H.K. Rathod, J.
1. Heard learned advocate Mr. Vibhuti Nanavati on behalf of United Insurance Company-appellant and learned advocate Mr. Paresh Darji for the respondents-claimants.
2. The appellant-Insurance Company challenged award passed by Motor Accident Claims Tribunal, Ahmedabad (R) at Ahmedabad Exh.-118 in MACP No. 1795 of 1990, 1796 of 1990, 1797 of 1990, 1798 of 1990, 1799 of 1990, 1808 of 1990 and 1809 of 1990 dated 31/7/2008. The Claims Tribunal has awarded compensation in each case with 8.5 percent interest in favour of respondent-claimants.
3. Learned advocate Mr. Vibhuti Nanavati raised contention that accident occurred on 11/9/1990 prior to amendment in Section 147 of Motor Vehicles Act dated 14/11/1994. Therefore, according to his submission, considering an amended Section 147, in goods vehicle any person is not permitted to travel either with goods or without goods and for the same Insurance Company is not liable. He submitted that Claims Tribunal has committed error in considering insurance policy which is produced at page-9 of petition particularly para-17 where Claims Tribunal has considered that insurance policy produced by claimants is not comprehensive policy of matador and in Column-B, Rs. 240/- liability to public risk, company has accepted additional legal liability to authorised non fare paying passenger as per endorsement 14(B). The company has also accepted additional premium of of Rs. 150/- (Additional for increased T.P. limits Section-II 1 (A) Unlimited, Section-II(B) 3 lacs. So, in view of above position of premium, insurance company is liable to pay compensation to claimants. He show policy of vehicle in question to this Court and according to him, Rs. 240/- paid by insured covering liability to public risk. Therefore, according to him, the Claims Tribunal has committed gross error in reading or explaining terms of insurance policy, therefore, interference of this Court is required.
4. He raised contention before this Court that for unamended Section 147, view taken by Hon'ble Apex Court in case of Smt. Mallawwa etc. v. The Oriental Insurance Co. Ltd. and Ors. reported in : AIR1999SC589 , where Hon'ble Apex Court has considered unamended Section and goods vehicle and liability of insurance company in case of death or fatal injury to person travelling in goods vehicle held that company is not liable unless it is established that goods vehicle was used as passenger vehicle. He relied upon the decision of Hon'ble Apex Court in case of National Insurance Co. Ltd. v. Ajit Kumar and Ors. reported in : AIR2003SC3093 , where also same view is taken that carrying of passengers in goods vehicle is not contemplated in unamended Section. He also relied upon decision of Apex Court in case of Oriental Insurance Company Ltd. v. Devireddy Konda Reddy and Ors. etc. etc., reported in 2003 (1) Scale 1441 where also view taken by Hon'ble Apex Court that in respect to gratuitous passengers travelling in goods vehicle, insurance company is not liable to consider unamended Section 147. He also relied upon decision of Hon'ble Apex Court in case of New India Assurance Co. Ltd. v. C.M. Jaya and Ors. reported in 2002 (1) Supreme 170 where also same question has been examined that whether in case of insurance policy not taking any higher liability by accepting a higher premium in case of payment of compensation to a third party insurer would be liable to extent limited under Section 95(2) of the Motor Vehicles Act or insurer would be liable to pay entire amount and he may ultimately recover from insured? In para-7 also the risk of gratuitous passenger is not covered in terms of policy. Para-7 of the said decision reads as under:
