Andhra Pradesh High Court - Amravati

S Cahndra Sekhar Died And 2 Others vs Y Doraswamy And 2 Others on 20 October, 2022

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

                  M.A.C.M.A.No.3023 of 2018
                             and
                    C.R.P.No.5383 of 2018

COMMON ORDER:

      M.A.C.M.A.No.3023 of 2018 is filed under Section 173 of

the Motor Vehicles Act, 1988 questioning the correctness of the

order dated 12.07.2018 passed by learned Chairman, Motor

Accidents   Claims     Tribunal-cum-Principal    District   Judge,

Chittoor (for short, 'the Tribunal') in M.V.O.P.No.226 of 2012.

2.    C.R.P.No.5383 of 2018 is filed under Section 115 C.P.C.

questioning the correctness of order dated 12.07.2018 of

learned Chairman, Motor Accidents Claims Tribunal-cum-

Principal District Judge, Chittoor      in I.A.No.333 of 2018 in

M.V.O.P.No.226    of   2012.    Since    both   the   matters     are

interrelated, they are heard together and are now disposed of by

this common order.

3.    Sri S.Chandrasekar was a Junior Civil Judge, Chittoor.

He was travelling in a car being driven by a driver and on

06.02.2012 at about 3:30 P.M. an Ambassador Car bearing

No.AP-03-K-2085 came in the opposite direction, on the wrong

side of the road and dashed the car of the judicial officer in

which the judicial officer suffered various injuries all over the
                                2
                                                       Dr. VRKS, J
                                          M.A.C.M.A.No.3023 of 2018
                                             & C.R.P.No.5383 of 2018


body and also suffered fractures to his left knee and left

shoulder.   The injured judicial officer filed M.V.O.P.No.226 of

2012 under Section 166 of Motor Vehicles Act seeking

compensation as against respondent No.1, who was the owner

of the offending vehicle, respondent No.3, who was the driver of

the offending vehicle and respondent No.2, the insurance

company. The matter was pending before the Tribunal at

Chittoor and the evidence on behalf of both parties was

completed and arguments on behalf of the claimant were heard

and for the insurance company also arguments were submitted

and while the matter was coming up for hearing arguments on

behalf of the owner and driver of the offending vehicle, it was

brought to the notice of the learned Tribunal that the claimant-

judicial officer Sri S.Chandrasekar died on 02.04.2018. Thus,

at the verge of completion of the proceedings before the

Tribunal, the injured claimant died. His wife and a daughter

(minor) filed I.A.No.333 of 2018 under Order XXII Rule 3 and

Section 151 C.P.C. praying the learned Tribunal to grant

permission to them to be impleaded as legal representatives of

the deceased claimant. The owner and driver did not choose to

appear and protest as against that prayer. The insurance

Dr. VRKS, J M.A.C.M.A.No.3023 of 2018 & C.R.P.No.5383 of 2018

company filed its counter. After enquiring into that application,

the learned Tribunal by assigning its own reasons dismissed the

said application. Aggrieved by it, C.R.P.No.5383 of 2018 is filed

before this Court by the legal representatives of the deceased.

The learned Tribunal having dismissed I.A.No.333 of 2018

holding that the case abated, it dismissed M.V.O.P.No.226 of

2012 as abated. Questioning that order, M.A.C.M.A.No.3023 of

2018 is filed by the legal representatives. The grounds urged in

the revision as well as the appeal are common.

4. In the present proceedings in spite of service of notice,

respondent Nos.1 and 3 did not choose to appear. Respondent

No.2/Insurance Company made appearance.

5. Before adverting to the contentions raised in the appeal

and revision, this Court is to notice as to what transpired before

the learned Tribunal. The fact that the injured claimant

Sri S.Chandrasekar died on 02.04.2018 and the fact that he

was survived by his wife and minor daughter and that they are

his legal representatives are not disputed both before the

learned Tribunal as well as in this Court. As could be seen from

the material papers and the impugned orders, the cause of

Dr. VRKS, J M.A.C.M.A.No.3023 of 2018 & C.R.P.No.5383 of 2018

death of the original claimant was not really brought on record

by both parties. However, from the impugned orders, one could

see that during the course of hearing the application for

impleadment of legal representatives, the learned Tribunal was

informed by the learned counsel for insurance company that the

original claimant died because of cancer. Acting upon that, an

observation was recorded that the death of claimant was not out

of injuries he sustained in the accident, but it was a natural

death. During the hearing of the present matters, no

contentions are raised on both sides about this aspect of the

matter.

