ORDER :

1. Though this matter was listed for admission, however, with the consent of learned counsel for the parties it is heard finally.

2. This appeal has been filed by the appellant/Insurance Company under Section 173 of Motor Vehicles Act, being aggrieved by the award dated 16.03.2021 passed by the Additional Member of District Motor Accident Claims Tribunal, Jaisingh Nagar, District Shahdol in MACC No. 32/2016 on account of reduction/exoneration from the liability.

3. Brief facts of the case are that on 25.07.2015 at 6:20 pm respondent No. 1 (Punran Chandra Kesharwani @ Bablu) was driving motor cycle bearing registration No. MP-18 MC-8862. The respondent No. 2 (Arjun Yadav) came from opposite side, driving his Motor Cycle No. MP-18-MH-0442, in a rash and negligent manner and dashed against the claimant's motor cycle, causing him serious injury on his thigh. The left femur bone of claimant got fractured and the disability of permanent nature has been caused. The claimant filed the claim petition for compensation under Section 166 of Motor Vehicles Act before the Tribunal and prayed for grant of compensation to the tune of Rs.45,70,000/-.

4. Police registered the case against respondent No. 2 for causing grievous hurt by rash driving as well as for driving vehicle at public place without having licence to drive the same under Section 3/181 of Motor Vehicles Act.

5. Owner and driver of the offending vehicle, after filing a written statement was proceeded ex-parte. He denied all allegations and submitted that driver of the offending vehicle had valid and effective driving licence at the time of the accident and the vehicle was insured with the Insurance Company, so he is not liable for payment of any compensation.

6. Driver of the offending vehicle filed a separate written statement and also denied all allegations and submitted that he had a valid and effective driving licence.

7. Insurance Company, namely, the New India Assurance Company Limited filed its reply and denied the allegations and submitted that at the time of the accident, respondent No. 2 (Arjun Yadav) driver of the offending vehicle had no valid and effective driving licence and further submitted that accident has been caused on account of front on collusion on wide road and in this manner negligence of the claimant has been claimed.

8. It is also claimed that both the drivers are having motor cycles i.e. claimant as well as respondent No. 2 who were driving their motor cycles without having driving licence. Hence, there is violation of the condition of the insurance policy by the insured respondent No. 2 has been pleaded. He further pleaded that respondent No. 2 had no driving licence, so Insurance Company is not liable to pay compensation.

9. The Tribunal framed issues, recorded the evidence and thereafter, Tribunal accepted the petition filed by the claimant and awarded amount of compensation of Rs. 3,76,136/- with interest @ 9 % per annum from the filing of the petition till realization against Insurance Company.

10. Being aggrieved by the aforesaid award, Insurance Company filed this Misc. Appeal and submitted that Tribunal has failed to consider and scrutinized the contents of FIR, in light of circumstances and pieces of evidence, oral and documentary. Tribunal has failed to consider that accident has been occurred due to front on collusion on a wide road. Hence, this is a case of contributory negligence of both the drivers, therefore, the claimant has also contributed equally to the accident. He further submitted that Tribunal has failed to consider that no evidence can be produced for proving the fact which is not in existence, hence, non-examination of any officer of RTO office is not fatal for the appellant/insurer in order to prove that insured (respondent No. 2) had no licence to drive insured vehicle.

11. So, Tribunal has failed to consider that driving of insured vehicle without obtaining driving licence from appropriate authority is clear violation of contr