Discuss “No Fault Liability” under Motor Vehicle Act, 1988.

Introduction
Due to industrialization and urbanization, with cities turning into metropolitans
and commercial powerhouses, the growth of the automobile sector has also been
exponential over time. It has now become a common feat that every urban
household has at least one car which they use as their family car. Being such a
huge market, there are a lot of problems which this industry poses to the public
as well as the environment in general.

Rules were necessary to ensure the safety of drivers on the public roads as well
as that of the vehicles to ensure that the environment was not getting polluted
due to their engine exhausts and other dangerous gases emitted by them. This
article aims at discussing the various important cases of the Motor Vehicles Act,
1988 (MVA). In addition to clarifying such concepts, as will be evident from the
following judgments, the courts have attempted to modify such concepts as well
to best suit the varying circumstances of each case. Two unique aspects of this
Act are with regard to the principle of no-fault liability and insurance of motor
vehicles against third party claims which will be elaborated upon further in this
article.

The principle of no-fault liability

Section 140 of the Motor Vehicles Act, 1988 deals with the principle of ‘no-fault
liability’. According to this principle, the owners of motor vehicles are liable to
pay for the compensation of the victims of accidents caused by them. The
criteria through which a person can claim no-fault liability is where the death or
permanent disablement of a person arises due to the use of a motor vehicle,
thus rendering the owner to be jointly as well as severally liable to pay
compensation for the same. The fixed amount to be paid in the case of death is
Rs. 50,000 and in the case of permanent disablement (that includes permanent
privation of eyesight, hearing or the joints or permanent disfigurement of the
head or face as well as permanent destruction or impairment to the powers of
any member or their joints), a sum of Rs. 25,000.

Another feature of the principle of no-fault liability is that the claimant is not
required to establish that the death or permanent disablement was due to any
wrongful act/neglect/default of the owner. The same claim cannot be defeated
nor can compensation for the same be reduced on the basis of the share of the
claimant in his/her responsibility in causing the death/ permanent disablement
of the victim.

It is important to note that a person who is charged under Section 140 of the
MVA is also liable to pay compensation under any other law. The amount paid
under Section 140 of the MVA will also be reduced from the compensation
granted under Section 163A if such a situation arises. The main purpose of
Section 140 is to provide aid in cases of emergencies and as such the claims
under this section are to be disposed of first even if a claim is made under
Section 163A and the individual is later required to pay the difference in the
sums (if the first amount is more then the second amount need not be paid).

Cases

The Oriental Insurance Co. Ltd v. Hansrajbhai V. Kodala & Ors (2001)

In this case, the question was with regard to whether a claim for compensation
under Section 163A on the structured formula basis would be in addition to or an
alternative measure to a claim for compensation under Section 140 of the MVA.

The Court held that the compensation granted under Section 163A is a final
measure and not an interim one. As such, the adjustment of compensation paid
under Section 140 is awarded under the fault liability principle that is payable
under Section 168 of the MVA and not under Section 163A.

Thus, Section 163A excludes the payment of compensation on the basis of the
fault and the addition to claim compensation under Section 163A is in addition to
Section 140 was rejected by the Court.

National Insurance Co.Ltd v. Sinitha & Ors (2011)

In this case, the question posed to the Court was with respect to whether a
claim under Section 163A of the MVA fell under the principle of fault or no-fault
liability.

The rationale that helped the Court arrive at its decision, in this case, was the
fact that since it was open to the concerned party to defeat any claim under
Section 163A on the grounds of wrongful act/neglect/default unlike a claim
under Section 140. Although Section 140(3) is similar to the provision under
163A which states that the aggrieved party need not establish the wrongful
act/neglect/default of the opposite party, a provision similar to Section 140(4) is
absent. This gives the opposite party a chance to defeat the claim. From this
rationale, it is evident that the burden of proof rests on the defence and as such,
it is founded on the fault principle.

Further, the titles of both the sections themselves clearly state their intention
i.e. ‘No fault’ as compared to ‘Third-party risks’. The Court held that although
the structured formula basis was a shortcut to provide a quick remedy, it can
still lead to a substantial claim and thus cannot be banned from any defense as
in the no-fault principle. The overriding effect of Section 163A would still prevail
as the same cannot be diluted.
Insurance against third party risks
The insurance against third party risks refers to the safety net granted to third
parties who are any individuals other than the insurer and the holder of the
insurance policy. The third-party has been given an inclusive definition to cover
all possible individuals including the Government. The onus of payment rests on
the insurer who is responsible to cover all liabilities that may arise in the case of
death or bodily injury caused to any person, property or third party arising out
of the use of the vehicle covered by the insurance policy in a public place.

It also includes the liability in the case of death or bodily injury to any passenger
of a public service vehicle, damage of third party property and death/bodily
injury of the third party even if it occurs in a place other than the place of use of
the vehicle due to an act of omission. There are certain limitations to the liability
of the insurer which are enumerated under Section 147 of the Act.

Cases for third party risks

United India Insurance Co. Ltd. v. Karam Chand & Ors. (2011)

In this case, the Court established the principle that third parties include all
those who suffer as a result of the use of the said motor vehicle in a public
place. These parties could be the occupants of the vehicle or even any other
persons travelling by road or in any other vehicle who fall victim to the accident.
All these individuals are liable to be awarded compensation as a result of such
an accident. The compensation is to be awarded by the insurance company that
the concerned vehicle holds a policy with.

Smt. Tulasi Sahukar v. New India Assurance Company (2010)

In this case, the issue addressed by the Court was with regard to the third party
liability after the death of the insured and during the process of transfer of
ownership of the vehicle.

The Court held that the transfer of the insurance policy to the wife of the
deceased was automatic and was deemed to have happened even if the policy
had not changed the name of the beneficiary despite the transfer of ownership
of the vehicle has already occurred.

Thus, the liability of the insurer would still be valid and does not cease to be in
effect even if the owner fails to intimate the insurer about the death as per the
provisions of the Act. The insurer would thus still be liable to compensate third
party victims who the policy owner has harmed.
Uttar Pradesh State Road Transport Corporation v. National Insurance Co. & Ors.

(2021)

In this case, the question put before the Supreme Court was whether the
insurance company or the corporation/owner of the vehicle was liable to pay the
award of compensation declared by the High Court. The argument of the
defendant was that since the Corporation was operating the said vehicle when
the accident took place, they were liable to pay the award.

The Court answered this question by reiterating the precedent set by it which
stated that “when the effective control and command of the bus is with the
Corporation, the Corporation becomes the owner of the vehicle for the specified
period”. Further, through the principle of vicarious liability, both the vehicle in
question as well as the insurance policy is deemed to be transferred to the
person in whose control the vehicle is for the time being and it would be the
insurance company’s duty to compensate the same.

Cases relating to motor vehicle insurance policies

Divisional Manager, Oriental Insurance Company Ltd. v. Tushar Ranjan Dash & Ors.

(2010)

In this case, the issue that the Court addressed was with regard to the situation
that arises in the event of cancellation of an insurance policy prior to an
accident.

According to the facts of this case, the insurance company themselves

unilaterally cancelled the insurance policy prior to the accident due to the
dishonour of a cheque deposited towards the premium by the insured party.

The question that arose was whether the legal heirs of the deceased victim/third
party could still claim compensation from the insurance company.

The Court held that since the contract of insurance contemplates third parties
who are not signatory to the party, this essence needs to be maintained and
thus regardless of the cheque being dishonoured or not, they were protected by
such an insurance contract. The dishonour of the cheque does not absolve the
insurance company of their responsibility, however, after compensating the third
party in this case, the company can require the insured to repay the same
amount to the company.
New India Assurance Co. Ltd. v. Rula & Ors. (2000)

In this case, the Court again highlighted that the cancellation of an insurance
policy by the insurer, solely on the grounds of the insurance premium not being
paid due to the cheque being dishonoured, does not cancel their liability to third
parties. Whether the premium has been paid or not is not the concern of the
third party. The third party is only concerned with whether there is the existence
of a policy or not. It is solely on this basis that the third party claims
compensation from the insurer.

National Insurance Co.Ltd v. Parvathaneni & Anr (2009)

The Supreme Court of India, in this case, held that when it has been established
that in the instance of a cheque towards the insurance premium being
dishonoured thus rendering the insurance company free from the liability of
paying the compensation amount to the claimants, then the concept of pay and
recover is in contradiction to the same. The Court logically held further that
when a person has no liability to pay at all, he/she cannot be compelled to do
the same.

The doctrine of pay and recover

The Doctrine of ‘pay and recover’ is covered under Section 149 of the MVA. The
basic essence of this policy is that the insurer is required to dispose of the claims
for third party compensation as quickly as possible as they are most in need of
financial aid at the time of an accident or emergency. This, however, does not
absolve the holder of the policy completely from paying any amount to the
insurer for indemnifying them. In case the sum is substantial and the owner
does not have such a large amount present with him/her at the moment, the
insurance company can pay on behalf of him/her and recover the same amount
over a period of time.

National Insurance Co. Ltd v. Swaran Singh & Ors. (2004)

In this case, the question dealt with was what defences could be used by the
insurance company to prove that they are not liable to pay any sum of money
according to the doctrine of pay and recover.

The Court held that only if the defence used by the insurer has formed a
fundamental part of the accident can the insurer escape their liability. The
defences available to the insurer are as follows-

1. If the owner of the insured vehicle or driver of the same was carrying a
fake license.
 2. If the owner of the insured vehicle or the driver of the same carried no
license whatsoever.
3. If the owner of the insured vehicle or the driver of the same carried an
expired license and no application had been made for the renewal of
the same either.
4. If the license held by the driver or owner of the vehicle carried another
class of vehicle which was not that which caused the accident.
5. If a person holding a learner’s license was solely driving the vehicle.
Thus, the onus of proof rests on the insurer to prove the validity of his defence.
The insurer shall also prove that the insured was guilty of negligence and failed
to exercise reasonable care in fulfilling the policy criteria. The rule put forward
by the court in determining the verdict of this case and for future cases
resembling the same was the rule of main purpose.

The same principle was applied by the Supreme Court of India in the case
of Shamanna vs. The Divisional Manager (2018).

In the case of National Insurance Co. Ltd vs Laxmi Narain Dhut (2007), the
Supreme Court of India applied the golden rule of interpretation and came to the
conclusion that fake licenses cannot be renewed by any Licensing Authority and
that even if by some chance such renewal was to occur, the same cannot be said
to take away the effect of the fake license by validating it. The court also shed
light on the difference between third party rights and own damage cases.

Parminder Singh v. New India Assurance Company Ltd. (2019)

In this case, the Supreme Court of India held that in the event of the permanent
functional disability of an individual in the age group of 15-23 years old, thus
ruining his/ her prospects of living a normal family life as well as having no
capacity to hold a regular job and thus not having the ability to earn a living for
the rest of his/her life, the functional disability of the individual can be said to be
100%. As a result of the same, the plaintiff was entitled to a lump sum
compensation.

As for the question of who was liable to pay such compensation, the Court held
that the insurance company was absolved from the same as per the conditions
discussed in the case above wherein the principle of ‘pay and recover’ cannot
apply in cases where the driver of the offending vehicle does not possess a valid
driving license. The insurance company in this case was directed to pay the
enhanced compensation to the victim and recover the same from the owners
and drivers of the offending vehicles later.

Loss of consortium and loss of love and affection

The Supreme Court of India in the case of The New India Assurance Company
vs. Somwati (2020) dealt with the issue of whether only the wife of the
deceased in a motor vehicle accident is entitled to a consortium or whether the
same can be awarded to the parents and children of the deceased as well. The
concepts dealt with in this case was that of parental, filial and spousal
consortium. The Court thus upheld the need for all the aforementioned forms of
compensation as they all fall within the ambit of relief provided to aggrieved
individuals through the beneficial Motor Vehicles Act, 1988. Compensation on the
grounds of ‘loss of love and affection’ was however not granted by the Court as
there was no justification of providing the same under a separate head when it
was deemed to be covered under the loss of consortium itself.

Conclusion
In order to provide more stringent measures and an exponential increase in
penalties, which were the need of the hour in order to control issues such as
road and environmental health, road safety, the fitness of vehicles and provide
additional means of compensation for victims of road accidents such as during
the ‘golden hour’ and to the ‘Good Samaritan’, the legislature enacted the Motor
Vehicles (Amendment) Act, 2019. This Act also provided for the establishment of
a National Road Safety Board under the Central Government as well as a
National Transportation Policy and National Register for Driving Licenses and
Vehicle Registration. Another interesting feature brought forward by this
amendment was the inclusion of taxi aggregators under the ambit of the MVA as
well as providing for means to obtain driving licenses online and better insurance
policies.

Explain the objects of passing of Consumer Protection Act,

1986. What are the salient features of the Act ?
It was with the emergence of the laissez-faire economy that the thought of consumer is
king was widely followed and accepted. The twentieth century was marked by the advent of
consumerism where there have been frequent trade wars and conflicts between markets
shareholders with constant ought to be higher than the rest. This resulted in stiff competition with
the traders resorting to unfair trade practices and manipulating the customers and took
advantage of the lack of information of the purchasers.

The leading case of Donoghue v. Stevenson [1] is taken into account to be the landmark
judgement for laws regarding product liability where the manufacturer was accountable to the
court for the presence of snail in the ginger beer bottle. This is the hallmark in the case regarding
consumer protection and called for the need for legislation to take care of the customers and
protect their interests.

The Consumer Protection Act was passed in 1986 and it came into force on 1st July 1987. The
main objectives of the act are to provide better and one spherical protection to customers and
effective safeguard against different types of exploitation like defective merchandise, deficient
services and unfair trade practices. It conjointly makes provisions for simple, speedy and cheap
machinery for redressal of consumer's grievances.

With the speedy growth in trade and commerce, the traders had an unfair favourable position
over the customers and this was an instantaneous consequence of industrialization. The
consumer had very little or no information regarding the rights available to them and thus were
pushed to a disadvantage. But, it had been solely in 1986 that the law markers of the nation
decided to structure and contour the efforts created towards protecting consumers' interest and
stressed the necessity of welfare legislation in the form of the Consumer Protection Act, 1986.

The salient features of the Consumers Protection Act, 1986 are [2]:
1. It applies to all goods, services and unfair trade practice unless specifically exempted by
the Central Government.
2. It covers all sectors- private, public or co-operative.
3. It provides for the establishment of consumer protection councils at the central, state and
district levels to promote and protect the rights of consumers and a three-tier quasi
consumer's grievances and disputes.
4. It provides statutory recognition to the six rights of consumers.

Aims and Objectives of the Act:

Consumer Protection Act 1986, enacted as an outcome of the widespread consumer protection
movement. On the foundation of the report of the Secretary-General on Consumer Protection
dated 27th May 1983, the United Nations Economic and Social Council recommended that the
world governments should build up, reinforce and implement a coherent consumer protection
policy taking into consideration the guidelines which were set.

The governments were to further provide sufficient infrastructural including the bodies as well as
financial facilities to develop, implement and monitor consumer protection policies. The
introduction of new products in the developing countries was to be asserted in relation to the
local conditions having regard to the existing production distribution and consumption pattern of
the country or region concerned.

With reference to the consumer movement and the international obligations for the protection of
rights of the consumer, provisions have 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 or rational
approach and not to technical approach is the mandate of law.

According to the preamble of the Act, the Act was enacted, to provide protection of the interest of
consumers. The use of the word 'protection' furnishes the key to the minds of the makers of the
act [3]. Various definitions and provisions which elaborately tend to achieve this objective have to
be construed in this light without departing from the settled review that a preamble cannot control
the otherwise plain meaning of a provision.

The act meets the long-felt necessity of protecting the common man from such wrong for which
remedy under ordinary law for various reasons has become illusory. The importance of the act
lies in promoting the welfare of society by enabling the customer to participate directly in the
market economy. It attempts to remove the helplessness of the consumer which he faces against
powerful business described as a network of rackets or a society in which producers have
secured power, to 'rob the rest of the public bodies.

The legislature has been taken precautions not only to

define complaint, complainant and consumer but even to mention in detail what would amount
to unfair trade practices by giving an elaborate definition in the clause (r) and even to define
defect and deficiency by clauses (f) and (g) for which consumer can approach the Commission
[4].

The Act thus aims to protect the economic interest of the consumer as understood in a
commercial sense as a purchaser of good and in the larger sense of services [5]. It is a milestone
in the history of socio-economic legislation and directed towards achieving public benefit. The act
has to be constructed in favour of the consumer to achieve the purpose of the enactment as it is
social benefit oriented legislation.

Subject to that, it should not do violence to the language of the provision and should not be
contrary to the attempted objective of the enactment [6].

For the settlement of consumer disputes and other connected matters, the Act has made
provisions for the establishment of consumer councils. At the district, state and central level
quasi-judicial machinery has been set up which will observe the principles of natural justice and
provide speedy and simple redressal to consumer disputes.

Every customer has certain rights and responsibility which this Act seeks to protect. For example,
every consumer has the right to informed to be informed about the quality, quantity, potency,
purity standards and rise of goods, the right to be protected against marketing of goods that are
hazardous to life and property, right to access to a variety of goods at a competitive price, right to
consumer education, right to be heard and to be assured that consumers interest will receive due
consideration at appropriate forum and finally the right to seek redressal against unfair trade
practices and unscrupulous exploitations of consumers.

The Supreme Court has held that the purpose of the Consumer Protection Act is the better
protection of interests of consumers and to make provisions for the settlement of consumer
council and other authority for the settlement of consumer disputes and matter connected
therewith.

