CC.No.378/2015

ORDERS ON MAINTAINABLETY

The original complainant Ramesh filed complaint mentioning he was workman working as driver under the Opposite Party No.1 of a lorry bearing No. AP.09.U.4898 and member of Opposite Party No.2 he had ground insurance with Opposite Party No.3.

2.  He claims due to the accident died on 6.12.2002 vehicle given by complainant sustained injury resulting in amputated of leg by complainant spending Rs.4,50,000/. Though he filed claim before Commissioner for Workmen’s compensation and labour officer Mangalore and advised of his Advocate Mr. Balakrishna Sharma he insured complainant and filed case before MACT Mangalore through his

Opposite Party No.4 advocate at Mangalore in MVC No.815/2007.  After evidence the case was dismissed and was informed there is no scope for appeal thereafter present complaint is filed. The complainant claiming remedy under Janatha personal insurance policy is entitled for the reliefs of Rs.50,000/ and seeking other reliefs against even Opposite Party total 2,42,000/.

3.  In the meantime the original complainant died and is widow and his children are on record.

4.   As for supplementary claims, in the meantime counsel for Opposite Party No.4 sought for a finding on the question of maintainability as preliminary issue and filed written arguments referred and the Opposite Party No.4.

5.  The main grounds of Opposite Party No.4 are

1. Complaint barred by the time 
2. Mis joinder of the parties
3. MVC 825/2007 was dismissed on merits.

6.   On the ground that the complainant himself was driving the vehicle in rash and negligent manner and caused accident.

7.  There was no instruction by Opposite Party No.4 to file a claim separate under the alleged Janata Accident Insurance policy.

8.   Original complainant Ramesh died on 23.11.2015 and as no steps were taken and complaint was dismissed on 30.6.2016.

9.   On 15.7.2016 IA seems to have been filed under 01 R10 and S. 151 of CPC.  The claim made by original complainant is personal nature and will not survive however after death of the original complainant on the LRs were brought on record.

10.  Heard both sides on the application.  The present complainant is liable to be dismissed as not maintainable for the following.

REASONS

Without going to the other aspects, suffice mention that the original complainant is no more the claim made by him is personal in nature for injuries sustained by him in a road traffic accident.  However during pendency of present complaint after original complainant Ramesh died firstly complaint was dismissed, secondly thereafter application for impleading was filed for impleading and restoration. There cannot be any dispute that the original complaint filed was of personal nature.  Hence when the complainant died, the cause of action also died along with him.  Hence the legal representatives cannot be permitted to prosecute the claim which was personal in nature to the deceased Ramesh.

2.     Our view  is fortified on and a reported case in National Commission in Shanti Devi and others V/s Dr. Manoj Sharma and others reported in III 2012 CPJ 742 National Commission where in it is held thus

          Consumer Protection Act, 1986 section 21 (b) Death of complainant impleadment of legal representative Locus standi right to sue or maintain complaint abates the moment complainant expires if negligence has resulted in injury of personal nature, the suit or appeal will abate on death of complainant legal representatives of deceased will not be entitled to the impleaded.

3.    In the reported case it was a case of claim for medical negligence and when the original complainant died by holding that as the relief claimed was personal in nature the complaint was dismissed.

4.     Similar is the view expressed in Janak Kumari V/s Dr. Balawinder Kaur Nagapa, II (2003) CPJ 28 (NC).  Hence we are of the opinion the complaint is not at all maintainable and he devoid of merits as right to sue does not survive. 

Wherefore the following order

ORDER

                                The Complaint is dismissed as not maintainable.

Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

 (Page No.1 to 6 dictated by President to the Stenographer typed by him, revised and pronounced in the open court on this the 21^st April 2017)

             MEMBER                                         PRESIDENT

     (LAVANYA M RAI)                    (VISHWESHWARA BHAT D)

D.K. District Consumer Forum           D.K. District Consumer Forum

             Mangalore                                      Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Ramesh

Documents marked on behalf of the Complainant:

Nil

Witnesses examined on behalf of the Opposite Parties:

Nil

Documents marked on behalf of the Opposite Parties:

Nil

Dated: 21.4.2017                                      PRESIDENT