Allahabad High Court
Smt. Saroj Sharma vs State Of U.P. And Others on 14 July, 2014
Equivalent citations: 2015 AAC 930 (ALL), (2014) 142 ALLINDCAS 925 (ALL), 2015 (1) ALL LJ 613, (2015) 4 ALLMR 49 (ALL), (2014) 6 ADJ 360 (ALL), (2014) 4 TAC 393, (2014) 7 ADJ 331 (ALL), (2015) 4 ACJ 2212, (2014) 106 ALL LR 88, (2014) 5 ALL WC 4776, (2015) 2 CURCC 512
Author: Rajan Roy
Bench: Sheo Kumar Singh, Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR (Judgment reserved on 20.05.2014) (Judgment delivered on 14.07.2014) Case :- WRIT - C No. - 44673 of 2008 Petitioner :- Smt. Saroj Sharma Respondent :- State Of U.P. And Others Counsel for Petitioner :- K.P. Verma Counsel for Respondent :- C.S.C. Hon'ble Rajan Roy,J.
By means of this writ petition, a challenge has been made to the order dated 30.08.2007 passed by the Motor Accident Claims Tribunal in M.A.C.P. No.195 of 2005, Radhey Shyam Sharma Vs. Mohd. Kasim and others, whereby the application for substitution filed by the petitioner herein along with the application for condonation of delay have been rejected on the ground that the claim petition having been filed by the claimant on the basis of a personal injury, the same stood abated on his death and the right to sue did not survive in favour of legal heirs/ representatives.
The facts of the case in brief are as under:
On 09.02.2005, an accident took place in which late Radhey Shyam Sharma sustained injuries. Based on these injuries, Sri Sharma filed the above mentioned claim petition seeking compensation to the tune of Rs.16,50,000/- under various heads plus 18% interest per annum thereon. Sri Sharma subsequently met with another accident and consequent thereto died on 09.06.2005. It is not in dispute that the death of Sri Sharma was not on account of the injuries sustained by him in the first accident, which took place on 09.02.2005. In the above mentioned claim petition, a written statement was filed by the Insurance Company on 24.11.2005, inter allia, stating that the claimant had already died and the petition had abated. Subsequently on 12.01.2006, an application for substitution was filed by the petitioners as the legal heirs of Sri Sharma along with an application for condonation of delay in filing the same. Objections to the aforesaid application were filed on 28.08.2006, inter allia, stating that the claim had abated and the right to sue did not survive.
On 30.08.2007, the aforesaid applications were rejected by the learned Tribunal on two grounds, firstly, the claim had abated after the death of the claimant in view of full bench decision of the Karnatka High Court in the case of Uttam Kumar Vs. Madhav and others reported in 2006 (1) ACC 378 Karnatka and other judgments viz. Virendra Singh Vs. Ashok Kumar and others, 2006 (3) ACC 462 and the decision of the Supreme Court allegedly in the case of M.S. Ajuta Hasan Vs. T.G. Nayyar, 1996 ACJ 440. Secondly, the application for substitution had been filed with a delay of 118 days and the cause shown in the application for condonation of delay was not sufficient nor satisfactory.
Heard learned counsel for the petitioner and perused the records.
Notices were issued to the respondent No.3 but nobody has put in appearance on his behalf. The counsel for the respondent No.2 also did not appear.
The learned counsel for the petitioner contends that the petitioner being legal heir/ wife of late Radhey Shyam Sharma and the claim petition having been filed by Sri Sharma during his lifetime, she was entitled to be substituted at his place as the right to sue survived in her favour. The learned Tribunal erred on facts and in law in rejecting the application for substitution as having been abated and also as being barred by limitation.
A perusal of the impugned order reveals that the learned Tribunal has rejected the applications as abated mainly relying upon the judgments referred to above. So far as the legal position that in cases of personal injury, the claim dies with the claimant and the right to sue does not survive is concerned, there cannot be much doubt and the decisions referred in the impugned order on this issue to the aforesaid extent cannot be disputed.
