RAMESH MADHAV BAPAT, J.

( 1 ) THIS is an appeal by the United India Insurance Company Limited. The appellant herein was aggrieved by the award passed in M. V. O. P. No. 97 of 1998 by the Motor Accidents Claims Tribunal-cum-V Additional District Judge, Tirupathi awarding compensation of Rs. 16,51,400. 00. The claimants-respondents herein filed a petition under Section 163-A of the Motor Vehicles Act claiming compensation of Rs. 22 lakhs on the death of M. Muni Krishna Reddy, husband of first claimant and father of claimants 2 to 5 and son of 6th claimant, who died in the motor accident occurred on 21-1-1998 at about 9-00 p. m. , near Rass building at M. R. Palle to AIR By-pass road. On evidence the Tribunal granted compensation of Rs. 16,51,400. 00.

( 2 ) THE main contention raised by the appellant herein that the Tribunal ought to have appreciated that under Section 163-A of the Motor Vehicles Act, the maximum earning capacity is to be taken as Rs. 40,000. 00for computing compensation and no more amount can be taken by way of earning capacity under Second Schedule. It was further contended by the learned Counsel for the appellant herein that the earning capacity in the present case was held to be Rs. 1,46,400 and the Tribunal applied multiplier from the Second Schedule of the Motor Vehicles Act, which is erroneous.

( 3 ) ON raising such contention by the learned Counsel for the appellant, the learned Counsel for the claimants-respondents herein filed CMP No. 1251 of 2002 in CMA No. 2981 of 2001 under Order 6, Rule 17 CPC praying to permit the claimants to make an amendment of their claim from 163-A to 166 of the Motor Vehicles Act. While arguing the above CMP. , the learned Counsel for the claimants-respondents herein submitted at the Bar that it was the mistake of the Counsel, who represented the claimants in the Tribunal to apply under Section 163-A of the Motor Vehicles Act. But the evidence was led as if the petition is filed under Section 166 of the Motor Vehicles Act. We accept the aforesaid proposal of the learned Counsel for the claimants-respondents herein and we allow the claimants-respondents herein to amend the claim from 163-A to 166 of the Motor Vehicles Act.

( 4 ) THE learned Counsel for the appellant herein submitted at the Bar that there is no much dispute as far as the income of the deceased is concerned, which is computed as Rs. 13,200. 00 per month and the annual contribution comes to Rs. 1,58,400. 00.

( 5 ) NOW the question arises as to whether the Second Schedule is applicable while applying the multiplier to assess the compensation?

( 6 ) THE learned Counsel Mr. N. Subba Rao appearing on behalf of the respondents herein relied upon a ruling reported in Oriental Insurance Company Limited v. Hansraj Bhai v. Kondala and Ors. , (2001) 5 SCC 175.

( 7 ) WE have gone through the said ruling and we are of the considered view that the Apex Court held that the Second Schedule is not properly drafted and therefore suggestion was made by the Apex Court to the Central Government to take necessary action as early as possible as regards the error in the Second Schedule and the need for amendment in view of the rise in the cost of living. In other words, it means that the Apex Court never said that if the petition is filed under Section 166 of the Motor Vehicles Act, the multiplier in Second Schedule is to be applied.

( 8 ) FROM the same ruling, some of the paragraphs were read out by the learned Counsel for the respondents herein. They are extracted hereunder:"9. The Law Commission of India in its 119th Report in the Introductory Chapter observed (para 1. 6) that previously there was recommendation for inserting provision in the Motor Vehicles Act to extend protection to victims of hit-and-run accidents where the person liable to pay such compensation or his whereabouts cannot be ascertained after reasonable effort by providing that in such an event, the person entitled to such compensation shall be entitled to receiv

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