KIIT LAW SCHOOL

KIIT University, Bhubaneswar-751024

READING MATERIAL
2023

LAW OF TORTS, MOTOR VEHICLE ACCIDENTS

AND CONSUMER PROTECTION LAWS
LW 2021

SEMESTER III
B.A. LLB /B.B.A.LLB /B.SC. LLB
 MODULE -I
DEFINITION AND NATURE OF THE LAW OF TORT AND LIABILITY FOR THE
WRONG COMMITTED BY OTHER PERSON

NATURE AND DEFINITION OF TORT

The term tort is the French equivalent of the English word wrong and of the Roman Law
term delict. It was introduced into the English law by Norman jurists. The word tort is
derived from the Latin term tortum –‘to twist’, and implies conduct which is twisted or
tortious. It includes that conduct which is not straight or lawful, but, on the other hand,
twisted, crooked or unlawful.

To provide a workable definition in general terms, a tort may be defined as a civil wrong
independent of contract for which the appropriate remedy is an action for unliquidated
damages. This branch of law consists of various 'torts' or wrongful acts whereby the
wrongdoer violates some legal right vested in another person. The law imposes a duty to
respect the legal rights vested in the members of the society and the person making a breach
of that duty is said to have done the wrongful act.

As 'crime' is a wrongful act, which results from the breach of a duty recognized by criminal
law, a 'breach of contract' is the non-performance of a duty undertaken by a party to a
contract, similarly, 'tort' is a breach of duty recognized under the law of torts. For example,
violation of a duty to injure the reputation of someone else results in the tort of defamation,
violation of a duty not to interfere with the possession of land of another person result in the
tort of trespass to land and the violation of a duty not to defraud other results in the tort of
deceit.

Torts may be classified into those involving intention, those involving negligence, and the
wrongs of strict liability. They may also be classified into torts affecting the person (e.g.,
trespass, negligence), the family (wrongful death of a relative), reputation (libel and slander),
property (e.g., trespass to land or goods, nuisance, conversion), economic rights (deceit,
inducement of breach of contract, injurious falsehood), and certain miscellaneous torts such
as conspiracy. There are certain kinds of conduct, such as infringement of privacy, which are
not yet, but may come to be, recognized as actionable torts.

SOME DEFINITIONS OF TORT

Some of the important definitions, which indicate the nature of this branch of law, are as
under:
1. 'Tort means a civil wrong which is not exclusively a breach of contract or breach of
trust"—S. 2(m), the Limitation Act, 1963.
2. "It is a civil wrong for which the remedy is a common law action for unliquidated damages
and which is not exclusively the breach of a contract or the breach of a trust or other merely
equitable obligation." —Salmond.
3. "Tortious Liability arises from the breach of a duty primarily fixed by the law : this duty is
towards persons generally and its breach is redressable by an action for unliquidated
damages."—Winfield.
4. "It is an infringement of a right in rem of a private individual giving a right of
compensation at the suit of the injured party."—Fraser.
5. “Every tort is an act or omission (not being merely the breach of a duty arising out of a
personal relation, or undertaken by contract) which is related to harm (whether there be
measurable actual damage or not), suffered by a determinate person."—Pollock.

The basic idea which is indicated by these definitions is—Firstly, tort is a civil wrong, and
secondly, every civil wrong is not a tort. There are other civil wrongs also, the important of
which are a breach of contract and breach of trust.

Tort in India is based on the principles of equity, justice, and good conscience. The law of
torts is based on the principles of ‘common law’ which is mainly the English law of torts. The
application of the law of tort is an applied selectively in Indian courts keeping in mind if it
suits the circumstances of Indian society.

TORTS v. CRIME
A tort is also widely different from a crime. First, a tort is an infringement or privation of the
private or civil rights belonging to individuals considered as individuals; whereas a crime is a
breach of public rights and duties which affect the whole community considered as a
community. Secondly, in tort, the wrongdoer has to compensate the injured party: whereas, in
crime, he is punished by the State in the interests of society. Thirdly, in tort, the act ion is
brought by the injured party: in crime, the proceedings are conducted in the name of the State
and the guilty person is punished by the State. Criminal Courts are authorized within certain
limits and in certain circumstances to order payment of a sum as compensation to the person
injured out of the fine imposed on the offender. The compensation so awarded resembles the
award of unliquidated damages in a tort action but there is a marked difference. The award of
compensation in a criminal prosecution is ancillary to the primary purpose of punishing the
offender but in a tort act ion generally it is the main purpose. Only exemplary damages
allowed in a tort action are punitive in nature and one of the reasons for severely restricting
the categories of cases in which they can be awarded is that they import a criminal element in
civil law without proper safeguards.

A crime has to be distinguished from a tort or a civil wrong. The distinction consists in the
nature of the sanction that is attached to each form of liability. In the case of a crime, the
sanction is in the form of punishment while in the case of a tort or a civil wrong the sanction
is in the form of damages or compensation to the person injured. Primarily, the purpose of
punishment is deterrence. The purpose of compensation, however, is recompense. There is,
however, a similarity between tort and crime at the primary level. In criminal law also the
primary duty not to commit an offence for example murder like any primary duty in tort is in
rem and is imposed by the law.

TORT CRIME
1. It is a private wrong i.e., an infringement 1. It is a public wrong i.e., a wrong against
of the private or civil right of an individual. the public at large or wrong against the
It is comparatively less serious and labelled State, even though the victim is an
as civil wrong. For example, obstruction individual. It is a more serious wrong, for
outside a particular house is a tort. example, an obstruction in the middle of a
public road is a crime.

2. Law of torts is uncodified, however, 2. Law of crimes is codified (e.g., Indian

there is limitation period for filing of suits. Penal Code, Criminal Procedure Code) and
there is no bar of limitation of prosecution in
crime.
3.The rules applicable in a case of tort are 3. In an action for the offence of defamation,
generally different from those in the case of the defense of truth can be taken if the
crime. For example, in the case of tortuous publication was made for public good.
liability for the wrong of defamation, truth
is in itself a defense.
4. In tort, intention of the wrongdoer is not 4. In a crime, intention of the wrongdoer is
crucial in all cases (e.g., negligence). usually crucial in determining his liability.
Further, a ‘strict’ liability makes the An ‘accidental’ crime entails lesser or no
defendant liable for accidental harms punishment. Motive in crime is not so
caused without any intention and crucial.
negligence on his part. In other words,
sometimes the law recognizes ‘no fault'
liability.
5. The suit has to be filed by the injured 5. The criminal proceedings are not brought
party as plaintiff and by none else. Parties by the injured party but by the State. Except
may enter into a compromise and the suit in certain exceptional cases, the law does not
may be withdrawn. permit a settlement in criminal cases.

6. Damages or compensation to the injured 6. The wrongdoer is punished so as to deter

party to make good the loss suffered by him and other potential offenders from
him, is the most common remedy of a tort. committing wrongs. In certain exceptional
cases e.g., Sec. 357, Cr.P.C., provision for
compensation also provided for.
7. Detention, conversion, wrongful 7. Dacoity, murder, forgery, etc. are purely
dismissal, etc. are purely civil wrongs i.e., criminal wrongs i.e., crimes.
torts.

Similarities
1. In both, there is violation of rights in rem, the rights and duties are fixed by law
(irrespective of the consent of the parties). Injunction may be granted in both.
2. There are various wrongs, which find their place both under criminal law and law of torts.
Examples are assault, defamation, negligence, nuisance and conspiracy. In such cases, for
the purpose of civil liability, the rules of law of torts will be applicable and for the
 purpose of criminal liability the rules of criminal law will apply.
It is possible that the same act done by a person may result in two wrongs, a crime as well
as a tort, at the same time. The civil and criminal remedies in such a case are not
alternative but they are concurrent. For instance, if Z digs a ditch on public road causing
inconvenience to public, Z has committed an offence of public nuisance. If Y, a passerby,
falls into that ditch and thereby gets injured, Z’s act also becomes a tort of private
nuisance. Z will be punished under criminal law and also be liable to compensate Y under
law of torts.

BASIS OF TORTIOUS LIABILITY

In general, a tort consists in some act done by the defendant whereby he has without just
cause or excuse caused some form of harm to the plaintiff.
To constitute a tort or civil injury:
(1) there must be a wrongful act committed by a person;
(2) the wrongful act must give rise to legal damage or actual damage; and
(3) the wrongful act must be of such a nature as to give rise to a legal remedy in the
form of an action for damages.

1. Act or Omission
In order to make a person liable for a tort, he must have done some act which he was not
expected to do, or, he must have omitted to do something which he was supposed to do.
Either a positive wrongful act or an omission which is illegally made, will make a person
liable. For example, A commits the act of trespasser publishes a statement defaming another
person, or wrongfully detains another person, he can be made liable for trespass, defamation
or false imprisonment, as the case may be.

Similarly, when there is a legal duty to do some act and a person fails to perform that duty, he
can be made liable for such omission. For example, if a corporation, which maintains a public
park, fails to put proper fencing to keep the children away from a poisonous tree and a child
pluck and eats the fruits of the poisonous tree and dies, the Corporation would be liable for
such omission.

It may be noted that the wrongful act or a wrongful omission must be one recognized by law.
If there is a mere moral or social wrong, there cannot be a liability for the same. For example,
if somebody fails to help a starving man or save a drowning child, it is only a moral wrong
and, therefore, no liability can arise for that unless it can be proved that there was a legal duty
to help the starving man or save the drowning child.

2. Legal Damage
In order to be successful in an action for tort, the plaintiff has to prove that there has been a
legal damage caused to him. In other words, it has got to be proved that there was a wrongful
act—an act or omission— causing breach of a legal duty or the violation of a legal right
vested in the plaintiff. Unless there has been violation of a legal right, there can be no action
under law of torts.

If there has been violation of a legal right, the same is actionable whether, as a consequence
thereof, the plaintiff has suffered any loss or not. This is expressed by the maxim ‘Injuria sine
damno’. Injuria means infringement of a right conferred by law on the plaintiff or an
unauthorized interference, howsoever trivial, with the plaintiff's right. Damnum means
substantial harm, loss or damage in respect of money, comfort, health or the like. The term
'sine' means without. Thus, when there has been injuria or the violation of a legal right and
the same has not been coupled with a damnum or harm to the plaintiff, the plaintiff can still
go to the court of law because no Violation of a legal right should go unredressed.

Since what is actionable is the violation of a legal right, it therefore follows that when there is
no violation of a legal right, no action can lie in a court of law even though the defendant's
act has caused some loss or harm or damage to the plaintiff. This is expressed by the maxim
'Damnum sine injuria'. It means that a damage without the violation of a legal right is not
actionable in a court of law.

The reason for the same is that if the interference in the rights of another person is not
unlawful or unauthorized but a necessary consequence of the exercise of his own lawful
rights by the defendant, no action should lie. Thus, the test to know whether the defendant
should or should not be liable is not whether the plaintiff has suffered any loss or not but the
real test is whether any lawful right vested in the plaintiff, has been violated or not.

Injuria sine damno

Injuria sine damno means violation of a legal right without causing any harm, loss or damage
to the plaintiff. There are two kinds of torts:
Firstly, those torts which are actionable per se, i.e., actionable without the proof of
any damage or loss. For instance, trespass to land is actionable even though no
damage has been caused as a result of the trespass.
Secondly, the torts which are actionable only on the proof of some damage caused by
an act.

Injuria sine damno covers the first of the above stated cases. In such cases, there is no need to
prove that as a consequence of an act, the plaintiff has suffered any harm. For a successful
action, the only thing which has to be proved is that the plaintiff's legal right has been
violated, i.e., there is injuria.

In the leading case of Ashby v. White, [(1703) 2 Ld. Raym.938], the defendant, a returning
officer, wrongfully refused to register a duly tendered vote of the plaintiff, a legally qualified
voter, at a parliamentary election and the candidate for whom the vote was tendered was
elected, and no loss was suffered by the rejection of the vote, nevertheless it was held that an
action lay. In this case the returning officer had acted maliciously. Where, therefore, a
returning officer, without any malice or any improper motive, in exercising his judgment,
honestly refused to receive the vote of a person entitled to vote at an election, it was held that
no act ion lay. If a person entitled to be upon the electoral roll is wrongfully omitted from
such roll so as to be deprived of his right to vote he suffers a legal wrong for which an action
lies. An action for damages will also lie if a citizen is deprived of his right to vote by a law
which is unconstitutional law by reason of offending right to equality.

In Bhim Singh v. State of Jammu and Kashmir [AIR 1986 SC 494], the petitioner, an
M.L.A. of J & K. Assembly, was wrongfully detained by the police while he was going to
attend the Assembly session. He was not produced before the Magistrate within requisite
period. As a consequence of this, the member was deprived of his constitutional right to
attend the Assembly session. There was also violation of fundamental right to personal liberty
guaranteed under Article 21 of the Constitution. By the time the petition was decided by the
Supreme Court, Bhim Singh had been released, but by way of consequential relief, exemplary
damages amounting to Rs. 50,000 were awarded to him.

Damnum sine injuria

It means damage which is not coupled with an unauthorized interference with the plaintiff's
lawful right. Causing of damage, however substantial, to another person is not actionable in
law unless there is also violation of a legal right of the plaintiff. This is generally so when the
exercise of legal right by one result in consequential harm to the other.

The Gloucester Grammar School Case [(1410) Y.B. 11 hen. IV of 47] explains the point.
There the defendant, a schoolmaster, set up a rival school to that of the plaintiffs. Because of
the competition, the plaintiffs had to reduce their fees from 40 pence to 12 pence per scholar
per quarter. It was held that the plaintiffs had no remedy for the loss thus suffered by them.
Hankford J. said: Damnum may be abseque injuria (without infringement of a right), as if I
have a mill and my neighbor builds another mill whereby the profit of my mill is diminished,
I shall have no action against him, although I am damaged.....but if a miller disturbs the water
from going to my mill, or does any nuisance of the like sort, I shall have such action as the
law gives".

In Mayor of Bradford Corporation v. Pickles [(1895) AC 587], the defendant was annoyed
when Bradford Corporation refused to purchase his land in connection with the scheme of
water supply for the inhabitants of the town. In the revenge the defendant sank a shaft over
his land intentionally and intercepted the underground water which was flowing to the
reservoir of the plaintiffs. Held that the plaintiffs have no cause since the defendant was
exercising his lawful right although the motive was to coerce the plaintiff to buy his land.

In Town Area Committee v. Prabhu Dayal [AIR 1975 All. 132], the court held that a legal
act, though motivated by malice, will not make the defendant liable. The plaintiff can get
compensation only if he proves to have suffered injury because of an illegal act of the
defendant. The plaintiff constructed 16 shops on the old foundations of a building, without
giving a notice of intention to erect a building under section 178 of the Uttar. Pradesh
Municipalities Act and without obtaining necessary sanction required under section 108 of
that Act. The defendants (Town Area Committee) demolished this construction. In an action
against the defendant to claim compensation for the demolition the plaintiff alleged that the
action of the defendants was illegal as it was malafide, the municipal commissioner being an
enemy of his. It was held that the defendants were not liable as no "injuria” (violation of a
legal right) could be proved because if a person constructs a building illegally, the demolition
of such building by the municipal authorities would not amount to causing "injuria" to the
owner of the property.

In Usha Ben v. Bhagya Laxmi Chitra Mandir [AIR 1978 Guj 13], the plaintiffs sued for a
permanent injunction against the defendants to restrain them from exhibiting the film named
"Jai Santoshi Maa". It was contended that the film hurt the religious feelings of the plaintiff
in so far as Goddesses Saraswati, Laxmi and Parvati were depicted as jealous and were
ridiculed. It was observed that hurt to religious feelings had not been recognized as a legal
wrong. Moreover, no person has a legal right to enforce his religious views on another or to
restrain another from doing a lawful act, merely because it did not fit in with the tenets of his
particular religion. Since there was no violation of a legal right, request of injunction was
rejected.

