These appeals are preferred against the judgment and decree passed by the Subordinate Judge, Ottapalam in O.S. No.124/90. A.S. No.367/93 is filed by the plaintiff in the suit with a prayer for enhancement and for making the 2nd defendant also personally liable. A.S.No.252/93 is filed by the first defendant in the suit for setting aside the judgment and decree. The brief facts necessary for the disposal of the appeal are stated as follows.

2. The plaintiff an eight year old second standard school student the first defendant a third standard school student, It is the case of the plaintiff that on 1.2.90 when he was standing outside his class room the first defendant came and asked about the whereabouts of his brother and immediately without any reason or provocation slapped on the face of the plaintiff resulting in grievous injury on his right eye. Immediately the boy was taken to the Mannarkkad hospital first and later before the Little Flower Hospital, Ankamali. The boy unfortunately lost his eye sight. So the boy had moved for damages against his school mate and his father for damages.

3. On the other hand the first defendant would contend that he had not slapped the plaintiff at all and the defendants' have no knowledge about the incident. It is submitted that the first defendant was nine years old and he was studying in the third standard he had no intention of causing any injury or pain to the plaintiff. So it will not amount to a battery or assault and it was not at the instance of the father neither and so the plaintiff is not entitled to any damages.

4. On appreciation of the evidence the Trial Court granted a decree in favour of the plaintiff to be realised from the first defendant. The 2nd defendant was exonerated from the liability. It is against that decision these appeals had been filed. During the pendency of the appeal plaintiff died and his brothers and sisters have been impleaded as supplemental appellants before this Court.

5. Now the question for consideration first is that since the plaintiff died whether the action can continue. The learned counsel appearing for the defendants would contend that in view of S.306 of Indian Succession Act the cause of action will not survive and therefore the plaintiff is not entitled to any relief. If a very liberal interpretation to S.306 is given it is contended that only the question of loss of estate will survive and therefore the relief has to be restricted to that extent. He will also refer to the provisions of the Kerala Torts (Miscellaneous Provisions) Act, 1977, Ss.2 and 3. On a combined reading, according to the learned counsel, the cause of action alone would survive only against the loss of estate therefore the plaintiff's claim has to be restricted to that extent.

6. On the other hand, the learned counsel for the plaintiff would contend that S.2 and the repeal of S.306 of the Indian Succession Act by virtue of S.9 would enable the legal representatives of the plaintiff to claim damages. S.2 of the Act mentioned above states that,

“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 cause of action for determination or seduction or for inducing one spouse to leave or remain part from the other or to claims for damages on the ground of adultery.”

If the argument of the learned counsel for the defendant is to be accepted then I feel there was no necessary for a legislation like Kerala Torts (Miscellaneous Provisions) Act, 1977. All the Courts including the Apex Court while incorporating and considering the validity of S.306 of the Indian Succession Act had clearly explained that at least the cause of action relating to loss of estate will survive. It is only a claim relating to the loss of estate which would survive. If it was the intention, there was no necessity for inclu