Definitions And

General Principles Of
Torts Law

Law Of Torts And Consumer Protection

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Tort
MEANING OF TORT
The word Tort is derived from a Latin word 'Tortus' which means 'twisted' or 'crooked act'. In
English it means, 'wrong'. The Expression 'Tort' is of French Origin. The word Tort was derived
from the Latin term Tortum.

"Tort" comes from "Tortum" which means "to twist". What is twisted is the conduct of the
wrong-doer, called the defendant. Such a twist causes a legal injury (a civil wrong) to the
plaintiff and the courts provide for a remedy to him in the law of Torts. The term 'Tort' means
a wrongful act committed by a person, causing injury or damage to another, thereby the
injured party (files) an action in Civil Court for a remedy viz., unliquidated damages or
injunction or restitution of property or other available relief. Unliquidated damages means the
amount of damages to be fixed or determined by the Court.

The person who commits or is guilty of a tort is called a "tortfeasor".

The person who suffered injury or damage by a tortfeasor is called injured or aggrieved.

Tort is a common law term and its equivalent in Civil Law is "Delict".

In general, the victim of a tortious act is the plaintiff in a tort case.

As a general rule, all persons have the capacity to sue and be sued in a tort.

Tort Law provides an avenue for an injured person of a remedy. It does not provide a
guarantee of recovery.

DEFINITION OF TORT
Sir John Salmond: "Tort as a civil wrong for which the remedy is 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."

Prof. P H Winfield: Tortious Liability arises from 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.

Clark and Lindsell: "Tort is a wrong independent of contract for which the appropriate
remedy is a common law action."

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Fraser: A tort is an infringement of a legal right in rem of a private individual, giving a

right of compensation of the suit of the injured party.

Section 2(m) of Limitation Act, 1963: "Tort means a civil wrong which is not exclusively a
breach of contract or breach of trust."

Theories of Tort: Rationale of Tort

There are two theories with regard to the basic principle of liability in the law of torts or tort.
These theories, in fact, explain the rationale of tort. They are:

i) Wider and narrower theory, and ii) Pigeon-hole theory.

i) Wider and narrower theory: According to this theory, all injuries done by one person to
another are torts, unless there is some justification recognized by law. This theory was
propounded by Winfield (1963). According to him, if I injure my neighbor, he can sue me in tort,
whether the wrong happens to have a particular name like assault, battery, deceit or slander,
and I will be liable if I cannot prove lawful justification. This leads to the wider principle that all
unjustifiable harms are tortuous.

ii) Pigeon-hole theory: This theory was proposed by Salmond (1910). According to this theory,
there is a definite number of torts outside which liability in tort does not exist. According to
this theory, I can injure my neighbor as much as I like without fear of his suing me in tort
provided my conduct does not fall under the rubric of assault, deceit, slander or any other
nominate tort. The law of tort consists of a neat set of pigeon holes, each containing a labeled
tort. If the defendant's wrong does not fit any of these pigeon holes he has not committed any
tort.

There is, however, no recognition of either theory. On the whole, if we are asked to express our
preference between the two theories, in the light of recent decisions of competent courts, we
will have to choose the first theory of liability than the subsequent one. Thus, it is a matter of
interpretation of courts so as to select between the two theories. The law of torts has mainly
been developed by courts proceeding from the simple problems of primitive society to those
of our present complex civilization.

Thus "torts are civil wrongs. But all civil wrongs are not torts". To be a tort, the civil wrong
should have three essentials as per Winfield:-
1. The duty is primarily fixed by law. Law provides for legal rights and legal duties. In fact, one
man's rights are another man's duties. Such legal rights are numerous in number; for
example, everyone has a right to his reputation, right to property, right to his person etc. On

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every other man duties are imposed by law, such duties are numerous in number; Ex: Not to
assault others, not to commit Nuisance, not to slander others, not to deceive others, not to
trespass on other's land, not to defame others etc. The violation of such a legal duty gives rise
to a tortious liability.

2. The legal duty is towards persons generally: The legal duty, for example, not to slander
means not only that slander should not be committed against X or Y but in tort the duty is
considered general, i.e., it is against all persons in the world (in rem). Hence, the legal duty not
to assault, libel, trespass etc., is against all persons in the world.

3. Unliquidated Damages: Damages are divided into liquidated and unliquidated. 'Liquidated',
means the amount is pre-estimated and fixed by the parties themselves as in a contract.
Damages are unliquidated when the court, in its discretion, awards compensation taking into
consideration a large number of factors that help to assess the compensation. In fact,
according to Winfield action for unliquidated damages is the basis of tortious liability. It may
be noted that there are other remedies as well. Eg. Self-defense, temporary or permanent
injunction, action for specific restitution of land and chattels, or abatement of nuisance etc.

Essentials of Tort
When the interest is protected, it gives rise to a legal right which in turn gives rise to a
corresponding legal duty. Some legal rights are absolute and its mere violation leads to the
presumption of legal damage. To constitute a tort or civil injury following ingredients are
necessary

(a) A wrongful act or omission on the part of a person;

(b) That wrongful act or omission must result in legal damage to another; and

(c) 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.

(a) Wrongful act or omission

A wrongful act or omission is said to have been committed by a person who has not
performed his duty like a reasonable and prudent person or has broken it intentionally.

In the case, Rogers v. Rajendra Dutt, (1860) 8 MIA 103 (136): 13 Moore PC 209, it was observed
that 'the act complained of should, under the circumstances, be legally wrongful as regards
the party complaining; that is, it must prejudicially affect him in some legal right; merely that it
will, however directly, do him harm in his interest is not enough'.

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Legal right in words of Austin is a 'faculty' which resides in a determinate party or parties by
virtue of a given law, and which avails against a party other than the party or parties in whom it
resides. For example, 'A' erects a wall on his land which obstructs the light to B's house.
Although it is undoubtedly a lawful act to erect a building on one's own land but since the
neighbour has enjoyed uninterrupted light for years, he has acquired the legal right to have
this enjoyment, so erection of construction by A on his own land is an invasion of the right of B
hence, not only damage but it is also unlawful and injurious.

A wrongful act may be a positive act or an omission which can be committed by a person
either negligently or intentionally or even by committing a breach of strict duty.

For instance, if a person drives his car at an excessive speed and with his rash and negligent
driving injures any person on the road or keeps a dog on his land which escapes and bites a
person in the neighbourhood then such act of the said person is a positive wrongful act or
omission and he can be held liable for this.

(b) Legal Damage

Legal damage is second important ingredient in constituting a tort. Damage means the harm
or loss suffered or presumed to be suffered by a person as a result of some wrongful act done
by another person. The sum of money which is awarded by the Court to compensate 'damage'
is called "damages".

On the basis of presumption of damage rights are of two types: (i) absolute and (ii) qualified.

In case of violation of absolute right, the law conclusively presumes damage although the
person wronged may have suffered no pecuniary loss whatsoever. The damage so presumed is
legal damage. In qualified rights, there is no presumption of legal damage and the violation of
such right is actionable only on proof of actual or special damage. In this case injury or wrong
is not complete unless and until actual damage has been caused by violating the rights.

In Ashby v. White, (1703) 2 Lord Rayam 938, the plaintiff's legal right to vote in the
parliamentary election was maliciously violated by the defendant and the defendant was held
liable although the plaintiff not incurred any pecuniary loss. Lord Hott, C.J.; observed-"Every
injury imports a damage, though it does not cost the party one farthing, and it is impossible to
prove the contrary for a damage is not merely pecuniary, but an injury imports a damage,
when a man is thereby hindered of his right".

In another case, Marzetti v. Williams, (1830) 1 B&AD 415, the banker refused to honour the
cheque of the customer although the banker had sufficient funds in his hand. Here the
customer did not sustain any actual loss or damage, the banker was held liable.

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In the words of Ihering - 'Rights are legally protected interests'. Right may be divided into two
types: Private and Public. Private rights are those rights which vest in a person by virtue of law.
Right to reputation, right to bodily safety and freedom, right to property etc. fall under this
category. So, if a person has legal (private) right others have a duty towards him not to violate
his rights. If his legal right is infringed without lawful excuse, he has a right of action against
the person who infringes or violates it.

Public rights are those rights which belong to everyone as common people or it belongs in
common to the members of the State generally. In case of violation of public rights, State takes
action against the offender. For example, public peace, it is a right of everyone and if someone
breaks it then he would be held liable and will be punished under law.

The real significance of a legal damage is illustrated by two maxims, namely, Damnum Sine
Injuria and Injuria Sine Damno.

Damnum sine injuria (damage without injury): There are many acts which though
harmful are not wrongful and give no right of action to a person who suffers from the
effects of such acts. Damage so done and suffered is called Damnum Sine Injuria or
damage without injury. Damage without breach of a legal right will not constitute a tort.

In Gloucester Grammar School Master Case 1410, it had been held that the plaintiff
school master had no right to complain of the opening of a new school. The damage
suffered was mere damnum absque injuria or damage without injury.

Mayor of Bradford v/s Pickles 1895- Corporation of Bradford was supplying water from
its well. Defendant was having adjacent land to the corporation land wherein there was
well. Defendant was willing to sell his land. He approached the mayor of corporation.
Negotiations failed. Defendant dug well in his own land .thereby cutting the underground
supply of water of corporation well this has caused a loss to corporation because there
was no adequate supply of water to the people of corporation. Plaintiff sued Deft for
damages for malice.Held - Defendant is not liable, because defendant's act is not
wrongful as not violated legal right or plaintiff. There is factual malice, ill will digging well
in his own land does not amount to tort.

Injuria sine damno (injury without damage): This means an infringement of a legal
private right without any actual loss or damage. In such a case, the person whose right
has been infringed has a good cause of action. It is not necessary for him to prove any
special damage because every injury imports a damage when a man in hindered of his
right. It is sufficient to show the violation of a right in which case the law will presume
damage. This principle was firmly established by the election case of Ashby v White, in

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which the plaintiff was wrongfully prevented from exercising his vote by the defendant,
returning officers in parliamentary election. The candidate for whom the plaintiff wanted
to give his vote had come out successful in the election. Still the plaintiff brought an
action claiming damages against the defendant for maliciously preventing him from
exercising his statutory right of voting in that election. The plaintiff was allowed damages
by Lord Holt saying that there was the infringement of a legal right vested in the plaintiff.

Legal Remedy
In tort, the wrongful act must come under the category of wrongs for which the remedy is a
civil action for damages. Legal remedy is the third essential for an action in tort. A tort is a civil
injury, but all civil injuries are not torts. The essential remedy for a tort is an action for
damages but there are other remedies also for example injunction may be obtained in
addition to damages in certain cases of wrongs or an action by the plaintiff himself without
going to the court i.e. self-help.

Ubi Jus Ibi Remedium

The law of torts has developed from the maxim "ubi jus ibi remedium" i.e. there is no wrong
without a remedy, Jus, means 'the legal authority to do or to demand something' and
'remedium' signifies the right of action or the means given by law for the recovery or assertion
of a right. We can also look upon this maxim which says-'Where there is a right, there is a
remedy'. In the case, Ashby v. White, Holt, C.J., laid down that 'if the plaintiff has a right he
must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in
the exercise of enjoyment of it, and indeed it is a vain thing to imagine a right without a
remedy for want of right and want of remedy are reciprocal'.

Differences between crime and tort:

Being a civil injury, tort differs from crime in all respects in which a civil remedy differs
from a criminal one. There are, thus, certain essential marks of difference between crime
and tort such as the following.

Tort is an infringement or deprivation of private or civil rights belonging to individuals,

whereas crime is a breach of public rights and duties which affect the whole community.

In tort, the wrong doer has to compensate the injured party, whereas in crime, he is
punished by the State in the interest of the society.

In tort, the action is brought about by the injured party, whereas, in crime the
proceedings are conducted in the name of the state.

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Damages, in tort, are paid for compensating the injured, and, in crime, it is paid out of the
fine which is paid as a part of punishment. Thus, the primary purpose of awarding fine in
a criminal prosecution is punitive rather than compensatory.

The damages in tort are unliquidated and, in crime, they are liquidated.

Differences Between Contract and Tort Law

A distinct difference between contract and tort laws lies in the issue of consent. In
contract law, both parties must enter an agreement knowingly and without coercion.
Each party must consent to the contract and its outcomes. In tort law, the interaction
between the parties is not based on consent. Usually, torts occur by the intrusion of one
party to another that results in some type of harm.

Courts will award damages in a contract case to restore the injured party to where they
were before the breach occurred. In a tort case, a court will award damages to
compensate the victim for their loss.

Another difference between the two branches of law, is that punitive damages are
sometimes awarded in tort cases, whereas they are rarely awarded in breach of contract
cases.

Can a Person File a Contract Claim and a Tort Claim in the Same Lawsuit?
In some cases, a tort claim and contract claim will be included within the same lawsuit.
However, due to the differences between torts and contracts, these cases are not as common
as those where both claims are filed separately.

If you have a case where there was a breach of duty in a contract, and a tort claim is tightly
related to the subject matter of the contract, it may be possible to file the claims concurrently.

Difference between Tort and Quasi-Contract:

Quasi contract cover those situations where a person is held liable to another without any
agreement, for money or benefit received by him to which the other person is better entitled.
According to the Orthodox view the judicial basis for the obligation under a quasi contract is
the existence of a hypothetical contract which is implied by law. But the Radical view is that the
obligation in a quasi contract is sui generis and its basis is prevention of unjust enrichment.

Quasi contract differs from tort in that:

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There is no duty owed to persons for the duty to repay money or benefit received unlike
tort, where there is a duty imposed.

In quasi contract the damages recoverable are liquidated damages, and not unliquidated
damages as in tort.

Quasi contracts resembles tort and differs from contracts in one aspect. The obligation in
quasi contract and in tort is imposed by law and not under any agreement. In yet another
dimension quasi contract differs from both tort and contract. If, for example, A pays a
sum of money by mistake to B. in Quasi contract, B is under no duty not to accept the
money and there is only a secondary duty to return it. While in both tort and contract,
there is a primary duty the breach of which gives rise to remedial duty to pay
compensation.

Difference between tort and Breach of Trust

Trust is a relationship which is established through mutual understanding. It has got some
similarities with that of law of contracts but forms a different branch from contract as well as
tort.

Damages claimed in tort are unliquidated while these are liquidated in case of the breach
of trust.

In breach of trust compensation is not termed as damages.

Whole law of trusts is regarded as a division of the law of property which is fairly
detachable from other parts of law.

Motive and malice explained:

The general rule is that motive is irrelevant in torts. Motive denotes the reason for the conduct
of an individual. Thus, if the act is unlawful then mere good motive will not exonerate it. If the
conduct is lawful then a bad motive will not make him liable.

The fact that motive is irrelevant is evident from the leading case: Mayor of Bradford
Corporation V. Pickles. Here, the corporation refused to purchase the land which belonged to
pickles, for the purpose of the water supply scheme. In revenge, he sank a shaft on his land. In
consequence, the water of the corporation became discolored and diminished. The
corporation sued pickles. It was held that pickles were not liable. The judge said "we are to
take the man's act into consideration, not the motive behind it".

Exceptions to the rule that Motive is irrelevant:

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i) Malicious prosecution,

ii) Conspiracy.

iii) Deceit or Negligent Misstatements.

iv) Some circumstances in Nuisance. (Christie V. Davey)

In the context of tort law, the concepts of "malice in law" and "malice in fact" are important in
understanding the intent and behavior behind wrongful action.

Malice in Fact (Actual Malice)

Definition: Malice in fact, also known as actual malice, refers to actions performed by an
individual with the intent to harm or with a reckless disregard for the rights of others. It
implies a direct intention to injure someone.

Application: This concept is often applied in cases involving defamation, where the
plaintiff must prove that the defendant acted with actual malice if the plaintiff is a public
figure. Actual malice means knowing the statement was false or acting with reckless
disregard for the statement's truth or falsity.

Characteristics:

Personal ill will or spite towards the victim.

Deliberate intent to cause harm.

Consciousness of wrongdoing.

Malice in Law (Legal Malice)

Definition: Malice in law, also known as legal malice or implied malice, does not require
proof of the defendant’s intention to harm. It refers to wrongful acts done intentionally
without just cause or excuse. If a person's rights are infringed upon, the malice can be
presumed from the act itself.

Application: This concept is commonly applied in actions for strict liability torts or in
certain trespass cases. Legal malice is inferred from the nature of the act, without
needing to prove the actual intent to harm.

Characteristics:

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Not based on personal ill will but on the wrongful nature of the act itself.

Intent to perform the act that leads to harm is sufficient, regardless of desire to
cause the harm.

The law presumes malice from the deliberate commission of a wrongful act.

Key Differences

Intent: Malice in fact centers around the actual intent or recklessness of causing harm,
while malice in law infers maliciousness solely from the wrongful action without the
necessity to prove intent to harm.

Application: Malice in fact is pivotal in cases like defamation towards public figures,
where proving harmful intent is necessary. Malice in law applies to scenarios where the
act itself carries legal presumptions of wrongfulness, like strict liability cases, without
delving into the perpetrator's personal motivations.

Proof: Proving malice in fact demands evidence of specific harmful intent or reckless
disregard, making it more complex. In contrast, malice in law operates on the premise
that certain acts are inherently wrong and malicious intent is automatically inferred.

Understanding the distinction between malice in fact and malice in law is crucial for navigating
tort cases effectively, especially in determining the kind of malice that underpins the wrongful
acts and the requisite proofs for each.

Malice-in-law Malice-in-fact

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A wrongful act done intentionally ill-will, spite or hatred, then we call it

without just cause or excuse, it can malice in fact. It is generally relevant

be implied in every case where a in the torts of defamation on a

person has inflicted injury upon privileged occasion, malicious

another in contravention of the law, prosecution, injurious falsehood,

without just cause or excuse. deceit and conspiracy.

Misfeasance Non feasance and Malfeasance:

Misfeasance means doing a lawful act in an improper manner. (Cases in master and
servant).

Nonfeasance means not performing or omitting to do that which must be legally done
(cases of negligence).

Malfeasance means doing an unlawful act e.g. trespasses.

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 Remoteness Of
Damages And
Principles Of Strict
And Absolute
Liability

Law Of Torts And Consumer Protection

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Strict Liability
The principle of strict liability evolved in the case of Rylands v Fletcher (1868) L.R. 3 H.L. 330. In
the year 1868, the principle of strict liability states that any person who keeps hazardous
substances on his premises will be held responsible if such substances escape the premises
and causes any damage. Going into the facts of the case, F had a mill on his land, and to power
the mill, F built a reservoir on his land. Due to some accident, the water from the reservoir
flooded the coal mines owned by R. Subsequently, R filed a suit against F. The Court held that
the defendant built the reservoir at his risk, and in course of it, if any accident happens then
the defendant will be liable for the accident and escape of the material.

Going by the principle laid in this case, it can be said that if a person brings on his land and
keeps some dangerous thing, and such a thing is likely to cause some damage if it escapes
then such person will be answerable for the damaged caused. The person from whose
property such substance escaped will be held accountable even when he hasn’t been negligent
in keeping the substance in his premises. The liability is imposed on him not because there is
any negligence on his part, but the substance kept on his premises is hazardous and
dangerous. Based on this judicial pronouncement, the concept of strict liability came into
being. There are some essential conditions which should be fulfilled to categorize a liability
under the head of strict liability.

