Judgment:
(Prayer: This miscellaneous first appeal is filed under Section 173(1) of the Motor Vehicles Act against the judgment and award dated 12.09.2006 passed in MVC 313/2003 on the file of I Addl. Civil Judge (Sr.Dn) and CJM and Addl. MACT Dharwad, awarding compensation of Rs.1,85,000/- with interest @ 8% p.a. from the date of petition till realisation.)
1. This appeal is by the Insurance Company questioning the correctness and legality of the Judgment and award passed in MVC 313/2003 dated 12.09.2006 by I Addl. Civil Judge (Sr.Dn) and CJM, Dharwad whereunder claim petition has been allowed in part and a compensation of Rs.1,85,000/- with interest @ 8% p.a. is ordered to be paid by the appellant herein.
2. I have heard the arguments of Sri.S.C.Jainar, learned counsel appearing for the appellant and Sri.J.S.Shetty, learned counsel appearing for the respondents/claimants. Perused the judgment and award passed by the Tribunal and also records secured from the Tribunal.
3. It is the contention of Sri.S.C.Jainar that Tribunal erred in awarding compensation for the injuries sustained by Basappa Mallappa Indur though he had expired after five years after the accident and as such the legal heirs namely respondents 1 to 6 herein did not have cause of action to seek for compensation. He would further contend that award passed by the Tribunal is opposed to dicta of the Full Bench in the case of Kannamma Vs Deputy General Manager, KSRTC reported in ILR 1990 Karnataka 4300 and in the case of Babu Rao Sataba Manabutakar Vs Doreswamy and others reported in ILR 2002 Karnataka 660 and as such he seeks for setting aside the Judgment and award passed by the Tribunal.
4. It is the contention of Sri.J.S.Shetty, learned counsel appearing for claimants that when the claim petition is filed by an injured and if he dies during the pendency of claim petition, his legal heirs can seek for compensation and can continue the proceedings and seek payment towards loss of estate and medical expenses incurred. He also contends that in the normal circumstances when the petition is filed seeking for compensation towards injuries sustained there cannot be any dispute with regard to liability of the insurance company and death of a claimant should not act as a premium for insurance company to contend that it should be absolved of its liability.
5. Having heard the learned advocates appearing for the parties I am of the considered view that the following point would arise for my consideration:
"Whether a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for personal injuries sustained as a result of motor vehicle accident would be maintainable on his demise and whether the legal heirs of the deceased can continue the proceedings on the demise of the claimant even though death was not on account of injuries sustained in said accident?"
BRIEF BACKGROUND OF THE CASE:
6. A claim petition was filed by one Sri.Mallappa Basappa Indur under section 166 of the Motor Vehicles Act, 1988 on 21.03.98 in MVC 313/2003 contending interalia that he is entitled for compensation on account of injuries sustained by him in a road traffic accident that occurred on 09.01.98. Said claim petition was resisted by the insurance company by filing a detailed statement of objections denying the averments made in the claim petition. During the pendency of the claim petition, claimant expired on 05.01.2002. An application came to filed by the wife and children of the deceased claimant to come on record as legal heirs and to prosecute the claim petition. Said application came to be allowed on 14.08.2002 and it was observed by Tribunal while allowing the said application to the following effect:
"In the absence of any definite averments that the death has occurred as a result of consequential bodily injuries, on the face of it, the present petition deserves to be dismissed. However, in the interest of justice and to avoid multiplicity of proceedings, I deem it expedient to afford an opportunity to the petitioners to prove the loss to the estate as held in the aforesaid decision".
7. Tribunal also took note of Full Bench Judgment in the case of Kannamma Vs Deputy General Manager, KSRTC reported in ILR 1990 Karnataka 4300 while disposing of the said application.
8. The accident in question occurred on 09.01.1998. Claim petition came to be filed on 21.03.1998. Claimant expired on 05.01.2002. The application filed by the wife and children of the deceased claimant was allowed on 14.08.2002 by the Tribunal with an observation as already noticed hereinabove.
