( 1 ) * * * *

( 2 ) THE grievance of the Insurance Company as the insurer of the motor-cycle is that the owner of the motor-cycle was not made a party to the petition and therefore no award could have been passed against the Insurance Company. It is a fact that the owner of the motor-cycle Dwarkadas Bhagwanbhai who was him-self driving the said vehicle was not made a party to Claim Petition No. 9 of 1976. It is clear on the face of it that no award could have been passed against the Insurance Company in absence of the owner because the owner is to be indemnified against the award which is likely to be passed against the owner. Mr. B. J. Shethna appearing for the respondents submitted that the Insurance Company had not taken up any such contention either in the written Statement or at any stage before the Tribunal and therefore the Insurance Company is not entitled to raise any such contention by filing the appeal. He also submitted that such a technical contention should not be permitted to be raised on behalf of the Insurance Company in the appeal when such a contention not raised before the Tribunal.

( 3 ) MR. Shethna drew our attention to a decision of the Supreme Court reported in State of Maharashtra v. Ramdas. Shrinivas Nayak AIR 1982 S. C. 1249 in support of his submission. We fail to understand how this decision of the Supreme Court can at all be pressed into service the present case. There the question was whether after making a concession before the High Court it could be urged before the Supreme Court that no such concession was made and the Supreme Court held that such a plea cannot be allowed to be taken before the Supreme Court. The Supreme Court even in that case observed as follows:"of course a party may resile and an Appellate Court may permit him in tare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but may not call in question the very fact of making the concession as recorded in judgment". The Supreme Court was thus considering the contention raised before it that such concession was never made and when such concession was recorded in the judgment delivered by the High Court the Supreme Court refused permission to the appellant to raise a contention that no such concession was made. This decision of the Supreme Court is thus not of any assistance in the present case.

( 4 ) MR. Shethna also drew our attention to a decision of the Himachal Pradesh High Court reported in the case of Mangal Chand v. The Forest Department through Divisional Forest Officer Nichar I. L. R. 1984 Himachal Pradesh 259 The learned Chief Justice of the Himachal Pradesh High Court has observed therein that tribunals and quasi-judicial authorities must always bear in mind that whereas refusal to condone delay might result in injustice by a meritorious case being thrown out without trial condonation of delay would at the highest result in decision of the case on merits. We fail to under- stand how this decision of the Himachal Pradesh High Court is of any assistance in the present case. The contention which is raised by filing this appeal cannot be said to be of a technical nature. The Insurance Company has insured the owner of the motor-cycle. By insuring the owner of the motor-cycle the Insurance Company has agreed to indemnify whatever compensation he might have to pay for the injuries caused by the vehicle in question. The question of the; Insurance Company paying the amount of compensation will arise only if and when there is some award passed against the owner of the vehicle. When the owner of the vehicle is not made a party question of passing any award against the Insurance Company does- not arise. No award could have been passed and the Tribunal had even no jurisdiction to pass such an award against the Insurance Company in absence of the owner. The question which is raised by filing the appeal thus goes