NOTES LAW OF TORTS

Q. 1- Define the term TORT. Tracing its brief origin, demarcate its nature and scope.

DEFINITION- Tort is a civil wrong, different from contract for the following reasons:
1. Contract gives the right only against the person with whom contracted, but tort may also be a
right against unknown person ( right in rem).
2. There is generally a consideration as essential element of contract, but in many torts the right
arises even without any consideration.
3. In contract the damages are generally liquidated i.e. pre-determined but these are mostly
unliquidated damages ( not pre-fixed) in tort.
The following are important definitions of the term TORT:
DEFINITION IN THE LIMITATION ACT, 1963- “Tort means a civil wrong which is not exclusively a
breach of contract or breach of trust.”
This definition only differentiates tort from contract and breach of trust but does not give other
characteristics of the tort.
SALMOND’S DEFINITION- “ It is a civil wrong for which remedy is a common law action for
unliquidated damages and which is not exclusively the breach of contract or the breach of
equitable obligation.”
Salmond gives definition in the British background, from where law of torts has taken origin. He
gives the following characteristics of a Tort:
1. A civil wrong .
2. Remedy in common law action. It means case to be filed under common law of England and in
common law courts. Common law of England means Unwritten law which is based on Court
decisions or Judge- made law.
3. Damages in torts are uliquidated i.e. not pre-dtermined.
4. It is not only breach of contract or breach of equitable obligation. It means tort os different
from these two types of civil wrongs.
DEFINITION BY FRAZER- “It is an infringement of right in rem of a private individual giving a right
of compensation at the suit of the injured party.”
Frazer’s definition is based on the following characteristics of a Tort:
1. It is violation of right in rem i.e. right against the entire world or all persons, known or unknown.
2. A Tort gives right to file a civil suit for claiming compensation of the damage caused to private
individual.
CHARACTERISTICS OF A TORT-
From the above important definitions of the term TORT, we can identify the following
characteristics:
1. Tort is a civil wrong.
2. It is not a breach of contract.
3. It is also not a breach of trust.
4. It is generally a violation of right in rem.
5. Tort is a redressable breach. It means a violation against which you can the sufferer can go to
the court.
6. Tort gives right to action for claiming compensation.
7. Damages in torts are unliquididated ie not pre-determined or decided between parties.

BRIEF HISTORICAL ORIGIN

Salmond as the most important author of English law derives the origin of Law of Torts in the
common law of courts which is based on the judgments of the English courts. For filing a case of
Torts, Salmond suggests to find an English case on the point that is found in the case to be filed
under the Law of Torts. He names this process as the Pigeon Hole Theory.
PIGEON HOLE THEORY- As per this theory of Salmond, a case becomes a Tort that can be
contested in a court for damages it must be based on already decided case. In the court, it will
have to be mentioned in the plaint that on which English case (Pigeonhole) the case in the plaint
is based.
As per Salmond, Pigeon is a Judge, hole is a case decided by him earlier on which present case is
to be based. The term pigeon has been used for the Judge on the basis of intelligence of the judge
and past memory which means the case decided in the past.
FRAZER OBJECTS- Frazer and many other English authors objected to the pigeon hole theory of
Salmond on the ground that every tort cannot be based on the facts of an earlier case of torts
because the facts of two cases can never be the same.
HOUSTON CLARIFIES- Houston who became the co-author of Salmond’s book on Law of Torts
clarified the point that Salmong never meant that pigeonhole meaning the case with same facts.
He said that Salmond meant by pigeonhole a “Principle of Law” and the facts of the case.
Following the pigeonhole is basing the case being contested on the principle of law already
decided in the court under law of torts.
LAW OF TORTS HAS GROWN FURTHER- In its beginning, law of torts was confined to trespass but
later on it acquired many more areas like right of vote, defamation, negligence, consumer
protection etc. And the law of torts in the present days is not only non-statutory but today it is
covered under the written laws also like defamation, consumer protection and motor vehicles
etc.
NATURE OF TORTS- Nature means the characteristics. Accordingly, contract is a civil wrong, which
is not exclusively the breach of contract, breach of trust or equitable obligation. It arises from a
right in rem and remedy is unliquidated damages.
From the above characteristics, the following nature of torts can be identified:
1. Tort is different from crime or offence- As tort is a civil wrong, therefore, it is different from a
criminal wrong that is called a crime or offence. Although the present torts have some common
areas with criminal wrongs like negligence, trespass, battery, defamation etc. but as clarified by
the Hon’ble Supreme court of India in Jacob Mathew v. State of Punjab, AIR 2005SC3180, the
standard of proof is different in both criminal wrong and a tort.
2. TORT IS ALSO DIFFERENT FROM BREACH OF CONTRACT- Although both are civil wrongs but
principles applicable to both are different. The rights in contract are to arise from the Contract
Act or the agreement entered into between the parties but no such statutory principles and
formal agreement exists between the parties. Although written laws like Consumer Protection
Act and Motor Vehicles Act have entered in the area of torts but there does exist a large area of
torts outside such statutory obligations.
3. TORT IS ALSO DIFFERENT FROM BREACH OF TRUST OR EQUITABLE OBLIGATION- Breach of
Trust is covered under the Trust Act and equity lies outside the domain of law to deliver justice
in a case but Tort is well governed by legal principles.
4. TORT IS NOT BAILMENT- Bailment of a quasi- contract and governed by the provisions of
Contract Act but tort is different from a quasi contract and not covered under the contract law.
5. UNLIQUIDATED DAMAGES IN TORTS- Generally the nature of torts is found from the
unliquidated damages in this law but in some cases the upper limit of liability as in insurance
coverage may have been fixed.
6. SOME CONCEPTS OF CONTRACT AND CRIMINAL LAW FOUND IN TORTS- Some concepts of
contract law like Vicarious Liability and some principles of modern criminal law like STRICT OR
ABSOLUTE LIABILITY are found in law of torts as well. But the spirit of torts remains different from
contract and a criminal wrong.
SCOPE OF TORTS- Scope of a discipline means its subject-matter or the contents. Therefore,
scope of every discipline changes with its growth and development. The same is the case with
law of torts.
1. IT STARTED WITH TRESPASS CASES- The beginning of law of torts was with trespass cases- both
of property and person and it continues to be important area of its scope.
2. PIGEONHOLE THEORY WAS THE FIRST PRINICIPLE- Salmond’s Pigeonhole theory asking for
fitting a case in any decision (pigeonhole) was the beginning of law of torts but it is not so now.
Even though, unwritten law is still a large area of torts but like other laws, torts have its
established principles.
3. UNWRITTEN COMMON LAW- The beginning of law of torts was unwritten common law
principles which are relevant even today but the written laws like Consumer Protection Act,
Motor Vehicles Act have also come within the scope of Torts.
4. CASES OF NEGLIGENCE, NUISANCE, VICARIOUS LIABILITY AND DEFAMATION- Entering into
some areas of contract law and criminal law, law of torts includes within its scope cases of
negligence, vicarious liability, nuisance and defamation. But difference on some points of
evidence and procedural law remains between criminal law and torts or contract law and torts.
But the present scope of law of torts is quite vast and is based on very well established legal
principles.
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Q.2. EXPLAIN the terms Damnum sine Injuria and Injuria sine Damnum marking out the difference
between the two terms?
INTRODUCTION- Damnum sine injuria and Injuria sine damnum are two opposite principles of liability in
law of Torts. To understand and explain them, it is first essential to know the literal meaning of the Latin
words used and know the meaning of these two principles.
LITERAL MEANING OF WORDS AND PRINCIPLES- In both these principles 3 Latin words have been used,
which mean as under:
Damnum means damage or loss caused.
Sine means without, and
Injuria means legal injury ie injury for which the sufferer can go to the court- It is also called actionable
claim.
Therefore, Damnum sine injuria means – Damage without legal injury or actionable claim. It means the
cases where the victim suffers a loss or damage but such damage does not give him a right to seek remedy
from the court because such damage is without a legal right or actionable claim.
It is explained as “Damage not coupled with unauthorized interference with plaintiff’s lawful right.”
DECIDED CASES- The following English and Indian cases will further clear the principle of Damnum sine
Injuria:
English case in Grant v. Australian Knitting Mill, (1936) AC 85, the principle was explained as : “The party
injured will have no claim in law even though the injury is intentional, so long as the other party is
excercising a legal right.” The example of a public servant, say of police to arrest a person on suspicion or
using force to stop an accused running from the situation are the examples of police excercising legal right
and therefore, restraining the person suffering from seeking claim from the court.
Similary the court applied maxim of Damnum sine Injuria in Gloucestor Grammer School case, where the
plaintiff suffered financial loss from another competitive school in his neigbourhhod.
Indian Case of Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Gujrat 13, the plaintiff sought an
Injunction restraining the defendants from showing the film- Jai Santoshi Maa. The reason was that it hurt
the religious feelings of the plaintiff and many others by exhibiting goddess Laxmi and goddess Saraswati
jealous of each other. The High Court refused the relief applying principle of ‘Damnum sine injuria’.
INJURIA Sine Damnum-
Injuria sine Damnum is just the opposite of Damnum sine Injuria as an exception to the essential
requirements of law of torts, demanding:
1. Legal injury i.e. an actionable claim or a legal right.
2. Suffering a damage or a loss by the plaintiff.
LITERAL MEANING- Literally, Injuria sine Damnum means injury without a damage. It means, there are
Torts where the plaintiff has not suffered any loss or damage, but even then he has an actionable claim
for the reason that his legal right has been violated. Accordingly, in such torts the plaintiff is held entitled
to claim damages or compensation.
EXPLANATION- There are 2 kinds of Torts-
1. Torts requiring proof of damage by plaintiff or normal Torts.
2. Torts actionable per se i.e. Torts where no proof of damage is required. Whether damage is there or
not, it is a tort and plaintiff is entitled for compensation.
Torts actionable per se are those in which maxim Injuria sine damnum applies. The best example is Tort
of Trespass, where even if no damage is caused, it is tort actionable per se.
In the words of Chief Justice Halt: “ If plaintiff has a right, he must of necessity have a means to vindicate
and maintain it, -------- it is a vain thing too imagine a right without a remedy, for want of a right and want
of remedy are reciprocal.”
ILLUSTRATION BY CASE LAWS- The following English and Indian cases illustrate the principle or maxim
Injuria sine damnum-
Ashby v. White (1703) is the case where CJ Halt made the above observations about the maxim. It was a
case where the plaintiff was a qualified voter but the Returning officer refused to allow him cast a vote in
the Parliamentry election. The Court applied the maxim of Injuria Sine Damnum and awarded
compensation.
Bhim Singh v. State of J&K, AIR 1986 SC499 is a leading case of liability of a tort even by the State. In this
case the petitioner was an MLA who was arrested when he was going to attend the Assembly session.
Violating is constitutional immunity, the police arrested him and did not produce him before the
Magistrate within the required time. Naming it violation of personal liberty under Article 21, the Supreme
Court granted compensation of Rs. 50,000/-
DIFFERENCE OF TWO MAXIMS-
Whereas both Damnum Sine Injuria and Injuria Sine Damnum are exceptions to the general rule of liability
in a Tort viz; there must be damage caused and such damage must give legal right to the plaintiff for
seeking remedy from the Court, but both the concepts or maxims are different as under-
1. Both maxims are opposite of each other. In one there is no damage caused but compensation is given
but in the other damage is suffered but no compensation is granted.
2. In Damnum Sine Injuria, the essential requirement of violation of a legal right is missing, but in Injuria
Sine Damnum, the requirement of suffering a damage or loss is missing.
3. In Injuria Sine Damnum the plaintiff gets compensation but in Damnum sine Injuria the plaintiff is held
not entitled to compensation.
4. Whereas Injuria Sine Damnum is used by the plaintiff for his claim, the Damnum sine Injuria is applied
as a Defence by the defendant.
THE NET RESULT from both the said maxims comes that LEGAL RIGHT being violated is more essential a
requirement for claiming compensation under Law of Torts than the requirement of Suffering a Damage.
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Q. 3. WHAT ARE THE MAIN PRINCIPLES OF LIABILITY IN TORTS? EXPLAIN WITH EXAMPLES. IS STATE
LIABLE UNDER LAW OF TORTS? DISCUSS.

