(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act 1988, against the award and decree dated dated 26.10.2006 made in M.C.O.P.No.86 of 2003 on the file of the Motor Accident Claims Tribunal, Sub Court, Virudhachalam.)

1. The appellant is the Insurance Company, which is aggrieved by the Judgment and Decree dated 26.10.2008 passed by the Motor Accident Claims Tribunal, (Sub Court) Salem in M.C.O.P.No.2456 of 2002. (For brevity hereinafter referred to as the Tribunal and the impugned order respectively).

2. By the impugned order, the Tribunal has awarded a sum of Rs.60,000/-as compensation to the legal heirs viz., respondents 2 to 4 of the deceased Sivabackiyam.

3. It was the case of the deceased / claimant that on 01.07.2002 at about 9.00 a.m. aged about 56 years, while walking on the road, a rider of a TVS Super XL belonging to the 5th respondent and insured with the appellant knocked her down from behind and injured her resulting in a fracture to her left tibia with laceration and protruding bone as per Ex.A.4 doctor certificate dated 01.07.2002.

4. It is seen from Ex.P.1-FIR and Ex.P.4-wound certificate filed by Perumal son of the deceased Sowabackayam stated that while the deceased was proceeding on the road side to dump garbage she was hit by a TVS XL-50 bearing No.TN.31-M.0355 driven by its, who was riding it in a rash and negligent manner and knocked her down resulting in fracture to bones.

5. Pursuant to the fall, the deceased was admitted in Cuddalore Government Hospital. The deceased had suffered grievous injury. There is no record of permanent disability or partial permanent disablement.

6. The deceased Sivabackiyam thereafter filed a claim petition on 10.03.2003 under Section 166 of the Motor Vehicles Act, 1988 for a sum of Rs.1,50,000/- towards external injuries suffered by her. The deceased thereafter passed away after 17.07.2003.

7. Since the accident victim later passed away on 17.07.2003, the Tribunal brought the respondent nos.2 to 4 to be impleaded as the legal of the deceased-claimant.

8. The Tribunal concluded that the death was on account of the negligence of the rider of the motor cycle and that the deceased-claimant suffered grievous injuries and was entitled for compensation. Thus, the legal heirs, namely, respondent nos.2 to 4 were entitled for compensation on the following heads:

Grievous injuriesRs. 40,000/-

Pain and sufferingsRs. 15,000/-

TransportationRs. 2,000/-

Extra NourishmentRs. 3,000/-

TotalRs. 60,000/-





9. This case was referred to the Lok Adalat in 2010. However, it appears the case could not be settled on the ground that the appellant was not willing to settle case. Therefore, this case was taken up for hearing on 04.07.2018 finally.

10. Heard the learned counsel for the appellant and the learned counsel for the respondents. I have also perused the documents and evidence available on records.

11. The learned counsel for the appellant would submit that the amount awarded by the Tribunal towards alleged grievous injury and towards pain and sufferings cannot succeed to the legal heirs of the deceased as they die with the deceased. He invoked the latin maxim "Actio personalis moritur-cum-personna".

12. It was submitted that pursuant to the death of the claimant, the legal heirs cannot claim the compensation in respect of the personal injuries and pain and suffering in terms of the following decisions of the Honble Supreme Court and this Court in:

i) The Branch Manager, Oriental Insurance Co., Ltd., vs. Manohar(deceased) and 3 Others, 2017 (2) TN MAC 81 (DB)

ii) Managing Director, Pandiyan Roadways Corporation, Madurai vs. S.Rajalakshmi and four others, 2000 (IV) CTC 528

13. In Girija Nandini Devi vs. Bijendra narain, AIR 1967 SC 1124 [LQ/SC/1966/149] , which was followed in The Branch Manager, Oriental Insurance Co., Ltd., vs. Manohar(deceased) and 3 Others, 2017 (2) TN MAC 81 (DB) cited supra, it was held that The maxim "Actio personalis moritur-cum-personna" means a personal action dies with the person has a limited application. It operates in a limited class of actions ex delicto such as actions for damages, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall with the enumerated classes. Nor is such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory.

14. In para 15 in The Branch Manager, Oriental Insurance company Ltd., vs. Manohar case supra, it was held that The maxim "Actio personalis moritur-cum-personna" relates only to the personal injury, pain and suffering experienced by the deceased on account of injuries and it cannot be extended to the loss of estate of the deceased. Reference can be made to the decision of this Court in Thailammai v. A.V.Mallayya Pillai, 1975 ACJ 448 [LQ/APHC/1974/63] , wherein this Court held that the cause of action in respect of damages to the estate of the deceased survives and it is passed over to the legal representatives/defendants.

