TORTS AND CONSUMER PROTECTION LAWS

The word “TORT” is derived from the Latin word “TORTUM”, which means ‘twisted’ or ‘ crooked act’
i.e deviation from straight or right conduct.

It is equivalent of the English word “WRONG”

The term ‘tort’ literally means “a wrongful act committed by a person, causing injury or damage to
another, thereby the injured files an action in Civil Court for a remedy

WRONG
PUBLIC WRONG
All acts, which are identified to be punishable under the Indian Penal Code, 1806 are called
offences or Crimes or Public wrongs and tried in Criminal Courts.

PRIVATE WRONG
Apart from all Public wrong rest all are called Private Wrong. Tort is a Civil wrong or Private wrong
and are tried in Civil Court.
1) Commission of an Act
2) Omission or failure of an act

Definition of Tort:
By Salmond

A 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 a Contract or the breach of trust or other merely equitable
obligation.

By Winfield
Tortious liability arises from the breach of a duty primarily fixed by law, this duty is towards persons
generally and its breach is redressable by an action for unliquidated damages

Explanation:-
• In common sense the law of Torts is the branch of law controlling the behavior of the people
in society.

• Its main aim is to define individual’s rights and duties

• It provides pecuniary remedy for violations done against the private rights of an individual.

• The principal aim of the law of Torts is compensation of victims or their dependants.

• The law of Tort is said to be a development of the maxim- “UBI JUS IBI REMEDIUM”

There is no Wrong without a remedy.

ELEMENTS OF TORTS
Every wrongful act is not a tort, to constitute a tort three things must concur-

1. A wrongful act by the defendant

2. Legal damage to the plantiff and

3. The wrongful act must be of such a nature as to give rise to a legal remedy in the form of an
action for damages
KINDS OF TORT:-
1. Actionable per se

Defendant is held liable simply because he does a particular act, even though the plantiff has
suffered not the slightest harm. In case of trespass which is a technical assault which causes no
damage yet it gives a right of action.

2. Actionable per se on proof of damage

In this case the defendant is held liable only, if in consequence of this act damage is indicated the
plaintiff.

1. WRONGFUL ACT
An act is said to be wrongful if it invades the private rights of a person:-

• The right of a good reputation

• The right of bodily safety and freedom

• The right of property

2. LEGAL DAMAGE
Legal damage is not the same as actual damage. Every invasion of the plantiff’s right or unauthorized
interference with his property imports legal damage.

INJURIA SINE DAMNUM (Injury without Damage)

(Infringement of legal right without actual loss or damages)

In all cases of tort there must be an infringement of a right and this is expressed by saying that
INJURIA SINE DAMNO is actionable, whereas DAMNUM SINE INJURIA is not.

Example: trespasser

Leading case law: Ashby vs.White

DAMNUM SINE INJURIA
Damnum sine Injuria is a legal maxim which refers to as damages without injury or damages in which
there is no infringement of any legal right which are vested with the plaintiff. Since no legal right has
been infringed so no action lies in the cases of damnum sine injuria. Damages can be in any form
either in the form of any substantial harm or loss suffered from respect to the money, comfort,
health, etc.

Leading case: Gloucester Grammar school Master case

Special Damage
• Right to support of land as between adjacent landowners
• Menace
• Seduction
• Slander
• Deceit
• Conspiracy or confederation
• Waste
• Negligence
• Nuisance consisting of damage to property
Volenti non fit injuria - Volenti non fit injuria is Latin for “to a willing person, it is not a wrong”.
Definition
Volenti non fit iniuria is a common law doctrine which states that if someone willingly places
themselves in a position where harm might result, knowing that some degree of harm might result,
they are not able to bring a claim against the other party in tort

Meaning
In case the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain. Volenti
nonfit injuria is also called the defense of consent. If there is consent to risk, no suit can arise. No
man can enforce a right that has been voluntarily waived or abandoned.

Case Law
Hall vs brookhands auto racing club
LEGAL REMEDY
A Tort is a Civil injury, but all injuries are not Torts. All wrongful act must have a Remedy of a Civil
action for damages. Where there is no legal remedy there is no wrong.
GENERAL ELEMENTS IN TORTS
1. Act or Omission
2. Voluntary and Involuntary Acts
3. Malice
4. Intension, Motive, Negligence and Recklessness
5. Malfeasance, Misfeasance, Nonfeasance
6. Fault.

PERSONS WHO CANNOT SUE IN TORTS

1. Convict
2. Alien enemy
3. Husband and wife
4. Corporation
5. Highway Authority
6. Unincorporated Authority
7. Trade Unions
8. Insolvent
9. State and its officers
10. Foreign sovereigns
11. Ambassadors
12. Minor
13. Lunatic

LIABILITY ARISING OUT OF SPECIAL RELATIONSHIP

1. Master and Servant
2. Owner and Independent contractor
3. Principal and Agent
4. Company and Agent
5. Firm and its Partner
6. Guardian and ward or father and child
7. Husband and wife
What is Assault?
Assault means laying of hands or an attempt to do a corporal hurt to another, by using some force
without any lawful justification.

