( 1 ) ALLEGING that he suffered certain injuries in a motor accident, the respondent applied for compensation under sections 163-A and 166 of the Motor Vehicles Act, 1988 ('the Act' for short), alleging negligence on the driver, though none was impleaded in that capacity.

( 2 ) THE owner did not contest.

( 3 ) THE appellant insurer disputed the liability and also challenged the maintainability of the composite application, filed invoking sections 163-A and 166. Faced with such objections, the claimant applied for deletion of section 166 from the application.

( 4 ) THE documentary evidence was, thereafter, taken on the record. No oral evidence was adduced.

( 5 ) TRIBUNAL did not find that the claimant suffered any permanent disablement. Nor was on record, any certificate, by the competent, to that effect. Bereft of that, the application was unsustainable under section 163-A. The claimant pleaded his monthly income as Rs. 5,000, that is, an annual income of Rs. 60,000, well above the bench mark of Rs. 40,000, to sustain the claim under section 163-A.

( 6 ) YET, the Tribunal passed the impugned award for compensation under different counts, including pain and suffering.

( 7 ) THE Supreme Court has laid down in deepal Girishbhai Soni v. United India insurance Co. Ltd. , 2004 ACJ 934 (SC), that a claimant cannot pursue his remedies simultaneously under sections 163-A and 166, such remedies being independent of each other and section 163-A, being a social security provision providing for a distinct scheme, only those with annual income up to Rs. 40,000 can take the benefit thereof, leaving all other claims to be determined in terms of Chapter XII of the act, in which section 166 is included.

( 8 ) IN this case, there is one more aspect which requires attention. Claimant pleaded that his monthly income is Rs. 5,000. The tribunal reduced it to Rs. 2,000 and thus proceeded to make the award. It was held in Deepal Girishbhai Soni's case, 2004 acj 934 (SC), that the annual income of rs. 40,000 cannot be treated as a cap as found in Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala, 2001 ACJ 827 (SC) and that the proceedings under section 163-A are confined to be invoked by persons whose annual income is only up to Rs. 40,000. Therefore, a person who alleges that his annual income is above rs. 40,000 cannot invoke section 163-A, prosecute proceedings and thereafter, get the benefit of the finding of the Tribunal that his proved income is only below the bench mark of Rs. 40,000, the statutory limit for invoking section 163-A. So much so, the Tribunal erred in adjudicating the application under section 163-A as long as it continued with the pleading that the monthly income of claimant is Rs. 5,000.

( 9 ) IN the aforesaid situation, the learned counsel for the claimant attempted to canvass that though the Tribunal deleted section 166 at the request of the claimant and treated the claim under section 163-A, the award is, in effect, one under section 166, going by the nature of the counts on which compensation has been awarded.

( 10 ) PER contra, learned counsel appearing for appellant insurer argued that the parties went to trial on the definite premise that the application is under section 163-A and if the application was to be one under section 166, the insurer ought to have been afforded opportunity to meet it on its merit. He submitted that the facts of the case appear to disclose that claimant attempted to accuse a third person as the driver of the vehicle and later on, when faced with the written statement of the insurer, turned round, virtually admitting his guilt as the driver and thereby wanting to prosecute his claim under the canopy of section 163-A and that the claimant is disentitled to turn topsy-turvy in an attempt to sustain the award, which is passed in excess of jurisdiction under section 163-A, invoked by the claimant. He further urged that even if a composite application is fil