1. Distinguish between Tort and Crime and Tort and Contract.

Tort and Crime: Though the ‘tort’ and ‘crime’, apparently, seem to resemble each other, but they
are two distinct terms. The same facts may give rise to liability in both tort as well as crime, but
the two differ in respect of principle and procedure and in such circumstances both are violations
of rights in rem.

Tort Crime
1. A tort is a wrongful act that injures A crime is a wrongful act that the State
or interferes with another’s person has identified as a crime.
or property.
2. A tort is a civil court proceeding. A criminal case is a criminal court
proceeding.
3. There are two parties: Defendant There are two parties: Accused and the
and the Plaintiff. State (for victim)
4. The charges are brought by the The charges are brought by the
plaintiff. Government.
5. Tort is a wrong in pesonam Crime is a wrong in rem (against the
(against individual) society as a whole)
6. Compensation is awarded for tort. There is punishment for crime.
7. There is mental element (malice) ‘Intention’ is an essential element in
in tortuous liability. Intention’ is criminal liability. An act without
not an essential component in tort, ’intention’ is not a crime.
except in the case of ‘battery’.
8. The injured party, at any case, may In certain exceptional cases, law does not
agree to a compromise with a tort permit a settlement in the criminal cases
feasor and withdraw the suit filed between the accused and the victim.
by him.
9. The onus of proof lies on The onus of proof lies on prosecution.
defendant.

Some torts are civil wrongs as well as crimes, they violate the individual rights as well as interest
of the society. As for instance, assault, battery and libel violate not only the rights of individual
but also the interest of society in maintaining peace and order therein. In such cases both the right
in rem and right in personam co-exist with each other. In these cases, the wrongdoer is liable to be
sued in civil Court as well as prosecuted in criminal Court, at the same time.
Tort and Contract:
Tort Contract
1. A tort results from the breach of A breach of contract results from the breach of duty
such duties which are not undertaken by the parties themselves.
undertaken by the parties, but
which are imposed by the law.
E.g., not to assault or defame

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 anybody.
2. Duties imposed by law under the In a contract, the duty is based on the privity of
law of torts are not towards any contract and each party owes duty only to the
specific individual or individuals, contracting party.
but they are towards the world at
large.
3. In an action of tort, the damages In a breach of contract, the damages may be
are always unliquidated. liquidated.

2. Explain 'donoghue V. Stevenson' as an exception to privity of contract.

Ans. The doctrine of privity in the common law of contract provides that a contract cannot confer
rights or impose obligations arising under it on any person or agent except the parties to it.
The premise is that only parties to contracts should be able to sue to enforce their rights or claim
damages as such. However, the doctrine has proven problematic due to its implications upon
contracts made for the benefit of third parties who are unable to enforce the obligations of the
contracting parties
Privity of contract occurs only between the parties to the contract, most commonly contract of sale
of goods or services. Horizontal privity arises when the benefits from a contract are to be given to
a third party. Vertical privity involves a contract between two parties, with an independent contract
between one of the parties and another individual or company.
If a third party gets a benefit under a contract, it does not have the right to go against the parties to
the contract beyond its entitlement to a benefit. An example of this occurs when a manufacturer
sells a product to a distributor and the distributor sells the product to a retailer. The retailer then
sells the product to a consumer. There is no privity of contract between the manufacturer and the
consumer.
This, however, does not mean that the parties do not have another form of action e.g. Donoghue v.
Stevenson – here a friend of Ms. Donoghue bought her a bottle of ginger beer, which was
defective. Specifically, the ginger beer contained the partially decomposed remains of a snail.
Since the contract was between her friend and the shop owner, Mrs. Donoghue could not sue under
the contract, but it was established that the manufacturer has a duty of care owed to their
consumers and she was awarded damages in tort.
3. Explain the concept of absolute liability with its exceptions.
Ans. In India, absolute liability is a standard of tort liability which stipulates that where an
enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on
account of an accident in the operation of such hazardous or inherently dangerous activity
resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to
compensate all those who are affected by the accident and such liability is not subject to any of the
exceptions which operate vis-à-vis the tortious principle of strict liability under the rule in Rylands
Vs. Fletcher.
In other words absolute liability is strict liability without any exception. This liability standard has
been laid down by the Indian Supreme Court in M.C. Mehta Vs. Union of India (Oleum Gas Leak
Case). These exceptions include:-

 Plaintiff’s own mistake

 Plaintiff’s consent

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  Natural disasters
 Third Party’s mistake
 Part of a statutory duty

The Indian Judiciary tried to make a strong effort following the Bhopal Gas Tragedy, December,
1984 (Union Carbide Company vs. Union of India) to enforce greater amount of protection to the
Public. The Doctrine of Absolute Liability was therefore evolved in Oleum Gas Leak Case and can
be said to be a strong legal tool against rogue corporations that were negligent towards health risks
for the public. This legal doctrine was much more powerful than the legal Doctrine of Strict
Liability developed in the UK case Ryland’s Vs. Fletcher. This meant that the defaulter could be
held liable for even third party errors when the public was at a realistic risk. This could ensure
stricter compliance to standards that were meant to safeguard the public.

