JUDGMENT

All these three appeals arise out of one and the same order passed by the MACT, Belgaum and hence, they have been disposed of by this common order.

2. M.F.A. No. 8622 of 2003 is filed by M/s. United India Insurance Company Limited and the main ground urged in this appeal is that the claimants had filed petition under Section 166 of the Motor Vehicles Act, 1988, and later on got it converted into Section 163-A of the Act and the Tribunal though recorded a positive finding that the income of the deceased was Rs. 1,20,000/- per annum, it confined it to Rs. 40,000/- p.a. so as to bring the case within the ambit of Section 163-A. This procedure followed by the Tribunal is contrary to the law laid down by the Apex Court and therefore, the claim petition, insofar as M.V.C. No. 785 of 1999 is concerned, ought to have been dismissed by the Tribunal and the appeal filed by the Insurance Company be allowed on this ground alone. The further ground urged in this appeal by the Insurance Company is that the deceased was at fault and the accident took place on account of rash and negligent driving of the jeep by the driver concerned and as such, the Insurance Company cannot be made liable for the fault of the driver of the vehicle and the driver was also not a workman in the vehicle in question and therefore, the question of saddling the Insurance

Company will not arise.

3. M.F.A. Nos. 816 and 817 of 2004 are preferred by the National Insurance Company-the insurer of the lorry involved in the accident, assaili~the finding of the Tribunal with regard to apportionment of negligence in respect of drivers as well as the quantum of compensation.

4. We have heard the learned Counsel for the appellants as well as the learned Counsel for the claimants.

5. Learned Counsel Sri B.C. Seetharama Rao in M.F.A. No. 8622 of 2003 drew our attention to the decision of the Apex Court in Deepal Girishbhai Bani and Others u United Insurance Company Limited, Baroda\ to contend that when the income of the deceased was more than Rs. 40,000/- p.a. as per the finding of the Tribunal, the 'Tribunal could not have allowed the petition to be converted under Section 163-A of the Act and therefore, the claim petition ought to have been dismissed on the ground of liability. The decision of the Apex Court in A. Vijaya and Others u Vegurla Rajaiah and Others2, was also referred to in this connection.

6. So far as M.F.A. No. 8622 of 2003 is concerned, it is a settled position in law that the petition under Section 163-A is maintainable only where the income was Rs. 40,000/- p.a. and below and it is not permissible to contend that the petition can be maintainable under Section 163-A even though the income is more than Rs. 40,000/- p.a. by limiting the income by Rs. 40,000/- so as to bring it within Section 163-A of the Act. The Apex Court has, in Deepal Girishbhai's case, observed thus:

"66. We may notice that Section 167 of the Act provides that where death of, or bodily injury to, any person gives rise to claim of compensation under the Act and also under the Workmen's Compensation Act, 1923, he cannot claim compensation under both the Acts. The Motor Vehicles Act contains different expressions as, for example, 'under the provisions of the Act', 'provisions of this Act', 'under any other provisions of this Act' or 'any other law or otherwise'. In Section 163-A, the expression "notwithstanding anything contained in this Act or in any other law for the time being in force" has been used, which goes to show that the Parliament intended to insert a non obstinate clause of wide nature which would mean that the provisions of Section 163-A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163-A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of.

67. We, ther