1. Introduction
Sometimes it happens that due to other’s wrongful act one dies and thus leaving behind him—his estate and his relatives. So, it is a loss for both—
his estate and his relatives. The question arises here that whether action could be taken against the defendant, for the loss suffered by the estate of the deceased and his family/relatives.
Under following headings we may deal with this topic:
(a) Survival of actions, (b) Loss to dependents
The common law maxim is actio personalis moritur cum persona i.e., a personal right of action dies with the person. But, this rule was abolished by the Law Reform (Miscellaneous Provisions) Act, 1934 in England which now governs the law relating to survival of rights of action. In our country, this rule was abolished by the Indian Succession Act, 1925. Section 360 of the Indian Succession Act says—
“All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries causing the death of the party; and except also cases; where after the death of the party; the relief sought could not be enjoyed or granting it would be nugatory.”
Under this section i.e., 360 of the Indian Succession Act, 1925, the maxim “actio personalis moritur cum persona” still applies where the injury is in relation to his defamation, assault, personal injuries, or where the relief sought could not be enjoyed or granting it would be nugatory. Actions for the above injuries do not survive and die with the death of the party.
As far as personal injuries is concerned, the opinion is divided over the matter that personal injuries include only physical injuries or other injuries also like malicious prosecution. These differences were sorted out by the Supreme Court in the case M. Veerappa v. Evelyn Sequeira, MANU/SC/0259/1988 : AIR 1988 SC 506: 1989 (1) BLJR 11: JT 1988 (1) SC 120: 1988 (1) SCALE 107: MANU/SC/0259/1988 : (1988) 1 SCC 556: (1988) 2 SCR 606: (1988) (1) UJ 720 (SC). The Supreme Court held that the expression “personal injuries” is to be read ejusdem generis with the words ‘defamation’ and ‘assault’ and not with assault alone. So judgment of Supreme Court established the view that the expression ‘personal injuries’ does not mean only injuries to the body but all injuries to a person other than those which cause death.
In the case Zargham Abbas v. Hari Chand, MANU/UP/0219/1980 : AIR 1980 All 259, a suit of defamation was filed on the basis of malicious prosecution against the father and his son. The father died at the appellate stage. The Allahabad High Court held that the cause of action cannot be maintained against the father who died but it can be against his legal heir. It was further observed that death of father did not affect the maintainability of the appeals from the decree.
Under the Indian Succession Act, on the death of a person, his successors are free to take an action in respect of those rights which were vested in the deceased prior to his death except where the action was for defamation, assault, personal injuries causing the death or where after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.
Besides the maxim ‘actio personalis moritur cum persona’ there was also a rule in English common law that “the death of a human being could not be complained of as an injury” in civil court. It may be inferred from the above that a person might have a claim for the death of a cow or a dog but under common law, he could not maintain a civil action for the death of a human being.
This was a harsh reality till the Fatal Accidents Act, 1846 was came into being in England known as Lord Campbell’s Act. Later on, it was repealed and replaced by the Fatal Accidents Act, 1976.
In our country, in the year 1855, the Fatal Accident Act was passed based on the English Fatal Accidents Act. Section 1 of this Act says—
“Whenever the death of a person shall be caused by wrongful act, neglect or default and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.
Every such action or suit shall be for the benefit of the wife, husband parent and child, if any, or the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased and in every such action the Court may give damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the cost not recovered from the defendant, shall be divided amongst the before-mentioned parties or any of them, in such shares as the Court by its judgment or decree shall direct.”
Section 1 of the Fatal Accidents Act, 1855, enables pecuniary benefit to the husband, wife, parent and child and to no body else. In the case Municipal Corporation of Delhi v. Subhagwanti, MANU/SC/0010/1966 : AIR 1966 SC 1750:
(1960) 3 SCR 649, three persons died when a clock tower, 80-year old fell due to negligence of Municipal Corporation (ill-maintenance). The dependants of deceased filed the petition for damages. The Court calculated the damages for a period of 15 years to be given to legal representatives.
The question arises from such cases is whether a pecuniary loss suffered by the legal representatives i.e., dependants by reason of victim’s death could be adjusted against the pecuniary advantage from whatever source comes to him. The same was considered by the Supreme Court in the case of Gobald Motor Service Ltd. v. Veluswami, MANU/SC/0016/1961 : AIR 1962 SC 1: (1962) 1 SCR 929.
The facts were that Gobald Motor was plying buses on Dharapuram and Palni route in the State of Madras. On 20th September, 1947 one of the buses met with an accident due to negligence of its driver. Some of the passengers got injured and Rajaratnam was one of them but he succumbed to his injuries on 23rd September, 1947 and died. His father, his widow and his five sons filed a suit for compensation under section 1 of the Fatal Accidents Act, 1855.
The lower court held defendants liable for the negligence of their servant i.e., driver and awarded damages as—
1. Father (First plaintiff) – Rs. 3,600 under section 1 of the Act.
2. Plaintiffs (2 to 7) i.e., widow and five sons – Rs. 25,200 under
section 1 of the Act.
3. Plaintiffs (2 to 7), Rs. 5,000 under section 2 of the Act.
The Madras High Court modified the above compensation as awarded by the lower court by reducing the amount Rs. 3,600 to 1,000 for the first plaintiff. On appeal, the Supreme Court stated—
“The general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit by reason of the death and on the other any pecuniary advantage which from whatever source comes to them that is, the balance of loss and gain to a dependant by the death must be ascertained.”
Another important question was that whether the award of Rs. 5,000 under section 2 of the Act to plaintiffs from 2 to 7 should go into reduction of Rs. 25,200 awarded under section 1 of the Act to the same persons on the ground that it would be duplication of damages. The Supreme Court while referring the section 2 of the Act stated that the cause of action under
section 1 and that under section 2 are different. Under section 1 damages are recoverable for the benefit of the persons mentioned above while compensation under section 2 goes to the benefit of estate. Persons entitled to benefit under section 1 may be different from those claiming under section 2. The claimants, whether the same or different, would be entitled to recover compensation separately under both the heads. The Supreme Court further observed—
“The right of action under sections 1 and 2 of the Act are quite distinct and independent. If a person taking benefit under both the sections is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under section 1 of the Act, that portion shall be excluded in giving compensation under section 2 and vice versa.”
The Supreme Court then held that compensation awarded by the lower court as Rs. 25,200 for plaintiffs (2 to 7) by taking into consideration the reasonable provision the deceased, if alive, would have made for them. Under section 2, the Court awarded damages for the loss to the estate, a sum of Rs. 5,000. This sum is for the mental agony, suffering and loss of expectation of life. There was, therefore, no duplication in awarding damages under both the heads. The Supreme Court upheld the judgment of the lower court.
4. Deductions
In the case Davies v. Powell D.A. Collieries Ltd., 1942 AC 601 (HL), it was observed that the damages to be awarded to the dependants under the Fatal Accident Act must take into account any pecuniary benefit accruing to the dependants in consequence of the death of the deceased. It was held in the case of Gobald Motor Service Ltd. v. R.M.A. Veluswami, MANU/SC/0016/1961 : AIR 1962 SC 1:
(1962) 1 SCR 929, that the pecuniary loss can be ascertained only by balancing on the one hand, the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, so, the balance should be maintained between the loss and gain to a dependant by the death while deciding the damages.
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