JUDGMENT
S.N. Kapoor, J.
1. Heard.
2. This judgment shall dispose of the above mentioned two appeals bearing No. FAO No. 95/1995 filed by the claimants, and FAO No. 219/1994 filed by the Insurance Company against a common award dated 12th August, 1994 passed by Sh. Charanjit Jawa, Judge, MACT, Delhi.
3. The facts of this case in brief are that Sh. Jagannath, a mason aged about 37 years suffered injuries in a accident which took place on 4th January, 1979, caused by the negligent driving of Jaipal Singh, while driving truck No. DLL 7134. His right leg was ultimately amputated. If has further come in the statement of P.W.1, injured, that after suffering injuries he was taken to the police station in the Mehrauli. He was bleeding profusely. He regained consciousness in Safdarjung Hospital. He further stated that he was put under plaster and after about 13-14 days, his leg was amputated above knee. No cross-examination was addressed on this point. This is corroborated by the statement of the Dr. V. N. Maitra of Safdarjung Hospital. Unfortunately, during the prolonged period of litigation Jagannath expired on 9th November, 1985. In case one goes by the definition of the term “total disablement” specified in Para 1 of Schedule (i) of the Workmen’s Compensation Act, 1923 then the injured suffered injury mentioned in item No. 19 “19 -Amputation below middle thigh to [8.89 cms.] below knee i.e. 60%.
4. In terms of the principles laid down in judgment of the Supreme Court in Sarla Dixit and another vs. Balwant Yadav & Ors., 1996 ACJ 581 as well as in General Manager, Kerala State Road Transport Corporation vs. Susamma Thomas, 1994 ACJ 1 about calculation of loss of income and dependency, even in an injury case the principle regarding consideration of future prospects cannot be ignored in such like matters for the injury is not temporary and it has caused virtually permanent disability to the extent of 60%.
5. If one goes by 60% permanent disability and consider the future prospects then double the amount of his monthly income of Rs.500/- ,is required to be treated as gross average monthly income i.e. at Rs.1000/- per month. The question of one-third deduction in injury case will not arise. However, his loss of income would not exceed more than 60%, for he would certainly be earning to the extent of 40% in terms of The Workmen’s Compensation Act itself. Therefore, the loss should be considered at the rate of Rs.600/- per month. Since he died otherwise, within the period of 7 years from the date of accident. He had suffered monetary loss of Rs. 600 x 12 x 7 = Rs.50,400/- and from that point of view if one calculates the amount of loss of income awarded by the Tribunal, the amount awarded by the learned Tribunal to the tune of Rs.15,000/- is on lower side.
6. It is submitted by the learned Counsel for the respondent that the claimants are not entitled to any amount towards medical expenses, transport expenses, nourishment expenses and other miscellaneous expenses. It is submitted that no claim would survive in this regard. The learned Tribunal has relied upon the judgment in the case of Legal Representatives of Om Prakash: Maya and others vs. Mahendra Pal and others 1989 ACJ 1114. In that case a similar question arose as to how far the legal representatives of an injured claimant could pursue the petition in terms of Section 306 of The Indian Succession Act, 1925. Section 306 of the Indian Succession Act reads as under:-
“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 favor 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 persons 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.”
Illustrations
(i) A collision takes place on a railway in consequence of some neglect or default of an official, and a passenger is severely hurt, but not so as to cause death. He afterwards dies without having brought any action. The cause of action does not survive.
(ii)`A’ sues for divorce. `A’ dies. The cause of action does not survive to his representative.”
7. Since in this matter cause of action did not relate to defamation or assault, as defined in Indian Penal Code, 1860 or other persons injuries not causing death of the party, the matter would be governed by Section 306 of the Indian Succession Act. There cannot be any doubt that the relief of compensation sought could not be enjoyed by the deceased appellant, but at the same time in case the compensation was awarded on the day the petition was filed, either the dependants of the deceased would have certainly enjoyed it during the life-time of the injured or it would have been added to the estate.
8. It may further be mentioned that in Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, 1986 ACJ 440 referred to in Piraniya v. Makhan (supra) relating to case of defamation where the right to sue did not survive, but even in that case since the decree had been passed, it became a question of detrimental to the estate of the plaintiff-respondent which his legal representative was entitled to uphold and defend and was, therefore, entitled to be substituted in place of respondent-plaintiff.
9. In the case of Legal Representatives of Om Prakash: Maya and others vs. Mahendra Pal and others 1989 ACJ 1114 the learned Single Judge of the Rajasthan High Court observed in Para 6 as under:-
“6. .I have heard both the learned Counsel and have also perused the record. It is true that personal action dies with the person, this principle of actio personalis moritur cum persona has been recognised by the Indian courts also. But the exception is contained in section 306 of the Indian Succession Act which saves the action to the extent of loss to the estate of the deceased. This has been laid down by this court in Sampati Lal v. Hari Singh, 1985 ACJ 539 (Rajasthan). Therefore, the view taken by the learned Tribunal that all the actions pertaining to the person prior to his death die with the person is not correct. Thus, the contention of Mr. Parihar that except item Nos. (a) and (c) other claims mentioned in the claim petition can still survive and it can be still tried by the learned Tribunal, appears to be correct. Thus, I uphold the contention of Mr. Parihar and hold that the claims raised by the legal representatives of the deceased in the claim petition mentioned therein except item Nos., (a) and (c) can be tried by the learned Tribunal.”
