# Kumud Lall v. Suresh Chandra Roy (Dead) Through Lrs and Others

- **Citation:** 2026 INSC 443
- **Court:** Supreme Court of India
- **Decided:** 2026-05-04
- **Bench:** J.K. Maheshwari, Atul S. Chandurkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kumud-lall-v-suresh-chandra-roy-dead-through-lrs-and-others-39311
- **Pages:** 46

## Headnote

Issue arose whether, upon death of the doctor during pendency of
proceedings at appellate stage, the legal heirs can be impleaded
and held liable for the alleged act of medical negligence of the
deceased doctor, and if yes, then to what extent.
Headnotes†
Consumer Protection Act, 1986 - ss.13(7), 2(b)(v) - Consumer
Protection Act, 2019 - ss.38(12), 2(5)(vi) - Succession Act,
1925 - s.306 - Legal Representatives Suits Act, 1855 - Code
of Civil Procedure, 1908 - Ord. 22, r.4 - Continuation of 'right
to sue' - Death of the alleged medically negligent doctor -
Impleading of legal heirs - Complaint against the doctor by
the husband alleging deficiency in service by the doctor while
performing eye surgery of his wife, resulting in loss of her
vision - District Forum partly allowed the complaint holding
the doctor negligent for deficiency in service, and awarded
compensation - Appeal by the complainant-husband and the
doctor - State Commission dismissed the appeal filed by
the complainant, however allowed the appeal of the doctor
holding that in absence of expert evidence to substantiate
the allegation of medical negligence leading to loss of vision,
holding the doctor guilty for the same not sustainable - During
the pendency of the revision petition, the doctor passed away -
Complainant-husband filed application for substitution of legal
heirs (wife and son) of the doctor, which was allowed - Legal
heirs-appellant filed applications u/Ord.22 rr.1 and 2 CPC,
praying to drop their names from the proceedings, which was
dismissed - Correctness:
* Author
302
[2026] 5 S.C.R.
Supreme Court Reports
Held: The 1986 Act with 2019 Act, by expressly providing for
legal representative for complainant/consumer, the legislative
intent is clear, that the claim of the complainant shall not
automatically perish upon his death and shall survive through
his legal heirs - Legal representative of the deceased can
institute a fresh suit or be sued afresh in terms of the 1855 Act
or in terms of s.306 - Continuation of suit by or against the
legal representative of the deceased has to be in terms of s.306
(substantive law) - Continuation of 'right to sue' u/Ord.XXII r.2 r/w
r.4 is to be seen on the date of death - Generally, all rights and
liabilities to maintain a suit are carried to the legal representative
u/s.306 - However, when adjudicating claims under 1st exception
to s.306, personal injury claims abate, while claims for or against
the estate of the deceased survive - In view thereof, death of
the alleged medically negligent doctor, his/her legal heirs can
be impleaded and brought on record - Extent of liability will be
determined based on the pleadings and evidence presented -
Complainant had succeeded before the District Forum and was
awarded compensation - However, when taken in appeal by
doctor, the State Commission allowed the same and set-aside
the award - Aggrieved, the complainant preferred revision
before National Commission, pending which, the doctor passed
away - As borne from records, 'right to sue' if any subsists qua
claims against the estate on the death of the opposite party in
terms of s.306 r/w Ord. XXII rr.2 and 4 - In order to establish the
claims, the National Commission duty bound to adjudicate the
negligence aspect, if any by the deceased doctor and resultantly
adjudicate the surviving claims - Question as to what claim can
be attributed to the accretion of the deceased defendant's estate
needs to be carefully analyzed by NCDRC, depending upon
pleadings and proof brought before the Court - Claimant has the
duty to first establish the negligence of the deceased doctor and
the claims on the estate recoverable as per s.306 - Impugned
order confuses claims attributable to estate and holds that any
adjudication on merits can be recoverable from the estate of
the deceased doctor - Rather, the Court has to only look at
claims which are maintainable as against the estate, rather than
adjudicating personal claims which have elapsed wi

