M.L.Bajaj vs Y.P.GOYAL

WHETHER a consumer dispute would survive the death of the complainant for the benefit of his legal representatives ? This is the solitary significant issue in this complaint now.

THE facts relevant to the pristinely legal question above lie in a narrow compass. Ashok Kumar, complainant (now deceased) had brought the complaint to allege a deficiency in medical services rendered by the opposite party Dr. Y.P. Goel. THE allegation was that on the 3rd of December, 1990, he developed a very severe pain in his right leg throughout and was immediately taken to the Clinic of the opposite party at Kurukshetra. He was administered injections and apparently admitted as an indoor patient.. But since no visible relief in the pain ensued, the opposite party got him checked from another specialist surgeon on the 5th of December, 1990, who advised that he should be shifted to the Post Graduate Medical Institute at Chandigarh for proper treatment. In accordance therewith the complainant was forthwith removed to the P.G.I, and ultimately his leg had to be amputated thereat and he was later discharged on the 29th of December, 1990. Inevitably, he remained bedridden for more than 3 months and the primal grievance was that he had lost his leg due to the wrong treatment and negligence of the opposite party, in failing to arrive at a correct diagnosis forthwith. THE father of the complainant had originally moved this Commission on a somewhat rambling application and subsequently a proper amended complaint was filed by the complainant himself in compliance with our order dated 18th of June, 1993 seeking compensation to the tune of Rs. 4 Lacs. It is unnecessary to advert to the defense taken which stoutly controverted all the allegations of the complaint and raised preliminary objections, which were disposed of by our detailed speaking order on the 13th of August, 1993. The crucial fact is that on the 12th of November, 1993 the complainant died of a cause wholly unrelated to the alleged injury and amputation of his leg. An application dated the 1st of February, 1994 was then preferred seeking to implied the legal representatives on the record. The prayer is that both the parents of the deceased and his widow, and three children be brought on the record. It is averred that there are no other legal representatives of the deceased.

The aforesaid application has been strenuously opposed by Mr. Pardeep Bedi and Mr. S.D. Bansal, the learned Counsel for the opposite parties on the firm ground that a consumer is entirely personal to the complainant and the same would not survive his death for the benefit of his estate.

IT is somewhat manifest from the aforesaid resume of facts and the rival''s stand that the crucial issue herein is whether the right to sue survives in a consumer dispute to the legal representatives. That at once brings into play the hallowed and the hoary latin maxim-actio personalis moritur cum persona (a personal action dies with the person). For our purposes, it is unnecessary to trace its origin to times immemorial, or to determine whether it equally formed part of the Roman Law. IT suffices to mention that in the Anglo-Saxon Jurisprudence, which we have inherited, it is clearly traceable to the 15th century or even earlier. IT states in lain a long established principle clearly applicable to torts generally/ and to assault and battery particularly with the effect that the cause of action did not survive to the heirs. It is true that the maxim, actio personalis moritur cum persona, though an integral part of the English Common Law has inevitably been subjected to criticism even in England. Its rigor where necessary has been softened in the said jurisdiction by statutory amendments to make the rights heritable in certain contexts. It would be academic to enter into the field of legislative modification of the maxim in England. It suffices to notice that within our country, part of the principle under-lying the maxim, has found statutory recognition in Section 306 of the Indian Succession Act, which read as under : "All demands whatsoever and all rights to prosecute or defend any action of special proceeding existing in favour of or against a person at the time of his disease, survive to and against his executors or administrators; except causes of action for defamation, assault as defined in the I.P.C 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. Illustrations (i) A collision takes place on a railway in consequence of some neglect or default of an official and a passenger is severely hurt, but not so as to cause death. He afterwards dies without having brought any action. The cause of action does not survive."

A plain reading of the above would make it manifest that within the civil jurisdiction the causes of action for damages assault or other personal injuries not causing the death of the party do not survive to the heirs. Equally the somewhat wide and ambivalent field where after the death of the party, relief sought could not be enjoyed or would infact would be nugatory are equally excluded from her table causes. It would be manifest from the above that in a somewhat limited field, the maxim actio personalis moritur cum persona, holds sway not only on principle and statutory sanction, but equally by precedent. In AIR 1967 Supreme Court 1124 "Girijanandini v. Bijendra Narain" the final Court observed as follows : "The maxim ''actio personalis moritur cum persona'' a personal action dies with the person, has a limited application. It operates in a limited class of actions ex delicto such .as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted would be nugatory."

After the enunciation of the principle, it was held in the said case however, that an action for rendition of account is not an action for damages ex dilicto and does not fall within the arena of the said maxim. Again in the recent enunciation of law in Judgments Today 1993 (6) Supreme Court 337 "Sh. Remeslnvar Manjhi (deceased) through his son Sh. Lakhiram Manjhi v. The Management of Sangramgarh Colliery & Others'', the Final Court reiterated that the maxim is still applicable within a limited field and would equally depend upon the relief claimed, whilst holding that the same would not be attracted in all its rigor under Section 2-A of the Industrial Disputes Act. The stage is now set to consider the pointed issue whether the principle under-lying the maxim would be attracted in a consumer dispute as well. Inevitably, this would depend on the very nature of the right recently conferred by Parliament on a new statutory class of consumers. Is this right in essence a personal one or enures for the benefit of the estate as well ? That is the question.

