THE ORIENTAL INSURANCE COMPANY LIMITED versus KAHLON @ JASMAIL SINGH KAHLON (DECEASED) THROUGH HIS LEGAL REPRESENTATIVE NARINDER KAHLON GOSAKAN AND ANOTHER on 16 August 2021

THE ORIENTAL INSURANCE COMPANY LIMITED

v.

KAHLON @ JASMAIL SINGH KAHLON (DECEASED)THROUGH HIS LEGAL REPRESENTATIVE NARINDERKAHLON GOSAKAN AND ANOTHER

(Civil Appeal No. 4800 of 2021)

AUGUST 16, 2021

[NAVIN SINHA AND R. SUBHASH REDDY, JJ.]

Motor Vehicles Act, 1988: s. 166 (a) – Compensation – Injuriescaused in a motor accident – Claimant suffered 100 per cent physicaldisability in a motor accident – Claim for compensation – Award ofRs. 1,00,000/- with 9% interest – Appeal before the High Court –During pendency of the appeal, death of claimant, not attributed toinjuries suffered in the accident – Substitution of name of claimant’sdaughter in the appeal – High Court enhanced the compensationto Rs 37,81,234/- – On appeal, held: The Act is a beneficial andwelfare legislation – If the legal heirs can pursue claims in case ofdeath, the legal representatives can also pursue claims for loss ofproperty akin to estate of the injured if he is deceased subsequentlyfor reasons other than attributable to the accident or injuries underClause 1(c) of s.166 – Such a claim would be completely distinctfrom personal injuries to the claimant and which may not be thecause of death – Such claims of personal injuries would undoubtedlyabate with the death of the injured – Insurer has a statutoryobligation to pay compensation in motor accident claim cases –This obligation cannot be evaded behind the defence that it wasavailable only for personal injuries and abates on his deathirrespective of the loss caused to the estate of the deceased becauseof the injuries – Total compensation reassessed as Rs.28,42,175/-with interest @ 9% p.a. from the date of filing of the claim petition,till its realisation.

Partly allowing the appeal, the Court

HELD: 1.1 The Act is a beneficial and welfare legislation.Section 166(1)(a) of the Motor Vehicles Act, 1988 provides for astatutory claim for compensation arising out of an accident by theperson who has sustained the injury. Under Clause (b),

A

B

CDEFG

H

Acompensation is payable to the owner of the property. In case ofdeath, the legal representatives of the deceased can pursue theclaim. Property, under the Act, will have a much wider connotationthan the conventional definition. If the legal heirs can pursueclaims in case of death, there is no reason why the legalrepresentatives cannot pursue claims for loss of property akin toBestate of the injured if he is deceased subsequently for reasonsother than attributable to the accident or injuries under Clause1(c) of Section 166. Such a claim would be completely distinctfrom personal injuries to the claimant and which may not be thecause of death. Such claims of personal injuries would undoubtedlyCabate with the death of the injured. What would the loss of estatemean and what items would be covered by it are issues which hasto engage the attention. The appellant has a statutory obligationto pay compensation in motor accident claim cases. This obligationcannot be evaded behind the defence that it was available onlyfor personal injuries and abates on his death irrespective of theDloss caused to the estate of the deceased because of the injuries.[Para 9][475-E-H; 476-A]

1.2 The injuries suffered by the deceased in the accidentrequired prolonged hospitalization for six months. The extent ofdisability suffered was assessed on 16.06.2000 as 100%. TheEextent of disability, pursuant to physiotherapy was reassessed as75% on 08.08.2002. In the interregnum, the injured resignedhis job on 30.09.2001 at the age of 53 years as he found movementdifficult and inconvenient without an attendant as distinct fromcomplete immobility. The injured was possessing professionalFqualifications in labour laws and Industrial relations along with aDiploma in Personnel Management. He may have had to suffersome handicap in also practicing before the labour court, butcannot be held to have suffered 100% physical disability as hiscapacity for rendering advisory and other work coupled with

movement on a wheel chair with the aid of an attendant could stillGfacilitate a reduced earning capacity. It cannot be held that theinjured was completely left with no source of livelihood except todeplete his estate. In assessing, what has been described as a‘Just Compensation’ under the Act, all factors includingpossibilities have to be kept in mind. [Para 17][478-C-F]H

