Madras High Court
Ms. Ayesha vs Santhi on 3 April, 2006
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03/04/2006
CORAM:
THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN
C.M.A.(MD)No.826 of 1997
1. Ms. Ayesha
Firm, Rajkapoor Transport
No.18/1256 Pappu Pillai Colony
Mary's Corner
Thanjavur
2. The New India Assurance Company
Limied, Thanjavur
...Appellants
Vs
Santhi ..Respondent
Prayer
Appeal filed under Section 173 of Motor Vehicles Act against the
Judgment and decree dated 12.3.1997 made in MCOP No. 143/1995 on the file of
the Motor Accidents Claims Tribunal( Sub Court) Thanjavur.
!For Appellants ... Mr. Vijay Karthikeyan
for Mr.S.Manohar
^For respondent ... M/s R.Gunasekar
for Caveator
:JUDGMENT
This appeal has been preferred against the award passed in M.C.O.P.No. 143 of 1995 on the file of the Motor Accidents Claims Tribunal( Sub Court), Thanjavur. The respondents in M.C.O.P.No.143 of 1995 are the appellants herein.
2. The short facts of the case relevant for the purpose of deciding this appeal are as follows:
On 07.02.1994, the claimant's husband was travelling in the bus bearing Registration No. TN-49-7290 belonging to the first respondent, from Tanjavur to Pattukottai and when the bus was nearing Thenmainadu Savadikulam at about 2.00 p.m., dashed against road side Tamarind Tree, due to the rash and negligent driving of the driver of the said bus bearing Registration No.TN-49-7290. Due to the impact, the husband of the claimant had sustained grievous injuries on the chest, face and one tooth had fallen down. The husband of the claimant had suffered enormous pain due to the injuries both grievous and simple, he had sustained in the accident. The injured was admitted in the Government Hospital at Alangudi on 9.2.1994 for treatment ie., two days after the accident. But without responding to the treatment given to him, he died on 9.4.1994 at about 4.00p.m., The claimant's husband died only due to the grievous injury , he had sustained in the chest in the accident. The said bus was insured with the second respondent. At the time of accident, the deceased was aged 30 and was earning Rs.10,000/- per mensum by working as a building contractor. Hence the legal representative of the deceased has claimed a sum of Rs.4,00,000/- towards compensation.
3. The first respondent remained exparte.
4. The second respondent in his counter has stated that the accident had occurred only due to the rash and negligent driving of the driver of the bus bearing Registration No.TN-49-7290. The accident had taken place only on 7.2.1994 but the injured died only on 9.4.1994 ie., 2 days after discharge from the hospital. There was no postmortem conducted on the body of the deceased. The claimant has not produced any postmortem certificate. The deceased had not died due to the injury, he had sustained in the accident. The claim of compensation is exorbitant.
5. Before the Tribunal, PWs 1 to 3 were examined and Exs P1 to P6 were marked on the side of the claimant. Neither oral nor documentary evidence was let in on the side of the respondents.
6. The learned Tribunal, after going through the oral and documentary evidence, has come to a conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the bus bearing Registration No.TN-49-7290 and has awarded a sum of Rs.1,75,000/- towards compensation along with 12% interest and costs.. Aggrieved by the award of compensation, the respoondents in M.C.O.P.No.143 of 1995 have preferred this appeal.
7. Now the point for determination in this appeal is whether the award of compensation passed in M.C.O.P.No.143 of 1995 on the file of the Motor Accidents Claims Tribunal ( Sub Court) Thanjavur dated 12.3.1997 is liable to be set aside for the reasons stated in the memorandum of appeal in C.M.A.No.826 of 1997?
8. The Point :
The learned counsel appearing for the appellants would contend that the accident had occurred on 7.2.1994 but even according to the evidence of P.W.1, the wife of the deceased, he was admitted in the Government Hospital at Alangudi only on 9.2.1994 ie., two days after the accident and that he died only on
9.4.1994 ie., two months after the discharge from the hospital. Even according to P.W.1, the deceased had sustained injury on the right side of the chest . Ex P2 is the copy of the Accident Register which shows that the injured had sustained a contusion on the right side of the chest, and also a contusion on the left side of the face and a contusion on the testis and a simply injury on the right upper side of the chin. Ex P3 is the O.P.Chit issued to the injured Thiyagarajan which shows that one tooth had fallen down in the accident. So there is only one grievous injury, the deceased had sustained in the accident besides three simple injuries as per Ex P3 and EX P2. P.W.2 the co-passenger of the bus which involved in the accident, who had deposed to the fact that he had travelled along with Thiyagarajan on the same day in the same bus. According to P.W.2, both P.W.2 and the deceased Thiyagarajan were labourers earning daily wages. P.W.3 is the Doctor who had treated the injured Thiyagarajan on the date of admission ie., on 9.2.1994 and had issued Ex P2 copy of the Accident Register. According to P.W.3, the Doctor, the injured was in the hospital as an inpatient from 9.2.1994 to 13.2.1994 and he would depose the fact that the injured died two months later ie., on 9.4.1994 from the date of discharge. In this case no postmortem certificate was produced and there is absolutely no evidence on record to show that the injury the injured had sustained on the right side of the chest are fatal and the vital organs on the right side of injured got grievous injury in the accident which lead him to death. In the absence of any evidence to show that only due to the injury, the said Thiyagarajan had sustained on the right side of the chest resulted fatal. It cannot be said that only due to the injury sustained in the accident, the said Thiyagarajan died in the accident. Under such circumstances, the award of the learned Tribunal holding that the deceased had died only due to the injuries , he had sustained in the accident, cannot be maintainable. So the loss of income arrived at by the learned Tribunal by adopting multiplier 17 is erroneous.