However having said so, this court would like to refer to another full bench decision of the Madhya Pradesh High Court in the case of Smt. Bhagwati Bai Vs. Bablu and others, AIR 2007 MP 38, wherein after considering the provisions of Section 306 of the Indian Succession Act and the provisions of the Legal Representatives Suits Act, 1855, it is held that though the claim based on personal injury would abate on the death of the claimant but the right to sue will survive so far as the loss to the estate of the deceased is concerned and to this extent, the proceedings can be pursued by the legal heirs/ representatives of the deceased. The relevant extracts of the aforesaid full bench decision are being quoted below:
"9. A reading of Sub-section (1)(a) of Section 166 of the Motor Vehicles Act, 1988, would show that only a person who has sustained the injury, can file an application for compensation. Further a reading of Sub-section (1)(d) of Section 166 would show that any agent duly authorised by the person injured can also file such application for compensation for injury suffered by such person. Sub-section (1)(c) of Section 166 provides that where death has resulted from the accident, all or any of the legal representatives of the deceased can file an application for compensation and Sub-section (1)(d) of Section 166 provides that a legal representative of the deceased can also file claim where death has resulted from the accident. Thus, in a case of personal injury not resulting in death the legal representative of such person who was injured and who dies subsequently not on account of accident but for some other reason cannot maintain an application for compensation for personal injury sustained in an accident under Sub-section (1) of Section 166 of the Motor Vehicles Act, 1988. Hence, the contention of Mr. Choubey, learned Counsel appearing for the appellants, that under Section 166(1) of the Motor Vehicles Act, 1988, an application for compensation for personal injury can be filed also by the legal representatives of the deceased whose death was not as a result of accident but for some other reason is not correct.
10. Section 306 of the Indian Succession Act, 1925, on which reliance has been placed by Mr. Bansal, learned Counsel appearing for the respondent No. 3/Insurance Company, is quoted herein below:
"Section 306. Demands and rights of action of or against deceased survive to and against executor or administrator.--
All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his deceased, survive to and against his executors or administrators; except cause of action for defamation, assault as defined in the Indian Penal Code, 1860 (45 of 1860) or other personal injuries not causing the death of the party; and except also cases where, after the death of the parly, the relief sought could not be enjoyed or granting it would be nugatory."
The aforesaid section inter alia provides that all rights to prosecute any action or special proceeding existing in favour of a person at the time of his death, survive to his executors or administrators except causes of action for personal injuries not causing the death of the party. Thus, under Section 306 of the Indian Succession Act, 1925, the executors or administrators of a deceased will have a right to prosecute or continue any action or special proceeding existing in favour of the deceased at the time of his death, except causes of action for personal injury not causing death of the party. Therefore, where the accident does not cause death of a party but only causes personal injury to him, his executors or administrators will not have a right to prosecute or continue to prosecute an application for compensation for personal injury suffered by the party in a motor accident.
11. In Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair (1986 ACJ 440 : AIR 1986 SC 411), the Supreme Court observed that the principle contained in Section 306 of the Indian Succession Act, 1925, will apply not only to executors or administrators but also to other legal representatives. Paragraph 8 of the judgment of the Supreme Court in Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair (supra), as reported in the AIR, is quoted hereinbelow:
"Section 306 further speaks only of executors and administrators but on principle the same position must necessarily prevail in the case of other legal representatives, tor such legal representatives cannot in law be in better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also."
Hence by virtue of the principle in Section 306 of the Indian Succession Act, 1925, the legal representatives of a deceased, who suffers personal injury in a motor accident and who dies subsequently for some other reason, cannot prosecute or continue to prosecute an application for compensation under Sub-section (1) of Section 166 of the Motor Vehicles Act, 1988.
