JUDGMENT Amitav K. Gupta, J. – I.A. No. 3525 of 2014 This interlocutory application has been filed under Section 5 of the Limitation Act for condoning the delay of 27 days in filing the instant appeal. Learned counsel for the respondent has not raised any serious objection. Heard. In view of the reasons assigned in the supporting affidavit, sufficient cause and reasonable explanation is made out. Accordingly, the delay is condoned. I.A. No.3525 of 2014 stands disposed off. I.A. No. 2678 of 2012 This interlocutory application has been filed under Order 22, Rule 4 read with Section 151 C.P.C and Section 5 of the Limitation Act for substituting the legal heirs of deceased respondent No.1 who died on 04.05.2008 as per the service report received in the present appeal and also for condoning the delay. Learned counsel appearing for the respondent/claimants stated that the respondent No.1 died leaving behind respondent No. 2 as the sole legal heir of the deceased Sudhni Kherwa @ Budhni Kherwar. In view of the above submission, let the name of respondent No.1 be deleted from the cause title of the memo of appeal and delay is condoned. Accordingly, I.A. No.2678 of 2012 stands disposed off. M.A. No. 112 of 2008 This miscellaneous appeal has been filed impugning the judgment/award in Compensation Case No.124 of 2002 passed by Additional Judicial Commissioner-cum-M.A.C.T. Ranchi, whereby the liability to pay the awarded compensation of Rs. 2,21,000/- less the amount of Rs. 50,000/- paid under Section 140 with interest at the rate of 9% from 20.09.2003, has been fastened upon the appellant-Oriental Insurance Company Limited. 2. C.O. No.16 of 2009 has been preferred by the claimants/applicants for enhancement of the aforesaid awarded compensation. 3. The admitted facts are that the deceased namely, Jhuwa Kherwar, aged 35 years, died in a motor accident involving truck No. BR-14C-0009. It is alleged that the driver of the truck was driving the vehicle rashly and negligently and accordingly Bisunpur P.S. Case No.5 of 2002 under Section 279 and 304A IPC was registered against the driver of the offending truck and charge sheet was laid against the said driver. 4. The claimants have averred that the deceased was a daily wage labourer and earning Rs. 3,000/- per month. The applicants/claimants are the mother and the minor son of the deceased. 5. 4. The claimants have averred that the deceased was a daily wage labourer and earning Rs. 3,000/- per month. The applicants/claimants are the mother and the minor son of the deceased. 5. Learned counsel for the appellant-insurance company while assailing the impugned judgment, has submitted that the insurance company had adduced documentary evidence by producing the report of the D.T.O Office, which was annexed with the report of the surveyor as G/1. But the tribunal has without appreciating the fact that the report was a certified copy of the D.T.O. Office has erred in holding that the O.P. No.2 i.e., insurance company, has failed to discharge the onus of proving the factum that the driver did not have a valid driving licence on the date of the accident. Learned counsel has submitted that the report of the D.T.O. would reveal that the license was valid till 12.06.2001 and the accident took place on 12.02.2002. It is argued by the learned counsel that this ex-facie discloses that the driver did not have a valid driving license on the date of accident and there was breach of the terms and conditions of the insurance policy under section 149 (2) of the Motor Vehicles Act, 1988. Learned counsel while relying on the decisions in the case of Rambabu Tiwari v. United India Insurance Company Ltd. in Civil Appeal No.4749 of 2008 and 4750 of 2008 , has urged that the Supreme Court has distinguished the ratio laid down in the case of National Insurance Company Limited v. Swaran Singh and Ors. (2004) (Vol-III SCC-297) and elaborately discussed and distinguished the concept and meaning of expression "effective driving license" and ''duly licensed'' used in Section 149 (2). It has held that if the licence has expired and is not renewed within 30 days as mandated under Section 15 of the Act, then the driver of the vehicle cannot come within the purview of having a valid driving license and insurer is exonerated from the liability to pay the compensation due to the breach of the terms and conditions of the policy. That the principle has also been followed in the case of Ishwar Chandra and Others v. The Oriental Insurance Company Limited and Others ( AIR 2007 SC 1445 ) . That the principle has also been followed in the case of Ishwar Chandra and Others v. The Oriental Insurance Company Limited and Others ( AIR 2007 SC 1445 ) . Learned counsel has argued that the tribunal has erred in law by fastening the liability to pay the compensation on the appellant-insurance company by not considering the surveyor''s report (G and G/1) without appreciating the fact that it was a public document. It is submitted that in view of the ratio and judgment rendered in the aforesaid case, the insurance company should be exonerated from the liability to pay the said compensation amount and the owner of the offending vehicle is liable to pay the compensation. 