Report No. 178

9. Right of a person injured in an accident to sue for damages to survive to his legal representatives in the case the injured person dies thereafter on account of a cause not relatable to the acciden.-

Amendment proposed to Section 306 Indian Succession Act, 1925, Section 110A of Motor Vehicles Act, 1939 and Section 166 of Motor Vehicles Act, 1988.- In the case of a person injured in an accident, the law of torts provides a remedy in case negligence of the tort-feasor is established. Apart from that, the Motor Vehicles Act, 1939 and the Motor Vehicles Act, 1988 contain different statutory remedies for obtaining damages.

Under the 1988 Act, section 140 refers to damages payable even if no fault (or negligence) is proved and this is in addition to damages that could be awarded on the basis of negligence of the tort-feasor under Section 141. Section 163A was introduced in 1994, and it also permits damages on no fault basis to be computed in accordance with a structural formula, and this will be in substitution of the right to seek damages, as recently held by the Supreme Court.(K.Nandakumar V. Managing Director, Thanthal Periyar Transport Corporation (1996) 2 SCC 736)

In all the above situations, whether the right to claim compensation is conferred by the law of torts or by the statute, question arises whether upon the demise of the injured person on a date subsequent to the accident; his legal representatives can initiate or continue an action for compensation.

On the basis of the maxim 'actio personalis moritur cum persona', several High Courts have taken the view that the right of the injured person to seek damages is personal to him and the claim, therefore, cannot be 61 initiated or continued by his legal representatives, after the death of the injured person.

A Full Bench of the Karnataka High Court in its judgment in Kannamma v. Dy. General Manager ILR 1990 Karn. 4300 (FB) has held so and, in fact, 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 a recent judgment in Baburao Sataba Manabutaker V. Doreswamy (MFA 4072/1998 dated 4.9.2001), a learned Single Judge of the Karnataka High Court while dismissing a claim under Section 166 of the Motor Vehicles Act, 1988 lamented the delay in amending the law in this behalf and pointed out that the delay is resulting in grave injustice. While recommending legislation, a copy of the judgment has been forwarded to the Law Commission.

The learned Judge has pointed out that the Kerala legislature has passed the Kerala Torts (Miscellaneous provisions) Act, 1976 to rectify the position. A reading of the Kerala Act, 1976, however, shows that it is based entirely upon the provisions of the English Act, namely, the Law Reforms (Miscellaneous Provisions) Act, 1934 with some additional provisions and it covers actions for damages in case of all torts (except one or two) and states that the cause of action to seek damages shall survive to the legal representatives of the victim of the tort.

The Commission has considered whether a law on the model of the Kerala Torts (Miscellaneous Provisions) Act, 1976 to cover all cases of torts 62 is to be enacted or whether simple amendments to Section 306 of the Indian Succession Act, 1925 and the Motor Vehicles Act, 1939 (in respect of which some claims may still be pending in courts and which could abate upon the death of the injured person) and the Motor Vehicles Act, 1988, will suffice.

As stated above, the Kerala Act of 1976 applies to various torts and is based on the English Act of 1934. We find that subsequently further amendments in this behalf have been made in England by the Law Reform (Miscellaneous Provisions) Act, 1970 and the Administration of Justice Act, 1982. Some of these amendments have been made to get over or clarify judgments of the English courts.

The Commission is of the view that a comprehensive study of the law relating to abatement of right to compensation in the case of all torts can be taken up separately and that having regard to the urgency in remedying injustice in respect of claims under the Motor Vehicles Acts, some simple amendments can be proposed in Section 306 of the Indian Succession Act, 1925 and in the Motor Vehicles Act, 1939 (in respect of pending claims) and the Motor Vehicles Act, 1988, immediately.

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 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 today's 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 today's 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 proceedings 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 death of the party."

There is an illustration below Section 306 and it reads as follows:

Illustration (i): A collusion takes place on a railway in consequence of some negligent or default of an official, and a passenger is severely 64 hurt, but not so as to cause death. He afterwards dies without having brought any action. The cause of action does not survive."

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) illustration (i) shall be omitted

(B) 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 mad.-

(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 65

(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:

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 Claim's 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.

(C) 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 67 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 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."

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