HONOURABLE SRI JUSTICE NOUSHAD ALI M.A.C.M.A.No.5482 of 2008 24-06-2010 Between: National Insurance Company Limited, rep. by its Manager, Dwarakanagar, Visakhapatnam. ………Appellant And Kaki Venkata Ramana and another. ………Respondents HONOURABLE SRI JUSTICE NOUSHAD ALI M.A.C.M.A.No.5482 of 2008 JUDGMENT: This is an appeal filed by the Insurance Company challenging the award dated 08-09-2008 in M.O.P.No.596 of 2005 on the file of the VIII Additional District and Sessions Judge (F.T.C.), Visakhapatnam (for brevity ‘the Tribunal’) to the extent it is made liable to pay compensation to the 1st respondent (claimant in O.P.). 2. On 16-08-2003, when the claimant was driving a motorcycle bearing Regn. No.AHO 2843, an auto bearing Regn. No.AP-31W-8097 (hereinafter referred as ‘Auto’), coming in the opposite direction, hit the motorcycle, as a result of which, the claimant received injuries. The Auto was insured with the appellant- insurance company. The claimant claimed a sum of Rs.5.00 lakhs. The Tribunal awarded a sum of Rs.3,63,000/- with interest at 7.5% per annum. The 2nd respondent herein (Auto Owner) denied rash and negligent driving on the part of the driver of the auto and denied the age, occupation and earnings of the claimant. The appellant-Insurance Company, opposed the claim and denied its liability on the ground that the driver of the Auto was not holding valid licence to drive transport vehicle at the time of the accident. 3. Relevant issues were framed relating to rash and negligent driving of the vehicle; the quantum of compensation to which the claimant was entitled and also which of the respondents, the compensation would be payable. 4. On a consideration of the evidence and on the basis of material, the Tribunal held that the accident occurred due to the rash and negligent driving on the part of the driver of the auto. Further based on the evidence relating to injuries and the treatment received by the claimant reflected in Exs.A-4 to A-20 and the oral evidence of the Doctors P.Ws.2 to 4, the Tribunal awarded a sum of Rs.2,50,000/- towards permanent disability, and Rs.50,000/- towards loss of future earnings. The Tribunal also awarded an amount of Rs.36,000/- towards loss of earnings, Rs.3,000/- towards transport, Rs.8,000/- towards extra nourishment, and of Rs.1,000/- towards damages to cloths and articles (i.e. Rs.48,000/- towards special damages) and a further sum of Rs.15,000/- towards pain and suffering. Thus, a total sum of Rs.3,63,000/- was awarded. 5. The Appellant – Insurance Company obtained permission under Section 170 of the Motor Vehicles Act, 1988 (for brevity ‘the Act’) to defend on grounds in addition to those enumerated in Section 149 of the Act. Learned counsel for the appellant-Insurance Company Sri N.Mohan Krishna therefore fairly submitted that the issues regarding rash and negligence and the quantum of compensation need not be gone into in this appeal. 6. The learned counsel would contend that an Auto is a transport vehicle. A licence to drive an auto to be effective should have specific authorization to drive a transport vehicle. The driver of the offending Auto did not possess such authorization. He would further contend that the Tribunal despite holding that the driver had no licence to drive transport vehicle and the appellant-Insurance Company is not liable, erroneously directed it to pay and recover the amount from the owner of the vehicle. The learned counsel would therefore submit that the Tribunal should have absolved the appellant and no further direction ought to have been given to pay the amount and recover the same from the owner of the vehicle. 7. Notice of this appeal was sent to the 2nd respondent by registered post with acknowledgment due. The post was returned with an endorsement “refused”. The envelop also contains endorsements “intimation on 24-01-2009”, “2nd intimation on 07-01-2009” and ultimately returned with an endorsement dated 31-01-2009 as “refused”. Refusal of the notice amounts to actual service of the 2nd respondent. The 2nd respondent remained ex parte in this appeal. 8. The offending vehicle is an ‘Auto’, which is meant for carrying passengers, therefore the vehicle is a public service vehicle within the meaning of Sub-Section (35) of Section 2 of the Motor Vehicles Act, 1988. A public service vehicle is a ‘transport vehicle’ within the meaning of Sub-Section (47) of Section 2 of the Act. 9. Section 3 of the Act provides that no person shall drive motor vehicle in any public place, unless he holds an effective driving licence issued to him authorizing him to drive a vehicle and no person shall so drive a transport vehicle (other than a motor cab or motorcycle) hired for his own use or rented under any scheme made under Sub- Section 2 or Section 75, unless the driving licence specifically entitles so to do. 10. Section 10 of the Act describes the Form and contents of the licences. Sub Section (2) of Section 10 describes that driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, viz., (a) motor cycle without gear; (b) motor cycle with gear; (c) invalid carriage; (d) light motor vehicle; (e) transport vehicle; (f) to (h) x x x x x (i) road-roller; and (j) motor vehicle of a specified description. 11. Section 11 provides for additions to driving licence. A person holding a driving licence to drive any class or description of motor vehicles may apply and obtain additional authorization to drive other class or description of motor vehicles added to the existing licence. 