The objects of the act are given in section 6 which makes it the responsibility of the Centre
Consumer Protection Council for achieving those objects

Section 6 says that

The objects of the Centre Council shall be to promote and protect the right of the
consumers such as: [7]

a. The right to be protected against the marketing of goods [and services] which are
hazardous to life and property;
b. The right to be informed about the quality quantity potency, purity in standard and price of
goods[or service 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 are
at a competitive price;
d. The right to be heard and to be assured that the consumer's interest bill received new
consideration at appropriate forums;
e. The right to seek redress and against unfair trade practices[or restrictive trade practices]
or unscrupulous exploitation of consumers; and
f. The right to consumer education.

1. Right to Protection against Hazardous Goods:

The Act gives every customer the right to be protected against hazardous goods and
service which are dangerous to life and property. Hazardous goods include for example
adulterated foods, narcotic drugs; weak cement etc all these being dangerous to life as
well as property. Even though government authority has several law at their disposal for
the prevention of marketing of hazardous goods and services yet any consumer who has
been injured either in his person or property may come for protection and he will have a
speedy and effective remedy for redressal.

The Law of Torts generally deals with the subject matter of dangerous goods. The
 leading case relating to dangerous goods is that of Donoghue v. Stevenson in which it
was held that a producer sending goods into the market would be liable to the ultimate
consumer if his person or property is injured by the normal use of the goods.

In this celebrated case a manufacturer who sold a substandard article to a retailer who
sold it to a consumer was held liable to a friend of the consumer who after consuming it
became ill, in fact, her illness was aggravated when remains of a dead snail which
sprang from a bottle of drink her had already taken. This landmark decision expanded the
category of a person's liability. From the producer to the ultimate consumer every person
in the chain has been made liable.

In another leading case of Grant v. Australian Knitting Mills [8] liability was attached to
the weavers of trousers which contain some chemical because of which the person who
wore those trousers had the problem of dermatitis (skin disease).

In the words of Winfield:

The principle has been extended from articles of food and drinks and includes inter alia
kiosks [9], tombstone, hair dye [10], industrial chemicals [11], lifts, motor-cars and parts,
toys and scented erasers. Likewise, the term 'consumer' includes the ultimate user of the
article or anyone who is within the physical proximity of it.

To all cases, whether it includes injuries to a child by a falling tombstone [12] or delivery
of defected cars [13] or liability to a person who was stranded in a lift [14], this principle
applies.

2. Right to information:
Every consumer has the right to be informed about the quality, quantity, potency, purity,
standard and price of goods or service, as the case may be, he buys or avails of. Right of
information has been given to the customers to protect them from unfair trade practices.
The term unfair trade practice has been described in Section 2 (1) (r).

Unfair trade practices include a false representation that goods or services are of
particular standard, quality, grade etc.; any false warranty or guarantee of performance of
the goods or services; publication of advertisement for sale or supply of goods or service
at a bargain price that is not intended to be offered for sale or supply at the bargain price;
offering of gifts, prizes or other items with the intention of not providing them as offered or
creating an impression that something is being offered free of charge when it is not so in
reality.

The case of Consumer Protection Council v. National Dairy Development Board [15]
can be usefully cited here. In this case, the complainant wanted to know that how the
dairy board was using the imported palmolein oil but the Board was not furnishing the
requisite information because according to it the figures were privileged from disclosure
in the public interest. It was held that the complainant had the right to information.

In India photographic Co v. HD Shourie [16], an importer of films was not able to print
prices on films because the nature of his trade did not permit him to open packages.
Therefore, he was directed to make a condition of attaching price tags to each item
before selling them to his retailers. Similarly, when Rs.88/- was charged for an article
which showed the price Rs.75 inclusive of taxes the buyer was given compensation for
Rs.500/- [17].

In cases of unfair trade practices, the consumer may apply either the Monopolies
Commission under the MRTP act or to the Forum constituted under the Consumer
Protection Act, 1986.
 3. Right of Access to Variety of Goods and Services at Competitive Prices:
Every consumer has a right to access variety of goods and services at competitive
prices. This can be done only when there is an organization of market and fixation of
market prices in such a way that all dealers are supplied with variety of goods for benefit
of the consumer and the goods are being offered at competitive prices.

This responsibility of bringing organization of market and market prices has been cast
upon the Central Consumer Protection Council by the Act. Certain liberty has been given
to the shopkeepers in respect of marketing so that goods and services of variety may
become available at competitive prices.

When a matter is brought to the notice of the Monopolies Commission that a shopkeeper
is insisting upon his customers to buy goods of one sort only, leaving them with no
choice, the Commission will inquire into whether the shopkeeper is tied up by a producer
so that it can liberate him to have his choice as to stock-in-trade. This power has now
also been given to the Central Consumer Protection Council by s. 6(c).

4. Right to be Heard and Receive Due Consideration at Appropriate Forums:

Every customer has the right to be heard and received due consideration at appropriate
forums. The Central Consumer Protection Council has been charged with the
responsibility of ensuring that each customer dispute and disagreement is heard properly
and of assuring that consumer's interest will receive due consideration at appropriate
forums.

5. Right against Unfair or Restrictive Trade Practices, Unscrupulous Exploitation:

Every customer has the right to seek redressal against unfair trade practices or restrictive
trade practices or unscrupulous exploitation. This responsibility has also been given to
the Central Consumer Protection Council.

When goods are marketed with ISI mark but in reality they do not correspond with the
requisite standard [18], where the money for the purchase of a car is deposited in
advance but no car is given within the prescribed time, where the lawn is booked for
marriage on non-refundable deposit but on the rescheduling of the marriage date the
lawn is not made available for marriage when in fact it was free that day [19], selling old
renovated goods as knew, selling oil which can cure baldness or medicines or which can
cure leucoderma when in fact they are not capable of curing these problems, are all
included in unfair trade practices.

6. Right to Consumer Education:

Every consumer has a right to education which means that every consumer must be
made aware of his rights as well as his legal remedies. As VM Shukla has observed in
the preface of his book Legal Remedies [20] that where people do not exercise their legal
remedies, the system of remedies tends to become rusted. People should have
knowledge of their rights and the availability of legal remedies when such rights are
curtailed.

By section 6(f) the Central Consumer Protection Council has been charged with the
responsibility of providing proper education to the people in terms of their remedies under
the Consumer Protection Act. Every individual is a consumer. When all of them are made
aware of their rights, they may help themselves against exploitation by manufactures and
traders.

Conclusion:
Lack of customer awareness and the existence of them as an unorganized sector the problems
that continue to pestilence the capitalistic economy. It gives the traders an unjust advantage over
the consumer who is subjected to market risks. This often leads to widespread exploitation of the
consumers and this is where COPRA as legislation becomes crucial.

In order to protect the long term interests of businessman and also to keep Government
intervention at a minimum, it is important for the Government to raise their quality of goods and
services and provide a substantial standard of goods and services to the consumer.

The Consumer Protection Act, 1986 is just legislation that tries to make sure of these aspects
relating to the promotion of interests of consumers. Even though there were multiple legislations,
it was only after the establishment of the Consumer Protection Act, 1986 that the consumer's
rights were structured properly in India. Consumer education and the protection of their interest
form the essence of the objective of this legislation. In order to bring this, accessibility should be
improved by a lot more participation in rural areas.

This is where the role played by the Voluntary Consumer Organisation becomes very important.
People who are often uninformed of the complexities of such proceedings can always approach
the organisation to carry their interest forward. There are a lot of questions that are yet to be
answered when it comes to consumer protection and the role played by both the consumers and
the Government. We, as consumers do have added responsibility to be aware about our rights
and make sure we are not subjected to any unfair trade practices

What are the main tests to determine remoteness of

damages ? Discuss.
Remoteness of Damage

The principle of Remoteness of Damages is relevant to such cases. An event constituting a

wrong can constitute of single consequence or may constitute of consequences i.e. series of
acts/wrongs. The damage may be proximate or might be remote, or too remote.

A few elaborations of cases would perhaps make it more clear.

1. Scott v. Shepherd:

‘A’ threw a lighted squib into a crowd, it fell upon ‘X’. In order to prevent injury to
himself, X did the same thing and it fell upon Y. Y in his turn did the same thing and it then
fell on B, as a result of which B lost one of his eyes. A was held liable to B. His act was the
proximate cause of damage even though his act was farthest from the damage in so far as
the acts X and Y had intervened in between.

2. Haynes v. Harwood

The defendant’s servants negligently left a house van unattended in a crowded street. The
throwing of stones at the horses by a child, made them bolt and a policeman was injured in
an attempt to stop them with a view to rescuing the woman and children on the road.
 One of the defenses pleaded by the defendant was remoteness of consequences i.e. the
mischief of the child was the proximate cause and the negligence of the servants was a
remote cause.

3. General illustration

A person is going driving on a road, he hits a girl on the footpath, the girl tumbles on a
bicycle breaks her finger, the bicycle man loses his balance and gets in front of a fuel
tanker, the tanker to save the man on the bicycle steers left but unfortunately hits the railing
to a river bridge and falls into it , the lock of the fuel tank breaks and the oil spills into the
river , the driver with the truck drowns.

In the above case:

o the girl being hit is the direct damage and it is the direct damage caused by the act of
A

o the damage caused to the cyclist is proximately caused by the falling of the girl and
is remote to the act of A

o the damage caused to the truck driver and the loss of material(fuel and fuel tank) is
remote to the act of A and proximate to the act of the cyclist. And it is to be noted
that the accountability to negligence is made on the assumption that the person is
aware of the fact that rash driving can lead to fatalities. (though the expected and the
actual results might not be the same).
Now, the starting point of any rule of the remoteness of damage is the familiar idea that a line
must be drawn somewhere. It would be unacceptably harsh for every tort feasor to be
responsible for all the consequences which he has caused.

Certainly, the question of where to draw the line on recover-ability of consequential losses
cannot be answered by a mathematically precise formula. Judges have used their discretion from
time to time, and in that process, two formulas have been highlighted:

1. The test of reasonable foresight

2. The test of directness

Test of Reasonable Foresight

According to this test, if the consequences of a wrongful act could have been
foreseen by a reasonable man, they are not too remote.

Pollock was an advocate of this test of remoteness. He opined, in cases Rigby v.

Hewitt and Greenland v. Chaplin, that the “liability of the defendant is only for
those consequences which could have been foreseen by a reasonable
man placed in the circumstances of the wrongdoer.”
But here we must note that it would not be a sufficient defence in itself to say
that the defendant did not foresee the consequences. Instead, it would be for
the Court to decide, upon the standards of reasonability, whether the
consequence should have been foreseen by the defendant or not.

This test of reasonable foresight lost its popularity to the test of directness. But,
as we shall see later, it managed to regain currency among jurists.

Test of Directness

According to the test of directness, a person is liable for all the direct
consequences of his act, whether he could have foreseen them or not; because
consequences which directly follow a wrongful act are not too remote.

Further, according to this test, if the defendant could foresee any damage, he
will be liable for all the direct consequences of his wrongful act. To understand
this particular test of remoteness better, it would suffice to look at the Re
Polemis Case.

Re Polemis and Furness, Wilthy & Co.

This case, popularly referred to as the Re Polemis Case, was the landmark case
on the test of directness. The Courts of Appeal held the test of reasonable
foresight to be the relevant test whereas later the Privy Council upheld the test
of directness.

The relevant facts of the case are that the defendants chartered a ship to carry
cargo. The cargo included a quantity of Petrol and/or Benzene in tins. There was
a leakage in the tins and some oil was collected in a hold of the ship. Now, owing
to the negligence of the defendant’s servants, a plank fell in the hold and
consequently sparks were generated. As a result of those sparks, the ship was
totally destroyed by fire.

In this case, the Privy Council held the owners of the ship entitled to recover the
loss, although such a loss could not have been foreseeably seen by the
defendants. It was held that since the fire (and the subsequent destruction of
the ship) was a direct consequence of the defendant’s negligence, it was
immaterial whether the defendant could have reasonably foreseen it or not. As
per Scrutton, L.J.:

“Once an act is negligent, the fact that its exact operation was not foreseen is
immaterial.”
Wagon Mound Case: The Re-affirmation of the Test of Reasonable Foresight
The test of directness that was upheld in the Re Polemis case was considered to
be incorrect and was rejected by the Privy Council 40 years later in the case
of Overseas Tankship (UK) Ltd. v. Morts Dock and Engg. Co. Ltd., also
popularly known as the Wagon Mound Case.

The facts of this case are as follows:

The Wagon Mound was a ship which was chartered by the appellants (Overseas
Tankship Ltd.). It was taking fuel at a Sydney port at a distance of about 180
metres from the respondent’s wharf. The wharf had some welding operations
going on in it. Owing to the negligence of the appellant’s servants, a large
quantity of oil was spilt on the sea which also reached the respondent’s wharf.
Due to the welding operations going on there, molten metal (from the
respondent’s wharf) fell, which ignited the fuel oil and a fire was caused. The fire
caused a lot of damage to the respondent’s wharf and equipment.

In this case, the trial court and the Supreme Court held the appellants liable for
the damage to respondents based on the ruling in Re Polemis. But when the
case reached the Privy Council, it was held that Re Polemis could not be
considered good law any further and thus the decision of the Supreme Court was
reversed. It was held that the appellants could not have reasonably foreseen the
damage to the respondent and therefore were not liable for the damage caused.

In the case Lord Viscound Simonds observed:

“It does not seem consonant with current ideas of justice or morality that, for an
act of negligence, … the actor should be liable for all consequences, however
unforeseeable.”

They also maintained that “according to the principles of civil liability, a man
must be considered to be responsible only for the probable consequences of his
act”.

And therefore with this case, the test of reasonable foresight regained its
authority to determine the remoteness of damage and subsequently the liability
of a person for the damage caused by him in cases of tort.

Wagon Mound Ruling Followed in Subsequent Cases

Hughes v. Lord Advocate

In this case, workers employed by the Post Office left a manhole in the road
unattended. Before they left the site, they covered the manhole with a tarpaulin
entrance and placed several paraffin lamps around it. The 8-year-old plaintiff,
attracted by the lamps, was playing around the manhole along with another
child. One of the lamps was knocked down, causing an explosion in the manhole.
The explosion resulted in damage to the plaintiff.

In this case, the Court held that even though the explosion was not foreseeable
by the servants of the Post Office, the type of the damage (burns) was.
Therefore, the defendants were held liable.

Doughty v. Turner Manufacturing Co. Ltd.

In this case, the plaintiff was employed by the defendant. Owing to the
negligence of other workmen employed by the defendant, an asbestos cover
slipped into a cauldron of molten hot liquid. The resulting explosion caused
injury to the plaintiff, who was standing nearby.

It was held that the damage which resulted from the explosion was not such that
could have been reasonably foreseen by the defendant, and therefore the
defendant’s negligence was not a proximate cause of the damage to the plaintiff.
The defendants were held not liable.

S.C.M. (UK) Ltd. v. W.J. Whittall & Sons

The Court of Appeals applied the test of reasonable foreseeability in this case. In
this case, due to the defendant’s workers’ negligence, an electric cable was
damaged. As a result of this damage, a long power failure followed in the
plaintiff typewriter factory. Consequently as a result of this power failure, the
plaintiff alleged that there had been a loss of production and damage to his
factory’s machines.

The Court in this case held that the defendants were aware of the fact that the
said electric cable used to supply power to the plaintiff’s factory, and that they
could have reasonably foreseen that any such power failure would lead to
significant loss to the plaintiff. And hence, the plaintiff was entitled to damages.

Discuss the various judicial and extrajudicial remedies

available for tortuous acts.

Remedies for Torts

1- Judicial Remedies: These are the remedies for torts that the courts of law provide
to an aggrieved party.

2- Extra judicial Remedies: If the injured party takes the law in their own hand
(albeit lawfully), the remedies for torts are called extra-judicial remedies.
#Judicial Remedies for Torts
As the term suggests, these are the remedies for torts that the courts of law provide
to an aggrieved party. Judicial remedies are of three main types:

1-Damages

2-Injunction

3-Specific Restitution of Property

Damages
Damages, or legal damages is the amount of money paid to the aggrieved party to
bring them back to the position in which they were, before the tort had occurred.
They are paid to a plaintiff to help them recover the loss they have suffered.
Damages are the primary remedy in a cause of action for torts. The word “damages”
should not be confused with the plural of the word “damage”, that generally means
‘harm’ or ‘injury’.The fundamental principle applied to the assessment of an award of
damages is that the claimant should be fully compensated for his loss. He is entitled
to be restored to the position that he would have been in, had the tort not been
committed, insofar as this can be done by the payment of money.

Types of Damages

1- Nominal Damages – Nominal damages are those in which even though the
plaintiff has suffered a legal injury at the hands of the defendant, there is no actual
suffered by him. These damages are provided in the cases of Injuria sine damno in
which the Court recognises the violation of the right of the plaintiff but the amount
of damages are so nominal or low because of no actual loss to the plaintiff.

In the case of Constantine v. Imperial London Hotels Ltd[1]., The plaintiff was a
cricketer from West Indies who had gone to the defendant hotel to stay but he was
rejected on the basis of his nationality, therefore, the plaintiff stayed at another hotel
and did not suffer any actual damage. In the case brought by him, the defendant was
held liable because the plaintiff’s legal right was violated despite no actual injury
happening and they had to pay nominal damages of five guineas.

