The requirement of a badge authorizing a person to drive a transport vehicle is mandatory, and the Insurance Company can be absolved from liability if the driver was not duly licensed, as per S.96(2) of the Motor Vehicles Act, 1939.

K.K. Usha, J.

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. The Insurance Company had taken a specific contention before the Tribunal that the driver was not having a proper licence to drive the transport vehicle. Inspite 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. 5759/99 was filed producing photo copy of the driving licence of the 2nd respondent 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, 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 provisions regarding issue of badge authorising a person to drive a transport vehicle is only directory and not mandatory. Under R.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 be licencing authority in form 'LTA' and shall be accompanied by the driving licence and certain other certificates. R.I6 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. R.18 provides that licensing authority granting an authorisation shall issue a driver's badge to 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 S.2(33) of the Motor Vehicles Rules, 1939 as a public service vehicle or a good vehicle. Therefore, the autorickshaw which was being driven by the 2nd respondent before the Tribunal would come within the definition of transport vehicle. In order to drive such a transport vehicle the 2nd respondent must be having the authorisation evidenced by the badge.

4. In the nature of the provisions contained under the above mentioned Rules we cannot accept the contention taken by the appellant that the requirement of a badge is only directory and not mandatory. The document produced by the appellant along with C.M.P. No. 5759/99 would clearly show that the 2nd respondent obtained an authorisation to drive a transport vehicle only on 18.11.1992. The original records produced from the licencing authority, Ottappalam also would show the above fact. It is not disputed before us that the requirement of proper licence for the driver of the vehicle is a condition of the policy Ext. B3. S.96(2) of the Motor Vehicles Act, 1939 provides for the grounds of defence that are available to the Insurance Company. Sub-s.(2)(b)(ii) would enable the Insurance Company to get exonerated iron the liability, if a condition excluding driving by a person who is not duly licensed has been violated.

5. In United India Insurance Company Ltd. v. Gian Chand & Ors., AIR 1997 SC 3824, the Su