CONTENTSkamkus.org/coursematerial/TORTS 2015-16.pdf · CONTENTS UNIT – I - Definition - Nature...

CONTENTS

UNIT – I- Definition

- Nature and Characteristics of Tort

- Tort and Crime

- Tort and Contract

- Damnum Sine Injuria

- Who can sue and who can be sued.

- Important Questions

UNIT - II - Negligence

- Principles of Liability in Tort

- Res Ipsa Loquitor

- Defences - Volenti non fit injuria, act of God, private defences

& inevitable accident etc.

Important Questions

UNIT - III - Nuisance

- Tortious liability of State

- Trespass

- Legal remedies

Important Questions

UNIT - IV - Consumer Movement in India

- Who is not a consumer

Important Questions

UNIT - V

- Consumer Protection Councils

- District Forum

- Jurisdiction, Powers and Functions, Execution of Orders

Important Questions

Suggestion Readings

Student's Assignment

1

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UNIT - I

DEFINITION

Origin of Word 'Tort': The word tort has been derived from a Latin term "tortum" which means "to twist". It,

therefore, includes that conduct which is not straight or lawful but, on the other hand, twisted, crooked or

unlawful.

It is equivalent to the English term 'wrong'.

Definition of 'Tort': Tort is a wrongful act which results from the breach of a duty recognized by the law of

torts, e.g., violation of a duty not to injure the reputation of someone results in the tort of defamation,

violation of a duty not to interfere with the possession of land of another person results in the tort of trespass

to land.

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. Thus from the above

definition following essentials emerge:

- Breach of duty

- Unliquidated damages

- Duty towards common people

Winfiled- The Basic principle of tortuous liability is that the duty from the very first must be fixed by the~ law

itself and not by the agreement of parties. For example, I am under a legal duty not to trespass on your land.

Now, this duty has been primarily fix by law on me and has not been created between you and me through

an agreement.

In this definition the emphasis is laid upon "generally". If the duty is towards specific person persons, it

cannot arise from tort. In other words, the duty in tort in always general. For example, I am under a legal duty

not to commit assault or any other tort against anyone who can sue me in a court. This element of generality

is, Therefore, an important factor.

In tort the damages remains uncertain or unliquidated until the case is finally decided by the count. Where

the plaintiff in an action sues for a pre-determined and in elastic sum of money, he is said to have claimed

liquidated damages. But where he sues for an amount as the court, in its discretion, is at liberty to award, he

is claiming unliquidated damages. But where he sues for an amount as the court, in its discretion, is at

liberty to award, he is claiming unliquidated damages and this is so even where he has mentioned a

particular sum of money in his pleadings.

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Salmond: Tort may be defined as a civil wrong which is redressible by an action for unliquidated damages

and which is other than a mere breach of contract or breach of trust. Thus it may be observed that:

1. Tort is a Civil Wrong: Tort belongs to the category of civil wrongs. The basic nature of civil wrong is

different from criminal wrong. In the case of a civil wrong the injured party i.e. the plaintiff institutes

civil proceedings against the wrong doer, the defendant. In such a case the main remedy is

damages. The plaintiff is compensated by the defendant for the injury caused to him by the

defendant.

In the case of criminal wrong, on the other hand, the criminal proceedings against the accused are

brought by the State. Moreover, justice is administered by punishing the wrong doer in such a case

and not by compensating the victim.

2. Tort is other than mere breach of Contract or Breach of Trust: Tort is that civil wrong which is not

exclusively any other kind of civil wrong.

It is only by the process of elimination that we may be able to know whether the wrong is tort or not.

First, we have to see whether the wrong is civil or criminal. If it is a civil wrong, it has to be further

seen that if it exclusively belongs to another recognized category of civil wrong like breach of

contract or breach of trust. If it is found that it is neither a mere breach of contract nor any other civil

wrong then we can say that the wrong is tort.

3. Tort is Repressible by an Action for Unliquidated Damages: Damages are the most important

remedy for a tort. After the commission of the wrong it is generally not possible to undo the harm

which has already been caused and generally it is the money compensation or damages which may

satisfy the injured party.

There are other remedies which could be available when the tort is committed and the other

remedies may be more effective than the remedy by way of damages, for example, when a

continuing wrong like nuisance is being committed, the plaintiff may be more interested in the

remedy by way of injunction to stop the continuance of nuisance than claiming compensation from

time to time if the nuisances is allowed to be continued.

Damages in the case of a tort are unliquidated. It is the fact which enables us to distinguish tort from

other civil wrong like breach of contract or breach of trust where the damages may be liquidated.

Liquidated damages means such compensation, which has been previously determined or agreed

by the parties.

When the compensation has not been so determined but the determination of the same is left to the

discretion of the court, the damages are said to be unliquidated.

THE NATURE OF THE TORT CAN BE UNDERSTOOD BY DISTINGUISHING

1. TORT AND CRIME : The wrongs which are less serious are considered to be private wrong and

have been labeled as civil wrongs whereas more serious wrongs have been considered to be public

wrongs and are known as crimes.

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- According to Blackstone: Wrongs are divisible into two sorts or species-private wrongs and

public wrongs. The former are the infringement or privation of private or civil right belonging to

individuals and latter are breach or violation of public rights or duties, which affect the whole

community.

- Since tort is considered to be a private wrong the injured party himself has to file a suit as a

plaintiff. If at any stage the injured party likes, he may agree to a compromise with the tort feasor

and withdraw the suit.

- In the case of crime, on the other hand, even though the immediate victim is an individual the

criminal wrong is considered be to a public wrong and criminal proceedings are, therefore,

brought by the state and not by the injured party. Moreover, in certain exceptional cases of more

serious nature law does not permit a settlement in the criminal case between the wrong doer

and aggrieved party.

- In the case of tort, the ends of justice are met by awarding compensation to the injured party.

In the case of crime the wrong doer is punished. The idea of awarding compensation to the

injured party under civil law is to make good the loss suffered by him. The punishment under the

criminal law protects the society by preventing the offender from committing further offences

and deterring him and other potential offenders from committing further offences.

- Sometimes, the same set of facts may constitute both a tort and a crime. The civil and

criminal remedies in such a case are not alternative but they are concurrent. The wrong doer

may be required to pay compensation under the law of torts and he may also be liable under

criminal law. For example, if A digs a ditch on road resulting in inconvenience to public at large A

has committed the offence of public nuisance under section 268 IPC. If X a passer-by falls into

that ditch and thereby gets injured A's act also becomes a tort of private nuisance as against X. A

will also be punished under criminal law for the offence of public nuisance as well as he will be

liable to compensate X under torts.

2. TORT AND BREACH OF CONTRACT: A breach of contract results from the breach of a duty

undertaken by the parties themselves. A tort, on the other hand, results from the breach of such duties

which are not undertaken by the parties themselves but which are imposed by law, e.g., I have a duty

not to assault or defame anyone or to commit nuisance or trespass over another person's land not

because I have voluntarily undertaken anyone of these duties but because the law imposes such duties

on me or rather on every member of the society. The breach of these duties is a tort.

- In a contract, the duty is based on the privity of contract and each party owes only to the

other contracting party. If A and B make a contract I\s duty is towards Band B only.

- Duties imposed by law under the law of torts are not towards any specific individual or

individuals but they are towards the world at large. However, even in a tort only that person will

be entitled to sue who suffers damage by the breach of the duty who has a locus standia's duty

not to defame is not towards X or Z only and whosoever is defamed by A will be entitled to bring

an action against him for the tort of defamation. The case of Donoghue V Stevenson shows that

the manufacturer of drinks owes a duty of care to every possible consumer of his product.

- Damages are the main remedy in an action for a breach of contract as well as in action for

tort. In a breach of contract the damages may be liquidated where as in an action for tort they are

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always unliquidated.

Is it Law of Tort or Law of Torts?: The question is;

1. If in the law of tort every wrongful act for which there is no justification or excuse to be treated as a

tort.

2. Is the 'law of torts' consisting only of a number of specific wrongs beyond which liabilities under this

branch of law cannot arise?

Winfield preferred the first of these alternatives and according to him it is the law of tort. According to this

theory, if I injure my neighbour he can sue in tort whether the wrong happens to have particular name like

assault battery, deceit, slander or whether it has no special title at all, and I shall be liable if I cannot prove

lawful justification.

Salmond, on the other hand, preferred the second alternative and for him it is law of torts. The liability under

this branch of law arises only when the wrong is covered by anyone or the other nominated torts. There is no

general principle of liability and if the plaintiff can place his wrong in anyone of the pigeonholes, each

containing a labeled tort he will succeed. This theory is also known as 'Pigeonhole theory'. If there is no

pigeonhole in which the plaintiff case could fit in, the defendant has committed no tort.

ESSENTIALS OF TORT

To constitute a tort it is essential that the following two conditions are satisfied:

1. There must be some act or omission on the part of the defendant, and

2. The act or omission should result in legal damage.

1. Act of Omission: In order to make a person liable for a tort he must have done some act which he

was not expected to do or he must have omitted to do something which he was supposed to do. Either a

positive wrongful act or an omission which is illegally made will make a person liable.

- For example, A commits the act of trespass or publishes a statement defaming another

person or wrongfully detains another person; he can be made liable for trespass, defamation or

false imprisonment.

- Similarly, when there is a legal duty to do some act and a person fails to perform that duty he

can be made liable for such omission. For ex., If a corporation which maintains a public park fails

to put proper fencing to keep the children away from a poisonous tree and a child plucks and

eats the fruit of the poisonous tree and dies, the corporation would be liable for such omission.

- Wrongful act or a wrongful omission must be one recognized by law. If there is a mere moral

or social wrong there cannot be a liability for the same. For ex., If somebody fails to help a

starving man or save the drowning child it is only a moral wrong and therefore no liability can

arise for that.

2. Legal Damage

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·In order to be successful in an action for tort the plaintiff has to prove that there has been a legal

damage caused to him. In other words, it has got to be proved that there was a wrongful act or

omission, causing breach of a legal duty or the violation of a legal right vested in the plaintiff.

·If there has been violation of a legal right, the same is actionable whether as a consequence thereof

the plaintiff has suffered any loss or not. This is expressed by the maxim injuria sine damno. Injuria

means infringement of a right conferred by law on the plaintiff or an unauthorized interference,

howsoever trivial, with the plaintiffs right. Damnum means substantial harm, loss or damage in

respect of money, comfort, health or the like, whereas when there is no violation of legal right no

action can lie in a court of law even though the defendant's act has caused some loss or harm or

damage to the plaintiff. This is expressed by the maxim 'Damanum Sine injuria:

Firstly, those torts which are actionable per - se Le. actionable without the proof of any damage or loss. For

ex., Trespass to land.

Secondly, the torts, which are actionable on the proof of some damage caused by an act.

Injuria sine damno covers the first of the above stated cases. For a successful action, the only thing which

has to a proved is that the plaintiff's legal right has been violated.

Ashby V White is a leading case examining the maxim injuria sine damno. In this case the plaintiff

succeeded in his action even though the defendant's act did not cause any damage. The plaintiff was a

qualified voter at a parliamentary election but the defendant, a returning officer wrongfully refused to take

plaintiff's vote. No loss was suffered by such refusal because the candidate, for whom he wanted to vote,

won the election. In spite of that it was held that the defendant was held liable.

DAMNUM SINE INJURIA

It means damage, which is not coupled with an unauthorized interference with the plaintiff's lawful right.

Causing of damage, however substantial to another person is not actionable in law unless there is also

violation of a legal right of the plaintiff.

Gloucester Grammar School case explains the point. There the defendant, a schoolmaster set up a rival

school to that of the plaintiff's. Because of the competition the plaintiff had to reduce their fees from 40

pence to 12 pence per scholar per quarter. It was held that the plaintiff had no remedy for the loss thus

suffered by them.

- A legal act although motivated by malice will not make the defendant liable. The plaintiff can

get compensation only if he proves to have suffered legal injury because of an illegal act of the

defendant and not otherwise.

Mental Element in Tortious Liability: Mental element is an essential element in most of the forms of

crime. However, such a generalization cannot be made about liability in tort. The position under the law of

torts is as follows:

Fault when Relevant: In many of the branches of law of torts like assault, battery, false imprisonment,

deceit, malicious prosecution and conspiracy the state of mind of a person is relevant to ascertain his

liability. It has to be seen whether a particular wrongful act was done intentionally or maliciously.

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Conduct of defendant may be compared with that of a reasonable man and he may be held liable if his

conduct falls below the standard expected of a reasonable man.

Liability without Fault: There are certain areas where the mental element is quite irrelevant and the

liability arises even without any wrongful intention or negligence. In such cases, innocence of the defendant

or an honest mistake on his part is no defence.

Tort of conversion is an example of the same. Thus an auctioneer who sells goods under an authority from a

customer having no title to the goods, is liable for conversion even though at the time of sale he honestly

believed that the customer was the true owner.

Malice in Law and Malice in Fact: The term malice has been used in two different senses:

In its legal sense, it means a willful act done without just cause or excuse and it is known as malice in law. It

simply means a wrongful intention which is presumed in case of an unlawful act rather than a bad motive or

feeling of ill will.

Motive means an ulterior reason for the conduct. It is different from intention, which relates to the wrongful

act itself. The immediate intention of a person may be to commit theft; the motive of theft may be to buy food

for his children.

Motive is not relevant to determine a person's liability in the law of torts. A wrongful act does not become

lawful merely because the motive is good. Similarly, a lawful act does not become wrongful because of bad

motive or malice. It was laid down in Mayor of Bradford Corporation V. Pickles (Damnum Sine Injuria)

1. WHO CAN SUE AND WHO CAN BE SUED

In the Law of Torts the general rule is that all persons are entitled to sue and are liable to be sued for

tortuous act.

'Sue' means to institute suit generally, every person has capacity to sue or liability to be sued in tort.

However, there are some variations to this rule in case of certain persons.

(1) Convict: In England a convict who is sentenced to a term of imprisonment only, can sue in his own

name for torts to his properly. However, where the wrong is not with respect to property, but the person,

for example, assault or slander, it would be open to the convict to maintain an action.

In India a convict can sue both for a wrong to his person or to property. However, he can not sue when

his property has been lawfully forfeited under sections 126, 127 and 169 of the IPC.

Under the Indian Law, a convict cannot be deprived of those fundamental right which are available to a

person under the constitutional law. His freedom of movement or association may however, be

restricted in accordance with the prison regulations. But right to property cannot be fettered in any way

and he can sue or be sued for torts relating to property.

The Supreme Court in Sunil Batha V. Delhi Administration AIR 1978 held that conviction of a person

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does not pull down conviction of a person does not pull down a iron-curtain between him and his legal

rights, and does not render him devoid of personality. Therefore, he can Sue person for wrongful acts

done against him.

2. Alien Enemy - The term 'alien enemy' connotes a person who voluntarily resides or carries on

business in a country which is at war with India.

- English Law: An alien enemy cannot sue.

He cannot maintain an action except when duly licensed by an order in council.

- Indian Law: In India an alien can sue by obtaining permission of the Central Govt. u/s 83 CPC. Effect of

provisions of section 83 CPC may be summarised as follows:-

i) An alien enemy residing in India with the permission of Govt. may sue as if he is an Indian

subject.

ii) An alien friend can file suit in any Indian Court.

iii) An alien enemy residing in India without the permission of Govt. of India cannot sue in Indian

courts at all. (Any person residing in India which is at war with India shall be considered to be an

alien enemy).

3. Foreign Sovereign

English Law: English Courts have no jurisdiction over an independent foreign sovereign unless he

submits to the jurisdiction of the court The rule equally applies to all sovereign heads whether of a small

state or a big nation.

- No court can entertain an action against foreign sovereign for any thing done or omitted to

be done by him in his public capacity as representative of nation of which he is the head (De

Haber Vs Queen of Portugal). The immunity available to foreign Sovereign is based on the

proposition that it would be against the dignity and soverenity of a state to allow it to be

impleaded in a foreign court and such immunity also extends to officials of the foreign sovereign

(Winfield & Jolowicz; Tort (17th Ed.2006) P. 1032.

Indian Law

- U/s 86 CPC no ruler of sovereign state may be sued in any court otherwise competent to try

the suit except with the consent of central Govt. certified in writing by secretary to that Govt.

- Immunity extends also to the family of such minister or ambassador.

- Provisions of sec 86 CPC apply in case of Ambassador also.

- Diplomatic privilege does not import immunity from legal liability but only exemption from

local jurisdiction; rights of action against them are merely suspended until their recall.

- Thus diplomatic agents are not immune from legal liability for any wrongful act.

4. Corporations

Corporate bodies or corporations have been confined legal personality by law and therefore, they are

treated like a natural person so far determination of their rights, duties and liabilities are concerned. But

since corporations are not real persons, hence it is obvious that their functions are performed by their

agents, officials, employees, etc.

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It is liable for torts committed by its agents or servants to the same extent as a principal is liable for the

wrongful acts of his agents or a master is liable for the tort committed in course of doing an act which is

within the scope of the powers of the corporation. The liability of corporation for the tortuous acts of its

agents or employees shall not extend to the acts committed by them which they were not authorized,

that is, acts which are ultra-vires the corporation.

The Supreme Court in Lucknow Development Authority V. M.K. Gupta AIR 1994 SC 787. held that Govt.

corporation created by a statute is as much liable as a private body unless otherwise provided by the

statute.

A Corporation not being a natural person, cannot personally commit a tort because it has no brain or

body of its own. It is therefore, vicariously held liable for the tortuous acts of its agents or servants

committed by them in course of employment.

5. Minor

Capacity to Sue

Minor has right to sue but he has to bring an action not in his own name but through his next friend.

Capacity to be Sued

- Minority is no defence under torts and minor is liable in the same manner and to the same

extent as an adult for tort committed by him.

- In case of contract a minor is incompetent to contract, his agreement being void ab initio, no

action can be brought under the law of contract against him.

- Under Criminal law a child below the age of seven years cannot be held liable for any

offence as he is presumed to be doli incapax. (incapable of doing wrongful act).

- Between age of 7 & 12 a child is not liable unless he had attained sufficient maturity of

understanding to judge the nature and consequences of his conduct.

- Law of torts does not make any distinction on the basis of age. However, if the tort is such as

requires a special mental element such as deceit, malicious prosecution etc. a child cannot be

held liable for the same unless sufficient maturity for committing that tort can be proved.

Liability of Parents for Children's Torts: As a general rule, a parent or a guardian cannot be made liable

for the torts of child. There are two exceptions:

I. When the child is his father's servant or agent, the father is vicariously liable.

II. When father himself by his own negligence affords his child an opportunity to commit tort.

Bebee v. Sales: The father supplied an air gun to his son aged 15 years. Even after complaints of mischief

caused by the use of such gun, he allowed the gun to remain with boy who thereafter accidentally wounded

the plaintiff. Father was held liable.

6. Husband and Wife

- At common law there could be no action between husband and wife for tort.

- Neither the wife could sue her husband nor could the husband sue his wife, if the other

spouse committed a tort.

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- The Married Women's Property Act, 1882 made a change and permitted a married woman

to sue her husband in tort for the protection and security of her property.

- A wife could sue only for the protection and security of her property, she could not sue her

husband if he caused her any personal injuries.

- Thus, if the husband damaged her watch, she could sue him for the same but if he

negligently fractured her legs, she could not bring any action for that.

- Husband had no right at all for an action for any kind of harm caused by his wife to him.

- The rule prohibiting action between spouses has been abolished by The Law Reform

(Husband & Wife) Act, 1962.

- Now the husband and wife can sue each other as if they were unmarried.

Husband's Liability for Wife's Torts

- At common law if the wife committed a tort there could be an action against both husband

and wife because the wife could not be sued alone.

- A husband was thus liable for the torts of his wife committed after marriage.

- Under The Married Women's Property Act, 1882 the husband was also liable for prenuptial

tort of his wife to the extent of the property he acquired through her.

- The Law Reform (Married Women and tort feasors) Act, 1935 has changed the position and

now husband is not liable for any tort of his wife, whether committed by her before or after

marriage merely because he is her husband.

- In India Sec-7 of the Married women's Property act 1874 provides a married woman may

maintain a suit in her own have against all persons, and she shall be liable also.

- It is Act does not apply to Hindus, Sikhs or Muslims. Their personal laws also recognize civil

action against each other in respect of her/his separate property, but neither of the spouse can

sue the other for torts to person done by one to another. The Hindu law recognizes a right to

Compensation only when there is pecuniary loss and not in other cases like assault, false

imprisonment, defamation, insult, adultery etc. which are only punishable and not actionable

wrong. The Muslim law is also on Similar lines.

7. Lunatics: Lunacy like infancy is not a good defense in an action for a tort except in case where

intention, knowledge, malice or any other mental condition is essential to create a tortious liability and

the lunatic may be found incapable of having such mental condition of intention or knowledge sufficient

to impose liability upon him. Whether the insanity is or is not of that degree is a question which has to be

decided in each case depending upon the facts and circumstances of the case. The ultimate aim of the

law of tort is redressal of plaintiff's claim for damages rather than to punish the defendant. Then why

should plaintiff deprived of his right to claim damages merely because the defendant is an insane or

mentally disordered person.

8. Insolvent: The Liability of an insolvent for the tort committed by him depends on the nature of his

tort, whether it relates to property or person or bodily harm.

Where defendant's tort has caused damage to property of an insolvent person, his right to sue the

defendant shall transferred to the Receiver or official assignee with a view to protecting the interest of

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the Creditors. But if the tort relates to the property or reputation of the insolvent, in that case he himself

can sue the defendant without any intervention of the official assignee.

At last, an insolvent who has been adjudicated as such cannot sue for a wrong to his property, as it vests

in the official Receiver. He can, however, sue for a wrong to his person or reputation.

9. Unborn Child: Where injury is caused to an unborn child in the mother's womb, it would cause

physical pain and suffering to the mother for which she can recover damages from the defendant. But

whether he/she can maintain an action for injuries sustained enventresa mere (When she was in the

mother's womb) is still unsettled. There is no English or Indian Case Law on the point.

In England the British Parliament passed 'cogenital Disability (Civic Liability) Act, in 1976, whereby an

action for the injury to unborn child has been permitted in certain cases.

In India Hindu law recognizes rights of an unborn child and is case of partition of property he is allocated

a share in it along with other heins. A partition made without allocating a share to a child in mother's

womb will be wholly unlawful and liable to be set aside.

Urdu Criminal Law sec. 316 of The IPC makes causing death of a child in mother's Womb a punishable

offence. Under Sec. 312, 313 of IPC causing illegal abortion in an offence.

10. Independent and Joint Tort Feasors (Composite Tortfeasors) : 10. Independent and Joint

Tort: Feasors (Composite Tort feasors)

A person who commits a wrongful act is known as a 'Tort -Feasor'. When act, they would not necessarily

be joint tort feasors, they may be independent tort feasors or joint tort feasors.

Previously there was two principles regarding liability & joint tort feasor or right to sue of the plaintiff. But

later on it was modified.

The first principle says that in case where there are more than one just - e tortfeasors, if the plaintiff had

filed suit against only one or some of them, he was debarred from brining successive action against the

remainder that is those who were not sued in the first instance. This rule was abolished by the law

reform (Married Women & Tort - Feasors) Act, 1935, which provided "Judgement recovered against any

tort-feasors liable in respect of that damage shall not be a bar to an action against other tort-feasers who

would, if sued, have been liable as joint tort feasors in respect of the same damage.

The second common law principle with regard to joint-tort feasors was that where one of the joint tort-

feasors has paid the whole damages to the plaintiff, he had no right to claim contribution from others.

This principle has also been abolished by the English Civil Liability (Contribution) Act, 1978. Both these

principles were not applicable to India firstly because they were embodied in the statutory law of

England and Secondly, because they were contrary to the doctrine of equity, justice and good

conscience.

Independent Tortfeasors

- When the acts of two or more persons acting independently concur to produce a single

damage, they are known as independent tort feasors. There is mere similarity of design on their

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part although they act independently of one another.

- For example, two motorists driving negligently and coming from the opposite directions

collide and a pedestrian is crushed between the two cars, these motorists are independent

tortfeasors.

- In the case of 'The Koursk' Due to independent negligence of the two ships that collided with

one another and as a consequence of the same, one of them ran into and sank a third vessel.

Held that they were not joint tortfeasors but only independent tort feasors. The liability of the

independent tortfeasors was not joint but only 'several' and therefore there were many causes

of action as the number of tort feasors. Thus held that since they were severally liable, an action

again one of them was no bar to an action against the other.

Joint Tortfeasors

- Two or more persons are said to be joint tortfeasors when the wrongful act which has

resulted in a single damage was done not independently of one another but in furtherance of

common design.Two or more persons are engaged in a common pursuit and one of them in the

course of and in furtherance of that commits a tort, both of them will be considered as

jointtortfearors and liable as such.

