Meaning of Tort:

The term tort is the French equivalent of the English word ‘wrong’ and of the Roman law term
‘delict’. The word tort is derived from the Latin word tortum which means twisted or crooked or
wrong and is in contrast to the word rectum which means straight. Everyone is expected to behave
in a straightforward manner and when one deviates from this straight path into crooked ways he
has committed a tort. Hence tort is a conduct which is twisted or crooked and not straight. As a
technical term of English law, tort has acquired a special meaning as a species of civil injury or
wrong. It was introduced into the English law by the Norman jurists.

Tort now means a breach of some duty independent of contract giving rise to a civil cause of
action and for which compensation is recoverable. In spite of various attempts an entirely
satisfactory definition of tort still awaits its master. In general terms, a tort may be defined as a
civil wrong independent of contract for which the appropriate remedy is an action for unliquidated
damages. Some other definitions for tort are given below:

1
Winfield and Jolowicz- Tortuous liability arises from the breach of a duty primarily fixed by law;
this duty is towards persons generally and its breach is redressible by an action for unliquidated
damages.

Salmond and Hueston- A tort is a civil wrong for which the remedy is a common action for
unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust
or other mere equitable obligation.

Sir Frederick Pollock- Every tort is an act or omission (not being merely the breach of a duty
arising out of a personal relation, or undertaken by contract) which is related in one of the
following ways to harm (including reference with an absolute right, whether there be measurable
actual damage or not), suffered by a determinate person:-
a) It may be an act which, without lawful justification or excuse, is intended by the agent to cause
harm, and does cause the harm complained of.
b) It may be an act in itself contrary to law, or an omission of specific legal duty, which causes
harm not intended by the person so acting or omitting.
c) It may be an act violation the absolute right (especially rights of possession or property), and
treated as wrongful without regard to the actor’s intention or knowledge. This, as we have seen is
an artificial extension of the general conceptions which are common to English and Roman law.
d) It may be an act or omission causing harm which the person so acting or omitting to act did not
intend to cause, but might and should with due diligence have foreseen and prevented.
e) It may, in special cases, consist merely in not avoiding or preventing harm which the party was
bound absolutely or within limits, to avoid or prevent.

The law of torts is fashioned as an instrument for making people adhere to the standards of
reasonable behaviour and respect the rights and interests of one another. This it does by protecting
interests and by providing for situations when a person whose protected interest is violated can
recover compensation for the loss suffered by him from the person who has violated the same. By
interest here is meant a claim, want or desire of a human being or group of human beings seeks to
satisfy, and of which, therefore the ordering of human relations in civilized society must take
account. It is however, obvious that every want or desire of a person cannot be protected nor can a
person claim that whenever he suffers loss he should be compensated by the person who is the author
of the loss. The law, therefore, determines what interests need protection and it also holds the balance

2
To constitute a tort,
1. There must be a wrongful act committed by a person;
2. The wrongful act must be of such a nature as to give rise to a legal remedy and
3. Such legal remedy must be in the form of an action for unliquidated damages.

I. Wrongful Act
An act which prima facie looks innocent may becomes tortious, if it invades the legal right of
another person. In Rogers v. Ranjendro Dutt , the court held that, the act complained of should,
under the circumstances, be legally wrongful, as regards the party complaining. That is, it must
prejudicially affect him in some legal right; merely that it will however directly, do him harm in his
interest is not enough.
A legal right, as defined by Austin, is a faculty which resides in a determinate party or parties
by virtue of a given law, and which avails against a party (or parties or answers to a duty lying on a
party or parties) other than the party or parties in whom it resides. Rights available against the
world at large are very numerous. They may be divided again into public rights and private rights.
To every right, corresponds a legal duty or obligation. This obligation consists in performing some
act or refraining from performing an act.

Liability for tort arises, therefore when the wrongful act complained of amounts either to an
infringement of a legal private right or a breach or violation of a legal duty.

II. 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. In this connection we must have a clear
notion with regard to the words damage and damages. The word damage is used in the ordinary
sense of injury or loss or deprivation of some kind, whereas damages mean the compensation
claimed by the injured party and awarded by the court. Damages are claimed and awarded by the
court to the parties. The word injury is strictly limited to an actionable wrong, while damage means
loss or harm occurring in fact, whether actionable as an injury or not.

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

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(i) Damnum Sine Injuria (Damage Without Injury)
There are many acts which though harmful are not wrongful and give no right of action to
him who suffers from their effects. Damage so done and suffered is called Damnum Sine Injuria or
damage without injury. Damage without breach of a legal right will not constitute a tort. They are
instances of damage suffered from justifiable acts. An act or omission committed with lawful
justification or excuse will not be a cause of action though it results in harm to another as a
combination in furtherance of trade interest or lawful user of one’s own premises. In Gloucester
Grammar School Master Case , it had been held that the plaintiff school master had no right to
complain of the opening of a new school. The damage suffered was mere damnum absque injuria
or damage without injury. Acton v. Blundell, in which a mill owner drained off underground water
running into the plaintiff’s well, fully illustrate that no action lies fro mere damage, however
substantial, caused without the violation of some right.

There are moral wrongs for which the law gives no remedy, though they cause great loss or
detriment. Los or detriment is not a good ground of action unless it is the result of a species of
wrong of which the law takes no cognizance.

(ii) Injuria Sine Damno (injury without damage)

This means an infringement of a legal private right without any actual loss or damage. In
such a case the person whose right has been infringed has a good cause of action. It is not
necessary for him to prove any special damage because every injury imports a damage when a man
in hindered of his right. Every person has an absolute right to property, to the immunity of his
person, and to his liberty, and an infringement of this right is actionable per se. actual perceptible
damage is not, therefore, essential as the foundation of an action. It is sufficient to show the
violation of a right in which case the law will presume damage. Thus in cases of assault, battery,
false imprisonment, libel, trespass on land, etc., the mere wrongful act is actionable without proof
of special damage. The court is bound to award to the plaintiff at least nominal damages if no
actual damage is proved. This principle was firmly established by the election case of Ashby v.
White, in which the plaintiff was wrongfully prevented from exercising his vote by the defendants,
returning officers in parliamentary election. The candidate fro whom the plaintiff wanted to give
his vote had come out successful in the election. Still the plaintiff brought an action claiming
damages against the defendants for maliciously preventing him from exercising his statutory right
of voting in that election. The plaintiff was allowed damages by Lord Holt saying that there was

4
the infringement of a legal right vested in the plaintiff.

