Judgment :- 1. Both these Miscellaneous First Appeals have arisen from the same impugned Judgment and Award dated 15.4.2006 passed in MVC No.840/2004 by the learned Judge, Small Causes (SCCH-3) and Member, MACT, Bangalore (hereinafter referred to as ‘Claims Tribunal’ for short). 2. MFA No.11311/2006 is filed by the insurer of the lorry bearing Regn. No.KA-01-AB-7099, which was involved in the accident that occurred on 17.10.2003 at 8.30 a.m. on Sarjapur Main Road, Sulikunte, Bangalore, wherein the 1st respondent in this appeal (claimant) sustained bodily injuries. The insurer has challenged in this appeal the correctness of the findings recorded by the Claims Tribunal in the impugned Judgment as to the negligence on the part of the driver of the said lorry and also as to the liability of the appellant-insurer to pay to the claimant the amount of compensation awarded in his favour. However, the appellant-insurer has not disputed the quantum of compensation awarded by the Claims Tribunal under the impugned Judgment and Award in favour of the injured claimant. 3. The claimant has filed MFA No.11843/2006 seeking enhancement in the compensation on the ground that the amounts awarded under various heads are inadequate and hence they require to be enhanced. 4. I have heard Sri O Mahesh, learned counsel for the insurer (appellant in MFA No.11311/2006) and Sri Shripad V Shastri, learned counsel for the claimant (appellant in MFA No.11843/2006) and perused the entire material found in the original records obtained from the Claims Tribunal. 5. The facts that the motor vehicle accident occurred on the said date, time and place as a result of which, the injured claimant, who was moving on his bicycle at the said place, sustained bodily injuries, are not in dispute. It is also not in dispute that the said lorry was validly insured with the Insurance Co. which is appellant in MFA No.11311/2006 and respondent No.2 before the Claims Tribunal. 6. The main contentions of Sri O Mahesh, learned counsel for the Insurance Co. are: (i) The Claims Tribunal has committed serious error in holding that the said accident was solely due to rash and negligent driving of the said lorry by its driver and therefore the said finding deserves to be interfered with by this Court. 6. The main contentions of Sri O Mahesh, learned counsel for the Insurance Co. are: (i) The Claims Tribunal has committed serious error in holding that the said accident was solely due to rash and negligent driving of the said lorry by its driver and therefore the said finding deserves to be interfered with by this Court. (ii) The Claims Tribunal has not properly considered the recitals in the scene of offence panchanama and also the details shown in the sketch of the scene of offence while recording its finding that the driver of the said lorry was solely negligent in driving the same. (iii) The Claims Tribunal ought to have held that the injured claimant, who was riding his bicycle, also contributed to the occurrence of the said accident by negligently riding his bicycle. (iv) The 1st respondent before the Claims Tribunal viz. S Dhanapala, being the owner of the said lorry committed breach of condition of insurance policy by not complying with the mandatory provisions of Section 5 of the Motor Vehicle Act, 1988 (hereinafter referred to as ‘the Act’ for short) inasmuch as, the driver of the said vehicle drove it without possessing, as on the relevant date of accident, a valid and effective license to drive the same. (v) The driver of the said lorry violated the provisions of Section 134(c) of the Act by not informing the insurer the factum of occurrence of the accident and therefore the owner of the said lorry ought to have been held to have committed breach of insurance policy. (vi) The driver of the said vehicle did not comply with the provision of Section 158(6) of the Act and therefore, it is to be held that the owner of the said vehicle violated the mandatory provision of the Act and hence the insurer is not liable to indemnify the owner by paying the said amount of compensation to the claimant. (vii) The driver of the said lorry did not possess valid and effective license to drive the same as on the relevant date of accident and therefore the owner thereof committed breach of condition of insurance policy and hence the insurer cannot be held liable to indemnify the owner. (vii) The driver of the said lorry did not possess valid and effective license to drive the same as on the relevant date of accident and therefore the owner thereof committed breach of condition of insurance policy and hence the insurer cannot be held liable to indemnify the owner. (viii) The statutory defence available to the insurer need not be pleaded in the written statement in specific words and the material whichever is available on record has to be considered by the Claims Tribunal to arrive at the conclusion that the insurer is not liable to indemnify the owner. 7. Per contra, contentions of Sri Shripad v Shastri, learned counsel for the claimant are: (a) Before the Criminal Court, the driver of the said lorry pleaded guilty of the offences alleged against him in respect of the said accident and accordingly he came to be convicted and therefore, in the absence of any positive evidence of any witness placed on record by the insurer, the Claims Tribunal has rightly recorded its finding that the driver of the said lorry was solely negligent in causing the said accident and hence the said finding does not call for any interference in the appeal of the Insurance Co. (b) Though the insurer has denied, in his written statement before the Claims Tribunal, the averments of the claimant that the said accident was due to rash and negligent driving of the said lorry by its driver, he (insurer) has not taken specific plea as to contributory negligence on the part of the claimant and has also not led any evidence to that effect and therefore the insurer cannot be permitted to raise this plea in his present appeal. Even otherwise, the evidence placed on record by the claimant, both oral and documentary, is sufficient to hold that the driver of the said vehicle was solely negligent in causing the said accident and therefore the finding recorded by the Claims Tribunal cannot be disturbed. (c) The insurer has neither pleaded nor has he placed nay evidence on record as to the alleged violation of any of the mandatory provisions of the Act, much less, the provisions of Sections 3, 4, 5 and 134(c) and 158(6) as contended by the learned counsel for the Insurance Co. in his appeal and therefore his contentions in that regard are not acceptable. in his appeal and therefore his contentions in that regard are not acceptable. Even if it may be found that the owner/driver of the said lorry violated any of the said provisions of the Act, the same could not be a ground for the insurer to avoid his liability to indemnify the owner in terms of the insurance policy. (d) As to the driver of the said lorry not possessing valid and effective driving license to drive the said lorry at the relevant time of accident, no specific plea is taken by the insurer in his written statement and the evidence of RW1 is not sufficient, thus the insurer has not discharged the burden of proving the same and therefore the Claims Tribunal has not committed any error in recording its finding that the Insurance Co. is liable to pay the entire amount of compensation to the claimant. 