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[2026] 5 S.C.R. 301 : 2026 INSC 443
Kumud Lall
v.
Suresh Chandra Roy (Dead) Through Lrs and Others
(Civil Appeal No(s). 6893-6894 of 2026)
04 May 2026
[J.K. Maheshwari* and Atul S. Chandurkar, JJ.]
Issue for Consideration
Issue arose whether, upon death of the doctor during pendency of
proceedings at appellate stage, the legal heirs can be impleaded
and held liable for the alleged act of medical negligence of the
deceased doctor, and if yes, then to what extent.
Headnotes†
Consumer Protection Act, 1986 - ss.13(7), 2(b)(v) - Consumer
Protection Act, 2019 - ss.38(12), 2(5)(vi) - Succession Act,
1925 - s.306 - Legal Representatives Suits Act, 1855 - Code
of Civil Procedure, 1908 - Ord. 22, r.4 - Continuation of 'right
to sue' - Death of the alleged medically negligent doctor -
Impleading of legal heirs - Complaint against the doctor by
the husband alleging deficiency in service by the doctor while
performing eye surgery of his wife, resulting in loss of her
vision - District Forum partly allowed the complaint holding
the doctor negligent for deficiency in service, and awarded
compensation - Appeal by the complainant-husband and the
doctor - State Commission dismissed the appeal filed by
the complainant, however allowed the appeal of the doctor
holding that in absence of expert evidence to substantiate
the allegation of medical negligence leading to loss of vision,
holding the doctor guilty for the same not sustainable - During
the pendency of the revision petition, the doctor passed away -
Complainant-husband filed application for substitution of legal
heirs (wife and son) of the doctor, which was allowed - Legal
heirs-appellant filed applications u/Ord.22 rr.1 and 2 CPC,
praying to drop their names from the proceedings, which was
dismissed - Correctness:
* Author
302
[2026] 5 S.C.R.
Supreme Court Reports
Held: The 1986 Act with 2019 Act, by expressly providing for
legal representative for complainant/consumer, the legislative
intent is clear, that the claim of the complainant shall not
automatically perish upon his death and shall survive through
his legal heirs - Legal representative of the deceased can
institute a fresh suit or be sued afresh in terms of the 1855 Act
or in terms of s.306 - Continuation of suit by or against the
legal representative of the deceased has to be in terms of s.306
(substantive law) - Continuation of 'right to sue' u/Ord.XXII r.2 r/w
r.4 is to be seen on the date of death - Generally, all rights and
liabilities to maintain a suit are carried to the legal representative
u/s.306 - However, when adjudicating claims under 1st exception
to s.306, personal injury claims abate, while claims for or against
the estate of the deceased survive - In view thereof, death of
the alleged medically negligent doctor, his/her legal heirs can
be impleaded and brought on record - Extent of liability will be
determined based on the pleadings and evidence presented -
Complainant had succeeded before the District Forum and was
awarded compensation - However, when taken in appeal by
doctor, the State Commission allowed the same and set-aside
the award - Aggrieved, the complainant preferred revision
before National Commission, pending which, the doctor passed
away - As borne from records, 'right to sue' if any subsists qua
claims against the estate on the death of the opposite party in
terms of s.306 r/w Ord. XXII rr.2 and 4 - In order to establish the
claims, the National Commission duty bound to adjudicate the
negligence aspect, if any by the deceased doctor and resultantly
adjudicate the surviving claims - Question as to what claim can
be attributed to the accretion of the deceased defendant's estate
needs to be carefully analyzed by NCDRC, depending upon
pleadings and proof brought before the Court - Claimant has the
duty to first establish the negligence of the deceased doctor and
the claims on the estate recoverable as per s.306 - Impugned
order confuses claims attributable to estate and holds that any
adjudication on merits can be recoverable from the estate of
the deceased doctor - Rather, the Court has to only look at
claims which are maintainable as against the estate, rather than
adjudicating personal claims which have elapsed with the death of
the doctor - Matter remitted to NCDRC to be adjudicated within
[2026] 5 S.C.R.
303
Kumud Lall v. Suresh Chandra Roy (Dead) Through Lrs and Others
the stipulated period - Impugned orders set aside. [Paras 35,
39, 40, 51, 56, 59, 64-72]
Maxim - Actio personalis moritur cum persona - Explained.
[Paras 25-27, 64]
Case Law Cited
Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair
[1985] Supp. 3 SCR 805 : (1986) 1 SCC 118; M. Veerappa v.
Evelyn Sequeira [1988] 2 SCR 606 : (1988) 1 SCC 556; State
of Punjab v. Gurdev Singh [1991] 3 SCR 663 : (1991) 4 SCC 1;
Indian Evangelical Lutheran Church Trust Association v. Sri Bala
& Co. [2025] 1 SCR 542 : 2025 INSC 42; Dahiben v. Arvindbhai
Kalyanji Bhanusali (Gajra) Dead Through Legal Representatives
[2020] 5 SCR 694 : (2020) 7 SCC 366; Vinayak Purshottam
Dube v. Jayashree Padamkar Bhat [2024] 3 SCR 127 : (2024) 9
SCC 398 - referred to.
G. Jayaprakash v. State of Andhra Pradesh, AIR 1977 (AP) 20;
Haridas Ramdas v. Ramdas Mathuradas (1889) I.L.R. 13 Bom;
Rustomji Dorabji v. W.H.Nurse, AIR 1921 Mad 1; Neeraj Amarnath
Dora v. Nandan Hospital and Others, II 2011 CPJ 171 (NC); Balbir
Singh Makol v. Chairman, M/s Gangaram Hospital and Others,
2001 (1) CPR 45 (NC) - referred to.
Hambly v. Trott, 1776 1 COWP 371; Phillips v. Homfray (1883) 24
