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 o