JUDGMENT H. Baruah, J. 1. Heard Mr. A.R. Malhotra, Learned Counsel appearing for the appellant as well as Mr. S.N. Meitei, Learned Counsel for the respondent No. 1. None appears for and on behalf of respondent Nos. 1 and 2. 2. In challenge is the judgment and award dated 19.11.2007 passed by the learned Member, Motor Accident Claims Tribunal, Lunglei in MAC Case No. 5/2005. 3. The respondent No. 1 herein, as claimant preferred a claim petition before the learned Member, MACT Lunglei on account of death of his son due to vehicular accident that occurred on 1.1.2005 at Borapansury road within the jurisdiction of Tlabung Police Station. The accident vehicle being registration No. MZ-05/0636 at the relevant point of time belonged to respondent No. 2 herein, which was driven by respondent No. 3. In the said accident, all together 9 (nine) persons sustained injuries including the son of the claimant who subsequently succumbed to such injuries. It is alleged that the respondent No. 3 had a valid driving license and the accident vehicle was insured with the United India Insurance Co. Ltd., the appellant herein. It is also claimed that the accident occurred due to mechanical failure. 4. On filing of the claim petition, enquiry commenced and after due enquiry the learned Member, MACT passed the judgment and award which is now under challenge. 5. The judgment and award has been challenged mainly on the following three grounds: (i) that the claim petition having been filed under Section 166 of the Motor Vehicle Act, 1988, the claimant is duty bound to prove the negligence on the part of the driver, the respondent No. 3. The tribunal while dealing with issue No. 3 held that the accident occurred due to mechanical failure and not due to negligence of the driver. The tribunal while dealing with issue No. 3 held that the accident occurred due to mechanical failure and not due to negligence of the driver. In the face of the above facts and finding, the appellant cannot be fastened with liability and as such, the award is liable to be set aside and quashed; (ii) that the tribunal failed to assess the objection taken in the written statement by the appellant that on account of death or injury of an unauthorized gratuitous passenger of the vehicle involved, the claimant is not entitled to have compensation for such death or injury sustained; and (iii) that the claimant is also not entitled to have compensation on account of death of his son, a labourer since the respondent No. 2 did not pay any additional premium to cover any risks for death or bodily injury to the labourers employed by him. Unless extra premium is paid, the appellant company has no liability to make compensation on account of death of the deceased. 6. Mr. A.R. Malhotra, Learned Counsel appearing for the appellant submits that when a claim is made under Section 166 of the M.V. Act in respect of death or bodily injury, the claimant is required to prove negligence on the part of the driver of the offending vehicle. Since the learned tribunal is of the view that the respondent No. 3, the driver was not negligent in driving of the offending vehicle and the accident occurred due to mechanical failure, the appellant, the insurer of the offending vehicle cannot be held liable for such compensation. He farther argues that no extra premium has also been paid by the respondent No. 2, the owner of the offending vehicle covering the risk of death or bodily injury of the employees employed by him. According to Mr. A.R. Malhotra the deceased was neither employed as driver nor conductor nor ticket collector rather the deceased was a labourer as it appears from the record. There is no evidence forthcoming that the respondent No. 2, the owner paid extra premium covering all the employees engaged by him including the labourers. Therefore, apparently, the deceased was a gratuitous passenger of the offending vehicle and as such, the claimant is not entitled to compensation. Mr. A.R. Malhotra in support of his contention relied in a decision Ramashray Singh v. New India Assurance Co. Ltd. and Ors. Therefore, apparently, the deceased was a gratuitous passenger of the offending vehicle and as such, the claimant is not entitled to compensation. Mr. A.R. Malhotra in support of his contention relied in a decision Ramashray Singh v. New India Assurance Co. Ltd. and Ors. (2003) 10 SCC 664 . In the case (supra), the Hon'ble Supreme Court in Paragraph 6 discussed the provisions of Section 146 of the M.V. Act which deals with the requirements of having an insurance policy for use of motor vehicle in public place. Section 146(1) speaks that no person shall use a motor vehicle in public unless there is a valid policy of insurance which complies with the requirement of the chapter. In Paragraph 7 of the judgment, the Supreme Court held that expression "any person" and "any passenger" appearing in Sub-Clauses (i) and (ii) of Section 147(1)(b) covers only a driver, a conductor or examiner of tickets, no other employee such as cleaner (Khalasi) covered. Mr. A.R. Malhotra, therefore, argues that the deceased being not covered under Section 147(1)(b) of the Act, his death on account of vehicular accident, the claimant is not entitled to any compensation whatsoever. That apart, when no extra premium is paid by the respondent No. 2, the owner of the offending vehicle, the Insurance Company, the appellant herein also cannot held liable. This aspects of the matter, according to Mr. Malhotra being not taken care of by the tribunal, the judgment and award passed by the tribunal, therefore, cannot fasten the appellant to liability. 