Order on Board

17.10.2022

1. These are three appeals arising out of a same accident. The appellant in three appeals are the same Insurance Company. The three claim applications decided and the award of which is under challenge are Claim Case No.1048 of 2019, 1049 of 2019 and 1047 of 2019 respectively. All the three claim applications were decided on the same day vide impugned award dated 25.07.2022 by the IIIrd Additional Motor Accident Claims Tribunal, Bilaspur. The Tribunal while deciding the claim applications has awarded compensation of Rs.13,00,360/-, Rs.1,28,470/- and Rs.13,00,360/- respectively in three cases with interest @ 9 per annum from the date of application. It is these three awards which are under challenge in these three appeals.

2. MAC Nos. 1116 of 2022 and 1119 of 2022 are arising out of a death case where the deceased was Prem Nishad and Gowardhan Patel respectively. The accident arose as a result of clash of two motorcycles on 05.03.2019. One of the motorcycle being driven by the deceased Gowardhan Patel i.e. deceased in MAC No.1119 of 2022 bearing registration No.CG-12-K-2610. The said motorcycle was insured with the ICICI Lombard General Insurance Co. Ltd. The said vehicle was owned by Tikeshwar Kumar Patel. Anil Kumar Patel, an injured, the claimant in MAC No.1118 of 2022 was the pillion rider along with the two deceased Gowardhan Patel and Prem Nishad. So far as the other motorcycle is concerned, it was CG-22- M-6571, owned and driven by Chandraprakash Sahu along with pillion rider Sudhir Kumar. Sudhir Kumar died as a result of the said accident and the legal heirs of Sudhir Kumar had filed a claim application before the Claims Tribunal Baloda Bazar Bhatapara vide claim case No. 135 of 2019 and where there was an award passed on 27.10.2021 and where assessing composite negligence upon the driver of the two motorcycles the liability was distributed between the two insurance companies which had insured the two motorcycles. The said vehicle which was being driven by Chandraprakash Sahu with a pillion rider Sudhir Kumar was insured with the present appellant Tata AIG General Insurance Co. Ltd.

3. The admitted factual position is that the driver of motorcycle insured by the appellant herein CG22-M-6571 namely Chandraprakash Sahu was not having a valid driving license on the date of accident and it was in this context that the Tribunal while assessing the compensation has applied the principle of Pay and Recovery. It is this three awards which are under challenge in the three appeals.

4. The contention of the learned counsel for the appellant is that the Tribunal has erred in not accepting the contention of the insurance company of there being a contributory negligence on the part of the drivers of the two motorcycles particularly when the Tribunal at Baloda Bazar Bhatapara has reached to the said conclusion. The further contention of the appellant is that the finding of the Tribunal that they are not a necessary party also is incorrect and the impugned award deserves to be interfered with on this count.

5. Perusal of pleadings and the impugned judgment would go to show that there was no application as such moved by the appellant for impleading the owner, driver and the insurance company of the motorcycle driven by Gowardhan Patel i.e. CG-22-K-2610 as a necessary party. What is also evident from the pleadings is that the insurance company in respect of its contention have examined only the Investigating Police Officer of the criminal case from the FIR that was registered against the accident that occurred on 05.03.2019.

6. As a result of the accident, two FIRs were registered at Police Station Kasdol. One as Crime No.150/2019 and the other as Crime case No.151/2019. The two crimes were registered against the respective drivers of the two motorcycles involved in the accident. Apart from this fact, the Investigating Officer has not been able to adduce any evidence to substantiate the contention of contributory negli