6. Per contra, learned counsel for the respondents/claimants has contended that the burden lies heavily on the insurer to establish that the driver did not possess a valid driving licence as held in the case of National Insurance Company Limited v. Swaran Singh . It is submitted that the tribunal should have assessed the income of the deceased at Rs. 3,000/- per month and should not have deducted ?rd rather in the facts and circumstances of the case, 1/10th of the income should be deducted towards personal expenses. It is argued that a meager amount has been awarded towards the pecuniary loss, funeral expenses, loss of love, care and affection. On the above grounds it is argued that the awarded compensation should be enhanced. 7. Learned counsel on behalf of respondent No.3 has supported the impugned award/judgment. It is submitted that the tribunal has rightly held that the insurer has failed to discharge the burden of proving that the driver of the offending vehicle did not have a valid and effective driving license. It is contended as per the insurance policy i.e. Ext. - F, that there is clear recital that the driver should be a person who is not otherwise disqualified from holding a valid driving licence. That no material evidence has been adduced to show that the driver was not qualified to hold a driving licence. It is urged that it would be evident from the certificate issued by the D.T.O. Office that there is no endorsement that the driver was disqualified to hold such a licence in terms of the policy. 8. Heard. That no material evidence has been adduced to show that the driver was not qualified to hold a driving licence. It is urged that it would be evident from the certificate issued by the D.T.O. Office that there is no endorsement that the driver was disqualified to hold such a licence in terms of the policy. 8. Heard. In the decision relied on by the learned counsel for the appellant-insurance company, the Supreme Court has considered the ratio laid down in the case of National Insurance Company Limited (Supra). However, it has not disputed the findings and the guidelines laid down in (Paras 110 Sub Clause iii and iv) which reads as hereunder. "110 (iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has 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 the 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 a duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) Insurance companies, 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 proof where for would be on them." As per the decision rendered in Swaran Singh''s Case (Supra) it has been held that the burden lies on the insurer to prove that the owner had acted negligently and carelessly. The tribunal has rightly held that the insurer did not examine the surveyor for proving the certificate/report neither was any application filed in the court to call for a report from the D.T.O. Office. Thus, in the circumstances it is evident that the appellant-insurance company did not discharge the burden of proving the fact that there was a breach of terms and conditions of the policy in terms of Section 149 (2). Thus, in the circumstances it is evident that the appellant-insurance company did not discharge the burden of proving the fact that there was a breach of terms and conditions of the policy in terms of Section 149 (2). It is not disputed that the deceased was a daily wage labourer. The Tribunal should have assessed the monthly income at Rs. 3,000/- p.m. and after deducting ? of Rs. 3,000/- towards personal expenses of the deceased the actual monthly income of the deceased is assessed at Rs. 2,000/- and the annual loss of dependency is assessed as (Rs.2000 x 12). The deceased was aged 35 years hence the multiplier applicable is 17. Accordingly the loss of dependency is assessed at Rs. 2,000 x 12 x 17= Rs. 4,08,000/-. The Tribunal has awarded a meagre amount of Rs. 5,000/- towards funeral expenses, loss of estate, love and affection which is not just and reasonable consequently the insurance company is directed to pay a lump sum amount of Rs. 1,50,000/- towards funeral expenses, loss of consortium, loss of estate and love and affection. The appellant/Insurance Company is directed to pay Rs. 4,08,000/- + Rs. 1,50,000/- = Rs. 5,58,000/- as compensation to the respondent claimants with interest @ 9% from 20.09.2003 in terms of the order of the court below. The insurance company is directed to pay the aforesaid compensation amount within three months from the date of receipt of a copy of the order. The impugned judgment/award is modified to the extent as noted above. In the result Miscellaneous appeal No.112 of 2008 stands dismissed and C.O. No.16 of 2009 is allowed with modification of the award to the extent as noticed above. 09. The appellant-insurance company is at liberty to proceed in accordance with law by adducing necessary evidence in the competent court for recovery by establishing the fact that there was breach of terms and conditions of the policy by the owner of the vehicle. 10. I.A. No. 2677 of 2012 stands disposed off. If the appellant-insurance company fails to pay the aforesaid compensation amount by 15.08.2017, it shall be liable to pay interest at the rate of 12% on the outstanding amount from the date of this order.