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2006 DIGILAW 874 (AP)

SURINA DURVASULU (DIED) S/O SURINA LATCHAIAH v. BHAVA NARAYANA MURTHY S/O BHAVA NARASAIAH

2006-07-21

C.Y.SOMAYAJULU

body2006
( 1 ) SURINA Durvasulu (claimant) filed a claim petition under section 166 of the Motor Vehicles Act, 1988 (the Act), seeking compensation of Rs. 1,00,000/- for the death of his wife latchumamma (the deceased) as a result of the rash and negligent driving of the first respondent while driving the tractor belonging to the second respondent which is insured with the third respondent. ( 2 ) THE claimant died during the pendency of the claim petition. When appellants 2 and 3, who are his parents, wanted to come on record as his legal representatives and prosecute the claim petition, respondents opposed that application on the ground that the cause of action did not survive. Observing that the question whether the cause of action survives or not would be decided at the time of disposal of the claim petition, the Tribunal permitted appellants 2 and 3 to come on record and prosecute the claim proceedings initiated by the claimant. ( 3 ) RESPONDENTS 1 and 2 filed their counter denying the averments in the claim petition and contending that the accident took place only due to the negligence of the deceased. because the driver of the tractor i. e. first respondent was not having a valid driving licence to drive the tractor. ( 4 ) IN support of their case appellants examined the third appellant as P. W. I and another witness as P. W. 2 and marked exs. A. l to A. 4. In support of their case, respondents 1 and 2 examined the first respondent as R. W. I and marked Exs. B. l and b. 2. No oral or documentary evidence was adduced by the third respondent. Holding that the accident took place due to the rash and negligent driving of the tractor by the first respondent, and as the first respondent was not having a valid driving licence to drive the tractor, third respondent is not liable to pay any compensation and holding that the cause of action on the death of the claimant did not survive to appellants 2 and 3, the Tribunal dismissed the claim petition. Hence, this appeal. ( 5 ) APPEAL against the first respondent was dismissed for non-payment of process. Hence, this appeal. ( 5 ) APPEAL against the first respondent was dismissed for non-payment of process. ( 6 ) THE points for consideration are- (1) Whether the cause of action survives to appellants 2 and 3 to continue the proceedings initiated by the claimant as his legal representatives (2) To what compensation are the appellants entitled to. POINT NO. 1: ( 7 ) THE Tribunal relying on in re P. Ramalakshmamma air 1970 ANDHRA PRADESH 178, and several other decisions, where it is held that as the Motor Vehicles act does not contain any specific provision to bring on record the legal representatives and as the cardinal principle behind Order xxii CPC is that in cases where the right to sue survives, only the legal representatives of a deceased plaintiff or defendant can come on record, and in cases where the right to sue does not survive, cpc does not provide for any legal representatives coming on record, as the right to sue dies with that person, only in cases where the right matured into a decree, would it devolve on the legal representative of the successful plaintiff or defendant, and since the claimant died during the pendency of the proceedings before his claim culminating into an award, his parents cannot continue the proceedings initiated by him for recovery of the damages due to the death of his wife, dismissed the claim petition. ( 8 ) IN NASEEBAN v. SURENDRA PAL 1996 ACJ 818 a learned single Judge of the Rajasthan High Court relying an MELEPURATH SANKUNNI ezhuthassan v. THE KITTIL GEOPALANKUTTY nair 1986 ACJ 440 (SC) held that if an injured victim in the accident dies during the pendency of his claim petition, his legal representatives can apply for substitution. ( 8 ) IN NASEEBAN v. SURENDRA PAL 1996 ACJ 818 a learned single Judge of the Rajasthan High Court relying an MELEPURATH SANKUNNI ezhuthassan v. THE KITTIL GEOPALANKUTTY nair 1986 ACJ 440 (SC) held that if an injured victim in the accident dies during the pendency of his claim petition, his legal representatives can apply for substitution. ( 9 ) IN PIRISKA ROZARIO v. FORD FOUNDATION air 1969 CALCUTTA 394 a Division bench of the Calcutta High Court held that legal representatives of injured victim, who dies during the pendency of the claim petition as a result of those