JUDGMENT

This appeal is submitted by the claimant in O.P.(M.V.)

No.4083/2003 on the files of the Motor Accidents Claims Tribunal, Thrissur. The said claim petition was submitted by him seeking compensation for the damages sustained to his motorcar bearing Registration No.KL9/B 9005. The said car met with an accident on 14.01.2003, when a lorry bearing Registration No.TN 27/U 1129 driven by the 2nd respondent hit against the said vehicle. Consequent to the same, the car sustained serious damages. The 1st respondent was the owner and the 3rd respondent was the insurer of the said vehicle. The claim petition was submitted in such circumstances.

2. The 3rd respondent filed a written statement admitting the policy in respect of the lorry. However, they disputed the liability on various grounds. It was also contended that the driver of the lorry was not having driving license at the time of the accident.

3. To substantiate the contentions Exts. A1 to A8 were marked from the side of the appellant and Ext.B1 was marked from the side of the respondents. After appreciating the materials, the Tribunal found that the primary responsibility was upon the driver of the lorry and the appellant had also contributed to the accident while driving the car. The extent of contributory negligence was fixed as 30% upon the appellant. The quantum of compensation was fixed as Rs.1,22,000/-. Accordingly the 3rd respondent was directed to deposit an amount of Rs.85,400/- being 70% of the said amount with interest @ 8% per annum from the date of petition till realisation. This appeal is submitted by the appellant challenging the contributory negligence attributed to appellant.

4. Heard Sri.T.C. Suresh Menon, learned counsel appearing for the appellant and Smt.Raji T. Bhaskar, learned counsel appearing for the 3rd respondent.

5. The only question that arises for consideration is whether the finding of the Tribunal attributing contributory negligence upon the appellant was correct or not. In this regard, the learned counsel for the appellant brought the attention of this Court to Ext.A1 FIR registered by the Police in connection with the accident and Ext.A2 final report submitted by them after completing the investigation thereon. As per the same, the Police found that the accident occurred due to the negligence of the driver of the lorry. The Tribunal adjudicated the question of negligence and found contributory negligence on the part of the appellant mainly placing reliance upon the spot of the accident as revealed from the scene mahazar. As far as the relevance of scene mahazar is concerned, in Jiju Kuruvila v. Kunjujamma Mohan [(2013) 9 SCC 166] the Honourable Supreme Court was pleased to hold that the spot of the accident as is discernible from the scene mahazar alone cannot be the criteria for deciding the question of negligence. This is particularly because, the crucial contributory factors of an accident such as the speed of the vehicles, traffic at the relevant time, the position of the vehicle before the accident, the climatic condition etc. may not be discernible from the scene mahazar. Besides the same,in New India Insurance Company Ltd. v. Pazhaniyammal and others [2011 (3) KLT 648] a Division Bench of this Court categorically observed that, in the absence of any contra evidence, the conclusions arrived at by the Police in the final report submitted by them, could be treated as a prima facie evidence for adjudicating the question of negligence in a proceeding under Section 166 of the Motor Vehicles Act. In this case, despite the fact that Ext.A2 final report was already on record, implicating the 2nd respondent as the accused, none of the respondents have cared to adduce any contra evidence and therefore, the only consequence that can have is that, the entire liability has to be fastened upon the 2nd respondent. Since the vehicle was validly insured with the 3rd respondent, the entire compensation has to be paid by them.

In the result, this appeal