JUDGMENT Sachin Shankar Magadum, J. - The claimants as well as the owner of the offending vehicle have filed appeals challenging the judgment and award passed in MVC.No.5275/2015. The claimants have filed appeal in MFA.No.6984/2017 challenging the quantum as well as liability. The owner has filed appeal in MFA.No.6815/2017 challenging the liability. 2. For the sake of convenience, the parties are referred to as per their rank before the Tribunal. 3. The facts leading to the case are as under: The claimants who are the wife, children and parents of one Suresh filed claim petition by contending that on 08.06.2013 at about 7.00 p.m., the husband of claimant No.1 namely Suresh was proceeding in a Toyota Car bearing Reg.No.KA-02-MF- 2969 along with one Gangadhar. The claimants have specifically averred in the claim petition that one Raghuram was driving the said vehicle. The claimants have further averred in the claim petition that the accident occurred on account of rash and negligent driving by the said Raghuram. The claimants have further averred that the said Suresh on account of fatal injuries succumbed on the spot. The claimants have contended that deceased Suresh was hale and healthy prior to the accident and was doing Automobile business and was earning Rs.3,00,000/- to Rs.4,00,000/- per annum. The claimants further contended that they were totally dependent on the income of the deceased and hence, filed claim petition claiming compensation of Rs.80,00,000/-. On receipt of notice, the respondent No.1/owner has filed written statement and has admitted that he is the owner of the offending Toyota Car involved in the accident. He has specifically contended that the vehicle is duly insured with the respondent No.2/Insurance Company and policy was on force as on the date of accident. The respondent No.1/owner further has specifically averred in the written statement that the Secretary of respondent No.1/Soceity namely Ravi Kiran had a close acquaintance with deceased Suresh and at the request of Suresh, the vehicle was entrusted to Suresh, husband of claimant No.1. The respondent No.1/owner also contended that Suresh had driving licence and accordingly, the vehicle involved in the accident was taken by Suresh. The respondent No.1/owner also contended that Suresh had driving licence and accordingly, the vehicle involved in the accident was taken by Suresh. Insofar as the claim made by the claimants is concerned, the respondent No.1/owner disputed the age, occupation and income of the deceased and also contended that the compensation sought by the claimants is highly exorbitant and on these set of grounds, sought for dismissal of the claim petition. The respondent No.2/Insurance Company filed written statement and stoutly denied the entire averments made in the claim petition. The respondent No.2 specifically contended that the owner of the offending vehicle has not complied with the mandatory duties and driver of the vehicle involved in the accident did not possess valid and effective driving licence and hence, insured had violated the terms and conditions of the policy. The respondent No.2 also contended that there is no nexus between the death of deceased and alleged accident. The quantum of compensation claimed was also seriously disputed by the respondent No.2. On these set of facts, sought for dismissal of the claim petition. Based on the above pleadings, the Tribunal formulated the following issues: 1) Whether the petitioners prove that Suresh H.C. S/o H.C. Chikkrangaiah died due to injuries sustained by him in accident occurred on 08.06.2013 at about 07.00 p.m., on Kunigal-Nelamangala road, HN-48, in front of Shivashakthi Petrol bunk, Mahadevapura Kasaba Hobli, Nelamangala, Bengaluru District, arising due to rash and negligent driving of the driver of TOYOTA Car bearing No.KA-02-MF-2969? 2) Whether the petitioners are entitled for compensation? If so, how much and from whom? 3) What Order or Award? The claimants in support of their contention examined claimant No.1 namely Meenakshi as PW.1 and in support of ocular evidence, the claimants have relied on documentary evidence vide Exs.P-1 to P-25. The respondent No.1/owner has examined its administrative officer as RW.1 and has furnished the copy of policy as per Ex.R-2. The respondent No.2/Insurance Company in support of its contention has examined RWs.2 and 3 and has relied on documentary evidence vide Exs.R-4 to R-8. The Tribunal having assessed the oral and documentary evidence, has awarded compensation of Rs.20,55,000/-. The respondent No.1/owner has examined its administrative officer as RW.1 and has furnished the copy of policy as per Ex.R-2. The respondent No.2/Insurance Company in support of its contention has examined RWs.2 and 3 and has relied on documentary evidence vide Exs.R-4 to R-8. The Tribunal having assessed the oral and documentary evidence, has awarded compensation of Rs.20,55,000/-. While examining the liability, the Tribunal has come to conclusion that respondent No.1/owner has violated the Driver s clause contemplated in the insurance policy as per Ex.R-2 and relying upon the said clause of the insurance policy, the Tribunal has held that the said violation goes to the root of the contract of insurance and as such, liability of respondent No.2/Insurance Company stands exonerated from indemnifying the respondent No.1/owner. The Tribunal has recorded a finding that accident is on account of negligence of driver of the offending car and hence, respondent No.1/owner is liable to pay compensation and interest to the claimants. 