1. This is an appeal under section 173 of the Motor Vehicles Act, 1988 by the claimant against the judgment and order dated 5.7.2007 as passed by the Motor Accident Claims Tribunal No. 2, Kamrup, Guwahati in MAC Case No. 31 of 2006. 2. The findings as returned by the Tribunal as regards the death of Ashananda Mandal on 20.7.2005 while in the course of his employment he was doing some repairing work of the vehicle No. ML-09-2608 (Truck) and for sudden failure of the jack the deceased received the fatal injuries leaving the claimants as his dependants are not in dispute by either of the parties or in the appeal. As such those findings stand affirmed requiring no further appraisal. 3. The question that has been projected in the appeal emanates from the finding of the Tribunal where it has been observed as under : The PW1 nowhere pleaded or deposed that the accident had taken place due to the rash and negligent driving of the offending vehicle by its driver and the claim has suffered from the basic requirement of section 166 of the Motor Vehicles Act, 1988 which resulted in the dismissal of the claim." 4. Mr. S.K. Goswami, learned counsel appearing for the appellant quite succinctly submitted that the accident arising out of the motor vehicle cannot disputed by any one. He referred a decision of this court in Motor Workers Co-Opp. Society Ltd. v. New India Assurance Co. Ltd., 1999 (3) GLT 176 where it has held by this court as under : "5. The policy indicated in the aforesaid case covers the cases for compensation in motor vehicle accidents. The word "use of a motor vehicle" coves accidents which occur both when the vehicle-in-qucstion is on motion as also when it is stationary. Here in the instant case, the bomb exploded inside the bus when it was standing/stationary and therefore, the accident had arisen out of this use of the vchicle-in-question. That apart, when the accident took place on 10.2.1989, the Bongaigaon district was not declared as a terrorist affected area and the vehicle was duly covered by the Insurance Policy, without any default on that part of the owner in payment of the insurance premium; nor had the insurance lapsed during the relevant period of time. That apart, when the accident took place on 10.2.1989, the Bongaigaon district was not declared as a terrorist affected area and the vehicle was duly covered by the Insurance Policy, without any default on that part of the owner in payment of the insurance premium; nor had the insurance lapsed during the relevant period of time. The Insurance Company in the circumstances cannot avoid its liability of payment of compensation." In this case, the insurance coverage of the vehicle by the respondent No. 1, the Unitod India Insurance Co. Ltd. is also not in dispute. 5. Mr. M. Dutta, learned counsel appearing for the respondent No. 1 submitted quite strenuously that unless there is proof of negligence which remains sine qua non for grant of compensation under section 166 of the Motor Vehicles Act, 1988 no award can be made by the Tribunal by way of granting compensation. He referred a decision of this court in United India Insurance Co. Ltd. v. H. Laihmingliana and Anr., 2006 (2) GLT 538 where this court held as under : "(34) Setting at rest the controversy as to whether section 163A would cover the cases, wherein negligence of the victim was the cause of the accident, the Apex Court in Deepal Girishbhai Sani and Ors. v. United India Insurance Co. Ltd., (2004) 5 SCC 385 , observed thus. We may notice that section 167 of the act provides that where death of, or bodily injury to, any person gives rise to claim of compensation under the Act and also under the Workmen's Compensation act, 1923, he cannot claim compensation under both the Acts. The Motor Vehicles Act contains different expressions as, for example. "under the provision of the Act", "provisions of this Act", "under any other provisions of this Act" or "any other law or otherwise". In section 163A, the expression "notwithstanding anything contained in this Act or in any other law for the time being in force" has been used, which goes to show that Parliament intended to insert a non-obstante clause of wide nature which would mean that the provisions of section 163A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163A of the Act covers cases where even negligence is on the part of the victim. Section 163A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to section 166 and the concept of social justice has been duly taken care of." (35) In the face of the position of law, so clearly pronounced by the Apex Court in Deepal Girishbhai Soni (supra), there can be no escape from the conclusion that it is permissible even for a driver, whose own wrongful act, neglect or default might have formed the cause of the accident resulting into his own injuries, to maintain an application for compensation under section 163A. Considered thus, it is clear that in the present case, the application made under section 163A of the Act could not have been rejected merely on the ground that it was the claimant, whose negligence, as a driver, had caused the said accident." 