Ramanujam, J.:— This appeal has been filed by the insurer as against the award passed by the Motor Accidents Claims Tribunal, Madras, in O.P 284 of 1975. On 17-3-1975, one Basavanniah along with some of his friends, was making some purchases in the Evening Bazar. At that time, an auto-rickshaw bearing registration No. TMZ 6631, belonging to one Mrs. Chandra and insured with the second respondent, came at a high speed and knocked him down. He sustained head injuries and became unconscious. Immediately he was removed to the General Hospital. Later he succumbed to the injuries on 21-3-1975. On the ground that the driver of the auto-rickshaw was rash and negligent and the accident had occurred due to that rash and negligent driving, the widow and the children of the deceased, filed a claim petition before the Motor Accidents Claims Tribunal, Madras, claiming compensation of Rs. 40,000.

2. The claim was opposed by the owner of the auto-rickshaw, the first respondent and the insurance company, the second respondent with which the auto-rickshaw was insured. The stand taken by them was that the accident occurred solely due to the negligence of the deceased in that he suddenly crossed the road without observing the traffic of the road, that the driver of the auto-rickshaw was not negligent at all and that therefore the respondents are hot liable to pay any compensation. They also contended that the compensation claimed was highly excessive. The second respondent insurance company raised a further defence that the driver of the auto-rickshaw did not possess a valid driving licence to drive the auto-rickshaw as required under S. 3(1) of the Motor Vehicles Act, and there is violation of the policy conditions, in that, a person not authorised to drive the auto-rickshaw as a public carrier, had been allowed to drive the vehicle. Having regard to the defences taken, the following three points were set down for consideration by the tribunal

1. Whether accident occurred due to the rash and negligent driving of the auto-rickshaw:

2. To what amount of compensation the petitioners would be entitled?

3. Whether the driver of the auto-rickshaw was holding a valid driving licence to drive that vehicle and if so whether the second respondent is liable to pay compensation?

3. After analysing the evidence adduced by both parties, the Tribunal held that the accident occurred due to the rash and negligent driving of the auto-rickshaw by its driver and on the second point the Tribunal held that the compensation payable in respect of the accident was Rs. 15,600 in all. On the third point, namely, whether the driver of the auto-rickshaw was holding a valid licence to drive that vehicle, the tribunal took the view that as the driver of the auto-rickshaw has been shown to have possessed a licence for driving a light motor vehicle and the auto-rickshaw being a light motor vehicle, the driver should be taken to have possessed a valid driving licence to drive an auto-rickshaw. In this view, the tribunal held that the insurance company cannot avoid its liability under the policy for the accident in question. Aggrieved by the award of the Tribunal, the insurer has filed this appeal, wherein the only contention raised is, that the driver of the auto-rickshaw which caused the accident, had no valid driving licence to drive the vehicle and that the contrary finding given by the tribunal cannot be sustained in law. Thus the only question that has to be considered by us in this appeal is whether the driver of the auto-rickshaw which was involved in the accident had a valid licence to drive the vehicle. If the driver of the auto-rickshaw had no valid licence, to drive that vehicle, the Insurance Company can avoid its liability under the policy as the policy contemplates, (1) the vehicle being driven by ‘any person who is in the insured's employ and is driving on his order or with his permission’ and (2) ‘the person driving holds a licence to drive the vehicle or has held and is not disqualified for holding or obtaining such a licence.’

4. We are now concerned at this stage with the second condition set out above. The first half of the second contention is not material in this case. The first half refers to the expression ‘the person driving holds licence to drive the motor vehicle’. The tribunal appears to have taken a cursory view of the said clause and has held that as the motor vehicle in this case is an auto-rickshaw and as the driver had a licence to drive a light motor vehicle, which includes auto-rickshaw, the driver should be taken to have a valid licence for driving the vehicle. The tribunal has also relied on the following two decisions in support of its view that the insurance company cannot disown its liability under the policy merely on the ground that S. 3 of the M.V Act has been violated. In the first decision Srinivasa Roadways v. Saroja, (1974) 2 Mad LJ 364 : (AIR 1975 Mad 26) it has been observed that (at p. 129)—

“If, as is in this case, all the conditions laid down in the section are not reproduced in the policy and the policy positively undertakes to cover liability in respect of an accident caused by a person, who though not having an effective licence at the time of the accident, had not been disqualified to hold a licence, the company cannot, in disregard of its policy, fall back upon the section and say that despite the contract it has entered into to the contrary, it must be exonerated of liability.”

