GOVINDANUTTY NAIR Vs. GOPALAKRISHNAN

JUDGEMENT

(1.) This is an appeal at the instance of the owner of the offending vehicle. The main contention raised in this appeal is that the Tribunal has committed an error in absolving the insurance company from the liability on the ground that the driver of the vehicle was not having proper licence to drive the offending vehicle, namely, the autorickshaw.

(2.) xThe insurance company had taken a specific contention before the Tribunal that the driver was not having a proper licence to drive the transport vehicle. In spite of the fact that an application made by the insurance company seeking direction to produce the driving licence of the driver was allowed, it was not produced before the Tribunal and, therefore, adverse inference was drawn against the respondents. Before this court C.M.P. No. 5759 of 1999 was filed producing photocopy of the driving licence of the respondent No. 2 before the Tribunal. Pursuant to a direction issued by this court learned Government Pleader got down the entire files .from the office of the Regional Transport Authority at Ottappalam, regarding the licence issued to the driver of the offending vehicle. It is seen that he was granted authorisation to drive transport vehicle only with effect from 18.11.1992. The badge was also given to him on that date. Therefore, it has to be taken that at the time of the accident he was not authorised to drive a transport vehicle, definition of which will take in an autorickshaw also.

(3.) Learned counsel appearing for the appellant contended that the provision regarding issue of badge authorising a person to drive a transport vehicle is only directory and not mandatory. Under rule 10 of the Kerala Motor Vehicles Rules, 1961 which were in force at the time of the accident, an application for grant of an authorisation to drive transport vehicles shall be made to the licensing authority in form 'LTA' and shall be accompanied by the driving licence and certain other certificates. Rule 16 provides for summoning the applicant to appear for an oral test to ascertain whether he is conversant with the duties and responsibilities, etc., of the driver of a transport vehicle. Experience for a period of one year immediately prior to date of application shall not be necessary in the case of an applicant for authorisation to drive an autorickshaw. Rule 18 provides that licensing authority granting an authorisation shall issue a driver's badge to the applicant on payment of the prescribed fee, endorse the driving licence accordingly and return the driving licence to the holder thereof along with the badge issued. The term 'transport vehicle' is defined under section 2 (33) of the Motor Vehicles Act, 1939, as a public service vehicle or a goods vehicle. Therefore, the autorickshaw which was being driven by the respondent No. 2 before the Tribunal would come within the definition of transport vehicle. In order to drive such a transport vehicle the respondent No. 2 must be having the authorisation evidenced by the badge.