Professional Documents
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Tort 1
Tort 1
2. Define tort and explain its essential elements. Distinguish Tort from breach of contract and crime. If privity
necessary to support an action in tort. How is a tort different from other civil wrongs. Can the same act be a
tort, crime and breach of contract. Tortious liability arises from the breach of a duty primarily fixed by law.
This duty is towards persons generally and its breach is redressable by an action for unliquidated damages.
Explain this statement of Winfield. A tort is a species of civil injury or wrong. Examine this definition and add
other features to make it comprehensive.
Ans Literal meaning of the Tort :- The term tort is a the French tort. It is driven from the latin term tortum which
means a conduct which is twisted crooked or wrong causing injury to a person or persons. The persons who commit
tort is called a tortfeasor or wrongdoes and his misdoing is a tortuous act.
Main elements of tort 1.Tortious liability arises from the breach of a duty primarily fixed by law. 2. Such primary
duty is towards persons generally. 3.Such breach of primary duty is redressable by an action for unliquidated
damages. Factors defining the tort 1.There must be some act or omission on the part of the defendant independent of
contract.2. Such act or omission must not be authorised by law.3.There must be infringement of some legal right of
the plaintiff by such act or omission of the defendant. 4.Such act or omission must give rise to an action for damages
at the suit of the injured party. Essential of tort 1.A tort is a civil wrong 2. Such civil wrong is different from other
civil wrongs. 3. The remedy for such civil wrong lies in an action for unlquidated damages
6. What do you understand by the doctrine of vicarious liability. Is such liability justified. How far a master is
liable for the tort committed by his servant. In what classes of cases and on what grounds may one persons sue
and be sued for a tort committed by another.
Ans. Vicarious liability :- It means the liability of one person for the torts committed by another. Under the law of
tort the general rule is that every person is responsible for his own acts. But there are circumstances where liability
attached to a person for the wrongs committed by others. How Vicarious liability arises 1.Liability to Ratification
2. Liability by special relationship 3. Liability by abatement
Normally, the person who is liable for a wrong is he who does the wrong. But liability for another may arise where the
doer of the act and the persons sought to be held liable therefore are related to each other as 1. master and servant, 2
owner and independent contractor, 3 principal and agent, 4 company and its directors, 5 guardian and ward.
Principles on which vicarious liability is justified 1. He who does an act through another, is deemed in law to do it
himself. A person who puts another in his place to do a class of acts in his absence, necessarily leaves him to
determine according to the circumstances that arise when an act of that class is to be done. 2.Respondent superior
The master is answerable for every such wrong of the servant or agent as is committed in the course of the service,
though no express command or privity of the master is proved. How far a master is liable to third person for torts
of his servant -According to salmond a wrongful act is said to be done in the course of employment if (i) it is
authorized by the master, (ii) is a wrongful and unauthorized mode of doing some act authorized by the master.
When is master liable :- 1. where the wrong is the natural consequence of the authorized act.2. where the wrong is
due to the servants negligence.3. The wrong may be due to excess or mistaken execution of a lawful authority.4. The
wrong may be a willful wrong 5.The wrong may be die to servants fraudulent act 6.The wrong may be due to
servants criminal act
8. What are the various kinds of damages available in tort action. How damages are assessed in India.
How damages are assessed in India :- Measure of damages means the footing upon which the quantum or amount of
damages to be awarded in a given case may be calculated. The law has not prescribed any arithmetical standard to
measure damages ina suit under the law of torts, nor can it possibly do so.
What is the basis of such compensation was a problem before the house of lords by way of damages and laid down the
following rules :- 1.The test to determine compensation is not the length of time of life of which a person has been
deprived. 2 .The test of happiness of life is not to be subjective. 3.Very moderate damages should be allowed for an
action under this lead. 4 .The economic and social position of deceased has to be ignored in assessing such damages.
9. Define defamation. What is meant by libel and slander. Distinguish between them. What defences are
available to the defendant in a suit for defamation. Explain the statement that the greater the truth the greater
the liable.
Ans. Defamation :- Every person has an absolute right to preserve his reputation. This right is
acknowledged as an inherent personal right of every person. It is a right in rem i.e right available against the
whole world. A mans reputation is his property and if possible more valuable than any other property.
Types of defamation :-1. Libel :- A libel is a publication of false and defamatory statement, in some permanent form,
tending to injure the reputation of another person, without lawful justification or excuse. Essentials are 1. the
statement must be false, 2. it must be permanent form, 3 it must be defamatory
2. Slander A slander is a false and defamatory verbal or oral statement in some transitory form, tending or injure the
reputation of another, without lawful justification or excuse. By reputation is meant the opinion of the world in
general. Essentials are :- 1. the matter complained of must be defamatory, 2 must be false, and must not be
privileged, 3 must refer to the plaintiff, 4 must be published, 5 must be published by the defendant, 6 must be special
damage to the plaintiff. Slander is actionable per se without proof of special damage to the plaintiff 1.Accusation
of criminal offence 2.Accusation of virulent disease 3.imputation against office, profession or trade.4 unchastity in
woman or gir 5Aspersion on caste.