10. In the case in hand the matter does neither relate to defamation; nor to any assault; nor to other persons injuries; nor causing death of the parties. Here also death has occurred but after a lapse of time and further relief could be enjoyed by the parents only during their life-time. The parents of the present claimants being partially dependent on the deceased and as such were entitled to claim compensation in the shape of loss to the estate of the deceased. Consequently, cause of action to receive amount of compensation would survive in favor of their parents (original claimants). The present claimants being legal representatives of the person entitled to receive compensation shall also be entitled to receive it.
11. Further in the case of N. Sivammal and Others vs. Managing Director, Pandian Roadways Corporation and another (1985) 1 Supreme Court Cases 18, a similar question arose before the Supreme Court and in Para `4′ the question of mental agony suffered by the claimants was rejected but mental agony and pain suffered by the deceased was taken to be the loss to the estate of the deceased. Para `4′ being relevant is being reproduced here:-
“4. Thereafter, the High Court proceeded meticulously to examine every item of compensation included in the award. The High Court held that award of Rs.5000/- under the head mental agony suffered by the claimants as a result of the death of the deceased cannot legally be sustained. This is only the different way looking at the same thing which is legally permissible. Muthukrishnan lived for 19 days since the accident and he was throughout under a shadow of death. He had suffered severe injuries. He must have suffered continuous pain and compensation was admissible for pain and suffering, suffered by the deceased. Therefore, the amount of Rs.5000/- which the High Court held inadmissible, is legitimately admissible under another head and therefore by changing the head we restore the amount of Rs.5000 awarded by the Tribunal.”
12. If seen from this point of view the amount spent by the injured/deceased on transport and nourishment would be treated to be loss to his estate.
13. As regards other miscellaneous expenses, it is submitted by the learned Counsel for the respondent that it was unheard of. In case of amputation of a leg above knee and below middle of the thigh, if a specified shoe is required to be purchased or if crutches are required to be purchased, then it was not unjust on the part of the learned Tribunal to award a sum of Rs.5000/- , considering the expenditure involved in these two items, though it would have been better in case the injured would have claimed this amount specifically by saying so for they are necessary incidental expenditure in case of such an injury. Accordingly, the claimants/legal representatives are entitled to this amount. The appellant is thus entitled to loss of income amounting to Rs.50,400/-. The claimants/legal representatives of the injured/deceased are also entitled to medical expenses to the tune of Rs.3000/-, nourishment expenses of Rs.3500/- , in addition to the miscellaneous expenses amounting to Rs.5000/-. Thus, in addition to the amount of Rs.50,400/- the claimants/legal representatives are further entitled to claim a sum of Rs.13,500/- i.e they are entitled to claim a sum of Rs.63,900/-.
14. The legal representatives are also entitled to claim interest on this amount, from the date of the filing of the petition itself for if the injured/deceased was to be given compensation on the date of filing of the application, then the injured/deceased was entitled to claim interest for the delay and this amounted to loss to the estate of the deceased and accordingly it is covered by excepted matters under Section 306 of The Indian Succession Act, 1925. Therefore, to say that the legal representatives are entitled to claim interest only on the date of death of injured/deceased may be technically justified but the result remains the same for then it would loss to the estate of the injured/deceased. In any case the legal representatives are entitled to claim interest from the date of death.
15. Now, as regards the question of rate of interest, the injured was entitled to get interest @ 12% p.a. from the date of application till his death and the amount so calculated being loss to the estate of the injured could be claimed by the legal representatives also. The legal representatives in any case are entitled to claim interest @ 12% p.a. on the amount of compensation as mentioned herein above, totalling to Rs.63,900/-. They are entitled to claim interest from the date of death of the injured/deceased @ 12% p.a. till 31st March, 2001 and @ 9% p.a thereafter.
16. Now, the question of apportionment amongst the legal representatives comes. All the legal representatives being the heirs of Class-I are entitled to share the amount of compensation equally.
17. As regards the liability of the Insurance Company, there is certainly substance in what has been urged by the learned Counsel for the respondent that in such a matter where specific policy have not been proved on record indicating additional payment, the claimants could not claim any amount beyond the statutory liability of Rs.50,000/-. On the other hand, learned Counsel for the appellants submitted that the policy was within the knowledge of the Insurance Company. They were asked to produce the same, but they failed to reproduce the same. Instead they produced just a notice sent to the owner and as such adverse inference was rightly drawn by the learned Tribunal. It may be mentioned that R.W.1 was examined to produce the same. This is what could be expected from the Insurance Company in the given circumstance of non-availability of the record in their office. This is one facet of the problem. Another facet is that if any petitioner does not plead that additional payment was made towards additional responsibility of the Insurance Company then no such inference could be drawn in view of the provisions of Section 114 of Evidence Act. Who would be the beneficiary? The insured of course! He was required to prove payment of additional premium for enhanced liability. The insured despite giving notice, did not come forward to prove the policy indicating that the respondent Insurance Company was liable to pay beyond Rs.50,000/-. In such a circumstance, the Insurance Company could not be held to be liable beyond Rs.50,000/-. However, the Insurance Company cannot shirk its responsibility to pay interest on the sum of Rs.50,000/- till the payment for they used it for their benefit by detaining it. The appellants/legal representatives cannot press against the insurance company any claim beyond Rs.50,000/- with interest.
18. However, the respondent No. 1 & 2 are certainly liable, jointly and severally, along with the Insurance Company to pay the amount of the award. It is clarified again that the liability of the Insurance Company is limited to the extent of Rs.50,000/- plus interest on that sum as award.
19. Accordingly, the appeals bearing No. 95/1995 and 219/94 stands disposed of along with all the pending applications.
20. A copy of this order be placed in the file of FAO No. 219/1994.