N.K. JOSHI (DECEASED) THROUGH LRS. vs NEELAM KAUL

BRIEF facts relevant for the disposal of the above- mentioned application are that K.N. Joshi (now deceased) was operated upon by the opposite party No. 1 on 9.1.1992. K.N. Joshi filed the present complaint on 10.6.1992 alleging deficiency in service on the part of the opposite party and claiming compensation. Proceedings in the complaint were stayed by the High Court from 9.9.1992 to 16.1.1996 in Writ Petition No. 3147/92. During the pendency of the W.P., K.N. Joshi died on 28.12.1994. The present application was made on 28.3.1995 by the L.Rs. of the deceased with a prayer for being brought on record and continue the complaint.

THE opposite parties have contested the prayer. We have heard Ms. Asha Jain Madan, Advocate for the proposed L.Rs. and Mr. Izaz Maqbool, Advocate for the respondent No. 1. Mr. Raj Kishore Gupta, Advocate for respondent No. 2, and Mr. K.D. Sharma, Advocate for opposite party No. 3 and have gone through the written notes of submissions placed on record. The main contention of learned Counsel for the opposite parties is based on Section 306 of the Indian Succession Act which reads as under : "306. Demands and rights of action of or against deceased survive to and against executor or administrator- 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 if granted it would be nugatory."

The contention of Ms. Madan is that Section 306 occurs in Chapter VI under the heading "ALL The POWERS OF AN EXECUTOR OR ADMINISTRATOR". Invoking Section 306 was out of context in the present complaint. According to the learned Counsel, the general provisions applicable to the present case are to be found in Order XXII, Rules 1 and 3(1) of the Code of Civil Procedure. The general rule laid down in Order XXII, Rule 1 is that death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. The words ''right to sue'' means right to seek relief. The general rule, therefore, is that all right? of action and all demands whatsoever existing in favour of or against a person at the time of his death survive to or against his Legal Representative. It is further pointed out that assuming that Section 306 applied to the present case, according to the complainant, the injuries received by the deceased hastened his death. Further submission of the learned Counsel is that the concept of consumer as defined in the Act was elastic enough to include the present applicants. Reliance has been placed on Vasantha P. Nair v. M/s. Cosmopolitan Hospitals (P) Ltd. & Ors., II (1991) CPJ 444 Kerala. Several instances were given where a claim petition under the Workmen''s Compensation Act or Motor Vehicles Act or the Industrial Disputes Act were held maintainable by the L.Rs. of the deceased, claimants. Ms. Madan further submitted that it was significant that Mr. K.N. Joshi had instituted the complaint during his life time and this is not a case where the heirs may be claiming to initiate a complaint after the death of the deceased. Lastly Ms. Madan relied on M. Veerappa v. Evelyn Seqfueira & Ors., AIR 1988 SC 506.

THE contention of learned Counsel for the respondents on the other hand is that whereas the operation was performed on 9.1.1992,death took place on 28.12.1994 nearly three years after the operation and there was not an iota of material on record that the eye operation was in the least responsible for causing death or hastening the death of the deceased. According to the learned Counsel this was at best a case of injury which did not result in death and Section 306 clearly barred the legal representatives from continuing the complaint. We have carefully considered the respective submissions. In our view, the matter stands covered by decision of the Supreme Court in M. Veerappa v. Evelyn Sequeira & Others, (supra). That was a case where the plaintiff filed a suit against a Legal Practitioner claiming damages on account of alleged negligence and breach of contract on the latter''s part in the performance of his professional duties. During the pendency of the suit, the plaintiff died. Their Lordships of the Supreme Court set at rest the difference of opinion between the Calcutta High Court and Rangoon High Court on the one hand, and the remaining High Courts of the country on the other hand and held that the words "personal injuries" occurring in Section 306 of the Indian Succession Act did not mean injuries to the body alone but all injuries to a person other than those which caused death and that the relevant words must be read ejusdem generis with the words "defamation and assault" and not with the word "assault" alone. It was laid down by the Supreme Court that the suit abates if the claim is founded entirely on torts but survives if claim is based entirely on contract. It was further laid down that if action is founded partly on contract and partly on torts, then such part of the claim as relates to contract would survive and the other part would stand abated. Though it has been contended on the part of the opposite parties that the present claim is based entirely on torts, in our view, prima facie at least a part of the case is founded on breach of a legal duty which the Doctor has vis-a-vis his/her patient. In taking this prima facie view, we are guided by the fact that the case in M. Veerappa related to a lawyer vis-a-vis his client, speaking very broadly, the case of a Doctor cannot be different. However, this aspect of the matter is kept open to be decided at the time of final disposal.

FOR the foregoing reasons, the miscellaneous application is allowed and proposed L.Rs. brought on record. A copy of this order be furnished to parties. To come up for further proceedings on 31.7.1998. Application allowed.