Kumud Lall vs. Suresh Chandra Roy (Dead) Thr Lrs

2026 INSC 443
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. OF 2026
[ Arising out of Special Leave Petition (Civil) Nos. 33646 – 33647 of
2018 ]
Kumud Lall …..Appellant
VERSUS
Suresh Chandra Roy (Dead)
Through LRs and Others …..Respondents
WITH
CIVIL APPEAL NOs. OF 2026
[ Arising out of Special Leave Petition (Civil) Nos. 33648 – 33649 of
2018 ]
Amit Kumar …..Appellant
VERSUS
Suresh Chandra Roy (Dead)
Through LRs and Others …..Respondents

Signature Not Verified
Digitally signed by
NIDHI AHUJA
Date: 2026.05.04
17:40:19 IST
Reason:

1

J U D G M E N T
J.K. Maheshwari J.
1. Leave granted.
2. The present appeals arise out of the challenge preferred by
1
the legal heirs of the alleged medically negligent doctor (deceased
2
now), to the order passed by the National Consumer Dispute
Redressal Commission, New Delhi (in short ‘NCDRC’ ), thereby
allowing the application filed by the complainant (deceased now)
seeking substitution of the legal heirs of the doctor, pending
revision and directing them to be brought on record. On filing
3
review, it was also dismissed observing that the legal heirs shall
be liable to satisfy the decretal amount to the extent payable from
the estate left behind, on conclusion of the proceedings. Hence, the
instant appeals to assail the orders passed in main case and
review.
BRIEF FACTS

1
Wife and son.
2
26.05.2010 (Impugned Order I) in M.A. No. 1214 of 2009 (Application for substitution)
in Revision Petition No. 432 of 2006.
3
vide order dated 24.05.2018 (Impugned Order II) passed in M.A. No. 324 of 2011 (Review)
in Revision Petition No. 432 of 2006 and R.A. No. 70 of 2011 (Review) in Revision Petition
No. 432 of 2006
2

3. The case as set up by the complainant before District Forum,
Munger, Bihar (in short ‘District Forum’ ) was that he consulted
Dr. P.B. Lall (deceased) at his private clinic on 10.02.1990 due to
complain of severe pain by his wife in her right eye. On
examination, Dr. Lall advised immediate operation, which was
done on 11.02.1990. However, the pain reoccurred on 16.03.1990
and she was taken back to Dr. Lall. Despite further treatment,
there was no relief. The complainant consulted with other doctors
at Bhagalpur and Aligarh, but having no respite, he consulted Dr.
B. Sridhar at Shankar Netralaya, Madras. As alleged, he informed
that his wife had already lost vision of right eye due to wrong
treatment and operation, which can further affect the vision in her
left eye. On advice of surgery of his wife’s left eye, she was operated
on 05.05.1994. Consequently, the complainant had to visit Madras
multiple times, and the treatment of his wife with local doctor
continued till 05.08.1997.
4. The consumer complaint under the Consumer Protection Act,
1986 (in short ‘1986 Act’ ) was filed on 13.08.1997 against Dr. Lall
for alleged deficiency in service, claiming compensation as follows
–

3

a. Operation charges and clinic charges, medicine

etc. paid to the opp. party at Munger. Rs. 5000/-
b. Doctor’s fee at Bhagalpur, Munger, two
operation charges at Madras, expenditure,
train fare, fooding, lodging, medicine etc.
at Aligarh and Madras correspondence Rs. 75,000/-

c. Compensation for damage for loss of eyes Rs. 3,50,000/-
d. Mental agony and harassment Rs. 20,000/-
Rs, 4,50,000/-
5. The District Forum vide order dated 05.11.2003 partly
allowed the complaint holding the doctor negligent for deficiency
in service and held him liable to pay compensation of Rs.
2,00,000/- for loss of vision. In addition, Rs. 35,000/- for
expenditure and treatment, and Rs. 25,000/- for mental agony,
making total Rs. 2,60,000/- be paid within 3 months.

6. Being aggrieved, complainant and Dr. Lall both approached
State Consumer Disputes Redressal Commission, Patna, Bihar (in
short ‘SCDRC’ ) filing Appeal Nos. 598 of 2003 and 607 of 2003
respectively. Both the appeals were decided vide common order on
02.12.2005, and the appeal filed by the complainant was
4

dismissed, while the appeal of Dr. Lall was allowed, setting aside
the order of District Forum. The SCDRC noted that the loss of
vision of the wife of complainant was due to glaucoma and not
curable even after the surgery was done desperately by Dr. Lall
with intent to relieve her from pain. The surgery performed was
acceptable under the medical ethics and with the best of the
abilities by Dr. Lall. The complainant has not produced any report
from any expert of medical board or any expert to show that in
doing surgery Dr. Lall was negligent. In absence of expert evidence
to substantiate the allegation of medical negligence leading to loss
of vision, holding the doctor guilty for the same is not sustainable.
7. Dissatisfied, the complainant preferred Revision Petition No.
432 of 2006 before NCDRC assailing the order of SCDRC, pending
which, Dr. Lall passed away on 04.08.2009. The complainant filed
M.A. No. 1214 of 2009 for substitution of legal heirs (wife and son)
in the revision petition, which was allowed by NCDRC on
26.05.2010 (Impugned Order I), substituting the appellants herein
4
as legal heirs. On notice, both wife and son filed applications

4
MA No. 324 of 2011 (by wife) and R.A. No. 70 of 2011 (by son).
5

5 6 7 8
under Order XXII Rule 1 and 4 read with Section 151 of Code
9
of Civil Procedure (in short ‘CPC’ ) and Section 22 of 1986 Act,
praying to drop their names from the proceedings, to dismiss the
recall by the order dated 26.05.2010. It was said, since Dr. Lall
had succeeded in the appeal before SCDRC, and died during the
pendency of the revision, no subsisting decree existed on the date
of his death, hence, the proceedings would stand abated. Further,
the applicants were never served with any notice at any stage
before joining them as party to the revision petition. In the
meantime, the original complainant also died on 16.01.2014 and
her legal heirs were substituted.
8. NCDRC vide order dated 24.05.2018 (Impugned Order II)
dismissed both the applications and posted the matter for final
hearing on 20.09.2018. Aggrieved by the said order, the present
appeals have been filed wherein after issuing notice, stay on
further proceeding was granted on 18.12.2019. Having regard to
the nature of the controversy, this Court by order dated
13.01.2026 appointed Mr. Raghenth Basant, learned senior

5
Death, Marriage and Insolvency of Parties.
6
No abatement by party’s death if right to sue survives.
7
Procedure in case of death of one of several defendants or of sole defendant.
8
Saving of inherent powers of Court.
9
Power of and procedure applicable to the National Commission.
6

counsel and Mr. Varun Kapoor, learned counsel as amicus curiae
to assist the Court, on the issue as involved.
SUBMISSION OF THE APPELLANTS

9. Ms. Sarvshree, learned counsel appearing on behalf of the
appellants submits that the alleged incident of medical negligence
is of 11.02.1990, though the complaint was filed on 13.08.1997,
almost a delay of 7 ½ years. There is no proximity between the date
of alleged incident and the date of filing complaint. The
complainant took his wife to multiple other doctors for treatment
but of no avail. Dr. Lall had unblemished record and was a
specialist having MBBS (Pat), M.S. (Eye), M.S. (ENT), DO (London)
degrees, were qualified and well respected.
10. Learned counsel further submits that the complaint was
dismissed by SCDRC and during pendency of revision Dr. Lall
passed away. Therefore, on the date of death of Dr. Lall, no formal
decree of any forum/Commission exist against him. In such
eventuality, the proceedings ought to have been closed as abated,
and for alleged negligence of deceased, no right to sue survive
against the legal representatives. Nonetheless no loss to estate is
claimed by an enrichment of estate of Dr. Lall LRs, and hence
cannot be substituted. Therefore, in absence of decree, recording
7

finding of personal injury due to medical negligence, no
proceedings can continue against the legal heirs of the doctors in
10
view of Section 306 of the Indian Succession Act, 1925 (in short
‘1925 Act’
).
11. It is also urged, in the 1986 Act, opposite party has not been
defined and in case of death of opposite party rendered service in
person, his/her legal heirs cannot be substituted for any negligent
act of individual Doctor. To buttress the submissions, reliance has
been placed on Melepurath Sankunni Ezhuthassan Vs.
11
Thekittil Geopalankutty Nair , M. Veerappa Vs. Evelyn
12
Sequeira , Balbir Singh Makol Vs. Chairman, M/s Gangaram
13
Hospital and Others , Neeraj Amarnath Dora Vs. Nandan
14
Hospital and Others , G. Jayaprakash Vs. State of Andhra
15
Pradesh .
SUBMISSION OF THE RESPONDENTS

10
Demands and rights of action of or against deceased survive to and against executor or
administrator.
11
(1986) 1 SCC 118
12
(1988) 1 SCC 556
13
2001 (1) CPR 45 (NC)
14
II 2011 CPJ 171 (NC)
15
AIR 1977 (AP) 20
8

12. Mr. Umesh Sinha, learned counsel appearing for respondents
vehemently argued and said the provisions of CPC are applicable
to 1986 Act, and in terms of Order XXII Rule 4, even if sole
defendant dies, his legal heirs ought to be substituted when right
to sue survive. He submits that, the legal heirs of Dr. Lall inherited
his estate and in case, liability, if any, is fixated for his negligence,
it may be recoverable to such extent from his estate. The legal heirs
of Dr. Lall stepped into his shoes by virtue of Section 2(11) of CPC,
which defines ‘legal representative’ a person in law who represents
the estate of the deceased.

