UTTAM KUMAR Vs. MADHAV

JUDGEMENT

(1.) THIS M. F. A. is filed against the judgment and award dated 21. 9. 1999 passed in M. V. C. No. 459 of 1995 and the same has been referred by the Division Bench to the larger Bench by order dated 21. 9. 2001. As per order of the chief Justice dated 14. 3. 2002, this reference is before us on 18. 3. 2002.

(2.) THE facts leading to the order of reference are that on 7. 1. 1995 while returning from Bidar to Wanmar Palli near keppikari Cross, the jeep driven by one uttam Kumar collided with a lorry coming from the opposite direction driven in a rash and negligent manner and as a result of the accident Uttam Kumar sustained severe injuries. Thereafter, Uttam Kumar was admitted into hospital and he, for his treatment, incurred expenses. A claim petition in M. V. C. No. 459 of 1995 came to be filed. After issuing the notice and hearing the parties, the Addl. M. A. C. T. , Bidar awarded compensation of Rs. 36,250 with costs and interest at 6 per cent per annum from the date of filing of the petition till the date of realisation of the compensation amount. Uttam Kumar preferred an appeal seeking enhancement of compensation. Pending disposal of the appeal, Uttam kumar died on 25. 12. 1999 and his aged parents as LRs filed I. A.-I, for condonation of delay; I. A.-II for setting aside the abatement; and I. A.-III seeking permission to come on record as LRs of the deceased appellant. The Division Bench of this court relying on the Full Bench decision of this court in Kannamma v. Deputy General manager, Karnataka State Road Trans. Corpn. , 1991 ACJ 707 (Karnataka), found that cause of action will not survive and lrs of the deceased claimant will not be entitled to compensation. The Division bench had observed that "in view of the amended provisions of the Motor Vehicles act, 1988 and the decision of the Supreme court referred to above, the Full Bench decision in Kannamma's case may require consideration". Thus, the reference was placed before us as stated.

(3.) MR. S. P. Shankar, learned senior counsel submits that the point in issue has already been decided by the Full Bench and also it is very clear from section 166 of the Motor Vehicles Act, 1988 (for short 'the M. V. Act') that LRs of the deceased can pursue the remedy of compensation if death has resulted from the accident and no time has been mentioned in the section. There is also no bar under section 306 of the Indian Succession Act, 1925 (in short 'the I. S. Act' ). Therefore, the observations of the Division Bench in para 3 of the order of reference that "the Full Bench, relying on section 306 of the Indian Succession act, 1925 which provides that in regard to cause of action for personal injury, the cause of action will not survive on the death of the injured, held that cause of action will not survive and LRs of the deceased claimant will not be entitled to compensation is not correct". So also the observation of the Division Bench that the provisions of the M. V. Act will supersede section 306 of the I. S. Act and the view of the Full Bench needs reconsideration. Learned counsel submits that these observations were made in connection with the case of Helen C. Rebello v. Maharashtra state Road Trans. Corpn. , 1999 ACJ 10 (SC), wherein it has been said that restriction will not apply in considering the provision of the M. V. Act, as the manner of judging the said provisions is wider. So also there is no question of any inconsistency with or supersession of section 306 in the content as the law is well settled by earlier Full Bench.