# Satish Chand Sharma & Ors v. Manoj & Anr

- **Citation:** (2021) 4 ILRA 63
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-26
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satish-chand-sharma-ors-v-manoj-anr-47028
- **Pages:** 24

## Headnote

A. Civil Law - Motor Vehicles Act, 1988 -
Section
170
&
Code
of
Civil
Procedure,1908-Order 9 Rule 13-original
claimant passed away-family members
awarded further sum of money for mental
trauma and incidental expenses-execution
64 INDIAN LAW REPORTS ALLAHABAD SERIES
could have been decided considering the
objection of owner-decree should have
been set aside only qua that portion as the
remedy was for not making payment
though owner was the primary debtor but
there was a contract of indemnity with the
Insurance
Company,
the
relevant
consideration was this factor and not the
challenge
to
compensation-where
the
decree is joint and divisible, the whole
decree need not be set aside-award and
decree passed by the Tribunal shall stand
modified.(Para 1 to 62)

B.
Compensation
in
cases
of
motor
accidents, as in other matters, is paid for
reparation of damages. the damages so
awarded should be adequate sum of
money that would put the party, who has
suffered, in the same position if he had
not
suffered
on
account
of
wrong.
Compensation is , therefore, required to
be paid for prospective pecuniary loss i.e.
future
loss
of
income/dependency
suffered on account of the wrongful act.
however, no amount of compensation can
restore the lost limb or the experience of
pain and suffering due to loss of life. loss
of a child, life or a limb can never be
eliminated or ameliorated completely.
therefore, in addition to pecuniary losses,
the law recognizes that payment should
also be made for non-pecuniary losses on
account of , loss of happiness, pain,
suffering and expectancy of life etc.(Para
39)

The appeal is disposed off.(E-5)

List of Cases cited:-

## Text

_Characters 0–39,896 of 80,604. This is a partial read: ask again with offset=39896 for what follows._

4 All. (Deceased)Satish Chand Sharma & Ors. Vs. Manoj & Anr.
63

"I. On depositing the amount in
the Registry of the Tribunal, Registry is
directed to first deduct the amount of deficit
court fees, if any.

II. Considering the ratio laid
down by the Hon'ble Apex Court in the case
of A.V. Padma V/s. Venugopal, Reported in
2012 (1) GLH (SC), 442, the order of
investment
is
not
passed
because
applicants/claimants
are
neither
not
illiterate and in New India Assurance Co.
Ltd. Vs. Hussain Babulal Shaikh and
others, 2017 (1) TAC 400 (Bom.).

III. View of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansaguti P. Ladhani v/s The
Oriental Insurance Company Ltd., reported
in 2007(2) GLH 291, total amount of
interest, accrued on the principal amount
of compensation is to be apportioned on
financial year to financial year basis and if
the interest payable to claimant for any
financial
year
exceeds
Rs.50,000/-,
insurance company/owner is/are entitled to
deduct appropriate amount under the head
of 'Tax Deducted at Source' as provided u/s
194A (3) (ix) of the Income Tax Act, 1961
and if the amount of interest does not
exceeds Rs.50,000/- in any financial year,
registry of this Tribunal is directed to allow
the claimant to withdraw the amount (as
directed in para No. II) without producing
the certificate from the concerned IncomeTax Authority.""

24. In view of the above, the appeal is
partly allowed. Award and decree passed
by the Tribunal shall stand modified to the
aforesaid extent. The respondents shall
jointly
and
severally
liable
to
pay
additional amountwithin a period of 12
weeks from today with interest at the rate
of 7.5% from the date of filing of the
claim petition till the amount is deposited.
It is further directed that on deposit of the
amount, the Tribunal shall disburse the
entire amount by way of account payee
cheque or by way of RTGS to the account
of the appellants within 12 weeks from the
date the amounts are deposited by the
respondents. Record be sent back to the
Tribunal.

25. A copy of this Judgment be
circulated by the learned Registrar General
to the Tribunals in the State for guidance
after seeking approval of the Hon'ble the
Chief Justice.
----------
(2021)04ILR A63
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.03.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

FAFO No.- 3160 of 2018

(Deceased)Satish Chand Sharma & Ors.
 ...Appellants
Versus
Manoj & Anr. ...Respondents

Counsel for the Appellants:
Sri Abhishek, Sri Umesh Kumar Singh

Counsel for the Respondents:
Sri Nishant Mehrotra

A. Civil Law - Motor Vehicles Act, 1988 -
Section
170
&
Code
of
Civil
Procedure,1908-Order 9 Rule 13-original
claimant passed away-family members
awarded further sum of money for mental
trauma and incidental expenses-execution
64 INDIAN LAW REPORTS ALLAHABAD SERIES
could have been decided considering the
objection of owner-decree should have
been set aside only qua that portion as the
remedy was for not making payment
though owner was the primary debtor but
there was a contract of indemnity with the
Insurance
Company,
the
relevant
consideration was this factor and not the
challenge
to
compensation-where
the
decree is joint and divisible, the whole
decree need not be set aside-award and
decree passed by the Tribunal shall stand
modified.(Para 1 to 62)

