JUDGMENT V.M. Deshpande, J. (Oral) - The present appeal is directed against judgment and award dated 1.8.2006 passed by learned Member, Motor Accident Claims Tribunal, Nagpur in Claim Petition No.27/2000. 2. By the impugned judgment and award, the claim petition filed under section 166 of the Motor Vehicles Act, 1988 by present respondent Nos.1 to 7 was partly allowed thereby directing the appellant/insurance company and respondent No.8 to pay jointly and severally amount of Rs. 2,05,000/- inclusive of ''No-Fault Liability'' together with future interest at the rate of 8% per annum from the date of the petition, till realization of the whole amount. 3. The claim petition was required to be filed since Manikrao Suryawanshi lost his life in a vehicular accident that occurred on 28.4.1998. The claimants were dependents on him. 4. The deceased was a pillion rider on a scooter having registration No.MH-31/P/4616 owned by respondent No.8. According to the claim petition, respondent No.8 was driving the scooter in a high speed, resultantly he lost his control and gave a dash to a tree resulting into suffering of severe injuries to Manikrao, who succumbed to the same. An offence was registered at Deolapar Police Station. The deceased was 25 years of age and was earning Rs. 1500/- per month, being a labour. 5. The owner of the vehicle filed his written statement (Exhibit 32) and opposed the claim. It was his defence that the scooter was sold to one Ritesh and, therefore, he was not liable to pay compensation. It was also stated in his written statement that the claim petition is bad for non-joinder of Ritesh. The appellant-insurance company also filed its written statement (Exhibit 35) denying everything. The issues were framed. Claimant No.1 Ratna wd/o Manikrao Suryawanshi entered into witness box. Smt. Asha Govind Sonkamble from Regional Transport Office was also examined as PW2. Neither the appellant-insurance company nor respondent No.8 adduced any evidence. Learned Member passed the impugned award after appreciating pleadings, documents, and evidence on record. Hence, the present appeal. 6. I have heard learned counsel Shri C.A. Anthony for the appellant-insurance company and learned counsel Ms Monali Pathade for respondent Nos.1 to 7/original claimants. Though served, nobody appeared for respondent No.8. With able assistance of learned counsel for both the parties, I have perused the original record also. 7. Hence, the present appeal. 6. I have heard learned counsel Shri C.A. Anthony for the appellant-insurance company and learned counsel Ms Monali Pathade for respondent Nos.1 to 7/original claimants. Though served, nobody appeared for respondent No.8. With able assistance of learned counsel for both the parties, I have perused the original record also. 7. Having heard learned counsel for the parties and having perused the record, following points arise for my consideration:- (1) Whether learned Member of the Motor Accident Claims Tribunal was right in granting the claim petition in favour of respondent Nos.1 to 7? (2) What order? 8. Learned counsel Shri C.A. Anthony for the appellant-insurance company submitted that the Trial Court was wrong in fastening the liability to pay the amount of compensation to respondent Nos.1 to 7 since deceased Manikrao was a pillion rider and, therefore, he was not a "Third-Party." It is also his submission that policy in question was an "Act Policy". Therefore, learned Member committed a wrong in granting the compensation. 9. Per contra, learned counsel Ms Monali Pathade for respondent Nos.1 to 7 submitted that learned Member was right in granting the compensation in favour of the claimants holding that he was a "Third-Party". She submitted that learned Member was right in view of the law laid down by the Division Bench of this Court in the case of Ajay Ramesh Bhoir vs. Avinash Shantaram Jadiyal Shiravane and another, reported at 2004 (3) Civil LJ 228 . She submitted that the appeal be dismissed. 10. The first question will have to be decided as to whether the deceased was a "Third-Party" as envisaged under the Motor Vehicles Act, 1988. 11. It is to be noted that Ms Monali Pathade has relied on the decision of the Division Bench of this Court in the case of Ajay Ramesh Bhoir cited supra. The said case is a decision based on the law laid down in the case of New India Assurance Co. Ltd. vs. Satpal Singh and others, reported at 2000 ACJ page No.1 . However, subsequently, the Honourable Apex Court in the case of New India Assurance Company Limited vs. Asha Rani and ors, reported at 2003 (2) SCC 223 specifically found that the law was not correctly enunciated in New India Assurance Co. Ltd. vs. Satpal Singh and others cited supra meaning thereby that a gratuitous passenger cannot be "Third-party". 12. However, subsequently, the Honourable Apex Court in the case of New India Assurance Company Limited vs. Asha Rani and ors, reported at 2003 (2) SCC 223 specifically found that the law was not correctly enunciated in New India Assurance Co. Ltd. vs. Satpal Singh and others cited supra meaning thereby that a gratuitous passenger cannot be "Third-party". 12. In the present case, admittedly, the deceased was a pillion rider. Therefore, there is no doubt in my mind that the deceased was not a "Third-Party". Therefore to that extent the findings recorded by the Trial Court cannot sustain in the eye of law. 13. According to learned counsel Ms Monali Pathade for respondent Nos.1 to 7, the offending vehicle viz. Scooter was duly insured with the appellant-insurance company. 14. The claimants filed registration particulars (Exhibit 44). The said shows that the offending vehicle was duly insured with the appellant-insurance company. The claimants have also examined Smt. Asha Govind Sonkamble, employee of the Regional Transport Office. Her evidence also shows that the offending vehicle was duly insured with the appellant-insurance company. 15. According to learned counsel Shri C.A. Anthony for the appellant-insurance company, the said insurance policy was an "Act Policy" and not a "Comprehensive Policy". Perusal of the written statement (Exhibit 35) shows that the said plea was not taken in the written statement. Thus, for making this submission there was no foundation. In spite of the fact that the offending vehicle was duly insured with appellant-insurance company, in the written statement a plea is taken by the appellant that the offending vehicle was not duly insured with the appellant and except that no defence in that behalf was taken. The Court would have accepted the submission about the right of pillion rider, had the position of "Act Policy" and "Comprehensive Policy" is identical in respect of entitlement of pillion rider to receive the compensation. However, it is otherwise. 16. It was always open for the appellant-insurance company to adduce evidence about nature of the policy. Without there being anything on record, for the first time at appeal stage, it is not open for the insurance company to agitate that the policy was not a "Comprehensive Policy" but it was an "Act Policy". Nobody prevented the appellant-insurance company from proving the fact that the policy was not a "Comprehensive Policy" but it was an "Act Policy". Without there being anything on record, for the first time at appeal stage, it is not open for the insurance company to agitate that the policy was not a "Comprehensive Policy" but it was an "Act Policy". Nobody prevented the appellant-insurance company from proving the fact that the policy was not a "Comprehensive Policy" but it was an "Act Policy". Since the appellant-insurance company has not adduced anything in that behalf and there is a material which is also not questioned before this Court, there exists a policy about the offending vehicle and on the day of the accident the offending vehicle was duly insured with the appellant-insurance company. The only inference that can be drawn is that it was a "Comprehensive Policy" and, therefore, the appellant-insurance company was shy of in placing the same on record. Consequently, there is no merit in the appeal. The first appeal is dismissed. 17. Since the first appeal is dismissed, the claimants will be entitled to withdraw the remaining amount deposited by the appellant-insurance company before this Court.