Honble KEJRIWAL, J. — This miscellaneous appeal has been directed against the order dated 13.10.1993, passed by M.A.C.T. Kota, holding that after the death of claimant, his legal representatives cannot be brought on record as the claim does not survive.

(2). Brief relevant facts of the case are that in a motor accident which took place on 15.7.1989, the claimant Hafiz Abdul received injuries. He filed an application for Award of Compensation under Section 166 of the Motor Vehicles Act, 1988 , (for short the Act), claiming following compensation : —

1. Damage on account of pain and suffering and mental agony Rs. 25,000.00

2. Medicine and treatment expenses Rs. 5,000.00

3. Loss of earning in present & future loss in business as well Rs. 1,00,000.00

Total Rs. 1,25,000.00

(3). During the pendency of the claim petition, the claimant Hafiz Abdul died. His legal heirs i.e. the appellants filed an application for substitution. That application was rejected by the Accident Claims Tribunal by its impugned order on the sole ground that after the death of claimant Hafiz Abdul Mazid the claim does not survive and as such the legal heirs cannot be substituted. This order has been challenged in this appeal.

(4). Counsel for the appellant submits that the order passed by the Claims Tribunal is perverse. The rulings on which the judgment is based are not relevant for the decision of the present case. The maxim Actio Personalis Mortiur Cum Persona relates only to the personal or bodily injuries and not to the loss caused to the estate of the deceased by the tort-feasor. In support of his arguments; he placed reliance on judgments of this Court passed in Sampati Lal vs. Han Singh (1) and L.Rs. of Om Prakash : Smt. Maya and Others vs. Mahendra Pal and Others (2).

(5). On the other hand, counsel for the respondents submits that the whole claim dies with the death of the claimant. In support of his arguments, he placed reliance on the judgments passed in Calcutta Insurance Ltd. vs. Bhupinder Singh and Others (3), Melepurath Sankunni Ezhuthassan vs. Thekittil Geopalankutty Nair (4) and Om Sharan vs. Bansidhar and Others (5).

(6). I have heard counsel for the parties and gone through the judgments cited by them.

(7). Section 306 of the Indian Succession Act provides that the demands and rights of action of deceased shall survive to his executor/administrator, except causes of action for defamation, assault as defined in the Indian Penal Code or other personal injuries not causing the death of the party. According to this Section, only the claims to the personal or bodily injuries will die with the death of the claimant and not the claim regarding the loss caused to the estate of the deceased.

(8). In Sampati Lals case (supra), this Court held that the maxim Actio Personalis Mortiur Cum Persona relates only to the personal or bodily injuries and not to the loss caused to the estate of the deceased by the tort-feasor. The same view was taken by this Court in L.Rs. of Om Prakash : Smt. Mayas case (supra).

(9). The judgments passed in Calcutta Insurance Ltd. (supra) and Om Sharans case (supra) are not on the point that the loss caused to the estate will also die with the deceased. The judgment of Hon. Supreme Court passed in Melepurath Sankunnis case (supra) also supports the view taken in Sampati Lals case supra. In that case the claim of the claimant was decreed. During the pendency of the appeal the claimant died. The Apex Court held that decretal debt forms part of the estate of the deceased and the appeal from a decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff-respondent which his legal representative is entitled to uphold and defend and is, therefore, entitled to be substituted in place of deceased respondent-plaintiff. Under these circumstances, in my opinion the claim regarding damages on account of pains, suffering and mental agony to the deceased will not survive but the claim regarding loss to the propert

Click Here to Read the rest of this document