Death

In one minute

Death raises two questions in tort. First, does a claim survive when the claimant or the wrongdoer dies? The old rule said a personal action died with the person. Section 306 of the Indian Succession Act, 1925 now saves most claims.

Second, what can the family claim when a wrong causes a death? The Fatal Accidents Act, 1855 gives the wife, husband, parent and child a right to sue. The Motor Vehicles Act, 1988 gives a similar claim for road deaths. The exam statement "death creates or extinguishes liability" refers to these two points.

Legal provision

• Section 306, Indian Succession Act, 1925: all demands and rights to prosecute or defend an action existing in favour of or against a person at his death survive to and against his executors or administrators. The exceptions are causes of action for defamation, assault or other personal injuries not causing death, and cases where the relief could not be enjoyed after death.
• Sections 1A and 2, Fatal Accidents Act, 1855: a suit may be brought for the benefit of the wife, husband, parent and child of the deceased. This applies where death is caused by a wrongful act, neglect or default that would have given the deceased a right to sue. The damages are proportioned to the loss resulting to them.
• Sections 165 and 166, Motor Vehicles Act, 1988: a Claims Tribunal decides claims for death in motor accidents. An application can be made by all or any of the legal representatives of the deceased.
• Section 164, Motor Vehicles Act: Rs 5 lakh is payable on death without proof of fault.
• Order XXII, rule 1, Code of Civil Procedure, 1908: a suit does not abate by the death of a party if the right to sue survives.

Meaning and definition

The maxim actio personalis moritur cum persona means that a personal action dies with the person. At common law, a claim in tort ended if either the wrongdoer or the injured person died. It also meant that killing a person gave his family no claim at all.

The rule caused injustice. A wrongdoer who killed a person outright was in a better legal position than one who only injured him. Legislation has reversed this in two steps. It lets most claims survive, and it gives the family a new claim for a death caused by a wrong.

Detailed explanation

Step 1: survival of claims on death

• Claimant dies. Under section 306, most causes of action pass to his executor or administrator, who may continue the suit. Order XXII, rule 1 of the CPC says that the suit does not abate if the right to sue survives.
• Wrongdoer dies. The claim can be brought or continued against his executor or administrator, and paid from his estate.
• What does not survive. A claim of the deceased for defamation, for assault, and for personal injury not causing death does not survive his death. The reason is that the harm was personal to him.

Step 2: death caused by a wrong

The common law gave no action for causing a death. The Fatal Accidents Act, 1855 created one. The conditions are:

1. the death must be caused by a wrongful act, neglect or default;
2. the act must be of such a kind that, if death had not followed, the deceased could have sued; and
3. the claim is for the benefit of the wife, husband, parent and child of the deceased.

The court awards damages in proportion to the loss that the family has suffered. This is mainly the loss of the financial support the deceased would have given.

Step 3: motor accident deaths

Most death claims in India arise from road accidents. The Claims Tribunal under the Motor Vehicles Act decides them. The legal representatives of the deceased may apply. The tribunal awards "just" compensation. The method is:

• find the yearly loss of dependency, which is the deceased's income less what he spent on himself;
• add future prospects, which is the likely rise in his income;
• apply a multiplier chosen by the age of the deceased, as set out in Sarla Verma v. Delhi Transport Corporation (2009); and
• add fixed sums under the conventional heads: loss of estate, loss of consortium and funeral expenses.

The Constitution Bench in National Insurance Co. v. Pranay Sethi (2017) settled the rules for the future prospects and the fixed heads. For a person with a permanent job, the addition is 50 per cent, 30 per cent or 15 per cent by age band. For a self-employed person, it is 40 per cent, 25 per cent or 10 per cent. The fixed sums are Rs 15,000 for loss of estate, Rs 40,000 for loss of consortium and Rs 15,000 for funeral expenses, rising by 10 per cent every three years.

Step 4: reputation of the dead

A civil claim for the defamation of a dead person does not arise, as the right to sue for defamation is personal. The criminal law may punish a statement about a dead person that would have harmed his reputation if he were alive and is meant to hurt the feelings of his family (section 356, Bharatiya Nyaya Sanhita, 2023). A family member can complain in that case. The note on defamation covers this.

Step 5: statements such as "death creates or extinguishes liability"

• Extinguishes. Under the old rule and under the exceptions in section 306, death ends some personal claims, such as defamation.
• Creates. The Fatal Accidents Act, 1855 and the Motor Vehicles Act create a liability to the dependants that did not exist at common law.

• Death and tort claims
  • Does the claim survive the death of a party?
    • SurvivesMost claims, for or against the executor (section 306, Succession Act).
    • Does not surviveDefamation, assault and personal injury of the deceased not causing death.
  • Death caused by a wrong
    • Fatal Accidents Act, 1855Wife, husband, parent and child sue for loss.
    • Motor Vehicles Act, 1988Legal representatives claim before the Claims Tribunal.

Don't confuse: survival of actions and claims for causing death

Point	Survival of the deceased's own claim	Dependants' claim for causing death
Whose right	The deceased's, passing to his estate	The family's own right
Source	Section 306, Succession Act	Fatal Accidents Act, 1855; Motor Vehicles Act, 1988
What is claimed	The loss the deceased suffered before death	The family's loss of support from the death
Example	Damage to a car before the owner dies	A road accident that kills the breadwinner

Common mistakes

• Writing that every claim dies with the person. Section 306 saves most.
• Forgetting the exceptions: defamation, assault and personal injury not causing death.
• Mixing the two claims. The deceased's own claim passes to the estate. The dependants' claim is a separate right.
• Saying only dependants get compensation. Legal representatives can claim in motor accident cases.
• Forgetting that a civil claim for defaming a dead person does not arise.

Apply it

Leading case laws

• National Insurance Co. Ltd. v. Pranay Sethi (2017)

  Facts. Conflicting three-Judge decisions on compensation for a person killed in a road accident went to a Constitution Bench.

  Principle. The Constitution Bench fixed the addition for future prospects and the amounts under the fixed heads.

  Why it matters. It guides every death claim before a Claims Tribunal.

• M.P. State Electricity Board v. Shail Kumari (2002)

  Facts. A cyclist was killed by a live wire lying on a road. The Electricity Board said a stranger had drawn power from its line.

  Principle. The Supreme Court held the Board liable on strict liability. The widow and minor son recovered compensation.

  Why it matters. It shows a death claim by dependants against a public body.

• Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. (P) Ltd. (1977)

  Facts. A passenger died when a car driven by a company's manager hit a tree. His widow and children claimed compensation.

  Principle. The Supreme Court allowed the claim and fixed compensation of Rs 27,500.

  Why it matters. An early example of a claim by dependants for a road death.

How to write this answer in the exam

Key points to remember

• Old rule: actio personalis moritur cum persona.
• Section 306, Indian Succession Act, 1925 saves most claims, for and against the estate.
• Exceptions: defamation, assault and personal injury not causing death.
• Fatal Accidents Act, 1855: wife, husband, parent and child may sue for a death caused by a wrong.
• Motor Vehicles Act: legal representatives claim before the Claims Tribunal.
• No civil action lies for defaming a dead person.

Quick self-test

Related topics

• Extinction of liability
• Parties to proceedings
• Liability arising out of accidents -Relevant provisions of the Motor Vehicles Act
• Defamation