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The Manager, Oriental Insurance Company Limited & Another v/s Ruksana Begum @ Aashabee & Others

    MFA No. 21079 of 2009 c/w MFA Crob No.745 of 2009 (MV)

    Decided On, 08 November 2013

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONOURABLE MR. JUSTICE L. NARAYANA SWAMY

    For the Appellant: S.K. Kayakamath, Advocate. For the Respondents: R1, Harish S. Maigur, R4, Hanumanthareddy Sahukar, Advocates.



Judgment Text

(Prayers: This appeal is filed under Section 173(1) of MV Act, 1988 against the judgment and award dated 22/07/2008 passed in MVC No.630/06 on the file of the Civil Judge Sr.Dn and MACT, Gangavathi, awarding a compensation of Rs.9,20,536/- with interest @ 8% p.a. from the date of petition till the date of deposit.

This MFA Crob is filed under Order 41 Rule 22 OF CPC against the judgment and award dated 22/7/2008 passed in MVC No. 630/2006 on the file of the Civil Judge(SD) and MACT, Gangavathi, partly allowing the Claim Petition for compensation and seeking enhancement of compensation.)

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.

2. 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

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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.

3. 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.

4. On the other hand learned counsel for cross-objector submits that in view of the judgment in the case of Oriental Insurance Co. Ltd., Hubli V. Bannemma and Others reported in 2013 (2) AKR 298(para 16), the claimants are entitled to file cross-objections even in the appeal filed by the insurance company challenging liability.

5. 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.

6. Heard the learned counsel for the parties.

7. With regard to filing of cross-objection in the appeal filed by the insurance company challenging liability is concerned, this Court in the case of Oriental Insurance Co. Ltd., Hubli V. Bannemma and Others reported in 2013 (2) AKR 298 has held that claimants are entitled to file cross objections even in the appeal filed by the insurance company challenging liability and the same applies to this case also.

8. So far as awarding future prospects with regard to employment either self or permanent in nature is concerned, he refers to the judgments in the case of Sanobanu Nazirbhai Mirza and Ors. vs. Ahmedabad Municipal Transport Service in Civil Appeal NO.8251/2013 dated 03/10/2013 and in SCW 13 2358 while High Court reffering to Sarla Verma's case, has held that 50% must be added to the total income of the deceased for the period if he had been alive which has been followed in the case of Rajesh and Others Vs. Rajbir Singh and Others reported in 2013 ACJ 1403 and in the case of Vimal Kanwar & Ors. V. Kishore Dan & Ors. reported in AIR 2013 SCW 3258. In the light of the above cited judgments, there is no quarrel as to adding 50% towards future prospects.

9. Relying upon the judgment in the case of S. Iyyapan(supra) that possession of valid and effective driving licence is a must in order to fasten the liability, the learned counsel submitted that in the said case, licence was obtained on 23rd May 1988 that is to say prior to 28th March 2001 on which date amendment was brought to the Central Motor Vehicles Rules necessitating to possess a valid and effective driving licence in respect of both transport and non-transport vehicle. During the period and in the absence of said amendment, Supreme Court in the said judgment held to the effect that the possessing a valid and effective licence would apply for transport and non-transport vehicle and liability can be fastened on the insurance company; that the judgment in S. Iyyapan's case(Supra) is per inquriam, since it did not deal with the provisions of the Motor Vehicles Act and also the said provisions were not the subject matter in the said judgment; that the statutory provision for issuance of driving licence, has to be adhered to and that ground has not been relaxed in the said judgment; the judgment reported in 2009(2) TAC 4 SC in the case of Angad Kol and Others, the Supreme Court held that that to fasten the liability on the insurance company, driver must have a effective and valid driving licence issued as per the provisions of the Motor Vehicles Act and the said judgment has been followed by this Court in MFA No.12579/2007 disposed of on 08/09/2011.

10. Now the question would be whether the judgment of the Supreme Court in S.Iyyapan's case has dealt with the provisions which requires for issuance of driving licence or S.Iyyapan's case has any bearing on the facts of the present case.

11. Section 3 of the Act reads thus:

3. Necessity for driving licence:-(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle(other than(a motor cab or motor cycle) hired for his own use or rented under any scheme made under sub-section(2) of section 75) unless his driving licence specifically entitled him so to do.

(2) the conditions subject to which sub-section(1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.

The plain reading of Section 3 of the Act is that in order to drive a transport and non-transport vehicle, specific description has been made in the Act itself. Valid driving licence means, a licence issued by a competent authority authorizing a person specified therein to drive a specified class of vehicle, either transport and non-transport. Licnece issued to a particular class of vehicle is said to be an effective and valid driving licence. It cannot be said that possession of driving licnece in respect of transport vehicle is applicable to non-transport vehicle also. Section 4 of the Act prescribes age limit in connection with driving of motor vehicles. Section 5 of the Act refers to responsibility of owners of motor vehicles for contravention of sections 3 and 4. Section 6 refers to restrictions on the holding of driving licences. Section 7 is with regard to restrictions on the granting of learner's licences for certain vehicles. Section 8 refers to grant of learner's licence and Section 9 refers to grant of driving licence.