Essentials of Strict Liability

Dangerous Substances: The defendant will be held strictly liable only if a “dangerous”
substances escapes from his premises.

For the purpose of imposing strict liability, a dangerous substance can be defined as any
substance which will cause some mischief or harm if it escapes. Things like explosives, toxic
gasses, electricity, etc. can be termed as dangerous things.

Escape: One more essential condition to make the defendant strictly liable is that the material
should escape from the premises and shouldn’t be within the reach of the defendant after its
escape.

For instance, the defendant has some poisonous plant on his property. Leaves from the plant
enter the property of the plaintiff and is eaten by his cattle, who as a result die. The defendant
will be liable for the loss. But on the other hand, if the cattle belonging to the plaintiff enter the
premises of the defendant and eats the poisonous leaves and die, the defendant would not be
liable. In the judicial pronouncement of Reads v. Lyons & Co. [1947] AC 156 House of Lords, it
was held that if there is no escape, the defendant cannot be held liable.

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Non-natural Use: To constitute a strict liability, there should be a non-natural use of the land.
In the case of Rylands v. Fletcher, the water collected in the reservoir was considered to be a
non-natural use of the land. Storage of water for domestic use is considered to be natural use.
But storing water for the purpose of energizing a mill was considered non-natural by the
Court. When the term “non-natural” is to be considered, it should be kept in mind that there
must be some special use which increases the danger to others. Supply of cooking gas
through the pipeline, electric wiring in a house, etc. is considered to be the natural use of land.
For instance, if the defendant lights up a fire in his fireplace and a spark escapes and causes a
fire, the defendant will not be held liable as it was a natural use of the land.

These three condition needs to be satisfied simultaneously to constitute a strict liability.

Exception to the Rule of Strict Liability

There are certain exceptions to the rule of strict liability, which are-

Plaintiff’s Fault: If the plaintiff is at fault and any damage is caused, the defendant wouldn’t be
held liable, as the plaintiff himself came in contact with the dangerous thing.

In the judicial pronouncement of Ponting v Noakes (1849) 2 QB 281, the plaintiff’s horse died
after it entered the property of the defendant and ate some poisonous leaves. The Court held
that it was a wrongful intrusion, and the defendant was not to be held strictly liable for such
loss.

Act of God: The phrase “act of God” can be defined as an event which is beyond the control of
any human agency. Such acts happen exclusively due to natural reasons and cannot be
prevented even while exercising caution and foresight. The defendant wouldn’t be liable for
the loss if the dangerous substance escaped because of some unforeseen and natural event
which couldn’t have been controlled in any manner.

Act of the Third Party: The rule also doesn’t apply when the damage is caused due to the act
of a third party. The third party means that the person is neither the servant of the defendant,
nor the defendant has any contract with them or control over their work. But where the acts
of the third party can be foreseen, the defendant must take due care. Otherwise, he will be
held responsible.

For instance, in the case of Box v Jubb, where the reservoir of the defendant overflowed
because a third party emptied his drain through the defendant’s reservoir, the Court held that
the defendant wouldn’t be liable.

Consent of the Plaintiff: This exception follows the principle of violenti non fit injuria.

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For instance, if A and B are neighbors, and they share the same water source which is situated
on the land of A, and if the water escapes and causes damage to B, he can’t claim damages, as
A wouldn’t be liable for the damage.

Absolute Liability
The rule of absolute liability, in simple words, can be defined as the rule of strict liability minus
the exceptions. In India, the rule of absolute liability evolved in the case of MC Mehta v Union
of IndiaA.I.R. 1987 S.C. 1086: 1987 ACJ 386. This is one of the most landmark judgment which
relates to the concept of absolute liability.

The facts of the case are that some oleum gas leaked in a particular area in Delhi from
industry. Due to the leakage, many people were affected. The Apex Court then evolved the rule
of absolute liability on the rule of strict liability and stated that the defendant would be liable
for the damage caused without considering the exceptions to the strict liability rule.

According to the rule of absolute liability, if any person is engaged in an inherently dangerous
or hazardous activity, and if any harm is caused to any person due to any accident which
occurred during carrying out such inherently dangerous and hazardous activity, then the
person who is carrying out such activity will be held absolutely liable. The exception to the
strict liability rule also wouldn’t be considered. The rule laid down in the case of MC Mehta v
UOI was also followed by the Supreme Court while deciding the case of Bhopal Gas Tragedy
case. To ensure that victims of such accidents get quick relief through insurance, the Indian
Legislature passed the Public Liability Insurance Act in the year 1991.

The Public Liability Insurance Act, 1991

This act was introduced with the aim of providing immediate relief to people who are victims
of accidents in which handling of hazardous substances is involved. The main focus of the Act
is to create a public liability insurance fund which can be used to compensate the victims.

The Act states that any person who is carrying out inherently dangerous or hazardous
activities should have insurances and policies in place where he will be insured against liability
to provide compensation to the victims in case any accident takes place, and some injury
occurs. This liability is based on the principle of “no fault liability” or in other words, the rule of
strict liability and absolute liability. Inherently dangerous or hazardous substance covers under
its scope any mixture, preparation or substance which because of its properties can cause
serious harm to human beings, animals, plants, property or the environment. If any substance
is inherently dangerous or hazardous due to its handling also, then also the absolute liability
of the defendant arises.

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The rule of strict liability and absolute liability can be seen as exceptions. A person is made
liable only when he is at fault. But the principle governing these two rules is that a person can
be made liable even without his fault. This is known as the principle of “no fault liability.” Under
these rules, the liable person may not have done the act, but he’ll still be responsible for the
damage caused due to the acts. In the case of strict liability, there are some exceptions where
the defendant wouldn’t be made liable. But in the case of absolute liability, no exceptions are
provided to the defendant. The defendant will be made liable under the strict liability rule no
matter what.

Remoteness of damages
The general principle of law requires that once damage is caused by a wrongful act, liabilities
have to be assigned. But, as many cases have shown, assigning liabilities is not always a simple
task at hand.

Once a wrongful act has been committed (tort), it can have multiple consequences. The
consequences can have further consequences. These ‘consequences of consequences’ can
become a long chain and at times the problem of the liability of the defendant comes up. The
question that this particular topic deals with is “How far can the defendant’s liability be
stretched for the ‘consequences of consequences’ of the defendant’s tort?”

In this simple example, we see that the defendant who was a cyclist negligently hits a
pedestrian. Incidentally, the pedestrian happened to be carrying a bomb. And due to the
negligence of the defendant, the pedestrian falls and the said bomb explodes, resulting in the
death of that pedestrian. Now, due to the explosion of the bomb, a nearby building catches fire
and five of its residents die. As a result of the fire, the building collapses and nearby structures
are destroyed, resulting in 20 more deaths. Further, the destruction of nearby shops results in
pecuniary losses to the shop owners.

Although one would tend to easily dismiss this example as too far-fetched, it is not difficult to
see that similar cases resembling this particular domino effect can exist and that their
existence can create questions of legal importance.

In the above example itself, we can see how a tort of negligence committed by the defendant
can result in consequences that were neither intended by the defendant nor comprehended
by him beforehand. Such a situation creates question for assigning blame. Even if the Court
were of the opinion that the defendant was to be blamed for the death of the pedestrian,
would the Court also unhesitatingly place the same amount of the blame on the defendant for
the death of the other 25 people?

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The problem is also explained by Lord Wright, to some extent, in the case of Liesbosch Dredger
v. S.S. Edison [1993] AC 449:

“The Law cannot take account of everything that follows a wrongful act; it regards some
subsequent matters as outside the scope of its selection, because it was infinite of the law to
judge the causes of causes, or consequences of consequences. In the varied web of affairs, the
law must abstract some consequences as relevant, not perhaps on grounds of pure logic but
simply for practical reasons.”

To answer such questions, jurists propose that a defendant should be made responsible only
for the consequences which were proximate (and not remote) consequences of the
defendant’s wrongful act.

Proximate and Remote Damage

Just as Lord Wright has pointed it out, we have to draw a line for practical purposes. Now, the
question that arises is where exactly is this line to be drawn?

To answer this question, we look at a test known as ‘the test of remoteness’. With this test, we
check if the damage is ‘too remote a consequence’ of the wrongful act or not?

Few Illustrations for Proximate and Remote Damage

Scott v. Shepherd [1773] 2 WM B1 892 (The Squib Case)

In this case, a person A threw a lighted squib into a crowd. The squib fell on a person B. B, in
order to prevent injury to himself, threw that squib further. It landed on another person C, who
in turn threw it further and it finally exploded on a person D, thereby injuring him. As a result
of the explosion, D lost one of his eyes.

In this case, A was held liable to D. Although one would say that his act was ‘the farthest from
the injury to D’, his act was held to be a proximate cause of the injury to D.

Haynes v. Harwood (1935) 1 K.B. 146.

In this historically famous case, the servants of the defendant, owing to their negligence
abandoned a horse van on a crowded street. The street had children and women. Some
children pelted stones at the horses, as a result of which the horses bolted and started posing
a threat to the safety of the people in the street. In order to stop the horses and to rescue the
women and children, a policeman (the plaintiff here) suffered injuries himself.

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In a lawsuit brought by the plaintiff against the defendant, one defence pleaded was that of
novus actus interveniens (remoteness of consequences).

Again, in this case, the Court held that novus actus interveniens was not a valid defence and
that the negligent act of the defendant’s servants leaving the horse van unattended as the
proximate cause of the injury suffered by the plaintiff.

Lynch v. Nurdin (1841) 1 Q.B. 29.

This case is similar to the previous one to a certain degree. Here, the defendant left his horse-
cart unattended on a road. Some children began playing with the said horse-cart. One child sat
on the cart (the plaintiff) and another set the horse in motion. Consequently, the child suffered
damage and an action was brought.

In this case too the defence of novus actus interveniens was pleaded. But again, it was held by
the Court that the injury to the plaintiff was a proximate consequence of the defendant’s act
and hence he would be held liable to the plaintiff.

Two Tests of Remoteness

Now that we have seen that the law deems a person liable for the injuries caused which were
proximate consequences of that person’s act, one might ask about the parameters on which
the Court decides which act is a proximate one and which one remote.

To answer this question, we see two tests of remoteness during the course of legal history:

Test of reasonable foresight; and

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 (1850) 5
Ex. 240 and Greenland v. Chaplin(1850) 5 Ex. 243, 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,

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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 (1921) 3 K.B. 560.

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 (1961) A.C. 388., also popularly known as the Wagon Mound
Case.

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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 (1963) AC 837.

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.

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Doughty v. Turner Manufacturing Co. Ltd (1964) 1 Q.B. 518

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 (1971) 1 Q.B. 337
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.

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 General Defences
And Tort Of
Negligence

Law Of Torts And Consumer Protection

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General Defences of Tort

Even when a plaintiff provides proof for the existence of all the essential elements of a tort, it is
possible in some cases for the defendant to take certain defence which can remove his liability.
These defences are nothing but specific situation or circumstances in which a defendant is
given a waiver for his tortuous action.

These are as follows:

1. Volenti non fit Injuria

When person consents for infliction of harm upon himself, he has no remedy for that in Tort.
That means, if a person has consented to do something or has given permission to another to
do certain thing, and if he is injured because of that, he cannot claim damages. Such consent
may be implied or express.

In Wooldridge v Sumner (1963), it was held that the defendants had taken proper care during
the horse show and the plaintiff, by being in the show, agreed to take the risk of such an
accident that happened to him. The defendants were not held liable.

Exceptions to this defence: In the following conditions, this defence cannot be taken even if
the plaintiff has consented.

i) Rescue Conditions: When the plaintiff suffers injury while saving someone.
For example, A's horse is out of control and is galloping towards a busy street. B realizes that if
the horse reaches the street it will hurt many people and so he bravely goes and control's the
horse. He is injured in doing so and Sue's A. Here, A cannot take the defence that B did that act
upon his own consent. It is considered as a just action in public interest and the society should
reward it instead of preventing him from getting compensation.

ii) Unfair Contract Terms: Where the terms of a contract are unfair, the defendant cannot take
this defence. For example, even if a laundry, by contract, absolves itself of all liability for
damage to clothes, a person can claim compensation because the contract is unfair to the
consumers.

2. Plaintiff the Wrongdoer

A person cannot take advantage of his own wrong. This principle has been in use since long
time as it is just and equitable. This defence exists only if the injury happens because of a
wrongful act of the plaintiff. It does not exist if the injury happens because of a wrongful act of

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the defendant even if the plaintiff was doing a wrongful but unrelated act. For example, in Bird
v Holbrook (1828), the plaintiff was trespassing on the defendant's property and he was hurt
due to a spring gun. The defendant had put spring guns without any notice and was thus held
liable.

3. Inevitable Accident

Inevitable accident means an unexpected occurrence of something that could not have been
predicted or prevented. In such a case, the defendants will not be liable if they had no
intention to cause it and if the plaintiff is injured because of it. For example, in Stanley v Powell(
1891), the plaintiff and the defendant were members of a shooting party. The defendant shot a
bird, but the bullet ricocheted off a tree and hit the plaintiff. The defendant was not held liable
because it was an accident and the defendant did not intent it and could neither have
prevented it.

4. Act of God

An act of God, in a legal sense, is an extraordinary occurrence of circumstance which could not
have been predicted or prevented and happens because of natural causes. For example, no
body can predict, prevent, or protect from a natural disaster such as an earthquake or flood.
Thus, it is unreasonable to expect a person to be liable for damages caused by such acts of
God. There are two essential conditions for this defence; the event must be due to a natural
cause, and it must be extraordinary or some thing that could not have been anticipated or
expected.

5. Private Defence
As per Section 96 of IPC, nothing is an offence that is done in exercise of the I right of private
defence. Thus, law permits the use of reasonable and necessary force in preventing harm to
human body or property and injuries caused by the use of such force are not actionable.
However, the force must be reasoilable and not excessive.

In Bird v Hollbrook (1828), the defendant used spring guns in his property without notice. It
was held that he used excessive force and so was liable for plaintiff's injury even though the
plaintiff was trespassing on his property.

6. Mistake
Generally, mistake is not a valid defence against an action of tort. Thus, hurting I a person
under the mistaken belief will not be defensible. However, in certain cases, it could be a valid
defence. For example, in the case of malicious prosecution, it is necessary to prove that the

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defendant acted maliciously and without a reasonable cause. If the prosecution was done only
by mistake, it is not actionable. Further, honest belief in the truth of a statement is a defence
against an action for deceit.

7. Necessity
'Salus Populi Supreme Lex' means, welfare of the people is the supreme law. If the act causing
damage is done to prevent a greater harm, it is excusable. The Latin phrase “necessitas inducit
privilegium quod jura private” which highlights this defence literally translates to necessity
induces a privilege because of a private right.

For example, a ship ran over a small boat hurting 2 people in order to prevent collision with
another ship which would have hurt hundreds of people is excusable. Thus, in Leigh v
Gladstone (1909, p.139), force-feeding of a hunger striking prisoner to save her was held to be
a good defence to an action for battery.

8. Statutory Authority
An act that is approved by the legislature or is done upon the direction of the legislature is
excused from tortuous liability even though in normal circumstances it would have been a tort.
When an act is done under the authority of an Act, it is a complete defence and the injured
party has no remedy except that is prescribed by the statute.

In Kasturi Lal v. State of UP, the plaintiff had been arrested by the police officers on a suspicion
of possessing stolen property. On a search of his person, a large quantity of gold was found
and was seized under the provisions of the Code of Criminal Procedure. Ultimately, he was
released, but the gold was not returned as the Head Constable in charge of the malkhana
(wherein the said gold was stored) had absconded with the gold. The plaintiff thereupon
brought a suit against the State of UP for damages for the loss caused to him. It was found by
the courts below, that the concerned police officers had failed to take the requisite care of the
gold seized from the plaintiff, as provided by the UP Police Regulations. When the matter was
taken to the Supreme Court, the court found, on an appreciation of the relevant evidence, that
the police officers were negligent in dealing with the plaintiff’s property and also, that they had
also not complied with the provisions of the UP Police Regulations in that behalf. In spite of the
said holding, the Supreme Court rejected the plaintiff’s claim, on the ground that “the act of
negligence was committed by the police officers while dealing with the property of Ralia Ram,
which they had seized in exercise of their statutory powers. The power to arrest a person, to
search him and to seize property found with him, are powers conferred on the specified
officers by statute and in the last analysis, they are powers which can be properly categorized
as sovereign powers; and so, there is no difficulty in holding that the act which gave rise to the

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present claim for damages has been committed by the employee of the respondent during the
course of its employment; but the employment in question being of the category which can
claim the special characteristic of sovereign power, the claim cannot be sustained.”

Absolute, mandatory or imperative authority.

Some powers which are conferred by the legislature for a particular thing to be done
regardless of whether it inflicts an injury upon another person, it is called as absolute,
mandatory or imperative authority. In case of harm, it is being covered by the authority e.g., to
construct the railway line, there may be need of acquiring private land. But, in such cases the
land owner will be suitably compensated. But, running a train without causing noise or
vibration is impossible and for such complaint there is no remedy.

If the legislature has authorized certain act and the authority given is imperative, no action
would lie against the person who has the statutory authority to do the act, provided it is done
without negligence. This statutory authority not only extends to the act itself, but to all its
necessary consequences.

In cases viz. Nirmal Chandra Sanyal v. Municipal Commissioner of Patna, 1936 : AIR 1936 Cal 707
and Bhogilal v. Ahmedabad Municipality, 1936 : AIR 1936 Cal 707, it was held-"When the
Legislature has authorized an act, it must be deemed also to have authorized by necessary
implication all inevitable results of that act."

Negligence
When there is no intention of causing harm to the person complained of - it is called as
negligence. Carelessness on the part of defendant constitutes negligence.

If, there is an unreasonable conduct followed by harm to another-it gives rise to liability for
negligence. There are two theories pertaining to negligence have been given in the law of tort-

Subjective Theory-
As per this theory, negligence denotes 'state of mind'. It treats negligence as a specific tort and
sets at rest all the controversy over this point. It has got support from Austin, Salmond and
Winfield.

Objective Theory-
Negligence is a type of conduct and not a particular state of mind. It has been recognised by
the House of Lords in Donoghue v. Stevenson, 1932 AC 562, where negligence has been
treated as a specific tort.

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When deciding on a verdict in a negligence case, juries are instructed to compare the facts,
testimony, and evidence in determining whether the following elements were satisfied:

1. Duty
The concept of 'duty' forms the foundation of any negligence case. Essentially, it establishes
that the defendant owed a certain standard of care to the plaintiff. This standard varies
depending on the relationship between the parties and the situation.

Case Law Illustration: In Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928), the court
elaborated on the principle of foreseeability in determining duty. The case highlighted that
duty is not universally owed to all but rather to those who could be foreseeably harmed by
one’s actions.

2. Breach of Duty
Once a duty is established, the plaintiff must then demonstrate that the defendant breached
this duty by failing to act according to the standard of care required.

Case Law Illustration: In Blyth v. Birmingham Waterworks Co., (1856) 11 Ex Ch 781, the court
held that a breach occurs when one does not act with the reasonable prudence that the
situation demands. The case involved a water company that failed to properly maintain its
infrastructure, leading to property damage during a frost.

3. Cause in Fact
Also known as "but-for" causation, this element requires the plaintiff to show that the harm
would not have occurred but for the defendant's breach of duty.

