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Report No. 3

Chapter V

Suits Founded on Tort

108. What has been stated in paragraphs 64 and 69 above, applies equally to the Articles governing suits on tort. It will be found from the discussion which follows that all the Articles relating to suits on torts can be grouped together and brought under one head, providing a period of three years limitation from the date of the accrual of the cause of action. These Articles are: Articles 2, 19 to 29 and 32 to 42.

109. Article 2.-

Article 2 is for a suit for compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in India. The period of limitation is 90 days and time begins to run when the act or omission takes place. This Article is intended to cover the case provided for in England, by section 8 of the Public Authorities (Protection) Act, 1893. The t :ovisions therein are somewhat elaborate and the period of limitation is six months. The object of the Legislature in England and in India seems to be to provide a shorter period of limitation in the case of actions against public authorities for any act done in pursuance or execution or intended execution of any Act or of public duty, or authority, or in respect of any neglect or default in the execution of such Act, duty or authority.

It protects the public authorities by providing a shorter period of limitation. It has been held that so long as the officer concerned acts honestly and bona fide, he gets the advantage of the shorter period of limitation. If the statute authorises the injury, no action lies. If an officer purporting to act, in pursuance of a statute, does something which causes an injury or by reason of his omission to do an act an injury results, the person so injured is entitled to claim compensation for the neglect or default. If he abuses the power, the shorter period of limitation will not apply and the action will be outside the Article. The law in England was altered by the Limitation Act of 1939 (section 21) which provided a period of one year instead of six months.

Time was made to run from the date of the accrual of the cause of action instead of from the act or neglect or default complained of, as under section 8 of the Public Authorities (Protection) Act. Owing to public agitation, the English Limitation Act was amended in 1954 and the period of limitation was increased to three years for actions relating to personal injuries. By the amending Act, section 21 of that Act was repealed and a proviso to sub-section (1) of section 2 was added, cutting down the period of six years, which applies for actions founded on torts, to three years in such cases. The period, therefore, under the English law for actions on tort as respects personal injury, whether caused by a private individual or by a public authority, is now three years instead of six years as in the case of other actions based on tort.

This Article would come under the general provision for all suits on tort for which we propose to prescribe a period of 3 years from the date of accrual of the cause of action. There does not seem to be any justification for making a distinction between public authorities and a private citizen except in matters like notice under section 80 C.P.C. Further, if a shorter period for suits against public authorities is prescribed, it will compel parties to rush to a suit without exhausting the possibility of getting redress by negotiations which necessarily take time. One of us, Dr. Sen Gupta, is inclined to take a different view and has added a separate note to this Report on the subject. After a full consideration of his views we think that the consideration mentioned above in favour of a uniform period for suits against public authorities and private citizens should prevail and that no change is needed in the proposals suggested above.

110. Article 19.-

Article 19 provides for suits for compensation for false imprisonment, a period of one year from the time the imprisonment ends. This is a suit based on tort. It is a continuing wrong within the meaning of section 23 of the Limitation Act and terminus ad quem is reached when the imprisonment ends.

111. Article s 20, 21, 33, 34 and 35.-

Articles 20, 21, 33, 34 and 35 may be considered together.

112. The Maxim of English law "actio personalis moritur cum persona" has been modified in India by various Acts. The Fatal Accidents Act provides that in the case of death of a person injured by a wrongful act, neglect or default, a right of suit accrues to recover damages for the benefit of the wife, husband, parent and child, if any of the person who dies. But the suit has to be instituted in the name of the executor, administrator or representative of the deceased person. Under the Legal Representatives' Suits Act, XII of 1855, the executor, administrator or representative of any deceased person has been given a right to bring a suit for a wrong committed in the life time of such person which occasioned pecuniary loss to his estate, provided the suit was in respect of a wrong committed within one year before the death.

Death will not abate any cause of action relating to loss or damage to property. The damages recovered form part of the estate of the deceased. A suit may be maintained against the executor, administrator or representative of the deceased for any wrong committed by him in his lifetime for which he would have been subject to an action if the wrong was committed within one year before his death. Section 2 of that Act further provides that the death of either party to a suit shall not abate the suit. Section 306 of the Indian Succession Act provides that the right to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his death survives to and against his executor, administrator or representative.

But an exception is made in respect of a cause of action based on defamation, assault as defined in the Indian Penal Code, or other personal injury not causing the death of the party. In England, until recently, the maxim above referred to applied generally till it was abrogated by the Law Reform (Miscellaneous Provisions) Act, 1934. But even under this Act, a cause of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other and for damages on the ground of adultery were excepted. The law, therefore, both in England and in India at the present moment is more or less the same. The difference lies only in the exceptions existing under the Indian law and the English law.

