JUDGMENT :

Bivas Pattanayak, J.

1. Both the appeals being FMA No. 804 of 2010 filed by the insurance company and another being FMA No. 197 of 2017 preferred by the legal heirs of original claimant-injured is heard analogously and taken up together for consideration.

2. These appeals have been preferred against the judgment and award passed on 13th January, 2010 by learned Additional District Judge-cum-Judge, Motor Accident Claims Tribunal, Fast Track, 3rd Court, Barrackpore, 24 Parganas (North) in Motor Accident Claim Case No. 37 of 2006 granting compensation of Rs.10,00,000/- together with interest in favour of the claimant injured under Section 166 of the Motor Vehicles Act.

3. The brief fact of the case is that on 27th August, 2005 at about 11:30 hours the offending vehicle bearing registration No. WB-25A/8971 (truck) which was proceeding in rash and negligence manner dashed the victim near Halisahar Panchmatha More in front of the Motor Training School, as a result of which the victim sustained serious injuries. Immediately he was removed to the hospital. However, after prolong treatment, the injured could not recover and was permanently disabled due to the injury sustained in the said accident. In relation to the said injuries and the consequential disablement, the claimant-injured filed application for compensation of Rs. 14,90,000/- together with interest under Section 166 of the Motor Vehicles Act.

4. The claimant-injured in order to establish his case examined six witnesses and proved documents which have been marked as Exhibit 1 to 17 respectively.

5. The insurance company (appellant in FMA No. 804 of 2010) adduced evidence of one witness and also proved documents which have been marked as Exhibit A and B respectively.

6. The owner of the offending vehicle did not contest the claim application and the case was dismissed ex parte against the owner of the offending vehicle.

7. Upon considering the materials on record and the evidence adduced on behalf of the respective parties, the learned Tribunal granted compensation of Rs.10,00,000 together with interest in favour of the claimant-injured.

8. Being aggrieved by and dissatisfied with the impugned judgment and award, the insurance company preferred the appeal being FMA No. 804 of 2010.

9. The legal heirs of original claimant-injured filed the appeal being FMA No. 197 of 2017 on the ground that the compensation should be awarded as a death case, since the claimant-injured died on 18.08.2009 due to injury caused in the accident, prior to passing of the award on 13.01.2010.

10. Mr. Parimal Kumar Pahari, learned Advocate appearing on behalf of the insurance company (appellant in FMA No. 804 of 2010), submits that there is categorical finding of the learned Tribunal that there was no loss of income of the claimant injured due to the injuries and disablement caused for the reason of the said accident and, therefore, the claimant is not entitled to receive any compensation towards loss of income. In support of his contention, he relied upon the following decisions of this Court :

i. Mukti Majumdar Versus National Insurance Co. Ltd. and Another reported in 2007 (2) T.A.C. (Cal.).

ii. Atanu Kumar Ghosal Versus National Insurance Co. Ltd. and Others reported in 2007 ACJ 650.

iii. Barun Kumar Das Versus New India Assurance Co. Ltd. and Another reported in 2005 (1) T.A.C. 225 (Cal.).

iv. The New India Assurance Co. Ltd. Versus Amitava Das & Anr. reported in (2007) 2 WBLR (Cal) 354.

He further submitted that after the death of the original claimant-injured the legal heirs are before the Court claiming enhancement of compensation, however, the cause of action being personal to the injured abates on his death, which is not caused due to the accident. The legal heirs are entitled only to such compensation which forms part of the estate of the deceased. Loss of salary, future prospects, pain and s