Case Law Illustration: In Barnett v. Chelsea & Kensington Hospital, [1969] 1 QB 428, it was
established that the 'but-for' test is crucial to determining causation. Despite the hospital's
negligence, the victim's cause of death was not directly due to the failure to provide treatment,
illustrating the importance of this causation link.

4. Proximate Cause
Proximate cause limits the defendant's liability to harms that are a foreseeable consequence
of their actions. It excludes damages that are too remote or unforeseeable.

Case Law Illustration: The Wagon Mound (No. 1), [1961] AC 388, case is a landmark for
proximate cause. It held that the defendant could only be held liable for damages that were

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reasonably foreseeable. The unforeseeable extent of the fire damage, caused by oil negligently
spilled into the harbor, was not within the scope of foreseeable harm.

5. Damages
The final element requires proving actual damage or harm that resulted from the breach of
duty. This harm can be physical, financial, emotional, etc., but it must be legally recognizable.

Case Law Illustration: In Lieberman v. Riverside Memorial Chapel, 225 A.D.2d 283 (N.Y. App. Div.
1996), the court emphasized that without demonstrable damages directly resulting from the
negligence, a negligence claim cannot stand. The case involved emotional distress claims
without accompanying physical harm, underscoring the importance of concrete damages.

The law of negligence serves as a pivotal mechanism for the allocation of responsibility in
cases of harm. Through the prism of these five elemental frameworks—duty, breach, cause in
fact, proximate cause, and damages—courts navigate the complexities of each case to
adjudicate liability appropriately. The landmark cases mentioned herein serve as essential
markers guiding practitioners and scholars in understanding and applying these principles.
The dynamic interpretation of these elements ensures that negligence law evolves in tandem
with societal changes, affording a measure of justice to those harmed by the carelessness of
others.

Burden of proof in an action for negligence.

In the case of negligence, the onus is on plaintiff to prove the action of defendant due to which
he has sustained injuries. He must prove the act or omission of the defendant so that the
defendant could be held liable for damages. The act or omission must also be the proximate
cause of damage to the plaintiff. Where the balance is even as to which part is in fault, the one
who relies on the negligence of other is bound to turn the scale. In the case K.C. Kumaran v.
Vallabh Das Vasanji,1969 : AIR 1969 Ker 9, it was held that the initial burden of making out a
prima facie case of negligence against the defendant lies heavily on the plaintiff and once this
onus is discharged, it will be for the defendant to prove contributory negligence or that the
incident was the result of inevitable accident.

Contributory Negligence and Legal Doctrines in Negligence Law

I. Introduction to Contributory Negligence
Contributory Negligence serves as a defensive argument in negligence lawsuits. It relies on the
principle that though the defendant may have indeed been negligent, the plaintiff's negligence
contributed to the harm, rendering them incapable of seeking advantage from their own

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negligence. This concept is encapsulated by the maxim "in pari delicto potior est conditio
defendatis," suggesting that when both parties share blame, the defendant's position is
preferred. Both parties are considered co-authors of the injury, placing the onus on the
defendant to prove the plaintiff's contributory negligence.

II. Application of Contributory Negligence

The evaluative question in negligence claims centers around the cause of the accident:

a) Davis V. Mann embodies the Rule of Last Opportunity. It exemplifies that if the defendant
had the final chance to avert the mishap but failed, they bear the liability despite the presence
of negligence on part of the plaintiff.

b) Butterfield V. Forrestor establishes that plaintiffs cannot recover damages if their

negligence contributed to the accident, irrespective of the defendant's negligence. c) The
verdict changes when both parties are found negligent; plaintiffs are generally barred from
recovery.

III. Historical Modifications and Legal Development

1. Expanding on Davies V. Mann, the British India Electric Co. V. Loach further refined the
Rule of Last Opportunity to include constructive situations. The case illustrated that the
defendant's failure to maintain proper equipment (brakes, in this scenario), rendering
them unable to prevent the accident, led to their liability.

2. Recognizing the complications inherent in contributory negligence, the Law Reforms Act
1945 was enacted in England. It posited that where both plaintiff and defendant are at
fault, the plaintiff's claim isn't outright defeated but proportionately reduced,
considering what is deemed just and equitable by the court.

IV. Alternate Danger Doctrine: Jones V. Boyce

Introducing the dilemma principle, this doctrine addresses situations where the plaintiff,
placed in imminent danger through the defendant's misconduct, injures themselves in the
process of averting the danger. This case substantiates that defendants are liable when their
actions force plaintiffs into harming situations, offering a nuanced approach to assessing
negligence that accounts for the instinctual human response to imminent threats.

In this case Jones V. Boyce, the plaintiff was a passenger in defendant's coach. The driver was
driving the coach so negligently that the plaintiff saw imminent danger to his life. In course of
saving himself from the danger, he jumped off the coach and his leg was broken. After that the

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coach stopped. It was the defendant's plea that had the plaintiff remained in his seat, he would
not have suffered much harm. The Court was of the view that the plaintiff's act was the
demand of the hour and he was justified. Lord Ellenborough observed that "to enable the
plaintiff to sustain the action it is not necessary that he should have been thrown off the coach,
it is sufficient if he was placed by the misconduct of the defendant in such a situation as
obliged him to adopt the alternative of a dangerous leap or to remain at certain peril; if that
position was occasioned by the default of the defendant, the action may be supported".

Contemporary Legal Interpretations and Additions

Modern jurisprudence further explores and nuances these doctrines. Courts now regularly
employ comparability analysis in contributory negligence claims, examining the proportionality
of fault among parties. Furthermore, the introduction of comparative negligence in several
jurisdictions marks a significant shift away from the "all-or-nothing" approach of contributory
negligence to more equitable remedies based upon the degree of fault.

Several jurisdictions have also incremented laws to encapsulate "last clear chance" doctrines
and exceptions in cases involving minors or incapacitated individuals, recognizing the
complexities of human reaction during emergencies and modifying negligence law to
accommodate such variables.

Doctrine of Identification
The Doctrine of Identification means that a servant with his master, agent with his principal
and a child with his parents/guardian are identified depending on the case. The defence of
contributory negligence can be pleaded not only when the plaintiff was himself negligent but
also when the negligence has been contributed by his ward i.e., servant. Since the master is
vicariously liable for the act of his servant the rule is that during the employment, negligence
of a servant is imputed to his master, whether the master is the plaintiff or the defendant.

Bernia Mills v. Armstrong, (1881) 18 AC 1.

Two ships collided with each other and two persons from one ship got drowned due to
collision. It was revealed later on that both the ships had committed wrong and were equally
responsible for the accident. In an action by the representatives of the deceased persons, the
defendant pleaded of contributory negligence. The House of Lords did not identify the victims
with their carrier for its negligence for the purpose of the defence of contributory negligence
and held the other ship liable for damages.

Composite negligence and nature of liability in composite negligence

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When the negligence is committed by two or more persons, then such negligence is called as
composite negligence. The term 'composite negligence' is used in our country for both kinds
of cases: independent tort feasors and joint-tort feasors. In composite negligence, liability of
the tort feasors is joint and several. In such a situation, no body is allowed to say that there
should be apportionment of damages and his liability should be on the basis of his fault. The
judgment delivered against the composite tort feasors is for a single sum without any
apportionment and it is the discretion of the plaintiff to enforce the whole of his claim against
any one of the defendants. If one defendant has paid more than his share, he may claim
contribution from the other defendants.

Hira Devi v. Bhaba Kant Das,1976 : AIR 1977 Gau 31.

There was an accident due to negligent bus driver of a State Transport and a car driver. One
person died due to this accident who was travelling in another car and also some other
occupants of that car got injured. The tribunal appointed made apportionment of damages
between bus and car owners. But the Guwahati High Court found that the Tribunal was in
error in apportioning the damages between the two tortfeasors. The Court stated that this is a
case of joint-tortfeasors and the liability of the owner of the car has not been established. The
claimaints were held entitled to recover the entire amount of claim from the owner of the bus
i.e., State of Assam. Simultaneously, the Court also said that this does not affect the right of the
State to claim contribution from the other tortfeasor, i.e., the owner of the car.

Res Ipsa Loquitur - Presumption of Negligence

In negligence cases, the burden of proof rests with the plaintiff to demonstrate the
defendant's actions or inactions resulting in injury. To hold the defendant liable for damages,
the plaintiff must establish the defendant's act or omission, which must also proximately cause
harm to the plaintiff. When the fault is uncertain, the individual claiming another's negligence
must tip the balance.

The plaintiff's task of proving the defendant's negligence can be challenging, especially if the
specific acts or omissions leading to injury or damage are not clear to them and only the
defendant possesses knowledge of the cause. In such instances, the maxim res ipsa loquitur is
applicable. Serving as a rule of evidence, it signifies that the circumstances themselves convey
the message of negligence, i.e., the presented facts and scenarios sufficiently support a prima
facie case of negligence against the defendant. The essence is that the accident's nature
should inherently indicate the defendant's negligence.

Winfield (1963) identifies two prerequisites for invoking res ipsa loquitur:
i) Control of the causative object must reside with the defendant or their servant;

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ii) The accident should be of a type that would not generally occur in the absence of
negligence.

It is imperative for the plaintiff's harm to stem from a breach of duty by the defendant and not
from any unrelated cause. Even if the defendant's failure to meet their duty results in harm,
they shall not be held responsible if the resulting damages are excessively indirect or in the
event of contributory negligence by the plaintiff.

The court presumes the negligence of the Defendant.

Byrne V. Boadle: A barrel of flour rolled out of an open doorway of the upper floor of the
godown of D, and fell on P who was going on the street. The burden was on D to prove that he
was not negligent. Held, D liable.

In State of Punjab V. M/s Modern Cultivators, a canal was under the care of the State. Due to its
negligence there was a breach and water flooded the fields of P. P suffered losses and sued
the State. Held, the State was liable. Res ipsa loquitur was applied.

An important case on this point

'The accident must be such as could not in the ordinary course of things have happened
without negligence.' Describe it in the light of judgment given in the case M.C.D.v.Subhagwanti.

Municipal Corporation of Delhi v. Subhagwanti,1966 : AIR 1966 SC 1750: (1966) 3 SCR 649.
Three persons died due to collapse of the Clock Tower which was situated opposite the Town
Hall in the Chandni Chowk, Delhi. It belonged to the plaintiff i.e., under the control of the
Municipal Corporation of Delhi. Three suits for damages were filed by the heirs of three
deceased persons-Ramaswami, J., observed:

"It is true that the normal rule is that it is for the plaintiff to prove negligence and not for the
defendant to disprove it. But there is an exception to this rule which applies where the
circumstances surrounding the thing which causes the damage are at the material time
exclusively under the control or management of the defendant or his servant and the
happening is such as does not occur in the ordinary course of things without negligence on
the part of the defendant. The doctrine of res ipsa loquitur applies in the circumstances of the
present case. It has been found that the Clock Tower was exclusively under the ownership and
control of the appellant or its servants. It has also been found by the High Court that the Clock
Tower was 80 years old and the normal life of the structure of the top storey of the building,
having regard to the kind of mortar used, should be only 40 or 45 years. There is also evidence
of the Chief Engineer that the collapse was due to thrust of the arches of the top portion and

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the mortar was deteriorated to such an extent that it was reduced to powder without any
cementing properties. It was also not the case of the appellant that there was any earthquake
or storm or any other natural event which was unforeseen and which could have been the
cause of the fall of the Clock Tower. In these circumstances the mere fact that there was fall of
Clock Tower tells its own story in raising an inference of negligence so as to establish a prima
facie case against the appellant."

Nervous Shock
Nervous shock represents a developing branch of law, focusing on injuries received through
the senses, viz., visual or acoustic.

"The shock must emanate from a reasonable fear of immediate personal injury to oneself."
This limitation of liability was advocated by Justice Kennedy in Dulieu v. White.

In Kings v. Philips, the duty of care was acknowledged towards the boy but not the mother,
according to the observations of Singleton L.J., MC Nair, J., and Denning L.J.

The human body is regulated by the brain, specifically from its hind-part, the medulla
oblongata, from which the spinal cord and nerves extend to various parts. Our five senses
(eye, ear, nose, tongue, and skin) allow us to perceive our surroundings. Essentially, witnessing
something horrific or believing imminent danger is present can lead to nervous shock.

Victorian Railway Commissioners v. Coultas (1888) - The appellant's gatekeeper negligently

allowed the plaintiffs to cross a railway despite an approaching train. The near-miss caused
severe nervous shock in the lady, leading to illness and miscarriage. The Privy Council deemed
such damage too remote for recovery as it arose from mental shock without physical injury.

Contrastingly, in Dulieu v. White (1901), it was determined that nervous shock with definite
illness constitutes as tangible a physical injury as any physical harm, rejecting the earlier
stance that only physical injuries from direct impacts warrant recognition.

Dulieu v. White (1901) - The plaintiff, a pregnant woman, suffered nervous shock without
physical harm when a horse van crashed into her establishment due to the servants'
negligence. Kennedy J. acknowledged liability, noting "If the fear is proved to have naturally
and directly produced physical effects, why should not an action for those damages lie just as
well as it lies where there has been an actual impact".

Hambrook v. Stokes Bros (1925) - After a lorry, left unattended, began moving and endangered
her children, Mrs. Hambrook suffered a fatal nervous shock. The court recognized the

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defendant's liability, expanding the scope beyond the limitations suggested in Dulieu, stating
that negligence leading to severe shock through fear for immediate family can invoke liability.

King v. Philips (1953) - A taxicab accident involving a small boy led to his mother suffering
nervous shock upon witnessing the scene. The courts maintained the defendant's duty of care
extended to the boy, not the mother, emphasizing reasonable foreseeability of harm as a
determining factor in liability.

Mcloughlin v. O’Brian (1982) - The unanimous ruling by the House of Lords acknowledged
liability for nervous shock suffered by the plaintiff upon learning of her family's accident and
witnessing their aftermath, signifying a departure from requiring direct personal danger for
liability.

Page v. Smith (1995) - This case distinguished between primary and secondary victims in
nervous shock claims, setting forth guiding principles including the necessity of a recognized
psychiatric illness resulting from the shock for damage claims.

The principle of reasonable foreseeability has led to judicial challenges, necessitating

qualifications such as the close relationship and proximity requirement between victims and
incidence (Mcloughlin v. O'Brian), and recognition that the tortfeasor must "take his victim as
he finds him" (Page v. Smith). Additionally, the distinction between primary and secondary
victims introduces considerations on the predictability of psychiatric injury and its legitimate
claims.

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 Nuisance And
Tresspass

Law Of Torts And Consumer Protection

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Nuisance
The term “nuisance” originates from the French word “nuire,” meaning “to do hurt, or to
annoy.” A nuisance occurs when there is an unlawful interference with a person’s use or
enjoyment of land, or some right over, or in connection with it. This results from another’s
improper use of their property. Stephen characterizes nuisance as any action detrimental to
the lands or tenements of another, which does not constitute a trespass. Salmond describes it
as causing or allowing the escape of something harmful from one’s land to another's, such as
water, noise, or fumes, without lawful justification.

Essentials of Nuisance
For a nuisance to be considered actionable:

There must be wrongful acts.

There must be damage, loss, or inconvenience caused to another.

The inconvenience must be significant, beyond mere sensitivity or annoyance, and

recognized by law.

An illustrative case is Ushaben v. Bhagyalaxmi Chitra Mandir, where the exhibition of a film was
not deemed a nuisance despite hurting religious sentiments, emphasizing that inconvenience
must be legally substantial. Another case, Halsey v. Esso Petroleum Co. Ltd., determined liability
for nuisances like acid smuts, noise, or smell due to their material impact.

Kinds of Nuisance
Public Nuisance
Under Section 3 (48) of the General Clauses Act, 1897, the words mean a public nuisance
defined by the Indian Penal Code.

Section 268 of the Indian Penal Code, defines it as “an act or illegal omission which causes any
common injury, danger or annoyance, to the people in general who dwell, or occupy property,
in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to
persons who may have occasion to use any public right.”

Simply speaking, public nuisance is an act affecting the public at large, or some considerable
portion of it; and it must interfere with rights which members of the community might
otherwise enjoy.

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Thus acts which seriously interfere with the health, safety, comfort or convenience of the
public generally or which tend to degrade public morals have always been considered public
nuisance.Public nuisance can only be subject of one action, otherwise a party might be ruined
by a million suits. Further, it would give rise to multiplicity of litigation resulting in burdening
the judicial system. Generally speaking, Public Nuisance is not a tort and thus does not give
rise to civil action.

In the following circumstances, an individual may have a private right of action in respect a
public nuisance.

1. He must show a particular injury to himself beyond that which is suffered by the rest of
public i.e. he must show that he has suffered some damage more than what the general body
of the public had to suffer.

2. Such injury must be direct, not a mere consequential injury; as, where one is obstructed, but
another is left open.

4. The injury must be shown to be of a substantial character, not fleeting or evanescent.

Cases include Solatu v. De Held, where incessant bell ringing was considered a public nuisance,
and Attorney General v. P.Y.A. Quarries, which recognized widespread discomfort from quarry
vibrations as a public nuisance.

India’s Civil Procedure Code, Section 91, allows for civil action against public nuisance without
requiring proof of special damage, enabling suits to be initiated by the Advocate General or,
with court permission, by two or more individuals.

Private Nuisance
Private nuisance pertains to the use of one’s property, or under one’s control, in a way that
injuriously affects another person’s property enjoyment. This form of nuisance primarily
affects individuals rather than the public at large, with remedies including damages,
injunctions, or both. The elements of private nuisance are unreasonable or unlawful
interference with land use or enjoyment, and damage.

Private Nuisance: Property and Personal Physical Discomfort

1. Injury to Property
For damage to property, any tangible injury is sufficient for action. In St. Helen Smelting Co. v.
Tipping, damage to trees and shrubs by fumes from manufacturing work was deemed an
injury to property, thus actionable. Similarly, in Ram Raj Singh v. Babulal, discomfort from dust

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caused by a brick powdering mill near a doctor’s consultation room led to a ruling of special
damage to the plaintiff. Hollywood Silver Fox Farm Ltd v Emmett saw a successful injunction
against malicious disturbance of breeding vixens, demonstrating injury to the business of
breeding silver foxes. In Dilaware Ltd. v. Westminister City Council, damage caused by tree
roots to a neighbouring building warranted remedial expenditure from the continuous
nuisance.

2. Physical Discomfort
To bring an action for nuisance related to physical discomfort, two essential conditions must
be met: a. Excess of the natural and ordinary course of enjoyment of the property – the injured
party must have a proprietary or possessory interest in the premises affected. b. Material
interference with the ordinary comfort of human existence – the discomfort must be
intolerable for an ordinary individual in the locality and environment.

Key factors in determining substantial discomfort include its degree or intensity, duration,
locality, and the mode of property use. Broadbent v. Imperial Gas Co. demonstrated an
injunction against a gas company to protect a market gardener's produce. Shots Iron Co. v.
Inglis prevented a company from releasing noxious vapours damaging to plantations. Sanders
Clark v. Grosvenor Mansions Co. dealt with an injunction against converting a floor into a
restaurant that caused nuisance by heat and smell. Datta Mal Chiranji Lal v. Lodh Prasad found
the operation of an electric flour mill next to a house as a private nuisance due to noise and
vibrations. Palmer v. Loder issued a perpetual injunction against behaviors causing noise
nuisances. Radhey Shiam v. Gur Prasad Sharma highlighted injunctive relief against noise
amplification in a noisy locality by a flour mill. Sturges v. Bridgman addressed the lack of a
prescriptive right for a confectioner's pestle and mortar noise, deemed a nuisance to a
neighboring physician’s consulting room, detailing conditions for actionable nuisances.

