Judgment:
Kuldip Singh, J.
1. The claimant has come in appeal against award dated 14.3.2005 passed by Motor Accident Claims Tribunal, Hamirpur in MAC Petition No. 80 of 2002, dismissing the claim petition of the appellant.
2. The facts in brief are that appellant had filed petition claiming of Rs. 5,00,000/- compensation on account of death of his son Uttam Chand alias Tinku on 3.9.2000 involving tractor No. HP22- 9120. On 3.9.2000 the deceased was driving tractor No. HP-229120 with trolley. The tractor crossed the bus stop at village Sulghan, a truck came from opposite and wrong side which forced the deceased to take the tractor on extreme left and apply brakes with the result the tractor turned turtle and deceased came under the trolley and died on the spot. The deceased was earning Rs. 5,000/- per month. The respondents No. 1 and 2 were the owners and respondent No. 3 insurer of the tractor at the relevant time. The deceased was aged of 22 years at the time of accident and death. On those facts the appellant filed the claim petition. The appellant filed an application under Order 6 Rule 17 read with Order 1 Rule 10 CPC for converting the petition under Section 166 of the Motor Vehicles Act, 1988 (for short Act) to petition under Section 163-A of the Act and deletion of respondent No. 3 as party to the petition. The Tribunal on 5.3.2004 allowed the amendment and permitted the petitioner to convert the petition under Section 163-A of the Act. The name of respondent No. 3 was not deleted, rather a direction was given to file fresh memo of parties showing the name of respondent No. 3.
3. The petition was contested by respondents No. 1 and 2. They took preliminary objections of maintainability, non-joinder of necessary party namely Jagdish Chand as tractor No. HP-22-9120 was allegedly given by respondents No. 1 and 2 on lease to him. The respondents No. 1 and 2 denied the claim of the appellant but pleaded that the tractor was insured with respondent No. 3 at the relevant time.
4. The respondent No. 3 also contested the petition and took preliminary objections that the vehicle was being used in contravention to the insurance policy at the time of accident. In a petition arising out of same accident, the Tribunal had fixed the liability on respondents No. 1 and 2. On merits, respondent No. 3 denied the claim of the appellant.
5. On the pleadings of the parties, the following issues were framed by the Tribunal:
1. Whether Uttam died on 3.9.2000 while driving tractor bearing No. HP-22-9120 met with an accident and consequently was crushed under the tractor trolley and succumbed to injuries he suffered? OPP
2. Whether petitioner entitled for compensation, if so, to what amount and from whom OPP
3. Whether petition is not maintainable? OPR-1&2.
4. Whether petition is bad for non-joinder of Jagdish Chand son of Dallu ram who had taken the tractor on lease from respondent No. 1 as alleged, if so, to what effect? OPR 1&2.
5. Whether deceased Uttam Chand was not employee of respondents No. 1 and 2 at the time of accident as alleged? OPR 1 and 2
6. Whether the tractor at the time of accident was plied in contravention of terms and conditions of the Insurance Policy as alleged? OPR-3
7. Relief.
6. The Tribunal answered Issue No. 1 in affirmative, the issue No. 2 was decided along with issue No. 3 by holding that the petition is not maintainable, issues No. 4,5 and 6 were answered in negative and the petition was dismissed, hence appeal.
7. Heard and perused the record. The learned Counsel for the appellant has submitted that the Tribunal has erred in returning the findings that the petition was not maintainable. He has submitted that on the basis of material on record, it cannot be said that the income of the appellant is more than Rs. 40,000/- per annum. The learned Counsel for the respondents have supported the impugned award.
8. The appellant in the petition has pleaded that the deceased was earning Rs. 5,000/- per month. In other words the income of the deceased was Rs. 60,000/- per month. Satya Devi appellant has appeared as PW-3 and has stated that the deceased was earning Rs. 4000/- to Rs. 5000/- per month. In her cross- examination conducted on behalf of respondent No. 3 she has stated that she does not know that the tractor driver was being paid Rs. 1500/- per month. The learned Counsel for appellant has submitted that in view this stand of respondent No. 3 the income of deceased comes to Rs. 18000/- per annum and therefore, the Tribunal had the jurisdiction under Section 163-A of the Act.
9. The jurisdiction of the Tribunal is to be seen from the pleadings. The appellant in the petition has specifically pleaded that the income of the deceased was Rs. 5,000/- per month. In petition under Section 163-A of the Act the limit of the income is of Rs. 40,000/- per annum. The petition filed by the appellant cannot be treated as a petition under Section 166 of the Act in view of the fact that appellant herself had filed an application for conversion of the petition into a petition under Section 163-A of the Act. In Deepal Girishbhai Soni and Ors. v. United Insurance Company Ltd. Baroda : (2004) 5 SCC 385, the supreme court has held that if a person invokes provisions of Section 163-A, the annual income of Rs. 40,000/- per annum shall be treated as a cap.
10. In view of law laid down by the Supreme Court in Deepal Girishbhai Soni, the petition filed by appellant under Section 163-A of the Act is not maintainable. There is no perversity in the impugned judgment, no case for interference is made out. Resultantly, appeal fails and is accordingly dismissed. It is made clear that the petition of the appellant has been dismissed on the ground of maintainability which shall not preclude her to take appropriate proceedings for claiming compensation regarding the death of her son in accordance with law.