Hon’ble Rajan Roy, J.—By means of this writ petition, a challenge has been made to the order dated 30.8.2007 passed by the Motor Accident Claims Tribunal in M.A.C.P. No. 195 of 2005, Radhey Shyam Sharma v. Mohd. Kasim and others, whereby the application for substitution filed by the petitioner herein alongwith the application for condonation of delay have been rejected on the ground that the claim petition having been filed by the claimant on the basis of a personal injury, the same stood abated on his death and the right to sue did not survive in favour of legal heirs/representatives.

2. The facts of the case in brief are as under:

On 9.2.2005, an accident took place in which late Radhey Shyam Sharma sustained injuries. Based on these injuries, Sri Sharma filed the above mentioned claim petition seeking compensation to the tune of Rs.16,50,000/- under various heads plus 18% interest per annum thereon. Sri Sharma subsequently met with another accident and consequent thereto died on 9.6.2005. It is not in dispute that the death of Sri Sharma was not on account of the injuries sustained by him in the first accident, which took place on 9.2.2005. In the above mentioned claim petition, a written statement was filed by the Insurance Company on 24.11.2005, inter allia, stating that the claimant had already died and the petition had abated. Subsequently on 12.1.2006, an application for substitution was filed by the petitioners as the legal heirs of Sri Sharma alongwith an application for condonation of delay in filing the same. Objections to the aforesaid application were filed on 28.8.2006, inter allia, stating that the claim had abated and the right to sue did not survive.

3. On 30.8.2007, the aforesaid applications were rejected by the learned Tribunal on two grounds, firstly, the claim had abated after the death of the claimant in view of Full Bench decision of the Karnatka High Court in the case of Uttam Kumar v. Madhav and others, 2006 (1) ACC 378 Karnatka and other judgments viz. Virendra Singh v. Ashok Kumar and others, 2006 (3) ACC 462 and the decision of the Supreme Court allegedly in the case of M.S. Ajuta Hasan v. T.G. Nayyar, 1996 ACJ 440. Secondly, the application for substitution had been filed with a delay of 118 days and the cause shown in the application for condonation of delay was not sufficient nor satisfactory.

4. Heard learned counsel for the petitioner and perused the records.

5. Notices were issued to the respondent No. 3 but nobody has put in appearance on his behalf. The counsel for the respondent No. 2 also did not appear.

6. The learned counsel for the petitioner contends that the petitioner being legal heir/wife of late Radhey Shyam Sharma and the claim petition having been filed by Sri Sharma during his lifetime, she was entitled to be substituted at his place as the right to sue survived in her favour. The learned Tribunal erred on facts and in law in rejecting the application for substitution as having been abated and also as being barred by limitation.

7. A perusal of the impugned order reveals that the learned Tribunal has rejected the applications as abated mainly relying upon the judgments referred to above. So far as the legal position that in cases of personal injury, the claim dies with the claimant and the right to sue does not survive is concerned, there cannot be much doubt and the decisions referred in the impugned order on this issue to the aforesaid extent cannot be disputed.

8. However having said so, this Court would like to refer to another full bench decision of the Madhya Pradesh High Court in the case of Smt. Bhagwati Bai v. Bablu and others, AIR 2007 MP 38, wherein after considering the provisions of Section 306 of the Indian Succession Act and the provisions of the Legal Representatives Suits Act, 1855, it is held that though the claim based on personal injury would abate on the death of the claimant but the right to sue will survive so far as the loss to the estate of the