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2008 DIGILAW 4121 (MAD)

T. M. Kaliappan & Others v. P. K. Murthy

2008-11-10

V.PERIYA KARUPPIAH

body2008
Judgment :- This appeal is directed against the award passed by the lower Court in M.C.O.P. No: 47 of 2002 [M.C.O.P. No: 114 of 2000 on the file of the Sub Judge, Gobichettipalayam] by the claimants for enhancement of compensation. The case of the parties before the lower Court are briefly stated as follows: "(i) On 09.08.1999 at 8.00 a.m. the 1st claimant and his sons father-in-law were travelling in a TVS-50 bearing registration No: TN-36 B-0887. The 1st claimant was travelling as a pillion rider. When the TVS 50 was coming from north to south in the Coimbatore – Mysore Highway, the bus belonging to the 2nd respondent bearing registration No: TN-33 0701 driven in a rash and negligent manner by its driver dashed against the TVS 50. The 1st claimant fell down and the right side wheel of the bus ran over the right leg of the 1st claimant. He was hospitalised at Sathyamangalam Government Hospital and Coimbatore Ganga Hospital and various surgeries were performed on him. The 1st claimant suffered a permanent disbaility. Before the accident he was doing agricultural work in about 12 acre land. He spent a huge sum towards his treatment. On 011. 2001, the 1s claimant died leaving behind claimants 2 to 5 as his legal representatives. Hence, the respondents were liable to compensate for the loss caused due to his death and for loss of love and affection at a sum of Rs.3,00,000/- with interest. (ii) The 2nd respondent filed a counter affidavit stating that the allegations are all false. The accident occurred due to the rash and negligent driving of the TVS 50. It was not caused due to the mistake of the respondents. The genuinity of the age, business, income and the nature of injuries suffered by the 1st claimant are not proved. The compensation claimed is very much on the higher side. Since, the cause of the accident is the person who drove the TVS 50 and in the absence of the claimant not including the owner, driver and insurer of the TVS 50, this claim petition itself is not maintainable and hence, the claim petition may be rejected. " 2. The compensation claimed is very much on the higher side. Since, the cause of the accident is the person who drove the TVS 50 and in the absence of the claimant not including the owner, driver and insurer of the TVS 50, this claim petition itself is not maintainable and hence, the claim petition may be rejected. " 2. The lower Court, after going through all the materials made available before it, including oral and documentary evidence, had awarded a sum of Rs.60,000/- towards compensation for the loss of life of the 1st petitioner, who died during the pendency of the claim petition, because of the injuries sustained by him in the accident, against a claim of Rs.3,00,000/-. The appellants are the claimants 2 to 5 before the lower Court and the legal representatives of the deceased 1st claimant. 3. Heard the arguments advanced by both the counsel appearing for either side. 4. The learned counsel for the appellants / claimants would submit in his argument that the lower Court had, without going through the legal aspects and without calculating actual compensation for the loss of life of the deceased / 1st claimant, awarded a sum of Rs.60,000/- towards pain and suffering for the fractures suffered by the 1st claimant and had directed to pay the same to claimants 2 to 5. He would further submit that the lower Court had not considered that the claimants 2 to 5 were the legal representatives of the deceased / 1st claimant who died in consequence of the injuries sustained by him in the accident which occurred on 09.08.1999. He would further submit that the claimants 2 to 5 who are the legal representatives of the deceased 1st claimant are entitled for the expenses incurred by the 1st claimant for treating his injuries and also the statutory liability for the loss of life of the deceased / 1st claimant. He would cite a judgment of our Apex Court reported in 2007 (10) S.C.C. 643 [Smt. Manjuri Bera vs. Oriental Insurance Co. Ltd. and antoher]. He would add that as per the judgment of our Apex Court the compensation of Rs.50,000/- under "No Fault Liability" which is a statutory liability of the respondent will become the estate of the deceased and the said sum along with the medical expenses could have been awarded by the lower Court. Ltd. and antoher]. He would add that as per the judgment of our Apex Court the compensation of Rs.50,000/- under "No Fault Liability" which is a statutory liability of the respondent will become the estate of the deceased and the said sum along with the medical expenses could have been awarded by the lower Court. According to the learned counsel, when it is not done so, in this case, the said order is not in accordance with law and therefore, he would insist this Court to revise the quantum of compensation and to allow the appeal. 