1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.881 OF 2008 with C.A. No.2491/2008 The New India Assurance Company Through its Divisional Manager, Adalat Road, Aurangabad. ...APPELLANT (Orig.Resp.No.3. VERSUS 1. Vitthal s/o Bapurao Thube, age 48 years, Occ. Agri. & Household r/o Pokhari, Tq. Vaijapur, Dist. Aurangabad and two others. ...RESPONDENTS ... Mr. S.G.Chapalgaonkar, Adv., for the appellant. Mr. V.B.Garud, Adv., for respondent nos. 2 and 3. Respondent nos. 1 & 3 served. ... CORAM : K.U.CHANDIWAL, J. DATE : 11-6-2009 ... PER COURT : 1. Heard Counsel extensively. Mr. M.D.Shinde, Counsel for respondent no.1, absent. By consent of the Counsel, the matter is finally 2 heard. 2. The Insurance Company feels aggrieved by the order dt.26.9.2007 passed on an application under Section 140 of Motor Vehicles Act, no fault liability, directing original respondent No.3 insurance company and original respondent no.2 to pay the amount of Rs.25,000/- in the name of claimant Vitthal Bapurao Thube within one month and with interest at the rate of 6 per cent. The Counsel for the appellant Insurance Company informs that there is glaring breach of the terms of the Insurance as more than the permissible passengers were travelling in the vehicle which met with the accident. The liability of the Insurance Company, according to the Counsel, being not surfacing, the direction to pay the amount jointly and/or severally will not survive. 3. It may be that the Counsel for Insurance Company is correct, at this stage, however, since this objection was raised before the learned Judge, at the material time, he has in paragraph 5 of the order, stated that such 3 objection of the Insurance Company can be determined while deciding the application under Section 166 of the Motor Vehicles Act on merits. The order under challenge is dt. 26.9.2007. Much water has flown by the time. Consequently, without further adverting on the merits of the order under challenge, which is under No Fault Liability, the appeal is dismissed. No costs. It is clarified, the objection raised by the Insurance Company about its liability to indemnify is open to be considered while deciding the main petition. C.A. No.2491/2008 is disposed of. (K.U. CHANDIWAL), JUDGE agp/fa881-08