In the case of Ashby v. White (1703) 92 ER 126[2], the plaintiff was prevented from
voting by the defendant and the candidate for whom the plaintiff was going to vote
still won. The plaintiff sued the defendant. It was held that even though no actual
damage was suffered by the plaintiff, the defendant was still liable for preventing him
from exercising his legal right to vote and thus nominal damages were awarded in
this case.

2- Contempuous Damages– In these type of damages, the Court recognises that

the right of the plaintiff is violated but to show that the suit brought by the plaintiff is
of such a trivial nature that it has only wasted the time of the Court, the Court awards
a meagre amount to the plaintiff as damages. This is similar to the nominal damages
but the only difference between the two is that in nominal damages the plaintiff
suffers no actual loss and in contemptuous damages, the plaintiff suffers actual
damage but it is a trivial one in which he does not deserves to be fully compensated.

Illustration: If A’s dog enters B’s house and relieves himself and B accidentally steps
on it and is disgusted and thus, he brings a suit against A, the Court will rule in B’s
favour but because of such a trivial nature of this case the damages awarded by the
Court will be of a meagre amount.

3. Compensatory Damages –Compensatory damages are awarded to help the

plaintiff to reach his original position at which he was before the tort was committed
against him. These damages are not awarded to punish the defendant but to restore
the plaintiff to his previous situation. These damages are very helpful in cases of
monetary losses in which the amount of loss can be easily calculated and therefore
that amount can be ordered to be paid to the plaintiff so that he can replace the
damaged product or goods with such amount.

Illustration: K takes T’s bike and due to his rash driving the bike gets damaged. Here
K can be awarded compensatory damages in which the amount for repairing the bike
will be payable to K by T so that the bike’s condition can be restored back to its
original state.

4. Aggravated Damages -These damages are awarded for the extra harm which is
caused to the plaintiff which cannot be compensated by the compensatory damages
and it is given for factors such as the loss of selfesteem, pain and agony suffered by
the plaintiff etc. which cannot be calculated in monetary terms. These damages are
therefore additional damages which are awarded to the plaintiff other than the
damages awarded for his pecuniary loss.

Illustration: A makes false claims against B as a result of which B’s standing in the
society is greatly affected and he is also ridiculed by people which leads to him
losing his self-confidence and self-esteem. Here Court can award B aggravated
damages for the humiliation and loss of confidence because of his suffering which is
caused by A’s act.
5. Punitive Damages – These damages are also known as exemplary damages and
the purpose of these damages is to punish the defendant and to make an example of
him so that others are deterred from committing the same act as he did. Thus,
whenever a Court feels that the act of the defendant was severely gross, it awards
punitive damages against him to the plaintiff.

Illustration: A company advertises that its pill will help in quick weight loss and is
made up of natural ingredients, as a result, the plaintiff purchases it. But due to the
pills containing certain chemicals, it makes the plaintiff severely ill. Here the Court
can not only allow compensatory damages to the plaintiff but because of the
company’s false claims, it can also award punitive damages so that it does not repeat
the act again.

6- General and Specific Damages- When there is a direct link between the
defendant’s wrongful act and the loss suffered by the plaintiff. For instance, a person
A, due to his negligence, collides his car with a person B, who has a rare bone
condition. In this case, the actual damage suffered by the plaintiff will be
compensated, not taking into account the rare bone condition of the plaintiff.
General damages are ascertained by calculating the amount of actual loss suffered
by the plaintiff. For e.g, physical pain and loss caused due to it, or if the quality of life
of the plaintiff is lowered.

Special damages are awarded by proving special loss. There is no straitjacket formula
to derive the actual amount. The plaintiff just has to prove the loss suffered by
him/her. For e.g., medical expense, loss of wage (prospective), repair or replacement
of lost or damaged goods/property.

Remoteness of ‘Damage’

As discussed above, the main aim is to bring the aggrieved party back to the status
quo, that is, compensating the plaintiff. As a general rule, damage suffered by the
plaintiff should be a direct consequence of the defendant’s act. Any action can have
multiple following consequences. A person cannot be held accountable for all the
consequences resulting from his act. The remoteness of consequences resulting from
a person’s act has been an issue of debate in the Law of Torts over the years. Various
tests were developed over time to determine what consequences of an act can a
person be held liable for. When there is no cause and effect relationship between the
defendant’s act and the injury caused to the plaintiff, the damage is said to be too
remote to be compensated.

Re Polemis Case (Re Polemis & Furness, Withy & Co Ltd)[3]

In this case, Polemis, the plaintiff owned a cargo ship that they had chartered to the
defendants. While unloading cargo from the ship, the defendant’s employees
accidentally knocked a plank into the ship, which caused a spark to ignite, that
resulted in an explosion. The question before the court was, whether the damage
due to the explosion was a direct result of the act of the defendant’s employee.

Leisboch Case (Liesbosch Dredger v SS Edison)[4]

In this case, the plaintiff’s dredger was damaged and sunk by the defendants
(Edison), due to their negligence. The dredger was working under a contract with the
terms that some amount had to be paid if the work was not completed on time. The
plaintiff did not have enough funds to arrange a new dredger to complete the said
work. They claimed all the resulting damages. The court held that the plaintiff’s own
lack of funds cannot be compensated by the defendants.

Injunction
Injunction is an equitable remedy available in torts, granted at the discretion of the
court. An equitable remedy is one in which the court, instead of compensating the
aggrieved party,asks the other party to perform his part of the promises. So, when a
court asks a person to not continue to do something, or to do something positive so
as to recover the damage of the aggrieved party, the court is granting an injunction.
A very simple example is that of a court ordering a company of builders to build on a
land near a hospital, for the construction sounds may be creating a nuisance to the
hospital.

An injunction is an order of a court that restrains a person from continuing the

commission of a wrongful act, or orders the person to commit a positive act to
reverse the results of the wrongful act committed by him, that is, to make good what
he has wrongly done. To receive injunction against a party one must prove damage
or the possibility of prospective damage (apprehended damage). An injunction can
be temporary or permanent, and mandatory or prohibitory. Let us discuss each of
them one by one. Law relating to injunctions is found in the Code of Civil Procedure,
1908 and from Section 37 to Section 42 of the Specific Relief Act (henceforth referred
to as the Act), 1963.

A suit of injunction can be filed against any individual, group or even the State.
According to the Section 37 of the Act there are two types of injunctions–temporary
and perpetual (permanent).

Case- M/S. Hindustan Pencils Pvt. Ltd. vs M/S. India Stationery Products[5]

In this case, the plaintiff filed a suit for perpetual injunction against M/s. India
Stationery Products for infringement of their trademark on their product ‘Nataraj’, in
respect of pencils, pens, sharpners, erasers, etc, claiming that the trademark was
adopted by them in 1961, and that the defendants had wrongly got themselves
registered a copyright similar to them. The court ruled in favour of the plaintiff
granting the defendant an interim injunction.

Specific restitution of property

The third judicial remedy available in the Law of Torts is that of Specific Restitution of
Property. Restitution means restoration of goods back to the owner of the goods.
When a person is wrongfully dispossessed of his property or goods, he is entitled to
the restoration of his property.

#Extra Judicial Remedies for Torts

When a person can lawfully avoid or remedy himself without the intervention of
courts, these remedies for torts are called extra-judicial remedies for torts. In this, the
parties take the law in their own hands.Extra Judicial Remedies for torts refers to
those remedies where an aggrieved person can take such actions that can undo the
damage that has happened to him, without the court’s intervention. There are 5
types of extra judicial remedies for torts that are available to people who have
suffered from some civil wrong. These include Expulsion of Trespasser, Right of Re-
entry on Land, Right of Re-caption of Goods, Abatement of Nuisance and Distress
Damage Feasant.

1- Expulsion of trespasser- A person can use a reasonable amount of force to expel

a trespasser from his property. The two requirements are: The person should be
entitled to immediate possession of his property.

The force used by the owner should be reasonable according to the circumstances.

Illustration : A trespasses into B’s property. B has the right to use reasonable force
to remove him from his property and re-enter himself.

2- Re-entry on land- the owner of a property can remove the trespasser and re
enter his property, again by using a reasonable amount of force only.

3- Re-caption of goods The owner of goods is entitled to recapture his/her goods

from any person whose unlawful possession they are in. Re-caption of goods is
different from specific restitution in that it is an extra-judicial remedy, in which the
person need not ask the court for assistance, instead, takes the law in his own hands.

Illustration: If A wrongfully acquires the possession of B’s goods, B is entitled to use

reasonable force to get them back from A.
4- Abatement- In case of nuisance, be it private or public, a person (the injured
party) is entitled to remove the object causing nuisance.

Illustration: A and B are neighbours. Branches of a tree growing on A’s plot enter B’s
apartment from over the wall. After giving due notice to A, B can himself cut or
remove the branches if they’re causing him nuisance.

5- Distress Damage Feasant- Where a person’s cattle/other beasts move to

another’s property and spoil his crops, the owner of the property is entitled to take
possession of the beasts until he is compensated for the loss suffered by him.

Conclusion for Remedies for Torts

In torts, the object behind remedying a party is to take the aggrieved party back to
the status or position that they were enjoying before the occurrence of tort. It is not
to punish the defendant, as in crime. Remedies for torts can be judicial and
extrajudicial. When due process of law is required for a party to gain remedy, and the
courts are involved, the remedies are called judicial remedies. When the law is taken
in his/her own hands by the parties, they are called extra-judicial remedies.

What is strict liability ? Discuss the exceptions of the rule

laid down in Rylands vs. Fletcher’s case.
INTRODUCTION

The principle of strict liability states that any person who holds dangerous substances in his
or her premises shall be held liable if it escapes the premises and causes any harm. This
concept came into being after the case of Rylands vs. Fletcher, 1868.
As per the facts, F had a mill on his property, and to power it, he had constructed a reservoir
on his land. Due to some accident, the water from the reservoir flooded the coal mine of R,
his neighbor. Subsequently, R filed a suit against F. The court held that the reservoir was
built on the risk of the defendant and during its operation, if any accident happens then the
defendant would be held liable, even if he was not negligent in his actions, for the accident
and escape of the material and the resultant damage caused.

Thus, from the aforementioned case, we can point out some essentials of the case.
 Bringing and accumulating on the Defendant’s land.
 Something likely to cause mischief if it escapes.
 Non-natural use of the land by Defendant. There is no specific definition of the
Natural use of land. It can depend and vary from place to place and from time to time.
 Escape of the material and foreseeable damage has taken place.
 Irrespective of the defendant’s degree of care.
It is called NO-FAULT LIABILITY.
ESSENTIALS OF STRICT LIABILITY
1. HAZARDOUS SUBSTANCE:
2. ESCAPE
3. NON-NATURAL USE OF LAND
HAZARDOUS SUBSTANCE:
 The liability only arises in the case where the defendant has a dangerous substance on
the land. For enforcing Strict Liability, a thing can be hazardous if it escapes can lead
to mischief or damage. Stuff like bombs, growing poisonous trees, etc.
ESCAPE:
 Another condition to be fulfilled is the escape of the substance from the defendant’s
premises. However, if the damage is caused but the substance is still within the
premises, then there’s no strict liability.
 For instance, if a person has grown poisonous trees on his field, but the poisonous
fruits of the trees fell on the neighbor’s garden, eating which he died. Here, the
defendant would be liable for the consequent losses/damages.
 Although, in another case, if the neighbor had entered the defendant’s field for eating
the poisonous apples. Then there would be no liability of the defendant.
NON-NATURAL USE OF LAND:
 There is yet another prerequisite for the strict liability to be applicable. There should
be a non-natural use of the defendant’s land. In the above-mentioned case
of Rylands vs. Fletcher, the construction of the reservoir was a non-natural use of
land, due to which the reservoir had burst and damaged Fletcher’s mine. A water
reservoir was considered to be a non-natural use of land in a coal mining area, but not
in an arid state.
 For example, in the case of Tesa Tape Asia Pacific Pte Ltd v Wing Seng Logistics
Pte Ltd [2006] SGHC 73, where the defendant put containers on his field which was
not meant for this purpose and its sudden collapse resulted in damages to the property
of the claimant, this was considered a non-natural use of land.
These three requirements should be met at the same time in order to constitute strict liability.

EXCEPTIONS TO THE CONCEPT OF STRICT LIABILITY

There are certain exceptions to the concept of strict liability:

1. PLAINTIFF’S FAULT/ SENSITIVENESS

2. ACT OF GOD
3. ACT OF THIRD PARTY
4. CONSENT OF THE PLAINTIFF
5. STATUTORY AUTHORITY
PLAINTIFF’S FAULT/ SENSITIVENESS
 If the plaintiff was at fault and thus damage is caused, then the defendant would not
be held liable because the plaintiff had himself came in the contact with the hazardous
thing.
 As in the case of EASTERN AND SOUTH AFRICAN TELEGRAPH CO. LTD. VS.
CAPETOWN TRAMWAYS CO. (1902), it was held that the damage to the plaintiff’s
property was caused not by the defendant’s negligence but by the unusual
 sensitiveness of the plaintiff’s property. Hence, no liability arose on the part of the
defendant in the present case.
ACT OF GOD
 The term “act of God” can be interpreted as an occurrence that is beyond any control
of human beings. Such happenings are entirely natural and take place without any
intervention from the human agency. They are impossible to be avoided even after
being prudent and cautious. The defendant would not be held liable for the damage
caused if the hazardous thing escapes due to such unforeseeable and unavoidable
natural events.
ACT OF THIRD PARTY
 The concept also doesn’t apply when the damage is caused by the acts of a third
party. Third-party means that the individual is neither the servant of the defendant nor
has any contract with or influence over the work of the defendant. However, in cases
where the act of a third party can be foreseen, it is assumed that the defendant should
have taken care of it, otherwise he can be held accountable.
 In the case of BOX vs. JUBB, the court held that the defendant would not be held
liable for the damage caused to the claimant’s land, as the reservoir overflowed
because a third party emptied his drain through the defendant’s reservoir.
CONSENT OF THE PLAINTIFF
 This exception is based on the principle of volenti non-fit injuria, which states that if
a person puts himself in a circumstance where harm may result, being well aware of
the danger, they may not be able to make a claim against the party in error.
 For instance, if A has a bike with broken breaks and B is well aware of this fact but
still rides it. In an accident, both suffer an injury but B can’t sue A for damages as
he consented to the foreseeable dangers.
STATUTORY AUTHORITY
 According to it, a person would not be held liable for the damages which arise by the
acts approved by the legislature. However, the statute itself may provide for
compensation to the aggrieved party.
 In the case of GREEN vs. CHELSEA WATERWORKS CO. 70L(1984), a principle
belonging to the company, which was authorized by the parliament to lay the main,
burst without negligence of the company and flooded the claimant’s premises; the
company wasn’t held liable.

What are the essential elements of a battery ? How battery is

different from assault ? Explain with the help of decided cases.
Assault and Battery are often used interchangeably but they are
different. They both are intentional tort. Every Battery includes
assault but every assault does not include a battery.

Assault generally means when a person planned and tries to

harm another person which also includes giving threats to
someone else and Battery, on the other hand, it means when a
person tries to compromise to harm physically to another person
without the person’s consent.
Assault and Battery can be treated in both ways that means a
person can be charged in civil lawsuit i.e. demanding for
compensation in the form of damages in monetary terms or
maybe in criminal lawsuit if the accused found guilty for the
offense can be put in jail.

ASSAULT
Assault comes in a picture before the battery. It happens when a
person plans and tries to harm to another person when a person
commits an act of battery. Act of assault can be tried under civil
lawsuits as well as criminal lawsuits.

Assault as a tort

It is civil assault, in which the person can sue the respondent for
the full extent of his loss, which may also include lost earnings
and pain and suffering of the past and future.

The accused made a reasonable apprehension of the infliction of a

battery on another person. When the accused creates his act by
an apprehension in the mind of the person that he is going to
commit battery against the person, the wrong of assault is
completed.

An inappropriate comprises of an endeavour to do hurt as

opposed to the damage being caused in this manner. In assault
charges must incorporate direct that is offensive which is
offensive or makes someone else dread of their wellbeing. This
unmistakably implies one can be liable of an attack regardless of
whether he/she didn’t truly hurt the person in question.

In R v St George[3] the court held that if a person is holding a

loaded gun to another person then this will be treated as an
assault. Even if the gun is not loaded but the person is holding a
gun from such distance that it may cause injury then maybe an
assault.

Assault as a crime –
It is a criminal assault in which the person can be put bind the
bars and he may be imprisoned, and may also have to pay a fine
and reinstatement. But the fine would be paid to the government,
and restitution would most likely cover only the medical bills, not
your non-economic losses such as pain and suffering stemming
from the incident.

A clenched fist would be treated as an assault, but throwing a

punch and hitting the person will amount to battery. Under
section- 351 of the Indian Penal Code define assault as criminal
offences.

If any person planes or make any gesture or do any action in

which he is about to use criminal force to another person, then it
said to be an assault. If a person is using mere words then it does
not amount to be an assault, but the words used by the person
may give to his gestures or preparation such a meaning as may
make those gestures or preparations amount to an assault.

Elements of the crime of assault are:

1. An act intended to create harm: to prove the crime of

assault then the person’s behaviour must be motivated to
create a situation of fear or danger in the victim’s mind.
Accident acts do not include allegations of assault.
2. A reasonable apprehension: the person must indicate
and the victim must believe that the person’s conduct will
harm me and he has the intention to cause it. The victim
has reasonable circumstances and the accused action is
showing that he will cause harm then assault has taken
place.
3. Imminent harm must be there: there should be prima
facia to do that harm. If a person showing a gesture to
cause harm to another person then it should be immediate
and cause a reasonable apprehension in the mind of any
prudent person.
R v. Constanza[4] in this case the defendant uses the word will
show the gesture it may harm her, he used to follow her, send
her letter and write offense words on the door. The court
overruled the judgement of R v. Meade and Belt and held that
the word which is used by the defendant is offensive and does
commit an assault.

