Gujarat High Court
Madhuben Maheshbhai Patel Since Decd. ... vs Joseph Francis Mewan & on 18 November, 2013
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
MADHUBEN MAHESHBHAI PATEL SINCE DECD. THROUGH HEIR....Appellant(s)V/SJOSEPH FRANCIS MEWAN C/FA/1528/2009 CAV JUDGEMNT
FA15282009Co4.doc IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 1528 of 2009 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA Sd/-
========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
Yes 2 To be referred to the Reporter or not ?` Yes 3 Whether their Lordships wish to see the fair copy of the judgment ?
No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
No 5 Whether it is to be circulated to the civil judge ?
No ============================================================== MADHUBEN MAHESHBHAI PATEL SINCE DECD. THROUGH HEIR:
BALVANT PURSHOTTAMBHAI PATEL Versus JOSEPH FRANCIS MEWAN & ANR.
============================================================== Appearance:
MR.HIREN M MODI, ADVOCATE for the Appellant.
RULE SERVED for the Respondent No. 1 MR RITURAJ M MEENA, ADVOCATE for the Respondent No. 2 ========================================================= CORAM:
HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA Date : 18/11/2013 CAV ORDER
1. This appeal under section 173 of the Motor Vehicles Act, 1988 [the MV Act hereinafter] is at the instance of the heir and legal representative of the original claimant and is directed against an award dated 5th September 2007 passed by the Motor Accident Claims Tribunal [Aux], Fast Track Court No.3, Vadodara, in Motor Accident Claim Petition No. 1577 of 1994 by which the Tribunal passed an award of Rs.25,000/-
with interest at the rate of 7.5% per annum from the date of the filing of the claim-petition till the final disbursement.
2. At the very outset, a pure question of law has arisen for consideration as to whether the Tribunal below was justified in passing an award after substituting the heir and legal representative of the deceased claimant who died during the pendency of the claim petition in violation of Section 306 of the Indian Succession Act [the Succession Act, for short hereafter]. This Court has, therefore, at the outset, decided to consider the question as to whether an appeal at the instance of an heir of the original claimant for enhancement is maintainable in a case of physical injury of the original claimant who ultimately died during the pendency of the proceedings for a reason which has no connection with the accident in question.
3. There is no dispute that the accident occurred on 23rd June 1994 and the claim-application was filed immediately thereafter claiming compensation for the injuries suffered by the original claimant. There is also no dispute that during the pendency of the claim-application, the original claimant died on 27th November 2005, long 11 years after the accident and thereafter, on the basis of an application for substitution, the legal heir, i.e. the brother of the original claimant, was substituted in place of the original claimant and the matter proceeded at the instance of the said heir.
4. Thus, there is no dispute that the death of the original claimant had no connection with the accident in question.
5. In such circumstances, the first question that arises for determination in this appeal is whether this appeal at the instance of the heir and legal representative of the original claimant for enhancement of the award is maintainable having regard to the provisions contained in Section 306 of the Succession Act.
6. In view of the importance of the question involved in this appeal, apart from Mr. Modi, the learned advocate appearing on behalf of the appellant and Mr. Meena, the learned advocate appearing on behalf of the respondent-Insurance Company, Mr. Mehul Shah and Mr. M.T.M. Hakim, learned advocates, also assisted this Court in deciding the above preliminary question.
7. All the learned advocates mentioned above, except Mr. Mina appearing on behalf of the Insurance Company, contended that the MV Act being a beneficial piece of legislation, the provisions contained in Section 306 of the Succession Act and Order 22 Rule 1 of the Civil Procedure Code, have no direct application. According to the learned advocates, it is the consistent view of this Court, including that of a Division Bench that even in case of an application for compensation for the injuries not resulting in death, on the subsequent death of the original claimant, his heirs can be brought on record and at their instance, the proceedings may continue. In support of such contention, the learned advocates have placed before this Court the following decisions:
RANI v. NAZEER reported in III (2006) ACC 563 [Rajasthan High Court].
