Judgment : 1. The appeal is filed against the judgment dated 23.8.2004 in MOP No.850 of 2000 on the file of the Motor Accident Claims Tribunal-cum-I Additional District Judge, Visakhapatnam. 2. A claim for compensation of Rs.5,00,000/-was made consequent on the death of the deceased Narasingarao in a motor accident. The claim of the petitioners is that the deceased was working as a Kalasi in Steel Plant drawing a salary of Rs.6,939/-and on 14.6.1998 at about 10.00 a.m. when the deceased was returning on the scooter to Simhachalam, one car bearing No. MH 13A 1036 driven by the 1st respondent in a rash and negligent manner and dashed against the scooter, as a result of which the deceased received multiple injuries and died. The petitioners are the dependants on him. 3. The respondents 1 and 2 are the driver and owner of the vehicle, remained ex parte and the insurance company, which is the appellant herein, contended that the cause of death was due to rash and negligent driving of the vehicle by the deceased himself and the quantum of compensation claimed by the claimants is excessive and untenable and insurance company is not liable to pay compensation. 4. After the trial was over, the claimants have filed an application to amend the claim one under Section 163-A of the Motor Vehicle Act (for short “M.V. Act”) alternatively and that amendment was allowed. 5. After considering the evidence on record, the lower Tribunal without any hesitation held that the incident was not due to the fault of the 1st respondent, who was the driver of the car and also gave a positive finding that from the entire crime record and also the evidence that the incident was due to the fault of the deceased. But, however, ignoring the claim of the claimants about the salary of the deceased, brought the claim within the parameters of Section 163-A of the M.V. Act and granted compensation, which is now disputed by the appellant. 6. The point for consideration is whether the award passed by the lower Tribunal is legal and sustainable? Point: 7. It is now fairly well settled that the claimants, who want to claim compensation under the M.V. Act have to choose either the claim is one under Section 166 of the M.V. Act or one under Section 163-A of the M.V. Act. Point: 7. It is now fairly well settled that the claimants, who want to claim compensation under the M.V. Act have to choose either the claim is one under Section 166 of the M.V. Act or one under Section 163-A of the M.V. Act. There cannot be any choice to have an alternative plea of consideration of claim of compensation. If the compensation cannot be granted under Section 166 of the M.V. Act, it should be under Section 163-A of the M.V. Act. In this case, the facts are very clear and the findings of the lower Tribunal are also very clear to the effect that the incident was due to the ault to the deceased. If that being so, invoking the provisions under Section 163-A of the M.V. Act and fastening the liability on the appellant with whom the car was insured, is not valid. Section 163-A of the M.V. Act can be invoked where if a specific claim is made and if the income of the deceased is less than Rs.40,000/-and the structural formula can be applied. But, it is a case where the fact that the deceased was aged about 37 years and that he was working as a Kalasi in the Steel Plaint, is admitted. The petitioners themselves claimed that the deceased was drawing a salary of Rs.6,939/- showing that the annual income of the deceased was Rs.84,000/-. If that being so, the reason given by the lower Tribunal to discard Ex.A6 salary certificate has being not proved, is not correct when it is not seriously disputed by the insurance company. The salary certificate Ex.A6 clearly goes to show that a sum of Rs.7,413.60 ps. was the gross salary of the deceased for the month of February, 1998. If the take home salary is only Rs.2,794.53 ps. that cannot be taken into consideration. Therefore, when a document is not disputed by the other side and the claimants themselves relied on a particular salary, the lower Tribunal should not have ignored the employment and the salary drawn by him and should not have determined the income of the deceased on a hypothetical basis as Rs.2,750/-without any basis. If while coming to such hypothetical conclusion, the lower Tribunal should have noted as to whether the income is fixed as an employee of the Steel Plant or a non-employee of the Steel Plant. If while coming to such hypothetical conclusion, the lower Tribunal should have noted as to whether the income is fixed as an employee of the Steel Plant or a non-employee of the Steel Plant. The fact that the deceased was an employee of the Steel Plant is not disbelieved by the lower Tribunal. 8. Therefore, in view of the above circumstances, when the claim of the claimants and the documentary evidence clearly goes to show that the income of the deceased is more than Rs.40,000/-, the award of the lower Tribunal in invoking the provisions under Section 163-A of the M.V. Act and determining the compensation is erroneous and, therefore, the award cannot be sustained. But, however, in order to prove the certificate under Ex.A6 as to the quantum of salary the deceased was drawing by the date of the death, an opportunity is sought to be given to the parties and the matter is remanded to the lower Tribunal for determination as to whether the salary of the deceased is above Rs.40,000/-or below Rs.40,000/-and as to whether the application of the provisions under Section 163-A of the M.V. Act can at all be applied in this case, even assuming to be that under Section 163-A of the M.V. Act does not require the proof of rashness or negligence and having found that the driver of the car was not at all responsible and the incident was only due to the fault of the deceased. 9. Therefore, the appeal is allowed, the award of the lower Tribunal is set aside and the matter is remanded to the lower Tribunal for giving opportunity to both the parties to adduce further evidence and to consider all legal aspects entitling and disentitling for the compensation claimed by the parties. No costs.