ORAL JUDGMENT 1. Heard learned advocate Mr.Vibhuti Nanavati for appellant Insurance Co. 2. In this appeal, appellant - Insurance Co. has challenged award passed by MAC Tribunal, Banaskantha at Palanpur in MACP No.39 of 2007 dated 7.10.2008 whereby claims Tribunal has awarded Rs.1,74,500/- being a compensation to legal heirs and representative of deceased with 9% interest. 3. Learned advocate Mr.Nanavati submitted before this Court that a specific contention was raised in Para.13 by advocate of Insurance Co., Mr.Soni, after producing insurance policy before claims Tribunal in respect to Jeep No.GJ-8-A-8050 where insurance policy was act policy. Therefore, occupant being a deceased travelling in jeep, who died, therefore, claimants are not entitled any amount of compensation because there was no additional premium paid by owner of vehicle. Relying upon decision of Apex Court in case of Tilak Singh v. United India Insurance Co. ltd. reported in 2006 ACJ 1441 , he submitted that pillion rider is not covered when act policy issued by Insurance Co., therefore, Insurance Co. has committed gross error in deciding matter and ignoring Apex Court's judgment and awarded compensation in favour of claimant. Except that, he has not made any other submissions before this Court. 4. I have considered contentions raised by learned advocate Mr.Nanavati and also perused award in question. The claims Tribunal has considered decision of this Court in case of National Insurance Co. Ltd. v. Ruksanaben reported in 2007 (1) GLH 171 where following observations are made, which are quoted as under : As regards the second contention, we find that decision in Tilak Singh's case 2006 (4) SCC 404 was rendered in an application under section 166 of the Act. In that case, the accident took place on 31.10.1989. The decision of Apex Court was not rendered in an application under Section 163A of the Act introduced in the year 1994. The non obstante clause with which clause 163A(1) begins makes it clear that the liability of the insurance company to satisfy the award is not dependent upon any other provisions of the Act and, therefore, the question whether the passenger in the motor cycle was a gratuitous passenger or whether he can be said to be third party or not would not be relevant. The contention, therefore, must be rejected. 5. The contention, therefore, must be rejected. 5. Learned advocate Mr.Nanavati is not agreed with this reasoning given by this Court relying upon decision of Apex Court in case of National Insurance Co. Ltd. v. Swarna Singh reported in AIR 2004 SC 1531 . Relying upon Para.105 of aforesaid decision, he submitted that Insurance Co. is entitled to raise a defence in a claim petition filed under Section 163A or 166 of MV Act inter alia in terms of Section 149(2)(a)(ii) of said Act. I have considered this submission made by learned advocate Mr.Nanavati. The claim petition was filed by claimant under Section 163A of MV Act. Therefore, claimant shall not have to plead negligence or establish wrongful act of owner of the vehicle. Accordingly, claims Tribunal has considered that deceased who died was travelling being an occupant in jeep where act policy was issued in favour of owner in respect to Jeep No.GJ-8-A-8050. The accident occurred on 8.5.2006 when jeep was going from Tharad to Sanchor on highway road near Diamond Petrol Pump as well as in jurisdiction of Tharad police station about 16.30 hrs. one opposite vehicle bearing Jeep No. GJ-8-V-1945 coming from opposite side, dashed with jeep No.GJ-8-A-8050 and due to this vehicular accident, one Suviben had expired, who was travelling as an occupants in Jeep No.GJ-8-A-8050. On that basis, claim petition was filed claiming Rs.4,66,500/- by claimant. A reply was filed by appellant Insurance Co. at Exh.26. The advocate of Insurance Co. made submission before claims Tribunal that in absence of cogent evidence in respect to income of deceased, notional income is to be considered by claims Tribunal and on that basis, compensation is to be awarded by claims Tribunal. These averments made in Para.4 by claims Tribunal which have not been denied by advocate of Insurance Co. Similarly, in Para.10 also, advocate of Insurance Co. has made submission that in absence of the cogent evidence in respect of income of deceased, who was bagger and therefore, notional income is to be considered for awarding compensation to claimant. So, in Para.4 and 10, a specific admission was made by advocate of Insurance Co. before claims Tribunal to consider notional income and then, to award compensation on that basis. However, a legal contention has been raised which referred in Para.30, against which claims Tribunal has relied upon decision of this Court in case of Ruksanaben (supra). 6. So, in Para.4 and 10, a specific admission was made by advocate of Insurance Co. before claims Tribunal to consider notional income and then, to award compensation on that basis. However, a legal contention has been raised which referred in Para.30, against which claims Tribunal has relied upon decision of this Court in case of Ruksanaben (supra). 