-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.1581 OF 2007 APPEAL NO.1581 OF 2007 APPEAL NO.1581 OF 2007 The New India Assurance Co.Ltd. ...Appellant vs. Ashwini Arvind Jamkar & Ors. ...Respondents Mr.S.R.Singh for the Appellant CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : FEBRUARY 18, 2008 : FEBRUARY 18, 2008 : FEBRUARY 18, 2008 P.C.: P.C.: P.C.: 1. Heard learned counsel for the Appellant. The Appellant is the opponent No.4 in the claim petition filed by the Respondent Nos.1 to 5. The claim petition arises out of a fatal accident. The deceased was travelling in a jeep. A dash was given to the jeep by a luxury bus. The first opponent in the claim petition is the owner of the luxury bus and the second opponent is insurer of the luxury bus. The third opponent in the claim petition is the owner of the jeep which was insured with the present Appellant. 2. In so far as the owner and insurer of the luxury bus are concerned, the claimants entered into a settlement with them before the Lok Adalat under which they accepted compensation of Rs.1,85,000/-. After the trial the learned Member of the tribunal held that the accident occurred due to negligence of the drivers of both the vehicles involved in the accident. The tribunal found that the claimants were entitled to compensation of Rs.3,72,500/-. After deducting amount of -2- Rs.1,85,000/- accepted by the claimants from the insurer of the luxury bus, for rest of the amount an Award has been passed by the Tribunal against the Appellant and the insured i.e. the owner of the jeep. 3. The first submission of the learned counsel for the Appellant is that the compensation amount granted is on the higher side. The second submission is that the Appellant was not liable as the deceased was not a bonafide passenger in the jeep. In so as the first submission is concerned, the same is not available as the Advocate for the Appellant is unable to produce a copy of order passed by the tribunal granting a leave under section 170 of the Motor Vehicles Act,1988 in favour of the Appellant. The second submission is not canvassed before the tribunal. The tribunal has reproduced the contentions raised by the Appellant in the written statement in paragraph 5 of its Judgment. From the said paragraph and from the issues framed and the discussion in the body of the Judgment it appears that the said contention was not pressed into service by the Appellant. Therefore, the Appellant cannot be allowed to canvass the said submission for the first time in Appeal before this Court. 4. In the circumstances, there is no merit in the Appeal and the same is accordingly dismissed with no order as to costs. A sum of Rs.25,000/- deposited by the Appellant in this court together with interest accrued thereon shall be refunded to -3- the Appellant. JUDGE JUDGE JUDGE