T.N. Singh, J.
1. A tempo ran over an old man. His pelvis bone was broken to pieces. He remained bed-ridden from the date of accident till he succumbed to his injuries. That is the claimant's case, who are the legal representatives of the deceased. The aged widow and his two sons and three daughters are arrayed as main respondents in this appeal. The appellants are theresome -- the insurer, the owner and driver of the offending vehicle. The trio have made a valiant effort to sail in the same boat in this Court with the hope that they may cross the ocean and sink under the boat the liability accrued under the award.
2. Two very important questions of law have surfaced in this appeal for my consideration and decision. Therefore, I would like to place on record my appreciation of the assistance received from the counsel on both sides, who had been given time liberally, almost two hours, to argue their respective cases. I have also told them that even as I am dictating the judgment, if anything strikes them, it would be open to them to ventilate the same for my consideration.
3. First point first, because it concerns the maintainability of the appeal, Shri J.P. Gupta, who appears for the claimants/ respondents, has argued that the first appellant, the insurer, may not be heard as his defences are circumscribed, limited to those inscribed in Sub-section (2) of Section 96 of the Motor Vehicles Act, 1939, for short, the 'Act'. He has seriously contested Shri Dubey's forceful plea that the insurer is 'person aggrieved' within the meaning of the term used in Section 110-D(1) of the Act. His contention is that the mere fact that an award is passed against the insurer, would not make the insurer a 'person aggrieved' unless the insurer could have any grievance permissible under the law. In other words, an 'aggrieved person' must have a legally permissible grievance. The statutory provision of Section 96(2), according to Shri Gupta, has traced the parameters of the grievances that an insurer can legally ventilate at any stage of a proceeding, initiated under Section 110-A of the Act, and nothing beyond that. Reliance is also placed by the counsel on a Bench decision, United India Fire & General Insurance Company v. Gulab Chandra Gupta, AIR 1985 All 44 wherein the question of maintainability of a joint appeal by the insurer and owner of the offending vehicle was agitated. The view taken in that case that the owner and the insurer have different fields of defences is indeed unexceptionable as the provision of Section 96(2) is clear and its mandate is exclusive and inexorable. I do not propose still to go the whole hog to endorse the holding in that case that a joint appeal by the insurer and an owner is not maintainable. I would only say that the insurer's appeal can be heard only within the statutory parameters of Section 96(2). Even if a joint appeal is filed by an insurer, he shall not be denied hearing. He will be heard only on the defences which are statutorily made available to him.
4. Shri Dubey, at this stage, further submits that outside the purview of Section 96(2), there may lie defences which may touch the jurisdiction of the Tribunal. Those may not have been explicitly stated therein but those would still be available to the insurer under general law. It is a very tall and loud claim but it is not necessary for me to draw judicially equally elaborate parameters. However, I may still observe that to any litigant, the question of jurisdictional competence, which is vital to any lis, would be vital to his life and that would be vital also to any stage of the life of the Us, and defence may be taken on the score that the lis at any stage became life-less or it was still-born. Such an objection to jurisdictional competence would not really be a defence in the action and it cannot be statutorily barred and has not been indeed barred expressly under Section 96(2) or under any other provision embraced by Ch. VIII of the Act. Sub-section (2) envisages defences in a validly instituted or continued action : an action which is not still-born and which, before being decided-finally, had not become life-less so that the decision eventually rendered is also not still-born.