4. Learned counsel appearing for the respondent No.1/owner in MFA.No.6815/2017 would vehemently argue and contend before this Court that the finding of the Tribunal fixing liability on respondent No.1/owner is palpably erroneous and contrary to clinching rebuttal evidence adduced by the respondent No.1/owner. Learned counsel appearing for the respondent No.1/owner would contend that the finding of the Tribunal that driver of the offending vehicle was negligent and accident has occurred on account of driver not possessing the driving licence suffers from perversity and hence, warrants interference by this Court. Learned counsel would further submit to this Court that there is clinching evidence on record to indicate that Suresh was close friend of Secretary of respondent No.1 Society and in this background, the vehicle was entrusted to Suresh and it is the specific case of the respondent No.1/owner that it was Suresh who was driving the offending vehicle. In this background, learned counsel would submit to this Court that the finding of the Tribunal in fixing liability on the respondent No.1/owner is palpably erroneous and contrary to clinching evidence on record coupled with categorical admission given by PW.1 which is totally ignored by the Tribunal. 5. Learned counsel appearing for the respondent No.2/Insurance Company would, however, support the findings recorded by the Tribunal on liability. 5. Learned counsel appearing for the respondent No.2/Insurance Company would, however, support the findings recorded by the Tribunal on liability. Learned counsel appearing for the Insurance Company would contend before this Court that the driver of the offending vehicle did not possess driving licence and as such, there was fundamental breach of policy condition which would exonerate the Insurance Company from indemnifying the insured i.e., the respondent No.1/owner. The finding recorded by the Tribunal on liability is in accordance with law and the same is arrived at by examining the evidence on record. The finding of the Tribunal does not suffer from any error or illegality and as such, would not warrant any interference by this Court. 6. Per contra, learned counsel appearing for the claimants in MFA.No.6984/2017 would contend before us that the compensation determined by the Tribunal is very much on the lower side. He would vehemently argue and contend that the income of the deceased assessed by the Tribunal is contrary to the clinching evidence on record and further, he would contend that the Tribunal has not added future prospects while determining the compensation under the head of loss of dependency since deceased was hardly aged about 43 years at the time of accident. He would also submit that there are six dependents and the award determined under the conventional heads is also on the lower side and hence, he prays to this Court to enhance the compensation. 7. Heard learned counsel for respondent No.1/owner, learned counsel for the claimants and learned counsel for the respondent No.2/Insurance Company. On perusal of the pleadings, oral and documentary evidence, the following questions would arise for our consideration: 1) Whether the finding of the Tribunal that on account of fundamental breach of policy conditions by the respondent No.1/owner, who has entrusted the vehicle to Raghuram who did not possess Driving Licence, the respondent No.2/Insurance Company has to be exonerated from indemnifying the respondent No.1/owner and the liability has to be fastened on the insured i.e., respondent No.1/owner, is perverse and contrary to the clinching evidence on record? 2) Whether the compensation determined by the Tribunal needs any interference by this Court? Re: Point No.1: 8. The Tribunal while examining the liability has relied on ocular evidence of respondent No.1 who happens to be the Administrative Officer of respondent No.1/Society. 2) Whether the compensation determined by the Tribunal needs any interference by this Court? Re: Point No.1: 8. The Tribunal while examining the liability has relied on ocular evidence of respondent No.1 who happens to be the Administrative Officer of respondent No.1/Society. The respondent No.1 has tried to make out a case that the vehicle was entrusted to Suresh who happens to have a close acquaintance with the Secretary of respondent No.1/Soceity. On perusal of reasons assigned by the Tribunal, it is forthcoming that entire burden is cast on respondent No.1/owner to prove that the driver of the offending vehicle namely Raghuram possessed valid and effective driving licence. The Tribunal has arrived at the conclusion that respondent No.1 has failed to substantiate its defence in that regard. The Tribunal thereafter relying on charge sheet filed against the driver of the offending car wherein the offence punishable under Section 181 of Motor Vehicles