Smt. Bhagwati Bai And Anr. vs Bablu Mukund And Ors
Madhya
Pradesh High Court
Smt.
Bhagwati Bai And Anr. vs Bablu Mukund
And Ors. on 4 November, 2006
Equivalent
citations: 2007 ACJ 682, AIR 2007 MP 38, 2007 (2) JCR 115 MP
Author:
A Patnaik
Bench:
A Patnaik, A Gohil, S Samvatsar
ORDER
A.K. Patnaik, C.J.
1.
This is a reference made by the Division Bench of this Court to the Full Bench
in a motor accident claims appeal.
2.
The background facts in which the reference has made, are that prior to the
accident, Pancham Singh was a driver working in the Madhya Pradesh State Road
Transport Corporation. On 29-9-1998 Pancham Singh while going towards his house
in the noon, was hit by a Bajaj M-80 two wheeler bearing MP 07-Y/4003 driven by
the respondent No. 1, owned by the respondent No. 2 and insured with the respondent
No. 3. Pancham Singh filed a claim case under Section 166 of the Motor Vehicles
Act, 1988, on 1-4-1999 before the 1st Additional Motor Accident Claims
Tribunal, Gwalior, which was subsequently numbered as Claim Case No. 33/2002,
alleging that as a result of rash and negligent driving of the said two wheeler
by the respondent No. 1, he suffered fracture in the knee of the right foot and
wrist of the left hand and he was admitted in the hospital and had to undergo treatment.
In the claim petition, Pancham Singh claimed compensation of Rs. 6,50,000/- as
per details hereinbe-low--
(i)
Mental & physical pain during Rs.
1,00,000.00
hospitalization
and thereafter.
(ii)
Permanent disability/deformity. Rs.
1,00,000.00
(iii)
Loss of longevity of life due to the Rs.
1,00,000.00
injuries
sustained in the accident.
(iv)
Expenses incurred on treatment Rs.
1,00,000.00
medicines,
diet & transportation etc.
(v)
Mental torture sustained by wife and Rs.
0,50,000.00
children
due to the accident,.
(vi)
Loss of employment and loss of earnings Rs.
2,00,000.00
due
to the accident.
Total:
Rs.
6,50,000.00
3.
During the pendency of the claim petition, Pancham Singh died on 29-5-1999 and
the present appellants, namely the wife and the son of Pancham Singh, were substituted
in place of Pancham Singh in the said claim case. Finally, the Tribunal made an
award of only Rs. 10,000/- in favour of the claimants on 14-8-2003. Aggrieved
by the said award, the appellants have filed this appeal for enhancement.
4.
When the appeal was taken up for hearing by the Division Bench on 7-4-2006, Mr.
S.S. Bansal, learned Counsel appearing for the respondent No. 3/Insurance
Company, cited the judgment of the Division Bench of this Court in Umedchand
Golcha v. Dayaram and Ors. 2001 (1) JLJ 365, in which the Division Bench has
held on the basis of the principle contained in Section 306 of the Indian Succession
Act, 1925, that on the death of the claimant who had suffered the personal
injury in the accident, the legal representatives of the claimant would be
entitled to only loss of estate and rest of the claims of such person who had
suffered injury, shall abate. Mr. Devendra Choubey, earned Counsel appearing
for the appellants/claimants, on the other hand, submitted that this was not
the principle laid down in Section 306 of the Indian Succession Act, 1925, and
in any case, the provision of Section 306 of the Indian Succession Act, 1925,
did not apply to a claim case for personal injury filed under the Motor
Vehicles Act, 1988.
5.
Considering the far-reaching consequences of the aforesaid judgment of the
Division Bench in Umedchand Golcha v. Dayaram and Ors. (supra), on claims for
compensation for personal injuries on the rights of the legal representatives
of the claimant, the Division Bench passed an order on 21-4-2006 referring the
following question of law to a Full Bench :
Whether
a claim for personal injuries filed under Section 166 of the Motor Vehicles
Act, 1988, except as regards the estate of the claimant would abate on the
death of the claimant or would survive to his legal representatives ?
We
have heard the learned Counsel for the parties on the aforesaid question of law
referred to us.
6.