SMT SUSHILA & ANR. v.
RAJVEERSINGH & ORS. reported in AIR 2000 MP 121.
SRI GANGAPPA v. SRI MOHAN decided by the High Court of Karnataka [Circuit Bench at Dharwad] on 28th November 2012 in Misc. First Appeal No. 22719 of 2010 (MV).
G.S.R.T. CORP. v. AMISHKUMAR VINODBHAI reported in 1996 (3) GLR 212.
SURPAL SINGH L. GOHIL v. R.M. SAVALIA reported in 2009 (2) GLH 217 [Division Bench decision].
ORIENTAL INSURANCE CO. LTD. v.
MALLESHWARI ROY & ANR. reported in II (1994) ACC 111 (DB).
JENABAI & ORHWEA v.
GUJARAT STATE ROAD TRANSPORT CORPORATION reported in I (1991) ACC 529 NIRMALABEN WD/O BABUBHAI BHATT v. UNITED INDIA INSURANCE CO. LTD. & ANR decided by this Court on 10th February 2012 in CIVIL APPLICATION NO. 1044 of 2012.
8. In order to appreciate the question involved in this appeal, it will be profitable to refer to Sections 144, 155 and 169 of the MV Act, Section 306 of the Succession Act, Order 22 Rule 1 of the Code of Civil Procedure and Rule 229 of the Gujarat Motor Vehicles Rules, 1989 [the Gujarat MV Rules, hereafter] which are quoted below:
M.V. Act.
S.
144.
Overriding effect.
The provisions of this Chapter shall have effect notwithstanding anything contained in any other provision of this Act or of any other law for the time being in force.
Effect of death on certain causes of action:-
Notwithstanding anything contained in section 306 of the Indian Succession Act, 1925 (39 of 1925) the death of a person in whose favour a certificate of insurance had been issued, if it occurs after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out the said event against his estate or against the insurer.
S.169: Procedure and powers of Claims Tribunals:-
In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry.
Succession Act S.
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 proceedings 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 cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.
Civil Procedure Code:
O.XXII Rule 1. No abatement by party s death if right to sue survives:-
The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
Gujarat M.V. Rules.
R.229. Application of Code of Civil Procedure:-
In so far as these rules make no provision or make insufficient provision, the Claims Tribunal shall follow the procedure laid down in the Code of Civil Procedure, 1908 (V of 1908) for the trial of suits.
9. First, I propose to consider whether Order 22 Rule 1 of the Civil Procedure Code has application to the proceedings under section 166 or section 163.A of the MV Act.
10. By virtue of section 169 of the MV Act, the Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and for enforcing the attendance of witnesses and for compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed. According to sub-section (3) of Section 169 of the MV Act, subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry.
11. In exercise of such power conferred under section 169 of the MV Act, the State of Gujarat has enacted the Gujarat MV Rules, and as pointed out above, in so far as those rules make no provision or make insufficient provision, the Claims Tribunal shall follow the procedure laid down in the Code of Civil Procedure for the trial of suits.
12. I have gone through the entire provisions of the Gujarat M.V Rules and in the said Rules, there is no provision regarding substitution of the heirs and legal representative of the deceased party before a Claims Tribunal. Therefore, by virtue of Rule 229 of the Gujarat M.V Rules, the legislature has made it clear that the entire Order 22 of the Civil Procedure Code would have application to the proceedings before a Claims Tribunal.
13. Order 22 Rule 1 specifically declares that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
It necessarily follows that the provisions contained in other rules of Order 22 would be applicable only if the right to sue survives in a given circumstance.
14. Section 306 of the Succession Act, which is applicable in all legal proceedings throughout India except excluded by a specific statutory provision, provides that a right to sue survives upon the heirs and legal representatives of a deceased party. According to the said section, all demands whatsoever and all rights to prosecute or defend any action or special proceedings 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 cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.
