MADAN GOPAL v. DR. RUGMINI — 1988 DIGILAW 151 (KER)

Judgment :- 1. The C.M. appellant is the petitioner in an application in the court below under Order XXXIII R.1 of the Code of Civil Procedure for permission to sue as an indigent person. He seeks recovery of Rs. 6 lakhs from the respondents, who are medical practitioners, as damages for the alleged professional negligence and dereliction of duty. 2. The petitioner is the husband of deceased Mala. He married her on 16-4-1982 and since then she had been residing in her husband's family. The petitioner and his wife had a very happy married life. By early 1983, Mala was enceinte and was taken to the first respondent Civil Surgeon for pre-natal treatment. The first respondent examined Mala and assured the petitioner that everything was normal and there would not be any complications. On 19-9-1983, Mala developed labour pain and as directed by the first respondent she was admitted in the Lakshmi Nursing Home run by the 2nd respondent. Both respondents examined Mala and again assured the petitioner that everything was normal and no special treatment or attention was called for. On 20th and 21st, September, 1983 both respondents examined Mala. On 21st, she was removed to the labour room under the direction of the respondents. They asked the petitioner to bring two bottles of blood of Group B-positive. Petitioner rushed out in search of blood and brought the blood. On arrival he was told that his wife died after giving birth to a still born child. The petitioner attributes utter negligence to and want of due care on the part of the respondents. With these allegations petitioner filed the indigent original petition for damages. The respondents denied the averments in the petition and contended that no negligence was shown by them. They also contended that the petition is defective since the parents of the deceased Mala are not impleaded in the suit and that the petitioner's claim being under the provisions of Fatal Accidents Act, 1855 the same is barred by limitation. The indigency of the petitioner was also disputed. 3. The court below upheld the plea of the petitioner that he was really an indigent person unable to pay the requisite court fee. The finding of the court below regarding the indigency of the petitioner though challenged in the cross objection no argument was addressed on this point by the counsel for the respondents. 3. The court below upheld the plea of the petitioner that he was really an indigent person unable to pay the requisite court fee. The finding of the court below regarding the indigency of the petitioner though challenged in the cross objection no argument was addressed on this point by the counsel for the respondents. The petitioner is employed and is a resident of Cochin. He has produced the salary certificate and acted upon it. We see no reason to take a different view. 4. The court rejected the petition on two grounds, viz., (1) the suit is barred by limitation, and (2) the petitioner did not furnish full particulars of the parents of deceased Mala and this violated S.3 of the Fatal Accidents Act. The appeal is directed against that order. 5. The first point that would arise for consideration is whether the petition as framed would come with in the purview of the Fatal Accidents Act, 1855. If the claim is one under the provisions of the Fatal Accidents Act, 1855, Art.82 of the Limitation Act would apply and if not, Art.113 is applicable. The relevant portion in S.1-A of the (Indian) Fatal Accidents Act, 1855 reads as follows-. "IA.-Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under circumstances as amount in law to felony or other crime. "Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased." 6. "Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased." 6. The main thrust of argument of the counsel for the appellant is that S.1A of the Fatal Accidents Act does not apply to any case where death itself gives rise to a cause of action for the dependants and the act applies only in a case where the deceased himself/herself had acquired a cause of action and the Act enables the plaintiff to continue that action. The argument is that the words occurring in S. IA "if the death had not ensued" indicate that view and it is pointed out the plaintiff could base his claim only on cause of action with on which the deceased could have sued for damages. The counsel argues, that in the present case there was instantaneous death of Mala, and she could not have sued the wrong-doer and her death did not give rise to any cause of action to the respondent. 7. To understand the real scope of the nature of the cause of action under Fatal Accidents Act it is necessary to trace the legislative history. This S.1A of (Indian) Fatal Accidents Act, 1855 is in substance a reproduction of sections I and II of Chap.9 and 19 of Victoria 1846 (Lord Campbell's Act). At common law of England no civil action lay against a person for causing death of another. If a negligent driver was killed in the accident which he himself caused, nothing was recoverable from his estate or insurer by other persons if any injured in the accident. "Actio Personal is Moritur cum persona" which means a personal action dies with the person was a general rule applicable to torts. Later on the applicability of this maxim was extended even in cases of death of injured person. By the growth of motor traffic and its accompanying toll of accidents, the defects of the law were noticed by the legislature and accordingly the Law Reforms (Miscellaneous Provision) Act 1934 was passed to provide generally for the survival of cause of action in tort. By the growth of motor traffic and its accompanying toll of accidents, the defects of the law were noticed by the legislature and accordingly the Law Reforms (Miscellaneous Provision) Act 1934 was passed to provide generally for the survival of cause of action in tort. This act provided for the survival of cause of action subsisting when the tortfeasor or the injured person died; however it did not as such created a cause of action. 