AL-AMEEN COLLEGE OF LAW

III SEMISTER 3 YEARS LLB

LAW OF TORTS
UNIT I

1. "Every injury imports damage but every damage is not injury". Discuss the statement in the
light of decided cases.? (April 23)
OR
2. Define Tort. Explain damnum sine injuria with appropriate cases. (Dec 19)
Or
3. Discuss the essential elements of tort with decided cases. (Oct 21)(Dec 21)
The word tort is a Latin word 'tortum' which means 'twisting out' and in popular sense it
implies conduct which is twisted or unlawful. A tort is simply a civil wrong. Torts are wrongdoings
that are done by one party against another. As a result of the wrongdoing, the injured person may
take civil action against the other party.
Tort can be said to be a wrongful act, not including a breach of contract or trust, that results
in injury to another's person, property, reputation, or the like and for which the injured party is
entitled to compensation.
Definition:
According to Salmond "Tort is a civil wrong for which the remedy is a common law action
for unliquidated damages and which is not exclusively the breach of a contract or the breach of a
trust or other merely equitable obligation".
According to Dr. Winfield, "Tortuous liability arises from the breach of a duty primarily
fixed by law; this duty is towards persons generally and its breach is redressable by an action for
unliquidated damages."
According to Frazer "It is an infringement of a right in rem of a private individual giving a
right to compensation at the suit of the injured party'.
Thus, in simple terms, tort is a civil wrong or breach of a duty to another person on which
courts, based on fault, impose liability and it is mainly concerned with providing compensation for
personal injury and property damage caused by negligence.
There are certain conditions which must exist before a person is held liable in tort. The conditions or
elements are as follows:
1. Wrongful act- In case of tort there must be a wrongful act or omission on the part of defendant.
The wrongful act is an act which is done without any lawful justification. The act of the defendant
 becomes wrongful only when there is violation oflegal rights. Ifthe act complained ofdoes not
violate legal right ofanother person, it is not a tort. Thus in tort the plaintiff has to prove that his
legal rights have been violated by the act ofthe defendant.

2. Legal damage-In general, a tort consists of some act done by a person who causes injury to
another, for which damages are claimed by the latter against the former. The word damage is used
in the ordinary sense ofinjury or loss or deprivation ofsome kind. [Whereas damages mean the
compensation claimed by the injured party and awarded by the court.]
The real significance ofa legal damage is illustrated maxims, namely,
Damnum Sine Injuria
• Damnum Sine lnjuria- 'damnum' means damage in the form of money, comfort or health,
'injuria' means violation oflegal rights and 'sin'e means without. That means "actual loss without
legal loss", economic loss or financial losses are actual loss which is not violating any legal right and
they are not actionable in tort.
Where there has been no infringement ofany legal right, the mere fact ofharm or loss will not render
such act or omission actionable although the loss may be substantial or even irreparable. Damage so
done is called "damnum sine lnjuria"
That is actual or substantial loss without infringement ofany legal right and in such cases no
action lies.
Gloucester Grammar School Case:

The defendant was the schoolmaster intentionally opened the school in front ofthe plain­
tiffs school, causing damage to him. As due to an increase ofcompetition the plaintiff has to reduce
their fees from 40 pence to 12 pence per scholar per quarter. It was held that even though the
plaintiff has suffered harm but there was no infringement ofany legal right, therefore, the defendant
can't be held liable
Mogul Steamship Co v. McGregor Gow and Co:

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

Ushaben v. Bhagyalaxmi Chitra Mandir:

In this case, the plaintiff pleaded before the court of law to issue a permanent injunction
order on the film named, "Jai Santoshi Maa". According to her, the film hurt the religious feelings
ofthe plaintiff. It was observed that hurting ofreligious sentiments did not result in any legal injury,
andalso that other than the plaintiff no other person feelings were hurt. Therefore, it was held that
the defendant was not liable.
Injuria Sine Damnum-
That means "legal loss without actual loss". Legal loss refers to breach ofprivate right, trespass
etc. and its actionable in law of tort. Defendant is liable for give damages. This means an in­
fringement ofa legal private right without any actual loss or damage. In such a case the person
whose right has been infringed has a good cause ofaction. It is not necessary for him to prove
any special damage because every injury imports a damage when a man in hindered ofhis right.
Thus, in cases ofassault, battery, false imprisonment, libel etc., the mere wrongful act is
actionable without proofofspecial damage. The Court is bound to award to the plaintiff at least
nominal damages ifno actual damage is proved.
Thus, this maxim provides for,
1) Infringement ofa legal right ofa person.
2) No actual loss or damage is required to prove.
3) Infringement ofa private right is actionable per se.

Case laws
In Ashby V. White,
This maxim is well explained in the case Ashby vs. White. In this case the plaintiff was a qualified
voter at a parliamentary election, while the defendant who was a returning officer in election
wrongfully refused to take a vote ofthe plaintiff. Although the plaintiff didn't suffer any loss by
such wrongful act as the candidate, he wanted to vote won the election, the legal rights of the
plaintiff were infringed and therefore the defendant was held liable.
In Municipal Board of Agra V Asharfi Lal, the facts are, the Plaintiff (Asharfi Lal) was
entitled to be entered as an elector upon the electoral roll. His name was wrongfully omitted from the
electoral roll and he was deprived ofhis right to vote. It was held by the court that ifany duly qualified
citizen or person entitled to be on the electoral roll ofan constituency is omitted from such roll so as
to be deprived of his right to vote, he has suffered a legal wrong, he has been deprived of a right
recognised by law and he has against the person so depriving him, a remedy, that is, an action lies
against a person depriving I him ofhis right.
In Bhim Singh V. State of J&K, the petitioner, an M.L.A. ofJammu & Kashmir Assembly,
was wrongfully detained by the police while he was going to attend the Assembly session. Thus, he
was deprived of his fundamental right to personal liberty and constitutional right to attend the
Assembly session. The court awarded exemplary damages of Rs. Fifty thousand by way of
consequential relief.An action will lie against a banker, having sufficient funds in his hands belonging
to the customer, for refusing to honour his cheque, although the customer has not thereby sustained
anyactual loss or damage,
3. Legal remedy -The law of torts is said to be a development of the maxim 'ubi jus ibi
remedium' or 'there is no wrong without a remedy'. Ifa man has a right, he must ofnecessity have
a means to vindicate and maintain it and a remedy ifhe is injured in the exercise or enjoyment ofit;
and indeed it is a vain thing to imagine a right without remedy; want ofright and want ofremedy are
reciprocal.
4. Trace the development oflaw ofTorts in England and India. (April 23)

In The U.K., Law of Torts predominantly takes the form of judicial precedents, and a few
regulations within the ambit oflaw oftorts have been codified for the welfare ofthe citizens, a lot
similar to that ofIndia since that is where the Indian Judicial system draws its inspiration from. 'Tort'
is a private, civil wrong and is primarily oftwo types- intentional torts and negligent torts. There is
also a new developing branch ofvicarious liability. The key elements to be proved for a tort are the
existence ofa duty, the breach ofthat duty and damages as consequence to that. The idea of 'duty'
was summed up in the well-known judgment ofDonoghue v. Stevenson. The latest judgment on the
subject ofbuilding up an obligation ofcare is Caparo v. Dickman. Its development all through the
late nineteenth and twentieth century mirrors the weights which the ascent of modem and urban
culture has conveyed to endure the conventional classifications oflegitimate change for obstruction
with ensured interests.

The law oftorts in India is, for the most part, the English law oftorts which itselfdepends on
the standards of the customary law of England. However, the Indian courts before applying any
control ofEnglish law can see whether it is suited to the Indian culture and conditions.

The use of the English law in India has in this way been a specific application. In the case
M.C. Mehta v Union oflndia (AIR 1988 SC 1037), Justice Bhagwati observed, "We have to evolve
new principles and lay down new norms which will adequately deal with new problems which arise
in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by
reference to the law as it prevails in England or for the matter ofthat in any foreign country. We are
certainly prepared to receive light from whatever source it comes but we have to build our own
jurisprudence."

Amid British control, courts in India were ordered by Acts ofParliament in the UK and by
Indian establishments to act as per equity, justice, and good conscience ifthere was no particular lead
of instituted law pertinent to the debate in a suit. Concerning suits for harms of torts, courts took after
the English customary law seeing that it was in consonant with equity, justice, and good conscience.
An English statute managing tort law is not by its own constraint pertinent to India but rather might
be taken after here unless it is not acknowledged for the reason aforementioned.

It has also been held that section 9 of The Code of Civil Procedure, which enables the civil
court to try all suits of a civil nature, impliedly confers jurisdiction to apply the Law of Torts as
principles of justice, equity and good conscience. Thus the court can draw upon its inherent powers
under section 9 for developing this field of liability.

The jurisdiction of section 9 of the Civil Procedure Code 1908 which allows the civil court
to try all cases of civil nature also includes tortious cases and liabilities. In the case of Jay Laxmi Salt
Works (p) Ltd. v the State of Gujarat (1994) 4 SCC 1, Justice Sahai observed, "Truly speaking the
entire law of torts is founded and structured on morality. Therefore, it would be primitive to close
strictly or close finally the ever-expanding and growing horizon of tortious liability. Even for social
development, orderly growth of the social and cultural the liberal approach to tortious liability by the
court would be conductive."

The perception made by Hon'ble Justice Sahai in the Salt Works case dissipates any
deceptions with regards to the need for the law of torts. His perceptions likewise imagine the
development of tort prosecution in India. To completely asses the feigned party by tort law in an
advanced society, it is informational to swing to the history of England during the last three centuries.
This is for two reasons firstly, tort case in England has developed essentially, making it a fascinating
study and besides, the law of torts in India has been to a great extent obtained from the English law
of torts.

It is perceptible that we cannot stand to disregard any office which can manage a singular
lead in similarity with the requirements of social peace and satisfaction which are the essential
elements on which our arrangements of national headway can rest. It is not really important to include
that while embracing English standards and speculations, we need to make adjustments and
adaptations. These are demands of conditions in India, as observed by different Indian Judges (M.C
Mehta v. Union of India AIR 1988 SC 1037, Jay Laxmi Salt Works (p) ltd. V. State ofGujrat (1994)
4 SCC 1) who furthermore noted the immense changes in this branch of law that are occurring
somewhere else.

An Approach Towards Law of Torts in India

 During Ancient Era: The individuals ofancient India consider that the State and the King are
the basic tools for their peaceful promotion of their lives. There are several literatures that also
describe the law and the legal institutions, liability and immunity ofthe King, ideas ofthe origin of
the State, the nature of the society, responsibilities of the sovereign towards its individuals and
equitable remedy to the affected persons through Ordeal system etc.

The most important amongst the various manuscripts are the Vedas, Sutras, Smritis, Epics,
Kautilya's Arthasashtra and the writings offoreign travelers. They also tell us the responsibilities of
the State to compensate the victims, affected by the officials ofthe King during ancient period. The
concept ofvicarious liability in India was developed during Vedic period.

The King had to safeguard the life and property ofthe people. Ifany wrong happened to affect the
people, the King was responsible to compensate them from King's malkhana. According to Manu
where common man would be fined with Karshapana, the King shall be fined one thousand, which
is the settled Law. Brihaspathi says where a servant commissioned by his master does any improper
act for the benefit ofhis master, the later shall be held responsible for it. Thus once, it is established
that the servant's act is for the benefit of the master in the course of his employment, the master
becomes liable.

5. Explain the concepts of tortious Liability. Distinguish between Tort and breach of
contract.(Dec 21)

6. Torts and breach of contract.(April 23)(6 marks)

Introduction: Law is bundle of rules which regulates the external behavior of individuals in
society. Law ofTorts is the branch oflaw controlling the behavior ofpeople in the society. It is a
growing branch oflaw and its main object is to define individual rights and duties in the light of
prevalent standards ofreasonable conduct and public convenience. It provides pecuniary remedy for
violation against the right ofindividuals. The entire Law of Torts is founded and structured on the
principle that, 'no one has a right to injure another intentionally or even innocently.

Meaning:-The word 'Tort' is derived from latin term 'tortum' which means 'to twist' or a deviation
from straight or right conduct and includes that conduct which is not straight or lawful.
DEFINITIONS BY RENOWNED JURISTS

'Tort' is defined by various jurists as under:"A tort is a civil wrong for which the remedy is
a common law action for unliquidated damages and which is not exclusively the breach of a con­
tract, or the breach of a trust, or the breach ofother merely equitable obligation".
Salmond:"A tort is an infringement ofa right in rem ofa private individual, giving a right ofcom­
pensation at the suit ofthe injured party". - Fraser
Winfield:"Tortious liability arises from the breach ofduty primarily fixed by law; this duty is
towards persons generally and its breach is redressible by an action for unliquidated damages".

STATUTORY DEFINITION:-'Tort' is defined in Section 2(m) Limitation Act, 1963 as:"Tort is

a civil wrong which is not exclusively breach ofcontract or breach of trust".
Distinction between Tort and Breach of Contract
TORT BREACH CONTRACT
I .the duty is fixed by the law itself 1.the duty is fixed by the party them-
selves.

2.The duty is towards every person of the 2.The duty is towards specific person or per-
community or society sons.
3.A tort is a violation ofa right in rem (that is, 3.A breach of contract is an infringe-
a right vested in some determinate person and ment ofa right in personam (that is, ofa
available against the world at large) right available only against some deter-
minate person or party.

no Privity IS needed or IS required to be Privity between the parties must be

proved proved.

In tort, motive is often taken into account breach ofcontract motive is not rel-
evant.

In tort, measure of damages is different in In Breach of contract, damages are awarded in

different circumstances which may be nominal the form of compensation for pecuniary loss
or exemplary suffered
A third party can sue for tort even though there A third party to a contract cannot sue for breach
was no contract between the person causing in- ofcontract except in some exceptional cases.
jury and the person injured
Intention is sometimes taken into consideration Intention, in case ofbreach ofcon-
tract, is ofno relevance.
 Law oftort is concerned with losses Contract law is concerned with prom-
1ses.

Limitation begins to run from the date when Limitation commences when the
damages occurs breach ofobligation takes place.

7.Trace the development ofmaxim 'Ubi Jus ibi Remedium" (Nov 22)(0ct 2 1)
or
8.Ubi jus ibi remedium. (Oct 2 1)(6 marks)
Introduction: It is a Latin maxim which means that where there is a wrong, there is a remedy. Ifany
wrong is committed then the law provides a remedy for that. The maxim can be phrased as that any
person will not suffer a wrong without a remedy, it means that once it is proved that the right was
breached then equity will provide a suitable remedy. This principle also underlines the fact that no
wrong should be allowed to go without any compensation if it can be redressed by a court of law.
The law presumes that there is no right without a remedy; and ifall remedies are gone to enforce a
right, the right in point oflaw ceases to exist.

Meaning: The law of tort is said to be the development of the maxim Ubi jus ibi remedium. The
word ''jus" means legal authority to do something or to demand something. The
word "remedium" means that the person has the right of action in the court of law. The literal
meaning ofthe maxim is where there is a wrong there is a remedy.

The maxim also says that there is no remedy without any wrong and the persons whose
right is being violated has a right to stand before the court oflaw. This principle also states that ifthe
rights are available to a person then it is required to be maintained by that person only and remedy is
available only when he is injured in the exercise ofduty or enjoyment ofit; it is useless to imagine
and think a right without a remedy sought or to be obtained should be legal. There are many moral
and political wrong but are out actionable or it does not give many sufficient reasons to take legal
actions as they are not recognised by law. The maxim does not mean that there is a legal remedy for
every wrong committed.
Essentials Of Ubi Jus Ibi Remedium:
 This legal maxim is applicable only when any legal injury has occurred to any person,
if no legal injury is caused then the legal maxim damnum sine injuria is used which implies that any
harm without any legal injury
Any unlawful of wrongful act must have been done which violates the legal rights of a person.
This maxim can be used only when sufficient relief has not been provided by the court to the person
who sustained the injury.
This maxim can only be applied wherever this right exists and can be recognized by the court oflaw.

Limitations Of Ubi Jus Ibi Remedium:

We cannot apply this maxim if any proper remedy is given in case of any breach of
rights under law.
This maxim cannot be applied to moral and political wrong which are not actionable.
If plaintiff is negligent or there is negligence by the side of the plaintiff then this maxim will not be
applicable.
In case of public nuisance unless a plaintiff shows that he suffered more injured then other members
of the society , this maxim will not be applicable.

Case I: Donoghue v Stevenson

This case is also known as the snail in the beer bottle case. This event took place in Paisley, Scotland
in 1928, where Ms. May Donoghue was given a bottle of ginger beer which had bought by her friend.
Since, the bottle was opaque in colour from outside nothing is visible inside. Donoghue consumed
most of its contents before she became aware of the snail had been there inside the bottle and she
later fell ill.
Donoghue then took a legal action against the manufacture of the ginger beer, Mr.
David Stevenson. The house of lord held that the manufacture owed a duty of care to her, which was
breached because it was reasonably foreseeable that failure to ensure the product's safety would lead
to her to consumers. There was also a sufficiently proximate relationship between consumers and
product manufacturers.
Case II:- Bhim Singh V. State Of Jammu And Kashmir
In this case, there is an applicant who is the MLA of the Jammu and Kashmir parliamentary gathering.
While he was on his way to the parliamentary meeting, he was inappropriately captured by a cop and
he was not able to be introduced before the judge on time and he had a lawful right to go to the
gathering.His fundamental right under article 21 under the Indian constitution has been violated. The
Supreme Court considered that the respondent was liable for violating the applicants rights and it
granted him a damage of rupees 50000 to the candidate for encroachment of his fundamental right.
Case III: Ashby V. White
This is basically a case of English tort law which is related to the violation of right and remedy
provided by law. Plaintiff Mr. Ashby is a registered voter but he was interrupted from voting in the
elections. So there is a violation of fundamental right which is Right to vote, by the officer Mr. white.
The candidate, whom he wanted to vote, won the election. Now, he wants the compensation of the
violation of his legal right. The court held that however, the plaintiff has suffered any damage because
he wished to vote in the election, his right has been infringed and he was interrupted from exercising
his legal right. Therefore, the plaintiff was awarded compensation in the form of damages.

Case IV: Maretti V. William:

In the case of maretti v. william, the plaintiff has deposited his fund in defendants bank and the
accused refused to honour cheque to the plaintiff although he has sufficient balance in his account.
So the court in this case held that the defendant is liable for all the loss incurred by the plaintiff. There
is legal violation of this legal maxim too, so this maxim was invoked to render justice to the plaintiff
stating that the legal right of the plaintiff has been revoked.
Conclusion:
So, here we conclude that if any right of any human being is being infringed then there is always the
law that provides and make sure that no rights of people will be infringed. If there is any violation of
legal or fundamental right then it ensures the proper damage and compensations by invoking the
maxim 'UBI JUS IBI REMEDIUM'. Under this maxim no off-base will be unredeemable on the
off chance that it very well may be cured by the court. No rights exist without a remedy.

9. Explain the importance of mental elements in torts. (Dec 19)

Mental Element in Tortious Liability
Mental element is an essential element in most of the forms of crime. Generally, under criminal law,
mere act of a person is not enough to create his liability. Mens rea or a guilty mind is also required.
A man, therefore, is not Ordinarily punishable for something which he never meant, or the
consequences of which he could not foresee.
It is not so easy to make any such generalization about liability in tort. The position under the law of
torts is as follows
Mensrea may take any one of the following three forms:
1. Intention
2. Rashness (Recklessness)
 3. Negligence.
On the other hand, Civil Law ofObligations, ofwhich Law ofTorts is a part, seeks mainly to
compensate the victim ofa wrong committed by another person. Therefore, the question as to whether
the wrong-doer had committed the wrong with a guilty mind is not relevant to Law ofTorts.

The obligation to make reparation for the damage caused wrongful act arises from the fault, and not
from the intention. 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, in so far as these are injurious
to the person whose right is infringed, whether the motive which prompted it be good, bad, or
indifferent.

It is no defense to an action in tort for the wrong-doer to plead that he did not intend to cause damage,
ifdamage has resulted owing to an act or omission on his part which is actively or passively the effect
ofhis volition. A want ofknowledge ofthe illegality ofhis act or omission affords no excuse. Every
man is presumed to intend and to know the natural and ordinary consequences ofhis acts (Guille v.
Swan, the balloon case. Scott v. Shepherd the lighted squib case.) But in some cases fraud or malice
are the essence ofthat act or omission. Only in such cases knowledge offacts will be relevant to hold
the alleged wrong-doer guilty or otherwise.