Ch.D., 439; Cooke v. Gill (1873) LR 8 CP 107; Letang v. Cooper
[1965] 1 QB 232 - referred to.
Books and Periodicals Cited
Percy H. Winfield, 'Death as Affecting Liability in Tort', Columbia Law
Review, Vol. 29, No.3 (Mar., 1929), pp. 239-254; P.J. Fitzgerald,
Salmond on Jurisprudence, p. 238 (Universal Law Publishing Co.
Pvt. Ltd., 12th Edn., 1966); Whitley Stokes, Commentary on Indian
Succession Act, 1865, R. C. Lepage and Co., pg. 170 - referred to.
List of Acts
Consumer Protection Act, 1986; Code of Civil Procedure,
1908; Succession Act, 1925; Consumer Protection Act, 2019;
Civil Procedure Act, 1833; Administration of Estates Act, 1925;
Employer's Liability Act; Workman's Compensation Act, 1897;
304
[2026] 5 S.C.R.
Supreme Court Reports
Workman's Compensation Act, 1906; Fatal Accidents Act, 1846;
English Law Reform (Miscellaneous Provisions) Act 1935;
Indian Succession Act, 1865; Fatal Accidents' Act, 1855; Legal
Representatives' Suits Act, 1855; Probate and Administration Act,
1881; Kerala Torts (Miscellaneous Provisions) Act, 1976.
List of Keywords
Haryana Law Commission; Law Commission of India, 178th report;
actio personalis moritur cum persona; Right to sue ; Medical
negligence; Substitution of legal heirs; Cause of action; Legal
representative; Death of the doctor during pendency of proceedings
at appellate stage; Impleading of legal heirs; Continuation of 'right
to sue'; Deficiency in service by the doctor while performing eye
surgery; Loss of vision; Compensation; Absence of expert evidence.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No(s).
6893-6894 of 2026
From the Judgment and Order dated 24.05.2018 and 26.05.2010
of the National Consumers Disputes Redressal Commission, New
Delhi in MA No. 324 of 2011 and MA No. 1214 of 2009.
With
Civil Appeal No(s). 6895-6896 of 2026.
Appearances for Parties
Raghenth Basant, Sr. Adv./Amicus Curiae, Akshay Sahay,
Ms. Bagavathy Vennimalai, Ms. Kaushitak Sharma, Ms. Hima
Bhardwaj.
Advs. for the Appellant(s):
Akshay Sahay, Ms. Bagavathy Vennimalai, Ms. Kaushitak Sharma,
Ms. Hima Bhardwaj, Ms. Sarvshree, Ms. Somyashree.
Advs. for the Respondent(s):
Shyam Padman, Sr. Adv., Umesh Sinha, Gunnam Venkateswara
Rao, Ms. Shefali, Anil Kumar Singh, Ms. Himani Chhabra,
Ms. Devyani Mahra, Jaimon Andrews, Ms. Piyo Harold Jaimon,
Ms. Asitwathi Shyam, Ms. Firdousecp, Naresh Kumar.
Petitioner-in-person.
[2026] 5 S.C.R.
305
Kumud Lall v. Suresh Chandra Roy (Dead) Through Lrs and Others
Judgment / Order of the Supreme Court
Judgment
J.K. Maheshwari J.
1.
Leave granted.
2.
The present appeals arise out of the challenge preferred by the legal
heirs1 of the alleged medically negligent doctor (deceased now), to
the order2 passed by the National Consumer Dispute Redressal
Commission, New Delhi (in short 'NCDRC'), thereby allowing
the application filed by the complainant (deceased now) seeking
substitution of the legal heirs of the doctor, pending revision and
directing them to be brought on record. On filing review, it was also
dismissed3 observing that the legal heirs shall be liable to satisfy the
decretal amount to the extent payable from the estate left behind, on
conclusion of the proceedings. Hence, the instant appeals to assail
the orders passed in main case and review.
BRIEF FACTS
3.
The case as set up by the complainant before District Forum, Munger,
Bihar (in short 'District Forum') was that he consulted Dr. P.B. Lall
(deceased) at his private clinic on 10.02.1990 due to complain of
severe pain by his wife in her right eye. On examination, Dr. Lall
advised immediate operation, which was done on 11.02.1990.
However, the pain reoccurred on 16.03.1990 and she was taken
back to Dr. Lall. Despite further treatment, there was no relief. The
complainant consulted with other doctors at Bhagalpur and Aligarh,
but having no respite, he consulted Dr. B. Sridhar at Shankar
Netralaya, Madras. As alleged, he informed that his wife had already
lost vision of right eye due to wrong treatment and operation, which
can further affect the vision in her left eye. On advice of surgery of
his wife's left eye, she was operated on 05.05.1994. Consequently,
1
Wife and son.
2
26.05.2010 (Impugned Order I) in M.A. No. 1214 of 2009 (Application for substitution) in Revision
Petition No. 432 of 2006.
3
vide order dated 24.05.2018 (Impugned Order II) passed in M.A. No. 324 of 2011 (Review) in Revision
Petition No. 432 of 2006 and R.A. No. 70 of 2011 (Review) in Revision Petition No. 432 of 2006
306
[2026] 5 S.C.R.
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the complainant had to visit Madras multiple times, and the treatment
of his wife with local doctor continued till 05.08.1997.
4.
The consumer complaint under the Consumer Protection Act, 1986
(in short '1986 Act') was filed on 13.08.1997 against Dr. Lall for
alleged deficiency in service, claiming compensation as follows -
a.
Operation charges and clinic charges,
medicine etc. paid to the opp. party at
Munger.
Rs. 5000/-
b.
Doctor's fee at Bhagalpur, Munger, two
operation charges at Madras, expenditure,
train fare, fooding, lodging, medicine etc. at
Aligarh and Madras correspondence
Rs. 75,000/-
c.
Compensation for damage for loss of eyes
Rs. 3,50,000/-
d.
Mental agony and harassment
Rs. 20,000/-
Rs, 4,50,000/-
5.
The District Forum vide order dated 05.11.2003 partly allowed the
complaint holding the doctor negligent for deficiency in service and
held him liable to pay compensation of Rs. 2,00,000/- for loss of
vision. In addition, Rs. 35,000/- for expenditure and treatment, and
Rs. 25,000/- for mental agony, making total Rs. 2,60,000/- be paid
