LAW OF TORTS & CONSUMER PROTECTION ACT 2019

According to syllabus of Dr.
Bhimrao Ambedkar Law University, Jaipur 1
Q.1 What is Tort or what do you mean by tort? From where the word tort
has been derived?
Ans. Meaning of Tort : In simple words, a tort is a civil wrong. When an act
committed by one person harms another person or injures his/her legal
rights, it can be classified as a tort.
Definition: “Tort is a civil wrong which is repressible by an action for
unliquidated and which is other than a mere breach of contract or breach
of trust.” Section 2 (m) of Indian Limitation Act, 1963.
Q.2 What are the essential elements of it ?
Ans. Essentials elements of Tort:
1. A wrongful act or omission committed by a person.
2. The wrongful act or omission must result in legal damages or another
person.
3. The wrongful act must be of such nature as may give rise to a legal
remedy in the form of an action for damages.
The French word Tort is derived from the Latin term Tortum which
means twisted. The term is French equivalent of the English word wrong
and the Roman law term delict. It implies a conduct which is twisted or
wrong.
Q.3 From where does the law of torts have been developed?
Ans. Development of law of torts in India: To deal with the malicious behaviour
of the people tort existed in Hindu and Muslim law but it can be said
that tort was formally introduced by the Crown in India. It 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 applied selectively in
Indian courts keeping in mind if it suits the circumstances of Indian
2 LAW OF TORTS & CONSUMER PROTECTION ACT 2019
society. Law of torts is a system of laws, which enables a person who
has suffered harm or injury by the acts of another, may claim damages
in a civil suit. The law of torts in India is based on English common law.
So the law of torts have mainly been developed through judicial
decisions.
Q.4 What are general conditions of liability in a tort?
Ans. General Conditions of Liability For A Tort: As stated earlier, there is no
fixed catalogue of circumstances, which along and for all time mark the
limit of what are torts. Certain situations have been held to be torts and
will continue to be so in the absence of statutory repeal, and others
have been held not to be torts. However, certain general conditions for
tortious liability can be laid down. In general, a tort consists of some act
or omission done by the defendant (tortfeasor) whereby he has without
just cause or excuse caused some harm to the plaintiff. To constitute a
tort, there must be:
(a) A wrongful act or omission of the defendant
(b) The wrongful act must result in causing legal damage to another; and
(c) The wrongful act must be of such a nature as to give rise to a legal
remedy.
Q.5 Explain the maxim,” ubi jus ibi remedium”?
Ans. Ubi Jus Ibi Remedium: The maxim states that if any wrong has been
committed, the law provides a remedy. In simple terms, the law specifies
a remedy for every wrong. It shall also be described as the principle that
no wrong should be allowed to go without any compensation if it can
be redressed by a court of law. In the famous case of Leo Feist v. Young,
the circuit court of appeals of USA observed that, it is an elementary
maxim of the equity of jurisprudence and there is no wrong without a
remedy.
Essentials:
1. This maxim is applicable only where the right in question is legal.
2. The wrongful act must violate the legal right of a person; only then the
cause of action may arise.
3. In case, no legal injury is done to the person then the maxim ‘damnum
sine injuria’ will be applied.
Relevant Case Laws: Sardar Amarjit Singh Kalra v. Promod Gupta &
Others, in this case the court recognized the maxim ubi jus ibi remedium
as fundamental principle of law. It was held by the Supreme Court that
it is the duty of courts to protect the rights of people and to grant reliefs
to the aggrieved party rather than denying it.
Q.6 What is meant by “joint tortfeasors”?
Ans. Meaning : Two or more individuals with joint and several liability in a
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 3
tort action for the same injury to the same person or property. To be
considered joint tortfeasors, the parties must act together in committing
the wrong, or their acts, if independent of each other, must unite in
causing a single injury.
Definition : A Tortfeasor is an individual or entity that has been found
to have committed a civil offense that injures another party.
For Example: In Palghat Coimtore Transport Co. Vs. Narayana, There
was a collision between two buses which resulted in the death of one of
the passengers, further in a suit filed by the representatives of the
deceased under Fatal Accidents Act, it was held that the owners of
both the bus companies would be liable.
Q.7 What are the general defences or exceptions of tort?
Ans. Meaning of General Defences: When a plaintiff brings an action against
the defendant for a tort committed by him, he will be held liable for it, if
there exists all the essential ingredients which are required for that
wrong. But there are some defences available to him using which he
can absolve himself from the liability arising out of the wrong committed.
These are known as ‘General defences’ in the law of tort.
The defences available are given as follows:
• The defense of consent
• The wrongdoer is the plaintiff
• Inevitable accident
• Act of God
• Private defense
• Mistake
• Necessity
• Statutory authority
Q.8 When a person discharged from the liability of tort ?
or
How tort can be discharged ? Explain various modes of discharging
torts.
Ans. Even if tort is tort is committed and liability exists, under certain
circumstances this vested right of action may be discharged. In these
cases the wrong is not justified but the remedy for the wrong cases to
operate. Discharge of torts differs from justification of tort. Justifications
are exceptions, under certain circumstances the wrong is justified in
doing it. Rule of non liability is provided. It is excused, justified.
Definition : In discharge of tort, the circumstances are such the liability
exist but remedy does not exist . The meaning of discharge of tort is
coming to an end of the tort. It is a process by which tort ceases to exist
and the wrongdoer is not liable for the wrong committed by him.
Grounds for discharge of tort or modes of discharging tort :
• Death of the parties
• Accord and Satisfaction
• Release
• Judgement
• Law of limitation
• Waiver by election
• Acquiescence
Q.9 What is the doctrine of remoteness of damages?
Ans. Meaning of remoteness of damages: It is quite simple, once the damage
is caused by a wrong, there have to be liabilities (conditional to some
exceptions). The question remains how much liability can be fixed, and
what factor determines it. Remoteness of damage is an interesting
principle. Once the damage is caused by a wrong, there have to be
liabilities. The question is how much liability can be fixed, and what
factor determines it. The principle of Remoteness of Damages is relevant
to such cases. An event constituting a wrong can constitute a single
consequence or may constitute of consequences i.e. series of acts/
wrongs. The damage may be proximate or might be remote, or too remote.
For example: A person is going driving on a road, he hits a girl on the
footpath, the girl tumbles on a bicycle breaks her finger, the bicycle man
loses his balance and gets in front of a fuel tanker, the tanker to save the
man on the bicycle steers left but unfortunately hits the railing to a river
bridge and falls into it, the lock of the fuel tank breaks and the oil spills
into the river , the driver with the truck drowns.
Q.10 What is “Scienter rule”?
Ans. Meaning of Scienter: The word Scienter means intent or knowledge of
wrongdoing. When a person has knowledge for the wrongness of an
act or event prior to committing it.
Scienter in Tort Law:
Scienter in tort law often concerns civil lawsuits involving animals and
the damage they inflict upon a human, such as dog bites. To be
successful at proving scienter in tort law, an individual must be able to
prove the following about the person in control of the animal:
• That an injury occurred as a result of the animal’s actions
• That the animal had some sort of problematic trait, such as a biting
tendency
• That the person in control of the animal knew that the animal had this
problematic trait.
Q.11 What do you mean by nervous shock?
Ans. Definition: Medically speaking nervous shock would mean the
following: circulatory failure marked by a sudden fall of blood pressure
and resulting in pallor, sweating, fast (but weak) pulse, and sometimes
complete collapse. Its causes include disease, injury, and psychological
trauma. In shock, the blood pressure falls below that necessary to
supply the tissues of the body, especially the brain. Under the English
law of tort, the same is defined as follows: nervous shock or injury
inflicted upon a person by intentional or negligent actions or omissions
of another. It is most often applied to psychiatric disorders triggered by
witnessing an accident, for example an injury caused to one’s parents
or spouse. Although the term “nervous shock” has been described as
“inaccurate” and “misleading” (Lord Keith and Lord Oliver,
respectively, both inAlcock v chief constable of south Yorkshire) it
continues to be applied as a useful abbreviation for a complex concept.
Q.12 What is “Innuendo” ?
Ans. Meaning: In law it means “an indirect hint.” “Innuendo” is used in
lawsuits for defamation (libel or slander ) , usually to show that the
party suing was the person about whom the nasty statements were
made or why the comments were defamatory.
For Example: “the former mayor is a crook” and Joe Alabaster is the
only living ex- Mayor, thus Innuendo Alabaster is the target of the
statement. or “Joe Alabaster was paid $100,000 by the Hot Springs
Water Company.” when it was known that Hot Springs was buckling
for a contract in the city. The innuendo is that Alabaster took a bribe.
Cases with regard to “Innuendo” are:
• Subair Vs. P.K Sudhakaran , 1987
• Hindustan Unilever Limited Vs. Reckitt Benckiser India Limited
Q.13 What are Felonious Torts ?
Ans. Meaning: When an Act amounts to both a tort and a crime (felony), it is
called felonious tort. For example, assault, defamation, malicious
prosecution etc. In England, prior to 1967, the doctrine of merger of tort
is felony was applied. So, a suit under the law of torts could be filed,
unless the person first prosecuted in a criminal Court. In 1967, however,
this rule was abolished in England. In India, the rule of merger of tort in
felony had never been accepted. So a person can always be sued for a
tort, although the Act also amounts to a crime, without first instituting
criminal proceedings against him.
Q.14 What is vicarious liability ?
Ans. Meaning: Vicarious liability means the liability of a person for an act
committed by another person and such liability arises due to the nature
of the relation between the two.
For example. A, is a driver who works for B and while driving B’s car to
take him to his office, he hits C, a pedestrian due to his negligence in
driving. In such a case even though B was not driving the car he will
still be liable for the accident which was caused due to the negligence
of A.
Relations in which Vicarious Liability arises:
1. Master and Servant
2. Partners in a Partnership Firm
3. Principal and Agent.
4. Company and its Directors
5. Owner and Independent Contractor.
Q.15 Explain “Conversion” ?
Ans. Conversion is an act of ‘Willful interference.’ This expression implies
the element of intention, which refers to the intentional commission of
the act, which is termed as conversion. Conversion is an intentional
tort consisting of “taking with the intent of exercising over the chattel
an ownership inconsistent with the real owner’s right of possession”.
In England & Wales, it is a tort of strict liability. Its equivalents in
criminal law include larceny or theft and criminal conversion.
An act of conversion may be committed:
• When the property is wrongfully taken.
• When it is wrongfully parted with
• When it is wrongfully sold
• When it is wrongfully retained
• when it is wrongfully destroyed
• When there’s a denial of the wrongful owner’s right.
Q.16 What is “Battery”? Is it actionable?
Ans. Meaning : Purposely touching or applying force on other persons or
things related to the person without his consent with the intention to
harm the person is known as a battery. It is only considered when there
is an actual physical contact without the consent of the person to harm
the person. Generally, assault is followed by the battery which is the
reason assault and battery are mostly used together. Like through use
of the stick, bullet, or by spitting on man’s face, pulling of chair etc. are
some examples of Battery tort.
The battery is often considered as trespass to a person, so it is divided
into two types:
1. Criminal Battery
2. Civil Battery
Q.17 Explain the term assault.
Ans. Meaning: In common law, assault is the tort of acting intentionally that
is with either general or specific intent, causing the reasonable
apprehension of an immediate harmful or offensive contact. Because
assault requires intent, it is considered an intentional tort, as opposed
to a tort of negligence.
Section 351 of Indian Penal Code defines assault as- whoever makes
any gesture, or any preparation intending or knowing it to be likely that
such gesture or preparation will cause any person present to apprehend
that he who makes that gesture or preparation is about to use criminal
force to that person, is said to commit an assault. Explanation: Mere
words do not amount to an assault. But the words which a person uses
may give to his gestures or preparations such a meaning as may make
those gestures or preparations amount to an assault.
Illustrations: 1. A shakes his fist at Z, intending or knowing it to be
likely that he may thereby cause Z to believe that A is about to strike Z,
A has committed an assault.
2. A takes up a stick, saying to Z, “I will give you a beating”. Here,
though the words used by A could in no case amount to an assault, and
though the mere gesture, unaccompanied by any other circumstances,
might not amount to an assault, the gesture explained by the words
may amount to an assault.
Q.18 What do you understand by False imprisonment?
Ans. Meaning: False imprisonment occurs when a person intentionally
restricts another person’s movement within any area without legal
authority, justification, or the restrained person’s permission. Actual
physical restraint is not necessary for false imprisonment to occur.
According to Black Stone: “Every confinement of the person is an
imprisonment, whether it be in a common prison, or in a private house,
or in the stocks, or even by forcibly detaining one in the public street.
For example: an armed bank robber yells at the customers to get down
on the floor, threatening to shoot them if they try to leave. Since they
know they might be killed or suffer serious bodily harm if they try to
leave, they are being held against their will.
The captive bank customers may be able to claim damages, and the
bank robber may be charged with the crime of false imprisonment. These
crimes can be a misdemeanour or a felony depending on the
circumstances.
Q.19 Distinguish between Assault and Battery.
Ans. Difference between Assault and Battery
Assault Battery
Every assault does not include Every battery includes
battery assault. Battery is an
aggravated form of assault.
Assault is the attempt to Battery includes intentional
commit battery application of force to
an oth er person without an y
lawful justification
This is done to threaten a This is don e to cause harm to
person a person
Here physical con tact is not In battery there must be a
necessary physical contact
For an Assault a mere For a battery th ere must be an
apprehension of danger is actual application of physical
sufficient force
Q.20 What is Defamation?

Ans. Any intentional false communication, either written or spoken , that
harms a person’s reputation; decreases the respect, regard or confidence
in which a person is held; or induces disparaging, hostile or disagreeable
opinions or feelings against a person is known as defamation.
Defamation is the act of making untrue statements about another which
damages his/her reputation.
In the words of Dr. Winfield “Defamation is the publication of a
statement which tends to lower a person in the estimation of right
thinking members of the society, generally or, which tends to make
them shun or avoid that person.
For example: Publishing of a defamatory statement against a person on
a social networking site such as Facebook, Twitter, etc., or sending of
emails containing defamatory content about a person with the intention
to defame him / her.
Defamation is of two kinds Libel and Slander. If the statement is made in
writing and published in some permanent and visible form, then the
defamation is called libel. Whereas, if the statement is made by some
spoken words then the defamation is called slander.
Few Indian legal cases related to Defamation:
1. B V P Rao Vs. Ratan Tata and others, 1997
2. Anil Amabani Vs. Mukesh Ambani, 2008
3. Chris Cairns Vs. Lalit Modi, 2010
Q.21 Define “Slander”.
Ans. Slander is also known as oral or spoken defamation, slander is the legal
term for the act of harming a person’s reputation by telling one or more
other people something that is untrue and damaging about that person.
Slander can be the basis for a lawsuit and is considered a civil wrong
(i.e., a tort).
For example: Telling someone that a certain person cheated on his
taxes, or committed tax fraud.
Elements of Slander are:
1. A statement of fact. Of course, for defamation to have occurred,
somebody must have made the statement that is considered defamatory.
2. A published statement
3. The statement caused injury
4. The statement must be false
5. The statement is not privileged
Q.22 What is Libel Defamation?
Ans. Defamation: A man’s reputation is considered valuable property and
every man has a right to protect his reputation. This right is
acknowledged as an inherent personal right and is a jus in rem i.e., a
right good against all persons in the world. Defamation refers to any
oral or written statement made by a person which damages the reputation
of another person. As per Black’s Law Dictionary, defamation means
“The offence of injuring a person’s character, fame, or reputation by
false and malicious statements”.
Libel Defamation: Libel is a false statement published through writing,
pictures, or cartoons, defaming another individual’s reputation.
Publication of these statements can come through major media outlets,
such as newspapers or magazines. Libellous statements can also be
made online through social media platforms, review sites, etc. An example
of libel is when someone publishes in the newspaper that you are a
thief, even though this is false.
Q.23 What do you understand by “Trespass”?
Ans. Meaning: an unlawful act committed on the person, property, or rights
of another especially : a wrongful entry on real property. According to
sec.441 of the Indian Penal Code Criminal Trespass – Whoever enters
into or upon property in the possession of another with intent to commit
an offence or to intimidate, insult or annoy any person in possession of
such property, or having lawfully entered into or upon such property,
unlawfully remains there with intent thereby to intimidate, insult or
annoy any such person, or with intent to commit an offence, is said to
commit “criminal trespass”.
For example: a hunter who enters fields where hunting is forbidden is
a trespasser.
Some of the leading cases of Trespasser in Indian Law are:
• Bodi Reddy vs. Appu Goundan, 1970
• Mirza Mehboob Ali Baig Aslam vs. Union of India, 1994
• Puran Singh & Ors vs. State of Punjab, 1975
Q.24 What is Trespass ab initio?
Ans. Meaning: A form of trespass ab initio occurs when a person enters land
with authority given by law, e.g. to arrest a criminal or search for stolen
goods, and subsequently commits an act that is an abuse of that
authority. Trespass ab initio is a form of trespass. The term trespass
refers to an act of intrusion into another person’s property. Ab initio is
a Latin term meaning, “from the beginning.” A person is said to have
committed trespass ab initio, when she/he has abused the authority
granted by law to enter a property or land.
Conditions constituting trespass ab initio are:
1. The authority abused must be an authority granted by law and not by
an individual.
2. There must be some positive act of misconduct, and not a mere omission
or neglect of duty.
Legal Cases with regard to Trespass ab intito:
• The Punjab National Bank, Ltd vs Its Workmen, 1959
• McGuire v. United States, 1927
• Gibson v. Holmes, 1905
Q.25 What are the torts regarding Incorporeal Property?
Ans. Meaning of “Incorporeal Property: Intangible property, also known as
incorporeal property, describes something which a person or
corporation can have ownership of and can transfer ownership to another
person or corporation, but has no physical substance, for example
brand identity or knowledge/intellectual property. Incorporeal property
is a legal right in property having no physical existence. For example,
patent rights, lease or mortgage. They have value but lacks physical
substance.
Q.26 What is the “rule of last opportunity”?
Ans. Meaning: The term rule of the last opportunity means the last
opportunity to avoid an accident. If in a situation both the plaintiff and
the defendant are negligent on their part and whosoever has the last
opportunity of avoiding such consequences fails to do so will be held
responsible for such an accident solely.
Illustration: A is out for a walk with his dog but without a leash on him.
The dog suddenly ran towards the road and got hit by B who was
driving rashly. Here B had the last opportunity to avoid that accident
by pushing the brake pedal.
Some of the cases with related to rule of last opportunity are:
1. Jang Bahadur Singh Vs. Sunder Lal Mandal and others, 1961
2. Karnataka Employers Association vs The State Of Karnataka on, 2018
3. Monnet Ispat And Energy Ltd vs Union Of India And Ors on , 2012
Q.27 What is “Doctrine of Alternative Danger”?
Ans. Meaning of doctrine of alternate danger: The doctrine of alternate
danger may be invoked when due to the negligent act of the defendant;
the plaintiff is placed in a situation to place him in another danger in
order to avert imminent present danger. This is also called the dilemma
principle. Such a situation arises, when the plaintiff, P is put in a position
of imminent personal danger by the wrongdoing of the defendant. In
order to avoid the danger, P suffers injury. In such cases, D is liable.
Q.28 What is “Nuisance”? What are the various kinds of it?
Ans. The word nuisance has been derived from the French word ‘nuire’
which means, to hurt or to annoy. Ordinarily, nuisance means
disturbances.
Definition according to Winfield: Nuisance is incapable of exact
definition. But for the purpose of the law of tort, it may be described as
unlawful interference with a person’s use or enjoyment of land or of
some right over, or in connection with it.
Kinds of Nuisance: 1. Public Nuisance 2. Private Nuisance
1. Public Nuisance: Public nuisance affects the society and the people
living in it at large, or some considerable portion of the society and it
affects the rights which the members of the society might enjoy over
the property. The acts which seriously affects or interferes with the
health, safety or comfort of the general public is a public nuisance.
Case Law: 1. Ram Raj Singh vs. Babulal, 1982 2. Rose vs. Milles,
1815
2. Private Nuisance: Private Nuisance is that kind of nuisance in which a
person’s use or enjoyment of his property is ruined by another. It may
also injuriously affect the owner of the property by physically injuring
his property or by affecting the enjoyment of the property.
Case Laws: 1. Radhey Sham vs. Gur Prasad, 1978.
Q.29 Define “Inevitable Accidents”.
Ans. The inevitable accident which is also known as unavoidable accident
says that a person cannot be held liable for an accident which was not
foreseeable despite all care and caution taken from his side. Law states
that a high degree of precaution is not required, reasonable care is
sufficient.
Example: If [A] was driving a car and he was all in his senses and took
all due care, but suddenly due to mechanical part failure his car loses
his balance and hits a passer-by. In this case, the driver would not be
liable as he took all precautions from his side. The accident was
unavoidable.
Q.30 What is the defence of “Act of God” or “Vis Major”?
Ans. An Act of God is defined as a direct, sudden, insanely violent, natural,
and irresistible act of nature, one which could not by any amount of
care would have been foreseen, or if it has been foreseen, could not be
avoided by any amount of care by any individual. An act of God is a
defence used in cases of torts when an event over which the defendant
has no control over occurs and the damage is caused by the forces of
nature. When a defendant pleads an act of God as an answer to liability,
he may deny that he was at fault.
According to Salmond: An act of God includes those acts which a man
cannot avoid by taking reasonable care. Such accidents are the result
of natural forces and are incoherent with the agency of man.
Q.31 What do you understand by “MayHem”?
Ans. Mayhem is a tort that causes severe injury to the victim such that he is
unable to defend himself from the tortfeasor. It is closely intertwined
with assault and battery. Mayhem is a specific crime that involves the
disfigurement, loss of limb, loss of use of a limb or the severing of body
parts of the victim and can leave the person severely harmed in the
process. There are various acts involved in these crimes that can
increase the severity of charges or add to the charges depending on
the situation.
The more common examples that the police use as mayhem include the
loss of an eye, ear or even the nose. However, the loss of a limb such as
an arm or leg is also common. The loss of the use of a limb is less
common and more difficult to understand if the person still has the limb
attached. This can involve the internal processes where something
happened on the inside of the body for the person to lose access to the
limb such as damaging the cornea of the eye or bursting blood vessels.
These complications may require the help of a doctor to describe and
detail to the court.
Fetter v. Beale [91 Eng. Rep. 1122]: The plaintiff had recovered damages
from the defendant for an action of battery. Shortly thereafter, “part of
his skull by reason of the said battery came out of his head”, and the
plaintiff brought a subsequent action under Mayhem. Through this
case, the scope of mayhem was also expanded to loss of skull.
Q.32 Explain the meaning of “Duty of care” in Negligence.
Ans. A duty of care is the responsibility that a person or business has when
doing business with, or otherwise interacting with, other people and
businesses. Under tort law, duty of care is defined as the responsibility
of a person or business to act as a reasonable person would act in a
similar situation. A person who violates his duty of care by acting in a
negligent or reckless manner is then liable for any harm that another
person suffers as a result of his behaviour. Examples of duty of care
relationships include: Manufacturers, Property Owners, Businesses
etc. Duty of care is one of the essential conditions of negligence in
order to make the person liable. It means that every person owes a duty
of care to another person while performing an act. Although this duty
exists in all acts, but in negligence, the duty is legal in nature and
cannot be illegal or unlawful and also cannot be of moral, ethical or
religious nature.
In the case of Stan Bele vs Troman (1948), A decorator was engaged to
carry out decorations in a house. Soon after The decorator left the
house without locking the doors or informing anyone. During his
absence, a thief entered the house and stole some property the value of
which the owner of the house claimed from the decorator. It was held
that the decorator was liable as he was negligent in leaving the house
open and failed his duty of care.
Q.33 Explain doctrine of strict liability.
Ans. Doctrine of Strict Liability: Strict liability is a legal doctrine that holds
a party responsible for their actions or products, without the plaintiff
having to prove negligence or fault. When someone partakes in ultra
hazardous activities such as keeping wild animals, using explosives, or
making defective products, then they may be held liable if someone
else is injured. Strict liability is a theory that imposes legal responsibility
for damages or injuries even if the person who was found strictly liable
did not act with fault or negligence. This theory usually applies in three
types of situations: animal bites (in certain states), manufacturing
defects, and abnormally dangerous activities.
The main categories of strict liability includes:
1. Keeping Wild Animals: Anyone who keeps a wild animal will be held
responsible for any harm that the animal may cause another person.
2. Ultra hazardous Activities: Activities such as transporting volatile
chemicals and using explosives are considered strict liability by the
court when someone is injured.
3. Consumer Product Liability: If a product is defective, causes injury,
and makes the product dangerous, the manufacturer or seller of the
product will be liable under strict liability.
For understanding it better we have case of MC Mehta vs. Union Of
India, 1987. The Supreme Court applied a stricter version of the rule of
strict liability in the case of MC Mehta v. Union of India (1987). In this
case, harmful Oleum gas had escaped from a factory owned by Shriram
Foods & Fertilizer Industries. The gas had caused a lot of damage to
people and industries nearby.
Q.34 What is “Absolute Liability”?
Ans. Absolute Liability: There are certain activities which are very dangerous
that they constitute a constant threat to person and property. The law
may handle such situations in two ways. The law might prohibit them
altogether. It may ask them to carry on for the sake of society but only
in accordance with statutory rules and provisions which lays down
safety measures and provides for sanctions for non-compliance through
the way of the doctrine of ‘Strict liability’. In this article, we will look at
another concept of ‘Absolute Liability’. The concept of absolute liability
evolved in India after the case of M.C Mehta vs Union of India famously
known as Oleum Gas Leak case. This is one of the historic cases in the
Indian Judiciary. After the Bhopal gas leak case many people lost their
lives and are suffering from some of the fatal diseases through the
generation and because of this there was an urgent need to develop a
rule under strict liability which had no exceptions available to the
defendant to escape from the liability. It was propounded by the Supreme
Court that where an enterprise is engaged in a hazardous or inherently
dangerous activity and if any harm results to anybody on account of
the accident in operation, the enterprise would be held strictly and
absolutely liable to compensate all those who are affected by the
accident.
Q.35 Explain the “Doctrine of Pigeon hole theory”.or “Salmond’s theory of
law of torts”.
Ans. Pigeon hole theory is one of the very profound theories in the field of
law especially, in the law of torts. This theory is given Salmond. There
were many different theories regarding tortious liability different people
have penned different opinions. But there are two major theories which
are based on the basic Principle of liability in the law of tort or torts.
• Wider and narrower theory: under this theory, all the wrongs that are
committed by one party to another is considered to fall under the law of
tort, without any proper and legal justification.
• Pigeon hole theory: many such torts are present which does not fall
under the liability of torts.
Pigeon Hole Theory or Salmond’s theory of the law of torts: According
to Salmond if one person commits any wrong and that wrong can be
placed in a pigeon hole or he opined that there is no general principle
and if the plaintiff can by any mean put that wrong in the pigeon-hole
which has all the labelled torts, then the plaintiff could succeed.
He also states that the way criminal law has certain offences which are
clearly listed similarly to torts law should also have certain injuries that
are legally verified and justified. There is no general principle in case of
torts neither in one or another case.
Q.36 What is “Volenti non fit injuria”?
Ans. Meaning: Volenti non fit injuria is a common law doctrine which states
that if someone willingly places themselves in a position where harm
might result, knowing that some degree of harm might result, they are
not able to bring a claim against the other party in tort.
In the law of torts, there is a duty on every person to act with reasonable
care in order to avoid any harm which may occur due to their failure of
taking such care. For e.g., If a person is driving his car, he has a duty to
drive the car safely and within speed limits so that no accident occurs
which can also harm any other person.
Illustration: If A has a bike whose brakes do not work and B knowing
about the conditions of the bike still chooses to sit on it with A driving
it and due to the failure of such brakes they both sustain injuries in an
accident, B cannot claim relief from A because he had voluntarily
consented to sit on the bike.
Case law on Volenti non-fit injuria:
Padmavati v. Dugganaika: While the driver was taking petrol at the
petrol pump, two strangers took a lift in a jeep. Suddenly, the front-
wheel failed and the Jeep became uncontrolled, both the strangers were
thrown away, one of them instantly died and another was injured. Here
plaintiff was not held liable because strangers voluntarily took lift.
Q.37 What are “Damages”?
Ans. Meaning of Damages in Tort: Damages are the monetary compensation
which is awarded by the Court to the plaintiff so that he can be enabled
to make up for the loss which he has suffered because of the tort
committed by another person. Damages, in a legal sense, is the sum of
money the law imposes for a breach of duty or violation of some right.
More appropriately, damages are money claimed by, or ordered to be
paid to, a person as compensation for loss or injury. Generally there are
two categories of damages:
1. Compensatory Damages: Compensatory damages are awarded to help
the plaintiff to reach his original position at which he was before the
tort was committed against him. These damages are not awarded to
punish the defendant but to restore the plaintiff to his previous situation.
These damages are very helpful in cases of monetary losses in which
the amount of loss can be easily calculated and therefore that amount
can be ordered to be paid to the plaintiff so that he can replace the
damaged product or goods with such amount.
Illustration: K takes T’s bike and due to his rash driving the bike gets
damaged. Here K can be awarded compensatory damages in which the
amount for repairing the bike will be payable to K by T so that the bike’s
condition can be restored back to its original state.
2. Punitive Damages: These damages are also known as exemplary
damages and the purpose of these damages is to punish the defendant
and to make an example of him so that others are deterred from committing
the same act as he did. Thus, whenever a Court feels that the act of the
defendant was severely gross, it awards punitive damages against him
to the plaintiff.
Illustration: A company advertises that its pill will help in quick weight
loss and is made up of natural ingredients, as a result, the plaintiff
purchases it. But due to the pills containing certain chemicals, it makes
the plaintiff severely ill. Here the Court can not only allow compensatory
damages to the plaintiff but because of the company’s false claims, it
can also award punitive damages so that it does not repeat the act
again.
Q.38 What are extra judicial remedies in tort?
Ans. Extra Judicial Remedy: When a person can lawfully avoid or remedy
himself without the intervention of courts, the remedies are called extra-
judicial remedies. In this, the parties take the law in their own hands.
Types of Extra Judicial Remedies are:
1. Expulsion of trespasser: A person who is lawful possessor of an
immovable property and if his property is occupied by any trespasser,
he can expel the trespasser from his own property. Aggrieved party can
also use legitimate force to expel the trespasser from his property.
Illustration: A trespasses into B’s property. B has the right to use
reasonable force to remove him from his property and re-enter himself.
2. Re-entry on land: A person whose property has been wrongfully
dispossessed by any trespasser, he can remove him and re-enter his
property again. He can also use a reasonable amount of force against
the trespasser.
3. Re-caption of goods: Owner of goods is entitled to recapture his/her
goods back from the person who unlawfully possessed it. He can use
legitimate force to recapture his goods.
Illustration: If A wrongfully acquires the possession of B’s goods, B is
entitled to use reasonable force to get them back from A
4. Abatement: In case of nuisance, be it private or public, a person (the
injured party) is entitled to remove the object causing nuisance.
Illustration: A and B are neighbours. Branches of a tree growing on A’s
plot enter B’s apartment from over the wall. After giving due notice to
A, B can himself cut or remove the branches if they’re causing him
nuisance.
5. Distress Damage Feasant: It is a remedy by which a person can detain
the cattle or things which entered on his land and caused any harm.
Such detention can be made till he receives damages from the owner of
such cattle or things and is responsible to take care of those cattle or
things.
Q.39 Define “Negligence” and its types.
Ans. In the general sense, the term negligence means the act of being careless
and in the legal sense, it signifies the failure to exercise a standard of
care which the doer as a reasonable man should have exercised in a
particular situation.
Definition: According to Winfield and Jolowicz, Negligence is the
breach of a legal duty of care by the plaintiff which results in undesired
damage to the plaintiff.
There are mainly 4 types of Negligence:
1. Comparative Negligence: In the case of comparative negligence, the
plaintiff (i.e., the injured party suing the defendant), is partially
responsible for the harm done to himself. Depending on the percentage
of involvement, the plaintiff might or might not get compensated for the
damage done.
For example, if the judge assigns 70% fault to the defendant and 30%
to the plaintiff, the plaintiff may only be able to recover 70% of the
damages, rather than the full 100%.
2. Contributory Negligence: Where comparative negligence allows for
compensation even if the plaintiff was partially responsible for his or
her injuries, contributory negligence does not. In the case of contributory
negligence, the plaintiff will not be eligible for compensation, even if
their involvement was 1%. Contributory negligence basically means
ignorance from both the parties involved.
For e.g. If a person is driving a car without any breaks met with an
accident with another person who was driving on the wrong side of the
road. This results in contributory negligence.
3. Vicarious Liability: Vicarious liability means the liability of a person
for an act committed by another person and such liability arises due to
the nature of the relation between the two. For e.g. A, is a driver who
works for B and while driving B’s car for taking him to his office, he hits
C, a pedestrian due to his negligence in driving. In such a case even
though B was not driving the car he will still be liable for the accident
which was caused due to the negligence of A.
For e.g. Vicarious Liability arises in relations of Master and Servant,
Principal and Agent, Company and its directors, Partners in a partnership
firm.
4. Gross Negligence: Gross negligence is the most serious type of
negligence and involves such reckless behaviour that no reasonable
person would ever commit it. Personal injury lawsuits involving gross
negligence are most common in cases where there have been seriously
violent actions or in medical malpractice cases where the defendant
acted without any lack of concert for the patient and their wellbeing.
Examples of gross negligence include: A driver speeding in an area
with heavy pedestrian traffic. A doctor prescribing a patient a drug that
their medical records clearly list that they are allergic to. Nursing home
staff failing to provide water or food to a resident for several days.
Q.40 What is “Contributory Negligence”?
Ans. Contributory negligence basically means ignorance from both the
parties involved. If a person is driving a car without any breaks met
with an accident with another person who was driving on the wrong
side of the road. This results in contributory negligence. It’s a defence
available to the defendant in case of contributory negligence which
prevents the plaintiff to get compensation.
Negligence ordinarily means breach of a legal duty to care but when
used in the expression contributory negligence it does not mean breach
of any duty it only means failure by a person to use reasonable care for
safety of either himself or his property.
Elements of “Contributory Negligence” are:
1. Firstly, it must be shown that the plaintiff was exposed to some
unreasonable risk against which a reasonable person would take
precautions.
2. Then it must be shown that the safety device in question is generally
effective either in reducing the risk of an accident, or alternatively in
reducing the damage that would normally result if that risk materialized.
3. Thirdly, it must be shown that the device was available to the plaintiff,
but that the plaintiff did not make use of it.
4. Finally, it must be shown that the [plaintiff ‘s negligence in failing to
use the device in fact caused the plaintiff injury to be worse or, put
another way, that the device if used would actually have prevented
some of the resulting damage.
Q.41 What do you mean by Private Defence?
Ans. Right of private defence of body and property is the inherent right of an
individual which must be encouraged in every citizen of the society in
order to maintain fundamental freedom in the society. As described
under criminal law self-help is the first rule and condition of law. This
right basically states that every individual has the right to protect himself
and his property from any external threat.
The Legal Definition of Private Defence: This right is an affirmative
defence which is used in a situation which possesses imminent threat
or danger to a person’s life or property. It gives liberty to a person, but
when that liberty is used for committing crimes or the right of private
defence is used as means to give justification for any act forbidden by
law the state has the power to impose severe punishment over such
activities. For e.g. If A (wrongdoer) in a dispute with B tries to kill B. B
has every right to protect himself if there exists any apprehension of
threat or danger to life.
Private defence is a recognised right and is sanctioned by law. Under
section 96-106 of IPC(India Code: Indian Penal Code, 1860) there are
laws governing the right of private defence.
1. Section- 97, 98, 99 deals with both the aspect of right to defend body
and property.
2. Section- 100, 101, 102, 106 deals with the right to defend the body.
3. Section-103, 104, 105 deals with the right to defend property.
Q.42 Define the maxim,”Injuria sine damnum”.
Ans. Injuria sine damno is a violation of a legal right without causing any
harm, loss or damage to the plaintiff and whenever any legal right is
infringed, the person in whom the right is vested is entitled to bring an
action. Every person has an absolute right to his property, to the
immunity of his person, and to his liberty & infringement of this right is
actionable per se. A person against whom the legal right has been
infringed has a cause of action such that even a violation of any legal
right knowingly brings the cause of action. The law even gives the
liberty that if a person merely has a threat of infringement of a legal right
even without the injury being completed, the person whose right has
been threatened can bring a suit under the provisions of Specific Relief
Act under Declaration and injunction.
Case law: Bhim Singh vs. State of J. & K, here in this case the petitioner
was an M.L.A. of J. & K. parliamentary assembly. While he was going
to attend the assembly session, police there wrongfully arrested him.
He was not even presented before the magistrate within the stipulated
time. Resultant was that the person was wrongfully deprived of his
legal right to attend the meeting and moreover his fundamental right i.e.
art 21 of the constitution was also violated. It was held that the
respondent was responsible, and the petitioner was liable to receive
Rs. 50,000 from the defendant. In case of Injuria Sine Damno the loss
suffered is not any physical loss but due to the violation of legal right.
Therefore, damages received by the aggrieved party is because some
kind of loss is being suffered, and hence the amount for damages are
determined just to compensate the victim. The amount for compensation
can even be rs. 5.
Q.43 Define “damnum sine injuria”.
Ans. Damnum Sine Injuria is a maxim, which refers to injury which is being
suffered by the plaintiff but there is no violation of any legal right of a
person. In such circumstances, where there is no violation of the legal
right of but the injury, or damage is being suffered by the plaintiff, the
plaintiff can’t bring an action against the other for the same, as it is not
actionable in law, unless there is some infringement of a legal right is
present. Damnum Sine Injuria, the literal meaning of the word refers to
loss or damage in terms of money, property or any physical loss without
the infringement of any legal right. It is not actionable in law even if the
act so did was intentional and was done to cause injury to others but
without infringing on the legal right of the person.
Case law: Gloucester Grammar School Case: The defendant was the
schoolmaster intentionally opened the school in front of the plaintiff’s
school, causing damage to him. As due to an increase of competition
the plaintiff has to reduce their fees from 40 pence to 12 pence per
scholar per quarter. It was held that even though the plaintiff has
suffered harm but there was no infringement of any legal right, therefore,
the defendant can’t be held liable.
Q.44 A person who commits tort is known as? And a person against whom
tort is committed is known as?
Ans. The person who commits tort is known as “tortfeasor or wrongdoer”
and where there are multiple individuals involved, then they are called
joint tortfeasors. Their wrongdoing is called a tortious act and they can
be sued jointly or individually. A person against whom tort is committed
is known as plaintiff.
Q.45 Explain the difference between tort and crime.
Ans. Difference between tort and crime:
Tort Crime
A Crime is wrongdoing which A Tort is wrongdoing which
hampers the social order of the hampers the individual or his
society we live in. property
Crime happens mostly It happens mostly due to
intentionally. It is a deliberate act negligence. Tort is
which people do to get some
unlawful benefits
Crime impacts the well-being of Tort impacts the well-being of
society in general. The legal the individual. The aggrieved
bodies try to give proportional party seeks compensation for the
punishment to law offenders in damages
order to maintain peace in society
Crimes are presented in the Torts are presented in the Civil
Criminal Court. Court
Compensation for crimes is Compensation for torts is given
already mentioned in the book of on the basis of the damages to the
law. Whenever the court has to aggrieved party
decide the amount of
compensation, they simply refer to
the law book. In certain cases,
judges use their personal
judgments too.
Q.46 Difference between tort and breach of trust.

Ans. Difference between tort and breach of trust are:
Tort Breach of trust

Tort is a civil wrong. Civil Breach of Trust and other equitable
proceedings shall be instituted obligations are criminal offences,
and are liable for punishment with
imprisonment, or fine or both.
It is n ot codified law. It is codified law.
Motive is irrelevan t. Motive is relevant.
The law of torts in its origin is a part Breach of Trust and other
of th e common law obligations fell exclusively within
the jurisdiction of equity
Tort Breach of trust

The plaintiff and the defendant may The plaintiff and the defen dant
or may not know each other know each other from the
previous to the incidence of tortious beginning. In fact the law of the
liability. trust is depended upon the trust on
each other
The legal remedy for a tortuous Injunctions, specific restitution of
liability is unliquidated damages. property, and the paymen t of
liquidated sums of money by way
of penalty, etc. are legal remedies
available to the plaintiff. Besides
them, the defendant is also liable
for fine or imprisonment or both
under” the criminal proceedings.
Q.47 Difference between tort and Quasi Contract.

Ans. Difference between tort and Quasi contract:
Tort Q uasi Contract

The plaintiff is entitled to get Injunctions, specific restitution of
unliquidated damages. property, and the payment of
liquidated damages of money by
way of penalty, etc. are the legal
remedies available for plaintiffs
under quasi-con tracts.
In th e law of torts, th e duty is Th ere is a contract implied by the
towards persons generally. Every law, an d therefore contractual
person is un der certain obligations liability is imposed upon the
again st other public, i.e. n ot to defendant. The plaintiff’s rights
cause injury or harm, etc. These against the defendant are “rights
duties and rights of every person in personam.”
is “rights in rem.”
In tortious liability, the plaintiff In quasi-contractual obligations,
and the defendan t may or may not generally, the plaintiff and
knew each oth er before the defendant know each other from
tortious liability arises the beginning, and then it ripens
into contractual liability
Q.48 What is necessity?
Ans. Necessity: Necessity is defined under Section 81 of the Indian Penal
Code as “ Act likely to cause harm, but done without criminal intent,
and to prevent other harm.—Nothing is an offence merely by reason of
its being done with the knowledge that it is likely to cause harm, if it be
done without any criminal intention to cause harm, and in good faith for
the purpose of preventing or avoiding other harm to person or property.”
In the case of Cope v. Sharpe, 1912- The defendant entered the plaintiff’s
land to prevent the spread of fire to the adjoining land and prevent the
damage which could have been caused. The plaintiff, in this case, sued
the defendant for trespass but since the defendant’s act was considered
to be reasonably necessary to save the property and from real and
imminent danger, the court held that the defendant was not liable for
trespass as he had committed an act of necessity.
Q.49 What is Mistake?
Ans. Meaning: A mistake is an error, a goof, a slip-up. When you make a
mistake, you’ve done something incorrectly. Mistake has a lot of uses,
but they all have to do with doing the wrong thing. A mistake in math
class will result in the wrong answer, but a mistake with a gun could get
someone killed.
There are two types of mistake which a normal person can do according
to tort:
1. Mistake of law (Sec.21 of Indian Contract Act, 1872)
2. Mistake of facts ( Sec. 20 & 22 of Indian Contract Act, 1872)
1. Mistake of law: A mistake of fact arises when a person does any act but
misunderstood some fact that negates an element of the crime. A mistake
of fact as a defence applies to various crimes. If the criminal defendant
can prove that he does the act due to a mistake of fact or misunderstood
some fact that negates an element of the crime.
Illustration: Mr.S at crossing did not stop his car at a red signal. Traffic
police charged him for breaking the traffic rules, here Mr. S can not
plead that he was not aware of the law.
2. Mistake of facts: A mistake of fact arises when a person does any act
but misunderstood some fact that negates an element of the crime. A
mistake of fact is just that: a mistake pertaining to some fact. For example,
if you are 35 years old but I think you are 34, I have made a mistake. A
mistake of fact can serve as a defence.
Illustration: A takes his Labrador to the park every day so that he can
play off leash with other dogs. One day, he lost sight of his dog for a
few minutes. Well, he relocated the dog and walked towards the home.
At home, he noticed a mark on the dog and came to the conclusion that
it is not his dog, he mistakenly took another person’s dog with him.
Here, A will not be liable because he gets the defence of mistake of
facts.
Q.50 Explain any 5 defences in tort.
Ans. While learning about tort it is important to learn about the General
Defences in Tort. General defences are a set of defences or ‘excuses’
that you can undertake to escape liability in tort.
Defences of tort are explained below:
1. Private Defence: Among the general defences in tort, private defence
is the most common. When a defendant tries to protect his body or
property or any other person’s property, harms another person by using
reasonable force, under an imminent-danger and where there is no time
to report instantly to the authority, it is Private Defence.
2. Necessity: Necessity knows no law’. In order to avoid or prevent a
great loss or harm, a defendant can cause lesser harm that is justified.
The act of the defendant may be not legal but if it is to avoid major
damage then he can plead this defence.
Essentials of Necessity are:
a. When the defendant acts to avoid a significant risk of harm.
b. His causing of harm should be justified.
3. Inevitable Accident: Accident means an unexpected injury and if the
same accident could not have been stopped or avoided in spite of
taking all due care and precautions on the part of the defendant, then
we call it an inevitable accident. It serves as a good defence as the
defendant could show that the injury could not be stopped even after
taking all the precautions and there was no intent to harm the plaintiff.
Case law: Shridhar Tiwari v. U.P. State Road Transport Corporation
4. Act of God : A very unusual act or an event which is the result of the
natural forces such as earthquakes, volcanic eruptions, floods, droughts,
etc. is coined as Act of God or ‘Vis major’. It is beyond human imagination
and could not be prevented by human intervention.
Case law: “Rylands v. Fletcher”
Essentials of Act of God:
1. The act should result from a natural force.
2. No human intervention.
3. Extraordinary in nature.
5. When a plaintiff himself is the wrongdoer: It is based on the maxim ex
turpi causa that if the plaintiff himself is engaged in the wrongful act or
conduct, then he cannot recover damages. But if a defendant asserts
that the claimant himself is the wrongdoer and not entitled to the
damages, then it does not mean that the court will declare him free from
the liability. If the basis of the action by the plaintiff is an unlawful
contract then he will not succeed in his actions and he cannot recover
damages. Case laws: Bird v. Holbrook and Pitts v. Hunt.
Q.51 Explain the remedies available in torts.
Ans. Introduction: When the aggrieved person is taken back to the position
that they were enjoying before their rights were infringed, they are said
to have been provided with a legal remedy. There are various types of
legal remedies. For instance, if something that belongs to you has been
taken away from you by a party, the court can either ask them to pay
you back in money, or ask them to return your belongings as they were,
and may also punish the party in some cases.
Remedies in tort are of two types: 1. Judicial Remedies 2. Extra-Judicial
Remedies
1. Judicial Remedies: These are the remedies that the courts of law provide
to an aggrieved party. Judicial remedies in tort are of three types mainly:
1. Damages
2. Injunction
3. Specific restitution of property
2. Extra-judicial remedies: If the injured party takes the law in their own
hand (albeit lawfully), the remedies are called extra-judicial remedies.
There are five main types of extra-judicial remedies:
1. Expulsion of trespasser
2. Re-entry on land
3. Re-caption of goods
4. Abatement
5. Distress Damage Feasant
Q.52 Define the Maxim “Respondeat Superior”.
Ans. Meaning: The maxim literally means, “Let the principal answer”. This
legal maxim means “Let the Superior be Liable”. If we have to understand
this maxim then we can take a daily life example i.e. we often see seniors
sending juniors to seek adjournments or file applications. If the junior
is not able to understand the task well, or tries to show his or her legal
skills by making some commitment even if not specifically instructed
by the senior person, then in that case, the superior is responsible to
answer the judge and also to clients.
Why should a master be held liable: In the law of torts, we can find
three reasons mentioned:
1. The status of a servant maintains the marks of history when he was a
slave. The liability of the master for his servant’s torts is one instance.
The notion that servant’s personality was merged in that of his master,
which existed in the era of enslavement.
2. There should be a remedy against someone who is able to pay the
damages, and the master is anticipated to be in a better position than
the servant, for paying the damages.
3. A third reason is expressed in the maxims respondeat Superior And qui
facit per alium facit per se. We have seen the thorough meaning of the
later maxim in previous assessments. Let us now understand what the
former one means.
Q.53 What the main reason for the lack of tort litigation in India?
Or
What are the Specific problems of law of torts in India?
Or
Causes for slow development of law of torts in India .
Ans. Most people in India are unaware of their rights because of their Illiteracy.
Due to lack of political consciousness, most people in India are unaware
of their legal rights. Because of these reasons, they are approaching
civil courts to seek remedies available under law of torts.
1. Illiteracy: Literacy in India is a key for socio-economic progress. Indian
literacy rate has grown to 79.31% (2011 provisional census figures). An
old 1990 study estimated that it would take until 2060 for India to achieve
universal literacy at then-current rate of progress. The literacy rate
grew from 18.33 per cent in 1951, to 74.04 per cent in 2011. It shows that
there is still illiteracy in India. Illiteracy is the main reason for ignorance
of their legal rights.
2. Poverty: Despite being one of the fastest-growing economies in the
world, India has a significant problem of poverty. In 2010, 69% still lived
on less than US $2 a day, and 33% on less than US $ 1.25 a day.
Educational attainment is low, and India holds 1/3 of the world’s illiterate.
Due to poverty, most of the people are not capable of meeting high
costs of litigation for enforcement of their legal rights.
3. Expensive and dilatory judicial system: Besides the problems of poverty
and illiteracy, the other significant problem is that the judicial system in
India is very expensive and it is dilatory. Court fee and Advocates’ fee
is very high. Common man is unable to bear it. Therefore, the poor
people are ready to suffer their violation rights instead of going to
court to seek remedies. If a poor man is ready to fight by paying huge
court-fee in Court for violation of his civil right, after a long gap of
years, he gets only Rs. 500/– Rs.1000/- as damages, he considers that it
as no benefit at all. Tort based cases are being disposed of within one
year in England but in India, it is impossible to dispose of all such cases
within one year.
Q.54 Difference between tort and breach of contract.
Ans. Difference between tort and breach of contract:
Tort Breach of Contract

Law of code is uncodified Law of contract is codified.
law.
In torts duty is fixed by law. In contract duty is fixed by
parties.
In tort there ias duty towards In contract there is duty
persons generally. towards specific person.
In tort there is right in rem. In contract there is right
in personam.
Vicarious liability is possible There is no vicarious liability
in torts. in torts
In torts there is no privity In contract there is privity
between parties. between parties.
In torts minor is liable. A minor 's contract is void.
Q.55 Who is the propounder of Pigeon-hole theory?