THE ORIENTAL INSURANCE COMPANY LIMITED v. KAHLON @ JASMAILSINGH KAHLON (DECEASED) THROUGH HIS LEGAL REPRESENTATIVENARINDER KAHLON GOSAKAN AND ANOTHER

1.3 The tribunal, on technicalities rejected his claim forsalary, medical expenses and percentage of disability and granteda measly compensation of Rupees one lakh only by a cryptic order.Therefore, while the claim for personal injuries may not havesurvived after the death of the injured unrelated to the accidentor injuries, during the pendency of the appeal, but the claims forloss of estate caused was available to and could be pursued bythe legal representatives of the deceased in the appeal. [Para18][478-F-H]

1.4 Loss of estate would include expenditure on medicines,treatment, diet, attendant, Doctor’s fee, etc. including incomeand future prospects which would have caused reasonableaccretion to the estate but for the sudden expenditure which hadto be met from and depleted the estate of the injured,subsequently deceased. However, the compensation under thehead pain and suffering being personal injuries is held to beunsustainable and is disallowed. The High Court has not awardedanything towards medical expenses despite hospitalisation forsix months being an admitted fact. Therefore, a sum ofRs.1,00,000/- is awarded towards medical expenses. Hence, thereassessed total compensation would be Rs.28,42,175/-. Theappellant is thus, directed to pay to respondent no.1 within aperiod of four weeks Rs.28,42,175/- along with interest @ 9%p.a. from the date of filing of the claim petition, till its realisation.[Para 20-22][479-B-E; 480-A]

Kanamma v. Deputy General Manager, ILR 1990Karnataka 4300; Uttam Kumar v. Madhav and Another,ILR 2002 Karnataka 1864; Umedchand Golcha v.Dayaram and Others, 2002(1) MPLJ 249; PravabatiGosh and Another v. Gautam Das and Others, 2009(4)GLR 64; Raj Kumar v. Ajay Kumar and Another, (2011)1 SCC 343 : [2010] 13 SCR 179; Surpal SinghLadhubha Gohil v. Raliyatbahen Mohanbhai Savliaand Ors., 2009(2) GLH 217; Munni Devi and Othersv. New India Assurance Co. Ltd., 103 (2003) DLT 464;Venkatesan v. Kasthuri, 2014 ACJ 1621; MaimunaBegum and Others v. Taju and Others, 1989 MhLJ 352;Parmindar Singh v. New India Assurance Co. Ltd. &

A

B

C

D

E

F

G

H

AOrs., (2019) 7 SCC 217 : [2019] 8 SCR 986; Kajal v.Jagdish Chand & Ors., (2020) 4 SCC 413; MadhubenMaheshbhai Patel v. Joseph Francis Mewan andOthers, 2015 (2) GLH 499; Joti Ram v. Chamanlal, AIR1985 P&H 2; Thailammai v. A.V. Mallayya Pillai, 1991ACJ 185 (Mad) – referred to.B

Case Law Reference

FCIVIL APPELLATE JURISDICTION: Civil Appeal No.4800 of2021.

From the Judgment and Order dated 27.08.2019 of the High Courtof Punjab and Haryana at Chandigarh in FAO No.1386 of 2007.

GH. Chandra Sekhar, Adv. for the Appellant.

Nikhil Goel, Adv. for the Respondents.

H

THE ORIENTAL INSURANCE COMPANY LIMITED v. KAHLON @ JASMAILSINGH KAHLON (DECEASED) THROUGH HIS LEGAL REPRESENTATIVENARINDER KAHLON GOSAKAN AND ANOTHER

The Judgment of the Court was delivered by NAVIN SINHA, J.

