JUDGMENT 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. 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 tried to cross the road in order to board the Tata Sumo. So the injured too contributed negligence for such accident. It is argued by Mr. Guite that the injured was not hit by the truck by the front. She bumped herself on her head against the rear of the truck. So the injured too contributed negligence for such accident. It is argued by Mr. Guite that the injured was not hit by the truck by the front. She bumped herself on her head against the rear of the truck. Therefore, the driver who drove the accident vehicle had taken precaution to avoid accident. But evidence remains that the driver while driving the vehicle drove the vehicle in a rash and negligent manner and did not even blow its horn to alert the pedestrian or the other vehicles plying on the road. Therefore, evidence also speaks of contribution of negligence on the part of the offending vehicle. According to Mr. Guite contribution from both the sides required to be calculated taking into consideration the facts and evidence on record. Mr. Guite, referring to police report Exhibit C/7 also submits that the police having inquired about the accident did not find any fault on the part of the driver of the offending vehicle and accordingly no case was registered against him for rash and negligent driving. In Exhibit-C/7 the accident is branded as purely accidental. Facts and evidence do not support that the accident was purely accidental. Therefore, the negligence is also required to be shared by the injured herself since she avoided to take precaution while crossing a busy road. 8. Mr. S. Pradhan, Learned Counsel for the respondent No. 1, however, has not denied that there was no contributory negligence on the part of the injured herself. She contributed to some percentage towards the accident. Had she been vigilant in crossing the busy road and taken precaution such accident would not have occurred resulting injury (80% disability) to injured Lalchhandami. Mr. Pradhan, therefore, argues that the percentage of negligence that contributed by the injured herself should be 25% and accordingly award can be calculated. Mr. Guite while supporting his contention of contributory negligence relied in the following decisions: (1) Koosappa Poojari v. K. Sadabba and Ors. (2004) ACJ 2120; (2) Shrimanti and Ors. v. Krishna Deva Madiwal and Ors. (2005) ACJ 350; (3) M.G.R. Transport Corporation Ltd. v. K. Senthanmizh Selvi and Anr. (2007) ACJ 2664. 9. In the case between Koosappa Poojari v. K. Sadabba and Ors. (supra) in paragraph 7 and 8 the hon'ble High Court of Karnataka held as under: 7. (2004) ACJ 2120; (2) Shrimanti and Ors. v. Krishna Deva Madiwal and Ors. (2005) ACJ 350; (3) M.G.R. Transport Corporation Ltd. v. K. Senthanmizh Selvi and Anr. (2007) ACJ 2664. 9. In the case between Koosappa Poojari v. K. Sadabba and Ors. (supra) in paragraph 7 and 8 the hon'ble High Court of Karnataka held as under: 7. Charles worth and Percy in their Book on Negligence, 7th Edn., have stated, thus: A road user must not presume to use the highway on the basis that the other users, whether drivers or pedestrians, will behave with reasonable care, which common experience has shown to be a false assumption. In this regard Lord Uthwatt added: 'a driver is not, of course, bound to anticipate folly in all its forms, but he is not, in my opinion, entitled to put out of consideration the teachings of experience as to the form these follies commonly take'. Pollock C.B. Said: 'It is the duty of persons, who are driving over a crossing for foot passengers which is at the entrance of a street, to drive slowly, cautiously and carefully; but it is also the duty of a foot passenger to use due care and caution in going upon a crossing at the entrance of a street, so as not to get among the carriages, and thus receive injury. It is the duty of the driver of a vehicle to keep a good look out. He must look out for other traffic which may be expected to be on the road in front of him, behind him or along side of him especially at cross-roads, junctions and bends. The ease on hand would clearly indicate that the claimant had crossed a better part of the road and was standing on the median line to cross the remaining half. The fact that he had crossed only a small extent of the road to an extent of 21/2 ft. the offending vehicle in question came and hit him. The aftermath of the accident was that it had proceeded for a further distance of 20 ft. and had climbed the median line. This is another clear indication that the driver indeed was rash and negligent. The only question hence is what is the care taken by the driver to avoid the said accident. The aftermath of the accident was that it had proceeded for a further distance of 20 ft. and had climbed the median line. This is another clear indication that the driver indeed was rash and negligent. The only question hence is what is the care taken by the driver to avoid the said accident. However, the fact that a motorist's failure to see a pedestrian crossing all of a sudden cannot be lost sight of. It is not disputed before me that on the western side-is the New Mangalore Port Trust and on the eastern side of the road is the Mangalore Chemicals and Fertilisers which would essentially mean that it is a busy road. All the more so, driver of the vehicle ought to have been more prudent and circumspect while driving. But it cannot be lost sight of the fact that a duty is also cast on a pedestrian and he should use due care and caution in going upon and crossing the road and it is his duty to look out for the oncoming traffic. Insofar as the another duty cast on the pedestrian is concerned, it is needless to say that he has to give the driver a plenty of time to see him and slow down and start before he attempts to cross or put one foot on the crossing. It is not always necessary that the vehicular traffic will have to stop for a pedestrian to cross, for the vehicle needs more time to stop in view of the speed a motor generates. Moreover, whenever a pedestrian is crossing over a roadway at any place other than which is meant for pedestrian crossing, they cannot claim any specific precedence and the responsibility for causing the accident more often than not will have to be shared by the pedestrian along with the vehicle driver. In view of this, it cannot be said that it was only the driver of the vehicle in question who was solely responsible for the accident. It has also to be noted that there is no evidence forthcoming to show that it was the pedestrian