( 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. 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. Akram Ansari v. Chief Election Officer and Ors. reported in 2008 AIR SCW 416. Relevant observations of the said decision are in Para. 14 which are quoted as under : "14. before the claims Tribunal. Recently, the same view taken by the Apex Court in case of Mohd. Akram Ansari v. Chief Election Officer and Ors. reported in 2008 AIR SCW 416. Relevant observations of the said decision are in Para. 14 which are quoted as under : "14. In this connection we would like to say that there is a presumption in law that a Judge deals with all the points which have been pressed before him. It often happens that in a petition or appeal several points are taken in the memorandum of the petition or appeal, but at the time of arguments only some of these points are pressed. Naturally a Judge will deal only with the points which are pressed before him in the arguments and it will be presumed that the appellant gave up the other points, otherwise he would have dealt with them also. If a point is not mentioned in the judgment of a Court, the presumption is that that point was never pressed before the learned Judge and it was given up. However, that is a rebut table presumption. In case the petitioner contends that he had pressed that point also (which has not been dealt with in the impugned judgment), it is open to him to file an application before the same learned Judge (or Bench) which delivered the impugned judgment, and if he satisfies the Judge (or Bench) that the other points were in fact pressed, but were not dealt with in the impugned judgment, it is open to the concerned Court to pass appropriate orders, including an order of review. However, it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum filed before the Court below, has not been dealt with in the judgment of the Court below. The party who has this grievance must approach the same Court which passed the judgment, and urge that the other points were pressed but not dealt with. ( 8 ) APART from that, this contention is raised before this Court that risk of pillion rider is not covered in the insurance policy issued by Insurance Co. Learned advocate Ms. Megha Jani has admitted before this Court that policy issued in favour of insured being a comprehensive policy. The date of accident is 30. 9. 2006. ( 8 ) APART from that, this contention is raised before this Court that risk of pillion rider is not covered in the insurance policy issued by Insurance Co. Learned advocate Ms. Megha Jani has admitted before this Court that policy issued in favour of insured being a comprehensive policy. The date of accident is 30. 9. 2006. The Tarrif Advisory Committee has issued the circular dated 24. 6. 1986 in respect to reworded the comprehensive policy, Sheet No. 59 of the IMT which covered any person including person conveyed in or on the Motor Cycle provided such person is not carried for hire or reward. It is not the case of the Insurance Co. before this Court and even before the claims Tribunal that pillion rider was carried for hire or reward on the date of accident. The aforesaid circular is quoted as under : THE oriental INSURANCE CO. LTD. HEAD OFFICE : ORIENTAL HOUSE, A-25/27, ASAF ALI ROAD , NEW DELHI - 110 002. Regional office 3rd floor, Kalidas Chambers, Nr. Dinbai Tower, Laldarwaja , Ahmedabad-380 001. Dt . 24th June, 1986. ERO Circular no. ERO/tech/mot/22/86/mr Our circular no. ARO/accdt/22/86 To all Divisional officers/branch Offices Re : Compensation to Pillion Riders. We produce below the clarification received from Tarrif Advisory committee, Bombay on the subject. You will find the contents of the circular reproduce below self- explanatory. No. MOT/gen/10 dated 2. 6. 86. Insurer's attention is invited to Section II ( 1) (a) of Standard Form for Motor cycle, Comprehensive Policy, Sheet 59 of the IMT. It has now been decided that the Standard Motor Cycle Comprehensive Policy should cover liability to pillion Passengers treating them as occupants in the Motor Cycle and provide indemnity to such persons who are not carried for hire or reward. Accordingly, Extra Benefit no. 2 granting legal liability to cover side car passengers will stand deleted and Standard Cover under 2death or bodily injury to any person including person conveyed in or on the Motor Cycle provided such person is not carried for hire or reward. sd /- REGIONAL MANAGER ( 9 ) THIS Court had an occasion to consider the same contention raised by learned advocate Ms. Megha Jani in FA No. 5007 of 2008 decided on 20. 10. 2008 wherein this Court has considered aforesaid circular. Relevant observations made by this Court in aforesaid decision are in Para. sd /- REGIONAL MANAGER ( 9 ) THIS Court had an occasion to consider the same contention raised by learned advocate Ms. Megha Jani in FA No. 5007 of 2008 decided on 20. 10. 2008 wherein this Court has considered aforesaid circular. Relevant observations made by this Court in aforesaid decision are in Para. 13 to 21 which are quoted as under : "13. In view of the aforesaid law as referred by this Court and relied upon by learned advocate Ms. Megha Jani, the question is that whether pillion rider in private vehicle covered by definition of 'any person / third party/ occupant, so Insurance Co. is held to be liable for payment of compensation to the claimants. The decision which has been relied upon by her where nowhere direction of the Tariff Advisory Committee has been considered by Apex Court. In the decision of Sudhakaran K. V. (supra) also, Apex Court has examined issue whether pillion rider is covered as a third party or any person under Section 147 of the MV Act. In decision of Tilak Singh (supra), Apex Court has considered Section 147 of the MV Act and terms of insurance policy where risk of pillion rider is not covered because additional premium was not paid by insured. But before Apex Court, direction of Tariff Advisory Committee issued to all the insurer that Tariff Advisory Committee has taken the decision relating to clause-1 of Section-II (a) is to be substituted by way of amendment in respect of 'any person' such occupants is to be included. 