JUDGMENT : (Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act seeking to set aside the decree and judgment passed in M.A.C.T.O.P.No.95 of 2016, dated 23.11.2018, on the file of the Motor Accidents Claims Tribunal, 2nd Additional District Court, Salem.) (The case has been heard through video conference) 1. This appeal has been filed by the appellant Insurance Company questioning its liability to pay compensation under the impugned Award, dated 23.11.2018, passed by the Motor Accidents Claims Tribunal, 2nd Additional District Court, Salem on the following grounds: (a) According to the appellant insurance company, the bus insured with them, bearing Registration No.TN-30-AJ-4466, was never involved in the accident which resulted in the death of M.Ganesan on 23.09.2015 and therefore, the Tribunal has erroneously directed the appellant to pay the compensation to the dependents of the deceased viz., R1 to R5 herein. (b) The FIR registered under Crime No.799 of 2015, against the driver of the insured bus was also closed as mistake of fact. (c) Mr.Anbuselvan, the alleged informant to Mr.Karuppannan, the brother of the deceased, about the accident was also not examined as a witness before the Tribunal. (d) The Tribunal failed to consider the evidence of R.W.2, who is the owner-cum-driver of the lorry bearing Registration No.TN-25-AY-0999, which was proceeding in front of the bus bearing Registration No.TN-30-AJ-4466 insured with the appellant, who had deposed that he had witnessed one person lying unconscious on the road along with a motorcycle and the passengers from the bus insured with the appellant, which came from behind overtook and stopped the lorry bearing Registration No.TN-25-AY-0999 and the passengers after getting down from the bus accused the lorry driver and handed him over to the nearby check post. 2. Heard Ms.N.B.Sureka, learned counsel appearing for the appellant and Mr.J.Ramakrishnan, learned counsel appearing for the respondents 1 to 5/claimants. 3. The learned counsel appearing for the appellant, drew the attention of this Court to the counter statement filed by the appellant insurance company before the Tribunal and would submit that a categorical stand has been taken by the appellant, as seen from their pleadings, that the bus insured with the appellant was never involved in the accident, which resulted in the death of M.Ganesan on 23.09.2015. 4. 4. The learned counsel then drew the attention of this Court to the impugned Award dated 23.11.2018 and would submit that even on preponderance of probability, the driver of the insured bus cannot be held responsible for the death of M.Ganesan in the accident. She would further submit that the FIR (Ex.P1) was registered at the behest of the brother of the deceased by name Mr.Karuppannan, who was not present at the scene of the accident, which resulted in the death of his brother M.Ganesan. She would also submit that even as per the FIR, it is the statement of Mr.Karuppannan that he was informed by Mr.Anbuselvan, who was the alleged witness to the accident that the bus insured with the appellant insurance company was responsible for the cause of the accident. The learned counsel would point out that the said Mr.Anbuselvan was not examined as a witness by the respondents 1 to 5/claimants before the Tribunal. 5. The learned counsel then drew the attention of this Court to the deposition of the driver of the lorry bearing Registration No.TN-25-AY-0999 (R.W.2) and would submit that since the said lorry was proceeding in the front and the lorry driver had seen the accident victim lying on the road along with the two wheeler, the possibility of the bus insured with the appellant, which is coming from behind involving itself in the accident will not arise. According to her, the Tribunal has failed to appreciate this clinching evidence to show that the driver of the bus insured with the appellant was not involved in the accident which resulted in the death of M.Ganesan. 6. The learned counsel for the appellant then drew the attention of this Court to the final report filed by the police after investigation, which is marked as Ex.X2, as well as the deposition of R.W.1 (Police Officer) and would submit that since as per the final report, the FIR has been closed as mistake of fact, it is clear that the driver of the bus insured with the appellant was not responsible for the cause of the accident, which resulted in the death of M.Ganesan. 7. 