Madhya Pradesh High Court
Kartar Kour And Ors. vs Dayal Singh And Ors. on 24 March, 1998
Equivalent citations: 1999ACJ699, 1999 A I H C 3314, (1999) 1 ACJ 699, (2000) 1 TAC 472, (1999) 2 ACC 372
JUDGMENT S.K. Dubey, J.
1. This is an appeal against the award dated 13.8.1991 passed in Motor Accident Claim Case No. 4 of 1990 by the Motor Accidents Claims Tribunal, Harda.
2. The facts giving rise to this appeal are thus:
The claimant (since deceased) aged 70 years, was going on his scooter on 22.9.1989 in the market of Harda town. At about 12.30, newly bought Swaraj tractor, driven by respondent No. 3, owned by respondent Nos. 1 and 2 and insured with respondent No. 4 hit the scooterist as a result of which he fell down and received multiple severe injuries. First information report was lodged at the police station, Harda. The investigating agency prepared the spot-map and sent the injured for medical examination. The driver of the tractor was arrested, who, later on, was released on bail. The tractor was seized which was also given on supuradnama after its mechanical examination to the owner. The injured was shifted to Hamidia Hospital, Bhopal, where he remained as an indoor patient from 23.9.1989 to 28.9.1989 and was treated for fracture of 4th, 5th and 7th rib of left side and also for fracture of left shoulder, left clavicle and left neck humerus. He was operated for close reduction under general anaesthesia. He was advised weekly check-up. The injury report, X-ray and discharge certificate were produced and proved.
3. The injured claimed compensation of Rs. 75,000. The claim was contested. The defence was that there was no accident with the tractor. The claimant examined himself and one eyewitness Sharad Kumar to prove the accident. Dr. Vinay Singh Mourya, Assistant Surgeon proved the injuries and treatment. Respondent No. 1, the owner, Raghuvirsingh examined himself, who stated that there was no accident with his tractor. However, the driver, Jaswant Singh, who was driving the tractor, did not appear in the witness-box. The Tribunal after appreciation of the evidence dismissed the claim, holding that the claimant has failed to establish that the accident was caused by the tractor.
4. The claimant aggrieved of this award filed an appeal, who died during pendency of the appeal. His legal representatives were substituted on record.
5. Mr. A.N. Choubey, learned Counsel for the appellants, Mr. Abhay Gupta for respondent Nos. 1 and 3 and Mrs. Indira Nair for respondent No. 4 heard.
6. First, we will take up the objection raised by the learned Counsel for the respondents about the continuance of the appeal by the legal representatives of the injured claimant (since deceased), based on doctrine of action personalist moritur cum persona, that is, a personal claim dies with the person (claimant). It is a common law doctrine. It was a rule of common law that a personal claim dies with the person, that is, if an injury is done either to the person or property of another for which the damages could only be recovered in satisfaction, the action dies with the person to whom or by whom the wrong was done; but the maxim has no application where the right to claim compensation for the injuries suffered can be claimed under a statutory provision. The statutory provisions are contained in Section 165 to 175 of Chapter XII of the Motor Vehicles Act, 1988 (for short 'the Act') corresponding to Sections 110 to 110F of the Motor Vehicles Act, 1939 (for short 'Act of 1939') repealed by the Act. Section 166 of the Act deals with the application for compensation. Clause (a) of Sub-section (1) of Section 166 of the Act enables the application for compensation being made in a Claims Tribunal under the Act, whereby a person, who has sustained injury can claim. Clause (b) relates to the claim application by the owner of the property. Clause (c) enables the application for compensation being made before the Tribunal where the death has resulted in a motor accident. Such application can be made either by all the legal representatives of the deceased or by any of them. Clause (d) enables the agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be, or attorney of legal representatives of the deceased.