within 3 months.
6.
Being aggrieved, complainant and Dr. Lall both approached State
Consumer Disputes Redressal Commission, Patna, Bihar (in short
'SCDRC') filing Appeal Nos. 598 of 2003 and 607 of 2003 respectively.
Both the appeals were decided vide common order on 02.12.2005,
and the appeal filed by the complainant was dismissed, while the
appeal of Dr. Lall was allowed, setting aside the order of District
Forum. The SCDRC noted that the loss of vision of the wife of
complainant was due to glaucoma and not curable even after the
surgery was done desperately by Dr. Lall with intent to relieve her
from pain. The surgery performed was acceptable under the medical
ethics and with the best of the abilities by Dr. Lall. The complainant
has not produced any report from any expert of medical board or
any expert to show that in doing surgery Dr. Lall was negligent. In
absence of expert evidence to substantiate the allegation of medical
[2026] 5 S.C.R.
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Kumud Lall v. Suresh Chandra Roy (Dead) Through Lrs and Others
negligence leading to loss of vision, holding the doctor guilty for the
same is not sustainable.
7.
Dissatisfied, the complainant preferred Revision Petition No. 432 of
2006 before NCDRC assailing the order of SCDRC, pending which,
Dr. Lall passed away on 04.08.2009. The complainant filed M.A.
No. 1214 of 2009 for substitution of legal heirs (wife and son) in
the revision petition, which was allowed by NCDRC on 26.05.2010
(Impugned Order I), substituting the appellants herein as legal heirs.
On notice, both wife and son filed applications4 under Order XXII5
Rule 16 and 47 read with Section 1518 of Code of Civil Procedure
(in short 'CPC') and Section 229 of 1986 Act, praying to drop their
names from the proceedings, to dismiss the recall by the order
dated 26.05.2010. It was said, since Dr. Lall had succeeded in the
appeal before SCDRC, and died during the pendency of the revision,
no subsisting decree existed on the date of his death, hence, the
proceedings would stand abated. Further, the applicants were never
served with any notice at any stage before joining them as party to
the revision petition. In the meantime, the original complainant also
died on 16.01.2014 and her legal heirs were substituted.
8.
NCDRC vide order dated 24.05.2018 (Impugned Order II) dismissed
both the applications and posted the matter for final hearing on
20.09.2018. Aggrieved by the said order, the present appeals have
been filed wherein after issuing notice, stay on further proceeding was
granted on 18.12.2019. Having regard to the nature of the controversy,
this Court by order dated 13.01.2026 appointed Mr. Raghenth Basant,
learned senior counsel and Mr. Varun Kapoor, learned counsel as
amicus curiae to assist the Court, on the issue as involved.
SUBMISSION OF THE APPELLANTS
9.
Ms. Sarvshree, learned counsel appearing on behalf of the appellants
submits that the alleged incident of medical negligence is of
11.02.1990, though the complaint was filed on 13.08.1997, almost
4
MA No. 324 of 2011 (by wife) and R.A. No. 70 of 2011 (by son).
5
Death, Marriage and Insolvency of Parties.
6
No abatement by party's death if right to sue survives.
7
Procedure in case of death of one of several defendants or of sole defendant.
8
Saving of inherent powers of Court.
9
Power of and procedure applicable to the National Commission.
308
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a delay of 7 1⁄2 years. There is no proximity between the date of
alleged incident and the date of filing complaint. The complainant
took his wife to multiple other doctors for treatment but of no avail.
Dr. Lall had unblemished record and was a specialist having MBBS
(Pat), M.S. (Eye), M.S. (ENT), DO (London) degrees, were qualified
and well respected.
10. Learned counsel further submits that the complaint was dismissed
by SCDRC and during pendency of revision Dr. Lall passed away.
Therefore, on the date of death of Dr. Lall, no formal decree of
any forum/Commission exist against him. In such eventuality, the
proceedings ought to have been closed as abated, and for alleged
negligence of deceased, no right to sue survive against the legal
representatives. Nonetheless no loss to estate is claimed by an
enrichment of estate of Dr. Lall LRs, and hence cannot be substituted.
Therefore, in absence of decree, recording finding of personal injury
due to medical negligence, no proceedings can continue against
the legal heirs of the doctors in view of Section 30610 of the Indian
Succession Act, 1925 (in short '1925 Act').
11. It is also urged, in the 1986 Act, opposite party has not been
defined and in case of death of opposite party rendered service in
person, his/her legal heirs cannot be substituted for any negligent
act of individual Doctor. To buttress the submissions, reliance has
been placed on Melepurath Sankunni Ezhuthassan Vs. Thekittil
Geopalankutty Nair11, M. Veerappa Vs. Evelyn Sequeira12, Balbir
Singh Makol Vs. Chairman, M/s Gangaram Hospital and Others13,
Neeraj Amarnath Dora Vs. Nandan Hospital and Others14, G.
Jayaprakash Vs. State of Andhra Pradesh.15
SUBMISSION OF THE RESPONDENTS
12. Mr. Umesh Sinha, learned counsel appearing for respondents
vehemently argued and said the provisions of CPC are applicable to
10
Demands and rights of action of or against deceased survive to and against executor or administrator.
11
(1986) 1 SCC 118
12
(1988) 1 SCC 556
13
2001 (1) CPR 45 (NC)
14
II 2011 CPJ 171 (NC)
15
AIR 1977 (AP) 20