Ans. Pigeon-hole theory is given by salmond.
Q.56 Explain the maxim- ‘’ ubi just ibi remedium’?
Ans. This maxim means’’ where there is remedy there is right’’. If a plaintiff
could not fit his claim into one of the recognized forms of action, he had
no remedy.
Q.57 Can a husband be vicariously liable for the tort of his wife in India?
Ans. No, a married woman can be independently sued. In India a husband is
not liable for the torts of his wife. A married woman may be sued and be
sued alone.
Q.58 Under tort what kind of damages are awarded?
Ans. In a tort the damages awarded are unliquidated i.e. damages not
previously fixed but are decided by the courts.
Q.59 In tort the remedy is available against whom?
Ans. A tort is a violation of a right in rem i.e. of a right vested in some
determinate person and available against the world at large.
Q.60 Whether the law of tort is codified or not?
Ans. The law of torts in India is based on English common law which is the
product of judicial decisions. Thus the law of torts is uncodified.
Q.61 Who can file suit under the law of torts?
Ans. In tort, the suit has to be filled by the injured party as plaintiff and no
one else.
Q.62 In law of tort duties are fixed by whom?
Ans. In tort the duties are primarily fixed by the law and a breach of these
duties constitute tort.
Q.63 Which of the following cannot sue for the breach of tort?
Ans. Ordinarily, all persons are entitled to sue in torts. But there are certain
exceptions to this rule viz a bankrupt, a corporation and a child in the
womb.
Q.64 What do you mean discharge and waiver of tort?
Ans. Where there is vested right of action for a tort, such a right can be
discharged in the following ways; I) Death of either party ( II) Waiver (
III) accord and satisfaction IV) release (V) Acquiescence (vi) judgement
recovered and statute of limitation.
Q.65 Who cannot be sued in law of torts?
Ans. There are certain classes of person who cannot be sued viz foreign
sovereigns and ambassadors, public officials, the state. However, the
public officials for their private acts can be sued. Similarly, the state can
be sued for non-sovereign functions. An infant is, in general, liable for
his torts in the same manner as an adult, however where intention,
knowledge or malice is an essential ingredient of liability, infancy can
be a defence. Similarly, a lunatic or drunkard can be made liable. A
married woman may sue and be sued alone. In India, a husband is not
liable for the torts of his wife.
Q.66 How far motive and malice are relevant in an action for tort?
Or
How is intention relevant to torts?
Ans. Motive signifies the reason for conduct and sometimes it is entangled
with the word ‘ Malice’ which has quite a different meaning in law of
tort. Motive generally means what is usually interpreted- evil motive or
it may indicate performance of an act willfully without just cause or
excuse, but the latter meaning is the intention and not motive. Motive is
generally irrelevant in determining whether an act or omission is a tort
or not. If the conduct of a person is unlawful, a good motive will not be
a defence for the defendant and if the conduct being lawful apart from
motive, a bad motive will not make him liable.
The irrelevance of an evil motive was affirmed by the house of lords in
Bradford corporation V. Pickles Lord Macnaghten indicated ‘’ It is the
act not the motive for the act that must be regarded. If the act apart from
the motive gives rise merely to damage without legal injury, however
reprehensible it may be, it will not supply that element’’.
MALICE- the term malice is used in law is ambiguous and possesses
two distinct meanings which require to be carefully distinguished. It
signifies either the intentional doing of wrongful act without just cause
or excuse or action determined by an improper motive.
In Bromage V. Prosser – It was observed that ‘’ Malice In common
acceptance means ill-will against a person, but in its legal sense it
means a wrongful act, done intentionally without just cause or excuse.
Q.67 Difference between malice in fact and malice in law?
Ans. I) Malice in fact or express malice is an act done with ill will towards
an individual. Whereas Malice in law or implied malice means an act
done wrongfully and without reasonable and probable cause. In
order to constitute malice in law the act done must be wrongful or
legal right must be violated.
II) Malice in fact depends upon motive. Whereas malice in law depends
upon knowledge.
Q.68 What does a wrongful act mean in torts?
Ans. An act which prima facie looks innocent may become tortuous, if it
invades the legal right of another person. In Rogers v. Rajendro Dutt,
the court held that the act complained of should ,under the
circumstances, be legally wrongful, as regards the party complaining.
That is it must prejudicially affect him in some legal right merely that it
will however directly, do him harm in his interest is not enough.
Q.69 What does malfeasance mean in torts?
Ans. The term ‘malfeasance’ applies to the commission of an Unlawful act, it
is generally applicable to those unlawful acts, such as trespass, which
are actionable per se and do not require proof of negligence or malice.
Q.70 What does misfeasance and nonfeasance mean in torts?
Ans. The term misfeasance is applicable to improper performance of some
lawful act. The term ‘non-feasance’ applies to the failure or omission to
perform some act which there is an obligation to perform.
Q.71 What is the liability of an independent tortfeasor?
Ans. They are severally liable for the same damage due to an independent
course of action. In Thompson V. London County Council, it was
observed that ‘’ the damage is one but the cause of action which led to
the damage are two’’. Such tortfeasors are therefore, severally liable for
the same damage, not jointly liable for the same tort.
Q.72 What is the liability of several concurrent tortfeasors?
Ans. When the same injury is caused to another person by two or more
people as a result of their separate tortious acts, this results in several
concurrent tortfeasors. Even where successive injuries are caused, the
parties remain multiple, concurrent tortfeasors as long as the negligence
of each is both a factual and proximate cause of each injury.
Q.73 What do you mean by joint tortfeasors?
Or
What is liability of joint tortfeasors?
Ans. When two or more persons join together for common action, then all
the persons are jointly and severally liable for any tort committed in the
course of such action. There were three principles in English common
law with regards to the liability of joint tortfeasors.
Q.74 Explain the three principles of joint tortfeasors?
Ans. The first principle is that the liability of wrongdoers is joint and several
i.e. each is liable for the whole damage. The injured may sue them
jointly or separately.
The second principle was laid down in the case of Brinsmead v. Harrison,
where it was held that a judgement obtained against one joint wrongdoer
released all the others even though it was not satisfied.
The third rule was laid in the case of merryweather V. Nixon, where it
was held that in common law, no action for contribution could be
sustained by one wrongdoer against another, although one who sought
a contribution might have been compelled to pay the full damages. The
reason alleged for this rule was that any such claim to the contribution
must be based on an implied contract between the tortfeasor and that
such a contract was illegally concluded with a view to committing an
illegal act.
Q.75 When does the liability of joint tortfeasors arise?
Ans. Liability of joint tortfeasors arises in three circumstances and they are-
1. Agency: When one person is authorized by another person to do work
on his behalf then any tort committed by that person, the agent then
principal who is authorizing the work will jointly and independently be
held liable. When a tort committed by an agency then both principal
and agent are considered as joint tortfeasors. When any partner commits
tort during the course of the business, the all the other partners are also
considered as joint tortfeasors.
2. Vicarious Liability: When a person is liable for the tort committed by
another person under special circumstances, the liability is joint and
both are joint-feasors. Thus when a servant commits a tort in the course
of employment, the master can be made liable along with the servant as
joint tortfeasors.
3. Joint Action: Where two or more persons join together for common
action then all the persons are jointly and severally liable for the tort
committed in the course of action.
Q.76 What is the waiver of torts?
Ans. There are some cases in which a party is allowed to treat that which is
purely a tort, as having a contract between himself and the wrongdoer,
and is allowed to waive his right to sue in tort, and instead pursue his
remedy for breach of the supposed contract. Thus if a man is wrongfully
deprived of his goods, which are afterwards sold away, he may bring an
action for damage in tort, or he may file a suit for the price received by
the defendant. Such cases, are however not many selects one remedy
and waives the other, he is deemed to have made an election, and he
cannot afterwards pursue the remedy waived by him. It is also to be
noted that the waiver may be either express or implied.
Q.77 What are the two kinds of torts ?
Ans. There are two kinds of torts:
1. Torts which are actionable per se, (i.e without proof of actual damage)-
In the case of torts which are actionable per se, the defendant is liable
merely because he does a particular act, even though the plaintiff has
not suffered the slightest harm. The act of trespassing on another land
is actionable, even though the plaintiff does not suffer the slightest
harm and no actual damage is done to the law. So to trespass to the
person, even though it is only a technical assault which causes no
damage, gives rise to right of action. Similarly libel is actionable per se.
in these cases, the law conclusively presumed damages.
2. Torts which are actionable only on proof of actual damage- However, in
the case of tort which are actionable only to proof of actual damage,
resulting therefrom, the defendant will be held liable only, if, in
consequences of his act, damage is inflicted on the plaintiff. Thus, the
tort of slander is in most cases, not actionable without proof of special
damage.
Q.78 Explain the maxim ‘’ EX TURPI CAUSA NON ORITUR ACTION’’?
Ans. The maxim’’ EX TURPI CAUSA NON ORITUR ACTION’’ means that no
act arises from an immoral or base cause. That is to say, if the damage is
in a manner tainted with immorality, no cause of action can be maintained.
For example, in hegarty V. shine 1878 P was infected by D, her paramour,
with venereal disease, the existence of which was concealed by D. It
was held that P was not entitled to sue D because an action does not
arise from an immoral cause.
Q.79 When a master is not liable for the torts of his servant?
Ans. A master is not liable for the tort of his servant in the following three
cases:
1. When he has temporarily lent his servant to another person.
2. When he is obliged by law to employ a particular person.
3. When the relation between the parties is that of a head of a government
department and an employee in that department.
Q.80 What is the place of motive in determining the tortious liability?
Ans. Relevancy of motive in torts: As a rule, motive by itself, is irrelevant in
the law of torts. An Act which is lawful cannot become unlawful merely
because it is done with an evil motive. It is the act, and not the motive
for the act, that is relevant. If the act, apart from the motive, gives rise
merely to damage without legal injury, the motive, however, reprehensible
it may be, will not supply the missing element. The best illustrative case
on this point is mayor of Bradford Corporation V. pickles.
On the other hand, a good motive will not excuse a person from liability
where the act is prima facie a legal injury. The case of tithes imperiled
well illustrates this principle. However, the case in which a bad motive
may be relevant in law of torts are;- A) Malicious prosecution
B) Defamation C) Conspiracy D) Nuisance.
Q.81 What is public interest litigation?
Ans. Meaning of PIL: PIL is a new technique to assist the poor to approach
the courts and authorities for redressing their grievances. Any person
or association may file such a petition before the concerned court.
Such a person or association need not be an interested person. The
consumer can attain their valuable rights through such litigation in
concession of court fee and other legal formalities of the courts. But
however the Maharashtra state commission is of the view that in view
of the nature of the complaints being in public interest, the individual
person is not competent to agitate against the municipal corporation, if
such an attempt is encouraged by the commission, there will be a flood
of complaints which is likely to put unnecessary strain on the working
of his commission having limited funds and staff.
Q.82 What is malice prosecution?
Ans. If a person lodges knowingly false information with police naming
plaintiff as accused and supported by his false evidence before police
as also in court, he will be held to be prosecuted, malice prosecution.
Q.83 What is tort of nuisance?
Ans. The unlawful interference with a person’s use of enjoyment of land of
some right over or in connection with it is a tort of nuisance.
Q.84 What is tort of conversion?
Ans. A wrong to one’s ownership of goods which involves misuse and
appropriation of goods is conversions.
Q.85 What does action personalis moritur cum persona means?
Ans. A personal right of action lies with the person.
Q.86 Explain accord and satisfaction as used in law of torts?
Ans. Accord means a mutual agreement to pay money of do something as
compensation and satisfaction is actual payment of that sum or doing
of the thing agreed to be done.
Q.87 What is pollock’s statement on ‘ACT OF GOD’ ?
Ans. ‘ACT OF GOD’ is an operation of natural forces so unexpected that no
human foresight or skill could reasonably be expected to anticipate it.
Q.88 How far ‘Doctrine of common Employment’ is a defense for master’s
liability to servant?
Ans. The Doctrine of common employment- prior to 1948, a master was not
liable for negligent harm to his servant by another servant engaged in
common employment with him. In order to successfully plead this
defense, the master has to show-
1. That the servant who is injured as well as the servant causing such
injury were in the service of the same employer.
2. The injured servant was engaged in a common employment in the sense
that the safety of one servant would, in the ordinary and natural course
of things, depend on the care and skill of other servants. However, after
1948, the defense of common employment has been taken away by the
‘Law Reform ( Personal Injuries) Acts, 1948. Under this act, it is no
defense to an employer to contend that he is not liable because the
injury was caused by the negligence of a fellow employee. Any contract
between the master and servant, which excludes the master’s liability
on the ground of common employment, is also declared to be void.
Q.89 What is salmond’s statement on civil tort?
Ans. ‘Tort is a civil wrong for which the remedy is a common law action or
unliquidated damage and which is not exclusively the breach of contract
or the breach of trust or other merely equitable obligation’’.
Q.90 Can there be defamation of a deceased person?
Ans. No, The law of torts makes a distinction between a dead and living
person with regard to defamation. To defame a living person is a tort
while it is not a tort to defame the dead. But a criminal prosecution can
lie for defaming the dead if it would have amounted to defamation if the
deceased were alive and if it is capable of hurting the feelings of his
living relatives.
Q. 91. What is the tort of deceit?
Ans. A tort arising from a false statement of facts which is made by a person
knowingly or recklessly, with an intention that it shall be acted upon by
the other person, and as a result of which that other person suffer
damages. In other words, it is the practice of deceiving someone by
misrepresenting the truth.
Definition of Deceit: According to Winnfield, “Deceit is a false statement
of fact made by A knowingly or recklessly, with intent that it shall be
acted upon by B, who does act upon it and thereby suffers damage.”
For example- Drawing a cheque and presenting it to the creditor with
the knowledge that it will not be paid.
Q. 92. What do you understand by abuse of legal process?
Ans. Malicious prosecution is an abuse of the process of the court by
wrongfully setting the law in motion on a criminal charge. The term
‘Malice’ in common parlance means ill-will against a person. In the
legal sense, it refers to a “wrongful act done intentionally without just
cause or excuse.” The term prosecution means “a proceeding in a court
of law charging a person with a crime”.
‘Malicious Prosecution’ means “a prosecution on a charge of crime,
which is willful, wanton or reckless or against the prosecutor’s sense of
duty and right.”
Definition: Malicious prosecution is the malicious institution against
another of unsuccessful criminal or bankruptcy or liquidation
proceeding without reasonable and probable cause.
In S.T. Sahib v. Hasan Ghani, it was held that, there are five ingredients
to the tort of malicious prosecution, namely:
a. The proceedings must have been instituted, or continued by the
defendant;
b. He must have acted, without reasonable and probable cause;
c. He must have acted, maliciously, and;
d. The proceedings must have been unsuccessful.
e. That the plaintiff has suffered damage.
All the above-mentioned conditions must co-exist before a plaintiff can
succeed.
Q. 93. Whether liability arising out of defamation is a violation of the right to
freedom of speech and expression?
Ans. Defamation V. Freedom of Speech:- In the case of Subramanian Swamy
v. Union of India, a petition regarding the decriminalization of defamation
was filed. The petition challenged the constitutional validity of Section
499 and 500 of the Indian Penal Code, 1860 is an unreasonable restriction
on the freedom of speech and expression. The apex court held that
criminal defamation under Section 499 and 500 did not violate Article
19(1)(a) as it is a reasonable restriction under Article 19(2). The term
‘defamation’ in Article 19(2) includes both civil and criminal defamation.
Section 499 and 500 IPC was held to be non-discriminatory and non-
arbitrary and not violative of the right to equality guaranteed under
Article 14 of the Constitution. While in a democracy an individual has
a right to criticize and dissent, but his right under Article 19(1)(a) is not
absolute and he cannot defame another person as that would offend
the victim’s fundamental right to reputation which is an integral part of
Article 21 of the Constitution.
In Shreya Singhal v. Union of India, the petitioners challenged the
validity of Section 66A of the Information Technology Act (ITA)
contending that it was not a reasonable restriction on the freedom of
speech and expression guaranteed under Article 19(1)(a) of the
Constitution. They argued that the impugned section was
unconstitutional because it provided protection against annoyance,
inconvenience, insult, injury, or criminal intimidation which is not covered
in Article 19(2). The court found section 66A of (ITA) to be vague and
invalidated it on the ground of being violative of the right to freedom of
speech and expression.
Q. 94. When an action will lie against civil proceeding instituted maliciously
and without reasonable and probable cause?
Ans. An action will not lie for civil proceeding instituted maliciously and without
reasonable and probable cause because the unsuccessful defendant
who is unreasonably sued is compensated by a decree in his favour
which gives him his costs against the plaintiff.
But where there is damage to credit or reputation, an action will lie.
Similarly as held in Har Kumar De v. Jagat Bandhu (1926) a suit for
damages for wrongfully obtaining a temporary injunction is maintainable.
Similarly, an action will lie for civil proceedings instituted maliciously
and without reasonable and probable cause where damage resulting
for civil action cannot be compensated by an order for costs - Ah Fong
v. Namkee, (1932).
It should be noted that in an action for the abuse of civil proceedings
the plaintiff will have to prove the same points as in an action for
malicious prosecution.
Lastly, Section 35A of the Code of Civil Procedure provides for
compensatory costs in respect of false or vexatious claims.
In Daya Ram and others v. Ganesh Ram, 2000 - It was held that there is
no express bar to the maintainability of suit against malicious
proceedings claiming damages for malicious proceeding and sub-section
(4) of Section 35-A C.P.C. makes it clear that the amount of any
compensation awarded u/s 35-A shall be taken into account in any
subsequent suit for damages or compensation in respect of claim in
respect of false or vexatious claim or defence. This is a clear indication
that suit is maintainable.
Q. 95. What do you understand by Passing off?
Ans. Passing off means that the defendant-
a. by making a false representation,
b. sells goods,
c. with the intention to deceive the purchaser, and,
d. the plaintiff believes that the goods being sold by are of the defendant.
The protection of commercial goodwill is the objective of the tort of
passing off. It ensures that exploitation of the people’s business
reputation does not take place. “No man can have any right to present
his goods as the goods of someone else” is the underlying philosophy
of the tort of passing off.
Essentials of Passing Off
To make one liable for the tort of passing off, the plaintiff must prove
the following-
1- His goods were known to the public by some mark, distinctive name,
appearance, get up, or badge.
2- The defendant made a spoken or written representation by the conduct
of others or by word of mouth.
3- The use or initiation of the name by the defendant misleads the public
and made them believie that the goods by the defendant were of the
plaintiff.
4- In the ordinary course of business, the defendant’s conduct is likely to
mislead or deceive the public at least in case of unwary or incautious, if
not the intelligent or careful purchaser.
The three fundamental elements often referred to as the Classic Trinity
as restated by the House of Lords in the case of Reckitt & Colman
Products Ltd v Borden Inc. It stated the three elements-
1- Goodwill owned by a trader: Firstly the plaintiff must establish reputation
or goodwill attached to his services or goods in a suit for passing off.
2- Misrepresentation: The plaintiff must prove a misrepresentation to the
public by the defendant. That means that it must be likely to lead the
public into believing that the plaintiff has offered the goods and services.
3- Damage to goodwill: The plaintiff needs to demonstrate that a loss has
been suffered due to a belief that the services and goods by the defendant
are those of the plaintiff.
Modern Elements of Passing off
Lord Diplock in the case of Erven Warnink v. Townend, gave the modern
characteristics of a passing off action. The essential characteristics
are-
1. Misrepresentation.
2. Made in the course of trade by a person.
3. The ultimate consumers of goods or services or to prospective
customers of his or supplied by him.
4. That is calculated as such to injure the goodwill or business of another
trader.
5. That causes actual damage to the goodwill or business of the trader by
whom the action is brought.
Q. 96. Why the Consumer Protection Act, 1986 was enacted? What are the
objects of the Act?
Ans. The Consumer Protection Act of 1986 consisted of several major
procedural defects which are proposed to be resolved in by the 2019
Law. In order to further boost public protection, the 2019 Act introduces
a series of steps and tightens current laws contained in the 1986 Act.
The Consumer Protection Act 2019 brings about fundamental changes
to the existing 1986 Act; however, it also envisages a Central Consumer
Protection Authority and vests power and control in this authority
without proposing adequate administrative safeguards.
The object of the Consumer Protection Act, 2019, is to save the rights of
the consumers by establishing authorities for timely and effective
administration and settlement of consumers’ disputes.
Q. 97. What Consumers Rights are guaranteed under Consumer Protection
Act, 2019?
Ans. Consumer is having the following six consumer rights under the Act
CONSUMER RIGHTS
Consumer rights is an insight into what rights consumer holds when it
comes to seller which provide the goods:
1. Right to Safety: It means right to be protected against the marketing of
goods and services, which are hazardous to life and property. Before
purchasing, consumers should insist on the quality of the products as
well as on the guarantee of the products and services.
2. Right to be Informed: It means right to be informed about the quality,
quantity, potency, purity, standard and price of goods so as to protect
the consumer against unfair trade practices.
3. Right to Choose: It means right to be assured, assured, wherever
possible of access to variety of goods and services at competitive
price. This right can be better exercised in a competitive market where a
variety of goods are available at competitive prices
4. Right to be Heard: It means that consumer’s interests will receive due
consideration at appropriate forums. It also includes right to be
represented in various forums formed to consider the consumer’s
welfare.
5. Right to Seek Redressal: It means right to seek redressal against unfair
trade practices or unscrupulous exploitation of consumers. It also
includes right to fair settlement of the genuine grievances of the
consumer.
6. Right to Consumer Education: It means the right to acquire the
knowledge and skill to be an informed consumer throughout life.
Ignorance of consumers, particularly of rural consumers, is mainly
responsible for their exploitation.
Q. 98. What are the aims and objectives of amendments made to the Motor
Vehicles Act, 1988 by the Motor Vehicle ( Amendment ) Act, 2019?
Ans. With rapidly increasing motorisation, India is facing an increasing
burden of road traffic injuries and fatalities. The road transport sector
also plays a major role in the economy of the country. Numerous
representations and recommendations in the form of grievances and
suggestions from various stakeholders were received by the Central
Govt., citing cases of increase in road accidents, delay in issue of driving
licences, the disregard of traffic rules and regulations, etc. Therefore, in
order to improve road safety and the transport system, it became
necessary to amend the Motor Vehicles Act, 1988 (the Act) to address
safety and efficiency issues in the transport sector. Hence, the
amendments introduced by the Motor Vehicles (Amendment) Act, 2019
(i.e. 2019 Amendment Act).
The amendments address “the issues relating to road safety, citizen
facilitation, strengthening public transport, automation and
computerisation”. The amendments mainly focus on issues relating to
improving road safety, citizens’ facilitation while dealing with the
transport department, strengthening rural transport, last mile
connectivity and public transport, automation and computerization and
enabling online services. While replying to the debate on the Motor
Vehicles (Amendment) Bill, 2019 in Rajya Sabha on 31-7-2019, the
Minister of Road Transport & Highways said that the objective of the
amendments was to provide an Efficient, Safe and Corruption Free
Transport System in the Country.
The amendments inter alia provide for the following, namely—
a) to facilitate grant of online learning licence;
b) to replace the existing provisions of insurance with simplified provisions
in order to provide expeditious help to accident victims and their families;
c) to increase the time limit for renewal of driving licence from one month
to one year before and after the expiry date;
d) to increase the period for renewal of transport licence from three years
to five years;
e) to enable the licensing authority to grant licence even to the differently
abled persons;
f) to enable the States to promote public transport, rural transport and
last mile connectivity by relaxing any of the provisions of the Act
pertaining to permits;
g) to increase the fines and penalties for violation of provisions of the
Act; and
h) to make a provision for protection of Good Samaritans.

Q.1 Discuss briefly the Original Law of Torts. How has it developed to its
present status?
Or
Discuss briefly the origin and development of the Law of Torts in
India?
Ans. It is difficult to give a definite and legal definition of the Law of Torts.
Innumerable jurists have attempted to define Law of Torts, but not a
single definition is complete.
According to Dr. Winfield, “Tortious liability arises from the breach
of a duty primarily fixed by law; this duty is towards persons generally
and its breach is redressible by an action for unliquidated damages.”
The Law of Torts has been always an intricate and complicated law
immensely involved in human life. Indian Law of Torts derives its
origin from the English Law of Torts prevalent in England. But for a
few exceptions either the English Law of Torts has been enforced in
India or its enforcement has been contemplated. It is obvious that the
Law of Torts which was. enforced in India during the British period
was practically based - on the common or general English Law of Torts
which was utilised keeping in view Indian conditions, and needs and
circumstances. In India such legal principles are not used as are not in
harmony with the Indian mode of life and Indian customs and traditions.
(Refer to Naval Kishore Vs. Rameshwar, A.I.R. 1955, All. 594)
Origin and Development of Law of Torts may be elaborated as below:
(1) The Law of Torts is based on English Common Law: Law of Torts is
based on the Common Law of England which is neither written nor
codified. In England during the early times there was no difference
between a tort and a wrong. There was no legal classification of offence
(crime), tort or breach of contract. In the 14th century the success of a
proceeding depended on the success of a writ. Now-a-days in English
legal pleadings emphasis is laid on the presentation of meaningful
facts (authentic facts) and the Common Law of England include Judicial
precedents. Since the Law of Torts is unwritten and in the cases pleaded
before the courts the precedents have no uniformity. Therefore in
such cases judges give their judgments on the basis of the exercise of
their discretion and conscientiousness. In different cases different
principles are laid down or enunciated. Consequently, in their principles
there is the dearth or deficiency of uniformity. It was because the
principle laid down in one case was rarely established in any other
case. As an illustration or a precedent was not attached much
importance by the Judges. Under such circumstances it was difficult
to give a complete and legal definition of Law of Torts.
(2) Based on Procedural Law: The Law of Torts is based on procedural
Law. It is evident that in England Common Law is even unwritten. In
the beginning there were only a few torts and the suitor had to select
one of them to base his case on for his proceedings. If he failed to
establish his case on the recognised basis of accepted torts, then it
was considered that the plaintiff had no legal complaint against the
defendant, because remedies were not available with him for new types
of damages. Every court decided the case on the basis of the exercise
of its discretion; consequently, therefore there was legal indefiniteness
about law. British Parliamentary enactments were used in India
according to the Indian conditions, customs and usages. If it so
happened that on some issue there was no statutory law, in that case
principles of justice equity and good conscience were made use of.
Therefore, it is difficult to define the Law of Torts completely and
precisely, because on account of the shortage of written legal doctrines,
its subjects, area of impact, and its nature etc., are difficult to be
ascertained and specified some definitely.
(3) The Law of Torts is a developing Law: It is difficult to define the Law of
Torts because it is in the course of development. On account of the
changes in the social and economic condition of life there is a
consequent progressive development in the Law of Torts. New
principles are evolving. Ubi remedium ibius (where there is remedy
there is right).
During that period such situations arose when no writ was available
for a particular case. Then the proceedings of the plaintiff, however
justified those were, were futile. Where remedy was ‘not available
through a writ, it was presumed that there was no right. So an effort
was always made to see whether a writ was available in any condition
or not. This condition continued to prevail for centuries.
But this condition no longer exists in England. It has undergone a
change. Now the basis of Law has also changed. Now it is based on
the presumption that ‘where there is a right, there is a remedy.’ (Ubi jus
ibi remedium). Whenever a legal right is violated, the court will find a
remedy for it.
On the basis of facts it is true that the courts due to the recurrence of
torts have widened its range on account of the origin of new torts.
Some torts have been given specific names. ‘Deceit’ was formerly
used in a narrow sense and it was a mode of misuse of legal procedure.
Its development mainly occurred due to the Law of Sale and Law of
Contract.
In the 19th century new torts came into existence such as ‘negligence’.
It came into existence in 1820-30 as an independent Tort. In 1832 and
1833 a few amendments were made and ultimately in 1852 by the
enactment of Common Law Procedure Act, the writs were uprooted
and the Doctrine of Strict Liability was established in 1868 A.D. in the
case of Rylands Vs. Fletcher (1868 L.R.H.L. 330). In the Judicature Act,
1873, the provision was made that in the pleading only material facts or
their gist may be included. In 1964 A.D., Intimidation was recognised
as another distinct Tort in the case of Rookes Vs. Bernard (1964 A.C.
1129 H.L.). In 1964 The House of Lords in Hedley Byrne & Co. Vs.
Heller and Partners Ltd., (1964) A.C. (465), (530), implied that any
monetary loss incurred due to somebody’s negligent statement was
recognised as a tort.
The development of Law of Torts in India as Present:
The condition of Law of Torts is just the same in India as in England or
other countries. It has not yet been completely codified in any country.
India is no exception. The development of the Law of Torts in India
began very late and from time to time with the changes in the Social,
Political and Economic conditions the process of development in Law
of Torts continued. It ought to be kept in mind that in accordance with
the social, economic and political conditions there will be a development
in the Law of Torts. Through industrial and scientific advancements
new types of Torts emerge and consequently new legal principles are
evolved. Indians are also acquiring an awakening in the sphere of Law
of Torts for using their rights.
Basically Indian Law of Torts is based on the principles of English Law
of Torts. First of all, through the charter of 1726 the English in Calcutta,
Bombay and Madras established English Courts, known as the Mayor’s
Courts. It was also made clear in this charter that these courts shall
apply English Common Law and Statutory Law so far as they may be in
harmony with the Indian Social and Economic conditions; with the
elapse of time the Supreme Court and the High Courts came in to
existence.
The High Courts were given two types of Jurisdictions:
(1) They heard the cases as Original Courts,
(2) and, Appellate Courts with regard to Torts. These Courts used the
Common Law of England in the exercise of their Original Jurisdiction.
Regarding other courts there was the provision that in a case if
Statutory Law or Customary Law was not applicable they were advised
to make use of the principles of justice equity and good conscience. In
the disputes before the court there was no definite Law to decide the
disputes. Regarding equity and good-conscience the Privy Council
opined that under these conceptions the principles of those English
Laws come which are in accordance with Indian society and conditions
and can be applied; therefore, regarding marriage, succession, and in
connection with religious traditions etc., justice was done according
to Personal Laws, i.e., by the Hindu Law and the Muslim Law.
For the application of the principles of Justice, Equity and Good-
conscience, it is not essential that they should be in harmony within
the law but also in harmony with other laws.
Thus it is obvious that the Law of Torts used by the English Law
Courts during their rule was procedurally based on the English Common
Law. It was used according to the Indian conditions and directions
after due contemplation. In English Law those principles were
overlooked which were not in harmony with Indian life, customs and
traditions. For instance Allahabad High Court remarked that Section
6(1) (b) of the Law Reform (Married Women and Tortfeasors) Act, 1935
is not necessarily based on principles of equity, justice and good
conscience; so it was not followed. As regards tort for slander, a proof
for special damage for an action for slander was necessary.
Law of Tort after the Attainment of Independence:
Many revolutionary changes occurred in the Law of Torts after we
attained independence. There has been rapid development. In different
regions of India, Different laws have been enacted and they are even
now being enacted. Many jurists have contributed towards its
development. Sir Fredrick Pollock prepared a Bill on the request of
Indian Government which was called “The Indian Civil Wrongs Bill’
but this Bill was not enacted into a Law. Since then no effort has been
made in this country in this direction.
In the Directive Principles of the Indian Constitution there are
provisions for the development of a Civil Law for the entire country
and its object is the sentiment of equal and justified public interest.
English precedents have been guiding the Indian Courts in connection
with Torts and will continue to guide us even in future. But in connection
with the Law of Torts the need for a Code has been long since felt
urgently. For such a code will give the Indian Courts a solid ground for
giving their judgements methodically and they would no longer need
the modification of English precedents for their application to Indian
conditions.
In India although the Law of Torts has not been codified yet, but it has
not been relegated even. In India all the principles of the Law of Torts
have been enacted into Laws from time to time.
In this connection it would be proper to mention the following Acts
enacted by the Indian Parliament
(i) The Fatal Accidents Act, 1955
(ii) The Carriers Act, 1865
(iii) The Specific Relief Act, 1963
(iv) The Easements Act, 1882
(v) The Workmen’s Compensation Act, 1923
(vi) The Patents and Designs Act, 1911
(vii)The Sales of Goods Act, 1930
Q.2 Define ‘Tort?” What are its main characteristics?
Or
What is Tort? Discuss the definition of Winfield and point out its
shortcomings?
Or
Define Tort and explain its essential elements also distinguish it
from breach of contract?
Ans. The word ‘tort’ has been derived from the Latin term ‘tortum’ which
means twist. It impliedly means twisted behaviour, which is known as
tortuous act. In short tort means wrongful behaviour. It is therefore, a
conduct which is unlawful.
Meaning of Tort: In very simple words, whenever a wrong doer violates
some legal rights vested in another person, it is simply said a tort.
For Example: Violation of a duty to injure the reputation of someone
else results in the torts of defamation, Violation of a duty not to defraud
another result in the tort of deceit etc.
Definition of Tort:
1. According to Salmond, “It is a civil wrong for which the remedy is
common law action for unliquidated damages and which is not
exclusively the breach of the contract or the breach of the trust or
other merely equitable obligation,
2. According to Winfield, “Tortious liability arises from the breach of
duty primarily fixed by the law: this duty is towards the persons
generally and its breach is by an action for unliquidated damages.”
3. According to Fraser, “It is an infringement of legal right in rem (whole
world) of a private individual giving a right for compensation at the
suit of injured party.”
4. According to Section 2(m), The Limitations Act, 1963, “Tort means a
civil wrong which is not exclusively a breach of contract or breach of
trust.
Evolution of Law of Torts:
The Torts were formally introduced in England after the Norman
invasion through the courts of Normandy and Angevin Kings of
England. Though Torts are un-codified across many of Common Law
Countries; however it is codified in American Jurisprudence. Law of
Torts is still in the process of development. A tort can take place either
by the commission of an act or by omission of an act.
Torts In India: Torts existed in the Pre-British era in Hindu Muslim
Jurisprudence to deal with fraudulent conduct. But the thing was that
the scope of torts was narrow at that time. British Empire brought the
Common Law and the Tort Law to India by the 3 Presidency Courts
through the efforts of Sir Henry Man and Sir James Stephens. An
attempt was made to codify the torts in India by Sir Federick Pollock
but was not succeeded in doing so as the Indian Civil Wrong Bill was
never legislated.
Liquidated and Unliquidated Damages:
• Damage and Damages:
In damage and damages there is a difference. The damage means legal
loss or violation of legal right i.e. infringement of legal right. Damages
means it is pecuniary or monetary compensation in terms of money.
• Liquidated and Unliquidated Damages:
Liquidated means which is predetermined or pre-fixed which is known
beforehand i.e. in case of breach of contract the damages are known
they are pre-determined by parties, but unliquidated means which are
not determined or pre-fixed i.e. in case of defamation.
Difference between Tort, Contract and Crime
Point of Tort Contract Crime
Difference
Nature Right isrem, Right in person, Right inrem.
of Right it is against it is against a
the whole world. particular person.
Privity There is no There is a There is no
contract contract contract
between the between the between the
wronged and parties. victim and
wrong doer. the criminal.
Consent of Irrelevant, as Relevant, There Irrelevant,
the parties there is no is free consent there is
consent for of both the parties absence of
the tort. to the contract. consent.
Action by Person Person aggrieved By State, may
whom aggrieved can by breach of prosecute the
take action by contract may sue criminal and
filling suit in in Civil Court. initiate action
Civil Court. in Criminal
Court.
Remedy Suit for Suit for liquidated Punishment
unliquidated damage. of fine on
damage. conviction.
What right Civil / Legal Civil / Legal Penal / Legal
is violated
Essential element to constitute tort:
To constitute tort, following three elements are essential:
(a) Wrongful act committed by defendant: The act complained of should,
under the circumstances be legally wrongful as regards the party
complaining, i.e. it must prejudicially affect him in some legal right.
This must be an act or an omission. The act being wrongful in law is
called actus reus. An act which prima facie appears to be innocent may
become tortuous if it invades the legal right of another person e.g. the
erection in one’s own land, or anything, which obstructs light to a
neighbour’s house. Liability for a tort arises therefore when the
wrongful act complained of amounts either to an infringement of a
legal private right or a breach or violation of a legal duty.
(b) Legal Damage: The sum of money awarded by the court to compensate
for damage is called damages. Damage means the loss or harm caused
or presumed to be suffered by a person as a result of some wrongful
act of another. Legal damage is not the same as actual damage. Every
infringement of the plaintiff’s private right or unauthorized interference
with his property gives rise to legal damage. There must be violation
of a legal right in cases of tort. Every absolute right, injury or wrong i.e.
tortious act is complete the moment the right is violated irrespective of
whether it is accompanied by an actual damage. In case of qualified
right, the injury or wrong is not complete unless the violation of the
right results in actual or special damage. The damage deal with two
maxims: Damnum Sine Injuria and Injuria Sine Damno.
(c) Legal Remedy: The essential remedy for a tort is action for damages,
but there are other remedies also e.g. injunction, specific performance,
restitution etc. Further, damages claimable in tort action are
unliquidated damages. The law of tort is said to be a founded of the
maxim- Ubi jus ibi remedium i.e. there is no wrong without a remedy.
Other element in torts:
The following may form part of requirement for a wrong to be tortuous:
a) Voluntary and involuntary acts: Acts and omissions may be voluntary
or involuntary. An involuntary act does not give rise to liability in tort.
b) Mental elements: Plaintiff may be required to show some fault on the
part of the defendant. Fault here means failure to live up to some ideal
standard of conduct set by law. To determine fault, the following may
be proved:
(i) Malice: In the popular sense, malice means ill-will or spite. In Law, it
means a. intentional doing of a wrongful act and improper motive.
Thus a wrongful act done out of malice is an act done wrongfully and
without reasonable and probable cause, dictated by anger or vindictive
malice.
(ii) Intention: where a person does a wrongful act knowing the possible
consequences likely to arise, he is said to have intended that act, and
is therefore at fault.
(iii) Recklessness: where a person does an act without caring what its
consequences might be, he is at fault.
(iv) Negligence: where the circumstances are such that a person ought to
have foreseen consequences of his act and avoided it altogether, he
would be at fault.
Motive: Motive is the ulterior objective or purpose of doing an act and
differs from intention. Intention relates to the immediate objective of
an act while motive relates to the ulterior objective. Motive also refers
to some personal benefit or satisfaction which the actor desires whereas
intention need not be so related to the actor. If the act apart from
motive gives rise merely to damage without legal injury, the motive,
however reprehensible it may be, will not supply that element. The
exceptional cases where motive is relevant as an ingredient are torts of
malicious prosecution, malicious abuse of process and malicious
falsehood.
Malfeasance, misfeasance and nonfeasance: “Malfeasance refers to
the commission of a wrongful act which is actionable per se and does
not require proof of intention or motive. Misfeasance is applicable to
improper performance of some lawful act, for example, where there is
negligence. Nonfeasance refers to the omission to perform some act
where there is an obligation to perform it. Nonfeasance of a gratuitous
undertaking does not impose liability, but misfeasance does.
Case laws:
(a) In the case of Mayor & Bradford Corporation Vs. Pickles, Pickles
was annoyed by the refusal of Bradford Corporation to purchase his
land for their water undertaking. Out of spite, he sank a shaft on his
land, which had the effect of discoloring and diminishing the water of
the Corporation, which percolated through his land. The House of
Lords held that the action of Pickles was lawful and no matter how ill
his motive might be he had a right to act on his land in any manner that
so pleased him.
(b) In the case of Mogul Steamship Co. Vs. Me-Gregory, Certain ship
owners combined together. In order to drive a ship-owner out of trade
by offering cheap freight charges to customers who would deal with
them. The plaintiff who was driven out of business sued the ship-
owner, for loss caused to him by their act. The court held that a trader
who is ruined by legitimate competition of his rivals could not get
damages in tort.
(c) In the case of Glasgow Corporation Vs Taylor (1922), A corporation
fails to put proper fencing to keep the children away from a poisonous
tree and a child plucks and eats the fruits of the poisonous tree and
dies, the corporation would be liable for such omission.
(d) In the case of General Corporation Ltd Vs Christmas (1953), an
employer failed to provide a safety belt for a safe system of work, liable
for consequences of such omission. The wrongful act or wrongful
omission must be recognized by law. Therefore, a mere social or moral
wrong is not enforceable, for example, if somebody fails to help a
starving man or save a drowning child, is only a moral wrong, hence
not liable.
Conclusion:
Tort is a civil wrong, wrongful act committed by a wrongdoer resulting
into injury to the legal right of the wronged person. There must be an
injury to legal right. No action can be taken if no injury to the legal
right. There must be injury to the legal right by the wrongful act. There
must be legal remedy for unliquidated damage.
Q.3 It has been said that “There is no practical difference between the
Law of Torts and the Law of Contracts with regards to remoteness of
damages.”, Discuss the accuracy of this statement with relevant cases.
Ans. Law of Torts and Law of Contracts: Viewed in a broader perspective
there appears to be no great difference regarding the concept of the
remoteness of damages between the Law of Torts and Law of Contracts.
But for a jurist in course of his analysis, the concept will have to be
interpreted on two different lines. Civil injuries, as we all know, are
divisible into two groups : Civil injuries which arise independent of
any contract and civil injuries arising out of a contract. The former is
tort and the latter is the contract. The intention with which a contract
is broken is perfectly immaterial; whereas the intention with which a
tort is committed may fairly be regarded by the court in assessing the
amount of damages.
In both the laws it is necessary that the plaintiff in action for damages,
should establish the necessary connection between the act complained
of and the actual damage alleged. If the damage is not in the eye of the
law sufficiently connected with the wrong or with the breach of
contract, it is also remote with the result that the plaintiff cannot
recover. It must be clearly shown in the case of tort that the wrongful
act or omission is the direct cause of damage. In the case of contract
also it must be established that the damnum flows directly from the
breach of contractual obligation. The remoteness that debars the
plaintiff from getting any damages in an action of tort means the absence
of direct and neutral casual relation between the damages caused and
committed. Section 73 of the Indian Contract Act also refers to the
same thing
When a contract has been broken the party who suffers by such
breach is entitled to receive from the party who has broken the contract,
compensation for any loss or damage caused to him thereby, which
naturally arose in the usual course or things from such breach or
which the parties knew, when they made the contract to be likely to
result from the breach of it. Such compensation is not to be given for
any remote and indirect loss or damage sustained by reason of the
breach.
To a superficial observer thus no line of demarcation can be drawn
regarding the remoteness of damage between the Law of Torts and the
Law of Contracts. But to a keen and careful observer who wants to
penetrate deep into the question a different picture will be unfolded.
In tort law will permit no damage to be recovered except in such cases
as are the direct consequence to the torts. lo bon (in law the immediate
or proximate, not the remote cause of any event is regarded). In tort the
damages are given for consequences of which the defendant had no
notice. The same is not the case in the Law of Contracts. Here the
compensation to be awarded must consist of such damage “as may
reasonably be supposed to have been in the contemplation of both
parties at the time they made the contract as the probable result of the
breach of it.” Hadley v. Baxendale. Now dealing first with the Law of
Torts, when it is said that the damage and loss are not, in Lord
Campbell’s phrase, sufficiently concatenated as “cause and effect”.
The law cannot take into account everything that follows a wrongful
act; it regards some subsequent happenings as outside the scope of
its selection.
In the following cases damages will be considered too remote:
1. Where the defendant’s act is not the direct cause of the damage
suffered by the plaintiff. Damage is available to the plaintiff if the
damage is directly traceable to the negligent act.
2. When the damage is caused by the negligent act of the plaintiff himself,
it cannot be said to be the direct consequence of the defendant’s act
as in the case of contributory negligence.
3. When the independent act of a third party Intervenes between the act
of the defendant and the damage, and when the damage could not
naturally be the result of the defendant’s negligence, it is too remote.
The principle underlying the maxim non tactus interveniens, (the
intervention of human activity between defendant’s acts and its
consequences) is that there are circumstances when are intervening
act of a third person who is not the defendant is in itself enough to
break the chain of causation between the wrongful act and the damages
or the injury sustained by the plaintiff.
4. “Where there comes in the chain of causation the act of a person who
is bound by law to decide a matter judicially and independently, the
consequences of his decision are too remote from the original wrong
which gave him a chance of deciding. Thus, where a person wrongfully
arrests another person and brings him before a magistrate, the person
arresting is not liable if the magistrate sends the man arrested to jail”.
The principle will be clearer by an illustration. There are two leading
cases in this connection, namely, Smith v. L. and S.W. Rly., 1870 and
Polemis v. Furness Withy & Co., 1921 which appear to discard the
reasonable foreseeability test and lay down the rule that a person is
liable for all direct consequences of his act whether a reasonable man
would have foreseen them or not.
In re Polemis 1921 3 K.B. Furness Withy and Co. defendants had
chartered from Polemis (plaintiff) the S.S. Thrasyvoulos. While the
ship was being discharged at a port of call there was petrol vapour in
the hold owing to leakage in certain petrol tins forming of the cargo.
The defendant’s workmen while shifting some of the tins, negligently
let a plank fall into the hold which caused the vapour to ignite, whereby
the ship was totally destroyed by the fire. It was held that the
defendant’s charterers could not escape on the ground of remoteness
of damage from their liability to pay nearly £ 2,00,000, the assessed
value of the ship. The court laid down that a party guilty of tortious act
or omission is liable for all the consequences which result directly
therefrom even though he could not reasonably have anticipated them.
This case overrules Sharp Powell, in which the defendant’s servant, in
breach of a Police Act, washed the defendant’s van in a street and
allowed the waste water to run down the gutter towards a grating
leading to the sewer about twenty five yards off. In consequence of
the extreme severity of the weather, the grating was obstructed by ice
and the water flowed over a portion of the cause-way which was ill-
paved and uneven, and there froze. The plaintiff’s horse being led
past the spot slipped upon the ice and broke its leg. It was held that
this was a consequence too remote to be attributed to the wrongful act
of the defendant.
We accordingly get the rule that a physical see Lisebosch v. Edison,
1933 A.C. 449, consequence is not too remote if it is direct.
In the law of Contracts, on the other hand, in order to determine the
question as to the remoteness of damage, the court has to determine
whether the case comes within any of the following rules:
(1) Whether the damage is the necessary consequence of the breach;
(2) Whether it is the probable consequence; and
(3) Whether it was in the contemplation of the parties when the contract
was made.
Hadley Baxendale, 1854 2 Ex.....341: It is the leading case on which
the principle of the remoteness of damage is based. In this case the
plaintiffs, owners of the flour mill, sent a broken iron shaft to the
defendants (common carriers) to be conveyed by them, and the only
circumstances communicated by the plaintiff to the defendants at the
time the contract was made were that the article to be carried was the
broken shaft of a mill, and that the plaintiffs were millers of that mill. It
was held that those circumstances did not show reasonably that the
profits of the mill must be stopped by unreasonable delay in the delivery
of the broken shaft, for the plaintiffs might have had another shaft or
the machinery of the mill might have been defective in other respects
also. Hence, though the delivery was delayed by the negligence of the
defendants, special damages were not allowed in respect of the loss
caused by the mill having had to stop working.
The rule laid down that the compensation to be awarded must consist
of such damages as:
(a) May fairly and reasonably be arising naturally, i.e., according to the
usual course of the things, from such breach of contract itself.
(b) Such as may reasonably be supposed to have been in the contemplation
of both the parties at the time they made the contract, as the probable
result of the breach of it.
In tort as has been already referred to the following rules are deducible
from the decided cases as to the remoteness of damage :
1. Remoteness is a question of law, not one of fact.
2. Intended consequences are never too remote. “The intention to damage
the plaintiff disposes of any question as to remoteness.”
3. Unintended consequences must be direct, that is direct result of the
defendant’s act and directly caused by it. “Thus the loss of a ship by
collision due to other vessel’s sole fault may force the shipowner in
bankruptcy and that again may not involve his family suffering, loss
of education or opportunities in life, but no such loss could be recovered
from the wrongdoer.” [Liesbosch Dreadger Edison, (1933)].
In short, “the principle with regard to the remoteness of damage is not
the same in actions of contract and of tort. In tort damages are given
for the consequences of which the defendant had no notice. In the
case of a breach of contract the second rule in Hadley v. Baxendale,
may apply”.
Hence, the proposition that “there is no practical difference between
the Law of Tort and Law of Contracts with regard to the remoteness of
damage” is not wholly tenable.
Q.4 Give briefly the different classes of Torts as recognized by Law.
Ans. Classes of Torts: Sir Frederic Pollock, while giving a definition of
Torts, observes :
(A) it may be an act which, without lawful justification, or excuse is
intended by the agent to cause harm, and does cause the harm
complained of;
(B) it may be an act itself contrary to law or an omission of specific legal
duty which causes harm not intended by the person so acting or
omitting;
(C) it may be an act violating and absolutely right (especially rights of
possession and property) and treated as wrongful without regard to
the actor’s intention of knowledge. This, as we have seen is an artificial
extension of the general conceptions which are common to English
and Roman law;
(D) it may be an act or omission causing harm which the person so acting
or omitting did not intend to cause but might and should, with due
diligence have foreseen and prevented;
(E) it may, in special cases, consist merely in not avoiding or preventing
harm which the party was bound absolutely or within limits, to avoid
or prevent.” He gives the following classification of torts :
Group A
Personal Wrongs
1. Wrongs affecting safety and freedom of the person: Assault, battery,
false imprisonment.
2. Wrongs affecting personal relations in the family: Seduction, enticing
away of servants.
3. Wrongs affecting reputation: Slander and libel.
4. Wrongs affecting estate generally; Deceit: slander of title; fraudulent
competition by colourable limitation, etc.: malicious prosecution;
conspiracy.
Group B
Wrongs to Property
1. Trespass: (a) To land; (b) To good.
Conversion and unnamed wrongs ejusdem generis Disturbance of
casement, etc.
2. Interference with rights analogous to property such as private franchise,
patents, copyrights and trade marks.
Group C
Wrongs to person; estate and property generally:
1. Nuisance.
2. Negligence.
3. Breach of absolute duties attached to the occupation of fixed property
to the ownership and custody of dangerous things and to the exercise
of certain public callings.
Professor Winfield gives the following classification.
(A) Wrongs to person:
(1) Death.
(2) Assault and battery
(3) False imprisonment.
(4) Residuary trespass to the person.
(5) Injuries affecting family relations.
(i) Husband and wife.
(ii) Parent and child.
(B) Wrongs to reputation: Defamation including slander and libel.
(C) Wrongs to Property:
(1) Trespass to land.
(2) Conversion and other wrongs to chattel.
(D) Wrongs to person or to property:
(1) Deceit.
(2) Negligence.
(3) Nuisance.
(4) Conspiracy.
(5) Breaches of strict duties.
(E) Wrongs of interference with freedom of contract or of business.
(F) Abuse of procedure:
(1) Malicious prosecution and civil procedure.
(2) Maintenance and champerty.
In fact, it seems to be nearly impossible to give a scientific classification
of tort. No two writers so far have agreed to one uniform scheme of
classification. Sir Henry Finche gives the following classification.
(I) Torts to person