Defences to Nuisance
Following are the valid defences to an action for nuisance:

It is a valid defence to an action for nuisance that the said nuisance is under the terms of a
grant.

Prescription: A title acquired by use and time, and allowed by law; as when a man claims
anything, because he, his ancestors, or they whose estate he has, have had possession for the
period prescribed by law. This is therein Section 26, Limitation Act & Section 15 Easements Act.

To establish a right by prescription, three things are necessary:

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Use and occupation or enjoyment;

The identity of the thing enjoyed;
That it should be adverse to the rights of some other person.

A special defence available in the case of nuisance is prescription if it has been peaceable and
openly enjoyed as an easement and as of right without interruption and for twenty years. After
a nuisance has been continuously in existence for twenty years prescriptive right to continue it
is acquired as an easement appurtenant to the land on which it exists. On the expiration of this
period, the nuisance becomes legalized ab initio, as if it had been authorised in its
commencement by a grant from the owner of servient land. The time runs, not from the day
when the cause of the nuisance began but from the day when the nuisance began.

The easement can be acquired only against specific property, not against the entire world.

In Elliotson v. Feetham (1835) it was held that a prescriptive right to the exercise of a
noisome trade on a particular spot may be established by showing twenty years’ user by
the defendant.
In Goldsmid v. Tunbridge Wells Improvement Commissioners (1865), it was held that no
prescriptive right could be obtained to discharge sewage into a stream passing through
plaintiff’s land and feeding a lake therein perceptibly increasing quantity.
In Mohini Mohan v. Kashinath Roy, (1909), it was held that no right to hold kirtan upon
another’s land can be acquired as an easement. Such a right may be acquired by custom.
In Sturges v. Bridgman (1879), A had used certain heavy machinery for his business, for
more than 20 years. B, a physician neighbour, constructed a consulting room adjoining A’s
house only shortly before the present action and then found himself seriously
inconvenienced by the noise of A’s machinery.

B brought an action against A for abatement of the nuisance. It was held that B must succeed.
A cannot plead prescription since time runs not from the date when the cause of the nuisance
began but from the day when the nuisance began.

Statutory Authority: Where a statute has authorised the doing of a particular act or the use of
land in a particular way, all remedies whether by way of indictment or action, are taken away;
provided that every reasonable precaution consistent with the exercise of the statutory
powers has been taken. Statutory authority may be either absolute or conditional.

In the case of absolute authority, the statute allows the act notwithstanding the fact that it
must necessarily cause a nuisance or any other form of injury.

In the case of conditional authority, the State allows the act to be done only if it can be without
causing nuisance or any other form of injury, and thus it calls for the exercise of due care and

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caution and due regard for private rights.

In a Suit for Nuisance, It Is No Defence:

Plaintiff came to the nuisance: E.g., if a man knowingly purchases an estate in close
proximity to a smelting works his remedy for a nuisance created by fumes issuing
therefrom is not affected. It is not a valid defence to say that the plaintiff came to the
nuisance.

In the case of continuing nuisance, it is no defence that all possible care and skill are
being used to prevent the operation complained of from amounting to a nuisance. In an
action for nuisance, it is no answer to say that the defendant has done everything in his
power to prevent its existence.

It is no defence that the defendant’s operations would not alone amount to a nuisance.
E.g., the other factories contribute to the smoke complained of.

It is no defence that the defendant is merely making a reasonable use of his own
property. No use of property is reasonable which causes substantial discomfort to other
persons.

That the nuisance complained of although causes damage to the plaintiff as an individual,
confers a benefit on the public at large. A nuisance may be the inevitable result of some
operation that is of undoubted public benefit, but it is an actionable nuisance
nonetheless. No consideration of public utility should deprive an individual of his legal
rights without compensation.

That the place from which the nuisance proceeds is the only place suitable for carrying
on the operation complained of. If no place can be found where such a business will not
cause a nuisance, then it cannot be carried out at all, except with the consent or
acquiescence of adjoining proprietors or under statutory sanction.

The remedies available for nuisance are as follows:

Injunction: This may be a temporary injunction which is granted on an interim basis and that
may be reversed or confirmed. If it’s confirmed, it takes the form of a permanent injunction.
However, the granting of an injunction is again the discretion of the Court.

Damages: The damages offered to the aggrieved party could be nominal damages, i.e.,
damages just to recognize that technically some harm has been caused to the plaintiff, or
statutory damages, i.e., where the amount of damages is as decided by the statute and not

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dependent on the harm suffered by the plaintiff, or exemplary damages, i.e., where the
purpose of paying the damages is not compensating the plaintiff, but to deter the wrongdoer
from repeating the wrong committed by him.

Abatement: It means the summary remedy or removal of a nuisance by the party injured
without having recourse to legal proceedings. It is not a remedy which the law favors and is
not usually advisable. E.g., The plaintiff himself cuts off the branch of the tree of the defendant
which hangs over his premises and causes nuisance to him.

Trespass to person
Any direct invasion of a protected interest from a positive act is actionable subject to
justification. Those wrongs which affect someone's personal safety and freedom is termed as
'trespass to person.' It can be committed negligently as well as intentionally. If the invasion is
direct though foreseeable or the invasion is from an omission as distinguished from a positive
act, there could not be any liability in trespass, but may be liable for some other action.

Assault and Battery are two forms of Trespass to person. Battery is the intentional application
of force to another person. Assault is an action of the defendant which causes to the plaintiff a
reasonable apprehension of the infliction of a battery on him by the defendant. (Winfield)

To throw water at a person is assault. It is battery if a drop falls on him. Pulling away the chair
when a person is about to sit is assault. It becomes battery when he touches the ground.
Similarly, flashing light with a mirror is assault. It is battery when the rays impinge on the
plaintiff.

The word force has a defined scope in the context of assault and battery ; infliction of light,
heat, electricity, gas, odour and similar things which may be applied to such a degree as to
cause injury or personal discomfort, amounts to force as required in battery. As Chief justice
Holt, rightly said the least touching of another in anger is battery (Cole V. Turner). Hence
spitting a man on his face is assault, but, if any drops fall on him, it is battery.

1. Pointing a loaded pistol is assault. Pointing an unloaded pistol is no assault. In R.V. St.
George, it was held that pointing an unloaded pistol at dangerously close quarters was
assault. There was a reasonable apprehension of the impact of the gun. Hence it was assault.

2. In Stephens V. Myers: P as Chairman was in a meeting. D, a member became angry and

vociferous. Resolution was passed.

3. To remove him from the meeting. Thereupon D moved with closed first towards the
Chairman, but was stopped by a person who was sitting next to D. Held that there was assault.

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When a person standing on a Railway platform shows his fist to the plaintiff who is in moving
train, there is no assault. Awakening a pupil in a class-room by another student while the class
is going on, is battery. But if the teacher wakes him up there is no battery.

Similarly in the case of sermons, to touch a person with the least force, to call attention, is no
battery, if this is done by the Bishop. There are hundreds of instances of assault and battery in
the day to day affairs of human beings. But because of the good humour of mankind they do
not go to the Courts. Perhaps the other reason is De minimis noncuret lex meaning law does
not take cognizance of trifles.

Defenses:
For assault and Battery the following are the defenses open to the defendant.

i) Self Defense: This is a natural right recognized by law. A person may defend his person, his
family or his property from any trespass. Of course, the physical defense must be
proportionate to the injury received. Similarly, a person may inflict injury to defend his
property.

ii) Right to Expulsion: The defendant is entitled to forcibly expel the trespasser who enters by
force or otherwise without permission. Of course, the defendant should not use more force
than what is necessary.

iii) Right to retake property: Use of force as is 'necessary' under the circumstances is valid
and law allows the retaining of the land or goods using force.

iv) Volenti non fit injuria: In lawful games like cricket, football, boxing etc. any injury received
is covered under volenti non fit injuria. This is a good defence to the defendant.

v) Legal Arrest or search: Under the law the police officer is empowered to arrest a person or
search premises and in such a circumstance, he may use so much of the force as is necessary
according to law.

vi) Force used under authority: Parents, guardians, supervisors of trainees, captain of ship
etc. have some inherent rights to "correct" the persons under their control. Such persons may
validly defend themselves, provided the force used was reasonable and necessary.

False Imprisonment and Malicious Prosecution

An unjustified criminal charge can be devastating to an innocent person. Even when criminal
proceedings absolve a guiltless person, the stigma attached with detention and accusations of
criminal activity can lead to significant economic and non-economic losses. Job opportunities

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are foreclosed. Anxiety, depression and humiliation often follow. This blog explores two of the
tort remedies available to the falsely accused in the civil justice system.

The elements of malicious prosecution are:

A criminal case was brought against the plaintiff.
The criminal case was brought as a result of oral or written statements made by the
defendant.
The criminal case ended in favor of the plaintiff.
The defendant’s statements against the plaintiff were made without probable cause.
The defendant’s statements were motivated by malice toward the plaintiff.

The elements of malicious prosecution pose a significant burden to the Plaintiff. As the
elements note, the criminal case must be resolved in favor of the Plaintiff. This means that the
case must be dismissed or the plaintiff must be acquitted. Even if the plaintiff is actually
innocent, the claim will not succeed if the plaintiff is found guilty at trial. Additionally, the claim
must be made without probable cause. Probable cause means that the reporter of the crime
must have a good faith and reasonable belief that the Plaintiff was guilty of the offense. It is
not enough that the plaintiff is. It must be apparent to a reasonable person that the plaintiff is
not guilty of the offense. Finally innocent, it should be noted that prosecuting attorneys
generally cannot be held liable for malicious prosecution.

False imprisonment is a tort separate from malicious prosecution. The elements of false
imprisonment are:
The defendant intended to restrict the plaintiff’s freedom of movement.

The defendant, directly or indirectly, restricted the plaintiff’s freedom of movement.

The plaintiff was aware that his or her movement was restricted.

False imprisonment is a viable tort in a number of circumstances. One such circumstance is

when an individual levels a false allegation against another leading to an arrest and detention.
The defendant must directly or indirectly restrict the movement.

There are several notable affirmative defenses to false imprisonment. Most of the affirmative
defenses revolve around the rights of police officers and business owners to arrest or detain
individuals suspected of committing a crime. Generally, police officers and shopkeepers have
the right to detain individuals that they reasonably believe have committed a crime. Note that a
plaintiff can sue the police for false imprisonment. However, the police have a privilege to
arrest individuals without a warrant. If the police officer believed and had probable cause to

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believe that the accused had committed a criminal offense, that officer cannot be held liable
for false arrest.

Conversion
Conversion is any act in relation to the goods of a person which constitutes an unjustifiable
denial of his title to them. (Winfield)

Essentials:

Wrongfully taking possession of goods.

Abusing possession of them.

Denying title or asserting one's right.

Taking possession: If A snatches the hat of B with an intention to steal it, it amounts to
conversion. In Foldes V. Willouby, A and his horses embarked on B's boat. A dispute arose
between A and B. B put the horse on the shore and went to the other side with A. A claimed
that B had committed conversion. Held: No conversion.

In Richardson V. Atkinson, D drew out some quantity of wine from cask of P, but added water
to fill up the cask. Held, D was liable for conversion.

Abusing Possession: A person may be in possession of goods of another as a Bailee, Pawnee,

and Trustee etc. If he abuses his possession by selling or disposing of, he is liable for
conversion. If A makes omlette out of eggs given by B for custody, or if A makes a statue out of
log of wood of B given for custody, there is conversion. If a bailee abuses his possession e.g.:
Carrier, using customer's goods for himself, there is conversion.

Denying Title. Denial of title of plaintiff amounts to conversion. A let-out his land to B, B had
dumped some material C bought the land from A and used up part of the materials. Held: C
liable for conversion.

"Finder is keeping is a dangerous half truth"

The finder of goods has every right against all persons in the world except the real owner.
However, if the owner is not traced or if the owner makes no claim, question arises as to the
rights of the finder of goods.

In Armory V. Delamire: A Chimney sweeper found a jewel when he was weeping a chimney. He
gave it to S, servant of a goldsmith for purpose of valuation. S refused to return the same.
Held: Chimney sweeper was entitled. He had a better title than S.

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In Water Co., V. Sharman: P appointed D to clean his pool. While cleaning, D found two gold
rings. The owner could not be traced. Held: P was entitled. Reason: For things found on land,
the presumption is that the owner is entitled, as he has custody over it.

In Bridges V. Hawkesworth: P a customer found a bundle of currency notes on the floor of D's
shop. The owner could not be traced. Held: P was entitled to the notes. Reason: D was never in
the custody of the currency notes, before they were found. Hence the law relating to finding is
that "The finder has a better title than all others, except the real owner".

Trespass to Land
Definition: Trespass to land is the unjustifiable interference with the possession of land.
(Winfield)
Two Essentials:
Invasion of or entry on the land.

Invasion must be unjustifiable.

1. Possession: It is the evidence of ownership and has two ingredients: Animus and Corpus;

Animus is the mental element and

Corpus is the physical element.

The person in possession of land need not be the owner; he gets the right to quiet
and peaceful enjoyment of the property. He has a right to exclude all others. There
is trespass if A enters on the land of 'B' or remains there or does any act affecting
the possession of B, without legal authority. It is not necessary that he must use
force and cause damage on the land of B. In fact, as chief justice Holt said "Every
invasion of private property, be it ever so minute, is trespass". (Entinck V.
Corrington)

2. Invasion must be unjustifiable. Every interference which is without any legal authority or
justification amounts to trespass, e.g., Placing any chattel on the land of B, planting trees
on that land, shooting over that land, causing any noxious substance to cross the land,
erecting a building overhanging that land etc. Even the airspace above the land belongs
to the possessor of land and any unauthorized invasion is a trespass. Trespass may be by
animals. The owner of the animal is liable.

Trespass ab initio.
Trespass ab initio means trespass from the beginning, this is a circumstance where the entry
of a person on the land of another is lawful, but if the person stays and abuses his authority he

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becomes a trespasser ab initio. It is important that the person must abuse his possession by
doing some positive act and not by a mere omission.
i) Six Carpenter's case: Six carpenters entered an inn (hotel), took bread and wine. They paid
the bill. They ordered again and were served. They quarreled on the rates and then did not pay
as per the demand. The hotel owner P sued them for trespass ab initio. Held, not liable. For
trespass ab initio, there must be a positive act. Not paying was an omission. If a carpenter or
an electrician lawfully enters to do some repairs but does some positive act (damaging the
property, stealing some materials etc.,) he becomes liable for trespass ab initio.
ii) Dais V. Pasmore: In this case, the police entered the premises of P, to arrest P and others.
They seized some documents which were relevant for the trial of the arrested person; they
also seized other documents which they returned later. It was held that the police officers were
liable for trespass ab initio in respect of documents seized and returned. But they were not
liable for entry on the premises to arrest P and others.
iii) Chic Fashins V. Jones: The police officers, under a search warrant entered P's shop to
search certain stolen goods. They found none but found certain others which they seized.
They had reasonably and erroneously believed that the seized goods were stolen. Held, the
seizure was not illegal. The doctrine of trespass ab initio was not raised.

Remedies for Trespass.

The Remedies are

1. Right of re-entry: The dispossessed person P, may re-enter if that is possible or may
enter under the orders of the Court. (Specific Relief Act).

2. Action for recovery of land: The dispossessed person may sue for recovery of land; if he
establishes his title and possession, he ir. entitled to recover the land.

3. Action for mesne profits: Any profits made or rent collected or benefit made by the
person who was on land without legal authority, may be recovered by the plaintiff under
Civil Procedure Code by filing a suit for mesne profits.

4. Jus Tertii: This means 'right of third party'. If T is a tenant of P, the plea of T that P is not
the owner of that house or that he has no title, is no defence of T. Similarly, in case of
Trespass to land, the plea of the trespasser that P has no rights or title will not be
allowed. This is a sound rule of procedure before the courts. However, in case of
ejectment this may be a defence. In Asher V. Whotlock: 'A' was in possession of a waste
land. B entered the premises to take the waste. B pleaded jus tertii that the title was with
a third party but could not establish. Hence B failed.

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Defenses for Trespass

The various defense open to an action for trespass to land are briefly as follows:
a) Right by prescription: The defendant must establish his right earned by prescription.
b) Leave and License: The entry may be under permission expressly or by implication.
c) Authority of law: The entry may be according to law as in cases of entry for attachment of
property under the orders of the court.
d) Distress Damage feasant: For cattle trespass, the animal may be detained until
compensation is paid by the owner of the animal.
e) Self defence: This is a general defence and must be proved.
f) Re-entry on land: A person who is wrongfully dispossessed may enter peaceably and without
using force.
g) Abating a Nuisance: To remove a nuisance, entry on the land is justified.
h) Entry to protect an easementary right.

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 Defamation And
Tortous Liability Of
State

Law Of Torts And Consumer Protection

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Defamation
Defamation refers to the act of publishing a false statement about another person without
lawful justification, adversely affecting their reputation in the estimation of right-thinking
members of society. Such actions can lead to the person being shunned, avoided, or
experiencing injury to their office, professions, or trade. Defamation has also been defined as
the publication of a statement that exposes an individual to hatred, contempt, ridicule, or
tends to injure their reputation. The case of Dixon Vs Holden (1869) acknowledges the right of
reputation as an inherent right of every individual, exercisable against the entire world,
equating a person’s reputation to their property.

Essential Elements of Defamation:

False statement: The defendant must have communicated a false statement. Truthful
statements do not constitute defamation.

Defamatory statement: The statement must be defamatory, meaning it exposes the

plaintiff to hatred, contempt, ridicule, or undermines their position in their profession or
trade.

Statement refers to the plaintiff: The defamatory statement must reference the plaintiff,
even if not by name, so long as society can recognize the reference to the plaintiff.

Statement must be Published: The defamatory material must be made known to third
parties, other than the plaintiff.

Types of Defamation:
1. Slander: Involves non-permanent forms of defamation, such as spoken words or
gestures. Slander usually requires proof of damage, except in specific cases where the
statement implies a criminal offense, contagious disease, unchasteness in a woman, or
incompetence in one's profession.

2. Libel: Occurs in permanent forms of defamation, like writing, printing, or broadcasting.

Dictating defamatory matter that is later transcribed categorizes the initial act as slander
and the transcription as libel.

Distinctions between Slander and Libel:

Libel is a criminal offence as well as a civil wrong, whereas slander is primarily a civil
wrong.

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Libel exists in a permanent form; slander is non-permanent.

Libel is actionable per se, while slander requires proof of actual damage except in specific
instances.

Defenses against Defamation:

1. Truth or justification: Proving the statement's truthfulness nullifies defamation claims.

2. Fair comment: Honest and relevant comments on matters of public interest, devoid of
malice, are a defense.

3. Absolute Privilege: Some statements, such as those in judicial proceedings, parliament, or

between spouses, are completely protected.

4. Qualified Privilege: Allows communication of defamatory statements without malice in

certain contexts, like defending one's reputation or public interest communications.

