S.P. Goyal, J.
1. On Jan, 10, 1976 at about 6.30 A. M. Kaviraj Ram Singh while he was going on 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/- on various counts detailed below :-
1. Rs. 1,000/- on account of medical bills;
2. Rs. 2000/ incurred on special diet during illness.
3. Rs. 3000/- on account of the additional expenditure likely to be incurred to regain health.
4. Rupees 12,000/- on account of loss of earnings.
5. Rs. 3,000/- on account of loss to the sons and daughters because of their dependence upon him
6. Rs. 29,000/- for pain and suffering.
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. 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 suffering 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 1 referred the same 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 & Har.) (supra) the deceased had claimed the amount of Rs. 20,000/- 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 S. 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 s. 306 reads as under :-
'All demand 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 negatory'.
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 heirs. Similarly, in C. P. Kandaswamy v. Mariappa Stores, 1974 Acc. C. J. 362 : (AIR 1974 Mad 178) relied upon by the learned counsel for the respondent, the compensation had been claimed on account of the personal injuries sustained by the claimant and the Division Bench of Madras High Court rightly held that after the death of the injured the right to sue did not survive to the legal representatives.
6. The question before us came up for direct consideration before A. V. Krishna Rao, J. in Kongra Narayanamma v. Uppala China Simhachalam, 1975 Acc. C. J. 448 (Andh. Pra) who upheld the right of the legal representatives of the deceased to carry on the proceedings qua the damages claimed for the loss to the property of the deceased in the following terms :
'When a person sues for compensation in respect of the injuries sustained by him under S. 110A(1)(a) of the Act, the compensation may be claimed in respect of not only the physical injury but also the mental suffering including any expenses he might have incurred for treatment etc. He may also claim damages towards loss to the property consequent upon the accident. If the compensation awardable in respect of some of the items can be said to have resulted in loss to the property of the injured person, there is nothing in law or S. 110-A(1) of the Motor Vehicles Act which prohibits a claim for compensation being made in that behalf. In such cases, I am of the opinion that maxim act personalise mortar cum persons cannot be invoked, if the accident instead of resulting in an injury resulted in the death of a person. Under the law the legal representatives can claim compensation for loss to the estate of the deceased. If an action is initiated by an injured person for compensation in respect of items which involve loss to his property why should it not survive to the legal representatives when he dies during the pendency of an action?'
In Hazari v. Neck (dead), AIR 1968 SC 1205 while dealing with the question of devolution of the right of pre-emotion on the legal representatives of the deceased plaintiff, the Supreme Court explained the scope of the provisions of s. 306, Succession Act, 1925 and observed that this section expresses a qualification of the maxim act personalis mortar cum persona to the extent that the section indicates that amongst causes of action which survive are included some actions of a personal nature that is to say personal actions, other than those expressly excluded by the section itself. From these observations it is evident that the provisions of the said section not only provide that causes qua property would devolve on the legal heirs of the deceased plaintiff but also saves some of the actions of personal nature except those expressly excluded therein. Again, in Girijanandini Devi v. Bijendra Narain Choudhary, AIR 1967 SC 1124 the plea that the right of rendition of accounts was a personal claim and did not survive on the death of the plaintiff was rejected and the scope of the maxim, act personalis mortar cum persona was explained thus (at p. 1131):
'a claim for rendition of account is not a personal claim. It is not extinguished because the party who claims on account, the party who is called upon to accounts dies. The maxim 'act personalis mortuary cum persona' a personal action dies with the person has a limited application. It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory. Death of the person liable to render an account for the property received by him does not, therefore, affect the liability of his estate'.
The scope of the provisions of S. 306, Succession Act and the maxim 'act personalis mortar cum persona', therefore, appears to be well settled and the claim of damages on account of loss to the estate of the injured would not abate on his death. Consequently this appeal is allowed with costs and the impugned order reversed. The case would now go back to the Tribunal for further proceedings in accordance with law.
7. Appeal allowed.