Judgment : This appeal is filed by respondent no. 5, in Claim Petition No.33/2001, against the judgment and award dated 02/05/2005 passed by the Motor Accident Claims Tribunal at Mapusa (Claims Tribunal) in the said Claim Petition. 2. The respondents no. 1 and 2 are the Claimants No. 1-a and 2. The original Claimant No. 1 died during the pendency of the Claim Petition and the Claimant No. 1-a came on record as legal representative of the deceased Claimant No. 1. The respondent no. 3 is the respondent no. 2 in the Claim Petition. The respondents No. 4, 5 and 6 are respectively the respondents No. 1, 3 and 4 of the Claim Petition. The parties shall be referred to in the manner in which they appear in the cause title of the said Claim Petition No.33/2001. 3. The case of the claimants was as follows : On 9/1/2001, the deceased was a pillion rider on the scooter bearing registration No. GA-01/V-5463 which was driven by Pradeep Dattu Gaonkar and they were proceeding from Bicholim to Assonora and when they reached near Taleshwar Temple, Mulgaon at about 20.20 hours, a Maruti Car bearing No. GA-01/J-5522, coming from opposite direction, owned and driven by the respondent No. 1 at a fast speed, and in a rash and negligent manner, dashed against the said scooter, as a result of which, the deceased sustained fatal injuries. It was alleged that the deceased (son of the deceased Claimant No. 1 and of Claimant No. 2) was working for Goa Bagayatdar Society Ltd., Ponda and earning a monthly salary of Rs. 3397/-. A total amount of Rs.5,95,000/- was claimed from respondents no. 1 and 2 as owner and insurer of the Maruti Car. 4. Respondent no.1, the owner and driver of the Maruti Car, opposed the petition and alleged that he was proceeding from Bicholim to Assonora in his own Maruti Zen Car bearing No. GA-01/J 5522 in a normal speed and the scooter came from opposite direction, lost the control and gave dash to the Car. 5. Respondent no. 2, the insurer of the said Maruti Car, had also opposed the Claim and had further alleged that the petition is liable to be dismissed on the ground of nonjoinder of necessary parties that is the driver, owner and insurer of the scooter. 6. Thereafter, the Claim petition was amended. 5. Respondent no. 2, the insurer of the said Maruti Car, had also opposed the Claim and had further alleged that the petition is liable to be dismissed on the ground of nonjoinder of necessary parties that is the driver, owner and insurer of the scooter. 6. Thereafter, the Claim petition was amended. Since the original Claimant No. 1 i. e. the father of the deceased pillion rider of the scooter had expired, his daughter came on record as his legal representative. The owner, rider and insurer of the scooter were added as respondents no. 3, 4 and 5. 7. The respondent No 5, the insurer of the scooter, filed its written statement thereby denying its liability. 8. An application under section 140 of the M. V. Act which was also filed by the Claimants along with the Claim Petition was allowed by the Claims Tribunal by Order dated 21/8/2003. The Claimants have received the said amount on 21/02/2004. 9. Subsequently, an application dated 8/10/2004 to amend the petition in order to bring their claim under Section 163-A of the M. V. Act instead of Section 166 of the of M. V. Act was filed by the claimants thereby restricting the income of the deceased to Rs.40,000/- per year. This application was opposed by respondents. However, by order dated 30/11/2004, the learned Claims Tribunal allowed the said application. Therefore, the Claim Petition, which was originally filed under Section 166 of the M. V. Act got converted into an application under Section 163-A of the M.V. Act. 10. Respondent no. 4, the owner of the scooter, filed his written statement denying the claim of the claimants. The respondents No. 1, 2 and 5 also filed additional written statements. The said respondents, inter alia claimed that the Claimants are not entitled to change their Claim from section 166 to section 163-A of the M. V. Act. 11. The claimant No. 2 examined herself as AW1, Shri Giridhar Potibhaskar, the Branch Manager of Goa Bagayatdar K. V. Society Ltd. at Ponda as AW2, Head Constable Shri Raghuvir Gawandi as AW3 and Shri Ashok Naik, one of the panch witnesses to the panchanama of scene of accident/ sketch as AW4. Respondent no.1, Shri Damodar Prabhu examined himself as RW1 and respondent no. 4 Shri Baburao Kerkar examined himself as RW2. 