14. In this matter, this court has examined whether insurance company is liable to pay compensation to claimant or not in case of an accident wherein pillion rider has received injury or has expired in such an accident. In decision of apex court which has been relied upon by learned Advocate Ms. Megha Jani, apex court has considered only scope of section 147 of Motor Vehicles Act and in light of that fact, whether pillion rider is to be considered third party or not, only that question has been examined by Hon'ble Supreme Court in decision referred to and relied upon by learned Advocate Ms. Megha Jani. The Apex Court has come to conclusion that pillion rider is not considered to be third party, therefore, insurance company is not liable to pay compensation to claimant. Owner is not a third party. Megha Jani. The Apex Court has come to conclusion that pillion rider is not considered to be third party, therefore, insurance company is not liable to pay compensation to claimant. Owner is not a third party. If motor cycle is driven by owner and his wife is sitting on motor cycle as pillion rider and accident occurs, then, though owner has paid premium for obtaining insurance, then also, as per interpretation of section 147 made by apex court, result is that owner of motor cycle and his wife both are not considered to be third party when accident occurred without involvement of opposite vehicle. Therefore, owner is not third party, pillion rider is also not a third party, then, for whom insurance was taken by owner and for what and why amount of insurance was paid by owner to insurance company. According to my opinion, insurance company plays trick with its customers by not giving total details which are necessary and in the interest of insured while entering into contract of insurance with owner of vehicle. According to my opinion, owner who is purchasing and owning motor cycle worth Rs. 40,000/- to Rs. 50,000/- would be having no problem to make payment of additional premium of petty amount of Rs. 100. 00 or so while getting vehicle insured to cover risk in all respects. But complete details are not given to owner whether his risk is covered in all respects or not by insurance company and insurance company while entering into contract of insurance, not providing complete details that for covering risks in all respects, this much additional premium is necessary so as to cover risk of owner/person driving motor cycle and pillion rider. This is the business approach or trick which is being played by insurance companies with customers who are approaching insurance company for getting their motor cycle insured in all respects. Initially, insurance company will get business by playing such tricks and then, when claim is lodged, insurance company will defend such claim by teeth and nail and in such a situation, ultimate suffer is injured and pillion rider. It cannot be presumed that in motor cycle, pillion rider is taken by driver or owner of motor cycle on hire or reward. It cannot be presumed that in motor cycle, pillion rider is taken by driver or owner of motor cycle on hire or reward. This is impossible even to imagine and pillion rider of motor cycle would ordinarily be a friend or relative or it would be a social service rendered by owner/driver of motor cycle. Therefore, according to my opinion, while getting business, insurance company must disclose true and correct picture before owner of motor cycle but unfortunately being business tactics, these facts are not being disclosed by insurance company before owner of motor cycle who is approaching insurance company for getting their vehicle insured in all respects. Normally persons would not be aware about such tactics which are being adopted by insurance company, so, ultimately, insurance company will deny responsibility and ultimate suffer will be pillion rider. According to my opinion, such type of approach and business tactics adopted by insurance company is required to be condemned. This Court has gathered facts from number of such instances where such type of defences are always being raised by insurance company by placing reliance upon decision of apex court wherein apex court has interpreted only section 147 of Motor Vehicles Act. Considering whether insurance company is statutorily liable to pay compensation to claimant in respect of claim of pillion rider and owner, answer given by apex court in negative but according to my opinion, in said decision relied upon by learned Advocate Ms. Megha Jani, the Apex Court has considered only statutory liability of insurance company in above said decisions. However, I am considering whether this liability of insurance company is arising from contractual liability means as per terms and conditions incorporated in insurance policy or not. If insurance company is contractually liable to cover risk of pillion rider, then, insurance company is liable to discharge liability on the basis of terms and conditions incorporated in insurance policy, therefore, I am examining this matter only on the basis of fact whether insurance company is contractually liable or not in respect of pillion rider, to pay compensation to claimant of pillion rider. For that, I am relying upon Tariff Advisory Committee which had issued Circular dated 2nd June, 1986 which is relating to compensation to pillion riders. For that, I am relying upon Tariff Advisory Committee which had issued Circular dated 2nd June, 1986 which is relating to compensation to pillion riders. By said circular dated 2nd June, 1986, Insurer's attention was invited to section II (1) (a) of standard form for motor cycle, comprehensive policy, sheet 59 of the IMT. Under said Circular, it was decided that the standard motor cycle comprehensive policy should cover liability to pillion passengers treating them as occupants in the motor cycle and provide indemnity to such persons who are not carried for hire or reward. Accordingly, the extra benefit No. 2 granting legal liability to cover side car passengers was deleted and the standard cover under section 2 (1) (a) of the policy was worded like "death or bodily injury to any person including any person conveyed in or on the motor cycle provided such person is not carried for hire or reward. " And thereafter, Insurers are requested to issue necessary instructions to their Divisional / Branch offices accordingly. Said Circular dated 2nd June, 1986 is also applicable in Gujarat State, Ahmedabad. According to my opinion, said direction or circular issued by Tariff Advisory Committee is having statutory binding force upon the insurance companies but insurance companies are not amending their terms and conditions incorporated in policy of insurance in respect to motor cycle and that is how ultimate suffer is claimant of pillion rider, therefore, according to my opinion, considering aforesaid directions and circular dated 2nd June, 1986 issued by Tariff Advisory Committee, risk of pillion rider is covered being contractual liability of insurance company and insurance company cannot deny such contractual liability by merely placing reliance upon apex court decision wherein apex court has considered only sec. 147 of Motor Vehicles Act, therefore according to my opinion, said decisions of apex court referred to and relied upon by learned Advocate Ms. Megha Jani are not applicable to facts of this case. This aspect has been considered by Karnataka High Court in case of Oriental Insurance Co. Ltd. Versus Minaxi and others reported in 2000 ACJ 385 while relying upon earlier decision of Karnataka High Court in case of Kashmir D. Gudinho v. Kulkarni reported in 1998 ACJ 1427 . In said decision, Karnataka High Court has, after examining entire matter with all relevant decisions on issue, observed as under in para 12 to 20: "12. Ltd. Versus Minaxi and others reported in 2000 ACJ 385 while relying