B.
Compensation
in
cases
of
motor
accidents, as in other matters, is paid for
reparation of damages. the damages so
awarded should be adequate sum of
money that would put the party, who has
suffered, in the same position if he had
not
suffered
on
account
of
wrong.
Compensation is , therefore, required to
be paid for prospective pecuniary loss i.e.
future
loss
of
income/dependency
suffered on account of the wrongful act.
however, no amount of compensation can
restore the lost limb or the experience of
pain and suffering due to loss of life. loss
of a child, life or a limb can never be
eliminated or ameliorated completely.
therefore, in addition to pecuniary losses,
the law recognizes that payment should
also be made for non-pecuniary losses on
account of , loss of happiness, pain,
suffering and expectancy of life etc.(Para
39)

The appeal is disposed off.(E-5)

List of Cases cited:-

1. Sudarsan Puhan Vs Jayanta Ku. Mohanty &
anr.,(2018) AIR SC 4662

2. UPSRTC Vs Km. Mamta & ors, (2016) AIR SCC 948

3. Sanjiv Mishra Vs Ramashcharya Verma &
ors., (2010) 4 T.A.C. 113(All.)

4. Madhuben Maheshbhai Patel & ors. Vs Joseph
Francis Mewan & 1 anr, (2014) Law Suit (Guj)
2214
5. Samarjeet Singh Vs Khursheed Khan & ors.,
(2020) 12 ADJ 168

6. Vijay Singh Vs. Shanti Devi & ors., (2017) AIR
SC 5672

7. Jenabai Wd/O Abdul Karim Musa Vs Guj. St.
Rd. Transport Corpn. , Ahmedabad, (1991) 1
GLR 352

8. Shanti Bai & ors. Vs Charansingh Singh & ors.
(1998) ACJ 848

9.
Saruyaben
Harisinghbhai
Bilwal
V/s
Ataullakhan Mehtabkhan Lalkhan pathan (2001)
3 G.L.R.2029.

10.
Surpal
Singh
Lahubha
Gohil
Vs
Raliyatbahen Mohanbhai Savlia,FAFO No..301
of 1990

11. Smt. Hansaguti P. Ladhani Vs The Oriental
Insurance Company Ltd., (2007) 2 GLH 291,

12. Smt. Sudesna & ors. Vs Hari Singh &
anr.,FAFO No. 23 of 2001

13. Mithusinh Pannasinh Chauhan Vs Guj. St.
Rd. Trans. Corpn. (2015) 17 SCC 529

14. ICICI Lombard G.I.C. Vs M.D. Davasia &
anr.

15. Lalan D. & ors. Vs. Oriental Insurance
Company Ltd. (2014) 14 SCC 396

16. Kirti Vs Oriental Insurance Company (2021)
1 TAC 1

17. U.O.I. Vs A.S. Sharma, (1993) 1 GLH1044

18. Anita Sharma Vs New India Assurn. Comp.
Ltd. (2021) 1 SCC 171

19. Sunita & ors. Vs Raj. St. Rd. Trans. Corpn. &
anr., (2019) LawSuit (SC) 190

20. Mangla Ram Vs Oriental Insurance Company
Limited & ors. (2018) 5 SCC 656

21. Vimla Devi & ors. Vs National Insurance
Comp. Ltd. & anr. (2019) 2 SCC 186.
4 All. (Deceased)Satish Chand Sharma & Ors. Vs. Manoj & Anr.
65
22.
National
Insurance
Co.Ltd.
Vs
Smt.
Vidyawati Devi & 2 ors., FAFO No. 2389 of 2016

23. Erudhyapriya Vs St Exp. Trns. Corp. Ltd.
(2020) 2 TAC1

24. National Insurance Co. Ltd. Vs. Mannat
Johat & ors. (2019) 2 T.A.C. 705 (S.C.)

25. A.V. Padma & ors. Vs R. Venugopala & ors.
(2012) 3 SCC 378
26. G.M., Kerala St. Rd. Trans. Corpn.,
Trivandrum Vs Susamma Thomas & ors.,
(1994) AIR SC 1631

27. Zeemal Bano & ors. Vs Insurance Co. (2020)
TAC(2) 118

(Delivered by Hon'ble, Dr. Kaushal
Jayendra Thaker J. &
Hon'ble Ajit Singh, J.))

1. Heard Shri Abhishek, learned
counsel for appellants and Shri Nishant
Mehrotra appearing on behalf of the
Insurance Company. None appears for the
owner of the vehicle. We had partly
allowed the appeal but had kept reasons to
be penned later on as the Courts were
closing for the Holi Vacations. We now
Penn our reasons for allowing the appeal,
filed at the behest of claimants who have
been put to great injustice by the orders of
the ld officers manning the Tribunals, from
2010, while losing sight of the beneficial
provisions of Motor Vehicles Act, 1988
(hereinafter referred to as 'Act' ).

2. After the judgment was dictated we
directed the office to upload the same on
14.4.2021. But immediately after directing
the judgment to upload, we thought of
again going through the judgment for our
satisfaction when we read the judgment,
unfortunately, while going through the
manuscript, we found that there were
certain repetitions, the paraphrasing was
not proper and therefore, we directed the
office not to issue the certified copy and
delete the same on 14.4.2021 itself and we
have corrected the manuscript again
without changing the final result. This was
necessary so as to maintain a better
chronology
and
make
it
a
more
comprehensive and readable judgment. We
can say that these changes were necessary
to make it a more readable judgment
interpreting the provisions of Order 9 Rule
13 of Code of Civil Procedure 1908 herein
after referred as C.P.C. and for directing
the Tribunals, on the course which they
should adopt in such cases.

THE CHANGES CAN BE SAID
TO BE MORE OF STYLE IN WRITING SO
THIS MENTION AS SOME MIGHT HAVE
DOWNLOADED
AND
READ
THE
JUDGMENT UPLOADED

3. This appeal, at the behest of the
claimant (now deceased) through his legal
representatives, challenges the judgment
and decree dated 4.5.2018 passed by the
Motor Accident Claim Tribunal/Additional
District Judge, Court No. 15, Ghaziabad
(hereinafter referred to as ''Tribunal') in
M.A.C.P. No. 516 of 2005 (Deceased
Satish Chand Sharma and others Vs. Manoj
and another. The appeal is preferred for
enhancement of the compensation awarded
under the impugned award and that with a
prayer that this Court be pleased to allow
the claim petition in toto by exercising
powers under section 173 of the Act..

4. Recently the Apex Court in
Sudarsan
Puhan
Vs.Jayanta
Ku.
Mohanty and another etc.,reported in
AIR
2018
SC4662,
reiterated
the
observations made in the case of UPSRTC
66 INDIAN LAW REPORTS ALLAHABAD SERIES
Vs. Km. Mamta and others, reported in
AIR 2016 SCC 948, directing that as
appeal is continuation of the earlier
proceedings, High Court is under legal
obligation to decide all the issues raised
and decide the lis and decide appeal by
giving reasons.

5. Essential facts and chronology of
events giving rise to the instant dispute are
noted at the outset. We feel it necessary to
narrate the chronology of events which
would
show
that
the
Tribunal
has
committed
illegality
in
passing
the
impugned award which requires to be
readdressed by this Court in favour of the
claimants who represent the estate of the
injured who died subsequent to the passing
of award and decree in in his favour in the
year 2010. The accident occurred on
22.2.2005. The claimant was admitted in
hospital from the date of accident and,
thereafter was discharged. The claimant
filed claim petition on 14.9.2005 after
being discharged from hospital. On petition
being filed, summons were issued to
respondents. Though disputed by owner,
the respondent No.1-owner was served
with the summons on 13.1.2007 as
mentioned by the Tribunal in its judgment
dated 27.9.2010. The matter proceeded ex
parte against the owner namely Manoj
Kumar. The owner and driver of the
offending vehicle did not appear before the
Tribunal. The Insurance Company sought
adjournment till 2008 and did not file their
reply. The reply one of denial was filed in
the year 2009. The evidences were
recorded
from
2009
to
2010.
On
08.07.2010 the Insurance Company was
permitted to contest the petition under
Section 170 of the Motor Vehicles Act,
1988. The Tribunal passed award on
27.09.2010 in favour of claimant .The
Tribunal came to the conclusion that as the
owner did not appear it could not be held
that the vehicle was insured on the date of
accident i.e. 22.2.2005.It is admitted
position of fact that though the policy was
produced, the Tribunal passed award only
against the owner on 27.09.2010 as no
other documents were produced. thereby
did not hold respondent No.2 Insurance
Company liable to satisfy the award and
pay the claimant.

6. The Tribunal vide award dated 27 9
2010 awarded medical expenses for the
treatment. In the judgment and award dated
27.09.2010 where all the documents were
proved, the Tribunal granted a sum of Rs.
20,16,500/-(rounded
up)
as
medical
expenses on the basis of the documents
which were produced and awarded a sum
of Rs. 63,250/- for not being able to attend
the services for 163 days due to injuries,
under other head under pecuniary as also
non pecuniary damage,did not grant any
amount for the future loss or under other
admissible heads, and granted only a
further sum of Rs. 5.000/- for pain shock
and suffering.

7. The next important aspect to be
noted for our purpose is that the claimant
preferred execution petition being 34 of
2011 against the owner. Notice /summons
came to be issued to the owner but the
owner did not respond The owner did not
appear before the executing court. The
owner appeared after two years namely on
16.4.2013 after issuance of attachment
warrant
against
him,the
owner
filed
application under Order 9 Rule 13 of
C.P.C. contending that he was never served
with any summons/notice and came to
know of the proceedings only when the
clerk from the office of Tehsildar came
with
the
warrant
and
hence
filed
application before the tribunal to set aside
4 All. (Deceased)Satish Chand Sharma & Ors. Vs. Manoj & Anr.
67
the ex parte decree-as his vehicle was
insured with respondent no 2 who would be
liable to satisfy the decree. The Tribunal in
application 14 of 2013 filed not in
execution petition but in macp no 516 of
2005 (disposed) granted ex parte stay of
execution of warrant and decree on 25 4
2013. The matter thereafter was adjourned
from time to time and as the record shows
till 2015 except adjourning the matter no
further steps were taken and then came to
be listed again on 29.4.2016 namely after
six years of passing of the decree. The
tribunal allowed the application under
Order IX Rule 13 of C.P.C. From the said
date, the matter again went on being listed
and thereafter the legal heirs were added as
original claimants. The record shows that
when the application was filed in the year
2013, the documents showing that the
vehicle was insured were also on record
and were produced. The respondent was
permitted to file his reply which he filed on
29.11.2016. On 5.1.2017, an application
was moved on coming to know that the
proceeding was going on. On 30.5.2017 an
application was made that the deceased
died out of the injuries sustained due to the
accident and medical evidence was also
filed by the claimants and doctors were
examined on oath. The last bill of OPD of
1.8.2013 was also filed. It is an admitted
position of fact that to the documents which
were filed the Insurance company did not
raise any objection. The objection was to
the order dated 29.4.2016 which was
unfortunately rejected. The claimants filed
reply contending that though the vehicle
was insured, the Insurance company had
taken the stand that the vehicle was not
insured. Against the order rejecting the
application,
the
Insurance
company
requested
to
stay
the
orders
dated
29.4.2016 and 9.3.2018 as they wanted to
challenge the same but from the record
we find that there is no challenge either to
the said order or the subsequent award
dated 4.5.2018 namely the impugned
award. The original claimant meanwhile
after
appearing
in
response
to
the
application for setting aside the decree,
passed away in the year 2013 more
particularly on 2.8.2013. The tribunal
allowed the application under order 9 Rule
13 of C.P.C. (against a dead person) on
29.7.2016. This order was passed on
hearing the advocate of claimant and
directed execution petition to be kept on
file. The award was set aside. The matter
was adjourned from time to time without
any orders. After a period of one year, i.e in
the year 2017 heirs of the claimant were
brought on record. The Tribunal permitted
owner to produce documents so as to prove
that the vehicle was insured . The tribunal
decided the matter afresh by permitting
owner to file written statement.

8. It is an admitted position that in the
execution petition though served the owner
did not appear. The tribunal issued
recovery warrants against the owner When
warrants were issued and bailiff tried to
execute the decree, owner filed
an
application on 16.04.2013 under Order 9
Rule 13 of C.P.C. and prayed for stay of
execution of award. There was no delay
condonation application filed with the
application requesting to set aside the
decree. On 24.05.2013, the Tribunal
granted ex-parte stay against execution of
decree. The Tribunal directed issuance of
notice, after issuance of notice, to the
original claimant who was alive is not
known
whether
appeared
and
filed
objections to the said application for
review/application for setting aside the
award. The matter after granting stay came
68 INDIAN LAW REPORTS ALLAHABAD SERIES
up for hearing only in the year 2016. The
Tribunal passed the order in application
filled under Order 9 Rule 13 C.P.C. on
24.05.2013 stayed the recovery proceeding
ex parte. The order was passed in Misc.
Case No. 14 of 2013 on 29.04.2016,
namely after the death of original decree
holder. On 2.8.2013 Satish Chandra, the
original claimant, had passed away, which
shows that the order passed on 29.4.2016
was against a dead person. Despite that,
instead of removing this irregularity the
application (paper No. 445 Ga) filed by the
Insurance Company was dismissed by the
tribunal.

9. The moot question is could the
decree not have been set aside in part
which was the prayer by the owner as the
decree was severable , the prayer of the
owner could be answered by treating it as
objection to decree. The policy and non
breach of policy condition could be proved
and the insurance company could have
been directed to indemnify the injured. The
execution application and application to set
aside the decree passed against the owner
was kept pending and was adjourned and
listed in the year 2016 which was again
adjourned.

10. An application was filed in the
year 2018 by the Insurance Company that
the original claimant had died and the order
passed on the application under Order 9
Rule 13 C.P.C. in absence of the original
claimant was bad in the eyes of law as the
order passed in the year 2016 allowing the
application under Order 9 Rule 13 of
C.P.C. was against a dead person. This
application was also rejected by Tribunal.
The Tribunal and on oral testimony of
doctors who had treated the original
claimant and on the testimony of original
claimant which was recorded earlier, re
decided the entire lis and even came to its
own finding and even did not grant the full
amount of medical expenses which was
earlier granted by tribunal of competent
jurisdiction. The reason for reducing the
claim was that the documents were not
proved and that deceased died due to
kidney
failure
and
after
prolonged
treatment passed away.

11. It is submitted by the counsel for the
appellants that the Tribunal was suppose to
decide only the liability and not the
compensation awarded. Had the tribunal
awarded compensation also been decided as
per law and or at least granted what the
earlier tribunal had granted, the appellants
would not have been forced to prefer this
appeal for pressing for what is known as just
compensation under Section 166 of the Act.
The chronology of events would show that
the main claimant in his life time had a award
and decree passed in his favour and the same
had to be executed. The Tribunal on reappreciation of evidence disallowed majority
of the claim amount under the head of
medical expenses on the ground that the
documents were not proved and granted
paltry sum of Rs. 1,19,000/- as medical
expenses as against more than twenty lacs
spent by the claimant by the time award dated
27.9.2010 was pronounced.

12. We would be obliged to decide as to
whether the approach of the Tribunal in
awarding compensation by award dated
29.7.2010 and 4.5.2018 can be sustained.

13.

The
accident
occurred
on
22.02.2005 is not in dispute and the injured
was rushed to hospital where he was treated
for injuries received due to accident. The
original claimant who was going on his
vehicle at 7.45 a.m and was hit by bus
bearing No.DL IP 6567 which was being
4 All. (Deceased)Satish Chand Sharma & Ors. Vs. Manoj & Anr.
69
driven by driver rashly and negligently. The
said finding of fact does not require any
further elaboration as it has attained finality.

14. From the record available which we
have minutely perused it is evident that the
claim petition was allowed in favour of the
original injured claimant when he was alive
way back in the year 2010 and the decree was
passed against the owner as though policy was
produced, as it was not proved to exist on date
of accident and that the terms were fulfilled or
not was not proved the Insurance Company was
not made liable is also bad as the policy papers
were valid at the time of accident and hence
recovery rights could have been granted or not
but we do not go in ti that issue in this appeal as
the said finding is not challenged,

15 . The Tribunal while deciding the claim
petition on 29.7.2010 held that as the injured
was in service and his pay package had
increased no amount under pecuniary loss was
awarded, the documentary evidence was
produced as far as medical expenses which
came to Rs. 20,84,750/- was the amount, which
was rounded up to Rs. 20,16,500/- awarded and
loss of five months' salary for(163 days), which
came to Rs. 63,250/- and Rs. 5,000/- was added
for pain shocks and sufferings was granted

16. As narrated above this decree was
sought to be executed against the owner of
the vehicle. The difficulty of the original
claimant now started because the owner of
the vehicle did not bring any documents
before the Executing Court in his defence
but instead of depositing the amount after a
period of three years filed an application
being Application No. 14 of 2013 in MACP
No. 516 of 2005 for stay and to set aside the
decree qua him. even without condoning the
delay the learned Tribunal on 24.05.2013
stayed the recovery. It appears that the
objections raised by the claimants and the
insurance company were not considered by
the Tribunal while allowing the application to
set aside the decree..

17. With this prelude we decide the lis
between the parties and the question of law
namely whether the tribunal could due to the
prolong litigation re decide compensation
already awarded or it was to confine itself to the
objection raised by the owner namely that
insurance company was to satisfy the decree.

18. The Tribunal which decided the
matter in the year 2010 had framed the
following five issues and answered the same.
The subsequent tribunal decided these issues
but gave different reasons

"(१) क्या दिनाांक 22-02-2005 को समय
७:४५ बजे प्रातः याची सतीश चांि शमाा जब अपनी
मोटरसाइदकल सांख्या UP14P5863 हीरो ह ांडा से अपने
कायाालय उत्तर प्रिेश राज्य औद्योदिक दिकास दनिम
ग़दिआबाि जा रहा था तो पटेलनिर दतराहे पर पटेल
निर की ओर से आ रही बस सां० DL1P6567 दजसका
चालक िाहन को तेजी ि लापरिाही से चला रहा था, ने
उसकी मोटरसाइदकल में सामने से बायीां तरफ टक्कर
मार िी दजसके कारन याची िांभीर रूप से घायल हो िया?

(२) क्या िुघाटना के समय प्रश्नित िाहन
DL1P6567 दिपक्षी सांख्या - २ के यहाां बीदमत नहीां था ?
यदि हााँ तो प्रभाि ?

(३) क्या िुघाटना के समय िुघाटना से
ग्रस्त िाहन सांख्या DL1P6567 के चालक के पास
िैध एिां प्रभािी लाइसेंस नहीां था? यदि हााँ तो प्रभाि ?

(४) क्या िुघाटना के समय िुघाटना से
ग्रस्त िाहन सांख्या DL1P6567 बस चलाने की िैध
परदमट नहीां था ? यदि हााँ तो प्रभाि ?

(५) क्या याची प्रदतकर पाने का अदधकार
है यदि हााँ तो दकतना ि दकस पक्ष से?"
70 INDIAN LAW REPORTS ALLAHABAD SERIES

19. The Issue No.1 as as can be seen
related to the negligence and who was
negligent? Whether the driver of the
motorcycle No. U.P. 14 P 5863 who was
driving Hero Honda was negligent or the
driver of the Bus No. DL IP 6567 was
negligent? The Tribunal while deciding this
lis vide award dated 27.9.2010 held in
favour of the claimant but while deciding
this issue afresh in the year 2018, it went
on to hold that the death was due to
dialysis. This finding cannot withstand the
judicial scrutiny as it was not within the
purview of the tribunal to decide how the
claimant died while deciding issue relating
to negligence and was beyond the purview
of the said issue as the wordings suggest
the said observations were unwarranted.
However, the final finding is that accident
occurred because of rash and negligent
driving of the driver of the offending
vehicle and no negligence was attributed to
claimant)deceased).

20. As far as the Issues No. 2, 3 and 4
are concerned, the Tribunal returned the
finding in favour of the claimants and
owner
and
held
that
the
Insurance
Company would be liable as the documents
subsequently filed by owner proved that
there was no breach of policy conditions.
The Tribunal while re deciding the case
ventured and also to decide Issue No.5 also
afresh and decided all other issues afresh
and granted compensation to the tune of
Rs. 2,02,967/-only with 7%, rate of interest
from the date of filing of the claim petition
till realisation against owner and insurance
company jointly and severely.

21 This takes us to the crux of the
matter, namely whether the tribunal had
power to re decide compensation awardable
to the claimant who passed away before the
decree was recalled or set aside.

22. The learned counsel for the
appellant heavily relied on decisions cited
herein below so as to contend that the lis
even after allowing the application under
Order 19 Rule 13 of C.P.C. was between
the owner and the Insurance Company .
The claimant and thereafter his heirs could
not have been put to disadvantage due to
efflux of time .It is further submitted that
the owner was agitated only qua the party
who should satisfy the decree as policy
conditions of insurance was not breached
and the owner had satisfied the tribunal as
early as 2013 when stay was granted
against
implementation
of
recovery
warrants that insurance company should be
saddled
with
liability.
It
is
further
submitted that the reasonings given by the
tribunal
to
reduce
the
compensation
payable
is
also
based
on
wrong
interpretation of the judgments relied as it
was proved that deceased died after the
award and the subsequent tribunal could
not come to the finding that documents
were not proved. The decisions relied by
the appellants are as follows:-

(1).
Sanjiv
Mishra
Vs.
Ramashcharya Verma and others, 2010
(4) T.A.C. 113 (All.);

(2).
Madhuben
Maheshbhai
Patel and Ors Vs. Joseph Francis Mewan
& 1 Anr, 2014 LawSuit (Guj) 2214; and

(3).
Samarjeet
Singh
Vs.
Khursheed Khan and others, 2020 (12)
ADJ 168.

23. It is submitted by the learned
counsel for the appellants that decision
rendered in the case of Sanjiv Mishra
(supra), Division Bench of this Court has
decided two appeals namely one filed by
the claimants and other filed by the
Insurance Company The appeal of the
4 All. (Deceased)Satish Chand Sharma & Ors. Vs. Manoj & Anr.
71
Insurance Company was dismissed. The
order of the Tribunal regarding the
compensation was upheld and modified.
The factual aspect about injuries and thecompensation payable was considered IT is
further submitted that in the decision titled
Madhuben Maheshbhai Patel and Ors
(supra) is pressed into service as the
Division Bench of the Gujarat High Court
decided the fact whether subsequent death
of injured-claimant would abate the cause
of action or right of legal representative
would survive and to what compensation
they would be entitled. Lastly it is
submitted that the entire exercise is bad and
against the object of the Act for which
learned counsel relies on the decision in
Samarjeet Singh(supra). It is further
submitted on behalf of the claimants that
the deceased passed away because of the
after effect of the accident and the cause of
death was also attributable to the injuries
caused and therefore the finding of fact by
the tribunal that the claimant died solely
due to kidney failure is bad in eye of law
and is based on misreading of the evidence
of treating doctors witness no 3 and 4 who
have orally deposed and proved medical
bills and certificates produced prior to 2010
and later on . Learned counsel for the
appellants has submitted that on the basis
of the ratio of the judgements relied the
claimants
who
are
heirs
and
legal
representatives of the original claimant are
entitled to the loss to the estate which
would include personal expenses incurred
on the treatment and other claims related to
the loss to the estate.

24 Per contra, the learned counsel for
the insurance company while supporting
the judgment of the Tribunal whose
judgment is impugned herein relied on
decision of Supreme Court in Vijay Singh
Vs. Shanti Devi and others, AIR 2017
SC 5672 and has contended that once an
ex-parte decree has been set aside, the
matter had to be decided afresh.

