Gujarat High Court
Madhuben Maheshbhai Patel Since Decd. ... vs Joseph Francis Mewan & on 14 November, 2014
Author: M.R.Shah
Bench: M.R. Shah, R.P.Dholaria
C/FA/1528/2009 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1528 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/-
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to see YES
the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India, 1950
or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? NO
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MADHUBEN MAHESHBHAI PATEL SINCE DECD. THROUGH
HEIR....Appellant(s)
Versus
JOSEPH FRANCIS MEWAN & 1....Defendant(s)
================================================================
Appearance:
MR.HIREN M MODI & MR MTM HAKIM, ADVOCATES for the Appellant
MR RITURAJ M MEENA, ADVOCATE for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 14/11/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) Page 1 of 51 C/FA/1528/2009 CAV JUDGMENT 1.00. Pursuant to the order passed by the learned Single Judge, Hon'ble the Chief Justice Bhaskar Bhattacharya vide CAV Judgement and order dated 18/11/2013 following question is referred to the Division Bench for its consideration :-
"Whether the view taken by the learned Single Judges of this Court in the decisions referred to above as well as decision of the Division Bench in the case of Surpal Singh L. Gohil v. R.M. Savalia (supra), lay down the correct proposition of law regarding applicability of section 306 of the Succession Act to a claim-application under section 166 of the MV Act where the claim for compensation is filed for the personal injuries caused to the claimant and during the pendency of the petition, he died a natural death."
2.00. Facts leading to the present First Appeal and leading to the reference to the Division Bench to consider the aforesaid question, in nutshell, are as under :-
2.01. That the original claimant - injured filed claim petition before the learned Motor Accident Claims Tribunal claiming compensation for the injuries sustained by him in an accident occurred on 23/6/1994. It appears that during the pendency of the claim petition, the original claimant died on 27/11/2005 and thereafter on the basis of an application for substitution, the appellant herein - legal heir - brother of the original claimant was substituted in place of original claimant and the matter was proceeded at the instance of the said heir.
That thereafter, the learned tribunal declared the award. That the heir of the original claimant - appellant herein was not Page 2 of 51 C/FA/1528/2009 CAV JUDGMENT satisfied with the amount of compensation awarded by the learned tribunal and therefore, the appellant herein - heir and legal representative of original claimant has preferred the present First Appeal before this Court for enhancement of the Award.
2.02. The aforesaid First Appeal came up for hearing before the learned Single Judge and the learned Single Judge was of the opinion that having regard to the provisions contained in section 306 of the Succession Act, the Appeal at the instance of heir and legal representative of the original claimant for enhancement of the award would not be maintainable.
2.03. The learned Single Judge heard the learned advocates appearing on behalf of the respective parties at length with respect to maintainability of the First Appeal at the instance of the heir and legal representative of the original claimant for enhancement of the award having regard to the provisions contained in section 306 of the Succession Act. While making submissions at the instance of the heir and legal representative of the original claimant for enhancement of the award, the learned advocates appearing on behalf of the respective parties heavily relied upon the number of decisions of this Court as well as various other High Courts inclusive of decision of the Division Bench of this Court in the case of Surpal Singh Ladhubha Gohil Versus Raliyatbahen Mohanbhai Vavalia, reported in 2009 (2) GLH 217. However, the learned Single Judge was of the opinion that the provisions of Motor Vehicles Act and Gujarat Motor Vehicle Rules and Order 22 Rule 1 and Section 306 of the Succession Page 3 of 51 C/FA/1528/2009 CAV JUDGMENT Act, where claim for compensation is filed for personal injuries caused to the claimant during the pendency of the petition, the original claimant - injured dies a natural death, there is no provision for substitution of the heirs and thereafter legal heirs cannot proceed further with the claim petition and/or even prefer appeal for enhancement of the compensation. The learned Single Judge, therefore, doubted the correctness of the decisions of this Court as well as various High Court relied upon on behalf of the appellants - heirs of the deeceased injured claimant, more particularly decision of the Division Bench in the case of Surpal Singh Ladhubha Gohil (supra) and therefore, has referred the aforesaid question to the Division Bench. That is why the matter is referred to this Court to consider the aforesaid question of law.
3.00. Mr.Hiren Modi, learned advocate appearing on behalf of the appellant - heir of the original claimant, Mr.Mehul Sharad Shah and Mr.MTM Hakim, learned advocates have made submissions in favour of the maintainability of the appeal and in support of their submission that in view of the decision of the Division Bench of this Court in the case of Surpal Singh Ladhubha Gohil (supra), on the death of original claimant - injured during the pendency of the appeal, heir can be permitted to be substituted in place of the original claimant - injured and they can be permitted to prosecute / proceed further with the claim petition regarding loss to the property / estate.
On the other hand, Mr.Rituraj Meena, learned advocate has appeared on behalf of the Insurance Company. He has submitted that in view of section 306 of the Indian Succession Page 4 of 51 C/FA/1528/2009 CAV JUDGMENT Act, on the death of the original claimant - injured, such proceeding shall abate and there is no provision for substitution of the heir of the original claimant - injured and on the death of the original claimant - injured during the pendency of the claim petition, heir cannot be permitted to proceed further with the claim petition.
4.00. The learned advocates appearing on behalf of the original claimant - heir of the injured claimant and in support of their submission with respect to substitution and in support of decision of the Division Bench in the case of Surpal Singh Ladhubha Gohil (supra) have made the following submissions:-
4.01. It is submitted that the learned Single Judge has referred the matter to consider the following question :
"Whether the view taken by the learned Single Judges of this Court in the decisions referred to above as well as decision of the Division Bench in the case of Surpal Singh L. Gohil v. R.M. Savalia (supra), lay down the correct proposition of law regarding applicability of section 306 of the Succession Act to a claim-application under section 166 of the MV Act where the claim for compensation is filed for the personal injuries caused to the claimant and during the pendency of the petition, he died a natural death."
4.02. It is submitted that the reasons for making reference by the learned Single Judge can be summarized as follows :
Page 5 of 51 C/FA/1528/2009 CAV JUDGMENT4.2.1. Order 22, Rule 1 of the Code of Civil Procedure, 1908 and Section 306 of Indian Succession Act, 1925 are applicable to the proceedings under Section 166 of the Motor Vehicles Act, 1988, which are not applicable to the proceedings under sections 140 and 163-A of the MV Act.
Therefore, the cause would not survive under section 166 of the MV Act, as the cause does not survives as per section 306 of Succession Act. Therefore the original proceedings as well as the appellant proceedings would abate.
Therefore, it is observed that the ratio of earlier judgements of this Hon'ble Court is not a good law, principally, as they do not apply the interpretation of section 306 of Succession Act and Order 22, Rule 1 of CPC as done in the referring judgement.