III. 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’. If a man has a right, he must of necessity have a means to vindicate and
maintain it and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain
thing to imagine a right without remedy; want of right and want of remedy are reciprocal.

Difference between crime and tort:

Being a civil injury, tort differs from crime in all respects in which a civil remedy differs from a
criminal one. There are certain essential marks of difference between crime and tort they are:

• Tort is an infringement or privation of private or civil rights belongigng to individuals,

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

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

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

• In tort damages are paid for compensating the injured and in crime it is paid out of the fine
which is paid as a part of punishment. Thus the primary purpose of awrding compensation in
a criminal prosecution is punitive rather than compensatory.

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

Resemblance between crime and tort:

There is however a similarity between tort and crime at a primary level. In criminal law the
primary duty, not to commit an offence, for example murder, like any primary duty in tort is in rem
and is imposed by law. The same set of circumstances will in fact, from one point of view, constitute
a crime and, from another point of view, a tort. For example every man has the right that his bodily
safety shall be respected. Hence in an assault, the sufferer is entitled to get damages. Also, the act of
assault is a menace to the society and hence will be punished by the state. However where the same
wrong is both a crime and a tort its two aspects are not identical. Firstly, its definition as a crime and
a tort may differ and secondly, the defences available for both crime and tort may differ.

5
 The wrong doer may be ordered in a civil action to pay compensation and be also punished
criminally by imprisonment or fine. If a person publishes a defamatory article about another in a
newspaper, both a criminal prosecution for libel as well as a civil action claiming damages for the
defamatory publication may be taken against him. In P.Rathinam. v. Union of India, the Supreme
Court observed,

In a way there is no distinction between crime and a tort, inasmuch as a tort harms an individual
whereas a crime is supposed to harm a society. But then, a society is made of individuals. Harm to
an individual is ultimately the harm to the society.

There was a common law rule that when the tort was also a felony, the offender would not
be sued in tort unless he has been prosecuted in felony, or else a reasonable excuse had to be shown
for his non prosecution. This rule has not been followed in India and has been abolished in England.

Tort and contract:

The definition given by P.H. Winfield clearly brings about the distinction between tort and contract.
It says, Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards
persons generally and its breach is redressible by an action for unliquidated damages. A contract is
that species of agreement whereby a legal obligation is constituted and defined between the parties
to it. It is a legal relationship, the nature, content and consequence of which are determined and
defined by the agreement between the parties. According to Salmond, a contract arises out of the
exercise of the autonomous legislative authority entrusted by the law to private persons to declare
and define the nature of mutual rights and obligations.

At the present day, tort and contract are distinguished from one another in that, the duties in
the former are primarily fixed by law while in the latter they are fixed by the parties themselves.
Agreement is the basis for all contractual obligations. "People cannot create tortious liability by
agreement. Thus I am under a duty not to assault you, not to slander you, not to trespass upon your
land because the law says that I am under such duty and not because I have agreed with you to
undertake such duty.

Some of the distinctions between tort and contract are given below:

• A tort is inflicted against or without consent; a contract is founded upon consent.

• In tort no privity is needed, but it is necessarily implied in a contract.

6
 • A tort is a violation in rem (right vested in some person and available against the world at
large.); a breach of contract is an infringement of a right in personam( right available against
some determinate person or body).

• Motive is often taken into consideration in tort, but it is immaterial in a breach of contract.

• In tort the measure of damages is not strictly limited nor is it capable of being indicated with
precision; in a breach of contract the measure of damages is generally more or less nearly
determined by the stipulations of the parties.

Tort and Quasi-Contract:

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

Quasi contract differs from tort in that:

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

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

Malfeasance, misfeasance and non-feasance

Malfeasance in Tort Law

• Malfeasance is applied when any unlawful act is committed.

• It is relevant to those unlawful acts which are actionable per se

• no proof is required with.

• For example, trespass.

Malfeasance is a broad term covering any act which is illegal and causes physical or financial
harm to another individual. It is an intentional act of doing something wrong, either legally or
7
morally. The term malfeasance is utilized in both common law and criminal law to narrate any act
which is unlawful or not identified by law. It is not a different crime or tort but the word malfeasance
is used to n7arrate any act that is criminal or any wrongful act which causes injury to any person.
Under tort law, malfeasance has legal effect in civil court and the defendant can be sued by the
plaintiff for monetary damages. It is an act done with an immoral purpose and the person has the
knowledge that the act which is being committed exceeds the authority of the person doing the act

Malfeasance in Tort Law

• Malfeasance is applied when any unlawful act is committed.

• It is relevant to those unlawful acts which are actionable per se

• no proof is required with.

• For example, trespass.

Malfeasance is a broad term covering any act which is illegal and causes physical or financial
harm to another individual. It is an intentional act of doing something wrong, either legally or
morally. The term malfeasance is utilized in both common law and criminal law to narrate any act
which is unlawful or not identified by law. It is not a different crime or tort but the word malfeasance
is used to n7arrate any act that is criminal or any wrongful act which causes injury to any person.
Under tort law, malfeasance has legal effect in civil court and the defendant can be sued by the
plaintiff for monetary damages. It is an act done with an immoral purpose and the person has the
knowledge that the act which is being committed exceeds the authority of the person doing the act

In the case of Dunlop v. Woollahra Municipal Council, it was held that without malice the
claim for misfeasance could not be accepted.

