Introduction to Remedies in Tort Law

In tort law, the remedies available to an injured party can be classified into two categories:

1. Judicial Remedies: These are remedies granted by a court in a suit filed by the
injured party against the wrongdoer. The court typically awards damages, but other
forms of judicial remedies can also be granted, such as:
o Injunction: A court order requiring the defendant to do or refrain from doing
a particular act.
o Restitution of Property: The return of property wrongfully taken or withheld
by the defendant.
2. Extra-judicial Remedies: These are remedies where the injured party takes matters
into their own hands, acting without court intervention. Examples include:
o Expulsion of a trespasser
o Re-entry on land
o Abatement of nuisance

Judicial Remedies

 Damages: The most common judicial remedy, where the court compensates the
injured party for the loss suffered.
 Injunctions: These can be prohibitory (stopping someone from doing something) or
mandatory (requiring someone to do something).
 Restitution of Property: If property is wrongfully taken, the court may order its
return to the rightful owner.

Extra-Judicial Remedies

These remedies allow the injured party to act independently in addressing the wrong. They
are often seen in situations like:

 Expulsion of Trespasser: The right to remove someone unlawfully on your property.

 Re-entry on Land: The right to re-enter land when someone has unlawfully occupied
it.
 Abatement of Nuisance: The removal or prevention of a nuisance without involving
the court.

Damages in Tort

Damages in tort law refer to the compensation provided to the injured party for the harm
caused by the defendant’s actions. It is important to note that legal damage (the injury to the
legal right) does not necessarily equate to actual physical or pecuniary damage. Legal damage
arises when there is a violation of the plaintiff's rights, even if no tangible loss is suffered.

Types of Damages

1. Nominal Damages: Awarded when the plaintiff's legal right has been infringed but
no substantial loss is suffered. These are symbolic awards recognizing the violation of
a right without actual harm.
 2. Contemptuous Damages: A token amount awarded when the court considers the
plaintiff’s claim to be trivial or undeserving of full compensation, despite the fact that
harm was caused.
3. Compensatory Damages: Aimed at compensating the plaintiff for the actual loss
suffered. This is the most common type of damages, covering both material and
immaterial losses.
4. Aggravated Damages: These are awarded when the defendant’s conduct is
particularly egregious or insulting, causing additional harm to the plaintiff’s feelings
or reputation. These damages go beyond compensating for the actual loss.
5. Exemplary (Punitive) Damages: These damages go beyond the plaintiff’s actual loss
and are awarded to punish the defendant for particularly outrageous conduct, with the
aim of deterring similar actions in the future.
6. Gain-Based Damages: These damages aim to strip the defendant of the gains made
through the tortious act, rather than compensating the plaintiff directly.

Specific Damages for Personal Injury

In cases of personal injury, compensation can cover:

 Pain and Suffering: Compensation for the physical pain and suffering caused by the
injury, including emotional distress.
 Pecuniary Loss: Any actual financial loss or expense incurred by the plaintiff due to
the injury.
 Loss of Future Income: If the injury leads to a reduction in the plaintiff’s ability to
work, compensation can be awarded for the probable future loss of income.

Important Considerations:

 Compensation is not limited to physical pain; it also includes mental suffering due to
the injury or the fear of a shortened life expectancy.
 The severity and duration of pain, as well as the impact on the plaintiff’s quality of
life, are critical factors.
 If the plaintiff dies before filing a claim, their legal representative may pursue
compensation for the pain and suffering endured before death.

General Principles of Damages

 Once-and-for-all Rule: Damages should be assessed and awarded once, covering all
losses sustained up to that point. There are exceptions, such as cases involving distinct
rights violations or continuing injuries.
 Lump Sum Award: Damages are generally awarded as a single lump sum rather than
in installments, except in certain cases involving future losses or recurring harm.

By understanding these concepts, parties involved in tort cases can better navigate the
available remedies and the types of damages that may be awarded.