15. Therefore, section 306 makes it clear that as a general rule, a right to prosecute or defend any action would survive except the cases mentioned in the last portion of section 306 of the Succession Act as indicated above in italics. This section of the Succession Act equally applies not only to the executor or administrator but also to the heirs and legal representatives as pointed by the Supreme Court in the case of MELEPURATH SANKUNNI EZUTHASAN V. THEKETHIL GEOPALANKUTTY NAIR reported in AIR 1986 SC 411.
16. Thus, section 306 of the Succession Act is the guiding provision for deciding whether right to sue or defend survives on the death of a party upon one s heir or legal representative in a given situation, unless the legislature by other special law specifically bars the application of Section 306 of the Succession Act to a particular type of case.
17. There is no dispute that the claim out of which the present appeal arises is one arising out of a proceedings for claiming compensation for the personal injury not causing death of the original claimant, and, therefore, the right to sue does not survive as it comes within the purview of the last part of Section 306 of the Succession Act unless it is found that there is any other special law prohibiting the application of Section 306 of the Succession Act.
18. In section 155 of the MV Act itself, it is specifically laid down that notwithstanding anything contained in Section 306 of the Succession Act, the death of a person, in whose favour a certificate of insurance had been issued, if it occurs after the happening of an event, which has given rise to a claim under the provisions of Chapter XI of the MV Act, shall not be a bar to the survival of any cause of action arising out the said event against his estate or against the insurer. The Chapter XI of the MV Act deals with insurance of motor vehicles against third party risk whereas Chapter XII deals with the procedure for compensation under Section 166 of the MV Act with which this proceeding is involved.
19. Thus, the aforesaid Section 155 of the MV Act limits the applicability of Section 306 of the Indian Succession Act only to the cases of a death of a person in whose favour a certificate of insurance had been issued where the death occurs after the happening of an event which has given rise to a claim under the provision of Chapter X or XII of the MV Act and in such a case, the death of the insured, shall not be a bar to the survival of a cause of action arising out of the said event against the estate of the said person and consequently, against the insurer. Similarly, by virtue of Section 144 of the M. V. Act, Section 306 of the Succession Act will have no application to chapter X dealing with the proceedings under Section 140 of the M. V. Act.
20. It is well settled that if the legislature, in a particular statute, has, by express words, prohibited the application of a particular provision not in general terms but only to a particular extent, it should be presumed that in respect of other instances than the specific ones indicated in the statute, the provisions would be applicable.
21. This Court, therefore, finds that once Order 22 Rule 1 has been specifically made applicable by virtue of Rules framed under the Act, and, at the same time, the application of Section 306 of the Succession Act has been excluded only to the cases of death of a wrong doer, or the person liable, if he is insured, and then the right to sue will survive upon the estate of such person and resultantly, upon his insurer, but the claimant is not saved by the said provision from the operation of Section 306 of the Succession Act. However, a proceeding under Section 140 of the M. V. Act is protected from the operation of Section 306 of the Succession Act by virtue of the specific provision contained in Section 144 of the M. V. Act.
22. I have already pointed out above that the death of the original claimant involved in this proceeding before us occurred 11 years after the accident and it is nobody s case that as a result of the accident she died. In such circumstances, the Tribunal below committed substantial error of law in substituting the heirs of legal representative of the deceased claimant on her death notwithstanding the fact that the right to sue did not survive in this case being one for claim of money for personal injuries in a tortious act not resulting in death. Although Mr. Modi tried to impress upon this court that the Insurance Company and the defendant not having challenged the order of substitution, such order cannot be challenged in this appeal, I am of the view that for not preferring any appeal or cross-objection against the award in question, the owner and the insurer are bound to pay the awarded amount but the respondents can successfully argue in this appeal that the amount cannot be enhanced any further as the cause of action for further claim over and above the awarded sum does not survive. If any counter appeal or cross-objection was filed against the award impugned at the instance of the respondents, they could, in my view, even successfully contend that the proceedings before the Tribunal below should be declared to have abated and consequently, the cross-objection or cross-appeal should be allowed by setting aside the award.