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Kumud Lall v. Suresh Chandra Roy (Dead) Through Lrs and Others
1986 Act, and in terms of Order XXII Rule 4, even if sole defendant
dies, his legal heirs ought to be substituted when right to sue
survive. He submits that, the legal heirs of Dr. Lall inherited his
estate and in case, liability, if any, is fixated for his negligence, it
may be recoverable to such extent from his estate. The legal heirs
of Dr. Lall stepped into his shoes by virtue of Section 2(11) of CPC,
which defines 'legal representative' a person in law who represents
the estate of the deceased.
13. He further submits that Section 13(7) of the 1986 Act provides for
applicability of Order XXII where the complainant or the opposite
party dies. Rule 4 of Order XXII prescribe the procedure on death
of one of several defendants or of sole defendant, hence, NCDRC
was right in continuing the proceeding, substituting the legal heirs
of Dr. Lall.
14. Countering the applicability of Section 306 of 1925 Act, it is submitted
that maxim 'actio personalis monitor cum persona' (a personal action
dies with the person) has been stated to be 'unworkable' in today's
social jurisprudence as per 178th Report16 of the Law Commission of
India and recommended for the amendment. Same view has been
subscribed in the 8th report17 of the Haryana Law Commission. He
further submits that no fault is attributable to him in the present case,
as he has been pursuing the case diligently. At this stage, merely
pecuniary claim survives, which can be satisfied from the estate of
the opposite party, in case, the claim is decided in his favour. It is
said, the application seeking substitution has rightly been allowed,
otherwise, it would be amounting to reject the claim at the threshold
at revisional stage without touching the merit.
SUBMISSION OF INTERVENOR
15. Mr. Shyam Padman, learned senior counsel, representing Indian
Medical Association, Kerala State Branch, submitted that the 1986
Act does not provide any definition of 'opposite party', indicating
a conscious legislative intent to survive any claim or to continue
such claim against the estate of the opposite party after death. The
procedure to follow is provided in Section 13(7) of the 1986 Act or
16
December, 2001.
17
02.12.2022
310
[2026] 5 S.C.R.
Supreme Court Reports
Section 3818(12) of the Consumer Protection Act, 2019 (in short
'2019 Act'), which refers the procedure of Order XXII of CPC. Since
both the Acts are silent on the issue of abatement and nor do they
override Section 306 of 1925 Act, therefore entire domain is governed
by Order XXII of CPC read with substantive law on the issue.
16. It is submitted Section 306 of 1925 Act is subject to qualify that such
proceedings may continue against the executor or administrator where
the right to sue survives. In case, the proceedings do not reach to
a final conclusion, no liability can be said to be crystallized against
the opposite party and if party dies in absence, no transmissible
obligations persist.
SUBMISSION OF AMICUS CURIAE
17. Mr. Raghenth Basant, learned senior counsel, and assisted by Mr.
Varun Kumar Kapoor, learned counsel, appearing as amicus submitted
that Section 13(7) of 1986 Act addresses the contingency where
either party to a pending proceeding dies and provides, the matter
be dealt in accordance with Order XXII of CPC. In the present case,
the opposite party had succeeded in appeal, the question remains
as to whether on his death during pendency of revision, the right to
sue survives or not. To ascertain, substantive law has to be looked
into vis-à-vis the general principle under Section 306 of 1925 Act.
18. He submits that, Section 306 of 1925 Act carves out an exception
to the transmissibility of right to sue or to be sued, to the executors
or administrators of deceased party. The exception being 'personal
injuries not causing death of the party', applies to claims, not resulting
in death, implying such personal cause of action do not survive and
end with the death of the person.
19. Supplementing the arguments of the respondents, he drew our
attention to the 178th report of the Law Commission of India, 8th
report of the Haryana Law Commission, Kerala Torts (Miscellaneous
Provisions) Act, 197619 and practices of other common law countries
who have dispensed with the application of maxim 'actio personalis
moritur cum persona'.
18
Procedure on admission of complaint.
19
which allows all causes of action to continue except defamation, seduction or adultery.
[2026] 5 S.C.R.
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Kumud Lall v. Suresh Chandra Roy (Dead) Through Lrs and Others
20. Lastly, placing emphasis on the legislative intent underlying Section
13(7) of 1986 Act read with Order XXII of the CPC, he submits that
if the principle laid down in Balbir Singh Makol (supra) is applied, it
would result in material inconsistency. According to him, the right to
sue would not survive if the opposite party dies during the pendency
of the complaint, yet it would survive where the death occurs during
the pendency of an appeal against a decree passed against the
opposite party.
21. Learned amicus has also suggested possible interpretations, whether
or not the right to sue survives on death of the complainant or opposite
party (medical professional/doctor). The suggested interpretations
are for convenience as quoted -
On death of complainant
Interpretation A - All claims shall survive on death of complainant
because of 1986 Act and 2019 Act being subsequent and special
laws, they shall govern the field.

-
The 1986 Act defines the word complainant to include
consumer's legal heirs and the definition given under Section
2(5)(v) makes it clear that upon death of original consumer, the
LRs can step into his shoes, meaning thereby, the claim can
continue through LRs and is not meant to extinguish, reflecting
conscious legislative intent.

-
Similar is the situation in the subsequent 2019 Act, where similar
definition has been provided under Section 2(5)(vi) and once
again Parliament has recognized the right of the consumer to
seek redressal of his claim after his death through LRs.
Interpretation B - Only claims amounting to 'loss to estate' can
survive.

-
Personal injury stipulated under Section 306 of 1925 mistakenly
assumes to cover all tortious acts and negligence where direct
injury is suffered.

-
Loss to the estate following such injury ought to be extricated
from the ambit personal injury, since any such loss to the estate
from an actionable wrong does not partake the character of
personal injury. For eg. - In motor accident cases, award under
312
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tab for loss of future income, medical expenses etc. are exclusive
to personal injury. Hence, such claims can be protected from
the rigor of Section 306 of 1925 Act.
On death of opposite party (medical professional/doctor)
Interpretation A - If 'loss to estate' is not reckoned as a claim for
'personal injury', at least this claim can survive even on the doctor's
death, against his estate.

-
Claim for loss of estate stand on a different footing from
personal injury. Such claim represents quantifiable economic
loss and does not fall within exception enumerated in Section
306 of 1925 Act.

-
The Parliament did not provide for mandatory abatement of
proceedings in case of death of opposite party. Had it been
the intention, it would have provided an express provision in
the 1986 Act or the 2019 Act. Rather, Order XXII of CPC has
been made applicable to ensure proceedings are continued in
such cases.
Interpretation B - Even a claim for 'personal injury' could be
sustainable against the estate of the deceased doctor.
a.
An interpretation that avoids anomalous or irrational
consequences is to be preferred.

-
Any construction that would permit consumer to establish
negligence and recover secondary loss as a consequence
thereof, though bar him from recovering the primary loss
because of injury suffered due to same, would lead to a
situation where principal wrong itself is rendered illegally
irrelevant solely because the wrongdoer has died.

-
Such interpretation of the maxim 'actio personalis moritur
cum persona' defeats the very purpose of 1986 Act/2019
Act, which is a beneficial legislation.

-
This anomaly has been criticized by the Law Commission
of India in its 178th Report, deprecating the mechanical
application of this maxim being inconsistent with the
modern social jurisprudence and also by the Haryana
Law Commission in its 8th Report.
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Kumud Lall v. Suresh Chandra Roy (Dead) Through Lrs and Others
b.
Comparative common law as a persuasive interpretative tool.

-
The maxim finds statutory expression in Section 306 of
Indian Succession Act, 1925 and is a doctrine of commonlaw origin traceable to English Law.

-
United Kingdom by enacting Law Reform (Miscellaneous
Provisions) Act, 1934, abrogated the principle that personal
causes of action perish with the person. Other jurisdictions
have followed.
c.
Section 13(7) of 1986 Act and Section 38(12) of the 2019 Act
will not be rendered otiose.

-
The above interpretations do not violence the text of
Section 13(7) of 1986 Act and 38(12) of 2019 Act, which
mandate recourse to Order XXII of CPC in case of death
of a party including opposite party.

