IFFCO TOKIO GENERAL INSURANCE COMPANY LTD Vs. BIRMATI

JUDGEMENT

(1.) Smt.Birmati aged about 40 years - wife, Ms.Kirtika, aged about 19 years - daughter and Master Ankit, aged about 17 years - minor son of Sh.Pawan Kumar, an unfortunate victim of a road side accident had brought a claim petition under Section 166 of the Motor Vehicles Act, 1988 against respondents i.e. Virender - driver-cum-owner and Iffco Tokio General Insurance Company Ltd. - insurer of Auto Rickshaw bearing registration No.HR-63C-4888 (hereinafter referred to as the offending vehicle), claiming compensation to the tune of Rs.50 lacs. As per the case of the petitioners/claimants, on 24.7.2015, Sh.Pawan Kumar along with S/Sh.Ramphal son of Hukam Chand, Sanjay and Rajender was going to Sampla from Chhara by the offending vehicle driven by respondent No.1; that Pawan Kumar was sitting on right side of driver - Virender, whereas Ramphal, Sanjay and Rajender were sitting on the back seat of the offending vehicle; that respondent 1 - Virender was driving the offending vehicle at a very high speed rashly and negligently; that Pawan Kumar and other passengers had asked respondent No.1 - Virender to drive it in a proper manner but to no effect, resultantly the offending vehicle turned turtle on its right side and Pawan Kumar came underneath the offending vehicle and died at the spot, in that way respondent No.1 had caused the accident by his rash and negligent driving of the offending vehicle, resulting in death of Pawan Kumar; that formal FIR No.438 dated 24.7.2015 for the offences under Sections 279 and 304- A IPC was got recorded by Ramphal son of Hukam Chand, resident of village Chhara, District Jhajjar; that postmortem examination was performed on the deadbody of Pawan Kumar. On getting notice of the claim petition, both the respondents had appeared and contested the claim petition.

(2.) In the written statement filed on behalf of respondent No.1, he had denied that any accident had taken place on 24.7.2015 at about 4:20 a.m. Such respondent, however admitted that he is owner of the offending vehicle. In the written statement filed on behalf of respondent No.2 - insurance company, it also took up various legal objections contending that terms and conditions of the insurance policy had been violated; that no cause of action arose to the claimants to bring the claim petition; that respondent No.1 was not having a valid and effective driving licence at the time of accident and the vehicle in question was falsely involved by the claimants in collusion with the police; that the claimants had not approached the Court with clean hands. On merits, the insurance company contended that the offending vehicle was not insured with it at the material time, so the answering respondent was not liable to pay any compensation. In the end, both the respondents prayed for dismissal of the claim petition.

(3.) On the pleadings of the parties, following issues were framed:-