JUDGMENT 1. - This is a misc. appeal filed by claimants under Section 173 of Motor Vehicles Act (for short hereinafter called the Act") against an award dated 27.8.1996 passed by MACT, Bikaner in Claim Case No. 100/1991. 2. By impugned award, the claims Tribunal partly allowed the claim petition of appellants (claimants) filed by them under Section 166 of the Act for compensation and awarded to them a total amount of Rs. 2,85,000/- for the death of one "Kanhaiya Lal", who died in vehicular accident. However, while passing the impugned award, the Tribunal exonerated the insurance Company from liability and dismissed the claim petition as against them. It is against this award, the claimants have felt aggrieved and filed this appeal. 3. So in substance two questions arise for consideration in this appeal. First, whether the Tribunal was justified in exonerating the Insurance Company (insurer of offending vehicle) from the liability by dismissing claim petition as against them an confining passing of the award only against the owner/driver of the offending vehicle and second whether Tribunal was justified in awarding a total compensation of Rs. 2,85,000/- to the claimants for the death of Kanhaiya Lal and if not whether any case for enhancement in the award of compensation is made out and if so to what extent ? 4. On 2.8.1991, Kanhaiya Lal aged about 48 years while going on foot in front of circuit house of Bikaner was dashed by a three wheeler bearing No. RNF 4081. it is due to this dash, he fell down and succumbed to injuries. This gave rise to filing of claim petition by his legal representatives (claimants/appellants) under Section 166 ibid against insured, driver and insurer of offending vehicle claiming compensation for his death. It was alleged that he was state employee working in PWD and was earning Rs. 3047/- by way of monthly salary. It was alleged that as far as to claimants' information, the wheeler was owned by one Shivlal (NA-1) and driven by Kesari Chand (NA-2) at the relevant time and was insured with NA-3 and hence all the three are jointly and severally liable to suffer the award. It was alleged that accident occurred due to sole negligence of driver of three wheeler. 5. It was alleged that accident occurred due to sole negligence of driver of three wheeler. 5. So far as NA-1/2 i.e. alleged owner and driver were concerned, they remained ex parte as both of them did not enter appearance despite service of summons to them. The case was contested only by insurance Company (NA-3). In substance, their defence was that of denial of claimants' case. it was further alleged that accident occurred but to sole negligence of deceased and hence Insurance Company was not liable to pay any compensation to claimants. It was lastly alleged that driver of three-wheeler had no driving license at the time of driving of vehicle in question. Parties adduced evidence. 6. As observed supra, the claims Tribunal partly allowed the claim petition. It was held that accident occurred due to sole negligence of driver of three-wheeler. It was held that the three wheeler was being driven by Kesri Chand and since he was not holding any license on that day to drive such vehicle and hence no liability could be fastened upon the insurance Company. In this way, the Insurance Company was exonerated from the liability on the ground that breach of condition of policy was committed by insured. It was then held that claimants are entitled to claim a sum of Rs. 2,85,000/- by way of compensation from owner and driver of offending vehicle. On these findings, the claims Tribunal allowed the claim petition in part and passed the impugned award. It is against this award, the claimants alone have felt aggrieved and filed this appeal. 7. Having heard the learned counsel for the parties and on perusal of record of the case, I am inclined to allow the appeal and modify the impugned award as indicated infra. 8. Coming first to the question as to whether any case on facts/evidence is made out to for exonerating the insurance Company. In my view, having gone through the evidence and pleadings, Tribunal was not right in coming to such conclusion. In other words, it is a case where the Insurance Company should have been held liable to suffer the liability arising out of the accident on the strength of policy and the impugned award should have also been passed jointly and severally against the NA-1 and NA-3, i.e., against Shivlal-owner of vehicle (three- wheeler) and NA-3, i.e. Insurer/Insurance Company. 9. In other words, it is a case where the Insurance Company should have been held liable to suffer the liability arising out of the accident on the strength of policy and the impugned award should have also been passed jointly and severally against the NA-1 and NA-3, i.e., against Shivlal-owner of vehicle (three- wheeler) and NA-3, i.e. Insurer/Insurance Company. 