JUDGMENT & ORDER : This is an appeal, by the legal heir of the person who suffered grievous injury, from the judgment and order dated 04.09.2014 delivered in T.S.(MAC) 184 of 2013 whereby the claim filed under Section 166 of the Motor Vehicle Act being T.S.(MAC) 184 of 2013 has been dismissed on the ground that since the injured has expired having a different cause of death the claim by the husband cannot be maintained. The tribunal has referred a decision of Madra High Court in Ayesha Firm vs. Santhi [judgment dated 03.04.2006 in CMA (MD) No.826 of 1997]. In paragraph 9 & 10 of the said decision, it has observed as under: “(9) So far as Madras High Court is concerned, it appears that this position of law has been accepted in several decisions, such as 1974 ACJ 362 (C.P. KANDASWAMY v. MARIAPPA STORES). A learned single Judge in a decision reported in 2000 T.L.N.J 370 (THE MANAGING DIRECTOR, PANDIAN ROADWAYS CORPORATION LTD., MADURAI v. S.RAJALAKSHMI AND OTHERS), after referring to the aforesaid decision and decisions of the Supreme Court in (1986 )I SCC 118 (Melapurath Sunkunni Ezhuthassan v. Thekittil Gopalankutti Nair), (1988) I S.C.C. 556 (M.Veerappa v. Elelyn Segulira) and the decision of Justice K.Venkataswami, as his Lordship then was, in C.R.P. No. 2307 of 1988 (Pushpam v. Nirmala and another) decided on 3.1.1991, has concluded that in such cases, the legal representatives would be entitled only to be compensated as regards the actual expenses incurred by the injured/claimant towards his treatment". But in this case, the claimant is not entitled to even any amount towards compensation under the head "Actual expenses incurred by the injured" because the injured has not filed any claim petition, during his life time for the injury, he had sustained in the accident. Under such circumstances, the claimant in M.C.O.P.No.143/1995 on the file of the Motor Accidents Claims Tribunal (Sub Court) Thanjavur is not entitled to any compensation under the claim petition. Hence, I hold on the point that the award passed in M.C.O.P.No.143/1995 is to be dismissed for the reasons stated in the memorandum of appeal in C.M.A.No.826 of 1997. The point is answered accordingly. 10. Hence, I hold on the point that the award passed in M.C.O.P.No.143/1995 is to be dismissed for the reasons stated in the memorandum of appeal in C.M.A.No.826 of 1997. The point is answered accordingly. 10. In the result, this appeal is allowed and the award passed in M.C.O.P.No.143/1995 is set aside and M.C.O.P.No.143 of 1995 is dismissed as there is no cause of action survive for the claimant to prefer any claim petition, for the injury sustained by the deceased, who has not filed the claim petition. No costs.” The tribunal following the ratio laid down in the Madras High Court case has dismissed the claim inasmuch as the claim was not filed by the injured herself during her life-time. 2. Mr. A. Nandi, learned counsel appearing for the appellant has submitted that over an identical issue this court has observed in R. Renju vs. Kanu Das [judgment dated 11.04.2014 delivered in MAC APP No.11 of 2002] as under: “8. 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.” 9. 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. 10. 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.” 11. I have taken the same view in Ram Ashari and others vs. H.R.T.C. and another, [IV (2005) 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. 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.” 12. 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.” 12. 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.” It has been further observed in R. Renju (supra), as under: “With regard to the other issues, I hold that the claimants shall be entitled to Rs.1,44,952/- as loss of income, Rs.10,000/- for expenditure on treatment purpose, Rs.40,000/- as attendant charges, Rs.25,000/- for medical expenses, special diet etc. and Rs.50,000/- for future medical treatment as enhanced by this Court earlier. However, the legal heirs cannot get any enhancement for non-pecuniary losses as they do not form loss to the estate. Therefore, the award for pain and suffering will remain at Rs.40,000/- and no amount can be awarded for loss of amenities and future discomfort. Accordingly, the total compensation works out to Rs. (1,44,952 + 10,000 + 25,000 + 50,000 + 40,000) = Rs.3,09,952/- (rupees three lakh nine thousand nine hundred and fifty two).” 3. Mr. Nanadi, learned counsel appearing for the appellant has contended that in Melepurath Sankunni Ezhuthassan vs. Thekittil Gopalankutty Nair reported in AIR 1986 SC 411 , it has been observed as under: “8. (1,44,952 + 10,000 + 25,000 + 50,000 + 40,000) = Rs.3,09,952/- (rupees three lakh nine thousand nine hundred and fifty two).” 