Writ Petition No. 3 of 1995

18th November, 1998

Petitioner Counsel: Shri. M. B. DA COSTA
Respondent Counsel: Shri. E. AFONSO

Cases Cited:
1983 ACJ 34 [Para 2]
1985 ACJ 539 [Para 2]
1988 ACJ 417 [Para 2]
1991 ACJ 573 [Para 2]
1991 ACJ 585 [Para 2]
1991 ACJ 707 [Para 3]
1995 ACJ 706 [Para 3]

JUDGMENT

BATTA, J.:- The original claimant Dr. Skoda Afonso, had filed a claim Petition for seeking compensation on account of injuries suffered by him in the accident which took place on 17-10-89. This Claims Petition was dismissed for default on 7-2-92. An application for restoration was filed by the original Claimant along with condonation application on 24-3-92. During the pendency of this restoration application the Claimant died on 26-5-92. The legal representatives of the Claimant filed an application on 24-8-92 to bring them on record. After granting the condonation application the Claims Tribunal dismissed the application for bringing the legal heirs on record as well as the application for restoration vide impugned Order dated 30th August, 1994 which is subject matter of challenge in this Writ Petition.

2. Learned Advocate Shri M. B. da Costa, appearing on behalf of the legal representatives of the original Claimant, has placed before us three submissions namely:-

(i) That legal representatives have to be given an opportunity by bringing them on record to prove that the death has resulted on account of injuries suffered in the accident and the application to bring legal representatives on record could not be rejected unless an opportunity to that effect was given to the legal representatives after bringing them on record.

(ii) At any rate, even if the death was not on account of injuries suffered in the accident, the legal representatives are entitled to claim loss to the estate and for that purpose legal representatives are required to be brought on record.

(iii) Section 306 of the Indian Succession Act is not in force and the provision which is applicable in Goa according to him is Article 2366 of the Portuguese Civil Code.

In support of his propositions, he has placed reliance on Narinder Kaur and others vs. State of Himachal Pradesh and others (1983 A.C.J., 34), Sampati Lal Vs. Hari Singh and others (1985 A.C.J., 539), Maimuna Begum and others Vs. Taju and others (1988 A.C.J., 417), Pushpam Vs. Nirmale and another (1991 A.C.J., 573) and Jenabai and others Vs. Gujarat State Road Trans. Corpn. and Others (1991 A.C.J., 585).

3. On the other hand, learned Advocate Shri E. Afonso, after placing reliance on a Full Bench Judgment of the Karnataka High Court in Kannama Vs. Deputy General Manager, Karnataka State Road Trans. Corpn. (1991 A.C.J., 707) as well as of the Madhya Pradesh High Court in Shantabai Dube and another Vs. Kanhaiyalal and another (1995 A.C.J., 706) has urged before us that the Claim Petition was liable to be dismissed on account of the death of the original Claimant since the cause of action does not survive on account of his death. Insofar as the Division Bench ruling of the Bombay High Court in Maimuna Begum Vs. Taju (supra) upon which reliance has been placed by learned Advocate for the petitioners is concerned, his contention is that the said ruling is not attracted to the facts and circumstances of the case since the Division Bench in the said ruling was dealing with a situation where an award had already been passed and it was during the pendency of the appeal that the Claimant had died.

4. The Claim Tribunal has relied upon the Full Bench Judgment of the Karnataka High Court in Kannamma Vs. Deputy General Manager (supra) and dismissed the application in question. It appears that the attention of the Claims Tribunal was not drawn by any of the parties to the Division Bench ruling of this Court in Maimuna Begum Vs. Taju (supra).

5. We shall first take up the contention of learned advocate for the petitioners that Section 306 of the Indian Succession Act is not in force in Goa since a number of rulings upon which reliance has been placed have drawn their conclusions based upon the provisions of section 306 of the Indian Succession Act which reads as under :-

"306. All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease survive to and against his executors or administrators; except causes of action for defamation, assault as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also causes where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory."

There is no dispute that Section 306 of the Indian Succession Act has not been extended to Goa. However, our attention has been drawn to Articles 2361 and 2366 by learned advocate for the petitioners and Article 1737 of the Portuguese Civil Code by learned Advocate for the respondents. The translation of the said Articles 2361 and 2366 have been furnished by the learned Advocate for the petitioners and the translation of Article 1737 is found at page 6 of the impugned order. The said translation is as under :-

"Art. 2361 :

Every person who violates or offends rights of another is under an obligation to compensate the aggrieved person for all the losses he causes.

Art. 2366 :

The right to demand compensation as well as the obligation to give is transmitted with the inheritance, except in cases where the law expressly provides otherwise.

Art. 1737 :

The inheritance covers all the properties, rights and obligations of the author, which are not merely personal or which are otherwise excepted by the disposition of the author himself or by law."