7. On a careful reading and analysis of the decision in Amrit Lal Sood (supra), it is clear that the view taken by the court is no different. In this decision also, the case of Jugal Kishore is referred to. It is held (i) that the liability of the insurer depends on the terms of the contract between the insured and the insurer contained in the policy; (ii) there is no prohibition for an insured from entering into a contract of insurance covering a risk wider than the minimum requirement of the statute whereby risk to the gratuitous passenger could also be covered; and (iii) in such cases where the policy is not merely statutory policy, the terms of the policy have to be considered to determine the liability of the insurer. Hence, the Court after noticing the relevant clauses in the policy, on facts found that under Section II-1(a) of the policy, the insurer has agreed to indemnify the insured against all sums which the insured shall become legally liable to pay in respect of death of or bodily injury to 'any person'. The expression 'any person' would undoubtedly include an occupant of the car who is gratuitously traveling in it. Further, referring to the case of Pushpabai Purshottam Udeshi (supra), it was observed that the said decision was based upon the relevant clause in the insurance policy in that case which restricted the legal liability of the insurer to the statutory requirement under Section 95 of the Act. As such, that decision had no bearing on Amrit Lad Sood's case as the terms of the policy were wide enough to cover a gratuitous occupant of the vehicle. Thus, it is clear that the specific clause in the policy being wider, covering higher risk, made all the difference in Amrit Lal Sood's case as to unlimited or higher liability. The Court decided that case in the light of the specific clause contained in the policy. The said decision cannot be read as laying down that even though the liability of the insurance company is limited to the statutory requirement, an unlimited or higher liability can be imposed on it. The liability could be statutory or contractual. A statutory liability cannot be more than what is required under the statute itself. However, there is nothing in Section 95 of the Act prohibiting the parties from contracting to create unlimited or higher liability to cover wider risk. In such an event, the insurer is bound by the terms of the contract as specified in the policy in regard to unlimited or higher liability as the case may be. In the absence of such a term or clause in the policy, pursuant to the contract of insurance, a limited statutory liability cannot be expanded to make it unlimited or higher. I it is so done, it amounts to re-writing the statute or the contract of insurance which is not permissible.
5. Considering provisions of old act that in absence of such terms of clause in policy pursuant to contract of a company a limited statutory liability cannot be expanded to make it unlimited or hire and if it is so done statute or contract of insurance it is not permissible. He also relied upon decision of Hon'ble Apex Court in case of National Insurance Company Ltd. v. Swaran Singh and Ors. reported in : AIR2004SC1531 where it is held that Insurance companies are, however, with a view to avoid their liability must not only establish available defence(s) raised in said proceedings but must also establish 'breach' on part of owner of vehicle; the burden of proof wherefor would be on them. He also relied upon the decision of Apex Court in case of Shiv Kumar Sharma v. Santosh Kumari reported in : AIR2008SC171 , particularly para-21 wherein it is observed that In England, Court of Equity exercises jurisdiction in equity. The courts of India do not posses any such equity jurisdiction. The Court in India exercise jurisdiction both in equity as well as law but exercise of equity jurisdiction is always subject to provisions of law. If exercise of equity jurisdiction would violate express provisions contained in law, same cannot be done. Equity jurisdiction can be exercised only when no law operates in field. He also raised contention that in this case owner was driving the vehicle and he died in accident. Therefore, insurance company is not liable to pay compensation to claimants.
6. Learned advocate Mr. Vibhuti Nanavati raised contention that insurance company is not liable to pay compensation because owner was driver of matador who died in accident but a specific contention was not raised by insurance company that because of owner/driver, accident occurred and he died in accident, therefore, insurance company is not liable to pay compensation to heirs and legal representatives of driver who died in accident. Their claim petition is to be dismissed by the Tribunal. No such contention was raised before the Claims Tribunal, therefore, Tribunal has not examined same.
