A claim for damages on account of loss to the estate of the injured would not abate on his death.

S.P.GOYAL, J.

1. On Jan. 10,1976 at about 6.30 A.M. Kaviraj Ram Singh while he was going on a bicycle from his clinic to the Yoga Centre in Yamuna Nagar, was knocked down near the Railway Station by truck No. HRA 5129 driven by Gurvender Singh, respondent No. 2, and thereby received serious bodily injuries. He filed a claim on July 16, 1976 for Rs. 50,000.00 on various counts detailed below :-

1. Rs. 1,000/- on account of medical bills;

2. Rs. 2,000/- incurred on special diet during illness.

3. Rs. 3,000/- on account of the additional expenditure

likely to be incurred to regain health.

4. Rs. 12,000/- on account of loss of earnings.

5. Rs. 3,000/- on account of loss to his sons and daughters

because of their dependance upon him.

6. Rs. 29,000/- for pain and sufferings.

2 Unfortunately during the trial, he died on Sept. 10, 1978 and his three sons and two daughters applied on Nov. 15, 1978 for being impleaded as claimants. This application was opposed and it was averred that the cause of action being personal to the deceased did not survive after his death. This plea was upheld by the Tribunal relying on a Single Bench decision of this Court in Calcutta Insurance Ltd. V/s. Bhupinder Singh, 1970 Acc C J 344 and the claim petition dismissed vide order dated June 11, 1979.

3. Mr. Ashok Aggarwal, learned counsel for the appellants did not seriously dispute that so far as the claim for pains and sufferings was concerned it would abate on the death of the injured. But respecting the claim under other heads, he contended that as the same related to the loss of property, the right to sue would not abate on the death of the injured and would survive to his legal representatives. Though the decision referred to above was distinguishable on facts yet keeping in view the importance of the question I referred the same for authoritative decision by a Larger Bench and this is how this reference has come before us.

4. At the outset we may observe that Mr. V. P. Gandhi, learned counsel appearing for the respondents very fairly and frankly conceded that if any part of the claim relates to the loss which affects the estate of the deceased the cause of action would survive and the heirs of the deceased be entitled to be impleaded as legal representatives and proceed with the petition. All the same we should like to record our reasons and distinguish the cases which were either relied upon by the learned counsel for the respondent or the Tribunal to hold that the right to sue in the present case did not survive after the death of the deceased.

5. In Calcutta Insurance Ltd. s case (1970 Acc C J 344) (Punj. and Har.) (supra) the deceased had claimed the amount of Rs. 20,000.00 on account of physical and mental pain suffered by him as a result of the injuries which he sustained in the accident. A. D. Koshal, J. (as he then was) relying on Sec.306, Succession Act, held that the right to sue did not survive to the legal heirs, the claim being personal to the deceased.

The said Sec.306 reads as under:-

"All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; 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; and except also cases where after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory."

A bare perusal of the section would reveal that action for personal injuries, short of causing death, abates with the death of the deceased or the injured and does not survive to the legal heirs. As the question before the learned Judge as to whether the claim for physical and mental pain would survive on the death of the injured was directly covered by the provisions of the said section, it was rightly held that the same did not survive to the legal h