-
What is urged is a relief specific inquiry into survivability,
fully consistent with the aforesaid Order, not confined to
monetary compensation, but also include directions for
performance of specific obligations including removal of
defects or any other acts incapable of being carried out
after death of opposite party.
Suggestions
On death of the opposite party (medical professional/doctor)
a.
Upon the death of the medical professional, claims for
compensation arising out of medical negligence, including claims
for person Upon the death of the medical professional, claims
for compensation arising out of medical negligence, including
claims for personal injury suffered by a consumer, ought to
survive against the estate of the deceased. The Consumer
Protection Act, being a special, beneficial and subsequent
legislation, must govern the field in preference to the general
provisions of the Indian Succession Act, 1925.
b.
In the alternative, even if claims for personal injury are not
held to survive in their entirety, claims for loss to estate of the
complainant must, in any event, be held maintainable against
the estate of the deceased doctor. Loss to estate constitutes
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a distinct and independent head of claim, representing
compensatory civil liability rather than a personal cause of action,
and therefore survives even on a strict construction of Section
306 of the Indian Succession Act, 1925. al injury suffered by a
consumer, ought to survive against the estate of the deceased.
The Consumer Protection Act, being a special, beneficial and
subsequent legislation, must govern the field in preference to
the general provisions of the Indian Succession Act, 1925.
On death of the consumer/complainant
a.
All claims maintainable under the Consumer Protection Act,
including claims involving personal injury, may be permitted
to survive at the instance of the legal representatives. Such
survivability flows from the inclusive definition of 'complainant'
under the Consumer Protection Act and the legislative intent
to treat consumer grievances as statutory rights rather than
purely personal torts. The Consumer Protection Act, being a
special and subsequent legislation, must govern the field in
preference to the general provisions of the Indian Succession
Act, 1925. Concerns of unjust enrichment by the kin of the
deceased consumer/complainant can be adequately addressed
through moderation of quantum, particularly in respect of
non-pecuniary heads, consistent with the principle if just
compensation.
b.
In the alternative, and at the very least, claims representing loss
to estate, such as medical expenses incurred, loss of income
during the lifetime of the consumer, or other pecuniary loss,
must necessarily survive. Even on a restrictive application of
Section 306 of the Indian Succession Act, 1925 such claims
do not fall within the exception relating to personal injury and
are transmissible to the legal representatives.
ANALYSIS AND FINDINGS
22. We have heard the learned counsel for the parties, the intervenor,
and learned amicus curiae at considerable length. It is an exceptional
case indeed in the sense that in spite of the best assistance of the
amicus, this Court had to indulge in legal research to dredge out
older statutory provisions which may seek to answer this issue.
However, the law seems to have been lost to the pages of history
[2026] 5 S.C.R.
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Kumud Lall v. Suresh Chandra Roy (Dead) Through Lrs and Others
due to less tort actions being litigated in India. In posterity, this case
may be lesson to the students and stakeholders, to have a strong
emphasis on legal history and jurisprudence.
23. Upon a careful consideration of the submissions advanced, the
material placed on record, and the applicable legal framework, the
question that arises for our consideration is -
"Whether, upon death of the doctor during pendency of
proceedings at appellate stage, the legal heirs can be
impleaded and held liable for the alleged act of medical
negligence of the deceased doctor? If yes, to what
extent?"
24. Aforesaid question assumes importance as the implication of the
holdings in this case also applies to numerous types of tortious
claims, including personal injuries which does not amount to death,
including motor vehicle accidents, and other industrial accidents. In
this context, we only state the principle of law as applicable, without
considering any additional policy consideration which may be relevant
to be considered elsewhere under different enactments.
25. Before we advert to the merits of the submissions, it is necessary
to first understand the legal landscape. At the outset it becomes
imperative to refer to common law maxim 'actio personalis moritur
cum persona', which translates to 'a personal right of action dies
with the person'. This maxim was entrenched in the common law at
least since 15th century. Percy H. Winfield20 has written greatly about
the evolution of this principle in common law as having dark corners.
26. English law, in light of societal changes, identified early on the need
and necessity to create exceptions. In Hambly v. Trott21, a simple
case wherein defendant had wrongfully converted and used the
Plaintiff's sheep (a tort of conversion/trespass), while deciding the
liability of defendant's executor/estate, Lord Mansfield observed -
"...The maxim, actio personalis moritur cum persona, upon
which the objection is founded, not being generally true,
and much less universally so, leaves the law undefined
20
Percy H. Winfield, 'Death as Affecting Liability in Tort', Columbia Law Review, Vol. 29, No. 3 (Mar., 1929),
pp. 239-254]
21
1776 1 COWP 371
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as to the kind of personal actions which die with the
person, or survive against the executor.....
...... Here therefore is a fundamental distinction. If it is
a sort of injury by which the offender acquires no gain
to himself at the expense of the sufferer, as beating or
imprisoning a man, &c. there, the person injured has only a
reparation for the delictum in damages to be assessed by
a jury. But where, besides the crime, property is acquired
which benefits the testator, there an action for the value
of the property shall survive against the executor. As for
instance, the executor shall not be chargeable for the injury
done by his testator in cutting clown another man's trees,
but for the benefit arising to his testator for the value or
sale of the trees he shall.
So far as the tort itself goes, an executor shall not be liable;
and therefore it is, that all public and all private crimes die
with the offender, and the executor is not chargeable; but
so far as the act of the offender is beneficial, his assets
ought to be answerable; and his executor therefore shall
be charged............
(emphasis supplied)
This case clearly demarcated that death although ends personal