An Assault is an attempt or offer to apply force to another’s person (body).

Anyone who intentionally brings any material object into contact with another person, is said to
have applied force to the person of that other.

In Assault the force is not actually applied but only attempt is made.
ELEMENTS OF ASSAULT
1. Threat of Force or violence
2. Reasonable apprehension of such force
3. Defendant’s ability or capability to carry out the threat.

For example:
• Throw stone or water upon a person
• To pull chair under him, whereby he falls
• To strike a person with stick

What is Battery?
The term “battery” literally means beating. But the tort of battery is not beating alone. It is an
intentional application of force to another person without any lawful justification.
Battery is a completion of Assault.

Essential elements:
1. Use of Force
2. The force should be intentional and without lawful justification

For example:
Pushing, stabbing, bringing an object in contact with plantiff’s body.
Movie Theatre case.(Hurt.v Picture theatres Ltd)

What is Mayhem?
Among the personal injuries not causing the death of an individual, the most serious is that known
as ‘Mayhem’
Mayhem is mutation of limb and is so called, when any person is so injured in any part of his body,
that a member used in fighting is rendered useless.
Mayhem is a corporeal hurt, by which a man loses the use of any member proper for his defence in
Fight.
Mayhem is another form of battery and includes all the ingredients of a battery. The only difference
between the two lies in the kind of injuries
If bodily injury is such whereby a person is weakened in fighting or in defending himself or to annoy
his adversary then it is called as mayhem. All other injuries, including least touching would amount
to battery.

For example:
Cutting off or disabling or weakening man’s hand or finger, or striking out his eyes or fore tooth or
castrating him will be Mayhem
Cutting of man’s ear, nose, hair or back teeth it will be a battery.

WHAT IS FALSE IMPRISONMENT OR WRONGFUL CONFINEMENT?

It means total restraint of a person’s liberty for any time however short it may be, without lawful
justification.
The term ‘false imprisonment are somewhat misleading. Hence, the authors of I.P.C substituted it
with new name “Wrongful Confinement”
Every confinement of the person is an imprisonment, whether it be in a prison or in a private house
or in the stocks, or even by forcibly detaining one in the public street
Essential elements:
1. Total restraint or complete deprivation of liberty
2. Without lawful justification.
Remedies:
1. Damages
2. Self-help
3. Writ of Habeas Corpus

MALICIOUS PROSECUTION
Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion
on a criminal charge. In order to succeed the plaintiff must prove that there was a prosecution
without any just and reasonable cause.
Malicious prosecution is the institution against an innocent person of unsuccessful criminal charge,
bankruptcy or liquidation proceedings without reasonable and probable cause and in a malicious
spirit .i.e from an indirect and improper motive and not in furtherance of justice and causing damage
to the plantiff in person, property or reputation.
Malicious prosecution is a careless as well as an ill-intended prosecution. It is a abuse of legal
procedure.

ESSENTIALS: In an action for malicious prosecution, the plantiff has to prove that-
1. He was prosecuted by the defendant- to prove he was prosecuted against false criminal
proceedings
2. The defendant acted without reasonable and probable cause
3. The defendant was actuated with malice
4. Plantiff was acquitted
5. Plantiff suffered damage
MARITAL RIGHTS
Violation of marital rights can take place in three ways-
1. Abduction or enticing or taking away a man’s wife
2. Adultery or criminal conversation with her
3. Physically injuring or otherwise abusing her

PARENTAL RIGHTS
These are the rights to the custody and control of children and to the produce of their labour till they
arrive at the age of 21 in England and 18 in India. For injuries to children a remedy to parents was
developed through a fiction of service due from child to parent. Proof of living under the father’s
roof is sufficient evidence of service.

RIGHT TO SERVICE
Every person who maliciously or with notice, interrupts the relation subsisting between a master and
servant-
1. By procuring the servant to depart from the master’s service,
2. By harbouring and keeping him as a servant after he has quitted it
3. By beating or confining him in such a manner that he is rendered incapable of performing his
work commits a wrongful act.
Case law: Donoghue vs Stevenson

TRESPASS TO IMMOVABLE PROPERTY

Trespass to Land or Immovable Property means unauthorized interference with possession or
enjoyment of land of another. An owner of land can bring an action for trespass against a person
who interferes with his right of exclusive possession.
In trespass, therefore neither force, nor unlawful intention, nor actual damage, nor the breaking of
an enclosure is necessary….Only invasion of private property, be it even so minute, but without
justification.
Trespass may be committed-
• By entering upon the land of the plantiff (Wrongful entry)
• By remaining there
• By doing an act affecting the sole possession of the plantiff
• Trespass by animals
In each case without any justification.

