Discharge of Torts in India

In certain circumstances the right of action in tort is extinguished. In such cases the tort is committed but no action can be maintained and if a suit is brought it shall be dismissed. In such cases the wrong-doer is discharged from liability of tort. The circumstances in which ‘a person is discharged from the liability of tort committed by him are following:

1. Death of the parties

There are two different aspects of death in the law of torts. First, there is the problem of whether rights of action are extinguished by the death of one or other of the parties. For example, A assaults B. Before filing any suit of battery A dies. Here the question is whether right of action extinguishes, or its survivor and after his death his legal representative may file a suit. Secondly, there is a problem of whether the interest of one person in the life of another is recognised by the law of torts so as to afford the former a cause of action in respect of the latter’s death. A kills B. The question is whether the representative of B can file a suit in tort against A for the death of B.

The common law maxim in England is Actio personalis moritur cum persona, which means “personal action dies with the person”. With certain exception in the case of torts affecting interest in chattel and in land. At common law the death of either party extinguished a cause of action. Under common law the death of the wronged or of the wrong-doer would put an end to the cause of action. Therefore, a suit could not be instituted by or against his representation. But the case would be different if a decree has been passed before either of the parties dies. If the suit had ended in a decree for damages in favour of the palintiff further proceeding would not abate on the death of either party.

From time to time the rule was criticised, as it was neither based on justice nor commonsense.

The maxim also does not apply to suits for eviction under the Rent Control Acts and to industrial disputes under the Industrial. Disputes Act, 1947.

Thus in modern law, with the development of the principles of succession the importance of principle has declined. From time to time scope of the rule had been limited by various enactments and also with the recognition of many exceptions. Now, by passing the Law Reforms Act, 1934 (in England) this rule has been completely abolished. It provides that on the death of any person all cuases of action subsisting against or vested in him shall survive against, or as the case may be, for the benefit of his estate. Even before passing of the Law Reforms Act, 1934, two exceptions to the rule were admitted under the common law. They are as follows:

(A) Exceptions under Common Law

(1) Breach of contract: The maxim is not applicable to actions based on contract, for example, on the death of the creditor the debtor is not discharged from the liability of debt. This maxim applies to actions based on tort. To enforce contractual liabilities, suits can be brought against the legal representatives of the parties to the contract. But in personal service contracts, for example, painting of a picture, etc. the legal representatives are not bound.

Unjust enrichment of tortfeasors estate: In case where tortfeasor’s estate is benefited from the appropriation of palintiff’s property wrongfully, this maxim does not apply. Thus in cases affecting interest in chattel and land the maxim is not applicable.

(2) Wrongful use of another’s property: According to this exception an action would lie against the representatives of a deceased wrongdoer whose estate has been benefited by the appropriation of the plaintiff’s property. Thus in Philips v. Homfray, the defendant worked into the plaintiff’s mine and took away coal. It was held that after the death of the defendant an action could be maintained against his representative for the value of the coal wrongfully taken.

(B) Statutory Exceptions (English law)

(1) Law Reforms Act, 1934: The Act has abolished the common law rule of cause of action mentioned in the maxim actio personalis moriur cum persona. Section 1 of the Act provides that “on the death of any person all causes of actions subsisting against or vested in him shall survive against or for the benefit of his estate”, except action for defamation. In case of defamation the cause of action comes to an end, on the death of either of the parties. Thus after the Act of 1934 the general rule is that if a cause of action comes into existence in the lifetime of the parties the death of other party does not affect the cause of action. It means that subsisting cause of action survives inspite of the fact that either of the parties to the action dies.

But there are certain exceptions in the Act and in those circumstances the cause of action comes to an end with the death of either parties. These are matters of private nature where after the wrongdoer’s death no action can be initiated against the legal representatives of the deceased. They are the following:

(1) Defamation,

(2) Seduction

(3) Inducing one spouse to leave or to remain apart from the other.

(4) Damages for adultery.

If the plaintiff dies the damages recoverable for the benefit of his estate shall not include exemplary damages.

Measures of damages

In this respect an important question arises as to how much compensation should be given in such cases. There is no general test for assessing the amount of damages. In absence of definite test, the Court determines the amount of damages according to their discretion, which may be just or may not be just.

