48926065 8 Legal Remedies

Law of Torts and Consumer Protection Act

Legal Remedies

08/04/23 C J Rawandale, Associate Professor

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Introduction

• In the law of torts remedies which can be availed by the injured person can be divided as:

• 1. Judicial Remedies and

• 2. Extra-judicial remedies.


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• Judicial Remedies i.e. remedies by way of action at law.

• These are mainly of three kinds:

• Damages,

• Injunction and

• Specific restitution of property.


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• Extra-judicial remedies i.e. remedies availed by party himself without the aids of law.

• These are:

• Expulsion of trespasser,

• Re-entry on land,

• Reception of goods,

• Distress of damage feasant, and

• Abatement of nuisance.


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Judicial Remedies

• Tort is a civil wrong for which the remedy is by way of an action for damages.

• Damages represent the pecuniary recompense recoverable by process of law, by a person who has sustained an injury through the wrongful act or omission of another.

• The object of awarding damages is to place the injured party in the position which he would have occupied; if the wrong had not been committed.


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A. Damages

• General and Special damages

• Damages which law presumes to be the natural consequences of the defendant’s acts are general damages whereas damages the law will not infer unless proved at the trial are special damages.

• e.g. medical expenses incurred by plaintiff due to defendant’s negligent driving will give general damages, whereas if he claims nervous shock, then he has to prove and will get special damages.


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Measure of damages

• 1. The leading principle in considering the measure of damages is “restitutio in integrum”.

• In Livingstone v. Rawyords Coad Co.,(1880) 5 App. Cas. 25 the court explained its meaning in the following words means:

• “Where any injury is to be compensated by damages in settling the sum of money to be given for reparation of damages you should as nearly as possible get that sum of money which will put the party who has been injured, or who has suffered in the same position as he would have been in, if he had not sustained the wrong for which he is now getting his compensation or reparation”.


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• Swaraj Motors Private Ltd. v. R.T. Raman Pillai, AIR 1968 Ker. 315

• The Kerala High Court held that in case of personal injury arising from accident, the plaintiff is entitled to expenses which he actually and reasonably incurred for the medical treatment and incidental matters upto the date of institution of the suit. He can recover as special damages under this head only the amount so determined. He is entitled to claim loss of professional income.


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• Shafiq v. Pramod Bhatia, AIR 1998 MP 142

• The Madhya Pradesh High Court awarded Rs. 84, 000 as compensation to the plaintiff wherein an accident caused 50% permanent disability and shortened the leg by one inch. The claimant was not able to carry on his business of sale of cloth by taking round from place to place. The principle in this regards is that damages are intended to put the plaintiff in the same position as he would have been if he had not received the injury.


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2. Remoteness of damage

• The next principle is the remoteness of damages.

• It is based on the maxim ‘injure on remota causa sed proxima spectatur’.

• It prevents the plaintiff from recovering any damages that do not flow or arise as a direct consequence of the wrongful act complained of.


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3. Mitigation of damages

• It means that in all claims for damages whether arising from contract or tort, a duty is cast upon the plaintiff to mitigate or minimise the damages to take all reasonable precautions to reduce the amount of loss or damage arising from the wrongful act of the defendant.

• Any loss or damage with which the exercise of reasonable care the plaintiff could have avoided, will be deemed too remote to be recoverable.


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Type of Damages

• Damages are of the following five kinds:

• Nominal damages;

• Contemptuous damages;

• Real or Substantial damages;

• Exemplary damages;

• Prospective damages.


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1. Nominal Damages

• Damages which are awarded by the Court to the plaintiff not by way of compensation but by way of recognition of some legal rights of plaintiff which the defendant has infringed are nominal damages.

• Nominal damages are available for torts which are actionable per se.


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• Ashby v. White, (1703) 2 Ld. Ry. 938

• In this case a rightful voter’s right to vote was wrongfully and maliciously denied at an election. However the candidate in whose favour he wanted to cast his vote won the elections. He was awarded damages nominal in nature.


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• Constantine v. Imperial London Hotels Ltd. (1944) 1 KB 693

• The owner of a hotel wrongfully refused a West Indian Cricketer entry in their hotel. Although he suffered no loss, the wrongful exclusion was held to be tortuous, was given nominal damages.


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2. Contemptuous damages

• Contemptuous damages are an indication of the law court expressing an opinion of the claim of the plaintiff or its disapproval of is conduct in the matter. They differ from nominal damages as they may be awarded for any tortuous act whether actionable per se or not.


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3. Real or Substantial damages

• Damages which are assessed and awarded as compensation for damage actually suffered by the plaintiff, and not simply by way of mere recognition of a legal right violated are called real or substantial damages.

• Real or substantial damages are also called as compensatory damages.