13. He further submits that Section 13(7) of the 1986 Act
provides for applicability of Order XXII where the complainant or
the opposite party dies. Rule 4 of Order XXII prescribe the
procedure on death of one of several defendants or of sole
defendant, hence, NCDRC was right in continuing the proceeding,
substituting the legal heirs of Dr. Lall.
14. Countering the applicability of Section 306 of 1925 Act, it is
submitted that maxim ‘actio personalis monitor cum persona’ (a
personal action dies with the person) has been stated to be
9

th 16
‘unworkable’ in today’s social jurisprudence as per 178 Report
of the Law Commission of India and recommended for the
th 17
amendment. Same view has been subscribed in the 8 report of
the Haryana Law Commission. He further submits that no fault is
attributable to him in the present case, as he has been pursuing
the case diligently. At this stage, merely pecuniary claim survives,
which can be satisfied from the estate of the opposite party, in
case, the claim is decided in his favour. It is said, the application
seeking substitution has rightly been allowed, otherwise, it would
be amounting to reject the claim at the threshold at revisional
stage without touching the merit.
SUBMISSION OF INTERVENOR
15. Mr. Shyam Padman, learned senior counsel, representing
Indian Medical Association, Kerala State Branch, submitted that
the 1986 Act does not provide any definition of ‘opposite party’,
indicating a conscious legislative intent to survive any claim or to
continue such claim against the estate of the opposite party after
death. The procedure to follow is provided in Section 13(7) of the

16
December, 2001.
17
02.12.2022
10

18
1986 Act or Section 38 (12) of the Consumer Protection Act, 2019
(in short ‘2019 Act’ ), which refers the procedure of Order XXII of
CPC. Since both the Acts are silent on the issue of abatement and
nor do they override Section 306 of 1925 Act, therefore entire
domain is governed by Order XXII of CPC read with substantive
law on the issue.
16. It is submitted Section 306 of 1925 Act is subject to qualify
that such proceedings may continue against the executor or
administrator where the right to sue survives. In case, the
proceedings do not reach to a final conclusion, no liability can be
said to be crystallized against the opposite party and if party dies
in absence, no transmissible obligations persist.
SUBMISSION OF AMICUS CURIAE
17. Mr. Raghenth Basant, learned senior counsel, and assisted
by Mr. Varun Kumar Kapoor, learned counsel, appearing as
amicus submitted that Section 13(7) of 1986 Act addresses the
contingency where either party to a pending proceeding dies and
provides, the matter be dealt in accordance with Order XXII of
CPC. In the present case, the opposite party had succeeded in

18
Procedure on admission of complaint.
11

appeal, the question remains as to whether on his death during
pendency of revision, the right to sue survives or not. To ascertain,
substantive law has to be looked into vis-à-vis the general principle
under Section 306 of 1925 Act.
18. He submits that, Section 306 of 1925 Act carves out an
exception to the transmissibility of right to sue or to be sued, to
the executors or administrators of deceased party. The exception
being ‘personal injuries not causing death of the party’ , applies to
claims, not resulting in death, implying such personal cause of
action do not survive and end with the death of the person.

19. Supplementing the arguments of the respondents, he drew
th
our attention to the 178 report of the Law Commission of India,
th
8 report of the Haryana Law Commission, Kerala Torts
19
(Miscellaneous Provisions) Act, 1976 and practices of other
common law countries who have dispensed with the application of
maxim ‘actio personalis moritur cum persona’ .
20. Lastly, placing emphasis on the legislative intent underlying
Section 13(7) of 1986 Act read with Order XXII of the CPC, he
submits that if the principle laid down in Balbir Singh Makol

19
which allows all causes of action to continue except defamation, seduction or adultery.
12

(supra) is applied, it would result in material inconsistency.
According to him, the right to sue would not survive if the opposite
party dies during the pendency of the complaint, yet it would
survive where the death occurs during the pendency of an appeal
against a decree passed against the opposite party.
21. Learned amicus has also suggested possible interpretations,
whether or not the right to sue survives on death of the
complainant or opposite party (medical professional/doctor). The
suggested interpretations are for convenience as quoted –
On death of complainant
Interpretation A – All claims shall survive on death of complainant
because of 1986 Act and 2019 Act being subsequent and special
laws, they shall govern the field.
- The 1986 Act defines the word complainant to include
consumer’s legal heirs and the definition given under Section
2(5)(v) makes it clear that upon death of original consumer, the
LRs can step into his shoes, meaning thereby, the claim can
continue through LRs and is not meant to extinguish, reflecting
conscious legislative intent.
13

- Similar is the situation in the subsequent 2019 Act, where
similar definition has been provided under Section 2(5)(vi) and
once again Parliament has recognized the right of the consumer
to seek redressal of his claim after his death through LRs.
Interpretation B – Only claims amounting to ‘loss to estate’ can
survive.
- Personal injury stipulated under Section 306 of 1925
mistakenly assumes to cover all tortious acts and negligence
where direct injury is suffered.
- Loss to the estate following such injury ought to be extricated
from the ambit personal injury, since any such loss to the
estate from an actionable wrong does not partake the character
of personal injury. For eg. – In motor accident cases, award
under tab for loss of future income, medical expenses etc. are
exclusive to personal injury. Hence, such claims can be
protected from the rigor of Section 306 of 1925 Act.
On death of opposite party (medical professional/doctor)
Interpretation A – If ‘loss to estate’ is not reckoned as a claim for
‘personal injury’, at least this claim can survive even on the doctor’s

death, against his estate.
14

- Claim for loss of estate stand on a different footing from
personal injury. Such claim represents quantifiable economic
loss and does not fall within exception enumerated in Section
306 of 1925 Act.
- The Parliament did not provide for mandatory abatement of
proceedings in case of death of opposite party. Had it been the
intention, it would have provided an express provision in the
1986 Act or the 2019 Act. Rather, Order XXII of CPC has been
made applicable to ensure proceedings are continued in such
cases.
Interpretation B – Even a claim for ‘personal injury’ could be
sustainable against the estate of the deceased doctor.
a. An interpretation that avoids anomalous or irrational
consequences is to be preferred.
- Any construction that would permit consumer to establish
negligence and recover secondary loss as a consequence
thereof, though bar him from recovering the primary loss
because of injury suffered due to same, would lead to a
situation where principal wrong itself is rendered illegally
irrelevant solely because the wrongdoer has died.

15

- Such interpretation of the maxim ‘actio personalis moritur cum
persona’ defeats the very purpose of 1986 Act/2019 Act, which
is a beneficial legislation.

- This anomaly has been criticized by the Law Commission of
th
India in its 178 Report, deprecating the mechanical
application of this maxim being inconsistent with the modern
social jurisprudence and also by the Haryana Law Commission
th
in its 8 Report.
b. Comparative common law as a persuasive interpretative tool.
- The maxim finds statutory expression in Section 306 of Indian
Succession Act, 1925 and is a doctrine of common-law origin
traceable to English Law.
- United Kingdom by enacting Law Reform (Miscellaneous
Provisions) Act, 1934, abrogated the principle that personal
causes of action perish with the person. Other jurisdictions
have followed.
c. Section 13(7) of 1986 Act and Section 38(12) of the 2019 Act will
not be rendered otiose.
- The above interpretations do not violence the text of Section
13(7) of 1986 Act and 38(12) of 2019 Act, which mandate
16

recourse to Order XXII of CPC in case of death of a party
including opposite party.
- What is urged is a relief specific inquiry into survivability, fully
consistent with the aforesaid Order, not confined to monetary
compensation, but also include directions for performance of
specific obligations including removal of defects or any other
acts incapable of being carried out after death of opposite party.
Suggestions
On death of the opposite party (medical professional/doctor)
a. Upon the death of the medical professional, claims for
compensation arising out of medical negligence, including claims
for person Upon the death of the medical professional, claims for
compensation arising out of medical negligence, including claims
for personal injury suffered by a consumer, ought to survive
against the estate of the deceased. The Consumer Protection Act,
being a special, beneficial and subsequent legislation, must
govern the field in preference to the general provisions of the
Indian Succession Act, 1925.
b. In the alternative, even if claims for personal injury are not held
to survive in their entirety, claims for loss to estate of the
17

