JUDGMENT Mr. K. Kannan, J (oral) - The appeal is for enhancement of compensation for death of a male aged 45 years. The deceased was said to be an astrologer by profession. The claimants were widow and two children. The contention was that he was earning about Rs.5,000/- and the tribunal took the income at Rs.2500/-. The ground in appeal is that the income has been assessed rather low and there has been no appropriate provision made for loss of consortium and loss of love and affection and other conventional heads. 2. I will find no reason for enhancing the assessment of income when the tribunal has considered oral assertion of the party. Even for increase I will be loathe to make when employment as stated by the appellant seems fragile. I will rework the compensation taking the income as taken by the tribunal and applying a multiplier of 14 and making a provision for loss of consortium and loss of love and affection in the manner suggested by the Supreme Court in the judgment of Rajesh and others Vs. Rajbir and others, [2013(4) Law Herald (SC) 3006 : 2013(3) Law Herald (P&H) 2274 (SC)] : (2013) ACJ SC 1403. The various heads of compensation are tabulated as under:- ----------------------------------------------------------------------------------------------------------------------------------------- Fatal accidents Date of accident 30.5.1998 ---------------------------------------------------------------------------------------------------------------------------------------- Age 45 Occupation Claimants: Widow, two children ---------------------------------------------------------------------------------------------------------------------------------------- S.No. Heads of claim Tribunal (Amount Rs.) High Court Amount (Rs.) ---------------------------------------------------------------------------------------------------------------------------------------- 1 Income 2100/- 2100/- 2 Add, % of increase 30%/50% 3 Deduction 1400/- 4 Multiplicand 16800/- 5 Multiplier 14 6 Loss of dependence 2,35,200/- 7 Medical expenses 8 Loss of consortium 1,00,000/- 9 Loss of love and affection 1,00,000/- 10 Loss to estate 2500/- 11 Funeral expenses 5000/- ---------------------------------------------------------------------------------------------------------------------------------------- 12 Total 2,52,000/- 4,42,700/- ---------------------------------------------------------------------------------------------------------------------------------------- There shall be an award for Rs.4,42,700/-. The amount in excess of what has already been granted by the Tribunal shall attract interest at the rate of 7.5% per annum from the date of petition till the date of payment. The additional amount of compensation shall be recovered against the insurer. 3. In the award passed by the tribunal there is a provision for recovery in favour of the insurer against the insured which is a public sector bank. The additional amount of compensation shall be recovered against the insurer. 3. In the award passed by the tribunal there is a provision for recovery in favour of the insurer against the insured which is a public sector bank. Though the bank itself has not come on appeal the counsel states that there is power of the appellate court to consider the correctness of the direction against the respondent under Order 41 Rule 33. I have examined the case as to why the tribunal has provided for right of recovery against the owner. The tribunal has made an issue about the fact that the copy of the driving license was not produced before the tribunal and therefore it must be taken that the driver did not have a valid driving license. Counsel points out to me the evidence where the particulars of driving license of the driver and the fact that the employer had verified the license had been set forth before the tribunal but it was the non-production of the license which was taken to be a ground for making inference that the driver did not have a valid driving license. The proof of violation of terms of policy is always on the insurer. If there was a notice given by the insurer for production of the driving license from the driver and there had been no compliance of such direction, it will be possible to make such an inference. Otherwise not. The burden of proof is always on the insurer which I would find in this case has not fully discharged. The case does not require any new evidence but the reasoning adopted by the tribunal and the material brought at the trial are themselves sufficient to hold that the right of recovery ordered against the owner Bank was erroneous. I invoke the power under Order 41 Rule 33 and set aside the recoveries awarded to the insurer. 4. The award is modified and the appeal is allowed to the above extent. ---------0.B.S.0------------ —————————