WHAT IS LIABILITY? Liability in coomon sense means responsibility or duty prescribed under the law. In
the context of Law of Torts, liability means the legal obligation of the person who commits a tort, who is
called a Tort-feasor.
KINDS OF LIABILITY IN TORTS- Under criminal law, the main liability of an offender is to undergo
punishment like Imprisonment prescribed by the law and pronounced by the Court, which is technically
called sentence. Under the Contract Liability is Specific Performance or performance of the contract
agreed upon, and when it is not possible, it is payment of Compensation with or without Penalty. Under
yhe Law of Torts, TWO KINDS of Liability are prescribed: 1. Injunction i.e. restraining or prohibiting the
person from continuing with the commission of tort. And 2. Payment of Damages or making good the loss
caused to the sufferer of tort
ESSENTIAL REQUIREMENTS FOR A TORT- The essentials required to constitute a tort are in fact based on
the main principles of Liability under Law of Torts. These are:
1. LEGAL INJURY- It is the injury to the person- physical, mental, social or any other kind of deprivation of
a legal right of a person.
2. INTENTIONAL INJURY- The general requirement is that the legal injury results from an intentional act of
the tortfeasor. Negligence and Malice are also taken as part of intention.
3. STRICT LIABILITY AND ABSOLUTE LIABILITY AS EXCEPTIONS- Taking into account the high degree of loss
caused, the Law of Torts has recognized principles of Strict Liability laid down in Ryland v. Fletcher and
later Absolute Liability by Indian Supreme Court in MC Mehta’s case and Bhopal Gas Tragedy case as
exceptions to the rule of proving Negligence or wrong intention of the person committing a Tort.
4.LIABILITY OF THE WRONGDOER HIMSELF- The liability to pay damages to the victim of a tort is personal
of the person who caused the damage.
5. EXCEPTION OF VICARIOUS LIABILITY- The principle of Vicarious liability laid down in Rylands v. Fletcher
is exception to the rule of personal liability. It is popularly called the liability of the master for tort
committed by servant. This principle has been extended under the concept of Insurance available in torts,
where the Insurance Company becomes liable for the damage caused by the insurer.
PRINCIPLES OF LIABILITY- Salmond as the celebrated author on Law of Torts discusses the General
Principles of Liability in Torts along the requirements of a Tort, their difference from liability in crime and
contract etc. From Salmond’s discussion, the following general principles of liability in Torts flow out:
1. COMPENSATION FOR LEGAL INJURY- legal injury is one that is recognized under the Law of Torts. It
includes injuries recognized under the maxim: Injuria sine damnum. Unless that is a legal injury, there is
no tort committed and therefore entitlement for damages.
2. DAMAGES AS COMPENSATION FOR DAMAGE- Under the Law of Torts, compensation is given to meet
the damage cost. However, the principle of Damnum sine Injuria provides that if the damage is caused
out of an injury not recognized under law of torts, then such damage is not compensated because it is not
flowing out of a tort.
3. SOVEREIGN ACTS NOT TORTS IF JUSTIFIED- If there is an act of a public servant and he excercises his
authority in a legal way, then the damage caused or even deprivation of a right does not constitute a Tort.
The justified and legal actions of police or other authorities discharging sovereign functions within the
limit of law are not torts.
4. RIGHT TO DAMAGES FLOWS OUT OF DUTY CAST ON TORTFEASOR- It is the failure to discharge the duty
cast by law and resulting in the damage to the plaintiff that constitutes the tort and makes defendant
liable.
5. STANDARAD OF CARE IS VARIES WITH EXPERTISE AND CONSIDERATION- As regards the duty of care
expected of a person held responsible to pay damages, it is not the same in all cases. Its standard varies
from situation to situation and from person to person. The expertise required, expected and the amount
of consideration paid are relevant factors for determining the Negligence of the Tortfeasor.
6. PROOF OF INTENTION OR NEGLIGENCE, MALICE IS NORMALLY REQUIRED- It is only the intentional act
that constitutes a tort. It includes proof of negligence also. But the special torts covered under the
principle of Strict Liability and Absolute Liability are also covered as exceptions to the rule of proving
negligence or wrongful intention of the wrongdoer.
7. STANDARD OF PROOF IS DIFFERENT FROM CRIMINAL LAW- When the requirement of proving the
wrongful intention or negligence is to be met, the standard of such proof is lower than is proving the
negligence in a criminal case. It has been made clear by the Supreme Court in the case of Jacob Mathew
v. State of Punjab, where the hospital was not held liable under section 304-A of IPC but option was given
for seeking remedy under Law of Torts.
8. LIABILITY IS OF PAYING DAMAGES BY WRONGDOER HIMSELF- Normal liability is of paying damages by
the wrong doer himself but the principle of Vicarious Liability has been recognized under Law of Torts in
which master is liable for tort committed by servant. Concept of INSURANCE in torts has also shifted the
liability of wrongdoer to the insurance company. The Employees Compensation Act also recognizes it. Fire
Insurance is also an example. Motor Vehicle Insurance is another example of shifting liability of the
wrongdoer on the Insurance Company.
LIABILITY OF THE STATE AS TORTFEASOR-
Earlier State was not liable under the Law of Torts because it was discharging sovereign functions. But
with the changing circumstances and increased emphasis on rights of private persons as well as large
increase in functions of the State extending even to non-sovereign functions discharged by the Welfare
State. Now the State is liable as under:
1. LIABILITY IN NON-SOVEREIGN FUNCTIONS- When State or any of its agencies is discharging non-
sovereign functions like building of roads, bridges , houses or any other kind of work which is done by
private persons or companies, the liability of the State is equal to that of such private persons or
companies.
2. LIABILITY IN SOVEREIGN FUNCTIONS- The State is now liable for committing Torts while discharging
sovereign functions BUT ONLY IF-
(a) The State exceeds its power of protection while discharging the function assigned to it.
(b) The Public Servant is acting under malice or for personal gain or under ulterior motive.
(c) The tort violates the fundamental right or immunity of the person and State officer acts carelessly- The
famous case of Bhim Singh v. State of J&K held the police liable to pay compensation to the petioner MLA
who was arrested whie going attend Assebly Session when such prohibition is given under the
Constitution.
Q.4. WHAT IS VICARIOUS LIABILITY AND HOW STRICT LIABILITY AND ABSOLUTE LIABILITY ARE
DIFFERENT FROM VICARIOUS LIABILITY? DISCUSS.
VICARIOUS LIABILITY- Vicarious liability means liability of a person other than the one who committed
toe tort. Hence, it is an exception to the general principle of Law of Torts that the person committing the
tort shall himself be liable to pay compensation to the victim of such wrong-doing that constitutes a
Tort.
MASTER-SERVANT LIABILTY- Vicarious liability is also named as Master- Servant liability i.e. the master is
held liable for the tort committed by his servant. But it is more than this. In addition to liability of the
master for the torts of his servant, vicarious liability is applied in case of partners and also agents. In this
sense, vicarious liability means the liability of a person for the torts committed by another person or
liability for torts of a third person.
3 EXAMPLES OF VIACRIOUS LIABILITY-
1. Liability of the Principal for torts committed by his Agent.
2. Liability of partners for tort committed by any partner.
3. Liability of the Master for the tort committed by his servant.
PRINCIPAL AGENT LIABILITY- Principal is the main person in business or other position. Agent is his
representative, who deals with the outside people on behalf of the Principal. Since people are dealing
with the representative or agent on behalf of the Principal, therefore for wrongs committed by the
agent during his dealings, will give a right to persons so wronged to claim compensation from the
Principal. This Is the basis of liability of the Principal for torts committed by his agent.
Capacity of agent and wrong done essential- But for applying this principal of Vicarious liability, two
things must exist_ 1. The person committing wrong was agent, and 2. While doing the wrong, he was
acting as agent.
Supreme Court in State Bank of India v. Shyma Devi, AIR 1978 SC 1263, where the lady gave cheque to
the clerk of the bank as a neighbor to deposit in her account but he played a fraud, The Apex Court held
the clerk was not acting as agent of the bank, and therefore, bank is not vicariously liable.
PARTNERS OF A FIRM- The concept of liability of partners of a firm is not strictly vicarious liability but
some authors include it within it. As per the provisions of the Partnership Act, the liability of the firm is
both joint and several. Under this principle, in case of a tort committed by the firm, a partner may be
held liable for the wrong committed by another partner.
MASTER-SERVANT LIABILITY- This is the most important category of vicarious liability. Under it, the
Master i.e person employing the servant is held liable for any tort committed by his servant. Like, the
Principal-Agent, in the case of master-servant also, the outsiders deal with the servant on behalf of the
master and take the act wronged as the one authorized by the master himself.
2 Essentials of Master-Servant Liability- Following 2 requirements must be met for holding the master
liable fo the tort committed by his servant:
1. Tort has been committed by the servant; and
2. Tort was committed during the course of employment.
For the first, relationship of master and servant must be established, and for the second, the act must
have connection with the employment. The servant here needs to be differentiated from an
independent contractor.
Contractor- Servant Difference- The contractor also acts on behalf of the Master but in such cases of
tort, master is not held liable but contractor himself is liable to pay damages. This is because of his
different position from that of the servant. It can be pointed out as under:
1. In case of work by the contractor, it is not done under the directions and dorect control of the
Master/Employer.
2. The act constituting the tort is not during the employment because there is no master-servant
relationship, and therefore, it cannot be during the course of employment.
CASES WHERE MASTER LIABLE FOR TORTS COMMITTED BY INDEPENDENT CONTRACTOR-
As a n EXCEPTION to the rule that master is not liable for torts committed by the independent character,
the following can be referred:
1. Employer AUTHORISING OR SUBSEQUENTLY RATIFYING ILLEGAL ACT-.
2. IN CASES OF STRCT LIABILITY AS LAID DOWN IN RYLANDS v. FLETCHER.
3. IF DANGER OF THE ACT IS CAUSED ON OR NEAR THE HIGHWAY.
4. IF WRONG CAUSED TO THE PLAINTIFF IS NUISANC IN FORM OF WITHDRAWAL OF SUPPORT FROM
NEIGHBOUR’S LAND
5. WHEN TORT RESULTS IN THE BREACH OF A MASTER’S COMMON LAW DUTIES. Such FOUR duties as
interpreted in the case of Smith v. Charles Baker & Sons (1891) . It was observed:
(a) Duty of employer to take reasonable care to provide proper appliances.

(b) To maintain them in a proper condition.

© Not subject those employed to unnecessary risk.
VICARIOUS LIABILITY OF STATE
To understand the vicarious liability of the State, the answer actually lies in answer to the question:
Whether State is Liable in Torts? Why this question arises?
1. State has to discharge some sovereign functions like defence and maintaining law and order. If every
now and then, the question of liability will arise, the functionaries of The State shall be hesitant and
defensive in discharging their essential functions.
2. State liability in Torts has remained unclear in the case laws. Since the question has not been clearly
explained, the question becomes important foe an answer.
The available information on these two questions comes as under:
1. SOVEEIGN FUNCTIONS AND LIABILITY- In addition to sovereign functions, the modern welfare State
also performs a lot of non-sovereign functions like housing and building of roads, bridges etc. Therefore,
the case law on the point answers as under_
NO LIABILITY IN SOVEREIGN FUNCTIONS PERFORMED WITHIN PRESCRIBED LIMITS AND HONESTLY- If the
employee of the State discharges his duties within the prescribed limits of his powers and duties, and he
does it honestly and in good faith, there is no liability of the State. But if the act constituting tort is
unlawful, then the State is vicariously liable. The important cases on the point are:
Rudal Shah v. State of Bihar, AIR 1983SC1086, where the petioiner was kept in jail even after he was
acquitted, the violation was serious and of right to life and personal liberty. Hence, State was made
vicariously liable.
Bhim Singh v. State of J&K, AIR 1986SC494, where MLA was arrested while going to attend the Assembly
session in violation of his immunity provided under the Constitution. The State was held liable for the
tort, again violation of Article 21.
STATE LIABILITY FOR TORTS DURING NON_SOVEREIGN FUNCTIONS- Artice 300 of the Constitution deals
with such liability in acts of trade and commerce. The language of such liability is quite confusing, going
back to the liability as it was before independence i.e. under the Govt. of India Act, 1935 and again goig
back to the liability of East of India Company. The case law has been conflicting making the answer
murky. Normally, it is said State is liable like a private individual. However, to make State liability in Torts
more clear, the FIRST LAW COMMISSION recommended for a legislation like the one in UK and USA. In
the case of N. Nagendra v. State of AP, AIR 1994SC2663, the Apex Court referred to such requirement of
legislation mentioning the recommendation of Law Commission and developments in UK and USA. The
court also observed that today the difference of State liability is not relevant, and it is liable unless
protected by the legal principles applicable in Torts.
STRICT LIABILITY OR RYLANDS v. FLETCHER LIABILITY
 Since the principle of strict liability was laid down in the landmark judgment of the House of Lords in
Rylands v. Fletcher (1868), such liability is also called Rylands v. Fletcher liability.
STRICT LIABILITY IS EXCEPTION TO PRINCIPLE OF PROVING INTENTIONAL ACT OR CARELESSNESS FOR
TORT LIABILITY- Normally, an act constitutes a Tort if it was done with wrong intention of the wrong
doer. But if the damage is caused is of a grave nature, this principle is not applied under the rule of Strict
Liability Hence, Strict Liability is an exception to the normal rule of proving an act constituting a tort.
STRICT LIABILITY IS EXCEPTION TO THE EXCEPTION OF VICARIOUS LIABILITY- Under the principle of
vicarious liability, master is liable for the tort committed by his servant. The exception to this master-
servant liability is that an independent contractor is not such a servant for whose tort, the master is liable
i.e. independent contractor is himself liable for his tort. House of Lords in the famous case of Rylands v.
Fletcher laid down that in certain kind of torts, the principle of Strict Liability shall be applicable and in
such category of cases where the tort is committed by the independent contractor but even then, the
MASTER SHALL BE LIABLE FOR THE TORT COMMITTED BY THE CONTRACTOR ENGAGED BY HIM.
STRICT LIABILITY PRINCIPLE IN RYLANDS v. FLETCHER-
An important observation by Justice Blackburn is the basis of strict liability:
“ We think the rule of law is that the person who for his own purposes brings on his lands and keeps there
anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima
facie answerable for all the damage which is the natural onsequence of its escape.”
REQURIREMENTS FOR APPLYING STRICT LIABILITY:
1. Some dangerous thing must have been brought by a person on his land. Examples of dangerous thing
are: large body of water, gas, electricity, vibrations, sewage explosives etc.
2. The thing thus brought or kept by a person on his land must escape.
3. It must be non-natural use of land.
STRICT LIABILITY IS NOT FREE FROM EXCEPTIONS-
While laying down the rule of strict liability, the House of Lords in Rylands case also provided 5 exceptions
from the application of liability of the master.

5 EXCEPTIONS/DEFENCES IN LIABILITY OF STRICT LIABILITY- In Rylands v. Fletcher, the following 5

exceptions (as defences from escaping from liability of the owner) was also laid down. It means if any of
the following defences are available to an owner of the land, he will not be liable to pay damages. These
FIVE DEFENCES are as under:
1.Plaintiff’s Own Default- If the person claiming compensation had himself committed the wrong or has
led to the damage. Example of entering into another’s land where accident occurred.
2. Act of God- If the escape could not be foreseen and it is because of supernatural forces without any
human intervention. Like earthquake, heavy rains causing floods, tsunami etc. BLACKBURN J. himself
defined it as: “ Circumstances which no human foresight can provide against and of which human
prudence is not bound to recognize the possibility.” In the case where the authorities were expected to
lower the water level of the dam before rainy season but failed to do so resulting in overrelease of water
causing damage to the plantation of the defendant, the defence of Act of God was not accepted by the
Court.
3. Consent of the Plaintiff- This is covered under the principle volenti non fit injuria which means injury
voluntarily suffered is not a legal injury that can be compensated. The examples are consenting for a
common water reservoir etc.
4. Act of Third Party- If the damage was caused by the act of a third person on whom the defendant does
not have any control nor could he foresee such an act. Supreme Court applied this defence in MP
Electricity Board v. Shail Kumar, AIR 2002SC551.
4. Act of Statutory Authority- If a legal duty is caused on an authority and while performing that act and
without negligence, the damage caused is covered under this defence.
ABSOLUTE LIABILITY
The Rule of Absolute Liability is an extension of Strict Liability that has been developed by the Supreme
Court of India in MC Mehta v. Union of India, AIR 1987SC1086 and also applied in Bhopal Gas Leak Disaster
known as Union Carbide v. Union of India, AIR1990SC 273.
WHAT IS ABSOLUTE LIABILITY? This is strict liability without recognizing the exceptions of Rylands v.
Fletcher while applying the rule of strict liability. It is rule of strict liability without exceptions.The reason
given is the Heavy Loss and the Rule Of Rylands v. Fletcher being about 150 years old having little relevance
today.
The Rule of Absolute Liability emerged in the judgment of MC Mehta v. Union of India, AIR 1987SC1086.
CJ PN Bhagwati made very important observations in this regard. The brief reference can be made as
under:
1. Ryland v. Fletcher Cannot Afford Guidance- The rule evolved in Rylands v. Fletcher in the 19 th century
at a time when developments of science and technology had not taken place cannot afford any guidance
in evolving any standard of liability consistent with the constitutional norms and the needs of the present
day economy and social structure.
2. Hazardous or dangerous Enterprise Has Non-Delegable Duty of Safety- CJ Bhagwati held: “We are of
the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses
a potential threat to the health and safety of the persons working in the factory and residing in the
surrounding areas OWES AN ABSOLUTE AND NON-DELEGABLE DUTY to the community to ensure that no
harm results to anyone on account of hazardous or inherently dangerous activity which it has
undertaken.”.
3. LIABILITY IS STRICT AND ABSOLUTE WITHOUT ANY EXCEPTIONS- The Apex Court concluded: “ We would
therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and
harm results to anyone on account of an accident in the operation of such hazardous or inherently
dangerous activity resulting for example the escape of toxic gas, the enterprise is strictly and absolutely
liable to compensate all those who are affected by the accident and such liability is not subject to any of
the exceptions which operate vis-à-vis the tortuous principle of strict liability under the rule in Rylands v.
Fletcher.”
PRINCIPLE REITERATED IN BHOPAL GAS TRAGEDY CASE- Bhopal Gas tragedy happened before MC
Mehta’s facts but decision came late. The case known as Union Carbide Corporation v. Union of India, AIR
1990 SC273 further strengthened the rule of Absolute Liability. This case also led to the enactment of The
Public Liability Insurance Act, 1991 for giving immediate relief to the victims.
DIFFERNTIATING VICARIOUS, STRICT AND ABSOLUTE LIABILITY
1. Vicarious liability is exception to the general principle of tort liability that wrong doer himself is liable
for paying compensation. Under this exceptional rule, master is liable for the tort committed by his
servant, and Principal is liabe for the wrong of his agent.
2. Strict and Absolute Liability are exception to the rule that if the danger is serious and damage caused is
severe, the general principle under Vicarious Liability that for the wrong caused by Independent
Contractor, the master is not liable shall not apply. As such, Strict liability is an exception to the rule of
Vicarious Liability.
3. Strict Liability is also an exception to the general principle of tort liability that the wrong act to be named
a tort must be intentional or negligent act. Under Strict liability no intention or negligence is required to
be proved.
4. Whereas Vicarious and Strict Liability principle has emerged from the English case of Rylands v. Fletcher,
Absolute Liability is an Indian Rule laid down in MC Mehta v. Union of India.
5. Absolute liability is Strict Liability without accepting 5 defences prescribed in Rylands v. Fletcher. It
means Absolute Liability is New Strict Liability principle knowing no defences of Rylands v. Fletcher. It is
strict liability absolutely applicable.
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Q. 5. DISCUSS IN BRIEF THE GENERAL DEFENCES IN TORT LIABILITY.