6. Learned advocate Mr.Nanavati submitted that advocate is entitled to make alternative submission before claims Tribunal and that cannot be considered to be an admission of advocate. I have also considered this contention but, it is clear from the record itself that admission was made by advocate of Insurance Co. that to consider notional income of deceased and on that basis, compensation be awarded. Merely subsequently raising legal contention and on that basis, award has been challenged by Insurance Co. before this Court. 7. Recently, Apex Court has examined effect of Section 163A of the MV Act in case of Ningamma & Anr. v. United India Insurance Co. Ltd in Civil Appeal No.3538 of 2009 arising out of SLP (C) No.24236 of 2008 with Civil Appeal No.3540 of 2009 arising out of SLP (C) No.25497 of 2008 dated 13.5.2009 delivered by Mr.Justice S.B.Sinha and Dr.Justice Mukundakam Sharma wherein it has been observed that scope of Section 163-A which was inserted by Act 54 of 1994 has been considered being a social security scheme. The following observations are very relevant, therefore, quoted as under : In view of the language used in said section there could be no manner of doubt that the said provision has an overriding effect as it contains a non obstante clause in terms whereof the owner of the motor vehicle or the authorized insurer is liable to pay compensation in the case of death of permanent disablement due to accident arising out of the use of motor vehicle, as indicated in the second schedule, to the legal heirs or the victim, as the cast may be. 8. The Apex Court has considered other decision in case of Deepal Girishbhai Soni v. United India Insurance Co. Ltd. reported in (2004) 5 SCC 385 as well as also considered the decision in case of Oriental Insurance Co. 8. The Apex Court has considered other decision in case of Deepal Girishbhai Soni v. United India Insurance Co. Ltd. reported in (2004) 5 SCC 385 as well as also considered the decision in case of Oriental Insurance Co. Ltd. v. Meena Variyal reported in (2007) 5 SCC 428 and also considered case of Asha Rani and after considering aforesaid decisions, Apex Court has made observations about scope of Section 163A of the MV Act having overriding effect in Para.14, 15 and 16, which are quoted as under : 14.Section 163-A of the MVA was inserted by Act 54 of 1994 by way of a social security scheme. It is needless to say that the said provision is a code by itself. The said provision has been inserted to provide for a new predetermined structured formula for payment of compensation to road accident victims on the basis of age/income of the deceased or the person suffering permanent disablement. In view of the language used in said section there could be no manner of doubt that the said provision has an overriding effect as it contains a non obstante clause in terms whereof the owner of the motor vehicle or the authorised insurer is liable to pay compensation in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. 15. A number of decisions have been rendered by this Court in respect of the Section 163A of the MVA. In Deepal Girishbhai Soni v. United India Insurance Co. Ltd., (2004) 5 SCC 385 , at page 402, one of us (Hon'ble Justice S. B. Sinha) has observed as follows: "42. Section 163-A was, thus, enacted for grant of immediate relief to a section of the people whose annual income is not more than Rs 40,000 having regard to the fact that in terms of Section 163-A of the Act read with the Second Schedule appended thereto, compensation is to be paid on a structured formula not only having regard to the age of the victim and his income but also the other factors relevant therefor. An award made thereunder, therefore, shall be in full and final settlement of the claim as would appear from the different columns contained in the Second Schedule appended to the Act. The same is not interim in nature. The note appended to column 1 which deals with fatal accidents makes the position furthermore clear stating that from the total amount of compensation one-third thereof is to be reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. This together with the other heads of compensation as contained in columns 2 to 6 thereof leaves no manner of doubt that Parliament intended to lay a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation for proving that the accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out of use of a motor vehicle. This Court further observed in Oriental Insurance Co. Ltd.v. Meena Variyal, (2007) 5 SCC 428 , at page 428: "18. In New India Assurance Co. Ltd. v. Asha Rani this Court had occasion to consider the scope of the expression "any person" occurring in Section 147 of the Act. This Court held: (SCC p. 235, para 26) "... that the meaning of the words `any person' must also be attributed having regard to the context in which they have been used i.e. `a third party'. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor." In other words, this Court clearly held that the apparently wide words "any person" are qualified by the setting in which they occur and that "any person" is to be understood as a third party. 