IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27.03.2013

CORAM

THE HONOURABLE MR. JUSTICE C.T.SELVAM

C.M.A.No.2419 of 2012

and

M.P.No.1 of 2012

M/s. National Insurance Co. Ltd

Third party Cell

Mount road

Chennai.

...Appellant/2^nd Respondent

1^st Respondent/Petitioner

vs

1. Suseela (deceased)

2.Shanmugam

3.Kumary

4.Babu

5.Vanaja

6.Saradha

7.Mariyammal

8.Parimala

9.Parvathi ..2 to 9^th Respondents/

2 to 9^th Petitioner

10.K.Sathya Kumar

... 10^th Respondents/

1^st Respondent

Civil Miscellaneous Appeal filed under section 173 of Motor

Vehicle Act against the award and decree dated 05.08.2008 made in

M.C.O.P.No.483 of 2000 on the file of Motor Accident Claims Tribunal,

Ponneri at Tiruvallur District.

For Appellant

:

Mr.J. Chandran

For Respondents:

Mr.J. Ramakrishnan R2 to 9

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J U D G M E N T

This Civil Miscellaneous Appeal arises against the award of the

Motor Accident Claims Tribunal, Ponneri at Tiruvallur District passed

in M.C.O.P.No.483 of 2000 on 05.08.2008.

2. At about 07.00 a.m, on 07.01.2000, while the deceased was

standing in front of her house, a lorry bearing registration No. AP-

16-W-548 driven in a rash and negligent manner, dashed against her

owing to which she sustained grievous injuries. Since the first

respondent/claimant died during the pendency of claim petition,

respondents 2 to 9, who are her husband and children were impleaded

as legal heirs. Compensation in a sum of Rs.74,000/-was claimed.

3. Before the Tribunal, on behalf of the claimants, one

witness was examined and seven exhibits were marked. None were

examined on behalf of the appellant insurance company nor were any

exhibits marked.

4. On appreciation of the materials before it, the Tribunal

awarded a sum of Rs.45,000/- under the head Pain and suffering and

mental agony with interest at the rate of 7.5% per annum from the

date of petition till the date of deposit.

5. The sole ground urged by learned counsel for the appellant

is that the injured claimant died pending disposal of the claim

petition and therefore following the maxim 'Actio Personalis moritur

cum persona' the tribunal ought not to have awarded compensation and

directed payment thereof to the legal representatives who were

impleaded pursuant to her death. As the tribunal had awarded the sum

of Rs.45,000/- as compensation payable only towards pain and

suffering suffered by the deceased/claimant, the order of tribunal is

to be set aside.

6. We have heard lengthy submissions of counsel on either

side. Very many decisions have been cited before us. Some of them

inform that compensation towards pain and suffering could not be

afforded subsequent to the death of the injured claimant owing to the

operation of the said maxim, principles whereof are found

incorporated in Section 306 of the Indian Succession Act. Others

inform that the maxim would not be applicable except where

specifically engrafted in a statute. The law appears settled atleast

to this extent viz., compensation payable under the head no fault

liability would survive the death of the claimant and so would the

loss caused to his estate. Though generally compensation payable

towards pain and suffering is not considered to be the loss to the

estate of the deceased, Halsburys' Laws of England, Vol.28,pg.100

informs that damages there towards could be claimed under such head

as loss to the estate. Without dwelling at depth upon the decisions

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cited before us, we would inform that a claim for compensation made

under Section 166 of the Motor Vehicles Act, 1988 would survive after

the death of the claimant even in respect of personal injuries not

causing the death of the party for the following reason. In

M.Veerappa v. Evelyn Sequeira, AIR 1988 SC 506 the Hon'b