Essentials of defamation :- 1.The statement must be defamatory 2. the statement must refer to the plaintiff 3.the
statement must be pubslished
Defences of defamation :-1 Justification by truth 2. fair and bona fide comment 3.privileged communications
Privileged occasions are of the following two kinds (a) Absolute privilege-privilege arise in the following four kinds
of proceedings 1. Parliamentary proceedings 2. Judicial proceedings 3.military and naval proceedings 4. state
proceedings (b) qualified privilege 1. statement made in performance of a duty 2.statement made in protection of
common interest 3 fair and accurate reports like reports and judicial proceedings, extracts or abstracts form report of
parliamentary proceedings, fair reports of parliamentary proceedings, reports of quasi judicial proceedings
10 What is meant by contributory negligence and its last opportunity rule. Explain the doctrine of contributory
negligence is a factor in extinguishing tortuous liability.
Ans.Contributory negligence :- Contributory negligence means the negligence of the plaintiff is not avoiding the
consequence arising from the negligence of the defendant when means and opportunity are afforded to do so. It is the
non exercise by the plaintiff of such ordinary care, diligence and skill as would have avoided the consequence of the
defendants negligence.
The doctrine is based on the two maxim 1. volenti not fit injuria and 2. injure non remota causa sed proxima spectatur
1. where a man who keeps his hand outside the window of a railway coach or hangs perilously on foot bord knowing
the risk in either case, is only inviting the injury and cannot claim damages against the railway company.
2.where the plaintiff was crossing a railway line a servant of the railway company in charge of the crossing shouted a
warning to him . Owing to his deafness the plaintiff was unable to hear the warning, and was consequently injured. It
was held that this amounted to contributory negligence of the plaintiff.
Rules regarding the liability of contributory negligence :-
1. wherever the immediate proximate or decisive cause of the damage is the plaintiffs own negligence o want of
care and caution so that but for such negligence or want or ordinary care and caution on his part.
2. The plaintiff however is not disentitled to recover unless it is shown 1. that one might by the exercise of
ordinary care have avoided the consequences of the defendants negligence or 2. that the defendant could not
avoid the consequences of the plaintiffs negligence.
3. If there has been as much want of reasonable care on the plaintiffs part as on the defendant s the plaintiff
cannot sue the defendant.
Contributory negligence is no defence in the following cases 1.where rightful acts are assumed 2.where defendant
had later opportunity 3. Doctrine of alternative danger 4.Maritime law 5.Childern
11. Discuss the various remedies available in an action for tort.
The various remedies available to the plaintiff in an action for torts may be shown in a tabular as under
Remedies :-1) Judicial:- a) damages :- I) contemptuous , ii) nominal, iii) substantial, iv) exemplary, b) Injunction :- I)
Temporary, ii) perpetual iii) mandatory, iv) prohibitory, c) Specific restitution of property.
2. Extra judicial remedies :- 1 Self defence , 2. expulsion of trespass, 3. re-entry on land, 4. recaption of goods, 5.
abatement of nuisance, 6. distress damage feasant
12. Discuss fully the rule of absolute or strict liability. Explain the rule laid down in Rylands Vs. Fletcher. Are
there any exceptions to this rule. Discuss.
Ans. Absolute Liability :- There are certain cases in which the defendants are under the duties to secure safety. In
such cases even if there is no negligence or wrongful intention on the part of the defendant yet he is liable for
direct consequence of his acts. That is why it is called absolute liability. It may be defined as a duty, which
renders a man liable without any fault of his, irrespective of any consideration of intention or negligence on his
part.
The liability for breach of absolute duty to insure safety may arise with respect to 1) cases relating to escape of
dangerous things 2.) cases relating to escape of animals 3) cases relating to the sue of things in their nature
specially dangerous . such as fire , loaded firearms , explosive, poisonous , drugs etc. 4) cases relating dangerous
premises 5)persons professing skill
Rylands Vs. Fletcher :- It is the most important case relating to the escape of dangerous things. After the decided
case it brings that if a person brings or accumulates on his land anything which, if it should escape , may cause
damage to his neighbours, he does so at his own risk. If it does escape and cause damage, he is responsible ,
however careful he may have been and whatever precautions he may have taken to prevent the damage.
Conditions for the application of strict liability :-b there should be an escape from the land of something likely to
do mischief if it escapes. 2) There should be non natural use of land
Indian law :- it has been held in several cases that the principle of Rylands Vs. Flethcher applies in India. Thus, when
the owner of the land had penned back the water of a stream by erecting a bund upon his land, so as to inundate
the land of his neighbour, without the latters permission it was held that the owner was liable.
Exceptions :-1) Vis major or Act of God. 2) Act of a stranger 3) Plaintiffs own fault. 4) Common benefit 5)
Statutory authority
13. What do you understand by trespass. What are the defences open to the defendant in such action.
Ans. Trespass :- Trespass to land is an unwarrantable entry upon the land of another, or any direct and immediate act
of interference with the possession of such land. To constitute the wrong of trespass, neither force nor unlawful
intention nor actual damage nor breaking of any enclosure is necessary. Every invasion of private property, be it so
minute is a trespass.