12. Respondent no.1, Shri Damodar Prabhu examined himself as RW1 and respondent no. 4 Shri Baburao Kerkar examined himself as RW2. 12. Learned Claims Tribunal held that though the claimants have already received compensation under Section 140 of the M. V. Act, however, still the petition is maintainable under Section 163-A of the M. V. Act. The Claims Tribunal further held that the evidence of AW1 and AW2 read with the salary certificate at exhibit 49 duly proves that the monthly salary of the deceased was Rs. 3,400/-. The learned Claims Tribunal, however, restricted the said income of the deceased to Rs.40,000/- per year. 1/3rd of the income has been deducted towards personal expenses and considering the age of the deceased as 33 years vis-a-vis that of the claimants, the compensation has been worked out at Rs.3,99,980/- and further compensation of Rs.2,000/- towards funeral expenses and Rs. 2,500/- towards loss of estate has been awarded. The total compensation awarded to the claimants is Rs. 4,05,000/-. The respondents no. 1 and 2 on one side and the respondents no. 4 and 5 on the other side have been held to be jointly and severally liable to pay the compensation along with interest at the rate of 9% per annum from the date of the application till payment. The amount already paid under section 140 of the M. V. Act has been ordered to be adjusted against the final compensation awarded. 13. The claimantsand the respondent No. 2 (United India Insurance Co. Ltd.) have accepted the Award and the respondent No. 2 has already paid the amount of Rs.2,46,066/-, which has been received by the Claimants. 14. Respondent no.5 is aggrieved by the impugned judgment and award and has filed this appeal. 15. The limited point that arises in the appeal is whether the application under Section 163-A of the M. V. Act, which was originally under Section 166 of the M.V. Act, is maintainable. 16. ShriM. S. Joshi, learned Advocate, argued on behalf of respondent no. 5, whereas Shri Valmiki Menezes, learned Advocate, argued on behalf of respondent no.4, Shri Baburao Kerkar. The other parties chose to remain absent. 17. Relying upon “Deepal Girishbhai Soni and Ors. Vs. United India Insurance Co. 16. ShriM. S. Joshi, learned Advocate, argued on behalf of respondent no. 5, whereas Shri Valmiki Menezes, learned Advocate, argued on behalf of respondent no.4, Shri Baburao Kerkar. The other parties chose to remain absent. 17. Relying upon “Deepal Girishbhai Soni and Ors. Vs. United India Insurance Co. Ltd. Baroda” [2004(5) ALL M. R. (S.C.) 674], Shri M. S. Joshi, learned counsel for the respondent No. 5, argued that the compensation under Section 163-A of the M.V. Act is available only to those whose annual income is upto Rs.40,000/- and any other claims are required to be decided in terms of Chapter XII of the M.V. Act. Learned Counsel pointed out that though by way of amendment, the claimants had restricted the annual income of the deceased to Rs.40,000/- per year, however, the evidence of AW1 as well as AW2 read with the Salary Certificate at exhibit 49 duly proves that the monthly income of the deceased was Rs.3,400/- which means that the annual income was Rs.40,800/- which is more than Rs.40,000/-. He further argued that the learned Claims Tribunal had no right to restrict the said annual income of the claimant to Rs.40,000/-and allow the Claim Petition. He has also relied upon “Dr. Jawaharlal Mannalal Bagadiya Vs. Maharashtra State Road Transport Corporation and another” [2008 (6) AllMR 346]. In this case the claim petition filed under Section 166 of the M.V. Act was decided against the claimants. The claimants sought conversion of his petition to one under Section 163-A of the M.V. Act. However it was found that the monthly income of the claimant was Rs.5,000/- per month. It was, therefore, held that the claimant would be disentitled from claiming the compensation under Section 163-A of the Act. Learned Shri Joshi, then, read out the provision of Section 163-B of the M. V. Act which provides for an option to file claim in certain cases. It says that where the person is entitled to claim compensation under Section 140 and 163-A, he shall file the claim under either of the sections and not under both. The learned Counsel further pointed out that in the present case, the claimants had filed an application under Section 140 of the M.V. Act and they have already been paid the compensation under that provision. The learned Counsel further pointed out that in the present case, the claimants had filed an application under Section 140 of the M.V. Act and they have already been paid the compensation under that provision. Therefore, according to Shri Joshi, the petition could not have been converted to the one under Section 163-A of the M. V. Act. He therefore urged that the impugned judgment and award be set aside and the matter be remanded to the trial judge to decide the same afresh as if the same is under section 166 of the M. V. Act. He has also relied upon “New India Assurance Co. Ltd. Vs Ashabai Kalyan Kothi & Ors.” [ 2008(6) Bom.C.R. 89 ]. 