6. The only ground on which learned Tribunal chose to

dismiss the application and the petition is that the cause of

action did not survive death of the injured claimant and

therefore, legal representatives could not be brought on record

and the claim for compensation is abated. Those conclusions

were reached based on Section 306 of the Indian Succession

Act, 1925 as reiterated by Full Bench of Karnataka High Court

in Uttam Kumar (deceased) v. Madhav and another1.

1 (2006) ACC 378

Dr. VRKS, J M.A.C.M.A.No.3023 of 2018 & C.R.P.No.5383 of 2018

7. Challenging that, the revision and appeal are filed.

8. Learned counsel appearing for legal representatives

submits that the impugned orders are in violation of the law

and the cause of action survives the death of the injured

claimant and the legal representatives are entitled to prosecute

the case for the estate of the deceased and the subsisting

precedent and weight of law is against the principles followed by

the learned Tribunal.

9. As against it, learned counsel appearing for respondent

No.2-Insurance Company submits that the impugned orders are

supported by statutory reasons and no interference is required.

10. Having heard the submissions on both sides and

considering the material on record, the point that falls for

consideration is:

"Whether the claim for compensation for injuries

sustained by the claimant survives his natural death or not?

11. Point:

A perusal of the claim petition filed by the deceased would

show that he made a claim for compensation under various

Dr. VRKS, J M.A.C.M.A.No.3023 of 2018 & C.R.P.No.5383 of 2018

heads, which include expenses for his medical treatment,

transportation charges, loss of leave salary, charges for

attendant, charges for room rents, damage to the clothing and

other articles. He also sought for claims towards his pain and

suffering, loss of amenities and loss of future prospects etc.

Thus, under distinct heads, he sought for special damages as

well as general damages. As he died, his wife and daughter

intended to come on record under Order XXII Rule 3 C.P.C. The

said provision indicates that if a sole surviving plaintiff died and

if the right to sue survives, the legal representatives could get

impleaded and proceed with the legal proceedings. The claim

was filed by the original claimant under Section 166 of the

Motor Vehicles Act, 1988. This provision provides for claims by

injured and claims on behalf of the deceased. This provision

employs the words 'legal representatives'. The Motor Vehicles

Act, 1988 has not defined legal representatives. Rule 2(g) of the

A.P.Motor Vehicles Rules, 1989 speaks about legal

representatives stating that the meaning that is assigned in

Section 2(11) C.P.C. shall be followed. Section 2(11) C.P.C.

defined legal representative stating that it is a person, who in

law represents the estate of the deceased person. Thus, if there

Dr. VRKS, J M.A.C.M.A.No.3023 of 2018 & C.R.P.No.5383 of 2018

is estate for the deceased, his legal representatives could pursue

the litigation as representatives of that estate of the deceased.

This much is clear from the procedural provisions. Now, the

question is, in a claim for compensation for personal injuries,

whether any estate is involved or not? If no estate is involved,

then right to sue does not survive and question of legal

representatives pursuing the litigation does not arise. If there

exists estate in the eye of law in such a compensation claim,

then one shall hold that right to sue survives and legal

representatives shall be permitted to prosecute the case. In

similar circumstances, this Court had the occasion to decide

this issue. In United Insurance Company Ltd. v. E.Laxma

Reddy (died) per LRs.2, this Court has stated that the liability

of the owner of the vehicle and the insurer to pay compensation

for the injuries of a claimant does not come to an end in a case

where the claimant dies before the claim is settled. The liability

subsists and the legal representatives of the claimant would

step into the shoes of the claimant. The entitlement of the legal

representatives would be confined to the amount which the

MANU/AP/0159/2006

Dr. VRKS, J M.A.C.M.A.No.3023 of 2018 & C.R.P.No.5383 of 2018

deceased claimant could have recovered had he been alive. As

that is to be treated as the 'estate' of the deceased.

12. A similar question arose during the pendency of an

appeal. Reiterating this principle, this Court in S.Vykuntam v.

