Amitava Lala, J. - (1.) -The appellant-insurance company has challenged the judgment and order dated 26.4.2008, 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 monthly 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 163A of 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 in Smt. Manjula Devi Mishra and others v. Commercial Motors, Kanpur and others, 2007 (2) AWC 2050. 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 : 1996 (3) AWC 1489 (SC), 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 163A of 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 Claim Tribunals 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 163A or under Section 166 of the Act, but both cannot be proceeded simultaneously. In case it is under Section 163A, limitation will 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 163A has been applied. The Court is compelled to arrive at 'just' compensation. There is no question of limit of compensation upto Rs. 40,000 in such circumstance. Submission appears to be misconceived in nature. 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.
(3.) INCIDENTALLY, the appellant-insurance company prayed that the statutory deposit of Rs. 25,000 made before this Court for preferring this appeal be remitted back to the concerned Motor Accidents Claims Tribunal as expeditiously as possible in order to adjust the same with the amount of compensation to be paid to the claimant, however, such prayer is allowed.;