S. G. Shah, J.

Heard learned advocate Ms. Amrita Ajmera for the petitioners and learned advocate Ms. Sejal K. Mandaviya for respondent No.1. Respondent Nos. 2 and 3 were deleted from the cause title considering that issue raised in the matter is purely on law point, when claim petition under Section 166 of the Motor Vehicle Act by the petitioner has been dismissed by the Tribunal under Motor Vehicles Act, 1956 (for short the Act'), only on the ground that compensation under Section 163A is already awarded to them.

2. It is undisputed fact that petitioners herein are original claimants before the Motor Accident Claims Tribunal of Surendranagar in Motor Accident Claims Petition No.812 of 1998. It is also undisputed fact that one Navinchandra Chimanlal being husband of the petitioner No.1 and father of the petitioner Nos. 2 to 4 had met with a vehicular accident on 29.08.1998 wherein he was crushed by the State Transport Bus No. GJ 1 Z 1072 because of rash and negligent driving in speed by its driver in State Transport Bus Stand at Surendranagar. It is also undisputed fact that said victim of the accident was pedestrian and he was hit by the bus and thereafter when he was fall down on road and even thereafter bus could not stopped but ran over such human being and crushed him. At present practically there is no disputed regarding incident, nature of incident and its result wherein a human being has lost his life because of rash, negligent and care less driving by driver of the State Transport bus i.e. a Public Transport vehicle.

3. Because of such death of the victim, petitioners being legal heirs and dependents of the victim have preferred Motor Accident Claims Petition No.812 of 1998 before the Tribunal. It is quite clear and obvious that though there is no specific reference in claim petition being Exh. 1 before the Tribunal that such application is preferred under Section 166 of the Act, it is certainly under such provision, when claimants have claimed Rs. 20,00,000/- towards compensation on following basic factual details;

(1) Victim was aged 59 years.

(2) He was serving in post office.

(3) He was getting Rs. 3560/- as pension, after retirement from postal services.

(4) After retirement he was working as short duty staff in post office and getting Rs. 1000/- and thereby his monthly earning was Rs. 4500/-.

(5) It is also claimed that his prospective income is Rs. 10,000/- to Rs. 12,000/-.

3.1 Therefore, when Rs. 20,00,000/- are claimed based upon the above factual details and more particularly when on the date of filing such claim petition on 20.10.1998 itself i.e. with the claim petition itself, when in turn application is preferred at Exh. 5 under Section 163A of the Act, it becomes clear that main petition is under 166 of the Act and not under Section 163A of the Act. So far as application at Exh. 5 under Section 163A is concerned, there is categorical disclosure after the cause title that it is an application for interim compensation under Section 163A of the Act. Therefore, also it is quite clear and obvious that both these applications are not in option of each other but main claim is under Section 166 of the Act, whereas there is an application for interim compensation under Section 163A of the Act before the Tribunal as back as in the year 1998.

4. Such application at Exh. 5 for interim compensation has been allowed by an order dated 15.04.2000 wherein it is made clear that amount awarded by such order is to be adjusted in the final order of the compensation payable to the petitioners. Therefore, also it is clear that award by such order below Exh. 5 is not final order. It is also undisputed fact that by such order below Exh. 5 an application for interim compensation, the Tribunal has not considered the prospective income of the deceased at the relevant time and awarded only schedule amount of compensation on other