8. At common law there was separate rule that death could not give rise to cause of action in other persons, although they were dependant on the deceased. This rule derived from the decision of Lord Ellenborough in Baker v. Bolton (1808 (1) Camp. 493) that "in a civil court the death of a human being could not be complained of as an injury". In that case the plaintiff and his wife were passengers in a stage coach which was upset by the negligence of the defendants. The plaintiff himself was bruised and his wife was seriously hurt and she died a month after. It was held that the plaintiff could recover for the loss of her society that month and not after her death. 9. In a later case Osborn v. Cillet (1873 LIZ 8 Ex. 88) the plaintiff could not recover for the loss of society of his daughter who was run over and killed outright at the scene of the accident by the defendant's negligence. The development of Railways in England led to great upsurge in the number of accidents, fatal and non-fatal and this made a change in the law imperative. In 1846 the Fatal Accidents Act, otherwise known as Lord Campbell's Act was passed and it changed the common law so far the dependants who were specified in the Act. Thereafter the Fatal Accidents Act 1976 was passed replacing the earlier legislation. This Act provides that whenever the death of a person is caused by the wrongful act, neglect or default of another such as would (if death had not ensued) have entitled the injured person to sue and recover damages in respect there of, then the person who would have been liable if death had not ensued shall be liable to an action for damages on behalf of the dependants notwithstanding death of the person injured. The learned authors Winfield and Flowiez in the book "Winfield and Jolowics on Tort" 11th Edition edited by W.V.H. Rogers have described the nature of action under the English Fatal Accidents Act, 1976, in the following terms: "The right of action created by the Fatal Accidents Act is "new in its species, new in its quality, new in its principles in every way new"; it is not the deceased's own cause of action which is caused to survive, it is new action for the benefit of his dependants. For this new cause of action to exist, however, it is necessary that the circumstances of his death should have been such that the deceased himself, had he been injured and not killed, could have sued for his injury. One must consider the hypothetical ability of the deceased to sue as at the moment of his death, with the idea fictionally that death has not taken place. If, therefore, the deceased had been run over in the street through nobody's fault but his own; there will be no claim on behalf of his dependants; nor will there be such a claim if by contract with the defendant the deceased had excluded any possibility of liability to himself, but if the contract merely limited the amount of the defendants liability, then the deceased could have sued for some damages, the way is open for the dependants claim, and that claim, being independent of the deceased's, will not be affected by the limitation of liability." 10. It is clear that the action lies for the benefit of the deceased's dependants, and the provisions of the (Indian) Fatal Accidents Act 1885 also enable the deceased wife, husband, parent and child, if any, to file suit for damages. The right of action created by the Fatal Accidents Act is not the deceased's own cause of action, which is caused to survive but it is a new . action for the benefit of the dependants. The nature of the liability of the wrong doer has been explained by the Supreme Court in Gobald Motor Service v. Veluswami (A.I.R. 1962 S. C. 1). The Court held: "The cause of action under S.1. and that under S.2 are different. action for the benefit of the dependants. The nature of the liability of the wrong doer has been explained by the Supreme Court in Gobald Motor Service v. Veluswami (A.I.R. 1962 S. C. 1). The Court held: "The cause of action under S.1. and that under S.2 are different. While under S. I damages are recoverable for the benefit of the persons mentioned therein, under S.2 compensation goes to the benefit of the estate; whereas under S.1 damages are payable in respect of loss sustained by the persons mentioned therein, under S.2 damages can be claimed inter alia for loss of expectation of life. Though in some cases parties that are entitled to compensation under both the sections may happen to be the same persons, they need not necessarily be so; persons entitled to benefit under S.1 may be different from those claiming under S.2. Prima facie as the two claims are to be based upon different causes of action, the claimants, whether the same or different, would be entitled to recover compensation separately under both the heads." 11. In the instant case the contention of the petitioner is that Mala died after giving birth to a still born child. In the original petition it has been alleged that on account of the negligence and incompetence of the respondents herein, the petitioner lost his life partner and their offspring and the life of the petitioner's wife was priceless and he claimed damages for the mental agony and torture that he had undergone and for the dark future he has to face. The allegations in the petition thus show that Mala had a cause of action against the respondents for damages for their negligence and incompetence. This cause of action shall survive and the dependants of deceased Mala are entitled to claim damages on the basis of this cause of action. The husband also had acquired a new cause of action independent of the deceased's own cause of action. Therefore, the claim put forward by the petitioner squarely comes within the purview of the (Indian) Fatal Accidents Act, 1885. 