1. Leave granted.

2. A claim arising out of injuries caused in a motor accidentthat has reached its fruition more than 20 years later before this Court,which we find extremely distressing. The original claimant and his wife,both did not survive the ordeal to see the fruits of the litigation which isnow being pursued by their daughter.

3. The facts of the case in a nutshell are that the original claimantwas severely injured in a motor accident on 02.05.1999. He filed a claimfor compensation under Section 166(1)(a) of the Motor Vehicles Act,1988 (hereinafter referred to as ‘the Act’). The Motor Accidents ClaimsTribunal on 02.11.2006 awarded him a sum of Rs.1,00,000/- only with9% interest. Dissatisfied, the original claimant preferred an appeal beforethe High Court. Unfortunately, he was deceased on 06.11.2015 duringthe pendency of the appeal, not attributed to the injuries suffered in theaccident. The daughter of the claimant, who was an unmarried girl aged21 years at the time of the accident, was substituted in the appeal. TheHigh Court substantially enhanced the compensation.

4. Shri H. Chandra Sekhar, learned counsel on behalf of theappellant, submits that the cause of action being personal to the injuredabates on his death, which was not caused due to the accident. The legalheir is entitled only to such compensation which forms part of the estateof the deceased. Loss of salary, future prospects, pain and sufferingalong with attendant charges do not form part of the estate of thedeceased. The compensation could not have been fixed by applicationof multiplier as it was not a case of death caused or occasioned by ordue to the accident. The amount awarded by the Tribunal would aloneform part of the estate of the deceased. Reliance in support of thesubmissions has been placed on two Full Bench decisions of theKarnataka High Court in Kanamma vs. Deputy General Manager,ILR 1990 Karnataka 4300, Uttam Kumar vs. Madhav and Another,ILR 2002 Karnataka 1864, Umedchand Golcha vs. Dayaram andOthers, 2002(1) MPLJ 249, Pravabati Gosh and another vs. GautamDas and others, 2009(4) GLR 64. The respondent being a marrieddaughter is not entitled to any claim for any other loss of estate of thedeceased as she was not dependent on the deceased. It is lastly submitted A

B

C

D

E

F

G

H

[2021] 8 S.C.R.

Athat the High Court has erred in not deducting 1/3[rd] of the compensationamount towards personal expenses by the deceased.

5. Shri Nikhil Goel, learned counsel on behalf of the respondentno.1, submits that no deduction towards personal expenses can be madeas the deceased actually incurred expenses during his lifetime. TheBdeduction is to be made hypothetically only in a case where death hasoccurred, relying on Raj Kumar vs. Ajay Kumar and another, 2011(1)SCC 343. The submission of Shri Goel is that it is only a claim for personalinjuries that will abate with the death of the deceased. The claims suchas loss of income, medical expenses etc. will survive as part of the lossto the estate. He relies upon Surpal Singh Ladhubha Gohil vs.CRaliyatbahen Mohanbhai Savlia and Ors., 2009(2) GLH 217, MunniDevi and Others vs. New India Assurance Co. Ltd., 103(2003) DLT464, Venkatesan vs. Kasthuri, 2014 ACJ 1621 and Maimuna Begumand others vs.Taju and Others, 1989 MhLJ 352. Shri Goel next submitsthat the High Court has committed no error in awarding loss of incomeDalong with future prospects with a multiplier of 11 relying on ParmindarSingh vs. New India Assurance Co. Ltd. & Ors., (2019) 7 SCC 217and Kajal vs. Jagdish Chand & Ors., (2020) 4 SCC 413. The injuredhad suffered 100 per cent physical disability. He was unable to pursuehis life and career and had to leave his job and shift to his home townPunjab. Despite being a law graduate and professionally qualified with aEDiploma in Labour Laws, he was unable to pursue any independentcareer thereafter because of complete physical disability. Thecompensation as enhanced by the High Court is, therefore, not onaccount of personal injuries, but as loss of the estate of the deceased,and therefore, calls for no interference.

