Praveena R. Doshi and Others Vs. Ganpat Parab and Another - Court Judgment

Oral Judgment:

1. The Appeal arises out of the Award passed by the learned Presiding Officer of the Motor Accident Claims Tribunal, North Goa, Panaji, in Claim Petition no. 120/1998.

2. The facts of the case are as follows:

One Smt. Praveena R. Doshi, had filed the Claim Petition before the Tribunal claiming compensation for the injuries suffered by her in the accident in which the vehicle owned by the Respondent no. 2 and driven by Respondent no. 1 was involved. Smt. Praveena Doshi made the claim for compensation on the ground of loss of income, mental shock, pain, agony and sufferings, medicines and medical expenses, transportation charges, telephone charges, tea, food and breakfast and paying guest rentals. The accident had taken place on 07.07.1998. The Claim Petition was filed by Smt. Praveena R. Doshi and subsequently she executed a Power of Attorney in favour of her son Shri Hemang Doshi. Shri Hemang Doshi, had given evidence on behalf of the original claimant. During the pendency of the Claim Petition, after the evidence given on behalf of the claim petitioner was over, Smt. Praveena Doshi, died. The legal representatives of Smt. Praveena Doshi were brought on record. However, after the legal representatives were brought on record, no further evidence was given by them. The Tribunal proceeded with the matter and by the impugned Award, concluded that the present Appellants, i.e. the legal representatives of the original claimant had not proved that the death of Smt. Praveena Doshi has occurred due to the injuries which she suffered in the accident which took place on 07.07.1998. Smt. Praveena Doshi, died on 14.05.2005. In view of these conclusions, the learned Presiding Officer rejected the Claim Petition holding that the Appellants (legal representatives of the original claimant) are not entitled for the compensation. The Appellants being aggrieved by the Award passed by the learned Presiding Officer, have filed this Appeal.

3. I have heard Shri Rohit Bras De Sa, learned Advocate for the Appellant and Shri A. R. Kantak, learned Advocate for the Respondent no. 2.

4. I have seen the record with the assistance of the learned Advocates for the parties. After hearing the learned Advocates, the following points arise for my determination :

(1) Whether the Claim Petition could have been rejected in its entirety on the ground that the Appellants (legal representatives of the original claimant), have failed to prove that the death of Smt. Praveena Doshi occurred due to the injuries suffered in the accident which had taken place almost about seven years before her death?

(2) Whether the Appellants are entitled for the compensation?

5. Shri Rohit Bras De Sa, learned Advocate for the Appellants, has submitted that the Tribunal has committed an error in rejecting the Claim Petition in its entirety on the ground that the Appellants are not entitled for any compensation as they have failed to prove that the death of original claimant Smt. Praveena Doshi occurred due to the injuries suffered by her in the accident. Learned Advocate has submitted that the Appellants have not made any further claim on account of the death of the original claimant and by way of amendment to the Claim Petition, they have stated that the amount as claimed in the Claim Petition by Smt. Praveena Doshi as compensation for the injuries suffered by her has to be treated to be compensation in respect of the death of the original claimant. The learned Advocate for the Appellants has submitted that the Tribunal has rejected the Claim Petition mainly on the ground that the Appellants who are the legal representatives of the original claimant, are not entitled for any compensation on account of the personal injuries suffered by her in the accident. The learned Advocate for the Appellant has submitted that the Tribunal has held in paragraph 22 of the impugned Award that the original claimant would have been entitled for the compensation of Rs.3,29,978.93 had she been alive and after deducting a sum of Rs.67,000/- which is paid by the Respondent no. 2, she would have been entitled to Rs.2,62,980/-. The learned Advocate for the Appellants has pointed out that the Tribunal has dealt with the details of entitlement of the original Claimant under different heads. The submission on behalf of the Appellants is that the Appellants are entitled for the compensation of Rs.3,29,978.93 as they are the legal representatives of the original claimant.

