S

DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY

VISAKHAPATANAM, A P., INDIA

PROJECT TITLE:
DISCHARGE OF TORTS
SUBJECT:
DISCHARGE OF TORTS
NAME OF THE FACULTY:
PROF. (DR) P SRIDEVI
NAME OF STUDENT:

AKHIL H KRISHNAN

ROLL NO. : 18LLB005

SEMESTER : I

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ACKNOWLEDGMENT

I would sincerely like to put forward my heartfelt appreciation to our respected Torts professor,
PROF. (DR) P SRIDEVI for giving me a golden opportunity to take up this project regarding
“DISCHARGE OF TORTS”. I have tried my best to collect information about the project in
various possible ways to depict clear picture about the given project.

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ABSTARCT
In discharge of tort, the circumstances are such the liability exists but remedy does not exist. The
meaning of discharge of tort is coming to an end of tort. It is a process by which tort cease to
exist and a wrongdoer is not liable for wrong committed by him. Discharge of torts can be
interchangeably used with the term Limitation of liability for torts. In this project we will discuss
various modes of how can a person be discharged from the liability of a tort and case laws and
illustration related to it.

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CONTENTS

INTRODUCTION ......................................................................................................................5
DISCHARGE OF TORTS ..........................................................................................................6
BY VOLUNTARY ACT OF THE PARTY .................................................................................6
BY WAIVER .......................................................................................................................6
BY AGREEMENT ...............................................................................................................7
DISCHARGE OR LIMITATION BY OPRERATION OF LAW .............................................. 12
BY JUDGEMENT .............................................................................................................. 12
BY DEATH ........................................................................................................................ 14
STATUTES OF LIMITATION .......................................................................................... 16
COMPLIANCE WITH STATUTORY REQUIREMENTS................................................. 17
CASE LAWS ............................................................................................................................ 18
CONCLUSION ......................................................................................................................... 24
BIBLIOGRAPHY ..................................................................................................................... 25

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INTRODUCTION
Tort is a civil wrong, which includes every wrongful act or an infringement of a right (other than
under contract) leading to legal liability. Tort is a law of damages. Damages are of two types,
liquidated and unliquidated damages. It is based on the Latin maxim Ubi jus ibi remedium–
Where there is wrong, there is remedy.

Tort means the violation of legal right vested in other person or in other words, it’s a breach of a
legal duty which the wrongdoer owed towards the victim. Thus, the presence of legal right and
failure to obey the legal duty to protect that right constitute tort.

Tort is a civil wrong but all civil wrongs do not come within the ambit of tort. There are other
kind of civil wrongs also, like breach of contract, breach of trust. So whenever a civil wrong is
there we must see, whether the wrong is covered by any specific law, if not then it would be
covered by law of torts. Where a single action of the wrongdoer results in two or more torts, as
well as covered under any of the specific law, provided for recognized category of civil wrong,
the victim can get redress either under torts or claim under any other specific law provided
therein.

In discharge of tort, the circumstances are such the liability exists but remedy does not exist. The
meaning of discharge of tort is coming to an end of tort. It is a process by which tort cease to
exist and a wrongdoer is not liable for wrong committed by him. Discharge of torts can be
interchangeably used with the term Limitation of liability for torts. In this project we will discuss
various modes of how can a person be discharged from the liability of a tort and case laws and
illustration related to it.

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DISCHARGE OF TORTS
Liability for torts may be discharged or limited either-
a) By voluntary act of the party; or
b) By operation of law.
The distinction between discharge by act of parties and discharge by operation of law is open to
criticism, in as much as the law only operates in conjunction with some act of the parties.
Nevertheless the distinction is practically useful. The discharge of torts may conveniently be
divided, for consideration, into discharge of ordinary torts as distinguished from joint torts. Many
considerations are common to both. Those peculiar to joint torts will be separately considered.

