G JAYAPRAKASH Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The interesting question that fall for consideration in this civil revision petition is whether the legal representatives of a deceased tortfeasor can be brought on record in an action for damages for personal wrong. To decide this question it becomes necessary to consider the scope and applicability of the maximum actio personalis moritur cum persona.

(2.) For a better appreciation of the question the necessary facts may be stated. The petitioner filed the suit against two doctors and the State of Andhra Pradesh claiming a sum of Rs. 50, 000/- as damages alleging that the doctors were reckless and negligent in performing an operation on him for tonsilectomy. The 2nd defendant was the surgeon and the 3rd defendant was the anaesthetist working in the Government General Hospital, Guntur. After the suit was partly tried the 3rd defendant died on 16 4-73. The petitioner filed the interlocutory application to bring the legal representatives of the 3rd defendant, viz., the wife, two sons and a daughter, as parties to the suit. They opposed the application on the ground that the action being a personal one, the suit abated so far as the 3rd defendant is concerned. The lower Court dismissed the application filed by the petitioner applying the maxim and holding that the suit abated against the 3rd defendant.

(3.) In this petition Sri A. Hanu- mantha Rao, the learned counsel for the petitioner, has contended that a fiduciary relationship exists between a doctor and a patient and so the lower Court ought not to have applied the maxim actio personalis moritur cum persona to the facts of the case. He has also contended that there is an implied contract between the doctor and the patient and the legal representatives succeeding to the estate of the doctor should be made parties. Finally it is contended that a benefit accrues to the estate of the deceased from the wrongful act committed by him and as such his legal representatives must be made liable.