Kamal Kumar Kalle v. Sita Ram Patel

ORDER (14'"February,2012) The following order of the Court was passed Rajeev Gupta, C.J. r AC.No. 30 of 2012 Shri Hemant Gupta, learned counsel for the appellant heard on I.A.No.01/2012, an application 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 application, we are satisfied that the appellant has succeeded in showing sufRcient cause for the delay in filing the appeal. 3) I.A.No.01/2012, therefore, is allowed and the delay in filing the appeal is hereby condoned. 4) Shri Hemant Gupta, learned coun^el for the appellant heard qn admission. 5) Appellant/ Claimant Kamal Kumar Kalle seeking the compensation awarded by the Second enhancement of Additional IVIotor Accident Claims Tribunal, Bilaspur (for short 'the J' Tribunal') vide award dated 13.05.2011, passed in Claim CaseNo.258/2011. 6) As against the compensation of Rs.5,86,000/- claimed by the appellant/ claimant by filing a claim petition under Section 166 of the Motbr Vehicles Act for the injuries sustained by him in the motor accident on 21.02.2008, the Tribunalawarded a total sum of Rs.22.500/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 7) Shri Hemant Gupta, learned counsel the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.22,500/- only though the appellant/ claimant r .A.C.No.30of2012 sustained multiple serious injuries including fractures in the motor accident resulting in permanent drsability. 8) For the reasons best known to the claimant, no doctor was examined before the Tribunal for establishing the number and nature of the injuries said to have been sustained by the claimant 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 claimant before the Tribunal without examining the Doctor who issued the certificate can be relied upon.as substantive evidence tpe assessment of the compensation consideration before the Apex Court in the case of A.P. SRTC v. P. Thirupal 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 suppori: 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. committed aross error The^Higii Court Qverlookinfl that Dr. Sudhakar Reddv's medical ceri:ificate was reiected bv the Tribunal non-examination^if that doctor. The Tribunal has determined the physical disabilitv at 15 per cent on the basis of the deposition of Dr. K.M. 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 r f- ^ sgafe. ^y"'!^%7.Tt<???S:<' I.A.C.No.30of2012 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 : "11. The certificate in question in this case was It is not known as to whether the obtained after two years. Civil Surgeon of the hospital treated the appellant. On what 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_examjned^ Unless_the_aythor of the_certificate_examined_himself, it was not admissible in evidence. Whether the disability at 60% was calculated 'Uie on- basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also ndt 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 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 in our opinion, ex Workmen's CompensationAct which, "facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time." 11) The medical certificates produced by the claimant before the Tribunal without examining the doctors who had issued those certificates, in view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thirupal Reddy (Supra) and [ MAC.No. 30 of 2012 ^ Rajesh Kumar alias Raju v. -Yudhvir Singh and another (Supra), cannot be taken into consideration for enhancement of the compensation ih 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/- Chief Justice Sd/- j R.N. Chandrakar Judge i^ea,es^ j 'y'^' <f v i>-. r