5. Apology or Offer of Amends: Offering corrections and apologies can serve as a defense.

6. Consent: Implied consent to the publication negates defamation claims.

Remedies for Defamation:

Damages: Compensation for injured reputation and feelings.

Apology: Corrects the offensive statement’s impression.

Injunctions: Courts may prevent further publication of libel upon proof of its falsehood
and potential for irreparable damage.

VICARIOUS LIABILITY
Origin and Meaning: This concept makes one man liable for the acts of another because of
certain relationships like Master and Servant, Parent and children, etc. Originally it came from
"Qui facit per alium facit per se" (He who does an act through the instrumentality of another
does it himself). This rule was inadequate to explain the reason. Later the "General command
theory” was put forward and then “particular command theory". None of these was
satisfactory, and the modern theory is that the master is liable because he is a substantial
fellow or authority. As Winfield points out, this theory is based on "Social convenience and
rough justice".

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'Servant' and Independent Contractor Distinguished: The Servant is a person who works
according to the instructions of the master. The master can, not only order him to do an act
but can also control how it should be done. The servant works under the thumb of the master.
The master has full powers to control the acts of the servant. He has the powers of removal
also. He is different from an independent contractor who undertakes to do a piece of job
according to the requirements of the employer. The independent contractor is not under the
control of the employer. Hence, the employer is not liable for the acts of the independent
contractor.

Liability of the Master: The master is liable for the acts of the servant if the acts are done
within the course of his employment; otherwise, he will not be liable. "Within the course of
employment" means:

(i) Doing an authorized act

(ii) Doing an authorized act in an unauthorized manner and

(iii) Doing acts which are incidental thereto.

The act of the servant must fall into any one of the above, then only the master becomes liable.
Broadly speaking, the master is liable for carelessness, mistake, and willful wrongdoing of the
servant. Sometimes he is liable for the criminal acts of the servant.

Carelessness of the Servant: This is the most common kind of wrong which is generally due to
the negligence of the servant. The intention of the servant is not material. If the servant is
acting in the course of his employment, then the master becomes liable, but if the servant is
on a frolic of his own then the master is not liable. The leading case is Century Insurance Co. V.
Northern Ireland Road Transport. In this case, the driver of a petrol lorry was transferring
petrol from the lorry to the tank. He negligently struck a match to light a cigarette and threw it
on the floor. This caused a conflagration and an explosion. The property of P was damaged.
The defendant master was held liable for the careless act of the driver, as the act had been
done in the course of his employment. "Lighting a cigarette was an act of the servant for his
comfort and convenience". The act was innocent but was a negligent act of the servant, and
hence the master was liable.

Mistake of the Servant: Here the servant is a misguided enthusiast. The leading case is Bayley
V. Manchester Railway. The porter of the defendant Railway Co. violently pulled out from a
train P who had a ticket to go to some destination. In fact, the porter had mistakenly taken P
to be going in the wrong train. P sued and the Railway authority (master) was held liable. In
another case, the servant of D suspected that sugar was pilfered by a boy from the wagon and
he struck the boy, who fell and a wheel of the wagon went over his foot. D was held liable. In

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another case, a petrol bunk servant under a mistake, as to payment assaulted a car owner P
who had taken petrol. The servant did not know that P had already paid for the petrol. The
master was held liable for the act of the servant.

Willful Wrong of the Servant: Here there are two rules.

i) The act of servant is still in the course of employment even if it is forbidden by the master.

ii) It is not outside his employment if he intends to benefit himself, though not his master.

Limpus V. London General Omnibus Company: The driver had printed instructions not to race
with or obstruct other buses. The driver did not observe this and caused a collision. His master
was held liable because this was an unauthorized manner of doing an authorized act.

The Beard V. London Omnibus: The driver brought the bus to a terminus and went out for
breakfast. In the meanwhile, the conductor drove the bus for the next journey. In doing so he
dashed against and caused injury to P. P sued. It was held that the master was not liable as the
conductor was not in the course of employment when he was driving the bus.

In another case, the driver had printed instructions not to give lift to any unauthorized person.
The driver violated it, gave lift to P, and there was a collision resulting in the death of P. It was
held that the master was not liable for the act of the driver.

In Lloyd's Case, D was a firm of solicitors. It had employed a clerk to do its work. P, a widow,
was the owner of some cottages. She went for professional advice, and the clerk asked her to
execute documents, which she did. Here he had conveyed cottages to himself. The court held
that D, the master, was liable for the willful wrongdoing of the servant clerk.

Criminal Acts of the Servant: The general rule is that only in some cases the master is liable. In
Morris V. Martin, P gave her fur coat for dry cleaning to X, who handed it over to D. The servant
of D sold it away. It was held that under the circumstances, D was liable for the criminal act of
the servant. The master is not liable except in some cases where the act amounts to fraud or
theft or assault.

The other cases are:

1. Crood V. Derbyshire.

2. Blanton V. National Coal Board.

3. Dyer V. Munday.

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Independent Contractor: An independent contractor is a person appointed by the employer to

turn out a piece of job. He is different from a servant in as much as a servant is a person who
works under the control and supervision of the master. For the acts of an independent
contractor, the general rule is that the employer is not liable. There are a number of
exceptions. These are the non-delegable duties. According to Winfield, the question is always
whether the damage is caused due to the employer's breach of duty. The duties of the
employer are divided into delegable and non-delegable. This means the non-delegable
functions must be performed by the employer himself. But if he delegates such a function to
an independent contractor, the employer himself becomes liable.

There are a number of non-delegable duties:

i) Delegation may be a breach of duty itself, and the employer may be negligent in giving
instructions or information to the independent contractor. In a case, a gas company had no
authority to interfere on the Highways. The independent contractor's servant negligently left a
heap of stone over which the plaintiff fell and was injured. Held, the employer was liable. (Ellis
V. S.G. Co.)

ii) Obligations of the employer are to provide a competent staff of men, adequate material,
and a proper system of effective supervision if he does not follow these, the employer
becomes liable.

iii) Operations on or adjoining the highways: In Tarry V. Ashton, there was an overhanging
lamp of D on the footway. D appointed an independent contractor to repair who did it
negligently. The lamp fell on P, a passer-by. It was held that the employer D was liable.

In Grey V. Pullon, the defendant D had statutory authority to make a drain from his house to a
sewer across the road. He appointed an independent contractor to cut trenches, who did it
but negligently filled it up. The plaintiff P, a passenger was injured. D was held liable.

iv) Case of Strict Liability: The rule in Ryland V. Fletcher is applicable in respect of bringing and
storing items that cause injury when they escape. In such cases, the employer is liable.

v) Cases of Statutory Authority: The recent enactments have fixed the liability of the employer
under the Factories Act, Workmen's Compensation Act, etc.

In Padbury’s case, D employed a subcontractor to put casements to the windows. In so

putting, an iron tool, which had been kept by the servant on the window sill, fell and injured P
on the street. P sued D. The court held that D was not liable as the tool was not placed in the
ordinary course of doing work. There was only a collateral negligence of D.

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vi) When the employer personally interferes and gives directions to the independent
contractor, the employer becomes personally liable.

Joint Tort-Feasors: When two or more breaches of legal duty by different persons result in a
single injury to the plaintiff- P, then the two or more persons are called joint Tort Feasors.
According to Lord Justice Bankers, "Persons are said to be joint tortfeasors when their shares
in the commission of the tort are in furtherance of a common design".

In Brook V. Bool: Two men were searching for a gas leak. Each applied a naked light to the gas
pipe in turn, and one of them caused an explosion. They were held to be joint tortfeasors. This
is different from a case where two ships negligently collided and later dashed against another
vessel negligently. This is also different from a tort committed by a child under the directions
given by the parents.

Contribution: Both the joint tortfeasors are liable in tort. But, the plaintiff can claim the amount
in full from one of them. The question arises in such cases whether one tortfeasor may claim
indemnification from the other.

In Merry Weather V. Nixon. A and B jointly damaged the machinery in C's mill. C sued them
jointly and got compensation which he recovered from A. Now A sued B for half the amount
which he had paid. It was held that A could not recover from B. This decision has been
reversed by the Parliament in England in the Law Reforms Act 1935. According to this, one
tortfeasor can recover his contribution from the other tortfeasor. Hence, he is entitled to be
indemnified.

Vicarious liability of the State

The concept of the vicarious liability of the State in India encompasses the responsibility of the
Government of India and the Governments of Indian States for torts committed by their
servants against individuals. Though the Constitution of India does not explicitly state this
liability, it indirectly equates the liability of the current Government with that of the East India
Company, as indicated by Article 300, which implicates section 176(i) of the Government of
India Act, 1935. This section, echoing section 32 of the Government of India Act, 1915, and
section 65 of the Government of India Act, 1858, suggests that the liability ascertained from
the study of cases extends from the East India Company to the Secretary of State-in-Council.

The Peninsular and Oriental Steam Navigation Company v. Secretary of State for India-in-
council, 1861 case highlighted this liability, with Chief Justice Sir Barrens Peacock establishing
the Government's liability for negligence by its employees, differentiating between acts done
in the exercise of sovereign powers and those conducted in undertakings which could be
carried on by private individuals. However, in Secretary of State v. Haribhanji, 1882, Chief Justice

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Turner did not follow the precedent set by the Peninsular case, emphasizing that the East India
Company was not sovereign and hence could be held liable, a stance differing from claims of
sovereign immunity.

In Kasturi Lal v. State of Uttar Pradesh, the Supreme Court revisited the sovereign and non-
sovereign distinction, ruling the Government was not liable for negligence committed by
police officers in the exercise of sovereign powers. This ruling underscored the principle that
the State's liability for tortious acts of its servants hinges on whether these acts were
committed in the discharge of statutory functions derived from sovereign powers.

Subsequent case law in State of Orissa v. Padmalochan and Baxi Amrik Singh v. Union of India
further defined acts committed by State or its officials while exercising sovereign powers,
distinguishing them from acts committed in non-sovereign capacities, as seen in cases like
Union of India v. Sugrabai and Satyawati Devi v. Union of India, with the latter ruling that the
Government was liable for negligence not related to sovereign functions.

Acknowledging the need for reform, recent developments in writ jurisdiction (Articles 32 and
226) have made it possible to seek justice and compensation for violations of fundamental
rights by Government officials, even when performing sovereign functions, exemplified by
cases such as Rudul Sah v. State of Bihar and Nilabati Behra v. State of Orissa, where the
Supreme Court awarded compensation for infringement of fundamental rights.

Consequently, two main remedies exist against the State: under Article 300 of the Constitution,
addressing vicarious liability in tort law, and under Articles 32 and 226, concerning violations of
fundamental rights by the State or its officials. Compensation for violations of fundamental
rights, under writ jurisdiction (Articles 32/226), remains an exceptional remedy distinct from
cases falling under Article 300.

Criminal Conspiracy
In India, the concept of criminal conspiracy, initially considered a civil wrong, became part of
the criminal law through the addition of Sections 120A and 120B to the Indian Penal Code (IPC)
by the Criminal Law Amendment Act of 1913. Section 120A defines criminal conspiracy as an
agreement between two or more individuals to commit an illegal act or to achieve a legal end
through illegal means, requiring action beyond mere agreement for it to be considered a
conspiracy unless it's an agreement to commit an offence. Section 120B outlines the
punishments, dividing them based on the severity of the offence plotted, where conspiracies
related to grave offences are punished as if the conspirator had abetted the offence, while
others might lead to imprisonment up to six months, or fines, or both.

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The essentials of criminal conspiracy include a defined objective, a plan incorporating means
to achieve it, an understanding among the accused to cooperate towards the objective by
those means or any effective ones, and, in some jurisdictions, the requirement of an overt act.
The Law Commission of India further specifies that any agreement to commit a punishable
offence qualifies as a criminal conspiracy.

Notable cases have clarified aspects of criminal conspiracy. In "Ram Narayan Popli v. C.B.I," and
"Rajiv Kumar v. State of U.P," the importance of an agreement targeting an illegal act or the
execution of a legal act by illegal means was emphasized as the sine qua non of conspiracy.
"Leo Roy Frey v. Suppdt. Distt. Jail" highlighted the distinct nature of conspiracy from the crime
it intends to commit, noting its completion precedes the actual crime. "State of Maharashtra &
Ors. v. Som Nath Thapa & Ors." stressed that knowledge of and intent to further the illegal act
among conspirators is crucial for determining conspiracy.

Conspiracy under tort

The classic case of Quinn v. Leathem defined the tort of conspiracy as an unlawful combination
of two or more persons to do an act contrary to law or harmful towards another person, or to
achieve a legal objective through unlawful means. This tort is completed when there's a
common intention to cause harm, an act in furtherance of this intention, and actual harm
caused. It parallels a partnership where members conspire to commit or plan an act, and the
continuity of combination among conspirators is irrelevant. It's distinguished from individual
civil rights invasions due to the potential for seemingly lawful separate actions to become
harmful when done in concert. Historically rooted in British law, the tort's criminal counterpart
was refined in the 17th century, becoming both a criminal and civil liability. The modern scope
of criminal conspiracy was narrowed by the Criminal Law Act of 1977, limiting indictable
conspiracies to those intending to commit a criminal offence, defraud, or corrupt public
morals. In contrast, civil conspiracy remains broad, unconfined by statute. India mirrors this,
with criminal conspiracy defined under the IPC, while the tort of conspiracy follows common
law precedents.

The essentials of the tort of conspiracy include:

1. Intention: A requisite common intention to harm, with liability depending on the
combiners acting to cause damage to the claimant. Malevolence isn't necessary unless it
drives the defendants' actions.

2. Combination: At least two or more persons must act together with a common intent.
Separate entities with similar intentions but without collaboration do not constitute a

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conspiracy. However, a husband and wife can be considered as separate entities capable
of conspiring, unlike an employer and their employees executing business tasks.

3. Overt Act: An act in furtherance of the conspiracy that causes harm is essential. The tort
requires a demonstrable action by any conspirator that results in damage to the
claimant, not just evidence of conspiracy. Liability hinges on actual pecuniary loss, with
damages not strictly restricted to the proven loss amount.

The tort of conspiracy involves coordinated actions among individuals or entities aiming to
cause harm to another party, often through unlawful means or with intent to injure. Various
case laws demonstrate interpretations of this tort principle:

1. In the Mogul Steamship Co. v. McGregor Gow and Co. case, defendants who aimed to
monopolize the homeward tea trade by offering rebates for exclusivity were found not
liable since their actions, aimed at extending their trade, employed no unlawful means
against rival shipowners.

2. Sorrel v. Smith saw a committee threaten to cut off newspaper supply to coerce customer
loyalty, yet their motive to promote their own business interests without intending to
injure the plaintiff led to a verdict of no liability.

3. The case of the Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch involved a trade
union's lawful attempt to improve its members’ economic prospects by encouraging non-
handling of goods, without intending harm to the plaintiff, resulting again in no liability.

4. In Hunteley v. Thornton, a union's spiteful action against a member who refused to strike
led to liability due to the predominant intent to injure the plaintiff.

5. The Rohtas Industries Ltd. v. Rohtas Industries Staff Union case found the union not liable
for an illegal strike during conciliation, as the strike's purpose was self-benefit rather
than injuring the management.

6. The Pepsi Foods Ltd. and Others v. Bharat Coca-Cola Holdings Pvt. Ltd. argued a case of
business interference and conspiracy against the defendants. However, lacking a prima
facie case for injunction and the absence of overt damage-causing acts led to no action.

7. Finally, the Revenue and Customs Commissioners v. Total Network SL involved a VAT fraud
scheme not primarily aimed at injuring but profiting, failing to establish a conspiracy to
injure but sustaining liability under the unlawful means conspiracy.

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These cases illustrate the complexity of proving conspiracy in tort law, highlighting the
importance of the defendants' intentions and the means employed in their actions.

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 Consumer Protection
And Motor Vehicles
Act

Law Of Torts And Consumer Protection

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Consumer Protection Act

The moment a person comes into this world, he starts consuming. He needs clothes, milk, oil,
soap, water, and many more things and these needs keep taking one form or the other all
along his life. Thus, we all are consumers in the literal sense of the term. When we approach
the market as a consumer, we expect value for money, i.e., right quality, right quantity, right
prices, information about the mode of use, etc. But there may be instances where a consumer
is harassed or cheated. The Government understood the need to protect consumers from
unscrupulous suppliers, and several laws have been made for this purpose. We have the
Indian Contract Act, the Sale of Goods Act, the Dangerous Drugs Act, the Agricultural Produce
(Grading and Marketing) Act, the Indian Standards Institution (Certification Marks) Act, the
Prevention of Food Adulteration Act, the Standards of Weights and Measures Act, etc. which to
some extent protect consumer interests. However, these laws require the consumer to initiate
action by way of a civil suit involving a lengthy legal process which is very expensive and time-
consuming. The Consumer Protection Act, 1986 was enacted to provide a simpler and quicker
access to redressal of consumer grievances. The Act for the first time introduced the concept
of ‘consumer’ and conferred express additional rights on him. It is interesting to note that the
Act doesn’t seek to protect every consumer within the literal meaning of the term. The
protection is meant for the person who fits in the definition of ‘consumer’ given by the Act. The
Consumer Protection Act, 2019 was introduced to replace the Consumer Protection Act, 1986.
The new Act contains various provisions which incorporate the challenges faced by modern
and technology-dependent consumers. The Act also contains various provisions for the
protection and promoting the rights of the consumers. Now we understand that the
Consumer Protection Act provides means to protect consumers from getting cheated or
harassed by suppliers. The question arises how a consumer will seek protection? The answer is
the Act has provided a machinery whereby consumers can file their complaints which will be
entertained by the Consumer Forums with special powers so that action can be taken against
erring suppliers and possible compensation may be awarded to the consumer for the
hardships he has undergone. No court fee is required to be paid to these forums and there is
no need to engage a lawyer to present the case. Following chapter entails a discussion on who
is a consumer under the Act, what are the things which can be complained against, when and
by whom a complaint can be made, and what are the relief available to consumers.

Consumer
A consumer is an individual or group of individuals who purchase goods and services for their
own personal use and not for the purpose of manufacturing or resale. Section 2(7) of the
Consumer Protection Act, 2019 defines a consumer as any person who buys goods or services
in exchange for consideration and utilises such goods and services for personal use and for

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the purpose of resale or commercial use. In the explanation of the definition of consumer, it
has been distinctly stated that the term ‘buys any goods’ and ‘hires or avails any services’ also
includes all online transactions conducted through electronic means or direct selling or
teleshopping or multi-level marketing.

Need for the Consumer Protection Act, 2019

The Consumer Protection Act, 2019 was enacted by the Indian legislature to deal with matters
relating to violation of consumer’s rights, unfair trade practices, misleading advertisements,
and all those circumstances which are prejudicial to the consumer’s rights. The intention of
the Parliament behind enacting the Act was to include provisions for e-consumers due to the
development of technology, buying and selling of goods and services online have considerably
increased during the last few years.

The Act seeks to provide better protection of the rights and interests of the consumers by
establishing Consumer Protection Councils to settle disputes in case any dispute arises and to
provide adequate compensation to the consumers in case their rights have been infringed. It
further provides speedy and effective disposal of consumer complaints through alternate
dispute resolution mechanisms. The Act also promotes consumer education in order to
educate the consumer about their rights, responsibilities and also redressing their grievances.