8. As to the quantum of compensation, the learned counsel for the claimant strongly contends as under: (i) The Claims Tribunal has committed serious error in taking 25% as functional disability in determining the loss of future income/reduction in earning capacity of the claimant despite there being evidence of the claimant himself as PW1 and that of PW2, Neuro Surgeon, who treated the claimant for his injuries that as a result of permanent disability suffered by him, the claimant is not in a position to do manual labour as he was doing earlier to the accident. Therefore the said percentage of the disability deserves to be taken as ‘100%’. (ii) The Claims Tribunal has taken the income of the injured claimant at lower rate of Rs.1,800/- p.m. despite there being evidence on record that by doing his coolie work, he was earning a sum of Rs.3,000/- p.m. Further, the Claims Tribunal committed error in adopting the multiplier ‘12’ while determining the loss of future earning, it ought to have adopted multiplier ‘13’ as laid down in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation and Another reported in 2009 AIR SCW 4992. Vs. Delhi Transport Corporation and Another reported in 2009 AIR SCW 4992. (iii) The Claims Tribunal is not justified, having regard to the period of treatment taken by the claimant as in patient, extent and nature of permanent disability suffered by him, in awarding Rs.40,000/- towards ‘pain and suffering’; Rs.10,000/- towards ‘loss of amenities and enjoyment in future life of the claimant’; Rs.25,000/- towards ‘medical expenses’; Rs.5,000/- towards ‘incidental expenses’; Rs.10,800/- towards ‘loss of income for six months during the period of treatment and rest’ and Rs.64,800/- towards loss if future earnings. Therefore these amounts of compensation require to be enhanced considerably. 9. As to the cause of accident, PW1, the injured-claimant, has stated in his evidence that on the said date, time and place of accident, while he was riding his bicycle from Sulikunte Village, the said lorry, driven by its driver at high speed and in a rash and negligent manner so as to endanger human life, came from Sarjapur side towards Bangalore City and dashed against his bicycle and thus the said accident was due to negligence on the part of the driver of the said lorry. 10. Ex.P1 is the copy of the complaint filed by one Sudarshan in respect of the said accident. It reveals that the said complainant actually witnessed the occurrence of the said accident and that the driver of the said lorry, by driving it at high speed and also negligently dashed against the bicycle of the claimant-Narayanappa and thereby caused the accident. Further, Ex.P5 is the copy of Motor Vehicle’s accident report. It discloses that the said accident was not due to any mechanical defect in the said lorry. Ex.P7 is the copy of chargesheet which discloses that the driver of the said lorry was charge sheeted before the criminal court for having caused the said accident by driving it in a rash and negligent manner. Ex.P8 is the copy of the order sheet in C.C.No.1931/2003 wherein the said driver was charge sheeted in respect of the said accident and he came to be convicted for the offences under Sections 279 and 338 IPC for having caused the said accident by driving the said lorry in a rash and negligent manner resulting in the injuries to the claimant. 11. 11. The recitals of scene of offence panchanama do not in any way establish that the claimant himself contributed to any extent for the occurrence of the accident. The entire evidence placed on record by the claimant has remained totally unrebutted. Therefore the contention of the learned Counsel for the insurer that the Claims Tribunal committed serious error in holding that the accident was solely due to rash and negligent driving of the said lorry by its driver is erroneous cannot be accepted. 12. It could be seen from the impugned Judgment that, on proper appreciation of the oral and documentary evidence placed on record by the claimant, the Claims Tribunal has rightly recorded its finding that the said accident was due to rash and negligent driving of the said lorry by its driver. Besides this, as rightly contended by the learned Counsel for the claimant, no plea of negligence or contributory negligence on the part of the claimant in riding his bicycle is taken by the insurer in his written statement nor has the insurer placed any evidence on record rebutting the positive evidence of the claimant. It is settled law that where the insurer resists the claim of the claimant on the ground that the injured claimant contributed to the occurrence of the accident to any extent, he has to plead and prove the same. This is not done by the insurer in this case. Therefore the finding recorded by the claims Tribunal as to the cause of accident does not call for any interference in the instant appeal of the insurer. 13. Section 3 of the Act provides that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle. Section 4 of the Act provides for the age limit for a person to hold a licence to drive the vehicle and also provides for issuing learner’s license. Section 5 of the Act provides that no owner or person in-charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of Sections 3 and 4 to drive the vehicle, i.e., who does not possess a valid licence to drive the Motor Vehicle. 14. Section 5 of the Act provides that no owner or person in-charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of Sections 3 and 4 to drive the vehicle, i.e., who does not possess a valid licence to drive the Motor Vehicle. 