TRESPASS AB INTIO
Trespass ab intio means – trespass from the very beginning.
Where a person enters upon the land of another under authority of law and is subsequently guilty of
an abuse of his authority by an act of misfeasance, his misconduct relates back so as to make his
original entry tortious and he is liable in damages not only for the entry itself, but all the subsequent
acts.
Essentials:-
1. The entry of the defendant must be made by an authority given to him by law or statute, but
not by an individual
2. The defendant must have committed an act of misfeasance, and not an act of non-feasance.
Leading case law
 SIX CARPENTER’S CASE
 DISPOSSESSION
 REVERSIONARY RIGHT

WASTE
It is spoil or destruction of houses, gardens, trees or unlawful damage caused to the immovable
property by the person who was just given lawful possession of that property. Such damage must be
of permanent nature and should cause prejudice to the owner or the reversioner.
NATURAL RIGHTS AND EASEMENTARY RIGHTS
There are certain natural rights and easementary rights which are attached to every land and are
necessary for the peaceful enjoyment of the immovable property. One can enjoy his property in any
way he wants but cannot infringe the legal rights of the other by making such use of his property.

Such natural rights are:-

Right to Right to air
support
Right to water Right of way
Right to light Right of privacy

TRESPASS TO MOVABLE PROPERTY

1. TRESPASS TO GOODS
Trespass to goods means unlawfully disturbing the possession of the goods by seizure or removal or
by a direct act causing damage to the goods. Trespass to goods may take place by taking the goods
from plantiff’s possession. Trespass to goods is actionable per se i.e the plantiff need not prove the
damage he has suffered.
ESSENTIALS:-
• Possession
• Direct interference
• Without lawful justification

TRESPASS AB INTIO
DETENTION
Detention means detaining the goods or chattels of another person without any lawful justification.
This applies where there is wrongful detention of chattel of another person.
Where the plantiff’s goods are wrongfully detained by the defendant, the plantiff can resort to a
remedy by instituting an action for ‘detinue’ for the recovery of goods or its equivalent value, and
the incidental damages, if any.
ESSEENTIAL:-
• Title
• Value
• Identity
• Defendant in possession
• Mode of action

CONVERSION or TROVER
Conversion is where a person finding or having the goods of another in his possession converts them
to his own use, without the consent of the owner and for which the proprietor may maintain an of
conversion or trover against him.
Modes of Conversion:-
• Conversion by taking goods
• Conversion by detention of goods
• Conversion by wrongful delivery of goods
• Conversion by wrongful disposition of goods
• Conversion by wrongful destruction
• Miscellaneous forms of conversion
THE CONSUMER PROTECTION ACT, 2019
An Act to provide for protection of the interests of consumers and for the said purpose, to establish
authorities for timely and effective administration and settlement of consumers' disputes and for
matters connected therewith or incidental thereto.

Important definition
“Complainant" means—
(i) a consumer; or
(ii) any voluntary consumer association registered under any law for the time being in force; or
(iii) the Central Government or any State Government; or
(iv) the Central Authority; or
(v) one or more consumers, where there are numerous consumers having the same interest; or
(vi) in case of death of a consumer, his legal heir or legal representative; or
(vii) in case of a consumer being a minor, his parent or legal guardian;
“Goods"
means every kind of movable property and includes "food" as defined in clause (j) of sub-section (1)
of section 3 of the Food Safety and Standards Act, 2006;

“Consumer" means any person who—

(i) buys any goods for a consideration which has been paid or promised or partly paid and
partly promised, or under any system of deferred payment
(ii) and includes any user of such goods other than the person who buys such goods for
consideration
(iii) but does not include a person who obtains such goods for resale or for any commercial
purpose;
(iv) hires or avails of any service for a consideration
(v) includes any beneficiary of such service other than the person who hires or avails of the
services for consideration
(vi) but does not include a person who avails of such service for any commercial purpose
“Consumer Dispute"
means a dispute where the person against whom a complaint has been made, denies or disputes the
allegations contained in the complaint;
“Deficiency"
means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or under any law for the time being in force or
has been undertaken to be performed by a person in pursuance of a contract or otherwise in
relation to any service and includes—
(i) any act of negligence or omission or commission by such person which causes loss or injury to the
consumer; and (ii) deliberate withholding of relevant information by such person to the consumer;

“Manufacturer" means a person who—

(i) makes any goods or parts thereof; or
(ii) assembles any goods or parts thereof made by others; or
(iii) puts or causes to be put his own mark on any goods made by any other person;
“Service"
means service of any description which is made available to potential users and includes, but not
limited to, the provision of facilities in connection with banking, financing, insurance, transport,
processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing
construction, entertainment, amusement or the purveying of news or other information, but does
not include the rendering of any service free of charge or under a contract of personal service;

Consumer Rights under this Act

1) the right to be protected against the marketing of goods, products or services which are
hazardous to life and property;
2) the right to be informed about the quality, quantity, potency, purity, standard and price of
goods, products or services, as the case may be, so as to protect the consumer against unfair
trade practices;
3) the right to be assured, wherever possible, access to a variety of goods, products or services
at competitive prices
4) the right to be heard and to be assured that consumer's interests will receive due
consideration at appropriate forum;
5) the right to seek redressal against unfair trade practice or restrictive trade practices or
unscrupulous exploitation of consumers;
6) the right to consumer awareness (education);