18. Shri V. Menezes has adopted the arguments advanced by Shri M. S. Joshi. 19. I have gone through the entire record and proceedings. 20. The learned Claims Tribunal has held that though the claimants have received the compensation under Section 140 of the M.V. Act, however, still the petition under Section 163-A is maintainable and for this, she has relied upon the following judgments : (i) “National Insurance Company Ltd. Vs. Mukeshbhai Bhalchandrabhai Jani,” [II (2004) A.C.C. 310 (DB) ]; (ii) “Oriental Insurance Company Ltd. vs. Hansrajbhai V. Kodala and Ors.”, [I (2001)ACC 618 (SC)]. (iii) “Guruanna Vadi and another Vs. General Manager”, [2001 (4) Civil L. J. 212]”. (iv) “Oriental Insurance Co. Ltd. Vs. Ghulam Mohammad”, [2003 (2) T.A.C. 662 (J & K)]. (v) “Delhi Transport Corporation and another Vs. Nirmala and others,” [2003 (2) T.A.C. 95]. 21. In the case of “Mukeshbhai” (supra), a division bench of the Hon'ble Gujarat High Court has held that the claimant has three statutory remedies available under Sections 166, 140 and 163-A of the M.V. Act and he can exercise any of the said remedies. It has been further held that the claimants are justified in withdrawing the original application filed under Section 166 of the Act and praying for award under Section 163A of the M. V. Act. It has been held that the claimant is entitled to file claim under either of these sections and not both. In the case supra, no order under Section 140 of the M.V. Act was passed. It has been held that the claimant is entitled to file claim under either of these sections and not both. In the case supra, no order under Section 140 of the M.V. Act was passed. Hence, the above citation is not useful for holding that even if the claimant has received the compensation under Section 140 of the M.V. Act, the petition under Section 163-A of the M. V. Act is maintainable. 22. In the case of “Hansrajbhai V. Kodala” (supra), the Hon'ble Supreme Court has held that the compensation payable under section 163-A of the M.V. Act is not in addition to or in the alternative to the determination of the compensation on the principle of 'fault liability'. It has been held that the right to claim compensation on the basis of “no fault liability” under Section 140 of the M.V. Act is in addition to the right to claim compensation on the principle of fault liability or right to get compensation under any other law. In this case also, it has nowhere been held that when the claimant has already received the compensation under Section 140 of the M.V. Act, he can still maintain the claim petition under Section 163-A of the M.V. Act. 23. In the case of “Delhi Transport Corporation Ltd.” (supra), a single judge of the Hon,ble Delhi High Court has held that while the benefit under Section 140 of the M.V. Act is in addition to compensation that may be payable under Section 168 of the M. V. Act, the award under Section 163-A is not in addition to section 168, but an alternative thereto. The learned Claims Tribunal has held that the judgment in “Delhi Transport Corporation Ltd.” (supra) is clearly on the point whether the party having availed of the benefit under Section 140 of the Act could be given benefit under Section 163-A of the M.V. Act in view of the prohibition contained in Section 163-B of the M.V. Act. The above is not true. The point that was argued in the case supra was that since the respondents had claimed compensation under sections 166 and 140 of the M. V. Act, they, by virtue of the provisions of Section 163-B, were precluded from being granted compensation under Section 163-A of the M. V. Act. The above is not true. The point that was argued in the case supra was that since the respondents had claimed compensation under sections 166 and 140 of the M. V. Act, they, by virtue of the provisions of Section 163-B, were precluded from being granted