Research › Search › Judgment

Tripura High Court · body

2016 DIGILAW 53 (TRI)

Suradhani Nath v. Gouranga Dey

2016-02-25

DEEPAK GUPTA

body2016
ORDER : 1. This appeal was originally filed by Shri Sunil Nath, the claimant. The claimant had filed a petition under Section 166 of the Motor Vehicles Act claiming that he received injuries in a Motor Vehicle accident. Due to the injuries his left arm was amputated and it was claimed that he could not drive and his loss of income was 100%. A disability certificate was issued showing the loss of earning at 80%. This disability certificate was issued for a period of 5 years as is the practice in the State of Tripura. 2. The learned Tribunal assessed the loss of earning only for 5 years and awarded Rs.4,80,000/- under this head. Another sum of Rs.20,000/- was awarded for medical expenses. Aggrieved by this award Shri Sunil Nath filed the appeal. Unfortunately during the pendency of the appeal Sunil Nath died and now the appeal is being prosecuted by his widow and children. 3. The principle of actio personalis moritur cum persona is a principle applicable to personal injury cases. The literal meaning of this Latin phrase is that an action for personal injuries dies with the person injured. It is contended on behalf of the respondents that the legal representatives cannot be permitted to continue this action on behalf of the deceased and are not entitled to any compensation. On the other hand, on behalf of the legal representatives it is contended that they are entitled to claim the full compensation payable to the injured who is now dead. No doubt, as per this principle, an action for injuries whether physical or otherwise does not survive if the person injured dies. However, Section 306 of the Indian Succession Act saves the right even in such cases to a limited extent. Section 306 of the said Act reads as follows: “306. Demands and rights of action of, or against decease survive to and against executor or administrator. However, Section 306 of the Indian Succession Act saves the right even in such cases to a limited extent. Section 306 of the said Act reads as follows: “306. Demands and rights of action of, or against decease survive to and against executor or administrator. 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 decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.” 4. A bare perusal of the aforesaid provision shows that all demands and rights whatsoever existing in favour or against a person at the time of his death survive to his executors, administrators and heirs. However, an exception has been carved out, that actions for defamation, assault as defined in I.P.C. or other personal injuries not causing death of a party do not survive. Loss to the estate suffered by his legal heirs is not covered under the exception to this action and therefore any loss to the estate can be recovered by the legal heirs. Section 306 has modified the principle of “actio personalis moritur cum persona” to this limited extent and the legal heirs/representatives of injured can continue an action initiated by an injured person in respect to the loss to the estate. 5. A Division Bench of the High Court of Himachal Pradesh in Narinder Kaur and others vs. 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 action 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 action 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 Geopalankutty Nair, 1986 ACJ 440 (SC) and M. Veerapa 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.” 6. As Judge of the Himachal Pradesh High Court I have taken the same view in Ram Ashari and others vs. H.R.T.C. and another, (2005) 4 ACC 379, wherein it was held as follows: “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. 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 Full Bench of the Madhya Pradesh High Court in Bhagwati Bai and another vs. Bablu and others, 2007 ACJ 682 , has taken an identical view in the matter. The Full Bench after considering the entire law on the subject held as follows: “15. In the result, we are of the considered opinion that a claim for personal injury filed under Section 166 of the Motor Vehicle Act, 1988 would abate on the death of the claimant and would not survive to his legal representatives except as regards the claim for pecuniary loss to the estate of the claimant......” It is, therefore, obvious that the legal representatives of the deceased can continue the action but only in respect of pecuniary loss to the estate of the claimant. 8. Legal representatives have a right to be substituted insofar as the amount for which decree or award has been passed, but they cannot claim enhancement for amount of non-pecuniary losses, such as pain and suffering etc. Therefore, the claimants can only claim compensation with regard to the loss to the estate. 9. As far as the present case is concerned the right to get compensation for pain and suffering, compensation for future discomfort and loss of amenities of life, compensation for future earnings are all losses which were personal to the injured and they cannot be inherited by the legal heirs of the injured. However, what can be inherited by the legal heirs of the injured is the right to recover the amounts which may have been spent on the treatment or the actual loss of income which may have taken place prior to the death of the deceased because that is loss to the estate which can be inherited by the legal heirs. 10. 10. As far as the present case is concerned, the learned Tribunal found that the deceased was admitted in hospital on 05.08.2010 and remained admitted till 07.09.2010. During this period his arm was amputated and plastic surgery was done. Therefore, the claimant was in hospital for 33 days. During this period he would have required attendants round the clock. 11. The accident took place in the year 2010. Even if the cost of one attendant is taken at Rs.250/- per day, the cost of two attendants works out to Rs.500/- per day and, for 32 days it works out to Rs.16,000/-. The claimants have been awarded Rs.20,000/- for medical expenses which appears to be reasonable. However, the claimant in my view would also be entitled to conveyance expenses which would amount to Rs.5,000/-. 12. The insurance company had already paid the amount of Rs.5,00,000/- with which it was fastened liability. The only additional amounts which can be awarded are for attendant charges and conveyance work out to Rs.21,000/-. On this amount the claimant shall also be entitled to interest @ 9% per annum from the date of filing of the claim petition till deposit of the amount. 13. This entire amount shall be paid to the widow of the deceased. On the amount being deposited the Registrar General may release the entire amount alongwith interest in favour of Smt Suradhani Nath, by remitting it to her personal bank account, details whereof alongwith photocopy of the first page of the passbook be filed in the Registry of this Court within 2(two) weeks from today. 14. The appeal stands disposed of in the aforesaid terms. 15. Send down the LRCs forthwith.