INTENTION

Where a person can foresee the natural consequences ofhis own act and also desires those natural
consequences, he is said to have committed that act intentionally. For example, A shoots at B knowing
full well that by doing so he may injure or even kill B, and with a desire that B should be injured or
killed. Here A has intentionally shot at B. Ifthe defendant must has acted consciously and ofhis own
free will and has intended some injury to the plaintiff's interest, the he is said to have committed a
wrong intentionally.
1. Conduct is not intentional where it results from unconscious or involuntary movement.
2. Nor is it intentional for the purpose ofLaw ofTorts where although the defendant has acted ofhis
own free will, yet he intended no harm to the plaintiff.
Two points need to be noted, however, which diminish the importance ofthis rule.
1. In law a man's intention are adjudged by objective standards.A man is taken to intend to harm
the plaintiff when the consequence which he intends would constitute an injury to a legally
protected interest of the plaintiff, regardless of whether he realizes that such a consequence
would constitute such injury or not.
Thus, ifA sees B sitting in front ofhim in the bus and taps him on the head to attract his attention,
then A commits the tort of battery25. A consciously and voluntarily moves his hand over B's head
and taps it. A intends both the act, and the consequence-the application of force, to B's person.
Technically, there is a tort committed. This is equally true if A taps C's head in mistake for B's. If the
defendant must have acted consciously and of his own free will and must have intended some injury
to the plaintift's interest.
RASHNESS

But where he can foresee those consequences but does not desire them, he is said to have
acted rashly or recklessly. For example, A drives a vehicle at an excessive speed on a crowded street
knowing full well that he may cause accident and injure somebody, but without desiring that accident
should take place and hoping that no one will be injured. Here A is driving the vehicle rashly or
recklessly.

NEGLIGENCE

In case of negligence, there is neither foresight nor desire of the consequences of one's own
natural acts. However, there is failure to take adequate care as demanded by the circumstances in
which the act is done.

Negligence is the breach of a duty caused by the omission to do something which a reasonable man,
guided upon those considerations which ordinarily regulate the conduct of human affairs, would do,
or by doing something which a prudent and reasonable man would not do, whereby damage has
resulted to a person.

The word "negligence" is used in two senses.

1. It is the name of a tort, so that the plaintiff can sue in negligence where an interest of
his which the law protects by that tort is injured.
2. Negligence is itself sometimes an ingredient of other torts.
It is therefore both a tort and a concept of the law of torts. Here we look at negligence as a concept.
Negligence is a type of behaviour. It is distinguishable from other behaviour by the notional mental
attitude of the defendant. Negligence exists where the defendant did not intend to injure the plaintiff,
and yet he disregarded or did not fulfill a duty imposed upon him by the law. It is akin to carelessness,
but is a vastly more complicated concept.

As observed by Lord Wright, "In strict legal analysis negligence means more than needless or
careless conduct, whether in omission or commission: it properly connotes the complex concept of
duty, breach and damage thereby suffered to the person to whom the duty was owing."
An action for negligence proceeds upon the idea ofan obligation or duty on the part ofthe defendant
to use care, and a breach ofit to the plaintitrs injury. It is not necessary that the duty neglected should
have arisen out of a contract between the plaintiff and defendants. However the duty may arise,
whether by a statute or otherwise, ifit exists and is neglected to the injury ofthe plaintiff, he has a
right to sue for damages. There cannot be a liability for negligence unless there is a breach ofsome
duty.

Mere omission to exercise active interference on behalfofanother to prevent harm, however open to
moral censure, is not a civil wrong. There is no absolute or intrinsic negligence; it is always relative
to some circumstances, oftime, place, or person.

The test is not whether this particular defendant actually foresaw the possibility of harm to the
plaintiff. It is whether a hypothetical reasonable man would have foreseen it had he been in the
defendant's position. This means that a defendant must sometimes foresee even acts ofstupidity or
forgetfulness on the part ofthe plaintiff.

MOTIVE

Motive is defined as ulterior intention. Ifwe say that A has intentionally shot at and killed B,
the next question would be why did A intend to kill B? In other words, what was the reason behind
A's intention to kill B? It may be because Was the legal heir ofB and wanted to inherit the property
quickly by killing B. Or, it may be that A had some enmity against B and due to that hatred he killed
B. Or, may be A wanted to take some revenge against B. Such intention to acquire B's property

through inheritance, enmity or hatred, or intention to take revenge are said to be motive behind the
killing ofB by A. Motive is almost always irrelevant in the English law oftort. A man's reasons for
doing an act do not make a lawful act unlawful, nor vice versa.

10.Write a short note on 'Malice in law and Malice in Fact'(Oct 22))

or
11. Malic in law. Dec 2 1 )( 6 Marks)
MALICE.

Malice is a term with many meanings. Firstly, it is often used to mean spitefully or with ill­
will. Like other motives, malice in this sense is invariably irrelevant in Law ofTorts, and therefore,
is not essential to the maintenance ofan action for tort.
 Bradford Corporation v. Pickles, Mr. Pickles was annoyed at the Bradford Corporation's
refusal to purchase some land from him at the inflated price he demanded. In order to force their
hand, he sank a shaft on his land, which interfered with water percolating from higher land belonging
to the Corporation. The Corporation unsuccessfully sought an injunction to restrain him from
polluting and diminishing their water. The House of Lords rejected the claim, Lord McNaughton
remarking that "It is the act, not the motive for the act that must be regarded. Ifthe act, apart from
motive, gives rise merely to damage without legal injury, the motive, however reprehensible it may
be, will not supply that element."

In this first sense, malice is occasionally relevant as a necessary element required to establish the
defendant's liability, e.g. to rebut the defense ofqualified privilege in libel or slander.

Malice has a second meaning. In this legal sense, malice means the intentional commission ofan act
with any improper motive. This is much wider than the layman's use ofthe word malice. Malice is
usually used in this sense in the few contexts in which it is relevant in tort. For example, in the tort
ofmalicious prosecution, malice is constituted by any motive other than that ofsimply instituting a
prosecution for the purpose ofbringing a person to justice.

Sometimes malice is used in it archaic sense to mean simply an intentional performance ofa tortuous
act. It is in this sense that pleaders in libel and slander actions traditionally allege that the defendant
"falsely and maliciously ... " In fact, this means merely that the defendant's publication of the
defamatory matter was either intentional or negligent. Malice in this sense would appear to be a
confusing

12. Torts and Crime.(April 23)(6 Marks) or

13. Torts and breach of contract.(April 23)(6 Marks) or

14. Distinguish between tort and crime, tort and contract.(Oct 21)(10 Marks)

Less senous wrongs are considered as i) More serious wrongs have been considered
private wrongs and have been labelled as to be public wrongs and are known as crimes.
civil wrong ii) The suit is filed by the injured person
himself.

ii) The suit is filed by the injured person ii) The case is brought by the state.
 himself.

iii) Compromise is always possible. iii) Except in certain cases, compromise is

not possible.

iv) the wrongdoers pays compensation to the iv) The wrongdoer is punished.
injured party.

V ) A person who commits Tort IS a V ) A person who commits Crime IS a

'tortfeasor' 'Criminal' or 'Offender'

vi) The remedy of tort IS unliquidated vi) The remedy is to punish the offender
damages or other equitable relief to the
injured

vii) Tort litigation is compoundable Criminal cases are not compoundable except
in case of exceptions as per Section 320
Cr.PC ofIPC

Distinction between Tort and breach ofcontract

Breach ofContract Tort

i) It results from breach ofa duty undertaken i) It occurs from the breach of such duties
by the parties themselves. which are not undertaken by the parties but
which are imposed by law.

ii) In contract, each party owes duty to the ii) Duties imposed by law of torts are not
other. towards any specific individual but towards
the world at large.

iii) Damage ofcontract is liquidated. iii) Damage oftort is unliquidated.

 iv) It provides limited remedy iv) It provides limited remedy

Problems:

a.A and B are neighbours. A constructed a well in his land. Due to the same B'swell dried
up. B wants to file a suit against A. Advice him.

This above illustration is similar to the case Bradford Corporation v. Pickles.

'B' cannot file a suit as he has no cause of action. A has not caused any harm to Bhe was merely using his
right to enjoy water even though his action resulted no drying up of B ' s well. A's act was a lawful act. The
damage which B is goin throughis "damnum sine injuria" 'damnum ' means damage in the form of money,
comfortor health, ' injuria ' means violation of legal rights and 'sine ' means without. That means "actual loss
without legal loss", economic loss or financial losses are actualloss which is not violating any legal right and
they are not actionable in tort. Such adamage does not give rise to legal action.

b. An MLA of Karnataka was wrongfully detained by the police while he was going to attend
the Assembly session. He was not produced before the Magistrate within requisite period.
Which legal right is violated? Advice him.

Answer :The above mention problem is identical to a leading case law which is has follows.

case law

1. Bhim Singh v/s State ofJammu and Kashmir.

FACTS OF THE CASE: In this case the petitioner was an MLA ofJammu and Kashmir Assembly
was wrongfully detained by the police while he was going to attend the Assembly session. He was
not produced before the magistrate within the requisite period.

As the consequence of this the member was deprived of his constitutional right to attend the
Assembly session. There was also violation offundamental right to personal liberty guaranteed under
Art 2 1 ofthe constitution.

Orders: In this case Hon'ble Supreme ordered to pay exemplary damages of Rs.50,000/- to the
petitioner
 In the above problem the legal right of an MLA of Kamataka was violated under Art 2 1 of
the Constitution in depriving him to attend the Assembly session hence in this case the maxim
"lnjuria Sine Damno" is to be applied.

UNIT II

1. Explain the defences available to defendant under the Tort. (April 23) (Oct 21) or

2. How far act of God and inevitable accident are defences is an action for tort"?) (Oct 22) (Dec
19)or

3. Define the doctrine of "volenti non fit injuria" as one of the good defences in tortious liability.
Refer to decided cases.Dec 21) (Dec 19

Acts done in certain special circumstances are not torts, that is in absence ofthosecircumstances
the same act becomes a tort. Acts done in such circumstances are known asdefences of torts or
justification.

1) Volenti Non fit Injuria

When a person consents for infliction ofan harm upon himself, he has no remedy for that in
Tort. That means, ifa 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. For example, A
purchases tickets for a Car race and while watching the race, an collision ofcars happens and the
person is injured. Here, by agreeing to watchingthe race, which is a risky sport, it is assumed that
he voluntarily took on the risk ofbeing hurt in an accident. Thus, he cannot claim compensation for
the injury.
Such consent may be implied or express. For example, a person practicing the sportofFencing with
another, impliedly consents to the injury that might happen while playing.However, the action caus­
ing harm must not go beyond the limit ofwhat has beenconsented. For example, in a sport offenc­
ing, a person consents to an injury that happenswhile playing by the rules. If he is injured due to
an action that violates the rules, he canclaim compensation because he never consented to an injury
while playing without rules.
In Woolridge v. Sumner, the plaintiff a photographer was taking photographs at a horse show, dur­
ing which one horse rounded the bend too fast. As the horse galloped furiously, the plaintiff was
frightened and he fell in the course. He was seriously injured. It was held that the defendants had
taken proper care in closing the course and the plaintiff,by being in the show, agreed to take the risk
ofsuch an accident. The defendants were notheld liable.
In Laxmi Rajan v.Malar Hospital, a woman consented for a surgery to remove alump from her
breast. But the hospital removed her uterus as well without any genuinereason. It was held that
removing ofher uterus exceed beyond what she had consented for.
Also, the consent must be free. It must not be because of any compulsion. Thus, ifa servant was
compelled by the master to do a certain task despite his protests, and ifhe isinjured while doing it,
the master cannot take the defence ofvolenti non fit injuria becausethe consent was not free.Excep­
tions - In the following conditions, this defence cannot be taken even ifthe plaintiff has consented
a. Rescue Conditions - When the plaintiff suffers injury while saving someone. For
example, A's horse is out ofcontrol and is galloping towards a busy street. B realizes
that ifthe horse reaches the street it will hurt many people and so he bravelygoes 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 justaction in
public interest and the society should reward it instead ofpreventing himfrom getting
compensation. Haynes v. Harwood, defendant's servant brought a twohorse carriage
into a residential neighborhood and parked it across the street from a police station
while he was off doing work. While the servant was away, childrenupset the horses
and they broke free and were on a path to injure people. The plaintiff, a police officer,
saw this from a window. He ran out and stopped the horses, however one ofthem
fell and injured him. He brought an action for damages. The court held that in
cases such as these, the volenti non fit injuria maxim does not apply. Ifsomeone
acts to help those in danger as a result ofa person's negligent actions, that person is
liable for damages resulting from their actions as long as they are reasonable in the
circumstances. Taking risk upon yourselfis not applicable in rescue circumstances.
b. Unfair Contract Terms - Where the terms ofa contract are unfair, the defendant can­
not take this defence. For example, even ifa laundry, by contract, absolves itselfofall
liability for damage to clothes, a person can claim compensation because thecontract
is unfair to the consumers.

2.Act of God

It is also called as Vis Major. 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. Nobody can predict, prevent, or protect from a natural disaster such 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 something thatcould not have been anticipated or expected. For exam­
ple, heavy rains in the monsoon areexpected and if a wall falls and injures someone, it cannot be
termed an act of god becauseprotection for such expected conditions should have been taken. But if
a building falls dueto a massive earhquake and injures and kills people, this defence can be used. In
the case of Nichols v. Marshland, the defendant has a number of artificial lakes on his land. Un­
precedented rain such as had never been witnessed in living memory caused the banks of the lakes
to burst and the escaping water carried away four bridges belonging to the plaintiff. It was held that
the plaintiffs bridges were swept by act ofGod and the defendantwas not liable.
In the case of Blyth v. Birmingham Water Works Cothe defendants had constructed water pipes
which were reasonably strong enough to withstand severe frost. There was an extraordinarily severe
frost that year causing the pipes to burst resulting in severe damage to the plaintiffs property. It
was held that though frost is a natural phenomenon, the occurrence of an unforeseen severe frost
can be attributed to an act of God, hence relieving the defendants of any liability.
In Ramalinga Nadar v. Narayana Reddiar the plaintiff had booked goods with thedefendant for
transportation. The goods were looted by a mob, the prevention of which was beyond control of de­
fendant. It was held that every event beyond control of the defendantcannot be said Act of God. It
was held that the destructive acts of an unruly mob cannot beconsidered an Act of God.

3. Inevitable accident

According to Sir Fredrick Pollock, "inevitable accidents are those incidents which a person ofordi­
nary prudence cannot avoid in spite of all reasonable care on his part in the circumstances in which
they occur."

An inevitable accident is one which could not have been possibly been avoided by the exerciseof due
care and caution. For example, in Stanley v. Powell, the plaintiff and the defendant were members
of a shooting party. The defendant shot a bird but the bullet ricocheted off a tree and hitthe 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.However, the defence oflnevitable Accident is not a license to neg­
ligence. For example, A hashired B's car. While driving, one of the tires bursts and causes accident
injuring A. Here, if the tires were worn out and were in bad condition, it would be negligence of B
and he would be heldliable for A's injuries.
 4. Private Defence;

Every individual has the right to protect his life and his property and in doing so he may use certain
amount offorce ifnecessary. This right doesn't extend to protecting just yourselfand yourown fam­
ily members but all other people and their property in general. The law oftorts recognisesthis right
and so any act done by a person in exercise ofthis act will not give rise to a tortiuous liability.

To use this defence three conditions need to be satisfied.

i. There must be a real and imminent threat to the defendant. A very widely stated illus­
tration in this reference is where a ferocious dog starts barking violently at you but
doesn't bite. And then when it turns back and starts walking away ifyou hit it or throw
a stone at it you cannot claim private defence. This is because the dog was no longer a
threat to you after it turned away and started walking back and so the act committed by
you is wrong and cannot be justified under the defence ofprivate defence.
ii. Also it needs to be shown that the force used was only for the purpose ofprotection or
private defence and not for revenge. There should be no mala fide or bad intention
involved for a successful private defence claim. Example: A and B lived in houses
adjacent to each other and were not in very good terms. One day A's cow entered B's
house and destroyed some ofhis plants. B gets angry and shoos the cow away, but later
he plans to take revenge on A and shoots at it. He claims he did this in private defence
but this claim shall fail because it is evident that he used more force than that was
necessary and had wrong intentions while doing the act.

111. The force used by the defendant should be in proportion to the act committed and
enough to ward off the imminent danger. Suppose a person installs an electric wired
fence around his property to keep away trespassers without any warning signs at all.
He is not only doing an act which is grossly negligent but also he doesn't have the right
to claim private defence as the means used are way more dangerous than required.In
case ofprotection ofproperty it is essential that the person must be in possession ofthe
property at the time of the incident. It means that if a person is staying in a house on
rental then hehas the right to defend the property in which he is staying. The owner also
has such right but he must be in possession ofthe property. A person who does not have
possession of the land may usereasonable force against persons who obstruct him in
carrying out his own duties. In case of trespass one must use reasonable force in the
 course ofprotecting the property.

The case ofBird v. Holbrook, deals with the defence of protection of property. Holbrook, thede­
fendant set up a spring-gun trap in his garden in order to catch an intruder who had been stealingfrom
his garden. He did not post a warning. Bird, the petitioner chased an escaped bird into the garden
and set off the trap, suffering serious damage to his knee. Bird sued Holbrook for damages.It was
held that while setting traps or "man traps" can be valid as a deterrent when notice is also posted,
D's intent was to injure someone rather than scare them off. Hence he was held liable.

The famous case ofMorrisv. Nugent, discusses the importance of the presence of a threat at the
time when the act of private defence is committed. In the case as the defendant was passing bya
house the defendant's dog came and bit him. When the defendant turned around and raised his gun
the dog ran away but he shot the dog anyway. It was held that the defendant's act was not justified
as there was no real threat at the time the defendant shot and so he could not claim the plea ofprivate
defence.
s. Acts of Necessity-

Ifthe act causing damage is done to prevent a greater harm, it is excusable. 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 ofpeople is excusable. Thus, in Leigh v. Gladstone, force feeding ofa hunger striking
prisoner to save her was held to be a good defence to an action for battery.

This defence has been recognised on the principle ofSalus Populi Suprema Lex i.e. the welfare of
the people is the Supreme Law. Hence the act which causes certain intentional damageis excused
when done for the greater good of the people or to avoid any greater harm. If A sees asmall fire
starting on a field nearby and trespasses B's farm to reach the place and extinguish it, hecan claim
the defence ofnecessity and he shall have not committed trespass. Surroco v. Geary,isa case based
on very similar facts. Wildfires had swept through San Francisco around the time when this incident
occurred, destroying houses and businesses. Surocco's house was directly in the path ofthe fire, and
he was racing to get his possessions out ofthe house as quickly as possiblebefore the house was
consumed. Geary, the mayor of San Francisco, ordered the fire department to demolish Surocco's
house so that the fire would not spread any further into the neighborhood. The fire department com­
plied, using dynamite to level Surocco's house. Surocco sued Geary, claiming that had Geary not
ordered the fire department to blow up his house, Surocco could havesaved more of his personal
possessions. The court, however, found that the public necessity defense applied because the dam­
age to the city would have been far worse ifGeary had not giventhe order to have Surocco's house
demolished.

Under the Law ofTorts, necessity is a plausible defence, which enables a person to escapeliability
on the ground that the acts complained of are necessary to prevent greater damage, inter alia, to
himself. The defence is available ifthe act complained ofwas reasonably demanded by thedanger or
emergency. In the case ofDhania Daji v. Emperor, the accused was a toddy-tapper. Heobserved
that toddy was being stolen from the trees regularly. To prevent it, he poisoned toddy insome ofthe
trees. He sold toddy from other trees. However, by mistake, the poisoned toddy was mixed with
other toddy, and some ofthe consumers injured and one ofthem died. He took the pleaof necessity
however it was rejected and he was prosecuted.
6. Statutory Authority;

An act that is approved by the legislature or is done upon the direction ofthe legislature is excused
from tortious liability even though in normal circumstances, it would have been a tort. When an act
is done under the authority ofan Act, it is a complete defence and the injured party has no remedy
except that is prescribed by the statute. For example, ifthere is a railway line nearyour house and
the noises ofthe train passing disturbs then you have no remedy because the construction and the
use of the railway is authorized under a statute. However, this does not give the authorities the
license to do what they want unnecessarily; they must act in a reasonablemanner. It is for this
reason that we see that there are certain guidelines that need to be followedduring construction of
public transport facilities.
In Vaughan v. Taff Va/de Rail Co, sparks from an engine caused fire in appellant's woods that
existed in his land adjoining the railway track. It was held that since the company was authorized to
run the railway and since the company had taken proper care in running the railway,it was not liable
for the damage.
7. Mistake:

Generally, mistake is not a valid defence against an action oftort. Thus, hurting a person underthe
mistaken beliefthat he is trespassing on your property, will not be defensible. However, in certain
cases, it could be a valid defence. For example, in the case ofmalicious prosecution, it is necessary
to prove that the defendant acted maliciously and without a reasonable cause. Ifthe prosecution was
done only by mistake, it is not actionable.
In Consolidated Company v. Curtis, an auctioneer was given certain gods by his customer forauc­
tion. The auctioneer, honestly believing that the goods belonged to the customer, auctioned them
and paid the sale proceeds to the customer. But later on it was disclosed that the goods belonged to
some other person. The true owner of goods brought an action for tort of conversion against the
auctioneer. The defendant took the plea that that he had no knowledge oftrue owner ofgoods. It was
held the defendant was liable for tort ofconversion.