27. 27. We think that the law laid down in Minu B. Mehta v. Balkrishna Ramchandra Nayan was accepted by the legislature while enacting the Motor Vehicles Act, 1988 by introducing Section 163-A of the Act providing for payment of compensation notwithstanding anything contained in the Act or in any other law for the time being in force that the owner of a motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be, and in a claim made under sub-section (1) of Section 163-A of the Act, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle concerned. Therefore, the victim of an accident or his dependants have an option either to proceed under Section 166 of the Act or under Section 163-A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163-A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle. 28. In Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. (P) Ltd., two of the learned Judges who constituted the Bench in Minu B. Mehta held that when a car is driven by the owner's employee on owner's business, the normal rule was that it was for the claimant for compensation to prove negligence. When the Manager of the owner while driving the car on the business of the owner took in a passenger, it would be taken that he had the authority to do so, considering his position unless otherwise shown. If due to his negligent driving an accident occurred and the passenger died, the owner would be liable for compensation. When the Manager of the owner while driving the car on the business of the owner took in a passenger, it would be taken that he had the authority to do so, considering his position unless otherwise shown. If due to his negligent driving an accident occurred and the passenger died, the owner would be liable for compensation. The Court noticed that the modern trend was to make the master liable for acts of his servant which may not fall within the expression "in the course of his employment" as formerly understood. With respect, we think that the extensions to the principle of liability have been rightly indicated in this decision". 16. The aforesaid decisions make it quite clear that the Parliament by introducing Section 163-A in the MVA provided for payment of compensation on structured formula basis by mandating that the owner of a motor vehicle or the authorised insurer would be liable to pay compensation, as indicated in the Second Schedule in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, to the legal heirs or the victim, as the case may be in a claim made under sub- section (1) of Section 163-A of the MVA. In order to prove a claim of this nature the claimant would not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle concerned. 9. Therefore, in view of observations made by Apex Court in aforesaid reported decisions where subsequent to decision in case of Swarana Singh has been taken into account by Apex Court, therefore, according to my opinion, scope of Section 163A has been considered being an overriding effect in respect to other statutory provisions of MV Act. 10. In view of these observations, view taken by this Court in a decision in case of Ruksanaben (supra), it has been rightly considered by claims Tribunal. For that, according to my opinion, claims Tribunal has not committed any error which requires interference. 11. Apart from this legal aspect of matter, even on two occasions in Para.4 and 10, a specific admission is made by advocate Mr.Soni of Insurance Co. For that, according to my opinion, claims Tribunal has not committed any error which requires interference. 11. Apart from this legal aspect of matter, even on two occasions in Para.4 and 10, a specific admission is made by advocate Mr.Soni of Insurance Co. that in absence of cogent evidence of income of deceased, notional income is to be considered and on that basis, compensation is to be awarded. According to my opinion, this being not an alternative submission but, it is a clear admission of advocate for giving compensation to claimant on the basis of notional income. 12. This aspect has also been recently considered by Apex Court while confirming decision of this Court in FA No.4520 of 2008 dated 16.9.2009 in case of Oriental Insurance Co. Ltd. through Authorized Officer Vs. Babubhai Shankerbhai Prajapati and others. In that matter, almost same contentions were raised by learned advocate of Insurance Co. before this Court and this Court has observed in FA No.4520 of 2008 dated 16.9.2008 in Para.6, 7 and 8, which are quoted as under : 6. It is necessary to consider the award passed by the Claims Tribunal. On behalf of the appellant Insurance Company, in both the Claim Petitions, leaned advocate Mr. A.J. Desai had appeared. The accident occurred on 23rd October 2002 and claimant received injury because of motorcycle was slipped due to all of sudden break used by driver of motorcycle. Para 3, written statement is filed by Insurance Company in both the petitions, but, a specific contention was raised against Claim Petition No.1516 of 2002, but, not raised against Claim Petition