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D.S. Vasu and anr. Vs. Ethiraj (Minor Represented by Kannammal, Mother and Next Friend). - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1979)2MLJ490
AppellantD.S. Vasu and anr.
RespondentEthiraj (Minor Represented by Kannammal, Mother and Next Friend).
Cases ReferredPhilips v. Hemfrey
Excerpt:
- .....person for any wrong committed in the lifetime of such person. we are not concerned with any suit by executors, administrators or representatives. for the present, we are concerned with the suit against the heirs of a deceased person. there can be no dispute that the plaintiff could have proceeded against nagammal herself if she were alive. the only point is whether her heirs are liable with reference to this liability. on this point, the second part of section 1 is relevant and it may be quoted here:and further, an action may be maintained against, the executors or administrators or heirs or representatives of any person deceased for any wrong committed by him in his lifetime for which he would have been subject to an action, so as such wrong shall have been committed within one.....
Judgment:

V. Sethuraman, J.

1. The defendants in O.S. No. 2166 of 1970 in the City Civil Court, are the appellants. The plaintiff, a minor went to the flour mill belonging to one Nagammal, the mother of the defendants, on 12th August, 1968 at about 3 P.M. for polishing rice. According to the plaintiff, the servant employed in the mill received the rice and directed him to hold the bag under the huller to receive the polished rice and as he was holding the bag, the motor was switched on and the iron blade from the machine flew out and cut off his right arm below the elbow with the result that he fell down and sustained certain injuries apart from losing his right arm. The plaintiff therefore filed the present suit for recovery of damages of Rs. 15,000. As the said Nagammal had died by the time the suit came to be filed, he impleaded the children of the said Nagammal as defendants.

2. In the written statement filed by the defendants it was contended that the suit instituted on behalf of the minor plaintiff by his mother as his guardian was not proper as the father was alive, that the suit was not maintainable against the defendants and that' there was no negligence on the part of the said Nagammal so as to give rise to any claim for damages by the plaintiff. It was also contended that there was no request made to the plaintiff by any servant in the rice mill to hold the bag under the huller.

3. The learned Second Assistant' Judge framed six issues and came to the conclusion that the plaintiff was entitled to damages. He held, however, that the damages could only be Rs. 10,000 and decreed the suit accordingly. The defendants have come forward with the present appeal challenging the decree of the Court below.

4. The learned Counsel for the appellants contended that there was no liability for damages at all in this case, that in any event the liability was personal to Nagammal so that the defendants could not be proceeded against and that the quantum of damages was fixed in an arbitrary manner. Thus, three points arise out of these contentions, viz., (1) was there any liability to pay damages in the present case; (2) was the liability personal to Nagammal; and (3) whether the quantum of damages as fixed by the Court below, namely, Rs. 10,000 was properly fixed?

5. On the first point, the plaintiff himself has given evidence. He has stated the circumstances under which he went near the huller and he has also described the way in which the blade fell on him and cut his right arm. D.W. 1 is the first defendant'. He stated that the customers are not entitled to go inside the enclosed portion where there was a board with the caption 'Danger'. He was himself employed in the Easun Engineering Company as Sales Manager and he has admitted that he would be in office till about 5.00 P.M. He did not also witness the accident in question. His evidence is not therefore of any consequence as regards the points which arise for consideration here. D.W. 2 is the driver of the flour mill. He did not know how the accident occurred and he admitted that he was at the back portion and he came to know about the accident only after it happened. His evidence also cannot therefore be of any significance with reference to the points that arise before me. Thus, there is the uncontradicted evidence of P.W. 1 that he went to the rice mill on a particular day, that he was asked to hold the bag for collecting the flour and that he was injured at that time by the blade flying out of the machine. In these circumstances, it is clear that the accident happened when the blade escaped immediately the motor was started. The negligence on the facts is proved as, if the machinery had been properly maintained or tested, the blade would not have escaped from the machinery. The liability to damages is established from the evidence before me.

6. The next question is whether the defendants are liable for the damages. As mentioned already, the accident occurred at a time when Nagammal was alive. The defendants have inherited the mill from the said Nagammal on her death. The point to be considered is whether with the death of Nagammal the liability to damages disappears.

7. The maxim relied on in this connection by the appellant's counsel is actio personalis moritur cum persona which means a personal action dies with the person. This maxim, as text books on Torts state, was originally introduced to prevent action of a penal character like trespass and its offshoots being brought after the death of the wrongdoer against his representatives. Later on, the general language of the maxim came to be applied, perhaps misapplied, to cases of death of injured persons though to such cases the reason of the rule has no strict application. Even in Britain, where this rule was applied in the cases of liability under Torts, the Law Reform, (Miscellaneous Provisions) Act, 1934 ruled out the application of this maxim in several cases. Pollock on Torts refers to this rule as barbarous. It was pointed out by Lord Wright in S3 Law Quarterly Review 160, that the worst part of these maxims is that they are so difficult to get rid of. How far this maxim can be applied in India came for consideration before a Full Bench of this Court in Rustomji Dorabji v. W.H. Nurse and Anr. 40 M.L.J. 173 : I.L.R. (1921) Mad. 357 :14 L.W. 200 : A.I.R. 1921 Mad. 1. In that case, Rajagopala and Nurse gave a criminal complaint against Rustomji alleging commission of an offence under Section 471, Indian Penal Code. The prosecution ended in an acquittal. Rustomji filed a suit claiming damages for malicious prosecution against both of them. During the pendency of the suit Rajagopala died. The question was whether the suit abated against him. Coutts Trotter, J. with whom Ayling, J., agreed, considered that Section 89 of the Probate and Administration Act, 1881, applied and that Act XII of 1855 did not, since the latter Act did not deal with a suit during the pendency of which' one of the parties died. The result was that the suit, it was held, had abated as against Rajagopala. Kumaraswami Sastri, J., while agreeing with this conclusion, referred to Legal Representatives' Suits Act XII of 1855 and pointed out at page 375:

A right of action was given against the executors, administrators, heirs or representatives of a deceased person for any wrong committed by him in his lifetime for which he would have been subject to action if such wrong was committed within one year before his death.

The remedy given by the Indian Act of 1855 is, however, confined to suits brought subsequent to the death of the person.

8. Section 89 of the Probate and Administration Act, 1881 considered in that judgment corresponds to Section 306 of the Indian Succession Act. That section runs as follows:

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 of administrators, except causes of action for defamation or assault, as defined in the Indian Penal Code, or other personal injuries not causing the death of the party, and except also cases where after the death of the party, the relief sought could not be enjoyed or granting it will be nugatory.

9. A plain reading of this section would show that it addresses itself to cases where the proceedings are by or against the executors and administrators. In the present case, the proceedings are not taken either by or against the executors or administrators. Therefore, there is no scope for applying the provisions of Section 306 on the facts here.

10. My attention was drawn to a decision of the Judicial Commissioner's Court of Nagpur in Deeba v. Babaia . The facts in that case are not clear. The question in that case was whether a Hindu son could be held liable for torts committed by his father during the father's lifetime even if the torts resulted in no benefit to the joint estate. It was held that a Hindu son could be held liable for the torts committed by his father during his father's lifetime only to the extent to which the family estate has been benefited. Reliance was placed in this connection on a decision, in Philips v. Hemfrey (1883)24 Ch.D. 439. As already seen, the position relating to applicability of the maxim actio personalis moritur cum persona has undergone modification in 1934 even in U.K. This maxim has also been criticised even in Britain as seen already. At any rate, the maxim has no application where provision to the contrary has been made by the statute in Legal Representatives' Suits Act XII of 1855. That Act was promulgated on the 27th March, 1855. The preamble to that Act provided that it was expedient to enable executors, administrators or representatives in certain cases to sue and be sued in respect of certain wrongs which, according to the present law, did not survive to or against such executors, administrators or representatives. Section 1 of that Act falls into two parts. The first part refers to maintainability of the action by the executors, administrators or representatives of any deceased person for any wrong committed in the lifetime of such person. We are not concerned with any suit by executors, administrators or representatives. For the present, we are concerned with the suit against the heirs of a deceased person. There can be no dispute that the plaintiff could have proceeded against Nagammal herself if she were alive. The only point is whether her heirs are liable with reference to this liability. On this point, the second part of Section 1 is relevant and it may be quoted here:

And further, an action may be maintained against, the executors or administrators or heirs or representatives of any person deceased for any wrong committed by him in his lifetime for which he would have been subject to an action, so as such wrong shall have been committed within one year before such person's death; and the damages to be recovered in such action shall, if recovered against an executor or administrator bound to administer according to the English Law, be payable in like order of administration as the simple contract debts of such person.

In effect, with reference to a suit against the executors, administrators or heirs or representatives of any deceased person in respect of any wrong committed by him in his lifetime, there is the liability to pay damages and that is why a period of one year has been fixed as the period of limitation for commencing any such action. In the present case, there is no dispute about the action having been commenced within the period of one year. Therefore, the suit is very much within the scope of provisions of Section 1 of Act XII of 1855 and has been instituted within the period contemplated by it. The suit is thus maintainable against the heirs of Nagammal. It may be pointed out that while the first part of Section 1 does not contemplate heirs commencing proceedings, the second part provides for suits being instituted against, amongst others, the heirs. This clearly goes to confirm the view that the suit was liable to be filed against heirs also. The maxim above referred to has no application here. The maintainability of the suit is thus not open to any doubt.

11. The last point is as regards the sum of Rs. 10,000 fixed as compensation. It is in evidence that the plaintiff sustained the injury and lost his right arm when he was aged about 11. He had to undergo treatment in the Railway Hospital here and later he had to go to Poona for getting an artificial limb fitted. With the artificial limb, he is able just to take his food, etc. The service of the arm is not as useful as it would have been, if he had the original limb. He was reading in the fifth standard at that time and he continued his studies upto 7th standard and ultimately he had to give up his studies for reasons which we need not go into. Even as a casual labourer, he would have been in a position to earn a sum of Rs. 100 per month. A sum of Rs. 10,000 awarded to him would only bring an amount of Rs. 1,000 per annum by way of interest if deposited in a Nationalised Bank. He gets a monthly income of about Rs. 80 per month. I do not consider that in a case like this, the compensation so awarded can be said to be excessive. The appeal is accordingly dismissed. No costs.


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