- (1.) This appeal is directed against the judgment and award dated 10-12-1984 passed by the Motor Accident claims Tribunal, Jodhpur.
(2.) The brief facts giving rise to this appeal are that an accident took place on 1-3-1982 at 6.15 P.M. with the truck bearing No. RJR 7224 which was driven in a rash and negligent manner and it struck against one Om Prakash. As a result of this accident Om Prakash received the following injuries: (1) Bruise 1.5 cm x 1.0 cm on the Rt. upper lid lot half and adjacent Eye brow. (2) Lacerated wound 6.2 cm. x 6.2 cm. musseles deep on the lat aspect of Rt. knee joint. (3) An abrasion 2.0 cm. x 1.0 cm. ent lat aspect of Rt. leg at its middle. He filed a claim petition before the Tribunal claiming compensation for the aforesaid injuries to the tune of Rs. 75,000/-. While the claim petition was pending, Om Prakash died as a result of heart attack on 19-1-1984. Therefore, an application was made by the legal representatives of deceased Om Prakash before the learned Tribunal that they may be substituted as claimants in the claim petition. That application was rejected by the order of the learned Tribunal dated 10-12-1984 in to to and it was held that since the action was Actio personalis Mortiur Cum persona therefore, the legal representatives of the deceased cannot be substituted as the action for a personal (bodily) injury died with the death of the person. Aggrieved against this, the present appeal has been filed by the legal representatives of the deceased Om Prakash.
(3.) Mr. Parihar, learned Counsel for the appellant submitted that it is true that the English doctrine Actio personalis Mortiur Cum persona is applicable in the present case by virtue of Section 306 of the Indian Succession Act, but the action so far as it relates to the loss caused to the estate of the deceased will survive and that action will not die with the death of the deceased. In support of his aforesaid contention, learned Counsel has invited my attention to Sampati Lal v. Hari Singh,1985 RajLW 220. In that connection, it was observed as under: The maxim Actio personalis Mortiur Cum persona relates only to the personal or bodily injuries and not to the loss caused to the estate of the deceased by the tort feasor. In this way, this maxim stands considerably abrogated or modified by the provisions of Section 306 of the Indian Succession Act. Sections 306 clearly lays down that all demands whatsoever and all rights to prosecute or defend in an action or special proceeding existing in favour of or against a person at the time of his death survive except cause of action for defamation etc., which come to an end with the death of the injured. The loss to the estate is, thus, not covered by the exception contained in Section 306 of the Indian Succession Act.;