5. Shri Gupta, however, contended that the other two appellants need not be heard as they are not 'person aggrieved'. There is much force in this contention and I could not be satisfied by Shri Dubey that the contention lacks merit or force. The facts are evident and the award is clear and oppositive. It positively saddles liability only on the insurer to the total exclusion of the owner. Shri Dubey, at this stage, murmurs an audible submission in the course of dictation. His submission is that though in terms of Section 110-B the Tribunal has specified that the liability under the award shall be wholly satisfied by the insurer because the entire amount of the award is covered by statutory liability of the insurer, the fact remains that primarily the liability is of the owner and only in virtue of the provisions of Section 96(1) of the Act, the insurer is made liable to satisfy judgment rendered against the insured person. That may be so. But, according to me, the owner of the motor vehicle cannot act as a proxy only of the insurer. If he has right to appeal, he must act in his own right. If there is no award against him, in other words, if no amount is specified due payable by him in the award in terms of Section 110-B, he cannot be considered to be a 'person aggrieved' so as to give him the right of appeal as no burden or obligation of any nature has to be discharged by him. He cannot, therefore, have any grievance against the award which does not specify any amount as liability to be discharged by him personally. Unless a person was saddled with any liability in any manner under Section 110-B, he would not be a 'person aggrieved' within the meaning of the term employed in Section 110-D, Merely because there is any finding against the owner of the offending vehicle that the vehicle was driven rashly and negligently giving rise to the claim in tort, it would not be open to the owner to challenge merely the finding if he has no scope to claim any relief against any burden imposed on him. The test really is the question of relief which a person can obtain in appeal, to claim to be an 'aggrieved person' within the meaning of the term used in the statutory provision aforesaid. I must, therefore, uphold the objection of Shri Gupta that appellants Jeewandas and Rejendra Kumar, the owner and the driver respectively of the offending vehicle, have made a misconceived claim to be heard in appeal, which claim, I have no hesitation to reject. I refuse, therefore, to hear Shri Dubey on the merits of the case of the owner and the driver, as to whether there was rash and negligent driving of the offending vehicle. I have no doubt that the award on that account cannot be examined at their instance as they cannot claim any relief in appeal, having no scope to do so, the entire liability under Section 110-B being saddled on the insurer.
6. Now the only question which survives is the question of jurisdictional competence of the Tribunal to entertain the action and/or try the same and pass the impugned award on which, as alluded earlier, I have to hear the insurer. I am not disposed to hear him on any other point and indeed, in this case, Shri Dubey has rightly conceded that the defences which are open to him under Section 96(2) are not invoked. He has merely challenged the competence of the Tribunal to pass the impugned award, because it is hit by Section 306 of the Succession Act and is also additionally hit by the Common Law maxim, actio personalis moritur cum persona. The relevant facts, necessary to consider Shri Dubey's contention, may be stated briefly before examining its legality or validity. Deceased Munnilal Agrawal, at the time of accident, which took place on 3-5-1980, filed the application under Section 110-A of the Act on 31-10-1980, during his lifetime, for injuries suffered by him. He claimed compensation from the insurer and the owner of the offending vehicle in the sum of Rs. 1,77,000/-He died on 17-1-1981 and the present claimants, his heirs and legal representatives, were brought on record in the Tribunal on 10-11-1981. The impugned award was passed in their favour on 25-2-1983. Shri Dubey contends that the action for the personal injury, died with Munnilal and it did not survive to his heirs and legal representatives. Thus, a life-less action was tried and the award is still-born. His second contention is that even if the present claimants could get anything, they could, at the most, get what Munnilal could himself have claimed and got. They were not entitled to get anything for the death of Munnilal and as such, that part of the award, by which the claim of dependency of the claimants was allowed, must be set aside.
7. It may apposite at this stage to refer briefly to the format of the award. In so far as the different heads of the claim are concerned, the question was tackled under issues Nos. 7 and 8 and the Tribunal held that the claimants were entitled to be awarded compensation on the following counts :
(a) For pain and suffering caused to thedeceased : Rs. 10,000/-
(b) For medical and other expenses :
Rs. 4,000/- (c) For loss of dependency, calculated atthe rate of Rs. 3000/- per year for a period of8 years : Rs. 24,000/-
A sum of Rs. l,000/- was. awarded as counsel's fee and interest at the rate of 9% was also awarded from the date of application till the date of payment.
8. Shri Dubey has cited case-law and has relied thereon extensively. He has also relied on illustration (i) of Section 306 aforesaid, which I quote :
'(i) A collision takes place on a railway in consequence of some neglect or default of an official, and a passenger is severely hurt, but not so as to cause death. He afterwards dies without having brought any action. The cause of action does not survive.'
