Back
2017 Supreme(Kar) 539
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
Sreenivas Harish Kumar, J.
Hussain (Since Deceased) By His L.R. - Appellant
Versus
Imtiyankhan and another - Respondents
Miscellaneous First Appeal No. 20130 of 2009 (MV)
Decided on : 10-02-2017
Advocate Appeared:
For the Appellant :Sri N.P. Vivekmehta, Advocate
For the Respondent:Sri. Ravi G. Sabhahit, Advocate
Headnote:MOTOR VEHICLES ACT, 1988 – Sections 173 & 168 – Personal injuries – Appeal against award – Death of injured/claimant – Right of wife to continue proceedings in appeal – Held, Just because wife was permitted to come on record, it cannot be said that she has a right to prosecute the appeal. The cause of action does not survive in her favour because composition was awarded by the Tribunal for the injuries sustained by her husband. If he had not died, he could have prosecuted the appeal seeking enhancement of compensation. The moment he died, his wife is only entitled to recover the compensation granted by the Tribunal. Right to prosecute an appeal being a legal representative is not heritable. If it is possible to make out the cause of death as due to personal injuries owing to accident, the wife gets a right to further prosecute the appeal. The circumstances narrated above clearly fall within the scope of Section 306 of the Indian Succession Act. The wife of claimant/deceased, who has come on record, does not inherit the right to prosecute the appeal after death of her husband. Although composition is payable in accordance with Section 168 of the Motor Vehicles Act, but the award thus made is for the personal injuries sustained by an injured in an accident. Therefore, an application under Order 22, Rule 3 CPC cannot be made at all and even if it is allowed inadvertently, yet the legal representative has no right to prosecute the appeal further. This principle is applicable even if an injured dies during the pendency of the claim petition before Tribunal.
CODE OF CIVIL PROCEDURE, 1908 – Order 22, Rule 3 – Impleading application – Appeal against award under Motor Vehicles Act – Death of injured/claimant – Award made is for personal injuries sustained by an injured in an accident – Wife of deceased does not inherit right to prosecute appeal -Application under Rule 3 cannot be made at all – Even if it is allowed inadvertently, legal representative has no right to prosecute appeal further.
INDIAN SUCCESSION ACT, 1925 – Section 306 – Right to appeal – Appeal against award under Motor Vehicles Act – Death of injured – Wife entitled only to recover compensation granted by Tribunal – Right to prosecute appeal not heritable.
Sreenivas Harish Kumar, J.
1. Is the legal representative of the injured claimant Hussain Sab entitled to prosecute the appeal after his death during pendency of this appeal? - is the question that needs to be answered. Briefly mentioned, the facts that gave raise to claim petition being lodged and subsequently this appeal are that on 3-8-2008 at about 4.30 p.m. Hussain Sab, a lorry driver was sitting in the cabin of a Truck bearing No. KA-25/7476 while it was being driven by additional driver. As he was rash, negligent and reckless in driving, he lost control over the truck which turned turtle. As a result, Hussain Sab sustained fracture to pubic region, both the hips and interior pubic rams. In connection with this accident, he claimed compensation, and the Motor Accident Claims Tribunal, Sirsi, in MVC No. 92 of 2005 passed an award on 23-9-2008 granting compensation of Rs. 91,000/- with interest 6% per annum from the date of petition.
2. Dissatisfied with this award, Hussain Sab preferred this appeal before this Court on 12-1-2009 seeking enhancement of compensation, and then died on 18-11-2009. His wife, Smt Modin Bee, was permitted to come on record as his legal representative.
3. The learned Counsel for the appellant has argued that the cause of action has survived in favour of the wife to prosecute the appeal. The Tribunal has already determined a certain sum of money to be paid as just compensation, that means the amount has been crystallised. The compensation payable to an injured is a statutory liability. It is not tortuous liability. Therefore, the principle "Actio personalis moritur cum persona" is not applicable. He raises a question, when Insurance Company files an appeal challenging the award of the Tribunal, if a legal representative of the injured can be permitted to come on record on the death of injured during the pendency of the appeal, why not the same is permitted when the injured files an appeal and dies subsequently? In this regard, he has further argued that necessity to file an appeal arises when the Tribunal fails to award just compensation. If just compensation is awarded by the Tribunal, the legal representatives will be entitled to execute the award if the claimant dies after passing of the award. So this being the position, the appeal survives in favour of the legal representative.
4. He has further argued that the Tribunal has failed to award just compensation. The amounts awarded towards pain and suffering, loss of amenities and other heads are very meager and therefore this Court has to enhance compensation under various heads.
5. On the other hand, the leaned Counsel for the respondent-Insurance Company has argued that the legal representative of the deceased injured claimant is not entitled to prosecute the appeal. This is founded on the principle, "actio personalis moritur cum persona". He has argued that the compensation awarded to Hussain Sab was for the injuries sustained by him. So, the remedy available to an injured under the provisions of Motor Vehicles Act, 1988 is personal in nature unlike in case of death. If the injured dies during the pendency of the proceeding before the Tribunal, the legal representatives of the injured cannot claim that cause of action survives in their favour to further prosecute the claim petition. Now in this case the injured died during the pendency of the appeal and therefore, the legal representative is only entitled to the amount awarded by the Tribunal; she cannot prosecute the appeal filed seeking enhancement of the compensation. He has placed reliance on the judgment of the Full Bench of this Court in the case of Kannamrna v. Deputy General Manager, K.S.R.T.C.ILR 1990 Kar. 4300 (FB) and the judgment of the High Court of Madhya Pradesh in the case of Shantabai Dube and Another v. Kanhaiyalal 1995 ACJ 706 (M.P.) Therefore, it is his argument that this appeal deserves dismissal.
6. The learned Counsel for the appellant has replied that the ratio lai