Trespass to land is a continuing wrong which lasts so long as the injury to the land continues and gives rise to actions
so long as it lasts. How trespass is committed :- 1) Trespass by way of wrongful entry 2) Trespass by remaining on
the land 3)Trespass by placing things on the land
Essential conditions for trespass :-
1. That he was in actual possession of the land at the time of trespass; he must have effective possession , and
not mere user. It is immaterial whether his possession is rightful or wrongful
2. that there was direct interferences with the possession of his land, though there is no need to prove actual
damage, since trespass is actionable per se.
Plaintiffs remedies :-1) He may bring an action against the wrong does. 2) he may forcibly defend his possession or
forcibly eject him 3) he may obtain an injunction to restrain a continuing or a threatened trespass.
Defences of trespass :- 1) prescription 2) Leave and licence 3) Authority of law:- a) Execution of legal process B)
distress c) distress damage feasant 4) Act of public necessity 5) Self defence 6)Re-entry on land 7) Re-taking of goods
and chattels (re-caption) 8)Abatement of nuisance 9)Special property or easement
Definition of trespass ab-initio:- When a person enters upon the land of another by authority of law and is
subsequently guilty of an abuse of his authority by an act of misfeasance, his misconduct relates back, so as to make
his original entry tortuous, and he is liable in damages, not only for the entry itself but also for subsequent acts.
Essential conditions :-1) Authority must be given by law 2)Subsequent act must be a misfeasance
14. What do you understand by the malicious prosecution. Explain fully with the help of leading case provided
in your course.
Ans.Malicious Criminal prosecution :- malicious prosecution means the malicious institution against another of
unsuccessful criminal or bankruptcy or liquidation proceedings within reasonable or probable cause. It may also be
defined as the institution against an innocent person o unsuccessful criminal, bankruptcy or liquidation proceedings
without reasonable and probable cause and in a malicious spirit.
Essentials of malicious prosecution :- 1) That he was prosecuted by the defendant 2)That the proceedings
complained of terminated in plaintiffs favour 3) that he was prosecuted without any reasonable and probable cause.
4) that he was prosecuted with the malicious intention. 5)That the plaintiff suffered damage
15. Explain the principle of nuisance. What are the defences open in an action based on nuisance. Define
nuisance. Is coming to nuisance a defence for the defendant. Illustrate your answer. What is public nuisance.
Can it be private also. Distinguish between public and private nuisance.
Ans. Nuisance :- The word nuisance is derived from the French word nuire and the latin word nocere meaning to do
hurt or to annoy. Nuisance has been defined to be anything done to the burt or annoyance of the lands, tenements or
hereditament of another, and not amounting to a trespass.
Characteristics :-1)It implies that one should use ones property in such a way that no injury is done to anothers use
of property. 2) It is different from trespass because it is regarded an injury to some right accessory to possession but
not to prossession itself. Kinds of Nuisance - 1) Public Nuisance means an act or omission which cause any common
injury danger of annoyance to the public or to the people in general who dwell or occupy property in the vicinity.
2) Is coming to nuisance a defence for the defendant - Under the law of tort no defence is available to the defendant
that the plaintiff himself came to the nuisance. In fact, if the nuisance already exists in a particular place and the
plaintiff thereby suffered damage due to that the defendant cannot take the defence that the plaintiff himself came to
nuisance.
When can public nuisance become private nuisance : -Although public nuisance is an offence and no suit for
damages can be filed for it vet a public nuisance may become a private nuisance if the plaintiff satisfies the
following three conditions 1) special damage 2) Direct damage 3) Substantial
Private Nuisance :- A private nuisance is some unauthorized use of mans own property, causing damage to the
property of another or some unauthorized interference with the property or proprietary rights of another, causing
damage, but not amounting to prespass. Private nuisance includes obstruction to light and air, wrongful escape of foul
gas, or noise water, filth, germs etc. Kinds of Pvt. Nuisance 1) Damage to Property :- In case of damage to property
, any sensible injury would be sufficient to support an action. In consideration whether an act is a nuisance , not only
the thing done, but also the surrounding circumstances, must be taken into account.2) Physical discomfort :- In case
of the physical discomfort, the act complained of must be (i) in excess of the natural and ordinary course of enjoyment
of the property and (ii) materially interfering with the ordinary comfort of human existence.
Defences of Nuisance 1) Grant 2) Prescription 3)Statutory authority
Mental or Nervous Shock :- it means a shock to the moral or intellectual sense, by nervous shock mean a shock to
the nerve and brain structures of the body. The phrase nervous shock is generally used as a convenient caption for
discussing the cases on the subject, but the words nervous mental or emotional shock are now used interchangeably.
False imprisonment :- It means the total restraint of the liberty, for however short a time, without lawful justification.
Such a restraint may be either physical or by a mere so of authority.
In an action for false imprisonment , the plaintiff must prove the following two things
1.A complete deprivation of liberty:- In an action to succeed the plaintiff need not prove an actual imprisonment in the
sense of imprisonment in a jail. He must prove however that there is a complete deprivation of his liberty. Thus, no
action lies where the plaintiff is unlawfully prevented from going in a particular direction.
