JUDGMENT :

Sachin Shankar Magadum, J.

The top noted appeal is directed against the impugned judgment and award dated 15.11.2016 passed by the III Additional Senior Civil Judge and MACT, Bengaluru, in MVC.Nos.6502/2010 in dismissing the claim petition filed by the claimants seeking compensation for the death of one Chandrashekar.

2. For the sake of convenience, the parties are referred to as per their rank before the Tribunal.

3. The brief facts of the case are as under:

The claimants in MVC.No.6502/2010 filed a claim petition contending that on 16.06.2008 their son Chandrashekar along with Kumar and other inmates were proceeding in a Maruthi Van bearing Regn.No.KA-05-MD-3621 from Kanipakam to Thimmasanapalli village at Vellore District to attend a marriage function. At about 1.00 a.m., when the vehicle reached near Kumar's land on Thangala-AN Palya Main Road, the deceased Chandrashekhar, who was driving the said vehicle lost control over the vehicle, as a result of which the vehicle met with an accident. Due to the impact, the said Chandrashekar and another inmate namely Parmeshwari died on the spot. The claimants contended that the deceased was hardly aged 27 years and was working as a Site Supervisor at M/s. SLV Builders and Developers and was drawing salary of Rs.2,10,000/-per annum. Hence, they filed the claim petition claiming compensation of Rs.21,40,000/- contending that they were fully dependent on the income of the deceased and due to his unexpected death, they have suffered a lot and lost their bread earner.

The claim petition was strongly resisted by the Insurance Company.

The Tribunal having examined the oral and documentary evidence on record has proceeded to restrict the income of the deceased at Rs.40,000/- and has thereafter, proceeded to dismiss the claim petition on the ground that the deceased Chandrashekar was a tort-feaser and as such the claimants are not entitled for any compensation. Being aggrieved by the same, the claimants have preferred this appeal.

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5. The learned counsel appearing for the claimants contended that the Tribunal has erred in coming to the conclusion that the deceased Chandrashekar was the tortfeaser and the accident in question occurred due to his rash and negligent driving. The Tribunal erred in not taking into consideration the observations made in the decision reported in 2010(2) AWR 512 wherein it is observed that under Section 163-A of MV Act, there is no limit that the income should not exceed more than Rs.40,000/-per year and the schedule is only a guidance to arrive at a multiplier. Further, the Tribunal has erred in not taking into consideration the decision rendered in 2005 ACJ 543 wherein it is observed that the Tribunal has got inherent power to grant compensation by applying current provision of law which is applicable for coming to a conclusion and that in the aforesaid case though the claim was made under Section 166 of M.V. Act, the compensation was granted under Section 163A of M.V. Act. Further, the Tribunal has failed to consider that under Section 163-A, the claimants need not prove the rash and negligent act of the driver and that the evidence of P.W.5 clearly shows that the accident in question occurred beyond the control of the deceased. Therefore, the learned counsel contends that the appeal be allowed setting aside the impugned judgment and award and award compensation as prayed.

6. We have heard the learned counsel appearing for the claimants and counsel appearing for Insurance Company.

7. The Tribunal has proceeded to dismiss the claim petition by holding that the deceased himself was driving the vehicle and as such the legal representatives of the deceased cannot maintain a claim petition under Section 163A of the M.V.Act. The Hon'ble Apex Court in Ningamma and another .vs. United India Insurance Company (2009) 13 SCC 710 has held that absence of any specific claim under Section 166 in pleadings would not be a impediment for the Tribunal to examine the claimant