Sridevi (deceased) through LRs. vs Mastak Ahamad and Others

T.N. Vallinayagam, J.—This appeal is directed against the award dated 17.2.1993 passed by the Principal District Judge, Motor Accidents

Claims Tribunal at Dharwad on 12.2.1993 granting a total sum of Rs. 72,000 to the deceased appellant in respect of the accident on 11.3.1987

near Rachoteshwar Temple in Vokkalgeri Oni, Gadag, in which accident the deceased is said to have suffered injuries initially (but succumbed to

such injuries later).

Claiming a total compensation of Rs. 4,00,000, a petition was filed by the deceased Sridevi who was aged about four years at the time of

accident, through her father as guardian alleging that the deceased Sridevi was injured while she was going to the temple by the truck bearing No.

CNB 4373 which was driven by the respondent No. 1. The respondent No. 2 was the owner and the respondent No. 3 was the insurer of the

vehicle. Before the trial court, PWs 1 to 3 were examined and Exhs. P-1 to P-3 were marked and no evidence was adduced on the side of the

respondents. The insurance company contested the claim by alleging that the accident was solely due to the negligent act of the child and not on

account of negligence on the part of the truck driver. Considering the issue regarding negligence, the Tribunal came to the conclusion that the

accident was due to the negligence of driver of the truck bearing No. CNB 4373 and granted a sum of Rs. 12,000 for the expenses incurred by

the father towards treatment of the injured petitioner as against the claim of Rs. 45,000 as compensation. For the general damages, a sum of Rs.

60,000 has been granted. Thus a total amount of Rs. 72,000 was granted as compensation. Aggrieved by the inadequacy of the compensation, the

above appeal was preferred by the injured Sridevi through her father as guardian Mallikarjunayya. During the pendency of the appeal, the injured

child appears to have died and father, mother, sister and brother of the appellant were brought on record as legal representatives.

Mr. Hatti appearing for the appellants contended that the compensation of ''Rs. 72,000 was inadequate. The medical expenses which was

claimed as Rs. 45,000 ought to have been allowed. No amount was awarded for further medical expenses and further treatment of the child. The

grant of global compensation of Rs. 60,000 for pain and suffering, loss of amenities and general damages is on the lower side.

It is also necessary to point out that after the appellant (Sridevi) had died, no additional grounds were raised.

We have considered the submissions made by Mr. Hatti, learned counsel for the appellants and the learned counsel for respondent Nos. 2 and

3.

The first question to be considered is, whether the cause of action survives in respect of injuries suffered by the appellant, for the legal

representatives to continue the appeal. The matter is covered by the decision of the High Court of Delhi in V. Mepherson Vs. Shiv Charan Singh, ,

wherein the learned single Judge has considered the question of abatement of the appeal. This is what has been laid down in that case:

So far as the contention of Mr. Tarun Johri about the claim for damages which was on account of suffering and pain suffered by the deceased, to

my mind, it would abate on the death of the injured. But so far as other claims under other heads are concerned those would not come to an end

on the death of the objector. The right to sue would survive even on the death of the objector. As a matter of fact claims on account of the special

diet, medicine, conveyance, etc., are such which related to loss of property, therefore, right to sue would not abate on the death of the objector. It

would survive to his legal heirs as held by the Punjab & Haryana High Court in the case of Joti Ram v. Chaman Lal 1984 ACJ 645 (P&H).

We are in agreement with the above proposition of law and we hold that the appeal abates so far as claim for damages for pain and suffering is

concerned.

Now we are left with the question of expenses on medicines, special diet, conveyance, etc., and expenses which relate to loss to estate which

would not abate.

On the question of expenses, we find that on the basis of the evidence available on record, the court has granted a sum of Rs. 12,000 as against

the claim of Rs. 45,000 made by the deceased petitioner/appellant before the trial court. Considering the evidence of PW 1, the Tribunal found

that the servant said to have been engaged to look after the child and who is supposed to have been paid Rs. 400 was not proved and no receipt

was filed to evidence any payment of salary of Rs. 400 to the maidservant who is said to have looked after the child at the time of treatment for the

injuries. So far as the special diet and other expenses are concerned, the court below considered the evidence available on record and came to the

conclusion that it would be fair to assume that a sum of Rs. 12,000 would cover the expenses incurred by the father of the petitioner on these

accounts. In respect of the medical expenses said to have been incurred by PW 1, the court below had found that no account has been produced

to substantiate the claim towards treatment of the petitioner nor any account has been given as to how much money had been spent by the father

towards treatment of the injured person. Therefore, on the basis of the materials before the court, the court found that the father has only spent Rs.

12,000 and taking into consideration the claim made, the Tribunal had awarded a sum of Rs. 12,000. The submission made by Mr. Hatti on this

aspect is not convincing and he has not produced any material to show that the claim for Rs. 45,000 made by the father is tenable. On the other

hand, Mr. Hatti was very much particular to claim the expenses incurred during the pendency of the appeal where the injured appellant was treated

for some other disease and to which disease she succumbed ultimately. So long as no nexus is pleaded nor proved by the appellants for the death

to the accident, such an appeal cannot be considered at all. We find a sum of Rs. 72,000 is still available and taking into consideration the facts

before the court, we do not find any reason to interfere with the findings rendered by the trial court. Consequently, the appeal is dismissed. No

costs.