The KERALA TORTS (MISCELLANEOUS PROVISIONS) ACT, 1976

THE KERALA TORTS (MISCELLANEOUS PROVISIONS) ACT, 1976
 (ACT 8 OF 1977)
CONTENTS
Preamble.
Sections:
1.Short title, extent and commencement.
2. Effect of death on certain causes of action.
3. Damages recoverable in such cases.
4. Action in cases where death occurs before or at the same time the damage is suffered.
5. Rights conferred by this Act to be in addition to rights conferred by the Fatal Accidents 
Act.
6. Damages provable in insolvency.
7. Proceedings against, and contribution between, joint and several tortfeasors.
8. Apportionment of liability in case of contributory negligence.
9.Repeal.
___
 ACT 8 OF 1977
THE KERALA TORTS (MISCELLANEOUS PROVISIONS) ACT, 1976*
An Act to unify and amend the law relating to survival of causes of action, liability of joint
tortfeasors and liability in cases of contributory negligence in respect of torts.
Preamble.— WHEREAS it is expedient to unify and amend the law relating to survival
of  causes  of  action,  liability  of  joint  tortfeasors  and  liability  in  cases  of  contributory
negligence in respect of torts;
BE it enacted in the Twenty-seventh Year of the Republic of India as follows:—
PART I
PRELIMINARY
1. Short title, extent and commencement. — (1) This Act may be called the Kerala Torts
(Miscellaneous Provisions) Act, 1976.
(2) It extends to the whole of the State of Kerala .
(3) It shall come into force at once.
PART II
EFFECT OF DEATH IN RELATION TO CERTAIN CAUSES OF
 ACTION IN TORTS
2. Effect of death on certain causes of action. —  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  section  shall  not  apply  to  causes  of  action  for  defamation  or
seduction or for inducing one spouse to leave or remain apart from the other or to claims for
damages on the ground of adultery.
3. Damages recoverable in such cases. —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 —
* Received  the assent  of  the Vice-President  acting  as  President  on  the 17th day  of  February,  1977  and
published in the Kerala Gazette Extra ordinary No. 138 dated 1st March 1977.
(a) shall not include any exemplary damages;
(b) in the case of a breach of promise to marry, shall be limited to such damage, if
any, to the estate of that person as flows from the breach of promise to marry;
(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 respect of funeral expenses may be
included.
4. Action  in cases where  death occurs before or at the  same time the  damage  is
suffered.— 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. Rights conferred by this Act to be in addition 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
1855) 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 Act as it applies in relation to
other causes of action not expressly excepted from the operation of section 2 of this Act.
Explanation.— In this section and in sections 7 and 8, “dependants” means the wife,
husband, parent and child within the meaning of the Indian Fatal Accidents Act, 1855.
6. Damages provable in insolvency.— In the event of the insolvency of an estate against
which proceedings are 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 unliquidated damages arising otherwise than by a contract, promise or breach of trust.
PART III
PROCEEDINGS AGAINST, AND CONTRIBUTION 
BETWEEN TORTFEASORS
7. Proceedings against, and contribution between, joint and several tortfeasors .— (1)
Where damage is suffered by any person as a result of a tort (whether a crime or not), —
(a) judgment obtained against any tortfeasor liable in respect of that damage shall
not be a bar to an action against any other person who would; if sued, have been liable as a
joint tortfeasor in respect of the same damage.
(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 tortfeasors liable in respect of the damage (whether as joint tortfeasors or
otherwise), the sum recoverable under the judgements given in those actions by way of
damages  shall  not in the aggregate exceed  the  amount of the  damages awarded  by the
judgement first given; and in any of those actions, other than that in which judgement is first
given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was
reasonable ground for bringing the action.
(c) any tortfeasor liable in respect of that damage may recover contribution from
any other tortfeasor who is, or would if sued have been, liable in respect of the same damage,
whether as a joint tortfeasor or otherwise, so however that no person shall be entitled to
recover contribution under this section from any person entitled to be indemnified by him in
respect of the liability in respect of which the contribution is sought.
(2)  In  any  proceedings  for  contribution  under  this  section,  the  amount  of  the
contribution recoverable from any person shall be such as may be found by the court to be
just and equitable having regard 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
8.  Apportionment  of  liability  in  case  of  contributory  negligence.— (1)  Where  any
person suffers damage as the result 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 shall
be reduced to such extent as the court thinks just and equitable having regard to the claimant's
share in 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 damages recoverable by the claimant by virtue of this
sub-section shall not exceed the maximum limit so applicable.
(2) Where  damages  are  recoverable  by  any  person  by  virtue  of  subsection  (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.
(3) Section 7 shall apply in any case where two or more persons are liable or would,
if they had all been sued, be liable, by virtue of sub-section (1) in respect of the damage
suffered by any person.
(4) Where any person dies as the result partly of his own fault and partly of the fault
of any other person or persons, and accordingly if an action were brought for the benefit of
the estate under Part II of this Act, the damages recoverable would be reduced under sub-
section (1), and damages recoverable in an action brought for the benefit of the dependants of
that person under the Indian Fatal Accidents Act, 1855, shall be reduced to a proportionate
extent.
(5) Where, in any case to which sub-section (1) applies, one of the persons at fault
avoids liability to any other such person or his personal representative on the plea that the
claim is barred by limitation, he shall not be entitled to recover any damages or contribution
from that other person or representative by virtue of that sub-section.
Explanation.- In this section, “fault” means negligence, breach of statutory duty or
other act or omission which gives rise to a liability to tort or would, apart from this Act, give
rise  to  the  defence  of  contributory  negligence;  and  “damage”  includes  loss  of  life  and
personal injury.
PART V 
REPEAL
9. Repeal .— (1) The Travancore Law Reforms (Miscellaneous Provisions Act, 1124
(Act XII of 1124), is hereby repealed.
(2) The Legal Representatives' Suits Act, 1855 (Central Act 12 of 1855), shall cease
to apply to that part of the State of Kerala where it was in force immediately before the
commencement of this Act.
(3) Section 306 of the Indian Succession Act, 1925 (Central Act 39 of 1925), so far
as it relates to right of action in torts, shall cease to apply to the State of Kerala.
____

‹ Prev All Kerala acts Next ›