S. B. MAJAGE, J. ( 1 ) CLAIMANTS in MVC No. 253 of 1999, who are the wife and children of deceased Nagappa Jadar and claimant in MVC No. 239 of 1999 who is the injured claimant, being not satisfied with the amount of the compensation awarded to them by the Tribunal under impugned judgment and award, are before this Court requesting to enhance the compensation and also fasten the liability with the Insurance Company as claim against Insurance Company-respondent 2 has been dismissed by the Tribunal. ( 2 ) FACTS in brief are: The appellants-claimants claimed compensation before the Tribunal alleging that on 26-12-1998 there was accident of maxi Cab (Tempo) belonging to the 1st respondent and insured with the 2nd respondent and in that, Nagappa Jadar died whereas claimant in mvc No. 239 of 1999 has sustained injuries and consequently the wife and children of deceased Nagappa and injured Shivappa are entitled to compensation from the driver, owner and insurer of said vehicle i. e. , respondents. ( 3 ) THE driver and owner of the vehicle filed objections denying the material averments besides rashness and negligence in driving Tempo by its driver and other particulars and pleaded that as the vehicle had insurance coverage issued by the 2nd respondent-Insurance Company and 3rd respondent had a valid driving licence to drive the vehicle, the insurance Company is liable to indemnify. ( 4 ) ON the other hand, the 2nd respondent-Insurance Company filed objections stating that the 3rd respondent-driver had no valid driving licence to drive the Tempo and the 1st respondent-owner of the vehicle had violated the terms of policy by carrying more passengers than permitted and as such it is not liable to pay compensation and requested to dismiss the claims on that ground and other grounds. ( 5 ) THE Tribunal, on considering the evidence of witnesses examined by both sides besides documents marked for both, observed that the driving licence issued to the 3rd respondent was fake, it could be said that he had no D. L. and as such the Insurance Company is not liable to indemnify the owner-1st respondent and consequently directed the 1st respondent-owner to pay compensation awarded to the claimants. It is against the said judgment and award of the Tribunal, the claimants-appellants are before this Court. It is against the said judgment and award of the Tribunal, the claimants-appellants are before this Court. ( 6 ) IT was vehemently argued for the claimants-appellants that as long as the vehicle had valid insurance coverage, Insurance Company cannot avoid its liability even if assumed as observed by the Tribunal that the driving licence of the 3rd respondent-driver was fake unless it is pleaded and proved that there was collusion between the driver and owner and the owner of the vehicle knew that the driver had a fake licence when permitted the driver to drive the vehicle. So also, it was submitted that the amount of compensation awarded is less and requires to be enhanced. The learned Counsel for the 1st respondent-owner of the vehicle supported said argument. However, learned Counsel for the 2nd respondent-Insurance Company has strongly supported the impugned judgment and award since, according to him, when it was established that the 3rd respondent-driver had a fake driving licence, Insurance Company could not have been directed to indemnify the owner or pay compensation to the claimants. It was also submitted that at any rate, Insurance Company, could be held entitled to recover the same from the owner after payment and compensation awarded is just and reasonable and as such the impugned judgment and award do not require to be disturbed. Perused records carefully. ( 7 ) THE points for consideration are: 1. Whether the Insurance Company is liable to indemnify the owner and pay compensation to the claimants? and 2. Whether the compensation awarded is just or requires enhancement ? ( 8 ) POINT No. 1.-Before going to consider the evidence adduced besides argument advanced for the parties, it is but necessary to refer to the pleadings for the point on hand. The respondents 1 and 3 i. e. , owner and driver have filed joint objections pleading that the vehicle involved in the accident was insured with the 2nd respondent-Insurance company and 3rd respondent-driver had valid driving licence issued by r. T. O. and as such if at all claimants are entitled to compensation, it could be recovered from the Insurance Company. On the other hand, the insurance Company has pleaded that the driver of the Tempo was not holding valid and effective driving licence as on the date of accident and as per the Insurance Police issued, its liability is subject to legality and validity of the driving licence, permit and insurance coverage of the vehicle involved in the accident besides taking a specific stand that the driver was not possessing D. L. at the time of the accident and as such it is not liable to pay compensation. With these pleadings, enquiry proceeded. ( 9 ) FOR the respondents, the respondent 3-driver has not been examined, but the owner-respondent 1 has examined himself as R. W. 3 whereas, the respondent 2-Insurance Company has examined R. Ws. 1 and 2 and got marked Exs. R. 1 to R. 6 in support of its case that the respondent 3-driver had no valid driving