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Judgment
T. Jayarama Chouta, J.—These three appeals arise out of three claim petitions decided by the Subordinate Judge, Ariyalur in a single
accident which have been tried together and passed a common award. Hence, we heard all these appeals together and pass a common judgment.
C.M.A. No. 87 of 1986 arises out of M.C.O. No. 3 of 1984 whereas C.M.A. No. 40 of 1987 is against M.C.O.P. No. 4 of 1984 and
C.M.A. No. 41 of 1987 is challenging the award in M.C.O.P. No. 6 of 1984.
The appellant in C.M.A. No. 875 of 1986 filed a claim petition on the averments that he was working as an Assistant No. 3 in the District Court
of South Arcot at Cuddalore on a salary of Rs. 900/- per month. On 1.12.1993, the petitioner and his friends including the claimants in the other
petitions, were going in an van belonging to the first respondent. When it was nearing Valikandapuram, a lorry belonging to the second respondent
came rashly and negligently from the opposite direction and knocked down the van, as a result of which the van was smashed and the petitioner
and others sustained various injuries. He claimed a total compensation of Rs. 2 lakhs with interest under different heads. Similarly, the appellant in
C.M.A. No. 40 of 1987 claimed a total compensation of Rs. 2,00,000/- on the ground that he is a retired Tahsildar and is working as a Manager
in M/s. Sudha Enterprises, Pondichery drawing a monthly salary of Rs. 1,400/-. The appellant in C.M.A. No. 41 of 1987 claimed a total
compensation of Rs. 1,00,000/- on the allegations that he is an Advocate practising in criminal side and due to the injuries he had sustained during
the accident he is not in a position to sit, walk or travel continuously and it has affected his profession.
In all these claim petitions, the third respondent Insurance Company filed its counter statement contending that the driver of the lorry was not
rash and negligent and disputing the manner of accident and also the quantum of compensation. The first respondent also disputed the Claim
Petitions.
The Tribunal took all the claim petitions together. On behalf of the claimants, six witnesses were examined including the injured and got marked
Exs. A 1 to A 213. No witness was examined on behalf of the respondents. The Tribunal, after conclusion of the inquiry by its order dated
20.9.1985 has proceeded on the basis that the lorry driver was rash and negligent and awarded a total compensation of Rs. 25,000/- in M.C.O.P.
No. 3 of 1984, a compensation of Rs. 15,000/- in M.C.O.P. No. 4 of 1984 and a sum of Rs. 15,000/- in M.C.O.P. No. 6 of 1984 with @ 9%
of interest per annum in all the cases from the date of petition till the date of deposit.
Being not satisfied with the quantum of compensation, the injured have filed the above mentioned appeals for enhancement. Since the
respondents have not challenged the finding regarding negligence by filing independent appeals or cross-objections, we need not go into that
question as it has become final.
In C.M.A. No. 40 of 1986 during the pendency of the appeal, the sole appellant died and his legal representatives have filed three applications
viz., C.M.P. Nos. 11121,11122 and 11123 of 1994 to come on record by condoning the delay in filing the legal representative application and
also to set aside the abatement. Learned Advocate for the respondent, Insurance Company, orally opposed the said applications and contended
that the appeal does not survive after the death of the injured/claimant, as the cause of action does not survive to the legal representatives of the
claimant as the appeal abated. In this regard, he cited two decisions in C.P. Kandaswamy and Others Vs. Mariappa Stores and Others, and
Melepurath Sankunni Ezhuthassan Vs. Thekittil Geopalankutty Nair, In the earlier case, considering the provision of Section 306 of the Indian
Succession Act, the Court has held that the cause of action regarding the disallowed portion of the claim, which was the subject matter in appeal
does not survive after the death of the petitioner/claimant and therefore, appeal abates. The Court has not considered whether the damages or
compensation to the estate of the deceased survives or not. And hence, we see this decision has no application to the present case. The second
decision cited by the learned Advocate for the Insurance Company is that in respect of suit claiming damages for defamation in which the Supreme
Court has held that an appeal against the decree for damages, since the right to sue does not survive in a defamation action, when the appellant
does during the pendency of the appeal, his right to sue does not survive, the appeal will abate and the legal representative will have no right to be
brought on the record to continue the appeal. There in that case, their Lordships have observed the maxim ""actio personalis moritur cum persona"".