12. Under Art.82 of the Limitation Act, 1963 two years is the period of limitation prescribed for filing such a suit and the period would begin from the date of the person injured. Therefore, the claim put forward by the petitioner squarely comes within the purview of the (Indian) Fatal Accidents Act, 1885. 12. Under Art.82 of the Limitation Act, 1963 two years is the period of limitation prescribed for filing such a suit and the period would begin from the date of the person injured. Art.82 is in the following terms: "By executors, administrators Two The date of or representatives under the years death of the Indian Fatal Accidents Act, 1885 person killed". (13 of 1855) It has been explained in an earlier decision reported in Johnson and another v. Porto Novo Cundasamy and others (I. LR. Madras Series Vol. 28) 1905 page 479) that the representative mentioned in the (Indian) Fatal Accidents Act, 1855 would include all persons for whose benefit the right of action was given. It was also held in that decision that the right of action conferred by the Act is not for the benefit of the personal estate of the deceased, but for the benefit of his wife, parent and child. Therefore, in our view Art.82 of the Limitation Act is the relevant article applicable to this case. The learned counsel for the appellant contended that the relevant article applicable in this case is Art.113. That is a residuary article applicable to suits for which no period of limitation is provided elsewhere in the schedule. When there is a specific article in the statute, the residuary article has no application. Mala died on 21st September, 1983 and the suit was filed only on 23-7-1986. The allegation made by the applicant in the application show that the suit would be barred by law and the court below was right in rejecting the application under Order XXXIII R.5 C.P.C 13. The other reason for rejecting the petition is that the petitioner did not divulge all particulars of the persons for whom or on whose behalf such action was brought and the nature of the claim in respect of such action was brought. Under S.3 of the Fatal Accidents Act every one of the persons entitled to the benefit of damages has to be mentioned in the plaint obviously for the reason that no separate action can be brought by any of them later on. This may be a curable defect. Since the petition is clearly barred by time, we do not propose to enter a finding on this point. This may be a curable defect. Since the petition is clearly barred by time, we do not propose to enter a finding on this point. 14. The court below rightly rejected the indigent original petition. We see no reason to interfere with the finding of the court below. The C.M.A. and cross-objection are dismissed. The parties will suffer their own costs. Dismissed. ORDER U. L. Bhat, J. We pronounced judgment in the above case on 17-3-1988 holding that the application for permission to sue as an indigent person is liable to be rejected under S.5 (f) of Order XXXIII C. P. C. When we pronounced the judgment, learned counsel for the appellant, Sri. S. Sivaraman submitted that in view of the rejection of the application under R.5 (f), the appellant may be granted time to pay the court fee as contemplated in R.15 (A) of Order XXXIII C. P. C. Learned counsel for the respondents opposed the request and, therefore, we postponed to today consideration of the matter. 2. We have heard both sides. Learned counsel for the respondents contends that the judgment in the appeal having been delivered this court has become functus officio and has no jurisdiction to grant time. We do not think this submission is correct. R.15 (A) clearly recognises power in the court, while rejecting an application under R.5 to grant time to pay the requisite court fee. We could certainly have exercised this jurisdiction while pronouncing the judgment. We did not do so because our attention was not invited to R.15 (A). That may be an error on the part of the court, not an error on the part of the appellant. We cannot permit an error on the part of the court to prejudice the interest of any party. It is true that there may be an element of incongruity in the request made, that is because we have agreed with the court below that the allegations in the application show that the suit would be barred by time. Nevertheless, the petitioner is entitled to pay court fee. What is to be rejected under R.5 is only the application for admission to sue as an indigent person. The rejection of the application cannot stand in the way of the appellant filing a separate suit paying court fee. Nevertheless, the petitioner is entitled to pay court fee. What is to be rejected under R.5 is only the application for admission to sue as an indigent person. The rejection of the application cannot stand in the way of the appellant filing a separate suit paying court fee. What he now desires is to pay court fee on the suit already filed with an application for permission to sue. We are satisfied that he has a right to ask for an opportunity to pay court fee and we have got jurisdiction to grant time. Reviewing the above judgment, we permit the appellant to pay court fee within three months from today.