7. The expression 'legal representative' has not been defined in the Act. Section 2(11) of the Code of Civil Procedure, 1908 (V of 1908) defines 'legal representative' as a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued. The aforesaid definition, no doubt, in terms does not apply to a case before the Claims Tribunal; but it has to be stated that even in ordinary parlance the said expression is understood almost in the same way in which it is defined in the Code of Civil Procedure. A legal representative ordinarily means a person who in law represents the estate of a deceased person or a person on whom the estate devolves on the death of an individual. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 165 to 175 of the Act, corresponding to Section 110 to Section 110-F of the Act of 1939. Those provisions are in consonance with the principles of law of Torts that every injury must have a remedy. It is for the Motor Accidents Claims Tribunal to determine the compensation which appears to it to be just as provided in Section 168 of the Act corresponding to Section 110-B of the Act of 1939 and to specify the person or persons to whom the compensation shall be paid. [See Gujarat State Road Trans. Corpn., Ahmedabad v. Ramanbhai Prabhatbhai 1987 ACJ 561 (SC)].
8. In view of the statutory provisions it is clear that the legal representatives of a person who dies in motor accident can claim compensation before the Tribunal by an application under Section 166 of the Act. However, the question in the present case is where under Clause (a) of Sub-section (1) of Section 166 of the Act, an application is filed by an injured who sustained the injuries in a motor accident and dies during the pendency of the application for compensation, whether his legal representative can continue the application to claim compensation and to what extent.
9. The question came up for consideration before a learned Judge of this Court in New India Assurance Co. Ltd. v. Shakuntla Bai 1987 ACJ 224 (MP), where during the pendency of the claim case, the injured claimant died as a result of the injuries suffered in the motor accident, his legal representatives were brought on record. Learned Judge while construing the provisions of Section 110-A (1) (b) of the Act of 1939 and Section 306 of the Indian Succession Act, 1925, observed that the maxim action personalise moritur cum persona has no application where the right is provided by the statutory provisions. The sole repository of the rights of the parties in a case is the statutory provision of the relevant Code itself, namely, the provisions enacted in Section 110-A of the Act of 1939. Primacy must be attached to statutory provision and not to the maxim which has not been recognised in India except to the extent it is saved or recognised in Section 306 of the Indian Succession Act.
10. In a recent decision, rendered at Indore Bench of this Court in Chandrakant Soni v. Mukesh Sahu 1996 ACJ 575 (MP), where the claim was awarded to the injured claimant who filed an appeal for enhancement of the compensation, died during the pendency of the appeal and his legal representatives applied for substitution, the learned Judge after referring to the provisions of Sections 110-A to 110-F of the Act of 1939 and relying on the decision of the Bombay High Court in Maimuna Begum v. Taju 1988 ACJ 417 (Bombay), held that the legal representatives can continue the application and maxim action personalis moritur cum persona cannot bar the right to sue claim by the legal representatives of the deceased claimant because the maxim has been criticised even in the country of its origin as unjust, obscure in its origin, inaccurate in its expression and often resulting in grave injustice. Indian courts have generally taken a view that the maxim should not be applied as a part of our law except, of course, where specifically engrafted in a statute and that the principles of justice, equity and good conscience should be followed.
11. The Andhra Pradesh High Court in Nurani Jamal v. Naram Srinivasa Rao 1994 ACJ 222 (AP), while considering the application under Order 22, Rule 3, Civil Procedure Code in a proceeding under Section 110-A of the Act of 1939 before the Motor Accidents Claims Tribunal, after discussing the law observed that the right to sue for recovery of damages for personal injuries will not die with the death of the injured where there is loss to the estate of the deceased and the maxim action personalis moritur cum persona has no application in such circumstances. Thus where claim of injured for reimbursement of medical expenses, under Section 110 of Motor Vehicles Act was relating to loss of his estate right to sue survives even after the death of claimant and his legal representatives are entitled to be brought on record.
12. Gujarat High Court in Jenabai v. Gujarat State Road Trans. Corporation 1991 ACJ 585 (Gujarat), after referring to Section 306 of the Indian Succession Act and the Sections 110-A to 110-F of the Act of 1939 in a case where the injured died during the pendency of the claim for compensation observed that Section 306 of the Indian Succession Act does not exclude right to recover claim on the basis of proprietary right. In a case of personal injuries, arising out of vehicular accident, it may include pecuniary loss as well. This pecuniary loss or any loss which is referable to the loss to the estate would be a proprietary or right pertaining to property. Therefore, the right to maintain the action or to continue the action for recovery of pecuniary and proprietary loss which are referable or attributable to the loss to the estate, cannot be said to have been taken away by the provisions of Section 306 of the Indian Succession Act.
