Kerala High Court
Mithun George vs Future General India Insurance Company ... on 16 July, 2025
2025:KER:52409
M.A.C.A.No.238 of 2020 and
Cross Objection No.35 of 2020
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 16TH DAY OF JULY 2025 / 25TH ASHADHA, 1947
MACA NO. 238 OF 2020
AGAINST THE AWARD DATED 18.10.2019 IN OP(MV) NO.429 OF
2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR
APPELLANT/2ND RESPONDENT:
FUTURE GENERAL INDIA INSURANCE COMPANY LIMITED,
A COMPANY INCORPORATED UNDER THE COMPANIES ACT,
HAVING ITS REGISTERED OFFICE AT INDIA BULLS
FINANCE CENTRE, TOWER 3, 6TH FLOOR, SENAPATI BAPAT
MARG, ELPHINSTONE (W), MUMBAI, PIN - 400013 AND
REGIONAL OFFICE AT 3RD FLOOR, CENTRAL WAREHOUSING
CORPORATION BUILDING, MAVELI ROAD, KADAVANTHARA,
KOCHI, PIN - 682 020, REPRESENTED BY ITS ASSISTANT
MANAGER - LEGAL, ALICE JOHN, AGED 40 YEARS,
W/O. RONIO BABU, RESIDING AT FLAT NO.304, IBIZA-1,
DREAM FLOWER FLATS, SHENOY ROAD, COCHIN - 682 017.
BY ADV SRI.THOMAS M.JACOB
RESPONDENTS/PETITIONER & 1ST RESPONDENT:
1 MITHUN GEORGE
AGED ABOUT 24 YEARS
S/O. GEORGE, THAIPARAMBU HOUSE,
KIZHAKKUMPURAM KARA, KOTTAYIL KOVILAKAM,
CHENDAMANGALAM VILLAGE,
ERNAKULAM DISTRICT, PIN - 683 512.
2 SAM MATHEW
AGED 41 YEARS
2025:KER:52409
M.A.C.A.No.238 of 2020 and
Cross Objection No.35 of 2020
2
S/O. MATHEW, VADASSERY HOUSE, KIZHAKKUMPURAM WEST
KARA, CHENDAMANGALAM VILLAGE, ERNAKULAM DISTRICT,
PIN - 683 512.
BY ADV SHRI.A.N.SANTHOSH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 8.7.2025 AND THE COURT ON 16.07.2025, ALONG WITH
CO.35/2020, DELIVERED THE FOLLOWING:
2025:KER:52409
M.A.C.A.No.238 of 2020 and
Cross Objection No.35 of 2020
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 16TH DAY OF JULY 2025 / 25TH ASHADHA, 1947
CO NO. 35 OF 2020
ARISING FROM MACA NO.238 OF 2020
AGAINST THE AWARD DATED 18.10.2019 IN OP(MV) NO.429 OF
2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR
CROSS OBJECTOR/1ST RESPONDENT:
MITHUN GEORGE
AGED 25 YEARS
S/O.GEORGE, THAIPARAMBU HOUSE,KIZHAKKUMPURAM KARA,
KOTTAYIL KOVILAKOM, CHENGAMANAD VILLAGE.
BY ADV SHRI.A.N.SANTHOSH
RESPONDENT/APPELLANT:
FUTURE GENERAL INDIA INSURANCE COMPANY LTD.
MUSCUT TOWERS, SA ROAD, KADAVANTHRA,
KOCHI - 682 020 REPRESENTED BY ITS ASSISTANT
MANAGER-LEGAL.
THIS CROSS OBJECTION HAVING BEEN COME UP FOR FINAL
HEARING ON 8.7.2025 AND THE COURT ON 16.07.2025, ALONG WITH
MACA.238/2020, DELIVERED THE FOLLOWING:
2025:KER:52409
M.A.C.A.No.238 of 2020 and
Cross Objection No.35 of 2020
4
C.S.SUDHA, J.
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M.A.C.A.No.238 of 2020 and
Cross Objection No.35 of 2020
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Dated this the 16th day of July 2025
JUDGMENT
This appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 (the Act) by the second respondent/insurer in O.P.(MV) No.429/2018 on the file of the Motor Accidents Claims Tribunal, N.Paravur, (the Tribunal), aggrieved by the Award dated 18/10/2019. The first respondent herein is the claim petitioner, who has filed the cross objection claiming enhancement. In this appeal and cross objection, the parties and the documents will be referred to as described in the original petition.
2. According to the claim petitioner, on 26/02/2017 at 02:30 p.m. while he was riding motorcycle bearing registration 2025:KER:52409 M.A.C.A.No.238 of 2020 and Cross Objection No.35 of 2020 5 no.KL-42/M-2068 through Kottayil Kovilakam-Malavana ferry road and when he reached the place of occurrence, car bearing registration no.KL-42/E-9995 driven by the first respondent in a rash and negligent manner knocked him down, as a result of which he sustained serious injuries. A sum of ₹15,00,000/- was claimed as compensation under various heads.
3. The first respondent/owner cum driver of the offending vehicle filed written statement denying all the averments in the petition. The respondent contended that he was not present at the place of occurrence during the time of accident. Compensation claimed under various heads was contended to be excessive.
