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2008 DIGILAW 3363 (MAD)

Baby & Others v. K. Venugopal & Others

2008-09-12

S.PALANIVELU

body2008
Judgment :- On 25.07.1991, at about 9.15 pm, while one P.T. Rajan was driving his motor-cycle bearing Registration No.TAR 9129, in which the injured claimant since died by name, Varadarajan was travelling as pillion rider, a lorry bearing Registration No.TC 5779 driven by its driver, the 1st respondent herein in a rash and negligent manner came from the opposite direction and dashed against the motor-cycle by means of which, the said Varadarajan sustained fractures and other injuries. The lorry driver fled away from the scene. From 25.07.1991 till 11.08.1991, the said Varadarajan was taking treatment in K.G. Hospital, Coimbatore and has undergone surgeries. He was earning a sum of Rs. 3,000/- per month by running a Textile shop under the name and style M/s.Gopinath Textile Ancilleries and was also doing agricultural work. Hence, he claimed a sum of Rs.5,00,000/- as compensation. 2. During the pendency of the claim petition, the said Varadarajan died on 010. 1994 and hence his wife, daughter and mother continued to contest the claim petition filed by him. 3. In the counter filed by the 3rd respondent Insurance Company, it is stated that the accident did not take place due to the rash and negligent driving of the lorry driver and that the person, who drove the motor-cycle was at fault. It is further stated that the Insurance Company which insured the motor-cycle ought to have been impleaded as party to the proceedings. They contended that the compensation claimed is excessive and hence, prayed for dismissal of the claim petition. 4. In the additional counter filed by the 3rd respondent Insurance Company, it is stated that since the original claimant died after a long time, there is no nexus between the injuries sustained by him and his death. According to them, the lorry driver did not possess valid licence at the time of accident and hence, prayed for dismissal of the claim petition. .5. The death of the original claimant by name, Varadarajan in another accident during the pendency of the claim petition is not in dispute. The Tribunal after considering the oral evidence on record has allowed only a sum of Rs.8,876/- as compensation available to the legal heirs of the deceased claimant. In fact, the right to get compensation for the personal suffering of the deceased claimant could not be inherited by his legal representatives. The Tribunal after considering the oral evidence on record has allowed only a sum of Rs.8,876/- as compensation available to the legal heirs of the deceased claimant. In fact, the right to get compensation for the personal suffering of the deceased claimant could not be inherited by his legal representatives. The principle actio personalis moritur cum persona will apply in this case. The action to be taken by the claimant for his personal suffering will die with him. As far as this case is concerned, the question to be answered is whether the claimants are entitled for compensation towards loss of estate in view of death of the injured claimant. .6. In this connection, a Division Bench of this court has formulated guidelines with regard to the availability of benefits towards loss of estate to the legal representatives of the deceased. When a claimant dies during the pendency of the claim petition, whether his legal heirs are entitled to get compensation towards loss of estate of the original claimant is the crux of the principle. The operative portion of the judgment reported in 1996 (1) L.W. 491 (M.Selvarajan and others vs. C. Polycarp Pancharathnam, Thiruppathi Mudaliar, United India Insurance Co. Ltd.,) goes thus : ."10. ... The injured at that time was aged 59 years, retired Tahsildar working in a private company drawing a salary of Rs.1,400/- per month. He has claimed Rs.2,00,000/-. Since the sole claimant had died during the pendency of this appeal and his legal representatives have confined their claim towards the loss to the estate at Rs.70,000/-, we hold a total sum of Rs.40,000/-with 12% interest will be the proper and just compensation. The said amount should be decided equally by all the appellants. While granting this sum of Rs.40,000/-, we have taken into consideration the salary, the period of his earning capacity and also loss to the estate of the original claimant." 7. In the above said decision, the learned Judges have taken into consideration the salary, the period of earning capacity and also loss to the estate of the original claimant and accordingly awarded a sum of Rs. 40,000/-as compensation to the legal representatives. .8. Following the said principles, it has to be held in the case on hand that the legal representatives of the deceased claimant are entitled for loss of income sustained by the deceased and also loss of estate. 40,000/-as compensation to the legal representatives. .8. Following the said principles, it has to be held in the case on hand that the legal representatives of the deceased claimant are entitled for loss of income sustained by the deceased and also loss of estate. It is in evidence that the deceased claimant was earning a sum of Rs.3000/- per month by doing Textile business and agricultural work. The accident took place on 25.07.1991 and he was inpatient in the Hospital till 11.08.1991. He died on 010. 1994. In this connection, it may be comprehended that he could have been rendered jobless or he might have been disabled from attending to the routine avocation for about 10 months and therefore, this court feels it appropriate to award a sum of Rs.30,000/- under the head loss of income. In view of extra nourishment and transportation expenses, a sum of Rs.5,000/-each, is awarded under these heads. The award of Rs.8,876/-awarded by the Tribunal towards medical expenses is rounded to Rs.8,900/-. In all, the award of the Tribunal is enhanced and the appellants/claimants are entitled to a sum of Rs.48,900/- as total compensation. 9. The third respondent Insurance Company is directed to pay the enhanced compensation to the appellants/claimants along with interest for the same at the rate of 7.5% per annum from the date of the claim petition till the date of realisation within a period of eight (8) weeks from the date of this order. Out of the total compensation awarded to the appellants/claimants, the first appellant, wife of the deceased claimant is entitled to get Rs.28,900/-; the second and third appellants, minor son and mother of the deceased claimant are each entitled to get a sum of Rs.10,000/-as compensation. The compensation available to the minor second appellant is directed to be deposited in any one of the Nationalised Banks till he attains majority and the first appellant is permitted to withdraw the interest accrued from it once in three months. The Civil Miscellaneous Appeal is allowed on the above terms. No costs.