F

6. We have considered submissions on behalf of the parties. Theoriginal claimant was travelling with his wife and unmarried daughterwhen their vehicle was hit by a lorry driven rashly and negligently on02.05.1999. The claimant was taken to the Government Hospital,Trivandrum but the severity of the injuries required him to be shifted toGthe Apollo Hospital, Chennai the next day for professionalizedmanagement where he remained under treatment till 24.11.1999. Hesuffered spinal shock, with cervical cord injury and quadriplegia withrespiratory failure. He was resuscitated and put on ventilator supportfor skull traction. His right ankle needed surgery. He required furthertreatment for anterior decompression, disc excision and bone grafting.H

THE ORIENTAL INSURANCE COMPANY LIMITED v. KAHLON @ JASMAILSINGH KAHLON (DECEASED) THROUGH HIS LEGAL REPRESENTATIVENARINDER KAHLON GOSAKAN AND ANOTHER [NAVIN SINHA, J.]

His physical activity was by way of wheel chair mobilisation. The disabilitycertificate dated 16.06.2000 issued to him by the Government HeadquarterHospital, Cuddalore opined 100 per cent permanent motor systemdisability with operative scar on the right-side neck, right ankle, healedscar on the left side forehead frontal region and parietal region and thathe was unable to lift all four limbs which were vested with sensory losspresent in certain places classified as quadriplegic orthopedically.

7. The claimant was a law graduate with a Diploma in PersonalManagement and Labour Welfare from the Punjab University. Becauseof the injuries, he found it difficult and inconvenient to continue with hisjob as Deputy General Manager and resigned pre-maturely on 30.09.2001at the age of 53 years before his scheduled superannuation on 30.04.2006.Unable to pursue his life and career with the burden of treatment andfamily expenses in the changed circumstances in Cuddalore, he movedthis Court in T.P.(C) No. 1043 of 2003 for transfer of the claim casefiled by him in Cuddalore in the year 2000 which was allowed on25.02.2004. The proceedings were shifted to Gurdaspur in Punjab.

8. The Tribunal in a very cursory and cryptic manner awarded acompensation of Rs.1,00,000/- along with 9% interest. The claimantthen moved the High Court which has enhanced the compensation toRs.37,81,234/- by taking into account his annual salary with futureprospect applying the multiplier of 11 including pain and suffering,attendant’s charges.

9. The Act is a beneficial and welfare legislation. Section 166(1)(a) of the Act provides for a statutory claim for compensation arising outof an accident by the person who has sustained the injury. Under Clause(b), compensation is payable to the owner of the property. In case ofdeath, the legal representatives of the deceased can pursue the claim.Property, under the Act, will have a much wider connotation than theconventional definition. If the legal heirs can pursue claims in case ofdeath, we see no reason why the legal representatives cannot pursueclaims for loss of property akin to estate of the injured if he is deceasedsubsequently for reasons other than attributable to the accident or injuriesunder Clause 1(c) of Section 166. Such a claim would be completelydistinct from personal injuries to the claimant and which may not be thecause of death. Such claims of personal injuries would undoubtedly abatewith the death of the injured. What would the loss of estate mean andwhat items would be covered by it are issues which has to engage our AB

C

D

E

F

G

H

Aattention. The appellant has a statutory obligation to pay compensation inmotor accident claim cases. This obligation cannot be evaded behindthe defence that it was available only for personal injuries and abates onhis death irrespective of the loss caused to the estate of the deceasedbecause of the injuries.

B10. In Umed Chand (supra), giving a broad liberal interpretationto the provisions of the Act so that legal representatives do not sufferinjustice, it was observed that the claim for personal injuries will notsurvive on death of the injured unrelated to the accident but the legalrepresentatives could pursue the claim for enhancement of the claimfor loss of the estate which would include expenditure on medicalCexpenses, travelling, attendant, diet, doctor’s fee and reasonable monthlyannual accretion to the estate for a certain period. It is trite that theincome which a person derives compositely forms part of the expenditureon himself, his family and the savings go to the estate. The unforeseenexpenses as aforesaid naturally have to be met from the estate causingDpecuniary loss to the estate.