compensation under Section 163-A of the M. V. Act. It is clear that the learned Claims Tribunal has gone wrong in the interpretation of the judgment in the case of “Delhi Transport Corporation Ltd.” (supra). It is true that in the case supra, the claimants had mentioned Sections 166 and 140 of the M.V. Act, for claiming compensation. However, Section 140 was merely printed on the Claim application form. The Claimants had not, at any time, made any application for passing interim award under section 140 of the M. V. Act. Admittedly, no interim relief under Section 140 of the M.V. Act was either claimed or awarded to the claimants. Therefore, it was held that merely because the Claimants had mentioned Section 140 of the M. V. Act in the application claiming compensation, it cannot be said that they were barred from claiming compensation under Section 163-A of the M.V. Act. In the present case, the claimants had filed an application under Section 140 of the M.V. Act and they have been already paid the compensation amount, under the said provision. Hence, the above judgment is also not applicable to the present case. 24. In the case of “Guruanna Vadi” (supra), it has been held by the Hon'ble Karnataka High Court that the compensation under Section 163-A is final and not interim compensation and that the claim petition made under Section 166 of the M.V. Act can be converted under Section 163-A during the pendency of the proceedings at original or appellate side, if the claimant satisfies other conditions such as income factor, etc. In this case also, it has nowhere been held that if the claimant has already been paid compensation under Section 140 of the M.V. Act, still the petition under Section 163-A of the M.V. Act is maintainable. 25. In this case also, it has nowhere been held that if the claimant has already been paid compensation under Section 140 of the M.V. Act, still the petition under Section 163-A of the M.V. Act is maintainable. 25. In the case of “GhulamMohammad” (supra), however, it appears that the Division Bench of the High Court of Jammu and Kashmir, has held that when compensation under Section 140 of the M.V. Act has been already granted, still the Court can grant compensation to the victim in terms of Section 163-A of the M.V. Act. It has been held that the concept of 'no fault liability' enshrined under Section 140 is distinguishable from liability which can be fixed in terms of Section 163-A of the M.V. Act. The compensation under section 140 of the M.V. Act is interim whereas that under section 163-A is final. In the case supra, the Tribunal had awarded compensation under section 163-A of the M.V. Act and had ordered that the fixed amount of interim compensation granted under section 140 of the Act and received by the petitioners shall be reduced from the amount of compensation payable under section 163-A of the Act. The learned Claims Tribunal, in the present case, has done the same thing. 26. Section 163-B of the M.V. Act provides for an option to file claim in certain cases and it says that where a person is entitled to claim compensation under Section 140 and 163-A, he shall file claim under either of the said sections and not under both. The above is a mandatory section. Hence, if a person has filed an application for compensation under Section 140 of the M.V. Act and has already received the said compensation, then, certainly he cannot maintain the claim petition under Section 163-A of the M.V. Act. In the case of “United India Insurance Co. Ltd. Versus Janabai Yeshwant Kurhat & Others”[2002(4) Mh. L. J. 544], the learned Single Judge of the Aurangabad Bench of our High Court has held that the wording of section 163-B of the M. V. Act is very clear and a person cannot claim compensation under section 140 and 163-A. It has been held that a choice has been given to person to claim compensation under either of sections and not both. It has been held that where the Tribunal has awarded compensation under section 140 as well as under section 163-A, award under section 163-A is contrary to statutory provisions and therefore the award cannot be sustained in law. I fully agree with the above view of the learned Single Judge of the Aurangabad Bench of our High Court. 