OMANA P K Vs. FRANCIS EDWIN

JUDGEMENT

(1.) Ist respondent obtained a decree for recovery of money against the deceased 1st judgment debtor in the year 2002. 1st judgment debtor met with a motor accident and succumbed to the injuries on 4.5.2004. Petitioners who are his legal heirs filed O.P. (MV) No. 1736 of 2004 before the Motor Accidents Claims Tribunal, Emakulam (for short, "the Tribunal") and obtained Ext. P-10, award for recovery of Rs. 13,60,000/- by way of compensation. After the death of the 1st judgment debtor, petitioners were impleaded in E.P. No. 235 of 2010 (in O.S. No. 293 of 2000) as additional judgment debtors. 1st respondent filed E.A. No. 959 of 2010 to attach Rs. 2,10,000/- from the amount awarded by the Tribunal and payable to the petitioners. After hearing both sides, learned Sub Judge d is missed E.A. No. 959 of 2010 holding that no amount payable to the petitioners as per Ext. P-10 award could be attached as it is not the property of the deceased 1st judgment debtor. Thereafter placing reliance on the observations in paragraphs 8 and 9 of the decision in E.S.I. Corporation v. Rajagopal Textile Mills (P) Ltd., 2006 4 KerLT 730), 1st respondent sought review of the order on E.A. No. 959 of 2010 vide E.A. No. 1214 of 2010. Learned Sub Judge allowed that application, reviewed the order on E.A. No. 959 of 2010 and attached Rs. 2,10,000/- payable to the petitioners from the amount awarded by Ext. P-10, award. The order on E.A. No.1214 of 2010 is under challenge in this Original Petition.

(2.) When the matter came up for hearing, after hearing both sides this Court passed an interim order on 6.9.2011 granting stay except to the extent of Rs. 15,000/- from the amount in deposit which the 1st respondent was allowed to withdraw.

(3.) It is contended by learned counsel for petitioners that the amount attached represents pecuniary loss suffered by petitioners as dependents and legal heirs of the deceased 1st judgment debtor consequent to his death in the motor accident, it is not the property of the deceased 1st judgment debtor, it is the property of petitioners who have no personal liability to the 1st respondent and hence the said amount is not attachable. According to the learned counsel, only compensation awarded by way of loss of estate of the deceased 1st judgment debtor could be attached. Reliance is placed on the decisions in Smt. Lakshmisagar Reddy v. Controller of Estate Duty, Hyderabad, 1980 123 ITR 601), The Chairman, A.P.S.R.T.C., Hyderabad v. Smt. Shafiya Khatoon & Ors., 1985 AIR(AP) 83 and Janaki & Ors. v. Prabath Finance, 1986 AIR(Mad) 273). Learned counsel also invited my attention to the meaning of the expression 'decedent's estate' from Blacks Law Dictionary, 9th Edition.