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4. Exemplary damages

• Exemplary damages are awarded where there has been great injury by reason of aggravating circumstances accompanying the wrong.

• Exemplary damages are awarded not by way of compensation for the plaintiff, but by way of punishment for the defendant.


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• In Rookes v Barnard, 1961 AC 1129, the Court laid down that exemplary or punitive damages can be awarded in three cases:

• 1. Oppressive, arbitrary or unconstitutional action by servants of the Government

• Bhim Singh v. State of J & K, AIR 1986 SC 494

• Bhim Singh, MLA of J & K was arrested when he was going to attend Assembly session. The Supreme Court considered it to be appropriate case to award exemplary damages.


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• 2. Cases 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

• Manson v. Associated News Papers Ltd. (1965) 1 All ER 954

• The court held that “if a person who is possessed of material which would be defamatory if published, and who does to really believe it to be true at all, decides to publish it simply because he can make a profit from publishing it and because he reckons that any damages he might have to pay would be so small that it would be well worth it, then that is a man, and that is the only man, against whom an award of exemplary damages can be made.”


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• 3. Where exemplary damages are expressly authorised by the statute.


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5. Prospective damages

• Damages which are likely to result from the wrongful act of the defendant but they have not actually resulted at the time when the damages are being decided by the Court.


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• Subhas Chandra v. Ram Singh, AIR 1972 Delhi 189

• Appellant was hit by a bus driver. He suffered several injuries resulting in his permanent disability to walk without a surgical shoe. Because of the disability he could not take employment in certain avenues. The Motor Claims Tribunal awarded him compensation amounting to Rs. 3,000 under the heading ‘probable further loss’. The amount of compensation on appeal was increased to Rs. 7000 by the Delhi High Court.


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B. Injunctions

• An injunction is an order of the court directing the doing of some act or restraining the commission or continuance of some act.

• The injunctions are of various kinds:

• Temporary and Perpetual Injunction

• Prohibitory and Mandatory Injunction


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a. Temporary and perpetual Injunction

• Section 37, Specific Relief Act, 1963 defines temporary and perpetual injunction as follows:

• “A temporary injunction is such as is to continue until a specified time, or until the further order of the court.

• A perpetual injunction is one by which the defendant is perpetually enjoined form the assertion of a right, or from the commission of an act, which could be contrary to the right of the plaintiff.”


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• Temporary Injunction

• It is also called as ‘interlocutory injunction’. It does not mean determination in favour of the plaintiff but simply shows the concern of the Court that there is a substantial question requiring consideration.

• E.g. A and B have a dispute regarding title over a plot of land, which is in A’s possession. B also claims to have the title of the same plot. Case is pending before the court; A begins with construction on the said spot. B goes to court and Court orders temporary injunction..


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• The intention is that the property should continue to remain in its existing condition rather than being destroyed or wrongfully disposed of before the final decisions


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• Perpetual Injunction

• If the court after going into the matter, finds that the plaintiff is entitled to the relief, the temporary injunction will be replaced by a perpetual injunction. A perpetual injunction is a final order and is issued after the full consideration of the case.


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b. Prohibitory and Mandatory Injunction

• Prohibitory injunction is self explanatory. It means an injunction which prohibits the defendants from doing some act which will interfere with the plaintiff’s lawful rights.

• e.g. continuing acts of trespass, nuisance.


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• Mandatory injunction is an order which requires the defendant to do some positive act.

• e.g. pulling down a wall which causes obstruction to the plaintiff’s right of light.


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C. Specific Restitution of Property

• When one is wrongfully dispossessed of his movable or immovable property, the court may order that the specific property should be restored back to the plaintiff.

• e.g. action for ejectment, the recovery of chattels by an action for detinue etc.


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• As per section 6 of the Specific Relief Act, 1963 a person who is wrongfully dispossessed of immovable property is entitled to recover the immovable property.


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• As per section 7 of the Specific Relief Act, 1963 a person who is wrongfully dispossessed of movable property is entitled to recover the movable property.


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Remedies under the Constitution

• Articles 32 and 226 of the Constitution respectively confer jurisdiction on the Supreme Court and the High Courts for the enforcement of fundamental rights. The High Courts have in addition jurisdiction to enforce other legal rights.


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• M.C. Mehta v. Union of India, (1987) 1 SCC 395

The Supreme Court held that the power conferred by these provisions is not merely injunctive i.e. preventive but also remedial and includes a power to award compensation, interim or final, in appropriate cases.

It further held that “ordinarily, these provisions are not to be used as a substitute for a suit for compensation but their recourse can be taken in exceptional cases.

