IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.906/2013 (MV) BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD., KANHANGAD, KASARGOD REPRESENTED BY ITS REGIONAL OFFICE NO.2B, UNITY BUILDING ANNEX MISSION ROAD, BANGALORE-560 027 REPRESENTED BY ITS MANAGER.
(BY SRI.C R RAVISHANKAR, ADV.) AND:
1. SRI. MOHAMMED SHAD SINCE DEAD BY LRS 1(a) SMT. MUNEERA BEGUM AGED ABOUT 60 YEARS W/O LATE ABDUL MUNEER 1(b) SRI MOHAMMED SUHAIL MUNEER AGED ABOUT 37 YEARS S/O LATE ABDUL MUNEER 1(c) SRI USAMAH AGED ABOUT 28 YEARS S/O LATE ABDUL MUNEER ... APPELLANT 1(d) SMT. SUMAIYA AGED ABOUT 25 YEARS D/O LATE ABDUL MUNEER ALL ARE R/AT " FAHAD MANZIL" H.NO.4495/A KINNIMULKY BANK ROAD UDUPI TALUK.
2. SRI NIRMAL BABU P AGED ABOUT 32 YEARS R/O PUNJAVEEKADAPURAM KANHANGAD SOUTH, KANHANGAD KASARGOD DISTRICT-574105.
... RESPONDENTS (BY SRI.K SHASHIKANTH PRASAD, ADV. FOR R1(a) R2- NOTICE D/W V/O DT:12/02/2013 R1(c) & (d) – SERVICE OF NOTICE H/S V/O DT:25.10.2017 R1(b) – SERVED & UNREPRESENTED) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.08.2012 PASSED IN MVC NO.401/2010 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, UDUPI, AWARDING A COMPENSATION OF RS.13,11,000/- I.E. RS.11,79,900/- WITH INTEREST @ 8% P.A FROM THE DATE OF PETITION TILL REALIZATION.
THIS M.F.A. COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The insurance company is before this Court, assailing the judgment and award dated 31.08.2012 passed in MVC No.401/2010 on the file of the Principal Senior Civil Judge and Additional Motor Accident Claims Tribunal, Udupi (hereinafter referred to as 'the Tribunal' for short).
2. The claimant Mohammed Shad filed claim petition under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered by him in a road traffic accident. It is stated that on 05.09.2009, while the claimant was proceeding in his motorcycle bearing registration No.KA-20/Q-3516, a Scorpio vehicle bearing registration No.KL-60/A-7433 came in a rash and negligent manner and dashed to the motorcycle of the claimant. Due to which, the claimant suffered injuries. Immediately after the accident, he was shifted to KMC Hospital, Manipal. It is stated that he was working in Gulf Country, earning Rs.80,000/- per month.
3. On issuance of notice, respondents No.1 and 2 appeared before the Tribunal and filed written statement denying the claim petition averments. The second respondent/insurer also contended that the accident occurred due to the rash and negligent riding of the claimant himself. It is also contended that both the rider of the motorcycle and driver of the Scorpio were not holding valid and effective driving license as on the date of accident.
4. The claimant himself got examined as P.W.1 and also examined the doctor as P.W.2 apart from marking the documents Ex.P1 to Ex.P21. On behalf of the respondents, neither any witness is examined nor marked the document.
5. The Tribunal, on the basis of the material placed before it, awarded total compensation of Rs.13,11,000/- on the following heads:
1. Pain and sufferings :: Rs. 80,000/-
2. For conveyance charges :: Rs. 10,000/-
3. For attendant and nourishing
The insurer being aggrieved by awarding of exorbitant and excessive compensation and also urging contributory negligence is before this Court in this appeal. During the pendency of the appeal, the claimant died on 09.08.2013 and his legal representatives are brought on record.
6. Heard the learned counsel for the appellant/insurer and learned counsel for the respondents/legal representatives of the claimant late Mohammed Shad.
7. Learned counsel for the appellant/insurer would submit that as the claimant died during the pendency of the appeal and the death was not due to accidental injuries suffered by the claimant in the motor vehicle accident, the legal representatives are not entitled for the compensation awarded on the head of future loss of income, pain and suffering, loss of amenities of life and discomfort. The legal representatives of the deceased claimant would be entitled for the compensation towards loss of estate of the deceased. Learned counsel relies upon a Full Bench decision of this Court reported in ILR 1990 KAR 4300 in the case of KANNAMMA v/s DEPUTY GENERAL MANAGER in support of his contention.