Hopper v. Reeve[5]

If a person is about to sit on a chair and the chair is pulled, there

is an assault as long as he takes to fall to the ground. The
moment he makes contact with the ground, it will become a
battery.

BATTERY
It means when a person came in physical contact or touches
thing which belongs to that person or things related to that
person with the intention to harm the other person this is known
as Battery. In this the main ingredient physical conduct, when the
accused came in physical contact with the intention to harm
another person then the offense of Battery will be committed.
Every battery includes assault that’s why they both are used
together mostly.

The offence of battery can be committed in a civil lawsuit as well

as in a criminal lawsuit.

1. Criminal battery
2. Civil battery
1. Criminal Battery

When the battery is dealt with in criminal lawsuit, it means when

a person makes physical contact with the intention to harm/kill
another person this will be considered as Battery as a crime, in
this intention plays the important role of which to kill another
person. Under section-350 of the Indian Penal Code, the battery
is mention under the head of the criminal force.

This defines as if any person uses any kind of force without the
person’s consent and commits any offence while using such force
so that he can cause any injury, fear, or annoyance to the other
person that is known as Criminal Force.
2. Civil Battery

The civil Battery is regulated as a tort because this is a civil

wrong. When a person hurts or harm another person but he has
no intention to hurt or to harm that person and the accused also
not aware that the accused force will harm or hurt the person,
then this civil battery. Under this intention is not there to hurt
someone so the person can file a complaint in civil court.

Elements of Battery are as follows-

1. Use of Force

It means the use of force against any person without any

justification. The force has been used to cause harm to another
person no matter whether the harm is small or trivial in nature.
The use of force is necessary while constituting offence of
Battery. It can be done with stick, heat or any other item which
will cause harm to another person.

2. Without lawful justification

The force which is used by the accused must be unlawful. The

accused must not present any legal justification to justify his
action. The accused must have intention to hurt or kill to another
person.

Leigh v. Gladstone[1] In this case court pointed out that

intention is the necessary element to prove the guilty to the
accused. The force is used by the accused to feed the hunger
strike prisoner to save their life was a valid defence. Any injury
caused during the course of action was unintentional or injury is
caused by accident, this accident will do not constitute offence of
Battery.

Stanley v. Powell[2] the court held that the defendant was not
liable as the act was not willful. Use of force to oust a trespasser
is also justified, but it should be reasonable.
 Difference Between Assault And Battery

Assault Battery

Every assault does not include Every battery includes assault. Battery
battery is an aggravate form of assault.

Battery includes intentional application of

Assault is the attempt to commit
force to another person without any
battery.
lawful justification.

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

here physical contact is not In battery there must be a physical

necessary contact

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

of danger is sufficient. application of physical force.

Define the term tort. What elements are necessary to

constitute a tort ? Discuss.
TORT WORD USED FIRST TIME IN THE CASE OF BOULTEN VS HARDLY 1597

Definition:- The tort is completely based on the common law of England which is
codified and to give also tort is a progressive law, so it is a very difficult certain
definition of this word, but various eminent jurists defined the term tort in the
following manner.

ACCORDING TO SECTION 2(M) OF THE INDIAN LIMITATION ACT 1963,

‘Tort is a civil wrong which is responsible by an action for unliquidated and which is
other than a mere breach of contract or breach of trust’.
It’s According To Salmond

A tort is a civil wrong for which the remedy is an action for unliquidated( not pre-
fixed) damages and which is not exclusively the breach of contract or the breach of
trust or other merely equitable obligation.

It Is According To Fraser

The tort is an infringement(violation) of right in Rem of private individual giving a right

of compensation at the suit of the injured party.

ORIGIN OF TORT LAW

The ‘law of torts’ owes its origin to the common law of England. So it’s very well
developed in the UK, U.S.A, and other advanced countries.

In India law of tort is non-codified, like other branches of law e.g. Indian Contract
Act(I.C.A) 1872, the Indian penal code(I.P.C) 1860. It is still in the process of
development.

Tort law was perceived as an important component of common law. It was deemed
relevant in this case in India, but proper care was taken to make sure that it was
applied in accordance with the Indian context, customs, & traditions.

In the particular instance of Vaghela v. Mussedin, it was declared that the meaning
of the values of justice, fairness, and moral conscience should be construed as per
British common law rules, but in light of the Indian scenarios and traditions.

Later, in the case of Naval Kishore V/s Rameshwar A.I.R. 1995, it was mentioned
that the tort laws of England must be applied in accordance with the Indian scenario,
that is, in accordance with Indian customs & traditions.

Given the foregoing, English law is responsible for the stability of tort law in India.
This law has been in effect in Indian courts since 1726, but it is still in its initial
phases of development. The foremost reason for this:

 Not codified law.

 Legal illiteracy.
 Social inequality.
 Insufficient political willpower.
 The judicial system is both costly and time-consuming.
As a result, codification of the law, public awareness of the law, quick access to
equality, and strengthening political willpower are now required.
Tort of law objectives

 To decide the rights of the parties in dispute.

 To prohibit the injury from continuing or repeating, such as by issuing
injunctions.
 To safeguard specific legal rights of every individual, such as a person’s
status.
 To restore one’s own assets to their legal owner, i.e. when one’s property has
been unfairly taken away.
TYPES OF TORTS

Let’s take a look at the different types of torts before delving into the essential
ingredients of tort law. Intentional torts are the first; negligent torts are the second,
and strict liability torts are the third.

When a person deliberately decides to commit or omits to perform an act while

completely aware that a certain act or omission will cause damage or injury to any
person, the first type of tort occurs. Trespass, libel, assault, and other intentional
torts are examples of intentional torts. When some other patient struggles with harm
or injury as a result of one person’s negligence, the first individual is said to have
committed a negligent tort. An accident was caused by the disobedience of traffic
rules is an example of this type of tort.

It’s important to understand the meaning of the term “negligence,” which refers to
when a prudent person’s reasonable level of care isn’t followed. In strict liability torts,
an individual is found responsible for a wrong regardless of whether he or she
intended to do so or not. Rylands v. Fletcher, a well-known case, was crucially
important in establishing the law governing strict liability torts.

ESSENTIALS OF TORTS

To constitute a tort-:

 There must be a wrongful act or omission committed by a person.

 The wrongful act or omission must result in legal remedy in the form of an
action for damages.
 The wrongful act must be of such a nature to given rise to a legal remedy in
the form of an action for damages.

Wrongful Act Or Omission

To determine liabilities in tort it must be proved that the act or omission done by the
one person was a wrongful act. The act or omission must be legally wrongful.
Violation of moral, social, and religious rights does not come under the category of
torts.
Legal Damages

Another essential element is wrongful act or omission committed by one person must
result in legal damages to the other i.e. Such act or omission resulted in a violation of
legal remedy to another person. The following are the essential ingredients of the
legal damages:

 There must be an infringement (violation) of a legal right (absolute or

qualified).
 Such infringement of a legal right must have a presumption of damage in the
eye of the law.
 Proof of actual damages suffered in case the right contravened is not an
absolute but only a qualified right.
The real significance of legal damage can be

Best illustrated by the following two maxims:-

INJURIA SINE DAMNUM

It denotes harm with no damages Which means that there has been a violation of
legal rights but no damage has been done to the plaintiff. It basically indicates that
the plaintiff suffers no loss or damage; only his legal rights are violated.

Bhim Singh vs. Jammu & Kashmir State

Bhim Singh (plaintiff) was a J&K Assembly MLA. While being on his way to
Assembly, the plaintiff was wrongfully detained by police by police. He was also not
taken to the Magistrate. This act did not cause him physical or financial harm, but it
probably violated his legal & fundamental rights. The State was found liable and
ordered to pay compensation for damages.

DAMNUM SINE INJURIA

It denotes damages without causing harm. In short, the plaintiff has suffered losses.
They may be physical or pecuniary in nature, but no legal rights are violated.

Gloucester Grammar School

In this case, the defendant established a school in the same neighborhood as the
plaintiff’s school. The defendant even lowered the school’s fees. This was not a tort
case because the plaintiff suffered the only loss of money and none of his legal
rights were breached.
The Difference Between Injuria Sine Damnum And Damnum Sine Injuria

1. On the one hand, there is no physical harm or actual harm on the side of the
plaintiff in the situation of Injuria sine damnum but there is actual harm and
damage on the side of the plaintiff in the case of Damnum sine injuria.
2. Second, in the instance of Injuria sine damnum, the party probably suffers a
violation of their legal rights, whereas there is no such violation in the instance
of Damnum sine injuria.
3. Finally, Injuria sine damnum is legally actionable in courts, whereas Damnum
sine injuria is not.
4. Injuria sine damnum deals with legal wrongdoings, whereas Damnum sine
injuria deals with ethical wrongdoings.

Legal Remedy

To be successful in an action for torts the last essential is that the wrongful act or
omission must come under the category of wrongs for which the remedy is a civil
action for damages.

A tort is a civil injury, but all civil injuries are torts. The wrongful act must come under
the category of wrongs for which the remedy is a civil action for damages. Though
the specific remedy for a tort is an action for damages. But there are other remedies
also i.e. An injunction may be obtained in addition to damages in certain cases of
wrongs. To similarly, specific restitution of a chattel may be claimed in an action for
the detention of a chattel.

CONCLUSION OF THE LAW OF TORTS

There are a few resemblances between crime & tort, so even though tort, or private
action, was used better over the past centuries than criminal statutes. For instance,
assault is both a criminal offence and a tort. A tort permits a person, the victim, to
acquire a remedy that is beneficial to them. Illegal acts, on the other hand, are
continued to pursue not to acquire redress to aid or assist a person – through
criminal trials frequently have the power to grant such remedies – but to remove an
individual’s freedom on behalf of the state. This tries to explain why incarceration is
commonly used as a punishment for serious crimes but not for torts.

Explain the maxim ‘Injuria Sine Damno and Damnum Sine

Injuria’ with the help of decided cases.
Maxim refers to the established principles and prepositions. That is the general rules or principles
or guidelines laid down and which are to be followed by the general public. Maxims are very
useful, as with the help of this particular point of law can be understood clearly and precisely and
also used for the proper solution of the cases. Maxims are very widely used in various branches
of law and so in the law of torts.
As the law is a difficult subject having various interpretations, rules, and principles. It is therefore
considered necessary to have these combinations of various Latin and French words to be used
for much clearer understanding. However, the only difficult part of the use of these maxims is
that they have to be applied with full precaution. The person using these maxims has to make sure
that whether the case in which it is applied has its application in the same manner, or whether it is
an exception to the general rule, as any alterations of any of these maxims would be dangerous.

Injuria Sine Damno

Injuria Sine Damno is a legal maxim, which means that injury or loss or damage so caused to
the plaintiff without suffering any physical injury or damage. It is a Latin term, where ‘Injuria’
refers to injury ‘Sine’ refers to without and ‘Damno’ refers to a property or any physical loss,
therefore the term refers to ‘injury suffered without actual loss’. Here, in this case, the plaintiff
doesn’t have to prove the damages so suffered, he only has to prove that there is some legal
damage suffered by him, that is the action so brought is actionable per se. Like for example,
where A roams around B’s house without any justification then, in that case, there is a violation
of the legal right of B and therefore this maxim is applicable.

This maxim is well explained in the case Ashby vs. White[1]where the plaintiff was a qualified
voter at a parliamentary election, while the defendant who was a returning officer in election
wrongfully refused to take a vote of the plaintiff. Although the plaintiff didn’t suffer any loss by
such wrongful act as the candidate he wants’ to vote on the election, the legal rights of the
plaintiff were infringed and therefore the defendant was held liable.

Another leading case is of Bhim Singh vs. State of J. & K[2]., here in this case the petitioner was
an M.L.A. of J. & k. parliamentary assembly. While he was going to attend the assembly session,
police there wrongfully arrested him. He was not even presented before the magistrate within the
stipulated time. Resultant was that the person was wrongfully deprived of his legal right to attend
the meeting and moreover his fundamental right i.e. art 21 of the constitution was also violated. It
was held that the respondent was responsible, and the petitioner was liable to receive Rs. 50,000
from the defendant.

In case o Injuria Sine Damno the loss suffered is not any physical loss but due to the violation of
legal right. Therefore, damages received by the aggrieved party is because of some kind of loss is
being suffered, and hence the amount for damages are determined just to compensate the victim.
The amount for compensation can even be rs. 5. However, where the violation of a legal right is
owing to mischievous and malicious act, the number of damages so fixed can be increased as
done in case of Bhim Singh’s case.

Damnum Sine Injuria

Damnum Sine Injuria is a maxim, which refers to injury which is being suffered by the plaintiff
but there is no violation of any legal right of a person. In such circumstances, where there is no
violation of the legal right of but the injury, or damage is being suffered by the plaintiff, the
plaintiff can’t bring an action against the other for the same, as it is not actionable in law, unless
there is some infringement of a legal right is present.
Damnum Sine Injuria, the literal meaning of the word refers to loss or damage in terms of money,
property or any physical loss without the infringement of any legal right. It is not actionable in
law even if the act so did was intentional and was done to cause injury to other but without
infringing on the legal right of the person.

This can be better explained in the following case:

Gloucester Grammar School Case[3]

The defendant was the schoolmaster intentionally opened the school in front of the plaintiff’s
school, causing damage to him. As due to an increase of competition the plaintiff has to reduce
their fees from 40 pence to 12 pence per scholar per quarter. It was held that even though the
plaintiff has suffered harm but there was no infringement of any legal right, therefore, the
defendant can’t be held liable.

Mogul Steamship Co. Vs. McGregor Gow and Co.[4]

In this case number of companies trading in steamships, combined their hands with the intention
to drove the plaintiff’s company out of the tea-carrying company, by reducing and offering
assistance at a reduced price. It was held that the plaintiff has no cause of action as no legal right
has been infringed by the other companies.

Ushaben vs. Bhagyalaxmi Chitra Mandir[5]

In this case, the plaintiff pleaded before the court of law to issue a permanent injunction order on
the film named, “Jai Santoshi Maa”. According to her, the film hurt the religious feelings of the
plaintiff. It was observed that hurting of religious sentiments did not result in any legal injury,
and also that other then the plaintiff no other person feelings were hurt. Therefore it was held that
the defendant was not liable.

Difference between Damnum Sine Injuria & Injuria Sine Damnum

S.No Damnum Sine Injuria Injuria sine Damnum

Damnum sine Injuria refers to the

Injuria Sine damnum is the legal
damages suffered by the plaintiff but
1. injury caused to the plaintiff without
no damage is being caused to the legal
any damage to the physical injury.
rights as there is no violation of it

It is an infringement of a legal right

It is the losses suffered without the
where even if no loss has been
2. infringement of any legal right hence
suffered by the plaintiff still creates an
creating no cause of action.
actionable cause of action.
 No compensation in the form of Compensation in the form of damages
3.
damages is awarded by the court. is awarded by the court.

This maxim is for the moral wrongs This maxim is for the legal wrongs
4. which have no action in the eyes of the which are actionable if the person’s
law. legal right has been violated.

The principle of this maxim is that a The principle of this maxim is that
person exercises in such a manner whenever there is an invasion of a
5. within reasonable limits which does not legal right there creates a cause of
ground action in tort merely because it action and the person whose right is
causes damages to other people vested is entitled to bring an action.

In this, the plaintiff suffers legal injury

In this, the plaintiff suffers a loss but
6. doesn’t matter they have suffered any
has suffered no legal injury.
loss on that account.

Damages without injury are not This is actionable since there is a

7.
actionable violation of a legal right.

Discuss the “Enforcement of consumer rights” as provided in Consumer

Protection Act, 1986 and CPA (Amendment) Act, 2002.

In a world of markets where everyone is a consumer. Consumers are the ones who can
drove the economy. So in order to protect them, various acts have been enacted. In India,
the Consumer Protection Act, 2019 is one of such Act.

Who is a consumer or a customer?

A consumer is a person who buys goods or hails services. According to the Consumer
Protection Act, 2019 the definition of consumer is not limited to just buying goods and
services but it also includes –

1. Any person who uses the goods or services with the approval of the buyer is a consumer.

2. Person buying goods or hails services for self-employment is a consumer.

But a person who obtains goods for resale or commercial purposes is not a consumer.
How consumer rights can be enforced?

Consumer Protection Act, 2019 has laid down certain rights to consumers, these rights are
as follows:

1. The right to information – Consumers have the right to truthful information. Information
should not have an ill purpose and shouldn’t be incorrect.

2. The right to assurance – Assurance of qualitative goods and services. Consumers also
have the right of assurance of the variety of commodities and services at their disposal.

3. The right to consumer education – Consumers should also receive the right to get the
education on the consumers to do and don’t do. This is a very informative and
knowledgeable right at the disposal of the consumers.

4. The right to seek redressal– Upset consumers who have been a victim of exploitation can
take the matter to redressal agencies and file a suit against the insensitive seller.

5. The right to be heard – Every consumer has the right to be heard after being exploited.
The consumer can approach the court if the company doesn’t hear.