1. Relating to Body: (i) Assault (ii) Battery (iii) Mayhem (iv) False
imprisonment
2. Reputation: (i) Libel (ii) Slander
3. Freedom and Reputation: (i) Malicious Prosecution (ii) Malicious Civil
Action (iii) Abuse of legal process
4. Domestic Rights: (i) Marital rights (ii) Parental rights (iii) Rights to
service.
(II) Torts of property
1. Immovable: (i) Trespass (ii) Trespass ab initio (iii) Dispossession (iv)
Reversionary rights (v) Waste (vi) Rights of Easements (vii) Natural
rights
2. Movable: (i) Trespass (ii) Trespass ab initio (ii) Conversion (iv)
Detention
3. Both Movable and Immovable: (i) Slander of title (ii) Slander of goods
(ii) Maintenance (iv) Conspiracy
4. Incorporeal personal property: (i) Patent (ii) Copyright (iii) Trade mark
(iv) Trade name
(III) Torts to person and property
1. Negligence
2. Nuisance
3. Fraud
This classification of torts seems to be more scientific. Ratan Lal and
Dhiraj Lal also adopt the classification in their famous treatise on torts
on the lines of Sir Henry Finche’s view of the English law. “Our law
regards the person above his possession-life and liberty most-freehold
and inheritance above chattels, and chattels real above personal”.
According to torts, those relating to a person come first; those affecting
property comes second; and those concerning person and property in
common are third.
Q.5 Explain the following maxims of law of Torts with the help of decided
cases:
(1) Injuria sine damnum
(2) Damnum sine injuria.
Ans. (1) Injuria Sine Damno: It means violation of a legal right without
causing any pecuniary harm or loss, is actionable. ‘Injuria ‘means a
tortious act or wrongful act, which violates the legal rights vested in
another person, which need not be wilful and malicious however trivial,
‘Sine’ means ‘without it is the same thing as absque. Damnum means
damage or loss in the substantial sense of money, loss of comfort,
service, health or like. ‘Demno’ is plural of ‘Damnum’ and means damage.
Thus ‘Injuria sine damnum’ means infringement of a legal private right
without any actual loss or damage, the person whose right is infringed
has a cause of action.
The wrongful acts are of two kinds:
First, the wrongful act may cause an infringement of an ‘absolute
private right of an individual. In such a case there is considered to be
injuria and the plaintiff’s action will succeed even if there is no damnum
or damage. An absolute right is one. The violation of which is actionable
per se, i.e., without the proof of any damage. Injuria Sine Demno,
covers such cases. If an absolute right has been violated an action
lies, even though no damage, (no pecuniary loss) has occurred.
Trespass and assault, is a common example of the same.
Second, the wrongful act may cause an infringement of a ‘qualified’
right of an individual. This violation of qualified right is not actionable
per se; it is actionable only on the proof of actual damage suffered by
the plaintiff as a consequence of wrongful act. Such rights are known
as qualified in the sense that mere violation of those rights is not
actionable and the law will provide remedy only when some damage
has also beer, caused to the plaintiff. For example, the proof of special
damage is insisted in case of malicious prosecution, conspiracy, deceit
and nuisance.
Thus, the maxim means that where there is an infringement of an
absolute private right without any actual loss or damage, the person
whose right is infringed, has a direct cause of action. In such a case it
is not necessary for the plaintiff to prove any special damage, because
every injury imports a damage when a man is thereby hindered of his
right. Actual perceptible damage or loss or detriment is not, therefore,
indispensable as the foundation of an action; it is sufficient to show
the violation of a right and the law will presume damage. Trespass to
person or properties are instances of torts and are actionable per se. In
India, the followings principles have been followed:
Illustrations:
Ashby Vs. White (1703, 2 Ld. Reym. 938). In this case, the defendant,
a returning officer, wrongfully refused to register duly tendered the
vote of the plaintiff, who was a qualified voter. The candidate for
whom the vote was sought to be tendered was elected and no loss was
suffered by the rejection of the plaintiff’s vote. It was held that the
action was allowed on the ground that the violation of the plaintiffs
statutory right was an injury for which he must have a remedy and was
actionable without proof of pecuniary damage. Holt C.J. Said :
“If the plaintiff 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; for want of right and want of remedy are reciprocal.........Every
injury impurts a damage, though it does not cost the party one farthing.
For damage is not merely pecuniary but injury imports damage, when
a person is thereby hindered of his right..........”
Martzeti Vs. Williams (1830, I.B.D.Ad. 415). An action will lie against
a banker, having sufficient funds in his hands belonging to a customer,
for refusing to honour his cheque, although the customer did not
thereby sustain any actual loss or damage.
Chunnilal Vs. Kripa Shanker (1906, 8 B.L.R. 838). Where, therefore,
a returning officer, without any malice in or any improper motive in
exercising his judgement, honestly refused to receive the vote of a
person entitled to vote at an election, it was held that no action lay.
Municipal Board of Agra Vs. Asharfi Lal (I.L.R.44 All 302). If any
duly qualified citizen, or person entitled to be on the electoral roll of
any constituency is omitted from such roll so as to be adequate of his
right to vote and so as to give the returning officer an adequate ground
for refusing him the right to vote on election day when the matter has
been decided summarily; and that refusal or omission from the roll, as
the case may be, turns out on investigation to be wrongful, he has
suffered a legal wrong; he has been deprived of a right recognized by
law and he has against the person so depriving him a remedy by what
has always been called ‘an action on the case’ for nominal damages for
the right he Has lost, which may at the discretion of the court be
punitive or exemplary, if the conduct is the result of some malicious
and wicked intention; and also for any pecuniary expenses to which
he may have been reasonably put as a result of the wrong done. Thus,
the Municipal board is liable.
(2) Damnum Sine Injuria: This maxim means that damage or loss or harm
without injury or wrongful act, is not actionable. Mere loss in money
or money’s worth does not itself constitute legal damage. Where there
has been no infringement of any legal right, the mere fact of harm or
loss resulting from an act or omission will not render such act or
omission harmful, although the loss may be substantial or irreparable.
So Damnum Sine Injuria means Damage without injury; i.e., actual or
substantial loss without infringement of any legal right and in such
cases no action lies. Hence, the implication of the maxim is that loss or
detriment is not a ground of action unless it is the result of a species of
wrong of which the law takes cognizance. If there is pecuniary loss to
another without infringement of any legal right, no action will lie. For
example, if a person has a mill, and if his neighbour sets up another mill
and thereby the profits of his mill decrease but he cannot bring an
action against him, though he has suffered actual loss.
Causing damage, however substantial, to another person is not
actionable in law unless there is also a violation of a legal right of the
plaintiff. Common examples are where the damage results from an act
done in the exercise of legal right.
“The mere fact that a man injured by another’s act gives in itself no
cause of action, if the act is deliberate, the party injured will have no
claim in law even though the injury is intentional, so long as the other
party is exercising a legal right”. In Dhanusao Vs. Sitabai (A.I.R. 1948
Nag. 698), wherein it was held that in a suit for damages-based on tort
the plaintiff could not succeed merely on the ground of damages unless
he could show that the damages were caused by a violation of his legal
right.
Illustrations:
Gloucester Grammar School Case (1410, Y.B. Hil-11): The defendant,
a Schoolmaster, set up a rival school to that of the plaintiff. Because of
the competition the plaintiffs have 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 absque injuria, as if I have a mill and my neighbour
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.
Chasemore Vs. Richards (1859, H.L.C. 349): The plaintiff, a mill owner,
had for more than sixty years, utilized the water of a stream which was
chiefly supplied by water percolating through the underground of the
defendant’s land, the defendants dug a deep well in their own land to
supply water to the town of Croydon. The well intercepted the water
and the result was that the volume of the water, and thereby the plaintiff
sustained great loss. It was held that no action lay, as it was a case of
damnum sine injuria. It makes no differences that the use was ancient.
Action Vs. Blundell (1843, 12 M. & W. 324): The defendant carrying
on mining operations in his own land drained away the percolating
water from the land of the plaintiff and thus dried up the plaintiffs well.
Held that no action lay ; for the person who owns the surface may dig
therein and apply all that is there found to his own purposes at his free
will and if in the exercise of such he intercepts or drains off the water
collected from the underground springs in the neighbour’s well, this
inconvenience to his neighbour falls within the description of damnum
absque injuria, which cannot become the ground of action.
Moghul Steamship Co. Vs. Mc Gregor Gow & Co. (1892, A.C. 25):
The defendants were the owners of certain ships and in order to secure
an exclusive trade for themselves between China and Europe founded
an association and made a rule that 5 percent rebate on the freight
shall be allowed to all shippers who shipped agents of members only,
and agents of members should be prohibited, on pain of dismissal,
from acting in the interest of competing ship owners. The plaintiff, the
competing ship owner, sent ships to the landing part to obtain cargoes.
The defendants, therefore, sent more ships to the port and made further
reduction in the freights. The result was that the plaintiff also had to
bring down his rates to the level. They also threatened to dismiss
certain agents, if they loaded plaintiffs ships and circulated a notice
also to customers, that if they loaded plaintiff’s ships, the rebate of 5
percent, would not be allowed to them, the plaintiff’s therefore, brought
a suit for the loss done to the plaintiff’s alleging a conspiracy to injure
them.
It was held, no action lay, for the acts of the defendants were done
with the lawful object of protecting and extending their trade and
increasing their profits, and since they had not employed any unlawful
means, the plaintiff had no cause of action. Neither the act of the
defendant was unlawful nor was the injury caused to the plaintiff’s
was legal injury. Hence the case fell within the maxim, damnum sine
injuria.
Bradford Corporation Vs. Pickles (1935, A.C. 587): The defendants
by making excavations on his own land intentionally intercepted the
underground water that used to flow to the reservoir of the plaintiff.
held that the injury inflicted by the defendant on the plaintiff was no
legal injury and therefore, no action lay, although the sole motive of
the defendant in doing so was to coerce the plaintiff’s land.
Day Vs. Browning (1878, 13. Ch.D. 294): The plaintiff’s house was
called ‘Ashford Lodge for sixty years and the adjoining house
belonging to the defendant was called ‘Ashford Villa’ for forty years.
The defendant altered the name of his house to that of the plaintiff’s
house. The Plaintiffs alleged that this act of the defendant had caused
them great inconvenience and annoyance; and had materially
diminished the value of their property. It was held that the defendant
had not violated any legal right of the plaintiff and hence he was not
liable.
Dickson Vs. Reuter’s Telegram Co. (1977, 3. C.P.D.I.): The defendant
the Telegram Co. negligently delivered a telegram, meant for somebody
else, to the plaintiffs. The telegram contained an order for the shipment
of barley from Valparaiso to England. The plaintiffs believed that the
message was meant for them and shipped the goods, which the sender
of the telegram refused to accept. The plaintiffs having suffered a
heavy loss sued the defendant’s company. It was held that the
defendant company did not owe any duty to the recipient of the
telegram and was not liable.
Indian Cases:
P. Seetharamayya Vs. Mahalakshmamma (A.I.R. 1958, A.P. 103): In
this case, four defendants tried to-ward off the flow of water into their
plot from a stream by digging a trench as well as putting up a bund on
their land. The fifth defendant also, acting independently, put up bunds
on her land to prevent the flow of water to her land. As a result of the
act of these five defendants the rain water now flowed to the plaintiff’s
land causing damage to them. The plaintiff’s requested for mandatory
injunction to demolish the bunds and to fill up the trench on their
lands and permanently prevent them from making bunds or making
such trenches and also for damages amounting Rs. 300 for the loss
already caused due to the flow of the water. The H.C. held that the
owner of the land on or near a river has a right to build a fence upon his
own ground to prevent damage to his ground by the overflow of the
river even though as a result of the dam the overflowing water is
diverted to the neighbour’s land and causes damage. This being a
clear case of a damnum sine injuria the defendants were not liable for
the harm to the plaintiffs.
Anand Singh Vs. Ram Chandra (A.I.R. 1963, M.P. 28): The defendant
built two pucca walls on his land on two sides of his house. The result
of this action was that the water flowing through a lane belonging to
the defendant and situated between the defendant’s and plaintiff’s
houses damaged the walls of the plaintiff, the plaintiff had not acquired
any right of easement. It was held that the defendant by building the
walls on his land had not in any way violated the plaintiff’s right. This
was held to be a case of damnum sine injuria and therefore no right of
action accrued to the plaintiff.
Town Area Committee Vs. Prabhu Dayal (A.I.R. 1975. All. 132): The
Plaintiff constructed 16 shops on the old foundations of the building.
The construction was made without giving notice of intention to erect
the building under Section 178 of U.P. Municipality Act, and without
obtaining necessary sanction under Section 180 of the Act. The
defendant demolished the building. Plaintiff files a suit for damages. It
was held that the defendants were not liable as no ‘injuria’ could be
proved because if a person constructs a building illegally, the demolition
of such a building by the Municipal authorities would not amount to
causing ‘injuria’ to the owner of the property.
Q.6 Explain the Doctrine of remoteness of damages and discuss fully with
case law direct consequences test and foresee-ability test in this
context?
Or
“Theoretically the consequences of any conduct may be endless but
no defendant is responsible and infinitium for all the consequences of
his wrongful Conduct.” Winfield. Discuss the law relating to
remoteness of damages with the help of important cases.
Or
Discuss the Law relating to remoteness of damages with help of leading
cases?
Or
In ‘Wagen Mound’ and ‘Re Pelemis’ cases, the test for remoteness of
damage were clearly established. According to you what test is most
appropriate.
Ans. Doctrine of Remoteness of damages: A person is liable for damages in
law only when his wrongful conduct is directly or immediately related
to the effect of his action. Where the damage is too remote a
consequence of his wrongful act, the injured party cannot recover any
damages. According to the doctrine of remoteness of damage, damages
are said to be too remote, where the causal connection between it and
the defendant’s act is regarded by the law as not sufficiently direct to
create responsibility. This doctrine is also known as “Doctrine of
Natural and Probable consequences’’. It is closely related to the Law
of Negligence and has undergone a change in course of time as a
result of judicial pronouncements. This doctrine is also expressed by
the maxim, “Injure non remota causa sed proxima spectatur.” which
means “in law, the immediate, not the remote, cause of any event is to
be considered.” Therefore, damage must be the direct and natural
result of the defendant’s act. A man is presumed to intend the natural
but not the remote consequences of his act. Damage is said to be too
remote when, although arising out of the cause of action, it does not
immediately and necessarily flow from it, or which could not have
reasonably been foreseen, that the wrong-doer would be made
responsible for it. A man is not liable for all the consequences of his
wrongful act or default. Where the causal connection between the
wrongful act and injury is not sufficiently direct, there is no liability.
Cases where the damage will be considered as too remote: In the
following cases damage will be considered is too remote:
(a) where the defendant’s act is not the direct cause of the damage
sustained by the plaintiff.
(b) when the damage is caused wholly or principally, by the act of the
plaintiff himself, it can not be regarded as the necessary result of the
defendant’s misconduct.
(c) when the damage is the wrongful act of an independent third party,
such as could not naturally be contemplated as likely to spring from
the defendant’s conduct.
(d) where there comes in the chain of “causation” the act of a person who
is bound by law to decide a matter judicially and independently, the
consequence of his decision is too remote from the original wrong
which gave him a chance of deciding.
Illustrative Cases:
(1) Hoobs v. L & S.W. Rly. Co. (1875) LR 10 Q Bill: In this case, the
plaintiff along with his wife took tickets to go to ‘H’ by the last train at
night. By the negligence of the porters they were put into the wrong
train and carried off ‘E’. Since they were unable to obtain
accommodation for the night at, ‘E’, or a conveyance they walked
home, a distance of four miles and the night being wet the wife caught
cold and medical expenses were incurred. It was held that the husband
was entitled to recover damages in respect of inconvenience, but as
regards damages for the illness of the wife it was regarded as too
remote a consequence to make him entitled to recover damages.
(2) Municipal Board, Kheri V. Ram Bharosey, AIR 1961, All 430 : In this
case, the plaintiff filed a suit for damages against Municipal Board, on
allegation that the Board illegally granted a licence to one Teja Singh
to setup a flour mill adjacent to his house with the result that as a
consequence of vibration produced by the mill, his house got badly
damaged. It was held that the Board is not liable. The injury caused to
the house is remote. The injury or damage to the house is not the
direct result of the unlawful act of the Board in granting the licence.
Tests of Remoteness of Damages: There are two main tests to determine
whether damages are remote or not:
(1) The test of direct consequences (or the test of directness)
(2) The test of reasonable foreseeability.
(1) The test of direct consequences (or the test of directness): According
to this test, if a reasonable man could foresee that the plaintiff was
likely to suffer some damage from the wrongful act of the defendant,
he (i.e. the defendant) would be liable for all the direct consequences
of it suffered by the plaintiff and it is immaterial whether a reasonable
man could have foreseen the actual damages suffered by the plaintiff.
In other words, foresight of a reasonable man is relevant to determine
as to whether the defendant owed a legal duty to take care, but it is
irrelevant whether the consequences of the breach of the legal duty
were too remote or not.
The test of direct consequences was firmly established by the Court of
Appeal in Re Polemis Furance Withy & Co. Ltd. (1921) 3 K. B. 560.
Before this case, the prevalent test was that of reasonable foreseeability
laid down in Righby v. Hewitt, (1850) 5 Exch. 240 and Green Land v.
Chaplin, (1850) 5 Ex 242 which was later on accepted as the only
reasonable test to determine the remoteness of the consequences.
Leading cases:
In Re Polemis & Furnace Withy & Co. Ltd.: the defendants chartered
the plaintiff’s vessel to carry a cargo which included a quantity of
benzene or petrol. Some of the petrol cases leaked on the voyage and
there was petrol vapour in the hold. While shifting some cargo at a
port the stevedores employed by the charters negligently knocked a
plank out of a temporary staging erected in the hold, so that plank fell
into the hold and in its fall by striking something caused a spark which
ignited the petrol vapour and the vessel was completely destroyed. It
was held that as the fall of the plank was due to “direct consequences
of the negligence of the charters servants, the charters were liable for
all the consequences of the negligence, even though those
consequences could not reasonably have been anticipated and they
were liable for the loss of the ship.
The meaning of the term “direct consequence” was considered by the
House of Lords in Liebosch Dredger v. Edison, (1933) AC 149 and
their interpretation limited the scope of the rule in Re Polemis case.
(2) The test of reasonable foreseeability: According to this test the
essential point in determining liability for the consequences of a
wrongful act of negligence is whether the damage is of such a kind as
a reasonable man would have foreseen the damages are too remote if a
reasonable man would not have foreseen them.
Leading cases:
Overseas Tankship (U.K.) v. Morts Dock & Engineering Co. Ltd. (The
Wagon Mound Case) (1961) AC 388 at page 417: In this case, Morts
Dock of Engineering Co. Ltd. (M. D. Ltd.) owned a wharf in the port of
Sydney, where a vessel was being repaired and for this purpose some
welding equipment were being used. The Wagon Mound, an oil burning
vessel, was moored at another company’s wharf some 600 feet away
from the respondents’ wharf for taking in bunkering oil. A large quantity
of fuel oil was spilt on the water as a result of the negligence of the
servants of the Overseas Tankship (U.K.) Ld. (O. T. Ltd.) the charterers
of the Wagon Mound, seeing the presence of oil on the water the
manager of the appellant’s company (i.e. 0. T. Ltd.) became alarmed
and stopped welding operation and enquired of the owner of the other
wharf, where the Wagon Mound was moored, as to whether welding
operations could be safely continued. On the basis of this enquiry as
well as his own belief that the fuel oil in the open would not be
inflammable, he gave instructions for welding operations to be resumed.
Despite all the precautions some sixty hours later oil caught fire causing
extensive damage to the wharf of M.D. Ltd.
The Trial Court, following the rule in Re Polemis, held that since O. T.
Ltd. committed negligence in letting oil fall in sea, they were liable for
all the direct consequences of the breach of their duty. On appeal the
judicial committee of the Privy Council disapproved the rule laid down
in Re Polemis and said that the test of “direct consequences” was not
correct.
In this case Viscount Simonds criticised the dictum that foreseeability
is a test for determining whether the defendant owes a duty of care to
the plaintiff and not for determining compensation for it has”
perpetuated an error which has introduced much confusion into the
law, “and that proposition is fundamentally false.
The advantage of the Wagon Mound case is that it provide a readily
comprehensible test which is the same for each of the three component
parts of the tort of negligence-duty, breach and damage. The House of
Lords in Hughes v. Lord Advocate, (1963) AC 837, considered the
Wagon Mound case as correctly laying down the law. The Court of
Appeal also in Doughty v. Turner Manufacturing Co. Ltd. (1964) 2
WLR 240, refused to follow Re polemis and applied the ruling in
Wagon Mound.
Leading Indian Cases:
In Alok Nath v. Guru Prasad, AIR 1963 Orissa 21, the test of reasonable
foreseeability has been considered and adopted. In this case the plots
of land of the plaintiff and defendant were adjacent to each other. In
the midst of the monsoon the defendant dug a tank in the side of his
plot without any embankment and put the earth on the sides. The earth
spread over the plaintiff’s adjoining plot on account of heavy rains
and caused damage to the paddy crop. It was held that on the facts
and circumstances of the case the defendant having not foresee the
consequences of the act, which was, in the course of normal use of his
land, he was not liable.
In Veeran v. Krishna Moorthy, AIR 1966 Kerala 172, a school child
was injured while crossing the road by the defendant’s bus. The
defendant’s bus driver could not see the children of school standing
on the side because of a bus. The Court considered the test of
foreseeability and allowed damages.
Exceptions to the Rule in the Wagon Mound: The rule laid down in the
Wagon Mound case (i.e., reasonable foreseeability as the test of
remoteness) does not apply in the following circumstances:
(i) Where tort is related to strict liability;
(ii) Where the claim is under the Fatal Accidents Act or for loss of services;
(iii) Where claim involves breach of strict statutory duty;
(iv) When the claim is for fraud;
(v) When the damage, which has occurred, although foreseeable, is not
damage of a kind against which it was the duty of the defendant to
guard;
(vi) When the defendant can not be said to have caused the damage,
although that damage was in fact foreseeable, and a duty was owed to
the particular plaintiff; or
(vii) When the damage which has been caused is damage of the same kind
that might have been foreseen, but greater in amount that could have
been foreseen.
Q.7 State the general exception regarding the torts which are not
actionable? With the help of decided cases discuss the exception of
“inevitable accident” and distinguish it with that of “act of God”?
Ans. When a person consents to the infliction of some harm upon himself,
he has no remedy for that in tort. In case, the plaintiff voluntarily
agrees to suffer some harm, he is not allowed to complain of that and
his consent serves as a good defence against him. No man can enforce
a right which he has voluntarily waived or abandoned. When you
invite somebody to your house, you cannot sue him for trespass, nor
can you sue the surgeon after submitting to a surgical operation
because you have expressly consented to these activities. Similarly,
no action for defamation can be brought by a person who agrees to the
publication of matter defamatory of himself.
Many a time, the consent may be implied or inferred from the conduct
of the parties as in the case of Hall v. Brooklands Auto Racing Club [
(1932) All E.R Rep. 208], The plaintiff was a spectator at a motor car
race being held at Brooklands on a track owned by the defendant
company. During the race, there was a collision between two cars, one
of which was thrown among the spectators, thereby injuring the
plaintiff. It was held that the plaintiff impliedly took the risk of such
injury, the danger is inherent in the sport which any spectator could
foresee, the defendant was not liable
The consent must be free
For the defence to be available, it is necessary to show that the plaintiff
consent to the act done by the defendant was free. If the consent of
the plaintiff has been obtained by fraud or under compulsion or under
some mistaken impression, such consent does not serve as a good
defence. Moreover, the act done by the defendant must be the same
for which the consent is given.
For the maxim volenti non fit injuria to apply, two points have to be proved:
1. The plaintiff knew that the risk is there
2. He, knowing the same, agreed to suffer the harm.
If only first of these points is present i.e., there is only the knowledge
of the risk, it is no defence because the maxim is volenti non fit injuria.
Merely because the plaintiff knows of the harm does not imply that he
assents to suffer it.
In Smith v. Baker [(1891) A.C 325], the plaintiff was a workman
employed by the defendants on working on drill for the purpose of
cutting a rock. With the help of a crane, stones were being conveyed
from one side to the other, and each time when the stones were
conveyed, the crane passed from over the plaintiff’s head. While he
was busy in his work, a stone fell from the crane and injured him. The
employees were negligent in not warning him at the moment of a
recurring danger, although the plaintiff had been generally aware of
the risk. It was held by the House of Lords that as there was mere
knowledge of risk without the assumption of it, the maxim volenti non
fit injuria did not apply and the defendants were liable.
Plaintiff the Wrongdoer
The law excuses the defendant when the act done by the plaintiff itself
was illegal or wrong. This defence arises from the Latin maxim “ex turpi
causa non oritur action” which means no action arises from an immoral
cause. So an unlawful act of the plaintiff itself might lead to a valid
defence in torts. This maxim applies not only to tort law but also to
contract, restitution, property, and trusts. Where the maxim is
successfully applied it acts as a complete bar on recovery. It is often
referred to as the illegality defence, although it extends beyond illegal
conduct to immoral conduct. In Bird v Holbrook [ (1828) 4 Bing. 628],
The plaintiff, trespasser over the defendant’s land was entitled to claim
compensation for injury caused by a spring gun use by the defendant,
without notice, in his garden.
Let us consider a situation in which a bridge, under the control of the
defendant, given way when an overloaded truck, belonging to the
plaintiff, passes through it. If the truck was overloaded, contrary to
the warning notice already given and the bridge would not have given
way if the truck was properly loaded the plaintiff’s wrongful act is the
determining cause of the accident.
In above illustration, two situations can arise:
First in which plaintiff is the wrong doer
Second in which defended is the wrong doer
If the plaintiff is the wrongdoer his action will fail and other hands if
the defended is the wrongdoer his act wrongful act is the determining
cause of the accident no of the plaintiff, the defended will be liable for
example in the above illustration if the bridge has been so ill-maintained
that it would have given way even if the truck had been properly
loaded, the plaintiffs action will succeed. Thus, if the plaintiff’s being
a wrongdoer is an act quite independent of the harm caused to him, the
defender cannot plead that the plaintiff himself is a wrongdoer.
Under this defence it has to be seen as to what is the connection
between the plaintiff’s wrongful act and the harm suffered by him. If
his own act is the determining cause of the harm suffered by him, he
has no cause of action.
Inevitable Accident
Accident means an unexpected injury and if the same could not have
been foreseen and avoided, in spite of reasonable care on the part of
the defender, it is the inevitable accident. It is, therefore, a good defence
if the defended can show that he neither intended to injure the plaintiff
nor could he avoid the injury by taking reasonable care.
In Stanley v Powell [1891] 1 QB 86 (QBD)], the plaintiff was employed
to carry cartridge for a shooting party when they had gone pheasant-
shooting. A member of the party red at a distance but the bullet, after
hitting a tree, rebounded into the plaintiff’s eye. When the plaintiff
sued it was held that the defendant was not liable in the light of the
circumstance of inevitable accident.
It may be noted that the defence of the inevitable accident is available
when the event is unforeseeable and consequences unavoidable in
spite of reasonable precautions. Even if the event is like heavy rain
and flood but if the same can be anticipated and guarded against and
the consequences can be avoided by reasonable precautions, the
defence of inevitable accident cannot be pleaded in such case this
view explained by the supreme court in S. Vedantacharya v. Highways
Department of South Arcot (1987 ACJ 783)
Act of God
The act of God or Vis Major or Force Majeure may be dened as
circumstances which no human foresight can provide against any of
which human prudence is not bound to recognize the possibility, and
which when they do occur, therefore are calamities that do not involve
the obligation of paying for the consequences that result from them.
The act of God is a defence used in cases of torts when an event over
which the defendant has no control over occurs and the damage is
caused by the forces of nature. In such cases, the defendant will not
be liable in tort law for such inadvertent damage.
The act of the God is a kind of inevitable accident with the difference
that in the case of Act of God, the resulting loss arises out of the
working of natural forces like exceptionally heavy rainfall, storms,
tempest, tides and volcanic eruptions.
Two important essentials are needed for this defence:
• There must be working of natural forces
• The occurrence must be extraordinary and not one which could be
anticipated and reasonably guarded against.
Working of Natural Forces
Ramalinga Nadar v. Narayana Reddiar (AIR 1971 Ker 197), the
plaintiff had booked goods with the defendant for transportation. The
goods were looted by a mob, the prevention of which was beyond the
control of the defendant. It was held that every event beyond the
control of the defendant cannot be said Act of God. It was held that
the destructive acts of an unruly mob cannot be considered an Act of
God. It was observed that: “Accidents may happen by reason of the
play of natural forces or by the intervention of human agency or by
both. It may be that be that in either of these cases, an accident may be
inevitable. But it is only those acts which can be traced to natural
forces and which have nothing to do with the intervention of human
agency that could be an aid to be acts of God.
Occurrence must be extraordinary
In the case of Nichols v. Marshland [ (1876) 2 EXD 1], the defendant
has a number of artificial lakes on his land. Unprecedented rain such
as had never been witnessed in living memory caused the banks of the
lakes to burst and the escaping water carried away four bridges
belonging to the plaintiff. It was held that the plaintiff’s bridges were
swept by the act of God and the defendant was not liable.
Q.8 Explain the maxim “Volenti non fit injuria”? What are the limitations
of this maxim? Support your answer with the help decided cases ?
Or
“Volenti non fit injuria is a good defence in an action in tort.” Explain
with illustration?
Ans. One of the recognised general defences to liability in tort is that the
plaintiff consented or assented to the doing of an act which caused
harm to him, the defendant would not be liable. This is known as
volenti non fit injuria, or Leave and Licence. This defence is founded
on good sense and justice. One who has or assented to an act being
done towards him cannot, when he suffers from it, complain of it as a
wrong. The question of application of the maxim may arise only if it is
established that a tort has been committed by the defendant. “To a
layman, a person who has consented to the infliction of damage on
himself should not be heard to complain thereafter. As a legal
profession, this simple statement requires drastic qualification.
An important preliminary point is the truism that if a defendant has not
committed any breach of duty, he cannot be liable; in which case a
defence of consent, or indeed any other defence, is irrelevant. The
defendant can avoid his liability if he proves that the plaintiff consented
not only to the physical risk or actual damage but also to the legal risk,
i.e., the risk of actual damage for which there will be no redress at law.
It is easy to prove this consent where the plaintiff has entered into a
contract wherein he has undertaken to bear the risk himself. But it may
also be inferred from the facts and circumstances of the cases even
though there is no contract between the plaintiff and the defendant.
For example, if A and B are competitors in a boxing match, it is implied
that they have consented to bear the risk usually involved. But if one
of the competitors acts against the rule of the game of using violence
beyond what is necessarily required, the maxim of volenti non fit injuria
will not apply. The consent may also be inferred from the conduct of
the parties.
For example, in Imperial Chemical Industries Ltd. v. Shatwell, the
respondent and his brother. James was employed in the appellant’s
quarry. In total disregard of the defendant’s order and also some
statutory regulations, they decided to test some detonators without
taking the requisite precautions. Consequently, the respondent was
injured in an explosion due to the negligence of James. He brought an
action against the appellants (defendant in the trial court) on the
ground that they were vicariously liable for the negligence of James
and breach of statutory duty in the course of employment. It was held
that the appellants were not liable because James would not have been
liable had he been sued. The maxim volenti non fit injuria, applied
because it was clear from the conduct of the respondent that he had
consented to the risk or injury involved. Lord Reid of the House of
Lords observed:
“If the plaintiff invited or freely aided and abetted his fellow servant’s
disobedience, then he was volens in the fullest. He cannot complain of
the resulting injury either against the fellow-servant or against the
master on the Sound of his vicarious responsibility for his fellow-
servant’s conduct.”
As regards the argument that at least as between master and servant,
volenti non fit injuria, is a deed or dying defence. Lord Reid observed:
“That I think is because in most cases where the defence would now
be available it has become usual to base the decision on contributory
negligence. Where the plaintiff’s own disobedient act is the sole cause
of the injury, it does not matter in the result whether one says 100
percent contributory negligence or volenti non fit injuria. It we adopt
the inaccurate habit of using the word “negligence’ to denote a
deliberate act done with full knowledge of the risk it is not surprising
that we sometimes get into difficulties, there is a world of difference
between the two fellow servants collaborating carelessly so that the
acts of both contribute to cause injury to one of them, and two fellow
servants combining to disobey an order deliberately though they knew
the risk involved. It seems reasonable that the injured man should
recover some compensation in the former case but not in the latter. If
the law treats both as merely cases of negligence it cannot draw a
distinction. But in my view law does and should draw a distinction. In
the first case only the partial defence of contributory negligence is
available. In the second volenti non fit injuria, in a complete defence
if the employer is not himself at fault and is only liable vicariously for
the acts of the fellow servant.”
It was also argued on behalf of the respondent that there is a general
rule that the defence of volenti non fit injuria, is not available where
there has been a breach of a statutory obligation. Lord Reid entirely
agreed that an employer who was himself at fault in persistently refusing
to comply with a statutory rule could not possibly escape liability
because the injured workman had agreed to waive the breach. But in
the present case the prohibition testing except from a shelter had been
imposed by the appellants before the statutory prohibition was made
Lord Reid, therefore, held:
“I can find no reason at all why the facts that these two brothers
agreed to commit an offence by contravening a statutory prohibition
imposed on them as well as agreeing to defy their employer’s orders
should affect the application of the principle volenti non fit injuria,
either to an action by one of them against the other or to an action by
one against their employer based on his vicarious responsibility for
the conduct of the other.”
Since the defendant can avoid his liability on the ground that the
plaintiff consented or assented to the risk involved. It is necessary
that the consent must be based on full knowledge of the facts. For
example, in White y. Blackmore the plaintiff’s husband had signed on
as a competitor in an old car race organised by the defendants. For
admission of spectators it was one of the conditions that in case of
any accident, the defendants would not be liable. Since the plaintiff
was one of the spectators, he was allowed admission free of charge
but had to pay for the admission of his family. After taking part in the
race, the plaintiff joined his family to witness another race. Then he
stood just outside the spectator’s rope near the place where two safety
ropes were tied. The wheel of a racing car having got entangled in a
safety rope, he was catapulted about twenty feet and died as a result
of the injury. The plaintiff brought an action to recover damage for
negligence in respect of the death of her husband. The defendant
pleaded that the maxim volenti non fit injuria applies and he was not
liable. The court did not accept this argument and held that the maxim
of volenti non fit injuria did not apply in this case because when the
plaintiff signed as a competitor he did not have full knowledge of the
risk which might arise from the defective lay out of the ropes and that
he had not willingly accepted the risk of injury which could arise from
the fault of the defendants.
The maxim applies, in the first place, to intentional acts which would
otherwise be tortious. For example, a person who trespasses on the
land of another with the knowledge that there are spring guns in the
wood or dangerous spots, cannot claim damages for an injury suffered
by accidentally treating on the latent wire communicating with the gun
and thereby letting it off. In the second place, the maxim applies to
consent to run the risk of accidental harms which would otherwise be
actionable. In such type of harms, in the absence of consent of the
plaintiff, the defendant would be liable for a breach of duty of care.
Consent exempts the defendants from the duty of care and hence
excludes his liability for negligence. Thirdly, consent must be real,
consent under protest or duress is no consent.
Consent to be a valid ground for avoiding the liability of the defendant
must contain certain essential requisites. Consent must be in respect
of some legal act. Consent to illegal act is no consent at all. Besides
this consent must be voluntary. Moreover, consent must be to bear
the legal risk. Mere knowledge of the risk is not the same thing as
consent to run the risk. In other words, there are certain limitations of
the maxim.
Limitations of the maxim
The limitations of the maxim are the following:
(i) Consent must be voluntary and free.
(ii) Knowledge does not necessarily imply assent or consent.
(iii) Consent must not generally be to illegal acts.
(iv) The maxim does not apply to cases of negligence.
(v) The maxim does not apply to rescue cases.
(vi) Unfair Contract Terms Act, 1977.
Q.9 What are the essential conditions for the application of the Rule of
strict liability? What grounds can be taken as defence in a suit for
strict liability?
Or
Critically discuss the Doctrine of Absolute liability with the help of
decided cases?
Or
Explain fully the Doctrine of strict or absolute liability laid down in
the case of Ryland Vs. Fletcher with its exceptions?
Ans. Rule of Strict Liability: In law of torts there may be cases wherein the
defendant may be held liable for the harm caused to the plaintiff
although the defendant neither intends the consequence nor is guilty
of negligence. This is known as strict liability and the principle giving
rise such form of liability was first propounded in the leading case
Rylands v. Fletcher, 1868 LR 3 HL 330.
Facts of Rylands v. Fletcher: Fletcher was working in a coal mine
under a lease. On the neighbouring land, Rylands desired to erect a
reservoir for storing water and for this purpose he employed a
competent contractor, whose workmen, while excavating the soil,
discovered some disused shafts and passages communicating with
old workings and the mine in adjoining land. The shafts and passages
had been filled with loose earth rubbish. The contractor did not take
the trouble to pack these shafts and passage with earth so as to bear
the pressure of water in the reservoir when filled. Shortly after the
construction of the reservoir even when it was partly filled with water,
the vertical shafts gave way and burst downwards. The consequence
was that the water flooded the old passage and also the plaintiff’s
mine, so that the mine could not be worked. The plaintiff sued for
damages. No negligence on the part of the defendant was proved. The
only question was whether the defendant would be liable for the
negligence of the independent contractor who was admittedly a
competent engineer. The defendant in bringing water into the reservoir
was bound to keep it there at his peril and was therefore liable.
Blackburn J. laid down the following proposition of law: “The true
rule of law is, that the person, who for his own purposes, brings on his
lands and collects and keeps there anything likely to do mischief if it
escapes, must keep it at his peril and if he does not do so, is prima facie
answerable for all the damages which is the natural consequence of its
escape.”
The above judgment of Blackburn J. was adopted by the House of
Lords Thus :
“If a person brings or accumulates on his land anything which, if it
should escape may cause damage to his neighbours he does so at his
peril. If it does escape and cause damage he is responsible, however
careful he may have been, and whatever precaution he may have taken
to prevent the damage.”
However, in the House of Lords, Lord Cairns added one more element.
He said that use of land by the defendant should be non natural.
Growing poisonous trees, collection of huge quantity of water; keeping
a lion etc. are non-natural user of land.
Essential Conditions for application of Rule of Strict Liability:
For the application of the rule of strict liability following essential
conditions must be present.
(1) The defendant must have brought on his land and kept there anything
likely to do mischief, if it escapes.
(2) The thing so brought or kept must escape.
(3) The use of such land must be non-natural.
(1) A dangerous thing must be brought or kept on the land: The first
essential condition for the application of the rule is that the defendant
must have brought on his land and kept there some dangerous things
or any thing likely to do mischief if it escapes. The thing may be water
(as in Rylands v. Fletcher), oil, gas, noxious fumes, expulsions,
electricity, vibrations, poisonous vegetation etc. The rule has been
limited to the things which are likely to escape and by escaping do
damage or increase damages to others.
(2) The thing brought or kept must escape: The dangerous thing or
anything likely to do mischief must escape. Mere bringing or keeping
a dangerous thing on one’s land is not an actionable wrong. Liability
in tort arises only when the dangerous thing escapes. In Read v. Lyons
& Co. Ltd. 1947 AC 156, the appellant sustained injuries by an explosion
in respondent’s ammunitions factory while she was performing her
duties. The defendants were held not liable although it was admitted
that his explosive shells were dangerous.
(3) There must be non-natural use of land: In Rylands V. Fletcher, a
distinction between “natural user of land” and “a non natural use” had
been made and it was observed that liability arises out of non-natural
use of land. In this case, storing water was considered to be a non-
natural use of land. This is also may be called as special use bringing
with it increased danger to others.” In Richard’s v. Lothian, 1913 AC
263, it has been held that there must be some special use bringing with
it increase danger to others, and must not merely be the ordinary use
of the land or such a use as is proper for the general benefit of the
community. According to Salmond, it must be an ‘extraordinary’,
‘exceptional’ or ‘abnormal’ user of the land. It is a question of whether
the particular object can be dangerous or the particular use can be
non-natural, and deciding this question all the circumstances of the
time and place and practice of mankind must be taken into consideration.
Exceptions to the Rule of Strict Liability: The following are the exceptions to
the rule of strict liability:
1. Damage due to natural user of the land: Where the damage to plaintiff
is due to natural user of the land, the doctrine of strict liability does not
apply. To understand a natural user of land or a non-natural user of the
land, the negative aspect as to what is a non-natural user of the land
must be understood.
Sochacki v. Sas, (1947) AC 156: B, who was a lodger in A’s house, lit
a fire in his room and went out. While he was out, for some unknown
reason his room caught fire; this fire spread and damage was done to
A’s property in the rest of the house. There was no evidence of
negligence on the part of B. Held B was not liable since his user of the
fire in his grate was an ordinary, natural, proper, everyday use of a
fireplace in a room.
2. Things not essentially dangerous which it is not unusual for a person
to have on his land: The true principle relating to things naturally on
land, was laid down by Lawrence L.I. Barilett v. Pottenham, [(1884)
13 Q.B.D. 130]. Broadly the rule of Ryland v. Fletcher applies only to
things artificially brought or kept upon the defendant’s land, and has
no application to things which are naturally there. Even if an occupier
makes a natural use of the land he will still be liable if he deliberately
causes the escape of things naturally on his land. [Whalley v. Lancashire
Yorkshire Rly, (1884) 13 Q.A.D. 131].
3. Consent of the plaintiff: Where the plaintiff has expressly or impliedly
consented to the presence of the source of danger and there has been
no negligence on the part of the defendant, the defendant is not liable.
This exception merely illustrates the general defence-Volenti non fit
injuria.
4. Common benefit: The rule does not apply to a case where the artificial
work, which causes damage to the plaintiff, was maintained for the
common benefit. Thus no action would be maintained in the case of
ordinary users of land or such use as is proper for the general benefit
of the community. [Richards v. Lothians, (1913) A.C. 263.]
5. Act of stranger: If the harm was due to the act of a stranger, the rule
does not apply. In M.P. Electricity Board v. Shail Kumar [(AIR 2002
SC 551] the Supreme Court observed that an act of stranger is one of
exceptions to the rule of strict liability. But the said exception is not
available where the act of stranger should have been reasonably
anticipated by the defendant. This exception does not also apply to
electricity board in cases of electrocution [M.P. Electricity Board v.
Shail Kumar, AIR 2002 SC 551]. In Box v. Jubba, an overflow from the
defendant’s reservoir was thus caused and he was held not liable, so
too.
6. Act of God: In Nichels v. Marsland, [(1876) 2 Ex. D, 1], the principle of
act of God has been defined, by Pollock as “an operation of natural
forces so unexpected that no human foresight or skill could reasonably
be expected to anticipate it.”
7. Statutory Authority: Defence that the act was done under the authority
of a statute is a valid defence in an action of Strict Liability [Longhurt
v. Metropolitan Waterboard (1946) 2 All. E. R.838].
8. Default of the plaintiff: In Ryland v. Fletcher, this was noticed as a
defence. If a person knows that there is a danger of his mine being
flooded by his neighbour’s operations on adjacent land and caused
the danger by doing some act which rendered the flooding probable,
he cannot complain. [Ponting v. Noakes, (1894) 2 Q.B. 291]
Applicability of the Rule of Strict Liability in India
The rule laid down in Rylands v. Fletcher, with all the exceptions
engrafted upon it, has been accepted in India also, but in the modified
form. In case of irrigation tanks in this country which are maintained
either under statutory authority or to maintain which the defendant
has acquired right by prescription or custom the rule has been made
inapplicable. The reason for this is that storing water in irrigation tanks
for agricultural purposes is a natural and lawful user of property and
the submersion of the neighbouring land when they are full, is a usual
and customary feature. The defendant in such cases will be liable only
when his negligence to take reasonable precautions to prevent that
damage has been proved.
In U. P. Power Corpn. v. Brijendra Singh, AIR 2009 All. 56 (D.B.);
death of an elephant occurred due to electrocution while walking on
road. The Allahabad High Court applied the principle of strict liability
and held that Power Corporation was liable to pay compensation. It
again observed that if an enterprise is permitted to carry on a hazardous
or inherently dangerous activity for its profits or for earning revenue,
the law must presume that such permission is conditional on enterprise
absolving the cost of any accident arising on account of such activity,
as an appropriate item of overheads.
The rule of Absolute Liability: Our Supreme Court found that in modern
times of science and technology the Rule of Rylands v. Fletcher is not
suitable to the needs. So the old rule has been replaced by the rule of
Absolute liability. The rule of absolute liability does not recognise any
limitations or exceptions as in the case of rule of Strict Liability.
Important Case Laws:
Two most important cases containing rules of absolute liability have
been decided by the Supreme Court. These are:
(i) M.C. Mehta v. Union of India, [AIR 1987 SC 1086]: At 4th and 6th
December, 1985 leakage of oleum gas from one unit of Shriram Foods
and Fertilisers Industries in Delhi, belonging to Delhi Cloth Mill Ltd
occurred. In this leakage one advocate practising in the Tis Hazari
Court died and several others were affected. A writ petition under
Article 32 of the Constitution was brought by way of public interest
litigation. The Supreme Court took a hard and bold decision holding
that it was not bound to follow the 19th Century rule of English Law,
and it could evolve a rule suitable to the prevailing social and economic
conditions of the country at the present day. It evolved the rule of
‘absolute liability’ as a part of Indian Law in preference to the rule of
strict liability laid down in Rylands v. Fletcher. Bhagwati C.J. observed
in this context:
“We are of the view that an enterprise, which is engaged in hazardous
or inherently dangerous industry which poses a potential threat to the
health and safety of the persons working in the factory and residing in
the surrounding areas owes an absolute and non-delegable duty to
the community to ensure that no harm results to any one on account of
hazardous or inherently dangerous activity which it has undertaken.
The enterprise must be held to be under an obligation to provide that
the hazardous or inherently dangerous activity in which it is engaged
must be conducted with the highest standard of safety and if any harm
results on account of such activity the enterprise must be absolutely
liable to compensate for such harm and it would be no answer to
enterprise to say that it has taken all reasonable care and that the harm
occurred without any negligence on its part.”
(ii) Union Carbide Corporation v. Union of India, [AIR 1992 SC 248]: The
facts were that in 1984 mass disaster worst in the recent times was
caused by the leakage of Methyl Isocyanate and other toxic gases
from the Union Carbide Corporation Ltd. (in short, UCC) at Bhopal.
While the suits were pending in the New York District Court an offer of
350 million dollars had been made by UCC for the settlement of the
claim. This effort continued when the dispute arising out of interim
compensation ordered by the District Court of Bhopal came before the
High Court.
However, the decision of the Madhya Pradesh High Court was
challenged by both UCC and the Union of India. The Government of
India assailed the reduction in the amount of interim compensation
and UCC contended that in a suit for damages where the basis of
liability was disputed the Court had no power to make an award of
interim compensation. It is in this case the matter was settled by two
orders dated 14th and 15th of February, 1989. On 14th February, 1989,
the Supreme Court recorded the settlement for claims reached between
the parties in the suit for 470 million U.S. Dollars and as consequence
all civil and criminal proceedings against 1989 the terms of settlement
signed by learned Attorney General for the Union of India and the
Counsel for the UCC was filed.
The Settlement of the claims which was recorded by the Supreme
Court was assailed mainly on two grounds:
(a) The criminal cases could neither have been compounded nor quashed
nor the immunity could have been granted against criminal action.
(b) The amount of compensation was very low.
As to the withdrawal of the criminal cases it was held that “the quashing
and termination of the criminal proceedings brought about by the
orders dated 14th and 15th February, 1989 require to be, and are, hereby
reviewed and set aside”, [AIR 1992 SC 248 at 281]
As to the quantum of compensation it was argued that the principle
laid down in M. C. Mehta v. Union of India, AIR 1987 SC 1086, should
be adopted. It was held by the Court that the ‘settlement cannot be
assailed as violation of Mehta principle which might have arisen for
consideration in a strict adjudication. In the matter of determination of
compensation also under the Bhopal Gas Leak Disaster (PC) Act, 1985,
and the Scheme framed there under, there is no scope for applying the
Mehta Principle inasmuch as the tortfeasor, in terms of the Settlement,
For all practical purposes stands notionally substituted by the
settlement and which now represents and exhausts the liability of the
alleged hazardous entrepreneurs, viz. UCC and UCIL. We must all add
that the Mehta principle can have no application against Union of
India inasmuch as requiring it to make good the deficiency, if any, we
do not impute to it the position of a joint tort-feasor but only of a
welfare State.
The rule of Ryland v. Fletcher was again referred to in Indian Council
for Enviro Legal Action v. Union of India, AIR 1996 SC 1446, the
Supreme Court of India decided this case on the M.C. Mehta principle
of absolute liability. The Court held “the rule laid down by Supreme
Court in Oleum Gas Leak case, [AIR 1987 SC 1086), namely, that
once the activity carried on is hazardous or inherently dangerous, the
person carrying on such activity is liable to make good the loss caused
to any other person by his activity irrespective of the fact whether he
took reasonable care while carrying on his activity is by far the more
appropriate and binding.
In Arun Kumar v. Union of India, [AIR 2001 Delhi 140] a tigress
chewed the hand of a three year old child, the Delhi High Court held
that the zoo premises should be free from any danger.
Q.10 Discuss the defences of private defence and necessity with help of
case law and illustrations and bring out clearly the difference between
the two?
Ans. Private defence
The law has given permission to protect one’s life and property and
for that, it has allowed the use of reasonable force to protect himself
and his property.
• The use of force is justified only for the purpose of self-defence.
• There should be an imminent threat to a person’s life or property.
For example, A would not be justified in using force against B just
because he believes that some day he will be attacked by B.
• The force used must be reasonable and to repel an imminent danger.
For example, if A tried to commit a robbery in the house of B and B just
draw his sword and chopped his head, then this act of A would not be
justified and the defence of private defence cannot be pleaded.
• For the protection of property also, the law has only allowed taking
such measures which are necessary to prevent the danger.
For example, fixing of broken glass pieces on a wall, keeping a fierce
dog, etc. is all justified in the eyes of law.
In Bird v. Holbrook (1825), the defendant fixed up spring guns in his
garden without displaying any notice regarding the same and the
plaintiff who was a trespasser suffered injuries due to its automatic
discharge. The court held that this act of the defendant is not justified
and the plaintiff is entitled to get compensation for the injuries suffered
by him.
Similarly, in Ramanuja Mudali v. M. Gangan (AIR 1984 Mad 103), a
landowner i.e. the defendant had laid a network of live wires on his
land. The plaintiff in order to reach his own land tried to cross his land
at 10 p.m. He received a shock and sustained some serious injuries due
to the live wire and there was no notice regarding it. The defendant
was held liable in this case and the use of live wires is not justified in
the case.
In Collins v. Renison (1973 QB 100), the plaintiff went up a ladder for
nailing a board on a wall in the defendant’s garden. The defendant
threw him off the ladder and when sued he said that he just gently
pushed him off the ladder and nothing else. It was held that the force
used was not justifiable as the defence.
Necessity
If an act is done to prevent greater harm, even though the act was
done intentionally, is not actionable and serves as a good defence.
• It should be distinguished with private defence and an inevitable
accident.
The following points should be considered:
• In necessity, the infliction of harm is upon an innocent whereas in case
of private defence the plaintiff is himself a wrongdoer.
• In necessity, the harm is done intentionally whereas in case of an
inevitable accident the harm is caused in spite of making all the efforts
to avoid it.
For example, performing an operation of an unconscious patient just
to save his life is justified.
In Leigh v. Gladstone (1995), it was held that the forcible feeding of a
person who was hunger-striking in a prison served as a good defence
for the tort of battery.
In Cope v. Sharpe (1891), the defendant entered the plaintiff’s premises
to stop the spread of fire in the adjoining land where the defendant’s
master had the shooting rights. Since the defendant’s act was to prevent
greater harm so he was held not liable for trespass.
In the case of Carter v. Thomas (1976), the defendant who entered
the plaintiff’s land premises in good faith to extinguish the fire, at
which the fire extinguishing workmen were already working, was held
guilty of the offence of trespass.
In Kirk v. Gregory (1876), A’s sister-in-law hid some jewellery after
the death of A from the room where he was lying dead, thinking that to
be a more safe place. The jewellery got stolen from there and a case
was filed against A’s sister-in-law for trespass to the jewellery. She
was held liable for trespass as the step she took was unreasonable.
Private Defence in the Indian Legal System
Jeremy Bentham, an English Legal Luminary, once opined, “This right
of defence is absolutely necessary. The vigilance of the Magistrates
can never make up for vigilance of each individual on his own behalf.
The fear of the law can never restrain bad men so effectually as the fear
of the sum total to individual resistance. Take away this right and you
become, in so doing, the accomplice of all bad men.” This right is
based on two principles, It is available against the aggressor only, and
The right is available only when the defender entertains reasonable
apprehension.
There are three tests for ascertaining reasonable apprehension; they
are the objective, subjective and expanded objective tests. While
objective test emphasizes as to how in a similar circumstance an
ordinary, reasonable, standard and average person will respond, the
subjective test examines the mental state based on individual attitude.
However, expanded objective test, being a combination of aforesaid
two tests, bases its inquiry to determine whether or not the individual
acted as a reasonable person.
Right of private defence serves a social purpose and the right should
be liberally construed. Such a right is not only a restraining influence
on corrupt characters but also encourages manly spirit in a law abiding
citizen. It should not be narrowly construed as it necessitates the
occasions for the exercise of this right as an effective means of
protection against wrong doers.
The Right to private defence of a citizen, where one can practically
take law in his own hands to defend his own person and property or
that of others, is clearly defined in Section 96 to Section 106 of the
Indian Penal Code.
Private Defence in Various Legal Systems
English Law
As the common law system does not provide a statutory definition of
self-defence, it is often the opinions of legal authorities that are relied
upon. Black’s Law Dictionary enumerates two elements that are
necessary to constitute self-defence, namely:
• Accused does not provoke difficulty, and
• There must be impending peril without convenient or reasonable mode
of escape.
On the other hand Glanville Williams’ analysis of the elements is more
comprehensive: –
• The force is threatened against the person,
• The person threatened is not the aggressor,
• The danger of harm is imminent,
• The force is unlawful,
• The person threatened must actually believe that a danger exists, that
the use of force is necessary and that the kind and amount of force
being used is required in the circumstances, and that the above beliefs
are reasonable.
American Law
The position under American law is also very similar. Great importance
is given to the following concepts when dealing with the concept of
self-defence.
• Requirement of reasonableness (a reasonable and honest belief is
essential),
• Only that amount of force should be used which reasonably appears
necessary to prevent the threatened harm.
Thus, it can be seen that in the various legal systems of the world,
there are certain common established principles pertaining to self-
defence.
The Difference between Private Defence And Necessity
The two grounds of justification known as necessity and private
defence are closely related. In both cases the perpetrator protects
interests which are of value to her, such as life, physical integrity and
property, against threatening danger. The distinctions between these
two grounds of justification are the following:
(1) The origin of the situation of emergency: Private defence always
stems from an unlawful (and therefore human) attack; necessity, on
the other hand, may stem either from an unlawful human act, or from
chance circumstances, such as natural occurrences.
(2) The object at which the act of defence is directed: Private defence is
always directed at an unlawful human attack; necessity is directed at
either the interests of another innocent third party or merely amounts
to a violation of a Legal provision.
Example:
X, who has a gun, tells Y that he kidnapped Y’s daughter and orders Y,
the bank manager, to use his code to open the safe of the bank and to
hand him all the money inside the safe. If Y does not do what he says
he, X will kill his daughter. If Y hands him the money he will be harming
the bank and therefore act in necessity. If he takes his own gun and
shoot X because he knows that X lied and that his daughter is safe, he
will be acting in private defence to protect this own and the interest of
the bank.
Q.11 Enumerate the various remedies available to a person effected by
some tort committed against him and explain them with help of suitable
examples?
Or
Describe legal and extra judicial remedies available under Law of
Tort.
Ans. Various categories of torts. For understanding the various kinds
of wrongs under the law of torts, we can divide torts in the
following categories:
(1) Tort to person: It is subdivided in five parts:
(i) Mental and Nervous shock,
(ii) Assault.
(iii) Battery,
(iv) May hem, and
(v) False imprisonment.
(2) Tort to Reputation: Defamation is mainly the tort to reputation of a
person, which is subdivided in two parts:
(i) Libel (Written defamation), and
(ii) Slander (Verbal defamation).
(3) Torts relating to domestic relations: This kind of torts may be
subdivided into three divisions :
(i) Torts relating to parental rights,
(ii) Torts relating to marital rights, and
(iii) Torts relating to master’s rights.
(4) Torts relating to rights of property: Such kinds of torts are sub-divided
into four parts.
(i) Torts to immovable property,
(ii) Torts to movable property.
(iii) Torts to movable and immovable property, and
(iv) Torts to incorporeal personal property.
(5) Torts to person and property: Such kinds of torts are divided into four
categories.
(i) Negligence,
(ii) Torts to strict or absolute liability,
(iii) Nuisance, and
(iv) Torts to interfering in contract.
Various remedies available against the torts:
The remedies available against the torts, are of two kinds:
(A) Judicial: and
(B) Extra-judicial.
(A) Judicial Remedies: Judicial remedies are remedies by way of legal
action at law. The injured party may institute a suit in a court of law and
obtain redress. The remedies obtainable for a tort by means of an
action at law are of three kinds :
(i) Damages,
(ii) Injunction, and
(iii) Specific restitution of property.
(B) Extra-judicial Remedies: These remedies are available to a party by
his own acts alone without resorting to the aid of law; e.g., expulsion
of a trespasser, re-entry on land, abatement of nuisance, etc.
The above classification of remedies may be pointed out by way of the
following chart:
(A) Judicial Remedies :