13. The Punjab, and Haryana High Court in Joti Ram v. Chaman Lal 1984 ACJ 645 (P&H), considered the scope of provisions of Section 306 of Indian Succession Act in a case where the claimant died during the pendency of his claim and observed that the maxim actio personalis moritur cum persona would not bar the claim of damages on account of loss to estate of the injured and would not abate the proceedings, as the right is statutory enabling the injured and the legal representatives to claim compensation in respect of the injury suffered or death caused in an accident by use of motor vehicle and that the maxim has not been recognised in India except to the extent it is recognised in Section 306 of the Indian Succession Act.
14. In view of the above, we are of the view that where the injured claimant dies as a result of the injuries during the pendency of his claim for compensation, the legal representatives would be entitled to pursue the claim as in case of death caused in an accident by the use of motor vehicle. Where the injured dies his natural death and not because of injuries suffered in motor accident, the legal representatives would be entitled to pursue the claim to the extent as recognised by Section 306 of the Indian Succession Act, that is, the claim on account of loss to the estate of the deceased. Where in a case, the compensation has been awarded to the injured and an appeal is preferred and during the pendency of the appeal, claimant/injured dies, his legal representatives can continue the appeal for enhancement of compensation.
15. The present appeal is against the dismissal of the claim petition for compensation filed by the injured claimant (since deceased). His death was not due to the injuries suffered by him in the motor accident but was natural. Therefore, we are of the view that the legal representatives of the deceased-appellant (claimant) can continue the appeal to claim compensation to the extent of loss to the estate of the deceased.
16. It is not in dispute that immediately after the accident, the first information report was lodged and the criminal law was set in motion. True, no registration number was given in the report or in the statement by the injured claimant before the Tribunal, that was for the simple reason that the tractor was newly purchased at the time when the accident occurred, it was not registered. The tractor involved in the accident was seized and the driver was arrested who faced the prosecution, is also not in dispute. The driver who was driving the tractor has not appeared in the witness-box to state that no accident had occurred with his tractor and at the relevant time the tractor was not on the road passing through the place where the accident took place. Non-examination of driver raises an adverse inference against him under illustration (g) of Section 114 of the Evidence Act. Besides the circumstances, there is another material circumstance, that is, the injured claimant before filing of the application for compensation, served a notice of demand of compensation on the owner, driver and the insurance company of which no reply was sent denying any accident by their tractor. Therefore, on a consideration of overall circumstances which have come on record, we hold that it was the tractor owned by respondent Nos. 1 and 2, involved in the accident which by negligent driving by respondent No. 3 hit the scooterist, the claimant. Therefore, the respondents are jointly and severally liable to pay compensation.
17. The deceased in his statement stated that he had spent Rs. 25,000 for medical treatment but no cash memo and vouchers or receipts were produced. However, looking to the nature of injuries, the deceased must have spent some amount towards medical care and special diet. He remained in hospital for about a week as an indoor patient and used to come thereafter for weekly check-up. Therefore, it would not be unreasonable to award a sum of Rs. 10,000 under the head of pecuniary damages. Under the head of non-pecuniary damages, the deceased suffered mental and physical shock, pain and suffering during his treatment which the appellant if would have survived, was entitled to get, that would besides pecuniary loss, form loss to the estate of the deceased. Therefore, it would not be inappropriate to award Rs. 15,000. Thus the appellants would be entitled to total compensation of Rs. 25,000 along with interest at the rate of 12 per cent per annum from the date of application, that is, 13.3.1989 till realisation.
18. Though the insurance company in its written statement took a defence that the driver of the tractor was not holding a valid licence but no evidence was led to establish the defence. On the other hand, photostate copy of the licence was produced and the owner stated that the driver was holding a valid driving licence. Therefore, in our opinion, the insurance company cannot escape from its liability to pay compensation of Rs. 25,000.
19. Accordingly, we direct the respondent No. 4 to deposit the amount of Rs. 25,000 with its accrued interest at the rate of 12 per cent per annum from the date of application till deposit within two months from the date of supply of certified copy for disbursement of the same to the appellants/legal representatives of the deceased.
20. In the result, the appeal is allowed with costs. The award of the Tribunal is set aside. Counsel's fee Rs. 750, if pre-certified.
C.C. as per rules.