1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 229 OF 1996 The New India Assurance Company Limited, ) having its Branch Office at Moledina Road, ) Pune – 411 001 and having its Regional ) Office at Sharada Centre, II Floor, ) Behind Nal Stop, Pune. ).. Appellant (Org. Respondent No.3) Versus 1. Smt. Hirabai Jalinder Thokale, ) Age about 47 years, ) Occupation – Household. ) 2. Shri Ravi Jalinder Thokale, ) age about 21 years, ) Occupation – Service. ) 3. Smt. Rekha Jalinder Thokale, ) Age about 19 years, ) Occupation – Student. ) 4. Master Suresh Jalinder Thokale, ) age about 17 years, ) Occupation – Student. ) 5. Master Subhash Jalinder Thokale, ) Age about 15 years, ) Occupation – Student, ) ( Nos.4 and 5 minors by their natural ) guardian and mother : Respondent No.1.) 6. Shri Shankar Sadashiv Thokale, ) Age 77 years, Occupation- Nil, ) ( Deleted as per Order dt.14.2.02.) ) 7. Sou. Parubai Shankar Thokale, ) Age 67 years, Occ: House-wife, ) All respondents No.1 to 7 residing ) Bharat Nagar, Yaravada, ) Pune – 411 006. ) 8. Shri Abdul Jafar Maniyar, ) 2 Adult, Occupation – Driver, ) Residing at Vishrantwadi, ) Pune – 411 015. ) 9. Shri Shaikh Munir Noor Mohamed, ) Adult, Occupation – Business, ) Residing at Kondhva, Budruk, ) Taluka Haveli, Dist. - Pune. ).. Respondents -- Shri M.G. Barve for the Appellant. Shri S.V. Sadavarte for the Respondent Nos.1 to 5 and 7. -- CORAM : A.S.OKA, J. DATE : 8TH FEBRUARY, 2010 ORAL JUDGMENT: . Heard learned counsel appearing for the Appellant. The Appellant is the Insurer of the vehicle involved in an accident. The challenge in this First Appeal is to a judgment and award dated 13th November, 1995 passed by the Motor Accident Claims Tribunal, Pune, in a Claim Petition under Section 110-A of the Motor Vehicles Act, 1939. The Respondent Nos.1 to 7 are the original Claimants. The claim was filed for compensation on account of demise of one Jalinder in an accident. The 1st Respondent is the widow of the deceased and the 2nd to 5th Respondents are the children of the deceased and the 6th and 7th Respondents are the parents of the deceased. The case of the original claimants is that the deceased was working with one Subhash Gondal and was accompanying his goods in a pick-up van No.MTF 2570. According to the case of the Claimants, the original Opponent No.1 (8th Respondent ) was driving the said pick-up Van 3 at the relevant time in a rash and negligent manner. The 9th Respondent was the owner of the vehicle at the relevant time. By the impugned judgment and award, the Tribunal granted total compensation of Rs. 1,50,000/- to the original claimants with interest thereon at the rate of 12% per annum. 2. The learned counsel appearing for the Appellant/Insurer invited my attention to a Written Statement of the Appellant. The first contention is that in view of what is stated in Paragraph 3 of the Written Statement, on the date of the accident, there was no valid policy of the insurance. He invited my attention to the averments made in Paragraph 7A of the Written Statement in which it is contended that the vehicle was insured at the relevant time as a commercial vehicle for covering the third party risk. He submitted that in the Written Statement, it is stated that the Appellant had accepted a premium of Rs.240/- towards liability of public risk for covering the third party and, as the deceased is not a third party, his liability was not covered. He submitted that the learned Member of the Tribunal has misread the contention in Paragraph 7A by observing that the Appellant accepted the liability to the extent of Rs.1,50,000/-. He submitted that a copy of the policy insurance was at Exhibit-58 which was marked as exhibit by the consent of the parties and, therefore, the learned Member of the Tribunal ought to have read the policy in evidence. He submitted that in the Written Statement, it is specifically averred that the driver involved in the accident was prosecuted on the ground that he was 4 not possessing a proper driving license. The policy has been exhibited without objection of the parties. He submitted that no evidence was adduced by the Claimants to show that the driver of the vehicle was possessing a valid driving license at the relevant time. The driver of the vehicle did not appear and therefore, it was not necessary for the Appellant to give notice to the owner and the driver to produce the said document. He submitted that all these aspects which go to the root of the matter have not been considered by the learned Member of the Tribunal. 