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1994 Supreme(Mad) 654
High Court of Judicature at Madras
THE HONOURABLE MR.JUSTICE ARUNACHALAM & THE HONOURABLE MR.JUSTICE T. JAYARAMA CHOUTA
M. Selvarajan & Others
Versus
C. Polycarp Pancharathnam, United India Insurance Co., Ltd., Tricky
C.M.A. Nos. 875 of 1986, 40 & 41 of 1987
Decided On :Decided On : 22-08-1994
For the Appellant:K. Sampath, Advocate. R. Balusubramanian, Advocates.
For the Respondents:K.S. Narasimhan for Mr. R. Vedantham, Advocates.
The right to sue for damages to the estate of a deceased claimant in a motor vehicle accident survives to the legal representatives of the deceased, and they have the right to be brought on record and continue the appeal.
Headnote:
MOTOR VEHICLES ACT, 1988 - SECTION 110-A - ACCIDENT - COMPENSATION - ENHANCEMENT - LEGAL REPRESENTATIVES OF DECEASED CLAIMANT - RIGHT TO SUE - SURVIVAL - DAMAGES TO ESTATE - AWARD.
Fact of the Case:
Three Claim Petitions were filed by individuals injured in a van accident, alleging rash and negligent driving by the lorry driver. The Tribunal awarded compensation to the claimants, but they appealed for enhancement. One of the claimants died during the pendency of the appeal, and his legal representatives sought to be brought on record.
Finding of the Court:
The court allowed the applications of the legal representatives of the deceased claimant, holding that the right to sue for damages to the estate of the deceased survives. The court also enhanced the compensation awarded by the Tribunal, considering factors such as the nature of injuries, disability, loss of earning capacity, and medical expenses.
Issues: 1. Whether the appeal abates after the death of the injured/claimant? 2. Whether the legal representatives of the deceased claimant have the right to be brought on record and continue the appeal? 3. Whether the compensation awarded by the Tribunal is adequate?
Ratio Decidendi: 1. The court held that the appeal does not abate after the death of the injured/claimant, as the cause of action regarding damages to the estate of the deceased survives to the legal representatives. 2. The court relied on the decision in Thailamma v. A.V. Mallayya Pillai (1981 A.C.J. 185) and distinguished it from the decision in C.P. Kandaswamy v. Mariappa Stores (1974 A.C.J. 362), holding that the legal representatives of the deceased claimant have the right to be brought on record and continue the appeal. 3. The court considered factors such as the nature of injuries, disability, loss of earning capacity, and medical expenses in enhancing the compensation awarded by the Tribunal.
Final Decision: The court allowed the appeals in part and enhanced the compensation awarded to the claimants. In C.M.A. No. 875 of 1986, the appellant was awarded Rs. 75,000/- with 12% interest per annum. In C.M.A. No. 40 of 1987, the appellants were awarded a total compensation of Rs. 40,000/- with 12% interest per annum, to be shared equally among them. In C.M.A. No. 41 of 1987, the appellant was awarded Rs. 30,000/- with 12% interest per annum.
T. JAYARAMA CHOUTA, J.
1. These three appeals arise our of three Claim Petitions decided by the Subordinate Judge, Ariyalur in a single accident which have been tried together and passed a common award. Hence, we heard all these appeals together and pass a common judgment.
2. C.M.A. No. 87 of 1986 arises out of M.C.O.P. No. 3 of 1984 whereas C.M.A. No. 40 of 1987 is against M.C.O.P. No. 4 of 1984 and C.M.A. No. 41 of 1987 is challenging the award in M.C.O.P. No.
6 of 1984.
3. The appellant in C.M.A. No. 875 of 1986 filed a claim petition on the averments that he was working as an Assistant No. 3 in the District Court of South Arcot at Cuddalore on a salary of Rs. 900/- per month. On 1.12.1993, the petitioner and his friends including the claimants in the other petitions, was going in a van belonging to the first respondent. When it was nearing Valikandapuram, a lorry belonging to the second respondent came rashly and negligently from the opposite direction and knocked down the van, as a result of which the van was smashed and the petitioner and others sustained various injuries. He claimed a total compensation of Rs. 2 lakhs with interest under different heads. Similarly, the appellant in C.M.A. No. 40 of 1987 claimed a total compensation of Rs. 2,00,000/- on the ground that he is a retired Tahsildar and is working as a Manger in Sudha Enterprises, Pondicherry drawing a monthly salary of Rs. 1,400/-. The appellant in C.M.A. No. 41 of 1987 claimed a total compensation of Rs. 1,00,000/- on the allegations that he is an Advocate practising in criminal side and due to the injuries, he had sustained during the accident he is not in a position to sit, walk or travel continuously and it has affected his profession.
4. In all these Claim Petitions, the third respondent Insurance Company filed its counter statement contending that the driver of the lorry was not rash and negligent and disputing the manner of accident and also the quantum of compensation. The first respondent also disputed the Claim Petitions.
5. The Tribunal took all the Claim Petitions together. On behalf of the claimants, six witnesses were examined including the injured and got marked Exs. A.1 to A.213. No witness was examined on behalf of the respondents. The Tribunal, after conclusion of the inquiry by its order dated 20.9.1985 has proceeded on the basis that the lorry driver was rash and negligent and awarded a total compensation of Rs. 25,000/- in M.C.O.P. No. 3 of 1984, a compensation of Rs. 15,000/- in M.C.O.P. No. 4 of 1984 and a sum of Rs. 15,000/- in M.C.O.P. No. 6 of 1984 with 9% interest per annum in all the cases from the date of petition till the date of deposit.
6. Being not satisfied with the quantum of compensation, the injured have filed the above mentioned appeals for enhancement. Since the respondents have not challenged the finding regarding negligence by filing independent appeals or cross-objections, we need not go into that question as it has become final.
7. In C.M.A. No. 40 of 1986 during the pendency of the appeal, the sole appellant died and his legal representatives have filed three applications viz., C.M.P. Nos. 11121, 11122 and 11123 of 1994 to come on record by condoning the delay in filling the legal representative application and also to set aside the abatement. Learned Advocate for the respondent, Insurance Company-, orally opposed the said applications and contended that the appeal does not survive after the death of the injured/claimant, as the cause of action does not survive to the legal representatives of the claimant as the appeal abated. In this regard, he cited two decisions in C.P. Kandaswamy and others v.
Mariappam Stores and others (1974 A.C.J. 362) and Melapurath Sankunni Ezhuthassan v. Thikittal Geopalakutty Nair (1996 A.C.J. 440). In the earlier case, considering the provision of Section 306 of the Indian Succession Act, the Court has held that the cause of action regarding the disallowed portion of the claim,