4.03. It is submitted by Mr.MTM Hakim, Mehul Shah and Hiren Modi, learned advocates appearing on behalf of the original claimant - heir of the injured original claimant that as such the issue referred is already concluded and decided by the Division Bench of this Court in the case of Surpal Singh Ladhubha Gohil (supra), whereby two earlier judgements of the learned Single Judge of this Court in the case of Jenabai Widow of Abdul Karim Musa Vs. Gujarat State Road Transport Corporation, reported in 1991 (1) GLR 352 as well as in the case of Gujarat State Road Transport Corporation Versus Amrishkumar Vinodbhai, reported in 1996 (3) GLR 212 are also approved and agreed with by the learned Division Bench. It is submitted that similar view and Page 6 of 51 C/FA/1528/2009 CAV JUDGMENT ratio is also taken by the another the Division Bench of this Court in the case of United India Insurance Co.Ltd. Versus Purnimaben W/o. Prabodh Balashanker Bhattji, rendered in First Appeal No. 555 of 2002 (decided on 18/12/2007). It is submitted that as such, therefore, the judgement of the Division Bench was binding upon the learned Single Judge and it was impermissible for the learned Single Judge to disagree with the judgement of the the Division Bench and make reference. It is submitted that even otherwise as the issue has been settled by the consistent ratio of this Court and has operated without any deviation all throughout till this date, principle of "stare decisis" would also be applicable and on account of the same also, the learned Single Judge ought not to have differed with the same and made reference.
4.04. It is further submitted by the learned advocates appearing on behalf of the original claimant - heir of the original claimant that as such the issue of applicability of section 306 of the Succession Act, Code of Civil Procedure, Motor Vehicles Act and abatement of the proceedings thereunder is decided and concluded by three judgements of this Court in the case of Jenabai Widow of Abdul Karim Musa (supra) as well as Amrishkumar Vinodbhai (supra). It is submitted that in the aforesaid decisions, it is specifically held that loss to the estate or injury to the proprietary or property right affect the estate of the deceased, thus, cannot be said to have covered by the exception contained in section 306 of the Indian Succession Act. It is submitted that in the case of Amrishkumar Vinodbhai (supra) relying upon the decision of the Hon'ble Supreme Court in the case of Melepurath Sankunni Ezhthassan Vs. T. G. Nair, reported Page 7 of 51 C/FA/1528/2009 CAV JUDGMENT in AIR 1986 S.C. 411, it is held that maxim "actio personalis moritur cum persona" would not apply to the cases where injury caused to the deceased person has tangibly affected his estate and to that extent, right to sue survives. It is submitted that the aforesaid two decisions have been approved by the Division Bench of this Court in the case of Surpal Singh Ladhubha Gohil (supra). It is submitted that as such the Division Bench in the case of Surpal Singh Ladhubha Gohil (supra) has further clarified, expanded and allowed the award of compensation on other heads, like, pain, shock and sufferings which was not awarded by the learned Single Judge. It is submitted that therefore, it was not open for the learned Single Judge to refer the matter to the the Division Bench, as, as such, the decision of the Division Bench is binding to the learned Single Judge.
4.05. It is further submitted that as there was consistent precedent of two learned Single Judges and the Division Bench of this Court, the learned Single Judge ought not to have differed with the said ratio and made the reference. It is submitted that since the principle of "stare decisis" would also be applicable and would desist from differing view. It is submitted that the consistent ratio of this Hon'ble Court on the applicability of "actio personalis moritur cum persona" and thereby section 306 of the Succession Act being abrogated and diluted to case of Motor Vehicle Act is also consistent ratio of the Hon'ble Supreme Court. It is submitted that therefore, the consistent ratio of this Court is required to be reaffirmed and reiterated. In support of his above submission, the learned advocates have heavily relied upon para 167 of the decision of the Hon'ble Supreme Court in the case of Charan Lal Sahu Page 8 of 51 C/FA/1528/2009 CAV JUDGMENT Vs. Unioin of India, reported in 1990 (1) SCC 613. It is submitted that therefore, the claim and proceeding do not abate due to the death of the injured claimant in the original proceedings or in the appellate proceedings. It is submitted that therefore, heirs and legal representative of the injured original claimant who had died during the pendency of the proceedings can continue the said proceedings.
4.06. It is submitted that even otherwise, illustration to Section 306 of the Indian Succession Act would support the case of the claimant / heirs of the injured claimant. It is submitted that illustrations are part of the statute and can be taken as a guide to understand and interpret the statute. It is submitted that it is also equally true that the illustration cannot have the effect of modifying, curtailing or expanding the scope of section. In support of their above submissions, the reliance is placed upon the decision of the Hon'ble Supreme Court in the case of Jumma Masjid, Mercara Vs. Kodimaniandra Deviah, reported in AIR 1962 S.C. 847 (para 12) as well as in the case of Mahesh Chjand Sharma Versus Raj Kumari Sharma, reported in (1996) 8 SCC 128 (para 80). It is submitted that illustration (i) to section 306 of the Indian Succession Act clearly and unambiguously explains when the cause of action will survive. It is submitted that therefore, it is clear that in case of injury and subsequent death during the proceedings, arising from railway accident, if the injured had brought the action before his death, the cause will survive. It is submitted that similarly the illustration (ii) also explains when the cause will not survive, i.e. in case of divorce.
4.07. It is submitted that section 306 of Indian Succession Page 9 of 51 C/FA/1528/2009 CAV JUDGMENT Act does not lead to interpretation as has been done by the learned Single Judge. It is submitted that on the contrary interpretation of section 306 of Succession Act as guided by the illustration leads to interpretation that reiterates and reaffirms the ratio of the Division Bench in the case of Surpal Singh Ladhubha Gohil (supra) and the learned Single Judges. It is further submitted that even section 306 of Succession Act and the interpretation thereof has been explained by the Andhra Pradesh High Court recently in the case of Reliance General Insurance Company Limited Versus Mallaiah (died) Per L.Rs. And others, reported in 2014 ACJ 940. It is submitted that therefore, the interpretation of section 306 of the Succession Act as has been done by the learned Single Judge also does not appear to be in tune with clear, plain and unambiguous language of section 306 of Succession Act, as guided by illustration (i).
4.08. It is further submitted that even the conclusion of the learned Single Judge that section 306 of the Succession Act would be applicable to the proceedings of the claim petition under Motor Vehicles Act, is not correct in view of the decision of the Hon'ble Supreme Court in the case of Official Liquidator, Supreme Bank Limited Versus P.A. Tendolkar, reported in (1973) 1 SCC 602 as well as in the case of Pukhraj Jain Versus Padma Kashyap, reported in (1990) 2 SCC 431.
4.09. It is submitted that in the referring judgement, the learned Single Judge has held that section 144 of the Motor Vehicles Act provides for overriding effect; Section 155 of the Motor Vehicle Act provides for survival of cause after the death Page 10 of 51 C/FA/1528/2009 CAV JUDGMENT of person in whose favour certificate of insurance is issued and Section 163A starts with non-obstante clause. It is submitted that therefore, the learned Single Judge has read the said provision as providing an overriding effect to the applicability of section 306 of the Succession Act. It is therefore, observed that since under section 166 of the Succession Act, no such overriding effect of section 306 of the Succession Act is provided, Section 306 of the Succession Act would be applicable and consequently the claim under section 166 would abate due to death of injured - claimant. It is submitted that such an interpretation by the learned Single Judge is absolutely contrary to the scheme of the Act and is impermissible.