11. In Maimuna Begum (supra) the defence under Section 306of the Indian Succession Act, 1925 on the old English Common Lawmaxim “actio personalis moritur cum persona” was rejected opiningthat it would be unjust to non-suit the heirs on that ground.

E

12. In Venkatesan (supra), the injured claimant preferred an appealdissatisfied, but was deceased during the pendency of the appeal.Compensation came to be awarded under the Act for loss of estatekeeping in mind the nature of the injuries, the treatment, the expenditureincurred and loss of income.F13. In

13. In Surpal Singh (supra), Justice K.S. Radhakrishnan, C.J.(as he then was), observed that the Act was a social welfare legislationproviding for compensation by award to people who sustain bodily injuriesor get killed. The grant of compensation had to be expeditious asprocedural technicalities could not be allowed to defeat the just purposeGof the act. The Courts in construing social welfare legislations had toadopt a beneficial rule of construction which fulfils the policy of thelegislation favorable to those in whose interest the Act has been passed.Judicial discipline demanded that the words of a remedial statutes beconstrued so far as they reasonably admit so as to secure that reliefcontemplated by the statute and it shall not be denied to the class intendedH

THE ORIENTAL INSURANCE COMPANY LIMITED v. KAHLON @ JASMAILSINGH KAHLON (DECEASED) THROUGH HIS LEGAL REPRESENTATIVENARINDER KAHLON GOSAKAN AND ANOTHER [NAVIN SINHA, J.]

to be relieved. Rejecting the maxim of “actio personalis moritur cumpersona” on the premise that it was an injury done to the person andthe claim abated with his demise it was observed:

“11. The question as to whether injury was personal or otherwiseis of no significance so far as the wrong doer is concerned and heis obliged to make good the loss sustained by the injured. Legalheirs and legal representatives would have also sufferedconsiderable mental pain and agony due to the accident caused totheir kith and kin. Possibly they might have looked after their dearones in different circumstances, which cannot be measurable inmonetary terms. We are therefore in full agreement with the viewexpressed by the learned Single Judge of this Court in GujaratState Road Transport Corporation’s case (supra) that even afterdeath of the injured, the claim petition does not abate and right tosue survives to his heirs and legal representatives.”

14. This view has subsequently been followed in a decision authoredby brother Justice M.R. Shah J., (as he then was) in MadhubenMaheshbhai Patel vs. Joseph Francis Mewan and Others, 2015 (2)GLH 499, holding as follows:

“12….Considering the aforesaid decision of the Division Benchof this Court in the case of Surpal Singh Ladhubha Gohil (supra);decisions of the learned Single Judge of this Court in the case ofJenabai Widow of Abdul Karim Musa (supra) and in the case ofAmrishkumar Vinodbhai (supra); and aforesaid two decisions ofthe learned Single Judge of the Rajasthan High Court, we are ofthe opinion that maxim “actio personalis moritur cum persona” onwhich Section 306 of the Indian Evidence Act (sic IndianSuccession Act) is based cannot have an applicability in all actionseven in an case of personal injuries where damages flows fromthe head or under the head of loss to the estate. Therefore, evenafter the death of the injured claimant, claim petition does not abateand right to sue survive to his heirs and legal representatives in sofar as loss to the estate is concerned, which would include personalexpenses incurred on the treatment and other claim related to lossto the estate. Under the circumstances, the issue referred to theDivision Bench is answered accordingly. Consequently, it is heldthat no error has been committed by the learned Tribunal inpermitting the heirs to be brought on record of the claim petition A

B

D

E

F

G

H

Aand permitting the heirs of the injured claimant who diedsubsequently to proceed further with the claim petition. However,the claim petition and even appeal for enhancement would beconfine to the claim for the loss to the estate as observedhereinabove.”B15. Similar view has been taken by the Punjab & Haryana HighCourt in Joti Ram vs. Chamanlal, AIR 1985 P&H 2 and the MadrasHigh Court in Thailammai vs. A.V. Mallayya Pillai, 1991 ACJ 185 (Mad).

