- (1.) WE have heard Sri Akhtar Abbas learned counsel for the appellant and Sri Rajendra jaiswal, learned Counsel appearing on behalf of claimants-respondents.
(2.) THIS first appeal has been filed against the judgment and award dated 19th March, 2005 passed by the Motor Accident Claims tribunal, Lucknow in Motor Vehicles Claim no. 176 of 2000 (Sakina Bano and others versus U. P. State Road Transport corporation ).
(3.) LEARNED Counsel for the appellant has assailed the impugned award on various points. He has firstly argued thatthe deceased, namely Shamim Ansari, was working as a driver with the Corporation on contract basis and on the fateful date i. e. 11th April, 2000 he was to take Bus No. U. P. 32 A 2115 from Kaiserbagh Depot, Lucknow to gorakhpur. The accident occurred because the deceased went under the bus to make some repairs but suddenly the bus moved forward and he got entangled suffering injuries and subsequently died. He, therefore, contends that negligence was on the part of the deceased who was driver of the bus and, therefore, when the deceased himself was responsible for the accident, his legal heirs could not make any claim before the Motor accidents Claims Tribunal in view of proviso to sub-section (1) of Section 166 of the Motor vehicles Act, 1988 (hereinafter referred to as the Act ). The second contention is that the claim was filed under Section 163-A of the motor Vehicles Act, wherein compensation is determined by the Structured formula and since the Tribunal has concluded that the annual income of the deceased was above rs. 40,000/- therefore, the compensation under Section 163-A of the Act could not have been granted to the legal heirs of the deceased. He further submitted that since the claimants had themselves claimed the income of the deceased at the rate of rs. 3,000/- per month, the Tribunal has illegally assessed his income at the rate of rs. 3,500/- per month. He has also submitted that since the deceased was in the employment of the Corporation and his legal heirs could not have maintained the claim petition before the Motor Accidents Claims tribunal hence their remedy was to approach the authority under the Workmen's compensation Act, 1923 for compensation.;