Here in this case, the claimants, as legal heirs and representatives, have filed a subsequent claim petition while the original was still pending, the right to sue arose on the death of the original claimant and survived on the date when subsequent claim petition was filed. As was held in the case of Surpal Singh (supra), maxim action personalis mortiur cum persona cannot be imported to defeat the purpose and the object of a social welfare legislation of the M.V. Act to give advantage to the wrong doer. Once the status of the claimants as legal heirs or legal representatives are conceded and acknowledged, to deny benefit of compensation, on the ground that injury was personal to the claimant, will be giving a premium to the wrong committed, which would itself defeat the very purpose and object of the legislation. The subsequent petition was filed at the time when the original petition was yet pending. It is not the case that the original petition filed by the original injured came to be dismissed as abated. The cause of action still survived on the day when MACP no.292/17 was filed. The only diversion made by the petitioners is filing of MACP no.292/17 by paying extra Court fees. Thus, the registration number of the petition stood to be different than that of the original and subsequently, the original petition was withdrawn. So filing of another petition on the cause of action, which arose on the death of the injured would be maintainable under Section 166(1). {Para 23}
(c) of the M.V. Act.
GUJARAT HIGH COURT
1. The petitioner is aggrieved by the order dated 28.3.2019 passed below Exh.20 and 40 by the MACT, Ahmedabad City, wherein prayer was made by the petitioner under Order 7 Rule 11 of the CPC to reject MACP no.292/17.
2. Advocate Mr. P.J. Kanabar stated that one Dilipbhai Vyas, during his lifetime, had preferred a petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”) to claim compensation of Rs.30 lacs against the present petitioners and respondent no.4 in MACP no.371/16, along with an application under Section 140 of the Act. The petitioners and respondent no.4 had filed their written statement and the proceedings of MACP no.371/16 remained at the stage of hearing of interim compensation.
3. Mr. Kanabar submitted that pending hearing of the said claim petition, the petitioners were served with the summons and notice of MACP no.292/17, preferred by the private respondents, who are the legal heirs of the deceased Dilipbhai, for the accident which occurred on 2.7.2016, with an enhanced claim amount of Rs.1 crore by way of compensation under Section 166 of the Act and for Rs.50,000/- under Section 140 of the Act.
4. Mr. Kanabar submitted that as per the averments made in MACP no.292/17, the claimant of MACP no.371/16 died on 5.3.2017. Thus, Mr. Kanabar submitted that the legal heirs were required to be joined in the matter, instead, by an order below withdrawal purshis dated 26.7.2018, the matter came to be disposed of as withdrawn unconditionally.
5. Mr. Kanabar, thus, stated that while passing the withdrawal order, the learned Tribunal had not granted any permission to the petitioners to file another claim petition and thus, stated that MACP no.292/17 is hit by the principle of res judicata, as the same would not be sustainable as the petitioners of MACP no.292/17 failed to join themselves in MACP no.371/16. Advocate Mr. Kanabar stated that Order 22 of the CPC deals with death, marriage and insolvency or parties and since legal heirs were not made parties to the proceedings on the death of the claimant on 5.3.2017, by an operation of law under Rule 3(2) of Order 22 in absence of the legal heirs on completion of 90 days, the claim petition stands to be abated on 6.6.2017. The legal heirs were required to apply for setting aside the abatement within 60 days from 6.6.2017 for the matter to be revived so accordingly, legal heirs would get a grace upto 6.8.2017, which they failed to do so. Mr. Kanabar further stated that the petitioners of MACP no.292/17 had failed to show any new cause of action and the cause of action to sue after the demise of the original claimant, would be governed under the operation of provision of Order 22 Rule 3 of the CPC, which is capable of taking care of the right to succeed in view of provisions of the Succession Act. Mr. Kanabar, thus, stated that withdrawal of MACP no.371/16 without any express leave of the Court to prosecute in MACP no.292/17 has caused serious prejudice to the other side. Advocate Mr. Kanabar further stated that the learned Tribunal has misinterpreted the provision of Order 22 Rule 3 of the CPC and therefore, stated that the order dated 28.3.2019 passed in MACP no.292/17 being ex- facie illegal is required to be quashed and set aside.
6. Advocate Mr. Kanabar, relying upon the judgment in the case of Madan Naik Vs. Hansubala Devi, reported in (1983) 3 SCC 15, stated that no fresh claim petition could be brought on the same cause of action and for want of substitution, abatement takes place on its own course, by passage of time.