4. How to determine the relationship between master and servant? Explain. (April 23) (Oct
21)or

5. Explain 'Vicarious Liability'. Which circumstances the master will be liable for the acts of
his servant?)(Oct 22) (Dec 21)

Introduction

A general rule is that ' a man is liable only for his own act but there are certain circumstances
in which a person is liable for the wrong committed by others. This is called 'Vicarious Liability'

Definition

1. Salmond: In general a person is responsible for his own acts, but there are exceptional cases
in which the law imposes on him vicarious responsibility for the acts of another. However
blameless himself.

Meaning.

So, the term vicarious liability denotes the Liability which "A" may incur to "C" for damage caused
to "C" by the negligence or other torts of"B".

Modes of vicarious liability

a. Liability by ratification. Ex. Contracts, agreements.

b. Liability arising out ofspecial relationship

c. Liability for abetment.

law oftort deal with vicarious liability in Liability arising out ofspecial relationship.
The relationship are as follows
► Master and servant
► Owner and Independent contractor
 ► Principal and agent
► Company and its director
► Firm and its partners
► Guardian and ward or father and child
► Husband and wife
Vicarious liability is based on two important maxims

1. Qui facit per alium facit per se:-

2. Respondent superior

1. Qui facit per alium facit per se:-

It means 'that he who acts through another is deemed in law as doing it himself'
The masters responsibility for the servant's act had also its origin in this principle. The reason
is that a person who puts another in his place to do a class ofacts in his absence.

► The master leaves the servant to determine, according to the circumstances

that arise, when an act ofthat class ofwork is to be done.
► Trust him for the manner in which it is done
► Consequently the master is answerable for the wrong of the person so
entrusted
► For either in the manner of doing such an act or in doing such an act under
circumstances in which it ought not to have been done
2. Respondent superior:-

Another Maxim is respondent superior ie the superior must be made responsible or let the principal
be liable.

In such cases not only he who obeys but also he who command becomes equally liable.

This rule has its origin in the legal presumption that all acts done by the servant in and about
his master's business are done by his master's express or implied authority and are in truth, the act
ofthe master.

The master is answerable for every such wrong of the servant as is committed in the course of his
service, though no express command or privity is proved.
In law oftort master and servant liability is dealt with.

MASTER AND SERVANT

In order that the master may be held liable for the tort of his servant following conditions
should be fulfilled.

a. The person committing the tort must be servant

b. The servant committed the tort while acting in the course of employment of his master
c. The act must be a wrongful act authorized by the master or a wrongful and
unauthorized mode ofdoing some act authorized by master.

Since, master is liable for wrongful act ofa servant 2 things should be know that is
1. who is a servant?
2. What is the course ofemployment?

1. who is a servant?

To decide who is a servant the Theory ofcontrol was levied but it had its own hardship in modem
days because of various and different employment like, industries, factories, hospital ,
communication etc.

case law

1. In short v/s J.W. Henderson Ltd

In this case Lord Thankerton stated that

There must be contract of service between the master and servant has laid down the following 4
indications

1. The master's power ofselection ofhis servant

2. The payment ofwages or other remuneration

3. The master's right to control the method ofdoing the work &

4. The master's right ofsuspension or dismissal

Again this view was not satisfactory because the 3rd element states about control.

In another Case

Reddy Mixed Concrete (South East) V/s Minister of Pensions and National Insurance.

The contract ofservice may be said to exist if.

1. The servant agrees that in consideration ofa wage or other remuneration, he will provide his
own skill and work in the performance ofsome service for his master.

2. He agrees expressly or impliedly, that in the performance ofthat service he will be subject to
the other's control in a sufficient degree to make that other master

3. The other provisions ofthe contract are consistent with its being a contract ofservice.

Thus a servant may be defined as any person employed by another to do work for him on the terms
that he is to be subject to the control and directions ofhis employer in respect ofthe manner in which
his work is to be done.

A servant is thus an agent who works under the supervision and direction ofhis employer, engaged
to obey his employer's order from time to time.

2. The course of employment:-

A servant is said to be acting in the course ofemployment if,

1.The wrongful act has been authorized by the master.

2. The mode in which the authorized act has been done is wrongful or unauthorized.

1. Case Law: Rickett's Case

Facts of the case: In this case the driver ofthe omnibus asked the conductor to drive the omni-bus
and turn it round to make it face in the right direction for the next journey. But in doing so an accident
took place and severe damages also occurred.

Orders:-lt was held that master is liable because the driver was negligent in the performance ofthe
master's work.

2. Case Law: Maharastra State V/s Kanchan Mala Viiay Singh [AIR 1995 sc 2499]
Facts of the case: In this case the Hon'ble Supreme court has explained the meaning of "in
course ofEmployment"

The court stated that the law is well settled that the master is vicariously liable for the acts of
his servants acting in the course ofemployment. The test is whether the acts was done on the owner's
business or that it was proved to have been impliedly authorized by the owner.

MAIN INCIDENTS OF MASTER'S LIABILITY:-

Through 6 ways the master becomes liable for the wrong done by servants in the course of their
employment.

1. The wrong committed by the servant may be natural consequences of something done
by him with ordinary care in execution of his master's specific orders.

Case Law: Gregory V/s Piper

Facts of the case: In this case there was some dispute between the defendant and the plaintiff who
where neighbours about the right of way. In order to obstruct the plaintiff form using the way the
defendant instructed his servant to place rubbish across the pathway, but do it so skillfully that it did
not touch the plaintiff's wall. The servant carried out the orders ofthe master carefully, but in course
oftime the heaped up rubbish began to single down with the result that a portion of it touched the
plaintiff's wall. The plaintiff brought an action for trespass against the defendant.

ORDERS:- It was held that the defendant was answerable, because the initial act which the servant
did was an authorized one, and the damage resulting was the natural consequence ofthe work done
by him, however carefully it might have been done.

2. Master will be liable for the negligence of his servant.

Case Law

Bayley v/s Manchester shiffed and Linocolnshire Rly

Facts of the case: In this case the duties ofthe porter ofthe defendant company to prevent passengers
from getting into the wrong train. The plaintiff a passenger was seated in the right train but the porter
under the mistaken beliefthat the plaintiff was in the wrong train violently put him out ofthe carriage
The act ofthe porter was certainly mistaken manner ofdoing ofthe work entrusted to him,
nevertheless the work was done in the course of the servant's employment and the defendant was
held liable.
 3. Servant's wrong may consist in excess of mistaken execution of a lawful authority, but
2 things have to be established.:

a. It must be shown that the servant intended to do on behalfofhis master something which
he was in fact authorized to do.

b. It has to be proved that the act ifdone in a proper manner would have been lawful.

4. Wrong may be a willful wrong but doing on the master's behalf and with the intention
of serving his purpose.

5. Wrong may be due to the servant's fraudulent act.

A master is liable also for the wrongful acts ofhis servants done fraudulently. It is immaterial
that the servant's fraud was for his own benefit.

6. Wrong may be due to the servant's criminal act:-

Though there is no such thing as vicarious liability in criminal proceedings, yet in a civil
action a master is liable in respect ofthe criminal acts a servant, provided they are committed in the
course ofemployment.

Case law

Morris v/s C.W.Martin and sons Ltd

In this case the plaintiff had sent 5 coats to "x" to be cleaned and "X" with her permission sent it to
the defendants, who were specialist cleaners. The defendants handed the coat to their servant "M"
to clean it and "M' stole the coat.

Orders: It was held by the court that the defendants were liable

CONCLUSION

It can be concluded that under the law of tort the master is liable for the wrongful acts
committed by his servant under the course ofemployment.

Problems:

a)T' goes to see a motor car race as a spectator by purchasing a ticket. The car race is organised by
one 'Suhan co. Ltd'. as a sportive amusement while 'T' is observing the race. there was a collision
between two cars on ofwhich was thrown among the spectators and 'T' sustained injuries. 'T' files a
suit for compensation due to injury against 'Suhan Co'. Decide. (Dec 21)

Issue 1 : Whether the ' Suhan Co' is liable to pay compensation.

Issue 2: Whether the general defence of tom that is Violenti non fit injuria can be claimed as
defence.

Issue 1: The fact of the problem is matches with the case Hall v Brooklands Auto Racing Club,

Fact of case: The plaintiff was a spectator at a motor car race being held at Brooklands on a track
owned by the defendant company. During the race, there was a collision between two cars, one of
which was thrown among the spectators, thereby injuring the plaintiff. It was held that the plaintiff
impliedly took the risk of such injury, the danger being inherent in the sport which any spectator
could foresee, the defendant was not liable.

Issue 2: In the above case the defence is Volenti non fit injuria

When a person consents for infliction of an 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. For example, A
purchases tickets for a Car race and while watching the race, an collision of cars happens and the
person is injured. Here, by agreeing to watchingthe race, which is a risky sport, it is assumed that
he voluntarily took on the risk of being hurt in an accident. Thus, he cannot claim compensation for
the injury.
In the above fact of the problem is matches with the case law. So in the problem the defence of
defendant ' Suhan Co' is Volenti Non fit injuria. Accord to the illustration case the defendant ' Suhan
co' not liable to pay compensation.

Conclusion: according above discussion we come to conclusion that the defendant ' Suhan & co' is
not liable to pay compensation as defence ofVolenti Non fit injuria.

b)Raghu and sharma's dogs were fighting. Mr. Sharma was beating them in order to separate
them and Raghu was looking on Sharma rising the stick over his shoulder in order to strike
the dogs. Accidentally hit Raghu in the eye. Can Raghu seek compensation? (Oct 21)

Issue: whether the Raghu can claim compensation from sharma

Above fact of the problem matches with the case Brown v Kendell

Fact of the case: the plaintiff's and the defendant's dogs were fighting. While the defendant was
trying to separate them, he accidentally hit the plaintiff in his eye, who was standing nearby. The
injury to the plaintiff was held to be result ofpure accident, for which no action could lie.

The above case decided by the principle ofInevitable Accident:

According to Sir Fredrick Pollock, "inevitable accidents are those incidents which a person ofordi­
nary prudence cannot avoid in spite ofall reasonable care on his part in the circumstances in which
they occur."
Fact ofthe problem matches with the illustrated case law. So the Raghu is not liable pay compensation
as it considered a Inevitable accident.

Conclusion: according to above discussion, Raghu is not liable pay compensation to Sharma for the
injury caused to eye. Since it is an inevitable accident.

c) Some military employees to the government found firewood lying by the side of the river.
They took it and used it for camp fire and fuel, under the impression that it belonged to the
Government. The plaintiff, the real owner of the wood, brought an action against government.
Is the Government liable.

Answer : In the above said problem the solution is as follows: The government is liable for the
wrongful act ofthe military employees because,

1. The military employees are the servant ofthe government and

2.The military employees have done the wrongful act during the course ofemployment , hence the
government is liable

Case Law:State of Rajasthan V/s Mrs. Vidyawati [AIR 1962 SC 933]

In this case the question relating to the liability of the government for the torts committed by its
servants in the course ofemployment was considered by the supreme court ofIndia.

In this case a person was knocked down by a government jeep car which was rashly and
negligently driven by an employee ofthe state ofRajasthan.

This car at the time ofaccident was taken from the repair shop to the collector's residence and was
meant for collector's use.

Hence, the wife ofthe deceased filed a suit against the state ofRajasthan.
Orders: The claim was allowed by the supreme court.

UNIT III

1. Explain the concept of Strict Liability and state the exceptions. (April 23)(0ct 21) or

2, "In jure non remote causa sed proxima spectator". Explain the maxim with the help of
leading cases.(April 23) OR

3.Discuss the rule laid down in Ryland v Fletcher and M. C Mehta v UOL

There are situations when a person may be liable for some harm even when he is not negligent in
causing the harm, or there is no intention to cause to cause the harm, or sometimes he may even have
made some positive efforts to avoid it. Sometimes the lawrecognizes 'No fault liability' and this was
laid down by the House of Lords in Rylands v. Fletcher and also in another case M. C. Mehta v.
Union ofIndia ( 1987) by the Supreme Court oflndia

THE RULE IN RYLANDS v. FLETCHER; The plaintiff was Thomas Fletcher and the defend­
ant's was John Rylands. In the circumstances, the defendant had constructed a reservoir on land that
was on leasehold, whose purpose was to supply water into his powered textile mill. Thomas Fletcher's
land neighbored thatofRylands. In his land, Fletcher operated mines and had excavated up to disused
mines which were under the land where the plaintiffs reservoir was located. The land that both parties
were using had been rented from lord Wilton and the "activities that each carried out were legal".
Rylands employed independent contractors and engineers to build a reservoir. When on duty thecon­
tractors came across some mine shafts that were no longer in use and which were loosely filledwith
marl and earth. The contractors "made no attempt" to fix the shafts. These shafts led througha series
ofinterconnected shafts and channels, into the plaintiffs (Fletcher) mines and land. Aftercompletion,
water burst and flooded into Fletcher's land and mines. In those circumstances, Thomas Fletcher sued
John Rhylands.

The defendant pleaded that there was no intention and since he did not know about the
shafts, he was not negligent even though the contractors were. Even so, he was held liable. J
Blackburn observed that when a person, for his own purposes, brings to his property anything
that is likely to cause a mischiefifit escapes, must keep it at his peril and ifit escapes and causes
damage, he must be held liable. He can take the defence that the thing escaped due to an act ofthe
plaintiff or due to vis major (act of God) but since nothing ofthat sort happened here, then it is
unnecessary to inquire what excuse would be sufficient.To
this rule promulgated by J Blackburn, another requirement was added by the Court of
Exchequer Chamber, that the use must be a non-natural use ofland as was the case in Ryland vs
Fletcher itself. For example, growing ofregular trees is a natural use but growing poisonous trees
is not.

Rylands v. Fletcher to operate, the following elements must be present;

a) There must be a non natural use ofthe defendant's land;

b) The defendant must have artificially accumulated a thing like to do mischief if it
escapes on his land;There must have been an escape from the defendant's land ofa
thing likely to causemischief; and damage must result from the escape since the tort
is not actionableperse. Attempt will now be made to briefly discuss these elements
one after the other.
Non Natural Use

For liability to be established under the rule in Ryland's v. Fletcher, the defendant must makes non
natural use ofthe land. This is defined in Richard v. Lothian by Lord Multon as some special use
bringing with it increased danger to others and not merely the ordinary use ofthe land or such a
use as it proper for the general benefit for the community. Thus, the use must be for the personal
purpose ofthe person doing the act. Non natural use has been described to mean:

a) Natural as suppose to artificial use ofthe land

b)Novel as distinct from traditional use ofthe land. Non natural use seems to be a question
offact and in deciding same all the circumstances ofthe time and practice ofmankind must
be taken into consideration so that what must be regarded as non natural use may vary
according to circumstances. In deciding whether a particular use ofland is not natural, the
courts will look not only at the thing or activity in isolation but also the
place and manner in which it is maintain and its relation to the surroundings.
Thus, although in Rainhan Chemical Works Limited .Belvedere Fish Company, the
House ofLords held in l92 1 that it was a non natural use ofland to build a factory in it and
manufacture explosives; the same House ofLords dramatically change its position in 1947
 in the case ofRead v. Lyons and held that in these days and in an industrial community it
was not a non natural use ofland to build a factory on it and conduct there the manufacture
of explosives. Thus, this varies in response to changing social conditions and needs.
Against this background, some ofthe old authority may be decided differently today hence,
normal industrial activities properly carried out may no longer constitute a non natural use
ofland.
Accumulation; The rule applies to things artificially accumulated, that is to say, brought
and kept on the defendant's land. In Wilson v. Waddell, it was held that the defendant will
not be liable under the rule, ifthe water is naturally on the defendant's land and he has done
nothing to accumulate it.
Escape

Escape for the purpose of applying the proposition in Rylands v. Fletcher means escape from a
place where the defendant has occupation or control over land to a place which is outside his
occupation or control- Lord Simon in Read v. Lyons In that case the plaintiff an Ammunition
Inspector while carrying out her duties inside the defendant's factory was injured by an explosion
which occurred within the factory premises. It was held that there is no escape and that accordingly
the defendant cannot be held liable. Also in Pointing v. Noakes a poisonous tree on the defendant's
land which never extended beyond the defendant's boundary caused the death of a horse which
ate its leaves by reaching over from the adjacent land. It was held that there was no escape and
therefore no liability.
Damages

Damages must be proved under the rule in Ryland's v. Fletcher since injury under the rule is not
actionable per se. But, where damages were indirectly and remotely connected to the escape, there
will be no liability on the part ofthe defendant. In Weller v. Foot and Mouth Disease Institute,
the defendant's were out ofbusiness as the result of the action ofGovernment inclosingthe cattle
market. This was held to be sufficient damage to sustain the action.
OLEUM GAS LEAK CASE fM. C Mehta v UOD

This new rule is harsher than the rule laid down in Ryland v. Fletcher. This is known as the
rule ofabsolute liability which has been laid down by the SC oflndia in the case ofM.C Mehta v
UOI.

The case ofM. C. Mehta v. Union of India originated in the aftermath ofoleum gas leak
from Shriram Food and Fertilisers Ltd. complex at Delhi.
Shriram Food and Fertilizer Industry, a subsidiary ofDelhi Cloth Mills Limited, was engaged
in the rnanu:facture ofdangerous chemical In December 1985, large amollllts ofolemn gas leaked form one ofthe
units in the heart of Delhi which resultedinthe death ofone person. The leakage, resulted from the burst­
ing ofa tank containing oleum There a re situations when a person may be liable for some harm even
when he is not negligent in ca using the ha rm, or there is no intention to ca use to ca use the ha rm, or
someti mes he may even have made some positive efforts to avoid it. Sometimes the law recogn izes 'No
fa u lt liability' and this was laid down by the House of Lords in Rylands v. Fletcher and a lso in another case
M. C. Mehta v. U nion of I ndia ( 1987) by the Supreme Cou rt of l ndiaThere are situations when a person
may be liable for some harm even when he is not negligent in ca using the ha rm, or there is no intention
to cause to ca use the harm, or someti mes he may even have made some positive efforts to avoid it. Some­
times the lawrecognizes 'No fa u lt liability' and this was laid down by the House of Lords in Ryla nds v.
Fletcher and also in another case M. C. Mehta v. U nion of India (1987) by the Supreme Court of l nd iagas,
was caused by mechanical and human errors. It created a scare among the people residing nearby and
within two days, another leakage, a minor one, broke out as a result ofolemn gas escaping from the joints of
a pipe. On 6thDecember 1985, the District Magistrate, Delhi ordered Shriram to stop the manufac­
turing and processing ofhazardous chemicals and fertilizers at their establishment in Delhi and to
remove such chemicals and gases from Delhi. At this particular point, M.C. Mehta moved to Su­
preme Court to file PIL and claim for compensation forthe losses caused and also demanded that
the closed establishment should not restart. A bench of three judges permitted the company to
restart production on the basis ofthe contention made by the company that it had taken all safety
measures against the danger. But while the writ petition was pending there was escape of oleum
gas from the factory.

The main question for consideration before the court was that as to what is the measure of
liability ofan enterprise which is engaged in an hazardous or inherently dangerous industry, ifby
reason of an accident occurring in such industry, persons die or are injured? Does the rule of
Ryland v. Fletcher apply or is there any other principle on which the liability can be determined.

The SC held that the rule laid down in the 19th century cannot afford any guidance in evolv­
ing any standards of liability inconsistent with the needs of the present day economy and social
structure. In this view the SC has laid down more stringent rule ofabsolute liability in the place of
simple rule ofstrict liability as it is necessary to deal with the problems ofmodem industrialized
society.

Under the new rule the duty is "absolute and non-delegateabe" and the enterprise cannot escape
liability by showing that it has taken all reasonable care and there has been no negligence on its
part. The basis ofthe rule is as follows:
a) Ifan enterprise is permitted to carry on a hazardous or inherently dangerous activity for its
profit, the law must presume that such permission is conditional on the enterprise absorbing
the cost ofany accident arising on account ofsuch hazardous or inherently dangerous ac­
tivity as an appropriate item ofits overheads,
LAW OF TORTS NOTES BY PRAVEEN B S (ASS. P ROF. OF AL-AM E E N LAW COLLEG E )

b) The enterprise alone has the resource to discover and guard against hazard or dangers and
to provide warning against potential hazards.

