These appeals are directed against two orders - first dated 1.07.2005 and the other dated 16.09.2005 passed by the Tamil Nadu State Consumer Disputes Redressal Commission in OP no. 119 of 1997. By means of the former order, the State Commission has disposed off two miscellaneous applications no. MP No. 54 of 2005 and 159 of 2005 made on behalf of K. Vignesh, under order XXII CPC seeking his substitution in the complaint filed by his mother (Laxmi deceased) and father after setting aside the abatement of the complaint and condoning the delay in substitution of the legal heir. The State Commission dismissed both the applications. Consequently, on a subsequent date by the later order, the State Commission dismissed the complaint itself. 2. The facts and circumstances which have given rise to these appeals may be noted thus Smt. Laxmi (now deceased) and her husband G. Kumar had filed a complaint OP No. 119 of 1997 in the State Commission seeking a compensation of Rs.9 lakh from the opposite parties, namely, Dr. Devkinayak, Gynaecologist, St. John’s Medical College Hospital, Bangalore and the United India Insurance Co. Ltd., alleging medical negligence on the part of the Gynaecologist in conducting the delivery of a premature child on 02.04.1996, leading to certain complications, death of the newly born baby on 03.04.1996 due to failure of power in incubator where the infant was kept. It was alleged that at the time of conducting the procedure, uterus was not cleaned and so Smt. Laxmi was sent to St. John’s Medical College Hospital for further treatment and management but to her dismay the treatment which she received there, was also not satisfactory and in fact led to further complications affecting her kidney for which she was required to undertake frequent dialyses. When the complaint was pending and was being contested by the opposite parties unfortunately, Smt. Laxmi died on 21.03.1999. It would appear that after hear death no prompt steps were taken for substitution of her legal heirs. It may also due to the fact the husband of Smt. Laxmi was already on record as one of the complainants. In the meantime, the complaint was dismissed in default on several occasions. It was after about 5 years that in the year 2004, two applications were moved on behalf of other legal heir, i.e., K. Vignesh, minor son of the deceased Laxmi through his father and natural guardian G. Kumar for substitution as other legal heir of the deceased. The said applications were opposed by the opposite parties mainly on the grounds that the complaints had already abated and the applicants were moved after undue delay which could not be condoned in the circumstances. The State Commission considered the objections and dismissed the applications by observing as under:- “6. In the affidavit filed in support of applications, it is clearly stated that she died on 21.03.1999. It is also stated that he was shocked and therefore did not inform his counsel immediately. But after getting the particulars of the legal representatives and the date of death of the deceased, he contacted his counsel and advised him to take necessary steps. He now submits that6 the delay is due to ignorance regarding the filing of the petition. The fact remains that the case underwent several adjournments after the death of the 1st complainant which was in March 1999. Since there was no representation on behalf of the complainant, the case was posted for dismissal thrice in the year 2004 and finally on 25/11/2004 the 2nd complainant appeared before this Commission. Therefore, on facts what we find is that there is enormous delay in the filing of the applications for condonation of delay to set aside the abatement. The affidavit only says that the complainant was ignorant of the procedure. Ignorance of law is not an excuse. Therefore, it is clear that no grounds are made out for condonation of delay for setting aside the abatement. It is really unfortunate that a lis has to be dismissed on that account. There has been some laches either on the part of the complainant or on the part of the counsel in this regard. When the complainant asserts that he informed his lawyer about it and also gave him the particulars, it is for the lawyer to have taken steps or he should have advised the complainant to take necessary steps. For there appears to be some omission on the part of the lawyer. Of course, lawyer who then appeared for the complainant is now not on record and the complainant is now represented by a different lawyer. 7. As a pure question of law we have to see whether the complainant having been laid claiming compensation on the ground of deficiency in rendering medical service and whether the cause of action would survive. For when the 1st complainant had died, pending complaint. It being a personal action with the death of complainant, it being a mere right to sue would come to end. Therefore, it cannot be transferred or inherited upon by the husband or children. The claim is for a compensation arising out of a tortuous liability and therefore, neither the husband nor other heirs of the complainant can be brought on record to prosecute the matter further. Since it being a mere right to sue, it can neither be transferred nor can be succeeded to by the heirs of the deceased. This position is well established by the decision of the National Commission reported in II (2003) CPJ 28 (NC). In such circumstances, we have to hold that both these applications deserves to be dismissed.” Aggrieved by the said order, the complainant and the applicants have filed the present appeals. 3. We have heard Mr. P.R. Kovilan, Advocate for the appellant and Mr. Balaji Srinivasan and Mr. H.K. Balaji for the respondents and have considered their respective submissions. This case in fact raises an important question of law as to the maintainability and continuance of a complaint like the one in the present case on the death of one of the complainants. In dismissing the applications moved on behalf of the proposed legal representative of the deceased, the State Commission was largely guided by the decision of this Commission in the case of “Janak Kumari versus Dr. Balwinder Kaur Nagpal & Anr. [II (2003) CPJ 28 (NC)].” That case was decided by this Commission on a consideration and interpretation of section 4 and 6 of the Transfer of Property Act, 1882. The Commission considered that the claim for compensation arising on account of negligence and deficiency in medical treatment was a claim of tortuous liability which is ‘a mere right to sue’ and therefore is not transferable and consequently, the legal representatives of the complainant who had filed a claim before the Consumer Fora for damages were not entitled to proceed with the complaint after the death of the complainant. 