SURESH CHANDRA ROY Vs. P B LALL

JUDGEMENT

(1.) An information was led before the Commission along with copy of death certificate that since the present matter under consideration in the revision petition was based on tort of medical negligence and as per legal provisions and the law laid down by National Commission and Honble Apex Court as well, cause of action in such matters is purely personal in nature, which does not survive after death of the respondent, and liability, if any, of the deceased respondent could not be passed on to the legal representatives as it was extinguished, alleged liability and the right to sue also gets extinguished and reliance was placed on a decision of Honble Apex Court in the case of G. Jayaprakash Vs. The State of Andhra Pradesh, AIR 1977 (AP) 20. It was accordingly submitted that the revision petition in the circumstances had abated. Petitioner too had moved an application/letter dated 3rd November, 2009 for substitution of heirs of deceased respondent.

(2.) The maxim actio personalis moritus cum persona as a general rule is applicable to actions in tort and, therefore, cause of action against the party against whom an action in tort is brought is extinguished on his death. At the cost of repetition, it may be stated that the personal right of action terminates with death of a person and the right to sue estate gets extinguished. In the complaint, allegation of negligence was against respondent doctor (since dead). However, in a case where trial had been completed and decree/judgment had been passed against the said deceased, amount payable under the decree could be recovered from estate of deceased and in that event legal representatives of the deceased could be brought on record. Inspiration can be drawn from observations made in the context of a 5-Member Bench of the National Commission in the matter of Balbir Singh Makol Vs. Chairman, M/s Sir Ganga Ram Hospital & Ors., 2001 (1) CPR 45 (NC). However, the dictum of actio personalis moritus cum persona was held to be not applicable in facts of the aforesaid case as the question as to whether treating doctor was negligent in discharge of his duties was yet to be adjudicated. In a suit for defamation, the Honble Apex Court in the matter of Melepurath Sankunni Ezhuthussan Vs. Thekittil Geopalankutty Nair, (1986) 1 SCC 118 had graciously observed that if the appellant dies during pendency of the appeal where a suit for defamation has resulted in a decree in favour of the plaintiff, the position is different as cause of action has merged in the decree and the decreetal debt forms part of his estate and the appeal from the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff respondent which his legal representative is entitled to uphold and defend and is, therefore, entitled to be substituted in place of the deceased respondent-plaintiff.

(3.) In the case under consideration, since petitioner had secured a decree from the fora below executable against respondent, in the light of observations made by Honble Apex Court, the cause of action has merged in the decree and the decretal debt forms part of the estate which can be realized from the legal representatives of the deceased doctor.