Judgment :- Per N. Kirubakaran, J The Insurance Company as the appellant filed this appeal against the award amount of Rs. 3,47,000/- (Rupees Three Lakhs Forty seven (sic) Thousand only) along with interest at the rate of 7.5% per annum and thereby directing the appellant to pay the amount to the claimants and recover the same from the owner and the driver. 2. The brief facts of the case are as follows: One Karuppaiah, a fruit vendor aged about 32 years was trying to cross the road in front of husband on 25. 2003 and the van belonging to the fourth respondent driver rash and negligent manner dashed against him. He was taken to Government Hospital, Melur, where he was died on the same day. The claimants who are widow and minor children filed the claim petition for a sum of Rs. 4,00,000/-(Rupees Four Lakhs only). The appellant altered the claim petition contending that there was a contributory negligence on, the part of the deceased (Para 2 of the counter statement) and that the claimants have to prove that the driver had valid driving licence. Two witnesses P.W.1 arid P.W.2 were examined on Exhibits P-1 to P-5 were marked on the side of the claimant and R.W.1 and R.W.2 were examined and Exhibits R-1 to R-9 were marked on the side of the appellant. 3. The conclusion of the Tribunal is that on appreciation of facts and witnesses, the Tribunal found that (1) The driver of van, the offending vehicle drove the vehicle in rash, and negligent, manner and caused accident which is elaborately discussed in para ‘10’ of the award and (2) The driver of the offending vehicle did not have valid driving licence and fixed the liability on the fourth respondent owner and directed the appellant to pay the compensation and recover the same from the fourth respondent owner. The findings and conclusion in this regard are given in para 11 and 12 of the award. The award was given in the following break-up. a) For Loss of Income: Rs. 3,40,000.00 b) For Funeral Expenses: Rs. 2,000.00 c) For Loss of Consortium: Rs. 5,000.00 Total: Rs. 3,47,000.00 Against the said award only, the present appeal has been preferred by the Insurance Company. 4. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. 5. a) For Loss of Income: Rs. 3,40,000.00 b) For Funeral Expenses: Rs. 2,000.00 c) For Loss of Consortium: Rs. 5,000.00 Total: Rs. 3,47,000.00 Against the said award only, the present appeal has been preferred by the Insurance Company. 4. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. 5. The contention in the appeal: The only point raised in this appeal is that the driver of the van which was insured with the appellant, had no valid driving licence and hence, the Company is not liable to pay any amount as per the order passed by the Tribunal and recover the same from the owner and the driver. 6. The learned counsel for the appellant relied upon the paragraph ‘5’ of the counter affidavit which states that the petitioner must prove himself proved that the van driver had a valid driving licence to drive the category of vehicle at the time of accident. Moreover, he contended that, it is a burden of proof cast upon the owner and the driver and also the claimant to prove that the driver had valid driving licence at the time of accident. 7. It is not in dispute that the accident occurred on 25. 2003 and one Karuppiah died in the accident. The tribunal concluded that the driver of the offending vehicle alone was responsible for the accident. In fact, P.W.1 and P.W.2 gave evidence that the offending vehicle viz., van was driven in rash and negligent manner by one S. Gunasekaran, the driver of the offending vehicle insured with the appellant company. It has to be noted that the driver of the insured vehicle pleaded guilty before the learned Judicial Magistrate, Melur in C.C. No. 377 of 2003. On 6. 2003, he was fined a sum of Rs. 4,000/- (Rupees Four Thousand only) vide judgment passed in C.C. No. 377 of 2003 which was marked as Exhibit P-4 before the Tribunal. When the driver himself pleaded guilty and he was convicted by virtue of Exhibit P-4 for rash and negligent driving, it has to be concluded that the driver of the fourth respondent/owner’s vehicle which was insured with the appellant alone was responsible fear the accident. The judgment in Managing Director, Pandian Roadways Corporation v. K. Narayanan (1998) 3 LW 521 supports the aforesaid conclusion. 8. The judgment in Managing Director, Pandian Roadways Corporation v. K. Narayanan (1998) 3 LW 521 supports the aforesaid conclusion. 