JUDGMENT : Vivek Singh Thakur, J. Present appeal has been preferred by claimants against award dated 21.06.2013 passed by Motor Accident Claims Tribunal-III, Shimla in MAC Petition No. 41-S/2 of 2012/09, titled Smt. Seema alias Cheema & Ors. vs. The New India Assurance Co. Ltd. & Ors., whereby claim petition preferred by the claimants under Section 163-A of the Motor Vehicles Act (for short ‘M.V. Act’) filed for awarding compensation on account of death of Rakesh Kumar, who was husband of claimant No. 1 and father of claimants No. 2 and 3, has been dismissed on the ground that a claim petition, preferred by claimants earlier, filed under Section 163-A of M.V. Act for awarding compensation by pleading that income of deceased was Rs. 20,000/- per month, has been dismissed vide order dated 12.01.2009 by the MACT being not maintainable for the reason that income of the deceased was exceeding Rs. 40,000/- per annum. 2. As per facts proved on record, deceased Rakesh Kumar was injured in accident occurred on 26.12.2006 while car Maruti Zen bearing No. HP-12-7150 met with an accident near Lelupul in the jurisdiction of Police Station Theog, District Shimla and thereafter he remained under treatment in IGMC, Shimla, but succumbed to his injuries on 05.01.2007. 3. Admittedly, car was registered in the name of Madan Lal, resident of Baddi (Respondent No. 2) and as per Insurance Cover Note and Policy (Ext. PW2/A) placed on record, the insured was Madan Lal and insurance was valid from 24.08.2006 to 23.08.2007. The Insurance Policy was Third Party Basic Insurance Policy with compulsory PA to owner-cum-Driver amounting to Rs.2,00,000/-. 4. As per FIR (Ext. PW1/A), the accident took place on account of rash and negligent driving of deceased Rakesh Kumar, who alone was travelling in the Car. According to claimants, the car met with an accident due to mechanical defect. 5. Respondent No. 2 Madan Lal, after service, appeared before the MACT and filed reply to the petition stating therein that he had sold the vehicle in question to munish puri, resident of Chandigarh UT in the month of December, 2003 and, on 31.12.2003, he had applied for granting No Objection Certificate from Registering and Licensing Authority (R&LA), Nalagarh, District Solan, H.P., and on 16.01.2004 vide letter No. NLG/MLC/2003/622-623, (Ext. RW1/A) No Objection Certificate was communicated by the R&LA, Nalagarh to Registering and Licencing Authority, Chandigarh UT. RW1/A) No Objection Certificate was communicated by the R&LA, Nalagarh to Registering and Licencing Authority, Chandigarh UT. He had further stated that there was no fault on his part and the amount, if any, is to be recovered from Insurance Company as the vehicle in reference was insured with respondent No. 1 Insurance Company. 6. After filing reply by respondent No. 2, respondent No. 3 Munish Puri was impleaded as party respondent No. 3 vide order dated 25.07.2009, who, after service, appeared before the MACT on 15.09.2009 in person but thereafter he did not appear and consequently vide order dated 15.10.2009, he was proceeded ex-parte. 7. Respondent No. 1 had also examined RW-1 Mehar Singh Khachi, Superintendent Grade II, office of SDM, Nalagarh, who proved filing of application by Madan Lal for issuance of no objection to Registering Authority Chandigarh, in favour of Munish Kumar. The said witness was not cross-examined on behalf of claimants and Insurance Company. Respondent No. 2 Madan Lal was also proceeded ex-parte on 02.01.2013. 8. Claimants examined PW1 HHC Bhagwan Singh from Police Station, Theog, who proved FIR No. 206/06 by proving photocopy of Ext. PW1/A thereof with deposition that it was true and correct copy of the FIR. He was not cross-examined by anyone. 9. PW2 Pankaj Kumar, Assistant Manager, New India Assurance Company was also examined by the claimants, who proved copy of Insurance Policy (Ext. PW2/A) issued with respect to car bearing No. HP-12- 7150 with submission that owner-cum- driver was covered under the Policy for payment of extra premium for that. In cross-examination, he admitted that ‘insured’ in the policy was Madan Lal s/o Chamba Ram and there was no information regarding transfer of vehicle. 