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IN THE HIGH COURT OF KARNATAKACIRCUIT BENCH AT DHARWAD
Dated this the 18th day of January, 2013
Before
THE HON’BLE MR.JUSTICE ARAVIND KUMAR
Miscellaneous First Appeal No.4031/2007 (MV)
BETWEEN:
Divisional ManagerUnited India Insurance Co., Ltd.,Divisional Office,L E A Complex,
Near Municipal Corporation,Dharwad – 580 008. …Appellant
(By Sri.S.C.Jainar, Advocate)
AND:
1. Mallappa Basappa IndurR/o: Byahatti,Tq. Hubli,By his LRs
1a. Smt.RenukadeviW/o Mallappa IndoorNow aged about 50 years
1b. MuktayakaD/o Mallappa Indoor
Now aged about 26 years
®
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1c. SiddarameshwarS/o Mallappa IndoorNow aged about 24 years
1d. KamaleshwarS/o Mallappa IndoorNow aged about 21 years
1e. Smt.Shivaleela N.Mantur
D/o Mallappa Indoor,Major,
1f. Smt.Sarvamangala H. HosamaniD/o Mallappa IndoorMajor,
All are r/o of Near Last Bus stopTejaswi Nagar,Dharwad
2. Ajit Gangadhar Balekundri
Major,Owner of Mini Bus,R/o: Majjigudda Building,Near Bus Stand,Navalgund. …Respondents
(By Sri.J.S.Shetty, Advocate for R-1a to R-1f,Sri.V.D.Ganigar & Associates, advocates for R-2)
This miscellaneous first appeal is filed under
Section 173(1) of the Motor Vehicles Act against the
judgment and award dated 12.09.2006 passed in MVC
313/2003 on the file of I Addl. Civil Judge (Sr.Dn) &
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CJM & Addl. MACT Dharwad, awarding compensation
of `1,85,000/- with interest @ 8% p.a. from the date of
petition till realisation.
This appeal having been heard and reserved
coming on for pronouncement this day, the Court
delivered the following:
JUDGMENT
This appeal is by the Insurance Company
questioning the correctness and legality of the
Judgment and award passed in MVC 313/2003 dated
12.09.2006 by I Addl. Civil Judge (Sr.Dn) and CJM,
Dharwad whereunder claim petition has been allowed in
part and a compensation of `1,85,000/- with interest @
8% p.a. is ordered to be paid by the appellant herein.
2. I have heard the arguments of Sri.S.C.Jainar,
learned counsel appearing for the appellant and
Sri.J.S.Shetty, learned counsel appearing for the
respondents/claimants. Perused the judgment and
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award passed by the Tribunal and also records secured
from the Tribunal.
3. It is the contention of Sri.S.C.Jainar that
Tribunal erred in awarding compensation for the
injuries sustained by Basappa Mallappa Indur though
he had expired after five years after the accident and as
such the legal heirs namely respondents 1 to 6 herein
did not have cause of action to seek for compensation.
He would further contend that award passed by the
Tribunal is opposed to dicta of the Full Bench in the
case of Kannamma Vs Deputy General Manager, KSRTC
reported in ILR 1990 Karnataka 4300 and in the case of
Babu Rao Sataba Manabutakar Vs Doreswamy and
others reported in ILR 2002 Karnataka 660 and as such
he seeks for setting aside the Judgment and award
passed by the Tribunal.
4. It is the contention of Sri.J.S.Shetty, learned
counsel appearing for claimants that when the claim
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petition is filed by an injured and if he dies during the
pendency of claim petition, his legal heirs can seek for
compensation and can continue the proceedings and
seek payment towards loss of estate and medical
expenses incurred. He also contends that in the normal
circumstances when the petition is filed seeking for
compensation towards injuries sustained there cannot
be any dispute with regard to liability of the insurance
company and death of a claimant should not act as a
premium for insurance company to contend that it
should be absolved of its liability.
