Report No. 111

1.3. Effect of death on causes of actions-two aspects.-

Legislation of the nature under consideration belongs primarily to the realm of torts (though not exclusively so), and is concerned with the effect of death as creating tortious liability. It may be useful to point out that in the law of torts, death might operate into different directions. Death may extinguish a cause of action or it may create one. The first aspect is concerned with the questions "How far does a cause of action survive the death of the person wronged or the wrong-doer?" In Indian statute law, this subject is dealt with primarily in the Succession Act,1 which provides for the survival, on death, of most causes of action.

In relation to the second aspect of deat.- namely, death as creating a cause of actio.- the question to be considered is: "How far does one person have an interest in the life of another so that the law gives him a cause of action on the death of the other?" In India, this question is dealt within the Act under discussion, that is to say, the Fatal Accidents Act. The two questions mentioned above are, in essence, distinct from each other. The first question is primarily of an adjective nature, concerned as it is with the effect of death on an existing cause of action. The second question is of a substantive nature, concerned as it is with the creation of a new cause of action. In the present study, we are concerned with the second question.2

1. Section 306, Indian Succession Act, 1925.

2. See also para. 1.10, infra.