The common law maxim i.e actio personalis moritur cum persona expression means that ‘a personal right of action dies with the person’. Modification in this maxim had been done by the statutes. “Thus, the Fatal Accidents Act,1855, Section 1A, provides for action by the representative of the deceased for damages for the benefit of the parent, husband, child, and wife of the deceased against the wrongdoer notwithstanding the death of the injured”. The general law found in Section 306 of the Indian Succession Act, 1925. “It provides that all rights to defend or prosecute any action for or against a person at the time of his decease, survive to and against his administrator or executor, excepting causes of action for assault, defamation or other personal injuries which do not cause death.” This only implies when the action is for damages for personal wrong, and the suit for partition is a suit for a property, the rule in question has no application to it. This maxim does not apply in actions of contract and where a benefit is received from the wrond–done. It also does not work on suits under Rent Control Acts and Industrial Disputes. Under common law, one cannot recover damages for the death of others.
Presently, the question which emerges is a scenario in which demise is the damage caused by the respondent?
In the medieval time, Actio Personalis Moritur Cum Persona was regardless of whether the death was the damage griped of, this may sound odd in the advanced generation but yet it was justifiable at the present time. Be that as it may, if a specific individual could be differentiated in charge of the people dying, at that point a lawful offense allegation sheet would be made, bringing about an official activity against the executioner. Some of the time this official activity would incorporate a remuneration to keep the perished’s relatives from taking any activities. Additionally, amid this time, the precept of deodand was set up, by which the physical protest that had caused the passing was grabbed and the estimation of the question was given to the perished relatives as remuneration.
1) Whether on the death of the injured claimant, claim petition filed by him abates or right to sue survives to his heirs and legal representatives.
2) Whether a suit for damages instituted against counsel abates on the death of the plaintiff-Determination of the question.
1. The maxim of Actio Personalis Moritur Cum Persona can be seen in the case of Gujarat State Road Transport vs Amishkumar Vinodbhai And Ors, (1994) 3 GLR 212 506
Plaintiff (Amishkumar and three others) filed an application in the tribunal in their capacity as legal heirs and representatives of Vinodbhai Mangaldas, against Defendant (Gujarat State Road Transport) seeking compensation on behalf of Vinodbhai from the defendants. Earlier Vinodbhai filed a claim petition against the defendant party for the injuries received by him after a bus owned by defendant injured him, but during the pendency of the claim, he died.
The plaintiff now seeks for compensation to be received by Vinod Bhai after two years of his death.
In this case, the plaintiff(legal heirs of Vinod Bhai)seek compensation under Section 306 of Indian Succession Act,1925 and the issue is whether the heirs are eligible to receive the compensation from the defendant after so much time of the accident without a valid proof that the death is due to earlier injuries.
Keeping all this in mind the court has to decide whether the revision petition is to be entertained or not.
Section 306 of the Indian Succession Act,1925 states that
“All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favor 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, 1860 (45 of 1860) or other personal injuries not causing the death of the party…”
This same situation was raised in D.K Cassim & Sons v. Sara Bibi, (1935)ILR 13 Ran 385. And Punjab Singh v. Ramautar Singh, (1919) 4 PLJ 676.
As per the certainties of the case, the Court found that the instance of the offended party is that the expired Vinodbhai Patel died because of the wounds endured by him in the accident a year prior. As indicated by them offended parties could have documented a claim request of for remuneration under Section 166 of the Motor Vehicles Act, 1988 after the passing of the harmed casualty. Be that as it may, since Vinod Bhai had just raised a claim appeal for the remuneration of damage before his death, the offended party is required to be expedited the record of the case as opposed to documenting separate claim request. On the off chance that, at the preliminary, they prevail with regards to demonstrating that the passing of the expired was because of the damage managed by him in the mischance, they will get the remuneration likewise and If they neglect to do as such, they will get pay for such cases as survive to the beneficiaries and legitimate agents under Section 306 of the Indian Succession Act, 1925. What is looked to be finished by the condemned arrange is to allow the offended party to be expedited record as beneficiaries and lawful agents of the expired claimant and simply that. In my view, subsequently, it can’t be said that any jurisdictional blunder is submitted by the Tribunal in allowing the adversary Nos. 1 to 4 be expedited record of M.A.C.P. No. 86 of 1988 as ideal to sue gets by to them on the passing of the first petitioner Vinodbhai Patel.
The common law maxim is actio personalis moritur cum persona – a personal right of action dies with the person. At common law, if an injury were done either to the person, for which damages only could be recovered in satisfaction, the action died with the person to whom, the wrong was done.
In Official Liquidator of Supreme Bank Ltd v. P.A. Tendolkar, the Supreme Court pointed out that the maxim was “an invention of English common lawyers” and observed: “It seemed to have resulted from the strong quasi-criminal character of the action for trespass.” In view of the above discussion, it cannot be said that the impugned order has been passed without jurisdiction or in excess of jurisdiction. No ground is made out by the petitioner for Gujarat State Road Transport … vs Amishkumar Vinodbhai And Ors. on 24 March 1994. The revision application, therefore, fails. The rule is discharged with no order as to costs.