3. Define 'Negligence'. Explain thessentials of negligence along with decided cases.)(Oct 22)
(Oct 21) (Dec19)or

Negligence- The jurisprudential concept of negligence defies any precise definition. The
Apex Court in Jacob Mathew vs state of Punjab has observed that negligence is the breach of
duty caused by the omission to do something which a reasonable man, guided by those consid­
erations which ordinarily regulate the conduct of human affairs would do or doing something
which a prudent manwould not do, towards a person to whom the defendant owes the duty of
observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person
or property.

Negligence as a tort and crime - The term negligence is used for the purpose ofattaching
the defendant with liability under the civil law and at times under the criminal law. Generally,
it is the amount ofdamages which determines the extent ofliability in tort, but in criminal law
it is not thedamages but the amount and degree ofnegligence that determines liability.

In order to hold that the existence ofcriminal rashness or criminal negligence was there, it
shall haveto be proved that the rashness was ofsuch a degree as to amount to taking risk knowing
that, the risk was ofsuch a degree that injury was most likely imminent.

Negligence has two meanings in law oftorts-

1) Negligence as a mode of committing certain torts example- negligently or carelessly com­

mittingtrespass, nuisance or defamation. In this context, it denotes the mental element.
2) Negligence is considered as a separate tort. It means a conduct which creates a risk ofcausing
damage, rather than a state ofmind. The House ofLords in Donoghue vs Stevenson treats negli­
gence where there is a duty to take care, as a specific tort in itself, and not simply as an element
in some more complex relationship or in some specialised breach ofduty.

Essentials ofNegligence

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LAW OF TORTS NOTES BY PRAVEEN B S (ASS. P ROF. OF AL-AM E E N LAW COLLEG E )

In an action for negligence, the plaintiff has to prove the following essen­
tials-The defendant owed duty ofcare to the plaintiff,
1) The defendant made a breach ofthat duty

2) The plaintiff suffered damage because ofthat.

1) Duty ofcare to the plaintiff- It means a legal duty rather than a moral religious or
social duty. The plaintiff must establish that the defendant owed to him a specific legal
duty to take care, of which he has made a breach. Lord Atkin propounded the rule in
Donoghue versus Stevenson and said you must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your neighbour.
In this case, A purchased a bottle ofginger beer from a retailer for the appellant, a
lady friend. Some ofthe contents were poured into a tumbler and she consumed it. When
the rest ofthe ginger beer was poured into her tumbler, the decomposed body ofa snail
came out. The appellant alleged that she seriously suffered in her health because of the
contaminated drink. She brought an action against the manufacture for damage.
One ofthe defences pleaded by the defendant was that he did not owe any duty ofcare
towards the plaintiff. It was held that the manufacturer owed a duty to take care that the
bottle did not any harmful matter and he would be liable on the breach ofthe duty. Another
defence by the defendant was that the plaintiff was a stranger to the contract and her action
was therefore not maintainable.
2) Duty depends on reasonable foreseeability ofinjury- Whether the defendant owes
a duty to the plaintiff or not depends on reasonable foreseeability of the injury to the
plaintiff. Ifatthe time ofthe act or omission, the defendant could reasonably foresee in­
jury to the plaintiff, he owes a duty to prevent that injury and failure to do that makes him
liable. To decide the guilt ofa person, we have to determine what a reasonable man would
have foreseen. In the case of S.Dhanaveni V . State ofTamil Nadu, the deceased slipped
into a pit filled with rain water in the night. He caught hold ofa nearby electric pole to
avoid falling. Due to leakage ofelectricity in the pole he was electrocuted. The respond­
ent who maintained the electric pole was considered negligent and was held liable for the
death ofthe person.

No liability when injury not foreseeable- In Cates v. Mongini Bros the plaintiff, a lady
visitor to a restaurant was injured by the falling ofa ceiling fan on her. The reason for
37
LAW OF TORTS NOTES BY PRAVEEN B S (ASS. P ROF. OF AL-AM E E N LAW COLLEG E )

the falling ofthe fan was a latent (hidden, not seen) defect in the metal ofthe suspension
rod ofthe fan which could not have been seen by a reasonable man. In an action against
the restaurant owner, it was held that since the harm could not be seen, they were not
negligible and therefore not liable for the loss to the lady plaintiff.

Reasonable foreseeability does not mean remote possibility - To establish negligence it

is not enough to prove that the injury was foreseeable, but a reasonable likelihood ofthe
injury has to be shown because foreseeability does not include any idea oflikelihood at
all. The duty is to guard against probabilities rather than bare possibilities.
Bolton v. Stone- The defendants were the committee and members ofa cricket club. A
batsman hit a ball whish went over a fence seven feet high and seventeen feet above the
cricket pitch and injured the plaintiff on the adjoining highway. The ground had been used
for about ninety years and during the last thirty years, the ball had been hit in the highway
on about six occasions, but no one had been injured. The House ofLords held that there
wasno liability as the chance ofa person being hit in a long time was very small.
2) Breach of duty- Breach of duty means non-observance of due care which is
required in a particular situation. It is said that the standard ofcare required is that of
a reasonable manor of an ordinary prudent man and if the defendant acted like an
ordinary prudent man there is no negligence.
Standard ofcare required- The law requires taking oftwo points into consideration
todetermine the standard ofcare required.
(a) The importance ofthe object to be attained- The care required is that ofa reasonable
man under certain circumstances and law permits taking chance ofsome measure of
riskso that in public interest various kinds of activities should go on. A balance has
thereforeto be maintained between the importance and usefulness of an act and the
risk created thereby. Thus, a certain speed may not be negligence for a fire engine, but
the same speed may be an act ofnegligence for another vehicle.
(b) The magnitude ofrisk- The degree ofcare required differs according to each situa­
tion. What may be a careful act in one situation may be a negligent one in another.
Thus, thedriver ofa vehicle should take greater care when it is raining, and greater
care is also required when while transporting inflammable and explosive materials
than in transporting ordinary goods.
38
LAW OF TORTS NOTES BY PRAVEEN B S (ASS. P ROF. OF AL-AM E E N LAW COLLEG E )

Glasgow Corp v. Taylor- In this case poisonous berries were grown in a public garden
under the control ofthe Corporation. The berries looked like cherries and were attrac­
tive to look at for children. A child aged seven, ate those berries and died. It was found
that there was no fencing around the tree, and no notice was there warning aboutthe
poisonous fruit. The court held the defendants liable.
(c) The amount ofconsideration for which services etc are offered- The degree
ofcare depends on the kind ofservices offered by the defendant and the consideration
chargedfrom the plaintiff. A patient admitted to a luxury hospital for about Rs.3000
or 5000 a day would be justified in demanding higher and sophisticated degree of
care, comfort, convenience and recovery than just sterilization from infection as could
be expected in the general ward ofa hospital.
3)Damage- It is also necessary that the defendant's breach ofduty must cause damage
to the plaintiff. The plaintiff has also to show that the damage thus caused is not too
remote a consequence ofthe defendant's negligence.
There are two defences a defendant can use ifthey are found liable

The first is that the claimant accepted there was a risk ofinjury or loss, in which casethe defend­
ant will not be liable. Medical practitioners and hospitals, for example,
often use the "consent form" that patients are required to sign before a procedure oroperation.
Other industries use contracts describing that the procedure is not guaranteed to produce the re­
quired result but is the best that can be offered. Ifa purchaser signs such a document, he is unlikely
to succeed in a claim

The second defence is contributory negligence. Ifthe claimant can be shown to havebeen aware
ofthe risk but declined to take appropriate precautions, then any awardmay be reduced.

The practical application of negligence law in a business is proper and careful manage­
ment, attention to actions that may cause damage to third parties and,secondly, proper and
full insurance against a failing that may result in a claim.

5. Discuss the essential requirement for "Nuisance".Dec 21)

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LAW OF TORTS NOTES BY PRAVEEN B S (ASS.PROF. O F AL-AM E E N LAW COLLEG E )

The word 'Nuisance' is derived from the French word 'nuire' and the Latin word 'nocere'
which means to do hurt or to annoy. .Blackstone describes Nuisance as something that
"worketh hurt, inconvenience or damage.

Nuisance is an activity or state ofaffairs that interferes with the use ofenjoyment ofland
or rights over land or with the health, safety, or comfort of the public at large. In simple
words, Nuisance is an in injury to the right ofa person in possession ofproperty to undis­
turbed enjoyment ofit and results from an improper use ofby another person ofhis own
property

According to Winfield:....:. a tort ofnuisance means an unlawful interference with a per­

son's use or enjoyment ofland or some right over, or in connection with it.

According to Salmond, " the wrong ofnuisance consists in causing or allowing without
lawful justification but not so as to amount trespass, ifescape ofany deleterious thing from
his land or from elsewhere, into land in the possession ofthe plaintiff for example, water,
smoke, smell, fumes, gas etc.

Meaning: Nuisance has been defined as an injury to the right ofa person in possession of
a property to undisturbed enjoyment of it and results from an improper use by another
person ofhis own property. The essence oftort ofnuisance is interference of enjoyment
ofland. Music is always concerned with invasion ofinterest in the enjoyment ofland.

In this kind oftort the wrongdoer does not enter the property in possession ofanother. He
uses his property in such a manner that he interferes with comfort ofa person in possession
ofanother person.

Essentials of Nuisance

In order that nuisance is actionable tort it is essential that there should exist.

I .Wrongful Act

2.Damage or loss or inconvenience or annoyance caused to another.

40
LAW OF TORTS NOTES BY PRAVEEN B S (ASS.PROF. OF AL-AM E E N LAW COLLEG E )

Examples: Noise, smell , pollution ofair, water etc ...

The 2 main heads ofNuisances are,

1. Injury to the property

2. Interference with personal discomfort.

Case law: Ushaben Navinchandra Trivedi v/s Bhagya Laxmi Chitra Mandri,

Facts of the case: In this case the plaintiff filed a suit claiming a permanent injunction
against the defendant (producer, director, writer etc of the film) "Jai Santhoshi maa" re­
straining them from exhibiting the cinema picture "Jai Santhoshi maa".

The plaintiff stated that the persons having interest in religion and mythology will be at­
tracted by the picture and when the same is seen by them it will hurt the feeling as goddess
saraswathi, laxmi and paravathi are depicted jealous.

Orders: The Gujarat high court dismissed the appeal and held that the defendants were not
liable . because the defendant have clarified at the very commencement ofthe film that the
entire film is imaginary and hence film is not a annoyance and the hurt to religious feelings
is not recognized as a civil actionable wrong.

Kinds of Nuisance:
There are two Kinds ofNuisance
• Public Nuisance, and
• Private Nuisance

• Public Nuisance:

Public Nuisance is a crime. According to Section 268 of the Indian Penal Code, Public
Nuisance is a Criminal offence. It says that A person is guilty of a public nuisance who
does any act or is guilty ofan illegal omission which

causes any common injury, danger or annoyance to the public or to the people in general
41
LAW OF TORTS NOTES BY PRAVEEN B S (ASS.PROF. OF AL-AM E E N LAW COLLEG E )

who dwell or occupy property in the vicinity, or which must necessarily cause injury, ob­
struction, danger or annoyance to persons who may have occasion to use any public right.

Public Nuisance can only be the subject ofone action, otherwise, a party might be ruined
by a million suits.
Public nuisance does not create a civil cause of action for any person. In order that an
individual may have a private right ofaction in respect ofa public nuisance, the following
must be proved
• He must show a particular injury to himselfbeyond that which is suffered by the rest
ofpublic.
• Such injury must be direct and not mere consequential injury.
• The injury must be ofsuspension character.

Relevant Case law :

Soltau v De Held, (1851) Sim NS 133

In this case, the plaintiff resided in a house next to a Roman Catholic Chapel ofwhich the
defendant was the priest and the Chapel Bell was Rang at all hours ofthe day and night. It
was held that the ringing was a public nuisance and the plaintiff was held entitled to an
injunction.

• Private Nuisance:

Private Nuisance is the using or authorising the use ofone's property, or ofanything under
one's control, so as to injuriously affect an owner or occupier of property by physically
injuring his property or affecting its enjoyment by interfering materially with his health,
comfort or convenience.

Private nuisance in contrast to the public nuisance is an act affecting some particular indi­
vidual or individuals as distinguished from the public at large. It cannot be made the sub­
ject ofan indictment, but maybe the ground ofcivil action for damages or an Injunction
or both.

42
LAW OF TORTS NOTES BY PRAVEEN B S (ASS. P ROF. OF AL-AM E E N LAW COLLEG E )

Essentials of Private Nuisance

Essentials ofPrivate Nuisance are ( 1) an unlawful act, and (2) damage actual or presumed.
Damage actual or presumed is an essential element for an action on nuisance.
Kinds of Private Nuisance:
There are three kinds of Nuisance
• Nuisance by encroachment on a neighbour's land
• Nuisance by direct physical Injury to a neighbour's land.
• Nuisance by interference with a neighbour's quiet enjoyment ofhis life.
Highway :If a nuisance is created on a highway by a private individual, liability would
arise ifany person is injured as a result ofwhat he has been done irrespective ofnegligence.
Ifanything is placed on a highway which is likely to cause an accident being an obstruction
to those who are using the highway on their lawful occasion such as vehicle unlighted and
unguarded standing there at night and an accident results, there is an actionable nuisance.

Relevant Case law

Ware Vs. Garstone Haulage Co. Ltd. (1944) KB 30

In this Case, A trailer attached to a lorry was kept unattended on the highway. At night
time no near light was shown. A motorcyclist ran into the trailer. It was held that it was an
obstruction on the highway and as such as a public nuisance.

6. Write an elaborate statement on the concept of "remoteness of damages" with cases.Dec 21)
or

7. Discuss the principle of remoteness of damage with special reference to the cases of Re
Polemis and Wagon Mound.)(Oct 22) or

8. "In jure non remote causa sed proxima spectator". Explain the maxim with the help of
leading cases.(April 23)

Remoteness of damage is an interesting principle. Once the damage is caused by a wrong, there
have to be liabilities. The question is how much liability can be fixed, and what factor determines it.

43
LAW OF TORTS NOTES BY PRAVEEN B S (ASS. P ROF. OF AL-AM E E N LAW COLLEG E )

The principle of Remoteness of Damages is relevant to such cases. An event constituting a wrong
can constitute of single consequence or may constitute of consequences i.e. series of acts/wrongs.
The damage may be proximate or might be remote, or too remote.
Meaning

1. In law, the damage must be direct and the natural result ofthe consequence ofthe act ofthe
defendant. Otherwise, the plaintiff will not succeed. This is In jure non remota causased
proxima spectatur (In law the immediate, not the remote cause of any event that is to be
considered). The reason for this is that the defendant is presumed to have intended the natural
consequences, but not the remote damage. It means then that the defendant's act must be the
Causa Causans or the proximate (near) cause.

11. Novus actus interveniens: (new act intervening)

The act and the consequences are to be connected directly and the defendant will not be liable
for Novus actus interveniens and the consequences thereof.

Scott v. Shepherd (Squib case)

D threw a lighted squib into a crowd. It fell on X. who threw it further, It fell on Y who threw it
away. It fell on P, exploded and blinded one eye. Held, D was liable to P. Though X and Y had
intervened, D's act was the Causa Causans. The defendant pleaded novus actus intreveniens but
the court rejected thisdefence.

In Haynes v. Harwood, the unattended horse van ofD started running as some boys had thrown
stones at the horse. The policeman who attempted to stop the horse was injured. Held D liable. The
contention that the throwing ofstones was an intervening cause and hence D was not liable was
rejected by the court.
Illustration
A person is going driving on a road, he hits a girl on the footpath, the girl tumbles on a bicycle
breaks her finger, the bicycle man loses his balance and gets in front ofa fuel tanker, the tanker to
save the man on the bicycle steers left but unfortunately hits the railing to a river bridge and falls
into it, the lock ofthe fuel tank breaks and the oil spills into the river , the driver with the truck
drowns.

44
LAW OF TORTS NOTES BY PRAVEEN B S (ASS.PROF. OF AL-AM E E N LAW COLLEG E )

In the above case:

The girl being hit is the direct damage and it is the direct damage caused by the act ofA, the
damage caused to the cyclist is proximately caused by the falling ofthe girl and is remote to the act
ofA, the damage caused to the truck driver and the loss ofmaterial(fuel and fuel tank) is remote to
the act ofA and proximate to the act ofthe cyclist. And it is to be noted that the accountability to
negligence is made on the assumption that the person is aware ofthe fact that rash driving can lead
to fatalities. (though the expected and the actual results might not be the same).

Now, the starting point ofany rule ofthe remoteness ofdamage is the familiar idea that a line must
be drawn somewhere. It would be unacceptably harsh for every tort feasor to be responsible for all
the consequences which he has caused.
Certainly, the question ofwhere to draw the line on recover-ability ofconsequential losses cannot
be answered by a mathematically precise formula. Judges have used their discretion from time to
time, and in that process, two formulas have been highlighted:

1. The test ofreasonable foresight

11. The test ofdirectness

111. Direct damage.

The Test OfReasonable Foresight

Ifthe consequences ofa wrongful act could be foreseen by a reasonable man, then they are not too
remote. Ifon the other hand, a reasonable man could not have foreseen the consequences, then they
are too remote. And, an individual shall be liable only for the consequences which are not too
remote i.e. which could be foreseen.

The Test Of Directness

According to the test ofdirectness, a person is liable for all the direct consequences ofhis wrongful
act, whether he could foresee them or not; because consequences which directly follow a wrongful
act are not too remote.

Two Tests of Remoteness

45
LAW OF TORTS NOTES BY PRAVEEN B S (ASS. P ROF. OF AL-AM E E N LAW COLLEG E )

Now that we have seen that the law deems a person liable for the mJunes caused which
were proximate consequences ofthat 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 oflegal history:
1. Test ofreasonable foresight; and
2. Test ofdirectness.
Test ofReasonable Foresight
According to this test, ifthe consequences ofa wrongful act could have been foreseen by a reasonable
man, they are not too remote.
Pollock was an advocate of this test of remoteness. He opined, in cases Rigby v. Hewitt and
Greenland v. Chaplin, that the "liability ofthe 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 itselfto say that the defendant did
not foresee the consequences. Instead, it would be for the Court to decide, upon the standards of
reasonability, whether the consequence should have been foreseen by the defendant or not.

This test ofreasonable foresight lost its popularity to the test ofdirectness. 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, ifthe defendant could foresee any damage, he will be liable for all the
direct consequences of his wrongful act. To understand this particular test of remoteness better, it
would suffice to look at the Re Polemis Case.

Re Polemis and Furness, Wilthy & Co.

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

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

In this case, the Privy Council held the owners ofthe 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 ofthe 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 ofthe Test ofReasonable Foresight

The test ofdirectness that was upheld in the Re Polemis case was considered to be incorrect and was
rejected by the Privy Council 40 years later in the case of Overseas Tankship (UK) Ltd. v. Morts
Dock and Engg. Co. Ltd., also popularly known as the Wagon Mound Case.

The facts ofthis 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 ofabout 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 ofoil 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 ofdamage 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:

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"It does not seem consonant with current ideas ofjustice or morality that, for an act ofnegligence,
... the actor should be liable for all consequences, however unforeseeable."

They also maintained that "according to the principles ofcivil liability, a man must be considered to
be responsible only for the probable consequences ofhis act".

And therefore with this case, the test ofreasonable 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 oftort.

Wagon Mound Ruling Followed in Subsequent Cases

Hughes v. Lord Advocate

In this case, workers employed by the Post Office left a manhole in the road unattended. Before they
left the site, they covered the manhole with a tarpaulin entrance and placed several paraffin lamps
around it. The 8-year-old plaintiff, attracted by the lamps, was playing around the manhole along
with another child. One ofthe 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 ofthe
Post Office, the type ofthe damage (bums) was. Therefore, the defendants were held liable.

Doughty v. Turner Manufacturing Co. Ltd.

In this case, the plaintiff was employed by the defendant. Owing to the negligence ofother 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 ofthe damage to the plaintiff. The defendants were held not liable.

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

The Court ofAppeals applied the test ofreasonable foreseeability in this case. In this case, due to the
defendant's workers' negligence, an electric cable was damaged. As a result ofthis damage, a long

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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 ofthe 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.

