1. National Insurance Company is the appellant in both the appeals. The Insurance Company is challenging its liability. Since the issue is one and the same in both the appeals, they are being disposed of by the following common order.

2. First I shall take up C.M.A No. 903 of 1992, which is filed against the award of the Motor Accident Claims Tribunal (Additional Sub Judge), Tirunelveli in M.C.O.P No. 65 of 1990 wherein respondents 1 to 3 herein have secured an award for Rs. 2,92,352 in their favour. C.M.A No. 402 of 1992 is against M.C.O.P No. 145 of 1990 on the file of Motor Accident Claims Tribunal (District Judge), Dindigul wherein the first respondent herein secured an award of Rs. 1,00,000 as compensation.

3. Heard the learned counsel for the appellant and the respondents.

4. The only point for consideration is whether the insurance company is liable to pay the award amount in the absence of special endorsement for driving tourist car in the driving licence of the driver concerned. It is the definite case of the learned counsel for the appellant that inasmuch as the vehicles, in question are tourist taxi, in the absence of special endorsement as per Rule 169-A (7) (x) of the Tamil Nadu Motor Vehicles Rules, 1989 read with permit conditions attached to the vehicle and in view of the terms and conditions of the policy, they are not liable to pay any amount in the event of violation of the above mentioned statutory and policy conditions.

5. In order to appreciate, I shall refer the relevant provisions. Section 3 of the Tamil Nadu Motor Vehicles Act, 1939 reads as follows:

“Section 3. Necessity for driving licence- No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to himself authorizing him to drive the vehicle unless his driving licence specifically entitles him so to do.”

Rule 169-A (7) (x) of the Tamil Nadu Motor Vehicles Rules reads as followed:-

“ 169-A. Guiding principles for the grant of tourist maxi cab and motor cab Permits: (7) The Regional Transport Authority or its secretary, if it decides to grant the permit for a tourist maxi cab or tourist motor cab shall attach to the permit the following conditions and also such other conditions as may be applicable to contract carriages as it deems fit-

(i) x x x

(x) that the vehicle shall be driven only by the driver who obtains authorization to drive a transport vehicle from the licensing authority in the state”

Apart from this, it is also relevant to mention the Permit Conditions, more particularly, additional condition No. 9 as seen from Ex. R-3 is as follows:-

“Additional conditions for the tourist vehicles including tourist maxi cab permits. (1) x x x

(9) The vehicle shall be driven only by those drivers who obtain special authorization to drive tourist maxi cab and tourist motor cab from the licensing authority in the State.

6. By pointing out the above mentioned provisions as well as permit conditions and Insurance Policy, the learned counsel for the appellant would contend that the person who drove the vehicle in question must have a valid licence in terms of the above referred provisions. In M.C.O.P No. 65 of 1990, the licence of the driver of the tourist car T.M.R 2229 has been marked as Ex. R-1. Ex. R-2 is the xerox copy of the permit. Ex. R-3 is the conditions for contract carriages. Ex. R-4 is the insurance policy for the period 21-7-89 to 20-7-90. Ex. R-5 is the claim form and Ex. R-6 is the R.C Book relating to ambassador car T.M.R 2229. By placing the above documents, it is contended that in the absence of special endorsement to drive a tourist car, in the light of the terms and conditions of the Policy, there is no obligation on the part of the insurance company to indemnify the loss caused to the owner of the vehicle.

7. Mr. K. Ranganathan very much relied on a Division Bench decision of this Court reported in E. Enjanadevi v. Arumugham, 1983 ACJ 625. No doubt, in that case also, a tourist car met with an accident. Its driver had the licence to drive the car, but no endorsement was made on the licence enabling him to drive tourist car. The Division Bench in the light of Section 96 (2) and (3) (1) of Motor Vehicles Act, 1939, came to the conclusion that the driver was not having a valid licence to drive tourist car, therefore the vehicle should have come under the definition of Section 3 of the Motor Vehicles Act. After arriving at such a conclusion, the Division Bench has held that the insurance company is not liable to meet any portion of the claim. After referring to the said decision, (V. Ratnam) J (as His Lordship then was) has also taken the very same view in a decision reported in United India Insurance Co., Ltd., v. Palaniammal, 1991 ACJ 434. After referring to the above two decisions, Govardhan J. has also taken the same view in Oriental Insurance Company Limited v. Angammal, 1997 ACJ 594. Likewise, in respect of question relating to classification of varies vehicles, in National Insurance Company Ltd., v. Rangasamy, ILR 1997 (1) Mad. 731, I answered the question in favour of the Insurance Company. The above said catena of decisions coupled with the statutory and permit and policy conditions support with the statutory and permit and policy conditions support the case of the insurance company. The said legal position is also applicable to the other appeal, namely, C.M.A 402 of 1992.