complainant must, in any event, be held maintainable against
the estate of the deceased doctor. Loss to estate constitutes a
distinct and independent head of claim, representing
compensatory civil liability rather than a personal cause of
action, and therefore survives even on a strict construction of
Section 306 of the Indian Succession Act, 1925. al injury suffered
by a consumer, ought to survive against the estate of the
deceased. The Consumer Protection Act, being a special,
beneficial and subsequent legislation, must govern the field in
preference to the general provisions of the Indian Succession Act,
1925.
On death of the consumer/complainant
a. All claims maintainable under the Consumer Protection Act,
including claims involving personal injury, may be permitted to
survive at the instance of the legal representatives. Such
survivability flows from the inclusive definition of ‘complainant’
under the Consumer Protection Act and the legislative intent to
treat consumer grievances as statutory rights rather than purely
personal torts. The Consumer Protection Act, being a special and
subsequent legislation, must govern the field in preference to the
general provisions of the Indian Succession Act, 1925. Concerns
18

of unjust enrichment by the kin of the deceased
consumer/complainant can be adequately addressed through
moderation of quantum, particularly in respect of non-pecuniary
heads, consistent with the principle if just compensation.
b. In the alternative, and at the very least, claims representing loss
to estate, such as medical expenses incurred, loss of income
during the lifetime of the consumer, or other pecuniary loss, must
necessarily survive. Even on a restrictive application of Section
306 of the Indian Succession Act, 1925 such claims do not fall
within the exception relating to personal injury and are
transmissible to the legal representatives.
ANALYSIS AND FINDINGS
22. We have heard the learned counsel for the parties, the
intervenor, and learned amicus curiae at considerable length. It is
an exceptional case indeed in the sense that in spite of the best
assistance of the amicus , this Court had to indulge in legal
research to dredge out older statutory provisions which may seek
to answer this issue. However, the law seems to have been lost to
the pages of history due to less tort actions being litigated in India.
In posterity, this case may be lesson to the students and
19

stakeholders, to have a strong emphasis on legal history and
jurisprudence.
23. Upon a careful consideration of the submissions advanced,
the material placed on record, and the applicable legal framework,
the question that arises for our consideration is –
“Whether, upon death of the doctor during pendency of proceedings
at appellate stage, the legal heirs can be impleaded and held liable
for the alleged act of medical negligence of the deceased doctor? If
yes, to what extent?”
24. Aforesaid question assumes importance as the implication of
the holdings in this case also applies to numerous types of tortious
claims, including personal injuries which does not amount to
death, including motor vehicle accidents, and other industrial
accidents. In this context, we only state the principle of law as
applicable, without considering any additional policy
consideration which may be relevant to be considered elsewhere
under different enactments.

25. Before we advert to the merits of the submissions, it is
necessary to first understand the legal landscape. At the outset it
becomes imperative to refer to common law maxim
‘actio
personalis moritur cum persona’, which translates to ‘a personal
20

right of action dies with the person’ . This maxim was entrenched in
th 20
the common law at least since 15 century. Percy H. Winfield has
written greatly about the evolution of this principle in common law
as having dark corners.
26. English law, in light of societal changes, identified early on
21
the need and necessity to create exceptions. In Hambly v. Trott ,
a simple case wherein defendant had wrongfully converted and
used the Plaintiff’s sheep (a tort of conversion/trespass), while
deciding the liability of defendant’s executor/estate, Lord
Mansfield observed –
“ …The maxim, actio personalis moritur cum persona, upon
which the objection is founded, not being generally true, and
much less universally so, leaves the law undefined as to
the kind of personal actions which die with the
person, or survive against the executor …..
…… Here therefore is a fundamental distinction. If it is a
sort of injury by which the offender acquires no gain to
himself at the expense of the sufferer, as beating or
imprisoning a man, &c. there, the person injured has only a
reparation for the delictum in damages to be assessed by a
jury. But where, besides the crime, property is acquired
which benefits the testator, there an action for the value of
the property shall survive against the executor. As for
instance, the executor shall not be chargeable for the injury
done by his testator in cutting clown another man's trees,
but for the benefit arising to his testator for the value or sale
of the trees he shall.

20
Percy H. Winfield, ‘Death as Affecting Liability in Tort’, Columbia Law Review, Vol. 29, No.
3 (Mar., 1929), pp. 239-254]
21
1776 1 COWP 371
21

So far as the tort itself goes, an executor shall not be liable;
and therefore it is, that all public and all private crimes die
with the offender, and the executor is not chargeable; but so
far as the act of the offender is beneficial, his assets ought
to be answerable; and his executor therefore shall be
charged…………
(emphasis supplied)
This case clearly demarcated that death although ends
personal liability for torts, however, any advantage gained by the
defendant therein is answerable by the successor interest in the
property.
27. The maxim which means ‘a personal claim dies with the
person’ was a general rule applicable to torts and prevents
representatives of the deceased from suing in his right for the
suffering and pecuniary loss caused to the deceased during his
lifetime by reason of the injury of which the deceased ultimately
died. The result was that the person who caused the death of other
cannot be sued in tort, though if death had not been caused but
only injury had been caused, the injured would be entitled to sue
and recover damages for the tortious act.
28. An Act of 1330 (4 Ed. III, c. 7) as amended by an Act of 1351-
1352 (25 Ed. III, st. 5, c. 5.), enabled the personal representatives
to sue for any injury done to the personal estate of one since
deceased. The Civil Procedure Act, 1833, filled up most of the gaps
22

left by the Act of 1330, at any rate so far as injuries to property
were concerned. Its’ provisions on this point were embodied under
the Administration of Estates Act, 1925. Under the aforesaid
enactment, the personal representatives could maintain for any
injury committed to the real estate of the deceased, within six
months before his death, any action which the deceased himself
could have maintained, but the action had to be brought within
one year after his death. Further, an action might be maintained
against the personal representative of a deceased person for any
wrong committed by the deceased within six months before his
death, to another person’s real or personal property, but the action
had to be brought within six months after the personal
22
representative had taken out representation. Various other
enactments have created exceptions, which are Fatal Accidents
Act, 1864, Employer’s Liability Act (43 and 44 Vict., c.42),
Workman’s Compensation Act, 1897 (60 and 61 Vic., c.37),
Workman’s Compensation Act, 1906 (6 Edw. VII, C. 58).

29. The position at one point in England was ‘it was cheaper to
kill than to maim or cripple’ . The above unsatisfactory state of law

23

in England was overcome by the passing of the Fatal Accidents Act,
1846, which is commonly known as Lord Campbell’s Act and
English Law Reform (Miscellaneous Provisions) Act 1935.

30. First set of statutory exception was carved under Fatal

Accidents Act, 1846 (Lord Campbell Act). The English enactment,
was adopted into India in 1855, giving a ‘right to sue’ to certain
relative consequent upon the death of another as the result of a
tort, providing the deceased would have been able to sue in person
had he survived. This act survives in India even today, albeit in
limited context wherein the right to sue for Plaintiff is preserved
through statutory exceptions, when fatal accidents occur.
23
31. In Phillips v. Homfray , Lord Bowen who delivered the
judgment of Lord Justice Cotton and himself deals fully with the
application of the maxim and its limitations. He observes as thus
(at page 454) –
“ The only case in which, apart from the question of breach
of contract express or implied, a remedy for a wrongful act
can be pursued against the estate of a deceased person
who has done the act, appears to be those in which property
or the proceeds or value of property belonging to another
have been appropriated by a deceased person and added
”
to his own estate or moneys.

23
(1883) 24 Ch.D., 439
24

32. Further under English law, second set of exception for other
tortious claims other than fatal accidents were created with the
introduction of the English Law Reform (Miscellaneous Provisions)
Act 1935, which allowed actions to be brought on behalf of a
deceased plaintiff or against the estate of a deceased defendant. It
may be beneficial herein to note certain provisions of the English
Law Reform (Miscellaneous Provisions) Act 1935. Section 1(1) of
the aforesaid Act, states as under-
“1. Effect of death on certain causes of action.
(1) Subject to the provisions of this section, on the
death of any person after the commencement of this Act 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. Provided that this subsection shall not apply to
causes of action for defamation.
1A) The right of a person to claim under section 1A of
the Fatal Accidents Act 1976 (bereavement) shall not
survive for the benefit of his estate on his death. ]
(2) Where a cause of action survives as aforesaid for
the benefit of the estate of a deceased person, the damages
recoverable for the benefit of the estate of that person—
[ (a) shall not include—
(i) any exemplary damages;
(ii) any damages for loss of income in respect of
any period after that person’s death; ]
(b). . . . . .
(c) Where the death of that person has been caused
by the act or omission which gives rise to the cause
of action, shall be calculated without reference to
any loss or gain to his estate consequent on his
death, except that a sum in respect of funeral
expenses may be included.
(3). . . …
25

(4) Where damage has been suffered by reason of any
act or omission in respect of which a cause of action would
have subsisted against any person if that person had not
died before or at the same time as the damage was
suffered, there shall be deemed, for the purposes of this Act,
to have been subsisting against him before his death such
cause of action in respect of that act or omission as would
have subsisted if he had died after the damage was
suffered.
(5) The rights conferred by this Act for the benefit of
the estates of deceased persons shall be in addition to and
not in derogation of any rights conferred on the dependants
of deceased persons by the Fatal Accidents Acts 1846 to
1908, . . . .. and so much of this Act as relates to causes of
action against the estates of deceased persons shall apply
in relation to causes of action under the said Acts as it
applies in relation to other causes of action not expressly
excepted from the operation of subsection (1) of this section.
(6) In the event of the insolvency of an estate against
which proceedings are maintainable by virtue of this
section, any liability in respect of the cause of action in
respect of which the proceedings are maintainable shall be
deemed to be a debt provable in the administration of the
estate, notwithstanding that it is a demand in the nature of
unliquidated damages arising otherwise than by a contract,
promise or breach of trust.
The position of the earlier quoted maxim in England is
presently largely academic, since the question of survival of cause
of action is almost entirely governed by statute. Under Section 1(1)
of the above enactment, all such cause of action, including an
entirely ‘personal’ ones such as claim for damages for pain and
suffering, survive in favor or against deceased person’s estate
provided they are vested in it at the time of death. As apparent
from the reading of the above provision, there are four statutory
26

exceptions: the estate cannot sue for damages for defamation,
bereavement, prospective income which the deceased would have
earned after his death, or for any sum by way of punitive damages.
For the present purpose, we may not be required to go much into
the English law.
33. However, India took a different turn in this regard. We will
come back to adumbrating the Indian substantive law after
referring to the procedural law involved is this issue and how the
same has to be interpreted supporting the substantive law as it
exists presently.