6. Mr. Dutta further stressed on the observation as under : "(36) Now, turning to the question as to whether, a proceeding under section 166 can be converted into a proceeding under section 163A of the MV Act, 1988 ('the MV Act'), and compensation can be awarded on the basis of the provisions of section 163A, it is of paramount importance to note that the claimant instituted a proceeding under section 166 of the MV Act. For sustaining a claim under section 166 of the MV Act, the claimant has to establish that the accident, in question, took place due to rash and negligent driving of the vehicle, whose owner and insurer is liable to pay the compensation, for, an application for compensation under section 166 is, basically, an application for compensation against tortuous liability of the owner of the vehicle involved in the accident. For establishing tortuous liability, negligence on the part of the owner of the vehicle, in question, must be established unless the law enacted, in this regard, provides otherwise. By incorporating provisions, such as, section 140 and 163A, the Legislature has absolved a claimant from proving, if he chooses, fault on the part of the driver of the vehicle or any rashness or negligence in the use of the vehicle at a public place. By incorporating provisions, such as, section 140 and 163A, the Legislature has absolved a claimant from proving, if he chooses, fault on the part of the driver of the vehicle or any rashness or negligence in the use of the vehicle at a public place. (37) As against the proof of the fault, which the nature of a claim proceeding initiated under section 166 demands, when a claim under section 163A is made, the claimant need not prove fault on the part of the driver of the vehicle. This is the basic difference between an application made under section 166 and an application filed under section 163A. This apart, the application under section 140, which relates to tho realization of a fixed amount of money as compensation without proof of fault, can be resorted to, as an interim arrangement, when an application for compensation is made under section 166 and not when an application is made under section 163A of the MV Act, for, the amount paid under section 140 merges with the award finally given by a Tribunal under section 168 of the MV Act arising out of an application made under section 166 thereof. This is clean from the provisions of section 163 B, which lays down, in no uncertain words, that where a person is entitled to claim compensation under sections 140 and 163A, it shall file claim under cither of the said section and not under both." 7. This court has further observed in Bina Prasad Sonari v. Manager United India Insurance Co. Ltd. and Ors., 2005 (25) AIC 849 Gau. Observed and held as follows : "an application for compensation can be made either under section 166 or under section 163A of the said Act. If the application is under section 163A, the question of proving the negligence on the part of the driver of the offending vehicle does not arise at all; rather, in a case, wherein compensation is claimed under section 163A, on proof of the accident, age of the deceased, the income of the deceased and the relationship of the claimant with the deceased, the structured formulae, contained in the Second Schedule framed under section 163A, would be applied. However, when the claim application is made (as is the case at hand) under section 166, the claimant has to prove negligence on the part of driver of the offending vehicle and only on such a proof being made available to the Tribunal, the Tribunal can determine the amount payable to the claimant as compensation and for determining the amount of compensation, the structured formulae may be used as the guide. For applications made under section 166, the provisions for payment of no-fault liability amount has been made under section 140 of the said Act. Section 140 is, thus, applicable only if the compensation is claimed under section 166. That no-fault liability amount cannot be made available to an applicant under section 163A is clear from the provisions of section 163b inasmuch as section 163b gives every claimant the option to either make an application under section 140 for no-fault liability amount pending determination of the compensation claimed under section 166 or lodge a claim for determination of compensation, as a whole, under section 163A, by using the structured formulae contained in the Second Schedule. Thus, the question of applying for payment of no-fault liability amount under section 140 does not arise at all if the claim application is under section 163A." 8. This court in H. Lalhmingliana (supra) has further observed as under: "(39) We completely agree with the position of law laid down in Bina Prasad Sonari (supra). (40) We may pause here to point out, once again, that no provision, such as, the one that we have, now, in the form of section 163A, existed in the Motor Vehicles Act, 1939, which preceded the enactment of the Motor vehicles Act, 1988. Such a