licence. On the evidence adduced, the Tribunal held that the respondent 3 had no driving licence and as such the Insurance Company is not liable to pay compensation. ( 10 ) BUT, according to the learned Counsel for the claimants-appellants, the Insurance Company has failed to prove that the respondent 3-driver did not possess any driving licence. Relying on a decision of Madhya Pradesh High Court in the case of New India assurance Company Limited v Bhagwan Das and Others, he submitted that mere production of a certificate issued by R. T. O. that licence, said to have been issued by it to the driver of the offending vehicle, had not been issued by that office, is not sufficient to avoid the liability of insurance Company. So also placed reliance on a decision of the supreme Court in the case of District Magistrate and Another v G. Jothisankar , wherein, it is held that telegrams have no authenticity and as such, cannot be taken into consideration. This is because, the tribunal had relied on the letter at Ex. R. 2 and telegram at Ex. R. 5 in support of its case and evidence that the driving licence at Ex. R. 1 is fake and hence, the respondent 3-driver could be held as not possessing any driving licence as on the date of accident. ( 11 ) IT is true that said decisions are on the points referred to therein and support the claimants to some extent. R. 1 is fake and hence, the respondent 3-driver could be held as not possessing any driving licence as on the date of accident. ( 11 ) IT is true that said decisions are on the points referred to therein and support the claimants to some extent. But, in those decisions, there was no oral evidence to corroborate the documents produced whereas, in the case on hand, there is oral evidence of R. W. 1 with regard to letter at ex. R. 2 and of R. W. 2 for the telegram at Ex. R. 5 with absence of any suggestion to R. W. 2 that Ex. R. 5 is a created document, though suggested so to R. W. 1 for Ex. R. 2. So, in the facts and circumstances, besides evidence available on record, said decisions do not help the claimants or respondent 1 or 3, particularly when respondent 3-driver has not stepped into the witness-box and respondent 1, though examined as R. W. 3, has not challenged the authenticity of Exs. R. 2 and r. 5 in his evidence. Added to that, after investigation into the accident in question, Police have filed charge-sheet against the driver alleging that he drove the vehicle without holding a valid driving licence and caused the accident, as could be seen from the copy of charge-sheet at ex. R. 3. Not only that, the driver was found guilty of the said charge, when tried before the Court, as is clear from Ex. R. 6. So, no error could be found in the finding recorded by the Tribunal that the respondent 3-driver was not possessing a valid driving licence at the time of accident. In view of the above, whether the Insurance Company could be asked to pay compensation or not? falls for consideration. ( 12 ) IT may be noted that the stand of the Insurance Company in its objections was that the respondent 3 had no valid driving licence and as such it is not liable to pay compensation. But, neither there is any pleading nor evidence of the Insurance Company that in spite of having had knowledge of not possessing a driving licence or having a fake licence by the driver, the owner-respondent 1 had permitted the driver to drive the vehicle. But, neither there is any pleading nor evidence of the Insurance Company that in spite of having had knowledge of not possessing a driving licence or having a fake licence by the driver, the owner-respondent 1 had permitted the driver to drive the vehicle. ( 13 ) IN the case of United India Insurance Company Limited v Lehru and Others, the Supreme Court has observed as under:"20. When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a Competent Authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that Insurance Companies expect owners to make enquiries with RTOs, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149 (2) (a) (ii ). The Insurance Company would not then be absolved of liability. If it ultimately turns out that the licence was fake, the insurance Company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly, even if such a case the Insurance Company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skandia Insurance Company Limited v Kokilaben chandravadan, AIR 1987 SC 1184 : (1987)2 SCC 654 , Sohan Lal passi v P. Sesh Reddy, : AIR 1996 SC 2627 : (1996)5 SCC 21 : 1996 scc (Cri.)871 and New India Assurance Company, Shimla v kamla, AIR 2001 SC 1419 : (2001)4 SCC 342 : 2001 SCC (Cri.) 701. We are in full agreement with the views expressed therein and see nc reason to take a different view". We are in full agreement with the views expressed therein and see nc reason to take a different view". ( 14 ) EVEN, in the case of New India Assurance Company, Shimla v kamla and Others, the Supreme Court has held, that even if the driving licence is found fake, the insurer has to pay compensation to third parties , as the policy of insurance is issued in respect of the vehicle. Thus, now the law is settled that even if the driving licence is found fake, the Insurance Company has to pay compensation to the third parties ( 15 ) BUT, the learned Counsel for