The onus of proof regarding the validity of the driving license and authorization to drive the vehicle remains with the insurance company, and the violation of insurance policy terms cannot be presumed in the absence of specific pleadings.

JUDGMENT :

By the Court:- Heard the parties.

2. No one turns up on behalf of the respondent No.9 in spite of repeated calls, hence, this appeal is heard and disposed of ex-parte against the respondent No.9.

3. This Appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 04.08.2018 passed by learned District Judge-II-cum-M.A.C.T., Giridih in Motor Accident Claim Case No.10 of 2017 by which in an application under Section 166 of the Motor Vehicle Act, 1988 the learned tribunal awarded a compensation of Rs.9,30,160/- along with simple interest @ 6% per annum from the date of filing of the claim application i.e. 22.03.2017 to till the realization of the amount of compensation from the opposite party No.3.

4. The brief facts of the case is that on 08.01.2017 at about 5:00 pm the deceased was coming on a tempo with other passengers. On the way the driver of Bolero Vehicle rashly and negligently driving the offending Bolero Vehicle, dashed the tempo due to which injuries were caused to Shankar Turi and other passengers and the injured Shankar Turi was taken to referral hospital and was later on referred to Ranchi but on the way, the deceased- Shankar Turi died. The claimants are the dependants of Shankar Turi. In connection with the said accident, Dhanwar P.S. Case No.11 of 2017 was registered on 09.01.2017 for the offences punishable under Sections 279, 337, 338, 304 A and 427 of the Indian Penal Code and after due investigation of the case, the police submitted charge-sheet against the driver of the offending Bolero Vehicle. The deceased was earning Rs.15,000/- per month by driving his tempo and was aged about 30 years at the time of his death.

5. The opposite party No.1 being the owner of the offending vehicle and the opposite party No.2 being the driver of the offending vehicle did not appear in response to the notice and were set ex-parte. Later on they filed their joint written-statement but since the same was not pressed, vide order dated 19.08.2017 the tribunal ordered that the said joint written statement of the owner of the offending vehicle and the driver of the offending vehicle who are respectively the opposite party Nos.1 and 2 of the claim application be kept in the record.

6. The opposite party No.3-appellant- Insurance Company filed its written statement and challenged the maintainability of the claim petition on various technical grounds. It was specifically pleaded by the opposite party No.3-appellant- Insurance Company that the vehicle was being driven by the driver without holding any driving license and without any road permit.

7. In view of the rival pleadings of the parties, the learned tribunal framed the following six issues:-

1). Whether the suit is maintainable in its present form?

2). Whether there is valid cause of action for the present suit?

3). Whether death of the deceased Shankar Turi was caused by the injury sustained due to rash and negligent driving by the driver of the offending vehicle i.e. Mahindra Bolero No. JH-12C-0521 on 08.01.2016 at about 5.00 P.M?

4). Whether the driver of offending vehicle had a valid driving licence at the time of occurrence and the offending vehicle was insured with O.P. no.3 Bharti AXA General Insurance Company Ltd. at the time of occurrence?

5). Whether the claimants are entitled for compensation and if so, what amount and from whom?

6). To what relief or reliefs the claimants are entitled for?

8. In support of its case, the claimants altogether examined five witnesses while the opposite party did not adduce any evidence either oral or documentary. P.W.1- Dropadi Devi is the mother of the deceased. She has supported the case of the claimants including the accident and the earning of the deceased. In her cross-examination, she has stated that she came to know about the accident from a second person.

9. P.W.2- Pairu Turi is the father of the deceased. He in his examination-in-chief filed in the shape of affidavit has also s