PATEL KAILASBEN UPENDRABHAI Vs. NATUBHAI MADHABHAI SOLANKI

JUDGEMENT

(1.) By this appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act"), the appellants have challenged the judgment and award dated 25.10.2016 passed by the MACT (Aux.), Mehsana at Visnagar in MACP no.474 of 2012.

(2.) The facts as per the record of the appeal reveal that one Upendra Nanalal Patel was travelling in a tempo bearing registration no.GJ2 Y4629 loaded with grapes to be delivered at Nadiad with his driver and when the tempo reached Saputara-Shamgaman road, Nr. Ghat of Malegaon Toll, the break of the tempo failed and the steering got jammed as a result of which, the tempo turned turtle. The deceased fell down and received serious injuries and ultimately, succumbed. Record indicates that the deceased was the owner of the tempo and was aged about 55 years. A complaint came to be filed with the police at Exh.24. Inquest Panchnama was also prepared at Exh.26 and Panchnama of the accident was also prepared at Exh.25. The appellants are the original claimants i.e. heirs of the deceased. The original claimants filed the claim petition under Section 166 of the Act and claimed compensation of Rs. 6 lacs.

(3.) The original claimants adduced oral evidence at Exh.21 and also produced the aforementioned documentary evidence as well as other evidence, such as, R.C. book of the tempo, driving licence Exh.28, R.C. Book at Exh.29, incometax returns of 4 years being Exhs.39 to 44 and claimed that the deceased was hale and hearty and was earning Rs. 7,000/- per month and thus, claimed the compensation. On notice being issued, the insurance Company appeared before the Tribunal and filed a written statement at Exh.17 and contended that the respondent insurance Company cannot be held liable and that the Tribunal cannot pass an order of compensation and contended that the deceased was owner of the tempo and he is not included in the insurance policy and therefore, the respondent insurance Company is not liable to pay compensation. Relying upon the decisions of the Hon'ble Apex Court, it was contended by the insurance Company that the deceased was not a third party and as per the policy, only third party risk was covered. It is contended that as provided under Section 147 of the Act, the respondent insurance Company does not owe any liability towards injuries suffered by the deceased who was the owner of the offending vehicle. It is contended that as the insurance policy was a statutory policy, it did not cover the risk of death or bodily injury to an owner and therefore, the claim petition is not maintainable. The Tribunal, by the impugned judgment and award, came to the conclusion that the accident occurred due to rash and negligent driving on the part of the driver of the offending vehicle. However, considering the proposition that as a matter of fact, the deceased was himself owner of the offending vehicle, the risk of his death is not covered by the policy and therefore, was pleased to reject the claim petition. Being aggrieved by the said judgment and award, the original claimants have preferred this appeal.