the Insurance Company relied on a decision of Madhya Pradesh High Court in the case of Prem Kumari and others v Prahlad Dev and Others , in support of his argument that in such a case, where the driver was not having a valid and effective driving licence as on the date of accident, no liability could be fastened on the Insurance Company. It is true that said decision supports his argument. However, in that decision, it was held that the decisions in the cases of Kamla and Lehru, are not applicable to the case on their hand. But, no reasons are given for that. At any rate, said decision does not lay a correct proposition of law and, in fact, it runs against the said two decisions of the Supreme Court, and hence, cannot be accepted. ( 16 ) IN the case of Pramod Kumar Agrawal and Others v Smt. Mushtari Begum and Others, relied on for the Insurance Company, the supreme Court has held that the Insurance Company cannot avoid its liability to pay compensation, though it could proceed against the insurer-owner of the vehicle. So also, in the case of Rangappadas v K. Srinivasa Rao and Others, relied on for the Insurance Company, this court has held that the Insurance Company cannot avoid its liability on the ground that the driver of offending vehicle did not possess a valid driving licence. So, the said decisions, relied on for the Insurance company, do not help it to avoid its liability. So, the said decisions, relied on for the Insurance company, do not help it to avoid its liability. On the other hand, they support the case of claimants-appellants, that even if the driving licence of the driver is held as fake, or he had no driving licence at all, the insurance Company cannot avoid its liability, unless it is shown that the owner of the vehicle had knowledge that the driver had a fake driving licence or, that the driver had no driving licence at all. ( 17 ) HOWEVER, neither there is any pleading nor evidence on record for the respondent 2-Insurance Company that the respondent 1-owner had knowledge that the respondent 3-driver had no driving licence or, had a fake driving licence and in spite of that, entrusted the vehicle to him to drive. Even, no suggestion was made to that effect to the owner, examined as R. W. 3. So, in the facts and circumstances of the case, the respondent 2 cannot avoid its liability to pay compensation to the claimants-third parties. ( 18 ) OF course, placing reliance on the decisions in the cases of pramod Kumar Agrawal and Rangappadas, it was argued for the insurance Company that if it is directed to pay compensation to the claimants, a direction may be given against the respondent 1-owner so that it could recover the compensation from him. ( 19 ) ON the other hand, it was argued for the respondent 1-owner that even though he has not challenged the judgment and award, he cannot be directed to indemnify the Insurance Company. According to him, in view of Order 41, Rule 33 of the CPC, not filing cross-objections or appeal challenging the impugned judgment and award by him does not come in the way of this Court in granting relief. ( 20 ) IT is well-settled that even if a respondent has not filed appeal or cross-objections challenging the finding of the Trial Court, the Appellate court can grant relief to such a respondent or between the respondents, under Order 41, Rule 33 of the CPC. If need be, reference can be had to the decision of the Supreme Court in the case of Mahant Dhangir and another v Shri Madan Mohan and Others , wherein, it is held thus:"15. . . . . If need be, reference can be had to the decision of the Supreme Court in the case of Mahant Dhangir and another v Shri Madan Mohan and Others , wherein, it is held thus:"15. . . . . IF the cross-objection filed under Rule 22 of Order 41, cpc, was not maintainable against the co-respondent, the Court could consider it under Rule 33 of Order 41, CPC. . . . . . . The appellate Court could exercise the power under Rule 33 even if the appeal is only against a part of the decree of the lower Court. The Appellate Court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any appeal or objection. The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The Appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The Appellate Court could also pass such other decree or order as the case may require. The words "as the case may require" used in Rule 33 of Order 41 have been put in wide terms to enable the Appellate Court to pass any order or decree to meet the ends of justice. What then should be the constraint? We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraints that we could see may be these : That the parties before the lower Court should be there before the Appellate Court. The question raised must properly arise out of judgment of the lower Court. If these two requirements are there, the Appellate Court could consider any objection against any part of the judgment or decree of the lower court. It may be urged by any party to the appeal. It is true that the power of the Appellate Court under Rule 33 is discretionary. But, it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. . . . . . . ". Same has been reiterated in the case of Panna Lal v State of Bombay and Others. But, it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. . . . . . . ". Same