IT needs no great erudition to recall that till the promulgation of the Consumer Protection Act in 1986, there was no such class of consumers or a beneficent jurisdiction in their favour. This is entirely a conferment by Parliament and a creature of the said statute. One has to look at the salient features of the Act to determine whether the conferred consumer right is one primarily personal or otherwise. The definition of a consumer in Section 2(1)(d) divides them into two generic classes of persons, who buy any goods for consideration or in the alternative hire or avail any services for consideration. A consumer dispute is then defined to arise where the person against whom the complaint has been made denies or disputes the allegations contained in the complaint within the parameters of the causes of action described by clause (c) of Section 2(1). IT would be wasteful to intricately advert to the other clauses of this defining Section. But the broad conclusion seems inescapable that the Parliament in its wisdom has created this new class of consumers and conferred the consumer right on them as primarily personal, and not as a property right, which normally ensures for the benefit of the estate as well. IT is then significant that in the 31 Sections constituting the statute, any reference to any heir of a consumer or his legal representatives is singularly conspicuous by its absence. IT may equally be highlighted that the provisions of the C.P.C. pertaining to the imp leading of legal representatives of a litigant are by necessary implication excluded in terms from applicability in the consumer jurisdiction. All this though, not conclusive is a weighty pointer to the fact that the Parliament in conferring the right, under the Act, did so as a personal one on the consumers and not otherwise.

WHAT is true of the Act itself is the more so with regard to the rules framed there under. By virtue of Section 30 of the Act, the Central Government has promulgated the Consumer Protection Rules, 1987. The 15 rules, so enforced are equally silent about any legal representatives being brought on the record or imp leaded in the event of the complainant''s death. Similarly, the respective State Governments including the State of Haryana have promulgated a virtually uni- form code of model rules all over the country. It can be said without fear of contradiction that none of the State Rules either envisage or provide for bringing on record the legal representatives. We may not be misunderstood to say that this by itself is conclusive. But as said earlier, this also is a procedural pointer to the same effect. Viewed in the larger perspective and from any angle, it appears to us that a consumer right is inherently and primarily a personal one. Even, if two well-matching constructions of the Act were possible on this issue, we would still tilt to the view that the consumer right in essence is a personal right. We are inclined to opine that holding otherwise, would lead to anomalous, if not mischievous results. This is so because in essence, the consumer jurisdiction is a summary and expeditious one, time and again the National Commission and inevitably the State Commissions, have held that wherever matters of complicated and intricate nature arise, which cannot be determined except by the examination of a plethora of evidence etc., the redressal agencies would stay their hands and relegate the litigant to his plenary right before the Civil Court. It is somewhat elementary that the question, as to who in law would be the legal heirs of the deceased complainant and consequently entitled as such to be imp leaded as a legal representatives is many a times made a subject of contentious dispute. There may be rival claims and inter-se conflict between the alleged legal representatives. How and in what manner the proceeds of the litigation are shared or to be appropriated betwixt them, would then be equally necessary to determine, as in the present case six legal representatives have been sought to be brought on the record, whose locus-standi and inter-se status is inevitably challenged on behalf of the opposite parties apart from the maintainability of the application itself. It is common ground that the provisions of the C.P.C. with regard to the imp leading of legal representatives do not apply. On what premise, these questions have hence, to be determined would itself be not free from difficulty. All this makes it manifest that if the thicket of determining the legal representatives (which often is a thorny question) is entered into, the expeditious consumer jurisdiction intended to decide a consumer lis summarily would indeed be bogged down, as if by a side-wind. It is settled canon of construction that an interpretation, which is likely to lead to anomalous results, contrary to the purpose and objects of statute, must be avoided on principle.

It now remains to advert to precedent. Learned Counsel for the parties were fair enough to concede that despite diligent research, no direct authority either of the National Commission or the State Commissions was available. We are somewhat surprised about this paucity of precedent and consequently reference there to can only be by way of analogy on the larger question of the heritability of the causes of action. In 1970 Accident Claims Journal Page 344 ''Calcutta Insurance Limited v. Bhupinder Singh and Others'' A.D. Kaushal, J. (then adorning the Punjab and Haryana High Court Bench) categorically opined in a case of personal injury suffered in a motor accident, that the right did not survive, in the following terms : "The principle is fully applicable to the case before the Tribunal in which Kartar Singh''s demand was limited to compensation for personal injury both physical and mental. The right to make the claim being personal to him dies with him on the principle above enunciated and cannot be said to have survived to any one."

THE aforesaid ratio came up for consideration by a Division Bench of the Punjab and Haryana High Court in 1984 A.C.J. 645 "Joti Ram and Others v. Chaman Lal and Others." THE same was in terms affirmed by holding that it had been rightly held that the right did not survive to the legal heirs. However, the said case was distinguished on facts because in the case before the Division Bench, there was also a claim with regard to loss of property, which plainly affected the estate of the deceased. An identical view was expressed by the Division Bench presided over by Kailasam, J. in 1974 A.C.J. 362 ''C.P. Kandaswamy and Others v. Mariappa Stores and Others''. Lastly the Supreme Court in 1986 A.C.J. 440-''Melepurath Sankunni Ezhuthassan v. THE kittil Geopalakutty Nair'', held that even in the Appellate Forum, the right to sue did not survive to the legal representatives of the claimants. It is somewhat evident that the weight of precedent is consistently in favour of the view that a personal right does not survive the death of the claimant. In view of the aforesaid discussion on larger principle and the language of the Act and the weight of precedent, the answer to the question posed at the out-set has to be rendered in the negative. It is held that a consumer dispute would not survive the death of the complainant during trial for the benefit of his legal representatives.

ONCE the aforesaid conclusion is arrived at, it necessarily follows that the application moved by the legal representatives is not at all maintainable. The same has consequently to be dismissed. Inevitably the complaint also abates without any order as to costs. Complaint abates.