1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Civil Application No. 10789 of 2010 in First Appeal No. 1243 of 2005 Shaikh Musa Shaikh Allabaksh (Died), Through L.Rs. Applicant V E R S U S Union of India Respondent Mr. P.S. Agrawal, Advocate for the applicant Mr. M.N. Navandar, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 30th July, 2010 ORAL ORDER : 1. This application is made by the legal representatives of the original appellant, who died during pendency of the appeal. 2. The application is opposed saying that the cause of action would not survive in favour of the legal representatives after the appellant's death. The reliance is placed on the provisions of Section 306 of the Indian Succession Act in support of this objection. Section 306 with illustrations reads as under : "306. Demands and rights of action of or against deceased survive to and against executor or administrator - 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, as defined in the Indian Penal Code (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. 2 Illustrations (i) A collision takes place on a railway in consequence of some neglect or default of an official, and a passenger is severely hurt, but not so as to cause death. He afterwards dies without having brought any action. The cause of action does not survive. (ii) a sues for divorce. A dies. The cause of action does not survive to his representative." 3. A similar situation arose before the Division Bench of this Court in the case of Maimuna Begum wd/o Abdul Rzzaque Qureshi and others V. Taju s/o Ahmed Khan and others (1989 Bom. C.R. 673). It was a claim under Motor Vehicles Act. The learned Judges of this Court having regard to Section 306 of the Indian Succession Act held that the English Common Law maxim, which is incorporated for limited purpose in this Section, is not applicable for a case of this nature. The Division Bench observed as under : "8....Against the backdrop of very peculiar set of facts of the case, we find it wrong and unjust to nonsuit the heirs of the deceased on this ground. In the first place the said maxim is criticized even in the country on its origin as unjust, obscure in its origin, inaccurate in its expression and often resulting into grave injustice. Indian Courts have generally taken a view that the maxim should not be applied as a part of our law except of course where specifically engrafted in a statute and that the principels of justice, equity and good conscience should be followed. See (Bhupendra v. Chandarmani), A.I.R. 1927 Ca. 277. It was anamolous that while action could be maintained by an injured against a wrong doer for causing injury, (and not death) no such action was permissible after his death. This anomoly was sought to be removed in England by the Law Reforms Act and Fatal Accidents Act. Soon thereafter even in 3 Indian on similer lines the Legal Representatives Suits Act and the Indian Fatal Accidents Act were enacted as a result certain causes of action under tort were made to survive and be available to the legal heirs. Section 1 A of the Indian Fatal Accidents Act created special rights in favour of a class of defendants " "10. Assuming that section 306 of the IS Act is attracted in the case of legal heirs (and is not confined only to executors or administrators) illustration (i) to the said section gives indication that the provision is not attracted once an action is brought. In the instant case the death is not only after the action is brought but after an "award" contemplated under section 110B is passed. There can be no manner of doubt that even a total rejection of a claim is an "award"........." The Law laid down by the Division Bench in this Judgment though is in respect of a litigation arising from the provisions of the Motor Vehicles Act, it would squarely apply to this case, which is a litigation arising from Chapter XIII of the Railways Act, 1989. Chapter XIII of the Act is beneficial piece of legislation. It is so held by the Supreme Court in the case of Union of India V. Prabhakaran Vijaykumar and other (2009 (1) Mh.L.J. 27). In view of above, the application would succeed. The delay in making of this application is also condoned for the reasons mentioned in it. Application is allowed. Amendment be carried out during the course of the day. At the oral request of learned Advocate for the applicant, he is also allowed to amend “applicant No. 2 to 4” in place of “applicant No. 2 to 3”, in the title clause of the petition. ( A.V. NIRGUDE, J. ) srm/ca/10789/10 4