4.10. It is submitted that the adoption and application of such interpretation and thereby reading of statute, as done by the learned Single Judge amounts to inferring "casus omissus"
in both ways i.e. either to read some addition in the statute or to infer exclusion in the statute, due to non-providing of the same in the statute, is permissible only to minuscule effect and not to be readily applied and inferred. It is submitted that the said principle of interpretation of "casus omissus" is also settled in several decisions. It is submitted that a reference may be made to the decision in the case of Union of India and others Versus Priyankan Sharan and another, reported in (2008) 9 SCC 15. It is submitted that in the said decision the Hon'ble Supreme Court has reiterated the oft repeated passages on the principle of "casus omissus", as under :
"24. Two principles of construction - one relating to casus omissus and the other in regard to Page 11 of 51 C/FA/1528/2009 CAV JUDGMENT reading the statute as a whole - appear to be well settled. Under the first principle casus omissus cannot be supplied by the Court except in the case of clear necessity and when the reason for it found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision make a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danackwerts, L.J. In Artemiou Vs. Procopiou [1966(1) QB 878], is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislature and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction (Per Lord Reid in Luke VA RC [1966 AC 557] where at p.577 he also observed :"this is not a new problem, though our standard of drafting is such that it rarely emerges".
25. It is then true that, "when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, Page 12 of 51 C/FA/1528/2009 CAV JUDGMENT and that the law intended quae frequentius accidunt. "But", on other hand, " it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom"
(See Fenton Vs. Hampton [1] Moore, PC 345]). A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislators, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus Omissus et oblivioni datus dispositioni communis juris relinquitur; " a casus omissus." observed Buller, J. in Jones Vs. Smart [1 TR 52], "can in no case be supplied by a court of law, for that would be to make laws."
27. At this juncture, it would be necessary to take note of a maxim "Ad ea quae frequentius accidunt jura adaptantur" (the laws are adapted to those cases which more frequently occur)."
(Emphasis supplied) 4.11. It is further submitted that the reading and interpretation of "casus omissus" by the learned Single Judge is contrary to principles of interpretation of statutes, as learned Single Judge has read "casus omissus" on the ground that section 155 of MV Act provides for a contingency of survival of cause even after the death of insured, but the MV Act does not provide for such contingency of survival of cause after the Page 13 of 51 C/FA/1528/2009 CAV JUDGMENT death of injured - claimant, under section 166 of MV Act. On the basis thereof the Single Judge has inferred that the statute
- MV Act, consciously omitted the survival of cause, under Section 166 of MV Act, after the death of injured - claimant.
4.12. It is submitted that with respect to the same also it is most humbly submitted that the provisions of section 155 in MV Act is made in the statute to take care of the greater mischief/event and happening i.e. death of Insured and survival of cause, against the estate of the insured or insurer and thereby the protection of right of claimant in such an eventuality. It is submitted that the provisions made in the statute for survival of cause even after death of insured cannot be lead to conclusion that the non-providing of similar provision in the statute for survival of cause after death of injured - claimant is with a purpose to abate the said claim and proceedings and thereby benefit the wrongdoers. Since the reading of MV Act in such a way would amount to "casus omissus" in the MV Act, which otherwise would also be impermissible.
Submissions on Interpretation of Scheme of MV Act for award of compensation :-
5.00. It is further submitted that the scheme of the MV Act and the claim and award of compensation therein, also necessitates the interpretation of section 306 of Succession Act, as consistently done by 3 judgements of this Court. In the said context, it is submitted that the ratio of the Hon'ble Supreme Court for claim and award of compensation under MV Act is required to be considered.
Page 14 of 51 C/FA/1528/2009 CAV JUDGMENT5.01. It is submitted that firstly the principles of claim and award of compensation under MV Act may be considered. It is submitted that in the case of Nagappa Vs. Gurudayal Singh, reported in (2003) 2 SCC 274, 3 Hon'ble Judges Bench of the Hon'ble Supreme Court has held that the claim under Section 166(4) of MV Act can be entertained by the learned tribunal, on report under section 158(6) of the MV Act by the police. It is also held that for the perusal of just and adequate compensation, it is not necessary to plead and claim amount. It is submitted that but the courts of law can award just and adequate compensation, even more than what is claimed, irrespective of the claim and pleadings by claimant/s and even on report under section 158(6) of MV Act, though no claim application may have been filed. The observations made in para 7 are as under :-
"7. Firstly, under the provisions of Motor Vehicles Act, 1988, (hereinafter referred to as "the MV Act") there is no restriction that compensation could be awarded only upto the amount claimed by the claimant. In an appropriate case where from the evidence brought on record if tribunal/court considers that claimant is entitled to get more compensation than claimed, the tribunal may pass such award.
Only embargo is-it should be 'just' compensation, that is to say, it should be neither arbitrary, fanciful nor unjustified from the evidence. It is submitted that this would clear by reference to the relevant provisions of the MV Act. Section 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to, persons arising Page 15 of 51 C/FA/1528/2009 CAV JUDGMENT out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be. Under the proviso to sub-section (1), all the legal representatives of the deceased who have not joined as the claimants are to be impleaded as respondents to the application for compensation. Other important part of the said section is sub-section (4) which provides that "the claims tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act".
Hence, claims tribunal in appropriate case can treat the report forwarded to it as an application for compensation even though no such claim is made or no specified amount is claimed."
5.02. It is submitted that it is settled law that for consideration and award of claim under MV Act strict principles of pleading and proof under CPC and Evidence Act, 1872 do not apply and summary procedure of trial is to be applied. It is submitted that the said settled ratio is evident from the following propositions of the Hon'ble Supreme Court and this Hon'ble Court :
(i) The Hon'ble Supreme Court in the case of Mantoo Sarkar Versus Oriental Insurance Company Limited, Page 16 of 51 C/FA/1528/2009 CAV JUDGMENT reported in (2009) 2 SCC 244, has observed and held as under :
"14. No doubt the tribunal must exercise jurisdiction having regard to the ingredients laid down under sub-sec.(2) of section 166 of the Act. We are not unmindful of the fact that in terms of Sec.169 of the Act, the tribunal, subject to any rules, may follow a summary procedure and the provisions of the Code of Civil Procedure under the Act has a limited application but in terms of the rules "save and except" and specific provision made in that behalf, the provisions of the Code of Civil Procedure would apply. Even otherwise the principles laid down in the Code of Civil Procedure may be held to be applicable in a case of this nature."
(Emphasis supplied)
(ii) It is submitted that the Hon'ble Supreme Court in the case of Bimla Devi & Others Vs. Himachal Road Transport Corporation & Others, reported in (2010) 11 SCC 710, has observed and held as under :-
"12. While dealing with a claim petition in terms of section 166 of the Motor Vehicles Act, 1988, a Tribunal stricto sensu is not bound by th pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite Page 17 of 51 C/FA/1528/2009 CAV JUDGMENT evidence to the effect that death of the claimants predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post mortem report vis-a-vis the averments made in a claim petition.
15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose the High Court should have taken into consideration the respective stories set forth by both the parties.
(Emphasis supplied)
(iii) It is submitted that the Hon'ble Supreme Court in the case of New India Assurance Co. Ltd. Versus Anita, reported in 2011 (2) TAC 41 (SC) has observed and held as under :
"6. We may also observe that a Tribunal constituted under the Act is not a regular Court and it is required to decide applications filed for compensation by adopting a summary procedure consistent with the rules of natural justice (Sections 168 and 169(1) of the Act). By virtue of section 169(2), the tribunal is clothed with the powers of a Civil Court for the purpose of taking evidence on oath, enforcing the attendance of Page 18 of 51 C/FA/1528/2009 CAV JUDGMENT witnesses and compelling the discovery and production of documents and material objects but there is nothing in the Act from which it can be inferred that the Tribunal is bound by the technical rules of evidence. Therefore, the tribunal cannot be faulted for having allowed the parties to lead secondary evidence. Rather, that was the only course available to the Tribunal for doing justice to the parties because the original file was lost in 1994 and the case had to be decided on the basis of constructed file."
