JUDGMENT : 1. By way of this Appeal, the Appellants-claimants have challenged the judgment and award dated 24.04.2018 passed by the learned Motor Accident Claims Tribunal, Ahmedabad in M.A.C.P. No.536 of 2007. 2. The facts giving rise to the present Appeal can be put succinctly as under :- On 29.12.006 at 2.30 p.m., the deceased was driving his Scooter bearing Registration No.GJ-1-CB-4170 and was going on the road in front of Swami Narayan Mandir, Ahmedabad. As stated, the scooter was on the correct side of the road, was being driven in a normal speed, following the traffic rules. At that juncture, an auto-rickshaw bearing Registration No.GJ-1-XX-2150 being driven in full speed, in a rash and negligent manner and endangering human life, came and dashed the Scooter. The deceased sustained injuries on the head, on the left side of the pelvis with multiple rib fractures (2-8). The scapula also got fractured and in addition, severe injuries were received on other parts of the body. A complaint in this regard was lodged with Madhupura Police Station as I-C.R. No.371 of 2006. 3. Heard learned Advocate for the appellants Mr. Sandip C. Shah, who submitted that the claim case was filed by the injured claimant himself. The accident had taken place on 29.12.2006, the claimant had expired on 20.04.2009 and therefore, by an application – Exhibit 31, the heirs were brought on record. 4. According to the claimants, initially the injured was taken to Samved Hospital, Ahmedabad and he remained there as an indoor patient till 23.01.2007 and during this period, he was operated twice. The yearly income of the deceased was stated to be Rs.1,11,143/- and he was an income-tax payer. Learned Advocate for the appellants Mr. Sandip C. Shah submitted that since the injured had died during the course of trial and when the heirs were brought on record, the learned Tribunal has committed an error in assessing the amount under the head of Loss to Estate, as well as the expenses made by the heirs behind the injured and other medical expenses and submitted that these are required to be granted. In addition, the loss of income from the date of accident till the death of the deceased is also required to be granted as the claimants are the entitled to receive the same. 5. Learned Advocate Mr. In addition, the loss of income from the date of accident till the death of the deceased is also required to be granted as the claimants are the entitled to receive the same. 5. Learned Advocate Mr. Sandip C. Shah submitted that the multiplier adopted by the learned Tribunal requires re-consideration. It is also submitted that the learned Tribunal has erroneously deducted the amount under the head of contributory negligence, where the case has been registered against the rickshaw driver and hence, urged to re-consider the negligence aspect. 6. Countering the above arguments, learned Advocate for the respondent – Insurance Company Mr. Palak H. Thakkar submitted that the heirs of deceased would not have any compensation under the head of dependency loss, since the deceased died a natural death after a vehicular accident after a period of 2 years, 3 months and 22 days. Hence, it is submitted that no amount can be granted under the head of future loss of income. It is further submitted that the loss assessed as actual loss of income by the learned Tribunal is also on a wrong footing. 7. Having heard learned Advocates for the respective parties, perused the records of the case. The undisputed fact that surfaces on record is that the deceased had filed the Motor Accident Claims Petition on the ground of functional disability due to the injury suffered in the vehicular accident. During the course of the trial, he died. The heirs had come on record, in view of the decision of this Court in the case of Madhuben Maheshbhai Patel Since Decd. Through Heir v. Joseph Francis Mewan and Anr. reported in 2015 (2) G.L.H. 499 , the claim petition would not abate, while the cause and right to sue survives to the legal heirs and legal representatives and loss to estate includes personal expenses incurred on the treatment and other claim related to loss to the estate. The matter arose by referral order of the learned Single Judge which was placed before the Division Bench where the law laid down in Surpal Singh Ladhubha Gohil v. Raliyatbahen Mohanbhai Savalia and Others reported in 2009 (2) G.L.H. 217 was put to test. 8. The matter arose by referral order of the learned Single Judge which was placed before the Division Bench where the law laid down in Surpal Singh Ladhubha Gohil v. Raliyatbahen Mohanbhai Savalia and Others reported in 2009 (2) G.L.H. 217 was put to test. 8. In the case of Jenabhai Widow of Abdul Karim Musa v. Gujarat State Road Transport Corporation reported in 1991 (1) G.L.R. 352 , the Court had considered the provision of Section 306 of the Union Assumption Act, 1925 with regard to the applicability of the legal maxim ‘action personalis moritur cum persona’ wherein in the backdrop with the provision to Section 306 of the Indian Succession Act, the claim of the legal heirs and representatives with respect to the loss to estate was considered and appreciated and it was held in Paragraph 14 as under:- “14. The provisions of Section 306 of the Indian Succession Act relate only to the personal or bodily injuries and not to the loss caused to the estate of the deceased by the tortfeasor. Therefore, it can be concluded that the maxim actio personalis moritur cum persona has been considerably abrogated or modified by the provisions of Section 306 of the Indian Succession Act. Section 306 of the Succession Act, explicitly, prescribes 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, survive to and against his executors or administrators; except causes of action for defamation, assault or other personal injuries not causing the death of the party. The loss to the estate or injury to the proprietary or property right affecting the estate of the deceased, thus, cannot be said to have been covered by the exception contained in Section 306 of the Succession Act. The view of this court is also fortified by the decision rendered in the case of Sampati Lal v. Hari Singh 1985 ACJ 539 . It was clearly held in the said decision that the right to sue is available to the legal representatives of the deceased as a claim on account of the deceased survived and passed over to his legal representatives. It was held in the said case that expenses incurred on treatment and loss of income from the date of accident to death amounts to a loss to the estate.” 9. It was held in the said case that expenses incurred on treatment and loss of income from the date of accident to death amounts to a loss to the estate.” 