Nonfeasance in Tort Law

Nonfeasance is the failure or omission to perform an obligatory or compulsory act. If a person

promises another person to perform a particular act and does not perform it, then it is nonfeasance
as the person was responsible for performing the act. Nonfeasance is an act of intentionally
neglecting to carry out a duty which is an obligation and because of the failure to perform the
duty, someone is harmed or injury has been caused. It harms another person or causes injury to a
person’s property. It is the lack of ability associated with the failure of the act. Unless and until a
person has a pre-existing relationship he will not be held liable for the failure of the act. It describes
inaction rather than action. Court believes that if people are not creating a dangerous situation then

8
also they must take proper care in order to prevent other people from a dangerous situation. The
relationships in which a person is forced to do something or is compelled to do something are
spouses, family members, school authorities and students, employee and employers, doctor and
patients, etc, their duty is to protect each other from danger.

In Municipal Corporation of Delhi vs. Subhagwanti, a clock tower fell down in Chandni
Chowk, Delhi, many people were injured and many died. The clock tower was not repaired for many
years and the municipal corporation was required to maintain it. The Municipal corporation failed
to do so and the tower collapsed. The municipal corporation was held liable as it was their duty to
repair the clock which they failed to do. It can be called as nonfeasance as there was an omission in
performing the compulsory act.

Difference between Malfeasance, Misfeasance, and Nonfeasance

The word “malfeasance” is derived from the French word “malfaisance”, which means
“wrongdoing”.

The word “misfeasance” is derived from the French word “misfeasance”, meaning “to mis-do”.

The word “nonfeasance” is derived from the French word “faisance” meaning “action”, and the
prefix non– which means not.

It means the “commission of an unlawful Act”. Example: trespass.

It means “improper performance of some lawful act”. Example: negligence.

Failure or omission to perform an act when there is an obligation to perform that act. Example:
omission or wrongful act.

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Module 02

Liability for the Wrong Committed :

1. Strict liability, absolute liability, no-fault liability; exceptions to these 2. Principle of

vicarious liability - nature, scope and justification 3. Doctrine of sovereign immunity 4. Joint
tort-feasors, joint and several liability

Rule of Strict Liability

The strict liability principle is an extremely important concept under the law of torts.
The basis of this principle basically lies in the inherent harm that some activities can inflict.
For example, leaking of poisonous gasses, as it happened in the Bhopal Gas Tragedy, will
attract this rule.
The underlying principle of compensation in torts generally depends on the extent of
precautions a person takes. Hence, if he takes abundant precautions to prevent some harm,
the law may exempt him from paying damages. This principle, however, does not apply to
strict liability.

Definition: The rule of law is that the person who, for his own purpose, brings on his land
and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his
peril; and if he does not do so is prima facie answerable for all the damage which is the natural
consequence of its escape - Blackburn, J.

1. Case- Crowhurst v. Amersham Burial Board,:-

If the branches of a poisonous tree that is planted on the defendant’s land spreads
out to the neighbouring plaintiff’s land, this amounts to the escape of that dangerous,
poisonous thing from the boundaries or control of the defendant and onto the plaintiff’s
land. Now, the issue arises, if the cattle of the plaintiff nibbles on these leaves, then the
defendant will be held liable under the mentioned rule even when nothing was done
intentionally on his part.

2. Case- Read vs. Lyons and Co., (1947) A.C. 156:-

The plaintiff worked as an employee in the defendant’s shell manufacturing company,
while she was on duty within the premises of the company, a shell being manufactured
there exploded due to which the plaintiff suffered injuries. A case was filed against the

10
defendant company but the court let off the defendant giving the verdict that strict liability
is not applicable here as the explosion took place within the defendant’s premises, the
concept of escape of a dangerous thing like the shell from the boundaries of the defendant
is missing here. Also negligence on the part of the defendant could not be proved.

Non-natural use of land: Water collected on land for domestic purposes does not amount

11
 to non-natural use of land but storing it in huge quantity like that in a reservoir amounts to
non-natural use of the land (Rylands vs. Fletcher). This distinction between natural and
non-natural use of land can be made possible by its adjustment to existing social conditions.
Growing of trees is held natural use of land but if the defendant is found to grow trees of
poisonous nature on his land, then it is non-natural use of the land. If the land has been used
naturally yet a conflict has risen between the defendant and the plaintiff, owing to natural
use of land, the court will not hold the defendant liable.

Mischief: To make the defendant liable under the doctrine of strict liability, the plaintiff
needs to prove that the defendant made non-natural use of his land and escape of the
dangerous thing caused mischief/damage to him. The resultant damage needs to be shown
by the plaintiff after successfully proving that unnatural use of the land was done by the
defendant.
Absolute Liability:
Definition: If an industry or enterprise is engaged in some inherently dangerous activity
from which it is deriving commercial gain and that activity is capable of causing
catastrophic damage then the industry officials are absolutely liable to pay compensation to
the aggrieved parties. The industry cannot plead that all safety measures were taken care of
by them and that there was negligence on their part. They will not be allowed any
exceptions neither can they take up any defence like that of ‘Act of God’ or ‘Act of
Stranger’.M.C. Mehta vs. Union of India, A.I.R. 1987 S.C. 1086:-
The S.C. of India was dealing with claims of leakage of oleum gas on the
4th and 6th December,1985 from one of the units of Shriram Foods and Fertilizers
Industries, Delhi. Due to this leakage, one advocate and several others had died. An action
was brought against the industry through a writ petition under Article 32 of the Indian
Constitution by way of a Public Interest Litigation (PIL). The judges in this case refused to
follow the Strict Liability Principle set by the English Laws and came up with the Doctrine
of Absolute Liability. The court then directed the organizations who had filed the petitions
to file suits against the industry in appropriate courts within a span of 2 months to demand
compensation on behalf of the aggrieved victims.
Vicarious liability:
Vicarious liability means the liability of a person for an act committed by another
person and such liability arises due to the nature of the relation between the two. For e.g. A,
is a driver who works for B and while driving B’s car for taking him to his office, he hits C,
12
 a pedestrian due to his negligence in driving. In such a case even though B was not driving
the car he will still be liable for the accident which was caused due to the negligence of A.

Relations in which Vicarious Liability arises:

These are the major relations in which vicarious liability of a person arises
1. Master and Servant.
2. Partners in a Partnership Firm.
3. Principal and Agent.
4. Company and its Directors.
5. Owner and Independent Contractor.