8. On the other hand, Mrs. Litta Srinivasan learned counsel for the respondents 1 to 3 in CMA No. 903 of 1992 by drawing my attention to Section 2 (35), 2 (47) of the Motor Vehicles Act, 1988 as well as Ex. R-1, would contend that in the absence of specific reference in the Policy of Insurance and the driver having been complied with the statutory requirements, the insurance company cannot escape from its liability. The very same contention has been raised by Mr. Nedunchezhian, learned counsel for first respondent in C.M.A 402 of 1992. Since the accident took place after the commencement of the Motor Vehicles Act, 1988, we are concerned with the provisions therein. Section 2 (47) defines “ transport vehicle”. It means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. As defined in Section 2 (35), “ public service vehicle” means any motor vehicle used or adapted to be used for the carriage of passengers for jore pr reward, and includes a maxi-cab, a motor- cab contract carriage, and stage carriage. It is clear that “transport vehicle” means and includes “a public service vehicle” and it (public service vehicle) includes maxi cab, a motor - cab etc. Now I shall consider Ex. R-1 which is xerox copy of driving licence of one M. Vetrivel. At page 8 it has been stated that the holder of the licence is authorised to drive transport vehicle with effect from 3-10-88. This authorisation has been enorsed on 10-10-88 by the Assistant Licensing Authority, Tirunelveli.

The endorsement is as follows:-

“R. No. 55286/88.Fac No. SFA 0198232

dated 31-03-88 at Palai.

Authorised to drive Transport vehicle (Italics supplied)

w.e.f 7-10-88 and Badge NO. 26279

TNV is issued. Metal Badge to be issued on receipt of supply.

Sd/-XXX

10-10-88

Asst. Licensing Authority Tirunelveli.”

It is clear from the above endorsement that the driver if authorised to drive transport vehicle even with effect from 7-10-88 i.e, well prior to the date of accident. I have already extracted the definition of the words “transport vehicle” which means a public service vehicle which in turn means and includes a maxi-cab and a motor-cab. Maxi-cab is defined in section 2(22) as follows:-

““Maxi cab” means any motor vehicle constructed or adapted to carry more that six passengers, but not more than twelve passengers, excluding the driver, for hire or reward.”

Motor cab is defined in Section 2(25) as follows:-

“Motor cab” means any motor vehicle constricted or adapted to carry not more that six passengers excluding the driver for hire or reward.”

In the light of the fact that the driver concerned in M.C.O.P 65 of 1990 is having a valid endorsement to drive a “transport vehicle” even prior to the date of accident, in the light of the definitions of the expression “transport vehicle”, “public service vehicle”, “maxi cab” and “motor cab” as defined in Section 2(47) (35) (22) and (25), I am of the view that he satisfies the statutory requirements on the date of the accident. No doubt, he was not having special endorsement to drive a tourist car in terms of Clause 9 of the Special Permit conditions. In this regard Mrs. Lita Srinivasan, learned counsel for the respondents 1 to 3 in C.M.A No. 903 of 1992, has very much pressed into service a Division Bench decision of this Court reported in Dhanarj v. Rubia, 1992 ACJ 84. An earlier division Bench decision of this Court reported in E. Enjanadevi v. Arumugham, 1983 ACJ 625 was brought to the notice of Their Lordships of the division bench Dhanarj v. Rubia, 1992 ACJ 84 and Their Lordships after considering the relevant statutory provisions, terms and conditions in the policy and after holding that inasmuch as the policy in question does not insist on the driver having a licence to drive a tourist taxi, distinguished the law laid down in Enjanadevi v. Arumugham, 1983 ACJ 625 and rejected the contention raised by the insurance. Since the factual position in our case as well as before the Division Bench in Dhanarj v. Rubia, 1992 ACJ 84 is almost identical, it is useful to refer the conclusion of Their Lordships arrived at in the said decision hereunder:-