Key Case Summaries on Damages and Tort Law

1. Laxminarayan v. Sumitra Bai (AIR 1993 MP 86)

 o Summary: In this case, the defendant lured the plaintiff, a girl, into a sexual
relationship under the promise of marriage. After the girl became pregnant, the
defendant refused to marry her, leading to physical pain, social stigma, and the
diminishing prospects of marriage. The court held that the mere acquittal of
the defendant in the criminal case did not bar an action under tort law.
o Key Points: Compensation was awarded for physical and emotional distress,
social stigma, and the likely negative impact on her future marriage prospects.
2. Rehana v. Ahmedabad Municipal Transport Service (AIR 1976 Guj 37)
o Summary: A 16-year-old girl was involved in an accident, resulting in
permanent incapacity with a limp in her leg.
o Key Points: The court awarded compensation for the permanent disability,
considering both the physical injury and its lifelong impact on her quality of
life.
3. Klaus Mittelbachert v. East India Hotels Ltd (1972)
o Summary: Klaus Mittelbachert, a 30-year-old co-pilot, suffered severe
injuries after diving into the shallow swimming pool at the Oberoi Inter-
continental Hotel in New Delhi. The accident caused paralysis and required
long-term medical treatment and rehabilitation.
o Key Points: The court found the hotel negligent in maintaining the pool's
depth and awarded compensation for pain, suffering, and medical expenses.
Additionally, the court emphasized the need for exemplary damages due to the
hotel’s failure in ensuring safety, especially given its high-end service.
4. Karnataka SRTC v. Krishna
o Summary: In a bus collision, two passengers, aged 26 and 40, lost their left
arms. They filed for compensation for the loss of their hands and earning
capacity.
o Key Points: The court awarded compensation based on the loss of earning
capacity and the provisions of the Workmen’s Compensation Act. The sum
included medical expenses, loss of wages, and special damages due to
permanent disability.
5. Donnelly v. Joyce
o Summary: A 6-year-old minor injured in an accident was entitled to recover
damages for the loss of wages of his mother, who had to stop working to care
for him during his recovery.
o Key Points: The court ruled that the plaintiff could claim compensation for
the lost wages of a caretaker, irrespective of whether there was a legal or
moral duty to pay for such services.
6. Effect of Receiving Disablement Pension or Insurance Money (Perry v. Cleaver
1969)
o Summary: In cases where the claimant has received accident benefits like a
disablement pension or insurance money, the question arises whether such
payments should be deducted from the compensation awarded by the court.
o Key Points: English law states that such benefits should not be deducted from
tort compensation, as this would disadvantage those who did not insure
themselves and indirectly benefit the tortfeasor.
7. Damages for Shortening of Life Expectancy
o Summary: Compensation can be claimed for the shortening of life expectancy
due to negligence. If the injured party dies before filing the claim, the right to
claim compensation passes to their legal representatives.
 oKey Points: The compensation includes pain and suffering, loss of earnings,
and the loss of expectation of life between the time of injury and death.
8. Benham v. Gambling (1941)
o Summary: The House of Lords dealt with the death of a healthy 2.5-year-old
child and set principles for calculating damages for the loss of a young child’s
life.
o Key Points:
1. Compensation should focus on the potential for happiness in the child's
life, not just the length of life lost.
2. Damages should be modest for children, considering the uncertainty of
life and happiness.
3. The child’s socio-economic background should not influence the
amount of compensation.
9. Gobald Motor Service Ltd. v. Veluswami (AIR 1962 SC 1)
o Summary: A doctor, Rajarathnam, aged 34, died three days after an accident.
His family claimed compensation for his death, which was attributed to the
negligence of the defendant.
o Key Points: The Supreme Court awarded compensation for mental suffering
and loss of expectation of life, along with special damages for the loss of
income and the pain caused by the accident.

Key Legal Principles in Tort Damages:

 Loss of Earning Capacity: Compensation can include the loss of earning capacity in
cases of permanent disability, as seen in the cases of Karnataka SRTC v. Krishna
and KSRTC vs Krishna.
 Exemplary Damages: In certain cases, especially involving negligence by high-end
service providers like Klaus Mittelbachert v. East India Hotels Ltd, courts may
award exemplary damages to deter negligent behavior.
 Attendant Expenses: The cost of hiring a caretaker or nurse due to injury can be
claimed as part of damages, as seen in Donnelly v. Joyce.
 Impact of Pension and Insurance Benefits: Payments received through insurance or
pension in accident cases do not reduce the compensation in tort law, as confirmed in
Perry v. Cleaver.
 Shortened Life Expectancy: In cases where an injury shortens life expectancy, the
victim or their legal representatives can claim damages for the pain and suffering
endured, as well as for the loss of future earnings. This principle was explored in
Gobald Motor Service Ltd. v. Veluswami and Benham v. Gambling.

These cases highlight the wide range of compensatory elements that courts consider in tort
cases, from pain and suffering to financial losses, as well as the recognition that tort law aims
to address both physical and emotional harms caused by negligence or intentional
wrongdoing.

Damages under the Fatal Accidents Act, 1855

The Fatal Accidents Act, 1855 allows family members of someone who has died due to
someone else’s mistake (wrongful act or neglect) to claim compensation. This compensation
is for the loss suffered by the family (spouse, children, and parents) because of the death.

Key Points:

 If someone's wrongful act causes a death, the person responsible can still be sued even
if the death is considered a crime.
 The compensation is for the wife, husband, parents, and children of the deceased.
 The compensation is calculated based on the loss the family suffers and is paid to
them through the deceased’s legal representative.

How Compensation Is Calculated

There are two main ways to calculate the compensation for a family’s loss after a person’s
death:

1. Interest Theory

 Idea: The family is given a lump sum amount that will earn interest, and the interest
should be enough to replace the monthly loss they suffer.
 Example: If the loss is Rs. 1,000 per month, the lump sum amount given should earn
Rs. 1,000 each month through interest.
 Problem: This method doesn’t account for inflation (the increase in prices over time)
and assumes the family will make a good investment, which might not always be true.

