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Updated: Feb 20, 2022

Written BY - Jinal Prajapat



Tort is a civil wrong that occurs when someone unfairly causes another person to suffer injury or harm. Tort entails legal liability for the person who commits the tort, known as the tortfeasor. Damages could be in the form of trespass, defamation, financial damages, nuisance, and other types of damage may be caused. However, the tortfeasor's liability to pay compensation or damages can be removed if the tortfeasor passes away.

The common law maxim dealing with the effect of death on the cause of action of a pending case is “actio personalis moritur cum persona” (a personal right of action dies with the person). In other words, if a suit is brought against anyone and either the plaintiff or the defendant dies while the case is pending, the case cannot be proceeded with.

However, the precise figure when this maxim came into being and when it became influential is still unknown and mystical. Many judges, on the other hand, were indifferent to it because it made little sense to them as it was not founded on the principle of justice. The Supreme Court in Official Liquidator of Supreme Bank Ltd. vs P.A. Tendolkar [1] observed that the maxim was “an invention of English common lawyers”.


1855 saw the first legislation related to this maxim in Legal Representatives’ Suits Act. The legislature believed that the maxim applied to India. This Act contains about, both the ‘actions against’ and ‘actions by’ the representative of a deceased person. As per the act, “an action may be maintained by the executors, administrators or representatives of a deceased person for any wrong committed in the lifetime of the deceased which has occasioned pecuniary loss to the estate of such person (and for no other wrong), committed within one year before his death.” [2]

Later came the Indian Succession Act, 1865, and the Probate and Administration Act, 1881. Sec.360 of the Indian Succession Act, 1925 has considered both these acts. The nature of the act is: “Except for causes of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries not resulting in the death of the party, all demands and rights to prosecute or defend any action or special proceeding arising in favour of or against an individual at the time of his death survive to and against his executors or administrators.”

There were numerous and different kinds of interpretations regarding the “personal injury”. This created confusion which was finally clarified by the Supreme Court M. Veerappa v. Evelyn Sequeira where the court held that “the expression ‘personal injuries’ does not mean ‘injuries to the body alone’ but all injuries to a person other than those which cause death and the expression is to be read ejusdem generis with the words ‘defamation’ and ‘assault’ and not with ‘assault’ alone.” [3]


The Supreme Court in Official Liquidator, Supreme Bank Ltd. v. P.A. Tendolkar, held that “the application of the maxim was generally confined to actions for damages for defamation, seduction, inducing spouse to remain apart from the other and adultery and that it had no application to actions based on contract or where a trespasser's estate had benefited from a wrong done.” [4]

The rule also does not apply if the request is decreed and the complainant dies while waiting for an appeal against the decree. The explanation is that the claim is incorporated into the decree, and the decree debt is part of the plaintiff's assets, which is passed to his administrators, heirs, or executives upon his death. For instance, if a suit for defamation is decreed and the plaintiff dies pending an appeal, the action will not be abated but the appeal will be abated if the action is rejected and the plaintiff dies pending an appeal from him.[5]

In the case, Klaus Mittelbachert v. The East India Hotels Lt [6] On 13 August 1972, when a German national was residing at the Hotel Oberoi in New Delhi, the plaintiff, in that case, sustained severe personal injury in the swimming pool. The plaintiff filed a suit in the High Court of Delhi on August 11, 1975, for compensation of damages incurred by personal injury. On 27 September 1985, thirteen years after receiving the injury, the complainant died during the suit pendency. He has been tetraplegic due to the injuries sustained by the plaintiff. Cardiac arrest was the immediate explanation for death, and the tetraplegic disease was based on factual facts that the court acknowledged. Consequently, the court ruled that the death was due to personal injury in the swimming pool and the case could not be abated and the lawful representatives could continue the lawsuit. Alternatively, the suit was still held to be based on a contract with the hotel management, and thus did not abate.”


· In the case of Rose vs. Ford, the House of Lords, for the very first time, the survival of cause of action was recognized by the court. A girl aged 23 years got seriously wounded due to the negligence of the defendant. Her leg had to be cut off and after a few days, she died. The defendant is liable to pay the girl's father, according to the court.

· In India also the survival of the cause of action is followed however there are some exceptions to this rule. For example, the exception to the general rule has been provided in section 306 of the Indian Succession Act. For the cases like assault, defamation, or personal injury the cause of action does not survive at the death of either party.

· Supreme Bank vs. P.A Tendolkar [7]: In this case, the Supreme Court held the legal representative of the bank's deceased director liable which was confined to the money and property left to the representatives. As a result, the matter was not abated.

