( 1. ) CLAIMANTS/appellants being aggrieved with the award dt. 20-9-2001 passed by the IIIrd Additional Motor Accident Claims tribunal Gwalior in Claim Case No. 56/2001 vide award dated 20-9-2001, have filed this appeal under section 173 of the Motor Vehicles Act, 1988 (in short the act of 1988) for enhancement of compensation.

( 2. ) BRIEF facts giving rise to this appeal are that on 2-7-2000 in the night deceased Vishnudatta Rathore, who was driving jeep M. P. No. 07 H 2719 and coming from Moina to Gwalior. It was alleged that he was driving the vehicle rashly and negligently. He brought the jeep on the wrong side and dashed the unknown truck. The case of the appellants/claimants was that some other person was driving the vehicle and the deceased was travelling in the jeep as a passenger but in the FIR this fact has been mentioned that the deceased himself was driving the vehicle, though neither the claimants nor the Insurance Company have cleared this fact. The jeep was registered in the name of one Biharilal, who is the brother of the deceased.

( 3. ) CLAIMANTS/appellants, those who are the widow, sons and daughters of the deceased including the parents have filed the claim petition under section 163-A of the Act of 1988 for claiming compensation. ( 4. ) TRIBUNAL found that the deceased was not driving but travelling in the vehicle and the accident took place because of the negligence of both the drivers of the truck as well as of jeep and held that it is a case of contributory negligence and the Tribunal recorded a finding that the case will not fall under section 163-A of the Act of 1988, but compensation can be awarded under section 166 of the act of 1988 and considering the principle of contributory negligence assessed the total income of the deceased at Rs. 2000/- per month and Rs. 24,000/- p. a. deducted 1/3rd amount towards personal expenses and calculated the dependency as Rs. 16,000/- p. a. and awarded total compensation of Rs. 2,84,000/- but reduced the amount- of compensation as of 1/2 , applying the principle of contributory negligence, against which the claimants/appellants have filed this appeal.

( 5. ) WE have heard the learned counsel for the parties. Shri B. D. Verma, learned counsel for the appellants submitted that the Tribunal has committed illegality in considering the claim petition under section 166 of the Act of 1988, when it was filed under section 163a of the Act of 1988, in which there is no question to consider the wrongful act, negligence or default of the owner of the vehicle or vehicles concerned or of any other person and also submitted that if the case is considered under section 163-A of Act of 1988, then the question of contributory negligence will not arise and the finding of the Tribunal would be contrary to law and he further submitted that the income of the deceased has not been assessed properly. He was engaged in trading business of grains. He has produced number of documents on record to prove that he was purchasing grain from Mandi and selling it and the income of the deceased was around Rs. 7000-8000 per month but his submission was that since he is claiming compensation under the special provisions of section 163-A of the Act of 1988, therefore he can not claim compensation beyond Rs. 40,000/- p. a. , which is the ceiling limit under the Second Schedule.

( 6. ) PER contra, Shri R. V. Sharma, learned counsel for the respondent supported the award passed by the Tribunal and his contention was that the deceased was not travelling as a passenger but he himself was driving the vehicle as is clear from the FIR (Ex. P/1 ). Therefore, under sub-section (2) of section 163-A, it would be a case of contributory negligence.

( 7. ) HAVING heard the learned counsel for the parties, first of all we have considered this aspect of the matter that whether the case will fall within the provisions of section 163-A of the Act of 1988 or the case will fall within the provisions of section 166 of t