CHAPTER-1

INTRODUCTION TO DEATH IN RELATION TO TORTS

According to English Common Law, a personal cause of action against a person
comes to an end when he died. It means that if, in any case, either the plaintiff or
the defendant died, the cause of action came to an end.The rule is relevant in India
also and the same may be explained by a decision of the National Commission in
a consumer complaint in Balbir Singh Makol v. Sir Ganga Ram Hospital.1 In
this case 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 held that by the death of the surgeon,
the right of action had come to an end and the surgeon’s legal heirs cannot be held
liable in the case.

In East India Hotels Ltd. v. Klaus Mittelbachert,2 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 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 to the plaintiff was reserved. 3

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

1
I (2001) C.P.J. 45 (N.C.) .
2
A.I.R. 2002 Delhi 124 (D.B.) .
3
Klaus Mittelbachert v. East India Hotels Ltd., A.I.R. 1997 Delhi 201 (Single Judge ) .
Act recognizes 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 the defendant does not affect the cause of action. It means
that a subsisting cause of action survives in spite of the fact that either of the
parties to the action dies.

For example, if a person is injured in an accident, he may suffer 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.
Supposing the injured man, either before bringing an action or before the action
brought by him is finally decided, dies, the legal representatives of the deceased
are entitled to pursue the same action. It may be mentioned that the basis of the
action which the legal representatives are entitled to bring under the Law Reform
Act, 1934 is to claim compensation for such loss which had occurred to the
deceased in his lifetime but he could not claim compensation for the same due to
his death.

Shortening of the expectation of life:

If the expectation of life is reduced due to injuries suffered by a person, he is

entitled to claim compensation for the same under this head. Damages under this
head, for the first time, were allowed in 1935 in the case of Flint v. Lovell.4
There, the plaintiff, aged 69 years, but otherwise very active, was injured in an
accident caused due to the defendant’s negligence. According to the medical
report, he could not be expected to survive for more than one year now. The Court
of Appeal allowed him compensation under this head.

4
(1935) 1 K.B. 354