Establishing negligence in motor vehicle accidents requires clear evidence; the burden shifts to opposing parties when a police charge sheet is produced.

JUDGMENT :

C.S. SUDHA, J.

1. 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.919/2016 on the file of the Motor Accidents Claims Tribunal, Ernakulam (the Tribunal), aggrieved by the Award dated 14/11/2018. The respondents herein are the claim petitioners and respondents 1 & 2 respectively in the petition. Cross Objection No.40 of 2021 has been filed by the claim petitioners. In this appeal and the cross objection, the parties and the documents will be referred to as described in the original petition.

2. The claim petitioners are the parents and sister of the deceased. According to the claim petitioners on 04/11/2015 at about 10:30 a.m., while the deceased was riding motorcycle bearing registration No. KL-07-CC-5504 through Kanjiramattom-Puthenkavu road and when he reached the place by name Kanjiramattom, lorry bearing registration No.KL-32-C-9467 driven by the second respondent in a rash and negligent manner knocked him 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 admitting the policy, but denying negligence on the part of the second respondent/driver of the offending vehicle. The age, occupation and income were disputed. It was also contended that the amount claimed was excessive.

5. Before the Tribunal, PW1 and PW2 were examined and Exts.A1 to A23 were marked on the side of the claim petitioners. No oral or documentary evidence was adduced by the respondents.

6. The Tribunal on consideration of the oral and documentary evidence and after hearing both sides, found negligence on the part of the second respondent/driver of the offending lorry resulting in the incident and hence awarded an amount of Rs. 19,59,400/- together with interest @ 9% per annum from the date of the petition till the date of realisation along with proportionate costs. Aggrieved by the Award, the third respondent/insurer has 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.

8. Heard both sides.

9. It is submitted by the learned counsel for the third respondent/insurer that in the light of Exts.A1 FIR ; A4 final report/charge sheet and A9 scene mahazar, the Tribunal erred in relying on the interested testimony of PW2 and finding negligence on the part of the second respondent/driver. Ext.A9 scene mahazar will clearly show that the deceased had strayed into the wrong side of the road, which would make it apparent that there was no negligence on the part of the second respondent herein. On the other hand, the negligence was on the part of the deceased. As negligence has not been established by the claim petitioners, the third respondent/insurer cannot be held liable, goes the argument.

9.1. Per contra, it is submitted by the learned counsel for the claim petitioners who have filed cross objection, that Ext.A4 final report was prepared casually without any proper investigation being conducted by the police. Ext.A9 scene mahazar cannot be relied on as the person who prepared the same or the person who pointed out the scene of occurrence to the police was not examined by the third respondent/insurer. It is also pointed out that the claim petitioners had filed I.A.No.1/2025 for receiving an additional document, that is, Section 161 Cr.P.C. statement of