I would immediately say that I read nothing in the provision afore-quoted to hold that the claimants could be Validly non-suited. Indeed, I have emphasised the relevant portion of the illustration to explode the myth on which voluminous arguments have been made. The provision, in my view, does not deal with situation as is presented by the facts of the case in hand. The very fact that the present claimants were impleaded during the course of the proceedings already initiated in his lifetime by their predecessor-in-interest, as per illustration (1), takes the present case out of Section 306. In fact, the provision is enabling, to save; not to kill any action initiated. Indeed. I find that an exception is carved out to deal with 'causes of action' that do not survive in cases, inter alia, of 'personal injuries not causing the death of the party'. In the main enactment itself, to limit its operation, the exception was engrafted. Nothing beyond that can, therefore, be read into the provision. The intent of the main enactment is definitely affirmative, positive and enabling in that it saves 'all rights to prosecute or defend any action' which are available to a person at the time of his demise. However, scope of exception is rather relevant for the instant case and importance must be attached to the words 'not causing the death' because in virtue thereof, the exception, according to Shri Gupta, is not applicable to the instant case, for, Munnilal died as a result of the injuries sustained by him in the accident.
9. Something has been said in Girjanandini, AIR 1967 SC 1124 on the Common Law maxim afore-quoted. The decision is pressed in service by Shri Dubey, but I wonder if it advances his cause. For, their Lordships, in positive and affirmative terms held that the maxim operated in limited class of actions ex delicto. That was a case concerning a claim for rendition of account, which was held not to be a personal claim and not hit by the maxim. The decision in Baboolal, AIR 1952 Nag 408, concerned an action in damages for defamation. It was held that unless the right of such an action was saved by the Statute, the remedy was lost with the death of the person defamed or injured. Ratanlal, (AIR 1960 Madh Pra 200) was a case of damages caused by wrongful act of trespass. The decision in this case was rather that the action was maintainable because it was not an action for personal injury as defined in Section 306 of the Succession Act. Bench decision of Karnataka High Court in Section Muniyappa, AIR 1984 Kant 63 is also pressed in service. It was held that an appeal by the claimant for enhancement of the compensation granted by the Tribunal did not survive his death. The claimant had suffered personal injuries in the motor accident and died during the pendency of the appeal. At para 22 of the judgment, it is however stressed that the English maxim does not hold the field in India as the Courts in India are bound to modify the same in the light of principles of justice, equity and good conscience. The appeal was dismissed because, according to their Lordships, Section 306 of Succession Act mandated such a course. The decision is evidently distinguishable on facts though I have my reservation on the interpretation of Section 306 on which I hold different views, as already stated earlier.
10. Several other cases were also cited but counsel contends, and indeed concedes, that a recent decision of the Rajasthan High Court has considered those decisions. The case is of Sampati Lal, which is reported in (1985) 2 ACC 467 : (AIR 1985 Raj 174) and which has considered the decisions of Bombay, Madras, Andhra Pradesh and Punjab & Haryana High Courts, to which reference was made by Shri Dubey in the course of hisargument. The view taken by the learned single Judge of Rajasthan High Court in Sampati Lal (supra) is that because there was no loss to the estate of the injured, the claim for injury sustained by him during his life time did not survive and pass on to his legal representatives if the injured died during the pendency of the appeal. However, what I read in para 14 of the judgment is rather significant because it was held that the Tribunal had wrongly applied the doctrine of Actio personalis moritur cum persona to the facts of this case and in the result, the appeal was allowed and the case was sent back to the Tribunal to continue the proceeding further, holding that the death of the injured did not rob his heirs and legal representatives of the right to continue the same. 1 feel disposed, therefore, to read obiter the view earlier referred, on which much stress was laid. I need not consider other decisions cited except a Bench decision of Patna High Court, on which strong reliance was placed by Shri Dubey. It is the case of Jogindra Kuer, AIR 1964 Patna 548 wherein the question arose about substitution of heirs and legal representative of the claimant in terms of Order 22 Rules 1 and 11 and Order 1 Rule 3 and 9, C.P.C. In so far as their right to damage caused to . the property was concerned, the right of the heirs and legal representatives of the deceased claimant was upheld. But, invoking the Common Law maxim aforesaid, one part of their claim was held not maintainable. More about this case when I refer to the decisions cited by Shri Gupta.