3. Mr. Nanadi, learned counsel appearing for the appellant has contended that in Melepurath Sankunni Ezhuthassan vs. Thekittil Gopalankutty Nair reported in AIR 1986 SC 411 , it has been observed as under: “8. Section 306 further speaks only of executors and administrators but on principle the same position must necessarily prevail in the case of other legal representatives, for such legal representatives cannot in law be in better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also. 9. The position, therefore, is that had the Appellant died during the pendency of his suit, the suit would have abated. Had he died during the pendency of the appeal filed by him in the District Court, the appeal would have equally abated because his suit had been dismissed by the Trial Court. Had he, however, died during the pendency of the second appeal filed by the respondent in the High Court, the appeal would not have abated because he had succeeded in the first appeal and his suit had been decreed. As, however, the High Court allowed the second appeal and dismissed the suit, the present Appeal by Special Leave must abate because what the Appellant was seeking in this Appeal was to enforce his right to sue for damages for defamation. This right did not survive his death and accordingly the Appeal abated automatically on his death and his legal representatives acquired no right in law to be brought on the record in his place and stead.” 4. Before we embark on to decided the impact of legal principle of ‘actio personalis moritur cum persona’ let us examine the basic facts based on which the claim for damages have been raised by the appellant, the husband of the deceased. 5. In a road traffic accident occurred on 09.11 2011, one Sampa Das Chowdhury received serious injury which is medically termed as ‘crush injury on right leg, and lower limb’ for rash and negligent driving of the offending vehicle bearing registration No. TR-01-C-1090, Water Tanker. Thereafter for better management she was initially admitted in the GBP Hospital at Agartala on 09.11.2011 and she was treated there till 10.11.2011. Thereafter for better management she was initially admitted in the GBP Hospital at Agartala on 09.11.2011 and she was treated there till 10.11.2011. On assessment of her condition, she was referred to SSKM Hospital in Kolkata. But she could not be admitted in the SSKM Hospital, but she was admitted in the AMRI Hospital. At that time she has undergone major surgical operation incurring a sum of Rs.5,00,000/-. But the hospital was almost burned down in a fire accident which had taken place on 09.12.2011. At that time the injured was also being treated in that hospital. She died out of the fatal burn injuries received in the said fire incident. The cause of death was obviously not the injury that she suffered in the motor vehicle accident. After her death the appellant raised the claim and the respondents herein opposed such claim seriously and finally the claim was dismissed having observed that the claimant is not entitled to any compensation for injuries sustained by his wife since the wife of the petitioner did not file any claim petition during her lifetime, as stated. 6. Mr. A. Nandi, learned counsel appearing for the appellant has submitted that in view of Section 306 of the Indian Succession Act, 1925 which curves out an exceptions to the said legal principles of ‘actio personalis moritur cum persona’ by providing that all demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease (death), survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, 1860 (45 of 1860) 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. 7. 7. In M. Beerappa vs. Evelyn Sequeira and Others reported in AIR 1988 SC 506 , the apex court while interpreting Section 306 has observed that: “Section 306 speaks only of executors and administrators and order XXII Rule 3 Civil Procedure Code sets out the rights of legal representatives to continue the proceedings instituted earlier by a deceased plaintiff if the right to sue survives, the courts have taken the view that the legal representatives stand on par with executors and administrators regarding their right to seek impleadment in order to continue the suit.” The apex court has reproduced the following passage from Melepurath Sankunni’s case ( AIR 1986 SC 411 ): “Section 306 further speaks only of executors and administrators but on principle the same position must necessarily prevail in the case of other legal representatives, for such legal representatives cannot in law be in better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also.” It has been further observed in M. Beerappa (supra) that there is unanimity of views among many High Courts in the country regarding the interpretation to be given to the words “other personal injuries not causing the death of the party”, occurring in Section 306 of the Indian Succession Act and that the contrary view taken by the Calcutta & Rangoon High Courts in the solitary cases referred to above has not commended itself for acceptance to any of the other High Courts. The preponderant view taken by several High Courts has found acceptance with the apex court in its decision in Melepurath Sankunni Exhuthassan’s case. It is on account of these factors disapproval was expressed. 