( 1 ) HEARD learned advocate Ms. Megha Jani for the appellant - Insurance Co.

( 2 ) IN the present appeal, the appellant - Insurance Co. is challenging the award passed by MAC Tribunal, Viramgam in MACP No. 57 of 2006, Exh. 45, dated 16. 11. 2007 whereby the claims Tribunal has awarded Rs. 1,17,150/- in favour of respondents claimants with 7. 5% interest.

( 3 ) TODAY, proposed amendment is placed on record. Same is allowed with a direction to the appellant to carry out the same within a period of three days from today.

( 4 ) THIS Court has also taken into account the contentions raised in the amendment that auto-rickshaw driver has not entered into witness box and no other evidence is produced by respondents contradicting the version of the claimant. The motor cycle was driven on correct side of the road and in slow speed and that the rickshaw collided while coming at great speed. The FIR filed by claimant also suggests negligence of driver of auto-rickshaw and therefore, finding given by claims Tribunal holding both the drivers 50-50% negligence is erroneous and contrary to record.

( 5 ) LEARNED advocate Ms. Megha Jani has not raised any contention in respect to liability of pillion rider, as risk is not covered. Because of the Circular of Tarrif Advisory Board, it covered the risk of pillion rider being a third party. Therefore, this contention is not to be decided by this Court. No doubt, it has been raised in the memo of appeal. Today, it has been made it clear by learned advocate Ms. Megha Jani. The permission under Section 170 of the MV Act is made available to the Insurance Co. to argue the matter on merits. Therefore, the question of negligence has been raised before this Court.

( 6 ) LEARNED advocate Ms. Megha Jani has raised contention before this Court that claims Tribunal has failed to appreciate that the claimant was a pillion rider of the insured vehicle at the time of accident and the insurance policy does not cover the risk of passenger namely pillion rider. She has also contended that claims Tribunal has failed to appreciate the ratio laid down by the Apex Court in case of United India Assurance Co. Ltd. v. Tilak Singh and others reported in 2006 (4) SCC 404 wherein it is held that if policy does not cover the risk of death or bodily injury to gratuitous passengers, the Insurance Co. cannot be held liable to indemnify the insured. She also raised contention that policy of insurance pertaining to present case, no premium was paid covering risk of passenger or pillion rider and therefore, Insurance Co. should be exonerated and cannot be held liable to indemnify the insured and no award can be passed against the Insurance Co.

( 7 ) IT is necessary to note that that after perusing the award in question passed by claims Tribunal, no such point was raised by Insurance Co. before the claims Tribunal. The claims Tribunal has examined Issue No. 1 and held that both the drivers were equally rash and negligent for causing the accident and claimant - pillion rider of motor cycle had sustained fracture injuries. Therefore, both the vehicles are held liable for negligence to the extent of 50-50%. The claims Tribunal has observed in award that "it is not proved by the insurer of the motor cycle that premium of pillion rider was not paid or his risk was not covered in the policy. " This hand written observations in the award bears signature of claims Tribunal and not disputed by Insurance Co. before the claims Tribunal and also not raised contention before this Court that aforesaid hand written observations are not correct. When appellant - Insurance Co. has not raised contention before the claims Tribunal as mentioned in appeal memo, then naturally the claims Tribunal had no occasion to dealt with such contention. The point which is not found in award, the presumption is that such point is not raised by appellant - Insurance Co. before the claims Tribunal. Recently, the same view taken by the Apex Court in case of Mohd. Akra

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