JUDGMENT : M.F.A. No.101587/2016 has been preferred by the appellant-insurer and M.F.A. No.103960/2016 has been preferred by the appellants-claimants being aggrieved by the judgment and award, dated 06.02.2016, passed by the Motor Accidents Claim Tribunal-II, Ballari (hereinafter referred to as ‘the Tribunal’, for short), in MVC No.905/2014. 2. Heard learned counsel appearing for the parties. Though the matter is listed for Orders, with the consent of the learned counsel appearing for the parties, the appeal is taken up for final disposal. 3. For the sake of convenience, the parties are referred to as per their rankings before the Tribunal. 4. The genesis of the case are that, On 21.03.2014, one S.Virupanna was traveling in a Chevrolet vehicle bearing registration No.KA-50/2415 and, at about 7.30 a.m., respondent No.1 being the driver of the said vehicle drove the same rashly and negligently, lost control over the said vehicle, as a result of which, the said vehicle capsized. Due to the said accident, said Virupanna sustained grievous injuries and he was immediately shifted to KIMS Hospital, Hubli and thereafter to M.S. Ramaiah Medical College and Hospital, Bengaluru. However, subsequently, he succumbed to the injuries. Having lost the bread earner of the family, the wife and the daughters of the deceased Virupanna filed a claimant petition under Section 166 of the Motor Vehicles Act claiming compensation by contending that the deceased was a retired High-school Headmaster and was getting pension of Rs.25,000/- per month and was also earning Rs.5,000/- from tuition and used to contribute the income and maintain the family. In pursuance of the notice, respondent No.3 appeared before the Tribunal and filed its written statement. However, respondent Nos.1 and 2 did not appear and they were placed ex parte. Respondent No.3, in its written statement, by denying the contents of the claim petition, further contended that more than six persons were traveling in the said vehicle; respondent No.1 was not holding valid and effective driving licence to drive the type of vehicle as on the date of the accident; the said vehicle was a commercial vehicle and was not having a valid permit to ply on the road and, as such, there being breach of policy conditions, the insurer is not liable to pay any compensation. On these grounds, insurer prayed for dismissal of the said petition. On these grounds, insurer prayed for dismissal of the said petition. On the basis of the above pleadings, the Tribunal framed the following issues for its consideration: 1. Whether the petitioners prove that on 21.03.2014 at about 7.30 a.m. when the deceased – S. Virupanna @ Virupanna, was traveling along with others in a Chevrolet vehicle bearing Reg. No.KA-50/2415 from Adavi Somapura towards Lakkundi and when they were near Adavi SomapuraLakkundi road, after crossing 1 K.M. of Adavi somapura, at that time, the respondent NO.1 being the driver of the said vehicle drove the same in the great speed and in a rash and negligent manner and lost control over the said vehicle and as a result of which the vehicle turned turtle and due to it, the deceased sustained injuries and died on 02.04.2014? 2. Whether the petitioners are entitled to the compensation as prayed by them from the respondents? 3. What Order or award? In order to prove their case, petitioner No.1 got examined herself as P.W.1 and got marked the documents as Exs.P.1 to P.29. Respondent No.3 got examined its Legal Officer as R.W.1 and got marked five documents as Ex.r.1 to R.5. After hearing the parties to the lis, the impugned judgment and award came to be passed by the Tribunal. 5. Assailing the said judgment and award, the petitioners and the insurer are before this Court. 6. The main grounds urged by learned counsel for the respondent No.3/appellant-insurer are that the impugned judgment and award passed by the Tribunal is erroneous and the same is not sustainable in law. It is further contended, petitioner Nos.2 and 3 are the major married daughters, they are not the dependants; only petitioner No.1 is the dependant of the deceased, under such circumstances, the Tribunal ought to have deducted half of the notional income towards personal expenses of the deceased instead of 1/3rd. He further contended that the 1st petitioner is getting pension and without considering the said aspect, the Tribunal has awarded the compensation which is on the higher side. He further contended that the compensation awarded under the conventional head is on the higher side. On these grounds, he prayed for allowing the appeal by reducing the compensation. 7. He further contended that the 1st petitioner is getting pension and without considering the said aspect, the Tribunal has awarded the compensation which is on the higher side. He further contended that the compensation awarded under the conventional head is on the higher side. On these grounds, he prayed for allowing the appeal by reducing the compensation. 7. Per contra, the learned counsel for the petitioners/appellants vehemently argued by contending that while calculating the income of the deceased, the Tribunal has taken the income of the deceased at Rs.17,823/- per month instead of Rs.21,191/- which was the actual last drawn pension by the deceased. He further contended that the pension and other benefits which would be received by the legal heirs would not fall within the purview of deductions, in that light, the amount received under the pension are not liable to be deducted and therefore, the contention of the insurer in this behalf is not sustainable in law. He further contended that the Tribunal has erred in applying the multiplier. As could be seen from the death summary-Ex.P.10, it shows the age of the deceased as 65 years, then under such circumstances, the Tribunal ought to have applied the multiplier ‘7’ instead of ‘5’. He also contended that the Tribunal has awarded just compensation under the conventional heads. On these grounds, he prayed for dismissal of the appeal and by enhancing the compensation awarded by the Tribunal. 8. The accident in question is not in dispute and so also the involvement of the offending vehicle insured with the insurer. 9. As could be seen from the judgment and award, it is the contention of the petitioners that the deceased was a retired High-school Headmaster and was getting pension of Rs.25,000/- per month, but the Tribunal by taking the income at the rate of Rs.17,823/- per month, deducting 1/3rd towards personal expenses and applying multiplier of ‘5’ by considering the age of the deceased as 68 years, has awarded compensation of Rs.7,12,920/- towards ‘loss of dependency’. However, as could be seen from the records, the bank passbook indicates that the deceased was drawing pension of Rs.21,191/- and this pension, which was last drawn by the deceased, should have been taken into consideration by the Tribunal 10. The records indicate that petitioner Nos.2 and 3 are the married daughters and they are not dependants. However, as could be seen from the records, the bank passbook indicates that the deceased was drawing pension of Rs.21,191/- and this pension, which was last drawn by the deceased, should have been taken into consideration by the Tribunal 10. The records indicate that petitioner Nos.2 and 3 are the married daughters and they are not dependants. Under the facts and circumstances of the case the only dependant is petitioner No.1, the wife of the deceased. In that light the Tribunal ought to have deducted half of the income towards personal expenses of the deceased. 