9. The Tribunal on appreciation of evidence available on record allowed the claim petition in part and has awarded a total compensation of Rs.1,85,000/- with interest @ 6% p.a. from date of petition till realisation. The Tribunal has awarded the compensation as under:
| For fracture of right forearm | Rs. 15,000/- |
| For compound fracture of tibia Right leg | Rs. 20,000/- |
| 35% disability | Rs. 40,000/- |
| for pain and agony | Rs. 20,000/- |
| for medical expenses including charges of hotel and attendant and operation | Rs. 90,000/- |
| TOTAL | Rs. 1,85,000/- |
10. In the instant case the claimant sought for compensation for bodily injuries sustained by him in a road traffic accident that occurred on 09.01.1998. During the pendency of the said petition he expired on 05.01.2002. There cannot be any doubt or dispute that claimant did not expire on account of injuries sustained in accident or in other words the cause of death was not on account of bodily injuries sustained by him in the road traffic accident. In order to prove as to what was the injuries sustained, treatment obtained, disability sustained by deceased claimant, Dr.Suryakanth was examined as PW-2 on 07.07.2004 and in the cross examination he has stated to the following effect:
"2. I have examined the petitioner on 16.01.1998 xxx earlier stage. It is true, such injuries do not lead to death. After discharged xxx superior Antibiotic. I voluntary say that infection was under control. I again say infection was under control".
(Emphasis supplied by me)
11. The wife of the claimant who has come on record has tendered evidence as PW-1. Though in examination-in-chief she contended that claimant did not recover from the injuries sustained by him in the accident in question, cross examination dated 04.12.2002 would demolish her plea which reads as under:
"6. It is not true to suggest xxx Hubli. After the treatment at Kshema Hospital, my husband recovered, but he was required to take follow up treatment for removal of the rod. After discharge from the hospital he joined the service and worked for nearly five years thereafter. He was attending his duties regularly, during this period without any leave".
Thus, when evidence of PW-2 and PW-1 as extracted hereinabove is perused it would clearly establish that cause of death of the claimant was not on account of the bodily injuries sustained by him in the road traffic accident that occurred on 09.01.98. It can also be noticed that injuries sustained by the claimant was fracture of right forearm bones, fracture of tibia and fibula of right leg. Even according to PW-2 the doctor who was examined on behalf of the claimant such injuries would not lead to death. Thus, the claimant having been treated for these injuries and he thereafter having resumed his duties and continued to discharge his duties for a period of five years and thereafter having expired it could not be said by any stretch of imagination that cause of his death was on account of bodily injuries sustained by him in the road traffic accident that occurred on 09.01.1998. There is no other evidence available on record to take any different or contrary view or to arrive at the conclusion that cause of death was on account of bodily injuries sustained by him.
12. On the demise of the claimant on 05.01.2002 as already noticed hereinabove his wife and children filed an application to come on record and prosecute the claim petition which came to be allowed on 14.08.2002 with the observation as extracted already hereinabove. It has been clearly observed by the tribunal while allowing the application that "in the absence of any definite averments that death has occurred as a result of consequential bodily injuries on the face of it, the present petition deserves to be dismissed". Admittedly the claim petition is not amended and there is no plea raised in the claim petition that claimant expired on account of bodily injuries sustained by him. As such Tribunal has rightly not framed any issue in this regard for want of pleadings. The question would be, in the absence of such plea and in the absence of the nexus between the cause of death and the bodily injuries sustained by the deceased claimant, whether claim petition could have been continued and prosecuted by his legal heirs.
13. Under similar circumstances, a question arose as to whether the legal heirs can come on record and continue the proceedings and said question was referred to the Full Bench. The question by way of reference which came up before Full Bench in KANNAMMA's case referred to supra reads as under:
"Whether, in a claim petition presented under Section 110-A of the Motor Vehicles Act, 1939, claiming compensation for personal injury resulting from a motor accident as also compensation towards expenses incurred and towards loss of income etc., if the claimant dies during the pendency of the petition, his legal representative can come on record and continue the proceedings?"
14. After analysing various provisions of the statute, namely, Motor Vehicles Act, their Lordships have concluded by answering the reference 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 personalis 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 earning 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), AIR 1969 Calcutta 595, which is referred to while examining Kongara Narayanamma's case (supra), 1975 ACJ 448, 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.
"12. In the result, the Full Bench answers the question referred for its decision by the Division Bench, thus: (i) a claim petition presented under Section 110A of the Motor Vehicles Act, 1939, by the person sustaining bodily injuries in a motor accident, claiming compensation for personal injuries as also for compensation towards expenses, loss of income, etc., (loss to estate) cannot, on such person's death occurring not as a result or consequence of bodily injuries sustained from a motor accident, be prosecuted by his/her legal representatives; but (ii) a claim petition presented under Section 110A of the Motor Vehicles Act, 1939, by the person sustaining bodily injuries in a motor accident, claiming compensation for personal injuries as also for compensation towards expenses, loss of income, etc., (loss to estate) can, on such person's death occurring as a result or consequence of bodily injuries sustained in the motor accident, be prosecuted by his/her legal representatives only in so far as the claim for compensation in that claim petition relates to loss to estate of the deceased person due to bodily injuries sustained in the motor accident.