5. The learned counsel for the 2nd respondent would submit in his argument that the 1st claimant had met with an accident and had sustained grievous injuries and he had also undergone treatment for those injuries and for the disability caused thereon he had filed the claim petition. During the pendency of the same, he died and claimants 2 to 5 were ordered to be impleaded as Legal Representatives of the deceased 1st claimant. He would further submit that the claimants 2 to 5, being the L.Rs. of the deceased 1st claimant, are not entitled to any amount towards pain and suffering and for permanent disability caused to the 1st claimant due to the injuries sustained by him in the accident since those amounts were spent by the 1st claimant purely for his personal inconvenience and it would not become the estate of the deceased / 1st claimant. He would further insist in his argument that the maxim namely "actio personalis moritur cum persona" would squarely apply to the case on hand. The personal claim of the 1st claimant dies with him and, therefore, the award of compensation at Rs.60,000/- for pain and suffering and disability sustained by the 1st claimant is not valid in law. He would request the Court to modify the award passed by the lower Court in accordance with law. 6. I have considered the arguments advanced by both sides. The case of the claimants are that the 1st claimant met with an accident on 09.08.1989 at 8.00 a.m. and sustained grievous injuries; that the accident occurred due to the rash and negligent driving of the 1st respondent, who is the driver of the 2nd respondent; that the 1st claimant underwent surgeries and had spent a huge sum towards medical expenses. There is no dispute with regard to cause of the death of the 1st claimant as it is admitted that his health condition deteriorated due to the injuries sustained and the permanent disability caused to him in the accident. The lower Court had passed an award for a sum of Rs.60,000/-which was calculated for pain and suffering and the permanent disability incurred by the deceased 1st claimant. It is settled law that no legal representative is entitled for the deceased person’s personal gains or personal damages. This is explained by the maxim "actio personalis moritur cum persona ". Therefore, the awarding of compensation for pain and suffering and permanent disability of the deceased is not in accordance with law. The lower Court had not considered the medical expenses incurred by the 1st claimant for his treatment, which was evidenced by Exs. A.10 to A.15. On a careful calculation of the said expenses evidenced by Exs. A.10 to A.15, it comes to a sum of Rs.94,900/-. There was no dispute that the said amount was not spent for the treatment of the 1st claimant. Apart from that the deceased 1st claimant would have incurred expenses towards transport and also for having an attendant. On that category, he is entitled for a sum of Rs.5,000/- towards attendant charges and a sum of Rs.7,260/- towards transport expenses. 7. In the judgment of our Supreme Court reported in 2007 (10) S.C.C. 643 [Smt. Manjuri Bera vs. Oriental Insurance Co. Ltd.], it has been held as follows: “20. In my opinion, "no-fault liability", envisaged in Section 140 of the said Act, is distinguishable from the rule of "Strict liability". In the former, the compensation amount is fixed. It is Rs.50,000/- in cases of death [Section 140 (2)]. It is a statutory liability. It is an amount, which can be deducted from the final amount awarded by the Tribunal. Since, the amount is a fixed amount / crystallized amount, the same has to be considered as part of the estate of the deceased. In the present case, the deceased was an earning member. The statutory compensation could constitute part of his estate. His legal representative, namely, his daughter has inherited is estate. She was entitled to inherit his estate. In the circumstances, she was entitled to receive compensation under "no-fault liability" in terms of Section 140 of the said Act. In the present case, the deceased was an earning member. The statutory compensation could constitute part of his estate. His legal representative, namely, his daughter has inherited is estate. She was entitled to inherit his estate. In the circumstances, she was entitled to receive compensation under "no-fault liability" in terms of Section 140 of the said Act. That section is a Code by itself within the Motor Vehicles Act, 1988. " On a careful understanding of the above said judgment of our Apex Court, we could see that the “No Fault Liability” payable for a deceased person under Section 140 of the said Act, which is Rs.50,000/- in case of death is a statutory liability. Such statutory liability which is fixed or crystallized should have been considered as part of the estate of the deceased. Therefore, the said sum of Rs.50,000/- arising under “No Fault Liability” and the expenses incurred for medical treatment and other ancillary expenses towards medical treatment should have been considered as the estate of the deceased 1st claimant. Therefore, the legal representatives who were directed by the lower Court to receive the compensation for the permanent disability of the deceased person, are entitled to inherit the expenses incurred by the deceased for his treatment. The compensation for “No Fault Liability” is akin to the estate of the deceased person. Therefore, a sum of Rs.50,000/- (No Fault Liability), a sum of Rs.7,260/- (transport charges), a sum of Rs.5,000/- (attendant charges) and a sum of Rs.94,900/- (medical expenses) – totally a sum of Rs.1,57,160/- which are deemed to be estate of the deceased 1st claimant are liable to be inherited by the claimants 2 to 5. Accordingly, the appellants should have been awarded a sum of Rs.1,57,160/-by the lower Court but, it had awarded only a sum of Rs.60,000/-on an unsustainable head of permanent disability and pain and suffering. Therefore, it is liable to be interfered with. Accordingly, the appeal is allowed in part and a sum of Rs. 1,57,160/-shall be awarded to the appellants. In other words, an enhanced compensation of a sum of Rs. 97,160/-is ordered in this appeal. The appellants are entitled to the said enhanced compensation with interest at 7.5% from the date of petition till the date of payment. There shall be no order as to the costs.