5. Having heard the learned advocates appearing
for the parties I am of the considered view that the
following point would arise for my consideration:
“Whether a claim petition filed under Section
166 of the Motor Vehicles Act, 1988 claiming
compensation for personal injuries sustained
as a result of motor vehicle accident would be
maintainable on his demise and whether the
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legal heirs of the deceased can continue the
proceedings on the demise of the claimant
even though death was not on account of
injuries sustained in said accident?”
BRIEF BACKGROUND OF THE CASE:
6. A claim petition was filed by one Sri.Mallappa
Basappa Indur under section 166 of the Motor Vehicles
Act, 1988 on 21.03.98 in MVC 313/2003 contending
interalia that he is entitled for compensation on account
of injuries sustained by him in a road traffic accident
that occurred on 09.01.98. Said claim petition was
resisted by the insurance company by filing a detailed
statement of objections denying the averments made in
the claim petition. During the pendency of the claim
petition, claimant expired on 05.01.2002. An
application came to filed by the wife and children of the
deceased claimant to come on record as legal heirs and
to prosecute the claim petition. Said application came
to be allowed on 14.08.2002 and it was observed by
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Tribunal while allowing the said application to the
following effect:
“In the absence of any definite averments that
the death has occurred as a result of
consequential bodily injuries, on the face of it,
the present petition deserves to be dismissed.
However, in the interest of justice and to
avoid multiplicity of proceedings, I deem it
expedient to afford an opportunity to the
petitioners to prove the loss to the estate as
held in the aforesaid decision”.
7. Tribunal also took note of Full Bench Judgment
in the case of Kannamma Vs Deputy General Manager,
KSRTC reported in ILR 1990 Karnataka 4300 while
disposing of the said application.
8. The accident in question occurred on
09.01.1998. Claim petition came to be filed on
21.03.1998. Claimant expired on 05.01.2002. The
application filed by the wife and children of the
deceased claimant was allowed on 14.08.2002 by the
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Tribunal with an observation as already noticed
hereinabove.
9. The Tribunal on appreciation of evidence
available on record allowed the claim petition in part
and has awarded a total compensation of `1,85,000/-
with interest @ 6% p.a. from date of petition till
realisation. The Tribunal has awarded the
compensation as under:
For fracture of right forearm ` 15,000/-
For compound fracture of tibiaRight leg ` 20,000/-
35% disability ` 40,000/-
for pain and agony ` 20,000/-
for medical expenses includingcharges of hotel and attendantand operation ` 90,000/-
---------------- TOTAL ` 1,85,000/-
===========
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RE: POINT NO.1:
10. In the instant case the claimant sought for
compensation for bodily injuries sustained by him in a
road traffic accident that occurred on 09.01.1998.
During the pendency of the said petition he expired on
05.01.2002. There cannot be any doubt or dispute that
claimant did not expire on account of injuries sustained
in accident or in other words the cause of death was not
on account of bodily injuries sustained by him in the
road traffic accident. In order to prove as to what was
the injuries sustained, treatment obtained, disability
sustained by deceased claimant, Dr.Suryakanth was
examined as PW-2 on 07.07.2004 and in the cross
examination he has stated to the following effect:
“2. I have examined the petitioner on16.01.1998 xxx earlier stage. It is true, suchinjuries do not lead to death. Afterdischarged xxx superior Antibiotic. I voluntarysay that infection was under control. I again
say infection was under control”.
(Emphasis supplied by me)
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11. The wife of the claimant who has come on
record has tendered evidence as PW-1. Though in
examination-in-chief she contended that claimant did
not recover from the injuries sustained by him in the
accident in question, cross examination dated
04.12.2002 would demolish her plea which reads as
under:
“6. It is not true to suggest xxx Hubli. After the
treatment at Kshema Hospital, my husband
recovered, but he was required to take follow
up treatment for removal of the rod. After
discharge from the hospital he joined the
service and worked for nearly five years
thereafter. He was attending his duties
regularly, during this period without any leave”.