Objective of the Consumer Protection Act, 2019

The main objective of the Act is to protect the interests of the consumers and to establish a
stable and strong mechanism for the settlement of consumer disputes. The Act aims to:

1. Protect against the marketing of products that are hazardous to life and property.

2. Inform about the quality, potency, quantity, standard, purity, and price of goods to
safeguard the consumers against unfair trade practices.

3. Establish Consumer Protection Councils for protecting the rights and interests of the
consumers.

4. Assure, wherever possible, access to an authority of goods at competitive prices.

5. Seek redressal against unfair trade practices or unscrupulous exploitation of consumers.

6. Protect the consumers by appointing authorities for timely and sufficient administration
and settlement of consumers’ disputes.

7. Lay down the penalties for offences committed under the Act.

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8. Hear and ensure that consumers’ welfare will receive due consideration at appropriate
forums in case any problem or dispute arises.

9. Provide consumer education, so that the consumers are able to be aware of their rights.

10. Provide speedy and effective disposal of consumer complaints through alternate dispute
resolution mechanisms.

What are consumer rights under Consumer Protection Act, 2019

There exist six rights of a consumer under the Consumer Protection Act, 2019. The rights of
the consumers are mentioned under Section 2(9) of the Act, which are as follows:

1. The right of a consumer to be protected from the marketing of goods and services that
are hazardous and detrimental to life and property.

2. The right of a consumer to be protected against unfair trade practices by being aware of
the quality, quantity, potency, purity, standard and price of goods, products or services.

3. The right of a consumer to have access to a variety of goods, services and products at
competitive prices.

4. The right to seek redressal at respective forums against unfair and restrictive trade
practices.

5. The right to receive adequate compensation or consideration from respective consumer

forums in case they have been wronged by the seller.

6. The right to receive consumer education.

What are unfair trade practices under Consumer Protection Act, 2019
Section 2(47) of the Consumer Protection Act, 2019 defines the term ‘unfair trade practices’
which include:

Manufacturing spurious goods or providing defective services.

Not issuing cash memos or bills for the goods purchased or services rendered.

Refusing to take back or withdraw the goods or services and not refunding the
consideration taken for the purchase of the goods or services.

Disclosing the personal information of the consumer.

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Changes incorporated in Consumer Protection Act, 2019

The changes that were incorporated with the enactment of the Consumer Protection Act, 2019
are:

The District Commissions will have the jurisdiction to entertain complaints where the
value of the goods, services or products paid as consideration to the seller does not
exceed 50 lakh rupees.

State Commissions will have the jurisdiction to entertain complaints where the value of
the goods, services or products paid as consideration to the seller exceeds 50 lakh
rupees but does not exceed two crore rupees.

The National Commission will have the jurisdiction to entertain complaints where the
value of the goods, services or products paid as consideration to the seller exceeds two
crore rupees.

The Act further states that every complaint concerning consumer dispute shall be
disposed of as expeditiously as possible. A complaint filed under this Act shall be decided
within the period of three months from the date of receipt of notice by the opposite
party in the cases the complaint does not require analysis or testing of the goods and
services and within a period of 5 months, if it requires analysis or testing of the goods
and services.

The Consumer Protection Act, 2019 also facilitates the consumers to file complaints
online. In this regard, the Central Government has set up the E-Daakhil Portal, which
provides a convenient, speedy and inexpensive facility to the consumers all over India so
that they are able to approach the relevant consumer forums in case of any dispute
arises.

The Act lays down the scope for e-commerce and direct selling.

The Consumer Protection Act, 2019 lays down provisions for mediation and alternative
dispute resolution so that the parties are able to dispose of the case conveniently without
going through the trouble of litigation.

The Consumer Protection Act, 2019 contains provisions for product liability, unfair
contracts and it also includes three new unfair trade practices. In contrast, the old Act
just stated six types of unfair trade practices.

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The Act of 2019 acts as the advisory body for the promotion and protection of consumer
rights.

Under the Consumer Protection Act, 2019 there is no scope for selection committees, the
Act authorises the Central Government to appoint the members.

Therefore, with the changes in the digital era, the Indian Parliament enacted and brought the
Consumer Protection Act, 2019 in force to include the provisions for e-commerce as
digitalization has facilitated convenient payment mechanisms, variety of choices, improved
services, etc.

Essential provisions of Consumer Protection Act, 2019

The essential provisions of the Consumer Protection Act, 2019 are:

Consumer Protection Councils

The Act establishes consumer protection councils to protect the rights of the consumers at
both the national and state levels.

Central Consumer Protection Council

Under Chapter 2 Section 3 of the Consumer Protection Act, 2019 the Central Government shall
establish the Central Consumer Protection Council which is known as the Central Council. It is
an advisory body and the Central Council must consist of the following members;

The Minister-in-charge of the Department of Consumer Affairs in the Central Government will
be appointed as the chairperson of the council, and

Any number of official or non-official members representing necessary interests under the Act.

The Central Council may meet as and when necessary, however, they must hold at least one
meeting every year. The purpose of the Central Council is to protect and promote the interests
of the consumers under the Act.

State Consumer Protection Councils

Every state government shall establish a State Consumer Protection Council known as the
State Council having jurisdiction over that particular state. The State Council acts as an
advisory body. The members of the State Council are:

The Minister-in-charge of the Consumer Affairs in the State Government will be appointed as
the chairperson of the council,

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Any number of official or non-official members representing necessary interests under the Act,
and

The Central Government may also appoint not less than ten members for the purposes of this
Act.

The State Councils must hold at least two meetings every year.

District Consumer Protection Council

Under Section 8 of the Act, the state government shall establish a District Consumer
Protection Council for every district known as the District Council. The members of the District
Council are:

The collector of that district will be appointed as the Chairperson of the District Council, and

Any other members representing necessary interests under the Act.

Central Consumer Protection Authority

The Central Government shall establish a Central Consumer Protection Authority which is
known as the Central Authority under Section 10 of the Consumer Protection Act, 2019, to
regulate matters relating to violation of the rights of consumers, unfair trade practices and
false or misleading advertisements which are prejudicial to the interests of the public and
consumers and to promote, protect and enforce the rights of consumers. The Central
Government will appoint the Chief Commissioner and the other Commissioners of the Central
Authority as required under the Act.

The Central Authority must have an ‘Investigative Wing’ under Section 15 of the Act to conduct
an inquiry or investigation. The investigative wing must comprise of the Director-General and
the required number of Additional Director-General, Director, Joint Director, Deputy Director
and Assistant Director possessing the required experience and qualifications to carry out the
functions under this Act.

Functions and duties of the Central Authority

The functions and responsibilities of the Central Authority are laid down in Section 18 of the
Act which includes;

To protect and promote the rights of the consumers as a class and to prevent violation of
consumer rights,

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To prevent unfair trade practices,

To ensure no false or misleading advertisements regarding any goods or services are

promoted,

To ensure no person takes part in false or misleading advertisements,

Inquire or investigate in cases of violation of consumer rights or unfair trade practices.

File complaints before the National, State or District Commission as the case may be,

To review matters relating to the factors hindering the enjoyment of consumer rights.

To recommend the adoption of international covenants and best international practices

concerning consumer rights

Promote research and awareness of consumer rights.

Lay down necessary guidelines to prevent unfair trade practices and protect the interests
of the consumers.

Furthermore, the Central Authority also has the power to investigate after receiving any
complaint or directions from the Central Government or of its own motion in cases where
there is an infringement of consumer rights or unfair trade practices are carried out. And if
the Central Authority is satisfied that infringement of consumer rights or unfair trade
practices has occurred then it may:

Recall the goods or services which are hazardous and detrimental to the consumers,

Reimburse the prices of the goods and services to the consumers, and

Discontinue the practices that are prejudicial and harmful to the consumers.

Under Section 21 of the Act, the Central Authority is authorised to issue directions to false and
misleading advertisements which may extend to ten lakh rupees. While determining the
penalty of the offence the Central Authority must keep in mind factors such as; the population
affected by the offence, frequency of the offence and gross revenue from the sales of such
product. The Central Authority can also direct search and seizure for the purposes of this Act
and in that case the provisions of the Criminal Procedure Code, 1973 will apply.

Consumer disputes redressal commission

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The state government shall establish a District Consumer Disputes Redressal Commission,
known as the District Commission in each district of the state under the Consumer Protection
Act, 2019. The District Commission shall comprise of a President and not less than two
members prescribed by the Central Government.

Section 34 of the Act authorises the District Commission to entertain complaints where the
value of the goods or services paid as consideration does not exceed one crore rupees. The
complaint relating to goods and services can be filed to the District Commission by the
consumer, recognized consumer association, Central Government, Central Authority, State
Government, etc.

Section 36 states that all the proceedings before the District Commission shall be conducted
by the President and at least one member of the commission.

Mediation
Chapter 5 Section 74 of the Consumer Protection Act, 2019 states that a Consumer Mediation
Cell shall be established by the Central Government at the national level and every state
government shall establish Consumer Mediation Cell exercising within the jurisdiction of that
state. The mediator nominated to carry out the mediation shall conduct it within such time and
in such manner as may be specified by regulations.

Section 75 of the Act talks about the empanelment of the mediators. It states the
qualifications, terms and conditions of service, the procedure for appointing, and the fee
payable to the empanelled mediators.

It is the duty of the mediator to disclose certain facts such as; any personal, financial or
professional in the result of the consumer dispute, the circumstances giving rise to their
independence or impartiality and any other necessary information for the protection of
consumer rights.

Product liability
Under Section 83 of the Act, a product liability action may be brought by a complainant against
a product manufacturer, product service provider or product seller.

Liability of product manufacturer

A product manufacturer will be held liable in a product liability action under the following
circumstances:

The product contains manufacturing defects.

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The product is defective.

There is a deviation from manufacturing specifications.
The product does not conform to the express warranty.
The product fails to contain adequate information for proper usage.
Liability of product service provider
A product service provider will be held liable in a product liability action under the
following circumstances:
The service provider will be responsible when the service provided by them is faulty or
imperfect.
There was an act of negligence on their part.
The service provider failed to issue adequate instructions and warnings for the services.
The service provider failed to conform to the express warranty or terms and conditions
of the contract.
Liability of product seller
A product seller will be held liable in a product liability action under the following
circumstances:
They altered or modified the product which resulted in being detrimental to the
consumer.
They failed to exercise reasonable care in assembling, inspecting or maintaining such
product
They exercised substantial control over the product which resulted in causing harm to
the consumer.
Exceptions to product liability

There are certain exceptions to product liability action mentioned in Section 87 of the Act,
such as;
The product was altered, modified or misused by the consumer,
A consumer cannot bring product liability action when the manufacturer has given
adequate warnings and instructions for the use of the product,
The manufacturer would not be liable in case of a product liability action for not warning
about any danger that is commonly known to the general public.

Offences and penalties under Consumer Protection Act, 2019

The offences and penalties listed under this Act are mentioned as follows.

1. Punishment for false and misleading advertisements: Under Section 89 of the Act any
manufacturer or service provider who promotes false or misleading advertisements will

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be punished with imprisonment for a term that may extend to two years and with fine
that may extend to ten lakh rupees.

2. Punishment for manufacturing, selling, distributing products containing adulterants:

Under Section 90 of the Consumer Protection Act, 2019 any person who sells,
manufactures, distributes products containing adulterants shall be penalised in case of
the following circumstances;

If the adulterated product does not cause any injury to the consumer then the term for
imprisonment will extend to a period of six months and fine which may extend to one
lakh rupees,

If the product containing adulterant causes injury not amounting to grievous hurt then
the term for imprisonment will extend to a period of one year and fine which may extend
to three lakh rupees,

If the product containing adulterant causes injury amounting to grievous hurt then the
term for imprisonment will extend to a period of seven years and fine which may extend
to five lakh rupees,

If the product results in causing death to the consumer then the term for imprisonment
will be for a period of seven years which may extend to life imprisonment and fine not
less than ten lakh rupees.

3. Punishment for manufacturing, selling, and distributing spurious products: Section 91

states that any person who sells, manufactures, or distributes spurious products shall be
punished for such acts.

How do consumers benefit from Consumer Protection Act, 2019

The Consumer Protection Act, 2019 is a significant piece of legislation brought as it is beneficial
for the consumers. The Act widens the scope of protection regarding the rights and interests
of consumers.

Unfair contracts: The Act introduced ‘unfair contract’ under Section 2(46) of the Act,
which includes contracts requiring excessive security deposits to be given by the
consumer for the performance of contractual obligations. However, the inclusion of
unfair contracts in the Act would enable the consumer to file complaints in such cases
and would also keep the fraudulent businesses in check.

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Territorial jurisdiction: The Act enables the consumers to file complaints where the
complainant resides or personally works for gain thus it would benefit the consumers in
seeking redressal for their grievances when their rights have been violated.

False and misleading advertisements: The Act defines the term ‘false and misleading
advertisements’ and also lays down strict penalties for such acts or omissions.

Product liability: The term ‘product liability’ has been defined by this Act, which states that
it is the duty of the product manufacturer, service provider or seller to compensate for
any harm caused to a consumer by such defective product manufactured or service
provided to the consumer.

Mediation and alternative dispute resolution: The Act enables the consumer to opt for
mediation and alternative dispute resolution mechanisms for speedy and effective
settlement of consumer disputes.

E-filing of complaints: The Act also facilitates e-filling of the complaints and seeking video
conference hearings by the Commission. Thus, providing convenient means for the
consumers to voice their grievances.

Landmark case laws

Horlicks Ltd. v. Zydus Wellness Products Ltd. (2020)
In this case, both parties are manufacturers of nutritional drinks, however, Zydus advertised a
television commercial trivialising the products of Horlicks Ltd. The commercial was being
telecasted in various languages including English, Tamil and Bengali. Therefore, the Delhi High
Court relied on various judgments on misleading advertisements, disparagement and law
governing the publication of advertisements on television and held that the advertisement is
disparaging as it does not provide any concrete proof regarding the quality of the product.
Further, electronic media leaves an impression on the minds of the viewers thus, these types of
advertisements would not only be detrimental to the consumers but also the complainant
would suffer irreparable damage.

A famous judgement relied on by Delhi High Court while deciding this case is Pepsi Co. Inc. v.
Hindustan Coca Cola Ltd., 2003 where the Delhi High Court held that there are certain
important factors that are to be kept in mind in case of disparagement which are; manner of
the commercial, intent of the commercial and storyline of the commercial.

Veena Khanna v. Ansal Properties & Industries Ltd, NCDRC (2007)

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In this case, the complainant offered to purchase a flat from the respondent which the
respondent agreed to deliver on 1.6.1999 through a letter. However, the flat was not
constructed within the specified date and hence it was not delivered. For such deficiency in
services, the complainant demanded the refund of the deposited amount with interest at the
rate of 18% pa which was refused by the opposite party.

The National Commission observed that due to delays in construction and delivery of
possession it is quite difficult for a consumer to purchase a flat at market price. The National
Commission stated that it is the duty of the State Commission to direct the builders to deliver
the possession of the flat as soon as it is completed and the complainant should be awarded
suitable compensation for the delay in construction. The complainant just claimed the refund
amount before the State Commission, but the case was pending before the commission for
five years and during that time there was a tremendous rise in the market prices of the
immovable property. The National Commission further stated that it was the duty of the State
Commission to direct the respondents to deliver the possession of the flat or any other flat of
equivalent size to the complainant with appropriate compensation, due to the delay in
delivering the possession within the specified time. Or, adequate compensation ought to have
been provided to the complainant so that they could purchase a new flat of the same size at
the prevailing market rate in that same locality.

Sapient Corporation Employees v. Hdfc Bank Ltd. & Ors. (2012)

In this case, a consumer complaint was filed by Sapient Corporation Employees Provident Fund
Trust against HDFC bank Ltd. The complainant claimed that OP-Bank has committed deficiency
of services by debiting the account of the Complainant. The court in this case held that there
was no deficiency of service on the part of OP-bank and the arguments contented by the
complainant are baseless. A behaviour that conforms to the direction of regulatory authority
cannot be said to be negligence or service deficiency.

Conclusion

The Consumer Protection Act, 2019 is a modified piece of legislation that offers the consumers
a great variety of benefits and rights to protect them from unfair trade practices, false or
misleading advertisements, etc. The Act enables the consumers to seek alternative dispute
resolution mechanisms and mediation so that the parties can opt for speedy and effective
settlement of consumer disputes. The scope of e-filing of complaints and e-consumers in the
Act portrays forward-thinking in part of the legislature. Furthermore, the Act also introduced
new terms such as product liability, unfair contracts, etc. thereby widening the scope of
protection of consumer rights and enabling the consumers to file complaints when their
rights have been violated under the Act.

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Thus, the inclusion of the provisions in this fills up the lacunae in the Consumer Protection Act,
1986. The enactment of the Act was paramount and it changed the ambit of protecting the
rights of consumers in the country

SUBJECT | Law Of Torts And Consumer Protection 13 of 13

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Law Of Torts And Consumer Protection

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The Motor Vehicle Act

The Indian parliament approved the Motor Vehicle Act in 1988, which governs practically all
elements of road transport vehicles. It covers all areas covered by the Act’s provisions, such as
traffic laws, vehicle insurance, motor vehicle registration, controlling permits, and penalties.
The Act came into effect on July 1, 1989. The government of India, in discussion with state
transport ministers, came up with this Motor Vehicle (Amendment) Bill to make amendments
to the Motor Vehicle Act, 1988, in order to ensure that roads are safe. On April 10, 2017, the
Lok Sabha passed the Motor Vehicles (Amendment) Bill, 2017.

This Act requires all drivers to have a valid driving licence, and no vehicle may be driven unless
it is registered under the Motor Vehicle Act. The purpose of the Act’s preamble is to
consolidate and modernise motor vehicle legislation. This Act provides all drivers and
conductors to obtain a licence. The registration certificate is valid for fifteen years from the
date of registration and can be renewed for another five years.

This article gives an overview of the Motor Vehicle Act, 1988, its amendments, Supreme Court
case laws, New Amendment Act and Rules, and essential parts of the Act with Motor Vehicle
Act penalties. Let us go through each aspect in detail below:

An overview of the Motor Vehicle Act, 1988

The Motor Vehicle Act is a law relating to torts that is founded on the concept that every injury
has a remedy. At this point, the idea of compensating and giving damages comes into action.
The Motor Vehicle Act of 1988 has been regarded as a welfare law aiming at offering relief to
those who have been harmed. There existed the Motor Vehicle Act of 1939, which combined all
motor vehicle legislations, but it had to be regularly amended in order to be updated. With
advancements in road transport technology and road network growth, as well as changes in
passenger transport patterns, it was necessary that the Act was revised to cover all new
methods relevant to motor vehicles.

This Motor Vehicle Act is mainly concerned with granting relief to innocent people on the road
who are frequent victims of accidents and then find themselves without a claim to the
compensation that they should normally receive. All vehicle drivers must have a driving licence
under this Act. This also requires the registration of a vehicle under the Act, which has a 15-
year validity duration and can be renewed for another 5-year period. The Motor Vehicle Act of
1988 includes not just licencing and registration, but also other aspects of road transport
vehicles.

