Summary
When a doctor accused of medical negligence dies while a consumer revision is pending and no decree subsists against him, his legal heirs can be brought on record, but only claims against his estate survive; purely personal-injury claims abate under the first exception to Section 306 of the Indian Succession Act, 1925, which governs survival of the right to sue under Order XXII CPC. Disapproving the NCDRC's view in Balbir Singh Makol, the Court set aside the NCDRC orders and remitted the revision.
Issues
- Whether, on the death of a doctor during appellate or revisional consumer proceedings, his legal heirs can be impleaded and held liable for his alleged medical negligence, and if so, to what extent.
- Whether survival of the right to sue under Order XXII CPC, applied through Section 13(7) of the Consumer Protection Act, 1986, is governed by Section 306 of the Indian Succession Act, 1925.
- Whether the first exception in Section 306 (personal injuries not causing death) bars all claims or only purely personal claims, leaving claims against the deceased's estate to survive.
Provisions considered
- Section 306, Indian Succession Act, 1925Treated as the substantive law on survival of causes of action; all rights to sue survive except, among others, defamation, assault and other personal injuries not causing death. The exception was construed strictly: personal-injury claims abate, but claims for or against the deceased's estate survive. (¶¶ 48, 51, 52, 55, 56, 59, 61, 64)
- Order XXII Rules 2, 4 and 11, Code of Civil Procedure, 1908Continuation of proceedings on a party's death depends on whether the right to sue survives, judged on the date of death under substantive law; Rule 11 extends the Order to appeals. The procedural rules must be read harmoniously with Section 306. (¶¶ 35, 36, 37, 38, 39, 56, 64)
- Section 2(11), Code of Civil Procedure, 1908A legal representative represents only the deceased's estate, not personal rights extinguished on death. (¶ 57)
- Section 13(7), Consumer Protection Act, 1986Applies Order XXII CPC on the death of a complainant or opposite party; it creates no substantive right to continue personal claims, so survival is left to the general law. (¶¶ 34, 35, 58)
- Section 38(12) and Section 2(5)(vi), Consumer Protection Act, 2019Continues the Order XXII procedure of the 1986 Act; the definition of complainant including legal heirs of a deceased consumer shows that the consumer's claim survives through legal heirs. No provision in either Act permits continuation of personal claims against a deceased opposite party. (¶¶ 40, 58)
- Sections 1 and 2, Legal Representatives' Suits Act, 1855Permits fresh suits by or against representatives for wrongs causing pecuniary loss to the estate within one year before death; used to show that the law permits estate claims, and that substitution in a pending appeal cannot be governed by a higher standard. (¶¶ 45, 46, 57, 61)
Held
- The maxim actio personalis moritur cum persona has been modified in India by statute, including the Fatal Accidents Act, 1855, the Legal Representatives' Suits Act, 1855 and the Indian Succession Act, 1925; continuation of a pending suit by or against legal representatives is governed by Section 306 of the 1925 Act, with which Order XXII CPC must be harmoniously read, and survival of the right to sue is judged on the date of death. (¶¶ 56, 57, 64)
- Exceptions to Section 306 must be strictly construed so that they do not swallow the enacting part. The first exception (defamation, assault and other personal injuries not causing death) bars only purely personal claims such as damages for pain, suffering or reputation; claims relating to the pecuniary interest of the estate, for or against the deceased, survive. (¶¶ 55, 59, 60, 61, 64)
- Melepurath Sankunni must be confined to purely personal claims of defamation; the NCDRC's five-member decision in Balbir Singh Makol was disapproved for applying the common law maxim without statutory modifications, misreading Melepurath Sankunni, and extending the personal-injury exception to estate claims. (¶¶ 53, 66)
- If a decree subsists against the deceased defendant during the appeal, the entire claim is maintainable and the decretal amount is payable from the estate; if no decree subsists on the date of death, survival must be determined under Section 306. (¶¶ 62, 65)
- The Consumer Protection Acts, though beneficial legislation, contain no substantive provision for continuing personal claims against a deceased opposite party; Section 13(7) leaves the matter to Order XXII CPC, and the Court declined to extend survival on policy grounds, leaving that to the Law Commission. (¶¶ 58, 63)
- On the death of a doctor accused of medical negligence, the legal heirs can be impleaded, but liability is confined to surviving claims against the estate; the consumer forum must first adjudicate negligence and then decide which surviving claims are recoverable from the estate. The NCDRC's review order wrongly treated any adjudication on merits as recoverable from the estate. (¶¶ 67, 68, 69, 70)
Result
Appeals disposed of; the NCDRC orders dated 26.05.2010 and 24.05.2018 were set aside; Revision Petition No. 432 of 2006 was restored and remitted to the NCDRC for decision in light of paragraph 64 within six months.