Jammu & Kashmir High Court
Lali Ram And Ors vs Unknown on 17 August, 2021
Sr. No.176
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
RP 38/2019
CM No. 5190/2019
Lali Ram and ors ..... applicant (s)
Through :- Mr. Sheikh Ayaz Hussain
Advocate.
V/s
.....Respondent(s)
Oriental Insurance Co. Ltd and ors
Through :- Mr. Amrit Sarin Advocate.
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
ORDER
1 The present review application is filed by the applicants/claimants
stating that since the deceased was a Government employee, who died in
harness, therefore, they being his legal heirs were entitled to enhanced pension
at the rate of 50% as is clear from Rule 20(bb) inserted in the CSR vide SRO
391 dated 15th July 1983. The enhanced pension, it is submitted, is payable for
a period of ten years. This amount which is payable to every Government
employee, dying in harness, has no co-relation with the Motor Vehicle
Accident. This Court, therefore, committed an error apparent on face of record
in deducting special pension amount for the awarded sum.
2 Relying upon the judgment rendered in the cases of Reliance General
Insurance Company vs. Shashi Sharma and others, 2016 (9) SCC 627,
Sebastiani Lakra and others vs. National Insurance Company Limited and
another, AIR 2018 SC 5034 and National Insurance Company Ltd vs.
Mannat Johal and others, AIR 2019 SC 2079, it is urged that the issue,
whether the pensionery benefits can be deducted while calculating the loss of
income is no longer res integra. It is, thus, urged that the family pension
received by the family of the deceased employee cannot be deducted from loss
of income.
3 Heard learned counsel for the parties and perused the record.
4 Law in this regard was set at rest way back in the year 2016 in the case
of Shashi Sharma (supra) in which three Judge Bench of the Hon‟ble Supreme
Court in paragraph 26 of the Judgment concluded as under:
".....................................................................
.....................................................................
.....................................
Similarly, other benefits extended to the dependents of the
deceased Government employee in terms of sub-rule (2) to
sub-rule (5) of Rule 5 including family pension, Life
Insurance, Provident Fund etc., that must remain unaffected
and cannot be allowed to be deducted, which, any way
would be paid to the dependents of the deceased
Government employee, applying the principle expounded
in Helen C.Rebello and Patricia Jean Mahajan‟s cases
(supra)".
5 The legal position as enunciated in the aforesaid Judgment, to put it
precisely, is that the pecuniary advantage, to be deducted from the loss of
income while assessing the compensation claimed under the Motor Vehicles
Act must be from a source which correlates to the injury or death arising out of
a motor vehicle accident. The pecuniary advantage which is payable or
derivable on account of death of an employee in harness whether or not such
death is result of motor vehicle accident is not to be deducted from the loss of
income. This principle has been followed by the Hon‟ble Supreme Court in its
later judgments and also by this Court consistently.
6 In the instant case, 50% enhanced pension payable to the family of a
Government employee dying in harness is not co-related to the death arising
out of motor vehicle accident. The amount would be payable under the relevant
SRO even in case of a natural death of an employee in harness. In that view of
the matter, the enhanced benefit of pension payable to the Government
employee, dying in harness, including those dying in motor vehicle accidents
cannot be deducted while calculating the loss of income in motor accident
claims.
7 Finding substance in the submissions made by learned counsel for the
applicant/claimants, I am of the view that the judgment under review to the
extent aforesaid suffers from an error apparent on the face of record.
Accordingly, this review petition is allowed and the judgment dated
26.04.2019 passed in MA No. 261/2017 is recalled to the aforesaid extent.
MA 261/2017
Heard learned counsel for the parties and perused the record.
Admit.
Notice to respondent No.1 only. Mr. Amrit Sarin, learned counsel
accepts notice.
On the analogy of reasons given hereinabove, the judgment dated
26.04.2019 passed in MA No. 261/2017 is modified to provide that the amount
under the head „loss of dependency‟ to which the appellants/claimants would
be entitled to, shall be Rs.16,19,460/-(Rs.14995/- after 1/3rd deduction x12x9)
instead of Rs.2,69,880/-. The amount awarded under other heads shall remain
unchanged.
This order shall be read in continuation to order dated 26.04.2019 passed
in MA No. 261/2017 and shall form part thereof.
(SANJEEV KUMAR)
JUDGE
Jammu
17.08.2021
Sanjeev Whether the order is speaking: Yes
