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Discharge of Torts

Discharge of Torts

Law of torts

Under the law of tort, the right to take action against the tort ceases after certain circumstances arise. The circumstances are as follows.

  1. In the event of the death of either or both of the parties (Actio personalis moritur cum persona),
  2. Waiver,
  3. Accord and Satisfaction,
  4. Release,
  5. Acquiescence means silent acceptance,
  6.  Res Judicata (Judgment recovered),
  7. Statute of Limitation (On the limitation of the period), ie after the expiry of the period.

1.Discharge of TortsIn the event of the death of either or both of the parties (Actio personalis moritur cum persona),

The maxim ‘Actio Personalis Maritu cum Persona’ applies here which means if a person dies, his personal right of action dies with him. It means a person who commits any tort or the person against whom the tort is committed dies the personal right ( right to take any action and right to take damages).

It was a rule of common law of England that with death the personal right to prosecute was abolished.

 But there are some exceptions to this rule as well.

 Law Reform ( Miscellaneous Provisions) Act, 1934 – This act abolished the rule of termination of the right to sue the deceased. It was provided by this Act that on the death of a person all the causes of action vested in him shall survive along with his property and shall vest in his heirs.

It has also been provided in the Law Reform Act that if any of the parties to the suit dies during the proceedings, then there will be no obstruction in the continuing of the proceeding. If any person is injured in an accident or gets such injuries as is likely to reduce his life span, then the same action can be taken for him also.

 The Fatal Accidents Act, 1976

 Section 1 of this Act provides that when the death of any person is due to any wrongful act, carelessness or default which, if it did not result in death, would entitle the injured party to the maintenance of the proceeding and to recover the damages caused by it. and in every such case the person who could have been liable if the death had not occurred, shall be liable in the proceeding for damages even if the person injured had died.

Under the present law the husband, wife or who has been a husband or wife before the death, or who has lived as a husband or wife, parent or other ancestor, child or other descendant of the deceased and siblings, and Uncle, maternal uncle, maternal uncle or children of any of them come under the category of dependents. An essential condition of proceeding under this Act is that the person whose death is the cause of the proceeding, had he been alive, he himself would have been entitled to bring the proceedings.

Exceptions in india

According to the Legal Representative Suits Act, 1885, the executor or administrator or representative can prosecute the deceased for any wrong or improper act done during his life time. It is necessary that the act has caused pecuniary damage to the property of the deceased and that damage has been done within 1 year of his death.

According to the Fatal Accidents Act 1885,

if the death of a person is due to wrongful act or carelessness or fault of any person, then the legal heirs of the deceased can sue for the benefit of the widowed husband or child of the deceased. Such a case should be proceed within 1 year of the death of the deceased.

Under Section 306 of the Indian Succession Act, 1929,

 the right of the deceased rests with his executor or administrator, so far as the prosecution is concerned, only defamation, assault and marital damages cannot be tried.

Carriage by Air Act, 1934

 Under this act, compensation has been arranged for the death of a person in the airway due to carelessness.

2. Discharge of Torts by Waiver

 If a person renounces the right to get damages by not prosecuting the damages, then in this way the right automatically lapses. The latter cannot prosecute for the tort if he merely bases his claim on breach of contract. Because by his behavior it will be understood that he has abandoned other proceedings, but alternatively he can do all the proceedings in one case. He can say that if he does not find damages in breach of contract, he may get damages under tort.

 Example – Where the wrongful act done against the injured person is both a contract and a tort, and if he sets his claim on the ground of breach of contract, he cannot subsequently sue for the tort.

In such cases he shall be deemed to have relinquished his other rights of proceedings.

 When the person who is entitled to damages expressly waives the right to damages, then that will be an explicit waiver. In such a case it is tantamount to release. When a person entitled to treatment has done an act which is contrary to the treatment he is entitled to receive, then the abdication of that right is implied. There are certain torts in which the abdication does not apply; such as defamation or assault.

 3. Discharge of Torts by Accord & Satisfaction

 Like civil liability, tort liability can also be terminated on the basis of  accord & satisfaction. If the plaintiff and the defendant reach a settlement and the defendant personally gratifies the plaintiff by indemnifying the plaintiff or paying damages by doing an act, the plaintiff’s right to sue for damages ceases. Once a settlement is reached, no further action can be taken for the same injurious act in the future.

4. Discharge of Torts by Release

The injured person has the liberty to relieve the injurer from the liability of compensation. In English law, the right of release must be obtained either by payment of money or by written signature.

The main difference between ‘agreement and satisfaction’  and release  is that release is usually in the form of a deed and is stamped and does not require consideration.

 In Indian law, consideration for release is not necessary as per section 63 of the Indian Succession Act; It is at the discretion of the injured person whether to give up the damage or not. Release obtained due to fraud, mistake or ignorance of authority is not binding

5. Discharge of Torts by Acquiescence

 If a person willfully does not prosecute the injurer for a longer period of time, it may be understood that he has given up the idea of prosecuting him. Not only is it important to be late, but it is necessary to have a direct acknowledgment of the right to take action.

 Whether or not the plaintiff has renounced the right to prosecute the injurer by acquiescence in a case is decided by considering the facts and circumstances of each case. Sometimes the delay can be due to some specific reason also. In such a case the right to prosecute does not abrogate by the acquiescence.

6. Discharge of Torts by Res Judicata

 According to Section 11 of the Code of Civil Procedure, once a case has been tried and a decision has been made, then another suit cannot be tried on the same cause of action, that is, there shall not be more than one trial on the same cause. This is the rule of res judicata. Provided that if two causes of action are created by the same act, then the suit decided on one cause of action does not preclude the filing of a suit based on the other cause of action.

7. Discharge of Torts by Statute of limitation

The tort should be sued within the time prescribed by law, otherwise the right to sue is lost. The Limitation Act in India has prescribed different limits of the period for prosecuting different types of torts.

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