(Emphasis supplied)
(iv) It is submitted that in the case of Bimla Devi Vs. Satbir Singh, reported in 2012 (4) Scale 217, the Hon'ble Supreme Court has observed and held as under :-
"9. Thus, looking to the matter from all angles, we are of the considered opinion that once more opportunity should be given to the appellants so that they may be able to prove the factum of the accident and if they are able to do so successfully, then they may also be able to get just, adequate and proper compensation. Only on account of hyper technicality and niceties of law, claimants should not be thrown out at the threshhold. That is not the purpose of which the Claims Tribunals are established.
10. No doubt, it is true that the claim case has not been contested in a proper legal manner, but that should not be sufficient to throw the claim petition, so as to deny the claimants of their just compensation. It is always desirable, rather a necessity in law, that the matter, as far as Page 19 of 51 C/FA/1528/2009 CAV JUDGMENT possible, be decided on merits and in accordance with law. According to us, that has not been done, may be on account of several mistakes committed by the appellants.
11. In Claim Cases, it is difficult to get witnesses, much less eye witnesses, thus extremely strict proof of facts in accordance with provisions of Indian Evidence Act may not be adhered to religiously. Some amount of flexibility has to be given to those cases, but it may not be construed that a complete go-by is to be given to the Indian Evidence Act. from the facts as unfolded hereinabove, it is clear that appellants have been callous and negligent in prosecuting the matter and did not do so in right earnest. We cannot take a pedantic view of the matter so as to shut the doors of justice to the appellants. Motor Vehicles Act is a social piece of legislation and has been enacted with intent to object to facilitate the claimants/victims to get redress for the loss of loosing of family member or for injuries at an early date. In any case, money cannot be any substitute for it, but in long run it may have some soothing effect. Thus, it is desirable to adopt a more realistic, pragmatic and liberal approach in these matters. In our considered opinion, interest of justice would be served and fully met if appellants are afforded at least one more opportunity to prove their case to the satisfaction of the Claims Tribunal."
(Emphasis supplied)
(v) It is submitted that in the case of Oriental Fire and General Insurance Company Limited Vs. Amarsing Page 20 of 51 C/FA/1528/2009 CAV JUDGMENT Pratapsing Siklikar, reported in 1993 (1) GLR 270, the Hon'ble Supreme Court in para 15 has observed and held as under :-
"..... Motor Vehicle Act is, undoubtedly, a welfare legislation. Needless to reiterate that whenever unfortunate victims or road accident or the dependents of the deceased victims, enter the thresholds of the court for justice, they should not be over burdened with the technicalities or strict pleadings of the law applicable in other civil cases. In fact, most of the accident victims in our country are pedestrians or cyclists, and most of them are illiterate and come from poor strata of the society and suffering from poverty and ignorance."
(vi) It is submitted that in the case of Prahladbhai Joitaram Parmar Versus Ahmedabad Municipal Transport Service, rendered in First Appeal No. 958 of 1998 (decided on 10/5/1999), the Hon'ble Supreme Court has observed and held as under :-
"9. After having considered the provisions of sec.166 in general and sub-section (4) thereof in particular, as also provisions of sec.140 and the spirit of sec.163A of the Act coupled with various celebrated pronouncements, it is needless to emphasise that in such cases of compensation, arising out of motor accidents, to the victims or their dependents or legal heirs, the role of the tribunal is altogether different and technical principles or ignorance or illiteracy of the claimants who are lowly and lost; dejected and rejected; poor, downtrodden, ignorant and Page 21 of 51 C/FA/1528/2009 CAV JUDGMENT illiterate victims of road accidents or dependents or legal representatives should not be allowed to suffer from enjoying fruits of benevolent provisions incorporated in the Act upon. The technicalities or rules of evidence or procedural irregularities are hand-made. It is in this context sec.166(4) of the Act is provided by the Parliament in its wisdom, which prescribes that cognizance of rightful claim could be taken note of or could be considered upon the report of the accident forwarded to it under sub-sec.6 of sec.158 as an application for compensation under this Act. It is not like a suit, not like a case where strict pleadings are required, but by virtue of the benevolent provision and simplified procedure, for filing of an application for compensation.
These are the material aspects which undoubtedly indicate that the role and status of the civil court in adversarial proceedings is different than the role and status of a Tribunal in a benevolent provision for compensation to be paid to the victims of road accident under the Act, where the court working as Tribunal is not in that sense performing its duties, not an arbiter or a referee or an umpire, but is obliged to work as a custodian or in the form of loco-parents. In short, the role and status of the Tribunal while dealing with, deciding and determining the rightful claim is on higher pedestal and we hope and trust that the Tribunals henceforth shall not remain oblivious to the statutory mandate which has a historic background and substantial purpose and policy and philosophy behind it."
(Emphasis supplied)
(vi) It is submitted that in the case of Praful Page 22 of 51 C/FA/1528/2009 CAV JUDGMENT Vashrambhai Versus Gujarat State Road Transport Corporation, reported in 2007 (3) GLR 2642, the Hon'ble Supreme Court has observed and held as under :-
"6. It is true that in normal circumstances, the Tribunal while adjudicating the claim petition would reply upon the documents, which are produced and more particularly in the matter where the disability is to be proved after giving opportunity to cross- examine the said doctor by the opponents of the claim petition. However, the proceedings before the Tribunal are not strictly as that of the Civil Court and the powers of the Tribunal, while adjudicating the claim petition are summary power. Therefore, strict rules of evidence as applicable to the Civil Court while trying the suit may not apply in every case in the proceedings before the Tribunal. It may be that in normal circumstances, the Tribunal would be guided by the provisions of the law on the aspects of fact to be proved as per the Evidence Act, but such cannot be read as a Sine qua non principle in every case. If the Tribunal finds that there is authenticated reliable material, it can be considered as a corroborative evidence on the aspects of disability, keeping in view the deposition of the claimant on the aspects of injury and gravity of such injury. At this stage, it would be profitable to refer to the decision of the Division Bench of this Court in case of "United India Insurance Co. Lrd. Vs. Udaysinh Chandansinh Thakor and Ors., 2006 (2) GLR 1229 and more particularly, the observations made at para 7 of the said decision, wherein the view taken is that strict rules of evidence would not Page 23 of 51 C/FA/1528/2009 CAV JUDGMENT apply in the proceedings before the Tribunal so as to result into creating a situation of hyper- technical view."
(Emphasis supplied) 5.03. It is submitted that in light of the aforesaid scheme of MV Act and as interpreted by the Hon'ble Supreme Court and this Court, it is submitted that the applicability of strict principles of pleadings, proof and award of compensation on the basis thereof, is not sine qua non for claiming and award of compensation thereof under the Scheme of Motor Vehicles Act. In view thereof, it is most humbly submitted that the strict applicability of section 306 of the Indian Succession; Order 22 of the CPC and non benevolent interpretation of the MV Act, to deny the benefits to victims of accident and their heirs and legal representatives and thereby provide benefit to the wrong doer/tort feasors, would be completely contrary to the scheme of the MV Act and the benevolent provisions thereunder.