34. In the present case, the proceedings were initiated under the
1986 Act, which was in operation on the date of death of opposite
party – Dr. Lall, who passed away on 04.08.2009. There is no
gainsaying that the nature of proceedings initiated against Dr. Lall
is a tortious claim for negligence by a doctor in treating a patient.
The 1986 Act does not define ‘opposite party’, however Section 13
deals with the ‘procedure on the receipt of complaint’. As the
Marginal note suggests, Section 13 prescribes procedural
prescriptions. Sub-section (7) thereof caters to the exigencies
incase where death of the consumer/complainant or the opposite
27

party takes places. The said Section is relevant and hence
reproduced below for ready reference –
“13. Procedure on receipt of complaint
(1) The District Forum shall, on receipt of a complaint,
if it relates to any goods –
(a) refer a copy of the complaint to the opposite party
mentioned in the complaint directing him to give his version
of the case within a period of thirty days or such extended
period not exceeding fifteen days as may be granted by the
District Forum;
(b) where the opposite party on receipt of a complaint
referred to him under clause (a) denies or disputes the
allegations contained in the complaint, or omits or fails to
take any action to represent his case within the time given
by the District Forum, the District Forum shall proceed to
settle the consumer dispute in the manner specified in
clauses (c) to (g);
xx xx xx
event of death of a complainant who is
(7) In the
a consumer or of the opposite party against whom the
complaint has been filed, the provisions of Order XXII
of the First Schedule to the Code of Civil Procedure,
1908 (5 of 1908) shall apply subject to the modification
that every reference therein to the plaintiff and the
defendant shall be construed as reference to a complainant
or the opposite party, as case may be.) ”

35. Bare reading of sub-section (7) reveals that in event of death
of either consumer/complainant or the opposite party, Order XXII
of the First Schedule to CPC shall apply. Order XXII of CPC deals
with ‘Death, Marriage and Insolvency of Parties’, rules whereof, in
28

particular Rule 2, 4 and 11 are relevant and are reproduced
hereinunder –
“2. Procedure where one of several plaintiffs or
defendants dies and right to sue survives —
Where there are more plaintiffs or defendants than one, and
any of them dies, and where the right to sue survives to the
surviving plaintiff or plaintiffs alone, or against the
surviving defendant or defendants alone, the Court shall
cause an entry to the effect to be made on the record, and
the suit shall proceed at the instance of the surviving
plaintiff or plaintiffs, or against the surviving defendant or
defendants.
xx xx xx
4. Procedure in case of death of one of several
defendants or of sole defendant —
(1) Where one of two or more defendants dies and the
right to sue does not survive against the surviving
defendant or defendants alone or a sole defendant or sole
surviving defendant dies and the right to sue survives,
the Court, on an application made in that behalf,
shall cause the legal representative of the deceased
defendants to be made a party and shall proceed with
the suit .
(2) Any person so made a party may make any
defence appropriate to his character as legal
representative of the deceased defendant.
(3) Where within the time limited by law no application
is made under sub-rule (1), the suit shall abate as against
the deceased defendant.
(4) The Court whenever it thinks fit, may exempt the
plaintiff from the necessity of substituting the legal
representatives of any such defendant who has failed to file
a written statement or who, having filed it, has failed to
appear and contest the suit at the hearing; and judgment
may, in such case, be pronounced against the said
defendant notwithstanding the death of such defendant
and shall have the same force and effect as if it has been
pronounced before death took place.
29

(5) Where—
(a) the plaintiff was ignorant of the death of a
defendant, and could not, for that reason,
make an application for the substitution of
the legal representative of the defendant
under this rule within the period specified in
the Limitation Act, 1963 (36 of 1963), and
the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the
period specified therefore in the Limitation
Act, 1963 (36 of 1963), for setting aside the
abatement and also for the admission of that
application under section 5 of that Act on the
ground that he had, by reason of such
ignorance, sufficient cause for not making
the application with the period specified in
the said Act,
the Court shall, in considering the application under the said
section 5, have due regard to the fact of such ignorance, if
proved.]
xx xx xx
11. Application of Order to appeals —
In the application of this Order to appeals, so far as may be, the
word “Plaintiff” shall be held to include an appellant, the word
“defendant” a respondent, and the word “suit” an appeal. ”
36. Rule 2 deals with a situation where one of the several
plaintiffs or defendants dies and the right to sue survives to the
remaining plaintiffs or against the surviving defendants alone. In
such a case, no substitution of legal representatives is necessary,
and the suit continues at the instance of or against the surviving
parties. There is no abatement of the suit falling under this Rule.

37. On the other hand, Rule 4 addresses the situation where the
sole defendant, or one of several defendants, dies and the right to
30

sue survives only against the deceased defendant and not against
the surviving defendants alone. In such a case, the suit cannot
proceed against a dead person. Therefore, in terms of this Rule,
the legal representatives of the deceased defendant must be
brought on record, which must be effected through an application
made in that behalf within the prescribed limitation. Upon such
application being allowed and the legal representatives being
impleaded, the Court shall proceed with the suit as if the legal
representatives had originally been parties. However, if no such
application is made within the limitation period, the suit abates as
against the deceased defendant.
38. Rule 11 makes it clear that Order XXII is applicable to
appeals also.
39. Thus, the position which emerges on combined reading of
Rule 2 and Rule 4 is that the continuation of a suit/proceedings
upon the death of a party fundamentally depends on whether the
right to sue survives or not. When we speak of ‘right to sue/cause
of action’ we speak of substantive law, as opposed to procedural
aspects.
40. On a comparative reading of 1986 Act with 2019 Act, it is
worthwhile to state that the procedure prescribed under Section
31

13(7) of the 1986 Act has been continued under Section 38(12) of
the 2019 Act. Insofar as ‘complainant’ is concerned, as per Section
2(b)(v) of the 1986 Act, a ‘complainant’ means his legal heir or legal
representative in case of his death. Similarly, in 2019 Act, the
same definition has been carried under Section 2(5)(vi) of
complainant. By expressly providing for legal representative for
complainant/consumer, the legislative intent is clear, i.e., the
claim of the complainant shall not automatically perish upon his
death and shall survive through his legal heirs.
41. Classic definition of ‘cause of action’ is given by Brett J in
24
Cooke v Gill , as ‘every fact which is material to be proved to
entitle the plaintiff to succeed’ , and by Diplock LJ in Letang v
25
Cooper , as ‘simply a factual situation the existence of which
entitles one person to obtain from the court a remedy against
another person’ . ‘Right to sue’ ordinarily means the right to seek
relief by means of legal proceedings. The right accrues only when
the cause of action arises, that is, the right to prosecute to obtain
26
relief by legal means . In Indian Evangelical Lutheran Church

24
(1873) LR 8 CP 107 – Pg. 116.
25
[1965] 1 QB 232 – Pg. 242- 243.
26
State of Punjab Vs. Gurdev Singh, (1991) 4 SCC 1
32

27
Trust Association vs. Sri Bala & Co. , this Court observed that
–
“ 9.8 ….…Thus, “right to sue” means the right to seek relief
by means of legal procedure when the person suing has a
substantive and exclusive right to the claim asserted by him
and there is an invasion of it or a threat of invasion. When
the right to sue accrues, depends, to a large extent on the
facts and circumstances of a particular case keeping in view
the relief sought. It accrues only when a cause of action
arises and for a cause of action to arise, it must be clear that
the averments in the plaint, if found correct, should lead to
a successful issue. The use of the phrase “right to sue”
is synonymous with the phrase “cause of action” and
would be in consonance when one uses the word
“arises” or “accrues” with it .
(emphasis supplied)
42. Cause of action means every fact which would be necessary
for the plaintiff to prove, if traversed, in order to support his right
to judgment. It consists of a bundle of material facts, which are
necessary for the plaintiff to prove in order to entitle him to the
28
reliefs claimed in the suit.
43. In the said context, to ascertain whether right to sue survives
in favour of legal representatives of complainant or opposite party,
in cases of medical negligence, we need to adumbrate the
substantive law as it exists in India and its legal history.

