NEW INDIA ASSURANCE CO LTD Vs. S POORANAM

JUDGEMENT

(1.) CHALLENGE is made in this appeal to the award of Rs. 75,000/- dated 26.4.2010 and made in M.C.O.P. No. 912 of 2006 on the file of the Motor Accident Claims Tribunal, III Additional Sub Court, Madurai by the second respondent/Insurance Company.

(2.) THE facts which giving rise to the memorandum of civil miscellaneous appeal may be summarised as under. 2.1. That on 17.2.2006 at about 7:55 a.m., the injured G. Sithivinayagam, was knocked down by an autorickshaw bearing registration No. TN 58 B 2898, opposite to Devika Scans on THEni Road, when he was proceeding in his two wheeler Bajaj M 80 bearing registration No. TN 59 D 9426 and as a result of which he had sustained grievous injuries at the bottom of his right leg which resulted in communited fracture of both bones right leg mid 1/3 lower 1/3. Hence, the injured, Sithivinayagam had filed a claim petition in M.C.O.P. No. 912 of 2006 on the file of the Motor Accident Claims Tribunal, (III Additional Sub Court), Madurai claiming a sum of Rs. 3 lakhs. 2.2. THE first respondent being the owner of the autorickshaw has not chosen to contest the claim petition. On the other hand, the second respondent, who is the appellant Insurance Company has alone contested the claim petition on various grounds. In order to substantiate their respective cases, the parties to the claim petition went for trial. 2.3. During the pendency of the claim petition, the injured Sithivinayagam, had died and hence, the second petitioner being the wife of the injured claim petitioner got impleaded in the claim petition and prosecuted the proceedings. Three witnesses which includes the second petitioner Tmt. S. Pooranam were examined on behalf of the claimant and during the course of their examination Exhibit P-1 to P-7 were marked. On the other hand one Jalaluddin, who has been working as Junior Assistant in the Regional Transport Office in Dhindigal was examined as R.W.1, and during the course of his examination Exhibit R-1 was marked. On appraising the evidences both oral and documentary and on considering the related materials, the Motor Accident Claims Tribuanl had proceeded to found that the first respondent, driver was at fault for the accident. As the injured Sithivinayagam, had died during the pendency of the claim petition, the Motor Accident Claims Tribunal, had also found that the death of the injured Sithivinayagam, did not have any proximate cause to the accident and therefore, it had concluded that the second petitioner being the wife of the injured Sithivinayagam was entitled to have a sum of Rs.75,000/- towards compensation under the following heads; <IMG>JUDGEMENT_659_MADLJ4_2011Image1.jpg</IMG> 2.4. Ultimately, the second respondent was directed to pay the compensation amount of Rs.75,000/- within a period of two months with interest at the rate of 7.5% per annum from the date of petition. Being aggrieved by the impugned order, the second respondent, Insurance Company has chosen to filed this appeal.

(3.) BUT in the instant case on hand, evidently it is established through the materials available on record that the death of the injured is not proximate to the injury sustained by him in the alleged accident. When such being the case, an action for personal injury not causing death of the injured Sithivinayagam, does not survive to the first respondent/second claimant who is none other than the wife of the original claimant Sithivinayagam. This ratio has been laid down in Jogindra Kuer and Others v. JagdishSingh and Others AIR 1964 Patna 548 (V 51 C 164). In this case, a question as to whether the right to sue in personal actions survives the death of the plaintiff was arisen. In order to answer this question, a full bench of Patna High Court has taken the assistance of the proviso to Order 22 Rule 1 and 11 as well as Order 1 Rule 3 and 9 of Code of Civil Procedure. While writing the judgment, Mr. Justice Tarkeshwar Nath, has observed that;