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L.Rs. of Om Prakash : Smt. Maya and ors. Vs. Mahendra Pal and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtRajasthan High Court
Decided On
Judge
Reported inII(1989)ACC202
AppellantL.Rs. of Om Prakash : Smt. Maya and ors.
RespondentMahendra Pal and ors.
Cases ReferredSampati Lal v. Hari Singh
Excerpt:
- labour & servicesappointment: [shiv kumar sharma, ashok parihar & k.s. rathore, jj] merit list rajasthan secondary education act (42 of 1957), section 28 & rajasthan board of secondary education rules, rule 20 - held, improved marks obtained by candidate after re-appearing in examination can be considered for drawing the merit list of candidate for appointment to post of teacher. circular issued by the director of primary & secondary education ousting such candidate from consideration in merit list is illegal and without jurisdiction. - sections 306 clearly lays down that all demands whatsoever and all rights to prosecute or defend in an action or special proceeding existing in favour of or against a person at the time of his death survive except cause of action for defamation etc......therefore, an application was made by the legal representatives of deceased om prakash before the learned tribunal that they may be substituted as claimants in the claim petition. that application was rejected by the order of the learned tribunal dated 10-12-1984 in to to and it was held that since the action was actio personalis mortiur cum persona therefore, the legal representatives of the deceased cannot be substituted as the action for a personal (bodily) injury died with the death of the person. aggrieved against this, the present appeal has been filed by the legal representatives of the deceased om prakash.3. mr. parihar, learned counsel for the appellant submitted that it is true that the english doctrine actio personalis mortiur cum persona is applicable in the present case by.....
Judgment:

A.K. Mathur, J.

1. This appeal is directed against the judgment and award dated 10-12-1984 passed by the Motor Accident claims Tribunal, Jodhpur.

2. The brief facts giving rise to this appeal are that an accident took place on 1-3-1982 at 6.15 P.M. with the truck bearing No. RJR 7224 which was driven in a rash and negligent manner and it struck against one Om Prakash. As a result of this accident Om Prakash received the following injuries:

(1) Bruise 1.5 cm x 1.0 cm on the Rt. upper lid lot half and adjacent Eye brow.

(2) Lacerated wound 6.2 cm. x 6.2 cm. musseles deep on the lat aspect of Rt. knee joint.

(3) An abrasion 2.0 cm. x 1.0 cm. ent lat aspect of Rt. leg at its middle.

He filed a claim petition before the Tribunal claiming compensation for the aforesaid injuries to the tune of Rs. 75,000/-. While the claim petition was pending, Om Prakash died as a result of heart attack on 19-1-1984. Therefore, an application was made by the legal representatives of deceased Om Prakash before the learned Tribunal that they may be substituted as claimants in the claim petition. That application was rejected by the order of the learned Tribunal dated 10-12-1984 in to to and it was held that since the action was Actio personalis Mortiur Cum persona therefore, the legal representatives of the deceased cannot be substituted as the action for a personal (bodily) injury died with the death of the person. Aggrieved against this, the present appeal has been filed by the legal representatives of the deceased Om Prakash.

3. Mr. Parihar, learned Counsel for the appellant submitted that it is true that the English doctrine Actio personalis Mortiur Cum persona is applicable in the present case by virtue of Section 306 of the Indian Succession Act, but the action so far as it relates to the loss caused to the estate of the deceased will survive and that action will not die with the death of the deceased. In support of his aforesaid contention, learned Counsel has invited my attention to Sampati Lal v. Hari Singh 1985 RLW 220. In that connection, it was observed as under:

The maxim Actio personalis Mortiur Cum persona relates only to the personal or bodily injuries and not to the loss caused to the estate of the deceased by the tort feasor. In this way, this maxim stands considerably abrogated or modified by the provisions of Section 306 of the Indian Succession Act. Sections 306 clearly lays down that all demands whatsoever and all rights to prosecute or defend in an action or special proceeding existing in favour of or against a person at the time of his death survive except cause of action for defamation etc., which come to an end with the death of the injured. The loss to the estate is, thus, not covered by the exception contained in Section 306 of the Indian Succession Act.

4. Therefore, learned Counsel submitted that the claim which was personal to the deceased that will not survive but other claims which relate to his estate that claim cannot die with the death of the claimant. In this connection learned Counsel submitted that so far as the claim mentioned in the claim petition at item No. (a) for a sum of Rs. 33,000/- for mental agony that cannot be tried likewise the claim at item No. (c) claiming a sum of Rs. 20,000/- for disability on account of leg injury that cannot be tried, but rest of the claim namely the amount which has been spent on treatment, medicine, nourishment and other appurtenant to such nature that can certainly be tried.

5. Mr. Bhansali, learned Counsel for the respondents has opposed the request of Mr. Parihar.

6. I have heard both the learned Counsel and have also perused the record. It is true that personal action dies with the person, this principle of Actio-personalis Mortiur Cum persona has been recognized by the Indian Courts also. But the exception is contained in Section 306 of the Indian Succession Act, which saves the action to the extent of loss to the estate of the deceased. This has been laid down by this Court in Sampati Lal's case (supra). Therefore, the view taken by the learned Tribunal that all the actions pertaining to the person prior to his death dies with the person is not correct. Thus, the contention of Mr. Parihar that except item No. 8 (a) and (c) other claims mentioned in the claim petition can still survive and it can be still tried by the learned Tribunal appeals to be correct. Thus, I uphold the contention of Mr. Parihar and hold that the claims raised by the legal representatives of the deceased in the claim petition mentioned therein except item Nos. (a) and (c) can be tried by the learned Tribunal.

7. In the result, I allow this appeal in part and set aside the order of the learned Tribunal dated 10-12-1984. 1 direct that the learned Tribunal may examine the claims mentioned in the claim petition of the legal representatives as amended under order of this Court dated 21-4-1988, the case is remanded back to the Tribunal and the Tribunal may dispose of this matter expeditiously as the case is of the year 1982. The record of the Tribunal may be sent back immediately. The learned Counsel for the claimant-appellants and the learned Counsel for the Insurance Co. are directed to appear before the Tribunal on 27-3-1989.


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