14. Further, Section 134(c) of the Act provides that where any person is injured or any property of a third party is damaged, as a result of an accident in which a motor vehicle is involved, the driver of the said vehicle or the person incharge thereof shall give the information in writing to the insurer, who has issued the certificate of insurance, about the occurrence of the accident and that the said information shall contain insurance policy number, period of its validity, date, time and place of accident, particulars of the persons injured or killed in the accident, the name of the driver and the particulars of his driving licence, etc. Further more, Section 158(6) of the Act mandates that as soon as any information regarding any accident involving death or bodily injury to any person is recorded or reported, the police Officer incharge of the Police Station shall forward a copy of the same to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer. 15. Referring to the above provisions of Sections 3, 4, 5, 134(c) and 158(6) of the Act, learned Counsel for the insurer strongly contends that the owner of the said lorry failed to comply with the said mandatory provisions and thereby committed breach of the insurance policy and hence the insurer is not liable to indemnify the owner of the said vehicle. This contention is not acceptable for reason that, in order to avoid his liability to indemnify the owner, the insurer has to establish that the ‘owner of the vehicle involved in the accident willfully committed breach of a specific condition, subject to which policy of insurance was issued by the insurer in respect of the said vehicle. This being so, the violation of any of the above mandatory provisions of the Act by the owner of the vehicle involved in the accident, even if established by the insurer, does not absolve the insurer from his liability to indemnify the owner. This being so, the violation of any of the above mandatory provisions of the Act by the owner of the vehicle involved in the accident, even if established by the insurer, does not absolve the insurer from his liability to indemnify the owner. It is the breach of a condition of the policy of insurance which is to be established by the insurer in order to avoid his liability to indemnify the owner, but not the violation of any of the above provisions of the Act. 16. As to the driver of the said lorry not possessing valid and effective licence to drive the said lorry as on the relevant date and time of accident, the plea taken by the insurer in his written statement (at para-3) reads as under: “This respondent states that the driver of the vehicle did not possess a valid driving licence to drive the vehicle in question at the relevant time. As such this respondent is absolved of its liability to indemnify the insured/owner in respect of any accident.” As to this fact, the evidence of RW1 reads as under: “The Insurance Company through its Erode Division had requested the Regional Transport Officer, Erode to inform as to whether the Driver had the authority to drive Light Motor Vehicle and Heavy Goods Vehicle and had also requested the said Officer to inform regarding the genuineness of the driving licence. The Assistant Licencing Authority, Erode has made an endorsement on the reverse of the letter stating that the driver Sri C.Murugan, had a licence to drive LMV and TPT vehicle and the same was valid up-to 14.09.2003. The original letter dated 19th November 2004 along with the endorsement made by the ALA, Erode on the reverse of the same is produced. As the driver had no valid licence to drive the vehicle allegedly involved in the accident, as on the date of the accident the second respondent is not liable to pay the compensation and the petition is liable to be dismissed.” 17. In support of his contention that the driver of the said Lorry was not holding licence to drive it, the learned Counsel for the insurer has placed strong reliance on the decision of High Court of Madhya Pradesh in the case of Shankarrao Prahladrao Joshi vs. Babulal Fouzdar and another reported in 1982 ACJ (Supp) 338. In support of his contention that the driver of the said Lorry was not holding licence to drive it, the learned Counsel for the insurer has placed strong reliance on the decision of High Court of Madhya Pradesh in the case of Shankarrao Prahladrao Joshi vs. Babulal Fouzdar and another reported in 1982 ACJ (Supp) 338. As could be seen from para No.5 of the Judgment in the said case, the insurer therein had contended that one Hari Prasad, who was driving the bus at the relevant time of accident, did not possess valid & effective licence to drive the bus and that he was not in the employment of the insured. It was found from the evidence of DW1 Babulal, a munim of respondent-insured that the said Hari Prasad was neither in the employment of the insured nor was he driving the bus at the time of accident. Therefore the High Court held that insurer therein was not liable to indemnify the insured-owner. The Bench observed at para 5 therein as “in the present case, apart from the question whether Hari Prasad held a driving licence or not, he was neither in the employment of the insured nor was he driving the bus at the time of the accident on the order or with the permission of the insured. The insurer, therefore, is exempt from any liability under the terms of the policy and there is no infirmity even in this conclusion reached by the Tribunal.” Therefore, I am of the opinion that the said decision cannot be applied to the facts of the present case. 18. Sri O.Mahesh, the learned Counsel for the insurer, strongly contends that the statutory defence available to the insurer need not be pleaded in the written statement in specific words and the material whichever is available on record has to be considered by the claims Tribunal to arrive at the conclusion that the insurer is not liable to indemnify the owner. This contention is wholly untenable for the reason that it is well settled that in order to avoid his liability, the insurer has to plead in his written statement the defence that is made available to him under Section 149 of the Act and further, he has to prove the same by placing on record, legally acceptable evidence. 19. This contention is wholly untenable for the reason that it is well settled that in order to avoid his liability, the insurer has to plead in his written statement the defence that is made available to him under Section 149 of the Act and further, he has to prove the same by placing on record, legally acceptable evidence. 19. On careful reading of the pleadings of the insurer, extracted supra, it could be seen that it is not the defence of the insurer that the driver of the said vehicle was holding a licence, but it had expired as on the date of the accident. On the other hand, the plea is that the driver of the said vehicle did not possess any valid licence to drive the said Lorry. As could be seen from the endorsement at Ex.R2, issued by the concerned Transport authority, the driver of the said lorry had a licence valid upto 14.09.2003. It is not in dispute that the accident in question occurred on 17.10.2003. Therefore the learned counsel for the insurer strongly contends that the said licence was not renewed as on the date of the accident, hence the insurer is not liable. 