7. I have considered the contentions raised by learned advocate Mr. Vibhuti Nanavati and also considered submissions made by learned advocate Mr. Paresh Darji appearing on behalf of respondent. I have also perused award passed by Claims Tribunal. Facts of this case are that accident occurred on 11/9/1990 with passengers who were travelling in matador bearing No. GTS-921 along with their goods. At that time one truck No. GTF 3072 was lying in stationary condition on road. Therefore, matador dashed with truck and accident took place and therefore petitions have been filed for getting compensation by claimants. Written statement filed by Insurance Company before Claims Tribunal. Opponent No. 1 and 2 are driver and owner of truck but they have not joined Insurance Company of truck in question. The Claims Tribunal has dismissed claim petition against respondent Nos. 1 and 2, driver and owner of truck vide order dated 1/5/1990. The driver/owner of matador bearing No. GTS 9216 died in accident and heirs of deceased owner are joined as opponent No. 4 in petition. Opponent No. 3-insurance company of matador has filed written statement and he denied that accident occurred due to negligent driving of driver of matador. According to insurance company-present appellant, driver of truck is contributed negligence and driver of matador is not responsible for accident. Thereafter, issues have been framed by Claims Tribunal after considering written statement filed vide Exh.-11. The Claims Tribunal has considered various decisions relied by both sides and also submissions made by learned advocate Mr. R.R.Panchal appearing on behalf of insurance company in written arguments, Exh.-96. Para-18 of the order of the Claims Tribunal which covers contention which has been raised by insurance company before Claims Tribunal. The said para is quoted as under:
18. Shri R.R.Panchal, learned advocate for the company has submitted his written arguments ex.96 denying the claim and contents of the petitions. It is stated that in the present matters, there are two vehicles involved in the accident. The truck was parked o n the road, without keeping back side lights and reflectors on. The panchnama shows that there was no back side light, and no signs were put for parking the truck. The panchnama shows that the road is 30 ft. in width. It is therefore clear that the truck was parked leaving 10 ft. from left side and in the middle of the road. It is therefore stated that the truck driver is solely liable for the accident and prayed to dismiss the claim petitions against opponent No. 3. It is further argued that as per the claim petitions, they have started for 'Yatra'. However, in the affidavits of the applicants, they are stating that they were sitting along with their goods. Thus, there is a contradiction between the facts of claim petition and facts of affidavit in chief. The applicants have not proved their journey with goods by documentary evidence. The applicants have not stated the name of goods also. It is further stated that as all the persons traveling in the matador being gratuitous passengers, and therefore the company is not liable to pay compensation to the applicants. In support of his arguments, the learned advocate for the Company has placed reliance on the following decisions:
2005 ACJ 1801 - M.V. Jayadevappa and Anr. v. Oriental Fire & Genl. Ins. Co. Ltd. and Ors.
: AIR1999SC589 - Mallawwa and Ors. v. Oriental Insurance Co. Ltd. and Ors.
: (2001)1GLR292 - New India Assurance Co. Ltd. v. Bhagwanbhai Danabhai and Anr.
: AIR2001SC3363 - Ramesh Kumar v. National Insurance Co. Ltd. and Ors.
2003 Supreme Court 1009 - Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and Ors.
: (2005)12SCC243 - National Insurance Co. Ltd. v. Bommithi Subbayamma and Ors.
All the above mentioned citations are regarding the liability of insurance company in respect of gratuitous passengers but all the cited cases are not helpful to the company in view of the ratio laid down by the Hon'ble Apex Court in the case of National Insurance Co. Ltd. v. Chholleti Bharatamma and Ors. reported in : AIR2008SC484 . It is laid down by Superior Court and also it being subsequent and the latest in point of time.
Meaning thereby after referring aforesaid para, except that insurance company has not raised any other contention before Claims Tribunal.
