INJURED/CLAIMANT DIED
PENDING APPEAL FOR ENHANCEMENT – ENTITLEMENT OF LEGAL REPRESENTATIVES OF
DECEASED TO ENHANCEMENT OF COMPENSATION IN MOTOR ACCIDENT CLAIMS.
Death of injured claimant pending
appeal for enhancement for compensation, entitlement of legal representatives
to proceed with appeal for enhancement – scope and extent – insurer contending
that in appeal when appellant / injured claimant died pending disposal, LR’s
not entitled for enhancement as tribunal awarded compensation for personal
injuries, pain and suffering, etc. – LRs. Once step into shoes of claimant,
entitled to award amount which deceased claimant would have recovered – Award amount
forming part of the estate of deceased to be treated as estate of LRs. –
supreme court in Venkatesan relied upon – compensation as awarded under
different heads covered by head “loss of estate” – Therefore, LRs. Entitled to
enhancement.
This aspect has been discussed in 2020(1)
TNMAC 67, Madras high court in K.Ramesh VS M.Natesan.
The brief of the case are as follows:
On 12/6/2000 at 6 am, the petitioner
along with his two friends were proceeding in a hero Honda motorcycle from
Thiruvarur to Thanjavur. The said motorcycle
was ride by the petitioner in a slow and cautious manner. By that time
near Nagapattinam – Thanjavur road, a tanker lorry bearing regn.no. SR 46 7383
driven by its driver, came in a rash and negligent manner and hit against the
motorcycle, as a result, the petitioner who ride the motorcycle and his friend
namely Ashok kumar were thrown away, both sustained serious injuries. For the
said injuries, the petitioner was given treatment in various hospital and he
took treatment as inpatient. He also sustained disability, which resulted him
the inability to continue his profession as teacher. Hence, the petitioner has
claimed a sum of Rs.25,00,000/ as compensation.
The 2nd respondent
insurance company in his counter statement has stated that whether the driver
of the tanker lorry was having a valid and effective driving license and having
insurance with this respondent at the time of the accident is in question and further
stated that the said accident had occurred only due to rash and negligence on
the part of the petitioner, who ride motorcycle. It is further stated that the
petitioner was not in possession of valid license for riding two - wheeler. It
is further stated that the compensation claimed by the petitioner is excessive,
since his monthly income was only Rs.9,975/
The tribunal upon analyzing the
documents and evidence placed by both sides, has given a finding that the
driver of the tanker lorry is responsible for the accident because of his rash
and negligent driving and dashed against the petitioner, who was riding the two
– wheeler, which resulted in causing severe injuries and disability to the
petitioner. The tribunal has awarded a sum of Rs.2
lakhs as compensation under various heads based on the documentary and oral evidence.
Aggrieved against the said judgement
and decree, the claimants have preferred this appeal for enhancement.
In the grounds of appeal it is stated
that the tribunal ought to have seen that the claimant was working in a
training college as lecturer and was earning Rs.10,000/pm. Due to the accident,
the claimant has suffered permanent mental impairment, which disabled him from
working further on account his loss of short term memory. It is further stated
that the tribunal ought to have awarded a sum of Rs.12,85,000/ under loss of
earning power. The tribunal without considering the fact that the claimant is a
master degree holder whose memory was seriously impaired due to the accident,
has awarded a sum of Rs.75,000/ towards permanent disability. The tribunal has
also not awarded the sum for nourishment and the expenses incurred for engaging
the assistant to attend his basic needs. The claimant was in intensive care
unit for 2 months.
It is also argued by the appellant
that after preferring the appeal, the claimant died and hence his legal heirs were
brought on record as appellants as they are eligible for getting enhancement of
award amount.
On the other hand, the learned
counsel for the Respondent has argued that the claimants has preferred the
claim application for the disability and for the loss of earning capacity, pain
and sufferings, mental agony suffered by him because of accident and once he
died, the legal heirs are not for enhancement of the sum for the personal
injuries sustained by the deceased.
The learned counsel for the appellant
has referred a judgement reported in the case of Benham vs
Gambling,1942 (1) ALL ER 7,wherein it is observed as follows:-
“If an individual is injured by
accident due to the negligence of another person, the claim for damages no
longer abates at his death, but survives for the benefit of his estate, and can
be enforced in an action brought by his personal representative against the
negligent defendant, or against the defendant’s personal representative, if the
defendant has died…”
It is argued by the respondent that
the appellant is an injured claimant, who died pending disposal and hence the
legal representatives are not entitled for enhanced compensation, since the
tribunal has awarded for pain and sufferings and for other head that was
suffered by the deceased, hence the appellants are not entitled to prefer
appeal for enhancement of compensation.
On the other hand it is argued by the
appellant that the principle of maxim “Actio personalis moritur cum persona” is
only to personal and abatel injuries and not to the case of loss of estate of
the deceased by the tactizer. But the provisions of section 306 of the Indian succession
act provides the demands and rights of action of or against deceased survive to
and against executor or administrator, except cause of action for defamation,
assault, as defined in Indian penal code (45 of 1860) or other personal
injuries not causing the death of the party.
The appellants to substantiate their
claim for loss of estate, has cited the judgment reported in a case of
Venkatesan (deceased) and another VS
Kasthuri and others. 2013 (1) TNMAC 723. The relevant portion of the judgment
is as follows:
“Under these circumstances, in my
opinion, the claim regarding damage on account of pain, suffering and mental
agony to the deceased will not survive but the claim regarding loss to the
property will survive and the appellants are entitled to continue the
proceedings”
“ At this juncture it is relevant to
note that the legal representatives are entitled to receive the award amount
awarded, which form part of the estate of the deceased. As there is award against
the insured as well as the insurer, the legal representatives step in to the
shoes of the claimant and are entitled to the amount, which the deceased
claimant would have recovered and said amount would be treated as estate of the
legal representatives. In the light of the views expressed by this court
referred to above, this court is of the
considered view that the legal representatives of the injured claimant are
entitled to the above said award amount as loss to the estate.
On the side of the respondent it is
argued that while considering the claim of loss of estate only certain heads of
claim can be allowed. On perusal of the documents and records, it is observed
that the person, who was a prime earning member of his family, has become dependant
to his family due to loss of income. When a person sustained severe injuries
and was under treatment for a long time, who could spend such medical expenses.
Since loss of estate may also arise,
if the existence estate suffer loss by application of money towards medical
expenses, transport charges, pain and sufferings, nourishment attendant
charges, etc., the sum awarded under the said heads also cover under the head ‘loss
of estate’ , therefore the arguments of the respondent / insurance company that
the appellants are not entitled for compensation under the other heads except
loss of estate cannot be considered.
‘
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