JUDGMENT : Nelson Sailo, J. 1. Heard Mr. Lalremtluanga, the learned counsel for the appellant. Also heard Mr. L.H. Lianhrima, the learned senior counsel assisted by Ms. Ruth Lalruatfeli for the respondents/ claimants. 2. It is seen that the respondents/ claimants have also filed Cross Objection No. 1/2019 and therefore, both the appeal as well as the cross objection are taken up for final disposal. 3. Brief facts of the case is that on 04.04.2014 at around 3 pm, one truck bearing Registration No. NL-02/G-2073, belonging to the respondent No. 4 and driven by one, Sh. Ram Prakash which was proceeding from Sairang towards Aizawl, ran over the husband of the claimant/respondent No. 3, who was riding his motorcycle bearing Registration No. MZ-01/J-1904 and he succumbed to his injury. The deceased at the relevant time was working as Driver Grade-I in Mizoram Agriculture Marketing Corporation Limited (MAMCO), a Government of Mizoram undertaking and was earning a sum of Rs. 34,080/- as his monthly salary. The truck was validly insured with the appellant Insurance Company and accordingly, the respondents/ claimants filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (MV Act) before the Motor Accident Claims Tribunal, Aizawl (the Tribunal) on 11.07.2016. 4. Against the claim, the appellant Insurance Company as Opposite Party No. 2 contested the case by filing their written statement contending inter alia that the claim was not maintainable, there was no cause of action in favour of the claimant and it was bad for mis-joinder and non-joinder of parties. As for the owner of the truck involved, who was arrayed as Opposite Party No. 1, she failed to contest the claim. 5. The respondent No. 3 herein in support of her claim examined herself as claimant Witness No. 1 and the Police Officer who conducted the examination as claimant witness No. 2. Both the witnesses were cross examined by the appellant Insurance Company whereafter, the learned Tribunal vide Judgment and Award dated 23.02.2018 came to a finding that it was a case of contributory negligence and accordingly fixed the contributory negligence of the parties i.e. the deceased and the truck in the ratio of 50:50. Consequently, the learned Tribunal awarded a sum of Rs. 26,73,808/- alongwith 7% interest per annum from the date of filing of the claim application to the respondents/ claimants. Consequently, the learned Tribunal awarded a sum of Rs. 26,73,808/- alongwith 7% interest per annum from the date of filing of the claim application to the respondents/ claimants. Aggrieved, the appellant Insurance Company is before this Court through the instant appeal while the respondents/ claimants also being aggrieved with the manner in which the apportionment of the contributory negligence has been made by the Tribunal has filed the cross objection. 6. Mr. Lalremtluanga, the learned counsel referring to the memorandum of appeal submits that the main grounds of challenge of the impugned Judgment and Award can broadly be summarized as follows:- (1) The insurance policy said to have been issued by the appellant Insurance Company exhibited as Exhibit C-11 is only a fake and fabricated document. (2) The evidence of the Investigating Officer clearly shows that it was the deceased who was at fault and therefore, no liability can be fastened upon the insurance company. (3) That the impugned Award is highly excessive and not justified. The learned Tribunal has awarded compensation under the conventional heads i.e. loss of love and affection, loss of expectation of life and has taken the gross salary of the deceased for calculating the compensation in violation of the Constitution Bench decision of the Apex Court in National Insurance Company Limited vs. Pranay Sethi and Others, (2017) 16 SCC 680 . 7. Mr. L.H. Lianhrima, the learned senior counsel on the other hand submits that the appellant Insurance Company has not taken permission under Section 170 of the MV Act and therefore, they cannot raise the grounds of appeal as submitted by the counsel for the appellant. He submits that the submission is also beyond the pleadings. In so far as fixing the liability of the parties on contributory negligence, the learned senior counsel submits that the learned Tribunal committed error in making the apportionment in the ratio of 50:50. He submits that from the evidence on record, the offending vehicle being a bigger and heavier vehicle, more liability ought to have been fastened upon the same. In this connection, he relies upon the following decisions:- (1) Kumari Kiran vs. Sajjan Singh and Others, (2015) 1 SCC 539 (2) Jiju Kuruvila and Others vs. Kunjujamma Mohan and Others, (2013) 9 SCC 166 (3) Dinesh Kumar J. @ Dinesh J. vs. National Insurance Co. Ltd. (2018) 1 TAC 337 (SC) 8. In this connection, he relies upon the following decisions:- (1) Kumari Kiran vs. Sajjan Singh and Others, (2015) 1 SCC 539 (2) Jiju Kuruvila and Others vs. Kunjujamma Mohan and Others, (2013) 9 SCC 166 (3) Dinesh Kumar J. @ Dinesh J. vs. National Insurance Co. Ltd. (2018) 1 TAC 337 (SC) 8. The learned senior counsel further submits that in support of the claim, the respondent/ claimant No. 3 examined herself as the claimant witness alongwith the Police Officer, who conducted the investigation. The respondents/ claimants exhibited all the relevant documents including the insurance policy, last pay certificate, post mortem report etc. during the claim proceedings. Such documents were neither objected to nor falsified by the opposite party and the appellant Insurance Company not having led its own evidence to establish that the insurance policy was a false and fabricated document, they cannot be permitted to raise such plea at this stage. Considering the fact that the deceased was a salaried employee at the time of the accident, the learned Tribunal was correct in awarding the compensation by taking his monthly salary for computing the compensation. In support of his submission, he relies upon the Apex Court decision in Manasvi Jain vs. Delhi Transport Corporation, (2014) 2 TAC 741 (SC). He also submits that the apportionment of the contributory negligence should have been made higher in respect of the offending truck since it was a bigger and heavier vehicle. Accordingly, the impugned judgment and award of the learned Tribunal should be upheld but with modification i.e., by enhancing the liability of the appellant insurance company on the apportionment of the award. 9. With regard to the appellant having gone beyond its pleadings, the learned senior counsel relies upon the decision of the Apex Court rendered in Rakesh Kumar vs. United India Insurance Company Limited, (2016) 3 TAC 337 (SC) where the case of Oriental Insurance Company Ltd. vs. Premlata Shukla and Others, (2007) 13 SCC 476 was relied upon. In so far as the appellant Insurance Company not having obtain permission under Section 170 of the MV Act, the learned senior counsel places his reliance upon the case of Josphine James vs. United India Insurance Company Ltd. (2013) 4 TAC 22 (SC). 10. I have heard the submissions of the rival parties and I have perused the materials available on record including the lower court records (LCR). 11. 10. I have heard the submissions of the rival parties and I have perused the materials available on record including the lower court records (LCR). 11. From the pleadings of the rival parties and the submissions made by the learned counsels, the issues to be considered and decided is as to whether the insurance policy exhibited by the respondent/ claimant as Exhibit C-11 is a fake and fabricated document. Secondly, whether the evidence on record goes to show that the deceased was at fault or there was contributory negligence on his part. Thirdly, whether the impugned Judgment and Award is highly excessive and Fourthly, whether the Tribunal committed an error in the manner of apportionment of the contributory negligence in the ratio of 50:50. Lastly, without obtaining permission of the Tribunal under Section 170 of the MV Act, whether the appellant can challenge the quantum of the award. 12. The respondents/claimants in the cross objection have annexed a copy of the written statement filed by the appellant Insurance Company. From a perusal of the same, no dispute has been raised with regard to the genuineness of the insurance policy nor is there a specific denial by the appellant Insurance Company that they did not issue the insurance policy. The respondent/claimant No. 3 in her examination-in-chief as already noticed, exhibited the insurance policy as Exhibit C-11. Though she was cross examined by the appellant Insurance Company, the genuineness or otherwise of the insurance policy has not been raised. It is therefore, seen that the appellant Insurance Company for the first time has questioned the genuineness of the insurance policy in the present appeal since the respondent/ claimant No. 3 has already exhibited the insurance policy while examining herself as the claimant witness, the burden was therefore upon the insurance company to show and establish that the policy was a fake document. However, the same not having been done, it will not be opened for them to question the same at the appellate stage and for the first time. The case of Rakesh Kumar (Supra) and Premlata Shukla (Supra) are found to be the authorities in this regard. 13. For the sake of convenience, the second and fourth issues as formulated hereinabove, are being taken up together. The respondent/claimant as claimant witness No. 1 in her examination-in-chief stated that she did not witness the accident. The case of Rakesh Kumar (Supra) and Premlata Shukla (Supra) are found to be the authorities in this regard. 13. For the sake of convenience, the second and fourth issues as formulated hereinabove, are being taken up together. The respondent/claimant as claimant witness No. 1 in her examination-in-chief stated that she did not witness the accident. However, she stated that the accident took place on 04.04.2014 at 3.00 pm at Sairang Dawr Veng when the offending truck bearing Registration No. NL-02/G-2073 ran over her husband resulting to his death on the spot. The claimant witness No. 2, who was the Investigating Officer in his examination-in-chief deposed that on receiving information about the accident, he went to the spot and found that the offending truck had run over the deceased who was riding a motorcycle. On making an investigation, he found that the truck was coming from Sairang and proceedings towards Silchar while the motorcycle was coming from the opposite direction. There was a traffic jam and while the deceased was trying to maneuver in the traffic, he fell down and was run over by the truck. Therefore, U/D Case No. 4/2014 dated 24.04.2014 was registered. He further stated that it was also a fact that the deceased had contributed to the accident by maneuvering his way between a vehicle in a traffic jam. In his cross examination, he stated that both the truck and the motorcycle were equally at fault and had both the drivers been careful, the accident would not have happened. He also stated that all the documents of the defaulting truck were valid and upto-date. 14. From what can be noticed in the evidence, the deceased apparently contributed to the accident by trying to maneuver his way between the vehicles in a traffic jam, the Apex Court in the case of Kumari Kiran (Supra) and Jiju Kuruvila (Supra) considering the vehicle which was found to be at fault to be the heavier vehicle, Court fixed a higher liability on the heavier vehicle. However, in the present case as can be seen from the evidence of claimant witness No. 2, the deceased himself had contributed in causing the accident as he was trying to maneuver his way between the vehicles in a traffic jam and in the process, he fell down and was ran over by the rear wheel of the truck on the right side. Under the circumstance, I find the apportionment of the liability fixed by the Tribunal to be justified. 