20. There is no specific plea by the insurer in the written statement that the owner of the said lorry allowed the driver to drive the vehicle with full knowledge that the licence which the driver was holding had already expired and that it was not renewed and thus the owner committed the breach of condition of the insurance policy willfully and deliberately. 21. In the case of United India Insurance Co. Ltd. Vs. Gian Chand and others reported in 1997 ACJ 1065 which is strongly relied upon by the learned Counsel for the insurer. Hon’ble Supreme Court has observed at para No.9 as under: 9. In the case of Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravandan & Ors. 21. In the case of United India Insurance Co. Ltd. Vs. Gian Chand and others reported in 1997 ACJ 1065 which is strongly relied upon by the learned Counsel for the insurer. Hon’ble Supreme Court has observed at para No.9 as under: 9. In the case of Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravandan & Ors. ( 1987 (2) SCC 654 ; 1987 ACJ 41(SC), a Bench of two learned Judges of this Court speaking through Thakkar, J. held that when the insured had handed over vehicle to be driven by licensed driver and even if the licensed driver on his own and because of his negligence had allowed an unlicensed Cleaner to drive the vehicle it could not be said that there was any breach committed by the insured, so as to attract the exclusion clause in favour of the Insurance company as contemplated under Section 95 (2) (b) of the Motor Vehicles Act, 1939. In paragraph 14 of the Report it was observed that: “The word ‘breach’ in the expression “breach of a specified condition of the policy’ in Section 96(2)(b) is of great significance. ‘Breach’ means infringement or violation of a promise or obligation’. This induces an inference that the violation or infringement on the part of the promisor must be willful infringement or violation, sub-clause (ii) of clause (b) of Section 96(2) enjoins the insurer to establish that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise or infringement of the contract. It is only when the insured himself places the vehicle in charge of a person who does not hold a driving licence, that it can be said that he is ‘guilty’ of the breach of the promise that the vehicle will be driven by a licensed driver. The insurer cannot escape from the obligation to identify the insured when some mishap occurs by some mischance. When the insured has done everything within his power inasmuch as he has engaged a licensed driver and has placed the vehicle in charge of the licensed driver, with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach. When the insured has done everything within his power inasmuch as he has engaged a licensed driver and has placed the vehicle in charge of the licensed driver, with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach. In a way the question is as to whether the promise made by the insured is an absolute promise or whether he is exculpated on the basis of some legal doctrine”. [Emphasis supplied by me] 22. It is clear from the above observations of the Hon’ble Supreme Court in the said case that the violation or infringement on the part of the promissor (insured) must be willful infringement or violation. It is also clear further that it is only when insured is shown to have placed the vehicle incharge of a person who did not possess a driving licence fully knowing that the said person did not hold a valid licence, it can be said that he is ‘guilty of breach of the promise’ that the vehicle will be driven by a licenced driver. 23. Further, in the case of National Insurance Co. Ltd. Vs. Smt. Gadigewwa and Others reported in ILR 2004 KAR 1424 Head note-B and para-17 read as under: B. MOTOR VEHICLES ACT, 1988 (59/88) – SECTION 173 – LIABILITY OF OWNER-Owner an beheld liable if there is breach of conditions of Insurance Policy. It is also absolutely necessary for the Insurance Company to plead and establish by legal evidence that the owner of the offending vehicle consciously and deliberately allowed a person to drive the vehicle in breach of conditions of Policy (Para 17) 17. The above submission of the learned Standing Counsel is also not acceptable to us. A Division Bench of this Court in Smt. H.D. Nagarathnamma’s case, supra (National Insurance Co. Ltd. vs. H.D. Nagarathnamma and others reported in 2002 ACJ 1267 =2001(4) Kar. L.J. 566) having considered number of authorities, held that: “Merely because in a given case the vehicle was driven by a person holding no licence or holding a licence which may be said to be not covering the vehicle, cannot be said to amount to breach of conditions, unless entrustment is established that the vehicle has been entrusted by the owner of the vehicle and breach has been a conscious act and a willful breach”. In other words, it is not enough that the Insurance Company alleges and proves that the driver of the offending vehicle drove the vehicle and caused accident in breach of conditions of insurance policy. In addition to establishing that fact, it is also absolutely necessary for Insurance Company to plead and establish by legal evidence that the owner of the offending vehicle consciously and deliberately allowed a person to drive the vehicle in breach of conditions of policy.” [Emphasis supplied by me] 24. Further, learned counsel for both sides have relied upon the same decision of the Hon’ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and others reported in 2004 ACJ 1= AIR 2004 SC 1531 . At para No.105 (in AIR 2004 SC 1531 ), Hon’ble Supreme Court has summarized the entire law laid down in the said case. Sub-para Nos.(iii), (iv) and (v), of para no.15 read as under: (iii) The breach of policy conditions, e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. 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. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was no disqualified to drive at the relevant time. (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish ‘breach’ on the part of the owner of the vehicle; the burden of prrof wherefore would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case. [Emphasis supplied] The above principles laid down by the Hon’ble Supreme Court in the said case have been followed by the Division Bench of this Court in Gadigewwa’s case (ILR 2004 KAR 1424) referred to supra. 