(I) Damages: This remedy is available against all kinds of torts because
tort is a civil injury for which the remedy is by way of an action for
damages. The object of awarding damages is to place the injured party,
So far as money can do it, in the position which he would have occupied,
if the wrong had not been committed. For detail please see the part (b)
of this question,
(II) Injunction: The second important judicial remedy is the injunction’
order issued by the court against the wrong-doer. It means an order of
a court of Justice directing the defendant to abstain from the
commission, continuance, or repetition of an unlawful act, or to do
some act which he is legally bound to do, The first kind of order is
called ‘Prohibitory Injunction’ and second type of order is called
‘Mandatory Injunction’. Injunction is supplementary to the ordinary
and essential remedies of damages and is granted at the discretion of
the court in cases in which damages would not amount to adequate
relief.
(III) Specific Restitution of Property: If a person is wrongfully dispossessed
of his immovable property, or of his specific movable property, is
entitled to recover the immovable or movable property as the case may
be. This remedy is governed by Sections 9 and 10 of the Specific Relief
Act.
(B) Extra-Judicial Remedies:
(I) Self defence: Every person has the right of defence for the protection
of his body and property. Every person is authorised by law to use
force by the way of self-defence against the wrongful act done by
other person but the force used in self-defence should not exceed the
proportion of the harm caused to him. Such provisions relating to the
private defence have been provided from Sections 96 to 106 of the
Indian Penal Code, 1872.
(II) Expulsion of trespasser. A person who is entitled to the immediate
possession of immovable property may expel the trespasser therefrom
and re-enter it, provided that the force used by him does not exceed
the reasonable limits of the occasion.
(III) Re-entry on land: A man wrongfully dispossessed of his land may
retake its possession and re-enter in it, if he can do so in a peaceful and
easy manner without intervention of the courts.
(IV) Reception of good: A person is entitled to the immediate possession of
chattels. He may recover them from any person who has them in actual
possession and detain them, provided that such possession was
wrongful in its inceptions.
(V) Abatements of nuisance: In case of nuisance, private or public, under
certain circumstances and subject to certain limitation, the injured party
has a right to remove it. Thus, it is
lawful for an owner or occupier of the land, or for any one by the
authority of the occupier, to terminate by his own act any nuisance
which may injuriously affect his land, provided that in doing so he
does not cause any unnecessary damage. For example, it is quite legal
for a person to cut ‘overhanging branches of spreading roots from his
neighbour’s trees.
(VI) Distress damage feasant: ‘Distress’ means a right to detain: ‘feasant’
means an object which has done a wrong; and ‘damages’ implies the
loss caused to the owner or the occupier.Where the owner or occupier
of land finds any cattle trespassing on his property and unlawfully on
his land and causing damage. He has a right to seize and detain it and
refuse to release it unless the owner pays compensation for the damages
suffered by him.
Q.12 “An act otherwise lawful does not become a wrong merely because of
a combination of persons in doing it.” Explain?
Or
“An act otherwise lawful does not become a wrong merely because of
a combination of persons in doing it.” Explaining the above discuss
the Tort of “conspiracy” with the help of decided cases?
Ans. Essentials of conspiracy in tort
The essentials of conspiracy as a tort are :
(1) A combination of two or more persons with the object of wilfully
injuring another person.
(2) A commission of the injury.
(3) Consequent damage to the other person.
In order to understand the above essentials, it is necessary to advert
briefly to the following House of Lords cases :
(1) The Mogul case, (2) Allen V. Flood, (3) Quinn v. Leatham, Sorrel v.
Smith and (4) Veitch’s case.
1. The Mogul case: Mogul Steamship Co. v. McGregor Gow and Co.,
(1892) A.C. 25: The defendant ship owners had combined to obtain a
monopoly of the tea trade from China by offering a discount to
customers who only shipped by their vessels. In consequence the
Mogul S. Company which had been excluded from the combination
were driven out of trade. They brought an action for conspiracy against
the defendant. It was held by the House of Lords that there was no
cause of action against the defendants. They held that “trading loss
resulting from the competition of rivals, acting in combination to
promote their business interests by lawful means, is damnum sine
injuria.”
2. Allen v. Flood, (1898) A.C. 2: It was held in this case that an act lawful
in itself is not converted into a tortious act by a malicious or bad
motive. In this case there was no combination.
3. Quinn v. Leatham, (1910) A.C. 495: The plaintiff had a dispute with
the trade union of which defendants were officials with respect to the
employment of certain workmen who did not belong to the union.
Thereupon the defendants maliciously conspired to induce the
plaintiff’s customers and servants not to deal with the plaintiff. Held
that the plaintiff was entitled to damages; a conspiracy to injure gives
a cause of action.
Sorrell V. Smith, (1925) A.C. 700: A trade union of retail newsagents
wanted to limit the number of retail newspaper shops in a particular
area. They threatened to cut off supply to a distributor unless he
discontinued supply to the plaintiff. It held that they had not committed
any actionable wrong. The House of Lords laid down two propositions:
(1) a combination of two or more persons wilfully to injure a man in his
trade is an unlawful act and, if it results in damage to him, is actionable;
if the real purpose on the combination is not to injure another, but to
forward or defend the trade of those who enter into it, then, no wrong
is committed and no action will lie, although damage to another ensues.
4. Crofter Hand woven Harris Tweed Co. Ltd. v. Veitch, (1942) A.C. 435:
“Harris Tweed” was being marketed in the island of Lewis more cheaply
by some small producers like the appellants who imported yarn from
the main land instead of getting it from the island spinning mills. Five
mill owners in Lewis nevertheless spun yarn woven by the Crofters.
The workers of such mills which still manufactured from hand spun
wool were paid lower wages. Nineteenth of such workers belonged to
the Transport and General Workers’ Union which determined to stop
the importation of yarn by ordering the Lewis dockers (who were also
members of the union) to strike in the interest of the workers. By so
doing the union through its officials Veitch and Mackenzie caused
loss to the appellants. The appellants sued Mackenzie and Veitch as
individuals for conspiracy.
It was held that there had been no actionable conspiracy. They noted
as follows:
(i) The first question that arose was whether Veitch and Mackenzie
combined together “to injure the appellants in the way of their trade,
and that the appellants suffered damage from their illegal action.
Conspiracy, when regarded as a crime, is the agreement of two or more
persons to effect any unlawful purpose, whether as their ultimate aim,
or only as a means to it, and the crime is complete if there is such
agreement, even though nothing is done in pursuance of it. The crime
consists in the agreement, though in most cases, overt acts done in
pursuance of the combination are available to prove the fact of
agreement. But the tort of conspiracy is constituted only if the agreed
combination is carried into effect in a greater or less degree and damage
to the plaintiff is thereby produced.
(ii) The appellants, therefore, in order to make out the case have to
establish: (a) agreement between the two respondents, (b) to effect
unlawful purpose, (c) resulting in damage to the appellants.
As regarding (c) there can here be no doubt. Instructing or persuading
the dockers to refuse to handle imports of mainland spun yarn arriving
for delivery to the appellants was an interference with the appellant’s
normal source of supply, which was bound to damage their business.
Still more, perhaps, was it an injury to the appellants to prevent by
these means as sending of their unfinished cloth to the mainland.
As regards; (a) there was no difficulty. There was an agreement between
two persons to do the thing complained of.
The only difficulty in the case arises under (b). What exactly is meant
in this branch of the law, by a combination to effect an unlawful
purpose. If A is damaged by the action of B, A nevertheless has no
remedy against B, as B’s act is lawful in itself and is carried out without
employing unlawful means. In such a case A has to endure damnum
absque injuria. But if the act which damages A is not that of a single
individual, but is due to a combination of two or more persons, then it
is no longer possible to say that motive or purpose is immaterial. If the
real purpose of the combination is the inflicting of damage on A as
distinguished from serving the bona fide and legitimate interests of
those who so combine, then if damage results to A, the act is tortious.
To this there is an exception where the defendant’s real and
predominant purpose is to advance their own lawful interests in a
matter in which they honestly believe that those interests would directly
suffer if the action against the plaintiff was not taken.
In the present case the union had acted in furtherance of its own
present interest and the interests of its members and therefore the
action failed. Viscount Simon, L.C. pointed out that purpose must be
distinguished from motive. The action of conspiracy lies only where
the predominant purpose of the defendant is to injure the plaintiff in
his trade.
The essentials of actionable conspiracy deducible from the above cases
may be summarized as follows:
(1) A combination of two or more persons with the object of wilfully
injuring another person.
(2) Inflicting the injury.
(3) Consequent damage to the other person.
Exception: If the predominant object of the combination is to advance
the legitimate interest of the Combiners, this is not conspiracy.
(4) Malice, meaning ill will, is not an essential will of liability.
Q.13 Explain the Maxim “Actio personalis moritur cum persona.” State
the exceptions to the maxim recognised by the law in India & England?
Ans. In England it is a prevalent maxim of law in England: “Actio personalis
moritur cum persona”, evidently, it implies that with the death of a
party the tort is discharged. The right to sue in tort comes to an end.
The damaged or one who damages, when either of them dies the liability
from tort comes to an end, whether the damage happens to occur to a
person or property, this maxim is based on this ground that the personal
right to sue cannot be transferred but the Law Reform (Miscellaneous
Provisions) Act, 1934 has completely altered this maxim.
The influence of death on the proceedings of tort can be seen in the
following two ways:
(a) Death of the Plaintiff
(b) Death of the Defendant or the one who has committed the damage or
wrong.
(a) Death of the plaintiff: The death of the plaintiff happens to have two
types of influence on tort:
(i) Personal wrongs: In Common Law the executors or administrators of
a person could not sue for personal wrongs to an individual who had
instituted the case during his life-time, because the cause such a tort
comes to an end with their death. Not only could this, in Common Law,
no body get compensation for the death of a person. In this connection
the case of Baker Vs. Bolton [(1808) 1 Camp 493] the principle of the
end of the right to sue with the death of the plaintiff was established.
(ii) Wrongs related to Property: Even for ten types of wrong a person
could not sue in tort which had been initiated by the plaintiff during
his life-time but to this general principle there are exceptions also:
(1) Common Law Exceptions:
(i) Wrongful appropriation of another’s property: The principle does
not give any benefit in those cases in which some property is wrongly
appropriated and used by the person committing a wrongful act, but if
his property had been benefited like the property of a person acting
properly, is enough to be regarded an exception to the rule.
(ii) Breaches of Contract: Where a proceeding creates two situations,
one of tort and other of breach of contract, there this doctrine is not
applicable. Just as on the death of the debtor one cannot get exemption
from debt. This statement is restricted to the cases of pure torts.
(iii) Abatement on the death of either party: If some decree has been passed
in favour of the plaintiff then appeal, review or in other proceedings
abatement on account of death will not come. But if in the decree
personal right or final decision has been declared then no successor in
institute the proceedings of execution, appeal and revision.
(2) Statutory Exceptions:
(i) Though Act, 1930 (3): It has been allowed to institute those cases
by.executor or administrator who had instituted those cases when
damage was done to the property of the deceased.
(ii) Fatal Accidents Act, 1846: This Act allows the institution of a suit for
the benefit of the widow, husband or child of a person whose death
has been caused by the wrongful act or negligetice or default of the
wrongdoer.
(iii) Civil Procedure Code, 1833:Against the damage done to the personal
property of the deceased within six-months the executor or the
administrator can prefer a suit.
(iv) Workman’s Compensation Act, 1925: According to this Act, the
dependants of an employee can institute a suit for compensation, if
that employee dies on account of injuries evidently, in the course of
employment.
(v) The Employer’s Liability Act, 1938: According to this Act-the
successors or legal representatives of the employee have a right to
institute a suit for compensation.
(vi) Law Reform Miscellaneous Provisions Act, 1934: This Act has
eradicated the doctrine that with the death of the plaintiff all his rights
to sue for damages shall cease. On the death of a person and the suit
interests vested in him will survive and will be vested in his successors.
In the Law Reform Act this provision has also been made that if during
the proceedings one of the parties to the suit dies, then there would be
no obstruction in the continuation of the proceedings. If somebody is
damaged in an accident and thus he gets injured in consequence there
is possibility of the shortening of his life-span, then proceeding can
be instituted for it.
(b) In Rose Vs. Ford [(1937) S.C. 726] a most important verdict was
passed on the subject. In this case on account of the negligent driving
of the car by the defendant a young maiden of 23 was seriously injured.
Two or four days after the accident she died. Her father who was the
administrator of her property instituted a suit under the Law Reform
Act for the benefit of her estate :
(1) Compensation for the fracture of her leg.
(2) Pain and suffering.
(3) Apprehension or likelihood of the shortening of her life span.
In this case the Court gave the verdict that under The Law Reform Act
that the father had the right to sue for damages done to the property or
interests of the daughter after her death.
In the case of Baiz Vs. Kai [(1962) All England Reporters, 257] the
Court of appeal got the maiden paid a compensation of Rs. 15.000/- for
she had received serious mental injury and in consequence she had
become almost useless or had become unconscious. In this case this
judgement was given that the indifference of the plaintiff is not relevant
to the decree of compensation passed by the Court.
In the case of Oliver Vs. Ashman [(1961) 3 All. E.R. 323] the court of
appeal ordered the award of £ 1,000/- as compensation because extreme
brain injury was caused to a boy of 20 months. This serious injury had
rendered the child mentally deficient. His mental faculties were
enfeebled.
Here it is essential to mention that prior to the Reform Act of 1034 no
one had the right to sue regarding the death of anyone. This doctrine
was established in the famous case of Baker Vs. Bolton [(1808) 1
Camp 493]. In this case the plaintiff and his wife were travelling in the
defendant’s stage coach in the top-part of the coach. On account of
the negligence of the defendant the coach overturned. The plaintiff
received some injuries but his wife received such serious injuries that
she after a month. The plaintiff instituted a suit regarding his personal
injuries, and the death of his wife. He was awarded compensation of £
100/- only. But after the death of his wife the court declined to allow
any compensation. The court laid down this rule that in no Civil Court
the death of a person can be the subject of a suit and case for
compensation cannot be instituted with regard to it.
Q.14 What do you understand by “Vicarious liability”? Whether
Government of India is liable for the tort committed by its servants
during the course of employment? Explain with the help of decided
cases?
Ans. A works for B and while doing his work, he has caused injury to C.
Here, C has the right to claim damages for injury caused to him. But in
this case, B will be held liable for the act of A. This is because of the
principle of vicarious liability.
Many Questions arise such as:
• Is B going to be liable for all the acts of A or are there any exceptions
to this rule?
• When does B’s liability arise and in which cases can B get exempted
from his liability?
• are there certain requirements which need to be fulfilled in a case for B
to be liable or is he going to be held liable for all the acts of A?
The concept of vicarious liability deals with all such cases.
Meaning of Vicarious Liability
Vicarious liability means a liability which is imposed on a person for an
unlawful act or omission by another person. Here even if a person did
not do any wrongful act himself, he can still be held liable if someone
else does such act. This liability arises in those cases where there is a
special relationship which exists between the wrongdoer and the person
who is held liable such as master and servant relationship.
Illustration:
A is an employee of B and while doing his job, due to his negligence C
suffers injury. Here due to vicarious liability, B will be held liable for A’s
act because A was working on his behalf, during the course of
employment and thus B will be liable for any wrong which arises by an
act of A because B has authorised him to do the act.
Principles of Vicarious Liability
Vicarious liability is based on 2 very important principles or maxims
which are:
Qui facit per alium facit per se
As per this maxim, a person who acts through another person is deemed
by law to have done that act himself. Thus whenever a person
authorised another person to act on his behalf, if any liability arises
out of such act the person who gave the authorisation will be held
liable vicariously because as per the law, he has done that act himself
through another person and therefore he will be liable.
Respondeat Superior
According to this maxim, the superior should be held responsible by
law for the acts done by his subordinate. Thus whenever a subordinate
person does an act for another person, the other person who is his
superior will be held liable for the wrongs arising out of the act and
thus he will be vicariously liable.
When does the liability arise:
This liability does not arise randomly therefore just because A did
something wrong it will not make B liable automatically for it but only
where there is a special relationship which exists between two people,
the vicarious liability will apply. So, if A and B have a relationship
which is covered under vicarious liability, only then B will be liable for
A’s act.
There are many relations in which the concept of Vicarious liability
arises they are:
1. Master and Servant
2. Principal and Agent
3. Partners in a partnership firm
4. Company and its Directors
5. Owner and Independent Contractors
If there is a relation of the abovementioned type between two people
then vicarious liability can arise for a person even though such an act
is done by another person. For e.g., if A and B are in a master-servant
relationship then, for any wrong done by A, B who is his master will
also be liable if the act is done during the course of A’s employment.
Vicarious liability by Authorisation
When the vicarious liability arises because of an act which is done by
another with the authority being given to act on their behalf, such
liability is known as a vicarious liability by authorisation.
In such cases, there is an express or implied authority which is given
to another person and since the act is done on behalf of another
person, such a person for whose benefit the act has been done will be
held liable.
In these situations, a person also becomes liable for the direct
consequences which occur in the commission of the authorised act.
Illustration:
B is a driver of A who is driving the car with A’s authority and while
driving it he causes an accident due to his negligence. Here even
though A was not the one driving the car, he will be liable because it
was done on his behalf by B with his authority.
Vicarious Liability by Ratification
Usually, when a person is acting through another person, that other
person is given authority by such person to do an act. For e.g., if A is
doing an act on behalf of B, it is done only when B has given his
authority to A to do such an act and if any liability arises because of
A’s act then B will be held liable because he had given his authority to
A for doing such act.
But it is not always the case and many times a person can act for
another even without their authority and the person can be held liable
despite him not giving an authority to do such an act. This happens
when the person ratifies an act which was done on his behalf by the
other person.
Ratification means that the person for whom an act is done by another
approves of such an act after it has been done. So, the authority for
acting on his behalf is given after the act has already been done. In the
law of torts, the effect of ratification is that, it will be treated as if the act
was done with the authority from the beginning.
Illustration:
A is an agent of B who enters into an agreement on B’s behalf with C
for an unlawful act without B’s authority. Later B approves of such
contract thereby ratifies it. So, B will be vicariously liable for such
unlawful act because he has ratified it.
In the case of Commissioner of Police of the Magistrate Metropolis v.
Woks (2012) EQLR 209, it was held that for an employer to be liable
for the acts of his employee, he must have given his authority to such
a person to act in that manner and such an authority can be given
either expressly or impliedly and it may be done before the commission
of the act, or after the act has been done.
Thus, in the above case, the validity of the vicarious liability by
ratification was upheld and therefore such an act will make the ratifying
person liable for the tortious act of another.
This is based on the maxim “Omnis ratihabitio retro trahitur et
mandato aequiparatur”. It means any act which has already been
done for which consent is given afterwards will have a retrospective
effect and such consent will be treated in the same way as if the act
was done on the command of the ratifying person.
Illustration:
If A does an act without B’s authority on his behalf and B, later on,
ratifies that act, the law will regard such an act to have been done as if
it was done by A on B’s command.
In the case of Remploy Ltd. v. Campbell & Anr (2013) UKEAT/0550/
12/JOJ, the question before the court was regarding ratification. The
claimant had been removed from his services and he cited his race to
be the grounds for such termination. Remploy Ltd. provided the
workforce to Redbridge (the company which terminated the claimant)
and at the time of termination they had a duty to inquire into the
reason for the same. They failed to do so and therefore the claimant
claimed this act amounted to the ratification of his termination. On
this, the Court had observed that the question is whether the 3rd party
(which was the claimant here) perceived that Redbridge did this act in
the name of or on behalf of Remploy. If the answer to that question is
yes only then the question about the ratification by Remploy of the
act of Redbridge by its action can arise. The court, therefore, sent the
case back to the Tribunal after to decide the question of ratification
after it found that the 3rd party here had perceived that the act was
done on behalf of Remploy.
Vicarious Liability of the State:
The term ‘administration’ is used here synonymously with ‘state’ or
‘Government’. To what extend the administration would be liable for
the torts committed by its servants is a complex problem especially in
developing countries with ever widening State activities. The liability
of the government in tort is governed by the principles of public law
inherited from British Common law and the provisions of the
Constitution. The whole idea of Vicariously Liability of the State for
the torts committed by its servants is based on three principles:
• Respondeat superior (let the principal be liable).
• Quifacit per alium facit per se (he who acts through another does it
himself).
• Socialization of Compensation.
Position in India:
Unlike the Crown Proceedings Act, 1947 (England), we do not have
any statutory provisions mentioning the liability of the State in India.
The law in India with respect to the liability of the State for the tortious
acts of its servants has become entangled with the nature and character
of the role of the East India Company prior to 1858. It is, therefore,
necessary to trace the course of development of the law on this subject,
as contained in article 300 of the Constitution.
The position of State liability as stated in Article 300 of the
Constitution is as under: Clause (1) of Article 300 of the Constitution
provides first, that the Government of India may sue or be sued by the
name of the Union of India and the Government of a State may sue or
be sued by the name of the State; secondly, that the Government of
India or the Government of a State may 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 be sued, “if this Constitution had not been enacted”, and
thirdly, that the second mentioned rule shall be subject to any
provisions which may be made by an Act of Parliament or of the
Legislature of such State, enacted by virtue of powers conferred by
the Constitution.
Consequently, one has to uncover the extent of liability of the East
India Company in order to understand the liability parameters of the
administration today because the liability of the administration today
is in direct succession to that of the East India Company.
The East India Company launched its career in India as a purely
commercial corporation but gradually acquired sovereignty. Therefore,
in the beginning, the company did not enjoy the immunity of the Crown.
It was only when it acquired political powers that a distinction was
made between sovereign and non- sovereign functions.
Post Constitution Judicial Decisions
State of Rajasthan v. Vidyawati
The respondents filed a suit for the damages made by an employee of
a State and the case questioned whether the State was liable for the
tortious act of its servant – The Court held that the liability of the State
in respect of the tortious act by its servant within the scope of his
employment and functioning as such was similar to that of any other
employer.
It was held in this case that the State should be as much liable for tort
in respect of tortuous acts committed by its servant within the scope
of his employment and functioning as such, like any other employer.
The facts of this case may shortly be stated as follows. In that case,
the claim for damages was made by the dependants of a person who
died in an accident caused by the negligence of the driver of a jeep
maintained by the Government for official use of the Collector of Udaipur
while it was being brought back from the workshop after repairs. The
Rajasthan High Court took the view-that the State was liable, for the
State is in no better position in so far as it supplies cars and keeps
drivers for its Civil Service. In the said case the Hon’ble Supreme
Court has held as under: “Act done in the course of employment but
not in connection with sovereign powers of the State, State like any
other employer is vicariously liable.”
In the aforesaid case, the Hon’ble Apex Court while approving the
distinction made in Steam Navigation Co.’s case between the sovereign
and non-sovereign function observed that the immunity of crown in
the United Kingdom was based on the old feudalistic notions of Justice,
namely, that the King was incapable of doing a wrong. The said common
law immunity never operated in India.
Kasturi Lal v. State of U.P.
The ruling, in this case, was given holding that the act, which gave rise
to the present claim for damages, has been committed by the employee
of the respondent during the course of its employment. Also, that
employment belonged to a category of sovereign power. This removed
any liability on the part of the state. In this case, the plaintiff had been
arrested by the police officers on a suspicion of possessing stolen
property. Upon investigation, a large quantity of gold was found and
was seized under the provisions of the Code of Criminal Procedure.
Ultimately, he was released, but the gold was not returned, as the Head
Constable in charge of the maalkhana, where the said gold had been
stored, had absconded with the gold. The plaintiff thereupon brought
a suit against the State of UP for the return of the gold or alternatively,
for damages for the loss caused to him. It was found by the courts
below, that the concerned police officers had failed to take the requisite
care of the gold seized from the plaintiff, as provided by the UP Police
Regulations.
The trial court decreed the suit, but the decree was reversed on appeal
by the High Court. When the matter was taken to the Supreme Court,
the court found, on an appreciation of the relevant evidence, that the
police officers were negligent in dealing with the plaintiff’s property
and also, that they had not complied with the provisions of the UP
Police Regulations.
However, the Supreme Court rejected the plaintiff’s claim, on the ground
that “the act of negligence was committed by the police officers while
dealing with the property of Ralia Ram, which they had seized in exercise
of their statutory powers. The power to arrest a person, to search him
and to seize property found with him, are powers conferred on the
specified officers by statute and they are powers which can be properly
categorized as sovereign powers. Hence the basis of the judgment in
Kasturi Lal was two-fold – The act was done in the purported exercise
of a statutory power. Secondly, the act was done in the exercise of a
sovereign function.
State of M.P. v. Chironji Lal
A new question came before the court relating to the payment of
damages for the loss caused by the lathi-charge of the police in a
situation where it was unauthorized and unwarranted by law. It was
alleged that the police resorted to lathi-charge wilfully and without
any reasonable cause and thus damaged the plaintiff’s property. The
claim was rejected on the ground that the function of the state to
regulate processions and to maintain law and order is a sovereign
function.
Satyawati Devi v. Union of India
The Delhi High Court held that the carrying of a hockey team in a
military truck to the Air Force Station to play a match is not a sovereign
function. In this case, an Air Force vehicle was carrying hockey team
of Indian Air Force Station to play a match. After the match was over,
the driver was going to park the vehicle when he caused the fatal
accident by his negligence.
It was argued that it was one of the functions of the Union of India to
keep the army in proper shape and tune and that hockey team was
carried by the vehicle for the physical exercise of the Air Force personnel
and therefore the Government was not liable. The Court rejected this
argument and held that the carrying of the hockey team to play a match
could by no process of extension be termed an exercise of sovereign
power and the Union of India was therefore liable for damages caused
to the plaintiff.
Khatri(II) v. State of Bihar
An important question was raised regarding the liability of the
government for wrongful arrest and detention. Moving ahead in the
direction of a new dimension of the right to life and personal liberty,
Justice Bhagwati said: “Why should the court not be prepared to
forge new tools and devise new remedies for the purpose of vindicating
the most precious of the precious fundamental rights to life and personal
liberty.”
It may be noted that the Government of India has not signed a treaty
which provides for compensation for wrongful arrest and detention.
This amply proves the lack of government’s concern for the precious
of the precious rights of the people for the sake of discounting its own
inefficiency and lawlessness.
Rudal Shah v. State of Bihar
In this case it was laid down a most important principle of compensation
against government for the wrong action of its official the important
judgment was handed down by the Supreme Court against the Bihar
Government for the wrongful and illegal detention of Rudal Shah in
Muzaffarpur jail for as many as 14 yrs after he was acquitted by the
Sessions Court in June 1968. The Court ordered compensation of Rs
30,000 for the injustice and injury done to Rudal Shah and his helpless
family.
Bhim Singh v. State Of Jammu And Kashmir
In this case, the Court awarded the exemplary cost of Rs 50,000 on
account of the authoritarian manner in which the police played with
the liberty of the appellant.
Saheli, A Women’s Resources v. Commissioner Of Police
Saheli v. Commissioner of Police was another milestone in the evaluation
of compensation jurisprudence in writ courts. The masterpiece
judgment in Vidyawati, which was frozen by Kasturi Lal was rightly
quoted in this case. The State was held liable for the death of nine-
year-old child by Police assault and beating. Delhi Administration was
ordered to pay compensation of Rs. 75000/-. The significance of this
case is that firstly, the revival of Vidyawati ratio and secondly that the
Delhi Administration was allowed to recover money from those officers
who are held responsible for this incident.
Common Cause, A Registered Society v. Union of India
The Supreme Court emphatically stressed that Kasturi Lal case, apart
from being criticized, not been followed by the Court in subsequent
cases, and therefore, much of its efficacy as a binding precedent has
been eroded. In this case, the entire history relating to the institution
of suits by or against the State or, to be precise, against Government of
India, beginning from the time of East India Company right up to the
stage of Constitution, was considered and the theory of immunity was
rejected. In this process of judicial advancement, Kasturi Lal’s case
has paled into insignificance and is no longer of any binding value.
Q. 15 Explain:
(1) Mal-feasance, (2) Mis-feasance, (3) non-feasance.
Ans. In every tort there must always be the violation of a legal right.
Since legal right and legal duties are correlative terms so it can also
be said that in every tort there must be the breach of a legal duty. A
breach of legal duty may occur in the following ways: -
(1) Mal-feasance. - The term ‘mal-feasance’ applies to the commission of
an act which one has a legal duty to refrain from, such as, trespass,
which are actionable per se and do not require proof of negligence or
malice. Unknown to the passengers A drives a motor car without a
driving licence. An accident is caused and the passengers are injured.
A is guilty of ‘mal-feasance’, driving without licence was an act which
he was under a legal duty not to do. There is thus a breach of a legal
duty on the part of A.
Malfeasance in Tort Law
1. Malfeasance is applied when any unlawful act is committed.
2. It is relevant to those unlawful acts which are actionable per se
3. no proof is required with.
4. For example, trespass.
Malfeasance is a broad term covering any act which is illegal and
causes physical or financial harm to another individual. It is an
intentional act of doing something wrong, either legally or morally. The
term malfeasance is utilized in both common law and criminal law to
narrate any act which is unlawful or not identified by law. It is not a
different crime or tort but the word malfeasance is used to n7arrate any
act that is criminal or any wrongful act which causes injury to any
person. Under tort law, malfeasance has legal effect in civil court and
the defendant can be sued by the plaintiff for monetary damages. It is
an act done with an immoral purpose and the person has the knowledge
that the act which is being committed exceeds the authority of the
person doing the act.
For example, a police officer is about to complete his rounds during
his shift. His shift is about to over and he wants to go home. While he
is driving home, he sees that a customer and the cashier at the gas
station are having a heated conversation. The officer was on duty at
that time and he knew that his shift would end in thirty minutes and if
he stops there, it would take time and he will not reach home in time.
(2) Mis-feasance. - It consists in the improper performance of an act which
one has a legal right to do.
A has a legal right to drive a motor car. Under law, in a congested part
of the city the speed of the motor car should not exceed 15 km. per
hour. A drives at an excessive speed of 45 km. per hour and injures B (a
passerby). A is therefore, guilty of ‘misfeasance’.
Misfeasance in Tort Law
It means the “Improper performance of some lawful act”. Misfeasance
means carrying out legal and improper action, but it is done in such a
way that it harms others or causes injury to other people. Sometimes
an act of a person causes harm to other people unintentionally. While
all these actions are often mistakes committed by a person, there can
be legal consequences for such mistakes. Attached to those mistakes,
misfeasance is the legal term used for an act which is not illegal but
performed in such a way that it harms another individual. There are
certain situations in which a person has to perform a duty in the manner
prescribed but the person fails to perform duty in a particular manner
then it will be an act of misfeasance. Generally, defendants are held
liable as the defendant has a duty of care towards the plaintiff but did
not perform the duty properly.
In Calveley v. Chief Constable of the Merseyside Police, it was held
that for the tort of misfeasance it was necessary that the public officer
must have acted maliciously or in bad faith. In the case of Dunlop v.
Woollahra Municipal Council, it was held that without malice the
claim for misfeasance could not be accepted.
For example, if a doctor performs an operation by using rusted tools
or leaves an alien object in the stomach during the procedure. Generally,
a civil defendant will be liable for misfeasance as the defendant owes a
duty of care towards the plaintiff and did not perform his duty properly,
doing an operation is a lawful act but there is an improper performance
of the lawful act.
(3) Non-feasance. - It applies to the non-performance of an act, which one
is under a legal duty to perform.
A, a doctor treating B, advised B to undergo an operation of brain
tumour. A appoints a date to which B agrees. But on the appointed day
A was not available and B was completely paralysed. As A agreed to
perform operation he was under a legal duty to perform, which he did
not do, A is guilty of nonfeasance.
In a leading case Elsee v. Gutward, (1703) 5 TR 72, it was held that the
nonfeasance of a gratuitous undertaking does not impose liability,
but misfeasance does.
Nonfeasance in Tort Law
Nonfeasance is the failure or omission to perform an obligatory or
compulsory act. If a person promises another person to perform a
particular act and does not perform it, then it is nonfeasance as the
person was responsible for performing the act. Nonfeasance is an act
of intentionally neglecting to carry out a duty which is an obligation
and because of the failure to perform the duty, someone is harmed or
injury has been caused. It harms another person or causes injury to a
person’s property. It is the lack of ability associated with the failure of
the act. Unless and until a person has a pre-existing relationship he
will not be held liable for the failure of the act. It describes inaction
rather than action. Court believes that if people are not creating a
dangerous situation then also they must take proper care in order to
prevent other people from a dangerous situation. The relationships in
which a person is forced to do something or is compelled to do
something are spouses, family members, school authorities and
students, employee and employers, doctor and patients, etc, their duty
is to protect each other from danger.
In Municipal Corporation of Delhi vs. Subhagwanti, a clock tower fell
down in ChandniChowk, Delhi, many people were injured and many
died. The clock tower was not repaired for many years and the municipal
corporation was required to maintain it. The MunicipalCorporation
failed to do so and the tower collapsed. The municipal corporation was
held liable as it was their duty to repair the clock which they failed to
do. It can be called as nonfeasance as there was an omission in
performing the compulsory act.
Conclusion
There is very little difference between malfeasance, misfeasance and,
nonfeasance as malfeasance in the law of tort is the commission of an
unlawful act while misfeasance is the commission of a lawful act in an
improper manner and nonfeasance means failure to perform an act
where there is a necessity to perform the act. In all the three situations
injury is caused to one person by another person or there is some
damage to the property.
Q. 16. Discuss the principle of Contributory negligence? Are
there any exceptions to this rule? Explain?
Or
What is Contributory negligence? Discuss the various principles
governing this doctrine?
Or
Explain the doctrine of contributory negligence and discuss in detail
the various principles governing this doctrine? Differentiate it with
composite negligence?
Ans. Contributory negligence
Contributory negligence basically means ignorance from both the
parties involved. If a person is driving a car without any breaks met
with an accident with another person who was driving on the wrong
side of the road. This results in contributory negligence. It’s a defence
available to the defendant in case of contributory negligence which
prevents the plaintiff to get compensation.
Contributory negligence is the ignorance of due care on the part of the
plaintiff to avoid the consequences of the defendant’s negligence.
This concept is loosely based on the maxim: “Volenti non fit injuria”
(injury sustained voluntarily). It means If a person is not taking due
diligence in order to avoid consequences resulting out from the
negligence of the defendant the liability of negligence will be on both
of them.
Principles of contributory negligence
• If the plaintiff is himself negligent for taking due care in order to avoid
consequences and becomes the direct cause of the damages, he is not
entitled to receive any compensation.
• If both the plaintiff and the defendant have taken reasonable measure
and ordinary care to such extent where they both wanted to avoid
such consequences then the plaintiff can’t sue the defendant.
Difference between contributory negligence and composite negligence
Contributory Negligence Composite Negligence
Contributory negligence means Composite negligence means
ignorance on the part of the ‘omission of an act’ from the
plaintiff in order to avoid the part of two or more wrongdoer
consequences arising from the doer which resulted in theinjury
negligence of the defendant. of the plaintiff.
Both plaintiff and defendant Wrongdoers or the defendants
are held responsible. are jointly liable.
There is a proximate relation There’s no such relation
between the acts of the between the plaintiff and the
plaintiff and defendant. defendants.
Both the plaintiff and the Wrongdoers are liable to pay
defendant are liable to pay for the injury sustained by the
for the damages. plaintiff .
Claim for damages by the Claim for damages is not.
plaintiff is reduced to the reduced to an extent.
extent of his proportion
of negligence.
The burden of proving contributory negligence
The burden of proof lies over the defendant. In order to get the defence
of contributory negligence, the defendant must prove that the plaintiff
is responsible as him, and ignored due diligence which could have
avoided such consequences arising from the negligence of the
defendant.
Great central rly. V. Bates(1940) 3 All.E.R.399
The plaintiff sustained injuries as he fell down from the shaft of the lift
because he went backwards opened the doors and stepped through it
assuming that the lift would still be in place.
He was guilty of contributory negligence and therefore was not entitled
to recover compensation for the damages sustained.
Hansraj v. Tram CO., 35 Bom.478
A attempted to board a moving tramcar and end up getting injured. He
sued the company. It was held that if he would have boarded in a
tramcar, not in motion, it would have been easier for him to get a firm
grip in the handlebar and settle down easily. The company was not
held liable.
When the defence of contributory negligence is not available?
When it is not necessary for the plaintiff to take due care but the
defendant was legally obligated to perform such duty of care failure of
which will result in the liability of negligence for the defendant.
Example: A was travelling on a train with his brother. In order to show
him something outside the window got up and placed his hand on the
window which suddenly flew open. Though he could have avoided
the accident, it was the duty of the staff to properly screw the window
which would have not resulted in such an accident.
Butterfield v. Forrester, (1809) 11 east 60
In the instant case due to the ignorance of the plaintiff in order to take
due care while driving, he met with a collision with the pole which was
wrongfully obstructed by the defendant. So without considering the
negligence of the defendant, the plaintiff could have avoided the
accident.
The second situation is when the defendant has time to recourse and
take reasonable measures in order to avoid an accident.
Example: If A is driving a car without headlights at a galloping speed
sees B driving in the wrong side from a long distance. He has the time
to recourse and take due diligence to avoid an accident.
Davis v. Mann
In the instant case, the defendant ran over the donkey of the plaintiff
while driving at a fast pace. He was negligible and was entitled to pay
compensation to the plaintiff.
The third situation is when a defendant will not get the defence of
contributory negligence when he creates a situation under which the
plaintiff gets reasonable apprehension of imminent threat or menace to
his life and in order to escape such danger he acted rationally and
avoided due care of diligence.
Example: A, a bus driver was driving negligently and rashly due to
which an accident was about to take place. But B acting prudently
jumped out of the bus and sustained injuries. A is liable to pay for the
damages sustained by B.
Brandone v. Osborne
In the instant case, the defendant was held liable for the injuries
sustained to the plaintiff who in order to save her husband from the
negligence of defendant’s workmen injured her leg.
The fourth situation is that contributory negligence is not applicable
to maritime law. The fifth situation is that contributory negligence is
not applicable is not over children. The ability to think rationally and
prudently like an adult is absent in a child. Proper allowances are to be
made for the lack of experience and their minute sense of making any
judgment. Though if they sustain any damage by their own actions
they will be liable for the negligence.
S.M. Railway Co. Ltd. v. Jayammal, (1924)
In the instant case, a 7-year-old girl was knocked down by an engine
while crossing the railway line. She was held responsible for the
damages as she was capable of understanding the danger and
discrimination while crossing the railway line.
Certain Rules
Rule of last opportunity
The term rule of the last opportunity means the last opportunity to
avoid an accident. If in a situation both the plaintiff and the defendant
are negligent on their part and whosoever has the last opportunity of
avoiding such consequences fails to do so will be held responsible for
such accident solely.
Illustration:
A is out for a walk with his dog but without a leash on him. The dog
suddenly ran towards the road and got hit by B who was driving
rashly. Here B had the last opportunity to avoid that accident by
pushing the brake pedal.
Limitations
Where the defendant is aware of the gravity of the consequences and
fails to take proper measure, he will be held liable.
For instance in the given example above if, B sees the dog from a long
distance and still avoids to take reasonable care which resulted in the
death of the plaintiff, he will be held liable.
Rule of Avoidable losses
Rule of avoidable losses means the duty of an injured person to mitigate
the losses or damages. The plaintiff after sustaining injury could make
appropriate efforts in order to reduce the effect of such injury. This
rule acts to disqualify the plaintiff to take any award for the injury if the
defendant can prove that the plaintiff ignored to make such efforts in
order to reduce the losses.
Strict liability
Strict liability means the liability of a person for causing damages even
if it is not his fault. This liability arises if a person keeps such dangerous
substances in his premise that is likely to cause mischief to the public
if it escapes the premise.
In Rylands vs Fletcher the defendant employed some independent
contractor in order to build a reservoir in which he had no active
participation. While the independent contractors were in the middle of
the construction, the discovered old coal shafts which were not
covered properly. Instead of taking reasonable measure and covering
the shafts they chose to work. This resulted in the immediate burst of
the reservoir which flooded the mine of the plaintiff. Plaintiff brought
a suit against the defendant in which it was held that the defendant
was responsible for the damages.
Contributory negligence is not a defence in case of strict liability
though the negligence or the ignorance from the side of the plaintiff
is used to reduce the compensation awarded for the damages.
Conclusion
It can be concluded that contributory negligence is the defence
available to the defendant which restricts or prevents the plaintiff to
get rewards or compensation. It is the omission of an act or ignorance
to take due diligence for avoiding the negligence of others. In the case
of contributory negligence burden of proof lies over the defendant.
There are certain conditions to which the defence of contributory
negligence doesn’t apply as mentioned above.
Q. 17. “The Vicarious Liability of Master does not depend on the lawful or
unlawful nature of acts of servant and the master would be liable for
alleged act of the servant which had taken place in course of his
employment even though the servant may have acted in contravention
of some provisions of the Law.” - Explain and illustrate the above
statement. Under what circumstances a master is not liable for the
torts committed by his servant?
Or
What are the exceptions to rule of master’s liability to third person?
Discuss.
Ans. Master and Servant Relationship
In a Master-Servant relationship, the master employs the services of
the servant and he works on the command of master and thus a special
relation exists between the two and in case of a tort committed by the
servant, his master is also held liable.
There are many cases in which the servant does an act for his master
and thus in law, it is deemed that the master was doing that act
himself, therefore if the servant commits an unlawful act the master
will also be held liable for the same. This liability of the master is
based on the following two maxims
1. 1.Qui facit per aliumfacit per se: – It means that whenever a person
gets something done by another person then the person is viewed
to be doing such an act himself.
Illustration: If A is the owner of many trucks and employs drivers to
drive them for the purpose of trade and in case one of his drivers
gets into an accident because of his rash driving, then even though
A did not drive the truck himself, he will be liable for the accident.
2. Respondant Superior: – It means that the superior should be held
responsible for the acts done by his subordinate.These two maxims
have played a significant role in the development of the law of
vicarious liability of the master.
Essentials of Vicarious liability in Master-Servant Relationship
These essential conditions have to be followed for the vicarious
liability of master to arise: –
1. The servant has committed an act which amounts to a tort.
2. Such a tortious act is committed by the servant during the course of
his employment under the master.
Reasons for liability of the Master
There are several reasons behind holding the master liable for the
acts of his servants which are: –
1. An act which is committed by the servant is considered to be done by
the master through him and therefore in the law of torts, it is assumed
that if any wrong is done by the servant, it has been committed by his
master indirectly and so the master is held liable for these wrongs.
2. The master is in a better financial position as compared to his servant
and thus in case of any loss caused by the tortious act of the servant,
the master is better suited to pay off the damages to the victim of the
act. Also, since the master is made liable he makes sure that all
reasonable care and precautions are carried so that he can avoid such
liability.
3. When a servant does any act, the benefit from such an act is enjoyed
by the master and thus for the liability arising out of the servant’s act,
the master should also shoulder that liability.
If a servant does a wrongful act in course of his employment the
master is liable for it. Their liability is joint and several. In KrishnaBus
Service Ltd. v. Smt. Mangli and others, AIR 1976 SC 700 a bus driven
by the employee of the appellant overturned causing death of husband
of respondent. The accident is said to have been committed for the
want of care of the driver, acting under the directions and instructions
of the employer. It was held that appellant company would be liable for
negligent act of its employee.
The reason for the maxim ‘Respondent superior’ seems to be because
of better position of Master being able to meet the claim because of his
larger pocket and also his ability to pass the burden of liability through
insurance. It is however important to point out that for the liability of
master to arise, following two essentials are to be present: -
(i) The tort was committed by his ‘servant’.
(ii) The servant committed the tort in the course of his employment.
For the purpose of vicarious liability even a friend, driving my car for
me, will be my agent. In Ormorod v. Grisiville Motor Service Ltd.,
(1653) 2 All E.R. 753, the owner of a car asked his friend to drive his
car. While the car was being (sic) collided with a bus. The owner of the
car was held liable.
In PushpabaiPurushottamUdeshi’s case, AIR 1977 SC 1735 Supreme
Court, summed up the law on vicarious liability of master for the acts
of servant and enlarged the scope of liability of master for acts of his
servant. While relying upon the judgment in Sita RamMotilalKalal’s
AIR 1966 SC 1697 has held that owner is not only liable for the
negligence of the driver if that driver is acting in the course of his
employment but also when the driver is his servant acting in driving
the car on owner’s business or for owner’s purpose.
The ambit of the vicarious liability of the owner for the acts of the
servant committed in the course of the employment was further enlarged
by the Supreme Court in State Bank of India v. Mrs. Shyama Devi, AIR
1978 SC 1263 that a master is liable for his servant’s fraud perpetrated
in the course of master’s business, whether the fraud was for the
master’s benefit or not, if it was committed by the servant in the course
of his employment approved. There is no difference in the liability of a
master for wrongs whether for fraud or any other committed by a
servant in the course of his employment, and it is a question of act in
each case whether it was committed in the course of the employment.
From the principle enunciated in the above noted two decisions of the
Supreme Court on the question of vicarious liability of the master, it is
evident that it does not depend on the lawful or unlawful nature of the
acts of the servant and the master would be liable for the alleged act of
the servant which had taken place in the course of his employment
even though the servant may have acted in contravention of some of
the provisions of the statute or the Rules made there under.
Master when not liable for servant’s tort
There are, however, certain cases in which a master will not be liable
for the tort committed by his servant, such as:-
1. Where he has temporarily lent a servant to another person - This is
based on the fact that the main ingredient in the definition of the
servant is his accessibility to the direct supervision and control of the
master. According to the same principle when a servant is lent to another
person then for all practical purposes he is acting under the order and
control of the employer to whom he has been lent. Hence he is in the
eye of law a servant of the temporary employer, even though in a
general sense he may be the servant of the master who lends him.
2. Where he has been obliged by law to employ a particular person, e.g.,
compulsory pilot. (The Ruby, (1890) 15 P.D. 139). In such cases the
master not having had freedom in the choice of his servants, is not
responsible for the latter’s conduct whom he was compelled to employ.
3. Where the relation between the parties is that of a head of a
Government department and an employee in that department, e.g., a
Divisional Superintendent of Railways would not be responsible for
the negligent act of the Station Master. In such cases the main liability
is that of the concerned Government, and not of the superior officer.
No doubt that the actual control is in the hands of the department
head, but the ultimate control and policy- making power is the
Government and even the superior officer is a servant for that matter.
4. That an employer will not be liable for acts of an independent contractor.
But in case of strict liability a master is held liable for, torts committed
by independent contractor.
Q. 18. Discuss and explain with the help of decided Judgements
the principles of sovereign immunity from tortuous liability
in India.
Or
Explain the “Doctrine of Sovereign Immunity”.
Ans. The doctrine of Sovereign Immunity holds that the state or the
sovereign can commit no legal wrong and is immune from civil suits
and criminal prosecution. The socio-legal structure today, demands an
echelon of the society that is free of inequalities, prejudice and bigotry.
An essential component that would help in nurturing such a community
would be the contribution of the politically strong and educated class
that would uphold such ideals and thus, the sanctity of our
Constitution. The doctrine of Sovereign Immunity, if practised in a
rightful manner, takes a step towards the formation of the same.
Introduction: Doctrine of Sovereign Immunity
This legal doctrine holds that the state or the sovereign can commit no
legal wrong and is immune from civil suits and criminal prosecution. It
is derived from the British common law principle, ‘rex non potest
peccare’, which translates into ‘the king can do no harm’. There are
two reasons suggested for holding this doctrine truthful:
• As an attribute of sovereignty, the state could not be sued in its own
courts without its consent,
• The award of compensation would sect the treasury of the Crown.
This concept is also founded on the theory that the King (of England
in this context) rules by divine right and therefore could not do any
wrong. This doctrine was brought to India by the Britishers who ruled
upon the Indian population and thus, Indian law acquired the doctrine
of sovereign immunity after Independence from colonial rule.
Doctrine of Sovereign Immunity in England
The English themselves have abandoned this doctrine and have created
a system with a statute that would serve the needs of the modern
society. This Statute is the Crown Proceedings Act, 1947. This Act
lays down various situations where the Crown may be held liable. The
process of transition from absolute sovereignty to restrictive
sovereignty was gradual in the United Kingdom. It culminated with
the passing of the State Immunity Act, 1978. Various decisions in the
United Kingdom rejected the absolute approach to state immunity in
favour of the restrictive approach. These decisions got legislative
validation and support via the State Immunity Act, 1978. This Act
lays down 12 major exceptions in which the State is allowed to claim
State Immunity. Doctrine of Sovereign Immunity in India In an attempt
to ensure that genuine victims would receive rightful damages, the
Indian Courts kept narrowing the scope of sovereign functions. The
first report of the Law Commission recommended the abolition of the
doctrine. However, the bill for the abolition of the doctrine could not
be passed in the Parliament and therefore, it was left upon the Courts
to decide the fate of the doctrine based on its compatibility with the
Constitution of India.
• Suing and getting sued by the government: The Constitution of India
The Constitutional provision that mentions the power and liability of
the State with respect to suits led by and against it, is Article 300.
Article 300 provides for when the Government of India and/or the
Government of any State may sue or be sued and that the same shall
happen subject to any provision of an Act of the Parliament or
Legislature of that State by the powers conferred to it by the
Constitution. If it is the Government of India that is being sued or
suing, then the same would happen in the name of Union of India and
if the same is happening with a State Government, then the name used
would be that of the State. Such suits can be instituted only in relation
to the respective lairs of the Government and the like cases that could
be instituted against or by the Dominion of India and its provinces
before the commencement of the Constitution of India. So long as the
Parliament does not enact a law with respect to this, the legal position
is the same as it existed before the commencement of the Constitution.
• Indian Patent Law and State Immunity
The Indian patent law also has provisions dealing with the liability of
the State when it infringes patent rights. Section 47 of the Indian Patent
Act,1970 provides a condition for being granted patent rights, “any
machine, apparatus or other article in respect of which the patent is
granted or any article made by using a process in respect of which the
patent is granted, maybe imported or made by or on behalf of the
Government for the purpose merely of its own use”. Here the ambit of
the phrase ‘use of government’ is left open-ended and there is no
provision for compensation to the patentee where such use is made.
Landmark Cases
1. State of Rajasthan v. Vidyawati (1962)
This was the rst case before the Supreme Court of India post
Independence with respect to this subject matter. In this particular
case, the driver of a jeep which was owned and maintained by the state
of Rajasthan was driven negligently while driving to the residence of
the Collector and fatally injured a pedestrian. Rejecting the State’s
contention of sovereign immunity, the Court said that it was not a
sovereign function to drive a jeep and the state must incur liability for
its actions. The Court also added that in present times, the State has
more pressing functions like welfare of its citizens and old feudalistic
notions of justice cannot be sustained.
2. Kasturi Lal Ralia Ram v. State of U.P (1965)
In another case, Kasturi Lal Ralia Ram v. State of U.P, a person was
taken into custody on suspicion of being in possession of stolen
property. His property, including some amount of gold and silver, was
consecrated and stored/deposited in a malkhana until the disposal of
the case. The gold and silver was misappropriated by a police constable
who stole the belongings of the person and end away to Pakistan. The
Appellant brought a case against the State of Uttar Pradesh for return
of the gold and silver and as an alternative, claimed damages for the
loss caused by the negligence of the Meerut Police. While the trial
Court decreed the suit, the High Court reversed the judgement on
appeal. When the case was brought before the Supreme Court, the
Apex Court noted that the police officials had been negligent in carrying
out their duties and had also ousted the Uttar Pradesh Police
regulations. In spite of this, the Court held that the tortious acts were
committed by the police officials in discharge of sovereign power as
their employment was of a category which could claim the special
characteristic of sovereign function and therefore, the State was not
liable for the damages claimed by the Appellant.
• Sovereign Immunity And The Violation Of Fundamental Rights:
Article 32 And 226
It is pertinent to note that the matter of Sovereign Immunity does
overlap with the violation of fundamental rights at the hands of the
State and in such a scenario, claiming sovereign immunity as a defence
in matters of custodial death and unlawful detention was a huge blot
on the commitment to respect and abide by human rights for the country
and its institutions. An important case in this respect is Nilabati Behra
v. State of Orissa. The facts of the case are that the petitioner’s son
was taken into police custody for investigation in the offence of a
theft in the village. The next morning, he was found dead on the railway
tracks with his hands handcuffed. The Court awarded compensation
to the Petitioner for the death of her son in police custody. The Court
also held that a claim in public law for compensation for contravention
of human rights and violation of fundamental freedoms based on a
Constitutional remedy that was meant to enforce fundamental rights
was distinct from, and in addition to the remedy in private law for
damages because of a tort. The Court thus held that the principle of
sovereign immunity does not apply to the public law remedies under
Article 32 and Article 226 for the enforcement of fundamental rights.
• Government Contracts And Sovereign Immunity
Government contracts and sovereign immunity do not go hand in
hand. With respect to government contracts, no sovereign immunity
can be claimed by the Union Government, State Governments, Public
Sector Undertakings or public bodies. Any dispute arising in these
matters have to be resolved in accordance with the general law. The
only difference is that the period of limitation that applies to the
Government in ling suit is Thirty years as against three years by
others. Additionally, neither the President nor the Governor or any
other person executing such contract shall be personally liable in
respect of any contract or assurance made or executed. The Supreme
Court has held that no civilised system should permit the Executive of
a nation to play with the lives and properties of the people and claim to
be sovereign in the same breath. Placing the State above the law is
unjust and unfair towards the citizen. No citizen should be left high
and dry due to loss suffered on account of the negligence of the
officers of that State. Providing a remedy in such cases is a must as
the same is the equivalent of holding the democratically elected state
accountable for its actions. Therefore, barring functions such as
administration of justice, maintaining law and order, repressing crime,
which are primary and inalienable features of a Constitutional
Government, the State cannot claim immunity in actions that it commits
or omits to do negligently.
Q. 19. Discuss fully the Rule of Absolute or Strict liability.
Or
Explain the rule laid down in Rylands V. Fletcher. Are there any
exceptions to this rule? Discuss.
Ans. The tort of strict liability had its origins in nuisance but this has
developed in such a way that it is now quite distinct for nuisance.
Liability for dangerous chattels is an instance of strict liability which
has been depicted by the rule in the leading case on the subject -
Rylands v. Fletcher.
This is the leading case which has developed the rule of strict liability
for the first time. It conceives the liability for the escape of dangerous
things.
Simply stated the rule of Strict liability’ makes the defendant liable for
accidental harms caused without any intention and negligence on his
part. In other words, sometimes the law recognises ‘no fault’ liability.
The undertakers of the hazardous or dangerous activities have to
compensate for the damage caused irrespective of any carelessness
on their part.
The basis of liability is the foreseeable risk inherent in the very nature
of the activities.
In Rylands v. Fletcher (1868) LR 3 HL 330, the defendant got a
reservoir constructed through independent contractors over his land
for providing water to his mill. When the reservoir was filled, water
flowed down the plaintiff’s neighbouring coal mine causing damage.
There was some negligence on the part of the contractors in not
properly sealing disused mine shafts which they had come across
during the construction of the reservoir and it was through those
shafts that the water flooded the plaintiff’s mine. As the engineers
were independent contractors, the defendants could not be made
vicariously liable for their negligence. Even though the defendant had
not been negligent he was held liable.
The basis of liability was laid down by Blackburn, J. in these words: -
“We think that the true rule of law is, that the person who for his own
purposes brings on his lands 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.”
Thus in this case the following principles were laid down by Blackburn,
J.
1. If a person brings dangerous substance upon his land which commits
mischief and injures the neighbour, the person who brings dangerous
substance is answerable even if he was not negligent.
2. In case of strict liability a person shall be held responsible even if he
was not negligent.
3. A person may use his land in natural way. But if he constructs
something upon that land which commits mischief, the person who
does something upon his land shall be responsible. This rule is
technically known as principle of strict liability which was laid down
in Ryland v. Flecther.
The rule of strict liability has been approved and followed in many
subsequent decisions in England. A recent decision in recognition of
said doctrine is rendered by House of Lords in Cambridge Water Co.
Ltd. v. Eastern Counties Leather Pl. 1994(1) All Eng. Law Reporters
(HL) 53. Said principle gained approval in India. A Constitution Bench
of Supreme Court in CharanLalSahu v. Union of India, AIR 1990 SC
1480 and Division Bench in Gujarat State Road Transport Corp. v.
Raman BhaiPrabhatBhai, AIR 1987 SC 1690 had followed the
principle of Rylands v. Fletcher.
In M.C. Mehta v. Union of India, AIR 1987 SC 1086 Supreme Court
had even gone beyond the rule of ‘strict liability’ by holding that
“Where an enterprise is engaged in a hazardous or inherently
dangerous activity and harm is caused on any one on account of the
accident in operation of such activity, the enterprise is strictly and
absolutely liable to compensate those who were affected, by accident,
such liability is not subject to any of the exceptions to principle of
strict liability under the rule in Rylands v. Fletcher.”
So, strict rule liability was converted into absolute liability. Recently
Supreme Court in M.P. Electricity Board v. Shail Kumar, AIR 2002 SC
551 while relying on judgment of Supreme Court in W.B. Electricity
Board v. Sachin, AIR 2000 SC 3629 had held that the responsibility to
supply electric energy in particular locality is statutorily conferred on
Electricity Board. If energy so transmitted cause injury or death of a
human being who gets unknowingly trapped into it, the primary liability
to compensate the sufferer is that of supplier of the electric energy on
the principle of ‘Strict Liability’.
Exceptions to ‘Strict Liability Rule’
Following are exceptions to the rule of ‘Strict Liability’ as recognised
by Rylands v. Fletcher and some other subsequent decisions:
1. Damage due to natural user of the land - If a person uses his land in a
very natural manner but on account of such use his neighbour suffers,
the natural user of the property shall not be responsible. In Ryland v.
Fletcher it was held by the court that it is not every use to which the
land is put that brings the rule in operation. Growing ordinary trees,
erecting houses, bringing gas, electricity or water on land for the
purpose of ordering domestic supply are the example of natural use of
the land.
Lawrence, L.J. in Barlett v. Tottenham, (1932) Ch. 131, laid down the
principle relating naturally on land as under -
“Broadly the rule in Ryland v. Fletcher applies only things artificially
brought or kept upon the defendant’s land, and has no application to
things which are naturally there. Even in the case where things are
artificially brought or kept upon the defendant’s land, question may
arise whether the defendant is liable to his neighbour for their escape
if he is only putting his land to `its natural use.”
2. Consent of the Plaintiff - This exception follows the principle of violenti
non fit injuria.Where the plaintiff has expressly or impliedly consented
to the presence of the source of danger for common benefit of the
plaintiff and defendant, the rule in Ryland v. Fletcher will not apply.
For instance, if A and B are neighbors, and they share the same water
source which is situated on the land of A, and if the water escapes and
causes damage to B, he cannot claim damages, as A would not be liable
for the damage.
In Cortirs v. Taylor 1871 L.R Ex. 217 - the defendant was the plaintiff’s
landlord and was living in the upper storey. The defendant maintained
a rain-water box for the benefit of both of himself and the plaintiff.
Some rats gnawed the rain-water box with the result the water escaped
and damaged plaintiff’s goods below.
It was held that - as the water box was maintained by the defendant
with the consent of the plaintiff, no action would lie.
3. Things not essentially dangerous - If such things are brought upon
the land which are not essentially dangerous then the rule of strict
liability shall not apply.
4. Negligent Plaintiff - The rule does not apply where the escape is due
to the plaintiff’s negligence or default and the defendant excuses
himself by showing that the default was of the plaintiff.
If the plaintiff is at fault and any damage is caused, the defendant
would not be held liable, as the plaintiff himself came in contact with
the dangerous thing.
In the judicial pronouncement of Ponting v. Noakes, the plaintiff’s
horse died after it entered the property of the defendant and ate some
poisonous leaves. The Court held that it was a wrongful intrusion, and
the defendant was not to be held strictly liable for such loss.
In Eastern and S.A. Telegraph Co. Ltd. v. Capetown Tramways Co.
Ltd., (1902) the defendants stored electricity for the purpose of running
their tramways. Some of this electricity escaped and interfered with
and injured sensitive apparatus. It was held that the defendants were
not liable as minimum damage that had been sustained was caused
due to super-sensitivity of their equipment.
5. The Act of a Stranger or Third Party - The rule also does not apply
when the damage is caused due to the act of a third party. The third
party means that the person is neither the servant of the defendant,
nor the defendant has any contract with them or control over their
work. But where the acts of the third party can be foreseen, the
defendant must take due care. Otherwise, he will be held responsible.
For instance, in the case of Box v. Jubb, where the reservoir of the
defendant overflowed because a third party emptied his drain through
the defendant’s reservoir, the Court held that the defendant would not
be liable.
In Perry v. Kendricks Transport Ltd., (1956) W.L.R. 85, the defendants
parked their couch in their park which was bordered with some waste
land. The defendants removed the petrol from the couch but during
their operation a small boy threw a lighter match to petrol tank which
resulted in explosion. An infant plaintiff who was crossing the waste
land was severely burned. It was held that - defendants were not liable
for his injuries under rule in Ryland v. Fletcher because explosion was
resulted due to an act of stranger.
6. Statutory authority - The rule does not apply where the defendant is
empowered or authorized or required under the law to accumulate,
keep or collect the dangerous thing which escape or cause mischief
and injure the plaintiff.
In Green v. Chelsea Waterworks, (1894) 70 L.T. 547 - the defendants
were authorized by statute to store water for the purpose of supply to
the city. Owing to some accidental cause, the water escaped and caused
injury to the plaintiff. The defendants were held not liable on the
principle of Rylands v. Fletcher because the defendant was authorized
by statute to store water for the purpose of supply to the city.
7. Act of God or Vis Major (recognised in Rylands) -The phrase “act of
God” can be defined as an event which is beyond the control of any
human agency. Such acts happen exclusively due to natural reasons
and cannot be prevented even while exercising caution and foresight.
If the escape has been unforeseen and because of supernatural forces
without any human intervention the defence of act of God can be
pleaded. Thus, storm, tempest, lightning, extraordinary rain fall, etc.
fall under the category of act of God.
The phrase vis major means something abnormal i.e. the property by
the act of God has been rendered useless. Before an act of God may be
admitted as an excuse, the defendant must himself have done all that
he is bound to do. The mere fact that vis major coexisted with or
followed on the negligence is no adequate defence.
The defendant would not be liable for the loss if the dangerous
substance escaped because of some unforeseen and natural event
which could not have been controlled in any manner.
If the embankments of ornamental lakes give way due to extraordinary
rainfall the person so collecting the water would not be liable under
the rule (Nicholas v. Marsland). But in Greenock Corpn. v. Caledonian
Railway (1917) AC 556, the court held otherwise. In that case the
Corporation obstructed and altered the course of a stream by
constructing a paddling pool for children. Due to extraordinary rainfall
a great volume of water which would normally have been carried off by
the stream overflowed the pad and caused damage to plaintiff’s
property. Held that the rainfall was not an act of God and the
Corporation was liable as it was their duty “so as to work as to make
occupiers on a lower level as secure against injury as they would have
been had nature not been interfered with.”
The rule of absolute liability, in simple words, can be defined as the
rule of strict liability minus the exceptions. In India, the rule of absolute
liability evolved in the case of MC Mehta v Union of India.This is one
of the most landmark judgment which relates to the concept of absolute
liability.
The facts of the case are that some oleum gas leaked in a particular
area in Delhi from industry. Due to the leakage, many people were
affected. The Apex Court then evolved the rule of absolute liability on
the rule of strict liability and stated that the defendant would be liable
for the damage caused without considering the exceptions to the strict
liability rule.
According to the rule of absolute liability, if any person is engaged in
an inherently dangerous or hazardous activity, and if any harm is caused
to any person due to any accident which occurred during carrying out
such inherently dangerous and hazardous activity, then the person
who is carrying out such activity will be held absolutely liable. The
exception to the strict liability rule also would not be considered. The
rule laid down in the case of MC Mehta v. UOI was also followed by
the Supreme Court while deciding the case of Bhopal Gas Tragedy
case. To ensure that victims of such accidents get quick relief through
insurance, the Indian Legislature passed the Public Liability Insurance
Act in the year 1991.
Conclusion
The rule of strict liability and absolute liability can be seen as
exceptions. A person is made liable only when he is at fault. But the
principle governing these two rules is that a person can be made liable
even without his fault. This is known as the principle of “no fault
liability.” Under these rules, the liable person may not have done the
act, but he will still be responsible for the damage caused due to the
acts. In the case of strict liability, there are some exceptions where the
defendant would not be made liable. But in the case of absolute liability,
no exceptions are provided to the defendant. The defendant will be
made liable under the strict liability rule no matter what.
Q. 20. What do you understand by the expression ‘Malicious Criminal
Prosecution’? What facts have to be proved by plaintiff for claim
damages for ‘Malicious prosecution.”?
Or
What do you understand by the malicious prosecution? Explain fully
with the help of leading case provided in your course.
Ans. Malicious prosecution occurs when one party knowingly and with
malicious intention initiate a baseless litigation against the other party.
This can include both criminal charges and as well as civil claim, for
which the cause of action is essentially the same. Malicious Prosecution
is described under Law of Torts and also under Indian Penal code. It is
an abuse to the Judicial System as it aims to provide justice to innocent
people but under Malicious Prosecution, innocent people are convicted.
Under this the defendant becomes plaintiff and plaintiff becomes
defendant.
According to a case Riegel v. Hygrade Seed Co.1942, Malicious
Prosecution is for the recovery of damages to person, property, or
reputation, shown to have approximately resulted from a previous civil
or criminal proceeding, which was commenced or continued without
probable cause, but with malice, and which has terminated
unsuccessfully.
In the case of West Bengal State Electricity Board v. Dilip Kumar
Ray,the Court defined the term “malicious prosecution” in the following
words:-
“A judicial proceeding instituted by one person against another, from
wrongful or improper motive and without probable cause to sustain it
is a malicious prosecution.”
The Court in the same case laid down the distinction between “an
action for malicious prosecution” and “an action for abuse of process”
in the following words:
“A malicious prosecution consists in maliciously causing process to
be issued, whereas an abuse of process is the employment of legal
process for some purpose other than that which it was intended by the
law to affect the improper use of a regularly issued process.”
In Kumputty Sahib v. Veerankuty,1950, It was observed that Malicious
criminal prosecution is the institution against an innocent person of
unsuccessful criminal proceedings without reason and probable cause
and in a malicious spirit that is from an indirect and improper mode and
with the motive of causing damage of the plaintiff in person, pocket or
reputation.
ORIGIN/HISTORY
The history or the origin of malicious prosecution can be traced back
to the writ of conspiracy which was in existence as early as Edwards
I’s reign. Malicious prosecution has its origin in England and evolved
in 18th and19th century. It was an outcome of misusing the due
procedure of law since 18th and 19th century in England. Later it spread
its wings across the globe, in different countries. This was more
witnessed in common wealth countries since they had a great influence
of the English laws in their countries. Malicious prosecution has also
caught a very strong footing in the United States, probably because of
holding the person’s liberty and reputation in the highest regard.
ELEMENTS OF MALICIOUS PROSECUTION
The following are the essential elements which the plaintiff needs to
prove in a suit for damages for malicious prosecution:
(a) Prosecution by the defendant.
(b) Absence of probable/ reasonable cause.
(c) Defendant acted maliciously.
(d) Termination of the proceedings in the favour of the plaintiff..
(e) Plaintiff suffered the damage as a result of the prosecution
PROSECUTION BY THE DEFENDANT
It is necessary for plaintiff to prove that he was prosecuted by
defendant, of which he was acquitted. Prosecution here means a criminal
prosecution rather than a civil action. Prosecution means criminal
proceedings against a person in a court of law. Proceedings before the
police are proceedings anterior to prosecution. A prosecution is there
when a criminal charge is made before a judicial officer or a tribunal.
In the case of KhagendraNath v. Jacob Chandra, the Court held that
merely bringing the matter before the executive authority did not amount
to prosecution and, therefore, the action for malicious prosecution
could not be maintained.
As per the deliberations in the NagendraNath Ray v. Basanta Das
Bairagya case, after a theft had been committed in the defendant’s
house he informed the police that he suspected the plaintiff for the
same.Thereupon the plaintiff was arrested by the police but was
subsequently discharged by the magistrate as the final police report
showed that there was no evidence connecting the plaintiff with that
theft. In a suit for malicious prosecution it was held that it was not
maintainable as there was no prosecution at all because of the mere
police proceedings are not same thing as prosecution.
Similarly, when a police officer, after making the enquiries, finds the
complaint to be false and files it, there is no prosecution
(BolanandaPemmaya v. Ayaradara case).
The word “prosecution” carries a wider sense than a trial and includes
criminal proceedings by way of appeal, or revision. In the case of
Musa Yakum v. Manilal, it was held that it is no excuse for the defendant
that he instituted the prosecution under the order of a Court, if the
Court was moved by the defendant’s false evidence to give the order.
The prosecution is not deemed to have commenced before a person is
summoned to answer a complaint. Prosecution should be made by the
defendant. A prosecutor is a man who is actively instrumental in putting
the law in force for prosecuting another. Although criminal proceedings
are conducted in the name of the crown but for the purpose of malicious
prosecution, a prosecutor is the person who instigated the proceedings
(Bolbhaddar v. Badrisah case and Gaya Prasad v. Bhagat Singh case).
ABSENCE OF PROBABLE AND REASONABLE CAUSE
The plaintiff has also to prove that the defendant prosecuted him
without reasonable and probable cause. There is reasonable and
probable cause when the plaintiff has sufficient grounds for thinking
that the plaintiff was probably guilty of the crime imputed. Neither
mere suspicion is enough, nor has the prosecutor to show that he
believed in the probability of the conviction.
The burden of proof lies on the plaintiff to show that there was an
absence of reasonable and probable cause. If there is reasonable and
probable cause for the prosecution, malice is immaterial because
existence of reasonable cause in the plaintiff’s mind is sufficient
defence. It is not necessary that the facts believed by the prosecutor
should be true. It is, however, necessary that the prosecutor should
honestly believe them to be true. The prosecutor’s belief should be
based on enquiry. Acting on the lawyer’s advice is a good defence
provided the lawyer has been fully and fairly acquainted with all the
relevant facts within the defendant’s knowledge.
In the case of Antarajami Sharma v. PadmaBewa,it has been said that
law is settled that in a case of damages for malicious prosecution,
onus of proof of absence of reasonable and probable clause rests on
the plaintiff.
The existence of reasonable and probable cause is of no avail if the
prosecutor prosecuted in ignorance of it. The dismissal of a prosecution
or acquittal of the accused does not create any presumption of the
absence of reasonable and probable cause. If a man prefers an indictment
containing several charges, whereof for some there is, and for others
there is not, probable cause, his liability for malicious prosecution is
complete.
In Smt. Maniben v. SohrabPeshottamKotwar case, the lawyer was
misled and was provided with such facts which the defendant knew to
be false. In the prosecution on the basis of such advice there was held
to be want of reasonable and probable cause and also malice for which
the defendant was held liable. The absence of reasonable and probable
cause should not be presumed from the dismissal of a prosecution or
acquittal of the accused.
DEFENDANTACT MALICIOUSLY
The plaintiff has to prove that the defendant acted maliciously in
prosecuting him. It means that the defendant is actuated not with the
mere intention of carrying the law into effect, but with an intention
which was wrongful in point of fact. It means a wish to injure the
plaintiff rather than to vindicate the law. Absence of reasonable and
probable cause and existence of malice have to be proved separately.
Moreover, prosecution does not become malicious merely because it
is inspired by anger. Acquittal of the plaintiff also is no evidence of
malice.
In the case of Bank of India v. Lekshmi Das, the Court reiterated the
Indian position that in malice prosecution absence of a probable and
reasonable cause must be proved.
The proceedings complained of by the plaintiff must be initiated in a
malicious spirit that is from an indirect and improper motive and not in
furtherance of justice. Malice may be inferred upon proof of absence
of honest belief in the accusation and consequent want of reasonable
and probable cause for instituting the prosecution complained of.
[BhimSen v. Sita Ram, (1902)]
It is not necessary that the defendant should be acting maliciously
right from the moment the prosecution was launched. If the prosecutor
is innocent in the beginning but becomes malicious subsequently, an
action for malicious prosecution can lie. If during the pendency of
criminal prosecution, the defendant gets positive knowledge of the
innocence of the accused, from that moment onwards the continuance
of the prosecution is malicious.
TERMINATION OF PROCEEDINGS IN THE FAVOUR OF THE PLAINTIFF
It is essential that the prosecution terminated in favour of the plaintiff.
If the plaintiff has been convicted by the court he cannot bring an
action for malicious prosecution even though he can prove his
innocence and also that the accusation was malicious and unfounded.
Termination in favour of the plaintiff does not mean judicial
determination of his innocence; it means absence of judicial
determination of his guilt. It is enough if the plaintiff has been acquitted
on technicality, conviction has been quashed, or the prosecution has
been discontinued, or the accused is discharged.
Malice need not be a feeling of enmity, spite or ill will or spirit of
vengeance but it can be any improper purpose which motivates the
prosecutor, such as to gain a private collateral advantage.
No action can be brought when the prosecution or the proceedings
are still pending. It is a rule of law that no one shall be allowed to allege
of a still pending suit that it is unjust.
PLAINTIFF SUFFERED DAMAGE AS A RESULT OF THE PROSECUTION
It has also to be proved that the plaintiff suffered damage as a
consequence of the prosecution complained of. Though the
prosecution ends in acquittal, the plaintiff may have suffered damage
to his person, property or reputation by it for which he can claim
compensation.
In a suit for damages for malicious prosecution, it is another essential
element which the plaintiff is required to prove that the plaintiff suffered
damage as a result of the prosecution. In a claim for prosecution, the
plaintiff can thus claim damages on the following three counts:-
a. DAMAGE TO THE PLAINTIFF’S REPUTATION
One of the important sources of pleasure in a man’s life is a good
reputation, and the most traumatising pain is a bad reputation. A good
reputation means that the man has garnered good will in the society,
and that is the greatest source of pleasure to him. Each and every
person works his whole life trying to maintain good will. A good will
often relates to moral values. The biggest pain in a person’s life is a
bad reputation. A bad reputation in society negates the work of a
person who is trying towards creating a good will. Moreover, a bad
reputation also brings along the ill will of the society, as well as social
non-acceptance and this is in direct deprivation of the fundamental
right of right to life.
b. DAMAGE TO THE PLAINTIFF’S PERSON
The amount of physical injury can also be involving through a
maliciously instituted proceeding. Criminal charges often include arrest
as an important consequence of the procedure once the law is set. The
injury and the damages to the person may have an effect in case of
arrest due to malicious prosecution. Also the unnecessarily and
unjustly the person would have to sacrifice their personal liberty and
freedom. Furthermore, this trauma is bound to cause great mental stress
to the aggrieved person. Therefore, malicious prosecution case is
capable of causing a great deal of injury to the person who is on the
receiving end of a maliciously instituted proceeding.
c. DAMAGE TO THE PLAINTIFF’S PROPERTY
An unjust and malicious prosecution means that the person who is
accused of has to use his resources and money in defending the
prosecution. This unnecessary expenditure in large amount is an injury
to his property.
CONCLUSION
It can be said that the malicious proceedings are that proceedings
which are initiated with malicious intent. The elements (i.e. prosecution
by the defendant, absence of reasonable and probable cause, defendant
acted maliciously, termination of proceedings in the favour of the
plaintiff and plaintiff suffered damage as a result of the prosecution)
which are necessary to the plaintiff to prove in a suit for damages for
malicious prosecution must be fulfilled. However, on the basis the
facts and circumstances, the Court should decide whether the suit is
filed maliciously or not.
Q. 21. What do you understand by the term “Trespass to the person with
reference to the law of torts”? What are its kinds? Discuss assault
and Battery.
Ans. Trespass to person means a direct or an intentional interference with
a person’s body or liberty. Wrongs affecting safety and freedom of the
person are termed as trespass. A person is said to have committed
trespass to person when he is guilty of direct and forcible bodily
interference with another without latter’s consent and such trespass
is actionable at the suit of the latter whether he has sustained any
actual damage.
Definition:
Interference, however slight with a person’s elementary civil right to
security of person, and self-determination in relation to his own body,
constitutes trespass to person. Trespass may be done intentionally,
deliberately or negligently. The fundamental principle plain and
incontestable law is that every person’s body is inviolate.
It is the causing of apprehension of unreasonable interference with
one’s person and body as well as a third person and includes usage of
force causing damage and impairment in the body. The trespasser,
with an ulterior intention, transgresses the right of another and makes
an alteration in it with the objective to cause wrongful loss or wrongful
gain as the case may be. It is considered as intentional even if the
wrongdoer did not know that the property belonged to another.
Trespass to person may be categorized as:
1. Assault, which is “any act of such a nature as to excite an apprehension
of battery”;
2. Battery, “intentional and unpermitted contact with the plaintiff’s person
or anything attached to it and practically identified with it”; and
3. False imprisonment, the “unlawful obstruction or deprivation of
freedom from restraint of movement.”
Assault
Meaning: The word “assault” isderived from a Latin word “ adsaltus”
where “ad” means “upon” and “saltus” means “leap” and “adsaltus”
means to lean upon. Hence “assault” means “a sudden attack.” An
assault is an attempt or threat to cause harm to another without any
actual contact.
Definition of Assault:
According to Winfield, “assault is an act of defendant which causes
to the plaintiff reasonable apprehension of the infliction of battery on
him by defendant.”
Section 351 of Indian Penal Code, 1860, provides that:
“whoever makes a gesture or any preparation intending or knowing it
to be likely that such gesture or preparation will cause any person
present to apprehend that he who make that gesture or preparation is
about to use criminal force to that person is said to commit an assault”
The essentials of Assault are –
1. Intent to Cause apprehension – Assault must have intent. If a victim
has a reasonable circumstance to believe that the tortfeasor is about
to harm him, then an assault has taken place.
In the case of R v. S. George, it was held that pointing a pistol at one
person, whether or not it is loaded from a distance that could cause
injury was held as an assault.
2. Imminent Harm – It is essential that there should be a prima facie
ability to do the harm. If the fist or stick is shown from a distance and
incapable of doing harm, then it cannot be considered as assault. The
harm should be immediate and cause reasonable apprehension in the
mind of any prudent person.
Some landmark cases that defined the scope of liability in assault are
–
R v. Meade and Belt– In this case, it was held that singing menacing
and threatening songs around the plaintiff’s house is not an assault.
R v. Constanza – The defendant started a hate campaign against an ex-
colleague by sending hate letters, following her home, writing offensive
words on her door and so on. The defendant contended that mere
words do not amount to assault. The judges overruled the rule from
the case of R v. Meade and Belt and the defendant was convicted of
assault.
Stephen v. Myers– The plaintiff was the chairman of a Parish meeting,
and the defendant was also seated at the same table. During the
proceedings, the defendant became angry and interrupted the meeting.
The other members voted to expel him from the meeting. The defendant
advanced upon the chairperson to hit him but was stopped. The
defendant was held liable for assault.
Hopper v. Reeve– If a person is about to sit on a chair and the chair is
pulled; there is an assault as long as he takes to fall to the ground. The
moment he makes contact with the ground, it will become a battery.
Battery
Meaning of Battery:
Battery means “any unlawful touching of another without justification
or excuse.” If the physical contact that is apprehended in an assault
actually takes place, the tort of batter has been committed.
Definition of Battery:
According to Winfield, “Battery is the intentional use of force to
another person without legal justification”
THE INDIAN PENAL CODE, 1860 classifies battery as an offence under the
title criminal force. Section 350 of the IPC defines criminal force as,
“whoever intentionally uses force to any person, without that person’s
consent in order to the committing of any offence or intending by the
use of such force to cause or knowing it be likely that by the use of
such force he will cause injury, fear or annoyance to the person to
whom the force is used is said to use criminal force to that other” or in
other words he commits battery.
The essentials of battery are as follows:
1. Use of Force – Battery is the use of force against another person
without any justification. The wrong is constituted no matter how
small or trivial the force may be and even if no such harm is caused to
the victim. Force does not always need to mean bodily harm. It can be
caused through use of other things like a stick, bullet, heat, light, etc.
2. Without lawful justification – It is imperative that the use of force
should be intentional and should not have any lawful justification. It
is impossible for humans to survive without having physical contact
with each other. Not every physical contact constitutes a battery. When
the contact is aggressive, and none required it may become a battery.
However, the use of force is justified when it comes to the saving of a
person’s life.
In Leigh v. Gladstone, the force-feeding of a hunger-striking prisoner
to save his life was held as a valid defence for battery. Any injury that
is caused unintentionally or by accident is also not considered as a
battery.
In Stanley v. Powell, the defendant was a part of a shooting party, and
he aimed to fire at a bird, but the pellet accidentally wounded the
plaintiff, who was another member of this party. It was held that the
defendant was not liable as the act was not willful. Use of force to oust
a trespasser is also justified, but it should be reasonable.
In Cherubin Gregory v. State of Bihar, it was held that fixing a live
electric wire, without due warning to keep trespassers away and causing
the death of such trespasser was actionable.
Mayhem
Mayhem means “maims” I.e., rendering any art of the human body
useless. Mayhem is a tort that causes severe injury to the victim such
that he is unable to defend himself from the defendant. Where assault
refers to the threat of battery, and battery is the physical usages of
force against a person and mayhem deals with disfigurement or loss of
any body part due to physical injury caused by the tortfeasor. Hence,
it is an aggravated form of battery. Disabling of an arm hand, finger leg
foot or eye are examples of mayhem.
Fetter v. Beale– The plaintiff had recovered damages from the
defendant for an action of battery. Shortly thereafter, “part of his skull
by reason of the said battery came out of his head”, and the plaintiff
brought a subsequent action under mayhem. Through this case, the
scope of mayhem was also expanded to loss of skull.
Assault takes before the crime of battery is committed and mayhem is
a severe form of battery. All these 3 torts are associated with each
other and form an integral part of criminal as well as tort law.
False Imprisonment
Meaning of False Imprisonment: False imprisonment primarily falls
under the ambit of trespass to person. False imprisonment occurs
when a person intentionally restricts another person from exercising
his freedom.
Definition of False Imprisonment:
According to Winfield, “infliction of bodily restraint which is not
expressly or impliedly authorized by law.”
It must be said that false imprisonment falls under both civil law in the
form of tort and is also a criminal offence. Section 340 of the INDIAN
PENAL CODE, 1860 addresses the false imprisonment by the term
“wrongful confinement” as-
“When a person wrongfully restrains any other person to prevent that
other person from proceeding beyond certain circumscribing limit is
called “wrongful confinement.”
For example: To lock a person in a room without permission from him/
her.
On failing to pay the bill, a customer is detained by the respective
business owner.
Article 22 of the Indian Constitution provides for protection against
unlawful arrest and casts an obligation upon the state to follow due
procedure while carrying out arrest related activities.
Section 43, CrPC provides for arrest by a private person if the offender
is a proclaimed habitual offender and is alleged to be liable for a
cognizable and non-bailable offence.
Conclusion
Trespass to person is a general tort which is faced in our day to day
life. People suffer a lot of difficulties because of these acts but due to
unawareness they do not file suits of trespass to person even though
when a suffer harm due to these interferences. In fact, in Indian society
people are so much unaware of their rights that they go on facing
problems without protesting.
Q. 22. When does an action lie for assault and battery? In what circumstances
may assault and battery justified? Differentiate between Assault and
Battery.
Or
What are the essential elements of Assault and battery? And discuss
the defence available in suit of Assault and Battery.
Ans. Assault as a civil tort is an act of the defendant which gives the plaintiff
a fair apprehension of the battery being inflicted on him by the
defendant. Thus, when the defendant, by his actions, creates
apprehension in the minds of the plaintiff that a battery may occur
against him, an assault takes place. In case of assault charges, they
must include behaviour that is aggressive, offensive or causes a person
to fear for their protection. Therefore, for claiming assault no physical
injury or damage is required. It was in the case of R. V. S. George the
court held that if a person is holding a loaded gun to another person
then this will be treated as an assault. Even if the gun is not loaded but
the person is holding a gun from such distance that it may cause injury
then maybe an assault.
ELEMENTS OFASSAULT:
1. The intention of the defendant: inorder to create an attack, the actions
of the defendant must be motivated to create a situation of fear or
danger in the mind of the victims. Accidental acts do not include
allegations of assault.
2. Reasonable apprehension: the victims must reasonably assume that
the actions of the defendant would injure or humiliate him. The victim
must consider the potentially damaging or offensive behaviour of the
defendant.
3. Imminent harm/ threat: the person’s apprehension of danger should
be of an imminent threat. Future threats like,” I will kill you tomorrow”,
would not qualify for assault charges. Only words do not constitute a
threat for an attack, it is necessary for them to be accompanied by a
possibility of physical harm.
It is alleged that the conduct of the defendant will trigger the victim
physical danger or aggressive behaviour. Thus the pretence of kicking
or punching the victim can be an assault, as well as an attempt to spit
on the victim (aggressive behaviour).
R v. Constanza, in this case the defendant uses the word will show the
gesture it may harm her, he used to follow her, send her letter and write
offense words on the door. The court overruled the judgement of R v.
Meade and Belt and held that the word which is used by the defendant
is offensive and does commit an assault.
Hopper v. Reeve, if a person is about to sit on a chair and the chair is
pulled, there is an assault as long as he takes to fall to the ground. The
moment he makes contact with the ground, it will become a battery.
DEFENCES FOR ASSAULT:
There are certain defences to the charges of assault, which may vary
among each individual case.
1. Act of Self defence: this defence can be used by claiming that the
defendant was acting out of self-defence. However, this is not absolute;
the aggression due to self-defence should be in proportion to the
force acting against. In order to create self-defence, certain criteria
need to be fulfilled:
· A danger of unlawful force or damage to it;
· A true honest perceived fear of harm to themselves;
· No harm or provocation on their part;
· There was no fair possibility to escape or avoid opposing force.
For instance, A was walking through a quiet road at night, when he
encountered B who threatened him to punch with a tight fist. Seeing
no way to go, A takes out his gun to threat B. Here A can claim that he
acted out of self-defence.
2. Intoxification: In certain situations, intoxication can be a legal defence,
particularly in cases where intoxication affects the capacity of an
individual to act deliberately.
3. Coercion: This may be a defence if the defendant has been forced to
attack under threat of harm (for example, if he is being held at a gunpoint
and for assault at the behest of someone).
BATTERY: INTRODUCTION
The battery is a tort which can be defined as:
“An intentional and direct application of physical force to the body of
another person in a harmful or offensive manner without the person’s
consent”.
Generally, assault is followed by a battery and that is why they may be
used together. Therefore, it is only considered where there is direct
physical contact without the permission of the individual to injure the
person concerned.
ELEMENTS OF BATTERY:
1. Intention: For the tort of battery, it is important that coming in contact
with the defendant with the victim, was accompanied by the intention
to cause make a contact. Basically, non-consensual contact is what is
required. The intent of the battery is transferable as when a person
attempts to hit a person without his or her permission and ends up
hitting another person, but the person is still responsible for the battery.
So, the intent is the soul of the battery, and it isreally necessary.
2. Contact: Contact or use of force is a prerequisite to initiating the tort
of battery. Whether any physical harm is caused or not does notactually
matter here. However, it is not mandatory that the contact should be
direct or individual, but physical contact with indirect means also
qualifies for physical contact. Thus, there are two means of contact:
(a) Direct contact:For example, hitting a person with a fist.
(b) Indirect or hostile contact:For example, throwing water on a person’s
face. Damaging people with change in heat, smell, odour, light is often
known to be the battery.
3. Harm: Another prerequisite for the battery is damage or harm. Harm,
here, is not only confined to physical harm but it can be of any kind,
emotional, mental, etc. The victim might have suffered negligible harm,
there is no requirement of any severe damage. Unwanted sexual contact
or uncomfortable contact without permission often comes under the
battery, as it affects a person physically, emotionally and mentally.
4. Lack of consent: It is necessary that the victim must not be aware of
the actions expected or planned by the accused. The battery can only
occur when the victim has no idea of the touch that was about to
happen. For example, in three cases, the battery is a legal hazard. If the
patient has been lied to about care or if there is further deception in the
informed consent, the full consent is null. The second case is that the
patient is incompetent to consent and receives insufficient treatment.
The most likely scenario is the third: the patient has denied treatment
and is compelled to take care of him or her, normally in an involuntary
environment.
5. Lack of legal justification: In the case of the battery, there must not be
any legal reason or cause to the conduct of the accused. The plaintiff
must show that the force used by the accused was unconstitutional
and was not justifiable. For example, A was going to a club. But at the
entrance, he was stopped for he was not of the acceptable age. He
forced the guards to let him enter and consequently they pushed him
back. Here, A cannot claim for the battery as there was a legal
justification to the act.
Leigh v. Gladstone, In this case court pointed out that intention is the
necessary element to prove the guilty to the accused. The force is
used by the accused to feed the hunger strike prisoner to save their
life was a valid defence. Any injury caused during the course of action
was unintentional or injury is caused by accident, this accident will do
not constitute offence of Battery.
Stanley v. Powell, the court held that the defendant was not liable as
the act was not wilful. Use of force to oust a trespasser is also justified,
but it should be reasonable.
DEFENCES TO BATTERY:
1. Self-defence: It is one of the most common defences used in battery
cases. It means defending or safeguarding yourself from the force or
power of another person. Thus, it is formed that the acts of the accused
were actions out of self-defence to the force of the victim.
2. Consent: Consent can also be viewed as a protection in the event of
an attack and a battery. The consent is granted when the individual
willingly agrees to the intent of the defendant. Thus if the person has
given his or her consent to conduct the act, the same act cannot be
treated as a battery. However, in cases where the individual exceeds
the reach of the act, the act can, on such grounds, be treated as a
battery.
Assault Battery
Every assault does not Every battery includes assault.