upon earlier decision of Karnataka High Court in case of Kashmir D. Gudinho v. Kulkarni reported in 1998 ACJ 1427 . In said decision, Karnataka High Court has, after examining entire matter with all relevant decisions on issue, observed as under in para 12 to 20: "12. When the matter was heard by me, I have also noticed that Sri C. K. Kambeyananda, one of the Senior Advocates on the panel of the Insurance Company present before Court, and therefore, I thought his assistance to decide the issue before me. It is his submission that on 2-6-1986, a circular came to be issued to cover the risk of pillion riders and with the issuance of that circular the amendment in the clause of the Insurance Policy very well covered the third party risk including the death or bodily injury to any person including person conveyed in or on the Motor Cycle provided such person is not carried for hire or reward. He specifically placed reliance on the reported decision of the learned single Judge of this Court reported in ILR 1996 Kant 3041 : (AIR 1996 Kant 396) and ILR 1997 Kant 1491 : (1997 AIHC 2159 ). The other decisions Sri Kambeyananda cited before me are : 1. ILR 1997 Kant 2697 : (1997 AIHC 4104) (National Insurance Co. Ltd. v. Smt. Rasheeda ). 2. ILR 1995 Kant 1637 (Shanthabai v. Shekappa ). 3. ILR 1991 Kant 2045 : (AIR 1992 Kant 3) (FB ). 4. AIR 1977 SC 1735 . 5. ILR 1996 Kar 3041 : (AIR 1996 Kant 396) (New India Assurance Co. Ltd. v. Nagarathna)6. Unreported judgment of the learned single Judge of this Court in MFA 2263/94 (DD 201. 1998 ). 13. It is relevant to point out here that the Tariff Advisory Committee had issued the Circular dated 2-6-1986 to cover the third party risk. In this context, I feel it appropriate to quote the said circular that came to be issued by the Tariff Advisory Committee, a copy thereof had been supplied to the Court by the learned counsel for the appellant in the first appeal, the same reads as hereunder : (PRIVATE and CONFIDENTIAL : ISSUED FOR THE USE OF INSURERS CARRYING ON general INSURANCE BUSINESS IN INDIA ). TARIFF ADVISORY COMMITTEE BOMBAY Ador House, 1st floor, 6, K. Dubash Marg , Bombay-400 023. MOT/gen/10 2nd June, 1986. To : All Regional Offices of : 1. National Insurance co. Ltd. , Calcutta . 2. The New India Assurance Co. . Ltd. , Bombay . 3. The Oriental insurance Co. Ltd. , Delhi . 4. United India insurance Co. Ltd. , Madras . Govt. Insc. Funds : 1. Maharashtra State , Bombay . 2. Gujarat State- Ahmedabad. 3. Kerala State-Trivandrum. 4. Karnataka state-Bangalore. Re : Compensation to Pillion Riders. Insurer's attention is invited to Section II ( 1) (a) of Standard Form for Motor cycle, Comprehensive Policy, Sheet 59 of the IMT. It has now been decided that the Standard Motor Cycle Comprehensive Policy should cover liability to pillion Passengers treating them as occupants in the Motor Cycle and provide indemnity to such persons who are not carried for hire or reward. Accordingly, Extra Benefit no. 2 granting legal liability to cover side car passengers will stand deleted and Standard Cover under Section 2 (1) (a) of the Policy are worded as under:- "death or bodily injury to any person including person conveyed in or on the Motor Cycle provided such person is not carried for hire or reward. " Insurers are requested to issue necessary instructions to their Divisional/branch offices accordingly. sd /- (Y. D. PATIL) SECRETARY C. C. to : Head Office of New India/ National/ Oriental/united india, Bombay/calcutta/delhi Madras Regional Committees, General Insurance corporation of India, Technical Department, Bombay, Govt. Audit Depts , Bombay/ Calcutta/ Delhi/madras. 14. Both the two accidents involved in these three appeals had taken place after coming into force of the Motor Vehicles Act, 1988, when the accident in the first two appeals had taken place on 27-9-1991, the accident in the third appeal had taken on 16-12-1990. Therefore, I feel it appropriate to advert to Section 147 of the Motor Vehicles Act, 1988 (Henceforth referred to in brief as 'act' ). The said Section deals with the requirements of the policies and limits of liability. To quote the same, the same reads as hereunder : "147. Therefore, I feel it appropriate to advert to Section 147 of the Motor Vehicles Act, 1988 (Henceforth referred to in brief as 'act' ). The said Section deals with the requirements of the policies and limits of liability. To quote the same, the same reads as hereunder : "147. Requirements of policies and limits of liability.- (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which- (a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)- (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person [including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place : provided that a policy shall not be required- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) If it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. Explanation.- For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely :-a) save as provided in clause (b), the amount of liability incurred; b) in respect of damage to any property of a third party, a limit of rupees six thousand : provided that any policy of insurance issued with any limited liability and in force immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. (4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons. 15. By reading the provision in Section 147 (1) (i), it appears to me that the policy one issuable by the Insurance Company must cover as against any liability which may be incurred by the owner of the vehicle in respect of the death or bodily injury to any person and must include the death or bodily injury or injuries likely to be suffered by the third parties too. It further appears to me that the term 'any person' used in the above Section also covers the pillion rider, for in the Explanation below the proviso thereto, it is clarified that the death or bodily injury to any person or damage to any property of a third person shall be deemed to have been caused by or to have arisen out of the use of the vehicle in a public place at the point of time of accident that occurred in a public place. Therefore, it is obvious that Section 147 of the Act contemplates coverage of risk of the third parties too, who suffered either bodily injury or death as the case may be. This interpretation of mine has got support in the decision of the learned single Judge reported in ILR 1997 Kant 2697 : (1997 AIHC 4104 ). In the said decision, at para (9) thereof, the learned single Judge had observed as hereunder : "9. A perusal of these observations per se reveals that in order to reject the plea raised therein that the expression third party is wide enough to cover all persons except, person and the insurer, the basis provided has been by the proviso to clause (ii) to Section 95 (i) of the Act of 1939. A perusal of these observations per se reveals that in order to reject the plea raised therein that the expression third party is wide enough to cover all persons except, person and the