IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. F.A.O.No.26 of 1989 Date of Decision: 30.10.2008 Smt.Chalti Devi. ....... Appellant through Shri S.M.Sharma, Advocate. Versus D.A.V.College Managing Committee,New Delhi and others. ....... Respondent nos. 1 to 3 through Shri Dheeraj Jain, Advocate. Respondent no.4 through Nemo. Respondent no.5 through Shri R.M.Suri, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This appeal by the claimant is directed against award dated 3.9.1988 passed by the Motor Accident Claims Tribunal, Ambala (for short, `the Tribunal') in M.A.C.T. Case No. 3 of 23.10.1986/ 4.5.1988. In an accident which took place on 24.4.1986, Raj Kumar, the son of the appellant, suffered injuries resulting in 100% disablement. The dorsal area of the spine was fractured resulting in complete impairment of the movement of the injured. The medical testimony on record in the shape of the statement F.A.O. No.26 of 1989 -2- .... of PW4-Dr.Sukhbir Singh Sangwan established the extent and nature of injuries and it was also stated by this witness that there was no possibility of further recovery. Raj Kumar ultimately succumbed to his injuries after almost two years, i.e., on 22.3.1988, during the pendency of his claim petition which was filed for grant of compensation on account of injuries that he had sustained. After appraisal of entire evidence on record, the Tribunal assessed the compensation to the tune of Rs.1,17,000/- under the following heads:- (i) Medical bills = Rs.12000-00 (ii) Expenses incurred for special diet during illness= Rs.10000-00 (iii)Loss of future earnings = Rs.40000-00 (iv)Permanent disability = Rs.40000-00 (v) Pains and sufferings = Rs.15,000-00 However, the appellant was allowed only a sum of Rs.12000/- as compensation along with interest at the rate of 12% per annum on account of medical expenses in view of the fact that the deceased received salary till his death. Feeling dis-satisfied with the award, the appellant has filed this appeal. Shri S.M.Sharma, learned counsel for the appellant contended that the compensation awarded is grossly inadequate considering the nature of the injuries that Raj Kumar suffered in the accident. F.A.O. No.26 of 1989 -3- .... On the other hand, Shri Dheeraj Jain, learned counsel for respondent nos. 1 to 3 contended that the deceased was receiving a salary of Rs.350/- per month which was duly proved on record and that even after the accident, he was being paid the same amount and after his death, Rs.250/- per month were being given to his mother by way of family pension and in this view of the matter, there can be no enhancement in the amount of compensation. He further contended that Rs.2500/- were given to the deceased at the time of accident. Shri R.M.Suri, learned counsel for the Insurance Company contended that under the terms of the insurance policy, which is on record, the liability of respondent no.5 was limited to an amount of Rs.50,000/-. I have thoughtfully considered the respective contentions and have perused the record. It may be mentioned that there is no challenge as to the negligence of the driver of the offending vehicle. Therefore, the only question that requires determination is as to what should be the just and adequate compensation which ought to be awarded to the appellant for the death of her son-Raj Kumar. In cases where an injured person suffers 100% disability, the compensation has to be assessed by adopting the para-meters which result in a just and fair compensation being awarded to him or her in the given set of circumstances. The Courts cannot lose site of the fact that such a person whose normal enjoyment of life has been impaired for all times to come permanently is a living dead person. He/ she is not only a strain on the F.A.O. No.26 of 1989 -4- .... financial and other resources of those attending on him/her, but his/ her condition is a constant reminder of impending doom and can, therefore, have a tremendous cause of mental strain and agony. The compensation, therefore, has to be assessed by keeping in view the aforesaid factors and the normal modes of compensation have to be given wings so as to be interpreted liberally. In Joti Ram and others Versus Chaman Lal and others, AIR 1985 P&H 2, a Division Bench of this Court held as under:- “Where a person claimed compensation in respect of injuries sustained by him under S.110-A of the Act of 1939 and died pending determination of the claim, the cause of action survived and the heirs of the deceased could be impleaded as legal representatives in respect of the claim relating to the loss affecting the estate of