In Benham v. Gambling, a child aged two and half years, was seriously injured in an accident and as a result of which he died. The health of the child was good and he had been living in favourable circumstances. The subordinate court awarded 1000 pounds by way of compensation to his father. But the House of Lords reduced if to 200 Pounds. The Court held that the basis of compensation was not to be the number of years of life lost but the prospects of predominantly happy life. In such the court was in favour of awarding very moderate damages and even less in case of the death of child because the prospects of his life and happiness are very uncertain. The House of Lords laid down the following rules for determinations of damages on this point:

(1) The test to determine compensation is not the length of time of life of which a person has been deprived, but it should be the prospect of predominantly happy life.

(2) The test of happiness of life is not to be subjective, i.e., how the deceased thought about the chances of his own happiness, the test is an objection one.

(3) Very moderate damages should be allowed for an action under this head. In the case of death child the damages should be even less because the prospects of his real life and happiness of life does not necessarily depend on such things.

(4) The economic and social position of a deceased has to be ignored in assessing such damages, as the happiness of life does not necessarily depend on such things.

Damages under other Acts

Now under various Acts provisions have been made for payment of damages. Out of them the important Acts are the following:

(1) Fatal Accident Act 1976

The Fatal Accidents Act, 1846 was passed to remove the difficulties arising out of the rule in Baker’s case. The present position is governed by the present Fatal Accident Act, 1976, which has finally abolished the rule in Baker’s case. It also incorporates earlier Acts. The Act of 1976 recognised the right of certain dependents of the deceased, whose death had caused them damage, to bring action for damages after his death. Section 1 of the Act of 1976 provides :

“It death is caused by a wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.”

The list of dependents as originally defined in 1846 Act has been considerably enlarged by the Fatal Accidents Act, 1976, and by subsequent amendment of the Act by the Administration of Justice Act, 1982. The list of defendants now includes the following:

(1) The spouse, or former spouse, or a person who has been living as a spouse of the deceased in the same household for at least two years immediately before the death of the deceased;

(2) Any parent or the ascendants of the deceased, or a person was treated as a parent by the deceased.

(3) Any child or other descendant of the deceased, or a person who was treated by the deceased as the child of the family, and

(4) Any person who is, or is the issue of, a brother, sister, uncle and aunt of the deceased. A child, for the purpose of such an action, includes an adopted child, step-child and illegitimate child.

Thus the Fatal Accidents Act provides a new cause of action in favour of the dependents of the deceased as distinguished from continuation of or survival of a cause of action existing in favour of the deceased for the benefit of his estate as it provided by the Law Reforms Act, 1934. In respect of death after 1982 under the Fatal Accident Act, the spouse of the deceased or the parents of the deceased if he was an unmarried minor is entitled to claim a fixed sum of £ 3500 as damages for bereavement. The defendants are, in addition to the above, entitled to damages proportional to the injury resulting from the death to them.

In order to bring an action under the Fatal Accidents Act it is necessary to prove that the person on account of whose death the action has been brought must himself have been entitled to bring an action of his death had not ensued. It means that if the deceased had no such right then no action can be brought on his behalf. Similarly, if the deceased his undertaken the risk voluntarily the maxim volenti non fit injuria will apply and no action can be brought in a such case. Likewise, if there had been contributory negligence on the part of the deceased, the damages recoverable would be reduced in proportion to his contribution to the accident in accordance with the provisions of Law Reforms (Contributory Negligence) Act, 1945. Similarly if the deceased had recovered full compensation from the defendant in his lifetime then his legal representatives would not be entitled to bring an action for damages against the defendant.

(2) Coal Mining (Subsidence Act) 1957

This Act provides that the National Coal Board shall be responsible for the death of a person in the collapse of a coal mine, whether the collapse of coal mine might be the result of a person’s wrongful act, negligence or omission. Similarly, trespasser will also be not awarded any damages if he dies

(3) The Carriage By Air Act 1961

Under this Act the carrier will be liable for damages as a result of death of any passenger due to an accident takes place on board of aeroplane or during the embarking and disembarking of passengers or goods.

Position in Indian Law

The maxim actio personalis moritur cum persona (the right of person dies with the person) does not fully apply in India. Like in England, a number of exception have been admitted to this rule and as a result of which the rule has almost been abolished. The Indian Acts which have affected this rule are the following:

(1) Legal Representatives Suits Act 1855

Under Section 1 of the Legal Representatives Suits Act an action can be brought by the representatives, administrators and executors of a deceased person for any wrong committed in the lifetime of the deceased which had caused pecuniary loss to the estate of such person and for no other wrong, if committed within one year before his death. Thus, this Act applies to wrongs done to the property and to wrongs against the body of a person. Section 2 of the Act provides that the actions brought under this Act shall not cease, but may be continued by the executors and may be brought against them.