- Persons having certain relationship are also treated as tortfeasors. Common examples are:

Principal and agent, master and his servant and partners in a partnership firm.

- If an agent, servant or partner does a wrongful act in the scope of his employment, principal,

master or other partners can be made liable along with agent, servant or partners as joint tort

feasors.

- Distinction between joint tort-feasors and independent tortfeasors lies in the fact that in the

case of former there is concurrence not only in the ultimate consequences but also mental

consequences in doing the act. In the case of latter, on the other hand, there is merely

concurrence in the ultimate result of the wrongful result independently done.

Composite Tortfeasors

- Torts in India have not necessarily followed the distinction between joint and independent

tortfeasors as recognised in England.

- When two or more persons are responsible for a common damage (whether acting

independently or jointly) they have been termed as composite tortfeasors.

Position in India: The law relating to the liability of joint tort-feasors in India is similar to that of English law

operating consequent to the passing of the Civil liability (Contribution) Act, 1978 in England. However, there

is no specific statutory enactment in this regend in India may be summarized as follows:

1. Where the plaintiff sued anyone or some of the joint-feasors but the decree passed in favour of the

plaintiff was not in full bring fresh suit against the remaining tort-feasors.

2. Where the cost of suit has been recovered by the plaintiff from the tort-feasors whom he sued first,

he cannot be permitted to claim costs in successive suits unless the court deems it just and reasonable.

3. In case of independent tort feasors also plaintiff can bring successive action against the other tort

feasors even though he has recovered damages from those whom he had suede earlier. There is no

restriction as regards the amount recoverable in subsequent suits filed by the plaintiff.

4. A defendant who has paid the aggregate full amount of decree shall have the right to sue the co-

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defendants (Joint- tort-feasors) for contribution.

5. An agreement or covenant of compromise between the plaintiff and or more tort-feasors does not

ipso-facto extinguish the liability of remaining tortfeasors hence suit against them shall not abate,

instead it will be continued until the final decision.

Judicial Officers: The Judicial Officers are protected from the tortious liability by the Judicial Officers

Protection Act, 1860 which places the Judicial Officers beyond the purview of the tortious liability. However,

an ultra vires action of a Judge is not protected from the tortious liability. This proposition of law was held in

Sailajanand Pandey vs DC Gupta.

IMPORTANT QUESTIONS

Q.1. A tort is a species of civil injury or wrong. Examine the definition and add other features

differentiating it from crime and breach of contract etc to make it comprehensive.

Q.2. What do you understand by maxims injuria sine damnum and damnum sine injuria? Elaborate with

the help of case law.

Q.3. What do you understand by tortious liability? Differentiate between Tort and Contract and Tort and

Breach of Trust.

Q.4. Who can sue under law of Tort? Discuss about Minors' capacity to sue and be sued.

Q.5. In which country the tort had first originated?

Q.6. In which court the claim for damages in tort lies?

Q.7. How many sections are there in law of torts?

Q.8. The mere causing of actual loss to another is not necessarily a tort but the mere wrong without any

actual loss is a tort." Explain and refer to decided cases.

Q.9. Who are the persons who cannot file a suit in Law of Tort due to personal incapabilities?

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UNIT – II

Negligence implies absence of intention to cause the harm complained of. It means careless or

unreasonable conduct. Such conduct when followed by harm to another gives rise to liability for negligence.

There are two theories about negligence in the law of tort:-

a) Subjective Theory: According to this which makes a person to commit a, wrongful act. Negligence

means a conduct which creates a risk of causing damage rather than state of mind. This theory has

been supported denotes state of mind. This theory has been supported state of mind. This theory has

been supported by Austin, Salmond and Winfield.

b) Objective theory: According to this which makes a person to commit a, wrongful act. According to

this theory negligence is a type of conduct and not a particular state of mind. This theory treats

negligence as a specific tort. This theory has been recognized by the House of Lords in the case of

Donoghue v. Stevenson, where negligence has been treated as a specific tort.

Essentials of Negligence: In an action for negligence the plaintiff has to prove the following essentials

a. That the defendant owed duty to take reasonable care towards the plaintiff.

b. The defendant committed breach of that duty.

c. Plaintiff suffered damage as a consequence thereof:

1) Duty of care to the plaintiff: It means a legal duty rather than a mere moral, religious or social duty.

- The plaintiff has to establish that the defendant owed to him a specific legal duty to take care

of which he has made a breach.

- In Dononghue V. Stevenson, Citation (1932 AC 562).A purchased a bottle of ginger beer

from a retailer for the appellant a lady friend. The decomposed body of snail floated out with

ginger beer when it was poured into a tumbler. The appellant alleged that she seriously suffered

in her health in consequence of her having drunk part of the contaminated contents. The bottle

was of dark opaque glass and closed with a metal cap therefore the contents could not be

ascertained by inspection. She brought an action against the manufacturer for damages. The

House of Lords held that the manufacturer owed her a duty to take care, that the bottle did not

contain any noxious matter and that he would be liable for the breach of the duty. It was also held

that even though there was no contractual relationship between the manufacturer and the

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consumer, the consumer could bring an action and this case has done away with privity of

contract fallacy.

- Whether the defendant owes a duty to the plaintiff or not depends on foresee-ability of the

injury to the plaintiff. If at the time of the act or omission, the defendant could reasonably foresee

injury to the plaintiff he owes a duty to prevent that injury and failure to do that makes him liable.

- Duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to

do of which may have as its reasonable and probable consequence injury to others and the duty

is owed to those to whom injury may reasonably and probably be anticipated if the duty is not

observed.

- To decide culpability we have to determine what a reasonable man would have foreseen

and thus form an idea of how he would have behaved under the circumstances.

- In S. Dhanaveni V. State of Tamil Nadu the deceased slipped into a pit filled with rain water in

the night. He caught hold of a nearby electric pole to avert a fall. Due to leakage of electricity in

the pole he was electrocuted. The respondent who maintained the electric pole was considered

negligent and was held liable for the death of the deceased.

- If the conductor gives a bell to start the bus while a passenger is still on the footboard and the

driver tries to overtake a stationary bus very closely and the passenger gets squeezed between

the two buses, there is negligence on the part of both the conductor and the driver (Iswar Devi V.

Union of India) AIR 1969 del 183.

- Similarly, if the conductor of an overcrowded bus invited passengers to travel on the roof of

the bus and the driver swerves the bus to the right to overtake a cart and a passenger on the roof

is hit by the branch of a tree and falls down as a consequence of which he suffers serious injuries

and dies there is negligence on the part of the conductor and the driver (Rural Transport Service

V. Bezlum Bibi) (AIR 1974 MP68)

- In Sushma Mitra V. M.P.R.S.T Corp. the plaintiff while travelling in a bus going on the

highway was resting her elbow on the windowsill. She was injured when hit by a truck coming

from the opposite direction. Since the same could be foreseen, the driver of the bus and the

truck were held to be negligent and thus liable.

- If the school authorities negligently allow their infant pupil to run out on to busy highway and

the driver of a lorry in an attempt to save the child, himself crashes against a pole and is thereby

killed, the school authorities will be liable for the driver's death as the same can be reasonably

foreseen (Carmarthenshire Country Council V. Lewis.)

- If the defendant dig a ditch on the public road and do not provide any light, danger I signal,

caution notice or barricade they will be liable if a cyclist falls into the ditch in the darkness and is

injured thereby (Municipal Board Jaunpur V. Brahm Kishore). Similarly if the gates of a railway

crossing are open and a truck trying to cross the railway line is hit by an incoming train the

railway administration is liable for the same (Mata Prasad V. UOI).

- The position however would be different if the driver of the bus tries to cross through with a

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defective vehicle, knowing that the train is about to approach the place. In Orissa Road

Transport Co. Ltd. V. Umakant Singh, a passenger bus entered the level crossing when the

gateman was closing the gate. There was enough time for the bus to cross through but due to

some mechanical defect the bus became immovable while on the railway track and was hit by

an incoming train. As a consequence two of the passengers in the bus died and other got

injured. It was held that knowing about the starting trouble in the bus and still trying to cross the

level crossing when the train was about to approach was an act of negligence on the part of the

driver.

- The defendant will not be liable if damage is not Proximate or foreseeable:

- The duty to take reasonable care must be in respect of the particular conduct complained of.

- Hence, the liability of the defendant for negligence extends only to the injury or damage

which is proximate and foreseeable and is not too remote. This view finds support through a

number are mentioned have:-

- In Bowl hill V. Young (C1943) AC 92) the plaintiff, a fisher woman after alighting from a tram

com was taking out her fish basket from the driver's Cabin. While she was doing so, a speeding

motor cyelist passed on from the other side of the tram can and collided with a motor car and

was killed.

The claimant did not see the dead motor-cyclist nor the accident. She only heard a loud sound of

collision and when shock and one month later delivered a still born child. It was held that the

Motor cyclist did not owe any duty of care towards the plaintiff and therefore, his executors were

not liable for the injury caused to the claimant.

- In India a landmark decision involving mass disaster and mass tort action, the Supreme

Court in Union Carbide Corporation V. Union of India (AIR 1992 SC 248) popularly known as the

'Bhopal Tragedy Case', ruled that where the number of the people affected by the disaster

caused by the negligence of the defendants is so great that each claimant must be a plaintiff did

not seem to be practicable, a lumpsum award of settlement amount to be distributed among all

the sufferers may be ordered by the court.

The court in this case held that where the lumpsum amount awarded by the court was not

sufficient to compensate the claimants the government should supplement it. The case involved

numerous claims of loss of person, property, cattle and vegetable wealth of various categories

of persons living in Bhopal including men, women, children and even the unborn children who

were exposed to the toxic MIC gas which leaked from the union Carbide Unit of Bhopal in the

mid night of 2-3 December, 1984.

Reasonable Foreseeability does not mean Remote Possibility

- If a person suddenly comes before a fast moving vehicle and is hit thereby the driver of the

vehicle cannot be blamed for that. In Sukhraji V. SR. T Corporation Calcutta the plaintiff's son, a

boy of the 14 years got down from a moving tramcar and while he tried to cross the road he was

run over by an omnibus which was about to overtake the said tramcar. It was found that the boy

had got down without a stop from the tramcar and on seeing the boy in front of his bus, the driver

of the omnibus had applied the brakes with all his might but the boy could not be saved.

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Therefore the driver cannot be made liable for negligence.

- Similarly if a plug in a pipeline which has been working satisfactorily bursts because of

exceptionally severe frost which could not have been anticipated and the water floods the

premises of the plaintiff, the plaintiff cannot bring an action for negligence (Blyth V. Brimingham

Waterworks)

Duty in Legal & Medical Professions

- A person engaged in some particular profession is supposed to have the requisite

knowledge and skill needed for the purpose and he has a duty to exercise reasonable degree of

care in the conduct of his duties.

- The standard of the care needed in a particular case depends on the professional skill

expected from persons belonging to a particular class.

- If an Advocate does not pursue the case of his client and the same is dismissed in default

and even if thereafter the advocate fails to give necessary information to his client and the

matter in appeal is not pursued properly, the Advocate can be required to return the fees

received by him and pay further compensation to the client.

- A medical practitioner when consulted by a patient owes him the following duties:

i) A duty of care in deciding whether to undertake the case:

ii) A duty of care in deciding what treatment to give, and

iii) A duty of care in the administration of the treatment.

A breach of any of the above mentioned duties give a right of action for negligence to the patient.

In Dr. Lakhman Balkrishna Joshi V. Dr. Trimbak Bapu Godbole the son of the respondent aged about 20

years met with an accident on a sea beach, which resulted in the fracture of the femur of his left leg. He was

taken to the appellant's hospital for treatment. The appellant did not give anesthesia toJhe patient but

contended himself with a single dose of morphia injection and used excessive force in going through the

treatment using three of his attendants for pulling the injured leg of the patient. The treatment resulted in

shock causing the death of the patient. The doctor was held guilty of negligence by the Supreme Court.

Similarly, if due to the negligence of a doctor in performing the operation the patient dies, the surgeon or the

anesthetist would be liable for the same.

- Moreover, failure to perform an emergency operation to save the life of a patient amounts to

doctor's negligence (Dr. T.T Thomas V. Elissar).

- Similarly, if there is lack of life saving facilities and a well trained and qualified anesthetist is

not available as a consequence of which a patient dies the hospital authorities can be held liable

for the same (Rajmal V. State of Rajasthan)

Similarly, the hospital authorities can also be held liable for the negligence of nursing staff, which causes

leakage of catheter and also bed sores to the patient whereby the patient's death is hastened (M.L. Singhal

V. Dr. Pradeep Mathur).

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Similarly, if a newly born child is carried away by a cat in a Govt. run hospital and the child thereafter is found

in a bathroom with one eye ball totally gauged out and in profusely bleeding condition, the hospital

authorities would be liable for the same (Jasbir Kaur V. State of Punjab).

In AH Khodwa V State of Maharasthra the surgeon left a mop inside the abdomen of the patient after

sterilization operation; the doctor was therefore presumed to be negligent and for that the state was held

vicariously liable.

- Recently, in Indian Medical Association vs. VP Shanta, the Supreme Court recognized the

liability of medical practitioners for their negligence and held that the liability to pay damages for

such negligence was not affected by the fact that the medical practitioners are professional and

are subject to disciplinary control of medical council.

Please see the case of Indian Medical Association V.UP Santha (AIR 1996 SC 550)

2. Breach of Duty: Breach of duty means non-observance of due care which is required in a particular

situation.

- The standard of care is that of a reasonable man or of an ordinarily prudent man. In Blyth V

Birmingham Water Works it was held that negligence is the omission to do something which a

reasonable man, guided upon those considerations, which ordinarily, regulate the conduct of

human affairs, would do something, which a prudent and reasonable man would not do.

Standard of Care Required: The law requires taking of three points into consideration to determine the

standard of care required.

a) The Importance of the Object to be Attained: The law does not require greatest possible care but

the care required is that of a reasonable man under certain circumstances. The law permits taking

chance of some measure of risks so that in public interest various kinds of activities should go on.

In Latimer V. AT.C Ltd due to heavy rain a factory was flooded with water, which got mixed up with some

oily substance. After the water drained away the floors in the factory became slippery as the oily film

was left over it. The occupiers of the factory spread all the available sawdust but some oily patches still

remained there. The plaintiff slipped from one of those patches and was injured. The plaintiff sued the

defendants and contended that as a matter of precaution the factory should have been closed down.

The House of Lords held that the risk created was not so great as to justify the precaution. The

defendants had acted reasonably and therefore they were not liable. Similarly, if some orchard trees got

decayed due to the absorption of excess water from the canal through the roots, the state Govt. who

had constructed the canal for irrigation purposes could not be made liable for the same (K. Nagireddi. V.

Govt. of AP).

b) The Magnitude of Risk: The degree of care varies according to the likelihood of harm and

seriousness of injury. A person carrying a loaded gun is expected to take more precaution than a person

carrying an ordinary stick. Greater care is required in transporting inflammable and explosive material

than in transporting ordinary goods. Thus if a high tension electric wire snapped and resulted in the

death of a person due to electrocution the defendants who were maintaining the wire were held liable.

The fact that the wire snapped and also that it did not go dead after snapping proved that the wire was

not being maintained properly. (Nirmala V. T.N Electricity Board)

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- Similarly if the deliveryman of cooking gas company tried to open a gas cylinder by hitting its

cap with an excel hammer and that resulted in the leakage of gas and consequent fire the

defendant gas company could be made liable for the consequences thereof (Bhagwat Sarup V.

Himalaya Gas Co.)

- When there is some apparent risk due to abnormal conditions necessary care must be

taken to prevent the harm. Thus a driver has to take greater care when he finds a blind man or a

child or cripple crossing the road.

- In Surendra Shetty V. Sanjiva Rao it has been held that when a driver drives in a school zone

there is greater responsibility cast upon him to see that the speed of his vehicle is so controlled

as to be able to stop the vehicle within a moment's notice.

- When visitors to a public place include children, necessary care towards them has to be

taken. In Glasgow Corporation V. Taylor poisonous berries were grown in a public garden under

the control of defendant's corporation. The berries looked like cherries and thus had tempting

appearance for the children. A child aged seven ate those berries and died. It was found that the

shrub bearing the berries was neither properly fenced nor a notice regarding the deadly

character of the berries was displayed. It was held that the defendants had not taken proper

care and therefore they were liable.

- In Smt. Shivkar V. Ram Naresh two teachers accompanied by a group of 60 boys went to a

picnic. Both the teachers started taking meals at the same time and one boy aged 12 years was

drowned. It was held that the teachers were negligent, as they did not take proper care of the

boys.

- Similarly, providing a boat to cross a river, which is famous for furious current without

providing life saving device in the boat amounts to negligence and if a passenger is drowned the

defendant would be liable for the same (State of Bihar V. S.K. Mukherji)

c) The Amount of Consideration for which Service etc are Offered: The degree of care depends

also on kind of services offered by the defendant and the consideration charged thereof from the

plaintiff, for example, one who purchases a glass of water from a trolley in the street for 10 or 25 paisa is

entitled to safe drinking water which should not ordinarily infect him. But if a person purchases a mineral

water bottle for Rs. 10 or Rs. 15 then he can justifiably demand higher degree of purity.

Similarly, a luxury hospital has to offer higher degree of care to its patient than a hospital admitting a

patient in the general ward. In Klaus Miltelbachert V. East India Hotels Ltd. a German visitor to a 5 star

hotel in New Delhi got serious injuries and suffered paralysis and ultimate death when he dived in a

defective swimming pool in the hotel. He was awarded 50 Lac rupees as damages. Held that because

of a high rate of charges by the hotel it was expected to offer a very high degree of care to its visitors.

3. Damage: It is also necessary that the defendant's breach of duty must cause damage to the

plaintiff. The plaintiff had also to show that the damage thus caused is not too remote a

consequence of the defendant's negligence. The damages caused to the plaintiff should not be too

remote, that is there should be reasonable proximity between the act of negligence and the

resultant damage. The court should not be unduly liberal in awarding the damages nor should it be

too inadequate. It should be reasonable determined so as to satisfy both the parties. The plaintiff as

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also the defendant.

BURDEN PROOF NEGLIGENCE (RES IPSA LOQUITOR): As a general rule it is for the plaintiff to prove

that the defendant was negligent. The initial burden of making out at least a prima-facia case of negligence

as against the defendant lies heavily on the plaintiff but once this onus is discharged it will be for the

defendant to prove that the incident was the result of inevitable accident or contributory negligence on the

part of the plaintiff.

- There are, however, certain cases when the plaintiff need not prove that, and the inference

of negligence is drawn from the facts. There is presumption of negligence according to the

maxim 'Res Ipsa Loquitor' which means the 'thing speaks for itself'.

- When the accident explains only one thing and that is that the accident could not ordinarily

occur unless the defendant had been negligent, the law raises a presumption of negligence on

the part of the defendant. In such a case it is sufficient for the plaintiff to prove accident and

nothing more.

- For the maxim res ipsa loquitor to apply it is also necessary that the event causing the

accident must have been in the control of the defendant. Thus when 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 in such case does not

occur in the ordinary course of things without negligence on defendant's part, the maxim applies

and the burden of proof is shifted from to plaintiff to the defendant. Instead of the plaintiff proving

negligence the defendant is required to disprove it.

- In Municipal Corporation of Delhi V. Subhagwanti. the clock tower belonging to the

Municipal Corporation of Delhi, which was situated in the heart of city fell and caused the death

of a number of persons. The Supreme Court held that the fall of clock tower tells its own story in

raising an inference of negligence on the part of the defendant. Since the defendants could not

prove absence of negligence on their part they were held liable.

- In Nirmala V. T.N. Electricity Board, such a presumption was raised when a high-tension

electric wire snapped and it did not become dead on being snapped as a consequence of which

one person died of electrocution.

- In Karnataka State Road Transport Corporation V. Krishna in an accident the two buses

brushed each other in such a way that the left hands of two passengers traveling in one of these

buses were cut off below the shoulder joint. It was held that the accident itself speaks volumes

about the vehicles. The doctrine of Res. Ipsa Loquitor was applied to the case and in the

absence of any satisfactory explanation the defendant was held liable.

- In Agya Kaur V. Pepsu Road Transport Corporation a rickshaw going on the correct side was

hit by a bus coming on the wrong side of the road. The speed of the bus was so high that it, after

hitting the rickshaw also hit an electric pole on the wrong side. It was held that from these facts

the only inference which would be drawn was that the driver of the bus was negligent. The

defendant corporation was held liable. (C 1863) 2 H & C 722)

- In Byrne V. Boadle the plaintiff was going in a public street when a barrel of flour fell upon him

from the defendant's warehouse window. Want of care was presumed and it was for the

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defendant to show that there was not want of care on his part for the barrels do not usually fall

out from window unless there is want of care.

Limitations: Limitation of the Doctrine of Res ipsa Loquitur –

1. The rule has no application in all the cases of accidents or mishaps. It applies when the cause of

accident or mishap lies solely within the knowledge of the defendant or it is under the control of the

defendant or his employee or servant.

2. It is not a presumption of law in negligence cases but only a rule of evidence which is capable of

being rebutted by the defendant.

3. The rebuttal of negligence by the defendant does not necessarily absolve him from liability because

in that case the plaintiff may still choose to prove the negligence of the defendant and succeed.

4. Where the maximum applies, the plaintiff is only to prove the occurrence of the accident or mishap

leaving it for the defendant to prove that he was not negligent that is, he exercised due care and

caution but despite that, the incident occurred. He may explain to the satisfaction of the Court as to

how the accident occurred without negligence on his part.

5. Nervous shock: Many cases of damage or injury caused due to mental distress was far more

greater than the physical posed before the courts in recognising nervous shock as an actionable tort

was that in the absence of adequate medical or scientific evidence (at that time) how could it be

ascertained that the injury complained of by the plaintiff is really the consequence of mental distress

suffered by him. Since physical injuries are ostensibly visible but it is not so with mental injury,

therefore, the Courts were reluctant to extend judicial recognition to nervous shock as an actionable

wrong.

Downtown (1910) 2 KB 669 the earlier view that injury unaccompanied by physical injury was not

compensable at all was discarded, both for intentional wrong doing and for negligence. However, the Privy

Council as far back as 1888 emphasised the need for judicial recognition to nervous shock sustained

through the medium of eye or ear without direct contact.

The scope of liability for nervous shock has been enlarged in the decision of Page V.smith (1996 AC 155) by

the House of Lords. In this case the plaintiff was involved in a collision caused by the defendant's

negligence which resulted property damage but no estensible physical injury. The House of Lords held that

"mental injury caused to the plaintiff was but a variety of the broader genus of personal injury which was

plainly foreseeable and therefore, the plaintiff was entitled to recover".

In India the High Court of Madras in Halliguva V. Mohansundram (19512 MLJ 471) observed that in the

present age award of damages only for physical injury and its negation for psychiatric illness or mental

shock is not justified as the entire body movement are controlled by human mind, that is brain.

Therefore, any obstruction or damage to mental order must be recognized and equated to that of a physical

injury for which damages are awardable.

In the case of Lucknow Development Authority V.M.K.Gupta (AIR 1944 SC 786) Supreme Court of India

held that where any officer or public authority of the Government causes inconvenience and mental

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distress to any person or persons due to its malicious and oppressive act, he may be held personally liable

to pay damages, or the state may be held vicariously liable.

It may be concluded that it is rather difficult to set out definite principles on law relating to nervous shock and

the law will continue to be developed by the

Courts through their judicial decisions.

In India the law relating to nervous shock has developed on the common law pattern followed in England. It

has now been well settled that illness due to nervous shock is actionable irrespective of the actual bodily

harm or present injury. In a suit for damages for injury resulting from mental shock, the damages must be

the natural and probable consequence of the defendant's negligence or intentional wrongful act. The test to

be applied to decide the award of damages should to take into consideration the likely impact of the

defendant's act on a person with normal health and mental-frame and not a supersensitive psychopath or

person having mental infirmity.

Contributory Negligence:

- Contributory Negligence means negligence of the plaintiff in not avoiding the consequence

arising from the defendant's negligence, when plaintiff has opportunity to do so. In other words

non-exercise by the plaintiff of such ordinary case, diligence, and skill, as would have avoided

the consequence of the defendant's negligence. In conclusion both the parties (plaintiff and

defendant's) are negligent in contributory negligence.

- According to Lord Halsbury the rule of contributory negligence is based on the maxim, in

pari delicto potior est condition defendantis" which means both parties are equally to blame,

neither can hold the other liable. But the question arises where both the parties are not equally

at fault then what is the criteria of holding the defendant liable. In that case the damages

awarded to a plaintiff should be reduced to the extent of his contribution to defendant's act of

negligence.

- The first historic case of contributory negligence was butterfield Vs. Forrester (1809) 11

East 60).

- In this case, the defendant had wrongfully put a pole across a highway which could be easily

visible from a distance of 100 yards but the plaintiff was ridding violently on the road came

against the pole and was overthrown and fell with the horse and got seriously injured. He sued

the defendant for damages. Dismissing the petition, court observed, that had the plaintiff used

ordinary case, he could have easily seen the obstruction, as such the accident happened

entirely due to plaintiff's own fault.

- The rule laid down in this case, therefore, mean that slightest negligence on the part of the

plaintiff will deprive him of his claim for damages through the negligence of the defendant may

have been the main cause of damage or injury to him.

- The common law rule as laid down in butterfield V. Forrester was criticized on the ground of

illogical and unjust as the law of the defendant as it is conferred him complete immunity from

liability against the plaintiff's claim for damages.

But later on it was realised that undue protection to defendants against injuries caused to the plaintiff by

their wrongful acts was not at all justified. The court modified the law relating to contributory negligence and

substituted it by what was later known as the "'last opportunity rule" as laid down in Devis v. Mann (1842) 10

MW 546) also known as the 'Donkey case'. In this case, the plaintiff left his donkey loose on the side of a

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highway with its forefeet tied. The defendant was driving his horse wagon negligently in high speed which

hit the donkey and it was killed. The court found that the defendant's negligence was the proximate and

immediate cause as he could have easily reduced the speed of his wagon seeing the donkey grazing

reduced the speed of his wagon seeing the donkey grazing near the highway with its forefoot fettered.

Though the plaintiff was also negligent in leaving his donkey with its forefeet tied up near the highway but he

was held entitled to recover because the defendant had the "last opportunity" to avoid the accident. The rule

of last opportunity may be explained as: Although the plaintiff is guilty of negligence, yet by use of ordinary

care and diligence have avoided the mischief which happened. The plaintiff's negligence will not excuse

him.

The last opportunity, rule was criticized later on and where some damage has been caused due to fault of

two or more vessels, the liability to fault of two or more vessels the liability to compensate and pay damage

was to be in proportion to the degree in which each vessel was at fault. In other words both the parties

should been the loss in proportion to their respective degree of fault.

In order to remove the difficulties an Act called Law Reform (contributory Negligence Act, 1945 was passed

in England which provided that in the cases of contributory negligence the claim of the plaintiff for damages

shall not e dismissed out right but the quantum of his damages will be reduced in proportion to the extent of

his fault.

The rule of apportionment of damages was found to be a substitute of last opportunity rule which suffered

from certain obscurities. Under this rule of apportionment the liability is determined not on the basis as to

who had the last opportunity of avoiding the accident but it depended on the fact that whose act caused the

wrong.

- In India there is no Central Legislation corresponding to the Law Reform (Contributory

Negligence) Act, 1945.

- However, in various cases the doctrine of apportionment of damages on the line of Law

Reform Act has been followed.

- In Rural Transport V. Bezlum Bibi as there was contributory negligence on the part of plaintiff

for traveling on roof, the compensation payable was reduced to 50%.

- In Subhakar V. State Road Transport Corp. the court reduced the compensation payable to

the extent the claimant was himself at fault.

- There the claimant appellant who was going on a cycle suddenly turned to the right side of

the road. He was hit by respondent bus resulting in his fall and injury to his leg necessitating nd

hospitalization for about 2 months. Held that both parties had equally contributed to the

accident and therefore compensation payable to claimant was reduced to 50%

PRINCIPLES OF LIABILITY IN TORT

Strict, Absolute and Vicarious Liability

A person could be made liable in any kind of tort only when he was negligent or committed an intentional

tort. But in this chapter strict liability has been discussed where a person is made liable even if he is neither

negligent nor willfully commits a Tort. Strict liability is an exception in the law of tort when the liability of a

person arises even if he is not fault. This rule of liability was first laid down by justice Black burn in 1868 in

the case of Rylands V. Fletcher (1868 LR 3HL 330).

But justice Black burn himself created exceptions after laying down the rule of absolute liability. It was,

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therefore, a mistake on the part of Justice Blackburn in using the word "absolute" liability. Winfield has

corrected that mistake and suggested that it should be called "strict" liability. Since then it is properly

regarded as a rule of "strict liability".

The Rule of Strict Liability: The rule of Strict liability was formulated in 1868 by the House of Lords in

Rylands V. Fletcher.

- This is also known as the rule of Rylands V. Fletcher which laid down the rule recognizing no

fault liability.

- Under this rule the defendant is liable for the harm even though the same is unintentional

and also without any negligence on the part of the defendant.

- In this case the defendant got a reservoir constructed through independent contractors over

his land for providing water to his mill. There were old disused shafts under the site of the

reservoir, which the contractors failed to observe and so did not block them. When the water

was filled in the reservoir it burst through the shafts and flooded the plaintiff's coalmines on the

adjoining land. The defendants did not know of the shafts and had not been negligent although

the independent contractors had been. Even through the defendants had not been negligent

they were held liable on the basis of rule laid down in this case.

- According to the rule if a person brings on his land and keeps there any dangerous things

Le. a thing which is likely to do a mischief if it escapes, he will be prima-facie answerable for the

damages caused by its escape even though he had not been negligent in keeping it there.

- For the application of the rule, therefore the following three essentials should be there :-

1. Some dangerous thing brought or collected by a person on his land.

2. Escape of the thing collected.

3. Non-natural use of land.

1) Dangerous Thing: The thing collected should be capable of doing mischief by escape. The rule

has been applied to water, gas, electricity, poisonous trees, sewages, explosives, noxious fumes,

etc.

2) Escape: For the rule in Rylands v. Fletcher to apply it is also essential that the thing causing the

damage must escape to the area outside the occupation and control of the defendant. Thus if there

is projection of the branches of poisonous trees on the neighbor's land, this amounts to an escape

and if the cattle lawfully there on the neighbor's land are poisoned by eating the leaves of the same,

the defendant will be liable under the rule. But if the plaintiff's horse intrudes over the boundary and

dies by nibbling the leaves of a poisonous tree there the defendant cannot be liable because there is

no escape of the vegetation in this case.

3) Non-Natural Use of Land: Water collected in the reservoir in such a huge quantity in Rylands V.

Fletcher was held to be non-natural use of land. Keeping water for ordinary domestic purposes is

natural use. For the use to be non-natural "it must be some special use bringing with it increased

dangers to others and must not merely be the ordinary use of land". For example, in Noble V.

Harrison it has been held trees (non-poisonous) on one's land are not non-natural use of land and if

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the branches of trees which over hung on the highway suddenly broke and fell on plaintiff's vehicle,

the defendant could not be made liable because growing tree is not non¬natural use of land.

However, growing of a poisonous tree is non-natural use of land and if the animal on the neighbor's

land nibbles the leaves of such trees and dies the defendant will be liable under the rule.

It is no defence to the application of this rule that the act causing damage had been done by an

independent contractor. In Rylands V. Fletcher itself the defendants were held liable even though they

had got the job done from independent contractors.

Exception to the Rule

1. Plaintiff's Own default: Damage caused by escape due to the plaintiff's own default was

considered to be a good defence in Rylands V. Fletcher itself. If the plaintiff suffers damage

by his own intrusion into the defendant's property, he cannot complain for the damage so

caused.

- In Ponting V. Noakes, the plaintiff, horse intruded into the defendant's land and died after

having nibbled the leaves of a poisonous tree there. The defendant was held not liable because

damage would not have occurred but for the horse's own intrusion to the defendant's land.

2. Act of God: If the escape has been unforeseen and because of supernatural forces without

any human intervention, the defence of Act of God can be pleaded.

- 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 (Nichols V. Marsh Land).

3. Consent of the Plaintiff: In case of Volenti non-fit Injuria I.e. where the plaintiff has

consented to the accumulation of the dangerous thing on the defendant's land the liability

under the rule does not arise.

- Such consent is implied where the source of danger is for the common benefit of both

plaintiff and the defendant.

- When water has been collected for the common benefit of the plaintiff the defendant will not

be liable for the escape of such water unless there is negligence on his part.

4. Act of Third Party: If the harm has been caused due to the act of a stranger who is neither

defendant's servant nor the defendant has any control over him the defendant will not be

liable under this rule.

- Thus in Box V. Jubb the overflow from the defendant's reservoir was caused by the blocking

of a drain by strangers. The defendant was held not liable for that.

5. Statutory Authority: An act done under the authority of a statute is a defence when the

action is under the rule in Ryland V. Fletcher. Smith v London and South western Rly Co.

Position in India

- The rule of strict liability is as much applicable in India as in England.

- In India, however, certain deviations have been made both extending as well as limiting the scope of

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the application of no-fault liability.

- The Motor Vehicles Act, 1988 recognizes liability of the owner or the insurer of the vehicle without

proof of any negligence on the part of either the driver or the owner of the vehicle.

Similarly, the liability of the railways and roadways in respect of carriage of goods has been held of

the insurer after the amendment. It means they could be made liable even without the proof of fault

or negligence on their part.

The rule of Absolute liability (The rule in M.C Mehta V. Union of India, AIR 1987 SC 965) was laid

down by Bhagwati C.J. In this case there was leakage of oleum gas from one of the units of Sriram

Food and Fertilizer Industries in the city of Delhi on 4th and 6th December 1985, resulting in the

death of an advocate practising in Tishazari court and several others were affected by the same.

The action was brought through a writ petition under Article 32 of the Constitution by way of public

interest litigation.

- The court found that the victims of the leakage of dangerous substances like that could not be

provided relief by applying the rule of Strict Liability laid down in Ryland V. Fletcher because they

could escape liability for the havoc caused thereby pleading some exception to the rule in Rylands

V. Fletcher. For instance, when the escape of the substance causing damage was due to the act of a

stranger, say due to sabotage, there was no liability under that rule.

- The Supreme Court held that it was not bound to follow the 19th Century rule of English Law and it

could, evolve a rule suitable to the social and economic conditions prevailing in India. It evolved the

rule of Absolute liability. It expressly declared that the new rule was not subject to any of the

exceptions under the rule in Ryland V. Fletcher.

- According to this rule when an enterprise is engaged in a hazardous or inherently dangerous

industry which poses a potential threat to the health and safety of the persons working in the factory

and residing in the surrounding areas it owes an absolute and non-delegable duty to the community

to ensure that no harm results to anyone from such activity. The activity must be conducted with

highest standard of safety and if any harm results to anyone the enterprise must be absolutely liable

to compensate for such harm and should not be allowed to avoid liability by pleading that it was not

negligent. Further, such liability is not subject to any of the exceptions which operate vis-a-vis the

tortious principle of strict liability under the rule in Rylands V. Fletcher.

- The court also laid down that the measure of compensation payable should be correlated to the

magnitude and capacity of the enterprise so that the same can have the deterrent effect.

Vicarious Liability

Vicarious liability, that is the liability of one person for the act done by another person may arise in certain

cases. In order that the liability of A for the act done by B can arise it is necessary that there should be a

certain kind of relationship between A and B and the wrongful act should be in certain way, connected with

that relationship. The common examples of such liability are:

1. Liability of the principal for the tort of his agent.

2. Liability of partners for each other's tort

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3. Liability of the master for the tort of his servant.

1. Principal and Agent: Where one person authorizes another to commit a tort, the liability for that will

be not only of that person who has committed it but also of that who authorized it.

- It is based on the general principle "Qui Facit per aliums facit per se" which means that the

act of an agent is the act of the principal.

- For any act authorized by the principal and done by the agent both of them are liable.

They are considered to be joint tortfeasors and their liability is joint and several.

- The authority to do the act may be express or implied. When an agent commits a tort in the

course of performance of his duty as an agent the liability of the principal arises for such a

wrongful act.

In Lloyd V Grace Smith and Co. Mrs. Lloyd approached the office of Grace Smith and Co. a firm

of solicitors to consult them about the matter of her property i.e. two cottages. The managing

clerk of the company advised her to sell the cottages. He fraudulently made Mrs. Lloyd to sign

documents which were supposed to be sale deeds but which in fact were gift deeds in the name

of the managing clerk of the company. He then disposed of the property and misappropriated

the proceeds. It was held that since the agent was acting in the course of his apparent or

ostensible authority the principal was liable for the fraud.

For the purpose of vicarious liability even a friend driving my car for me may be my agent. In

Ormrod Crossville Motor Service Ltd. the owner of the car asked his friend to drive the car. The

car collided with a bus while being driven by him. The owner of the car was held liable.

2. Partners

- The relationship as between partners is that of principal and agent. The rules of the law of

agency apply in case of their liabilities also.

o For the tort committed by any partners in the ordinary course of the business of the firm, all

other partners are liable to the same extent as the guilty partner.

o The liability of each partner is joint and several.

o In Hamlyn V. Houston & Co. one of the two partners of the defendant's firm bribed plaintiff's

clerk and induced him to make a breach of contract with his employer by divulging secrets

relating to his employer's business. It was held that both the partners of firm were liable for

this wrongful act committed by only one of them.

3. Master and Servant

- If a servant does a wrongful act in the course of his employment, the master is liable for it

along with the servant.

- The wrongful act of the servant is deemed to be the act of the master as well.

- The doctrine of liability of the master for act of his servant is based on the maxim respondent

superior, which means "let the principal be liable" and it puts the master in the same position as if

he had done act himself. It also derives validity from the maxim 'qui facit per alium facit perse.

- Since for the wrong done by the servant the master can also be made liable vicariously, the

plaintiff has a choice to bring an action against either or both of them.

For the liability of the master to arise the following two essential are to be present.

1. The tort was committed by the servant.

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2. The servant committed the tort in course of his employment.

Servant: A servant is a person employed by another to do work under the direction and control of his

master.

Servant and Independent Contractor: Servant is an agent who is subject to control and supervision of his

employer regarding the manner in which the work is to be done, whereas an independent contractor is not

subject to any such control. He undertakes to do certain work and regarding the manner in which the work to

be done, he is his own master and exercises his own discretion, e.g., my car driver is my servant. If he

negligently drives down X, I will be liable for that but if I hire a taxi for going to railway station and the taxi

driver negligently hits X, I will not be liable towards X because the taxi driver is not my servant but only an

independent contractor.

Liability of Vehicle Owner: There is no liability of the vehicle owners in case the accident is caused by

mechanics, repairers or owners of workshop in test drive of vehicles entrusted to them by the owner of the

vehicles for repairs.

In B. Govindarajulu V. M.L.A Govindaraja a motor lorry was entrusted by its owners for repairs, while an

employee of the repair workshop drove it, there was an accident. It was held that for this accident the owner

of the lorry was not liable vicariously because the owner of the workshop was an independent contractor

and not the servant of the lorry owner.

Exception: The general rule that an employer is not liable for the acts of an independent contractor is

subject to some exceptions. In the following exceptional cases employers can be made liable for the

wrongs of the independent contractor:-

1) If an employer authorizes the doing of an illegal act or subsequently ratifies the same, he can be

made liable for such an act because the employer himself is a party to the wrongful act along with the


2) An employer is liable for the act of an independent contractor in cases of strict liability. In Rylands V

Fletcher the employer could not escape the liability for the damage caused to the plaintiff when the

escape of water from a reservoir got constructed by the defendant from an independent contractor

flooded the plaintiff's coalmine.

Similar is the position in the case of extra hazardous work which has been entrusted to an independent

contractor and in a case of breach of statutory duty. (Maganhai V Ishwarbhai)

3) If the wrong caused to the plaintiff is nuisance in the form of withdrawal of support from the

neighbor's land the defendant would be liable irrespective of the fact that the act is done by independent

contractor.

Hospital Case: Servants not under control of master :

Though generally a servant is under the control of his master regarding the manner of his doing the work

there are various cases in which the master does not or cannot control the way in which the work is to be

done for example the captain of a ship or surgeon in a hospital.

Earlier the position was that employer would not be vicariously liable for the negligence of the professional

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staff involving professional care and skill because he lacked the power of control over them. That position

no more holds goods and now the hospital authorities are liable for the professional negligence of their staff.

Lending a Servant to Another Person

In case the master lends his servant to another person and the servant commits tort the question of

vicarious liability depends on the main consideration as to who of the two masters has the authority to tell

the servant not only what is to be done by him but the way in which he is to work.

In Mersy Docks V Coggins a harbour board who owned a number of mobile cranes let out the cranes along

with drivers to certain stewards for loading a ship. Due to the negligence of the driver while loading a ship, X

was injured. It was held that the harbor board who was the general and permanent employer of the driver

was liable to X because although 'at the time of accident the stewards had immediate control over the crane

driver, they had no power to direct as to how the crane was to be operated. In case of hiring, a presumption

has been generally raised that there is only transfer of services rather than that of the servant.

Casual Delegation of Authority

For the purpose of vicarious liability it is not necessary that there must be a long-term master servant

relationship. Even when a person for a single transaction authorizes another to do something for him and

the latter does it negligently the former can be made liable for the same.

The Course of Employment

The liability of a master is not limited only to the acts which he expressly authorizes to be done but he is

liable for such torts also which are committed by his servant in the course of employment. An act is deemed

to be done in course of employment if it is either:-

1) A wrongful act authorized by the master, or

2) A wrongful and unauthorized mode of doing some act authorized by the master.

However, for an unauthorized act the liability arises if that is within the course of employment i.e. it is a

wrongful mode of doing what has been authorized.

E.g., - If I authorize a servant to drive and he drives negligently or I authorize a servant to deal with the

clients and he deals with them fraudulently, each one of these acts is within the course of employment as

they are authorized by the master even though the mode of doing is wrongful.

Fraud of Servant: When a servant while in the course of the performance of his duties as such commits a

fraud the master would be liable for the same.

In Lloyd V. Grace Smith & Co. the House of Lords held that when a servant is acting in the course of the

business the master will be liable even though the servant was acting for this own benefit rather than that of

master.

Theft by Servant: Theft of goods bailed to the master:

In chesire V. Bailey it was held that if the servant committed theft of a third person's property which had been

bailed to the master the master could not be vicariously liable for the same but Morris vs. C.W. Marten &

Sons Ltd. Overruled this decision. In this case it was held that theft if coat by servant which 'was entrusted

for cleaning was wrongful act done is the course of employment and the master will be held vicariously

liable for the theft.

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However, the position would be different if the goods in possession of the master by way of bailment are

stolen by a servant to whom the goods had not been entrusted. In such a case the theft by the servant would

be an act outside the course of his employment and master cannot be made liable for the same.

Mistake of Servant: Where a servant having a lawful authority to do some act on behalf of his master

makes an erroneous or excessive use of the authority causing loss to the plaintiff the master will be liable for

the same. A servant has an implied authority to protect the property of his master. If a servant in an attempt

to perform such a duty uses excessive force the act will fall in the course of employment.

In Poland V Parr & Sons a carter suspected on mistaken but reasonable grounds that some boys were

pilfering sugar from his employer's wagon. In order to prevent the theft and protect the employer's property

he struck one of the boys. The boy fell, was run over by the wagon and consequently lost his leg. The act of

carter, though excessive was not so much excessive that the same could be considered to be outside the

class of acts, which the servants had an authority to do. The master was therefore held liable for the same.

Negligence of Servant: If a servant is not careful in the performance of his duties and his conduct causes

any loss to a third party the master would be liable for the same.

Negligent Delegation of Authority by the Servant: If a servant negligently delegates his authority and

instead of himself carefully performing a duty allows it to be negligently performed by another person the

master will be liable for such negligence of the servant. Thus if a driver instead of himself driving the bus,

allows somebody else to drive the same it would amount to negligent mode of performance of the duty by

the driver. If that person, whom the driver has thus authorized to drive makes an accident the master will be

liable for the consequences.

Effect to Express Prohibition: Sometimes the employer forbids his servant from doing certain acts. It

does not necessarily follow that an act done in defiance of the prohibition is outside the scope of

employment.

If prohibition were to be a defence every employer would escape the liability by issuing orders to his

servants forbidding them for committing any tort.

In Limpus V London General Omnibus Co. the defendant's driver in defiance of the express instruction not

to race with or cause obstruction to other omnibuses tried to obstruct rival omnibus and thereby caused an

accident. The driver had been engaged to drive and his act was negligent mode of driving and it was held to

be within the course of employment in spite of the express prohibition. The defendant company was held

liable.

Vicarious Liability of the States

England: At common law the king could not be sued in tort either for wrong actually authorized by it or

committed by its servants in the course of their employment. Moreover, no action would lie against the head

of the department or other superior official for the acts of their subordinates for relationship between them

was not of master and servant but of fellow servants.

However, the position has been entirely changed after the passing of the Crown Proceeding Act, 1947. Now

the Crown is liable for a tort committed by its servant just like a private individual.

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India

- Unlike the Crown Proceeding Act 1947 we do not have any statutory provision mentioning

the liability of the state in India. Article 300 provides that the Union of India and the States are

juristic persons for the purpose of suit or proceedings. Although the Union of India and State

Govt. can sue and be sued the circumstances under which that can be done have not been

mentioned.

- To know whether the state is liable for a particular act or not the position of East India

Company prior to 1868 is to be seen.

- In Peninsular and Oriental Steam Navigation Company V. Secretary of State for India a

distinction was drawn between the sovereign and non-sovereign functions of the East India

Company. It was held that if the act was done in the exercise of sovereign function the East India

Company would not have been liable but if the function was a non-sovereign one Le. which

could have been performed by a private individual without any delegation of power by the Govt.

the Company would have been liable.

- In the above case, maintenance of dockyard was considered to be non-sovereign function

and therefore for the negligence of its employees the Govt. was held liable.

- In the Secretary of State for India in Council vs. Hari Bhanji it was stated that towards its own

subjects the state should be liable just like an ordinary employer.

- In 1965 the Supreme Court considered the question in Kasturilal V. State of UP and decided

that if an act of the Govt. servant was done in exercise of sovereign power the State should be

exempt from liability. By this the SC overruled its earlier ruling in State of Rajasthan V. Vidyawati

where it was held that State should be liable just like an ordinary employer.

- Famine relief work or taking children to primary health centre are non-sovereign functions

and therefore the state has been held liable for tort committed by a Govt. servant while

performing these functions.

Whereas maintenance of law and order is a sovereign function and the state is not liable for the excess

committed by police personnel while discharging their duties. Thus if the plaintiff is injured while police

personnel are dispersing unlawful crowd or plaintiff's loudspeaker set is damaged when the police makes a

lathi charge to quell the riot, the state cannot be made liable for the same.

Kasturilal Bypassed: There has been significant change in the judicial trend in so far as the courts have

bypassed Kasturilal and have awarded compensation under the circumstances when the state would have

been exempt from liability if Kasturilal had been followed but in today's context the liability of the State in

India is the same as was that of East India Company prior to the year 1858. Kasturilal case still holds good.

In State of Gujarat V. Menon Mohomed the Supreme Court held the state liable when the custom

authorities who had seized certain vehicles on the charge of smuggling and disposed them off before the

revenue tribunal set aside the order of confiscation and ordered the return of those vehicles.

Similarly, if the stolen property recovered by the police was not kept carefully and it got stolen again, the

State was held liable for the same.

In the case of Nagenda Rao V.State of Andhra Pradesh (AIR 1994 SC 2663) the supreme Court held that

the doctrine of sovereign immunity would not be applicable where the act of govt. function arises is

manifestly illegal an arbitrary. In this case, a huge quantity of fertilizers and food grains was seized under

the Essential Commodities Act, 1955 by the Police officials of the Vigilance Department. Despite specific

orders by the court to dispose of the seized fertilizers and food grain no steps were taken by the concerned

officials as a result of which the fertilizer detoriated and was rendered useless causing huge loss to the

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appellant. The court held that the state Govt. vicariously liable and ordered payments as compensation to

the appellant.

Sovereign and non-sovereign functions are redundant in the modern welfare state. The doctrine of

sovereign immunity emanting from British legacy has been put down by the higher courts through their

judgments over the past few years. In cases it has been rightly held that in a welfare state like India, it must

be ensured that the States executive power should not flow from the 'law' but it should also be limited by the

law it makes, thus accountability should be the essence of modern law.

DEFENCES

When the plaintiff brings an action against the defendant for a particular tort the defendant would be liable

for the same. The defendant may, however, avoid his liability by taking the plea of some defence. There are

some particular wrongs e.g. in an action for defamation the defence of privilege, fair comment or

justification are available. There are some general defences which may be taken against action for a

number of wrongs. They are called General defences.

The General Defences are:

1. Volenti Non-fit Injuria (voluntary assumption of risk)??

To a willing person no injury is done.

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 for that

and his consent serves as a good defence against him.