5. In Madras Motors General Insurance Co. Ltd. v. Madathi Ammal, (1974) 2 Mad LJ 204 : (AIR 1975 Mad 250), Maharaian J. while dealing with the similar clauses of definition of a driver contained in a policy observed (at p. 252)—

“That the use of the expression “the person driving holds a licence to drive the motor vehicle or has held and is not disqualified for holding or obtaining such a licence” clearly contemplates a person who, although he had obtained a licence which expired prior to the accident, did not hold a valid licence on the date of the accident and yet was not disqualified for holding or obtaining such a licence. The Insurance Company with its great, business experience must have thought it right to cover an accident caused by a person who has had considerable driving experience, and yet due to inadvertence or absentmindedness, has not chosen to renew that licence during the period allowed by law and has been involved in an accident while he had not yet obtained a renewal of the licence. Evidently, the Insurance Company trusts the experienced drivers not to drive the vehicle rashly and negligently, this expectation resting upon their past performance rather than upon the technical but unimportant question whether they have been careful and alert enough to renew the licence within the period allowed by law.”

6. We do not see any light from the said two decisions on the points involved in the present appeal. The question which arises here did not come up for consideration in those two decisions referred to above. The petitioner has also referred to the decision reported in the Public Prosecutor… v. M. Murugesan…., (1955 Mad WN 312) : (AIR 1955 Mad 627) wherein, the driver having licence to drive a light transport vehicle had driven a bus. After referring to the definition of Light Transport Vehicle and Heavy Transport Vehicle, Balakrishna Ayyar, J. held that—

“As the definition of light transport vehicle in S. 2(13) stands, a bus or a taxi, whatever its weight may be, would be a light transport vehicle. Hence the owner permitting a person who had authority to drive only a light transport vehicle to drive the bus is not guilty under S. 5 Motor Vehicles Act.”

7. There also the present question did not arise. S. 2(9) of the Motor Vehicles Act says “Heavy Transport Vehicle” means a transport vehicle the registered axle weight of which exceeds 10,600 pounds or the registered laden weight of which exceeds 14,400 pounds. S. 2(13) of the Act says — ‘Light Transport Vehicle’ means any public service vehicle other than a motor cab, or any goods vehicle other than a heavy transport vehicle or a delivery van”. In that case, the bus involved was found to be not a heavy transport vehicle with reference to its actual weight, either laden or unladen. Therefore, it was rightly held that the person having a licence to drive a light motor vehicle was authorised to drive a bus which had fallen within the definition of a light transport vehicle with reference to its weight. This decision also does not touch the point in question whether a person having licence to drive a light transport vehicle is authorised to drive an auto-rickshaw as a public carrier.

8. This question had come up for consideration before the Division Bench of this court, to which one of us was a party in the National Insurance Co. v. Sugantha Kanthalambal, (1980) 2 Mad LJ 572. In that case also, the vehicle involved was an auto-rickshaw. The driver who drove the auto-rickshaw at the time of the accident had a licence to drive a light transport vehicle. The question arose as to whether on the basis of a licence to drive a light transport vehicle, he is authorised to drive an auto-rickshaw as a public carrier. After referring to the definition of a light transport vehicle and also the provisions of S. 3, read with Sec. 2(13) of the M.V Act, the court has taken the view that even though the driver had a licence to drive a light transport vehicle, he had to obtain a special endorsement to drive such a vehicle as a public carrier as contemplated under S. 3 of the M.V Act and so long as the licence to drive a light motor vehicle does not contain an endorsement authorising the user of the vehicle as public carrier, the driver cannot be said to have a valid licence to drive the auto-rickshaw as a public carrier. Though the said decision applies to the facts of the present case, the learned counsel for the claimants (respondents 1 to 5) contends that in that decision the court has not given due consideration and weight to the definition of a light transport vehicle and that it had given an unnecessary emphasis on S. 3 of the M.V Act and therefore, it requires reconsideration.

9. In this case, the licence possessed by the driver of the vehicle had not been produced. Even though the appellant has called upon the driver as well as the owner of the vehicle, which was involved in the accident to produce the driver's licence by a notice to produce, the licence has not been produced. Therefore, the non-production of the actual licence can lead to an adverse inference that the licence, if produced, would indicate that there has been no endorsement, authorising the licensee to drive the auto-rickshaw as a public carrier. Neither before the tribunal nor before this court, any of the respondents is in a position to assert that the licence in fact contained any such endorsement. We have to therefore proceed on the basis that the licence possessed by the driver of the auto-rickshaw did not contain any endorsement authorising him to drive the auto-rickshaw as a public carrier. It is in this light we have to determine the legal position as to whether the driver of the auto-rickshaw had a licence to drive the vehicle as a public carrier.

