Kumari Tuleshvrari Verma v. Ashok Kumar

Shri Jeet Patel, counsel for the appellant. (11th September, 2009) The following order of the Court was passed Rajeev Gupta, C.J. !»bssaa» ^si"'1';' ''•rite '%s§*% Elasia ^;.;y't i5^< Shri Jeet Patel, learned counsel for the appellant is heard on i.A. No.01/2009, an application for condonation of the delay in flling the appeal. 2) On due consideration of the submissions of learned counsel for the appellant and the grounds taken in the application, we are satisfied that the appellant has succeeded in showing sufficient »;*aWri!*s^' cause for the delay in fiting the appeal. 3) I.A. No. 01/2009, therefore, is allowed and the delay of 35 days in filing the appeal is hereby condoned. 4) Shri Jeet Patel, learned counsel for the appellant is heard on admission. 5) Appellant Kumari Tuleshwari Verma is seeking enhancement of the compensation awarded by the Second Additional Motor Accidents Claims Tribunal, Baloda Bazar (for short 'the Tribunal') vide award dated 28.03.2009, passed in Claim Case No.42/2008. 6) As against the compensation of Rs.10,00,000/- claimed by the appellanU 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 24.06.2008, the Tribunal awarded a total sum of Rs.30,000/- as compensation along with interest @ 6% per annum from the date of filing of the ciaim petition tsll the date of actual 7) Shri Jeet Patel, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.30,000/- only though the appellant/ claimant sustained multiple ,1 i!^' ^ serious injuries including fractures in the motor accident, resulting in permanent disability. 8) Though the claimant examined two witnesses including herself (Aw-1 Kumari Tuleshwari Verma and AW-2 Bharat Lal) in support of her claim before the Tribunal, for the reasons best known to the appellanU claimant, no doctor was examined to establish the nature of the injuries said to have been sustained by p- the appellanV claimant in the motor accident and the fact that those injuries resuited 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 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 v. P. ThirupaS Reddy, reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under: "6. After hearing learned counsel for the 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 disability certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disabiltty to be 45 per cent. The Hiah Court committed aross error in overlookina the that Dr. Sudhakar Reddv's medical certificate was rejected bvihej'nbunai for non-examination of that doctor. The Tnbunal has_cletermined the phvsical disabilitv at 15 per cent on the basis^f the deposition of Dr. K.M. Mitra and awarded a iust and fair compensation. The Hiah Court in disturbina_ the_ same _and_enhancina the ___ tei' ^. / \. compensation. Consequentiy, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is allowed to withdraw 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 v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11: It "11. The certificate in question in this case was obtafned after two years. is not known as to whether the Civit treated the appellant. On what Surgeon of the hospital basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissibie in evidence. Whether the disabllity at 60% was calculated on the basis of the provisions of the Workmen's Compensation is also not known as to Act or otherwise is not known. It 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 Tribuna! or the High therefore, The Tribunal as also the High Court, Court. proceeded on the materia!s brought on record by the In absence of any contention having been raised in parties. regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the Tirst time." 11) In view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thirupal Reddy (Supra) and Rajesh jhtJSjl.^'iB3'' •^, Kumar alias Raju v. Yudhvir Singh and another (Supra), medical certificates produced by the appellant/claimant before the Tribunai without examining the Doctors who had issued those certificates, cannot be taken intq 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. ISIBBB-tilt 13) The appeal filed by the appellant/ claimant for enhancement of the compensation, therefore, is llable to be dismissed and is hereby dismissed_symmarUy... —- Sd/- ChiefJustice Sd/- N. K. Agarwai Judge