PARVATI ALIAS BABY Vs. HOLLUR HALLAPPA

JUDGEMENT

(1.) THE following questions are referred by a Division Bench of this Court for consideration: (1) Whether the family pension is liable to be deducted out of the compensation determined in the case? (2) Whether in view of the decision of the Supreme Court in N. SIVAMMAL AND OTHERS vs. THE MANAGING DIRECTOR, PANDIAN ROADWAYS CORPORATION AND ANOTHER, air 1985 SC 106 the view taken by this Court in SMT. SHANTHA @ SHANTABAI annappa GADIVADDAR AND OTHERS vs. CHANNABASAPPA DYAMAPPA gadadavar AND ANOTHER M. F. A. No. 457/1993 : 1993 ACJ 850 is correct?

(2.) THE facts leading to the reference are:

(3.) THE claimants contend that family pension is a service benefit. It is paid to the widow or other legal heir because the deceased had served the employer for a specified period and he terms of employment or conditions of service provide for payment of pension to the employee on his retirement and payment of family pension to the legal heir of the employee, on his death. It is not a benefit arising to the family of the employee, out of his death as a result of the motor accident, but is a deferred compensation for the services rendered by him to his employer, before his death. If the deceased had not died in the accident and had continued in service and retired in the usual course, he would have got the benefit of pension; and if the deceased had died a natural death either while in service or after retirement, the widow or other legal heir would have got family pension. There is a clear distinction between benefits arising out of the death of a person and amounts payable on the death of a person. While the former arises out of the death and would not be available without occurrence of the accidental death, the latter are benefits not dependent on the death, but which are independently available and become payable on the death. The genesis for these payments is not in the motor accident death, but in the thrift and saving adopted by the deceased and/or the services rendered by the deceased as an employee. While the benefits of the first kind will have to be taken note of by making suitable deduction while determining the compensation, the payments of the second kind cannot be taken into account for determination of the compensation. Family Pension as also Provident Fund, Gratuity and Life insurance amounts fall under the second category of benefits. Therefore family pension, which is a service benefit payable to the family, on the death of an employee, cannot be treated as a benefit or pecuniary advantage arising by reason of the death, to be taken into account by making suitable deduction while determining compensation. In this behalf, the claimants place reliance on the decision of the Supreme Court in N. SHIVAMMAL v. MANAGING director PANDIAN ROADWAYS CORPORATION, decision of the Delhi High Court in bhagwanti DEVI vs. ISH KUMAR 1975 ACJ 56, the decision of the Himachal Pradesh high Court in RITA ARORA vs. SALIGRAM, 1975 ACJ 420 the Full Bench decision of the punjab AND HARYANA HIGH COURT in BHAGAT SINGH SOHAN SINGH vs. OM sharma 1983 ACJ 203, the decision on the Full Bench of Gauhati High Court in SAMINDER kaur vs. THE UNION OF INDIA 1987 ACJ 7, the decision of the Full Bench of the Madhya pradesh High Court in KASHIRAM vs. RAJENDRA SINGH, 1983 ACJ 152 and the decision of the RAJASTHAN HIGH COURT in SMT. SUNDER vs. HEM SINGH 1993 (2) AJR 173. 3. 1. In SHIVAMMAL's case, the Supreme Court held: