PETER GODINHO Vs. CORNELINS DSOUZA

JUDGEMENT

(1.) THIS Miscellaneous Civil Application is for condonation of delay of 480 days in filing application for bringing the applicants on record as the heirs and legal representatives of the deceased appellant. The appellant died on 15 -9 -2009. As per the application the extent of delay of 480 days is calculated by the applicants by excluding two holidays and the period of ninety days from the date of death of the appellant. The application is opposed by respondent no. 2. The appeal herein arises out of the judgment and order dated 31st October, 2006 passed by the Accident Claims Tribunal awarding compensation of Rs. 25,000/ - only towards no fault liability for the injuries sustained by the appellant in a vehicular accident. The Tribunal found that the appellant failed to establish that respondent no. 1 the owner and driver of the offending vehicle was rash and negligent in driving and as such the appellant was not entitled to receive compensation for the injuries sustained by him. The evidence led on behalf of the deceased appellant was of AW1, his wife and the constituted attorney, AW2, one Peter Godinho who according to the appellant had witnessed the accident, AW3, the doctor and AW4, the Head Constable at Cuncolim Police Station. The oral evidence for deciding the issue of negligence consisted of deposition of AW2, AW4 and of respondent no. 1, the driver and owner of the truck involved in the accident. The panchanama of the place of accident showed that after the accident the motorcycle was lying on the extreme right side of the road caught under the right wheel of the truck. The width of the road at the spot was 7 meters. The distance between the motorcycle and the edge of the road on the right side was of 1.70 meters. An attempt was sought to be made on the part of the appellant to argue before the Tribunal that the truck was actually being driven by the wrong side of the road. It had hit the appellant who was riding his motorcycle on his correct side of the road. Thereafter, the truck moved to the left i.e. its correct side of the road dragging the appellant all the way. The spot panchanama as well as the evidence of AW4 establish that there were no brake marks, skid marks or dragging marks noticed on the road. The Tribunal noted that this was not even the case of the appellant in his claim petition. Such was also not the suggestion given to respondent no. 1 during his cross -examination. Respondent No. 1 deposed that when he was descending the slope at Barcem, the deceased appellant came on the motorcycle descending the slope at a fast speed. Due to heavy load in the truck and since he was ascending the slope, it was being driven at a very low speed. He stated that the motorcyclist suddenly came within a second or two at a fast speed and in the wrong lane. Realizing the danger he swerved the truck to the extreme left side of the road to pave way for the motorcyclist. However, in the next moment the motorcyclist dashed the truck against the bumper. The front wheel got stuck in the bumper and the motorcyclist fell down. According to him the motorcycle was being driven in a suicidal manner. After the accident he had helped AW1 in stopping a Tata Sumo jeep and got the appellant shifted to Primary Health Centre, Bali and from there to Hospicio Hospital, Margao. The cleaner accompanying respondent no. 1 stayed back at the hospital for further formalities and respondent no. 1 had returned to the truck which was lying unattended by the side of the road. There is no cross -examination on this aspect of the evidence of RW1. Considering the entire evidence on record the Tribunal had no choice but to answer the issue of negligence against the appellant. It, however, maintained the compensation of Rs. 25,000/ - awarded under Section 140 of Motor Vehicles Act, 1988(Act, for short) towards no fault liability and treated that as the award of compensation under Section 166 of the said Act.

(2.) RESPONDENT No. 2 contests the present application on the ground that there is no case made out by the applicants for condonation of delay. Shri E. Afonso, learned Counsel for respondent no. 2 also submits that the application filed for bringing the applicants on record as heirs of the deceased appellant is not maintainable since the right of the deceased appellant to sue the respondents was a personal right and it ceased along with the death of appellant. According to him, the right to sue for compensation for injuries to the person does not survive on the death of the person. Therefore Shri Afonso argues that consideration of the present application would be an exercise in futile. Section 306 of the Indian Succession Act which provides for survival of the rights of the deceased to prosecute or defend any action to and against his executors and administrators. The Section makes an exception in respect of personal injuries not causing death of the party. Though, Section 306 of the Indian Succession Act speaks only of executors and administrators, the Apex Court in its decision in Melepurath Sankunni Ezhuthassan v. Thekittil Gopalanakutty Nair( : AIR 1986 SC 411) has observed that the principle contained in the Section will apply not only to the executors or administrators but also to other legal representatives. Therefore, where the claim petition is filed for compensation for personal injury under the Motor Vehicles Act and the claimant dies for some other reason his claim for personal injury will abate on his death and not survive to his legal heirs. Section 166(1) of the Motor Vehicles Act also provides that only a person who had sustained the injury can file an application for compensation either himself or through his agent. Considering the provisions of Section 306 of the Indian Succession Act and Section 166(1) of the Motor Vehicles Act, it must be held that on the death of the appellant herein the right to prosecute the appeal does not survive to the applicants herein. In that circumstance there is no question of condoning the delay in filing the application for bringing the applicants on record to continue the appeal.