In (Deceased) Satish Chand Sharma vs Manoj, appeal was filed at the behest of the claimant (now deceased) through his legal representatives, challenging the judgment and decree passed passed in 2018 by the Motor Accident Claim Tribunal/Additional District Judge, Court No. 15, Ghaziabad (hereinafter referred to as ‘Tribunal’). The appeal is preferred for enhancement of the compensation awarded under the impugned award.
The Allahabad High Court observed that the accident occurred on 22.2.2005. The claimant was admitted in hospital from the date of accident and, thereafter was discharged. The claimant filed claim petition on 14.9.2005 after being discharged from hospital. On petition being filed, summons were issued to respondents. Though disputed by owner, the respondent No.1-owner was served with the summons on 13.1.2007 as mentioned by the Tribunal in its judgment dated 27.9.2010. The matter proceeded ex parte against the owner namely Manoj Kumar. The owner and driver of the offending vehicle did not appear before the Tribunal. The Insurance Company sought adjournment till 2008 and did not file their reply. The reply one of denial was filed in the year 2009. The evidences were recorded from 2009 to 2010. On 08.07.2010 the Insurance Company was permitted to contest the petition under Section 170 of the Motor Vehicles Act, 1988. The Tribunal passed award on 27.09.2010 in favour of claimant .The Tribunal came to the conclusion that as the owner did not appear it could not be held that the vehicle was insured on the date of accident i.e. 22.2.2005.It is admitted position of fact that though the policy was produced, the Tribunal passed award only against the owner on 27.09.2010 as no other documents were produced. thereby did not hold respondent No.2 Insurance Company liable to satisfy the award and pay the claimant.
Next the claimant preferred execution petition being 34 of 2011 against the owner. Notice /summons came to be issued to the owner but the owner did not respond The owner did not appear before the executing court. The owner appeared after two years namely on 16.4.2013 after issuance of attachment warrant against him,the owner filed application under Order 9 Rule 13 of C.P.C. contending that he was never served with any summons/notice and came to know of the proceedings only when the clerk from the office of Tehsildar came with the warrant and hence filed application before the tribunal to set aside the ex parte decree-as his vehicle was insured with respondent no 2 who would be liable to satisfy the decree. The Tribunal granted ex parte stay of execution of warrant and decree on 25 4 2013. The matter thereafter was adjourned from time to time and as the record shows till 2015 except adjourning the matter no further steps were taken and then came to be listed again on 29.4.2016 namely after six years of passing of the decree. The tribunal allowed the application under order 9 Rule 13 of C.P.C. (against a dead person) on 29.7.2016. This order was passed on hearing the advocate of claimant and directed execution petition to be kept on file. The award was set aside. The matter was adjourned from time to time without any orders. After a period of one year, i.e in the year 2017 heirs of the claimant were brought on record. The Tribunal permitted owner to produce documents so as to prove that the vehicle was insured . The tribunal decided the matter afresh by permitting owner to file written statement.
An application was filed in the year 2018 by the Insurance Company that the original claimant had died and the order passed on the application under Order 9 Rule 13 C.P.C. in absence of the original claimant was bad in the eyes of law as the order passed in the year 2016 allowing the application under Order 9 Rule 13 of C.P.C. was against a dead person. This application was also rejected by Tribunal. The Tribunal and on oral testimony of doctors who had treated the original claimant and on the testimony of original claimant which was recorded earlier, re decided the entire lis and even came to its own finding and even did not grant the full amount of medical expenses which was earlier granted by tribunal of competent jurisdiction. The reason for reducing the claim was that the documents were not proved and that deceased died due to kidney failure and after prolonged treatment passed away.
It is submitted by the counsel for the appellants that the Tribunal was suppose to decide only the liability and not the compensation awarded. The chronology of events would show that the main claimant in his life time had a award and decree passed in his favour and the same had to be executed. The Tribunal on re-appreciation of evidence disallowed majority of the claim amount under the head of medical expenses on the ground that the documents were not proved and granted paltry sum of Rs. 1,19,000/- as medical expenses as against more than twenty lacs spent by the claimant by the time award dated 27.9.2010 was pronounced.
The question before the High Court was whether the approach of the Tribunal in awarding compensation by award dated 29.7.2010 and 4.5.2018 can be sustained.
This decree was sought to be executed against the owner of the vehicle. The difficulty of the original claimant started because the owner of the vehicle did not bring any documents before the Executing Court in his defence but instead of depositing the amount after a period of three years filed an application being Application in 2013 for stay and to set aside the decree qua him. Even without condoning the delay the learned Tribunal on 24.05.2013 stayed the recovery.It appears that the objections raised by the claimants and the insurance company were not considered by the Tribunal while allowing the application to set aside the decree.