2. Multiplier Theory

 Idea: The yearly loss to the family is calculated, and then multiplied by a number
(called a multiplier) which depends on factors like the age of the deceased and the
dependents. This gives the total compensation.
 Example: If the deceased was earning Rs. 4,000 per month and Rs. 2,000 of that was
for the family, the yearly loss would be Rs. 24,000. The multiplier could be 12 (for 12
years of loss), and the compensation would be Rs. 24,000 × 12 = Rs. 2,88,000.

Examples from Case Law

1. Municipal Corporation of Delhi v. Subhagwanti:

o Case: A clock tower fell, killing three people. The compensation was based on
their monthly earnings, and the total was calculated using a multiplier of 15
years.
o Compensation: The three families received compensation of Rs. 7,200, Rs.
9,000, and Rs. 27,000 based on the earnings of the deceased.
2. T. Gajayalakshmi v. Secretary, Tamil Nadu Govt.:
 o Case: A young man died due to electrocution. His family lost Rs. 2,666 per
month (2/3rd of his income). The amount was calculated for 12 years,
resulting in Rs. 3,84,000.
o Total Compensation: Rs. 3,99,000, including additional compensation for the
loss of companionship.

Other Important Points

 Deductions: Sometimes, courts reduce the compensation to account for uncertainties,

like the chance that the deceased or the family member might have died early.
 Household Services: If the deceased was not earning (like a housewife), the court
still recognizes the value of the work they did at home (like cooking, cleaning), and
compensates the family for having to replace that.
 Insurance & Benefits: If the family gets money from insurance, provident fund, or
gratuity, it does not reduce the compensation they can get under the Fatal Accidents
Act.

Injunctions

An injunction is a court order that either compels someone to do something (mandatory

injunction) or prevents them from doing something (prohibitory injunction). It’s used when
other remedies, like damages, aren't enough to resolve a situation.

There are two types of injunctions:

1. Temporary Injunction

 What is it? A temporary injunction is issued before the case is fully decided. It is
meant to preserve the situation as it is until the court reaches a final decision.
 Example: If someone is about to destroy property before the case is decided, a
temporary injunction may be issued to stop them.

2. Perpetual Injunction

 What is it? A perpetual injunction is a permanent order after a full hearing of the
case. It orders the defendant to stop a certain act permanently or to do something
permanently.
 Example: After a full trial, the court may order someone to permanently stop
trespassing on your property.

Types of Injunctions

1. Prohibitory Injunction
  What is it? This type of injunction forbids someone from doing something that would
harm the plaintiff’s legal rights.
 Example: A court might order someone to stop building a structure that blocks your
light or view.

2. Mandatory Injunction

 What is it? This requires someone to do a specific act, such as removing something
that is causing harm.
 Example: A court might order someone to demolish a wall they built, which blocks
your right to light.

Specific Restitution of Property

This remedy is used when someone is wrongly dispossessed of property (like land or goods).
The court orders the return of the specific property to the rightful owner.

Example: If someone takes your land without your permission, you can ask the court to
return the land to you under this remedy.

Classes of Action

There are different types of actions in law based on the nature of the case:

 Real Actions: These are actions where the plaintiff seeks to recover land or property.
 Personal Actions: These are actions where the plaintiff seeks to recover money,
goods, or compensation for personal injuries. Examples include debt, trespass, and
detinue.
o Detinue: A legal action to recover goods wrongfully held by someone.
o Replevin: A legal action to recover goods that were taken wrongfully.
o Trover: A claim for damages when someone unlawfully converts someone
else's property.

Extra-Judicial Remedies

These are remedies that a person may take on their own, without going to court. The law
allows people to take actions to protect their rights directly.

1. Self-Defence

 What is it? If someone is threatening harm, a person can defend themselves using
reasonable force.
  Example: If someone attacks you, you are allowed to protect yourself within limits
set by the law (Sections 96-100 of the Indian Penal Code).

2. Expulsion and Re-entry

 What is it? If someone is trespassing on your property, you may remove them, as
long as the force you use is reasonable.
 Example: If someone is unlawfully on your land, you can ask them to leave and even
use force to remove them if necessary.

3. Re-caption

 What is it? If someone is holding your movable property without your permission,
you can recover it.
 Example: If someone takes your car and refuses to return it, you can take it back if
the possession was wrongful.

4. Abatement of Nuisance

 What is it? If someone is causing a nuisance (like blocking a public road or causing
excessive noise), you can remove the nuisance under certain conditions.
 Example: If someone builds something that obstructs your access, you may remove
the obstruction without going to court.

5. Distress Damage Feasant

 What is it? If someone's animals are damaging your property, you have the right to
seize those animals until the damage is compensated.
 Example: If cattle are grazing on your crops, you can seize them and hold them until
the owner compensates you for the damage