provision did not also exist in the Motor Vehicles Act, 1988, when this Act came into force. Such a provision did not also exist in the Motor Vehicles Act, 1988, when this Act came into force. As a matter of fact, section 163A has been introduced by the amendment Act No. 54 of 1994 with effect from 14.11.1994 as against the fixed minimum interim compensation awardable under section 140 of the MV Act on the principle of no-fault, which merges in the final award to be made on the basis of 'fault liability' in accordance with section 141, section 163A allows a victim of a motor vehicular accident to obtain a final award of compensation based on the structured formula contained in the 2nd schedule to the Act and such compensation may be obtained without the claimant being required to plead or establish that the injuries sustained or death caused was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other persons. The compensation finally payable under section 163A is materially different from the minimum prescribed compensation payable under section 140, though both these provisions dispense with the proof of negligence on the part of the owner of the vehicle or vehicles concerned or of any other persons. In short, proof of negligence is not necessary for availing compensation either under section 140 or 163A. (41) The present MV Act provides an option to the claimant to obtain interim compensation under section 140 being the minimum prescribed compensation until final adjudication of his claim, under section 166, leading to the delivery of the award in which would get merged the interim compensation, if any, already received by the claimant under section 140. The other course, which the claimant can opt for, is to obtain a final award of compensation on the basis of structured formula as depicted in the 2nd Schedule under section 163A. The provisions embodied in section 166 as well as under section 163A have both advantages as well as disadvantages appended thereto. For instance, while section 166 requires proof of fault as a condition precedent for granting of compensation, there is no ceiling in the amount of compensation, which can be granted under section 166, and, further. Section 166 can be resorted to irrespective of the income of the person, who has sustained injuries or met with death. For instance, while section 166 requires proof of fault as a condition precedent for granting of compensation, there is no ceiling in the amount of compensation, which can be granted under section 166, and, further. Section 166 can be resorted to irrespective of the income of the person, who has sustained injuries or met with death. As against this, while section 163A dispenses with the proof of fault, this Section, (i.e., section 163A) can be resorted to only when the annual income of the deceased does not exceed Rs. 40.000. Similarly, while in section 166, as already indicated hercinabove, there is no limit to which expenses for treatment incurred by the injured can be awarded, the total medical expenses to be awarded cannot, in a proceeding under section 163A, exceed Rs. 15.000. There are several other such limitations if one takes recourse to section 163A for obtaining compensation. For instance, the loss of consortium-under section 163A is limited to Rs. 5.000, whereas, in the light of the decision in Lata Wadha and Ors. v. State of Bihar and Ors., (2001) 8 SCC 197 , the consortium can be, in an appropriate case, as high as Rs. 50,000. Yet another advantage of taking recourse to section 163A is that it reduces the delay, which, ordinarily, occurs due to the fact that the claimant is required to prove fault. Noticing some of these prominently distinguishing features of section 163A, the Apex Court in Deepal Girishbhai soni and Ors. v. United India Insurance Co. Ltd., (2004) 5 SCC 385 , observed as follows : "Section 140 of the Act dealt with interim compensation but by inserting section 163A, the Parliament intended to provide for making of an award consisting of a pre-determined sum without insisting on a long-drawn trial or without proof of negligence in causing the accident the Amendment was, thus, a deviation from the common law liability under the Law of Torts and was also in derogation of the provisions of the Fatal Accidents Act. The Act and the Rules framed by the State in no uncertain terms suggest that a new device was sought to be evolved so as to grant a qujck and efficacious relief to the victims falling within the specified category. The Act and the Rules framed by the State in no uncertain terms suggest that a new device was sought to be evolved so as to grant a qujck and efficacious relief to the victims falling within the specified category. The heirs of the deceased or the victims in terms of the said provisions were assured of a speedy and effective remedy which was not available to the claimants under section 166 of the Act chapter XI was, thus, enacted for grant of immediate relief to a section of people whose annual income is not more than Rs. 40,000 having regard to the fact that in terms of section 163Aof 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 therefore. 