ORDER
J.G. Chitre, J.
1. (On I. A. No. 4763/95) Shri S. Patwa for Appellant. Shri S. V. Dandvate for Respondent No. 4. Other respondents are absent. None present for them.
2. This application has been preferred for bringing the legal representatives of deceased claimant on record. During the course of argument it has been noticed by the learned counsel for the L.Rs. of deceased claimant that there has been delay in making the prayer for bringing the L.Rs. on record. He prays for condoning the said delay in view of recent amendment in provisions of Motor Vehicles Act, 1988 (hereinafter referred to as M. V. Act for convenience). Shri Dandvate, counsel for respondent No. 4 also admitted that there has been recent amendment in the provisions of M.V. Act whereby time limit of six months which was in existence previously has been removed in respect of filing of fresh application for getting the compensation. There cannot be any debate on the point that provisions of M.V. Act are benevolent and specially brought in force for the purpose of avoiding delay in getting the relief from Civil Courts by filing other suitable remedies. Thus, keeping in view the benevolent aspect of the enactment and the recent amendment by which the previously indicated time limit of six months has been removed, I hereby condone the delay of nine months by keeping in view the special circumstances of this matter only.
3. The second point which has been agitated is whether the appeal arising out of a controversy created by the award passed by the Tribunal stands abated on account of death of claimant or not. Shri Patwa has placed reliance on the judgment of this Court in the matter of Chuharmal Issardas v. Haji Wali Mohammed, 1968 Acc CJ 391, judgment of Bombay High Court in the matter of Maimuna Begum v. Taju, 1988 Acc CJ 417 and judgment of Punjab and Haryana High Court in the matter of New Suraj Transport Co. v. Ruby General Insurance Co., 1972 Acc CJ 416. He canvassed that provisions of Order 22, C.P.C. are not applicable to appeals arising out of the controversy caused by the award passed by the Tribunal in motor accident claim cases. Shri Dandvate, counsel appearing for respondent No. 4 insurance company placed reliance on the judgment of Supreme Court in the matter of Melapurath Sankunni Ezhuthassan v. Thekittil Geopala-kutty Nair, 1986 Acc CJ 440 : (AIR 1986 SC 411).
4. In the matter of Chuharmal v. Haji Wali Mohammed (1968 Acc CJ 391) (supra) Division Bench of this Court held that provisions relating to abatement contained in Order 22 of C.P.C. have no application to these proceedings (proceedings in respect of claim preferred by claimant before Motor Accident Claims Tribunal). The Division Bench of Bombay High Court held in Maimuna Begum's case (1988 Acc CJ 417) (supra) that the maxim actio personalis moritur cum persona cannot bar the right to sue claim by the L.Rs. of the deceased claimant because the maxim has been criticized even in the country of its origin as unjust, obscure in its origin, inaccurate in its expression and often resulting in grave injustice. Indian Courts have generally taken a view that the maxim should not be applied as a part of our law except, of course, where specifically engrafted in a statute and that the principles of justice, equity and good conscience should be followed. Punjab and Haryana High Court observed in New Suraj Transport Co.'s case (1972 Acc CJ 416) (supra) that a reading of Section 110-A of the Motor Vehicles Act would show that the applications for compensation are filed in a representative capacity. In case any person who has filed the claim dies the proceedings started in a representative capacity do not abate. If the other claimants are already on record, they can continue the proceedings. If the deceased was the sole claimant, his legal representatives or the persons for whose benefit the claim had been filed, could be brought on the record.
5. The Supreme Court in the case of Melepurath Sankunni (AIR 1986 SC 411) (supra) held that the question whether right to sue survives to the legal representatives of the deceased will have to be answered as no. It pointed out that the position, however, is different where a suit for defamation has resulted in a decree in favour of the plaintiff because in such a case the cause of action has merged in the decree and the decretal debt forms part of his estate and the appeal from a decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff-respondent which his legal representative is entitled to uphold and defend and is, therefore, entitled to be substituted in place of deceased respondent-plaintiff. Relying on this judgment Shri Dandvate argued that in the present appeal the claimant claimed enhancement of the compensation amount and the L.Rs. of deceased claimant are desirous of prosecuting the appeal further which the claimant has filed for enhancement of the compensation amount. According to Shri Dandvate the L.Rs. will not be having a right to prosecute further the present appeal keeping in view its peculiar nature.
