discharge of tort

Dr C J Rawandale, Director, Symbiosis Law School, NOIDA

Law of Torts, MV Accident and Consumer Protection Laws I

Discharge of Tort


Introduction

• A right of action for a tort may come to an end in one of the following ways:

• Death of parties;

• Waiver;

• Acquiescence;

• Release;

• Accord and Satisfaction;

• Statutes of Limitation.


1. Death of Parties

• According to English Common Law, a personal cause of action against a person came to an end when he died.

• The rule was contained in the maxim “Actio Personalis Moritur cum Persona”, which means that a personal cause of action dies with the person.


• Balbir Singh Makol v. Sir Ganga Ram Hospital, (2001) C.P.J. 45 (N.C.)

• A complaint was filed against a surgeon, whose blunder resulted in the death of the complainant’s son. While the complaint was still pending, the surgeon concerned died.

• The National Commission applied the rule “Actio Personalis Moritur Cum Persona” and held that by the death of surgeon, the right of action had come to an end and the surgeon’s legal heirs cannot be held liable in the case.


• E.I. Ltd. v. Klaus Mittelbachert, AIR 2002 Delhi 124

• A co-pilot in airlines stayed in Hotel Oberoi Continental, a 5-Star hotel having the facility of swimming pool. While diving his head hit on the bottom of the swimming pool, which resulted in serious head injuries to the plaintiff. In the single judge decision the plaintiff was allowed Rs. 50 Lakhs as Compensation.

• The above decision was appealed before the Division Bench. While the appeal was pending, the plaintiff died.

• It was held that the plaintiff’s suit abated on his death, and therefore, his legal representatives had no right to pursue the case and could not seek substitution in this case. The earlier Single Judge decision granting compensation was reversed.


Exceptions

• The following exceptions have been recognised to the above rule:

• a. Action under contract

• The rule that a cause of action came to an end with the death of either of the parties did not apply to an action under the law of contract. Contractual obligations could be enforced by or against the legal representatives of the parties to the contract.

• In case of contracts of personal service, such as the painting of a picture, however, the legal representatives could not be bound.


• Sections 37 and 40 of the Indian Contract Act also make a similar provision.

• S. 37. Obligation of parties to contract: -

• The parties to a contract must either perform or offer to perform, their respective promises, unless such performance is dispensed with or excused under the provisions of this Act, or of any other law.

• Promise bind the representatives of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contract.


• Illustrations:

• A promises to deliver goods to B on a certain day on payment of Rs. 1,000. A dies before that day. A’s representatives are bound to deliver the goods to B, and B is bound to pay the Rs. 1000 to A’s representatives.

• Mr. A, promises to paint a picture for B by a certain day at a certain price. Mr. A, dies before the day. The contract cannot be enforced either by A’s representatives or by B.


• S. 40. Person by whom promise is to be performed: –

• If it appears from the nature of the case that it was the intention of the parties to the contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor. In other case, the promisor or his representatives may employ a competent person to perform it.

• Illustrations:

• A promises to pay B a sum of money. A may perform this promise, either by personally paying the money to B by another, and if A dies before the time appointed for payment, his representatives must perform the promise, or employ some proper person to do so.

• A promises to paint a picture for B. A must perform this promise personally.


• b. Unjust Enrichment of tortfeasor’s estate

• If someone, before his death, wrongfully appropriated the property of another person, the law did not allow the benefit of that wrongfully appropriated property to pass on to the legal representatives of the deceased. The person entitled to that property was entitled to bring an action against the legal representatives of the deceased and to recover such property or its value.

• The idea behind the rule was that only what actually belonged to the deceased should constitute his estate and his estate should not be unjustly enriched by what does not belong to him.


The Law Reform (Miscellaneous Provisions) Act, 1934 and the position of the maxim

• The Common Law rule has been abrogated by the passing of the Law Reform (Miscellaneous Provisions) Act, 1934.

• Section 1(1) of the Act provides that:

“on the death of any person…all causes of action subsisting against or vested in him shall survive-against or, as the case may be, for the benefit of his estate.”


• The Act recognises an exception in respect of cause of action for defamation in which case the cause of action comes to an end, on the death of either of the parties.

• Thus, after the passing of the Law Reform Act, 1934, the general rule is that if a cause of action comes into existence in the lifetime of the parties, the death of either the plaintiff or defendant does not affect the cause of action.