2.The detention must be unlawful :- It must detail the plaintiff unlawfully. It is detention is made in accordance with
the powers given by law to the defendant , then no action les.
Deceit :- Fraud or deceit means a false representation of a fact made with the knowledge of its falsehood, or without
belief in its truth, or a reckless statement whether it be true or false, with intent to induce a person to act in reliance
upon it, with the result the person acts on it and suffers damage. Essentials of Deceit :- 1.False representation
2. Knowledge of its falsity 3.plaintiff to act upon it 4.Damage to plaintiff
Remoteness of damage :- the damage suffered by the plaintiff must be the direct and natural cause of the defendants
act. the law will permit no damages to be recovered, except such as are the natural and legal consequences of a
wrongful act.
Damage is said to be too remote, when, although arising out of the cause of action, it does not immediately and
necessarily flow from it, or is such which could not have reasonably been foreseen. A man is not liable for all the
consequences of his wrongful act or default. Liability must be founded on the act which is the immediate or direct
cause of the harm.
Conspiracy :- it may be defined as when two or more persons without lawful justification , combine for the purpose
of willfully causing damage to the plaintiff, and actual damage results therefrom they commit the tort of conspiracy.
Essentials :-1. There must be a combination of two or more persons. 2.It must be without lawful justification 3.It
must be for the purpose of willfully causing damage to the plaintiff 4. Actual damage must result from such
combination
18. What are the two rival theories regarding the foundation of tortuous liabilities. Explain.
Ans. Regarding the foundation of the tortuous liability a question is generally asked as to whether there is any general
principles of liability in tort. The question is often posed in the form is there a law of tort or only a law of torts. Two
rival theories , one say there is general principle of liability as such but only a definite number of torts as trespass,
negligence, nuisance, defamation and so on and a plaintiff has no remedy unless he brings his case under one of the
nominate torts.
Salmonds theory i.e the law of torts :- According to him just as criminal law consists of a body of rules
establishing specific injuries. Neither in the one case not in the other is there any general principle of liability.
Salmond is of the opinion that there was no English law of tort, there was merely law of torts i.e list of acts and
omissions which in certain conditions were actionable.
Salmond has supported his view by citation of several cases in which the plaintiff suffered manifest injury and yet was
unable to recover any damages in an action in tort cases in which there was damnum sine injuria.
Criticism :- 1. The case of damnum sine injuria cited by salmond do not really support his theory. It does not in the
least follow that, because all unjustifiable harm is tortuous, all harm is tortuous or that any one who has been harmed
by his neighbour can go into a law court with the confident expectation of being accorded a remedy. He will recover
nothing if he alleges a specific tort and fails to prove some essential ingredients in it i.e. if he sues for the tort of
negligence and cannot prove a duty to take care on the part of the defendant.
2.While there is some force for Dr. jenks criticism it seems to be scarcely consistent with facts. It is not really true
that all the new torts known to us are substantially similar to torts which were already in existence.
3.The common law has not proved powerless to attach new liabilities and creates new duties where experience has
proved that it is desirable. There is a cause action at common law whether there is negligence causing damage in
circumstance in which a duty is owed to plaintiff to take care & it is for courts to say when there is a duty to take care.
Winfields theory A law of tort :- Winfield is the chief exponent of this theory. He says all injuries done to another
person are torts, unless there is some justification recognized by law. This according to this theory tort consists nor
merely of all those torts which have acquired specific names but also includes the wider principles that all
unjusticiable harm is tortuous.
This theory has been supported by the dicta of some eminent judges both anciem and modern. It is however,
reinforced by the fact that the courts have repeatedly extended the domain of tort by creating a new torts i.e. torts to
which specified names have been given. This creation of new nominate torts is exactly what one would expect if the
principle that all unjustifiable farm is tortuous is correct.
19.Define Negligence. What are its essential elements which the plaintiff must prove in order to recover
damages from the defendant.
Ans. Negligence :- It means the want of proper care and carelessness. The various jurists defined negligence as under
1. Dr. Under hill : Negligence consists in the omission to do something or he doing of something which a prudent man
would not do and is actionable whenever as between the plaintiff and defendant, there is a duty cast upon the latter no
to be negligent and a breach of this duty which causes damage to the plaintiff.
According to circumstances here means that a particular act may or may not by negligent depends wholly according to
circumstances. In other words it is not the act that gives the idea of negligence but the negligence is to be determined
under what circumstances that particular act is committed.
Essentials :-In case of negligence a plaintiff must prove the following 4 elements1.That the defendant was under a
legal duty to take care 2. that the duty was towards plaintiff 3.that the defendant was guilty of the breach
of that duty 4.that the plaintiff suffered damage.
What defences are available to the defendant in case of negligence.
In case of negligence the defendant can take the following defences :- 1. Contributory Negligence 2.Act of God or vis
major :- According to Sir Fredric Pollock :- Act of God is an operation of natural forces so unexpected that no human
foresight or skill could reasonably be expected to anticipate it.