8. In M. Beerappa (supra), the apex court has again observed as under: “13. What now falls for consideration is whether the suit filed by the plaintiff was founded on torts or on contract. Mr. Kaushik, learned counsel for the appellant, in all fairness, did not contend that the words "other personal injuries" must be read narrowly-i.e., ejusdem generis only with assault and other physical injuries not resulting in the death of the party. His argument however was that the plaintiff's suit is wholly founded on torts because it related to the damages sought for by the plaintiff for alleged loss of reputation, mental agony, worry etc. His argument however was that the plaintiff's suit is wholly founded on torts because it related to the damages sought for by the plaintiff for alleged loss of reputation, mental agony, worry etc. and hence the suit is based only on the personal injuries of the plaintiff and it inevitably abated on his death. On the other hand, Mr. Khanduja, counsel for the respondents, contended that the suit is not really founded on torts but is founded on contract and there had been a breach of the conditions of engagement by the appeal being withdrawn contrary to instructions, not to speak of the delay in the filing of the appeal. By reason of the breach of the conditions of engagement, the plaintiff had been evicted and put to loss and, therefore, the suit for damages really pertained to the loss suffered by the estate of the plaintiff and the said loss could well be claimed by the legal representatives after the death of the plaintiff. It was further urged by him that the suit amount consisted of claims under different heads and that while Rs.4,500 had been claimed by way of compensation for the monetary loss sustained by the plaintiff's estate, the claims relating to Rs.1,500 under three different heads were also amounts due to the estate as expenditure suffered by it and hence it was not open to the appellant to contend that the suit was only for personal injuries sustained by the plaintiff and therefore it abated on his death. 14. In view of the fact that this aspect of the matter has not been considered by the Trial Court or the High Court, we do not think it proper to express any opinion one way or the other as to whether the suit cause of action is founded on torts or on contract. Since a copy of the plaint has not been furnished by either party we can only refer to the summary of the plaint contained in the order of the District Munsif. The relevant portion reads as follows. Since a copy of the plaint has not been furnished by either party we can only refer to the summary of the plaint contained in the order of the District Munsif. The relevant portion reads as follows. "at a later stage, he filed the petition and withdrew it; the Special Leave Petition was dismissed as withdrawn; defendant did not inform the plaintiff well in time, plaintiff got suspicion over the attitude of the defendant, he engaged another counsel in the Supreme Court and obtained certified copies of the petitioner's application and order of the Supreme Court on the application filed by the defendant; even after several requests, defendant has not returned the file; defendant incurred Rs.500 to obtain certified copies; on account of the misconduct of the defendant, plaintiff has suffered untold mental worry, agony, and loss of reputation; plaintiff was evicted from the shop premises situated at Hampankatta; he has not been able to secure a similar place for continuing his business; the defendant is liable to pay the plaintiff an amount of Rs.500 being the loss incurred by him to engage the service of another advocate to obtain the certified copies of the petition and application filed by the defendant in the Supreme Court; that apart the defendant is liable to compensate the plaintiff to the extent of another sum of Rs.500 as the defendant has not renurned the records that were entrusted to the defendant by the plaintiff and for the charges incurred by the plaintiff in sending telegrams, or correspondences or for trunk phone calls; for want of suitable place for continuing the business of the plaintiff, the plaintiff has suffered damage or loss of over Rs.20,000 but the plaintiff restricts the claim to Rs.4,500 in this behalf. The plaintiff is entitled to be compensated by the defendant to the extent of Rs.6,000 as stated above, viz. Rs.500, Rs.500, Rs.500, Rs.4,500 for loss of damage sustained by the plaintiff and the defendant is liable to compensate the plaintiff in this respect as he has not done his duty which he owed towards the plaintiff". 15. The plaintiff is entitled to be compensated by the defendant to the extent of Rs.6,000 as stated above, viz. Rs.500, Rs.500, Rs.500, Rs.4,500 for loss of damage sustained by the plaintiff and the defendant is liable to compensate the plaintiff in this respect as he has not done his duty which he owed towards the plaintiff". 15. Having regard to the nature of the claim we are not able to comprehend how without any enquiry and recording of evidence the Trial Court and the High Court have proceeded on the basis that the suit claim is based only on tortious liability though the two Courts have reached different conclusions about the abatement of the suit. The learned counsel for the respondent placed reliance upon the summary of the averments in the plaint set out above and argued that the plaintiff had suffered loss of over Rs.20,000 due to the closure of the business and hence the restricted claim of Rs.4,500 is really towards loss suffered by the estate and not a claim made on the basis of the loss of reputation, mental agony, worry etc. suffered by the plaintiff. He further stated that the claim of Rs.1,500 under three heads of Rs.500 