IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 MACA.No. 1186 of 2006() ------------------------------------ OPMV.326/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/PETITIONER ------------------------------------ JOJI, S/O.JOHN, VADAKKAMURIYIL HOUSE, NELLIAMATTAM KARA, THODUPUZHA TALUK. BY ADV. MR.S.SREEKUMAR RESPONDENTS/RESPONDENTS: ------------------------------------------------ 1. C.S. JOHN, S/O.SAMUEL, CHOLAKATT HOUSE, ARAKULAM P.O., MOOLAMATTOM. 2. AJITH KUMAR, S/O.JANARDHANAN, PURAYIDATHIL HOUSE, VELLIYAMATTAM KARA, DO. VILLAGE. 3. THE BRANCH MANAGER, ORIENTAL INSURANCE CO.LTD., MUVATTUPUZHA BRANCH. R3 BY MR.MATHEWS JACOB, SENIOR ADVOCATE, ADV. MR.P.JACOB MATHEW. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. ........................................... M.A.C.A.No.1186 OF 2006 ............................................. Dated this the 24th day of March, 2010. J U D G M E N T This appeal is preferred against the award of the Claims Tribunal, Thodupuzha in OP(MV)No.326/2001. It is the case of the claimant that while travelling as a pillion rider in a motor bike driven by the second respondent, on account of the rash and negligent driving of the motor cyclist, the vehicle overturned resulting in injuries to him. The tribunal on analysis of the materials held against the claimant and he has come up in appeal. 2. Heard the learned counsel for both sides. The definite case of the insurance company is to the effect that it was the claimant who was riding the motor bike and secondly that the policy issued is only an act only policy and even if he is a pillion rider, he will not be covered by the terms and conditions of the policy. The tribunal found that since the alleged rider has not taken the injured to the hospital, the probability is that he had not ridden the vehicle. Then the tribunal would say that since it is not stated in the : 2 : M.A.C.A.No.1186 OF 2006 wound certificate that the claimant was travelling as a pillion rider, it also adds to the same and lastly the tribunal opines that since the FIR is lodged only four days after the accident, it also creates suspicious circumstance. 3. The learned counsel for the appellant would contend that he was under the impression that intimation has been given by the hospital authorities but the belated giving is not a mistake on his part. He would also contend that the police after investigation has filed a charge sheet and the accused therein had entered appearance and pleaded guilty. Further it is submitted that authenticity or correctness of what is recorded in the wound certificate has not been proved by examining the person who has made those entries. There are points which really worth consideration. It is true that judgment of the criminal court may not be binding on the motor accident claims tribunal. At the same time one is not expected to enter into a decision on the basis of conjectures and surmises. 4. Therefore I am inclined to grant an opportunity. So far as the act only policy is concerned, it is also a matter : 3 : M.A.C.A.No.1186 OF 2006 worth consideration for the reason that by virtue of the decision of the Apex Court in the decision reported in United India Insurance Co. Ltd. Tilak Singh [2006 (2) KLT 884 (SC)], the status of a pillion rider covered by an act only policy is that of a gratuitous passenger who is not to be indemnified by the insurance company. But in the light of the summary dismissal, the tribunal has not entered into a finding on that aspect, at the same time when such a finding is entered into, the junction of the owner of the vehicle is absolutely necessary for the reason that it will have a binding effect on him. 5. Therefore the award under challenge is set aside and the matter is remitted back to the tribunal with a direction to permit all concerned to produce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. Since R1 has chosen to remain ex parte, the claimant shall take out notice to him again and the matter be disposed of in his presence. Parties are directed to appear before the tribunal on 28.04.2010. : 4 : M.A.C.A.No.1186 OF 2006 Disposed of accordingly. M.N. KRISHNAN, JUDGE cl