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FA/1182/1992 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1182 of 1992
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
PRAJAPATI
KANUBHAI HIRABHAI - Appellant(s)
Versus
HOSA
ANTODIA KORAL & 2 - Defendant(s)
=========================================================
Appearance
:
MR
JITENDRA M PATEL for
Appellant(s) : 1,
DS AFF.NOT FILED (N) for Defendant(s) : 1,
MR
GC MAZMUDAR for Defendant(s) : 2,
MR HG MAZMUDAR for Defendant(s)
: 2,
MS MEGHA JANI for Defendant(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 22/11/2010
ORAL
ORDER
By
way of present appeal, the appellant has challenged the judgment and
award dated 18th February 1991 passed by the Motor
Accident Claim Tribunal (Aux), Vadodara (hereinafter referred
to as ‘the Tribunal’) in Motor
Accident Claim Petition No.47 of 1985, whereby the Tribunal
has not allowed the claim of the appellant in toto.
It
is the case of the appellant in brief that the appellant who was
minor at the time of accident on 05th May 1984 was going
in an S.T. Bus towards Tilakwada for repairing of his clothes and
near Devadia the said S.T. Bus had stopped due to repairing in the
bus and, therefore, the appellant got down from the bus and was
proceeding on foot towards Tilakwada Road and at that time, the
respondent No.1 came in a jeep car from back side and dashed with
the appellant and as a result of the same, the appellant sustained
injuries on his legs. He was hospitalized for one month as an indoor
patient and suffered permanent partial disability on account of the
same. Hence, he preferred Motor Accident Claim Petition No.47 of
1985, whereby the Motor Accident Claim Tribunal rejected the claim
of the appellant. Hence, present appeal.
Mr.J.M.
Patel, learned advocate for the appellant, has submitted that the
Tribunal has erred in reducing the amount by 1/2 on the wrong basis
that disability is required to be reduced from 30% to 15%; that the
Tribunal has erred in not properly applying the ratio of the
decision in the case of 1982(2) GLR 379 and that the
Tribunal has erred in reducing the disability from 30% to 15%. In
view above submissions, it is prayed that the appeal may be allowed
by allowing the claim petition in toto.
Having
considered the contentions raised by the learned counsel for the
appellant, averments made in the appeal and the documentary evidence
produced on record, it transpires that the Tribunal after taking
into consideration all the relevant documents and evidence on record
has partly allowed the claim petition filed by the appellant. It is
pertinent to note that the Tribunal on the basis of the decision of
this Court reported in 1985 (2) GLR 379 has assessed the disability
at 15% of the whole body instead of 30% prescribed by the doctor.
Thus, the conclusion arrived at by the Tribunal in reducing the
disability which is on the basis of the decision of this Court
cannot be said to be unjust and improper. Further, the doctor had
assessed the disability 30% of the left leg and not of the whole
body. Hence, the Tribunal has rightly applied the ratio of the above
cited decision to the present case.
In
view of aforesaid, I am of the opinion that the view taken by the
Tribunal is just and proper. The Tribunal has assigned cogent and
convincing reasons for arriving at the conclusion. Over and above
the reasons assigned hereinabove, I adopt the reasons assigned by
the Tribunal and do not find any illegality much less any perversity
in the findings recorded. I am in complete agreement with the
findings recorded by the Tribunal. No case is made out to interfere
with the findings recorded by the Tribunal. Hence, present appeal
deserves to be dismissed.
For
the foregoing reasons, present appeal fails and is, accordingly,
dismissed. No order as to costs.
(K.S.
Jhaveri, J)
Aakar
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