23. Now I propose to deal with the decisions cited by the learned counsel for the parties.
24. In the case of RANI v. NAZEER [supra], a learned Single Judge of the Rajasthan High Court held that the legal heirs of an injured claimant who died during the pendency of the claim-application are entitled to receive compensation only for the period up to the date of death and not for the subsequent period, and in arriving at such a conclusion, His Lordship had relied upon an earlier decision of the said High Court in the case of Nassdeen and Another v. Surendra Pal and others reported in (1995) ACC 537 (Raj) wherein the said Court awarded compensation for personal loss only up to the date of death of the injured claimant and not for the subsequent period. It further held that the legal representative of the injured are not entitled to amount of compensation towards future loss of earning.
24.1 In my view, while arriving at such a conclusion, the Rajasthan High Court totally overlooked the provisions contained in Section 155 of the MV Act which specifically excludes the operation of Section 306 from a case where the defendant is insured but there was no right conferred upon the heirs of the claimant to continue with the proceedings in case of injury not resulting in death. In this connection, I may profitably refer to the decision of the Supreme Court in the case of MELEPURATH SANKUNNI EZUTHASAN V. THEKETHIL GEOPALANKUTTY NAIR [supra] wherein the Supreme Court held that death of either party extinguished any cause of action in tort by one against the other. The said case arose out of a suit for defamation and in paragraphs 7 and 8 of the judgment, the Supreme Court made the following observations:
7. Where a suit for defamation is dismissed and the plaintiff has filed an appeal, what the appellant-plaintiff is seeking to enforce in the appeal is his right to sue for damages for defamation and as this right does not survive his death, his legal representative has no right to be brought on the record of the appeal in his place and stead if the appellant dies during the pendency of the appeal.
The position, however, is different where a suit for defamation has resulted in a decree in favour of the plaintiff because in such a case the cause of action has merged in the decree and the decretal debt forms part of his estate and the appeal from the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff-respondent which his legal representative is entitled to uphold and defend and is, therefore, entitled to be substituted in place of the deceased respondent-plaintiff.
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 representatives also.
(Emphasis supplied).
24.2 The view taken above in the above case by the Supreme Court equally applies to a case of compensation based on injury in a tortious action of physical injury not resulting in the death of the injured because the legislature has placed the case of defamation in the same position as the one of physical injury not resulting in death.
24.3 Thus, the effect of the above decision of the Supreme Court is that in case of a claim based on tortious action of physical injury not resulting in death of the claimant, so long the cause of action of claim has not culminated into a decree for ascertainable sum, the claim cannot form part of the estate of the claimant.
25. In the case of SUSHILA AND ANR v. RAJVEERSINGH AND ORS [supra], it was held by a Division Bench of the Madhya Pradesh High Court that the provisions contained in Order 22 Rule 4 of the CPC is applicable to an appeal under section 173 of the MV Act and the claim of the appellant for enhancing the amount of compensation so as to increase the liability of the insured is not sustainable in view of abatement of the appeal from the death of the owner of the vehicle, and thus, the enhancement is not permissible. The said appeal arose out of a proceeding for compensation resulting in the death of the victim and thus, is irrelevant for our purpose.
26. In the case of SRI GANGAPPA v. SRI MOHAN [supra], a learned Single Judge of the Karnataka High Court, Circuit Bench at Dharwad, on 28th November 2012 disposed of a Misc. First Appeal No. 22719 of 2010 (MV), by relying upon a Full Bench decision of the said Court in the circumstances involved herein. The Full Bench arrived at the following conclusion as it appears from paragraph 12 of the Full Bench s judgment, which reads as under:
12. In the result, the Full Bench answers the question referred for its decision by the Division Bench, thus: (i). a claim petition presented under Section 110A of the Motor Vehicles Act, 1939, by the person sustaining bodily injuries in a motor accident, claiming compensation for personal injuries as also for compensation towards expenses, loss of income etc. (loss of estate) cannot, on such person s death occurring not as a result or consequence of bodily injuries sustained from a motor accident, be prosecuted by his/her legal representatives; but (ii). a claim petition presented under Section 110A of the Motor Vehicles Act, 1939, by the person sustaining bodily injuries in a motor accident, claiming compensation for personal injuries as also for compensation towards expenses, loss of income etc., (loss to estate) can, on such person s death occurring as a result or consequence of bodily injuries sustained in the motor accident, be prosecuted by his/her legal representatives only in so far as the claim for compensation in that claim petition relates to loss to estate of the deceased person due to bodily injuries sustained in the motor accident.
