1. The application of maxim actio personalis moritur cum persona and the maintainability of an appeal when permission under Section 170 of the Motor Vehicles Act, 1988 (the Act, for short) is not obtained before the trial court are the questions that arise for consideration in this appeal.

2. The 2nd respondent in M.V.O.P.No.42 of 2008 on the file of the Judge, Family Court, Secunderabad, preferred this appeal against the petitioners arraying them as respondents 1 to 3 in the appeal and against the 1st respondent arraying him as respondent No.4 in the appeal. For convenience, the parties are referred to as they are arrayed before the trial court.

3. The 1st petitioner is the injured in this case.

On 22-5-2007, he was travelling along with other passengers in an auto bearing registration No.AP 36W 1025 from Baswapur Village towards Koheda Village.

By the time the auto reached the outskirts of Venkateshwarlupalli Village, the driver of the auto drove the auto in a rash and negligent manner. The driver of the auto lost control of the auto resulting in the auto turning turtle. The 1st petitioner sustained injuries in the said accident. He was immediately shifted to the local Government Hospital. He was later shifted to Vijaya Laxmi Nursing Home, Malkajgiri, Hyderabad. A case was registered against the driver of the auto under Section 337 IPC. Respondent No.1 is the owner of the vehicle. The 2nd respondent is the insurer of the vehicle. Claiming that the respondents are jointly and severally liable to satisfy the claim of the 1st petitioner, the present petition was laid under Section 166 of the Act seeking compensation at Rs.2,00,000/- for the injuries sustained by the 1st petitioner. However, while the proceedings were pending, the 1st petitioner breathed his last.

The petitioners 2 and 3, who are the wife and son of the deceased 1st petitioner, were brought on record as legal representatives of the 1st petitioner and were arrayed as petitioners 2 and 3.

4. The 1st respondent remained ex parte.

The 2nd respondent-insurer resisted the claim.

After recording the evidence of P.Ws.1 to 4 and after the exhibition of Exs.A-1 to A-12, the trial court concluded that the petitioners 2 and 3 were entitled to compensation at Rs.84,000/-. Accordingly, compensation at Rs.84,000/-together with interest at 7.5% per annum was awarded from the date of the petition till deposit. Assailing the same, the present appeal is laid.

5. Sri A.Ramakrishna Reddy, learned Standing Counsel for the insurer, primarily made two contentions, viz., that the petition is hit by the maxim actio personalis moritur cum persona and that the appeal is maintainable albeit the insurer did not obtain permission of the trial court under Section 170 of the Act.

6. Actio personalis moritur cum persona is a common law maxim. It envisages that a personal right of action dies with the person. The common law principle is that where an injury had been caused to any person or damage was caused to his property, for which recovery of damages would have been the remedy, the action extinguishes with the death of the person wronged or that of the wrongdoer, except as regards the pecuniary loss to the estate of the injured vide Bhagwati Bai v. Bablu (2007 ACJ 682). However, the Supreme Court observed in Official Liquidator of Supreme Bank Limited v. P.A.Tendolkar (1973) 1 SCC 602) that the maxim had no application to actions based on contracts or where the estate of the tort feaser had benefited from a wrongdoer.

7. The Fatal Accidents Act, 1976 brought a change in the United Kingdom with reference to the maxim. The principles of award of damages under the Fatal Accidents Act, 1976 are:

(i) In case of death of a person after 1987, the spouse or the parents of the deceased, if the deceased was bachelor minor, can claim a fixed amount of $ 3,500.

(ii) The dependents of the deceased are entitled to damages proportionate to the loss of dependency to them because of death