3. Legal Remedy
The law of torts is said to be a development of the maxim ubi jus ibi remedium (there is no
wrong without a remedy). Jus signifies here the legal authority to do or to demand something;
and remedium may be defined to be the right of act ion, or the means given by law, for the
recovery or assertion of a right. If a person has a right, “he must of necessity have a means to
vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and
indeed, it is a vain thing to imagine a right without a remedy; want of right and want of
remedy are reciprocal.”

The maxim means only that legal wrong and legal remedy are correlative terms; and it would
be more intelligibly and correctly stated, if it were reversed, so as to stand, “where there is no
legal remedy, there is no legal wrong.” The principle is that wherever a man has a right the
law should provide a remedy and the absence of a remedy is evidence but is not conclusive
that no right exists.

Right without a remedy is of no use. Right is a person’s capacity to compel another person to
do or to abstain from doing an act, and capacity to compel means legal capacity to compel.
Unless there is a legal remedy, there cannot be legal compulsion. Therefore, a right without a
remedy would be redundant. Therefore, right and remedy are correlated. If there is no right
there will be no remedy.

CAPACITY TO SUE AND BE SUED IN TORTS

Everybody has a right to sue and is subject to being sued, according to the basic rule of tort
law. However, this rule is not ironclad. There are exceptions to this basic norm due to
individual disability depending on specific laws and situations. There are some people who
cannot bring or receive a tort claim.

Those persons against whom any action of civil wrong is initiated or instituted may file a
civil suit for recovery against the person who has committed the same. The person who files
the suit shall be called Plaintiff and the one who has the right to defend himself shall be
called, defendants. The term parties to torts includes everyone interested directly in the matter,
who have right to defend, control proceedings, or appeal in court. Anyone who does not have
these rights shall be a privy i.e., stranger to the case.

Special categories:
1. Convicts and persons in custody
For several offences covered by sections 126, 127, and 169 of the Indian Penal Code of 1860,
confiscation of property was a sanction in India up until 1921. However, this punishment has
since been eliminated. In India, a convict may therefore bring a tort claim for injuries to his
person or property, as per existing law.

2. Alien Enemy
Any individual, regardless of nationality, who resides in enemy territory or does business
there is considered an alien enemy. An alien enemy cannot bring a claim on his own behalf.
In India as per Section 83, Civil Procedure Code, 1908, Aliens who are living in India with
the Central Government's permission may file a lawsuit in any court that is otherwise
qualified to hear the case, just like they would if they were Indian citizens.

However, aliens who are living in India without the Central Government's permission or who
are living abroad may not file a lawsuit in any such court. Additionally, every individual who
resides in a foreign nation whose government is at war with India and does business there
without a license issued in that capacity by the Central Government is considered an alien
enemy resident abroad.

3. Married woman and husband

A married woman could not file a claim in England before to 1882 unless her husband also
joined the lawsuit as a plaintiff. Additionally, unless her husband was included as a defendant,
she could not be prosecuted for a tort that she had committed. Due to the rule that husband
and wife constitute one person in legal terms, neither she nor her husband may file a lawsuit
against the other for any tort committed by one against the other.

4. Bankrupt or insolvent
If an insolvent commits a tort, his culpability is not a debt that can be proven against him in
bankruptcy and is not released in bankruptcy. An insolvent may be sued for a crime he
committed before or after declaring bankruptcy, and if found guilty, the money awarded will
be considered a debt that may be proved in bankruptcy. However, a bankrupt or insolvent
person cannot bring a claim for damages relating to their property since, under English law,
all of their assets belong to the trustee in a bankruptcy, whereas in Indian law, they belong to
the official assignee or official receiver.

5. Corporation
Due to the nature of corporations, it is obvious that they cannot suffer human injuries.
However, corporations may bring claims for torts that cause damage to their property.
Corporations have distinct legal personality and they can be sued like any other legal person
in India. This can happen when any servant commits an act of civil wrong on behalf of the
corporation. Private corporations can sue and get sued for torts

6. Foreign Sovereign
The jurisdiction of Indian courts does not extend to the heads of any nation. Every sovereign
is exempt from the jurisdiction of every Court according to the fundamental element that to
do so would violate his genuine dignity, which is his total independence from all higher
authority. According to Section 86 of the Code of Civil Procedure from 1908, no ruler of a
sovereign State may be sued in any court that is otherwise authorized to hear the matter,
unless that ruler's government has provided its written agreement, which must be verified by
a secretary of that government.

7. Lunatic
When any action is committed by a lunatic person, he is not in his stable state of mind, such
person cannot be sued. However, if such person commits a crime when he is in a stable state
of mind (lucid) and can interpret the meaning or consequences of his actions, then he can be
sued.

8. Minor
The infant/ minor can be sued for the act committed by them as an adult. Thus, a minor can
be sued for assault, false imprisonment, libel, slander, fraud etc. but where intention,
knowledge or some other conditions of mind are essential ingredients of liability then in that
cases minor/ infant can be exempted due to their mental incapacity. In the latter case a
minor/infant cannot be sued.

MASS TORTS
'Mass Torts' can be explained as ‘such activity of the defendant, the harm caused by which is
wide and a large number or sector of society gets affected simultaneously'. In other words, we
can say that the cases of mass torts are somewhat different from those situations when only
one or two persons are harmed.

A mass tort is similar to a class action lawsuit in the sense that it represents the interests of a
large group of people against a common defendant. The key difference between mass torts
and class action lawsuits is that each plaintiff in a mass tort retains their own legal counsel.

This means they can pursue their own individual cases even though they are part of the larger
group lawsuit. As such, the compensation in mass tort cases can be higher since each plaintiff
is fighting for their own damages.

VICARIOUS LIABILITY
As Salmond observes, “In general, a person is responsible only for his own acts, but there are
exceptional cases in which the law imposes on him vicarious responsibility for the acts of
others, however, blameless himself.” Vicarious liability, or imputed liability, is a legal rule
that holds a person or company responsible for actions committed by others or by their
employees. Typically, it applies to those who are in control of people who cause harm to
victims.

Vicarious liability is a kind of ‘strict liability’, however, in vicarious liability the liability
arises because of the relationship between the principal and the wrongdoer, while in the case
of strict liability the liability arises out of the wrong itself.
Vicarious liability gives victims more potential defendants in a personal injury case. In many
situations, plaintiffs will pursue a case against the person directly responsible for hurting
them and others who are vicariously liable for the losses that occurred.

Liability arising out of special relationships:

(1) Master and Servant
A master is liable for the torts committed by his servant while acting in the course of his
employment. The servant is also liable. They are considered to be joint tort-feasors and their
liability is joint and several. The master’s liability arises when the following essentials are
present:
(i) The tort was committed by his servant;
(ii) The servant committed the tort while acting in the course of the employment.
The master’s liability arises only when both these conditions are satisfied.

In Morgan v. Incorporated Central Council of the Girls’ Friendly Society [(1936) 1 All ER
404], the plaintiff, while he was on a lawful visit to the defendant's premises, fell down from
an open lift shaft and got injured. The defendants had entrusted the job of keeping the lift safe
and in proper order to certain independent contractors. It was held that for this act of
negligence on the part of the independent contractors in not keeping the lift in safe condition,
the defendants could not be made liable.

In Mersey Docks and Harbour Board v. Coggins & Griffiths (Liverpool) Ltd. [(1946) 2 All
ER 345], a harbour board, who owned a number of mobile cranes each driven by a skilled
driver as a regular part of their business, let out a mobile crane along with a skilled driver to
certain stevedores for loading a ship. Due to the negligence of the driver, while loading a ship,
X was injured. The harbour board that was permanent employer was held liable. The
stevedores were held not liable because they had simply the power to tell the driver what
particular cargo was to be operated.

In Cassidy v. Ministry of Health [(1951) 2 KB 343], the hospital authorities were held liable
when, due to the negligence of the house surgeon and other staff, during post-operation
treatment, the plaintiff's hand was rendered useless. Referring to the liability of the hospital
authorities.

In Ilkiw v. Samuels [(1963) 1 WLR 991], the lorry driver employed by the defendants
permitted a stranger to drive the lorry. While the stranger was driving the lorry negligently an
accident was caused. It was held that the defendants were liable for the negligence of the
driver in permitting a stranger to drive the lorry.

(2) Principal and Agent

When the principal expressly or impliedly authorizes some act to be done he is liable for such
an act of the agent if the same has been in the course of performance of his duties as an agent.
The law attaches liability to a principal for the wrongful act of his agent, on the ground that it
is the principal who has selected the agent.

In Loyd v. Grace, Smith & Co., Mrs. Loyd [(1912) AC 716], who owned two cottages but
was not satisfied with the income therefrom, approached the office of Grace, Smith & Co., a
firm of solicitors, to consult them about the matter of her property. The managing clerk of the
company attended her and advised her to sell the two cottages and invest the money in a
better way. She was asked to sign two documents, which were supposed to be sale deeds. In
fact, the documents got signed were gift deeds in the name of the managing clerk himself. He
then disposed of the property and misappropriated the proceeds. He had acted solely for his
personal benefit and without the knowledge of his principal. It was held that since the agent
was acting in the course of his apparent or ostensible authority, the principal was liable for
the fraud.

(3) Partners of a firm

The relation of partners inter se is that of principal and agent, and each partner is, therefore,
liable to third persons for the neglect or fraud of his fellow-partner. If any one of the partners
commits any tort in the ordinary course of business of the firm all the other partners of the
firm are liable for that to the same extent as the guilty partner. The liability of each partner is
joint and several.

(4) State’s Liability

In England, under the Common Law, the king could not be sued in tort either for wrongs
actually authorized by it or committed by its servants in the course of their employment. The
individual wrongdoer was only personally responsible and he could not take the defense of
orders of the Crown or State necessity. The position has been entirely changed after the
passing of the Crown Proceedings Act, 1947, according to which the Crown is liable for a tort
committed by its servants just like a private master.

Unlike the Crown Proceedings Act, 1947, in India, we do not have any statutory provision so
far mentioning the liability of the State. Article 300 of the Constitution of India states as
under:
“The Government of India may sue and be sued by the name of Union of India and the
Government of a State may sue and be sued by the name of the State and may subject to any
provision which may be made by Act of Parliament or of the Legislature of such State, sue or
be sued in relation to their respective affairs in the like cases as the Dominion of India and
the corresponding provinces or the corresponding Indian States might have sued or been
sued if this Constitution had not been enacted.”

Article 300, thus, provides that the Union of India and the States can sue and be sued, but as
to the circumstances under which that can be done, it points to the position prevailing before
the commencement of the Constitution. The Government of India Act, 1935, also laid down a
similar provision. So did the Government of India Acts, 1915 and 1858. We have, therefore,
to see the position prevailing before 1858 when the administration was in the hands of East
India Company. The earliest enactments laid down that the Secretary of State for India could
be sued just as the East India Company. Thus, the liability of the State today is the same as
that of the East India Company in its time.

Doctrine of Sovereign Immunity

As regards immunity from tortuous liability, an important issue that has to be considered,
relates to position of the government. It is an area where constitutional history, constitutional
law, administrative law and the law of torts intermingle with each other.

Sovereign immunity is a legal doctrine by which the sovereign or state is given immunity
from civil suit, criminal prosecution and legal wrong committed by it. This doctrine gives
protection to the state. It is justification for wrongs committed by the state or its servants.
This principle is derived from the legal maxim “rex non potest peccare,” meaning “the king
can do no wrong.” The doctrine of sovereign immunity is based on the Common Law
principle that the King cannot commit any wrong and that he cannot be guilty of personal
negligence or misconduct, and as such cannot be responsible for the negligence or
misconduct of his servants.

The doctrine of ‘sovereign immunity’ implies that a State can claim immunity from law just
because it is sovereign. According to Justice Homes, a sovereign is exempt from suit not
because of any formal conception or obsolete theory but on the logical and practical ground
that there can be no legal right as against the authority that makes the law on which the right
depends.

However, in the present-day context, the doctrine of sovereign immunity has no relevance
because the concept of sovereignty itself has undergone a drastic change. In practice, the
importance of the immunity has been drastically reduced by reason of the fact that where a
fundamental right is violated by the State or its officers or agencies, the immunity is not
recognized, as the matter is then taken as governed, not by the principles applicable to torts in
general, but by doctrines emanating from fundamental principles of constitutional law- a
region not haunted by the ghosts of colonial legal doctrines.

In Peninsular Steam Navigation Co. v Secretary of State, India [(1861) 5 Bom. H.C.R. App.
1], it was held that if the act was done in the exercise of sovereign functions the East India
Company would not have been liable, but if the function was a non-sovereign one it would
have been liable. In the above case, maintenance of the dockyard was considered to be a non-
sovereign function and, therefore, for the negligence of its employees the Government was
held liable.

In Smith v London & South Western Railway Co. [(1870) L.R. 6 C.R 14], the servants of a
Railway Co. negligently left trimmings of grass and hedges near a rail line. Sparks from an
engine set the material on fire. By a heavy wind the fire was carried to the nearby plaintiff’s
cottage, which was burnt. Since it was a case of negligence on the part of the Railway Co.,
they were held liable.

In State of Rajasthan v. Vidyawati [AIR 1962 SC 933], the plaintiff's husband died after
being knocked down by a government jeep car which was driven rashly and negligently by an
employee of the State of Rajasthan. At the time of the accident, the car was being taken from
the workshop to the Collector's bungalow for the Collector's use. In an action against the
State of Rajasthan, the State was held liable. The observations made by the Supreme Court
may also be noted. "In this connection, it has to be remembered that under the Constitution,
we have established a welfare State, whose functions are not confined only to maintaining
law and order, but extend to engaging in all activities including industry, public transport,
State trading to name only a few of them. In so far as the State activities have such wide
ramifications involving not only the use of sovereign powers but also its powers as employers
in so many public sectors, it is too much to claim that the State should be immune from the
consequences of tortious acts of its employees committed in the course of their employment
as such."

In Kasturi Lal Ralia Ram Jain v. State of U.P. [AIR 1965 SC 1039], the Supreme Court also
refused to hold the State liable for the act done by its servant in the exercise of statutory
duties. In this case, a partner of the firm of jewelers in Amritsar, Kasturi Lal Ralia Ram Jain,
happened to go to Meerut (in U.P.) reaching there by a train in the midnight. He was carrying
a lot of gold and silver with him. The police constables, on the round in the market through
which he was passing, suspected that he was in the possession of stolen property. He was
taken to the police station. He, with his belongings, was kept in the police custody under the
provisions of the Cr. P.C. Next day, he was released on bail and sometime thereafter the
silver was returned to him. The gold was kept in the police Malkhana, and the same was then
misappropriated by the Head Constable, Mohammad Amir, who thereafter fled to Pakistan.
The plaintiff brought an action against the State of U.P. claiming either the return of the 103
tolas of gold, or compensation of Rs. 11,000/- in lieu thereof.

In Rudal Shah v State of Bihar [AIR 1983 SC 1086], the State was held liable for wrongful
detention and monetary compensation was awarded. A ‘service’ (facility) provided to a
‘consumer’ within the meaning of the Consumer Protection Act, 1986 is not a ‘sovereign’
function (Lucknow Development Authority v M.K. Gupta AIR 1994 SC 787).