15. In Managing Director, Pandiyan Roadways Corporation, Madurai vs. S.Rajalakshmi, case supra, cited by the counsel for the appellant it was held that since death of injured was not on account of the accident, the legal representatives claimants would be entitled to be compensated as regards actual expenses incurred by claimant for treatment.

16. In the above case, this Court referred to the following decisions:

i) Melapurath Sankunni Ezhuthassan v. Thekittil Gopalankutty nair, 1986(1) SCC 118

ii) M.Veerappa vs. Evelyn Segulira, 1988(1) SCC 556

iii) C.P.Kandaswamy vs. Mariappa Stores, 1974 ACJ 362 [LQ/MadHC/1973/15] ,

17. Per contra the learned counsel for the respondent relied on the following decisions of this Court:

i) Tmt.K.Prema vs Hotel Saravana Bhavan, C.M.A.No.2852 of 2009

ii) The Managing Director vs Mrs.Padmavathi, CMA.No.1218 of 1997

18. In Tmt.K.Prema vs Hotel Saravana Bhavan, case supra, this Court awarded a sum of Rs.75,000/- towards pain and suffering to the legal heirs of the deceased. In the said case the claimant died on 24.09.2006 i.e., after five years of the accident after filing claim petition.

19. The case of the claimants in that case was that substantial amount was spent from the estate of the deceased and therefore they are entitled to loss on account of loss to the estate.

20. The Court opined that normally it is the legal representatives who spend money without waiting or without wanting the injured to depend upon money from the estate. The Court framed the following issue: Whether the legal representatives are entitled to get back the amount spent by them for saving the life / towards or not while saving the interest of the deceased

21. In the present case, the deceased was aged about 56 years at the time of the death. The deceased-claimant had filed a claim petition on 10.03.2003. The deceased died within a year of the accident. There are no indication that the deceased had previous illness, before her death.

22. However, in the case of Manokaran vs. The Managing Director, Tamil nadu State Transport Corporation, Dharmapuri (2010)2 TN MAC 243, this Court has held that the legal heirs would not be entitled to compensation.

23. In the case of Umedchand vs. Dayaram (2002) 1 ACJ 966, it was held that it may be true that this maxim has been criticized being unjust, obscure in its origin, inaccurate in its expression and often resulting in grave injustice and also in the country of its origin suggesting application of principle of justice, equity and good conscience unless it is specifically engrafted in the statute but it is undenial that it has taken roots in this country and section 306 of the Indian Succession Act, 1925, has confined to its application to specific conditions. However, proper balance has to be worked out so that tort feasors does not thrive at the cost of victim of accident or his legal representatives. Consequently, endeavour should be to minimise the application of this maxim as far as possible and advance the cause of justice.

24. The Court further held that so far as the claim for personal injury is concerned, it would abate on the death of the original claimant, but not the claim which pertains to the loss to the estate of the injured. It survives to the legal representatives. In Joti Ram v. Chamanlal, 1984 ACJ 645 [LQ/PunjHC/1984/561] , the Division Bench of Punjab and Haryana High Court held that the right to sue survives the claim on account of loss to the estate but abated with respect to the personal injuries suffered by the claimant.

25. In M. Veerappa v. Evelyn Sequeira, (1988) 1 SCC 556 [LQ/SC/1988/22] : AIR 1988 SC 506 [LQ/SC/1988/22] , the distinction was drawn between action founded entirely on torts and entirely on contract. In the former case, it would abate while in the later it would not and survive to legal representatives. If action is founded partly on contract and partly on torts then it would survive to the extent, it is based on contract, rest would abate.

26. In Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, 1986 ACJ 440 [LQ/SC/1985/362] , the Apex Court said that the right to sue where maxim actio personalis moritur cum persona applies, does not survive to the legal representatives; therefore, they were not entitled to prosecute the claim.

27. Thus, it is clear that the legal representatives / legal heirs of the deceased Sivabakkiyam cannot be succeed to the compensation awarded towards personal injuries and pain suffering of the deceased even though such amount would have enriched the estate of the deceased during her life time.

28. In view of the above reasons, the amount awarded towards grievous injury and pain and suffering of the deceased- Sivabakkiyam cannot be sustained. Accordingly, the impugned order is liable to be set aside to that extent.

29. As a parting note, it would be apt to caution that the maxim puts the legal heirs of accident victim to an unfair disadvantage even though such compensation if awarded during the life time would be even fully enriched the estate of the deceased and would have been available for distribution at a later point of time if not spent during life time of the accident victim. Therefore, unless the claims cases before the Tribunal are completed quickly, claims are at the risk of getting abated on account of the intervening death of the accident victim pending litigation.

30. The impugned order is modified with the above observation and the Civil Miscellaneous Appeal is partly allowed. Consequently, connected miscellaneous petition is closed. No costs.