8. Per contra, learned counsel for the respondents/legal representatives of the deceased claimant submits that there is already a judgment and award of the Tribunal and the same cannot be interfered with at this stage, on the ground that the legal representatives are not entitled to claim compensation for the personal injuries suffered by the deceased claimant. Thus, prays for dismissal of the appeal.
9. On hearing the learned counsel for the parties and on perusal of the materials, the only point which falls for consideration is as to whether the claimant would be entitled for compensation on the head of loss of future earning capacity, loss of amenities of life and discomfort, pain and suffering, when the claimant dies during the pendency of the claim petition or appeal?
10. Answer to the above point is in the negative for the following reasons:
The accident occurred on 05.09.2009 involving the vehicles bearing registration No.KA-20/Q-3516 and KL-60/A-7433 and the accidental injuries suffered by Mohammed Shad are not in dispute in this appeal. The insurer is before this Court questioning the contributory negligence and quantum of compensation. During the pendency of the appeal, the claimant died on 09.08.2013 and his legal representatives are brought on record. The death is not due to accidental injuries suffered by the claimant and death has no nexus to the injuries suffered by him in the road traffic accident. If that is so, the legal representatives of the deceased claimant would not be entitled for compensation awarded by the Tribunal for the personal injuries suffered by Mohammed Shad. The Full Bench of this court in the decision referred to supra has held as follows:
“(1) The Common Law Rule 'actio personalis moritur cum persona' as embodied in Section 306 of the Succession Act since applies to India, a claim by a person for compensation for personal injuries caused in a motor accident does not, on that person's death not being the consequence of such injuries, survive to his/her legal representatives;
(2) Cause of action for personal injuries being founded on tort (motor accident caused by the tort-feasor), injured person's claims for damages under Heads recognised by Common Law and not by Statute, based on such tort and not independently of it, cannot, on such person's death, survive for prosecution by his/her executors or administrators (or legal representatives) since Section 306 of the Succession Act, in express terms, declares that the cause of action in favour of a person for personal injuries (tort) does not survive on such person's death to his/her executors or legal representatives;
(3) A claim by a person for compensation for personal injuries, be it pending before the Claims Tribunal, be it pending in the first Appellate Court or be it pending in the second Appellate Court, does not survive, on such person's death not caused as a consequence of personal injuries, to his legal representatives;
(4) A claim of a person for compensation for personal injuries if has resulted in award of the Claims Tribunal or decree of the Appellate Court, survives to his legal representatives on his death, even if such death is not the consequence of personal injuries sustained by him and hence, if such award or decree is disputed in the first Appellate Court or the second Appellate Court, the same could be resisted by the legal representatives of the claimant;
(5) Division Bench decision of this Court in Muniyappa's case (supra) related to an appeal by the claimant where enhanced compensation was sought only for personal injuries suffered in the motor accident by the claimant and where no compensation or enhanced compensation was sought by the claimant for properties damaged or lost as a result of the motor accident;
(6) Legal position enunciated in the Division Bench decision of this Court in Muniyappa's case (supra) as regards survival of cause of action in personal injury claims arising out of motor accidents being well in accordance with the law laid down on the matter in the Supreme Court decisions in Melepurath's case (supra) and M.
Veerappa's case (supra) has to be upheld; and (7) Legal position stated in Kongara Narayanamma's case (supra), Thailammai's case (supra), Jotiram's case (supra) and Samptilal's case (supra) as regards survival of cause of action in personal injury claims arising out of motor accidents by concerned learned Judges, not being in accordance with the law laid down in the matter by the Supreme Court decisions in Melepurath's case (supra) and M. Veerappa's case (supra), has to be dissented.
Further, this Court at paragraph 11 has held as under:
11. However, before answering the question referred for decision by the Full Bench, one important aspect, which directly bears on the question, needs consideration.
