Galabhai Mangalbhai Parmar vs Ramanbhai Sakdabhai Parmar
2021 Latest Caselaw 18395 Guj

     C/FA/2639/2009                               JUDGMENT DATED: 14/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2639 of 2009


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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1    Whether Reporters of Local Papers may be allowed                   No
     to see the judgment ?

2    To be referred to the Reporter or not ?                            No

3    Whether their Lordships wish to see the fair copy                  No
     of the judgment ?

4    Whether this case involves a substantial question                  No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                     GALABHAI MANGALBHAI PARMAR
                                Versus
                 RAMANBHAI SAKDABHAI PARMAR & 4 other(s)
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Appearance:
MRS NISHA M PARIKH(2397) for the Appellant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
MS KIRAN D PANDEY(3337) for the Defendant(s) No. 4
RULE SERVED(64) for the Defendant(s) No. 1,2,5
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                              Date : 14/12/2021

                             ORAL JUDGMENT

1. The present appeal is filed under Section 173 of the Motor

Vehicles Act challenging the impugned judgment and award

C/FA/2639/2009 JUDGMENT DATED: 14/12/2021

dated 26.06.2007 passed by the Motor Accident Claims Tribunal

(Aux.), Modasa (hereinafter referred to as "the Tribunal") in

M.A.C.P. No. 1072 of 1998, whereby the Tribunal has dismissed

the claim petition.

2. Brief facts of the present case are that on 11.03.1998, the

claimant was working as conductor in tempo bearing registration

no.GJ-07-X-8441 and the said tempo went to Village: Bayad

loading with potato and, thereafter, when they came back after

emptying the tempo and passed near Dhuliyavasna Bus Stand,

at that time, one bus coming from opposite direction with full

speed and in negligent manner, at that time, the claimant was

performing his duty to give side of the tempo, because of

negligency of the bus driver, he sustained injury on his right side

eye and fall down and also sustained injury on other part of body

and left eye also. Hence, the claimant had preferred claim

petition being M.A.C.P. No.1072 of 1998 claiming Rs.2,00,000/-

as compensation, which came to be dismissed by the Tribunal

vide order dated 26.06.2007 and hence, this appeal.

2. Heard Ms.Nisha Parikh, learned counsel appearing for the

C/FA/2639/2009 JUDGMENT DATED: 14/12/2021

appellant, Mr.Palak Thakkar, learned counsel appearing for

respondent no.3 - Insurance Company and Ms.Kiran Pandey,

learned counsel appearing for respondent no.4 - Corporation.

Though served, nobody appears on behalf of respondents no.1, 2

and 5.

3. Ms.Nisha Parikh, learned counsel appearing for the

appellant has submitted that the impugned judgment and award

passed by the Tribunal is against the evidence and settled legal

provision of law. She has submitted that the Tribunal while

passing the judgment and award has not exercised jurisdiction

vested in it and the respondents are liable to pay the

compensation. She has submitted that the Tribunal has erred in

considering the fact that the claimant was working as a

conductor of the tempo and earning Rs.1,000/- as salary and

Rs.300/- as an incentive. She has submitted that on account of

the negligency of the driver of the bus, the claimant lost his right

eye permanently and got 30% disability. She has submitted that

the Tribunal has not considered the evidence of the claimant and

driver at Exhibit 32 wherein he has stated that bus was coming

from the opposite side with full speed. She has submitted that

C/FA/2639/2009 JUDGMENT DATED: 14/12/2021

the claimant is poor and illiterate person and has responsibility

to maintain his family, but due to the accident, he has to left his

work and, therefore, it is very difficult to maintain his family. She

prays for quashment of the impugned judgment and award

passed by the Tribunal.

4. Having considered the submissions made on behalf of both

the sides, materials placed on record, record and proceedings

and the depositions of the witnesses, it appears that the injured

i.e. claimant himself has admitted in his cross-examination that

the driver of the S.T. Bus has driven the bus keeping some

distance and, therefore, he has not sustained injury in his eyes

and he was to move out from the truck to see the side. The

claimant has also admitted in his cross-examination that there

was curved road. The claimant has denied the fact that the bus

was standing on the right side of the road and also he has pulled

out the part of his body.

5. Now, on perusal of the aforesaid facts and deposition of the

claimant, it clearly appears that the Tribunal has not committed

any error in dismissing the claim petition of the claimant and,

therefore, it does not warrant interference. Hence, the present

C/FA/2639/2009 JUDGMENT DATED: 14/12/2021

appeal deserves to the dismissed and the impugned award

deserves to be confirmed.

6. In view of the above, the appeal is dismissed. Notice is

discharged. Registry is directed to send back the record and

proceedings to the concerned Tribunal forthwith.

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL