Andhra HC (Pre-Telangana)
Nurani Jamal And Others vs Naram Srinivasa Rao And Others on 5 April, 1993
Equivalent citations: I(1995)ACC344, 1994ACJ222, AIR1994AP6, 1993(1)ALT686, AIR 1994 ANDHRA PRADESH 6, (1995) 2 TAC 124, (1995) 1 ACC 344, (1993) 2 APLJ 123, (1993) 1 ANDH LT 686, (1993) 1 LS 351, (1994) 3 CURCC 288, (1994) 1 ACJ 222
ORDER
1. The petitioner being the legal representatives of one Jaheen Jamal alias Rumani (since deceased) filed this revision questioning the order made in I. A. No. 1586/ 89 filed by them under O. 22, R. 3, C.P.C. seeking to be impleaded as petitioners Nos. 2 to 4 in O.P.79/86 on the file of the III Additional Motor Accidents Claims Tribunal (III Additional District Judge) Kakinada.
2. One Jaheen Jamal alias Rumani, filed O.P.79/86 claiming compensation for the injury sustained by him in a motor accident against the respondents. While the said O.P. was pending, Jaheen Jamal alias Rumani died in another motor accident on 3-4-1987 leaving behind him petitioners Nos. 2 to 4 who are his parents and wife. As he died pending O.P., the petitioners Nos. 2 to 4 filed I.A.1586/89 for impleading them as petritioners Nos. 2 to 4 in the said original petition on the ground that Jaheen Jamal alias Rumani claimed a sum of Rs. 18,286.55 Ps. towards the amount that was spent in respect of the treatment he took for the injuries received in the accident and therefore, as the loss is to the estate of the deceased, they are entitled to continue the O.P. as his legal representatives. The respondents Nos. 1 and 2 who are the driver and the owner of the ill-fated vehicle remained ex parte. The third respondent who is the Insurance Company, resisted the said application contending that they cannot be permitted to come on record as the legal representatives of the deceased because the cause of action does not survive. The lower Court, however, accepted the contention of the third respondent and dismissed the said application. Aggrieved by the said order, this revision petition is filed.
3. Now, the question that falls for consideration in this revision is, whether the petitioners should be permitted to be brought on record as petitioners Nos. 2 to 4 in the main O.P. as the legal representatives of the deceased-Jaheen Jamal alias Rumani?
4. Order 22, Rule 3(1), C.P.C. prescribes the procedure in case of death of one of several plaintiffs or sole plaintiff.
3.(1) "Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a 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".
Therefore, it is clear that on the death of the plaintiff, if the right to sue survive, the legal representatives of the deceased-plaintiff shall be brought on record to proceed with the suit.
5. The petitioner in their application have categorically stated that the deceased Jaheen Jamal alias Rumani claimed a sum of Rs. 18,265-55 Ps. towards the amount that was spent in respect of the treatment he took for the injuries he received in the accident, as there was loss to the estate, they are entitled to come on record. In the counter-affidavit, the third respondent has simply denied the plea taken by the petitioners that there is loss of estate caused to the petitioners. There was no denial that what was claimed in the main O.P. was towards the amount that was spent in respect of the treatment of late Jaheen Jamal alias Rumani for the injuries received in the accident. Therefore, in view of the allegations in the petitioners' affidavit, it is clear that the compensation claimed by Jaheen Jamal alias Rumani was towards the treatment of the injuries. Therefore, I am of the view that the basis of the claim is, there is loss to the estate of the deceased.
6. Sri M. Lakshmana Sarma, learned counsel for the petitioner submitted that the lower Court dismissed the petition mainly on the ground that the compensation claimed by the original petitioner in the main O.P. cannot be said to be loss to the estate. Therefore, the order of the lower Court is liable to be set aside.
7. On the other hand, Sri B. V. Ramamohana Rao, learned counsel for the third respondent countered this argument and submitted that the cause of action for recovery of compensation does not survive after the death of the original petitioner since the action is purely of a personal nature. He also submitted that the common law maxim "actio personalis moritur cum persona" applies to this case and, therefore, the action does not survive after the death of the injured.
8. In view of the rival contentions, the questions that arise for consideration are, (1) whether the claim for recovery of damages survives after the death of the injured, and (2) whether the legal representatives of the deceased (original petitioner-Jaheen Jamal alias Rumani) can continue the action, if there is loss to the estate?
9. The learned counsel for the petitioners relying upon a decision reported in Kongara Narayanamma v. Uppala China Simhachalam, 1975 ACJ 448 submits that the legal representatives of the deceased can be brought on record to continue the action for recovery of compensation, if there is loss to the estate of the deceased.
10. In the said decision, one Venkateswara Rao sustained injuries in a motor accident and, therefore, he filed O.P.149/66 claiming compensation under S. 110A(1) of the Motor Vehicles Act. He died even before the said petition was disposed of and his wife and children who are his legal representatives, filed an application to come on record. As the said application was dismissed by the Tribunal, the matter was carried in appeal to the High Court, and the matter came up before A. V. Krishna Rao, J. who allowed the said appeal. The learned Judge considered an identical question viz., whether the common law maxim 'actio personalis moritur cum persona' applies and in a well considered judgment, held that the cause of action survives to the legal representatives, if there is loss to the estate. It would be apt to wrote the following passage from his judgment.
"In making a claim, a claimant could claim, loss to his property of whatever description caused by the accident. There is no warrant for holding that the cause of action in respect of that loss would not survive to the legal representatives, in Halsbury's Laws of England Vol. 28, Page 100, it was stated that it was well settled that under the head 'loss to the estate of the deceased' damages could be claimed towards pain and suffering, loss of earnings and other damages actually suffered by the victim between the date of the accident and the moment of death, damages towards loss of personal property and damages towards loss of expectation of life may be awarded. If after the death of a person injured, the legal representatives could claim for pain and suffering, loss of earning as loss to the estate, I fail to see on what principle if a claim was made by an injured person and he dies thereafter the cause of action in respect of the aforementioned thing would not survive to the legal representatives".
11. Sri M. Lakshmana Sarma, learned counsel for the petitioners also brought to my notice a Division Bench judgment of Punjab and Haryana, reported in Joti Ram v. Chaman Lal, , which also followed the view expressed by Justice A. V. Krishna Rao. Therefore, it is clear that the action for recovery of damages for personal injuries will not die with the death of the injured and the maxim 'actio personalis moritur cum persona' has no application where there is loss to the estate of the deceased.
12. Sri B. V. Rama Mohan Rao, learned counsel for the third respondent placed reliance on a Full Bench decision of the Madras High Court in Rustomaji Dorabji v. W. H. Nurse, AIR 1921 Mad 1 (FB).
13. In the aforesaid decision, the defendant in a suit for malicious prosecution died before judgment was given and the question that arose for consideration was whether the right to sue survives to the plaintiff against the legal representatives of the defendant. The Full Bench took the view that the cause of action does not survive and the action comes to an end with the death of the defendant. All personal injuries are wrongs done to the person though not necessarily cause damage to the estate of the person wronged. Therefore, the Full Bench is not an authority for the proposition that the right to sue does not survive even in case of loss to the estate of the person wronged in case of his death.
The learned counsel for the 3rd respondent, next relied upon a decision reported in Arunachalam v. Subramanian, AIR 1958 Mad 142.
14. In this case, the defendant in a suit for malicious arrest dies. The Division Bench of the Madras High Court held that the right to sue does not survive. In this decision, the Division Bench followed the earlier Full Bench decision of the Madras High Court reported in Rustomaji Dorabji v. W. H. Nurse (supra). For the same reason already expressed by me in respect of the Full Bench decision, this decision also does not help the third respondent.
15. The learned counsel for the third respondent next relied upon a decision reported in G. Jayaprakash v. The State of Andhra Pradesh, 1976 (2) APLJ 300 : (AIR 1977 AP 20).
16. In this case, the third defendant who was the anaesthetist and the second defendant who was the surgeon that performed an operation on the plaintiff for tonsilectomy negligently and recklessly and, therefore, the plaintiff claimed a sum of Rs.50,000/- as damages. Pending the suit, the third defendant died and the questions that arose for consideration were, whether the cause of action survives and whether the legal representatives of the third defendant should be brought on record. As the application to bring the legal representatives of the third defendant on record was dismissed, a revision petition was filed in the High Court.
Justice Jaychandra Reddy, as he then was, dismissed the said revision, observing as follows :
"From the above disussion it is clear that the meaning of this maxim is that a personal action dies with the person, and the effect is that the death extinguishes the liability in tort. In other words the death of the party wronged or of the wrong-doer brings an end to the cause of action and the right to sue gets extinguished. But this is subject to a qualification, viz., where a tortfeasor's estate is benefited by the wrong done, an action would lie against the representative of wrong-doer. The essence of the maxim applies to an action brought for damages for a personal wrong."
"In the instant case, undoubtedly the action is brought by the plaintiff on the foot of a personal wrong of the deceased 3rd defendant and the 2nd defendant. Unless it is shown that the estate of the deceased 3rd defendant wrong-doer was benefited by the tortious act committed by him, the right to sue does not survive because the personal action is said to die with the person."
The learned Judge, therefore, has agreed with the maxim "actio personalis moritur cum persona", has application in respect of all personal wrongs, but he recognized an exception 'where a tort-feasor is benefited by the wrong done, an action would lie against the representatives of a wrong-doer'. Therefore, this decision also does not help the third respondent.
17. The learned counsel next relied upon another decision reported in C. Srinivasarao v. C. Narasimmharao, 1979 (2) ALT 221, wherein, it is held that after the death of the life estate holder who had only a life interest, the right to sue does not survive and that the cause of action being personal to the plaintiff, the right to sue disappears on her death. This decision does not advance the case of the third respondent.
18. In another decision reported in Jogindra Kuer v. Jagdish Singh, , the common law maxim "actio personalis moritur cum persona", came up for consideration, "whether death destroys the right of action :
The Division Bench of the Patna High Court, held as follows (at page 551):--
"This rule has been whittled down by certain statutes such as Fatal Accident Act, 1846, the Land Reform (Miscellaneous Provisions) Act, 1934 and other enactments. There being no specific statue in India on this topic, that maxim of the English Common Law has been followed here to some extent. The matter was at one time governed by S. 89 of the Probate find Administration Act, and now by S. 306 of the Indian Succession Act, which runs thus :
"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 not causing the death of the party, the relief sought could not be enjoyed or granting it would be nugatory".
"According to this section, all rights to prosecute or defend any action or special proceedings existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators, except certain causes of action including those for other personal injuries not causing the death of the party".
After reviewing the case law, the Court allowed certain claims which are not personal to the plaintiff. Therefore, the principle that the cause of action survives, if there is loss to the estate has been recognized.
19. Therefore, I have no hesitation to hold that in all cases cause of action survives where there is loss to the estate of the plaintiff. I am also fortified in this view by a decision of the Supreme Court reported in Girijanandini v. Bijendra Narain, , wherein, the Supreme Court observed as follows (at page 1131) :
"The maxim "actio personalis moritur cum persona" a personal action dies with the person has a limited application. It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief, granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory. Death of the person liable to render an account for property received by him does not therefore affect the liability of his estate".
Bound as I am by this decision, I have no hesitation in holding that the right to sue in this case survives and the legal representatives of the original petitioner are entitled to come on record to prosecute the original petition filed by late Jaheen Jamal alias Rumani.
20. In the view, I have taken, the order of the lower Court is liable to be set aside and the Civil Revision Petition has to be allowed. Accordingly, the Civil Revision Petition is allowed, but in the circumstances without costs.
21. Revision allowed.