25. Sri O.Mahesh, the learned Counsel for the insurer, placing strong reliance on an earlier decision of Hon’ble Supreme Court in the case of United India Insurance Co. Ltd. Vs. Gian Chand and Others reported in (1997 ACJ 1065) contends that when the driver of the vehicle did not possess licence, it has to be presumed that the owner consciously and deliberately allowed the said person to drive the vehicle. Suffice it to says that in view of the law laid by the Hon’ble Supreme Court in Swaran Singh’s case in clear terms, as extracted supra, this contention cannot be accepted. 26. Yet another decision of Hon’ble Supreme Court on which strong reliance is placed by Sri O.Mahesh, the learned Counsel for the insurer is, in the case of Oriental Insurance Co. Ltd. Vs. Angad Kol and Others reported in 2009 AIR SCW 2747. He has referred to para-18 of the judgment in the said case which reads as under: “18. From the discussions made hereinbefore, it is, thus, evident that it is proved that respondent No.6 did not hold a valid and effective driving licence for driving a goods vehicle. Breach of conditions of the insurance is, therefore, apparent on the face of the records.” [Emphasis supplied by me] 27. On careful reading of the entire judgment in the said case, I have not been able to see, and the learned counsel for the insurer has not been able to point out, from the said Judgment, as to how the breach of condition of the policy was proved by the insurer in the said case. In the instant case, there is no specific plea by the insurer that the owner of the said vehicle consciously and deliberately allowed the driver to drive the vehicle, despite knowing that he did not possess a valid driving licence or that the licence held by him had expired and was not renewed. Further, there is no evidence of RW1 to this effect. Further, there is no evidence of RW1 to this effect. Therefore cannot be held that the insurer herein proved the statutory defence available to him under the Act. 28. Ex.R 2 is the letter addressed by the Insurance Company to the concerned Transport Authority at Erode. An endorsement on the reverse of it is made by the Assistant Licencing Authority, Erode. This endorsement is to the effect that ‘as per the office records, the driving licence issued to one C.Murugan, S/o Chinnathambi, aged 42 years, r/o Erode was valid upto 14.9.2003 and it was a genuine one’. It further reveals that the said licence was ‘to drive LMV and TPT vehicles’. From this endorsement only, it could not be held that the contents therein are the extracts of the entries in the register maintained in the said office in respect of issuance and renewal of the Driving Licences. 29. Section 15 of the Act provides for renewal of driving licences. Sub-Section(6) of Section 15 provides that where the authority renewing the driving licence is not the authority which issued the driving licence, it shall intimate the fact of renewal to the authority which issued the driving licence. Referring to these provisions, learned Counsel for the claimant strongly contends that the Act provides for the renewal of the licence by any Licensing Authority in India and therefore the possibility of the driver of the said vehicle getting his licence renewed by the Licensing Authority other than the one at Erode cannot be ruled out, therefore, since the insurer has not placed any material any record to show that there was no intimation to the Assistant Licensing Authority, Erode, as to renewal of the said licence by any other Licensing Authority, it could not be held that the driver did not possess valid licence to drive the said lorry. 30. Referring to these very same provisions of Sec.15 and S.15(6) of the Act, the learned Counsel for the insurer strongly contends that even if the licence was renewed by some other authority, the authority renewing the licence must have informed the Transport Authority at Erode and therefore the endorsement that came to be issued on 05.01.2005 i.e., long after the occurrence of the accident and expiry of the licence, could have disclosed the factum of renewal. Nothing prevented the insurer from obtaining an endorsement from the said Transport Authority to the effect that it did not receive any intimation from any other Transport Authority as to the driver getting the said licence renewed from the Transport Authority at any place other than Erode. Besides this RW1, has also not spoken anything about the non-renewal of the said licence. 31. It is not is dispute that the insurer of the vehicle did not issue any notice to either the owner or to the driver of the said lorry calling upon him to produce the driving licence held by the driver. It is well settled that if the insurer has to avoid his liability on the ground that the driver was not holding licence to drive the vehicle involved in the accidents, the burden of proving the factum of absence of licence is on the insurer. It is also well settled that, in order to discharge this burden, the insurer shall have to issue a notice to the owner/driver of the vehicle in question, calling upon him to produce the licence held by its driver as on the relevant date of accident, and, if the owner/driver, despite receipt of the said notice, does not comply with the same and fails to produce the licence, it could be held that the insurer discharged his burden of proving this statutory defence available to him under Section 149 of the Act. It is laid down by this Court in the case of United India Insurance Company Limited vs. N.Srinivasa and Another reported in 2000(5) KLJ 254=ILR 2000 KAR 2829 that if the insurer did not issue notice to the owner/driver of the offending vehicle calling upon him to produce the driving licence, no adverse presumption can be drawn against the owner or driver for non-production of driving licence. Head note in the said decision reads as under: Section 149(2)(a)-Breach of condition of insurance policy-Insurer repudiating his liability to satisfy award, on ground of-Allegation that driver of offending was not holding valid driving licence-burden of proving allegation is on insurer, and this burden can be held discharged if he had issued notice to owner of offending vehicle and driver to produce driving licence and examined them on oath-No adverse presumption can be drawn against owner or driver for non production of driving licence, when he has not been called upon to produce same-Insurer having failed to discharge burden of proving his allegation before Tribunal is estopped from raising same allegation in appeal. 