INTRODUCTION- When a tort is committed, it gives right to the victim to file a plaint for claiming damages.
In this capacity, the victim of the tort is called the Plaintiff and the wrong doer i.e person against whom
the case is filed is called the Defendant. To claim compensation, the plaintiff is required to prove the
essentials required for claiming damages. Likewise, the Defendant has also a right to plead that he is not
liable to pay the damages. The grounds available to the defendant, which if proved make the defendant
not liable to pay compensation to the plaintiff, are called the DEFENCES.
GENERAL DEFENCES IN TORT LIABILITY
There are EIGHT general defences recognized in the Law of Torts. Any one of them, if proved by the
defendant, escapes the defendant from liability to pay damages to the plaintiff. These are:
1. CONSENT OF PLAINTIFF or volenti non fit injuria.
2. PLAINTIFF HIMSELF IS WRONGDOER.
3. DAMAGE IS RESULT OF INEVITABE OR UNAVOIDABLE ACCIDENT
4. ACT CAUSING DAMAGE IS THE ACT OF GOD BEYOND CONTROL OF DEFENDANT
5. DAMAGE WAS CAUSED WHILE EXCERCISING RIGHT OF PRIVATE DEFENCE BY THE DEFENDANT
6. ACT WAS THE RESULT OF A GENUINE MISTAKE
7. THE ACT RESULTED FROM A GRAVE NECESSITY
8. IT WAS ACT OF STATUTORY AUTHORITY WORKING UNDER THE LAW.
A brief discussion with illustrations of these general defences is as under:
VOLENTI NON FIT INJURIA OR CONSENT OF THE PLAINTIFF- It means that if a person has volunteered to
suffer an injury, he cannon hold the other person liable for compensation of such injury. This is also called
the DEFENCE OF CONSENT and it applies subject to certain limitations under the criminal liability as well.
However the following clarifications are attached with the defence of consent:
1. The consent given by the victim may be express or even implied.
2. Mere knowledge of a possible injury is not sufficient to constitute such consent. It must be specific and
if needed after giving a warning of such injury.
3. The consent must be free and not as a result of any duress or fraud. The essentials of a free consent
under the Indian Contract Act apply in the case of Torts as well.
4. Consent must of an adult person, who is competent to give consent as per the age requirement and
soundness of mind. Again the provisions of the Contract Law are applicable.
EXAMPLES- Giving consent for a surgical operation, implied consent of spectators and players of games
are good examples of such consent available as defence. Important Indian cases on the point are: Laksmi
Rajan v. Malar Hospital Ltd. (Tamil Nadu, 1998) holding general consent for surgery is not sufficient for
removal of Uterus; and Padmavati v. Dugganaika (1975) where persons getting lift in a vehicle were held
to have consented for injury in the accident.
PLAINTIFF THE WRONGDOER- In a case of Torts where the plaintiff claiming compensation has himself
committed the wrong, the defendant cannot be held liable for compensation. The general principle of law
is: NO ONE CAN TAKE THE BENEFIT OF ONES OWN WRONG. The defence of this category is not simple and
straight but subject to following clarifications:
1. The defence of plaintiff himself the wrongdoer is available if the injury caused was the result of wrong
committed by the plaintiff.
, like a car driver running overspeed and without lights doesnot see the truck rightly parked and hits it
with a result suffering injuries and damage of the car. He cannot claim damages from the truckowner.
2. But if the wrong committed by the plaintiff is independent of the injury caused by defendant, then the
defendant cannot avail the benefit of plaintiff’s wrongdoing. A case of negligence on the part of both
plaintiff and defendant resulting in injury shall be covered under Contributory Negligence, not as a
complete defence.
3. POLLOCK clarifies the defence of plaintiff the wrongdoer as: “When the plaintiff himself is a wrongdoer,
he is not disabled from recovering in tort unless some unlawful act or conduct on his own part is connected
with the harm suffered by him as part of the same transaction.” In National Coal Board v. England
(1954)AC403 it was held that theft was unoneeced with the burglary,therefore, liability under tort
continues.
INEVITABLE ACCIDENT- If an accident the happening of which could not be avoided without taking the risk
of legal injury for which compensation is claimed, the accident caused by the defendant does not attract
compensation. The test for declaring an accident is: OF A REASONABLE MAN and AFTER TAKING
REASONABLE CARE. Pollock clarifies: “It doesnot mean absolutely inevitable, but it means not avoidable
by any such precautions as a reasonable man could be expected to take.” Indian case of SHRIDHAR Tiwari
v. UP Stae Road Transport Corporation,1987 ACJ636, is a classic case on the point. In this case the defence
of inevitable was accepted by the Court where while saving a cyclist the rear portion of the bus hit the
front portion of the second bus because of slippery road on the rainy day. There are also reported cases
of accidents outside children schools where such defence was accepted as inevitable.
ACT OF GOD- It is called the Act of Nature or even Natural Calamity. Like act of God, a person does not
have control over such an act, it is sudden and unforeseen. If the plaintiff could foresee such an act and
he did not avoid it, then he is liable for negligence, as was held in the case ofVohra Sadikbhai Rajakbhai v.
State of Gujarat (2016) the Supreme Court held the management of Mauzam Dam liable for negligence in
releasing water before the rainy season. The defence of Act of God/Natural Calamity was not accepted.
HALSBURY’S LAWS OF ENGLAND Explain the Defence as:
“ An extraordinary occurrence of circumstance which could not have been foreseen and which could not
have been guarded against, or more accurately, as an accident due to a natural cause, directly and
exclusively, without human intervention, and which could not have been avoided by any amount of
foresight and pains and care reasonably to be expected of the person sought to be made liable for it. “
TWO INPORTANT ESSENTIALS OF THIS DEFENCE-
1. There must be working of natural forces.
2. The occurrence must be extraordinary and not one which could be anticipated and reasonably guarded
against.

PRIVATE DEFENCE:
Private Defence is a complete defence in Torts as well as under the criminal law. It means an injury inflicted
by the defendant to save himself. Had he not done so, the plaintiff would have injured him. Right of self
defence is available both in cases of protection of one’s person i.e. body and also protection of property.
In the law of Torts, the general cases where the right of self defence protects the defendant are Trespass
in case of property, and Battery including Assault so far as protection of one’s person is concerned. Right
to Self Defence or private Defence, as it is also called, os also recognized under the Criminal Law. So far as
extent and time of such right is concerned, the common principles in offences and torts are recognized as
under:
1. Right to self defence is proportionate to the threat of attack on the person or property. It is not more
than that. However, the proportion is not to be weighed in golden scales but generally in the given
circumstances.Cockcroft v. Smith is a decided leading English case on this point.
2. The right to self defence begins as soon as the potential danger becomes visible, and it comes to an end
when such threat comes to an end. Cook v. Beel is the English case on this point.
3. The threat must be possible threat, not impossible of occurrence to be used as a possible threat. When
in a moving train the defendant excercised his right over the person abusing and showing signs of threat
standing on the platform, the Court did not accept possibility of threat and exercise of self defence.
4. The threat must be present and instant. The future threat provides occasion to save oneself and report
the matter to police or other authorities.

MISTAKE AS A DEFENCE IN TORTS:

As a general principle, mistake of fact or mistake of law is no defence under the Law of Torts. But there
are certain exceptions to the rule, where the defendant can exercise this right of defence. But he must
show that he acted under an honest but a mistaken belief. Such exceptional cases, where mistake of fact
is a defence from liability of the defendant are:
1. In case of malicious prosecution of an innocent man, if defendant proves that it resulted from mistake
of fact, it has been accepted a valid defence in Gaya Prasad v. Bhagat Singh.
2. Honest belief in truth of a statement is a defence in case of defamation, held in Derry v. Peek.
3. Mistaken belief of a servant was accepted a valid defence in vicarious liability of his master in the case
of GW Railway Company.

NECESSITY AS DEFENCE:
Necessity is an unavoidable situation where committing a tort becomes essential. It is normally to avoid
a bigger harm. In a way, Necessity as a defence goes close to Inevitable Accident and also has some
resemblance with Self Defence. But it is different from both of them.
Necessity Different from Inevitable Accident-In the case of necessity, the harm caused is intentional; but
in an Inevitable Accident, it happens despite best effort to avoid it.
Necessity Distinguished from Self Defence- In Necessity the victim of the wrong act is innocent, but in Self
or Private Defence, the victim is himself a wrongdoer.
ILLUSTRATIVE CASES-
1. Throwing goods on a ship to lighten it and to save the ship and persons on board from drowning, held
in Mouse’s case.
2. Pulling down a house to save spread of fire.
3. Hypothecating or even selling a ship by the Master of ship that is fast vanishing, held in hastie’s case.
4. operation of a seriously injured and unconscious patient by the competent surgeon without getting
consent.

ACT OF STATUTORY AUTHORITY AS DEFENCE:

If the act is assigned under the Act of the legislature and as per the requirements of law, such act causing
any damage is not actionable as a Tort. But it would have been constituted the tort if it was done by the
private person not so authorized. It is just close to sovereign functions. The immunity from liability to such
statutory authority is both for direct as well as incidental acts. The examples are Railyay tracks causing
damage and vibrations to the adjoining land; the acts of Electricity Board, Telephone department, Police
personnel and Armed Forces etc.
TWO KINDS OF AUTHORISATION-
1. Absolute Authority- which has been given an authority to do acts without mention of any conditions.
2. Conditional Authority- which can be excercised only if the given conditions and circumstances exist.
This is a limited authority. Example of- Police firing by police.
CONDITIONS of this Defence-
1. The authority has been empowered under the Law made by competent authority.
2. This law is reasonable, just and fair as laid down in Maneka Gandhi’s case (1978).
3. The act of the authority is done honestly and in good faith. Any arbitrary use of power makes the
authority liable.
4. The authority has used due diligence while doing the act. An act of negligence is actionable, as held in
Taff Valde Rail Co.

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Q.6. DEFINE THE TERMS NEGLIGENCE, CONTRIBUTORY NEGLIGENCE AND COMPOSITE NEGLIGENCE
RESULTING IN COMMISSION OF TORTS AND LIABILITY FOR DAMAGES.

INTRODUCTION- Tort is a civil wrong, done intentionally that is actionable and resulting in payment of
compensation to the person who has been wronged. In this sense, the act constituting tort must be done
with the intention of causing damage, as a general principle, however, subject to certain exceptions falling
under the principles of Strict Liability and Absolute Liability. Negligence on the part of the wrongdoer i.e
the tort feaser conveys his intention, which can be named as the implied intention for the wrong. Thereby,
Negligence is fulfillment of one essential condition to make an act an actionable wrong, called the Tort.
WHAT IS NEGLIGENCE?
Negligence is the lack of care while doing an act that is expected of the person doing it under the law of
the land. Negligently doing an act results in commission of a Tort as well as the commission of a criminal
wrong. The intensity of negligence constituting an offence is much more than it is in the case of a tort. But
what is Negligence? It has not been precisely defined and differs with authors who give definition to this
term. An authenticated definition of the term NEGLIGENCE can be found in the Judgment of the Supreme
Court in the case of Jacob Mathew v. State of Punjab, AIR 2005SC3180, in the following words:
SC DEFINITION: “ Negligence is the breach of a duty caused by the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs
would do or doing something which a prudent and reasonable man would not do. Actionable negligence
consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes
the duty or observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person
or property.”
THREE CONSTITUENTS_ The following 3 elements of Negligence emerge from the above definition:
1. The defendant owed a legal duty of care towards the plaintiff.
2. There is a breach of that duty by the defendant.
3. The consequence of such breach is commission of a Tort for which defendant is required to pay damages
for the loss caused to the plaintiff.
THREE MEANINGS OF NEGLIGENCE BY CHARLESWORTH & PERCY: The celebrated authorsgive 3 general
meanings to the term Negligence which are applicable in different circumstances:
1. A state of mind in which it opposed to intention.
2. Careless conduct.
3. The breach of duty to take care that is imposed by common or statute law.
It is the third meaning that has general application in the law of torts.
CRIMINAL NEGLIGENCE IS MORE INTENSE THAN CIVIL NEGLIGENCE-
The Apex Court in Jacob Mathew was examining the criminal negligence, therefore, it distinguished the
criminal negligence from civil negligence required for liability of a Tort. The Court made it clear that”to
fasten liability in Criminal Law, the degree of negligence has to be higher than that of negligence enough
to fasten liability for damages in Civil Law.” In criminal negligence, the term is recklessness which means
a gross negligence, which is not the case for liability nder the Tort. Lord Atkin also made such distinction
in Andrews v. Director of Public Prosecution,(1937)AC576 as” Simple lack of care- such as will constitute
civil liability is not enough for purposes of criminal law
NEGLIGENCE IN TORTS IS NOT GUILTY INTENTION OR MENS REA- Under Law of Torts, Negligence has TWO
MEANINGS:
1. Negligence as a mode of committing certain torts like, negligently or carelessly committing trespass,
nuisance or defamation. In this context it makes negligence a mental element.
2. Negligence is also considered as a separate tort. It means a conduct which creates a risk of causing
damage, rather than a state of mind. House of Lords gave this meaning to negligence under law of torts
in the case of Donoghue v. Stevenson.
ESSENTIALS OF NEGLIGENCE-
Three essentials of Negligence under Law of Torts are as under:
1. Duty of care to the Plaintiff- The defendant owed the duty to take care in respect of the plaintiff or all
persons like him (as in right in rem). What is the duty and what is extent? It depends on the foresseability
of injury i.e. the defendant could know that his failure to perform his duty may result in injury to any
person or property. However, it does not cover foreseeing the remote possibility of injury. Remote
possibility is one which is not the direct consequence of the act done by the defendant, and such a
consequence may not be foressen by any person of ordinary prudence. In Bolton v. Stone, where in the
cricket stadim 17 ft high over the pitch went outside the stadium and hit the plaintiff on the highway,
which never happened during past 30 years. The principle of remote possibility was applied by the House
of Lords, and stadium management held not liable.
2. BREACH OF DUTY- The defendant failed to perform his duty, and thereby causing the accident or the
act known as Tort. For declaring the breach of duty, the Court is to take into account the STANDARD OF
CARE expected of the defendant. It depends upon the circumstances of the case i.e. NATURE of DUTY, the
DEFENDANT ( an ordinary man or Professional) and the AMOUNT OF CONSIDERATION PAID. .We can name
as:
(i) The importance of the object to be achieved-i.e. avoiding fall of wall, motor accident or a safe surgery.
(ii) The magnitude of the Risk involved i.e. What can be the possible consequence of Negligence- Like
normal injury, loss of reputation, or death of the person involved.
(iii) AMOUNT of Consideration Paid for highering services- If more than normal, the magnitude of care also
increases. As we can differentiate medical treatment by an ordinary doctor and by a superspecialist .
3. DAMAGE- What the loss of the Plaintiff as a consequence of failure to perform the duty by the defendant.
The damage is to be compensated by paying compensation or damages. More the losss, more the
compensation awarded by the Court.
PROFESSIONAL AND MEDICAL NEGLIGENCE-
Negligence may be in ordinary cases of torts like motor accidents, maintenance of buildings etc etc but it
can also in the cases where an act s done by a professional, like a doctor, engineer, advocate etc. In cases
of professional, the degree of care is obviously more than is expected from an ordinay man. While applying
the standarad of an ORDINARY PRUDENT MAN, in cases of professionals, it shall be treated as the
ORDINARY PROFESSIONA OF THE STATUS OF Defendant. The BOLAM TEST applied in such cases is
ORDINARY PROFESSIONAL OF THE LEVEL OF PROFESSIONAL OF STANDARD WHICH DEFENDANT HOLDS.
MEDICAL NEGLIGENCE- These days, medical negligence has become an important category of Torts arising
out of negligence of Medical Professionals. Therefore, Medical Negligence is the negligence done by the
professionals involved in medical treatment. It includes physicians, surgeons, nursing staff. Pathologists,
and also general staff of the hospital or clinic..
CRIMINAL AND CIVIL MEDICAL NEGLIGENCE- Section 304-A IPC deals with negligent act causing accident
resulting in the death of a person. It is criminal negligence. And negligence covered in general cases,
causing some damage and constituting a Tort is Civil Negligence. Whereas in Criminal Negligence the
defendant is to be awarded sentence like of Imprisonment;and in Civil negligence like Torts a
compensation is to be claimed by the Plaintiff. A case may give both options to the plaintiff- to prosecute
for offence (criminal negligence) or under Law of Torts (for civil negligence). Supreme Court in Jacob
Mathew v. state of Punjab,, AIR 2005 SC3180 has very clearly differentiated civil and criminal negligence.
CRIMINAL NEGIGENCE DEMANDS PROOF OF MORE NEGLIGENCE- In Jacob Mathew, the SC held that to
make the defendant liable for criminal negligence, a greater degree of negligence is required to be proved.
It is called RECKLESSNESS. But for liability in civil case like Torts, negligence of ordinary level is sufficient.
However, in Res Ipsa Loquiter cases, even no proof is required.
SOME IMP. CASES OF MEDICAL NEGLIGENCE
 1. Jacob Mathew v. State of Punjab, AIR 2005 SC 3180 is the latest important Indian case, where
negligence was defined, civil and criminal negligence distinguished, and held that to constitute criminal
negligence a higher degree of negligence named “Recklessness” is required to be proved, but for a Tort
an ordinary prudent man negligence that caused the damage is sufficient.
2. Indian Medical Association v. VP Shantha and Others, (1995)6SCC651,made it clear that medical
professionals are also liable like other professionals under a contract or law of Torts. The Apex Court
distinguished professional from an occupational liability. A professional is desired to possess the required
degree of competence and he must also exercise reasonable care while giving medical advice and
performing his duties.
3. In M/S Spring Meadows Hospital v. Harjot Ahluwalia, (1998)4SCC39,the Supreme Court held that an
error in judgment is not negligence, and it can also be negligence if it would not have been made by a
reasonably competent professional. The case also gave a definition of the Term “negligence” with 3
components, viz. Duty, Breach and Resulting Damage.
4. State of Punjab v. Shiv Lal. AIR 2005 SC 3280 was a case of family planning operation (Vasectomy)
performed by a Govt. doctor. The question of Vicarious Liability was involved, which the court held can
be applied in such cases but only if medical negligence is proved. But the incompetence of the doctor who
performed the operation and negligence on his part is required to be proved.
5. In V. Kishan Rao v. Nikhil Super Speciality Hospital,(2010)5SCC523,it was declared when the principle of
res ipso loquitur will be applicable in medical negligence cases. The Court observed that the principle is
to help the plaintiff who for no fault of his own is unable to prove how the accident occurred. The Apex
Court relied on the English case Scott v. London & St.Katherine Docks Co., (1865 3H&C 596, where it was
observed:
“ Where the thing is shown to be under the management of the defendant or his servants and the accident
is such as in the ordinary course of things does not happen if those who have the management used
proper care, it affords reasonable evidence, in the absence of explanation by the defendants that the
accident arose from want of care.”
DOCTOR’S DUTY OF CARE SUMMED UP- There are 3 dutes of the doctor :
1. A duty of care in deciding whether to take the case.
2. A duty of care in deciding what treatment to be given.
3. A duty of care in the administration of the treatment.