11. Case-law galore came also from the other side. I would, however, refer immediately to the Bench decision of the Calcutta High Court, wherein Jogindra Kuer (supra) was considered, but distinguished. It was held by their Lordships in Piriska Rozario, AIR 1969 Cal 394 that the sole repository of the rights of the parties in such a case is the statutory provision of the relevant Code itself, namely, the provisions enacted in Section 110-A of the Act. Primacy must be attached to statutory provision and not to the maxim which has not been recognised in India except to the extent it is saved or recognised in Section 306 of the Succession Act. The view I have taken on interpretation of Section 306 does find support from the observations of their Lordships in para 8 of the judgment. I would like to add that the provision of Section 110-A must prevail against Section 306 of Succession Act in a case where the two cannot be harmonised as the Claims Tribunal constituted under Section 110 of the Act is primarily governed by, and is obligated to follow, the provisions and mandate of Ch. VIII of the Act. I .have no hesitation, therefore, to say that the view expressed in Calcutta case has to be accepted as the more reasonable view, to be preferred to Patna view which has overlooked the provisions of Ch. VIII of the Act.
12. Accordingly, I agree and accept, as also contended by Shri Gupta, that the answer to the question has to be, and can be, found in the statutory provision itself. Clause (b) of Section 110-A( 1) of the Act enables application for compensation being made in a Claims Tribunal constituted under the Act where death has resulted from a motor accident and such applications can be made by or on behalf of his legal representatives. I have no doubt that the right to institute an action would include the right to continue such action and would immediately say, therefore, that if Clause (b) applies to the facts and circumstances of the case, then Shri Dubey's client the insurer, must be out of Court. It is not necessary, therefore, to discuss or refer to all the other decisions cited by Shri Gupta. Nevertheless, I may refer still to few of them to buttress my conclusion. The Calcutta view was accepted in Maharani Dey, AIR 1983 Gauhati 84 wherein the interpretation of Section 306 aforesaid, as also of the extent of the Common Law maxim aforesaid delineated in Piriska (AIR 1969 Cal 394) (supra) found favour with the Court. It was also a case of substitution and the Court held that the deceased claimant's legal representatives could be validly impleaded and duly substituted in his place and application for the purpose was allowed though the claim was preferred by the deceased four years after the accident. The view of the Andhra Pradesh High Court, as projected in the case of Kongara Narayanamma, 1975 Acc CJ 448 is also in line with the view expressed by the Calcutta and Gauhati High Courts. Piriska (supra) was referred to and relied on and following the reasoning of the said decisions, Court rejected the objection to substitution by invoking the provisions of Section 110-A of the Act and also holding that the objection could not be sustained on the basis of illustration (i) appended to Section 306, Succession Act.
13. I have no doubt at all, and it is also not seriously challenged by Shri Dubey, that even under the Common Law maxim, award for pain and suffering which was caused to the deceased, was not without justification because that claim survived to his heirs and legal representatives. However, Shri Gupta has drawn my attention to para 109 of Vol. 28 of Halsbury's Laws of England, Third Edition, wherein the position of law as obtains today in England is succinctly summarised. According to Halsbury, not only damages may be awarded for pain and suffering actually undergone by the deceased, but also for loss of a limb and for shortening of expectation of life, besides loss of personal property. If that is so, where stands t he majesty of the Common Law maxim? If much water has flowed down the river Thames, more has flowed down the Jamuna or the Chambal in this country during Republican era as Motor Vehicles Act, amended in 1956, makes effective measures to grant relief to victims or vagaries of science and technology, as behoves a welfare State, conforming to the constitutional mandate of Articles 38 and 39A. At this stage, Shri Dubey reminded me that I should at least refer to the decision cited by him concerning this point. It is Maharani Chopra's case, 1985 Acc CJ 665 : (1985 All U 88} wherein a Division Bench of the Allahabad High Court took the view that compensation was awardable to the legal heir of the mother only for the period for which she was alive. I would only say that 1 am unable to subscribe to this view for reasons earlier stated.