Thus, when evidence of PW-2 and PW-1 as extracted
hereinabove is perused it would clearly establish that
cause of death of the claimant was not on account of
the bodily injuries sustained by him in the road traffic
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accident that occurred on 09.01.98. It can also be
noticed that injuries sustained by the claimant was
fracture of right forearm bones, fracture of tibia and
fibula of right leg. Even according to PW-2 the doctor
who was examined on behalf of the claimant such
injuries would not lead to death. Thus, the claimant
having been treated for these injuries and he thereafter
having resumed his duties and continued to discharge
his duties for a period of five years and thereafter having
expired it could not be said by any stretch of
imagination that cause of his death was on account of
bodily injuries sustained by him in the road traffic
accident that occurred on 09.01.1998. There is no
other evidence available on record to take any different
or contrary view or to arrive at the conclusion that
cause of death was on account of bodily injuries
sustained by him.
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12. On the demise of the claimant on 05.01.2002
as already noticed hereinabove his wife and children
filed an application to come on record and prosecute the
claim petition which came to be allowed on 14.08.2002
with the observation as extracted already hereinabove.
It has been clearly observed by the tribunal while
allowing the application that “in the absence of any
definite averments that death has occurred as a
result of consequential bodily injuries on the face of
it, the present petition deserves to be dismissed”.
Admittedly the claim petition is not amended and there
is no plea raised in the claim petition that claimant
expired on account of bodily injuries sustained by him.
As such Tribunal has rightly not framed any issue in
this regard for want of pleadings. The question would
be, in the absence of such plea and in the absence of
the nexus between the cause of death and the bodily
injuries sustained by the deceased claimant, whether
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claim petition could have been continued and
prosecuted by his legal heirs.
13. Under similar circumstances, a question arose
as to whether the legal heirs can come on record and
continue the proceedings and said question was referred
to the Full Bench. The question by way of reference
which came up before Full Bench in KANNAMMA’s case
referred to supra reads as under:
“Whether, in a claim petition presentedunder Section 110-A of the MotorVehicles Act, 1939, claiming
compensation for personal injuryresulting from a motor accident as alsocompensation towards expensesincurred and towards loss of incomeetc., if the claimant dies during thependency of the petition, his legal
representative can come on record andcontinue the proceedings?”
14. After analysing various provisions of the
statute, namely, Motor Vehicles Act, their Lordships
have concluded by answering the reference as under:
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“11. However, before answering thequestion referred for decision by the FullBench, one important aspect, which
directly bears on the question, needsconsideration. A person, who hassustained injury in a motor accident, isentitled to make a claim forcompensation for such injury in personor through his/her authorised agent as
provided for under Clause (a) or Clause(c), as the case may be, of Sub-section(1) of Section 110A of the Act. Suchperson or an authorised agent is alsoentitled to make a claim forcompensation for loss of his/her
property in the same motor accident asprovided for under Clause (aa) of Sub-section (1) of Section 110A of the Act,apart and distinct from his/her claim forpersonal (bodily) injury. When theperson making claims for compensation
both for personal injury and loss ofproperty dies, there can be noimpediment for legal representatives ofsuch person to prosecute the claim forcompensation for loss of property assurviving to them. In so far as such
person's claim for compensation forpersonal injuries is concerned, the samecannot, on his/her death, not occurringas a consequence of personal injuries,survive to his legal representativesbecause of the Common Law Rule 'actio
personalis moritur cum persona' foundembodied in Section 306 of theSuccession Act. Then, does suchperson's claim for personal injuries
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survive on his death occurring as aconsequence or result of personalinjuries, to his/her legal representatives,
is the important aspect needingconsideration. Clauses (b) and (c) ofSub-section (1) of Section 110A of theAct, in express terms, entitle the legalrepresentatives of a person who dies asa result of (motor) accident to claim
compensation for such death. A persondying as a result of the accident, cannotmean anything other than the persondying as a result of personal (bodily)injuries sustained by him/her in theaccident. If the death of the person
occurs instantaneously as a result ofsevere bodily injuries sustained by himin the motor accident, there would be noscope for such person's legalrepresentatives to claim compensationfor his/her personal injuries. But if the