10. Claimant Seema Sood appeared as PW3 by filing her examination-in-chief on affidavit Ext. PW3/A. She produced medical bills Ext. PW3/B-1 to Ext. PW3/B-9, certified copy of postmortem report Ext. PW3/C, legal heir certificate Ext. PW3/E, copy of PAN Card Ext. PW3/F and she also produced copy of RC of vehicle Mark-A and driving licence of deceased Rakesh Kumar Mark-B. 11. In her cross-examination PW-3 Seema admitted that she had also filed a claim petition earlier by mentioning income of her husband as Rs. 20,000/- per month with self statement that it was disclosed by mistake. PW3/F and she also produced copy of RC of vehicle Mark-A and driving licence of deceased Rakesh Kumar Mark-B. 11. In her cross-examination PW-3 Seema admitted that she had also filed a claim petition earlier by mentioning income of her husband as Rs. 20,000/- per month with self statement that it was disclosed by mistake. She further deposed that she was not knowing who was owner of the vehicle at the time of accident and in which capacity her husband was driving the vehicle. She stated that she was not knowing that vehicle was purchased by them and since when the vehicle was with them and in whose name vehicle had been registered. 12. Brother-in-law of deceased (Brother of Seema Sood) Anil Chauhan was examined as PW4, who filed his examination- in-chief (Ext. PW4/A) in evidence. In cross-examination, he stated that he was not knowing that vehicle in reference had been purchased by deceased Rakesh Kumar and in what capacity deceased Rakesh Kumar was driving car. He stated that he was not knowing Madan Lal. He was not having any idea since when vehicle was with Rakesh Kumar as he was residing at Vikas Nagar. He stated that he used to visit her sister’s house but expressing ignorance that the vehicle in reference was with the family of the sister because he had never seen any vehicle parked near the house of sister. 13. No witness was examined by the Insurance Company, however, earlier claim petition filed by the petitioners was placed on record as Ext. RW1/B and copy of order dated 12.01.2009 passed therein was placed on record Ext. R-1. 14. It has been contended on behalf of appellant that earlier petition, preferred by the claimants, was dismissed being not maintainable without adjudicating the same on merit and, therefore, the order dated 12.01.2009 does not create a bar on account of res judicata to the claimants to file fresh petition and, therefore, it has been contended that the MACT, after deciding the Issue Nos. 1 and 2, in favour of the claimants, has committed mistake by deciding the issue of maintainability of the petition against them, with further submission that at least, for payment of extra premium for compensation on account of personal accident of owner-cum-driver, claimants are entitled for compensation amounting Rs. 2,00,000/- with appropriate interest on account of death of deceased Rakesh Kumar. 15. 2,00,000/- with appropriate interest on account of death of deceased Rakesh Kumar. 15. Without going into the issue that as to whether order dated 12.01.2009, creates res judicata against the claimants debarring them from filing fresh petition, it is relevant to record that earlier claim petition was dismissed on 12.01.2009 and present second claim petition was prepared on 13.01.2009 and filed on 14.01.2009 by the same Advocate but without disclosing any facts about filing of previous claim petition and dismissal thereof being not maintainable for exceeding income of the deceased to the maximum limit of income i.e. Rs. 40,000 provided in Schedule for filing claim petition under Section 163-A of M.V. Act. Therefore, claimants have not come with clean hands and they have concealed the material facts. 16. It is also apt to record that in earlier petition income of the deceased was stated as Rs. 20,000/- per month i.e. Rs. 2,40,000/- per annum whereas in the present petition, it has been mentioned as Rs. 40,000/- per annum. In previous petition, amount of compensation was claimed @ Rs. 20,00,000/- and in the present petition also the same amount of compensation has been claimed. 