8. Thereafter Claims Tribunal has examined evidence of claimants on record, Ganeshbhai Devjibhai Chhara at Exh.-72, Rasilaben Dilipbhai Chhara at Exh.-50, and Pintubhai @ Dharmeshbhai Ranjeetbhai Chhara at Exh.48, 49 and thereafter considering the submissions made by learned advocate on behalf of claimants and deposition of Kamleshbhai Naranbhai Prajapati at Exh.71 recorded in MACP No. 208 of 1991 on 2/4/1997 and came to conclusion that accident occurred due to sole negligence of matador driver. The Claims Tribunal has come to conclusion that truck driver is not contributorily negligent and accident was within sole control of matador driver and he solely liable for accident on basis of evidence on record. Thereafter quantum has been decided in para-28 onwards by the Claims Tribunal. The Claims Tribunal has come to conclusion that all persons who died were travelling as owner of goods taken in matador. From Sarkhej, about eight persons with their goods in matador are there and Rs. 250/- fare was fixed for all them to reach Bhavnagar and that is how Claims Tribunal has come to conclusion that persons those who have been travelling at time of accident they were not gratuitous passengers but they were travelling along with their goods. Say of claimants being on oath , there is no reason to disbelieve same and as against same, insurance company has raised contention about gratuitous passengers, but failed to produce any contrary evidence and not examined any witnesses to disprove case of applicants. The observation made in para 26 and 27 of judgment and order are quoted as under:
26. Moreover, at this stage, it would be just and proper to refer the deposition of Kamleshbhai Narayanbhai Prajapati produced at ex.71. He has stated that he was a labourer of the matador. He has stated from Sarkhej, they had taken abut 8 persons with their goods in the truck, and their fare was fixed at Rs. 250/- for all to reach at Bhavnagar. Thus, it is clear that the deceased and the injured were cannot be termed as gratuitous passengers.
27. Considering the evidence as a whole and the arguments of both the sides, it is clear that the deceased and the injured were not gratuitous passengers, but they were traveling along with their goods. The say of the applicants being on oath there is no reason to disbelieve the same. As against this the opponent Company has raised the contention of gratuitous passengers, but failed to produce any contrary evidence, and not examined any witness to disprove the case of the applicants. Thus, the arguments advanced by the learned advocate for the Company that the deceased and the injured were gratuitous passengers, cannot be accepted. As the deceased and injured were traveling with their goods, the Company is liable to pay compensation to the applicants. Hence, issue No. 1 for all the petitions, is decided accordingly.
9. In light of aforesaid discussion and finding given by Claims Tribunal, the question is that accident occurred on 11/9/1990 undisputedly before amendment made in Section 147. The simple contention raised by insurance company that person those who were travelling in matador they were gratuitous passengers and the insurance company is not liable for payment of compensation. According to insurance company, accident occurred before amendment, therefore, in any capacity any person is not permitted to travel in goods vehicle because their risk is not covered under Section 147 of the Motor Vehicles Act as well as insured owner has not paid any additional premium covering risk of such person before insurance company. Therefore, company is not liable to pay compensation. The contention in respect to owner who himself driving matador died in accident, therefore, insurance company is not supposed to prove by leading evidence of any other person except owner who was died in accident. In light of this, first aspect is to be considered by this Court that before the Claims Tribunal, nowhere insurance company has raised contention that accident occurred prior to amendment. This fact has not been brought to notice of Claims Tribunal. It is necessary for insurance company to brought on record real facts for notice of Claims Tribunal that accident is occurred prior to amendment and that is how risk of passengers are not covered.