G.Narayana3 stated that the claim for loss of estate is available

and could be pursued by the legal representatives of the

deceased in the appeal. This Court also stated that loss of

estate would include expenditure on medicines, treatment, diet,

attendant, Doctor's fee etc. This Court also recorded the entire

body of the precedent of various High Courts holding similar

view. The impugned orders would show that the learned

Tribunal did not choose to consider these propositions of law of

this High Court. It went on to think in terms of Section 306 of

the Indian Succession Act as expounded in Uttam Kumar's

case in other jurisdictions. It failed to pay its attention about

the estate of the deceased etc. Learned counsel for legal

representatives cited the judgment in The Oriental Insurance

Company Limited v. Kahlon (Deceased) through his Legal

MANU/AP/0876/2006

Dr. VRKS, J M.A.C.M.A.No.3023 of 2018 & C.R.P.No.5383 of 2018

Representative Narinder Kahlon Gosakan4, wherein the

Hon'ble Supreme Court of India at para No.16 stated that they

could not approve the law laid down in Uttam Kumar's case (1

supra). In the impugned order in I.A.No.333 of 2018 in

M.V.O.P.No.226 of 2012, the learned trial Court held at para

No.15 as follows:

"15......in view of the law provided under Section 306 of Indian Succession Act and reiterated by Full Bench of Karnataka High Court in "Uttam Kumar (Deceased) vs. Madhav and another" 1 (2006) ACC 378, and since the claim of 1st petitioner is, for compensation towards the personal injuries he received in the accident and his death has not resulted as a consequence of said injuries, and on account of his death during pendency of claim petition, his right to sue the respondents for the injuries does not survive to petitioners 2 and 3 and to prosecute claim petition filed, and they are not entitled for impleadment in the proceedings, and the point is answered accordingly against the petitioners 2 and 3 and in favor of 2nd respondent."

Learned trial Court based its decision mainly relying on that

judgment of the Hon'ble Karnataka High Court, which the

Hon'ble Supreme Court of India chose not to approve. The

Hon'ble Supreme Court of India further held at para No.18,

MANU/SC/0531/2021/AIR 2021 SC 3913

Dr. VRKS, J M.A.C.M.A.No.3023 of 2018 & C.R.P.No.5383 of 2018

while the claim for personal injuries normally does not survive

the death of the injured, but the claim for loss of estate survives

and that could be pursued by the legal representatives of the

injured claimant. At para No.20, the Hon'ble Supreme Court of

India stated that loss of estate would include expenditure on

medicines, treatment, diet, attendant, Doctor's fee etc. including

income and future prospectus, which would have caused

reasonable accretion of the estate but for the sudden

expenditure which had to be met from, and depleted the estate

of the injured, subsequently deceased. At para No.21, the

Hon'ble Supreme Court of India stated that compensation under

the head 'pain and suffering' being personal injuries cannot be

sustained in such cases. At para No.11 quoting the precedent it

seems to state that using the definition under Section 306 of the

Indian Succession Act, 1925 it is unjust to non-suit the heirs of

the deceased.

13. The above principles would amply demonstrate that on

death of the injured in a motor vehicle claim pending before

learned Tribunal, there is estate left behind by him and that

estate has to be represented through his legal representatives.

Dr. VRKS, J M.A.C.M.A.No.3023 of 2018 & C.R.P.No.5383 of 2018

This Court has already narrated various heads under which the

deceased claimant put forth his claim and this Court also

recorded various heads which form part of the estate of the

deceased. Since they are available on record, the learned

Tribunal ought to have considered all these and ought to have

held that cause of auction did survive and it ought to have

permitted the legal representatives to come on to the record and

pursue. The order of the learned trial Court is against law and

therefore, cannot be supported. Before concluding this, it could

be stated that all this controversy could be said to have been

resolved by the legislature since Sub-Section (5) is incorporated

in Section 166 of the Motor Vehicles Act. The same is extracted

here:

"(5) Notwithstanding anything in this Act or any other law for the time being in force, the right of a person to claim compensation for injury in an accident shall, upon the death of the person injured, survive to his legal representatives, irrespective of whether the cause of death is relatable to or had any nexus with the injury or not."

14. This was brought into statute book by Section 53(v) of

Motor Vehicles (Amendment) Act, 2019 on 09.08.2019. That

was brought into force from 01.04.2022 by a notification in SO

Dr. VRKS, J M.A.C.M.A.No.3023 of 2018 & C.R.P.No.5383 of 2018

859(E) dated 25.02.2022, which is published in the Gazette of

India; Extraordinary [(Part-II -SEC.3(ii)] of Ministry of Road

Transport and Highways Notification. By this provision,

whenever the injured claimant dies either because of the

injuries or because of other causes, the right for legal

representatives to pursue the claim is granted. It is for all the

above stated reasons, the impugned orders shall be set aside.

Point is answered in favour of the appellants-cum-revision