The exception contained in section 306 of the Indian Succession Act saves the action to the extent of loss to the estate of the deceased, allowing certain claims raised by the legal representatives of the deceased to be tried by the Tribunal.

1. - This appeal is directed against passed by the Motor Accidents Claims the judgment and award dated 10.12.1984 Tribunal, Jodhpur.

2. The brief facts giving rise to this appeal are that an accident took place on 1.3.1982 at 6.15 p.m. with the truck bearing No. RJR 7224 which was driven in a rash and negligent manner and it struck against one Om Prakash. As a result of this accident Om Prakash received the following injuries:

(1) Bruise 1.5 cm. X 1.0 cm. on the rt. upper lid lateral half and adjacent eyebrow.

(2) Lacerated wound 6.2 cm. X 6.2 cm. muscle deep on the lateral aspect of rt. knee joint.

(3) An abrasion 2.0 cm. X 1.0 cm. anterior lateral aspect of rt. leg at its middle. He filed a claim petition before the Tribunal claiming compensation for the aforesaid injuries to the tune of Rs. 75,000/-. While the claim petition was pending. Om Prakash died as a result of heart attack on 19.1.1984. Therefore, an application was made by the legal representatives of deceased Om Prakash before the learned Tribunal that they may be substituted as claimants in the claim petition. That application was rejected by the order of the learned Tribunal dated 10.12.1984 in toto and it was held that since the action was actio personalis moritur cum persona. therefore, the legal representatives of the deceased cannot be substituted as the action for a personal (bodily) injury dies with the death of the person. Aggrieved against this, the present appeal has been filed by the legal representatives of the deceased Om Prakash.

3. Mr. Parihar, learned counsel for the appellants, submitted that it is true that the English doctrine actio personalis moritur cum persona is applicable in the present case by virtue of section 306 of the Indian Succession Act, but the action so far as it relates to the loss caused to the estate of the deceased will survive and that action will not die with the death of the deceased. In support of his aforesaid contention, learned counsel has invited my attention to Sampati Lal v. Hari Singh, 1985 ACJ 539 (Rajasthan). In that connection, it was observed as under:

"The maxim actio personalis moritur cum persona relates only to personal or bodily injuries and not to the loss caused to the estate of the deceased by the tortfeasor. In this way, this maxim stands considerably abrogated or modi lied by the provisions of section 306 of the Indian Succession Act. Section 306 clearly lays down that all demands whatsoever and all rights to prosecute or defend in an action or special proceeding existing in favour of or against a person at the time of his death survive except causes of action for defamation etc., which come to an end with the death of the injured. The loss to the estate is, thus, not covered by the exception contained in section 306 of the Indian Succession Act."

4. Therefore, learned counsel submitted that the claim which was personal to the deceased will not survive but other claims which relate to his estate cannot die with the death of the claimant. In this connection learned counsel submitted that so far as the claim mentioned in the claim petition at item No. (a) for a sum of Rs. 35,000/- for mental agony is concerned that cannot be tried, likewise the claim at item No. (c) claiming a sum of Rs. 20,000/- for disability on account of leg injury also cannot be tried, but rest of the claim, namely, the amount which has been spent on treatment, medicines, nourishment and other appurtenant to such nature can certainly be tried.

5. Mr. Bhansali, learned counsel for the respondents, has opposed the request of Mr. Parihar.

6. I have heard both the learned counsel and have also perused the record. It is true that personal action dies with the person, this principle of actio personalis moritur cum persona has been recognised by the Indian courts also. But the exception is contained in section 306 of the Indian Succession Act which saves the action to the extent of loss to the estate of the deceased. This has been laid