024-NLR-NLR-V-79-2-KRISHNASAMY-VANGADASALAM-alias-VENGADAN-and-ANOTHER-Substituted-Plaintiff-.pdf
VangadULsaUim v. Karuppan
150
1978 Present: Samerawickrame, J., Wimalaratne, J. andVythialingam, J.
KRISHNASAMY VANGADASALAM alias VENGADAN andANOTHER, Substituted Plaintiff-Appellants.
and
ADIKA PUNDAYAN KARUPPAN alias KARUPPIAHand Others, Defendants-Respondents.
Z.C. 130/75 (F)—D.C. Avissawella, 13088/M
HAMERA WICKRAME, J-—Vangadasalam v. Karuppan
151
Delict—Action for damages by plaintiff, an employee of defendant firm—Death of plaintiff—Whether stage of “ litis contestatio ”reached—Ariiiilitm action—Does such action die with the plaintiff.Conciliation Boards Act—Certificate issued in respect of dispute bettoeenplaintiff and K. & Co.—Partners of firm substituted—Would suchcertificate be sufficient compliance with provisions of Act.
Where in an action filed by a plaintiff against a firm of whichhe was an employee, for damages resulting from injuries causedby the falling of negligently stacked rice bags, the plaintiff diedbefore answer was filed—
Held: (1) That a personal action dies with the plaintiff unlessthe stage of litis contestatio has been reached. This takes placewith the joinder of issue or the close of pleadings.
(2) That, however, the above rule does not apply to the Aquilianaction where the heirs of the original plaintiff can maintain an actionagainst the wrongdoer to recover patrimonial loss suffered. Thusa claim in respect of expenses incurred or other patrimonial losswould survive to the heirs of the original plaintiff but not a claimin ic-pect of pain and suffering.
Held further – That even after the present 1st, 2nd and 3rd defen-dants who were partners of the firm of Karunasena & Co. had beensubstituied as defendants, a certificate from the Conciliation Boardin respect of a dispute between the original plaintiff and Karunasena& Co. was sufficient compliance with the provisions of the Concili-ation Boards Act. The plaintiff’s cause of action was against the’threesubstituted defendants not personal.y but as partners of Karunasena& Co.
Case referred to :
Muhcclli v. Nadarajapillai, 19 N.L.R. 461.
A.PPEAL from a judgment of the District Court, Avissawella.
W. Obeysekera, with S. Paramesiuaran and C. P. Illangakoon,for the plaintiff-appellant.
C. Amerasinghe, with C. Suntheralingam, for the defendants-respondents.
Cur. adv. vult.
March 21, 1978. Samerawickrame, J.
The original plaintiff filed this action against Messrs. Karuna-sena & Co. claiming damages in a sum of Rs. 15,000. He averredthat lie was an employee of the defendant firm and worked inthe defendant’s shop; that the defendant had so negligentlystacked rice bags that they slipped down and dumped uponthe plaintiff and caused him grievous injuries. Before any answerwas filed, the original plaintiff died and the present plaintiffshave been substituted in his place. Karunasena & Co. appears tohave filed answer and thereafter the present defendants, whoare partners of the firm of Karunasena & Co. have beensubstituted as defendants.
152BAMERAWICIvRAME, J.—Vangadaealam v. Karujipan
At the trial, certain issues were taken up in limine which setout grounds urged by the defendant why the plaintiffs couldnot maintain the action. The learned District Judge has heldthat there is no material to show that the dispute between theplaintiffs and the present defendants has been the subject ofan inquiry by the Conciliation Board. He appears to have goneon the basis that the certificate from the Chairman of the Con-ciliation Board refers to a dispute between the plaintiffs andKarunasena & Co. and not between the plaintiff and the present1st, 2nd and 3rd defendants. The 1st, 2nd and 3rd defendants,however, were the partners of the firm of Karunasena & Co.The cause of action set out in the plaint was not in respect ofsome private obligation of the defendants but in respect of theclaim against them as members of the firm of Karunasena & Co.
I am, therefore, of the view that the certificate from the Chairmanof the Conciliation Board filed in the plaint is sufficient evidenceof a dispute between the plaintiff and the 1st, 2nd and 3rddefendants being the subject of an inquiry before that Board.
Learned counsel for the defendants-respondents sought tosupport the order upon a ground upon which the learned DistrictJudge had held against the defendants. He submitted that thecause of action did not survive after the death of the originalplaintiff. A personal action dies with the plaintiff unless the^stageof litis contestatio has been reached. It would appear that litiscontestatio takes place with the joinder of issue or the close ofpleadings (see Voet 47.10.22). In Muheeth v. Nadarajapillai, IS'N.L.R. 461 at 462, Wood Renton, C.J. said—
“ An action became litigious, if it were in rem, as soon asthe summons containing the cause of action was served onthe defendants ; if it was in personam on litis contestatio,which appears to synchronize with the joinder of issue or theclose of the pleadings. ”
In this case, that stage had not been reached when the originalplaintiff died. The above rule, however, does not appear to applyto actions in respect of delicts which fall under the Lex Aquilia,where the heirs of an original plaintiff maintain an actionagainst a wrongdoer to recover what is known as patrimonialloss.
Paragraphs 5 and 6 of the plaint state as follows: —
“5. The aforesaid injuries are direly grievous and have leftthe plaintiff amongst other things
paralysed below the waist
with tubes to urinate
153
Baby Nona v. Dine» Silva
unable to move
with loss of the use of legs
bedsores
(/) and the need of an attendant.
6. The substituted plaintiffs claim for the injuries aforesaidas damages a sum of Rs. 15,000 which sum or any partthereof the defendants have failed and neglected to paythough often demanded. ”
“From the above it is not clear whether plaintiff claims inrespect of pain and suffering caused to him or in respect ofexpenses incurred because of the injuries. Paragraph 5 (/) at leastsuggests that the damages may also be in respect of expenses.In my opinion, any claim in respect of pain and suffering doesnot survive to the heirs of the original plaintiff but a claim inrespect of expense or other patrimonial loss would survive. Thesubstituted plaintiffs may therefore maintain the claims in sofar as they relate to partrimonial loss. I.
I.would, therefore, set aside the order dismissing the actionand send the case back for determination in respect of suchclaims as the substituted plaintiffs may maintain for patrimonialloss. The substituted plaintiffs-appellants will be entitled to halfcosts of appeal.
Wimalaratne, J.—I agree.
Vythialingam, J.—I agree.
Set aside.