9. The learned counsel appearing for the appellants would contend that the injured had not filed claim petition while, he was alive. But his wife has filed the claim petition after the death of the injured. For the personal injury sustained by the injured in an accident, the legal representatives are not entitled to file a claim petition claiming compensation for the injury sustained by the injured in the accident. It is an admitted fact that the injured has not filed any claim petition before the Tribunal claiming compensation during his life time. It is in evidence that the injured had not died due to the injury, he had sustained in the accident. It has been held by the Karnataka High Court in Uttam Kumar(Deceased)-v-Madhav(1 (2006) ACC 378(FB) that an appeal filed by the legal representatives of a deceased is not maintainable if the claimant dies not due to result of injuries, he had sustained in the accident. The fact of the said case is that while, the deceased was returning from Bidar to Wanmar Palli near Keppikari cross, the jeep driven by one Uttam Kumar collided with a lorry coming from the opposite direction driven in a rash and negligent manner and as a result of the accident Uttam Kumar sustained severe injuries. Thereafter, Uttam Kumar was admitted into hospital for treatement and claim petition was filed by him claiming compensation for the injury, he had sustained and also for the medical expenses. The Tribunal has awarded a compensation of Rs.36,250/- with costs and interest at 16% per annum from the date of filing of the petition till the date of realisation. Uttam Kumar has preferred an appeal seeking enhancement of compensation. Pending disposal of the appeal , Uttam Kumar died on 25.12.1999 and his aged parents, as legal representatives filed petitions for condoning the delay and also for setting aside the abatement and another petition seeking permission to come on record as legal representatives of the deceased Uttam Kumar. It was found that there was no cause of action for the legal representatives of the deceased and it was held that the claimants are not entitled to compensation. The claimants in that case relied on the decision reported in Kannamma-v- Deputy General Manager, Karnataka State Road Trans. Corpn.(1(1991)ACC 421 (FB) = 1991 ACJ 707(Karnataka). The Division Bench had observed that "in view of the amended provisions of the Motor Vehicles Act,1988 and the decision of the Superme Court referred to above (Helen c Rebello-v- Maharashtra State Road Trans.corpn (1999 ACJ 10(SC) filed a reference above before the Karnataka High Court wherein it has been held as follows"
" On overall consideration and as discussed above, we are in full agreement with the well reasoned order made by the Full Bench since that part will not say anything regarding Section 306 of the I.S.Act and it is not necessary to go into the observation. It is also not necessary to go into the question of fact as alleged by the LRs that the deceased died due to the injuries sustained in the accident and that question can only be considered while considering the compensation. We answer the reference in the affirmative and fully approve the earlier Full Bench decision in Kannamma's case(supra), as stated".
In an unreported Judgment of Division Bench of this Court in C.M.A.No.1501 of 1997 dated 23.12.2005, it has been held that the legal representatives of the deceased are entitled to the compensation towards loss of income , medical expenses and under the head nutritious diet and transportation to hospital. But in that case also, the injured claimant had preferred the claim petition along with the respondents 1 and 2 in the appeal while he was alive and only during the pendency of the appeal, the injured claimant died wherein also the Division Bench of this Court has held as follows:
" The main contention raised by the counsel for the appellant is to the effect that the claim application was filed on account of the personal injuries sustained by the claimant and on his death, the legal representatives could not have claimed any compensation on account of such personal injuries sustained by the deceased, particularly when the Tribunal has come to a categorical conclusion that the ultimate death of the injured has no connection with the injuries sustained by him. He has further submitted that if at all such cause of action would survive, compensation towards loss of estate only can be granted and not on account of personal injuries, disability, loss of earning capacity etc., So far as Madras High Court is concerned, it appears that this position of law has been accepted in several decisions, such as 1974 ACJ 362(C.P.KANDASWAMY.v.MARIAPPA STORES). A learned single Judge in a decision reported in 2000 T.L.N.J 370 (THE MANAGING DIRECTOR, PANDIAN ROADWAYS CORPORATION LTD., MADURAI .v.S.RAJALAKSHMI AND OTHERS), after referring to the aforesaid decision and decisions of the Supreme Court in (1986 )I SCC 118(Melapurath Sunkunni Ezhuthassan .v. Thekittil Gopalankutti Nair),(1988) I S.C.C. 556(M.Veerappa .v. Elelyn Segulira) and the decision of Justice K.Venkataswami, as his Lordship then was, in C.R.P.No.2307 of 1988(Pushpam v. Nirmala and another) decided on 3.1.1991, has concluded that in such cases, the legal representatives would be entitled only to be compensated as regards the actual expenses incurred by the injured/claimant towards his treatment".
But in this case, the claimant is not entitled to even any amount towards compensation under the head "Actual expenses incurred by the injured" because the injured has not filed any claim petition, during his life time for A.C.ARUMUGAPERUMAL ADITYAN,J sg the injury, he had sustained in the accident. Under such circumstances, the claimant in M.C.O.P.No.143/1995 on the file of the Motor Accidents Claims Tribunal(Sub Court) Thanjavur is not entitled to any compensation under the claim petition. Hence, I hold on the point that the award passed in M.C.O.P.No.143/1995 is to be dismissed for the reasons stated in the memorandum of appeal in C.M.A.No.826 of 1997. The point is answered accordingly.
10. In the result, this appeal is allowed and the award passed in M.C.O.P.No.143/1995 is set aside and M.C.O.P.No.143 of 1995 is dismissed as there is no cause of action survive for the claimant to prefer any claim petition, for the injury sustained by the deceased, who has not filed the claim petition. No costs.
sg To The Motor Accidents Claims Tribunal (Sub Court)Tanjavur.