JUDGMENT : Rumi Kumari Phukan, J. Heard Ms. R. D Mozumdar, learned counsel for the appellant and Mr. G Uddin on behalf of the respondent Nos. 1 and 2. 2. The appeal is directed against the judgment and award dated 24.7.2014 passed by learned Additional District Judge No. 4, (FTC), Kamrup in MAC Case No. 836/2005 u/s 173 of the Motor Vehicle Act. 3. Brief fact of this case is that the respondent No. 1 Sri Jugananda Konwar was the owner of the motor cycle and the same was duly insured with the Insurance Company Ltd. (respondent No. 2). On 28.09.2005, at about 10:00 P.M his son (Khargeswar Konwar) while riding the said motor cycle from Chabua Mission to Chabua panitola Block at normal speed and met with an accident at Chabua Sidding when he suddenly slipped with the motor cycle on the road due to loss of control as there was pilferage of burnt engine oil (mobil) on the road surface. As a result of the said accident, said Khargeswar Konwar died on the spot. It was contended that there was no negligence on the part of the deceased person. The deceased person was working as a Assistant Manager in a construction firm namely M/s M.M. Associates, Guwahati and was earning salary of Rs. 4,800/- per month, aged about 23 years old. The mother of the said deceased person preferred the claim petition before the Tribunal claiming compensation of Rs. 11,00,000/- for the death of her son as aforesaid. 4. The respondent however did not contest the case whereas the insurance company filed a written statement denying the allegations made in the claim petition. It was their challenged that the owner of the vehicle did not appear before the Tribunal in collusion with the claimant and Insurance Company is not liable to pay compensation as the vehicle was driven by the son of the insured/respondent No. 1. The Ld. Tribunal upon pleadings of both the parties framed the following issues: i. Whether the alleged accident on 28.09.2005 at Chabua Sidding at about 10:00 P.M caused due to rash and negligent driving of the driver of vehicle No. Hero Honda Motor Cycle bearing Chasis No. 04M63C02678, Engine No. 04M60M02784? ii. Whether Late Khargeswar Konwar died as a result of the said motor accident.? iii. ii. Whether Late Khargeswar Konwar died as a result of the said motor accident.? iii. Whether the claimant is entitled to get any compensation for the death/injuries caused to late Khargeswar Konwar in the said accident, if yes, what will be the just and reasonable amount of compensation? iv. Who amongst the opposite parties is liable to pay the compensation to the claimant? 5. During the course of proceeding, the claimant was examined as a PW-1 and she has reiterated all the facts that was narrated in the claim petition regarding the age, income of her son and also the fact that as the vehicle suddenly slipped down on the road and her son died in the incident. She has specifically stated that monthly salary of the deceased was Rs. 4,800/- and the vehicle was duly insured with the National Insurance Company. In her cross examination, she has also stated that the vehicle belongs to her husband and it was driven by her son on the fateful day. On the basis of the evidence on record, the Ld. Tribunal has assessed the income of the deceased as Rs. 3,000/- and by calculating the dependency on the basis of age and income, awarded a compensation of Rs. 3,59,000/- to the claimant with the interest at the rate of 6% per annum from the date of filing the case till payment with a direction to the National Insurance Company to pay the amount within 90 days from the date of order. 6. Challenging the aforesaid award, the present appeal has been preferred by the National Insurance Company primarily on two counts that the said award is bad in as much as the income of the deceased is concerned as well as the deceased being the son of the owner of the vehicle turns into step into the shoes of the owner and the National Insurance Company is not liable to indemnify the owner of the vehicle. In support of the contention, the learned counsel for the appellant has relied upon the decision of the Hon ble Supreme Court in New India Assurance Co. Ltd vs. Sadanand Mukhi & Ors, 2009 1 SCC 447, Ningamma & Anr vs. United India Insurance Co. Ltd, (2009) 13 SCC 710 National Insurance Company Vs. In support of the contention, the learned counsel for the appellant has relied upon the decision of the Hon ble Supreme Court in New India Assurance Co. Ltd vs. Sadanand Mukhi & Ors, 2009 1 SCC 447, Ningamma & Anr vs. United India Insurance Co. Ltd, (2009) 13 SCC 710 National Insurance Company Vs. Kanika Chaudhary and Others, (2006) 2 GauLT 261 wherein it has been specifically held that the driver of the vehicle who runs the vehicle of his father automatically comes into the shoes of his father being owner and in such eventuality the insurer is not liable to indemnify such driver cum owner of the vehicle. 7. Thus, it has been vehemently submitted that the said deceased was not a third party within the meaning of Sec. 147 of the Act and the liability of insurer cannot be imposed to a first party as in the given case. 8. On the next, it has been also elaborated that the case being filed u/s 163 A of MV Act, the Ld. Tribunal has erred in law awarding such compensation while the annual income of the deceased exceeds Rs. 40,000/- per annum. Now in the instant case the claimants in her claim petition as well as evidence specifically stated that the monthly income of the deceased was Rs. 4,800/- per month and in that sense his annual income exceeds Rs. 40,000/- per annum. As such, the tribunal cannot take suo motu regarding the income of the deceased as Rs. 3,000/- P.M in view of the provisions of 163(A) MV Act the tribunal lacks its jurisdiction to decide the matter as soon as the income exceeds for more than Rs. 40,000/- per annum. 9. Learned counsel for the respondent however stated that the tribunal has discretion to assess the income of the deceased, and as such the Ld. Tribunal has taken the monthly income as Rs. 3,000/- and hence the order is not without jurisdiction. As discussed above in view of the evidence and pleadings of the claimant itself where the income exceeds more than 40,000/- the tribunal itself cannot assess the amount. Such an assessment can be drawn by tribunal obviously when there is no evidence as regards the income of the deceased but in the instant case it is clear case of the claimant that he drawn salary of Rs. Such an assessment can be drawn by tribunal obviously when there is no evidence as regards the income of the deceased but in the instant case it is clear case of the claimant that he drawn salary of Rs. 4,800/- and as such there is no scope for using discretion on the part of the tribunal. That apart, no any salary certificate was produced before the Tribunal which shows the exact income may be more than what has been pleaded. 10. It has admitted position that on the fateful day the deceased was driving the vehicle of his father which was insured with the Insurance Company and in view of the decision rendered, referred above he steps into the shoes of the owner and the Insurance Company is not liable to indemnify the owner who is not a third party. 11. Accordingly this Court is constrained to hold that award passed by the Ld. Tribunal is bad in law and liable to be set aside. Accordingly the award passed by the Tribunal in MAC Case No. 836/2005 is hereby quashed and set aside. However, the petitioner is at liberty to approach the Insurance Company for getting the amount given under the policy against the premium that was paid against the owner, which will cover about 1 lakh, as per entitlement. The appellant/insurance company will do the needful on such approach by the claimant/respondent No. 1. The statutory amount that was deposited by the appellant be refunded to them. 12. With the observations made above, case stands disposed of. Return the LCR.