10. Section 2(5A) defines a ‘driving licence’ as a document issued by a competent authority under Chap. II authorising the person specified therein to drive a motor vehicle or a motor vehicle of any specified class or description. S. 2(9) of the Act says that ‘heavy motor vehicle’ means ‘a transport vehicle or omnibus the registered laden weight of which or a motor car or tractor the unladen weight of which, exceeds 11,000 kilograms’. S. 2(13) of the Act defines ‘light motor vehicle’ means a transport vehicle or omnibus the registered laden weight of which, or a motor car or tractor the unladen weight of which, does not exceed 4000 kilograms. Section 2(18) defines, ‘motor vehicle’ means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of special type adapted for use only in a factory or in any other enclosed premises. A ‘transport vehicle’ has been defined under Sec. 2(33) of the Act as a public service vehicle or a goods vehicle. Therefore a conjoint reading of Sections 2(13) and 2(33) shows that there are two classes of light transport vehicles used as a public service vehicle and a light transport vehicle which is used as a goods vehicle. It is in this light we have to construe Sec. 3 which imposes the necessity for taking a driving licence in respect of all kinds of motor vehicles. Section 3(1) says that—

“No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to himself authorising him to drive the vehicle and no person shall so drive a motor vehicle as a paid employee or shall so drive a transport vehicle unless his driving licence specially entitles him so to do.”

11. The above section prescribes two requirements— (1) A person should hold an effective driving licence authorising him to drive the vehicle in any public place. (2) No person is permitted to drive a motor vehicle as a paid employee or a transport vehicle unless his driving licence specially entitles him to do so. We have already noted the definition of a transport vehicle which includes a public service vehicle or a goods vehicle. Admittedly in this case, the vehicle has been used as a public service vehicle. As a matter of fact, at the time of the accident, the vehicle was found carrying passengers. Therefore, in addition to the usual licence for driving a motor vehicle in a public place, there should be a further authorisation to the driver to drive the auto rickshaw which falls admittedly under the definition of light motor vehicle as a public service vehicle or a passenger vehicle.

12. The Tribunal has not referred to the definition of the transport vehicle though it refers to the definition of the light motor vehicle, as also the special requirements under Section 3 for getting authorisation to drive the auto rickshaw as a public service vehicle. If we read the definition of transport vehicle in Section 2(33) into Section 3, it will clearly indicate that the mere licence to drive the light motor vehicle, which includes an auto rickshaw, will not enable the holder of that licence to drive an auto rickshaw as a public carrier, for, that requires a special authorisation under the later half of Section 3. Therefore, we are not inclined to agree with the contention of the learned counsel for the petitioner that the decision rendered in (1980) 2 Mad LJ 572 requires reconsideration. In our view, therefore the Tribunal in this case is not right in holding that the driver of the auto rickshaw can drive the auto-rickshaw as a public carrier without a special authorisation as contemplated by Section 3 of the Act. In this case the evidence of P.W 2, who has examined by the claimant, itself clearly indicates, that the driver of the auto rickshaw was prosecuted under Sec. 112 of the M.V Act for having driven the auto rickshaw as a public carrier without a valid licence. From this also it is possible to conclude that the driver of the auto rickshaw, did not have the requisite licence to drive the auto rickshaw as a public carrier.

13. Having regard to the terms of the policy, the learned counsel for the claimants would say that the strict interpretation of the proviso contained in the policy under the head ‘driver’ the driver of the auto rickshaw in this case should be taken to have a licence as he had a licence to drive a light motor vehicle which includes auto rickshaw. But we, are of the view that the expression ‘the motor vehicle’ can only be construed as the motor vehicle which is used as a passenger vehicle. As a matter of fact the policy itself contemplates user of the vehicle as a contract carriage. Therefore the expression ‘the motor vehicle’ should have reference only to the vehicle which is expected to be used as a contract carrier. Unless the driver of the auto rickshaw is shown to have had a licence to drive a contract carriage, he cannot be taken to have a valid licence to drive the vehicle which is insured as a contract carriage. In our view, therefore, the tribunal in so far as it had passed an award as against the insurance company, is in error.

14. The appeal is therefore allowed and the award, so far as the Insurance company is concerned is set aside. There will be no order as to costs. The fact that this appeal filed by the insurance company had been allowed will not affect the liability of the owner of the auto rickshaw as declared by the tribunal. To make the position clear we declare that the compensation as computed by the tribunal is payable by the owner of the auto rickshaw, the 6th respondent. The learned counsel for the appellants represents that pending this appeal, a sum of Rs. 15,600 has been deposited by the Insurance company, in view of the interim order passed by this court. Now as it is held that the insurance company is not liable to pay any compensation in respect of the accident, the insurance company is entitled to withdraw the same.

15. Appeal allowed.