IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1085 OF 1991. FIRST APPEAL NO.1085 OF 1991. FIRST APPEAL NO.1085 OF 1991. 1. Shri Laxman Tikamdas Sippy, ) Age about 47 yrs., ) Occ: Service, R/at:6, Gulati ) Mansion, Padamji Park, ) Pune 2. ) 2. Shri Ram Tikamdas Sippy, ) Age about 49 yrs., ) Occ: Service, R/at:6, Gulati ) Mansion, Padamji Park, ) Pune 2. )..Appellants Versus 1. Omprakash Tulsidas Wadhwa, ) Occ: Business, ) R/at Khadki Bazar, Pune 411 003 ) New Address: TS/62, Old Khadki ) Bazar, Pune 3. ) 2. Binabai Ghanshyamdas Chabriya, ) (since deceased) ) was R/at 192/10, Mira Housing ) Society, Pune 411 037. ) Heirs and legal representatives ) 2(A). Ghansyam N. Chabriya(Husband), ) Age: 55 yrs., R/at 10/192, ) Mira Housing Society, Shanker ) Seth Road, Pune 37. ) 2(B). Mr Kishor G. Chabriya, ) Age: 32 yrs., R/at 10/192, ) Mira Housing Society, Shanker ) Seth Road, Pune 37. ) 2(C). Mrs Manju K. Chugh (Daughter), ) Age: 36 yrs., R/at 174, Nalanda ) Nivas, Sathbai Mala New Delhi ) Sage Ahmednagar 1. ) 2(D). Mrs Bharati M.Toheja (Daughter),) Age: 34 yrs., R/at 8 B/1 ) ... 2 ... Nityanand Society, Chembur, ) Bombay 400 074. ) 2(E). Mrs Asha Bhatija (Daughter), ) Age: 28 yrs., R/at 604, ) 6th Floor, Bhavani Tower Bldg., ) Ulhasnagar 3. ) 3. Oriental Insurance Company Ltd.,) Jeevan Darshan Laxmi Road, ) Pune 411 030. ) 4. Arjun Tikamdas Sippy, ) Age: 59 yrs, Occ: Service, ) R/at D-21, Ajanta Anushakti ) Nagar, Trombay, Bombay 94. ) New Address: Institute of ) Pathobiology, University of ) Munchen, Karlst 29800, West ) Germany. )..Respondents --- Shri Laxman Tikamdas Sippy- Appellant No.1 in person. Shri Madhav Jamdar for the Respondent No.1. Mrs Poornima Kantharia for the Respondent No.2. Shri M.B.Kotak for the Respondent No.3. --- CORAM : ABHAY S.OKA, J. CORAM : ABHAY S.OKA, J. CORAM : ABHAY S.OKA, J. DATE ON WHICH JUDGMENT DATE ON WHICH JUDGMENT DATE ON WHICH JUDGMENT IS RESERVED : 14th December, 2007. IS RESERVED : 14th December, 2007. IS RESERVED : 14th December, 2007. DATE ON WHICH JUDGMENT DATE ON WHICH JUDGMENT DATE ON WHICH JUDGMENT IS PRONOUNCED : 11th January, 2008. IS PRONOUNCED : 11th January, 2008. IS PRONOUNCED : 11th January, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. By preferring this Appeal the appellants have taken exception to the judgment and award dated 22nd August, 1991 passed by the learned Member of the Motor Accident Claims Tribunal at Pune in a Claim Petition ... 3 ... under section 110-A of the Motor Vehicles Act, 1939 (hereinafter referred to as the said Act of 1939). The appellants and the fourth respondent are the original claimants. 2. With a view to appreciate the submissions which are made in this appeal, it will be necessary to refer to the facts of the case in brief. The appellants and the fourth respondent filed a claim petition on 22nd November, 1983 claiming compensation on account of injuries sustained by their father Tikamdas Shamdas Sippy on 31st May, 1983 in a motor accident. According to the case made out in the claim petition, the said Tikamdas (since deceased) was crossing the Ambedkar Road at Pune opposite Nehru Memorial Hall alongwith his friend Shri Chandmal Gangaramani. At that time a scooter bearing registration No.MZF 8412 driven by the first respondent gave a dash to the said Tikamdas. According to the case made out in the claim petition, the first respondent was driving the scooter in a very high speed and in a rash and negligent manner. The said Tikamdas received multiple injuries as a result of the accident and his left leg and left hand were badly fractured. He became unconscious as a result of the injuries and was immediately taken to K.E.M General Hospital. On the next day he was taken to Dudani ... 4 ... Accident Clinic. The said Tikamdas was a retired government servant getting monthly pension of Rs.305/-. It is stated that after retirement he was doing active social service and was enjoying a very good health. 3. It is alleged in the claim petition that even after undergoing surgery, Tikamdas was not able to move his left hand. It is alleged that in the accident Tikamdas received some brain injury as a result of which he has become mentally imbalanced and disturbed. It was stated that it became impossible for Tikamdas to walk on his own. It was stated that because of such physical and mental condition, a permanent attendant was required to be employed for him . It is stated that considering good health enjoyed by Tikamdas he would have survived for atleast 20 years. It is stated that due to the accident, Tikamdas was deprived of all the happiness and satisfaction of life as he became permanently invalid and disabled. It is stated that he required presence of an attendant 24 hours. It is stated that the disablement of Tikamdas became constant source of worry and tension for the claimants as well as their family members. Originally a claim of Rs.65,000/- was made by the appellants and the fourth respondent. It was alleged that as the said Tikamdas was not in a fit condition to sign the claim petition the same was being ... 