Judgment:
Narendra Kumar Jain, J.
1. Heard the learned Counsel for the parties.
2. This appeal is directed against the judgment/award dated 16th May, 1997 passed by the Motor Accident Claims Tribunal, Ton in MAC No. 32/92 whereby a total compensation of Rs. 1,10,250/- has been awarded under different heads in respect of injuries sustained injured Chhagan Lal husband of the present appellant.
3. Initially the claim application was filed by injured chhagan lal before the Tribunal in respect of injuries sustained by him in an accident arising out of motor vehicle look place on 7.11.91. However, during the pendency of the claim application, the injured died on 26.5.95 i.e. after three and half years from the date of accident and the present appellant being his wife was substituted in his place before the Tribunal. The learned Tribunal after considering the evidence and submissions of both the parties came to the conclusion that appellant is entitled to receive compensation for loss of estate for three and half years i.e. till the date of death of the injured and consequently awarded Rs. 84,000/- for three and half years as loss of estate assessing his income as Rs. 2,000/- per month. Rs. 15,250/- was further awarded for expenses of treatment, Rs. 6000/- for transportation and Rs. 5,000/- for healthy diet etc. Being aggrieved with the same, the present appeal has been filed for enhancement of the amount of compensation.
4. The learned Counsel for the appellant firstly contended that injured Chhagan lal died on 26.5.95 due to injury sustained by him in motor accident took place 7.11.1991, therefore, appellant is entitled to receive full compensation under the head of loss of estate, he further submits that even if Chhagan Lal did not die due to this injury, but died during the pendency of this application for compensation before Tribunal, still the appellant is entitled to receive full compensation for los of income for remaining part of life and not for the period upto the date of death of injured as done by Tribunal in the present case. He submits that ?Tribunal has committed an illegality in awarding compensation for loss of estate only for the period upto the date of death of injured Chhagan Lal.
5. The learned Counsel for the Insurance Company contended that injured did not die due to this injury. His death took place after three and half years from the date of accident. He further submits that it is a case of injury and in such matters claim is awarded only for a period upto the date of death of the injured if he dies during the pendency of the application and not for subsequent period, therefore, the Tribunal was right in awarding the compensation in the present matter for the period upto death of injured. He has also referred to the judgment of Naseeban and Anr. v. Surendra Pal and Ors. 1995 DNJ Raj. 241, wherein this Court awarded compensation for personal los only upto the date of death of the injured claimant and not for subsequent period, he has also referred to the decision of United India Insurance Co. Ltd. v. G. Kishen Rao and Ors. II 2004 ACC 249, wherein Andhra Pradesh High Court held that the legal representatives of the injured are not entitled for amount of compensation towards future loss of earning.
6. I have considered the submissions of the learned Counsel for the parties and examined the finding of the learned Tribunal in the light of record of the Tribunal.
7. The learned Tribunal while discussing issue No. 2 has considered that in the present case the accident took place on 17.11.91 and injured died on 26th May, 1995 during the pendency of the claim application. The Tribunal also considered that injured had sustained 14.06% permanent disability. The learned Tribunal also considered the arguments of the learned Counsel for the Insurance Company to the effect that in the case of injury, the claim application abates on the date of death of the injured. The Tribunal, therefore, awarded compensation treating the income of the appellant as Rs. 2000/- per month for a period of three and half years and awarded Rs. 84,000/- in this regard. It is relevant to mention that so far as monthly income of the injured determined by the Tribunal is concerned, the same has not been challenged by the learned Counsel for the appellant during the course of arguments. The Tribunal has also awarded Rs. 15,250/- towards treatment and further Rs. 6,000/- and Rs. 5,000/-respectively for transportation as well as healthy diet etc.
8. So far as first contention of learned Counsel for the appellant that injured Chhagan lal died on 26.5.95 due to injury sustained in motor accident dated 7.11.91 is concerned the same cannot be accepted. The application was filed for compensation for injury only. The death took place after three and half years. Although the name of present appellant was allowed to be substituted in place of injured Chhagan Lal but the application for compensation was not amended by the appellant after substitution of her name so as to make it as an application for compensation for death of Chhagan Lal in motor accident. There is no medical or other evidence to prove that Chhagan Lal died due to above injury. Therefore, first contention of the counsel for appellant is negatived.
9. The next contention of learned Counsel for the appellant that even if injured claimant died during the pendency of the application for compensation then also his legal representatives are entitled to receive full compensation for loss of estate for so called remaining part of his life and not for the period upto date of death, is also not acceptable. This Court while considering first submission of the appellant has already held that chhagan Lal did not die due to above injury, hence his death, during the pendency of the application, will be treated as his natural death and in such circumstances where fact of death of claimant is in knowledge of the Tribunal, then no compensation can be awarded for the period subsequent to the death of the injured-claimant.
10. In Naseeban and Anr. v. Surendra Pal and Ors. supra this Court has held as under:
7. Section 306 of the Indian Succession Act provides that the demands and rights of action of deceased shall survive to his executor/administrator, 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. According to this Section, only the claims to the personal or bodily injuries will die with the death of the claimant and not the claim regarding the loss caused t the estate of the deceased.
8. In Sampati Lal's case supra, this Court held that the maxim Actio Personalis Mortiur Cum Persona relates only to the personal or bodily injuries and not to the loss caused to the estate of the deceased by the tort-feasor. The same view was taken by this Court in L.Rs. of m Prakash : Smt. Maya's case supra.
9. The judgments passed in Calcutta Insurance Ltd. supra and Om Sharan's case supra are not on the point that the loss caused to the estate will also die with the deceased, the judgment of Hon'ble Supreme court passed in Melepurath Sankunni's case supra also supports the view taken in Sampati Lal's case supra. In that case the claim of the claimant was decreed. During the pendency of the appeal the claimant died. The Apex Court held that decretal debt forms part of the estate of the deceased 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. Under these circumstances, in my opinion, the claim regarding damages on account of pains, suffering and mental agony to the deceased will not survive but the claim regarding loss to the property will survive and the appellants are entitled to continue the proceedings. The order passed by the learned Judge refusing to take on record the legal- heirs of the deceased claimants is perverse and deserves to be set aside.
11. In Virendra Singh v. Ashok Kumar and Ors. , the Division Bench of the Madhya Pradesh High Court has held that appeal filed by injured for enhancement of the amount of compensation abates on the date of death of the injured and the legal heirs of injured are entitled to receive the amount of compensation awarded by the Tribunal only. The aforesaid judgment is based on the judgment of Hon'ble Supreme Court in Melepurath Sankumni Eznuthasan v. Thekithil Geopalan Kuthi Nair 1986 ACJ 440 wherein it was held that death of either party extinguished any cause of action in tort by one against the other. This was expressed by the maxim 'actio personalis mortiur cum persona'.
12. In view of the above position of law it is held that the legal heirs of the injured claimant who died during the pendency of the claim application before Tribunal, are entitled to receive compensation only for the period upto the date of death and not for subsequent period, therefore, Tribunal has not committed any error in not awarding compensation for subsequent period.
13. In the present case the amount of compensation awarded by learned Tribunal is just and reasonable looking to the age and income of the injured, therefore, I do not find any force in this appeal for enhancement of the amount of compensation. The appeal is accordingly dismissed with no order as to costs.