IN THE HIGH COURT OF JUDICATURE AT BOMBAY VPH CIVIL APPELLATE JURISDICTION FIRST APPEAL No. 2371 OF 2008 The New India Assurance Co. Ltd. ... Appellant Vs Smt. Shakila Ibrahim Mundhe & Ors.... Respondents Mr. Dilip Mahadik i/b S. R. Singh, for the Appellant. Mr. Samer Singh i/b Omkar Warange, for the Respondent Nos. 1 & 2. CORAM: A. P. DESHPANDE, J. DATED: JANUARY 22, 2009. P.C.: ---- . This is an appeal filed by The New India Assurance Company Ltd., challenging the award passed by the Motor Accident Claims Tribunal, awarding compensation to the claimants on the ground of death of the deceased. It is undisputed that the deceased was travelling in a jeep which colluded with a bus, resulting in death of the deceased. The learned counsel for the appellant tried to contend that deceased was gratutious passanger and hence, compensation could not have been awarded. Perusal ofthe judgment in Motor Accident Claim Petition No. 625 of 1999 reveals that this plea was not pressed in service before the Tribunal. The learned counsel for the appellant has invited my attention to paragraph 6-A of the written statement, which paragraph has been - 2 - inserted by an amendment. The same reads thus- "That the Mahindra Jeep No. MMH-5846 was at the material time carrying 8 passangers, which is in violation of permit of transport of 5 passangers and as such this oponent is not liable to indemnify the opponent No.3." 2. These pleadings cannot be considered so as to mean that the deceased was a gratutious passanger. On plain reading of the averments extracted hereinabove, it is clear that the Jeep involved in the accident was having permit to carry 5 passangers but what was pleaded was that 8 passangers were carried in the said Jeep. No other contention is raised. The deceased in the present Jeep cannot be counted as one of those passangers who were travelling in excess of the permitted strength. Be it as it may. Even this point does not appear to have been pressed in service before the Tribunal as this submission is not reflected to be considered in the judgment. There is no merit in the appeal. Hence, appeal stands dismissed with no orders as to costs. 3. In view of dismissal of this appeal all Civil Applications in the appeal are rendered infructuous and are accordingly dismissed. - 3 - Sd/- [ A. P. DESHPANDE, J.]