Thus act of god includes those consequences which are occasionally the elementary force of nature unconnected with
the agency of man. Essentials of Act of God :-1.That event causing damage was the result of natural forces without
any intervention from human agency 2. that event was such that the possibility of such an event could not be
recognized by using reasonable care and foresight.
Whether a particular event amounts to an act of god or not is a question of fact. Now a days the scope of this defence
is very limited because with the increase of knowledge the foresight also increases and it is expected that the
possibility of the event could have been visualized.
What is not included in service :- Advocates service, when service suffers from deficiency , deficiency in airlines
service, deficiency in service of a bank, deficiency in medical professionals service, deficiency in service of local
authority or government, Deficiency in insurance companys service, deficiency in services of a teacher, bank-
guarantee in s service.
Deficiency :- It means any fault, imperfection , shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or under any law for the time being in force or has been
undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any services.
What amounts to deficiency :- 1. when the consignment did not reach its destination and was misplaced or lost in
transit , it would amount to deficiency in service.
1. when a transport company failed to lawfully discharge its obligations under the contract of carriage, the
complainant must have been put to very serious prejudice and loss in relation to his business.
2.There was a receipt dated 05.01.1988 showing the payment to the press trust of India which shoed that the
complainant was a hirer of services of the opposite party. Held that even though there was no written agreement
between the parties the opposite party was regularly supplying the news items to the complainant.
1. Where the precise complaint of the complainant was that there was overcharging the passenger fare than the
published and in the process. It was alleged to be grossly unfair to the traveling public.
2. For the delay in handling over possession after two years from the date the initial deposit made by the
potential consumer of housing boat or a builder. Held that in this case the date in relation to the above
statement would be 30.11.94 thought the estimated date of completion was 30.06.84.
3. where the package was entrusted to the opposite party on behalf of the complainant by hr mother and if the
package had not been delivered to the addressee.
4. where the complainant purchased a television set of oskar brand, its guarantee period expired on 17.03.91, the
complaint was lodged on 17.03.90 within the validity of the guarantee period.
5. in claim for damages against an insurance company, it was contended by the insurance company that the
damage was caused in an accident.
6. any person who obtains an insurance policy from an insurance company is a potential user of the service of
the company on payment of premium therefore.
5.Consumer dispute :- Consumer dispute means where a person against whom a complaint has been made denies or
disputes the allegations contained in the complaint.
Example 1.Where the complainant purchased a jeep in an auction which was stated to be diesel, where as it was
petrol engine and its engine number did not tally with the number of engine given in the registration book. It
amounted to sale of defective goods and raised a consumer dispute. 2.A food processor machine purchased by the
complainant was required to be repaired several times during warrant period, it could be said having inherent defects
and a consumer dispute was validly raised.
What I not a consumer dispute :-
1.Where the grievance of the complainant pertains to alleged failure on the part of the state bank of India and u.p.
state financial corporation to grant financial assitance to the complainant for nursing and rehabilitating a sick
industrial unit of his.
2.where the relationship between the company and the bank was that of a pledger and the pledgee and there was
hypothecation of the goods.
3.A dispute regarding pricing of a flat by housing board society or a builder is not a consumer dispute.
4.where the case could not be brought under the category of deficiency in service and the complainant had filed his
complaint for recovery of the amount alleging breach of the contract by the opposite parties which was disputed by
the opposite parties.
6.Trader :- Trader in relation to any goods means a person who sells or distribute any goods for sale and includes the
manufacture thereof, and where such goods are sold or distributed in package form, includes packer thereof.
Who is trader :- it is a person who sells or distributes any goods for sale is a trader and includes the manufacturer
thereof. A person who sells the goods is a trader and it includes manufacturer. A dealer is not responsible for any
manufacturing defect. Where the manufacturer had given the warranty to the purchaser in the usual form which was
for a period of one year. The liability of replacing of the picture tube for which there was not justification, the
manufacturer is liable to replace the color tube of t.v.
Unfair Trade Practice :- Unfair trade practice means a trade practice which, for the purpose of promoting the sale,
use or supply of any goods or for the provisions of any service adopts any unfair method or unfair or deceptive
practice including any on the following
1.The practices of making any statement, whether orally or in writing or by visible representation which
(i) falsely represents that the goods are of particular standards (ii) falsely represents that the services are of a particular
standard (iii) falsely represents any re-built second hand reconditioned or old goods as new goods (iv) represents that
the goods or services have sponsorship , approval, performance, characteristics, accessories, uses or benefits which
such goods or services do not have (v)represents that the seller or the supplier has a sponsorship an approval or
affiliation which such seller or supplier does not have (vi) make a false or misleading representation concerning the
need for , or the usefulness of , any goods or services (vii) gives to the public any warranty or guarantee of the
performance , efficacy or length of life of a product or of any goods that is not based on an adequate or proper test
thereof.
Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper
test the burden of proof of such defence shall lie on the person raising such defence.
a) materially misleads the public concerning the price at which a product or like products or goods or services have
been or are ordinarily sold or provided and for this purpose a representation as to price shall be deemed to refer to the
price at which the product or goods a services have been sold by sellers or provided by suppliers generally in the
relevant market. b) Gives false or misleading facts charging the goods services or trade of another person.
1. Permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or supply at
bargain price, of goods or service that are not intended to be offered for sale or supply at the bargain price or
for a period that is and in qualities that are reasonable, having regard to the nature of the market in which the
business is carried on, the nature and size of business and the nature of the advertisement.
2. Permits :- the offering of gifts prizes or other items with the intention of not providing them as offered or
creating impression that something is being given or offered free of charge when it is fully or partly covered
by the amount charged in the transaction as a whole.
3. permits the sale or supply of goods intended to be used or are of a kind likely to be used by consumers
knowing or having reason to believe that the goods do not comply with the standards prescribed by competent
authority relating to performance composition, contents , design
4. permits the hoarding or destruction of goods or refuses to sell the goods or to make them available for sale or
to provide any service, if such hoarding or destruction or refusal raises.
21.Explain the constitution, procedure of functioning , aims and objects of Central and State consumer
protection councils.
Ans Since the main object of the consumer protection act, 1986 is for the better protection of the interests of the
consumer and for that purpose to make provisions for the establishment of consumer councils and other authorities for
the settlement of the consumers disputes and for the matter connected therewith.
Establishment of the central consumer council :- the central govt may be notification establish with effect from
such date as it may specify in such notification a council to be known as the central consumer protection council. It
consists of 1. the minister in charge of consumer affairs, 2 such number of other official or non official members
representing such interest may be prescribed
Procedure :- 1. The central council shall meet as and when necessary but atleast one meeting of the council shall be
held every year, 2 the central council shall meet at such time and place as the chairman may think fit.
Objects :- 1.right to be protected against marketing of goods and services which are hazardous to life and property.
2.the right to be informed about the quality, quantity, potency, purity standard and price of goods and services as
the case may be 3.the right to be assured wherever possible access to a variety of goods and services 4.the right
to be heard and to be assured that consumer interest will receive due consideration at appropriate forums 5.the
right to seek redressal against unfair trade practice or restrictive trade practices.
State consumer protection councils :- The state govt may be notification establish with effect from such date as it
may specify in such notification a council to be known as the consumer protection council
It consists of 1. the minister in charge of consumer affairs in the state govt who shall be its chairman2 such number of
other official or non-official members representing such interests as may be prescribed by the state govt.
Procedure of function :- the state council shall meet as and when necessary but not less than two meetings to be held
every year.
Objects :- the objects of these councils shall be to promote and protect within state the rights of the consumers.
22.What is the objects of the establishment of consumer disputes redressal agencies. Explain the provisions
relating to the constitution and different jurisdictions of district forum. Is it entitled to decide a dispute
relating to a mater already pending before a civil court.
Ans. Objects of the establishment of consumer disputes redressal agencies :- The object of consumer protection act is
to create a three tier consumer disputes redressal agencies for the purpose of speedy and inexpensive grievance
redressal of a consumer by way of an alternative machinery thus to abstain from the ordinary process of the civil court
where the litigation is likely to cause delay and heavy cost upon a consumer.
Procedure -The act provides for selection and composition of selection committee for appointment of
president, member of the district forum. President and two members must be made by the state
government only on recommendation of the duly constituted selection committee under the act.
The selection committee shall consists of 1.Chairman 2.member- secretary, law department of the state 3.member :-
secretary of the department of consumer affairs in the state
District Forum :- Every member of the Dist. Forum shall hold office for a term of 5 years or up to the age of 65
years, whichever is earlier.
Jurisdiction :- 1. pecuniary jurisdiction 2 territorial jurisdiction
The complaint can also be instituted to the district forum within the local limits of whose jurisdiction the cause of
action wholly or in part arises.
On the basis of the several decisions given in the various cases by national commission it can be said that the district
forum has no jurisdiction to hear cases already pending before civil courts.
23.a Explain the manner of filing complaint before district forum. Who can file a complaint. Whether a
complaint can be filed by an advocate. Explain referring to a judgement.
Ans It provides that who are the persons competent to institute complaint before consumer redressal forums and also
which complaint against who a complaint can be filed. Therefore a complaint relating to any goods sold or delivered
or agreed to be sold or delivered or any service hired or agreed may be filed with a district forum :- 1.a person who is
a consumer 2. any recognized consumer association 3.one or more consumer having common interest 4 the central or
the state government
A registered consumer association can validly lodge complaint against milk diary against price increase and stoppage
of supply of one type of milk.
23b. Describe briefly the procedure adopted by a district forum on receipt of a complaint.
Ans. It relates to the goods of two kinds :- 1.the goods in which defect can be determined without proper analysis
2.the goods in which defect cannot be determined without proper analysis by the appropriate laboratory
Procedure (1)refer a copy of the complaint to the opposite party giving him 30 days time or period not exceeding
15 days as may be granted by the forum (2) where the opposite party on receipt of a complaint referred to him
denies or disputes the allegations contained in the complaint or omits or fails to take any action to represent his
case within the time.(3) where the complaint alleges a defect in the goods ,which cannot be determined without
proper analysis or test of goods, the dist. Forum shall obtain a sample of the goods from the complainant, seal it
and authenticate it in the manner prescribed (4)before any sample of the goods is referred to any appropriate
laboratory , the dist. Forum may require the complainant to deposit to the credit of the forum such fees as may
be specified.(5) the dist. Forum shall remit the amount deposited to its credit to enable it to carry out analysis or
test mentioned on the receipt of the report from the appropriate laboratory.(6)the dist. Forum shall thereafter
give a reasonable opportunity to the complainant as well as the opposite party of being heard as to the
correctness or otherwise of the report made by the appropriate laboratory.