In Saheli v. Commissioner of Police, Delhi [(1990) 1 SCC 422], the death of a 9-year-old
boy was caused by beating and assault by a police officer. In the writ petition filed by the
Women's Civil Right Organization, known as SAHELI, the Supreme Court allowed damages
to the boy's mother.
INDEPENDENT AND JOINT TORTFEASORS
When two or more persons commit some tort against the same plaintiff, they may be either
independent tortfeasors or joint tortfeasors.

Independent Tortfeasors
When the acts of two or more persons, acting independently, concur to produce a single
damage, they are known as independent tortfeasors. There is no concerted action on the part
of independent tortfeasors. There is mere similarity of design on their part although they act
quite independently of one another. For example, two motorists driving negligently and
coming from the opposite direction collide and a pedestrian is crushed between the two cars,
these motorists are independent tortfeasors.

Joint Tortfeasors
Two or more persons are said to be joint tortfeasors when the wrongful act, which has
resulted in a single damage, was done by them, not independently of one another, but in
furtherance of a common design. When two or more persons are engaged in a common
pursuit and one of them in the course of and in furtherance of that commits a tort, both of
them will be considered as joint tortfeasors and liable as such.

In Brook v. Bool [(1928) 2 KB 578], A and B entered Z's premises to search for an escape of
gas. Each one of them, in turn, applied naked light to the gas pipe. A's application resulted in
an explosion, causing damage to Z's premises. In this case, even though the act of A alone
had caused the explosion, but both A and B were considered to be joint tortfeasors and thus
held liable for the damage.

JOINT AND SEVERAL LIABILITY

The liability of joint tortfeasors is joint and several. The plaintiff has a choice to sue anyone
of them, some of them or all of them, in an action. Each one of them can be made to pay the
full amount of compensation. Thus, for the wrong done by the agent, both the principal and
the agent are jointly and severally liable. Even though the actual wrongdoer is the agent, if
the plaintiff so elects, he may sue the principal for the whole of the damage. As against the
aggrieved party, the principal cannot take the defense that the actual wrongdoer was the agent,
although after making good the loss, the principal may hold the agent responsible to the
extent of his (agent's) fault. Similarly, for the wrongful act done by the servant, the master is
liable along with the servant as a joint tortfeasor and for the wrongful act of a partner, the
firm is liable therefor to the same extent as the guilty partner.

It is generally said that the doctrine of non-contribution was laid down in Merryweather v.
Nixon [(1799) 101 ER 1337]. In that case M and N conjointly destroyed the machinery which
belonged to R, eventually, R brought an action against both and obtained a claim of 840
pounds by way of the judgment delivered in his favor. The whole amount was levied on M,
who again sought contribution from N for half of the amount by filing a suit against him. The
court laid down that M could not recover. This was a landmark case where it was laid down
that, in common law, a wrongdoer cannot maintain an action for contribution against another
wrongdoer, even when the one seeking contribution would have satisfied the full claim of
damages. And this rule is popularly known as Merryweather v. Nixon Rule. This rule
however, was later abolished by introduction of a legislation.

Prior to the abolition of the rule of Merryweather v. Nixon, the courts in India had a
conflicting opinion regarding the applicability of the rule. There have been numerous cases
where the rule of Merryweather v. Nixon was followed in India. It was freely applied by the
courts where the parties knew or ought to have known that they were indulged in wrongdoing.
Considering present scenario, it can be said that the rule in Merryweather v. Nixon, which
does not comply with justice, equity and good conscience, which was further abolished by the
court of England and was rightly rejected from being applied in several courts in India.
 MODULE 2- NEGLIGENCE

NEGLIGENCE—AS A TORT AND AS A CRIME

According to Winfield and Jolowicz- Negligence is the breach of a legal duty to take care
which results in damage, undesired by the defendant to the plaintiff. In regular usage
Negligence denotes mere carelessness. In legal sense it signifies failure to exercise the
standard of care which the doer as a reasonable man should, by law, have exercised in the
circumstances.

There is a legal duty to take care where it was or should have been reasonably foreseeable
that failure to do so was likely to cause injury. Negligence is, accordingly, a mode in which
many kinds of harms may be caused, by not taking such adequate precautions as should have
been taken in the circumstances to avoid or prevent that harm, as contrasted with causing
such harm intentionally or deliberately. A man may, accordingly, cause harm negligently
though he was not careless but tried to be careful, if the care taken was such as the court
deems inadequate in the circumstances. One is responsible for the direct consequences of his
negligent acts where he is placed in such a position with regard to another that it is obvious
that if he does not use due care in his own conduct, he will cause injury to another.

The term 'negligence' is used for the purpose of fastening the defendant with liability under
the Civil Law and, at times, under the Criminal Law. It is the amount of damages incurred
which is determinative of the extent of liability in tort; but in criminal law it is not the amount
of damages but the amount and degree of the negligence that is determinative of liability.

Negligence takes innumerable forms, but the commonest forms are negligence causing
personal injuries or death, of which species are employers’ liability to an employee, the
liability of occupiers of land to visitors thereon, the liability of suppliers to consumers, of
persons doing work to their clients, of persons handling vehicles to other road-users, and so
on. The categories of negligence are not closed and new varieties such as negligence causing
economic loss may be recognized.

THEORIES OF NEGLIGENCE
There are two rival theories of the meaning of the term negligence. According to the one,
negligence is a state of mind (subjective theory); according to the other, it is merely a type of
conduct (objective theory).

1. Subjective theory: Negligence as state of mind

Negligence is a mode of committing certain torts e.g., negligently or carelessly committing
trespass, nuisance or defamation. Although negligence is not the same as thoughtlessness or
inadvertence, it is nevertheless essentially an attitude of indifference. Negligence essentially
consists in the mental attitude of undue indifference with respect to one’s conduct and its
consequences. A person is made liable on the ground of negligence because he does not
sufficiently desire to avoid a particular consequence - a harm. He is careless about the
consequence and does the act notwithstanding the risk that may ensue. According to Winfield,
‘as a mental element in tortious liability, negligence usually signifies total or partial
inadvertence of the defendant to his conduct and for its consequences’.
This is the subjective meaning of negligence advocated by the Austin, Salmond and Winfield.

2. Objective theory: Negligence as a type of conduct

Negligence is a conduct, not a state of mind. negligence is an objective fact. It is not a
particular state of mind or form of the mens rea at all, but a particular kind of conduct.
Negligence is a ‘breach of duty to take care’, and to care means to take precautions against
the harmful results of one’s actions and to refrain from unreasonably dangerous kinds of
conduct. To drive at night without lights is negligence, because to carry lights is a precaution
taken by all reasonable and prudent men for the avoidance of accidents. Pollock says that
‘negligence is the contrary of diligence, and no one describes diligence as a state of mind’.
This view obtains strong support from the law of tort, where it is clearly settled that
negligence means a failure to achieve the objective standard of the reasonable man. If the
defendant has failed to achieve this standard it is no defense for him to show that he was
anxious to avoid doing harm and took the utmost care of which he was capable. The same
seems to hold good in criminal law.

Actionable negligence consists in the neglect of the use of ordinary care or skill towards a
person to whom the defendant owes the duty of observing ordinary care or skill, by which
neglect the plaintiff has suffered injury, to his person or property.

ESSENTIALS OF NEGLIGENCE
In an action for negligence, the plaintiff has to prove following essentials:
 1. That the defendant owed a duty of care to the plaintiff.
2. That the defendant made a breach of the duty i.e., he failed to exercise due care and
skill.
3. That plaintiff suffered damage as a consequence thereof.

1. Duty of care to the plaintiff

The existence of a duty situation or a duty to take care is thus essential before a person can be
held liable negligence. It means a legal duty rather than a mere moral, religious or social duty.
The plaintiff has to establish that the defendant owed to him specific legal duty to take care,
of which he has made a breach. Normally the existence of a duty situation in a given case is
decided on the basis of existing precedents covering similar situations; but it is now well
accepted that new duty situations can be recognized.

A. Legal Duty
‘Duty of care’ means a legal duty rather than mere moral, religious or social duty. In
the absence of such legal duty, negligence in the popular sense has no legal
consequences. It is not sufficient to show that the defendant was careless; the plaintiff
has to establish that the defendant owed to the plaintiff a specific legal duty to take
care. It depends on each case whether a duty exists.

The duty of care is crucial in understanding the nature and scope of tort of negligence.
Negligence does not entail liability unless the law exacts a duty in the given
circumstances to observe care. Duty is an obligation recognized by law to avoid
conduct fraught with unreasonable risk of damage to others.

In Donoghue v. Stevenson [1932, AC 562], the appellant plaintiff drank a bottle of

ginger beer which was brought from a retailer by her friend. The bottle which was of
dark opaque glass in fact contained the decomposed body of snail (found out by her
when she had already consumed a part of the contents of the bottle). The court held
that the manufacturer of bottle was responsible for his negligence towards the plaintiff.
According to Lord Atkin: “A manufacturer of the products, which he sells in such a
form as to show that he intends them to reach the ultimate consumer in the form in
which they left him with no reasonable possibility of intermediate examination and
with the knowledge that the absence of the reasonable care in the preparation or
putting up of the products will result in an injury to consumers’ life or property, owes
a duty to the customer to take that reasonable care.” The House of Lords also rejected
the plea that there was no contractual relationship between the manufacturer and
plaintiff.

In Home Office v Dorset Yacht Co. Ltd. [1970 A.C. 1004], Lord Reid observed as
follows: “Donoghue v Stevenson may be regarded as a milestone, and the well-known
passage in Lord Atkin’s speech should, I think, be regarded as a statement of
principle”

B. Reasonable Foreseeability of Injury

To constitute tort of negligence it has to be established whether the defendant owes a
duty to the plaintiff or not depends on reasonable foreseeability of the injury to the
plaintiff. In other words, the duty to take care arises as soon as there is reasonable
probability of danger from the defendant’s conduct.

Standard of a reasonable man - A useful test to decide culpability is to determine

what a ‘reasonable man’ (i.e., a man of ordinary prudence or intelligence) would have
foreseen and behaved under the circumstances. The standard of foresight of the
reasonable man is an impersonal or objective test as it is independent of the
idiosyncrasies (patterns of behavior) of the particular person whose conduct is in
question. Some persons are very cautious while others fail to foresee or disregard
even the most obvious dangers. The reasonable man is presumed to be free both from
over-apprehension and from over-confidence. He is a person who is not in a hurry, but
is cool and collected and remembers to take precaution for his own safety even in an
emergency.

C. When the Defendant is Not Liable for Negligence

(i) When the injury to the plaintiff is not foreseeable, then the defendant is not liable.
In Glasgow Corporation. v. Muir [(1943) AC 448], the managers of the defendant
corporation tearooms permitted a picnic party to have their food in the tearoom. Two
members of the picnic party were carrying a big urn containing 6-9 gallons of tea to a
tearoom through a passage where some children were buying ice creams. Suddenly
one of the persons lost the grip of the handle of urn and six children, including the
plaintiff, were injured. Held that the managers could not anticipate such an event and,
therefore, she had no duty to take precautions. Hence neither she nor he corporation
could be held liable.

(ii) To establish negligence, it is not enough to prove that the injury was foreseeable,
but a reasonable likelihood of the injury has also to be shown. Reasonable
foreseeability does not mean remote possibility. If the possibility of danger emerging
is only a mere possibility which could never occur to the mind of a reasonable man,
then there is no negligence in not having taken extraordinary precautions.

In Bourhill v. Young [(1943) A.C. 92], a fishwife had just alighted from a tramcar. A
speeding motor cyclist passed on the other side of the tramcar and immediately
afterwards collided with a motor car and was killed. The fishwife did not see the
motor cyclist or the accident but she simply heard the noise of the collision. In
consequence she sustained nervous shock. Held that the cyclist was under no duty to
her to foresee that his negligence in driving at an excessive speed and colliding with a
car might result in injury to her for such a result could not reasonably and probably be
anticipated.

In Bolton v. Stone [(1951) A.C. 850], a person on road was injured by a ball hit by a
player on a cricket ground abutting on that highway. The ground had been used for 90
years and during the last 30 years the ball had been hit in the highway on about six
occasions but no one had been injured. Held, that the defendants (committee and
members of cricket club) were not negligent.

In Mcloughlin v. O’ Brian [(1982) 2 All ER 298], the plaintiff’s husband and three
children were involved in a road accident which was caused by the negligence of the
defendants. One child was killed and the husband and two other children were
severely injured. The plaintiff at the time of the accident was two miles away. After
being told of the accident, the plaintiff was taken to the hospital where she saw the
injured husband and children and heard about the death of her daughter. She suffered
severe nervous shock. The House of Lords allowed the plaintiff’s claim for damages
for nervous shock even though she was not at or near the scene of the accident at the
 time or shortly afterwards, the nervous shock suffered by her was a reasonably
foreseeable consequence of the defendant’s negligence. The court held that some
limitation should be placed upon the extent of admissible claims under the ‘nervous
shock’, as a ‘shock’ is capable of affecting a wide range of people. In comparison to
the close members of the family claiming for the shock, the ordinary bystanders’
claims are not recognized because the defendant cannot be expected to compensate
the world at large. As regards proximity to the accident, this must be close in both
time and space (to prove the fact and consequence of the defendant’s negligence).
However, to insist on direct and immediate sight or hearing would be impractical and
unjust and the one who, from close proximity, comes very soon upon the scene should
not be excluded (“aftermath” doctrine; by analogy with “rescue” situations). Normally,
a parent or a spouse could be regarded as being within the scope of foresight and duty.
The court, in this case, relied on the test of ‘reasonable foreseeability’.

2. Breach of Duty
After the plaintiff has shown that defendant owed a duty to him, the plaintiff to succeed in a
claim for negligence, has next to show that the defendant was in breach of this duty. It means
not taking due care which is required in a particular case.

The law requires taking of two points into to determine the standard of care required:
(a) The importance of the object to be attained- The law does not require greatest possible
care but the care required is that of a reasonable and prudent man under certain circumstances.
The amount of care, skill, diligence or the like, vary according to the particular case. The
prudent man, ordinarily, with regard to undertaking an act is the man who has acquired that
special skill to do the act which he undertakes; a man who has not acquired that special skill
is imprudent in undertaking to do the act, however careful he may be, and, however great his
skill in other things. The law permits taking chance of some measure of risks so that in public
interest various kinds of activities should go on.

(b) The magnitude of risk- The degree of care which a man is required to use in a particular
situation in order to avoid the imputation of negligence varies with the obviousness of the
risk. If the danger of doing injury to the person or property of another by the pursuance of a
certain line of conduct is great, the individual who proposes to pursue that particular course is
bound to use great care in order to avoid the foreseeable harm. On the other hand, if the
danger is slight only a slight amount of care is required. Thus, the driver of a vehicle has to
observe a greater care when he is passing through a school zone, or he finds a blind man, a
child or an old man. There is no absolute standard, but it may be said generally that the
degree of care required varies directly with the risk involved.

3. Damages
It is also necessary that the defendant’s breach of duty must cause damage to the plaintiff.
The plaintiff has also to show that the damage thus caused is not too remote a consequence of
the defendants’ negligence.

Proof of Negligence (res ipsa loquitur)

The general rule is that it is for the plaintiff to prove that the defendant was negligent. Initial
burden of making a prima facie case against defendant is on plaintiff, but once this onus is
discharged, it will be for the defendant to prove that the incident was the result of inevitable
accident or contributory negligence on the part of the plaintiff. Direct evidence of the
negligence, however, is not necessary and the same may be inferred from the circumstances
of the case. Though, as a general rule, the plaintiff has to discharge the burden of proving
negligence on the part of the defendant, there are, however, certain cases when the plaintiff
need not prove that and the inference of negligence is drawn from the facts.

