JUDGMENT :

S. Hukato Swu, J.

1. This is an appeal under Section 173 of the Motor Vehicle Act, 1988 preferred against the judgment and order dated 24.01.2019, passed by the learned Member, MACT, Dimapur, Nagaland (the Tribunal) in MAC Case No. 115/2013 awarding a compensation of Rs. 12,94,501/- against the accidental death of Bimol Singh Terang, who was allegedly knocked down by the offending vehicle bearing Registration No. AS-09/A-0721 (608 Bus), on 23.01.2013. It is claimed that the deceased was a pedestrian knocked down by the offending vehicle. The appellant insurer company, who is the United India Insurance Company Limited, represented by its Branch Manager, Dimapur, Nagaland has challenged the award basically on the ground that:

(1) The learned Member MACT, Dimapur has not marshalled the evidences brought before the Tribunal while passing the award. It is the plea of the appellant that the company's investigator had investigated the case and it was ascertained that the deceased was not a pedestrian who was knocked down by the offending bus. Rather the victim was a passenger in the ill fated bus and the victim was travelling on the roof of the bus and was hit by bamboo at the forest gate. As a result of the impact, the deceased fell down from the roof of the bus and sustained injuries which were fatal and later succumbed to his injuries during the course of treatment at Guwahati. It is therefore, argued that what has been arrived at by the learned Tribunal is misconceived. This being the facts of the matter, the vehicle owner committed breach of insurance contract as it is forbidden to travel on the roof of a bus. The insurance coverage is limited only to those passengers travelling inside the bus, the conductor and the driver and it does not cover passengers who are travelling on the rooftop of the vehicle. The liability, therefore, could not be fastened upon the insurer when the vehicle was used in breach of the insurance policy. It is argued that the insurance under the circumstances must be wholly exonerated from the tortious liability and the same must be fastened upon the vehicle owner and the driver who committed the offence.

(2) The second ground of appeal that is arrayed is that the investigator, on examination of the documents that was placed before the learned Tribunal clearly indicated that the driver of the offending vehicle was not in possession of a valid driving license. It is contended that the driving license possessed by the offending driver Shri Prabir Paul bearing Driving License No. 109042/MTH/DTO, Thoubal was verified by the investigator of the petitioner, Mr. Sushank Sarkar and it was ruled that the driving license was issued in the name of Shri Mahashi Ram, S/o Late S.H. Ram. The DTO, Thoubal has issued the driving license in the name of Shri Mahashi Ram and not in the name of Shri Prabir Paul, the driver of the offending vehicle, hence, the driver was in possession of a fake license and not a valid driving license as concluded by the learned Tribunal.

(3) The third ground taken by the appellant is that the income certificate of the deceased, Shri Bimal Singh Terang, was not testified by the concerned proprietor who issued the certificate of income and thus, the income of the deceased is not proved and subject to modification if it is shown that the victim is entitled to compensation, if any.

The records of MAC Case No. 115/2013 was called for and examined by this Court. On the first contention, it is relevant to discuss the evidence that was placed before the learned Tribunal which are the translated copy of the ejhar under Annexure-IV contained at Page 209 of the LCR, which was filed by the brother of the victim himself, is reproduced here under:

"Sub: Ajahar

With due respect, I would like to inform you that on 23/01/2013, my elder brother, late Bimal Singh Terang, S/o Late Kharsing Singh Terang,