Kerala High Court
Abdul Majeed.A vs Shyni on 14 October, 2025
M.A.C.A.No.559 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 14TH DAY OF OCTOBER 2025 / 22ND ASWINA, 1947
MACA NO. 559 OF 2020
AGAINST THE AWARD DATED 13.06.2019 IN OP(MV)NO.2248 OF
2016 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,
KOLLAM.
APPELLANTS/CLAIMANTS:
1 ABDUL MAJEED.A.,
AGED 55 YEARS,
S/O.ABDUL KARIM, MUBEENA MANZIL, VALIYAKULANGARA,
OACHIRA, KOLLAM, PIN-690526.
2 AMINA A.S.,
AGED 22 YEARS,
D/O.SALAUDEEN, CHARUVILA VEEDU, ALAMCODE P.O.,
PERUMKULAM, THIRUVANANTHAPURAM, PIN-695102.
BY ADVS.
SRI.K.SIJU
SMT.ANJANA KANNATH
RESPONDENTS/RESPONDENTS:
1 SHYNI,
KOTHAMANGALATHU VEEDU, KILIKOLLOOR,
KOLLAM, PIN-691004.
2 M.SHAMSUDHEEN,
SHAMLA MANZIL, CHATHINAMKULAM,
CHANDANATHOPPE P.O., KOLLAM, PIN-691014.
M.A.C.A.No.559 of 2020
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3 THE BRANCH MANAGER,
M/S.ORIENTAL INSURANCE COMPANY LTD.,
THIRD PARTY CLAIM HUB, 1ST FLOOR,
ST.MARY VILLA, ULOOR, MEDICAL COLLEGE POST,
THIRUVANANTHAPURAM, PIN-695011.
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SMT.ALEXY AUGUSTINE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 14.10.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.A.C.A.No.559 of 2020
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C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A.No.559 of 2020
----------------------------------------------------
Dated this the 14th day of October 2025
JUDGMENT
This appeal under Section 173 of the Motor Vehicles Act,
1988 (the Act) has been filed by the claim petitioners in O.P.(MV)
No.2248 of 2016 on the file of the Motor Accidents Claims Tribunal,
Kollam, (the Tribunal), aggrieved by the Award dated 13/06/2019.
The respondents herein are respondents 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 wife and father of the
deceased. According to the claim petitioners, on 12/03/2016 at about
05:00 p.m., while the deceased was riding motorcycle bearing
registration No. KL2N/874 through NH-47 from north to south at
Lalaji junction, lorry bearing registration No.KL02 D6674 driven by
the second respondent in a rash and negligent manner, knocked him
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down as a result of which he sustained grievous injuries to which he
succumbed.
3. The first respondent/owner and the second
respondent/driver remained ex parte.
4. The third respondent/insurer filed written statement
denying negligence on the part of the second respondent/driver of the
offending lorry. The age, occupation and income were disputed.
5. Before the Tribunal, PW1 was examined and Exts.A1
to A7 were marked on the side of the claim petitioners. No evidence
was adduced by the respondents.
6. The Tribunal on consideration of the oral and
documentary evidence and after hearing both sides, found that there
was no negligence on the part of the second respondent/driver of the
offending lorry and hence the petition was dismissed. Aggrieved, the
claim petitioners have come up in appeal.
7. 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.
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8. Heard both sides.
9. It is submitted by the learned counsel for the claim
petitioners that the Tribunal committed a gross error in dismissing the
claim petition finding that negligence has not been established by the
claim petitioners. My attention is drawn to the pleadings in the claim
petition as well as the testimony of PW1, an alleged eyewitness. It is
quite persuasively and strenuously submitted by the learned counsel
that mere statements in the scene mahazar can never be a ground to
find negligence on the part of the deceased. Ext. A5 final report could
not have been relied on by the Tribunal as the same has been disproved
by the testimony of PW1. The Tribunal went wrong in rejecting the
testimony of PW1 on the ground that he was travelling about 30 meters
behind the vehicles involved in the accident in the case on hand and
hence it was impossible for him to have witnessed the incident. This is
an erroneous conclusion of the Tribunal which requires to be interfered
with. In support of the arguments reference is made to the dictums in
Cholamandalam MS General Insurance Company Limited v.