10. I have perused the entire award and going through entire award, I am not able to find such contention raised by insurance company that accident occurred on 11/9/1990 i.e. before amendment made in Section 147 of Motor Vehicles Act. Therefore, insurance company is not liable. Therefore, whole matter remained as it is between insurance company and claimants to decide whether passengers were travelling as a owner of goods or not but neither lawyer of insurance company or Claims Tribunal examined real question that accident is occurred prior to amendment of Section 147. Therefore, this very important question not raised by insurance company before Claims Tribunal therefore that question remained without examination by Claims Tribunal and merely matter remained to examine whether persons travelling in matador are owner of goods or not. These facts are totally irrelevant if main contention has not been raised by insurance company, therefore, according to my opinion, insurance company has failed to raise proper question before Claims Tribunal that accident is occurred before amendment made in Section 147 on 14/11/1994. That aspect remained as it is for examination by Claims Tribunal and for that according to my opinion, Tribunal has not committed any error in deciding question which has been raised by the insurance company before Claims Tribunal. The Claims Tribunal has decided the factual controversy raised by parties. The claimants' case was they were travelling as owner of goods on date of accident. This fact denied by Insurance Company. Except that there is no other point raised by Insurance Company before Claims Tribunal. Therefore, Claims Tribunal relying upon evidence produced and led by claimants, come to conclusion that at the time of accident persons were travelling as owner of goods. The burden upon company to disprove said facts by leading rebuttal evidence but no evidence led by company for disproving facts. So burden is not discharged by company. So view taken by Claims Tribunal based on facts cannot be vitiated as baseless and perverse. In such circumstances view taken by this Court in case of National Insurance Company Ltd. v. Lakhuben Punabhai Vaghri and Ors. reported in 2006 (2) GLH 468. Revevant paras i.e. Para Nos. 6 and 7 are quoted as under:
6. It is now settled by a catena of decisions of the Supreme Court that all defences are to be proved by the insurer like the appellant. In the face of this specific averment in the claim petitions that the persons were travelling alongwith their goods, the onus to disprove this averment rests upon the appellant Insurance Co. Had the appellant - Insurance Company discharged this onus, it would have gone a long way in proving whether, or not, the deceased persons were gratuitous passengers. Unfortunately, it has failed to do so and has not even brought the driver of the offending truck into the witness box. The burden to prove the breach of a term of contract rests squarely on the party which complains of such breach. The test which can be applied in such a situation would be that which party would fail if no evidence is led or the onus is not discharged. In the present case, the answer would be the appellant-Insurance Company. In this behalf, reference can be made to 1985 ACJ 397 (Narcinva V. Kamat v. Alfredo Antonio Doe Martins) and : AIR2004SC1531 (National Insurance Co. Ltd. v. Swaran Singh). In National Insurance Co. Ltd. v. Swaran Singh (Supra) the Supreme Court has observed as under:
62. the proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability. (See Sohan Lal Passi, : AIR1996SC2627 .
102 ((i)**********
(ii) **************
(iii)**************
(iv) The Insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle, the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.
7. Applying the ratio of the law laid down by the Supreme Court, as referred to above, it is evident that the appellant, in the present case has failed to lead any evidence in order to prove that the deceased persons were gratuitous passengers who were travelling in an unauthorised manner in the truck and without any goods. The specific averment in the claim petition that the deceased persons were travelling in the truck alongwith their goods has not been dislodged during the entire proceedings before the M.A.C. Tribunal and in the absence of any evidence or material on record to the contrary, it has rightly been relied upon by the M.A.C. Tribunal to come to the conclusion that the deceased persons were travelling in the truck alongwith their goods and, as such they were not gratuitous passengers. Having failed to discharge the burden of proof in support of this contention, it is not open to the appellant at this stage to try and bring about a re-appraisal of the evidence on facts. There is no reason for this Court to go into the factual aspect of the matter or enter into a re-appraisal of evidence since the impugned judgment and award does not suffer from any illegality or perversity.