5 ... filed by his sons. 4. During the pendency of the claim petition, on 07th February, 1987 the said Tikamdas expired. Therefore, an amendment was carried out to the claim petition and the claim for compensation was enhanced to Rs.3,00,000/-. 5. It was alleged in the claim petition that the second respondent was the owner of the scooter which was validly insured with the third respondent Insurance Company on the date of the accident. 6. The first respondent filed his written statement and contended that he was plying his scooter very carefully in a slow speed. According to the first respondent there were two auto-rickshaws proceeding ahead of him. He alleged that Tikamdas was very old and was not in a position to control himself. The first respondent alleged that the said Tikamdas with the help of the person accompanying him had already crossed the road and had reached up to the road divider. However, all of a sudden he turned back and he himself fell on the running scooter of the first respondent and fell down. The first respondent contended that he himself alongwith the help of his pillion rider took the said ... 6 ... Tikamdas to K.E.M hospital and admitted him to the said hospital. The allegations of negligence were denied by the first respondent. He stated that though he was the owner of the scooter on the relevant date, the same stood in the name of the second respondent. The first respondent admitted that the scooter was validly insured with the third respondent. The first respondent denied the allegation that the said Tikamdas was not in a position to sign the claim petition. 7. The third respondent filed written statement to the unamended claim petition. The third respondent did not admit that the scooter involved in the accident was insured with it. The third respondent did not admit that the second respondent was the owner of the scooter and that the first respondent was driving the same. The third respondent raised a preliminary objection that though the said Tikamdas was alive, he had not filed the claim petition and therefore, the claim petition filed by the claimants on his behalf was not maintainable. An additional written statement was filed by the third respondent. In the said additional written statement, the third respondent contended that the right and liability of the third respondent was governed by the provisions of the policy and as per the policy, the third respondent was not liable to pay a sum of ... 7 ... Rs.3,00,000/-. The second respondent did not file written statement. 8. By the impugned judgment and award, the learned Member of the Tribunal held that it as not proved by the claimants that the scooter was validly insured with the respondent No.3, the said respondent was not liable to pay compensation. The Tribunal held that the claimants have proved that the deceased Tikamdas sustained injuries and suffered permanent disability as a result of the accident which occurred on 31st May, 1983 involving the scooter owned by the second respondent and driven by the first respondent. The Tribunal came to the conclusion that the claimants were entitled to receive a sum of Rs.27,300/- being the salary paid to the attendant of the deceased at the rate of 700/- per month for a period of three years and three months. The Tribunal held that the first appellant had received a sum of Rs.25,000/- from his employer M/s.Telco towards medical reimbursement. The Tribunal held that out of further amount of Rs.12,658/- claimed by the claimants towards medical expenses, the amounts paid to Usha Nursing Home and Jahangir Nursing Home will not be payable to the claimants as it was likely that the claimants might have claimed the said amount from M/s.Telco. The total amount of compensation of ... 8 ... Rs.31,537.45/- was awarded by the Tribunal to the claimants. However, the Tribunal did not grant interest from the date of filing of the claim petition. The Tribunal directed that if compensation amount was not paid by the respondent Nos.1 and 2 within a period of one month from the date of award, the said amount will carry interest at the rate of 12% per annum from the date of the award till realisation. The present appeal has been preferred by the original claimant Nos.1 and 2 for seeking enhancement in compensation. The second respondent filed cross-objection. 