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MFA No.5331/2009 is filed by Insurance Company to set aside the impugned award.

MFA No.1484/2010 is filed by claimant for enhancement of compensation.

2. I have heard Sri O.Mahesh, learned counsel for Insurance Company and Sri Mahesh R.Uppin, learned counsel for claimant.

3. The claim petition was filed under section 163A of the Motor Vehicles Act, 1988 (for short, 'the Act'). The claimant has shown his income as Rs.5,000/- per month. The Tribunal ignoring the income of claimant, proceeded under section 163A of the Act to decide issue No.1. The Tribunal while deciding issue No.2 regarding quantum of compensation has invoked section 166 of the Act.

5. The learned counsel for Insurance Company would submit that claimant having pleaded guilty before criminal court in C.C.No.2588/2004 and having suffered judgment dated 03.02.2007 in MVC No.961/2005 had deliberately invoked the provisions of section 163A of the Act. The Tribunal without noticing the conduct of claimant and also income of claimant has determined claim under section 163A of the Act only while deciding issue of negligence. However, Tribunal while deciding issue No.2 has invoked the provisions of section 166 of the Act.

6. Sri Mahesh R.Uppin, learned counsel for claimant would submit that claimant has pleaded that his income is Rs.5,000/- per month. The Tribunal has taken income of claimant at Rs.3,000/- per month. The claim petition was filed under section 163A of the Act, the Tribunal did not rightly call upon claimant to establish negligence of I- respondent. The Tribunal has awarded just and reasonable compensation.

7. On hearing learned counsel for parties and after going through evidence and the impugned judgment, I find that Tribunal has ignored the provisions of section 163A of the Act and also section 166 of the Act. The Tribunal has ignored the contents of claim petition wherein claimant has shown his income as Rs.5,000/- per month. Therefore, claim petition should have been dealt under section 166 of the Act. The Tribunal notwithstanding the fact that claimant had invoked the provisions of section 163A of the Act should have considered documents filed by Insurance Company to find out as to whether I-respondent had established negligence on the part of claimant.

11. Sri O.Mahesh, learned counsel for Insurance Company would submit that impugned award has to be set aside.

12. In a claim petition filed either under section 163A or 166 of the Act, Tribunal has right to decide claim petition either under section 163A or 166 of the Act as situation warrants. The Tribunal cannot decide a part of claim under section 163A of the Act and other part of claim under section 166 of the Act. The approach of Tribunal is erroneous. The claimant should not suffer for errors committed by Tribunal. Therefore, I am of the opinion that matter requires reconsideration.