(2) The Indian Succession Act 1925

Section 306 of the Indian Succession Act, 1925, provides that on the death of a person “All demands whatsoever and all rights to prosecute or defend any action or special proceedings existing in favour of or against a person at the time of his deccase survive to and against his executors or administrators, except cause of action for defamation as defined in the Indian Penal Code, or other personal injuries not causing the death of the party.

After the enactment of this Act the position of Law in India is the same which obtained in England after the passing of the Law Reforms Act, 1934. Thus, except personal injuries in all cases the legal right to take action survives after the death of the parties.

In M. Veerappa v. Evelyn Sequeira, it has been held that the expression “personal injuries” does not mean injuries to the body alone but all injuries to a person other than those which cause death and the expression is to be read ejusdem generis with the words “defamation” and ‘assault” and not with “assault” alone. Thus the right of a father to sue for compensation for the seduction of his daughter is a personal right and dies with the father. So if a suit is filed by a father, it will abate on the death and no legal representative can continue it.

(3) Fatal Accidents Act 1855

This Act has been enacted on the lines of the English Fatal Accident’s Act. the provisions of both the Acts are similar Section 1 of the Act provides that whenever the death of a person shall be caused by wrongful act, neglect or default, the party who would have been liable if death had not caused shall be liable to an action for damages, and such action shall be for the benefit of the wife, husband, parent and child, if any, of the deceased person, and in every action the Court may give such damages as it may think proportionate to the loss resulting from such death to the parties respectively for whose benefit such action shall be brought. ‘Parent’ includes father, mother, grandfather and grandmother and ‘child’ includes son, daughter, grandson, grand- daughter, step-son and step-daughter. Such an action must of brought by and in the name of the executor, administrator or representative of the deceased. Section 2 of Act provides that only one action can be brought, and in respect of the same subject-matter of complaint. But proviso to the Section enables the representatives of the deceased to insert in the action a claim for any pecuniary loss to the estate of the deceased occasionally by the wrongful act or neglect or default.

(4) Carriage by Air Act 1972

This Act contains similar provisions as contained in the English Carriage by Air Act. According to this Act an action can be brought for the death of passengers against the carriers of passengers.

(5) Workmen’s Compensation Act 1923

This Act gives right to the dependents of a worker who dies during the course of service to bring an action for damages.

2. Waiver:

If out of the several civil remedies available for a wrong, the injured person elects to pursue only one of them, he shall be precluded from persuing others afterwards, e.g., if he elects to base his action on the ground of breach of contract, he cannot afterwards sue for it as a tort, for he will be deemed to have waived the rest of the remedies. Waiver is express or implied. 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.

But he can alternatively claim all the remedies in the same suit, e.g., he can say that if he be held to be not entitled to damage on the ground of breach of contract, then he may be awarded damages in tort.

3. Accord and Satisfaction:

Just as a civil obligation can be discharged by accord and satisfaction, as also tortious 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 satisfies 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.

4. Release:

It is open to an injured party to release the wrong-doer from liability to compensation. According to English Law a release of rights must be either supported by consideration or by a formal document signed, sealed and delivered.

Indian Law: In India, however, according to Section 63 of 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, or in ignorance f rights, or obtained by fraud, is not binding.

5. 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. Mere delay, however, is not sufficient, but there must be direct acquiescence to destroy the right of action.

6. Judgment Recovered

This is substantially the rule of res judicata, when once a suit has been filed and decided a second suit cannot be field on the same cause of action. More than one action will not lie on the same cause of action.

Where the injury is of continuing nature of the recovery of damages for the perpetration of the original wrong does not prevent the injured party from bringing a fresh action for the continuance of the injury. Where damage is not only the proper remedy, as in the cases of trespass, a fresh cause of action arises de die in diem. But in those cases where damage in the essence of the action, a fresh cause of action arises as often as fresh damage accrues.

7. Statutes of Limitation:

Action for tort must be brought within the prescribed statutory period, otherwise the right to sue is barred. In India the Indian Limitation Act lays down the respective period within which to sue for different torts.


In how many ways a tort can be discharged?

Explain the circumstances in which a person is discharged from the liability of a Tort committed by him.

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