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. 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, at Kheroni, boarded at the roof of the vehicle No. AS-09-A-0721 (608 Bus), due to non-availability of seat within the bus and unfortunately, due to high speed of the bus he fell down at Kheroni amorong forest road, Bormatikhola. Although he was immediately arranged to get admitted at Kheroni hospital, but considering the grievous injury he was sent to Guwahati Medical Hospital for advanced treatment but he succumbed to his injury. Submitted that to observe the rituals of Karbi Tribe, ajahar caused delay and Post-mortem was done at Guwahati Medical Hospital. Therefore, requested to take necessary action in this regard." Furthermore, Annexure-V contained at Page 210 which throws light on the status of the accident pertaining to the victim is extracted herein below: "No. 472 Now, one Shri Babu Inti, of Barmati Ghola informed over phone that, a person boarding roof of the vehicle No. AS-09-A-0721 (608 Bus) which was proceeding towards Jirikingding from Nagaon, fell down having been dashed against the forest gate at Barmati Ghola. On being reported about sustanation of injury of the said person, after been GDE, Sri. Ajit Terang, S.I. have been deputed for necessary investigation and action. Sd. S.I. Badan Ch. Das Officer-in-charge Kheroni Police Station Dtd. 23/01/2013. No. 478 Now, S.I. Mr. Ajit Singh and staff members' returning from duty in this context of above G.D.E. No. 472, informed the police station that one, Sri. Biren Singh Terang, S/o. (L) Kharsing Terang of village Rikang Niham P.P. Thana Kheroni, Dist. Karbi Anglong, who was boarded the roof of the Bus No. AS-09-A-0721 (608 Bus), and fell down from that bus resulting from dashing against a bamboo of Forest gate at Baramati Ghola. As the person sustained grievous injury, the local neighbourhood of the accident spot immediately send him to Kheroni SHC. Considering the serious injury he is sent to Hojai for advanced treatment and meantime, he, has given medical treatment and meantime, he, injury treatment. Reported that driver of the accident bus been absconded from the spot, locally one driver was managed and brought the vehicle to Police Station. Further, informed that the passengers of the bus was sent to their respective destination on being managing a vehicle and to this effect necessary record maintaied in the register. Sd. S.I. Badan Ch. Das Officer-in-charge Kheroni Police Station Dtd. Further, informed that the passengers of the bus was sent to their respective destination on being managing a vehicle and to this effect necessary record maintaied in the register. Sd. S.I. Badan Ch. Das Officer-in-charge Kheroni Police Station Dtd. 23/01/2013." (4) The deposition of DW-1, who is the investigator assigned by the United India Insurance Company to investigate MAC Case No. 115/2013 is contained at Page 235 of the LCR, which is reproduced for clarity: "The Deposition of witness No. D.W. 1 age about 48 years, taken on oath or solemn affirmation, before the Member, MACT this 28th day of April' 2016. My name is Sushank Sarkar. My fathers name is Lt. S.B. Sarkar. My home is at Mauza Belotle Police Fetasil, District Kamrip. I resident at present in Mauza Beltole Police Station Fatasil District Kamrep. Whereas I am Shri Sushank Sarkar, I am the investigator assigned by the United India Insurance Co. to investigate MAC Case No. 115/13. During the course of my investigation, I found some contradictory report against the present claim petition. As contrary to the Para 10 of the claim petition I found that the deceased was travelling on the ill-fated Bus B/R No. AS 09/A-0721 (608 Bus) that the deceased was sitting on the roof of the bus which was hit by a bamboo at forest gate as a result the deceased fall down from the bus and sustain grievous head injury which cause him death. Right after the accident the victim was taken to Caroni SHC later on was shifted to Hojai Hospital. That was the report I found from the Police Station, Caroni through S.P. Vide GDE No. 472/13 and 478/13 dated 23.01.2013. I have been received the FIR copy from the S.P. that the victim was travelling on the roof of the bus. As per the claim petition Shri Prabir Paul driving the vehicle Vide Driving License No. 109042/MTH/DTO, Thoubal. In regard to this I have verified the said driving license at the issuing authority but in the office record the said driving license was issued in the name of Shri Mahashi Ram, S/o Lt. Sh. Ram. Hence it reveals that the said driving license was not issued in the name of Shri Prabir Paul by D.T.O., Thoubal. It clearly shows that Shri Prabir Paul was possessing a false driving license. Sh. Ram. Hence it reveals that the said driving license was not issued in the name of Shri Prabir Paul by D.T.O., Thoubal. It clearly shows that Shri Prabir Paul was possessing a false driving license. XXX Claimant: It was correct to say that I am the