JUDGMENT The National Insurance Company is in appeal against award dated 25.09.2017 passed by the Motor Accident Claims Tribunal, Doda (hereinafter “the Tribunal” for short) in file No.55/Claim titled Rinkoo Devi and others v. Divisional Manager, National Insurance Company Limited and others, whereby and whereunder respondent Nos. 1 to 6 have been held entitled to compensation of Rs.14,05,000/- along with pendente lite and future simple interest @ 7.5% per annum. 2. The impugned award has been assailed by the appellant, inter alia on the following grounds:- i) The Tribunal has failed to appreciate that there was no evidence on record to prove that there was causal connection of the injuries suffered in the motor accident with the death of the deceased and, therefore, no compensation could have been awarded to the legal representatives of the deceased. ii) The Tribunal has also failed to deal with the defense of the appellant that the offending vehicle, at the time of accident, was overloaded and, therefore, the appellant was absolved of its liability to indemnify the insured. 3. With a view to appreciate the grounds of challenge urged by the appellant, it would be necessary to briefly notice few facts relevant to the disposal of this appeal. Sudesh Kumar Sharma, now deceased was travelling in the offending vehicle on 17th September, 2009 and was going from Doda to Jammu. The offending vehicle, when reached near Assar Morh, met with an accident and fell about 300 feet down the road causing number of deaths and injuries to various passengers. The deceased also suffered multiple injuries in the accident. FIR No.18/2009 also came to be registered against the driver of the offending vehicle for causing accident due to rash and negligent driving. The deceased, who was grievously injured in the accident filed a claim petition seeking compensation from the owner, driver and insurer of the vehicle i.e. appellant herein. He claimed that he was a labourer and also doing agricultural job and earning Rs.8,000/- per month. He claimed a sum of Rs.26,00,000/- as compensation for the injuries and disablement suffered by him. The claim petition was contested by the appellant whereas respondent No. 7 (owner) and respondent No.8 (driver) chose not to appear and they were, accordingly, proceeded ex-parte by the Tribunal. On the basis of the pleadings of the contesting parties, the Tribunal framed following issues:- “1. The claim petition was contested by the appellant whereas respondent No. 7 (owner) and respondent No.8 (driver) chose not to appear and they were, accordingly, proceeded ex-parte by the Tribunal. On the basis of the pleadings of the contesting parties, the Tribunal framed following issues:- “1. Whether on 07.09.2009 the petitioner was travelling in the vehicle bearing No.JK02D/6339 from Doda to Jammu and while reaching at Assar the vehicle met with an accident due to rash and negligent driving of the driver due to which the petitioner received permanent disablement? OPP 2. If issue No.1 is proved in affirmative, what amount of compensation the petitioner is entitled to and from whom? OPP 3. Whether the offending vehicle was overloaded at the time of accident, if so, what is its effect on the claim petitioner ? OPR-1 4. Relief.” 4. With a view to discharge the burden of proof of issue Nos. 1 and 2, the deceased-Sudesh Kumar Sharma himself appeared as his own witness and also examined Shaheena Begum, Mulkh Raj, Bhagi Ram, Rinkoo Devi and Dr. Nizam Din Dar as his witnesses. During pendency of the claim petition, Sudesh Kumar Sharma died on 10.11.2013 and, accordingly, his legal representatives, the claimants herein, were brought on record and were permitted to pursue the claim petition. The Tribunal attributed the death of the injured-Sudesh Kumar Sharma to the injuries received by him in the accident and, thus, awarded a sum of Rs.14,05,000/- along with interest @ 7.5% per annum to respondent Nos. 1 to 6, in terms of the award impugned. 5. Mr. C.S.Gupta, learned counsel for the appellant-insurer, at the outset fairly states that so far as issue No.3 is concerned, the insurer- appellant having led no evidence, has failed to discharge the burden of proof. He, therefore, submits that in view of no evidence led on the issue, he is not seriously pressing the second ground of challenge. He, however, asserts that the first ground of challenge i.e. in the absence of any cogent and satisfactory evidence on record, the Tribunal could not have attributed the death of the deceased to the injuries suffered in the accident, which took place more than four years prior to his death. 6. Mr. He, however, asserts that the first ground of challenge i.e. in the absence of any cogent and satisfactory evidence on record, the Tribunal could not have attributed the death of the deceased to the injuries suffered in the accident, which took place more than four years prior to his death. 6. Mr. Gupta, learned counsel for the appellant, further argues that no autopsy on the deceased was conducted to ascertain the cause of death nor any doctor was examined to demonstrate that the death of the deceased was as a result of the injuries suffered in the accident. It is further the argument of Mr. Gupta that the time span between the date of accident and the date of death makes possibility of co-relation between the injuries received in the accident and the death of the deceased too remote to draw any inference of causal connection of the death of the deceased with the injuries suffered by him in the accident. 