BY VOLUNTARY ACT OF THE PARTY

The liability under tort can be limited or discharged by the voluntary action of the party. That is,
the party who suffered injury can decide on the discharge of the liability. This voluntary act is of
two types
a) By waiver; or
b) By agreement

BY WAIVER
Much of the uncertainty and confusion which arise in connection with the doctrine of waiver
might, it would seem, be eliminated by bearing in mind, in each case, that waiver may be based
either upon contract or estoppel. If it is based upon contract, the questions are as to parties,
construction, and consideration. These will be subsequently discussed. If it is based upon
estoppel, the questions are of fact, especially with reference to the altered position of the parties
consequent upon the conduct claimed to operate by way of estoppel. Knowledge of the existence
of a right, and the intention to relinquish it, must concur, to create an estoppel by waiver.
Acceptance of a benefit, with knowledge of wrong done, may discharge a tort by waiving it.
Thus, if a person who has been induced by fraud and deceit to enter into an executory contract
for the purchase of personal property, to be delivered and paid for in the future, discover the
fraud while the contract is still executory, and, notwithstanding, afterwards accepts the property,

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under the contract, and uses it, he cannot maintain an action for damage for the fraud, or recoup
them in an action for the purchase price of the property. As has already been seen, there are
many cases in which the person against whom the wrong has been committed may waive the tort
and bring assumpsit. When a father sues for the wages of his infant son, employed without his
consent, he thereby ratifies the hiring, and waives the tort involved in the harboring of the son.

BY AGREEMENT
Discharge or limitation of liability by agreement will be considered with reference to the time of
making the agreement, whether-
a) Before damage; or
b) After damage.
AGREEMENT BEFORE DAMAGE
While freedom of the right to contract is fully recognized by the courts, parties to a contract are
generally, but not universally,
1. Denied ability to so contract as-
a) To escape liability in tort for negligence or fraud, with respect to a duty based on
contract; or
b) To determine in advance the amount of damage which may result from such subsequent
tort, except, particularly, as to unrepeated telegrams.
2. Allowed to limit liability by agreement in such cases-
a) By stipulating in advance the value of the property which may be involved;
b) By prescribing certain reasonable duties to be performed by the injured party in the
conduct involved under the contract, and as, conditions precedent to right to maintain
action for damages done; and
c) By defining the physical extent of the undertaking.
On the one hand, the law recognizes the absolute right of any person to make any lawful contract
he may desire to make. On the other hand, the courts reason that it is not interfering with
freedom of contract to deny, for reasons of public policy, the ability to execute certain contracts
limiting liability for torts.

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Thus it has been generally regarded as unwise to allow anyone to contract against his own
negligence. The recklessness of consequences which would result from giving effect to such a
provision affords a cogent reason. Moreover, in very many classes of cases the party to the
contract insisting on limitations would be in a position to dictate absolutely to the party whose
right to damages was being contracted away; so that such a contract would really lack the vital
element of agreement,-volition. If carriers, telegraph companies, and employers generally were
allowed unrestricted freedom to evade responsibility in tort by agreement the public would be
practically compelled to subtit. The cases on this point arise under contract relationships,
affording further reasons peculiar to each relationship. It is accordingly maintained that the
ability to contract against negligence varies with the relationship involved.
Common carriers have been allowed to contract against negligence in some jurisdictions.' This
right, however, has been almost universally denied them. Indeed, in Willock v. Pennsylvania R.
Co.," the court went so far as to hold that a stipulation in a bill of lading that the owner, shipper,
and consignee severally shall cause the goods to be insured, and that in case of loss the carrier
shall have the benefit of the insurance, if such loss "shall occur from any cause which shall be
held to render this line or any of its agents liable therefor," is a contract- intended to protect the
carrier against the consequences of its own negligence, and is void. A fortiori, a provision in a
contract of shipment limiting the extent of the carrier's liability is ineffectual where the injury is
caused by his gross negligence." The public character of the service rendered, and the possibility
of connivance between the carrier and his servants, or between either and a third person, are
considerations of public policy particularly applicable to this relation.
As to telegraph companies, the true principle would seem to be that, while they may limit
liability for errors and delays resulting from atmospheric changes, or from disarrangements of
line or instruments from causes which reasonable care could not avoid, they may not stipulate
against their own negligence.
As between employer and employed it is the generally accepted rule that an employer cannot
provide by contract against damages by negligence to his employ. In New York it does not
appear that public policy forbids the exaction by a railway from its employees of such a contract;
but, in the absence of a new consideration, the contract is void for that reason.
A limitation contained in a contract which stipulates that the damages to be recovered in cases of
negligence of one of the parties to the contract shall not exceed a certain sum, is regarded as a

