JUDGMENT S. Talapatra, J. 1. Heard Mr. S.K. Barkataki, learned counsel appearing for the appellants. Also heard Mr. A. Ahmed, learned counsel for the respondent No. 1, the United India Insurance Company Ltd. as well as Mr. U. Datta, learned counsel for the respondent No. 4, the National Insurance Company Ltd. By this appeal filed under Section 173 of the Motor Vehicles Act, 1988 the judgment and award dated 14.06.2005 as passed by the learned Member, Motor Accident Claims Tribunal, Kamrup, Guwahati, in MAC Case No. 1699/2003, has been assailed on the solitary ground that whether contributory liability of the accident as has been shifted on the deceased is sustainable and if not, what consequence would set in. 2. The accident in question took place on 18.03.2003 at midnight about 0200 hours and according to the claimants one Tata Mobile Vehicle bearing Registration No. AS-25/C-8700, insured with the respondent No. 1, being driven in rash and negligent manner, knocked down the Scooter bearing Registration No. AMU-6061, coming from the Ganeshguri side. As a result, the scooterist, namely Devki Nandan Sharma and the pillion rider, namely Sanjay Sharma received serious injuries and ultimately the scooterist, Devki Nandan Sharma succumbed to the injuries in the hospital. 3. The appellant No. 1, the wife of the deceased, deposing as PW. 1, stated that in the following morning, she came to know about the accident. She stated that her husband was aged about 50 years at the time of the accident and he was a business man and his monthly income was Rs. 12,000/-. The opposite party Nos. 3 and 4 cross-examined her but they did not project any issue relating to contributory negligence. 4. PW. 2 namely, Sri Bhakti Ram Kakati, a Sub-Inspector of Police, conducted the investigation into the said accident on the basis of a G.D. Entry No. 573 dated 18.03.2003. He stated that he visited the place of occurrence and ascertained that the accident occurred due to rash and negligent driving of the said Tata Mobile Vehicle. The ejahar was lodged against the driver of the Tata Mobile Vehicle and on the basis of that the accident information report was also submitted in the Motor Accident Claims Tribunal, Guwahati. 5. He stated that he visited the place of occurrence and ascertained that the accident occurred due to rash and negligent driving of the said Tata Mobile Vehicle. The ejahar was lodged against the driver of the Tata Mobile Vehicle and on the basis of that the accident information report was also submitted in the Motor Accident Claims Tribunal, Guwahati. 5. In the written statement as well as in the written argument, the respondent No. 1, United India Insurance Company Ltd. raised however the plea of contributory negligence but they did not place any evidence in support of their contentions. 6. The learned Tribunal while discussing over the issue of contributory negligence, held: ....it is difficult to come to the finding that only the driver of the Tata Mobile was responsible for the accident. The evidence of the PW. 2 (the Investigating Officer) was discarded by holding that he is not an eye witness to the occurrence and it is not possible for him to say how the accident took place. He ascertained from others regarding the accident, but those persons were not examined by the claimant. What he stated in the Court as Investigating Officer is hearsay evidence and is not admissible. He simply found the Tata Mobile and the scooter in the place of occurrence and also found the injureds. His evidence would not prove that the driver of the Tata Mobile was solely responsible for the accident. In the cross-examination, he admitted that chargesheet has not been filed the case. Claimant produced the accident information report, Ex.1, Certified copy of the GD. Entry, Ex.2, Certified copy of the FIR, Ex.3 during the trial. In the FIR, Ex.3, PW.2 mentioned that the Tata Mobile was coming from the side of Khanapara at a high speed in a rash and negligent manner and knocked the scooter near the divider in front of the ASTC Bus Stand. In the FIR, he has involved the fault to the driver of the Tata Mobile. In the FIR he has not divulged the name of the persons from whom he ascertained these facts. 7. Learned counsel appearing for the appellant placed reliance on a case as rendered by the Apex Court in Usha Rajkhowa & Ors. Vs. In the FIR, he has involved the fault to the driver of the Tata Mobile. In the FIR he has not divulged the name of the persons from whom he ascertained these facts. 7. Learned counsel appearing for the appellant placed reliance on a case as rendered by the Apex Court in Usha Rajkhowa & Ors. Vs. M/s Paramount Industries & Ors., as reported in AIR 2009 SC 1951 , where the Apex Court held that the question of contributory negligence on the part of the driver in case of collision was considered by the Apex Court in Pramod Kumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak & Ors., as reported in 2002 (6) SCC 455 . That was also a case of collision in between a Car and a Truck. The Apex Court in para-8 of Pramod Kumar Rasikbhai Jhaveri(supra) held: The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as 'negligence'. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence", it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong. The Apex Court further relied an observation of the High Court of Australia in Astley Vs. Austrust Ltd., as reported in 1999 (73) ALRJ 403 as follows : A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases, the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property. The Apex Court thereafter enunciated and indicated how to assess the evidence where the point of contributory negligence is asserted by one of the parties as follows: Keeping these principles in mind, we find that there was absolutely no evidence to suggest that there was any failure on the part of the Car driver to take any particular care or that he had breached his duty in any manner. Such breach on his part had to be proved by Insurance Company as it was its burden and for that, the Punchanama of the spot, showing tyre marks caused by brakes, the Panchanama of the damaged car and the truck could have been brought on record. The Insurance Company has obviously failed to discharge its burden. We, therefore, respectfully follow the above mentioned judgment. 