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FA/2684/2008 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2684 of 2008
=========================================================
PARESHKUMAR
RAVISHANKER PATEL - Appellant(s)
Versus
IJJATKHAN
MOHAMMADKHAN PATHAN & 1 - Defendant(s)
=========================================================
Appearance
:
MR
TULSHI R SAVANI for
Appellant(s) : 1,
NOTICE SERVED for Defendant(s) : 1,
MS KIRAN
D PANDEY for Defendant(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 14/10/2008
ORAL
ORDER
Heard
learned advocate Mr. TR Savani on behalf of appellant, learned
advocate Ms. Kiran Pandey appearing for respondent no. 2. Notice has
been served to respondent no. 1, but no appearance is filed by
respondent no. 1.
The
appellant original claimant filed present appeal for enhancement of
award passed by claims Tribunal. The claims Tribunal has awarded
Rs. 3,89,000/- being a compensation with 7.5% interest on 11/7/2007.
The appellant has made claim of Rs. 9,00,000/- for a compensation.
The
fact of present case is that accident took place on 26/12/1996 while
he was driving his scooter met with an accident with bus owned by
respondent no. 2. At the relevant time, claimant was aged about 36
years and on account of injury sustained by appellant due to
accident he was removed to Anad Orthopedic hospital for treatment at
Nadiad. Due to said accident, he has sustained permanent disability
as he remained in bed and was not able to do his daily work.
Therefore,
learned advocate Mr. Savani submitted that claims Tribunal has
committed gross error in assessing compensation in favour of
claimant. He submitted that compensation which is awarded by claims
Tribunal is in lower side. The claims tribunal has committed error
in assessing 36% permanent disability when in medical certificate it
was certified 49% by Doctor Mr. Shah, which also supported by
medical certificate produced before claims Tribunal.
He
submitted that total period of remaining without work was more than
one year, even though that much amount is not given by tribunal for
loss of actual income. Therefore, according to him claims Tribunal
has committed error. The present appeal is filed for enhancement of
awarded compensation.
Learned
advocate Ms. Pandey appearing for respondent submitted that claims
Tribunal has rightly examined matter on each and every aspects and
properly appreciated evidence. The claims Tribunal has awarded
reasonable compensation, which can not consider to be in lower side
in any manner. Therefore, according to her submission no
interference is required by this Court.
I
have considered submissions made by both learned advocates and I
have perused award passed by claims Tribunal. The accident occurred
on 26/12/1996 and claimant has received 49% disability as per
medical certificate produced by Dr. Jatin Shah vide exh 40/41. The
claims Tribunal has considered income part of claimant as per
evidence of claimant exh 1, his monthly income was Rs. 14,000/- per
month, same fact has been stated by him in his affidavit, total
comes to Rs. 1,68,000/- per year. The tribunal has considered income
for the year 1996, when accident occurred and decided monthly income
of Rs. 6000/- and yearly income of Rs. 72,000/- which was received
by him in 1996. The evidence of claimant mentioning income for
present period and he was not receiving Rs. 14,000/- salary in the
year 1996. Therefore, claims Tribunal has reduced it and reasonably
fixed amount of Rs. 6,000/- per month. The tribunal has considered
actual loss cause to claimant and come to conclusion that about six
month, he remained out of job, therefore, Rs. 36000/- has been
awarded.
The
claims Tribunal has considered various decision on said subject and
relied upon evidence of Dr. Shah, in which he made it clear in cross
examination that claimant’s right and left leg injured due to said
accident and 36% disability may be taken into account. On that
basis discussion is made in para 60, 61 and 66 which are quoted as
under:
?S60. In
cross examination he has stated that the right and left leg
disability of the applicant comes to 36%.
61. On
perusal of disability certificate issued by the doctor it reveals
that the applicant has sustained 49% disability of his right leg
and left leg which comes to 36% as per cross examination of the
applicant. Hence after accident the applicant has sustained
permanent disability of 36%.
66. The
applicant has stated that his age as 36 years in the application
exh 1 and in exh 21 the injury certificate the doctor Mr. J.B.Shah
has stated that age of applicant as 35 years. Therefore, this
tribunal decide that at the time of accident the applicant was aged
35 years. Hence 16 multiplier can be pressed into service while
multiplying Rs. 1,08,000/- by 16 comes to Rs. 17,28,000/- x 36%
sustained by applicant it comes to Rs. 6,22,000/-. Hence this
Tribunal award Rs. 6,22,000/- to the applicant for future loss of
income. Hence total figure comes to Rs. 7,78,000/-. But the
applicant is not entitled to recover this amount as compensation
from the opponents. As discussed above this amount shall have to be
slice down to one half which comes to Rs. 3,89,000/- as
compensation jointly and severally from the opponent no. 1 and 2.??
The
claims Tribunal has passed very detailed award running about 34
pages and considering number of decisions delivered by High Court as
well as Apex Court and properly appreciated evidence on record.
Therefore, according to my opinion, the compensation which is
awarded by claims Tribunal can not consider to be in lower side in
any manner, on the contrary it is reasonable, proper and just
compensation. Therefore, contention raised by learned advocate Mr.
Savni can not be accepted and same is rejected.
The
claims Tribunal has not committed any error which would require
interference by this Court. Hence there is no substance in the
present appeal. Accordingly, present appeal is dismissed.
(H.K.RATHOD,
J)
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