Act is also included, has proceeded with an assumption that the driver of the offending car did not possess valid and effective driving licence. The Tribunal proceeded to accept the ocular evidence of RW.3 who is the police officer/Investigating Officer examined on behalf of respondent No.2/Insurance Company. The Tribunal was of the view that his evidence is in consonance with the charge sheet at Ex.P-7 and Ex.R-8. The Tribunal was also of the view that respondent No.1/owner has failed to rebut the evidence of RWs.2 and 3 and has also failed to produce the driving licence. In this background, the Tribunal has come to conclusion that there is absolutely no rebuttal evidence to disbelieve the evidence of RW.3 in regard to driver of the offending car holding any licence. The Tribunal has further by relying on the drivers clause in insurance policy at Exs.R-2 and R-5 has recorded a finding that the respondent No.1/owner has violated the above clause and in this background, has come to conclusion that respondent No.2/Insurance Company shall be exonerated from indemnifying the respondent No.1/owner. On these set of reasonings, the Tribunal has fastened liability on respondent No.1/owner. 9. On meticulous examination of the pleadings of the parties and also ocular evidence, we are of the view that the Tribunal has virtually misread the defence raised by the respondent No.1/owner. On these set of reasonings, the Tribunal has fastened liability on respondent No.1/owner. 9. On meticulous examination of the pleadings of the parties and also ocular evidence, we are of the view that the Tribunal has virtually misread the defence raised by the respondent No.1/owner. It is the specific case of the respondent No.1/owner that the husband of claimant No.1 namely Suresh had close acquaintance with the Secretary of respondent No.1/Society. A specific case is made out during trial that Suresh used to often take the vehicle of the Society. The fact that Suresh was close friend of Secretary is elicited in cross of PW.1, where she has admitted in unequivocal terms that her husband had close acquaintance with the Secretary of respondent No.1/Society. It is also elicited in cross-examination that Ravi Kiran had contested for M.L.A. election and her husband had helped the said Ravi Kiran in election campaign. The respondent No.1/owner has also succeeded in eliciting in cross-examination that on account of untimely death of Suresh, PW.1 was offered an employment with the respondent No.1/Society wherein she was working as a kitchen incharge of College Hostel belonging to respondent No.1/Society situated at Anjananagar. 10. If these significant details are taken into consideration, it is clearly evident that respondent No.1/Society had handed over the vehicle to Suresh and not to Raghuram. It is also elicited by respondent No.1/owner in cross-examination that Suresh also owned a car and he was driving on his own. If this ocular evidence and relevant cross-examination of PW.1 are taken into consideration, it is clearly evident that the vehicle was entrusted to Suresh. There is absolutely no evidence available on record to indicate that respondent No.1 had entrusted the vehicle to Raghuram. Further, there is absolutely no clinching evidence to demonstrate that respondent No.1 had entrusted the vehicle to Raghuram knowing fully well that he did not possess driving licence. If this relevant portion of evidence is analyzed, we are of the view that respondent No.2/Insurance Company has miserably failed to establish that respondent No.1/owner has recklessly entrusted the vehicle to a person who did not possess driving licence to drive the offending car which was involved in the accident. 11. On meticulous examination of the reasoning assigned by the Tribunal, we would also find that the Tribunal erred in wrongly casting burden on respondent No.1/owner. 11. On meticulous examination of the reasoning assigned by the Tribunal, we would also find that the Tribunal erred in wrongly casting burden on respondent No.1/owner. It is the specific case of respondent No.2/Insurance Company which is forthcoming from para 4 of the written statement, wherein the respondent No.2/Insurance Company has specifically pleaded that the driver of the offending car was not possessing valid and effective driving licence and the respondent No.1/owner knowing this aspect had entrusted the said car to the driver and thereby there is a willfull breach of terms and conditions and this act of recklessness entrustment would absolve the liability on respondent No.2/Insurance Company from indemnifying the liability. On meticulous examination of the evidence on record, more particularly, the evidence of RW.3 who is the Investigating Officer, the respondent No.1/owner has succeeded in eliciting more material facts in cross-examination which would negate the contention of respondent No.2/Insurance Company that the driver of the offending vehicle did not possess driving licence. On meticulous examination of cross-examination of the Investigating Officer by respondent No.1/owner, it is clearly evident that Investigating Officer who was examined as RW.3 has admitted in unequivocal terms that he has not secured any endorsement from RTO before coming to conclusion that Raghuram was not holding licence. He has also admitted in his cross-examination that since driving licence of Raghuram is not produced during investigation, he was charge sheeted for the offence punishable under Section 181 of MV Act. This admission would rather clinch the issue. 