There is a presumption of negligence according to the Latin maxim ‘res ipsa loquitur’ which
means the thing speaks for itself. In such a case it is sufficient for the plaintiff to prove
accident and nothing more. The defendant can, however, avoid his liability by disapproving
negligence on his part.

Certain things regarding this maxim have to be kept in mind, these include:
(1) The maxim is not a rule of law. It is a rule of evidence benefiting the plaintiff because the
true cause of accident may lie solely within the defendant’s knowledge.
(2) The maxim applies when- (i) the injurious agency was under the management or control
of the defendant, and (ii) the accident is such as in the ordinary course of thing, does not
happen if those who have the management use proper care.
(3) The maxim has no application when the accident is capable of two explanations. Also, it
does not apply when the facts are sufficiently known.
In Municipal Corporation of Delhi v. Subhagwati [AIR 1966 SC 1750] due to the collapse
of the Clock Tower situated opposite to Town Hall in the main bazar of Chandni Chowk,
Delhi, a number of persons died. The Clock Tower belonged to the Municipal Corporation of
Delhi. The supreme court explained the legal position as: “There is a special obligation on the
owner of the adjoining premises for the safety of the structures which he keeps beside the
highway. If these structures fall into disrepair so as to be of potential danger to the passerby
or to be a nuisance, the owner is liable to anyone using the highway that is injured by reason
of the disrepair. In such a case, the owner is legally responsible irrespective of whether the
danger is caused by patent or latent (hidden) defect.”

PROFESSIONAL LIABILITY FOR NEGLIGENCE

Every person who enters into a learned profession undertakes to bring to the exercise of it
such care and skill as becomes one belonging to that profession. In the law of negligence,
professionals such as lawyers, doctors, architects and others are included in the category of
persons professing some special skill or skilled persons generally. Any task which is required
to be performed with a special skill would generally be admitted or undertaken to be
performed only if the person possesses the requisite skill for performing that task. A surgeon
does not undertake that he will perform a cure; nor does he undertake to use the highest
possible degree of skill, as there may be persons of higher education and greater advantage
than himself; but he undertakes to bring a fair, reasonable, and competent degree of skill; and
in an action against him by a patient, the question is whether the injury complained of must
be referred to the want of a proper degree of skill and care in the defendant or not. In a suit
for damages the onus is upon the plaintiff to prove that the defendant was negligent and that
his negligence caused the injury of which the plaintiff complained.

Medical Negligence
A doctor when consulted by a patient owes him certain duties, viz. a duty of care in deciding
whether to undertake the case, a duty of care in deciding what treatment to give and a duty of
care in the administration of that treatment. A breach of any of those duties gives a right of
action for negligence to the patient.

In Bolam v Friern Hospital Management Committee [(1957) 2 All ER 118], the court
observed: “The test is the standard of the ordinary skilled man exercising and professing to
have that special skill. In the case of a medical man, negligence means failure to act in
accordance with the standards of reasonably competent medical men at the time.”

In Dr. Lakshman Balkrishna Joshi v Dr. Trimbak Bapu Godbole [AIR 1969 SC 128], the
appellant did not give anesthetic to the patient, a 20-year-old boy who had a fractured leg, but
contended himself with a single dose of morphine injection. He used excessive force in going
through this treatment, using three of his attendants for pulling the injured leg of the patient.
The treatment resulted in shock (as the patient was conscious during operation) causing the
death of the patient. The doctor was held guilty of negligence. The court held that a doctor
when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether
to undertake the case, a duty of care in deciding what treatment to give and a duty of care in
administration of that treatment. A breach of any of these duties gives a right of action for
negligence to the patient.

In A.H. Khodwa v State of Maharashtra, [1996 ACJ 505 SC], the doctor of a government
hospital, while performing sterilization operation of a lady patient, left a mop (towel) inside
her abdomen. The patient developed peritonitis resulting in her death. The Supreme Court
held that running a hospital was a “non-sovereign” function and the State was vicariously
liable for the same.

CONTRIBUTORY NEGLIGENCE
In certain circumstances a person who has suffered an injury will not be able to get damages
from another for the reason his own negligence has contributed to his injury; every person is
expected to take care reasonable care of himself.

According to John G. Fleming, “Negligence is conduct that fails to conform to the standards
required by law for safeguarding others (actionable negligence) against unreasonable risk of
injury.” Thus, when the plaintiff by his own want of care contributes to the damage caused by
the negligence or wrongful conduct of the defendant, he is considered to be guilty of
contributory negligence. It does not mean breach of a duty towards other party but it means
absence of due care on his part about his own safety.

For example, a pedestrian tries to cross the road all of a sudden and is hit by a moving vehicle,
he is guilty of contributory negligence. In this case, the defendant could completely escape
his liability for the accident, on account of the plaintiff’s negligence which contributed to his
injury.

According to the 'Last Opportunity' rule, when two persons are negligent, that one of them,
who had the later opportunity of avoiding the accident by ordinary care, should be liable for
the loss. The rule was applied in Davies v. Mann [(1882) 10 M &W 546]. In this case, the
plaintiff fettered the forefeet of his donkey and left it in a narrow highway. The defendant
was driving his wagon too fast and the donkey was run over and killed. In spite of his own
negligence, the plaintiff was entitled to claim compensation because the defendant had the
last opportunity to avoid the accident.

The rule of last opportunity was very unsatisfactory because the party whose act of
negligence was earlier, altogether escaped the responsibility and whose negligence was
subsequent, was made wholly liable even though the resulting damage was the product of the
negligence of both the parties

The rule was further defined in the case of British Columbia Electric Co. v Loach [(1916)1
AC 719], “a defendant, who had not in fact the last opportunity to avoid the accident, will
nevertheless be liable if he would have that opportunity but for his negligence”
(‘Constructive Last Opportunity’). In that case, a wagon-driver negligently brought the
wagon on the level crossing of the defendant’s tramline. A tram, coming too fast, caused the
collision. It was found that the tram was with defective brakes and if the brakes were in order,
then, in spite of the negligence on the part of the wagon’s driver, the tram could have been
stopped and accident averted. It was held that the defendants could not take the defense of
contributory negligence because they had the last opportunity to avoid the accident which
they had incapacitated themselves from availing because of their own negligence.

Rules to determine contributory negligence

Whether there is contributory negligence or not has to be determined by the following rules:
(1) What the plaintiff’s negligence means
Negligence of the plaintiff in relation to the defense of contributory negligence does not have
the same meaning as is assigned to it as a tort of negligence. Here plaintiff’s negligence does
not mean breach of duty towards the other party but it means absence of due care on his part
about his own safety.
(2) Plaintiff's negligence must be the operative cause of accident
It is not enough to show that the plaintiff did not take due care of his own safety. It has also to
be proved that it is his lack of care which contributed to the resulting damage. If the
defendant’s negligence would have caused the same damage even if the plaintiff had been
careful and the plaintiff’s negligence is not the operative cause of accident the defense of
contributory negligence cannot be pleaded.

(3) Test of prudent man

To be guilty of contributory negligence the plaintiff should not have acted like a prudent man.
If he has taken as much care as a prudent man has taken in a similar situation, there is no
contributory negligence.

(4) Doctrine of alternative danger

Sometimes the plaintiff is permitted to take risk where some dangerous situation has been
created by the defendant and in such a case, he will not be considered to be guilty of
contributory negligence. The judgment of the plaintiff should not, however, be rash.

(5) Presumption that others are careful/Statutory negligence

Such a presumption may be raised in many cases and the plaintiff not guarding against the act
of negligence of the defendant is not liable of contributory negligence in such a case. There
are many circumstances when the plaintiff can take for granted that the defendant will be
careful.

In the case of ‘statutory negligence’, the same having been arisen out of breach of a statutory
obligation, the defense of contributory negligence cannot be availed of by the wrongdoer
(defendant).

In Union of India v. Lalman Badri Prasad (AIR 1954 VP 17) there was collision between a
railway engine and a truck at level crossing resulting in the truck driver’s death. The driver
was without a valid license; he was held guilty of rash driving and contributory negligence.
But the railway authorities were found negligent in not keeping the level crossing properly
manned or by placing any caution board for the users of the road.

(6) Contributory negligence of children

What amounts to contributory negligence in the case of an adult may not be so in the case of
a child because a child may not be able to appreciate and understand certain dangers.

(7) Doctrine of identification (Imputed contributory negligence)

The defense of contributory negligence can be taken not only when the plaintiff himself has
been negligent but also when there is negligence on the part of his servant/agent. Thus, if I
am taking the service of an independent contractor and he has been negligent, I would be
identified with the independent contractor and met with the defense of contributory
negligence.

COMPOSITE NEGLIGENCE
When the negligence of two or more persons results in the same damage to a third person
there is said to be a ‘composite negligence’, and the persons responsible are known as
‘composite tort-feasors’. In case of contributory negligence there is negligence on the part of
the defendant as well as the plaintiff. Plaintiff’s own negligence contributes to harm which he
has suffered.

In the case of composite negligence, there is negligence of two or more persons towards the
plaintiff, and the plaintiff himself is not to be blamed. While contributory negligence is a
defense available to the defendant to overcome or reduce the liability in relation to the
plaintiff, the composite negligence is not a defense.

The liability of composite tortfeasors is joint and several. No tortfeasor is allowed to say that
the decree against him should be only to the extent of his fault. In other words, a composite
tortfeasor cannot plead that there should be apportionment of damages between various
tortfeasors. The judgment against the composite tortfeasors is for a single sum, and the
plaintiff can enforce the whole of his claim against any one of the defendants, if he so
chooses. It is no concern of his whether there is any duty of indemnity or contribution as
between the negligent persons. The defendant, who has paid more than his share of liability
may claim compensation from the other defendants.

Distinction between Composite and Contributory Negligence

In case of ‘contributory negligence’ there is negligence on the part of the defendant as well as
the plaintiff. Plaintiff’s own negligence contributes to the harm which he has suffered. In the
case of ‘composite negligence’ there is negligence of two or more persons towards the
plaintiff, and the plaintiff himself is not to be blamed. While contributory negligence is a
defense available to the defendant to overcome or reduce his liability in relation to the
plaintiff, the composite negligence is not a defense.

In case of ‘contributory negligence’ there is apportionment of damages according to the fault

of the plaintiff and the defendant. Plaintiff’s claim is reduced to the extent he himself is at
fault.
In case of ‘composite negligence’ there is no apportionment of damages between various
tortfeasors. There is a decree for the whole amount creating joint and several liability of all
the defendants. If, however, one tortfeasor is made to pay more than his share of the damages,
he can claim compensation from the other tortfeasors.
 Module 3
LIABILITIES BASED ON FAULT
Strict Liability
According to prevailing academic usage, strict liability is liability without wrongdoing. A
defendant subject to strict liability must pay damages irrespective of whether she has met, or
failed to meet, an applicable standard of conduct. Action that causes harm is all that is
required. By contrast, fault-based liability is conceived as liability predicated on some sort of
wrongdoing. The defendant’s liability rests on the defendant having been “at fault,” i.e.,
having failed to act as required.
The principle of strict liability has its origin in the leading case Ryland V. Fletcher. In this
case B, a mill owner employed independent contractors who were competent, to construct a
water reservoir for the purpose of his mill. In the course of construction the contractors came
across some old shafts and passages on B's land. They did not block them up, but completed
the construction. When the reservoir was filled with water, water gushed through the shaft
and flooded the mines of A. A sued B. The court held that B was liable on the ground of
"Strict liability". Blackburn J held we think that, the true rule of law is that the person who
for his own purposes brings on his land and collects 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 consequence of its escape".
This is the rule in Ryland V. Fletcher (1868) LR 3 HL 330. In this case, B was not negligent
although the contractors were negligent. Still under the rule of strict liability B was held
liable. Scope of the Rule: This decision laid down a new principle which became the subject
matter of great importance in later years. It is considered as a starting point of the liability
wider than what it was before the decision of the court. This rule has been extended to many
cases. Eg. Escape of fire, gas, explosives, Electricity, Oil, vibrations, Bad fumes etc. Here
escape is necessary otherwise there is no liability. To apply the rule there must be a personal
injury sustained by the plaintiff.
If the flooding is due to natural cause, as in the case of gravitation then the defendant will not
be liable. If a person grows poisonous trees and his neighbor’s horse happens to eat the leaves
over the compound and die, the defendant would be liable [Crowburst V. A.B. Board]. The
question is whether the things are dangerous or not. Justice Blackburn stated that if anything
is stored which is likely to do mischief then the liability arises. Normally water is not
dangerous. But, in Rylands V. Fletcher, that was the main thing for the injury. Hence, the
thing here need not be dangerous by itself.
The rule in Rylands v Fletcher
The mid-19th century saw the emergence of a new form of strict liability in the rule in
Rylands v Fletcher (1868), at a time when fault was beginning to dominate liability in tort.
Although Blackburn J and the House of Lords, in expounding the rule, claimed merely to be
stating a long-standing principle of the common law, most writers now agree that in fact new
law was being made. Several attempts have been made to explain the policy reasons which
lay behind the formulation of this new law, the most popularly accepted view being that the
judges, who were drawn from the landed gentry, resented the newly emerging wealth of the
industrial developers, and wished to burden them with strict liability for polluting adjoining
land. In fact, despite its claim to be a rule of strict liability, the rule in Rylands v Fletcher has
many attributes of fault liability today. As will be seen, the concept of reasonableness, akin to
that in nuisance, has crept into the law through the notion of ‘non-natural user’, and the rule
has not been developed in English law to provide protection against all hazardous activities,
and Scots law has rejected the rule altogether. In Australia the rule in Rylands v Fletcher has
been abandoned altogether in favour of referring everything to ‘proximity’.
Facts of the case
In Rylands v Fletcher (1868), the defendants employed independent contractors to construct a
reservoir on their land. When digging the reservoir, the contractors found mine workings on
the land, and failed to seal these properly before completing their work and filling the
reservoir with water. As a result, water flooded through the mine shafts into the claimant’s
mines on the adjoining property. The defendants could not be held liable in nuisance because
the flood was caused by a single act rather than a continuous state of affairs, nor could they
be liable for trespass because the entry onto the land was indirect. There was no evidence of
negligence on the part of the landowner and at that time negligence had not developed as an
independent tort. Ultimately, the judge stated a new principle of liability to cover this
situation.
The rule
Per Blackburn J:
The person who, for his own purposes, brings onto his land and collects and keeps there
something likely to do mischief if it escapes must keep it in at his peril and if he does not do
so, he is prima facie liable for all the damage which is the natural consequence of its escape.
To this the House of Lords added the additional requirement that there must be non-natural
user (that is, use) of the land for the rule to apply.
The person who brings onto his land
The law distinguishes between things which grow or occur naturally on the land, and those
which are accumulated there artificially by the defendant. Thus, rocks (Pontadawe RDC v
Moore Gwyn (1929)), thistles (Giles v Walker (1890)) and naturally collecting water do not
fall within the rule. However, vegetation deliberately planted, water collected in bulk or in
artificial configurations (Rickards v Lothian (1913)), and rocks or minerals, such as colliery
waste which are dug up and left on land by the defendant, do fall within the rule. In AG v
Corke (1933), it was held that gypsies are ‘things likely to do mischief if they escape’.
For his own purposes
It seems that the rule will only apply if the landowner brings something inherently dangerous
onto his land for his own purposes, rather than for those of another person, such as a tenant
(Rainham Chemical Works v Belvedere Fish Guano Co (1921)).
Non-natural user
The above examples explain why the House of Lords clarified the rule by stating that the use
of the land must be non-natural. However, the concept of non-natural user has proved a
useful policy device in later cases, by which the ambit of the rule has been restricted. For
example, in Read v Lyons (1947), it was argued that running a munitions factory in wartime
is natural use of land.
Lord Porter said:
All the circumstances of the time and place must be taken into consideration, so that what
might be regarded as dangerous or non-natural may vary according to those circumstances.
Much will depend upon the prevailing social and economic climate. In Musgrove v Pandelis
(1919), it was held that it was non-natural use to keep a car with petrol in its tank in a garage.
There is little doubt that a similar case would be decided differently today.
In Mason v Levy Auto Parts Ltd (1967), the defendants were liable under the rule in Rylands
v Fletcher when flammable material stored on their land ignited and fire spread to
neighbouring property. The storage of the materials amounted to non-natural use of the land.
The issue of non-natural user was also considered in the Cambridge Water case in which the
question of spillages of industrial effluent which affect ground water could not be regarded as
‘non-natural’ since chemical spillages were regarded as normal in the particular industry at
the time.
Something likely to do mischief
The substances which are collected must be inherently dangerous but this is open to
interpretation by the courts and has been subsumed into the ‘nonnatural user’ rule. Escape
There will be no liability in Rylands v Fletcher (1868) unless there is an escape of the
dangerous materials from the defendant’s land. In Read v Lyons Ltd (1947), the House of
Lords clarified the requirement of escape. The claimant was working in a munitions factory
during the Second World War when she was injured by an explosion. There did not appear to
have been negligence on the part of the employers, and as the explosion had occurred on their
own premises, there was no escape from their property. The result was that the claimant was
without a remedy. This case has been criticised for restricting the development of strict
liability for dangerous activities at a time when it could be argued that developing industry
was creating yet more hazardous uses of land. Indeed, in the USA, the rule of strict liability
has been so extended.
Who can sue under Rylands v Fletcher and for what damage
There is some authority to the effect that, in order to sue in Rylands v Fletcher (1868), the
claimant must have an interest in land in the area which is affected, but there are also many
cases in which the opposite view has been expressed. If the purpose of the rule is to control
and compensate for ultra-hazardous activity, then logically there is no need for the claimant
to have any interest in land. If however, the rule is merely an extension of nuisance, then
some interest in land would be expected as a basis of a claim.
In Rigby v Chief Constable of Northamptonshire (1985), the view was expressed that if there
is an escape from the defendant’s control on the highway onto the claimant’s land the rule in
Rylands v Fletcher can apply. This was approved in Crown River Cruises Ltd v Kimbolton
Fireworks Ltd and Another (1996), where the judge was of the opinion that there were strong
arguments to extend the same principle to accumulations in or on a vessel in a navigable river.