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discharged from a part of the liability of negligence, and is therefore invalid in those jurisdictions
in which the right to contract against negligence is denied. Accordingly, where a horse worth
$1,500 was shipped under a contract providing that "the liability of the company for valuable
livestock shall not exceed $100 for each animal," it was held that this was not merely an agreed
value of the animal, but an attempt to limit the carrier's responsibility for negligence, and was
therefore void." However, a stipulation on a telegram blank that the company will not be
responsible in damages beyond the price of the message unless the message be repeated at the
sender's expense has been sustained by the supreme court of the United States as reasonable and
valid.
At the time the contract is executed, provided the limitation be such as the law can recognize as
reasonable and not inconsistent with sound public policy. A contract by a common carrier
stipulating in advance the value of the property carried, with the rate of freight, based on the
conditions that the carrier assumes liability only to the extent of the agreed value, even in cases
of loss or damage by the negligence of the carrier, has been sustained," and again held not
binding." Courts will, however, look into attempts to limit the carrier's responsibility for
negligence by stipulation as to agreed value, and will often avoid them.
The parties to a contract may specify certain reasonable requirements of the party complaining of
a tort, after it has occurred, as necessary preliminaries to his right to recover. Thus, the claim for
damages may be required to be made within a certain reasonable time after the alleged injury.If,
however, the stipulation is unreasonable, as to require bringing of suit within 40 days after
injury, it will not be enforced. Notice to the agent before the removal of livestock of claim for
damages is a reasonable requirement.
The law allows in some cases the determination of the physical extent of a contract or
undertaking. Thus, intermediate carriers may limit their liability to injuries occurring to through
freight to the time it is on its own line.
But a limitation, when allowed by law to be binding, must have been assented to by the parties to
the contract. It is strictly construed, and must be proved by the party claiming advantage under it.

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AGREEMENT AFTER DAMAGE

A cause of action sounding in tort may be settled and discharged by agreement of the wrongdoer
and the sufferer. In order that such an agreement may operate as a bar to the suit in tort of the
sufferer, three things are necessary:

a) It must be executed by all necessary parties, and by the legal representatives of persons
incapacitated, or by the legal representatives whenever required by statute, as in cases of
death by wrongful act.
b) It must be founded on a sufficient consideration.
c) It must show a completed intention to discharge the particular cause of action in issue.

FORM OF AGREEMENT
The agreement discharging a cause of action in tort may take one or more of several not
essentially different forms. It may be a compromise or an accord and satisfaction, or a formal
release, with or without seal, or a covenant not to sue, or a ratified settlement, even if fraudulent.
The agreement claimed to operate as a discharge, in whatever form it exists, is a matter of
affirmative defense, and must be specially pleaded.
Capacity Of The Parties
The agreement releasing a cause of action based on tort must be executed by all the necessary,
and by only the competent, parties. A lunatic, injured in a wreck, cannot execute a release for
damages suffered. Even drunkenness, taking away knowledge of what the drunkard is doing, or
that he was signing a release, may vitiate it. Capacity to execute a release is ordinarily a question
of fact for the jury. A wife's release of a cause of action peculiarly her own, arising out of
injuries to her person, does not discharge liability to her husband for the same wrong. Ordinarily,
an infant may avoid any release he may execute, as he may any other contract. Release by a
parent of personal injury to a minor can operate only as a release of damage suffered by the
parent, not by the minor. To fully satisfy all causes of action, a release should be obtained, not
only from the parents, as to their separate causes of action, but also from the legally appointed
guardian of the infant. On the same principle, where, upon death by tort, a right of action accrues

