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2009 DIGILAW 144 (CHH)

TIJIYA BAI v. SYED AADIL

2009-04-24

R.L.JHANWAR, RAJEEV GUPTA

body2009
ORDER As per Hon'ble Shri Rajeev Gupta, C.J. :- 1. Appellant Smt. Tijiya Bai is seeking enhancement of the compensation awarded by the First Additional Motor Accident Claims Tribunal, Jagdalpur (for short 'the Tribunal') vide award dated 30.03.2000, passed in Claim Case No. 46/98. 2. As against the compensation of Rs. 7,77,500/-, claimed by the appellant/claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by her in the motor accident on 26.06.98, the Tribunal awarded a total sum of Rs.8,000/- as compensation along with interest @ 12% per anmun from the date of filing of the claim petition till the date of actual payment. 3. Shri Vishnu Koshta, learned counsel for the appellant vehemently argued that the compensation of Rs.8,000/- awarded by the Tribunal is too low in comparison to the serious nature of the injuries sustained by the appellant/claimant in the motor accident. 4. For the reasons best known to the appellant/claimant no doctor was examined before the Tribunal 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 disability. 5. 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 Vs. P. Thirupal Reddy, 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 disability to be 45 per cent. The High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. The High Court erred in disturbing 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-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, ifit has not already been withdrawn." 6. The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju Vs. Yudhvir Singh and another, reiterated the same view with the following 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 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 examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis 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 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 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 first time." 7. Now, reverting to the present case, though a medical certificate was produced before the Tribunal about the injuries said to have been sustained by the appellant/claimant in the motor accident, no doctor was examined before the Tribunal to prove the contents of the certificate. 8. In view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC Vs. P. Thirupal Reddy (Supra) and Rajesh Kumar alias Raju Vs. 8. In view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC Vs. P. Thirupal Reddy (Supra) and Rajesh Kumar alias Raju Vs. Yudhvir Singh and anther (Supra), the certificate produced by the appellant/claimant before the Tribunal in the absence of examination of the Doctor issuing that certificate is neither admissible in evidence nor can be taken into consideration as substantive evidence for enhancement of the compensation. 9. For the foregoing reasons, we do not find any scope for enhancement of the compensation awarded by the Tribunal. 10. The appeal filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. 11. No order as to costs. Appeal Dismissed.