1. In this appeal, the 2nd respondent insurer in O.P. (MV) No. 204 of 1999 assails the award dated 6.8.2004, whereby the appellant was directed to pay a sum of Rs.4,13,000/-as compensation with interest at the rate of 9% per annum from the date of petition i.e, 6.2.1999 to respondents 1 to 6 who are the claimants before the Tribunal.

2. At 9.30. a.m. on 6.6.1998, while late A.K. Noufal, a businessman aged 24 years, riding a motor cycle bearing registration No.KRC-9850 along Valapattanam-Kannur road, a van bearing registration KRC-2274, owned and driven by respondents 7 and 8 hit him down and as a result he sustained injuries. While being lifted to the hospital Noufal succumbed to the injuries. The claimants who are the parents and siblings filed the above petition before the Tribunal styling as one under Section 163 A of the Motor Vehicles Act claiming a sum of Rs.7 lakhs as compensation with a plea that the accident occurred because of the rash and negligent driving of the van by the 8th respondent and hence respondents 7, 8 and the appellant are liable to compensate the claimants as owner, driver and insurer of the van.

3. Respondents 7 and 8, remained ex parte. The appellant filed a written statement, whereby the insurance policy was admitted, but contended that the accident occurred because of the negligence on the side of the deceased and that the 8th respondent had no badge and he was not authorized to drive a transport vehicle and that he was not rash or negligent and therefore the appellant is not liable to compensate the claimants.

4. After raising the issues, an enquiry was conducted. During enquiry, the 1st respondent was examined as PW1. Ext.A1 to A5 were marked. Though it is stated in paragraph 6 of the award that no evidence was adduced by the appellant, in the appendix of the award it is seen that Exts.B1 to 4 were marked as appellant’s documents.

5. The Tribunal below did not probe into the dispute as to whose negligence caused the accident by stating that the claim made is under Section 163A of the Motor Vehicles Act. On the basis of the materials produced, the Tribunal by the impugned award arrived at a finding that as per the structured formula, respondents 1 to 6 are entitled to a sum of Rs.4,14,000/-as compensation, in determining the compensation, the income of the deceased was taken as Rs.3,000/-per month. Now this appeal.

6. The main contention that was advanced is that in the petition it is stated that the deceased was having a monthly income of Rs.6,000/-. But, the second schedule inserted by Act 54 of 1994 can be applied to a claim under Section 163 A only if the annual income of the victim/deceased is not exceeding Rs.40,000/-. In this case, the annual income stated in the application would come to Rs.72,000/-per annum. Therefore, according to learned counsel for appellant, the claim under Section 163A is not sustainable and that the respondents 1 to 6 should have applied under Section 166 of the M.V. Act Placing reliance on the decisions reported in Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd [2004 (2) KLT 395 SC], National Insurance Co. Ltd Vs. Divakaran [2009 (4) KLT 90] and United India Insurance Co. Ltd Vs. Akbar Shihab [2012 (2) KLT 242], the learned counsel sought for allowing the appeal and remanding the matter to the Tribunal below so as to convert the petition to one under Section 166 of the Motor Vehicles Act and to re-calculate the compensation awarded. Yet another grievance of the appellant is that the 3rd respondent, who was driving the van, was not authorized to drive the van and therefore, the Tribunal should have reserved a right to the appellant to realise the award amount from the owner.

7. It is pertinent to note that the appellant had not assailed the quantum of compensation determined by the Tribunal. Neither do any of the respondents dispute. The appellant had not adduced any evidence supporting its pleading attributing negligence against the deceased.