IN THE HIGH COURT OF DELHI AT NEW DELHI
MAC.APP. 432/2009
BAJAJ ALLIANZ GENERAL
INSURANCE CO. LTD.
.. Appellant
Through : Mr. Atul Nanda, Adv.
versus
KAMLA BIST & ORS.
..... Respondents
Through : Mr. Arun Mohan, amicus
curiae.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
ORDER
04.11.2009
CM Nos.12670-71/2009
1.
Allowed, subject to just exceptions.
2.
CMs stand disposed of.
MAC.APP.No.432/2009, CM No.12672/2009 and CM No.12669/2009
1.
Issue notice to the respondents as well as learned counsel for the
respondents who appeared before the learned Tribunal by ordinary process,
registered A.D. post as well as be given Dasti, returnable on 7 th December,
2009.
2.
The LCR be requisitioned before the next date of hearing.
MAC.APP. 432/2009
page 1 of 9
3.
The appellant has challenged the award of the learned Tribunal
whereby
compensation
of
Rs.7,30,680/-
has
been
awarded
to
claimants/respondents No.1 to 5.
4.
The accident dated 27th May, 2002 resulted in grievous injuries to
Hikmat Singh who filed the claim petition before the learned Tribunal.
Hikmat Singh expired on 29th August, 2006 during the pendency of the
claim petition whereupon his legal representatives, namely, respondents
No.1 to 5 were substituted in his place and they continued the claim
petition.
5.
The learned counsel for the appellant submits that the claim petition
abated on 29th August, 2006 upon the death of Hikmat Singh and the right
to sue did not survive in favour of claimants/respondents No.1 to 5.
6.
Mr. Arun Mohan, Senior Advocate was appointed as amicus curiae to
assist this Court vide order dated 9th September, 2009. The learned amicus
curiae refers to 178th Report of the Law Commission in which the Law
Commission has recommended the amendment to Section 306 of the Indian
Succession Act, 1925 as well as Section 166 of the Motor Vehicles Act, 1988
to
provide
for
initiation/continuation
representatives of the injured person
of
proceedings
by
the
legal
MAC.APP. 432/2009
page 2 of 9
upon his death. The Law Commission has referred to Full Bench judgment
of Karnataka High Court in the case of Kannamma Vs. Dy. General
Manager
ILR
1990
Karn.
4300
(FB)
in
which
the
Full
Bench
recommended that the provisions of Section 306 of the Indian Succession
Act, 1925 and of Section 110A of the Motor Vehicles Act, 1939 be amended
so as to permit the survival of the right of the injured person to seek
compensation to his legal representatives, irrespective of whether the
cause of death was relatable to the accident or not.
In the subsequent, Single Bench judgment of Karnataka High Court in
the case of Baburao Sataba Manabutaker vs. Doreswamy (MFA
4072/1998 dated 4.9.2001) lamented delay in amending the law and
pointed out that the delay in amendment is causing grave injustice.
7.
The Law Commission made the following recommendations:We shall, therefore, deal with these amendments seriatum:
(A)
Section 306 of the Indian Succession Act, 1925 and
illustration
(i)
below the section:Section 306 of the Indian Succession Act, 1925 states
MAC.APP. 432/2009
page 3 of 9
that among certain other rights, the right of the injured person to seek
damages is personal to him and will not survive to his legal representatives.
This position so far as accident compensation is concerned, is no longer
acceptable in todays social jurisprudence.
In fact, such a provision has
been given up in England as far back as in 1934. Indian courts have also
felt that this provision in Section 306 which does not conform to todays
standards of justice and has to be deleted. We are also of the view that this
provision is too anachronistic to be allowed to continue in the statute book.
Section 306 as it now stands reads as follows; in so far as it is relevant
for the present purpose:
Section 306: All demands whatsoever and all rights to
prosecute .. any action or special proceeding existing in
favour of a person at the time of his decease, survive to
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.
There is an illustration below Section 306 and it reads as follows:
Illustrations (i): A collision takes place on a railway in
consequence of some neglect or default of an official, and a
passenger is severely hurt, but not so as to cause death. He
afterwards dies without having brought any action. The cause
of action does not survive.
MAC.APP. 432/2009
page 4 of 9
We are of the view that the underlined words in Section 306, namely,
(a)
assault as defined in the Indian Penal Code, or other personal
injuries not causing the death of the party shall be omitted.
(b)
(B)
illustration (i) shall be omitted.