crossing or whether there were any Zebra crossing. In view of the fact that claimant had crossed the road where he was not supposed to cross certain degree of contributory negligence will have to be attributed him. 8. It has also to be noted that there is no evidence forthcoming to show that it was the pedestrian crossing or whether there were any Zebra crossing. In view of the fact that claimant had crossed the road where he was not supposed to cross certain degree of contributory negligence will have to be attributed him. 8. The hon'ble Supreme Court in the case of Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak 2002 ACJ 1720 (SC), has observed at Para 9 of the Judgment as follows: The following observation of the High Court of Australia in Astley v. Austrust Ltd. (1999) 73 ALJR 403, is worthy of quoting: A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiffs share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property.... The duty owed by the defendant, although relevant, is only one of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property. The same ratio is applied in the case between Shrimanti and Ors. v. Krishna Deva Madiwal and Ors. (supra) and M.G.R. Transport Corporation Ltd. v. K. Senthanmizh Selvi and Anr. (supra) regarding contributory negligence. 10. There is always a duty cast upon a pedestrian while crossing a road or going through the road. The same ratio is applied in the case between Shrimanti and Ors. v. Krishna Deva Madiwal and Ors. (supra) and M.G.R. Transport Corporation Ltd. v. K. Senthanmizh Selvi and Anr. (supra) regarding contributory negligence. 10. There is always a duty cast upon a pedestrian while crossing a road or going through the road. It is always not expected that a vehicular traffic will have to stop for a pedestrian to cross the road, for the vehicle needs more time to stop in view of the speed it generates. In the same way the drivers plying vehicles on the roads should always be vigilant and take precaution to avoid accident. If an accident occurs on account of negligence of the driver of the vehicle and the pedestrian, the ratio of negligence is to be considered. Here in our present case the injured lady tried to cross the road by taking a heavy load on her back keeping her eye sight down on account of such load. She was trying to cross the road for embarking a Tata Sumo for her destination but suddenly her head bumped against the rear side of the offending truck driven by the driver, which resulted her falling down on the ground with severe injuries on her head, face and other parts of the body. She was sent to hospital where treatment was offered. She received 80% of permanent disability on account of the injuries received, more particularly on her head. Therefore, the ratio of negligence in my considered view should be at 70:30 and with this ratio the award can be worked out. 11. In respect of the second issue raised by Mr. Guite regarding monthly income of the injured, it is argued by him that there is no acceptable evidence on record that her monthly income could be calculated at Rs. 5,000. Referring to the evidence of PW4, namely, Laltlanthangi, it is submitted by Mr. Guite, Learned Counsel for the appellant that the income of the injured Lalchhandami can never be taken at Rs. 5,000 per month since income of the injured Lalchhandami fluctuates from Rs. 5000 to 3000 per month. Therefore, according to him it would not be safe to hold that the monthly income of the injured Lalchhandami at Rs. 5000. Guite, Learned Counsel for the appellant that the income of the injured Lalchhandami can never be taken at Rs. 5,000 per month since income of the injured Lalchhandami fluctuates from Rs. 5000 to 3000 per month. Therefore, according to him it would not be safe to hold that the monthly income of the injured Lalchhandami at Rs. 5000. The income certificate, Exhibit-C-13 issued by the President, Village Council, Tuirial Airfield is beyond the scope of consideration/acceptance in view of the ratio laid down by this Court in the case between New India Assurance Co. Ltd. v. Kawllian Thanga and Anr. 2007 (3) GLT 444. This Court refused to act on the certificate of income issued by VCP in view of absence of supportive evidence that a Village Council President is competent authority to issue income certificate. Applying the same ratio this Court also refused to accept the income certificate, Exhibit-C-13 issued by the President, Village Council, Tuirial Airfield. Since according to PW4 the income of the injured Lalchhandami fluctuates in between Rs. 5,000 to 3,000 per month, in order to maintain equilibrium/it would be perhaps appropriate for this Court to calculate the income of the injured Lalchhandami at Rs. 4,000 per month. With the aid of this monthly income the award can be worked out together with the percentage of contributory negligence. 12. The Learned Counsel representing the respective party while arguing before this Court submits that the award may be calculated by applying appropriate percentage of contributory negligence and monthly income. 13. I have, after marshalling the evidence on record come to conclusion in the forgoing paragraph that the percentage of contributory negligence should rest at 70:30 and the monthly income at Rs. 4,000. Taking the ratio of the contributory negligence and the monthly income, the award is worked out as under:- 1. Pecuniary Damages : (a) Loss of Income 4000 x 12 x 15 x 80 100 = Rs. 5,76,000.00 70% of the Loss of - Income i.e., Rs. 5.76,000.00 = Rs. 4,03,200.00 (b) Medical Expenditure supported by Cash Memos = Rs. 2,547.00 2. Special Damages: (a) Physical pain and mental shock at Time of the accident. = Rs. 10,000.00 (b) Pain suffering and loss of amenities of life. = Rs. 10,000.00 (c) Inconvenience, hardship, discomfort Disappointment, frustration and Mental stress in life. = Rs. 10,000.00 (d) Expenditure for attendant = Rs. 20,000.00 Total: Rs. 2,547.00 2. Special Damages: (a) Physical pain and mental shock at Time of the accident. = Rs. 10,000.00 (b) Pain suffering and loss of amenities of life. = Rs. 10,000.00 (c) Inconvenience, hardship, discomfort Disappointment, frustration and Mental stress in life. = Rs. 10,000.00 (d) Expenditure for attendant = Rs. 20,000.00 Total: Rs. 4.55.747.00 It is made clear that this Court is not inclined to interfere with in regard to the rest of the awards awarded by the Tribunal. 14. The appeal is partly allowed. The appellant shall pay the award calculated as above with interest at the rate of 9% per annum from the date of application until realization. MAC Appeal stands disposed of.