12. Section 1 of the Legal Representatives Suits Act, 1855, confers rights on the executors, administrators or representatives of any person deceased to maintain an action for any wrong committed in the lifetime of a deceased person. The said Section 1 of the Legal Representatives Suits Act, 1855, is quoted herein below:
'S. 1.......... Executors may sue and be sued in certain cases for wrongs committed in lifetime of deceased.-- An action may be maintained by the executors, administrators or representatives of any person deceased, for any wrong committed in the lifetime of such person, which has occasioned pecuniary loss to his estate, for which wrong an action might have been maintained by such person, so as such wrong shall have been committed within one year before his death and the damages when recovered shall be part of the personal estate of such person;
and further, an action may be maintained against the executors or administrators or heirs or representatives of any person deceased for any wrong committed by him in his lifetime for which he would have been subject to an action, so as such wrong shall have been committed within one year before such person's death and the damages to be recovered in such action shall, if recovered against an executor or administrator bound to administer according to the English Law, be payable in like order of administrator as the simple contract debts of such person."
13. It will be clear from Section 1 of the Legal Representatives Suits Act, 1855, quoted above that the legal representatives of any deceased person can maintain an action for any wrong committed in the lifetime of such deceased person, which has occasioned pecuniary loss to his estate, for which wrong an action might have been maintained by such person, so as such wrong shall have been committed within one year before his death and the damages when recovered shall be part of the personal estate of such person. It is by virtue of this provision in Section 1 of the Legal Representatives Suits Act, 1855 that the legal representatives of the deceased person can also maintain or continue to maintain an application for compensation for personal injury suffered in the lifetime of such person in a motor accident which has occasioned pecuniary loss to the estate for which such person might have filed an application for compensation under Section 166(1) of the Motor Vehicles Act, 1988. But where a personal injury suffered by a person during lifetime in a motor accident has not occasioned pecuniary loss to the estate of the such person, the legal representatives of the deceased person cannot maintain or continue to maintain an application for compensation under Sub-section (1) of Section 166 of the Motor Vehicles Act, 1988.
14. Further, under Section 1 of the Legal Representatives Suits Act, 1855, an application for personal injury suffered by a person during lifetime in a motor accident can be maintained and continued by the representatives of the deceased person for the pecuniary loss occasioned to the estate of the deceased person so long as the accident has been caused within one year before his death. Moreover, the accident may have occasioned pecuniary loss to the estate of a person in many ways and it is for the Tribunal or the Court to decide the loss which has been occasioned to the estate of the person who had suffered personal injury in a motor accident depending on the pleadings and proof before the Court in each case. In Paragraph 21 of the judgment of the Division Bench of this Court in Umedchand Golcha v. Dayaram and Ors. (supra), the Division Bench of this Court has held :-
"Further, the question is which items can form loss to the estate of the deceased. Of course, exhaustive list of these items cannot be given, since it would depend upon pleadings and proof brought before the Court by the claimant/legal representatives. But it can be held that loss of accretion to the estate through savings or otherwise caused on account of accident permanently or temporarily can be worked out on giving facts or assessing the loss to the estate. Further, the existing state of estate may suffer loss by application towards medical expenses, expenditure on diet, expenditure on travelling, expenditure on attendant, expenditure on diet, expenditure on Doctor's fee, reasonable monthly/annual accretion to the estate for certain period etc. The claimant does not keep separate amount for such unforeseen expenditures during his life-lime. His income is at the most divided in three parts, namely, expenditure on himself, expenditure on family and the savings to the estate. Therefore, he has to meet such expenditure from out of his estate. There may be circumstance where it is born by his legal representatives. Therefore, it is held that the legal representatives can ask for loss to the estate of these items by production of satisfactory evidence unless Court is able to draw lifetime conclusion about such expenditures from out of the estate, from the facts and circumstances and on the basis of experience."