6. Shri A. R. Kantak, learned Advocate appearing for the Respondent no. 2, has submitted that the Appellants have no legal right to prosecute the Claim Petition after the death of the original claimant as the Appellants, who are the legal representatives of the Appellants, are not entitled to the compensation for the injuries suffered by the original claimant. Learned Advocate further submits that the accident had taken place on 07.07.1998 and the original claimant died on 14.05.2005 i.e. after a period of about six years and 10 months and that the Appellants failed to prove that the original claimant died due to the injuries suffered in the accident. Learned Advocate further submitted that the learned Presiding Officer has dealt with the issue properly and has rightly come to the conclusion that the Appellants are not entitled for the amount of compensation which the claimant had claimed on account of personal injuries suffered by her. In support of his submissions, Shri Kantak, learned Advocate, has relied on the judgments reported in:

(i) 1991 ACJ 707 in the case of Kannamma vs. Deputy General Manager;

(ii) 2002 ACJ 1828 in the case of Uttam Kumar (Deceased) vs. Madhav and anr.;

(iii) Miscellaneous First Appeal No. 4031 of 2007 (MV) in the case of Divisional Manager vs. Mallappa Basappa Indur, passed on 18.01.2013 by the High Court of Karnataka, Circuit Bench at Dharwad;

(iv) (1999) 03 Mh. L. J. 285 in the case of Skoda Afonsa (since dec.) through his LR Dr. Bossuet and anr. vs. Motor Accident Claims Tribunal, Panaji, Goa, and Ors.;

(v) (2010) 10 S.C.C. 512 in the case of Man Kaur (dead) by LRS vs. Hartar Singh Sangha.

7. Shri Kantak, learned Advocate for the Respondent no. 2, has submitted that the judgment of the Full Bench of Karnataka High Court has laid down that a Claim Petition under Section 110-A of the Motor Vehicles Act, 1939, by the person sustaining bodily injuries in a motor accident, claiming compensation for personal injuries as also for compensation towards expenses, loss of income, etc., (loss to estate) can, on such person's death occurring as a result or consequence of bodily injuries sustained in the motor accident, be prosecuted by his/her legal representatives only in so far as the claim for compensation in that claim petition relates to loss to estate of the deceased person due to bodily injuries sustained in the motor accident. The learned Advocate for the Respondent no. 2 has submitted that the same view has been reiterated by the learned Single Judge of the Karnataka High Court in Miscellaneous First Appeal no. 4031/2007 (MV). Shri Kantak, learned Advocate, has relied on the Judgment reported in the case of Dr. Skoda Afonso vs. Motor Accident Claims Tribunal, Panaji, Goa,(supra), and has submitted that the rights of the parties are governed by Article 1737 of the Portuguese Civil Code, which lays down that the inheritance covers all the properties, rights and obligations of the author, which are not merely personal or which are otherwise expected by the disposition of the author himself or by law. In substance, the submission on behalf of the Respondents is that the Appellants are not entitled to continue the prosecution of the Claim Petition after the death of the original claimant. The learned Advocate for the Respondent no. 2 has further submitted that the Appellants have not led any evidence and it is rightly dealt with by the learned Presiding Officer and no infirmity can be attributed to the conclusions of the learned Presiding Officer.

8. Shri Rohit Bras De Sa, learned Advocate for the Appellant, has submitted that the issue about the entitlement of the legal representatives of the original claimants to prosecute the Claim Petition is no more resintegra and the Division Bench of this Court in the case of Maimuna Begum and Ors. vs. Abdul Razzaque Qureshi and Ors. reported in 1989 Mh. L.J. 352 has held that the cause of action to continue the Claim Petition survives to the legal representatives. The submissions on behalf of the Appellants is that the Tribunal have come to the conclusion that the Appellants have no right to prosecute the Claim Petition contrary to the law laid down by the Division Bench of this Court in the case of Maimuna Begum and Ors. (supra). Therefore, the findings of the Tribunal on that issue has to be set aside. The learned Advocate has submitted that the Tribunal has already come to the conclusion that the original claimant has proved that she has incurred an expenditure of about Rs.1,62,978.93 for accommodation, ambulance services, telephone bills, travel charges, etc., and this amount could not have been denied to the Appellants and, consequently, the Appellants are entitled to compensation on the above mentioned account.

