BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 05/04/2006 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C.M.A.No.1218 of 1997 The Managing Director, Dheeran chinnamalai Transport Corporation, Trichy. ...Appellant Vs 1.Mrs.Padmavathi 2.Minor Senthil Kumar 3.Minor Nalini 4.Minor Balamani ...Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, against the judgment and decree made in M.C.O.P.No.314 of 1995, dated 30.04.1997, on the file of the Motor Accidents Claims Tribunal - Sub Court, Thanjavur. !For Appellant .... Mr.K.Baskara Pandian for Ms.Raghu Associates ^For Respondents .... Ms.MD.Ashfaq Rafi for R1 to R4. :JUDGMENT
This appeal has been preferred against the award of compensation passed in
M.C.O.P.No.314 of 1995, dated 30.04.1997, on the file of the Motor Accidents
Claims Tribunal – Sub Court, Thanjavur. The respondent / State Transport
Corporation is the appellant herein.
The background facts stated in the additional petition filed by the petitioners
sans unnecessary details are as follows:
2. The appellant is the respondent in M.C.O.P.No.314 of 1995, on the file
of the Motor Accidents Claims Tribunal – Sub Court, Thanjavur. The first
claimant was working as a load man in a rice Mill. On 13.11.1990, at about
04.30 p.m., he was proceeding from north to south on the Gandhiji Road,
Thanjavur in a cycle along with his brother and the cycle was pedaled by the
brother of the first claimant along the left hand of the side of the road. At
that time, the bus bearing Registration No.TN-45-N-0090, belonging to the
respondent was driven by its driver in a rash and negligent manner, dashed
against the cycle in which the first claimant along with his brother was
proceeding. The first claimant has sustained a fracture on the pelvic bone in
the hip and the passage of the urethra was also distracted. He was immediately
taken to the Government Hospital at Thanjavur and admitted as an inpatient on
13.11.1990 itself and he was discharged only on 21.11.1990. Again, he was
admitted as an inpatient in the hospital on 22.11.1990 for further treatment.
He died on 02.11.1995. The second claimant is the wife of the first claimant
and the claimants 3 to 5 are the children. The claimants have filed a claim
petition claiming Rs.1,00,000/- towards compensation.
3. The respondent in his counter has contended that the accident had not
occurred due to the rash and negligent driving of the driver of the bus bearing
Registration No.TN-45-N-0090, belonging to the respondent, but only due to the
negligence of the first petitioner / claimant. The first petitioner did not die
due to the injuries, he had sustained in the accident. There is no cause of
action to the petitioners / claimants 2 to 4 to continue the claim petition.
The bus bearing Registration No.TN-45-N-0209 was registered in the R.T.O’s
Office on 26.11.1990.
4. Before the learned Tribunal, P.W.1 to P.W.4 were examined and Exs.P.1
to P.17 were marked on the side of the claimants. R.W.1 and R.W.2 were examined
and Ex.R.1 was marked on the side of the respondent.
5. After going through the oral and documentary evidence, the learned
Tribunal has held that the accident had occurred only due to the rash and
negligent driving of the driver of the bus bearing Registration No.TN-45-N-0090
and the learned Tribunal has awarded Rs.50,000/- towards compensation under the
head pain and sufferings experienced by the deceased / first claimant, at the
time of taking treatment as an inpatient.
6. Aggrieved by the award of compensation of the learned Tribunal, the
respondent has preferred this appeal.
7. Now, the point for determination in this appeal is whether the award of
compensation given by the learned Tribunal in M.C.O.P.No.314 of 1995, dated
30.04.1997, under the head pain and sufferings, is sustainable for the reasons
stated in the Memorandum of appeal in C.M.A.No.1218 of 1997?
The Point:
8. The learned Counsel for the appellant would contend that according to
the claimants, the accident had occurred only on 13.11.1990, at about 04.30
p.m., and as the first claimant, the injured had preferred a claim petition in
M.C.O.P.No.314 of 1995 and pending trial, the first claimant died on 02.11.1995
and his legal representatives namely, the claimants 2 to 5 were impleaded, have
filed an additional claim petition. The learned Counsel would attack the award
on the ground that for the pain and sufferings, the first claimant had
experienced due to the injuries, he had sustained in the accident, his legal
representatives are not entitled to get any compensation under Section 306 of
the Indian Succession Act. Because, the cause of action to sue does not survive
to his legal representatives. The learned Counsel would contend that if at all
the legal heirs of the deceased are entitled to any compensation, they are
entitled to only compensation under the head, medical expenses incurred by the
deceased as the loss of estate to the deceased. In support of this contention,
the learned Counsel for the appellant relied on the decision of this Court in
Thailammai and others Vs. A.V.Mallayya Pillai and others reported in 1979 TLNJ
461. The dictum was delivered in a C.R.P filed before this Court against the
order passed by the learned Tribunal rejecting the petition filed by the legal
representatives of the injured, one Adaikalam in a motor accident, who died
subsequent to the filing of the claim petition, pending enquiry of the petition.