CONTRIBUTORY NEGLIGENCE

MEANING- Contributory negligence is negligence of both parties i.e. the plaintiff and the defendant
resulting in the damage that has been caused to the plaintiff.
DEFINITION- The Supreme Court defined the term in the case of Municipal Corporation of Greater Bombay
v. Laxman Iyer, AIR 2003 SC 4182 as : “ An accident would be said to be the result of contributory
negligence if the proximate cause of the accident is the act or omission amounting to want of ordinary
care or in defence of duty or obligation on the part of the complaining party (the plaintiff) has conjoined
with the other party’s negligence.”
ILLUSTRATIONS- There are several decided cases of contributory negligence, majority being related to
transport and electric accidents, where contributory negligence was the issue. Some of these cases are
referred hereunder:
1. Rural Transport Service v. Bezlum Bibi, AIR 1980 Cal 165, the passengers were sitting on the roof of the
bus. In an effort to overtake a cart, the driver went on the kucha road. One passenger fell and died. It was
held the passenger on the roof also contributed negligence alongwith the driver.
2. Sushma Mitra v. M.P. State road Transport Corporation, AIR 1974 MP 68, the plaintiff was travelling
on a highway keeping his elbow on a window sill. The plea of contributory negligence was not accepted
because it was the highway, leaving no chance of close traffic or things touching the bus. Had it been a
crowded street, it would have been a case of contributory negligence.
3. Municipal Board Jaunpur v. Braham Kishore, AIR 1978 All 168, the plaintiff going on bicycle without
headlight in darkness fell in the ditch dug by thr defendant without providing light danger. It was held as
a case of contributory negligence.
4, Agya Kaur v. Pepsu Road Transport Corporation, AIR 1980 P&H183, an overloaded rickshaw going on
the correct side was hit by bus from opposite wrong side and with high speed. It did not stop and later hit
a pole. The plea of contributory negligence of rickshaw driver being overloade was not accepted.
THE TEST FOR APPLYING CONTRIBUTORY NEGLIGENCE-
1. Had the plaintiff’s negligence not there, the accident could have been avoided.
2. Both plaintiff and defendant did not take reasonable care.
3. The last opportunity rule can also be applied while applying principle of contributory negligence.
WHAT IS LAST OPPORTUNITY RULE?
In an English case of Davies v. Mann (1882) this rule was explained as; “ When two persons are negligent
and one of them who had the last opportunity to save the accident by taking ordinary care, which he has
not taken. Then such later person shall be only liable. But these days the courts apply the rule of
contributory negligence in such cases.
WHETHER CONTRIBUTORY NEGLIGENCE IS A DEFENCE? As from the reported case law and the statutory
provisions on the point, contributory negligence is not a complete defence for the defendant for escaping
from the liability. It results in apportionment of damages.
APPORTIONMENT OF DAMAGES-
In India there is no national legislation like the Law Reform (Contributory Negligence) Act, 1945 in England,
only Kerala Act of 1976 is there accepting rule of Apportionment of Damages in the case of contributory
negligence. But the case law on the point indicates that the Indian courts are accepting the rule of
apportionment of damages, thereby reducing the liability of the defendant of the extent of contributory
negligence of the plaintiff with a particular mention thereof in the judgment.

COMPOSITE NEGLIGENCE
Composite Negligence as a legal principle in Torts goes close to the Contributory Negligence in the sense
that more than one person is held to be negligent resulting in the damage. The principle of Apportionment
of damages (compensation) is also applied in both. But the difference remains that whereas in
Contributory Negligence the other person is the Plaintiff who is suing. But in Composite Negligence, it is
not the Plaintiff but More Than One Defendants. Such persons are called “Composite Tortfeasors”.
ILLUSTRATIVE CASES-
1. Pepsu Road Transport Corporatin v. Qimat Rai Jain, 1985ACJ16(P&H), where two passengers on the
highway were resting elbows ofn the window sill, the truck from the opposite direction hit the right side
of the bus, causing injuries. The principle of contributory negligence was not accepted but the composite
negligence rule was applied for the reason of negligence of both drivers.
2. Karnataka State Road Transport Corporation v. Krishnan, AIR 1981Kant.11, where two passengers
sustained left hand injuries when two passenger buses brushed each other. Composite Negligence was
applied.
3. Parsani Devi v. State of Haryana, 1973 ACJ 531(P&H), negligence of State bus and private jeep driver
was held. But Haryana Govt was made to pay the damages, leaving it open to them for recovering from
private jeep driver.
JOINT & SEVERAL LIABILITY- High Courts are divided on this point but the later trend is:
1. The principle of Composite Negligence is applicable in Torts.
2. The liability in such cases is Joint and also several. Under it one defendant can not avoid paying full
compensation.
3. The defendant made to pay full amount of compensation may recover from the other negligent person,
made defendant or not.
4. The Court when asked specifically may apportion the liability of different defendants.

DIFFERENCE BETWEEN CONTRIBUTORY & COMPOSITE NEGLIGENCE

1. Negligence is common in both cases. The standard of care, breach of duty and result of damages as
essentials of Negligence are equally applicable in Contributory as well as Composite Negligence. The
standard of care of Ordinary Prudent Man or of a Professional are equally applicable.
2. NEGLIGENT PARTIES- In contributory negligence, they are plaintiff and defendant but in Composite
Negligence, it is not the plaintiff but more than one defendants.
3. APPORTIONMENT OF DAMAGES- In both contributory and composite negligence, the contribution to
the damage is apportioned, and accordingly, the liability can be apportioned. But under the principle of
Joint and several liability, in composite negligence, the liability of even one party can be held, leaving him
open to recover from the other negligent person.
4. LESSER COMPENSATION- In contributory negligence, the amount of compensation payable to the
plaintiff gets reduced to the extent of his liability, but in Composite Negligence, the plaintiff gets full
compensation.
5. RULE OF CONTRIBUTORY NEGLIGENCE MORE ACCEPTED- The courts in India have accepted more clearly
and uniformly the rule of contributory negligence in Torts but the Rule of Composite Negligence is not
that uniformly and clearly applied.
CONCLUSION- Negligence has been recognized a well accepted and important concept of liability in Torts
but the required statutory support is missing. Since, Law of Torts is now being more based on the written
law, the enactment of Tort Law Based on Negligence is required, particularly when liability under
contributory negligence and Composite Negligence is required to be fixed.
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Q. 7. WHAT IS NUISANCE? DISCUSS WITH ILLUSTRATIONS WHEN NUISANCE BECOMES WRONG OF
TORTS.
INTRODUCTION- Nuisance is a form of Tort, which has some resemblance with Tresspass, another form
of Torts. But nuisance is somewhat lighter form in comparison to Tresspass. The common thing between
these two kinds of Torts is it is related to the property of another. Also the common point in these two
kinds of Torts is that these torts are also covered under the criminal wrongs when the trespass or nuisance
are of a grave nature. In the case of Nuisance, the offence under the IPC is constituted when it is Public
Nuisance.
MEANING OF NUISANCE-
In common language Nuisance means the act that is irritating. Such irritating act may be unlawful or in
certain cases it may not be a violation of the law. To constitute Tort of nuisance, the act must be unlawful,
and is interference in the use of one’s land or any right connected with it.
NUISANCE DEFINED-
Winfield defined the term Nuisance as: “Nuisance as a Tort means an unlawful interference with a
person’s use or enjoyment of land or some right over or in connection with it .”
This definition was adopted in the case of Bhanwarlal v. Dhanraj, AIR 1973 Raj 212.
Pollock defines Nuisance as: “Nuisance is the wrong done to a man by unlawfully disturbing him in the
enjoyment of his property or in some cases in the exercise of common right.”
Pollock’s definition was adopted in the English case of Howard v. Walker ( 1947)2 All ER 197.
ESSNTIALS OF NUISANCE / WHEN NUISANCE BECOMES A TORT-
The following are THREE essential elements which make the Tort of Nuisance:
1. Unreasonable Interference.
2. Interference with the use or enjoyment of land.
3. Damage caused.
These essentials may be explained with illustrations from reported cases as under:
1. UNREASONABLE INTERFERENCE- It is interference that must be unreasonable, meaning thereby that a
normal nature of interferference in the enjoyment of right on one’s land does not constitute a Tort. It is
only when it is more than the ordinary or reasonable extent of it. The following were declared to be
unreasonable interferences in the enjoyment of rights over one’s land:
In Radhey Shyam v. Gur Prasad, AIR 1978 All 86, running of a floor mill in the residential building was held
to be nuisance because it will create unreasonable noise and interference in the life of other persons
residing in the same building.
In Ushaben v. Bhagya Laxmi Chitra Mandir,AIR 1978 Guj 13, the plea for permanent injunction restraining
the defendants from showing film “Jai Santoshi Maa” because it will hurt the plaintiff’s religious feelings,
was not accepted as unreasonable interference in life.
STANDARAD OF ORDINARY MAN AND OVERSENSITIVE PLAINTIFF NO GROUND- What is reasonable or
unreasonable, it is to measured on the yardsticks of an ordinary man and an oversensitive man can not
claim it unreasonable interference as per his own standards. An English case of Robinson v. Kilvert (1889)
declared it.
NUISANCE IS CONSTITUTED WHEN IT IS CONTINUOUS- In a case of bad smell etc. it will be a nuisance if it
is continuous and/or for long intervals. A bad smell or other problem for a short while and its single
instance does not constitute Nuisance. In Stone v. Bolton , (1949) All ER 237, held that to constitute
nuisance, it must be “a state of affairs” to constitute nuisance.
MALICE MAKES IT ACTIONABLE WRONG- If the defendant creates nuisance with a bad intention and to
create problem to the plaintiff, like loud music or voices near the adjoining wall of the plaintiff’s bedroom,
it becomes actionable as a Tort of Nuisance, it was held in the English case of Christie v. Davey (1893).

2. INTERFERENCE WITH THE USE OR ENJOYMENT OF LAND- Such interference may be:
(i) Injury to the property, or
(ii) Injury to comfort of occupants of certain property.
INJURY TO PROPERTY-
An unauthorized interference by the defendant with the property of plaintiff through some direct tangible
or intangible object which causes damage to the property is Nuisance. It may be branches of a tree or
Escape of Roots, Water ,Gas, Smoke or Fumes, Vibrations on to the neighbour’s land. All these have been
held Nuisance as injury to the property.
SUPPORTFROM NEIGBOUR’S LAND- Which the neigbour has right to remove is not actionable as damage
to property. But if such support is a GRANT i.e. sanctioned or by Prescription i.e. by way of long
uninterrupted use, then such removal of support becomes actionable wrong as Tort of Nuisance.It was
held it Dalton v. Angus (1881).
INJURY TO COMFORT- Right to Air and Light have been held prescriptive and essential easement rights
recognized both under the English and Indian Laws. Indian Easements Act, 1882 under section 15 and
section 25 of the Limitation Act, 1963 recognise such easement rights.
ESSENTIALS FOR EASEMENT RIGHT IN INDIA-
1. Right has been peaceably enjoyed.
2. It was used as an easement i.e. right in the property of another.
3. It was used as a Right.
4. Exercise of right was without interruption i.e. continuously without breaks or objections.
5. Right has been in use for atleast 20 years.
INJURY TO COMFORT OR HEALTH- If it is real and not only fanciful has been held to be Nuisance. Rule of
Ordinary Prudent Man and reasonable use shall be applied.Loud noises through out night hours in the
adjoining stable, club, music, fireworks etc have been held nuisances.
3. DAMAGE TO PROPERTY- As it is general to constitute a Tort, damage is normally required to be proved.
But in private nuisance, where injunction is to be obtained,the damage can be presumed by the Court and
plaintiff is not required to prove it. On the other hand, in Public nuisance, damage is generally required to
be proved to claim compensation.
TWO KINDS OF NUISANCE-
1. Public Nuisance or Offence of Nuisance
2. Private Nuisance or Tort of Nuisance
PUBLIC NUISANCE- It is nuisance on a public way or public place which is causing nuisance or interference
to a large number of people. Under section 268 IPC it has been declared an offence.The term has been
defined as:
“ Public Nuisance- Aperson is guilty of a public nuisance who does any or is guilty of an illegal omission
which causes any common injury, danger or annoyance to the public or to the people in general who dwell
or occupy property in the vicinity or which must necessarily cause injury, obstruction, danger or
annoyance to persons who may have occasion to use any public right.”The Code thereafter deals with
different kinds of such negligent acts like spreading infection,of disease, disobedience to quarantine rule,
fouling water of public reservoir, making atmosphere noxious etc etc prescribing punishment from 6
months to 2 years imprisonment.
2. PRIVATE NUISANCE- is Tort of nuisance with 3 essentials of- unreasonable interference, interference
with use of enjoyment of land, and damage.
DEFENCES AVAILABLE IN NUISANCE
The defences that can be used to escape from liability in a tort of nuisance are divided into two categories
as:
1. Effectual Defences, and
2. Ineffectual Defences
EFFECTUAL DEFENCES- These are complete defences which have been accepted by the courts in different
cases. Such defences are TWO only as:
(i) PRESCRIPTIVE RIGHT TO COMMIT NUISANCE- Prescriptive right is aright in the property of another’s
land which has become legal as an easement. If conditions of the Easement Act like Peacuful enjoyment,
uninterruptedly and continuously as a right for over 20 years, are fulfilled it becomes the prescriptive
right, which cannot be taken away and deprivation of such right amounts to a Tort .
(ii) STATUTORY AUTHORITY-Like a general defence under Law of Torts, an act of an authority empowered
under the statute, like the Railway company can undertake the work assigned to it and nuisance caused
as a result of such act will not be a tort for claiming compensation.
INEFFECTUAL DEFENCES- These are not complete defences uniformly accepted by Courts but may be
pleaded by the defendant to escape from liability or to reduce the compensation. These are the following:
1. Nuisance due to acts of others i.e. apart from defendant some other persons are also causing nuisance.
It may be a defence for shifting the case to another person or of a composite nuisance.
2. Public Good- The plaintiff has done the act for the betterment of general people, like opening a fish
shop or a business for convenience of people going far off.
3. Reasonable Care- That defendant was taking all possible care but of no use.
4. Plaintiff Himself Coming to Nuisance- The defence that defendant could have avoided the damage by
taking another way. It is also ineffectual defence to be tested on general principles of Tort Law.