7.Explain the various kinds of remedies available in tort. (Dec 19)

LEGAL REMEDIES
Remedies (reliefs available to the aggrieved person) may be classified as under:
1 . Legal Remedies
a) Judicial Remedies
Damages, Injunction, Specific Restitution of Property
b.) Extra Judicial Remedies
i) Using ADR methods
ii) SelfHelp provided by law
iii) Expulsion oftrespasser, Re-entry on land, Recapture of goods, Distress ofdamage feasant, Abate­
ment ofnuisance.
2. Extra Legal Remedies

SelfHelp not provided by law

Judicial Remdies
1. Damages
2.lnjunction
3. Specific Restitution of Property

l. DAMAGES
Damages which law presumes to be the natural consequences of the defendant's acts are
general damages, whereas damages the law will not infer unless proved at the trial are

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special damages.
e.g. medical expenses incurred by plaintiff due to defendant's negligent driving will give
general damages, whereas if he claims nervous shock, then he has to prove and will get
special damages.
Types of Damages

Damages are ofthe following five kinds

1 ) Nominal Damages
2) Contemptuous Damages
3) Real or Substantial Damages
4) Exemplary Damages
5) Prospective Damages

1. Nominal Damages: Damages which are awarded by the Court to the plaintiff not by
way ofcompensation but by way ofrecognition ofsome legal rights ofplaintiff which the
defendant has infringed are nominal damages.Nominal damages are available for torts
which are actionable per se.
Ashby v. White, Where a rightful voter's right to vote was wrongfully and maliciously
denied at an election, he was awarded damages nominal in nature, though the candidate
in whose favour he wanted to cast his vote won the elections.

Constantine v. Imperial London Hotels Ltd:, The owner ofa hotel wrongfully refused
a West Indian Cricketer entry in their hotel. Although he suffered no loss, the wrongful
exclusion was held to be tortuous, was given nominal damages.

2.Contemptuous Damages: Contemptuous damages are an indication of the law court

expressing an opinion of the claim of the plaintiff or its disapproval of is conduct in the
matter. They differ from nominal damages as they may be awarded for any tortuous act
whether actionable per se or not.

3.Real or Substantial Damages: Damages which are assessed and awarded as compensa­
tion for damage actually suffered by the plaintiff, and not simply by way ofmere recog­
nition ofa legal right violated are called real or substantial damages.

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4.Exemplary Damages: Exemplary damages are awarded where there has been great injury
by reason ofaggravating circumstances accompanying the wrong. Exemplary damages are
awarded not by way of compensation for the plaintiff, but by way ofpunishment for the
defendant.

In Rookes v. Barnard, the Court laid down that exemplary or punitive damages can be
awarded in three cases:

Oppressive, arbitrary or unconstitutional action by servants ofthe Government.

In Bhim Singh v. State of J & K, Bhim Singh, MLA of J & K was arrested when he
was going to attend Assembly session. The Supreme Court considered it to be appropri­
ate case to award exemplary damages.

a.Cases where the defendant's conduct has been calculated by him to make a profit for
himselfwhich may well exceed the compensation payable to the plaintiff.

In Manson v. Associated News Papers Ltd. , the court held that ifa person who is possessed
of material which would be defamatory if published, and who does to really believe it
to be true at all, decides to publish it simply because he can make a profit from publishing it
and because he reckons that any damage she might have to pay would be so small that it
would be well worth it, then that is a man, and that is the only man, against whom an award
ofexemplary damages can be made.

a.Where exemplary damages are expressly authorized by the statute.

Prospective Damages: Damages which are likely to result from the wrongful act of the
defendant but they have not actually resulted at the time when the damages are being
decided by the Court.

In Subhas Chandra v. Ram Singh, appellant was hit by a bus driver. He suffered
several injuries resulting in his permanent disability to walk without a surgical shoe. Because
of the disability he could not take employment in certain avenues. The Motor Claims
Tribunal awarded him compensation amounting to Rs. 3,000 under the heading probable
further loss. The amount ofcompensation on appeal was increased to Rs.7000 by the Delhi

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High Court.

2. IN.JUNCTIONS
An injunction is an order ofthe court directing the doing of some act or restraining the
commission or continuance ofsome act.
Injunctions are of classified in two ways:
1 . Prohibitory and Mandatory Injunction
2 . Permanent and Temporary Injunction

1. Prohibitory and Mandatory Injunction: An injunction 1s an order of a court directing a

person to do or to forbear from doing an act.
Ifthe injunction is an order to do an act, it is called mandatory injunction. e.g., order to remove a
structure illegally built by defendant on the plaintiff's land, order to remove the obstruction violating
plaintiffs right to enter upon his own land.
If the order is to forbear from doing an act, it is called prohibitory injunction. e.g.order not to
encroach upon the plaintiffs property, order not to cause nuisance. It is also called 'preventive in­
junction', 'perpetual injunction' or 'prohibitory injunction'.
2. Permanent and Temporary Injunctions: To obtain an injunction, the plaintiff has to insti­
tute a suit against the defendant, and after hearing the same, the court will grant injunction in
deserving cases. This order is permanent.
In case of an order for mandatory injunction, once the act ordered is done, the order is discharged.
But in case ofa prohibitory injunction, the act prohibited cannot be done at any time. Hence, pro­
hibitory injunction is also called permanent injunction or perpetual injunction.
Section 37, Specific ReliefAct, 1963 defines temporary and perpetual injunction as follows:
"A temporary injunction is such as is to continue until a specified time, or until the further order of
the court. A perpetual injunction is one by which the defendant is perpetually enjoined from the
assertion of a right, or from the commission of an act, which could be contrary to the right of the
plaintiff'
Temporary Injunction: It is also called as 'interlocutory injunction'. It does not mean determina­
tion in favour of the plaintiff but simply shows the concern of the Court that there is a substantial
question requiring consideration.
E.g. A and B have a dispute regarding title over a plot ofland, which is in A's possession. B also

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claims to have the title of the same plot. Case is pending before the court; A wants to begin with
construction on the said plot. B may obtain temporary injunction by filing an interlocutory applica­
tion in the suit pending before the court.
Perpetual Injunction: If the court after going into the matter, finds that the plaintiff is entitled
to the relief, the temporary injunction will be replaced by a perpetual injunction. A perpetual in­
junction is a final order and is issued after the full consideration ofthe case.
SPECIFIC RESTITUTION OF PROPERTY

When one is wrongfully dispossessed ofhis movable or immovable property, the court may order
that the specific property should be restored back to the plaintiff.
e.g. action for ejectment, the recovery ofchattels by an action for detinue etc.

As per section 6 ofthe Specific ReliefAct, 1963 a person who is wrongfully dispossessed ofimmov­
able property is entitled to recover the immovable property.
As per section 7 ofthe Specific ReliefAct, 1963 a person who is wrongfully dispossessed ofmovable
property is entitled to recover the movable property.
EXTRA-JUDICIAL REMEDIES

Following extra-judicial remedies can be availed by the plaintiff.

1. Expulsion oftrespasser

2. Re-entry on land

3 . Recapture ofGoods

4. Abatement ofNuisance

5. Distress Damage Peasant

1. EXPULSION OF TRESPASSER

A person can resort to legitimate force in order to repel an intruder or trespasser provided the force
used by him does not transgress the reasonable limits ofthe occasion i.e. he must not use dispropor­
tionate force.
2. RE-ENTRY ON LAND

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A man wrongfully disposed of his land may retake its possession, if he can do so in a peaceful
manner and without the use offorce.
Section 6 ofthe Specific ReliefAct, 1963 provides that ifone in possession ofimmovable property
is disposed, otherwise than by due course of law, he may, within six months, sue to recover
possession without reference to any title set up by another, which is left to be determined in a separate
action.
3. RECAPTURE OF GOODS
A person entitled to the immediate possession of chattels may recover them from any person
who has then been in actual possession and detain them, provided that such possession was wrongful
in its inception.
4. ABATEMENT OF NUISANCE
Abatement means removal ofthe nuisance by the party injured. It is justifiable provided it must be
peaceable, without danger to life or limb and after notice to remove the same, if it is necessary to
enter another's land to abate a nuisance, or where the nuisance is a dwelling house in actual occu­
pation or a common, unless it is unsafe to wait.
5. RE-ENTRY ON LAND
A man wrongfully disposed of his land may retake its possession, if he can do so in a peaceful
manner and without the use offorce.
Section 6 ofthe Specific ReliefAct, 1963 provides that ifone in possession ofimmovable property
is disposed, otherwise than by due course of law, he may, within six months, sue to recover
possession without reference to any title set up by another, which is left to be determined in a separate
action.
6. RECAPTURE OF GOODS
A person entitled to the immediate possession of chattels may recover them from any person
who has then been in actual possession and detain them, provided that such possession was wrongful
in its inception.
7. ABATEMENT OF NUISANCE
Abatement means removal ofthe nuisance by the party injured. It is justifiable provided it must be
peaceable, without danger to life or limb and after notice to remove the same, ifit is necessary to
enter another's land to abate a nuisance, or where the nuisance is a dwelling house in actual occu­
pation or a common, unless it is unsafe to wait.

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8. Define defamation. What are the essentials of defamation? Dec 21) (Dec 19)

Defamation is injury to the reputation ofa person. Ifa person injures the reputation ofanother
he does so at his own risk, as in the case ofan interference with the property. A man's reputation is
his property, and ifpossible, more valuable, than other property.
Any intentional false communication, either written or spoken, that harms a person's reputation; de­
creases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile,
or disagreeable opinions or feelings against a person, is called defamation.
Definition:
1. Winfield:- Defamation is the publication ofa statement which tends to lower a person in the
estimation ofright thinking members ofsociety generally or which tends to make them shun
or avoid that person.

Defamation is the publication concerning a person of a statement in words, writing by pictures or

significant gestures which exposes such person to feeling ofhatered, redicule or contempt whereby
he suffers injury to his reputation.
Thus defamation consists in using any language or representation oral or written tending to
bring the person ofwhom it is published into hatred, redicule, or disgrace or to injure him in respect
ofhis vocation.
Essential of defamation.:.
Conditions ofliability for defamation,
I . The statement must be defamatory
2. The statement must refer to the plaintiff &
3. The statement must be published.

Criminal and Civil Defamation-

Criminal Defamation: Criminal defamation is the act ofoffending or defaming a person by com­
mitting a crime or offence. For criminal defamations, you could always get the liable person or party
prosecuted. It is studied in IPC as a criminal act.
Civil Defamation: Civil defamation involves no criminal offence, but on account ofthis kind of
defamation, you could sue the person to get a legal compensation for your defamation. It is studied

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under law oftorts i.e. as a civil wrong.

Kinds ofDefamation are as follows:
1. Libel , 2. Slander-
1.Libel :- a libel is a publication ofa false and defamatory statement in some permanent from tending
to injure the reputation ofanother person without lawful justification or excuse. In an action for
libel the statement complained ofmust be false, permanent in nature and published.
Libel must be in some permanent and visible form such as writing, printing, pictures, or even
by means ofa cinema film or gramophone record.
Libel is in all cases actionable per se that is without proofofactual damage when a statement is
made in a permanent form the law presumes that ofnecessity the person defamed has suffered dam­
ages.

Case Law: Bairam V/s Sukh sampat Lala

Facts of the case: In this case the plaintiff was a property broker, who used to deal in property.
The defendant in "Lok Jiwan" a daily newspaper published an advertisement which related to plain­
tiff in which the plaintiff was imputed with doing fraudulent business.
For this publication the plaintiff brought an action against the defendant and the publisher of
the advertisement.
Order: The court accepted the contention ofthe plaintiff and decreed the suit in the favour
ofthe plaintiff.
Case Law: Youssoupoff v. MGM Pictures Ltd
The plaintiff (herselfa Princess) complained that she could be identified with the
character Princess Natasha in the film 'Rasputin, the Mad Monk'. On the basis that the
film suggested that, by reason ofher identification with 'Princess Natasha', she had
been seduced by Rasputin. The defendant contended that ifthe film indicated any
relations between Rasputin and 'Natasha' it indicated a rape ofNatasha and not a
seduction.
Held- In a cinema film, not only the photographic part ofit is considered to be libel but
also the speech which synchronizes with it also. Defamation could include words
which cause a person to be shunned or avoided: 'not only is the matter defamatory ifit
brings the plaintiff into hatred, ridicule, or contempt by reason ofsome moral discredit
on [the plaintiffs] part, but also ifit tends to make the plaintiff be shunned and avoided
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and that without any moral discredit on [the plaintiffs] part. Thus, she was awarded
with damages.
In D.P. Choudhary v. Kumari Manjulata
The plaintiff - respondent Manjulata about 17 years ofage belonged to a distinguished
family and studied B.A. There was a publication ofa news item in a local daily Dainik
Navjyoti that last night she ran away with a boy named Kamlesh; but she had gone to
attend night classes. The news item was untrue and negligently published with utter
irresponsibility. She was shocked and ridiculed by others. It was held that the action
was defamatory and she was entitled with the damages ofRs 10000/- by way ofgeneral
damages.
Essentials of Defamation -
There are three main essentials ofDefamation viz.,
1.The statement must be published
Defamation is the publication of a statement which tends to lower a person in theestimation of
right thinking members ofsociety generally or which tends to make them shun or avoid that person.
The standard to be applied is that ofa right-minded citizen. A man offair average intelligence, and
not that of a special class of persons whose values are not shared or approved by the fair-minded
members ofthe society generally.
In Ramdhara v. Phulwatibai
It has been held that the imputation by tge defendant that the plaintiff, a widow of45 year age, is
a keep ofthe maternal uncle ofthe plaintiffs daughter-in-law, is not a mere vulgar abuse but a defi­
nite imputation upon her chastity and thus constitutes defamation.
In South Indian Railway Co. v. Ramakrishna
A ticket checker ofrailway asking for the identity proofand other documents as a part ofhis duty
is no defamation, as he has not published any defamatory statement.
THE INNUENDO -
Sometimes the statement may be prima facie innocent but because of some latent orsecondary
meaning may be considered to be defamatory. When the natural and ordinary meaning is not defam­
atory but the plaintiff wants to bring an action ofdefamation, he must prove the latent or secondary
meaning i.e.,Innuen do which makes the statement defamatory. for e.g., the statement that a lady has
given birth to a child is defamatory when the lady is unmarried.
Intention to defame is not necessary
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LAW OF TORTS NOTES BY PRAVEEN B S (ASS. P ROF. OF AL-AM E E N LAW COLLEG E )

In the Scottish case of Morrison v. Ritchie & Co. where damages were recovered against the
proprietors ofa newspaper who in all innocence had announced in the paper that a lady, who had in
fact been married only a month, had given birth to twins.
2.The statement must refer to the plaintiff
If the person to whom the statement was published could reasonably infer that the statement
referred to the plaintiff, the defendant is nevertheless liable.
In Newstead v. London Express Newspapers Ltd.
The defendants published an article stating that 'Harold Newstead, a Camberwell man' had been
convicted ofbigamy. The story was true ofHarold Newstead, a Camberwell barman. The action for
defamation was brought by another Harold Newstead, the barber. As the words were considered to
be understood as referring to the plaintiff, the defendants were liable.
3- Defamation must be published
Publication means making the defamatory matter known to some person other than the person
defamed and unless that is done, no civil action for defamation lies.
In the case of Mahender Ram v. Harnandan Prasad: it was said when a defamatory letter is
written in urdu to the plaintiff and he doesn't know urdu, he asks a third person to read it , it is not
defamation unless it was proved that at the time ofwriting letter defendant knew that urdu was not
known to the plaintiff.
2.SLANDER:-
A slander is a false and defamatory, verbal or oral statement in transitory forms intending to
injure the reputation ofanother without lawful jurisdiction or excuse.
In slander the defamatory statement is made in spoken words, or in some other transitory
form, whether visible such as gestures or in articulate but significant sound.
Slander when actionable per se
Slander is actionable one on proofofspecial damage mere loss ofreputation is not sufficient
to constitute an action for spoken words, there must be loss of some material advantage some loss
which is pecuniary or at any rate, capable ofbeing estimated in money.

In the following cases , however slander is actionable per se is special damage to the plaintiff
need not be proved.
1. When criminal offence is charged
2. Imputation ofvirulent disease
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3. Incompetence ofunfitness for office, profession or trade

4. Imputation ofunchastity ofwomen or girl
5. Aspersion on caste.

DEFENCES AVAILABLE:
There are three defenses ofdefamation namely -
1- Justification or truth -Under criminal law, merely proving that the statement was true is no
defence but in civil law merely showing truth is a good defense.
2- Fair Comment-
• The comment must be an expression ofopinion rather than assertion offact.
• The comment must be fair i.e. without malice.
• The matter commented upon must be ofpublic interest.
3- Privilege: There are certain occasions when the law recognizes the right to freedom ofspeech
outweighs the plaintiffs right to reputation, the law treats those occasions as
'Privileged'. These are further oftwo types -
Absolute privilege- No action lies for the defamatory statement even though the
statement is false or made maliciously. It applies to :
Parliamentary Privilege, Judicial proceeding and State communication.
Qualified privilege- It is necessary that the statement must have been without
malice. The defendant has to prove that statement was made on a privileged
occasion fairly.
Distinction between libel and slander

a) In libel the defamatory statement is made in some permanent and visible form suchas writing, printing,
pictures or effigies. In slander on the other hand, defamatory statement is made by some spoken
words or some other transitory form, whether visible or audible, such as gestures, hissing or such
other things.
b) Libel is not merely actionable tort but also a criminal offence, while slander is a civil injury only and
not a criminal offence.
c) Libel is actionable per se i.e., without proofofactual damage, whereas slander is not actionable per
se expect in certain cases.
Conclusion: It can be concluded that no person should not speak or defame any person in the society
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because the statutes or reputation of the person will be the important and precious property of any
person in the society without which he cannot exist.

9.Define Malcious prosecution. what are the essential ingredients to be proved to make the
defendat liable ? Discuss with cases.(April 23) or

IO.What is Malicious Prosecution? Explain its essentials.)(Oct 22)(6 Marks)

Introduction:

Proceedings instituted maliciously may include not only malicious prosecution and malicious arrest
but also malicious bankruptcy and liquidation proceeding (civil proceedings), malicious execution of
process against property, and malicious search. Malicious prosecution is the malicious intention of
unsuccessful criminal or bankruptcy or liquidation proceedings against another without reasonable
or probable cause. Generally, it can be said that the malicious prosecution is defined as a judicial
proceeding instituted by one person against another, from wrongful or improper motive, without any
reasonable and probable cause to justify it.

A malicious prosecution consists in maliciously causing process to be issued, whereas an abuse of

process is the employment oflegal process for some purpose other than that which it was intended
by the law to affect the improper use ofa regularly issued process."

"A judicial proceeding instituted by one person against another, from wrongful or improper motive
and without probable cause to sustain it is a malicious prosecution."

Following are the essential elements which the plaintiff is required to prove in a suit for damages for
malicious prosecution:-

• Prosecution by the defendant.

• Absence ofreasonable and probable cause.

• Defendant acted maliciously.

• Termination ofproceedings in the favour ofthe plaintiff.

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LAW OF TORTS NOTES BY PRAVEEN B S (ASS. P ROF. OF AL-AM E E N LAW COLLEG E )

• Plaintiff suffered damage as a result ofthe prosecution.

• Prosecution by the defendant

The first essential element which the plaintiff is required to prove in a suit for damages for malicious
prosecution is that he (plaintiff) was prosecuted by the defendant. The word "prosecution" carries a
wider sense than a trial and includes criminal proceedings by way ofappeal, or revision._In the case
of Musa Yakum v. Manila/it was held that it is no excuse for the defendant that he instituted the
prosecution under the order ofa Court, ifthe Court was moved by the defendant's false evidence to
give the order.

In the case ofKhagendra Nath v. Jacob Chandra, the Court held that merely bringing the matter
before the executive authority did not amount to prosecution and, therefore, the action for malicious
prosecution could not be maintained.

It is significant to note that departmental enquiry by disciplinary authority cannot be called

prosecution.

• Absence of reasonable and probable cause

In a suit for damages for malicious prosecution, the plaintiff has also required to prove that the
defendant prosecuted him without reasonable and probable cause. The question relating to want of
reasonable and probable cause in a suit for malicious prosecution should be decided on all facts
before the Court. In the case ofAntarajami Sharma v. Padma Bewa, it has been said that law is
settled that in a case ofdamages for malicious prosecution, onus ofproofofabsence of reasonable
and probable clause rests on the plaintiff.

The existence of reasonable and probable cause is of no avail if the prosecutor prosecuted in
ignorance of it. The dismissal of a prosecution or acquittal of the accused does not create any
presumption of the absence of reasonable and probable cause. If a man prefers an indictment
containing several charges, whereoffor some there is, and for others there is not, probable cause, his
liability for malicious prosecution is complete.