32. Learned Counsel for the insurer contends that no issue has been framed by the Claims Tribunal casting burden on the insurer to prove the absence of driving licence and therefore the insurer cannot be fastened with the liability to pay compensation to the claimant. Suffice it to say that the insurer has taken contention, in his written statement, though in vague terms, that there was breach of condition of the policy by the owner, and therefore insurer is not liable to indemnify the owner, and, has also led the evidence of RW1 in order to substantiate the same. Further, the Claims Tribunal, on appreciation of the evidence of RW1 and the plea taken by the Insurance Company in its written Statement, has held that insurer is liable to pay compensation to the claimant. Therefore this contention of the learned Counsel for the insurer does not deserve to be accepted. 33. Learned counsel for the appellant-insurer, placing strong reliance on the decision of the Hon’ble Supreme Court in the case of Sardari & Ors. V. Sushil Kumar & Ors. Reported in 2008 AIR SCW 2075 contends that filing of charge sheet by the police concerned against the driver of the said taxi for the offences as aforesaid was sufficient for the Claims Tribunal to hold that the insurer substantiated his plea that the said driver was not holding valid licence to drive the said taxi as on the date of accident. 34. 34. At para No.2 of the said judgment (Sardari’s Case) it is observed that the driver of the tractor involved in the accident namely Sushil Kumar was examined before the Motor Accidents Claims Tribunal and he categorically stated that he did not know how to drive the tractor and that he never even tried to learn driving of the tractor and also admitted that he had not been possessing any valid licence to drive the tractor. It is further observed that it was accepted by the said driver that he had never applied for the licence. Based on the said evidence, the Claims Tribunal, as well as the High Court, recorded their concurrent findings that the driver of the said vehicle, viz: Sushil Kumar, never held the licence to drive the tractor. That being so, the Hon’ble Supreme Court held in the said decision that the insurer was able to prove the factum of absence of driving licence with the driver to drive the tractor and therefore, insurer was not liable to indemnify the owner of the said vehicle. In the instant case the facts are that the driver of the lorry involved in the accident has not been examined and no notice was served upon the owner or the driver of the said lorry calling upon him to produced the driving licence. Therefore, the said decision of Hon’ble Supreme Court cannot be made applicable to the present case. 35. Learned counsel for the respondent-claimant has relied upon the decision of the Hon’ble Supreme Court in the case of Rukmani and others v. New India Assurance Co. Ltd. and others reported in 1999 ACJ 171. In the said case before Hon’ble Supreme Court there was evidence of Inspector of Police who investigated the criminal case pertaining to the accident in question. He had deposed before the Claims Tribunal that the respondent No.1 therein, the driver of the vehicle involved in the accident, failed to produce the driving licence on demand and therefore, he was charge sheeted for his failure to produce the driving licence when demanded to produce. On those facts Hon’ble Supreme Court observed at para 3 of its judgment as under: 3. “We have seen the only evidence which the insurance company produced in support of the plea. This is the evidence of Inspector of Police who investigated the accident. On those facts Hon’ble Supreme Court observed at para 3 of its judgment as under: 3. “We have seen the only evidence which the insurance company produced in support of the plea. This is the evidence of Inspector of Police who investigated the accident. In his evidence, PW1 who was the Inspector of Police stated in his examination-in-chief, “My enquiry revealed that the respondent No.1 did not produced the licence to drive the abovesaid scooter. The respondent No.1 even after my demand did not submit the licence since he was not having it.” In his cross-examination he has said that it is the Inspector of Motor Vehicles who is required to check whether the licence is there but he had not informed the Inspector of Motor Vehicles that the respondent No.1 was not having a licence since he thought it was not necessary. In our view, this evidence is not sufficient to discharge the burden which was cast on the insurance company. It did not summon the driver of the vehicle. No record from the Regional Transport Authority has also been produced. In these circumstances, the insurance company has not discharged the burden cast upon it under section 96(2)(b)(ii) of the Motor Vehicles Act, 1939”. [Emphasis supplied by me] 36. Further, in the case of National Insurance Company Limited, Bangalore v Smt. H.D. Nagarathnamma and Others reported in 2001(4) Kar LJ 566(A), the Division Bench of this Court has observed as under: “mere raising of plea in written statement does not absolve insurer of his liability to satisfy award-Plea should be established. Burden of proof is on insurer to prove that insured, by entrusting vehicle to person not holding licence to drive type of vehicle in question, had deliberately committed breach of condition of policy. [Emphasis Supplied be me] 36A. Further, subsequent to the above decision of the Division Bench of this Court, learned Single Judge of this Court has observed in the case of Mahabala Vs Sathyanarayana and Others reported in ILR 2004 KAR 375 at para Nos.12, 13 and 18 is as under: Para12: In support of said pleading, there is evidence of RW-1 Prakash. Further, subsequent to the above decision of the Division Bench of this Court, learned Single Judge of this Court has observed in the case of Mahabala Vs Sathyanarayana and Others reported in ILR 2004 KAR 375 at para Nos.12, 13 and 18 is as under: Para12: In support of said pleading, there is evidence of RW-1 Prakash. It is stated by him that the respondent No.1 had no driving licence and the R.T.O. Office informed that it has no record to show that any driving licence was issued to the first respondent and first respondent also failed to produce driving licence before the Vehicle Inspector when the motor cycle was inspected by M.V.1 after accident. However, except the said statement of Rw-1 examined for respondent No.3, there is no other evidence or record. So, the question is, whether this much evidence coupled with the pleading referred to above is sufficient to hold that the Insurance Company has discharged its burden cast on it since, admittedly, the burden to prove the same was on the Insurance Company, as held by this Court even before quarter century in