7. Per contra, Mr. Tirth Nayak, learned advocate for respondents no.1 to 3 states that Dilipbhai Vyas met with an accident and suffered injuries on 2.7.2016 and filed MACP no.371/16 under Section 161(1)(a) of the Act, for the injuries, he suffered in the accident which occurred on 2.7.2016. The injured remained in comma for a year, however, succumbed to the injuries and died on 5.3.2017. The legal heirs of the deceased filed MACP no.292/17 under Section 166(1)(c) of the Act for compensation due to death of the deceased. Advocate Mr. Nayak submits that after filing of MACP no.292/17, MACP no.371/16 was withdrawn by the advocate specifically mentioning that the applicant therein had died and the legal heirs have
filed MACP no.292/17. Advocate Mr. Nayak contended that the respondents thereafter filed an application under Order 7 Rule 11 for the dismissal of MACP no.292/17 on the ground res judicata on 2.3.2019, which came to be dismissed on 28.3.2019.
8. Relying on the judgment of the Karnataka High Court in the case of V. Anitha Gangadhara & Ors. Vs. S. Srirama Reddy & Anr., reported in ILR 2015 KAR 3495, it is stated that the claimants are not making any double claim under the same head. The subsequent MACP is filed by the legal heirs on the death, which has given a new cause of action to the legal heirs to claim compensation. Mr. Nayak submitted that the proceedings under Sections 166(1)(a) and 166(1)(c) of the Act are both on a different cause of action. Hence, principle of res judicata would not be applicable and thus, stated that the permission of the Tribunal would not be necessary, while withdrawing the earlier petition as the point of consideration would be different in the subsequent petition, where the claimants are legal heirs. Mr. Nayak submitted that the Division Bench of the Karnataka High Court had answered the issue which was raised for consideration, as to whether the Tribunal was justified in rejecting the relief under the head of “loss of dependency, love and affection and consortium,” claimed for the first time by the legal heirs of the deceased and stated that the concept of constructive res judicata involving Section 11 read with Explanation 4 of the CPC was also taken into consideration, where Mr. Nayak submits that it was held that a new cause of action arose for the legal heirs subsequent to the death of the original injured and not earlier to it. Hence, question of constructive res judicata would have no vital role in the matter.
9. In the case of Madan Naik (supra) referred by learned advocate Mr. Kanabar, it has been held in Paragraph 8 as under:-
10. It has been observed, thus when appeal abates for want of substitution as envisaged by sub-rule (1) of Rule 2 of Order 22, it precludes a fresh suit being brought on the same cause of action as it is a specific provision. It has been observed that if abatement implied adjudication on merits, Section 11 of the CPC would be attracted. Abatement of an appeal does not imply adjudication on merits and hence, a specific provision has to be made in Order 22 Rule 9(1) that no fresh suit could be brought on the same cause of action.
11. Order 22 Rule 9 reads as under:-
12. The specific provision so made, is to the effect of abatement, where no suit could be brought on the same cause of action. In case of V. Anitha Gangadhara (supra), High Court of Karnataka has observed in Paragraphs 16 and 17 as under:-
Wherefore, we hold that filing of the second claim petition consequent upon the death of the injured S.Gangadhara was maintainable. In similar circumstances, the Co- ordinate Bench of this Court in the matter of Smt.Prabha and Others -vs-
Sri.P.L.Nagesh and Others in M.F.A.No.1271/2005 (MV) D.D. 8.6.2010 have taken a similar view by setting aside the order of dismissal of the second claim petition passed by the Tribunal under the ground of res judicata. There was no legal bar for the claimants herein to file second petition on the cause of action arising for them on the death of the injured during the pendency of M.V.C.No.109/2002.”
13. The Division Bench in the referred judgment has held that there was no legal bar for the claimants to file second petition on the cause of action arising to them on the death of the injured during pendency of the earlier petition. The observation of the Tribunal that the claimants could have amended their claim petition and claimed compensation in respect of loss of dependency, loss of love and affection and loss of consortium was considered in the opinion of the bench as would be enlarging the scope of the petition which was filed for the cause of action falling under Section 166(1)(a) of the Act and by allowing the amendment, it would restrict to Section 166(1)(c) of the Act and thus, it was held that second claim petition consequent upon death of the injured was maintainable.
14. Section 166(1)(a) is an application for compensation arising out of the accident of the nature specified in sub-section (1) of Section 165 by the person who had sustained the injury. Here in this matter, MACP no.317/16 was filed by original injured claimant and it was stated that the claimant remained in comma till 5.3.2017, the claimants preferred MACP no.292/17 being the legal heirs of the deceased Dilip Vyas. MACP was filed by the heirs on 27.6.2017, while MACP no.317/16 came to be disposed of as withdrawn on 26.7.2018 while observing as under:-
15. The learned Tribunal, while disposing of the petition as withdrawn, has observed about the subsequent MACP no.292/17 being filed as a fatal case. It was stated by Advocate Mr. Kanabar that since the original claimant died, the advocate on record would have no instruction to even submit before the Court for withdrawal of the petition and thus, stated that the order dated 26.7.2018 is illegal since the matter would stand abated and the cause of action dies on the death of the person.
