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2005 DIGILAW 1 (HP)

RAM ASHARI v. H. R. T. C.

2005-01-04

DEEPAK GUPTA

body2005
JUDGMENT Deepak Gupta, J.—This appeal had originally been filed by the claimant-Karam Chand for enhancement of the compensation. 2. The appellant was the injured in the accident. He has died during the pendency of this appeal. His legal representatives were brought on record. 3. The main question which arises is whether an appeal which was filed by the injured-claimant for personal injuries suffered by him can be continued by his legal representatives. 4. Shri Ajay Sharma, learned Counsel for the appellant contended that the cause of action survives to the legal heirs and as such they are entitled to prosecute the claim. 5. On the other hand, Shri Rakesh Jaswal learned Counsel appearing for the respondent-Corporation has stated that cases of personal injury not resulting in death of the injured give rise only to personal action in which heirs of such person are not entitled to continue with the case. The right of injured person to claim damages is personal to him under the principle of (actio personalis moritur cum persona). 6. It is well settled law that an action in torts for claim of compensation for damages on account of injuries suffered by an injured is a right personal to the injured. This right cannot be continued by the legal heirs or legal representatives. It is no doubt true that the legal heirs or the legal representatives can continue the proceedings in so far as they relate to the loss to the estate such as medical expenses, amount spent on treatment etc. However, the claim with regard to the pain and suffering, future loss of income and such related matters is an action which is personal to the injured alone and cannot be continued after his death unless it is proved that the death is the result of the injuries suffered in the accident. 7. A Division Bench of this Court in Narinder Kaur and others v. State of H.P. and others [1991 ACJ 767] held as follows:— "8. We have heard the learned Counsel for the parties and gone through the records. The principle of actio personalis moritur cum persona relates only to the personal or bodily injuries and not to the loss caused to the estate of the deceased by the tortfeasor. We have heard the learned Counsel for the parties and gone through the records. The principle of actio personalis moritur cum persona relates only to the personal or bodily injuries and not to the loss caused to the estate of the deceased by the tortfeasor. In its applicability, the principle stands considerably modified by the provisions of Section 306 of the Indian Succession Act, which clearly lays down that all demands whatsoever and all rights to prosecute or defend any action or special proceedings existing in favour of or against a person at the time of his death survive except causes of action for defamation, assault and other personal injuries not causing death of the party etc. which come to an end with the death of injured. The loss to the estate is thus not covered by the exceptions contained in Section 306 of the Indian Succession Act. While taking this view, we are fortified by the decisions of the Supreme Court in Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankntty Nair, 1986 ACJ 440 (SC) and M. Veerappa v. Evelyn Sequeira, AIR 1988 SC 506. The claimants as legal representatives of the original claimant were, as such, entitled to be substituted in his place with a view to continue the proceedings in the case and to have a decision on the claim in respect of the loss caused to the estate of the deceased." 8. Keeping in view the settled position of law and the fact that in the present case there is no claim for loss to the estate and the entire claim is based on the personal claim of the deceased Karam Chand, the appeal cannot be continued and prosecuted by the legal representatives. In view of the above, the appeal does not svirvive and the same is dismissed with no order as to costs. Cross-objection No. 360 of 1996. In view of the law as laid down by a Division Bench of this Court in FAO No. 267 of 1993, titled Ms. Lata v. United India Insurance Company Ltd. and others, decided, on 27.10.2004, the cross-objections filed by the respondent - HRTC are not maintainable and the same are rejected. No costs. Appeal dismissed.