27
2025 INSC 42
28
Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) dead through legal
representatives , (2020) 7 SCC 366, (Para 24)
33

44. For torts/accidents which caused death, the Indian Fatal
Accidents Act (XIII of 1855) followed the above English Act of 1846.
Under Section 1-A of the Fatal Accidents Act, a new right is created
in favour of certain dependants who are named therein, to
maintain an action or suit for damages in respect of the death of a
person. The dependants for whose benefit an action can be
maintained under Section 1-A of the Act are the wife, husband,
parents (which term includes not only father and mother but also
grandfather and grandmother) and child (which term includes not
only son and daughter but also grandson and grand-daughter and
step-son and step-daughter). For those torts and liabilities which
did not cause death, however the plaintiff passed away
independently, the Legal Representatives' Suits Act of 1855 was
passed. It may not be out of context to note that the Indian Fatal
Accidents Act and the Legal Representatives' Suits Act of 1855
came into force on one and the same date, viz., 27th March, 1855.
45. The Legal Representatives’ Suits Act enacted in India in the
year 1855 (Act XII of 1855), is in existence as to this date. It is
absolutely necessary to have a look at provisions of this Act –
“1. Executors may sue and be sued in certain cases
for wrongs committed in lifetime of deceased.
34

An action may be maintained by the executors,
administrators or representatives of any person deceased,
for any wrong committed in the time of such person, which
has occasioned pecuniary loss to his estate, for which
wrong an action might have been maintained by such
person, so as such wrong shall have been committed within
1
one year before his death ; and the damages, when *
recovered, shall be part of the personal estate of such
person;
and further, an action may be maintained against the
executors or administrators or heirs or representatives of
any person deceased for any wrong committed by him in
his lifetime for which he would have been subject to an
action, so as such wrong shall have been committed within
2
one year before such person's death and the damages *
to be recovered in such action shall, if recovered against an
executor or administrator bound to administer according to
the English law, be payable in like order of administration
as the simple contract debts of such person.
2. Death of either party not to abate suit. Proviso. —
No action commenced under the provisions of this Act shall
abate by reason of the death of either party, but the same
may be continued by or against the executors,
administrators or representatives of the party deceased:
Provided that, in any case in which any such action shall
be continued against the executors, administrators or
representatives of a deceased party, such executors,
administrators or representatives may set up a want of
assets as a defence to the action, either wholly or in part, in
the same manner as if the action had been originally
commenced against them.
These provisions are applicable to institution of suits filed
under the aforesaid enactment, by legal representatives etc., after
the death of a person. It is clear that only suits for damages
concerning pecuniary loss of estate can be maintained by legal
representative, for any wrong committed by him within one year
35

before the death of such person. Before the enactment of the Legal
Representatives’ Suits Act, such right to loss of estate died with
the wronged and the same did not survive to the executors,
administrators or representatives of the deceased. After the
passing of the said Act, the executors or administrators or
representatives of the deceased, as the case may be, can maintain
a suit for loss of estate of the deceased. However, death of
defendant/tortfeasor has been dealt differently, wherein any
action or claim is maintainable against the legal representative,
provided the wrong is committed within one year before the death.

46. The remedy provided under the Legal Representatives’ Suits
Act 1855 is, however, confined to suits brought subsequent to the
death of the person, and did not enable suits brought by him to be
continued after his death. In Haridas Ramdas v. Ramdas
29
Mathuradas , the plaintiffs therein sued to recover damages for
wrongful arrest and malicious prosecution. The defendant died
pending suit and the plaintiff sought to continue the suit against
the executors of the deceased or his legal representatives. The
objection taken was that the suit abated. It was held by Haridas
and Parsens, JJ., that Legal Representatives’ Suits Act, 1855 did

29
(1889) I.L.R., 13 Bom., 677
36

not apply as it related only to suits brought against the heirs of a
deceased person for wrongs committed by him in his lifetime.
47. Though the legislature went much further than the English
Act of 1833 when it enacted Clause (2) of Section 1 of Legal
Representatives’ Suits Act, 1855 and gave a fresh right of suit, it
confined demands and rights to prosecute or defend suits or
special proceedings by executors or administrators in the
Succession Act of 1865 to suits other than personal injuries not
causing the death of the party, and also cases where the death of
the party rendered the granting of any relief useless. As the
Succession Act did not apply to Hindus, Muhammadans or
Buddhists, a similar provision was also enacted in the Probate and
Administration Act 1881, in particular Section 89, which runs as
follows –
“ All demands whatever and all rights to prosecute
or defend any suit or other proceeding existing in
favour of or against a person at the time of his
decease survive to and against his executors or
administrators except causes of action for
defamation, assault as defined in the Indian Penal
Code or other personal injuries not causing the
death of the party and except also cases when after
the death of the party the relief sought could not be
”
enjoyed or granting it would be nugatory.
48. As noted above, Section 306 of 1925 Act, is not a new
provision and has been in the statute books of India under
37

different legislation at least since 1865 (See Indian Succession Act,
1865, Section 268 later under Section 89 of Probate and
Administration Act of 1881 (applicable to Hindus, Buddhists etc.).
These earlier enactments were consolidated during colonial period
and 1925 Act was enacted, which is applicable herein. Presently,
Section 306 of 1925 Act can be profitably referred herein –
“306. Demands and rights of action of or against
deceased survive to and against executor or
administrator.—
All demands whatsoever and all rights to prosecute or
defend any action or special proceeding existing in favour of
or against a person at the time of his decease, survive to
and against his executors or administrators; except causes
of action for defamation, assault, as defined in the Indian
Penal Code, 1860 (45 of 1860) or other personal injuries not
causing the death of the party; and except also cases
where, after the death of the party, the relief sought could
not be enjoyed or granting it would be nugatory.
Illustrations
(i) A collision takes place on a railway in consequence of
some neglect or default of an official, and a passenger is
severely hurt, but not so as to cause death. He afterwards
dies without having brought any action. The cause of action
does not survive.
(ii) A sues for divorce. A dies. The cause of action does not
survive to his representative. ”
The aforesaid section inter-alia provides that all rights to
prosecute any action or special proceeding existing in favour of a
person at the time of his death, survive to his executors or
administrators except cause of action for personal injuries not
38

causing death of the party. Thus, under Section 306, the
executor/administrator of a deceased will have a right to prosecute
or continue any action or special proceeding existing in favour of
the deceased at the time of his death, except causes of action for
personal injury not causing death of an party.
49. While commenting on Section 268 of Indian Succession Act,
1865 which is similar to Section 306 of 1925 Act, Whitley Stokes,
30
observed in his commentary as under-
“This is nearly the English law as to personal injuries.
But the Indian Act goes further. By English law actions
founded on what are technically called wrongs to the
freehold do not survive except in the cases mentioned in 3
& 4 Will. IV, c. 42, s. 2 — Act XII of 1855, sec. 1, Wm. Exor.
707. But it is clear that this section extends to such
injuries, and that an executor or administrator may,
for example, bring a suit for diverting a watercourse,
obstructing lights or cutting down trees in the lifetime
of his testator or intestate.
Personal injuries not causing the death of the party. — If
they do cause his death, where the deceased could have
maintained the action, if alive, a suit for damages may be
brought under Act No. XII of 1855 (“An Act to provide
compensation to families for loss occasioned by the death of
a person caused by actionable wrong”). This Act is the
English Statute 9 & 10 Vic., cap. 93 (Lord Campbell’s Act),
with the additional provision that in any such suit “ the
executor, administrator or representative of the
deceased may insert a claim for, and recover any
pecuniary loss to the estate of the deceased caused by
the wrongful act, neglect or default; which sum, when

30
Whitley Stokes, Commentary on Indian Succession Act, 1865, R. C. Lepage and Co., pg.
170.
39

recovered, shall be deemed part of the assets of the
deceased. ” See Acts XII and XIII of 1855 in the Appendix. ”
(emphasis supplied)
50. On the similar lines, Mahendra Chandra Majumdhar,
interprets Section 268 of Indian Succession Act in his
31
commentary in the following manner –
“ 5. Except causes of action for defamation, & c . – It
will appear from the above that an executor or administrator
can maintain an action in his representative character only
in cases where the estate of the deceased suffers any loss
on account of the wrongful act committed by another during
his lifetime. Therefore, where the wrong or injury is merely
a personal one, as in the case of defamation or assault, &c.,
and no pecuniary loss has been occasioned to the estate of
the deceased, no action is maintainable after the death of
such deceased. In such cases, the rule of law, embodied in
the maxim Actio personalis moritur cum persona (a
personal right of action dies with the person) shall evidently
apply, subject to the modifications effected by the above-
mentioned Acts. This rule is, that, if any injury is done by
one person either to the person or property of another for
which damages only is recoverable in satisfaction, the
action dies with the person by whom the wrong is
committed. Thus, an action for deceit will not lie against the
representatives of a person who has fraudulently induced
another to take shares in a company [Peek v. Gurney L. R.
6 H. L. 377] or even to purchase shares from the deceased
himself [Re Duncan; Tervy v. Sweeting, (1899) 1 Ch. 387].
“Executors and administrators are the representatives of
the temporal property, that is, the debts and goods of the
deceased but not of their wrongs, except where those
wrongs operate to the temporal injury of their personal
estate” [Lord Ellenborough in Chamberlain v. Williamson, 2
М. 408. But this rule "was never extended to such personal
actions as were founded upon any obligation contract, debt,

