Gujarat High Court Case Information System
Print
FA/3013/1996 3/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3013 of 1996
=========================================================
FAIZ
MOHAMMED NUR MOHAMMED SHAIKH & 2 - Appellant(s)
Versus
ISMAILBHAI
GULABBHAI SHAIKH & 2 - Defendant(s)
=========================================================
Appearance
:
MR
RAJNI H MEHTA for
Appellant(s) : 1 - 3.
MR NW ROZIA for Defendant(s) : 1,
MS
REKHA C TRIVEDI for Defendant(s) : 1,
NOTICE UNSERVED for
Defendant(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 23/07/2008
ORAL
ORDER
Heard
learned advocate Mr. Parikh on behalf of appellant no. ? 1 Faiz
Mohammed Nur Mohammed Shaikh – owner of vehicle, opponent no. 2 ?
Hamidkhan Nawabkhan, driver of vehicle. Though, respondent claimants
served, no appearance is filed by any of them.
The
owner and driver has challenged award passed by Motor Accident Claim
Tribunal at Ahmedabad in MACP no. 397/1987 vide exh 70 dated
15/4/1996. The Tribunal has awarded compensation with a direction
to opponent no. 1 to 3 that they are jointly and severely liable to
pay Rs. 1,42,900/- with 12% interest from the date of filing claim
petition till realizing.
Learned
advocate Mr. Parikh raised contention that Tribunal has committed
gross error in relying upon income of claimants Rs. 3500/-, against
which, there was no evidence from claimant side about aforesaid
income. On the contrary, there was an evidence of claimants to have
income of Rs. 1200 ? 1500/- per month and Tribunal has relied upon
income of claimants of Rs. 1200/-. This fact has been totally
ignored by Tribunal while considering future loss of income of
claimants.
The
Tribunal has relied upon income of Rs. 3500/-, therefore, it amount
to basic error committed by Tribunal. Except that, no other
submission is made by learned advocate Mr. Parikh before this Court.
I
have considered submission made by learned advocate Mr. Parikh and I
have also perused order passed by Tribunal as well as record and
proceeding, which has been brought to the notice of this Court that
this award is almost based on consent between parties as vide ex
65, parties have agreed to take permanent disability at the rate of
50%, which has been taken into account 20% by Tribunal. On that
basis, calculation has been made, which ultimately, comes to Rs.
1,42,900/-. When consent is given by respondent opponents in
determining percentage of permanent disability, meaning thereby that
there is no other legal fight or any legal contention is to be
examined by Tribunal, except to calculate compensation or to work
out compensation on the basis of consent given by both parties.
Therefore,
according to my opinion, contention raised by learned advocate Mr.
Parikh cannot be accepted in view of aforesaid consent given by both
parties vide exh 65, which suggest that matter has been examined by
Tribunal and compensation has been awarded on the basis of consent
of both parties.
Therefore,
this Court cannot interfere in such order, where apparently award
passed on the basis of consent of both parties. Therefore,
contention raised by learned advocate Mr. Parikh is rejected. There
is no error committed by Tribunal, which would require interference
by this Court.
Hence,
there is no substance in the present appeal. Accordingly, present
appeal is dismissed.
The
Tribunal is directed to disburse amount, if any amount is lying with
Tribunal to respondent claimants without any delay. If any amount is
in FDR then same is to be encased and to disburse to respondent
claimants with accruing interest.
(H.K.RATHOD,
J)
asma
Top