Saritha: 2025 (1) KHC 168; Mathew Alexander v. Muhammed
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Shafi, 2023 INSC 621 and judgment dated 06/03/2025 in MACA No.
1456/2021 (Divisional Manager, New India Assurance Company
Limited v. Santhosh).
9.1. Per contra, it is submitted by the learned counsel for
the third respondent/insurer that the Award of the Tribunal is supported
by cogent reasons and that no error or infirmity has been committed by
the Tribunal calling for an interference by this court.
10. The appellant insurance company in
Cholamandalam MS General Insurance Company Limited (Supra)
challenged the finding of negligence of the Tribunal on the ground that
the final report filed by the police coupled with the evidence of the
investigating officer would show that there was no negligence on the
2nd respondent therein, the driver of the bus. However, the cross
objectors/claim petitioners contended that the testimony of the pillion
rider in the motorcycle would show that the offending bus had
overtaken the motorcycle in great speed and had abruptly stopped the
bus on the middle of the road by applying sudden brake and thereby,
the motorcycle driven by the deceased rammed the back side of the
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bus. Therefore, the Tribunal was right in accepting the evidence of the
pillion rider and arriving at a finding against the 2nd respondent driver
of the bus. No occurrence witness had been examined by the insurance
company and the investigating officer examined was not an occurrence
witness. It was found that though the pillion rider was extensively
cross-examined, no material was brought out to discredit his testimony
regarding negligence on the part of the 2nd respondent, driver of the
offending bus. In the said background, relying on the dictum of the
Apex court in Mathew Alexander (Supra), it was held that strict proof
of an accident caused by a particular vehicle in a particular manner
need not be established by the claimants and that the claimants need
only establish their case on the touchstone of preponderance of
probabilities and that the standard of proof beyond reasonable doubt
cannot be applied while considering a petition seeking compensation
on account of death or injury in a road traffic accident. In the light of
the materials on record it was concluded that the Tribunal was justified
in finding negligence on the part of the 2nd respondent-driver and so
the appeal by the insurance company was dismissed.
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11. In judgment dated 06/03/2025 in New India
Assurance Company (Supra), the appellant/insurance company,
contended that, when the final report was before the Tribunal, which
was drawn after a thorough investigation by RW1, the Tribunal went
wrong in relying on the oral testimony of PW1. Extensive reliance was
made on the findings of RW1 in the final report, which exonerated the
driver of the KSRTC bus, and attributed negligence to the claimant,
who, according to the insurer, was responsible for the accident. On the
other hand, it was contended by the claimant that the Tribunal had
specifically found that RW1 had no authority to investigate the crime,
and that the relevant order entrusting the investigation to him had not
been produced before the Tribunal. It was further contended that if the
testimony of the eyewitness runs contrary to the findings in the charge
sheet, then, the tribunal was not bound by the findings in the final
report. This court relying on the dictums in New India Assurance Co.
Ltd. v. Pazhani Ammal [2011 (3) KLT 648]; Meera P.O. vs.
Ananda P. Naik and Others [2022 (1) KHC 591; National
Insurance Company Ltd. v. Chamundeswari [2021 (5) KLT 724];
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Rajesh C.B. v. Justin M.G [2020 (4) KHC 708]; Kolavan v. Salim
[2018 KHC 77] and Mathew Alexander (Supra) held that in the
circumstances of the case it would not be safe to rely only on the
findings of the investigating officer in the final report. The Tribunal
chose to accept the evidence of PW1, which was found 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.
Finding so, the contention of the insurance company regarding
contributory negligence on the part of the claimant was rejected and the
appeal was dismissed.