113. Article 20 relates to a suit filed by a legal representative on torts causing pecuniary loss to the estate while Article 21 relates to a suit filed by a legal representative for damages for death, which has to be a representative action. The other group of Articles, 33, 34 & 35 relate to suits' against the legal representatives. Under Articles 20 and 21, the date of death of the person is taken as the starting point of limitation. Under the Fatal Accidents Act, the suit is for damages for causing death by any wrongful act, neglect of default and the suit is for the benefit of the dependants.

The suit under the Legal Representatives' Suits Act is restricted to wrongs which occasion pecuniary loss to the estate of the deceased and the cause of action in respect of which according to the law then prevailing did not survive. Under the Succession Act, all rights of action survive to the executors or administrators except actions for defamation, assault or personal injuries not causing the death of a party. The substantive law preventing the abatement of the cause of action is laid down by the said Acts. The cause of action under the Fatal Accidents Act is the death and time under Article 20 begins to run from the date of the accrual of the cause of action. However, under the Legal Representatives' Suits Act, as the suit is in respect of a wrong committed in the life time of a person but time is made to run from the date of the death, the running of time does not synchronise with the date of accrual of the cause of action.

On the other hand, under Articles 33 & 35, a period of 2 years is provided which runs from the date when the wrong complained of is done. This synchronises with the date of the accrual of the cause of action. The suits contemplated under the two Acts, i.e., Legal Representatives' Suits Act and the Fatal Accidents Act relate to torts. No special period of limitation is provided for actions contemplated by section 306 of the Succession Act, as it was assumed that the provisions laid down in the Limitation Act will govern such actions.

114. A provision for the survival of the right of action having been made, the action may be treated as one founded on tort whether it is by or against an executor, administrator or representative and the time for limitation may be made to commence with the accrual of the cause of action. If a period of three years from the accrual of the cause of action is provided no hardship will be caused to either party. In view of the proposed period of 3 years from the date of accrual of the cause of action the period of one year before death provided in the Legal Representatives' Suits Act will have to be abrogated. It may be observed here that instead of leaving the question of survival of the cause of action to be dealt with by three separate Acts a consolidating amendment in an appropriate manner may be made in section 306 of the Indian Succession Act.

115. There is also a conflict of aeisions under section 306 of the Indian Succession Act as to whether a right to an action for malicious prosecution is one relating to personal injury not causing the death of the party and whether it survives. This conflict may be set at rest by specifically bringing within the exception to section 306 of that Act, actions for malicious prosecution if it is intended that the cause of action in respect of such wrongs should not survive the death of the person aggrieved.

116. Article s 22-25.-

Article 22 is the residuary article for suits for compensation for any other injury to the person and time starts when the injury is caused. The period of limitation is one year. Article 23 is for compensation for malicious prosecution and time starts when the plaintiff is acquitted or the prosecution is otherwise terminated, the period again being one year. Article 24 relates to an action for libel and the period of limitation is one year from the time when the libel is published. Article 25 relates to slander and the period provided for is one year from the date when the words were spoken or, if the words are not per se actionable when the special damage complained of results.

It is settled law that the cause of action for libel accrues from the date of the publication of the defamatory statement. When slander is actionable per se the cause of action is its publication and time runs from that date. If the action is maintainable only on proof of special damage, the happening of the damage is the cause of action. (See Burry v. Perry, 1775 Raym 1588 and also Darley Main Colliery Co. v. Thomas Wilfrid), (1886) 11 AC 127 In respect, therefore, both of libel and slander, the time from which limitation runs coincides with the accrual of the cause of action. The suits under all these Articles are suits founded on tort and a uniform period of three years may be fixed for the institution of these suits, time running from the date of the accrual of the cause of action.

117. Article s 26 & 27.-

Article 26 is for compensation for loss of service occasioned by the seduction of the plaintiff's servant or daughter; the period is one year and time begins to run when the loss occurs. This also is a suit based on tort and so it may be brought under the uniform period of three years. Under the present law limitation starts when the cause; of action accrues. These observations apply to Article 27.

118. Article s 28, 29 & 32.-

Articles 28, 29 & 32 are for suits based on tort and there is no reason why they should not be brought under the general category of torts and the period of three years applied to them. The dates in column three coincide with the dates of accrual of the causes of action.

119. Article 36.-

Article 36 is a residuary article. It relates to suits for compensation for any malfeasance, misfeasance or nonfeasance independent of contract and not specially provided for and time starts when the malfeasance, misfeasance or nonfeasance takes place. This corresponds to the time of accrual of the cause of action. These suits will be governed by the proposed general Article for suits on contracts and torts providing a period of three years.

120. Article s 37 to 42.-

Articles 37 to 42 relate to suits founded on tort and a period of three years is prescribed. The date of accrual of the cause of action and the date from which time begins to run coincide.



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