ORDER

Date : 30-01-2020 Heard Mr. B. D. Goswami, learned counsel for the appellant. Also heard Ms.

M. Choudhury, learned counsel for the respondent No. 1 and Mr. S. Dutta, learned Counsel for the respondent No. 2 as well as Mr. P. Dutta, learned counsel for the respondent Nos. 3 & 4.

2. The present application under Section 173 of the Motor Vehicle, Act 1988 is preferred against the order dated 04.10.2012 passed by the learned Member, MACT, Bongaigaon in MAC Case No. 233/2009 whereby the motor accident claim filed by the appellant have been dismissed.

3. The claimant, namely, Karuna Kanta Roy, since deceased, had filed Motor Accident claim Case No. 233/2009 before the learned Member, MACT, Bongaigaon claiming compensation amount of Rs. 18 Lakhs on account of injury sustained by him due to his motor cycle bearing registration No. AS 15-A/2638 colliding with Tata Indica Car bearing registration No. AS-19B-4122 on 12.12.2007, under the jurisdiction of Abhayapuri, District Bongaigaon, Assam. As during the pendency of the above claim petition, the claimant/Karuna Kanta Roy had died, his legal representatives, namely, wife and daughters filed an application under Order 22 Rule-1 of the CPC for substitution of legal heirs. The Substitution application of legal heirs’ was accompanied with a condonation application filed under Section 5 of the Limitation Act.

4. The learned Member, MACT Bongaigaon, Assam by the order dated 04.10.2012 passed in MAC Case No. 233/2009 dismissed the application on the ground that the petitioner itself is barred by limitation and also by relying on a decision reported in 2012 (2) GLT 766 (Sipra Bhowmik & Anr. Vs. S. C. Saha & Ors.) that claim for the personal injury is liable to be abated in the event of death of the person.

5. Assailing the correctness of the impugned order dated 04.10.2012, Mr. Goswami, learned counsel for the appellant submits that ratio laid down in the case of Sipra Bhowmik (Supra) have been wrongly applied by the learned Tribunal, inasmuch as, claim petition would stand abated only if the claimant died a natural death but if the claimant had died due to an injury sustained in the accident for which the claim was filed, the claim would not be abated on account of the death of the claimant.

6. The above submission made by Mr. Goswami, learned counsel for the appellant have not been controverted to by Ms. Choudhury, learned counsel appearing for the respondent No. 1, Mr. S. Dutta, learned counsel for the respondent No. 2, Mr P. Dutta as well as learned counsel for the respondent Nos. 3 & 4.

7. Having heard the learned counsel for the parties as well as on perusal of the impugned order dated 04.10.2012, it is noticed that although the learned Member, MACT have dismissed the claim petition on account of it being barred by limitation as well as the claim petition stood abated on account of death of the injured claimant, the learned Tribunal have not discussed as to which of the petition is barred by limitation.

8. On perusal of the decision rendered by the learned Tribunal, namely, Member, MACT, Bongaigaon, it appears that claim filed by the injured would stand abated only if the injured claimant dies of a natural death and not on account of the injury sustained by the claimant for which the claim petition have been filed.

9. In the instant case, it is noticed that a certificate dated 19.02.2011 issued by the SDM & HO, Bongaigaon Civil Hospital (annexed as Annexure-1 series), by which certificated the injured claimant (since deceased) have been certified to be suffering from quadriplegia, following collapse of C-4 due to road traffic accident on 12.12.2007, which certificate is stated to be also a part of the claim petition as submitted by Mr. Goswami, learned counsel for the appellant/claimant. The medical certificate dated 19.02.2011 is also a part of the claim petition have also not been disputed by the respondents.

10. In view of the above, it appears that the original claimant Karuna Kanta Roy (