1 FA 253.2009 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 253 OF 2009 Anant Vasudeo Kavishwar Age : Major, Occ. Pensioner, R/o : Dehadkarwadi, Old Jalna, Tq. & Dist. Jalna. .... APPELLANT V E R S U S Ramrao S/o Vithoba Jadhav (Died ) - through L.R. : Prayagbai W/o Ramrao Jadhav Age : 71 Years, Occ. Household, R/o : Dhangarpimpri, Tq. Ambad, Dist. Jalna. .... RESPONDENT Mr. Hemant Surve, Advocate for the appellant. Mr. P.B.Rakhunde & Mr. S.B.Bhapkar, Advocates for the respondent. CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 11/04/2011 2 FA 253.2009 - ( J ) JUDGMENT : 1. The issue to be adjudicated and addressed in the present Appeal is, “ In case of permanent disability suffered by a person in an accident, whether right to sue would survive in case of death of the said person prior to the decision of the said claim petition by the Tribunal, more particularly, when the death is not the result of the injury sustained in the said accident ? ”. 2. The present Appeal is filed by the original opponent. 3. That Ramrao S/o Vithoba Jadhav had filed claim petition purportedly under Section 166 of the Motor Vehicle Act [ For short, ‘ said Act ’ ] for compensation on account of the permanent disability sustained by him in an accident. According to the said claimant Ramrao, on 28/09/2002 at about 8.30 a.m. he was proceeding on bicycle. When he came in front of Jalna bus stand, one motorcycle bearing R.T.O. registration No. MH-21-B-3952 dashed him. The said vehicle was driven in a rash and negligent manner and in an excessive high speed. The original opponent Anant Vasudeo Kavishwar i.e. the present appellant was driving the said motorcycle. In the said accident, said Ramrao suffered 20 % permanent disability in as much as injury was suffered to Femur ( right ). Though the 3 FA 253.2009 - ( J ) said accident had taken place on 28/9/2002, the F.I.R. was lodged after two ( 2 ) months and the claim petition was filed on 13/04/2005. During the pendency of the said claim petition, said Ramrao died and the petition was prosecuted by his wife Prayagbai. The Tribunal has partly allowed the claim petition to the extent of Rs. 46,600/- including Rs. 10,000/- which was already paid. The original opponent had assailed the said Judgment in the present Appeal. 4. Mr. Hemant Surve, the learned counsel for the appellant submits that the case filed by Ramrao is absolutely false and frivolous. The accident had not taken place at the hands of the present appellant nor his motorcycle is involved in the said accident. The F.I.R. is also lodged after two ( 2 ) months. In fact, the appellant helped deceased Ramrao. The disability certificate is frivolous. Even the Tribunal has disbelieved the said certificate. According to the learned counsel, the case is of personal injury, as such the right to sue does not survive on the death of Ramrao. Prayagbai, his wife could not have prosecuted the said claim petition. The causing of death has no relation with the injury sustained in the accident. Deceased Ramrao died in the year 2006, whereas the accident had taken place on 28/9/2002 i.e. prior to four ( 4 ) years of the death of Ramrao. On this count itself, the claim petition should have been abated. 4 FA 253.2009 - ( J ) 5. Per contra, Mr. S.B.Bhapkar along with Mr. P.B.Rakhunde, the learned counsel strenuously contended that Prayagbai is validly brought on record as legal representative of deceased Ramrao by the Tribunal. The appellant had not taken this as a ground before the Tribunal. The wife of deceased Ramrao would be entitled to prosecute the claim petition being the legal representative as she would have been benefited from the amount received. The cause to sue survives. 6. I have heard the learned counsel. I have also gone through the Judgment and the record and proceedings. 7. Before adverting to the arguments of the learned counsel for the respective parties, it would be necessary to refer to the provisions which are relevant and necessary for adjudicating the lis : (i) Section 306 of the Indian Succession Act, 1925 : 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 5 FA 253.2009 - ( J ) 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. (ii) Order XXII Rule 1 of the Code of Civil Procedure : No abatement by party’s death, if right to sue survives : The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. (iii) Section 166 (i) of Motor Vehicles Act - An application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made - (a) by the person who has sustained the injury; or (b) by the owner of the property ; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the 6 FA 253.2009 - ( J ) case may be. (ii) xxxxxxxxxxxxxxxx (iii) xxxxxxxxxxxxxxxx. 8. As per Section 166 of the Motor Vehicles Act, an application for compensation arising out of an accident can be made by the person, who has sustained the injury and only in case of the death having resulted from the accident, the legal representative of the deceased can maintain an application for compensation. 9. In the present case, it is undisputed that the accident had taken place on 28/09/2002. The claim was filed by Ramrao on account of the injury sustained by him in the accident as stated in the claim petition. It is also undisputed that Ramrao died on or about 28/02/2006 and the claim petition was further prosecuted by his wife Prayagbai as a legal heir. The respondents have nowhere contended that deceased Ramrao died on account of the injury sustained by him in the said accident. More over, the time gap between the said accident as alleged and the death of the deceased Ramrao is more than 3 ½ years. The injuries said to have been sustained by Ramrao is to the right femur. Naturally, the death could not have been caused by the same. More over, it is not the case of the respondent that the 7 FA 253.2009 - ( J ) death of Ramrao was on account of the injury sustained by him in the accident. 10. Order XXII Rule 1 of the Code of Civil Procedure lays down that the death of the plaintiff or the defendant shall not cause the Suit to abate if the right to sue survives. It is only if the right to sue survives, then only the proceedings would not stand abated. If the right to sue does not survives, the proceedings would abate. 11. The right to sue means the right to bring a Suit asserting right to the same relief which the deceased plaintiff asserted at the time of his death. The death of a party wronged or of a wrong-doer brings an end to the cause of action and the right to sue gets extinguished except cases where the Tort feaser’s estate has benefited by the wrong committed by the deceased Tort feaser. 12. This principle that right to sue does not survive in case of personal injuries not causing death is based on the maxim “ Actio Personolis moritur cum persona ”, a personal action dies with the person. The logical import of the rule “ Actio Personolis moritur cum persona ” is that for injuries to the perso alone not affecting property of any kind, the remedy ceases 8 FA 253.2009 - ( J ) upon the death of the doer or sufferer. 13. Section 306 of the Indian Succession Act is unambiguous. It lays down that all demands and right to prosecute or defend any action in favour of or against the person at the time of his death survive except causes of action for defamation, assault as defined in Indian Penal Code or other personal injuries not causing the death of the party. From bare reading of Section 306 of the Indian Succession Act, it is manifest that the causes of action for defamation, assault, personal injuries not causing death, would not survive. Personal injuries in sense of bodily or physical injuries are plainly “ Ejusdem Generis ” with term assault. 14. In view of the above conspectus as the death of the original claimant Ramrao is not caused due to the injury sustained in the accident nor it is shown that due to the accident the loss was occasioned to the estate of the deceased, the right to sue on the death of the original claimant would not survive, interalia the original claim petition itself would stand abated. 15. As the Appeal succeeds on this ground itself, the other arguments of the learned counsel for the appellant regarding involvement of the appellant in the accident is not being considered. 9 FA 253.2009 - ( J ) 16. In the result, the Appeal is allowed. The impugned Judgment and Award passed by the Motor Accident Claims Tribunal, Jalna is quashed and set aside and it is held that the original claim petition itself stands abated as right to sue does not survive. No costs. [ S.V. GANGAPURWALA,J. ] KNP/FA 253.2009