9. Shri Kantak, learned Advocate for the Respondent no. 2 has submitted that the facts in the case of Maimuna Begum and Ors. (supra) are distinguishable to the facts of the present case. According to the learned Counsel for the Respondent no. 2, in the case of Maimuna Begum and Ors. (supra), the Order was passed in favour of the original claimant and the original claimant had filed the Appeal and during the pendency of the Appeal, the original claimant had died. The question that arose was whether his legal representatives are entitled to prosecute the Appeal. According to the learned Advocate for the Respondent no. 2, the Award having passed during the lifetime of the original claimant it can be said that the amount awarded by the Tribunal was an estate and the legal representatives of the original claimant were entitled to defend the estate and that they were entitled to the amount granted to the original claimant.

10. In the case of Maimuna Begum and Ors. (supra) the Award was passed against the driver and the insurer and the owner were absolved. The original claimant had filed Appeal challenging the rejection of the claim as against the owner and the insurer and this is specifically recorded in the judgment. The original claimant died during the pendency of the Appeal and the issue had arisen whether his legal representatives were entitled to be brought on record and to prosecute the Appeal. The Division Bench of this Court framed the specific point for determination as follows:

œ ...

(3) Whether the right to sue the owner and the insurer survives to the legal heirs??

The Court answered the issue by concluding that the cause of action survives in favour of legal representatives. The submissions made on behalf of the Respondent no. 2 for distinguishing the judgment in the case of Maimuna Begum and Ors. (supra), is required to be examined in this background. The Hon'ble Supreme Court in the judgment in the case of Dalbir Sinch and Ors. vs. State of Punjab reported in (1979) 3 S.C.C. 745, has laid down as to how the ratio decidendi has to be deduced. Keeping these principles in mind, the submissions made on behalf of the Respondent no. 2 are to be considered. The Hon'ble Supreme Court in the judgment reported in the case of Dalbir Sinch and Ors. vs. State of Punjab (supra) has laid down as follows:

œ22. With greatest respect, the majority decision in Rajendra Prasad case does not lay down any legal principle of general applicability. A decision on a question of sentence depending upon the facts and circumstances of a particular case, can never be regarded as a binding precedent, much less œlaw declared? within the meaning of Article 141 of the Constitution so as to bind all courts within the territory of India. According to the well-settled theory of precedents every decision contains three basic ingredients:

œ(i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct or perceptible facts;

(ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and

(iii) judgment based on the combined effect of (i) and (ii) above.?

For the purposes of the parties themselves and their privies, ingredient (iii) is the material element in the decision for it determines finally their rights and liabilities in relation to the subject-matter of the action. It is the judgment that estops the parties from reopening the dispute. However, for the purpose of the doctrine of precedents, ingredient (ii) is the vital element in the decision. This indeed is the ratio decidendi. It is not everything said by a judge when giving judgment that constitutes a precedent. The only thing in a judges decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. In the leading case of Qualcast (Wolverhampton) Ltd. v. Haynes it was laid down that the ratio decidendi may be defined as a statement of law applied to the legal problems raised by the facts as found, upon which the decision is based. The other two elements in the decision are not precedents. The judgment is not binding (except directly on the parties themselves), nor are the findings of facts. This means that even where the direct facts of an earlier case appear to be identical to those of the case before the court, the judge is not bound to draw the same inference as drawn in the earlier case.?

This is again reiterated in the judgment given in the case of State of Orissa and Ors. vs. MD. Illiyas reported in (2006) 1 S.C.C., 275. 11. In the case of Maimuna Begum and Ors. (supra), though Award was already passed, the Award was only against the driver and the owner and the insurer were absolved and the claim in the Appeal as recorded in the judgment was regarding the rejection of the claim against the owner and the insurer. It cannot be said that the original claimant in that case was defending œthe Award or the estate? and, consequently, the submissions made on behalf of the Respondent no. 2 that the Division Bench permitted the Respondents to prosecute the Appeal as they were entitled to defend the œestate or award?, is de-hors the factual position. In my opinion, the law laid down by the Division Bench of this Court in the case of Maimuna Begum and Ors. (supra), clearly covers the issue and it is binding Beneficial legislation. In these circumstances, there can be no other conclusion except to hold that the Appellants are entitled to prosecute the Claim Petition on merits.

