Madras High Court
Venkatesan (Deceased) vs Kasthuri on 18 October, 2012
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.10.2012
CORAM:
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
CMA.NO.2190/2009
1.Venkatesan (Deceased)
2.Malakodi
3.Hemalatha (Minor)
4.Nanthini (Minor) Appellant
Vs
1.Kasthuri
2.The United India Insurance Company Limited
Chennai-20 Respondents
Prayer:- This Civil Miscellaneous Appeal is filed against the Judgement and Decree dated 18.9.2008 made in MCOP.No.99/2003 by the learned Subordinate Judge, MACT, Maduranthagam.
For Appellant : Mr.R.Nadana Sabapathy
For Respondent : Mr.G.Udayashankar-R2
JUDGEMENT
The injured claimant Venkatesan in the claim petition in MCOP.No.99/2003 on the file of the learned Subordinate Judge, MACT, Maduranthagam has filed this Civil Miscellaneous Appeal, challenging the award dated 18.9.2009, being aggrieved by the award of compensation of Rs.1,74,754/- awarded by the Tribunal for the injuries sustained by him. The injured claimant/appellant died pending the appeal and the Appellants 2 to 4, who are the wife and daughters of the injured claimant, were brought on record as his legal representatives by order of this court dated 4.6.2012 made in CMP.No.1/2010 and thus, the said legal representatives are further prosecuting the litigation at present.
2. Mr.R.Nadana Sabapathy, the learned counsel for the Appellants would submit that in the facts and circumstances, taking into consideration the nature of the injuries, the compensation awarded by the Tribunal is on the lower side and hence, the compensation requires to be enhanced. The learned counsel would contend that the legal representatives of an injured can further prosecute the litigation, since it is a loss to the estate of the deceased and hence, despite the fact that the original injured claimant is no more and died during the pendency of the appeal, the same may not come in the way of granting compensation by this court. The learned counsel referred to the decision of this court reported in AIR-2009-Madras-22 (Divisional Manager, New India Assurance Co. Limited Vs. S.V.Mani and others) in support of his contention that the appeal filed by the injured claimant for enhancement of compensation would not get abated on the death of the deceased and the legal representatives/dependents are entitled to prosecute the appeal. The learned counsel for the Appellants has taken this court through the relevant portions of the order under challenge and would point out that the approach adopted by the Tribunal, in the facts and circumstances, cannot be said to be justifiable.
3. Per contra, Mr.G.Udayasankar, the learned counsel for the 2nd Respondent Insurance Company would contend that in such cases, after the death of the injured, the cause of action does not survive and the legal representatives are not entitled to further prosecute the litigation. The learned counsel would submit that at any rate, such awarding of compensation cannot be beyond the life time of the injured. Even otherwise, the learned counsel would contend that in the light of the evidence available on record and looking into the injuries, the award of compensation is just and reasonable.
4. The deceased sole appellant, who initially filed the appeal, was the claimant/petitioner, who sustained injuries in the accident that had occurred on 8.1.2000 at 1.45 p.m. on ECR Road at Koovathur Village. On the date of the accident, while he was proceeding to his house on ECR Road, he was hit by an ambassador Car bearing Reg.No.TN-07-D-7209 which came in the opposite direction. The Petitioner was thrown off and he sustained head injuries. In the claim petition, it is stated that he was still undergoing treatment and he had been advised to undergo another eye operation, in spite of the surgery undergone by him in eye and the head. He was completely disabled to do day-today work, as there is loss of eye sight besides disfiguration. In his evidence, he had deposed that he was hospitalized for nearly 1 = months and even thereafter he continued treatment as an out patient in the Government Hospital, Chennai for nearly three months. He has deposed that he has taken treatment from a private Doctor continuously. He has further deposed that he was earning Rs.5000/- p.m. as a paddy merchant. His evidence further indicated that he was unable to do the work which he was doing before on account of the injuries sustained by him. He claimed Rs.6 lakhs as compensation before the Tribunal. The Tribunal, after analysing the evidence and taking note of the fact that the deceased Appellant suffered 45 per cent disability and assessing his monthly income at Rs.3000/- p.m., awarded a total compensation of Rs.1,74,754/- with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization under various heads as detailed below:-
Dissatisfied with said award passed by the Tribunal, the injured claimant has filed this appeal.
5. The injured claimant/appellant had died during the pendency of this appeal and his legal representatives have been brought on record to prosecute the appeal. The maxim actio personalis moritur cum personal relates only to the personal or bodily injuries and not to the loss caused to the estate of the deceased by the tortfeasor. In this way, this maxim stands considerably abrogated or modified by the provisions of section 306 of the Indian Succession Act. Section 306 of the Indian Succession Act provides that demands and rights of action of or against deceased shall survive to his executor/administrator, except causes of action for defamation, assault as defined in IPC or other personal injuries not causing the death of the party. According to this Section only the claims to the personal or bodily injuries will die with the death of the claimant and not the claim regarding the loss caused to the estate of the deceased.
