Ramu (since deceased) through L.R. vs H. Ramachandran and Another

K. Venkataraman, J.—The original claimant in M.A.C.T.O.P. No. 298 of 1988 before Motor Accidents Claims Tribunal (Additional District Judge), Cuddalore has filed the appeal before this Court claiming enhanced compensation.

The Motor Accidents Claims Tribunal (Additional District Judge), Cuddalore has awarded compensation of a sum of Rs. 40,000 considering the injuries caused to him and also for pain and suffering due to the said injuries. Since the original claimant felt that the amount is very less compared to the injuries caused to him and for pain and suffering which he has undergone, has filed the present appeal. Pending appeal, the original claimant had died and hence his wife has been brought on record as the legal representative of the deceased original claimant by order dated 4.2.1992 in C.M.P. No. 727 of 1992.

Before deciding whether the present the appellant is entitled to enhanced compensation or not, it has to be decided first as to whether legal representative of the deceased claimant is entitled to maintain the present appeal or not?

Ms. Saritha, learned Counsel appearing for the appellant, contended that since the original claimant has already filed the appeal and before the appeal could be entertained, he died and hence, the legal representative, namely, the wife of the deceased original claimant is entitled to maintain the appeal. The learned Counsel for the appellant has cited the decision reported in Chandrakant Soni Vs. Mukesh Sahu and Others, , wherein it has been held as follows:

(8) Thus, summing up all it will have to be concluded that in controversies arising out of award passed by Motor Accidents Claims Tribunal, the right to sue is available to legal representatives of the deceased claimant.

(9) The present matter is revolving around yet another different point and that is whether such legal representatives have the right to claim enhancement of compensation by contesting the appeal further after the death of original claimant. Mr. Dandvate has argued that right to get enhanced compensation is a personal right available to such claimant only and it dies along with death of the claimant. Mr. Patwa submitted that when such right was available to legal representatives right to have enhanced compensation should also be available to them. In logical corollary it will have to be concluded that when right to get compensation is available to legal representatives by prosecuting further the claim or the appeal, right to get enhanced compensation should also be available to them.

(10) Thus, in view of the discussion above, I come to the conclusion that the appeal does not abate and the legal representatives of the deceased appellant are entitled to get themselves on record and pursue with this appeal...

Yet another decision cited by learned Counsel for the appellant is reported in Nurani Jamal and others Vs. Naram Srinivasa Rao and others, , wherein it has been held as follows:

(19) Therefore, I have no hesitation to hold that in all cases cause of action survives where there is loss to estate of the plaintiff...

Per contra, learned Counsel appearing for respondent No. 2, which has been adopted by learned Counsel for respondent No. 1, submitted that on the death of the original claimant, who has filed the appeal, the legal representatives cannot maintain the appeal. The learned Counsel has drawn my attention to the decision reported in Chisalal (deceased by L.R''s) Vs. Nihal Singh and Others, , wherein it has been held as follows:

It is, thus, clear that it may not be permissible for the legal representatives of the deceased claimant who died during the pendency of the appeal, to prosecute the appeal for enhancement of compensation in respect of injuries sustained by the deceased claimant against the respondents, as is the case here, but the legal representatives of the deceased claimant are certainly entitled to the award of compensation already made by the Tribunal in favour of the claimant before his death and to prosecute this appeal for fixing the liability of payment among the respondents inter se.

Thus, according to the learned Counsel, the award of compensation made in favour of the injured-claimant before his death forms a part of his estate. However, the cause of action for enhancement of compensation does not survive on the death of injured-claimant during the pendency of appeal. Hence, legal representative of the deceased claimant cannot maintain the appeal.

The learned Counsel for respondent No. 2 has cited another decision reported in Managing Director, Pandian Roadways Corporation v. S. Rajalakshmi 2000 (IV) CTC 528, wherein this Court has held as follows:

The contention of learned Counsel for the appellant is that the death of the claimant was not due to the accident and as such the legal representatives of the claimant were not entitled to be compensated in respect of the personal injuries suffered by the deceased claimant. Reference is made to a judgment of K. Venkataswami, J., as he then was, in Pushpam Vs. Nirmala and Another, . In that case, after analysing the earlier decisions, the learned Judge had observed that there was a distinction between a case of death over which the legal representatives could maintain a claim for compensation and the case of the personal injuries suffered by the claimant. In this context, I have also considered the judgment of the Supreme Court reported in Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair 1986 ACJ 440 (SC) and M. Veerappa Vs. Evelyn Sequeira and Others, . A Division Bench of this Court has also held in C.P. Kandaswamy v. Mariappa Stores 1974 ACJ 362 (Mad), that in the case of an injured-claimant the cause of action will not survive in respect of the legal representatives of the claimant. In all the above decisions, the Division Bench as well as the Supreme Court had taken note of Section 306 of the Indian Succession Act and have held that claim for compensation in respect of personal injuries will not be available for the legal representatives provided the death was not caused as a result of the accident. The Supreme Court has also pointed out that the position would be different if the suit for damages had resulted in a decree in favour of plaintiff in which case the decree amount would form part of the estate of the deceased to which the legal representatives would be entitled to. But where no such decree has been passed, the legal representatives of the claimant will not be entitled to compensation due towards personal injuries are concerned.

Thus, according to the learned Counsel for the respondents, the legal representative of the deceased original claimant cannot maintain the appeal.

Further, the learned Counsel for the appellant contended that considering the nature of injuries and the extent of pain and suffering undergone by the original claimant, award of a sum of Rs. 40,000 as compensation is very meagre. Per contra, the learned Counsel for the respondents contended that learned Tribunal has taken into consideration the nature of injuries and the pain and suffering that claimant has undergone and has awarded a sum of Rs. 40,000 as compensation which is just and reasonable.

Before deciding whether the Tribunal has awarded just and reasonable compensation, let me first decide whether the legal representative of the original claimant, who has filed the appeal, can proceed with the appeal or not. Claims Tribunal has awarded compensation of a sum of Rs. 40,000 considering the nature of the injury caused to and the pain and suffering undergone by the original claimant. Since it is a personal injury which has been caused to the original claimant for which compensation has been awarded by the Tribunal, the legal representative would at best be entitled to the compensation awarded by the Claims Tribunal, but she cannot proceed with the appeal in respect of enhancement of the compensation more particularly when the compensation has been awarded under the heads of injuries and pain and suffering. The relief claimed for pain and suffering undergone and the injuries sustained by the injured-claimant is being personal and he alone can question the award of compensation by the Tribunal as very low. The legal representatives cannot prosecute or proceed with the appeal which has been instituted by the deceased claimant. The >compensation in respect of the personal injuries will not be available for the legal representatives of the claimant, provided the death was not caused as a result of the accident.

Furthermore, the Claims Tribunal, considering the nature of injuries caused to the deceased original claimant and also considering the pain and suffering undergone by the him, has awarded a consolidated amount of Rs. 40,000. The said order of the Tribunal cannot be considered to be erroneous.

Thus, the order of the Motor Accidents Claims Tribunal (Additional District Judge), Cuddalore dated 5.9.1989 made in M.A.C.T.O.P. No. 298 of 1988 is hereby confirmed and civil miscellaneous appeal is dismissed. No costs.