4. What is private nuisance and how is it different from public nuisance?

Ans. The term nuisance has been derived from the French word ‘nuire’ and the Latin word
‘nocere’ which mean ‘to do hurt or to annoy’. According to Winfield, “Nuisance, as a tort, means
unlawful interference with a person’s use or enjoyment of land or some right over or in connection
with it.” Acts interfering with the comfort, health or safety are the examples of it. Nuisances are
of two types ---
i) Public Nuisance and ii) Private Nuisance .
Public Nuisance Private Nuisance
1. With respect to the public But in case of private nuisance, an action for
nuisance, if the plaintiff does not damages is maintainable.
sustain special damage, an action
for damages is not maintainable.
2. In case of public nuisance, an But in case of private nuisance, an action for
action lies for declaration with a damages lies.
prayer for injunction.
3. One person individually cannot Private nuisance is actionable only by an
sue in his own name for a public individual.
nuisance .
4. Public nuisance cannot be But a right to create or continue a private
legalized by any length of time. nuisance can by acquired by way of
prescription.
5. Public nuisance affects the right, On the other hand, private nuisance affects
safety or convenience of the right of an individual or a determinate body
public at large or a considerable of persons.
portion of the public.
6. A public nuisance cannot be On the other hand, a private nuisance can be
abated by any person affected so abated.
thereby.

5. Write short notes on:

(a) Consumer: Under the Consumer Protection Act, reliefs are available only to consumers.
Therefore, under section 2(1)(d) of the Act, defines the term ‘consumer’ as follows:

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(i) A person who buys any goods for a consideration which has been paid or promised or partly
paid and partly promised or under any system of deferred payment. The term includes any other
user of such goods when such use is made with the approval of the buyer.
The word ‘consumer’ does not include a person who obtains such goods for resale or for
any commercial purpose.
(ii) A person who hires or avails of any services for consideration which has been paid or
promised or partly paid and partly promised, or under any system of deferred payment. The term
includes any other beneficiary or such services with the approval of the first-mentioned person.
But ‘consumer’ does not include a person who avails of such services for any commercial
purpose.

(b) Complaint: Section 2(1)(c) of the Consumer Protection Act, 1986, defines the term
‘complaint’ to mean any allegation in writing made by a complainant that:
(i) Any unfair or restrictive trade practice has been adopted by a trader.
(ii) The goods bought by him or agreed to be bought by him suffer from one or more defects.
(iii) The services hired or availed of or agreed to be hired or availed of by him suffer from some
deficiency in any respect.
(iv) The trader has charged for the goods a price higher than the price fixed or displayed on the
goods or the package containing them or under any law for the time being in force.
(v) Goods which will be hazardous to life and safety when used are being offered for sale to the
public in contravention of the provisions of the law for the time being in force, requiring to display
information in regard to the contents, manner and effect of use of such goods.

(c) Rights of Consumer: The rights of a consumer, as enumerated in the Consumer Protection
Act, are as under:
(i) The right to be protected against marketing of goods which are hazardous to life and property.
(ii) The right to be informed about the quality, potency, purity, standard and price of goods to
protect the consumer against unfair trade practices.
(iii) The right to be assured, wherever possible, access to variety of goods at competitive prices.
(iv) The right to be heard and to be assured that the consumers interests will receive due
consideration at appropriate forums.
(v) The right to seek redressal against unfair trade practice or unscrupulous exploitation of
consumers.
(vi) Right to consumer education.