death of the person, undoubtedly,occurs as a result of bodily injuriessustained by him/her in the (motor)accident, but belatedly, say, after fourmonths, when still in an hospitalobtaining medical treatment, law
enables his/her legal representatives toclaim compensation under variousheads, such as, expenses incurred forobtaining medical treatment forhim/her, loss of his/her earningbetween the date of accident and the
date of death, pain and sufferingundergone by him/her due to bodilyinjuries sustained. If claim forcompensation under such heads made
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by the person injured or his/herauthorised agent is pending adjudicationeither before the Claims Tribunal or an
Appellate Court, there can be no validreason, as to why, on such person'sdeath, such claim for compensationshall not survive to his/her legalrepresentatives and they be permitted toprosecute the claim as loss suffered by
the estate of the deceased. Claim forsuch compensation made by the personinjured as loss to his/her estate onhis/her death must be regarded assurviving, for even otherwise they wouldbe entitled to make a claim in that
behalf on the death of the person injuredas a consequence of bodily injuriessustained in the motor accident asprovided for under Clauses (b) and (c) ofSub-section (1) of Section 110A of theAct. This would be the correct legal
position, which becomes evident whenseen from yet another angle, to wit, thecause of action for claim forcompensation for personal injuries bythe person injured and the cause ofaction for the claim for compensation for
the death of the person injured as aconsequence of such injuries, by hislegal representatives, is common - themotor accident caused by the tort-feasor. A Division Bench decision of theCalcutta High Court in Piriska Rozaria's
case (supra), AIR 1969 Calcutta 595,which is referred to while examiningKongara Narayanamma's case (supra),1975 ACJ 448, can be said to have given
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recognition to the said position of lawwhen it has held in deciding the casebefore it that a claim for compensation
made under Clause (a) of Section110A(1) of the Act for personal injuriescould be prosecuted on the death of theclaimant by his legal representatives ifsuch death had ensued or occurred as aconsequence or result of the physical
injuries sustained by him in the motoraccident, provided such claim did notcome in conflict with that made by thelegal representatives under Clause (b) ofSection 110A(1) due to death of theclaimant, occurring as a result of the
injuries sustained by him in the motoraccident. It can, therefore, be concludedthat a person's claim for compensationfor personal injuries under the head lossto his/her estate, can, on his/her deathas a consequence of such injuries, be
prosecuted by his/her legalrepresentatives, if they do not include aclaim for compensation under that head,as and when they file a claim petitionunder Clause (b) of Sub-section (1) ofSection 110A of the Act, on the death of
the person injured
“12. In the result, the Full Benchanswers the question referred for itsdecision by the Division Bench, thus: (i)
a claim petition presented under Section110A of the Motor Vehicles Act, 1939, bythe person sustaining bodily injuries ina motor accident, claiming
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compensation for personal injuries asalso for compensation towards expenses,loss of income, etc., (loss to estate)
cannot, on such person's deathoccurring not as a result or consequenceof bodily injuries sustained from a motoraccident, be prosecuted by his/her legalrepresentatives; but (ii) a claim petitionpresented under Section 110A of the
Motor Vehicles Act, 1939, by the personsustaining bodily injuries in a motoraccident, claiming compensation forpersonal injuries as also forcompensation towards expenses, loss ofincome, etc., (loss to estate) can, on
such person's death occurring as aresult or consequence of bodily injuriessustained in the motor accident, beprosecuted by his/her legalrepresentatives only in so far as theclaim for compensation in that claim
petition relates to loss to estate of thedeceased person due to bodily injuriessustained in the motor accident
15. It has been held by the Full Bench that when
a claim petition filed under Section 110-A of the Motor
Vehicles Act, 1939 by a person who has sustained
bodily injuries in a motor accident and claims
compensation for personal injuries, compensation for
expenses incurred, loss of income etc., on such person’s
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death occurring which was not as a result or
consequence of bodily injuries sustained cannot be
prosecuted by his/her legal heirs. However, if a claim
petition is filed by a person sustaining bodily injury in a
motor accident, claims compensation for personal
injuries as also towards loss of income etc., on such
person’s death which “occurred as a result or
consequence of bodily injuries sustained in said motor
accident” it can be prosecuted by his/her legal heirs
only insofar as claim for compensation under the claim
petition which relates to the estate of deceased person
only.