6.00. It is further submitted that even otherwise, the interpretation of MV Act as adopted and applied by the learned Single Judge amounts to reading benevolent legislation i.e. MV Act, with non-benevolent eye. Therefore, would not be appropriate interpretation of the benevolent legislation and is impermissible. It is submitted that assuming that the interpretation adopted and applied by the learned Single Judge may be plausible but is contrary to the settled principles of interpretation of benevolent legislation. It is submitted that the interpretation as adopted and applied by the learned Single Judge shall result in causing more harm and damage to the victims of accident and their heirs and legal representatives. It is submitted that the said interpretation Page 24 of 51 C/FA/1528/2009 CAV JUDGMENT would work to the benefit of wrongdoer / tort feasors. It is submitted that as the wrongdoer / tort feasors would be absolved from liability to pay compensation / damage, only on account of unfortuitous circumstances, i.e. death of the injured - claimant, before judgement could be pronounced, and that too, only due to efflux of time, during which the Court of law could not adjudicate, decide the claim and award the compensation. It is submitted that therefore such an interpretation of benevolent and social welfare legislation would be inappropriate, unjust and impermissible. It is submitted that such an interpretation of benevolent and social welfare Act cannot be adopted and applied.
6.01. It is further submitted that even the interpretation of the learned Single Judge qua abatement of claim of the enhancement in appellate proceedings is also not in tune with the settled ratio on the issue of survival of cause to the heirs and legal representatives of the deceased injured - claimant, who died during the pendency of the appellate proceedings. It is submitted that therefore, it is required to be appreciated that since the claim awarded to the injured - claimant in the original proceedings was inadequate, unjust, the enhancement of the same in the appellate proceedings would be in furtherance to the cause of justice, to be provided to the injured-claimant, whose claim was improperly adjudicated, decided and awarded in the original proceedings. It is submitted that as in the original proceedings the award of compensation was unjust and inadequate, the enhancement of the same in appellate proceedings cannot be held to have abated due to death of the injured-claimant, who did not get complete justice in the original proceedings, which resulted in Page 25 of 51 C/FA/1528/2009 CAV JUDGMENT unjust decree / award.
6.02. It is submitted that as such the injustice meted out to the injured claimant is required to be remedied in the appellate proceedings, because but for the injustice caused to the injured - claimant in the original proceedings, the injured - claimant would not have been required to pursue appellate proceedings. It is submitted that on account of the fact that due to the death of the injured - claimant during the pendency of the appellate proceedings, the proceedings by the wrongdoer / tort feasor against the deceased, injured-claimant would not be held to have abated, similarly, the proceedings of the injured-claimant also cannot be in any case be held to have abated.
Making above submissions and relying upon above decisions, it is requested to answer the issue / question referred to this Court by upholding the earlier three consistent views of the the Division Bench in the case of Surpal Singh Ladhubha Gohil (supra) as well as the decisions of the learned Single Judge in the case of Jenabai Widow of Abdul Karim Musa (supra) as well as Amrishkumar Vinodbhai, (supra) and have requested to hold that on the death of injured claimant during the pendency of the claimant, heir and legal representative of the deceased - injured claimant can be substituted and they can be permitted to prosecute / proceed further with the claim petition and claim petition would not abate. It is also requested to hold that on the death of deceased - injured claimant if the heirs are dissatisfied with the amount of compensation awarded by the learned tribunal, heirs and legal representatives can prefer appeal for Page 26 of 51 C/FA/1528/2009 CAV JUDGMENT enhancement and such proceedings would not abate.
7.00. Mr.Rituraj Meena, learned advocate has appeared on behalf of the Insurance Company. He has submitted that the view expressed by the learned Single Judge while making the reference that on the death of the injured claimant during the pendency of the claim petition, the claim petition would abate and there is no provision under the MV Act and the Rules is absolutely in consonance with the provisions of the MV Act, the rules framed thereunder; Indian Succession Act and Code of Civil Procedure. It is submitted by Mr.Meena learned advocate appearing on behalf of the Insurance Company that by virtue of section 169 of the Motor Vehicles Act, the claim Tribunal shall have all the powers of the civil Court for the purpose of taking evidence on oath and for enforcing the attendance of witness and for compelling the discovery and production of documents and material objects and for other purpose as may be prescribed. It is submitted that in exercise of powers under section 169 the State of Gujarat has enacted Gujarat Motor Vehicles Rules and the said rules do not make any provision or make insufficient provision for substitution of heir and legal representatives except that the Claim Tribunal shall follow the procedure laid down in the Code of Civil Procedure for trial of suits. It is submitted that since there is no provision regarding substitution of heir and legal representatives of the deceased claimant before the claims tribunal, by virtue of rule 229 of the Gujarat Motor Vehicles Rules, the legislature has made it clear that the entire Order 22 of the Code of Civil Procedure would have application of the present proceedings before a Claims Tribunal.
Page 27 of 51 C/FA/1528/2009 CAV JUDGMENT7.01. It is submitted that Order 22 rule 1 specifically declares that the death of plaintiff or defendant shall not cause a suit to abate if the right to sue survives. It is submitted that the provisions contained in Order 22 would be applicable only if the right to sue survives in a given circumstances. It is submitted that section 306 of the Indian Succession Act which is applicable in all legal proceedings throughout India except unless excluded by a specific statutory provision, provides that a right to sue survives upon the legal representatives of deceased party. It is submitted that according to the said section, all the demands whatsoever in all rights to prosecute or defend any action or special proceedings existing in the favour of or against a person at the time of his death, survive to and against his executors or admin, except cause of action for defamation, assault, as defined in the Indian Penal Code or other personal injury not causing the death of the party and cases where, after that of the party the relief sought could be enjoyed or granting it would be nugatory. It is submitted that therefore, section 306 of the Succession Act makes it clear that right to prosecute or defend any action would survive except cases mentioned in the last section 306 of the Indian Succession Act. It is further submitted that in section 155 of the MV Act it is specifically mentioned that notwithstanding anything contained in section 306 of the Indian Succession Act, the death of a person in whose favour a certificate of insurance has been issued if it occurs after happening of an event, which has given rise to claim under the provisions of chapter 11 of the Motor Vehicles Act, shall not be barred to the survival of any cause of action arising out of the said event against his estate or against insurer. It is submitted that Chapter 11 of the Motor Vehicles Act deals with the insurance of the motor Page 28 of 51 C/FA/1528/2009 CAV JUDGMENT vehicles against third-party risk whereas Chapter 12 deals with the procedure for compensation under section 166 of the Motor Vehicles Act within which the present proceeding is involved. It is submitted that therefore, section 155 of the Motor Vehicles Act limits the applicability of section 306 of Indian Succession Act only to the cases of that of a person in whose favour certificate of insurance has been issued whether that occurs after happening of an event which has given rise to a claim under the provisions of chapter 10 and 12 of the Motor Vehicles Act. It is submitted that in view of the the aforesaid provisions of law and that Order 22 Rule 1 would be specifically made applicable and by virtue of rules framed under the Act, application of section 306 of Indian Succession Act has been excluded only to the case of death of wrongdoer or the person liable if he is insured, the right to sue will survive upon the estate of such person and ultimately upon his insurer.
Mr.Meena, learned advocate appearing on behalf of the Insurance Company has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Veerappa Vs. Evelyn Sequeira & Ors., reported in AIR 1988 S.C. 506 in support of his above submission.
5.02. Now, on the question whether, on the death of injured claimant, who dies during the pendency of the appeal, appeal would automatically stand abated or not, it is submitted by Mr.Meena, learned advocate appearing on behalf of the Insurance Company that fate of appeal would be similar to the fate of claim application as appeal is merely a continuation of original proceedings. It is submitted that therefore, if a claimant dies during the pendency of the appeal, the appeal Page 29 of 51 C/FA/1528/2009 CAV JUDGMENT would automatically stand abated.
