H. Baruah, J.

1. Heard Mr. M. Guite, Learned Counsel for the appellant as well as Mr. S. Pradhan, Learned Counsel for the respondent No. 1.

2. This instant appeal is preferred against the judgment and award dated 19.9.2008 passed by the learned Member, MACT, Aizawl in MAC Case No. 30 of 2006 whereby and whereunder an award amounting to Rs. 7,72,547.00 was awarded with simple interest at the rate of 9% per annum from the date of filing of the claim petition till realization from the Opposite Party No. 2, the appellant herein.

3. Being aggrieved thereby the appellant, New India Assurance Co. Ltd., Aizawl Branch has challenged the legality and correctness of the judgment and award impugned.

4. Brief facts are as follows:

In the morning of 30.3.2005 at about 9 am at Tuirial Airfield approach road, Mizoram one Lalchhandami met with an accident and suffered head injury in particular which caused Dementia with Psychosis. She suffered 80% disability due to the accident. It is alleged that one 407 Truck bearing Registration No. MZ-1-C/4052 belonging to the Opposite Party No. 1, respondent No. 2 herein caused the accident. The accident vehicle was validly insured with the appellant, New India Assurance Company Ltd. and the driver was holding a valid driving license at the time of accident. It is further claimed that injured Lalchhandami-respondent No. 1 herein was a business woman by profession doing the selling of vegetables, fruits, clothes etc. having a monthly income of Rs. 5,000 approximately. On account of her injury so sustained injured Lalchhandami at present is unable to perform, any kind of physical work and she totally lost her mental balance. On account of receipt of injury by respondent No. 1 due to vehicular accident on the date, one Smt. Lalhmunsiami, a relation of injured Lalchhandami filed a claim petition under Section 166 of the M.V. Act, 1988 claiming compensation for permanent disablement suffered by said Lalchhandami.

5. The learned Member, MACT inquired the matter, during inquiry witnesses from either party were examined and documents proved. The Tribunal after careful scrutiny of the evidence on record both oral and documentary, the facts and circumstances of the case was pleased to award compensation to the claimant as stated above.

6. This judgment and award has been resisted by the appellant mainly on two grounds: (1) that there was contributory negligence on the part of the injured Lalchhandami. This aspect of contributory negligence, which is evident from the evidence on record and the fact was not taken into consideration by the Tribunal and committed error and illegality holding the driver of the vehicle responsible to the extent of 100% and (2) that the learned tribunal failed to assess the income of the injured Lalchhandami in its proper perspective with reference to the evidence on record.

7. Mr. M. Guite, Learned Counsel for the appellant in the above two issues put emphasis on the evidence available on record more particularly "in the context of issue No. 1", evidence of PW3 who claimed to be eye witness to the accident. From the scrutiny of the evidence of PW3 it appears that injured Lalchhandami carried a basket on her back loaded with vegetables and tried to cross the road to board a Tata Sumo. She was coming putting her face down on account of heavy load she carried and she bumped her head against the rear portion of the truck resulting head injury and other injuries on her body. In this context it is argued by Mr. Guite that every pedestrian while crossing road has to take precaution in order to avoid accident. In the same way the driver(s) plying vehicle(s) on the road also ought to have taken precaution to avoid accident. It was known to injured Lalchhandami that by the road in every moment vehicle may come. So in order to avoid accident, she while crossing the road with a basket on her back loaded with vegetables ought to have taken precaution but without taking such precaution she merrily tri