1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.6012 OF 2007 IN FIRST APPEAL NO.611 of 2008 ICICI Lombard General Insurance ..Applicant Co. Ltd. V/s. Smt.Shevanti @ Jayashree Sudhakar ..Respondents Palande & anr Mr.S.S.Vidyarthi, advocate, for the applicants Mr.P.G.Parkar, advocate, for respondent No.1 CORAM : A.S.OKA, J. DATE : 27TH MARCH,2008 P.C. . Heard the learned advocates appearing for the applicant and the respondent No.1. The contention raised in the appeal is that the first respondent was a passenger in the insured vehicle and therefore, the liability of the first respondent is not covered under the policy. This contention has not been raised by the appellant/applicant before the Tribunal. However, a reliance is placed on a decision of a Division Bench of this Court in support of the contention 2 holding that the said contention can be raised for the first time in Appeal. 2. As far as injuries suffered by the first respondent are concerned, the Tribunal has observed thus :- “The applicant has filed discharge card of Sadanand Danait Hospital below Ex.14/8 which shows that she had sustained fracture of clavicle right side, fracture of ribs bilateral, fracture of pubic ramus, fracture of scapula right side. On the point of disability the applicant has relied upon the evidence of Dr.Ravindra Khedekar who had examined her on 07/01/2003. He noted the same injuries on his clinical examination sustained by the applicant as referred in the discharge card of the Sadanand Hospital. Dr.Khedekar has opined that the applicant had suffered 45% permanent partial disability. The insurers have cross examined the applicant in which it has come that Dr.Khedekar had not taken fresh x-ray nor seen previous x-rays. Only on his clinical examination he concluded that the applicant had suffered malunited fracture of right clavicle. His disability certificate is at Ex.18. Dr.khedekar had noted that the applicant had mulunited fracture of right clavicle and that the applicant had limitation of terminal abduction of right shoulders by 30 degree. Besides that her hip movements are painful and she had difficulty with in sitting cross legged, in squatting position and difficulty in walking fast. In the light of number of injuries and the fracture sustained by the applicant it cannot be said that the disability opined by Dr.Khedekar is exaggerated.” 3 The total compensation amount of Rs.1,29,440/- has been awarded. Prima facie the quantum of compensation amount seems to be reasonable. 3. As far as the liability of the applicant insurer is concerned, in the event the applicant succeeds in the appeal, the applicant can always recover the amount of compensation from the insurer by executing the same Award without filing any further proceedings. Therefore, no case is made out for grant of stay. Application is rejected. However, withdrawal of the amount by the first respondent/claimant will be subject to final outcome of the appeal. 4. A sum of Rs.25,000/- shall be transferred to the Tribunal. (A.S.OKA, J.) 4