SALMANBANU FAZALBHAI MANSURI Vs. NIZAMUDDIN GAFURBHAI MANSURI

JUDGEMENT

(1.) The deceased Fazalbhai Gulabbhai Mansuri was returning to Ahmedabad on 01.03.2007 in tempo bearing registration No.GJ-15-X-8241 as a condutctor. The said tempo was loaded with the sugar and when it was passing near turnnel of railway line at Anand-Godhra towards right hand side of Baroda- Ahmedabad Express Highway at about 9.30 p.m., one unknown truck came from the wrong side in a rash and negligent manner and dashed with the tempo. As a result, Fazalbhai Gulabbhai Mansuri sustained fatal injuries and died on the spot. The appellants who happen to be legal heirs and representatives of the deceased had preferred Motor Accident Claim Petition No.468 of 2007 in the Motor Accident Claim Tribunal, Sabarkantha at Himmatnagar to recover Rs.4,00,000/- as compensation under Section 166 of the Motor Vehicles Act, 1988 (for short "the MV Act") from the respondents who happened to be the driver, owner and insurer of the offending tempo respectively. The claim Tribunal by the impugned judgment and order dated 09.04.2010 dismissed the claim petition on the ground that the appellants failed to prove that the deceased Fazalbhai Gulabbhai Mansuri sustained fatal injuries due to negligent driving of the respondent no.1, driver of the offending tempo. The appellants have questioned the impugned judgment and order of the Tribunal in this appeal under Section 173 of the MV Act.

(2.) I have heard Mr. MTM Hakim with Mr. Mansuri, learned advocates for the appellants and Mr. Maulik J. Shelat, learned advocate for Insurance Company. Though served, there is no appearance on behalf of respondent no.1 and 2.

(3.) Mr. MTM Hakim, learned advocate for the appellants submits that the Tribunal has recorded conclusion that there was no negligency on the part of respondent no.1 herein and has solely by relying upon the FIR ignoring panchnama and other evidences, has dismissed the claim petition. It is further submitted that the Insurance Policy under which the offending tempo was covered, was a comprehensive policy and therefore, irrespective of negligence, the driver and owner of the tempo are liable to pay compensation. In support of this contention, he placed reliance on the decision of the Supreme Court in the case of Hanumana Gouda Versus United India Insurance Co. Ltd. and Others, 2014 (1) T.A.C. 723 (S.C.), and Bimlesh and Others Versus New India Assurance Company Limited, 2010 (8)SCC 591 and the decision of this Court in the case of Maniben S. Pandya Versus Shashikant P. Shrigalor, 2004 (3) GLR 1878 and the decision of this Court in the case of Nathubhau Dadabhai Chopda & 4 Versus Ashvinkumar U. Rajat and 1 rendered in First Appeal No.2707 of 2009 and in case of United India Insurance Company Limited Versus Mukeshbhai Bhikhabhai Prajapati & 1 rendered in First Appeal No.2208 of 2007. He therefore submits that the matter be remanded to the Tribunal for fresh consideration.