Bhavna Dubey vs Vijay Kumar on 4 August, 2010

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                   M.A. No. 2890/2009

04/08/2010

Appellant by Shri Priyank Khandelwal, Advocate
Office reports that present appeal is barred by 9
days. An application for condonation of delay has also
been moved.

Before adverting to the application for condonation
of delay I thought it appropriate to look into the merits of
the case. The Tribunal has awarded a sum of Rs.
3,26,000/- treating it to be a case of 50% of disability. The
Tribunal relied upon the document Ext. A-21 which was
certicate.

It is contended on behalf of the appellant that the
appellant has examined by Dr. U.D. Saxena PW-5 who has
assessed the disability up to the extent of 65%. The
Tribunal did not place reliance on the statement of Dr.
U.D. Saxena on the ground that this doctor has not
examined and initially treated and the papers relating to
the earlier treatment were not seen by this doctor.
Certain documents filed before the Tribunal were shown
which were not certified copy of such papers. It is to be
seen in the present case the doctor who intially treated
has not been examined.

The Apex Court in Rajesh Kumar Alias Raju Vs.
Yudhvir Singh And Another, 2008(7) SCC 305 in
paragraph 11 has held as under:-

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 ye4ars 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
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the contentions raised before us had either been raised
before the Tribunal or the High Court. The Tribunal a 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.

Thus I do not find that the Tribunal is wrong in any
way.

In the application for condonation of delay it is stated
that the appellant is the sole earning member of the family
and due to the injuries sustained by the claimant she has
become unable to work and earn her livelihood.

In view of the aforesaid, I find any sufficient cause for
condonation of delay hence delay stands condoned.

Appeal stands dismissed.

(R.K.GUPTA)
Judge
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