25. It would be profitable to
reproduce paragraphs 9 to 12 of the
decision in Sanjiv Mishra (supra):-

"According to us, argument which
has been made by the learned Counsel
appears to be fallacious. Whether the law is
codified or not, is not the subject matter nor
the situation is contemplated in the Indian
law. Therefore, requirement of the evidence
is necessary to come to a conclusion by the
Court whether the subsequent injury is
independent or consequential to the accident.
If it is independent, claim has to be refused.
But if it is consequential due to loss of any of
his usual skill, which was lost due to
accident, Insurance Company cannot shirk
the liability.
So far as the total claim is concerned, though
this seems to be more than Rs.10 lacs (ten
lacs),
but
the
medical
expenses
is
Rs.7,69,296/- (Seven lacs sixty nine thousand
two hundred ninety six). Therefore, the
claimant only got the compensation of
Rs.3,06,000/- (Three lacs six thousand). The
accident is of the year 2002. The original
order of the Tribunal is of the year 2006.
Now it is the year 2010. By the passage of
time, much more expenditure might have
been incurred which cannot be part and
parcel of the claim. Therefore, taking into the
totality of the facts, we cannot refuse any
compensation on the basis of the order,
passed by the Tribunal. Hence, we uphold the
order of the Tribunal.

Learned
counsel
for
the
appellant-Insurance Company has made
his submission with regard to the rate of
72 INDIAN LAW REPORTS ALLAHABAD SERIES
interest which according to them ought to
be at the rate of 6%. We are of the view
that the Tribunal has passed the order
carrying on the interest @ 6% but when
this Court has passed the order in the
earlier occasion directed to deposit the
entire sum within 60 days, but the
Insurance Company instead of depositing
the same, only by making an application
for recalling the order dated 18.11.2009,
they themselves become silent, which does
not favour to get reduced rate of interest.
Making a recall application itself cannot
operate as an order of stay of the order
dated 18.11.2009.

Therefore, at this stage, if we grant
any relaxation for payment of accruing
interest @ 9%, that will be indulgence to the
Insurance Company. In further, the interest
at the rate of 9%, according to us, now is
usual rate of banking interest, therefore, it
cannot be said to be excessive. Hence the
appeal of the Insurance Company is
dismissed on merits." (emphasis supplied).

The High Court of Gujarat in case
titled Madhuben (supra) held:-

"Whether the view taken by the
learned Single Judges of this Court in the
decisions referred to above as well as
decision of the Division Bench in the case of
Surpal Singh L. Gohil v. R. M. Savalia
(supra), lay down the correct proposition of
law regarding applicability of Section 306 of
the Succession Act to a claim -application
under Section 166 of the MV Act where the
claim for compensation is filed for the
personal injuries caused to the claimant and
during the pendency of the petition, he died a
natural death."

26. After a detailed discussion, the
Division Bench in case referred to it in
Madhuben (supra) has answered the
reference holding that claim would be
payable to legal heirs where claimant dies
as follows:-

"....we are of the opinion that
maxim "actio personalis moritur cum
persona" on which section 306 of the
Succession Act is based cannot have an
applicability in all actions even in an case
of personal injuries where damages flows
from the head or under the head of loss to
the estate. Therefore, even after the death
of the injured claimant, claim petition does
not abate and right to sue survive to his
heirs and legal representatives in so far as
loss to the estate is concerned, which
would include personal expenses incurred
on the treatment and other claim related
to
loss
to
the
estate.
Under
the
circumstances, the issue referred to the
Division
Bench
is
answered
accordingly....." (emphasis supplied)

27. It is an admitted position of fact
that the petitioner survived for a period of
eight years after the accident. The petition
was taken up for hearing during that period
and award was passed. The position as held
by High Court of Gujarat in light of the
decisions reported in 1991[1] GLR 352 in
the case of Jenabai Wd/O Abdul Karim
Musa Vs. Gujarat State Road Transport
Corporation,
Ahmedabad,
the
heirs
would be entitled to compensation. It
would be necessary to note the fact that the
deceased at the time of filing of the petition
and on date of decision namely 27.9.2010
was alive. The decisions on which reliance
can be placed so as to come to the finding
as to entitlement and amount admissible
would have been decided in case of Shanti
Bai and others v. Charansingh Singh and
others 1998 ACJ 848 and judgement in
case of Saruyaben Harisinghbhai Bilwal
4 All. (Deceased)Satish Chand Sharma & Ors. Vs. Manoj & Anr.
73
v/s. Ataullakhan Mehtabkhan Lalkhan
Pathan reported in 2001 [3] G.L.R. 2029.
The fact that whether his heirs would be
entitled to dependency benefit or the claimant
would be entitled to the amount of
compensation on the basis of injury sustained
in the accident will have to decided by this
court. The facts go to show that the claimant
was under the constant treatment of doctors
till the claimant survived therefore, it can
safely be held that the accident caused lot of
trauma both to the claimant as well his heirs.
There is nexus between the death of the
deceased and accidental injury. There is
sufficient evidence to the effect that death of
the deceased was due to development which
took place due to resultant multiple injuries
caused by the accident which would show
that injuries were the root cause of the death.
Therefore, heirs are entitled to compensation.
As per oral testimony of the original claimant
who was alive and there after the substituted
heirs of the deceased namely the original
claimant, who passed away after three years
of the award but he suffered till end of his life
because of this accident and incidental
diseases. Reliance on the decision titled
Surpal Singh Ladhubha Gohil Versus
Raliyatbahen Mohanbhai Savlia in Letters
Patent Appeal No. 83 of 2007 ; in First
Appeal No. 301 of 1990 decided on
December 24, 2008 where the court
considered provisions of Section 166, of the
Act, read with Order 22 Rule 1 of C.P.C.
while
considering
the
maxim
"actio
personalis moritur cum persona" and its
applicability, and, injuries sustained by
original claimant. The death of original
claimant during pendency of claim petition
his legal heirs being brought on record and
where the Tribunal held that claimants would
not be entitled to compensation since they
have no right to continue the proceedings on
the death of original claimant, since action for
personal injury abates with the death of
original claimant. The question whether
maxim
"actio
personalis
moritur
cum
persona" namely that personal right of action
abates with the death of the person, can be
imported to a social welfare legislation so as
to deny the benefits to legal heirs of a
deceased claimant, to the advantage of a
wrong doer the High Court held that strict
application of maxim "actio personlis mortiur
cum persona" cannot be imported to defeat
the purpose and object of a social welfare
legislation like Motor Vehicles Act. Once the
status of claimants as legal heirs or legal
representatives
is
conceded
and
acknowledged,
to
deny
benefit
of
compensation to them on the ground that
injury was personal to the claimant, it will be
giving a premium to the wrong doer and it
would defeat the very purpose and object of
beneficial piece legislation. The question
whether injury was personal or otherwise is
of no significance so far as wrong doer is
concerned and he is obliged to make good the
loss sustained by injured, even after death of
injured, claim petition does not abate and
right to sue survives to his heirs and legal
representatives.

28. The decision cited by learned
counsel for insurance company in Vijay
Singh( supra) will not apply at the out
set as it was in execution petition and
both the appeals against the ex-parte
decree was filed . The execution petition
was filed meanwhile and the appellant
took the possession. The application of
the defendant for setting aside ex-parte
decree was allowed throughout which is
not the case in our case . We are to
consider beneficial peace of legislation
where the Tribunal was not even asked to
reconsider the question of quantum and
interest
74 INDIAN LAW REPORTS ALLAHABAD SERIES

29. It can be safely culled out from
the record that the main purpose for filing
the application under Order 9 Rule 13
C.P.C. by the owner was to see that the
liability is mulcted on the Insurance
Company and not on them. The decree
could have been set aside in part namely
qua issue of liability as it was a award
which could be set aside in part there was
definitely severable decree. The provision
of Order 9 Rule 13 of Code of Civil
Procedure, 1908 (referred as 'C.P.C.') reads
as follows:-

"Setting aside decree ex parte
against defendant.- In any case in which a
decree is passed ex parte against a
defendant, he may apply to the Court by
which the decree was passed for an order to
set it aside; and if he satisfies the Court that
the summons was not duly served, or that he
was prevented by any sufficient cause from
appearing when the suit was called on for
hearing, the Court shall make an order
setting aside the decree as against him upon
such terms as to costs, payment into Court or
otherwise as it thinks fit, and shall appoint a
day for proceeding with the suit:

Provided that where the decree is
of such a nature that it cannot be set aside as
against such defendant only it may be set
aside as against all or any of the other
defendants also:

[Provided further that no Court
shall set aside a decree passed ex parte
merely on the ground that there has been an
irregularity in the service of summons, if it is
satisfied that the defendant had notice of the
date of hearing and had sufficient time to
appear and answer the plaintiff's claim.]

[Explanation.- Where there has
been an appeal against a decree passed ex
parte under this rule, and the appeal has
been disposed of on any ground other than
the
ground
that
the
appellant
has
withdrawn the appeal, no application shall
lie under this rule for setting aside that ex
parte decree.]."

30. In our case Order 9 Rule 13
C.P.C.
could
not
have
been
made
applicable by setting aside the entire decree
instead partial modification of decree even
in execution could have been resorted to
which would have served the purpose of all
the litigating parties. Even if during the
execution, proceedings it was brought to
the notice of the executing court that the
vehicle was insured, the liability could have
been fastened on the contesting insurance
company with whom the vehicle was
insured. We may hold that the documentary
evidence,which was placed and that part
could have be ordered as expeditiously as
possible, may on the first hearing before
the Tribunal by directing owner to produce
all the documents which were subsequently
produced,these facts showed that there
were no breach of policy conditions and
that part of the finding namely Issue Nos. 2
and 3 could have been severed, reviewed
and or Order 9 Rule 13 C.P.C. could not
have been made fully applicable. Thus, the
judgment under challenge is erroneous.
Fresh finding of quantum could not have
been given on the same set of evidence
recorded in the matter .

31.