Under Section 2(6) of the Consumer Protection Act, 2019 the complainant can obtain relief
with respect to the following complaint, such as –

(a) an unfair contract or unfair trade practice or a restrictive trade practice has been
adopted by any trader or service provider;

(b) the goods bought by him or agreed to be bought by him suffer from one or more
defects;

(c) the services hired or availed of or agreed to be hired or availed of by him suffer from any
deficiency;

(d) a trader or a service provider, as the case may be, has charged for the goods or for the
services mentioned in the complaint, a price in excess of the price

(e) the goods, which are hazardous to life and safety when used, are being offered for sale
to the public
(f) the services which are hazardous or likely to be hazardous to life and safety of the public
when used, are being offered by a person who provides any service and who knows it to be
injurious to life and safety;

(g) a claim for product liability action lies against the product manufacturer, product seller
or product service provider, as the case may be.

6. Right to protection – There are three dispute redressal forum and on the basis of the
below mentioned territorial the pecuniary jurisdiction, complaints can be filed –

A. District Forum:

At the district level, there is a district consumer dispute redressal commission or district
forum. Complaints can be filed at district forum within whose jurisdiction any of parties
resides or in case cause of action arose. The district forum entertains only those matters
where total value of the goods or services or damages sought are not exceeding one crore.

B. State Forum:

At the state level, there is a state consumer dispute redressal commission or state
commission. Each state consumer redressal forum entertains complaints of those parties
who resides within the respective jurisdiction of the commission or in case cause of action
or in case cause of action arose in respective jurisdiction of the state. The state forum
entertains only those matters where total value of the goods or services or damages sought
are between from 1 crore to 10 crores. And as per section 48 of Consumer Protection
Act,2019, on the application of the complainant or of its own motion, the State Commission
may, at any stage of the proceeding, transfer any complaint pending before a District
Commission to another District Commission within the State if the interest of justice so
requires.

C. National Forum:

At the national level, there is national consumer dispute redressal commission. The forum
entertains only complaints where total value of goods or services or damages claimed is
more than 10 crores rupees. It entertains complaints and appeals from orders of state
consumer dispute redressal forums. It is situated in New Delhi. With reference to transfer of
cases, on the application of the complainant or of 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 Commission of one State to a District Commission of another
State or before one State Commission to another State Commission. Appeals from the
orders of national commission shall lie with the Supreme Court of India within a period of
thirty days from the date of the order.
District forum the commission consists of a President and two members where as in case of
state and national forum, the commission is consists of a President and four other
members.

Discuss the necessity and objects of compulsory Insurance of motor

vehicle under the Motor Vehicles Act, 1988.

Introduction

Motor Vehicle Act-1988

Motor accidents are a fairly commonplace occurrence in our daily lives. Motor accidents
occur very frequently and lead to considerable loss of life and property. To cover such
accidents and make provisions for them, a legislative mechanism namely the Motor Vehicles
Act 1988 has been instituted. The parties thus involved in a typical motor accident case
requiring judicial dispensation include the owner of the vehicle, the driver the insurers and
the deceased/injured. Motor Vehicles Act,1939 consolidates and amends the law relating to
motor vehicles. This has been amended several times to keep it up to date. The need was,
however felt that this Act should, now inter-alia take into account also changes in the road
transport technology, pattern of passenger and freight movements, development of the road
network in the country and particularly the improved techniques in the motor vehicles
management.

Objective of Motor Vehicles Act

 The Motor Vehicles Act, 1988 has been enacted keeping in mind the following
objectives;
 To take care of the fast increasing number of both commercial vehicles and personal
vehicles in the country.
 Concern for road safety standards, and pollution-control measures, standards for
transportation of hazardous and explosive materials
 Need for effective ways of tracking down traffic offenders
 Stricter procedures relating to grant of driving licences and the period of validity
thereof.

 Administration of the Solatium Scheme by the General Insurance Corporation.

 Provision for enhanced compensation in cases of “no fault liability” and in hit and
run motor accidents
 Provision for payment of compensation by the insurer to the extent of actual liability
to the victims of motor accidents irrespective of the class of vehicles
 Providing adequate compensation to victims of road accidents without going into
long drawn procedure
 Enhancing penalties for traffic offenders
 Increase in the amount of compensation of the victims of hit and run cases.
 Removal of time limit for filling of application by road accident victims for
compensation.
 Punishment in case of certain offences is made stringent.
 Formula for payment of compensation to road accident victims on the basis of age /
income, which is more liberal and rational etc.
In the case of Common Causes (A Registered Society) v. Union of India (2008), the SC held
that the Motor Vehicles Act, 1988 is a comprehensive enactment in respect to various matters
relating to traffic safety on the roads and minimization of roads and minimization of road
accidents.

Compulsory Insurance
The Motor Vehicles Act, 1988, like the earlier Act of 1939, makes the insurance of motor
vehicles compulsory. The owner of every motor vehicle is bound to insure his vehicle against
third party risk. The insurance company, ie, the insurer covers the risk of loss to the third
party by the use of the motor vehicle. Thus, if there is insurance against third party risk, the
person suffering due to the accident (third party) caused by the use of motor vehicle may
recover compensation either from the owner or the driver of the vehicle, or from the
insurance company, or from them jointly. All such persons risk of loss to whom, on account
of the use of the vehicle, is required to be covered are third party in the sense that they are
other than the first party the insurer and the second party' the insured.
Chapter XI of the Act (Sections 145 to 164) contains provisions concerning "Insurance of
Motor Vehicles against Third Party Risks".
According to Section 146, no person can use, except as a passenger, or cause or allow any
other person to use a motor vehicle in a public place, unless an insurance policy against third
party risks, as required by this Chapter, is in force, in relation to the use of the vehicle.
Section 146 (1), which contains the relevant as under :
"No persons shall use, except as a passenger, or cause or other person to use a motor vehicle
in a public place, unlese in any or allow any unless there is in force, in relation to the use of
the vehicle by that person at person or that other person, as the case may be, a policy of
insurance complying with the requirements of this Chapter: Provided that in the case of a
vehicle carrying, or meant to carry, dangerous or hazardous goods, there shall also be a
policy insurance cy of insurance under the Public Liability Insurance Act, 1991,”
Explanation.-A person driving a motor vehicle merely as a paid employee while there is in
force, in relation to the use of the vehicle no such policy as is required by this sub-section,
shall not be deemed to act in contravention of the sub-section unless he knows or has reason
to believe that there is no such policy in force."
The above stated requirement of insurance is not there in respect of any vehicle owned by the
Central Government or a State Government and used for Government purposes unconnected
with any commercial enterprise, or where an exemption from the requirement of insurance
has been given by the appropriate Government.
"196. Driving uninsured vehicle.—Whoever drives a motor vehicle or causes or allows a
motor vehicle to be driven in contravention of the provisions of Section 146 shall be
punishable with imprisonment which may extend to three months, or with fine which may
extend to one thousand rupees, or with both."
After Motor Vehicles (Amendment) Act 2019 penalty for driving without insurance increased
from Rs.1000 to Rs.2000/
Object of Compulsory Insurance
All motor vehicles to be used in public places need to be insured against third party risks. The
object of this provision is to protect the interest of a third party, who suffers by the use of the
said vehicle. If the vehicle is insured against third party risk the injured party can claim
compensation from the insurance company. Even if the driver or the owner of the vehicle is
not in a position to pay compensation to the accident victim, the insurer will pay
compensation on behalf of the owner of the vehicle insured. This provision aims at giving
relief to such person who would have suffered because of the inability on the part of the
owner or driver of the vehicle to pay compensation. The insurer is liable to indemnify the
person, or classes of persons, specified in the policy in respect of any liability, which the
policy purports to cover in the case of that person or those classes of persons. It is the duty of
the insurer to satisfy judgment against persons insured in respect of third party risk.
In India, under the provisions of the Motor Vehicles Act, 1988, it is mandatory that every
vehicle should have a valid Insurance to drive on the road. Any vehicle used for social,
domestic and pleasure purpose and for the insurer's business motor purpose should be
insured. This section is enacted to safeguard the rights of third party who may be involved in
motor vehicle accidents. If a motor vehicle is involved in an accident with some person, who
claims damages, it is the insurance company which is made liable by forcing the vehicle
owner to get the vehicle insured before he can legally drive the same on the road.

Critically examine the principles of contributory negligence.

What are various judicial trends is this regard in India ?

Contributory negligence

Contributory negligence basically means ignorance from both the parties

involved. If a person is driving a car without any breaks met with an accident
with another person who was driving on the wrong side of the road. This results
in contributory negligence. It’s a defence available to the defendant in case of
contributory negligence which prevents the plaintiff to get compensation.

Contributory negligence is the ignorance of due care on the part of the plaintiff
to avoid the consequences of the defendant’s negligence. This concept is loosely
based on the maxim- “Volenti non fit injuria” (injury sustained voluntarily). It
means If a person is not taking due diligence in order to avoid consequences
resulting out from the negligence of the defendant the liability of negligence will
be on both of them.

Principles of contributory negligence

 If the plaintiff is himself negligent for taking due care in order to avoid
consequences and becomes the direct cause of the damages, he is not
entitled to receive any compensation.
  If both the plaintiff and the defendant have taken reasonable measure
and ordinary care to such extent where they both wanted to avoid such
consequences then the plaintiff can’t sue the defendant.

Difference between contributory negligence and composite negligence

Contributory negligence Composite negligence

 Contributory negligence means

 Composite negligence means
ignorance on the part of the plaintiff
‘omission of an act’ from the part
in order to avoid the consequences
of two or more wrongdoer which
arising from the negligence of the
resulted in the injury of the
defendant.
plaintiff.
 Both plaintiff and defendant are held
 Wrongdoers or the defendants
responsible.
are jointly liable.
 There is a proximate relation
 There’s no such relation between
between the acts of the plaintiff and
the plaintiff and the defendants.
defendant.
 Wrongdoers are liable to pay for
 Both the plaintiff and the defendant
the injury sustained by the
are liable to pay for the damages.
plaintiff.
 Claim for damages by the plaintiff is
 Claim for damages is not reduced
reduced to the extent of his
to an extent.
proportion of negligence.

The burden of proving contributory negligence

The burden of proof lies over the defendant. In order to get the defence of
contributory negligence, the defendant must prove that the plaintiff is
responsible as him, and ignored due diligence which could have avoided such
consequences arising from the negligence of the defendant.

Hansraj v. Tram CO., 35 Bom.478

A attempted to board a moving tramcar and end up getting injured. He sued the
company. It was held that if he would have boarded in a tramcar, not in motion,
it would have been easier for him to get a firm grip in the handlebar and settle
down easily. The company was not held liable.

When the defence of contributory negligence is not available?

When it is not necessary for the plaintiff to take due care but the defendant was
legally obligated to perform such duty of care failure of which will result in the
liability of negligence for the defendant.
For eg.- A was travelling on a train with his brother. In order to show him
something outside the window got up and placed his hand on the window which
suddenly flew open. Though he could have avoided the accident, it was the duty
of the staff to properly screw the window which would have not resulted in such
an accident.

Davis v. Mann

In the instant case, the defendant ran over the donkey of the plaintiff while
driving at a fast pace. He was negligible and was entitled to pay compensation to
the plaintiff.

The third situation is when a defendant will not get the defence of contributory
negligence when he creates a situation under which the plaintiff gets reasonable
apprehension of imminent threat or menace to his life and in order to escape
such danger he acted rationally and avoided due care of diligence.

For eg. A, a bus driver was driving negligently and rashly due to which an
accident was about to take place. But B acting prudently jumped out of the bus
and sustained injuries. A is liable to pay for the damages sustained by B.

Brandone v. Osborne

In the instant case, the defendant was held liable for the injuries sustained to
the plaintiff who in order to save her husband from the negligence of defendant’s
workmen injured her leg.

The fourth situation is that contributory negligence is not applicable to maritime

law.

The fifth situation is that contributory negligence is not applicable is not over
children. The ability to think rationally and prudently like an adult is absent in a
child. Proper allowances are to be made for the lack of experience and their
minute sense of making any judgment. Though if they sustain any damage by
their own actions they will be liable for the negligence.

S.M. Railway Co. Ltd. v. Jayammal, (1924)

In the instant case, a 7-year-old girl was knocked down by an engine while
crossing the railway line. She was held responsible for the damages as she was
capable of understanding the danger and discrimination while crossing the
railway line.
Rule of last opportunity
The term rule of the last opportunity means the last opportunity to avoid an
accident. If in a situation both the plaintiff and the defendant are negligent on
their part and whosoever has the last opportunity of avoiding such consequences
fails to do so will be held responsible for such accident solely.

Illustration

A is out for a walk with his dog but without a leash on him. The dog suddenly
ran towards the road and got hit by B who was driving rashly. Here B had the
last opportunity to avoid that accident by pushing the brake pedal.

Limitations
Where the defendant is aware of the gravity of the consequences and fails to
take proper measure, he will be held liable.

For instance in the given example above if, B sees the dog from a long distance
and still avoids to take reasonable care which resulted in the death of the
plaintiff, he will be held liable.

The defendant would have the last opportunity but according to law, it is equal
to one he did for his own negligence.

Davies vs Mann 152 Eng. Rep. 588 (1842)

In the instant case, the defendant while driving a wagon killed the donkey of the
plaintiff which was fettered at the side of the road. It was held that the
defendant had the last opportunity to avoid the accident by taking appropriate
measures.

Rule of Avoidable losses

Rule of avoidable losses means the duty of an injured person to mitigate the
losses or damages. The plaintiff after sustaining injury could make appropriate
efforts in order to reduce the effect of such injury. This rule acts to disqualify the
plaintiff to take any award for the injury if the defendant can prove that the
plaintiff ignored to make such efforts in order to reduce the losses.
Strict liability
Strict liability means the liability of a person for causing damages even if it is not
his fault. This liability arises if a person keeps such dangerous substances in his
premise that is likely to cause mischief to the public if it escapes the premise.

In Rylands vs Fletcher the defendant employed some independent contractor

in order to build a reservoir in which he had no active participation. While the
independent contractors were in the middle of the construction, the discovered
old coal shafts which were not covered properly. Instead of taking reasonable
measure and covering the shafts they chose to work. This resulted in the
immediate burst of the reservoir which flooded the mine of the plaintiff. Plaintiff
brought a suit against the defendant in which it was held that the defendant was
responsible for the damages.

Contributory negligence is not a defence in case of strict liability though the

negligence or the ignorance from the side of the plaintiff is used to reduce the
compensation awarded for the damages.

Conclusion
It can be concluded that contributory negligence is the defence available to the
defendant which restricts or prevents the plaintiff to get rewards or
compensation. It is the omission of an act or ignorance to take due diligence for
avoiding the negligence of others. In the case of contributory negligence burden
of proof lies over the defendant. There are certain conditions to which the
defence of contributory negligence doesn’t apply as mentioned above.

Discuss the concept of strict liability and absolute liability.

Every person has certain legal rights, and it is the duty of other persons to respect
them. Fault-based liability means the defendant violates the plaintiff’s rights. In No-
Fault liability, the defendant is held liable to pay compensation even though he was
not at fault. No fault liability is categorised into two parts: 1. Strict liability and 2.
Absolute Liability. In this article, we will discuss strict and absolute liability in detail.

# Strict liability

The concept of strict liability evolved from the case of Rylands v. Fletcher (1868).
What actually a strict liability means is that anyone who retains dangerous chemicals
on their property is accountable for any errors made if those substances somehow
escape and cause harm. If there was no negligence on the part of the person
retaining it, this rule is valid, and the burden of proof is always on the defendant to
show why he is not guilty.
Rylands v. Fletcher

Two men were living adjacent to each other, i.e., Rylands and Fletcher. Fletcher had
a mill which required energy resources for which there was a need to construct a
reservoir. He hired some independent contractors and engineers for the
construction. Ryland owned certain mine shafts which the contractors didn’t observe.
Because of this, the water reached mines and destroyed Ryland’s land, for which he
suffered losses and sued for same.

Issue: Can the defendant be held responsible for another party's action that causes
an entity to leave his property without his knowledge or consent?

The defendant asserted that it was the contractor’s fault rather than his own. He
could not accept that he was responsible for the harm, even though he did not know
what caused it.

Judgment: The House of Lords held that Fletcher would be liable to compensate
Rylands for all the damage caused to him.

Following the precedent set by this case, even if a person did not act negligently
when retaining a dangerous object on his property, he will be held prima facie liable
for any harm caused by that object's escape. A person is liable not because of their
fault or negligence but because they kept a dangerous object on their property,
which then escaped and caused damage. The strict liability rule refers to the
situation where liability arises even in the absence of fault on the defendant’s part.

Based on this principle, certain essentials have been created that help to decide
whether liability is strict.

1. Someone must have brought something hazardous into their property.

2. There must be Non-natural use of land.

3. The hazardous item that was brought must escape and cause damage.

Exceptions of strict liability

1. Plaintiff’s own fault- Ponting vs Noakes would be a perfect example. In this

instance, the plaintiff's horse entered the defendant's property, ate some wild tree
leaves, and passed away. The damage would not have been caused if the plaintiff's
horse had not trespassed on the defendant's property. Hence, the defendant was not
held accountable. As there was no way out, the strict responsibility rule would not be
applicable.

2. Act of God- Whatever natural occurrence that is unpredictable, uncontrollable, or

unavoidable is not to be held responsible for any damage it does. In Nicholas v.
Marsland, 1876, the plaintiff's four bridges were destroyed when the defendant's
artificial lake flooded due to heavy rains. To obtain the damages, the plaintiff filed a
lawsuit. It was decided that the defendant was not responsible since an act of God
caused the accident.
3. Volenti non-fit injuria/ mutual benefit- If two people introduce something
artificial for their mutual advantage and it causes damage, neither of them may sue
the other for compensation.