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Motor insurance is required to have at least third-party insurance in order to register and
drive a car on Indian roads. However, the New Motor Vehicle Act Of 2019 proposes a Rs.2000/-
fine, 3 months in jail, and community service for driving without insurance, as well as Rs.4,000/-
punishment for repeated offences. Car and bike insurance policies are offered on the Bajaj
markets portal and online platforms such as PhonePe, Acko, and others, and they provide
customizable policy formats, coverage limits, and outstanding customer care.

Objectives of the Motor Vehicle Act, 1988

The Indian Motor Vehicle Act of 1988 was established to solve the following issues:

Sticking to strict procedures for granting licences and calculating the validity period of
such licences.

To maintain road safety requirements, dangerous and explosive material transportation

rules, and pollution control measures.

To maintain the country’s rapidly growing quantity of personal and commercial cars.

To raise the amount of compensation available to hit-and-run cases.

To eliminate the time limit for traffic accident victims to file a compensation claim.

Offences covered under the Motor Vehicle Act

The following are the offences covered under the original Motor Vehicle Act that includes:

Driving without a licence,

Allowing someone without a licence to operate a vehicle owned by the vehicle owner,

Failing to possess all of the relevant documentation required to operate a motor vehicle
on Indian roads,

Driving without a permit if required,

Driving without a vehicle fitness report, driving without a registration certificate or R.C,

Operation of a vehicle by a minor,

Allowing an unauthorised individual to operate a vehicle,

Riding certain motor vehicles without a helmet,

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Driving without fastening the driver’s seat belt,

Exceeding the speed limit and rash driving,

Risky driving,

Driving against the flow of traffic in a one-way lane, and other violations are considered
offences under the Act.

Important Sections of the Motor Vehicle Act

The following are some of the most important provisions of the Motor Vehicle Act:

Section 3 of the Motor Vehicle Act

Section 3 of the Motor Vehicle Act deals with the necessity of driving licence, stating that-

A person cannot drive a vehicle in public unless they have a valid and authorised driver’s
licence. Furthermore, they are not permitted to operate any transport vehicle other than a
motor-taxi or a motor bicycle for personal use or to rent the same under any scheme unless
their driving licence allows them to.

The above-mentioned circumstances shall not apply to an individual when operating a motor
vehicle in India unless prescribed by the central government

Section 4 of the Motor Vehicle Act

Section 4 of the Motor Vehicle Act deals with age limitations, stating that-

No one under the age of 18 is permitted to operate a motor vehicle in public. However, driving
a motor vehicle with an engine capacity of less than 50cc is permitted when the individual
reaches the age of 16.

No one under the age of 20 is allowed to drive a public transportation vehicle.

No one will be awarded a learner’s or permanent driving licence to operate a motor vehicle of
the class for which they have applied unless they are qualified to drive.

Section 39 of the Motor Vehicle Act

Section 39 of the Motor Vehicle Act deals with the necessity for registration, which stated that-

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No person is permitted to drive a motor vehicle in a public place, and no owner of a motor
vehicle shall cause or let the vehicle to be driven in a public place by another person unless it is
registered and the vehicle’s certificate of registration has not been suspended or cancelled.

Section 66 of the Motor Vehicle Act

Section 66 of the Motor Vehicle Act deals with the necessity for permits, which stated that-

The owner of a transport vehicle cannot operate his vehicle in any public area unless it is
authorised and covered by a valid authorization.

Transport vehicles of the central or state government, local authorities, ambulances, fire
brigade, police vehicles, hearses, and those with a registered loaded weight of not more than
3000 kg are exempted from the permission.

Every educational institution bus requires a permit.

Section 112 of the Motor Vehicle Act

Section 112 of the Motor Vehicle Act deals with speed limitations, stating that-

No person must drive or allow a motor vehicle to be driven in any public place at a speed
exceeding the maximum speed or dropping below the minimum speed specified for the
vehicle under the Act.

No one is permitted to drive at high speeds and should not exceed the maximum set speed for
any motor vehicle.

If the state government or other authorities believe that it is important to restrict the speed of
motor vehicles for public safety or convenience due to the nature of the road, bridge, or other
suitable location, they may do so. This restriction is only in effect for one month and no longer.

Section 113 of the Motor Vehicle Act

Section 113 of the Motor Vehicle Act deals with weight limits and limitations on use, stating
that-

The conditions for the issuance of permits by the State or Regional Transport Authorities may
be prescribed by the state government. Overloaded vehicles must be prohibited or restricted
in any region or route.

It is prohibited to drive a vehicle without pneumatic tyres fitted.

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No one is permitted to operate any motor vehicle or trailer in any public place with

An unladen weight (i.e., not carrying a load) that exceeds the weight specified on the certificate
of registration, or

A laden weight (i.e., carries load) that exceeds the gross weight specified on the certificate of
registration.

When a driver or any person other than the owner of a motor vehicle drives an excess weight,
the court will assume that the offence was done with the knowledge or commands of the
owner of the vehicle driven.

Section 129 of the Motor Vehicle Act

Section 129 of the Motor Vehicle Act deals with the necessity of wearing head protection,
stating that-

While driving a motor vehicle in a public location, every driver is required to wear a helmet.
Headgear is just a helmet that protects a person from causing injuries in an accident. It is
securely fastened to the wearer’s head using straps or other fastenings supplied on the
helmet.

Section 130 of the Motor Vehicle Act

Section 130 of the Motor Vehicle Act deals with the requirement to provide a driver’s licence
and a registration certificate, stating that-

A police officer in uniform may ask a driver of a motor vehicle in any public location to view his
or her driving licence.

A police officer in uniform or a motor vehicle department officer may ask a conductor of a
motor vehicle in any public location to view his or her driving licence.

The registering authority or any other official of the motor vehicle department legally
authorised on this purpose should request insurance for the vehicle and the certificate of
fitness referred to as per Section 56 by the owner or person in charge of the vehicle.

If the driver of the vehicle has no certifications of all this possession are available within fifteen
days of the demand, he/she shall produce photocopies, duly attested in person or by
registered post to the officer who made the demand.

Section 140 of the Motor Vehicle Act

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Section 140 of the Motor Vehicle Act deals with the obligation to provide compensation in
specific circumstances based on the no-fault principle, stating that-

The Act compensates the aggrieved person in the event that the vehicle defendant, himself, or
the driver of any such vehicle causes death or permanent disability to the aggrieved party.
When a death or permanent disability occurs as a result of a motor vehicle accident, no-fault
liability is invoked.

The amount of compensation due for a claim under this Section is as follows:

If the accident results in the death of a person, a fixed payment of Rs.50,000/- is payable, and

If the accident results in the permanent disability of any person, a fixed sum of Rs.25,000/- is
payable.

The Act makes it clear that, regardless of whether the claimant or his heir or representative
committed wrongful conduct, carelessness, or default, the compensation under this Section is
not subject to any burden of proof on the claimant’s shoulders. This Section’s compensation is
controlled by no-fault liability.

If the victim is unaffected but an accident occurs, the vehicle’s owner is responsible for
compensating the victim and he is also responsible for any other Act that is enforceable at the
time of the incident.

The amount can be reduced from the compensation amount under Section 163A of the Act.
Section 163A of the Motor Vehicle Act
Section 163A of the Motor Vehicle Act deals with special provisions for compensation
payments based on a structured formula, stating that-

The owner of the authorised insurer’s motor vehicle is responsible for compensating the legal
heirs or the victim in the event of death or permanent disability caused by an accident
resulting from operating the motor vehicle.

The claimant does not have to prove or plead that the death or permanent disability for which
the claim is being filed was caused by any unlawful conduct, negligence, or failure of the
vehicle owner or vehicles in question or any other person.

Section 166 of the Motor Vehicle Act

Section 166 of the Motor Vehicle Act deals with the application for compensation, stating that-

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The claimant might file a claim with the Motor Accident Claim Tribunal for compensation.

An application for compensation arising from an accident can be made by:

Anyone who has been injured, or

The owner of the property damaged/involved in the accident,

A legal representative of the person who died in a road accident, or

An authorised agent of the injured party or

Legal representatives of the person who died in the accident.

The application must be filed on behalf of or for the benefit of all of the deceased’s legal
representatives.

Section 177 of the Motor Vehicle Act

Section 177 of the Motor Vehicle Act deals with the punishment of offences, stating that-

Anyone who violates the Act’s rules, regulations, or notifications is subject to a penalty of
Rs.100/- if the violation is committed for the first time. If the violation is for the second or
subsequent time, she/he has to pay Rs.300/- as a penalty.

Section 179 of the Motor Vehicle Act

Section 179 of the Motor Vehicle Act deals with disobedience of orders, obstruction and
refusal of information, stating that-

If no other penalty is provided for the offence,

Any person who willfully disobeys any laws directed by any person or authority under this Act
or

Any person who obstructs or discharges any functions or is empowered to discharge any laws
directed by a person or authority under this Act shall be punished with a fine that may extend
to five hundred rupees.

If no other penalty is provided for the offence,

Any person who is required or under this Act to supply any information wilfully withholds such
information, or

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Any person who gives information that he knows to be false or does not believe to be true
shall be punished with imprisonment up to one month or a fine of Rs.500, or both.

Section 181 of the Motor Vehicle Act

Section 181 of the Motor Vehicle Act deals with driving a vehicle under the requirement for a
driving licence and the age restriction related to driving a motor vehicle, stating that-

Any person who drives a motor vehicle without a licence prescribed under Section 3 of the act,
or

Any person who drives a motor vehicle while under the age restriction prescribed under
Section 4 of the Act.

The above-mentioned conditions are punishable by imprisonment for a maximum of three

months or a fine of Rs.1,000/-, or both.

Section 184 of the Motor Vehicle Act

Section 184 of the Motor Vehicle Act deals with driving dangerously, stating that-

Any person who drives a motor vehicle at a dangerous speed or in a dangerous manner to the
public, taking into account all circumstances of the case, including the nature, condition, and
use of the place where the vehicle is driven and the amount of traffic that actually exists at the
time,

If the above-mentioned offence happens, then the person shall be punished for the first
offence with imprisonment for six months or a fine of one thousand rupees, and for the
second or subsequent offence if committed within three years of the previous offence with the
imprisonment of 2 years or fine of 2000 rupees or both.

Section 185 of the Motor Vehicle Act

Section 185 of the Motor Vehicle Act deals with drunk and driving or a person who is under
influence of drugs, stating that-

Any person who is driving or attempting to drive a motor vehicle-

Any person who has consumed alcohol in excess of 30 milligrams per 100 millilitres of blood as
determined by a breath analyzer test, or

Any person who is under the influence of a substance to the point of being unable to exercise
adequate control over the vehicle.

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For the first offence, a person who is inebriated or under the influence of narcotics is
penalised by imprisonment for a term of up to 6 months or a fine of up to 2000 rupees or
both.

If the offence is committed for the second or subsequent time, the individual is sentenced to
two years in jail or a fine of 3000 rupees, or both, if the offence is committed within three years
of the prior identical offence.

Motor Vehicle Act : amendments

The Motor Vehicle Act has undergone various amendments. They are as follows:

Motor Vehicle Amendment Bill, 2019

In July 2019, the Indian parliament enacted the Motor Vehicle Amendment Bill. The amended
Motor Vehicle Act, which went into effect in September of that year, included increases in a
number of fines for traffic violations, provisions for automobile manufacturers to recall
defective parts, and making vehicle owners criminally responsible for infractions committed by
minor drivers. The New Act has increased the punishments for a variety of offences in order to
stop drivers from acting badly on the road and improve overall road safety across the country.

Some important proposals in the Motor Vehicle (Amendment) Bill

The Bill makes Aadhar necessary for obtaining a driving licence and registering a vehicle.

For deaths such as hit-and-run accidents, the government would compensate the victim’s
family with Rs 2 lakh or more. Currently, the sum is only Rs.25,000.

In the case of juvenile traffic offences, the guardians or owners of the vehicle would be
held liable unless they could establish the offence was done without their consent or they
attempted to avoid it.

The minimum penalties for drunken driving has been raised from Rs.2,000 to Rs.10,000.

The Bill requires automated vehicle fitness testing.

The Bill enables the central government to legislate vehicle recalls if a problem in the
vehicle threatens the environment, the driver, or other passengers on the road.

The law establishes a National Road Safety Board, which would be appointed by the
central government by notification. The Board will advise the central and state
governments on all elements of road safety and traffic management, including motor

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vehicle standards, vehicle registration and licensing, road safety requirements, and the
promotion of innovative vehicle technology.

The Bill proposes a cashless treatment scheme for traffic accident victims during the
golden hour.

The 2016 Bill removed the liability limit for third-party insurance, which was set at Rs.10
lakhs for death and Rs.5 lakhs for grievous injury.

Motor Vehicle Amendment, 2020

The Motor Vehicle Act of 1989 has undergone several significant amendments that took effect
on October 1, 2020. According to the Amendment, drivers can store a softcopy of their driver’s
licence and other papers in their vehicle instead of carrying real paperwork. The Amendment is
for the millions of people who use the roadways on a daily basis. These changes were
implemented by the ministry of road transport and roads to ensure that traffic regulations are
followed, that digitalization is promoted, and that drivers are not harassed by police officers.

Some changes have been made to the traffic rules under the Amendment, 2020
Individuals can now save documents on their mobile devices under the New Amendment.
These will save them from carrying an unnecessary burden in the form of physical
documents. If a police officer requests a driver’s licence or other similar documents, the
person can now give their soft copy.

Since there will be no physical inspection of vehicle documents. If a traffic officer has to
cancel a driver’s licence, they can do so through the site, which will be updated on a
regular basis.

The driver’s behaviour will be watched, and the police officer’s identity will be updated on
the site, according to the official announcement. The information on the site would be
updated every time a driver or vehicle was examined.

On the government’s Digi-locker or m-parivahan, driver’s licences and other papers such
as registration certificates can be kept online.

By ensuring that the driver’s focus is maintained while driving, any portable
communications devices like cell phones can be utilised for route navigation.

The Motor Vehicle Act of 1989 imposes fines for persons who break traffic laws. This will
prevent the vehicle from doing repeated checks, reducing traffic congestion on the road.

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Those discovered disobeying traffic laws will receive an e-challan via the government’s
digital site.

After the driver’s licence is cancelled, the offender must report to the digital portal.

Latest Supreme Court judgements on the Motor Vehicle Act

United India Insurance Co. Ltd. v. Sunil Kumar and Anr., (2017)
The Supreme Court has held that an insurer cannot file a negligence claim. It is one of the
most recent Supreme Court cases on the Motor Vehicle Act, with the main issue being the
extent of Section 163A of the 1988 Act. This Act contains special provisions for the payment of
compensation based on a structured formula. The following are the case’s facts, issues and
judgment. The following are the facts, issues, and judgment of this case.

Facts of the case

The respondent, in this case, has filed a claim petition under Section 163A of the Motor Vehicle
Act, 1988, seeking compensation for injuries he incurred in a traffic accident on November 20,
2006.

After recording the evidence and hearing the parties, the tribunal issued a judgement dated
August 16, 2011, awarding an amount of Rs. 3,50,000/- plus interest at a rate of 7% per annum.

This outraged the insurance company, which filed an appeal based on the insurance firm’s
failure to comply with Section 170 of the Motor Vehicle Act, 1988. The appeal was then to be
heard by the Supreme Court.

Issues involved

In a claim procedure under Section 163A of the Motor Vehicle Act, the question arises as to
whether the insurer has the authority to present a defense/plea of negligence.

Judgement of the case

The court decided that in a case under Section 163A of the Motor Vehicles Act, 1988, the
insurance cannot offer any negligence defence on behalf of the victim, and Section 163A (2) of
the Motor Vehicles Act, 1988 makes this plan. Hence, the owner/insurance company will be
held liable for compensation.

Important points to note from this case

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Compensation under Section 163A of the MV Act is in the nature of a final award, and
adjudication is made without the need for proof of negligence on the part of the driver or
owner of the vehicles involved in the accident.

Section 163A (2) expressly states that the claimant is not necessary to prove fault. However, the
abovementioned clause does not expressly rule out the possibility of an insurer’s defence
based on the claimant’s carelessness. However, allowing an insurer to use such a defence while
considering such circumstances would be contrary to the legislative intent of Section 163A of
the Act.

Mukund Dewangan v. Oriental Insurance Company Limited, (2017)

According to the Supreme Court, a driver with a light motor vehicle licence can operate a
transport vehicle without an endorsement. The following are the facts, issues and judgment of
this case.

Facts of the case

The various vehicle categories for which licences were issued in this case were light motor
vehicles, medium goods vehicles, medium passenger motor vehicles, heavy goods vehicles,
and heavy passenger motor vehicles.

To make the process of acquiring a driver’s licence easier, categories such as the one described
above were removed. The transport vehicle was added as a new category. On November 14,
1994, the Motor Vehicle Act of 1989 was amended.

Form no. 4 of the 1989 regulations, which was used to submit a licence application, continued
to list four separate categories. Form no. 4 was only changed on March 28, 2001, when it was
amended to include the word “transport vehicle” and became compliant with the 1994
Amendment to the Motor Vehicle Act 1989.

Issues involved

The question is whether a driver with a light motor vehicle licence who is also driving a
transport vehicle of the same class has to get an endorsement to drive a transport vehicle.

Judgement of the case

The Supreme Court of India held that if a driver has a light motor vehicle licence and is driving
a transport vehicle of the same type, no further endorsement is necessary.

Motor vehicle insurance : rights of third party against insurers

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The Motor Vehicle Act of 1988 regulates motor insurance and any third-party liabilities and
rights that arise from it. However, Part XI of the Act deals specifically with third party rights.
Section 32D of the Insurance Act of 1938 also creates an obligation on part of the insurer to
provide for insurances dealing with third party risks.

In accordance with the MV Act, there are certain requirements to be followed for third party
insurance plans, which are as follows:
Section 146 of the Act also provides that the driver of the vehicle must always carry at least a
bodily injury liability and coverage for the liability of property damage. In the case of Govindan
V. New India Assurance Co Ltd., the court held that no clause in an insurance policy can
override the third-party insurance policy. This has been specifically mentioned as the insurance
sector for motors has two types of insurance namely the first party and the third-party
insurance.

Section 147(1): An insurer authorized to do so must provide for any damage to a third party’s
vehicle caused by the insured. These policies are required to cover any accident in accordance
with the value of the liability incurred. A certificate is to be granted in the prescribed format
containing particulars as prescribed and must be handed over to the insured.

Section 157: In accordance with this Section, the certificate of insurance can be transferred to
the new owner of the vehicle if and when the vehicle is transferred to a new owner. In order to
make the required changes with the authority in question, the transferee is required to apply
within 14 days to make the changes necessary.

In the case of Karnataka SRTC V. New India Assurance Company Ltd., the vehicle in question
was only given on hire in accordance to an agreement and was not transferred completely. It
was held by the Court that the insurer would be held liable even in case of an agreement of
lease or hire. In case of agreements for hire, cannot be excluded merely on the basis that there
is a case of extended contractual liability. Thus, even if the transfer of the vehicle takes place
even without providing notice to the insurer, the liability of the insurer will not cease.

