D.N. UPADHYAY, J.

1. Respondent Nos. 1 and 2 appeared by filing Vakalatnama. Respondent Nos. 3 and 4 are minor children of Respondent No. 1 and they shall be represented through their mother, natural guardian-Respondent No. 1.

2. Respondent No. 5 did not appear even after valid service of notice and therefore, the appeal shall proceed ex parte against Respondent No. 5.

3. This appeal has been preferred against the judgment and award dated 29th July, 2010 passed by learned Additional District Judge, Fast Track Court-cum-Motor Accident Claim Tribunal, Simdega in connection with M.A.C.C. Case No. 6 of 2007.

4. It is contended that the claimants themselves have filed an F.I.R. and charge-sheet, which have been marked as Exts. 2 and 2/1 and that indicate that driver of the offending Maruti Car, bearing Registration No. OR-14-2175, after causing dash to the deceased was fleeing away to save himself. He was driving the vehicle rashly and negligently and again the driver dashed a bridge and sustained injuries and died at the spot.

5. It is submitted that the driver of the offending vehicle was himself liable for his death and he does not come under the definition of insured because no extra premium was paid to cover the risk. Therefore, the Insurance Company is not liable to pay awarded amount to the claimants/respondents. It is further pointed out that the policy was only with respect to liability and the risk of the driver was not covered.

6. Learned counsel appearing for the claimants/respondents has opposed the prayer and submitted that the appellant-Insurance Company has not led any evidence to that effect. They have not proved the proposal form and other documents relating to the issue which the appellant has been raising in this appeal. The plea taken by the appellant in its written statement has not been substantiated by any document or evidence before the Tribunal.

7. The owner of the vehicle has not appeared even after valid service of notice.

8. Be that as it may, the pleading without evidence could not be considered. It is apparent from the Lower Court Record that the appellant has not led any evidence to the effect that the deceased-driver was not insured and the policy did not cover the risk of the driver. It was also not brought on record either by the appellant or by the owner of the vehicle that the deceased was appointed as regular driver of that car/vehicle.

9. In view of the facts and circumstances of the case, as indicated above, I do not think that the appellant will succeed on the point raised in this appeal without being pleaded and supported by evidence in the court below.

10. In the circumstances, I do not find any merit in this appeal.

11. This appeal stands dismissed.