9. The first appellant appeared in person for himself and on behalf of the second appellant and has filed written submissions. The submissions of the appellants can be summarised in brief as under: . A grivenace has been made by the claimants that the claim petition remained pending for a long time before the Tribunal. A submission is made that the third respondent raised a false contention before the Tribunal that the scooter was not insured at the time of accident. It was pointed out that ten years after the claim was filed, the third respondent took up a stand that the said respondent was trying to locate the policy of the insurance. The submission of the appellants is ... 9 ... that in the additional written statement, the third respondent admitted the existence of the insurance policy. It is pointed out that a certificate issued by the R.T.O was produced showing that the scooter was validly insured with the third respondent. He submitted that even the first respondent admitted that the vehicle was validly insured with the third respondent. It is pointed out that notices were issued by the appellants to the third respondent calling upon the said respondents to produce the policy of insurance as mentioned in the R.T.O certificate and there was no response to the said notices. . The appellants pointed out that the hearing of the claim petition commenced only after a representation was made by them to the District Court. It is submitted that the Tribunal could not have allowed the advocate for the insurance company to cross-examine the witnesses examined by the appellants as the third respondent was not entitled to defend the claim on merits. It was submitted that the learned Member of the Tribunal has not properly perused record of the case. It was pointed out that alongwith list Exhibit 34 large number of original bills were produced by the appellants. It was submitted that claim of Rs.12,658.24/- towards medicine, claim of Rs.1,207/- towards fowler cot and the claim of ... 10 ... Rs.4,500/- towards furniture/chairs ought to have been allowed by the Tribunal. It was pointed out that as far as salary to the attendant is concerned, the same should have been allowed for a period of three years and nine months and not for three years and three months. It is submitted that claim of Rs.800/- per month for lodging and boarding of the attendant for 45 months ought to have been allowed by the Tribunal. It was submitted that there was no reason to deny interest on compensation from the date of filing of the claim petition. It was submitted that a minimum amount of Rs.01,32,134.90/- ought to have been awarded. It was submitted that considering the mental and physical shock suffered by deceased Tikamdas as well as by the claimants and other relatives, compensation of Rs.3,00,000/- was certainly reasonable. 10. The learned counsel appearing for the legal representatives of the second respondent have also filed written submissions supporting the cross-objection. It was contended that the scooter was transferred by the second respondent to the first respondent on 08th February, 1983 and in any event on the date of the accident, there was a valid policy of insurance issued by the third respondent which was effective from 07th February, 1983 to 06th February, 1984. It was submitted ... 11 ... that even assuming that notwithstanding the transfer of the scooter if it was held that the second respondent was liable to pay compensation, the same ought to be paid by the third respondent being the insurer of the scooter. A xerox copy of the policy of insurance issued by the third respondent has been produced by the legal representatives of the second respondent alongwith their written submissions. 11. The first respondent also filed written submissions opposing the appeal. It was contended that the scooter was validly insured with the third respondent as evidenced by the certificate issued by the R.T.O Pune and therefore, the third respondent is liable to pay compensation. It was submitted that the death of the said Tikamdas has nothing to do with the injuries sustained in the accident. 12. The third respondent has also filed written submissions. The learned counsel for the third respondent fairly stated that on the date of the accident the vehicle was insured with the third respondent. He admitted the correctness of the xerox copy of policy produced by the counsel for the second respondents in the appeal. He, however, submitted that on the date of the accident the vehicle was already ... 