Consent to suffer the harm may be express or implied (In Doctor patient case consent is implied)

The consent may be implied or inferred from the conduct of the parties. For example, a player in the games

of cricket or football is deemed to be agreeing to any hurt, which may be likely in the normal course of the

game.

For the defence of consent to be available the act causing the harm must not go beyond the limit of what has

been consented. A player in a game of hockey has no right of action if he is hit while the game is being

lawfully played. But if there is a deliberate injury caused by another player, the defence of volenti cannot be

pleaded.

In Hall Vs Brooklands Auto Racing Club the plaintiff was a spectator at a motorcar 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 being 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

consents to the act done by the defendant as 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.

Thus if you invite some person to your house you cannot sue him for trespass when he enters

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your premises.

- When a person is incapable of giving his consent because of his insanity or minority consent

of such person's parent or guardian is sufficient.

Consent Obtained by Fraud: Consent obtained by fraud is not real and that does not serve as a good

defence. In the Irish case of Hegarty V. Shine it has however been held that mere concealment of facts may

not be such a fraud as to vitiate consent. There the plaintiff's paramour had infected her with venereal

disease and the therefore brought an action for assault. The action failed partly on the ground that mere

non-disclosure of the disease by the plaintiff was such a fraud as to vitiate consent and partly on the ground

of ex turpi causa non oritur actio (It means that from an immoral cause no action arises).

Consent Obtained Under Compulsion

- Consent given under such circumstances when the person does not have freedom of

choice is not the proper consent. A person may be compelled by some situation to knowingly

undertake some risky work which if he had a free choice he would not have undertaken.

- The situation generally arises in master-servant relationship. The servant may sometimes

be faced with the situation of either accepting the risky work or losing the job.

Mere knowledge does not imply assent:

For the maxim volenti non-fit injuria to apply two points have to be proved -

a) The plaintiff knew that the risk is there.

b) He knowing the same agreed to suffer the harm.

In Bowater V. Rowley Regis Corporation the plaintiff, a car driver was asked by the defendant's foreman to

drive a horse with the knowledge that horse was liable to bolt. The plaintiff protested but alternately took out

the horse in obedience to the order. The horse bolted and the plaintiff was injured thereby. Held the maxim

volenti non-fit injuria did not apply and the plaintiff was entitled to recover damages.

If a workman ignores employer's instruction and contravenes statutory provisions thereby causing damage

to himself, he can certainly be met with the defence of volenti non-fit injuria.

Limitations on the Scope of Doctrine: The scope of application of the doctrine volenti non-fit injuria has

been curtailed in rescue cases.

Rescue Cases

- Rescue cases form an exception to the application of the doctrine of 'volenti non fit injuria'.

When the plaintiff voluntarily encounters a risk to rescue somebody from an imminent danger

created by the wrongful act of the defendant he cannot be met with the defence of volenti non fit

injuria.

- Haynes V. Harwood is an important authority on this point. In that case defendant's servant

left a two-horse van unattended in a street. A boy threw a stone on the horses and they bolted

causing grave danger to women and children on the road. A police constable, who was on duty

inside a nearby police station, on seeing the same, managed to stop the horses but in doing so

he himself suffered serious personal injuries. It being a rescue-case, the defence of volenti non-

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fit injuria was not accepted and the defendants were held liable.

- It was held that the doctrine of the assumption of risk does not apply where the plaintiff has

under an exigency caused by the defendant's wrongful misconduct consciously and

deliberately faced a risk, even of death, to rescue another from imminent danger of personal

injury or death whether the person endangered is one to whom he owes a duty of protection, as

a member of his family or is a mere stranger to whom he owes no such special duty.

- The same principle will apply when somebody by his negligence puts himself in danger

rather than any third person. If, for instance, A by his own wrongful act creates a situation which

endangers A himself and the circumstances are such that he can expect that somebody else will

come to his rescue A will be liable to the rescuer.

- The rule in Haynes V. Harwood applies in cases of rescue of property also.

2. Plaintiff the Wrongdoer: Under the law of contract, one of the principles is that no court will aid a

person who forms his cause of action upon an immoral or an illegal act. Whereas in case of tort the

principle seems to be that the mere fact that the plaintiff was a wrongdoer does not disentitle him

from recovering from the defendant for latter's wrongful act. The plaintiff may have to answer for his

wrongful act but does not forfeit his right of action for the harm suffered.

When the plaintiff himself is a wrongdoer he is not disabled from recovering in tort unless some

unlawful act or conduct on his own part is connected with the harm suffered by him as part of the

same transaction. Thus it has to be seen as to what is the connection between the plaintiffs'

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. In Bird Vs Holbrook the plaintiff a trespasser over the

defendant's land was entitled to claim compensation for injury caused by spring gun set by the

defendant without notice in his garden.

3. 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 defendant, it is inevitable

accident.

It does not mean absolutely inevitable but it means not avoidable by any such precautions as a

reasonable man doing such an act then and there could be expected to take.

In Stanley V. Powell 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 injury was accidental and defendant was not liable.

It may be noted that the defence of inevitable accident is available when the event is unforeseeable

and consequence unavoidable in spite of reasonable precaution. Even if the event is like heavy rain

and flood, if the same can be anticipated and guarded against and the consequence can be avoided

by reasonable precautions the defence of inevitable accident cannot be pleaded in such a case.

4. Act of God: Act of 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, tempests, tides and volcanic eruptions. It has been explained in Halsbury's Law of England

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as under:

"An Act of God in the legal sense may be defined as an extraordinary occurrence of circumstance

which could not have been foreseen and which could not have been guarded against or an accident

due to a natural cause directly and exclusively without human intervention and which could not have

been avoided by any amount of foresight and pains and care reasonably to be expected of the

person sought to be made liable for it."

Two important essentials are needed for this defence:

a) There must be working of natural forces: In Ramalinga Vs Narayana Reddiar it has been held

that the criminal activities of the unruly mob which robbed the goods transported in the defendant's lorry

cannot be considered to be an act of God and the defendant is liable for the loss of those goods as a

common carrier.

b) Occurrence must be extra ordinary: In Kallulal V Hemchand the wall of a building collapsed on a

day when there was a rainfall of 2.66 inches. That resulted in the death of respondent's children. The

Madhya Pradesh High Court held that the defendant could not take the defence of Act of God in this case as

that much of rainfall during the rainy season was not something extraordinary but only such as ought to

have been anticipated and guarded against. The appellant was therefore held liable.

5. Private Defence: The law permits use of reasonable force to protect one's person or property.

If the defendant uses the force which is necessary for self-defence he will not be liable for the harm

caused thereby.

There should be imminent threat to the personal safety or property.

It is also necessary that such force as is absolutely necessary to repel the invasion should be used.

Thus if A strikes B, B cannot justify drawing his sword and cutting off his hand.

For the protection of property also the law permits taking of such measures as may be reasonably

necessary for the purpose. Fixing of broken pieces of glasses or spikes on a wall or keeping a fierce

dog can be justified but not the fixing of spring guns.

6. Mistake: Mistake whether of fact or of law is generally no defence in an action for tort.

When a person willfully interferes with the rights of another person it is no defence to say that he

honestly believed that there was some justification for the same when in fact no such justification

existed.

Entering the land of another thinking that to be one's own is trespass.

To this rule there are some exceptions when the defendant may be able to avoid his liability by

showing that he acted under an honest but mistaken belief. For example for the wrong of malicious

prosecution it is necessary that the defendant had acted maliciously and without reasonable cause

and if the prosecution of an innocent man is mistaken it is not actionable.

7. Necessity: An act causing damage, if done under necessity to prevent a greater evil is not

actionable even though harm was caused intentionally.

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Necessity Vs Private Defence: In necessity there is an infliction of harm on an innocent person

whereas in private defence harm is caused to the plaintiff who himself is wrongdoer.

Necessity Vs Inevitable Accident: In necessity the harm is an intended one whereas in inevitable

accident the harm is caused in spite of the best effort to avoid it.

Throwing goods overboard a ship to lighten it for saving the ship or persons on board the ship or

pulling down a house to stop further spread of fire are its common examples. Similarly, pulling out a

drowning person from water or surgeon to perform an operation is not actionable.

If, however, the interference is not reasonably necessary the defendant will be liable. In Carter V

Thomas the defendant who entered the plaintiff's premises in good faith to extinguish fire at which

the foremen had already been working was held liable for trespass.

8. Statutory Authority: The damage resulting from an act which the legislature authorizes or directs

to be done is not actionable even though it would otherwise be a tort.

When an act is done under the authority of an act it is complete defence and the injured party has no

remedy except for claiming such compensation as may have been provided by the statute.

Immunity under statutory authority is not only for that harm which is obvious but also for that harm

which is incidental to the exercise of such authority.

In Vaughan V Taff Valde Rail Co. sparks from an engine of the respondent's railway company which

had been authorized to run the railway set fire to the applicant's woods on the adjoining land. It was

held that since the respondent had taken proper care to prevent the emission of sparks and they

were doing nothing more than what the statute had authorized them to do they were not liable.

It is necessary that the act authorized by legislature must be done carefully and therefore an action

does lie for doing that which the legislature had authorized if it be done negligently.

The statute may give absolute or conditional authority for the doing of an act. In the former case

even though nuisance or some other harm necessarily results there is no liability for the same.

When the authority given by the statute is conditional, it means that the act authorized can be done

provided the same is possible without causing nuisance or some other harm. In Metropolitan

Asylum District V. Hill the appellant hospital authority erected a small pox hospital in a residential

area. It was held to be a nuisance and the appellants were issued an injunction to remove the

hospital. The statutory authority in this case was construed to be conditional in so far as they were

considered to be authorized to set up hospital if that could be done without creating a nuisance.

Act authorized must be done carefully and therefore an action lies for doing that which the

legislature had authorized if it be done negligently. In Smith V London and South Western Railway

Co. the servant of Railway Co. negligently left trimmings of grass and hedges near railway line,

sparks from an engine set the material on fire and cottage adjacent to line was burnt. Since it was a

case of negligence on the part of railway Co. they were held liable.

IMPORTANT QUESTIONS

Q.1. What are the defences available to the defendant under law of torts?

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Q.2. Define res ipsa loquitor.

Q.3. Explain and Illustrate contributory negligence and its 'Last opportunity rule; refer to Davis vs Mann

case.

Q.4. What are the various defences available in case of tortious liabilities?

Q.5. 'What do you understand by vicarious liability in torts? Is master liable for the fraudulent acts of the

servant?

Q.6. What are the various liabilities? State rule of strict liability as laid down in the Rylands vs Fletcher.

Q.7. Whose burden of proof will it be if a flour bag falls upon the head of a person who is passing through

the lane below a flour mill?

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UNIT – III

NUISANCE

Wrong against Persons Property

The origin of the tort of nuisance is to be found in the French word nuise and latin term nocere which means

to hurt or to annoy.

According to Black stone nuisance (nocumentum) is something that causes damages inconvenience and

annoyance.

According to fedrick Pollock nuisance as a wrong done to a person by unlawfully disturbing him in

enjoyment of his land, or in some cases in the exercise of a common right.

Nuisance as a tort means an unlawful interference with a person's use or enjoyment of land or some right

over or in connection with it (Winfield).

Acts interfering with the comfort, health or safety are the examples of it. The interference may be made in

different ways e.g. noise, vibrations, heat, smoke, smell, fumes, water, gas, electricity, excavations or

disease producing germs.

Nuisance V. Trespass: Trespass is:

1. A direct physical interference

2. With the plaintiff possession of land.

3. Through some materials or tangible object.

The points of distinction between the two are as follows :

- If interference is direct, the wrong is trespass but if it is consequential, it amounts to

nuisance. Planting a tree on another's land is trespass. But when a person plants a tree over his

own land but the roots or branches project over the land of another person that is nuisance.

- Trespass is interference with a person's possession of land. In nuisance, there is

interference with the use or enjoyment of land. Such interference with the use or enjoyment

could be there without any interference with the possession. For example, a person by creating

offensive smell or noise on his own land could cause nuisance to his neighbour.

- Moreover, in trespass interference is always through some material or tangible objects.

Nuisance can be committed through the medium of intangible objects also like vibrations, gas,

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noise, smell, electricity or smoke.

- Apart from that, a trespass is actionable per se but in action for nuisance special damage

has got to be proved.

Public

Kinds of Nuisance Private

1. Public nuisance is crime under sec. 268 IPC, 1860 whereas private nuisance is a civil wrong.

2. Public nuisance is interference with the right of public in general and the provision is under 91 CPC

1908.

Section 133 of the Code of Criminal Procedure, 1973 empowers the District Magistrate to pass order for the

removal of public nuisance.

- Obstructing a public way by digging a trench or constructing structure on it are examples of

public nuisance. Although such obstructions may cause inconvenience to many persons, none

can be allowed to bring a civil action otherwise there may be hundreds of actions for a single act

of public nuisance.

- In certain cases when any person suffers some special or particular damage different from

what is inflicted upon public as a whole a civil right of action is available to the person injured.

What is otherwise a public nuisance also becomes a private nuisance so far as the person

suffering special damage is concerned. For example, digging trench on a public highway may

cause inconvenience to public at large no member of the public who is thus obstructed or has to

take a diversion along with others can sue under civil law. But if anyone of them suffers more

damage than suffered by the public at large e.g. is severely injured by falling into the trench, he

can sue in tort. In order to sustain a civil action in respect of public nuisance proof of special and

particular damage is essential.

In Dr. Ram Raj Singh V. Babu Lal the defendant installed a brick-grinding machine adjoining the premises of

the plaintiff who a was medical practitioner. The brick-grinding machine generated dust which polluted the

atmosphere. The dust entered the consulting chamber of the plaintiff and caused physical inconvenience to

him and patients and thin coating on clothes caused by dust could be apparently visible. It was held that

special damages to the plaintiff had been proved and a permanent injunction was issued against the

defendant restraining him from running his brick-grinding machine there.

Private Nuisance or Tort of Nuisance: Its essentials:

To constitute the tort of Nuisance the following essential are required to be proved:

1. Undue or Unreasonable Interference

- defendant interfered with a legally protected interest of the plaintiff

- Interference may cause damage to the plaintiff's property or may cause personal discomfort

to the plaintiff in the enjoyment of property.

- To constitute nuisance the interference should be unreasonable. Every person must put up

with some noise, some vibrations, some smell etc so that members of the society can enjoy their

own right.

- A person having a house by the roadside must put up with such inconvenience as is

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incidental to the traffic on the road. So long as the interference is not unreasonable no action can

be brought.

- Running a f10urmill in a residential area has been held to be nuisance (Radhey Syam V. Gur

Prasad). Similarly, when the starting of a brick kiln at a certain place is likely to spoil the quality of

cotton in a ginning factory and in the windy season sparks from the brick kiln are likely to cause

fire in the cotton godown and the factory that is valid ground for injunction against the starting of

the brick kiln (S. Chittiar V. Shri. Ram Kumar Ginning Firm). But in Ushaben V. Bhagya Laxmi

Chitra Mandir it has been held that exhibition of the Film "Jai Santoshi Maa" is not nuisance

merely because the plaintiff alleges that her religious feelings are hurt as Goddesses Saraswati,

Laxmi and Parvati are depicted as jealous and are ridiculed.

- An act which is otherwise reasonable does not become unreasonable and actionable when

the damage even though substantial is caused solely due to the sensitiveness of the plaintiff or

the use to which he puts his property. If a certain kind of traffic is no nuisance for a healthy man it

will not entitle a sick man to bring an action if he suffers thereby even though the damage be

substantial. Similarly, a person cannot increase the liabilities of his neighbour by carrying on an

exceptionally delicate trade.

- Nuisance is generally a continuing wrong. A constant noise, smell or vibration is a nuisance

and ordinarily an isolated act of escape cannot be considered to be a wrong. However in a

number of cases isolated acts of escape of dangerous things could entitle the plaintiff to recover

for damage to property. Thus whether the wrongful act is continuous, intermittent or isolated it is

actionable.

Malice: In Mayor of Bradford V. Pickles the House of Lords held that if an act is otherwise lawful it does not

become unlawful merely because the same has been done with an evil motive. However, if the act of the

defendant which is done with an evil motive becomes an unreasonable interference it is actionable.

A person has right to make a reasonable use of his own property but if the use of his property causes

substantial discomfort to others it ceases to be reasonable. In Christe V. Davey the defendant being

irritated by considerable amount of music lessons by the plaintiff, a music teacher, living in the adjoining

house maliciously caused discomfort to the plaintiff by hammering against the wall, beating of trays,

whistling and shrieking. The court granted an injunction against the defendant.

2. Interference with the Use or Enjoyment of Land: Interference may cause either

a) Injury to the property itself, or

b) Injury to comfort or health of occupants of certain property.

(a) Injury to the Property Itself: An unauthorized interference with the property of another person

through some object, tangible or intangible which causes damage to the property is actionable as nuisance.

It may be, for example, by allowing the branches of tree to overhang on the land of another person or the

escape of the roots of a tree, water, gas, smoke or fumes etc on the neighbour's land or even by vibrations.

(b) Injury to Comfort or Health: Substantial interference with comfort and convenience in using the

premises is also actionable as a nuisance. A mere trifling or fanciful inconvenience, however, is not enough.

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The standard of comfort and convenience in using the premises varies from time to time and place to place.

Inconvenience and discomfort from the point of view of a particular plaintiff is not the test of nuisance but the

test is how an average man residing in the same area would take it.

Disturbance of neighbour throughout the night by the noise of horses in a building which was converted into

a stable was held to be a nuisance.

Smoke, noise and offensive vapour may constitute nuisance even though they are not injurious to health.

3. Damage: Unlike trespass which is actionable perse actual damage is required to be proved in an

action for nuisance. Normally, the assessment of damage in nuisance cases is done on the basis of

depreciation in value of the plaintiff's property caused by the defendants act.

Where the nuisance is apprehened or threatened, no damages may be claimed as no damage has been

sustained as yet. But when the plaintiff asks for an injunction, the court has discretion to grant damages

instead of injuction.

In the case of public nuisance the plaintiff can bring an action in tort only when he proves a special damage

to him.

Defences Against Nuisance

Generally, there are two main defences available to defendant in an action for nuisance against plaintiff

firstly, he may show that right to continue the alleged nuisance has been acquired by prescription as it has

been peaceably and openly enjoyed as of right continuously for more than twenty years.

(Sec.8 and 13 of the Indian Easements Act, 1882).

Secondly, it will be a valid defence to show that the said nuisance is under the terms of a grant. These

defences are besides the general defences which are available to a defendant in law of torts.

The remedies available to a person for nuisance are:

a) Abatement

b) Injunction

c) Damages

i) Abatement: means the removal of nuisance by the party affected. But in this case removal must be

peaceful, without danger of life or limb. A private individual cannot abate public nuisance, except

under certain circumstances.

ii) Injunction: Injunction can be obtained from the court by the plaintiff on three grounds. First is that

there should be prima facie case in favour of the plaintiff. Secondly the injury is irrepairable, and

thirdly the balance of convenience in favour of the plaintiff. The injunction can be prohibitory or

mandatory.

iii) Damages: Damages are assessed in nuisance on the basis of depreciation value of the plaintiff's

property caused by the defendant's wrongful act.

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Wrong Against Person's Reputation

Defamation

The law of defamation is based on the fundamental principle that everyone has a right to freedom of

thought, expression, right to hold opinions and to receive and impart information and views without

i1terference by other. But the exercise of these freedoms carries with it certain duties and responsibilities,

which may be subject to such restrictions as are necessary in a democratic society, for the protection of

decency, morality, public order, health and reputation or rights of others and for the maintenance of national

security and judiciary's impartiality.

The right of reputation is acknowledged as an inherent personal right of every person.

Dr. Winfield defined Defamation as the publication of a statement which tends to belower the reputation of a

person in the eyes of right thinking persons of society generally or which tends to make them shun Of avoid

that person.

In other words defamation is an injury to the esteem or regard in which one is held by others. Where

defamation is in a permanent form, it is called libel, but if it only through words or gestures it is known as

slander.

Libel and Slander: English law divided actions for defamation into libel and slander.

- Slander is the publication of a defamatory statement in a transient form. Example of it may

be spoken by words or gestures.

- Libel is representation made in some permanent form e.g. writing, printing, picture, or

statue.

- Another test which distinguishes libel and stander is that libel is addressed to the eye,

slander to the ear.

Under English Law the distinction between libel and stander is material for two reasons.

1. Slander is only a civil wrong whereas libel is both a crime and a tort.

2. Slander is actionable in some exceptional cases only on proof of special damage, libel is actionable

per se.

- The above stated distinction does not find any place in India. Unlike English law under

Indian criminal law libel and slander are treated alike, both of them are considered to be an

offence under sec 499 IPC. The weight of the judgment of different High Courts are in favour of

discarding the distinction between libel and slander.

Essentials of Defamation

1. The Statement Must be Defamatory: Defamatory statement is one which tends to injure the

reputation of the plaintiff. Defamation is the publication of a statement which tends to lower a person

in the estimation of right thinking members of society generally.

- An imputation which exposes one to disgrace and humiliation, ridicule or contempt is

defamatory.

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- Whether a statement is defamatory or not depends upon how the right thinking members of

the society are likely to take it.

- If the likely effect of the statement is injury to the plaintiff's reputation, it is no defence to say

that it was not intended to be defamatory.

In D.P Chaudhary V. Manjulata (AIR 1997 Raj 170) there was a publication of a statement in a local

daily that Manjulata on the pretext of attending night classes ran away with boy named Kamlesh.

She belonged to a well-educated family and herself was a student of B.A. The news item was untrue

and had been published with utter irresponsibility and without any justification. Such publication had

resulted in her being ridiculed. The statement was held to be defamatory and defendants were held

liable.

- Mere hasty expression spoken in anger or vulgar abuse to which no hearer would attribute

any set purpose to injure characters would not be actionable.

- No action for damage can lie for mere insult. If however the insulting words are also likely to

cause ridicule and humiliation they are actionable.

The Innuendo

- Sometimes a statement may be prima-facie innocent but because of some latent or

secondary meaning it may be considered to be defamatory. This is known as innuendo.

- 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 the secondary meaning i.e. innuendo which

makes the statement defamatory. To say that X is an honest man and he never stole my watch

may be a defamatory statement if the persons to whom the statement is made understand from

this that X is a dishonest man having stolen the watch.

Intention to Defame is Not Necessary: When the words are considered to be defamatory by the persons

to whom the statement is published there is defamation even though the person making the statement

believed it to be innocent.

It is not necessary for the plaintiff to show that the defendant intended to refer the statement to the plaintiff.

For example where a proprietor of a newspaper published erroneously the news, which he believed to be

true, that the plaintiff (a girl) had given birth to twins although she was married only a month ago, he was

held liable for defamation as it indirectly caused aspersions on the character of the girl for giving birth to an

illegitimate child.

2. The Statement Must Refer to the Plaintiff: In an action for defamation the plaintiff has to prove

that the statement of which he complains referred to him. If the person to whom the statement was

published could reasonably infer that the statement referred to the plaintiff the defendanus nevertheless

liable. In Houlton & Co. V. Jones the defendant, newspaper proprietors published a fictional article in their

newspaper by which imputations were cast on the morals of fictitious person, Artemus Jones.

A real person of the same name brought an action for libel. His friends who read that article believed that the

article referred to him. The defendants were held liable. It was held that it is immaterial that the defendant

did not intend to defame the plaintiff and if substantial number of persons who knew the plaintiff reading the

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article would believe that it refers to him the action for defamation can be maintained.

The view is that liability for the defamation did not depend upon the intention of the defendant to defame but

upon the fact that the statement made by him was considered to be defamatory. This created a lot of

hardship for many innocent authors' printers etc because their innocence did not save them from liability.

So Defamation Act, 1952 was passed to remove this hardship which has been created for innocent

persons.

The procedure provided in the Act is that if the defendant has published certain words innocently but they

are considered to be defamatory he should make an offer of amends Le. he must publish a suitable

correction and an apology as soon a possible after he came to know that the words published by him were

considered to be defamatory to the plaintiff.

In T.V. Ramasubha Iyer V.Ahmed Mohindeen, (AIR 1972 mad 398) the Madras High Court held that in India

there was no liability for the statement published innocently if on coming to know that the alleged

defamation has resulted as a consequence of their publication of the news item they had published a

correction. The Madras High court discussed the English case Hulton CoVA Jones and held that the law laid

down in Hulton's case in against justice, equity and good conscience and therefore, not applicable in India.

When the words refer to a group of individuals or a class of persons no member of that group or class can

sue unless he can prove that the words could be reasonably be considered to be referring to him.