31
Mahendra Chandra Majumdhar , M. Krishnamachariar (eds.), The Indian Succession Act
(Act X of 1865) with elaborated notes and commentaries, p. 909-910.
40

covenant or any other duty to be performed; for, there, the
action survived.” [Davies v. Hood 88 L. J. 19]. … ”
51. Coming back to Section 306 of the 1925 Act, the fundamental
principle enshrined under the above provision is that all rights and
liabilities to maintain a suit succeed the death of a person and can
be foisted on his successors. To this rule, exceptions are craved
out namely, cause of action for defamation, assault and other
personal injuries not causing death; or cause of action wherein
relief cannot be enjoyed by the deceased or is nugatory. What
requires our attention is the first set of exceptions, which needs to
be interpreted herein.
52. While interpreting mutatis mutandis exception provided
under Section 89 of Probate and Administration Act, 1881, a full
bench of the Madras High Court in Rustomji Dorabji vs W.H.
32
Nurse . , held that –
“ 16. It cannot be said that when the legislature enacted
the Succession Act of 1865 or the Probate and
Administration Act of 1881 it had not before it the earlier
enactment, Act XII of 1855. Though there was no exception
as regards causes of action in Section 1, Clause 2, of the Act
of 1855 which would cover suits excepted by the Acts of
1865 and 1881 it was thought necessary to make some
exceptions in the latter Acts. It would be unreasonable to
suppose that the legislature out of the large number of
personal injuries actionable in law made a random selection
of defamation on the one side and assault and other

32
AIR 1921 Mad 1
41

physical injuries not resulting in death on the other, and left
several personal wrongs more serious than simple assault
unprovided for. If the words “other personal injuries not
causing the death of the party” be read ejusdem generis
only with assault the executors or administrators of a
person who wrongfully restrains another (without
assaulting him) for a few minutes would be liable to be
proceeded against in the suit while those of one who
committed grievous bodily harm not severe enough to cause
death would escape. It should be remembered that assault
as defined in the Indian Penal Code includes the most trivial
forms of personal violence and no reasonable explanation
can be given for the legislature picking out some offences
and excluding others, some of which are of a serious nature.
It would have been easy to use the word physical injuries
instead of the word personal injuries or to add the word
“and” before assault, if only acts of personal violence were
intended to be excluded.
17. The words “personal injuries” represent a classification
well known to law and in ordinary legal phraseology are not
confined, to merely physical injuries. Blackstone in dealing
with private wrongs observes:
Personal acts are such whereby a man claims a debt or
personal duty or damages in lieu thereof and likewise
whereby a man claims a satisfaction in damages for some
injury done to his person or property. The former are said to
be founded on contracts and the latter upon torts or wrongs.
Of the former nature are all actions upon debt or promises;
of the latter all actions for trespass, nuisances, assaults,
defamatory words and the like.
18. He then proceeds to deal with injuries which affect the
personal security of individuals and divides them into
injuries against their lives, their limbs, their bodies, their
health or their reputation, and in the last class includes both
defamation, and malicious prosecution (Bk. III, Clause 8).
He divides all injuries into injuries without force or violence,
as slander, and others coupled with force or violence, as
batteries. As pointed out by Pollock and Maitland in the
History of the English Law and by Street in his work on the
Foundations of Legal Liability (Volume 1, page 327)
malicious prosecution was regarded only as an aggravated
form of defamation.
42

19. Bearing in mind this classification and having
regard to the fact that in the English Civil Procedure
Act of 1883 the remedy was confined to injuries to the
real or personal estate of the deceased and not to
purely personal wrongs as understood in English
Jurisprudence, and that the same limitation is placed
by Section 1, Clause 1, of Act XII of 1855, and the
anomalies that would result if the legislature picked
out arbitrarily some personal wrongs and excluded
them and desired to include at the same time wrongs
of a much less serious character, I think the intention
of the legislature in 1865 and 1881, when the
Succession and the Probate and Administration Acts
were passed, was to assimilate the law in India as far
as possible to what it was in England and to exclude
from the operation of Sections 268 of the Succession
Act and 89 of the Probate and Administration
Act suits which by the law as administered in
England would fall under the maxim actio personalis
moritur cum persona. If the words were simply "all
personal injuries not causing the death of the party"
and omitted defamation or assault, it may be argued
that personal meant only physical and that causes of
action for defamation and other similar injuries
survived . The legislature took two types of personal
injuries, one physical and the other not, and used
them by way of illustration of what it meant to
exclude. In this view, the words “other personal
injuries not causing the death of the party” must be
read with “defamation” and “assault” .
(Emphasis supplied)
From the above it is clear that the exceptions adumbrated have to
be taken as species mentioned therein.
43

53. In Melepurth Sankunni Ezhuthassan v. Thekittil
33
Geopalankutty Nair , this Court while interpreting Section 306
of 1925 Act, held as under –
“7. Where a suit for defamation is dismissed and the
plaintiff has filed an appeal, what the appellant-plaintiff is
seeking to enforce in the appeal is his right to sue for
damages for defamation and as this right does not survive
his death, his legal representative has no right to be brought
on the record of the appeal in his place and stead if the
appellant dies during the pendency of the appeal. The
position, however, is different where a suit for defamation
has resulted in a decree in favour of the plaintiff because in
such a case the cause of action has merged in the decree
and the decretal debt forms part of his estate and the
appeal from the decree by the defendant becomes a
question of benefit or detriment to the estate of the plaintiff
respondent which his legal representative is entitled to
uphold and defend and is, therefore, entitled to be
substituted in place of the deceased respondent plaintiff.
8. Section 306 further speaks only of executors and
administrators but on principle the same position must
necessarily prevail in the case of other legal
representatives, for such legal representatives cannot in
law be in better or worse position than executors and
administrators and what applies to executors and
administrators will apply to other legal representatives also.
9. The position, therefore, is that had the appellant died
during the pendency of his suit, the suit would have abated.
Had he died during the pendency of the appeal filed by him
in the district court, the appeal would have equally abated
because his suit had been dismissed by the trial court. Had
he, however, died during the pendency of the second appeal
filed by the respondent in the High Court, the appeal would
not have abated because he had succeeded in the first
appeal and his suit had been decreed. As however, the High
Court allowed the second appeal and dismissed the suit,
the present appeal by special leave must abate because

33
(1986) 1 SCC 118
44

what the appellant was seeking in this appeal was to
enforce his right to sue for damages for defamation. This
right did not survive his death and accordingly the appeal
abated automatically on his death and his legal
representatives acquired no right in law to be brought on the
record in his place and stead.
We must note that this Court was confined with the question
of defamation, which usually is a personal action and does not give
rise to claims based on pecuniary damages to estate of the
deceased. As a caveat, this Court has to be cognizant of a situation
wherein monitory loss may occur to estate from an reputational
loss. Therefore, the ratio in the above case has to be narrowly
confined to cases of purely personal claims arising out of
defamation which abates on the death in terms of Section 306 of
the Indian Succession Act, 1925.
34
54. In M Veerappa v. Evelyn Sequeira , this Court was
concerned with a suit to seek damages for professional negligence
against a lawyer for filing a Special Leave Petition with
considerable delay. It is during the pendency of the suit that the
original plaintiff passed away. The defendant therein opposed the
suit on the maxim actio personalis cum moritur persona . While

34
(1988) 1 SCC 556
45

dismissing the appeal of the plaintiff therein, it was observed as
under –
“10. The maxim “actio personalis cum moritur persona” has
been applied not only to those cases where a plaintiff dies
during the pendency of a suit filed by him for damages for
personal injuries sustained by him but also to cases where
a plaintiff dies during the pendency of an appeal to the
appellate court, be it the first appellate court or the second
appellate court against the dismissal of the suit by the trial
court and/or the first appellate court as the case may be.
This is on the footing that by reason of the dismissal of the
suit by the trial court or the first appellate court as the case
may be, the plaintiff stands relegated to his original position
before the trial court. Vide the decisions in Punjab
Singh v. Ramautar Singh [AIR 1920 Pat 841 : (1919) 4 Pat
LJ 676], Irulappa v. Madhava [(1916) 31 MLJ
772] Maniramlala v. Chattibai [AIR 1937 Nag 216 : ILR
1938 Nag 280] , Baboolal v. Ramlal [AIR 1952 Nag 408]
and Melepurath Shankunni Ezhuthassan v. Thekittil
Geopalankutty [(1986) 1 SCC 118 : AIR 1986 SC 411] .
In Palaniappa Chettiar v. Rajah of Ramnad [ILR 49 Mad
208], and Motilal v. Harnarayan [AIR 1923 Bom 408 : 25
Bom LR 435 : ILR 47 Bom 716] it was held that a suit or an
action which has abated cannot be continued thereafter
even for the limited purpose of recovering the costs suffered
by the injured party. The maxim of actio personalis cum
moritur persona has been held inapplicable only in those
cases where the injury caused to the deceased person has
tangibly affected his estate or has caused an accretion to
the estate of the wrong-doer vide Rustomji Dorabji v. W.H.
Nurse [ILR 44 Mad 357] and Ratanlal v. Baboolal [AIR 1960
MP 200] as well as in those cases where a suit for damages
for defamation, assault or other personal injuries sustained
by the plaintiff had resulted in a decree in favour of the
plaintiff because in such a case the cause of action becomes
merged in the decree and the decretal debt forms part of the
plaintiff's estate and the appeal from the decree by the
defendant becomes a question of benefit or detriment to the
estate of the plaintiff which his legal representatives are
entitled to uphold and defend
46