8. With regard to valid deriving licence possessed by S. Gunasekaran, the driver of the vehicle, the learned counsel for the appellant as stated above relied upon the counter statement of the appellant and also the evidence of R.W.1, R.W.2 and R.W.3. The statement in paragraph ‘5’ in counter statement does not help the appellant, because there., was no specific denial or statement that the driver had no effective driving licence at the time of accident. Paragraph ‘5’ only denotes that the petitioner had to prove that the driver had valid driving licence. Moreover, the learned counsel also contended that the appellant issued notice to the owner and the driver to produce the driving licence. 9. It is tobe noted that the owner who is the fourth respondent herein remained ex parte. When the person remains ex parte, there is no point in issuing notice to them to produce the document, Exhibit R-3, notice dated 28. 2006 which was issued by the appellants advocate to the owner (i.e. R4) would reveal that the appellant/insurance company had the copy of the driving licence of the driver S. Gunasekaran. In Paragraph ‘3’ of Exhibit R-3, notice dated 28. 2006 which was marked as Exhibit R-3 reads as follows: “3. It is learnt that on perusal of your driver S. Gunasekaran’s driving licence, these was a correction and manipulation. Further it was not clear and legible. It shows that your driver had no effective driving license to drive the category of vehicle at the time of accident.” 10. The aforesaid paragraph would prove that the appellant/insurance company had possession of the driving licence, of the driver S. Gunasekaran and for the reasons best known to them, the appellant/Insurance company had not chosen to file the same before the Tribunal for the reasons best known to them. In that event, adverse inference under Section 114 of the Indian Evidence Act, 1872 has to be drawn against the appellant company for not producing S. Gunasekaran’s driving licence. Section 114 of Indian Evidence Act reads as follows: “Section 114. In that event, adverse inference under Section 114 of the Indian Evidence Act, 1872 has to be drawn against the appellant company for not producing S. Gunasekaran’s driving licence. Section 114 of Indian Evidence Act reads as follows: “Section 114. Court nay presume existence of certain facts-The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particulars case.” Exhibit R-3 would reveal that the appellant had a copy of the licence. Exhibit R-1 is the letter dated 20.11.2006 written by the Motor Vehicles Inspector, Red Hills, Chennai-52 to the Additional Sessions Judge No. I, Madurai wherein it was stated that a copy of the licence dated 2. 2006 of Mr. S. Gunasekaran was produced through R.W.1 who is an Officer in Regional. Transport Office to depose before the Tribunal. 11. R.W.1 himself in his evidence had only spoken about the S. Gunasekaran’s licence which was valid for the period from 2. 2006 to 2. 2009 alone and he did not speak about the earlier period. On the other hand, he only said that the driver S. Gunasekaran did not take licence from that Office. In the cross-examination, on the contrary, he deposed that there was a chance for the driver to renew the licence or to take the licence from some other RTO Office. 12. The date of the accident was 25. 2003. To prove the allegation that on 25. 2003, the driver did not have the proper licence, R.W.1’s evidence does not help the appellant. It is very significant to note that R.W.2, officer of the appellant deposed before the Tribunal that at the time of accident, the driver did not have proper driving licence and the Company issued legal notice under Exhibit R-3 to the owner and driver. As stated above, Exhibit R-3 revealed that the Insurance Company already had possession of the copy of the driving licence and in spite of that R.W.2 It falsely deposed before the Tribunal. Hence, his evidence is false and has to be ignored. As stated above, Exhibit R-3 revealed that the Insurance Company already had possession of the copy of the driving licence and in spite of that R.W.2 It falsely deposed before the Tribunal. Hence, his evidence is false and has to be ignored. It has been consistently held by the Honourable Apex Court that it is the burden cast upon the appellant insurance company to prove that there was material violation of the policy conditions by non-possession of valid licence of the driver at the time of accident, the facts in this case reveals that the appellant