3. The Statement Must be Published: The essence of defamation is 'publication' which excites

others against the plaintiff to form adverse opinions or exposes him to hatred, contempt or ridicule, or to

injure him in his trade, business, profession, calling or office, or to cause him to be shunned or avoided in

society. Publication means making the defamatory matter known to some person other than the person

defamed.

- Communication to the plaintiff himself is not enough because defamation is injury to the

reputation and reputation consists in the estimation in which others hold him and not a man's

own opinion of himself.

- Sending the defamatory letter to the plaintiff is not enough for civil action. If a third person

wrongfully reads a letter meant for the plaintiff the defendant is not liable.

- If a defamatory letter sent to the plaintiff is likely to be read by somebody else there is

publication.

- When the defamatory matter is contained in a post card or a telegram the defendant is liable

even without a proof that somebody else read it because a telegram is read by the post office

officials who transmit it and receive it.

- Moreover, when the libelous letter addressed to the plaintiff is in the ordinary course of

business likely to be opened by his clerk or by his spouse there is defamation when the clerk of

the spouse opens and reads the letter.

- There is also publication when the defendant knew or ought to have known that the letter

although sent to the plaintiff will be read by some third person ego it is written in a language,

which the plaintiff does not understand.

Communication between Husband and Wife: In the eyes of law husband and wife are one person and

the communication of a defamatory matter from the husband to the wife or vice versa is no publication.

However communication of a matter defamatory of one spouse to the others is sufficient publication.

- The liability of the person who repeats defamatory matter arises in the same way as that of

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the originator because every repetition is a fresh publication giving rise to a fresh cause of

action.

Defamation of a decreased Person: The defamatory statements made against a person who is dead, are

not actionable as a tort of defamation because one of the essential requirements for suing in defamation is

that the plaintiff has to prove that the statement referred to him, which obviously in case of a dead man in not

possible. The Andhra Pradesh High Court in the matter of All India Anna Dravida Munnetra Kozhagam,

Madras V.K. Govindam Kutty, (C1996) 2 ALD 139 (AP) held that to defame a dead person is not a tort. But if

the defamatory statement is that deceased 'W'was a prostitute, then her daughter may sue in defamation

on the ground that the statement affects her reputation but not on the ground that it defames her deceased

mother. However in criminal law, a person defaming a dead person under Sec. 499 IPC may be criminally

prosecuted if the imputation would have harmed the reputation of that person if living and is intended to be

harmful to the feelings of his family or other near relatives.

The defences to an action for defamation are:

Defences: Apart from the other general defences there are three special defences available to a defendant

in an action for defamation against him. They are i) Justification or truth ii) Fair comment and iii) Privilege,

which may be either absolute or qualified.

1. Justification or Truth: In a civil action for defamation truth of the defamatory matter is complete

defence whereas under criminal law besides truth of the defamatory matter it must be shown to have

been made for public benefit, or in public interest.

- The reason for the defence is that the law will not permit a man to recover damages in

respect of an injury to a character which he either does not or ought not to posses.

- The defence is available even though the publication is made maliciously.

- If the statement is substantially true but incorrect in respect of certain minor particular, the

defence will still be available.

In the case of Vimal Kumar V. Deshdiwaker (AIR 2005 MP 37) the plaintiff alleged that the defendant

published circular wherein it was stated that the plaintiff a minister, was arrested for causing

nuisance in Management of school and he also took share from salary of teachers. The allegations

was found to be correct by evidence of students and teachers. Thus the act of the defendants was

held to be non-libelous.

2. Fair Comment: Making fair comment on matter of public interest is a defence to an action for

defamation. For this defence the following essentials are required.

a) It must be a Comment: Comment means an expression of opinion based on certain facts.

- Since it is necessary that the comment must be related to certain facts it is also essential that

the facts commented upon must be either known to the audience addressed or the

commentator should make it known along with his comment. For example, X says that "A has

been held guilty of breach of trust and therefore he is a dishonest man' the latter's words are

comments on the former. But if the former words are not non-known to the audience and X

publishes that "A' is a dishonest man, it is not a comment but a statement of fact. The plea of fair

comment cannot be pleaded in such case.

b) The Comment must be Fair: The comment cannot be fair when it is based upon untrue facts.

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- If the facts are substantially true and justify the comment of the facts which are truly stated,

the defence of fair comment may be taken even though some of the facts stated may not be

proved

- Whether the comment is fair or not depends upon whether the defendant honestly held that

particular opinion. It is not the opinion of the court as to the fairness of the comment but the

opinion of the commentator which is material.

- If the comment is distorted due to malice on the part of the defendant his comment ceases to

be fair and such a defence cannot be taken.

c) The Matter Commented upon must be of Public Interest: Administration of Govt. departments,

public companies, courts, public acts of ministers or officers of state etc are considered to be

matters of public interest.

3. Privilege: The third and the last defence to an action for defamation is that of privilege. The law

recognizes that, in addition to the defence of fair comment, there are other occasions on which freedom

of communication without fear of an action for defamation is more important than the protection of an

individual's reputation. Such occasions are said to be privileged.

Privilege is of two kinds:

A. Absolute Privilege: In matter of absolute privilege no action lies for the defamatory statement even

though the statement is false or has been made maliciously. In such cases the public interest demands that

an individual's right to reputation should give way to the freedom of speech. Absolute privilege is

recognized in the following cases:

a) Parliamentary Proceeding: Article 105 (2) of our Constitution provided that statement made by a

member of either house of Parliament in Parliament and the publication by or under the authority of

either house of parliament of any report paper, votes or proceedings cannot be questioned in a court

of law.

b) Judicial Proceedings: No action for libel or slander lies whether against judge's, counsel's witness

or parties for words written or spoken in the course of any proceeding before any court recognized

by law even though the words are written or spoken maliciously and from personal ill will.

- Such a privilege also extends to proceeding of the tribunals possessing attributes of court.

- Words spoken or written must have relevance to the matter before the court.

c) State Communication: A statement made by one officer of the state to another in the course of

official duly is absolutely privileged for reasons of public policy.

B. Qualified Privilege: There are certain occasiosn when the defendant is exempted from liability for

making defamatory statement but the exemption is granted if the statement was made without malice.

These are matters of qualified privilege. To avail this defence the defendant has to prove the following two

prints:

a) The statement was made on a privileged occasion i.e. it was in discharge of duty or protection of an

interest, it was a fair report of parliamentary, judicial or other public proceedings. The occasion

when there is a qualified privilege to make defamatory statement without malice are either when

there is existence of a duty legal, social or moral to make such statement or existence of some

interest for the protection of which the statement is made.

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Illustration: A, a shop keeper, says to B the manager of his business "Sell nothing to Z unless he pays you

ready money for I have no opinion of his honesty." A is within the exception if he has made his imputation on

Z in good faith for the protection of his own interest.

A former employer has a moral duty to state servant's character to a person who is going to employ the

servant. The person receiving the information has also an interest in the information. The occasion is

therefore privileged. But if a former employer without any enquiry publishes the character of his servant with

a motive to harm the servant the defence of qualified privilege cannot be taken.

- In the case of publication of libelous matter in the newspaper, duty to the public has got to be

proved. If such a duly is not proved the plea of qualified privilege will fail.

- The plea will also fail if the plaintiff proves the presence of malice or an evil motive in the

publication of the defamatory matter.

- The reciprocity of duty or interest is essential. Such a duty or interest must be actually

present. It is not sufficient that the maker of the statement honestly believed in the existence of

such interest or duty in the receiver of the statement.

- Such communications may be made in cases of confidential relationships like those of

husband and wife, father and his son/daughter etc.

- Reports of parliamentary judicial or other public proceedings are also a subject of qualified

privilege provided the publication is made without malice and for public good.

2) The statement should be without malice. In the matters of qualified privilege the exemption from

liability for making defamatory statement is granted if the statement was made without malice.

- The presence of malice destroys this defence.

- The malice in relation to qualified privilege means an evil motive.

TORTUOUS LIABILITY OF STATE

The concept of tortuous liability of state refers to a situation when the state can beheld vicariously liable for

the wrongs committed by its servants or employees. Since the state is legal entity and not a living

personality, it has to act through human agency Le. through its servants. According to the principles of

vicarious liability if the servants commit wrongful act the state should be held liable for the wrong committed

by its servants during the course of employment.

In England absolute immunity of the sued in tort for wrongs committed by its Servants in the course of their

employment. This rule was based upon the well known maxim the king can do no wrong".

In India the maxim "king can do no wrong" was not accepted.

Position of Tortious Liability of State before Commencement of Constitution.

With the arrival of Britishers in India in 1600 East India company got exclusive rights of trading in India by

Charter of Queen Elizabeth I. Later on East India Company acquire dual character of trader and a

Sovereign. In 1858 the British Parliament by the Govt. of India Act 1858 allowed the Secretary of state to

sue or be sue.

In the case of Peninsular & Oriental Navigation Company V.Secretary of State for India (1861) 5 Bom

HCR), the principle that "the Government is liable for torts of its Serrants in the course of transaction which

any private person can engage in" was laid down by justice Peacock of the Bombay High Court and this

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principles was approved by privy Council while disposing of the appeal in this case.

In this case Justice Sir Peacock for the first time drew a distinction between sovereign and non-sovereign

functions of the govt. and held the Govt. liable on the ground that if, the same it has been committed by a

private person, he could have been held, liable, as such this was not a sovereign function and therefore the

Govt. was liable.

According to chief justice Peacock, Sovereign functions are those which Govt., alone and none else is

authorized to perform and which cannot be allowed to be performed by private persons. For example, war,

foreign functions which are exclusively within the domain of the Government and no private person can be

assigned or allowed to perform them. But if the nature of the act is such that if it were committed by a private

person, he would have been made liable, then if the same is performed by the Govt. through their servants,

there is no reason why they should not be held liable. In other words, such acts being non-sovereign for

injuries resulting from them.

In the case of Secretary of State V.Cockraft, (1914 ILR 39 Mad 351) the principle of Sovereign immunity

again established that maintenance of military road was a sovereign function for which the Government

was not liable. Under Sec 65 of the Govt. of India Act 1858, and Sec. 32 of the Govt. of India Act 1919 the

Court held that:-

The Secretary of State of India can sue or be sued in his name as a corporate entity:

Every person aggrieved by an act of the govt. negligently done by its servants in course of employment may

sue the secretary of state for India just as he could sue the East India Company prior to the passing of the

Govt. of India Act. 1858.

Position of Tortious Liability of State after Commencement of Constitution

Article 300 (1) of the Constitution of India, declares that Govt. of India or a State may be sued for the

tortuous act of its servants in the same manner as the Dominion of India and provinces could be sued or

have been sued before the commencement of the Constitution.

The Union Govt. in the Centre and the respective state govt. will be liable for tortuous acts of their servants

in the course of their employment.

In the leading case of state of Rajasthan Widhyavati (AIR 1962 SC 933) Supreme Court confirmed the

decision of the High Court and held in a welfare state, the functions of the state cannot be confined only to

the maintenance of law and order, but extend to large number of activities including industry, commerce,

state trading, public transport etc. it is therefore, too much to claim immunity of the state from the

consequences flowing out of such multifarious activities committed by its employees in the course of their

employment.

But later on in 1965 in the case of Kasturilal V.State of Uttar Pradesh (AIR 1965 SC 1039) the interpretation

of State immunity was given discussed before Supreme Court.

Apex Court held that where a tortious act is committed by a public servant in discharge of Statutory function

which are under delegation of sovereign powers of the State, the action for damages for loss caused by

such Tortious act will not lie. If the tortious act has been committed by a public servant in discharge of duties

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assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie."

Modern View

In Nagendra Rao V. State of Andhra Pradesh (AIR 1994 SC 2663) Supreme Court held that the doctrine of

Sovereign immunity would not be applicable where the act of the Government functionaries is manifestly

illegal and arbitrary.

In this case, a huge quantity of fertilizers and food grains was seized under the Essential commodities Act,

1955 by the Police Officials of the Vigilance Department. Despite specific orders by the court to dispose of

the seized fertilizers and food grains no steps were taken by the concerned officials as a result of which the

fertilizer deteriorated and was rendered useless causing huge loss to the appellant.

A drastic change in judicial interpretation was there in the case of Neelbati Bohra V.State of Orrisa (AIR

1993 SC 1960). Supreme Court held that if there is violation of fundamental rights then plea of sovereign

immunity cannot be taken in India.

In this case supreme court minimize the effect of sovereign immunity and held that the doctrine of state

immunity has no application in public law. - MK. Gupta V. Lucknow Dev. Authority (AIR 1994 SC 787)

"It is thoroughly well established that no action will lie for doing that which the legislature has authorized, if it

be done without negligence although it doesoccasion damage to anyone, but an action does lies for doing

what the legislature has authorized, if it be done negligently."

Under our constitution sovereignty, vests in the people. Every limb of the constitutional machinery is

obliged to the people oriented. No functionary in exercise of statutory power can claim immunity, except to

the extent protected by the Statute itself.

i) Trespass to person

ii) Trespass to land

iii) Trespass to Goods

Wrongs affecting personal safety and freedom are often termed as termed as "Trespass to person".

Wrongs affecting person include assault, Battery, false imprisonment, malicious prosecution.

Battery

Battery is an intentional use of force to another person without legal justification.

- Battery-intentional and direct application of force to another person.

- Further, there must be voluntary act by defendant intended to bring about the contact with

plaintiff.

Salmond and Heuston: Intentionally to bring any material object into contact with another person is a

sufficient application of force to constitute battery.

Essential Elements of Battery

1. Use of Force

Not material how much force has been used.

Even though the force used is very trivial and does not cause any harm, the wrong is still constituted.

Physical hurt need not be there.

Least touching of another is a battery.

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E.g., use of stick, bullet or any other missile or throwing water or spitting in a man's face or making a person

to fall down by pulling chair.

2. Without lawful justification

- Essential that use of force should be intentional and without any lawful justification.

- If two or more persons meet in a narrow passage and one uses violence against other to

force his way in a rude or inordinate manner it will be battery.

- However use of force may be justified in pulling a drowning man out of water, forcibly feeding

a hunger-striking prisoner to save his life.

- Harm which is unintentional or caused by pure accident is also not actionable.

Stanley V. Powell

- Powell member of a shooting party accidentally fired at a pheasant but the pellet from his

gun glanced off a tree and wounded Stanley another member of party. Held that Powell was not

liable. Use of force to oust a trespasser from certain premises is perfectly justified. However,

only reasonable force can be used against trespasser. Use of excessively more force than is

necessary will make person liable.

- In Cherubin Gregory V. State of Bihar held that fiXing naked live electric wire without due

warning across the passage of latrine to keep trespassers away from latrine and thereby

causing death of trespasser was actionable.

Assault

- It means an act of defendant, which causes to the plaintiff reasonable apprehension of the

infliction of a battery to him by defendants.

Defendant by his act creates an apprehension in the mind of plaintiff that he is going to commit

battery against the plaintiff the wrong of assault is completed.

- Wrong consists in an attempt to do the harm rather than the harm being caused thereby.

- e.g., pointing a loaded pistol at another is an assault. Even though pistol is not loaded then

also it may be an assault if pointed at such a distance that if loaded it may cause injury.

- Test is whether an apprehension has been created in the mind of the plaintiff that battery is

going to be committed against him.

- Also essential that there should be prima facie ability to do the harm.

Stephens V. Myers

Plaintiff, Chairman at Meeting and defendant sat at same table but there were six or seven persons

between them. In the course of some angry discussion defendant became vociferous and he interrupted

the proceedings at the meeting. Defendant advanced towards chairman with clinched fist saying that he

would rather pull the chairman out of chair than be turned out of room but was stopped by servant, held

liable for assault. Generally, assault precedes battery. Showing a clenched fist is assault but actual striking

amounts to battery.

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Trespass to Land

- Interference with the possession of land without lawful justification.

- In trespass the interference with the possession is direct or through some tangible object,

however, if interference is not direct but consequential the wrong may be nuisance.

e.g. to throw stones upon one's neighbor's premises is a wrong of trespass, to allow stone from

a ruinous chimney to fall upon those premises is wrong of nuisance.

Similarly, planting a tree on another land is a trespass but if a person plants a tree over his land and

its roots or branches escape on the land of neighbour that will be nuisance.

- Could be committed either by a person, himself entering the land of another person or doing

the same through some material object e.g. throwing of stones on another person's land, driving

nails i'1to the wall, placing ladder against the wall or leaving debris upon the roof.

- Allowing cattle to stray on another person's land is also trespass.

- Going beyond the purpose for which person has entered certain premises or crossing the

boundary where he has no authority to go amount to trespass, e.g., person allowed to sit in a

drawing room enters the bedroom without any justification, entry into bedroom is trespass.

- Trespass is a wrong against possession rather than ownership. Therefore, a person in

actual possession can bring an action even though against the true owner, his possession was

wrongful.

- Trespass is actionable per se and the plaintiff need not prove any damage for an action of

trespass.

- Every invasion of property, be it very minute, is a trespass.

- Neither use of force nor showing any unlawful intention on the part of defendant is required.

- When a person enters certain premises under the authority of some law and after having

entered there abuses that authority by committing some wrongful act there he will be

considered to be trespasser 'ab intio'.

- Even though he had originally lawfully entered there, the law considers him to be trespasser

from the very beginning and presumes that he had gone there with that wrongful purpose in

mind.

- Plaintiff, therefore, can claim damages not only for the wrongful act which is subsequently

done by the defendant but even in respect of original entry which is "now considered to be a

trespass.

- Entering certain premises with the authority of the person in possession amounts to licence

and defendant cannot be made liable for trespass.

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- Permitting a person to cut a tree on one's land or permitting a person by the cinema

management to see a film are examples of licence.

- After licence is revoked the licensee becomes trespasser on land and must quit that place

within reasonable time.

Remedies

1. Re-entry:

- If a person's possession had been disturbed by trespasser he has a right to use reasonable

force to get trespasser vacated.

- Ousting a trespass by a person having lawful right to do so is no wrong.

2. Action for Ejectment

Trespass to Goods

- Consists in direct physical interference with the goods which are in the plaintiff's possession

without any lawful justification.

- May take numerous forms such as throwing of stones on a car, shooting birds, beating

animals or infecting them with disease.

- Wrong against possession: any person whose possession of goods is directly interfered

with can bring this action.

- Direct physical interference without lawful justification is a trespass.

- Wrong may be committed intentionally, negligently or even by an honest mistake

- Person driving away the car believing that to be his own will be liable in trespass to the

person in possession even though the latter does not have a good title to the same.

- Without lawful justification: When the interference is without any lawful justification an action

for trespass lies.

- Justification when the damage to another person's goods is caused in exercise of the right of

private defence.

- Creswell V. Sirl the defendant's son shot the plaintiff dog because the dog was attacking his

sheep and pigs.

Detinue

When defendant is wrongfully detaining the goods belonging to the plaintiff and refuses to deliver the same

on lawful demand.

- Thus an action for the recovery of goods lies as goods are unlawfully detained by the

defendant.

- If original possession is lawful but subsequently the goods are wrongfully detained, an

action for detinue can be brought.

Conversion

- Consists in willfully and without any justification dealing with the goods in such a manner

that another person who is entitled to immediate use and possessi<;m of the same is deprived

of that.

- Dealing with the goods in a manner which is inconsistent with the right of the owner.

- Same must have been done with an intention on the part of the defendant to deal with the

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goods in such a way that it amounts to denial of plaintiff's right to it.

- E.g., Refusing to deliver the plaintiff's goods, putting to one's own use or consuming them,

transferring the same to a third party, destroying them or damaging them in a way that they lose

their identity.

Wrongful Intention not Necessary

A person dealing with the goods of another person in a wrongful way does so on his own peril and it is no

defence that he honestly believed that he has a right to deal with the goods or he had no knowledge of the

owner's right in them.

Roop Lal V. Union of India

Some military jawans found some firewood lying by the riverside. They thought that the wood being

unmarked probably belonged to the Govt. and they had every right to take the same, took away the wood in

the military vehicle for campfire and fuel. Ultimately it turned out that the wood belonged to plaintiff. Held

that Union of India was liable to compensate the plaintiff or the loss though jawans had no intention to

commit theft. Person selling the goods, sells them without any authority from the owner, may be held liable

for conversion.

LEGAL REMEDIES

In the cases of tort two kinds of remedies are there first is judicial and second is extra judicial. Judicial

remedies are available to a plaintiff through a court of law as:

(i) Damages

(ii) Injunction

(iii) Restitution of specific property

The extra judicial remedies are:

(a) abatement of nuisance

(b) Recaption of gods

(c) Expulsion of trespass

(d) Re-entry on land.

These extra-judicial remedies should not be normally resorted to, for it may create problems of law and

order.

Judicial Remedies: are available to the plaintiff through intervention of the court for which he has to file a

suit against the in a Civil court.

A Damage: 'Damages' for the purpose of law of torts means pecuniary sum which the plaintiff claims from

the defendant for the tort committed by the latter against him. Damages are always unliquidated. They are

not pre-determined and the quantum of damages is decided by the Court according to the facts and

circumstances of the case for allowing the damages claimed by the plaintiff court generally takes into

considerations the following facts:-

i) Are the damages claimed by the plaintiff a consequential result of defendant's wrongful act.

ii) Where such damages foreseeable under the circumstances in which the tort is committed. In other

words, damages must not be too remote,

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iii) What should be the quantum of damages.

In the case of Common Cause -A registered V.Union of India (AIR 1999 SC 2979) Supreme Court define

damages as a pecuniary sum which is awarded to plaintiff who succeeds in an action for tort ora breach of

contract.

Damages are of various kinds.

a ) Nominal Damages

Ordinarily damages are equivalent to the harm suffered by the plaintiff.

- When there has been infringement of the plaintiff's legal right but he has suffered no loss

thereby (injuria sine damnum) the law awards him nominal damages in recognition of his right.

- For example, in wrong actionable per se i.e. in trespass, damage to the plaintiff is presumed

and an action lies even though in fact the plaintiff may not have suffered any loss.

- In Ashby V. White- the returning officer wrongfully disallowed a qualified voter at

parliamentary election but it was found that the voter suffered no loss thereby in so far as the

candidate for whom he wanted to vote had even otherwise won the election.

- However, defendant was held liable/

b) Contemptous Damages

- Amount rewarded is very trifling because the court forms a very low opinion of the plaintiff's

claim and thinks that the plaintiff although he has suffered greater loss does not deserve to be

fully compensated.

- For example: 'A' sues 'B'for assault and the Court finds that 'B'was provoked by an offensive

remarks of 'fi:s.

- In such a case A may be awarded only a minimal sum where as, had he not made the

remark; his damages might have been heavy.

- Nominal damages are awarded when the plaintiff has suffered no loss whereas

contemptuous damages are awarded when the plaintiff has suffered some loss but he does not

deserve to be fully compensated.

c) Compensatory, Aggravated and Exemplary Damages:

- Generally damages are compensatory because the idea of civil law is to compensate the

injured party by allowing him, by way of damages, a sum equivalent to the loss caused to him.

- When insult or injury to the plaintiff's feeling has been caused the court may take into

account the motive for the wrong and award an increased amount of damages. Such damages

are known as 'aggravated' damages.

- Idea in rewarding such damages is not to punish the wrongdoer but to compensate the

plaintiff.

- When the damages awarded are in excess of the material loss suffered by the plaintiff with a

view to prevent similar behavior in future the damages are known as exemplary, punitive or

vindictive.

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Such damages are not compensatory in nature, they are rather by way of punishment to the defendant.

Lord Devlin in Rookes V. Barnard expressed that such damages can be allowed only in the following three

cases.

a) Where the damage as been caused by oppressive, arbitrary or unconstitutional action by the

servants of the government.

b) Where the defendant's conduct has been calculated by him to make a profit for himself which may

well exceed the compensation payable to the plaintiff.

c) Where exemplary damages are expressly authorized by the state.

In Bhim Singh V. State of J & K, the Supreme Court awarded exemplary damage when there was wrongful

detention. In this case, Bhim Singh a member of the Legislative Assembly was arrested and detained to

prevent him from attending the assembly session.

d) Prospective Damages or Future Damages

- Means compensation for damage, which is quite likely result of the defendant's wrongful act

but which has not actually resulted at the time of the decision of the case.

- For example, If a person has been crippled in an accident the damage to be awarded to him

may not only include the loss suffered by him upto the date of the action but also future likely

damage to him in respect of that disability.

Subhash Chander V. Ram Singh:

- Subhash Chander was hit by bus; suffered various injuries resulting in permanent disability

as a result of which he could not then walk without surgical shoe, also because of that disability

could not take employment in certain avenues.

Measure of damages for personal injury:

i) Personal pain and suffering and loss of enjoyment of life (mental agony).

ii) Actual pecuniary loss resulting in any expenses reasonably incurred by the plaintiff and

iii) Probable future loss of income by reason of incapacity or diminished capacity for work.