insurer, the basis provided has been by the proviso to clause (ii) to Section 95 (i) of the Act of 1939. No doubt under M. V. Act of 1939 proviso clearly says that policy is not required to cover the liability in respect of death or bodily injury to persons being carried in or upon entering or mounting or alighting from the vehicle at the time of occurrence of the event out of which the claim arises, subject to the exception which is indicated and provided by the expression 'except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of contract of employment'. The Section 95 of Act of 1939 very clearly provides by virtue of proviso II inserted therein, with exception to the passengers for hire or reward taken in the vehicles in which passengers are taken for hire or reward or who are taken by reason of contract, Insurance Policy will not be required to cover the risk of any person travelling in the vehicle who are not carried for hire or reward. This Clause II to the proviso to Section 95 of Old Act has been omitted from the new Act. The legislature has completely omitted to enact this clause in proviso to Section 147 (1) when it enacted Motor Vehicles Act 1988. It is to be assumed and presumed that Legislature when enacting the new Act and when enacting Section 147 knowingly changed the tenor of language and omitted proviso two to Section 95 of Act of 1939 and did not incorporate that in Section 147 of Act of 1988. It intended to provide something different and modified from the Scheme of Section 95 of Old Act under Section 147 to that extent. It is well settled principles of law that if under subsequent Act, the legislature changes the tenor of language, omits certain provisions from being incorporated which existed at the time of enactment of New Act replacing Old Act and the subject-matter, the intention emerging therefrom i. e. , the change has got to be given effect to. It is well settled principles of law that if under subsequent Act, the legislature changes the tenor of language, omits certain provisions from being incorporated which existed at the time of enactment of New Act replacing Old Act and the subject-matter, the intention emerging therefrom i. e. , the change has got to be given effect to. The effect of change of language is revelation of legislative intent that expression 'any person' and the third party used in the Act will also include any person even travelling in the vehicle without paying any hire etc. If the Legislature would not have different intents in enacting Section 147 of Act of 1988 than revealed by Section 95 of Old Act into, it would have incorporated in extenso Section 95 of the Act of 1939 in the Act of 1988 as it did exist in Act of 1939. The Parliament would not have omitted Clause II to proviso to Section 95 (1) when it enacted Section 147. Therefore, in my opinion the expression 'third Party' or 'any Person' used in Section 147 of Act of 1988 includes in itself even a person travelling in a private car. When I so opine, I find support from the single Judge decision of High Court of Jammu and Kashmir in the case of National Insurance Co. v. Faqir Chandra, (1996) 1 Acc CJ 111, as well as the decision of this Court in the case of United Insurance Company v. P. B. Laxman, ILR 1996 Kant 2224 and the decision of this Court in the case of Shantabai v. Shekappa, (ILR 1995 Kant 1637 ). Thus considered in my opinion the appeal has got no merits and I do find that the Tribunal has not committed any error of law or jurisdiction in holding that Insurance Co. is liable to pay that amount as the liability of the Insurance Co. runs with the liability of the owner of the vehicle and so liability fastened under Section 140 will also be covered by the policy. The appeal as such is to be hereby dismissed. It has been brought to my notice that the main claim is pending for decision. It is expected that Tribunal will expeditiously decide the matter as the occurrence had taken place some time in 1992. The appeal as such is to be hereby dismissed. It has been brought to my notice that the main claim is pending for decision. It is expected that Tribunal will expeditiously decide the matter as the occurrence had taken place some time in 1992. The appeal is thus dismissed and finally disposed of and the Tribunal is directed to decide the petition within a period of six months from the date of receipt of this order. " 16. It is an admitted fact that after the Apex Court decided Shanthabai's case (ILR 1995 Kant 1637), the Tariff Advisory Committee, Bombay, had issued a circular to cover the risk of third parties, who are gratuitous travellers and it is also an admitted fact that the Tariff Advisory Committee in that circular issued on 2-6-1986 stated that the comprehensive policy should cover liability to pillion passengers treating them as occupants in the motor cycle. The learned counsel for the appellant had also produced before me a copy of the circular dated 2-6-1986 that came to be issued by the Tariff Advisory Committee, Bombay. As a matter of fact, in the first two appeals, the appellant-Insurance Company had also issued Ex. R1-Policy in respect of the Yezdi motor cycle bearing registration No. CNL 2338 and in one of the terms and conditions under the heading "liability to third parties". It is set down therein as hereunder : "subject to the Limit of Liability as laid down in the Motor Vehicles Act the Company will indemnify the Insured in the event of accident caused by or arising out of the use of Motor Vehicle anywhere in India against all sums including claimant's cost and expenses which the Insured shall become legally liable to pay in respect of death of or bodily injury to any person and/or damage to any property of Third Party. " 17. Similarly the third appeal before the Tribunal, the appellant-Insurance Company had also produced Ex. R1-Insurance Policy in respect of the vehicle in question before the Tribunal below and in page No. 1 of the said Insurance Policy, I find the similar term in the said policy. 18. In all the cases, therefore it is clear that the Insurance Companies in question had issued Act policies but to cover the risk of the third parties too. 18. In all the cases, therefore it is clear that the Insurance Companies in question had issued Act policies but to cover the risk of the third parties too. That being so, I have got no hesitation to hold that the appellants Insurance Companies could be saddled with the liabilities of compensating the respondents-owners in both the sets of appeals. 