16. In the case of Surpal Singh Ladhubha Gohil Vs. Raliyatbahen Mohanbhai Savlia, reported in 2009 (2) GLH 217, the Division Bench of this Court has held that in MACP, the maxim action personalis mortiur cum persona cannot be imported in the matter to defeat the purpose and the object of a social welfare legislation as it would defeat the very purpose and legislation and even after the death of the injured, the claim petition does not abate and right to sue survives to the heirs and legal representatives.
17. The Division Bench of this Court has observed in Paragraph 11 as under:-
18. Thus, following the proposition of law as after the death of injured, the claim petition does not a
bate and the right to sue survives to the heirs and legal representatives.
19. Here in these facts of the matter, MACP no.371/16 was filed by original injured claimant. On his death on 5.3.2017, the rights of the legal heirs and representatives arises and right to sue would also arise on the death of the injured. Thus, MACP no.292/17 was filed. Pendency of the earlier MACP would not bar filing of another MACP since the cause of action of the legal heirs for bringing another claim petition would be on a ground of loss to the estate where the existing state of estate may have suffered loss towards medical expenses, expenditure on traveling, expenditure on attendant, expenditure on diet, expenditure on Doctor’s fees, reasonable monthly/annually accretion to the estate for certain period, etc. The injured-original claimant could not keep separate amount for such unforeseen expenditure during his lifetime. His income at the most would be divided in 3 parts (i) expenditure on himself, (ii) expenditure on family, and (iii) savings to the estate. Therefore, he has to meet such expenditure from out of his estate. There may be circumstances where it is borne by his legal representatives and the legal representatives therefore can ask for the loss to the estate.
20. The Hon’ble Supreme Court in the case of Oriental Insurance Company Limited Vs. Kahlon alias Jasmail Singh Kahlon (deceased) Through his legal representative Narinder Kahlon Gosakan & Anr. reported in AIR 2021 SC 3913 relied upon the decision in the case of Surpal Singh Ladhubha Gohil (supra) and the decision of the Karnataka High Court in the case of Kanamma Vs. Deputy General Manager, reported in ILR 1990 Karnataka 4300 and has concluded in Paragraph 16 as under:-
The reasoning of the Gujarat High Court is more in consonance with aim, purpose and spirit of the Act and furthers its real intent and purpose which we therefore approve.”
21. The Hon’ble Supreme Court in the case of Kahlon alias Jasmail Singh Kahlon (supra) observed in Paragraph 9 as under:-
Property, under the Act, will have a much wider connotation than the conventional definition. If the legal heirs can pursue claims in case of death, we see no reason why the legal representatives cannot pursue claims for loss of property akin to estate of the injured if he is deceased subsequently for reasons other than attributable to the accident or injuries under Clause 1(c) of Section 166. Such a claim would be completely distinct from personal injuries to the claimant and which may not be the cause of death. Such claims of personal injuries would undoubtedly abate with the death of the injured. What would the loss of estate mean and what items would be covered by it are issues which has to engage our attention. The appellant has a statutory obligation to pay compensation in motor accident claim cases. This obligation cannot be evaded behind the defence that it was available only for personal injuries and abates on his death irrespective of the loss caused to the estate of the deceased because of the injuries.”
22. Thus, the right of the legal representatives to sue arises and would sustain on the cause of the death of the injured, and the legal representatives of the deceased can pursue the claim for loss of property akin to estate of the injured. The application which was moved before the Tribunal was under
23. Here in this case, the claimants, as legal heirs and representatives, have filed a subsequent claim petition while the original was still pending, the right to sue arose on the death of the original claimant and survived on the date when subsequent claim petition was filed. As was held in the case of Surpal Singh (supra), maxim action personalis mortiur cum persona cannot be imported to defeat the purpose and the object of a social welfare legislation of the M.V. Act to give advantage to the wrong doer. Once the status of the claimants as legal heirs or legal representatives are conceded and acknowledged, to deny benefit of compensation, on the ground that injury was personal to the claimant, will be giving a premium to the wrong committed, which would itself defeat the very purpose and object of the legislation. The subsequent petition was filed at the time when the original petition was yet pending. It is not the case that the original petition filed by the original injured came to be dismissed as abated. The cause of action still survived on the day when MACP no.292/17 was filed. The only diversion made by the petitioners is filing of MACP no.292/17 by paying extra Court fees. Thus, the registration number of the petition stood to be different than that of the original and subsequently, the original petition was withdrawn. So filing of another petition on the cause of action, which arose on the death of the injured would be maintainable under Section 166(1)
(c) of the M.V. Act.
24. In the result, the claimants, as legal heirs and representatives, would be entitled to file claim petition for the damages caused on account of the death of the injured, keeping in mind the benevolent object of the Act, this Court does not find any reason to entertain the petition and the petition stands rejected.
(GITA GOPI,J) Maulik
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