14. It is necessary for me now to investigate facts to come to the conclusion as to whether in terms of Clause (b) of Section 110-A(l), it could be said that death in the instant case resulted from the accident. Because, I have taken the view that paramount consideration must be attached to the relevant statute and further that the instant case is not covered by the provisions of Section 306, Succession Act and is also not hit by the Common Law maxim. I may only add that my enquiry will also demonstrate, as earlier alluded, that the instant case is outside the purview of the 'exception-clause' of Section 306 of Succession Act as the injuries caused to Munnilal resulted in his death. Counsel has drawn my attention to relevant portion of the evidence, but I must first refer to the findings of the Tribunal. Shri Gupta has read out to me the relevant findings, which are couched in affirmative and positive terms, in paras 16,17,18,19,21 and 23 of the impugned judgment. Claimant's witness Dr. Gaur's evidence was accepted by the Tribunal. He deposed that Munnilal suffered a compound fracture of the pelvis with the result that it was split into three. The X-ray plates (Exs. 8 and 9) were proved by him and he also proved that Munnilal had to undergo operation for the same. What is more to be found in his evidence is that although Munnilal was discharged from the hospital on 15-7-1980, he was attended at his residence for several complications. It is the evidence of Dr. Laha that on 7-1-1984, he went to Munnilal's house and saw him there. He was unable to make any movement from his thigh and below and he was found by him in a very poor state of health. The Tribunal also relied on the evidence of Om Prakash deceased's son, who stated that between the date of accident and his death, his father was unable to make any movement and was in great agony. These are the broad features of the evidence and findings, but I propose now to refer to the evidence, on which Shri Dubey has relied.
15. Counsel has drawn my attention to some portion of the evidence of P.W. 3 Dr. B.S. Gaur and P.W. 5 Dr. P.N. Laha, but the focal point of Counsel's concern and reliance is found in para 12 of former's evidence, which, to do justice to the counsel, I better quote :
'October ke bad Munnilal ko maine nahin dekha....... October ke bad Munnilal ko mainenahin dekha....... October ke bad maineMunnilal ko nahin dekha Munnilal ki mrutyu ka karan yen chot tatha usse utpanna complication se ho sakti hain yen main nischit nahin kah sakta....... uski mrutye ka vastavikkaran kya yeh mujhe nahin malum.
However, it appears that it was suggested to this witness that Munnilal was suffering from diabetes and that he was also a patient of heart disease. It has not been proved that death took place either because the deceased was diabetic or that he suffered from heart disease even though it is in the evidence of this witness himself that deceased Munnilal was diabetic. However, the focal point of reliance of counsel in the evidence of P.W. 5 (Dr. P.N. Laha) in para 6, which I would extract in extenso.
'Main private practice karta hun. Bhukh samapta hone ka vast vik karan kya tha main nahin kah sakta. Bhukh samapta honeka ek karan manovaidnyanik bhi ho sakta hain. Takhne tatha ghutane se sari pranali bhang hone ka karan Madhumeh bhi ho sakta tha. 16-1-81. Ko uski halat gambhir thi yeh bat main nischit rupse nahi kah sakta. Phephade ki bimari ka sambandha pair ke fracture se thea phir kaha ki main nischit rupse nahin kah sakta. Ayonki maine to pair ki chot lagne ke sade panch man bad maine dekha tha. Maine jo bimariyon ke lakshan Munnilal me dekhe the us fracture ke karan the aisa main nahin kah sakta, Ayonki yah lakshan fracture se ho bhi sakte hain aur kisi anya karan se bhi ho sakte hain'.
16. That is all I have to say on Shri Dubey's side. But, I must also refer to the evidence on which Shri Gupta has relied. At para 9 of his evidence, P.W. 3 Dr. B.S. Gaur, in his cross-examination, deposed that if the patient had not been injured and there had been no complications, there was no danger to his life. He has given a detailed version of the injury and the suffering which Munnilal had to undergo and this is to be read in para 2 of his evidence. It is not necessary for me to discuss other evidence in the case except the evidence of P.W. 1 Om Prakash, who was the best person to depose about the cause of death of his father as he was all the time on attendance on him although Shri Dubey submits that he is an interested witness also because he tried to conceal the facts that his father was a diabetic though this fact is disclosed in the evidence of the physicians. In para 7 of his evidence, he has said that ever since his father suffered the injury in the accident, he could stand and he reeled in agony all the time, even at night. It is his evidence that there was no intervening cause, leading to his father's death; the immediate cause for his death being the accident.