No.1515 of 2002. No contention was raised in Claim Petition No.1515 of 2002. There is a reason behind it that learned advocate Mr. Desai who has appeared before the Claims Tribunal given consent to the Claims Tribunal to pass appropriate award of compensation in favour of claimant as accident is proved, age, income which proved before the Claims Tribunal. So, according to my opinion, considering Para 6 as observed by Claims Tribunal, no doubt, there is typographical error, because, unless No.1516 of 2002 is mentioned in two occasions, but, it was a mistake in typing the number. Learned advocate Mr. So, according to my opinion, considering Para 6 as observed by Claims Tribunal, no doubt, there is typographical error, because, unless No.1516 of 2002 is mentioned in two occasions, but, it was a mistake in typing the number. Learned advocate Mr. Desai who had appeared on behalf of Insurance Company made submissions before the Claims Tribunal that if the accident is to be proved, then, an applicant of Claim Petition No.1516 of 2002 who was driving the vehicle entitled the compensation. But, in Claim Petition No.1515 of 2002 [No doubt, it has been written in Claim Petition No.1516 of 2002], age of claimant, income, expenses are proved and that facts are to be taken into account and to award compensation with interest in favour of claimant, meaning thereby that, this award is passed by the Claims Tribunal on the basis of consent given by learned advocate Mr. Desai which has been apparently found from the observations as made referred above in Para 6. On behalf of Insurance Company, no evidence was led or documentary evidence was produced but accepted the claim by the Insurance Company before the Claims Tribunal. The disability certificate produced by the claimant of 30% which was admitted by learned advocate Mr. Desai to be considered as 12% disability and accordingly, Claims Tribunal has accepted 12% disability of the claimant and compensation has been worked out on that basis. Therefore, Claims Tribunal has awarded Rs.1,46,200 which was not objected by the Insurance Company before the Claims Tribunal. In entire award, except mentioned and referred in Para 6, learned advocate Mr. Desai had not argued and not raised any other contention except giving consent to pass award in Claim Petition No.1515 of 2002 in favour of claimant. 7. It is necessary to note that Insurance Company is a statutory company having an organization business receiving the premium form the client and issuing insurance policy accepting the risk of the owner to be indemnify in case such occasion arise before deciding that whether this award is to be challenged by the company or not. Naturally, some opinion of the advocate must have to be obtained by the Insurance Company. Naturally, some opinion of the advocate must have to be obtained by the Insurance Company. On the basis of the aforesaid facts which are in black and white that how the advocate has given opinion to challenge consent award and how such opinion has been accepted by the Insurance Company to challenge such consent award before this Court. Not only that but the conduct of Insurance Company is that straightway, filing the appeal before this Court as if that Claims Tribunal has committed gross error and not appreciating the legal contention and legal background of M.V. Act and awarded compensation in favour of claimant as if that is is contrary to the M.V. Act, insurance policy and contrary to the judgments of the Hon'ble Supreme Court. But, before that, Insurance Company has not thought it fit to approach the Claims Tribunal with their advocate that whether such consent was given by learned advocate Mr. Desai or not and whether Claims Tribunal has rightly relied upon such consent of learned advocate Mr. Desai or not. 8. Therefore, according to my opinion, it suggests a mood of Insurance Company to fight out upto such a height even consent award, officer of the Insurance Company has not taken any care to find out that whether appeal can be filed or not and whether it is desirable in the interest of Insurance Company or not. The attitude and conduct of the Insurance Company suggests that looking to the contention raised in appeal knowing fully well by the lawyer that no such contention was raised by learned advocate Mr. Desai before the Claims Tribunal, even though, argument has been advanced before this Court by forgetting that appellant is not entitled to raise any contention first time as a matter of right and relied upon the number of authorities which are referred above as if that they are entitled to raise before this Court irrespective of the fact that same objections were not raised before the Claims Tribunal. The meaning is that Insurance Company is not duty bound to raise such contention before the Claims Tribunal. If any legal contention is available, they can raise only in the High Court in appeal and it is not necessary to be raised before the Claims Tribunal. I failed to understand such kind of approach of Insurance Company as to whether such approach is intentional or not. If any legal contention