1 ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 901 OF 1996 The New India Assurance Co. Limited. .. Appellant Vs Chandrabaga Sitaram Kamble. .. Respondent -- Shri S.M. Vidyarthi for the Appellant. Shri T.J. Mandon for Respondent Nos. 1 and 3. -- CORAM : A.S.OKA, J. DATE : 16TH APRIL, 2010 ORAL JUDGMENT : 1. This Appeal has been preferred by the Appellant-Insurer for challenging the judgment and award made by the Motor Accident Claims Tribunal in a Claim Petition filed by the 1 st to 3 rd Respondents under Section 166 of the Motor Vehicles Act, 1988. The allegation of the Claimants is that the deceased Sitaram died in a motor accident on account of rash and negligent driving on the part of the driver of the truck which was insured with the Appellant. The contention raised by the Appellant was that the deceased was travelling as a gratuitous passenger in a goods vehicle and therefore, the liability arising out 2 of death of the deceased was not required to be covered under the policy of insurance issued by the Appellant. The said defence of the Appellant was rejected and the award was passed against the owner and driver of the truck as well as against the Appellant. 2. The ground of challenge in this Appeal is that the Appellant is not liable to pay compensation and the liability is only of the owner and the driver of the Truck. The Respondent No.4 is the driver of the vehicle against whom the appeal stands abated. The Respondent No.5 is a owner of the Truck. As per the order dated 24 th February, 2009 passed by the Registrar (Judicial-I), the appeal was dismissed for non-prosecution as against the Respondent No.5 as no steps were taken for effecting service of the notice to the said Respondent. The appeal was restored by this Court as against the Respondent No.5 as per the order dated 1 st February, 2010. By a separate order, a permission was granted to the Appellant to serve notice of Respondent No.5 by substituted service by publication. On 2 nd March, 2010, when the appeal was called out, it was found that a copy of the publication notice was not submitted on record by the Appellant. Therefore, this Court dismissed the 3 appeal as against the Respondent No.5. Thereafter, on 22 nd March, 2010, 23 rd March, 2010, 26 th March, 2010 and 13 th April, 2010, time was granted to the Appellant to produce copies of the newspapers containing the notice and to apply for restoration. The learned counsel appearing for the Appellant states that till today he has not received any instructions from the Appellant as to whether notice has been published in terms of the order of this Court passed on 1 st February, 2010. The learned counsel appearing for the Appellant seeks further time. Sufficient indulgence has been already shown to the Appellant. No further time can be granted in this Appeal of the year 1996 which arises out of the claim Petition of the year 1992 relating to the accident taken place on 26 th May, 1991. 2. If the contention of the Appellant in this Appeal is accepted, the 5 th Respondent will be directly affected by the judgment and decree passed by this Court. As the appeal stands dismissed as against the Respondent No.5, the same does not survive and the same is accordingly dismissed with no orders as to costs. The amount deposited by the Appellant in this Court together with interest, if any, accrued thereon shall be transmitted to the concerned Tribunal. The Tribunal will hear the parties and pass orders 4 regarding withdrawal and/or disbursement of the amount. The Record and Proceeding be sent back forthwith. (A.S.OKA, J)