Article 2366 of the Portuguese Civil Code clearly lays down that the said provision is applicable in cases where the right to demand compensation as well as the obligation to give is transmitted with the inheritance except in cases where the law expressly provides otherwise. Article 1737 of the Portuguese Civil Code also deals with the Same subject involving rights and obligations relating to inheritance of properties and it provides that the inheritance covers all properties, rights and obligations of the author, which are not merely personal or which are otherwise excepted by the disposition of the author himself or by law. Therefore, those rights which are merely personal, are excluded from the rights and obligations in relation to the properties insofar as the inheritance is concerned. Therefore, we find that Article 1737 is more or less akin to Section 306 of the Indian Succession Act.

6. The question which is required to be determined in this Writ Petition is whether on the death of the claimant during the pendency of the Claim. Petition filed on account of injuries suffered by the Claimant, the cause of action would survive on the death of the claimant for the purpose of prosecuting the Claim Petition by the legal representatives. The common law maxim action personalise moritur cum persona was not only criticised in the country of its origin but the Indian Courts have generally taken the view that the maxim should not be applied as a part of our law except, of course, where especially engrafted in a statute and that the principles of justice, equity and good conscience should be followed. In cases resulting into death of the claimant during the pendency of the Claim Petition, as a result of injuries suffered during the accident there can be no doubt that cause of action would survive for the legal representatives. In cases where there is death relating to injuries suffered in the accident, then the Claim petition can obviously be filed by the legal representatives, for compensation both for personal injuries and loss of property and in such cases where claimant dies during the pendency of Claim Petition, the legal representatives can obviously prosecute the Claim Petition for compensation both for personal injuries and loss of property. It does not sound to reason that if initially the claimant who has filed claim for compensation due to injuries on account of the accident dies during the pendency of the Claim Petition and the death can be directly co-related with the injuries suffered by him in the accident, then the legal representatives should not be permitted to pursue the Claim Petition as originally filed by the petitioners. The position would be different in cases where death of claimant during pendency of Claim Petition is not on account of injuries suffered in the accident and in such cases cause of action would survive for legal representatives only in so far as loss to the estate is concerned.

7. In the case before us the legal representatives had merely filed an application stating that the original claimant had passed away on 26-5-92 as a bachelor, leaving behind legal representatives and, as such, they should be brought on record. There was no averment whatsoever in this application for bringing legal representatives on record as to whether the death of the original claimant was as a result of injuries suffered in the accident or otherwise. The accident, admittedly, took place on 17-10-89 and the original claimant died on 26-5-92 i.e. almost about 2 1/2 years of the accident and there is absolutely nothing to suggest nor any prima facie material has been placed on record by the legal representatives that the death was as a result of the injuries suffered in the accident.

8. Be that as it may, if the death of the claimant is not on account of the injuries suffered in the accident, then, the cause of action would survive in favour of the legal representatives insofar as loss to the estate is concerned. This proposition is in fact well settled by a number of rulings upon which reliance has been placed by learned Advocate for the petitioners including a Division Bench ruling of this Court in Maimuna Begum and others Vs. Taju and others (supra). It is no doubt true that the Division Bench in this ruling was dealing with a situation where the award had already been passed in favour of the claimant and the claimant had filed an appeal seeking enhancement and it is during the pendency of the appeal that the claimant had died. Nevertheless, the principles laid down by the Division Bench are directly attracted to the situation with which we are concerned in this petition. The Division Bench in para 10 of the Judgment has come to the conclusion that even the legal representatives can claim damages for loss to the estate of the deceased and it is difficult to see as to why an action initiated by an injured for damages on account of loss to his property should not be made to survive to his legal representatives on his death pending an action already launched by him. Of course, in the said case before the Division Bench, the learned Judges had given additional reason in relation to the situation where award has already been passed and it was pending appeal filed by the claimant for enhancing the claim.

9. We are in respectful agreement with the proposition of law laid down by the Division Bench and this ruling of the Division Bench has been followed by another Division Bench of this Court in Shri Hiru K. Borkar Vs. Mr. Suresh B. Kankonkar and others (First Appeal No. 31/95) wherein also one of the parties had placed reliance on the Full Bench judgment of the Karnataka High Court, on which learned advocate Shri Afonso in the petition before us has also placed reliance. In view of the above, the impugned order passed by the Claims Tribunal is liable to be set aside. The legal representatives sought to be brought on record shall be permitted to be joined in the Claim Petition and the Claims Tribunal shall deal with the Claim Petition in accordance with the observations made in this judgment.

10. The Writ Petition is therefore, allowed and the Order dated 30-8-94 of the Claims Tribunal is set aside. Consequently, the restoration application is allowed. Rule made absolute in the aforesaid terms with no order as to costs.

Petition allowed.