The present appeal has been preferred against and award dated 16.1.07 passed by the learned Motor Accident Claims Tribunal, Dhemaji in MAC Case No. 30/05 awarding compensation to the respondent No.1 who was the claimant in the aforesaid case.

2. The brief case necessary for disposal of the appeal may be summarised as below :

The respondent No. 1 as claimant filed a claim petition before the learned Member, Motor Accident Claims Tribunal, Dhemaji under Section 166/140 of the M.V. Act claiming compensation for death of her husband Ashlam Ali who was a businessman by profession having income of Rs. 8,800/- per month, who met with an accident on 22.4.05 while he was driving the vehicle No. AR -08/7860 and as result of which, her husband died on the spot.

3. The owner of the vehicle as well as the Insurance Company contested the case by filing written statement. The opposite party No. 1 (respondent No. 2) in the present case in his written statement admitted the ownership of the vehicle and also about the involvement of the vehicle in the said accident and it is stated that the deceased drove the vehicle himself to attend a party. Denying all other allegations it is stated that at the time of accident the vehicle was duly insured with the Oriental Insurance Co. and the deceased also had valid driving licence and he is not liable to pay the compensation.

4. On the other hand, the opposite party No. 2 (present appellant) insurer of the offending vehicle also in the written statement has denied the averments made in the claim petition. It has been contended that the claim petition is not maintainable and the Insurance Company is not liable to pay compensation as there is gross violation of terms and conditions of the insurance policy.

5. After recording the evidence adduced by the complainant and as no evidence was not adduced by the respondent, learned court below passed the award in terms of provision 163 (A) of the Motor Vehicle Act. In para 6 of the judgment the learned Tribunal held as below :-

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In the instant case the claimant could not prove the negligence on the other part of the owner or driver of the vehicle involved in the accident. But it is established that death of the deceased occurred in the motor vehicle accident which took place on 22.4.05 due to the use of vehicle No. AR-08/7860. The claimant is therefore, entitled to get compensation for death of her husband deceased Ashlam Khan under the provision of S. 163-A of the M.V. Act.

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6. The Suo Motu conversion of the proceeding from S. 166 of the M.V. Act to 163-A of the M.V. Act by the learned Tribunal has been challenged by the appellant. It has been assailed that the learned Tribunal is not permitted for such conversion whereas the claim petition was filed under Section 166 of the M.V. Act and admittedly the income of the deceased was more than 40,000/- per annum, being the income of Rs. 8,800/- per month, as the criteria under both the provisions is quite different. In support of his contention, the learned counsel for the appellant has relied upon the following decisions –

1. (2001) 5 SCC 175 (Oriental Insurance Co. Ltd and Ors Vs. Rana Govind Ayar and Ors.),

2. (2006) 1 GLT 282 (D.B.) (New India Assurance Co. Ltd. Vs. Phelishsa Bakai),

3. (2006) ACJ 1180 ( Bina Prasad Sonari Vs. United India Assurance Co. Ltd and Ors),

4. (2007) 4 GLT 730 (Oriental Insurance Co. Ltd. Vs. Thammawii)

5. (2009) 13 SCC 710 (Ningamma and Ors. Vs. United India Insurance Co. Ltd.) and

6. 2014 ACJ 2434 (National Insurance Co. Ltd, Vs. Lamhpuii & Ors.).

7. Per contra, the learned counsel for the respondent has submitted that there is no illegality in the conversion so made by the learned Tribunal and in support of which though he could not rebut the legal submission so made by the learned counsel for the appella