Vicarious Liability of Master for torts by Servant

In a Master-Servant relationship, the master employs the services of the servant and he works
on the command of master and thus a special relation exists between the two and in case of a
tort committed by the servant, his master is also held liable.
There are many cases in which the servant does an act for his master and thus in law, it is
deemed that the master was doing that act himself, therefore if the servant commits an
unlawful act the master will also be held liable for the same.

This liability of the master is based on the following two maxims

1. Qui facit per alium facit per se: – It means that whenever a person gets something done
by another person then the person is viewed to be doing such an act himself.
Illustration: If A is the owner of many trucks and employs drivers to drive them for the
purpose of trade and in case one of his drivers gets into an accident because of his rash
driving, then even though A did not drive the truck himself, he will be liable for the accident.

13
 2. Respondant Superior: – It means that the superior should be held responsible for the acts
done by his subordinate.
These two maxims have played a significant role in the development of the law of vicarious
liability of the master.

Essentials of Vicarious liability in Master-Servant Relationship

These essential conditions have to be followed for the vicarious liability of master to
arise: –
1. The servant has committed an act which amounts to a tort.
2. Such a tortious act is committed by the servant during the course of his employment under
the master.
Reasons for liability of the Master
There are several reasons behind holding the master liable for the acts of his servants which
are: –

1. An act which is committed by the servant is considered to be done by the master through him
and therefore in the law of torts, it is assumed that if any wrong is done by the servant, it has
been committed by his master indirectly and so the master is held liable for these wrongs.

2. The master is in a better financial position as compared to his servant and thus in case of any
loss caused by the tortious act of the servant, the master is better suited to pay off the damages
to the victim of the act. Also, since the master is made liable he makes sure that all reasonable
care and precautions are carried so that he can avoid such liability.
3. When a servant does any act, the benefit from such an act is enjoyed by the master and thus
for the liability arising out of the servant’s act, the master should also shoulder that liability.

Various ways in which liability of Master arises

A master becomes liable in the following situations:
Wrong done as a natural consequence of an act by Servant for Master with due care
If the employee does an act which is done in pursuance of the instructions of the
master, then the master will be held liable for any wrong which arises out of such an act even
if all due care is taken by the employee in discharging his work.

14
 In Gregory v. Piper(1829) 9 B & C 591, the defendant and plaintiff had some disputes
between them and the defendant, therefore, ordered his servant to place rubbish across a
pathway to prevent the plaintiff from proceeding on that way and the servant took all care to
ensure that no part of it was touching the part of the plaintiff’s property but with the passage
of some time. The rubbish slid down and touched the walls of the plaintiff and thus he sued
for trespass. The defendant was held liable despite his servant taking all due care.
Wrong due to Negligence of Worker
A master is also liable for an act of servant which he does negligently or fails to take
due care in carrying out.
In Pushpabai Purshottam Udeshi & Ors. v. Ranjit Ginning & Pressing Co. (P), deceased was
travelling in a car driven by the manager of the respondent company and it met with an
accident as a result of which he died. The dependents of the deceased filed a claim and the
tribunal allowed damages but on appeal to the High Court, it was set aside on the grounds
that the accident does not make the respondent company liable. But the Supreme Court in its
judgement overruled the judgement of the High Court and held that from the facts of the case
it was clear that the accident had occurred due to the negligence of the manager who was
driving the vehicle in the course of his employment and therefore, the respondent company
was liable for his negligent act.
Illustration: If H works as a house cleaner for K then there is a master and servant
relationship between them but, if H instead of cleaning the house decides to cook food even
though he has only been hired for cleaning the house and due to his negligence causes a fire
which also causes loss to K’s neighbour L, then K, will not be liable because H did an act
which was outside the course of his employment.

Wrong by excess or mistaken execution of a lawful authority

For making the master liable in such a case it has to be shown that: –
1. The servant had intended to do an act on behalf of his master, which he was authorized to do.
2. The act would have been lawful if it was done in those circumstances which the servant
mistakenly believed were true or if the act would have been lawful if done properly.
In Bayley v Manchester S&L Railway (1873) LR 8 CP 148, a porter of a railway company
while working mistakenly believed that the plaintiff was in the wrong carriage even though
he was in the right one. The porter thus pulled the plaintiff as a result of which the plaintiff
sustained injuries. Here, the Court held the railway company vicariously liable for the act of

15
the porter because it was done in the course of his employment and this act would have been
proper if the plaintiff was indeed in the wrong carriage.

Wrong committed willfully by a servant with the intention of serving the purpose of the
master
If a servant does any act willfully, recklessly or improperly then the master will be held
liable for any wrong arising out of such act, if such an act is done in the course of
employment.

In Limpus v. London General Omnibus Co. (1862) EngR 839, the driver of the defendant
company, willfully and against the express orders not to get involved in racing or to obstruct
other omnibuses, had driven to obstruct the omnibus of the plaintiff. In the case, the Court
held that the defendant company was liable for the act of driver because the driver’s act of
driving the omnibus was within the scope of the course of employment.

The doctrine of sovereign immunity is based on the Common Law principle borrowed
from the British Jurisprudence that the King commits no wrong and that he cannot be guilty
of personal negligence or misconduct, and as such cannot be responsible for the negligence
or misconduct of his servants.
Initially in India, the distinction between sovereign and non-sovereign functions was
maintained in relation to the principle immunity of the Government for the tortuous acts of
its servants. In India, there is no legislation which governs the liability of the State. It is
Article 300 of the Constitution of India, 1950, which specifies the liability of the Union or
the State with respect to an act of the Government.
An overview of Article 300 provides that the first part of the Article relates to the way
in which suits and proceedings by or against the Government may be instituted. It enacts that
a State may sue and be sued by the name of the Union of India and a State may sue and be
sued by the name of the State.
The Second part provides, inter alia, that the Union of India or a State may sue or be
sued if relation to its affairs in cases on the same line as that of Dominion of India or a
corresponding Indian State as the case may be, might have sued or been sued of the
Constitution had not been enacted.
Pre Constitutional Era –