Klaus Mittel Bauchert V. East India Hotels Ltd

In this case plaintiff aged 30 years German national, Co. pilot checked into Hotel Oberoi Inter Continental.

One afternoon he visited the swimming pool. While diving he hit his head on the bottom of pool. Taken out

bleeding from right ear and appeared to be paralyzed in leg and arm. Taken to Holy Family hospital where

he remained admitted for 7 days. Later flown to Germany. He could not attend to his work thereafter,

suffered considerable pain and suffering, incurred a lot of expenditure on doctor's service, hospitalization,

medicines, nursing physiotherapy, special diet health and housing facilities etc. Later on, he died at the age

of 43. Defendant held negligent, as there was insufficient water in pool.

Interest on Damages: In addition to the damages allowed under various heads the plaintiff may be allowed

interest on the amount of damages from the date of his filing the petition or suit till the date of payment of

compensation.

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B. Injunction

- Is an order of the court directing the doing of some act or restraining the commission or

continuance of some act.

- Court has discretion to grant or refuse this remedy and when remedy by way of damages is

a sufficient relief, injunction will not be granted.

- Injunctions are provided under Sec. 36, 37, 38, 39, 40, 41 of the Specific Relief Act, 1963.

i) Temporary Injunction

- is only provisional, temporary. The procedure for grant of temporary or intertocutory

injunction is governed by order XXXIX of Civil Procedure Code, 1908.

- continues until the case is heard on its merits or until further order of court

ii) Perpetual Injunction

- It means permanent i.e. the order remains operational permanently. The court allow this

injunction after taking into consideration all the relevant facts and the case is finally: disposed of

on merits.

iii) Prohibitory Injunction

Forbids the defendant from doing some act which will interfere with the plaintiff's lawful rights

e.g. restraining defendant from committing or continuing the acts like trespass.

iv) Mandatory Injunction

- Order which requires the defendant to do some positive act e.g. orders to pull down which

causes obstruction to the plaintiff's right of light. These has defined under sec. 37 to 42 of the

Specific Relief Act, 1963.

("You should not construct the wall" is a prohibitory injunction and "You demolish the wall" is a

mandatory injunction.)

C. Specific Restitution of Property

Plaintiff has been wrongfully dispossessed of his movable or immovable property; the court may order that

specific property should be restored back to the plaintiff. e.g. in case of wrongful possession of land

ejectment. This is provided under sec. 5, 7 of the Specific Relief Act 1963.

IMPORTANT QUESTIONS

Q.1. What are the judicial remedies available in Law of Torts?

Q.2. Explain and differentiate between the two of the following-

i) Libel and slander

ii) Assault and Battery

iii) Licence and Lease

Q.3. Define abatement of nuisance.

Q.4. Explain the defences of privilege in defamation.

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Q.5. Explain innuendo.

Q.6. Explain trespass ab initio.

Q.7. Whether touching another person's body in anger causes any tort? Q.8.Whether one can get the

relief of specific restitution of property in Torts?

Q.9. Whether writing defamatory letter and then destroying it will cause any offence in Torts?

Q.10. If a mother locks up her 10 yrs. old son as he is not reading, will it cause any offence?

Q.11. Telling about a person that he is infected by AIDS, what offence is it?

Q.12. Whether writing a defamatory post-card will complete the requirement of publication if it is posted to

the person named?

Q.13. Whether telling truth about someone will cause defamation? Q.14. Whether injunction is extra-

judicial remedy?

Q.15. If A without any justification cuts the tip of the nose of B, what offence it will it be?

Q.16. A throws his drink on the face of B while drinking which falls on his face. What offence will it cause?

Q.17. If a person calls a lady 'Chalu', what offence will it be?

Q.18. A dies watching the news of defeat of Indian team on 'Z'TV. Who will be liable?

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UNIT - IV

CONSUMER MOVEMENT IN INDIA (Consumer Protection Act, 1986)

The Industrial revolution and the development in the trade and commerce has led the vast expansion of

business and trade as result a variety of consumer goods have appeared and a well organised sector of

manufactures and traders with better knowledge of markets has come into existence, thereby affecting the

relationship between the traders and the consumers making the principle of consumer sovereignty almost

inapplicable. The advertisements of goods and services influence the demand for the same by the

consumers though then may be manufacturing dejects or imperfections or short coming in the quality,

quantity and the purity of the goods or deficiency in the services rendered.

India has an ancient history of consumer protection. Consumer protection was part of its ancient culture

and formed the core of its administration. Kautilya's 'Arthasasthra' was the basic law of ancient India and

the same was strengthened with provisions to protect consumers. Sale of commodities was organised in

such a way that general public was not put to any trouble. If high profits (for the ruler) put general public in

trouble, then that trade activity was stopped immediately. For traders, profit limit was to be fixed. Even for

services timely response was prescribed, e.g. for sculpturist, carpenter, tailor, washerman, rules for the

protection of consumer interest were given time period, i.e. light coloured once in five days, blue dark

coloured in 6 days etc. failing which had to pay fine.

The Superintendent of Commerce was to Supervise weights and measures. For short fall in weighing/

measuring, sellers were fined heavily. Weights and measures used in trade were manufactured only by the

official agency responsible for standardization and inspected every four months. Sellers passing off inferior

products as superior were fined eight times the value of articles thus sold for adulterated things, the seller

was not only fined but also compelled to make good the loss.

Indeed, the people in different parts of the country today celebrate indifferent ways the dates dedicated to

the remembrance of ancient periods during which, it is believed, people's welfare was the first concern of

the rulers. 'Onam' in Kerala is one such example. The folk songs relating to Onam celebrate the fact that

during the rule of king, Mahabali, people were not at all exploited in any manner. It is believed that there

were not shortages or malpractices in weights or measures and nor excessive advertisements.

Consumer Cooperative are sometimes mentioned as the starting point of the Consumer Movement. In

general, consumer cooperatives have been successful in halting some of the abuses of the monopolies

and in improving conditions of the lower income classes. They have undertaken consumer educational,

elementary product improvement and other projects of interests to members as well as to other low income

consumers. However, in contrast to activities to which the term 'Consumer Movement' has been applied,

co-operatives have sought to perform certain services for themselves, thus replacing private enterprises in

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these areas. On the hand, movement activities have been directed towards modification of business

practices, either with or without the aid of government.

Role of consumer co-operatives in consumer oriented marketing system is important as it has achieved

great success in European centuries, as a countervailing force against the traditional marketing

mechanism and promote the consumer interests. Encouraged by governments of many countries and

India emphasized consumer co-operative. While the first consumer cooperative in Great Britain and the

U.S.A. come up in 1844, in India there was not much development till 1962. The first consumer co-operative

store in India came up in Madras in 1904. However, the proper appearance of consumer co-operatives in

India could be seen only in 1918, increasingly their number to 88 in 1920-21 and 323 in 1928-29. But in

1936-37, their number reduced to 25 as they were still not organisations of consumers on felt needs.

Phase - II

Second World War and the accompanying scarcity situation increased their numbers again to 396. But lack

of suitable leadership, corruption, ill paid staff and lack of storage facilities kept them in a state of

malfunction. In 1950-51, the number of consumer co-operatives reached 9674 with the membership of 19

million members and annual sale turnover of Rs. 76 million.

Phase - III

Decontrol and derationing in 1951-52 meant a setback to the co-operative movement. Revival come in

1962. In 1960, an all India seminar on consumer co-operatives was held in Bombay for a critical appraisal of

the entire consumer scenario. From the third five year plan onwards, there has been much emphasis the

development of consumer cooperatives by the governments to make then viable. In 1975-76, Rs. 5.5

crores were invested for consumer co-operatives in accordance with the 20 point programme. Consumer

cooperatives are very important for improving the distribution of essential goods through Public Distribution

System (PDS) and combating inflation. It has been announced that 10 to 20% of the suppliers of baby

foods, bicycles, blades, cloth and students needs etc. would be through co-operatives under P.D.S.

account for about 28% of retail outlets (fair price shops) in rural areas. Nearly 51,000 village societies and

their various branches distributed Rs. 25-crores worth of consumer articles in rural areas in 1989-90.

However, the cooperative movement treaded its path amount the consumers and as was the case in the

west, in India too the cooperative movement was not organised as a measure for consumer protection of

the modern type. Consumer movement did not make its presence felt in India till the 1960' when organised

consumer groups come up.

Consumer Movement in the Modern Period

Consumer movement in the present form into being only in the 1930's in the West and only in the 60's in

India. The basic objectives of consumer movement worldwide are as follows:-

1. To provide opportunity to the consumer to buy intelligently

2. Recognition of reasonable consumer requests.

3. Protection against fraud, misrepresentation, unsanitary and unjust products.

4. Participation of consumer representatives in management of aspects affecting consumers.

5. Promoting consumer interests.

The basic reason for the development of consumer movement in India is different from those in the west. In

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western countries consumer movement was the result of post industrialization affluence.

In, India the basis reasons for the consumer's movement have been:-

1. Shortage of Consumer products, inflation of early 1970's.

2. Adulteration and Black Market.

3. Lack of product choices due to lack of development in technology.

4. Thrust of consumer movement in India has been on availability, purity and prices.

The factors which stimulated the consumer movement in recent years are:

(a) Increasing consumer awareness

(b) Declining quality of goods and services.

(c) Increasing consumer expectations because of consumer education.

(d) Influence of the pioneers and leaders of the consumer movement.

(e) Organised effort through consumer societies.

Stages of Development of the Consumer Movement

The Consumer Movement today is undergoing a silent revolution. The movement is bringing qualitative

and quantitative changes in the lives of people enabling them to organise themselves as an effective force

to reckon with. But the path to reach this stage has not been easy. It has been a struggle against bad

business which always put profit before fairness in transactions.

The first stage of movement was more representional in nature i.e. to make consumers aware of their rights

through speeches and articles in newspapers and magazines and holding exhibitions.

The second stage was direct action based on boy cutting of goods, picketing and demonstration. However,

direct action had its own limitations that led to the third stage of professionally managed consumer

organisations. From educational activities and handling complaints, it ventured into areas involving

lobbying, litigation and laboratory testing. This gave good results. Thus, for instance business sector has

started taking notice and co-operating with the movement. It has played a role in process of passing the

Consumer Protection Act, 1986, which has led to the fourth stage. The Act enshrines the consumer rights

and provides for setting up of quasi-judicial authorities for redressal of consumer disputes. This acts takes

justice in the socio-economic sphere a step closer to the common man.

Some Important Consumer Organizations

Consumer movement in India had its beginning in the early part of this century. The just known collective

body of consumers in India was setup in 1915 with the 'Passengers and Traffic Relief Association (PATRA)

in Bombay.

The first organisation to really make an impact was the Consumer Guidance Society of India (CGSI)

Bombay started by nine housewives in 1966 with Mrs. Leela Jog as its founder secretary.

The second consumer organisation which made quite an impact in making the cause of consumers known

throughout the country is the Karnataka Consumer Services Society (KCSS) formed in 1970.

Upto 1986 in several parts of India the consumer organisation were doing their activities and trying to

spread the consumer protection movement. On the basis of the report of the secretary General on

Consumer Protection dt. 27th May 1983, the United Nations Economic and Social Council recommended

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that the world governments should develop strengthen and implement a coherent consumer protection

policy taking into consideration the guidelines set out-therein. The governments were to further provide

adequate infrastructure including the bodies as well as financial facilities to develop, implement and

monitors consumer protection policies. The introduction of new products in the developing countries was to

be assessed in relation to the local conditions having regard to the existing production, distribution and

consumption patterns of the country or region concerned. With reference to the consumer movement and

the international obligations for protection of the rights of the consumers, provision has been made in the

said Act with the object of interpreting the relevant law in a rational manner and for achieving the objective

set forth in the Act. A rational approach and not the technical approach is the mandating law.

According to the Preamble of the Act, the Act was enacted, 'to provide for the protection of the interests of

consumers.

The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate

directly in the market economy. It attempts to remove the helplessness of a consumer which he faces

against powerful business, described as 'a network of rackets' or society in which producers have secured

power.

The Act is a milestone in history of socio-economic legislation and is directed towards achieving public

benefit.

Consumer Protection Act, 1986

Complaint Sec. 2(1)(b)

i) A consumer, or

ii) a voluntary consumer association registered under the Companies Act, 1956 or under any other law

for the time being in force, or

iii) the Central Govt. or any state Govt. or

iv) one or more consumers, where there are numerous consumers having the same interest, who or

which makes a complaint.

The literal meaning of Complainant is a person who has some grievance or injury and makes an allegation

against another. But the word complaint includes voluntary organisation, central govt. or state govt. Thus a

person (natural, artificial) seeking redress before the Consumer Redressal forum under sec. 12, State

Commission under sec. 17, National Commission 21 must come within any of the said 4 categories,

otherwise he has no locus-stand to proceed with this case.).

Complaint : Literal meaning of complaint is grievance, distress, dissatisfaction, objection, wrong or injury.

Consumer Protection Act 1986, defined Complaint Under sec. 2( 1 ) (c) which means any allegation by the

complaint in writing with a view to obtaining any relief in regard to the following matters:

(i) an unfair trade practice or a restrictive trade practice has been adopted by any trader;

(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 deficiency in

any respect;

(iv) a trader has changed for the goods mentioned in the complaint a price in excess of the price fixed by

or under any law for the time being in force or displayed on the goods or any package containing

such goods.

(v) goods which will be hazardous to life and safety when used, one being offered for sale to the public

in contribution of the provisions of any law for the time being in force requiring treaders to display

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information in regard to the contents, manner and effect of use of such goods.

The term complaint as provided under Consumer Protection Act, 1986 is equivalent to a plaint of a civil suit.

A civil suit is instituted by presenting a plaint in the Court; whereas a case is instituted by presenting a

complaint in the consumer redressal forum. But it does not have the same meaning as the term 'complaint'

defined in sec. 2(d) of the Criminal Procedure Code (1973).

Complaint can be only in relation to five matters -

1) Unfair Trade Practice or Restrictive Trade Practice

i) Unfair Trade Practice: Defined under 2(1 )(r) of the Act, means, trade practice which, for the

purpose of promoting the sale, use or supply of any goods or for the provision of any services,

adopts any unfair methods or unfair or deceptive practice.

ii) Restrictive Trade Practice: It has been defined in sec. 2(1 )(m). It means any trade practice which

requires a consumer to buy, hire or avail of any goods or, impose the price, conditions of delivery or

effect supplies in the market.

2) Defect in Goods

The word 'goods' has not been defined in the Consumer Protection Act. sec. 2(1 )(i) of the Act state

'goods' means as defined in the sale of Goods Act, 1930. According to this Act 'goods' means every

kind of movable property and includes stock and shares, growing every kind of movable property

and includes stock and shares, growing crops, grass and things attached to or forming part of the

land which are agreed to be severed before sale.

The term 'defect' has been defined in sec. 2(1) (f) of the Consumer Protection Act. It provides defect

means any fault, imperfection or short coming 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 as is claimed by

the traders in any manner whatsoever in relation to any goods.

3) Deficiency in 'Service': Service is also defined under 2(1 )(0) means, 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, supply of electrical or other energy, etc. but

does not included the rendering of any service free of change or under a contract of personal

service.

a) Deficiency: It is defined in sec. 2(1)(g) of the Consumer Protection Act, 1986. It means any fault,

imperfection, shortcoming of 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. For

examples fault or negligence in setting the claim by the insurance company constitutes deficiency.

The term 'consumer' is defined in Sec 2(d) of the Consumer Protection Act 1986 in two parts ;-

- One in reference to a consumer who purchases goods and second in reference to a person

who hires services.

- Act covers transaction for supply of goods and rendering of services namely commodity

market and services market.

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- The first requisite of "Consumer" is that the transaction should be for a consideration.

- Consumer means person who buys goods for consideration. Consideration is confined to

sales for a money consideration and would not apply to a barter or exchange of goods unless

the price is calculated in terms of money.

- It is not necessary that the consideration should be paid at once. It may be partly paid or

partly promised or may have to be paid under some deferred system of payment, e.g., hire

purchase resulting in credit sale.

- Term 'consumer' also includes any person who uses goods with the permission of the buyer

though he is not himself a buyer.

Trade Sales: The term 'consumer' would not include a buyer who purchases for his trade. Act says that

term 'consumer' does not include a person who obtains goods for rebate or for any commercial purpose.

Act is trying to protect consumer against traders and manufacturers.

Dealing as consumer and not for commercial purposes.

"Dealing as a consumer" is identified by the test that the buyer should not make the contract in the

course of business nor hold himself out as doing so.

A person who buys good and uses them himself exclusively for the purpose of earning his livelihood

by means of self employment is within the definition of the expression consumer.

The term 'commercial' is pertaining to commerce. It means, connected with or engaged in

commerce, mercantile having profit as the main aim whereas the word "commerce" means financial

transaction especially buying and selling of merchandise on a large scale.

Hirer of Services

Second category of consumer is that of user of services

Term 'consumer' includes a person who hires or avails of any services for a consideration.

Word includes all kinds of professional services, be it the routine services of a barber or technical

services of highly qualified person.

Word 'service' has been defined in Sec. 2 (0) as meaning the 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, supply of electrical or other energy, boarding or loading

or both, entertainment, amusement.

Services must be of commercial nature in the sense that they must be on payment which may be

either in cash or kind.

In this category of consumer, also any beneficiary of the service would be included though he is not

hirer himself, provided that he is using the services with the approval of the hirer.

Use of words 'potential user' does not have the effect of excluding medical services from the

purview of the word 'service'. It seems that the expression 'potential users' was employed to

emphasise services which are in public use and thereby to cover all public professions.

In Indian Medical Association vs V.P. Shanta, the Supreme Court held that services rendered by

medical practitioners, hospitals and nursing homes, health centre dispensaries whether Govt. or

private would also be covered by the Act where they are on paid basis.

Prospective investor in future goods is not a consumer.

The definition of consumer includes the user of goods other than the person who buys such goods

or services.

Aims and Objects of the Act

The Act provides for better protection of the interest of consumers and for that purpose makes

provision for the establishment of Consumer Councils and other authorities for the settlement of

consumer disputes and for other connected matters.

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The Act seeks to protect the consumer in the following respects -

1. The right to be protected against marketing of goods which are hazardous to life and property.

- If consumer has been victimized into purchasing goods which have injured his person or

property he will have a speedy and effective remedy under the redressal hierarchy constituted

under the Act.

- E.g., adulterated food - dangerous to life, weak cement.

2. Right to Information:

- Consumer has been given the right to be informed by the producer about the quality,

potency, purity and standard of goods, he buys.

- Intended to save the consumer from unfair trade practices like false and misleading

description about the nature and quality of goods.

3 Right to access to variety and at competitive prices:

- Central Council constituted under the Act has been charged with the responsibility of

bringing about the organization of market and market price in such a way that the goods with a

variety are being offered at competitive prices.

- It is only then the consumer will have access to variety and will be able to enjoy the benefit of

competitive prices.

4 Right to due attention at appropriate forums:

- Central council is charged with the responsibility of assuring to consumers that they would

be heard as of right by appropriate forums and consumer will receive due attention and

consideration from such forums.

- Thus duty of the council is to organize and compose the different forums under the Act.

5. Right to Consumer Education

- For proper functioning of-legal system, it is necessary that knowledge of availability of legal

remedy should be so widely disseminated that people as a whole become conscious of their

rights.

- This has been made mission of Consumer Protection Act and Central Council has been

charged with the responsibility to provide to the people with proper education in terms of their

remedies under the Act.

- Once people are made conscious of their rights they may perhaps feel empowered to

struggle against exploitation by manufacturers and traders.

- People's awareness is likely to prove a better tool for putting the trade on some level of

disciplines than tonnes of government control.

Authorities under the Act - Central Consumer Protection Council (Sec 4)

IMPORTANT QUESTIONS

Q.1. When did the Consumer Protection Act come into force? Describe the places and things to which

this act does not apply.

Q.2. Explain the procedure adopted by the District Forum.

Q.3. What do you understand by Consumer Protection Councils and State Consumer Protection

Councils? Discuss its objects.

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Q.4. Explain the following-

i. Consumer dispute.

ii. Complainant.

iii. Unfair trade practice.

Q.5. Whether non-publication of Telephone Directory will come under the purview of deficiency?

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UNIT - V

CONSUMER PROTECTION COUNSIL

Central Govt. is required by the Act to establish by notification a council to be known as Central Consumer

Protection Council (in short Central Council). Its composition is as follows:

1. The Minister in charge of the Department of Consumer Affiars and civil supplies in the Central Govt.

shall be its chairman and

2. Such other official or non official members representing such interest as may be prescribed.

Membership is left to the rule-making power of Govt. The consumer protection rules were promulgated in

1987. The membership of the council is given in Sec. 3 of the Consumer Protection Rules 2006. The

Central Council shall consist & not exceeding 35 members:-

Object of Central Council (Sec. 6)

The objects of the Central Council shall be to promote and protect and rights of the consumers such as:-

(a) The rights to be protected against the marketing of goods and services which are hazardous of life

and property;

(b) The right to be informed about the quality, quantity, purity, standard and price of goods or services,

as the case may be so as to protect the consumer against unfair trade practices;

(c) The right to be assured, wherever possible, access to a variety of goods and services at competitive

prices;

(d) The right to be heard and to be assured that consumer's interests will receive due consideration at

appropriate forum;

(e) The right to seek redressal against unfair trade practices or restrictive trade practices or

unscrupulous exploitation of consumer's, and

(f) The right to consumer education.

Term of council is 3 years.

Consumer Disputes Redressal Agencies

Establishment: The following agencies are required to be established for the purposes of Act. (Section 9)

1. Consumer disputes redressal forum to be known as District forum is to be established by State

Govt. in each district of state by means of notification.

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2. A consumer disputes redressal commission to be known as State Commission has also to be

established by the state Govt. in state by means of notification.

3. A National Consumer Disputes Redressal Commission known as National Commission to be

established by central Govt. by means of notification

Act, thus, envisages a hierarchy of three redressal forums -

a) District Forum;

b) State Commission; and

c) National Commission.

DISTRICT FORUM

Composition (Sec. 10)

1) President person who is or has been qualified to be District Judge.

2) Two other members one of whom shall be a woman. The two members shall have the following

qualifications-

I. To be less than 35 years of age.

II. Possess a bachelor's degree from a recognized University.

III. Be person of ability, integrity and standing and have adequate knowledge and experience of

at least 10 years in dealing with problems relating to economics, law, commerce, industry,

accountancy, public affairs or administration.

Disqualification of members [Proviso to Section 10(1) a] : Person shall be disqualified for appointment as a

member in the following situations :

1. has been convicted and sentenced to imprisonment for an offence which involves moral

turpitude, or

2. is an undischarged insolvent, or

3. is of unsound mind and stands so declared by a competent court, or

4. has been or is dismissed from service of govt. or a body corporate owned or controlled by

Govt. or

5. have such other disqualifications as may be prescribed by State govt.

Method of Appointment Sec. 10(1-A): Every appointment as mentioned above shall be made by State

govt. on the recommendation of selection committee consisting of following :

1. President of State commission: - Chairman

2. Secretary (Law department of State) - Member

3. Secretary in charge of the department dealing with consumer affair of state - Member

Where chairman of selection committee is absent or is otherwise unable to act as chairman of selection

committee the State govt. may refer the matter to Chief Justice of High Court for nominating a sitting judge

of High Court to act as Chairman.

Term of Office & Salary [Sec. 10(2)]

- Every member of district forum shall hold office for a term of 5 years or upto the age of 65

years whichever is earlier.

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- Salary or honorarium or other allowance payable to them and other terms of appointment

shall be such as may be prescribed by state govt.

Jurisdiction of district forum (Sec 11)

A. Pecuniary jurisdiction [Sec 11(1)]

District forum shall have jurisdiction to entertain complaints where the sale of goods or services and

the compensation claimed does not exceed Rs. 20 Lakhs.

B. The territorial jurisdiction for the purpose of complaint is as follows -

a) Complaint may be filed at the place where the opposite party or each of opposite parties

actually and voluntarily resides or carries on business or personally works for gain.

b) At the place where any of the opposite parties falls in the above category, provided that in

reference to others either permission of the district forum is taken or acquiescence in

institution of suit of such of opposite parties who do not reside or carry on business.

c) At the place where the cause of action wholly or in part arises.

Grounds and Manner of Making Complaint

Definition of "Complaint" and its ground: A "Complaint" is defined in sec 2(c) as the making of any

allegation in writing to the following effect

1. That as a result of any unfair or restrictive trade practice adopted by any trader, the complainant has

suffered loss or damage

2. That the goods mentioned in the complaint suffer from one or more defects.

3. That the services mentioned in the complaint suffer from deficiency in any respect.

4. That the traders have charged higher price than displayed on the goods or any package containing

such goods.