12. Chapter 2 of the Central Motor Vehicles Rules 1989 provides for Forms and Procedure relating to the driving licence. As per Rule 10 of the Rules, an application for grant of a learners licence shall be made in Form-2 and under Rule 13 of the Rules, such licence should be issued in Form 3. As per Rule 14, an application for driving licence is made in Form 4 and an international licence in From 6-A and under Rule 16 of the Rules, such licence shall be issued in Form 6 and 6-A respectively. As per Rule 17, any application for addition of another class of motor vehicle to the driving licence to be made in Form 8. Form 6 enumerates the classes of vehicles as enumerated in Section 10 of the Act. The corresponding Form 6 is the authorization to drive the aforesaid class/classes of vehicles. This is the legal frame of driving licence under motor vehicles Act, 1988. 13. The Form prescribed under Rule 16 of the Rules provides that the holder of licence can drive any vehicle of the description mentioned therein where authorization is granted to drive transport vehicle which is expressly so provided by making an endorsement to that effect. The distinction between light motor vehicle “and transport a vehicle” is therefore evident. 14. Sections 3, 10, 11 of the Act and Rule 16 of the Rules read together make it clear a licence to be effective should have authorization to drive the particular class of vehicle. Thus, if a vehicle is a light motor vehicle “but falls under the category of transport vehicle”, the driving licence should be endorsed as “Transport Vehicle”. If it is not done, a person holding driving licence to a light motor vehicle cannot ply transport vehicle. 15. In New India Assurance Co. Ltd. V. Prabhu Lal[1] the Apex Court, while considering the case which involved a goods carrier which is a transport vehicle within the meaning of Section 2 (7) of the Act, held that Section 3 required a driver to have an endorsement which would entitle him to claim a transport vehicle. In a later decision, in Oriental Insurance Co. Ltd., V. Angad Kol & Others[2], after referring to the judgment in Prabhu Lal’s case (supra 1) and other judgments, the Apex Court reiterated the same view. 16. Mere holding a light motor vehicle is not sufficient to drive a transport vehicle. Licence to be effective as required under Section 3 of the Act should have an authorization entitling the holder to driver the particular class of motor vehicle. 17. In the instant case, in order to establish that the driver of the auto possessed no licence to drive a transport vehicle, the appellant- Insurance Company examined R.W.1 and R.W.2. R.W.1 is working as a Junior Assistant in the office of the Regional Transport Authority, Visakhapatnam. He identified Ex.B-1 which is the abstract copy of the licence standing in the name of Sri S.K.Reddy, S/o.Sanyasi Rao, issued to him on 19-11-2006. It is a licence to drive motorcycle with gear and light motor vehicle (non-transport). R.W.1 stated that the said person was issued licence to drive transport vehicles only on 04-01- 2006 (accident occurred on 16-08-2003). 18. R.W.2 is an Administrative Officer of the appellant-Insurance Company, through whom Ex.B-3, a copy of the Insurance Policy, was marked. According to his evidence, the driver did not have driving licence to drive transport vehicles. The evidence of R.Ws.1 and 2 and Ex.B-1 make it clear that the driver of the auto had no licence to drive transport vehicles. There was no evidence adduced by the 2nd respondent to prove that the driver, in fact, has such licence and authorized to drive the transport vehicles. On a consideration of the aforesaid facts and law, it is manifest that the driver of the auto had no valid driving licence, as such, Insurance Company is not liable to pay any compensation. In fact, it is held to be so by the Tribunal. 19. The Tribunal rightly referred to the judgments of the Apex Court in Sardari and Others v. Susheel Kumar and others[3], National Insurance Company Limited V. Swaran Singh and others[4], Premkumari and Others V. Rahladdev and Others[5] and Oriental Insurance Co. Ltd. V. Nanjappan[6]. However, it directed the appellant-Insurance Company to pay and recover the compensation from the owner on the ground that the claimant approached the Court in 2005 and he might be an employee working in Steel Plant and that the owner of the Auto remained ex parte. 20. It may be noted that the 2nd respondent-owner of the vehicle has exhibited deliberate indifference through out the proceeding. The 2nd respondent, owner of the vehicle, was ex parte before the Tribunal. He remained absent in this Court also and refused to receive the notice in the appeal. In the peculiar facts and circumstances of the case, considering the attitude of the owner of the vehicle, this Court is of the opinion that it is not a fit case to direct the appellant-Insurance Company to pay and recover the amount from the owner. 21. In the circumstances above, the impugned judgment dated 08-09-2008 in M.V.O.P.No.596 of 2005 on the file of the VIII Additional District and Sessions Judge (F.T.C.), Visakhapatnam, to the extent it has attached the liability to the appellant-Insurance Company and directed to pay and recover from the 2nd respondent is set aside. The claimant may proceed to recover the amount from the 2nd respondent as per the award in the M.V.O.P. 22. Appeal is accordingly allowed. There shall be no order as to costs. ______________ 24th June 2010 KVR [1] AIR 2008 (S.C.) 614 [2] 2009 ACJ 1411 [3] 2008 (3) ALT 26 S.C. [4] 2004 (3) S.C.C. 297 [5] 2008 (1) Scale 531 [6] 2004 (13) S.C.C. 224