(vide Gopal v. Ramchandra [ILR 26 Bom 597]
and Melepurath Sankunni v. Thekittil [(1986) 1 SCC 118 :
AIR 1986 SC 411] ).
11. Though Section 306 speaks only for executors and
administrators and Order 22 of Rule 3 Civil Procedure
Code sets out the rights of legal representatives to
continue the proceedings instituted earlier by a
deceased plaintiff if the right to sue survives, the
courts have taken the view that the legal
representatives stand on par with executors and
administrators regarding their right to seek
impleadment in order to continue the suit . We may in
this connection only quote the following passage occurring
in Melepurath Sankunni case [(1986) 1 SCC 118 : AIR 1986
SC 411] : (SCC p. 121, para 8)
“Section 306 further speaks only of executors and
administrators but on principle the same position must
necessarily prevail in the case of other legal
representatives, for such legal representatives cannot in
law be in better or worse position than executors and
administrators and what applies to executors and
administrators will apply to other legal representatives
also.”
12. Thus it may be seen that there is unanimity of view
among many High Courts in the country regarding the
interpretation to be given to the words “other personal
injuries not causing the death of the party” occurring in
Section 306 of the Indian Succession Act and that the
contrary view taken by the Calcutta and Rangoon High
Courts in the solitary cases referred to above has not
commended itself for acceptance to any of the other High
Courts. The preponderant view taken by several High
Courts has found acceptance with this Court in its decision
in Melepurath Sankunni Ezhuthassan case [AIR 1951 Mad
733] . It is on account of these factors we have expressed
our disapproval at the outset itself of the view taken by the
High Court in this case.
55. In light of the law laid down above, exceptions intended under
Section 306 of 1925 Act are meant to restrain the ambit of the
47

enacting clause to particular cases. It is true that there is a
st
possibility to adopt two interpretations when it comes to the 1
exception. As alluded by the learned amicus, first interpretation
could bar all cause of action relatable to personal injury
irrespective of claim being personal or against the estate of the
deceased. Second interpretation could mean that only cause of
action relatable to claims for personal injury are barred and any
claim against the property/estate of the deceased may continue.
We are of the opinion that later interpretation is to be preferred
over the former for the reason that exceptions have to be strictly
interpreted. The scope of exception cannot be allowed to chew the
enabling provision which sets the tone for liabilities to be carried
by legal representatives for a deceased person. Additionally, the
development of common law also points towards distinction in
cause of action which are personal as against estate claims. Even
in India, aforesaid interpretation is to be favored as per the ratio in
Evelyn Sequeira (supra). Moreover, the parties have not been able
to provide any reason as to why distinct claims against the estate
st
needs to be barred under 1 exception to Section 306 of 1925 Act.
56. Therefore, the ‘right to sue/cause of action’ mentioned under
Order XXII Rule 2 and 4 have to be located under substantive law
48

to be found in Section 306 of 1925 Act. The extent of survival of
right/cause depends on the facts and remedy sought in the suit.
A suit can be filed for seeking damages ex delicto or/and claim
from estate or property of the defendant. For example, a claim for
trespass can be an unliquidated damage for trespass per se ,
however, this can be coupled with conversion of a property such
as taking away trees on plaintiff land. It is the nature of the claim
that determines the cause of action and its survival.
57. Viewed differently, the answer can be traced in the definition
of legal representative provided under Section 2(11) of the CPC,
wherein the legal representative represents only the estate of the
deceased. His representation cannot be extended to the personal
rights which have extinguished with the death of his predecessor.
Now the same position is also confirmed by the suits instituted
under Legal Representatives Suits Act, 1855, wherein suits can
only be instituted for cause concerning the pecuniary interest of
the estate of deceased and nothing more. When this is the situation
for instituting a suit, a higher right or a different standard cannot
be set for substituting a legal representative during an appeal
process. The procedural law under CPC, 1986 Act, 2019 Act and
49

substantive law under 1925 Act or Legal representatives’ Suits Act,
1855 has to be harmoniously construed.
58. It was also argued that the 1986 Act and 2019 Act, being a
welfare legislation, needs to be interpreted broadly to continue the
cause of action of personal claims. The purpose of the legislation
was to protect the consumer and ensure that proper services are
provided by professionals. Although, the argument looks enticing,
we need to interpret the law based on the statutory language.
Section 13 (7) of the 1986 left this aspect to be governed by Order
XXII of CPC and did not create any such right to continue. Any
interpretation to militate against the same, would be against the
statutory intention. In any case, we are unable to locate a
substantive provision within 1986 enactment or 2019 enactment
to allow continuation of such personal claims.
59. From the above, it is clear that the exceptions provided under
Section 306 of 1925 Act have to be limited to those espousing
personal cause which do not continue once the plaintiff dies, such
as personal claims arising ex delicto like defamation, personal
injury etc., however, any claim on pecuniary interest of the
deceased estate continues. In order to explain the classification of
50

rights, jurisprudentially, Salmond classified proprietary rights and
35
personal rights as under –
“Proprietary and personal rights. Another important
distinction is that between proprietary and personal rights.
The aggregate of a man’s proprietary rights constitutes his
estate, his assets, or his property in one of the many senses
of that most equivocal or legal term. The sum total of a man’s
personal rights, on the other hand, constitutes his status or
personal condition, as opposed to his estate. If he owns
land, or chattels, or patent rights, or the goodwill of a
business, or shares in a company, of if debts are owing to
him, all these are rights pertain to his estate. But if he is a
free man and a citizen, a husband and a father, the rights
which he has as such pertain to his status or standing in
the law. ”
60. This Court in Vinayak Purshottam Dube Vs. Jayashree
36
Padamkar Bhat , while deciding the liability of legal heirs of the
deceased opposite party-developer to provide completion
certificate, conveyance deed etc., to the complainant in addition to
the monetary payment arising out of a development agreement,
made the following classification between proprietary and personal
rights –

35
P.J. Fitzgerald, Salmond on Jurisprudence, p. 238 (Universal Law Publishing Co. Pvt. Ltd.,
th
12 Edn., 1966)
36
(2024) 9 SCC 398
51

In the light of the above, it is clear that in distinction to an
individual’s personal right which is attached to his status, the
proprietary right relates to his estate. On the other hand, personal
right or claim usually includes damages for loss of reputation,
pain, and suffering, etc.
61. A contrary interpretation wherein any claim (inclusive of
personal and proprietary claim) concerning defamation, assault,
and other personal injuries not causing the death of the party,
being barred under Section 306 of 1925 Act, would entail different
52

standards being adopted for institution of suits under Legal
Representative’s Suits Act, 1855 and continuation of pre-existing
suit. The law has to be read harmoniously. There is no logical or
legal reasoning which can support a contrary interpretation to not
allow estate claims with respect to the categories of exceptions
identified above.
62. It needs to be cleared that suppose a decree stands during an
appeal process in favor of the plaintiff and the defendant dies, then
the entire claim is maintainable in appeal. As the decretal amount
has to be satisfied from the estate of the deceased, then the legal
representatives/executors/Administrator of the deceased
defendant may have to prosecute the appeal. However, in case the
plaintiff does not have a decree on the date of his death, then right
to continue necessarily have to be determined is terms of Section
306 of 1925 Act.
63. We may note that this Court herein is only answering the
question on interpretation of the applicable law and not
expounding on the normative requirement as to whether the policy
adopted by the law applicable is correct or there is a need to
change. English law appears to have gone further to preserve
tortious liabilities of the deceased defendant. To this count, even
53

judgments and Haryana Law Commission have also taken a view
to recommend amendments. We feel that it is appropriate to
engage policy experts to debate the need and necessity of
expanding scope of Section 306 of 1925 Act. The policy
consideration is best left to the Law Commission to see whether
there is a need to have a re-look at these provisions for future.
64. What falls from the above discussion are as under –
i. The common law maxim ‘ actio personalis moritur cum
persona’ in India has been statutorily modified by
various statutory instruments such as Fatal Accidents’
Act of 1855, Legal representatives’ Suits Act of 1855,
Indian Succession Act of 1925, etc.;
ii. That the legal representative of the deceased can
institute a fresh suit or be sued afresh in terms Legal
Representatives Suits Act, 1855 or in terms of Section
306 of Indian Succession Act, 1925;
iii. Continuation of suit by or against the legal
representative of the deceased has to be in terms of
Section 306 of Indian Succession Act, 1925 (substantive
law);
54

iv. Procedural prescription under Order XXII of CPC,
concerning substitution of legal representative of the
deceased party should be harmoniously construed with
Section 306 of Indian Succession Act.
v. The continuation of ‘right to sue’ under Order XXII Rule
2 read with Rule 4 is to be seen on the date of death.
vi. Generally, all rights and liabilities to maintain a suit are
carried to the legal representative under Section 306 of
Indian Succession Act, 1925. However, when
st
adjudicating claims under 1 exception to Section 306
of the Indian Succession Act, 1925, personal injury
claims abate, while claims for or against the estate of
the deceased survive.
65. Having understood the law, suppose, a doctor/opposite party
in a consumer complaint involving allegations of medical
negligence meets an unfortunate demise during the pendency of
complaint. As such, the question of medical negligence remains
undecided due to unproven allegations. Likewise, if such demise
37
takes place at the appellate stage , the issue of medical negligence