26.1 With great respect to the Full Bench of Madhya Pradesh, I am unable to agree with the same for the simple reason that the plea of loss of estate alleged in a claim-application under the MV Act due to medical expenses etc. resulting from physical injury not causing death is untenable as such claim does not form part of estate so long as the cause of action of the claim has not culminated into a decree as pointed out by the Supreme Court in the case of MELEPURATH SANKUNNI EZUTHASAN V. THEKETHIL GEOPALANKUTTY NAIR (supra).
27. In the case of G.S.R.T. CORP. v. AMISHKUMAR VINODBHAI [supra], a learned Single Judge of this Court came to the conclusion that the maxim actio personalis moritur cum persona would not apply to the cases where the injury caused to the deceased person has tangibly affected his estate and to that extent, right to sue survives. According to the learned Single Judge, 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 claimant, the victim of the accident. His Lordship further held that the maxim actio personalis moritur cum persona is considerably abrogated by the judicial pronouncements and the scope of the provisions of Section 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. His Lordship further held that the claim regarding loss caused to the estate would include several items such as medical expenses, miscellaneous expenses, and actual loss of income from the date of injuries till the death of the injured etc. His Lordship was of the opinion that but for the injuries sustained, the injured would not have been required to incur the said expenses nor would have suffered actual loss of income, and, 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.
27.1 With great respect to the learned Single Judge, I am unable to subscribe to the view taken by His Lordship for the reasons that it is well settled that for the personal injury caused to a person, if any pecuniary loss occurs, that merely gives right to a cause of action for filing of a suit but so long as the decree is not passed, the cause of action does not culminate into a right in favour of the plaintiff and so long such right has not accrued, it cannot become the part of his estate. For the above reasons, in section 306 of the Succession Act, the legislature has not adopted the maxim actio personalis moritur cum persona in its entirety but has limited its application only to the circumstances mentioned in the last part of the said section. The vigour of section 306 of the Succession Act, as enacted, cannot be diminished in any way unless specifically excluded by the legislature in any given circumstances. It appears that in Section 155 of the MV Act, the legislature has indicated that notwithstanding anything contained in section 306 of the Indian Succession Act, 1925 , the death of a person in whose favour a certificate of insurance had been issued, if it occurs after the happening of an event which has given rise to a claim under the provisions of this Chapter [i.e. Chapter XI], shall not be a bar to the survival of any cause of action arising out the said event against his estate or against the insurer.
28. The above section clearly indicates that the intention of the legislature is that Section 306 of the Succession Act would not apply in the case of a defendant who is insured and on his death, the cause of action against the insurd would devolve on his estate and consequently, upon the insurer. Therefore, the legislature consciously did not limit the operation of Section 306 of the Succession Act in the case of a person wronged if the injury does not result in death. Of course, in a proceeding under Section 140 falling under Chapter X, Section 306 of the Succession Act will have no application in view of Section 144 of the M. V. Act, as pointed out earlier.
29. In delivering the said decision in the case of G.S.R.T. CORP. v. AMISHKUMAR VINODBHAI [supra], it appears that the learned Single Judge has not taken note of section 155 of the M.V. Act. It is well settled that if in the Act itself there is a specific deviation from a particular statutory provision, the deviation cannot extend more than what is deviated by the conscious act the legislature.