6. In this regard, it is relevant to refer to the decision of the Honourable Supreme Court reported in 1986-ACJ-440-SC (Melepurath Sankunni Ezhuthassan Vs. Thekittil Geopalankutty Nair) wherein the claim of the claimant was decreed. During the pendency of the appeal, the claimant died. The Honourable Supreme Court held that the decretal debt forms part of the estate of the deceased and the appeal from a decree by the Defendant becomes a question of benefit or detriment to the estate of the Plaintiff/ Respondent which his legal representatives is entitled to uphold and defend and is therefore, entitled to be substituted in place of the deceased Respondent Plaintiff. Under these circumstances, in my opinion, the claim regarding damage on account of pain, suffering and mental agony to the deceased will not survive but the claim regarding loss to the property will survive and the Appellants are entitled to continue the proceedings.
7. In Thailamai Vs. A.V.Mallayya Pillai (1981-ACJ-185-Madras) it was held that the cause of action in respect of damage to estate of the deceased survives and passes over the his legal representatives. In Joti Ram Vs. Chaman Lal (1984-ACJ-645-P&H) a Division Bench of Punjab and Haryana High Court took the view that the right to sue survives to the legal representatives of the deceased injured in respect of claim on account of loss to estate. On a careful consideration, I am in complete agreement with the views expressed in the above decisions. Therefore, I am of the opinion that if the claim under the Act also relates to the estate of the deceased, the action survives on the death of the claimant and passes over to his legal representatives.
8. In the present case, in order to find out whether the injuries suffered by the injured claimant had disabled him from carrying on his avocation, it is necessary to look into the injuries sustained by him. He had suffered head injury which has affected his vision also. He had been hospitalized from 8.1.2000 to 5.2.2000 in the Government Hospital. In Ex.P2, there is a reference to the effect that he was taking continuous treatment till 31.3.2000. In spite of prolonged treatment, he has suffered loss of partial vision in both the eyes.
9. PW.2 Dr.Kannan Isaac, who had examined him, assessed his disability as 45 per cent. He has deposed that due to post traumatic head injury, he was unable to move his limbs and his movements were totally restricted. He has further deposed that his eye sight over the left eye also diminished. Ex.A6 showed that he had also diminished vision on the right eye.
10. It is claimed in the claim petition that the monthly income of the deceased Appellant was Rs.3000/- p.m. In the evidence, he has deposed that he was earning Rs.5000/- p.m., but there is no evidence to prove his avocation as well as the income of the injured claimant. But, however, in the absence of evidence, his income was rightly fixed at Rs.3000/- p.m. by the Tribunal. The loss of income at the rate of Rs.3000 p.m. is a loss to the estate of the deceased so far as he remained alive. Had he not sustained the injuries, the loss of income would not have occurred.
11. In the present case, there is evidence to the effect that he was taking continuous treatment as an inpatient as well as outpatient and also the evidence placed on record clearly indicated that he was taking continuous treatment for the loss of eye vision on both the eyes. In such circumstances, he would not have been in a position to earn any income at least for one year. Therefore, a sum of Rs.36,000/- is arrived at towards loss of income for one year, instead of Rs.9000/- awarded by the Tribunal towards the loss of income for a period of three months. The other award amounts awarded by the Tribunal under various heads as stated above shall remain unaltered. Thus, in all, a sum of Rs.2,01,754/- is arrived at as total compensation.
12. At this juncture, it is relevant to state that the legal representatives are entitled to receive the award amounts awarded which form part of the estate of the deceased. As there is award against the insured as well as the Insurer, the legal representatives step into the shoes of the claimant and are entitled to the amount, which the deceased claimant would have recovered and said amount would be treated as estate of the legal representatives. In the light of the views expressed by this court referred to above, this court is of the considered view that the legal representatives of the injured claimant are entitled to the above said award amount as loss to the estate.
13. In the result, this Civil Miscellaneous Appeal is allowed. The impugned award is enhanced from Rs.1,74,754/- to Rs.2,01,754/- as mentioned above. In all, the Appellants 2 to 4, who are the legal representatives of the deceased injured claimant/appellant are entitled to a total compensation of Rs.2,01,754/- (Rupees two lakhs one thousand seven hundred fifty four thousand only) with interest 7.5% p.a. from the date of the claim petition till the date of realization. In the said amount, the Appellants 2 to 4 are apportioned equally. The 2nd Respondent/ Insurance Company is directed to deposit the enhanced award amount with interest at 7.5% p.a. from the date of the claim petition till the date of deposit, within a period of eight weeks from the date of receipt of a copy of this order and on such deposit being made, the 2nd Appellant is permitted to with draw her respective award amount with proportionate interest. The share of the minor appellants 3 and 4 shall be invested in any one of the Nationalized Banks, till they attain majority. The 2nd appellant is entitled to withdraw the interest from the deposit of the share of the minor claimants once in three months. No costs.
18.10.2012 Index:Yes/No Web:Yes/No Srcm To:
1.The Subordinate Judge, MACT, Maduranthagam
2.The Record Keeper, VR Section, High Court, Madras ARUNA JAGADEESAN, J.
Srcm CMA.NO.2190/2009 18.10.2012