ash 1 fa-1337.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1337 OF 2009 The New India Assurance Co. Ltd. .. Appellant Vs Lahu Ramaji Kamble & Anr. .. Respondents -- Shri S.M. Dange for the Appellant. Shri T.J. Mendon for the Respondents. -- CORAM ; A.S. OKA, J DATED : 15TH JUNE, 2011 P.C. . Heard learned counsel appearing for the Appellant. The challenge in this Appeal is to an award made under Section 166 of the Motors Vehicles Act, 1988. The 1st Respondent ( Original Claimants ) is the father of the deceased. The deceased was a 12 years old boy who died in a motor accident. The Appellant is the insurer of the offending motor car. 2. There are two contentions raised by learned counsel appearing for the Appellant. The first contention is that the Appellant is not liable inasmuch as the deceased was a gratuitous passenger in a goods vehicle. His second contention is that a sum of Rs.1 lakh granted as the compensation is excessive. As far as the first contention is concerned, he submitted that though the Appellant may not have ash 2 fa-1337.09 pleaded it as a defence in the Written Statement, the fact that the deceased was a gratuitous passenger is borne out by the records of the case and, therefore, the same ought to have been considered by the Tribunal. 3. I have given careful consideration to the submissions. Perusal of a copy of the Written Statement tendered across the bar shows that the defence that the deceased was a gratuitous passenger in the goods vehicle and, therefore, the Appellant was not liable has not been taken in the Written Statement. Therefore, there was no issue framed by the Tribunal on this aspect. AS no such case was pleaded before the Tribunal, obviously the 1st Respondent was prevented from dealing with the said case. Hence, the Appellant cannot be permitted to raise the said objection. 4. The accident is of the year 2002. The age of the deceased boy was around 12 years. Therefore, the compensation of Rs.1 lakh granted by the Tribunal cannot be faulted with as the amount is reasonable. 5. There is no merit in the Appeal and the same is accordingly dismissed with no orders as to costs. ash 3 fa-1337.09 6. Civil Application No.3638 of 2009 does not survive and the same is disposed of. 7. The sum of Rs.25,000/- deposited by the Appellant be refunded to the Appellant with interest, if any, accrued thereon. ( A.S. OKA, J )