Point of Law: If any party dies during claim proceedings, claim proceedings may get abated so far as death of party is concerned, but right to sue survives for other claimant.

JUDGMENT :

HANCHATE SANJEEVKUMAR, J.

1. This appeal is filed under Section 173(1) of the Motor Vehicles Act 1988 (hereinafter referred to as ‘MV Act’ for brevity) by the appellants-claimants, calling in question the judgment and award dated 19.03.2015, in M.V.C. No. 884/2009, on the file of the Principal District Judge and Motor Accident Claims Tribunal, Dakshina Kannada, Mangaluru (hereinafter referred to as ‘the Tribunal’ for brevity) passed on the application filed under Section 152 of CPC on the context of amendment of the judgment.

Brief facts:

2. On 26.05.2009 at about 6.00 p.m. the deceased Vishal Babu was proceeding with one Mr. Jagadhish i.e. respondent No. 3 as a pillion rider in Motor cycle bearing registration No. KA-19-W-5474 from K.P.T. side towards Panamboor side. When they reached K.I.O.C.L. (Kudremukh) Junction, on Udupi-Mangaluru road, a bus bearing registration No. KA-20-B-1978, driven by respondent No. 1 with high speed and in rash and negligent manner, took sudden diversion to Mangaluru-Udupi one way road, in violation of traffic rules and regulation and hit the motorcycle in which the deceased was travelling. As a result of the accident, the deceased who was riding as a Pillion rider fell on the road and sustained grievous injuries all over the body and thereafter succumbed to the injuries.

3. Hence, a claim petition was filed under Section 166 of the M.V. Act, by the legal heirs i.e. the mother and the elder brother of the deceased, claiming compensation for the deceased. The Tribunal on appreciating the materials on record, allowed the claim petition in part, and awarded a compensation of Rs. 9,34,000/- along with interest at 6% per annum from the date of petition till the date of realisation. The Tribunal held respondent No. 2 therein, liable to pay the compensation.

4. Heard arguments of the learned counsel for the appellants-claimants and the learned counsel for respondent and perused the materials on record.

5. The compensation awarded by the Tribunal is as follows:

6. The claimant No. 1 i.e. the mother of the deceased died on 17.03.2013, during the pendency of the claim proceedings. It is submitted that on 12.09.2014, the death of the mother who is claimant No. 1 was reported to the Tribunal and also an application came to be filed, under Order-VI, Rule-17 of C.P.C. for amendment of the cause-title of the petition, but subsequently the said application was withdrawn by the claimant’s advocate and it was dismissed as not pressed. Therefore, the name of claimant No. 1-Jalaja continued to appear in the causetitle of the petition.

7. It was observed by the Tribunal that even though there was no impediment, after pronouncing the judgment, the Advocate representing the claimants in the cases are permitted to carry out the required amendment in the cause-title to the petition. Further, it was observed that even though claimant No. 1-Jalaja died, but the right to sue survives on claimant no. 2 who is the brother of the deceased, who is also a legal representative of the deceased.

8. The Tribunal has also observed that since claimant no. 1-Jalaja passed away during the pendency of the claim petition, hence, the claim petition so far as it relates to claimant No. 1-Jalaja stands abated. Therefore, the Tribunal has come to an opinion that since the claimant No. 1-Jalaja died and therefore the compensation determined in favour of claimant No. 1-Jalaja of Rs. 9,14,000/- is set-aside and only awarded a compensation of Rs. 20,000/- to claimant No. 2 who is the elder brother of the deceased. Therefore, the Tribunal by an order dated 28.03.2015 has modified the award. Be