JUDGMENT :

SINDHU SHARMA, J.

1. This appeal by the New India Assurance Company Limited is against the award dated 09.04.2018 vide which the learned Motor Accidents Claims Tribunal, Jammu has awarded Rs. 21,30,000/- (Rupees Twenty one Lac thirty thousand) to the respondent/claimant for the death of his mother alongwith interest at the rate of 6.75% from the date of institution of the petition.

2. Grounds of the appeal as stated are as under:-

(i) That the award is against the law and facts.

(ii) That the deceased was a housewife and her monthly income has been wrongly assessed as Rs. 15,000/- per month.

(iii) That the learned Tribunal has erred in fixing the dependency by deducting 1/3rd income though it should have been 50%

(iv) That the compensation awarded is much higher and than just compensation since the driver of the offending vehicle was not holding a valid and effective license and, therefore, the learned Tribunal was wrong in directing the appellant/company to satisfy the award.

(v) The award is passed on surmises and conjectures, as such, it suffers from perversity.

3. It is an unfortunate case where the claimant-Akash Bhat lost both his parents in motor accidents when the offending vehicle alleged to have rammed into the Car driven by the father of the claimant with his mother as his occupant while going to Chandigarh on 29.11.2015. The death of both the husband and wife in the accident is not disputed, father of the claimant was Assistant Sub-Inspector (ASI) in the State Police Department and drawing monthly salary of more than Rs. 47,000/- per month.

4. Learned Tribunal decided both the claim petitions by a common award passed on 09.04.2018, however, the appellant has not challenged the award regarding the amount awarded for the death of claimant's father and probably by now award must have already been satisfied as per the directions of the learned Tribunal. The date of birth of Smt. Raino Bhat, mother of the petitioner as given in the application is 11.02.1970. Thus, only the question involved in this appeal is whether in calculating the income of the deceased, Clause (6) of the Second Schedule of the Motor Vehicles Act, 1988, is applicable as held by the Tribunal in answering the loss of income of the deceased. Clause (6) of the Second Schedule of the Motor Vehicles Act, 1988 is extracted below for ready reference:-

“6. Notional Income for compensation to those who had no income prior to accident:-

Fatal and disability in non-fatal accidents:

In case of other injuries only “general damage” as applicable.”

5. Since the deceased's mother of the claimant was non-earning person, therefore, the annual income was assessed at Rs. 15,000/- per month by considering her income under clause 6(b) of the Schedule. In terms of the judgment of Hon'ble Supreme Court in Oriental Insurance Co. Ltd. vs. Dhanbai Kanji Gadhvi and Others, the Para 6(b) and (Para 7) of the Schedule which has been applied by the learned Tribunal but the same is not applicable because it relates to 1/3rd of the income of the earning/surviving spouse. Since the husband of the deceased also died in the same accident on the same date, therefore, her spouse has not survived her to attract Clause 6(b) of the Second Schedule.

6. The Hon'ble Supreme Court in terms of the said judgment, compensation both under Sections 163-A and 166 being final and independent of each other as statutorily provided and that a claimant cannot pursue his remedies there under simultaneously. The claimant, as such, opts to elect either proceedings under Section 163-A or 166 of the Motor Vehicles Act but not under both. The High Court, therefore, was of the opinion that under Section 163-A of the Act would not apply but in case of non-earning person, the guidance can be