Section 166 of the Motor Vehicles Act, 1988: Amendment to provide
for initiation/continuation of a proceeding under the Act by the legal
representatives of an injured person upon his death even if the death
has no relation or nexus with the accident:
The existing provisions of Section 166 of the Motor Vehicles Act, 1988
are as follows in so far as they are relevant:
Section 166: An application for compensation arising out of an
accident of the nature specified in sub section (1) of Section
165 may be made(a) by the person who has sustained the injury;
or
(b) by the owner of the property; or
(c) where death has resulted from the accident,
by
all or any of the legal representatives of
the deceased;
or
(d) by any agent duly authorized by the person
injured or all or any of the legal
representatives of the deceased,
as the
case may be:
MAC.APP. 432/2009
page 5 of 9
Provided that where all the legal representatives of the
deceased have not joined in any such application for
compensation, the application shall be made on behalf of or for
the benefit of all the legal representatives of the deceased and
the legal representatives who have not so joined, shall be
impleaded as respondents to the application.
Sub section (2) and (3) of Section 166 deal with the form, the time
limit for filing the application and sub section (4) requires the police officer
to file a copy of the report before the Claims Tribunal. The Tribunal may, if
it thinks necessary so to do, treat the report as if it were an application for
compensation under the Act.
In the light of what we have said earlier, we propose insertion of a new
sub section (5) in Section 166 as follows:
(5) Notwithstanding anything in this Act or any law for the
time being in force, the right of a person to claim
compensation for injury in an accident shall upon the death of
the person injured, survive to his legal representatives,
irrespective of whether the cause of death is relatable or had
any nexus with the injury, or not.
Provided that in cases where the cause of death is not
relatable or has no nexus with the injury, the compensation
shall be restricted to the period between the date of injury and
the date of death of the person injured.
MAC.APP. 432/2009
(C)
page 6 of 9
Section 110A of the Motor Vehicles Act, 1939 (as applied to pending
proceedings in Tribunal or Courts: Transitory provision to be made to
provide for initiation/continuation of a proceeding under the Act by the
legal representative of the injured person upon his death, even if the
death has no relation or nexus with the accident:
The Motor vehicles Act, 1939 has been repealed by the Motor Vehicles
Act, 1988 but it is possible that several proceedings initiated under that Act
may still be pending either before the Motor Accident Claims Tribunal or at
the appellate stage. Such proceedings are obviously saved under Section
217(2) of the Motor Vehicles Act, 1988.
By way of abundant caution and with a view to cover such pending
cases we recommend the following provision to be made.
Section 217A Certain pending proceedings relating to
compensation under the Motor Vehicles Act, 1939 not to abate:
Notwithstanding anything contained in the Motor Vehicles Act,
1939 or any law for the time being in force, in respect of
claims for compensation under the said Motor Vehicles Act,
1939 which are pending at any stage, at the date of
commencement of this Act in any Tribunal or
MAC.APP. 432/2009
page 7 of 9
Court, the right of an injured person to claim compensation
shall upon the death of the injured person survive to his legal
representatives, irrespective of whether the cause of death
was relatable or had any nexus with the injury or not,
Provided that in cases where the cause of death is not
relatable or has no nexus with the injury, the compensation
shall be restricted for the period between the date of injury
and the date of death of the person injured.
8.
The Government is still to act on the recommendation of 178th Report
of Law Commission and the position continues as it is which is causing
grave injustice to the victims of the road accident.
9.
Since the Government has now appointed a Committee to review the
entire Motor Vehicles Act, the copy of this order be sent to the Secretary,
Ministry of Road Transport and Highways. The copy of this order be also
sent to Mr. S. Sunder, Chairman of the Expert Committee appointed by
Ministry of Road Transport and Highways to consider the recommendations
of the Law Commission.
10.
Subject to the deposit of Rs.1,00,000/- by the appellant with the
Registrar General of this Court within 30 days, the execution of the
impugned award shall remain stayed.
MAC.APP. 432/2009
11.
page 8 of 9
Upon the aforesaid deposit being made, the Registrar General is
directed to keep the said amount as well as the statutory amount of
Rs.25,000/- in fixed deposit initially for a period of six months to be
renewed till further order.
12.
Copy of this order be given Dasti to learned counsel for the parties
under signatures of Court Master.
J.R. MIDHA, J
NOVEMBER 04, 2009
aj
MAC.APP. 432/2009
page 9 of 9