has been reiterated in the case of Panna Lal v State of Bombay and Others. ( 21 ) FOR the respondent 1-owner, reliance was placed on a decision of delhi High Court in the case of Sqdn. Ldr. D. D. Upadhayay and Others v Uttar Pradesh State Road Transport Corporation and Another , besides a decision of Allahabad High Court in the case of New India assurance Company Limited, Saharanpur v Shri Sudesh Bhalla and others. ( 22 ) BUT, in the case of Sqdn. Ldr. D. D. Upadhayay Delhi High Court has observed that the decision in the case of Shri Sudesh Bhalla, cannot be taken to lay down the proposition that a respondent, not filing even cross-objections or having failed to file an appeal, can have the entire judgment re-opened on a question of law, as was sought to be done in that case namely, right of a husband to have compensation for loss of consortium or services of the wife. Thus, it does not help the respondent 1, though the other decision helps him. Further, in view of the decisions of the Supreme Court referred to above, regarding the scope of Order 41, rule 33 of the CPC, there can be no doubt to hold that an Appellate court could grant relief to a respondent or between the respondents, though not filed an appeal or cross-objections. But, the question is whether, in the present case, it could be done? ( 23 ) SO far as the respondent 2-Insurance Company is concerned, as the impugned judgment and award were not at all against it, it was not necessary for it to challenge the same and as such, when this Court is reversing the judgment and award, the evidence on record, on which the insurance Company relies, could be taken into consideration to hold as to whether or not, it is liable to pay compensation. However, same cannot be said against the respondent 1-owner, who has not challenged the judgment and award passed against him, more so, when he himself has produced the record of driving licence at Ex. R. 1 before the tribunal, which was found to be not genuine i. e. , fake. However, same cannot be said against the respondent 1-owner, who has not challenged the judgment and award passed against him, more so, when he himself has produced the record of driving licence at Ex. R. 1 before the tribunal, which was found to be not genuine i. e. , fake. At the same time, it cannot be forgotten that the evidence will have to be appreciated in the light of pleadings and, if there is no pleading, evidence brought on record cannot be looked into. As noted already, neither there is any pleading or evidence adduced by the parties to the effect that the respondent 1-owner knew that the respondent 3-drier had a fake driving licence or had no valid driving licence and in spite of that, he had entrusted the vehicle to that driver, to exonerate the Insurance company from its liability. It is not enough for the Insurance Company to prove that the driver had no driving licence or had a fake driving licence, but what is required to be proved is the knowledge of that fact with the owner to recover from the owner. So, in the facts and circumstances of the case, it could be said that the Insurance Company is liable to pay compensation and it could recover the same from respondent 1-owner, provided it proves that the respondent 1-owner was in collusion with the driver and that when the vehicle was entrusted to the driver, the respondent 1-owner knew that the driver had no driving licence or had a fake driving licence. As such, it may not be proper for this Court to direct the respondent 1-owner to pay the amount to the insurance Company, as the said point requires further adjudication. Be that as it may, irrespective of its right to recover the same from the owner in accordance with law on proof of the facts referred to above, the insurance Company cannot avoid its liability to pay compensation to the claimants-appellants. Same is the view of Himachal Pradesh High Court in the case of National Insurance Company Limited v. Ishroo Devi and others. But, to protect the interest of the Insurance Company, charge of the claim of Insurance Company requires to be shown in the records of the vehicle i. e. , R. C. etc. Same is the view of Himachal Pradesh High Court in the case of National Insurance Company Limited v. Ishroo Devi and others. But, to protect the interest of the Insurance Company, charge of the claim of Insurance Company requires to be shown in the records of the vehicle i. e. , R. C. etc. , but such charge ceases to be in force if no claim is made by the Insurance Company to recover from the respondent 1-owner within a period of six months from 1-3-2005. ( 24 ) POINT No. 2.