IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 MACA.No. 1533 of 2006(A) ------------------------------------ OPMV.458/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/3RD RESPONDENT ----------------------------------------- NATIONAL INSURANCE COMPANY LIMITED, THODUPUZHA, NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, AJAY VIHAR, M.G.ROAD, KOCHI-16. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENTS: PETITIONER AND RESPONDENT 1 & 2. -------------------------------------------------------------------------------- 1. JAIMON JOSEPH, S/O.JOSEPH, POOVATHUNKAL HOUSE, ERUTTUTHODU, NEDIYASALA P.O., THODUPUZHA. 2. T.J.JOHN, THOTTIYIL HOUSE, VAZHITHALA.P.O., MANAKKADU, THODUPUZHA. 3. SAJAN JACOB, S/O.CHACKO, ALLUMTHAZHATHU HOUSE, ERUTTUTHODU, NEDIYASALA P.O., VENGALLOOR, THODUPUZHA. BY ADV. SRI.T.K.KOSHY - R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO.1774/06 IN MACA. NO.1533/2006 DISMISSED 26/06/2008. SD/- M.N.KRISHNAN, JUDGE // TRUE COPY / Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1533 OF 2006 = = = = = = = = = = = = = = = Dated this the 26th day of June, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV)458/02. The Tribunal has awarded a compensation of Rs.41,000/- and directed 3rd respondent, insurance company to deposit the amount. The insurance company has challenged the award in appeal on the ground that the claimant being a pillion rider is not covered by the terms of the policy and therefore the award has to be set aside. A perusal of the written statement would show that the insurance company has raised a specific contention that the policy did not cover the risk of the pillion rider. It has been considered by the Tribunal and relying upon the decision in Oriental Insurance Co. v. Ajaykumar (1999 (3) KLT 886), the Court found the insurance company liable. The decision referred to above is no longer good law in the light of the decision of the Apex Court in Tilak Singh's case [United M.A.C.A. 1533 OF 2006 -:2:- India Insurance Co. Ltd. v. Tilak Singh (2006 (4) SCC 404)]. Over and above another Full Bench of this Court in the decision reported in Mathew Joseph v. Janaki (2007 ACJ 912), the Full Bench of this Court held that the decision referred to by the Tribunal is no longer good law. Now, at the stage of appeal the insurance company has produced policy in order to support its contention that the policy does not cover the risk of a pillion rider. It is contended by the other side that the said document cannot be received now in evidence as it is produced at a highly belated stage. Under Order 41 Rule 27 when a document was not in the custody or in spite of due diligence it cannot be produced or for any other sufficient reason it cannot be received, one cannot attribute so much of negligence on the insurance company for non production of the document because they were also governed by the law laid down by this Court at that point of time. But suffice to say they have raised a contention regarding the pillion rider. Therefore I feel in the light of the subsequent averments and the fact that the matter is still M.A.C.A. 1533 OF 2006 -:3:- pending consideration, it has to be stated that though belatedly it has to be raised for the purpose of giving a proper disposal of the case. Therefore I over rule the objection raised by the respondent's counsel and admit that document in evidence. But that document has to be perfectly proved and the terms has to be explained and if additional particulars are necessary that can be furnished by both sides. Therefore, the award under challenge is partly set aside and the matter is remitted back to the Tribunal for consideration of the question of the liability of the insurance company after admitting the document in evidence. The insurance company is permitted to adduce evidence in support of the contention and the Registry is directed to forward the documents produced along with I.A.1213/07 to the Tribunal for the purpose of looking into the matter. Both parties are directed to appear before the Tribunal on 5.8.2008. M.N. KRISHNAN, JUDGE. ul/-