30. In the case of SURPAL SINGH L. GOHIL v. R.M. SAVALIA [supra], a Division Bench of this court was considering a similar question and in this context made the following observations in paragraphs 10 and 11 of the judgment:
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 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 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.
30.1 The said Division Bench, as it appears, relied upon three Supreme Court decisions viz. Girijanandini Devi Vs. Bijendra Narain Choudhury AIR 1967 SC 1124, Hazari Vs. Neki AIR 1968 SC 1205, Lakhiram Vs. Management of Sangramgarth Collery & ors 1994 (1) SCC 292 and arrived at the conclusion that Supreme Court in those decisions diluted the strict application of the above principle. In the case of Girijanandini Devi (supra), the Supreme Court was dealing with the question whether in a suit for accounts, on the death of the parties, the right to sue survives. In that context, the Supreme Court made the following observations:
14. Finally, it was urged that since defendants Mode Narain and Rajballav Narain had died during the pendency of the proceedings, the High Court was incompetent to pass a decree for account against their estates.
Rajballav who was defendant No. 6 died during the pendency of the suit in the Trial Court and Mode Narain who was defendant No. 1 in the suit died during the pendency of the appeal in the High Court. But a claim for rendition of account is not a personal claim. It is not extinguished because the party who claims an account, the party who is called upon to account dies. The maxim 'actio personalis moritur cum persona" a personal action dies with the person, has a limited application. It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory. Death of the person liable to render an account for property received by him does not therefore affect the liability of his estate.
(Emphasis supplied).
30.2 Thus, the Supreme Court merely held that in case of suit for accounts, on the death of a party, the cause of action does not abate but at the same time, reiterated that the maxim 'actio personalis moritur cum persona squarely applies to the cases of for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory.
30.3 Therefore, the above decision of the Supreme Court rather supports the view I propose to take in this case.
31. In the case of Hazari vs. Neki (supra), another decision of the Supreme Court relied upon by the Division Bench, the question was whether right of pre-emption is a personal right, and consequently, whether in a suit for pre-emption, the right to sue survives on the death of the parties. The Supreme Court answered the question by holding that the right of pre-emption is not a personal right and thus, such right survives by making the following observations:
It is not correct to say that the right of pre-emption, is a personal right on the part of the pre-emptor to get the retransfer of the property from the vendee who has already become the owner of the same. It is true that the right of pre-emption becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundations of the right being the avoidance of the inconvenience and disturbances which would arise from the introduction of a stranger into the land. The correct legal position is that the statutory law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner's right of sale and compels him to sell the property to the person entitled to pre-emption under the statute. In other words, the statutory right of pre-emption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled to pre-empt.
31.1 In the above context, the Supreme Court further explained the implication of Section 306 of the Succession Act by making the following observations:
In this context, it is necessary to consider the provisions of S. 306 of the Indian Succession Act XXIX of 1925. This section expresses a qualification of the maxim actio personalis moritur cum persona to the extent that the section indicates that amongst causes of action which survive, are included some actions of a personal nature, that is to say personal actions other than those expressly excluded by the section itself.
(Emphasis supplied).
31.2 Thus, there is no scope of excluding the above doctrine to the cases indicated in the last part of Section 306. The above decision of the Supreme Court, therefore, also supports the view I propose to take.
31.3 In the case of Lakhiram Vs. Management of Sangramgarth Collery & ors (AIR 1994 SC 1176), the question was whether on the death of a workman during the pendency of a reference or application under Section 33 C(2) of the Industrial Disputes Act, the proceedings abates. In the above context, the Supreme Court held as follows:
It is thus obvious that the applicability of the maxim 'actio personalis moritur cum persona' depends upon the 'relief claimed' and the facts of each case. By and large the industrial disputes under Section 2A of the Act relate to the termination of services of the concerned workman. In the event of the death of the workman during pendency of the proceedings, the relief of reinstatement, obviously, cannot be granted. But the final determination of the issues involved in the reference may be relevant for regulating the conditions of service of the other workmen in the industry. Primary object of the Act is to bring industrial-peace. The Tribunals and Labour Courts under the Act are the instruments for achieving the same objective. It is, therefore, in conformity with the scheme of the Act that the proceedings in such cases should continue at the instance of the legal heirs/ representatives of the deceased workman. Even otherwise there may be a claim for back-wages or for monetary relief in any other form. The death of the workman during pendency of the proceedings cannot deprive the heirs or the legal representatives of their right to continue the proceedings and claim the benefits as successors to the deceased workman.