27. Section 141(1) of the M.V. Act crystallizes that right to claim compensation under section 140 is in addition to any other right to claim compensation on the principle of fault liability and specifically excludes the right to claim compensation under the scheme referred to in section 163-A. Sub-section (2) of section 141 further provides that if the claimant has filed an application for compensation under section 140 and also in pursuance of any right on the principle of fault liability, the claim for compensation under section 140 is to be disposed of in the first instance and as provided in sub-section (3), the amount received under subsection (2) of section 140 is to be adjusted while paying the compensation on the principle of fault liability. However, there is no provision in the M. V. Act for reducing the amount awarded under section 140 from the amount finally awarded under section 163-A of the M.V. Act. On the contrary, section 163-B specifically clarifies that claim petition can be filed either under section 140 or under section 163-A but not under both sections. 28. In my view therefore, the finding of the learned Claims Tribunal to the effect that the claimants are entitled to compensation finally under Section 163-A of the M.V. Act after having availed of the interim benefit under Section 140 of the M.V. Act is erroneous and cannot be sustained. 29. There is another point involved in the present case. Section 163-A of the M.V. Act provides as under : “163-A. Special provisions as to payment of compensation on structured formula basis. - (1) Notwithstanding anything contained in this Act or any other law for the time being in force or instrument having the force of law, the owner of the 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 motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation – For the purposes of this subsection, “permanent disability” shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under subsection (1), 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 or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time, amend the Second Schedule.” 30. Thus, under Section 163-A of the M.V. Act, compensation is payable on the basis of structured formula as given in the schedule II of the M.V. Act. As per the said structured formula in the second schedule, this benefit under Section 163-A of the M.V. Act can be availed of only by the claimant whose annual income is upto Rs. 40,000/-. Income at the slab of Rs. 40,000/- per annum is the highest slab in that second schedule. The above indicates that the Legislature wanted to give benefit of 'no fault liability' only to a certain limit as stated in the second schedule. In the case of “Hansrajbhai V. Kodala”(supra), the Division Bench of the Hon'ble Apex Court has held that the income of Rs. 40,000/-per annum operates as a cap and a claimant can always notionally bring down the income to Rs. 40,000/- per annum. If a person invokes the provision of Section 163-A, the annual income of Rs.40,000/- per annum shall be treated as a cap. However, in the subsequent case of “Deepal Girishbhai Soni” (supra), a larger Bench of the Hon'ble Apex Court has held in paragraph 67, thereof, as under : “67. We, therefore, are of the opinion that “Kodala” (supra) has correctly been decided. However, we do not agree with the findings in “Kodala” (supra) that if a person invokes provision of Section 163-A, the annual income of Rs.40,000/- per annum shall be treated as a cap. In our opinion, the proceeding under Section 163-A being social security provision, providing for a distinct scheme, only those whose annual income is upto Rs.40,000/- can take benefit thereof. In our opinion, the proceeding under Section 163-A being social security provision, providing for a distinct scheme, only those whose annual income is upto Rs.40,000/- can take benefit thereof. All other claims are required to be determined in terms of Chapter XII of the M.V. Act.” 31. In the case of “Ashabai Kalyan Kothi & ors” (supra), the learned Single Judge of our High Court (Aurangabad Bench), has observed that the Apex Court in the case of “Kodala” had taken a view that it may be possible to notionally bring down the income for bringing the claim within the purview of section 163-A of the M. V. Act, but the said decision is no longer a good law and the case of “Deepal Soni” settles the issue and therefore, assuming that in the present case, claimant had notionally brought down the income to Rs. 40,000/- p. a., the claim petition under section 163-A will not be maintainable. The learned Single Judge has further observed that in view of the law laid down by the Apex Court, it is not possible to accept the submissions made by the learned Advocate for claimants based on decision of Full Bench of Karnataka High Court and the decisions of certain other High Courts. 