12. Now coming to the case on hand. In Ext.A1 FIS
given by the first claim petitioner, who is none other than the father of
the deceased, it is stated that his son, Majeer Khan, aged 25 years on
12/03/2016 at 17:00 hrs, while riding his motorcycle bearing
registration no.KL2/N874 through NH 47 road from north to south
near, accidentally lost control of his motorcycle and hit the right rear
tyre of the lorry which was coming from the northern side of the said
road as a result of which he sustained grievous injuries to his head to
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which he succumbed while undergoing treatment at Alappuzha
Medical College. (ആവല ത ക രൻ മകൻ 25 വയസ ളമജ ർഖ ൻ KL2/N874
)0 നമർ മമ മട ർസസക ള ൽ NH47 മ മ വടക ന ന " ൻതമക ട# ഓട ച
ൻക ണ#ൻ'ന#12.03.16 17.00 മണ ക#ല ല ജ ജ"ഗ#*ന ൽവച# ട മ മ വടമക ട#
ഓട ച വന KL02/D6674 )0 നമർ മല യ ൻട വലത വശ" പ ക ഭ ഗ" ടയ ൽ
യ ദ ശ കമ യ ന യന1ണ" ൻതറ ൻ'ന ട ച# തലക " മറ " ഗ ര തര പര ക കൾ
പറ ആലപ ഴ ൻമ കൽ മക മളജ ൽ ' ക തയ ല ര ൻക മരണൻപട
മപ യ ര ക ന എന ളത# ).
13. The relevant portion of paragraph 28 in the claim
petition reads thus:
"The accident was happened due to the callous, rash and
negligent driving of the 2nd respondent. But the
Karunagapally Police Station had registered a case for
Motor occurrence only as Crime No.883/2016. It is seen
from the FIR that the police registered the crime on the
basis of the FIS given by the 1st petitioner herein. But
actually the 1st petitioner had not made any such statement
before the police till now. Actually at the time of conduction
of inquest the police got the signature of the 1 st petitioner
herein in a blank paper and prepared it as FIS of the said
crime. The police made the case favorable to the 2 nd
respondent herein even though there is gross negligence on
his part in this accident. The 2nd respondent had driven the
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vehicle in utmost speed and tried to over taken another
vehicle and thereby caused to hit on the motorcycle of the
deceased. The police had also shifted the place of
occurrence from the original place to a place favourable to
the 2nd respondent herein. If the deceased had overtaken the
lorry as alleged by the police, there is gross negligence on
his part and there should be a case registered against him."
14. Though the first claim petitioner has taken up a case
that he had never given any statement as evidenced by Ext.A1 FIS and
that it was on a blank paper that he had affixed his signature as
demanded by the police, no evidence has been let in to substantiate the
same. The first claim petitioner did not mount the box or face the
cross-examination. Therefore, the statements in the claim petition that
it was in a blank paper that he had affixed his signature and that he had
not given a statement as evidenced by Ext.A1 FIS do not stand
substantiated.
15. Crime was registered pursuant to the FIS and the
investigation resulted in Ext.A5 final report as per which the accident is
stated to be a motor occurrence. Going by the dictum of a Division
Bench of this Court in Pazhaniammal (Supra), as a general rule it can
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safely be accepted that production of the police charge sheet is prima
facie sufficient evidence of negligence for the purpose of a claim under
Section 166 of the Act. A system cannot feed itself on a regular diet of
distrust of the police. Prima facie, charge sheet filed by a police officer
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 must be on such party to adduce oral evidence.
If oral evidence is adduced by any party in a case where charge sheet is
filed, the Tribunal should give further opportunity to others also to
adduce oral evidence and in such a case the charge sheet will pale into
insignificance, and the dispute will have to be decided on the basis of
the evidence. In all other cases, such charge sheet can be reckoned as
sufficient evidence of negligence in a claim under Section 166 of the
Act. The Bench further held that on production of such charge sheet the
shifting of burden must take place. It was further held that this would
not mean that collusive charge sheets need to be accepted. If on the
facts of a given case the Tribunal feels that the police charge sheet does
not satisfy the judicial conscience, the Tribunal can record that the
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charge sheet cannot be accepted and can call upon the parties, at any
stage, to adduce oral evidence of the accident and the alleged
negligence. In such a case, the issue of negligence must be decided on
the other evidence, ignoring the charge sheet.
