Aditya Kumar Trivedi, J. – Instant appeal has been preferred in accordance with Section 173 of the M.V. Act against the judgment dated 07.09.2010, award dated 27.09.2010 passed by IIIrd Additional District Judge cum Additional Motor Vehicle Accident Claims Tribunal, Bhagalpur in Claim Case no.23 of 1995 whereby and whereunder allowing the claim petition, the learned Tribunal directed the appellant/opposite party no.3 to pay Rs.1,70,200/- in lieu of compensation. The amount appertaining to Rs.50,000/- so paid under the guise of Section 140 of the M.V. Act has been directed to be deducted and remaining amount, appertaining to Rs.1,20,200/- has been directed to be paid within thirty days along with an interest at the rate of 6% per annum from the date of institution of the case.

2. On account of death of Md. Rauf Khan, on 22.02.1995 at about 07:00 AM, his legal heirs filed Claim Petition No.23 of 1995 against the owner, driver, insurance company and for that, divulged that Mukesh Choudhary, driver while driving the tractor bearing registration no. BR-10A 1028 in rash and negligent manner ultimately cost life of Md. Rauf at the spot while others also sustained injury. During course thereof, one cow was also dashed and died. It has also been disclosed that for the aforesaid incidence, a criminal case was instituted on the fardbeyan of brother of deceased. it has further been disclosed that at the time of accident, deceased was aged about 35 years. A sum of Rs.3 lacs was claimed in lieu of compensation showing monthly earning of deceased as Rs.1200/-.

3. From the lower court record, it is evident that owner and driver failed to appear however, order sheet of the lower court record is completely silent with regard to having the case fixed on ex-parte against them.

4. Appellant/insurance company appeared and filed W.S. wherein apart from raising ornamental objection, it has been pleaded that driver of the vehicle in question was not at all holding valid and proper driving license and so, the owner of the vehicle committed breach of terms of policy whereupon, insurer is not at all responsible to indemnify in terms of Section 149(2) of the MV Act. It has also been stated that the vehicle in question was plying without fitness, road permit, route permit and on account thereof, there happens to be violation of terms of the policy.

5. It has also been stated that there happens to be no document regarding earning of the deceased to a tune of Rs.1200 per month. Further been asserted that deceased died of his own fault and on account thereof, is not at all entitled for compensation. Furthermore, the insurer had reserved right of filing a petition in terms of Section 170 of the MV Act in case, there happens to be absence of owner.

6. From the order sheet of the lower court record, it is evident that a petition under Section 170 of the MV Act was filed on 12.04.2005. The successive order sheets further speak that same was not allowed as was not pressed.

7. It is further evident from lower court record that a petition under Section 140 of the MV Act was filed on 11.10.1996 and the same was allowed vide order dated 07.01.1997.

8. The learned lower court, as is evident from the judgment impugned failed to frame any issue on the respective pleadings of the party however, allowed hearing whereunder six witnesses were adduced on behalf of respondent/ claimant along with exhibits of the relevant documents. The appellant-insurance company /opposite party also examine witness as well as exhibit document in its defence and lastly, after hearing argument, by the judgment and decree impugned, allowed the claim petition.

9. While the appeal remained pending after admission, on a prayer made by the appellant, respondent no.2, owner of the vehicle has been deleted vide order dated 15.10.2015 with a condition that appellant will have to bear its repercussion.

10. As stated above, though there remained absence of owner as well as driver before the learned lower court,