include battery. Battery is an aggravate form o f
assault.
Assault is the attempt to Battery includes intentio nal
commit battery. application of force to another
person without any lawful
justification.
This is done to threaten a This done to cause harm to a

person person.
here physical contact is In battery there mu st be a
not necessary physical contact
For an Assault a mere For a battery there must be an

apprehension of danger is actual application of physical
sufficient. force.
Conclusion
The main elements of assault are first, the plaintiff apprehended
immediate physical contact, second, the plaintiff had reasonable
apprehension and third, the defendant’s act of interference was
intentional while elements for battery are first the act is done with the
intention of bringing about a harmful or offensive contact or an
apprehension thereof to the other or a third person, and second the
contact is not consented to by the other or the other’s consent thereto
is procured by fraud or duress, and third the contact is not otherwise
privileged.
The defendant can use certain defenses laid down in several cases
such as self-defense, consent, statutory authority etc. Indian court
provides remedies in cases of assault and battery which are damages,
restitution and injunctions etc. With passing time we expect the tort
law to develop more, as people In India are becoming more aware
about their personal rights.
Q. 23. What do you understand by the expression ‘Nuisance’? What are
kinds of nuisance? Distinguish between Public and Private Nuisance.
Or
Explain the Concept of Public Nuisance and Private Nuisance. What
are the defence available for tort of nuisance?
Ans. The word Nuisance is derived from the French word ‘Nuire’ which
means to annoy or hurt. It is an unlawful interference with a person’s
use or enjoyment of land. Under normal circumstance, a person is
entitled to the full and reasonable enjoyment and use of this property
tangible, intangible, movable or immovable, whatsoever. This being
his legal right cannot be taken away without lawful justification.
Contrary to the provided protection if someone unlawfully interferes
with this entitlement of a person he/she commits a tort of Nuisance.
As per the most accepted definition of Nuisance which is the one
given by Bermingham, Nuisance is an unlawful interference with a
person’s use and enjoyment of land, or of some right over, or in
connection with it. Hence it is an injury or inconvenience faced by a
person in the use of his property because of another person who
unreasonably uses his own property in a way which negatively affects
the former.
In Durga Prasad v. State (AIR 1962 Raj 92), it was observed that
‘nuisance’ ordinarily means anything which annoys hurts or that which
is offensive.
According to Prof. Winfield - nuisance is incapable of exact definition
but for the purposes of the law of tort, it may be described as “unlawful
interference with a person’s use or enjoyment of land or of some right
over, or in connection with it.”
Acts interfering with the comfort, health or safety are the examples of
it.
Pollock: “Nuisance is the wrong done to do a man by unlawfully
disturbing him in the enjoyment of his property, or, in some cases, in
the exercise of a common right.”
Salmond - “the wrong of nuisance consists in causing or allowing
without lawful justification (but so as to common to trespass) the
escape of any deterious thing from his land or from his land or from
elsewhere into land in possession of the plaintiff e.g., water, smoke,
smell, fumes, gas, noise, heat, vibration electricity, disease, germs,
animals, negligence.”
According to Clarke and Lindsell - “Nuisance is an act or omission
which is an interference with, disturbance of or annoyance to a person
in the exercise or enjoyment of -
(a) right belonging to him as a member of public when it is a public nuisance,
or
(b) his ownership or occupation of land, or some easement, quasi-
easement, or other right used or enjoyed in connection with land,
when it is private nuisance.”
According to Stephens,”Nuisance is anything done to the hurt or
annoyance of the lands, tenements of another, and not amounting to
trespass.”
Nuisance in Legal Terms
In law, nuisance has a more restrictive meaning than it has in an ordinary
parlance. It is not all inconveniences that will succeed in an action for
nuisance. Minor inconveniences which are usually as a result of normal
human interaction in the society are not actionable in law. The law
always tries to strike a balance between the conflicting interest of the
plaintiff and the defendant in the society. So we can define the tort of
nuisance as an act which gives rise to unlawful, unwarranted or
unseasonable annoyance or discomfort to the plaintiff and which
results in damage to the property of the plaintiff or interfere with his
use and enjoyment of his land.
Essential Elements of Nuisance
For making an act of Nuisance actionable under the law of torts the
following essentials must be satisfied-
1. Wrongful Act by the Defendant:
For the Action against Nuisance to arise the first essentiality is the
conduct of a wrongful act by the Defendant. This may include any
action which is prima facie not legal and unreasonable in the eyes of a
prudent man. Caveat – If the Plaintiff is extra sensitive and finds the
action of the Defendant to be unreasonable due to his sensitivity,
which otherwise is reasonable as per a prudent man, the action for
Nuisance cannot arise.
2. Damage/Loss/Inconvenience caused to the Plaintiff:
The next essentiality requires a substantive damage or inconvenience
to be caused to the Plaintiff. The maxim “De minimis non curatlex”
comes into play and provides that law shall not consider trifles or
minimal damage claimed by the plaintiff due to his own sensitivity.
Nevertheless, if the act of the Defendant involves the hampering of a
Legal Rights of the plaintiff, nuisance comes into play.
Case Law: In Ushaben V. BhagyalaxmiChitraMandir, where the Plaintiff sued
the Defendant against the screening of the movie “Jai SantoshiMaa”
claiming that it hurts the Religious sentiments of a particular Hindu
community, the court dismissed the Plea stating that hurt to religious
feeling was not an actionable wrong and the Plaintiff is free to not
watch the Movie again.
Hence it was held that in order to claim damages for Nuisance, the
interference shall be in a state of continuing wrong.
In Halsey V. Esso Petroleum Co. Ltd, where the defendant’s factory
emitted smokes, oil, fumes and smell and polluted the environment
along with harming the plaintiff’s health because of his own sensitive
health issue, the former were held liable to the latter only for the emission
of smoke, oil and fume and not for health hazard.
Kinds of Nuisance
Nuisance as a tort is further categorized into two types-
1. Private Nuisance and
2. Public Nuisance,
both having their own areas of actions and types of damages.
Private Nuisance
Private Nuisance may be defined as unlawful interference with a
person’s use or enjoyment of land or of some right over or in connection
with it.
‘Underhill’ has defined ‘Private Nuisance’ as - ‘A private nuisance is
some unauthorised user of man’s own property cause damage to the
property of another or some unauthorised interference with the property
or proprietary right of another causing damage, but not amounting to
trespass.”
In an action for private nuisance, the court considers the following:
(i) Whether the injury complained of is sensible in the case of material
damage to property and in the case of interference with enjoyment of
land, whether the injury is substantial.
(ii) Whether the conduct of the defendant is unlawful, unwarranted or
unreasonable.
Elements of Private Nuisance
Following are the essentials of private nuisance:
(1) Unlawful interference. - The kind of interference or annoyance is
limitless. Where in hammering the metal sheets for rendering them
thinner, huge noise was created which was evident from the facts on
record, it was held by the court that a case of private nuisance is
established, there is no necessity of taking an expert opinion in such
cases. Such interference should be unreasonable or unlawful for
amounting to nuisance.
(2) Such interference has to be with the use or enjoyment of land, or of
some rights over the property, or it should be in connection with the
property or physical discomfort.
(3) Damage. - Specific damage must be shown. But in cases where the
nuisance concerns something other than physical damage to property,
damage will sometime be presumed.
Rose v. Miles (1815) 4M & S.101
The defendant had wrongfully obstructed a public navigable creek
which obstructed the defendant from transporting his goods through
the creek due to which he had to transport his good through land
because of which he suffered extra cost in the transportation. It was
held that the act of the defendant had caused a public nuisance as the
plaintiff successfully proved that he had incurred loss over other
members of the society and this he had a right of action against the
defendant.
Kinds of Private Nuisance:
Private nuisance is of two types:-
(A) Those causing damage to property.
(B) Those causing personal discomfort.
(A) Damage To Property - In case of damage to property, any sensible
injury will be sufficient to support an action, Nuisances of such kind
arise by manufacturing works, drains etc. In Goldman v. Hargrave
(1967) 1 A.C. 654, the appellant owned and occupied land adjacent to
that of the respondent. A redgum tree was struck with lightening and
caught fire. Appellant called a tree feller, who cut the tree but no steps
were taken to extinguish the fire, in the meantime, because of wind, fire
spread to respondent’s property because of fire in the tree which caused
great damage. It was held that appellant’s action involved foreseeable
risk of revival and spread of fire, accordingly, Appellant was held liable
for the nuisance of causing damage to property of respondent because
of failure to take effective steps to prevent spread of fire from tree.
Putting an embankment across a natural flow of water channel is treated
to be a nuisance as it resulted in diversion of water flow, which ultimately
resulted into damage to the plaintiff’s property.(GuhirmanGope v.
UdayChand, AIR 1963 Pat 455).
(B) Physical Discomfort. - In the case of physical discomfort, the act
complained of must be:
A. In excess of the natural and ordinary course of enjoyment of the
property, that is to say, the inference must be with the enjoyment of
use of land.
B. Materially interfering with the ordinary comfort of human existence.
In excess of the natural and ordinary course of enjoyment of the property:
The interference must be with the enjoyment or use of land. In order to
be able to bring an action for nuisance to property the person injured
must have either a proprietary or possessory interest in the premises
affected by the nuisance. A person who has the mereuse of the premises
although he has suffered direct personal and pecuniary damage from
the nuisance, cannot being an action for the wrong. The plaintiff must
prove injury to his proprietary or possessory right.
Materially interfering with the ordinary comfort of human existence:
The following factors are material in deciding whether the discomfort
is substantial:
i. Its degree or intensity;
ii. Its duration;
iii. Its locality
iv. The mode of user of the property.
In Kuldip Singh v. SubhashChander Jain, AIR 2000 SC 1410 - Plaintiff
and defendant were neighbours. Defendant constructed a bhatti
(Baking oven) in his premises. He also applied to Municipal Corp.
seeking grant of licence to run the bakery. Plaintiff raised protest and
filled suit seeking an injunction restraining defendant from operating
the “Bhatti” and also against Municipal Corp. restraining it to from
issuing licence to defendant, on ground of private nuisance by personal
discomfort. It was observed -
“A nuisance actually in existence stands on a different footing than a
possibility of nuisance or a future nuisance. An actually existing
nuisance is capable of being assessed in terms of its quantum and the
relief which will protect or compensate the plaintiff consistently with
the injury caused to his rights is also capable of being formulated. In
case of a future nuisance, a mere possibility of injury will not provide
the plaintiff with a cause of action unless the threat be so certain or
imminent that an injury actionable in law will arise unless prevented by
an injunction. The Court may not require proof of absolute certainty or
a proof beyond reasonable doubt before it may interfere; but a strong
case of probability that the apprehended mischief will in fact arise
must be shown by the plaintiff. In other words a future nuisance to be
actionable must be either imminent or likely to cause such damage as
would be irreparable once it is allowed to occur. There may be yet
another category of actionable future nuisance when the likely act of
the defendant is inherently dangerous or injurious such as digging a
ditch across a highway or in the vicinity of a children’s school or
opening a shop dealing with highly inflammable products in the midst
of a residential locality.”
Public Nuisance
Public nuisance refers to that which affects the general public or a
section of the public. It is that which affects the public segment or
class of the public by reason that it is indiscriminate in its effect or
widespread. A nuisance may become public nuisance either from its
source or its final effect or destination. Again, a nuisance that affects
a class or a segment of a society is public nuisance and whether the
number of persons affected is sufficient to merit public nuisance is a
question of facts depending on the facts and circumstances of each
case. Everything is to be looked at from a reasonable point of view.
Instances, of public nuisance include obstruction of highway or public
roads, public waterways, noises pollution, oil spillage from the activities
of multi-national oil companies and carrying on obnoxious business
like operating a brothel in a GRA.
A public nuisance is usually a crime (section 234 of the Criminal Code
and sections 192 & 194 of the Penal Code) which can only be
prosecuted by the Attorney General in his capacity as the custodian of
public right. In other words, a private person has no right to prosecute
the crime of public nuisance; the Attorney-General prosecutes.
A public nuisance can be defined as an unreasonable interference with
a right common to general public. Obstructing a public way by digging
a trench, carrying on trades which cause offensive smells or intolerable
noises, etc. are examples of public nuisance. Thus, the acts constituting
public nuisance are all of them unlawful acts; those which constitute
private nuisance are not necessarily or usually unlawful. Public
nuisance does not create a civil cause of action for any person.
In order that an individual may have a private right of action in respect of a
public nuisance -
(i) He must show a particular injury to himself beyond that which is
suffered by the rest of public. He must show that he has suffered some
damage more than what the general body of the public had to suffer.
(ii) Such injury must be direct, and not a mere consequential injury; as,
where one way is obstructed, but another is left open.
(iii) The injury must be shown to be of a substantial character.
Thus, in order to sustain a civil action in respect of a public nuisance,
proof of special and particular damage is essential.
In the case of Daodu v. NNPC, the Supreme Court, stated the position
of the law thus, “an obstruction of public highway or hindering the
free passage of the public along the highway is a public nuisance and
a private individual has a right of action if he can prove that has
sustained particular damage other than and beyond the general
inconvenience and injury suffered by the public and that the particular
damage which he sustained was direct and substantial.” The
requirement of proving particular damage will be satisfied if the plaintiff
can show that he has suffered damage which is appreciable greater in
degree than any suffered by the general public.
In Campbell v. Paddington Corpn. (1911) 1 K.B. 869, an uninterrupted
view of the funeral procession of king Edward VIII could he had from
the window of the plaintiff’s building. The plaintiff accepted certain
payments from certain persons and permitted them to occupy seats in
her building. Before the date of the said procession the defendant
corporation constructed a stand on the highway in front of the
plaintiff’s building which obstructed the view from the plaintiff’s
building. The plaintiff thus deprived of the profitable contract of letting
seats in her building. She filed a suit against the Corporation contending
that the stand was a public nuisance and had caused special loss to
her. It was held that she was entitled to claim compensation.
Defences to nuisance:
There are two valid defences for nuisance which are as follows,
Prescription:
Prescription is a title acquired by use and time, and allowed by law as
and when a man claims anything as he, his ancestors or they whose
estate he have had possession for the prescribed period. The essence
of prescription can be found in Section 26 of the Limitation Act and
Section 15 of the Easements Act. Also prescription is something of a
kind of a special defence because if a nuisance has been openly and
peacefully carried out without any interruption, in that the case the
defence of prescription can be used.
The nuisance is considered to be legal as if it had been authorized in
its commencement by a grant from the owner of the land when the
period of twenty years has been expired.
Statutory authority:
When a statute has authorised doing of a particular act or the use of
land in a particular way that all the remedies whether by indictment or
action or charge, are taken away provided that necessary reasonable
precaution has been taken. The statutory authority may be absolute or
conditional.
When the statutory authority is absolute, the statute allows the act
and it is unnecessary that the act must lead to nuisance or any other
injury. When the statutory authority is conditional, the state allows
the act to be done only if it can be done without any causation of
nuisance or any form of injury.
In this case, there is a need for the exercise of due care and caution and
due regard for private rights. Where undertakers act under a mandatory
obligation (e.g. statutory obligation) whether or not there is a saving
clause not exempting them from liability in nuisance, there is no liability
in nuisance if what has been done is that which was expressly required
to be done, or was reasonably incidental thereto.
There is a distinction in this context between statutory obligation or
duty and statutory power which is permissive in nature. In case of the
former, there is immunity from an action based on nuisance but in case
of the latter, there is no immunity and power must be exercised in strict
conformity with private rights; but even in the former case there will be
no immunity in either of the cases when the action is taken is ultra
vires to the statute.
In Vaughan v. Taff Vale Rly, the defendants who had authority by
statute to locomotive engines on their railway, were held not liable for
a fire caused by the escape of sparks.
In the case of a nuisance, it is no defence,
1. That the plaintiff himself came to the nuisance;
In Village of Wilsonville v. SCA Services, the plaintiffs, a village and
other governmental bodies, alleged that the defendant’s hazardous
chemical landfill was a public nuisance. The plaintiffs sought to enjoin
the operations of the landfill and require removal of toxic waste and
contaminated soil. The court found that there was a substantial danger
of groundwater contamination and explosions from chemical reactions.
Although the damages were prospective, the nuisance already was
present. Therefore, the court granted an injunction and ordered a site
clean-up.
“Coming to a nuisance” is the phrase used to describe a defence that
the complainant or plaintiff affected by the nuisance moved into the
area where he complained about activity” had already been in existence.
An example of “coming to a nuisance” occurs when someone moves
onto the property near an airport or industrial complex and then
complains of the nuisance that existed prior to his moving there.
Generally, the fact that an individual purchases property with the
knowledge of the existence of a nuisance or that he came to the
nuisance will not defeat his right to the abatement of the nuisance or
recovery of damages. This cannot be taken as a defence.
2. That the act causing nuisance is beneficial to the public[Shelfer v.
City of London Electric Lighting Co., (1895)]
3. The place where the nuisance is created is the only place suitable for
the purpose or
4. That the defendant is merely making reasonable use of his property.
5. It is no defence that the defendant’s operations would not alone amount
to a nuisance. E.g. the other factories contribute to the smoke
complained of.
Basis of comparison PUBLIC NUISANCE TORT PRIVATE NUISANCE TORT

