U. Mahalakshmi W/O Late U. Kurmayya Vs. the Branch Manager, State Bank of India, - Court Judgment

Excerpt:
- motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer.....ordern. ramamohana rao, j.1. this writ petition has been instituted seeking a declaration that the proposed action of the respondents to recover a sum of rs. 17,169/- from the family pension payable to the writ petitioner as illegal.2. the facts, which are not in dispute, are that the husband of the writ petitioner while working as ammunition repair labourer in the naval armament depot, visakhapatnam, died on 3rd october 1984 leaving the petitioner herein-his wife as the sole surviving family member. since, the husband of the writ petitioner had rendered considerable length of service in the naval armament depot, he is entitled to be paid pension and other terminal benefits, if only he had survived up to the age of superannuation. since, he had died even prior to attaining the age of.....

Judgment:
ORDER

N. Ramamohana Rao, J.

1. This writ petition has been instituted seeking a declaration that the proposed action of the respondents to recover a sum of Rs. 17,169/- from the family pension payable to the writ petitioner as illegal.

2. The facts, which are not in dispute, are that the husband of the writ petitioner while working as Ammunition Repair Labourer in the Naval Armament Depot, Visakhapatnam, died on 3rd October 1984 leaving the petitioner herein-his wife as the sole surviving family member. Since, the husband of the writ petitioner had rendered considerable length of service in the Naval Armament Depot, he is entitled to be paid pension and other terminal benefits, if only he had survived up to the age of superannuation. Since, he had died even prior to attaining the age of superannuation, his widow is otherwise entitled to be paid family pension. The Central Civil Services (Pension Rules) 1972 regulate the grant of pension dealing with the family pension component. Rule-54 Sub-rule-2 made it clear that where a Government servant dies after completion of one year of continuous service, the family of the deceased shall be entitled to family pension amount, which shall be determined in accordance with the table furnished thereunder. Sub-rule 3(a) plays a significant part for resolving the controversy. It reads as follows:

(3)(a)(i) Where a Government servant, who is not governed by the Workmen's Compensation Act, 1923 (8 of 1923), dies while in service after having rendered not less than seven years' continuous service, the rate of family pension payable to the family shall be equal to 50 per cent of the pay last drawn or twice the family pension admissible under Sub-rule (2), whichever is less, and the amount so admissible shall be payable from the date following the date of death of the Government servant for a period of seven years, or for a period up to the date on which the deceased Government servant would have attained the age of 65 years had he survived, whichever is less.

(ii) xxxxxxxxxxxxxxxx.

3. A careful analysis of Sub-rule 3 of Rule 54 of the Rules makes it clear that where a Government servant, who has rendered not less than 10 years of continuous service, dies while in service, the rate of family pension payable to the family shall be equal to 50 per cent of the pay last drawn and the said amount shall be payable from the date following the date of death of the Government servant for a period of seven years, or for a period up to the date on which the deceased Government servant would have attained the age of 65 years, had he survived, whichever is less.

4. It is further asserted that the date of birth of the husband of the writ petitioner was 03-07-1925, consequently, he would have attained the age of 65 years by 03-07-1990, had he survived. Therefore, the petitioner is entitled to be paid family pension at the rate of 50 per cent of the average emoluments drawn by her husband from 04-10-1984 to 03-07-1990 since he had rendered more than ten continuous years of service and thereafter ordinary rate of family pension becomes admissible for her. In the instant case, the family pension at the enhanced rate, namely, 50 per cent of the average emoluments by her husband were continued to be paid till November 1997 and when it was noticed that the writ petitioner is entitled to be paid family pension at enhanced rate up to 03- 07-1990 only, it has been realized that a total sum of Rs. 21,969/- has been paid to her in excess. A certain amount has since been withdrawn and after interlocutory order has been passed by this Court, no recoveries have been effected from the family pension payable to her, as at the time, there was still an outstanding liability of Rs. 17,169/- recoverable from the writ petitioner.

5. The point at issue is as to whether the writ petitioner has contributed in any manner for payment of family pension to her at the enhanced rate by the respondents. Nowhere the material that was brought on record would suggest that she is guilty of any mis-demnor on her part. It is not a case where she had played either active or passive role in any manner in fixation of her family pension at enhanced rate and its continuous payment either. It also appears that the writ petitioner herself is an illiterate person and she can neither read nor write. In these set of circumstances, it would be right to infer that she had not played any role, whatsoever, in the matter of payment of enhanced rate of family pension. Whatever is being paid and deposited into her account, she has been receiving it. It is, therefore, a case of misconduct or an oversight committed at some other end, but not at the end of the writ petitioner. As it is, the family pension is sanctioned and paid only to enable the pensioner to sustain and survive. It is not a huge quantum of money, for one, to also save a substantial part of it. It is, therefore, crystal clear that the writ petitioner could not have kept apart a substantial portion of the family pension paid to her month after month for meeting any of the contingencies, much less, the requirement of having to repay the sum at any later point of time. Nearly Rs. 22,000/-, which has been paid in excess of her entitlement, has been, obviously, been put to use by her under a bona fide impression that the said amount is legitimately due to be paid to her. It is, therefore, wholly inequitable to propose to effect any such recoveries. It has now become a settled principle of law that if no one has played a direct or an active role by way of furnishing misleading information or by way of misrepresentation or by indulging in fraud, but secures any pecuniary advantage, then he becomes a bona fide victim. In these circumstances, he shall not normally be penalized by way of effecting recoveries.

6. The learned Counsel for the petitioner had placed reliance upon a judgment rendered by the Supreme Court to this very effect in Union of India and Ors. v. Rekha Majhi : (2000)IILLJ449SC , in which it has been held as under:

xxxxxxxxxxxxxxx.

Moreover, it is stated that the respondent who is a widow is the lone breadearner of the family and her financial condition is not such as to pay back the excess amount she has already drawn. Under such circumstances, we are of the view that the recovery of excess pension paid to the respondent is not justified on legal and equitable grounds.

7. The present circumstances are indicating the semi indigent position of the writ petitioner, who appears to be squarely dependent upon the family pension component alone for her sustenance. I, therefore, do not find any valid or justifiable ground for effecting or authorizing any recovery to be made from the family pension payable to the writ petitioner.

8. In these set of circumstances, the family pension, which is otherwise payable at reduced rate alone be paid without effecting any recoveries, whatsoever, for the excess amount said to have been paid in the past. It will be appropriate for the 1st respondent to take measures to write off the said excess payment of family pension.

9. With this, the writ petition stands allowed, but, in the circumstances, without costs.