authorized investigator of United India Insurance Company however, I have not exhibit or file the same before the Tribunal. It is correct to say that I have not exhibited my investigation report before the Tribunal. It is correct to say that there was an accident on 23.01.2013 involving a bus B/R No. AS 09/A-0721. It is correct to say that as per my investigation report the accident took place due to rash and negligent driving by the driver Shri Prabir Paul, S/o Lt. Jutu Mary. It is correct to say that the letter issued by S.P. dated 07.10.2013 and 07.12.2013 there is no averments or no mentioning that the deceased was sitting on the roof of the said bus. It is correct to say that in my investigation I have reported that the deceased (Bimol Sing Terang) was earning Rs. 6,000/- per month as Salesman in a grocery shop. It is correct to say that Lt. Bimol Sing Terang died due to the accident which occurred on 23.01.2013. It is correct to say that my investigation report was a per my findings and not my opinion. It is correct to say that I am not the author of the documents dated 26.10.2013. I deny the suggestion that I have stated false before the Tribunal. Sd/- Member" (5) Deposition of DW-2, who is Shri Pradip Kumar Saha, Administrative Officer of United India Insurance Company Limited, Tinsukia, Assam is contained at Page 242 and 243 which is reproduced herein below: "The Deposition of witness No. D.W. II age about 54 years, taken on oath or solemn affirmation, before the Member, MACT this 30th day of 2017. My name is Pradip Kr. Saha. My Fathers name is Lt. CD. Saha. My home is at Mauza Tinsukia, Police Station Tinsukia District Tinsukia. I resident at present in Mauza Tinsukia Police Station Tinsikia District Tinsukia. Whereas I am the Administrative Officer of the United India Ins. Co. Ltd. Tinsukia, Assam. I am here today to depose on behalf of the Insurer in MAC case No. 115/13 with the authorization from Divisional Office, Jorhat, Assam. Presently the claimant Smti. I resident at present in Mauza Tinsukia Police Station Tinsikia District Tinsukia. Whereas I am the Administrative Officer of the United India Ins. Co. Ltd. Tinsukia, Assam. I am here today to depose on behalf of the Insurer in MAC case No. 115/13 with the authorization from Divisional Office, Jorhat, Assam. Presently the claimant Smti. Kave Chopi W/0 Lt. Bimol Singh Terang filed an application claiming for compensation on account of the death of their husband. The accident occurred on 23.1.2013 at Bhormatikala, Forest Gate Kharoni Police Station allegedly Bus B/R No. AS-09-A-0721 (Bus) involved in the said accident. The vehicle involved in the accident was insured with over company at Diphu Branch involved in the accident was insured with over company at Diphu Branch Bearing Policy No. 131002/31/2/P/301472926 period of Insurance 27.12.12 to 26.12.13. As per the police report and investigation report the deceased was not the occupant fare paying passenger of the bus, by the was sitting on the roof of the bus and hit by the bamboo of the forest gate and fall down from the bus and succumbed to his injuries. In this regard there is no coverage from the said policy which was insured by the owner of the bus, since the policy cover for those who are fare paying passenger as per the sitting capacity of the bus. As per the terms and condition of the policy the company is not liable in the instant case because of the breach of the policy terms and conditions, firstly the victim allegedly claim compensation in the case was not a bona fide passenger of the ill fated bus, because it was clearly established from the fact that the deceased was sitting on the roof of the bus, for which the police report and copy of FIR was translated and exhibited before the Hon'ble Tribunal along with the investigation report, Secondly, our company is not liable to pay compensation on the ground that the driver of the said bus was not having a valid and effective driving license at the time of accident. As per the claim petition Shri Prabir Paul was the driver of the said bus and in this regard the company has investigated and verify the said driving license but it was found that the D/L No. 109042/MTH/Thoubal, Manupur, the said driving license No was issued in the name of Mr. Maheshi Ram. As per the claim petition Shri Prabir Paul was the driver of the said bus and in this regard the company has investigated and verify the said driving license but it was found that the D/L No. 109042/MTH/Thoubal, Manupur, the said driving license No was issued in the name of Mr. Maheshi Ram. Therefore Mr. Pribir Paul was driving the said vehicle in a public place with fake driving license which is violating the M.V. Act and also the driver clause of the policy conditions which was mentioned in the policy. XXX Claimant: It is correct to say that I have not filed any authorization letter from the company to represent them in the present case. It is correct to say that I