Exceptions: 1. Consent of the plaintiff: If the plaintiff has given his con sent the strict liability
rule will not apply but 'volenti non-fit injuria' applies. Hence, the defendant will not be liable.
In a leading case,Peter V. Prince of Wales Theatre, A took a lease of a theatre which had
been fixed with pipes with running water to be used in case of fire hazard. Due to frost, there
was leakage in the pipes resulting in the damage to the property of P. P sued D the owner.
The court held D not liable as there was consent of the plaintiff.
2. Common Benefit: If source of danger is for the common benefit of both the plaintiff and
the defendant, the defendant is not liable.
In Carstairs V. Taylor, B was in the first floor and A was in the ground floor as a tenant.
Water from the roof collected in a box and was discharged out through a pipe. A rat gnawed a
hole in the box and water leaked out and damaged the goods of A. Held B not liable. The
reason was that the arrangement was for the common benefit of both the parties.
3. Act of Stranger: If the escape of a thing is due to the act of stranger, the rule will not apply.
In Richards V. Lothian, a stranger deliberately blocked up the waste pipe of a lavatory fixed
in the premises of D. This caused flooding the premises of P. P sued D. Held, the defendant D
was not liable as the act was due to a stranger.
4. Statutory authority: Sometimes the law made by parliament or State Legislature excludes
strict liability.
In Green V. Cheisea Water Works Company, the Parliament had authorised the company to
lay the main pipes. The pipes burst flooding the premises of P. It was held that the company
was not liable, (of course, the act should not be due to the negligence of the defendant).
5. Act of God: It is a general defence and may be set up to establish that the escape was due
to some natural cause which was beyond the control of the defendant. 6. Default of the
Plaintiff: If the injury is due to the default of the plaintiff, then there is no compensation. In a
decided case, the plaintiff teased a Chimpanzee in a zoo and the animal caused injury by
biting the hand of the plaintiff. Held the plaintiff alone was responsible and the defendant was
not liable. The modern law has extended this principle of liability to various circumstances
and situations. Escape of sparks from railway engine, escape of fire from one house to
another have been dealt with at length. In recent years, the liability is extended to nuclear
installation were Radioactive substances cause hazards to individuals.

Absolute liability
In the case of M.C. Mehta v. Union of India, the doctrine of absolute liability was developed.
This case was a significant turning point in Indian legal history by establishing a new rule.
The rule stated that an enterprise is strictly liable to compensate all those harmed by an
accident when the enterprise is engaged in a hazardous or inherently dangerous activity and
harm results to anyone as a result of an accident in the operation of such hazardous or
inherently dangerous activity.
M.C. Mehta v. UOI (A.I.R. 1987 S.C. 1086): A company owned by Union Carbide was
established in Bhopal. The factory produced pesticides and similar goods. 40 tons of
hazardous gas were released by the plant overnight on December 2nd, 1984. (Methyl
isocyanate). The surrounding region of the facility turned into a gas chamber, resulting in
3000 fatalities and numerous injuries. All the plant's safety systems were determined to be
broken throughout the examination. The Supreme Court decided against adhering to the strict
liability rule because doing so would let these industries off the hook for the harm they
inflicted and the lives they lost.
The rule stated clearly that when an enterprise engages in a risky or inherently dangerous
activity and harm is caused to anyone as a result of an accident while carrying out such a
risky or inherently dangerous activity, the enterprise is strictly and absolutely liable to
compensate all parties affected by accident and such liability is not subject to any of the
exceptions that apply to the tortious principle of strict liability.
The following modifications in the existing Doctrine of Rylands vs. Fletcher led to the
following Doctrine of Absolute Liability that prevented the defendants from taking up any
defence against payment of compensation.
If an industry or enterprise is involved in any inherently dangerous activity, then for any
damage arising out of the conduction of that activity, the defendants (the owners of the
industry) will have no access to any defence or exception and will be absolutely liable to pay
compensation to the aggrieved parties. The enterprise will be held responsible for all possible
damages or consequences resulting from the activity. This will make such industries provide
safety equipments to its workers to prevent any mishap. Therefore, this will safeguard the
interests of the workers and will give them a refined, safe working atmosphere.
The element of escape which is an essential in strict liability may be ignored here as this
restricts the application of this Doctrine of Absolute Liability as often incidents may arise
where escape of the dangerous thing like poisonous fumes may not take place outside the
industry premises but may damage the workers inside. In this case, the workers’ right to
compensation will not be ignored. Therefore, the extent of this principle is to be applied in a
wider context ruling out the element of escape. In cases where strict liability applies,
compensation paid is according to the nature and quantum of damages caused but in cases of
absolute liability, compensation or damage to be paid is exemplary in nature. The amount
decided upon should be more than the damage caused as industrial hazardous accidents
generally causes mass death and destruction of property and environment.
A few cases where Absolute Liability was upheld:-
M.C. Mehta vs. Union of India(A.I.R. 1987 S.C. 1086):- The S.C. of India was dealing with
claims of leakage of oleum gas on the 4th and 6th December,1985 from one of the units of
Shriram Foods and Fertilizers Industries, Delhi. Due to this leakage, one advocate and several
others had died. An action was brought against the industry through a writ petition under
Article 32 of the Indian Constitution by way of a Public Interest Litigation (PIL). The judges
in this case refused to follow the Strict Liability Principle set by the English Laws and came
up with the Doctrine of Absolute Liability. The court then directed the organizations who had
filed the petitions to file suits against the industry in appropriate courts within a span of 2
months to demand compensation on behalf of the aggrieved victims.
Bhopal Gas Tragedy / Union Carbide Corporation v. Union of India((1991) 4 SCC 548):-
This doctrine was upheld in the infamous Bhopal Gas Tragedy which took place between the
intervening night of 2nd and 3rd December, 1984. Leakage of methyl-iso-cyanide (MIC)
poisonous gas from the Union Carbide Company in Bhopal, Madhya Pradesh led to a major
disaster and over three thousand people lost their lives. There was heavy loss to property,
flora and fauna. The effects were so grave that children in those areas are born with
deformities even today. A case was filed in the American New York District Court as the
Union Carbide Company in Bhopal was a branch of the U.S. based Union Carbide Company.
The case was dismissed there owing to no jurisdiction. The Government of India enacted the
Bhopal Gas Disaster (Processing of Claims) Act, 1985 and sued the company for damages on
behalf of the victims. The Court applying the principle of ‘Absolute Liability’ held the
company liable and ordered it to pay compensation to the victims.

Essentials of absolute liability

1. Hazardous Substance - The accountability for a substance escaping from someone's land
will only become apparent if the substance is hazardous or dangerous under the existing
criteria. The substance must be hazardous because it is damaging, hurtful, and potentially
destructive.
2. Escape - It must be proven that something that caused hurt or damage escaped the
defendant's property or property under their control to hold them accountable. In other words,
the dangerous material must escape to endanger a victim and establish absolute culpability.
However, escape inside the building might also be considered complete culpability.
3. Non-natural use of land - The facts of the case make it obvious. Water storage for
residential use can be natural, while large-scale water storage in reservoirs can be unnatural.
Growing trees or plants on land might be natural; cultivating toxic plants can be unnatural.
4. Mischief - To hold the offender accountable, the plaintiff must demonstrate that any
hazardous chemical has escaped and resulted in damages.

Module 4.
GENERAL DEFENSES FOR THE TORTIOUS LIABILITY
The concept of a defence. The term “defence” is used frequently by lawyers. It is deployed to
mean a great diversity of things and care is usually not taken to make it clear how it is being
used. In this chapter the word “defence” refers only to arguments offered by the defendant
that, if accepted, would permit the defendant to escape from liability even if all of the
elements of the tort in which the claimant sues are present. Put differently, defences, for the
purposes of this chapter, are rules that eliminate liability even if a complete cause of action
exists. Rules that do not prevent liability from arising but which merely affect the remedy to
which a successful claimant is entitled (such as the doctrines of contributory negligence and
mitigation of damage) are not counted as defences either. Such rules are fundamentally
different from liability-defeating rules and should be dealt with separately.
When the plaintiff brings an action against the defendant for a particular tort, with the
existence of all the essentials of that tort, the defendant would be liable for unliquidated
damages. However, even in such a case, the plaintiff can avoid his liability by taking the plea
of some defences that are available under Law of Torts.

1. Volenti non fit injuria:

It basically means the voluntary assumption of risk. When a person consents to the infliction
of harm upon himself, he has no remedy for that in tort making this an excellent defence for
the defendant against tortuous liability. Consent forms an essential part under this doctrine-
whether it is implied or expressed. It must not be obtained fraudulently (as held in R. v.
Williams).
This doctrine is based on the idea that “no man can enforce a right that he himself has waived
or voluntarily abandoned”. However, the harm caused must not be beyond what is consented
to.
To put it simply, the act that causes such damage must be in accordance with what was
consented by the plaintiff in order to avoid tortuous liability (as held in Lakshmi Raj v. Malar
Hospital Pvt. Ltd- Where the plaintiff had only consented to have her appendix removed but,
the surgeons had also removed the uterus from her body and therefore, went beyond the
extent to what was consented for and thus, were held liable for damages).
For this principle to apply two basic conditions should be met:
The plaintiff knew that the risk is mere. He, knowing the same, agreed to suffer the harm.
In Hall v. Brooklyn Racing Club [1933] 1 KB 205
The plaintiff was at a race where the race cars had collided causing one of them to fling into
the seating area and injuring the plaintiff. It was held that the plaintiff could not recover
damages as he had impliedly consented to such a risk when he came to attend the race.
Scienti non fit injuria (Mere knowledge does not imply consent):
In Smith v. Baker, the plaintiff was employed to cut rock. One of the cranes moving the cut
rocks to the other side was hovering over the plaintiff’s head. That’s when one of the rocks
fell and injured the plaintiff.
In this case, even though there was consent to the risk on the part of the plaintiff when he
took the job, it did not mean consent to get hit and injured by rocks (i.e. suffer the harm).
Therefore, the defendants were held liable.
Exceptions to Volenti non fit injuria:
Rescue cases:
These cases form an exception to the doctrine of Volenti non fit injuria- When the plaintiff
voluntarily agrees to the risk of damage while saving/rescuing somebody from an imminent
danger created by the wrongful act of the defendant, he cannot claim the defence of Volenti
non fit injuria
In Haynes v. Harwood (1935) 1 K B 146, a police officer took the risk to rescue children
from the oncoming horses and as a result, suffered some serious damage. In an action against
the owner of the horses, the defendant was held liable for damages as the defence of volenti
non fit injuria did not apply.
The Act authorized is itself unlawful:
If voluntary consent is given for an act that is not allowed under the law, the actor will be
liable for damages even if the consent was there. In this case, the defence of Volenti non fit
injuria will not be applicable.
Negligence:
The defense of Volenti non fit injuria is also not applicable in cases of negligence as the basic
constituent of the doctrine is consent- whether implied or expressed. But, if due to some act
of the defendant, the plaintiff is not left with ample time to choose to provide consent or not,
there can be no agreement to suffer harm from the said act.

2. Plaintiff’s own fault:

In case the plaintiff himself is the wrongdoer, it still does not make him not entitled to
recover the damages in case he suffers an injury “unless some unlawful act or conduct on his
own part is connected with the harm suffered by him as a consequence of the transaction”.
Therefore, a person trespassing on the defendant’s land and getting injured by an array of
spring guns set by the defendant (without notice or warning) would not hinder him from
claiming damages (as held in Bird v. Holbrook 130 eng. Rep. 911 (C.P. 1825).)

3. Act of third party

If the act of third person causes some harm to the plaintiff over which the defendant has no
control or the person is not defendant’s servant then he cannot be held liable under this rule.
If the act of third party is foreseeable then due care must be taken by the defendant.

4. Inevitable accident:
The word “accident” means an unexpected injury that could not have been foreseen or
avoided despite reasonable care or precaution taken by the defendant. The phrase “inevitable
accident” does not mean “absolutely inevitable”. But it means not avoidable by any such
precautions that as a reasonable man, doing such an act then and there could be expected to
take”.
In Stanley v. Powell (1891) 1 QB 86,
The plaintiff and the defendant had gone bird shooting when one of the bullets hit a bark and
rebounded causing serious injury to the plaintiff. In an action for damages, the defendant was
not held liable because it was classed by the court as an inevitable accident, as there was no
way the defendant could’ve foreseen that the bullet would end up harming the plaintiff.
Similarly, in Assam State Coop., etc. Federation Ltd. v. Smt. Anubha Sinha(A.I.R. 2001
Guwahati 18), an accidental fire was caused due to short-circuit in the premises occupied by
the defendant. In an action for damages, the defendant was not held liable as it was an
inevitable accident (caused in a split second due to short-circuit).

