Kerala High Court
The Divisional Manager vs Santhosh on 6 March, 2025
MACA No.1456 of 2021 1 2025:KER:18749
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 6TH DAY OF MARCH 2025 / 15TH PHALGUNA, 1946
MACA NO. 1456 OF 2021
AGAINST THE AWARD DATED 29.07.2020 IN O.P.(M.V.) NO.371 OF
2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM
APPELLANT/3RD RESPONDENT :
THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE COMPANY LIMITED,
BEACH ROAD, KOLLAM, PIN-691 001,
REPRESENTED BY ITS ADMINISTRATIVE OFFICER,
REGIONAL OFFICE, ERNAKULAM, PIN-682 011
BY ADVS.
LAL K.JOSEPH
T.A.LUXY
SURESH SUKUMAR
ANZIL SALIM
CHACKO MATHEWS K.
RESPONDENTS/PETITIONERS AND RESPONDENTS 1 & 2:
1 SANTHOSH
AGED 41 YEARS
S/O. JOSEPH, LIJO BHAVAN,
MEKKAD, PANMANA, CHAVARA,
KOLLAM, PIN-691583
2 THE MANAGING DIRECTOR
K.S.R.T.C, THIRUVANANTHAPURAM,
PIN-695 023
3 SANIL KUMAR,
S/O. SUDHAKARAN, PANDAKASSALAYIL,
CHAVARA,
KOLLAM, PIN-691 583
MACA No.1456 of 2021 2 2025:KER:18749
BY ADVS.
PRATHEESH.P
ALEX ANTONY SEBASTIAN P.A.
ANJANA KANNATH
SAFNA P.S.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 14.02.2025, THE COURT ON 6.3.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is preferred by the insurance company aggrieved
by the award passed by the Motor Accidents Claims Tribunal,
Kollam in O.P.(M.V.) No.371 of 2016.
2. The brief facts for the disposal of the appeal are as follows:
On 03.7.2013, while the 1st respondent /claimant was
travelling on a motorcycle bearing registration No.KL-7/BB-5640
through Kollam- Alappuzha NH 47 in the North-South direction in
front of Titanium Sponge Factory, Chavara, the offending KSRTC
bus bearing registration No.KL-15-6459 driven in a rash and
negligent manner from South to North that is the opposite
direction hit against the motor cycle, causing injuries to the
claimant. The insurance company appeared and filed a written
statement contending that the negligence alleged against the 2 nd
respondent in the claim petition is not correct. The claim for
compensation under various heads was also questioned. On behalf
of the claimant, Exts.A1 to A15 documents were produced before
the tribunal. On behalf of the insurance company, Ext.B1, the case
records relating to the Crime was produced. The claimant
examined the eyewitness who saw the accident as PW1, while the
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insurance company examined RW1, the Investigating Officer
through whom the CD File, Ext.X1 was marked. The tribunal, on
appreciation of the evidence, found that the report filed by the
investigating officer runs contrary to the evidence of PW1, the
eyewitness, and therefore discarded the Final Report and
proceeded with the testimony of PW1 and fastened the liability on
the shoulders of the insurance company and thus the present
appeal.
3. Heard Sri. Lal K. Joseph, the learned counsel appearing for
the appellant insurance company and Ms. Safna P.S, the learned
counsel appearing for the claimant.
4. Sri. Lal K. Joseph, the learned counsel appearing for the
appellant/insurance company, contended that, when the Final
Report was before the tribunal, which was drawn after the
thorough investigation by RW1, the tribunal went wrong in relying
on the oral testimony of PW1. He placed extensive reliance on the
findings of RW1 in the final report, which exonerates the driver of
the KSRTC bus, and attributing negligence to the claimant, which,
according to him was the prime reason for the accident.
5. On the other hand, the learned counsel appearing for the
claimant pointed out that the tribunal had specifically found in the
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impugned award that RW1 had no authority to investigate the
crime, and the relevant order entrusting the investigation to him
was not produced before the tribunal. It is further contended that
if the testimony of the eyewitness runs contrary to the findings in
the charge sheet, then, the tribunal is not bound by the findings in
the final report. Since the tribunal has correctly appreciated the
facts, the learned counsel appearing for the claimant prays that
interference in the appeal may be declined.
6. I have considered the rival submissions raised across the
Bar .
7. The power of the tribunal in appreciating the oral
testimony of the independent witnesses is no longer res integra. In
New India Assurance Co. Ltd. Vs. Pazhani Ammal [2011 (3) KLT
648], this Court held that the final report is only a piece of
evidence, which is always rebuttable before the tribunal. Once the
final report is produced, the claimants are always at liberty to
disprove the contents of the final report by adducing evidence.
8. In Meera P.O. and Another vs. Ananda P. Naik and Others
[2022 (1) KHC 591], the Single Bench of this Court held that when
independent witnesses were examined before the tribunal, the
tribunal could not rely on the final report for fastening contributory
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negligence on the side of the claimant.
