Actio Personalis Moritur Cum Persona

The legal maxim "actio personalis moritur cum persona" means A personal right to action dies with person.

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This maxim was very first time used in a case in 1496 where an old woman died before paying damages. The old woman was liable for a case of defamation. It was the principal of early law that the death of either party to a personal duty takes away or remedy and destroys the duty. 

In England under the common law there was a general rule that on the death of any party in matter of tort it stands disposed off automatically. However in due course of time the rule was reversed by the Law Reform (Miscellaneous Provisions) Act, 1934 on the death of any person all causes of action vested in him shall survive for the benefit of his estate. Thus all causes of action in tort suit for defamation and the claim for damages for bereavement survive the deceased. 

Exceptions to the legal maxim Actio personalis moritur cum persona: 

• Defamation 
• Attack or assault
• Personal damages 

Thus right of action arising tinder the court the contract act cannot be quashed on the death of any party. Wherein the person had illegally acquired the property belonging to the other person, even on death of that person who possessed property unlawfully, right of action can be initiated against such person through his legal representatives. 

It has been described by Viscount Simon as “not in fact the source from which a body of law has been deduced, but a confusing expression, framed in the solemnity of the Latin tongue, in which the effect of death upon certain personal torts was inaccurately generalised”  

The doctrine is embodied and not peculiar to common law system. The idea belongs to primary strata in universal law. In modern times it has been gradually limited by judicial decisions and is now being still further restricted by legislation. 

A maxim stating that actions of tort or contract are destroyed by the death of either the injured or the injuring party. Modern statutes mean that this is rarely the case. However, before the passing of the Fatal Accidents Act 1846 acceptance of this notion meant that in actions in negligence it was better for a doctor to kill his patient outright than to injure him. This situation arose because it was originally believed that the primary function of tort was to punish and not to compensate for damage caused. The maxim still survives in the law of defamation (“you cannot defame the dead”).

In India under the Fatal Accident Act 1855 death caused on account of negligence, rashness and due to wrongful act the legal representatives of the deceased can sue. 

Even cases involving determination of liabilities of the parties arising as a result of breach of contractual duties, a personal right to action does not die with person. Their legal representatives or authorised attorney can file a suit for specific performance and claim damages. 

e.g. 1) If P commits battery on Q and either party dies the right of action which accrued to Q by the reason of the battery is taken away. 

e.g. 2) If P commits battery on Q or do other injury to him, any right of action which accrues to third person say wife a legal heir of Q, will not be affected by the death of Q so far as the application of the maxim is concerned. 

Case Laws:

1) In Gujarat State Road Transport Corporation Ahmedabad versus Ramanbhai Prabhatbhai, wherein due to negligence on the part of the petitioner's driver, a boy aged 14 years was crushed to death. Brothers of the deceased boy file suit claiming compensation. The motor accident claim tribunal passed award of compensation which was affirmed by the High Court and by the Apex Court. The Court held that contention of the compensation that right of personal action dies with the person is no more recognised rule of law. Hence, corporation is liable to pay compensation to the deceased brother. 

2) In Nurani Jamal And Others vs Naram Srinivasa Rao And Others [AIR 1996 AP 6] the maxim actio personalis moritur cum persona has applicable in respect of all personal wrongs but there is an exception where a tortfeasor is benefited by the wrong done and action would lie against the representatives of a wrongdoer. 

3) Baker vs. Bolton [KBD 8 Dec 1808] case arose : The defendants were the proprietors of a stage coach , on the top of which the plaintiff and his wife were travelling from Portsmouth to London. The coach was overturned and the plaintiff’s wife was so badly hurt that she died a month later. The plaintiff brought an action for negligence and sought to recover for the loss of service and consortium. It will be noted that the maxim actio personalis did not apply and there was nothing to show that the defendant’s conduct was felonious. Hence, the doctrine of merger was not applicable.

4) M. Veerappa vs Evelyn Sequeira & Ors: During the pendency of the suit the plaintiff died and his legal representatives, who are the respondents herein, filed a petition under order XXII Rule 3(1) of the Code of Civil Procedure seeking their substitution in the suit for prosecuting the suit further. The appellant opposed the application and contended that as the suit was one for damages for personal injuries alleged to have been sustained by the plaintiff, the suit abated on his death as per the maxim Actio Personalis cum moritur persona. The District Munsif upheld the objection and dismissed the suit as having abated but the High Court held otherwise and declared the legal representatives to be entitled to get impleaded and continue the suit.

5) In Girja Nandini Devi v. Bijendra Narain Choudhury observed as under: "The maxim 'actio personalis moritur cum persona' a personal action dies with the person has a limited application. It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory."