2. The other Case is M. Veerappa vs Evelyn Sequeira & Ors, AIR1988 SC 506
The High court of Karnataka passed an order of eviction against the respondent (Mr. Sequeira) of his business premises. The respondent hired an Advocate M. Veerappa (Appellant) to file for a special leave petition in the Supreme Court. The petition came up for hearing but was “dismissed as withdrawn”. Mr. Sequeria filed filed a suit in the Court of the District Munsif against the appellant for damages and compensation on the ground of negligent in rendering professional services and had misconducted himself by filing the appeal after considerable delay and giving miss-leading information about the filing of the appeal and furthermore in withdrawing the appeal instead of canvassing for its admission. He demanded for in total of Rs 6000/-.
He passes away in pendency of the suit, now his legal representative is asking for the above compensation.
Is M.Veerappa liable to pay compensation to Mr. Sequeria representative?
Has the appellant failed in providing his duty towards his client?
Can MR. Sequeria claims damages that he incurred in filing the suit.
The appellant owes the duty towards the respondent as according to Legal Practitioners Act,1879 and the Legal Practitioners (Fees) Act, 1929 regarding the liability of counsel to pay damages to their clients for breach of duty or negligence.
Order XXII Rules 1 and 3(1) govern the matter. They read as under:
“1. The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.”
“3.(1) Where one of two or more plaintiffs die and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.”
If we take a logical approach here the monetary property of the father inherently belong to his son any loss caused to the fathers property due to the negligent actions of other parties,The appellant is liable to pay compensation and damages to the defendant as No legal practitioner who has acted or agrees to act shall, by reason only of being a legal practitioner, be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties.
The maxim of actio personalis cum moritur persona has been held inapplicable only in those cases where the injury caused to the deceased person has tangibly affected his estate or has caused in accretion to the estate of the wrongdoer vide Rustomji Dorabji v. W.H. Nurse (supra) and Ratanlal v.Baboolal (supra). A compensation of Rs 6000 was asked by the defendants.
The appellant failed to discharge it’s its but in conclusion, since we find that the question whether the suit has abated or not can be answered only after the nature of the suit is determined on the basis of the materials placed and the evidence adduced by the parties, the appeal has to be dismissed. The suit will stand restored to the file of Trial Court for disposal in accordance with the law in the, light of the guidelines given by us. Accordingly the appeal is dismissed. In the circumstances of the facts, the parties are directed to bear their respective costs on their own.
3. Klaus Mittelbachert v. East India Hotels Ltd. (1999) ACJ (287)
Lufthansa, a german airlines company flight was scheduled between Bangkok to New Delhi, during the lay-over-period at new Delhi the Co-pilot i.e Mr.Klaus Mittelbachert, the plaintiff, a German national checked in to Hotel Oberoi Intercontinental five-star hotel in New Delhi. The plaintiff visited the swimming pool equipped with diving board of the hotel In the evening but he hit his head on the bottom of the pool, He was taken out bleeding from the right ear and appeared to have paralyzed in the arms and the legs. He was taken to the nearest hospital after which escorted under medical treatment to Germany. After a year of clinical treatment, he was discharged but his condition remained unchanged. He files a suit against the East India Hotels Ltd (Defendant) seeking compensation of fifty lacs. According to the plaintiff, the accident was a trap. The diving board placed at the swimming pool suggested a proper depth of water into which a swimmer could dive. The hotel owed a duty of care and safety towards its in-house guest which it failed in providing. The defendants are guilty of negligence and are, therefore, liable to compensate the plaintiff for the same. While fighting for the case, Mr. Mittelbachet passes away due to acute cardiac arrest, he had incurred huge medical expenses due to treatment. In the end, compensation was given to the dependents of the deceased.
Should the hotel be made liable to pay compensation to Mr. Klaus?
Does the plaintiff has right to seek for compensation?
Did the hotel provide a duty of care to its guests?
For negligence to be proved 3 conditions must be fulfilled
1) that the defendant owed the plaintiff a duty of care;
2) that the defendant breached that duty of care; and
3) personal injury or property damage suffered by the plaintiff as a result of that breach (causation).
In this case, the hotel owed a duty of care to the plaintiff therefore the dependants of the plaintiff are entitled to receive damages under section 306 of the succession act. In this case the maxim “actio personalis moritur cum persona” is not applicable because there has been a breach of contract between the defendant and the plaintiff. There have also been statements of more than thirteen people which clearly shows that the hotel was solely liable, thus the dependents received the sum.
The hotel (defendant) failed to provide it’s duty, the very existence of a swimming pool filled with water and a diving board in the hotel implies an obligation on the part of the hotel to keep it free from any kind of defect that may cause an injury to any persons using the pool. As the hotel failed to discharge the duty of care the plaintiff incurred loss which ultimately led death thus, the tortious liability of the hotel survived in this case.
The Research paper was done to find out the answer to the questions which comes to our mind when the maxim “actio personalis moritur cum persona” arises.
Through the above-taken cases, it is clear that what are the ingredients necessary in the case to prove the maxim.
From the 1 case, we saw that what is section 306, how it is implemented and the claim petition was not in favour of the representatives.
From case 2 we noticed that the suit is valid for compensation under the laws mentioned.
From case 3 we see how courts deal with cases of Negligent and how the legal practitioner is liable to his client
Symbiosis Law School, NOIDA