5. That goods which will be hazardous to life and safety when used are offered for sale without

displaying information in regard to content, manner and effect of use of such goods.

The word 'complainant' as defined in sec 2 (b) means:

1. A consumer

2. Any voluntary consumer association registered under the Companies Act. 1956 or under any other

law for the time being in force.

3. Central govt. or any State govt.

4. One or more consumers where there are numerous consumers having the same interest. Who Can

File a Complaint [Sec12 (1)] : A complaint in relation to any goods sold or delivered or agreed to be

sold or delivered or any service provided or agreed to be provided may be filed with

District forum by anyone of following -

1. The consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such

services provided or agreed to be provided.

2. Any recognized consumer association even if the person who is the recipient of goods or services is

not a member of the association.

3. By any or more consumers where there are numerous consumers having the same interest with the

permission of district forum.

4. By the Central or State govt.

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Complaint is to be Accompanied by Court Fee [Sec 12 (2)]

Every complaint as mentioned above shall be accompanied with such amount of fee and payable in such a

manner as may be prescribed. This provision is added by 2002 Amendment Act.

Admissibility of complaint [Sec 12 (3)] (new provision introduced by Amendment act 2002.) Provision

with regard to admissibility of complaint is as under -

1) On receipt of complaint the district forum may allow the complaint to be proceeded with or rejected.

Before rejecting the complaint the complainant has to be provided with an opportunity to explain his

case.

2) The admissibility of the complaint shall ordinarily be decided within 21 days from the date on which

the complaint was received.

3) After complaint is admitted it shall be proceeded with in accordance with the provision of this Act.

Procedure on admission of complaint (Sec 13): Sec 13 has also been substituted by Amendment Act

2002. The sec. earlier dealt with procedure on receipt of complaint. The procedure is as follows:-

1) District forum shall refer a copy of the admitted complaint within 21 days from the date of admission

to opposite party directing him to give his version of the case within 30 days or such extended period

not exceeding 15 days as may granted by such district forum.

2) After giving due opportunity to opposite party to represent his case the district forum shall proceed

to settle the case.

Defect under section 2 (f ) means any fault, imperfection or shortcoming in the quality, quantity, purity or

standard which is required to be maintained by any law for the time being in force or which trader claimed

that the goods possessed.

- In respect of services the complaint must refer to some 'deficiency'. Term 'deficiency'

defined u/s 2(1) (g) means any fault, imperfection, shortcoming or inadequacy in the quality,

nature or performance of service 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 the person under contract.

- Word 'trader' means any person who sells or distributes any goods for sale and includes the

manufacturer of those goods.

- Word 'manufacturer' defined in sec 0) means any person -

1) who produces,

2) who assembles and,

3) who puts his trade name on the goods in question.

- For ascertaining defect in goods alleged, it will be sent for testing in laboratory with in 45

days which can be extended.

- Report of laboratory will be forwared to opposite party.

- Parties can file their objection in writing, if any.

Sec 13(2) prescribes the procedure in case of deficiency in service.

In this case also the district forum will send a copy of complaint to the opposite party.

- Reply can be filed within 30 days which can be extended by 15 days.

- For the purpose of proceedings the district forums have been vested with some powers as

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are vested in civil courts under CPC. They are -

1. Summoning and enforcing attendance of any defendant or witness and examining witness on oath.

2. Discovery and production of any document or other material object producible as evidence.

3. Reception of evidence on affidavits.

4. Issuing any commission for the examination of any witness.

5. Any other matter.

After giving due opportunity to the opposite party to represent his case the district forum shall proceed to

settle the case.

- If the opposite party omits or fails to represent his case, the district forum can pass ex parte

order.

- Every complaint shall be heard as expeditiously as possible. An endeavor shall be made to

decide the complaint within 3 months from the date of receipt of notice by the opposite party

where the goods do not require any testing and within 5 months where any testing or analysis of

the goods is needed.

- No adjournment shall be ordinarily allowed unless sufficient cause is shown and reasons for

adjournment have been recorded in writing by the forum.

Finding of the District Forum (Sec. 14): Section 14 has also been amended by the C.P. (Amendment)

Act, 2002. The present provision is as under:-

If after conducting the proceeding under section 13, the District Forum is satisfied that the goods

complained against suffer from any of the defects specified in the complaint, or that any the allegations

contained in the complaint about the services are proved, it shall order the opposite party to do one or more

of the following things stated in Sec. 14(1), namely :-

a) To remove the defect pointed out by the appropriate laboratory from the goods in question.

b) To replace the goods with new goods of similar description which shall be free from any defect.

c) To return to the complainant the price, or, as the case may be, the changes, paid by the complaint;

d) To pay such amount as may be awarded by it as compensation to the consumer for any loss or injury

suffered by the consumer due to the negligence of the opposite party,

Provided that the District Forum shall have the power to grant punitive damages in such

circumstances as it deems fit;

e) To remove the defects in the goods or definitions in the services in questions;

f) To discontinue the unfair trade practice or the restrictive trade practice or not to repeat them;

g) To withdraw the hazardous goods from being offered for sale;

h) To cease manufacture of hazardous goods and to desist from offering services which are

hazardous in nature;

i) When the injury has been suffered by a large number of consumers, who are not identifiable

conveniently, the opposite party may be required to pay such as may be determined by the

forum;

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ii) To issue corrective advertisement to neutralize the effect of any misleading advertisement.

i) To provide for adequate costs to parties;

The Order Should be a Speaking Order: It is necessary that the Forum should take into account the

evidence and the documents produced by the parties and the order of the Forum should be a speaking

order i.e. it should give reasons for the Order.

In K. S. Sidhu V. Seniors Executive Engineer, the complaint filed before the District Forum was dismissed

by a non-speaking Order. The Order did not discuss the evidence and the documents submitted before it. It

was held that such an order was unjust and arbitrary and was liable to be set aside on that ground.

Conduct of Proceeding and Quorum, etc: The Consumer Protection Act makes the following provisions

regarding the conduct of the proceedings of the District Forum :

1) Every proceeding referred to in Sec. 14(1) shall be conducted by the President of the District Forum

and at least one member thereof sitting together. However, where the member, for any reason, is

unable to conduct the proceeding till it is completed, the President and the other member shall

conduct such proceeding de novo.

2) Every order made by the District Forum mentioned above shall be signed by its President and the

member or members who conducted the proceedings. Provided that where the proceeding is

conducted by the President and one member and they differ on any point, they shall state the point

or points on which they differ and refer the same to the other member for hearing on such point or

points. The opinion of the majority shall be the Order of the District Forum.

3) The procedure relating to the conduct of the meetings of the District Forum, its sitting and other

matters shall be such as may be prescribed by the State Government.

The Quorum: From the provisions contained in Sec. 14(2) and 14(2A), it is evident that-

1) The proceedings are to be conducted by the President of the District Forum and at least one

member thereof sitting together, and

2) The order of the District Forum is to be signed by its President and the member or members who

conducted the proceedings.

Provided that where the proceeding is conducted by the President and one member and they differ on any

point or points, they shall refer the same on those points to the other members for hearing such points and

the opinion of the majority shall be the Order of the District Forum. When there is no quorum required by

sec. 14(2) for the proceedings of the Forum it may be adjourned by the Reader of the court or a member or

President sitting singly. There is nothing wrong in a single member adjourning the case for want of quorum.

Absence of the President of District Forum or State Commission

- According to Section 14, every proceeding shall be conducted by the President and at least

one member, or members, who conducted the proceedings. There have been various decisions

to further explain the implications of the above stated provisions.

- The West Bengal State Commission has held that no proceedings of a Consumer Forum

can be conducted in the absence of the President.

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- Sometimes the question has arisen as to what ought to be the position when the President is

absent for some reason, like non-appointment, illness, or inability to be present on account of

having gone abroad, etc.

In Gulzari Lal Agarwal v. The Accounts Officer the Supreme Court has held that harmonious construction

should be given to various provisions. According to Sec. 14(2) and 14(2A), C.P.A., the President with at

least one member sitting together shall conduct the proceeding. That is so when the President is functional.

When he is non-functional, sub-rules (9) and (10) of Rule 6 of the West Bengal Consumer Protection Rules,

1987 (in the instant case) shall govern the proceedings. According to sub-rule (9), where any vacancy

occurs in the office of the President of the State Commission, the senior most (in order of appointment)

member holding office for the time being, shall discharge the function of the President until a person is

appointed to fill such vacancy. The sub-rule is made to make the State Commission functional even in the

absence of the President.

- The Supreme Court quashed the order of the National Commission holding the order

passed by only two members of the State Commission as void in view of the absence of the

President of the State Commission.

Absence of President of National Commission

The Consumer Protection Rule have been amended by the Consumer Protection (Amendment) Rules,

1997 w.e.f. 27th January, 1997 to provide for the functioning of the National Commission even if its

President is unable to discharge the functions owing to absence, illness or otherwise.

In such situation:

1) The senior most member of the National Commission with judicial background, if authorized so to

do by the President in writing, shall discharge the functions of the President until the day on which

the President resumes the charge of his functions, [Rule 12, sub-rule (6)].

2) The proceeding of the National Commission shall be conducted by the senior-most member, as

stated above and at least two members thereof sitting together. Rule 15(1).

3) Every order shall be signed by the President/Senior most member, as stated above and at least two

members who conducted the proceedings, and if there is any difference of opinion among

themselves the opinion of the majority shall be the order of the National Commission. Rule 15A(2).

Appeals from District Forum to State Commission (Session 15)

Any person aggrieved by an order made by the District Forum may prefer an appeal against such

order to the State Commission within a period of 30 days from the date of the order, in such form and

manner as may be prescribed. The State Commission may entertain an appeal after the expiry of

the said period of 30 days if it is satisfied that there was sufficient cause for not filing it within that

period.

Deposit of Certain Amount as a Pre-condition for Appeal

The C.P. (Amendment) Act, 2002 requires that no appeal by a person, who is required to pay any

amount in terms of an order of the District Forum, shall be entertained by the State Commission

unless the appellant has deposited in the prescribed manner 50% of that amount or Rs. 25,000

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whichever is less.

Limitation Period Runs from the Date of Communication of the Order: It may be noted that the period

of limitation of 30 days begins from the date, the order of the District Forum is communicated.

Condonation of Delay

- The delay in filing an appeal may be condoned if the appellant is able to show that there was

sufficient cause for such delay. In Vice Chairman, D.D.A., v. a.p. Gauba, there was a delay of 38

days by the Delhi Development Authority in making the appeal. The grounds for delay were the

examining of the case from all its aspects at different levels. It was held that delay caused by

inter office consultations is not sufficient cause and hence the delay was not condoned.

- In Delhi Development Authority v. I.S. Narula, certified copy of the order of the District Forum

was received by the appellant on 13-7-94. The appeal was filed on 27-9-94. The alleged reason

for the delay was public holidays on 14th and 15th August, 1984, strike in Tis Hazari Court, and

procedural delay in obtaining sanction of D.D.A. by the Counsel for filing the appeal. The

Supreme Court observed that the power of condonation should be exercised liberally. There

was held to be sufficient cause, and, hence, the delay was condoned.

Ex Parte Order

- If the opposite party fails to appear and contest, the District Forum may proceed and pass an

ex parte order. If sufficient cause is shown for not appearing in the case, an ex parte order may

be set aside.

The District Forum, which has the right to pass an ex parte order, has also the power to set aside

the same.

- In Maya Mitra v. K. P. Equipments it has been held that the District Forum, which has the right

to decide the case ex parte if the opposite party or his agent fails to appear on the date of the

hearing, has also the right to set aside the order if sufficient cause is shown provided that such a

prayer is made early without any undue delay.

- In Janak Mehta v. Allahabad Bank the question before the J. & K. State Commission was

whether a District Forum can set aside an ex parte order passed by it. It was held that one of the

methods adopted to prolong the proceedings is first to allow the case to proceed ex parte and

then waste further time in getting the ex parte order set aside in enquiries and in recording

evidence. The Civil Procedure Code is applicable to Consumer Protection Act to a limited

extent. Therefore, the Forum has no power to set aside an ex parte order.

- It appears that the above decision needs that the opposite party is not trying to

unnecessarily waste the time of the Forum, but has genuine reasons for not appearing in the

case.

Dismissal of Complaint in Default

- If the complainant fails to appear on the date of hearing the District Forum may dismiss the

complaint in default. Such a dismissal of the complaint may be set aside and the complaint may

be restored. In Kamlesh Bansal v. Balaji Land Traders, the complainant field a complaint and he

failed to appear on the date fixed by the District Forum for ex parte evidence. Within 23 days of

dismissal of complaint, the complainant applied for restoration of the complaint. The said

application was rejected on the ground that the District Forum could not restore the complaint. It

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has been held by the Delhi State Commission that the Commission while exercising appellate

jurisdiction, can set aside the order of the District Forum dismissing the said application for

restoring the complaint.

STATE COMMISSION

Composition of the State Commission (Sec. 16): Each State Commission shall consist of the following -

a) a person who is or has been a judge of a High Court. He shall be appointed by the State

Government, and shall be its President.

Provided that no appointment under this clause shall be made except after consultation with the

Chief Justice of the High Court;

b) not less than two, and not more than such number of members, as may be prescribed, one of them

shall be a woman. They shall have the following qualifications :-

i. be not less than 35 years of age;

ii. possess a bachelor's degree from a recognized university; and

iii. be persons of ability, integrity and standing and have adequate knowledge and experience

of at least ten years in dealing with problems relating to economics, law, commerce, accountancy,

industry, public affairs of administration.

Provided that at least 50% of the members should have judicial background.

Disqualifications of Members: A person shall be disqualified for an appointment as a member, if he,

a) has been convicted and sentenced to imprisonment for an offence involving moral turpitude; or

b) is an undischarged insolvent; or

c) is of unsound mind and stands so declared by a competent court; or

d) has been removed or dismissed from service of the Government, or a body corporate owned or

controlled by the Government; or

e) has such financial or other interest as is likely to affect prejudicially the discharge by him of his

functions as member; or

f) has such other disqualifications as may be prescribed by the State Government.

Appointment of Members: Every appointment as stated above shall be made by the State Government

on the recommendations of the Selection Committee consisting of the following :

1. The President of the State Commission Chairman;

2. Secretary, Law Department - the State Member; and

3. Secretary, in charge of the Department dealing with Consumer Affairs of the State-Member.

Establishment of Benches

- The jurisdiction, powers and authority of the State Commission may be exercised by

Benches thereof.

- A Bench may be constituted by the President with one or more members as the President

may deem fit. The provision of more Benches has been introduced by the C.P. (Amendment)

Act, 2002.

Salary and Terms of Service

1) The salary or honorarium and other allowances payable to the members and the other terms of

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service shall be such as may be prescribed by the State Government.

2) Every member of the State Commission shall hold office for a term of 5 years or upto the age of 67

years, whichever is earlier.

3) A member shall be eligible for re-appointment for another term of 5 years or upto the age of 67


4) A member may resign his office in writing by addressing it to the State Government. His vacancy

may be filled by appointment as per the above mentioned procedure.

Jurisdiction of the State Commission (Sec. 17)

1) Pecuniary Jurisdiction: The State Commission shall entertain complaints where the value of the

goods or services and compensation, if any, claimed exceeds Rs. 20 Lakhs but does not exceed

rupees one crore. By the increase in amount of jurisdiction there will be lesser number of direct

complaints which will go to the National Commission who will have more time for hearing appeals.

2) To entertain appeals against the orders of any District Forum within the State;

3) To call for the records and pass appropriate orders in any consumer dispute which is pending before

or has been decided by any District Forum within the State. Such power can be exercised where it

appears to the State Commission that such District Forum 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.

Transfer of Cases (Section 17 -A):

On an application of the complainant or on its own motion, the State Commission may, at any stage

of the proceeding transfer any complaint pending before the District Forum to another District

Forum within the State if the interest of justice so requires.

The above-said provision has been introduced by the C.P. (Amendment) Act, 2002

Circuit Benches (Section 17-B)

The State Commission shall ordinarily function in the State Capital but may perform its functions at

such other place as the State Government may, in consultation with the State Commission, notify in

the official Gazette, from time to time.

The provision has also been introduced by the Amendment Act, 2002 and the provision of Circuit

Benches could be of great convenience to the litigants who are far away from the State Capital.

Procedure Applicable to State Commission (Sec. 18)

The provision of sections 12, 13 and 14 and rules made thereunder for the disposal of complaints by

the District Forum shall, with such modifications as may be necessary, be applicable to the disposal

of disputes by the State Commission.

Appeals from the State Commission to the National Commission (Section 19)

It has been noted above that one of the jurisdiction of the State Commission is to entertain

complaints where the value of the goods or services and compensation, if any, claimed exceeds Rs.

20 lakhs but does not-exceed Rs. one crore.

Any person aggrieved by an order made by the State Commission in the exercise of above said

jurisdiction may prefer an appeal against such order to the National Commission.

Such appeal, shall be made within a period of 30 days from the date of the order.

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It shall be in such form and manner as may be prescribed. National Commission may, however,

entertain an appeal after the expiry of the said period of 30 days if it is satisfied that there was

sufficient cause for not filing it within that period.

Deposit of Required Amount as a Pre-condition for Appeal (Second Proviso to Section 19)

According to the new provision introduced by the Amendment Act, 2002, no appeal by a person,

who is required to pay any amount in terms of the order of the State Commission, shall be

entertained by the National Commission unless the appellant has deposited in the prescribed

manner 50% of the amount or Rs. 35,000/-, whichever is less.

Hearing of appeal (Section 19-A): Prior to the Amendment Act, there was no provision regarding the time

limit, etc for hearing the appeal.

Section 19-A is a new provision introduced by the Amendment Act. According to this provision-

a) An appeal filed before the State Commission or the National commission shall be heard as

expeditiously as possible and an endeavour shall be made to finally dispose of the appeal within a

period of 90 days from the date of admission.

b) No adjournment shall be ordinarily granted by the State Commission or the National Commission,

as the case may be, unless sufficient cause is shown and reasons for the grant of adjournment have

been recorded in writing by such Commission.

c) The State Commission or the National Commission, as the case may be, shall make such orders as

to costs occasioned by the adjournment as may be provided by the regulations made under this Act.

d) In the event of appeal being disposed of after the period so specified, the State Commission or the

National Commission, as the case may be, shall record in writing the reasons for the same at the

time of the said appeal.

National Commission: Composition of the National Commission (Sec.20) The National Commission shall

consist of the following:

1) Its President who is or has been judge of the Supreme Court. He shall be appointed by the Central

Government His, appointment shall not be made except after consultation with the Chief Justice of

India.

2) Not less than four, and not more than such number of members, as may be prescribed, one of them

shall be a woman. These members shall have the following qualifications:

i) be not less than 35 years of age;

ii) possesses a bachelor's degree from a recognized university; and

iii) be persons of ability, integrity and standing, and have adequate knowledge and experience

of at least 10 years in dealing with problems relating to economics, law, commerce, accountancy,

industry, public affairs or administration.

Provided that not more than 50% of the members shall be from amongst the persons having judicial

background.

Disqualifications of Members: A person shall be disqualified from appointment if he -

a) has been convicted and sentenced to imprisonment for an offence which involves moral

turpitude; or


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d) has been removed or dismissed from the service of the Government or a body corporate owned or


e) has, in the opinion of the Central Government, such financial or other interest as is likely to effect

prejudicially the discharge by him of his functions as a member; or

f) has such other disqualifications as may be prescribed by the Central Government provided that

every appointment under the clause shall be made by the Central Government on the

recommendation of a selection committee consisting of the following, namely :-

1) a person who is a jUdge of the Supreme Court, to be nominated by the Chief Justice of India

(Chairman)

2) the Secretary in the Department of Legal Affairs in the Government of India (Member)

3) Secretary of the Department dealing with consumer affairs in the Government of India

(Member).

Establishment of Benches [Section 20(I-A)]: The Amendment Act, 2002 permits the establishment of

the Benches of the National Commission.

1) The jurisdiction, powers and authority of the National Commission may be exercised by Benches

thereof.

2) A Bench may be constituted by the President with one or more members as the President may

deem fit.

Jurisdiction of the National Commission (Sec. 21): Jurisdiction of the National Commission shall be as

under.

1) It can entertain complaints where the value of the goods or services and compensation, if any,

claimed, exceed Rs. One crore;

2) It can entertain appeals against the orders of any State Commission; and

3) It can 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 jurisdiction not vested in it by law, or has failed to

exercise a jurisdiction so vested, or has acted in the exercise of his jurisdiction illegally or with

material irregularity. It maybe noted that now after the Amendment Act, 2002, the pecuniary

jurisdiction is only in respect of complaints where the amount in dispute exceeds Rs. One crore.

Earlier it was above Rs. 20 lakhs.

Power and Procedure Applicable to National Commission (Section 22)

1) The provisions of sections 12, 13 and 14 and the rules framed thereunder for the disposal of

complaints by the District Forum shall, with such modifications as may be considered necessary by

the Commission, be applicable to the disposal of disputes by the National Commission.

2) The National Commission shall have the power to review any order made by it when there is an

error apparent on the face of the record.

Power to Set Aside Ex Parte Orders (section 22-A) : When an order is passed by the National

Commission ex parte against the opposite party of a complaint, as the case may be, the aggrieved party

may apply to the commission to set aside the said order in the interest of justice.

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Transfer of Cases (Section 22-B)

On an application of the complainant or on its own motion, the National Commission may, at any stage of

the proceeding, in the interest of justice transfer any complaint pending before the District Forum of one

State to a District Forum of another State or before one State Commission, to another State Commission.

Circuit Benches (Section 22-C)

The National Commission shall ordinarily function at New Delhi and shall perform its functions at such other

place as the Central Government may, in consultation with the National Commission notify in the Official

Gazette from time to time.

Appeals from National Commission to the Supreme Court (Section 23) : An appeal against the orders of the

National Commission lie to the Supreme Court. Such an appeal can only be in respect of the powers

exercised by the National Commission under Section 21 (a)(i), Le. when the National Commission is

exercising original jurisdiction in respect of complaints where the value of the goods or services and

compensation, if any, claimed exceed rupees 1 crore.

An appeal to the Supreme Court can be made within a period of 30 days from the date of the order of the

National Commission. However, the Supreme Court may entertain an appeal after the expiry of the said

period of 30 days if it is satisfied that there is sufficient cause for not filing the appeal within the above-said

time.

Appellant to Deposit Part of Decreed Amount before Making Appeal: A new proviso to Section 23 has

been introduced by the C.P.A. (Amendment) Act. It states that no appeal by a person who is required to pay

any amount in terms of an order of the National Commission shall be entertained by the Supreme Court

unless the person has deposited in the prescribed manner 50% of that amount or Rs. 50,000/- whichever is

less.

Finality of Orders (Section 24)

Where no appeal has been filed against the order of the District Forum, State Commission or the National

Commission, the same shall be final.

Limitation Period for Filing a Complaint (Sec. 24A): Section 24A is a new provision, inserted by the

Consumer Protection (Amendment) Act 1993, w.e.f. 18-6-1993. It prescribes a period of limitation within

which a complaint can be filed. The provision is as under:

1) The District Forum, 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) A complaint may, however, be entertained after the period specified above in sub-section (1) if the

complainant satisfies the District Forum, 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 Forum, the State Commission or

the National Commission, as the case may be, records its reasons for condoning such delay.

In S. Kumar v. Managing Director, Air India, the complainant traveled from London to Delhi on 31-7-85. He

made a complaint after 4 years and 4 months on 15-11-89.

It was held that the Limitation Act was applicable in the case and the complaint was barred by limitation.

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It may be noted that Section 24A, Consumer Protection Act, providing for Limitation period of two years for

filing a complaint was inserted by an amendment in the Consumer Protection Act w.e.f. 18-6-93. The

provision is not retrospective.

Limitation in Case of a Continuing Wrong

- If the wrong is a continuing wrong, for example, the result of a candidate is stated "Result

Later" and it is not declared for 10 years, the candidate can still make a complaint in a consumer

forum.

Administrative Control (Section 24-8)

- Section 24B has been inserted by the Consumer Protection (Amendment) Act, 1993. It

envisages administrative control of National Commission over the State Commission and that

of the State Commission over the District Forum.

EXECUTION OF ORDERS of the District Forum, the State Commission or the National Commission

(Section 25)

Attachment and Sale of Property

1) Where an interim order made under this Act is not complied with, the concerned District Forum,

State Commission or the National Commission may order the property of the person, not complying

with the order, to be attached.