19. If the above term as at para (6) supra under the liability to third parties read along with the provision in Section 147 of the Act in my considered view, it is clear that the appellant-Insurance Company had covered the third party risk and that risk also included the risk caused by death or injury of pillion riders. Therefore, I have got no reservation to uphold the impugned judgment and awards passed by the Tribunal in two sets of appeals. As a matter of fact, in yet another decision reported in ILR 1997 Kant 1491 : (1997 AIHC 2159), the learned single Judge of this Court had also held similar view and in the said decision, the learned single Judge held as hereunder : "in the present case, insurance policy was effective from 6-1-87 for one year i. e. , 5-1-88, occurrence or incident causing injuries and death of Gudinho, did take place on 27-2-87 i. e. , all dates noted above were subsequent to 2-6-86 i. e. , date of circular therefore, in the present case in view of amendment being applicable, it must be held that the policy covers the risk of pillion rider in the present case. That amendment in the clause of the policy covers the third party risk including death or bodily injury causes to any person including the person conveyed in or on the Motor-cycle and it is provided that such person should not have been carried on for hire or reward, it may not cover that risk, but if a person is not carried on for hire or reward, then company has undertaken the liability to compensate or indemnify the insured for whatever sum it is required to pay as compensation to the claimant including the costs and the interest. " 20. " 20. Therefore, I am inclined to dismiss the two sets of appeals by confirming the impugned judgments and awards of the Tribunals below in following the view taken by the learned single Judges of this Court in two different appeals referred to in paras (15) and (19) supra. " 15. By making observations as aforesaid, Karnataka High Court has made clear picture establishing contractual liability of insurance company by relying upon Circular dated 2nd June, 1986 issued by Tariff Advisory Committee and issue decided by Karnataka High Court is squarely covering the matter at issue in case before hand and according to my opinion, that aspect has been rightly examined by claims tribunal in this case and has rightly relied upon circular issued by Tariff Advisory Committee in respect to motor car by relying upon decision of this Court reported in 2007 (1) GLR page 567 in case of Naynesh H. Nanavati v. Dashrath R. Bhagat. Therefore, though there are recent decisions of apex court that pillion rider and owner or driver of motor cycle are not third party, according to my opinion, those decisions are interpreting section 147 of Motor Vehicles Act alone and in those decisions, apex court has not considered Circular dated 2nd June, 1986 issued by Tariff Advisory Committee for motor cycle and another circular relating to motor car and, therefore, in view of these facts involved in case before hand wherein claims tribunal has considered said circular, therefore, those decisions of apex court are not applicable to facts of this case as contractual obligation accepted by insurance company as per Tariff Advisory Committee Circular dated 2nd June, 1986 and, therefore, now, insurance company cannot deny responsibility or liability to pay compensation to claimants by relying upon apex court decisions as referred to above, therefore, contentions raised by learned Advocate Ms. Megha Jani cannot be accepted and same are, therefore, rejected. Similar to the view taken by Karnataka High Court as referred to above, Gujarat High Court has also considered similar question about contractual obligation on the part of insurance company on the basis of Circular dated 2nd June, 1986 issued by Tariff Advisory Committee covering risk of pillion rider in case of Oriental Insurance Co. Ltd. Versus Aayeshaben Wd/o Suleman Patel in First Appeal No. 7157 of 1999 dated 4th September, 2000. Ltd. Versus Aayeshaben Wd/o Suleman Patel in First Appeal No. 7157 of 1999 dated 4th September, 2000. In said matter, note for speaking to minutes was filed and this Court passed order thereon on 20. 4. 2001. Relevant observations made by Division Bench of this Court in said decision after considering said Circular of Tariff Advisory Committee dated 2nd June, 1986 are reproduced as under: "pursuant to the Note for Speaking to Minutes filed by mr. K. K. Nair, learned advocate for the appellant, we have taken up this matter. There is consensus that, in para 9 from line 6 starting from "undoubtedly" till "or any two wheelers", and whole of para 10 in our judgment dated 4. 9. 2000 in First Appeal No. 7157 of 1999, unfortunately, apparent and glaring factual mistakes have crept in and, it is, rightly, jointly, submitted that in view of reference of two decisions rendered by us, in First appeal No. 1400 of 2000 and 1706 of 2000, both decided by our Bench, typographical mistakes have crept in due to misconception and instead of mentioning correct facts, apparent wrong facts, about the date etc. have been, mistakenly, stated. It is, therefore, submitted that the apparent and glaring factual mistakes may be corrected and rectified by allowing the speaking to minutes. We are, in complete, agreement with the consensual statement. Accordingly, para 9, as stated above, and para 10 of the judgment shall stand deleted and shall stand substituted by the following paragraphs: "9. The date of accident in the present case is 20. 4. 89, whereas, the Motor Vehicles Act, 1988 came into force from 1. 7. 89. It is relevant, to point out here that the Tariff Advisory Committee had issued the circular dated 2. 6. 1986 to cover the third party risk. In this context, we feel it appropriate to quote the said circular that came to be issued by the Tariff Advisory committee, a copy thereof had been supplied to the court by the learned counsel for the appellant, in the first appeal, the same reads as under: " (Private and Confidential: Issued for the use of insurers carrying on General Insurance Business in India ). Tariff Advisory Committee bombay ador House, 1st Floor, 6, K. Dubash Marg, bombay 400 023. MOT/gen/10 2nd June, 1986 to: all Regional Offices of: (1) National Insurance Co. Ltd. Calcutta. (2)New India Assurance Co. Tariff Advisory Committee bombay ador House, 1st Floor, 6, K. Dubash Marg, bombay 400 023. MOT/gen/10 2nd June, 1986 to: all Regional Offices of: (1) National Insurance Co. Ltd. Calcutta. (2)New India Assurance Co. Ltd. Bombay. (3) Oriental Insurance Co. Ltd. , Delhi. (4) United India Insurance Co. Ltd. Madras govt. Insc. Funds: (1) Maharashtra State, Bombay (2) Gujarat State, Ahmedabad. (3) Kerala State, Trivandrum. (4) Karnataka State, Bangalore. Re: Compensation to pillion riders. Insurer's attention is invited to section ii (1) (a) of standard form for motor cycle, comprehensive policy, sheet 59 of the IMT. It has now been decided that the standard motorcycle comprehensive policy should cover liability to pillion passengers treating them as occupants in the motor cycle and provide indemnity to such persons who are not carried for hire or reward. Accordingly, the extra benefit No. 2 granting legal liability to cover side car passengers will stand deleted and the standard cover under section 2 (1) (a) of the policy is worded as under: death or bodily injury to any person including person conveyed in or on the motor cycle provided such person is not carried for hire or reward. Insurers are