15. The next issue is as to whether the impugned Award is highly excessive and not justified. From a perusal of the impugned Judgment and Award, it can be noticed that the Tribunal has taken the annual income of the deceased as reflected in his last pay certificate, which was exhibited as Exhibit C-15. Exhibit C-15 comprises of the basic pay, the admissible dearness allowance, special compensatory allowance, house rent allowance etc. The gross amount therefore comes to Rs. 34,080/-. From the gross salary, deductions made are towards employees provident fund, pay roll saving, life insurance etc. which works out to a sum of Rs. 9,783/-. 16. The Apex Court in the case of Manasvi Jain (Supra) by relying upon its earlier decision i.e. Shyamwati Sharma and Others vs. Karam Singh and Others, (2010) 12 SCC 378 held that the deduction towards income tax/ surcharge alone should be considered to arrive at the net income of the deceased. The deceased in the present case admittedly belongs to the reserved category and therefore, he was not an income tax assessee. As such, the monthly income of the deceased will have to be taken as Rs. 34,080/-. In so far as the determination of the compensation under the conventional head is concerned, the Constitution Bench decision of the Apex Court in Pranay Sethi and Others (Supra) will have to be followed. In short, the respondents/ claimants will only be entitled to a sum of Rs. 40,000/- towards loss of consortium, Rs. 15,000/- each towards loss of estate and funeral expenses. 17. In so far as the issue with regard to taking permission under Section 170 of the MV Act is concerned, it may be noticed that the Apex Court in the case of United India Insurance Company Limited vs. Shila Datta and Others, (2011) 10 SCC 509 held that if the insurer is already impleaded as a party respondent, it need not seek permission of the Tribunal under Section 170 of the MV Act to raise grounds other than those mentioned in Section 149 (2) of the MV Act. Coming to the present case, it may be seen that the Insurance Company has been already impleaded as the opposite party No. 2 before the Tribunal and as such, the objection raised by the learned senior counsel for the claimants/ respondents cannot be accepted. However, the fact remains that the appellant Insurance Company has not raised any ground with regard to the excessiveness of the award in the appeal. Therefore, without there being any pleadings to this effect, I am not inclined to accept the oral submission of the learned counsel for the appellant Insurance Company. The case of Rakesh Kumar (Supra) relied upon by the learned senior counsel for the claimants/ respondents will again be attracted in this connection. 18. In the result, the impugned Judgment and Award of the Tribunal is modified as below:- 1. Annual Income = Rs. 34080 x 12 Rs. 4,08,960/- 2. Addition of 30% future prospect Rs. 408960 x 30 ----- 100 1,22,688/- 3. Loss of income = Rs. (408960 + 122688) x 13 x 2 Rs. 46,07,616/- ----- 3 After deduction of 50% as contributory Negligence Rs. 4607616 x 50 ----- 100 Rs. 23,03,808/- 4. Loss of Consortium Rs. 40,000/- 5. Funeral expense Rs. 15,000/- 6. Loss of estate Rs. 15,000/- Total Rs. 23,73,808/- (Rupees Twenty three lakh seventy three thousand eight hundred and eight) only. 19. Hence, the respondents/ claimants will be entitled to a sum of Rs. 23,73,808/- (Rupees twenty three lakh seventy three thousand eight hundred and eight) only alongwith interest @ 7% per annum from the date of filing the claim application i.e. 11.07.2016 till final payment. The amount of compensation be deposited before the Tribunal in the form of account pay check or in cash or demand draft in favour of the Presiding Officer, Motor Accident Claims Tribunal, Aizawl within a period of two months from the date of receipt of a certified copy of this order. Out of the awarded amount, an amount of Rs. 500,000/- (Rupees five lakh) each will be kept in a fixed deposit in favour of the two children viz. Vanlalruatfeli and Paul Lawmsangzuala in a Nationalized Bank which can be withdrawn by them after five (5) years. The rest of the amount can be withdrawn by the respondents/ claimants on proper identification and as per usual formalities. 20. 500,000/- (Rupees five lakh) each will be kept in a fixed deposit in favour of the two children viz. Vanlalruatfeli and Paul Lawmsangzuala in a Nationalized Bank which can be withdrawn by them after five (5) years. The rest of the amount can be withdrawn by the respondents/ claimants on proper identification and as per usual formalities. 20. With the above observations and directions, the appeal as well as the cross objection are both disposed of. 21. Registry to send back the LCR to the Tribunal immediately.