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5. On evaluation of pleadings and evidence, both the Tribunals have fixed the negligence on the part of the driver of the Autorickshaw and held that the appellant-Insurance Company and owner of the vehicle were jointly or severely liable to pay compensation. Aggrieved by the finding with regard to the liability, the Insurance Company has preferred the above appeals.

6. Learned Counsel for the appellants submitted that it is evident from Ex.B1 - Driving licence of RW.1, driver of the Autorickshaw that he had licence only to drive light motor vehicle and not a transport vehicle. He further submitted that RW.1 did not possess valid licence to drive the transport vehicle (Autorickshaw) at the time of accident and therefore, there is violation of policy condition, for which, the Insurance Company is not liable to pay compensation. He further submitted that in the absence of specific endorsement in the licence, one could not plead that the driver had valid driving licence to drive an Autorickshaw. He further submitted that mere perusal of licence of driver (light motor vehicle) itself would disclose that the driver was not authorised to drive an autorickshaw and under such circumstances, the owner of the vehicle has failed to exercise due care and caution in engaging the driver to drive transport vehicle, without valid licence. He further submitted that the Insurance Company has discharged its burden of proving that the insured, viz., owner of the vehicle had violated the policy condition by engaging a person, who did not possess a valid licence to drive the transport vehicle (Autorickshaw) and therefore, it is open to the insurer to raise a defence, as per Section 149(2)(ii) of the Motor Vehicles Act. He therefore submitted that the finding of the Tribunal with regard to liability has to be set aside and consequently the insurer is not liable to pay compensation to the claimants. In support of his contention, learned Counsel for the appellant placed reliance on the following decisions, viz.,

11. Without prejudice to the above contention, learned Counsel for the third respondent submitted that the appellant-Insurance Company has failed to let in evidence to discharge their onus to prove that the driver was not having a valid licence at the time of accident and to avoid its liability, the appellant-Insurance Company ought to have proved that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the conditions of the policy with regard to the use of vehicle by duly licenced driver (or) one was not disqualified at the time of accident. He further submitted that the Tribunal has found that the driver had valid licence under Ex.B1 and therefore, the contention of the appellant-Insurance Company that the driver did not possess a valid driving licence is not acceptable. In support of his contention, learned Counsel for the third respondent cited the following decisions, viz., Oriental Insurance Co. Ltd. v. Munshi Ram , National Insurance Corporation Ltd. v. Kanti Devi and National Insurance Co. Ltd. v. Swaran Singh and Ors. .

89. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in Sub-section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are: (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in Sub-section (2) of Section 10. They are 'goods carriage', 'heavy goods vehicle', 'heavy passenger motor vehicle', 'invalid carriage', 'light motor vehicle', 'maxi-cab', 'medium goods vehicle', 'medium passenger motor vehicle', 'motor-cab', 'motorcycle', 'omnibus', 'private service vehicle', 'semi-trailer', 'tourist vehicle', 'tractor', 'trailer' and 'transport vehicle'. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for 'motorcycle without gear', [sic may be driving a vehicle] for which he has no licence. Cases may also arise where a holder of driving licence for 'light motor vehicle' is found to be driving a 'maxi-cab', 'motor-cab' or 'omnibus' for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence.

38. On careful analysis of the judgments cited by the learned Counsel appearing for the parties and the materials on record, I am of the considered opinion that if a person is already in possession of a driving licence authorising him to drive a vehicle other than a transport vehicle, he cannot be permitted to drive a transport vehicle, unless as per Form 6 and in terms of Rule 16 of 1989 Rules, the driving licence additionally authorises and entitles him to drive a transport vehicle, in addition to any other type of vehicle for which the driver might have already been licenced/authorised to drive. A person having Light Motor Vehicle is not authorised to drive a commercial vehicle without due endorsement made by the competent authorities. The driving licence to drive light motor vehicle is not appropriate Page 1726 to drive an autorickshaw which is a transport vehicle. Following the decision of the Apex Court in National Insurance Co. Ltd. v. Kusum Rai and Ors. , the insurer can also take a defence that the driver did not have the requisite driving licence to drive a particular type of vehicle and it will be for the insurer to prove that the insured did not take adequate care and caution to verify genuineness or otherwise of the licence held by the driver. The effect of the evidence in this regard has to be considered by the concerned Tribunal. The owner of the motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven by a person who does not satisfy the provisions of Section 3 and 4 of the Act. It is the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle and he cannot contend that he has no liability to verify the fact as to whether the driver of the vehicle possessed a valid licence or not. The Tribunal should evaluate the evidence on record and a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not allowed to avoid its liability merely for technical breach of conditions concerning driving licence.