JUDGMENT
M.F. Saldanha, J.
1. We have heard the respondent’s learned Counsel. Appellants’ learned Counsel is not present but this has not made any difference because with the assistance of respondent’s learned Counsel we have ourselves done a thorough review of the record and we have examined the grounds made out in the present appeal for enhancement.
2. One of the factors that we need to take into account is that during the pendency of the present appeal the appellant died. An application was filed for the legal heirs to be brought on record and this Court has passed a speaking order dated 9.7.2001 allowing the LRs to be brought on record. Seven of the family members have been brought on record starting with the mother, wife and the 5 children. The point that has arisen for our consideration is as to whether this appeal can be said to have abated or whether it can be treated as subsisting. Undoubtedly, under Order 22, Rule 3, Civil Procedure Code, it is open to the LRs of a deceased litigant to apply to the court for permission to step into the shoes of the deceased and to prosecute the litigation. These are almost routine applications which are invariably allowed. We need to, however, take into account the fact that in the Division Bench judgment reported in New India Assurance Co. Ltd. v. H. Sid-dalinga Naika, 1985 ACJ 89 (Karnataka), where the appellant had died, the Division Bench has made an observation to the effect that the appeal abates and has accordingly dismissed the same. Respondent’s learned Counsel submitted that in a case relating to injury it is the personal right of the aggrieved party that is being agitated and that this aspect of the law would survive only as long as the aggrieved party is alive and that if the aggrieved party were to die, as has happened in the present case for reasons that are not attributable to the motor accident, that it would not be permissible for the LRs to continue with the appeal wherein the solitary prayer is one of enhancement. In support of his submission, what respondent’s learned Counsel pointed out to us was that the entire plea for enhancement proceeds on the footing that the compensation that has been awarded to the injured party is inadequate because of the consequences of the accident or in other words because the party is handicapped or disabled or because the potential earnings stand reduced and the like and that none of these factors hold good if a death takes place because then, the depletion aspect comes to an end. The second submission is that even as far as the other heads are concerned, that once they have been assessed by the Claims Tribunal such as the pain and suffering, loss of amenities and the like that it is not open to the appeal court to revise these if the party has died and consequently, it is his submission that on this ground alone the appeal is liable to be dismissed.
3. We have very carefully considered the submissions and we need to also take into account what could have been and would have been urged on behalf of the appellant. Undoubtedly, the contention that would have been raised is that the compensation amount constitutes the estate of the deceased and that if by operation of law that amount could be enhanced for valid reasons in the appeal insofar as if the quantum awarded by the Tribunal legally and justifiably requires upward revision, that it would have the result of enhancing the quantum of the estate, and the LRs being the beneficiaries of the estate they would have every right to agitate these issues. The second obvious aspect that would have been argued on behalf of the appellant is that if the Tribunal has for any reason committed an error or if the quantification has not been fair to the claimant, that is not only the function but the duty of the appeal court to make an upward revision and that while exercising this power, the fact that appellant is no longer alive would become irrelevant.
4. We have very carefully applied our mind to the legal position and what we find is that barring very few situations, viz., those in which a highly specialised or a highly personal aspect of the law or fact is involved, that the normal principle would still hold good insofar as the LRs would be eligible to continue with the prosecution of the appeal. We need to illustrate here that the respondent’s learned Counsel is justified in his alternate submission that there are heads which the appeal court would not touch if death has taken place. One of these, for instance would be a situation in which if the argument is that the injury was of such a nature that the injured person would have to undergo periodic medical treatment and expenses in the times to come and if the person does not survive that period then there can be no question of notionally enhancing this figure as the same would not hold good. The same would apply as far as the loss of future earnings are concerned. In the present instance respondent’s learned Counsel has rightly pointed out to us that the Tribunal has quantified a substantial amount under the head loss of future earnings principally because the appellant was a truck driver, his leg has been shortened by 2″. It has come on record that he would not be able to drive a truck any longer and under these circumstances, the court has estimated the potential loss of earnings and awarded the same. The appellants contend that this head requires enhancement but it is quite obvious that if the appellant has died then there can be no question of touching this head. The only conclusion therefore would be that even though the appellant survives the reliefs that could be granted in the appeal would necessarily have to be confined only to some heads and not to others. It would depend on the facts and circumstances of each case.
5. Coming to the facts of the present case, we find that the Tribunal has passed a detailed speaking order. The Tribunal has taken into account all the material placed before it and the quantum is by and large on the fair and reasonable side. There is only a very marginal enhancement that we propose to allow, which is under head No. 2 where the Claims Tribunal has confined the amount awarded to Rs. 12,000 under the head of medical and other incidental expenses. This amount is enhanced by Rs. 6,000. Under the head No. 1, having regard to the seriousness of the injury and the length of treatment, we are inclined to marginally enhance the amount awarded by Rs. 5,000. In the aggregate, therefore, the only enhancement would be of the order of Rs. 11,000. We make it clear that in doing this we have virtually reviewed the order and reconsidered the material placed before us and effectively, this Court has done what we would term as ‘corrective action’ as far as these two heads are concerned. As far as the other heads, quite apart from the approval of the quantum even if we do desire, in view of what has been pointed out on behalf of the respondents, principally the fact that the appellant has passed away, there would be a total bar to our exercising any powers as far as enhancement under these heads is concerned.
6. In the result, the appeal partially succeeds. The compensation amount to stand enhanced by Rs. 11,000. We also direct that the rate of interest shall be enhanced from 6 per cent to 8 per cent only on the enhanced amount.
7. We need to clarify here, because we do not desire that this should be treated as a wrong precedent, that since the enhanced amount by us is so very minimal and since there are as many as 7 dependants who have now come on record, that even though the normal principle would be to award the enhanced interest only on the enhanced amount and that too from the date of the appeal until the date of payment, that we are making an exception on humanitarian grounds in this case and directing that the enhanced interest on the enhanced amount would be payable from the date of application upto the date of payment only because it would mean a slightly higher sum of money payable to claimants. The Tribunal to pay over the amount that is deposited in the proportion one half each to the aged mother who is the LR-1 and to the wife who is the LR-2. If for any reason LR-1 is not alive then the amount shall be paid entirely to the wife LR-2.
8. With these directions the appeal which partially succeeds to stand disposed of. Parties to bear their own costs.