6. It is to be noted that in the matter which was before the Division Bench of this Court Chuharmal was acting as agent of Mrs. Sadoribai (his wife) who was herself a co-applicant. In that matter the proposed L.R. of Sadoribai i.e. Chuharmal was already on record. Not only that but he was representing himself as agent of deceased Sadoribai. In the matter which was before Punjab and Haryana High Court (1972 Acc CJ 416) (supra), the othet claimants were already on record and they wanted to continue the proceedings. It is true that single Bench of Punjab and Haryana High Court held in that matter that had the deceased been the sole claimant, his legal representatives or the persons for whose benefit the claim had been filed, could, be brought on record. In the matter which was before Division Bench of Bombay High Court the deceased Abdul had died and his widow and minor children were substituted as appellants in his place. In the present matter the victim preferred the present appeal for enhancement of the compensation amount and his L.Rs. are desirous of continuing it. Shri Dandvate has pointed out paragraphs 4 and 5 from the judgment of Supreme Court in the case of Melepurth Sankunni (AIR 1986 SC 411) (supra) for the purpose of canvassing his point so far as present matter is concerned. It is pertinent to note that the said judgment revolved around a decree passed in defamation suit which was attempted to be prosecuted further by L.Rs. of deceased. The observations to be prosecuted further by L.Rs. of deceased. The observations of Supreme Court in the said matter will have to be restricted to the decree which has been passed by the Court in a defamation suit.
7. The Division Bench of Bombay High Court has discussed the relevancy of maxim 'actio personalis moritur cum persona' in Indian society and atmosphere. It has pointed out that even that maxim has been criticized in the country of its origin as unjust, obscure in its origion, inaccurate in its expression and often resulting in grave injustice. It has been pointed out that Indian Courts have generally taken the view that the maxim should not be applied as a part of our law except, of course, where specifically engrafted in a statute and that the principles of justice, equity and good conscience should be followed. The Bombay High Court has discussed some illustrations relevant to the maxim and has also made reference to Section 306 of Indian Succession Act. In the said judgment it has been opined that it was anomalous that while action can be maintained by an injured against wrongdoer for causing injury, no such action was permissible after his death. It also expressed the opinion that this anomaly was sought to be removed in England by Law Reforms Act and Fatal Accidents Act and soon thereafter even in India on similar lines the Legal Representatives Suits Act and the Indian Fatal Accidents Act were enacted as a result certain causes of action under the tort were made to survive and be available to the legal heirs. In paragraph No. 11 of the said judgment it has been pointed out that because of the unending rush of motor vehicles on the roads and constant increase of their use as mode of transport posed a constant threat of death and injury to persons as well as property and the long-drawn and expensive process of civil suit was considered too inadequate to render quick justice demanded by the situation. It was pointed out that, therefore, a now forum was created under the M. V. Act by inserting Sections 110-A to 110-F.
8. Thus, summing up all it will have to be concluded that in controversies arising out of award passed by Motor Accident Claims Tribunal, the right to sue is available to L. Rs. of deceased claimant.
9. The present matter is revolving around yet another different point and that is whether such L.Rs. have the right to claim enhancement of compensation by contesting the appeal further after the death of the original claimant. Shri Dandvate has argued that right to get enhanced compensation is a personal right available to such claimant only and it dies along with death of the claimant Shri Patwa submitted that when such right was available to L.Rs., right to have enhanced compensation should be also available to them. In logical corollary it will have to be concluded that when right to get compensation is available to L.Rs. by prosecuting further the claim or the appeal, right to get enhanced compensation should also be available to them.
10. Thus, in view of the discussion above, I come to the conclusion that the appeal does not abate and the L.Rs. of the deceased appellant are entitled to get themselves on record and pursue with this appeal. Learned counsel Shri Patwa is hereby permitted to make necessary amendment in the cause title of the appeal so as to bring the proposed L.Rs. of deceased appellant on record. It be done within a week and thereafter the appeal be listed for hearing on admission. Thereafter within seven days learned counsel for appellant to furnish copy of appeal memo to Shri Dandvate who is already representing respondent No. 4.