the case of Sanjiva Shetty vs Anantha & Others and reiterated recently also in the case of H.G. Ramachandra Rao vs Master Srikiantha & Others and even by the Supreme Court recently in the case of Rukmani and Others vs New India Assurance Co. and Others. Para 13: Admittedly, the 3rd respondent-Insurance Company has neither summoned respondent No.1-rider of motor cycle to give evidence nor obtained and produced any record issued by RTO nor summoned anybody from the office of R.T.O. to show that respondent no.1 had no driving licence to drive motor cycle. In the case on hand. If really respondent No.1 had no driving licence to drive it, there was no reason for Police not to charge-sheet respondent No.1 for driving motor cycle without driving licence particularly when charge-sheeted for rash and negligent driving, as is clear from charge-sheet Ex.R-2. This fact also cannot be ignored. Para18: Thus, it is only in case of a breach or violation of the promise on the part of the insured that the insurer can hide under the umbrella of the exclusion clause. The expression ‘breach’ is of great significance. The dictionary meaning of ‘breach’ is ‘infringement or violation of a promise or obligation’. This fact also cannot be ignored. Para18: Thus, it is only in case of a breach or violation of the promise on the part of the insured that the insurer can hide under the umbrella of the exclusion clause. The expression ‘breach’ is of great significance. The dictionary meaning of ‘breach’ is ‘infringement or violation of a promise or obligation’. It is, therefore, abundantly clear that the insurer will have to establish that the insurer is guilty of an infringement or violation of a promise that a person, who is duly licence, will have to be incharge of the vehicle. The very concept of infringement or violation of the promise that the expression ‘breach’ carries within itself induces an inference that the violation or infringement on the part of the promisor must be a willful infringement or violation. As such, the Insurance Company will have to not only establish that insured was guilty of an infringement or violation of promise, it has also to satisfy the Tribunal that such infringement or violation on the part of the insured was willful, as held by the Apex Court in the case of Skandia Insurance Co. Ltd. vs Kokilaben Chandravadan. 37. Following the above observations of the Hon’ble Supreme Court and this Court in the said decisions. I am of the opinion that the appellant-insurer failed to discharge the burden of proving breach of condition of the insurance policy alleged to have been committed by the owner of the said taxi. Therefore, the Claims Tribunal did not commit any error in fastening the liability on the appellant-insurer to pay compensation to the respondent-claimant. 38. As to the quantum of compensation, if it is the contention of the learned Counsel for the insurer that the Claims Tribunal is quite justified in awarding various amounts of compensation under the impugned Judgment and Award and hence the same do not require any enhancement in the appeal of the claimant, the contention of the learned Counsel for the claimant is that the said amounts of compensation require to be enhanced. 39. The Claims Tribunal has awarded a sum of Rs.40,000/- towards ‘pain and suffering’ and Rs.10,000/- towards ‘loss of amenities and enjoyment’ in the future life of the claimant. 39. The Claims Tribunal has awarded a sum of Rs.40,000/- towards ‘pain and suffering’ and Rs.10,000/- towards ‘loss of amenities and enjoyment’ in the future life of the claimant. It is not in dispute that as a result of the said accident, the claimant sustained depressed fracture of frontal bone and also fractures of C3 and C4 vertebra. Further, it is established by the claimant through Ex.P12, the case sheet, that he was treated as an in-patient in St.John’s Medical College Hospital, Bangalore for a period of 17 days from 17.10.2003 i.e., from the date of accident till 03.11.2003. 40. Besides averring in his claim petition, PW1 claimant has stated in his examination-in-chief, which is in the form of affidavit, that immediately after the accident he was shifted to St.John’s Medical College Hospital, Bangalore and that he was treated in the said Hospital as in-patient from 17.10.2003 to 03.11.2003 for the said injuries. He has also stated in his evidence that he underwent surgery for his head injuries and that after he came to be discharged from the Hospital, he took follow up treatment once in 15 days. 41. PW2 Dr.Shailesh A.V.Rao, Professor of Neuro Surgery in St.John’s Medical College Hospital has stated in his evidence that the injured-claimant was admitted in the said Hospital on 17.10.2003 and at that time he was found sustained the following injuries: 1) Lacerated wound in the frontal region of the scalp. 2) Tenderness over the neck. 3) Depressed fracture left frontal bone. 4) Pheumocephalus. 5) Cervical cord contusion at C3 and C4 level with dense quadriplegia. He has further deposed that the claimant was admitted to neuro surgery ward and was treated with steroids, anticoagulants, antibiotics and physiotherapy for all his four limbs. This Doctor has further deposed that the claimant was confined to wheel chair and has gross dense weakness of all four limbs and that he had difficulty in passing urine and also that it was difficult for him to sit, squat and walk properly and therefore he was advised to continue physiotherapy treatment. He has further deposed that on the basis of clinical and radiological examination, he has assessed physical disability of the claimant at 80% in respect of his whole body. 42. He has further deposed that on the basis of clinical and radiological examination, he has assessed physical disability of the claimant at 80% in respect of his whole body. 42. The claimant (PW1) has stated in his evidence that earlier to the accident, he was working as a collie and was earning Rs.3,000/- per month and that as a result of the permanent disability suffered by him, his entire nervous system has become weak and he is not in a position to work as a coolie as he was working earlier. 43. Thus, it is clear from the above evidence of PWs.1 and 2 that by reason of the injuries sustained by him in the said accident, the claimant has sustained physical disability to the extent of 80% in respect of his whole body and that, with that much of disability, he has to suffer paid, discomfort, inconvenience, inasmuch as he cannot sit, he cannot squat and he cannot walk. Therefore, I am of the considered opinion that though the Tribunal is justified in awarding a sum of Rs.40,000/- towards ‘pain and suffering’, it is not justified in awarding only Rs.10,000/- towards ‘loss of enjoyment and amenities in the future life’ of the claimant, in view of the fact that as on the date of accident, the claimant was aged about 50 years and as such, he has to suffer said inconvenience, discomfort, dissatisfaction, frustration etc. for another period of 15-20 years. Therefore I hereby enhance the said amount of Rs.10,000/- to Rs.75,000/-resulting in enhancement of Rs.65,000/- under the head of “Loss of amenities and enjoyment.” 