Absence of endorsement in licence is not so fundamental.

(APPEAL against the judgment and decree made in MCOP No.490 of 1995 dated 16.08.1999 on the file of the Motor Accident Claims Tribunal, Principal District Court, Tiruvannamalai.)

The second respondent-Insurer in MCOP No.490 of 1995 on the file of the Motor Accident Claims Tribunal (Principal District Judge), Tiruvannamalai being aggrieved by the award dated 16.08.1999 made therein has filed the above appeal.

2. The learned counsel for the respondent is absent.

3. The only ground on which the above appeal has been filed is that the driver of the LPG tanker lorry bearing registration No.HR38-4456 belonging to the fifth respondent herein and which is involved in the accident causing the death of one Durai, who was the cleaner of the lorry bearing registration No.TMS 3317, was not authorised to drive heavy vehicles carrying hazardous goods as required by Rule 9 of Central Motor Vehicles Rules 1989 (hereinafter referred to as “the Rules”).

4. The learned counsel for the appellant submitted that though the driver of the tanker lorry involved in the accident was holding Ex.R-2-licence to drive a heavy goods vehicle, no endorsement has been made in the driving licence-Ex.R-2 as contemplated in Rule 9(3) of the Rules.

5. Rule 9(1) of the Rules prescribes educational qualifications for drivers of goods carriages carrying dangerous or hazardous goods, period of training, place of training, syllabus, etc., which reads as follows:

“9(1) One year from the date of commencement of Central Motor Vehicles (Amendment) Rules, 1993, any person driving a goods carriage carrying goods of dangerous or bazardous nature to human life shall, in addition to being the holder of a driving licence to drive a transport vehicle, also has the ability to read and write at least one Indian language out of those specified in the VIII Schedule of the Constitution and English and also possess a certificate of having successfully passed a course consisting of following syllabus and periodically connected with the transport of such goods.

Rule 9(2) of the Rules prescribes the procedure for making the application for necessary entries in the driving licence.

Rule 9(3) of the Rules, reads as follows:-

"The licensing authority, on receipt of the application referred to in sub-rule (2), shall make an endorsement in the driving licence of the applicant to the effect that he is authorised to drive a goods carriage carrying goods of dangerous or hazardous nature to human life".

6. A reading of Rule 9(1) of the Rules shows that any person driving a goods carriage carrying goods of dangerous or hazardous nature to human life shall possess the requisite educational qualifications prescribed therein and should undergo the training prescribed therein within one year from the date of commencement of Central Motor Vehicles (Amendment) Rules, 1993. The learned counsel for the appellant submitted that since The Central Motor Vehicles (Amendment) Rules 1993 was brought into force with effect from 26.03.1993 and the accident in question has occurred on 13.02.1995, Rule 9(1) of the Rules can be taken advantage of by the appellant and raise the defence that the driving licence of the driver of the tanker lorry does not contain the necessary endorsement as contemplated in Rule 9 of the Rules and avoid its liability.

7. In support of the submissions made by the learned counsel for the appellant he relied upon a Division Bench decision of this Court rendered in the case of Kumar (Minor), rep. by his father & next friend Manickam Vs. National Insurance Company Limited reported in 2002 (4) Law Weekly 691. In the said decision it is observed as follows:-

“The driving licence which the driver is required to hold when the motor vehicle is used in a public place is the licence to drive the particular type of vehicle and not merely the licence to drive any other type of vehicle. The classification of vehicles in the Act is such that though the heavy passenger vehicle as also the heavy goods vehi