requested to issue necessary instructions to their Divisional/branch offices accordingly. Sd/- (Y. D. Patel)Secretary. C. C. to: Head Office of New India/national/ oriental/united India, Delhi/bombay/calcutta/ madras Regional Committees, General Insurance corporation of India, Technical Department, bombay. Govt. Audit Depts. Bombay/calcutta/ delhi/madras. " 10. But the position has, completely, been changed when the New Motor Vehicles, 1988, came into force. In section 147 of the new Act which corresponds to section 95 of the old Act there is no limit in certain cases as contained in clause (ii) of the old Act. The corresponding proviso in the old Act contained three clauses whereas now there are only two clauses. What was dropped in the new Act is the clause which excluded the coverage for death or bodily injury to persons carried in or upon the vehicle. That means such liability cannot now be excluded from the policy. The result is, when a policy of insurance 'is an act policy', it does not necessarily mean that the insurance company will stand absolved from the liability in respect of the pillion rider of a motor cycle. " office is directed to make necessary corrections as indicated hereinabove in the original judgment. The result is, when a policy of insurance 'is an act policy', it does not necessarily mean that the insurance company will stand absolved from the liability in respect of the pillion rider of a motor cycle. " office is directed to make necessary corrections as indicated hereinabove in the original judgment. This note for Speaking to Mintues shall stand disposed of accordingly. " 17. Similarly, Division Bench of this Court in case of United India Insurance Company Ltd. Versus Shashikant R. Dhah Decd. Through Heirs Shardaben S. Shah and 6. , in First Appeal NO. 3532 of 1996, examined same question on 5. 2. 2003. Relevant observations made by Division Bench of this Court in said decision are reproduced as under: "in the appeal the impugned award has been challenged on the ground that the deceased was a pillion rider and the pillion rider would not be a third party and, not covered under the contract of insurance and, therefore, the appellant - Insurance Company would not be liable to pay the compensation on account of death of the pillion rider on a scooter. 3. Tariff Advisory Committee of the General insurance issued a circular dated 2. 6. 1986. Same reads as follows :-Tariff Advisory Committee bombay ador House, 1st Floor, 5, K. Dubash Marg, bombay-400 023. 2nd June, 1986. MOT/gen. 10 to: all Regional Office of: (1)National Insurance Co. Ltd. Calcutta (2)New India Assurance Co. Ltd. Bombay (3)Oriental Insurance Co. Ltd. United India Insurance Co. Ltd. Madras. Govt. Insc. Funds: (1)Maharashtra State, Bombay (2)Gujarat State, Ahmedabad (3)Kerala State, Trivandrum (4)Karnataka State, Bangalore re: compensation to pillion riders insurer's attention is invited to section II (1) (a) of standard form for motor cycle, comprehensive policy, sheet 59 of the IMT. It has now been decided that the standard motor cycle comprehensive policy should cover liability to pillion passengers treating them as occupants in the motor cycle and provide indemnity to such persons who are not carried for hire or reward. Accordingly, the extra benefit No. 2 granting legal liability to cover side car passengers will stand deleted and the standard cover under section 2 (1) (a) of the policy is worded as under : death or bodily injury to any person including any person conveyed in or on the motor cycle provided such person is not carried for hire or reward. Insurers are requested to issue necessary instructions to their Divisional / Branch offices accordingly. Sd/- (Y. D. Patil)Secretary. C. C. to : Head Office of New India / National / oriental / United India. Delhi/ Bombay/ Calcutta / madras Regional Committees. General Insurance corporation of India, Technical Department, Bombay. Govt. Audit Depts. Bombay /calcutta / Delhi / Madras. " it will be seen that the circular issued by the tariff Advisory Committee of the General Insurance is binding to the appellant - Insurance Company. As per the circular the pillion rider would be a third party and, therefore, covered under the contract of insurance as "any person and the risk of the pillion rider also stands covered under the insurance policy as per the above reproduced circular. It cannot be said that the deceased who was a pillion rider on the scooter involved in the accident would not be covered under the contract of insurance, and the dependents of the deceased pillion rider would be entitled to claim compensation. 4. In the memo of appeal it has been contended that the quantum of compensation awarded is liable to be set aside considering the prospective income in view of the exh. 53 to 59 viz. Income-Tax Assessment Returns. 5. It is not disputed that no application under section 170 of the Act was preferred by the Insurance company before the claims Tribunal. In view of the judgement in the case of Shankarayya and Anr Vs. United india Insurance Co. Ltd. and Anr. , AIR 1998 SC 2968 , this ground is not available to the appellant - Insurance company in absence of any application filed under Section 170 of the Act before the claims Tribunal. 6. In view of the above, we do not find any substance in the appeal and the impugned award does not call for any interference for the reasons aforestated. " 18. Therefore, considering aforesaid two decisions of Division Bench of this Court, according to my opinion, submissions made by learned Advocate Ms. Megha Jani cannot be accepted and therefore, same are rejected. 19. The present case is squarely covered by direction issued by Tariff Advisory Committee. The direction issued by Tariff Advisory Committee applied to private vehicle including private car and two wheelers. The direction of Tariff Advisory Committee of 1978 gives mandate to Insurance Co. Megha Jani cannot be accepted and therefore, same are rejected. 19. The present case is squarely covered by direction issued by Tariff Advisory Committee. The direction issued by Tariff Advisory Committee applied to private vehicle including private car and two wheelers. The direction of Tariff Advisory Committee of 1978 gives mandate to Insurance Co. to amend terms and conditions of policy, if it is not amended accordingly, then same is having statutory force binding to Insurance Co. and terms and conditions is not amended accordingly, then to take advantage denying liability of compensation in case of pillion rider, cannot be accepted by this Court, because this aspect was not before Apex Court. But this very aspect has been examined by the Division Bench of this Court in case of Harshvardhatiya Rudraditya (supra) and in case of Naynesh H. Nanavati (supra ). 