IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 MACA.No. 1368 of 2011(C) ----------------------- OPMV.2800/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT : 3RD RESPONDENT -------------- UNITED INDIA INSURANCE COMPANY LTD. THRISSUR NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, 'SHARANYA',HOSPITAL ROAD,KOCHI-11 BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT : PETITIONER --------------- JOSE P.C.,S/O.CHACKO, PALAKKATTIL HOUSE,9ERUMATHANANTH HOUSE) JILLIPARA P.O.,ATTAPADI, PALAKKAD DISTRICT-678001 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.1368 of 2011-C ***************************** Dated this the 20th day of September, 2011 JUDGMENT BASANT, J. Insurance company is the appellant. Claimant had staked claim for compensation for the personal injuries suffered by him in an accident which took place on 17.01.2003. He was the pillion rider in a motor cycle. There was an accident involving the insured vehicle and the said motor cycle. According to the claimant, the accident occurred on account of the rashness and negligence of the driver of the insured vehicle. The insured vehicle belongs to the Forest Department. A crime was registered on the basis of Ext.A1 F.I.R. That F.I.R was registered on the strength of the version given by the claimant/injured. The police in the course of investigation prepared Ext.A3 scene mahazar and filed Ext.A5 final report indicting the rider of the motorcycle as the person culpably responsible for the accident. The claimant did not accept this version of the police. He took the stand that the police had succumbed to the influence which the forest officials wielded with the police. He claimed compensation against the driver, owner and insurer of the M.A.C.A No.1368 of 2011-C 2 insured vehicle/jeep. In support of his claim for compensation, the claimant examined himself as PW1 and a witness as PW2. According to PWs 1 and 2, the motorcyclist was proceeding from east towards west. A jeep driven by PW2 was proceeding from west towards east. Behind that the insured vehicle was being driven. According to PWs 1 and 2, there was a rash attempt on the part of the driver of the insured vehicle to overtake the vehicle driven by PW2. In the course of that attempt, the jeep hit against the motor cycle and caused injuries to the claimant/PW1. 2. The respondents before the Tribunal did not adduce any evidence except Ext.B1, copy of the policy. The Tribunal on an anxious evaluation of the oral evidence of PWs 1 and 2 and in the light of the other documents made available came to the conclusion that the oral evidence of PWs 1 and 2 duly corroborated by Ext.A1 F.I.R can be accepted and acted upon. The Tribunal did not choose to discard the oral evidence of PWs 1 and 2 and Ext.A1 merely for the reason that the police after investigation had filed Ext.A5 charge sheet raising allegations of culpable negligence against the rider of the motor cycle. In this view of the matter, the Tribunal came to the conclusion that there was no non joinder of necessary parties. The Tribunal M.A.C.A No.1368 of 2011-C 3 accepting the evidence of PWs 1 and 2 came to the conclusion that the driver of the insured vehicle was negligent and such negligence was the cause of the accident. The compensation was quantified at Rs.1,08,100/-. 3. The appellant/insurance company claims to be aggrieved by the impugned award. Called upon to explain the nature of the challenge, the learned counsel for the appellant insurance company only argues that the Tribunal had gone grossly wrong in choosing to accept and act upon the oral evidence of PWs 1 and 2. The Tribunal should not have discarded Ext.A3 scene mahazar and Ext.A5 final report filed by the police after due investigation. The location of the spot of impact in Ext.A3 scene mahazar must have eloquently conveyed to the Tribunal that the accident did not take place on account of any rashness or negligence on the part of the driver of the insured vehicle, contends the learned counsel for the appellant. 4. We have been taken through the entire materials available in this case. The short question is whether the Tribunal has committed any error in accepting and acting upon the oral evidence of PWs 1 and 2 which appear to be supported eminently by the contents of Ext.A1. Of course, the contents of M.A.C.A No.1368 of 2011-C 4 Ext.A3 scene mahazar and Ext.A5 charge sheet do not support the version of PWs 1 and 2. 5. We must alertly remind ourselves that we are called upon to invoke and exercise our appellate jurisdiction. The Tribunal had the advantage of seeing the performance of the witnesses in the witness stand. The version of PW1 and PW2 support each other and their version is supported by the first version before the police in Ext.A1. Exts.A3 and A5 have been produced by the appellant/claimant. They are produced only to support the claimant's assertion that the police were won over by the forest officials and the police have hence filed an incorrect final report/charge sheet Ext.A5 against the rider of the motor cycle. Exts.A3 and A5 are not strictly proved. The very specific assertion of PWs 1 and 2 reveals that the accident took place on the southern side of the tarred road and not at the spot of occurrence marked in Ext.A3. In these circumstances, we are of opinion that the attempt to rely on Exts.A3 and A5 cannot now succeed. In the absence of proper proof of Exts.A3 and A5, the contents of Exts.A3 and A5 which are not proved and which are in conflict with the oral evidence tendered by PWs 1 and 2 (supported by Ext.A1) cannot certainly clinch the issue. M.A.C.A No.1368 of 2011-C 5 6. Relevance of final report filed by the police had been considered by a Division Bench of this Court in New India Assurance Co.Ltd. V. Pazhaniammal [2011 (3) KLT 648] . It has been repeatedly held that the Tribunals cannot be prisoners of the conclusion reached by police officials in the course of their investigation. In this case evidently the claimant did not accept the conclusion of the investigating officer in Ext.A5 charge sheet. He hence chose to adduce oral evidence about the cause of the accident. The oral evidence of PWs 1 and 2, we repeat, is supported by the contents of the contemporaneous Ext.A1 F.I.R. Significantly no contra evidence is adduced. Even the contents of Exts.A3 and A5 are not strictly proved. The mere fact that the claimant in his attempt to show that the police had not conducted a proper investigation, had produced Exts.A3 and A5 cannot entitle the appellant/insurance company to claim absolution from their responsibility to properly rebut the evidence tendered by PWs 1 and 2. The mere production of Exts.A3 and A5 by the claimant was not sufficient for the Tribunal to discard the oral evidence of PWs 1 and 2, which is properly supported by Ext.A1. 7. To sum up, we do not find any reason to invoke our M.A.C.A No.1368 of 2011-C 6 appellate jurisdiction under Section 173 of the Motor Vehicles Act to interfere with the finding of fact regarding responsibility for the accident recorded by the Tribunal which had opportunity to see PWs 1 and 2 perform in the witness stand before it. The finding on the question of negligence does not therefore warrant interference. 8. No other contentions are raised. We are satisfied that this appeal deserves to be dismissed in limine. This appeal is, in these circumstances, dismissed in limine. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/