32. In the present case, initially, in the claim petition, it was pleaded by the claimants that the monthly income of the deceased was Rs. 3397/- which means that his yearly income was Rs. 40,764/-. Subsequently, by converting the petition as one under Section 163-A of the M.V. Act, an amendment was carried out to the said paragraph 6 of the claim petition now stating that yearly income of the deceased was Rs. 40,000/-per annum. However, inspite of the above, AW1, the claimant no.1-a, has stated in her affidavit filed in lieu of examination-in-chief that her son was an employee of Goa Bagayatdar K.V. Society Ltd. at Ponda and his monthly total salary was Rs.3397/-. AW2, Giridhar Potibhaskar, who is Branch Manager of the said Goa Bagayatdar Society Ltd., has stated that Sunil Naik was employed in their office at Bicholim and his net earnings were Rs.3,400/- per month. AW2 has produced salary certificate pertaining to the deceased at exhibit 49 which shows that the gross monthly salary of the claimant was Rs. 3434.75/-. AW2, Giridhar Potibhaskar, who is Branch Manager of the said Goa Bagayatdar Society Ltd., has stated that Sunil Naik was employed in their office at Bicholim and his net earnings were Rs.3,400/- per month. AW2 has produced salary certificate pertaining to the deceased at exhibit 49 which shows that the gross monthly salary of the claimant was Rs. 3434.75/-. The learned Claims Tribunal has held that the claimants have proved that the monthly salary of the deceased was Rs. 3400/-. However, the learned Claims Tribunal has restricted the income of the claimant to Rs. 40,000/- annually, which is against the evidence on record and which the learned Claims Tribunal was not entitled to do. Since it was proved that the monthly income of the Claimant was Rs.40,800/- per annum, the claim petition under Section 163-A of the M. V. Act was not maintainable. 33. I, therefore, hold that since the claimants have already received compensation under Section 140 of the M.V. Act, they are not entitled to maintain the claim petition under Section 163-A of the M.V. Act. I also hold that since the claimants had proved that the salary of the deceased was Rs.40,800/- per year, the claimants could not have taken benefit of Section 163-A of the M.V. Act. 34. As already stated above, the claimants and the respondents no. 1, 2 and 3 have accepted the award of the claims tribunal and the respondent no.2 (United India Insurance Pvt. Ltd.) has already paid their share of the compensation to the claimants. Therefore, it becomes necessary that the impugned judgment and award should be set aside, qua the respondents no. 4 and 5, as far as their share in compensation is concerned and the claim petition should be remanded to the learned Claims Tribunal for treating the same as under Section 166 of the M.V. Act and deciding the same afresh after giving opportunity to the claimants to prove the ingredients of Section 166 of the M.V. Act and also opportunity to the respondents no 4 and 5 to prove their case. 35. In the result, I pass the following: “ORDER” (i) The appeal is partly allowed. (ii) The impugned judgment and award dated 2/5/2005 is quashed and set aside in so far as the respondents no. 4 and 5 are concerned and the Claim Petition No.33/2001 is restored as against them. 35. In the result, I pass the following: “ORDER” (i) The appeal is partly allowed. (ii) The impugned judgment and award dated 2/5/2005 is quashed and set aside in so far as the respondents no. 4 and 5 are concerned and the Claim Petition No.33/2001 is restored as against them. (iii) The Claim Petition No. 33/2001 is remanded to the learned Motor Accident Claims Tribunal at Mapusa for treating the same as under Section 166 of the M.V. Act and for deciding the same afresh as against the respondents no. 4 and 5, as far as their share in the compensation is concerned. (iv) The Claims Tribunal shall give opportunity to the respondents no 4 and 5 to file additional written statements, if any. (v) The Claims Tribunal shall give opportunity to the claimants to prove the ingredients of section 166 of the M. V. Act and also to the respondents no. 4 and 5 to prove their case. (vi) The Claim Petition shall be disposed of expeditiously. (vii) Parties to appear before the Claims Tribunal on 30/04/2012 at 10.00 a.m.