1. Appeal by the insurance company under S.173 (1) of the Motor Vehicles Act, 1988 (for short, 'the Act'), to wriggle out of the joint liability in terms of the order and award dated 14.6.2010 passed in M.V.C. No. 544 of 2006, on the file of Additional Civil Judge & A.M.A.C.T., Ranebennur, on the most frivolous and cantankerous ground of the person who was driving the vehicle, an auto cab, permitted to carry three passengers in addition to the driver, was not duly licensed to drive that vehicle, though such person did hold a valid licence to drive a 'transport vehicle' as endorsed on the very licence.

2. It is for making home this contention that Mr. S.K. Kayakamath, learned counsel for the appellant, has very vehemently contended that the condition of the policy was that the driver driving the vehicle covered under the insurance should hold a valid licence; that a defence to the effect that the driver did not hold a valid licence is available to the insurance company even in terms of the provisions of S.149 (2) (a) (ii) of the Act, reading as under:

“149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks. -

xxxx xxxx xxxx (2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given, the insurer had notice through the court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:

(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:

xxxx xxxx xxxx

(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or”

and, therefore, submits that this provision read with the provisions of S.10 and S.11 of the Act and the definition of 'motor - cab' as found in sub-section (25) of S.2 of the Act, clearly indicates that the person had not been expressly licensed to drive an autorickshaw / motorcab and the vehicle of this description can be fitted into clause (e) of sub-section (2) of S.10 of the Act, which provides that an endorsement in respect of the motor vehicle of specified description should be mentioned in the licence; that the driver's licence expressly lacking this endorsement, viz., that the driver is licensed to drive an auto - rickshaw / motorcab, it should be concluded that the person was not duly authorised or licensed to drive an autorickshaw and, therefore, the insurance company is not liable to reimburse the insured and to support this argument also refers to the provisions of R.16 of the Central Motor Vehicles Rules, 1989 (for short, 'the Rules'), the issue of a badge and a further endorsement being made on the licence for having issued it and submits that a non - endorsement of the issue of badge on the licence amounts to a defect in the licence and, therefore, it should be inferred that the person did not have a valid licence to drive even a transport vehicle as per the licence for not containing an endorsement on the licence to the effect that the badge was issued.

3. While the first contention that the driver of the autorickshaw was not expressly licensed to drive a vehicle of the nature in terms of the licence appears to be so on a cursory glance and to the eyes of a lay person, as the specific mention of the word either 'autorickshaw' or 'auto cab' is conspicuously absent on the licence, the argument of Mr. S.K. Kayakamath, learned counsel for the appellant, is that for this reason, though the pers