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8. The Issue No.2 was decided in affirmative and held that the deceased sustained grievous injuries as a result of the said Motor vehicle accident and died.

9. With regard to the issue No.3, related to the entitlement of compensation, the learned Tribunal while discussing the said issue has suddenly shifted from section 163A of MV Act, 1988 to 166 MV Act,1988 and held that the claimant is entitled to get compensation under section 166 of the Motor Vehicles Act. And as the claim petition has not been filed as per the guidelines laid down in section 166 of the Motor Vehicle Act, on the basis of the claim petition, no compensation can be awarded for death of her husband on account of motor accident. Thus, the application filed under section 163A of the Motor Vehicles Act has been decided basing on the requirement of section 166 of the Motor Vehicles Act and dismissed on the Page No.# 5/15 question of maintainability.

10. The learned counsel for the appellant submits that the learned Tribunal has Suo-moto converted the claim petition under section 163A of MV Act into the application under section 166 of the Motor Vehicles Act and dismissed the claim petition by adopting a hyper technical view while all other factors were satisfied.

11. It is further submitted that the question of maintainability was not an issue in the instant claim petition filed by the appellant and the defect which has been pointed out by the learned Tribunal regarding non rejoinder of party and non representation of the minor of the deceased and son of the second wife are curable defect which can be cured by giving opportunity to the appellant/claimant.

12. The learned counsel for the appellant contended that the view taken by the learned Tribunal that the deceased was a borrower of the motor cycle and thus he steps in the shoes of the owner and therefore, the deceased is not entitled to compensation is incorrect inasmuch as the deceased was the husband of the owner of the motor cycle which met the accident. The learned counsel for the appellant further submits that the claim petition filed by the appellant/claimant under section 163A has been converted into and decided based on the requirement under section 166 of the Motor Vehicles Act. The learned Tribunal after conversion of the application under section 163 A into section 166 has proceeded and decided the case under section 166 of the Motor Vehicles Act without giving any opportunity to the claimant; and submits that while converting Page No.# 6/15 the application under section 163A to section 166 of the MV Act, the claimant should have been given an opportunity to place its case under the said provision of the Motor Vehicles Act.

20. In order to consider the above rival contentions of the parties we may have to discuss the matter at some length. However, as the appellant has made a limited prayer for remanding back the case to the learned Tribunal for re-consideration contending that the claim petition was filed before the learned Tribunal under section 163A of the Motor Accident Act; the trial of the case proceeded under the said provision; however, while discussing the issue No.3, related to the entitlement of compensation, the learned Tribunal has suddenly shifted from section 163 A of MV Act, 1988 to under section 166 MV Act,1988. The said conversion from 163A of MV Act to 166 MV Act was done by the learned Tribunal at its own and no any information was given to the parties. Further, the learned Tribunal after conversion of the application under section 163A into section 166 of MV Act has proceeded and decided the case based on the requirement under section 166 of the Motor Vehicles Act without giving any opportunity to the claimant to place her case under the said provision. It is not disputed that the conversion of application under section 163A to 166 of MV Act was done by the learned Tribunal on its own accord. The conversion of the petition under section 166 of MV Act is based on the assertions made in the claim statement. However, as the requirement of the petition under 166 and 163A are different, the petitioner ought Page No.# 15/15 to have been given an opportunity to amend her petition before conversion. That opportunity having not afforded, the appellant has been caused serious prejudice.