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to the next of kin, or other statutory beneficiaries, only legally constituted authorities can execute
a release. A brother-in-law cannot; nor the widow. The person authorized by statute to sue for the
injuries complained of (as the special administrator for widow and next of kin of a man killed by
wrongful act, or a guardian ad litem of an infant or insane person), and the attorney of record in
the suit brought, may undoubtedly execute a proper release or satisfy a judgment entered after
trial or on stipulation, or may execute a release, especially when directed so to do by the court
appointing such person executor or guardian. Acceptance by a widow of benefits from a railroad
relief association does not bar action by her, as administratrix, on behalf of her children.
Consideration
There must be a consideration. A mere gratuity is not sufficient. Thus, the voluntary payment of
wages, merely as wages, by a master to an employed injured by the master's alleged negligence,
does not constitute a satisfaction of the cause of action. But a receipt of a stated sum of money,
even in the absence of an express agreement that it shall be in satisfaction of such a cause of
action, will be presumed to be a full recompense for the injury., A promise to re-employ or to
keep in employment is a sufficient consideration. Where a sum certain is to be paid, a lesser sum
cannot be paid by the debtor in satisfaction of a greater; but where the claim is for unliquidated
damages, or is uncertain, a less sum may be paid and accepted in satisfaction. But, even with
respect to unliquidated damages, the amount of the consideration may be material as evidence of
fraud or mistake. A seal sufficiently imports a consideration, but may be inquired into upon an
allegation of fraud.
Intent to Discharge Wrong In Issue.
An agreement as to satisfaction of a claim based on a tort is governed by ordinary principles of
contract. Words employed in a release will receive a fair construction, but will not be extended
beyond the consideration. Otherwise, a release would be made for the parties where they never
intended or contemplated one. The agreement may be conditional. It may fail to cover cause of
action in issue. A release of all claims and demands, "from the beginning of the world to this
day," does not cover injuries not therein mentioned, and not known to exist at the time the
release was executed. But a simple receipt in full-for example, "$15 in full for damages sustained
by a bull booking a horse"-is a sufficient discharge. The person executing the agreement claimed
as a release of a cause of action sounding in tort may, notwithstanding it, maintain his action if
he can show that the release had been obtained by such fraud of the defendant as will entitle him

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to have it set aside (in many jurisdictions, without return of what was paid under it by the tort
feasor), if he act without laches in asking for a rescission. Such an agreement may be rescinded
in the same action which awarsds damages for the wrong done.

DISCHARGE OR LIMITATION BY OPRERATION OF LAW

Liability for torts may be discharged by operation of law by

a) Judgment;
b) death of either party;
c) Statutes of limitation;
d) Compliance with statutory provisions.

BY JUDGEMENT

A tort is discharged by a judgment rendered in a former action, although the form of action
may have been different, provided
a) The court had jurisdiction;
b) The action was between the same parties, and on the same cause of action; and
c) The judgment was on the merits, and final

Reason

When an action is brought, and the plaintiff recovers judgment, the original right in respect to
which he sues is merged in the higher and better right which he attains by his judgment. It being
gone, the party may proceed to obtain its fruits by execution, or to revive it by a fresh action on
his judgment. "For you shall not bring the same cause of action twice to a final determination;
'Nemo debet bis vexari pro eadem causa;' and what is the same cause of action is where the same
evidence will support both actions."Interest reipublicoe ut sit finis litium." But a judgment
rendered without jurisdiction does not establish the plea res judicata.

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Identity of Parties and Causes ofAction.

It is only when the causes of action in two suits are identical that the recovery of judgment in one
can be a bar to the other. A judgment in an action against the lessee for a breach of the covenant
to pay rent is not a bar to an action for damages for negligence in the care of the premises.
It is generally true that where a party, claiming to have been injured, has an option of using one
of several modes of legal redress, elects to take one, which is adequate, and prosecutes the same
to a final judgment, lie cannot subsequently resort to another legal proceeding for the same
wrong. But if he seeks in vain to rescind a contract, for fraud, he may subsequently sue for
damages.
However, the subject-matter may be the same,. but the causes of action (and not merely the
forms of procedure) may be different. Therefore judgment in an action for false imprisonment
may not be a bar to an action for malicious prosecution arising from the same state of facts." A
fortiori, this is true where the wrongful conduct may be the same, but the parties to the judicial
proceeding are different, or parties claim under different rights.; The mere fact that the injured
person at the time of recovery of judgment did not recover all the damage consequent upon the
wrong, will not save him from the bar of the first judgment. Thus, where, after the first judgment
was rendered in an action of assault and battery, a piece of the injured person's skull came out,
the original judgment was a bar to another action. But the repetition of a trespass or the
continuance of a nuisance may constitute a new cause of action. The test is whether, on the cause
alleged in the action on which the judgment is founded, the damage sued for in the second could
have been recovered.

Final Judgment on the Merits

A mere common-law nonsuit is not a determination of the cause on the merits, and therefore
does not bar another action; nor does a judgment of dismissal, on the plaintiff's own motion,
without the defendant's consent, bar another action for the same purpose." If, before the final
submission of the case to the jury, the court dismiss it, this, it seems, is a common-law nonsuit,
and does not bar subsequent action. No judgment operates as an estoppel unless it is a judgment
on the merits.

