Auto rickshaws can be treated as contract carriage.

The Civil Miscellaneous Appeals are filed by the Insurance Company challenging the finding of the Tribunal with regard to the liability of the Company to pay compensation. C.M.A.No.1163 of 2005 is filed against the award passed in M.C.O.P.No.1285 of 2003 on the file of the Motor Accident Claims Tribunal (Additional District Judge/Fast Track Court No.2) Tirunelveli, dated 20.09.2005. C.M.A.Nos.8 to 12 of 2004 are filed against the award passed in respect of M.C.O.P.Nos.369 to 373 of 2002 on the file of the Motor Accident Claims Tribunal (Sub Court) Tenkasi dated 29.09.2005. Since the question of law and the facts involved are one and the same, all the appeals are taken up together and disposed of by a common judgment.

2. Brief facts leading to the appeal are as follows: On 14.07.2002 at 8.45 a.m., when Velsamy (since deceased) and five others were travelling in an Autorickshaw bearing Registration No.TN-72-U-1175, owned by the second respondent and insured with the appellant-Insurance Company, near Kandasamy Sand Quarry, the driver of the Autorickshaw drove the vehicle in a rash and negligent manner and capsized it. The said Velsamy died on the spot and the rest of the passengers sustained injuries. Legal representatives of the deceased filed M.C.O.P.No.1285 of 2005 and other injured passengers filed separate claim petitions in M.C.O.P.Nos.369 to 373 of 2002 and claimed compensation.

3. The appellant-Insurance Company resisted the claim petition, contending inter alia that the driver of the Autorickshaw did not possess valid and effective licence for driving a transport vehicle at the time of accident and the insured has violated the policy condition. Therefore, the appellant-Insurance Company is not liable to pay compensation.

4. Before the Tribunal, in M.C.O.P.No.1281of 2002, one of the legal representative of the deceased was examined as PW.1 and another witness was examined as PW.2. On behalf of the appellant-Insurance Company, an Officer of Regional Transport Office was examined as RW.1. In M.C.O.P.Nos.369 to 373 of 2002, the injured persons examined themselves as Pws.1 to 5 and Exs.P1 to P10 were marked. On behalf of the appellant-Insurance Company, the driver of the Autorickshaw was examined as RW.1 and an Officer of Regional Transport Office was examined as RW.2.

5. On evaluation of pleadings and evidence, both the Tribunals have fixed the negligence on the part of the driver of the Autorickshaw and held that the appellant-Insurance Company and owner of the vehicle were jointly or severely liable to pay compensation. Aggrieved by the finding with regard to the liability, the Insurance Company has preferred the above appeals.

6. Learned counsel for the appellants submitted that it is evident from Ex.B1 - Driving licence of RW.1, driver of the Autorickshaw that he had licence only to drive light motor vehicle and not a transport vehicle. He further submitted that RW.1 did not possess valid licence to drive the transport vehicle (Autorickshaw) at the time of accident and that therefore, there is violation of policy condition, for which, the Insurance Company is not liable to pay compensation. He further submitted that in the absence of specific endorsement in the licence, one could not plead that the driver had valid driving licence to drive an Autorickshaw. He further submitted that mere perusal of licence of driver (light motor vehicle) itself would disclose that the driver was not authorised to drive an autorickshaw and under such circumstances, the owner of the vehicle has failed to exercise due care and caution in engaging the driver to drive transport vehicle, without valid licence. He further submitted that the Insurance Company has discharged its burden of proving that the insured, viz., owner of the vehicle had violated the policy condition by engaging a person, who did not possess a valid licence to drive the transport vehicle (Autorickshaw) and therefore, it is open to the insurer to raise a defenc