Kerala High Court
The New India Assurance Company Limited vs K.V.Jacob(Expired) on 23 September, 2025
MACA NO. 1188 OF 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 23RD DAY OF SEPTEMBER 2025 / 1ST ASWINA, 1947
MACA NO. 1188 OF 2014
AGAINST THE AWARD DATED 24.02.2014 IN OP(MV) NO.354 OF 2007
OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR
APPELLANT/2ND RESPONDENT :-
THE NEW INDIA ASSURANCE COMPANY LIMITED
KOLLAM, REPRESENTED BY ITS MANAGER,
REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.
BY ADV SHRI.SEBASTIAN VARGHESE(K/141/2000)
RESPONDENTS/CLAIMANTS AND 1ST RESPONDENT AND ADDITIONAL 3RD
RESPONDENT :-
1 K.V.JACOB (EXPIRED)
S/O.K.O.VARGHESE, KOZHIPPURATHU VEEDU,
KARAVALOOR P.O., KARAVALOOR - 691 318.
2 M.S.KAMARUDEEN
M.S.MANZIL, NADUKKUNNU,
PATHANAPURAM, KOLLAM DISTRICT - 689 695.
*3 K.MOHANAN, (EXPIRED), S/O.KUTTAPPAN,
DIVYA COTTAGE,VALAKKODU VILLAGE,
KALAYANADU - 691 331.
**4 ADDL.R4 TO R6 ARE IMPLEADED :-
INDIRA, W/O LATE MOHANAN, DIVYA COTTAGE,
VALAKKODE VILLAGE, KALAYANADU P.O.,
KOLLAM DISTRICT.
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5 KIRAN, S/O LATE MOHANAN,
DIVYA COTTAGE, VALAKKODE VILLAGE,
KALAYANADU P.O., KOLLAM DISTRICT.
*6 DIVYA, D/O LATE MOHANAN, DIVYA COTTAGE, VALAKKODE
VILLAGE, KALAYANADU P.O., KOLLAM DISTRICT.
*THE NAME AND ADDRESS OF THE RESPONDENT NO.6 IN
I.A.NO.1 OF 2022 IS CORRECTED AS PER ORDER DATED
06.12.2022 IN I.A.NO.3/2022 IN MACA NO.1188/2014.
**ADDL.R4 TO R6 ARE IMPLEADED AS PER ORDER DATED
23.09.2025 IN I.A.NO.2 OF 2015.
7 OMANA JACOB W/O LATE K.V.JACOB, KOZHIPPURATHU
VEEDU, KARAVALOOR P.O.,KARAVALOOR,
KOLLAM DISTRICT,PIN-691333.
8 FIBA THANKAM JACOB, D/O LATE K.V.JACOB,
KOZHIPPURATHU VEEDU, KARAVALOOR P.O.,
KARAVALOOR, KOLLAM DISTRICT,PIN-691333.
BY ADVS.
SHRI.K.S.MANU (PUNUKKONNOOR)
SHRI.A.SANIL KUMAR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 12.09.2025, THE COURT ON 23.09.2025 DELIVERED
THE FOLLOWING:
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JUDGMENT
This appeal is filed by the 2nd respondent/insurance
company in O.P (MV) No.354 of 2007 on the file of the Motor
Accidents Claims Tribunal, Punalur. The respondents herein are
the claimant and respondents 1 and 3 before the tribunal.
2. According to the claimant, on 07.08.2006 at about 02.30
pm, while the petitioner was walking through the public road
from west to east, a Kinetic Honda bearing registration No.KL-
2B/1983 ridden by the 3rd respondent in a rash and negligent
manner hit against the petitioner. As a result, the petitioner
sustained injuries. The appellant approached the tribunal
claiming a total compensation of ₹2,00,000/-.
3. The first, second and additional third respondents were
the owner, insurer and rider of the offending motorcycle. The
second respondent insurer filed a written statement admitting
the insurance policy, but disputing liability. Before the tribunal,
Pws 1 and 2 and RW1 were examined. Exts.A1 to A13 and
Exts.B1 and B2 were marked. The tribunal, after analysing the
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pleadings and materials on record, awarded a sum of ₹1,42,490/-
as compensation under different heads with interest @7.5% per
annum from the date of petition till realization with
proportionate costs against the second respondent being the
insurer of the offending vehicle. Challenging the award passed
by the tribunal fixing the liability to pay compensation, the
Insurance Company has come up in appeal.
4. Heard the learned standing counsel for the appellant
and the learned counsel for the respondent.
5. The learned standing counsel appearing for the
insurance company submitted that the claimant was not a
pedestrian as alleged but was a pillion rider in the two wheeler
which was insured with the appellant herein. The policy issued
was an Act-only policy for which the pillion rider is not entitled
to claim any amount from the insurer. It was also submitted that
though the accident occurred on 07.08.2006, the F.I.R. and F.I.S.
were recorded only on 22.08.2006. It was further argued that on
the basis of Ext.B1 charge sheet dated 11.09.2006, which is the
conclusive evidence the claimant was a pillion rider and not a
pedestrian. Even though the claim petition was filed on
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05.06.2007, whereas the charge sheet was drawn on 11.09.2006,
it was at the instance of the insurer that the charge sheet was
produced, as the claimant had failed to produce it along with the
other documents. The non-production of the charge sheet was
intentional, aimed at claiming compensation from the insurer by
falsely alleging that the claimant was a pedestrian. The learned
standing counsel further submitted that the policy being an Act-
only policy and the claimant who was a pillion rider is not
entitled to get any compensation amount from the insurer and
sought for exoneration of the company from the liability. It is
further submitted that PW2, an independent witness, was not
included as a witness in the charge sheet.