• E.g. Rudal Shah v. State of Bihar, ARI 1983 SC 1036; Bhim Singh v. State of J & K, (1985) 4 SCC 677


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• Further, the Supreme Court has enlarged the doctrine of locus standing by laying down that where legal injury is caused or legal wrong is done to a person or class of persons, who by reason of poverty or disability or socially or economically disadvantaged position cannot approach a court of law for justice, any member of the public or social action group acting bona fide can file a petition under Article 32 or 226 seeking judicial redress and this can be done even by addressing a letter to the court.

• [See, Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161; S.P. Gupta v. Union of India, (1984) 3 SCC 161; Peoples Union for Democratic Rights v. Union of India, (1982) 3 SCC 235]


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Extra-Judicial Remedies

• Following extra-judicial remedies can be availed by the plaintiff.

• Expulsion of trespasser;

• Re-entry on land;

• Reception of Goods;

• Abatement of Nuisance;

• Distress Damage Feasant


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1. Expulsion of Trespasser

• A person can resort to legitimate force in order to repel an intruder or trespasser provided the force used by him does not transgress the reasonable limits of the occasion i.e. he mustn’t use disproportionate force.


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• Scott v. Mathew Brown & Co. (1885) 51 LT 746

• The rightful owner of property of is entitled to use force in ejecting a trespasser so long as he does him no personal injury.

• Edwick v. Hwkes, (1881) 18 Ch D 199

• While ejecting a trespasser, the rightful owner of property should not resort to violence.


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2. Re-entry on land

• A man wrongfully disposed of his land may retake its possession, if he can do so in a peaceful manner and without the use of force.

• Hemmings v. Stoke Poges Golf Club, (1920) 1 KB 720

• If an owner of landed property finds a trespasser on his premises, he may enter the premises and turn the trespasser out, using no more force than is necessary to expel him, without having to pay damages for the force used.


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• Section 6 of the Specific Relief Act, 1963 and the Bombay Mamlatdars’ Courts Act, 1906 (in the states of Maharashtra and Gujarat), if one in possession of immovable property is disposed, otherwise than by due course of law, he may, within six months, sue to recover possession without reference to any title set up by another, which is left to be determined in a separate action.


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3. Reception of Goods

• A person entitled to the immediate possession of chattels may recover them from any person who has then been in actual possession and detain them, provided that such possession was wrongful in its inception.


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4. Abatement of nuisance

• Abatement means removal of the nuisance by the party injured.

• It is justifiable provided it must be peaceable, without danger to life or limb and after notice to remove the same, if it is necessary to enter another’s land to abate a nuisance, or where the nuisance is a dwelling house in actual occupation or a common, unless it is unsafe to wait.


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• Lemmon v. Webb, (1895) AC 1: Putraya v. Krishna Gota, (1934) 40 MLW 639

• The occupier of land may cut off the overhanging branches of his neighbour’s trees, or sever roots which have spread from these trees into his own land.


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• Someshwar v. Chunilal, (1919) 22 Bom LR 790

• One cannot cut the branches if the trees stand on the land of both parties.


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• Raghuwath Patnaik v. Dullabha Behera, ILR 1951 Cut 522

• Where the roots of trees originally planted by defendants in their own land had penetrated into plaintiff’s land wherefrom fresh trees had sprung up and the defendants cut and removed such trees from plaintiff’s land, it was held that where the roots of a tress extended into the lands of both owners and the tree derived its nourishment from soils of both, it became the common property of both though it might actually stand on the land of one of them and consequently the plaintiff was entitled to half of the value of the trees cut and removed by the defendants.


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5. Distress Damage Feasant

• ‘Distress’ means a right to retain.

• ‘Feasant’ means an object which has done a wrong.

• ‘Damages’ means the loss caused to the owner or the occupier.


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• Distress damage feasant is a remedy by which, if cattle or other things be on a man’s land encumbering it or otherwise doing damage there, he may summarily seize them, without legal process, and retain them impounded as a pledge for the redress of the injury he has sustained.


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• e.g. where the owner or occupier of the land finds any cattle or any other cattles trespassing on his property and unlawful on his land and causing damage, he has right to seize and detain it and refuse release of it unless owner pays compensation for the damages suffered by him.


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• England

• Section 7 of the Animals Act, 1971 has abolished the remedy of distress damage feasant which substitutes a right to seize, detain and sell livestock which has strayed on to one’s land and which is not then in the control of any other person.


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• India

• In India the right of distress damage feasant would be held to exist, except under express law. Cattle Trespass Act, 1871 contains special provisions regarding the impounding of cattle taken trespassing and doing damage.


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• A person on whose land cattle trespass and do damage is authorised to take them to a cattle pound within 24 hours of the seizure.

• He doesn’t have the right of further detention or sale.

• On payment of the pound fees to the pound keeper, the owner of the cattle can get his cattle released. The injured party doesn’t get any part of such pound fee.

• Thus the said legislation has impliedly taken away the right of distress damage feasant.


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Thank You!

48926065 8 Legal Remedies

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