LexThe Kerala Torts (Miscellaneous Provisions) Act, 1976 (No.8 of 1977)
Kerala · state statute
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THE KERALA TORTS (MISCElLANEOUS PROViSIONS) ACi', 1976
(Act 8 of 197i)
CONfENTS
Preamble
Sectaons
I . hort title, extent and commencement.
2. Effect of death on certain causes of action.
3. Damages recoverable in such cases.
4. Ac1ion in cases where death occurs before or at the same time the
damage ·s suffered.
5 Rtgh1s conferred by th1s Act to be in addition to rights conferred by
the Fatal Accidents Act.
6 Damages provable in insolvency.
7 Proceedings against, and contribuuon between, joint and several
tortfeasors.
8. Apportionment ot Jiabtlity in case of contributory negligence.
9. ReJJeal.
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THE KERALA TORTS (MISCELLANEOl'S PROVfSIONS) 1\CT, I97G*
(ACT.8 OF 1977) ,
An Act to unify and ammd the law 1c!at11/g to Sllll11VO! uf causes of acl/011, '!iability
of JOllll tortfcmors and lzabtltty 111 cases of wntubuto1y negltgcncc Ill 'cspccf
clj loriJ.
Prcambfc.-\IVHI:REA'> it i~ expedient to unrfy and amcmlthc lc1w relatiug
to s11rvival of causes of action, ]lability of iorllt t•!l tfcasms ,md liability in
cases of conu ibuto1 y negligence iu respect or forb;
B:c it .enact~~ m the Twenty-seventh 'Ye.u ~~ tlv~ :li"ep~blic of In'dii as
follows:- '
~ PART I
PRELIMINARY .
l Short title, e.tlent and commencement.-( I)· •'This' Act m•y'- be'11Hiled'the
Kerala Torts (Miscellaneous Provisions) _Act, 19?6. •
(2) It extends to the whole of the State of Ker.alc~ ..
(3) It shall come into force at once.
l?ART II
EFFECT OF DEATH IN RELATION fO CERTAIN CAUSES OF
ACTION IN TORTS
~ f o I t
2. Effect of deat!t on eel lam causes of oclwlt.-Ou the death of any person
r:fter the commencement of this ,\ct, all causes ol aclion subsist'mg' again~·
or vested m him sl~tlll ~U!ViYe ag.11ust, or, as the" ca~e lrl«) be, lo1 thC'bcll< 111
ol, his'c'state: .
P1 dvidcd that th1s :,ection sh.dl 110t apply to cau~cs oL1.ctiun ful defaiu.•
tion or seduction or for inducing one spouse to leave or 1emain apart'from
the other or to chims for damages on the ground of adultery .
3 Damar?,e~ recoverable m such cases.-\<Vhe•c a cause of action SU1Vives :1~
aforcsain for' the oen~fit of tile 'cstat.: of a·' deceased 'person,' the damag< 'i
I CCOVel able. for the benefit of the estate:: of that person-
( a) sh.Lllnot include any cxc::mplal y damages;
{b) in the case of a breach of promi~e to many, ,hall be Jiuuted lo
such damagl~, 1f any, to the estate of that person as flow~ f10m the bteach of
promise to marry;
*Rcccivccl the a~~cnt of the Vtcc-Presidrnt acting as President on the
17th day of February, 1977 and published in the Kcrc\la Gazt ttc
No. 138 dated 1st March, 1977.
34-/430/B.
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(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
reference to any loss or gain to his estate consequent on his death, except
that a sum in re~pect of funeral expenses may be mcluded.
4. Action in cases whe1 e death ocmrs be Jot c or at I he same ttme the damage is
s!iffcrcd.-Where damage has been suffered by 1 eason of any act or omission
in respect of which a cause of act ton would have subsisted against any person
if that person had n0t died before or at the same time as the damage was
suffered, the 1 e 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. Rights conferred by this Act to be in addttt,an to rights conferred by the Fatal
Accidents Act.-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 Indian
Fatal Accidents Act, 1855 (Central Act 13 of 18'i5) and so much of this Act
as relates to causes of action agamst the estates of deceased persons shall
apply in rel2tion te causes of action under the said Act as it an lies in
relation to other causes of action not expressly excepted from the operation
of section 2 of this Act.
Explanatzon.-In this section and in sections 7 and 8, "dependants"
means the wife, husband, parent ard child within the meaning of the Indian
Fatal Accidents Act, 1855. "
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6. Damages provable in msolve11cy.-In the event of the in<olvency of an
estate against which proceedings arc maintainable by VIrtue of this Act, 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 unliqui- #
dated damages atising otherwise than by a contract, promise or breach of
trust,
PART III
PROCEEDINGS AGAINST, AND CONTRIBUTION
BETWEEN TORTFEASORS •
'?. Proccedmgs against, and contribution between, joint and several tortfeasors.
