Kerala High Court
The New India Assurance Company Limited vs Thankamani on 12 August, 2025
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M.A.C.A. No.234 of 2020
2025:KER:60301
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 12TH DAY OF AUGUST 2025 / 21ST SRAVANA, 1947
MACA NO. 234 OF 2020
AGAINST THE AWARD DATED 27.08.2019 IN OP(MV)NO.49 OF 2018 ON
THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, TALIPARAMBA.
APPELLANT/3RD RESPONDENT:
THE NEW INDIA ASSURANCE COMPANY LIMITED,
1ST FLOOR,OASIS PLAZA,AMEY ROAD,KASARAGOD.P.O,
PIN-671 121. REPRESENTED BY ITS ASSISTANT MANAGER,
REGIONAL OFFICE,M.G.ROAD,ERNAKULAM.
BY ADVS. SRI.GEORGE CHERIAN (SR.)
SMT.K.S.SANTHI
RESPONDENTS/PETITIONERS:
1 THANKAMANI, AGED 57 YEARS,
W/O P.V.KUMARAN,THALIKKARAN HOUSE,
ANOOR,KARIVELLUR.P.O,KANNUR DISTRICT, PIN-670 521.
2 P.V.KUMARAN,
AGED 64 YEARS,
S/O RAMANKUTTY,PUTHIYA VALAPPIL,
ANOOR,KARIVELLUR.P.O,KANNUR DISTRICT,PIN-670 521.
3 SHALINI T.,
AGED 37 YEARS,
W/O.RAMESAN.T.P,MATTUMMAL HOUSE,ACHAMTHURUTHI.P.O,
CHERUVATHUR,KASARAGOD DISTRICT,PIN-671 351.
4 CHANDINI T.,
AGED 34 YEARS,
W/O MANOJ.T.K,ANJANA HOUSE, P.O.EZHOME,
KANNUR DISTRICT, PIN-670 334.
BY ADVS. SRI.M.ANUROOP
SRI.P.SAMSUDIN
SRI.M.V.VINOD
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 06.08.2025, THE COURT ON 12.08.2025 DELIVERED THE
FOLLOWING:
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M.A.C.A. No.234 of 2020
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C.S.SUDHA, J.
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M.A.C.A. No.234 of 2020
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Dated this the 12th day of August, 2025
JUDGMENT
This appeal under Section 173 of the Motor Vehicles Act,
1988 (the Act) has been filed by the third respondent/insurer in O.P.
(MV) No.49/2018 on the file of the Motor Accidents Claims Tribunal,
Taliparamba (the Tribunal), aggrieved by the Award dated 27/08/2019.
The respondents herein are the claim petitioners in the petition. In this
appeal, the parties and the documents will be referred to as described in
the original petition.
2. The claim petitioners are the parents and sisters of the
deceased. According to the claim petitioners, on 12/02/2017 at about
07:30 p.m., while the deceased was riding motorcycle bearing
registration No. KL-60-960 through Kalikadavu-Anoor public road and
when he reached near Anoor V.V. Smaraka Mandiram, tempo traveller
bearing registration No.KL-38-E-5250 driven by the first respondent
in a rash and negligent manner knocked him down as a result of which
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he sustained grievous injuries to which he succumbed.
3. The first respondent/driver entered appearance but
did not file any written statement.
4. The second respondent/owner field written statement
admitting that there was no negligence on the part of the first
respondent/driver of the offending vehicle.
5. The third respondent/insurer filed written statement
admitting the policy, but denying negligence on the part of the first
respondent/driver of the offending vehicle. It was also contended that
the amount claimed was exorbitant.
6. Before the Tribunal, PW1 was examined and
Exts.A1 to A6 were marked on the side of the claim petitioners. RW1
was examined and Exts.B1 to B3 were marked on the side of the
respondents. Ext.X1 case diary was also marked.
7. The Tribunal on consideration of the oral and
documentary evidence and after hearing both sides, found negligence
on the part of the first respondent/driver of the offending tempo
traveller resulting in the incident and hence awarded an amount of
₹13,01,200/- together with interest @ 9% per annum from the date of
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the petition till the date of realisation along with proportionate costs.
Aggrieved by the Award, the third respondent/insurer has come up in
appeal.
8. The only point that arises for consideration in this
appeal is whether there is any infirmity in the findings of the Tribunal
calling for an interference by this Court.
