The joint and several liability of the owner and driver, the entitlement of legal representatives to claim compensation for pain and suffering, and the non-binding nature of concessions by advocates on questions of law were key legal principles established in the judgment.

P. Krishnamoorthy, J.

Appellants are the wife and children of one Sundharan Varma who died during the pendency of the proceedings before the Motor Accidents Claims Tribunal. Deceased Santharam Varma,, while he was travelling from Palghat to Kollengode in his motorcycle, was hit by a jeep coming from the opposite side having registration No. KRT.9695, belonging to the Sales Tax Department of the Kerala Government, at 7 p.m. on 28-3-1979. The accident occurred at a place called Kozhikode. He sustained injuries and it was due to the rash and negligent driving by the driver of the jeep. Immediately after the accident he fell down and became unconscious. He was taken to the hospital where he was under treatment for nearly a month. It is alleged that even thereafter he had to continue his treatment for another three months, though actually he was not an inpatient in the hospital. Accordingly he claimed a total compensation of Rs. 1,40,000/- from the Slate, made up of Rs. 1,00,000/- towards loss of earnings, Rs. 10,000/- for medical expenses for treatment, Rs. 25,000/- for pain and suffering and Rs. 5,000/- towards damages to the motorcycle.

2. The respondent-State filed an objection contending that there was no negligence on the part of the driver of the jeep and as such they are not liable. It was also contended that the claimant having compounded the offence with the driver of the jeep before the criminal court is not entitled to any compensation. It was further contended that the non-impleadment of the driver is fatal to the maintainability of the petition.

3. During the pendency of the proceedings the original claimant died in 1983 and the appellants who are the wife and children were impleaded as the legal representatives.

4. On the basis of the evidence adduced in the case the Tribunal came to the conclusion that the accident occurred due to the negligent driving the jeep by its driver. It was also found that it is not necessary to implead the driver in the petition as the liability of the owner and the driver is joint and several and any claimant is entitled to sue any one of them for the relief. Ultimately the Tribunal granted a compensation of Rs. 13,000/- made up for Rs. 9,600/- for loss of earnings, Rs. 2,000/- for medical expenses and Rs. 1,400/- towards damages to the motorcycle. As stated earlier, the original claimant died during the pendency of the proceedings before the Motor Accidents Claims Tribunal and on a concession made by counsel it was held by the Tribunal that no compensation is payable under the head 'pain and suffering' as the cause of action will not survive. Dissatisfied with the amount awarded by the Tribunal the claimants have filed this appeal.

5. It was contended by counsel for the appellants that the concession made by counsel before the lower court regarding the claim towards pain and suffering is not binding on the appellants. It was contended by him that by virtue of Ss.2 and 9 of the Kerala Torts (Miscellaneous Provisions) Act, 1977 even such causes of action will survive especially when S.306 of the Indian Succession Act is repealed so far as the Kerala State is concerned. He also contended that the amounts awarded under the other heads are also low. On the other hand, learned Government Pleader contended that the application itself is not maintainable for non-impleadment of the driver and that there is no evidence to show that there was any negligence on the part of the driver.

6. On the plea taken by the learned Government Pleader that there was no negligence on the part of the driver, we are afraid that the State is not entitled to raise that contention without filing a separate appeal against the award already passed by the M.A.C.T. It was found by the Tribunal that the driver of the vehicle was negligent and accordingly an award was also passed. Without challenging that award by a separate appeal it is not permissible for the State to now contend that there was no negligence on the