16
 In India, the story of the birth of the doctrine of Sovereign Immunity begins with the
decision of Peacock C.J. in P. and O. Navigation Company v. Secretary of State for
India, in which the terms “Sovereign” and “Non-sovereign” were used while deciding the
liability of the East India Company for the torts committed by its servants.
In this case the provision of the Government of India Act, 1858 for the first time came
before the Calcutta Supreme Court for judicial interpretation and C.J. Peacock determined
the vicarious liability of the East India Company by classifying its functions into “sovereign”
and “non-sovereign”.
Two divergent views were expressed by the courts after this landmark decision in
which the most important decision was given by the Madras High Court in the case of Hari
Bhan Ji v. Secretary of State, where the Madras High Court held that the immunity of the
East India Company extended only to what were called the ‘acts of state’, strictly so called
and that the distinction between sovereign and Non-sovereign functions was not a well-
founded one.
No attempt however has been made in the cases to draw a clear and coherent
distinction between Sovereign and Non-Sovereign functions at all.
Post-Independence –
After the commencement of the Constitution, perhaps the first major case which came
up before the Supreme Court for the determination of liability of Government for torts of its
employees was the case of State of Rajasthan v. Vidyawati In this case, court rejected the
plea of immunity of the State and held that the State was liable for the tortious act of the
driver like any other employer.
Later, in Kasturi Lal v. State of U.P., the Apex Court took a different view and the
entire situation was embroiled in a confusion. In this case, the Supreme Court followed
therule laid down in P.S.O. Steam Navigation case by distinguishing Sovereign and non-
Sovereign functions of the state and held that abuse of police power is a Sovereign act,
therefore State is not liable.
In practice, the distinction between the acts done in the exercise of sovereign
functions and that done in non-Sovereign functions would not be so easy or is liable to create
considerable difficulty for the courts. The court distinguished the decision in Vidyawati’s
case as it involved an activity which cannot be said to be referable to, or ultimately based on
the delegation of governmental powers of the State. On the other hand, the power involved
in Kasturilal’s case to arrest, search and seize are powers characterized as Sovereign powers.
Finally the court expressed that the law in this regard is unsatisfactory and the remedy to cure
17
the position lies in the hands of the legislature.The Courts in later years, by liberal
interpretation, limited the immunity of State by holding more and more functions of the State
as non-Sovereign.
To ensure the personal liberty of individuals from abuse of public power, a new
remedy was created by the Apex court to grant damages through writ petitions under Article
32 and Article 226 of the Constitution. In the case of Rudal Shah v. State of Bihar, the
Supreme Court for the first time awarded damages in the writ petition itself.
In Bhim Singh v. State of Rajasthan, then principle laid down in Rudal Shah was
further extended to cover cases of unlawful detention. In a petition under Article 32, the
Apex court awarded Rs. 50,000 by way of compensation for wrongful arrest and detention.
State of A.P. v. Challa Ramakrishna Reddy, on the point clearly indicates that the
distinction between Sovereign and non-Sovereign powers have no relevance in the present
times. The Apex Court held that the doctrine of Sovereign immunity is no longer valid.

18
Module 03

General Defences / Justifications in an action for Tort :

when the plaintiff brings an action against the defendant for a particular tort and
proved the existence of all the essentials of that tort, then the defendant would be liable for
the same. The defendant may avoid his liability in such cases by taking the plea of some
defence. There is some general defence which may be taken against an action for numbers of
wrongs. When the plaintiff brings an action against the defendant and proved the existence
of all the essentials of that tort, then the defendant would be liable.
The general defence is an excuse used by the defendant in his favour to avoid the
liability for tort. They are as follows-
• Volenti non-fit injuria
The plaintiff voluntarily give his consent to suffer some harm, he has no remedy for
that in tort and his consent works as a good defence against him. No man can enforce the
right which he has voluntarily waived or abandoned. Consent to suffer the harm may be
expressed or implied or inferred from the conduct of the parties.
No action can be brought by a person who agrees to the publication of a matter
defamatory of himself. Ora player in the games of cricket or football is deemed to be agreeing
to any hurt which may be likely to occur in the normal course of the game.
the defence of consent to be available, the act causing the harm must not go beyond
the limit of what has been consented.
consent here must be free. If the consent is obtained by fraud or under compulsion. It
does not serve as a good defence. For the defence to apply, two points have to be proved:

• The plaintiff knew that the risk is present.

• He knowingly agreed to suffer that harm.
Merely that plaintiff knows of the harm does not imply that he assents to suffer it.
In the case of Padmavati vs. Dugganaika (1975), while the driver was taking the
jeep for the felling petrol in the tank, two strangers took a lift in the jeep. Suddenly one of
the bolts fixing the right wheel to the axel gave way toppling the jeep. The two strangers were
thrown out and sustained injuries and one of them died as a consequence of the sane.

19
 It was held that neither the driver nor his master would be liable firstly, it was a case
of a sheer accident and, secondly, the strangers had voluntarily got into the jeep and as such,
the principle of Volenti non-fit injuria was applied to this case.
The scope of this defence has been curtailed in the following cases-
• Rescues cases
• By the Unfair Contract Terms Act, 1977 (England).
• Although the plaintiff has consented to suffer the harm, he may still be entitled to his action
against the defendant in these exceptional cases.
• Plaintiff, the wrongdoer
• Volenti non-fit injuria
the plaintiff voluntarily give his consent to suffer some harm, he has no remedy for
that in tort and his consent works as a good defence against him. No man can enforce the
right which he has voluntarily waived or abandoned. Consent to suffer the harm may be
expressed or implied or inferred from the conduct of the parties.
No action can be brought by a person who agrees to the publication of a matter
defamatory of himself. Ora player in the games of cricket or football is
deemed to be agreeing to any hurt which may be likely to occur in the normal course of the
game.
The defence of consent to be available, the act causing the harm must not go beyond
the limit of what has been consented.
consent here must be free. If the consent is obtained by fraud or under compulsion. It
does not serve as a good defence. For the defence to apply, two points have to be proved:
• The plaintiff knew that the risk is present.
• He knowingly agreed to suffer that harm.
Merely that plaintiff knows of the harm does not imply that he assents to suffer it.