12. Learned counsel appearing for the respondent No.1/owner has relied on the judgment of the Division Bench of this Court rendered in The General Manager, ICICI Lombard Gen. Ins. Co. Ltd. Vs. Rajendrasingh and Others, (2016) ILR(Kar) 1409 . The Division Bench of this Court while examining the identical issue had relied on the proposition laid down by the Hon ble Apex Court in Rukmini vs. New India Assurance Co, (1998) 9 SCC 160 . Ins. Co. Ltd. Vs. Rajendrasingh and Others, (2016) ILR(Kar) 1409 . The Division Bench of this Court while examining the identical issue had relied on the proposition laid down by the Hon ble Apex Court in Rukmini vs. New India Assurance Co, (1998) 9 SCC 160 . The Division Bench while interpreting the proposition laid down by the Hon ble Apex Court in Rukmini s case held that the burden is cast on the Insurance Company under Section 149(2) of MV Act and unless the said burden is discharged by the Insurance Company and the same is proved by placing clinching evidence on record to show that the owner of the vehicle has violated the terms and conditions which is fundamental in character, the Insurance Company cannot escape the liability. 13. On examining the above said proposition, we are of the view that the Tribunal erred in casting burden on respondent No.1/owner to prove that driver of the offending vehicle was possessing driving licence. The conclusions arrived by us in the present case on hand are in two folds. The evidence on record clearly demonstrates that the vehicle was entrusted to Suresh and not to Raghuram and there is clinching evidence to that effect. If this is accepted, then the question of recklessness entrustment of vehicle to Raghuram by respondent No.1/owner as alleged by respondent No.2/Insurance Company cannot be accepted. The second conclusion that is arrived by this Court is even in respect of allegations that Raghuram did not possess licence, there is no clinching evidence adduced by respondent No.2/Insurance Company. Admittedly, the Investigating Officer who is examined as RW.3 has admitted in unequivocal terms that he has not secured any endorsement in that regard from the competent authority. The relevant section is mentioned in the charge sheet on the ground that no driving licence of Raghuram was produced during investigation. The Tribunal by relying on the charge sheet has proceeded to hold that the driver of the offending vehicle did not possess driving licence. This finding is in absence of evidence to that effect. The Tribunal has totally misread the evidence on record and has also wrongly cast the burden on respondent No.1/owner to establish that Raghuram had possessed driving licence. This finding is in absence of evidence to that effect. The Tribunal has totally misread the evidence on record and has also wrongly cast the burden on respondent No.1/owner to establish that Raghuram had possessed driving licence. This finding is contrary to settled proposition of law laid down by the Hon ble Apex Court in National Insurance Company Limited .vs. Swaran Singh and others, (2004) 3 SCC 297 . 14. On bare reading of para 4 of the written statement filed by the respondent No.2/Insurance Company, it is the specific case that it is the Insurance Company which has complained breach of terms of contract of insurance and the defence raised is that the driver of the vehicle did not possess licence. Hence, the burden was squarely on the Insurance Company which had complained breach. It is the specific case of the Insurance Company that respondent No.1 had willfully entrusted the vehicle to a person who had not possessed licence, then the burden is naturally on the Insurance Company to establish the above said material aspect. On meticulous examination of the entire evidence on record, there is absolutely no evidence on record to indicate that there was a willful violation on the part of the owner. Per contra, the clinching evidence and categorical admissions elicited from the mouth of PW.1 clearly establishes that the vehicle was entrusted to husband of claimant No.1 namely, Suresh who had acquaintance with the Secretary of respondent No.1/Society. Since the evidence lead in by the respondent No.1 appears to be probable and in absence of credible evidence lead in by respondent No.2/Insurance Company, the Tribunal erred in holding that there is fundamental breach by relying on first information report and charge sheet. We are of the firm view that the Tribunal grossly erred in accepting the defence set in by the respondent No.2/Insurance Company in absence of clinching evidence to support their claim as pleaded at para 4 of the written statement. Since there is absolutely no evidence lead in by the respondent No.2/Insurance Company to corroborate their pleadings at para 4 of the written statement to the effect that respondent No.1/owner had consciously allowed a person to