SANJAY MISRA, ALOK K. SINGH, JJ. ( 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 Workmens compensation Act, 1923 for compensation. 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 Workmens compensation Act, 1923 for compensation. ( 4 ) AS far as contention of learned Counsel for the appellant that death of the deceased occurred due to his own negligence and he being a driver of the bus had met with the accident, his legal heirs could not maintain a claim petition, is concerned we find that under the Act the definition of driver has been given as under: - "driver includes, in relation to a motor vehicle which is drawn by another motor vehicle the person who acts as a steersman of the drawn vehicle. " It is quite apparent from the aforesaid definition that driver is a person who steers the drawn vehicle. In the present case it is alleged that the deceased was employed as a driver of the vehicle. However, the facts clearly indicate that he was not steering the drawn vehicle at the time of the accident but was under the vehicle when he got crushed. Consequently we do not agree with the contention of learned counsel for the appellant that only due to the nature of employment of the deceased, he being a driver, would debar his legal heirs from making claim under the Motor Vehicles act when it is fully established that at the time of the accident he was not steering the drawn vehicle. ( 5 ) THE contention that since the claim was made under Section 163-A and the annual income if assessed at more than Rs. 40,000/-would not be maintainable we find that if a claim under Section 163-A (1) is made the claimant is not required to plead or establish that the death in respect of which the claim has been made was due to any wrongful act or negligence of fault of the owner of the vehicle and the compensation has to be determined in accordance with Schedule 2. It is not disputed that the deceased was 45 years of age and multiplier of 15 has been applied. However, the dispute is on two scores; firstly the claim was made on the basis of monthly income of Rs. It is not disputed that the deceased was 45 years of age and multiplier of 15 has been applied. However, the dispute is on two scores; firstly the claim was made on the basis of monthly income of Rs. 3,000/- and the Tribunal has accepted Rs. 3,500/- per month and secondly the annual income should not be more than Rs. 40,000/- to bring the claim within the fore corners of Section 163-A of the Act. Upon going through the impugned award we find that in the claim petition a claim was made that the deceased was earning at the rate of 35 paisa per kilometer and was getting approximately Rs. 3,500/- per month. It has been reiterated in oral evidence that the deceased was earning at the rate of 35 paisa per kilometer and was getting approximately Rs. 3,500/- per month. Therefore, the contention that the Tribunal has erred infixing the income of the deceased at the rate of Rs. 3,500/- per month because the claim was only for Rs. 3,000/- per month in the claim petition, cannot be accepted. The statement of the claimant has been clearly recorded and it has confirmed the averment made in the claim petition that he was earning at the rate of 35 paisa per kilometer. Hence the deceased was not receiving a fixed monthly income but it was stated to be approximately Rs. 3,000/- to Rs. 3,500/- per month in the oral statement made before the tribunal. The Tribunal has relied upon the oral statement made by the Foreman of the appellant Corporation, namely Gopal Nath sinha, wherein he has stated that the deceased was to take the bus from Lucknow to Gorakhpur and to bring back the bus from gorakhpur to Lucknow and he was to be paid at the rate of 35 paisa per month. The Tribunal considered the said oral statement and found that the distance between Lucknow and gorakhpur is 250 kilometres. Therefore when the deceased was to bring the vehicle back to Lucknow, he would have covered 500 kilometres. It found that the emoluments of the deceased at the rate of 35 paisa per kilometer per month would be as under:- 35 paisa x 500 kilometres x 30 days. . Therefore when the deceased was to bring the vehicle back to Lucknow, he would have covered 500 kilometres. It found that the emoluments of the deceased at the rate of 35 paisa per kilometer per month would be as under:- 35 paisa x 500 kilometres x 30 days. . However, while considering the nature of employment of the deceased being purely contractual, it found that some days in a month he would not be required to work and hence has reduced the 30 days to 25 days. The Tribunal