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BY DEATH
At common law, liability in tort was discharged by the death of either the person who did the
wrong or the person who suffered the wrong.
At common law, the right of action for an injury to the person abates upon the death of the party
injured, the case falling within the familiar rule, "Actio personalis moritur cum persona." Hence,
where death results, whether instantaneously or not, from such an injury, no action can be
maintained by the personal representative of the party injured to recover damages suffered by the
decedent. Liability was likewise discharged when the tortfeasor died. The reason given by
Blackstone1 “is that "neither the executors of the plaintiff have received, nor those of the
defendant have committed, in their own personal capacity, any manner of wrong or injury.
Process in tort was a substitute for private war, and was against the man, not against the estate. If
one doth a trespass to me, and doth, the act is dead also, because it should be inconvenient to
recover against one who was not a party to the wrong.”
EXCEPTION
A number of early English statutes modified the rule so far as to allow executors or
administrators the same action for injury done to the personal estate of the deceased in his
lifetime, whereby it has become less beneficial to executors or administrators, as the deceased
might have had. This right was extended to cases where injury was done to the freehold of the
person who subsequently dies. Apart from these statutes, a remedy for the wrongful act can be
pursued against the estate of the person by whom the act was committed when the property or
proceeds of the property belonging to another have been appropriated by the deceased person.
Indeed, the English courts have gone very far towards limiting the discharge by death to cases of
mere personal torts.
ACTION UNDER CONTRACT
The rule that the cause of action came to an end with the death of either parties did not apply to
apply to an action under the law of contracts. Contractual obligations could be enforced by or
against the legal representatives of the parties to the contract. In case of contracts of personal
service, such as painting of a picture, however, the legal representatives could not be bound. The
Section 37 and 40 of the Indian Contract act also make a similar provision.

1
3 Black Stone, Commentaries on the Laws of England 302

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Section 37 of The Indian Contract Act, 1872 2

Obligation of parties to contract.—The parties to a contract must either perform, or offer to

perform, their respective promises, unless such performance is dispensed with or excused under
the provisions of this Act, or of any other law. —The parties to a contract must either perform, or
offer to perform, their respective promises, unless such performance is dispensed with or
excused under the provisions of this Act, or of any other law.”

Section 40 of The Indian Contract Act, 1872 3

Person by whom promise is to be performed.—If it appears from the nature of the case that it
was the intention of the parties to any contract that any promise contained in it should be
performed by the promisor himself, such promise must be performed by the promisor. In other
cases, the promisor or his representative may employ a competent person to perform it. —If it
appears from the nature of the case that it was the intention of the parties to any contract that any
promise contained in it should be performed by the promisor himself, such promise must be
performed by the promisor. In other cases, the promisor or his representative may employ a
competent person to perform it.”

UNJUST ENRICHMENT OF TORTFEASOR’S ESTATE

If someone, before his death wrongfully appropriated the property of another person, the law did
not allow the benefit of that wrongfully, appropriated property to pass on to the legal
representatives of the deceased. The person entitled to that property was entitled to bring an
action against the legal representatives of the deceased and to recover such property or its value.
The idea behind the rule was that only what actually belonged to the deceased should constitute
his estate and his estate should not be unjustly enriched by what does not belong to him.

2
Indian Contract Act, 1872 , No. 9 of year 1872 (india)
3
ibid

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THE LAW REFORM (MISCELLANEOUS PROVISIONS) ACT, 1934 AND THE POSITION
OF MAXIM.
The common law rule was abrogated by passing of The Law Reform (Miscellaneous Provisions)
Act, 1934
Section 1(1) of the Act provides that:
“On the death of any person… 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”
The act recognizes an exception in respect of cause of action for defamation in which case the
cause of action comes to an end, on the death of either of the parties.
Thus passing the above given act the general rule is that if a cause of action comes in to
existence in the life time of the parties, the death of either of the parties does not affect the cause
of action.

STATUTES OF LIMITATION
Liability for torts is discharged or barred by the running of the statute of limitations. The statute
begins to run against a cause of action in tort-
a) From the time the law presumes damage; or
b) From the time of the happening of damage, when not presumed, except in case of fraud.