• Defendant acted maliciously:-

In a suit for damages for malicious prosecution, it is another essential element which the plaintiff is

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required to prove that the defendant acted maliciously in prosecuting him and not with a mere
intention of carrying the law into effect. Malice need not be a feeling of enmity, spite or ill will or
spirit of vengeance but it can be any improper purpose which motivates the prosecutor, such as to
gain a private collateral advantage.

In the case ofBank ofIndia v. Lekshmi Das,_the Court reiterated the Indian position that in malice
absence ofa probable and reasonable cause must be proved. The proceedings complained ofby the
plaintiff must be initiated in a malicious spirit that is from an indirect and improper motive and not
in furtherance of justice. Malice may be inferred upon proof of absence of honest belief in the
accusation and consequent want of reasonable and probable cause for instituting the prosecution
complained of

It is not necessary that the defendant should be acting maliciously right from the moment the
prosecution was launched. If the prosecutor is innocent in the beginning but becomes malicious
subsequently, an action for malicious prosecution can lie. If during the pendency of criminal
prosecution, the defendant gets positive knowledge of the innocence of the accused, from that
moment onwards the continuance ofthe prosecution is malicious.

• Termination of proceedings in the favour of the plaintiff:-

In a suit for damages for malicious prosecution, it is essential to show that the proceedings
complained of terminated in favour of the plaintiff. Termination in favour ofthe plaintiff does not
mean judicial determination ofhis innocence; it means absence ofjudicial determination ofhis guilt.
Malice need not be a feeling of enmity, spite or ill will or spirit of vengeance but it can be any
improper purpose which motivates the prosecutor, such as to gain a private collateral advantage.

No action can be brought when the prosecution or the proceedings are still pending. It is a rule oflaw
that no one shall be allowed to allege ofa still pending suit that it is unjust.

• Plaintiff suffered damage as a result of the prosecution:-

In a suit for damages for malicious prosecution, it is another essential element which the plaintiff is
required to prove that The plaintiff suffered damage as a result of the prosecution. In a claim for
prosecution, the plaintiff can thus claim damages on the following three counts:-
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• Damage to the plaintiff's reputation,

• Damage to the plaintiff's person,

• Damage to the plaintiff's property.

Conclusion: It can be said that the malicious proceedings are that proceedings which are initiated
with malicious intent. The elements (i.e. prosecution by the defendant, absence of reasonable and
probable cause, defendant acted maliciously, termination ofproceedings in the favour ofthe plaintiff
and plaintiff suffered damage as a result of the prosecution) which are necessary to the plaintiff to
prove in a suit for damages for malicious prosecution must be fulfilled. However, on the basis the
facts and circumstances, the Court should decide whether the suit is filed maliciously or not.

12.Define 'Assault' and distinguish it from "Battery". State the circumstances when they may
be justified? Dec 21) (Oct 21)

ASSAULT
Assault according to Dr. Winfiled, is an act ofthe defendant which causes in the minds ofthe plain­
tiff reasonable apprehension ofthe infliction ofa battery on him by the defendant. Thus in assault
there should be a reasonable apprehension in the mind ofthe plaintiff that defendant is about to use
force or attempting to use force against him, whether any harmedis caused or not. It is an attempt
or offer to apply force to another's person. Anyone who intentionally brings any material object
into contact with another person is said to have applied force to the person ofthat other. Example­
to throw stone or water upon a person or to strike a person with a stick.
Essentials ofassault
In an action for assault the plaintiff has to prove the following things:
1) Intention to use force- the first thing which the plaintiff has to show in an action forassault is that
there was some gesture or preparation which constituted a force. Merewords are not enough. There
must in all cases be the means ofcarrying the threat into effect. IfA while lying on his bed says to
B "I will beat you" it will not be an assault as there is neither gesture nor preparation.
2) Capacity to use force- in order to constitute an assault it is also necessary that the person so as­
saulted must, on reasonable grounds believe that the person assaultinghas the ability to apply the
force so attempted by him. It is clear to the plaintiff thatthe defendant has no present ability to carry
out the threat because he is too far awayto bring the threat into action, there is no assault. Example

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a man makes a gesture to throw stone at a person who is sitting at a height, where by throwing it is
humanely impossible to make the stone reach, the latter has no reasonable ground to believe that
he will be hit. In this case, though a man makes an attempt, there isno assault as the second man has
no reason to believe that the first man can hit him.Example:Stephens 's v Myers In a turbulent parish
council meeting, the meeting voted to have the defendant ejected. He refused, and advanced toward
the chairmanwaving his clenched fist and saying he would rather throw him from the chair. He was
stopped before getting within striking distance, but the chairman sued for assault. The claim suc­
ceeded. Tindal CJ said: 'It is not every threat, when there is no actual personal violence, that con­
stitutes an assault, there must, in all cases, be the means ofcarrying the threat into effect.'

BATTERY

According to Salmond" battery is the application of force to the person of another without
any lawful justification".Battery is an accomplished assault. The attempt to strike with stick is an
assault, but to strikeactually is battery. The application ofeven the slightest amount offorce is ac­
tionable. Battery neednot be accompanied by bodily harm. Even to touch a person without his con­
sent or any legal justification is battery.

Essential of battery; In an action for battery the plaintiff has to prove the following things:

1) Use offorce: the first element which one has to prove in an action for battery is the
use offorce to the person ofanother like slapping or pushing. It may be done by bringing
an object into contact with him like throwing stone on him. There can be no battery unless
there is contact with the plaintiffs person. Even to touch a person without his consent or
some lawful reason is actionable. Even an unwarranted kiss may be battery. But mere acci­
dental contact with body ofa person does not amount to battery. Such contacts cannot be
avoided in the modern times.
2) Force must be intentional: the use offorce must be intentional without lawful justi-
fication. Jostling one another in a crowd is not actionable as battery ifit is not done delib­
erately.
3) Without lawful justification: consent express or implied, is a lawful justification. A
friendly push or shaking hand is not battery. Similarly, certain acts done under authority or
statute do not amount to battery, like a parent chastising his child; policeman's laying hand
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on a thieffor arrest under warrant.

Distinction between assault and battery

In order to constitute battery bodily contact is necessary, whether it is direct application of

physical force for through the medium of some object or no. but in assault bodily contact is not
necessary and the act of the defendant which creates reasonable apprehension of use of force
against him constitutes assault. Example- to throw a stone at a person is assault and if the stone
falls upon him then it becomes battery.

13. What is conspiracy? What should be proved in an action for conspiracy? Refer to decided
cases. (April 23) (Dec 19)

The most famous definition of the tort of conspiracy was given by Lord Brampton, in the case of
Quinn vs Leathern, this was: " A Conspiracy is an unlawful association of two or more than two
persons, to do any act which is not legal according to the law of land or to do something harmful
towards another person or to carry out an act not in itselfunlawful, but by unlawful means."

Conspiracy can also be understood as a partnership between persons, where they come together to
commit or involve themselves in the planning ofsome act.

Illustration: Suppose there are three people, Mr.A, Mr.B, and Mr.C. Now B and C undergo an
agreement that clearly establishes that they are agreeing on the proposal to doing a fraudulent act
towards Mr.A. In such a case, this can be said to be a kind oftort ofconspiracy or civil conspiracy.

Any instance where conspiracy is done for the pursuance ofa wrongful act ofcivil nature can be said
to be Tort ofConspiracy.

Now, let us discuss the essentials ofa Civil Conspiracy:

Intention

Having an intention to injure or harm someone is the foremost essential ofthe tort ofconspiracy. For
an act to become a tortious conspiracy, there must be a common intention ofall the people involved
in the conspiracy to do an illegal act or an act which is contrary to the law. However, the degree of
intention to harm may differ and vary but the presence ofthe intention is an essential prerequisite.

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Ideally, individuals never do an act with the same motive but the crux ofthis theory is to see what
was the predominant purpose ofthe association for doing conspiracy. The point to be given attention
to is that only if the interest ofthe defendants is served by the act ,it will not be actionable even if
they were pleased by the losses and damage suffered by the claimant.

Illustration: Suppose Ram and Shyam form an association and they both collectively practice such
business by which they gain profits but at the same time, are causing heavy losses to Mohan. Now,
it was never their intention to harm Mohan but to gain profits. So, such an act would not be considered
a conspiracy.

Combination

It means that at least two or more than two people must be involved in the planning and there must
be concerted actions between them.

There may be cases where two or more than two people act with the same intention, but do this
separately. So, such an act would not amount to conspiracy. For an act to be considered as conspiracy,
it is necessary that the people working with the same intention must have agreed to that act mutually.

As stated in the case of Topan Das vs the State of Orissa, having an association with two or more
than two people is essential for conspiracy, as no one can conspire with themselves.

Illustration: For example, Ajay enters the house ofRohit for stealing money. At the same time, Ravi
also enters Rohit's house for stealing money. In this case, although the intention ofboth, Ajay & Ravi
was the same, they never formed an association. Thus, can not be charged under conspiracy.

Overt Act

Another essential ofthe Conspiracy under torts is that some overt act must be done by the defendants
which causes harm to some other person. It is not necessary that the whole conspiracy must be carried
out in the form ofaction. A single step towards the commission ofthe conspiracy may amount to the
offense.

For the overt act to be considered as essential, it is necessary that one ofthe contributors have acted
for the fulfillment ofthe intention behind the conspiracy.
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Thus, for a conspiracy to be considered as a Civil Conspiracy, it is necessary that one of the
conspirators has acted in furtherance ofthe plan.

Illustration:

Suppose 4 persons agree to do an illegal act. But, a mere agreement can not make the act to be
questioned. Suppose that the illegal act they agreed upon was robbery. So, unless one single step
towards committing a robbery is not taken up, they can not be made liable.

Types ofConspiracy Under Torts

Now, we'll be discussing different types ofConspiracy Under Torts. Following are the types:

a.General

b. Conspiracy to Injure

c. 'Unlawful Means' Conspiracy

a.General:

A general conspiracy is an unlawful/illegal association oftwo or more than two persons in pursuance
of an act, which is contrary to the law and is harmful to the others. In other words, if people are
forming an association with the intention ofharming others, then it would be considered as a general
conspITacy.

For example, during an act by the actors, a certain group ofpeople starts to hiss or start to boycott a
particular actor, then, the intention or the purpose ofthe act becomes relevant.

b.Conspiracy to Injure

This kind of conspiracy is also known as 'Crofter' Conspiracy, as this doctrine has emerged in the
case ofCrofter Hand Woven Harris Tweed Co Ltd v Veitch. It was laid down in this case that when
an association is formed by people with the sole purpose ofinflicting damage upon someone, which
would otherwise be lawful even ifcommitted by one person with an intention ofcausing harm.

In such type of conspiracy, the sole purpose of the combination or, the association is to injure
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someone.

The most remarkable precedent was laid down in the Moghul Steamship Company's Case that,

Iftwo people, suppose X & Y are doing some act in pursuance oftheir business for expanding their
business and increasing their gains but also end up injuring someone. In such cases, ifthere was no
intention to harm the injured person, then the act is not actionable in the eyes oflaw.

Another important legal case regarding this is the Quinn vs Leathern case.

This case laid down that, an association oftwo or more people to injure another person with legal
justification or excuse, by means ofinducing his business customers to break contracts with him or
not to deal with him is actionable.

c.Unlawful Means Conspiracy

This type oftort involves an agreement between two or more than two parties. Wherein, at least one
ofthem agrees regarding using unlawful means against the claimant.

Let's discuss an important case:

Rohtas Industries vs Rohtas Industries Staff Union

The facts, in this case, were that the workmen of the two industrial premises went on a strike. The
Strike mentioned above was illegal under Section 23 r/w Section 24 ofthe Industrial Disputes Act,
1947. Now, the question which came before the Supreme Court was that if, the workmen are liable
to pay the compensation for the losses incurred by the management during the strike period.

The Court stated that the object ofthe strike was not to inflict any injuries or damages to industrial
establishments. Although the act ofstrike would be considered as conspiracy, it was not actionable.

Conclusion: As India was under the rule ofthe British Empire, the law evolved in India traces back
its origin to the common law in England. Similar is the case with the Tort Law in India. However,
the field ofConspiracy under Tort needs more development in India, as it is at a very nascent stage.

Also, the major issue with the tort of conspiracy is that only a group of people can be made liable

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under this but not an individual. The point here is that suppose, ifthere are 5 conspirators in an act
and 3 ofthem are not proven to be guilty, then the other 2 would also not be convicted by the court
oflaw.Thus, the tort ofconspiracy needs many developments, reforms, and enactments.

14.Write a note on Intimidation (6 marks)

According to Salmond, "the wrong of intimidation includes those case in which harm is
inflicted by the use of unlawful threats whereby the lawful liberty ofothers to do as they please is
interfered with". The essence of the wrong is the use of unlawful threats. The defendant either
threatens the plaintiff or compels him to do an act to his detriment. The threats must be made seriously
and taken seriously. For example, ifa business man is compelled to discontinue his business by means
ofthreats ofpersonal violence made against him by the defendant with that intention an action will
lie at the instance ofthe business man.

Rookes v. Barnard, plaintiff was a draughtsman working for BOAC at London Airport. The
defendants were the officials ofa registered trade union. The members ofthe union had entered into
a contract with BOAC that they willnot resort to any strike in the event ofnay dispute. The plaintiff
resigned the membership of the union. On his refusal to rejoin, the members of the union passed a
resolution and informed the BOAC that if the plaintiff was not dismissed the members of AASD
union will withdraw their labour. The corporation acceded to the threat and dismissed the plaintiff
after giving him due notice. The plaintiff brought an action against the defendants for wrongfully
inducing BOAC to terminate his service. The court held that the threat to withdraw labour if
plaintiff's service was not terminated constituted intimidation and the plaintiff was entitled to
damages

14. Write a short not on 'lnnuendo')(Oct 22)(Dec 21)(6 marks)

In defamation law, the concept of innuendo refers to the hidden or secondary meaning of a
statement that is not immediately apparent. In some cases, a statement that appears to be innocent at
first glance may be defamatory because ofits latent or secondary meaning. For instance, a statement
ofpraise or commendation could be considered defamatory in the context in which it is said.

One classic example ofinnuendo in defamation law is when a statement that a woman has given birth

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to a child is considered defamatory when the woman is unmarried. This is because the statement
implies that the woman has engaged in sexual activity outside ofmarriage, which may be considered
morally or socially unacceptable in some contexts.

Another example of innuendo in defamation law can be found in the case ofTolley v J. S. Fry &
Sons, Ltd (1931) A.C. 333. In this case, the defendants issued an advertisement featuring a caricature
of a famous amateur golf champion playing golf with a packet of chocolate protruding from his
pocket. A comic caddy in the ad said that the chocolate was excellent as the plaintiff's drive. Although
the statement itself may seem harmless, the court found that the ad was defamatory because of its
latent meaning, which suggested that the plaintiff endorsed the chocolate.

It is important to note that intention to defame is not necessary for a statement to be considered
defamatory. Even if the person making the statement believed it to be innocent, if the words are
considered defamatory by those to whom the statement is published, then defamation may have
occurred.

This point was highlighted in the case ofCassidy v Daily Mirror Newspapers Ltd. (1929) 2 K.B.
331. In this case, the defendants published a photograph of Mr. Cassidy and Miss 'X' in their
newspaper with the words "Mr. M. Cassidy, the race house owner, and Miss 'X,' whose engagement
has been announced." Mr. Cassidy did not live with his lawful wife (Mrs. Cassidy) but occasionally
stayed with her at her flat. Mrs. Cassidy sued the defendant for libel, alleging that the innuendo of
the statement was that Mr. Cassidy was not her husband and was living with her in immoral
cohabitation. The court held that the innuendo was established, even though the statement may have
appeared innocent on its face.

Problems

a. A left his donkey tying its front legs. The donkey was run over by a car, negligently driven
by B and the donkey was killed. A brings an action againstB to recover damages for the death
of his donkey. Decide.

This illustration is very similar to the case Davis vs. Mann. In this case theplaintiff negligently left
his ass fettered by its forefeet in a highway. The defendantdrove his wagon at high speed and killed the horses.
Had he taken proper care the defendant could have avoided the accident but he didn't . it was held that
notwithstanding the plaintiff s negligence, he could recover damages because the defendant could still have
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avoided the consequences of that negligence. Similarly in the above illustration also the plaintiff can recover
damages from the defendant.

b. A was chairman at a parish meeting. B was sitting seven places away on the same table
proved unruly, where upon a resolution to eject him was passed. Bwho was annoyed by
this, said that he would rather pull A out of the chair. Then he be ejected and moved
towards A with clinched fists. But he was stopped by the church warden sitting next
to him. Whether B has committedany wrong? Decide.

This illustration is similar to the case Stephen vs. Myers, in a turbulent parish council meeting, the
meeting voted to have the defendant ejected. He refused, and advanced toward the chairman waving his
clenched fist and saying hewould rather throw him from the chair. He was stopped before getting within strik­
ing distance, but the chairman sued for assault. The court held him liable for assault.
In the above case B has committed the tort of assault. Assault according toDr. Winfiled, is an act of
the defendant which causes in the minds of the plaintiff reasonable apprehension of the infliction of a battery
on him by the defendant. In assault there should be a reasonable apprehension in the mind of the plaintiff that
defendant is about to use force or attempting to use force against him, whether anyharmed is caused or not. It
is an attempt or offer to apply force to another's person.

c. A circus lion escapes and injures some spectators. Discuss the liability of the manager
of the circus for the injury caused.
Answer: In the above problem the manager is liable for the injury caused by the Lion to the
spectators, the reasons is because under the absolute liability if any persons bring something and
keeps in is possession something likely to do mischief and if it escapes and does any mischief the
person is liable for the damages. Thus in the above problem the lion has escaped and has done
mischief means done injuries to the spectators, hence the manager is liable for the injuries and dam­
ages.

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UNIT - V

1. Discuss briefly the rights of consumers. (April 23) (Nov 21) or

2. Explain the concept of 'consumer' under the Consumer Protection Act.)(Oct 22) or

3. Consumer (Nov 21)(6 marks)

Introduction: Consumer protection is the practice of safeguarding buyers of goods and services
against unfair practices in the market. It refers to the steps adopted for the protection of consumers
from corrupt and unscrupulous malpractices by the sellers, manufacturers, service providers, etc. and
to provide remedies in case their rights as a consumer have been violated.

Meaning of the word '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 resaleof 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 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.

Objective of the Consumer Protection Act.

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:

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

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

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

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

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LAW OF TORTS NOTES BY PRAVEEN B S (ASS. P ROF. OF AL-AM E E N LAW COLLEG E )

• Seek redressal against unfair trade practices or unscrupulous exploitation ofconsumers.

• Protect the consumers by appointing authorities for timely and

sufficient administration and settlement ofconsumers' disputes.

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

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

• Provide consumer education, so that the consumers are able to be aware oftheir rights.

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

4.Explain the Jurisdiction of the 'District Commission')(Oct 22)

As per Section 2 ( 1) (d) ofCPA 1986 - "Consumer" means any person who-

a) Buys any goods for a consideration which has been paid or promised or partly paid and
partly promised, or under any system ofdeferred payment and includes any user of
such goods other than the person who buys such goods for consideration paid or
promised or partly paid or partly promised or under any system ofdeferred payment
when such use is made with the approval ofsuch person but does not include a person
who obtains such goods for resale or for any commercial purpose; or
b) Hires or avails ofany services for a consideration which has been paid or promised or
partly paid and partly promised, or under any system ofdeferred payment and includes
any beneficiary ofsuch services other than the person who hires or avails ofthe services
for consideration paid or promised, or partly paid and partly promised, or under any
system ofdeferred payment, when such services are availed ofwith the approval ofthe
first mentioned person but does not include a person wo avails ofsuch services for any
commercial purpose;

Based on this definition, the following are essential elements of a Consumer -

1. Buys goods or Hires Services - Physical products such as Car, TV, Utensils etc as wellas

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intangible services ranging from Hair Cutting Saloon to Banking etc. are both valid pur­
chases for being a consumer. The scope ofservices is quite wide and more and more
things are coming into its ambit slowly. For example, in the landmark case ofIndian
Medical Association v. VP Shantha and others 1995, SC held that patients treated by a
medical professional is also a consumer of medical services and is covered by CPA.
2. For consideration - To be a consumer, paying consideration is a must. However, consid­
eration may be an immediate payment or a promise offuture payment in full or in

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part. It can also be any arrangement ofdeferred payments. Further, unlike in Sale ofGoodsAct, con­
sideration need not only be in the form ofmoney but transaction ofservices, exchange or barter is
also valid. In Motor Sales & Service v. Renji Sebastian 1991, the complainant booked a motor cy­
cle to be delivered on a given date for a consideration. Histurn was ignored. The dealer was ordered
to give him the motorcycle for the price ofthat date and also 500/- as compensation.