4. Act of stranger- The defendant will not be held accountable by this rule if any
harm was brought by a third party over whom the defendant had no influence.

5. Statutory authority- A defence to a tort claim is an act performed under the

authority of a statute.

# Absolute liability

In the case of M.C. Mehta v. Union of India, the doctrine of absolute liability was
developed. This case was a significant turning point in Indian legal history by
establishing a new rule. The rule stated that an enterprise is strictly liable to
compensate all those harmed by an accident when the enterprise is engaged in a
hazardous or inherently dangerous activity and harm results to anyone as a result of
an accident in the operation of such hazardous or inherently dangerous activity.

M.C. Mehta v. UOI- A company owned by Union Carbide was established in Bhopal.
The factory produced pesticides and similar goods. 40 tonnes of hazardous gas
were released by the plant overnight on December 2nd, 1984. (methyl isocyanate).
The surrounding region of the facility turned into a gas chamber, resulting in 3000
fatalities and numerous injuries. All of the plant's safety systems were determined to
be broken throughout the examination. The Supreme Court decided against
adhering to the strict liability rule because doing so would let these industries off the
hook for the harm they inflicted and the lives they lost.

The rule stated clearly that when an enterprise engages in a risky or inherently
dangerous activity and harm is caused to anyone as a result of an accident while
carrying out such a risky or inherently dangerous activity, the enterprise is strictly
and absolutely liable to compensate all parties affected by accident and such liability
is not subject to any of the exceptions that apply to the tortious principle of strict
liability.

ABSOLUTE LIABILITY= STRICT LIABILITY - EXCEPTIONS

Essentials of absolute liability

1. Hazardous Substance - The accountability for a substance escaping from

someone's land will only become apparent if the substance is hazardous or
dangerous under the existing criteria. The substance must be hazardous because it
is damaging, hurtful, and potentially destructive.

2. Escape - It must be proven that something that caused hurt or damage escaped
the defendant's property or property under their control to hold them accountable. In
other words, the dangerous material must escape to endanger a victim and establish
absolute culpability. However, escape inside the building might also be considered
complete culpability.
3. Non-natural use of land - The facts of the case make it obvious. Water storage for
residential use can be natural, while large-scale water storage in reservoirs can be
unnatural. Growing trees or plants on land might be natural; cultivating toxic plants
can be unnatural.

4. Mischief - To hold the offender accountable, the plaintiff must demonstrate that
any hazardous chemical has escaped and resulted in damages.

Difference between Strict liability and Absolute Liability

Basis of
Absolute Liability Strict Liability
Difference
Level of
Mass Damage Limited damage
Damage
Many Defences (Volenti fit
Defence No Defence injuria. Act of god, plaintiff’s own
default)
Act of the third party, an act of
Exceptions No exception
god etc..
It depends on the Compensation is paid according
Degree of
capability of the to the nature and quantum of
Damage
company. damage
Element of
Not necessary Necessary
Escape

Conclusion

Absolute and strict liability are two related but distinct concepts within the same body
of law, the Law of Torts. Strict Liability is narrower than an absolute liability. Both
systems of law are founded on no-fault liability. Still, strict liability has several
exceptions, and if a case falls under one of those exceptions, the defendant is not
held accountable for the act. Absolute liability is a situation in which the defendant
must pay damages and is not permitted to raise defences. Because of India’s
industrialised economy and style, this liability is more well-known there. Even though
it is in England, it needs to be adequately described there.

Define malfeasance, misfeasance and non-feasance. Who

can be sued and who cannot be sued ? Discuss.
Malfeasance in Tort Law

 Malfeasance is applied when any unlawful act is committed.

 It is relevant to those unlawful acts which are actionable per se
 no proof is required with.
 For example, trespass.
Malfeasance is a broad term covering any act which is illegal and causes physical
or financial harm to another individual. It is an intentional act of doing
something wrong, either legally or morally. The term malfeasance is utilized in
both common law and criminal law to narrate any act which is unlawful or not
identified by law. It is not a different crime or tort but the word malfeasance is
used to n7arrate any act that is criminal or any wrongful act which causes injury
to any person. Under tort law, malfeasance has legal effect in civil court and the
defendant can be sued by the plaintiff for monetary damages. It is an act done
with an immoral purpose and the person has the knowledge that the act which is
being committed exceeds the authority of the person doing the act.

For example, a police officer is about to complete his rounds during his shift. His
shift is about to over and he wants to go home. While he is driving home, he
sees that a customer and the cashier at the gas station are having a heated
conversation. The officer was on duty at that time and he knew that his shift
would end in thirty minutes and if he stops there, it would take time and he will
not reach home in time.

After that he thinks, if he is on duty and if any serious issue arises when it is his
duty to stop there and try to handle the situation. The officer was aware that if
he will not stop the argument between the cashier and the customer, it might
turn into a fight but he simply ignored it and went home. Later, the cashier
was shot to death and the customer took the cash from the counter. This
accident would not have happened if the police officer had stopped at the place
where the incident took place, the serious consequences would have been
avoided.

Whether the act of officer was malfeasance or not? So, the act of officer was
malfeasance as he was aware of his proper protocol and the officer was still on
duty at that time when he saw the incident taking place. The officer knew that
he was supposed to stop at the scene in order to prevent any further argument
between the cashier and the customer. The officer chose not to stop, and his
choice led to the robbery and death of a cashier.

Another example of malfeasance is a judge taking bribe from the prosecution.

The judge had the knowledge that it is illegal to take money for giving judgment
in favour of a person. Since the judge knows that his action is illegal, but
continues to carry on doing the act anyway, it is an act of malfeasance.

For example, a school janitor is hired by a principal of a school. The janitor was
his relative and had put false employment history in order to get a salary at a
rate higher than the normal rate as he was facing some financial
problems. Knowingly committing a dishonest act with the motive of getting a
higher wage is malfeasance.
It is likewise relevant to the improper performance of some lawful act. For
example, assume that a janitor is cleaning a bathroom in a cafe. If he
intentionally leaves the floor wet without cleaning it properly, he or his boss
could be obligated for any injuries caused to any customer because of the floor
which was wet. This is because the janitor owed a duty of care to the people
using the bathroom, and he breached that duty by not cleaning the floor
properly.

Misfeasance in Tort Law

It means the “Improper performance of some lawful act”. Misfeasance
means carrying out legal and improper action, but it is done in such a way that it
harms others or causes injury to other people. Sometimes an act of a person
causes harm to other people unintentionally. While all these actions are often
mistakes committed by a person, there can be legal consequences for such
mistakes. Attached to those mistakes, misfeasance is the legal term used for an
act which is not illegal but performed in such a way that it harms another
individual. There are certain situations in which a person has to perform a duty
in the manner prescribed but the person fails to perform duty in a particular
manner then it will be an act of misfeasance. Generally, defendants are held
liable as the defendant has a duty of care towards the plaintiff but did not
perform the duty properly.

In Calveley v. Chief Constable of the Merseyside Police, it was held that for
the tort of misfeasance it was necessary that the public officer must have acted
maliciously or in bad faith. In the case of Dunlop v. Woollahra Municipal
Council, it was held that without malice the claim for misfeasance could not be
accepted.

For example, if a doctor performs an operation by using rusted tools or leaves an

alien object in the stomach during the procedure. Generally, a civil defendant
will be liable for misfeasance as the defendant owes a duty of care towards the
plaintiff and did not perform his duty properly, doing an operation is a lawful act
but there is an improper performance of the lawful act.

Another example, a janitor is cleaning a restroom in a restaurant and is

irresponsible and leaves the floor wet without any warning sign or board. In such
a case, he or his employer could be held liable for any injury caused because of
the wet floor. This is because the janitor owed a duty of care toward users of the
restroom, and he breached that duty by leaving the floor wet and therefore
would be held liable. It will come under misfeasance as the act was lawful but
there was an improper performance of the lawful act.

In the case of Jasbir Kaur vs the state of Punjab, a newborn baby was
missing in the hospital and staff of the hospital was not aware of it. After
searching a lot, the newborn child was found dead in the washroom and his one
eye was squeezed out. The hospital was held liable as there was negligence on
the hospital’s part in performing the act properly. It was misfeasance as the
hospital was negligent and there was improper performance of the lawful act.
Nonfeasance in Tort Law
Nonfeasance is the failure or omission to perform an obligatory or compulsory
act. If a person promises another person to perform a particular act and does
not perform it, then it is nonfeasance as the person was responsible for
performing the act. Nonfeasance is an act of intentionally neglecting to carry out
a duty which is an obligation and because of the failure to perform the
duty, someone is harmed or injury has been caused. It harms another person or
causes injury to a person’s property. It is the lack of ability associated with the
failure of the act. Unless and until a person has a pre-existing relationship he will
not be held liable for the failure of the act. It describes inaction rather than
action. Court believes that if people are not creating a dangerous situation then
also they must take proper care in order to prevent other people from a
dangerous situation. The relationships in which a person is forced to do
something or is compelled to do something are spouses, family members, school
authorities and students, employee and employers, doctor and patients, etc,
their duty is to protect each other from danger.

In Municipal Corporation of Delhi vs. Subhagwanti, a clock tower fell down

in Chandni Chowk, Delhi, many people were injured and many died. The clock
tower was not repaired for many years and the municipal corporation was
required to maintain it. The Municipal corporation failed to do so and the tower
collapsed. The municipal corporation was held liable as it was their duty to repair
the clock which they failed to do. It can be called as nonfeasance as there was
an omission in performing the compulsory act.

Difference between Malfeasance, Misfeasance, and Nonfeasance

Malfeasance Misfeasance Nonfeasance

The word “nonfeasance” is

The word “misfeasance” is derived from the French word
The word “malfeasance” is
derived from the French “faisance” meaning “action”,
derived from the French
word “misfeasance”, and the prefix non– which
word “malfaisance”, which
meaning “to mis-do”. means not.
means “wrongdoing”.

It means “improper Failure or omission to perform

It means the “commission
performance of some an act when there is an
of an unlawful Act”.
lawful act”. Example: obligation to perform that act.
Example: trespass.
negligence. Example: omission or wrongful
act.
Illustration- A company hires a catering company for providing food and drinks
in a retirement party. If the catering company didn’t come then it is considered
as a nonfeasance. If the company provides only food and did not provide a drink
then it is misfeasance. If the catering company accepts the bribes from
somebody to provide poisonous food then it is malfeasance.

Conclusion

There is very little difference between malfeasance, misfeasance and,

nonfeasance as malfeasance in the law of tort is the commission of an unlawful
act while misfeasance is the commission of a lawful act in an improper manner
and nonfeasance means failure to perform an act where there is a necessity to
perform the act. In all the three situations injury is caused to one person by
another person or there is some damage to the property.

Who cannot Sue and Who cannot be Sued ?

In the concept of a tort, usually a person who suffers injury has a right to
file a case against the person who caused him harm, but there are certain
categories of people who cannot sue a person for their loss and also there
are some people who cannot be sued by any person.

So, the question arises why these categories of people are restricted from
filing a case and also why do certain people are protected from such suits.

Who can sue?

Any rational person including businessman, organisation, government and
other individuals can sue, provided that, they are of sound mind and are
not disqualified by law.

Who cannot sue?

There are seven categories of persons cannot sue, only subject to certain
limitations:

1. An Alien enemy
2. Convict
3. Bankrupt
4. Husband and wife
5. Corporation
6. An Infant/Minor
7. A foreign state
Discuss the doctrine of sovereign immunity with the help of leading
decided case laws.

Meaning And Origin

Sovereign immunity is a justification for wrongs committed by the State or its representatives,
seemingly based on grounds of public policy. Thus, even when all the elements of an actionable claim
are presented, liability can be avoided by giving this justification.

The doctrine of sovereign immunity is based on the Common Law principle borrowed from the
British Jurisprudence that the King commits no wrong and that he cannot be guilty of personal
negligence or misconduct, and as such cannot be responsible for the negligence or misconduct of his
servants. Another aspect of this doctrine was that it was an attribute of sovereignty that a State cannot
be sued in its own courts without its consent.

This doctrine held sway in Indian courts since the mid nineteenth century until recently. When a
genuine claim for damages is brought to the courts, and it is refuted by an ancient doctrine seemingly
having no relevance, there is bound to be resentment and demands for review. The Indian courts, in
order to not let genuine claims be defeated, kept narrowing the scope of sovereign functions, so that
the victims would receive damages. The Law Commission of India too, in its very first report,
recommended the abolition of this outdated doctrine. But for various reasons, the draft bill for the
abolition of this doctrine was never passed, and thus it was left to the courts to decide on the
compatibility of this doctrine in accordance with the Constitution of India.

Before we proceed to discuss the extent of sovereign immunity as it has been carved out over the
years, it is necessary to take a look at Article 300 of the Constitution of India which spells out the
liability of the Union or State in acts of the Government.

Article 300
Initially in India, the distinction between sovereign and non-sovereign functions was maintained in
relation to the principle immunity of the Government for the tortuous acts of its servants. In India,
there is no legislation which governs the liability of the State. It is Article 300 of the Constitution of
India, 1950, which specifies the liability of the Union or the State with respect to an act of the
Government.

The Article 300 of the Constitution originated from Section 176 of the Government of India Act,
1935. Under Section 176 of the Government of India Act, 1935, the liability was coextensive with
that of Secretary of State for India under the Government of India Act, 1915, which in turn made it
coextensive with that of the East India Company prior to the Government of India Act,
1858. Section 65 of the Government of India Act, 1858, provided that all persons shall and may take
such remedies and proceedings against Secretary of State for India as they would have taken against
the East India Company. It will thus be seen that by the chain of enactment beginning with the Act of
1858, the Government of India and Government of each State are in line of succession of the East
India Company. In other words, the liability of the Government is the same as that of the East India
Company before, 1858
Types Of Sovereign Immunity:

The State generally benefits from two forms of immunity –

1) Immunity to jurisdiction –

A state’s immunity to jurisdiction results from the beliefthat it would be inappropriate for one State’s
courts to call another State under its jurisdiction. Therefore, State entities are immune from the
jurisdiction of the courts of another State. However, this immunity can generally be waived by the
State entity. Reference to arbitration is in many legal systems sufficient to demonstrate a waiver of
immunity to jurisdiction by the State. However, certain developing countries may be hesitant to
submit themselves to international arbitration, believing that arbitration is dominated by Western
principles and would not give a developing country a fair hearing. These same developing countries
may feel more secure submitting to arbitration under the UNCITRAL rules, which are often
considered more culturally neutral than those of the ICC or other Western tribunals.

2) Immunity from execution–

The State will also have immunity from execution, as it would be improper for the courts of one State
to seize the property of another State. Immunity from execution may also generally be waived.

Waiving immunity from execution may be difficult for a government to address. As a general
proposition under most legal systems, certain assets belonging to the state should not be available for
satisfaction of the execution of an arbitral award; for example, the country’s foreign embassies, or
consular possessions. Therefore, some method may have to be made available for the private party to
seize certain state assets, possibly through careful definition of those possessions available for seizure.

Case Laws
After the commencement of the Constitution, perhaps the first major case which came up before the
Supreme Court for the determination of liability of Government for torts of its employees was the
case of State of Rajasthan v. Vidyawati In this case, court rejected the plea of immunity of the State
and held that the State was liable for the tortious act of the driver like any other employer.
Later, in Kasturi Lal v. State of U.P., the Apex Court took a different view and the entire situation
was embroiled in a confusion. In this case, the Supreme Court followed therule laid down in P.S.O.
Steam Navigation case by distinguishing Sovereign and non-Sovereign functions of the state and held
that abuse of police power is a Sovereign act, therefore State is not liable.
In practice, the distinction between the acts done in the exercise of sovereign functions and that done
in non-Sovereign functions would not be so easy or is liable to create considerable difficulty for the
courts. The court distinguished the decision in Vidyawati’s case as it involved an activity which
cannot be said to be referable to, or ultimately based on the delegation of governmental powers of the
State. On the other hand, the power involved in Kasturilal’s case to arrest, search and seize are powers
characterized as Sovereign powers. Finally the court expressed that the law in this regard is
unsatisfactory and the remedy to cure the position lies in the hands of the legislature.
The Courts in later years, by liberal interpretation, limited the immunity of State by holding more and
more functions of the State as non-Sovereign.

To ensure the personal liberty of individuals from abuse of public power, a new remedy was created
by the Apex court to grant damages through writ petitions under Article 32 and Article 226 of the
Constitution. In the case of Rudal Shah v. State of Bihar, the Supreme Court for the first time
awarded damages in the writ petition itself.

In Bhim Singh v. State of Rajasthan, then principle laid down in Rudal Shah was further extended to
cover cases of unlawful detention. In a petition under Article 32, the Apex court awarded Rs. 50,000
by way of compensation for wrongful arrest and detention.
The latest case of State of A.P. v. Challa Ramakrishna Reddy on the point clearly indicates that the
distinction between Sovereign and non-Sovereign powers have no relevance in the present times. The
Apex Court held that the doctrine of Sovereign immunity is no longer valid.

Conclusion
Sovereign immunity is a common-law doctrine which originated in court decisions.
Historically, the doctrine of sovereign immunity has been justified on the grounds that the
King could do no wrong, the diversion of funds required for other governmental purposes
could bankrupt the State and retard its growth, the State could perform its duties more
efficiently and effectively if it were not faced with the threat of a floodgate of actions
involving tort liability, and it was more expedient for an individual to suffer than for society
to be inconvenienced.

