S.S.VYAS,J. - (1.) THIS appeal under Section 110 -D of the Motor Vehicles Act, 1939 (for brevity 'the Act' hereinafter) is directed against an award of the Claims Tribunal, Udaipur dated March 5, 1975, by which the appellants were denied the right to prosecute and proceed with the application for claim.
(2.) RECAPITULATED briefly, the relevant facts are as under. Khemraj, who passed away during the trial, presented an application under Section 110 -A of the Act before the Claims Tribunal on September 9, 1972 against the respondents claiming a sum of Rs. 70,000/ - as compensation. The case set -up by him was that at about 6.15 P.M. on March 20, 1972, he was going from his residence to his shop in the city of Udaipur. When he happened to be near the road -crossing of Bapu Bazar, bus RJL 4759 came from behind and knocked him down. As a result, he fell down and the bus passed over his feet. It resulted in the complete crushing of his both feet. He received multiple injuries. Respondent Hari Singh was driving the bus at that time. The bus belonged to M/s Laxmi Narain Mohan Lal. It was alleged that the accident had taken place due to the rash and negligent driving of the bus by its driver. The applicant was 68 years of age at that time and was earning nearly Rs. 700/ - per month by running a stationery mart. Due to the injuries sustained by him in this accident, he incurred disability which resulted in reducing his earning capacity. The estimate of loss of income was reckoned at Rs. 300/ - per month. In the normal course he was expected to remain alive upto the age of eighty years. The break up of the compensation was (a) Rs. 43,200/ - as the loss of income, at the rate of Rs. 300/ - per month for twelve years. (b) Rs. 6,800/ - which he had to incur in his treatment and (c) Rs. 20,000/ - on account of mental and physical pain and agony. The claim was opposed by the driver and the owner of the bus as well as the insurance company with which the vehicle was insured. The accident was admitted by the driver of and the owner of the bus, but it was denied that it took place with due to the rash and negligent driving of the bus by its driver. It was submitted that the application struck with the rear portion of the bus and thereby sustained injuried. The quantum of compensation was also challenged. The insurance company, in its statement of defence, joined the other non -applicants on all the grounds. Necessary issue were raised no March 2, 1974. On April 16, 1974, the applicant Khemraj passed away and the appellants presented an application to be brought on record and to be substituted in his place. They were consquently substituted in place of the deceased applicant Khemraj. However, an objection was taken by the driver and the owner of the bus that the application for claim could not preceed further and the legal representatives were not entitled to prosecute it on the ground that the cause of action did not survive after the death of Khem Raj. It was a case of compensation respect of personal injuries and as such the cause of action disappeared on his death and did not pass on to his legal representatives. The objection found favour with the Tribunal. The application for claim was consequently dismissed. Aggrieved against the said award of dismissal, the legal representatives of the deceased Khemraj have come up in appeal.
(3.) BEFORE proceeding further, it may be mentioned that the application for compenation was dismissed by the Tribunal by applying the provisions of Section 306 of the Indian Succession Act and the doctrine of 'Actio Personalis Mortiur Cum Persona.';