C P KANDASWAMY Vs. MARIAPPA STORES

JUDGEMENT

(1.) A preliminary objection regarding the maintainability of this Civil Miscellaneous appeal is raised by the contesting respondents and we think that the objection has to be upheld and the appeal dismissed. The appeal arises out of a claim of Rs. 25,000/- made by one Mr. C. P. Kandaswami, an Advocate practising at coimbatore, for injuries sustained by him in a motor accident that occurred on 111-1962 on the Perundurai-Erode Road. He was travelling in a Fiat Taxi bearing registration No. MDE 5747 and proceeding from Perundurai to Erode, when the ambassador car bearing registration No. MDY 7077 belonging to the 1st respondent to the petition and driven by the 1st respondent's driver Senniappan came in the opposite direction in a rash and negligent manner, dashed against the fiat Taxi and thereby caused several injuries to Mr. Kandasami, the petitioner. The petitioner claimed in all a sum of Rs. 25,000/- made up of Rs. 1,000/-towards medical expenses, Rs. 4,000/- towards loss of professional income Rs. 10,000/for shock, pain and suffering and another sum of Rs. 10,000/- for the permanent partial disability suffered by him on account of the accident.

(2.) THE four respondents impleaded in the petition are the owner of the ambassador car (1st respondent ). The owner-driver of the Fiat taxi (2nd respondent), the insurer of the Ambassador car (3rd respondent) and the insurer of the Fiat taxi (4th respondent ). The Motor Accidents Claims Tribunal, Coimbatore found that the accident was as a result of rash and negligent driving of the ambassador car MDY 7077 belonging to the 1st respondent and that therefore the compensation payable to the petitioner should come out of the 3rd respondent, the insurer of the said Ambassador car. Though the petitioner claimed a total sum of Rs. 25,000/- the Tribunal awarded only a sum of Rs. 5,000/- made up of Rs. 1,000/- towards medical expenses, Rs. 2,000/-towards loss of professional income during the period when the petitioner was unable to attend to his professional work and another sum of Rs. 2,000/-towards shock, pain and suffering as a result of the injuries sustained. The Tribunal negatived the rest of the claim. Respondents 1 and 3, against whom the above said compensation was awarded by the Tribunal, accepted the awarded by the Tribunal, accepted the award and they have not filed any appeal against the same. The petitioner (claimant) filed this appeal in respect of the disallowed portion of the claim. After the filing of the appeal, the petitioner died. His legal representatives have now come an record as appellants. But even when they were impleaded as legal representatives, it has been made clear that such impleading was only subject to the question whether the cause of action survived after the death of Mr. Kandasami, the petitioner-appellant.

(3.) NOW, the preliminary objection raised by the contesting respondents is that after the death of Mr. Kandasami, the cause of action did not survive on the maxim actio personalis moritur cum persona. there are two aspects to this question. The first is whether the physical injuries sustained by the petitioner come under the clause "other personal injuries not causing the death of the party" excepted under Section 306 of the Indian Succession Act. The second aspect is, the claim having been filed by the injured himself and the same having been partially allowed, after which the injured himself filed the present Civil Miscellaneous appeal, whether on his death during the pendency of the appeal, the appeal should abate.