In support of the above submissions, Mr.Meena, learned advocate appearing on behalf of the Insurance Company has heavily relied upon the following decisions of the Madras High Court and Guwahati High Court :-
(I) New India Assurance Company Limited Versus S. Pooranam w/o. Sithivinayagam in CMA MD No.1321 of 2010 (Madras High Court); and (II) Smt. Sipra Bhowmik Versus Shri Soumendra Ch. & Ors. In Motor Accident Claim Petition No. No.64 of 2000 (Guwahati High Court).
It is submitted that in the aforesaid decisions, Guwahati High Court has clearly held that an appeal is continuation of suit and in an event of injured appellant passing away, the appeal for enhancement for compensation for the personal injury suffered also stands abated.
Making above submissions and relying upon above decisions, it is requested to answer the question referred to this Court accordingly and to hold that on death of injured claimant during the pendnecy of the claim petition, there is no provision for substitution of heirs and that the said claim proceeding shall abate and also to hold that in case of death of original claimant - injured during the pendency of the appeal, the said proceedings of appeal also stands abated automatically.
Page 30 of 51 C/FA/1528/2009 CAV JUDGMENT8.00. Heard the learned advocates appearing on behalf of the respective parties.
8.01. At the outset, it is required to be noted that the present appeal has been referred to this Court pursuant to the order passed by Hon'ble the Chief Justice sitting as Hon'ble Single Judge and the following question is referred to the Division Bench for its consideration :-
"Whether the view taken by the learned Single Judges of this Court in the decisions referred to above as well as decision of the Division Bench in the case of Surpal Singh L. Gohil v. R.M. Savalia (supra), lay down the correct proposition of law regarding applicability of section 306 of the Succession Act to a claim-application under section 166 of the MV Act where the claim for compensation is filed for the personal injuries caused to the claimant and during the pendency of the petition, he died a natural death."
8.02. At the outset, it is requred to be noted that as such the question referred to the Division Bench is already concluded by the decision of the Division Bench in the case of Surpal Singh Ladhubha Gohil (supra). However, the Hon'ble the Chief Justice sitting as a Single Judge has disagreed with the view taken by the Division Bench in the case of Surpal Singh Ladhubha Gohil (supra) and has referred the aforesaid question to the Division Bench.
8.03. The learned advocates appearing on behalf of the respective appellants - original claimants has vehemently Page 31 of 51 C/FA/1528/2009 CAV JUDGMENT submitted that as the decision in the case of Surpal Singh Ladhubha Gohil (supra) is a Division Bench Judgement, the same was binding to the learned Single Judge and therefore, the reference ought not to have been made by the learned Single Judge to the Division Bench.
The learned advocates appearing on behalf of the respective appellants - original claimants are, therefore, as such justified in making grievance with respect to competence of the reference. It cannot be disputed that the decision of the Division Bench is binding to the learned Single Judge and therefore, it was not open for the learned Single Judge to refer the matter to the Division Bench. However, once the matter has been referred to the Division Bench pursuant to the order passed by Hon'ble the Chief Justice on administrative side, we have heard the learned advocates appearing on behalf of the respective parties at length on the issue referred to the Division Bench and we have considered the issue on merits.
9.00. Short but interest question of law which is posed for consideration of this Court is whether section 306 of the Succession Act would be applicable to a claim petition under section 166 of the Motor Vehicles Act where the claim for compensation is filed for the personal injuries caused to the claimant and consequently when during the pendency of the claim petition, injured claimant has died a natural death, the proceedings would abate or not and/or whether heirs and legal representatives of the deceased injured claimant who died during the pendency of the claim petition a natural death, can prosecute further the claim proceedings or not?
Page 32 of 51 C/FA/1528/2009 CAV JUDGMENT9.01. Identical question came to be considered by the Division Bench of this Court in the case of Surpal Singh Ladhubha Gohil (supra) and considering the earlier two decisions of the learned Single Judge in the case of Jenabai Widow of Abdul Karim Musa (supra) and in the case of Amrishkumar Vinodbhai (supra), the Division Bench has observed and held that on the death of the injured original claimant, heirs and legal representative of the deceased injured claimant have right to prosecute the proceedings and right to sue survives so far as loss caused to the estate and pain, shock and suffering is concerned. While holding so, in para 9 to 12 the Division Bench has observed and held as under :-
"9. Motor Vehicles Act is a social welfare legislation under which compensation is provided by way of award to the people who sustain bodily injuries or get killed in the vehicular accident. Those people who sustain injuries or whose kith and kins are killed, are necessarily to be provided with such relief in a short span of time so that the procedural technicalities cannot be allowed to defeat the just purpose of the Act under which such compensation is to be paid to such claimants. In construing social welfare legislation, the courts should adopt a beneficent rule of construction and in any event, that construction should be preferred which fulfills the policy of the legislation. Construction to be adopted should be more beneficial to the purposes in favour of and in whose interest the Act has to been passed. Judicial discipline demands that the words of a remedial statute must be construed so far as they Page 33 of 51 C/FA/1528/2009 CAV JUDGMENT reasonably admit so as to secure that relief contemplated by the statute shall not be denied to the class intended to be relieved.
10. The question germane for consideration in this case is whether the common law maxim "actio personalis moritur cum persona" that personal right of action which dies with the person, can be imported to a social welfare legislation so as to deny the benefits to legal heirs and legal representatives of a deceased claimant, to the advantage of a wrong doer? Above principle once upon a time was strictly enforced so as to deny compensation to the claimants accepting the principle that if any injury was done either to the person or property of another, for which damages only could be recovered in satisfaction, the action died with the person to whom the wrong was done. Supreme Court in several decisions diluted the strict application of the above principle in certain fact situations. Reference be made to the decisions of the apex Court in Girija Nandini Devi Vs. Bijendra Narain Choudhury - AIR 1967 SC 1131, Hazari Vs. Neki - AIR 1968 SC 1205, Lakhiram Vs. Management of Sangramgarth Collery & ors - 1994 (1) SCC 292 and other decisions. The apex Court also noticed that the maxim "actio personalis mortiur cum persona" though part of English Common Law has been subjected to criticism even in England. Punjab and Haryana High Court in Calcutta Insurance Ltd. Vs. Bhupinder Singh (supra) as well as the Division Bench of Madras High Court in C.P. Kandaswamy and ors. Vs. Mariappa Stores and ors (supra) had however literally applied the maxim "actio Page 34 of 51 C/FA/1528/2009 CAV JUDGMENT personalis mortiur cum persona" and denied the benefit to the claimants since the original claimant had died.
11. We are of the view that strict application of the maxim "actio personalis mortiur cum persona" cannot be imported to defeat the purpose and object of a social welfare legislation like Motor Vehicles Act, to the advantages of a wrong doer. Once the status of the claimants as legal heirs or legal representatives are conceded and acknowledged, to deny benefit of compensation to them, on the ground that injury was personal to the claimant, will be giving a premium to the wrong committed, which in our view would defeat the very purpose and object of the legislation. The question as to whether injury was personal or otherwise is of no significance so far as the wrong doer is concerned and he is obliged to make good the loss sustained by the injured. Legal heirs and legal representatives would have also suffered considerable mental pain and agony due to the accident caused to their kith and kin. Possibly they might have looked after their dear ones in different circumstances, which cannot be measurable in monetary terms. We are therefore in full agreement with the view expressed by the learned Single Judge of this Court in Gujarat State Road Transport Corporation's case (supra) that even after death of the injured, the claim petition does not abate and right to sue survives to his heirs and legal representatives.