9. Heard both sides.
10. It was submitted by the learned senior counsel
appearing for the third respondent/insurer that the accident occurred
due to the negligence of the deceased and not due to the negligence on
the part of the first respondent/driver of the insured vehicle. Exts.B1
scene mahazar and B2 sketch plan show the place of occurrence, which
would make it apparent that it was the deceased who had strayed into
the wrong side of the road, resulting in the accident. Per contra, it was
submitted by the learned counsel for the claim petitioners that the
deceased indicated his intention to turn right, that is, towards the west
by putting on the indicator and it was thereafter he turned towards the
west. Despite the same, the first respondent/driver came and dashed
against his vehicle, which was only due to the rash and negligence
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driving of the first respondent.
11. As per Exts.A1 FIR and A4 final report, it is the first
respondent who was rash and negligent in driving the vehicle which
caused the accident. As held in New India Assurance Company
Ltd. v. Pazhaniammal, 2011 (3) KHC 595, prima facie, the charge
sheet filed by the police after due investigation can be accepted as
evidence of negligence against the indictee. In case any of the parties
do not accept such charge sheet, the burden would be on such parties to
adduce oral evidence. If oral evidence is adduced by any party in a case
where charge sheet is filed, the Tribunal is to give further opportunity
to others also to adduce oral evidence and in such a case, the charge
sheet would lose its significance and the dispute will have to be
decided on the basis of evidence. In all other cases, charge sheet can be
reckoned as sufficient evidence of negligence in a claim under Section
166 of the Act. This does not mean that collusive charge sheets need
to be accepted. If from the facts of a given case, the Tribunal feels that
the police charge sheet does not satisfy the judicial conscience, the
Tribunals can record the reason(s) for the same and can call upon the
parties, at any stage, to adduce oral evidence of the accident and the
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alleged negligence. In such cases, the issue of negligence will have to
be decided on the other evidence, ignoring the charge sheet.
12. In the case on hand, PW1, an alleged eye witness,
was examined on behalf of the claim petitioners and RW1, the
investigating officer in Crime no.137/2017, Payyannur police station,
on behalf of the third respondent/insurer. The said crime was taken on
file as C.C.No.569/2017 by the Judicial First Class Magistrate,
Payyannur. PW1 in the chief examination deposed that the incident
took place on 12/02/2017 at about 07:30 p.m. The road at the place of
occurrence is lying in the north-south direction. The deceased was
riding his bike from north to south and the first respondent from south
to the north. The deceased after switching on the indicator indicating
his intention to turn towards west, rode to the western side of the road.
He had nearly reached the western side, when the accident occurred. In
the cross examination PW1 deposed that the accident occurred at a
junction and that there is a pocket road from the national highway
where the accident took place. PW1 denied having shown the place of
occurrence to the police. However, he admitted that it is his name and
address that has been mentioned in the scene mahazar as the person
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who identified the scene of occurrence to the police. According to
PW1, he had parked his autorickshaw by the western side of the road
and was sitting in the front seat of the autorickshaw and talking to one
Gopi, Thamban and Chandran who were sitting in the back seat of the
autorickshaw. In addition, 2 to 3 people were standing outside the
autorickshaw. PW1 on further cross examination deposed that before
the accident, he had not seen the motorcycle coming and that it was on
hearing the noise of the collision, he had looked in the direction from
where he heard the noise. He reached the spot after the accident had
occurred. PW1 to a question whether the deceased had overtaken any
other vehicle, expressed ignorance.
13. RW1 examined on behalf of the third
respondent/insurer is the Sub Inspector, Payyannur police station who
had conducted investigation into crime no.137/2017 and on completion
of investigation submitted Ext.A4 final report. According to RW1,
PW1 is the sole eye witness. In the chief examination, RW1 admitted
he had not questioned Thamban, Chandran etc. who were sitting inside
the autorickshaw of PW1 and talking to him. As per his investigation,
there is no eye witness apart from PW1. According to RW1, it was
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PW1 who had showed him the scene of occurrence on the basis of
which, the scene mahazar was prepared. He also deposed that the
deceased was not on the wrong side and that it was after switching on
the indicator that the deceased had turned towards the west. RW1 also
admitted that the road at the scene of occurrence is a straight road and
that one can see up to a distance of 100 mtrs. towards either side. In
the cross examination by the claim petitioners, RW1 deposed that there
is a pocket road to the west of the scene of occurrence. However, in
his re-examination when Ext.B2 sketch plan was marked, he deposed
that there is no pocket road on the western side and his testimony to the
said effect in the cross examination, was a mistake.
