1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION FIRST APPEAL NO. 575 OF 2010 A/W CIVIL APPLICATION NO. 1220 OF 2009 IN FIRST APPEAL NO. 575 OF 2010 The National Insurance Co. Ltd. .. Appellant ( Org. Insurer ) Vs Rafiq Bechne & Anr. .. Respondents -- Ms Beena Pillai i/by D.Shalini Shankar for the Appellant. -- CORAM : A.S.OKA, J. DATE : 24TH AUGUST, 2010 P.C: . The appellant which is the Insurer of the vehicle involved in the accident has taken an exception to the judgment and order dated 21st August, 2008 passed by the learned Commissioner of the Workmen’s Compensation, Mumbai. Learned counsel appearing for the Appellant submitted that on the date on which the accident occurred, the 1st Respondent ( the first Opposite Party to the claim application ) was not the owner of the vehicle insured with the Appellant. The learned counsel appearing for the Appellant invited attention of the Court to a finding recorded in Paragraph 9 of the judgment. The learned counsel submitted that without giving any reason, the learned Commissioner has straightaway jumped to the conclusion that the truck was insured with the Appellant and that the Appellant was liable to pay compensation. Reliance is placed by 2 the learned counsel appearing for the Appellant on various documents along with memorandum of appeal including a report on investigation by M/s. V.B. Associates. It is submitted that as this issue goes to the root of the matter, the appeal is required to be admitted. Lastly, it is submitted that an order of remand be passed in order to enable the Appellant to adduce evidence to prove that on the date of accident the truck was transferred to a third party. 2. I have considered the submissions. Firstly, the contention which is raised across the bar by the learned counsel appearing for the Appellant, has not been specifically raised in the written statement. In the writtten statement, the emphasis appears to be on the absence of relationship of employer and employee. The factual contention that the 1st Respondent had already transferred the truck is not at all raised. Apart from this, there is no evidence adduced by the Appellant. It is not the case of the Appellant that the learned Commissioner did not grant any opportunity to adduce the evidence. 3. The record of the case was called for by this Court. The record shows that on 6th September, 2007, the case was specifically fixed for recording of the evidence of the Appellant. Thereafter, the case was adjourned to 11th October, 2007, 29th November, 2007, 13th December, 2007, 10th January, 2008 and 17th January, 2008 for recording the evidence of the Appellant. On 17th January, 2008, last chance was granted to the 3 Appellant to adduce evidence. The case was adjourned to 7th February, 2008. Though the last chance was granted, the case was again adjourned to enable the Appellant to adduce evidence on various dates. The case was fixed on 28th February, 2008, 13th March, 2008 and 3rd April, 2008. The Appellant filed a purshis closing the evidence. Thus, the Roznama shows that from September, 2007 till April, 2008, the case was repeatedly adjourned to enable the Appellant to adduce the evidence. However, the Appellant has not chosen to lead any evidence. 4. Now, the Appellant is relying upon the investigation report of M/s. V.B. Associates. It appears that the said report was not exhibited on record of the learned Commissioner. Moreover, a copy of the report annexed to the appeal memo shows that the report was submitted “without prejudice”. After having failed to raise the contention in the Written Statement and after having failed to adduce the evidence, now the Appellant cannot be permitted to agitate that the 1st Respondent was not the owner of the truck on the date of accident. Moreover, there is no application filed in the appeal for seeking permission to lead any additional evidence. There is no merit in the appeal. The appeal is accordingly dismissed. 5. Civil Application No.1220 of 2009 does not survive and the same is disposed of. (A.S.OKA, J)