THE MANAGER ORIENTAL INSURANCE COMPANY LIMITED, THROUGH REGIONAL MANAGER REGIONAL OFFICE Vs. SMT. RUKSANA BEGUM @ AASHABEE, RAGHAVENDRA, K.M. HUCHAPPA AND SMT. HALEEMA BEE

JUDGEMENT

(1.) BY judgment dated 29/10/2013, the appeal and cross objection were disposed of. Thereafter, learned counsel for the insurance company has moved a memo for being spoken to. Hence, the matter is posted today and the order dated 29/10/2013 is recalled. Learned counsel for the insurance company argued mainly on 3 points. Firstly, judgment of the Supreme Court in the case of S. Iyyapan Vs M/s. United India Insurance Company Ltd. and Another reported in : 2013 (3) TAC 392 (SC) is not applicable to a case where licence was issued after amendment to Central Motor Vehicles Rules i.e. 28/03/2001. The issue in the said judgment was in respect of the licence issued during the period of non -amendment to the central Motor Vehicles Rules. The licence was issued on 23/05/1988 for driving a transport vehicle and the licence which the driver was holding was for a non -transport vehicle and it was held on the basis that during the said period there was no requirement of possessing a specified licence for transport and non transport. Secondly, by referring to the judgment of this Court in the case of United India Insurance Co. Ltd. v. Salaudin Abdulkhadar Maniyar and Another reported in : 2009 (4) TAC 213 (Kant) wherein it is held that in an appeal filed by the insurance company challenging liability, the claimants cannot file cross -objection for enhancement of compensation. Thirdly, in respect of awarding future: prospects by relying on the judgment of the Supreme Court in the case of Vimal Kanwar and Ors. V. Kishore Dan and Ors. reported in : 2013 AIR SCW 3258 contending that future prospects cannot be taken at 100% and it should be 50% as per Sarla Verma's case.

(2.) LEARNED counsel further submits that the Tribunal has fastened the liability on the insurance company to pay compensation since the driver was holding a valid driving licence. He further contends that the driver of the vehicle in question was not holding a valid driving licence since he was driving a transport vehicle with a licence for non -transport vehicle. He submits that Motor Vehicles Act (hereinafter referred to as the "Act") prescribes certain provisions and quite contrary to the said provisions, if a person in possession of a licence which is not relevant, liability cannot be fastened on the insurance company. In support of his submission, he refers to the judgment in the case of Oriental Insurance Company Limited Vs. Angad Kol and Others reported in : 2009 (2) TAC 4 (SC) and Division Bench judgment of this Court in Miscellaneous First Appeal No. 12579/2007 disposed of on 08/09/2011. By referring to Section 3 of the Act, he submits that a person who drives a motor vehicle in any public place should possess an effective and valid driving licence issued by the competent authority and said Section further states that no person shall drive a transport vehicle unless his driving licence specifically entitles him to do so; Section 5 of the Act mandates that no owner or person in charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of Section 3 or Section 4 of the Act which prescribes age limit to drive a motor vehicle. Therefore, he prays for allowing of the appeal by modifying the judgment of the Tribunal in fastening the liability.

(3.) IN reply to awarding of future prospects is concerned, by referring to the judgment of this Court in Miscellaneous First Appeal No. 21077/2010 dated 20/09/2013 in the case of The Divisional Manager Vs. Shivanand and Another; Miscellaneous First Appeal No. 22795/2010 dated 29/08/2013 in the case between Divisional Manager and Suresh and others; and the Division Bench judgment dated 08/10/2013 in MFA No. 20778/2013 and connected matters in the case of ICICI General Insurance Company Limited Vs. Gangawwa Basappa Kallolli, submits that future prospectus has to be awarded not only in case of permanent employment but also self employment. Lastly, he submits that in view of the judgment in S. Iyyapan's case (supra), claimant can claim compensation from the insurance company even if a person possesses licence for non -transport vehicle but drives a transport vehicle.