Both the cases to which a statute of limitations is applicable and the time it begins to run depend
in a large measure upon the construction of the particular enactment under consideration. This
will account for much, but not for all, of the confusion on the cases on this point. The statute of
limitations of the forum governs, unless the statute giving the right of action prescribes the
limitation But it is a general principle, of common application to statutes of limitations as to
contracts and torts, that the bar commences when the cause of action accrues Accordingly, in the
case of a single trespass to land, inasmuch as the law presumes damages the moment the close of
another is broken, the running of the statute commences then. In conversion, the statute runs
from the time of the conversion, whenever that may be. Where a demand is necessary to
constitute a conversion, the statute runs from the time of demand. In the case of any other
improper interference with property, prescription runs against an action for damage from the
time of trespass. On the same principle, the statute of limitations begins to run against an action

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for damages by a father for the seduction of his minor daughter from the time of the seduction,
that being the cause of action; Subsequent results not giving a new cause of action, but only
affecting the damages."' In many actions on quasi tort, the cause of action arises, and the statute
commences to run, upon the breach of the contract.
If, however, the cause of action cannot, under any circumstances, rest on the doing of the thing
alone, but depends also, necessarily, upon the resulting damage, then the statute commences to
run, not from the time of the wrongful conduct, but of the occurrence of the harm. Thus, where
one owned houses built upon land contiguous to the land of other persons, and the owner of the
mines under the land of all these persons so worked the mines that the land of one of such other
persons sunk, and, after more than six years (the period of limitation in actions on the case), their
sinking caused an injury to the plaintiff's houses, it was held that his right of action was not
barred, as the tort to him was the damage caused by the working of the mines, and not the
working itself. So, in ordinary actions for negligence, the cause of action and the running of the
statute date from damage, not from the conduct. In cases of actual fraud, the usual rule is that the
statute of limitations against judicial action commences to run at the time of the discovery of the
wrong, or at the time when the injured party was, .by circumstances, sufficiently put upon such
inquiry that he could and should have discovered the wrong, but not from the time of the wrong,
or of the harm suffered. But the statute begins to run against an action to recover money obtained
by a constructive fraud from the date of act committed.

COMPLIANCE WITH STATUTORY REQUIREMENTS

Compliance with statutory requirements may constitute a full discharge of a tort. As has been
considered, no action lies for damages incident to authorized act. On the same principle, if an
alleged wrongdoer has complied with specific requirements of law as to the conduct resulting in
damage complained of, no action lies. The cases in which such matters arise are almost always in
connection with specific wrongs; so that they must be dismissed here with mere reference. An
illustration of a limitation before damage is to be found in the multitude of enactments that an
innkeeper is not liable for the loss of his guests' valuables, not delivered to him, if he has
provided a safe and suitable place in the office for their keeping, and has posted notice so
advising the guests. An illustration of discharge after damage occurs is the common legislative

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provision that a newspaper which has published a libel may rid itself of at least a portion of its
responsibility by publishing a retraction.

CASE LAWS

Balbir Sing Makol v. Chairman, Sir Ganga Ram Hospital

FACTS
The complaint has been filed by the parents for late Manpreet Singh Makol who is alleged to
have been the victim of medical blunder committed by Dr. J.S. Makhani, Senior Orthopaedic
Consultant, Sir Ganga Ram Hospital. According to the Complainant his son was a patient of
Osteosercoma upper end tibia. The malignant tumor was suspected at the very initial stage and
radio therapy and open biopsy was advised by the Doctors of PGI, Chandigarh. The Complainant
on the advise of Dr. M.P. Singh of General Hospital, Chandigarh, consulted Dr. Makhani,
Opposite Party No.2, herein, for second opinion. On the advice of Dr. Makhani, Opposite Party
No.2, the Complainant's son was admitted in the Ganga Ram Hospital, Opposite Party No.1 on
27.7.1989 and bone grafting was done on 28.7.1989. The patient was discharged on 2.8.1989
with the biopsy report 'awaited'. The Complainant was pacified when he questioned the Doctors
about the doing of bone grafting without the biopsy report. The Complainant was told by the
Doctors of the Ganga Ram Hospital, Opposite Party No.1, that there was no such disease, i.e.
'osteoblastoma' as diagnosed by the Doctors of PGI, Chandigarh. According to the Complainant
amputation was done on 26.10.1989 and his son succumbed on 3.8.1990. After this unfortunate
incident, he had submitted a memorandum to the cancer research review programme held at PGI,
Chandigarh and had written to the Tata Cancer Institute, Bombay, according to whom, the only
treatment was mid-thigh amputation. According to the Complainant the bone grafting to a patient
of osteosarcoma was a criminal act on the part of the part of the doctors who operated upon the
patient. The Complainant in his complaint alleges that the Doctors knowingly, deliberately and
intentionally gave wrong treatment to make money. According to him, had his son been given
proper services, the life of his son would have been saved. According to the Complainant, he had
made various representations to the Indian Medical Association, to the Secretary, Medical, Delhi
Administration and to the Lt.Governor, Delhi and so far, he had not received any reply to any

18
one of them. Apart from that, he had also sent representations to the Prime Minister and to
various Ministers. He alleges that simple leg amputation could have saved his life and unwanted
bone grafting and delayed amputations caused the Complainant and his wife a precious life.