each also related to the loss suffered by the estate of the deceased and hence the suit has to proceed for the entire suit claim. Since no discussion has been made and no finding has been rendered on this question and since we can not render any finding on the basis of the materials on record whether the suit is based on the personal injuries sustained by the plaintiff or upon the loss suffered by the estate, we think the proper course would be to allow the judgment under appeal to stand even though we do not approve the reasoning of the High Court and dismiss the appeal. We leave the matter open for the Trial Court to decide whether the suit is founded entirely on torts or on contract or partly on torts and partly on contract and deal with the matter according to law. If the entire suit claim is founded on torts the suit would undoubtedly abate. If the action is founded partly on torts and partly on contract then such part of the claim as relates to torts would stand abated and the other part would survive. If the entire suit claim is founded on torts the suit would undoubtedly abate. If the action is founded partly on torts and partly on contract then such part of the claim as relates to torts would stand abated and the other part would survive. If the suit claim is founded entirely on contract then the suit has to proceed to trial in its entirety and be adjudicated upon.” So severability of reliefs is permitted. 9. ‘Actio personalis moritur cum persona’ has been held inapplicable only in those cases where the injury caused to the deceased person has tangibly affected his estate or has caused an accretion to the estate of the wrong doer as well as in those cases where the suit for damages for defamation, assault or other personal injuries sustained by the plaintiff had resulted in, in favour of the said person, inasmuch as in such a case, the cause of action is merged and the decretal debt forms part of the estate. The appeal from the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff which the legal representatives are entitled to uphold and defend. But in the decision in R. Renju (supra), this court has considered the decision of HP High Court in Ram Ashari (supra) and MP High Court in Bhagwati Bai (supra). In both the cases it has been observed that: the claim for personal injury 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. 10. By way of extension of this proposition it has been further held in R. Renju (supra) that the claim for pecuniary loss to the estate of the claimant would survive. Thus the legal heir would be competent to represent the injured who died during pendency or even before filing the claim. In this regard, the tribunal has committed a serious error of law despite the fact that there is divergent opinions between the various high courts. But when the pecuniary loss regarding the medical expenses is a real loss of estate the appellant had the right to claim-limited to that extent. From the judgment dated 04.09.2014, this court does not find any attempt to assess such loss. But when the pecuniary loss regarding the medical expenses is a real loss of estate the appellant had the right to claim-limited to that extent. From the judgment dated 04.09.2014, this court does not find any attempt to assess such loss. This court might have remanded the matter to the tribunal but considering that the evidence has been recorded and the evidence has been placed before this court, it would be proper in the interest of speedy justice that this court takes the task of assessment. 11. Mr. N. Majumder, learned counsel appearing for the respondents however has submitted that there is no infirmity in the judgment and as such no interference is called for. 12. Having considered in terms of the above proposition of law this court is of the opinion that on the basis of the documents filed before this court the loss to the estate of the injured as medical expenses may be accounted for as compensation. 13. There is no dispute that the injured was referred by the Standing Medical Board of GBP Hospital on 10.11.2011 as such the expenditure may be divided into two parts, one being on or before 10.11.2011 and the other being after 10.11.2011. From the cash memos issued before 10.11.2011, the expenditure for purchasing medicine comes to Rs.5964.92/-, rounded at 6000/-. Thereafter in Kolkata, a sum of Rs.1,42,487/- had been paid to AMRI Hospitals. Thus the total monitory loss account of medicine and hospital charges as incurred comes to Rs.1,48,487,46/-. The transportation and miscellaneous charge with air fare be added at Rs.30,000/-. Thus the total compensation would come to Rs.1,78,487.46/- rounded at Rs.1,78,00,000/-. The said amount shall carry interest @ 6% per annum from the date of filing the claim petition i.e. 04.05.2014 till the payment is made by the respondent No.2. The respondent No.2 shall pay within a period of 2(two) months from today. It is to be noted that all the vouchers which are relating to burn and death furnishing have been discarded by this court for obvious reason as the death cannot be related to the said accident. In terms of the above, the impugned judgment dated 04.09.2014 is set aside. The appeal is allowed to the extent as stated. There shall be no order as to costs.