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17. Driver of Maruthi car has filed MCOP.No.37/2003 on the file of Motor Accident Claims Tribunal [II Additional Subordinate Judge], Villupuram. As per the order in C.M.P.No.188/2010 dated 08.03.2010, the Award in MCOP.No.37/2003 was ordered to be received as additional evidence in these Appeals and marked as Ex.R5. Tribunal has recorded finding that the accident was solely due to negligent driving of Mini lorry driver. In MCOP.No.37/2003, Tribunal has passed the Award on 30.11.2006 awarding compensation of Rs.1,83,300/- jointly and severally payable by the owner and insurer of Mini lorry to the car driver.

18. It was submitted that the Award in MCOP.No.37/2003 was not challenged and the same has become final. Learned counsel for insurer of Maruthi car contended that in MCOP.No.37/2003, the Tribunal has held that the accident was solely due to negligence of Mini lorry driver and the impugned Award in MCOP.No.100/2003 apportioning the negligence in the ratio of 65% : 35% is contradictory and there cannot be two contradictory views as to the same accident. In support of his contention, learned counsel for insurer of Maruthi car placed reliance upon 2008 ACJ 1964 [Machindranath Kernath Kasar v. D.S.Mylarappa and others] where collision between Corporation bus and truck coming from opposite direction and several passengers travelled in the bus including driver sustained injuries. Passengers filed Claim petitions and the driver of the bus was not impleaded as Respondent. Driver of the bus examined onbehalf of Corporation and finding on negligence in claims made by passengers went against the bus driver and the bus driver did not file any appeal even when his own claim petition was pending before the same Tribunal and the finding attained finality and it was accepted by the Corporation. In such facts and circumstances, the Supreme Court held that non-filing of appeal would give rise to an anomalous situation. Holding that the Appellant was found to be rash and negligent in driving and is legally liable and that if he intended to get rid of the findings recorded by the Tribunal, he could have preferred an appeal there against, in Para (23), the Supreme Court held as under;-

19. Laying emphasis upon the findings in MCOP.No.37/2003 where the Tribunal held that the accident was due to negligent driving of Mini lorry driver, learned counsel contended that findings in MCOP.No.37/2003 was not challenged and the finding has become final and therefore, there cannot be any contradictory finding in respect of the same accident. In support of his contention, learned counsel also placed reliance upon the unreported Judgment in C.M.A.Nos.1553 of 1999 and 2031 of 2000 dated 26.12.2001 [P.S.D.,J], wherein the learned single Judge has held that two contradictory views will lead to an anomalous situation which is not permissible in law.

20. Learned counsel for insurer of Mini lorry has submitted that as against the Award in MCOP.No.37/2003 and its findings thereon, Appellant-National Insurance Company has preferred an appeal in CMA SR.No.82279/2009 along with application to condone the delay and the matter is said to be pending. As rightly submitted by the learned counsel Mr.Vijayaraghavan, the finding of the Tribunal in MCOP.No.37/2003 might not have been brought to the notice of the Tribunal while passing the Award in MCOP.No.37/2003. In our considered view, since, the Award in MCOP.No.37/2003 is challenged by way of an appeal in CMA SR.No.82279/2009, we do not propose to go into the question whether the finding in MCOP.No.37/2003 would operate as issue of estoppel. Since the appeal is said to have been filed, we do not propose to go into the applicability of the decision in 2008 ACJ 1964 [Machindranath Kernath Kasar v. D.S.Mylarappa and others].