9. The claimants as heirs and legal representatives would have suffered because of the physical disability of the deceased as a result of the vehicular accident, since the disability would have caused loss of income during the lifetime to the deceased after the accident. Had the deceased not sustained injury, there would not have been loss of income and there would not be any detrimental effect on the life of the deceased involved in the accident. 10. The unfortunate accident would affect the income of the injured which would ultimately cause loss to Estate as observed in the case of Jenabhai Widow of Abdul Karim Musa (supra). The loss of past income for the period from the date of accident till the inability on the part of the deceased to earn on account of the injuries, subject to reasonable expenses for himself, would also form a part of estate of the deceased. The judgment clarifies that loss of income after the death of the deceased would not be loss to Estate. The action for amount of claim which is not attributable to the loss of estate of the deceased could not survive to the legal heirs and representatives, i.e. the heirs and legal representatives of the deceased would not be entitled to and eligible to claim the amount which is not referable to or not attributable to the loss to the estate. 11. In view of the judgment referred hereinabove, the case would survive for the legal heirs and representatives who claim the compensation amount for loss to estate. The Loss to Estate would include the expenses incurred on treatment or loss of income from the date of accident to death of the deceased. 12. Here in this case, the learned Tribunal has considered the income of the deceased @ Rs.3,500/- per month relying on the evidence on record. 10% disability has been assessed and considering the age of the deceased at the time of accident as 64 years, the multiplier of 7 is to be applied. 12. Here in this case, the learned Tribunal has considered the income of the deceased @ Rs.3,500/- per month relying on the evidence on record. 10% disability has been assessed and considering the age of the deceased at the time of accident as 64 years, the multiplier of 7 is to be applied. Hence accordingly in view of the 10% functional disability, the claimants would be entitled for the loss to Estate as such of income because of the claim of the legal representatives and heirs as claim for the loss of estate. The amount for the loss of income from the time of accident till the death would be Rs.29,400/- (Rs.3,500/- x 10% x 12 x 7). 13. The injured claimant had totally not received the income for about six months and there was no contribution of income from the side of the injured. Hence, it would be considered that other family members would have spent money on behalf of the injured for that period, that amount which could have been paid by the heirs and legal representatives for a period of six months assessed as per income comes to Rs.21,000/-. 14. The medical expenses of Rs.2,73,979/- has been proved. During the period of recuperation, the family members may have spent money towards Special Diet and Transportation Charges. The learned Tribunal has granted Rs.25,000/- under the said head. The learned Tribunal has assessed Rs.18,000/- as Attendant Charges but inadvertently fails to add in the final computation. 15. Thus, the computation can be made as under :- Details Amount (Rs.) Loss to Estate due to functional disability of the injured till death 29,400/- Loss of income to the injured 21,000/- Medical Expenses 2,73,979/- Special Diet and Transportation Charges 25,000/- Attendant Charges 18,000/- TOTAL 3,63,379/- 16. The decision of the High Court of Judicature at Madras in the case of C.P. Kandaswamy and Others v. Mariappa Stores and Others reported in 1974 A.C.J. 32 was referred to by the learned Tribunal, and the learned Tribunal has considered 30% negligence of the deceased scooterist, while 70% has been attributed to be the negligence of the rickshaw driver. The evidence was on record that the original claimant was on the correct side of the road and in moderate speed, while the rickshaw driver was speeding his vehicle in a rash and negligent manner and had dashed the scooter. The evidence was on record that the original claimant was on the correct side of the road and in moderate speed, while the rickshaw driver was speeding his vehicle in a rash and negligent manner and had dashed the scooter. The learned Tribunal has considered the reply of the written statement of the auto-rickshaw driver who had stated that he was on the correct side of the road which was from Commissioner’s Office to Delhi Darwaja and it was the injured claimant who had come on the wrong side to Delhi Darwaja and had dashed with the rickshaw. The negligence of the Scooterist could be noted from the evidence on record but the fact would remain that the rickshaw being a passenger vehicle was required to be more cautious on the road. Thus, the assessment of negligence must be on the basis of evidence on record. The learned Tribunal has attributed 30% negligence of the deceased scooterist. That is a higher assessment. The contributory negligence is to be assessed keeping in view the type of vehicle involved, the greater care to be exerted by the rickshaw driver. Hence, according to the facts of the accident, the scooterist’s negligence is assessed as 20%. 17. In the present case, 20% deduction is required to be made towards the negligence of the deceased. Hence, 20% deduction of Rs.3,67,379/- comes to Rs.73,475/-. Therefore, the amount after deduction would be Rs.2,93,904/- (Rs.3,67,379/- minus Rs.73,475/-). 18. The learned Tribunal has awarded an amount of Rs.2,29,130/- with rate of interest @ 9% per annum, which the respondent/s are liable to deposit, with the enhanced amount as Rs.64,774/- (Rs.2,93,904/- minus Rs.2,29,130/-). In the result, the present respondent/s are directed to deposit the amount within a period of EIGHT (8) WEEKS from the date of receipt of writ of the order of this Court. It is further directed that the claimants would be entitled to receive the enhanced compensation with rate of interest @ 7.5% per annum from the date of the application and the disbursement of the amount be made as per the judgment and award of the learned Tribunal. 19. In view of the above, the Appeal is allowed and the judgment and award dated 24.04.2018 passed by the learned Motor Accident Claims Tribunal, Ahmedabad in M.A.C.P. No.536 of 2007 stands modified to the above extent. 19. In view of the above, the Appeal is allowed and the judgment and award dated 24.04.2018 passed by the learned Motor Accident Claims Tribunal, Ahmedabad in M.A.C.P. No.536 of 2007 stands modified to the above extent. Record and proceedings, if any, be sent back to the concerned Court / Tribunal forthwith.