7. Per contra, it is vehemently contended by Mr. Vikas Sharma, representing the claimants, that given the nature of injuries suffered by the deceased in the accident, the death of the deceased was not only the probable but sure cause of his death. He, therefore, argues that the findings of the Tribunal that the death of the deceased had occurred on account of the injuries suffered by him in the accident are based on evidence and did not call for any interference by this Court. 8. Heard learned counsel for the parties and perused the record. 9. The quantum of compensation awarded is not in dispute. What, however, is disputed before this Court by the insurer is the maintainability of the claim petition by the legal heirs of the deceased and the liability of the appellant-insurer to pay compensation. Admittedly, when the claim petition was filed, it was on account of the injuries suffered by the deceased-Sudesh Kumar Sharma in the motor vehicular accident caused by rash and negligent driving of the offending vehicle by its driver. While the claim petition was pending, the original claimant died. It is also not in dispute that there is no evidence brought on record by the legal representatives of the deceased, particularly, the medical evidence to demonstrate that the death of the injured was on account of the injuries suffered in the motor vehicle accident in question. 10. While the claim petition was pending, the original claimant died. It is also not in dispute that there is no evidence brought on record by the legal representatives of the deceased, particularly, the medical evidence to demonstrate that the death of the injured was on account of the injuries suffered in the motor vehicle accident in question. 10. From the evidence on record, it is very difficult to come to any conclusion with regard to the causal connection of the death of the deceased with the injuries suffered by him in the accident. The accident took place on 07.09.2009, whereas the injured-claimant died on 10.11.2013 i.e. after more than four years. To attribute the death of the deceased to the injuries suffered four years back would be difficult, if not impossible, more so, when there is no medical evidence indicating exactly the cause of death of the deceased. 11. I have gone through the medical record, which the injured had produced along with his claim petition and find that the nature of injuries suffered by him were serious in nature. He was treated in the hospital (GMC) and was discharged after 15 days of hospitalization. He was advised to take the follow up treatment from District Hospital, Doda. The deceased in his statement recorded before the Tribunal has nowhere stated that he had not cured of his injuries and had continued to suffer therefrom. He, however, stated that because of the injuries he had been incapacitated to move properly and do any work. However, the witnesses recorded after his death have tried to improve the position by stating that he was constantly and continuously under treatment of the Govt. Medical College for the injuries and had not fully recovered. The later witnesses examined after death of the deceased also attributed death to the injuries suffered by the deceased in the motor accident. There is no hospital record to substantiate the aforesaid oral deposition of the witnesses. As is claimed, he was brought dead to the Govt. Medical College, Jammu and was not even subjected to any autopsy to ascertain the cause of his death. There is no hospital record to substantiate the aforesaid oral deposition of the witnesses. As is claimed, he was brought dead to the Govt. Medical College, Jammu and was not even subjected to any autopsy to ascertain the cause of his death. In the absence of clear and cogent evidence with regard to the death of the deceased, it was not appropriate for the Tribunal to casually return a finding that the death of the deceased was attributable to the injuries suffered by him in the motor accident in question. 12. It is true that an action for personal injuries dies with the death of the injured. It is based on a common rule actio personalis moritur cum persona. The cause of action for personal injuries being founded on tort, the injured person’s claim for damages based on such tort cannot, on the death of such person, survive for prosecution by his legal representatives. It is, thus, trite law that a claim by a person for compensation for personal injuries, pending before the claim Tribunal, does not survive, on such person’s death not caused as a consequence of personal injuries, to his legal representatives except and insofar as it pertains to loss to the estate of the deceased. The position, however, would be different, if the claim of such person for compensation has resulted in award by the Tribunal before his death and in that eventuality, the award or decree of the Claims Tribunal would be the estate of the deceased inheritable by his legal representatives on his death. In such a situation and eventuality, the legal representatives of the deceased would be entitled to seek execution of the award or contest the appeal before the appellate forum. 13. In the view I have taken, I am fortified by the judgment of the Supreme court in M.Veerappa v. Evelyn Sequira and others (1988) 1 SCC 556 . Para- 10 whereof reads thus: “10. 