Indraj and Others vs Naresh Kumar and Others

N.K. Agrawal, J.—A petition claiming compensation under the Motor Vehicles Act was filed by Smt. Shanti Devi before the Motor Accident Claims Tribunal, Sirsa (for short, the Tribunal) on March 17, 1994. She demanded compensation for the injuries sustained by her in the motor accident, which had taken place on October 24, 1993. After filing the claim petition, she died on April 8, 1997. Her husband and two sons being her legal representatives filed an application before the Tribunal for being impleaded as petitioners in her place. The respondents opposed the application with the plea that the cause of action and right to sue did not survive after the death of the claimant and the claim petition had abated.

The plea put forward by the respondents was accepted by the Tribunal and it was held that the claim petition had abated.

Learned Counsel for the appellants has argued that even if Shanti Devi, the claimant, had died not due to the injuries suffered in the Motor Accident but due to some other cause, the right to sue would survive insofar as loss to the estate of the deceased was concerned, it is explained that Shanti Devi had, in her claim petition, demanded compensation not only for pain and sufferings but also in connection with the expenditure incurred by her on medical treatment and medicines.

Learned counsel has contended that the legal heirs of the claimant could pursue the pending claim for compensation on account of pecuniary loss caused to the deceased claimant as a result of the motor accident. If there was any loss to the estate of the deceased, the cause of action survived. Since the deceased had suffered economic loss also and she had already, prior to her death, initiated action, the beneficiaries may be allowed to recover the same from the person responsible for causing that loss. Damages actually suffered by the deceased in consequence of the motor accident are recoverable by the Iegal heirs.

Learned counsel for the appellants, in support of his contention; has placed reliance on a decision of the Andhra Pradesh High Court in Kongara Narayanamma and Ors. v. Uppala China Simhachalam and Ors. 1975 A.C.J. 448. It was held in that case that where an application claiming compensation was filed by the injured and the injured died pending disposal of the application, the legal representatives of the deceased could claim compensation for loss to the estate of the deceased.

This Court in Calcutta Insurance Ltd. Vs. Bhupinder Singh and Others, , examined a similar question whether the legal representatives can be allowed to continue the application filed by a claimant who had died during the pendency of the proceedings. It was held that right to claim compensation for personal injuries dies with the death of the injured in that case, an application u/s 110-A of the Motor Vehicles act was filed by Kartar Singh claiming an amount of Rs. 20,000/- on account of physical and mental pain suffered by him as a result of the injuries which he had sustained in a motor accident. After the death of Kartar Singh, his legal representatives filed an application for being brought on the record. This Court noticed that Kartar Singh''s demand was limited to compensation for personal injuries, both physical and mental. The right to make the claim being personal to him died with him and cannot be said to have survived to anyone. It was for this reason that it was held that the legal representatives were not allowed to pursue the claim. It would be seen that there was no claim regarding any loss to the estate of the deceased and the entire claim related to physical and mental pain suffered by the injured as a result of the injuries.

In Joti and Ors. v. Chaman Lal and Ors. (1984)86 P.L.R. 723, this Court had again an occasion to consider a case of abatement. The maxim actio personalis moritur cum persona was examined and it was held that the right to sue, after the death of the injured during the pendency of his claim case which included loss of property, survived to the legal representatives in respect of the claim on account of loss of the estate of the deceased. In that case, it was noticed that part of the claim undisputediy related to the loss which affected the estate of the deceased.

Learned counsel for the respondents has, on the other hand, contended that action for personal injuries would abate with the death of the injured and would not survive to the legal heirs. Claim for physical and mental pain would also not survive, in support of his contention, the learned counsel has placed reliance on a decision of Orissa High Court in Mandari Bewa and Ors. v. Jagabandhu Ghadei and Anr. 1987 A.C.J. 1084. That was a case where the claimant was injured in an accident and he filed a claim application. He died during the pendency of his claim application. The claimant continued to undergo treatment for his injuries till his death. His legal representatives filed a fresh claim application. The Tribunal took the fresh claim application as a petition for substitution and dismissed the claim as abated. It was held that the injured claimant''s claim had abated but the fresh claim application filed by the legal representatives would, as a separate proceeding, continue as per law. The facts of the above case do not help the respondents as the facts are quite distinguishable.

Learned counsel for the respondents has also relied upon a decision of the Karnataka High Court in S. Muniyappa v. H.L. Narasimhaiah and Ors. 1984 A.C.J. 299. That was a case where the claimant had sustained injuries and was awarded compensation. He preferred appeal for enhancement of compensation but died during the pendency of his appeal. It was held that the appeal filed by the victim did not survive. However, the decree that was already passed by the trial Court in favour of the injured endured to the benefit of the legal heirs as representing the estate of the deceased and they would be entitled to defend it in case that was challenged by the other side by filing an appeal, for the legal heirs have the right to defend the estate of the deceased. But, the appeal filed by the claimant would not survive, for the appeal was instituted by the injured claimant himself for enhancement of compensation and that right died with him. The facts of that case also do not help the respondents. The ratio, as laid down in that case, however, makes it explicit that a right would survive if it has resulted in some benefit to the estate of the deceased.

In a Full Bench case in Kannamma Vs. Deputy General Manager, , the Karnataka High Court has taken a view that a pending claim by a person for compensation for personal injuries did not survive on such person''s death not caused as a consequence of personal injuries. If a claim of a person for compensation for personal injuries has resulted in award or a decree, that would survive to his legal representatives on his death even if such death is not the consequence of his personal injuries sustained by him. It was also held that where claim petition is presented by a person sustaining bodily injuries in a motor accident claiming compensation towards expenses, loss of income, etc., it cannot, on such person''s death occurring not as a result or consequence of bodily injuries, be prosecuted by his legal representatives. However, where the death occurred as a result or consequence of bodily injuries sustained in the motor accident, the claim petition, on such person''s death, can be prosecuted by his legal representatives only insofar as the claim for compensation relates to loss to the estate of the deceased person due to bodily injuries sustained in the motor accident.

On a consideration of the controversy, it is clear that a claim petition would not abate on the death of the claimant insofar as the claim relates to the pecuniary loss caused to the deceased as a result of the motor accident. If there was any loss to the estate of the deceased, cause of action would survive. If the deceased suffered economic loss also and had initiated action prior to his death, the beneficiaries shall be allowed to recover the same from the persons responsible for causing that loss. Loss to the estate may include loss of earnings of the deceased and loss to her property. On their substitution, the legal representatives shall be permitted to prosecute only that part of the claim of the deceased, which related to the loss to her estate.

Shanti Devi, the claimant, had, -in her claim petition, demanded compensation not only for her pain and suffering but also in connection with the expenditure incurred by her on the medical treatment and medicines. Therefore, cause of action would survive to the extent of economic loss.

We are inclined to take the same view as in Joti and Ors. case (supra) and we hold that on the death of Shanti Devi, the claimant''s right to sue survived to her legal representatives in respect of compensation on account of loss to the estate of the deceased.

The appeal is, therefore, allowed. The order of the Tribunal dated September 12, 1997, is set aside and the matter is remitted to the Tribunal to permit the legal representatives of the deceased claimant, Shanti Devi, after having been substituted in her place, to prosecute the claim petition in order to prove that there was loss to the estate of the deceased on account of the motor accident. No order as to costs.

The parties shall appear before the Tribunal on October 12, 1998.