3. For personal Use - The goods or service must be bought for personal use. Originally, a
person who bought a product or a service for commercial use was not considered a con­
sumer but after the amendment in 1993, use ofsuch goods for making a livelihood is ac­
cepted. Thus, a selfemployed person who buys a Photocopy machine for his own shop is
a consumer. However, goods must not be bought for resale.In Anant Raj Agencies v.
TEL CO 1996, a company bought a car for personal use ofa director ofthe company. It
was held that since the car was bought for personal use and not for commercial use or for
making a profit on a large scale, the company was a consumer.

4. Use by the purchaser or anybody else - It is not necessary that only the purchaser ofthe
goods or services be the user. Anybody who uses the goods or services with due permis­
sion ofthe purchaser, is also a consumer. Thus, in a landmark case ofSpring Meadows
Hospital v. Harjot Ahluwalia AIR 1998, SC held that the parents ofthe child who was
treated by the hospital were hirers ofthe service while the child was the beneficiary and
thus both were consumers.

DISTRICT FORUM

Composition (Section 10)

1. Each District Forum shall consist of-
a. A person who is, or who has been or is qualified to be, a District Judge, who shall be its
President
b. two other members, one of whom shall be a woman, who shall have the following
qualifications, namely -
I . be not less than thirty-five years ofage,

2. posses a bachelor's degree from a recognized university,

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3. be persons ofability, integrity and standing,

4. and have adequate knowledge and experience ofat least ten years in dealing with
problems relating to economics, law, commerce, accountancy, industry, public af­
fairs, or administration

Every member ofthe District Forum shall hold office for a term offive years or up to the age of
sixty-five years/ whichever is earlier:
Jurisdiction (Section 11)
1. Pecuniary Jurisdiction - Subject to other provisions ofthis Act, the District Forum shall
have jurisdiction to entertain complaints where the value ofthe goods or services and the
Compensation ifany, claimed does not exceed rupees twenty lakhs.
2. Territorial Jurisdiction - A complaint shall be instituted in a District Forum within the
local limits ofwhose jurisdiction, -
1. The opposite party or each ofthe opposite parties, where there are more than one,
at the time of the institution of the complaint, actually and voluntarily resides
or carries on business or has a branch office, or] personally works for gain or
2. Any ofthe opposite parties where there are more then one, at the time ofthe insti­
tution ofthe complaint, actually and voluntarily resides, or carries on businessor
has a branch office, or personally works for gain, provided that in such case either
the permission ofthe District Forum is given, or the opposite parties who donot re­
side, or carry on business or have a branch office, or personally works for gain, as
the case may be, acquiesce in such institution; or
3. The cause ofaction, wholly or in part arises.

For a complaint to lie in a district forum, at least a part ofthe transaction ofthe actual business
must have occurred in that district. In National Insurance Co v. Sonic Surgical 2003, a fire
accident took place in Ambala and a part ofthe claim was partly processed in Chandigarh. It washeld
that merely processing ofclaim in one place does not form a ground to file a case in that district.

Functioning of a District Forum Who

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can file a complaint (Section 12)The fol-

lowing can file a complaint -

1. The consumer to whom the goods or services have been sold or are agreed to be sold.

2. Any recognized consumer association even ifthe consumer is not a member ofthe associ­
ation. Recognized means any voluntary association registered under Companies Act l 956
or any other law for the time being in force.
3. One or more consumers, where there are numerous consumers all having same interest,
with the permission ofdistrict forum.
4. The state or central government.

The complaint must be accompanied with such amount offee and payable in such manner as maybe
prescribed.
The forum may accept or reject the complaint. The complainant must be given an opportunity tobe
heard before rejection. The acceptance or rejection will be decided in 2 1 days.

Procedure on admission of complaint (Section 13)

Upon acceptance ofthe complaint, the forum will send a copy to the opposite party within 2 1 days,
who has to respond with his version ofthe complaint within 30 days (extendable by 15 days). Upon
receipt ofthe response, the forum will give its decision. Ifno response is received, the forumwill give
and ex parte decision. An effort will be made by the forum to make a decision within 3 months of
date ofreceipt ofnotice by the opposite party where no goods testing needs to be doneor within 5
months otherwise.

Powers (Findings) of District Forum (Section 14)

If, after conducting the procedure in Section 13, the forum finds that there was a defect in the product
or a deficiency in service or that any ofthe allegations in the complaint are true, it can askthe opposite
party to do any ofthe following -

1. To remove the defect pointed out by an appropriate laboratory from the goods in questions.

2. To replace the goods with new goods ofsimilar description which shall be free from any
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LAW OF TORTS NOTES BY PRAVEEN B S (ASS. P ROF. OF AL-AM E E N LAW COLLEG E )

defect.
3. To return to the complainant the price or as the case may be, the charges paid by the
complainant.
4. To pay such amount as may be awarded by it as compensation to the consumer for any loss
or injury suffered by the consumer due to the negligence ofthe opposite party.
5. To discontinue the unfair trade practice or restrictive trade practice or not to repeat it.

6. Not to offer the hazardous product for sale.

7. To cease manufacture of hazardous goods and to desist from offering services that are
hazardous.
8. When injury has been suffered by may customer who are not easily identifiable, the
opposite party may be required to pay such sum as the forum deems fit.
9. To issue any corrective advertisement to neutralize the effect of any misleadingadver­
tisement.
10. To provide adequate costs to parties.

The District Forum also has the power to grant punitive damages in such circumstances as it deemsfit.
The forum must take into account all the evidence and the documents produced by the parties and
the order ofthe forum should be a speaking order, which means that it should detail the reasons
behind the order. In K S Sidhu v. Senior Executive Engineer 2001, the complaint wasdismissed
by the District Forum by a non speaking order. It did not discuss the evidence or thedocuments
submitted before it and thus it was held that the order was unjust and fit to be set aside.

5. Explain the composition and jurisdiction of the state consumer commission under the
Consumer Protection Act, 2019.Dec 21) (Dec 19)

STATE COMMISSION

Composition (Section 16)

1. Each State Commission shall consist of-

a. a person who is or has been a Judge ofa High Court, appointed by the State Govern-
ment, who shall be its President
Provided that no appointment under this clause shall be made except after consultation
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LAW OF TORTS NOTES BY PRAVEEN B S (ASS. P ROF. OF AL-AM E E N LAW COLLEG E )

with the ChiefJustice ofthe High Court;

b. two other members, who shall be persons of ability, integrity and standing and have
adequate knowledge or experience of, or have shown capacity in dealing with problems relating
to economics, law, commerce, accountancy, industry, public affairs or administration, one of
whom shall be a woman.

Every member ofthe State Commission shall hold office for a term offive years or up to the age
ofsixty-seven years, whichever is earlier and shall not be eligible for re-appointment.
Jurisdiction (Section 17)
1. Pecuniary Jurisdiction - Subject to other provisions ofthis Act, the State Commission shall
have jurisdiction to entertain complaints where the value of the goods or services andthe
Compensation, ifany, claimed exceeds rupees 20 lakhs but does not exceed rupees 1 crore.
2. Territorial Jurisdiction - It can entertain appeals against the orders ofany District Forumof
the state.

As per section 17 A , on the application ofthe complainant or ofits own motion, the State Com­
mission may, at any stage of the proceeding, transfer any complaint pending before the District
Forum to another District Forum within the State ifthe interest ofjustice so requires.
Procedure (Section 18)

The provisions ofsections 12, 13 and 14 and the rules made there under for the disposal ofcom­
plaints by the District Forum shall, with such modifications as may be necessary, be applicable to
the disposal ofdisputes by the State Commission.

6. National Consumer Commission. (April 23)(6 Marks)

NATIONAL COMMISSION

Composition (Section 20

1. The National Commission shall consist of-

a. a person who is or has been a Judge ofthe Supreme Court, to be appointed by the
CentralGovernment, who shall be its President
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LAW OF TORTS NOTES BY PRAVEEN B S (ASS.PROF. OF AL-A M E E N LAW COLLEG E )

Provided that no appointment under this clause shall be made except after consultation
with the ChiefJustice ofIndia
b. not less than four, and not more than such number ofmembers, as may be prescribed,
andone ofwhom shall be a woman, who shall have the following qualifications, namely:­
(i) be not less than thirty-five years ofage;

(ii) possess a bachelor's degree from a recognized university; and

(iii) be persons ofability, integrity and standing and have adequate knowledge and expe­
rience of at least ten years in dealing with problems relating to economics, law, commerce,ac­
countancy, industry, public affairs or administration:

Provided that not more than fifty per cent, ofthe members shall be from amongst the persons
having a judicial background.

Jurisdiction (Section 21)

Subject to the other provisions ofthis Act, the National Commission shall have jurisdiction -

(a) to entertain -

(i) complaints where the value of the goods or services and compensation, if any,
claimedexceeds rupees twenty lakhs; and
(ii) appeals against the orders ofany State Commission; and

(b) to call for the records and pass appropriate orders in any consumer dispute which is
pending before or has been decided by any State Commission where it appears to the National
Commission that such State Commission has exercised a jurisdiction not vested in it by law, or
has failed to exercise a jurisdiction so vested, or has acted in the exercise ofits jurisdiction ille­
gally or with material irregularity.

Power and Procedure (Section 22)

The National Commission shall, in the disposal of any complaints or any proceedings before it,
have
(a) the powers of a civil court as specified in sub-sections (4), (5) and (6) of section 13;

(b) the power to issue an order to the opposite party directing, him to do any one or more ofthe
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things referred to in clauses (a) to (i) ofsub-section ( 1) ofsection 14, and follow such procedure as
may be prescribed by the Central Government.

Section 22A Power to set aside ex parte orders - Where an order is passed by the National Com­
mission ex parte against the Opposite party or a complainant, as the case may be, the aggrieved
party may apply to the Commission to set aside the said order in the interest ofjustice.

Section 22B Transfer of cases - On the application ofthe complainant or ofits own motion, the
National Commission may, at any stage of the proceeding, in the interest of justice, transfer any
complaint pending before the District Forum ofone State to a District Forum of another State or
before one State Commission to another State Commission

Provisions for Appeal (Section 15)

From District Forum to State Commission (Section 15)

Any person aggrieved by an order by the District Forum may prefer an appeal against such order
to the State Commission within a period of30 days from the date ofthe order. The state commis­
sion may entertain an appeal after the expiry ofthe said period of30 days ifit is satisfiedthat there
was sufficient cause for not filing it with in that period. With the appeal, the appellant must deposit
50% ofthe amount that he is required to pay or 25000/- (whichever is less).

From State Commission to National Commission (Section 19)

Any person aggrieved by an order by the State Commission may prefer an appeal against such
order to the National Commission within a period of 30 days from the date ofthe order. The com­
mission may entertain an appeal after the expiry of the said period of 30 days if it is satisfiedthat
there was sufficient cause for not filing it with in that period. With the appeal, the appellant must
deposit 50% ofthe amount that he is required to pay or 35000/- (whichever is less).

As per section 19-A, appeal to the State Commission or the National Commission shall be heard
as expeditiously as possible and an effort shall be made to dispose off the appeal within a period of
90 days from the date ofadmission. Ifthe appeal is disposed ofafter this time, the commissionshall
state the reasons for the delay.

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LAW OF TORTS NOTES BY PRAVEEN B S (ASS. P ROF. OF AL-AM E E N LAW COLLEG E )

From National Commission to Supreme Court(Section 23)

Any person aggrieved by an order made by the National Commission in exercise of its power
conferred by sub-clause (i) ofclause (a) ofsection 2 1, may prefer an appeal against such order to
the Supreme Court within a period of thirty days from the date of the order. Provided that the
Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is
satisfied that there was sufficient cause for not filing it within that period. Provided Further that no
appeal by a person who is required to pay any amount in terms ofan order ofthe National Com­
mission shall be entertained by the Supreme Court unless that person had deposited in the pre­
scribed manner fifty per cent. ofthat amount or rupees fifty thousand, whichever is less.

Case laws:

In Dist. Engineer Telecom., Sriganganagar v. Dr. Tej Narain Sharma, the dues of the tele­
phone bill had been deposited by the complaint after the due date, 22 days after this deposit
the telephone was disconnected without even remaining the complaint on phone. The phone
remained disconnected for 15 days. The disconnection was held to be due to the negligence
and same amounted to deficiency in services. The compensation was awarded for mental
distress, agony and loss ofreputation.

In Union ofIndia v. Nathmal Hansaria, the daughter ofthe complainant, fell down and died
while passing through inter-connecting passage in the Tin sukhia Mail going from Delhi
to Guwahati. The passage was not protected by any grills, etc. The State Commission awarded
compensation ofRs. 2 lacs for death ofgirl and Rs. 25,000/- for mental agony, etc. to the
parents of the deceased on account ofdeficiency in service by the opposite party, Rail­
ways. The decision was upheld by the National Commission.

7.Explain the "liability without fault" and application for compensation under Motor Vehicles
Act, 1988. (Nov 21) or

8.State the salient features of Motor Vehicles Act, 1988. (April 23)(Dec 21) (Dec 19)

Introduction
The Motor V ehicles Act, 1988 is a comprehensive enactment in respect to various
matters relating to traffic safety on the roads and minimization of road accidents. The Act

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LAW OF TORTS NOTES BY PRAVEEN B S (ASS.PROF. O F AL-AM E E N LAW COLLEG E )

came into force from 1 july 1989. It replaced Motor Vehicles Act, 1939, which earlier
replaced the first such enactment Motor V ehicles Act, 1914.

The Act provides in detail the legislative provisions regarding licensing ofdrivers/ conduc­
tors, registration of motor vehicles, control of motor vehicles through permits, special
provisions relating to State transport undertakings, traffic regulations, insurance, liability,
offences and penalties etc.

There are various rights created for claiming compensation in case of any death or bodily
injury caused in an accident arising out ofthe use ofmotor vehicles.

By the Motor V ehicles (Amendment) Act, 1994, inter alia, amendments were made for make
special provisions under sections 66 & 67 so as to provide that vehicles operating on eco­
friendly fuels shall be exempted from the requirements of permits and also the owners of
such vehicles shall have the discretion to fix fares and freights for carriage ofpassengers
and goods. The intention in bringing the said amendments was to encourage the operation
of vehicles with such eco- friendly fuels.

Over the years, judiciary has not only been called upon time to time to interpret these statutory
provisions and apply them to different facts and situations, but also to lay

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down various legal principles for assessing compensation. The Motor Vehicles Act,
1 988, does not provide any guidelines for the identification of the items of loss to be
compensated, nor does it lay down any criteria for the compilation of the quantum of
compensation for each item of loss.

This is an Act to make a comprehensive review of all aspects of Motor Accident Com­
pensation law. An Act to consolidate and amend the law relating to motor vehicles.

Liability rule deal with the unintended accidents and related issues. A suit under liability
rules is generally a private suit (over injuries) as opposed to a criminal prosecution. If
the legal requirements are fulfilled, the injurer is required to compensate the victim.

COMPENSATION UNDER MOTOR VEHICLES ACT, 1988

Rules for payment of compensation can be discussed under two sub-headings;
a. Fault based liability and

b. no fault liability
Fault based liability and no fault liability
The cases of motor accidents constitute a major bulk of tort cases in India. To
prevail in a suit generally, a victim must also demonstrate that the injurer has breached
a duty he owe to the victim. When an injurer breaches a legal duty he is said to
be "at fault' or negligent. Breach of a duty is caused by doing something which a
reasonable man should do under the circumstances.

The rule of negligence with the defence of contributory negligence holds injurer liable
if and only if he was negligent and the victim was not. In India, this rule requires pro­
portional sharing of liability when both parties were negligent. That is, the compensa­
tion the victim receives gets reduced in proportion to his or her negligence.

The rule of strict liability always holds the injurer liable irrespective of the care taken
by the two parties.

Before 1 988 for motor vehicle accidents liability of injurer was predominantly fault
based liability. However, the 1 988 amendment to the Act brought in an element of
strictliability. Thefollowingprovision ( section. 1 40)wasintroducedin the amendment:

"where death or permanent disablement of any person has resulted from an accident
arising out of the use of the motor vehicle or motor vehicles, the owner of the vehicle

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LAW OF TORTS NOTES BY PRAVEEN B S (ASS.PROF. OF AL-AMEEN LAW COLLEG E )

shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be
liable to pay compensation in respect of such death or disablement in accordance
with the provisions of this section."

In simple terms, this amendment implied that the injurer or the insurance company of
theinjurer hastopaya certainamountascompensation to the victim irrespective of whose
fault it is.

The Act was further amended in 1 994. As a result of this amendment, liability of injurer
became even stricter. According to section 1 63-A:

"Notwithstanding anything containing in this Act or any other law for the time being
in force, the owner of the motor vehicle or the authored insurer shall be liable to pay
in the case of death or permanent disablement due to accident arising out of the use
of the motor vehicle, compensation as indicated in the second schedule, to legal heirs
or the victim s the case may be."

The claimant shall not be required to plead or establish that the death or permanent
disablement was due to any wrong full act or neglect or default of the owner of the vehicle
or the vehicles concerned or any other person.

While filing the damage awards (i.e the liability payments to be made by the injurer
to the victim), courts should take into account the entire loss suffered by victim. A court
may entitle the victim to over or under compensation. Such court errors can cause
various effects depending upon the liability rule in force.

Motor Vehicles Act, 1 988, however, recognizes limited 'no fault liability' but only in
the cases of death and permanent disablement. While deciding on compensation,
courts have applied rule of negligence with defence of contributory negligence. For
instance, if the liability is limited to Rs. 50.000 in the case of death and Rs.25,000 in the
case of permanent disablement. Such compensation can be claimed without
establishing any negligence on the part of owner or the driver of the vehicle. The com­
pensation claimed exceeding the amount can prevail only if negligence is proved.

Liability without Fault in Certain Cases

Liability without fault in certain cases is dealt under Chapter X of the Act.
Section 1 40 provides Liability to pay compensation in certain cases on the principle

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LAW OF TORTS NOTES BY PRAVEEN B S (ASS.PROF. OF AL-AMEEN LAW COLLEG E )

of no fault. - It runs as
1) Where death or permanent disablement of any person has resulted from an ac­
cident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicles
shall, or, as the case may be, the owners ofthe vehicles shall,jointly and severally, be liable
to pay compensation in respect of such death or disablement in accordance with the pro­
visions of this section.
2) The amount of compensation which shall be payable under subsection ( 1 ) in
respect of the death of any person shall be a fixed sum of 85 [ fifty thousand rupees] and
the amount of compensation payable under that sub-section in respect of the permanent
disablement of any person shall be a fixed sum of 86[twenty - five thousand rupees] .
3) In any claim for compensation under sub-section ( 1 ), the claimant shall notbe re­
quired to plead and establish that the death or permanent disablement in respect of which
the claim has been made was due to any wrongful act, neglect or default of the owner or
owners of the vehicle or vehicles concerned or ofany other person.
4) A claim for compensation under sub-section ( 1 ) shall not be defeated by reason
of any wrongful act, neglect or default of the person in respect of whose death or perma­
nent disablement the claim has been made nor shall the quantum of compensation recov­
erable in respect of such death or permanent disablement be reduced on the basis of the
share of such person in the responsibility for such death or permanent disablement.
5) Notwithstanding anything contained in sub-section (2) regarding death or bod­
ily injury to any person, for which the owner of the vehicle is liable to give com­
pensation for relief, he is also liable to pay compensation under any other law for the time
being in force
Provided that the amount of such compensation to be given under any other law shall
be reduced from the amount of compensation payable under this section or under sec­
tion 1 63 - A."

In Teethi v. Motor Accidents Claims Tribunal, it was observed that under section
1 40 of the Act, the liability of the owner or owners of the vehicle or vehicles is joint
and several. In accidents involving two Motor vehicles, liability to pay compensa­
tion is upon both the owners. If only one owner is identified, he is liable to pay com­
pensation.

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 LAW OF TORTS NOTES BY PRAVEEN B S (ASS.PROF. O F AL-AMEEN LAW COLLEG E )

These provisions apply in cases where the claimant suffers death or permanent disa­
blement, as defined in the Act. The object behind no-fault principle is to give minimum
relief expeditiously to the victim of the road accident or his legal representative. To
that extent, these provisions constitute a measure of social justice.

The right to claim compensation under section 1 40 in respect of death or permanent

disablement of any person shall be in addition to any other right to claim compensation
in respect thereof under any other provision of this Act or of any other law for the time
being in force. Thus the claims for death or permanent disablement can also beper­
suadeunderotherprovisionsoftheActon thebasisof negligence.