12 ... transferred by the second respondent to the first respondent without notice to the third respondent and therefore, the third respondent is not liable to pay the compensation. 13. He submitted that as per Rule 310 of the Bombay Motor Vehicle Rules, 1959, Rules 1 to 15 of Order XXXII of the Code of Civil Procedure, 1908 were applicable to the proceedings of a claim petition filed under section 110-A of the said Act of 1959. He submitted that even assuming that Tikamdas was not in a position to understand or was not in a position to sign, the claim petition could have been filed by him through a next friend. Placing the reliance on decisions of Punjab as well as Karnataka High Court he submitted that the appellants and fourth respondents could not have filed claim petition during the lifetime of deceased Tikamdas. He submitted that as the claim petition itself was not maintainable this is a fit case for invoking power of this Court under Rule 33 of Order XLI of the Code of Civil Procedure, 1908 and to set aside the award on the ground that the claim petition itself was not maintainable. He submitted that the claimants had no authority to file the claim petition. 14. Further submission of the third respondent is ... 13 ... that even assuming that the claim petition was maintainable, the claimants are not entitled to claim any compensation on account of death of the said Tikamdas as it is not established that the death was caused due to injuries sustained in the accident. He submitted that due to demise of the injured during the pendency of the claim petition, his legal representatives can prosecute claim petition only in so far as loss to the estate of the deceased is concerned. He has placed reliance on various decisions of this Court as well as other High Courts. 15. The first appellant appearing in person has made oral submissions for dealing with various decisions relied upon by the third respondent. He submitted that none of the said judgments are applicable to the facts of the present case. 16. I have considered the aforesaid submissions. I have also perused the notes of evidence and the record of the Tribunal. The first respondent has not challenged the finding recorded against him of rash and negligent driving. Considering the aforesaid submissions the following points arise for determination of this court: ... 14 ... (i) Whether the claim petition filed by the original claimants during the life time of deceased Tikamdas was maintainable in law? (ii) Whether the claimants are entitled to claim compensation on account of death of the said Tikamdas during the pendency of the claim petition? (iii) Whether the third respondent is liable to satisfy the award made against the first and second respondents? (iv) Whether the claimants are entitled to enhancement in compensation? 17. In the claim petition filed by the claimants (appellants and the fourth respondent) it is asserted as under: "VI. The applicants are the only legal representatives of the injured. The injured not being in a fit condition and adequate health to sign this application, this ... 15 ... application is filed by his three sons, on whom the injured is completely dependent and they are only looking after him since the accident took place". 18. The first appellant deposed on behalf of the claimants. In so far as the aspect of authority of the claimants to file claim petition is concerned, there is no cross-examination made by any of the respondents. In the claim petition, the claimants have claimed to be legal representatives of Tikamdas. In the claim petition it is disclosed that the claimants are the sons of the said Tikamdas. The fact that the claimants are sons of Tikamdas has not been disputed in the written statement of any of the respondents. The claim petition was filed on 22nd November, 1983 and during the pendency of the claim petition, on 07th February, 1987 the said Tikamdas expired. An amendment was carried out to the claim petition. By the said amendment the claimants contended that the said Tikamdas expired on 07th February, 1987 due to accidental injuries. 19. Whether the said Tikamdas died due to injuries suffered in the accident or not is a different question which will have to be decided independently. However, it cannot be disputed that the claimants could have ... 