• Private Defence
the law permits people to use the reasonable force to protect one’s person or property.
If the defendant uses the force which is necessary for self- defence, he will not be liable for
the harm he caused thereby

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21
 Module 04 Torts against Persons :
1. Assault, Battery, Mayhem
Assault and Battery are two terms that are used interchangeably extremely
often. In one’s mind, the term ‘assault’ means to physically hit or injure another, but
it is not so. They are two distinct legal terms. In reality, it is ‘battery’ that means the
action of physical force upon a person, whilst ‘assault’ refers to attempting battery or
allowing one to believe that an act of battery is about to occur. Both of these torts are
criminal offences under criminal law. There is also another tort in relation to Assault
and Battery called ‘mayhem’ which is an offense against the person in which the
offender violently deprives his victim of a member of his body, thus making him less
able to defend himself. It may also be called as the “intentional maiming”. This article
delves into the details of these torts, their essentials, and its definitions.

BATTERY
Before we understand what battery is, it is essential to understand the term ‘battery’,
its meaning and its essentials.
Meaning: Battery refers to the intentional application of force to another person
without any lawful justification. It is defined in the Indian Penal Code under Section
350.
The essentials of battery are as follows:
▪ Use of Force – Battery is the use of force against another person without any justification.
The wrong is constituted no matter how small or trivial the force may be and even if no such
harm is caused to the victim. Force doesn’t always
▪ need to mean bodily harm. It can be caused through use of other things like a stick, bullet,
heat, light, etc.
▪ Without lawful justification – It is imperative that the use of force should be intentional and
should not have any lawful justification. It is impossible for humans to survive without having
physical contact with each other. Not every physical contact constitutes a battery. When the
contact is aggressive, and non required it may become a battery. However, the use of force is
justified when it comes to the saving of a person’s life.

ASSAULT
Assault is an act of the defendant which causes the plaintiff reasonable apprehension
of the infliction of a battery upon him. The wrong of assault is completed when the
22
defendant creates an impression in the mind of the plaintiff that an act of battery is
about to be committed. Assault takes place before battery. A clenched fist is an
assault, but throwing a punch and hitting the other person amounts to battery. The
Indian Penal Code defines Assault under Section 351
MAYHEM
Mayhem is a tort that causes severe injury to the victim such that he is unable to
defend himself from the tortfeasor. It is closely intertwined with assault and battery.
While assault refers to the threat of battery, and battery is the physical usage of force
against a person, mayhem deals with the disfigurement or loss of any body part
due to physical injury caused by the tortfeasor. The disabling of an arm, hand,
finger, leg, foot, or eye are examples of mayhem. To be guilty of the criminal offense,
one must intend to dismember the victim or must assault him so recklessly as to create
the danger of dismemberment even though not intending to cripple.
Assault is an action that causes an apprehension in the mind of the victim that
an act of battery is about to take place; Battery refers to the act of striking someone
with physical force and no lawful justification and mayhem refers to the act of
crippling someone and rendering them defenseless. Assault generally refers to only
intent to cause harm, whereas both battery, as well as mayhem, inflict physical injury
upon the victim.
Assault takes before the crime of battery is committed and mayhem is a severe form
of battery. All these 3 torts are associated with each other and form an integral part of
criminal as well as tort law.
Emotional Distress Torts
Tort law protects people from harms which result from the wrongful conduct of
others. While we usually associate tort claims with harms to people or to property,
the law also recognizes emotional or psychological harm as a distinct form of injury.
This recognition was a result of a historical development, as society increasingly
understood the severity and the long-lasting consequences of mental injury.
Under the traditional common law, damages for mental harms were only
recoverable as part of torts like assault, battery, or false imprisonment. Plaintiffs could
include emotional distress as an additional harm if they also suffered physical injury
or the threat of physical injury. Eventually, the courts recognized the infliction of
psychological injury as its own independent cause of action, even without any
accompanying harm to a person or property. Today, most jurisdictions recognize two
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 torts for emotional harm, the intentional infliction of emotional distress, and the
negligent infliction of emotional distress.

Malicious prosecution

Malicious prosecution is the malicious institution of unsuccessful criminal or

bankruptcy or liquidation proceedings against another without reasonable or
probable cause. This tort balances competing principles, namely freedom that every
person should have in bringing criminals to justice and the need for restraining false
accusations against innocent persons. Malicious prosecution is an abuse of the
process of the court by wrongfully setting the law in motion on a criminal charge.
The foundation lies in the triangular abuse of the court process of the court by
wrongfully setting the law in motion and it is designed to encourage the perversion
of the machinery of justice for a proper cause the tort of malicious position provides
redress for those who are prosecuted without cause and with malice. In order to
succeed the plaintiff must prove that there was a prosecution without reasonable and
just cause, initiated by malice and the case was resolved in the plaintiff's favor. It is
necessary to prove that damage was suffered as a result of the prosecution.

In an action of malicious prosecution the plaintiff must prove:

1) That he was prosecuted by the defendant.
2) That the proceeding complained was terminated in favour of the present plaintiff
3) That the prosecution was instituted against without any just or reasonable cause.
4) That the prosecution was instituted with a malicious intention, that is, not with
the mere intention of getting the law into effect, but with an intention, which was
wrongful in fact.
5) That he suffered damage to his reputation or to the safety of person, or to security
of his property.
Elements of malicious prosecution
1. Institution or continuation of Legal proceedings
2. Termination of the prosecution in the plaintiff's favour
3. Absence of reasonable and probable cause
4. Malice
5. Damages

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 Wrongful imprisonment occurs when a person (who does not have the legal right or
justification) is intentionally restricts another person from exercising his freedom. When someone
intentionally restricts another person’s freedom, he can be found liable for false imprisonment in
civil and criminal courts. The factors which constitute false imprisonment are:

1. Probable cause of imprisonment.

2. Plaintiff’s knowledge for imprisonment.
3. Intent of defendant during imprisonment and confinement period matters.
Elements of false imprisonment
1. Wilful detention
2. The intention factor
3. Knowledge of the plaintiff

Defences of false imprisonment

1. Valid Arrest
2. Consent to Restraint
3. Probable Cause

Remedies

1. Action for loss

2. Nominal and compensatory damages

3. Habeas corpus

4. Self help

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.

