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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