Karnataka High Court
Sri. Gangappa S/O Basavanneppa ... vs Sri. Mohan S/O Chanabasappa Angadi on 28 November, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 28th day of November, 2012
Before
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
Miscellaneous First Appeal No. 22719/2010 (MV)
BETWEEN:
1 Sri Gangappa
S/o Basavanneppa Doddawadi
Age: 35 years, occ: coolie
Now nil, r/o lNagarhal,
P.O: K.K.Koppa
Tq: Dist: Belgaum
- since deceased, by his L.Rs.
1(a) Smt.Renuka
w/o Gangappa Doddawadi
age: 40 years, occ: household work
r/o Nagarhal, PO: K.K.Koppa
Tq: & Dist: Belgaum
1(b) Kumar Shivappa
s/o Gangappa Doddawadi
age: 17 years, occ: student
r/o Nagarhal, PO: K.K.Koppa
Tq: & Dist: Belgaum
...Appellants
(By Sri Harish S Maigur, Advocate)
:2:
AND :
1 Sri Mohan
S/o Chjanabasappa Angadi
Age: major, occ: business
R/o Nagarhal, PO: K.K.Koppa
Tq & Dist: Belgaum
2 The Oriental Insurance Co.Ltd
By its Divisional Manager
Shanbhag Chambers
Kirloskar Road
Belgaum ...Respondents
(By Sri. Laxman B Mannoddar, Advocate for R-2
R-1 served and unrepresented)
----------
This miscellaneous first appeal is filed under
Section 173(1) of the Motor Vehicles Act against the
judgment and award dated 20.04.2009 passed in MVC
No.3052/2005 on the file of Fast Track Court IV and
MACT, Belgaum abating the petition filed under Section
166 of Motor Vehicles Act.
This appeal coming on for orders this day, the
Court delivered the following:
JUDGMENT
This appeal is by the claimants questioning correctness and legality of judgment and award passed by Fast Track Court-IV and MACT, Belgaum in MVC :3: No.3052/2005 dated 20.04.2009 whereunder claim petition filed by deceased Gangappa Doddawadi under Section 166 of Motor Vehicles Act, 1988 prosecuted by his legal heirs namely, wife and son having been dismissed as abated.
2 Heard Sri Harish S Maigur, learned Advocate appearing for appellants and Sri Laxman B Mannoddar, learned Advocate who has accepted notice on behalf of respondent No.2. Respondent No.1 is served and unrepresented.
3 Facts in brief are as under:
One Sri Gangappa Doddawadi filed a claim petition under Section 166 of Motor Vehicles Act, 1988 claiming compensation of Rs.8 lakhs contending that while he was proceeding in a motor cycle owned by first respondent and insured with second respondent as a pillion rider, said vehicle met with an accident on account of which, he sustained injuries and as such :4: claiming compensation. Said petition was filed on 28.11.2005. During the pendency of claim petition, Said Gangappa Doddawadi expired on 14.09.2006 which was not as a result of injuries sustained. Wife and son of deceased Gangappa Doddawadi were brought on record and they contended that they are entitled to maintain said claim petition filed by deceased Gangappa Doddawadi and entitled to seek compensation towards loss of estate including medical expenses incurred and loss of income during treatment though not towards dependency and other general damages.
4 This was resisted by second respondent-Insurance company contending that during the pendency of proceedings, Gangappa Doddawadi had expired for reasons other than the injuries sustained in the accident and entire petition abates in toto and his legal representatives cannot even claim loss of estate.
:5:5 After analysing the case laws relied upon by learned Advocates appearing for the parties, Tribunal, referring to Full Bench judgment of this Court in the case of KANNAMMA vs DEPUTY GENERAL MANAGER, KSRTC reported in 1991 ACJ 707 held that legal representatives of deceased Gangappa Doddawadi cannot prosecute the petition filed by him by assigning reason of death which had occurred not as a result or consequence of bodily injuries sustained by him in a motor cycle accident and accordingly held petition has abated.
6 The question by way of reference which came up before Full Bench in KANNAMMA's case referred to supra reads as under:
"Whether, in a claim petition presented under Section 110-A of the Motor Vehicles Act, 1939, claiming compensation for personal injury resulting from a motor accident as also :6: compensation towards expenses incurred and towards loss of income etc., if the claimant dies during the pendency of the petition, his legal representative can come on record and continue the proceedings?"