13. In the view I have taken, I am fortified by the judgment of the Supreme court in M.Veerappa v. Evelyn Sequira and others (1988) 1 SCC 556 . Para- 10 whereof reads thus: “10. The maxim ‘actio personalis cum moritur persona’ has been applied not only to those cases where a plaintiff dies during the pendency of a suit filed by him for damages for personal injuries sustained by him but also to cases where a plaintiff dies during the pendency of an appeal to the Appellate Court, be it the First Appellate Court or the Second Appellate Court against the dismissal of the suit by the Trial Court and/or the First Appellate Court as the case may be. This is on the footing that by reason of the dismissal of the suit by the Trial Court or the First Appellate Court as the case may be, the plaintiff stands relegated to his original position before the Trial Court. Vide the decisions in Punjab Singh v. Ramautar Singh, AIR 1920 Pat 841, Irulappa v. Madhva, AIR 1951 Mad 773 , Maniramlala v. Mt. Chatti Bai & Anr. AIR 1937 Nag 216, Baboolal v. Ram Lal, AIR 1952 Nag 408 and Melepurath Sankunni Ezhuthassan v. Thekittil Gopalankutty Nair, AIR 1986 SC 411 . In Palaniappa Chettiar v. Rajah of Ramnad, ILR 49 Mad 208, and Motilal v. Harnarayan, AIR 1923 Bom 408 it was held that a suit or an action which has abated cannot be continued thereafter even for the limited purpose of recovering the costs suffered by the injured party. In Palaniappa Chettiar v. Rajah of Ramnad, ILR 49 Mad 208, and Motilal v. Harnarayan, AIR 1923 Bom 408 it was held that a suit or an action which has abated cannot be continued thereafter even for the limited purpose of recovering the costs suffered by the injured party. The maxim of actio personalis cum moritur 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 vide Rustomji Dorabji v. W.H. Nurse, (supra) and Ratanlal v. Baboolal, (supra) as well as in those cases where a suit for damages for defamaton, assault or other personal injuries sustained by the plaintiff had resulted in a decree in favour of the plaintiff because in such a case the cause of action becomes merged in the decree and the decretal debt forms part of the plaintiff’s estate and the appeal from the decree by the defendant become a question of benefit or detriment to the estate of the plaintiff which his legal representatives are entitled to uphold and defend (vide Gopal v. Ramchandra, (supra) and Melepurath Sankunni v. Thekittil, (supra). 14. To the similar extent is the judgment of Full Bench of Kerala High Court in the case of Kannamma v. Deputy General Manager, (1991) ACJ 707. 14. To the similar extent is the judgment of Full Bench of Kerala High Court in the case of Kannamma v. Deputy General Manager, (1991) ACJ 707. This case was one arising under Section 110-A (now Section 166) of the Motor Vehicles Act and the Full Bench of Kerala High Court after thorough discussion concluded as under: “ In the result, the Full Bench answers the question referred for its decision by the Division Bench, thus: (i) A claim petition presented under Section 110A of the Motor Vehicles Act, 1939, by the person sustaining bodily injuries in a motor accident, claiming compensation for personal injuries as also for compensation towards expenses, loss of income, etc., (loss to estate) cannot, on such person’s death occurring not as a result or consequence of bodily injuries sustained from a motor accident, be prosecuted by his/her legal representatives; but (ii) A claim petition presented under Section 110A of the Motor Vehicles Act, 1939, by the person sustaining bodily injuries in a motor accident, claiming compensation for personal injuries as also for compensation towards expenses, loss of income, etc., (loss to estate) can, on such person’s death occurring as a result or consequence of bodily injuries sustained in the motor accident, be prosecuted by his/her legal representatives only in so far as the claim for compensation in that claim petition relates to loss to estate of the deceased person due to bodily injuries sustained in the motor accident. 15. Admittedly, in the instant case, the injured, who had brought action before the Tribunal, died before his claim petition could have resulted in award and, therefore, with his death cause of action to claim compensation for personal injuries also died and did not survive to his legal representatives. This position appears to have been well appreciated by the Tribunal but the Tribunal has erred in returning a finding, which is not supported by evidence of any worth, that the death of the deceased was as a result of the injuries suffered by him in the accident that took place almost four years prior to the death. Best evidence could have been the medical evidence. No effort was made by the legal representatives to have the autopsy conducted on the deceased or atleast to have the evidence of an expert i.e. Doctor recorded. Best evidence could have been the medical evidence. No effort was made by the legal representatives to have the autopsy conducted on the deceased or atleast to have the evidence of an expert i.e. Doctor recorded. Perhaps the doctor could have been the right person to indicate as to whether the death of the deceased could have been possible result of the injuries sustained by him in the accident. 16. In view of the discussion made above, I am of the view that the appellant has succeeded in assailing the impugned award on the ground that the findings of the Tribunal that the death of injured-Sudesh Kumar Sharma was as a result of the injuries suffered by him in the accident that took place on 07.09.2009 are erroneous and without any cogent and satisfactory evidence. 17. As a result, the appeal is allowed. Impugned award is set aside and the matter is remanded to the Tribunal to frame a specific issue and determine the same after permitting the parties to lead their evidence. Needless to say that the Tribunal would frame and determine the issue as to whether the death of the deceased-Sudesh Kumar Sharma that took place on 10.11.2013 was as a result of the injuries suffered by him in the motor vehicle accident that took place on 07.09.2009. It is made clear that in case, issue is proved in favour of the claimants and against the insurer, the amount awarded vide impugned award shall immediately become payable to the claimants. However, if the issue goes against the claimants, the sums/claims insofar as these pertain to loss of estate of deceased alone shall be payable.