An insurance policy is not required to cover the liability of the death of a person being carried in a car not plying for hire or reward.

( 1 ) THIS is a suit for the recovery of Rs. 40,000. 00. as compensation, on account of the death of Mrs. Shashi Prabha. The suit, which was filed in forma pauper is, is based on the following allegations :-

( 2 ) ON the 18th August, 1962, at about 1. 30 p. m. , defendant No 1 had taken Shashi Prabha, the mother of the plaintiffs, and wife of defendant No. 3, in a motor car, which was insured with defendant No. 2, to Meerut. On the way, defendant No. 1 had driven the car recklessly and negligently as a result of which it had turned turtle at about 5 miles from Meerut and Mrs. Shashi Prabha had received grievous crush injuries and had died within an hour. Defendant No. 1 had caused the death of Mrs. Shashi Prabha by his rash, negligent and reckless driving and was liable to pay compensation to the plaintiffs for causing the death of their mother. Mrs. Shashi Prabha was only 30 years old. She enjoyed a very good health. The plaintiffs were dependant on her for their proper upbringing and she also looked after the entire household and rendered all sorts of services to the plaintiffs. After the death of their mother, a servant was engaged for looking after the plaintiffs by their father. The studies of the plaintiffs had been adversely affected. Although the plaintiffs had suffered untold loss, yet they claimed only a sum of Rs. 40,000/. with interest at 6 per cent per annum from the date of the death till realisation, as compensation. The car was insured with defendant No. 2. In terms of the provisions of Chapter VIII of the Motor Vehicles Act, 1939, defendant No, 2 is also liable to pay compensation. Defendant No. 3, the father of the plaintiffs, is also entitled to claim compensation but he has declined to join with the plaintiffs. Defendants Nos. 1 and 2 have refused to pay compensation, despite demands. The Motor Accident Claims Tribunal has not yet been constituted in U. P. , the civil court has, therefore, jurisdiction to try the suit.

( 3 ) THE suit has been contested by defendants Nos. 1 and 2. In separate written statements, the defendants denied that the plaintiffs are paupers. The defendants pleaded that the suit had been instituted by the plaintiffs in collusion with defendant No. 3, their father, who possessed considerable movable and immovable properties. and had put forward the plaintiffs to avoid the payment of court fee. The defendants, further pleaded that Delhi courts have no jurisdiction to try the suit.

( 4 ) THE learned Subordinated Judge, in whose court the suit had been instituted, framed the following two issues :-

1. Whether the petitioners are paupers ? (O. P. P.) 2. Whether the Civil Court has no jurisdiction to entertain his application ? (O. P. D. ).

( 5 ) BY his order, dated the 16th August, 1963, the learned Subordinate Judge, decided both the issues against the defendants. He held that the plaintiffs were paupers and that the civil court at Delhi had jurisdiction to try the suit.

( 6 ) DEFENDANTS Nos. 1 and 2, thereupon, filed separate written statements, on merits of the case. Except the pleas about the liability of defendant No. 2. the other pleas of defendants Nos. 1 and 2 are substantially the same. They admitted that Mrs. Shashi Prabha had died in a motor accident. But they denied that the accident was due to any negligent or rash act of defendant No. 1. The defendants further denied that the plaintiffs had suffered any loss or were entitled to any compensation. The defendants pleaded that Mrs. Shashi Prabha was not earning anything and the plaintiffs were, therefore, not entitled to claim any compensation because other death. It was also pleaded that the suit was not maintainable in law, as it was not filed in accordance with the provisions of the Fatal Accident Act. The defendants admitted that no Motor Accidents Claims Tribunal was established in U. P. The case of defendant. No. 1 is as under:

( 7 ) DEFENDANT No. 1 is a friend of the brother of Mrs. Shashi Prabha and for that. reaso