26
Module 05 Torts against Reputation

Depending on the manner in which one makes a false statement, defamation may be either
libel or slander. Libel basically means defamation in a permanent or written form. For example, a
written or printed claim against a person is libel.

On the other hand, slander means a defamatory statement in a transient form. For example, if a person
says something defamatory against somebody, he commits slander.

Another difference between libel and slander is the punishment they attract. Under common
law, libel is a criminal offence as well as a civil wrong, while slander is just a civil wrong. However,
that is not the case in India. According to Indian law, both libel and slander can be criminal offences
as well as civil wrongs.

Remedy against Defamation

As we have seen above, defamation is an offence and even a civil wrong. This means that a
person suffering defamation can opt for both remedies. He can file a criminal complaint under
Section 499 IPC, which defines defamation. Conviction under this provision attracts the punishment
of imprisonment unto 2 years or fine or both.

On the other hand, a person suffering from defamation can also file a civil suit claiming
damages. The extent of damages depends on factors like the nature of statements, the amount of loss,
etc. Many celebrities, politicians and known persons seek crores of Rupees as damages for
defamation.

Defences against Defamation

There are certain defences a person can take to escape liability of compensation for defamation. The
following are some such defences:

1) Truth

Truth is the most important defence or justification for defamation. This is because only false
statements against a person constitute defamation. Hence, if the person making the statements proves
them to be true, he can escape liability. However, this defence might not apply in criminal
proceedings for defamation.

The burden of proving the truthfulness of a statement always lies on the defendant alone.
Furthermore, he must prove the truthfulness in substance and not summarily. If the statement is false,
he cannot take the defence of believing it to be true in his own mind.
27
2) Fair and bona fide comment

The defendant in a claim of defamation can take the defence of making a fair and bona fide
comment. Thus, making fair and reasonable criticism without any malicious intention does not
amount to defamation. For example, making statements against maladministration by a
government’s cabinet minister might not amount to defamation.

The defendant, in this case, needs to prove that he did not possess mala fine intentions. He
must also justify his statements by showing how he had fair or bona fide intentions.

3) Privilege

The law sometimes grants certain privileges to particular persons in some situations. Any
statements by a person enjoying such privileges cannot amount to defamation.

For example, a Member of Parliament has an absolute privilege for any

statements he makes in Parliament. The Constitution grants complete immunity from prosecution for
defamation for such statements. Such privileges sometimes exist in judicial proceedings as well.

4) Apology

In case the person who makes a defamatory remark later issues an apology, he can escape
liability of compensation. For this defence, the person suffering the tort of defamation must accept
the apology.

5) Amends

Under English law, amends are justifiable defences for defamation. Amends mean correction
or retraction of the defamatory statements by the defendant. For example, a newspaper making a
false statement against a person may issue a clarification later.

Cyber Defamation

The widely used social media brought a revolution not only in the Indian sphere but also all
across the world. The remarkable growth of the Internet has provided people with a platform to
express their opinions, thoughts, and feelings through various forms of publications. Nonetheless,
the ease of accessibility and publication in this online world has created several risks as these digital
platforms are prone to be exploited by unscrupulous Internet users in the name of freedom of speech
and expression. Thus this has led to numerous cases of “Cyber Defamation”.

28
 Cyber defamation is a new concept but the traditional definition of defamation is injury
caused to the reputation of a person in the eyes of a third person, and this injury can be done by
verbal or written communication or through signs and visible representations. The statement must
refer to the plaintiff, and the intention must be to

lower the reputation of the person against whom the statement has been made. On the other hand,
Cyber defamation involves defaming a person through a new and far more effective method such as
the use of modern Electronic devices. It refers to the publishing of defamatory material against any
person in cyberspace or with the help of computers or the Internet. If a person publishes any kind of
defamatory statement against any other person on a website or sends E-mails containing defamatory
material to that person to whom the statement has been made would tantamount to Cyber defamation.

29
Module 06 Torts against Property :

Trespass to land

Trespass to land involves the "wrongful interference with one's possessory rights in [real]
property." It is not necessary to prove that harm was suffered to bring a claim, and is instead
actionable per se. While most trespasses to land are intentional, British courts have held liability
holds for trespass committed negligently. Similarly, some American courts will only find liability
for unintentional intrusions where such intrusions arise under circumstances evincing negligence or
involve a highly dangerous activity. Exceptions exist for entering land adjoining a road
unintentionally (such as in a car accident), as in River Wear Commissioners v Adamson.

Subsoil and Airspace

Aside from the surface, land includes the subsoil, airspace and anything permanently attached
to the land, such as houses.
Interference
The main element of the tort is "interference". This must be both direct and physical, with
indirect interference instead being covered by negligence or nuisance. "Interference" covers any
physical entry to land, as well as the abuse of a right of entry, when a person who has the right to
enter the land does something not covered by the permission. If the person has the right to enter the
land but remains after this right expires, this is also trespass. It is also a trespass to throw anything
on the land. For the purposes of trespass, the person who owns the land on which a road rests is
treated as the owner; it is not, however, a trespass to use that road if the road is constructed with a
public use easement, or if, by owner acquiescence or through adverse use, the road has undergone a
common law dedication to the public.

Defenses
There are several defenses to trespass to land; license, justification by law, necessity and jus
tertii. License is express or implied permission, given by the possessor of land, to be on that land.
These licenses are irrevocable unless there is a flaw in the agreement or it is given by a contract.
Once revoked, a license-holder becomes a trespasser if they remain on the land. Justification by
law refers to those situations in which there is statutory authority permitting a person to go onto
land. Jus tertii is where the defendant can prove that the land is not possessed by the plaintiff, but
by a third party.This defense is unavailable if the plaintiff is a tenant and the defendant a landlord

30
who had no right to give the plaintiff his lease (e.g. an illegal apartment rental, an unauthorized
sublet, etc.). Necessity is the situation in which it is vital to commit the trespass.

conversion:

A conversion is an act, or complex series of acts, of willful interference, without lawful

justification, with any chattel in a manner inconsistent with the right of another, whereby that other
is deprived of the use and possession of it. It is also called as trover.