The Competition Act, 2002

The Competition Act, 2002 is a legal framework enacted to govern commercial competition in
India, replacing the Monopolies and Restrictive Trade Practices Act of 1969. Aimed at curbing
practices detrimental to competition within the Indian market, this Act introduces several vital
definitions and features crucial for understanding its scope and intentions. Established
following the recommendations of the Monopolies Inquiry Commission, led by Justice KC Das
Gupta in April 1964, the Act emerged from the necessity to address the shortcomings of the
previous legislation, particularly its outdated definitions of monopolistic practices. Introduced

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in the Lok Sabha on August 6, 2001, the Competition Act, 2002, lays down specific definitions,
including 'Acquisition,' 'Cartel,' 'Position,' 'Predatory pricing,' and the 'Rule of reason.' These
definitions form the basis for understanding the Act's application and enforcement.

Key features of the Act encompass provisions against anti-agreements, abuse of dominant
position, and regulations concerning combinations, which pertain to acquisitions and
mergers. Central to the Act's enforcement is the Competition Commission of India, an
autonomous body responsible for preventing practices having adverse effects on competition,
promoting and sustaining competitive markets for the benefit of consumers, and advising the
government on competition issues. The Commission is empowered to take legal action against
those violating the Act's provisions, highlighting its critical role in fostering a competitive
economic environment in India.

Key Sections of the Competition Act, 2002

1. Section 3: Anti-competitive agreements: Section 3 of the Competition Act, 2002, explicitly

prohibits any agreement amongst enterprises or persons that causes or is likely to cause
an appreciable adverse effect on competition within India. This section broadly covers
any form of collusion or cartelization and is critical in maintaining market order.

2. Section 4: Abuse of Dominant Position: Knowing the potential harm of monopolistic

practices, Section 4 emphasizes that no enterprise should abuse its dominant position in
the market, particularly if such practices lead to the denial of market access, or impose
unfair or discriminatory conditions or prices in the purchase or sale of goods or services.

3. Section 5 & 6: Combinations and Regulation thereof: These sections detail the regulations
concerning mergers and acquisitions (M&As) that might have a considerable impact on
the market structure and competition. They necessitate that such combinations
exceeding certain financial thresholds must receive the nod from the Competition
Commission of India (CCI) to proceed, ensuring that they do not have an adverse effect
on competition.

Landmark Supreme Court Judgements

a. Competition Commission of India vs. Coordination Committee of Artists and Technicians of W.B. Film and
Television (2017)

This landmark case highlighted the principles of anti-competitive agreements under Section 3.
The Supreme Court upheld the decision of the CCI, which found that certain practices of the
Coordination Committee were in violation of Section 3 for restricting entry and determining

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the market terms for artists and technicians, stifling competition and innovation within the
sector.

b. Excel Crop Care Limited vs. Competition Commission of India (2017)

In this case, the Supreme Court delved into the nuances of defining a 'cartel' under Section 2(c)
and the application of Section 3(3). It set an important precedent by upholding the CCI’s
findings that companies had coordinated their actions in bidding processes, which constituted
cartel-like behavior designed to skew the competitive market environment.

c. Brigade Properties vs. Competition Commission of India (2018)

This case is instrumental in understanding the provisions related to combinations under

Section 5 & 6 of the Act. The Supreme Court underscored the importance of timely
notifications to the CCI regarding M&As, reinforcing the principle that pre-emptive measures
are vital in preventing potential adverse effects on competition.

These judgements collectively elucidate the Supreme Court's role in clarifying and enforcing
the provisions of the Competition Act, 2002, ensuring that it meets its objectives of promoting
and sustaining market competition.

Conclusion

The Competition Act, 2002, serves as the cornerstone for preserving competitive markets in
India. Through its comprehensive provisions covering anti-competitive agreements, abuse of
dominant position, and regulation of combinations, it ensures a level playing field for all
market participants. The Supreme Court of India, through its judgements, has played a crucial
role in interpreting the Act, thus reinforcing the principles of fairness and competitive equity in
the Indian market landscape. As markets evolve, the Act, coupled with judicious interpretation
by the judiciary, will continue to safeguard the interests of consumers and ensure healthy
competition

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 Miscellaneous Topics
(Torts)

Law Of Torts And Consumer Protection

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DECEIT
Deceit is a false statement of fact made by A, knowingly or recklessly, with intent that it shall be
acted upon by B, who does act upon it and, thereby, suffers damage (Winfeild). In Peasley V.
Freeman: The principle of Deceit was extended from contracts to torts. The defendant assured
that X was trustworthy to give a credit of some money. It was false, P gave credit and suffered
a loss and sued D. Held, D liable.

Essentials of Deceit.
Representation as fact, of that which is false.

Knowledge or Recklessness that it is false.

Intention that the plaintiff could act upon the statements.

The plaintiff should sustain damage.

1. False Statement of Fact: By silent representations A cow with some infection or disease
was sold in the market. P sued D. held: D is not liable if he did not know the disease at the
time of selling. In a case the court held mere silence did not amount to deceit.

2. Promises: Mere promise will not amount to deceit. Scores of promises are made which
are never kept up.

3. Misstatement of fact: The Edginton V. Fitzmaurice, the company raised debentures. It

stated in the prospectus that the debentures money was to be utilized to purchase vans.
But in reality the money was used to pay off outstanding loans. Held: Deceit.

4. Opinions: Mere opinions do not amount to deceit. These must have been made with
knowledge that the statement is false, or, the statement must have been made with
carelessness.

Derry V. Peek: A company was running trams using animals. Directors issued a prospectus
stating that the company had powers to use steam in propelling their trams. In fact, the grant
to use steam was subject to the consent of a Board of Trade. The company had believed that
the consent of Board of Trade was merely a formality. But the Board refused to give its
consent. The company went into liquidation. Some shareholders sued the company. Held: No
deceit. There was an honest mistake in viewing that the consent of Board was a formal
procedure. A false statement made carelessly and without reason to believe to be not true was
"not fraud". This decision is criticized by judges and Jurists.

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Candler V. Crane: The defendant, an Accountant prepared accounts of the Company and
induced the plaintiff to invest money. B invested money. The company had given a misleading
picture, but the Court held that it was a mere careless misstatement. Hence P failed. It was
held that mere careless statements were not actionable unless there was a contractual or
fiduciary relationship.

Nacton V. Lord Ashburton: The error in Derry V. Peek was exposed in this case. Here
circumstances showed a duty to be careful. In the particular circumstance of Derry V. Peek
there was no duty to be careful. In this case, Solicitor, negligently but without any fraud
induced his client to release part of Mortgage security. Security became insufficient and the
plaintiff suffered. He sued the solicitor. Solicitor was held liable.

Exceptions: Derry V. Peek is not applicable to:

1. Statutory provisions as in Companies Act. Eg.: in respect of prospectus, directors and
auditors are liable.

2. Cases of Estoppel.

3. Cases where there is a contractual duty to take care.

4. Cases where there is an Implied warranty of another in agency.

Rule in Hadley Byrne: As regards liability for careless statements the leading case is Hadley
Byrne and Co. Ltd., V. Heller and partners Ltd., P, an advertising agency, wanted to know the
trustworthiness of Easipower Company. It asked its bankers about this. The Bankers referred
to Easipower company's bankers. "Heller and partners Ltd", who gave favorable reports. They
had written as "confidential. For your private use. Without responsibility on the bank or its
officials". This was passed on to Hadley Byrne, who relied on and allowed credits and suffered
heavily when Easipower Company went into liquidation.

Held: The Bank was not liable. The bank did not know to whom the information would be
passed on. Further, it had taken no responsibility whatsoever. Hence, not liable. There was no
deliberate misstatement to make it a deceit.

DEATH IN RELATION TO TORTS

The general rule in common law is 'Actio personalis moritur cum persona' (personal cause of
action, dies with the person). This has been abolished in England by the Law Reforms Act 1934.
The position in civil cases is that the right or liability survives, to the successor. Hence, on the

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death of the injured person, his legal representatives may sue or continue the suit. Similarly, if
the defendant dies his legal representative becomes liable.

1. Death of Plaintiff or Person Wronged.

a) The leading case is Rose V. Ford. G, a girl of 23, was severely injured in an accident
caused negligently by D. She was admitted to the hospital and treated. After two years,
her legs were amputated. Four days later she died. Her mother sued D on
(i) Loss of service
(ii) Pain and suffering
(iii) Diminution in the expectation of life.
Held, that P, had a right to sue. D was held liable on all the above three counts.
Compensation was awarded under each count.
b) Rule in Bake V. Bolton. Plaintiff P and his wife W were travelling on the top of a stage
coach of D. Owing to the negligence of D, the coach overturned. P was bruised and W
sustained severe injuries and after a month died.
Held, P was entitled to recover for bruises; P could also recover for the loss of services, of
his wife, up to her death.

2. Death of Wrong-doer at common law no action could be brought but this has been
abolished by the law Reforms Act 1934. In India, an action may be maintained against the
legal representatives or heirs or executors of the deceased defendant. The action should
be taken within the period of limitation i.e. One year. The general rule is that if a suit is
filed against the defendant and if he dies pending the suit, the suit abates and could not
be continued against the heirs or legal representatives. Suits for slander, libel, false
imprisonment, assault, battery etc, fall into this category. In others, the suit may be
continued.

Discharge of Torts.
The right to sue for torts is discharged by:

1. Death of one of the parties: same as above

2. Waiver: When there are two or more remedies available for torts, the plaintiff may waive
one and select the other. He cannot pursue both or take one after the other. If A is
deprived of his goods by B, A may sue for tort of conversion, in the alternative he may sue
for the price of the goods. He may elect one or the other.

3. Accord and satisfaction: Accord is agreement and satisfaction is consideration or money

payment. Such an agreement discharges of tort.

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4. Release: This is the giving up of the right of action in tort. But, it should not be in
ignorance of the rights or by mistake.

5. Acquiescence: This is acceptance and results in discharge of tort.

6. Limitation: Suits barred by Limitation, are automatically discharged. In India, the period of
limitation is one year for Libel, false imprisonment, malicious prosecution etc.

REMEDIES IN TORTS
The various remedies available for Torts are:

Damages.

Injunctions

Restitution of Property

Extra Judicial Remedies. These may be discussed with some details.

1. Damages.
In Tort, damages refers to the pecuniary (Money) Compensation that is determined by
the court (Unliquidated Damages). The defendant is liable for the damage caused to the
plaintiff if the damage is the direct consequence of the act of the defendant. Scott V.
Shepherd: Wagon Mound case etc., Kinds of damages: There are four kinds of damages:
1) Nominal (2) Substantial (3) Exemplary and (4) Contemptuous.

2. Nominal damages are awarded in circumstances where only a right is established (e.g.
Assault). This may not even meet the expense incurred for suing.

3. Substantial damages are awarded to fairly compensate the plaintiff for his injury and
suffering. The court considering the nature of the case, awards compensation which is
fair and reasonable.

4. Exemplary damages: Where it is not possible in calculate the compensation in terms of

money. The court may take into account the conduct, motive and other circumstances
and award aggravated (high) damages. This is exemplary. The objective is to make the
wrongdoer an example and to deter and punish such persons. The amount awarded is
much more than the loss suffered.
Huckle V. Money: D, a Government servant entered the house of P under a nameless
search warrant and made the search. P sued D. Held: D liable. As entering without proper
authority amounted to an attack on the liberty of P, the court awarded exemplary

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damages.
In Merzett V. William: The bank D, had without reason, refused to honour a cheque. P the
drawer sued D. Held: D liable to pay exemplary damages.

5. Contemptuous Damages: In "Contemptuous damages", the court finds that the plaintiff
should not have brought an action, as the matter was so "Trifling". The court forms a low
opinion of the plaintiff but, to protect his right, it awards one rupee or some small
amount. This is called contemptuous damages.
Cases of trespass on land, trespass to person are examples.
The rule is "De minimis non curet lex". (Law does not take cognisance of trifles).

Extra-judicial Remedies.
The Remedies are:
i) Distress Damage feasant: This is an extra-Judicial remedy. A person in possession of land
may distress (means detain) a feasant for the damage it has done. He has the authority to
seize and detain the animal until compensation is paid to him. He may release it after the
compensation is paid.
"Feasant" means animal or chattel. Examples are the stray animals, Cow, Ox, Horse, etc.,
chattel may be a Road engine.
The animal is to be detained when it is creating a trespass. It should not be seized by a "Hot
Chase".
The person who detains must take care of the animal as a reasonable man. He must provide
proper food, shelter, water etc., to the detained animal. He has no right to sell or to use the
animal. When compensation is paid, he should release the detained animal or chattel.
ii) Abatement of Nuisance: same as above
iii) Expulsion of Trespasser: same as above
iv) Recaption of goods: Retaking of goods with a right to take.
v) Re-entry on land: same as above

Capacity to Sue and to be Sued

The general rule is that all persons are entitled to sue and to be sued in tort. However, this rule
is subject to several exceptions. The legal capacity to sue or to be sued may be discussed
under the heads:

1. Convict: A convict may sue for torts to his person and property. In England, the rule was
that a convict serving the sentence could not sue; but this has been abolished in 1948.
Hence, a convict may sue. This is the position in India also.

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2. Minor: Right to sue: The general rule is that an infant may sue, through his next friend,
and there is no bar. However, a child en vetre sa mere (in the womb) cannot maintain an
action for injuries sustained when in the womb.

In a case, W a pregnant woman was injured in a Railway accident and later gave birth to a
deformed child, held, that the Railway company was not liable. Minor may be sued in tort and
he is liable. Minors have been held liable for assault, false imprisonment, libel, slander,
nuisance, injuries to neighbors etc. Minors cannot take advantage of their minority in cases of
deceit. A minor is not liable for violation of contracts, but in tort he is liable. The father
becomes liable for the tort of the minor, if the son was acting on behalf of the father or "in the
course of his employment". Otherwise, the father is not liable. If a father supplies an air-gun to
his son and negligently allows him to fire at a person to hit on his eye, the father is liable.
(Newton V. Edgerley).

3. Married Woman:

i) Right to sue: Husband and wife are considered as one under common law in England and
hence a married woman could not sue without her husband. But, this has been amended by
the law Reforms Act of 1935. She may sue in her own capacity as a feme sole. She may sue her
husband. In Curtis V. Wilcox, W sustained injuries caused by H's negligent driving of his car. W
later married H but sued for damages, Held, H liable.

ii) Liability of married woman: In England at common law husband and wife were to be sued
for the tort of the wife. She could not be sued alone. The Married Woman's property Act has
changed the above position and according too it, the wife could be sued alone. Damages are
payable from her separate property. The husband is not liable for her torts. In India, the
position is the same under the Married Women's property Act. The Wife may sue or be used
for tortious obligations as a feme sole.

4. State: The State is a legal person and can sue and be sued. It is vicariously liable for the
tortious acts of its servants done during the course of their employment. The injured
party may sue the State and recover compensation.

Historical sketch: In England, at common law the rule was that "the king can do no wrong" and
the king or his servants could not be sued. However, the Crown Proceedings Act has fixed
liability & hence the state may sue and be sued. Before the Constitution, the Secretary of State
was liable for tortious acts. (Govt. of India Act 1935).

In India, the constitution of India in Art. 300, lays down that the state may sue and be sued.

Leading cases:

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a) Peninsular and oriental Steam Navigation Co. V. Secretary of State (1861) A servant of P, was
travelling in a coach through the Govt's dockyard. Due to the negligence of D's servants, a
heavy piece of iron carried by them fell and the horse of the coach was injured. P sued D. It
was held that the maintenance of the dockyard was a non-sovereign function, and hence, the
secretary of State was liable.

b) Rup Ram V. State of Punjab. P, a motor cyclist was seriously injured when the driver of a P. W.
D. truck dased against him. It was held that the Govt. was liable. The Govt's argument that at
the time of the accident, the driver was carrying materials for the construction of a bridge and
that this was a Sovergin function and hence, the State was not liable, was rejected by the
court.

c) State of Rajastan V. Mrs. Vidyawati. Vidyawati's husband died of an accident caused by the
Govt. driver who was driving negligently the Govt. Jeep from the garage to the office.
Vidyawathi sued the Govt. for compensation. Held, State liable.

d) Kasturilal v. State of U.P. A was arrested on suspicion of having stolen gold. Gold seized from
him, was deposited in police Mal khana. A was acquitted. In the meanwhile, the Head
Constable had stolen the gold and escaped to Pakistan. 'A' sued the Govt. for the return of the
gold or for compensation. Gajendragadkar J, held, that the State was not liable. Reasons: i) The
police Officers were within their statutory powers. ii) The Authority of the police in keeping the
property (gold) was a 'Sovereign function’. Held: Govt. not liable for the act done in the
exercise of sovereign function. Comment: This decision is not satisfactory as the concept of
Sovereign function is extended beyond limits. The Supreme Court itself has suggested that the
remedy is to make a suitable law to give protection to individuals in such cases. No such law
has been made so far. Basavva V. St. of Mysore (1977): In a case of theft, property worth Rs
10,000/- was recovered and kept in police custody. This was stolen from custody. The Supreme
Court held that payment should be made to the owner, who had claimed the property. This is
an improvement over Kasturilal's case.

Act of State. This is an exercise of power by the Executive, as a matter of policy, in its relation
with another State or aliens. In such a circumstance, the State claims immunity from the
jurisdiction of the court, to decide. Such an act of the representative of the state may have the
authority of the state or the state may ratify such an act.

Secretary of state V. Kamachi Bai Saheba: The Rajah of Tanjore, an independent sovereign, died
leaving no male heirs. The East India Company declared that as there were no male heirs, the
Raj lapsed to the British Govt. The widow Kamachi Bai sued the company. The Privy Council
held that it was an 'Act of State' and hence, there was immunity. Hence, she failed. Buron V.
Denman: P sued D, the captain of the British Navy for releasing the slaves and burning their

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camps belonging to P. This act of D was ratified by the British Govt. Held, this was an act of
State, and hence, P failed. Exception: There is one exception. There is no act of state between a
sovereign state and its own subjects.

5. Corporations

Right to sue: A Corporation is a legal person and many sue for any tortious act like libel,
wrongs affecting its property or business, for libel of Corporation officials may sue in their
individual capacity.

i) Liability: The corporation may be sued and is liable for torts, committed by its agents or
servants, during the course of their employment. The rule of vicarious liability applies, there
were some doubts regarding whether the corporation is liable for the 'Ultra Vires' act of its
servants. The general rule is that in such a case, the corporation is not liable. The leading case
is Poulton V. London Railway Co. the plaintiff p was arrested by the station master of the
corporation D. The reason was that P had refused to pay, the freight of the horse. D had
authority to arrest persons who did not pay his fare, but not for nonpayment for goods or
animals. Here D had acted ultra vires (beyond powers) in arresting P for non-payment of
freight. Held D not liable. In Pillai V. Municipal Council, P's dog was killed by the Municipality D,
in destroying stray dogs. P sued Held, D liable the defense by D that it was an ultra vires act of
the servants was rejected.

ii) Trade Unions In a leading case (Taff Vale Railway Co.) the House of Lords had held that the
trade unions could be sued for the wrongful acts of its officials. To counter this the English
Parliament, passed the Trade Disputes Act 1907. Which provided that the courts have no
jurisdiction to entertain suits against the trade union, its officials or members. In India, under
the Indian Trade Union Act 1926, a Trade Union, may or may not be registered, if registered, it
may be sued in its registered name. If not so registered one or more members may be sued on
behalf of the union. The regd. trade union and its officers and members are exempted under
Sec. 18 from certain torts, which are done in furtherance or contemplation of a trade dispute.

SUBJECT | Law Of Torts And Consumer Protection 8 of 8