injuries, are entitled to be substituted in his place after his death subject to the reservation that, on such substitution, they will be entitled to prosecute only that part of the claim of the victim which would be attributable to the physical injuries causing his death and subject further to the condition that they will no longer be entitled to make the same claim under section 110-A (1) (b) of the Motor Vehicles Act, 1939. ( 10 ) FROM the ratio in the above decisions, it is clear that if the claim of the deceased claimant has culminated into a decree it becomes part of his estate, and so, his legal representatives can continue the proceedings. Section 166 of Motor Vehicles Act, 1988, corresponding to Section 110-A of the Motor Vehicles Act, 1939, empowers injured persons, and in case of their death, their legal representatives, filing claim petitions under the Act. In this case, the claimant died after filing the claim petition for the death of the deceased. So, the question is whether the legal representatives of the claimant i. e. appellants 2 and 3 can prosecute the claim or not. ( 11 ) EVEN assuming that the death of deceased did not take place due to the rash and negligent driving of the first respondent, in view of Section 140 of the Act, claimant had a vested right to claim a minimum compensation of Rs. 25,000/- from the respondents. So, that right of the claimant to clailm a minimum compensation of rs. 25,000/- for the death of the deceased, is a part of his estate and that right can be inherited by his parents i. e. appellants, and so they do have a right to claim a minimum compensation of rs. 25,000/- from the respondents. So, that right of the claimant to clailm a minimum compensation of rs. 25,000/- for the death of the deceased, is a part of his estate and that right can be inherited by his parents i. e. appellants, and so they do have a right to claim a minimum compensation of rs. 25,000/- for the death of deceased even in their capacity as the legal heirs to the estate of the claimant. So, the Tribunal was in error in dismissing their claim petition on the ground that the cause of action did not survive. The point is answered accordingly. POINT NO. 2; ( 12 ) THE Tribunal having held that the accident occurred due to the rash and negligent driving of the first respondent should have given a finding on the amount of compensation the claimant would have been entitled to. But, unfortunately, no finding in that regard is given by the Tribunal. Be that as in may, since the claimant died a natural death during the pendency of the proceedings and since the appellants 2 and 3 are claiming compensation as the legal representatives of the claimant, but not as legal representatives of the deceased, even assuming that the whole cause of action survives, keeping in view the fact that the object behind Section 166 of the Act is to provide just compensation to the legal representatives of a deceased victim, and keeping in view the ages of the appellants and their relationship with the deceased, rs. 25,000/- payable under no fault liability would only be reasonable amount of compensation payable to the appellants eve^ under fault liability. ( 13 ) SINCE Ex. A. 4 charge sheet shows that the first respondent was prosecuted for driving the tractor without having a valid driving licence and since first respondent did not produce his driving licence, and since the second respondent while entrusting the tractor to the first respondent did not take care to verify whether he has a valid driving liicence or not, and did not also come into the witness box to state that he has taken all the necessary precautions and took steps to entrust the vehicle to a person who has a valid driving licence, since as per as per Ex. B. 2, third respondent would not be liable to pay compensation if the driver of the offending vehicle does, not hold a valid driving licence, third respondent is not liable to pay the compensation payable to the appellants. The point is answered accordingly. 15. In the result, the appeal is allowed in part and an award is passed for Rs. 25,000/- in favour of appellants 2 and 3 with interest at 9% per annum from this day up to the date of deposit into Court against the second respondent only with proportionate costs in the Tribunal. Claim against the third respondent is dismissed without costs. From out: of the said amount, each of the appellants 2 and 3 are entitled to Rs. 12,500/- and interest thereon. Parties are directed to bear their own costs in this appeal. - .