12. Shri Kantak, learned Advocate for the Respondent no. 2 has submitted that after the death of the original claimant, the Appellants have not led any evidence and have not proved that the death of the original claimant has occurred due to the injuries suffered by her in the accident. The submission as made on behalf of the Respondent no. 2 has to be accepted and has to be held that the Appellants have failed to prove that they are entitled to the compensation on account of the death of the original claimant. However, the Tribunal has recorded the findings that the original claimant would have been entitled for the amount of Rs.1,62,978.93 if she would have been alive. The original claimant has been held entitled to this amount for the purchase of medicines for treatment for accommodation, ambulance services, telephone bills, travelling charges, etc. The Appellants, who are indisputably the legal representatives of the original claimant, are entitled to make this claim as it is a loss caused to the estate of the original claimant and, consequently, to the Appellants. There is no challenge to the conclusions of the Tribunal regarding the entitlement of the original claimant for the amount of Rs.1,62,978.93. In the circumstances, I hold that the Appellants are entitled for the amount of compensation of Rs.1,62,978.93 under the heads as stated in the Award. The original claimant was paid an amount of Rs.67,000/- by the Respondent no. 2. After deducting this amount, the Appellants are entitled to Rs.95,978.93, which are rounded off to Rs.95,980/-.

13. The Tribunal has recorded that the original claimant was entitled for Rs. 1,56,000/- for loss of future income, Rs.6,000/- for future loss of actual income and for Rs.5,000/- towards pain and sufferings. This amount is calculated by the Tribunal for the heads which fall under the category of personal loss to the original claimant. The Appellants, who are the legal representatives of the original claimant, will not be entitled for this amount as per the legal position which derives from the judgment reported in Kannamma vs. Deputy General Manager (supra).

14. Shri Rohit Bras De Sa, learned Counsel for the Appellants, has submitted that in view of Article 1732 of the Portuguese Civil Code, the Appellants will be entitled for this amount also as a composition of inheritance. However, it is undisputed that the Appellants have not led any evidence after the death of the original claim and have not placed any material on the record to substantiate their claim. Therefore, I am not dealing on this issue and it is kept open to be considered in some other case. Shri Kantak, learned Senior Advocate for the Respondent no. 2, has submitted that the original claimant had not given any evidence and the evidence was given by her Power of Attorney and in view of the judgment in the case of Man Kaur (dead) by LRS vs. Hartar Singh Sangha. (supra), the amount of compensation cannot be awarded to the Appellants. The Award of compensation for the medicines, treatment, accommodation, telephone bills, travelling charges, etc., cannot be said to be in respect of any amount about which only the original claimant had exclusive knowledge. On the contrary, looking to fact that the original claimant was hospitalised, in my view, the evidence of the power of attorney of the original claimant who is the son of the original claimant is more reliable in the circumstances.. The submission made on behalf of Respondent no. 2 in this regard, is not acceptable.

In view of the above, the Award passed by the Tribunal is set aside. It is held that the Appellants can prosecute the Claim Petition in respect of the claim for the compensation in respect of the amount spent for medicines, treatment, telephone bills, ambulance charges, transportation, etc. It is found that the Appellants are entitled for the amount of Rs.1,62,980/- under the above heads. After deducting the amount already paid to the original claimants, the appellants are entitled to Rs.95,980/-.

Shri Kantak, the learned Advocate for the Respondent no. 2 states that an amount of Rs.25,000/- was paid to the original claimant towards no fault liability. Relying on the submissions made by the learned Advocate for the Respondent no. 2, it is ordered that the said amount of Rs.25,000/- should be however deducted from the amount for which the Appellants are held entitled and, accordingly, the amount of Rs.70,980/- will be awarded to the Appellants pursuant to the Order dated 18.04.2000.

The Appellants are entitled to interest at the rate of 9% per annum on Rs.70,980/- from the date of the filing of the Claim Petition till the amount is paid to them. The Respondents are jointly and severally liable to pay the amount. The Appellants are entitled to the proportionate costs throughout from the respondents.

14. The Appeal is allowed in the above terms.