The dist. Forum shall, if the complaint received by relates to goods in respect of which the procedure cannot be
followed, or if the complaint relates to any services --1.refer a copy of such complaint to the opposite party directing
him to give his version of the case within a period of 3 days 2. where the opposite party on receipt of a copy of the
complaint , referred to him denies or dispute the allegations contained in the complaint or omits or fails to take any
action to represent 3 no proceedings complying with the procedure laid down in the law shall be called in question in
any court on the ground that the principles of natural justice have not been complied with
1.For the purposes of this section the dist. Forum shall have the same powers as are vested in a civil court under the
code of civil procedure while trying a suit in respect of the following --
(i) the summoning and enforcing the attendance of any defendant or witness and examining the witness as evidence
(ii) the discovery and production of any document or other material object(iii) the reception of evidence on affidavits
(iv) the requisitioning of the report of the concerned analysis (v) issuing of any commission for the examination of
any witness (vi) any other matter which may be prescribed.
2. Every proceedings before the district forum shall be deemed to be judicial proceedings. 3.where the
complainant is a consumer
24 (a) Explain the provisions relating to appeals against the orders of the district forum. Can the state
commission may entertain an appeal ever after the expiry of the statutory period of 30 days.
Ans. Section 15 provides that any person aggrieved by an order made by the district forum may prefer an appeal
against such order to the state commission within a period of 30 days from the date of the order, in such form and
manner as prescribed.
It also provides that right of appeal before the state commission by any person aggrieved by order made by the dist.
Forum within a period of 30 days from the date of the order passed by the dist, forum in prescribed manner
1.No appeal lies lies against an interlocutory order :- Where an appeal was filed against an order of the district
forum passed on the point of limitation, it was held that no appeal can be filed against an interlocutory order
2.limitation on appeals :- date of communication of order is the date wherefrom limitation starts where one of the
contentions raised by the respondent in opposition to the appeal was that the memorandum of appeal was not filed
within 30 days of passing of the order
24b. What relief can be granted by the district forum in a complaint. Whether the district forum pass
an order granting interest and costs. When compensation is payable.
Ans. What relief can be granted by district forum :- after the proceedings has taken place u/s 13 of the consumer
protection act before the district forum and on the basis of the evidence the district forum is satisfied that the goods
complained suffer from any of the defects mentioned specifically in the complaint or any of the allegations contained
in the complaint about the services are proved.
According to section 14(1) the district forum may provide relief to a consumer by one or more of the following ways -
1. the opposite party may be directed to remove the defects pointed out by the appropriate laboratory 2.replacement of
goods of similar description 3. return of sum paid by the complainant 4.award compensation to the consumer for any
loss due to negligence of the other party 5.removal of the defects or deficiency in the services in question 6.make
order to discontinue the unfair trade practice 7.withdrawal of hazardous goods from being offered for sale 8.impose
prohibition on sale of the goods which is hazardous 9.may award adequate cost to the parties
When compensation is payable :- 1.suspension of water supply 2.telephone delay in shifting 3.telephone bills delay
condonation 4.accident of bus fatal injuries 5.allotment of shares delay compensation against liquidated damages
25. Explain the constitution and jurisdiction of the state commission. Can state commission transfer
the cases from one district forum to another district forum.
Ans. Composition of State Commission :- 1.President 2 Two members :- One member shall be a woman who shall
be persons of integrity, ability and having adequate expertised knowledge and experience and also proved capacity in
dealing with problems.
Selection committee consists of 1. Chairman 2 Members
Appointment of the president of the state commission :- According to S. 16 the president of the state
commission to be appointed after consultation with the chief justice of the high court which is similar to
provision of the const. of India.
Security of Tenure :- The legislature with the object to achieve fairness and inject sense of security of tenure in
members provided that every members of the state commission will remain in office for a definite term of 5 years or
upto the age of 67 yrs whichever is earlier.
Jurisdiction of the state commission :- 1) Pecuniary 2) appellate 3) territorial 4)revisional
26. Where an appeal can be filed against the orders of the state commission. Whether any limitation has been
prescribed for filing appeals. Can the National Commission entertain an appeal after the expiry of 30 days.
Ans Appeals against the order of the state commission :- Any person aggrieved by an order made by the state
commission in the exercise of its powers conferred , an appeal against such order to the national commission within a
period of thirty 30 days from the date of the order in such form and manner as may be prescribed .
Right of appeal to any person who is an aggrieved by an order made by the state commission to prefer an appeal to the
national commission within a period of 30 days from the date of the order.