Mr. Devendra Choubey, learned Counsel appearing for the appellants, submitted
that under Sub-section (1) of Section 166 of the Motor Vehicles Act, 1988, an
application for compensation arising out of an accident involving bodily injury
to a person arising out of use of a motor vehicle, can be filed not only by the
person, who had sustained injury, but also by all or any of the legal representatives
of the deceased or by any agent duly authorised by the person injured or all or
any of the legal representatives of the deceased. He submitted that therefore,
an application for compensation arising out of an accident involving bodily
injury to a person, can also be continued by the legal representative of person
who had suffered bodily injury. He further submitted that once an application
is filed by the person who had sustained injury for compensation under Section
166 of the Motor Vehicles Act, 1988, such an application will not abate on the
death of the person who had sustained injury because the provisions of Order 22
of the Code of Civil Procedure, 1908, relating to abatement do not apply to motor
accident claim cases as has been held by a Division Bench of this Court in
Chuharmal and Ors. v. Wall Mohammad and Ors. 1968 JLJ 1013. He submitted that
the Motor Vehicles Act, 1988, is a Special Act whereas the Indian Succession
Act, 1925 is a General Act and as per the well settled principles of statutory
interpretation, the provisions of Motor Vehicles Act, 1988, will apply and the
provisions of Indian Succession Act, 1925, will not apply to motor accident
claims cases and therefore, Section 306 of the Indian Succession Act, 1925,
which provides that all rights to prosecute or special proceeding existing in
favour of a person will survive to his executors or administrators except
personal injury not causing the death of the party, will not apply to motor
accident claims cases and only Section 166 of the Motor Vehicles Act, 1988,
will apply to such motor accident claims cases.
7.
Mr. S.S. Bansal, learned Counsel appearing for the respondent No. 3/Insurance
Company, on the other hand, submitted that in Umedchand Golcha v. Dayaram and
Ors. (supra), the Division Bench, after considering various judgments of the
Supreme Court as well as other High Courts at length, has come to a conclusion
that so far as the claim for personal injury is concerned, it would abate on the
death of original claimant, but not a claim which pertains to the loss to the
estate of the injured. He submitted that this view has been taken by the
Division Bench in the aforesaid case on the basis of the common law rule
"actio personalis moritur cum persona "as well as the principle
contained in Section 306 of the Indian Succession Act, 1925. He relied on the
provision of Section 1 of the Legal Representatives Suits Act, 1855, which
provides that an action may be maintained by the representatives of any person
deceased for any wrong committed in the lifetime of such person, which has
occasioned pecuniary loss to his estate and not for any personal injury
suffered by such person during his lifetime. He submitted that the view taken
by the Division Bench of this Court in Umedchand Galena v. Dayaram and Ors.
(supra), that the claim for personal injury would abate on the death of the
original claimant except as regards loss to the estate of the injured is,
therefore, a correct view of the law.
8.
Sub-section (1) of Section 166 of the Motor Vehicles Act, 1988, on which Mr.
Choubey relies on, is quoted hereinbelow:
Section
166. Application for compensation.--
(1)
An application for compensation arising out of an accident of the nature
specified in Sub-section (1) of Section 165 may be made-- (a) by the persons
who has sustained the inquiry; 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 authorised by the
person injured or all or any of the legal representatives of the deceased, as
the case may be: Provided that where as the legal representatives of the
deceased have not joined in any such application for compensation, the application
shall be made on behalf of or for the benefit of all the legal representatives
of the deceased and the legal representatives who have not so joined, shall be impleaded
as respondents to the application. (Emphasis supplied)
9.
A reading of Sub-section (1)(a) of Section 166 of the 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 dies 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 the 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, learned Counsel appearing for the respondent No.
3/Insurance Company, is quoted herein below:
Section
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
deceased, survive to and against his executors or administrators; except cause
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 parly, 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.
11.
In Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair , the
Supreme Court observed that the principle contained in Section 306 of the
Indian Succession Act, 1925, will apply not only to executors or administrators
but also to other legal representatives. Paragraph 8 of the judgment of the
Supreme Court in Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair
(supra), as reported in the AIR, is quoted hereinbelow: 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, tor 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. 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, is quoted herein
below: 'Section 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 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 the 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 the 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 the Motor Vehicles Act,
1988.
14.
Further, under Section 1 of the Legal Representatives Suits Act, 1855, an
application for personal injury suffered by a person during lifetime in a motor
accident can be maintained and continued by the 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 Paragraph 21 of the judgment of the Division Bench of
this Court in Umedchand Golcha v. Dayaram and Ors. (supra), 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, 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 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 diet, 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
life-lime. 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 born by his legal representatives. Therefore, it is
held that the legal representatives can ask for loss to the estate of these
items by production of satisfactory evidence unless Court is able to draw
lifetime conclusion about such expenditures from out of the estate, from the
facts and circumstances and on the basis of experience.
15.
In the result, we are of the considered opinion that a claim for personal
injury filed under Section 166 of the Motor Vehicles Act, 1988 would abate on
the death of the claimant and would not survive to his legal representatives
except as regards the claim for pecuniary loss to the estate of the claimant.
The matter will now be placed before the Division Bench for assessment of the
pecuniary loss caused to the estate of the deceased Pancham Singh on account of
the motor accident suffered by him on the basis of pleadings and proof before
the Tribunal/Court.
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