Smt. Maharani Dey and ors. Vs. Debabrata Bardhan and anr. - Court Judgment

Excerpt:
- - 1 as well as mr. corresponding to 13-4-1977. 6. it is well settled that, when a power is conferred an an authority coupled with duty, the power has to ba exercised as and when occasion arises in an appropriate case. in such nature of a case, their lordships of the supreme court on several occasions have clearly given indication that the insurance company or the state as the case may be, if involved in such nature of litigation under the motor vehicles act. should come forward and try to end the litigation without prolonging the same so that the poor litigants claiming compensation, may be compensated, if however, the accident is proved. t.c. das, j. 1. this petition is made under section 115 of c.p.c. against the order dt. 7-3-79 passed by the learned member, motor accidents claims tribunal inmotor accident title suit no. 7 of 1974 rejecting the prayer of the petitioners who wanted to be substituted in place of the deceased claimant. the predecessor-ing-interest of the petitioner (rebati mohan dey) since deceased, was knockeddown in accident wherein he was injured by the bus belonging to the opposite party no. 1. shri debabrata bardhan. this occurred on 18-11-73 as a result of which. rebati mohan dey sustained a serious injury and his two legs had to be amputated. he filed a claim petition in the court of the motor accidentsclaims tribunal claiming compensation for such iniury to the extent of rupees 40,000 and.....

Judgment:

T.C. Das, J.

1. This petition is made under Section 115 of C.P.C. against the order dt. 7-3-79 passed by the learned Member, Motor Accidents Claims Tribunal in

Motor Accident Title Suit No. 7 of 1974 rejecting the prayer of the petitioners who wanted to be substituted in place of the deceased claimant. The predecessor-ing-interest of the petitioner (Rebati Mohan Dey) since deceased, was knocked

down in accident wherein he was injured by the bus belonging to the opposite party no. 1. Shri Debabrata Bardhan. This occurred on 18-11-73 as a result of which. Rebati Mohan Dey sustained a serious injury and his two legs had to be amputated. He filed a claim petition in the Court of the Motor Accidents

Claims Tribunal claiming compensation for such iniury to the extent of Rupees 40,000 and impleaded the owner of the bus as opposite party No. 1 and the New India Assurance Company as opposite party No. 2 in the said claim application. During the pendency of the claim petition. the claimant Rebati Mohan Dey having died, the present petitioners being the legal heirs and representatives, made an application for substitution of their names in place of the deceased claimant. The petitioners wanted that they should be allowed to continue the litigation as cause of action survives and they are necessary parties to be treated as claimants being the surviving legal representatives of Rebati Mohan Dey. The learned Member, Motor Accidents Claims Tribunal rejected their prayer on the ground that the action brought by Rebati Mohan was purely a personal one and the cause of action does not survive on his death. Therefore, the subject-matter of the present litigation was ended at that end on dismissal of the claim petition by the order dt. 7-3-79. This order has been challenged by the petitioners in this application.

2. Mr. A. M. Lodh. the learned counsel for the petitioners has submitted that the approach of the learned Tribunal that it was a personal cause and it does not survive on his death to the legal representatives to continue the action. is absolutely untenable in law and the impugned order as such, is liable to be quashed.

3. Mr. P. M. Palit, the learned counsel for the opposite party No. 1 as well as Mr. P. K. Dhar. the learned counsel for the opposite party No. 2. supporting each other, have stated that the claim petition has abated as there cannot be any substitution inasmuch as the injured died long after the accident and the cause of action does not survive to the legal heirs to continue the proceeding

on the ground that the injuries so sustained by Rebati Mohan Dey was not the immediate cause of his death. In other words, Rebati Mohan died after long 4 years and therefore, his death has

no nexus with the injuries sustained by him long before 4 years of his death. The last submission of Mr. Dhar. the learned counsel for the opposite party No. 2 is, that at any rate, provisions of Civil Procedure Code are not applicable in a proceeding under Motor Vehicles Act and therefore, as there is no specific provision for substitution under the Motor Vehicles Act. the prayer for substitution cannot be allowed by applying the provision of the C:P.C. This contention of the learned counsel must be repelled. In this context. I desire to refer to a Division Bench decision of this Court where a similar matter came UP for consideration as to whether the C.P.C. is attracted and or has any application in a claim proceeding under Motor Vehicles Act. The Division Bench of this Court in M.A. (F.) No. 18 of 1978*. National Insurance Company Ltd. v. Pyara Singh (disposed of on 5-2-82) where I was also one of the parties to that decision with my learned brother Mr. Justice K. Lahiri. (who spoke for the Court) came to the conclu-tion and answered the question in affirmative to the effect that 'it is applicable'. The relevant portion can be ouotr ed as hereunder:--

'When the iurisdiction of the Civil Court was transferred to the Claims Tribunal, in the absence of any provisions to the contrary, it must be presumed that with the transfer of powers and jurisdiction to try such action, all the necessary powers the Civil Court had. were also transferred to the Tribunal. The object and purpose of the transfer of jurisdiction is to secure speedy and expeditious disposal of the claim cases by the Tribunals. The provisions relating to compensation are social legislation. The transfer of jurisdiction to the Civil Court is never for the purpose of limiting the claims, which the needy claimants could have obtained from the Civil Courts.'

