Madhya Pradesh High Court
G.M., Madhya Pradesh State Road Trans. ... vs Pushpa Devi And Ors. on 29 April, 1994
Equivalent citations: 1995ACJ208
JUDGMENT S.K. Chawla, J.
1. An award for Rs. 61,000/- having been passed by Claims Tribunal on account of compensation for bodily injuries suffered in a motor accident, the present appeal has been filed by the owners of the vehicle seeking reduction of compensation. A cross-objection was filed by the claimant-respondent Munna seeking enhancement of compensation to Rs. 1,50,000/-.
2. Claimant-respondent Munna died during the pendency of the present appeal and his legal representatives being his widow and children were brought on record as respondents.
3. It was first canvassed by Mr. R.D. Jain, learned Counsel for the appellants, that with the death of claimant-respondent Munna during the pendency of the present appeal, the claim for compensation for bodily injuries, being cause of action for "personal injuries not causing the death" within the meaning of Section 306 of the Indian Succession Act, did not survive on the death of the injured and hence, the present respondents, being the legal representatives, are not entitled to any compensation. In other words, the award of Rs. 61,000/- deserves to be set aside after the death of claimant-injured. Reliance was placed by Mr. Jain on the decisions in Joti Ram v. Chaman Lal 1984 ACJ 645 (P&H), New India Assurance Co. Ltd. v. H. Siddalinga Naika 1985 ACJ 89 (Karnataka) and Legal representatives of Om Prakash Maya v. Mahendra Pal 1989 ACJ 1114(Rajasthan).
4. There is no force in the above contention raised by Mr. Jain. The above decisions would themselves show that part of the claim for compensation for personal injuries, which pertains to the loss to the estate of the injured, does not abate but survives to his legal representatives. Only such items of claim which are, for example, for mental agony, disablement, etc., do not survive on the death of the injured.
5. Secondly, the passing of the award changes the entire complexion. Once an award is made, the cause of action merges in the award and the award forms part of the estate of the injured. As such, on the death of the injured, the award devolves on the legal representatives of the deceased with the result that in the appeal from the award the question involved is about benefit or detriment to the estate of the deceased, which his legal representatives are entitled to uphold and defend. They are, therefore, entitled to be substituted in place of the deceased claimant-respondent and to defend the award. See Ghisalal v. Nihalsingh 1992 ACJ 181 (MP), which is a decision of this High Court in which the ratio of Supreme Court decision in Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair 1986 ACJ 440 (SC), was applied.
6. It is, therefore, wrong to say that after the death of the claimant-injured in appeal, nothing has survived to his legal representatives. On the other hand, the award of Rs. 61,000/- which had already become part of the estate of the injured has survived to the legal representatives. They are entitled to defend that award in this appeal filed by the owners.
7. But the claim for enhanced compensation on account of bodily injuries other than for loss to the estate of the injured, contained in the cross-objection would not survive after the death of the injured. There are two decisions on the point. In the decision of New India Assurance Co. Ltd. v. H. Siddalinga Naika 1985 ACJ 89 (Karnataka), after securing an award of Rs. 61,970/- on account of compensation for bodily injuries suffered in a motor accident, the injured filed an appeal for enhancement, but died during the pendency of the appeal. It was held that after his death his claim for enhanced compensation abated. In the second decision of Ghisalal, 1992 ACJ 181 (MP), where after securing an award of Rs. 27,300/- for compensation for bodily injuries suffered in a motor accident, the injured brought an appeal for enhancement of compensation and also for reversal of the finding whereby the Tribunal exonerated the insurance company from payment of the amount of award, and the claimant-appellant died during the pendency of the appeal, it was held by single Bench of this Court that the cause of action for enhancement of compensation did not survive on the death of the injured-claimant to his legal representatives who could not prosecute the appeal for enhancement of compensation; although the right to prosecute the appeal did survive to the legal representatives for obtaining a decision as to share of liability among the respondents inter se. These decisions do not make any distinction between claim for enhanced compensation which may be for loss to the estate of the injured and claim for enhanced compensation other than for loss to the estate of the injured. The dicta of the aforesaid decisions may be confined to the latter category of claim for enhanced compensation and it may be said that this category of claim does not survive on the death of the injured so that cross-objection pertaining to that part has to be dismissed.
8. Considering the merits of the present appeal and that part of the cross-objection which consists of claim for enhanced compensation, comprising loss to the estate of the injured, it appears that the Claims Tribunal awarded Rs. 10,000/- for pain and suffering suffered by the injured, Rs. 48,000 for loss of earnings, Rs. 1,000/- for expenses on medicines and Rs. 2,000/- towards cost of future inevitable medication, making a total of Rs. 61,000/- to the injured-claimant Munna, who was a passenger in the bus of the appellants. It appears that injured Munna had suffered compound fractures of tibia and fibula in both his legs. He was twice admitted in Government hospital. Third time he was admitted in a private hospital where nails were inserted in both of his legs. Subsequently, it was found that the bones were united in mal-position. Dr. A.K. Dubey, PW 5, deposed that Munna again needed surgery. It was also his evidence that Munna could not run and walk quickly. There was restriction of flexion of movement of knees to the extent of 25 degrees. Munna could not stand continuously for a long time. He had become permanently disabled. It has also appeared in the evidence that Munna was aged 28 years at the time of the accident and earned his living by running a musical band. Because of the injuries suffered by him, Munna would not be able to himself play the musical instruments though he could continue to engage other musicians for musical band. The earning was found to have been seriously affected. It does not appear that compensation awarded under the various heads given above was too excessive or too low to need interference. The Claims Tribunal applied the multiplier of 15 to the annual loss of earnings of the injured. It does not appear that this figure of multiplier was unreasonably chosen. In fact, the death of the injured has occurred now, as a fact, after about ten years of the accident. There is no warrant either to increase or decrease the quantum of compensation awarded by the Claims Tribunal. The appeal, as also the cross-objection, deserve to be dismissed.
9. It may be stated here that there is one more hurdle in considering the cross-objection for enhanced compensation. The driver of the offending vehicle is not a party in this appeal. Unless the driver's liability to pay compensation is enhanced, there can be no enhancement of the liability of the appellants, whose liability is only vicarious. It is true that the driver died and so the owners of the vehicle did not implead him as a party in this appeal. But there was no justification for not impleading those who represented the driver's estate. This defect effectively prevents the cross-objection for enhancement being considered in the present case.
10. For the foregoing reasons, the present appeal, as also the cross-objections, are dismissed. No order as to costs.