16. In fact said judgment in KANNAMMA’s case
again came up for consideration before another Full
Bench in the case of UTTAM KUMAR vs MADHAV
reported in 2006(1) ACJ 378 and it was held as follows:
“8. In the instant case what is tobe seen is whether there is anyinconsistency between the provisions of
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Section 166 of the MV Act and Section306 of the I.S. Act for the LRs of thedeceased who died as a result of the
accident to claim compensation orpursue their remedies.
9. A bare reading of the aboveSection 166 clearly reveals that in caseof an accident a person who sustains
injury can make application forcompensation before the ClaimsTribunal and if any death has resultedfrom the accident, any or all LRs can bebrought on record and can pursueunder Section 166(l)(c). Hence, in case of
death resultant of the accident the LRsof the deceased can file claim petition.So also it is clear from Section 306 ofthe I.S. Act that cause of action survivesto and against the executors oradministrators of the deceased whose
death is the result of the personalinjuries sustained in the accidentalready stated.
14. On overall consideration andas discussed above, we are in full
agreement with the well reasoned ordermade by the Full Bench since that partwill not say anything regarding Section306 of the I.S. Act and it is notnecessary to go into the observation. Itis also not necessary to go into the
question of fact as alleged by the LRsthat the deceased died due to theinjuries sustained in the accident andthat question can only be considered
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while considering the compensation. Weanswer the reference in the affirmativeand fully approve the earlier Full Bench
decision in Kannamma's case, 1991 ACJ707 (Karnataka) , as stated. Thereference is answered accordingly.Reference is answered.”
17. Thus, agreeing with the view expressed in
KANNAMMA’s case, their Lordships have also held that
a claim petition would be maintainable and can be
prosecuted by legal representatives of deceased
claimant only in the event of claimant’s death occurring
as a result or consequence of bodily injuries sustained
in the road accident and not otherwise.
18. In the background of above case law, it has to
be examined as to whether death of the claimant in the
instant case was on account of the bodily injuries
sustained in the road accident that occurred on
09.01.1998. As already discussed in the aforesaid
paragraphs the death of the claimant was not on
account of bodily injuries sustained by him.
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19. The Full Bench in Kannamma’s case at
paragraph 12 have in categorical terms held as under:
(i) a claim petition presented under Section
110A of the Motor Vehicles Act, 1939, by the
person sustaining bodily injuries in a motor
accident, claiming compensation for personal
injuries as also for compensation towards
expenses, loss of income, etc., (loss to estate)
cannot, on such person's death occurring not
as a result or consequence of bodily injuries
sustained from a motor accident, be
prosecuted by his/her legal representatives”.
20. Thus, claim petition filed by deceased claimant
could not have been prosecuted or continued by his
legal heirs since death occurred after five years from the
date of accident and it was not on account of bodily
injuries sustained by him in the road traffic accident
that occurred on 09.01.1998. The legal heirs would
have been entitled to continue the proceedings only in
the event of such person’s death occurring as a result or
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consequence of bodily injury sustained and could have
claimed compensation in that very claim petition for
loss of estate and not otherwise. Nowhere in the claim
petition it has been contended that deceased claimant
expired as a result or consequence of bodily injuries
sustained by him in the road traffic accident that
occurred on 09.01.1998.
21. Hence, for the reasons aforesaid I am of the
considered view that Tribunal could not have awarded
compensation to the legal heirs of deceased claimant by
permitting them to prosecute the claim petition on his
demise which was not on account of the bodily injuries
sustained by him in the road traffic accident that
occurred on 09.01.1998. In that view of the matter
point formulated hereinabove has to be answered in the
negative i.e., against the claimants and in favour of
appellant.
Hence, following:
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ORDER
1. Appeal is hereby allowed.
2. Judgment and award passed in MVC 313/2003
dated 12.09.2006 by I Addl. Civil Judge (Sr.Dn) &
CJM, Dharwad is hereby set aside and claim petition
is hereby dismissed.
3. Parties to bear their costs.
4. Amount in deposit to be refunded to appellant on
identification.
Sd/-JUDGE
SBN