TORTS – problem question

1. ‘A’ filed a suit for defamation against ‘Z’, a newspaper company. While the suit
was pending, ‘A’ died. ‘Z’ pleads for abatement of suit. Decide.

ANS: THE SUIT WILL NOT SURVIVE AFTER THE DEATH OF THE APPELENT.
If a plaintiff dies during the pendency of suit for damages, the right to sue, which can also be
termed as a right to seek relief, would not survive. In the case Mr. Saifuddin Choudhary vs
Bartaman Limited And Anr, suit for defamation filed by one Mr. Saifuddin Choudhary
against two defendants. Defendant no.1 is the company which owns the newspaper
"Bartaman" which is alleged to have published a defamatory article. Defendant no.2 is the
Editor of the newspaper published by the defendant no.1. By this suit plaintiff claims
damages of Rs.20 lacs. In this suit, evidence of both the parties was complete when
unfortunately the plaintiff expired. The issue before this Court is that whether on the death of
a plaintiff in a suit for recovery of damages alleged to have been caused on account of
defamation, the suit survives i.e whether the right to sue survives and the legal heirs can be
brought on record and can they continue the suit for damages filed by the erstwhile plaintiff.
They replied on the judgment of Melepurath Sankunni Ezhuthassan Vs. Thekittil
Geopalankutty Nair it was held that “The position, therefore, is that had the Appellant died
during the pendency of his suit, the suit will be abated. The maxim 'actio personalis moritur
cum persona' embodies within it the English principle that a personal action dies with the
Plaintiff. Reading Section 306 of Indian Succesion Act of 1925 along with Rules 1 and 11 of
Order 22 of the Code of Civil Procedure, 1908, it is, however, clear that a cause of action
for defamation does not survive the death of the appellant. “
In view of the above, the suit is dismissed, inasmuch as, on the death of the plaintiff in this
suit for defamation and which suit under the law of tort, the right to sue does not survive.

2. ‘M’ a 10 year old child entered into a large pit which was kept open by the
public works department while repairing the public road. The child died in
consequent to breathing poisonous gas filled in the pit. The department claimed
contributory negligence in a suit which is filed by ‘M’s parents. Decide.
ANS: CONTRIBUTORY NEGLIGENCE WON’T SURVIVE AND THE DEPT MUST BE
HELD LIABLE.
In the case Marakkar vs State Of Kerala, Rafeeq, who was a school drop out was studying in
a parallel college. He was aged 17 years at the time of the accident. Rafeeq as usual set out on

his bicycle to the parallel college to attend classes. On the way back he fell into a pot hole on
the road. He suffered a head injury, later died. By his death his parents have suffered a loss of
Rs.30/- per day as his services are no more available. They would also say that they had to
borrow Rs.25,000/- for the treatment of Rafeeq. They also claimed amounts towards
transportation to hospital, funeral expenses etc. Even though compensation due, is much
more than Rs.2 Lakhs, the plaintiffs limited their claim to Rs.2 Lakhs with  future interest at
12%. The defendants resisted the suit. They denied that there was a pot hole as alleged in the
plaint. In the decision reported in  Darshan v. Union of India  the said principle was invoked.
That was a case in which the deceased had fallen into a man hole left uncovered by the
authority concerned and the authority was held responsible. In the said case it was observed
as follows:
"Coming to the instant case, it is one of res ipsa loquitur, where the negligence of the
instrumentalities of the State and dereliction of duty is writ large on the Red Fort in leaving
the manhole uncovered. The dereliction of duty on their part in leaving a death trap on a
public road led to the untimely death of Skattar Singh. It deprived him of his fundamental
right under Article 21 of the Constitution of India. The scope and ambit of Article 21 is wide
and far reaching. It would, undoubtedly, cover a case where the State or its instrumentality
failed to discharge its duty of care cast upon it, resulting in deprivation of life or limb of a
person. Accordingly, Article 21 of the Constitution is attracted and the petitioners are entitled
to invoke Article 226 to claim monetary compensation as such a remedy is available in public
law, based on strict liability for breach of fundamental rights."
The decision reported in  S.Vedantacharya v. Highways Department of South Arcot  may have
some help in this regard. That was a case where in a culvert gave way due to continuous rain
and flood and a vehicle plunged into the river and a person died. Damages were sought for.
The department came forwards with contention that rain had caused the damage. Rejecting
the claim, the Apex Court held as follows:
"We thing that merely because the cause of the accident was heavy rain and flood, Highways
Department cannot on that account alone claim to be  absolved unless there is something
further to indicate that necessary preventive measures had been taken anticipating such rain
and flood."

And later it was held in the case that, PWD was completely liable for his death and had to
give compensation.
It should also be noted that the child was a minor. Minors can’t be held for negligence since
they don’t have the mental capacity to think and act likes adults.

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