HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.CNo.157of2007 APPELLANT Smt. Kumari Bai Thakur VERSUS RESPONDENTS : Ravikant Singh andothers AWARD For consideration ?. 09.2011 Sd/- Hon'ble Shri Raieev Gupta. 3 Sd/- ChiefJustice Postfor: g .09.2011 Sd/- N.K. Agarwal Judge .»ssa«.»)i^ Si^-^'. y j/ws% ^ 1 'iigSs^ j !SA 9 '->. '&.. HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.CNo.157of2007 APPELLANT Claimant RESPONDENTS Smt. Kumari Bai Thakur, Wd/o Late Shyam Lal Thakur, aged about 60 years, R/o Gayatri Nagar, Dundera, Tahsil and District Durg (CG). VERSUS 1. Ravikant Singh S/o Shri Ramavadhesh Singh aged about 30 yrs. R/o Rajeev Nagar, Chhawani, Bhilai, Distt. Durg (CG) (Driver of Zeep No. CG-07/ZD/5662) 2. Ramavadhesh Singh S/o late Gupteshwar Singh aged about 50 yrs. R/o Rajeev Nagar, Chhawani, Bhilai, Distt. Durg (CG) (Owner of Zeep No.CG-07/ZD/5662). 3. New India Insurance Co. Ltd. H.O.- Mumbai, Branch Office: Nandni Road, Bhilai, Distt. Durg (CG) Through: Manager. LAPPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, .19881 tDB: Hon'ble Mr. Raieev Gupta, C.J, & Hon'ble IVtr. N.K. Aaarwal, J.) Present : Shri CR Sahu, Advocate for the appellant. Shri Shreekumar Agrawal, Sr. Advocate with Shri Anand Gupta, Advocate for respondent No. 3. ORDER (Deliveredon §- /09/2011) Per: N.K. AaarwaLA 1. This is claimants' appeal seeking enhancement in the compensation awarded by the Xth Additional Motor Accident Claims Tribunal (FTC), Durg for short 'the Tribunal') vide award dated 19.07.2006, passed in Claim Case No. 76/05. 2. As against the compensation of Rs. 6,45,000/- claimed by Shyam Lal Thakur by filing application under Section 166 of the Motor Vehicles Act, 1988 (for short 'the MV Act') for the •»ia, \~\ ts injuries sustained by him in the motor accident dated 17.11.2003; the Tribunal awarded a total compensation of Rs. 2,52,2851- along with interest @ 6 percent per annum from the date of application till its actual payment. The Tribunal, on a close scrutiny of the evidence led, material placed and submissions made by the parties, held : the accident had occurred due to rash and negligent driving of Mahindra Commander Jeep bearing registration No. CG-07- ZD-5662 by its driver i.e. respondent No.l/Ravikant Singh; Shyam Lal Thakur sustained multiple injuries including permanent disability in the said accident; respondent No. 3/The New India Insurance Company Ltd. liable for payment of compensation as it could not establish violation of policy conditions; assessed and awarded total sum of Rs. 2,52,285/- along with interest @ 6 percent per annum from the date of application till its actual payment. Being aggrieved and dissatisfied with the amount of compensation awarded by the Tribunal, claimant Shyam Lal Thakur preferred an appeal before this Court. During pendency of appeal, Shyam Lal died on 11.01.2008 and the present appellant Smt. Kumari Bai Thakur, wife of late Shyam Lal, was substituted in his place. Shri CR Sahu, learned counsel appearing for the appellant would submit: even after death of claimant Shyam Lal during pendency of appeal, cause of action for enhancement of compensation would survive to his legal representative and appeal is maintainable. He would further submit the amount 6. 8. awarded by the Tribunal is shockingly on lower side and therefore the same may be enhanced suitably. On the other hand, Shri Shreekumar Agrawal, learned Senior Advocate and Shri Shri Anand Gupta, counsel for respondent No. 3/New India Insurance Co. Ltd. would submit : on the basis of principle contained in Section 306 of the Indian Succession Act, 1925 on the death of claimant Shyam Lal who had suffered the personal injury in the accident, the legal representative/appellant would be entitled to claim compensation only on the head of the loss of estate and rest of the claims of such persons, who had suffered injuries, would abate. They would further submit: adequate amount of compensation on all heads has already been awarded by the Tribunal and there is no scope for enhancement in the compensation awarded by the Tribunal. We have heard the counsel appearing for the parties and perused the material available on record including impugned award. As per under Section 166 (1)(a) ofthe MVAct; an application for compensation arising out of an accident of nature specified in sub-Section (1) of Section 165 may be made by the person who has sustained the injury. According to the above provision; only a person who has sustained the injury, can file an application for compensation. Section 306 of the Indian Succession Act inter alia provides that all rights to prosecute any action or special proceeding ^...^^^^-:~^- S (:.;. n '^. "•^^ ..<-•' 10. 11 existing in favour of a person at the time of his death, survive to his executors or administrators except causes of action for personal injuries not causing the death of the party. Thus, under Section 306 of the Indian Succession Act, 1925, the executors or administrators of a deceased will have a right to prosecute or continue any action or special proceeding existing in favour of the deceased at the time of his death, except causes of action for personal injury not causing death of the party. Therefore, where the accident does not cause death of a party but only causes personal injury to him, his executors or administrators will not have a right to prosecute or continue to prosecute an application for compensation for personal injury suffered by the party. The full bench of MP High Court in case of Smt. Bhagwati Bai and Anr. v. Bablu and Ors, reported in AIR 2007 MP 38, after considering the judgment of Supreme Court passed in case of Melepurath Sankunni Ezhuthassan v. Thekittil Gapalankutty Nair, reported in AIR 1986 SC 411, has held: a claim for personal injury fited under Section 166 of the Motor Vehicles Act 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. This Court in case of Binduram Tandi and others v. Sardar Sukhpal Singh & others (MA No. 85 of 2005, decided on 26.07.2011), relying upon judgment of Full Bench of MP High Court, has held : the appeal preferred for enhancement of compensation by deceased claimant would abate on his death -—^ ''A :y^ and would not survive to his legal representatives except as regards the claim for pecuniary loss to the estate of the deceased. 12. Now coming to the question whether or not the learned Tribunal has awarded adequate amount of compensation towards pecuniary loss to the estate of the deceased/claimant Shyam Lal Thakur. The learned Tribunal awarded Rs. 1,98,000/- towards future loss of income. The Tribunal has further awarded Rs. 4285/- towards medical expenses as per bills submitted by deceased Shyam Lal Thakur before the Tribunal, Rs. 50,000/- towards pain & suffering, special diet, conveyance, damage to motorcycle and for permanent disability, which, in our opinion, is just and proper compensation on above heads and, therefore, there is no scope of enhancement of compensation in the amount awarded by the Tribunal towards pecuniary loss to the estate of the deceased Shyam Lal Thakur. 13. For the reasons mentioned hereinabove, the appeal being devoid of substance is liable to be and is hereby dismissed. No order as to costs. Sd/- ChiefJustice Sd/- N.K. Agarwal Judge Sahu