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. *** *** *** Payment of the amount in terms of section 140 of the Act is ad hoc in nature. A claim made thereunder, as has been noticed hereinbefore, is in addition to any other claim which may be made under any other law for the time being in force. Section 163A of the Act does not contain any such provision. *** *** *** if no amount is payable under the fault liability or the compensation which maybe received from any other law, no refund of the amount received by the claimant under section 140 is postulated in the Scheme. Section 163A, on the other hand, nowhere provides that the payment of compensation of no-fault liability in terms of the structured formula is in addition to the liability to pay compensation in accordance with the right to get compensation on the principle of fault liability". Section 163A, on the other hand, nowhere provides that the payment of compensation of no-fault liability in terms of the structured formula is in addition to the liability to pay compensation in accordance with the right to get compensation on the principle of fault liability". (42) That one is required to prove fault to become entitled to receive compensation under section 166 and that the recourse to section 140 can be had as an interim arrangement subject to final determination can be easily discerned from the observations made in Deepal Girishbhui Soni (supra), which runs as follows : "[T]he Scheme envisaged under section 163A, in our opinion, leaves no manner of doubt that by reason thereof the rights and obligations of the parties are to be determined finally. The amount of compensation payable under the aforementioned provisions is not to be altered or varied in any other proceedings. It does not contain any provision providing for set off against a higher compensation unlike section 140. In terms of the said provision, a distinct and specified class of citizens, namely, persons whose income per annum is Rs. 40,000 or less is covered thereunder; whereas sections 140 and 166 cater to all sections of society................. it may be true that section 163B provides for an option to a claimant to either go for a claim under section 140 or section 163A of the act, as the case may be, but the same was inserted 'ex-abundanti cautela' so as to remove any misconception in the mind of the parties to the lis having regard to the fact that both relate to the claim on the basis of no-fault liability. Having regard to the fact that section 166 of the Act provides for a complete machinery for laying a claim on fault liability, the question of giving an option to the claimant to pursue their claims either under section 163A or section 166 does not arise. If the submission of the learned counsel is accepted the same would lead to an incongruity." (43) From what have been pointed out above, it becomes abundantly clear that the present MV Act lays down two comprehensive and independent, but complete in itself, mechanism for receiving compensation for injuries sustained or death caused in motor vehicular accidents. If the submission of the learned counsel is accepted the same would lead to an incongruity." (43) From what have been pointed out above, it becomes abundantly clear that the present MV Act lays down two comprehensive and independent, but complete in itself, mechanism for receiving compensation for injuries sustained or death caused in motor vehicular accidents. Both the schemes for compensation, one conceived under section 166 and the other perceived by section 163A, are mutually exclusive and independent of each other and it is for a person, who wants to claim compensation, to decide as to which procedure or mechanism he or she would opt for. (44) In the face of clearly laid down schemes for obtaining compensation under the two sections, namely. Section 166 and section 163Aand when it is left with the claimant to choose the course of action, no one can maintain a claim both under section 166 as well as section 163A. The MV Act also does not conceive of a situation, when, based on an application made under section 166, the Tribunal, on its own, on the failure of the claimant to prove fault, can award compensation by taking recourse to section 163A. When a claimant makes an application for compensation under section 166 and also receives interim compensation under section 140, he shall, so long as his application for compensation remains pending under section 166, prove, as a condition precedent for succeeding in obtaining compensation under section 166, that the accident took place due to fault or negligent or default of the owner or owners of the vehicle or vehicles concerned or of any other persons. (45) The above aspect of law has been succinctly explained by the Apex Court, inDeepal Girishbhai Soni (supra), in the following words : "the question may be considered from different angles. As for example, if in the proceedings under section 166 of the Act, after obtaining compensation under section 163A, the awardee fails to