3. I have carefully considered the submissions. At the outset, it must be stated that the impugned judgment and award does not show that the aforesaid contentions which are argued in the First Appeal were agitated before the learned Member of the Tribunal. The learned counsel appearing for the Appellant has invited my attention to the grounds in the memorandum of Appeal. In none of the grounds in the memorandum of Appeal it has been stated that the said contentions have been urged before the Tribunal and the Tribunal has not considered the same. Learned counsel appearing for the Appellant sought time to carry out amendment to the Memorandum of Appeal for contending that the said contentions were raised before the Tribunal but the same have not been considered. The Claim Petition is filed in the year 1988 which was decided in the year 1995. The present Appeal was preferred in the month of February, 1996. The Appeal has reached for final hearing in February, 2010 and now the Appellant wants to amend the Memorandum of Appeal for raising a 5 contention that the aforesaid contentions were raised before the Tribunal. Therefore, permission to amend the Memorandum of Appeal at this stage cannot be granted. If the case of the learned counsel appearing for the Appellant that the aforesaid contentions were specifically agitated at the time of final hearing was really true, when the Memorandum of Appeal was filed in the month of February, 1996 that would have been the first ground. Apart from this, it must be necessary to record here the manner in which the Appellant has contested the claim petition. Rozanama of the case shows that the Appellant was served with a notice of the claim petition way back in the year 1988 and on 14th December, 1988, an application was made by the Appellant for grant of time to file Written Statement. The adjournments were thereafter granted to the Appellant from time to time and ultimately on 15th March, 1989, an award under Section 92A of the said Act of 1939 was passed against the Appellant. On 9th October, 1989, an order was passed by the Tribunal against the Appellant that the Written Statement was not filed and the Claim Petition will proceed ex parte. The issues were framed on 9th October, 1989. Thereafter, the claim petition was adjourned from time to time. On 14th July, 1995, an application was made by the Appellant to take the Written Statement on record. The said application was allowed and on the very day, the deposition of the witness of the claimants examined was recorded. On 27th September, 1995, an application was made by the Appellant for amendment of the Written Statement. The said application was also allowed. On 9th October, 1995 and on 12th October, 1995, the applications were made by the Appellant for 6 seeking time to adduce evidence. However, no evidence was adduced by the Appellant. On 30th October, 1995, arguments of the learned counsel appearing for the parties were heard by the Tribunal. This shows that there was no attempt made by the Appellant of getting the issues recasted on the basis of the written statement and amended written statement. There are no issues framed by the Tribunal on any of the contentions raised by the learned counsel appearing for the Appellant. Though the Appellant could file an application for amendment to the Written Statement within few months from the date on which the Written Statement was belatedly filed, no application was made by the Appellant for recasting of the issues. 4. Perusal of the evidence of the1st Respondent and the other two witnesses shows that in the cross-examination, the case which is now sought to be made out by the Appellant was not put to the witnesses. It is thus obvious that none of the contentions raised by the Appellant in this Appeal across the bar were agitated by the Appellant before the Tribunal. Apart from all these, the Appellant could have always given notice to produce the driving licence to the owner as well as the driver of the vehicle but that was not done. Only on the basis of a copy of the FIR, the Tribunal cannot jump to the conclusion that the driver of the vehicle was not possessing a valid driving license. 7 5. In the circumstances, the contentions which are raised by the Appellant across the bar cannot be considered and even otherwise there is no merit in the said contentions. Hence, no case for interference is made out with the impugned judgment and award passed by the Tribunal. The Appeal accordingly is dismissed. No order as to costs. 6. At this stage, the learned counsel appearing for the Appellant prays for a leave to prefer an Appeal before the Apex Court. The prayer is rejected. (A.S.OKA, J) ash/