6. Per Contra, the learned counsel for the claimant
however submitted that the insurer did not adduce any evidence
other than production of charge sheet. The claimant mounted the
box and was examined as PW1 and an independent witness who
was examined as PW2, deposed that he witnessed the accident,
stating that the claimant was a pedestrian and that the accident
occurred due to the rash and negligent riding of the scooter by
the additional 3rd respondent. It is further submitted that, since
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the claimant was a pedestrian, the tribunal rightly directed the
insurance company to pay the compensation, even though the
policy was an Act-only policy.
7. I have considered the rival contentions on both sides.
According to the insurer, the injured/claimant was a pillion rider
and not a pedestrian. In order to support the said contention, the
insurer relied on Ext.B1 charge sheet which was marked through
RW1, who was a police constable. According to the claimant, he
was a pedestrian and not a pillion rider. According to him, while
he was walking along the Kallar-Nellippalli public road from
west to east, he was hit by a Kinetic Honda ridden by the
additional 3rd respondent, sustaining serious injuries. The
claimant relied on Exts.A1 to A13 and also the evidence of PWs 1
and 2. The learned counsel for the claimant further submitted
that due to the injuries, the claimant had sustained 20%
disability and he is still under treatment. There is no valid and
proper reason forthcoming from the claimant for the non-
production of the charge sheet. It is also pertinent to note that,
though the accident occurred on 07.08.2006, the FIS and FIR
were registered only on 22.08.2006, i.e., with a delay of 15 days.
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8. In Ext.A5, wound certificate, the history and alleged
cause of injury are merely stated as being from a motor accident.
Further in the wound certificate there is an endorsement that
the claimant had absconded from the hospital on 07.08.2006.
Thereafter, the documents produced pertain only to treatment
undergone after a period of one month and the bills produced as
Ext.A11 series also show that the next bill after 07.08.2006 is
that of 24.09.2006.
9. According to the claimant, he was walking through the
road from west to east whereas the two wheeler was coming
from east to west and hit the left leg and body of the claimant
and thus he sustained injuries. The charge sheet was drawn by
the officer on 11.09.2006. The claim petition was filed on
05.06.2007. However, though the claimant has produced the FIS,
FIR, Scene Mahazar, AMVI report, and wound certificate, the
charge sheet has not been produced.
10. The insurer after appearance has produced the charge
sheet as Ext.B1 which was marked through the officer. In order
to disprove the charge sheet the claimant adduced oral evidence
and a witness was also examined. This court has to decide on the
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basis of the evidence adduced and the documents produced in
this case. Ext.B2 is the copy of the policy wherein it is clear that
the policy was an Act-only policy. Though the charge sheet was
produced, the insurer admittedly did not examine the
investigating officer; however, it is clearly recorded therein that
the claimant was a pillion rider. The charge sheet can be treated
as conclusive evidence as held by the Apex Court in New India
Assurance Co.Ltd. v. Pazhaniammal and others [2011 (3)
KHC 595]. Once a charge sheet is drawn, the FIS and FIR lose
their relevance. The failure of the claimant to produce the
charge sheet at the time of filing the claim petition, raises
serious doubts regarding the veracity of the narration of the
accident put forth by the claimant. Moreover, the FIS was given
only on 22.08.2006 whereas, the accident was on 07.08.2006,
which also raises doubt regarding the narration of the accident.
PW2 deposed that he had witnessed the accident, however, his
name does not appear in the charge sheet as a witness. As a
general rule, the charge sheet can be safely relied upon, since it
constitutes prima facie sufficient evidence of negligence for the
purpose of a claim under Section 166 of the Motor Vehicles Act.
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The charge sheet filed by the police officer after investigation
can be accepted as evidence of negligence if the other evidence
adduced is not acceptable.
11. The tribunal has not recorded any reason for
disbelieving the charge sheet produced by the insurer. The
tribunal has merely observed that the investigating officer was
not examined and that no other witness was examined to
establish that the accident did not occur as alleged by the
petitioner. The conduct of the claimant in the present case raises
suspicion about the authenticity of the alleged accident. The
claimant's failure to produce the charge sheet also is a crucial
factor warranting skepticism about his story regarding the
accident. In the wound certificate also, there is no narration of
the accident. The FIS and FIR was given only after 15 days. All
these factors lead to the conclusion that, as contended by the
insurer, the claimant was not a pedestrian but a pillion rider.
Therefore, I do not find any reason not to accept the charge
sheet produced by the insurer as Ext.B1. Ext.B2 policy was an
Act-only policy. Since the claimant was a pillion rider on the
vehicle insured with the appellant, the finding of the tribunal
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directing the appellant/insurer to pay compensation is liable to
be set aside.
Accordingly, this appeal is allowed. The finding of the
tribunal directing the insurer to pay the compensation amount is
hereby set aside.
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
SMA
