Rajasthan High Court - Jaipur
Naseeban And Anr. vs Surendra Pal And Ors. on 13 February, 1995
Equivalent citations: I(1995)ACC537, 1996ACJ818, AIR1996RAJ91, 1995(2)WLC448, 1995(1)WLN386
JUDGMENT R.S. Kejriwal, J.
1. This miscellaneous appeal has been directed against the order dated 13-10-1993, passed by M.A.C.T., Kota, holding that after the death of claimant, his legal representatives cannot be brought on record as the claim does not survive.
2. Brief relevant facts of the case are that in a motor accident which took place on 15-7-1989, the claimant Hafiz Abdul received injuries. He filed an application for award of compensation under Section 16 of the Motor Vehicles Act, 1988, (for short the 'Act'), claiming following compensation:-
1. Damage on account of Rs. 25,000-00 pain and suffering and mental agony.
2. Medicine and treatment Rs. 5,000-00 expenses
3. Loss of earning in pre- Rs. 1,00,000-00 sent & future loss in ------------
business as well Rs. 1,25,000-00
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3. During the pendency of the claim petition, the claimant Hafiz Abdul died. His legal heirs i.e. the appellants filed an application for substitution. That application was rejected by the Accident Claims Tribunal by its impugned order on the sole ground that after the death of claimant Hafiz Abdul Mazid the claim does not survive and as such the legal heirs cannot be substituted. This order has been challenged in this appeal.
4. Counsel for the appellant submits that the order passed by the Claims Tribunal is perverse. The rulings on which the judgment is based are not relevant for the decision of the present case. The maxim Actio Personalis Mortiur Cum Persona relates only to the personal or bodily injuries and not to the loss caused to the estate of the deceased by the tort-feasor. In support of his arguments, he placed reliance on judgments of this Court passed in Sampati Lal v. Hari Singh, 1985 Raj LW 220 : (AIR 1985 Raj 174) and L.Rs. of Om Prakash, Smt. Maya v. Mahendra Pal, (1989) 2 Acc 202.
5. On the other hand, counsel for the respondents submits that the whole claim dies with the death of the claimant. In support of his arguments, he placed reliance on the judgments passed in Calcutta Insurance Ltd. v. Bhupinder Singh, 1970 Acc CJ 344 (Punj & Har); Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, 1986 Acc CJ 440 : (AIR 1986 SC 411) and Om Sharan v. Bansidhar, AIR 1981 (NOC) 202 (Raj).
6. I have heard counsel for the parties and gone through the judgments cited by them.
7. Section 306 of the Indian Succession Act provides that the demands and rights of action of deceased shall survive to his executor/ administrator, 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. According to this Section, only the claims to the personal or bodily injuries will the with the death of the claimant and not the claim regarding the loss caused to the estate of the deceased.
8. In Sampati Lal's case, AIR 1985 Raj 174 (supra), this Court held that the maxim Actio Personalis Mortiur Cum Pers'ona relates only to the personal or bodily injuries and not to the loss casued to the estate of the deceased by the tort-feasor. The same view was taken by this Court in L.Rs. of Om Prakash, Smt. Maya's case, (1989) 2 Ace 202 (supra).
9. The judgments passed in Calcutta Insurance Ltd.; 1970 Ace CJ 344 (Punj & Har) and Om Sharan's case, AIR 1981 NOC 202 (Raj) (supra) are not on the point that the loss caused to the estate will also die with the deceased. The judgment of Hon. Supreme Court passed in Melepurath Sankunni's case, AIR 1986 SC 411 (supra) also supports the view taken in Sampati Lal's case, AIR 1985 Raj 174(supra). In that case the claim of the claimant was decreed. During the pendency of the appeal the claimant died. The Apex Court held that decretal debt forms part of the estate of the deceased and the appeal from a 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 deceased respondent-plaintiff. Under these circumstances, in my opinion, the claim regarding damages on account of pains, suffering and mental agony to the deceased will not survive but the claim regarding loss to the property will survive and the appellants are entitled to continue the proceedings. The order passed by the learned Judge refusing to take on record the legal heirs of the deceased claimants is perverse and deserves to be set aside.
10. Consequently, I allow the appeal, set aside the order dated 13-9-1983, and allow the substitution application filed by the appellants. The Tribunal is directed to decide the claim expeditiously.