( 1) Where damage is suffered by any jJerson as a result of a tOI t (whether a
crime or not),-
( a) iudgment obtained against any tortfeasor liable in respect of that
damage shall not be a bar to an action against any other nerson who
would; if sued, have been liable as a joint to1tfeasor in respect of the same
damage.
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(b) if more than one action is brought in respect of that damage by
or on behalf of the person by whom it was suffered, or for the benefit of his
estate, or of the dependants of that person, against t01 tfeasors liable in
re~pect of the damage (whether as joint tortfeasors or otherwise), the sum
1 ecoverablc under the judgments gtvcn m those actions by way of damages
shall not in the aggregate exceed the amount of the damages awarded by the
JUdgment first given; and in any of those actions, other than that in which
judgment is first given, the plaintiff shall not be entitled to costs unless the
court i~ of opinion that there was reasonable gt ouud for brmging the action.
(c) any tortfeasor liable in respect of that damage may recover
contribution from any other tortfeasor who 1s, or would if sued have been,
liable in respect of the same damage, whether as a jomt tortfeasor or other
wise, so however that no person shall be enutlcd to 1 ecover contribution
under this section from any person entitled to be indemnified by him in
respect of the liability in respect of wh1ch the contt ibution is sought.
(2) In any proceedings for contribution under this section, the
amount of the contribution recoverable from any person shall be such as
m1y be found by the court to be just and equitable having regatd to the
extent of that person's responsibility for the damage; and the court shall
have power to exempt any person from liability to make contribution, or to
direct that the contribution to be recovered from any person shall amount
to a complete indemnity.
PART IV
APPORTIONMENT OF LIABILITY IN CASES OF
CONTRIBUTORY NEGLIGENCE
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8. Apportionment of liability m ca~e of contributory rzrgligcnce.-(I) Where
any person suffers damage a'! the remit partly of his own fault and partly of
the fault of any other person or persons, a claim in respect of that damage
shall not be defeated by reason of the fault of the person suffering the
damage, but the damages recoverable in respect thereof sliall be reduced to
such extent as the court thinks just and eqUitable having regard to the
claimant's share m the responsibility for the damage:
Provided that-
(a) this sub-section shall not operate to defeat any defence arising
under a contract;
• (b) where any contract or enactment providing for the limitation of
liability is applicable to the claim, the amount of damage'! recoverable by
the claimant by virtue ofthis sub-section shall not exceed the max 1mum
limit so applicable.
(2) Where damages arc recoverable by any person by vi1 tue of sub
section (1), subject to any reduction as is therein mentioned, the court shall
find and record the total damages which would have been recoverable if
the claimant'had not been at fault.
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(3) Sec~ion 7 shall apply in any case where two or more persons are
IiabJc~<?r ~ou_lrl, if they had il!l been sued, be hilble. by virtue of ~nh-:;cction ,
( J) _in r~~pect o( 1 he damage, ~uffered by any person.
(4) Wb~te any pers.ln dies as the tesult partly orlm own fault and
partly of the fault of any other pet son or persons, and accordingly if an action
were brought for the benefit of the estate under Pa r1 II of this Act, the
Jamages recoverable woulrl be 1 educed under sub-section (I), and damages
•ecoverable in an action brought for the benefit of the dependants of that
person undei· the Indian Fatal Accidents Act, 1855, shf111 be reduced to a
propor.ti_opat~ e~ten_t.
(5) Where, in any ca'e to which sub-section (1) appltcs, one ol the
persons at f.l ult avotds liabihty t0 any other such person or his persona
representative on the plea thall the claim is ha!fed by ltmitation, he ~hall
not be enti~led.to recover any damages or contnbution from that other
person or tepre~ntativc by virtue of that sub-sect10n.
Explaualtou.-In this section, "fault'' means negligence, breach of
statutory duty or other net or om1ssion which 14ives 1 ise to a liabiltty to tort
or would,' apat t from this Act, gtve n~e to the defence of contt ibutMy
negligence; ~nd c'damage" includes loss of life and personal injUty.
PART v
REPEAL
9. Repeal.-(1) ,The Trav~core L~w ~~form~ (Miscella~e.<;>.u,s Provisions)
Act, 1124 (Act XII of 1124)) Is hereby repealed.
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(2) The Legal Representatives' ~its Act, 185.') (Central Act 12 of
1855), shall cease to apply to that parP~f,the State of Kerala wher_e lt was,
in force immediately'befou! the commencement of this Act.
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(3) Section 306 of the Indian Succession Act, 1925 (Central Act 39
• of 1925), so fal' as 1t 1elateR to right o! act10n m tmt~, ~hall cea~c to app~y
· to the State of Kerala.
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