· In Gobald Motor Service Ltd, Allahabad v. R.M. A. Veluswami “it was held that while awarding damages to a dependent of a deceased same is calculated by taking into account that if there was any pecuniary benefit which is accruing to the person in consequence of the death of the deceased.” [8]


Ø Although for common injuries, action can be taken in civil courts but the common-law rule says that “in civil courts, death of human being cannot be complained as injury. According to the Law Reforms Act 1934, a legal representative of a deceased person can bring action against the wrongdoer if the cause of action survives.”

Ø “Common law contains a provision that causing the death of a victim is not actionable in tort,”. For example, if A dies and his death causes a loss to someone close to him, such as his spouse, that person would not be entitled to sue for the loss caused by A's death.

Ø This rule was recognized in the case of Baker vs. Balton. In this case, on top of a stage-coach belonging to the plaintiff, the plaintiff and his wife were passengers. Because of the defendants' fault, the stagecoach was rolled over and the complainant was bruised, his wife was so seriously injured she died a month later. The appellant was held to be entitled to deprivation of his wife's society only before her death for the bruises suffered by her. However, where the cause of the action is due to a breach of a contract, the provision in the Baker case does not apply. In an action in breach of the warranty that tinned salmon supplied by the defendants was appropriate as human food to be consumed by the plaintiffs, the appellant demanded damages on the grounds that his wife had been part of the salmon and was sentenced to death, and that after her death he was in search of his hiring someone else to perform services. Such loss was considered to be recoverable.

EXCEPTIONS TO THE RULE: The above rule however has certain limitations and cannot be applied to all the cases without taking into consideration the below facts:

· Although causing death is not actionable in tort, but if it is caused by a breach of contract, the aspect of death will be included when determining the amount of compensation payable for the breach of contract.

· The Fatal Accident Act 1976 enables certain dependents of the deceased persons to claim compensation for the loss that occurred due to the death. It is provided by this Act that the person against whom the case is taken must have been entitled to bring an action at the time of his death.” This Act however is not visible in English Law. But these damages could also be recovered in English Law under the Law Reform (Miscellaneous Provisions) Act, 1934 for the benefit of the estate of the deceased. There are two distinct and separate causes of action which are maintainable if someone dies: "the dependent's claim for the financial loss incurred" and "a claim for injury, loss, or damage that the deceased would have had if he had lived, and which exists for the benefit of the estate. "There is no clause in the Indian Act for damages for mere deprivation which is now found in the English Act.


There are various laws under which the provisions are made available for claiming compensation for the death of a person. For example, Carriage by Air Act, 1961, Coal- Mining (Subsidence)Act, 1957, Carriage by Railway Act, 1972, Carriage of a passenger by Road Act, 1974, the Merchant Shipping Act, 1979and the Fatal Accident Act, 1976.

The situation in India is not that different from that in England concerning compensation proceedings on the death of a person. An action for compensation is permitted only based on various laws. For example, Workmen’s Compensation Act, 1923; Fatal Accidents Act,1855; The Indian Railways Act, 1890, The Carriage by Air Act,1972, etc.

· In the case that an individual is dead, benefits will be sought on this condition as the statute allows for such compensation.

· The 1855 Fatal Accidents Act acknowledges action in respect of such dead dependents. It allows for dependents of the deceased to be able to recover any damage for a victim sustained from the loss due to death if the person is induced to be killed by a wrongful action, fault, or negligence of the other person. The court may allow such damages as it thinks appropriate which are proportionate to the loss resulting from the death of a person. It is given under section 1-A of the Fatal Accident Act 1855.

· There is a difference between the Indian Act from the English Fatal Accident Act. Though the list of dependents entitled to compensation was copied from the English Act and it is continuing to be the same since 1855 i.e., wife, husband, parent, and child. However, the list has been enlarged in English law and it includes brother, sister, uncle, and aunt as well. Supreme Court reiterated that there have been several amendments in this act of the English version. These important amendments have to be brought to India also to make this Act more convenient and benefitting.


The maxim “actio personalis moritur cum persona” means that a personal right of action dies with the person. Under common law, the case died with the party against whom or by whom the wrong had been committed, whether harm been done either to the person or to the possessions of an individual for whom the damages can only be obtained in satisfaction.

However, there are situations when the cause of action survives and legal representatives such as the patents, child are entitled to bring an action to claim compensation for the loss suffered by them. This list of dependents has been amended several times under the English Law which benefits the dependents of the victim at large. It would be practical and sensible if these amendments are brought in India too which increases the ambit of the legal representatives.

[1] (1973) 2 SCC 602. [2] Legal Representatives’ Suits Act, 1855 (Act 12 of 1855). [3] AIR 1988 SC 506. [4] (1973) 2 SCC 602 [5] AIR 1986 SC 411. [6] AIR 1997 Del 201. [7] AIR 1973 SC 1104 [8] AIR 1952 Mad 981

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