is available, they can raise only in the High Court in appeal and it is not necessary to be raised before the Claims Tribunal. I failed to understand such kind of approach of Insurance Company as to whether such approach is intentional or not. But, every organized unit shall know his limit and responsibility in the Court of law. Without any worry or without having any difficulty and without even any explanation that why such contention was not raised by the advocate of the Insurance Company before the Claims Tribunal, even without such explanation, straightway, matter has been argued before this court as if that Hon'ble Supreme Court has decided it that owner is not entitled, not covered the risk in Insurance Policy. In case of injury, 50%, 100% a limit of Rs.1 lakh, but, less than injury, Rs.12,000/- is available as if that insurance policy has been issued to the owner by the Insurance Company as if that they are giving some a special benefit or obliging the owner accepting the risk. The owner who requested the Insurance Company that I want an insurance of the vehicle. They suggest the premium and accordingly, premium was paid. Normally, Insurance Company and their agent and their officers are not giving clear details to the persons those who are intended to take insurance that such type of premium will not clear the complete risk, otherwise, the owner who is prepared to pay the premium and obtained the insurance policy may not have any objection to pay some more amount to the Insurance Company. These are the difficulties to be remained because of not properly giving understanding to the owner or person who has obtained the insurance. These are the hard reality and nobody can ignored it and then, to raise all kind of contentions when compensation is to be paid by Insurance Company raising legal and technical contentions to avoid responsibility of paying compensation to the claimant/victim. 13. Aforesaid judgment delivered by this Court has been challenged before Apex Court by appellant Insurance Co. These are the hard reality and nobody can ignored it and then, to raise all kind of contentions when compensation is to be paid by Insurance Company raising legal and technical contentions to avoid responsibility of paying compensation to the claimant/victim. 13. Aforesaid judgment delivered by this Court has been challenged before Apex Court by appellant Insurance Co. in SLP (C) No.6817 of 2009 which came to be decided by Apex Court on 2.4.2009 where following order is passed by the Apex Court, which is quoted as under : In view of the fact that the award has been made on the basis of a concession made by the counsel for the petitioner company, we are of the opinion that no appeal was maintainable thereagainst in terms of sub-section (3) of Section 96 of the Code of Civil Procedure. The Special Leave Petition is dismissed. 14. In view of order passed by Apex Court as referred above, Apex Court has held that when consent is given by advocate of Insurance Co., appeal itself is not maintainable under Section 96(3) of Code of Civil Procedure. 15. In view of aforesaid decision of Apex Court and after considering contentions raised by learned advocate Mr.Nanavati, according to my opinion, claims Tribunal has rightly examined matter after considering complaint Mark 29/1 and Mark 29/2 which is a Panchnama and come to conclusion that both drivers of the vehicles are responsible for said accident and considering notional income as per submission made by advocate of Insurance Co. and age of deceased as 32 years as per second schedule, multiplier of 17 has been applied and on that basis, after deducting 1/3rd amount, it comes to Rs.1,70,000/- and funeral expenses at Rs.2000/-, loss of estate at Rs.2500/-, total comes to Rs.1,74,000/- which has been awarded with 9% interest in favour of respondents claimants. Therefore, claims Tribunal has rightly considered claim petition under Section 163A of MV Act and also rightly calculated amount of compensation on the basis of second schedule. For that, according to my opinion, claims Tribunal has not committed any error which requires interference by this Court. The claims Tribunal has awarded reasonable amount and it cannot considered to be arbitrary or on higher side. Therefore, contentions raised by learned advocate Mr.Vibhuti Nanavati cannot be accepted and same are rejected. Therefore, there is no substance in present appeal. Accordingly, present appeal is dismissed. 16. The claims Tribunal has awarded reasonable amount and it cannot considered to be arbitrary or on higher side. Therefore, contentions raised by learned advocate Mr.Vibhuti Nanavati cannot be accepted and same are rejected. Therefore, there is no substance in present appeal. Accordingly, present appeal is dismissed. 16. Today, this Court has disposed of first appeal and, therefore, no order is required to be made on civil application for stay, therefore, civil application for stay is disposed of accordingly. 17. Amount, if any, deposited by appellant in the Registry of this Court be transmitted to claims tribunal concerned immediately.