7 After analysing various provisions of the statute, namely, Motor Vehicles Act, their Lordships have concluded by answering the reference as under:
"11. However, before answering the question referred for decision by the Full Bench, one important aspect, which directly bears on the question, needs consideration. A person, who has sustained injury in a motor accident, is entitled to make a claim for compensation for such injury in person or through his/her authorised agent as provided for under Clause (a) or Clause
(c), as the case may be, of Sub-section (1) of Section 110A of the Act. Such person or an authorised agent is also entitled to make a claim for compensation for loss of his/her property in the same motor accident as provided for under Clause (aa) of Sub-
section (1) of Section 110A of the Act, apart and distinct from his/her claim for personal (bodily) injury. When the person making claims for compensation both for personal injury and loss of property dies, there can be no :7: impediment for legal representatives of such person to prosecute the claim for compensation for loss of property as surviving to them. In so far as such person's claim for compensation for personal injuries is concerned, the same cannot, on his/her death, not occurring as a consequence of personal injuries, survive to his legal representatives because of the Common Law Rule 'actio personalis moritur cum persona' found embodied in Section 306 of the Succession Act. Then, does such person's claim for personal injuries survive on his death occurring as a consequence or result of personal injuries, to his/her legal representatives, is the important aspect needing consideration. Clauses (b) and (c) of Sub-section (1) of Section 110A of the Act, in express terms, entitle the legal representatives of a person who dies as a result of (motor) accident to claim compensation for such death. A person dying as a result of the accident, cannot mean anything other than the person dying as a result of personal (bodily) injuries sustained by him/her in the accident. If the death of the person occurs instantaneously as a result of severe bodily injuries sustained by him in the motor accident, there would be no scope for such person's legal representatives to claim compensation for his/her personal injuries. But if the death of the person, undoubtedly, occurs as a result of bodily injuries :8: sustained by him/her in the (motor) accident, but belatedly, say, after four months, when still in an hospital obtaining medical treatment, law enables his/her legal representatives to claim compensation under various heads, such as, expenses incurred for obtaining medical treatment for him/her, loss of his/her earning between the date of accident and the date of death, pain and suffering undergone by him/her due to bodily injuries sustained. If claim for compensation under such heads made by the person injured or his/her authorised agent is pending adjudication either before the Claims Tribunal or an Appellate Court, there can be no valid reason, as to why, on such person's death, such claim for compensation shall not survive to his/her legal representatives and they be permitted to prosecute the claim as loss suffered by the estate of the deceased. Claim for such compensation made by the person injured as loss to his/her estate on his/her death must be regarded as surviving, for even otherwise they would be entitled to make a claim in that behalf on the death of the person injured as a consequence of bodily injuries sustained in the motor accident as provided for under Clauses (b) and (c) of Sub-section (1) of Section 110A of the Act. This would be the correct legal position, which becomes evident when seen from yet another angle, to wit, the :9: cause of action for claim for compensation for personal injuries by the person injured and the cause of action for the claim for compensation for the death of the person injured as a consequence of such injuries, by his legal representatives, is common - the motor accident caused by the tort- feasor. A Division Bench decision of the Calcutta High Court in Piriska Rozaria's case (supra), AIR 1969 Calcutta 595, which is referred to while examining Kongara Narayanamma's case (supra), 1975 ACJ 448, can be said to have given recognition to the said position of law when it has held in deciding the case before it that a claim for compensation made under Clause (a) of Section 110A(1) of the Act for personal injuries could be prosecuted on the death of the claimant by his legal representatives if such death had ensued or occurred as a consequence or result of the physical injuries sustained by him in the motor accident, provided such claim did not come in conflict with that made by the legal representatives under Clause (b) of Section 110A(1) due to death of the claimant, occurring as a result of the injuries sustained by him in the motor accident. It can, therefore, be concluded that a person's claim for compensation for personal injuries under the head loss to his/her estate, can, on his/her death as a consequence of such injuries, be prosecuted by his/her legal representatives, if they do not include a : 10 : claim for compensation under that head, as and when they file a claim petition under Clause (b) of Sub-section (1) of Section 110A of the Act, on the death of the person injured "12. In the result, the Full Bench answers the question referred for its decision by the Division Bench, thus: (i) a claim petition presented under Section 110A of the Motor Vehicles Act, 1939, by the person sustaining bodily injuries in a motor accident, claiming compensation for personal injuries as also for compensation towards expenses, loss of income, etc., (loss to estate) cannot, on such person's death occurring not as a result or consequence of bodily injuries sustained from a motor accident, be prosecuted by his/her legal representatives; but (ii) a claim petition presented under Section 110A of the Motor Vehicles Act, 1939, by the person sustaining bodily injuries in a motor accident, claiming compensation for personal injuries as also for compensation towards expenses, loss of income, etc., (loss to estate) can, on such person's death occurring as a result or consequence of bodily injuries sustained in the motor accident, be prosecuted by his/her legal representatives only in so far as the claim for compensation in that claim petition relates to loss to estate of the : 11 : deceased person due to bodily injuries sustained in the motor accident 8 It has been held in the above Full Bench Judgment that when claim petition under Section 110-A of the Motor Vehicles Act, 1939 is filed by a person sustaining bodily injuries in a motor accident and claims compensation for personal injuries, compensation for expenses incurred, loss of income tc., on such person's death occuring which was not as a result or consequence of bodily injuries sustained cannot be prosecuted by his/her legal heirs. However, from a motor accident claim petition filed by a person sustaining bodily injury in a motor accident, claims compensation for personal injuries as also towards loss of income etc., on such person's death which "occurred as a result or consequence of bodily injuries sustained in a motor accident" can be prosecuted by his/her legal heirs only insofar as claim for compensation under the : 12 : claim petition which relates to the estate of deceased person only.