The deceased wife, son and two daughters filed an application for bringing them
on record as legal representatives of the deceased. But the said petition was
dismissed by the learned Tribunal for which the revision was preferred before
this Court. The learned Tribunal in that I.A has held that as per Section 306
of the Indian Succession Act, the action does not survive for the legal
representative, relying on an earlier decision of this Court in C.P.Kandaswamy
Vs. Mariappa Stores (AIR 1974 Mad. 178). In the revision, the learned Judge of
this Court has held that Section 110-A of the Motor Vehicles Act, was enacted by
the Parliament not to restrict the statutory right to claim damages to the
injured alone, but in a case of claims arising out of motor accidents, clause
(b) provides that the cause of action would survive to the legal representatives
where death has resulted from the accident and that this was an exception to the
general principle “Actio personalis moriture cum personal”. It has been held by
the learned Judge as follows:
“It is true there is a distinction between case of death resulting from
the accident and a case of other personal injuries not causing the death of the
party, but the party dying subsequently during the pendency of the proceedings
not due to the accident, distinction so far as as the right to claim damages.
The claims in all these cases are now statutory rights. Therefore there appears
to be no reason to restrict the right to the injured alone. Any way that point
need not be decided in this case at this stage. C.P.Kandaswamy Vs. Mariappa
Stores (A.I.R. 1974 Mad.178) is distinguishable. In that case, the claim was
for a sum of Rs.25,000/-. This was made up of Rs.1,000/- towards medical
expenses, Rs.4,000/- towards of loss of professional income, Rs.10,000/- for
shock, pain and suffering and another sum of Rs.10,000/- for the permanent
partial disability suffered by him on account of the accident. Rs.5,000/- which
was granted by the Tribunal made up of Rs.2,000/- towards loss of professional
income, Rs.2,000/- towards shock, pain and suffering as a result of the injuries
sustained by him and Rs.1,000/- for medical expenses and the rest of the claim
was disallowed. It is against that order an appeal was pending. With reference
to shock, pain and suffering and loss of professional income, it was held that
the cause of action did not survive…..
But in this case even that difficulty does not arise as the claim for
damages included the value of the cycle which is damages to property. Certainly
that claim relating to value cycle surviving for the legal representatives is a
damage done by any person to the estate of the deceased. Even on the question
of recovering the actual expenses incurred by the deceased, I have no doubt that
the claim will survive since that amount if had not been spent might have been
available as the estate of the deceased to be succeeded by his legal
representatives. The actual dispute will be only with reference to the pain and
suffering and on the permanent disability and loss of earning claimed in the
petition. With reference to these items, though I have my own doubts, as I have
already stated, I am bound by the decision of the Bench reported in
C.P.Kandaswamy Vs. Mariappa Stores (A.I.R. 1974 Mad.178) and I do not consider
it necessary to refer to a Bench for further consideration. Suffice it to say
that the petitioners should have been brought on record since other claims which
could survive to the petitioners are also made.”
9. The principle laid down in the above said dictum will squarely apply to
the present facts of the case too. Even though the claimants 2 to 5 are not
entitled to any compensation for the pain and sufferings of the deceased, they
are entitled to the compensation for the amount spent by them towards medical
expenses and the damages caused to his cycle in the accident, etc., as the legal
representatives of the deceased who are entitled to succeed to his estate. But,
unfortunately, there is no medical bill or any claim made in the claim petition
to show the quantum of loss of estate to the legal representatives of the
deceased / the first claimant, who are the claimants 2 to 5 in M.C.O.P.No.314 of
1995.
10. Under such circumstances, I am of the view that an opportunity must be
given to the claimants 2 to 5 to let in further evidence by way of producing the
medical bill if any available with them to claim the loss caused to the estate
of the deceased, the first claimant.
11. Hence, I hold on the point that the award of compensation given by the
learned Tribunal in M.C.O.P.No.314 of 1995, dated 30.04.1997, under the head
pain and sufferings, is not sustainable for the reasons stated in the Memorandum
of appeal in C.M.A.No.1218 of 1997. The point is answered accordingly.
12. In the result, the appeal is allowed and the award of compensation
passed in M.C.O.P.No.314 of 1995, dated 30.04.1997, on the file of the Motor
Accidents Claims Tribunal – Sub Court, Thanjavur, is set aside and the matter is
remanded to the learned Tribunal for affording an opportunity to the claimants 2
to 5 to let in further evidence to produce medical bills or any other documents
to show the loss of estate of the deceased. The respondents / the claimants 2
to 5 shall appear before the learned Tribunal on 12.06.2006. Registry is
directed to despatch the records to the lower Court immediately. The learned
Tribunal is directed to dispose of the matter within a month from the date of
receipt of the records or from 12.06.2006. No costs.
rsb
To
The Motor Accidents Claims Tribunal –
Sub Court,
Thanjavur.