prove that the accident took place owing to negligence on the part of the driver or if it is found as of fact that the deceased or the victim himself was responsible, therefore, as a consequence whereto the Tribunal refuses to grant any compensation; would it be within its jurisdiction to direct refund either in whole or in part the amount of compensation already paid on the basis of structured formula? Furthermore, if in a case the Tribunal upon considering the relevant materials comes to the conclusion that no case has been made out for awarding the compensation under section 166 of the Act, would it be at liberty to award compensation in terms of section 163A thereof. The answer to both the aforementioned questions must be rendered in the negative. In other words, the question of adjustment or refund will invariably arise in the event if it is held that the amount of compensation paid in the proceedings under section 163A of the Act is interim in nature." (46) Embedded, thus, in the scheme of section 166 is the requirement for the Tribunal to frame an issue or for the claimant to, at least, bring on record materials as regards fault or neglect or default, as indicated hereinbefore, in order to sustain his claim under section 166. If in a proceeding under section 166, the claimant obtains interim compensation under section 140, but adduces no evidence to prove fault or negligence or default, his application under section 166 cannot succeed and the Tribunal cannot award compensation on the basis of the structured formula by taking recourse to section 163A, for, it is for the claimant really to decide which course of action he or she shall opt for. Whether it is, on the basis of an application for amendment made by the claimant, permissible to amend a proceeding under section 166, to one under section 163A is a question, which has not arisen in the present appeal and we are not inclined to make any comment on this aspect of the matter. (47) Now, turning to the question as to whether it is permissible for a Tribunal to allow a claimant to amend his application from the one made under section 166 to an application under section 163A, what needs to be noted is that the foundation for making an application in both the proceedings are fundamentally different, for, while in an application under section 166, fault on the part of the driver of the vehicle involved in the accident must be proved, the proof of such fault is dispensed with, when an application is made under section 163A. Thus, as already indicated hereinabove, the Legislature has provided a claimant with two different schemes for claiming compensation. Thus, as already indicated hereinabove, the Legislature has provided a claimant with two different schemes for claiming compensation. While the accident itself gives cause of action for relaxation of compensation under section 163A, the cause of action for sustaining a claim under section 166 is not merely the accident, but a tortitious act of failing to take care, which the owner or the driver of the vehicle owes to the injured or the deceased as the case may be..However, in either case the foundation for the claim is the accident, for, even in a claim made under section 166, the accident forms an integral and inseverable part of the cause of action. This apart, the MV Act is a benevolent legislation and, hence, this enactment needs to be liberally construed. Construed, thus, it is abundantly clear that the cause of action in both the proceedings, namely, the proceeding under sections 166 and 163A are not wholly alien to each other inasmuch as at the root of both the claims lies the accident. Whether in a given case the court shall permit the amendment of a proceeding under section 166 to one under section 163A is a question, which would depend on the facts of the given case, for, there may be case where the injured or the deceased does not fall in the limited income group of Rs. 40,000 per annum, if a claimant does not fall in the income group of persons for whom the provisions of section 163A are incorporated, the tribunal may decline to allow the amendment of the proceeding under section 166 to one under section 163A." 9. On the basis of that Mr. Dutta, learned counsel appearing for the respondent No. 1 submits that the categorical case of the claimants as would be available from the deposition as filed by way of affidavit is as under: "That I Sri Biswanath Mandal and my wife Smt. Akadashi Mandal being the Father and Mother of Late Ashananda Mandal claimed compensation for the death our son in a vehicular accident on 20.7.2005 at about 9.00 a.m. when my son was working under the vehicle No. ML-09/2608 as a handyman near Maa Kamakhya Garage, Dudhnoi. Instantly Jack fitted on the front wheel of the truck fell down on his head and died on the spot. Instantly Jack fitted on the front wheel of the truck fell down on his head and died on the spot. Post mortem was conducted at Goalpara Civil Hospital and dead body was handed over to us for last rites. He was 22 years of age at the time of death and was unmarried. He use to earn Rs. 2,500 per month, He was working as handiman of the truck belongs to Md. Hasim Ahmed, He being the eldest son he use to look after us and my other children. Due to the sudden death one of the earning member of the family is facing great economic hardship as I have no regular source of income. I have claimed Rs. 8,00,000 as compensation." 