effect of death.pptx

Law

1. EFFECT OF DEATH OF PARTIES IN TORT UNDER MV ACT Swathy P.S Batch – 1 Roll number - 61

2. INTRODUCTION The event of death of a party raises two kinds of question in the law of torts,

(a) If the wrongdoer, does a cause of action which had already accrued before death survive?

(b) Does the act causing death give rise to a cause of action?

3. Effect of Death on the Subsisting Cause of Action According to English common law, no cause of action arises against the person who is dead. This rule was contained in the maxim “Actio personalis moritur cum persona”, the cause of action dies with the person, and thus, if any of the parties die, cause of action comes to an end.

The application of the maxim in India can be seen in the case of:

4. Balbir Singh Makol v. Chairman, Sir Ganga Ram Hospital: A complaint was filed by Balbir Singh Makol against the surgeon alleging that his son died because of the blunder committed by the surgeon. While the proceedings were going on, the Surgeon died. The National Commission of India applied the maxim “Actio personalis moritur cum persona” and held that with the death of the surgeon the cause of action has also come to an end and therefore, the legal heirs of the surgeon cannot be made liable for the same.

5. Exception of the maxim “Actio personalis moritur cum persona” Action under Contract: The maxim does not apply to the cases where an action is brought under the law of contract, therefore the legal representatives of the person can be made liable for the performance. However, if the contract entered into is a contract of personal service, then the legal representatives would not be liable for the performance. Thus, for example, there is a contract with A for singing on a particular event and meanwhile, A dies, then the representatives of A cannot be made liable for the performance Unjust enrichment of tortfeasor’s estate: If someone, before his death has wrongfully appropriated the property of another person then the person whose property has been appropriated does not lose his right to bring an action against the representatives of the deceased and recover the property. The rationale behind it is that, only the thing actually belonged to the deceased can be passed to his representatives.

6. Shortening of the expectation of life One of the consequences which may attend physical injury is a shortening of expectation of life, so that the injured person can not in any possibility survive as long as he would otherwise have done.

If the expectation of life has been reduced because of the injuries caused by the defendant then the person is entitled for the compensation.

The compensation under this head for the first time was given in the case:

7. Flint v. Lovell Facts: the Plaintiff aged 69 years who was otherwise very active was injured in an accident caused because of the negligence of the defendant.

Held: The appellant court granted compensation to the plaintiff.

8. Rule in Baker v. Bolton The rule causing the death of a person is not a tort was lay down in the case of Baker v. Bolton, and therefore known as the rule in Baker v. Boulton. In Baker v. Bolton the plaintiff was held entitled for injury to himself and also the loss of wife’s society and distress, from the date of the accident till her death but not for any loss caused after death.

9. Exception to the rule in Baker v. Bolton However, there are certain exceptions available to the rule in Baker v. Bolton which are discussed below:

Death due to breach of contract: Although, causing the death of the person is not actionable under the law of tort but if the death is the result of the breach of contract then the fact of death can be taken into account to determine the damages payable on the breach of Contract.

10. Jackson v. Watson In this case the Plaintiff purchased a tin of Salmon from the defendants. Wife of the plaintiff died because of the consumption of salmon supplied by the defendants. It was found that the contents of the Salmon were injurious to health. It was held by the court that there was a breach of contract as the defendant has failed to supply the goods safe for consumption and hence, the plaintiff was held entitled to claim compensation for the loss of service of the wife due to her death.

11. Motor Accident Claim Tribunal [MACT] Motor Accidents Claims Tribunal has been created by the Motor Vehicles Act, 1988. It has been constituted to provide speedier remedy to the victims of accident by motor vehicles. The Tribunals takes away jurisdiction of Civil Courts in the matters which concerns the Motor Accidents Claims Tribunal. Appeals from Claims Tribunal lies with High Courts. The appeal is limited by time and has to be filed in the High Court within 90 days from the date of award of Claims Tribunal. ‘The High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.’ (Section-173). However, there is no time limit for filing motor vehicle accidents claim. But an unusual delay will demand an explanation by the Tribunal.

12. According to Section 166 of the Motor Vehicles Act,1988 compensation can be claimed – By the person who has sustained injury; By the owner of the damaged property; By all or any legal representative of the deceased who died in the accident; By duly authorised agent of the injured person or all or any of the legal representatives of the deceased who died in the accident. The claim Petition can be filed by the following– To the Claims Tribunal having jurisdiction over the area in which the accident occurred or, to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides, or carries on business or, within the local limits of whose jurisdiction the defendant resides.

13. The Motor Vehicles Act,1988 is a comprehensive legislation with the purpose of enhancing road safety. It also serves the purpose of welfare legislation by providing for compensation in case of loss of life or limb because of accidents by motor vehicles. Section-2(30) of the Act defines who is the ‘owner’. “Owner” is; a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement.

14. Following documents should accompany the Claim petition:- 1. Copy of the FIR registered in connection with said accident, if any.
2. Copy of the MLC/Post Mortem Report/Death Report as the case may be.
3. The documents of the identity of the claimants and of the deceased in a death case.
4. Original bills of expenses incurred on the treatment alongwith treatment record.
5. Documents of the educational qualifications of the deceased, if any.
6. Disability Certificate, if already obtained, in an injury case.
7. The proof of income of the deceased/injured.
8. Documents about the age of the victim.
9. The cover note of the third party insurance policy, if any.
10.An affidavit detailing the relationship of the claimants with the deceased.

15. The inquiry contemplated under Section 168 & 169 of the Motor Vehicles Act, 1988 is different from a trial. The inquiry contemplated under Section 168 of the Motor Vehicles Act arises out of a complaint filed by a victim of the road accident or an AIR filed by the police under Section 158(6) of the Motor Vehicles Act which is treated as a claim petition under Section 166(4) of the Motor Vehicles Act. These provisions are in the nature of social welfare legislation. Upon receipt of report from the police or a claim petition from the victim, the Claims Tribunal has to ascertain the facts which are necessary for passing the award. To illustrate, in the case of death of a victim in a road accident, the Tribunal has to ascertain the factum of the accident; accident having being caused due to rash and negligent driving; age, occupation and income of the deceased; number of legal representatives and their age. If the claimants have not produced copies of the record of the criminal case before the Claims Tribunal, the Claims Tribunal is not absolved from the duty to ascertain the truth to do justice and the Claims Tribunal can summon the investigating officer along with the police record. The Delhi High Court has passed sedirections in this regard. The Delhi High Court has summarized the procedure to be followed by the Claims Tribunal in motor accidents cases in Mayur Arora v. Amit.

16. CONCLUSION Earlier, the common rule was, smaller injuries fall within the purview of civil law and not the death of a person. But now, if the legal representatives of the deceased prove that the death was the direct cause of defendant’s tort, they would be entitled to special damages along with general damages.
Under English common rule, no cause of action arises against the person who is dead. However, the situation is quite different today, and the legal representatives are entitled to bring a legal action in a court of law. Similarly, the legal representatives of the deceased can be made liable in certain cases.
The rule in Baker v. Bolton has become outmoded and it is hoped that this outmoded rule will be discarded and the liability for the consequences of the death will be recognized either by some legislative actions or judicial pronouncements.