Rumi Kumari Phukan, J.

This appeal is preferred against the judgment and order dated 16.09.2009 passed by the learned Motor Accident Claims Tribunal, Kamrup at Guwahati in MAC Case No. 1089/2004 awarding compensation in favour of the claimant. After her death, her legal heir is substituted as appellant.

2. The question which has arisen in the appeal is, as to whether the legal heirs of the deceased claimant who sustained injury on the vehicular accident and died a subsequently unconnected with the injury, sustained in the road accident, are entitled to continue the claim for compensation?

3. One deceased Sthiti Sutradhar (hereinafter referred as original claimant), on 02-02- 2004 was travelling from Guwahati to Silchar by bus bearing registration No. AS 01-P-0170. At about 2-30 PM while the bus reached at Akhiah village, on NH 44 the bus over turned due to rash and negligent driving of the driver and as a result of the accident she sustained injuries all over the body including comminuted fracture of upper end of humerrus of right shoulder, dislocation of the right shoulder joint also. She preferred the claim petition praying for compensation of Rs. 9,00,000/- on account of the injury sustained by her in the accident. It is stated that she is a businessman having income of Rs. 5,000/- per month and due to the accident she has lost her memory and 50% of her head remains senseless and she is unable to move her right hand. The claim petition was registered as MAC Case No. 1089/2004 u/s 166 MV Act.

4. Only the Respondent/opposite party No. 3 the New India Assurance Co. Ltd. contested the case by filing written statement and others i.e. owner and driver did not contest the case.

5. The opposite party No. 3 who is the insurer of the vehicle No. AS 01-P-0170 in its written statement denied all the allegations and pleaded inter-alia that the claim is excessive and they are not liable to pay any compensation if there any breach of policy condition specified in the policy.

6. On the pleadings and evidence on record learned Tribunal awarded an amount of Rs. 69,000/- towards medical expenses and Rs. 30,000/- for pain and suffering. Being aggrieved and dissatisfied with the aforesaid award, the claimant preferred the appeal but the appellant/claimant died during the pendency of the appeal and on the prayer so made, the legal heirs were substituted in the place of appellant. It is also not the case of the substituted appellant that the claimant/appellant died due to the injury sustained in the accident.

7. Mr. B.K. Jain, learned counsel for the Learned counsel for the appellant has contended that when the injured dies, the question of grant of general damages does not arise .But the legal representative is entitled to special damages such as medical expenses, actual loss of income, miscellaneous expenses etc. Further submitted that though the claim regarding the pain and suffering, mental agony not survived on the death of injured but the loss to the property is survived.

8. In support of his contention Mr. Jain has referred the citation Naseeban & Another vs. Surendra Paul & Others, (1996) AIR Raj. 91, Jenabai Widow of Abdul Karim Musa & Others vs. Gujrat State Road Transport Corporation, (1991) 1 GLH 404. Surpal Singh Ladhubha Gohil vs. Raliyarbahen Mohanbhai Savila & Ors, (2009) 2 GLH 217.

9. Mr. Batra learned counsel for the Respondent No. 3 the New India Assurance Co. Ltd has submitted that in the present appeal the injured/appellant has already expired. So in view of the provision of section 306 of the Indian Succession Act,1925, the legal representative of the deceased ,who suffers personal injuries in a motor vehicle accident and who dies subsequently for some other reasons, cannot prosecute or continue to prosecute an application for compensation under Sub-Section (1) of Section 166 of the MV Act, 1988, as the claim for person