CONCLUSION- Nuisance as a kind of Tort is becoming important these days when people are becoming
used to more comforts of life, and are also becoming more conscious of their rights. More Indian case law
on the point will make the concept more clear in the times to come.
------------------

Q. 8. DEFINE TRESPASS A ND EXPLAIN TRESPASS AGAINST IMMOVABLE LAND AND TRESPASS AGAINST
BODY CONSTITUTING ASSAULT AND BATTERY.

Introduction-
As per Salmond, Trespass was the first kind of Tort recognized in Law. In fact, it included all kinds of torts.
Salmond writes,” In its widest and original signification, it includes any wrongful act- any infringement or
transgression of the rule of right.” In the second stage, trespass became narrower to mean “any legal
wrong for which appropriate remedy was a writ of trespass – viz. any direct and forcible injury to person,
land or chattel.” Then, as per Salmond came the third stage with its narrowest meaning, in which “it is
limited to one particular kind of trespass in the second sense- viz. the tort of trespass to land.” Salmond
narrates that the term Trespass as “crossing the boundrry” had its beginning from curly hair turning to
be so with long intervals of voyage on the ship without washing the hair. Therefore, Trespass is not only
earliest but also the most important form of Torts. It was yesterday and continues to be today itself.
MEANING OF TRESPASS- The literal meaning of the word Trespass is ‘Tres i.e. curly and ‘Pass’ means
crossing. Therefore, Trespass is crossing the limits of Curly hair. It was Trespass of the Person. In the
property, it was applied as “crossing the boundary of property of another person. It means any direct
injury to a person, his goods or his immovable property.
TWO KINDS- Trespass is of Two Kinds and both the kinds have been dealt and defined separately by the
authors. These are:
1. Trespass to Land, and
2. Trespass to Person.
TRESPASS TO LAND
DEFINITION- Trespass to land is entering upon the premises of another person without his consent, or
even continuing there without his consent, or even it may be going beyond the limits consented by the
possessor of the premises. It is unlawful or unpermitted entry upon the premises of another person.
Indian Penal Code defines the term Criminal Trespass under section 441 as:
“ 441. Criminal Trespass- Whoever enters into or upon property in the possession of another with the
intent to commit an offence or to intimidate, insult, or annoy any person in possession of such property.
Or having lawfullyentered into or upon such property, unlawfully remains there with intent thereby to
intimidate, insult or annoy any such person, or with intent to commit an offence,
Is said to commit “criminal trespass”.
MAKING OUT TRESPASS AS A TORT- From the above definition of an offence i.e. Criminal Wrong, if we try
to make out Trespass as a Civil wrong i.e. A Tort of Trespass to Land, it could be defined as:
Whoever enters upon the landed property in possession of another person without his consent without
the consent of such person, or continues to overstay there beyond the time or limits of such permission
to annoy the possessor, is said to have committed the tort of Trespass.
AS per English Case Law- Trespass to land means interference with the possession of land without lawful
justification. In Lawrence v. Ober (1815), the Court further clarified that trespass could be committed
either by person himself entering the land ofanother person or doing the same through some material
object, e.g. throwing of stones on another person’s land, driving nails into the wall, placing ladder against
the wall or leaving debris upon the roof etc.
Therefore, Trespass to land can be defined as “An unauthorized interference in the possession of another
person’s premises”. As per Salmond, the tort of trespass to land consists in the act of:
1. Entering upon land in the possession of the plaintiff; or
2. Remaining upon such land; or
3. Placing or projecting any object upon it.
In each such case, it is without a lawful justification.
ESSENTIALS OF TRESPASS TO LAND-
The following essentials emerge out of definitions:
1. An unauthorized interference
2. Such interference is in the use of land or premises
3.. The land or premises are in the possession of another person
UNAUTHORISED INTERFERENCE-
It is interference in the possession and use of land or premises by the person who has no permission of
law or the person in legal possession of such premises. In Graham v. Peat (1801), the plaintiff was
holding land under a void lease. It was held to be a trespass. On the other hand, in the famous Six
Carpenters’ Case(1610) six carpenters ordered wine and bread, consumed it and refused to make
payment. It was held not a case of trespass because entry of carpenters was not unauthorized. In
Madhav Vithal Kudwa v. Madhavdas Vallabhdas, AIR 1979 Bom 49, where the tenant of first floor used
to par k his car in the yard of groundfloor. In the case of trespass, the High Court declared the defendant
had the legal authorization, as a part of tenancy, to park his car. It was not trespass, the same being an
authorized act.
INTEREFERENCE IN THE USE OF PREMISES- Trespass is basically related to possession of land, and not
connected with ownership of land. The possessor has a right to use the premises. As in the Madav Vithal
Kudwa’s case, the tenant was held to have right to use the yard space for parking his car i.e. using it.
Likewise, in Six Carpenters’ case, the matter was decided to the point of entering into premises and
sitting i.e using it with implied consent of the owner of the premises.
PREMISES IN THE POSSESSION OF ANOTHER- The term possession is important. Here, it is made clear
that even if the owner enters upon the premisises he has given on rent, he has a right to enter the
premises with the permission of the tenant. Under the Specific Relief Act, even the person in wrongful
possession is protected for getting an Injunction unless he is dispossessed in a legal manner and by
proving his better title. Therefore, trespass is constituted when the trespasser enters upon the premises
in the legal possession of another person.
REMEDIES AVAILABLE IN TRESPASS-
In a suit for trespass to the land or premises, the following reliefs may be claimed and granted by the
Court:
1. RE-ENTRY- In case the plaintiff has been dispossessed, he has hir right to get re-entry in his premises
by order of the court, and if need be with help of the police.
2. ACTION FOR EJECTMENT- It is getting order of the court for getting the trespasser removed from the
premises who has wrongfully occupied the possession. Section 6 of the Specific Relief Act, 1963 gives
this speedy remedy.
3. M ESNE PROFITS- Mesne Profits are the profits which the person in wrongful possession has earned or
could have earned during such wrongful possession of the land or premises. The plaintiff has a right to
seek this relief from the Court along with seeking re-entry.
4. DAMAGES- AS is in every Tort, the damage caused to the premises shall be recovered as the damages
or compensation.
5. DISTRESS DAMAGE FEASANT- In case, the trespasser has kept some object like cattle etc on the
premises, the real possessor has a right to keep such object till his amount of compensation is paid. This
right is subject to many ifs and buts, and can be excercised only if court permits and such cattle and
chattel continue to remain on the premises after the trespasser has ejected.
DEFENCES AVAILABLE TO TRESPASSER-
The defendant can plead the following defences in his favour:
1. LEGAL RIGHT- That the defendant had a legal right to enter upon the land or premises, say he is a
tenant or a licence holder.
2. CONSENT OF THE PLAINTIFF- That his entry was with the valid consent of the plaintiff.
3. STATUTORY AUTHORITY- An official, say the Police Officer, Income Tax Official or any other statutory
authority has entered upon the premises to perform his legal duties and the plaintiff was resisting to it.
Under Cr. P. C. section a police officer can make a forcible entry to arrest the accused if he was not
permitting entry through the main door.
4. BETTER LEGAL TITLE- If the defendant has a better legal title than the plaintiff over the land, he can
plead to get a right to his possession over the premises.
5. ENTRY BY MISTAKE- Although mistake is not a valid ground but if it is genuine, like under a mistaken
belief he entered into the premises, it can be accepted as a defence.
6. ENTRY TO SAVE HIMSELF- Supposing some miscreants were following the defendant with weapons, to
save himself, if he enters into some premises not in the occupancy of any person, the defendant can
take tis defence.
CONCLUSION- Trespass to the land is a TORT as well as a criminal wrong, as recognized under section
441 and other sections like lurking house trespass etc under IPC. As a Tort also,it is the first and most
important kind of Tort.
TRESPASS OF THE BODY/PERSON
MEANING- Trespass to the body means touching or causing harm to the body of a person without his/her
consent and without any lawful authority. In this kind of Tort, force may have been used or not. This is a
Tort i.e. a civil wrong and also recognized as an Offence i.e. criminal wrong, particulary when force is used
or intended to be used.
THE REASON OF PROTECTING LIBERTY-Salmond’s new editions of treatise on Law of Torts refer to it with
reference to modern cases. It has been observed, “ So any direct and immediate interference with
personal liberty is actionable without proof of damage.—therefore, all or nearly all medical treatment and
all surgical treatment of an adult administered without consent is tortuous. This is incontestable.”
BATTERY AND ASSAULT TWO IMPORTANT KINDS-
Battery and Assault are two important kinds of Trespass against person or body recognized under the
English law.
BATTERY AS A TORT-
DEFINITION Salmond gives the definition on the basis of English case law as:
“Intentionally to bring any material object into contact with another’s person is a sufficient application of
force to constitute a Battery for example to throw water on him, or to pull chair from under him, whereby
he falls on the ground , orto appky a tone rinse to his scalp. So it is battery forcibly to take from him some
object he holds or wears.”
Battery consists of Intentional application of Force to another person Without any law ful justification,
TWO ESSENTIAL INGREDIENTS OF BATTERY- Are:
1.Use of Force
2. Without any lawful justification.
USE OF FORCE- Force here does not mean sufficient to cause Hurt, it may be very trivial (small). Simple
touching of another person’s body with Anger has been held to constituting Battery in the English case of
COLE v. TURNER.It may also not be a body touch. Touch of stick, throwing water or spitting on a man’s
face , pulling chair to make person fall have been held to be Battery.
But a passive obstruction from entry entry like door or wall to prevent entry in the room was declared to
be Not Battery in INNES v. WYLIE.
WITHOUT LAWFUL JUSTIFICATION- The essential requirement for wrong of Battery is –(1) It should be
intentional and (2) It should be without lawful Justification. Use of force to oust a trespasser is justified,
like touching the person without railway ticket to go out is no battery. In Cherubin Gregory v. State of
Bihar, AIR 1965 Mad 438 where naked electric wire was used to prevent persons from using a Laterine
was held to be Unjustified force, and declared Battery.
TORT OF ASSAULT- In simple words: An Attempt to commit Battery is said to be ASSAULT. It is
reasonable apprehension of causing Battery.
DEFINITION- In STEPHENS v. MYRES (1830) it was defined as: “ The act of putting another person in
reasonable fear or apprehension of an immediate Battery by means of an act amounting to an attempt
or threat to commit a battery amounts to an actionable assault.”
The following essentials of Assault emerge from this definition:
1. An Act
2. Aimed at putting other person in Fear or Apprehension
3. Fear or apprehension of Immediate Battery
4. Amounting to Attempt or Threat of Battery.
Mere Words Not Assault- In MEDE’s case (1823) it was held- The intent to do violence must be
expressed in threatening acts, not merely in threatening speech.
Words with Act is Assault- IN TUBERVILLE (1669)- it was held the words accompanying an act constitutes
Assault.
If the act is justified it is not Assault- In BAVISETTI VENKATA SURYA RAO v. NANDIPATI MUTHAYYA, AIR
1964 AP 382, the threat to sell of earrings to pay the arrears of land on the last day of such payment was
held by the High Court to be justified and not Assault.
ASSAULT IS ATTEMPT OF BATTERY- In PURSELI v. HORN (1838)- it was held: Generally assault precedes
Bttery. Showing a fist is Assault but actual striking it amounts to Battery. Throwing water on a person is
Assault and when it falls on him, it becomes Battery. But it is not essential that every Battery should
include Assault- like a blow from behind is Battery and at no stage it was Assault.
CONCLUSION- In India like other Torts, Battery and Assault are not often used as actionable wrongs. But
the criminal wrongs related to it,however, in its grave forms as provided under IPC are often put to
use.Mant times such wrongs have been declared TRIVIAL ACTS and not accepted as actionable wrongs.

Q.9. DEFINE DEFAMATION AND GIVE DEFENCES AVAILABLE IN THIS TORT.

INTRODUCTION- Defamation is both a Tort as a civil wrong as well as an Offence punishable under the
Indian Penal Code under section 500. A satisfying fact about India is that unlike many other kinds of Torts,
Defamation is is used as the subject-matter of civil litigation by Indians, and , therefore, has been widely
known as a Tort.
DEFINITION- Defamation is injury to the property of reputation of a person without justification.
In DIXOn v. HOLDEN (1869) it was held that A man’s reputation is his property, and if possible, more
valuable than other property. The Court held: “If a person injures the reputation of another, he does so
at his own risk, as in the case of an interference with the property,”
Salmond defines: “Adefamatory statement is one which has a tendency to injure the reputation of the
person to whom it refers, which tends, that is so to say to lower him in the estimation of right thinking
members of the society generally and in particularly to cause him to be regarded with feelings of hatred,
contempt, ridicule, fear, dislike or disesteem.”
IPC DEFINES the TERM DEFAMATION UNDER SECTION 499 AS:
“Whoever, by words either spoken or intended to be read, or by signs or by visible representation, makes
or publishes any imputation concerning any person intending to harm, or knowing or having reason to
believe that such imputation will harm, the reputation of such person, is said to, except in the cases
hereinafter, to defame that person.
ESSENTIAL ELEMENTS- 1. It is imputation i.e. a statement of allegation/derogatory.
2. Such statement may be expressed by the wrongdoer in words which may be spoken or in wrting to be
read, or it may also be signs or visible representation by any other made.
3. Such a statement is made public i.e. in the presence of others (if orally) or read by others i.e. other than
the person defamed.
4. The intention of the wrongdoer is to lower the image of person wronged in the estimation of others.
5. The statement must be referred to the plaintiff.
FOUR EXPLANATIONS- IPC clarifies Defamation by way of 4 Explanations as under:
1. Defamation of a dead person- If it would have been defamation had he been alive, and injures the
feelings of his family members. English law of Torts does not recognize defamation of the dead man.
2. Defamation can be of a Legal or Corporate Person like a Company, Society, Trade Union etc.
3. The Ironical or Sarcastic words can also be defamation.
4. The imputation worth lowering the reputation of a person is defamation.