As to nature of the right A public or common nuisance A private nuisance affects only
vio lated. affects the public at large or one p erson or a determinate
some considerable portion body of persons.It is an
thereof. It is an infringement infringement of the right of a
of a public right. It is an private person. It is a violation
offence against public rights, of a private right of a person to
safety or convenience. the comfortable occupation of
property.
As to who can sue. Public nuisance does not Private nuisance, is actionable at
create a civil cause of action the suit of any person in
for any person. An action possession of land who is
canno t be maintained by a injured by reason thereof. In
private individual in his own simple words, the injured person
name in respect of a public may bring an action.
nuisance except a person
sustains a special injury.
As to acquisition of right No length of time can legalize A right to create or continue
of nuisance. a public nuisance. private nuisance may be
acq uired by prescription.
Abatement. A public nuisance cannot be While a private nuisance may
so abated by him. be abated by the person
injuriously affected thereby.
Remedies available. In case o f a public nuisance, An action for damages lies in
the action generally is for respect of a private nuisance but
declaration and injunction. not in respect of public
In Kuldeep Singh v. nuisance, unless the plaintiff has
SubhashChander Jain, AIR sustained a special damage.
2000 SC 1410 - It was
observed that remedies for
private nuisance are (1)
Abatement (2 ) Damages and
(3) Injunction. In order to
obtain an injunction it must be
shown that the injury
complained of as present or
impending is such as by
reason of its gravity or its
permanent character or both,
canno t be adequately
compensated in damages. If
the injury is continuous the
court will not refuse an
injunction because the actual
damage arising from it is
slight.
Actionable Public nuisance is actionable Private nuisance is only

as well as indictable. actionable.
Conclusion
The concept of nuisance relates to the day to day activities of an
individual. The laws made against Nuisance are almost uncodifed save
the criminal aspect of Public Nuisance. Nuisance as a tort got
comprehensiveness through a plethora of judgments along with the
works of many eminent jurists. India was once a British colony has
relied heavily on the English judgments to understand and develop
the concept of this tort. However, it has also amended and modified
various aspects of interpretation, depending upon its own geographical,
cultural, and economic diversity in order to strive for providing justice
to almost each of its people and maintain the reign of Rule of Law
along with Justice Equity and good conscience.
Q. 24. Define Defamation and what are its kinds? Discuss defenses available
against defamation in law of torts.
Or
What are the various kinds of defamation? What defenses are available
in a suit of defamation?
Or
Distinguish between libel and slander and discuss the defenses
available in an action of defamation?
Or
Briefly explain-
a. Libel
b. Slander
c. Innuendo
d. Defense available in suit of defamation
Ans. Theword defamation is driven from Latin word ‘Diffamare.’ Semantics
or Etymology of the Latin word ‘Diffamare’ provides that it means
‘Spreading evil report about someone’. Thus, defamation is causing
damage to reputation of another.
Blackburn and George defined defamation as, “the tort of publishing
a statement which tends to bring a person into hatred, contempt or
ridicule or to lower his reputation in the eyes of right-thinking members
of society generally.”
Winfield defines the concept as “defamation is the publication of
statement which tends to lower a person in the estimation of right-
thinking members of society, generally, or which tends to make them
shun and avoid that person.”
Scrutton LJ defined a defamatory statement as “a false statement
about a man to his discredit”
Defamation may be committed in two ways viz.,
(i) Speech, or
(ii) Writing and its equivalent modes.
The English common law describes the former as ‘SLANDER’ and the
latter as ‘LIBEL.’ The former is a spoken defamation while the latter a
written defamation which may assume various forms, like physical
symbols, statues, effigies, picture, caricature, wax model, etc.
Libel
The libelous statement must be in a printed form, e.g. writing, printing,
pictures, cartoons, statue, waxwork effigy etc.
Lopes J., in Monson V. Tussauds points out that libel need not always
be in writing. It may be conveyed in some other permanent form as a
statue, a caricature, and an effigy, chalk mark on a wall, sign, or pictures.
In the same case, the defendants, who kept a wax works exhibition, had
exhibited a wax model of the plaintiff with a gun, in a room adjoining
the ‘Chamber of Horrors’ (a room in the basement, in which the wax
models of notorious criminals were kept). The plaintiff has been tried
for murder in Scotland and released on a verdict of ‘Not proven’ and a
representation of the scene of the alleged murder was displayed in the
chamber of horrors. The Court of Appeal held that the exhibition was
libel.
Essential Ingredients of Libel
Following are the essential ingredients of libel -
(a) The statement must be false. It is important to point out that falsity of
the statement is presumed in favour of plaintiff and onus lies on
defendant to prove that it is true.
(b) It must be in permanent and visible form e.g. writing, printing, picture
effigy or statute. In a cinema film not only the photographic part is
considered to be libel but also the speech with synchronises with it is
also a libel.
(c) It must be defamatory.
(d) It must be referred to Plaintiff.
(e) It must be published.
Slander
Slander is a false and defamatory statement by spoken words or
gestures tending to injure the reputation of another. Apart from
differences in form, the libel differs from slander in its procedure, remedy,
and seriousness. In common law, a libel is a criminal offence as well as
a civil wrong. But slander is a civil wrong only; though the words may
happen to come within the criminal law as being blasphemous,
seditious, or obscene or as being a solicitation to commit a crime or
being a contempt of court. Under Indian Penal Code both libel and
slander are criminal offences.
Essential Ingredients of Slander
The following are the essential ingredients of slander:
(a) The matter complained of must be defamatory, that is, the matter
complained of must have lowered the plaintiff in the estimation of
others or has caused him to be shunned by the society.
In Churchill v. Ainsworth, it was held defamatory; to call a journalist a
paid back paid to write biased articles.
In Angle v. H.H. Bushal and Co. Ltd., it was held defamatory of a
businessman to say that he is not conversant with normal business
ethics.
(b) It must be false and must not be privileged or in the nature of fair and
bona fide comment.
(c) It must refer to the plaintiff.
(d) It must be published.
(e) It must be published by the defendant.
(f) It must have caused special damages to the plaintiff in the four well-
known exceptional cases.
Innduno
Where the statement does not refer to plaintiff directly, the doctrine of
innuendo may come into force. Sometimes the statement may prima
facie be innocent but because of some latent or secondary meaning it
may be considered to be defamatory. When the natural and ordinary
meaning is not defamatory but the plaintiff wants to bring an action for
defamation he must prove the latent or secondary meaning i.e.
innuendo, which makes the statement defamatory.
So by ‘Innuendo’ is meant the explanatory statement that though the
words were not libellous in their ordinary meaning they had in fact, a
libellous meaning in the circumstances of the case.
Rule of Innuendo
The law of pleadings require that when a statement is prima facie
innocent but the plaintiff alleges a defamatory significance to it he
must, in his pleadings set forth the circumstances which make it
defamatory. In other words, he must prove an ‘innuendo’. So the rule
is that whenever the words are not defamatory in their ordinary sense
the plaintiff alleges in his statement of claim an ‘innuendo’ and must
prove the facts necessary in satisfying the jury that the meaning alleged
in an innuendo was the meaning of the words.
In Capital and Counties Bank v. Henty and Sons (1882) 7 A.C. 741,
there was a dispute between Henty and Sons and one of the branch
managers of the plaintiff Bank. The defendants who used to receive
cheques drawn on various branches of the Bank sent a circular to large
number of their customers stating that they would not receive payment
in cheques drawn on any of the branches of the plaintiff Bank. The
Bank sued Henty and Sons for libel alleging that the circular implied an
insolvency of the Bank. It was held, that the words of the circular
taken in their natural sense did not convey the supposed imputation
and the reasonable people would not understand it in the sense of the
innuendo suggested. There was, therefore no libel.
One of the best known cases on the application of the rule of innuendo
was Tolly v. Fry and Sons Ltd., (1931) A.C. 333. The plaintiff, a famous
amateur golfer, was caricatured by the defendants, without his
knowledge or consent, in an advertisement of their chocolate which
depicted him with a packet of it protruding from his pocket. A caddy
was represented with him, who also had a packet of chocolate the
excellence of which he likened, in some doggerel verse, to the excellence
of the plaintiff’s drive. The plaintiff alleged in his innuendo that the
defendants thereby meant that the plaintiff had agreed to let his portrait
be exhibited for advertisement, that he had done this for gain, and that
he had thus prostituted his reputation as an amateur golfer. The House
of Lords held that the caricature as explained by the evidence, was
capable of being thus construed, for golfers that any amateur golfer
who assented to such advertisement might be called upon to resign
his membership of any reputable club, and it also appeared from
correspondence between the defendants and their advertising agents
that they were quite aware of the possible effect of the advertisement
on the plaintiff amateur status.
The line between the true and the false innuendo may sometimes be
difficult to draw, for it may depend upon the obscurity of the words
themselves. In such a case the better practice is to plead the natural
and ordinary meaning and the innuendo as alternative.
Cassidy v. Daily Mirror, (1929) K.B. 331. - The defendant published
a photograph of M.C. and a Miss X with the statement “Mr. M.C. the
race horse owner and Miss X, whose engagement has been
announced.” It was held that the publication was capable of conveying
a meaning defamatory of the plaintiff, meaning thereby that she was
not lawful of M.C. and was living with him in immoral cohabitation.
The innuendo was considered right and damages were awarded.
Thus, innuendo means the words which are not defamatory in their
ordinary sense, but may nevertheless convey a defamatory meaning
owing to the circumstances. Mere interpretation of statement is not
sufficient to allege an Innuendo. But it must be supported by extrinsic
facts or matters.
Indian law on Libel and Slander
Unlike English law, Indian law does not make any distinction between
libel and slander and both are treated as criminal offenses under section
499 IPC. In the case of HirabaiJehangir v. Dinshawdulji the Bombay
and Madras high court both held that no distinction needs to be made
between treating libel and slander as criminal offenses.
Defenses available in suit of Defamation
Once the publication of defamatory material is proved; plaintiff must
be deemed to have established his case unless the defendant pleads
any defense open to him. Following are the defenses available in an
action of civil liability in the case of defamation.
1. Defense of justification of truth: The truth of a defamatory words is
pleaded with a complete defense in Civil proceedings and for that
reason even though the words were published spite to be and
maliciously. A publication based on verifiable facts can extinguish
liability for defamation. It negatives the charge of malice and it shows
that plaintiff is not entitled to recover damages too.
2. Defense of fair comment: A fair and bona fide comment on a matter of
public interest is not libel. The defendant can avail this defense when
he has merely made a fair comment in a matter of public interest. This
defense is based on public policy which gives every person the right
to comment and criticize without any malicious intention the work or
activities of public offices, actors, authors, and athletes as well as
those whose career is based on public attention. Any fair and honest
opinion on a matter of public interest is also protected even though it
is not true.
3. Defense of absolute privilege: ‘Privilege’ means a person stands in
such relations to the fact of the case that he is justified in saying or
writing what would be slander or libel by anyone else. Absolute
privilege exempts defamatory statements made:
(a) during judicial proceedings,
(b) by government officials,
(c) by legislators during debates in the parliament,
(d) during political speeches in the parliamentary proceedings and,
(e) communication between spouses.
4. Consent: Where the defendant has communicated or published certain
material with the consent of plaintiff or plaintiff himself has invited the
defendant to repeat the defamatory words, the defendant can plead
this defense of consent. If a person telephones a newspaper with false
information about himself, he would not be able to sue in defamation
when the newspaper publishes it.
5. Statement of Opinion: If the statement made is an opinion and not a
statement of fact, then it cannot be defamatory. For example, if a person
says that he finds an actor ugly, the statement is just an opinion.
However, if he says that the actor is a drug addict or has had multiple
affairs, then it will be a defamatory statement. If this statement results
into the actor losing work or his job and the statement made are false,
then there will be a case for defamation.
Defences under Criminal Law (INDIAN PENAL CODE)
Truth is the absolute defense to defamation. If the statement made is
truthful in nature, it does not constitute defamation. The burden is on
the defendant to prove the authenticity of the statement made.
According to the Exception 1 given under Section 499, “It is not
defamation to impute anything which is true concerning any person if
it is for the public good that the imputation should be made or
published.”
If a statement is made in the interest of public good, it is not defamatory
in nature. The defendant has to prove that the statement was made
keeping public interest in mind. The secondexception to Section 499
deals with the fair criticism of public servants. The statement should
be made in good faith and should criticize “the conduct of a public
servant in the discharge of his public functions, or respecting his
character, so far as his character appears in that conduct, and no further.”
The thirdexception deals with a fair comment on the conduct of “any
person touching any public question.”
The fourthexception deals with publication of reports on proceedings
of Court of Justice. Such publication of reports would not be defamation
if they are substantially true in nature.
According to the fifthexception, “it is not defamation to express in
good faith any opinion whatever respecting the merits of any case,
civil or criminal, which has been decided by a Court of Justice.”
The sixthexception deals with literary criticism while the seventh
deals with censure passed in good faith by a person having lawful
authority over another.
The eightexception deals with a complaint to the authority. According
to the eighth exception, “it is not defamation to prefer in good faith an
accusation against any person to any of those who have lawful
authority over that person with respect to the subject-matter of
accusation.”
According to the ninth exception, imputation made in “good faith by a
person for the protection of his or other’ interests” is not considered
defamation.
The tenth exception deals with cautionary statements made in good
faith. If the statement made is “intended for good of person to whom
conveyed or for the public good,” it is not defamation.
The right to freedom of speech and expression under Article 19(1) is
not absolute. It is subject to reasonable restrictions under Article
19(2) of the Constitution. One of the reasonable restrictions under
Article 19(2) is defamation.
The constitutionality of Section 499 and 500 was challenged for being
an unreasonable restriction on the freedom of speech and expression
in the case of Subramanian Swamy v. Union of India. The Apex Court
upheld the validity of the law of defamation and decided it was not an
excessive restriction. Additionally, it was also decided that the
language used in Section 499 was not vague or ambiguous.
Umesh Kumar v. State of Andhra Pradesh, personal rights of a human
being include the right of reputation. The right to reputation is also a
“necessary element” of Article 21 of the Constitution of India.
S. No. Libel Slander

1. Libel is defamation in some Slander defamation in transient form
permanent form e.g., a written or e.g., spoken words or gestures.
printed form
2. At Common Law, a libel is a At Co mmon Law, a slander is a Civil
Criminal offence as well as Civil Wrong only.
wrong. Under Indian Law both libel
and slander are criminal offences
3. A libel is by itself an infringement At Common Law, a slander is
of a right and no actual damage actionable only when special damage
need to be proved to sustain an can be proved to have been its natural
action in the Court of Law. consequences or when in conveys
certain imputation.
4. A libel conduces to a breach of A slander does not conduce to a breach
peace. of peace. However, Indian legal system
does not recognize this distinction.
5. Libel sho ws a greater deliberation Slander may be uttering or words in the
and raises a suggestion of malice heat of moments and under a sudden
provocation.
6. The actual publisher of libel may be In every case of publication o f slander,
an innocent person and therefore the publisher acts consciously and
not liable. voluntarily, and must necessarily
guilty.
7. Libel is action per se. (by itself) Slander is not actionable per se I.e.,
special damages must be proved .
Conclusion
The defamation law serves the purpose of protecting people from
having their reputation injured resulting from false statements made
against them. However, it is still in accordance with the right to freedom
of speech and expression, as people can make true statements and
give their opinions. This area of law seeks to protect a person’s
reputation from being hurt by preventing unfair speech. The apex
court has stated in various cases that the ambit of freedom of speech
and expression is “sacrosanct” but is not “absolute.” It also said that
the right to life under Article 21 includes the right to reputation of a
person and it cannot be violated at the cost of the freedom of speech
of another.
Q. 25. Define “Negligence” and discuss its essential elements.
Or
Explain the “Negligence” and doctrine of “Res ipsaloquitur.” Discuss
the defence available in suit for negligence.
Ans. The word ‘negligence’ denotes mere carelessness. In legal sense it
signifies failure to exercise standard of care which the doer as a
reasonable man should have exercised in the circumstances. In general,
there is a legal duty to take care when it was reasonably foreseeable
that failure to do so was likely to cause injury. Negligence is a mode in
which many kinds of harms may be caused by not taking such adequate
precautions.
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 Blyth v. Birmingham Water Works Co., (1856); Alderson, B.
defined negligence as, “Negligence was defined as the omission to do
something which a reasonable man would do or doing something which
a prudent or reasonable man would not do.”
In Lochgelly Iron & Coal Co. v. Mc Mullan, 1934; Lord Wright said,
“negligence means more than headless or careless conduct, whether
in commission or omission; it properly connotes the complex concept
of duty, breach and damage thereby suffered by the person to whom
the duty owed.”
Essentials of negligence:
In an action for negligence, the plaintiff has to prove the following
essentials:
1. Duty to take care: One of the essential conditions of liability for
negligence is that the defendant owed a legal duty towards the plaintiff.It
means that every person owes a duty of care, to another person while
performing an act. Although this duty exists in all acts, but in negligence,
the duty is legal in nature and cannot be illegal or unlawful and also
cannot be of moral, ethical, or religious nature.
The following case laws will throw some light upon this essential
element.
In Grantv. Australian Knitting Mills Ltd. (1935),the plaintiff purchased
two sets of woollen underwear from a retailer and contacted a skin
disease by wearing underwear. The woollen underwear contained an
excess of sulphates which the manufacturers negligently failed to
remove while washing them. The manufacturers were held liable as
they failed to perform their duty to take care.
In Bolton V. Stone, D, a person who was on the roadside, was injured
by a cricket-ball hit by the player from the field which was about 100
yards away from the road. There were one or two such rare occasions
in the past. The court held that the defendants (the members of the
club) were not liable. The hit was so exceptional that no prudent man
would have foreseen. Further, it was too remote and no reasonable
man would have anticipated.
In the case of Stansbele v.Troman (1948), A decorator was engaged to
carry out decorations in a house. Soon after, the decorator left the
house without locking the doors or informing anyone. During his
absence, a thief entered the house and stole some property the value
of which the owner of the house claimed from the decorator. It was
held that the decorator was liable as he was negligent in leaving the
house open and failed his duty of care.
2. The Duty must be towards the plaintiff:
A duty arises when the law recognizes a relationship between the
defendant and the plaintiff and requires the defendant to act in a certain
manner toward the plaintiff. It is not sufficient that the defendant owed
a duty of care towards the plaintiff but it must also be established
which is usually determined by the judge.
In the case ofBourhill v. Young (1943)the plaintiff who was a fishwife
got down from a tram car and while she was being helped in putting her
basket on her back, a motor-cyclist after passing the tram collided with
a motor car at a distance of 15 yards which was on the other side of the
tram. The motorcyclist died instantly and the plaintiff could not witness
the accident or the dead body since the tram was standing between
her and the place where the accident occurred. She had only heard the
sound of the collision and once the body had been removed from the
place of accident, she visited the place and saw some blood which was
left on the road. As a reaction to this incident, she suffered a nervous
shock and gave birth to a still-born child of 8 months because of which
she sued the representatives of the deceased motorcyclist. It was held
that the deceased had no duty of care towards the litigant and therefore
she could not claim any damages from the deceased’s representatives.
The case ofDonoghuev. Stevenson (1932)has evolved the principle
that we each have a duty of care to our neighbor or someone we could
reasonably expect to be affected by our acts or omissions. It was held
that, despite no contract existed between the manufacturer and the
person suffering the damage an action for negligence could succeed
since the plaintiff was successful in her claim that hat she was entitled
to a duty of care even though the defective good i.e a bottle of ginger
beer with a snail in it was bought, not by herself, but by her friend.
3. Breach of duty to take care: Yet another essential condition for the
liability in negligence is that the plaintiff must prove that the defendant
committed a breach of duty to take care or he failed to perform that
duty. It is not enough for a plaintiff to prove that the defendant owed
him a duty of care but he must also establish that the defendant breached
his duty to the plaintiff. A defendant breaches such a duty by failing to
exercise reasonable care in fulfilling the duty. In other words, the breach
of a duty of care means that the person who has an existing duty of
care should act wisely and not omit or commit any act which he has to
do or not do as said in the case of Blyth v. Birmingham Waterworks
Co, (1856). In simple terms, it means non-observance of a standard of
care.
In the case of Ramesh Kumar Nayakvs Union of India (1994), The

