|
| |
| Home >> General Public User >> Law Of Torts>> India>>Death in Relation to Torts |
Death in Relation to Torts |
According to the English Law a personal cause of action comes to an end when the person dies. The principle is based on the maxim, “actio personalis moritur cum persona”. According to the Supreme Court of India, this maxim was an invention of English common lawyers. The Supreme Court in the case of P.A. Tendolkar observed, “It seemed to have resulted from the strong quasi-criminal character of the action for trespass. Just like a prosecution for criminal offence, the action for trespass, which was the parent of much of our modern law of tort, was held, by applying this maxim, to be incapable of surviving the death of the wrongdoer, and, in some cases, even of the party injured. The maxim, with its extension, was criticised by Winfield and found to be pregnant with a good deal of more mischief than was ever born of it”.( AIR 1973 SC 1104) According to the Supreme Court, this maxim is not applicable to actions based on contract or in cases for eviction and cases involving industrial disputes.
The common law also prescribes that no one can recover damages for the death of another and this principle is based on the rule in Baker v. Bolton, which states that in a civil court, the death of a person could not be complained of as an actionable injury. The rule in Baker v. Bolton is not applicable where the cause of action is based on breach of a contract.
The Indian Succession Act, 1925 has stated that 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. (Section 306)
Damages awarded to a dependant of a deceased is calculated by taking into account any pecuniary benefit accruing to that dependant in consequence of the death of the deceased. The Supreme Court of India has observed, “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 and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependant by the death, must be ascertained.”
Gobald Motor Service Ltd, Allahabad v. R.M. A. Veluswami
(AIR 1962 SC 1)
|
|
|