11. The decision which has been relied upon by learned advocate Mr. Vibhuti Nanavati, referred above for principle, there is no difference of opinion in respect to ratio laid down by Hon'ble Apex Court in each case but question is whether important question is raised by insurance company before Claims Tribunal, if it is not raised than there is no need by Claims Tribunal to examine it, therefore, according to my opinion, Claims Tribunal has rightly decided matter considering fact that amended Section 147 is made applicable to present accident. It is also necessary to consider one more important aspect which has not been raised by insurance company and Claims Tribunal has also not decided. The question is whether matador is passenger vehicle or goods vehicle. This question is remained open as not examined by Claims Tribunal. If contention is not raised by insurance company before Claims Tribunal in respect to amended Section 147 and Claims Tribunal has not examined it than it should not be case of advocate of insurance company that such contention was raised and not decided by Claims Tribunal. Duty of Court is to examine contention which is to be raised by party before Court. If a party has not raised particular contention, than Court should not have to bother to decide such a contention without raising by either side. Therefore, Claims Tribunal has rightly considered matter as it is and examine it whether on date of accident persons those who were travelling in matador are owner of goods or not. For that evidence of claimants was accepted by Claims Tribunal that they were travelling as owner of goods and against that no evidence is led by insurance company before Claims Tribunal, therefore, accepting evidence of claimants, according to my opinion, the Tribunal has rightly come to the conclusion that at the time of accident, persons those who were travelling in matador were owner of goods. Therefore, Claims Tribunal has held insurance company liable to pay compensation to claimants. The Claims Tribunal has misunderstood terms and conditions of policy will have no adverse effect because Claims Tribunal has considered fact that if any person is travelling in matador as owner of goods than insurance company is liable to pay compensation. On that presumption, entire award has been passed. That presumption of Claims Tribunal remained as it is because contrary to that, no contention raised by insurance company before Claims Tribunal to effect that looking to date of accident, prior to amendment question of travelling by any person as owner with goods or without owner of goods makes no difference. Therefore in such circumstances, no error can be found from Claims Tribunal where such question not raised by the insurance company before Tribunal to avoid liability of compensation to claimants. Therefore, question of equity in such circumstances does not arises because matter has been decided by Court in accordance with law. Learned advocate Mr. Vibhuti Nanavati relied on decision of Hon'ble Apex Court, reported in AIR 2008 SC 171 (supra), para-21 which has been referred by this Court where Court should not have to exercise the jurisdiction of equity contrary to law. In this case, there is no question of exercising the power in respect of equity because law suggest or a bias obligation upon party to raise all question before Tribunal. If insurance company remained silent than there is no challenge before Claims Tribunal to decide matter on basis of evidence on record. Therefore, in this case Tribunal has decided the matter according to law and if contention is not raised which is available to insurance company to be raised than, Claims Tribunal is not duty bound to decide matter in respect to question which is not raised by party before Claims Tribunal. The party should have brought to notice of Court a relevant provisions of law for deciding matter according to law but if party has failed to do so, than the blame cannot be made against Claims Tribunal that Claims Tribunal has not considered amended and not amended Section 147 of the Act. Therefore, decision of Hon'ble Apex Court is not applicable to facts and circumstances of this case because exercising jurisdiction on equity does not arise here. It is also necessary to note one important aspect that if contention not raised than the Tribunal cannot examine it and if it is not found placed in the award, naturally such contention is not raised by insurance company before Claims Tribunal. The view taken by Hon'ble Apex Court that duty of Court to decide matter on basis of contentions raised by parties and the Court cannot go beyond contentions raised by parties. This aspect has been considered by apex court in case of Jagvirsingh and Ors. v. State (Delhi Admn.) reported in 2007 (5) Supreme 214. Relevant discussion made by apex court in para 4 of said decision is reproduced as under:
4. If really there was no concession, the only course open to the appellants was to move the High Court in line with what has been said in State of Maharashtra v. Ramdas Shrinivas Nayak and Anr. : 1982CriLJ1581 . In Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. and Ors. 2002 AIR SCW 4939, the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party while the matter is still fresh in the minds of the Judges, to call the attention of the very Judge who has made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellants to contend before this Court to the contrary.
12. Similarly, recently also, this aspect has been examined by apex court in case of Mohd. Akram Ansari v. Chief Election Officer and Ors. reported in 2008 AIR SCW 416. Para 14 of said decision is reproduced 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 rebuttable 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.