4. The second respondent/insurer filed written statement admitting the existence of a valid policy. The negligence attributed to the first respondent was denied.
5. Before the Tribunal, PW1 was examined and Exts.A1 to A9 were marked on the side of the claim petitioner. No oral or 2025:KER:52409 M.A.C.A.No.238 of 2020 and Cross Objection No.35 of 2020 6 documentary evidence was adduced on the side of the respondents.
6. The Tribunal on consideration of the oral and documentary evidence and after hearing both sides, found that the accident was due to the negligent driving of the first respondent/driver. Hence awarded an amount of ₹4,02,300/- together with interest @ 9% per annum from the date of the petition till realisation along with proportionate costs. Aggrieved by the quantum of compensation, the second respondent/insurer has come up in appeal.
7. The only point that arises for consideration in this appeal and cross objection is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court.
8. Heard both sides.
9. It was submitted by the learned counsel for the second respondent/insurer that when Ext.A3 final report is a refer report, the Tribunal erred in holding that the first respondent was negligent 2025:KER:52409 M.A.C.A.No.238 of 2020 and Cross Objection No.35 of 2020 7 in driving his vehicle. When negligence had not been proved, the second respondent/insurer could not have been held liable. It was also submitted that the second respondent had filed I.A.No.2297/2019 before the Tribunal to summon the investigating officer and to produce the case dairy in order to substantiate his contention of no negligence on the part of the first respondent/driver. In fact the application was also allowed by the Tribunal. However, the investigating officer filed a report to the effect that the CD was lost in the 2018 floods and hence he was unable to produce the same. In the light of the said report, the Tribunal did not permit examination of the investigating officer. Per contra, it was submitted by the learned counsel for the claim petitioner that in order to prove negligence, the claim petitioner examined himself as PW1. His testimony has not been discredited and hence the Tribunal was right in finding negligence on the part of the first respondent/driver.
2025:KER:52409 M.A.C.A.No.238 of 2020 and Cross Objection No.35 of 2020 8
10. Ext.A3 final report does not say that the first respondent/driver was rash or negligent. On the other hand, it says that the incident was an 'accidental motor occurrence'. Therefore, the conclusion of the Tribunal based on the dictum in New India Assurance Company Ltd. v. Pazhaniammal, 2011(3) KLT 648 that production of police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Act, is apparently incorrect.
11. In an application under Section 166 of the Act, it is the burden of the claim petitioner to prove negligence of the driver of the offending vehicle. Here, Ext.A3 final report is of no help to the claim petitioner. The claim petitioner examined himself as PW1. In the proof affidavit filed in lieu of chief examination, he has inter alia stated that the car bearing registration number KL-42-E-9995 driven by the first respondent in a rash and negligent manner and in great speed, came from the wrong side and hit his vehicle, that 2025:KER:52409 M.A.C.A.No.238 of 2020 and Cross Objection No.35 of 2020 9 the accident occurred due to the negligence and speeding by the first respondent ; that the police had registered a case against the respondent ; that due to the undue influence of the first respondent, the final report says that the accident occurred due to an accidental collision, which is against facts ; that the accident did not occur at the place mentioned in the scene mahazar and that the police referred the case, due to the undue influence of the first respondent. In the cross-examination PW1 admitted that he had not filed any protest complaint against Ext.A3 final report. He denied the suggestion that he did not give such a complaint because the accident occurred due to his negligence. No eye witness was examined in this case.
11.1. Ext.A2 scene mahazar disproves the claim petitioner's case of negligence. As per Ext.A2, the road at the scene of occurrence lies in the north-south direction. The claim petitioner was riding his motorcycle from north to south. The total width of 2025:KER:52409 M.A.C.A.No.238 of 2020 and Cross Objection No.35 of 2020 10 the road at the spot is 3.60 mtrs. The scene of occurrence is 1.73 mtrs east from the western tar end of the road. The right side of the claim petitioner was the eastern side of the road. However, he is seen to have strayed into the western side of the road, which was the right side of the first respondent/driver. Though PW1 says that Ext.A2 scene mahazar is not correct, he has not taken any steps to disprove the same. It was submitted by the learned counsel for the claim petitioner that Ext.A2 scene mahazar was prepared four days after the incident and hence the same cannot be believed and so the mahazar cannot be relied on. It was also submitted that even assuming that the claim petitioner had strayed into the wrong side of the road, negligence could only have been contributory and therefore the percentage of contributory negligence be fixed and compensation awarded accordingly. I am afraid I disagree with the argument advanced in the light of Ext.A2 scene mahazar, which has been marked through PW1, but not disproved in this 2025:KER:52409 M.A.C.A.No.238 of 2020 and Cross Objection No.35 of 2020 11 case. In the light of Ext.A2 scene mahzar, the burden was on the claim petitioner to establish that he was compelled to go to the wrong side due to unavoidable reasons and that the first respondent/driver could have swerved his vehicle and avoided collision. However, no such evidence has come on record in the case on hand. Therefore, on the basis of the materials on record, the negligence of the first respondent/driver cannot be found. In an application under Section 166 of the Act when negligence cannot be established, the second respondent/insurer cannot be held liable for the compensation amount.
In the result, the appeal is allowed and the impugned Award is set aside. The cross objection stands dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S. SUDHA JUDGE ami/