12. We however find it difficult to accept the principle laid down by Punjab and Haryana High Page 35 of 51 C/FA/1528/2009 CAV JUDGMENT Court in Calcutta Insurance Ltd. Vs. Bhupinder Singh (supra) as well as the Division Bench of Madras High Court in C.P. Kandaswamy and ors. Vs. Mariappa Stores and ors (supra) literally applying the principle that personal action dies with the person, forgetting the spirit and object to the legislation. In this connection, we may refer to a decision of the Rajasthan High Court in Naseehan Vs. Surendra Pal - AIR 1996 (Raj.), wherein the Court has taken the view that claim regarding damages on account of pains, sufferings and mental agony to the deceased will not survive, but the claim regarding loss to the property will survive and permitted legal heirs of the deceased claimants to continue with the proceedings. Karnataka High Court in General Manager, Karnataka State Road Transport Corporation, Bangalore Vs. Peerappa Prasappa Sangolli and ors - AIR 1979 (Kar.) 154 has taken the view that legal representative has a rightful claim when the injured person in the accident dies before or after filing the petition."
9.02. Identical question came to be considered by the learned Single Judge in the case of Jenabai Widow of Abdul Karim Musa (supra) and in para 15, the learned Single Judge has observed and held that loss to the estate or injury to the proprietary or property right affecting the estate of the deceased cannot be said to have been covered by exception contained in section 306 of the Indian Succession Act and it is held that right to sue is available to the legal representatives of the deceased, as a claim on account of the deceased survive and passed over to his legal representatives. In the aforesaid decision it is held that expenses incurred on treatment or loss Page 36 of 51 C/FA/1528/2009 CAV JUDGMENT of income from the date of incident to death amounts to a loss to the estate.
9.03. Similar view has been expressed by the learned Single Judge in another decision in the case of Amrishkumar Vinodbhai (supra) wherein the learned Single Judge in para 10 and 14 has observed and held as under :-
"10. Section 306 as well as the provisions of Order 23 Rule 3 came to be considered by the Supreme Court in M.Veerappa V. Elelyn Sequeria, AIR 1988 SC 506. The Supreme Court has quoted with approval a passage occurring in Melepurath Sankunni Ezhuthassan v. T.G.Nair, AIR 1986 SC 411 and held that, though Sec.306 speaks only of executors and administrators, Order 22 Rule 3 of the Code of Civil Procedure sets out the right of legal representatives to continue the proceedings instituted earlier by a deceased plaintiff if the right to sue survives, the Courts have taken the view that the legal representatives stand on par with executors and administrators regarding their right to seek impledment in order to complete the suit. In the said case, the Supreme Court pointed out that the maxim actio personalis moritur cum persona is inapplicable in those cases where the injury caused to the deceased person has tangibly affected his estate or has caused an accretion to the estate of the wrongdoer or where the cause of action arises out of beach of contract. Therefore, in view of the aforesaid decision of the Supreme Court of India, it becomes evident that the maxim actio personalis moritur cum persona would not apply to the cases Page 37 of 51 C/FA/1528/2009 CAV JUDGMENT where the injury caused to the deceased person has tangibly affected his estate and to that extent, right to sue survives.
14. Since the aim of award of damages is to compensate the person wronged, there is no reason why measure of damages pertaining to estate should be in any way affected or limited by the death of the original victim of the accident. In my view, the maxim actio personalis moritur cum persona is considerabley abrogated by the judicial pronouncements. The scope of the provisions of Sec.306 of the Succession Act and the maxim actio personalis moritur cum persona appears to be well settled and the claim of damages on account of loss to the estate of the injured would not abate on his death. The claim regarding loss caused to the estate would include several items such as medical expenses, miscellaneous expenses, actual loss of income from the date of injuries till the death of the injured etc. But for the injuries sustained, the inured would not have been required to incur the said expenses nor would have suffered actual loss of income. Therefore, even after the death of the injured, the claim petition does not abate and right to sue survives to his heirs and legal representatives."
9.05. In the case of Bhagvatibhai and another Versus Bablu and others, reported in 2007 ACJ 682 the Full Bench of Madhya Pradesh High Court has held that a claim for personal injury filed under section 166 of the Motor Vehicles Act, 1988 would abate on the death of the injured claimant and would not survive to his legal representatives except as Page 38 of 51 C/FA/1528/2009 CAV JUDGMENT regards claim for pecuniary loss to the estate of the injured. While holding so, in para 9 to 14, the Full Bench of the Madhya Pradesh High Court (Gwalior Bench) has observed and held as under :-
"9. A reading of sub-section (1)(a) of section 166 of 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 died 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 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, the Page 39 of 51 C/FA/1528/2009 CAV JUDGMENT learned counsel appearing for the insurance company, respondent No.3, is quoted hereinbelow:
"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 decease, survive to and against his executors or administrators; except causes 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 causes where, after the death of the party, 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.
Page 40 of 51 C/FA/1528/2009 CAV JUDGMENT11. In Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, 1986 ACJ 440 (SC), the Apex Court observed that the principle contained in section 306 of Indian Succession Act,1925, will apply not only to executors or administrators but also to other legal representatives. Para 8 of the judgement of the Supreme Court in Melepurath Sankunni Ezhuthassan v. The Kittil Geopalankutty Nair (supra) is quoted hereinbelow:
"8. 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, for 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 representative 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, quoted hereinbelow:
Page 41 of 51 C/FA/1528/2009 CAV JUDGMENT"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 Page 42 of 51 C/FA/1528/2009 CAV JUDGMENT 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 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 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 Motor Vehicles Act,1988.
14. Further, under section 1 of the Legal Representatives Suits Act,1855, an application for compensation for personal injury suffered by a person during lifetime in a motor accident can be maintained and continued by 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 para 21 of the judgement of the Division Bench of this Court in Umed Chand Golcha v. Dayaram, 2001 ACJ 966 (MP), 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, Page 43 of 51 C/FA/1528/2009 CAV JUDGMENT 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 the 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 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 lifetime. 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 borne by his legal representatives. Therefore, it is held that the legal representatives can ask for loss to the estate of these times by production of satisfactory evidence unless court is able to draw legitimate conclusion about such expenditures from out of the estate, from the facts and circumstances and on the basis of experience."
9.06. In the case of Sampatlal and others Versus Hari Singh and others, reported in 1 (1986) ACC 134 the learned Single Judge of Rajasthan High Court has observed and held that a claim on account of personal injuries on the death of the claimant during the penedncy of the proceedings not due to injuries in accident but for some extreneous causes Page 44 of 51 C/FA/1528/2009 CAV JUDGMENT would not survive, however, the claim relating to loss to the estate survives and passes to the legal representatives. The learned Single Judge of the Rajasthan High Court considered the following two points :-
(1) the cause of action accrued as soon as the injured sustained injuries. Hence the maxim 'actio personalis moritur cum persona' cannot be pressed into service and the provisions of Section 306 of the Successions Act are not applicable; and (2) the cause of action, at least in respect of loss to the estate of the injured survived and passed over to the appellants. As such the claim in respect of compensation arising out of the loss to the estate of the injured should have been tried and decided.