17. In aforesaid facts, following paras of the pronouncement of the Apex Court in Deepal Girishbhai Soni & Ors. vs. United India Insurance Co. Ltd., (2004) 5 SCC 385 , shall be relevant to be referred:- “42. Section 163-A was, thus, enacted for grant of immediate relief to a section of people whose annual income is not more than Rs. 40,000/- having regard to the fact that in terms of Section 163-A of the Act read with the Second Schedule appended thereto; compensation is to be paid on a structured formula not only having regard to the age of the victim and his income but also the other factors relevant therefor. An award made thereunder, therefore, shall be in full and final settlement of the claim as would appear from the different columns contained in the Second Schedule appended to the Act. The same is not interim in nature. The note appended to column 1 which deals with fatal accidents makes the position furthermore clear stating that from the total amount of compensation one-third thereof is to be reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. The same is not interim in nature. The note appended to column 1 which deals with fatal accidents makes the position furthermore clear stating that from the total amount of compensation one-third thereof is to be reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. This together with the other heads of compensation as contained in column Nos. 2 to 6 thereof leaves no manner of doubt that the Parliament intended to lay a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation for proving that the accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out of use of a motor vehicle. ….. 57. We, therefore, are of the opinion that remedy for payment of compensation both under Sections 163-A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. One, thus, must opt/elect to go either for a proceeding under Section 163- A or under Section 166 of the Act, but not under both. …. 67. We, therefore, are of the opinion that Kodala (supra) has correctly been decided. However, we do not agree with the findings in Kodala (supra) that if a person invokes provisions of Section 163-A, the annual income of Rs. 40,000/- per annual shall be treated as a cap. In our opinion, the proceeding under Section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is upto Rs. 40,000/- can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act.” 18. 40,000/- per annual shall be treated as a cap. In our opinion, the proceeding under Section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is upto Rs. 40,000/- can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act.” 18. On the issue, following para of judgment passed by learned Single Judge of this Court in United India Insurance Company Ltd. vs. Santosh Kumari & Ors., Latest HLJ 2019 (HP) 1503, is also relevant:- “7 At the outset it needs to be noticed that there can be no quarrel with the legal preposition, as propounded by the learned counsel for the appellant as it is more than settled that the protection provided under section 163A of the Act is to the victims whose income slab is upto Rs.40,000/ per annum and not to the victims whose income slap is more than Rs. 40,000/- per annum. The income is not even negotiable as the claimants cannot be permitted to abandon a part of the claim and restrict the same to Rs.40,000/ per annum in order to avail the remedy under Section 163A of the Act.” 19. Following paras of judgment passed by Division Bench of this Court in Oriental Insurance Co. Ltd. vs. Sihnu Ram & Ors., 2017 (ACJ 2186 , are also relevant for adjudication of present matter, which read as under:- “48. The protection provided under Section 163A of the MV Act is to the victims whose income slab is up to 40,000/? per annum and that remedy is not available to the victims whose income slab is more than 40,000/ per annum. If the? Claims Tribunal comes to the conclusion that the income slab of the victim is more than 40,000/, the remedy under? Section 163A of the MV Act cannot be pressed into service, but, as discussed hereinabove, it can be treated as claim petition under Section 166 of the MV Act by providing opportunity to the claimants to prove rash and negligent element, which is sine quo non for determining the claim petition under Section 166 of the  MV  Act  and  opportunity  is  also  required  to  be provided to the respondents to raise all defences available to them in terms of the mandate of the MV Act. 49. 