Limitation :- 30 Days
Can the appeal be entertain after a period of 30 days :- Limitation of period provided that under this section may be
exempted if the national commission is satisfied that there was sufficient cause for not filing an appeal within that
period. Thus, an appeal can be entertained by the national commission against the order made by the state commission
ever after the expiry of period of 30 days from the date of the order passed by the state commission.
27. Explain the provisions relating to composition of national commission and its various jurisdictions.
Ans. It provides the composition of the national commission , however certain changes have been inserted. Under this
section the national commission will be constituted on the recommendations made by duly constituted Selection
Committee namely 1) Chairman 2) President
Now after the amendment act 1993 in respect of appointment of the president which provides that no appointment
shall be made except after consultation with the chief justice of India.
Four members :- Among four members one of the member shall be woman.
Jurisdiction of the National Commission :-
The National Commission has the following three kinds of jurisdiction 1 Pecuniary Jurisdiction 2 Territorial
3 Revisional
Jurisdiction of the national commission in case a matter is sub judice :-
The national commission has no vested jurisdiction to entertain the same subject matter of the complaint appeal which
is already pending before any competent civil court of land. It is settled principle of law.
28. What are the powers and procedure available to the national commission for the disposal of any complaints
or proceedings. Also state the additional powers of the national commission.
Ans. Powers and procedure applicable to the national commission :- According to S. 22 the national commission will
have powers of a civil court as specified in the disposal of any complaints or any proceedings before the commission
as it has been provided.
National Commission has power of a civil court :- On receipt of a complaint the national commission will follow
the same procedure as followed by a civil court, as S. 22 of the act provides for the powers and procedure applicable
to the national Commission. S. 22 provides that the national commission will have same powers as specified under the
Act. They have the powers while trying a suit in respect of the matters regarding :-1)Summoning or enforcing
attendance of any defendant. 2) Compelling production of evidence, any document either material object. 3) to receive
evidence on affidavits 4) power to order for carrying out test 5)power to issue commission on case of examinations of
any witness required.
Procedure to be followed by the National Commission :- The rules framed by the Central Govt. lays down the
procedure to be followed by the national Commission as follows :-
1 A complaint containing the following particulars shall be presented by the complainant in person or by his agent to
the national commission 2 The national commission shall in disposal of any complaint before it, as far as possible,
follow the procedure laid down in the act 3on the date of the hearing or any other date to which hearing could be
adjourned it shall be obligatory on the parties or their agents to appear before the national commission. 4 The national
commission may on such terns as it deems fit and at any stage of the proceedings adjourn the hearing of the complaint
but the complaint shall be decided as far as possible within a period of three months from the date of notice received
by opposite party 5 if after the proceedings conducted under sub-rule the national commission is satisfied with the
allegations contained in the complaint it shall issue orders tot the opposite party or parties as the case may be directing
him or them to take one or more of the things.
Additional powers of the national commission :-
1. The national commission , the state commission and the district forum shall have the power to require any person
(i) to produce before and allow to be examined and kept by an officer o the national commission the state commission
or the district forum as the case may be specified in this behalf such books, accounts, docs or commodities in the
custody or under the control of the person so required as may be specified. (ii)To furnish to an officer so specified,
such information as may be required for the purpose of this act.
2.a where during any proceedings under this act, the national commission the state commission or the district forum as
the case may be has any ground to believe that any book, paper, commodity or document which may be required to be
produced in such proceedings are being or may be destroyed, mutilated, altered or secreted it may by written order
authorize any officer to exercise the power of entry and search of any premises.
3.The national commission , the state commission or the district forum as the case may be on examination of such
seized docs or commodities as the case may be may order the retention thereof or may return it to the party
concerned.
29. Can the appeal be filed against the order of national commission. If yes, when and where.
Ans. When , any person who is aggrieved by an order made by the national commission in the exercise of its powers
conferred by the act may prefer an appeal against such order to the Supreme Court within a period of 30 days from the
date of the said order.
Period of Limitation for filing appeals :- S. 23 provides that any person aggrieved by an order made by the national
commission may prefer an appeal before the supreme court within the period of 30 days from the date of the order.
Power of Supreme Court to Hear Appeals S. 23 provides that the supreme court may entertain an appeal after the
expiry of the said period of 30 days if it is satisfied that there was sufficient cause for not filing it within that period.
30. What provision is made for imposing penalties against a trader or person or complainant who fails or omits
to comply with order made by redressal agencies. Examine the constitutionality of the same.
Ans. S. 27 of the act makes provision for imposing the penalties against a trader or person or complainant who fails or
omits to comply with order made by the redressal agencies. They have the powers to punish with imprisonment for a
term which shall not less than one month but may extend to three years or with fine which shall not be less than two
thousand rupees but which may extend to ten thousand rupees or with both.
The non compliance of the order would attract the provisions contained under this section :-
1.Execution New party has a right to please defence of natural justice :- where an application for anticipatory bail
was filed before the high court against orders u/s 27 passed by a district forum.
2.Constitutionality of section 27 and 25 of the consumer protection act, 1986 :- It was held in a case that penal
provisions in sec. 27 can be applied to the directors of the companies notwithstanding the absence of a specific
provision for action against those in charge of or in control of the affairs of the company.