9 In fact said judgment in KANNAMMA's case came up for consideration before another Full Benchin the case of UTTAM KUMAR vs MADHAV reported in 2006(1) ACJ 378 and it was held as follows:
"8. In the instant case what is to be seen is whether there is any inconsistency between the provisions of Section 166 of the MV Act and Section 306 of the I.S. Act for the LRs of the deceased who died as a result of the accident to claim compensation or pursue their remedies.
9. A bare reading of the above Section 166 clearly reveals that in case of an accident a person who sustains injury can make application for compensation before the Claims Tribunal and if any death has resulted from the accident, any or all LRs can be brought on record and can pursue under Section 166(l)(c). Hence, in case of death resultant of the accident the LRs of the deceased can file claim petition. So also it is clear from Section 306 of the I.S. Act that cause of action survives to and against the executors or : 13 : administrators of the deceased whose death is the result of the personal injuries sustained in the accident already stated.
14. On overall consideration and as discussed above, we are in full agreement with the well reasoned order made by the Full Bench since that part will not say anything regarding Section 306 of the I.S. Act and it is not necessary to go into the observation. It is also not necessary to go into the question of fact as alleged by the LRs that the deceased died due to the injuries sustained in the accident and that question can only be considered while considering the compensation. We answer the reference in the affirmative and fully approve the earlier Full Bench decision in Kannamma's case, 1991 ACJ 707 (Karnataka) , as stated. The reference is answered accordingly. Reference is answered."
Thus, agreeing with the view expressed in KANNAMMA's case, their Lordships have also held that claim petition would be maintainable and can be prosecuted by L.Rs.
of deceased claimant only in the event of claimants death occurring as a result or consequence of bodily injuries sustained in the road accident.
: 14 :10 In the background of case law analysed, let me examine as to whether death of claimant in the instant case was on account of bodily injuries sustained in the road accident that occurred on 02.10.2005.
11 In the instant case, it is not the case of claimants that deceased Gangappa Doddawadi expired on account of bodily injuries sustained in the motor accident that occurred on 02.10.2005 or death occurred as a result or consequence of such bodily injuries sustained in the motor accident that occurred on 02.10.2005. Their lordships while giving a finding at paragraph 12 have in categorical terms clearly held that claim petition filed by deceased cannot be prosecuted or continued by legal heirs of deceased if cause of death was not on account of bodily injuries sustained in the road accident but they would be entitled to maintain or prosecute the claim petition only in the event of death occuring on : 15 : account of bodily injuries sustained in the road accident and only for claiming compensation relating to loss of estate.
12 Perusal of the amended claim petition which was made available to the Court by learned Advocate appearing for appellant would disclose that there is no whisper made in the said amended claim petition that death of Gangappa Doddawadi was as a result or consequence of injuries sustained in the road accident that occurred on 02.10.2005. Though a suggestion is put to the wife of the deceased claimant that death of Gangappa was not on account of bodily injuries sustained in road accident that occurred on 02.10.2005, in her cross examination by learned Advocate appearing for Insurance Company she has denied said suggestion. However, that cannot form the basis or foundation to contend now in the present appeal that deceased Gangappa Doddawadi expired due : 16 : to the injuries or as a result or as a consequence of injuries sustained in a road accident that occurred on 02.10.2005. Nowhere in the present appeal it has been contended that Gangappa Doddawadi died or expired as a result or as a consequence of injuries sustained in road accident that occurred on 02.10.2005. Hence, it would be too late in the day to raise such contention.
13 Yet another factor which requires to be noticed is that accident occurred on 02.10.2005 and Gangappa Doddawadi expired on 14.09.2006. Neither in the amended claim petition nor in the appeal memorandum a plea has been raised by the claimants/appellants that Gangappa Doddawadi's death was due to result or consequence of injuries sustained in the road accident that occurred on 02.10.2005.
14 At the cost of repetition, as noticed herein above, it is specifically contended by claimants themselves that : 17 : death of Gangappa Doddawadi was not as a result or consequence of bodily injuries and as such, I am of the considered view that Tribunal was fully justified in rejecting claim petition as having abated. There is no infirmity in the judgment and award passed by Tribunal.
Hence, appeal stands dismissed. No costs.
This Court places on record its appreciation to Sri S K Kayakmath, learned Advocate for his erudite assistance rendered as Amicus Curiae.
Sd/-
JUDGE *sp