6. Define latin maxim injuria sine damnum with leading case law.
Ans. This maxim ‘ Injuria sine Damnum ‘ is just opposite to the maxim ‘ damnum sine injuria’ .
The word ‘ damnum ‘ means damage . This damage may be loss of health , loss of service ,
physical hurt and loss of money or the like . The word ‘ injuria’ means a legal injury or tortuous
act or an infringement of legal right . And the word ‘sine ‘means without . So the maxim means
that an infringement of any legal right without damage. Where there is infringement of legal right ,
action lies against that act . Therefore, if any legal right is infringed, it is immaterial whether any
loss is suatained or not, this maxim ‘injuria sine damnum ‘affords right to sue for legal remedy .
According to this maxim whenever there is an invasion of a legal right , the person in whom the
right is vested , is entitled to bring an action though he has suffered no actual harm and may
recover damages . It is sufficient to show that there is violation of a legal right and the law will
presume damage . On the strength of this maxim the libel, assault , battery , false imprisonment
and trespass on land or the mere wrongful acts are actionable without proof of special damage .
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In India , the same principles have been followed . It is not necessary to show any damage if the
legal right is infringed . Violation of a legal right gives rise to a legal action.
As for example , in an interesting American case of Morningstar Vs. Fafayette Hotel Company,
the plaintiff , who was a guest at the defendant’s hotel , was fed up with the food served at the
hotel , and so , he purchased some spare ribs outside the hotel , and gave them to the hotel chef to
be cooked and brought to his room . This was done . But the spare ribs were accompanied by a bill
for one dollar which the plaintiff refused to pay . On the following morning , the plaintiff was
publicly informed at the table of breakfast that he would not be served . The plaintiff sued for
wrongful refusal to serve breakfast to him and the Court held that his legal right had been
infringed.
In the famous leading case of Ashbay Vs. White , the defendant , a returning officer at a voting
booth , wrongfully refused to register a duly tendered vote of the plaintiff , who was a qualified
voter . The candidate for whom the vote was sought to be tendered was elected. So no loss was
suffered by the plaintiff for rejection of his vote . The Court held that violation of the plaintiff’s
right was an injury to him for which he must have a remedy without proof of actual damage .
In another interesting case of Marzetti Vs. Williams , a Banker having sufficient funds in his hands
belonging to a customer refused to honour his cheque .The customer sustained no actual loss or
damage. The Court held that the customer’s legal right was infringed and was entitled to damages.

7. Define ubi jus ibi remedium with case law.

Ans. The word ‘Jus’ means the legal authority to do or demand something, and the word
‘remedium’ means the right of action in a Court of law. Literal meaning of this maxim is that
whenever there is a legal right, there is a legal remedy. Sometimes it is expressed that there is no
wrong without a remedy.
The principal upon which this maxim is based is that if a man has a right and if his right is injured ,
he must, of necessity, have a mean to vindicate or a remedy. It is useless to think about a right
without a remedy . Because want of right and want of remedy are same thing . Both the right
infringed and the remedy sought should be legal.
The law of torts was developed to some extent on the basis of this maxim.
But he maxim does not say that there is legal remedy for every wrong.
Justice Stephen ( of England) remarked that the maxim would be more intelligibly and correctly
stated if it were to be reversed to say that where there is no legal remedy, there is no legal wrong.
There are many moral and political wrongs which are not recognized by law and are therefore not
actionable. A cruel war may raze houses to the ground, or oppressive legislation may reduce men
to moral slavery, or a contract required to be made on a stamped paper may be made orally in all
these cases, irreparable harm may be caused, and yet, a legal remedy may not be available.
Thus, the maxim does not mean that there is a legal remedy for every moral or political wrong.
In Ashby v. White (1703) 2 Ld Raym 938 the House of Lords invoked the principle
of ubi jus ibi remedium in favour of an elector who was wrongfully prevented from voting and
decreed the claim of damages. The ratio of this decision has been applied and extended by English
Courts in various situations. In Roncarelli v. Duplessis (1959) the Supreme Court of Canada
awarded damages against the Prime Minister of Quebec personally for directing the cancellation of
a restaurant-owner's liquor licence solely because the licensee provided bail on many occasions for
fellow members of the sect of Jehovah's Witnesses, which was then unpopular with the authorities.

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8. Discuss the special provisions relating to hit and run cases under the Motor Vehicle Act.
Ans. If there is a hit and run motor accident, that is, the accident arising out of the use of a motor
vehicle, the identity whereof cannot be ascertained in spite of reasonable efforts, there is a special
provision for compensation in such cases. in such a case, the compensation to be paid, as per the
Motor Vehicles (Amendment) Act, 1994, shall be as follows:
(i) In respect of the death of a person, a fixed sum of Rs. 25,000/-.
(ii) In respect of the grievous hurt to any person, a fixed sum of Rs. 12,500/-
Sections 161 to 163 of the Act deals with the above and has been enumerated as under:
1. For the purposes of this section, section 16 2 and section 163 --
a. "Grievous hurt" shall have the same meaning as in the Indian Penal Code; (45 of
1860.)
b. "Hit and run  motor accident" means an accident arising out of  the use of a motor
vehicle or motor vehicles the identity whereof cannot  be ascertained in spite of
reasonable efforts for the purpose;
c. "Scheme" means the scheme framed under section 163.
2. Notwithstanding anything contained in the General Insurance Business (Nationalisation)
Act, 1972 (57 of 1972.) or any other law for the time being in force or any instrument
having the force of law, the General Insurance Corporation of India formed under section 9
of the said Act and the insurance companies for the time being carrying on general
insurance business in India shall provide for paying in  Accordance with the provisions of
this Act and the scheme, compensation in respect of the death  of, or grievous hurt to,
persons resulting from hit and run motor accidents.