5. Act of God or viz majeure

This is quite like the defence of inevitable accidents. Act of God can be instituted whenever
there has been the working of natural forces in causing an event, which could not have been
reasonably expected/anticipated or guarded against, resulting in an injury to the plaintiff.
Therefore, the two essentials viz Majeure are:
1. There must be working of natural forces.
2. The occurrence must be extraordinary and not one which could have been anticipated
or reasonably guarded against.
In Nichols v. Marsland((1876) 2 Ex D 1):
The defendant had created some artificial lakes on his land. On a day of heavy rainfall (so
much so that it had broken previous records of rainfall), the plaintiff’s 4 bridges were washed
away by the water overflowing from those artificial lakes. In this case, the defendant was not
held liable for damages as it fulfilled the two conditions required for the Act of God i.e. the
rainfall was a natural force and it fell in extraordinary amount.
However, if a building collapses due to natural amounts of rain, the defence of Act of God
cannot be taken (as held in Kallulal v. Hemchand(AIR 1958 MP 48)).
Act of God also cannot be claimed in case an unruly mob causes an injury (as held in
Ramalinga Nadar v. Narayama Reddiar AIR1971 Kerala 197) as it does not qualify as a
natural force.

6. Private Defence:
The law permits a person to use reasonable force to protect himself or his property, provided:
1. There is an imminent threat to personal safety or property.
2. The use of such force is absolutely necessary to repel the invasion/attack.
3. The force used is not used out of proportion to the apparent urgency of the occasion.
4. The danger, therefore, has to be apparent and not assumed or mere anticipation.
But, the private defence does not mean that one can install spring guns (as in Bird v.
Holbrooke 130 Eng. Rep. 911 (C.P. 1825)), live electric wires, predatory fencing, etc. to
protect their property as it will result in “out of proportion” use of force to an anticipated
danger not imminent.
In Collins v. Renison(1973 QB 100):
The plaintiff had gone up a ladder to nail a board on a wall outreaching the defendant's
garden and window. The defendant, fearing burglary, shakes the ladder and it falls resulting
in the plaintiff’s injury. In an action for assault, it was held that the force used by the
defendant was not justified and was liable for the damage.

7. Mistake:
Mistake of whether the law or of fact is not considered a great defence in action for tort (as
held in Cherubin Gregory v. the State of Bihar). When a person willfully interferes with the
rights of another person then it is no defence to say that he had honestly believed that there
was justification for the same when, in fact, no such justification existed.
In Consolidate Co. v. Curtis((1894) 1 Q.B. 495):
The defendant auctioneer had auctioned goods, believing they belonged to the real owner,
and then sent him the proceeds. In an action by the actual owner, the auctioneer was held
liable for the tort of conversion and his defence of ‘mistake of fact’ had been rejected.
However, in this rule, there are some exceptions when the defendant may be able to avoid his
liability by showing that he acted under an honest but mistaken belief. This happens in cases
of malicious prosecution when the defendant can prove the plaintiff to have mala fide
intentions behind bringing an action over a trivial matter and without reasonable cause.
In Derry v. Peek [1889] UKHL 1, an honest belief in the truth of a statement was enough to
prove the mistake of fact as a good defence against tortuous liability.

8. Necessity:
If an act causing damage, is done under a necessity to prevent a greater evil/wrong is not
actionable in tort.
This statement stands true even though in these scenarios, the harm is caused intentionally. It
is distinct from private defence because it is done for the greater good and the harm is
intentional whereas, in private defence, the harm is caused to the plaintiff who himself is the
wrongdoer.
It is also distinct from an inevitable accident because, in the latter, the harm is caused despite
the best efforts to avoid it whereas, in the necessity, the harm is caused intentionally to avoid
a greater harm/evil.
For example, it would not actionable if a surgeon operates on an unconscious person in order
to save his life or a person deliberately hitting an uncontrollable car in order to stop it from
going onto the footpath and harming pedestrians.
The defence of necessity is based on the principle- “Necessity knows no law”- by Oliver
Cromwell.
In Leight v. Gladstone:
Forcibly feeding a hunger-striking protestor in order to save her life was held not actionable
as it was a necessary thing to do. It served as an appropriate defence for the tort of battery.
Similarly, in Carter v. Thomas:
The defendant had entered the plaintiff’s premises in good faith (bona fide intention) to
extinguish a fire. It was proven that he was working under a necessity to prevent its further
spread and therefore, was not held liable for the tort of trespass.

9. Statutory Authority:
When the legislature or the law-making body of a land authorizes or directs something to be
done then the damage resulting from such act, will not be actionable. This is even if such an
act constitutes the commission of a tort. When an act is done under a statutory authority/duty,
it is a complete defence in itself. However, the injured party can claim damages to the extent
of which is provided under such statute.
In Hammersmith Rail Co. Vs. Brand [1869] 171 LR 4 HL.
The value of the plaintiff’s land had depreciated heavily due to the fumes, noise, and
vibration caused by the nearby construction of railway lines under statutory authority. In an
action by the plaintiff, it was held that the defendant had acquired the right to construct
railway lines under Statutory Authority and was, therefore, not actionable.
The shield of immunity offered under statutory authority is not only for the harm that is
obvious but also for the harm that is incidental to the exercise of that authority. Statutory
authority is offered in two ways:

Absolute
Under this type of authority, anything done in course of engagement under statutory authority
is not actionable. The most common example of this would be the construction of railways
under most Railway Acts.
Conditional
Under this type of authority, the act authorized should be done without causing nuisance or
some other harm during the course of engagement under such authority.

In Metropolitan Asylum District v. Hill (1881) 6 A.C. 193,

The appellants were authorized under a statutory duty to construct a hospital in a residential
area. They did so but, increased the chances of infection to the residents of that area as proper
measures to avoid such were not taken by the constructors. It was held to be a tort of nuisance
and the appellants were given an injunction to remove operations in the hospital.
In this case, the statutory authority was construed to have been conditional in nature. That
means, they were authorized to construct the hospital but with reasonable care and precaution
so that it did not cause any nuisance to the residents of that area.

10. Parental Authority and Quasi Parental Authority

Parental Authority under the law of torts is an authority given to parents to control and
correct their children by either kind of force and such people are protected under the law of
torts only if they act in a reasonable manner and for a good cause. It is upon the Judge to
decide whether the act was reasonable or not. In India, there is a Guardians and Wards Act,
1890 and the Hindu Minority and Guardianship Act, 1956 which empowers the guardian to
dispose of or transfer movable or minor’s real estate for the benefit of a minor. Just as parents
give birth to a child, they have certain rights over the child and certain responsibilities
towards the child, such as the right to education, the right to determine religion, the right to
custody, the right to supervision, protection and health care, etc. According to Hindu law, the
father and mother are the natural guardians of the children. A guardian is a person who takes
care of a minor and his property. From the birth of the child, the parents acquire the rights
and duties of the guardian by a natural relationship. It is the duty of the natural parent to take
care of the child. There is equality of rights of both parents with respect to the custody,
education, control, correction and chastisement and upbringing of children.
Quasi-Parental comes from the Latin word “loco parentis” which means ‘in place of the
parent’ or a person acting in a parental capacity. A quasi-parental authority has fewer rights
than a parental authority. The quasi-parental authority also has the option of delegating its
responsibilities to the other person. Others include the school, local parents or relatives, who
may look after their children. The babysitter also acts as a quasi-parental authority for some
specified time period. The authority of a schoolmaster or a teacher is similar to that of the
parent. It resembles the authority of the parent, and therefore, it is quasi-parental authority.
People with such authority include the schoolmaster, superintendent or warden of the
orphanage, hostel or children observation home, etc. When a parent places his child with a
schoolmaster, he/she delegates to him all his/her own authority, as far as it is necessary for
the welfare of the child. The schoolmaster can, therefore, inflict a moderate chastisement on
his pupil. This authority is not limited to acts done on the premises of the school but may
extend to acts done by them while on the way to and from the school. However, the law is
that the parents and quasi parents both can administer punishment on a child for his good or
to prevent him from hurting himself or any other person. They have lawful control over the
children and can correct him at every point. Parents may also delegate their authority to a
babysitter who for a particular time period takes care of the child, she acts as a quasi parent.
Similarly, when the child is in the school the parents are deemed to delegate their
responsibility to teachers. In this the main important point of the right of both parents and
semi-parents is that both have the legal right of their children. In parental authority there is no
delegation of rights and duties, but in quasi authority there is some delegation of duties and
rights to other persons or authority.
1. Cleary vs. Booth ((1893) 1 Q.B. 465)
Facts of the case: – The respondent was the headmaster of the school. Two boys fought on
the way to school and the defendant punished them. The headmaster has been held
responsible for assault and battery.
Judgment of the case: – In this case, the court held that the teacher was not liable as the
authority of teachers is not limited only to the school premises but also outside the school. It
is clear that the parents have control over the children at home and the teachers and principals
in the school but the main question is who is in charge between the school and the home. It
can be rightly said that the authority here is delegated to the teachers. They can not only
correct them for their mistakes but also punish them. So, in the above case, the boys fought
outside the school and the headmaster had the right to punish them.
(Also refer R.C. Thampan and Ors. vs. The Principal, Medical College AIR 1979 Ker 171 )

11. Judicial Acts and Quasi Judicial Acts

A Judicial Act is an act done by an authority who is competent, for consideration of facts and
situations and impose liability or affect the rights of others. The acts that are done by a
particular competent authority, by looking upon the facts and the circumstances of the
situation are Judicial Acts. The judges are bound by the law to give decisions by following
the complete court procedure.
A judge discharging his official duties or a judicial officer exercising judicial function is
called a Judicial Act. This defence can be made by a judge if an action is taken against him in
atrocity. The law states that there shall be no trial against a judge for any act or for any word
spoken by him in the course of his duty.
The Court must ensure that the following two conditions are satisfied before the Judge allows
such defence: –
1. The act must be done in the performance of its judicial duty;
2. The judge must act within his jurisdiction, or at least believe in good faith that he has
jurisdiction to act.
This rule of immunity in the judicial acts is also applied to the members of naval and military
courts-martial or courts of inquiry constituted in compliance with the military law and usage
and not only to the judges of the ordinary civil courts. Also, to a limited extent, it applies to
the arbitrators as well and the persons who are appointed in a position like that of the
arbitrator. The person, if acting honestly, is not liable for any faults in the decision, he will be
liable if any corrupt or partisan exercises are being done in his office. But he cannot be made
personally liable if he works in utter use of judicial discretion and he cannot be questioned
upon the correctness and competence of his decision.
Quasi-Judicial Acts
The word ‘quasi’ is of Latin origin and means ‘similar but not exactly.’ The quasi-judicial
acts are not exactly court proceedings. They may seem to derive the powers and functions of
some laws, but they are still not considered as courts. There are some bodies and individuals
like colleges, societies, institutions which exercise quasi-judicial powers and are therefore
protected from civil liability. For Example, functions of commission like Human Rights
Commission, Tribunals like Income Tax Tribunal, etc. They don’t usually follow any
procedure of the court. These acts are done by the persons who are not judge of any court or
do not hold a judiciary power under certain laws. The institutions may hire a manager or
chief who may act as a judge and pass decisions regarding the working of that institution.
These quasi-judicial bodies follow the rules of natural justice. For the purpose of effective
functioning, they may make certain appropriate rules in accordance with the laws applicable
to them and in accordance with the traditional rules. Quasi-judicial acts are not actually court
proceedings. They may have the powers and functions of certain laws, but they are still not
considered courts. They usually do not follow any court process.

Quasi-Judicial is also known as a non-judicial body that can interpret law. It is an entity,
having powers and procedures similar to those of a court or judge, and which is bound to
determine facts and draw conclusions from them to provide the basis for official action.
The basic rule of the acts to be quasi-judicial is that the persons who exercise them are
protected from civil liability, if they observe the rules of natural justice and also the particular
statutory rules which may prescribe their course of action.
Therefore, these actions are a remedy for a situation or the imposition of a legal penalty, and
the actions may affect the legal rights, duties or privileges of specific parties. As such no
person may be wrongfully terminated or removed from membership without giving: –
Ample opportunity of being heard;
the opportunity to defend himself; and
The person removing him should act in good faith i.e., act with due care and attention.
 Module 5

Torts Against Human Being and Remoteness of Damage

Introduction

Trespass to a person symbolizes the invasion of a person’s right and liberty without any
lawful justification. When there is an invasion without intention, the cause of action is
negligent and not trespass, what survives trespass is an intentional invasion as it is to be noted
that intention is a chief element in trespass.

In most societies where everyone wants to preserve his or her body and property from
external invasion and from another’s wrongful intention to harm. It is perhaps understandable,
therefore, that one of the earliest remedies provided by English law was for forcible wrongs
against the person. Such wrongs were remediable by commencing an action using a writ of
trespass. The writ of trespass emerged in the 13th century. It originally existed in a semi-
criminal form under which if the defendant convicted, he was liable to a fine or imprisonment
in addition to being liable to the plaintiff in damages. However, by the end of the medieval
period, the tort action had shed its criminal characteristics. In civil law, the writ of trespass
dealt with direct interference with the person in three types of cases which correspond to the
modern torts of assault, battery, and false imprisonment.

Meaning and Interpretation

What is trespass to the person?

Trespass to the person means the apprehension of unreasonable interference with one’s body
or liberty. It includes usage of force causing damage and impairment in the body with
malafide intention. Trespass may be done intentionally, deliberately, or negligently. However,
it is considered as intentional even if the wrongdoer did it unknowingly. The word ‘intention’
here implies committing the wrong voluntarily. It is to be kept in mind that the relevance of
intention forms the essential component to trespass. Trespass to the person is a trespass
actionable per se unless the defendant establishes that his act was justified in law.

The tort of trespass to person has developed because of many changes and modifications. As
time changes and so is the competition, there is an increase in the mala fide intention of
people causing wrongful harm to others. There are many instances where the wrongful act
interference of one person’s body or property results in much harm either in private or in
public Therefore to apprehend such large sections of the public, there is a need to develop
such laws to protect the individual’s property and body.

Trespass to a person may be categorized as assault, battery, and false imprisonment and their
common element are that the wrong must be committed by “direct interference”. Any direct
interference of a protected interest from a positive act was actionable subject to justification.
If the interference was indirect, though foreseeable, or if the interference was from an
omission as distinguished from a positive act, there could be no liability in trespass though
the wrong-doer might have been liable in some other form of action. In today’s era, the area
of trespass to a person relates not so much to the recovery of compensation but helps in the
establishment of a right, or a recognition that the defendant acted unlawfully.

Essentials & relevance Of Trespass To the Person

Intention

It is to be noted that an act does not amount to trespass to the person unless it is done with
intention. Thus, the intention is the chief element for trespass to the person. In case of direct
or intentional trespass, the proof of actual damage is not needed but in negligent torts, proof
of damage becomes essential and the plaintiff needs to prove that injuries.

The relevance of intention in trespass to a person

According to old laws, trespass was a direct and forcible injury to a person. The intention was
a necessary element of the wrong, but intention meant committing the wrong voluntarily. The
wrong was intentional even if the wrongdoer did not know that the property belonged to
another. But if a man was forced into the land of another it did not amount to trespass. The
reason being the word ‘Force’ was merely a phrase of pleading which was later dropped but
the word ‘direct’ retained its importance and distinguished ‘trespass’ from ‘trespass on the
case’. It thus divides the action for personal injuries into ‘trespass’ (direct damage) or case
(consequential damage) the cause of action itself is divided. The thing which is now taken
into account is whether the act of trespass was done intentionally or unintentionally?

Thus a person to establish a suit for trespass to the person needs to prove just one thing
whether there was an intention to commit the trespass or not.
Types of trespass to the person

 Assault – It is an attempt or a threat to do a corporal hurt to another.

 Battery – It is the intentional and direct application of physical force to another
person.
 False imprisonment – It is the unlawful restraint of someone which affects the
person’s freedom of movement.