4. The question is as to whether that abstract proposition of law can be attracted to the facts and circumstances of the present case. Our answer is in the negative. This is for the reason firstly because, the complaint was originally filed not only by Smt. Laxmi (now deceased) alone but her husband, G. Kumar, had also joined as one of the complainants in making the complaint and seeking the relief. This would clearly show that both the above named complainants, Laxmi and G. Kumar had felt aggrieved by the actions / inactions of the opposite parties and mere equally interested in seeking redressal of their grievance as would be manifest from a reading of the complaint in its entirety. It is not disputed that the infant child of the complainants had died within 2 days of his birth in an incubator when he was in the case of respondent No. 1. At this stage we should not been taken as commenting as to whether, he died on account of the alleged negligence or otherwise. This allegation certainly afforded a cause of action in favour of both the complainants to file the complaint and seek redressal of their grievance. So far as the injury and loss suffered by Smt. Laxmi due to alleged negligence firstly at the end of Dr. K. Devkinayak, Gynaecologist and then at St. John’s Medical College Hospital, the husband could also feel aggrieved because it was alleged in the complaint that due to the complications, which followed after the treatment at both the places, Smt. Laxmi had developed renal problem for which she was required frequent dialysis and husband G. Kumar had to incur heavy expenditure in that treatment. 5. As to when the right to sue in respect of property survives is amply clear from a bare reading of Rule 1 of Order XXII CPC which lays down that there will be no abatement by any party’s death, if the right to sue survives. The core question which arises for determination, therefore, is whether on the death of Smt. Laxmi, right to sue survived in the present case or not? The legal position is very clear that it survives in favour of a legal representative or successor – in – interest of a suitor if the claim is in respect of some property, based on contract etc. and except in the circumstances mentioned in section 306, Indian Succession Act 1925, 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 on the Indian Penal Code (45 of 1860) 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 granting it would be nugatory. ” 6. Now, again the question is as to what amounts to personal injuries not leading to death. Giving a meaning which this expression is required to be given, we have no manner of doubt that the injury at least claimed to Smt. Laxmi on account of alleged acts of negligence on the part of the OP No. 1 Dr. Devkinayak, Gynaecologist, as also the St. John’s Medical College Hospital would fall in that expression because the complainant survived of the said personal injury. However, in the peculiar facts and circumstances of the present case her death could not lead to the abatement of the complaint in so far as the right of the other complainant G. Kumar to pursue the complaint in respect of injury caused to his wife leading to renal failure which required treatment, at huge expense which was to be borne by the complainant G. Kumar least in respect of the death of the infant child. 7. On the face of the above facts and circumstances we are of clear view that even-after the death of Smt. Laxmi during the pendancy of the complaint, the complaint did not abate and the other complainant, namely, G. Kumar, who was already on record alone was competent to persue the complaint. 8. It seems that as an abundant precaution and perhaps under some misconception, that the applications under Order XXII CPC were moved before the State Commission for bringing the minor son K. Vignesh also on record alongwith the other surviving legal representative of Smt. Laxmi, her husband G. Kumar being already on record. The applicants had given sufficient justification for not moving the application at the appropriate stage. It was mentioned that though the particulars in regard to the other legal representative, were given to the counsel representing the complainants but he neglected to file the application for substitution within the prescribed period. Afterwards, the complaint was dismissed on several occasions and it must have been revived on prayer being made to that effect. The courts have adopted liberal approach in dealing with the applications for condonation of delay and for setting aside the abatement of the proceedings. In this case, having regard to the entirety of the facts as noted above, and more particularly that the complaint filed initially had not abated, it was just a formality to bring the other legal representative on record. The State Commission ought to have considered these peculiar circumstances and ought to have allowed the prayer for setting aside the alleged abatement of the complaint as also for substitution of the legal representative, namely, K. Vignesh. 9. In the result and for the foregoing reasons, we consider it expedient in the interest of justice to allow the present appeals and set aside the impugned orders passed by the State Commission. The applications will be deemed to have been allowed and name of K. Vignesh is ordered to be substituted as one of the complainants through his father and natural guardian G. Kumar and the complaint shall be proceeded with further on merits in accordance with law from the stage it was dismissed. Parties are directed to appear before the State Commission on 12.08.2010 to receive further directions in the matter. No order as to costs in these proceedings.