“5. The appeal by the claimants is not only for enhancing the compensation but also for a decree against the insurance company. A similar question arose before this Court in E. Enjanadevi v. Arumugham, 1983 ACJ 625 (Madras). This court posed the following point for determination:

“ The substantial question that arises in this case is to determine whether driver of a tourist car is required under the Motor Vehicles Act, 1939 to have a special authorization in addition to the usual licence to drive a light motor vehicle to enable him to drive the tourist car as contended by the learned counsel for the insurance company.”

The insurance company in that case showed that the vehicle had been registered as a tourist taxi ant it can be used only in connection with the insured's business of running it as a tourist vehicle. Further under the head ‘driver’ the policy in that case had sated that the vehicle could be driven by the insured or by any other person in his employ holding a licence to drive the vehicle. Relying on section 3 (1) of the Motor Vehicles Act, it was held that the driver did not have a valid licence to drive a tourist taxi. It was, therefore, held that the insurance company was not liable to meet the compensation. In the case before us, there is some proof that the driver of TMV 8481 did not have a licence to drive a tourist vehicle. But the question that still remains is whether the policy in this case insisted on the driver having a licence to drive a tourist vehicle. It is not disputed that the driver did have a licence to drive light motor vehicle like the car TMV 8481. Exh.7 is the policy issued by the second respondent company for the period from 28-9-1981 to 27-9-1982. As against the column ‘Business/profession’ the policy is left blank. Therefore the endorsement in the policy that usage in connection with the insured's business does not convey any meaning, because the business is not indicated. This is a vital point of difference between the judgment in E. Enjanadevi v. Arumagham, 1983 ACJ 625 (Madras), because in that case, it is seen from the judgment that the insured's business was running a tourist taxi. Secondly, as against the word ‘driver’ it is stated as follows:

“(a) the insured;

(b) any other person provided he is in the insured's employ and is driving on his order or with his permission:

Provided that the person driving holds a valid driving licence at the time of the accident or had held a permanent driving licence (other than a learner's licence) and is not disqualified from holding or obtaining such a licence.”

The words “ holds a driving licence at the time of the accident” is definitely satisfied in this case because the driver of TMV 8481 did have a licence to drive a light motor vehicle. In the judgment quoted above, it is seen that as against the word ‘driver’, it was sated that the vehicle could be driven by the insured or by any other person in his employ holding a licence to drive the vehicle. The reference to the vehicle is missing in the policy before us. Further, the words “or had held a permanent driving licence (other than a learner's licence) and is not disqualified from holding or obtaining such a licence” suggest that even if the driver had a permanent driving licence and is subsequently not disqualified from holding such a licence, the insurance company cannot escape liability. The words seem to suggest that even if on the date of the accident, the driver did not have a licence the fact that he had earlier a permanent licence and is not disqualified on the date of the accident is sufficient to fasten the liability on the insurance company. Learned counsel for the appellant relied on Rule 5 (b) of the Motor Vehicles Rules to say that the eligibility for getting a licence to drive a tourist vehicle is only one year experience as a driver.

6. Therefore, on facts, we are of the opinion that the judgment in E. Enjanadevi v. Arumugham, 1983 ACJ 625 (Madras), will not apply to the present case. To same effect is the judgment in Canara Motor and General Ins. Co. Ltd., v. Abdul Hamid Khan Saheb, 1984 ACJ 467 (Bombay). In that case, it was no doubt held that the words “held a licence to drive the motor vehicle” appearing in the policy refers more to the type of vehicle rather than the mode of its user. There is thus difference of opinion between our court and the Bombay High Court in this aspect. We do not propose to go into the question as to which view is acceptable because in this case on facts we are satisfied that the policy does not insist on the driver having a licence to drive a tourist taxi. However, we may refer to Houghton v. Trafalgar Insurance Co., Ltd., 1954 (1) QB 247. In that case, it has been held that if there is ambiguity in the policy documents, the ambiguity will be resolved in favour of the insured”.