9. In National Insurance Company Ltd. v. Chamundeswari
and Others [2021 (5) KLT 724], the Supreme Court held that if any
evidence before the tribunal runs contrary to the contents in the
First Information Report, the evidence which is recorded before
the tribunal has to be given weightage over the contents of the
First Information Report.
10. In Rajesh C.B. v. Justin M.G and Others [2020 (4) KHC
708], a Single Bench of this Court held that once the final report is
submitted under Section 173(2) of the erstwhile Code of Criminal
Procedure, 1973, the same must satisfy the requirement of sub-
section (3) to (7) to Section 173 which includes submission of all
documents or relevant extract thereof on which the prosecution
proposed to rely besides the statement recorded under Section 161
of the Cr.P.C. of the persons whom the prosecution propose to
examine as witnesses. The requirement under sub-sections (3) to
(7) has to be complied with submitting additional document or
relevant extract thereof on which the prosecution proposed to rely.
The conclusion made by the investigating officer under the final
report alone cannot translate into the legal evidence. The materials
collected by the investigating officer during the course of the
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investigation may sometimes include primary evidence admissible
under Section 64 of the Evidence Act or secondary evidence under
Section 65A and B of the Evidence Act. A document which is
otherwise admissible in evidence independently by its nature will
not lose its character as legal evidence merely because the same
was made part of the final report. It was further held that though
the final report as such is not a legal evidence, the materials which
were collected during the course of investigation, when found to
be admissible independently apart from the Final Report, can be
acted upon.
11. A Division Bench of this Court in Kolavan and Others v.
Salim and Others [2018 KHC 77] held that once a charge sheet is
filed, the tribunal will not be justified in finding negligence
contrary to the findings in the charge sheet merely relying on the
scene mahazar prepared in the case in the absence of any evidence
against the findings in the charge sheet. If there is any suspicion
with regard to the charge filed by the police after completing the
investigation, the party should be afforded an opportunity to
adduce oral evidence of the accident and the alleged negligence,
and in such case issue of negligence must be decided on other
evidence ignoring the charge sheet.
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12. In Mathew Alexander v. Mohammed Shafi [2023 (4) KLT
492] the apex court held that insofar as a claim petition under
Section 166 of the Motor Vehicles Act is concerned, it has to be
considered on the basis of preponderance of possibilities and not
on the basis of proof beyond reasonable doubt. It should be left to
the parties in the claim petitions to let in their respective evidence,
and the burden is on them to prove the negligence on the part of
the driver. The proof of negligence on the part of the driver has to
be on the touchstone of preponderance of probabilities and should
be based on independent evidence before the tribunal.
13. The above-stated being the principle of law governing the
procedure to determine a case of contributory negligence in a
claim petition when put against the claimant before the Motor
Accidents Claims Tribunal, it will not be safe to rely on the findings
of the investigating officer in the final report alone. No doubt, the
appellant had examined the investigating officer, and the report
was marked through him. But it must be seen that the claimant had
a specific case regarding the authority of RW1 to investigate the
crime. Though this issue was specifically raised, the investigating
officer failed miserably to produce his authority before the tribunal
nor mentioned the same in the final report. As regards the
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contention of the learned counsel for the insurance company that
the claimant did not examine any witnesses whose statements were
recorded in the Scene Mahazar which is vital to this case, this
Court cannot agree with the aforesaid contention because it is up
to the claimant to decide which is the best evidence to be let in, in
order to prove his case. When the oral testimony of PW1 was
against the testimony of RW1, the tribunal chose to accept the
evidence of PW1, which is more reliable, especially in the light of
the fact that the insurance company failed to substantiate that RW1
had the authority to investigate the crime. Moreover, in the light of
the categoric pronouncement of law by this Court in Rajesh
(Supra), as regards the evidentiary value of the charge sheet filed
under Section 173 of the Cr.P.C., 1973, this Court is of the
considered view that when the tribunal has chosen to accept the
evidence of PW1, the eye witness and nothing has been brought
out to discredit the oral testimony of PW1, the finding rendered by
the tribunal rejecting the contention of the insurance company as
regards the contributory negligence on the part of the claimant
cannot be found fault with. When the testimony of PW1 is fitted
against RW1, this Court also finds that the oral testimony of PW1
is more reliable than that of the evidence of RW1.
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14. As an upshot of these discussions, the necessary corollary
is that the finding of the tribunal that there is no negligence on the
part of the claimant cannot be found fault with. Therefore, this
Court finds no illegality or jurisdictional infirmity in the findings of
the tribunal. Hence, the appeal lacks merit, and the same is
dismissed accordingly.
No order as to costs.
Sd/-
EASWARAN S.
JUDGE
NS