20. Following observations of Apex Court are very relevant and useful in respect to the subject examined by this Court. Therefore, lastly it is quoted as under. The observations made by Apex Court in National Insurance Co. Ltd. v. Abhaysing Pratapsing Waghela and ors. Reported in 2008 AIR SCW 6178 arising from judgment of the Gujarat High Court reported in AIR 2007 (NOC) 750 (Guj. ). "a contract of insurance is to be governed by the terms thereof, but a distinction must be borne in mind between a contract of insurance which has been entered into for the purpose of giving effect to the object and purport of the statute and one which provides for reimbursement of the liability of the owner of the vehicle strictly in terms thereof. In that limited sense, a contract of insurance entered into for the purpose of covering a third party risk would not be purely contractual. And ordinary contract of insurance does not have a statutory flavour. The Motor Vehicles Act merely imposes an obligation on the part of the Insurance Co. to reimburse the claimant both in terms of the Act as also the contract. So far as the liability of the insurance co. which comes within the purview of Sections 146 and 147 is concerned, the same sub-serves a constitutional goal, namely, social justice. A contract of insurance covering the third party sick must, therefore, be viewed differently vis-a-vis a contract of insurance qua contract. So far as the liability of the insurance co. which comes within the purview of Sections 146 and 147 is concerned, the same sub-serves a constitutional goal, namely, social justice. A contract of insurance covering the third party sick must, therefore, be viewed differently vis-a-vis a contract of insurance qua contract. 2007 AIR SCW 2279, 2007 AIR SCW 2362, AIR SCW 4549, 1998 AIR SCW 183 AND 2007 AIR SCW 7948, (Rel. onl ). " 21. Therefore, according to my opinion, decision which has been relied upon by learned advocate Ms. Megha Jani is not applicable to the facts of this case because in this case, this Court has considered terms and conditions of insurance policy after having implementation of direction of Tariff Advisory Committee which include as an occupant in private vehicle pillion rider and that is how the Insurance Co. is liable to pay compensation to claimants. Therefore, the reliance placed by learned advocate Ms. Jani in case of Sudhakaran K. V. (supra) and Tilak Singh (supra) is not applicable to exact facts of this case, because claims Tribunal has relied upon decision of this Court reported in 2007 (1) GLR 567 , therefore, this Court has to consider aforesaid decision which is based on direction issued by Tariff Advisory Committee. Therefore, this Court cannot simply consider policy as it is without amendment as per direction issued by Tariff Advisory committee. The policy which was considered by Apex Court in case of Sudhakaran K. V. (supra) and Tilak Singh (supra) without amendment as per direction issued by Tariff Advisory committee which is binding to Insurance Co. , having statutory force, deeming fiction and also having retrospective effect. These are observations made by Division Bench of this Court in case of Harshvardhatiya Rudraditya (supra ). Therefore, I am considering this First Appeal where award passed by claims Tribunal is under consideration and the claims Tribunal has relied upon the decision of this Court reported in 2007 (1) GLR 567 where direction of Tariff Advisory Committee was taken into account. Therefore, this Court has also considered same direction issued by Tariff Advisory Committee to each Insurance Co. and on that ground, this Court is examining whether view taken by claims Tribunal is right or wrong or any error committed by claims Tribunal or not. Therefore, this Court has also considered same direction issued by Tariff Advisory Committee to each Insurance Co. and on that ground, this Court is examining whether view taken by claims Tribunal is right or wrong or any error committed by claims Tribunal or not. And on that ground, this Court is considering award passed by claims Tribunal and according to my opinion, claims Tribunal has not committed any error in deciding issue relying upon decision of 2007 (1) GLR 567 . Therefore, the submissions made by learned advocate Ms. Jani cannot be accepted and same are rejected. Therefore, there is no substance in the present appeal. Accordingly, present appeal is dismissed. " ( 10 ) RECENTLY, this aspect has been considered by the Apex Court in case of the General Manager, United Insurance Co. Ltd. v. M. Laxmi and others reported in 2008 (14) Scale 474 , after referring the Apex Court's decision in case of National Insurance Co. Ltd. v. Asha Rani and others reported in 2003 (2) SCC 223 and in case of United India Assurance Co. Ltd. , Shimla v. Tilak Singh and others reported in 2006 (4) SCC 404 . Relevant observations of the aforesaid decision are in Para. 6, which is quoted as under : "6. There is no dispute that the circular dated 2. 6. 1986 refers to comprehensive policy. It categorically states that standard form for motorcycle should cover liability to pillion passengers in case of Comprehensive Policy. As noted by the MACT, the policy in the instant case was an Act policy. " ( 11 ) IN this case, it is not in dispute that policy issued by the Insurance Co. is comprehensive policy. Therefore, the contention raised by learned advocate Ms. Megha Jani that risk of pillion rider is not covered in insurance policy, is not accepted and same is rejected. ( 12 ) I have considered the submissions made by learned advocate Ms. Megha Jani in respect to finding given by claims Tribunal on the issue of negligence. The accident occurred on 30. 9. 2006. The claimant was going as pillion rider on motor cycle owned by his paternal uncle bearing No. GJ-13-L-5227 and both were going from village Haripura towards Viramgam, and when they reached 3 km. Megha Jani in respect to finding given by claims Tribunal on the issue of negligence. The accident occurred on 30. 9. 2006. The claimant was going as pillion rider on motor cycle owned by his paternal uncle bearing No. GJ-13-L-5227 and both were going from village Haripura towards Viramgam, and when they reached 3 km. away from village Navrangpura, at that time near by culvert, one auto rickshaw bearing No. GJ-1-V-7367 came from opposite direction in full speed, rashly and negligently and collided with motor cycle and the claimant sustained grievous injuries and therefore, the application was filed. The written statement was filed by Insurance Co. denying the averments made in the claim petition at Exh. 36. It is necessary to note that Insurance Co. has raised contention against negligence of motor cycle and prayer is made to dismiss claim petition. Now argument is that there was no negligence of pillion rider and there was a negligence of auto-rickshaw driver. A specific averments in written statement in Exh. 24 that accident is caused due to sole negligency on part of driver of motor cycle and ultimately, prayed to dismiss the claim petition. The owner of the motor cycle has not remained present and Dashrathbhai Pratapbhai Thakore was driver of auto-rickshaw and Mohanbhai Mafabhai Sindhav is driver of motor cycle. The present appellant - opponent No. 5 has also filed reply