- (1.) THE instant civil misc. appeal has been filed by the appellant non -claimants under Section 173 of the Motor Vehicles Act for quashing and setting aside the impugned order dated 26.10.2007 passed by the MACT, & Addl. District & Sessions Judge Khetri, District, Jhunjhunu, in claim case No.67/2004 qua the appellants, whereby the claim petition filed by the claimant has been partly allowed granting compensation of Rs.2,48,000/ - in favour of the claimants(respondents Nos. 1 to 4 herein).
(2.) THE brief facts as emerging on the face of record are that a claim petition came to be filed before the Tribunal with the averments that on 28.2.2004 in the morning Ram Kumar, Shishpal, Gugan Ram, Mahendra took the deceased from his house situated in Hadajatuwas for treatment to SMS Hospital, Jaipur in a hired Marshal Jeep bearing No. H.R. -16C -1253. The Marshal Jeep was being driven by driver Mahavir Prasad S/o Banwarilal Khati in a rash and negligent manner. When the Marshal Jeep reached to Bichhwadi Tan Lavana on Delhi -Jaipur Highway N.H. No.8 then driver Mahavir Prasad drove the Marshal Jeep with high speed in a rash and negligent manner and collided with a tree due to which deceased Shrichand received serious injuries and died on the spot and other passengers Ram Kumar, Guganram, Shishpal and Mahendra sustained injuries. Post -mortem of deceased Shrichand was got conducted and other injured were got treatment. It was alleged that driver of Marshal Jeep ran away leaving behind the vehicle. It was averred that Marshal Jeep was hired for a sum of Rs.2000/ -. The report of the incident was presented by Shishpal son of the deceased at Chandvaji Police Station in the evening on 28.2.2004 at about 5.15 p.m. upon which case No.53/2004 was registered. After investigation, the police filed a challan for offence under sections 279,337,304 -A IPC against non -petitioner No.2 in the competent court. It was stated that non -petitioner No.1 is the owner of the offending vehicle. Non -petitioner No.2 is the driver of the said vehicle. It was alleged that due to rash and negligent driving by the driver of the said vehicle accident has taken place. The non - petitioner No.3 is the Insurance Company with whom the said vehicle is insured. Therefore, the claimants prayed for compensation on account of death of deceased Shrichand in the said accident. The non -petitioners Nos.1 and 2 in their reply stated that the deceased had died on the way but before the accident. It was stated that in reality on 28.2.2004 in the night at about 2 O' Clock, the claimants came at the residence of non - petitioners Nos.1 & 2 and stated that the condition of Shrichand is very critical and there is no chance of his survival as doctors of Narnaul have refused for treatment and asked help for taking him to Jaipur for treatment then non - petitioners being neighbourers and having cordial relations without determining any rent with a view to help them took Shrichand and his relatives in the Jeep bearing No. H.R. -16C -1253 for Jaipur. It was alleged that the claimants have neither determined any rent nor paid Rs.2000/ - for the rent. It was alleged that the claimants with a view to make strong case have averred false fact regarding rent. It was stated that non -petitioner No.2 was driving the vehicle with care and caution. It was further stated that when the vehicle was overtaking one Trolla loaded with Iron on Highway No.8 near Lavana river Bichhwadi bridge then suddenly the driver of the Trolla turned the vehicle towards right side and with a view to avoid any mishap the non -petitioner No.2 turned the Jeep towards right side and applied the brakes due to which the jeep hit the tree and non - petitioner No.2 and other passengers received simple injuries. It was further alleged that before the accident, after passing Kotputli the condition of Shrichand became very serious and voice due to pain was stopped and after stopping the vehicle, he saw Shrichand has already expired but the claimants and their relatives stated that let us reach Jaipur and show him at the hospital he may get life. On the request of them he drove the vehicle further and accident occurred. It was, therefore, stated that Shrichand has already expired before the incident and cause of death of Shrichand was disease, which fact is corroborated by the post -mortem report. It was alleged that false report of accident has been made with the collusion of police. Ultimately, while denying the allegations it was prayed that the claim petition may be dismissed.
(3.) THE non -petitioner No.3 ­ Insurance Company filed their reply and stated that the so called accident did not take place due to rash and negligent driving by the driver of vehicle bearing No. H.R. -16C -1253. It was averred that information about the accident was not given to the Insurance Company and driver of the said vehicle was not having a valid driving licence, therefore, on account of breach of conditions of the insurance policy, there is no responsibility of the Insurance Company. The said accident has been caused due to fault and rash and negligent act of the deceased himself and challan has been filed against the driver of the Jeep in connivance. Ultimately while denying the averments made in the claim petition, it was prayed to dismiss the petition.;