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2003 DIGILAW 364 (RAJ)

LR’S of Champa Lal v. Prem Singh

2003-03-06

N.P.GUPTA

body2003
JUDGMENT 1. - Heard learned counsel for the parties. 2. Vide order dated 21.9.2000 While admitting the appeal it was directed that the matter be listed for final disposal on the top of the list immediately has been received and according to office report, service is complete. Nobody has appeared on behalf of the respondents No 1 and 3. 3. By the impugned order, the learned trial Court had dismissed the claim petition, by dismissing the claimant's application filed u/Or. 22, Rule 3 for substitution of legal representatives of the deceased-claimant, Champa Lal, who died on 15.9.1995. 4. The facts of the case are that according to the deceased-claimant, Champa Lal, on 17.7.1994 he was travelling in roadways bus No. RJ 14/P-5794 from Jaisalmer to Barmer, at that time at about one and half kilometer towards north from village Gunga, the delinquent tanker No. GJ 12/T-9171, which was being driven rashly and negligently, hit the bus as a result of which the claimant suffered fracture of right arm, resulting into permanent disablement of the right arm. 5. It was claimed that the claimant was an arisen, carrying on the work of manufacturing gold ornaments, being gold smith, and was earning Rs. 2000/- per month at that time. Obviously, with permanent total disablement of the right arm, he claimed to have suffered loss of income, claim was lodged for medical expenditure, mental pain and agony, other losses, apart from claim for pain and suffering to be resulting in future from permanent disability. This claim was filed on 8.5.1994. 6. Perusal of the record shows that the claim petition was going on for service of the defendants, inasmuch as, insurance company was served, who did not file any written statement till then. In the meanwhile, the claimant expired. 7. All that has been held by learned Trial Court in the impugned order is that, the claim has been lodged for compensation for the personal injuries, and according to the learned Trial Court. the compensation can be awarded to the injured himself, that the legal representatives cannot be awarded any compensation. According to learned Judge if victim would have died in the accident, then claimants could definitely lodge the claim. But since he has not died, the claim cannot survive, and, therefore, the application for bringing on record legal representatives is not maintainable. the compensation can be awarded to the injured himself, that the legal representatives cannot be awarded any compensation. According to learned Judge if victim would have died in the accident, then claimants could definitely lodge the claim. But since he has not died, the claim cannot survive, and, therefore, the application for bringing on record legal representatives is not maintainable. With these findings, that application was dismissed, and consequently, the claim petition was also dismissed. 8. Assailing the impugned order, the learned counsel for the appellant on the authority of Sampat Lal v. Hari Singh, reported in 1985 RLW 220 : Melepuruth Sankumni Ezhuthassan v. The kittil Gopalankutty Nair, reported in 1986 ACJ 44 (SC) & Naseeban & Anr. v. Surendra Pal & Ors., reported in 1995 DNJ (Raj.) 241 , submits that the doctrine of 'Actio Personalis Mortiur Cum Persona' applies in cases of claim laid for damages for Defamation etc., but is not applicable in to the cases like the present case i.e., physical personal injury cases resulting from Motor Accidents, for the simple reason that, the claim lodged by the claimant not only included claim for compensation for personal injury, i.e., mental pain and agony and sufferings, but also included a claim for loss of income, resulting from alleged total permanent disablement of the arisen of his right hand. Likewise, claim was also laid for medical expenditure. All these are, according to the learned counsel, losses resulting to the estate of the deceased, which would have developed on, or enjoyed by, the legal representatives, had the deceased not died. Thus, according to learned counsel. the claim with respect to the compensation, which tant amounts to loss to the of the deceased does very much continue to survive, despite the death of the claimant, taking place per pendente lite. 9. On the other hand, learned counsel for the insurance company did not dispute this legal proposition that the claim for loss to the estate would as very much survive, but then it was submitted that, there is no material placed on record, to show, or enable the Court, to quantify the loss to the estate of the deceased, and the claim in substance, is only a claim for mental pain, agony, and sufferings suffered by the victim, on account of the injuries, and, therefore, the impugned order has rightly been passed. 10. 10. I have considered the submissions and perused the record, and have also gone through the judgments cited by the learned counsel for the... appellants. 11. Since it has not been disputed that the claim for loss to the estate would survive. I need not go into this legal aspect as propounded in the judgments cited on behalf of the appellant. Taking up the contention of the learned counsel for the respondent Insurance Company, suffice it to say that all the time of the death of the claimant, the claim petition was at the threshold, inasmuch as it was pending for service of some of defendants. In such circumstances, it is too early for me to say, and even for the learned counsel to contend that no material has been placed on record to enable the Court to quantify the loss to the estate of the deceased, inasmuch as, the time available to the claimant for producing the record and relevant material has not gone away, so as to forfeit his right to produce the record. 12. As such, since the claimant did include claim for loss of income, which obviously tantamount to claim for a loss to the estate of the &ceased, which was to come in the hands of the claimants, it cannot be said that the legal representatives did not at all remain entitled to pursue the claim. It is a different story as to how out of the compensation claimed, under different heads, the right of the legal representatives to pursue the claim survive with respect to compensation claimed under which particular head, but then it cannot be said that they retained no right to pursue the claim at all In that view of the matter, I am unable to sustain the impugned order. 13. Accordingly, the appeal is allowed. The impugned order is set-aside. The application field by the legal representatives of the claimant, on 5.12.1995 for bringing them on record is allowed, it is made clear that the consequences of death will obviously be taken note of by the learned trial Court, in the light of the judgments referred above, and the claim petition will 25 be tried out on merits in accordance with law. Parties shall bear their own costs of this appeal. 14. Since the claim already very old, the learned trial Court is directed to expeditiously complete the trial. Parties shall bear their own costs of this appeal. 14. Since the claim already very old, the learned trial Court is directed to expeditiously complete the trial. Record of the learned trial Court be returned forthwith.Appeal Allowed-Order of Tribunal Set Aside. *******