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FA/228920/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2289 of 2008
With
FIRST
APPEAL No. 2290 of 2008
=========================================================
JAYSHREEBEN
VENILAL PATEL - Appellant(s)
Versus
CHOTTUBHAI
PARSOTTAMBHAI PATEL & 2 - Defendant(s)
=========================================================
Appearance
:
MR
AMIT N PATEL for
Appellant(s) : 1,
NOTICE SERVED for Defendant(s) : 1,
MR AMIT
PATEL, AGP for Defendant(s) : 2,
MS MEGHA JANI for Defendant(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 26/09/2008
ORAL
ORDER
1. Heard
learned advocate Mr. Amit N. Patel appearing on behalf of appellants,
learned AGP Mr. Amit Patel appearing on behalf of respondent No.2 ?
State Authority and learned advocate Ms. Megha Jani appearing on
behalf of respondent No.3 ? Insurance Company.
2. These
two appears are filed by appellants ? claimants for enhancement on
the ground that disability certificate which has been produced by
claimant before Claims Tribunal though advocate of the Insurance
Company has accepted it and not awarded any amount of compensation by
Claims Tribunal. Therefore, according to him, Claims Tribunal has
committed gross error in awarding any compensation on the basis of
certificate of permanent disability given by Doctor. Except that,
learned advocate Mr. Patel for appellants has not made any other
submissions before this Court in both appeals.
3. I
have considered the submissions made by all the learned advocates
appearing on behalf of respective parties. The discussion in respect
to present appellant ? Jayshreeben is made at Page 12 Para 24 that
certificate of permanent disability was produced by claimant vide
Exh.34/1, where, 15% disability is assessed by Doctor, but, in
certificate which kind of permanent disability is received by
claimant is not mentioned and merely receiving injury in vehicular
accident is not enough to have the certificate of permanent
disability upto 15%. According to Claims Tribunal, whatever injury
mentioned in disability certificate is not in accordance with primary
injury received by claimant. The applicant has reduced disability
from 15% to 7.5% by Exh.66 purshis, but, Claims Tribunal has come to
conclusion that looking to primary injury received by claimant where
there is no permanent disability is found from claimant received in
the accident. No doubt, advocate of Insurance Company has accepted
7.5% disability to be considered, but, ultimately, Claims Tribunal
has independently examined the issue that whether claimant has
received permanent disability or not. The Doctor was not examined,
therefore, this certificate was not proved before Claims Tribunal.
The certain discharge papers have been produced by Claims Tribunal
from Safi Hospital and Claims Tribunal has also considered that there
is no fracture of head injury and only on the leg C.L.W. injury is
found which cannot consider to be a permanent disability and
therefore, Claims Tribunal has not awarded any amount of compensation
in favour of claimant in respect to medical certificate which has
been produced by claimant before Claims Tribunal vide Exh.34/9.
4. Similarly,
in case of Venilal ? father of Jayshreeben, certificate of 15%
disability given by same Doctor Khatri vide Exh.50/2 which has been
also examined by Claims Tribunal while considering the case papers
Exh.52, where, there is no fracture on 4th and 5th
rib of claimant. Therefore, considering that Doctor was not examined
by claimant and by purshis 67, 15% disability is considered 7.5% with
consent of other side, but, Claims Tribunal has examined the matter
independently and according to Claims Tribunal, primary injury which
has ben received by claimant where there is no fracture found on the
rib by Claims Tribunal considering the papers Exh.52.
5. Therefore,
according to my opinion, Claims Tribunal has rightly examined the
matter while considering the certificate of both cases in absence of
Doctor. The Claims Tribunal has examined the case papers and from
case papers, there was no permanent disability found by Claims
Tribunal. Accordingly, no amount has been awarded for such permanent
disability which cannot consider to be erroneous and therefore,
according to my opinion, Claims Tribunal has rightly not awarded
compensation for permanent disability which claimed by claimants in
both the cases.
6. Therefore,
there is no substance in the present appeals. Accordingly, both the
appeals are dismissed.
[H.K.
RATHOD, J.]
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