IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 MACA.No. 961 of 2006(B) ----------------------------------- (O.P (MV).NO.612/1997 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA) .................... APPELLANT/PETITIONER: ------------------------------------- BINOY, S/O. STEPHAN, AGED 25 YEARS, KUNNUMPURATHU HOUSE, VENGALLOOR KARA, MANAKADU VILLAGE, THODUPUZHA TALUK. BY ADVS. SRI.T.J.MICHAEL, SRI.P.NOORSAMIR. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. JOY .S. KOTTUTHAN, KOLANI P.O., THODUPUZHA. 2. BIJU, S/O. JOSEPH, ANCHANICKAL HOUSE, MARIKA KARA, PALAKUZHA VILLAGE. 3. THE ORIENTAL INSURANCE CO. LTD., REP. BY ITS BRANCH MANAGER, JYOTHI SUPER BAZAAR, THODUPUZHA. R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA). THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. ........................................... M.A.C.A.NO.961 OF 2006 ............................................. Dated this the 9th day of July, 2010. J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Thodupzha in OP(MV)No.612/1997. It is the case of the claimant that while he was standing on the road, a two wheeler driven by the second respondent came in a rash and negligent manner, hit on him and another (Thomaskutty) resulting in serious injuries to him. He had sustained grievous injury and therefore prays for compensation. 2. The insurance company would contend that he was only travelling as a pillion rider in the two wheeler and the vehicle was covered only by an act only policy and therefore the claimant is not entitled to any compensation from the company. The learned Tribunal had dismissed the claim application. It is against that decision, the claimant has come up in appeal. 3. Heard the counsel for both sides. The learned counsel for the appellant would contend that the police has : 2 : M.A.C.A.NO.961 OF 2006 filed a charge sheet against the second respondent and witness of the claimant had not been cross examined and therefore, the Tribunal was not justified in dismissing the case. 4. On the other hand, the learned counsel for the insurance company would contend that the father of the claimant immediately after the accident admitted the son in a hospital and he had stated before the doctor that the accident took place on account of the skidding of the two wheeler. The same father after two weeks moved an application before the Magistrate for registering a case against the second respondent for rash and negligent driving. There are certainly suspicious circumstances in this case. But mere suspicion cannot be a substitute for proof. Both sides have to produce materials before the court and then only the court will be in a position to analyse the correctness of the same. Non cross examination by the insurance counsel and non examination of Thomaskutty by the claimant also creates doubt in the mind of the court. So the best possible method to be adopted is to give them an opportunity to contest the : 3 : M.A.C.A.NO.961 OF 2006 case by producing documentary as well as oral evidence. If it is only an act only policy, the status as a pillion rider may possibly be beneficial to the insurance company. If it is not so, then necessarily the insurance company has to be made liable. The policy is not produced before the court. 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. The insurance company shall produce the copy of the policy as well. I make it very clear that I have not expressed anything on the merits of the case. Parties are directed to appear before the Tribunal on 20.8.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 4 : M.A.C.A.NO.961 OF 2006