know the Regd. Number of the vehicle involved in the accident. It is correct to say that vehicle B/R No. AS-09/A-0721(Bus) met with an accident on 23.1.13. It is correct to say that as per our investigation report it is revealed that the accident is genuine and it occurred due to rash and negligent driving of the bus. It is correct to say that I am not an eye witness of the accident nor I have seen the sitting on the roof of the bus. It is correct to say that I have not exhibited the policy terms and condition before this Tribunal nor I have exhibited any documents to substantiate my statements. It is correct to say that letter dt. 26.10.2013 is not my documents not I am the author of it. It is correct to say that our opinion does not mainly based on the investigation report submitted by the company investigator. It is correct to say that we cannot come to a conclusion that the letter dt. 26.10.2013 is of authenticate documents unless the author documents is examined, however we obtained this documents through an RTI application. I deny the suggestion that I have stated false statement before this Tribunal. Sd/-" 2. The above documents clearly shows that the victim was not a pedestrian but was travelling on the rooftop of the ill-fated bus where he sustained injuries. The ejhar filed by the brother of the deceased clearly reflects that the victim was travelling on the roof of the bus for non-availability of seat. Sd/-" 2. The above documents clearly shows that the victim was not a pedestrian but was travelling on the rooftop of the ill-fated bus where he sustained injuries. The ejhar filed by the brother of the deceased clearly reflects that the victim was travelling on the roof of the bus for non-availability of seat. The GDE entry which was translated at Annexure-IV contained at Page 210 also clearly reflects that the victim fell down from the roof of the bus by dashing against a bamboo of forest gate. These two primary evidences is confirmed by deposition of DW-1 and DW-2 who are investigators and administrative officers of the United India Insurance Company Ltd. Therefore, there is clear and unrefutable evidence that there was negligence on the part of the victim himself. The principles of contributory negligence would be applicable to the victim. Section 123 of the MV Act also forbids travelling on the running board or on the bonnet of a motor vehicle. There is, on the other hand, the duty thrust upon the driver and the conductor to be vigilant on the travel in footboard, bonnet or roof as provided under Section 123 of the MV Act. The provisions of this Act equally apply to the passenger and the bus driver and the conductor. Hence, all the three contributed to the accident in question and thus, negligence has to be apportioned while considering the award since this cannot be treated as a breach of contract but may be termed as negligence of the parties. The principle is accepted and even pronounced by the judgment of various Courts which has to be applied in the instant case as well. With respect to the contention of possession of fake driving license by the driver of the offending vehicle and also the responsibility of the owner of the vehicle, the matter has been set at rest by the Apex Court in the case of: United India Insurance Company Ltd. Vs. Lehru and Others Appeal (civil) 1959 of 2003 It has been held that the insurance company cannot be permitted to avoid liability on the ground that the person driving the vehicle at the time of accident was not duly licensed. Lehru and Others Appeal (civil) 1959 of 2003 It has been held that the insurance company cannot be permitted to avoid liability on the ground that the person driving the vehicle at the time of accident was not duly licensed. The duty of the vehicle owner could not be extended to examining before the Transport Authority whether the concerned driver he is supposed to hire is having a valid license or a fake license. The owner of the vehicle is only expected to examine whether the driver he is to hire is in possession of a license and whether he is efficient in driving the vehicle. If this is satisfied, no breach of contract could be ascribed to the vehicle owner. In the event, if it is found by the owner of the vehicle that the driver was in possession of a fake license or the driver was not compatible and inefficient and still allowed the driver to continue driving the vehicle and accident occurs, the owner of the vehicle would be held liable. However, in the instant case, there is no such allegations made out by the appellants. No doubt, there is the allegation that the driving license possessed by the offending driver was not in his name as issued by the DTO, Thoubal, but it was issued in the name of one Shri Hashiram, which is noted. The matter would be conscripted to criminal liability and would take its own course on the criminal side. However when no deficiency in his driving is established, and the owner is unaware of the fake driving license it will not be a civil wrong and attract tortious liability. It is answered accordingly. 