drive the vehicle who did not have a valid driving licence, the Tribunal erred in dismissing the claim petition against the respondent No.2/Insurance Company. Since there is absolutely no evidence lead in by the respondent No.2/Insurance Company to corroborate their pleadings at para 4 of the written statement to the effect that respondent No.1/owner had consciously allowed a person to drive the vehicle who did not have a valid driving licence, the Tribunal erred in dismissing the claim petition against the respondent No.2/Insurance Company. The Tribunal has virtually lost sight of two material facts, firstly, that respondent No.2/Insurance Company has failed to establish the entrustment of vehicle to Raghuram and secondly, the Insurance Company has also failed to establish that person who was driving the vehicle as per the police records did not possess driving licence. The Tribunal could not have come to conclusion that the driver of the offending vehicle did not possess driving licence merely by relying on FIR and charge sheet. 15. In that view of the matter, the finding recorded by the Tribunal that there is fundamental breach by the owner of the vehicle involved in the accident and as such, the provisions of Section 149(2) of MV Act would come into play and the respondent No.2/Insurance Company is not liable to satisfy the compensation is palpably erroneous and same is liable to be set aside by this Court. 16. For the reasons stated supra, the finding recorded by the Tribunal on liability is perverse and palpably erroneous and accordingly, point No.1 is answered in the affirmative. Re: Point No.2: 17. The Tribunal has notionally assessed the income of the deceased at Rs.15,000/- p.m. and by deducting 1/4th towards personal expenses of the deceased and by applying multiplier of 14 has proceeded to award a sum of Rs.18,90,000/- under the head loss of dependency. 18. On re-appreciation of entire oral and documentary evidence, we would find that the deceased was running Automobile Service Centre in the name and style of Solar Power Motors . The service centre is located at Rajajinagar. In cross, it is also elicited from the mouth of PW.1 that deceased had availed loan and the same was cleared by deceased himself. Further, there is a specific denial by PW.1 to the suggestion made by the Insurance Company that even after death of deceased, the Automobile shop is still running. However, it is also forthcoming further that PW.1 has stated that she has not produced document to prove that business is closed. Further, there is a specific denial by PW.1 to the suggestion made by the Insurance Company that even after death of deceased, the Automobile shop is still running. However, it is also forthcoming further that PW.1 has stated that she has not produced document to prove that business is closed. If the entire evidence on record is meticulously examined, we would find that the income assessed by the Tribunal at Rs.15,000/- p.m. appears to be on the lower side. Though no documents are placed on record to demonstrate the actual income of the deceased, having regard to the documentary evidence available on record which clearly proves that deceased was running Automobile Service Centre, we would notionally assess the income of the deceased at Rs.20,000/- p.m. Admittedly, deceased was aged 43 years and by adding 25% future prospects, the income of the deceased comes to Rs.25,000/- and by deducting 1/4th towards personal expenses of deceased and by applying the multiplier of 14, the compensation payable under the head loss of dependency would come to Rs.31,50,000/- (18,750x12x14) as against Rs.18,90,000/- awarded by the Tribunal. The deceased is survived by widow, three children and old aged parents. Hence, Rs.40,000/- is awarded to claimant No.1 under the head spousal consortium, Rs.40,000/- each is awarded to claimant Nos.2 to 4 who are the children under the head parental consortium and Rs.40,000/- each is awarded to claimant Nos.5 and 6 who are the parents under the head filial consortium. Under the other conventional heads a sum of Rs.30,000/- is awarded. Hence, the total compensation redetermined by this Court comes to Rs.34,20,000/- as against Rs.20,55,000/- awarded by the Tribunal. Accordingly, point No.2 formulated above is answered in the affirmative. 19. Hence, the following: ORDER i) The appeal filed by the owner in MFA.No.6815/2017 as well as the appeal filed by the claimants in MFA.No.6984/2017 are allowed. ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.34,20,000/- as against Rs.20,55,000/- with interest at the rate of 6% per annum from the date of the claim petition till its realization. iii) The portion of the order of the Tribunal inasmuch as apportionment and disbursement remains intact. iv) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order. iii) The portion of the order of the Tribunal inasmuch as apportionment and disbursement remains intact. iv) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order. v) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal. vi) Draw modified award accordingly. vii) The Registry shall transfer the amount in deposit with original records to the jurisdictional Tribunal forthwith.