IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 MACA.No. 1452 of 2008(B) ----------------------- OPMV.458/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL .................... APPELLANT(S): -------------- 1. P.AMBUJAKSHY, W/O.LATE RAGHAVAN PLAVILA VEEDU, CADAVER VILLAGE, KALLAMBALAM 2. R.ANIRUDHAN, S/O.LATE RAGHAVAN PLAVILA VEEDU, CADAVER VILLAGE KALAMBALAM. 3. R.MOHANAN, S/O.LATE RAGHAVAN PLAVILA VEEDU,CADAVER VILLAGE KALLAMBALAM. 4. R.PUSHAPANGADHGAN, S.I.LATE RAGHAVAN PLAVILA VEEDU, CADAVER VILLAGE;KALLAMBALAM 5. SUDHANAN, S/O. LATE RAGHAVAN, PLAVILA VEEDU, CADAVER VILLAGE;KALLAMBALAM 6. R. SHABU, S/O. LATE RAGHAVAN, PLAVILA VEEDU, CADAVER VILLAGE;KALLAMBALAM 7. GIRIJA, W/O. ASOKAN PREDECEASED SON OF LATE RAGHAVAN PLAVILA VEEDU, CADAVER VILLAGE;KALLAMBALAM 8.RENJU, AGED 17 YEARS (MINOR), S/O. ASOKAN PREDECEASED SON OF LATE RAGHAVAN PLAVILA VEEDU, CADAVER VILLAGE, KALLAMBALAM (THE MINOR 8TH APPELLANT IS REPRESENTED BY THE NATURAL GUARDIAN MOTHER, THE 7TH APPELLANT) BY ADV. SRI.T.M.ABDUL LATHEEF SRI.A.MOHAMED RASHEED RESPONDENT(S): --------------- 1.B. SUDHARSANAN, S/O. BHASKARAN, THEKKEPOIKAYIL VEEDU, KALLAMBALAM PO (PIN 695 605) 2. NAME & ADDRESS OF THE DRIVER IS NOT KNOWN WILL BE FURNISHED LATER. 3.THE MANAGER NEW INDIA ASSURANCE COMPANY LIMITED NEAR MUNICIPAL BUS STAND, ATTINGAL, (PIN 695 101) ADV. SRI.M.RAJAGOPALAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13 /07 /2009 , THE COURT ON 13/07/2009 DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A . NO:1452 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th Day of July, 2009. JUDGMENT K. M. Joseph J. The appellants 1 to 6 are the wife and children of late Raghavan, who died in the accident and appellants 7 and 8 are wife and child of pre-deceased son of late Sri. Raghavan. The Tribunal has awarded an amount of Rs.1,42,500/- with an interest at 7.5%. This appeal is directed against the inadequacy of quantum. 2. We heard Adv. Sri. T. M. Abdul Latiff, learned counsel for the appellants and learned counsel appearing on behalf of the third respondent, Insurance Company. 3. Late Raghavan was aged 72 years, at the time of fatal accident. Main complaint raised by the learned counsel for the appellants is against the finding, of the Tribunal by which the amount of pension which late Raghavan was receiving was not taken into consideration. The Tribunal has fixed Rs.2,500/- as monthly income and calculated dependency after deducting one third. M.A.C.A . NO:1452 OF 2008 : 2 : 4. According to the learned counsel for the appellants, there is no reason to exclude the pensionary amount. Of course the case of the appellants was that late Sri. Raghavan having an income of Rs.7,500/- per month which included Rs.5,000/- as pension and Rs.2,500/- from agricultural operations. The discussion and finding of the Tribunal at paragraph of the Judgment, is extracted hereunder: “Now the question is, can the pensionary benefits enjoyed by the deceased can be taken into account in fixing the notional income. No authority is placed by the learned counsel for the applicants in support of his argument that the same is also to be counted. The earnings of the deceased though include pensionary benefits while calculation the total earning pensionary benefits enjoyed by the deceased is not at all a criteria in fixing the notional income. Even then considering the Ext.A6 the age of the deceased a notional income of Rs.2,500/- is accepted. The death of Raghavan was confirmed by Ext.A4 post mortem certificate dated 3.3.2002. The death was due to the blunt injuries sustained to the head, spine and chest. Ext.A5 is the inquest report.” 5. There is no dispute that late Raghavan was in receipt of Rs.5,000/- as pension. There is no case that the pension was limited to a particular point of time. Learned counsel for the appellants would M.A.C.A . NO:1452 OF 2008 : 3 : submit that the pension was available to late Raghavan as long as he was alive. If that is so, upon the death of late Raghavan certainly that income would stop accruing. The reason for the deprivation of the income is obviously death of late Raghavan in the motor vehicle accident. There is no reason for us not to take Rs.5,000/- as the income of late Raghavan. Obviously, the pension cannot be treated as a bounty and must have been earned by late Raghavan and he was entitled to get it till his death. Therefore, we can safely take income of late Raghavan as Rs.5,000/- on the basis that he was entitled to get a pension of Rs.5,000/- per month. There is no dispute about this aspect that late Raghavan was getting Rs.5,000/- as pension every month. The only reason stated is that that there is no authority to take pension as the income. It appears to be plain that late Raghavan was earning Rs.5,000/- as a matter of right by way of pension and this can certainly be treated as income for purpose to computing the compensation applying multiplier theory. The Tribunal has applied Multiplier theory, but has taken Rs.2,500/- as the income. There is no case that the widow or any other members of family would continue to get the M.A.C.A . NO:1452 OF 2008 : 4 : same pension upon the death of late Raghavan. Therefore, there is no reason why we should not take income of late Raghavan at Rs.5,000/- We are certainly not inclined to include income which was allegedly derived by late Raghavan by agricultural operations. On the basis of the same the appellant should be entitled to Rs.1,00,000/- more. Accordingly this appeal is allowed in part and the appellants are allowed to realise Rs.1,00,000/- more with interest of 7.5% from the date of petition till the date of realisation from the third respondent in the same ratio. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/