TWO KINDS OF DEFAMATION- As defamatory statement can be either spoken or in written form i.e. in
temporary form or permanenr (long duration) form, it is distinguished as:
1. LIBEL
2. SLANDER
WHAT IS LIBLEL-Libel is representation in some permanent form, like writing, printing, picture or statute.
English law tries to name it defamation to the eye is Libel, but again the case law has made certain
exceptions to this mode of classification.
WHAT IS SLANDER- On the other hand, Slander is representation of defamatory statement in a
temporary or transient form. English law tries to name it by the mode of Ear.
DISTICTION OF EYE AND EAR IS NOT CLEAR- For example, a defamation by signs in the presence of some
persons, it is temporary in nature but it is defamation to the eye. It has been held to be Slander, and not
libel . Likewise, a matter recorded on a gramophone disc is addressed to the ear but it is of permanent
nature. Therefore, in some English cases it was declared libel and in others a slander.
NO DISTICTION UNDER INDIAN LAW- Indian Law under IPC and also under Law of Torts does not make
any distinction between Libel and Slander. Defamation is actionable in both forms, and that too under a
single head of”Defamation”. However, it may be the Court gives more compensation in cases of
defamation in its permanent form, because damage often becomes much more than it is in its transient
form. But in many cases, defamatory statement in a speech, when getting published in the newspaper
becomes defamation in its permanent form. In HCD SILVA v. EM POTENGER, (1946), J. GENTLE observed:
“ In my view, the English rule regarding proof of special damage in actions or slander does not apply in
India.’ In DP CHOUDHARY v. MANJULATA, AIT 1997 Raj 170, it was also held that all defamatory words
are actionable per se and in such cases general damage is presumed.
WHY DISTICTION IN ENGLISH LAW?
1. Under criminal law, only Libel is an offence or crime. Slander is no offence.
2. Under law of torts, slander generally is actionable on proof of special damage. Libel is actionable per
se i.e. without proof of damage. But slander also has been accepted under some exceptioable cases as
actionable per se. Slander of Women ACT, 1891 recognises it.
DISTICTION DOES NOT HOLD GOOD- Indian Law is more clear than the English law to make it clear that
distinction between Slander and Libel does not hold good in the present situations of development,
where it more difficult to classify, whether a defamatory statement is of permanent or transient nature.
English law is also recognizing non-existence of such distinction under modern statutes on the point and
the case law facing diverse and confusing situations.
DEFENCES TO AVOID LIABILITY OF DEFAMATION- IPC gives the following 10 defences as Exceptions to
liability-
1. Imputation of truth which public good requires to be made or published.
2. Public conduct of public servants.
3. Conduct of any person touching any public question.
4. Publication of reports of proceedings of courts.
5. Merits of case decided in court or conduct of witnesses or other persons.
6. Merits of public performance.
7. Censure passed in good faith by person having lawful authority over another.
8. Accusation made in good faith to authorized person.
9. Imputation made in good faith by person for protection of his or other’s interests.
10. Caution intended for good of person to whom conveyed or for public good.
CONCLUSION- Tort of defamation is gaining importance and recognition in the present-day world not
only in developed societies but also in the developing legal systems in India.The increasing case law will
make it further unambiguous.
-------------------------------------

Q.10. DEFINE THE TERM ‘CONSUMER’ AS GIVEN UNDER THE CONSUMER PROTECTION ACT,2019. WHAT
WAS THE NEED AND REASONS TO ENACT THIS SPECIAL LAW? DISCUSS.

INTRODUCTION- The Consumer Protection Act, 2019 is the revised form of Consumer Protection Act,1986.
A special law for protection of consumers was a revolutionary step in Indian legislation to protect the
interests of consumers, as citizens of independent India.
CONSUMER DEFINED- Since the benefits of the Consumer Protection are available to consumers alone,
and every buyer of goods is not a consumer in this sense, therefore, it is foremost required to
Know the persons who fall in the definition of term “Consumer”.
Clause (7) of section 2 of the Act defines the term Consumer to convey:
PART-I OF DEFINITION (BUYER OF GOODS)-
1. Any person
2. Who buys any goods for consideration- wholly paid/ partly paid and partly promised/ wholly promised
Under any system of deferred payments (like hire purchase)
3. It includes any Person who uses the goods with approval of the person who has bought such goods
after paying consideration or promised under system of deferred payments(like hire purchase)
COMMERCIAL BUYER NOT CONSUMER- The definition makes it clear that a person who obtains the goods
for resale or use for a commercial purpose ( i.e. for using it for any business or trade) is not a consumer.
PART-II OF DEFINITION (BUYER OF SERVICES)-
1. Any person
2. Who hires or avails any service
3. For a consideration – paid or promised or partly paid and partly promised under system of deferred
payments
4. It includes the beneficiary of such service other than who the person who hired or availed services for
consideration, when such services are availed with the approval of person who paid/promised paying
consideration.
COMMERCIAL USER EXCLUDED- As is in the case of goods, a person who avails such services for any
commercial purpose.
SOME CLARIFICATIONS GIVEN- Under the Explanation added with the definition, it has been made clear-
1. If a buyer of goods uses exclusively for earning his livelihood by means of self employment (like a
Taxi/Auto driver), he is a consumer and not excluded naming such purchase for a commercial purpose.
2. ONLINE/OFFLINE TRANSACTIONS ARE BUYING?HIRING- The terms in the definition-“buys any goods”
and “hires or avails any services” include offline or online transactions through electronic means or by
teleshopping or direct selling or multi=level marketing.
SOME EXAMPLES OF CONSUMERS- Based on decided case law:
WHO HELD CONSUMERS- Employee who is member of EPF Scheme, An insured person or owner/ buyer
of insured vehicle, a hospital patient, telephone consumer, railway passenger who was overcharged,
company purchasing car for the Manager/Director, electric power consumer etc.
NOT CONSUMERS- An examinee of Board examinations, railway passenger whose train was delayed,
availer of free services, company purchasing computer for office use etc.

NEED AND REASONS TO ENACT THE SPECIAL LAW-

1. IT IS A SPECIAL LAW- Earlier the persons covered under the definition of consumer were required to go
for litigation under the Contract Act as a civil litigant, inviting all provisions, practices and procedural
shortcomings of civil court litigation applying to a breach of contract. CPA, 1986 gave a special protection
and status to consumers under the special law.
2. NEED OF CPA-
(i) CPA, 1986- Exploitation of consumers by the shrewd businessmen with high class but misleading
advertisements, misuse of civil court procedures like long delays, expensive litigation and unending
appeals etc made the ordinary buyer of any goods and services disinterested in litigation. But he always
felt frustrated and exploited by the business system and its legal arrangement. To undo all evils of legal
system and to make the consumer- the King of business feel proud of his place in business, Consumer
Protection Act, 1986 was enacted, which proved to a revolutionary legislative measure in India.
(ii) CPA,2019- CPA,1986 brought about a change in the behavior of consumers as well as in the approach
of seller of goods and services. Consumer Forums became flooded with cases, Consumer Councils created
awareness, Voluntary Consumer Organisations appeared on the scene, almost free-like court services
became available. But in the process, many hurdles came which were tried to be removed by effecting
amendments in CPA,1986. The 1993 amendments were major. and some came thereafter in 2003. But
with the changing pattern of sale/purchase of goods and services, largely increased cost of such goods
and services making access to District Forum restricted etc. led to the felt need for overhauling the
consumer law by way of a new legislation. This fructified as CPA, 2019.
WHAT IS NEW UNDER CPA,2019:
1. Enhanced jurisdiction of Distt. Commission ( Earlier Distt. Forum) to One Crore rupees from 20 Lakh.
And of State Commission increased from One crore rupees to Ten crore rupees.
2. A new concept of Product Liability introduced under Chapter VI.
3. Setting up of a Regulatory body (Central Consumer Protection Authority) under Chapter III.
4. Penalties introduced for misleading advertisements and endorsers of such advertisements (s. 89).
5. Concept of Mediation added under Chapter V.
6. Provision for compounding of offences made u/s 96.
7. And many more desirable amendments.

REASONS FOR CONSUMER PROTECTION ACT-

OBJECTS AND REASONS CLAUSE OF 1986 ACT:
The Objective Clause of the Act mentioned: “An Act to provide for better protection of interests of
consumers and for that purpose to make provision for the establishment of consumer councils and other
authorities for the settlement of consumers’ disputes and for matters connected therewith.” The
objective was to provide for creating special forums for settling the consumer disputes and cause
awareness of consumer rights.
OBJECTS AND REASONS CLAUSE OF 2019 ACT:
It mentions the following important reasons:
1. The working of consumer dispute redressal agencies under the 1986 Act has served a purpose to a
considerable extent but the disposal of cases has not been fast due to various constraints.
2. Several shortcomings have been noticed while administering provisions of the 1986 Act.
3. Consumer markets for goods and services have undergone drastic transformation since the enactment
of CPA 1986.
4. Modern market place contains a large variety of products and services.
5. Emergence of global supply chains, rise of international trade and rapid development of e-commerce
have led to new delivery systems for goods and services.
6. New options and opportunities have been provided to consumers, leaving scope for more vigilance and
protection.
7. Consumers have been made more vulnerable to new forms of unfair trade and unethical business
practices.
8. Misleading advertisements, tele-marketing and direct selling along with e-commerce posed new
challenges to consumer protection
Accordingly, on the Report of the Standing Committee, 2016 a Bill was introduced in the Lok Sabha on 5 th
January, 2018 which ultimately appeared as the Consumer Protection Act, 2019.
CONCLUSION- CPA, 2019 is the modern law to protect the consumer interests. It has plugged many
loopholes of the 1986 but whether it is sufficient to save the consumers from the baffling offers and
advertisements of sellers and manufactures, it is yet to be seen. Let us hope, the law will be adapted and
amended as soon as new challenges surface on the matrix of consumer markets.
--------------------------------

Q. 11. DESCRIBE THE CONSUMER RIGHTS GIVEN UNDER THE CONSUMER PROTECTION ACT, 2019.

INTRODUCTION- Consumer Protection Act, 2019 is the modern form of Consumer Protection Act, 1986.
Its objective is to protect the consumer interests and to save consumers from unhealthy practices of the
sellers of goods and services.
SIX RIGHTS OF CONSUMERS-
Section 2 under clause (9) enlists the following SIX rights of the consumers:
1. The right to be protected against the marketing of goods and services which are hazardous to life and
property.
2. Right to be informed about the quality, quantity, potency, purity, standard and price of goods, products
or services so as to protect the consumer against unfair trade practices.
3. Right to be assured (wherever possible) access to a variety of goods, products or services at competitive
prices.
4. Right to be heard and to be assured that interests of consumers will receive due consideration at
appropriate forum.
5. Right to seek redressal against unfair trade practices or restrictive trade practices or unhealthy
exploitation of consumer.
6. The right to consumer awareness.
HOW CPA ASSURES CONSUMER RIGHTS?
The Consumer Protection Act, 2019 makes the following provisions for assurance that the said six rights
of consumers shall be protected:
1. RIGHT AGAINST MARKETING HHAZARDOUS GOODS & SERVICES- Section 36 provides for redressal of
the grievance by filing a complaint before the District Commission for value of goods or services up to Rs.
One crore. When such complaint can be filed? The definition of the term itself, as given under Section 2(6)
provides under clauses (v) and (vi) as under:
(v) If the goods being offered for sale are hazardous to life and safety of public because they are not as
per standards of quality prescribed or the trader knows these are unsafe.
(vi) The services being offered are unsafe and hazardous to life and safety.
Sections 90 and 91 provide for punishment for offering such goods or services in situations when no
damage has been caused and if a damage has been caused to the consumers. These punishments are in
addition to the power of the Distt. Commission (and also State and National Commissions) to order
compensation to the consumer, withdraw hazardous goods and services, not to offer them and to stop
manufacture such goods, under section 39 dealing with findings of the Distt. Commission.
2. RIGHT TO INFORMATION OF QUALITY, QUANTITY AND POTENCY ETC.- The term Unfair Trade Practice
has been defined under clause (47) of section 2 which covers all such malpractices. Clause (6) covers unfair
trade practice as a basis of complaint before the competent commission for seeking remedy. Section 39
authorises the Distt. Commission to order compensation to the consumer, to discontinue unfair trade
practice and replace the goods with those of proper quality and standards. Sections 90 and 91 provide for
punishments in addition to compensation.
3. ACCESS TO VARIETY OF GOODS- The earlier Monopolies and Restrictive Trade Practices Act, 1969
(MRTP) and now the Competition Act, 2002 provides for variety of goods and services and regulating a
healthy competition in trade. The CPA 2019 recognises it under the right to education of rights of
consumers including this right.
4. RIGHT TO BE HEARD AND ASSURED DUE CONSIDERATION OF CONSUMER INTERESTS- Chapter II of the
Act provides for establishment of Consumer Councils at District, State and National levels with the
common objective of rendering advice on promotion and protection of consumer rights under the Act.
Chapter III of the Act has provided for establishment of Central Consumer Protection Authority (section
10). Under section 18 the powers and functions of the Authority have been given, which include: to
promote, protect and enforce the rights of consumers as a class and prevent violation of consumer rights
under this Act, to advise the Ministries and Departments of central and State Governments on consumer
welfare measures. Section 17 provides for making complaints of violation of consumer rights to Distt.
Collector, Commissioner of Regional Authority or even to the Central Authority.
5. RIGHT TO REDRESSAL- Chapter IV of the Act provides for establishment of three-level Consumer
Redressal Commissions i.e. District, State and National Commissions for redressal, speedy disposal and
adequate reliefs when consumer is deprived of his deserving goods and services. This part of the Act
constitutes the core of the law and assures redressal of complaints and appeals in a speedy, non-expensive
and consumer-friendly way, also providing for mediation.
6. CONSUMER AWARENESS- It has been recognized as the initial right and fundamental of all consumer
rights. The Consumer Councils at all levels, the Consumer Protection Authority at all its leves and the
Departments of Consumer Affairs in State and Central Governments are assigned the duty of spreading
consumer rights’ awareness on a regular basis. The Voluntary Consumer Organisations have been given
due recognition under the Act for making complaints, coordinating with Consumer Councils and central
Consumer protection Authority.
CONCLUSION The Act of 2019 not only provides for consumer rights as was in the Act of 1986 but it gives
additional emphasis on protection of such rights in a more effective way. The introduction of Mediation
and establishment of Central Consumer Protection Authority with its working arrangement at all levels
has definitely improved the protection of consumer rights.

Q. 12. GIVE A BRIEF ACCOUNT OF CONSUMER PROTECTION COUNCILS AND THEIR FUNCTIONS UNDER
CPA,2019.

INTRODUCTION- The Consumer Protection Act, 2019 (like it was provided under 1986 Act) provides for
Consumer Protection Councils as advisory bodies to the concerned authorities, The purpose is to promote
the consumer rights in an effective and meaningful way Chapter II of the Act from sections 3 to 9 deal
with these Councils.
THREE-TIER CONSUMER COUNCILS-
Three- tiers of the Consumer Protection Councils are:
1. Central Consumer Protection Council- at the National level.
2. State Consumer Protection Councils- at the State level.
3. District Consumer Protection Councils- at the District level.