16A. At this stage, I may only say two things to meet Shri Dubey's objection as regards the trial Court's finding. Firstly, I would say that the maxim falsus in uno falsus in omnibus has no application in India and as such, a witness cannot be branded liar and his evidence discarded on the sole ground that a part of his testimony was not reliable. Secondly, I am reminded by the highest judicial mandate in Sarju Prasad, AIR 1951 SC 120 and Madhusudan, AIR 1983 SC 114 wherein, it has been held that primacy must be attached to the trial court's opinion on the credibility of the witness and the appellate Court must be very slow in discarding evidence of any witness in appeal if he was found reliable by the trial Court and if his testimony was accepted. Therefore, I see no reason to reject the testimony of P.W. Om Prakash, though he happens to be the son of deceased Munnilal 1 would accept his evidence and should hold not only on his evidence, but also on the evidence of the doctors, that in the instant case, it has been established that Munnilal, who died on 17-1-1981, after eight months of the accident, succumbed to the injuries he suffered in the accident as no immediate cause other than the injuries has been proved. It was suggested that Munnilal's death took place due to either diabetes or due to the fact that he was a heart patient, but it has not been proved.
16B. On the basis of the above finding, which is also the finding of the Tribunal, I have no hesitation at all to say that Clause (b) of Section 110-A of the Act repeals the contention advanced by Shri Dubey that the legal representatives of deceased Munnilal could not pursue the action initiated by him or that they were not entitled to be compensated for the loss of dependencey.
17. Lastly, a few words only on the question of quantum. Shri Dubey submits that on account of pain and suffering, the award of Rs. 10,000/- was excessive. It is also his submission that for loss of dependency, evidence is meagre and I should reappraise the evidence. To both contentions, I have a single answer. I say with all emphasis at my command that if the award is erroneous, the error hits the claimants, not appellants. The award is too low to warrant any interference. But, the main point is, as earlier alluded, this objection is not at all available to the insurer. He is not at all entitled to challenge the quantum of the award. My burden was merely to test the validity of the award on the question of jurisdictional competence and I have taken some pain with the assistance of the counsel, to deal the objection in detail, although to reject the same eventually.
18. In the result, the appeal fails and is dismissed without much ado. The claimants are entitled to their costs in this Court also, which I quantify at Rs. l,000/- Shri Dubey submits that the costs awarded are very high, but I say that I have awarded only moderate costs. Shri Dubey further emphasised that I am bound by the 'Schedule' of costs as per this Court's Rules, but I have replied him that I am not so bound. My powers are very wide under Sections 110-C and 110-D, which enable me to quantify costs out of the 'Schedule' which apply only to regular appeals under C.P.C. and not to appeals under Special law. On the question of award of interest also, there is a valid grievance and I must take care of that too. Shri J. P. Gupta has not to labour hard for that as he has only to sing the tune this Court has set in Shantibai, (1986) 1 MPWN 54 which has found light and support in Narchinva, 1985 Cur Civ LJ (SC) 746 : (AIR 1985 SC 1281) wherein interest was awarded by the Apex Court also at the rate of 12% but from the date of accident till payment. There was a further direction in that case, requiring full payment of the awarded amount to be made within two months.
19. Accordingly, following Narchinva (supra) as also Shantibai (supra), I modify the award to make it conformable to judicial mandates and direct that interest shall be payable at the rate of 12% from the date of application till the date of payment. I have said that the liability of interest shall accrue from the date of application because I am reminded by Shri Dubey of the statutory mandate inscribed in Section 110-CC which, in clear terms, envisages that 'simple interest', shall (also) be paid at such rate and from such date not earlier from the date of making the claim'. I am one with him to abide by the mandate and I uphold his contention. However, I make a further direction that the entire amount due under the award, less payment already made, has to be disbursed to the claimants within a period of two months from today.
20. Shri Dubey has made a holy prayer at the end of his unholy adventure, it is his prayer that a direction for immediate delivery of certified copy be made so that he may arrange for immediate disbursement to the claimant of the amount awarded by this Court. Let Registry ensure that the application for copy filed by him duly attended and he is duly supplied the same within seven days of its receipt.