-The deceased Nagappa was aged about 28 years at the time of his accident. According to his wife examined as P. W. 3, he was doing agriculture earnings Rs. 60,000/- to 70,000/- per year besides getting daily wages whenever he was free from agricultural work and thereby getting Rs. 50/- per day. It is also stated by her that he used to go to daily wages at least 15 days in a month. So, the Tribunal took the earning capacity of the deceased at Rs. 75/- per day and assessed loss of dependency on that basis after deducting l/3rd towards his personal expenses and arrived at Rs. 2,88,000/ -. Having regard to the material on record and absence of any record showing that the deceased did possess and was managing agricultural lands, Rs. 75/- taken by the Tribunal as daily earning of the deceased cannot be said to be wrong or less. As such, the said amount arrived at by the Tribunal towards loss of dependency does not require to be disturbed. ( 25 ) OF course, while awarding compensation of Rs. 5,000/- towards funeral and obsequies ceremony, the Tribunal has not awarded any compensation towards loss to estate, loss of love and affection besides loss of consortium to the claimants, who are no other than the wife and minor children of the deceased. But, it may be noted that the Tribunal has awarded interest at Rs. 9% per annum on the amount of compensation awarded by it though, in death cases, rate of interest normally awarded is Rs. 6% and hence, in my opinion, said rate of interest awarded by the Tribunal takes care of the amount of compensation, not awarded towards loss to estate, loss of consortium and loss of love and affection and hence, no separate compensation need be awarded. 6% and hence, in my opinion, said rate of interest awarded by the Tribunal takes care of the amount of compensation, not awarded towards loss to estate, loss of consortium and loss of love and affection and hence, no separate compensation need be awarded. In the above view, the amount awarded by the Tribunal does not require to be enhanced in M. F. A. No. 1201 of 2003. ( 26 ) COMING to the compensation awarded in M. V. C. No. 239 of 1999, the claimant-injured had sustained fracture to both bones of his right ankle, he was in-patient in the hospital for 23 days and the Doctor examined as P. W. 2 has stated that he had 30 to 35% permanent disability in the lower limb. However, P. W. 2 has stated that the claimant can attend to his normal works by sitting, though feel some discomfort when he walks. ( 27 ) THE Tribunal has awarded compensation of Rs. 15,000/- only towards pain and suffering, which is certainly on higher side and as such, the same could be enhanced to Rs. 25,000/ -. ( 28 ) SIMILARLY, a sum of Rs. 1,000/- awarded towards loss of earning during treatment period requires to be enhanced because, admittedly, he was in-patient for 23 days and as such, it could be inferred that even after discharge from hospital, he must have had follow-up treatment or bed rest at least for some days and consequently, he must not have gone for work at least for 45 to 60 days. So, taking the earning of the injured at Rs. 1,500/- per month, a sum of Rs. 4,000/- could be awarded towards loss of earning during treatment period. ( 29 ) SO also, Rs. 500/- awarded towards medical expenses could be increased to Rs. 6,000/-, which would take care of even medical expenses incurred even after discharge from hospital and amount spent on follow-up treatment besides nourishing food, etc. ( 30 ) AS noted already, at the time of accident, the claimant was aged about 28 years and as such, he has a long life to lead but with certain extent of disability on account of injuries sustained in the accident. However, the Tribunal has opined that there is every chance of gradual disappearance of the disability of the claimant in course of time on account of his young age. However, the Tribunal has opined that there is every chance of gradual disappearance of the disability of the claimant in course of time on account of his young age. But, this observation or finding of the Tribunal is not supported by any evidence, though Doctor has been examined as p. W. 2. Hence, as against Rs. 5,000/- awarded by the Tribunal towards temporary physical discomfort, a sum of Rs. 10,000/- could be awarded towards loss of amenities and discomforts to the claimant in his remaining part of life. ( 31 ) IN the above view, the claimant is held entitled to compensation of Rs. 45,000/- as against Rs. 21,500/- awarded by the Tribunal, but held that he is not entitled towards loss of earning in future as the material and evidence on record do not show that his capacity to earn is effected on account of injuries sustained in the accident. However, the rate of interest awarded does not require to be disturbed as, in injury cases, the usual rate of interest awarded is Rs. 9% per annum. In the result, both the appeals are allowed in part holding that the second respondent-Insurance Company is liable to pay compensation along with the first respondent-owner of the vehicle, but the second respondent-Insurance Company is directed to pay compensation to the claimants. Accordingly, in M. F. A. No. 1201 of 2003, the impugned judgment and award stand modified to the said extent keeping intact in other respects without enhancing the compensation awarded whereas, in M. F. A. No. 1202 of 2003, the appellant-claimant is held entitled to compensation of rs. 45,000/-, as against Rs. 21,500/- awarded by the Tribunal, modifying the compensation awarded, but keeping rest of the things intact. Thus, the impugned judgment and decree stand modified to the said extent. Further, charge of the claim of the Insurance Company over the vehicle is ordered to be shown in the R. C. and other records of the vehicle till that claim is settled, if such a claim is made within 6 months from 1-3-2005. Accordingly, impugned judgment and awards stand modified. Parties to bear their costs. Draw up award accordingly. --- *** --- .