court was passed Rajeev Gupta, C.J.: (@ Shri Avinash Chand Sahu, learned counsej for the appeltant is heard on i.A. No. 01/2009, an application for condonation of delay in filing the appeat.

2. On due consideration of the submissionsof leamed counsel for the appeilant 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. I.A. No. 01/2009, therefore, is allowed and the delay in ftling the appeai is hereby condoned.

4. Shri Avinash Chand Sahu, learned counsel for the appellant is heard on admission.

5. Appeilant Ghanshyam Bunkar is seeking enhancement of the compensation awarded by the Sixth Additional Motor Accidents Claims Tribunal, Bilaspur (for short 'the Tribunal') vide award dated

23.09.2008, passed in Ciaim Case No. 72/2007.

6. As against the compensation of Rs.9,00,000/- claimed by the appeilant/ daimant by filing a claim petition under Section 166 of the Motor Vehicles Act, for the injuries sustained by him in the motor accident on 10.03.2006, the Tribunal awarded a total sum of Rs.50,000/- as compensation along with interest @ 9% per annum from the date of filing of the claim petition till the date of actuai payment. '

7. Shri Avinash Chand Sahu, iearned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.50,000/- only though the appellanV claimant sustained multiple serious injuries including fractures in the motor accident, resulting in permanent disability.

8. Before the Tribunal, the claimant examined himself as AW1 in support of his claim. For the reasons best known to the appeliant/ claimant, no doctor was examined before the Tribunal to establish the nature of the injuries said to have been sustained by the appelianV ciaimant in the motor accident and the fact that those injuries resulted in any permanent disability.

9. The question whether the medical certificate produced by the ciaimant 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 vs. P. Thirupai Reddy, reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under: "6. After hearing learned counset respondent-ctaimant who made an attempt 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 Court committed overiooklna the fact that Dr. Sudhakar Reddv's medica! certificate was reiected bv the TribunaS for non-examination of that doctor. The Tribuna! has determined the phvsical disabilitv at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and av^arded a iust and fair comDensation. The HIah Court erred in disturbina the same and enhancina the compensation. Consequentiy, we allow this appeai, set aside the impugned order and restore the award of the Ciaims Tribunai. The respondent- is allowed to withdraw the amount of ciaimant ^-^;^^S.^^^.^^^-^W^^.^,^.^».^& 4 @ compensation awarded by the Tribunal, if it has not aiready been withdrawn."

10. The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju vs. Yudhvir Singh and anofher, reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11 : "11. The certificate in question in this case was It is not known as to obtained after two years. whether the Civit Surgeon of the hospital treated the appdlant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the sasd certificate had not been examined. Unless the author of certificate examined himseif. it was not admissible in evidence. Whether the disability at 60% was caiculated on the basi's of the 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. It even does not appear that the contentions raised before us had either been raised before the Tribunai or the High Court. The Tribunai as also the High Court, therefore, proceeded on the materiais brought on record bythe parties.In absence of any contention having been raised in regard to the appilcability of in our the Workmen's Compensation Act which, opinion, ex facle has no appilcatlon, the same, En our opinion, cannot be permitted to be raised for the flrst time."

11. In view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC vs. P. Thirupal Rsddy (Supra) and Rajesh Kumar alias Raju vs. Yudhvir Singh and another (Supra), the medical certificates produced by the appellanV claimant 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. Ifyl

12. We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal.

13. The appeal filed by the appelianV claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed summarily. Sd/- Chief Justice Sd/- N.K. Agrawal Judge ^L