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Judgment
R. Banumathi, J.—Being aggrieved by the award of compensation of Rs. 79,000/-, State Transport Corporation (S.T.C) has preferred this
appeal.
Brief facts which are necessary for disposal of this Appeal are as follows:- On 28.09.1996 the injured Claimant Kanagasabai was travelling in
the bus bearing registration No. TN-32-N 0551. When the bus was nearing Kannarapettai, driver of the bus drove the same in a rash and
negligent manner and the bus was capsized and the injured-Claimant has sustained lacerated injury in left nostril, abrasion in forehead and fracture
of nasal bone. After the accident, the injured-Claimant was admitted in Government Head quarters hospital, Cuddalore where he had taken
treatment for four days. Thereafter, he was admitted in a private hospital at Cuddalore where he had taken treatment. Alleging that the accident
was due to rash and negligent driving of the bus by its driver, the injured-Claimant has filed Petition claiming compensation of Rs. 1,00,000/-.
Opposing the claim, S.T.C. has filed the counter stating that on 28.9.1996 the bus was crossing Kannarapet bus stop, the driver of the bus to
avoid hit against the pedestrain suddenly swerved the bus, but it hit against the road side palmyrah tree and stoped. Since the accident was not due
to the fault of S.T.C. bus driver and the accident was an inevitable one, S.T.C. is not liable to pay compensation.
After filing the Claim Petition, the Claimant Kanagasabai died on 23.10.1999 nearly three years after the accident. His legal representatives
were brought on record. The son of the injured-Claimant was examined as P.W. 1. Eye witness-son-in-law of the injured-Claimant was examined
as P.W. 2. Exs. P.1 to P.17 were marked. The driver of the bus was examined as R.W. 1. Upon consideration of oral and documentary evidence,
Tribunal held that the accident was due to rash and negligent driving of the bus driver.
Before the Tribunal, Claimants have taken plea that the death on 23.10.1999 was due to the injuries sustained by the injured-Claimant in the
accident on 28.9.1996. The Tribunal has held that the Claimants have not proved that death was due to the injuries sustained by the injured-
Claimant in the accident. However, observing that the Claimants as legal representatives of the deceased Kanagasabai are entitled to
compensation, Tribunal has awarded Rs. 79,000/- under the following heads;
Permanent Disability ... Rs. 25,000/-
Pain and suffering ... Rs. 5,000/-
Transport charges ... Rs. 1,000/-
Loss of earning power ... Rs. 45,000/-
Extra nourishment ... Rs. 3,000/-
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Total ... Rs. 79,000/-
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Assailing the findings of the Tribunal and quantum of compensation, the learned Counsel Ms. S. Geetha, appearing for the Appellant-
Corporation has submitted that the Tribunal has erred in awarding Rs. 25,000/- towards the injuries sustained by the deceased to the Claimants
who are the legal representatives. It was also submitted that award of Rs. 5000/- for pain and suffering to the injurd-Claimant and Rs. 45,000/- for
loss of earning power of the deceased and awarding such amount to the Claimants who are the legal representatives of the deceased is against the
well settled principles. The learned Counsel for the Appellant-Corporation has submitted that in any event the Claimants would be entitled to only
an amount actually spent from and out of the estate of the injured-Claimant and nothing more than and therefore, Rs. 79,000/- compensation
awarded by the Tribunal has to be reduced to the amount actually spent by the injured-Claimant and loss to the estate.
Placing reliance upon I (2008) ACC 341 Narasimha and Anr. v. Annapurna and Anr., the learned Counsel Mr. R. Sathiyakumar, appearing for
the Claimants has submitted that the Claimants being the legal representatives of the deceased are entitled to the compensation awarded to the
injured-Claimant. It was further submitted that though the injured-Claimant died and the sons and daughter of the deceased being the legal
representatives are entitled to continue the Claim Petition and claim compensation.
It is not necessary to narrate the entire facts in detail as to how the accident had occurred, who is responsible for the accident and who is liable
to pay the compensation. It is for the reason the Tribunal has recorded the findings in favour of the Claimant. Further, these findings are not under
challenge. Only the quantum of compensation is in dispute.