Whatever justifications initially existed for sovereign immunity, they are no longer valid in
today’s society. Sovereign immunity from tort liability. Perpetuates injustice by barring
recovery for tortious conduct merely because of the status of the wrongdoer. Sovereign
immunity contradicts the essence of tort law that liability follows negligence and that
individuals and corporations are responsible for the negligence of their agents and employees
acting in the course of their employment. We conclude that the State’s sovereign immunity
for tort liability is outdated and is no longer warranted.

Although we abolish the State’s sovereign immunity from tort liability, our decision should
not be interpreted as imposing tort liability on the State for the exercise of discretionary acts
in its official capacity, including legislative, judicial, quasi-legislative, and quasi-judicial
functions.

“While the rule is that a suit cannot be maintained against the sovereign without its consent, it
is equally well established that a clear official duty, not involving the exercise of discretion,
may be enforced when performance thereof is arbitrarily refused, and that, if a person will
receive injury because an official is about to violate an official or legal duty, for which
adequate compensation cannot be had at law, such conduct may be enjoined.”

Furthermore, although we abrogate the State’s sovereign immunity from tort liability, I
conclude that abrogation should be prospective so that the Legislature can implement and
plan in advance by securing liability insurance, or by creating funds necessary for self-
insurance.
What is Defamation ? What are the valid defences available in an
action for defamation ?

MEANING of DEFAMATION:

Any purposeful false communication, either composed or spoken, that harms an

individual's standing, diminishes the regard, respect, or trust in which an individual is
held, or prompts unfriendly or obnoxious sentiments or sentiments against an
individual is called DEFAMATION.

Defamation is an injury to the standing of an individual. It is a wrong done by an

individual to another's standing by words, composed or spoken, sign or other
noticeable portrayals.

In the expressions of Dr. Winfield-

“Defamation is the publication of a statement which tends to lower a person in the
estimation of right-thinking members of the society, generally or which tends to make
them avoid that person.”

Illustration:

A distributes an ad in a local newspaper expressing fake data that the organization

of B has submitted extortion of Rs 20,00,000. Presently, this assertion will add up to
defamation as this paper will be read by numerous readers and will doubtlessly harm
the reputation of B's organization.

KINDS OF DEFAMATION:

Generally, there are two kinds of defamation: Libel and Slander.

1. Libel
It refers to defamation made in some permanent form, for example in composed,
printed, or comparable way. In this manner, it very well may be said that it will remain
as long as the sculpture or picture remains on.

For an activity to be considered as a criticism the verification in conflict ought to be

demonstrated as defamatory, false, disclosed, or recorded as a hard copy.
The remark that defamatory made ought to be straightforwardly or by implication
alluded to the offended party. Moreover, this remark ought to likewise draw a
sensible association between the remark and the individual.

Even though it's anything but fundamental that an individual ought to be named
explicitly nor is the goal of that respondent. However, criticism can't be made against
a class or a perished individual like specialists.

2. Slander

It refers to the form of defamation that is transient in nature, for example, oral
criticism i.e defamation. Subsequently, for this situation, the impact of criticism is
considered to remain alive for the time frame of remark or activity.

Slander is a common wrong, and exceptional harm must be demonstrated in

instances of defamation. Slander can likewise occur such that will intently address
defamation.

For instance, when you direct some abusive remarks to your representative who
thusly types it's anything but a letterhead the correspondence that will occur for the
third individual through the discourse.

ESSENTIALS OF DEFAMATION:
There are three main essentials of Defamation:

1. The statement must be published:

The main fundamental of defamation is the distribution of the defamatory substance

to an outsider. Except if there is a distribution of the assertion, no activity lies. Be that
as it may, assuming a third individual improperly peruses a letter implied for the
offended party, the respondent prone to be obligated.

However, if the defamatory letter shipped off the offended party is probably going to
be perused by another person, there will be a legitimate distribution.

In the case of Mahendra Ram v. Hamandan Prasad, the respondent had sent a letter in
Urdu regardless of knowing the way that the offended party couldn't understand Urdu
and the letter would need to be in the long run perused by another person or an
outsider. The respondent was expected to take responsibility for the offense of
defamation.

2. The statement must be defamatory:

Defamation is a public correspondence that will in general harm the reputation of

another. The type of articulations that are defamatory and the range of guards differs
from purview, however, there is a normal arrangement in all wards that explanations
that are unflattering, irritating, humiliating, or hurt one's sentiments are not
noteworthy.

In the case of Ram Jethmalani v. Subramanian Swamy court held Dr. Swamy to be at
risk for defaming Mr. Jethmalani by saying that he got cash from a prohibited
association to ensure the then CM of Tamil Nadu on account of the death of Rajiv
Gandhi.

In another new instance of Arun Jaitley v Arvind Kejriwal, the court held the
articulation said by Arvind Kejriwal and his 5 different pioneers to be defamatory. Be
that as it may, the matter was at long last revealed after every one of the litigants
apologized for their activities.

3. The statement must refer to the plaintiff:

It ought to be demonstrated by the plaintiff that the assertion was focused on him.
The expectation of the litigants is unimportant.

The inquiry whether the slanderous words alluded to the offended party is dictated
by a goals test and the responsibility emerges if the words are truth be told,
disparaging of the offended party, regardless of whether there has been a goal to
allude to the offended party or carelessness, according to the reference to the
offended party.

In the case of T.V. Ramasubha Iyer v. A.M.A Mohindeen, Court expected the
defendants to take responsibility for distributing an assertion with no goal to
stigmatize the litigants. The assertion referenced that a specific individual conveying
business of Agarbathis to Ceylon has been captured for the offense of smuggling.
The offended party was likewise one of the individuals carrying on a comparable
business, and because of this assertion, his standing was additionally seriously
damaged.
DEFENCES against DEFAMATION:

It is difficult to assume that all the suits instituted for Defamation are successful, as,
in several instances, the Court has also entertained certain defenses against such
accusation. Some of the are discussed below-

1. Justification or Truth:

Truth is an outright safeguard. Assuming the explanation made is valid, it doesn't

establish defamation. The weight of confirmation is on the respondent who is
guaranteeing the protection.

For example, A says something in a meeting about B enjoying betting and B records
a suit against him. On the off chance that A can legitimize or demonstrate it, B's case
will be excused.

In Radheshyam Tiwari v. Eknath, the respondent couldn't demonstrate the realities

distributed by him and accordingly was expected to take responsibility for
defamation.

2. Fair comment:

Nothing is defamatory which is a fair comment in the issue of public interest. The
respondent can benefit from this safeguard when he has only offered a reasonable
remark in a question of public interest. Any reasonable and legit assessment on a
question of public interest is likewise secured although it's anything evident.

The main principles identifying with the safeguard of fair comment have been
expressed by Duncan and Neill as follows:

1. The comment should be a statement of assessment as opposed to a declaration of

reality.
2. The comment should be reasonable without malice.
3. The matter commented upon should be of public interest.
3. Privilege:

This is additionally one of the central rules that there are conditions when freedom of
speech has the privilege and regardless of whether it is defamatory it is ensured.
The people's right to reputation is subordinate to the advantage of the right to speak
freely of discourse. This privilege might be; absolute or qualified.

 Absolute privilege: It gives the individual an outright right to offer the expression
regardless of whether it is defamatory, the individual is safe from responsibility
emerging out of slander claim. It applies to Parliamentary Privilege, Judicial
continuing, and State correspondence.

 Qualified privilege: A qualified privilege may apply to the topic that is of public
concern or is of adequate significance that conveying openly is basic. The
proclamation must be more likely than not to be without malice. The defendant needs
to demonstrate that assertion was made on a privileged event decently.

DEFAMATION LAWS IN INDIA AND ENGLAND:

There is a qualification as the distribution between English and Indian Law. English
Law treats libel, which is defamation through distribution in composed structure as
wrongdoing yet not Criticism, which involves slander through distribution in verbally
expressed words.

Under criminal law in the UK, just defamation is wrongdoing and under the law of
misdeeds, slander will be noteworthy just if:

1. There is an attribution of a criminal offense to the offended party recording the suit.
2. There is an explanation that the complainant had an irresistible illness which
further prompts society to keep away from him.
3. There is an abusive assertion concerning the inadequacy of an individual to the
workplace, calling, exchange or business carried on by him, or
4. If an explanation alludes to a young lady/lady's infidelity or character.
Under the law followed in India, notwithstanding, dissimilar to English Law doesn't
separate between libel and slander, and consequently, both are remembered for
Section 499 and comprise the offense of defamation.

DEFAMATION UNDER SECTION 499 IPC:

Section 499 of the Indian Penal Code, 1860 provides that

"Whoever, by words either verbally expressed or proposed to be perused, or by signs or

by noticeable portrayals, makes or distributes any ascription concerning any individual
planning to mischief, or knowing or having the motivation to accept that such
attribution will hurt, the standing of such individual, is said, besides in the cases
hereinafter expected, to slander that individual."

Then again, the Indian Penal Code offers a chance to the defamed individual to
likewise move a criminal court, requesting the last to take discernment from his
objection. It's a bailable, non-cognizable, and compoundable offense, which implies
no police can enlist a case and start examination without the court's consent.

Under Sections 499 and 500 of the Indian Penal Code, an individual saw as
blameworthy can be shipped off prison for a very long time. The Supreme Court has
held it's anything but a grip of petitions testing the sacred legitimacy of the two
correctional arrangements.

In a criminal suit, the complainant ought to have the option to demonstrate that the
blamed expected to defame him. Without a goal, it must be set up that the supposed
wrongdoer had information that the distribution was probably going to criticize the
individual.

Ordinary remain of confirmation in criminal cases, which is to demonstrate the

offense past a sensible uncertainty, should likewise be set under the steady gaze of
the court.

Since the law is compoundable, a criminal court can drop the charges if the person
in question and the denounced go into a trade-off with that impact (even without the
consent of the court).

EXCEPTIONS to Section 499, IPC:

Even though the Indian law does not make a differentiation between Libel and
Slander, there are, however, certain EXCEPTIONS to the application of this Section,
and they are given as follows-
 1. Truth for the Public good.

2. Fair analysis of Public workers.

3. Fair comment on open direct of public men other than a community worker.

4. Report of procedures of the court.

5. Case remarks.

6. Literary analysis.

7. Censure by one in power.

8. Complaint to power.

9. Imputation for Protection of Interests.

10. Caution in sincere trust.

LANDMARK CASES ON DEFAMATION:

Although Defamation is a concept in law, which in India is heavily divided between
the Law of Torts and the Indian Penal Code as well. This phenomenon, however,
has led to some interesting and landmark cases falling under this category of law.
Some of those cases are discussed below-

1. G Narasimhan v. TV Chokkappa :
In the above-mentioned case, the Apex court saw that a defamatory assertion
coordinated towards an affiliation or an organization will likewise cover the
assortment of people.

In any case, the Hon'ble Court observed: "Such assortment of the individual should be
a recognizable body so it is feasible to say that with definiteness that a gathering of
specific people, as recognized from the remainder of the local area, was maligned.

Thusly, for the situation where clarification was turned to the character of the
organization or the affiliation or the assortment of people should be set up to be
relatable to the disparaging words or ascriptions.
Where composing denounces against humanity as a rule or a specific request of men it
is no criticism. It should plunge to points of interest and people to make it defamation."

2. Shreya Singhal v. Union of India

This is a landmark case where the Supreme Court, after upholding the Right to
Freedom of Speech and Expression under Article 19(1)(a) and held that the law on
Censorship passed by the Central legislature was unconstitutional.

“Any law seeking to impose a restriction on the freedom of speech can only pass
muster,” wrote Justice Nariman, “if it is proximately related to any of the eight subject
matters set out in Article 19(2).”

It held that online intermediaries would only be obligated to take down content on
receiving an order from a court or government authority. The case is considered a
watershed moment for online free speech in India

3. T.J. Ponnen v. M..C. Verghese

In the above case, the court held that a letter sent by a spouse to his better half
which contains disparaging about the father-in-law does isn't an instance of criticism.
It's anything but a special correspondence between the life partners according to
Section 122 of the Indian Evidence Act, 1872.

4. Subramanian Swamy v. Union of India

In the case of Subramanian Swamy v. Union of India, a request concerning the
decriminalization of slander was recorded. The request tested the established
legitimacy of Sections 499 and 500 of the Indian Penal Code, 1860 is a nonsensical
limitation on the ability to speak freely and articulation.
The pinnacle court held that criminal slander under Sections 499 and 500 didn't abuse
Article 19(1)(a) as it's anything but a sensible limitation under Article 19(2). The term
'slander' in Article 19(2) incorporates both common and criminal maligning.

Sections 499 and 500, IPC 1860, were held to be non-biased and non-discretionary
and not violative of the right to correspondence ensured under Article 14 of the
Constitution.

While in a majority rules system an individual has an option to censure and

difference, however his right under Article 19(1)(a) isn't total and he can't malign
someone else as that would annoy the casualty's key right to notoriety which is an
indispensable piece of Article 21 of the Constitution.

5. Gorantla Venkateshwarlu v. B. Demudu

In the above case, the respondent was a bank official and was sent on assignment
to function as the Managing Director of Co-usable society.

The litigant, the President of Society sent a grumbling to the Bank charging that the
respondent had illegal associations with women which influenced the picture of the
general public during his residency as the Managing Director.

The respondent sent an answer denying the charges made against him. The branch
administrator of the bank directed a request and discovered that the claims were
bogus and were made uniquely to see that the respondent isn't deputed to review
the issues of the general public.

The respondent instituted a suit of slander guaranteeing harms of Rs. 20,000. The
court held that the claims were as such abusive and the litigant was at risk to pay
damages.

In any case, the court considered the way that the charges were spread the word
about just to staff and the Bank and there was no wide exposure, so the appealing
party was obligated to pay Rs. 5000 as harm.

CONCLUSION

Thus, till now we have come to understand the meaning of Defamation, the various
necessities that constitute a suit for Defamation, various defenses available against
a suit of defamation, and the position of the law of defamation in India.
Besides the above, we have also discussed some important cases related to
defamation to better understand the theories and concepts we have discussed
above.
Explain the characteristics of law of torts and discuss briefly the
origin and development of law of torts in India.

Introduction

One moment you are walking on the road and the other you slip into the pit left
open by the Municipal Corporation. Without having a glance around, you stand
up quickly to cover up the embarrassment you have faced. But what can you do?
This happens every now and then especially in a country like India. Is there
anyone who could be blamed for this? I have sustained injuries so I should be
more careful from the next time. Isn’t it? No, there was a responsibility of
Municipality in this situation. They were negligent in fulfilling their duty. This is
what law of torts talks about and much more.

What is Tort?

 The word tort has been derived from a Latin word “tortum” which
means twisted or crooked. According to Salmond, “Tort is a civil wrong
for which the remedy is a common law action for unliquidated
damages, and which is not exclusively the breach of contract, or, the
breach of trust, or, other merely equitable obligation.”
 It is different from breach of contract and trust. Tort is when the act of
one party causes some harm to the other party due to negligence,
carelessness on the part of another party. The one who sues is known
as ‘plaintiff’ and the one who is sued is known as ‘defendant’.
 The person who causes such harm shall be made liable to pay
compensation to the injured party (plaintiff), this compensation can be
in the form of money. This money received in the form of
compensation is known as ‘damages’. In order to claim damages, there
must be some breach of duty towards plaintiff which resulted in such
injury.
 Even if the harm which is caused was not intentional but due to
carelessness or negligence, then also the other party can be sued. Tort
allows people to hold the other person accountable for the injuries
suffered by them.
Essentials of Law of Tort

1. Act/omission: To constitute a tort there must be an act, which can

either be negative or positive. There must be some breach of duty to
constitute such wrongful act or omission. It means there was a duty to
do or not to do a certain action, or to behave in a particular manner
which a reasonable man is expected to act under certain
circumstances. If a corporation maintains a children park which has a
poisonous plant but fails to put proper fencing. If one of the children
eats a fruit from that tree and dies, then the corporation can be held
liable for such an omission. A person cannot be held liable for social or
moral wrong. For example, if somebody fails to help a starving man
then he cannot be held liable because it is a moral wrong unless some
legal duty can be proved.
2. Legal Damage: In order to constitute tort, breach of legal duty must
be there. The legal right vested with the plaintiff should have been
breached i.e certain act or omission have resulted in the breach of legal
duty. The action can be instituted if there is a breach of legal right. For
the injury sustained by the plaintiff, damages could be claimed by him.
Legal damage could be understood more clearly with the help of
following maxims:

1. Injuria sine damnum: “Injuria” means unauthorised interference with the

right of the plaintiff. “Damnum” means harm or loss suffered in terms of
comfort, money, health etc. When there is violation legal right without any harm
to the plaintiff, the plaintiff can approach the court.

In Ashby v. White, the plaintiff was detained by the defendant, a returning

officer. The plaintiff was a qualified voter at the parliamentary election but due
to detention, his voting right was violated. The plaintiff sued the defendant for
violation of his legal right. Since there is a right there is also a remedy available
for it.

Similarly, in Bhim Singh v. State of J&K, plaintiff was an MLA of J&K who was
detained wrongfully by the police officer while he was going to attend Assembly
session. The fundamental right of personal liberty was violated and moreover, he
was not presented before the magistrate within the requisite period. Here the
wrongful and malicious act of the defendant was actionable so court awarded
exemplary damages of Rs 50,000 to Bhim Singh.
2. Damnum sine injuria: According to this maxim, there is some injury caused
to the plaintiff without any unauthorised interference to plaintiff’s legal right. A
person cannot claim damages in law even if the injury is caused due to the
deliberate act of the defendant, as long as the other party is exercising his legal
right. For example, a defendant set up a school exactly in front of the school of
the plaintiff. The plaintiff suffered loss because of the rival school as he has to
lower the fees and many students took admission in defendant’s school. There is
no remedy available for the loss suffered by him. The defendant has not done
anything in excess of his legal right.