9. What do you mean by tortious liability?

Ans. The principle of ‘tortious liability’ under the law of torts is based upon the following
principles:
(i) Mental element: Malice is required to be proved in almost every criminal act, but in the law
of torts it is required in a limited away. However, such a generalization cannot be made about the
liability in tort. The position is as under:
(a) Fault when relevant: In many of the branches of law of torts, like, assault, battery, false
imprisonment, deceit, malicious prosecution and conspiracy, the state of mind of a person is
relevant to ascertain his liability. It has to be seen whether a particular wrongful act was done
intentionally or maliciously. Thus, defendant will be liable for the natural and necessary
consequences of his act.
(b) Liability without fault: There are certain areas where the mental element is quite relevant and
the liability arises even without any wrongful intention or negligence. In such cases, innocence of
the defendant or an honest mistake on his part is no defence. The entire concepts of Strict
Liability and Absolute Liability are based on no fault liability.
(ii) Statutory Liability: Where any enactment by the legislature exempts any act from the
liability, the defendant is protected from being sued even if his act is a wrong under the law of
Torts.
(iii) Motive: Any invasion of the civil rights of another person is in itself a legal wrong, carrying
with it liability to repair its necessary or natural consequences, whether the motive which
prevented it be good, bad or indifferent. Now, malice can be of two different types:
(a) Malice in law: In its legal sense, it means a willful act done without just cause or excuse, and it
is known as malice in law.
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(b) Malice in fact: In its narrow and popular sense, it means an evil motive and the same is known
as ‘malice in fact’.
Motive is not relevant to determine a person’s liability in the law of torts.
(iv) Mistake: Generally, mistake whether of fact of or law, is no defence in an action for tort.
However, there are certain exceptions to this rule. E.g., for the wrong of malicious prosecution,
malicious libel, it is necessary that the defendant had acted maliciously and without reasonable
cause, and if the prosecution of innocent man is mistaken it is not actionable.

10. Can a king or sovereign be sued under Law of Torts?

Ans. Under the English Common Law the maxim was "The King can do no wrong" and therefore,
the King was not liable for the wrongs of its servants. But, in England the position of old Common
law maxim has been changed by the Crown Proceedings Act, 1947. Earlier, the King could not be
sued in tort either for wrong actually authorised by it or committed by its servants, in the course of
their employment. With the increasing functions of State, the Crown Proceedings Act had been
passed, now the Crown is liable for a tort committed by its servants just like a private individual.
Similarly, in America, the Federal Torts Claims Act, 1946 provides the principles, which
substantially decides the question of liability of State.
The question of tortuous liability of State has raised many interesting debates in juridical arena. In
India, there is no legislation, which governs the liability of the State for the torts committed by its
servants. It is article 300 of the Constitution of India, 1950, which enumerates the liability of the
Union or State in tortious act of the Government.
The Article 300 of the Constitution originated from Section 176 of the Government of India Act,
1935. This could be traced back from the Section 32 of the Government of India Act, 1915, the
genesis of which can be found in section 65 of the Government of India Act, 1858. Section 65 of
the Government of India Act, 1858 provided "All persons and bodies politic shall and may have
and take the same suits, for India as they could have done against the said Company."
It will thus be seen that by the chain of enactment beginning with the Act of 1858, the Government
of India and Government of each State are in line of succession of the East India Company. In
other words, the liability of the Government is the same as that of the East India Company before,
1858.
In Kasturi Lal V. State of U.P. , the Apex court has adopted a pro-people approach. In this case the
Police seized some suspected stolen gold from Plaintiff. Later, it was misappropriated by Head
Constable of the Police Station who reportedly fled to Pakistan with the Gold. The Supreme Court
held that the State is not liable as impugned act is a sovereign activity. The Court did not find the
Vidyawati case having decided anything different from this which according to it, had always been
the law since P&O Steam Navigation Company case and was consistently followed. The Court
expressed its displeasure with this legal position in a welfare state where the activities of the State
had enormously increased and asked the State to take necessary legislative steps to remedy the
situation on some such lines as the Crown Proceedings Act, 1947 in England. The court also
expressed its distress over the plight of the appellant who could not know his position and get any
relief.
It is unfortunate that the recommendation of the Law Commission made long back in 1956 and the
suggestions made by the Supreme Court, have not yet been given effect to. The unsatisfactory state
of affairs in this regard is against social justice in a welfare state. In absence of State Liability
Legislation, it will be in consonance with social justice demanded by the changed conditions and
the concept of welfare state that the courts will follow the recent decision of the Supreme Court
rather than Kasturi Lal.