4. However, in the said case the precise point for determination was. as to whether the claimant is entitled to get interest on the claimed amount as awarded by the Tribunal. We duly an-lysed the matter keeping in view the provisions of C.P.C. and the power that may be exercised by the Civil Court in awarding interest.

Therefore, in view of the above decision, it remains without any doubt that

the prayer for substitution is entert a in-able in a claim petition before the Motor Accidents Claims Tribunal.

5. The maxim 'Actio personalia mo-ritur cum persona' of the English Law may be given effect to in India to the extent it has been recognised under Section 306 of the Indian Succession Act read in the light of its other provisions. Therefore, by reason of the principle underlying the provision under Section 306 of the Succession Act. a cause of action based on personal injuries causing the death of the deceased survives to his heirs and they can be substituted in his place in a claim petition preferred by the deceased before the Motor Accidents

Claims Tribunal. This view has been supported by several High Courts including Calcutta High Court in a decision as reported in AIR 1969 Cal 394. (Piriska Rozario v. Ford Foundation). If it is found that the cause of action in a claim petition before the Motor Accidents Claims Tribunal, on the death of

the petitioners, survive to his heirs, the Tribunal must order substitution under the provision, of the Motor Vehicles Act, The instant proceeding was started because Rebati Mohan Dey sustained in-iuries in a motor accident and as stated by the petitioner in his petition as a result of the said iniury Rebati Mohan died though after 4 years. The petitioners have stated in this petition that as a result of the im'uries sustained by Rebati Mohan Dey on account of motor accident, he died on 30th Chaitra. 1383 B. S. corresponding to 13-4-1977.

6. It is well settled that, when a power is conferred an an authority coupled with duty, the power has to ba exercised as and when occasion arises in an appropriate case. The deceased had lost both his legs which were to be amputated thereby making him a completely disabled person, who was an earning member of the family and subsequently became a burden on others. The claim petition, though filed during his lifetime, the fate did not allow him to see the result. His legal heirs and representatives who are now eager to continue the case with a view to get some financial relief (for expenses) which they incurred in rendering him medical aid end in siving treatment to such a disabled iniured person, expected that they would be reimbursed by the verdict, of the Court. Their simple prayer for substitution was turned down on the Plea that no cause of action survivas.

Thepetitioners being the legal heirs have every right to be substituted as claimants in his place to claim compensation if allowed under the provision of law. It is not an absolute bar that they can-not claim compensation for the death of Rebati Mohan. Had there been no in-jury, the deceased might have survived for further period even up to the maximum limit of years which could be estimated at least up to the age of 65 years. The life span is normally taken to be up to the age of 60 years as has been decided by a Full Bench decision of thts Court. Even on the lower side, if we take the life span to be 60 years, still, the claimants are entitled to claim at least a compensation up to that period for the loss of life due to injury. The fact as stated by the petitioners that Rebati Mohan Dey died due to iniury though after 4 years, has not 'been denied by the opposite party in this Court., However, it depends upon the facts and circumstances of the case. In such nature of a case, their Lordships of the Supreme Court on several occasions have clearly given indication that the Insurance Company or the State as the case may be, if involved in such nature of litigation under the Motor Vehicles Act. should come forward and try to end the

litigation without prolonging the same so that the poor litigants claiming compensation, may be compensated, if however, the accident is proved. In this case, the only point raised is as to the power of substitution of the Tribunal under the provisions of C.P.C. Even if it is said that Order 22 of the C.P.C. is not strictly attracted yet. the Tribunal had inherent iurisdiction to allow such substitution. This is the view expressed in a decision of Punjab High Court in New India Assurance Co. v. Puniab Roadways. AIR 1964 Puni 235. I need not gc into that aspect because we have already held in a Division Bench decisior of this Court that the powers of the Civil Court have been transferred to the Tribunal and the Tribunal has iurisdictior to act in this manner by applying the provision of Order 22 of C.P.C. to consider a petition for substitution. I. therefore hold, that the impugned order must be quashed with a direction that the learned Member, Motor Accidents Claims Tribunal. West Tripura at Agartala. shall consider the substitution application of the petitioners and dispose of the same in accordance with law after giving opportunities to the Parties concerned

While disposing the application, the learned Tribunal shall bear in mind the observations made in this order.

7. In the result, the petition is allowed with cost of Rs. 100. The rule is made absolute. The petitioners shall be entitled to costs which I assess at Rs. 100. This amount of cost shall be paid bv the opposite parties Nos. 1 and 2 jointly at the rate of Rs. 50 each. Send down the records immediately to the Court below (the Tribunal) and it is expected, that the learned Tribunal shall dispose of the case as early as possible by giving priority to this case as it is an old matter and pending since 1974.