16 ... lawfully filed the claim petition after the demise of Tikamdas claiming compensation on the basis of the allegation that Tikamdas died due to injuries sustained by him in the accident. The learned counsel appearing for the third respondent (insurer) has placed reliance on a decision of a Division Bench of Panaji Bench of this Court in the case of Skoda Afonso (deceased) through legal representatives Vs. Motor Accident Claims Tribunal, Panaji, Goa and others (2000 ACJ Page 748). The Division Bench was dealing with a case where an injured person filed a claim petition for seeking compensation on account on injuries sustained by him in the motor accident. The said claim petition was dismissed in default. During the pendency of the claim petition, the original claimant expired. The legal representatives of the claimant filed an application to bring themselves on record. The said application as well as application for restoration was dismissed by the trial Court. In paragraph No.6 of the decision of the Division Bench held thus: ". It does not sound to reason that if initially the claimant who has filed claim for compensation due to injuries on account of the accident dies during the pendency of the claim ... 17 ... petition and the death can be directly co-related with the injuries suffered by him in the accident, then the legal representatives should not be permitted to pursue the claim petition as originally filed by the petitioner. The position would be different in cases where death of claimant during pendency of claim petition is not on account of injuries suffered in the accident and in such cases cause of action would survive for legal representatives only in so far as loss to the estate is concerned". 20. In paragraph No.8 the Division Bench observed thus: "8. Be that as it may, if the death of the claimant is not on account of the injuries suffered in the accident, then, the cause of action would survive in favour of the legal representatives insofar as loss to the estate is concerned. This proposition is in fact well settled by a number of rulings upon which reliance has been placed by learned advocate for the petitioners including a Division Bench ruling of this court in Maimuna Begum V. ... 18 ... Taju, 1988 ACJ 417 (Bombay)". In paragraph No.8 the Division Bench further observed as under: ". The Division Bench in paragraph 11 of the judgment has come to the conclusion that even the legal representatives can claim damages for loss to the estate of the deceased and it is difficult to see as to why an action initiated by an injured for damages on account of loss to his property should not be made to survive to his legal representatives on his death pending an action already launched by him". In paragraph No.9 the Division Bench proceeded to observe that: ". We are in respectful agreement with the proposition of law laid down by the Division Bench and this ruling of the Division Bench has been followed by another Division Bench of this court in Hiru K. Borkar V. Suresh B. Kankonkar, First Appeal No.31 of 1995". ... 19 ... Thus, if the injured person dies during the pendency of a claim petition on account of the injuries suffered by him due to the accident, his heirs can either file a fresh claim petition for compensation after the death of the injured person or can apply to substitute themselves in place of the original claimant (injured) and can claim compensation on account of his death. If the injured himself had filed a claim petition, and even if it was not established that his death was due to injuries sustained in the accident, his legal representatives can prosecute the original claim petition for claiming compensation to the extent of the loss to the estate of the deceased. 21. In the present appeal, while dealing with the second question I have held that there is no evidence on record to show that the deceased died due to injuries sustained in the accident. Therefore, the question which arises is whether the claim petition filed during the life time of Tikamdas by the claimants claiming compensation on the account of injuries sustained by the Tikamdas was maintainable. There is no dispute that the claimants are the legal representatives being the sons of deceased Tikamdas. Had the claim petition been filed by Tikamdas himself, the present claimants after the ... 20 ... demise of Tikamdas could have brought themselves on record and could have prosecuted the claim to extent of loss to estate of the deceased. Therefore, on the day on which the claim petition was decided by the Tribunal, the claim made by the claimants to the extent of loss to the estate of the deceased was maintainable. Therefore, the question whether the claim petition as originally filed by the claimants was maintainable recedes to the background in the light of the subsequent unfortunate demise of Tikamdas. The said question becomes academic as it cannot be disputed that on the date on which