1. Assault

An assault is an act of causing illegal apprehension of fear in the mind of another person
causing him to suffer injury and usually a prelude to a battery. It can be both direct and
indirect. It can be carried out by the person himself or through the third person. Mere words
do not amount to assault but insulting or menacing does. The intent to do violence must be
expressed in threatening acts, and not merely in the speech. Threats over the telephone may
be an assault provided the claimant has reason to believe that they may be carried out in the
sufficiently near future. The apprehension must be genuine. If there is no reasonable fear
there is no assault. The victim must reasonably believe that the conduct of the defendant will
harm him. For example, A takes out the gun pretending it to be loaded, in front of B. B in the
apprehension of fear suffers a shock. Then A would be held liable for assault on B, even if
the gun wasn’t loaded because there was a direct apprehension of fear. However, it is
important to consider the foreseeability of a person.

Sec 351 of I.P.C. holds the person criminally liable for assault.

Essentials of assault include :

 Intent
 Apparent ability to carry out the purpose
 Apprehension
 Knowledge of threat.

DEFAMATION UNDER LAW OF TORTS:

Defamation law governs liability for the dissemination of words that tend to disgrace, injure
the reputation, or diminish the esteem others hold for a person. The words that can have this
effect are uncountable, but a few common ones are easy to state: liar, cheat, thief.
This simple definition of defamation veils many complicated questions explored in this
chapter. And even before we encounter any complicated questions, there are some obvious
ones raised immediately by this straightforward definition.

First, a tort based on an injury to esteem is subject to the varying norms that govern social
opinions on merit and value. Esteem, unlike a direct injury to person or to property, is a
“social construct.” A punch in the nose is a breach of reasonable conduct norms at all times
and wherever you go. But esteem varies over time and across communities. Over the years,
views have changed within many societies on what is considered disgraceful or repugnant.
Similarly, across communities within any given time period, views differ on the nature of
disgrace. Should society continue to recognize a tort based on such an ephemeral and
parochial notion as social esteem?

Second, the compensatory function of defamation law generates the question whether liability
is strict, based on negligence, or based on intent to harm. Is defamation a strict liability tort,
or is it a specific intent tort (requiring proof of intent to harm).

A man's reputation is his property and is more valuable than any other tangible asset. Every
man has the right to have his reputation preserved. It is acknowledged as an inherent personal
right of every person. It is a jus in rem, a right good against all the people in the world. The
degree of suffering caused by loss of reputation far exceeds that caused by loss of any
material wealth. Defamation is the publication of a statement which reflects on a person's
reputation and tends to lower him in the estimation of right-thinking members of society
generally, or tends to make them shun or avoid

Law of Defamation, like many other branches of tort law, lims at balancing the interests of
the parties concerned. These are the rights thdt a person has to his reputation vis-2-vis the
right to freedom of speech. The Law of Defamation provides defences to the wrong such as
truth and privilege thus also protecting right of freedom of speech but at the same time
marking the boundaries within which it may be limited.

In India, tort law is obtained from British Common Law and is yet uncodified. Therefore, the
existing law relating to defamation places reasonable restrictions on the fundamental right of
freedom of speech and expression conferred by Article 19(1) (a) of the Constitution and is
saved byclause (2) of Article 19.

Types of Defamatory Statements

There are two types of defamatory statements.

Libel: It is the publication of a false and defamatory statement tending to injure the reputation
of another person without lawful justification or excuse. The statement must be in a printed
form, e.g. writing, printing, pictures, cartoons, statue, waxwork, e,ffigy, etc.

Slander: It is a false and defamatory statement by spoken words and/or gestures tending to
in.jure the reputation of others. It is in a transient form. It also involves the sign language
used by the physically disabled. In Common law, a libel is a criminal offence as well as a
civil wrong, but a slander is a civil wrong only. However, in Indian law, both are criminal
offences under Section 499 of the IPC. Libel is more favorable to the claimant because it is
actionable per se and injury to reputation will be presumed.

Constituents or Elements of Defamation

Regardless of whether a defamation action is framed in libel or slander, the plaintiff must
always prove that the words, pictures, gestures, etc are defamatory. Equally, the plaintiff must
show that they refer to him. Finally, he must also prove that they were maliciously published.
Thus, there are three essential elements in a defamation action, viz. the following.

i) The statement must be defamatory: Any imputation which exposes one to disgrace and
humiliation, ridicule or contempt is defamatory. It could be made in different ways; it could
be oral, in writing, printed or by the exhibition of a picture, effigy or statue or by some other
means or conduct. According to Lord Atkins (1936, p.1237), whether a statement is
defamatory or not depends upon how likely the right-thinking members of the society take it.
However, words spoken in anger or annoyance or in the heat of the moment are not
defamatory as they no way reflect on the character of the one being abused.

ii) The statement must refer to thepluintifs: The plaintiff has to prove that the statement
which is claimed to be defamatory actually refers to him/her. It is immaterial that the
defendant did not intend to defame the plaintiff, if the person against whom the statement was
published could reasonably infer that the statement referred to the plaintiff, the defendant is
nevertheless liable. However, when the defamation refers to a class of persons, no member of
that group can sue unless he can prove that the words could reasonably be considered to be
referring to him.

iii) The statement must bepublished: Publication means making the defamatory matter known
to some other third party, and unless that is done no civil action for defamation can lie in
court. Communication to the plaintiff won't count because defamation is injury to the
reputation which consists in the estimation in which others hold him and not a man's own
opinion of himself. However, if a third party wrongfully intercepts and reads a letter sent to
the plaintiff it is not defamation. However, when the defendant knows that the letter is likely
to be read by someone else and it contains some personal information only meant for the
recipient, then he will be liable. When the repetition of the defamatory matter is involved, the
liability of the person who repeats that defamatory matter is the same as that of the originator,
because every repetition is a fresh publication giving rise to a fresh causc of action. Not only
the author is liable but the editor, printer or publisher would be liable in the same way.

Defences to Defamation

Following are the defences available to defamation.

i) Justification by truth: In a civil action for defamation, truth is a complete defence. However,
under criminal law, it must also be proved that the imputation was made for the public good.
Under the civil law, merely proving that the statement was true is a good defence. the reason
being that "the law will noi permit a man to recover damages in respect of an injury to a
character which he either does not or ought not to possess". If a fair and bona fide comment
on a matter of public interest is a defence to be available, the following essentials are required:

i)It must be a comment, i.e. an expression of opinion rather than an assertion of fact;
The comment must be fair, i.e. must be based on the truth and not on untrue or invented
facts.The matter commented upon must be of public interest.

ii) Privilege: It is of the following two kinds.

a) Absolute Privilege: Certain statements are allowed to be made when the larger interest of
the community overrides the interest of the individual. No action lies for the defamatory
statement even though it may be false or malicious. In such cases, the public interest demands
that an individuals right to reputation should give way to the freedom of speech. This
privilege is provided to:
 Parliamentary proceedings,
 Judicial proceedings,
 Military and Naval proceedings, and
 State proceedings.

b) Qualified Privilege: It is communications made in the course of legal, social or moral duty
for self-protection, protection of common interest,and for public good and proceedings at
public meetings, provided the absence of malice is proved. Also, there must be an occasion
for making the statement. To avail this defence, the following things must be kept in mind.

i)The statement should be made in discharge of a public duty or protection of an interest;

ii)It is a fair report of parliamentary, judicial or other public proceedings; and
iii)The statement should be made without any malice.

Defamation does have great significance as it protects a right which is essential for the
members of society to co-exist. Obviously, if people do not respect that right and are allowed
to say and publish whatever they want without substantiating it with an honest reason to
believe, then there would be no harmony in society; insecurity would be rampant and society
would be in shambles
Reynolds v. Times Newspapers Ltd. [2001] 2 AC 127
This case established the “Reynolds defense,” which allows journalists to publish defamatory
material if they can demonstrate that it was in the public interest to do so. The case involved
an article in The Sunday Times newspaper that accused the Irish politician Albert Reynolds
of being involved in the cover-up of a criminal investigation. Reynolds sued for libel, but the
court found that the article was protected by the Reynolds defense.

Jameel v. Wall Street Journal Europe [2007] 1 AC 359

This case involved an article in the Wall Street Journal that accused a Saudi Arabian
businessman, Khalid bin Mahfouz, of financing terrorism. Mahfouz sued for libel, but the
court found that the article was protected by qualified privilege, which allows the publication
of defamatory material in certain circumstances, such as where there is a duty to report on a
matter of public interest.

Flood v. Times Newspapers Ltd. [2012] UKSC 11

Denis MacShane sued The Times newspaper for libel over an article that accused him of false
expense claims as MP. The court found the article was protected by the defense of
responsible journalism, which allows defamatory material if it’s accurate and reasonable
steps taken

Ram Jethmalani v. Subramanian Swamy (2006) 126 DLT 535.

This case involved a defamation suit filed by Ram Jethmalani, a senior advocate, against
Subramanian Swamy, a politician, for making defamatory statements against him. The Delhi
High Court awarded damages of Rs. 25 lakhs to Jethmalani, stating that Swamy had not been
able to prove the truth of his allegations.

Priya Ramani v. MJ Akbar (2019)

MJ Akbar, a former Union Minister, filed a defamation suit against journalist Priya Ramani
for accusing him of sexual harassment. The Delhi High Court dismissed Akbar’s suit. The
court stated that Ramani’s allegations were protected by free speech and made in the public
interest.
Cyber defamation in India

Cyber defamation is the publication of false information about another individual using
computers or the internet in general. Cyber-defamation occurs when someone makes false
statements about another person and posts them online or sends emails to other individuals
that contain false information with the intent to harm the aggrieved party. The damage done
to a person by posting a defamatory comment about them on a website is extensive and
irreparable because the material is public and accessible to everyone.Every time an email is
forwarded to a different person or offensive content is shared on Facebook, it gets published
once more and spreads farther due to the internet’s ability to reach an essentially infinite
number of people, giving rise to further causes of action. This has made the internet a very
vulnerable place for libel. The difficulty in locating the offender and the extent to which
Internet Service Providers (ISPs) should be held accountable for supporting defamatory acts
makes the problem worse.

REMOTENESS OF DAMAGE:

The general principle behind the doctrine of the remoteness of damage was laid down in the
Court of Exchequer, in the case of Hadley v. Baxendale, the plaintiff’s mill had come to a
stop because of a break in their crankshaft. The defendant failed to deliver the broken
crankshaft to the manufacturer within the agreed time, which in turn led to delay in restarting
the mill. The plaintiff bought a case against the defendant to recover the profits lost because
of the delay in restarting the mill. The profits of the mills should be stopped by an
unreasonable delay in the delivery of the broken crankshaft to the third person held by the
court while rejecting the claim. The rule guiding the judges in such cases is when a contract
between two parties is breached by one of them, the other party is entitled to receive damages
but only if the breach of contract has arisen naturally, fairly and reasonably.

Test of Remoteness
Now that we’re aware of, a defendant is held liable for only the proximate consequences of
his wrongdoing. Let us look at how it is decided that what consequences are proximate and
which remote-

1. All Direct Consequences Test

An individual is held liable for all his direct consequences, even if one could not foresee them
beforehand as all consequences which directly come after the wrongdoing are not remote and
come under proximate. Further under this test, if one could foresee the damages, one is held
liable for all the direct consequences.

Re Polemis Case (1921)

This case was a landmark judgement in the test of directness. The court of appeal found the
test of reasonable foresight to be relevant whereas later the privy council upheld the test of
directness. Facts of this case are- Defendant was employed by the charterers of a ship to
unload it. A plank was negligently dropped into a hold which caused sparks with chemicals
and petrol they were supposed to be unloading. The sparks, in turn, lead to chemicals and
petrol catching fire and burning the entire ship. It was ultimately held that even though they
could not have foreseen that the ship would be destroyed by the negligently dropping of a
plank they were found to be liable as the fire was a direct consequence.

2. The Foreseeability Test

Today this test is preferred over the directness test. Sir Frederick Pollock also advocated for
this test, He opined, in cases Rigby v. Hewitt and Greenland v. Chaplin, that the “liability of
the defendant is only for those consequences which could have been foreseen by a reasonable
man placed in the circumstances of the wrongdoer.” In this test, an individual is held liable
only for the reasonably foreseeable consequences of his wrongdoings. It is to be decided by
the court if the consequence was foreseeable beforehand or not.

Wagon Mound Case

For a while, the test of foreseeability lost its popularity to test of directness but it was the case
of Overseas Tankship (UK) Ltd. v. Morts Dock and Engg. Co. Ltd., also popularly known as
the Wagon Mound Case that bought it back in the limelight for jurists.

Facts– The Wagon Mound was moored at a wharf in Sydney Harbour. Due to the negligence,
oil spilt into the water and was mixed with the flotsam and floated around to another wharf
where a ship was being repaired by welding. Because of the oil the flotsam caught fire and
ignited the wharf. The owner of the wharf claimed damage caused to him.

The Supreme Court held the appellants liable on the precedent of Re Polemis case, but when
the matter reached the Privy Council the judgement of the SC was reversed and Re Polemis
case declared an unfit for further rulings. It was held that appellants could not have
reasonably foreseen the damage to the respondent’s wharf. Therefore, forty years later the
Privy Council rejected the test of directness that was upheld in the Re Polemis case.

The doctrine of the remoteness of damage is used to decide the compensation to be given
when after a breach or wrongdoing. The wrongdoing may have multiple consequences arising
from it which are divided into two categories- proximate and remote. Only the consequences
that fall in the proximate are the ones the defendant will be held liable for. They’re divided
into these categories by the test of directness and test of foreseeability. Today the test of
foreseeability is considered to be more relevant than the test of directness, as an individual
should be held liable only for probable consequences of his wrongdoing.
 MODULE – 6
Statutory Tort

The Motor Vehicles Act,1988 is a comprehensive enactment in respect to various matters

relating to traffic safety on the roads and minimization of road accidents. The Act came into
force from 1 july 1989. It replaced Motor Vehicles Act, 1939, which earlier replaced the first
such enactment Motor Vehicles Act,1914. The Act provides in detail the legislative
provisions regarding licensing of drivers/ conductors, registration of motor vehicles, control
of motor vehicles through permits, special provisions relating to State transport undertakings,
traffic regulations, insurance, liability, offences and penalties etc.

There are various rights created for claiming compensation in case of any death or bodily
injury caused in an accident arising out of the use of motor vehicles. By the Motor Vehicles
(Amendment) Act, 1994, inter alia, amendments were made for make special provisions
under sections 66 & 67 so as to provide that vehicles operating on eco–friendly fuels shall be
exempted from the requirements of permits and also the owners of such vehicles shall have
the discretion to fix fares and freights for carriage of passengers and goods. The intention in
bringing the said amendments was to encourage the operation of vehicles with such
ecofriendly fuels. Liability rule deal with the unintended accidents and related issues. A suit
under liability rules is generally a private suit (over injuries) as opposed to a criminal
prosecution. If the legal requirements are fulfilled, the injurer is required to compensate the
victim.

COMPENSATION UNDER MOTOR VEHICLES ACT, 1988

Rules for payment of compensation can be discussed under two sub-headings;
a. Fault based liability and
b. no fault liability

Fault based liability and no fault liability

The cases of motor accidents constitute a major bulk of tort cases in India. To prevail in a suit
generally , a victim must also demonstrate that the injurer has breached a duty he owe to the
victim. When an injurer breaches a legal duty he is said to be “at fault’ or negligent. Breach
of a duty is caused by doing something which a reasonable man should do under the
circumstances. The rule of negligence with the defence of contributory negligence holds
injurer liable if and only if he was negligent and the victim was not. In India, this rule
requires proportional sharing of liability when both parties were negligent. That is, the
compensation the victim receives gets reduced in proportion to his or her negligence. The
rule of strict liability always holds the injurer liable irrespective of the care taken by the two
parties.