37
Inclusive of revisional stage.
55

already stands adjudicated, either in favour of or against the
doctor by the lower forum. There might be concurrent findings qua
medical negligence or conflicting decisions or reversal at the
appellate stage. Ultimately, as on the date of the doctor’s demise,
only two situations can arise, i.e., either an enforceable decree
exists against him, or the consumer complaint against him stands
dismissed. Therefore, what becomes essential at the relevant stage
is to see, whether any enforceable decree against the doctor existed
as on the date of the death of his doctor.
66. Before we part, a reference needs to be made to five judge
bench judgment of NCDRC in Balbir Singh Makol Vs. Chairman,
38
Sir Ganga Ram Hospital and Others , wherein while dealing
with the issue regarding payment of compensation concerning
medical negligence by the alleged negligent doctor who had died
during pendency of complaint, it was observed as thus –
“10. In the complaint the main allegation of negligence
is against Dr. Makhani who performed the operation at Sir
Ganga Ram Hospital who was the Doctor-in-charge in the
said case. Before the case could reach its culmination the
said Doctor, i.e. Dr. Makahni, died. Thus, the allegations
could neither be rebutted nor could he have an opportunity
to defend himself. In a tort of medical negligence, the cause
of action is personal against the person who has been
negligent in discharging his duties and that the cause of
action does not survive against his estate or the Legal

38
2001 (1) CPR 45
56

Representatives. However, in case the trial had been
completed and a decree/judgment had been passed
against the said deceased, that amount payable under the
decree could be recovered form the estate of the deceased
and the deceased and in such event the legal
representatives of the deceased could be brought on record.
But, that did not happen in the present case and even the
question whether Dr. Makhani had been negligent in the
discharge of his duties as a Surgeon could not be
adjudicated upon. In this view of the matter, the maxim actio
personalis moritur cum persona, as a general rule is
applicable to actions in torts and, therefore, the cause of
action against the party against whom an action in tort is
brought is extinguished on his death. The maxim means
that personal right of action dies with the person in other
words death destroys the right of action. The right to sue
will be extinguished. In this connection a reference be made
to the following, among other, rulings.
11. In G. Jayaprakash v. The State of Andhra Pradesh
reported in AIR 1977 A.P. 20 (22) the Hon'ble Supreme Court
held as under:
“The death of the doctor extinguished his liability
for damages and the suit against him stood
abated. The maxim, “actio personalis meritur cum
persona” applied to the case.
In the 8th Edn. Of Winfield on Tort at p.740. the
following passage occurs:
In case of a lawful surgical operation in general
negatives the liability. But in a case where
actionable negligence is committed by the doctor
which amounts to a personal wrong done by him,
he may be liable of damages. But his death
extinguishes his liability in tort and the right to
sue also gets extinguished. So, I see no force in
the contention that the 3rd defendant's estate
was benefited by the wrong done by him.”
*
13. The Hon'ble Supreme Court while considering the
question of bringing on record the legal representatives of
the deceased who was sued for damages in a tort of
57

defamation was considered and answered likewise in the
case of Melepurath Sankunni Ezhuthassan v. Thekittil
Geopalankutty Nair, reported in AIR 1986 SC 411. That was
the case where the suit for defamation had been dismissed
and the plaintiff had filed an appeal. During the pendency
of the appeal, the Defendant who was being sued for
defamation had died. The Supreme Court held that his legal
representatives could not be brought on record as the cause
of action stood extinguished.
14. In paragraph 7, the Hon'ble Supreme Court has
observed as under:
“Where a suit for defamation is dismissed and the plaintiff
has filed an appeal, what the appellant-plaintiff is seeking
to enforce in the appeal in his right to sue for damages of
defamation and as this right does not survive his death, his
legal representative has no right to be brought on the record
of the appeal in his place and stead if the appellant dies
during the pendency of the appeal. The position, however,
is different where a suit for defamation has resulted in a
decree in favour of the plaintiff because in such a case the
cause of action has merged decree and the decretal debt
forms part of his estate and the appeal form the decree by
the defendant becomes a question of benefit or detriment to
the estate of the plaintiff-respondent which his legal
representatives is entitled to uphold and defend and is,
therefore, entitled to be substituted in place of the deceased
respondent-plaintiff.”
In light of the law discussed above, we do not subscribe to
the ratio of NCDRC in Balbir Singh Makol Case (supra). Five
judge bench of NCDRC therein seem to have erred on following
counts –
(a.) Applied common law maxim actio personalis moritur cum
persona, by failing to read the statutory modification
which are carried out by various enactments in India;
58

(b.) Misread the ratio in Melepurath Sankunni
Ezhuthassan Case (supra) and failed to limit the same
to facts of the case, which was solely arising from
personal injury claim;
(c.) Made the first category of exceptions under Section 306
of 1925 Act absolute and extended the bar to claims of
pecuniary loss against the estate as well;
67. In the context of Rule 4 of Order XXII of CPC, one has to
understand and see whether the right to sue against such alleged
medically negligent doctor survives or not upon his death. As
discussed earlier, the ‘right to sue’ means the right to seek relief
through legal proceedings. Such proceedings, in a general sense,
are instituted against the opposite party/defendant(s), who
possess a corresponding right to defend, as opposed to the
claimant’s right to prosecute. The right to defend is intrinsically
linked to, and arises from the right to prosecute, and vice-versa.
Therefore, for the continuation of proceedings, it is essential that
both rights co-exist. Nonetheless, in view of the preceding
discussion and the statutory framework provided in 1986 Act as
well as 2019 Act, we conclude that upon the death of the alleged
medically negligent doctor, his/her legal heirs can be impleaded
59

and brought on record. Consequently, the extent of liability will be
determined based on the pleadings and evidence presented. The
question is answered accordingly.

68. The complainant had succeeded before the District Forum
and was awarded compensation. However, when taken in appeal
by doctor, the SCDRC allowed the same and set-aside the award.
Aggrieved, the original complainant preferred revision before
NCDRC, pending which, the doctor/opposite party passed away on
04.08.2009. As borne from records, ‘right to sue’ if any subsists
qua claims against the estate on the death of the opposite party in
terms of Section 306 of Indian Succession Act, 1925 read with
Order XXII Rule 2 and 4 of CPC. In order to establish the claims,
the NCDRC is duty bound to adjudicate the negligence aspect, if
any by the deceased doctor and resultantly adjudicate the
surviving claims.
69. Before we conclude, it is necessary to state that question as
to what claim can be attributed to the accretion of the deceased
defendant’s estate needs to be carefully analyzed by NCDRC as we
have dealt only with the question of law. Of course, exhaustive list
of these items cannot be given, since it would depend upon
pleadings and proof brought before the Court. It may be relevant
60

to note that the Claimant has the duty to first establish the
negligence of the deceased doctor and the claims on the estate
recoverable as per Section 306 of the 1925 Act.

70. We may add that the Impugned Order II confuses claims
attributable to estate and holds that any adjudication on merits
can be recoverable from the estate of the deceased doctor. Rather,
the Court has to only look at claims which are maintainable as
against the estate, rather than adjudicating personal claims which
have elapsed with the death of the doctor.
71. We must also place on record appreciation for the invaluable
assistance of the Amicus Curiae, Mr. Raghenth Basant, learned
senior counsel and Mr. Varun Kapoor, learned counsel, whose
erudite submissions have been of immense help to this Court.
CONCLUSION
72. In light of law laid down in para 64 above, the matter is
remitted to NCDRC to be adjudicated within six months from date
of this order. Consequently, the impugned order dated 26.05.2010
(Impugned Order I) passed in M.A. No. 1214 of 2009 (Application
for substitution) in Revision Petition No. 432 of 2006 and order
dated 24.05.2018 (Impugned Order II) passed in M.A. No. 324 of
61

2011 (Review) in Revision Petition No. 432 of 2006 and R.A. No. 70
of 2011 (Review) in Revision Petition No. 432 of 2006 are hereby
set-aside and the revision petition is restored to its original
number.
73. Accordingly, the present appeals stand disposed of in above
terms. Pending application(s), if any, shall stand disposed of.



..…….…………….…………J.
(J.K. MAHESHWARI)


…….………………………..J.
(ATUL S. CHANDURKAR)
New Delhi;
May 04, 2026.
62