(Deepak Gupta, J.) - The claimants are the widow and children of deceased Mohinder Singh. They had filed a petition under Section 140, 163-A and 166 of the Motor Vehicle Act, 1988 (hereinafter referred to as the Act) claiming compensation from Sher Singh, owner of Tractor and Oriental Insurance Company, with whom the tractor was insured. According to the claimants, the deceased Mohinder Singh was an agriculturist and driver and was driving the tractor which met with an accident due to failure of brakes. The Insurance Company contested the petition and alleged that the petition is collusive. The owner of the tractor admitted all the averments made in the claim petition and stated that he had purchased a new tractor and they were all going to Baba Bardbhag Singh to pay obeisance when the tractor fell down and accident occurred due to the negligence of the driver himself. This claim petition was in fact treated to be a petition under Section 140 and 166 and not under Section 163-A of the Act. Neither the learned Tribunal nor any of the counsel treated this petition to be one under Section 163-A of the Act.

2.The learned Tribunal rejected the claim petition by holding that the petitioner has failed to prove the negligence of any party. The present appeal was filed. This appeal was taken up for hearing by the Hon’ble the Chief Justice who dismissed the appeal vide judgment dated 9th August, 2006 and upheld the award of the learned Tribunal by holding that even under Section 163-A of the Act the petitioner was not entitled to any compensation. Review petition No. 46 of 2004 was filed and the same was allowed in view of the Division Bench judgment of this court rendered in Smt.Kokla Devi Vs. Chet Ram and another reported in 2002(1) Shim. L.C.204 : 2002 (2) Current Law Journal (H.P) D.B 268. While allowing the review petition the Chief Justice directed that keeping in view the question of law involved, the matter be heard by a Division Bench.

3.In our considered view Section 163-A of the Act is not at all applicable to the facts of this case. In fact the petition under Section 163-A of the Act was not maintainable in view of the fact that the income of the deceased was stated to be more than Rs.40,000/- per annum. The Apex court in Deepal Girishbhai Soni and others Vs. United India Insurance Company Ltd., Baroda, 2004(5) SCC 385 has clearly laid down that where the income of the deceased victim is more than Rs.40,000/- per annum, the claimants are not entitled to file a petition under Section 163-A of the Motor Vehicle Act. The Apex Court made the following observations in paras 51 and 67 of the judgment:-

51. The scheme envisaged under Section 163-A, in our opinion, leaves no manner of doubt that by reason thereof the rights and obligations of the parties are to be determined finally. The amount of compensation payable under the aforementioned provisions is not to be altered or varied in any other proceedings. It does not contain any provision providing for set-off against a higher compensation unlike Section 140. In terms of the said provision, a distinct and specified class of citizens, namely persons whose income perannum is Rs.40,000/- or less is covered thereunder whereas Section 140 and 166 cater to all section of society.

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67. We, therefore, are of the opinion that Kodala has correctly been decided. However, we do not agree with the findings in Kodala that if a person invokes provisions of Section 163-A, the annual income of Rs.40,000/- per annum shall be treated as a cap. In our opinion, the proceeding under Section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is upto Rs.40,000/- can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act.”

4.Therefore, the petition under Section 163-A of the Act was not maintainable. Since trial has taken place, issues were frame