Before 1988 for motor vehicle accidents liability of injurer was predominantly fault based
liability. However, the 1988 amendment to the Act brought in an element of strict liability.
The following provision (section. 140) was introduced in the amendment:

“where death or permanent disablement of any person has resulted from an accident arising
out of the use of the motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the
case may be, the owners of the vehicles shall, jointly and severally, be liable to pay
compensation in respect of such death or disablement in accordance with the provisions of
this section.”

In simple terms, this amendment implied that the injurer or the insurance company of the
injurer has to pay a certain amount as compensation to the victim irrespective of whose fault
it is. The Act was further amended in 1994. As a result of this amendment, liability of injurer
became even stricter.

According to section 163-A:

“Notwithstanding anything containing in this Act or any other law for the time being in force,
the owner of the motor vehicle or the authored insurer shall be liable to pay in the case of
death or permanent disablement due to accident arising out of the use of the motor vehicle,
compensation as indicated in the second schedule, to legal heirs or the victim s the case may
be.”

The claimant shall not be required to plead or establish that the death or permanent
disablement was due to any wrong full act or neglect or default of the owner of the vehicle or
the vehicles concerned or any other person. While filing the damage awards (i.e the liability
payments to be made by the injurer to the victim), courts should take into account the entire
loss suffered by victim. A court may entitle the victim to over or under compensation. Such
court errors can cause various effects depending upon the liability rule in force. Motor
Vehicles Act,1988, however, recognizes limited ‘no fault liability’ but only in the cases of
death and permanent disablement. While deciding on compensation, courts have applied rule
of negligence with defence of contributory negligence. For instance, if the liability is limited
to Rs. 50.000 in the case of death and Rs.25,000 in the case of permanent disablement. Such
compensation can be claimed without establishing any negligence on the part ofowner or the
driver of the vehicle. The compensation claimed exceeding the amount can prevail only if
negligence is proved.

Liability Without Fault In Certain Cases

Liability without fault in certain cases is dealt under Chapter X of the Act.

Section 140 provides Liability to pay compensation in certain cases on the principle of no
fault. – It runs as:

(1) Where death or permanent disablement of any person has resulted from an accident
arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicles shall, or,
as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay
compensation in respect of such death or disablement in accordance with the provisions of
this section.

(2) The amount of compensation which shall be payable under subsection (1) in respect of the
death of any person shall be a fixed sum of [fifty thousand rupees] and the amount of
compensation payable under that sub-section in respect of the permanent disablement of any
person shall be a fixed sum of [twenty – five thousand rupees].

(3) In any claim for compensation under sub-section (1), the claimant shall not be required to
plead and establish that the death or permanent disablement in respect of which the claim has
been made was due to any wrongful act, neglect or default of the owner or owners of the
vehicle or vehicles concerned or of any other person.

(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any
wrongful act, neglect or default of the person in respect of whose death or permanent
disablement the claim has been made nor shall the quantum
of compensation recoverable in respect of such death or permanent disablement be reduced
on the basis of the share of such person in the responsibility for such death or permanent
disablement.

(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to
any person, for which the owner of the vehicle is liable to give compensation for relief, he is
also liable to pay compensation under any other law for the time being in force. Provided that
the amount of such compensation to be given under any other law shall be reduced from the
amount of compensation payable under this section or under section 163 – A

In Teethi vs. Motor Accidents Claims Tribunal, AIR 1996 Ker 237, it was observed that
under section 140 of the Act, the liability of the owner or owners of the vehicle or vehicles is
joint and several. In accidents involving two Motor vehicles, liability to pay compensation is
upon both the owners. If only one owner is identified, he is liable to pay compensation.

These provisions apply in cases where the claimant suffers death or permanent disablement,
as defined in the Act. The object behind no-fault principle is to give minimum relief
expeditiously to the victim of the road accident or his legal representative. To that extent,
these provisions constitute a measure of social justice.The right to claim compensation under
section 140 in respect of death or permanent disablement of any person shall be in addition to
any other right to claim compensation in respect thereof under any other provision of this Act
or of any other law for the time being in force. Thus the claims for death or permanent
disablement can also be persued under other provisions of the Act on the basis of negligence.

It was held in Ashok vs. Ashok Singh, 1996 (1) ACJ 392, To claim interim award under no
fault liability certificate from a medical practitioner regarding permanent disablement is
sufficient.

According to the Motor Vehicles Act of 1988, it is necessary for every driver on the road to
have insurance. The vehicle used can be for the purpose of social or domestic movement but
it has to be insured. The Act seeks to protect the interests of third parties, but not the insurers,
or the insurance companies themselves.
Insurance can be divided into two types:
1. First-party insurance; and
2. Third-party insurance.

As the name suggests, first-party insurance provides coverage to the parties insured according
to the contract by providing them with the assured amount on the happening of the event.
Third-party insurance for motor vehicles is a statutory requirement and benefits the liability
of the insured towards the death or disability of the third party. This is to ensure that the
insurer is paid his damages irrespective of the solvency capacity of the driver. In this
insurance contract, the insured is said to be the first party while the second party is the
insurance company. Finally, the person who claims damages from you is the third party of
the contract.

With regard to the difference between third-party insurance and first-party insurance, the
beneficiary of third party insurance is not the insured himself. It is the third party who has
been affected due to the actions of the owner of the vehicle. Thus, though he is not a part of
the contract itself, he is the beneficiary of the contract.

Secondly, the insured does not gain any benefit through third-party insurance. Only if there is
a situation where there has been no damage or death to the third party, the insurance amount
is returned on maturity to the insured.

Thirdly and finally, the value of the damage itself cannot be determined beforehand. On the
happening of the event, the damages are calculated by expert investigators from the
insurer/insurance company. On the basis of their assessment, a sum for damages is arrived at.
If it is lesser than or equal to the amount insured, they are paid from the insured amount. If it
is higher, the insured has to pay the excess amount from his pocket.

Thus, third-party insurance is considered to be essential to protect people’s livelihood and

secure their future. However, there are a couple of suggestions which can be implemented as
follows:

The calculation method for the sum of insurance for private cars can be tweaked to keep in
mind the manufacturers’ accessories and the on-road pricing inclusive of tax registration.
The IRDAI must create and maintain a repository that will connect a common data pool of
the insured’s driving habits. Thus, the insurance premium to be paid shall be determined
accordingly. This would be a welcome change for policyholders who pay huge premiums.

National Insurance Co. Ltd V. Fakir Chand 1996 ACJ 111, it was held that the term “third
party” includes a wide scope of people. This includes another party present in a vehicle or a
passerby, who are the subject matters of the insurance contract. An important fact to note is
that third party insurance does not seek to insure the insured himself but is enforceable
against the rest of the world injured by the acts of the insured. Thus, the insured is the
ultimate beneficiary of third-party insurance policies

National Insurance Co Ltd. V. Swaran Singh [2004] Insc 12 (5 January 2004)

The given case law focuses on the scope of the contractual and statutory liability and whether
a third-party claim can be excluded on the basis of third basis claims. It was held by the Court
that a contract that includes a condition taking away the rights of the third party would be
void. The exception would be in accordance with the MV Act under the proviso of S.149(2).
An insurer cannot avoid statutory liability as they have rights against the insured according to
the proviso. If a judgement establishes the liability of the insurer, it cannot be questioned.
CONSUMER PROTECTION ACT

The Consumer Protection Act in India was originally passed on 24th December, in the year
1986 based on the UN Guidelines for Consumer Protection adopted by the UN General
Assembly by consensus on 9th April, 1985. The Act, 1986 was briefly amended in the years
1991, 1993 and 2002.

The important objectives of the Act, 1986 were to:

(i) provide for better protection of the interest of consumers
(ii) establish Consumer Protection Councils, and
(iii) establish three-tier institutional mechanism for settlement of Consumer Disputes

The UN guidelines on Consumer Protection was expanded in the year 1989 and revised in the
year 2015 by the UN General Assembly primarily with the objective to create awareness in
different ways in which Member States, business and Civil Society can promote consumer
protection in the matter of public and private goods and services. Based on the above, India
initiated the process to bring substantial changes in the Consumer Protection Law in the same
year (2015) as well as on the adoption of best practices followed in different countries.
However, it could not be passed by the Parliament in the same year. Nevertheless, a
completely revised bill on Consumer Protection was introduced in the Parliament on July 8,
2019. The same was, after due deliberations, passed by Lok Sabha on July 30, 2019 and
Rajya Sabha on August 06, 2019 and thereafter it received the Assent of President on 9th
August 2019

The objectives of the Act, 2019 as stated in the long title of the Act are as under:
(i) to provide for protection ofthe interest of consumers, and
(ii) forthe said purpose, to establish authoritiesfor
(a) timely and effective administration (Consumer Protection Councils), and
(b) settlementof consumers' disputes(Consumer Dispute Redressal Commissions), and
(iii) to deal with matters connected therewith or incidental thereto (establishment of Central
Consumer
Protection Authority and Mediation Cells etc.).

Definition of consumer: A consumer is defined as a person who buys any good or avails a
service for a consideration. It does not include a person who obtains a good for resale or a
good or service for commercial purpose. It covers transactions through all modes including
offline, and online through electronic means, teleshopping, multi-level marketing or direct
selling.

Rights of consumers: Six consumer rights have been defined in the Bill, including the right to:
(i) be protected against marketing of goods and services which are hazardous to life and
property; (ii) be informed of the quality, quantity, potency, purity, standard and price of
goods or services; (iii) be assured of access to a variety of goods or services at competitive
prices; and (iv) seek redressal against unfair or restrictive trade practices.

Central Consumer Protection Authority: The central government will set up a Central
Consumer Protection Authority (CCPA) to promote, protect and enforce the rights of
consumers. It will regulate matters related to violation of consumer rights, unfair trade
practices, and misleading advertisements. The CCPA will have an investigation wing,
headed by a Director-General, which may conduct inquiry or investigation into such
violations.

CCPA will carry out the following functions, including: (i) inquiring into violations of
consumer rights, investigating and launching prosecution at the appropriate forum; (ii)
passing orders to recall goods or withdraw services that are hazardous, reimbursement of the
price paid, and discontinuation of the unfair trade practices, as defined in the Bill; (iii) issuing
directions to the concerned trader/ manufacturer/ endorser/ advertiser/ publisher to either
discontinue a false or misleading advertisement, or modify it; (iv) imposing penalties, and; (v)
issuing safety notices to consumers against unsafe goods and services.

Penalties for misleading advertisement: The CCPA may impose a penalty on a manufacturer
or an endorser of up to Rs 10 lakh and imprisonment for up to two years for a false or
misleading advertisement. In case of a subsequent offence, the fine may extend to Rs 50 lakh
and imprisonment of up to five years. CCPA can also prohibit the endorser of a misleading
advertisement from endorsing that particular product or service for a period of up to one year.
For every subsequent offence, the period of prohibition may extend to three years. However,
there are certain exceptions when an endorser will not be held liable for such a penalty.
Consumer Disputes Redressal Commission: Consumer Disputes Redressal Commissions
(CDRCs) will be set up at the district, state, and national levels. A consumer can file a
complaint with CDRCs in relation to: (i) unfair or restrictive trade practices; (ii) defective
goods or services; (iii) overcharging or deceptive charging; and (iv) the offering of goods or
services for sale which may be hazardous to life and safety. Complaints against an unfair
contract can be filed with only the State and National Appeals from a District CDRC will be
heard by the State CDRC. Appeals from the State CDRC will be heard by the National
CDRC. Final appeal will lie before the Supreme Court

Changes incorporated in Consumer Protection Act, 2019

The changes that were incorporated with the enactment of the Consumer Protection Act, 2019
are:

1. The District Commissions will have the jurisdiction to entertain complaints where the
value of the goods, services or products paid as consideration to the seller does not
exceed 50 lakh rupees.

2. State Commissions will have the jurisdiction to entertain complaints where the value of
the goods, services or products paid as consideration to the seller exceeds 50 lakh rupees
but does not exceed two crore rupees.

3. The National Commission will have the jurisdiction to entertain complaints where the
value of the goods, services or products paid as consideration to the seller exceeds two
crore rupees.

4. The Act further states that every complaint concerning consumer dispute shall be
disposed of as expeditiously as possible. A complaint filed under this Act shall be
decided within the period of three months from the date of receipt of notice by the
opposite party in the cases the complaint does not require analysis or testing of the goods
and services and within a period of 5 months, if it requires analysis or testing of the
goods and services.
5. The Consumer Protection Act, 2019 also facilitates the consumers to file complaints
online. In this regard, the Central Government has set up the E-Daakhil Portal, which
provides a convenient, speedy and inexpensive facility to the consumers all over India so
that they are able to approach the relevant consumer forums in case of any dispute arises.

6. The Act lays down the scope for e-commerce and direct selling.

7. The Consumer Protection Act, 2019 lays down provisions for mediation and alternative
dispute resolution so that the parties are able to dispose of the case conveniently without
going through the trouble of litigation.

8. The Consumer Protection Act, 2019 contains provisions for product liability, unfair
contracts and it also includes three new unfair trade practices. In contrast, the old Act just
stated six types of unfair trade practices.

9. The Act of 2019 acts as the advisory body for the promotion and protection of consumer
rights.

10. Under the Consumer Protection Act, 2019 there is no scope for selection committees, the
Act authorises the Central Government to appoint the members.

Therefore, with the changes in the digital era, the Indian Parliament enacted and brought the
Consumer Protection Act, 2019 in force to include the provisions for e-commerce as
digitalization has facilitated convenient payment mechanisms, variety of choices, improved
services, etc.

Horlicks Ltd. v. Zydus Wellness Products Ltd. CS (Comm) 464 of 2019, decided on 20-5-
2020.
In this case, both parties are manufacturers of nutritional drinks, however, Zydus advertised a
television commercial trivialising the products of Horlicks Ltd. The commercial was being
telecasted in various languages including English, Tamil and Bengali. Therefore, the Delhi
High Court relied on various judgments on misleading advertisements, disparagement and
law governing the publication of advertisements on television and held that the advertisement
is disparaging as it does not provide any concrete proof regarding the quality of the product.
Further, electronic media leaves an impression on the minds of the viewers thus, these types
of advertisements would not only be detrimental to the consumers but also the complainant
would suffer irreparable damage.

Tarun Kumar Ghai Vs Malibu Estate Pvt Ltd, NCDRC, 2008, CPJ 309

This case dealt with INEQUITABLE AGREEMENT. The issue of the case was what one
should do, if a builder forces you to pay penal interest, but, he does not pay any compensation
for delayed completion.In this case, The Court held that as per the agreement, if the builder
abandons the whole or part of the scheme, the builder’s liability is limited only to refund of
the Amount paid by the allottee without interest or compensation. On the other hand, if the
allottee has delayed in paying instalments, he is liable to pay 20% interest and all amount due.
This agreement is inequitable. As relief, the builders have to pay interest on the deposited
amount at par with the bank loan interest.

Veena Khanna Vs Ansal Properties & Industries Ltd, NCDRC, 2007, CPJ 185

The National Commission overturned a State Commission order. The National Commission
observed that a refund of money with interest at the bank rate does not imply that the
complainant has been adequately compensated for the builder’s delay in completing the flat
and failing to deliver possession of the flat. It was noted that due to the delays in construction
and decision-making, it is practically impossible for a consumer to purchase a flat at market
price. It was held that the State Commission had a duty to direct the builder to deliver
possession of the same flat or a flat of comparable size to the consumer, with compensation
for the delay in delivery. In any case, adequate compensation should have been provided so
that the complainant could purchase a new flat of the same size at the current market rate.
The payment of interest alone is insufficient compensation.