Ramakrishna Pillai, J.

1. The Insurance Company has come up in appeal.

2. On 29.3.1998 while the first respondent was riding a two wheeler he met with an accident in his attempt to overtake a bus proceeding ahead. He preferred a claim for Rs.1,70,000/-, against which the Tribunal awarded a sum of Rs.87,000/- as compensation.

3. The appellant Insurance Company, while admitting the policy contended that the accident was the result of the negligence on the part of the first respondent. To substantiate that, they relied on Ext.B1 which is the final report submitted by the Police before the Judicial First Class Magistrate Court concerned requesting the court to refer the case as ‘mistake of fact’. The claim was preferred under Section 166 of the Motor Vehicles Act (hereinafter referred to as the ‘Act’ for short). After trial, the Tribunal found that the accident was the direct result of negligence of the first respondent. However, the learned Tribunal awarded compensation in terms of S.163A of the Act apportioning the negligence in the ratio 1:1 between the appellant and the driver of the bus and accordingly directed the appellant Insurance Company to pay 50% of the award amount. This finding is under challenge.

4. We have heard the learned counsel for the appellant Insurance Company and the learned counsel for the first respondent. We have also perused the impugned award.

5. The suo motu conversion of the claim by the Tribunal to one under Section 163A of the Act after trial is seriously challenged by the appellant. The learned counsel for the first respondent, per contra, justified the conversion in the light of the decision of the Calcutta High Court in Sharmila Singh v. Rabin Ghosh (2010 ACJ 1428), where it was observed that if the claimant fails to prove the negligence of the driver of the offending vehicle in a proceeding under Section 166 of the Act, the Tribunal can convert the same to one under Section 163A of the Act provided the claimant avers that the income of the victim is below Rs.40,000/- per annum. As an averment by the claimant regarding the annual income limit was insisted as a condition precedent for converting the claim to one under S.163A, it can be discerned that what was intended in Sharmila Singh’s case was not a suo motu conversion.

6. Before going into the merits of the rival submissions made at the Bar, it is useful to examine the relevant provisions of the Act. Section 163A of the Act reads as follows:

163A. Special provisions as to payment of compensation on structured formula basis. –

(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liabe to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.

Explanation. – For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923).

(2) In any claim for compensation under sub section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.

7. Section 166 of the Act is as under:

166. Application for compensation. – (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made –

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all