the deceased. Provisions of S.306 of the Act of 1925 (Succession Act) not only provide that causes qua property would devolve on the legal heirs of the deceased plaintiff but also saves some of the actions of personal nature except those excluded therein.” A Full Bench of Madhya Pradesh High Court in Smt.Bhagwati Bai and Anr. Versus Bablu and Ors., AIR 2007 M.P. 38, observed as under:- “.......... It is by virtue of provisions in S.1 of the Legal Representatives Suits Act,1855 that the legal representatives of the deceased persons can also maintain or continue to maintain an application for compensation for personal injury suffered in F.A.O. No.26 of 1989 -5- .... the lifetime of such person in a motor accident which has occasional pecuniary loss to the estate of which such person might have filed an application for compensation u/s 166(1) of M.V.A.(1988). ..............” In F.A.O.No.666 of 1988 – Smt. Kasturi and others Versus Ram Nath and others, decided on 15.9.2008, this Court observed as under:- “The maxim “actio personalis moritur cum persona” entails that a person, who suffers a loss on account of personal injuries, only has a right to claim compensation for the same, but if the said person dies for the reasons which are not related to the accident, then in that eventuality, the legal heirs of the injured cannot lay a claim. However, in a given case of injury, such as of 100% disability, in which the life and the existence become a mere illusion and death, a welcome and desired option, this principle, i.e., “actio personalis moritur cum persona”, should be deviated from. The case of a claimant, who suffers 100% permanent disability and slips into a vegetative state and dies before his claim petition can be decided for reasons which cannot be established to be related to the accident, cannot be distinguished from that of a case a person, who dies in the accident simply because a few breaths separate him from the living and the dead even though metaphorically he has joined the league of the dead. The reason for this is that in such cases, the injured is reduced F.A.O. No.26 of 1989 -6- .... from a provider and the benefactor of the family to a perennial liability drawing heavily on its resources – financial and manual and if in these circumstances, the injured dies during the pendency of the claim petition, the Tribunal ought to determine the compensation and not to decline to answer the claim petition on the ground that a person claiming compensation has died and the principle of “actio personalis moritur cum persona” defeats the claim.” Accordingly, after considering the entire material on record as well as the law quoted above, is deemed appropriate to assess the compensation for the death of deceased-Raj Kumar as follows:- 1. Expenses incurred for special diet during the illness = Rs.60,000/-, i.e., Rs.2500/- per month considering the fact that he was confined to bed for two years after the accident. 2. On account of loss of future earning = Rs.40,000/- as assessed by the Tribunal and it does not require any interference. 3. Permanent disability = Rs.2,00,000/-, i.e. Assessed on the principle of Rs.2000/- per percentage of the disability which was 100%. 4. Pain and Suffering = Rs.2,00,000/- Thus, the appellant is held entitled to a total amount of Rs.5,12,000/- (Rs.12,000/- already awarded by the Tribunal on account of medical bills) as compensation for the death of her son-Raj Kumar. F.A.O. No.26 of 1989 -7- .... The enhanced amount of compensation shall be paid along with interest at the rate of 9% per annum from the date of filing of the claim petition till the date of realisation. The liability to pay the enhanced compensation and interest shall be the same as has been fixed by the Tribunal. In so far as the contention of the learned counsel for respondent no.5 with regard to the limits of liability of the Insurance Company to indemnify the insured is concerned, suffice it to mention that the insurance policy, Exhibits R4 and R5, does not contain any such limit with regard to death of or bodily injury to any person caused by or arising out of the use including the loading and/ or unloading of the motor vehicle. The Exhibits R4 and R5 further reveal that the Insurance Company shall be liable to pay such amount as is necessary to meet the requirements of the Motor Vehicles Act,1939 in the aforesaid cases, i.e., death of or bodily injury to a person by or arising out of the use of the motor vehicle. The impugned award is modified to the above extent and the appeal is allowed in the aforementioned terms. October 30,2008 ( Mahesh Grover ) “SCM” Judge