It is an admitted position of fact that the petitioner survived for a period of eight years after the accident. It would be necessary to note the fact that the deceased at the time of filing of the petition and on date of decision namely 27.9.2010 was alive. The facts go to show that the claimant was under the constant treatment of doctors till the claimant survived therefore, it can safely be held that the accident caused lot of trauma both to the claimant as well his heirs. There is nexus between the death of the deceased and accidental injury. There is sufficient evidence to the effect that death of the deceased was due to development which took place due to resultant multiple injuries caused by the accident which would show that injuries were the root cause of the death. Therefore, heirs are entitled to compensation. Such was also confirmed by the claimant through oral testimony.
The Court further observed that the death of original claimant during pendency of claim petition his legal heirs being brought on record and where the Tribunal held that claimants would not be entitled to compensation since they have no right to continue the proceedings on the death of original claimant, since action for personal injury abates with the death of original claimant. The question whether maxim "actio personalis moritur cum persona" namely that personal right of action abates with the death of the person, can be imported to a social welfare legislation so as to deny the benefits to legal heirs of a deceased claimant, to the advantage of a wrong doer the High Court held that strict application of maxim "actio personlis mortiur cum persona" cannot be imported to defeat the purpose and object of a social welfare legislation like Motor Vehicles Act. Once the status of claimants as legal heirs or legal representatives is conceded and acknowledged, to deny benefit of compensation to them on the ground that injury was personal to the claimant, it will be giving a premium to the wrong doer and it would defeat the very purpose and object of beneficial piece legislation. The question whether injury was personal or otherwise is of no significance so far as wrong doer is concerned and he is obliged to make good the loss sustained by injured, even after death of injured, claim petition does not abate and right to sue survives to his heirs and legal representatives.
The main purpose for filing the application under Order 9 Rule 13 C.P.C. by the owner was to see that the liability is mulcted on the Insurance Company and not on them. The decree could have been set aside in part namely qua issue of liability as it was a award which could be set aside in part there was definitely severable decree. In this case, Order 9 Rule 13 C.P.C. could not have been made applicable by setting aside the entire decree instead partial modification of decree even in execution could have been resorted to which would have served the purpose of all the litigating parties. Even if during the execution, proceedings it was brought to the notice of the executing court that the vehicle was insured, the liability could have been fastened on the contesting insurance company with whom the vehicle was insured.
The Court held that the documentary evidence,which was placed and that part could have be ordered as expeditiously as possible, may on the first hearing before the Tribunal by directing owner to produce all the documents which were subsequently produced,these facts showed that there were no breach of policy conditions and that part of the finding namely Issue Nos. 2 and 3 could have been severed, reviewed and or Order 9 Rule 13 C.P.C. could not have been made fully applicable. Thus, the judgment under challenge is erroneous. Fresh finding of quantum could not have been given on the same set of evidence recorded in the matter . The order of attachment could have been passed, unfortunately, the Tribunal showed over leniency to the judgment debtor namely the owner and granted indulgence. The Tribunal could have decided the issue regarding the liability only afresh and should have decided what is known as just compensation. The judgment, therefore, suffers from vice of non-application of mind. The basic principles of adjudication of claim petition were absent in both the decisions.
It is settled position of law that the award of the Claims Tribunal shall be paid by owner or driver of the vehicle in the accident and they would be indemnified by insurer or by all or any of them, as the case may be. Thus, we venture to decide the quantum as the claimant was alive when the first decree was passed. However, he has subsequently passed away and therefore, as far as the enhancement is concerned, we would be guided by the provisions of law and the Section 173 of the Motor Vehicles Act which grants statutory right of appeal, will have to be looked into. The powers of the Appellate Court will have to be exercised so as to do justice. It is clear that on the death of the injured pending appeal, the claim will not be liable to be dismissed. The claim can survive to the legal representatives under the possible heads such as medical expenses, loss of income, loss to the estate of the deceased.
The Tribunal committed a mistake rather irregularity by setting aside the award and decree in totality under Order 9 Rule 13 C.P.C. after the death of the original claimant without impleading the legal heirs. The Tribunal further committed an error which is apparent on the face of record by re-deciding the compensation. The only new circumstances were death of the injured claimant and production of documents so as to prove that the vehicle was insured and there was no breach of policy condition.
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