post authorities failed tomaintain the compound wall of a post office in
good condition on the collapse of which the defendant sustained
injuries. It was held that postal authorities were liable since that had a
duty to maintain the post office premises and due to their breach of
duty to do so, the collapse occurred. Hence they were liable to pay
compensation.
In MunicipalCorporation of Delhi v. Subhagwanti, AIR 1966 SC 1750;
a clock-tower in the heart of the ChandniChowk, Delhi collapsed
causing the death of a number of persons. The structure was 80 years
old whereas its normal life was 40-45 years. The Municipal Corporation
of Delhi having the control of the structure failed to take care and was
therefore, liable.
In MunicipalCorporation of Delhi v. Sushila Devi, AIR 1999 SC 1929;
a person passing by the road died because of fall of branch of a tree
standing on the road, on his head. The Municipal Corporation was
held liable.
4. Actual cause or cause in fact
In this scenario, the plaintiff who is suing the defendant for negligence
has the liability to prove is that the defendant’s violation of duty was
the actual cause of the damages incurred by him.
This is often called the “but-for” causation which means that, but for
the defendant’s actions, the plaintiff would not have incurred the
damages.
For example, when a bus strikes a car, the bus driver’s actions are the
actual cause of the accident.
5. Proximate cause
Proximate cause means “legal cause,” or the cause that the law
recognizes as the primary cause of the injury. It may not be the first
event that set in motion a sequence of events that led to an injury, and
it may not be the very last event before the injury occurs. Instead, it is
an action that produced foreseeable consequences without
intervention from anyone else. A defendant in a negligence case is
only responsible for those damages that the defendant could have
foreseen through his actions.
In the case of Palsgrafvs Long Island Railroad Co (1928), A man was
hurrying while trying to catch a train and was carrying a packed item
with him. The employees of the railway saw the man who was attempting
to board the train and thought that he was struggling to do so. An
employee on the rail car attempted to pull him inside the train while the
other employee who was on the platform attempted to push him to
board the train. Due to the actions of the employees, the man dropped
the package. Which had contained fireworks, and exploded when it hit
the rails. Due to the explosion, the scales fell from the opposite end of
the station and hit another passenger, Ms. Palsgraf, who then sued the
railway company. The court held that Ms. Palsgraf was not entitled to
damages because the relationship between the action of the employees
and the injuries caused to him were not direct enough. Any prudent
person who was in the position of the railway employee could not
have been expected to know that the package contained fireworks and
that attempting to assist the man the railcar would trigger the chain of
events which lead to Ms. Palsgraf’s injuries.
6. Consequentdamage or consequential harm to the plaintiff
The last essential requisite for the tort of negligence is that the damage
caused to the plaintiff was the result of the breach of the duty. Proving
that the defendant failed to exercise reasonable care is not enough. It
should also be proved that the failure of the defendant to exercise
reasonable care resulted in damages to the plaintiff to whom the
defendant owed a duty of care.
The harm may fall into the following classes:
(a) Bodily harm, i.e. harm to body;
(b) Harm to the reputation
(c) Harm to property, i.e. land and buildings and rights and interests
pertaining thereto, and his goods;
(d) Financial Loss
(e) Mental Harmor nervous shock.
When such damage is proved, the defendant is bound to compensate
the plaintiff for the damages occurred.
In the case of Joseph vs Dr. George Moonjely(1994) The Kerela high
court awarded damages amounting to Rs 1,60,000 against a surgeon
for performing an operation on a 24-year-old girl without following
proper medical procedures and not even administering local
anaesthesia.
In AchutraoHaribhauKhodwa v. State of Maharashtra (1996); a cotton
mop was left inside the body by the negligence of the doctor. The
doctor was held liable.
Res ipsaloquitur
Res ipsaloquitur is a Latin phrase that means “the thing speaks for
itself.”
It is considered to be a type of circumstantial evidence which permits
the court to determine that the negligence of the defendant led to an
unusual event that subsequently caused injury to the plaintiff.
Although generally the duty to prove that the defendant acted
negligently lies upon the plaintiff but through res ipsaloquitur, if the
plaintiff presents certain circumstantial facts, it becomes the burden of
the defendant to prove that he was not negligent.
This doctrine arose out of the case of Byrne vsBoadle (1863)
The plaintiff was walking by a warehouse on the road and suffered
injuries from a falling barrel of flour which rolled out of a window from
the second floor. At the trial, the plaintiff’s attorney argued that the
facts spoke for themselves and demonstrated the warehouse’s
negligence since no other explanation could account for the cause of
the plaintiff’s injuries.
Thus the following are the three essential requirements for the
application of this maxim-
(a) The thing causing the damage must be under the control of the
defendant or his servants
(b) The accident must be such as would not have happened in the ordinary
course of things without negligence.
(c) There must be no evidence of the actual cause of the accident.
Hambrook v. Stokes Bors. – Soon after parted with her children in a
narrow street, a lady saw a lorry violently running down the narrow
street. When told by some bystander that a child answering the
description of one of her children had been injured, she suffered a
nervous shock which resulted in her death. The defendant was held
liable.
Defences for negligence:
In an action for negligence following defences are available:-
1. Contributory negligence: It was the Common law rule that anyone
who by his own negligence contributed to the injury of which he
complains cannot maintain an action against another in respect of it.
Because he will be considered in law to be author of his wrong.
Contributory negligence means that when the immediate cause of the
damage is the negligence of the plaintiff himself, the plaintiff cannot
sue the defendant for damages and the defendant can use it as a
defense. This is because the plaintiff in such a case is considered to be
the author of his own wrong. It is based on the maxim volenti non fit
iniuria which states that if someone willingly places themselves in a
position which might result in harm, they are not entitled to claim for
damages caused by such harm.
The plaintiff is not entitled to recover from the defendant if it is proved
that-
1. The plaintiff by the exercise of ordinary care could have avoided the
consequence of the defendant’s negligence.
2. The defendant could not have avoided the consequence of the
plaintiff’s negligence by an exercise of ordinary care.
3. There has been as much want of reasonable care on the plaintiff’s part
as on the defendants part and the former cannot sue the latter for the
same.
The burden of proving contributory negligence rests on the defendant
in the first instance and in the absence of such evidence; the plaintiff
is not bound to prove its non-existence.
Butterfield v. Forrester, (1809); the defendant had put a pole across a
public thoroughfare in Durby, which he had no right to do. The plaintiff
was riding that way at 8’O clock in the evening in August, when dusk
was coming on, but the obstruction was still visible from a distance of
100 yards; he was riding violently, came against the pole and fell with
the horse. It was held that the plaintiff could not claim damages as he
was also negligent.
In the case of Shelton Vs L & W Railway (1946), while the plaintiff
was crossing a railway line, a servant of the railway company who
was in charge of crossing shouted a warning to him. Due to the
plaintiff being deaf, he was unable to hear the warning and was
consequently injured. The court held that this amounted to
contributory negligence by him.
2. Act of God or vis major: It is such a direct, violent, sudden, and
irresistible act of nature as could not, by any amount of human foresight
have been foreseen or if foreseen, could not by any amount of human
care and skill, have been resisted. Such as, storm, extraordinary fall of
rain, extraordinary high tide, earth quake etc.
In Nichols v. Marsland, (1875); the defendant had a series of artificial
lakes on his land in the construction or maintenance of which there
had been no negligence. Owing to an exceptional heavy rain, some of
the reservoirs burst and carried away four country bridges. It was held
that, the defendant was not liable as the water escaped by the act of
God.
If the cause of injury or death of a person is due to the happening of a
natural disaster, then the defendant will not be liable for the same
provided that he proves the same in the court of law. This particular
defence was talked in the case of Nichols v. Marsland (1876) in which
the defendant had a series of artificial lakes on his land. There had
been no negligence on the part of the defendant in the construction
and maintenance of the artificial lakes. Due to unpredictable heavy
rain, some of the reservoirs burst and swept away four country bridges.
It was held by the court that the defendant could not be said to be
liable since the water escaped by the act of God.
3. Inevitable accident: Inevitable accident also works as a defence of
negligence. An inevitable accident is that which could not possibly,
be prevented by the exercise of ordinary care, caution, and skill. it
means accident physically unavoidable.
In Brownv. Kendal, (1859); the plaintiff’s and defendant’s dogs were
fighting, while the defendant was trying to separate them, he
accidentally hit the plaintiff in his eye who was standing nearby. The
injury to the plaintiff was held to be result of inevitable accident and
the defendant was not liable.
In Holmes v. Mather, (1875); a pair of horses was being driven by the
groom of the defendant on a public highway. On account of barking of
a dog, the horses started running very fast. The groom made best
possible efforts to control them but failed. The horses knocked down
the plaintiff who was seriously injured, it was held to be an inevitable
accident and the defendant was not liable.
In Stanley v. Powell, (1891); the plaintiff and the defendant, who were
members of a shooting party, went for pheasant shooting. The
defendant fired at a pheasant, but the shot from his gun glanced off an
oak tree and injured the plaintiff. It was held that the accident was an
inevitable accident and the defendant was not liable.
Conclusion
Negligence as a tort has evolved from the English law and accepted by
the Indian law as a substantially important tort. Negligence is of two
types, civil and criminal and each has various repercussions. In order
to prove that an act was negligent, it is necessary to prove all the
essentials namely duty, breach of duty, damages, and actual and
proximate cause. An important maxim regarding negligence i.e Res
IpsaLoquitur is used by the courts when a negligent act cannot be
explained. Also, the defences in a suit for negligence can be used by
the defendant to defend himself from a suit issued by the plaintiff.
Q. 26. Describe the following maxims:
1. Ubi jus ibiremedium
2. Actiopersonalismoritur cum persona
3. Ex turpicausa non orituraction
4. Innuendo
5. Res ispaliquitor
Ans.
1. Ubi jus ibiremedium
The law of tort is said to be the development of the maxim Ubi jus
ibiremedium. The word ”jus” means legal authority to do something
or to demand something. The word ”remedium” means that the person
has the right of action in the court of law. The literal meaning of the
maxim is where there is a wrong there is a remedy.
The circuit court of appeals of the United States of America in the case
of Leo feist v. young observed that “it is an elementary maxim of the
equity of jurisprudence and there is no wrong without a remedy.”
This maxim also says that there is no remedy without any wrong and
the persons whose right is being violated has a right to stand before
the court of law. This principle also states that if the rights are available
to a person then it is required to be maintained by that person only and
remedy is available only when he is injured in the exercise of duty or
enjoyment of it; It is useless to imagine and think a right without a
remedy. It is necessary to keep in mind that both rights violated and
the remedy sought or to be obtained should be legal. There are many
moral and political wrong but are not actionable or it does not give
many sufficient reasons to take legal action as they are not recognized
by law. The maxim does not mean that there is a legal remedy for each
and every wrong committed.
For example, a contract which was required to be made on stamped
paper may be made orally; in such circumstances, irrecoverable harm
may be caused to other person and yet no legal remedy is available.
Thus, the maxim does not mean that there is a remedy for every possible
wrong. It is appropriately said by Justice Stephen that maxim would be
correctly stated if maxim were to be reversed to say that “where there
is no legal remedy, there is no legal wrong.
Where there is a right, there is a remedy
Law of equity highlights the facts that if there is a breach of right then
the right which is breached is incomplete without availability of proper
remedy. The common laws were restricted to a limited number of
remedies until the concept of law of equity was developed. In case of
breach of rights, there are only a few writs which can be filed and if in
any case the suit is not covered under the writs then the suit will be
dismissed. There are so many rights available but no remedy is available
in case of its breach. To remove this deficiency the concept of a court
of chancery came into existence and has the jurisdiction to decide
matters relating to equity and justice.
Essentials of Ubi jus ibiremedium
a. The maxim ubi jus ibiremedium can be applied only where the right
exists and that right should be recognized by the court of law;
b. A wrongful act must have been done which violates the legal rights of
a person clearly.
c. This maxim can be used only when sufficient relief has not been
provided by the court to the person who sustained the injury.
d. This maxim is applicable if any legal injury had been caused to any
person, if no legal injury has been caused then the maxim damnum sine
injuria will be used which means damage without any legal injury.
SardarAmarjit Singh Kalra v. Promod Gupta & Ors., the court held
that the principle of ubi jus ibiremedium is recognized as a basic
principle of the theory or philosophy of law. The Supreme Court also
held that it is the duty of the courts to protect and maintain the right of
parties and help them instead of denying them relief.
In the case of C.VeeraThevarvs The Secretary to Government, the
court held that there is no wrong without a remedy. The laws say that
in every case where a person is wronged and caused injury then should
be provided. Mere declaration of invalidity or death in lockup does
not provide any remedy to a person whose fundamental right is
violated.
2. Actiopersonalismoritur cum persona
Literal meaning of the maxim “Actiopersonalismoritur cum persona”
is ‘a personal right of action dies with the person.’
Explanation & Origin
The maxim is first quoted in a case from 1496, where a woman against
whom a defamation judgment was issued died before paying the
damages to the tortfeasor.
It has been argued by academics and acknowledged by the courts that
notwithstanding the Latinate form in which the proposition is expressed
its origins are less antiquated. It has been described by one Lord
Chancellor (Viscount Simon) as ”not in fact the source from which a
body of law has been deduced, but a confusing expression, framed in
the solemnity of the Latin tongue, in which the effect of death upon
certain personal torts was inaccurately generalised”
It is the principle of early law that the death of either of party to a
personal duty takes away all remedy and destroys the duty.
In English law, the principle is usually put in the
form actiopersonalismoritur cum persona, an expression of uncertain
but post-classical origin. The doctrine is embodied and not peculiar to
common law system. The idea belongs to primary strata in universal
law. In modern times it has been gradually limited by judicial decisions
and is now being still further restricted by legislation.
Illustration
If A commits battery on B and either party dies, the right of action
which accrued to B by the reason of the battery is taken away. But if A
commits a battery upon B, or do other injury to him, any right of action
which accrues to third person will not be affected by the death of B,as
far as the application of the maxim in question is concerned.
Case Reference
Hambly vs. Trott [(1776) 1 cowp 37]
The action of trover was subjected to scrutiny in order toascertain
whether it is so far recuperatory as to be maintainable after the death
of the tortfeasor. Lord Mansfield saw that the remedy savored strongly
of property, but not sufficiently so to prevent the right of action from
perishing with the person.
Nurani Jamal And Others vsNaramSrinivasaRao And Others [AIR
1996 AP 6]
The learned Judge, therefore, has agreed with the maxim
“actiopersonalismoritur cum persona “, has application in respect of
all personal wrongs, but he recognized an exception ‘where a tort-
feasor is benefited by the wrong done, an action would lie against the
representatives of a wrong-doer.’ Therefore, this decision also does
not help the third respondent.
Pinchon’s case [1612]
This case raised a still more difficult problem. Fitzerbert had said that
the debt was dead, like the testator.
Baker vs. Bolton [KBD 8 Dec 1808]
This case arose: The defendants were the proprietors of a stage coach,
on the top of which the plaintiff and his wife were travelling from
Portsmouth to London. The coach was overturned and the plaintiff’s
wife was so badly hurt that she died a month later. The plaintiff brought
an action for negligence and sought to recover for the loss of service
and consortium. It will be noted that the maxim actiopersonalis did not
apply and there was nothing to show that the defendant’s conduct
was felonious. Hence, the doctrine of merger was not applicable.
3. Ex turpicausa non oritur action
Literal Meaning of the maxim “{Exturpicausa non oritur action” is no
action arises on an immoral contract.
Explanation
According to this maxim, if a person is involved in illegal activity then
he/she cannot sue another for damages that arises out of that illegal
activity. The best example of this principle can be an injury to a person,
who is driving a stolen car (the person is aware about the fact that the
car is stolen). This maxim applies not only to tort law but also to
contract, restitution, property, and trusts. The rationale behind this
principle is that it would be wrong to allow a criminal to profit from a
crime committed by him/her. This principle is one of the widely used
by the lawyers of the defendant party as it allows the defendant to
escape his liability even though he is guilty of an unlawful act.
Illustration
‘N’ entered into a contract with ‘B’ for the supply of 10 kg Cannabis on
10th June 2018 for a consideration of Rs. 20,000. ‘B’ failed to supply
the cannabis, as a result of this ‘N’ sued ‘B’ for the breach of contract.
The court held that it was an immoral contract and hence cannot be
enforced.
Indian Law Position:
In India also the above-mentioned principle is widely used by advocates
of the defendants. However, there are two exceptions to this principle.
(1) In the case of Agents and Trustees, this defense is not available where
they are holding the property for another person even if the purpose
for which the property is to be used is unlawful.
(2) If the illegality is of so trivial nature that the plaintiff does not need to
rely upon it for his case. Denying him to recover the damages in such
cases would be against the public policy.
Illustration
Legislative Assembly of ‘XYZ’ country passed an amendment in
existing law which increased the penalty for committing the offence of
‘Drink & Drive’ to 10 years imprisonment from 5 years imprisonment.
In this case, all those who were found to be guilty of committing the
offence of ‘Drink & Drive’ before the passing of the amendment will be
punished as per the earlier law and have to go through imprisonment
for 5 years. Applying the amended law on them would be having ex
post facto effect which will violate Article 20(1) of the Constitution of
the ‘XYZ’ country.
Case Referred
I.T.C. Limited v. George Joseph Fernandes&Anr.
In the above mentioned case the principle of Exturpicausa non oritur
action was applied. In this case, Honorable Supreme Court provided
that –
“A contract which was not illegal from the beginning may be rendered
illegal later by the method of performance which did not comply with
the statutory requirements. The appellant’s burden was to show that
the charter party was illegal to take it out of the arbitration clause for if
the contract is illegal and not binding on the parties the arbitration
clause would also be not binding. Once it is shown to have been illegal
it would be unenforceable as ex turpicausa non oritur action.”
M.D., Army Welfare Housing Organization v. Sumangal Services Pvt. Ltd
In the above-mentioned case also the principle of Exturpicausa non
oritur action was applied.
Lane v. Holloway
This case is also one of the most famous cases related to this principle.
In this case an old gardener who had disputes with a café owner. One
day the gardener shouted abusive words at the wife of the café owner.
Due to this defendant stood up from his bed and went outside. The
gardener thought that he was about to be hit by the café owner and
therefore punched the café owner. The café owner retaliated and
punched him in the eyes which caused him grave injuries. The café
owner claimed that due to ex turpicausa non oritur action he cannot be
held liable. The court ruled in the favor of the garden owner by providing
the rational that the punch by the café owner was of greater proportion
than the proportion of the punch by the garden owner therefore there
was no ex turpicausa non oritur action.
4. Innuendo
‘Something not explicitly stated, but has the secondary defamatory
meaning.’ Innuendo is a defamatory statement made by the defendant,
which may not be a defamatory one, but an innocent one, but which
contains a secondary meaning, enough to make it a defamatory and
derogatory statement.
An innuendo (pronounced in-yu-EN-do) is when you say something
on the surface that is friendly and harmless that implicitly implies an
insult or disrespectful remark, a dirty joke, or even social or political
critique. Innuendos are widely used as a socially appropriate means of
being critical, rude, sexual, funny, or even flirtatious in daily
conversations. Typically, Innuendo applies to a circumstance in which
an individual expresses a factual situation and a misinterpretation is
extracted from it. An intimationregarding someone or something
rendered implicitly or explicitly to imply the implied object. Often when
the subject indicated is derogatory or derogative.
In Morrison v. Richie, the newspaper company published that Mrs
Morrison has given birth to twins, but when actually she has married
only 3 months ago. Though in a common notion, the statement is not
defamatory, but if the full facts are known the statement is definitely
derogatory on a lady and hence defamatory.
There are two types of innuendo meaning:
(i) False innuendo
Alternative meaning which the ordinary reasonable person can read
between the lines or infer from the words.
(ii) True innuendo
This is where the words appear to be innocent to some people but
appear to be defamatory to others because they have special
knowledge or extra information, an example of this would be, somebody
who is said to be getting married which would not be defamatory to the
majority of readers, but it would be to the readers who knew that the
person was already married and as such would be committing bigamy.
Publication
Words need to be published to a third party.
The defamation act does provide a defence to persons who are not
authors, editors, or commercial publishers if they took reasonable care
in the publication and did not know or had any reason to believe that
what they had done had contributed to the publication of a defamatory
statement. This covers printers, distributors, online device providers
etc.
An internet service provider who provides news content is not deemed
to have behaved defamatory. If however once notified of the offending
material the provider fails to remove, then it would not have acted
reasonably and the above defence would then not be available.
In Cassidy v. Daily Mirror, the newspaper company published that
the picture of the plaintiff’s husband with a girl posing with him stating
that they both were engaged. The plaintiff, who was the actual wife
got enraged as everyone in the society started thinking bad about her
and her relationship with her husband and hence, sued the newspaper
company. She was entitled to get damages.
5. Res ipsaloquitur
Res IpsaLoquitor is a legal term which means ‘the thing speaks for
itself.’ It is a very popular doctrine in the law of torts; it is circumstantial
or indirect evidence which infers negligence from the very nature of
the accident that has taken place and there is the absence of direct
evidence against the defendant. Res IpsaLoquitor is applied when it
can be said that without the defendant being negligent, the accident
would not have happened.
Background
Accidents happen all the time and many a time, it is because of
someone’s negligence. And in the law of torts, to prove somebody’s
negligence, the burden of proof is on the plaintiff, that is, someone
who is the victim of the tort. It becomes really difficult to prove that the
defendant was at fault and also to gather evidence against his act or
omission. Therefore, keeping this in mind, the principle of Res
IpsaLoquitor came into force under which a plaintiff can use
circumstantial evidence to establish negligence.
Elements of Res IpsaLiquitor
Before claiming the tort of Res IpsaLoquitor, a plaintiff must meet a few
requirements to claim compensation
· The event that caused injury to the plaintiff does not occur unless
someone has acted negligently.
· The evidence adduced rules out all the possibilities of the fault of the
plaintiff or third party.
· There is a duty of care of defendant towards the plaintiff which he
breached.
Development of the principle
The roots of the principle are in common law countries, which are
England in the case of Byrne v. Boadle. The facts of the case were that
in 1863 in England, a barrel of flour fell from a two-storey building and
hit the plaintiff’s head, but the plaintiff could not acquire direct
evidence against defendant to allege negligence on his part. But the
court held the judgment for the plaintiff and opined that the
circumstances were different in this case, and there could be a
presumption of negligence.
The main elements of res ipsa are that:
1. there has to be extraordinary damage,
2. injury caused by an instrument which was under the control of
defendant,
3. the injury is not caused by voluntary action of the plaintiff and
4. the defendant has no explanation regarding the negligence.
Landmark case-laws
Scott v. the London and St. Katherine Docks Company
The facts of this case were that plaintiff was an officer of Customs. He
was instructed to go from the East Quarry to Spirit Quarry by his
surveyor. There were warehouses on the Spirit Quarry. He went to the
entrance of one of the warehouses to find Mr. Lilley, the Surveyor. He
was told that Mr. Lilley is in another Warehouse. He went to the first
door to meet upon the Quarry. He went into the Warehouse and met a
labouring man about two yards within warehouse. He enquired from
the Labourer about Mr. Lilley, and he was informed that he could find
Mr. Lilley in the next doorway. In passing from one doorway to another,
six bags of sugar fell upon him, and he suffered injuries as the servants
of the dock company were lowering the bags of sugar. Except plaintiff,
there was nobody else on the spot of the accident. There was no
warning signal and no fence or barrier. The majority of the Court came
to the conclusion that falling of bags of sugar on the plaintiff itself is
not reasonable evidence of negligence and directed the case for a new
trial.
Rampeary and Another v. Jai Prakash and Another
In this case, the injured/plaintiff was a minor girl about nine years who
was passing by the road on its left side along with her mother.
Defendant was playing in the middle of the road. Another defendant
was sitting on the rod of the cycle. Suddenly, the cyclist turned his
cycle on his wrong side (to his right side) and collided with the minor
as a result of which she suffered compound fractures in two of her
bones in the right leg with other bleeding injuries.
The pleadings of the minor were that she suffered injuries due to
negligence on the part of the cyclist and defendant No.2, and they are
liable for damages. Both the defendants denied the contentions. Trial
Court discussed the entire evidence and decreed the suit for the sum
of Rs.567/-. The Ld. First Appellate Court set aside the judgment of Ld.
Trial Court and dismissed the suit by holding that the plaintiff failed to
lead satisfactory evidence of negligence which can be said to be a
proximate cause of accident and injury to her. However, the Ld. First
Appellate Court awarded her Rs.300/- towards expenses for her
treatment. The injured/plaintiff approached Hon’ble Patna High Court.
Hon’ble Patna High Court (Second Appellate Court) set aside the
judgment of Ld. First Appellate Court and remanded the case for fresh
decision.
State of Punjab v. Modern Cultivators, Ladwa
The facts of this case were that plaintiff Modern Cultivators suffered
losses due to flooding of its land as a result of a breach in a canal
belonging to the State of Punjab. The Trial Court awarded damages
and decreed the suit which was upheld by the First Appellate Court
and in Second Appeal by Hon’ble High Court. However, High Court
reduced a number of damages. Both the parties approached Hon’ble
Supreme Court. The Hon’ble Apex Court held the defendant was
negligent by applying the rule of Res IpsaLoquitor.
Q.27. State the salient features of the Consumer Protection Act, 2019.
Or
How far the Consumer Protection Act 2019, has been successful in
providing better service to the consumers? Give reasons.
Or
Explain the main characteristics of Consumer Protection Act, 2019.
Ans. The new Consumer Protection Act was passed by Parliament in 2019.
It came into force in July 2020 and replaced the Consumer Protection
Act, 1986.The new act will be swift and less time consuming compared
to the older Consumer Protection Act, 1986 in which single-point access
to justice was given making it a time-consuming exercise. The old act
provided for a three-tier consumer dispute redressal machinery at the
National (National Consumer Disputes Redressal Commission), State
and District levels.
Consumer Protection Act, 2019 is a law to protect the interests of the
consumers. This Act provides safety to consumers regarding defective
products, dissatisfactory services, and unfair trade practices. The basic
aim of the Consumer Protection Act, 2019 is to save the rights of the
consumers by establishing authorities for timely and effective
administration and settlement of consumers’ disputes.
Salient Provisions of the Consumer Protection Act
1. New definition of consumer:
The new Act has widened the definition of ‘consumer.’
Definition of consumer:
As per the Act, a person is called a consumer who avails the services
and buys any good for self-use. Worth to mention that if a person
buys any good or avails any service for resale or commercial purposes,
he/she is not considered a consumer. This definition covers all types
of transactions i.e. offline and online through teleshopping, direct
selling, or multi-level marketing.
2. Central Consumer Protection Authority:
(a) The Act proposes the establishment of the Central Consumer
Protection Authority (CCPA) as a regulatory authority.
(b) The CCPA will protect, promote, and enforce the rights of consumers
and regulate cases related to unfair trade practices, misleading
advertisements, and violation of consumer rights.
(c) CCPA would be given wide-ranging powers.
(i) The CCPA will have the right to take suo-moto actions, recall products,
order reimbursement of the price of goods/services, cancel licenses,
impose penalties, and file class-action suits.
(ii) The CCPA will have an investigation wing to conduct independent
inquiry or investigation into consumer law violations.
2. Consumer Disputes Redressal Commission:
a. The Act has the provision of the establishment of Consumer Disputes
Redressal Commissions (CDRCs) at the national, state and district
levels to entertain consumer complaints.
b. As per the notified rules, the State Commissions will furnish information
to the Central Government on a quarterly basis on vacancies, disposal,
the pendency of cases and other matters.
c. The CDRCs will entertain complaints related to:
(i) Overcharging or deceptive charging
(ii) Unfair or restrictive trade practices
(iii) Sale of hazardous goods and services which may be hazardous to life.
(iv) Sale of defective goods or services
As per the Consumer Disputes Redressal Commission Rules, there will
be no fee for filing cases up to Rs. 5 lakh.
3. E-Filing of Complaints:
(a) The new Act provides flexibility to the consumer to file complaints
with the jurisdictional consumer forum located at the place of residence
or work of the consumer. This is unlike the earlier condition where the
consumer had to file a complaint at the place of purchase or where the
seller has its registered office address.
(b) The new Act also contains enabling provisions for consumers to file
complaints electronically and for hearing and/or examining parties
through video-conferencing.
(c) Consumers will also not need to hire a lawyer to represent their cases.
4. Product Liability & Penal Consequences:
a. The Act has introduced the concept of product liability.
i. A manufacturer or product service provider or product seller will now
be responsible to compensate for injury or damage caused by defective
products or deficiency in services.
b. This provision brings within its scope, the product manufacturer,
product service provider and product seller, for any claim for
compensation. The term ‘product seller’ would also include e-commerce
platforms.
5. Penalties for Misleading Advertisement:
The CCPA may impose a penalty on a manufacturer or an endorser, for
a false or misleading advertisement. The CCPA may also sentence
them to imprisonment.
6. Provision for Alternate Dispute Resolution:
a. The new Act provides for mediation as an Alternate Dispute Resolution
mechanism. For mediation, there will be a strict timeline fixed in the
rules.
b. As per the recently notified rules, a complaint will be referred by a
Consumer Commission for mediation, wherever scope for early
settlement exists and parties agree for it. The mediation will be held in
the Mediation Cells to be established under the aegis of the Consumer
Commissions. There will be no appeal against settlement through
mediation.
7. Unfair Trade Practices:
a. The new Act has armed the authorities to take action against unfair
trade practices too.
b. The Act introduces a broad definition of Unfair Trade Practices, which
also includes the sharing of personal information given by the consumer
in confidence unless such disclosure is made in accordance with the
provisions of any other law.
8. The Central Consumer Protection Council:
The Consumer Protection Act empowers the Central Government to
establish a Central Consumer Protection Council. It will act as an
advisory body on consumer issues.
(a) As per the notified Central Consumer Protection Council Rules, the
Central Consumer Protection Council would be headed by the Union
Minister of Consumer Affairs, Food and Public Distribution with the
Minister of State as Vice Chairperson and 34 other members from
different fields.
(b) The Council, which has a three-year tenure, will have a Minister-in-
charge of consumer affairs from two States from each region – North,
South, East, West, and NER. There is also a provision for having
working groups from amongst the members for specific tasks.
9. Applicability:
This Act is applicable to all the products and services, until or unless
any product or service is especially debarred out of the scope of this
Act by the Central Government.
10. Empowering consumers:
The new Act will empower consumers and help them in protecting
their rights through its various rules and provisions. The new Act will
help in safeguarding consumer interests and rights.
· Consumer-driven businesses such as retail, e-commerce would need
to have robust policies dealing with consumer redressal in place.
· The new Act will also push the consumer-driven businesses to take
extra precautions against unfair trade practices and unethical business
practices.
11. Inclusion of the e-commerce sector:
a. The earlier Act did not specifically include e-commerce transactions,
and this lacuna has been addressed by the new Act.
i. E-commerce has been witnessing tremendous growth in recent times.
The Indian e-commerce market is expected to grow to US$ 200 billion
by 2026.
b. The Act also enables regulations to be notified on e-commerce and
direct selling with a focus on the protection of interest of consumers.
This would involve rules for the prevention of unfair trade practices
by e-commerce platforms.
i. As per the notified rules, every e-commerce entity is required to provide
information relating to return, refund, exchange, warranty and
guarantee, delivery and shipment, modes of payment, grievance
redressal mechanism, payment methods, the security of payment
methods, charge-back options, etc. including country of origin which
are necessary for enabling the consumer to make an informed decision
at the pre-purchase stage on its platform.
ii. The e-commerce platforms will have to acknowledge the receipt of any
consumer complaint within forty-eight hours and redress the complaint
within one month from the date of receipt under this Act. This will
bring e-commerce companies under the ambit of a structured consumer
redressal mechanism.
iii. E-commerce entities that do not comply will face penal action.
12. Time-bound redressal:
a. A large number of pending consumer complaints in consumer courts
have been common across the country. The new Act by simplifying
the resolution process can help solve the consumer grievances speedily.
b. A main feature of the Act is that under this, the cases are decided in a
limited time period.
13. Responsible endorsement:
a. The new Act fixes liability on endorsers considering that there have
been numerous instances in the recent past where consumers have
fallen prey to unfair trade practices under the influence of celebrities
acting as brand ambassadors.
b. This will make all stakeholders – brands, agencies, celebrities,
influencers, and e-commerce players – a lot more responsible. The new
Act would force the endorser to take the onus and exercise due
diligence to verify the veracity of the claims made in the advertisement
to refute liability claims.
14. Upholding consumer interests:
a. For the first time, there will be an exclusive law dealing with Product
Liability.
b. Product liability provision will deter manufacturers and service
providers from delivering defective products or deficient services.
c. The new legislation empowers the National Consumers Dispute
Redressal Committee as well as the State Commission to declare null
and void any terms of a contract while purchasing a product. This will
go a long way in protecting consumers, who are often subject to
contract conditions that favour a seller or manufacturer.
15. Alternate dispute redressal mechanism:
a. The provision of Mediation will make the process of dispute
adjudication simpler and quicker.
b. This will provide a better mechanism to dispose of consumer complaints
in a speedy manner and will help in the disposal of a large number of
pending cases in consumer courts across the nation.
16. Simplified process for grievance redressal:
a. The new Act would ease the overall process of consumer grievance
redressal and dispute resolution process. This will help reduce
inconvenience and harassment for the consumers.
b. The enhanced pecuniary jurisdiction and provisions providing
statutory recognition to mediation processes, enabling filing of
complaints from any jurisdiction and for hearing parties through video-
conferencing will increase accessibility to judicial forums and afford
crucial protection in times when international e-commerce giants are
expanding their base.
Conclusion
The Act is a welcome change in favor of the consumers. It provides
them with clearly defined rights and dispute resolution process which
may enable them to resolve their grievances on a fast-track basis.
Online marketplaces and online auction sites, which have all throughout
been included under the purview of an “aggregator”, have also been
included under the purview of this Act which will place more
responsibility on them with respect to the goods and services being
sold and provided by them. Apart from establishing authorities at
district, state and national level for consumer disputes redressal, the
Act also seeks to hold the product manufacturers liable along with the
product service providers and product sellers where the rights of the
consumer have been infringed due to defects or deficiency in the
goods and services provided.
Q.28. Define the following:
1. Consumer;
2. Complaint,
3. complainant;
4. defect;
5. Service,
6. Deficiency,
7. Consumer Dispute,
8. Trader and
9. Unfair Trade Practice.
Ans.
1. Consumer
Section 2(7) “”consumer” means any person who—
(i) buys any goods for a consideration which has been paid or promised
or partly paid and partly promised, or under any system of deferred
payment and includes any user of such goods other than the person
who buys such goods for consideration paid or promised or partly
paid or partly promised, or under any system of deferred payment,
when such use is made with the approval of such person, but does not
include a person who obtains such goods for resale or for any
commercial purpose; or
(ii) (ii) hires or avails of any service for a consideration which has been
paid or promised or partly paid and partly promised, or under any
system of deferred payment and includes any beneficiary of such
service other than the person who hires or avails of the services for
consideration paid or promised, or partly paid and partly promised, or
under any system of deferred payment, when such services are availed
of with the approval of the first mentioned person, but does not include
a person who avails of such service for any commercial purpose.
Explanation.—For the purposes of this clause,—
a. the expression “commercial purpose” does not include use by a person
of goods bought and used by him exclusively for the purpose of earning
his livelihood, by means of self-employment;
b. the expressions “buys any goods” and “hires or avails any services”
includes offline or online transactions through electronic means or by
teleshopping or direct selling or multi-level marketing;”
The scope of the term consumer has been defined broadly by including
even consumers who make online purchases. The Consumer Protection
Act 2019 defines the term consumer as a person who buys goods or
services for a consideration which is paid or partly paid or promised to
be paid, however, it does not include the goods and services bought
for resale or any commercial purpose. The CP Act 2019 stipulates very
clearly in the explanation that the terms “buy any goods” or “hires or
avail any services” would include even online transactions made by
electronic means or by telemarketing and teleshopping. A person
placing an order based on a teleshopping sale and is unsatisfied with
the product such a consumer can file a complaint in the consumer
forum.
Worth to mention that if a person buys any good and avail any service
for resale or commercial purpose, is not considered a consumer.
2. Complaint
Section 2(6) “”complaint” means any allegation in writing, made by a
complainant for obtaining any relief provided by or under this Act,
that—
(i) an unfair contract or unfair trade practice or a restrictive trade practice
has been adopted by any trader or service provider;
(ii) the goods bought by him or agreed to be bought by him suffer from
one or more defects;
(iii) the services hired or availed of or agreed to be hired or availed of by
him suffer from any deficiency;
(iv) a trader or a service provider, as the case may be, has charged for the
goods or for the services mentioned in the complaint, a price in excess
of the price—
(b) fixed by or under any law for the time being in force; or
(c) displayed on the goods or any package containing such goods; or
(d) displayed on the price list exhibited by him by or under any law
for the time being in force; or
(e) agreed between the parties;
(v) the goods, which are hazardous to life and safety when used, are being
offered for sale to the public—
(a) in contravention of standards relating to safety of such goods as
required to be complied with, by or under any law for the time being in
force;
(b) where the trader knows that the goods so offered are unsafe to the
public;
(vi) the services which are hazardous or likely to be hazardous to life and
safety of the public when used, are being offered by a person who
provides any service and who knows it to be injurious to life and
safety;
(vii) a claim for product liability action lies against the product manufacturer,
product seller or product service provider, as the case may be;”
2. Complainant
Section 2(5) “”complainant” means—
(i) a consumer; or
(ii) any voluntary consumer association registered under any law for the
time being in force; or
(iii) the Central Government or any State Government; or
(iv) the Central Authority; or
(v) one or more consumers, where there are numerous consumers having
the same interest; or
(vi) in case of death of a consumer, his legal heir or legal representative; or
(vii) in case of a consumer being a minor, his parent or legal guardian;”
3. Defect
Section 2(10) “”defect” means any fault, imperfection or shortcoming
in the quality, quantity, potency, purity or standard which is required
to be maintained by or under any law for the time being in force or
under any contract, express or implied or as is claimed by the trader in
any manner whatsoever in relation to any goods or product and the
expression “defective” shall be construed accordingly;”
4. Service
Section 2(42)””service” means service of any description which is
made available to potential users and includes, but not limited to, the
provision of facilities in connection with banking, financing, insurance,
transport, processing, supply of electrical or other energy, telecom,
boarding or lodging or both, housing construction, entertainment,
amusement or the purveying of news or other information, but does
not include the rendering of any service free of charge or under a
contract of personal service;”
5. Deficiency
Section 2(11) “”deficiency” means any fault, imperfection, shortcoming
or inadequacy in the quality, nature and manner of performance which
is required to be maintained by or under any law for the time being in
force or has been undertaken to be performed by a person in pursuance
of a contract or otherwise in relation to any service and includes—
(i) any act of negligence or omission or commission by such person
which causes loss or injury to the consumer; and
(ii) deliberate withholding of relevant information by such person to the
consumer;”
6. Consumer Dispute
Section 2(8) “”consumer dispute” means a dispute where the person
against whom a complaint has been made, denies or disputes the
allegations contained in the complaint;”
7. Trader
Section 2(45) “”trader”, in relation to any goods, means a person who
sells or distributes any goods for sale and includes the manufacturer
thereof, and where such goods are sold or distributed in package form,
includes the packer thereof;”
8. Unfair Trade Practice
Section 2(47) “”unfair trade practice” means a trade practice which,
for the purpose of promoting the sale, use or supply of any goods or
for the provision of any service, adopts any unfair method or unfair or
deceptive practice including any of the following practices, namely:—
(i) making any statement, whether orally or in writing or by visible
representation including by means of electronic record, which—
(a) falsely represents that the goods are of a particular standard, quality,
quantity, grade, composition, style, or model;
(b) falsely represents that the services are of a particular standard, quality,
or grade;
(c) falsely represents any re-built, second-hand, renovated, reconditioned
or old goods as new goods;
(d) represents that the goods or services have sponsorship, approval,
performance, characteristics, accessories, uses or benefits which such
goods or services do not have;
(e) represents that the seller or the supplier has a sponsorship or approval
or affiliation which such seller or supplier does not have;
(f) makes a false or misleading representation concerning the need for, or
the usefulness of, any goods or services;
(g) gives to the public any warranty or guarantee of the performance,
efficacy or length of life of a product or of any goods that is not based
on an adequate or proper test thereof:
Provided that where a defence is raised to the effect that such warranty
or guarantee is based on adequate or proper test, the burden of proof
of such defence shall lie on the person raising such defence;
(h) makes to the public a representation in a form that purports to be—
(A) a warranty or guarantee of a product or of any goods or services; or
(B) a promise to replace, maintain or repair an article or any part thereof or
to repeat or continue a service until it has achieved a specified result,
if such purported warranty or guarantee or promise is materially
misleading or if there is no reasonable prospect that such warranty,
guarantee or promise will be carried out;
(i) materially misleads the public concerning the price at which a product
or like products or goods or services, have been or are, ordinarily sold
or provided, and, for this purpose, a representation as to price shall be
deemed to refer to the price at which the product or goods or services
has or have been sold by sellers or provided by suppliers generally in
the relevant market unless it is clearly specified to be the price at which
the product has been sold or services have been provided by the
person by whom or on whose behalf the representation is made;
(j) gives false or misleading facts disparaging the goods, services or
trade of another person.
Explanation.—For the purposes of this sub-clause, a statement that
is,—
(A) expressed on an article offered or displayed for sale, or on its wrapper
or container; or
(B) expressed on anything attached to, inserted in, or accompanying, an
article offered or displayed for sale, or on anything on which the article
is mounted for display or sale; or
(C) contained in or on anything that is sold, sent, delivered, transmitted or
in any other manner whatsoever made available to a member of the
public, shall be deemed to be a statement made to the public by, and
only by, the person who had caused the statement to be so expressed,
made or contained;
(ii) permitting the publication of any advertisement, whether in any
newspaper or otherwise, including by way of electronic record, for the
sale or supply at a bargain price of goods or services that are not
intended to be offered for sale or supply at the bargain price, or for a
period that is, and in quantities that are, reasonable, having regard to
the nature of the market in which the business is carried on, the nature
and size of business, and the nature of the advertisement.
Explanation.—For the purpose of this sub-clause, “bargain price” means,—
i. a price that is stated in any advertisement to be a bargain price, by
reference to an ordinary price or otherwise; or
ii. a price that a person who reads, hears or sees the advertisement,
would reasonably understand to be a bargain price having regard to
the prices at which the product advertised or like products are ordinarily
sold;
(iii) permitting—
(a) the offering of gifts, prizes or other items with the intention of not
providing them as offered or creating impression that something is
being given or offered free of charge when it is fully or partly covered
by the amount charged, in the transaction as a whole;
(b) the conduct of any contest, lottery, game of chance or skill, for the
purpose of promoting, directly or indirectly, the sale, use or supply of
any product or any business interest, except such contest, lottery,
game of chance or skill as may be prescribed;
(c) withholding from the participants of any scheme offering gifts, prizes
or other items free of charge on its closure, the information about final
results of the scheme.
Explanation.—For the purpose of this sub-clause, the participants of a scheme
shall be deemed to have been informed of the final results of the scheme
where such results are within a reasonable time published, prominently
in the same newspaper in which the scheme was originally advertised;
(iv) permitting the sale or supply of goods intended to be used, or are of a
kind likely to be used by consumers, knowing or having reason to
believe that the goods do not comply with the standards prescribed
by the competent authority relating to performance, composition,
contents, design, constructions, finishing or packaging as are
necessary to prevent or reduce the risk of injury to the person using
the goods;
(v) permitting the hoarding or destruction of goods, or refusal to sell the
goods or to make them available for sale or to provide any service, if
such hoarding or destruction or refusal raises or tends to raise or is
intended to raise, the cost of those or other similar goods or services;
(vi) manufacturing of spurious goods or offering such goods for sale or
adopting deceptive practices in the provision of services;
(vii) not issuing bill or cash memo or receipt for the goods sold or services
rendered in such manner as may be prescribed;
(viii) refusing, after selling goods or rendering services, to take back or
withdraw defective goods or to withdraw or discontinue deficient
services and to refund the consideration thereof, if paid, within the
period stipulated in the bill or cash memo or receipt or in the absence
of such stipulation, within a period of thirty days;
(ix) to other person any personal information given in confidence by the
consumer unless such disclosure is made in accordance with the
provisions of any law for the time being in force.”
Q. 29. Explain the composition and objects of Central, State and District
Consumer Protection Council.
Ans. Central Consumer Protection Authority (CCPA)
An additional authority has been added to the Consumer Protection
Act 2019 by the initiation of Central Consumer Protection Authority
(CCPA) created to act as a regulatory authority, it shall be responsible
for the protection of rights of the consumer as a class. The CCPA is to
be constituted by the Central Government. This authority is empowered
to regulate matters relating to violation prejudicial to the interests of
public and consumers and to promote, protect and enforce the rights
of consumers as a class. An appeal to an order passed by the CCPA on
this issue can be filed under the National Commission within a period
of 30 days from the date of receipt of such order. The CCPA shall have
an investigation wing headed by a Director-General for the purpose of
conducting inquiry or investigation under this Act as may be directed
by the CCPA. The CCPA could use its powers and direct all the e-
commerce websites to display the country of origin on all products
listed on their portals. The CCPA could also ask all the e-commerce
portals to put online the grievance mechanism that the consumers can
access at the website and display name and designation of the
grievances officer as well contact number if websites are not following
it already.
Section 3. Central Consumer Protection Council
(1) “The Central Government shall, by notification, establish with effect
from such date as it may specify in that notification, the Central
Consumer Protection Council to be known as the Central Council.
(2) The Central Council shall be an advisory council and consist of the
following members, namely:—
(a) the Minister-in-charge of the Department of Consumer Affairs in the
Central Government, who shall be the Chairperson; and
(b) such number of other official or non-official members representing
such interests as may be prescribed.”
Section 4.Procedure for meetings of Central Council.
(1) “The Central Council shall meet as and when necessary, but at least
one meeting of the Council shall be held every year.
(2) The Central Council shall meet at such time and place as the
Chairperson may think fit and shall observe such procedure in regard
to the transaction of its business as may be prescribed.”
Section 5.Objects of Central Council.
“The objects of the Central Council shall be to render advice on
promotion and protection of the consumers’ rights under this Act.”
Section 3 provides for the establishment of Central Consumer
Protection Council at the center. This section empowers the central
government to establish by notification a council to be known as the
Central Consumer Protection Council.
Provisions provided under Consumer Protection (Central Consumer
Protection Council) Rules, 2020.
Rule 3.Composition of Central Council. — The Central Government shall, by
notification in the Official Gazette, establish the Central Council which
shall consist of the following members, not exceeding thirty-six, namely:
—
a. the Minister in-charge of Consumer Affairs in the Central Government
who shall be the Chairperson of the Central Council;
b. the Minister of State (where he is not holding independent charge) or
Deputy Minister in charge of Consumer Affairs in the Central
Government who shall be the Vice-Chairperson of the Central Council;
c. the Minister in-charge of Consumer Affairs of two of the States from
each region as mentioned in Schedule I to be changed by rotation on
expiration of the term of the Central Council on each occasion;
d. an administrator (whether designated as administrator or Lieutenant
Governor) of a Union territory, to represent that Union territory, as
mentioned in Schedule II, to be changed by rotation on expiration of
the term of the Central Council on each occasion;
e. two Members of Parliament—one from the LokSabha and one from the
RajyaSabha;
f. representatives of Departments of the Central Government, autonomous
organisations or regulators concerned with consumer interests, not
exceeding five to be nominated by the Central Government;
g. the Chief Commissioner of the Central Consumer Protection Authority;
h. the Registrar, National Consumer Disputes Redressal Commission, New
Delhi;
i. representatives of consumer organisations not exceeding five, to be
nominated by the Central Government;
j. representatives with proven expertise and experience who are capable
of representing consumer interests, drawn from amongst consumer
organisations, consumer activists, research and training organisations,
academicians, farmers, trade or industry, not exceeding five, one from
each of the regions specified in Schedule I, of whom at least one shall
be a woman;
k. the Secretaries in-charge of Consumer Affairs in the States, not
exceeding three, to be nominated by the Central Government;
l. the Secretary in-charge of Consumer Affairs in the Central Government
shall be the Member-Secretary of the Central Council.
Rule 4.Term of Central Council. –
The term of the Central Council shall be three years:
Provided that the Central Council shall continue to function for a further
period of three months or till it is reconstituted, whichever is earlier.
Rule 5.Resignation of members of Central Council. –
Any member may, by notice in writing under his hand addressed to the
Chairperson of the Central Council, resign from the Central Council.
Rule 6. Vacancy caused by resignation. –
(1) A vacancy caused by the resignation of a member under rule 5 shall be
filled by a fresh appointment from the same category of members by
the Central Government.
(2) The person appointed to fill the vacancy caused by the resignation of
a member under rule 5 shall hold office only for the period of time that
the original member would have been entitled to hold office had the
vacancy not occurred.
Rule 7.Working Groups. –
(1) For the purposes of performing its functions under the Act, the
Central Council may constitute from amongst its members, such
working groups as it may deem necessary, and every working group
so constituted shall perform such task as are assigned to it by the
Central Council.
(2) The Central Council shall entrust to each working group clearly defined
tasks which are specified through terms of reference, and which shall
also include the time-period within which such task are to be completed.
(3) The working groups shall report to the Chairperson of the Central
Council.
(4) The findings of each working group shall be placed before the Central
Council for its consideration.
(5) The working group shall cease to function on the completion of the
task for which it was constituted.
Rule 8.Meetings of Central Council for transaction of business. –
(1) The meetings of the Central Council shall ordinarily be held in the
National Capital Territory of Delhi:
Provided that the Central Council may also hold its meetings at any
other place in India, wherever in the opinion of the Chairperson, it is
expedient so to do.
(2) The Chairperson, or in his absence, the Vice-Chairperson shall preside
over the meetings of the Central Council.
(3) In the absence of both the Chairperson and the Vice-Chairperson, the
meetings of the Central Council shall be presided over by a member of
the Central Council elected for this purpose.
(4) A meeting of the Central Council may be called with the approval of
the Chairperson by issuing a notice in writing to every member at least
fifteen days before the intended date of the meeting by post, or through
e-mail to facilitate speedy communication.
(5) The notice of every meeting of the Central Council shall intimate the
time, date, and place of the meeting and the items of agenda for the
meeting.
(6) Any business not included in the agenda shall not be transacted at a
meeting of the Central Council except with the permission of the
Chairperson, or the Vice-Chairperson, or the member presiding over
the meeting, as the case may be.
(7) The draft minutes of each meeting of the Central Council shall be
prepared as soon as possible and not later than one week from the
conclusion of each meeting and the same shall be submitted to the
Chairperson or the Vice-Chairperson or to the member who presided
over the meeting for his approval.
(8) The draft minutes of each meeting of the Central Council approved by
the Chairperson or the Vice-Chairperson or the member who presided
over this meeting shall be forwarded to each member of the Central
Council as soon as possible for adoption at the next meeting.
(9) No proceedings of the Central Council shall be invalid merely by reasons
of existence of any vacancy in or any defect in the constitution of the
Central Council.
Rule 9. Reimbursement of expenses and sitting fees.—
(1) Non-local non-official members of the Central Council shall be entitled
to:––
(a) avail economy class airfare in connection with journeys undertaken to
and from for the purpose of attending meetings of the Central Council
or the working groups;
(b) a sum of rupees five thousand per each day of the meeting of the
Central Council or its working groups as incidental charges to cover
the expenditure towards their daily allowance, lodging, local
conveyance from their place of residence to the station or airport and
from the station or airport to the venue of meeting of the Central
Council or its working groups, and vice-versa.
(2) Every claim made under sub-rule (1) shall be subject to the member of
the Central Council certifying that he shall not claim any benefit from
any other ministry, department or organisation of the Central
Government during his visit for the purpose of attending the meeting
of the Central Council or any of its working groups.
(3) Local non-official members residing at the place of the venue of the
meeting of the Central Council or its working groups, shall be entitled
to avail consolidated conveyance hire charges of up to rupees one
thousand per each day of the meeting irrespective of the classification
of the city.
(4) Members of Parliament attending meetings of the Central Council or
its working groups shall be entitled to travelling and daily allowances
at such rates as are admissible to such Members.
The number of meeting:
According to section 4 clause 1 of the act, it is mandatory that the
central council must hold at least one meeting in a year. But it felt
necessary, it may meet more than once.
The procedure of meeting:
According to provisions, the central council shall follow the following
procedure in its meeting whenever they held. The main steps of the
procedure are:
1. Proper Authority: The meeting should be called by proper authority in
case of the central council. The proper authority would be the chairman
of the council.
2. Notice: Proper notice of the meeting should be given to the members
before the meeting. Each member should be given such notice. The
notice should be given at least 10 days before the date of the meeting
of the council. The notice shall specify the day, time and place of the
meeting.
3. Presiding Officer: It shall be presided over by the chairman of the
council. In his absence, the vice-chairman may conduct the proceedings
in the absence of both, the council should elect a number to preside
over the meeting.
4. Resolution: To act do not provide for any specific majority to pass the
resolution. It shall be passed by a simple majority of the members
present and voting, such resolution shall be only recommendatory in
nature it shall not be kindling upon the authorities concerned with the
enforcement of the provisions of the act.
State Consumer Protection Council
Section 6. State Consumer Protection Council
(1) “Every State Government shall, by notification, establish with effect
from such date as it may specify in such notification, a State Consumer
Protection Council for such State to be known as the State Council.
(2) The State Council shall be an advisory council and consist of the
a. the Minister-in-charge of Consumer Affairs in the State Government
who shall be the Chairperson;
b. such number of other official or non-official members representing
such interests as may be prescribed;
c. such number of other official or non-official members, not exceeding
ten, as may be nominated by the Central Government.
(3) The State Council shall meet as and when necessary but not less than
two meetings shall be held every year.
(4) The State Council shall meet at such time and place as the Chairperson
may think fit and shall observe such procedure in regard to the
transaction of its business, as may be prescribed.”
Section 7. Objects of State Council
“The objects of every State Council shall be to render advice on
promotion and protection of consumer rights under this Act within the
State.”
According to section 6, the state government is empowered to establish
a State Consumer Protection Council in every state.
Object:
The object of the commission is to promote and protect within the
state the rights of the consumer.
Composition:
The state consumer protection council consist of following:
(1) The minister in charge of the consumer affairs in the state government
as chairman.
(2) Such number of other official or non-official members representing
such interest as may be prescribed by the state government.
The maximum number of officials or non-official members is 10, who
shall be nominated by the central government.
Term of Council:
The term of council is of 3 years.
The number of meeting:
The State Council shall meet as and when necessary. The time and
place of the meeting shall be fixed by the Chairman. The Council shall
observe such procedure regard to the transactions of its business as
may be prescribed by the state government. At least two meetings
shall be held every year.
The procedure of the council:
It has been left to the state government to prescribe the procedure of
the meetings of the council.
District Consumer Protection Council.
Section 8.District Consumer Protection Council.
(1) “The State Government shall, by notification, establish for every District
with effect from such date as it may specify in such notification, a
District Consumer Protection Council to be known as the District
Council.
(2) The District Council shall be an advisory council and consist of the
a. the Collector of the district (by whatever name called), who shall be
the Chairperson; and
b. such number of other official and non-official members representing
such interests as may be prescribed.
(3) The District Council shall meet as and when necessary but not less
than two meetings shall be held every year.
(4) The District Council shall meet at such time and place within the district
as the Chairperson may think fit and shall observe such procedure in
regard to the transaction of its business as may be prescribed.”
Section 9.Objects of District Council.
“The objects of every District Council shall be to render advice on
promotion and protection of consumer rights under this Act within the
district.”
Object: To promote and protect within the district the interests of the consumer.
Composition:
1. District collector as the chairman.
2. Other official and non-official members, representing such interests as
may be prescribed.
Meetings:
District Consumer Protection Council meetings shall be held as per the
requirement but it will be necessary to hold a minimum of two meetings
in a year.
Q. 30. Explain the composition and Jurisdiction of:
1. District Consumer Disputes Redressal Commission
2. State Consumer Disputes Redressal Commission
3. National Consumer Disputes Redressal Commission
Ans. Consumer Disputes Redressal Commission
The Consumer Disputes Redressal Commission is categorized under
3 heads:
1. District Consumer Disputes Redressal Commission (District
Commission);
2. State Consumer Disputes Redressal Commission (State Commission);
3. National Consumer Disputes RedressalCommission (National
Commission).
It is important to note that in the new Amendment Act, 2019, the word
‘commission’ has been substituted for ‘forum’.
District Commission
Section 28. Establishment of District Consumer Disputes Redressal
Commission
(1) “The State Government shall, by notification, establish a District
Consumer Disputes Redressal Commission, to be known as the District
Commission, in each district of the State:
Provided that the State Government may, if it deems fit, establish more
than one District Commission in a district.
(2) Each District Commission shall consist of—
(a) a President; and
(b) not less than two and not more than such number of members as may
be prescribed, in consultation with the Central Government.”
Establishment and Composition:
This is the lowest rung in the redressal commissions that consumers
can approach. The State Government, under section 28(1) establishes
at least one district consumer dispute redressal commission in every
district of the state. If the government deems fit, it can even establish
more than one district commission in a district. Every district
commission needs to have:
a. a minimum of one president and
b. two members but can have more members after discussing it with the
Central government.
Qualifications:
According to section 29, the Central Government may, by notification,
make rules to provide for the qualifications, method of recruitment,
procedure for appointment, term of office, resignation and removal of
the President and members of the District Commission.
According to Rule 4, of Consumer Protection (Qualification for
appointment, method of recruitment, procedure of appointment, term
of office, resignation and removal of the President and members of
the State Commission and District Commission) Rules, 2020, a person
shall not be qualified for appointment as President, unless he is, or has
been , or is qualified to be a District Judge.
A person shall not be qualified for appointment as member unless he-
(a) is of not less than thirty-five years of age;
(b) possesses a bachelor’s degree from a recognised University; and
(c) is a person of ability, integrity and standing, and having special
knowledge and professional experience of not less than fifteen years
in consumer affairs, law, public affairs, administration,
economics, commerce, industry, finance, management, engineering,
technology, public health or medicine .
At least one member or the President of the District Commission shall
be a woman.
shall be disqualified for appointment as the President or a member of a
State Commission or District Commission if he—
(1) has been convicted and sentenced to imprisonment for an offence
which involves moral turpitude; or
(2) has been adjudged to be insolvent; or
(3) is of unsound mind and stands so declared by a competent court; or
(4) has been removed or dismissed from the service of the State
Government or Central Government or a body corporate owned or
controlled by such Government; or
(5) has, in the opinion of the State Government, such financial or other
interest as is likely to prejudicially affect his functions as the President
or a member.
Tenure & Removal:
According to Rule 10 of Consumer Protection (Qualification for
the State Commission and District Commission) Rules, 2020, the
President and every member of the State Commission and the District
Commission shall hold office for a term of four years or up to the age of
sixty-five years, whichever is earlier and shall be eligible for
reappointment for another term of four years subject to the age limit of
sixty-five years, and such reappointment is made on the basis of the
recommendation of the Selection Committee.
Rule 7 provides that, the President or any member may, by writing under his
hand addressed to the State Government, resign his office at any time.
Rule 8 says that, The State Government shall remove from office any President
or member, who—
(a) has been adjudged as an insolvent; or
(b) has been convicted of an offence which involves moral turpitude; or
(c) has become physically or mentally incapable of acting as such member;
or
(d) has acquired such financial or other interest as is likely to affect
prejudicially his functions as a member; or
(e) has so abused his position as to render his continuance in office
prejudicial to public interest.
Process of Appointment:
Rule 6 of Consumer Protection (Qualification for appointment, method of
recruitment, procedure of appointment, term of office, resignation
and removal of the President and members of the State Commission
and District Commission) Rules, 2020, saya that, the President and
members of the State Commission and the District Commission shall
be appointed by the State Government on the recommendation of a
Selection Committee, consisting of the following persons, namely: –
(a) Chief Justice of the High Court or any Judge of the High Court
nominated by him- Chairperson;
(b) Secretary in charge of Consumer Affairs of the State Government –
Member;
(c) Nominee of the Chief Secretary of the State—Member.
The Secretary in charge of Consumer Affairs of the State Government
shall be the convener of the Selection Committee.
Jurisdiction:
Section 34. Jurisdiction of District Commission
(1) “Subject to the other provisions of this Act, the District Commission
shall have jurisdiction to entertain complaints where the value of the
goods or services paid as consideration does not exceed one crore
rupees:
Provided that where the Central Government deems it necessary so to
do, it may prescribe such other value, as it deems fit.
(2) A complaint shall be instituted in a District Commission within the
local limits of whose jurisdiction,—
(a) the opposite party or each of the opposite parties, where there are
more than one, at the time of the institution of the complaint, ordinarily
resides or carries on business or has a branch office or personally
works for gain; or
(b) any of the opposite parties, where there are more than one, at the time
of the institution of the complaint, actually and voluntarily resides, or
carries on business or has a branch office, or personally works for
gain, provided that in such case the permission of the District
Commission is given; or
(c) the cause of action, wholly or in part, arises; or
(d) the complainant resides or personally works for gain.
(3) The District Commission shall ordinarily function in the district
headquarters and may perform its functions at such other place in the
district, as the State Government may, in consultation with the State
Commission, notify in the Official Gazette from time to time.”
State Consumer Disputes Redressal Commission
Related sections:
Section 42. Establishment of State Consumer Disputes Redressal
Commission.
(1) “The State Government shall, by notification, establish a State
Consumer Disputes Redressal Commission, to be known as the State
Commission, in the State.
(2) The State Commission shall ordinarily function at the State capital and
perform its functions at such other places as the State Government
may in consultation with the State Commission notify in the Official
Gazette:
Provided that the State Government may, by notification, establish
regional benches of the State Commission, at such places, as it deems
fit.
(3) Each State Commission shall consist of—
(b) not less than four or not more than such number of members as may be
prescribed in consultation with the Central Government.”
Composition:
The State government establishes a State commission, under section
42(1) of the Act, in the state through the notification and can even
establish regional branches if it seems fit. Each State Commission shall
consist of:
c. one President and
d. no less than four members and a maximum of as many members as is
required.
There shall be a minimum of one Female member.
A bench of the State Commission must consist of a President and one
member or more if the president deems it fit.
Qualifications:
According to Section 43, the Central Government may, by notification,
make rules to provide for the qualification for appointment, method of
recruitment, procedure of appointment, term of office, resignation and
removal of the President and members of the State Commission.
the State Commission and District Commission) Rules, 2020, A
person shall not be qualified for appointment as President, unless he
is, or has been, a Judge of the High Court;
(1) A person shall not be qualified for appointment as a member unless he
is of not less than forty years of age and possesses–
(a) an experience of at least ten years as presiding officer of a district
court or of any tribunal at equivalent level or combined service as
such in the district court and tribunal:
Provided that not more than fifty percent of such members shall be
appointed; or
(b) a bachelor’s degree from a recognised university and is a person of
ability, integrity and standing, and has special knowledge and
professional experience of not less than twenty years in consumer
affairs, law, public affairs, administration, economics, commerce,
industry, finance, management, engineering, technology, public health
or medicine:
(2) At least one member or the President of the State Commission shall be
a woman.
shall be disqualified for appointment as the President or a member of a
State Commission or District Commission if he—
(6) has been convicted and sentenced to imprisonment for an offence
which involves moral turpitude; or
(7) has been adjudged to be insolvent; or
(8) is of unsound mind and stands so declared by a competent court; or
(9) has been removed or dismissed from the service of the State
Government or Central Government or a body corporate owned or
controlled by such Government; or
(10) has, in the opinion of the State Government, such financial or other
interest as is likely to prejudicially affect his functions as the President
or a member.
Jurisdiction:
According to section 47, the State Commission has the jurisdiction to
entertain:
i. complaints where the value of the goods or services paid as
consideration, exceeds rupees one crore but does not exceed rupees
ten crores:
do, it may prescribe such other value, as it deems fit;
ii. complaints against unfair contracts, where the value of goods or
services paid as consideration does not exceed ten crore rupees;
iii. appeals against the orders of any District Commission within the State;
Apart from that, it also has the jurisdiction to call for the records and
pass appropriate orders in any consumer dispute which is pending
before or has been decided by any District Commission within the
State, where it appears to the State Commission that such District
Commission has exercised a jurisdiction not vested in it by law, or has
failed to exercise a jurisdiction so vested or has acted in exercise of its
jurisdiction illegally or with material irregularity. (Revisional Power)
Tenure:
According to Rule 10 of Consumer Protection (Qualification for
the State Commission and District Commission) Rules, 2020, the
President and every member of the State Commission and the District
Commission shall hold office for a term of four years or up to the age of
sixty-five years, whichever is earlier and shall be eligible for
reappointment for another term of four years subject to the age limit of
sixty-five years, and such reappointment is made on the basis of the
recommendation of the Selection Committee.
Rule 7 provides that, the President or any member may, by writing under his
hand addressed to the State Government, resign his office at any time.
Rule 8 says that, The State Government shall remove from office any President
or member, who—
(a) has been adjudged as an insolvent; or
(b) has been convicted of an offence which involves moral turpitude; or
(c) has become physically or mentally incapable of acting as such member;
or
(d) has acquired such financial or other interest as is likely to affect
prejudicially his functions as a member; or
(e) has so abused his position as to render his continuance in office
prejudicial to public interest.
Process of Appointment:
Rule 6 of Consumer Protection (Qualification for appointment, method
of recruitment, procedure of appointment, term of office, resignation
and removal of the President and members of the State Commission
and District Commission) Rules, 2020, saya that, the President and
members of the State Commission and the District Commission shall
be appointed by the State Government on the recommendation of a
Selection Committee, consisting of the following persons, namely: –
(a) Chief Justice of the High Court or any Judge of the High Court
nominated by him- Chairperson;
(b) Secretary in charge of Consumer Affairs of the State Government –
Member;
(c) Nominee of the Chief Secretary of the State—Member.
The Secretary in charge of Consumer Affairs of the State Government
shall be the convener of the Selection Committee.
Other Provisions:
State Commission disposes of the case in the exact same method as
the District Commission and also holds the power to review its own
cases. [Section 47(1)(b)]
If aggrieved by the decision, the aggrieved party may prefer an appeal
to the National Commission within 30 days of receiving the order from
the state commission. If sufficient reason is shown then the national
commission can also entertain the plea after the thirty days. [Section
51]
The national commission shall not listen to an appeal if the person
who has to pay a particular amount from the order of the state
commission, has not paid at least 50% of the amount ordered to be
paid.[Section 51]
The appeal must be dealt with expeditiously and endeavours must be
made to dispose of the appeal within 90 days from its date of
admission.[Section 52]
The State Commission also has the power to shift proceedings from
one district commission to another under section 48. The State
Commission can do that on its own cognizance or through an application
filed by the parties. But it must be to serve the purpose of justice.
National Commission
Section 53. Establishment of National Consumer Disputes Redressal
Commission
(3) “The Central Government shall, by notification, establish a National
Consumer Disputes Redressal Commission, to be known as the National
Commission.
(4) The National Commission shall ordinarily function at the National
Capital Region and perform its functions at such other places as the
Central Government may in consultation with the National Commission
notify in the Official Gazette:
Provided that the Central Government may, by notification, establish
regional Benches of the National Commission, at such places, as it
deems fit.”
Under Section 53(1), the Central Government establishes a National
commission through notification. The main National Commission
operates on the national capital region but the Central government can
establish regional branches through notification. The National
Commission must have one president and at least 4 members with the
maximum being whatever is prescribed by the national government.
Composition:
According to section 54, The National Commission shall consist of—
(b) not less than four and not more than such number of members as may
be prescribed.
Rule 15 of Consumer (Consumer Dispute Redressal Commission) Rules,
2020 provides that the National Commission shall consist of a President
and not less than four members and not more than eleven members, of
whom at least one member shall be a woman.
Bench:
Section 58(2) provides that, the jurisdiction, powers and authority of
the National Commission may be exercised by Benches thereof and a
Bench may be constituted by the President with one or more members
as he may deem fit:
Provided that the senior-most member of the Bench shall preside over
the Bench
Qualifications:
According to section 55(1) the Central Government may, by
notification, make rules to provide for qualifications, appointment, term
of office, salaries and allowances, resignation, removal and other terms
and conditions of service of the President and members of the National
Commission.
Tenure:
It is provided under Section 55 that President and members of the
National Commission shall hold office for such term as specified in the
rules made by the Central Government but not exceeding five years
from the date on which he enters upon his office and shall be eligible
for re-appointment:
Provided further that no President or members shall hold office as
such after he has attained such age as specified in the rules made by
the Central Government which shall not exceed,—
(a) in the case of the President, the age of seventy years;
(b) in the case of any other member, the age of sixty-seven years.
Jurisdiction:
The National Commission has jurisdiction, under section 58 of the
Act:
(a) to entertain:
(i) complaints where the value of the goods or services paid as
consideration exceeds rupees ten crores:
do, it may prescribe such other value, as it deems fit;
(ii) complaints against unfair contracts, where the value of goods or
services paid as consideration exceeds ten crore rupees;
(iii) appeals against the orders of any State Commission;
(iv) appeals against the orders of the Central Authority; and
(b) to call for the records and pass appropriate orders in any consumer
dispute which is pending before or has been decided by any State
Commission where it appears to the National Commission that such
State Commission has exercised a jurisdiction not vested in it by law,
or has failed to exercise a jurisdiction so vested, or has acted in the
exercise of its jurisdiction illegally or with material irregularity.
If a person is aggrieved by the decision then an appeal does lie to the
Supreme Court if made within thirty days of receiving the order.
Revision:
Section 58(1)(b) empowers the national Commission to call for the records
and pass appropriate orders in any consumer dispute which is pending
before or has been decided by any State Commission where it appears
to the National Commission that such State Commission has exercised
a jurisdiction not vested in it by law, or has failed to exercise a
jurisdiction so vested, or has acted in the exercise of its jurisdiction
illegally or with material irregularity.
In Govind Kumar Naag v. Ranjit Kumar Banerjee, it was held by
Calcutta High Court that National Commission has power of revision.
In Central Bank of India v. Jagveer Singh, it was held by Supreme
Court that if any revision petition is submitted after the period specified
and there is sufficient reason for delay, then such revision petition can
be accepted.
Review:
Section 60, provides that the National Commission shall have the power to
review any of the order passed by it if there is an error apparent on the
face of the record, either of its own motion or on an application made
by any of the parties within thirty days of such order.
Power to set aside ex parte orders:
Section 61 provides that, where an order is passed by the National Commission
ex parte, the aggrieved party may make an application to the
Commission for setting aside such order.
Q. 31. Write short on:
1. Limitation period
2. Mediation
3. Product Liability
Ans. Limitation Period
Section 69. Limitation period.—
(1) “The District Commission, the State Commission or the National
Commission shall not admit a complaint unless it is filed within two
years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint
may be entertained after the period specified in sub-section (1), if the
complainant satisfies the District Commission, the State Commission
or the National Commission, as the case may be, that he had sufficient
cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the District
Commission or the State Commission or the National Commission, as
the case may be, records its reasons for condoning such delay.”
Hence, in view of the aforesaid, the time period for filing a complaint
for a consumer from the date of violation of a right is 2 years. The law
in this regard is laid down under Section 69 of the Consumer Protection
Act, 2019. However, the Hon’ble Supreme Court of India, in a landmark
judgement, on 07.04.2017 in the matter of National Insurance Company
Ltd. vs. Hindustan Safety Glass Works Ltd. (MANU/SC/0390/2017),
has held that where a supplier is responsible for causing a delay in the
settlement of the consumer’s claim, the consumer shall be entitled
under law to file a complaint in the Consumer Court even after the
expiry of the period of two years.
Mediation
The Consumer Protection Act, 2019 has attempted to award redressal
to the consumers in a much expeditious and efficient manner. For this
purpose, the process of Mediation is introduced under chapter V of
the Consumer Protection Act, 2019. Under this provision, the parties
can mediate and solve their matters before approaching the commission.
Upon successful mediation, the terms are converted into a written
form.
According to Section 74, the State Government shall establish, by
notification, a consumer mediation cell to be attached to each of the
District Commissions and the State Commissions of that State. The
Central Government shall establish, by notification, a consumer
mediation cell to be attached to the National Commission and each of
the regional Benches.
Under the Act, 2019 there was a dire need to create new regulations in
order to make mediation of consumer disputes more effective. Under
these regulations, the National Consumer Disputes Redressal
Commission has laid down certain qualifications, training, and
procedure thereon for the purpose of the empanelment of mediators,
under Section 75.
Consumer Protection Mediation Rules, 2020
The recent development to the consumer mediation under the Act was
when the union government notified the Consumer Protection
(Mediation) Rules, 2020 on 15th July 2020. The aforesaid mentioned
rules provide a list of matters that cannot be submitted or referred to
mediation under any circumstances. The list is as follows: -
1. The matters relating to medical negligence resulting in grievous injury
or death.
2. Offenses relating to defaults committed, for which applications of
compounding of offenses has been filed by one or more parties.
3. Cases involving serious allegations of fraud, fabrication of documents,
forgery, impersonation, and coercion.
4. Cases relating to criminal prosecution and of non-compoundable
offenses.
5. Cases involving public interest litigation.
6. In any case other than those mentioned under this rule, the Commission
before which the suit is lispendens may choose to not refer the dispute
for mediation if it appears to the Commission that no scope of a
settlement exist which may be acceptable to the parties or else
mediation might not be an effective or appropriate tool having regard
to the circumstances of each case.
Mediation is the need of the hour for the speedy and efficient disposal
of consumer cases and it is commendable looking at the way the
government has a clear plan to employ mediators who can solve
disputes, thereby, adding less burden on the judiciary.
On the other hand, mediation also creates an alternative source of
revenue for people who can also use it as an alternative source of
income and is, therefore, a welcome step/move towards the roster of
jobs in the recent times of uncertainty.
The new Consumer Protection Act, 2019 enables a consumer to file
complaints electronically as well as file complaints in consumer
commissions that has jurisdiction over the place of his/her (i.e.
Complainant) residence, thereon, nullifying the previous practice
adopted under the Act (i.e. A case can only be filed at the place of
purchase or where the seller has its registered office). However, the
time limit permitted under the Act for the purpose of completion of
mediation is 30 days (Section 79).
Manner for Initiation of Mediation Proceedings
At the very outset, a written request has to be made to the concerned
authorities (i.e. District/State/National Commission) as the case may
be (Section 79). The request should contain the following heads:
1. A brief explanation of the nature of the dispute has to be provided,
thereafter, the estimated value of any disputed amount and any relief
or claim sought by the requesting party needs to be mentioned.
2. The names and address (inclusive of e-mail address) and contact
numbers of all the parties (inclusive of any legal or other representative
involved) to the dispute has to be mentioned.
3. Thereafter, a proposal for the appointment of a mediator, including
suggested qualifications such as: language, skills or mediation
experience on the subject matter has to be mentioned.
Notably, the party or parties initiating the proceedings or filing the
request shall simultaneously have to send a copy of the request to all
other parties, until and unless the request has been made jointly by all
the parties. Such a request has to be accompanied by a fee amounting
to Rs. 500/-.
Appointment of Mediator
As far as the appointment of the mediator is concerned under the Act,
the parties to the dispute will have to mutually decide the same (i.e.
sole mediator). In case, the parties are unable to reach a consensus as
to who shall act as the sole mediator, the concerned commission shall
nominate/appoint the mediator, as it deems fit in its own wisdom.
Role of Mediator
It is of utmost importance to note and discuss the role of mediator. The
mediator has to try to facilitate a voluntary resolution of the dispute
between the parties, and communicate the view of each party to the
other, assist them in identifying the issues, reducing the clashes,
glorifying the priorities, enunciating on the areas of compromise and
lastly, generating options in an attempt to solve the disputes, and
constantly pressing on the point that is the duty/responsibility of the
parties to make a decision and that he shall not impose any terms of
settlement on the parties.
Product Liability
Sections 82 to 87, appearing in Chapter VI of Consumer Protection
Act 2019, provide an all-encompassing scheme which would apply to
every claim for compensation under a product liability action.
Consumer Protection Act 2019, expressly or by necessary implication,
does not indicate that these new provisions of product liability will
also apply to product liability actions already pending before various
consumer fora. However, since these provisions create new rights and
liabilities, there is a presumption in law that they are prospective in
operation.
The Act defines product liability as, ”The responsibility of a product
manufacturer or product seller, of any product or service, to compensate
for any harm caused to a consumer by such defective product
manufactured or sold or by deficiency in services relating thereto”.
A product liability action can be filed against a ‘product manufacturer’
or a ‘product service provider’ or a ‘product seller’, as the case may
be. CPA 2019 defines each of these expressions in very wide terms to
bring within their fold every possible aspect of a product liability claim.
CPA 2019 also delineates the situations in which they will be held
liable.
Few such situations are summarized below. While the situations
envisaged under the CPA 2019 are quite exhaustive, there is nothing to
indicate that these would be the only situations where liability will
arise. It, however, remains to be seen how the courts will interpret
these provisions.
Liability of a product manufacturer
A product manufacturer shall be liable, if –
(i) the product contains a manufacturing defect; or
(ii) the product is defective in design; or
(iii) there is a deviation from manufacturing specifications; or
(iv) the product does not conform to the express warranty; or
(v) the product fails to contain adequate instructions of correct usage to
prevent harm or any warning regarding improper or incorrect usage.
Liability of a product seller
A product seller (who is not a product manufacturer) shall be liable, if
–
(i) he has exercised substantial control over the designing, testing,
manufacturing, packaging or labelling of a product that caused harm;
or
(ii) he has altered or modified the product and such alteration or
modification was the substantial factor in causing the harm; or
(iii) he has made an express warranty of a product independent of any
express warranty made by a manufacturer and the product failed to
conform to such warranty; or
(iv) the product has been sold by him and the identity of product
manufacturer of such product is not known, or if known, the service of
notice or process or warrant cannot be effected on him or he is not
subject to the law which is in force in India or the order, if any, passed
or to be passed cannot be enforced against him; or
(v) he failed to exercise reasonable care in assembling, inspecting or
maintaining such product.
Liability of a product service provider
A product service provider shall be liable, if –
(i) the service provided by him was faulty in quality, nature or manner of
performance; or
(ii) there was an act of omission or commission or negligence or conscious
withholding of any information which caused harm; or
(iii) the service provider did not issue adequate instructions or warnings
to prevent any harm; or
(iv) the service did not conform to express warranty or the terms and
conditions of the contract.
Exceptions to a product liability action
CPA 2019 also envisages some specific defences to a product liability
action. Few of the defences are summarized below:
(i) The product was misused, altered or modified at the time of
harm. Curiously, as per this exception, there cannot be a product liability
action against a product seller. This is somewhat intriguing, since this
exception should equally apply to a product manufacturer or a product
service provider.
(ii) In any product liability action based on the failure to provide adequate
warnings or instructions, the product manufacturer will not be liable,
if-
a. The product was purchased by an employer for use at the workplace
and the product manufacturer had provided warnings or instructions
to the employer; or
b. The product was sold as a component or material to be used in another
product and necessary warnings or instructions were given by the
product manufacturer to the purchaser of such component or material,
but the harm was caused to the complainant by use of the end product
in which such component or material was used; or
c. The product ought to have been used only by or under the supervision
of an expert; or
d. The complainant, while using the product, was under the influence of
alcohol etc.
(iii) A product manufacturer will not be liable for failure to instruct or warn
about a danger which is obvious or commonly known to the user of
such product.
MOTOR VEHICLE ACT (with amendment of 2019)
Q.32. What do you mean by ‘Driving Licence’? What provisions have been
made regarding qualification for driving licence, restrictions and
suspension of driving licence under the Motor Vehicle Act, 1988?
Ans. The Central Government deals with the subject of motor vehicles
separately. The Motor Vehicle Laws in India are dealt with by the
Ministry of Road Transport and Highways. The Motor Vehicles Act of
1988,is comprehensive legislation. The Bill received the assent of the
President on October 14th, 1988. The latest amendment was made in
2019. Passed in the year 1988, it regulates almost all road transport
vehicles. It can be considered as a mixture of early legislation and case
laws. It is mandatory under the Motor Vehicles Act to have a valid
driving license and it should be registered under the Act. Under the
Act, the civil proceedings happen in the Claims Tribunal and criminal
proceedings in Magistrate.
The changes in road transport technology, the pattern of passengers,
developments in the road network in the country are all taken into
consideration by this Act. There are various concepts that come under
this Act. Chapter 11 provides for insurance of motor vehicles against
third party risk and Chapter 12 talks about the constitution of the
Claims Tribunal and adjudication of claim-related matters.
LICENSING UNDER THE MOTOR VEHICLES ACT,1988
A driving license in India is an essential document for car/bike owners
and drivers. It is a legal document that permits one to drive a specified
vehicle. Driving any vehicle without a license can land you in the zone
of troubles, including monetary compensations and disqualifications.
It is the most important document which a car driver should own. In
case, you are pulled over by a police officer, the first and foremost
thing he will ask is to show your license. Without it, there is no right to
operate a vehicle on public roadways. This is a universally accepted
form of personal identification because it contains contact info and a
picture for identification. In case, the driver met with an accident, the
first thing we can do is to find the license to identify. The name and
address will help the people to locate and contact family members to
inform them and the hospital staff can use this information on the
driver’s license to begin the admission process.
There are various sections in this Act that deals with licensing. This
article primarily focuses on the driver’s license. The relevant sections
of this discussion are Section 2(10) and Section 2(19), Section 3, Section
8 to 10, Section 15, Section 16, Section 19, Section 21, and Section 22
and at last Section 181.
Related Provisions under the Act:
1. Section 2(10)- Section 2(10) defines the term ‘drivinglicense’ which
means the license issued by a competent authority under Chapter II
authorizing the person specified therein to drive, otherwise than as a
learner, a motor vehicle or a motor vehicle of any specified class or
description.
Section 2(19)- ‘learner’s license’ means the license issued by a
competent authority under Chapter II authorizing the person specified
therein to drive as a learner, a motor vehicle or a motor vehicle of any
specified class or description. These are the basic sections that make
us understand the meaning of the term ‘license’ and ‘learners’ license’
2. Section 3- From this section begins Chapter II titled ‘Licensing of
Drivers of Motor Vehicles’. Section 3(1) states that no person shall
drive a motor vehicle in any public place unless he holds an effective
driving licence issued to him authorizing him to drive the vehicle.
Whereas clause (2) states that the conditions subject to which (1)
shall not apply to a person receiving instructions in driving a motor
vehicle shall be such as may be prescribed by the Central Government.
So we see that clause (1) provides for the need to have a license to
drive a motor vehicle and gives special authorization to drive a transport
vehicle. It is said that what vehicle is specified in the license, only that
vehicle can be driven. The next clause empowers the Central
Government to prescribe conditions subject to which a vehicle may be
driven by a person receiving instructions in driving.
3. Section 8- This section deals with the grant of a learner’s license.
Learner’s license is issued during the course of learning to drive the
car. We have to pass the learners’ test to get this license. After that, we
will have another test which should be taken within 6 months after
which we will get a valid driving license.
According to this Act, a person under the age of 18 years shall not
drive a motor vehicle at any public place and no learner’s license or
driving license shall be issued to any person to drive a vehicle of the
class to which he has made an application unless he is eligible to drive
that class of vehicle. According to clause (1) if section 8, Any person
who is not disqualified under section 4 for driving a motor vehicle and
who is not for the time being disqualified for holding or obtaining a
driving license may apply to the licensing authority having jurisdiction
in the area-
a. in which he resides and
b. in which the driving school or establishment where he intends to receive
instruction in driving a motor vehicle is situated.
Theclause (2) talks about the application for a learner’s license. Every
application shall be in such form and shall be accompanied by such
documents and with such fee as may be prescribed by the Central
Government.
Clause (3) says that, the need for a medical certificate for application
is stated in the next clause.
Every application shall be in such form and shall be accompanied by a
medical certificate in the form prescribed by the Central Government
and signed by a registered medical practitioner.
Clause (4) provides, if the applicant suffers from any disease or disability
which is likely to cause the driving of the specified vehicle as mentioned
in the license, to be a source of danger to the general public or
passengers, the licensing authority shall refuse to issue such a license.”
4. Section 9- This section deals with the grant of a driving license. The
first and second clauses are similar to that of section 8. The third
clause is added through the 1994 Amendment. It states that if the
applicant passes the test prescribed by the Central Government, then
the driving license may be issued provided that such test is not
necessary if the applicant produces proof to show that he or she had
previously held a license to drive that class of a vehicle and the period
or gap between the date of application and date of expiry does not
exceed 5 years.
5. Section 10- A learner’s license and driving license shall contain
information as prescribed by the Central Government. But if a driving
license is issued under Section 18, then the situation changes. Section
18 talks about the licenses to drive motor vehicles belonging to the
Central Government. In such situations, it shall specify the class or
description of the vehicle which the driver is entitled to drive and the
period for which he is entitled. The authority which issues this license
shall request the State Government to furnish information respecting
the person as that Government may at any time require. So according
to Section 10, both learners’ license and driving license should express
the vehicle which he is entitled to drive, namely, Motorcycle with gear
and without gear, the invalid carriage which is usually referred to the
vehicles used by disabled people, light motor vehicle and motor vehicle
of a specified description.
6. Section 15- This is one of the most important sections regarding
licensing. It talks about the renewal of the driving licenses. The
licensing authority should receive the application for renewal of the
license within 30 days after its expiry. If the applicant has attained
forty years of age, a medical certificate should be attached along with
the application. The second clause states that the application for
renewal should be made in such form as prescribed by the Central
Government. The fee payable for the renewal is as prescribed by the
Central Government. If the application is given more than five years
after the expiry of the license, then the licensing authority has the
option to refuse the renewal of the driving license. But if the applicant
passes the test of competence as referred under section 9, the renewal
can take place. According to the last clause of this section, if the
issuing authority is not the one who renewed the driving license, then
the applicant shall intimate the fact of renewal to the authority to the
issuing authority.
7. Section 16- The licensing authority can at any time revoke a driving
license on grounds of disease or disability. The medical certificate in
the same form as prescribed under section 8 must be attached if the
licensing authority has reasonable grounds to believe that the holder
of the license is, by virtue of any disease or disability, unfit to drive a
motor vehicle and the authority which revoked it, is not the issuing
authority, it shall bring to notice this fact of revocation to the issuing
authority.
8. Section 19- This section is of utmost importance as it states the powers
of the licensing authority to disqualify from holding a driving license.
Disqualifying a person means he or she is not permitted from driving
or possessing a valid license. It is like a form of suspension. If the
authority knows that the holder of the driving license is a criminal or a
habitual drunkard, it can disqualify the license. The license can also be
disqualified, if he has obtained the said license by fraud or
misrepresentation, has committed an act likely to cause nuisance or
danger to the public as said by the Central Government, or is a habitual
addict to any narcotic drug as mentioned under the Narcotic Drugs
and Psychotropic Substances Act. The main difference of this section
from Section 20 is that the former is a disqualification by the licensing
authority whereas the latter is by the courts. ForSection 20, the reasons
for disqualification can be from the evidence and hearing of parties. It
is a comprehensive evaluation of all courts.
9. Section 181- Chapter 13 of the Motor Vehicles Act, 1988 deals with
Offences, Penalties, and Procedures. According to Section 181 if one
drives a vehicle in contravention to these sections then he/she shall
be punished with imprisonment for a term which may extend to three
months or a fine which may extend to five hundred rupees.
Thus we see that this section checks whether people are driving an
authorized vehicle with a valid driving license. Moreover, it discourages
minors from driving vehicles without a valid learner’s license.
10. Section 182- This is the last section; it also comes under the same
chapter. This section talks about offenses relating to licenses. It states
that if a person holds a license which is issued free of endorsement
and he applies for a driving license without disclosing the endorsement
made on the license previously held by him. The punishment prescribed
is imprisonment for a term which may extend to three months or with a
fine which may extend to five hundred rupees.
CHANGES BROUGHTABOUT IN THE AMENDED ACT
The Motor Vehicles Act, 1988 was amended on 9th August 2019. The
new Rules wanted to prevent individuals from violating traffic rules.
So for this purpose, they have introduced heavy fines for over-
speeding, drunken driving, and driving without a valid license.
There were changes in few sections of the 1988 Act. Section 8 which
talks about the grant of learner’s license have been modified. Now, an
eligible person can apply for this license in any of the licensing
authority of the state. The fee and other expenses can be paid through
electronic media and also the issuance of the learner’s license in
electronic form. Also, the condition of having ‘minimum educational
qualification as may be prescribed by the Central Government’ for
obtaining a license has been removed.When the applicant does not
pass the driving test even after doing it 3 times, in addition to his
disqualification to re-appear for the test before the expiry of a period of
sixty days from the date of the last test. For that, the person should
complete a remedial driver training course from any school or
establishment. Then, Section 15 talks about the renewal of the driving
license. The renewal is made either one year prior to the date of expiry
or within one year after the date of expiry. Furthermore, if the application
is made one year after the driving license has expired, the renewal shall
be refused. The power of licensing authority to disqualify from holding
a driving license or revoke the license is mentioned in Section 19. Even
the fine for driving without a valid license is increased from Rs.500 to
Rs.5000. (Section 181) and fine for unauthorized use of vehicles without
a license is increased from Rs.1000 to Rs.5000.
CONCLUSION
In the present world, we see there is an increasing number of a road
accident due to excessive speed, reckless driving, and avoidance of
traffic rules. It is mainly due to growing urbanization and rising incomes.
The Motor Vehicles (Amendment) Bill, 2019 came up to address various
issues like vehicles’ condition, road safety, and compensation for
victims of road accidents. The Standing Committee on Transport had
observed that the majority of accidents are being caused due to the
driver’s fault. It might be also due to any defect of the vehicle. By
bringing hefty fines and penalties and in extreme situations canceling
their license, they seek to reduce accidents and provide a safe road
environment for everyone. Now what is lying ahead should be looked
into. Electronic vehicles might replace these fuel vehicles. Changes
can also be seen in ‘licensing’ since it is a vital part of one’s wallet.
More states will start supplementing digital with plastic. That means
billions of people will be able to show smartphones rather than a plastic
card to prove they are eligible to drive. This is a form of an advantage
since the people do not want to carry along with them thousands of
documents and this physical license card.
Q.33. What is Insurance against third party risk? Explain the liability of
insurer in such insurance? (Amendment 2019)
Ans. There are two quite different kinds of insurance involved in the damages
system. One is Third Party liability insurance, which is just called
liability insurance by insurance companies and the other one is first
party insurance.
A third party insurance policy is a policy under which the insurance
company agrees to indemnify the insured person, if he is sued or held
legally liable for injuries or damage done to a third party. The insured
is one party, the insurance company is the second party, and the person
you (the insured) injure who claims damages against you is the third
party.
As per the amendment of 2019
section 45 defines:
45(f)”policy of insurance” includes certificate of insurance;
45 (c) “certificate of insurance” means a certificate issued by an
authorised insurer in pursuance of section 147 and includes a cover
note complying with such requirements as may be prescribed, and
where more than one certificate has been issued in connection with a
policy, or where a copy of a certificate has been issued, all those
certificates or that copy, as the case may be;
45(i) “third party” includes the Government, the driver and any other
co-worker on a transport vehicle.
Necessity for insurance against third party risk
146. Necessity for insurance against third party risks. –
(1) “ No person shall use, except as a passenger, or cause or allow any
other person to use, a motor vehicle in a public place, unless there is in
force, in relation to the use of the vehicle by that person or that other
person, as the case may be, a policy of insurance complying with the
requirements of this Chapter:
Provided that in the case of a vehicle carrying, or meant to carry,
dangerous or hazardous goods, there shall also be a policy of insurance
under the Public Liability Insurance Act, 1991 (6 of 1991).
Explanation.—For the purposes of this sub-section, a person driving a
motor vehicle merely as a paid employee, while there is in relation to
the use of the vehicle no such policy in force as is required by this
sub-section, shall not be deemed to act in contravention of the sub-
section unless he knows or has reason to believe that there is no such
policy in force.
(2) The provisions of sub-section (1) shall not apply to any vehicle owned
by the Central Government or a State Government and used for
purposes not connected with any commercial enterprise.
(1) The appropriate Government may, by order, exempt from the operation
of sub-section (1), any vehicle owned by any of the following
authorities, namely:—
(a) the Central Government or a State Government, if the vehicle is used
for purposes connected with any commercial enterprise;
(b) any local authority;
(c) any State Transport Undertaking:
Provided that no such order shall be made in relation to any such
authority unless a fund has been established and is maintained by that
authority in such manner as may be prescribed by appropriate
Government.
Explanation.—For the purposes of this sub-section, “appropriate
Government” means the Central Government or a State Government,
as the case may be, and—
(i) in relation to any corporation or company owned by the Central
Government or any State Government, means the Central Government
or that State Government;
(ii) in relation to any corporation or company owned by the Central
Government and one or more State Governments, means the Central
Government;
(iii) in relation to any other State Transport Undertaking or any local
authority, means that Government which has control over that
undertaking or authority.”
The Amendment Act 2019, states that there exists no cap on liability
for insurers. In fact, drivers’ attendants are now to be included in third
party insurance. There would now be up to ten times increase in
compensation by insurance companies. Provisions have been made to
ensure that if the victim’s family agrees to compensation of five lakhs,
the family gets it within a month. The process of claiming compensation
has also been simplified. The minimum compensation for hit and run
cases and cases where the grievous injury is caused has also been
increased.
Requirements of policies and limits of liability
Section 147 Requirement of policies and limits of liability. –
(4) “In order to comply with the requirements of this Chapter, a policy of
insurance must be a policy which—
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the
extent specified in sub-section (2)—
(i) against any liability which may be incurred by him in respect of the
death of or bodily injury to any person including owner of the goods
or his authorised representative carried in the motor vehicle or damage
to any property of a third party caused by or arising out of the use of
the motor vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a transport
vehicle, except gratuitous passengers of a goods vehicle, caused by
or arising out of the use of the motor vehicle in a public place.
Explanation.—For the removal of doubts, it is hereby clarified that the death
of or bodily injury to any person or damage to any property of a third
party shall be deemed to have been caused by or to have arisen out of,
the use of a vehicle in a public place, notwithstanding that the person
who is dead or injured or the property which is damaged was not in a
public place at the time of the accident, if the act or omission which led
to the accident occurred in a public place.
(5) Notwithstanding anything contained under any other law for the time
being in force, for the purposes of third party insurance related to
either death of a person or grievous hurt to a person, the Central
Government shall prescribe a base premium and the liability of an
insurer in relation to such premium for an insurance policy under sub-
section (1) in consultation with the Insurance Regulatory and
Development Authority.
(6) A policy shall be of no effect for the purposes of this Chapter unless
and until there is issued by the insurer in favour of the person by
whom the policy is effected, a certificate of insurance in the prescribed
form and containing the prescribed particulars of any condition subject
to which the policy is issued and of any other prescribed matters; and
different forms, particulars and matters may be prescribed in different
cases.
(7) Notwithstanding anything contained in this Act, a policy of Insurance
issued before the commencement of the Motor Vehicles (Amendment)
Act, 2019 shall be continued on the existing terms under the contract
and the provisions of this Act shall apply as if this Act had not been
amended by the said Act.
(8) Where a cover note issued by the insurer under the provisions of this
Chapter or the rules or regulations made thereunder is not followed by
a policy of insurance within the specified time, the insurer shall, within
seven days of the expiry of the period of the validity of the cover note,
notify the fact to the registering authority or to such other authority as
the State Government may prescribe.
(9) Notwithstanding anything contained in any other law for the time
being in force, an insurer issuing a policy of insurance under this
section shall be liable to indemnify the person or classes of persons
specified in the policy in respect of any liability which the policy
purports to cover in the case of that person or those classes of persons.”
Q.34. State the salient features of the Motor Vehicle Act, 2019.
Or
Explain the main characteristics of Motor Vehicle Act, 2019.
Ans.Motor Vehicles (Amendment) Act, 2019
The Motor Vehicles (Amendment) Act, 2019, came into effect on 1st
September 2019 and made rules more stringent for offenders, therefore
creating a more rigorous punishment for them. This amendment has
made it difficult for those in the habit of breaking traffic rules. Some
examples of the change that have been brought about are- imprisonment
of up to a month for driving errors and a provision for imprisonment of
up to 6 months for accidents caused by rash drivers etc.
Salient Feature of The Amendment
The important features of the Motor Vehicles (Amendment) Act, 2019
are as under-
Road And Environment Health
In case the vehicles are not fit to be used on roads as they cause
environmental damage and hence harm the health of others, they have
to be returned to the manufacturers of the respective vehicles. The
manufacturers through this amendment are directed to take back these
vehicles and have the choice to either reimburse or replace the defective
vehicle with one of similar make.
Road Safety
This Amendment vehemently propagates the increase in the penalty
for traffic rule offenders. This is done in the hope that this increased
fine would force the drivers to be more alert and careful on the roads.
This amendment provides more stringent rules for offences like juvenile
driving, drunken driving, over speeding, overloading and driving
without a license. Stricter punishment for those driving without helmets
is also made in this Amendment.
Fitness Of Vehicle
This Amendment has provisions mandating the automated testing of
vehicles for doing a fitness check. This would help improve road safety
by removing from the traffic unfit vehicles. This Amendment makes
specific provision for those who deliberately violate environment and
safety regulations.
This Amendment promoted certification of automobiles after they were
successfully tested. The regulation of this process of certification was
also proposed via this Act. In addition to this, Amendment of 2019
aims at setting testing standards and bringing the agencies issuing
automotive approvals under the Motor Vehicles Act.
National Road Safety Board
Another major feature of this Act is the provision for setting up of a
National Road Safety Board under the central government. This board
is supposed to advise governments of all the states in addition to the
central government on matters of traffic management and road safety.
Compensation For Victims Of Road Accidents
Provisions have been made for cashless treatment of victims of road
accidents, during the golden hour. Golden hour is the time period up to
one hour from the time of the accident. This is the time period in which
the chances of survival if proper treatment is given, are maximum. An
effort to make this whole process cashless is also made by this Act.
Protection Of Good Samaritan
This Act defines a Samaritan as a person who stands up for helping
out a road accident victim immediately after such mishappening takes
place. It is often seen that these generous people are the ones who
end up being the victim of harassment for their acts of kindness. This
Amendment provides for these people too. It ensures that they are not
harmed in any manner whatsoever. It also protects them from any kind
of civil or criminal proceedings, even in cases where they negligently
cause the death of the victim.
Compulsory Insurance
This Act instructs the union government to establish a Motor Vehicles
Accident Fund providing compulsory insurance to all drivers of India.
Taxi Aggregators
These are defined by the Bill as the intermediaries using a digital
platform for connecting drivers to passengers. These according to
these new provisions, are to be provided with licenses from the
governments of the respective states. Also, they are instructed to
follow the rules and regulations of the Information and Technology
Act, 2000.
National Transportation Policy
This Act promotes the idea of the formation of a National Transportation
Policy. This is to be made by the Central government in collaboration
with the governments of all the states. This policy would structure a
framework for road transport. In addition to this, priorities for the
transport system would be specified.
Training of drivers
This Amendment strengthens the process of driving training. This
would lead to a faster issuance of licenses. This Amendment comes in
the wake of a shortage of commercial drivers in the country. It
propagates the opening up of more driver training institutes for ensuring
the production of better commercial drivers in India.
National Register for Driving licence and Vehicle Registration
This Amendment puts forth harmonisation and integration of issuance
of driving licence with vehicle registration. This would be done by the
creation of a National Register for Driving Licence and National Register
for Vehicles with the online portals of ‘Sarathi’ and ‘Vahan’. This
process would ensure the creation of a uniform system of licences and
vehicle registration throughout the country.
Online Driving Licences
This Act makes a provision for online issuance of learner’s license,
mandating an online identity verification. This would improve efficiency
and limit to a large extent issuance of fake licenses. In addition to
increasing transparency, this Act also provides commercial licenses to
be valid up to a period of five years instead of three years. There
would now be driver training schools for the production of better
drivers on roads.
Motor Vehicles Accident Fund
A Motor Vehicles Fund would be constituted to provide compulsory
insurance to all drivers on-road by the central government. This fund
would be set up to compensate victims of road accidents and their
legal heirs in case of their death.
Better Insurance Facilities
This Act states that there exists no cap on liability for insurers. In fact,
drivers’ attendants are now to be included in third party insurance.
There would now be up to ten times increase in compensation by
insurance companies. Provisions have been made to ensure that if the
victim’s family agrees to compensation of five lakhs, the family gets it
within a month. The process of claiming compensation has also been
simplified. The minimum compensation for hit and run cases and cases
where the grievous injury is caused has also been increased.
Benefits
The main benefits of the amendment Acts are as follows-
1. E-Governance is the major highlight of this amendment. With this, it is
no longer necessary to have certain specified educational qualifications
for acquiring transport licenses. This provides online learning for
licences and increases the driving licence’s validity period.
2. The biggest benefit of this amendment for the ordinary man is the
increase in compensation to victims and their families and better and
quicker insurance facilities.
3. Provisions have been made to improve the registration process of
vehicles by making this process more convenient with the use of
‘Sarathi’ and ‘Vahan’ platforms. Provisions have been made to enable
registration of vehicles at the end of the dealer. Also, temporary
registrations have been discouraged.
4. With stricter rules on the fitness of vehicles, the air pollution level in
cities is expected to significantly drop.
5. With digitalization and e-governance, the system is expected to be
more efficient in its undertaking, minimizing risks.
Conclusion
The Motor Vehicles (Amendment) Act of 2019 seeks to bring about
changes in the Motor Vehicles Act of 1988. This is in lieu of solving
some major issues of road safety, third party insurance, etc. Guidelines
for cabs have also been issued, which would later be finalised. The
digitalisation of some related services like issuance of licences, change
in address, issuance of receipts to ensure better efficiency has been
done. The state governments are to constantly monitor state highways,
national highways, and urban roads through electronic mode. Some
major amendments are also done in the compensation schemes and
insurance provisions. All these have benefited the drivers of India,
although some have raised their concerns over the curbing of state
autonomy.
Q. 35. What are the various offences covered under Motor Vehicle Act 2019?
Ans. The new Motor Vehicle (Amendment) Act 2019, targeted towards
bringing changes in the transport sector to encourage safer driving
practices among Indian motor vehicle drivers. The draft for the
amendment was put forward in the lower house of the Parliament, with
a proposal to impose strict fines on the violators of traffic rules.Under
the new Motor Vehicle Act 2019, the penalties for almost all driving
errors have gone up significantly, especially if you consider serious
offences like those of drunk driving.
P unishment Punishment under amended