Hence, this case is also not applicable to the facts of the present case.
Learned Advocate for the legal representatives of the deceased/appellant invited our attention to a decision in Thailammal and Others Vs. A.V.
Mallayya Pillai and Others, , and confined his claim only to damages to the estate of the deceased which according to him will survive. In that
decision, the High Court has held that the claim of the legal representatives in an appeal when the sole appellant/claimant died during the pendency
of the appeal survives in respect of damages to the estate of the deceased. The said decision also made reference to the decision in C.P.
Kandaswamy and Others Vs. Mariappa Stores and Others, and made a distinction after considering the provisions of Section 110-A of the Motor
Vehicles Act. Since the learned Advocate confines his claim only with regard to the damages to the estate of the deceased, the ratio of the present,
case Thailammal and Others Vs. A.V. Mallayya Pillai and Others, , is applicable to this case. Accordingly, we allow all those three applications
and proceed with the appeal on merits.
In C.M.A. No. 875 of 1986, the Tribunal has granted Rs. 25,000/- against a claim of Rs. 2,00,000/-. The claimant was working as an
Assistant Nazir in the District Court, South Arcot at Cuddalore and was aged 52 years at the time of the accident. Due to the accident, there was
permanent disability, disfigurement and his right hand has become ineffective. He had lost teeth and power in his arm. He was in hospital for more
than 25 days and having physical pain and discomfort. He has lost his promotion and lost his future earning and he was compelled to have
premature retirement. Taking into consideration all these factors, we deem a total sum of Rs. 75,000/- is the proper and just compensation. The
Tribunal has awarded interest at the rate of 9% per annum. But, in view of the recent decision of the Supreme Court, we award @ 12% interest
per annum to the said amount from the date of the petition till realisation.
Now coming to C.M.A. No. 40 of 1986, the Tribunal has awarded a total compensation of Rs. 15,000/- with @ 9% interest per annum. The
injured at that time was aged 59 years, retired Tahsildar working in a private company drawing a salary of Rs. 1,400/- per month. He has claimed
Rs. 2,00,000/-. Since the sole claimant had died during the pendency of this appeal and his legal representatives have confined their claim towards
the loss to the estate at Rs. 70,000/-, we hold a total sum of Rs. 40,000/- with @ 12% interest will be the proper and just compensation. The said
amount should be divided equally by all the appellants. While granting this sum of Rs. 40,000/-, we have taken into consideration the salary, the
period of his earning capacity and also loss to the estate of the original claimant.
Now turning to C.M.A. No. 41 of 1986, the Tribunal has awarded a total sum of Rs. 15,000/- as against the claim of Rs. 1,00,000/-. The
injured claimant is a practising Advocate, having restricted movement of the spinal cord towards all directions and is getting pain during such
movement. X-ray revealed damages to lumbar, spine, impaired function of sciatic nerve and the permanent disability is 25%. He has spent good
amount towards the treatment and medicine. He has produced the bills towards these expenditures. The doctor has given evidence regarding his
treatment and the permanent disability. Taking into consideration all these factors, we fix a compensation of Rs. 30,000/- with @ 12% interest per
annum as just, proper and reasonable.
For the reasons stated above, we allow these appeals in part. In C.M.A. No. 875 of 1986, the appellant is entitled for Rs. 75,000/- while in
C.M.A. No. 40 of 1987, all the appellants are entitled for a total compensation of Rs. 40,000/- which they have to share equally and in C.M.A.
No. 41 of 1987 the appellant is entitled for Rs. 30,000/-. All these amounts will fetch @ 12% interest per annum from the date of petitions till
realisation. There will be no order as to costs in these appeals.