31.4 Therefore, the above observations in no way dilute the operation of Section 306 of the Succession Act to a proceeding for damages under Section 166 of the M. V. Act in a case of personal injury not resulting in death.
31.5 Thus, the three Supreme Court decisions relied upon by the Division Bench do not support the ultimate view taken by it.
31.6 With great respect to the Division Bench, I am thus unable to subscribe to the view taken by the Division Bench for the reasons indicated earlier and it appears that the Division Bench also did not take into consideration the provisions of Section 155 and section 144 of the MV Act wherein the provisions of Section 306 was mandated to be not applicable in the cases indicated therein but in a case under section 166 of the M.V. Act for damages due to physical injury not resulting into death, it necessary follows that section 306 of the Succession Act will have application. I have already pointed out that the legislature consciously did not apply Section 306 only to the above two instances and it necessarily follows that it had intended that Section 306 of the Succession Act will have application in other cases than above two. Even we find that by virtue of the Rules enacted by the State of Gujarat, a provision is made that in so far as these rules make no provision or make insufficient provision, the Claims Tribunal shall follow the procedure laid down in the Code of Civil Procedure, 1908 for the trial of suits. Thus, Order 22 Rule 1 will have application to the present proceedings and to decide whether right to sue survives after the death of an injured, I am bound to follow section 306 of the Succession Act, the exception being indicated in sections 144 and 155 of the MV Act.
Indisputably, those two provisions have no application to the case before us. It appears that the attention of Their Lordships was not drawn to the aforesaid two provisions of the MV Act itself excluding the operation of section 306 only to those instances mentioned in those sections.
31.7 At this stage, I may appropriately refer to another decision of the Supreme Court in the case of M. VEERAPPA V. EVELYN SEQUEIRA AND OTHERS reported in AIR 1988 SC 506 where the question before the Supreme Court was whether a suit filed by a litigant against his learned Advocate for damages amounting to Rs.6000/- caused due to negligence in professional duty of conducting his case abated on his death. Before the Supreme Court, the defendant contended that the suit was one based on tort and thus, abated, whereas according to the heirs of the plaintiff, their predecessor had suffered loss of over Rs.20,000/- due to the closure of the business and hence, the restricted claim of Rs.4,500/- was really towards loss suffered by his estate and not a claim made on the basis of the loss of reputation, mental agony, worry etc. suffered by the plaintiff. They further stated that the balance claim of Rs.1,500/- under three heads of Rs.500/- each also related to the loss suffered by the estate of the deceased and hence, the suit had to proceed for the entire claim made therein. In other words, the heirs of the plaintiff contended that the estate of the original plaintiff suffered actual monetary loss due to breach of the contract between plaintiff and his lawyer. The Supreme Court, however, in the absence of any findings or sufficient materials, remanded the matter with the following guidelines to decide the above question:
We leave the matter open for the Trial Court to decide whether the suit is founded entirely on torts or on contract or partly on torts and partly on contract and deal with the matter according to law. If the entire suit claim is founded on torts the suit would undoubtedly abate. If the action is founded partly on torts and partly on contract, then such part of the claim as relates to torts would stand abated and the other part would survive. If the suit claim is founded entirely on contract then the suit has to proceed to trial in its entirety and be adjudicated upon (Emphasis supplied) 31.8 Thus, the Supreme Court upheld the well-settled law that in case of damages claimed due to a tortious action, so long the cause of action does not merge into a decree, it does not form part of the estate whereas in case of loss suffered due to breach of contract which does not fall within the scope of Section 306 of the Succession Act, the cause of action survives even if the same is not culminated into a decree.
