ZAMIR AHMED Vs. UNITED INDIA INSURANCE CO LTD

JUDGEMENT

(1.) WE have heard the respondent's learned counsel. Appellants' learned counsel is not present but this has not made any difference because with the assistance of respondent's learned counsel we have ourselves done a thorough review of the record and we have examined the grounds made out in the present appeal for enhancement.

(2.) ONE of the factors that we need to take into account is that during the pendency of the present appeal the appellant died. An application was filed for the legal heirs to be brought on record and this court has passed a speaking order dated 9. 7. 2001 allowing the LRs to be brought on record. Seven of the family members have been brought on record starting with the mother, wife and the 5 children. The point that has arisen for our consideration is as to whether this appeal can be said to have abated or whether it can be treated as subsisting. Undoubtedly, under Order 22, rule 3, Civil procedure Code, it is open to the LRs of a deceased litigant to apply to the court for permission to step into the shoes of the deceased and to prosecute the litigation. These are almost routine applications which are invariably allowed. We need to, however, take into account the fact that in the Division Bench judgment reported in new India Assurance Co. Ltd. v. H. Sid-dalinga Naika, 1985 0 ACJ 89 (Karnataka), where the appellant had died, the Division bench has made an observation to the effect that the appeal abates and has accordingly dismissed the same. Respondent's learned counsel submitted that in a case relating to injury it is the personal right of the aggrieved party that is being agitated and that this aspect of the law would survive only as long as the aggrieved party is alive and that if the aggrieved party were to die, as has happened in the present case for reasons that are not attributable to the motor accident, that it would not be permissible for the LRs to continue with the appeal wherein the solitary prayer is one of enhancement. In support of his submission, what respondent's learned counsel pointed out to us was that the entire plea for enhancement proceeds on the footing that the compensation that has been awarded to the injured party is inadequate because of the consequences of the accident or in other words because the party is handicapped or disabled or because the potential earnings stand reduced and the like and that none of these factors hold good if a death takes place because then, the depletion aspect comes to an end. The second submission is that even as far as the other heads are concerned, that once they have been assessed by the Claims Tribunal such as the pain and suffering, loss of amenities and the like that it is not open to the appeal court to revise these if the party has died and consequently, it is his submission that on this ground alone the appeal is liable to be dismissed.

(3.) WE have very carefully considered the submissions and we need to also take into account what could have been and would have been urged on behalf of the appellant. Undoubtedly, the contention that would have been raised is that the compensation amount constitutes the estate of the deceased and that if by operation of law that amount could be enhanced for valid reasons in the appeal insofar as if the quantum awarded by the Tribunal legally and justifiably requires upward revision, that it would have the result of enhancing the quantum of the estate, and the LRs being the beneficiaries of the estate they would have every right to agitate these issues. The second obvious aspect that would have been argued on behalf of the appellant is that if the Tribunal has for any reason committed an error or if the quantification has not been fair to the claimant, that is not only the function but the duty of the appeal court to make an upward revision and that while exercising this power, the fact that appellant is no longer alive would become irrelevant.