15. In the result, we are of the considered opinion that a claim for personal injury filed under Section 166 of the Motor Vehicles Act, 1988 would abate on the death of the claimant and would not survive to his legal representatives except as regards the claim for pecuniary loss to the estate of the claimant. The matter will now be placed before the Division Bench for assessment of the pecuniary loss caused to the estate of the deceased Pancham Singh on account of the motor accident suffered by him on the basis of pleadings and proof before the Tribunal/Court. "
In the instant case, the claimant had filed the claim petition during his life time. After his death, though the claim for compensation based on the personal injuries sustained in the accident dated 09.02.2005 stood abated and the right to sue did not survive any further but the said right survives in favour of the petitioner herein, who is legal heir of the claimant in so far as the loss to the estate of the deceased is concerned, keeping in mind the above mentioned full bench decision of the Madhya Pradesh High Court and Sections 1 & 2 of the Legal Representatives Suits Act, 1855.
So far as the full bench judgment of the Karnatka High Court in Uttam Kumar's case is concerned, there can be no quarrel with regard to the proposition of law laid down therein with regard to the claim based on personal injury in view of Section 306 of Indian Succession Act, 1925 is concerned, however the said decision does not consider the other aspect relating to the loss caused to the estate of the deceased in the light of the provisions of the Act of 1855, which have been considered by the full bench of the Madhya Pradesh High Court in Smt. Bhagwati Bai's case (supra).
The learned Tribunal herein has not considered the judgment of the full bench of the Madhya Pradesh High Court nor the aforesaid aspect while rejecting the applications in question. So far as the judgment of the learned single Judge of the Madhya Pradesh High Court in the case of Shantabai Dube and another Vs. Kanhaiyalal and another, 1995 ACJ 706 is concerned, the same cannot be treated as good law in view of subsequent full bench decision of the same High Court in Smt. Bhagwati Bai's case (supra).
In view of the above, the irresistible conclusion is that the learned Tribunal erred in rejecting the applications in question on the ground of abatement of the claim petition without considering the issue of loss to the estate of the deceased. The learned Tribunal failed to appreciate that for considering this aspect of the matter not only the right to sue survived but the substitution of the petitioner herein was essential.
The learned Tribunal appears to have been misled by the fact that the applications before it did not disclose the cause of the death of Radhey Shyam Sharma and which, according to this court, was wholly irrelevant. The application for substitution clearly mentioned that the date of death of Sri Sharma was 19.06.2005 and the same was on account of an accident and it nowhere stated that the death was on account of injuries sustained in the first accident.
So far as the other reason given by the learned Tribunal for rejecting the applications, i.e. the delay/ limitation in filing the same is concerned, this court is of the view that in view of averments made in the application for condonation of delay, there was sufficient cause for condoning such delay and the Tribunal erred in taking a very narrow and strict view of the matter whereas in fact it should have taken a liberal view. Reference may be made in this regard to the Supreme Court judgment reported in Collector, Land Acquisition, Anantnag Vs. Katiji, AIR 1987 SC 1353. The reason given in the application for condonation of delay was that after the death of late Radhey Shyam Sharma, the legal heir/ wife was in a state of depression and anxiety on account of which she could not file application for substitution within a reasonable period and it is only after being able to come out of the mental anxiety and trauma of his death, she filed the application, which, according to the Tribunal, was delayed by 118 days. In the facts and circumstances, there was sufficient explanation for the delay as such the said order of the learned Tribunal is not sustainable even on this count.
In view of the above discussion, the impugned order dated 30.08.2007 is quashed. The applications for substitution and condonation of delay are allowed. The substitution of the petitioner herein as party in the M.A.C.P. No.195 of 2005 shall be allowed to be carried out within a period of one month from the date of submission of a certified copy of this order and the learned Tribunal shall proceed thereafter in accordance with law in the light of the observations made hereinabove for ascertaining the loss, if any, caused to the estate of the deceased late Radhey Shyam Sharma on account of the accident suffered by him on 09.02.2005 on the basis of the pleadings and proof adduced before it.
The writ petition is accordingly allowed.
Order Date :- 14.07.2014 NLY