3. On the 3rd issue of the allegation that the income certificate is not proved as the author of the income certificate has not been examined, this Court has verified the evidences and it is seen that the author of the certificate has not been examined. Reliance is placed on the case of: Neeta Vs. Divisional Manager MSRTC, 2015 (3) SCC 590 wherein the Apex Court has held that where no proof of income is established, the Minimum Wage Act should apply and this Court, accordingly decide so. 4. The other grounds of challenge are not very essential to dispose of the present appeal. Reliance is placed on the case of: Neeta Vs. Divisional Manager MSRTC, 2015 (3) SCC 590 wherein the Apex Court has held that where no proof of income is established, the Minimum Wage Act should apply and this Court, accordingly decide so. 4. The other grounds of challenge are not very essential to dispose of the present appeal. From the above discussions I am of the view that the negligence caused in the present accident is to be apportioned between the insurer and the victim. This Court place reliance on this matter wherein similar facts were discussed and disposed of by the Court of Madhya Pradesh High Court; although it is not a ruling which is to be followed but it is persuasive. The relevant case:- Manager, the Oriental Insurance Company Ltd. Vs. Mantola and Others AIR 1980 Cal 165 The paragraphs useful for our discussion are reproduced herein below: "This is the reason why Courts in India have applied the principles underlying the Law Reform (Contributory Negligence) Act, 1945, in holding that contributory negligence would only mitigate the liability to the extent of negligence that can be attributed but would not debar the claim altogether. Reference may be made to State v. Lal Man Badriprasad AIR 1954 Vindh Pra 17, Sindhu v. Gour Krishna, Yoginder Paul Chowdhury v. Durga Das Punj 1972 Acc CJ 483 (Delhi) and Punjab State v. Jaswant Kaur 1973 Ace CJ 213 (Punj.). Judicial decisions on the point are uniform and our attention had not been drawn to any decision taking the contrary view. Hence, we must hold that the Tribunal was right in apportioning the liability on its finding as to the deceased being guilty of contributory negligence. In view of the aforesaid pronouncement of law it is quite clear that two views have been stated, viz., (i) if a person is allowed to travel on the roof top that would tantamount to rash and negligent act on the part of the owner and the driver and hence, the owner is vicariously liable and, therefore, the Insurance Company should indemnify the owner; (ii) that in view of the statutory provision a passenger is not supposed to sit on the roof top, but if he is allowed to sit on the roof top he also contributes to the occurrence of the accident. In our considered opinion, the second view that a person travels on the roof top contributes to the accident is correct and we are in respectful agreement with the same keeping in view the statutory provision engrafted under Section 123 of the Motor Vehicles Act. Once we have accepted that such a passenger would be liable for contributory negligence we are disposed to state that such contributory negligence should be determined at 25%. Thus, the amount of compensation granted by the Tribunal would be reduced by 25%. Thus, the amount of compensation would stand reduced to Rs. 1,02,354.75 P. which is rounded of up to Rs. 1,02,360/-. Consequently, the appeal is allowed in part. There shall be no order as to costs." Therefore, this Court is also of the view that the contributory negligence would be apportioned as 25:75 after assessing the income which would be as per the Minimum Wages Act applicable in the State. 5. In the light of the above findings computation on the loss of income will now be considered as under: 1. Monthly income as per Minimum Wages Act applicable in the State for unskilled labour is Rs. 5,280/- or Rs. 176/-per day Therefore, Rs. 5,280/-x12x18 11,40,480/- 2. Less 1/3 rd =11,40,480/- -2,85,120/- 8,55,360/- 3. Less 25% Contributory negligence 8,55,360/- 2,13,840/- 6,41,520/- 4. Medical Expenses 1,88,884/- 5. Loss of Consortium 10,000/- 6. Funeral Expenses Rs. 10,000/- Rs.8,50,404/- Less interim Rs.80,000/- Rs. 8,00,404/- The claimant shall be entitled to an amount of Rs. 8,00,404/- (Rupees eight lakhs four hundred and four) only. 6. The insurer, the United Insurance Company Ltd. is directed to deposit Rs. 8,00,404/- (Rupees eight lakhs four hundred and four) only within a period of one month from the date of this order before the MACT, Dimapur for disbursement to the claimant. 9% interest per annum from the date of the filing of the claim petition will be chargeable till realization of the awarded amount. 7. Statutory deposit shall be repaid to the appellant. 8. Appeal petition stands partially allowed and disposed.