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Importance of Date in a pleading

Hello friends, if you are planning to approach Court in a case then you must know all the material facts clearly about the incidence specifically Dates related to that matter. Here I am sharing some abstract from a Supreme Court Judgement in which the actual date of a material fact pleaded by the respondent was not known to them. This blog is intended for knowledge purpose only. If you are really aggrieved then please contact a Lawyer in your city.

Title: Mahoora Bano vs National Insurance Company 

Date: 8 January, 2020

IN THE SUPREME COURT OF INDIA

Case no. CIVIL APPEAL No.78 OF 2020 (arising out of Special Leave Petition (C) No.5580 of 2018)

HON'BLE MR. JUSTICE N.V. RAMANA HON'BLE MR. JUSTICE V. RAMASUBRAMANIAN

Summary of Order passed (only for study purpose)

1. Leave granted.

2. Challenging an Order passed by the High Court allowing an application for review and reducing the compensation originally awarded in an appeal arising out of the award of the Motor Accident Claims Tribunal, the claimant has come up with the above appeal.

3. Dt. 17.11.2007 : road accident occurred causing permanent partial  disablement in left arm of appellant. Claim of Rs.30,00,000/ was filed before Motor Accident Claims Tribunal, Srinagar.

The Tribunal awarded a total compensation of Rs.2,75,000/­ as follows:

a)    mental agony: Rs.90,000/­

b)   expenses for employing an attendant: Rs.30,000/­

c)    medicines and diet: Rs.1,30,000/­

d)   transportation: Rs.25,000/­.

4. Appellant was not satisfied with the amount awarded, so she filed appeal in the High Court of Jammu and Kashmir at Srinagar.

On Dt. 11.06.2014 The High Court enhanced the compensation from Rs.2,75,000/­ to Rs.4,96,600/­ as follows:

a)    loss of income: Rs.2,01,600/­

b)   expenses incurred for taking treatment outside the State: Rs.20,000/­.

5. The award on account of loss of income was on the following grounds:

a)    appellant had an income of Rs.1500/­ per month

b)   60% permanent partial disablement

c)    multiplier of 17 applied upon 60% of the annual income namely Rs.18,000/

d)   Thus amount payable = Rs.2,01,600/­.

6. Insurance company filed a petition for review before the High Court. Insurer appointed a surveyor/investigator to investigate into the claim relating to the employment of the appellant. It was revealed that the appellant, who was employed on a temporary basis as a teacher, got regularized subsequently. Therefore, the Insurance Company sought a review on the short ground that there was no loss of income for the appellant.

7. Appellant was held guilty of suppression of material particulars in her claim petition, as she described her occupation as “household lady engaged in agriculture”. So High Court deleted a sum of Rs.2,00,000/­ which represented the compensation awarded towards loss of income.

8. Appellant was obviously employed as Rehbari Taleem (RT) teacher on a monthly salary of Rs.1500/­.

9. Appellant described her occupation as ­Government teacher, in her suit in Motor Accident Claims Tribunal. Thus it is not wholly correct to say that the appellant was guilty of willful suppression or the commission of fraud upon the Court.

10. Following facts can be seen from the order of Tribunal:

a)    the appellant was working as Rehbari Taleem teacher, earning a monthly income of Rs.1500/

b)   appellant would have completed five years of service and would have been regularized.

c)    On the account of documentary evidence provided by appellant it is clear that she is under Government employment as teacher.

11. All the grounds of appeal before the High Court were focused on inadequacy of compensation towards mental agony, medicines, diet, transportation etc. And she did not focus upon the refusal of the Tribunal to award any compensation for loss of income

12. Following facts can be seen from the order of High Court in the appeal of compensation:

a)    The finding recorded by the Tribunal is, thus, based on assumption, especially so in view of the categorical statement ‘made by the witness, Irshad Ahmad, that the appellant lost the job.’

b)   High Court actually took note of the employment of the appellant as a teacher and the allegation of suppression made against her by the Insurance Company.

13. High Courts observations in review petition: appellant was engaged as ReT and subsequently regularized as a General­line teacher, therefore, the contention raised in the appeal that she was a household lady working in agriculture fields has been proved false.

14. Petition of review by the insurer and the order of the High Court passed in the review application do not contain any date of regularization of the services of the appellant.

Dt. 22.03.2005: appellant was appointed on temporary basis as a teacher and she shall become permanent after 5 years of completion of her service i.e. in March ­2010.

15. On the date on which the appellant deposed before the Tribunal, the statement that she had not been regularized, was not false, but true. The High Court did not even know the date on which the appellant was regularized. Even the review petition filed by the insurer does not disclose the date of regularization. Therefore, the High Court could not have taken a pedantic approach and allowed the review application. Hence, the appeal is allowed and the impugned order of the High Court passed in the review application is set aside. The original order of the High Court passed in the main appeal shall stand restored.

Thanks for reading till the end. Please read complete order on IndianKanoon.