Sl.
Offence Section und er provisions provisions applicable w.e.f. 1-
No.
of MV Act, 1988 9-2019
Imp risonment up
Driving without holding an effective 3 & to 3 months or Imprisonment up to 3 months
1.
driving licence 181 fine up to Rs. or fine of Rs. 5000 or both
500 or both
Imp risonment up
4 & to 3 months or Imprisonment up to 3 months
2. Driving by an underaged person
181 fine up to Rs. or fine of Rs. 5000 or both
500 or both
Imprisonment up to 3 months
or fine of Rs. 5,000 or both
If an underaged person i.e.
minor permitted- to drive,
Owner or p erson-in-charge of a then section 199A will also
Imp risonment up
vehicle permitting an un licenced apply.
5 & to 3 months or
3. person or an underaged person to Guardian/owner shall be
180 fine up to Rs.
drive it (Parents/guardians/friends deemed to be guilty. Rs.
1000 or both
permitting minor to drive) 25,000 with 3 yrs.
imprisonment. For Juv enile
to be tried under J J Act.
Registration of Motor
Vehicle to be cancelled.
Up to Rs.100 for
the first offence Up to Rs. 500 for the first
Holder of a D/L permitting it to be 6(2 ) & Up to Rs.300 for offence
4.
used by other person 177 the second or Up to Rs.1500 for the second
subsequent or subsequent offence
offence
(i) Disqualified person driving a Imp risonment up

vehicle or, to 3 months
Imprisonment up to 3 months
(ii)applying for or obtaining a D/L or fine up to Rs.
23 & or fine of Rs. 10 ,000 or bo th
5. or, 500 or both
182(1 ) D/L obtained by him shall
(iii) seeking a D/L without D/L obtained by
have no effect.
disclosing endorsements made on him shall have no
D/L previously held effect
(i) Disqualified conductor acting as Imp risonment up

conductor or, to 1 month or Imprisonment up to 1 month
(ii) applying for conductor’s licence fine up to Rs. or fine up to Rs. 10,000 or
6. or, 23 & 100 or both both
182(2 )
(iii)seeking a licence without C/L obtained by C/L obtained by him shall
disclosing endorsements made on him shall have no have no effect.
licence previously held effect.
Upto Rs. 100 for

the first offence Up to Rs. 500 for the first
Running driving school without a Up to Rs. 300 for offence
7. 177
licence the second or Up to Rs. 1500 for the
subsequent second or subsequent offence
offence
Contravention of
section 62 A by
registering authority
or prescribed
62A & Min. penalty Rs. 5,000
8. authority by —
182B Max. penalty Rs. 10,000
registration/issue of
certificate of fitness
to oversized
vehicles
Central Govt. empowered to o rder for

recall of motor vehicles if a defect in
the v ehicle may cause da mage to the
A defect in a environment, or the driver, or other
particular type of road users (applicable from a date to
motor vehicle may be notified by the Central Govt.)
cause harm to the The manufacturer of the recalled
environment or to vehicle will be required to:(i)
the driver or reimburse the buyers for the full cost
9. o ccupants of such 110A — of the vehicle, or (ii) replace the
mo tor vehicle or defective vehicle with another vehicle
other road users and with similar or better
same has been specifications. And manufacturers will
reported to the also be liable to pay fines. However, he
Central Govt. by need not pay fines if informs the
any source. Central Gov t. of the defect and
initiates recall proceedings voluntarily
(applicable from a date to be notified
by the Central Govt.).
Rs. 20,000 and Rs. 2,000 per extra ton

Minimum fine of Rs. together with charges for off loading
Driving or 113(3), 2,000 plus additional the excess loa d.
permitting to drive a 114, 115 Rs. 1 ,000 per ton of Such motor vehicle shall not be
10.
vehicle carrying & excess load together allowed to move before such excess
excess load 194(1) with charges for off load is removed or is caused or allowed
loading the excess load to be removed by the person in control
of such motor vehicle.
Drives a loaded
Fine of Rs. 20,000 + pay charges for
mo tor vehicle or
causes or allows off-loading of such load.
Such motor vehicle shall not be
such motor vehicle
allowed to move before such load is
to be driven when
arranged in a manner such that there
the load or any part
is no extension of the load.
thereof or anything
11. 194(1A) New penalty provisio n Such motor vehicle shall not be
extends laterally
allowed to move before such load is
beyond the side of
arranged in a manner such that there
the body or to the
is no extension of the load laterally
front or to the rear
beyond the side of the body or to the
or in height beyond
the permissible front or to the rear or in height beyond
the permissible limit.
limit
Driver refusing to
stop and submit his
vehicle to weighing 114 &
12. Fine upto Rs. 3,000 Fine of Rs. 40,000
or removin g the 194(2)
load prior to
weighing
Any person driving or

permitting to drive any Upto Rs. 100 for the first
120 Upto Rs. 500 for the first offence
vehicle with a left hand offence
13. & Upto Rs. 1500 for second or
steering control unless Upto Rs. 300 for second or
177 subsequent offence
equipped with subsequent offence
prescribed device
Offence is driving in a ma nner

dangerous to the public or which
causes a sense of alarm or distress
to the occupants of the vehicle,
other roa d users and persons near
roads
(i) The following shall be treated
as dangerous driving:
(a) jumping a red light;
(b) violating a stop sign;
(c) use of handheld
communications devices (e.g.,
mobiles) while driving;
(d) passing or overtaking other
vehicles in a manner contrary to
“Driving in a manner law;
dangerous to the public” is the (e) driving against the authorised
offence. flow of traffic; o r
Punishable as under: (f) driving in any manner that
(i) Fine upto Rs. 1,000 or falls far below what would be
184
Driving dangerously/its imprisonment upto 6 months expected of a competent a nd
14. &
abetment or bo th for the first offence careful driver and where it
188
(ii) Imprisonment upto 2 would be obvious to a competent
years or fine upto Rs. and careful driver tha t driving in
2,000 or both for second and that manner would be da ngerous
subsequent offence committed Punishable as under:
within 3 years of first offence (ii) Fine not less than Rs. 1,000
but which may extend to Rs.
5,000 or imprisonment not less
than 6 months which may extend
to 1 year or both for the first
offence
(iii) Imprisonment upto 2 years
or fine of Rs. 10,000 or both for
second and subsequent offence
committed within 3 years of first
offence
Driving licence liable to be
impounded a nd sent for
disqua lification proceedings u/s
19 [New sub-section (4) of section
1
206]
Punishable as under:
(i) Fine of Rs.10,000 or
Punishable as under:
imprisonment upto 6 mo nths or
(i) Fine upto Rs. 2000 or
both for the first offence
imprisonment upto 6 months
Driving by a drunken (ii)Imprisonment upto 2 years or
185 or both for the first offence
person or by a person fine of Rs.15,000 or both for
15. & (ii) Imprisonment upto 2 years
under the influence of second and subsequent offence
188 or fine upto Rs. 3,000 or both
drugs/its abetment Driving licence liable to be
for second and subsequent
impounded a nd sent for
offence committed within 3
disqua lification proceedings u/s
years of first offence
19 [New Sub-section (4) of
section 206]1
Punishab le as under:
(i) Fine upto Rs. (i) Fine upto Rs. 1,000 for
Driving when mentally or 200 for the first the first offence
186 &
16. physically unfit to drive/its offence (ii) Fine upto Rs. 2 ,000 for
188
abetment (ii) Fine upto Rs. second or subsequent
500 for second or offence
subsequent offence
(i) For first offence:

Imprisonment upto 3
Imprisonment upto 3 months or fine of Rs. 2,0 00
146 & or both
17. Driving an uninsured vehicle mo nths or fine
196 (ii) For subsequent offence:
upto Rs. 1000 or both
Imprisonment upto 3
months or fine of Rs. 4,0 00
or both
Upto Rs. 100 for the

Upto Rs. 500 for the first
first offence
Driver’s failure to obey 119 offence
18. Upto Rs. 300 for
mandatory traffic signs &177 Upto Rs. 1500 for second or
second or subsequent
subsequent offence
offence

Upto Rs. 500 for the first
Driver’s failure to make first offence
121 & offence
19. prescribed signals on p rescribed Upto Rs. 300 for
177 Upto Rs. 1500 for second or
occasions second or subsequent
subsequent offence
offence

Driver allowing any person to Upto Rs. 500 for the first
first offence
obstruct his control of the 125 & offence
20. Upto Rs. 300 for
vehicle (sitting at a place so as to 177 Upto Rs. 1500 for second or
hamper d riving, etc.) subsequent offence
offence

Driver of two- wheeler/motor 128(1) Fine of Rs. 1000
first offence
cycle carrying more than one & 177 Disqualification from
21. person in addition to himself 128(1) Upto Rs. 300 for
holding driving licence for 3
(triple seat/triple riders) & 194C months
offence
Conclusion
The introduction of the new Motor Vehicle Act 2019 is clearly aimed at
ensuring that motorists start taking traffic rules more seriously, which,
in turn, will be promotion of safe and sustainable mobility across the
country. We hope that with the introduction of the amendments, the
people would now become more careful while using their vehicles.
Also, we are hoping for a serious drop in cases of drunk driving, non-
usage of seatbelts, rash driving, over-speeding and racing.

Leading Case 1.
Donogue v. Stevenson (1932) AC 562
Leading Case 2.
Indian Medical Association v. V. P. Shantha, AIR (1996) SC 558.
Leading Case 3.
Municipal Corporation of Delhi v. Smt. Subhagwati,
AIR (1966) SC 17.
Leading Case 4.
N. Nagendra Rao v. State of Andhra Pradesh,
AIR (1994) SC 2663.
Leading Case 5.
Rylands v. Fletcher, (1868) LP. 3 HL 330.
Leading Case 1.

Facts:
On August 26 1928, Mrs Donoghue’s friend bought her a ginger-beer
from Wellmeadow Café in Paisley. She consumed about half of the
bottle, which was made of dark opaque glass, when the remainder of
the contents was poured into a tumbler. At this point, the decomposed
remains of a snail floated out causing her alleged shock and severe
gastro-enteritis.
Mrs Donoghue was not able to claim through breach of warranty of a
contract: she was not party to any contract. Therefore, she issued
proceedings against Stevenson, the manufacture, which snaked its
way up to the House of Lords.
Issues:
The question for the HoL was if the manufacturer owed Mrs Donoghue
a duty of care in the absence of contractual relations contrary to
established case law. Donoghue was effectively a test case to determine
if she had a cause of action, not if she was owed compensation for any
damages suffered.
The law of negligence at the time was very narrow and was invoked
only if there was some established contractual relationship. An earlier
case, involving two children and floating mice, held that:
• Absent a contract, a manufacturer owed no duty of care to a consumer
when putting a product on the market except:
1. If the manufacturer was aware that the product was dangerous because
of a defect and it was concealed from the consumer (i.e., fraud); or
2. The product was danger per se and failed to warn the consumer of this.
Unlike Mullen, which stopped at the Court of Session, Mrs Donoghue
took her case to the HoL.
Decision:
The HoL found for Mrs Donoghue with the leading judgment delivered
by Lord Atkin in a 3-2 majority with Buckmaster L and Tomlin L
dissenting. The ratio decidendi of the case is not straightforward.
Indeed, it could be interpreted as narrow as to establish a duty not to
sell opaque bottles of ginger-beer, containing the decomposed remains
of a dead snail, to Scottish widows.
Read more broadly, the decision has several components: first,
negligence is distinct and separate in tort; second, there does not
need to be a contractual relationship for a duty to be established;
third, manufacturers owe a duty to the consumers who they intend to
use their product.
However, the primary outcome of Donoghue, and what it is best known
for, is the further development of the neighbour principle by Lord
Atkin, who said:
The rule that you are to love your neighbour becomes in law, you must
not injure your neighbour; and the lawyer’s question, Who is my
neighbour? receives a restricted reply. You must take reasonable care
to avoid acts or omissions which you can reasonably foresee would
be likely to injure your neighbour. Who, then, in law is my neighbour?
The answer seems to be – persons who are so closely and directly
affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the
acts or omissions which are called in question.
Mrs Donoghue had proved her averments that she had a cause of
action in law.
Analysis:
Donoghue was not the first case to attempt to sever the dependence
of negligence on contract; a few years previously, Lord Ormidale in
Mullen, said, ‘. . . it would appear to be reasonable and equitable to
hold that, in the circumstances and apart altogether from contract,
there exists a relationship of duty as between the maker and the
consumer of the beer.’ Thus, the doctrine is based in law and morality.
The impact of Donoghue on tort law cannot be understated; it was a
watershed moment effectively establishing tort as separate from
contract law.
However, it is important to remember that Donoghue was a milestone
in a new principle which needed refining, as Lord Reid said, ‘. . . the
well knownpassage in Lord Atkin’s speech should, I think, be regarded
as a statement of principle. It is not to be treated as if it were a statutory
definition. It will require qualification in new circumstances.’
The next major development in the ‘neighbour principle’ came from
Hedley Byrne v Heller which concerned economic loss. However, the
locus classicus of the ‘neighbour test’ is found in another economic
loss case called Caparo Industries v Dickman:
What emerges is that, in addition to the foreseeability of damage,
necessary ingredients in any situation giving rise to a duty of care are
that there should exist between the party owing the duty and the party
to whom it is owed a relationship characterised by the law as one of
‘proximity’ or ‘neighbourhood’ and that the situation should be one in
which the court considers it fair, just and reasonable that the law should
impose a duty of a given scope on the one party for the benefit of the
other. Thus, boiled down the requirements are: forseeability, proximity,
and fairness (policy considerations). There has been a certain degree
of overlap between the requirements with Lord Hoffman stating that
the distinctions between them, ‘. . .somewhat porous but they are
probably none the worse for that.’
It was argued unsuccessfully in Mitchell and another v Glasgow City
Council15 that because Caparo was concerned with economic loss it
had little application to personal injury claims; Lord Hope said that,
“….the origins of the fair, just and reasonable test show that its utility
is not confined to that category.”
The outcome of Donoghue has reverberated through law as a whole. It
essentially birthed a new area of law to the benefit and detriment of
some. For example, personal injury which is steeped in both statutory
duty and the ‘neighbour principle’. Indeed, it has grown to the point
where there are concerns of an American style ‘compensation culture’
best expressed by Lord Hobhouse when he linked it to the restriction
of the liberty of individuals: ‘the pursuit of an unrestrained culture of
blame and compensation has many evil consequences and one is
certainly the interference with the liberty of the citizen.’ Interestingly,
the facts were never tested in Donoghue; we will never know if there
was a snail in the bottle.
Indian Medical Association v. V. P. Shantha, AIR (1996) SC 558.

Introduction:
Due to the increasing number of medical negligence cases, numerous
complaints were filed before the consumer courts seeking compensation
under the Consumer Protection Act, 1986. There was ambiguity on the
issue of whether doctors, hospitals, and medical practitioners fall within
the ambit of ‘service’ as defined in Section 2(1)(o) of the Act, thereby
recognizing patients as ‘consumers’ and giving them the right to
approach the consumer courts to seek compensation.
Section 2(1) (o) of the Act defines ‘service’ as “service of any
description which is made available to potential (users and includes
the provision of facilities in connection with banking, financing
insurance, transport, processing, the supply of electrical or other energy,
board or lodging or both, housing construction, entertainment,
amusement or the purveying of news or other information, but does
not include the rendering of any service free of charge or under a
contract of personal service.” Neither does the definition expressly
include or does it exclude medical services. In the exclusionary part of
the definition, an interpretation could be adopted which brought
medical services not rendered free of charge under the ambit of ‘service’.
Another question to be considered was whether such services are
provided under a ‘contract of personal service’ to be excluded or not.
These issues were subject to consideration in a series of decisions
delivered by various High Courts and National Consumer Courts, which
gave contrasting and conflicting interpretations. Many Writ Petitions
and Special Leave Petitions were then filed before the Supreme Court
against these decisions and judgments.
In 1995, the Supreme Court delivered a historic decision in the case
of Indian Medical Association v VP Shantha which brought the
medical profession within the ambit of a ‘service’ as defined in Section
2(1)(o) of the Consumer Protection Act, 1986 and clarified the earlier
decisions.
Background and Facts of the Case:
A series of decisions led to confusion and contradictions in the judiciary
regarding the scope and application of the Act in cases of medical
negligence.
In Dr. A.S. Chandra v. Union of India, a Division Bench of the Andhra
Pradesh High Court held that service rendered for consideration by
private medical practitioners, private hospitals, and nursing homes is
‘service’ for Section 2(1)(d) of the Act and the persons availing such
services are ‘consumers’ within the meaning of Section 2(1)(d) of the
Act.
A different view was taken in the case of Dr.C.S. Subramanian v.
Kumarasamy & Anr.[3], where a Division Bench of the Madras High
Court held that the services rendered to a patient by a medical
practitioner or by a hospital by way of diagnosis and treatment, both
medicinal and surgical, would not be a ‘service’ and therefore a patient
cannot be considered to be a `consumer’ within the meaning of the
Act. It, however, recognized paramedical services as falling under the
ambit of the definition of ‘service’.
Conflicting approaches were taken in various judgments of the National
Commission. In its judgment and order dated December 15, 1989, it
held that persons who avail themselves of the facility of medical
treatment in Government hospitals are not “consumers” and since the
payment of taxes by the public would not constitute ‘consideration’,
the service would essentially be rendered free of charge falling in the
exclusionary part of the definition of ‘service’ under the Act. In its
judgment dated April 21, 1992, the National Commission held that the
activity of providing medical assistance for payment carried on by
hospitals and members of the medical profession falls within the scope
of the expression `service’.
Owing to the lack of uniformity in judicial interpretation a series of
appeals, special leave petitions, and the Writ Petitions were filed against
the contradictory decisions of the High Courts and subordinate courts.
These were heard together and decided by the Supreme Court in the
present case of Indian Medical Association v VP Shantha.
Issues Involved:
1. Whether a medical practitioner, hospital, or nursing home can be
regarded as rendering ‘service’ under Section 2(1)(o) of the Consumer
Protection Act, 1986?
2. Under what circumstances can the service render at a hospital/nursing
be regarded as ‘service’ under Section 2(1)(o) of the Consumer
Related Provisions:
Section 2(1)(o) of the Consumer Protection Act, 1986
Section 2(1)(d) of the Consumer Protection Act, 1986
Related Cases:
The court relied on the English case of Bolam v Friern Hospital
Management Committee which laid down the Bolam test for medical
negligence.
An impotant case relied upon by the Court was Lucknow Development
Authority v M.K. Guptawhich widely construed the definition of
‘service’. It held that “the main clause itself is very wide. It applies to
any service made available to potential users. The words ‘any ‘ and
‘potential’ are significant. Both are of wide amplitude.”
The case of Dharangdhara Chemical Works Ltd. v State of
Saurashtra was cited which distinguished between a ‘contract of
service’ and a ‘contract for services’, holding that a ‘contract of service’
implies a relationship of master and servant and involves an obligation
to obey orders in the work to be performed and as to its mode and
manner of performance
Some other cases relied upon by the Respondent are The High
Commissioner for India v I.M.Lall, Ram Kissendas Dhanuka v Satya
Charan Law, and Dr. S.B. Dutt v. the University of Delhi.
Judgment:
Issue 1. Whether a medical practitioner, hospital, or nursing home
can be regarded as rendering ‘service’ under Section 2(1)(o) of the
Consumer Protection Act, 1986?
The Supreme Court keeping in mind the wide amplitude of the definition
of ‘service’ in the main part of Section 2(1)(o), held in the affirmative.
It rejected the argument put forth by the petitioners contending that
services rendered by a person belonging to a ‘profession’ would not
fall within the ambit of the Act. Even though medical practitioners are
governed by the Indian Medical Council Act and are subject to the
disciplinary control of Medical Councils of India, they are not immune
from a claim for damages on the ground of negligence.
The Court was unable to agree with the submission that a
determination about deficiency in medical service for Section 2(1)(g)
cannot be judged based on any fixed norms. It observed that a
deficiency in service may be due to obvious faults attributable to
medical practitioners which can be easily established such as removal
of the wrong limb or the performance of an operation on the wrong
patient, etc. The Court held that a determination about deficiency in
service is to be made by applying the Bolam test as laid down in the
English case of Bolam v Friern Hospital Management Committee for
tortious action for damages for negligence. The Bolam test provides
that a medical practitioner must bring to his task a reasonable degree
of skill and knowledge and must exercise a reasonable degree of care.
When consulted by a patient, he owes a duty of care in deciding
whether to undertake the case, in deciding what treatment, and in the
administration of that treatment. A breach of any of these duties gives
a right of action for negligence to the patient.
Issue 2. Under what circumstances can the service render at a hospital/
nursing be regarded as ‘service’ under Section 2(1)(o) of the Consumer
Holding that the definition of ‘service’ is wide enough to include
services rendered by medical practitioners, the Supreme Court
proceeded to consider the exclusionary part of Section 2(1)(o). The
exclusionary part excludes services rendered (i) free of charge; or (ii)
under a contract of personal service.
Concerning (i), it held that doctors and hospitals/nursing homes who
render service without any charge to every person availing the service
would not fall within the ambit of the Act. This would fall in the
exclusionary part of the definition of service. However, medical services
rendered on payment of consideration are included under Section
2(1)(o).
The Court further considered a situation where free medical services
are provided to only those persons who cannot afford to pay off them,
and held that such services would undoubtedly fall within the ambit of
the Act since these expenses are met out of the income received from
paying patients.
Concerning (ii), the court reiterated the distinction between a ‘contract
of service’ and a ‘contract for service’. The fundamental difference is
that in the former, the employer enjoys a degree of control over the
work of the employee whereas in the latter, the independent contractor
so employed is not subject to the control of the employer and is free to
exercise discretion. The court held that the contract between the medical
practitioner and his patient cannot be treated as a contract of personal
service as a master-servant relations are absent. It would be a contract
for services and therefore, will not be covered by the exclusionary
part.
The Court finally concluded that “Service rendered to a patient by a
medical practitioner (except where the doctor renders service free of
charge to every patient or under a contract of personal service), by
way of consultation, diagnosis, and treatment, both medicinal and
surgical, would fall within the ambit of ‘service’ as defined in Section
2(1) (o) of the Act.”
Conclusion:
This landmark decision brought in a significant interpretation of medical
negligence liability, by subjecting the medical profession to the
Consumer Protection Act. Patients’ rights were recognized through
the conferring of consumer status, allowing them to file complaints in
cases of deficiency in rendering medical services.
However, this decision has received criticism from the community of
medical practitioners for making the medical profession vulnerable to
excessive suits, many of which are filed to harass doctors or to evade
the payment of medical bills. While it is important to protect the integrity
of this profession, the growing cases of medical negligence are a matter
of concern. The interpretation of ‘service’ by the Supreme Court seeks
to safeguards the interest and welfare of patients, which is paramount.
Municipal Corporation of Delhi v. Smt. Subhagwati,

AIR (1966) SC 17.
Facts:
Three suits for damages were filed by the respondents as heirs of
three persons who died as a result of the collapse of the Clock Tower
in Chandni Chowk, Delhi, belonging to the appellant-Corporation,
formerly the Municipal Committee of Delhi.
The building was 80 years old and the life of the structure of the top
storey, having regard to the type of mortar use, could be only 40 to 45
years and the middle storey could be saved for another 10 years. The
collapse of the Clock Tower was due to thrust of the arches on the top
portion. If an expert had examined this building specifically for the
purpose he might have found out that it was likely to fall. When the
building was inspected after the collapse it was found that it had
deteriorated to such an extent that it was reduced to powder without
any cementing properties.
The High Court held that the principle of res ipsa loquitur be applied
to the case. In the appeal, it was contended on behalf of the appellant
that the High Court was wrong in applying the doctrine of res ipsa
loquitur to this case.
Issue:
1. Whether the doctrine of res ipsa loquitur will apply?
2. Whether the appellant, as owner of the Clock Tower abutting on the
highway, is bound to maintain it in proper state of repairs so as not to
cause any injury to any member of the public using the highway and
whether the appellant is liable whether the defect is patent or latent?
3. Whether the appellant was negligent in looking after and maintaining
the Clock Tower and was liable to pay damages for the death of the
persons resulting from its fall?
Judgement:
Ramaswami, J – It is true that the normal rule is that it is for the plaintiff
to prove negligence and not for the defendant to disprove it. But there
is an exception to this rule which applies where the circumstances
surrounding the thing which causes the damage are at the material
time exclusively under the control or management of the defendant or
his servant and the happening is such as does not occur in the ordinary
course of things without negligence on the defendant’s part. The
principle has been clearly stated in Halsbury’s Laws of England, 2nd
Edn., Vol. 23, at p. 671 as follows: “An exception to the general rule that
the burden of proof of the alleged negligence is in the first instance on
the plaintiff occurs wherever the facts already established are such
that the proper and natural inference immediately arising from them is
that the injury complained of was caused by the defendant’s
negligence, or where the event charged as negligence tells its own
story’ of negligence on the part of the defendant, the story so told
being clear and unambiguous. To these cases the maxim res ipsa
loquitur applies. Where the doctrine applies, a presumption of fault is
raised against the defendant, which, if he is to succeed in his defence,
must be overcome by contrary evidence, the burden on the defendant
being to show how the act complained of could reasonably happen
without negligence on his part.”
The legal position is that there is a special obligation on the owner of
adjoing premises for the safety of the structures which he keeps besides
the highway. If these structures fall into disrepair so as to be of potential
danger to the passers-by or to be a nuisance, the owner is liable to
anyone using the highway who is injured by reason of the disrepair. In
such a case it is no defence for the owner to prove that he neither knew
nor ought to have known of the danger. In other words, the owner is
legally responsible irrespective of whether the damage is caused by a
patent or a latent defect. In Wringe v. Cohen [1940 1 K.B. 229] the
plaintiff was the owner of a lock-up shop in Proctor Place, Sheffield,
and the defendant Cohen was the owner of the adjoining house. The
defendant had let his premises to a tenant who had occupied them for
about two years. It appears that the gable end of the defendant’s
house collapsed owing to a storm, and fell through the roof of the
plaintiff’s shop. There was evidence that the wall at the gable end of
the defendant’s house had, owing to want of repair, become a nuisance,
i.e., a danger to passers-by and adjoining owners. It was held by the
Court of Appeals that the defendant was liable for negligence and that
if owing to want of repairs premises on a highway become dangerous
and, therefore, a nuisance and a passer-by or an adjoining owner suffers
damage by the collapse the occupier or the owner if he has undertaken
the duty of repair, is answerable whether he knew or ought to have
known of the danger or not.
Decision:
Ramaswami, J – In our opinion, the doctrine of res ipsa loquitur applies
in the circumstances of the present case. It is not the case of the
appellant that there was any earthquake or storm or any other natural
event which was unforeseen and which could have been the cause of
the fall of the Clock Tower. In these circumstances, the mere fact that
there was fall of the Clock Tower tells its own story in raising an
inference of negligence so as to establish a prima facie case against
the appellant.
In view of the fact that the building had passed its normal age at which
the mortar could be expected to deteriorate it was the duty of the
appellant to carry out careful and periodical inspection for the purpose
of determining whether, in fact, deterioration had taken placed whether
any precautions were necessary to strengthen the building.
Applying the principle to the present case it is manifest that the
appellant is guilty of negligence because of the potential danger of the
Clock Tower maintained by it having not been subjected to a careful
and systematic inspection which it was the duty of the appellant to
carry out.
N. Nagendra Rao v. State of Andhra Pradesh,

AIR (1994) SC 2663.
Facts:
The appellant, N. Nagendra Rao carried on a business and deals in
fertilizers and food grains under a license issued by the appropriate
authorities. On 11 August, 1975 the Police Officer, Vigilance Cell visited
its premises and seized a huge stock of fertilizers, food grains and non-
essential goods. On 31 August, 1975 the report submitted by the
Inspector, the District Revenue Officer(hereinafter as DRO), in the
exercise of powers under Section 6 -A of the Act, directed the fertilizers
to be placed in the custody of the Assistant Agricultural
Officer(hereinafter as AAO) for distribution to needy persons and the
food grains and non- essential goods in the custody of the Tehsildar.
The role of Tehsildar was to dispose of the food grains and non-
essential goods immediately and deposit the sale proceeds in the
Treasury. But, the AAO did not take any steps to dispose of the
fertilizers. Therefore, the appellant made applications on 17 September,
1975 before the DRO and on 11 February, 1976 before AAO, no steps
were being taken the fertilizers shall deteriorate and shall be rendered
useless causing a huge loss to the appellant. The request was made by
the appellant for diverting the fertilizers either to the place mentioned
by the appellant as the demand was more there or to release it in its
favour for disposal and deposit of the sale price. But neither any order
was passed by the DRO nor any action was taken by AAO. On, 29
June, 1976 the proceedings under section 6- A of the Act were decided
and the stock of food grain was confiscated as the appellant’s license
had been cancelled. After repeated requests, the collector ordered that
the goods be returned to the appellant. However, the AAO did not
comply with the orders. After repeated consultations with various
ministers, when the appellant finally obtained the stock back but it
was spoiled both in quantity as well as in quality.
Issue Before the Court:
The issue raised before the Apex Court were:
Whether the seizure of the goods in exercise of statutory powers under
the Act immunizes the state, completely, from any loss or damage
suffered by the owner.
Whether confiscation of part of the goods absolves the state from any
claim for the loss or damage suffered by the owner for the food grains
which are directed to be released or returned to it.
Ratio of the Case:
This case of N. Nagendra must be read in the light of Vidhyawati Case.
In this case, the liability was imposed on the state and the concept of
sovereign immunity was not adopted. In N. Nagendra Rao’s case as
well when the state seized certain goods under Essential Commodities
Act for public welfare, the onus fell on the state to ensure that the said
goods are carefully preserved as is necessary. Thus, the state was
held liable to pay the compensation for the loss incurred.
The Apex Court in Kasturilal Case, held that that state cannot be held
liable to compensate the appellant as the act of the state falls under the
sovereign function of the state. This view can nevertheless be accepted.
Sovereign immunity as a defense can never be available where the
state was involved in commercial or public activity and it interferes
with the life and liberty of a citizen. The state must be legally and
morally bound to compensate the victims for the wrongs committed.
No doubt the state must have protection so as to conduct its activities
for the public interest without being sued every now and then by the
people. However, this cannot be applied to every case where the state
fails to take necessary care to protect the interests of the public. The
state cannot have the absolute power to act according to its whims
and fancies.
With respect to the principle of vicarious liability, it was held that if the
officers can be sued personally for the negligence in discharge of
public property, there is no rationale for the proposition that even if
the officer is liable the state cannot be sued. Now, since the doctrine
has become outdated and sovereignty rests with the people, the state
cannot claim any immunity. Thus, the state of Andhra Pradesh was
directed to pay the appellant the amount as directed by the trial Court.
Decision of the Court:
The trial court held that the state while performing its duty under a
statute has been negligent and issued a decree for the payment of Rs.
1,06,125 towards the damaged stock along with the interest at the rate
of 6%.
The HC of A.P. struck down the order of the trial court and decided the
case on the basis of the ratio of Kasturilal case.
The appellant appealed in the SC against the judgment passed by the
HC of A.P. The Apex Court held that if the officers can be sued
personally for negligence in discharge of public property, there is no
rationale for the proposition that even if the officer is liable the state
cannot be sued. The Apex Court dealt with the concept of sovereign
immunity, meaning sovereignty rests with the people, the state cannot
claim any immunity. Thus, the State of A.P was directed to pay the
appellant the amount of Rs. 1,06,125 as decided by the trial Court
along with the interest at the rate of 6%.
Rylands v. Fletcher, (1868) LP. 3 HL 330

Brief Fact Summary:
Plaintiff sued in connection with the flooding of his mine. The trial
court found in his favor. Defendant sought review.
Synopsis of Rule of Law:
A person who for his own purposes brings on his lands 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.
Facts:
Plaintiff owned and operated a mine adjacent to which Defendant
constructed an artificial pond. The latter caused a mine shaft collapse,
which resulted in a flood, and damaged Plaintiff’s operation. The plaintiff
sued, the matter was brought before an arbitrator to independently
establish facts. The trial court found for Plaintiff; the appellate court
affirmed; Defendant appealed to the House of Lords, which also
affirmed.
Issue:
Was the use of Defendant’s land unreasonable and thus was he to be
held liable for damages incurred by Plaintiff?
Held:
The lower court judgment was affirmed, stating in essence that the
Defendant’s use of the land was unreasonable, engaged in without
proper caution, and resulted in harm to the Plaintiff.
Concurrence:
The concurrence states more clearly the rule to be applied (see above),
noting also that more than the due care which was owed to plaintiff, at
issue was the factual determination of damage: “[w]hen one person in
managing his own affairs causes, however innocently, damage to
another, it is obviously only just that he should be the party to suffer.”
Discussion:
The Rylands court considers the manner in which the Defendant used
the land and concluded such use was “non-natural” what modern
courts have described as inconsistent land use, i.e., when a party
inflicts non-reciprocal risks on another. Nineteenth century English
law was stricter than current law, in which trespass liability ordinarily
requires the physical intrusion onto property, and nuisance law requires
“continuing” and “permanent” activity (such as industrial activity
that causes airborne pollution.


LAW OF TORTS &amp; CONSUMER PROTECTION ACT 2019

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According to syllabus of Dr.

Bhimrao Ambedkar Law University, Jaipur 1

Q.20 What is Defamation?

Q.46 Difference between tort and breach of trust.

Tort Breach of trust

Tort Breach of trust

Q.47 Difference between tort and Quasi Contract.

Tort Q uasi Contract

Tort Breach of Contract

Q.55 Who is the propounder of Pigeon-hole theory?

(I) Torts to person

(A) Judicial Remedies :

Every assault does not Every battery includes assault.

This is done to threaten a This done to cause harm to a

For an Assault a mere For a battery there must be an

Basis of comparison PUBLIC NUISANCE TORT PRIVATE NUISANCE TORT

Actionable Public nuisance is actionable Private nuisance is only

S. No. Libel Slander

In the case of Ramesh Kumar Nayakvs Union of India (1994), The

P unishment Punishment under amended

(i) Disqualified person driving a Imp risonment up

(i) Disqualified conductor acting as Imp risonment up

Upto Rs. 100 for

Central Govt. empowered to o rder for

Rs. 20,000 and Rs. 2,000 per extra ton

Any person driving or

Offence is driving in a ma nner

(i) For first offence:

Upto Rs. 100 for the

Upto Rs. 100 for the

Upto Rs. 100 for the

Upto Rs. 100 for the

Donogue v. Stevenson (1932) AC 562

Indian Medical Association v. V. P. Shantha, AIR (1996) SC 558.

Municipal Corporation of Delhi v. Smt. Subhagwati,

N. Nagendra Rao v. State of Andhra Pradesh,

Rylands v. Fletcher, (1868) LP. 3 HL 330

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LAW OF TORTS & CONSUMER PROTECTION ACT 2019

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