9. In the light of the said Division Bench decision reported in Dhanarj v. Rubia, 1992 ACJ 84 now I shall refer the policy condition in both the vehicles. Ex. R-4 is the insurance policy marked in O.P No. 65/90. The following statement made in that document is relevant :-

“Persons or classes of person entitled to drive:

the insured. Any other person provided he is in the insureds' employ and is driving on his order or with his permission.

Provided the person driving holds a valid licence to drive the vehicle or has held a permanent driving licence (other than a learner's licence) and is not disqualified from holding or obtaining such a licence.”

Among the said clause, the proviso is relevant. It merely says that the person driving holds a valid licence to drive the vehicle or has held a permanent driving licence (other than a learner's licence) and is not disqualified from holding or obtaining such a licence. Similar clause has been considered by the Division Bench in the decision reported in Dhanarj v. Rubia, 1992 ACJ 84. As observed by Their Lordships, the words “holds a valid licence to drive the vehicle, is definitely satisfied in this case because the driver of the vehicle in question did have a licence to drive a light motor vehicle as well as he was authorised to drive transport vehicle by the competent authority. It is also clear from the other clause as concluded by the Division Bench, the words “or had held a permanent driving licence (other than a learner's licence) and is not disqualified from holding or obtaining such a licence” suggest that even if the driver had a permanent driving licence and is subsequently not disqualified from holding such a licence, the insurance company cannot escape liability. The words seem to suggest that even if on the date of the accident, the driver did not have a licence the fact that he had earlier a permanent licence and is not disqualified on the date of the accident is sufficient to fasten the liability on the insurance company. Accordingly it is clear that as observed by the Division Bench in our case also, the policy does not insist on the driver having a licence to drive a tourist taxi. Though Mr. K. Ranganthan would very much rely on the words “to drive the vehicle”, in the absence of specific clause, namely, “licence to drive a tourist taxi” as pointed out by the division Bench in Dhanarj v. Rubia, 1992 ACJ 84, even the additional condition (additional condition No. 9) may not be helpful to the insurance company. Accordingly, I am unable to accept the argument of the learned counsel for the appellant/insurance company. In view of the factual and legal position, particularly in the light of the decision reported in Dhanarj v. Rubia, 1992 ACJ 84 all the decisions cited by the learned counsel for the insurance company are not helpful to their stand.

10. Regarding C.M.A No. 402 of 1992 in O.P No. 145 of 1990 the insurance policy has been marked as Ex.B-1. Here again, identical clause is there as found in the other policy. Hence, what applies to the earlier case is also applicable to the present case. Again the driver of the vehicle in question was having valid licence to drive light Motor Vehicles as seen from Ex. B-2. Page 5 of the driving licence shows that even on 2-12-82, he was authorised to drive a “ transport vehicle” by the Licensing Authority, Madurai. For the very same reasons mentioned in the earlier case, I am unable to accept the contention raised by the appellant in C.M.A No. 402 of 1992. No doubt, learned counsel for the appellant, pointed out the specific endorsement made on 9-3-91 by the Assistant Licensing Authority, Madurai, wherein the driver concerned was authorized to drive tourist taxi also with effect from 19-3-91, hence it is clear that the driver was not having a valid licence in terms of section 3(1) of the Act as well as permit conditions. When he was already having an authorisation to drive a transport vehicle as per Section 2(47), (35), (22) and (25) of the Motor Vehicles Act, for the same reasons as explained above, it would not affect his case simply because he has obtained the specific endorsement to drive tourist taxi after the accident.

11. In the light of what is stated above, I am unable to accept the argument made by the learned counsel for the appellant in both the appeals and I am in agreement with the conclusion arrived at by the Tribunal in both the cases. Consequently, both the appeals are dismissed; however, there shall be no order as to costs.