1. Heard learned advocate Ms. Megha Jani appearing on behalf of appellant ? National Insurance Company Limited.

2. The appellant has challenged award passed by MACT, Panchmahalas at Godhra decided on 30th December 2008 in MACP no.826 of 1995. The claims tribunal has awarded Rs.1,54,500/- with 9% interest upto 31st December 2000, thereafter, 7.5% interest. The claimant has filed application under Section 166 of

M.V. Act.

3. Learned advocate Ms. Jani raised contention that cheque paid by owner of vehicle towards payment of premium for insurance policy was dishonoured and subsequently, policy of insurance was cancelled by appellant insurance company and informed to owner of vehicle and RTO, Agra which documents are on record and admitted by claimant, even though, claims tribunal has come to conclusion that policy was not cancelled and it remained in existence, because, intimation to owner about dishonour of cheque and intimation to RTO, Agra whether it has been reached to owner of vehicle and RTO, Agra or not ? For that, there was no evidence on record which established facts by insurance company. Therefore, claims tribunal has come to conclusion that in absence of acknowledgment, it is not proved by insurance company before claims tribunal that intimation which has been given to owner of vehicle and RTO, Agra is reached to both parties. The documents which has been placed before this Court for perusal of this Court i.e. written statement filed by appellant insurance company, copy of cover note, copy of cancelled renewal notice, copy of cancelled cover note, copies of cheque, bank memo and debit advice, copy of notice of cancellation of policy, copy of application given by claimants to cancel exhibited

4. I have considered these documents which have been placed before this Court for perusal.

5. The second contention raised by learned advocate Ms. Jani is that against driver and owner, claim petition is dismissed by claims tribunal. Therefore, in absence of driver and in absence of owner, insurance company is not at all liable to pay compensation to claimant. Learned advocate Ms. Jani referred each documents which are placed before this Court for perusal and she also referred Para 14, where finding is given by claims tribunal and Para 4, where claim petition is dismissed by claims tribunal against respondent Nos.1 and 2.

6. The facts, which are almost between parties, are not in dispute. The claim petition is dismissed against respondent Nos.1 and 2 means driver and owner, therefore, insurance company is not liable, that contention was not raised in written statement, even that contention was not argued before claims tribunal by advocate of insurance company, then, it has been raised first time taking advantage before this Court being a legal contention, this Court cannot permit appellant to raise first time such contention which was not raised before claims tribunal. The opportunity was available to appellant because in their presence, claims tribunal has dismissed claim petition against respondent No.1 and 2, even though, appellant insurance company remained silent, reasons best known to them, but, one fact is very clear that no such contention was raised before claims tribunal. Therefore, this Court cannot permit appellant to raise such contention first time before this Court.

7. The another contention is that intimation is sent to owner of vehicle as well as RTO, Agra which is required under Section 64-VB of 1938 Act, which provides that no risk is to be assumed unless premium is received in advance in the following terms. It is observed by Apex Court in case of Deddappa and others documents and copy of reply to application of cancellation of exhibited documents filed by appellant insurance company v. Branch Manager, National Insurance Co. Ltd. reported in (2008) 2 SCC 595, relevant Para 14 is quoted as under :

14. Section 64-VB of the 1938 Act provides that no risk is to be assumed unless premium is re