In the case before us, it is nobody s claim that any part of the claim is based on breach of any contract between the parties. Thus, the entire cause of action is based on tort, and consequently, by following the above law laid down by the Supreme Court, the proceedings should abate as a whole. It appears that the Division Bench of this Court in the case of SURPAL SINGH L. GOHIL v. R.M. SAVALIA [supra] also failed to take into consideration the above principles laid down by the Supreme Court.
32. In the case of ORIENTAL INSURANCE CO. LTD. v. MALLESHWARI ROY & ANR. [supra], a Division Bench of the Calcutta High Court was considering the effect of the provisions of Section 92.A of the Old MV Act [equivalent to section 140 in Chapter X of the new MV Act], where similar provision is made and it is made clear that the provisions of the said Chapter will have effect notwithstanding anything contained in any other provisions of the Act or of any other law for the time being in force. Thus, for the proceedings under section 140 of the MV Act, the rigour of Section 306 of the Succession Act will not be applicable. In the present case, we are dealing with section 166 in Chapter XII of the new M.V. Act. Therefore, it is apparent that the legislature consciously took away the application of section 306 in respect of proceedings under Chapter X by virtue of section 144, but so far as chapter XI is concerned, by virtue of the provisions of section 155 of the MV Act, it has partly taken away application of section 306 of the Succession Act and restricted it only to the extent mentioned in the said section 155 of the MV Act. I, therefore, find that the above decision of the Calcutta High Court has no application to the facts of the present case dealing with a case under section 166 of the MV Act.
33. In the case of JENABAI & ORHWEA v. GUJARAT STATE ROAD TRANSPORT CORPORATION [supra], another learned single Judge of this High Court held that MV Act being a welfare legislation, and if a statute is capable to two constructions, the one which is more beneficial for the class in whose interest the law been made should be followed. The learned Single Judge also failed to consider the effect of a similar provision contained in the MV Act of 1939 akin to section 144 and 155 of the present MV Act. For the selfsame reason, indicated above, I am unable to accept the said decision as a precedent.
34. In the case of NIRMALABEN WD/O BABUBHAI BHATT v. UNITED INDIA INSURANCE CO. LTD. & ANR [supra], I have taken a similar view which I propose to take in the present case. However, in the case of NIRMALABEN WD/O BABUBHAI BHATT v. UNITED INDIA INSURANCE CO. LTD. & ANR [supra], the decisions referred to above were not cited.
35. I, thus, find that in this case there was no justification of allowing the application for substitution which was without jurisdiction.
36. However, since the respondent has not preferred any appeal or cross-objection, there is no scope of setting aside the award and at the same time, enhancement of the awarded amount is not permissible as the same will amount to violation of section 306 of the Succession Act which is a valid law and cause of action in respect of enhanced claim has not yet merged with the estate of the original claimant as pointed out by the Supreme Court in the case of MELEPURATH SANKUNNI EZUTHASAN V. THEKETHIL GEOPALANKUTTY NAIR (supra).
37. Since the decision taken by me above is in conflict with that of a Division Bench of this Court [SURPAL SINGH L. GOHIL v. R.M. SAVALIA [supra] as well as two co-ordinate benches of this Court [G.S.R.T. CORP. v. AMISHKUMAR VINODBHAI [supra] and JENABAI & ORHWEA v. GUJARAT STATE ROAD TRANSPORT CORPORATION [supra], judicial discipline demands that I should, by following the principles laid down by the Supreme Court in the case of PRADIP CHANDRA PARIJIA AND OTHERS v. PRAMOD CHANDRA PATNAIK AND OTHERS reported in AIR 2002 SC 296, place the matter before the Chief Justice in his administrative capacity for referring the matter to a Division Bench to consider :
whether the view taken by the learned Single Judges of this court in the decisions referred to above as well as the 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.
Sd/-
(BHASKAR BHATTACHARYA, CJ.) mathew Page 32 of 32