7. The learned counsel then drew the attention of this Court to Section 166 of the Motor Vehicles Act and would submit that the initial burden to prove the negligence is on the part of the claimants, which according to her they miserably failed to discharge. Hence, according to her, the appellant insurance company is not liable to pay compensation. But the Tribunal has erroneously directed them to pay the compensation under the impugned Award. In support of her submissions, the learned counsel for the appellant drew the attention of this Court to the judgment of the Hon’ble Supreme Court in the case of Surender Kumar Arora and another Vs. Dr.Manoj Bisla and Others reported in 2012 4 SCC 552 . 8. Per contra, Mr.J.Ramakrishnan, learned counsel appearing for the respondents 1 to 5/claimants would submit that the accident claim has been adjudicated based on preponderance of probability. According to him, two eye witnesses to the accident have been examined by the claimants namely P.W.2 and P.W.3, who have deposed that the bus insured with the appellant alone was responsible for the cause of the accident. He would also draw the attention of this Court to the oral evidence of R.W.3, the conductor of the bus insured with the appellant and would submit that during the course of his cross-examination, he has admitted that the driver of the bus insured with the appellant was arrested by the police and thereafter let out on bail. Further, he would submit that based on preponderance of probability, the Tribunal has rightly held that the driver of the bus insured with the appellant alone was responsible for the cause of the accident. 9. The learned counsel would further submit that even though the final report of the police discloses that the FIR has been closed on account of mistake of fact, the same cannot be a valuable piece of evidence, as according to him, the said final report was not at all forwarded to the Court having territorial jurisdiction for it to take cognizance of the same and pass final judicial order thereon. He would further submit that the police did not establish any service of the mandatory notice upon the defacto complainant of the case namely Karuppannan informing him of their decision to close down the case on the ground of mistake of fact. He would further submit that the police did not establish any service of the mandatory notice upon the defacto complainant of the case namely Karuppannan informing him of their decision to close down the case on the ground of mistake of fact. He would further submit that the Investigating Officer of the case was not examined as a witness by the appellant/insurance company and instead another police official has been examined. In support of his submissions, the learned counsel for the respondents 1 to 5/claimants drew the attention of this Court to the following authorities viz., (a) Sunita and Others Vs. Rajasthan State Road Transport Corporation and others reported in (2020) 13 SCC 486 ; and (b) Bimla Devi and Others Vs. Himachal Road Transport Corporation and Others reported in (2009) 13 SCC 530 10. As seen from the pleadings as well as the evidence available on record, a consistent stand has been taken by the appellant insurance company that the driver of the bus insured with them was not responsible for the cause of the accident. In fact, a detailed counter statement has been filed by the appellant insurance company before the Tribunal, wherein, they have stated as follows: (a) There is no negligence on the part of the driver of the bus insured with them. (b) The Investigating Officer from the police department has examined number of witnesses, but none of the witnesses have seen the accident and they also did not have any clue as to which vehicle or what type of vehicle caused the accident. (c) Mr.Pandian, the owner-cum-driver of the lorry bearing Registration No.TN-25-AY-0999, which was proceeding in front of the bus insured with the appellant has given a statement before the Investigating Officer that he had seen the accident victim laying on the road along with the two wheeler on 23.09.2015 and therefore the bus insured with the appellant which had crossed the scene of the accident only thereafter cannot be held responsible for the cause of the accident. (d) The Investigating Officer has filed a final report concluding that there is no truth in the complaint given by Mr.Karuppannan, the brother of the deceased and only to grab undue advantage by making a false claim, a police complaint was given by Mr.Karuppannan, which resulted in the FIR getting registered against the driver of the bus insured with the appellant in Crime No.799 of 2015. 