1. This appeal has been filed by the Insurance Company, which was respondent No.2 before the Member Motor Accident Claims Tribunal-III, Bagalkote (hereinafter referred to as ‘the Tribunal’ for short) in MVC No.818/2007.

2. In this appeal, the appellant-Insurance Company has taken a contention that the claimants have specifically pleaded that the income of the deceased was more than Rs. 40,000/-p.a., as such, the claim petition filed under Section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘M.V. Act’ for short) is not maintainable.

3. During the pendency of the appeal, the respondents who were the claimants in the Tribunal below have filed I.A.No1/2017 under Order 6 Rule 17 read with Section 151 of CPC seeking permission to amend the provision to claim compensation mentioned in the claim petition as under Section 166 of the M.V. Act instead of 163-A of the same Act.

4. Both I.A.No.1/2017 and the main appeal are heard together. Perused the materials placed before the Court including the entire lower Court records. The points that arise for my consideration are:

(i) Whether the application filed under Order 6 Rule 17 read with Section 151 of CPC deserves to be allowed?

(ii) Whether the appeal deserves to be allowed?

5. Even though the appeal has been filed by the respondent-Insurance Company, but it has not disputed the occurrence of the accident on the date, time and place as alleged by the claimants in the claim petition. As such, the said point need not be re-analysed again.

6. The main contention of the appellant in the appeal as well the arguments of the learned counsel for the appellant is that the claim petition being filed under Section 163-A of M.V. Act and that, even according to the claimants, the income of the deceased being more than Rs. 40,000/-p.a., the claim petition is not maintainable. It is their further argument that I.A.No.1/2017 filed by the claimants seeking conversion of the claim petition from the one filed under Section 163-A of the M.V. Act to the one under Section 166 of the same Act is also not permissible.

Further, the argument of the learned counsel for the claimants is that, though the claim petition is filed under Section 163-A of the M.V. Act, in view of the alleged income of the deceased, the petition is not maintainable, but the claimants can be permitted to convert the claim petition as the one filed under Section 166 of M.V. Act. It is their further argument that, when the claimants have given details of the income of the deceased to the counsel, mere misquoting the provision of law by their advocate would not deprive their legal entitlement to claim compensation.

7. Undisputedly, in the claim petition, the income of the deceased is shown as more than Rs. 40,000/-p.a. The claimants have stated that the deceased had a monthly income of Rs. 8,000/-, however, the Tribunal below in its judgment had taken the income of the deceased at Rs. 4,500/-p.m. Thus, it is the clear case where the claimants have not only pleaded that the income of the deceased was more than Rs. 40,000/-p.a., but the Tribunal below also gave its finding to the same effect.

8. A reading of Section 163-A along with II Schedule also make it very clear that, it is only those cases where the income of the injured/victim would be less than Rs. 40,000/-p.a. can maintain a claim petition under Section 163-A of the M.V. Act. This makes it very clear that a claim petition under Section 163-A of M.V. Act is not maintainable where the income of the injured/victim is/was more than Rs. 40,000/-p.a. However, to overcome this, the claimants, who are respondents, have filed I.A.No.1/2017 under Order 6 Rule 17 read with Section 151 of CPC seeking permission to amend the provision of the claim petition from Section 163-A of M.V. Act to Section 166 of the same Act. In the affidavit accompanying the application, the applicants/claimants have stated that they have claimed yearly income of the deceased at more than Rs. 40,000