16. The view taken in Kanamma (supra) and Uttam Kumar(supra) that the claim would abate is based on a narrow interpretation ofCthe Act which does not commend to us. The reasoning of the GujaratHigh Court is more in consonance with aim, purpose and spirit of theAct and furthers its real intent and purpose which we therefore approve.

17. The injuries suffered by the deceased in the accident requiredprolonged hospitalization for six months. The extent of disability sufferedDwas assessed on 16.06.2000 as 100%. The extent of disability, pursuantto physiotherapy was reassessed as 75% on 08.08.2002. In theinterregnum, the injured resigned his job on 30.09.2001 at the age of 53years as he found movement difficult and inconvenient without anattendant as distinct from complete immobility. The injured was possessingprofessional qualifications in labour laws and Industrial relations alongEwith a Diploma in Personnel Management. He may have had to suffersome handicap in also practicing before the labour court, but cannot beheld to have suffered 100% physical disability as his capacity for renderingadvisory and other work coupled with movement on a wheel chair withthe aid of an attendant could still facilitate a reduced earning capacity. ItFcannot be held that the injured was completely left with no source oflivelihood except to deplete his estate. In assessing, what has beendescribed as a ‘Just Compensation’ under the Act, all factors includingpossibilities have to be kept in mind.

18. The Tribunal, on technicalities rejected his claim for salary,Gmedical expenses and percentage of disability and granted a measlycompensation of Rupees one lakh only by a cryptic order. We are,therefore, of the opinion that while the claim for personal injuries maynot have survived after the death of the injured unrelated to the accidentor injuries, during the pendency of the appeal, but the claims for loss ofestate caused was available to and could be pursued by the legalHrepresentatives of the deceased in the appeal.

THE ORIENTAL INSURANCE COMPANY LIMITED v. KAHLON @ JASMAILSINGH KAHLON (DECEASED) THROUGH HIS LEGAL REPRESENTATIVENARINDER KAHLON GOSAKAN AND ANOTHER [NAVIN SINHA, J.]

19. In Parminder Singh (supra) compensation on the basis ofcomplete loss of income, the percentage of disability, future prospectswere granted applying the relevant multiplier. Again, in Kajal (supra)the injured was assessed as 100 per cent disabled, considering all ofwhich compensation was awarded on the notional future prospects alongwith relevant multiplier. The loss of income to the injured in the facts ofthe present case has to be assessed at 75%. In view of Raj Kumar(supra) there shall be no deduction towards personal expenses.

20. We see no reason to deviate from the consistent judicial viewtaken by more than one High Court that loss of estate would includeexpenditure on medicines, treatment, diet, attendant, Doctor’s fee, etc.including income and future prospects which would have causedreasonable accretion to the estate but for the sudden expenditure whichhad to be met from and depleted the estate of the injured, subsequentlydeceased.

21. However, the compensation under the head pain and sufferingbeing personal injuries is held to be unsustainable and is disallowed.The High Court has not awarded anything towards medical expensesdespite hospitalisation for six months being an admitted fact. We thereforeaward a sum of Rs.1,00,000/- towards medical expenses. Hence, thereassessed total compensation would be Rs.28,42,175/-, calculatedhereunder:

A

B

C

D

E

F

G

H

480SUPREME COURT REPORTS

A22. The appellant is therefore directed to pay to respondent no.1within a period of four weeks Rs.28,42,175/- along with interest @ 9%p.a. from the date of filing of the claim petition, till its realisation.

23. The appeal is partly allowed to the extent indicated above.

B

Nidhi Jain

Appeal partly allowed.

C

D

E

F

G

H