D. C. SRIVASTAVA, J.

( 1 ) THESE two appeals arising out of same accident involving similar questions of law and facts are proposed to be disposed of by common judgment.

( 2 ) THE Motor Accident Claim Tribunal, Nadiad in its interim award dated 3rd May, 1997 awarded compensation of Rs. 5. 38. 068/- together with interest at the rate of 12% per annum from the date of application till the date of payment with proportionate cost. This award was rendered under Sec. 163-A of the Motor vehicles Act. It is this award which is under challenge in these two appeals.

( 3 ) WE have heard Shri R. H. Mehta and Shri K. K. Nair, learned Counsel for the appellants. We also heard the above Advocates representing the appellant on the last date of hearing and we were going to dictate the judgment, when shri B. S. Patel appeared and requested that he wants to show some judgments of the Apex Court to the contrary. Today, we have waited for Shri B. S. Patel right from 11. 00 A. M. to till 4. 10 P. M. and in the meantime, twice or thrice request was made for keeping back these two appeals. We have given sufficient accommodation today in this part-heard matters. Till now even upto 4. 10 p. m. , shri B. S. Patel has not appeared nor there is any information conveyed to this Court as to whether he is busy in some other Court or he has gone. In these circumstances, we are left with no option but to hear the arguments of shri R. H. Mehta and Shri K. K. Nair for the appellants.

( 4 ) THE contention of the learned Counsel for the appellants has been that the award is in excess of the amount indicated in Second Schedule, hence it cannot be sustained. In First Appeal No. 3224 of 1997, monthly income of the deceased was assessed by the Tribunal at Rs. 5836/- and similar amount was assessed in other Appeal namely First Appeal No. 2444 of 1997. The learned counsel for the appellants in both the appeals have drawn our attention to Second schedule for the purpose of Sec. 163-A of the Motor Vehicles Act and contended that while awarding the interim compensation under the Schedule, the Tribunal could not have considered annual income of the deceased beyond Rs. 40,000/- per annum which is the outer limit. Consequently, it was contended that the criteria adopted by the Tribunal in proceeding to assess the compensation at the monthly income of Rs. 5836/- is erroneous and is also contrary to the second Schedule of the Act. We have already accepted this contention of Shri r. H. Mehta and Shri K. K. Nair while deciding First Appeal No. 2445 of 1997 and First Appeal No. 3223 of 1997 on 20th June, 2000. That was also a case where the two appeals arose out of the same accident, and therefore, there is no reasons for us to take different view than that we have already taken. Since no assistance has been rendered on behalf of Shri B. S. Patel by pointing out some authority of the Apex Court to the contrary, we are still affirming the view taken by us in our aforesaid common judgment delivered on 20th June, 2000. We cannot subscribe to the view that a person claiming annual income more than Rs. 40,000/- is not entitled to claim interim compensation at the actual annual income. We had also considered the Division Bench announcement of this Court in Ramdevsingh V. Chudasma v. Hansrajbhai V. Kodala, reported in 1999 (1) GLR 631 and we were unable to agree that the Second Schedule is violative of Art. 14 of the Constitution of India. Needless to say that the vires of the Act or of a Schedule thereunder, cannot be challenged before this division Bench; rather under the Schedule of sitting in the High Court, vires of the Act is to be challenged before the Division Bench specially constituted for the purpose. Prima facie, we found that vires of the Second Schedule of sec. 163-A of the Motor Vehicles Act has not been tested by the Apex Court nor it has been held so far to be ultra vires. Consequently, we are bound to follow the guidelines given in the Second Schedule for the purposes of

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