LPA/83/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 83 of 2007 In FIRST APPEAL No. 301 of 1990 For Approval and Signature: HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN HONOURABLE MR.JUSTICE AKIL KURESHI ============================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== SURPAL SINGH LADHUBHA GOHIL - Appellant(s) Versus RALIYATBAHEN MOHANBHAI SAVLIA & 10 - Respondent(s) ====================================== Appearance : MR PS PATEL for Appellant(s) : 1, None for Respondent(s) : 1 - 11. ====================================== CORAM : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN and HONOURABLE MR.JUSTICE AKIL KURESHI Date : /12/2008 LPA/83/2007 2/7 JUDGMENT CAV JUDGMENT (Per : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN) This appeal has been preferred by the owner of a Tempo Van bearing Registration No. GTS 7035, aggrieved by the judgment and order passed by the learned Single Judge holding that the claimants are entitled to enforce the award passed by the Motor accident Claims Tribunal (II), Amreli for the injuries caused to the original claimant in an accident which took place on 24.5.1984. 2. Claim petition was preferred by Mohanbhai Khodabhai claiming a total amount of Rs. 70,000/- for the injuries sustained by him in the motor accident which took place on 24.5.1984 at Padar, village Rajeshtali. 3. During the pendency of the claim petition, original claimant died on 27.10.1988. Respondents Nos. 1 and 2 herein preferred an application before the Tribunal for impleading them and to prosecute the claim petition, claiming that they are the legal heirs and representatives of the deceased Mohanbhai Khodabhai. They were accordingly brought on record and the Tribunal proceeded with the claim petition. 4. On facts, Tribunal had found that the original claimant Mohanbhai had sustained fracture of simple nature on the right wrist joint, but his left leg had to be amputated as a result of the injuries caused in the accused. It was also noticed that the claimant was an old man aged 72 years and had suffered mental pain and agony during old age and was also hospitalised. For pain and suffering, an amount of Rs. 12,000/- was awarded. For medical expense an amount of Rs. 3,000/- was awarded. LPA/83/2007 3/7 JUDGMENT An amount of Rs. 4,800/- was awarded for loss of earning and total amount which the deceased could have been awarded was assessed at Rs. 29,400/-. But it was ordered that the claimants would not be entitled to recover the amount since they have no right to continue the proceedings on the death of Mohanbhai, since action for the personal injury died with the death of Mohanbhai. Further it was also noticed by the Tribunal that the claimants had failed to establish that the accident was occurred because of the negligence on the part of opponents Nos. 1 and 2 before the Tribunal. Claim petition was accordingly dismissed by the Tribunal by order dated 8th August, 1989. 5. Against the above judgment, respondents Nos. 1 and 2 preferred First Appeal No. 301 of 1990 before this Court. Learned Single Judge allowed the appeal placing reliance on the decisions of this Court in Janabhai & ors. - 1991 ACJ 585, as well as Gujarat State Road Transport Corpn Vs. Amishkumar Vinodbhai and ors. - 1996 (3) GLR 212 and held that the aim of award of damages is to compensate the person wronged, and there is no reason why measure of damages pertaining to estate should be in any way affected or limited by the death of the original victim of the accident. Learned Single Judge also observed that scope of provisions of Section 306 of the Indian Succession Act has a maxim “actio personalis moritur cum persona”, which appears to be well settled, and the claim of damages on account of loss to the estate of the injured would not abate on his death. The learned Single Judge further held that claim regarding loss caused to the estate would include several items such as medical expenses, miscellaneous expenses, actual loss of income from the date of injuries till the death of the injured etc. but for the injuries sustained, the injured would not have been required to incur the said expenses nor would have suffered actual loss of income. Therefore, it was concluded that even after death of the injured, the LPA/83/2007 4/7 JUDGMENT claim petition does not abate and the right to sue survives to his heirs and legal representatives. 6. We noticed that no appeal has been preferred by the Insurance Company and there is a clear finding by the Tribunal that the claimants could not establish the accident was due to accident on the part of respondents Nos. 1 and 2. Present appeal has been preferred only by the owner of the vehicle contending that the learned Single Judge was not correct in holding that on death of the injured claimant, the claim petition would not abate or the right to sue survives to his heirs and legal representatives. 7. Learned counsel appearing for appellant placed reliance on the decision of the Punjab & Haryana High Court in Calcutta Insurance Ltd. Vs. Bhupinder Singh – 1970 ACJ 344 as well as the decision of Division Bench of Madras High Court in C.P. Kandaswamy and ors. Vs. Mariappa Stores and ors – 1974 ACJ 362, in support of his contention that claim of damages on account of loss to the estate of the injured would abate on his death. 8. Learned counsel for respondent by placing reliance on the judgment of this Court in Gujarat State Road Transport Corporation Ltd. Vs. Amishkumar Vinodbhai (supra) submitted before the learned Single Judge that claim of damages on account of loss to estate of injured would not abate on his death and the right to sue survives to his heirs and legal representatives. Reference was also made to an un-reported judgment of this Court in First Appeal No. 34 of 2007. 