was in possession of driving licence of the driver. Section 106 of the Indian Evidence Act, 1972 read as follows: “Section 106-Burden of proving fact especially within knowledge: When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” Thus, the appellant who had knowledge and possession of driving licence of the driver failed to discharge-the same under Section 106 of the Indian Evidence Act, for which appellant alone had to be blamed. .13. The learned counsel for the appellant also relied upon the judgments of the Honourable .Supreme Court namely, National Insurance Co. Ltd. v. Kusum Rai and Others 2006 (1) TN MAC 9 (SC) which says that when there is a breach of condition of contract of insurance policy by invalid licence, the Honourable Apex Court directed the insurance company to pay the claimants and recover same from the insurer. In Sardari and Others v. Sushil Kumar and Others 2008 (1) TN MAC 294 (SC) it has been held that Non-possession of driving licence by driver violation of conditions of contract of insurance and the insurer cannot be made fastened with liability However, in this case, it has been found that the appellant Company did not prove that the driver did not have the valid licence, inspite of the company was found to be in possession of the driving licence The failure of the appellant to mark the licence of the offending vehicle’s driving, in spite of having the copy of the same would prove that the driver had valid licence as proved by Exhibit R-3. Hence, the above two judgments cannot be applicable to the present case. 14. As stated above, the copy of the driving licence of Mr. Hence, the above two judgments cannot be applicable to the present case. 14. As stated above, the copy of the driving licence of Mr. S. Gunasekaran’s as proved by EX.R3 was in possession of Insurance Company and there was no necessity for the appellant Company, to issue notice to the owner and driver and also summon the RTO to prove that the driver did not have proper licence. The appellant Company did not file the copy of the driving licence before the Tribunal in spite of possessing the same. Hence, this Court draws adverse inference against the appellant Company. The Tribunal came to the conclusion that the driver did not have the valid licence and the said findings given by the Tribunal are based on no evidence and the same is set aside. The burden of proof laid only on the appellant Company, especially when it had a copy of the driving licence. The Honourable Supreme Court in the case of National Insurance Company v. Swaran Singh, AIR 2004 SC 1531 : (2004) 3 SCC 297 in para 110 held that mere absence fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the Insurer against either the insured or the third parties. Hence, the appellant Company alone is liable to pay the compensation to the respondents 1 to 3 and not the fourth respondent, owner or the driver as held by the Tribunal. The, Tribunal’s findings that the driver of the offending vehicle had no valid licence are contrary to the evidence on record. Accordingly, the findings are set aside. 15. Nowthe point for consideration whether this Court can on its own set aside the liability fastened on the owner and the pay and recover order in the absence of any appeal by the fourth respondent owner and whether this Court can enhance the compensation in the absence of any appeal/cross appeal by the claimants? The claimant might not have filed an appeal or cross appeal for various reasons like lack of fund etc. When the matter is brought before the Court by any of the parties, in this case appellant insurance company, the Court is supposed to look into the matter thoroughly and meticulously and decide the case as per evidence available on record by applying law as on date. When the matter is brought before the Court by any of the parties, in this case appellant insurance company, the Court is supposed to look into the matter thoroughly and meticulously and decide the case as per evidence available on record by applying law as on date. It is not necessary that the party should appeal against the award/decree/order. If it is found by this Court, material evidence was not considered or irrelevant-materials have been taken to consideration, it is the bounden duty of the Court to correct/modify/alter/reverse the award/decree/order the same and render justice. Court cannot expect somebody to assist it, if the materials available before it. If assistance by the counsel is given, it will make justice