IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 MACA.No. 2157 of 2006() ----------------------------------- OPMV.2409/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT/2ND RESPONDENT ----------------------------------------- THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD., THIRUVANANTHAPURAM, NOW REP. BY ITS MANAGER, KOCHI REGIONAL OFFICE, AJAY VIHAR, M.G.ROAD, KOCHI-16. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENTS - APPLICANTS: -------------------------------------- 1. M.RAJESH, S/O.P.MUKTHASEELAN, MUTTATTUVARAMBIL VAYAL, NIKATHIYA VEEDU, KALLADIMUKHAM, KONCHIRAVILA, MANACAUD P.O., THIRUVANANTHAPURAM. 2. BALAMURUKAN, TC/40/1268, ARUVIKKARA LANE, SRIVARAHAM, MUTTATHARA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.R.NARENDRAN NAIR FOR R1 SRI.R.NARENDRAN NAIR FOR R.2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO.2398 OF 2006 IN MACA NO.2157 OF 2006 DISMISSED. 10.7.2008 ID/- M.N. KRISHNAN, JUDGE. vsv M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2157 OF 2006 = = = = = = = = = = = = = = = Dated this the 10th day of July, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thiruvananthapuram in O.P.(MV) 2409/02. The Tribunal awarded a compensation of Rs.30,250/- and directed the insurance company to pay the amount. The person involved in the accident was travelling as a pillion rider in a vehicle. Now, the insurance company has filed the appeal challenging the liability on the ground that in the light of Tilak Singh's case [United India Insurance Co. Ltd. v. Tilak Singh (2006 (4) SCC 404) they are not bound to pay the compensation. 2. A case has to be decided on the basis of materials pleaded. Here what I find is there is absolutely no averment that pillion rider is not covered by the policy and that no additional premium is collected for a pillion rider. What has to be decided in a case is on the basis of the pleadings. It M.A.C.A. 2157 OF 2006 -:2:- may not be proper by this Court at this stage of appeal to consider that question without a pleading. Learned counsel had relied upon the decision of the Apex Court reported in National Insurance Corpn. Ltd. v. Kanti Devi (2005 (5) SCC 789). It was a case where the question was regarding the driving licence. There was a pleading regarding the exoneration of liability on the question of driving licence. The Apex Court held that when the Tribunal decided the matter the decision of the Apex Court in Swaran Singh's case, National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781) was not available and therefore granted an opportunity to contest the case. The difference between the two is that it was a case where there was a pleading and as the latest decision has changed the position, the Apex Court granted an opportunity. But so far as the present case is concerned it is true that by a latest decision the Apex Court has held that a pillion rider is not covered by an Act only policy. But there is no pleading here at all that he is not covered by the policy. What is extracted in the M.A.C.A. 2157 OF 2006 -:3:- award is the existence of a valid insurance policy for the vehicle is further admitted by the 2nd respondent. So I am constrained not to entertain the plea raised by the learned counsel at the stage of appeal and therefore the appeal lacks merit and it is dismissed. M.N. KRISHNAN, JUDGE. ul/-