Law of Torts
TORT 087 Death and Tort Actions Actio Personalis Survival and Fatal Accidents
Death and Tort Actions: Actio Personalis Moritur Cum Persona, Survival of Causes of Action, and the Fatal Accidents Act, 1855
A death raises two quite separate questions, and they have different answers. The first is whether a cause of action already existing survives the death of either party, which is governed by section 306 of the Indian Succession Act, 1925. The second is whether the death itself gives a fresh cause of action to those who depended on the deceased, which is governed by the Fatal Accidents Act, 1855. At common law the answer to both was no, under the maxim actio personalis moritur cum persona, with the notorious consequence that it was cheaper to kill a man than to injure him.
The maxim and its statutory answer, the dependency claim, what is recovered, and the particular cases
1. Actio Personalis Moritur Cum Persona
- A personal action dies with the person. At common law the death of either party extinguished a cause of action in tort: the injured man could not sue if the wrongdoer died, and his representatives could not sue if he did.
- The reasons were historical. Tort was closely allied to the criminal law, and the object of the early actions was punishment as much as compensation. Where the wrongdoer was dead there was nobody to punish, and where the victim was dead there was nobody to console.
- The rule produced the notorious result that it was cheaper to kill than to injure. A defendant whose negligence maimed a man faced a claim for the whole of his losses; a defendant whose negligence killed him faced nothing at all.
- It has been substantially abrogated by statute, and what survives of it is the narrow exception in section 306 and the rule that a defamation action does not survive.
2. Survival of Causes of Action
Section 306, Indian Succession Act, 1925 All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators. Except causes of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries not causing the death of the party. And except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory. |
The cause of action | Does it survive |
Damage to property | Yes. The claim passes to and against the estate |
Conversion and trespass to goods | Yes |
Trespass to land | Yes |
Personal injury that caused the death | Yes. The exception is confined to personal injuries not causing the death |
Personal injury not causing the death | No. The claim dies with the injured person |
Defamation | No |
Assault | No |
A claim for an injunction the deceased alone could enjoy | No, the relief being nugatory |
- The critical distinction is between an injury that caused the death and one that did not. Where the tort killed the victim, the claim survives to his estate; where he died of some unrelated cause before judgment, it is extinguished.
- That distinction is the surviving fragment of the old maxim, and it has been criticised for a century, since it means that a plaintiff who is seriously injured and then dies of an unconnected illness leaves his family nothing for the injury.
- In Kumud Lall v. Suresh Chandra Roy, decided on 4 May 2026, the Supreme Court referred the working of section 306 to the Law Commission of India for examination.
- The subject is examined alongside joint and independent tortfeasors in TORT 016.
3. The Dependency Claim
The Fatal Accidents Act, 1855 Section 1A: 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. 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. In every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought. Section 2: not more than one action or suit shall be brought in respect of the same subject matter of complaint. The executor, administrator or representative may also recover damages for any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default. |
- The Act creates a new cause of action, and does not continue the deceased's. It belongs to the dependants and is measured by their loss, not by his.
- The wrongful act must be one that would have entitled the deceased to sue had he lived. So any defence available against him, such as his own contributory negligence, operates against the dependants.
- The persons for whose benefit the action lies are the wife, husband, parent and child, and parent and child are defined to include grandparents and grandchildren and step relations.
- Only one action may be brought, and the damages are apportioned among the beneficiaries.
- Section 2 preserves a separate claim for loss to the estate, which is distinct from the dependency claim and is brought by the representative in that capacity.
- In a motor accident the claim is made under the Motor Vehicles Act, 1988 before the Tribunal, which has largely displaced the 1855 Act in practice, though the principles are the same.
4. What Is Recovered
The head | To whom it belongs |
Loss of dependency | The dependants. The pecuniary benefit they could reasonably have expected, computed on the multiplier method: TORT 084 |
Loss to the estate | The estate. A conventional sum, representing what the estate has lost |
Funeral expenses | Whoever incurred them |
Loss of consortium | Each dependant entitled to it, in its spousal, parental or filial form: TORT 085 |
The deceased's own pain and suffering before death | The estate, and not the dependants, since it is his claim surviving under section 306 |
Loss of expectation of life | The estate |
- The distinction between what belongs to the estate and what belongs to the dependants matters, because the estate's share passes under the will or on intestacy while the dependants' share is theirs directly.