While deciding the aforesaid two points / issues, the learned Single Judge of the Rajasthan High Court in the said decision in para 8, 9, 11 and 12 has observed and held as under :-
"8. Taking the first contention, it was argued by Mr.Shishodia that the cause of action to claim compensation accrues as soon as the injured sustained injury. As such, the maxim "actio personalis moritur cum persona" does not come into the play and for the same reason, the provisions of Section 306 of the Succession Act should not be pressed into service. Reliance in support of the contention was placed on Santoline Fernandes v. M/s. Mackinnon Mackenzie & Co. 1968 ACJ 102 (Bom.)= AIR 1968 Bom. 328. Section 306 of the Succession Act reads as under:
"306 - Demands and rights of action of or against Page 45 of 51 C/FA/1528/2009 CAV JUDGMENT 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 decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory."
Illustration (I) attached to this Section reads as under:
"(i) A collision takes place on a railway in consequence of some neglect or default of an official, and a passenger is severely hurt, but not so as to cause death. He afterwards dies without having brought any action. The cause of action does not survive."
9. A plain reading of Section 306 and the Illustration
(i) attached to it makes it amply clear that no action can be maintained by or against the legal representatives of a deceased person in respect of the actions relating to (a) defamation, (b) assault and (c) other personal injuries not causing death. In other words, if the injured victim dies not on account of the bodily injuries caused to him but for some extraneous grounds not related with the personal injuries caused to him, the cause of action to claim compensation in respect of the injuries caused to him does not survive and does not pass over to his legal representatives. Section 306, thus, recognizes, though partly, the Page 46 of 51 C/FA/1528/2009 CAV JUDGMENT doctrine that a personal claim dies with the person - actio personalis moritur cum persona. An action for a personal (bodily) injury does not survive on the death of the injured and hence does not pass over to his legal representatives to file an application for compensation and if filed by the injured himself in his lifetime. Does not authorise the legal representatives to prosecute and proceed with the same. The action for personal injury will survive if the injury causes death, but will not survive otherwise. Therefore, where a person claims compensation on account of injuries caused to himself, the right to prosecute the action is a personal right and comes to an end with his death. The claim does not survive on his death and does not pass over to his legal representatives. In C.P. Kandaswamy v. Mariappa Stores, 1974 ACJ 362 (Mad.) = AIR 1974 Mad
178. a Division Bench of the Madras High Court subscribed to this view while constructing the provisions of Section 306 of the Succession Act. It was held that a plain reading of Section 306 of the Succession Act would undoubtedly go to show that the cause of action regarding the injury sustained by the victim does not survive on his death. In Santoline Fernandes v. M/s. Mackinnon Mackenzie & Co., 1968 ACJ 102 (Bom.)= AIR 1968 Bom 328 relied upon by Mr.Shishodia, the matter was entirely different. That case related to compensation under the Workmen's Compensation Act, 1923. The learned Judge of the Bombay High Court took the view that the liability to pay compensation under Workmen's Compensation Act is created immediately upon the occurrence of an accident. As such, the liability amounts to a debt payable by the employer to the workmen. The application for compensation does not, therefore, abate if the applicant dies during the pendency of the application. That is not the case here in hand. There are Page 47 of 51 C/FA/1528/2009 CAV JUDGMENT certain observations made by the learned Judge, in which he accepted the applicability of the maxim 'actio personalis moritur cum persona" in cases arising out of the torts. In para 9 of the judgement he accepted the view that application of the maxim 'actio personalis moritur cum persona' is limited to actions in which remedy is sought for a tort or for something which involves, at any rate, the notion of wrong doing. Thus, the doctrine embodied the maxim 'actio personalis moritur cum persona' was held applicable to a case relating to personal injuries. The authority, thus, renders no assistance to Mr.Shishodia. On the contrary, it subscribes the view which I am taking.
11. Coming to the second contention, it was argued by Mr.Shishodia that the cause of action, at least in respect of the loss to the estate of the injured, survives and passes over to his legal representatives if the injured dies during the pendency of the proceeding. It was argued that the doctrine actiou personalis moritur cum persona was wrongly applied by the Tribunal in respect of the loss to the estate of the injured Khemraj. In support of the contention Mr.Shoshodia cited three authorities, viz. Kongara Narayanamma v. Uppala China Simhachala, 1975 ACJ 448 (Andh Pra), Thailammai v. A.V. Mallayya Pillai, 1991 ACJ 185 (Mad) and Joti Ram v. Chamanlal, 1984 ACJ 645 (P & H)= AIR 1985 P & H 2. I have examined the contention and I am of the view that the contention is not without force.
12. The maxim 'actio personalis moritur cum persona' 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 Succession Act. Section 306 clearly lays down that all demands whatsoever and Page 48 of 51 C/FA/1528/2009 CAV JUDGMENT all rights to prosecute or defend in an action or special proceeding existing in favour of or against a person at the time of his death survive except causes of action for defamation etc. which come to an end with the death of the injured. The loss to the estate is, thus not covered by the exception contained in section 306 of the Succession Act. A few authorities on the point may be noticed. In Kongara Narayanamma v. Uppala China Simhachalam, 1975 ACJ 448 (AP), it was observed:
"21-AIn making a claim, a claimant could claim loss to his property of whatever description caused by the accident. There is no warrant for holding that the cause of action in respect of that loss would not survive to the legal representatives."
In Thailammai v. A.V. Mallayya Pillai 1991 ACJ 185 (Mad), it was held that the cause of action in respect of damages to the estate of the deceased survives and passes over to his legal representatives. In Joti Ram v. Chamanlal 1984 ACJ 645 (P & H) = AIR 198s P & H 2 a Division Bench of the Punjab & 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 the loss to the estate. On a careful consideration, I find myself in complete agreement with the views expressed in the above two cases. I am, therefore, 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.
10.00. Considering the aforesaid decision of the the Division Bench of this Court in the case of Surpal Singh Ladhubha Gohil (supra); decisions of the learned Single Page 49 of 51 C/FA/1528/2009 CAV JUDGMENT Judge of this Court in the case of Jenabai Widow of Abdul Karim Musa (supra) and in the case of Amrishkumar Vinodbhai (supra); and aforesaid two decisions of the learned Single Judge of the Rajasthan High Court, we are of the opinion that maxim "actio personalis moritur cum persona" on which section 306 of the Indian Evidence Act is based cannot have an applicability in all actions even in an case of personal injuries where damages flows from the head or under the head of loss to the estate. Therefore, even after the death of the injured claimant, claim petition does not abate and right to sue survive to his heirs and legal representatives in so far as loss to the estate is concerned, which would include personal expenses incurred on the treatment and other claim related to loss to the estate. Under the circumstances, the issue referred to the Division Bench is answered accordingly. Consequently, it is held that no error has been committed by the learned tribunal in permitting the heirs to be brought on record of the claim petition and permitting the heirs of the injured claimant who died subsequently to proceed further with the claim petition. However, the claim petition and even appeal for enhancement would be confine to the claim for the loss to the estate as observed hereinabove.
Now, the matter will be placed before the learned Single Judge to proceed further with the appeal and to consider the claim accordingly in accordance with law and on merits and to the aforesaid extent, as observed hereinabove.
Sd/-
(M.R.SHAH, J.) Sd/-
(R.P.DHOLARIA,J.) Rafik.
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