rendering process early. .16. Court can not close its eyes when it is found that the order is contrary evidence and law cannot be whittled down by technical plea like lack of appeal by the beneficiaries. If the Courts accept the plea of technicalities to deny the benefits to the deserving people it would go against intention of beneficial legislation. The duty of the Court and Constitutional mandate is to render justice. Its powers cannot be diluted or whittle down by technicalities the judicial arm is long enough to reach the victims to console them to compensate them, unmindful of technicalities. The intention of the legislature is to provide compensation and the duty of the Court is to do complete justice by awarding fair just compensation. In view of the above principle, this Court enhances the award amount when award was not passed as per the Motor Vehicles Act and just and fair compensation was not awarded. 17. The Tribunal directed the insurance company to pay the amount and recover from the insured. Even though, the insurance company filed the appeal, the award is modified by fixing the liability on the insurance company to pay the amount. The Tribunal ought to have awarded the amounts under the conventional headings namely transportation, and loss of love and affection. As no amount was awarded by the Tribunal, this Court in the absence of appeal/cross appeal from the respondents 1 to 3/claimants awards the amount as per the Motor Vehicles Act invoking Order 41 Rule 33 of the Civil Proceed Code. As no amount was awarded by the Tribunal, this Court in the absence of appeal/cross appeal from the respondents 1 to 3/claimants awards the amount as per the Motor Vehicles Act invoking Order 41 Rule 33 of the Civil Proceed Code. It has been already held by the Honourable Supreme Court in a number of cases including three Judges Bench passed in Nagappa v. Gurudial Singh and Others AIR 2003 SC 674 : (2003) 2 SCC 274 , The said judgment is ruling the field and hence in appropriate and deserving cases, the compensation has to be enhanced even in the absence of appeal/cross appeal by the claimants, this Court has got powers to award the amount under conventional headings for which the Tribunal did not award any amount. 18. With regard to compensation, this Court as stated above found that the Insurance Company alone is liable to pay the compensation. Now, what is the amount payable by the Insurance Company to the claimants. As stated above, the appellant/Company only canvassed the point with regard to the liability. No serious contention has been raised with regard to the quantum. On perusal of the paragraph ‘14’ of the award, it is seen that correct figures were arrived on various heads, however, no amount was awarded with regard to ‘transportation’ and loss of ‘love and affection’. Hence, this Court is awarding a sum of Rs. 2,500/- towards transportation and towards loss of love and affection, this Court awards a sum of Rs. 10,000/- to each of the claimants namely R1 to R3 in all amounting to Rs. 30,000/- towards loss of love and affection. 19. The award of the Tribunal is modified as follows to be paid by the appellant/Insurance Company; i) For Loss of Income Rs. 3,40,000.00 ii) For Transportation Rs. 2,500.00 iii) For Funeral Expenses Rs. 2,000.00 iv) For Loss of Consortium (R1) Rs. 5,000.00 v) For loss of love & affection (R1 to R3) Rs. 30,000.00 Total Rs. 3,79,500.00 Thus the compensation Rs. 3,47,000/- (Rupees Three Lakhs Forty Seven Thousand Only) is enhanced to Rs. 3,79,500/- (Rupees Three Lakhs Seventy Nine Thousand and Five Hundred only). As no amount was awarded by the Tribunal, this Court in the absence of appeal/cross appeal from the respondents 1 to 3/claimants awards the amount as per the Motor Vehicles Act invoking Order 41 Rule 33 of the Code of Civil Procedure. 20. 3,79,500/- (Rupees Three Lakhs Seventy Nine Thousand and Five Hundred only). As no amount was awarded by the Tribunal, this Court in the absence of appeal/cross appeal from the respondents 1 to 3/claimants awards the amount as per the Motor Vehicles Act invoking Order 41 Rule 33 of the Code of Civil Procedure. 20. Accordingly, as stated above, the award of Rs. 3,47,000/-(Rupees Three Lakhs Forty Seven Thousand only) is enhanced to Rs. 3,79,500/-(Rupees Three Lakhs Seventy Nine Thousand and Five Hundred only) to be paid by the appellant insurance company and the appeal is disposed of. No costs. Consequently, connected M.P. No. 1 of 2008 is closed. Appeal disposed of.