liability for torts, however, any advantage gained by the defendant
therein is answerable by the successor interest in the property.
27. The maxim which means 'a personal claim dies with the person' was
a general rule applicable to torts and prevents representatives of the
deceased from suing in his right for the suffering and pecuniary loss
caused to the deceased during his lifetime by reason of the injury of
which the deceased ultimately died. The result was that the person
who caused the death of other cannot be sued in tort, though if death
had not been caused but only injury had been caused, the injured
would be entitled to sue and recover damages for the tortious act.
28. An Act of 1330 (4 Ed. III, c. 7) as amended by an Act of 1351-1352
(25 Ed. III, st. 5, c. 5.), enabled the personal representatives to sue
for any injury done to the personal estate of one since deceased. The
Civil Procedure Act, 1833, filled up most of the gaps left by the Act
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Kumud Lall v. Suresh Chandra Roy (Dead) Through Lrs and Others
of 1330, at any rate so far as injuries to property were concerned.
Its' provisions on this point were embodied under the Administration
of Estates Act, 1925. Under the aforesaid enactment, the personal
representatives could maintain for any injury committed to the real
estate of the deceased, within six months before his death, any
action which the deceased himself could have maintained, but the
action had to be brought within one year after his death. Further,
an action might be maintained against the personal representative
of a deceased person for any wrong committed by the deceased
within six months before his death, to another person's real or
personal property, but the action had to be brought within six months
after the personal representative had taken out representation.22
Various other enactments have created exceptions, which are
Fatal Accidents Act, 1864, Employer's Liability Act (43 and 44 Vict.,
c.42), Workman's Compensation Act, 1897 (60 and 61 Vic., c.37),
Workman's Compensation Act, 1906 (6 Edw. VII, C. 58).
29. The position at one point in England was 'it was cheaper to kill than
to maim or cripple'. The above unsatisfactory state of law in England
was overcome by the passing of the Fatal Accidents Act, 1846, which
is commonly known as Lord Campbell's Act and English Law Reform
(Miscellaneous Provisions) Act 1935.
30. First set of statutory exception was carved under Fatal Accidents Act,
1846 (Lord Campbell Act). The English enactment, was adopted into
India in 1855, giving a 'right to sue' to certain relative consequent upon
the death of another as the result of a tort, providing the deceased
would have been able to sue in person had he survived. This act
survives in India even today, albeit in limited context wherein the
right to sue for Plaintiff is preserved through statutory exceptions,
when fatal accidents occur.
31. In Phillips v. Homfray23, Lord Bowen who delivered the judgment
of Lord Justice Cotton and himself deals fully with the application of
the maxim and its limitations. He observes as thus (at page 454) -
"The only case in which, apart from the question of breach
of contract express or implied, a remedy for a wrongful act
22
P H Winfield, Recent Legislation on the English Law of Tort, 1936 14-8 Canadian Bar Review 639;
23
(1883) 24 Ch.D., 439
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[2026] 5 S.C.R.
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can be pursued against the estate of a deceased person
who has done the act, appears to be those in which
property or the proceeds or value of property belonging
to another have been appropriated by a deceased person
and added to his own estate or moneys."
32. Further under English law, second set of exception for other tortious
claims other than fatal accidents were created with the introduction
of the English Law Reform (Miscellaneous Provisions) Act 1935,
which allowed actions to be brought on behalf of a deceased
plaintiff or against the estate of a deceased defendant. It may be
beneficial herein to note certain provisions of the English Law Reform
(Miscellaneous Provisions) Act 1935. Section 1(1) of the aforesaid
Act, states as under-
"1. Effect of death on certain causes of action.
(1) Subject to the provisions of this section, on the death
of any person after the commencement of this Act 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. Provided that this subsection
shall not apply to causes of action for defamation.
(1A) The right of a person to claim under section 1A of
the Fatal Accidents Act 1976 (bereavement) shall
not survive for the benefit of his estate on his death.]
(2) Where a cause of action survives as aforesaid for
the benefit of the estate of a deceased person, the
damages recoverable for the benefit of the estate
of that person-
[(a) shall not include-
(i)
any exemplary damages;
(ii)
any damages for loss of income in respect
of any period after that person's death;]
(b) ......
(c)
Where the death of that person has been caused
by the act or omission which gives rise to the
cause of action, shall be calculated without
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Kumud Lall v. Suresh Chandra Roy (Dead) Through Lrs and Others
reference to any loss or gain to his estate
consequent on his death, except that a sum in
respect of funeral expenses may be included.
(3) ... ...
(4) Where damage has been suffered by reason of any
act or omission in respect of which a cause of action
would have subsisted against any person if that
person had not died before or at the same time as the
damage was suffered, there shall be deemed, for the
purposes of this Act, to have been subsisting against
him before his death such cause of action in respect
of that act or omission as would have subsisted if he
had died after the damage was suffered.
(5) The rights conferred by this Act for the benefit of
the estates of deceased persons shall be in addition
to and not in derogation of any rights conferred on
the dependants of deceased persons by the Fatal
Accidents Acts 1846 to 1908,..... and so much of this
Act as relates to causes of action against the estates
of deceased persons shall apply in relation to causes
of action under the said Acts as it applies in relation
to other causes of action not expressly excepted
from the operation of subsection (1) of this section.
(6) In the event of the insolvency of an estate against
which proceedings are maintainable by virtue of this
section, any liability in respect of the cause of action
in respect of which the proceedings are maintainable
shall be deemed to be a debt provable in the
administration of the estate, notwithstanding that it
is a demand in the nature of unliquidated damages
arising otherwise than by a contract, promise or
breach of trust.
The position of the earlier quoted maxim in England is presently
largely academic, since the question of survival of cause of action
is almost entirely governed by statute.