15. It has been held by the Full Bench that when a claim petition filed under Section 110-A of the Motor Vehicles Act, 1939 by a person who has sustained bodily injuries in a motor accident and claims compensation for personal injuries, compensation for expenses incurred, loss of income etc., on such person's death occurring which was not as a result or consequence of bodily injuries sustained cannot be prosecuted by his/her legal heirs. However, if a claim petition is filed by a person sustaining bodily injury in a motor accident, claims compensation for personal injuries as also towards loss of income etc., on such person's death which "occurred as a result or consequence of bodily injuries sustained in said motor accident" it can be prosecuted by his/her legal heirs only insofar as claim for compensation under the claim petition which relates to the estate of deceased person only.
16. In fact said judgment in KANNAMMA's case again came up for consideration before another Full Bench in the case of UTTAM KUMAR vs MADHAV reported in 2006(1) ACJ 378 and it was held as follows:
"8. In the instant case what is to be seen is whether there is any inconsistency between the provisions of Section 166 of the MV Act and Section 306 of the I.S. Act for the LRs of the deceased who died as a result of the accident to claim compensation or pursue their remedies.
9. A bare reading of the above Section 166 clearly reveals that in case of an accident a person who sustains injury can make application for compensation before the Claims Tribunal and if any death has resulted from the accident, any or all LRs can be brought on record and can pursue under Section 166(l)(c). Hence, in case of death resultant of the accident the LRs of the deceased can file claim petition. So also it is clear from Section 306 of the I.S. Act that cause of action survives to and against the executors or administrators of the deceased whose death is the result of the personal injuries sustained in the accident already stated.
14. On overall consideration and as discussed above, we are in full agreement with the well reasoned order made by the Full Bench since that part will not say anything regarding Section 306 of the I.S. Act and it is not necessary to go into the observation. It is also not necessary to go into the question of fact as alleged by the LRs that the deceased died due to the injuries sustained in the accident and that question can only be considered while considering the compensation. We answer the reference in the affirmative and fully approve the earlier Full Bench decision in Kannamma's case, 1991 ACJ 707 (Karnataka) , as stated. The reference is answered accordingly. Reference is answered."
17. Thus, agreeing with the view expressed in KANNAMMA's case, their Lordships have also held that a claim petition would be maintainable and can be prosecuted by legal representatives of deceased claimant only in the event of claimant's death occurring as a result or consequence of bodily injuries sustained in the road accident and not otherwise.
18. In the background of above case law, it has to be examined as to whether death of the claimant in the instant case was on account of the bodily injuries sustained in the road accident that occurred on 09.01.1998. As already discussed in the aforesaid paragraphs the death of the claimant was not on account of bodily injuries sustained by him.
19. The Full Bench in Kannamma's case at paragraph 12 have in categorical terms held as under:
(i) a claim petition presented under Section 110A of the Motor Vehicles Act, 1939, by the person sustaining bodily injuries in a motor accident, claiming compensation for personal injuries as also for compensation towards expenses, loss of income, etc., (loss to estate) cannot, on such person's death occurring not as a result or consequence of bodily injuries sustained from a motor accident, be prosecuted by his/her legal representatives".
20. Thus, claim petition filed by deceased claimant could not have been prosecuted or continued by his legal heirs since death occurred after five years from the date of accident and it was not on account of bodily injuries sustained by him in the road traffic accident that occurred on 09.01.1998. The legal heirs would have been entitled to continue the proceedings only in the event of such person's death occurring as a result or consequence of bodily injury sustained and could have claimed compensation in that very claim petition for loss of estate and not otherwise. Nowhere in the claim petition it has been contended that deceased claimant expired as a result or consequence of bodily injuries sustained by him in the road traffic accident that occurred on 09.01.1998.
21. Hence, for the reasons aforesaid I am of the considered view that Tribunal could not have awarded compensation to the legal heirs of deceased claimant by permitting them to prosecute the claim petition on his demise which was not on account of the bodily injuries sustained by him in the road traffic accident that occurred on 09.01.1998. In that view of the matter point formulated hereinabove has to be answered in the negative i.e., against the claimants and in favour of appellant.
Hence, following:
ORDER
1. Appeal is hereby allowed.
2. Judgment and award passed in MVC 313/2003 dated 12.09.2006 by I Addl. Civil Judge (Sr.Dn) and CJM, Dharwad is hereby set aside and claim petition is hereby dismissed.
3. Parties to bear their costs.
4. Amount in deposit to be refunded to appellant on identification.