• Illustration:

• If a person is injured in an accident, he may suffer loss in the form of medical expenses, loss of income during or after confinement as a result of being incapacitated from doing his normal work, pain and suffering or the reduction in the expectation of his life. He can obviously bring an action for the same.

• If, unfortunately he dies, the legal representatives of the deceased are entitled to pursue the same action.


• Rose v. Ford, (1937) A.C. 826

• A girl of 23 years was severely injured by an accident, caused by the negligence of the defendant. Two days after the accident, her leg was imputed and four days after the accident, she died.

• The father of the girl was entitled to claim compensation for the benefit of her estate on account of pain and suffering loss of leg and diminution in the expectation of her life.


• Nrusingha Charan v. Ratikanta, AIR 1978 Orissa 217

• A money decree was passed against a Hindu father in respect of an amount received by him by misrepresentation.

• It was held that the liability of the father in such a case was personal. It was not a debt which could be realised from the son under the dictum of moral obligation. Moreover, the plaintiff’s relief under the law of torts had ended with the death of the father and the son could not be made liable for the same.


• Zargham Abbas v. Hari Chand, AIR 1980 All 259

• The suit for damages for defamation on account of malicious prosecution was decreed against Zargham Abbas and his son, Ali Abbas. At the appellate stage, Zargham Abbas died.

• It was held that if the cause of action does not survive the death of the first appellant, it is the appeal which would abate and not the suit, and the decree under the appeal court still be executed against the assets in the hands of the heir.

• In this case the decree was jointly against the father and the son. It was further held that the death of the father did not affect the maintainability of the appeals from the decree.


2. Waiver By Election

• Where a man has more than one remedy for a tort, and he elects to pursue one of them, giving up the other remedies, the other remedies are waived.

• The phrase, “waive the tort” does not mean that the tort itself is waived; it is only the right to recover damages for the tort committed that is waived.

• If out of several civil remedies available for a wrong, the injured person elects to pursue only one of them, he shall be precluded from pursuing other afterwards.

• Waiver is express or implied.


3. Acquiescence

• It is a well settled principle of law that if a person, with full knowledge of his right to bring an action for tort, neglect to do so for a length of time, it may be inferred that he has abandoned the right.


4. Release

• It is open to an injured party to release the wrong-doer from liability for compensation.

• According to English Law, a release of rights must be supported by consideration or by a formal document signed, sealed and delivered.


• According to Section 63, the Indian Succession Act, consideration is not necessary for release, and therefore, it would be open to an injured party to release the wrong-doer without any consideration.

• But a release executed under mistake (Hore v. Becher, (1842) 12 Sim 465), or in ignorance of one’s rights (Phelps v. Amcott, (1869) 21 LT 167), or obtained by fraud (Hirschfield v. S.C. Ry. Co., (1876) 2 QBD 1) is not binding.


5. Accord and Satisfaction

• An accord is an agreement between two or more persons, one of whom has a right of action against the other, that the latter shall render and the former accept some valuable consideration in substitution for the right of action.

• ‘Accord’ indicates the agreement and ‘satisfaction’ the consideration which makes it operative.

• Just as civil obligation can be discharged by accord and satisfaction, as also tortuous liability can be discharged by accord and satisfaction.


• When an agreement had been reached between the parties, the consideration of which may have been settled to be paid even in future, the agreement once reached satisfied the claim, and is a bar to an action in court except of the agreement itself.

• But the agreement must be based on the payment of certain thing, otherwise an agreement, unaccompanied by a consideration, is void and is not a bar to the right of action.


6. Statutes of Limitation

• Action for tort must be brought within the prescribed statutory period; otherwise the right to sue is barred.

• In England, the Limitation Act, 1980 fixes the time during which actions of tort must be brought. In India, the Indian Limitation Act, 1963 lays down the respective period within which to sue for different parts.


• Section 3 (1) of the Limitation Act 1963, subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.


• Caution:

• There is a distinction between wrongs which are actionable per se and those which are actionable only where the plaintiff can prove that he has suffered actual damage.

• The period of limitation runs, in the first case, from the time when the wrongful act is committed; in the second, from the time of the plaintiff’s first sustaining actual injury.


• Thank You!

discharge of tort

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