2) No attachment made as above shall remain in force for more than 3 months at the end of which, if

non-compliance continues, the property attached may be sold and out of the proceeds thereof, the

relevant consumer court may award such damages as it thinks fit to the complainant and shall pay

the balance, if any, to the party entitled thereto.

3) Where an amount is due under the order of the consumer court, it may issue certificate to the

Collector of the District to recover the same in the same manner as the arrears of land revenue.

Dismissal of Frivolous or Vexatious Complaints (Section 26)

- Where a complaint instituted before the District Forum, the State Commission, or as the

case may be, the National Commission, is found to be frivolous or vexatious, it shall, for a

reason to be recorded in writing, dismiss the complaint and make an order that the complaint

shall, pay to the opposite party such cost, not exceeding Rs. 10,000/- as may be specified in the

order.

- Prior to amendment of the Act in 1993, only dismissal of the frivolous or vexatious complaint

could be there. But to discourage such complaints, which unnecessarily increased the work-

load of the force, the Amendment Act has provided for the penalty upto Rs. 10,000/- on the

person making frivolous or vexatious complaint.

Penalties for Non-compliance of Order (Section 27): Any trader or a person against whom the

consumer court has made an order, fails or omits to comply with the order can be punished as follows:-

i. Imprisonment Minimum one month and maximum 3 years; or

ii. Fine, Minimum Rs. 2,000/- and maximum Rs. 10,000/- or both the above said punishments

may be awarded.

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Appeal Against Order Passed Under (Section 27 A): Earlier there was no provision of appeal against an

order awaiting punishment under Section 27. Section 27-A inserted by the C.P. (Amendment) Act 2002

provides for an appeal against such orders, as under:

Order of Appeal to

The District Forum The State Commission

The State Commission The National Commission

The National Commission The Supreme Court

Time Limit for Making Appeal

30 days from the date of an order.

The relevant appellant authority may entertain an appeal after the expiry of the period of 30 days, if it

is satisfied that the appellant had sufficient cause for not preferring an appeal within the period of 30

days.

- Judicial Review,

- Public Interest Litigation (PIL)

- Remedies

IMPORTANT QUESTIONS

Q.1. Define (i) National Commission.(ii) Defect (iii) Time limit for filing a consumer complaint.

Q.2. Whether personal services are governed by Consumer's Protection Act?

Q.3. Whether an advocate can file a complaint on behalf of his client in Consumer Act?

Q.4. Whether the District Forum can grant injunction?

Q.5. Whether Consumer Protection Act will be applicable to U.P. Avas Vikas Parishad?

SUGGESTED READINGS

1. Ramaswamy Iyer

2. RK Bangia

3. Pollock

4. Winfield

5. DD Basu

6. Avtar Singh : Law of Consumer Protection - Principles & Practice

7. P.K. Majumdar : Law of Consumer Protection in India

8. Leela Krishnan : Consumer Protection & Legal Control

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ASSIGNMENT - 1

NATURE OF TORTS Astha Sharma

Introduction: The word 'tort' has been derived from the Latin term 'tortum', which means 'to twist'. It

includes that conduct which is not straight or lawful. It is equivalent to the English term 'wrong'.

This branch of law consists of various 'torts' or wrongful acts, whereby the wrongdoer violates some legal

rights vested in another person.

Definitions

According to Salmond - "It is a civil wrong for which the remedy is a common law action for unliquidated

damages and which is not exclusivley the breach of a contract or the breach of a trust or other merely

equitable obligation."

According to Winfield - "Tortious Liability arises from the breach of a duty primarily fixed by the law: this duty

is towards persons generally and its breach is redressible by an action for Unliquidated damages."

According to Fraser - "It is an infringement of a right in rem of a private individual giving a right of

compensation at the suit of the injured party."

The basic idea which is indicated by these definitions is - Firstly, it is a civil wrong, and secondly, every civil

wrong is not a tort. There are other civil wrongs also, the important of which are a breach of contract and

breach of trust.

Tort usually refers to the causing of damage to property or to a person's reputation or harm to a person's

commercial interests.

Nature of Tort

The nature of tort can be understood by distinguishing:

1) Tort and Crime

The wrongs which are comparetively less serious are consideed to be private wrongs and have been

labelled as civil wrongs.

Whereas

More serious wrongs have been considered to be public wrongs and are known as crimes. In tort, the

injured party himself has to file a suit as a plaintiff.

Whereas

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In crime, immediate victim is an individual the criminal proceedings against the wrong doer are brought by

the state.

In tort, the ends of justice are met by awarding compensation to the injured party.

Whereas

In crime, wrong doer is punished.

Tort and Breach of Contract

A breach of contract results from the breach of a duty undertaken by the parties themselves. Whereas

A tort, results from the breach of such duties as are not undertaken by the parties themselves but are

imposed by law.

In contract, the duty is based on the privity of contract and each party owes duty only to the other contracting

party.

Whereas

In tort, duties imposed by law are not towards any specific individual or individuals but they are towards the

world at large.

In breach of contract, damages may be liquidated.

Whereas

In tort, damages are always unliquidated.

Tort and Breach of Trust

In the case of breach of trust by the trustee, the beneficiary can claim such compensation which depends

upon the loss that the trust party has suffered. The amount of damages are liquidated.

Whereas

Damages in a tort are unliquidated.

Tort and Quasi-Contract

law of Quasi-contract gives a right only with respect to money and, generally, it is a liquidated sum of money.

Essentials of a Tort

To constitute a tort, it is essential that the following two conditions are satisfied:

1) There must be some act or omission on the part of the defendant:

In order to make a person liable for a tort, he must have done some act which he was not expected to do, or,

he must have omitted to do something which he was supposed to do. Either a positive wrongful act or an

omission which is illegally made will make a person liable. For example A commits the act of tresspass or

publishes a statement defaming another person, or wrongfully detains another person.

It may be noted that the wrongful act or a wrongful omission must be one recognised by law. If there is a

mere moral or social wrong, there cannot be a liability for the same.

2) The act or omission should result in legal damage:

In order to be successful in an action for tort, the plaintiff has to prove that there has been a legal damage

caused to him. Unless there has been violation of a legal right, there can be no action under law of torts. If

there has been violation of a legal right, the same is actionable whether, as a consequence thereof, the

plaintiff has suffered any loss or not.

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To explain the above essential, we may discuss two maxims:

i) Injurid Sine Damno: This means violation of a legal right without causing any harms, loss or

damage to the plaintiff.

There are two kinds of torts:

Firstly, those torts which are actionable perse, actionable without the proof of any damage or loss.

Secondly, the torts which are actionable only on the proof of some damage caused by an act.

In such cases, there is no need to prove that as consequence of an act, the plaintiff has suffered any harm.

For a successful action, the only thing which has to be proved is that the plaintiff's legal right has been

violated Le., there is injuria.

Case

Ashby Vs. White is a leading case explaining the maxim injuria sine damno. In this case, the plaintiff

succeeded in his action, ever though the defendant's act did not cause any damage.

The plaintiff was a qualified voter but the defendant, returning officer, wrongfully refused to take his vote, but

no loss was suffered.

It was held that "if the plaintiff has a right, he must of necessity have a means to indicate and maintain it, and

a remedy, if he is injured in the exercise of 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."

Damnum Sine Injuria

It means damage which is not coupled with an unauthorised interference with the plaintiffs lawful right.

Causing of damage, however substantial, to another person is not actionable in law unless there is also


Gloucester, Grammar School Case

Explains the point, there the defendant, a school master, set up a rival school to that of the plaintiff's.

Because of the competition the plaintiff had to reduce their fees from 40 pence to 12 pence. It was held that

the plaintiffs had no remedy for the loss thus suffered by them.

Ubi Jus Tbi Remedium

It is a Latin maxim meaning where there is a right there is a remedy. The principle that where one's right is

invaded or destroyed, the law gives a remedy to protect it or damages for its loss. Further, where one's right

is denied the law affords the remedy of an action for the enforcement. This right to a remedy therefore

includes more than is usually meant in English law by the term. "remedy" as it includes a right of action.

Wherever, therefore, a right exists, there is also a remedy.

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ASSIGNMENT- 2

DEFAMATIONShipra Tripathi

Defamation is injury to the reputation of a person.

Every man has a right to have his reputation. It is acknowledged as an inherent personal right of every

person.

A man's reputation is his property more valuable than any the other property. But the law of defamation like

many other branches of the law of tort provides for balancing of interests.

Definition of Defamation

According to Dr. Winfield

"Defamation is a publication of a statement which tends to lower a person in the estimation of rights.

Defamation is civil wrong and criminal offence. So I.P.C Section - 499 defines defamation: Whoever, by

words either spoken, written to be read, or by signs or by visible representation, makes or publishes any

imputation concerning any person intending to harm, or knowing or having reason to believe that such

imputation will harm the reputation of such person, is said, except in the cases herein after excepted, to

defame that person.

According to our Constitution

Article 19 (1) says, Every person has a freedom of speech and expression.

The wrong (tort) of defamation protects reputation and defences to the wrong (tort) truth and privilege

protect the freedom of speech.

The existing law relating to defamation is a reasonable restriction on the fundamental right of freedom of

speech and expression conferred by art 19 (1) (a) of Indian constitution.

Types of Defamation

Two Types of Defamation are

1) Libel

2) Slander

1) Libel:

Libel is representation made in some permanent form and visible form such as:

Writing, printing, picture, effigies or even by means of a cinema film or gramophone record.

So libel is a publication of a false and defamatory statement in some permanent form tending to injure the

reputation of another person without lawful justification or excuse.

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Note: In action for libel the statement complained of must be false, permanent in nature and published.

In a cinema film, not only the photographic part of it is considered to be libel but also the speech which

synchronizes with it is also a libel.

2) Slander

Slander is the publication of a defamatory statement in a transient form.

A slander is a false and defamatory, verbal or oral statement in transitory forums intending to injure the

reputation of another without lawful jurisdiction or excuse.

In slander, therefore, the defamatory statement is made in spoken words, or in some other transitory form,

whether visible such as gestures or inarticulate but significant sound.

The representation must be expressed either by speech or its equivalents, for ex. : A nod, wink, shake of the

head, smile, hissing.

An extemporaneous speech by wireless is slander. Difference between Libel and Slander :

Some important difference are as follows :

1) Libel is written defamation, when slander is spoken or oral defamation. Libel is addressed to the

eye, while slander is addressed to the ear. In libel the defamatory matter is in some permanent form,

such as, statue, effigy, caricature and the like whereas slander is defamation in transient form,

whether audible as in spken words, or visible as in the case of significant gestures.

2) Libel is both a civil wrong and criminal offence. Slander is a civil wrong only. In India slander is both a

tort and a crime.

3) Under the law of torts slander is actionable, save in exceptional cases, on proof of special damage.

Libel is always actionable per se without the proof of any damage.

4) Under criminal law only libel has been recognised as an offence, slander is no offence.


5) The statement must be defamatory,

6) The said statement must refer to the plaintiff,

7) The statement must be published.

8) The statement must be defamatory :

1) The statement must be defamatory :

The statement may be divided into two categories –

- Natural

- Ordinary

The statement is defamatory, if in its natural and ordinary sense, it tends.

a) To excite adverse opinion or feeling of other persons against the plaintiff.

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b) To hold up to public hatred, contempt, ridicule, disesteem or obloque.

c) To prejudice his private character or credit.

d) To injure him in his profession, business or trade.

e) To degrade him in the estimation of the people.

In Noor Mohd vs. Jiauddin: [A.LR. 1992 MP.244]

The court held that bridegroom and his father were responsible for defamation. In the case they both

refused to take the bride after marriage with them before a number of guests. The act was considered as

defamation.

2) The statement must refer to the plaintiff: In every action of defamation the plaintiff must prove

that the statement refers to him.

·Sredharmurthy vs. Bellary Municipal Council:

The plaintiff was a practicing advocate and also income-tax and wealth tax payer. The municipal council out

of ill - will and malice served notice of restraint warrant and seized plaintiff's furniture and books. It was held

that in such a case substantial damage should be awarded even through no evidence regarding damage

was adduced:

3) The statement must be published: 'Publicatior:' means making known the matter to some person

other than the plaintiff. If a person writes a defamatory matter on the plaintiff and puts it into his own pocket

or locks it in his drawer, he is not responsible in an action because there has been no publication. Therefore,

there must be communication by the speaker on the writer (publication) to third person or if a third person


The following principles however govern the rule of publication of a defamatory statement.

a) The publication must be to a third person that is to any person other than the defamer and the

defamed.

Arumuga Mudaliar vs Annamalai Mudaliar: 1966:

Two persons jointly wrote a letter containing defamatory matter about the plaintiff and sent the same

to the plaintiff by registered post.

The court held that there was no publication by one tort feasor to the other as there could be no

publication between joint tort-feasor. It would not amount to publication even in that case where the

registered letter addressed to the plaintiff goes in the hand of a third person who reads it out in an

unauthorized manner.

b) A publication is not sufficient unless it is made to a person who understood the defamatory

significance of the statement, who also understood that it referred to the plaintiff.

c) Publication is presumed in certain cases.

d) Unintentional publication.

Defamation of a Dead Person in Tort

It is not a tort to defame a deceased person. Deceased person means a person who is dead. The Andhra

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Pradesh high court in the matter of All India Anna Dravida Munnetra Karhagam.

Madras vs. K. Govindan Kutty: It was held that to defame a dead person is not a tort and the maxim

'Action personals moritum cum persona'.

Means: A personal right of action dies with the person.

This maxim properly relates only to extinction of liability, although it has sometimes been misused in.

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UNIT - I

DEFINITION

Origin of Word 'Tort': The word tort has been derived from a Latin term "tortum" which means "to twist". It,

therefore, includes that conduct which is not straight or lawful but, on the other hand, twisted, crooked or

unlawful.

It is equivalent to the English term 'wrong'.

Definition of 'Tort': Tort is a wrongful act which results from the breach of a duty recognized by the law of

torts, e.g., violation of a duty not to injure the reputation of someone results in the tort of defamation,

violation of a duty not to interfere with the possession of land of another person results in the tort of trespass

to land.

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. Thus from the above

definition following essentials emerge:

- Breach of duty

- Unliquidated damages

- Duty towards common people

Winfiled- The Basic principle of tortuous liability is that the duty from the very first must be fixed by the~ law

itself and not by the agreement of parties. For example, I am under a legal duty not to trespass on your land.

Now, this duty has been primarily fix by law on me and has not been created between you and me through

an agreement.

In this definition the emphasis is laid upon "generally". If the duty is towards specific person persons, it

cannot arise from tort. In other words, the duty in tort in always general. For example, I am under a legal duty

not to commit assault or any other tort against anyone who can sue me in a court. This element of generality

is, Therefore, an important factor.

In tort the damages remains uncertain or unliquidated until the case is finally decided by the count. Where

the plaintiff in an action sues for a pre-determined and in elastic sum of money, he is said to have claimed

liquidated damages. But where he sues for an amount as the court, in its discretion, is at liberty to award, he

is claiming unliquidated damages. But where he sues for an amount as the court, in its discretion, is at

liberty to award, he is claiming unliquidated damages and this is so even where he has mentioned a

particular sum of money in his pleadings.

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Salmond: Tort may be defined as a civil wrong which is redressible by an action for unliquidated damages

and which is other than a mere breach of contract or breach of trust. Thus it may be observed that:

1. Tort is a Civil Wrong: Tort belongs to the category of civil wrongs. The basic nature of civil wrong is

different from criminal wrong. In the case of a civil wrong the injured party i.e. the plaintiff institutes

civil proceedings against the wrong doer, the defendant. In such a case the main remedy is

damages. The plaintiff is compensated by the defendant for the injury caused to him by the

defendant.

In the case of criminal wrong, on the other hand, the criminal proceedings against the accused are

brought by the State. Moreover, justice is administered by punishing the wrong doer in such a case

and not by compensating the victim.

2. Tort is other than mere breach of Contract or Breach of Trust: Tort is that civil wrong which is not

exclusively any other kind of civil wrong.

It is only by the process of elimination that we may be able to know whether the wrong is tort or not.

First, we have to see whether the wrong is civil or criminal. If it is a civil wrong, it has to be further

seen that if it exclusively belongs to another recognized category of civil wrong like breach of

contract or breach of trust. If it is found that it is neither a mere breach of contract nor any other civil

wrong then we can say that the wrong is tort.

3. Tort is Repressible by an Action for Unliquidated Damages: Damages are the most important

remedy for a tort. After the commission of the wrong it is generally not possible to undo the harm

which has already been caused and generally it is the money compensation or damages which may

satisfy the injured party.

There are other remedies which could be available when the tort is committed and the other

remedies may be more effective than the remedy by way of damages, for example, when a

continuing wrong like nuisance is being committed, the plaintiff may be more interested in the

remedy by way of injunction to stop the continuance of nuisance than claiming compensation from

time to time if the nuisances is allowed to be continued.

Damages in the case of a tort are unliquidated. It is the fact which enables us to distinguish tort from

other civil wrong like breach of contract or breach of trust where the damages may be liquidated.

Liquidated damages means such compensation, which has been previously determined or agreed

by the parties.

When the compensation has not been so determined but the determination of the same is left to the

discretion of the court, the damages are said to be unliquidated.

THE NATURE OF THE TORT CAN BE UNDERSTOOD BY DISTINGUISHING

1. TORT AND CRIME : The wrongs which are less serious are considered to be private wrong and

have been labeled as civil wrongs whereas more serious wrongs have been considered to be public

wrongs and are known as crimes.

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- According to Blackstone: Wrongs are divisible into two sorts or species-private wrongs and

public wrongs. The former are the infringement or privation of private or civil right belonging to

individuals and latter are breach or violation of public rights or duties, which affect the whole

community.

- Since tort is considered to be a private wrong the injured party himself has to file a suit as a

plaintiff. If at any stage the injured party likes, he may agree to a compromise with the tort feasor

and withdraw the suit.

- In the case of crime, on the other hand, even though the immediate victim is an individual the

criminal wrong is considered be to a public wrong and criminal proceedings are, therefore,

brought by the state and not by the injured party. Moreover, in certain exceptional cases of more

serious nature law does not permit a settlement in the criminal case between the wrong doer

and aggrieved party.

- In the case of tort, the ends of justice are met by awarding compensation to the injured party.

In the case of crime the wrong doer is punished. The idea of awarding compensation to the

injured party under civil law is to make good the loss suffered by him. The punishment under the

criminal law protects the society by preventing the offender from committing further offences

and deterring him and other potential offenders from committing further offences.

- Sometimes, the same set of facts may constitute both a tort and a crime. The civil and

criminal remedies in such a case are not alternative but they are concurrent. The wrong doer

may be required to pay compensation under the law of torts and he may also be liable under

criminal law. For example, if A digs a ditch on road resulting in inconvenience to public at large A

has committed the offence of public nuisance under section 268 IPC. If X a passer-by falls into

that ditch and thereby gets injured A's act also becomes a tort of private nuisance as against X. A

will also be punished under criminal law for the offence of public nuisance as well as he will be

liable to compensate X under torts.

2. TORT AND BREACH OF CONTRACT: A breach of contract results from the breach of a duty

undertaken by the parties themselves. A tort, on the other hand, results from the breach of such duties

which are not undertaken by the parties themselves but which are imposed by law, e.g., I have a duty

not to assault or defame anyone or to commit nuisance or trespass over another person's land not

because I have voluntarily undertaken anyone of these duties but because the law imposes such duties

on me or rather on every member of the society. The breach of these duties is a tort.

- In a contract, the duty is based on the privity of contract and each party owes only to the

other contracting party. If A and B make a contract I\s duty is towards Band B only.

- Duties imposed by law under the law of torts are not towards any specific individual or

individuals but they are towards the world at large. However, even in a tort only that person will

be entitled to sue who suffers damage by the breach of the duty who has a locus standia's duty

not to defame is not towards X or Z only and whosoever is defamed by A will be entitled to bring

an action against him for the tort of defamation. The case of Donoghue V Stevenson shows that

the manufacturer of drinks owes a duty of care to every possible consumer of his product.

- Damages are the main remedy in an action for a breach of contract as well as in action for

tort. In a breach of contract the damages may be liquidated where as in an action for tort they are

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always unliquidated.

Is it Law of Tort or Law of Torts?: The question is;

1. If in the law of tort every wrongful act for which there is no justification or excuse to be treated as a

tort.

2. Is the 'law of torts' consisting only of a number of specific wrongs beyond which liabilities under this

branch of law cannot arise?

Winfield preferred the first of these alternatives and according to him it is the law of tort. According to this

theory, if I injure my neighbour he can sue in tort whether the wrong happens to have particular name like

assault battery, deceit, slander or whether it has no special title at all, and I shall be liable if I cannot prove

lawful justification.

Salmond, on the other hand, preferred the second alternative and for him it is law of torts. The liability under

this branch of law arises only when the wrong is covered by anyone or the other nominated torts. There is no

general principle of liability and if the plaintiff can place his wrong in anyone of the pigeonholes, each

containing a labeled tort he will succeed. This theory is also known as 'Pigeonhole theory'. If there is no

pigeonhole in which the plaintiff case could fit in, the defendant has committed no tort.

ESSENTIALS OF TORT

To constitute a tort it is essential that the following two conditions are satisfied:

1. There must be some act or omission on the part of the defendant, and

2. The act or omission should result in legal damage.

1. Act of Omission: In order to make a person liable for a tort he must have done some act which he

was not expected to do or he must have omitted to do something which he was supposed to do. Either a

positive wrongful act or an omission which is illegally made will make a person liable.

- For example, A commits the act of trespass or publishes a statement defaming another

person or wrongfully detains another person; he can be made liable for trespass, defamation or

false imprisonment.

- Similarly, when there is a legal duty to do some act and a person fails to perform that duty he

can be made liable for such omission. For ex., If a corporation which maintains a public park fails

to put proper fencing to keep the children away from a poisonous tree and a child plucks and

eats the fruit of the poisonous tree and dies, the corporation would be liable for such omission.

- Wrongful act or a wrongful omission must be one recognized by law. If there is a mere moral

or social wrong there cannot be a liability for the same. For ex., If somebody fails to help a

starving man or save the drowning child it is only a moral wrong and therefore no liability can

arise for that.

2. Legal Damage

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·In order to be successful in an action for tort the plaintiff has to prove that there has been a legal

damage caused to him. In other words, it has got to be proved that there was a wrongful act or

omission, causing breach of a legal duty or the violation of a legal right vested in the plaintiff.

·If there has been violation of a legal right, the same is actionable whether as a consequence thereof

the plaintiff has suffered any loss or not. This is expressed by the maxim injuria sine damno. Injuria

means infringement of a right conferred by law on the plaintiff or an unauthorized interference,

howsoever trivial, with the plaintiffs right. Damnum means substantial harm, loss or damage in

respect of money, comfort, health or the like, whereas when there is no violation of legal right no

action can lie in a court of law even though the defendant's act has caused some loss or harm or

damage to the plaintiff. This is expressed by the maxim 'Damanum Sine injuria:

Firstly, those torts which are actionable per - se Le. actionable without the proof of any damage or loss. For

ex., Trespass to land.

Secondly, the torts, which are actionable on the proof of some damage caused by an act.

Injuria sine damno covers the first of the above stated cases. For a successful action, the only thing which

has to a proved is that the plaintiff's legal right has been violated.

Ashby V White is a leading case examining the maxim injuria sine damno. In this case the plaintiff

succeeded in his action even though the defendant's act did not cause any damage. The plaintiff was a

qualified voter at a parliamentary election but the defendant, a returning officer wrongfully refused to take

plaintiff's vote. No loss was suffered by such refusal because the candidate, for whom he wanted to vote,

won the election. In spite of that it was held that the defendant was held liable.

DAMNUM SINE INJURIA

It means damage, which is not coupled with an unauthorized interference with the plaintiff's lawful right.

Causing of damage, however substantial to another person is not actionable in law unless there is also


Gloucester Grammar School case explains the point. There the defendant, a schoolmaster set up a rival

school to that of the plaintiff's. Because of the competition the plaintiff had to reduce their fees from 40

pence to 12 pence per scholar per quarter. It was held that the plaintiff had no remedy for the loss thus

suffered by them.

- A legal act although motivated by malice will not make the defendant liable. The plaintiff can

get compensation only if he proves to have suffered legal injury because of an illegal act of the

defendant and not otherwise.

Mental Element in Tortious Liability: Mental element is an essential element in most of the forms of

crime. However, such a generalization cannot be made about liability in tort. The position under the law of

torts is as follows:

Fault when Relevant: In many of the branches of law of torts like assault, battery, false imprisonment,

deceit, malicious prosecution and conspiracy the state of mind of a person is relevant to ascertain his

liability. It has to be seen whether a particular wrongful act was done intentionally or maliciously.