44. The Claims Tribunal has taken the income of the claimant at Rs.60/- per day i.e., Rs.1,800/- per month. In view of the fact that the accident occurred in the year 2003, I am of the opinion that the Claims Tribunal ought to have taken the income of the injured at Rs.100/- per day of Rs.3,000/- per month inasmuch as the claimant was working as a coolie. The Claims Tribunal has awarded a sum of Rs.10,800/- under the head of ‘Loss of income’ for six months being the period of treatment and rest. If the income of the claimant is taken at Rs.3,000/- p.m. the said amount requires to be enhanced from Rs.10,800/- to Rs.18,000/- resulting in the enhancement of Rs.7,200/- under the head ‘Loss of income’ during the period of treatment and rest. If the income of the claimant is taken at Rs.3,000/- p.m. the said amount requires to be enhanced from Rs.10,800/- to Rs.18,000/- resulting in the enhancement of Rs.7,200/- under the head ‘Loss of income’ during the period of treatment and rest. 45. The Claims Tribunal awarded Rs.25,000/- towards ‘medical expenses’, Rs.5,000/-towards expenses incidental to the treatment of the injured-claimant. Since the claimant was treated as in-patient for 17 days only and bills and cash memos submitted by him did not exceed Rs.20,000/-. I am of the opinion that these amounts do no deserve to be enhanced to any extent. 46. However, in view of the established fact that the claimant took further treatment and also rest for a period of six months, the Claims Tribunal should have awarded a reasonable amount towards ‘Special Diet, attendant charges’ etc. Therefore, I hereby award in favour of claimant a sum of Rs.10,000/- under this head. 47. The Claims Tribunal has taken 25% as the functional disability for determining the compensation to be awarded under the head ‘Loss of future income/reduction in earning capacity’ of the claimant. In this regard, the learned Counsel for the claimant strongly contends that the claimant has been an unskilled manual labourer and as such, he does not know any other work and therefore the Loss of future income should have been taken at 100%. Per contra, the learned Counsel for the insurer referring to the evidence of PW2 Doctor submits that the claimant is not totally unfit to do any work and therefore the Claims Tribunal is quite justified in taking the said percentage of functional disability. 48. PW2 Doctor, though has stated in his evidence that the claimant was confined to wheel chair that he has gross dense weakness in all the four limbs, he has stated further, in the same paragraph, that the claimant has difficulty in sitting, squatting and walking properly. This goes to show that the claimant has not suffered 100% reduction in his earning capacity. Though the Doctor has not stated in his evidence as to what is the exact reduction in earning capacity of the claimant by reason of the said physical disability, the fact remains that the claimant cannot do coolie work with the same efficiency as he was doing earlier to the accident. 49. Though the Doctor has not stated in his evidence as to what is the exact reduction in earning capacity of the claimant by reason of the said physical disability, the fact remains that the claimant cannot do coolie work with the same efficiency as he was doing earlier to the accident. 49. In cases of personal injuries, the reduction in earning capacity of the injured-claimant in consequence of the disability suffered by him as a result of the accident need not always be proportionate to the physical disability suffered by him. The extent of reduction in earning capacity of the injured has to be assessed with reference to his avocation and the effect of physical disability on his avocation. In this case, it is not in dispute that the injured had been an unskilled manual labourer. As a result of the said disability his efficiency as a labourer has been reduced to a large extent. Therefore, in view of the nature and extent of physical disability, the earning capacity of the claimant must have been reduced by 50% resulting in proportionate loss of his earnings. Since income of the claimant as on the date of the accident, is taken at Rs.100/- per day reduction in his earning capacity in terms of money comes to Rs.50/- per day or Rs.1,500/- per month. 50. As rightly submitted by the Learned Counsel for the claimant, since the claimant was aged 50 years as on the date of accident, the Claims Tribunal is not justified in adopting the multiplies of ‘12’. The appropriate multiplier would be ‘13’ as laid down by the Hon’ble Supreme Court in the case of Sarla Verma and Others Vs. Delhi Transport Corporation and another reported in 2009 (6) SCC 121. Therefore, if the income of the claimant is taken at Rs.100/- per day or Rs.3,000/- p.m. and reduction in his earning capacity is taken at 50%, the said reduction in terms of money comes to Rs.1,500/- p.m. or Rs.18,000/- p.a. If this amount is multiplied by the multiplier ‘13’, the total reduction in his earning capacity in terms of money or loss of future earning comes to Rs.2,34,000/-(Rs.18,000 x 13) as against Rs.64,800/- warded by the Claims Tribunal resulting in enhancement of Rs.1,69,200/- which is rounded off to Rs.1,69,000/- and the same is hereby awarded. 51. 51. In view of my foregoing discussion, I hold that the injured-claimant shall be entitled to enhanced compensation as under: 52. For the reasons aforesaid, MFA No.11311/2006 filed by the insurer is hereby dismissed and MFA No.11843/2006 filed by the claimant is hereby allowed in part. The appellant in MFA No.11843/2006 shall be entitled to enhanced compensation of Rs.2,51,200/- with interest thereon at the rate of 6% p.a. from the date of petition till the date of actual payment excluding the period of delay caused in filing the said appeal by the claimant. This amount shall be deposited by the insurer along with the balance amount of compensation in terms of the impugned award within eight weeks from the date of drawing of the modified award. The award shall be modified accordingly. Whatever amount is deposited with this Court by the insurer shall be transmitted to the Claims Tribunal so as to enable the claimant to withdraw the same.