Development of law of torts in India

To deal with the malicious behavior of the people tort existed in Hindu and
Muslim law but it can be said that tort was formally introduced by the Crown in
India. It is based on the principles of equity, justice, and good conscience. The
law of torts is based on the principles of ‘common law’ which is mainly the
English law of torts. The application of the law of tort is an applied selectively in
Indian courts keeping in mind if it suits the circumstances of Indian society.

Justice Bhagwati in M.C Mehta v. Union of India observed that:

“We have to evolve new principles and lay down new norms which will
adequately deal with new problems which arise in a highly industrialized
economy. We cannot allow our judicial thinking to be constructed by reference to
the law as it prevails in England or for the matter of that in any foreign country.
We are certainly prepared to receive light from whatever source it comes but we
have to build our own jurisprudence.”

Explain the rule relating to Joint Tort Feasors. Whether the rule law
laid down in the case of Merry Wheather vs. Nixon is applicable in
India ? Explain with illustrations.

Introduction
When two or more persons unite to cause damage to another person, then
they will be liable as joint tortfeasors. All those who actively participate in the
civil wrong commission are joint tortfeasors. Based on the percentage of
damage caused by his negligent act, each joint tortfeasor is responsible for
paying a portion of the compensation granted to the complainant. According
to the principle of contribution, the defendant who pays more than his share
of the damages, or who pay more than he is at fault, may bring an action to
recover from the other defendant.

Illustration

The claimant has the right to recover the damages from both the defendants,
if X and Y are found to be at fault.
Liability of Independent Tortfeasor
They are severally liable for the same damage due to an independent course
of action. In Thompson v. London County Council, it was observed that
“the damage is one but the cause of action which led to the damage are
two”. Such tortfeasors are, therefore, severally liable for the same damage,
not jointly liable for the same tort.

In Koursk case, Koursk and Clan Chisholm collided with one another. As a
result, the ship Clan Chisholm collided and sank another ship Itria. The
owners of the damaged ship Itria recovered the damages from Clan Chisholm
for the loss suffered but were not fully satisfied as the liability of the owners
of Clan Chisholm was limited to the lesser amount. Subsequently, owners of
Itria filed a suit against the Koursk also. It was held that Koursk and Clan
Chisholm were not joint tortfeasors but only independent tortfeasors. The
liability of the Independent tort was held to be several and not joint and
therefore, there could be as many causes of action as the number of
tortfeasors.

Liability of Several Concurrent Tortfeasors

When the same injury is caused to another person by two or more person as
a result of their separate tortious acts, this results in several concurrent
tortfeasors. Even where successive injuries are caused, the parties remain
multiple, concurrent tortfeasors as long as the negligence of each is both a
factual and proximate cause of each injury.

Illustration

Several concurrent tortfeasors will occur in a chain collision situation, as

described in the case of Rutter v Allen.[1] In this case, the plaintiff stopped
his vehicle behind a truck that had come to a sudden stop. The Plaintiff was
then struck from behind by a vehicle driven by the defendant X which was
struck by a vehicle driven by the defendant Y. The exact sequence of the
collisions could not be determined with certainty because they all occurred
within a very short time frame. Despite this, it was held that due to both the
defendant’s negligence, the damage had been caused to the plaintiff’s
vehicle. As a consequence, the accused were several concurrent tortfeasors
and were jointly and severally liable for the damage caused by their
negligence.

If a complainant suffers multiple accidents, several concurrent tortfeasors

may also be the individual tortfeasors from each accident. For example, in a
motor vehicle accident in Hutchings v Dow[2], the complainant suffered
damage. He was further injured in an assault about 18 months later. It was
determined that the complainant suffered from severe and ongoing
depression resulting from both the motor vehicle accident and the assault.
The court stated that “several tortfeasors whose acts combined to produce
the same damage, i.e. depression,” were the defendants from the motor
vehicle accident and the assault perpetrator.

Liability of Joint Tortfeasors

When two or more persons join together for common action, then all the
persons are jointly and severally liable for any tort committed in the course
of such action. There were three principles in English Common Law with
regard to the liability of joint tortfeasors.

 The first principle is that the liability of wrongdoers is joint and

several i.e. each is liable for the whole damage. The injured may
sue them jointly or separately.
 The second principle was laid down in the case of Brinsmead v
Harrison, where it was held that a judgment obtained against one
joint wrongdoer released all the others even though it was not
satisfied.
 The third rule was laid in the case of Merryweather v
Nixon, where it was held that in common law, no action for
contribution could be sustained by one wrongdoer against another,
although one who sought a contribution might have been compelled
to pay the full damages. The reason alleged for this rule was that
any such claim to the contribution must be based on an implied
contract between the tort-feasors and that such a contract was
illegally concluded with a view to committing an illegal act.
But the above rules were virtually abolished by the Law reforms Act, 1935
and the Civil Liability Act, 1978. The first rule in Brinsmead case being
unjust, was abolished by the Act 1935 and therefore by the Act of 1978
which now provides that judgment recovered against any person liable in
respect of any debt or damage should not be bar to an action, or to the
continuance of an action, against another person who is jointly liable with
him with respect to the debt and damage.

The second rule in Merryweather case is that a tortfeasor who has been held
liable cannot recover contribution from other joint tortfeasors, being unjust,
has also been abolished by the Act of 1935 which, as per section 6(1),
provides that a tortfeasor who has been held liable to pay more than the
share of the damages, can claim contribution from the other joint tortfeasors.

The third unjust rule was created by section 6(1)(b) of the Law Reform Act,
of 1935 that if successive actions are brought, the amount of damages
recoverable shall not, in the aggregate exceed, the amount of damages
awarded in the first judgment. This rule, being unjust has now been repealed
and replaced by section 4 of the civil liability Act, 1978 which now disallows
the only recovery of cost in the subsequent suits, unless the court is of the
opinion that there was a reasonable ground for bringing the action.

Laws in India
In India, there is no statutory law on joint tortfeasors’ liability. As stated
above, in England the Law Reform Act, 1935 and the Civil Liability Act 1978,
have virtually brought the position of joint- tortfeasors on par with the
independent tortfeasors. The question therefore arises, should the Indian
courts follow the common law on joint tortfeasors which was laid down in
Brinsmead and Merryweather cases and was prevailing in England prior to
1935 or the law enacted by the British Parliament in 1935 and 1978? Up to
1942, the courts in India had followed the law as laid down in Brinsmead
and Merryweather cases, but in some cases, the courts expressed doubts
about its applicability in India.

The Supreme court of India, in Khushro S. Gandhi v. Guzdar[4], refused

to follow the common law of England. The fact was that in the suit for
damages for defamation, one of the defendants had tendered an apology to
the plaintiff and the court had passed a compromise decree between the
plaintiff and the defendants who tendered an apology. When the plaintiff
wanted to continue the suit against the other defendants, it was contended
by the defendants that the compromise decree released all other defendants
from their liability. Rejecting the contentions of the defendants, the court
held that in the case of joint tortfeasors, in order to release all joint
tortfeasors, the plaintiff must receive full satisfaction or which the law must
consider as such from a tortfeasor before other joint tortfeasors can rely on
accord and satisfaction. The rule which is in consonance with justice, equity
and good conscience will convince only that type of liability of tortfeasors as
joint and several.

In the light of the above decision, the recent trend of the Indian court is to
follow or adopt common law of England or the law enacted by the British
Parliament if it is in consonance with the principles of equity, justice and
good conscience under the Indian Constitution.

When does the liability of joint tortfeasors

arise?
Liability of joint tortfeasors arises in three circumstances and they are:
Agency

When one person is authorized by another person to do work on his behalf

then any tort committed by that person, the agent then principal who is
authorizing the work will jointly and independently be held liable. When a tort
is committed by an agency then both principal and agent are considered as
joint tortfeasors. When any partner commits tort during the course of the
business, then all other partners are also considered as joint tortfeasors.

Vicarious Liability

When a person is liable for the tort committed by another person under
special circumstances, the liability is joint and both are joint-tortfeasors.
Thus, when a servant commits a tort in the course of employment, the
master can be made liable along with the servant as a joint-tortfeasors.

Joint Action

Where two or more persons join together for common action then all the
persons are jointly and severally liable for the tort committed in the course of
action.

Tortfeasors Defenses
An individual or entity accused of committing a civil mistake basically has
three options for defending their actions. These tortfeasor defenses include:

Consent and Waiver

A tortfeasor (defendant) may defend his position in a civil lawsuit if the

accuser (defendant) has been explicitly warned of the risk or danger of
engaging in the harmful activity. This defense is referred to as the legal
maxim volenti non fit injuries, which means “no injury is done to a
consenting person.” This tortfeasor defense usually relies on signed waivers
of liability

Comparative Negligence

In comparative negligence, tortfeasors may try to defend themselves

by claiming that the complainant contributed to his own damage by
committing acts of recklessness or negligence. A similar concept called
“contributory negligence” often results in the court assigning a percentage of
fault to each party, which ultimately dictates the percentage of financial
responsibility for which each party will be held accountable.
Illegality

Where at the time of the injury, the complainant committed an illegal act for
which he was seeking compensation, the defendant’s liability may be
reduced, or entirely eliminated.

Remedies
The law of contribution says that Y claims to share the liability to X with
others was based on the fact that they were subject to a common liability to
X, whether equally with Y or not. The words in respect of the same damage
emphasized the need for one loss to be allocated among those liable. The
amount of the contribution recoverable from any person shall be fair and
equitable, taking into account the extent of his responsibility for the damage.
The court may exempt any person from the liability to make a contribution or
direct that any person’s contribution amounts to full compensation.

The plaintiff fell down a hole which had been left uncovered by the
negligence of a contractor employed by the defendant to carry out certain
works on the premises on which the plaintiff had come. It was held that the
contractor who was added as a third person to the suit was liable to
contribute one-half of the damages.

Criticism of Joint Tortfeasors

Joint and multiple liability doctrine is criticized because it can result in severe
inequities. For example, a defendant who has only 10 percent responsibility
for an accident that is jointly and severally liable with a defendant who is 90
percent at fault for an accident may have to bear the full amount of damage
financial burden, even though his or her mistake was quite minor.

Conclusion
Joint and multiple liabilities is a system that protects the complainants when
one or more wrongdoers are unable to pay damages owed to the
complainant. However, this can lead to disproportionate and unexpected
results for tortfeasors.
IMPORTANT LEGAL MAXIMS AND IMPORTANT
CASE LAWS TORT LAW
DAMNUM SINE INJURIA
Damaging a person without Injuring them,’ where damage refers to
monetary loss. Comfort, assistance, & health, among other things, are
all important factors to consider. A infringement of basic legal rights is
referred to as injury.

To put it another way, actually hurting someone without violating their

legal rights. Many acts appear to be injurious in nature but are not
regarded wrongful in law, and they’re not actionable and provide no
relief to the victim.

Also, if an individual is exercising his or her legal rights under the law
and in doing so causes harm to other people, the individual would not be
taken into account a wrongdoer.

In The Case Of Gloucester Grammar

School
Fact: The respondent/defendant was a high school principal who opened
a new high school near the plaintiff’s school (Gloucester Grammar
School).A huge number of students transferred to the new high school,
causing the plaintiff to lose money. As a consequence, the plaintiff
decided to sue the defendant.

The question in this case is whether the respondent/defendant should be

held liable for the plaintiff’s loss. Is the case comprehensive enough to
cover all aspects of the Damnum Sine Injuria?

according to the judgement.The defendant cannot be sued because the

plaintiff’s basiclegal rights were not violated, he hardly suffered an
economic loss, and also the defendant had accordance with the law
opened the school.
INJURIA SINE DAMNUM.
Injuring a person without actually causing physical harm,’ where damage
relates to an infringement of legal rights. In other words, a violation of a
person’s basic legal rights without even any real harm to the individual’s
wealth, health, or comfort.

In many cases, an individuals suffering a legitimate injury as a result of

another person’s actions; in these cases, the plaintiff doesn’t want to
prove the physical damage he sustained; instead, he must prove the
lawful injury he sustained. Whenever a legal right is breached, individual
whose legal right has been infringed has the right to file a lawsuit against
by the individual who caused the damage, even if the individual really
hasn’t experienced severe real harm. This is actionable in the legal
system, and the victim will receive compensation.

Ashby V/S White, 1703

Fact: When the plaintiff, Ashby, an ordinary person with a right to vote,
went to exercise his right to vote, he was rejected by the defendant,
despite the fact that the candidate for whom he wanted to vote had won
the general election. The plaintiff, Ashby, filed a lawsuit against the
defendant, alleging that his legal rights had been violated.

The question in this situation is whether the applicant/plaintiff is

empowered to seek restitution if one of his civil human rights is violated
by the acts of someone else.

The court has ruled that the right to vote is a fundamental right, and that
any impediment to exercising that right will result in action and remedy
to the victim.

UBI JUS IBI REMEDIUM

The term jus refers to the legal body or authority, and the term remedium
refers to a person’s right to sue in court. The progress of the maxim is
said to be tort law. The significance of this maxim is ‘where there is a
wrong, there is a redress/remedy,’ and it is one of the necessities of law
of torts. If any damage has been perpetrated or a person’s right has
been infringed, the court would provide a redress/remedy, as per this
legal maxim. As a result, no damage must be permitted to go
unpunished.

These maxims are only appropriate when a legal right exists, and there
must be a wrong action having caused injury to another person in all
circumstances, as that wouldn’t be applicable if there was no injury to an
individual.

Bhim Singh V. State Of Jammu & Kashmir

Fact: Bhim Singh, a member of the Jammu & Kashmir parliamentary
assembly, was unlawfully detained by a police officer and was restrained
from attending the session, as well as not being presented before a
magistrate on time. There was a casting votes session, and his vote was
extremely important, and he was unable to cast a ballot, but the
participant for whom he genuinely wish to cast a ballot won, so he filed a
suit to prevent him from exercising his rights. He filed suit to the S.C
under article 32 after he was dissatisfied with the apex court’s decision.

The question that has been raised is whether monetary compensation is

appropriate. Is Bhim Singh’s detention legal or illegal?

Bhim Singh was illegally detained, according to the court, and he was
deprived of his right to freedom of movement under Article 21, which
allows citizens to go where they want and without even being subjected
to unlawful retraining. As a result, the apex court awarded him
RS.50,000 in damages.

EX TURPI CAUSA NON ORITUR ACTION

This maxim means that “No action can result from an Unlawful Act.”

In some cases, the plaintiff is involved directly in the unlawful activity; as

a result, the plaintiff would be unable to pursue legal action against
some other party and will not get any legal remedy. As the plaintiff is
also engaged in the unlawful activity, this may be used as a defence by
the defendant to explicitly excluded himself from obligation. This
legal maxim is used in the form of defence not only in law of torts but
also used in estate, contract, trust, and restoration.

Holman V Johnson (1775)

Fact: The plaintiff was aware that the defendant’s act to smuggle the tea
to England without reimbursing the legal obligation, and he sold and
delivered the tea to him knowing all of the facts. The Defendant failed to
pay for the tea, so the Claimant filed a lawsuit to recover the cost of the
tea.

The issue at hand is that the seller was knowledgeable of the buyers’
illegal intentions in this case. So, the seller be able to pay back the
value of a product or not?

The plaintiff’s interest in the contract was accomplished by the supply of

goods, according to the court, there was nothing else for the plaintiff to
do. The plaintiff was said to be innocent of any crime.

RES IPSA LOQUITOR

This is among the most important legal maxims in deciding a case’s
judgement; the interpretation of this legal maxim is that ‘things speak for
themselves.’ The Res ipsa loquitor is often used in case of infringement,
where the parts of evidence in a case are still not appropriately
mentioned however the facts are sufficient to prove the defendant’s
negligence. This is one form of evidence that permits a rational fact
finder to decide that another person caused an extraordinary occurrence
that resulted in the plaintiff’s injury and that the defendant was guilty of
negligence in his part

Key Essential Elements:

The existence of negligence: when someone acts negligently, accidents
happen. However, there are a few cases where the plaintiff must prove
negligence.

The defendant is solely responsible: for example, if a doctor leaves a

cotton swab inside the patient’s body during surgery, the plaintiff does
not need to prove that the physician was negligent.

The defendant owes the duty of reasonable care towards the plaintiff.

ACTIO PERSONALIS MORITUR CUM

PERSONA
“A person’s personal right of action dies with him or her,” or, to put it
another way, a person’s rights die with him or her when he or she dies.
The cases cannot be passed on to another person, and the case’s
credibility ended with the person’s death. The first case, in which a
woman died prior to actually paying the charges she obliged to pay for
defaming someone, was brought to light in 1496, and this maxim has
been applied ever since.

Nurani Jamal & Ors. Vs Naram Srinivasa

Rao & Ors.
In this Case, Jaheen Jamal filed a lawsuit against the respondent for an
injury he suffered in a car accident. The plaintiff is brutally murdered in
another car accident while the case is pending.The deceased’s
representative filed a petition, but it was dismissed by the apex Court .

The issue of this case is whether the legal representative can bring the
acts if the dead person is no longer alive or has passed away.

The court stated that an action for a lawful harm sustained by a person
suffers will die with him, but that the above maxim does not apply in the
case of damage or loss to a person’s property.