11. Therefore, as seen from the counter statement, the appellant insurance company has disputed their liability to pay the compensation at the threshold itself. Even as per the FIR in Crime No.799 of 2015, the defacto complainant Mr.Karuppannan, the brother of the deceased was not an eye witness to the accident. In the FIR, it has been stated that Mr.Karuppannan was informed about the cause of the accident, which resulted in his brother’s death, by a person named Mr.Anbuselvan and his whereabouts were also not disclosed in the depositions of P.Ws 1 to 4. 12. Even though in the complaint given by Mr.Karuppannan, which resulted in the registration of FIR bearing Crime No.799 of 2015, it is stated that Mr.Anbuselvan was a relative of the deceased, the respondents 1 to 5/claimants chose not to examine him as a witness before the Tribunal, despite a categorical stand having been taken by the appellant insurance company that they are not liable to pay compensation as their bus was never involved in the accident. 13. The driver of the lorry bearing Registration No.TN-25-AY-0999, which was proceeding ahead of the bus, insured with the appellant, was examined as a witness by the appellant insurance company as R.W.2. He has deposed that when his lorry was proceeding from Mettupallayam to Vellore via Salem at about 09.15 p.m. while crossing Kuppanoor bridge on the Salem to Harur road, he saw an injured person lying along with a two wheeler on the road and at that time, the bus bearing Registration No.TN-30-AJ-4466 came from behind, overtook and stopped the lorry bearing Registration No.TN-25-AY-0999 and the passengers inside the bus got down accused him and they handed him over to the nearby check post. 14. 14. The Conductor of the bus insured with the appellant was also examined as a witness by the appellant insurance company as R.W.3 and in his deposition also, he has stated that the bus insured with the appellant was not involved in the accident, which resulted in the death of M.Ganesan. 15. As seen from the depositions of R.Ws.1 to 3, it is clear that the bus insured with the appellant which was coming behind the lorry bearing Registration No.TN-25-AY-0999, whose driver had seen the accident victim lying injured along with a two wheeler is not responsible for the cause of the accident. The final report filed by the police which has been marked as Ex.R2 before the Tribunal, by which, the FIR registered as Crime No.799 of 2015, was closed as mistake of fact, also reveals that there is no truth in the complaint given by Mr.Karuppannan (brother of the deceased M.Ganesan) and it was given only to grab undue advantage for making a false claim against the appellant insurance company. 16. As seen from the evidence available on record, there are absolutely no contradictions in so far as the appellant insurance company defence is concerned. Right from the inception, a categorical stand has been taken by the appellant insurance company that the bus insured with them was not responsible for the cause of the accident, which resulted in the death of M.Ganesan. Despite the same, the respondents 1 to 5/claimants have chosen not to examine Mr.Anbuselvan, the person who is alleged to have informed Mr.Karuppannan, the brother of the deceased about the cause of the accident. The alleged eyewitnesses to the accident examined by the respondents 1 to 5/claimants as witnesses before the Tribunal viz., P.W.2 and 3 were not the informant of the accident to the defacto complainant Mr.Karuppannan (brother of the deceased) which resulted in the FIR being registered in Crime No.799 of 2015. The informant of the accident to Mr.Karuppannan was Mr.Anbuselvan, who was not examined as a witness before the Tribunal, despite Mr.Anbuselvan being a relative of the deceased as per Karupannan’s own statement. 17. The informant of the accident to Mr.Karuppannan was Mr.Anbuselvan, who was not examined as a witness before the Tribunal, despite Mr.Anbuselvan being a relative of the deceased as per Karupannan’s own statement. 17. Therefore, this Court is of the considered view that the alleged eyewitnesses viz., P.Ws.2 and 3 were examined as witnesses only to unlawfully aid the false claim made against the appellant insurance company, who is the insurer of the bus, which was not responsible for the cause of the accident. 18. The final report submitted by the police, which has been marked as Ex.R2 before the Tribunal has been filed only after investigating all the witnesses to the accident, which conclusively establish that the bus insured with the appellant was not responsible for the cause of the accident. The police official, though not the Investigating Officer, has also been examined by the appellant insurance company before the Tribunal as R.W.4 and has also supported the contents of the final report (Ex.R2), which confirms that the bus insured with the appellant was not responsible for the cause of the accident. As seen from the accident register, which has been marked as exhibit (Ex.X4) before the Tribunal, no damage whatsoever has been caused to the bus insured with the appellant. 