- There must be no double counting. A sum awarded to the estate for lost earnings would duplicate the dependency award, which is why loss to the estate is kept as a small conventional figure.
5. The Particular Cases
The deceased | How the claim is framed |
A breadwinner | The ordinary case, and the one the multiplier method was designed for: income, future prospects, deduction for personal expenses, multiplier, and the conventional heads |
A child | There is no dependency, since the child was contributing nothing. The award rests on filial consortium, loss of estate and funeral expenses, together with a notional figure for the loss of prospective support |
A homemaker | Her services are valued and not treated as nil. The measure is what it would cost to replace them: household work, childcare and the management of the household |
An unmarried adult | Dependency of parents and, where established, of siblings, with the deduction for personal expenses at fifty per cent, and filial consortium |
A pensioner or an elderly person | Dependency may be limited, and the multiplier low. The conventional heads and consortium remain |
6. Death from Particular Causes
- Death due to a motor accident is claimed before the Motor Accident Claims Tribunal under section 166, or under section 164 for the no fault sum: TORT 083.
- Death due to medical negligence is claimed before a consumer commission or by civil suit, on the principles in TORT 043, where the leading authorities on quantum are Nizam's Institute and V. Krishnakumar.
- Death due to the negligence of the State is claimed in the ordinary way, or, where a fundamental right has been violated, as a constitutional tort under Article 32 or Article 226: TORT 053 and TORT 054.
- Death of a workman in the course of employment is claimed under the Employees' Compensation Act, 1923, which operates on a no fault basis and is an alternative to the tort claim rather than an addition to it.
⚠ Why the two questions must be kept apart Students and practitioners regularly conflate the survival of a cause of action with the dependency claim, and the confusion produces real errors in pleading. They are different in every respect. The survival question asks whether a wrong done to the deceased, for which he could have sued in his lifetime, can still be pursued; the claim is the deceased's, it belongs to his estate, and it is measured by his loss, including the pain he suffered before he died. The dependency question asks whether the deceased's death has caused a loss to those who relied on him; the claim is theirs, it does not pass under his will, and it is measured by what they have lost. Both may arise on the same facts: a man injured by negligence who dies of those injuries leaves his estate a surviving claim for his own suffering and medical expenses, and leaves his family a fresh claim for their dependency. A plaint that pleads one and not the other gives up a head of compensation, and a plaint that pleads both without distinguishing them invites a finding of double counting. |
7. The Position Stated Shortly
1. Actio personalis moritur cum persona meant that at common law the death of either party extinguished a cause of action in tort.
2. The rule produced the result that it was cheaper to kill than to injure, and has been substantially abrogated by statute.
3. Section 306 of the Indian Succession Act, 1925 provides that all demands and rights of action survive to and against the executors or administrators.
4. The exceptions are defamation, assault as defined in the Indian Penal Code, other personal injuries not causing the death, and cases where the relief would be nugatory.
5. A personal injury that caused the death does survive; one that did not is extinguished, and in Kumud Lall v. Suresh Chandra Roy the Supreme Court referred the working of the section to the Law Commission.
6. The Fatal Accidents Act, 1855 creates a new cause of action in the dependants, measured by their loss and not by the deceased's.
7. The action lies for the benefit of the wife, husband, parent and child, only one suit may be brought, and section 2 preserves a separate claim for loss to the estate.
8. Any defence available against the deceased operates against the dependants, since the Act requires that he could have sued had he lived.
9. Loss of dependency, funeral expenses and consortium belong to the dependants; loss to the estate and the deceased's own pain and suffering belong to the estate.
10. Where a child dies there is no dependency, and the award rests on filial consortium, loss of estate, funeral expenses and a notional figure; a homemaker's services are valued and not treated as nil.