It was held in Ashok v. Ashok Singh, to claim interim award under no fault liability
certificate from a medical practitioner regarding permanent disablement is suffi­
cient.

Similarly in New India Insurance Co. Ltd. v. Mithakhan, it was held that where com­
pensation is claimed in respect of death or permanent disablement under section 1 40
of the Act, the claim for compensation is required to be disposed of in the first place in
view of section 1 40(2) of the Act.

Section 141 : Provisions as to other right to claim compensation for death or

permanent disablement - The section runs as:

1) The right to claim compensation under section 1 40 in respect of death or permanent disa-
blement of any person shall be in addition to 88[any other right, except the right to claim under
the scheme referred to in section 1 63 - A (such other right hereafter] in this section referred
to as the right on the principle of fault) to claim compensation in respect thereof under any
other provision of this Act or of any other law for the time being in force.
2) A claim for compensation under section 1 40 in respect of death or permanent
disablement of any person shall be disposed of as expeditiously as possible and where com­
pensation is claimed in respect of such death or permanent disablement under section 1 40 and
also in pursuance of any right on the principle of fault, the claim for compensation under section
1 40 shall be disposed of as aforesaid in the first place.
3) Notwithstanding anything contained in sub-section ( 1 ), where in respect of the
death or permanent disablement of any person, the person liable to pay compensation

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LAW OF TORTS NOTES BY PRAVEEN B S (ASS.PROF. OF AL-AMEEN LAW COLLEG E )

under section 1 40 is also liable to pay compensation in accordance with the right on the
principle of fault, the person so liable shall pay the first- mentioned compensation and -

if the amount of the first-mentioned compensation is less than the amount of the second­
mentioned compensation, he shall be liable to pay (in addition to the first-mentioned
compensation) only so much of the second-mentioned compensation as is equal to the
amount by which it exceeds the first-mentioned compensation;

a. if the amount of the first-mentioned compensation is equal to or more than the

amount of the second-mentioned compensation, he shall not be liable to pay the second­
mentioned compensation."

For instance if the first mentioned compensation is Rs. 25,000, and second men­
tioned is Rs.30,000, then the person liable is to pay an extra amount of Rs.5000 in
total.

Section 1 4 1 makes provision to claim compensation for death or permanent disable­

ment besides the claim for compensation for no fault liability.

For the purposes of this Chapter, under section 1 42 permanent disablement of a person
shall be deemed to have resulted from an accident of the nature referred to in sub-section
( 1 ) of section 1 40 if such person has suffered by reason of the accident, any injury or
injuries involving :-

a. permanent privation of the sight of either eye or the hearing of either ear,
or privation of any member or joint; or
b. destruction or permanent impairing of the powers of any mem­
bers orjoint; or permanent disfiguration of the head or face.
In S. Kaushnuma Begam v. New India Assurance Co. Ltd., the appellants
widow and children of Haji Mohammad Hanif, the victim of the accident,
filed a claim petition before the claims Tribunal in 1 986 claiming a sum of
Rs. 2,36,000 by way of compensation against the owner of the jeep who
caused the accident in which the victim was killed. The accident which gave
rise to the claim occurred at about 7 .00 p.m. on 20-3 - 1 986 the vehicle capsized
due to the bursting of the front tyre of the jeep hitting one Haji Mohammad
Hanif who was walking on the road and consequently the was crushed and

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LAW OF TORTS NOTES BY PRAVEEN B S (ASS.PROF. OF AL-AMEEN LAW COLLEG E )

subsequently succumbed to the injuries sustained in the accident. The Tribu­

nal dismissed the claim for compensation. Thereupon the appellants moved
the Supreme Court in appeal. The Supreme Court held that the driver though
not negligent in causing death of the pedestrain the claim for compensation
before the Tribunal was maintainable and the owner of the vehicle was vicar­
iously liable for damages on the basis of strict liability rule laid down
in Rylands v. Fletcher's case. The jurisdiction of the Tribunal is not re­
stricted to decide claims arising out of negligence on the use of motor vehi­
cles. Negligence is only one of the species of the causes of action for making
a claim for compensation in respect of accidents arising out of the use of motor
vehicles. There are other premises for such cause of action. Even apart from
Section 1 40 which envisages no fault liability claim for compensation can be
maintainable by applying The Rule in Rylands v Fletcher unless any one of
the exceptions to rule can be applied. The rule in Ryland v. Fletcher, has
been approved in a larger number of decisions by Courts in England and India
and other countries. Though in M.C. Mehta v. Union of India, P. N. Bhagwati,
C.J., speaking for the Court expressed the view that there was no necessity to
bank on the Rule in Ryland v. Fletcher but the Court did not disapprove the
Rule and therefore the Rule is still applicable.
LIABILITY OF INSURER

Motor Vehicles Act makes the insurance of Motor Vehicles compulsory. The owner
of every motor vehicle is bound to insure his vehicle against third party risk. The in­
surance Companycoverstherisk oflosstothethirdpartybytheuseof the motor vehicle.

Thus if there is insurance against the third party risk, the person suffering due to the
accident (third party) caused by the use of motor vehicle may recover compensation
either from the owner or the driver of the vehicle, or from the insurance company, or
from them jointly.

The policy of Insurance issued by an authorized insurer is;

1) To insure the person or class of person's specified in the policy.
2) Insurer is liable to the extent specified in section 14 7 (2)
3) Liable for death, or bodily injury to any person, or damage to property

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LAW OF TORTS NOTES BY PRAVEEN B S (ASS.PROF. O F AL-AMEEN LAW COLLEG E )

of third party, or bodilyinjurytoanypassengerof a Public Service Vehi­

cle.
Liability for fault
The Motor Vehicles Act of 1 988 establishes specific care obligations for drivers of motor
vehicles. These include the following: Obeying traffic laws; Driving regulations; Driving
with the left hand; Observing safety precautions for drivers and pillion riders; Producing a
licence or certificate of registration; Stopping in Certain Circumstances; Duty of Driver in
Case of Accident and Injuring Person; Duty to Allow Inspection of Vehicle Involved in
Accident.
The case might be classified as one involving negligence or fault liability if any of the
responsibilities are breached, and the claimant sustains losses because of the breach. The
nature of the injury is not a factor in the preference of a claim under Section 1 66[23] of the
Act, and the amount of damages is decided based on normal tort law and what seems to be
'Just." The same remedy may not be sought under Sections 1 66 and 1 63A at the same time.

Sarala Verma & Ors. Vs. DTC & Anr[24] decided that the Second Schedule to the Act (i.e.,
the structured formula under Section 1 63A) has no effect in determining the amount of
compensation in a claim for compensation for death submitted under Section 1 66 of the
Act. In this instance, the court developed a unique multiplier formula.

To file a claim under Section 1 66, the claimant must demonstrate that the owner or driver
of the vehicle was negligent. The res ipsa loquitor doctrine, which states that an object
speaks for itself, may occasionally be used by the Tribunal to discharge the claimant's
burden of proof on the respondent driver 's carelessness. The defence of the claimant's
contributory negligence may be brought up by the respondent.

IV. Amount of the Insurance Company's Liability to the Insured and Third Parties

According to Section 1 50[25], any liability incurred by the insured and his rights against
the insurer will be transferred to and vest in the third party to whom the liability was so
incurred if the insured becomes insolvent.
According to Section 1 52[26] , any settlement reached by the insurer regarding a potential
third-party claim will not be valid until the potential third-party is a party to the claim.

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LAW OF TORTS NOTES BY PRAVEEN B S (ASS.PROF. O F AL-AMEEN LAW COLLEG E )

According to Section 1 54[27], the insured's insolvency will not have an impact on the
insured's liability, the claims of third parties, or the insured's rights against the insurer.

According to Section 1 55 [28], third parties' rights against the insured or his excise are not
precluded if the insured passes away following the occurrence of an accident in which his
motor vehicle was involved.

According to Section 1 57[29], the policy of insurance for the vehicle is also deemed to
have been transferred to the new owner as of the date on which the certificate of registration
for the vehicle is transferred. The transferee must apply to the insurer in the specified form
within 1 4 days of the transfer date in order for the insurer to make the necessary changes.

The 1 994 revision to the Act removed the provision for a 1 2-month total limitation period.
The sum awarded may be collected by the District Collector from the insurer as unpaid land
revenue under Section 1 74[30] . Insurance Company's Responsibility for Gratuitous
Passengers

The owner/driver of the vehicle is responsible for making compensation payments; a

gratuitous passenger is not entitled to reimbursement from the insurance company. The
insurance provider should be ordered to reimburse the owner for the cost.

After considering its prior judgements in Oriental Insurance Co. Ltd. vs. Sudhakaran
K. V. [3 1 ] the Supreme Court summarised the law pertaining to the pillion passenger on a
two-wheeler as follows: "25 . The law that results from the aforementioned decisions is that
(i) the insurance company's liability in a situation of this nature is not extended to a motor
vehicle pillion rider unless the necessary premium payment is made to cover his or her risk,
and (ii) the legal obligation arising under Section 1 47 of the Act cannot be extended to an
injury or death of the vehicle owner or the pillion rider; (iii) When an accident occurs
because of hasty and careless scooter riding and not on the part of the driver of another
vehicle, the pillion passenger on a two-wheeler was not to be treated as a third party.

V. Modifications to the 20 1 7 Motor Vehicles (Amendment) Bill

The Bill included a proposal for 68 revisions to 233 provisions of the 1 988 Motor Vehicles
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LAW OF TORTS NOTES BY PRAVEEN B S (ASS.PROF. O F AL-AMEEN LAW COLLEG E )

Act as well as the addition of 28 new sections. The main Act's Chapter X (Liability without
Fault in Certain Cases) has been left out.

The following changes have been made to Chapter XI:

Insurance and Reimbursement

The compensation and insurance in cases involving motor vehicle accidents have been
significantly amended by the Bill:

Section 1 6 1 Hit and Run: According to the Motor Vehicles Act of 1 988, a Solatium Fund
provides compensation for hit-and-run victims. According to instructions from the Central
Government, the compensation in the Motor Vehicles (Amendment) Bill 20 1 6 has been
increased to Rs 50,000 for severe injury and Rs 2 lakh or more.

All motor vehicles must carry mandatory third-party insurance, and under the Act, the
third-party insurer's responsibility for motor vehicle accidents is uncapped. According to
Section 1 64, no-fault compensation increased to a total of Rs. 5 lakhs in cases of death or
Rs. 2.5 lakh in cases of severe injury to the legal heirs or the victim. The second schedule
of the fundamental Act has been left out.

Provision of Interim Relief to Claimants Pursuing Compensation Under Third Party

Insurance: The Bill permits the Central Government to develop a plan for giving interim
relief to claimants pursing Compensation for Motor Vehicle Accidents Under Third Party
Insurance. The compensation provided to the victim by the insurance company must be
resolved before the Claims Tribunal within thirty days of the accident, according to Section
1 49 of the Bill. The settlement will be documented by the Claims Tribunal, and the matter
will be regarded as resolved amicably. Compensation on a no-fault basis would be paid
under Section 1 64 of the Bill, and this compensation is a stopgap measure. In accordance
with Section 1 66 of the Motor Vehicles Tribunal Act, the victim has the choice to accept
the compensation and settle or accept the money and pursue his claim.

Motor Vehicle Accident Fund: The Bill emphasises the creation of a Motor Vehicle
Accident Fund by the Central Government under Section 1 64B. All Indian drivers will
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LAW OF TORTS NOTES BY PRAVEEN B S (ASS.PROF. OF AL-AMEEN LAW COLLEG E )

receive required insurance coverage thanks to the Fund. A grant or loan from the Central
Government, the remaining Solatium Funds, a payment of nature that has been reported to
and approved by the Central Government, or any other source that the Central Government
specifies will credit the Fund.

The Bill makes plain the purpose of the fund, which will cover:

i. The "Golden Hour" plans for the treatment of those hurt in car accidents,

ii. Payment of damages to the family members of a victim of a hit-and-run in accordance

with the Central Government's formulated plans.

iii. Compensation to individuals in accordance with Central Government guidelines, and

iv. Payment of damages to a victim of a hit-and-run accident in accordance with plans

created by the national government.

A proviso has been added to Section 1 66 that reads, "(3) No application for compensation
shall be entertained unless it is made within six months of the occurrence of the accident."

Conclusion:
India's Motor Vehicles Act of 1 988 is essential in addressing liability without fault in motor
vehicle accident situations. Victims and their families gain from the provision of ways for
claimants to pursue compensation without having to prove responsibility under Sections
1 40 and 1 63A. The law requires third-party risk insurance, ensuring that victims are
compensated even if the owner or operator of the vehicle is bankrupt. Significant
modifications were made by the 20 1 7 Motor Vehicles (Amendment) Bill, which raised
compensation payments, added clauses for temporary relief, and created a fund for motor
vehicle accidents. These changes are intended to increase road safety in India and offer
accident victims more thorough assistance.

9.Defective goods. (April 23)(0ct 22) (6 Marks) or

10. Write a note on deficiency in service.(Dec 21) (Dec 19)(6 Marks) or

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11.Complaint (Nov 21)

Introduction
Under the Consumer Protection Act, 20 1 9, a complaint can be filed when a consumer
detects deficient in a service. However, the threshold of deficiency must fall under the ambit
of the definition of deficiency given under the Consumer Protection At, 20 1 9. The
consumer Protection Act, 20 1 9 came into effect on July 20, 2020. The Consumer Protection
Act 20 1 9 not only recognizes physical relationship of buyer-seller but also has
acknowledged services pertaining to e-commerce platforms. The aim of both new and old
Consumer Protection Act is to protect and safeguard the interest of consumers.
Definition of Deficiency of Service
Section 2 ( 1 1 ) of Consumer Protection Act, 20 1 9 defines Deficiency of Service as "any
fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or under any law for the time being in
force or has been undertaken to be performed by a person in pursuance of a contract or
otherwise in relation to any service and includes (a) any act of negligence or omission or
commission by such person to the consumer and (b) deliberate withholding of relevant
information by such person to the consumer."
The term 'defect' is defined under Section 2 ( 1 0) of Consumer Protection Act, 20 1 9 as "any
fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which
is required to be maintained by or under and law for the time being in force or under any
contract, express or implied or as is claimed by the trader in any manner whatsoever in
relation to any goods or products and the expression 'defective' shall be construed
accordingly."
In any buyer-seller relationship, deficiency of service prevails. Such as legal aid, banks,
railways, construction, transportation, education, electricity, entertainment, restaurant,
hospitality, etc. The consequences of deficiency of service can range from inconvenience
or harassment to mental or physical injury to death, thereby leading to legal consequences.

This case is a result of medical negligence from medical profession. This landmark decision
recognized patient's rights through giving them the consumer status where complaints
could be lodged in a case of deficiency in the field of medical services under the Consumer
Protection Act, 1 986. The liability of doctor and hospital management arises when a patient
is admitted. The standard duty of care must be maintained by the hospital. When a patient

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is admitted, he/she is also considered as a consumer.

The Supreme Court emphasized on the interest and safeguards of patients which is given
the upmost importance.

In the case of Om Prakash v Reliance Genral Insurance, where the insurance company
declines the insurance of the complainant on the basis of delaying in intimating the
insurance company. However, in the case of Gurshinder Singh v Shriam General
Insurance Co. Ltd and Ors, it was ruled that with a reasonable and satisfactory
explanation, insurance claims were not to be declined due to technical grounds. It was
further opined by the Court that if the insurance claim is declined by the Insurer because of
untimely intimation of occurrence of theft/robbery, it would be considered as a technical
ground of rejection and the same would be unjust and not fair, if the respective claim in
question has already been verified. Hence, it was held by the Court that, mere delay in
intimating the insurance company about the theft must not act as a valid ground to decline
or repudiate the insurance claim, which has already been proved to be genuine.
Consumer Complaint Mechanism
The consumers have the liberty to go the Consumer Courts in case of deficiency in services
as laid downed under the Act. The new Consumer Protection Act, 20 1 9 has opened the
option of filing consumer complaint electronically. The procedure to register consumer
complaint is made simple by allowing the State and District Consumer Forums for
reviewing the applications and advising appropriate method such as mediation.
The Consumer Court in India is subdivided into three levels of courts, the National Level,
the State Level and the District Level, depending on the gravity of the matter the consumer
may approach as per the valuation of matter for redressal and adjudication of disputes. The
next step after recognizing the matter of dispute is to understand the pecuniary jurisdiction
of the concerned case as follows:
Jurisdiction for Filing Complaint
Forum
Value of Claim
District Consumer Disputes Redressal Forum
Rs. 1 Crore or less
State Consumer Disputes Redressal Commission
Between 1 Crore to Rs. 1 0 Crore
National Consumer Disputes Redressal Commission
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More than Rs. 1 0 Crore

All these forum has the same power which is given to the civil court such as cross
examination in the laboratory, survey, testing all the powers have been given and all the
forum has given appeal provision.
Remedies
Step 1 : Before initiating a legal action against the service provider, the aggrieved consumer
may consider to go to the grievance redressal mechanism of the service provider. Most
companies have internal grievance redressal mechanism where the consumer may file their
complaints.
Step 2: The consumer can send a legal notice to the service provider before taking the
matter to the consumer court specifying the details of the complaints, relief to be taken and
time stipulated to resolve the issue and conditions.
Step 3 : If the service provides fails to resolve the issue and disagrees to compensate the
consumer for the loss occurred to them then the consumer has full authority to lodge a legal
complaint against the service provider in the consumer forum. However, if the consumer
wants to directly approach the consumer forum, he/she can because there is no obligation
to send a legal notice beforehand.
A complaint needs to be included with essential details of both consumer as well as the
service provider such as name, address, facts, remedy, affidavit and other supporting
documents.
Time period to file Consumer Complaint:
Section 35 of Consumer Protection Act, 20 1 9 states that a complaint must be lodged to the
respective District Forum within two years of the time of the cause of deficiency in service
or any defect in goods. If the consumer has proper and valid reasons and the District Forum
agrees, then the time spam of filing the complaint can cross more than two years period of
time.
Further, Section 36 of the Act talks about the admissibility of complaint by forum that a
consumer must file a complaint within the time period of 2 1 days from the date of filing.
Mediation: Section 37 of the Act talks about talks about the mediation as an option of
settlement with consent of parties. Within the period of five days, both the parties are to
provide with a written consent. However, if both parties fail to see eye to eye, then the case
returns back to the District Consumer Forum. It is essential to note that Section 8 1 ( 1 ) states
that no appeal can be filed and entertained by respective forum against the order passed by
Mediation.
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Review Application- Section 40 of Consumer Protection Act, 20 1 9 states that if the

consumer is not satisfied with the order given by the District Consumer Forum, then a
review application can be filed by the consumer within the time period of 30 days from the
pronouncement of the order. Further, Section 4 1 of Consumer Protection Act, 20 1 9 states
that if the consumer is still not stratified with the order given by the review application then
they can take up to State Commission within 45 days from the date of pronouncement of
order.

National Commission- According to Section 50 of Consumer Protection Act, 20 1 9, the

complainant can file an application for review in the Forum within 30 days if the
complainant does not find the order passed by the State Commission to be satisfactory.
Further, Section 5 1 of Consumer Protection Act, 20 1 9 states that if the order passed by the
State Forum is not satisfactory then the complainant has rights to appeal to National Forum
within the time period of 30 days from the date of the order passed.
It is important to note that a consumer cannot directly file a complaint through Supreme
Court. It has to go from District Commission, State Commission then the National
Commission. If the consumer is not satisfied with the decision rendered by the National
Commission then it will go before the Supreme Court.
Consumer under Section 2 (7) means any person who buys any goods and hires any services
which includes both online as well as oftline transactions via electronic means,
teleshopping, direct selling or multi-level marketing.
Consumer Rights under Section 2 (9) includes-
1 . The right of being protected against marketing of goods, products or services which are
danger to life and property
2. The right to be informed about the quality, quantity, potency, purity, standard and price
of goods, products or services
3 . The right to b e assured, whenever possible access, to a variety o f goods, products or
services at competitive prices
4. The right to be heard and to be assured that consumer's interests will receive due
consideration at appropriate fora
5. The right to seek redressal against unfair trade practice or restrictive trade practices or
unscrupulous exploitation of consumers
6. The right to consumer awareness
Unfair Trade Practices
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Indulging in illegal or illicit means to promote a product or service by misleading the public
into making the product appear of a good quality when it is of a low quality is unfair trade
practices. For instance, including a fake ingredient, fake advertisement, not complying with
the health standard of the consumers.

Conclusion
Deficiency in services plays a vital role to a consumer as well as the service provider. The
Consumer Protection Act, 20 1 9 has successfully managed to incorporate as aspect of
deficiency that may be found in a product or service, hence giving the consumer the power
to take any unfair practice to the court of law.

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