ESTABLISHMENT OF COUNCILS-
1. Central Consumer Protection Council- Under section 3(1) of the Act, the Central Council shall be
established by the Central Government by notification in the official gazette. It shall come into existence
from the date from the day mentioned in the Notification.
2. State Consumer Protection Council- Section 6(1) provides for establishment of the State Council by the
respective State Government. It is provided that “Every State Government shall establish”. The procedure
is by issuing a Notification in the Official Gazette. Such State Councils shall ceme into existence from the
date mentioned in the concerned Notification.
3. District Consumer Protection Councils- Under section 8(1) the State Government shall establish District
Councils for each of its Districts. The process of such establishment is by Gazette Notification of the State.
Such Councils shall come into effect from the date mentioned in respect of the concerned Council in the
Notification itself.
COMPOSITION OF COUNCILS-
1. The Central Council- Under section 3(2) shall consist of the following Members-
(a) Chairperson- Minister in-charge of the Department of Consumer Affairs in the Central Government.
(b) Members- The number of members as prescribed under the Rules in this regard to represent different
interests as prescribed. Both official and non official members are prescribed to be nominated.
2. State Councils- Under section 6(2) shall consists of the following Members-
(a) Chairperson- The Minister In-charge of the Consumer Affairs in the State Government.
(b) Members-(i) Both Official and Non- official members to represent in the number and interests to be
represented as prescribed under the Rules by the Central Government under section 101(1).
(ii) Members Nominated by the Central Government- under section 6(2) (c) – both official and non-official
. Maximum number is 10.
3. District Councils- Under Section 8(2) to consist of the following-
(a) Chairperson- The District Collector of the concerned District ( named as Deputy Commissioner or by
anyother name).
(b) Members- As prescribed under the Rules in this regard in terms of its number and interests to be
represented. Both official and non-official Members are represented on the District Council.

MEETINGS – INTERVAL AND PROCEDURE-

A. Meeting Intervals-
1. Central Council- As per section 4(1) – To meet as and when necessary but ONE MEETING every year is
mandatory.
2. State Council- Section 6(3)- To meet as and when necessary. But TWO meetings every year are
nrcessary.
3. District Council- Section 8(3) provides, To meet as and when necessary but Minimum of TWO meetings
every year.
B. Time and Place of Meetings- For all the three councils, the time and place of meeting shall be decided
by the Chairperson of the respective Councils.
C. Procedure of Meetings- For transaction of business will be the same as prescribed under the Rules made
by the Central Government under section 101 of the Act.
THE COUNCILS ARE ADVISORY BODIES- Under the relevant sections dealing with the composition of
Central, State and District Councils, it has been clearly provided that the Consumer Councils are advisory
bodies in nature.
OBJECTS OF THE COUNCILS- The Objects of the Central Council (under section 5), State Councils ( section
(7) and District Councils (as mentioned under section 9) are common in language, “To render advice on
promotion and protection of consumer rights under the Act.” The jurisdiction for such advice is obvious:
District for Distt. Council, State for the State Council and the entire country for the Central Council”.
CONCLUSION- The Consumer Protection Councils are importanct institutions for protection and
promotion of consumer interests. Since, the Commissions are directly dealing with redressal of consumer
complaints and Appeals (the State and National Commissions), the Councils are to take a lead for
promoting awareness and also suggest ways and means to the respective Governments as to how the law
can be effective and meaningful in achieving its vision and mission. But generally these Councils remain
defunct for the reason that their objects are not precisely defined and role is not properly appreciated..

Q. 13. DISCUSS THE COMPOSITION AND POWERS OF CONSUMER REDRESSAL COMMISSIONS (FORUMS)
UNDER THE CONSUMER PROTECTION ACT, 2019.

INTRODUCTION- The life blood of Consumer Protection Act lies in the Forums created for redressal of
complaints of consumers at its Three levels, viz. National, State and District. Under the 1986 Act the
District level authority was called District Consumer Redressal Forum but the 2019 Act has named it
District Commission, identical with the State and National Commissions.
COMPOSITION OF COMMISSIONS-
Chapter IV of the Act provides for 3-tier hierarchy of Consumer Redressa Commissions as under:
1. District Consumer Disputes Redressal Commission (District Commission)
2. State Condumer Disputes Redressal Commission (State Commission)
3. National Consumer Disputes Redressal Commission ( National Commission)
COMPOSITION OF DISTRICT COMMISSSION -
Section 29 (1) provides for establishment of the District Consumer Disputes Redressal Commission by the
State Government by Notification in the Official Gazette. Every District shall have the Commission,
however, it has been provided that State Government may establish more than one District Commissions
in a District if it deems fit.
President and Members- Sub-section (2) of section 29 provides that a District Commission shall consist of-
(a) One President, and
(b) Minimum of TWO and maximum of numbers prescribed by the State Govt. in consultation with the
Central Government.
QUALIFICATION & TENURE ETC- As per section 30, the Central Government Rules to be notified shall
prescribe Qualifications, Method of Recruitment, Terms of Office and Removal of President and Members
of the District Commission. Section 31, making Transitional provisions, clarifies that the
President/Member of the District Commission before this Act of 2019 came into force shall continue his
term for which he was appointed.
In case any vacancy of the President or Member arises, section 32 empowers the State Government to
authorize any other District Commission or the President or Member of any other District Commission to
exercise powers and functions of such Commission.
OFFICERS & EMPLOYEES OF DISTT. COMMISSION-
Section 33 provides for officers and employees to be provided by the State Govt. to assist the District
Commission in the discharge of its functions The President of the Commission shall have the general
superintendence ofver such employees.
JURISDICTION OF DISTT. COMMISSION-
Territorial Jurisdiction- As per section 34(2), the District Commission shall have jurisdiction within its
territorial limits i.e. in case one Distt Commission for the district, if more than one in one Distt. Then as
per territorial jurisdiction defined in the notification. As per sub-section (3), the Distt. Commission shall
ordinarily function from the District headquarter unless another place has notified another place in
consultation with the State Commission.
Parties Deciding Territorial Jurisdiction- Section 34(2) provides for deciding the territorial jurisdiction of
the Distt. Commission as under-
(i) In whose jurisdiction, the opposite party or all the opposite parties ordinarily resides or carries on
business (or its branch exists) or such party works for gain at the time of institution of complaint; OR
(ii) Any of the opposite parties (where more than one) ordinarily resides/ works for gain/ carries on
business at time of filing complaint; OR
(iii) Where the cause of action, wholly or in part arises; OR
(iv) Where the complainant himself resides or works for gain.
Pecuniary Jurisdiction- Upto ONE CRORE rupees the value of goods or services paid as consideration.
PROCEEDINGS IN DISTT> COMMISSION-
The following procedure is adopted for redressal of a complaint in te District Commission-
1. Filing of the Complaint
2. Preliminary Hearing
3. Reference to Mediation
4. Continued Proceedings Before Distt. Commission
5. Findings/Order of the Distt. Commission
6. Provision for Review
1. FILING OF THE COMPLAINT- The process of redressal of consumer complaint by the District Commission
initiates with the Filing of the complaint under section 35(1).
LIMITATION PERIOD- Section 69 provides that the complaint is to be filed within TWO YEARS from the day
when cause of action arises.
Who Can File the Complaint-As per section 35(1) ANY ONE of the following may file the complaint:
(a) The Consumer, whom goods ave been sold/agreed to be sold/delivered/agreed to be delivered; Or
who alleges unfair labour practice in respect of good/services.
(b) Recognised Consumer Association , whether consumer involved is member of such association or not.
(c) One or more consumers where there are numerous consumers having same interest but with
permission of District Commission.
(d) The Central or State Government or the Central Consumer Protection Authority established under
section 10 of the Act.
DOCUMENTS WITH COMPLAINT- Section 35(2) provides – Prescribed fee in the prescribed mode and other
required documents like receipts etc establishing the complaint. The complaint can be filed electronically
or by any other prescribed mode.
2. ADMISSION OF COMPLAINT/PRELIMINARY HEARING-
Section 36 provides that the proceedings in the Distt. Commission are to be held bt the President and
atleast One Member. Under section 36(2) the the Distt. Commission by order may Admit or Reject the
complaint ordinarily within 21 days. The rejection of the complaint can be ordered only after giving
hearing to the complainant. Sub-section (3) of section 36 makes clear that if admissibility is not decided
within 21 days of filing the complaint, it shall be deemed to have been admitted.
3. REFERENCE TO MEDIATION- Section 37 provides that on the first hearing after admission of the
complaint or at any later stage, if it appears to the Commission that there was possibility of settlement
between parties, the Commission may direct the parties to give their Consent in writing within 5 Days for
having dispute settled in Mediation as per provisions of Chapter V of the Act. In case of receiving the
consent, the matter shall be referred to Mediation within 5 days of receiving the consent.
4. HEARING BY THE DISTT. COMMISSION- In case the matter is not referred to mediation or if referred,
there has been failure of settlement, the Distt. Commission shall proceed with the Complaint under
section 38. The detailed procedure for such proceedings is given under section 38(2) if it relates to the
Goods and sub-section (3) when it relates to Services.
(i) The common procedure is sending copy of the complaint to the opposite party asking to reply within
30 days or extended time of 15 days. If in case og goods, Lab Analysis or Test is required, it may be got
conducted at the cost of the complainant. If the opposite party fails to file the reply, the complaint shall
be decided on its merits.
(ii) Decision of the Dispute on the basis of Documentary Evidence and Affidavit before the Commission.
As per sub-section (7) the complaint shall be expeditiously disposed off possibly within 3 months if no lab
test and within 5 months where Lab test or analysis is required. Adjournments shall be given only on
written recorded reasons.
For summoning and other purposes, the Distt. Commission has powers of the Civil Court under CPC.
WHAT FINDINGS/ORDERS CAN BE MADE?
Section 39 lists out all such orders which may be relevant in a case. These include; removing the defect,
replacing the goods, payment of compensation, discontinuance of unfair trade practice, or sale of
hazardous/ unsafe goods or any other order deemed fit like issuing correctited advertisements and
payment of Costs. The Order shall be signed by the President and the Member who conducted
proceedings.
5. REVIEW- In case of any error apparent on the face of record, the Distt. Commission on its own motion
or on application by the party within 30 days of order, may review the order under section 40.
6. APPEAL BEFORE THE STATE COMMISSION- by the party aggrieved by the Order to be filed before the
State Commission.

THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION

State Commission is established by the State Government by Gazette Notification under section 42 of the
CPact, 2019. The composition of the Commission and its Jurisdiction, Functions and Powers are as under:
COMPOSITION OF THE STATE COMMISSION- Section 42(3) provides as under:
1. President- ONE, and
2.MEMBERS- Minimum of FOUR and maximum of number prescribed in consultation with the Central
Commission.
BENCHES OF STATE COMMISSION- Section 47(2) provides for constitution of Benches of the Commission
by the President of the Commission. These may be of one or more Members, in case of more members,
the seniormost members shall preside.
Qualifications- of the President and Members as prescribed under the Rules made by the Central
Commission. Such Rules shall also provide for the method of recruitment, appointment term of office,
resignation and removal etc of the President and Members of the State Commission, it is provided under
section 43. However, section 45makes Transitional Provisions in regard to the Presidents/Members of
State Commissions working at the time when 2019 Act came into force- that they will complete their term
as per their earlier appointment.
SALARIES and Allowances- of the President and Members of the State Commission shall be provided under
the Notification issued by the State Government under section 44.
OFFICERS and STAFF- To assist the State Commission shall be determined by the State Government,
provides section 46. Such staff shall function under the superintendence of the President of the
Commission.
PLACE OF WORKING- Section 42(2) provides that the State Commission shall function from the State
capital and/or places notified by the State Govt. in the Official Gazette after consultation with the State
Commission.
JURISDICTION OF THE STATE COMMISSION-
1. Territorial Jurisdiction
2. Pecuniary Jurisdiction, which can be further divided into:
(a) Original Jurisdiction, and
(b) Appellate Jurisdiction
3. Supervisory/Revision Jurisdiction
TERRITORIAL JURISDICTION OF STATE COMMISSION- The territorial jurisdiction of the State Commission
is confined to the State itself. However, under section 62 the National Commission may transfer cases of
of one State Commission to another State Commission. Like it is in the Distt. Commission, section 47(4)
provides that the territorial jurisdiction shall be decided by the party instituting the complaint where-
(a) where the opposite party of each of the opposite parties or any of the opposite parties ordinarily
resides/ carries on business/ has branch office/ works for gain, or
(b) where the cause of action wholly or in part arises,or
(c) where the complainant himself resides or personally works for gain.
ORIGINAL PECUNIARY JURISDICTION- Under section 47(1), the State Commission can entertain consumer
complaints where the value of the goods and services paid as consideration is more than One crore but
does not exceed TEN Crore rupees. However, Central Govt. may prescribe another value.
LIMITATION TIME- Section 69(1) provides TWO Years limitation for filing the complaint with the State
Commission under original jurisdiction.
APPELLATE JURISDICTION- Under section 47(1)(a)(iii), the State Commission can entertain appeals
against the orders of any District Commission within the State.
LIMITATION- Section 41 provides for filing the Appeal within 45 days from the date of order of the District
Commission. However,State Commission may entertain Appeal after 45 days if satisfied that delay was
justified in the circumstances. The procedure and format of Appeal will be as prescribed under the Rules.
POWER OF REVIEW- Section 50 gives the power of Review to the State Commission in case it finds an error
on the face of record. Review may be on its own motion or on the application of any party. It is excercised
within 30 days of its order.
POWER OF REVISION- Under clause (b) of section 47(1), the State Commission is authorized to call for
records and pass appropriate orders in any consumer dispute pending before or decided by any District
Commission within the State, where it appears that such Distt. Commission has excercised jurisdiction not
vested in it or it has failed to exercise jurisdiction vested in it or has acted illegally or with material
irregularity.
POWER TO TRANSFER CASES OF DISTT> COMMISSION- Under section 48, the State Commission has power
to transfer cases from one Distt. Commission to another Distt. Commission within the State on the
application of a party or even on its own motion.
PROCEDURE IN THE STATE COMMISSION-
1. WHILE HEARING COMPLAINTS UNDER ORIGINAL JURISDICTION- Section 49 provides that the procedure
shall be the same as for disposal of complaints by the District Commission as given under sections 35,
36,37 ,38 and 39. However, Sub-section (2) of section 49 additionally provides that the State Commission
may also declare any terms of the contract null and void which are unfair to any consumer.
2. DEPOSITING 50% AMOUNT- Section 41 provides that the State Commission shall entertain the Appeal
only if the appellant has deposited 50% of the amount ordered by the District Commission.
3. HEARING APPEALS/ THE APPELLATE JURISDICTION- Section 52 provides for expeditious disposal of
Appeal to make effort to dispose off the appeal within 90 days . In case it exceeds this time, the written
reasons shall be mentioned.

THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

ESTABLISHMENT BY CENTRAL GOVERNMENT- Section 53 (1) provides that the Central Govt. shall establish
the National Commission by Notification in the Official Gazette.
PLACE OF FUNCTIONING- Under section 53(2), ordinarily it shall be the NCR (National Capital Region) or
other places which the Central Govt. notifies in consultation with the National Commission.
COMPOSITION OF NATIONAL COMMISSION- Section 54 provides it as:
PRESIDENT- One
MEMBERS- Minimum FOUR and maximum as prescribed.
QUALIFICATIONS- of President and Members as prescribed under Rules made by the Central Govt. Such
rules shall also provide the selection procedure, terms and conditions of appointment, salary and
allowances of the President and members of the National Commission.
MAXIMUM TENURE- will be of 5 years, however, eligible for re-appointment.
AGE REQUIREMENT- As specified in the Rules but maximum age for President is 70 years anf for Members
it is 67 years of age. Section 56 makes Transitional Provisions allowing already appointed President and
Members to continue their Term under the old Rules and provisions.
OTHER OFFICERS AND STAFF- To be appointed by the Central Govt. in consultation with President of the
National Commission under section 57. The staff shall function under the controlof the President of
National Commission.
BENCHES OF THECCOMMISSION- Under section 58(2), the National Commission mayfunction through its
Benches consisting of One or more members.
JURISDICTION OF THE NATIONAL COMMISSION-
1. ORIGINAL JURISDICTION- Under section 58(1), if the value of goods or services as paid consideration is
more than TEN CRORE rupees (or other value fixed by Central Govt), National Commission is empowered
to entertain consumer complaints.
LIMITATION- Under section 69 it is same for all commissions i.e TWO years from cause of action with
power to entertain after it if delay is for a sufficient cause. It is to condoned by recording reasons.
2. APPELLATE POWERS- Under section 51, any person aggrieved by order of the State Commission may
file Appeal to the National Commission within 30 DAYS from orders of the State Commission, however,
for sufficient reasons delay may be condoned.
PAYMENT OF 50% AMOUNT- In case an amount has been ordered to be paid by the State Commission,
the Appeal can only be filed after the appellant has deposited 50% of such amount.
3. DECIDING SUBSTANTIAL QUESTION OF LAW- Section 52(2) that National Commission has the power to
hear Appeals against the orders of the State Commission if it involves a substantial question of law.
4. ExPEDITIOUS DISPOSAL OF APPEAL_ Under section 52, it is to be disposed off within 90 days unless
extended for recorded reasons.
5 PROCEDURE- For entertaining complaints is same as for District and State Commissions ie as given under
sections 35 to 39.
6. POWER TO REVIEW- Its orders if error on face of record. It is suo moto or on application of a party
within 30 days of such order.
7. TRANSFER OF CASES- From one State Commission to another State Commission or from District
Commission of one State to the Distt. Commission of another State under section 62.
8. APPEAL AGAINST ORDER OF NATIONAL COMMISSION- Lies to the Supreme Court under section 67
within 30 days of the order. The condition of depositing 50% amount ordered by the National Commission
applies in such appeal as well.
9. ADMINISTRATIVE CONTROL- Under section 70, National Commission has administrative control over all
State Commissions. And State Commissions have such control over the District Commissions of their State.
CONCLUSION- The Consumer Redressal Commissions provide a great relief to the consumers in providing
speedy services and with very less fee. It has brought a revolution in adjudication of consumer disputes.
--------------

Q.14. OUTLINE THE OBJECT OF THE MOTO VEHICLES ACT AND BRIEFLY REFER TO THE AMENDMENTS
MADE IN 2019 TO ACHIEVE THIS OBJECTIVE.
INTRODUCTION- The Motor Vehicles Act, 1988 is a major statute in the area of Law on Torts in India. The
Motor Accidents and injuries resulting therefrom turn to be the important areas where the damages are
claimed from unknown persons. Therefore, the concept of the right in rem as the distinguishing feature
of civil liability in Law of Torts becomes conspicuous in motor accident cases.
OBJECTIVE OF THE LAW- The Motor Vehicles Act, 1988 replaces the Act of 1939 , which has been repealed
under section of 217 of the present Act. The Objective Clause accordingly provides “An Act to consolidate
and amend the law relating to motor vehicles. However, the objective of this Act has been outlined by the
Supreme Court in SYED MEHABOOB v. NEW INDIA ASSURANCE CO. LTD, (2011)11SCC625 as: “ Motor
vehicles Act is a beneficient legislation intended to place the claimant in the same position that he was
before the accident and to compensate him for his loss. Thus it should be interpreted liberally so as to
achieve the maximum benefit.”
IMPORTANT AMENDMENTS IN 2019- The Act has in fact been overhauled by amendments incorporated
in 2019. There are 93 sections of the Amending Act effecting major changes in the law, which covers all
areas related to the Motor Vehicles but we, as students of Law of Torts, shall refer to the amendments
which are important from our angle, which are as under:
1. TRAINING SCHOOLS FOR DRIVING LICENCES-Section 12 relates to “Licensing and regulation of schools
or establishments for imparting instruction in driving of motor vehicles. The 2019 amendment provides
for:
(i) Prescribing curriculum of the training module under section 9 of the Act shall be prescribed by the
Central Government and Rules made by the Cetral Govt. shall regulate such schools or establishments.
(ii) Any person otherwise eligible for a driving licence after completing training from such accredited
school or establishment for a particular type of vehicle shall become eligible to obtain a driving licence of
such type of motor vehicle.
2. NATIONAL REGISTER OF DRIVING LICENCES WITH UNIQUE NUMBER-
Section 25-A has been inserted in the Act to provide for maintaining a National Register of Driving Licences
by the Central Govt. The State Govts and their licensing authorities shall transmit all information of State
Registers of Driving Licences to the Central Govt in the prescribed form. Section 26 has also been amended
Maintenance of State Registers of Driving Licences as per the Format of the section and as prescribed by
the Central Govt. The Unique Driving Licence number under the National Register is essential for validity
of a new or renewed licence.
3. NATIONAL HIGHWAY AUTHORITY EMPOWERD TO ERECT OR REMOVE TRAFFIC SIGNS ON HIGHWAYS-
Under section 116, sub-section (1-A) has been inserted to authorize the National Highways Authority or
another agency by the Central Govt. for erecting or removing traffic signs under Schedule First for smooth
flow of traffic. Under Section 117 a Proviso has been inserted to obligate State Govt.and NH authority/
agency to give primacy to safety of road users and free flow of traffic while determining places of traffic
signs etc.
3. GOOD SAMARITANS AND THEIR PROTECTION- Section 134A has been inserted for the purpose.
Good Samaritan means the person who in good faith, voluntarily and without expecting any reward or
compensation provides emergency medical or non-medical care or assistance to the victim of accident on
the scene of accident or transports him to hospital.
4. COMPULSORY INSURANCE OF MOTOR VEHICLES UNDER THIRD PARTY RISKS-Section 146 provides that
no person other than a passenger shall use or cause to be used a motor vehicle in a public place unless
there is an policy of insurance complying with the requirements of chapter XI. If the vehicle is carrying or
meant to carry dangerous or hazardous goods, then an additional policy of insurance under the Public
Liability Act, 1991 is also mandatory. However, the vehicles owned and used by the Central or State
Governments are exempted unless these are connected with any commercial purpose.
5. SETTLEMENT BY INSURANCE COMPANY- Section 149 provides for procedure for such settlement. On
receiving information of the accident, the insurance company shall designate an officer to settle the claims
relating to such accident. Such officer may make offer for settlement before the Tribunal to the claimant
within 30 days. The claimant may accept such offer and if it satisfies the Tribunal,, it shall be deemed to
be settlement with its consent. The payment shall be made within 30 days of such settlement. And if
claimant rejects, the adjudication shall start before the Claims Tribunal.
6. DUTY OF INSURERS TO SATISFY JUDGENENTS AND AWARDSAGAINST PERSONS INSURED IN RESPECT OF
THIRD PARTY RISKS- The insurance policy shall cover such liability when it has notice of such award against
the insured persons.
7. RIGHT OF THIRD PARTY AGAINST INSURANCE COMPANY IF INSURED BECOMES INSOLVENT- Section 151
provides in this regard.
8. PAYING COMPENSATION BY CENTRAL GOVT> COMPENSATION IN HIT AND RUN CASES- Section 161
provides in this regard when death or grievous hurt has been caused of person(s). The amount of Rs. TWO
lakh in death and Rs. FIFITY thousand in case of grievous hurt is paid ( or higher amount fixed by the
Central Govt) under this Scheme as INTERIM COMPENSATION for immediate relief to the victim or his
family. However, on settlement or Award of the Tribunal, such amount shall be deducted to be restored
to the scheme. Section 164 provides for liability of insurance company or owner of vehicle to pay
compensation of 5 lakh rupees in case of death and 2.5 Lakh rupees in case of grievous hurt without
pleading for wrongful act or negligence of owner of vehicle.
9. LARGE SCALE INCREASE OF PENALTIES- The amount of fines for all kinds of violations under the Act
ranging from non-production of documents by the driver of the vehicle and going to the manufacturers
of defective vehicles has been increased many fold. Offences not specifically punishable under the Act
under section 177, now invite 5-time penalty from Rs. 100/- to 500/- for first offence and from Rs. 300/-
to 1500/- for a repeat. Similarly under sections 178- 201, there is an all-round multi-fold increase of
penalty. Community service as a punishment is another important amendment introduced in the Act. It
equally apply when the offender is a public servant like the official issuing licences or a police officer
violating the law.
10. DELEGATION OF AUTHORITY BY CENTRAL AND STATE GOVTS.- Section 215A provides that the Central
and State Govts. may delegate their authorities under the Act to any public servant or public authority.
11. CONSTITUTION OF NATIONAL ROAD SAFETY BOARD- Section 215B has been inserted for this purpose.
Such Board shall render advice to the Central Government or the State Govt. on all aspects of road safety
and traffic management.
12. LIABILTY WITHOUT FAULT IN CERTAIN CASES UNDER CHAPTER X ( Sections 140-144) has been deleted.
13. AND MANY MORE AMENDMENTS- Regarding manufacture of vehicles, control of Traffic and even
accidents and claims have been made by made by the Amendment Act of 2019 with the object to make
the law people-friendly and effectively enforceable.
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Q. 15. DISCUSS BRIEFLY THE PROVISIONS OF MOTOR VEHICLES ACT RELATING TO GETTING CLAIMS IN
ACCIDENT CASES.
INTRODUCTION- Motor Vehicles Act is a beneficial legislation, aimed at providing relief to the victims of
accident cases. The law makes every effort to help the victim or his family (in case of his death in the
accident) an assured compensation that too within the shortest possible time. For the purpose, the Act
makes arrangement of redressal through a Tribunal. Even otherwise, there is a provision of Promoting
Settlement between the parties. In the rising Hit and Run cases, the provision has been made for
immediate compensation by the Board constituted by the Central Government with its disbursal
arrangement by the State Governments even at the local levels. This is so in cases where the accident
results in death or grievous hurt of the victim. To ensure adequate compensations, the Act provides for
Minimum amount of compensation payable, and also payment of expenditure of medical treatment. It
protects the persons who come forward to help the victim by providing him help in medical treatment or
taking to the hospital. Since the law is complete in dealing with all matters pertaining to motor vehicles,
it also provides for manufacturing of safe vehicles, driving by trained persons, provision of traffic rules and
their implementation etc so that the possible accidents may be avoided. Therefore, the law is both
preventive and remedial in dealing with motor accidents resulting in loss of body or property of the victims
of such accidents.
PROCEDURE FOR CLAIMS UNDER MVACT-
The Act of 1988, after amendments upto 2019 provides under Chapter XII as under:
1. CLAIMS TRIBUNAL COMPETENT TO ENTERTAIN CASES- Section 165 provides that the State Government
by official notification may constitute one or more Motor Accidents Claims Tribunals with territorial areas
of their jurisdiction for adjudicating the claims of compensation.
Composition and Qualification of Claims Tribunal- Section 165(2) provides that the Claims Tribunal shall
consist of such number of Members as the State Govt thinks fit. In case of more members, one of them
will be the Chairman.
To be eligible for appointment as Member of the Claims Tribunal, the qualifications required are:
(i) Presently serving or retired Judge of High Court, or
(ii) Working or retired District Judge, or
(iii) Qualified to be appointed as High Court Judge or District Judge.
2. NATURE OF CASES- Section 165(1) itself clarifies that all cases of Motor accidents where death or bodily
injury is caused to any person or persons arising out of use of motor vehicle; or where damage is caused
to any property of third party ; or both bodily injury or damage of property. All such cases can be heard
and adjudicated by the Claims Tribunal.
3. MAKING OF APPLICATION- The Claim Application shall be filed under section 166.
WHO CAN FILE? Any of the following persons can file application:
(i) Person who has sustained injury; or
(ii) The owner of the property that has been damaged; or
(iii) The legal representative or representative of the victim whose death has been caused; or
(iv) Duly authorized agent of the person injured/ legal representative(s).
In case of more legal representatives, one of them can also file the application on their behalf. The other
representatives of deceased will be made respondents.
LIMITATION- Section 166(3) provides 6 months from the occurrence of accident as limitation period for
making application before TRIBUNAL.
4. NO APPLICATION IF COMPENSATION RECEIVED UNDER SECTION 164- Second Proviso to section 166
makes this provision.
WHAT IS S. 164 COMPENSATION?
As an overriding provision, the section makes the owner of vehicle to pay Rs. Five lakh compensation in
case of death and Rs. 2.5 Lakh in case of grievous hurt without pleading any wrongful act, negligence or
default of the owner of the vehicle or any other person. It is in fact NO FAULT LIABILITY which as a rule
has been deleted under chapter X.
Such compensation is received under the procedure prescribed under section 149. It is settlement it is
settlement by the company through its officer on receiving information of the accident.
TERRITORIAL JURISDICTION- For filing application is jurisdiction of the Claims Tribunal where the claimant
resides or carries on business or where defendant resides.
DEEMED APPLICATION- Sub-section (4) of section 166 now provides that the Claims Tribunal shall treat
any reprt of accidents forwarded to it under section 159 ( by the police officer investigating the case) as
an application for compensation.
OPTION FOR CLAIM UNDER WORKMEN’s (NOW EMPLOYEES’) COMENSATION ACT-Section 167 provides
in this regard giving option to the claimant to receive compensation under either of the two laws but not
under both of them.
5. PROCEDURE BEFORE THE TRIBUNAL- Section 169 provides that the procedure shall be summary
procedure and as given under the Rules. The Tribunal has all powers of the Civil Court. Section 168
provides as under:
 (i) Notice to the Insurer- After receiving application u/s 166, the Claims Tribunal shall give notice to the
Insurer (Insurance Company).
(ii) Giving Hearing to Parties- The insurer and other parties to be given opportunity of being heard.
(iii) Inquiry into the Claim/ Claims- The Claims Tribunal shall inquire into the merits of the Claim or each
of the Claims (If more).
(iv) Award of Compensation- The Tribunal may determine the Award determining the amount of
compensation which appears it to be just. The Award shall to specify the persons to whom compensation
shall be paid, who shall pay the amount i.ee. insurer or owner or driver of the vehicle met with accident
or by all of them.
WHAT IS JUST COMPENSATION?- The Courts have made clear-
(a) It can be more/less than the amount claimed.. In Panna Singh v.Himangshee Karmakar, AIR 1997
Gauhati 112- it is proportionate to injuries caused. The Tribunal cannot go by the ready reckoner.
(b) It is not a Windfall or even Pittance- In K SURESH V NEW INDIA ASSURANCE,2012(10)SCALE 512, it was
held it is only just compensation as a right under the law- not a bonanza or windfall or not a pittance. It is
challenging for the Court to determine Just Compensation. It would involve some guesswork as there
cannot be ant mathematical exactitude or a precise formula.
(v) INTEREST- S. 171 provides the simple interest at the rate specified in the Award shall also be payable
from the date mentioned (not before date of making the claim).
(vii) Award of Compensatory Costs- S. 172 further provides if insurance policy is void or claim is false, the
Tribunal may order payment of compensatory costs.
(viii) Amount Paid under section 161- If it was a a hit and run case causing death or grievous hurt, the
amount paid by the Central Govt ( 5/2.5 Lacs) to be deducted and refunded.
(ix) Copies of Award within 15 days- or before it.
(x) Depositing Amount within 30 days- Under S. 168(3), the person concerned shall deposit the amount of
Award as per direction within 30 days from the date of announcing the Award by the Claims Tribunal.
6. APPEALs- There is a provision for filing appeal by any person aggrieved by orders of the Claims Tribunal
u/s 173. The Appeal lies before the High Court.
Limitation- Appeal can be filed within 90 days from the date of Award. However, for a sufficient cause,
High Court may entertain after 90 days.
Amount depositing before Appeal- The First Proviso of the section provides that before filing the Appeal
50% of the amount of compensation or 25 thousand rupees (which ever less) will have to be deposited as
per the direction of the High Court before filing the Appeal.
NO APPEAL IF LESS THAN ONE LAC COMPENSATION- Section 173(2) provides for it.
Conclusion- The procedure of claiming compensation under the Motor Vehicles Act is simple, less time
consuming and balancing for both the parties- the claimant as well as the tort feasorr.
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