12. These provisions of law were not discussed and were not the subject matter in S.Iyyapan's case and since the provisions of law referred to above were not discussed, it was held that insurance company has to satisfy the award irrespective of the fact whether the driver holds valid driving lience for transport or non-transport vehicle and also since amendment to Central Motor Vehicles Rules was not in force. Hence, I hold that the judgment in S.Iyyapan's case is per inquriam to the facts of the present case. It is necessary to refer some of the decisions on per incuriam.

(i) The judgment of the Supreme Court in MAYURAM SUBRAMANIAN SRINIVASAN vs. C.B.I. In paragraphs 10, 11 and 12 of the report, the Supreme Court observed thus:

"10. In State v. Ratan Lal Arora it was held that where in a case the decision has been rendered without reference to statutory bars, the same cannot have any precedent value and 58 shall have to be treated as having been rendered per incuriam . The present case stands on a par, if not on a better footing. The provisions of Section 439 do not appear to have been taken note of.

11. "Incuria" literally means "carelessness". In practice per incuriam is taken to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The "quotable in law", as held in young v. Bristol Aeroplane Co. Ltd., is avoided and ignored if it is rendered, "in ignoratium of a statute or other binding authority". Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution of India, 1950 (in short "the Constitution") which embodies the doctrine of precedents as a matter of law. The above position was highlighted in State of U.P. v. Synthetics and Chemicals Ltd. To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience. The position was highlighted in Nirmal Jeet Kaur v. State M.P.

(ii) N.Bhargavan Pillai v. State of Kerala. It was observed in para 14 as follows: (SCC pp. 223- 24)

14. Coming to the plea relating to benefits under the probation Act, it is to be noted that Section 18 of the said Act clearly rules out application of the Probation Act to a case covered under Section 5(2) of the Act. Therefore, there is no substance in the accused-appellant's plea relating to grant of benefit under the probation Act. The decision in Bore Gowda case does not even indicate that Section 18 of the Probation Act was taken note of. In view of the specific statutory bar, the view, if any, expressed without analysing the statutory provision cannot in our view be treated as a binding precedent and at the most is to be considered as having been rendered per incuriam. Looked at from any angle, the appeal is sans merit and deserves dismissal which we direct."

(emphasis supplied)

(iii) In Narmada Bachao Andolan v. State of Madhya Pradesh & Anr., the Supreme Court in paragraphs 60 and 61 observed thus:

PER INCURIM-Doctrine:

"60. "Incuria" literally means "carelessness". In practice per incuriam is taken to mean per ignoratium. The Courts have developed this principle in relaxation of the rule of stare decisis. Thus, the "quotable in law" is avoided and ignored if it is rendered, in ignorance of a Statute or other binding authority. While dealing with observations made by a seven Judges' Bench in India Cement Ltd. etc. etc. v. State of Tamil Nadu etc. etc., AIR 1990 SC 85, the five Judges' Bench in State of West Bengal v. Kesoram Industries Ltd. & Ors., (2004) 10 SCC 201: (AIR 2005 SC 1646: 2004 AIR SCW 5998), observed as under:

"A doubtful expression occurring in a judgment, apparently by mistake or inadvertence, ought to be read by assuming that the Court had intended to say only that which is correct according to the settled position of law, and the apparent error should be ignored, far from making any capital out of it, giving way to the correct expression which ought to be implied or necessarily read in the context, ......... A statement caused by an apparent 20 typographical or inadvertent error in a judgment of the Court should not be misunderstood as declaration of such law by the Court."

61. Thus, "per incuriam" are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the Court concerned, or statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."

(emphasis supplied)

(iv) This Court in Subhadra and Others Vs. Pankaj and another ILR 2013 KAR 102 after considering the aforementioned judgment of the Supreme Court in paragraph no.14 observed thus:

"14. It is thus clear that if there is an error of law occurring in a judgment, apparently committed by mistake or through inadvertence, such judgment should not be misunderstood as declaration of law by the Court. Similarly, if the judgment is delivered in forgetfulness of some statutory provision, or a statement of law caused by inadvertence or conclusion that has been arrived at without any reasons, or rendered without analysing the relevant provision, it cannot be treated as a binding precedent and at the most is to be considered as having been rendered per- incuriam. In other words, if intricacies of relevant provisions are either not noticed by the Court or brought to the notice of Court and if the view is expressed without analysing the said provision, such view cannot be treated as binding precedent."

(emphasis supplied)

13. Liability to pay compensation arises only when the driver of the Vehicle or owner of vehicle possesses a valid and effective driving licence, as specified under the Act, and on satisfying all the conditions in the policy. In the instant case, driver of the vehicle in question was holding licence to drive non- transport vehicle whereas he was driving a transport vehicle for which the driver is to be held liable since he has committed an offence under Indian Penal Code, as he has contravened the provisions of the Act.

14. Under the circumstances, I hold that the order of the Tribunal fastening liability on the insurance company has to be set aside. Hence I pass the following order:

Appeal filed by the insurance company is allowed. The judgment and award dated 22/07/2008 passed by the MACT, Gangavathi in MVC No.630/2006 is modified to the extent of fastening of liability on the insurance company. Liability fastened by the Tribunal on the insurance company is set aside and the owner is directed to satisfy the award.

In view of allowing of appeal, cross objection filed by the claimants stands disposed of. Amount in deposit is ordered to be refunded the appellant - Insurance Company.
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