9. Motor Vehicles Act is a social welfare legislation under which compensation is provided by way of award to the people who sustain LPA/83/2007 5/7 JUDGMENT bodily injuries or get killed in the vehicular accident. Those people who sustain injuries or whose kith and kins are killed, are necessarily to be provided with such relief in a short span of time so that the procedural technicalities cannot be allowed to defeat the just purpose of the Act under which such compensation is to be paid to such claimants. In construing social welfare legislation, the courts should adopt a beneficient rule of construction and in any event, that construction should be preferred which fulfils the policy of the legislation. Construction to be adopted should be more beneficial to the purposes in favour of and in whose interest the Act has to been passed. Judicial discipline demands that the words of a remedial statute must be construed so far as they reasonably admit so as to secure that relief contemplated by the statute shall not be denied to the class intended to be relieved. 10. The question germane for consideration in this case is whether the common law maxim “actio personalis moritur cum persona” that personal right of action which dies with the person, can be imported to a social welfare legislation so as to deny the benefits to legal heirs and legal representatives of a deceased claimant, to the advantage of a wrong doer? Above principle once upon a time was strictly enforced so as to deny compensation to the claimants accepting the principle that if any injury was done either to the person or property of another, for which damages only could be recovered in satisfaction, the action died with the person to whom the wrong was done. Supreme Court in several decisions diluted the strict application of the above principle in certain fact situations. Reference be made to the decisions of the apex Court in Girija Nandini Devi Vs. Bijendra Narain Choudhury – AIR 1967 SC 1131, Hazari Vs. Neki – AIR 1968 SC 1205, Lakhiram Vs. Management of Sangramgarth Collery & ors – 1994 (1) SCC 292 and other decisions. LPA/83/2007 6/7 JUDGMENT The apex Court also noticed that the maxim “actio personalis mortiur cum persona” though part of English Common Law has been subjected to criticism even in England. Punjab and Haryana High Court in Calcutta Insurance Ltd. Vs. Bhupinder Singh (supra) as well as the Division Bench of Madras High Court in C.P. Kandaswamy and ors. Vs. Mariappa Stores and ors (supra) had however literally applied the maxim “actio personalis mortiur cum persona” and denied the benefit to the claimants since the original claimant had died. 11. We are of the view that strict application of the maxim “actio personalis mortiur cum persona” cannot be imported to defeat the purpose and object of a social welfare legislation like Motor Vehicles Act, to the advantages of a wrong doer. Once the status of the claimants as legal heirs or legal representatives are conceded and acknowledged, to deny benefit of compensation to them, on the ground that injury was personal to the claimant, will be giving a premium to the wrong committed, which in our view would defeat the very purpose and object of the legislation. The question as to whether injury was personal or otherwise is of no significance so far as the wrong doer is concerned and he is obliged to make good the loss sustained by the injured. Legal heirs and legal representatives would have also suffered considerable mental pain and agony due to the accident caused to their kith and kin. Possibly they might have looked after their dear ones in different circumstances, which cannot be measurable in monetary terms. We are therefore in full agreement with the view expressed by the learned Single Judge of this Court in Gujarat State Road Transport Corporation's case (supra) that even after death of the injured, the claim petition does not abate and right to sue survives to his heirs and legal representatives. 12. We however find it difficult to accept the principle laid down by LPA/83/2007 7/7 JUDGMENT Punjab and Haryana High Court in Calcutta Insurance Ltd. Vs. Bhupinder Singh (supra) as well as the Division Bench of Madras High Court in C.P. Kandaswamy and ors. Vs. Mariappa Stores and ors (supra) literally applying the principle that personal action dies with the person, forgetting the spirit and object to the legislation. In this connection, we may refer to a decision of the Rajasthan High Court in Naseehan Vs. Surendra Pal – AIR 1996 (Raj.), wherein the Court has taken the view that claim regarding damages on account of pains, sufferings and mental agony to the deceased will not survive, but the claim regarding loss to the property will survive and permitted legal heirs of the deceased claimants to continue with the proceedings. Karnataka High Court in General Manager, Karnataka State Road Transport Corporation, Bangalore Vs. Peerappa Prasappa Sangolli and ors - AIR 1979 (Kar.) 154 has taken the view that legal representative has a rightful claim when the injured person in the accident dies before or after filing the petition. 13. We are of the view that even for the damages caused on account of pain, suffering and mental agony and also loss to the property, the claimants have a stake due to the status they hold is “legal heirs/legal representatives”, the benefit which otherwise would enure to the wrong doer. We therefore find no reason to interfere with the judgment of the learned Single Judge. Appeal is dismissed. (K.S. Radhakrishnan, C.J.) (Akil Kureshi, J.) */Mohandas