at Exh. 24 raising same contention before claims Tribunal. The issues have been framed by claims Tribunal and thereafter, claims Tribunal has examined matter on the basis of evidence on record. The claimant has submitted the affidavit of evidence Exh. 21 where he submitted factum of accident and in cross-examination, he has admitted that width of the road was 40 ft. i. e. feet thereon, while in the cross-examination from opponent No. 5 he has stated that motor cycle was being driven at the left side of road with minimum speed and accident caused due to sole negligency on part of rickshaw driver and police case was lodged against rickshaw driver and police case was lodged against the rickshaw driver. An FIR is produced at Exh. 29 which is lodged by claimant against driver of said rickshaw. The accident caused at the curve of road. The Panchnama of spot of incident is produced at Exh. An FIR is produced at Exh. 29 which is lodged by claimant against driver of said rickshaw. The accident caused at the curve of road. The Panchnama of spot of incident is produced at Exh. 30, both said vehicles are found lying there, excel of front wheel of said motor cycle is found broken, its ring also found bent, jumper and steering also found bent, front part of motor cycle is found to have been lost i. e. total loss thereof and thus total loss is assessed to the tune of Rs. 30,000/-, at front right side of rickshaw hollow was found impressed, right side of wheel plate was found bent, and front stair of right side door also found broken. Said rickshaw was turned turtled, hence right side iron seat also found broken, total loss which is assessed towards said rickshaw is to tune of Rs. 10,000/ -. The width of road was 40' i. e. feet thereof, both said vehicles could have been passed very easily from there altogetherly to then, and both the said vehicles were at different directions and according to claimants, his motor cycle was driven at left side and even with slow speed and there was no chance of accident unless auto rickshaw coming from opposite direction. On the spot of incident there was curve, therefore, there is reason to believe that both drivers of the respective vehicles were not at all watchful in driving their vehicles over the said road, then it is sufficient enough to consider that they had not slowed down their vehicles and they were passing with full speed even at the curve portion of said road which caused accident and in comparison to rickshaw, speed of the motor cycle is excessive. Therefore, claims Tribunal has come to conclusion that both the drivers were equally rash and negligent in causing the accident. ( 13 ) RECENTLY, the Apex Court has considered this aspect in case of Andhra Pradesh State Road Transport Corporation and Another v. K. Hemlatha and others reported in (2008) 6 SCC 767 . Relevant observations made in Para. 11 which is quoted as under : "11. ( 13 ) RECENTLY, the Apex Court has considered this aspect in case of Andhra Pradesh State Road Transport Corporation and Another v. K. Hemlatha and others reported in (2008) 6 SCC 767 . Relevant observations made in Para. 11 which is quoted as under : "11. To determine the question as to who contributed to the happening of the accident, it becomes relevant to ascertain who was driving his vehicle negligently and rashly and in case both were so doing who were more responsible for the accident and who of the two had the last opportunity to avoid the accident. In case the damages are to be apportioned, it must also be found that the plaintiff-s fault was one of the causes of the damage and once that condition is fulfilled the damages have to be apportioned according to the apportioned share of the responsibility. If the negligence on the plaintiff-s part has also contributed to damage this cannot be ignored in assessing the damages. He can be found guilty of contributory negligence if he ought to have foreseen that if he did not act as a reasonable, reasoned man, he might be hit himself and he must take into account the possibility of others being careless. " ( 14 ) I have considered submissions made by learned advocate Ms. Megha Jani and also considered finding / reasoning given by claims Tribunal. The contention is that driver of auto rickshaw was not examined before claims Tribunal to rebut evidence of the claimant. Simultaneously, driver of motor cycle was also not examined to explain the accident whether he was driving motor cycle with slow speed or excessive speed and how accident occurred. The pillion rider means claimant may not aware about speed of motor cycle but, real speed is known to driver that as to at which speed vehicle is going on. The pillion rider is an interest witness, naturally he may not blame the driver of motor cycle. Therefore, claims Tribunal has rightly considered damage caused to motor cycle which proved excessive speed of motor cycle. Because of such heavy collision between two vehicles in which motor cycle was smashed down which suggests excessive speed of motor cycle on curve. The pillion rider is an interest witness, naturally he may not blame the driver of motor cycle. Therefore, claims Tribunal has rightly considered damage caused to motor cycle which proved excessive speed of motor cycle. Because of such heavy collision between two vehicles in which motor cycle was smashed down which suggests excessive speed of motor cycle on curve. It is also necessary to note that because of heavy impact of motor cycle, auto rickshaw has been turned turtled and that is only reason to consider excessive speed of motor cycle. Therefore, claims Tribunal has rightly come to conclusion that both the drivers are equally rash and negligent in driving vehicle on curve of the road. Looking to story of claimant and 40 ft. width of road and fact that motor cycle was driven on the left side with slow speed, the question of accident does not arise and it was not case of claimant that auto rickshaw was coming from different side in a wrong side and then, dashed with motor cycle. ( 15 ) THEREFORE, in view of the aforesaid reasoning given by claims Tribunal based on Panchanama and complaint and also considering evidence of claimant, according to my opinion, claims Tribunal has rightly examined issue and rightly come to conclusion that both drivers are equally responsible for rash and negligent driving at the time of accident. Therefore, 50-50% negligence has been rightly examined. For that, claims Tribunal has not committed any error which requires interference by this Court. The contention raised by learned advocate Ms. Megha Jani cannot be accepted and same are rejected. Therefore, there is no substance in present appeal. Accordingly, present appeal is dismissed. The amount of Rs. 25,000/- deposited with this Court for the purpose of appeal shall be transmitted to the Tribunal concerned. ( 16 ) AS the First Appeal No. 5561 of 2008 is dismissed, no order is necessitated in Civil Application No. 14059 of 2008. Accordingly, Civil Application No. 14059 of 2008 is disposed of.