14. As both sides were unable to throw light on the result
of Ext.A4 charge sheet, a copy of the judgment in C.C.No.569/2017 on
the file of the Court of the Judicial First Class Magistrate, Payyannur
was obtained from the court concerned. In the aforesaid case, the first
respondent herein is the accused and he is alleged to have committed
the offences punishable under Sections 279 and 304A IPC. On going
through the judgment, I find that all the material prosecution witnesses
including PW1 herein, who was examined as PW2 in the said case
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turned hostile. Hence the accused therein, namely, the first respondent
herein was acquitted under Section 255(1) Cr.P.C.
15. Once a trial is conducted and the accused is acquitted,
the final report on the basis of which the case was taken on file, loses
its significance. If that be so, the question is what other evidence is
available on record to show negligence by the first respondent ? Apart
from the final report, there is only Exts.B1 scene mahazar and B2
sketch plan. As noticed earlier, according to RW1, it was PW1 who
had showed him the place of occurrence, but PW1 denied the same.
As held by a Division Bench of this Court in Philippose Cherian v.
T.A.Edward Lobo, 1991 ACJ 634, a scene mahazar is most often, if
not in all cases, prepared by the investigating officer during
investigation of the crime. In motor accident cases, scene mahazar is
prepared by the police officer while investigating into offences
disclosed in the first information report. A police officer is a public
servant and the scene mahazar is a record made in discharge of his
official duties. The entries in such record are themselves relevant facts
under Section 35 of the Indian Evidence Act. When the certified copy
of scene mahazar is marked without objection, the admissible portions
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therein can be used by the Tribunal if none of the parties disputes the
correctness thereof. It is open to the party who disputes the correctness
of such entries to examine anyone connected with the document for
showing that the entries are unreliable. Subject to this and subject to
the principles of natural justice, the Tribunals are legally competent to
make use of the entries in scene mahazar even if no person connected
with its making has been examined as a witness.
16. It is true that a mere statement in the scene mahazar
is not sufficient to find negligence. However, the claim petitioners
have no case that Exts.B1 or B2 is wrong. Ext.B1 shows that the road
at the place of occurrence is lying in the north-south direction. The
total width of the road is 8 mtrs. The deceased was riding his
motorcycle from north to south and the first respondent from south to
north. Therefore, the right side of the road of the deceased was the
eastern side and the right side of the road of the first respondent/driver,
the western side. The scene of occurrence is stated to be 1 mtr to the
east of the western road margin. Therefore, it appears that the deceased
had gone to the western side or the wrong side of the road. But, an
explanation has been given by PW1 and RW1 for the reason as to why
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the deceased was on the western side of the road. According to them,
as the deceased intended to turn towards west, he switched on his
indicator and rode towards west. It was only after he reached nearly
the western end of the road, the accident occurred.
17. The incident is seen to have occurred in the night, that
is, at about 07:30 p.m. As the first respondent has been acquitted,
Ext.A4 final report loses its significance. Apart from Ext.A4, there is
the testimony of PW1 and RW1 to which I have already referred to.
The testimony of both the witnesses is not quite satisfactory. However,
the fact that the accident took place and death was caused is not
disputed. In the absence of better evidence and in the light of Ext.B1
scene mahazar, it appears that both the deceased and the first
respondent have contributed to the accident. The deceased also ought
to have been more careful when he took the sharp turn towards west.
The fact that he nearly reached the western side of the road shows that,
had the first respondent also been more careful, the accident could
have been avoided. In the facts and circumstances of the case and from
the available materials on record, the negligence on the part of the first
respondent/driver seems to be on the lesser side. Hence, the
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negligence is fixed as 30% : 70%, that is, 30% by the first respondent/
driver and 70% by the deceased. Hence, the third respondent/insurer
shall be liable to pay only 30% of the Award amount. The impugned
Award shall stand modified to the said extent.
In the result, the appeal is partly allowed.
Interlocutory applications, if any pending, shall stand closed.
SD/-
C.S.SUDHA
JUDGE
ak