7. Per contra to the submission advanced by Mr. Malhotra, Mr. S.N. Meitei, Learned Counsel for the claimant/respondent No. 1 submits that when there is ample evidence showing employment of the deceased as labourer-cum-handyman by the respondent No. 2, the matter is squarely covered by Section 147 of the Act since the deceased is covered by expression "any person" and "any passenger" employed under Section 147 of the Act. Mr. Meitei further argues that the insurance policy which finds place in Annexure-III shows payment of extra premium for two numbers of work charged employees. This being in the face of the record, according to Mr. Meitei, it cannot be argued that the respondent No. 2 did not pay extra premium for two work charged employees. Mr. Meitei therefore argues that the stand taken by Mr. This being in the face of the record, according to Mr. Meitei, it cannot be argued that the respondent No. 2 did not pay extra premium for two work charged employees. Mr. Meitei therefore argues that the stand taken by Mr. Malhotra, Learned Counsel for the appellant has no leg to stand in view of the fact of payment of extra premium. 8. I have given my anxious consideration to the submissions advanced by the Learned Counsel of either party and the evidence of CW2, the respondent No. 2 herein. CW2 Sh. Melon Chandra Dey, the owner of the accident vehicle without any ambiguity stated that the deceased Sobhinoy Chakma was employed in his vehicle for loading and unloading of goods and also as a handyman and he was paid Rs.700 p.m. with lodging and pocket money. This goes to show that the deceased was also employed as handyman. Since extra premium was evidently paid by the respondent No. 2, the owner of the offending vehicle, covering the risks of the two works charge employees, to the view of this Court, the argument advanced by Mr. Malhotra cannot sustain and the deceased cannot be branded as gratuitous passenger. 9. Further, it is also argued by Mr. Malhotra that since the claimant had already taken the interim relief as provided under Section 140 of the Act, the apparent inference would be that the claim petition was filed under Section 166 of the Act, where fault liability is required to be proved. Referring to provisions of Section 163B of the Act, it is argued by Mr. Malhotra that where a person is entitled to claim compensation under Section 140 and Section 163A of the Act, he shall file the claim either of the said sections and not under both. Receiving of interim relief by the claimant after filing of the claim petition, according to Mr. Malhotra, mean and mean that the claim petition so filed cannot be under Section 163A, such a petition is debarred/prohibited by the provisions of Section 163B of the Act. The claim petition has been marked as exhibit 1(a). It is nowhere mentioned in exhibit 1(a) that the compensation is claimed under Section 163A. The order dated 13.9.2005 passed by the tribunal goes to show that the claim petition is under Section 166 of the M.V. Act where a compensation of Rs.3,20,000 has been claimed. 10. The claim petition has been marked as exhibit 1(a). It is nowhere mentioned in exhibit 1(a) that the compensation is claimed under Section 163A. The order dated 13.9.2005 passed by the tribunal goes to show that the claim petition is under Section 166 of the M.V. Act where a compensation of Rs.3,20,000 has been claimed. 10. It is argued by Mr. Meitei that though, an interim award was made to the claimant by the tribunal, the same was directed to be refunded by the tribunal vide judgment and award dated 19.11.2007 and this being the position, the claim petition can be treated as a petition under Section 163A of the Act. This argument is vehemently objected by Mr. Malhotra in view of order dated 13.9.2005 as well as on account of receipt of the interim relief by the claimant. It is true that the claimant is under liability to prove the fault liability when the claim petition is under Section 166 of the Act, but that burden is not required to be shouldered by the claimant when the claim petition is under Section 163Aof the Act. We have already found from the judgment that the respondent No. 3 was held not to be negligent, in driving the offending vehicle which met with an accident. It occurred due to mechanical failure of the machineries of the vehicle. When the tribunal ordered refund of the interim relief granted by it, perhaps there will be no impediment in treating the claim petition as a petition under Section163A of the Act. From the evidence on record more particularly the evidence of CW2, the owner of the offending vehicle, it appears that the deceased was receiving Rs.700 plus other allowances per month so, in that calculation the annual income of the deceased could not exceed Rs.40,000 (forty thousand) per annum. An application under Section 163A is maintainable when the annual income does not exceed Rs.40,000. The learned tribunal took the monthly income as deposed by CW2 and, thus, calculated notional income at Rs.15,000 per year. This issue is not challenged by neither of the party. Therefore, this Court does not find any impediment in accepting the annual income as held by the tribunal. The award being not challenged by the appellant nor by the respondent by filing a cross-objection. This issue is not challenged by neither of the party. Therefore, this Court does not find any impediment in accepting the annual income as held by the tribunal. The award being not challenged by the appellant nor by the respondent by filing a cross-objection. It is thought not appropriate to interfere with the award since the respondent No. 2 paid extra premium for two work charged employees of the vehicle so engaged, the deceased being covered, the claimant is entitled to have the compensation on account of death of his son who was employed by respondent No. 2 as labourer-cum-handyman. 11. Having considered all the facts and circumstances of the case, evidence on record and the law laid down by the Supreme Court, this court is of the view that despite registration of the claim under Section 166 and payment of no fault liability under Section 140, direction to refund the no fault liability so received by the tribunal to the claimant, the claim petition can be very well branded as a claim petition under Section 163A since the annual income of the deceased has not exceeded Rs.40,000. 12. Having considered all the matters in its entirety, this Court finds no ground to interfere with the impugned award. In the result, the appeal fails. 13. Send down the records of the court below. Appeal dismissed.