A person, who has sustained injury in a motor accident, is entitled to make a claim for compensation for such injury in person or through his/her authorised agent as provided for under Clause (a) or Clause (c), as the case may be, of Sub-section (1) of Section 110A of the Act. Such person or an authorised agent is also entitled to make a claim for compensation for loss of his/her property in the same motor accident as provided for under Clause (aa) of Sub-section (1) of Section 110A of the Act, apart and distinct from his/her claim for personal (bodily) injury. When the person making claims for compensation both for personal injury and loss of property dies, there can be no impediment for legal representatives of such person to prosecute the claim for compensation for loss of property as surviving to them. In so far as such person's claim for compensation for personal injuries is concerned, the same cannot, on his/her death, not occurring as a consequence of personal injuries, survive to his legal representatives because of the Common Law Rule 'actio personal is moritur cum persona' found embodied in Section 306 of the Succession Act. Then, does such person's claim for personal injuries survive on his death occurring as a consequence or result of personal injuries, to his/her legal representatives, is the important aspect needing consideration. Clauses (b) and (c) of Sub-section (1) of Section 110A of the Act, in express terms, entitle the legal representatives of a person who dies as a result of (motor) accident to claim compensation for such death. A person dying as a result of the accident, cannot mean anything other than the person dying as a result of personal (bodily) injuries sustained by him/her in the accident. If the death of the person occurs instantaneously as a result of severe bodily injuries sustained by him in the motor accident, there would be no scope for such person's legal representatives to claim compensation for his/her personal injuries. But if the death of the person, undoubtedly, occurs as a result of bodily injuries sustained by him/her in the (motor) accident, but belatedly, say, after four months, when still in an hospital obtaining medical treatment, law enables his/her legal representatives to claim compensation under various heads, such as, expenses incurred for obtaining medical treatment for him/her, loss of his/her earnings between the date of accident and the date of death, pain and suffering undergone by him/her due to bodily injuries sustained. If claim for compensation under such heads made by the person injured or his/her authorised agent is pending adjudication either before the Claims Tribunal or an Appellate Court, there can be no valid reason, as to why, on such person's death, such claim for compensation shall not survive to his/her legal representatives and they be permitted to prosecute the claim as loss suffered by the estate of the deceased. Claim for such compensation made by the person injured as loss to his/her estate on his/her death must be regarded as surviving, for even otherwise they would be entitled to make a claim in that behalf on the death of the person injured as a consequence of bodily injuries sustained in the motor accident as provided for under Clauses (b) and (c) of Sub-section (1) of Section 110A of the Act. This would be the correct legal position, which becomes evident when seen from yet another angle, to wit, the cause of action for claim for compensation for personal injuries by the person injured and the cause of action for the claim for compensation for the death of the person injured as a consequence of such injuries, by his legal representatives, is common - the motor accident caused by the tort-feasor.
A Division Bench decision of the Calcutta High Court in Piriska Rozaria's case (supra), which is referred to while examining Kongara Narayanamma's case (supra), can be said to have given recognition to the said position of law when it has held in deciding the case before it that a claim for compensation made under Clause (a) of Section 110A(1) of the Act for personal injuries could be prosecuted on the death of the claimant by his legal representatives if such death had ensued or occurred as a consequence or result of the physical injuries sustained by him in the motor accident, provided such claim did not come in conflict with that made by the legal representatives under Clause b) of Section 110A(1) due to death of the claimant, occurring as a result of the injuries sustained by him in the motor accident.
It can, therefore, be concluded that a person's claim for compensation for personal injuries under the head loss to his/her estate, can, on his/her death as a consequence of such injuries, be prosecuted by his/her legal representatives, if they do not include a claim for compensation under that head, as and when they file a claim petition under Clause (b) of Sub-section (1) of Section 110A of the Act, on the death of the person injured.”
11. Reading of the extracted portion of the above judgment makes it clear that the legal representatives would be entitled to claim compensation under the head loss of estate of the deceased, which means, the claimants would be entitled for the expenses incurred for treatment of the deceased as well as miscellaneous expenses. Thus, the claimants would be entitled for compensation on the head of medical bills, attendant charges, nourishing food and conveyance. The claimants would not be entitled for compensation awarded by the Tribunal on the head future loss of income, pain and suffering, loss of amenities in life and discomfort. Thus, the claimants would be entitled for the compensation awarded by the Tribunal on the following heads:
1.Medical Bills :: Rs.8,00,000 2.Conveyance charges :: Rs. 10,000 3.Attenandant, nourishing food :: Rs. 15,000 Total Rs.8,25,000 Thus, the legal representatives of the deceased claimant would be entitled for total compensation of Rs.8,25,000/- with interest at the rate of 6% p.a., from the date of petition till realization as against Rs.13,11,000/- awarded by the Tribunal.
12. Accordingly, the appeal is allowed in part and the judgment and awarded dated 31.08.2012 passed in MVC No.401/2010 on the file of the Principal Senior Civil Judge and Additional MACT, Udupi is modified to the above extent. The claimants would be entitled to Compensation of Rs.8,25,000/-, thereby the Compensation awarded by the Tribunal is reduced by Rs.4,86,000/-.
The Tribunal has saddled 10% contributory negligence on the deceased claimant which would remain intact. Accordingly, the legal representatives of the deceased claimant would be entitled to Rs.7,42,500/- with interest at the rate of 6% p.a., from the date of petition till realization.
Sd/- JUDGE mpk/-*CT:bms