Om Parkash vs Manohar Singh and Others

J.P. Singh, Judge

The appellant-Om Parkash was awarded Rs.10,22,000/- as compensation for his Permanent Disablement suffered because of the injuries

received while travelling as a passenger in Vehicle No.JKS-7762, which met with an accident because of its driver's rash and negligent driving.

The breakup of the compensation awarded to him by the Motor Accidents Claims Tribunal, Jammu is as under:

For loss of medical expenses : Rs.50,000/-

For loss of income during Rs.1,32,000/-

treatment:

For loss of future income : Rs.5,40,000/-

For pain and suffering : Rs.1,50,000/-

For loss of amenities of life : Rs.1,50,000/-

Not satisfied with the quantum of compensation awarded by the Tribunal, he questioned its Award seeking enhancement therein, by his Appeal

CIMA No.74/2006.

The appellant having died during the pendency of the Appeal, his wife Sushma Devi has filed this Miscellaneous Petition seeking her substitution

as appellant being his legal heir.

The appellant, the Insurer, contests the Application, urging that the right to pursue the Claim made by the injured-appellant, which was purely

personal to him, having extinguished with his death, his wife has no legal right to seek her substitution to prosecute the appellant's Claim in Appeal.

I have heard learned counsel for the parties and gone through the case law referred by them to support their respective submissions.

It is true that in view of the doctrine flowing from the maxim actio personalis moritur cum persona, (he personal cause of the deceased dies with

him and the Legal Representative(s) may not have any right to prosecute it; but the doctrine may not be fully attracted to the facts of the present

case, as the injuries received by the appellant in the accident, had rendered the appellant paraplegic, thereby depriving his dependents of their

sustenance, and in this view of the matter, the claim projected by him for compensation therefor, additionally for the benefit of the dependents,

would not die with him. Even otherwise, appellant's entitlement to compensation for the permanent disablement caused to him, having fructified into

his Estate, with the issuance of Award by the Tribunal during his lifetime, the Legal Representative(s) would be entitled to pursue the cause seeking

enhancement thereto.

This apart, the injuries and the Permanent Disablement caused thereby have tangibly affected the Estate of the deceased and its accretion, the

right to sue would, therefore, survive in respect of the claims pertaining to the Estate of the deceased.

I am supported in taking this view by Melepurath Sankunni Ezhuthassan Vs. Thekittil Geopalankutty Nair, .

The claim made by the appellant for the money incurred on medical expenses and loss of income during treatment would not, thus, perish.

However, the two claims made by him for pain and suffering and loss of amenities of life may not survive for seeking any enhancement in respect

thereof.

The plea of the Insurance Company's Counsel that the Appeal had abated in toto is, therefore, found untenable. Legal Representative(s) of the

appellant are entitled to prosecute the appellant's Appeal, in so for as Claim Nos. 1, 2 and 3 were concerned.

CMP No.781/2010 is, accordingly, allowed directing substitution of Sus-hma Devi as appellant in the CIMA No.74/2006.

Registry to make necessary correction wherever required and list the Appeal for consideration.