AMITAVA LALA, J. - (1.) THE appellant-insurance company has chal­lenged the judgment and order dated 26th April, 2008 passed by the concerned Motor Accidents Claims Tribunal, Gautam Budh Nagar. It has been contended by the learned Counsel appearing for the appellant that the claim petition was filed after a period of six months and no number of the vehicle was known at the time of accident when the first information report was lodged immediately on the next date of the accident. However, the police investigation was made, the vehicle was found out and the charge-sheet has been filed against the driver before the appro­priate criminal Court of the competent jurisdiction. Therefore, we cannot accept any ground with regard to non-involvement of the vehicle.
(2.) SO far as income of the deceased is concerned, the tribunal held that as per the salary certificate the deceased was getting monthly salary of Rs. 12, 213/- but after deducting loan instalment he was taking home a sum of Rs. 7, 812/-, which the tribunal ultimately rounded up to Rs. 7, 800/- as per month salary and upon giving deduction even thereafter arrived at the compensation of Rs. 9, 66, 000/-, Firstly, the insurance company contended that the income was Rs. 7, 812/- as held by the tribunal. According to us, it is misreading of the learned Counsel appearing for the insurance company because the salary is Rs. 12, 213/- per month as per the certificate. Any deduction on account of loan is also part of the salary. Therefore, the tribunal itself came to a finding that the salary will be con­sidered as Rs. 7, 800/- and upon giving deduction awarded the compensation, which should be held on the lower side but not on the higher side. The insurance-company further contended before this Court that when the tribunal has followed the Second Schedule under Section 163-Aof the Motor Vehicles Act, 1988 (here­inafter called as the 'Act'), the quantum of income should be within the highest limit of such Schedule i.e. Rs. 40, 000/- per annum not beyond that, and in sup­port of his contention learned Counsel appearing for the appellant relied upon a Division Bench judgment of this Court reported in 2007 (2) AWC 2050 (Smt. Manjula Devi Mishra and others v. Commercial Motors, Kanpur and others). The relevant portion of such judgment is as follows: “... Besides, we would like to make it further clear that in view of decision rendered by Hon'ble Apex Court in U.P. State Road Transport Corporation v. Trilok Chandra, (1996) 4 SCC 362, wherein Hon'ble Apex Court has held that the multiplier and structural formula provided under Second Schedule of the Act can be used as guide for determination of compensation to be awarded to the claimants but in Deepal Girish Bhai Soni and others v. United India Insurance Co. Ltd., Baroda, AIR 2004 SC 2107: 2004 (3) AWC 2011 (SC) Hon'ble Apex Court has categorically held that the claim petition under Sec­tion 163A can be maintainable only in respect of the victims of motor acci­dent having annual income maximum upto Rs. 40, 000. Therefore, in our opin­ion, in cases where the allegations are made that the income of the victim is more than Rs. 40, 000 per annum it is not open for the Tribunal to entertain the claim petition under Section 163Aof the Act, such claim petition can be maintainable under Section 166 of the Motor Vehicles Act, thus, it is not open for the Motor Accident Claims Tribunal to take advantage of Second Schedule of the Motor Vehicles Act and multiplier used therein where the income of victims of motor accident is more than Rs. 40, 000 per annum. The multiplier in respect of age of victims of motor accident has co-relation with the income of the victims in the Second Schedule. Therefore it is not open for the Claims Tribunal to determine the annual income of the victim of motor accident over and above Rs. 40, 000 and then apply the multiplier on the basis of age alone as provided in the Second Schedule of the Act.” We are of the view that such judgment is not supporting the cause of the appellant at all. The ratio of the judgment is that one has to choose as to whether the application will be filed under Section 163-A or under Section 166 of the Act, but both cannot be proceeded simultaneously. In case it is under Section 163-A, limitation be there but in case of application under Section 166 to arrive at a 'just' compensation, the Court has to consider various factors and arrive at the same. We are of the view that at the time of arriving at such finding if the Court considers various parts of the Schedule as a guide, the Court is not” said to be at fault in adopting an appropriate process for the purpose of arriving at compensation. The Court cannot limit itself in such circumstance as because principle of structured formula under Section 163-A has been applied. The Court is compelled to arrive at 'just' compensation. There is no question of limit of compensation upto Rs. 40, 0007 - in such circumstance. Submission appears to be misconceived in nature.
(3.) THEREFORE , in totality we do not find any ground for the purpose of admitting the appeal. Hence, the appeal is dismissed at the stage of admission, however, without imposing any cost.;