HELD

"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."

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E.I. Ltd. And Anr. vs Klaus Mittelbachert (Deceased)

FACTS
On 11.8.1975 Kalus Mittelbachert, a national of the Federal Republic of Germany and employed
as a Co-Pilot by Deutsche Lufthansa Aktiengesellsschaft, a company organized under the laws of
the Federal Republic of Germany filed a suit for the recovery of damages to the extent of Rs. 50
lacs against the defendants/appellants, inter alia, alleging that in the evening of 11.8.1972 he flew
into New Delhi from Bangkok with flight Lufthansa 647 and was to continue to Frankfurt with
flight Lufthansa 649 on 14.8.1972. The plaintiff checked in an stayed at the appellants hotel. As
a part of the hotel the residents were offered facility of a Swimming Pool equipped with a diving
board. In the afternoon of 13.8.1972 the plaintiff visited the pool with the purpose of using it. At
about 6 p.m. he took from the diving board thereof a dive into it. However, he hit his head on the

4
E.I. Ltd. And Anr. vs Klaus Mittelbachert (Deceased) , 2002 ACJ 549, AIR 2002 Delhi 124, 95 (2002) DLT 617,
2002 (62) DRJ 476

19
bottom thereof and became unconscious. He was pulled out of water. He was bleeding from the
right ear and was admitted to Holy Family Hospital. He remained admitted and under treatment
till 21.8.1972 on which day he was flown to Germany under medical escort. On 22.8.1972 the
plaintiff was admitted for treatment at the Orthopaedic Clinic and Polyclinic of the University of
Hoidelberg. Treatment continued and ultimately on 24.3.1973 the plaintiff was discharged from
the clinic. Though further treatment continued but the condition of the plaintiff did not improve.
The plaintiff in the plaint narrated details of the physical sufferings he had to undergo. He also
referred to the expert opinion about disability suffered by him stating that he had undergone
immense pain and sufferings and been deprived permanently of enjoyment of life. In this back
ground, the plaintiff alleged that the accident was caused by what in the circumstances amounted
to a trap. The diving board being placed where it was, was a suggestion that there was proper
depth of water into which to dive. However, this was not the case. The defendants owned the
plaintiff a duty to ensure his safety and having failed therein have been guilty of negligence and
are, therefore, liable for the consequences of the said accident for which the plaintiff claimed Rs.
25,000/- on account of doctors services and hospitalisation in India along with DM 56,22,500.00
(equivalent to Rs. 1,91,24,150.00 at the rate of exchange prevailing at the time of filing of the
suit) on account of damages and various other counts. The plaintiff, however, restricted his claim
to Rs. 50 lacs as on the date of filing of the suit towards damages reserving his right to enhance
the claim, should the value of the Indian rupee in relation to the Berman Mark deteriorate
between the time of the filing of the suit and payment of damages

HELD
It was held that the plaintiff’s suit abated on his death and his legal representatives had no right
to pursue the case and could not seek substitution in this case. The earlier single judge decision
granting compensation was reversed.

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Rose V. Ford (1937)
FACTS
A girl of 23 years was severely injured by an by accident caused by the negligence of the
defendant. She was asked to do an operation and this lead to the amputation of her leg and four
days after the accident, she died.
HELD
The father of the girl was entitled to claim compensation for the benefit of her estate on account
of pain and suffering loss of her leg and diminution in the exception of her life.

