Andhra HC (Pre-Telangana)
United India Insurance Company Limited vs G. Kishen Rao And Ors. on 22 August, 2003
Equivalent citations: II(2004)ACC249, 2004(1)ALD626
JUDGMENT G. Yethirajulu, J.
1. This appeal is preferred by the United India Insurance Company Ltd., Sangareddy against the order of the Motor Accident Claims Tribunal-cum-District Judge, Sangareddy ("the Tribunal" for brevity) in O.P.No. 389 of 1991.
2. The first claimant by name Kishan Rao met with a motor vehicle accident on 6-6-1985 and received multiple injuries and fracture to his right leg. He made an application under Section 110-A of the Motor Vehicles Act, 1939 ("the Act' for brevity) claiming compensation of Rs. 1,50,000/- for the injuries received by him in the accident. The Tribunal awarded Rs. 83,000/- with interest and costs.
3. The appellant being aggrieved by the order of the Tribunal preferred this appeal challenging the quantum of compensation.
4. On 6-6-1985 while the first claimant was going on his motorcycle, a jeep came in the opposite direction and dashed against him. He was admitted in the Government Civil Hospital, Siddipet and after first aid he was referred to Gandhi Hospital, Secunderabad. He was treated in the hospital for the fracture of the leg and operation was also conducted to insert the steel plate at the fractured portion of the leg. He was in the hospital till 19-10-1985 and re-admitted on 5-11-1985. Another operation was done on 20-11-1985 and he was discharged on 12-12-1985.
5. The petition was filed on 14-7-1986, but it was numbered in 1991. During the pendency of the petition the first claimant met with natural death on 1-12-1995 and his legal representatives were brought on record as Claimants 2 to 5.
6. The Tribunal awarded Rs. 14,000/-towards loss of earnings, Rs. 9,000/- towards transport charges, Rs. 5,000/- towards medical expenses, Rs. 9,000/- towards extra-nourishment, Rs. 10,000/- towards pain and suffering and Rs. 36,000/- for partial permanent disability.
7. The appellant-insurance company contends that since the first claimant died during the pendency of the claim petition, the Tribunal ought not have awarded any compensation to the other claimants, particularly the amount awarded towards pain and suffering and partial permanent disability. The learned Counsel for the appellant on the basis of a maxim actio personalis maritor cum persona submitted that the personal action dies with the person, therefore, the legal representatives are not entitled for any compensation.
8. If the estate gets benefited the L.Rs. are entitled for compensation, therefore, it has to be tested whether the L.Rs. are entitled for the compensation payable under the head "pain and suffering" and "partial permanent disability". It has to be further tested as to what are the items under the Act which can be treated as income for the benefit of the estate and what are the amounts which go with the person on his death. The learned Counsel for the appellant Sri K.L.N. Rao relied on certain judgments in support of his contention, which I wish to refer.
9. In Kongara Narayanamma v. Uppala China Simhachalam, 1975 ACJ 448 (AP), a learned Single Judge of this Court held that when the injured died pending disposal of the petition, his LRs. can claim compensation for loss to the estate of the deceased.
10. Under Legal Representatives Suits Act (XII of 1855) the cause of action in respect of loss to the estate of a person whose death had been caused by a tortuous act was made to survive and be available to the executors, administrators or representatives of the deceased.
11. Section 1-A of the Indian Fatal Accidents Act (XIII of 1855) provides for compulsory damages for wrongful death which must be limited strictly to the pecuniary loss to the beneficiaries and under Section 2, the measures of damages is the economic loss sustained by the estate.
12. If the compensation awardable in respect of some of the items can be said to have resulted in loss to the property of the injured person, there is nothing in law or Section 110-A (1) of the Act which prohibits a claim for compensation being made in that behalf, therefore, the legal representatives can claim compensation for loss to the estate of the deceased.
13. In Jogindra Kaur v. Jagdish Singh, , a Division Bench of the Patna High Court pointed out that a claim for compensation made by an injured person could be split up into two heads - one regarding the damages for the damage caused to the property and secondly regarding the expenses incurred for treatment and compensation for the injuries. The Division Bench further held that the legal representatives are entitled for a decree for the loss caused on account of the damage to the property, but not the expenses incurred for treatment and for compensation of the injuries received by the injured.
14. In Piriska Rozaria v. Ford Foundation, AIR 1969 Cal. 594,, a Division Bench of the Calcutta High Court recognised that if the plaintiff who died during the pendency of the appeal could claim loss to the property or in other words to his estate, the legal representatives could claim the same. The Division Bench further held that the legal representatives are also entitled to get the expenses incurred for the treatment of the plaintiff.
15. In Adapaka Eswaramma v. N. Chandra Sekhar, , a learned Single Judge of this Court held that the maxim actio personalis moritur cum persona has no application where there is loss to the estate of the deceased. The learned Single Judge further held that the action for damages for personal injuries will not die with the death of the injured. The learned Judge also held that the legal representatives are entitled for compensation towards medical expenses and extra-nourishment and also compensation for general damages.
16. In Nurani Jamal v. Naram Srinivasa Rao, a learned Single Judge of this Court held that the expenses incurred towards treatment of the injuries comes under the head "loss to the estate of the deceased" and the legal representatives are entitled for such compensation. The learned Judge further held that in all cases, the action survives where there is loss to the estate of the plaintiff and the right to sue in such cases survives and the legal representatives of the original petitioner are entitled to come on record to prosecute the original petition filed by the injured.
17. In Sampati Lal v. Hari Singh, 1985 ACJ 539 (Raj.) a learned Single Judge of the Rajasthan High Court held that a claim on account of loss to the estate of the deceased survives and passes over to his legal representatives; expenses incurred on treatment and loss of income from the date of accident to death amounts to a loss to the estate and that compensation for mental and physical pain is not a loss to the estate.
18. The above legal position makes it clear that all items come within the scope of "loss to the estate" and are entitled to be claimed by the legal representatives of the injured. From the above discussion I hold that the legal representatives of the first, claimant are entitled for compensation for loss to the estate, transport charges, medical expenses, extra nourishment. The claimants 2 to 5 (respondents herein) are not entitled for Rs. 36,000/- awarded by the Tribunal towards future loss of earnings on account of partial permanent disability and Rs. 10,000/-towards pain and suffering. The question of contribution to the family members arises only on the basis of the earnings of the injured. When the injured himself is not available, the question of calculating loss of future earnings in the event of natural death does not arise. After deducting Rs. 46,000/-the claimants 2 to 5 are entitled to Rs. 37,000/-. Out of Rs. 37,000/-, the claimants 3 to 5 are entitled each to Rs. 7,500/- and the second claimant is entitled for the rest of the amount.
19. In the result, the appeal is allowed in part. The compensation of Rs. 83,000/-awarded by the Tribunal is reduced to Rs. 37,000/- by deducting Rs. 46,000/-awarded by the Tribunal towards loss of earnings towards partial permanent disability and pain and suffering from the total amount of compensation. The interest and costs are also proportionately liable to be reduced. Each party to bear its own costs in this appeal.
20. So far as the cross-objections are concerned, the claimants are contending that the Tribunal awarded lesser amount and it ought to have awarded more amount under various heads, as claimed by them.
21. This is a case where the injured suffered a fracture on the leg. The Tribunal after taking into consideration the various heads of expenditure incurred by the injured for medical expenses etc., arrived at a just and reasonable compensation. I do not find any grounds to interfere with the order of the Tribunal regarding the quantum of compensation payable under the heads mentioned above. I therefore do not find any error in the order of the Tribunal to the extent indicated above. The cross-objections are accordingly dismissed. No costs.