49. The claimants cannot be permitted to abandon a part of their claim and restrict the same to 40000/ per? annum in order to avail the remedy under Section 163A of the MV Act. That is not the aim, object and scope of the Legislation. If that would have been so, then there was no need to prescribe the income slab and in case the claimants are allowed to do so, it will amount to rewriting the provisions of Section 163A of the MV Act. 50. Having said so, the claimants/victims cannot be permitted to abandon a part of their claim and restrict the same to 40,000/ per annum in order to maintain the claim? petition under Section 163A of the MV Act.” 20. In present case there is not even whisper about the fact that for what reason income in the first petition was mentioned Rs. 20,000/- per month, though Seema Sood stated that it was mentioned by mistake. Had it been so, then an application for amendment should have been filed in earlier petition and even after dismissal of the said petition vide order dated 12.01.2009, an appeal would have been preferred by the claimants with plea that income @ Rs. 20,000/- per month of the deceased was mentioned by mistake and they were entitled to amend the said income. 21. It is also a fact that on record there is no material to determine  income  of  deceased  Rakesh  Kumar  either  as Rs.40,000/- per annum or as Rs. 20,000/- p.m. i.e. Rs. 2,40,000/- per annum. 22. From the material on record, it is more than apparent that fresh petition has been filed by mentioning income @ Rs. 40,000/- per annum only in order to bring the petition in the purview of income limit provided for filing petition under Section 163-A of the M.V. Act because deceased Rakesh Kumar, who was driving the vehicle, for rash and negligent driving on his part, claimants would not have been entitled for any claim under Section 166 of M.V. Act and after dismissal of first petition on 12.01.2009, they tried to file a claim petition by mentioning the income Rs. 40,000/- per annum but without disclosing the filing of earlier petition with mention of income @ Rs. 20,000/- per month. 23. Status of deceased Rakesh Kumar with reference to user and driving of the vehicle in reference, is also not clear. 40,000/- per annum but without disclosing the filing of earlier petition with mention of income @ Rs. 20,000/- per month. 23. Status of deceased Rakesh Kumar with reference to user and driving of the vehicle in reference, is also not clear. It is not the case of the claimants that the vehicle was purchased by Rakesh Kumar either from Madan Lal or from Munish Puri. PW2- Seema Sood and PW3 Anil Chauhan expressed their ignorance about purchase of vehicle. They also categorically stated that they were not knowing that in what capacity the deceased Rakesh Kumar driving the vehicle. Though Madan Lal has been found to be the registered owner of the vehicle irrespective of his claim that vehicle was transferred to Munish Puri, but at the same time, it is not clear from the material on record that from whom and how deceased Rakesh Kumar came in possession of the vehicle involved in the accident. 24. Claim of Madan Lal with respect to issuance of no objection by R&LA, Nalagarh, in favour of Munish Puri sent to R&LA, Chandigarh UT is also not leading to anywhere as the said NoC pertains to the date 16.01.2004, whereas in Insurance Policy purchased and issued, in the year, 2006, valid from 24.08.2006, insured is Madan Lal. 25. Be that as it may, even if either of them i.e. Madan Lal or Munish Puri is held to be owner of the vehicle, there is nothing on record to link these persons with respect to possession of the vehicle by the deceased Rakesh Kumar. He cannot be driver of Madan Lal or Munish Puri, as it has been claimed in the claim petition that deceased was a cloth merchant. It is also not the case of the claimants that deceased Rakesh Kumar had borrowed the vehicle from Madan Lal or Munish Puri, so as to construe that he had entered in the shoes of owner so as to claim compensation on account of premium paid for personal accident of owner-cum-driver. 26. Deceased Rakesh Kumar has neither been proved as a driver or owner of the vehicle or any other capacity to possess and drive the vehicle. 26. Deceased Rakesh Kumar has neither been proved as a driver or owner of the vehicle or any other capacity to possess and drive the vehicle. Therefore, in absence of material on record to arrive at a conclusion regarding the status of deceased Rakesh Kumar, it is impossible to determine entitlement of the claimants to receive the compensation from the registered owner or ostensible owner, much less from the Insurance Company. 27. No other points have been urged. 28. In view of the above discussion, I do not find any merit in the appeal. Accordingly, the appeal is dismissed.