9. On perusal of evidence of Shivlal - AW-6, who was examined by claimants as their witness it is clear that he was owner of the three-wheeler in question and was driving the said three-wheeler on the day when accident occurred. When NA-1 himself, instead of contesting the claim of claimants, entered into a witness box as claimants' witness and admitted in his evidence that he was the owner and driving the vehicle which caused the accident, then what more conclusive evidence was called for in this case to hold in favour of claimants as this issue than the one adduced by him in this form. Not-only this, even Shivlal also filed his driving license to show that he was having a license to drive such vehicle and the same was in force on the date of accident. These facts in my view, conclusively prove that it was Shivlal who was driving the three-wheeler at the time of accident and none-else. 10. Learned counsel for the respondent (Insurance Company), however, vehemently contended that when claimants themselves have come out with a case that Kesri Chand was driving the vehicle and hence it can never be held than Shivlal was driving the vehicle. According to him, it would amount to travelling outside the pleadings which is not permissible. I do not agree in the facts of this case. In my view, it is not possible in every case for the claimants to find out the name of driver because they were not eye-witnesses. In this case, the claimant was able to give the correct name of owner. They also examined even the owner as their witness who said that he was driving the vehicle which caused accident and not Kishanchand. In such state of affairs, it was for the non-applicants (Insurance Company) to have adduced evidence by examining Kesri Chand as their witness and prove that it was Kesri Chand who was driving the vehicle and not Shivlal. In such state of affairs, it was for the non-applicants (Insurance Company) to have adduced evidence by examining Kesri Chand as their witness and prove that it was Kesri Chand who was driving the vehicle and not Shivlal. It was all the more in his case because Kesri Chand was made NA-2 but despite service, he remained ex pane. In fact, when Shivlal was examined by claimants as their witness then to prove the case in rebuttal, the insurance Company ought to have tendered Kesri Chand as their witness when they found that Kesri Chand was not contesting the case. Since it was not done and hence this Court has all jurisdiction to draw adverse inference against the. Insurance Company and hold that it was Shivlal (NA-1) who was driving the three-wheeler which caused accident resulting in death of Kanhaiya Lal. I hold accordingly. 11. So far as issue relating to negligence of driver is concerned, it is amply proved by witness of claimants and also of Shivlal. No evidence was adduced by non-applicant to prove as to how Kanhaiya Lal was negligent, who was pedestrian. I thus hold that accident occurred due to sole negligence of driver of three wheeler which caused death of Kanhaiya Lal. 12. This takes me to the next question as to whether Tribunal was justified in awarding compensation of Rs. 2,85,000/- to the claimants. Having perused the evidence, I am of the view that a case for enhancement to some extent is made out. 13. In my view, the only area where interference is called for is application of multiplier. It is for the reason that the age of deceased at the time of death was 48 and hence instead of applying the multiplier of 11', I prefer to apply the multiplier of 13' as provided in the Schedule appended to the Act. So far as monthly income of deceased is concerned, in my view, no case for interference is called for on facts and evidence because the finding recorded by the Tribunal on this issue is just and proper. 14. In this view of the matter, we get a sum of Rs. 24,000 x 13 = 3,12,000/-. In addition, I consider it proper to award in lump-sum total sum of Rs. 25,000/- towards conventional heads, i.e. loss of estate, love and affection and funeral expenses. 14. In this view of the matter, we get a sum of Rs. 24,000 x 13 = 3,12,000/-. In addition, I consider it proper to award in lump-sum total sum of Rs. 25,000/- towards conventional heads, i.e. loss of estate, love and affection and funeral expenses. In this way, the claimants are held entitled by way of compensation to a total sum of Rs. 3,12,000 + Rs. 25,000 = 3,37,000/-. 15. Learned counsel for the respondent No. 3 Mr. Vyas placed heavy reliance on decisions reported in MACD 2007(1) (SC) p. 600, OIC v. Premlata Shukla , AIR 2004 SC p. 1531, NIC v. Swan Singh ; MACD 2008 (SC) p. 102; Sardari v. Sushil Kumar , MACD 2008 (SC) p. 156; Prem Kumari v. Prahalad ; MACD 2008 (SCI p. 289, NIC v. Kaushalya Devi & Ors. ; MACD 2008 (SC) p. 351; Ram Babu Thanvi v. UIIC and MACD 2009 (SC) p. 168 Bhawan Singh v. OIC . 16. 1 have gone through the decisions and find that on facts they are distinguishable so far as this case is concerned. What matters in every case is first the facts and then its application to the case. When the facts are distinguishable then law laid down in the context of facts involved in that case would not apply. I, therefore, do not wish to deal with each and every decision to show its distinction with the facts of this case. in my view no help can be taken of these decisions for deciding the issue in favour of respondents though urged with vehemence. 17. In the light of foregoing discussion, the appeal succeeds and is allowed in part. Impugned award is modified to the extent indicated above. The claimants (appellants) are held entitled to claim a total sum of Rs. 3,37,000/- from the non-applicants No. 1 Shivlal and the New India Assurance Co. NA-3. The claim petition as against Kesari Chand is dismissed. The enhanced sum awarded would carry interest @ 6% from the date of application till its realization. The award is accordingly passed jointly and severally against NA-1 and NA-3.Counsel fees Rs. 1,500/- if certified.Appeal partly allowed. *******