16. Going by Ext.A5 final report, there was no
negligence on either the deceased or the second respondent. On the
other hand, it has been reported to be a motor occurrence. I will now
consider whether the claim petitioners through the testimony of PW1
has disproved Ext.A5 final report and proved negligence of the second
respondent-driver and whether his testimony is credible. PW1 in the
chief examination deposed that the deceased was riding his motorbike
from north to south and the offending lorry was proceeding from south
to north. The lorry tried to overtake a KSRTC bus. The lorry had
reached about the half portion of the bus at which point, the driver of
the offending lorry abruptly applied the brake, due to which the front
portion of the lorry turned towards the left, that is, to the western side
and the rear portion of the lorry towards the right side, that is, to the
eastern side. PW1 was about 30 meters to the back of both the
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aforesaid vehicles and when the lorry had nearly reached half portion
of the KSRTC bus, the bike ridden by the deceased coming from the
opposite side, that is, from the northern side, hit the right mudguard
portion of the lorry due to which he was thrown on to the road causing
grievous injuries to him to which he succumbed. In the cross
examination, PW1 deposed that the deceased was riding on the correct
side of the road. To a further question as to whether the scene of
occurrence shown in the scene mahazar is correct, he answered in the
affirmative (മഹസർനപക ര" ഉളസ"ഭവസല"ശര യ മണ (Q) ആണ#
(A). To a further question as to whether the scene of occurrence is
04.54 meters to the east of the western tar end, which also he answered
in the affirmative (പട ഞ മ tar end-ൽ ന ന" 4.54m
ക ഴക മ യമ= സല". ശര യ ണ#). He further added that the
accident occurred on the eastern side of the line in the middle of the
road.
17. It is true that mere statements in the scene mahazar
cannot be relied on for concluding negligence. But as held by a
Division Bench of this Court in Philippose Cherian v. T.A.Edward
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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 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.
18. As referred to earlier, PW1 admits that the scene of
occurrence referred to in Ext.A2 scene mahazar is correct. As per
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Ext.A2 scene mahazar, the road at the scene of occurrence lying in the
north-south direction is 10 meters wide. The deceased was riding his
bike from the north towards the south and the second respondent/driver
from south to north. The right side of the road of the second respondent
was the western side and the right side of the deceased, the eastern
side. Going by the scene mahazar, the scene of occurrence is 04.54
meters to the east of the western tar end. Therefore, it is clear that it
was the deceased who had gone to the wrong side of the road. Going
by the testimony of PW1, the offending lorry was in the process of
overtaking a KSRTC bus and it had reached near the middle portion of
the bus when the accident occurred. If that were so, the accident could
only have been to the further east of the road margin and could not
have been 04.54 meters to the east of the western road margin as stated
in the scene mahazar. PW1 has no case that the scene mahazar is
wrong. On the other hand, he also admits that the scene of occurrence
referred to in the scene mahazar, that is, Ext.A2 is correct. If that be so,
it is quite clear that it was the deceased who was on the wrong side of
the road. In such circumstances, negligence of the second respondent
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lorry driver cannot be found. As submitted by the learned counsel for
the claim petitioners I find materials lacking to find contributory
negligence also on the part of the deceased and the second respondent-
driver. That being the position, I find that the claim petitioners were
unable to prove negligence on the part of the second respondent/driver.
Hence, I am unable to agree with the quite persuasive arguments
advanced by the learned counsel for the claim petitioners and so I do
not find any infirmity committed by the Tribunal in concluding that
negligence has not been established in a claim under Section 166 of the
Act, though for different reasons. Therefore, no interference into the
Award is called for.
In the result the appeal sans merit is dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S. SUDHA
JUDGE
ak