has also reduced the distance from 500 kilometres to 400 kilometres and has arrived at the conclusion that at the rate of 35 paisa x 400 kilometres x 25 days it would be Rs. 3,500/- per month. The said finding is in accordance with the agreed rate which was to be paid by the corporation to the employee and in accordance with the oral statement made by the Foreman of the Corporation before the Tribunal. Hence we cannot accept the contention of learned Counsel for the appellant that the compensation awarded by the Tribunal taking the monthly income of the deceased at rs. 3,500/- is in any manner erroneous. ( 6 ) THE third submission of learned Counsel for the appellant that the Motor Accident claims Tribunal had no jurisdiction to entertain the claim and the claimants ought to have approached the authority concerned under the Workmens Compensation Act, 1923 has been dealt with by the Tribunal as issue no. 4 wherein it has been recorded that no evidence was led by the parties and hence the Tribunal rejected the said contention while deciding issue No. 4. ( 7 ) WE find, from the facts of this case, that the deceased was not driving the vehicle at the time when he met with the accident. He would not be a person covered under the definition of driver as given under the Act. He was not driving the vehicle hence there was no issue of any negligence on his part as a driver. His nature of employment would have no significance at the time the accident occurred. Therefore, it cannot be held that his legal heirs could only approach under the workmens Compensation Act, 1923. The claim petition under the Motor Vehicles Act was clearly not barred. His nature of employment would have no significance at the time the accident occurred. Therefore, it cannot be held that his legal heirs could only approach under the workmens Compensation Act, 1923. The claim petition under the Motor Vehicles Act was clearly not barred. ( 8 ) LEARNED Counsel for the respondents has placed reliance upon the case of smt. Rita Devi v. New India Assurance Co, ltd. and another and a decision of a Division bench of this Court in the case of United India insurance Company Ltd. v. Smt. Chandra kali and another, to contend that the object of both the Acts is to provide compensation to the victims of accidents, the only difference being that the Workmens Compensation Act is confined to workmen as defined under the act. ( 9 ) LEARNED Counsel for the respondents has also relied upon para 67 of the case of deepal Girishbhai Soni v. United Insurance co. Ltd. Baroda. The said para 67 is quoted hereunder:- "67. We, therefore, are of the opinion that Kodala (A. I. R. 2001 SC 183 d2: 2001 A. I. R. S. C. W. 1602) has correctly been decided. However, we do not agree with the findings in Kodala (supra)that-if a person invokes provisions of 1. (2001) S. C. D. 43 = 2000 (2) TAC 213. 2. 2003 (1) TAC 11. 3. 2004 (5) ALT 11 (SC) = air 2004 SC 2107 = 2004 (2) TAC 289. Section 163-A, the annual income of rs. 40,000/- per annum shall be treated as a cap. Inouropinion, the proceedings under Section 163-A being a social security provision, providing fora distinct scheme, only those whose annual income is upto Rs. 40,000/- can take the benefit thereof. All other claims are required to be determined in terms of chapter XII of the Act. " From the law laid down by the Honble supreme Court we find that although a cap is provided under Section 163-A of the Act with an annual income of Rs. 40,000/- but in the present case the annual income has been assessed at Rs. 42,000/ -. Therefore, in view of the fact that it is a social security provision, providing for a distinct scheme, we do not find that any error has been committed by the tribunal in awarding compensation under section 163-A of the Act. 40,000/- but in the present case the annual income has been assessed at Rs. 42,000/ -. Therefore, in view of the fact that it is a social security provision, providing for a distinct scheme, we do not find that any error has been committed by the tribunal in awarding compensation under section 163-A of the Act. The submission of the learned Counsel for the appellant to the contrary cannot be accepted. ( 10 ) IN the result the F. A. F. O. is dismissed. The claimants-respondents would be entitled to the claim as has been awarded by the tribunals after deduction of the amount, if any, already paid by the appellant towards the said liability. Any amount deposited by the appellant before this Court may be remitted to the Tribunal within a month from today for its due payment to the claimants. No order is passed as to costs. . .