11. Though the learned counsel for the petitioners contended that the deceased was aged 64 years, but as could be seen from Ex.P.28, the ration card which was prepared at an undisputed point of time, shows the age of the deceased as 68 years. Under such circumstances, I feel that the deceased was aged 68 years and as such, the multiplier applied by the Tribunal appears to be just and proper. 12. Keeping in view the above aspects into consideration, if the income is taken at the rate of Rs.21,191/-, half of the notional income is deducted towards personal expenses of the deceased and multiplier ‘5’ is applied, the petitioners would be entitled to Rs.6,35,730/- towards ‘loss of dependency’. 13. Even as could be seen from the judgment and award, the Tribunal has awarded an amount of Rs.1,20,000/- under the conventional heads. However, in view of the decision of the Hon’ble Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and others reported in AIR 2017 SC 5157 , the claimants are entitled to an amount of Rs.70,000/- under the conventional heads and the same is awarded in favour of the claimants. 14. The records also indicate that, immediately after the accident, the deceased was taken to various hospitals and was got treated. In that light, the petitioners have produced the documents to show that they spent an amount of Rs.2,15,792/- and there is no dispute with regard to that amount is concerned. Hence, the said amount awarded by the Tribunal is kept intact. 15. Keeping in view the above said facts and circumstances of the case, the claimants are entitled to an amount of Rs.9,21,522/- with interest at 6% per annum. 16. Hence, the said amount awarded by the Tribunal is kept intact. 15. Keeping in view the above said facts and circumstances of the case, the claimants are entitled to an amount of Rs.9,21,522/- with interest at 6% per annum. 16. It is the contention of the learned counsel for the insurer that the pension, which is received by the wife after the death of the deceased, to the extent of 50% has to be deducted. In order to substantiate the said contention, he relied upon a judgment of this Court rendered in M.F.A. No.21286/2013, disposed of on 20.04.2017, (The Bajaj Allianz General Insurance Co. Ltd., vs. Shanta W/o Chandrashekhar @ B Chandrashekharappa). But, it is the well settled principles of law laid down by the Hon’ble Apex Court that the provident fund, pension, insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a “pecuniary advantage” receivable by the heirs on account of one’s death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as “pecuniary advantage” liable for deduction. This proposition of law has been laid down by the Hon’ble Apex court in the case of Vimal Kanwar and Others vs. Kishore Dan and Others reported in 2013 ACJ 141 (SC). In this regard, it is relevant to extract paragraph 19 of the said judgment, which reads as under; “19. The first issue is “whether Provident Fund, Pension and Insurance receivable by claimants come within the periphery of the Motor Vehicles Act to be termed as “Pecuniary Advantage” liable for deduction?” The aforesaid issue fell for consideration before this Court in Helen C. Rebello vs. Maharashtra State Road Transport Corporation 1999 ACJ 10 (SC). In the said case, this Court held that Provident Fund, Pension, Insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a “pecuniary advantage” receivable by the heirs on account of one’s death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as “pecuniary advantage” liable for deduction. The following was the observation and finding of this Court: “(37). Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as “pecuniary advantage” liable for deduction. The following was the observation and finding of this Court: “(37). Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No correlation between the two. Similarly, life insurance policy amount is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which the insured contributes in the form of premium. It is receivable even by the insured if he lives till maturity after paying all the premiums. In the case of death, the insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on the insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though all are pecuniary advantage receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as “pecuniary advantage” liable for deduction? When we seek the principle of loss and gain, it has to be on a similar and same plane having nexus, inter se, between them and not to which there is no semblance of any correlation. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as “pecuniary advantage” liable for deduction? When we seek the principle of loss and gain, it has to be on a similar and same plane having nexus, inter se, between them and not to which there is no semblance of any correlation. The insured (deceased) contributes his own money for which he receives the amount which has no correlation to the compensation computed as against the tort-feasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can the fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act? The amount under this Act he receives without any contribution. As we have said, the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual.” 17. On going through the above said proposition of law, the same makes it very clear that the pension which is received by a legal heir is not deductible. In that light, the contention taken up by the learned counsel for the insurer is not sustainable in law and the same is liable to be rejected and accordingly, it is rejected. 18. Keeping in view the above said facts and circumstances, M.F.A. No.101587/2016 is allowed in part and the judgment and award passed in M.V.C. No.905/2014 dated 06.02.2016 is modified as indicated above. Insofar as M.F.A. No.103960/2016 is concerned, the same is dismissed as devoid of merits. The amount in deposit may be transmitted to the jurisdictional Tribunal forthwith. So far as the distribution of the compensation amount is concerned, the same may be disbursed as per the award of the Tribunal. Registry is directed to draw the award accordingly and also to send back the lower court records forthwith.