8. Mr. A. Ahmed, learned counsel appearing for the respondent No. 3 stoutly refuted by saying that the principles of law as referred has no manner of application in the circumstances of this case and submitted that initially the burden would lie on the claimants to discharge that there was no negligence on the part of the deceased. In support of his contention, Mr. Ahmed relied on a few decisions of the Apex Court and this Court, namely, (1) Bijoy Kumar Dugar Vs. In support of his contention, Mr. Ahmed relied on a few decisions of the Apex Court and this Court, namely, (1) Bijoy Kumar Dugar Vs. Bidya Dhar Dutta & Ors., as reported in (2006) 3 SCC 242 , (2) Raj Rani & Ors. Vs. Oriental Insurance Company Ltd. & Ors., as reported in (2009) 13 SCC 654 , and a decision of this Court in (3) Purnanarayan Sinha Vs. Election Commission of India & Ors., as reported in 2001 (2) T.A.C. 122 (Gau.). 9. In the Apex Court decisions, the fact and circumstances are quite distinguishable and distinctly separate from the fact and circumstances of the present case. In Bijoy Kumar Dugar(supra) there was a head-on collision but in the present case how the accident took place, it revealed after the investigation as carried forward by the PW. 2. From the PW. 1's statement or from the FIR or from the accident information report, it appears that the Tata Mobile Vehicle knocked down the Scooter. These are not hearsay evidence, but the materials which established a prima facie case against the driver. Unless those are rebutted, any court can safely presume them as truthful in the inquiry as contemplated under Section 168, M.V. Act, 1988. 10. In Raj Rani (supra), the vehicle of the deceased dashed against a stationary truck which allegedly had not put on the lights. In that case, the Apex Court held that the negligence was also of the deceased, who was driving the vehicle not seeing the truck by its head-lights. The aforesaid two decisions of the Apex Court cannot be compared with the fact situation of the present case. 11. Mr. Ahmed, learned counsel for the respondent No. 1 though placed reliance on a decision of this Court in Purnanarayan Sinha(supra), it would not support his case. In paragraph-5 of Purnanarayan Sinha (supra), this court has categorically held in regard to the onus of proving the contributory negligence. Profitably, para-5 of Purnanarayan Sinha (supra) is extracted hereunder: 5. The basic principles of contributory negligence in the field of accident under the Motor Vehicles Act is that when the defendants proves that the plaintiff has failed to take precautions against the principle danger and that those precaution, if taken, would have been effective to protect against the danger which occurred. Salmond in his book has given a classic example regarding the motorists. Salmond in his book has given a classic example regarding the motorists. That is quoted below : A motorist who drives straight across a light-controlled crossing against the red light and knocks down a pedestrian who has begun to cross in reliance on the lights but without looking over his right shoulder can not be heard to say that the pedestrian is thereby guilty of contributory negligence as against him, though such conduct on the part of the pedestrian might attract that description if he had been knocked down by a motorist lawfully turning left with the green light in his favour. 12. In view of those judgments, let us now scrutinise the finding of the learned Tribunal so far it relates to the finding on the contributory negligence. The learned Tribunal has negated the evidence of PW. 2 as the hearsay evidence. It did not consider that the Investigating Officer of that case made his statement on the basis of the materials collected during the investigation and the chargesheet as submitted on culmination of the investigation. What he stated is on the basis of his investigation into the accident in question. As such his evidence cannot be discarded as the 'hearsay evidence'. The PW.2 never claimed that he witnessed the accident or his statement is based on one individual witness's statement. As such the finding on the contributory negligence cannot be allowed to stay. 13. Moreover, while conducting the inquiry into a claim under Section 166 of the M.V. Act, the Tribunal is not expected to search for proof or evidence beyond reasonable doubt, rather it is preponderance of probability, what the tool is, for assessment of the evidence. The Tribunal can arrive at its finding on the prima facie materials, such as the First Information Report to presume existence of the certain facts, in absence of other evidence which might debase such presumption. In view of this, the finding that has been returned by the learned Motor Accident Claims Tribunal on the contributory negligence is interfered with and set aside. 14. It is apparent that the respondent No. 1 did not adduce any evidence to substantiate their plea that the accident occurred for the contributory negligence. In view of this, the finding that has been returned by the learned Motor Accident Claims Tribunal on the contributory negligence is interfered with and set aside. 14. It is apparent that the respondent No. 1 did not adduce any evidence to substantiate their plea that the accident occurred for the contributory negligence. The learned Tribunal ought to have held that since the Insurance Company which raised the plea of contributory negligence, failed to discharge their burden of proof, the finding should favour the contention of the claimants. 15. Since the finding of contributory negligence has been interfered with and set aside, the direction and the finding of liability are required to be modified. The entire amount of compensation as assessed by the Tribunal to the extent of Rs. 4,47,000/-, has to be paid by the respondent No. 1. 50% of the award since has been stated to have been paid, the respondent No. 1 shall pay the remaining sum of the award within a period of 2(two) months from today in the Tribunal with interest @ 6% per annum from the date of the filing of the claim petition till the payment is made. 16. With this observation, this appeal stands allowed. In the facts and circumstances of the case, there shall be no order as to costs. Return the LCRs forthwith. Appeal allowed