19. All the aforementioned factors would clearly reveal that the bus was not responsible for the cause of the accident, which resulted in the death of M.Ganesan. The judgments relied upon by the learned counsel appearing for the respondents/claimants in the case of Sunita and Others Vs. Rajasthan State Road Transport Corporation and others reported in (2020) 13 SCC 486 and Bimla Devi and Others Vs. Himachal Road Transport Corporation and Others reported in (2009) 13 SCC 530 , does not support the case of the respondents 1 to 5/claimants, in view of the fact that as seen from the pleadings and evidence available on record, it is clear that the preponderance of probability leads to the conclusion that it was not the bus insured with the appellant insurance company responsible for the cause of the accident which resulted in the death of M.Ganesan. The claimants have not discharged their initial burden of proving negligence against the driver of the bus insured with the appellant. Therefore, the decisions relied upon by the learned counsel appearing for the appellant in the case of Surender Kumar Arora and another Vs. The claimants have not discharged their initial burden of proving negligence against the driver of the bus insured with the appellant. Therefore, the decisions relied upon by the learned counsel appearing for the appellant in the case of Surender Kumar Arora and another Vs. Dr.Manoj Bisla and Others reported in 2012 4 SCC 552 is squarely applicable to the facts of the instant case. In that decision, the Hon’ble Supreme Court has held that it was the responsibility of the dependents of the deceased to discharge their initial burden by establishing that the driver of the insured vehicle was responsible for the cause of the accident. Even though, the Driver of the bus would have been arrested by the Police after registration of FIR, that will not aid the claimants contention that the Driver of the insured bus was responsible for the cause of the accident. Under what circumstances, the Driver of the bus was arrested after Registration of FIR is not known. But the final report submitted by the Police, which has been marked as Exhibit absolves the involvement of the Driver of the insured bus in the accident. As seen from the materials and evidence available on record, the preponderance of probabilities will clearly lead to the conclusion that the Driver of the insured bus was falsely implicated in the case. 20. In the case on hand, as observed earlier, the evidence available on record will clearly prove that the bus insured with the appellant was not responsible for the cause of the accident. The respondents 1 to 5/claimants have failed to discharge their initial burden of proving negligence against the driver of the bus insured with the appellant. However, under the impugned Award, the Tribunal has failed to take into consideration the aforementioned factors and has erroneously held that the appellant insurance company liable to compensate the claimants based on preponderance of probability. Though, it is very clear from the evidence available on record that preponderance of probability favours the appellant insurance company rather than the claimants. Instead of accepting the defence raised by the appellant insurance company, the Tribunal has erroneously directed the appellant insurance company to pay the determined compensation to the respondents 1 to 5/claimant. 21. Though, it is very clear from the evidence available on record that preponderance of probability favours the appellant insurance company rather than the claimants. Instead of accepting the defence raised by the appellant insurance company, the Tribunal has erroneously directed the appellant insurance company to pay the determined compensation to the respondents 1 to 5/claimant. 21. For the foregoing reasons, the impugned Award, dated 23.11.2018, passed by the Motor Accidents Claims Tribunal, 2nd Additional District Judge, Salem in M.C.O.P.No.95 of 2016 as against the Appellant has to be necessarily set aside and the appeal will have to be allowed. Accordingly, the impugned Award of the Tribunal, dated 23.11.2018, made in M.C.O.P.No.95 of 2016, is set aside as against the Appellant and this appeal is allowed. No costs. Consequently, the connected miscellaneous petition is closed. As the appeal is allowed, whatever amount the appellant/insurance company has deposited before the Tribunal, shall be returned to the appellant/insurance company on the Appellant/insurance company filing an appropriate application.