Nrusingha Charan Prusti Vs Ratikanta Mohanty 5

FACTS
One Nrusingha Charan Prusti took lease of a house on the strength of Ext. 2 on 15-3-1966 on a
monthly rent of Rs. 45/- from one Duryodhan Mohanty who posed himself as the landlord in
respect of that house. This Duryodhan also received a sum of Rs. 540/- in advance from the
tenant Nrusingha who is the petitioner in this civil revision. As it appears, Nrusingha
subsequently realised that Duryodhan was not the real landlord in respect of the house, but it was
Adwait, his full brother. So Nrusingha obtained a sale deed in the name of his wife on 29-7-1966
from Adwaita and thereafter refused payment of rent to Duryodhan. Nrusingha further filed a
Money Suit No. 22 of 1968 claiming the advance of Rs. 540/- paid to Duryodhan with twelve per
cent interest as damages. This suit was decreed in his favour by the Munsif, Baripada on 6-12-
1975 with six per cent interest as damages over the advance of Rs. 540/-. Consequently the
landlord Duryodhan filed Money Appeal (No. 1/1-M of 1976) on 9-1-1976 before the
Subordinate Judge, Baripada, who reversed the judgment of the Munsif on 11-3-1977 on the
ground that Adwaita's title cannot be determined in the money suit and more so when he was not
a party in the money suit. Further he held that there was no case of fraud as alleged by the
plaintiff and that during the continuance of tenancy, a tenant, as the plaintiff admittedly was,
cannot challenge the title of the landlord under the provisions of Section 116 of the Evidence
Act. It is as against that judgment of the Subordinate Judge reversing the Munsif's judgment that
the tenant Nrusingha has filed this civil revision. Be it stated here that Duryodhan the landlord

5
Nrusingha Charan Prusti V Ratikanta Mohanty, A.I.R 1978 Ori 217

21
who admittedly inducted Nrusingha into the house died during the pendency of the money appeal
before the Subordinate Judge and his son Ratikanta Mohanty has been substituted on 11-1-1977 -
- vide order No. 22. The judgment of the Subordinate Judge reversing the Munsifs judgment and
decree is dated 11-3-1977, that is, by the time Duryodhan was no more alive.
HELD
The liability of Ratikanta does not exist. Whatever relief the plaintiff had against Duryodhan
under tort that ended with the death of Duryodhan and cannot subsist against his successors .

Zargram Abbas V. Hari Chand6

FACTS
There had been litigation between Hari Chand and his sons and grand-sons on the one hand and
Zargham Abbas and his sons on the other. The dispute between them related to dolbandi of the
boundaries of their lands. Zargham Abbas, the first appellant in this Court, since deceased and
now represented by his legal representatives, lodged a first information report at the police
station Jani with the allegations that on 17th May, 1967 while his son Ali Abbas was tending the
garden at about 7 in the morning, Hari Chand and his son Satya Prakash went there and beat Ali
Abbas with a khurpa; that on the raising of alarm by Ali Abbas, some people arrived who
rescued him; that Ali Abbas then went to the house of Shaukat Husain; that when news reached
Zargham Abbas, he went there with his sons and was taking Ali Abbas to the police station on a
bus; that while he was on his way to the police station Hari Chand with his three sons Satya
Prakash, Chuttan Lal and Sunder Lal, and grand-sons Ghasi Ram and Raja Rani, came armed
with lathis and entered the house of Zargham Abbas where his daughters were living, and tried to
force their entry into the house but the daughters bolted the door from inside and the said persons
could not harm them because of the arrival of the witnesses. Hari Chand, his sons and grand-
sons, were thereupon prosecuted for offences under Sections 147 and 452 of the Indian Penal
Code. There was a compromise between the parties but the offence under Section 452 of the
Indian Penal Code could not be compounded and the learned Magistrate proceeded with it. The
prosecution resulted in the acquittal of Hari Chand and his sons and grand-sons. The only point

6
Zargram Abbas V. Hari Chand, A.I.R 1980 S.C 256 (India)

22
considered by the lower appellate court in this case was whether the prosecution of the
defendant-respondents was malicious, false and without reasonable and probable cause.

HELD
“In the result all the six appeals must succeed and are allowed. The decrees under appeal in all
the six cases are set aside and all the six suits are dismissed but in the circumstances there will be
no order as to costs, in any of these cases, and each one of the parties shall bear their own
respective costs throughout.”

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CONCLUSION

Thus as discussed above the liability of torts can be discharged by various ways as like voluntary
act of parties and by action of law. The voluntary act of parties includes by waiver and by
agreement and the action of law includes discharge by judgment, death, statutes of limitation and
compliance with statutory requirements.

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BIBLIOGRAPHY
.
BOOKS
Ratanlal and Dhirajlal The Law of Torts
Winfield and Jolowicz on Tort

WEBSITES

https://www.heinonline.org/

https://www.westlaw.com/

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