By way of this application, the applicant has approached this Court for recalling and modifying the order dated 08.12.2011, passed by this Court in First Appeal No.1957 of 1997.
Learned advocate Mr.Rajni Mehta for the applicant has submitted that though the specific contention was raised that the vehicle in question was goods vehicle and original claimant was unauthorized passenger before the Tribunal and the Tribunal has also noted that in Paragraph No.9 of the judgment of the Tribunal, the Court has arrived at conclusion that no such contention was raised before the Tribunal and therefore, the appeal requires reconsideration. The specific ground is raised by the applicant in Ground No.3 of the application memo. He has further submitted that the interest at the rate of 15%, awarded by the Tribunal is on higher side.
I have heard learned advocate Mr.Mehta at length. From the arguments shown in Paragraph No.9 of the judgment of the Tribunal, it was mentioned by the Tribunal that the original claimant was unauthorized passenger, but, the breach of condition of the policy was not mentioned. Therefore, this Court has recorded finding in the Paragraph No.3 of the order that "the policy expressly prohibited carriage of passengers on hire or for reward and therefore, the Tribunal ought not to have held the appellant-Insurance Company liable. The above contention raised by the appellant is legal and valid, however, I find that no such submission was ever raised at the time of arguments before the Tribunal".
In that view of the matter, I am of the opinion that though the contention of unauthorized passenger is raised, but, the contention of breach of condition was not raised. Further, learned advocate for the applicant has contended that the interest awarded at the rate of 15% is on higher side, but, no such contention is shown in the memo of the application, therefore, that contention does not deserved to be considered.
In the circumstances, the application deserves to be dismissed and accordingly dismissed.
[K.S.JHAVERI, J.] ..mitesh..
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