The short point falling for consideration is whether the legal representatives of the injured-Claimant Kanagasabai are entitled to compensation for
pain and suffering and for the injuries and permanent disability of the injured-Claimant and loss of earning power.
The learned Counsel for the Claimants tried to pursuade the Court submitting that though the death was on 23.10.1999, the death was due to
the injuries sustained by the injured-Claimant in the accident on 28.9.1996. Viewed in the context of evidence of P.W. 1, the above contention of
the Claimants does not merit acceptance.
The accident was on 28.9.1996. At the time of accident, the deceased was aged 58 years. The injured-claimant died on 23.9.1999, nearly
three years after the accident. Admittedly, no post-mortem was conducted. In his evidence, P.W. 1 has categorically stated that the death of his
father was a natural death and therefore no autopsy was conducted. As rightly pointed out by the Tribunal, in the amendment application also, the
Claimants have not alleged that the death was due to the injuries sustained by the injured-Claimant in the accident or that the injuries accelerated
the death of the injured-Claimant. In the absence of any cogent and convincing evidence, it cannot be said that the death was directly attributable
to the injuries sustained by the injured-Claimant in the accident. The findings of the Tribunal that the Claimants failed to show that death was due to
injuries sustained by the Claimant in the accident is unassailable.
Though, the Tribunal has observed that the death was not due to the injuries sustained by the injured-Claimant in the accident, Tribunal has
proceeded to award compensation for pain and suffering, loss of earning power and for injuries. When the injured-claimant died, the compensation
under the heads viz., pain and suffering, loss of earning power and for injuries will not survive. But the claim regarding loss to the property will
survive and the Claimants are entitled to compensation to the loss caused to the estate.
In Thailammai v. A.V. Mallayya Pillai 1981 ACJ 185 (Mad), it was held that the cause of action in respect of damage to estate of the
deceased survives and passes over to his legal representatives. In Joti Ram v. Chaman Lal 1984 ACJ 645 (P & H), a Division Bench of Punjab &
Haryana High Court took the view that the right to sue survives to the legal representatives of the deceased-injured in respect of claim on account
of the loss to estate. On a careful consideration, I find myself in complete agreement with the views expressed in the above two cases. I am,
therefore, of the opinion that if the claim under the Act also relates to the estate of the deceased, the action survives on the death of the claimant
and passes over to his legal representatives.
As rightly submitted by the learned Counsel for the Appellant-Corporation, the Claimants would only be entitled to the medical expenses,
transport charges and extra nourishment, for which an amount would have been spent from and out of the estate of the deceased. As per Ex. P.9
the deceased appears to have spent Rs. 4,890.49 for medical expenses and the same is to be allowed. The figure is rounded to Rs. 5,000/- and
Rs. 5,000/- is awarded for medical expenses. As per Ex. P.17 for transport charges Rs. 1,000/- is to be awarded. The injured-Claimant had
taken treatment for few days and therefore for extra nourishment and for attendant charges, awarding of Rs. 10,000/- would be just and proper.
The Claimants-legal representatives would thus be entitled to Rs. 16,000/- only.
In the result,
The Order of the Additional Subordinate Judge, Motor Accident Claims Tribunal, Cuddalore dated 08.04.2002 passed in M.C.O.P. No. 774 of
1997 is modified and this C.M.A. is allowed in part.
The compensation amount of Rs. 79,000/- awarded by the Tribunal is reduced to Rs. 16,000/-
It is stated that the Appellant-Corporation has deposited the entire compensation amount along with accrued interest. From out of which, the
Claimants are said to have withdrawn 50% along with accrued interest.
It is ordered that the Appellant-Corporation shall not proceed to recover 50% of the amount along with accrued interest withdrawn by the
Claimants.
The excess amount lying in the credit of M.C.O.P. No. 774 of 1997 along with accrued interest shall be refunded to the appellant-Corporation on
necessary application.
There is no order as to costs in this Appeal.