13. Recently also, apex court has delivered judgment on 21st November, 2008 in case of Md. Rafique @ Chachu v. State of West Bengal reported in 2008 (15) SCALE 15 wherein it was observed by apex court that 'if a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party while the mater is still fresh in the minds of the Judges to call the attention of the very judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the mater must necessarily end there. It is not open to the appellant to contend before this Court to the contrary.' Relevant discussion made in para 5 of said decision is reproduced as under:
5. It would be logical to first deal with the plea relating to absence of concession. It is to be noted that the appellant conceded certain aspects before the High Court. After having done so, it is not open to the appellant to turn around or to take a plea that no concession was given. This is clearly a case of sitting on the fence and it is not to be encouraged. If really three was no concession, the only course open to the appellant was to move the High Court in line with what has said in State of Maharashtra v. Ramdas Shrinivas Nayak : 1982CriLJ1581 . In a decision Bhavnagar University v. Palitana Sugar Mill (P) Ltd. : AIR2003SC511 the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the court are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. if a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party while the mater is still fresh in the minds of the Judges to call the attention of the very judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the mater must necessarily end there. It is not open to the appellant to contend before this Court to the contrary. The above position was highlighted in Roop Kumar v. Mohan Thedani : [2003]3SCR292 .
14. The Hon'ble Apex Court in the case of Ex. Constable Ramvir Singh v. Union of India, reported in 2009 AIR SCW 163 also, in para Nos. 9 and 10, observed as under:
9. The question as to whether he was discriminated against vis-a-viz the afore-mentioned Kalipada Mandal having not been raised by him before the High Court, we are of the opinion that it is not possible for us to consider the said contention which has been raised for the first time. Mr. Pandey submitted that such a contention had been raised in the Writ Petition. It might have been raised but it does not appear from the impugned judgment that the same was pressed before the High Court. This Court is bound by the Judge's record. If the High Court, as contended by Mr. Pandey, despite raising a contention in that behalf did not deal therewith, the only remedy available to him was to move the High Court drawing its attention thereto. Apart from the fact that the said procedure was not adopted by appellant, even before us, neither the counsel appearing in the High Court nor the appellant, affirmed any affidavit that such a contention, in fact, had been raised before the High Court. It is, therefore, not possible for us to accept that the contention as regards the discrimination against the appellant viz-a-viz the said Kalipada Mandal was raised.
10. In State of Maharashtra v. Ramdas Shrinivas Nayak (1982) 2 SCC 462, this Court held:
4. When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. 'Judgments cannot be treated as mere counters in the game of litigation.' (Per Lord Atkinson in Somasundaram Chetty v. Subramanian Chetty.) We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact tat the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhu Sudan Chodhri v. Chandrabhai Chowdhrain.) That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.[See also Bhavnagar University v. Palitana Sugar Mill (P) Ltd. (2003) 2 SCC 111 and Dhandabhai Khalasi v. State of Gujarat (2007) 4 SCC 241].
15. In view of observations made by Hon'ble Apex Court, according to my opinion, Claims Tribunal has rightly examined the matter in respect to contention raised before it. For that, Claims Tribunal has not committed any error in deciding the claim petitions filed by claimants. The Insurance Company cannot expect from Tribunal to find out contention by Claims Tribunal in their favour while deciding the petitions filed by claimants. The Claims Tribunal has been constituted neither for help of insurance company or claimant but it is a beneficiary legislation to decide case under legislation and than to find out equity in favour of claimants. For that Claims Tribunal has not committed any error which requires interference of this Court. After considering law which has been discussed by this Court raised by learned advocate Mr. Vibhuti Nanavati, according to my opinion, on basis of facts, Claims Tribunal has rightly examined matter and not committed any error which requires interference of this Court. Therefore, the appeals filed by Insurance Company are having no substances, require to be dismissed. Hence all above appeals are dismissed.
16. In view of orders passed by this Court today in first appeals, civil applications for stay does not survive. Same are, therefore, disposed of accordingly. If any amount is deposited by insurance company before Registry of this Court, Registry of this Court is directed to transmit same immediately to concerned Claims Tribunal. Interim relief granted by this Court at time of condoning delay to be vacated.