10. From the readings of the claim petition as well as deposition of the claimant-appellant namely Biswanath Mandal it is apparent that nowhere the rash and negligent driving as the cause of the accident has been pleaded and no attempt was made to prove the rash and negligent driving. Mere writing on the body of the petition that the said petition under section 166 of the Motor Vehicle Act shall not always provide the basis for claim under section 166 of the Motor Vehicles Act. The Tribunal has also certain duty under section 168 of the Motor Vehicle Act to ascertain whether the claim petition as filed under section 166 of the MVAct is actually a petition under section 166 of the MV Act or not. The scheme of the MVAct, 1988 is to protect the interest of the accident victims not to frustrate the claims by adopting a hyper technical approach. This petition is required to be treated as a petition filed under section 163A of the Motor Vehicles Act. This court in exercise of its power as provided under order VI, rule 17 of the CPC read with section 151, CPC and section 168 of the Motor Vehicles Act has converted this petition under section 163A of the MV Act as the said provisions as extracted provide that the court may at any stage of the proceeding amend the petition and such amendment has to be made on such term as may be just and all such amendments shall be carried out as may be necessary for purpose of determining the real questions in controversy. For purpose of determining the real questions in the controversy, the claim petition having been treated as a petition filed under section 163Aof the Motor Vehicles Act, 1988, the findings of the tribunal cannot be allowed to stay, any further. Thus the impugned judgment and order is set aside. It has been claimed that the deceased used to earn Rs. 2,500 per month as the workman of the vehicle involved in the accident. Considering the relevant wage pattern at the relevant point of time as well as the Ext. 3 document, the actual monthly income of the deceased is assessed at Rs. 2,000. The father of the deceased has stated in the court that his son was aged about 22 years at the time of the accident, even though in the post mortem report (the Ext. 2 document) the age of the deceased has been shown as 19 years. In this context, the statement of the father is of much relevance and as such, age of the deceased is taken as 22 years. Since the deceased was a bachelor and parents are the claimants, for that reason, for selecting the multiplier, age of the deceased would have no relevance but of the parents. It appears from the statement that the claimant No. 1 namely Biswanath Mandal was aged about 48 years. Since the age of the mother is not available the multiplier has to be chosen on the basis of the age of the father. The appropriate multiplier as such would be 13'. Now, the loss of earning can be-assessed in the following terms : The annual income of the deceased in view of the monthly income as assessed at Rs. 2,000 is Rs. 24,000 50% of the said annual income has to be deducted. Thus after deduction the same comes to Rs. 12,000. The loss of dependency accordingly arrived at Rs. 12,000 x 13 = Rs. 1,56,000. With the said sum Rs. 5,000 for funeral expenses and Rs. 10,000 for loss of estate be added. Thus, total compensation comes to Rs. 1,71,000. The said amount shall carry interest @ 6% per annum from the date of filing of the claim petition till the payment is made. The respondent No. 1, the United India Insurance Co. Ltd. shall pay the awarded sum with interest within a period of two months from today in the Tribunal. 11. Thus, total compensation comes to Rs. 1,71,000. The said amount shall carry interest @ 6% per annum from the date of filing of the claim petition till the payment is made. The respondent No. 1, the United India Insurance Co. Ltd. shall pay the awarded sum with interest within a period of two months from today in the Tribunal. 11. For the reasons as discussed above, this appeal stands allowed to the extent as indicated above. However, there shall not be any order as to costs. 13. LCRs be sent down forthwith. Rohit Limboo (youngest son) and respondent No. 5 and her daughter, Seema Limboo, in equal share. The petitioner No. 1 being duly appointed as guardian of minor petitioners can receive the amount of pension on behalf of them. The respondent No. 5 being the mother and natural guardian of heir minor daughter shall receive the share of family pension for herself and on behalf of her minor daughter. Petitioner nos. 2 and 3, youngest son deceased (Rohit Limboo) and respondent No. 5 and her daughter, Limbo, each are entitled to get equal share, i.e., 1/5 (one fifth) share each. 11. This writ petition is accordingly disposed of. No cost.