Madhya Pradesh High Court
Shantabai Dube And Anr. vs Kanhaiyalal And Anr. on 17 August, 1993
Equivalent citations: I(1994)ACC462, 1995ACJ706
JUDGMENT R.D. Shukla, J.
1. The revision is directed against the judgment and order dated 25.8.1993 of the VIIth Addl. District Judge, Indore, passed in C.S. No. 2-B of 1989, whereby the applicants' application under Order 22, Rule 1 read with rule 3, Civil Procedure Code, has been rejected on the principle of actio personalis moritur cum persona.
2. The brief history of the case is that the original plaintiff, Mohanlal, filed a suit with the assertion that the defendant (non-applicant there) caused injuries to him on 29.4.1981. He, therefore, sustained fracture in his hand. He had to undergo the treatment and suffered pain and agony and was under plaster for a few months. He, therefore, claimed Rs. 99,000/- as the damages.
3. The defendants-non-applicants denied the plaint allegations. The case was pending in the court for trial.
4. During the pendency of the case Mohanlal died and, thereafter, the present applicant, i.e., Shantabai w/o Mohanlal and Kamalkumar s/o Mohanlal filed an application for substitution under Order 22, Rules 1 and 3 of Code of Civil Procedure.
5. After hearing the parties the learned trial Judge dismissed the application for substitution and consequently dismissed the suit on the principle of actio personalis moritur cum persona. Hence this revision.
6. The contention of the learned counsel for the applicant is that the suit so far as it relates to general damages, pain, agony and suffering shall abate and suit for that will not survive but suit for the recovery of the amount spent for the treatment of Mohanlal will be maintainable as if recovered that will enrich the estate of the applicant here.
7. As against it, learned counsel for the non-applicants has submitted that since right to sue about the personal injury shall not survive and, therefore, merely because some money has been spent for the treatment the right to sue for the recovery of the same will also not survive and as such, the suit has rightly been dismissed without permitting the substitution of the L.Rs. of the (original plaintiff).
8. After coming into force of Legal Representatives' Suits Act (Act No. XII of 1855) the maxim actio personalis moritur cum persona was made applicable in India as per proviso of that law. The right to sue is not heritable and, therefore, the suit for personal injuries as personal wrong will not be maintainable by the legal representatives after the death of the plaintiff.
9. Learned counsel for the applicants referred to a case in Girijanandini Devi v. Bijendra Narain Choudhary AIR 1967 SC 1124 and submitted that suit in this case would be maintainable by L.Rs. That was a case for rendition of accounts and, therefore, it was held that the claim for rendition of accounts is not personal claim and, therefore, it shall not extinguish because the party who is called upon to account dies, the death of person does not affect liability of his estate. Even otherwise, as per the allegations since the defendant was bound to render account or pay the money if found due, there was benefit to the estate and the estate was enriched to that extent. As such it was not a case of personal injury or personal wrong and the law enunciated therein does not apply to the instant case.
10. Learned counsel, thereafter, referred to a case in Official Liquidator, Supreme Bank Ltd. v. PA. Tendolkar by L.Rs. (1973) 1 SCC 602. The observations in para 32 of the case referred above are relevant for this case.
Whatever view one may take of the principle of justice, it was clear that the principle of actio personalis moritur cum persona would not be applicable to actions based on contract or where a tortfeasor's estate had benefited from a wrong done.
11. This is not the case here. Merely because some money has been spent in the treatment of the injured it cannot be said that the defendants' estate has been in any way benefited thereby. There may be loss to the injured (plaintiff) but there was no benefit to the estate of defendants and, therefore, this case also does not help the applicants.
12. The following observations quoted at page 86 of the Law of Torts, 21st Edn., 1987 (Justice G.P. Singh) are relevant in the case: "The rule actio personalis cum persona is not interfered with merely because the person injured incurred in his lifetime some expenditure of money in consequence of the personal injury."
This is exactly the case here that the injured spent some money on his treatment during his lifetime.
13. In the opinion of this court, therefore, the suit for recovery of the money spent for treatment of the injured will also not survive as that will also be a right to sue alone which is not heritable.
14. In view of the discussions above, the revision petition fails and is hereby dismissed. In the facts and circumstances of the case, the parties shall bear their own costs.