IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 MACA.No. 1054 of 2009(A) ------------------------------- OPMV.1946/2002 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL,KOTTAYAM .................... APPELLANT(S)/ 3RD RESPONDENT: ----------------------------------------- THE NEW INDIA ASSURANCE COMPANY LIMITED, KOTTAYAM NOW REP. BY ITS MANAGER, REGIONAL OFFICE, M.G. ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S)/ PETITIONER : ------------------------------------- VARGHESE THOMAS, S/O. P.T. THOMAS, PULLUKATTU HOUSE, PUTHENCHANTHA P.O., VAKATHANAM, KOTTAYAM. ADV. SRI.PHILIP T.VARGHESE FOR R1 SRI.THOMAS T.VARGHESE FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1054 OF 2009 = = = = = = = = = = = = = = = Dated this the 29th day of September, 2009. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kottayam in O.P.(MV)1946/02. The claimant was riding a motorbike bearing Reg.No.KL- 5K/1133 from Changanacherry to Haripad and when it reached the place of accident another bike bearing Reg.No.KL-5G-8710 ridden by the first respondent came in a rash and negligent and manner and hit him resulting in injuries to him. The Tribunal on an exhaustive consideration of the materials available awarded a compensation of Rs.87,500/- and directed the insurance company to pay the amount. 2. The insurance company has challenged the award mainly on the ground that the accident had not taken place as alleged and therefore the claimant is not liable to be paid by the Company. The evidence in this case consists of the oral testimonies of PWs.1 and 2. Exts.A1 to A14 and X1 M.A.C.A. 1054 OF 2009 -:2:- were marked. At the out set I may like to state that the insurance company's pleading is almost admitting the involvement of the vehicle insured by it. I extract paragraph 4 for the purpose of the same. “No accident occurred as alleged in the petition. There was no rashness or negligence on the part of the driver of the said vehicle for causing the accident. He was driving the vehicle in a moderate speed and in conformity with all traffic regulations and the alleged accident if any, occurred only due to the negligence of the petitioner.” A reading of this paragraph would reveal that the insurance company raised the contention that negligence was on the part of the claimant and not on the part of the rider who is arrayed as respondent and therefore it is not liable. It is also to be stated that nowhere in the written statement there is a pleading that there is a collusion between the claimant and respondents 1 and 2, but only at the time of seeking permission u/s 170 it is stated. So it is in this background one has to analyse the case. It is to be stated that the M.A.C.A. 1054 OF 2009 -:3:- matter is not supported by pleadings. Parties are not expected to deviate from the pleadings and the Court is not competent to consider something which is not in the pleadings. So on that count alone the contention of the insurance company is to be negatived. For the purpose of completion I will refer to the other matters as well. 3. The accident took place on 30.4.2002 and the claimant was treated as an inpatient till 10.5.2002. A private complaint was filed by his brother on 13.5.2002 and it was referred u/s 156(3) Cr.P.C. and a charge sheet was filed after the investigation. In the process of investigation the investigating agency has recorded 161 statement of the complainant as well as the pillion rider who was accompanying him. It was found as a basis with other evidence and the police has proceeded with the investigation. Then the point the learned counsel for the insurance company wants to highlight is that in Ext.X1 case diary it is stated that the cause of injury is the fall on one day. The fall on one day is not described in detail. The doctor who had M.A.C.A. 1054 OF 2009 -:4:- treated and admitted is no more. His assistant has been examined as PW2. He had given one certificate and he had deposed that there was road traffic accident. The investigating agency has recorded the subsequent medical records supported by the evidence of PW2 as well as the oral evidence of PWs.1 and 2. The insurance company has not produced any such evidence. It created a suspicion in the mind of the Court relating to the accident. A suspicion cannot be a substitution for proof. Non availability of pleadings coupled with the other attending circumstances it may not be possible for this Court sitting in the appellate jurisdiction to interfere with the well considered judgment of the Tribunal. Therefore the appeal lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/-