Essentials of Conversion

According to the definition mentioned above, we can infer that two elements can be said to have
been intertwined into it. It can be arranged as under:

a) Conversion would be caused if the chattel belonging to another person is interfered with in a
manner, which is inconsistent with the rights of that person entitled to that chattel.

b) Another essential is that the intention of the other party interfering with the chattel comes into
the way so as to deny that person’s (owner’s or immediate possessor) right or to assert one’s own
rights which is, in fact, inconsistent with the rights of the person or in assertion of that right.

31
Module 07

169. Procedure and powers of Claims Tribunals.

In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may
be made in this behalf, follow such summary procedure as it thinks fit.

The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence
on oath and of enforcing the attendance of witnesses and of compelling the discovery and production
of documents and material objects and for such other purposes as may be prescribed; and
the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and
Chapter XXVI of the Code of Criminal Procedure, 1973. (2 of 1974.)

Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the
purpose of adjudicating upon any claim for
compensation, choose one or more persons possessing special knowledge of any
matter relevant to the inquiry to assist it in holding the inquiry.

Liability to pay compensation in certain cases on the principle of no fault.—

(1) Where death or permanent disablement of any person has resulted from an accident arising out
of the use of a motor vehicle or motor vehicles, the owner of the vehicle 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.

(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death
of any person shall be a fixed sum of 1[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 [twenty-five thousand rupees].

(3) In any claim for compensation under sub-section (1), the claimant shall not be required 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 of any 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 permanent disablement the claim
has been made nor shall the quantum of compensation recoverable in respect of such death or
permanent disablement be reduced on the basis of the share of such person in the responsibility for

32
such death or permanent disablement. 3[(5) Notwithstanding anything contained in sub-section (2)
regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give
compensation 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 section 163A.

163A. Special provisions as to payment of compensation on structured formula basis. —

(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or
instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be
liable to pay in the case of death or permanent disablement due to accident arising out of the use of
motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim,
as the case may be. Explanation. —For the purposes of this sub-section, “permanent disability” shall
have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923).

(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead
or establish that the death or permanent disablement in respect of which the claim has been made
was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned
or of any other person.

(3) The Central Government may, keeping in view the cost of living by notification in the Official
Gazette, from time to time amend the Second Schedule.

Nuisance: A Tort

The word “nuisance” is derived from the French word “nuire”, which means “to do hurt, or to annoy”.
One in possession of a property is entitled as per law to undisturbed enjoyment of it. If someone
else’s improper use in his property results into an unlawful interference with his use or enjoyment of
that property or of some right over, or in connection with it, we may say that tort of nuisance
occurred. In other words, Nuisance is an unlawful interference with a person’s use or enjoyment of
land, or of some right over, or in connection with it. Nuisance is an injury to the right of a person in
possession of a property to undisturbed enjoyment of it and result from an improper use by another
person in his property.

According to Salmond, “the wrong of nuisance consists in causing or allowing without lawful
justification the escape of any deleterious thing from his land or from elsewhere into land in
possession of the plaintiff, e.g. water, smoke, fumes, gas, noise, heat, vibration, electricity, disease,
germs, animals”.

33
In Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13, the plaintiffs’-appellants sued the
defendants-respondents for a permanent injunction to restrain them from exhibiting the film “Jai
Santoshi Maa”. It was contended that exhibition of the film was a nuisance because the plaintiff’s
religious feelings were hurt as Goddesses Saraswati, Laxmi and Parvati were defined as jealous and
were ridiculed.

It was held that hurt to religious feelings was not an actionable wrong. Moreover the plaintiff’s were
free not to see the movie again.

KINDS OF NUISANCE
Nuisance is of two kinds:
· Public Nuisance
Under Section 3 (48) of the General Clauses Act, 1897, the words mean a public nuisance defined
by the Indian Penal Code.
Section 268 of the Indian Penal Code, defines it as “an act or illegal omission which causes
any common injury, danger or annoyance, to the people in general who dwell, or occupy property,
in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons
who may have occasion to use any public right.”
Simply speaking, public nuisance is an act affecting the public at large, or some considerable
portion of it; and it must interfere with rights which members of the community might otherwise
enjoy.
Thus acts which seriously interfere with the health, safety, comfort or convenience of the
public generally or which tend to degrade public morals have always been considered public
nuisance.

In the following circumstances, an individual may have a private right of action in respect a public
nuisance.
1. He must show a particular injury to himself beyond that which is suffered by the rest of public
i.e. he must show that he has suffered some damage more than what the general body of the public
had to suffer.
2. Such injury must be direct, not a mere consequential injury; as, where one is obstructed, but
another is left open.
3. The injury must be shown to be of a substantial character, not fleeting or evanescent.

34
In Solatu v. De Held (1851) 2 Sim NS 133, the plaintiff resided in a house next to a Roman
Catholic Chapel of which the defendant was the priest and the chapel bell was rung at all hours of
the 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 of one’s property, or of anything 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.
In contrast to public nuisance, private nuisance is an act affecting some particular individual or
individuals as distinguished from the public at large. The remedy in an action for private nuisance
is a civil action for damages or an injunction or both and not an indictment.

Elements of Private Nuisance

Private nuisance is an unlawful interference and/or annoyance which cause damages to an occupier
or owner of land in respect of his enjoyment of the land.
Thus the elements of private nuisance are:
1. unreasonable or unlawful interference;
2. such interference is with the use or enjoyment of land, or some right over, or in connection with
the land; and
3. damage.

DEFENCES TO NUISANCE
Prescription:
A title acquired by use and time, and allowed by Law; as when a man claims any thing,
because he, his ancestors, or they whose estate he hath, have had possession for the period
prescribed by law. This is there in Section 26, Limitation Act & Section 15 Easements Act.

Statutory Authority
Where a statute has authorised the doing of a particular act or the use of land in a particular way,
all remedies whether by way of indictment or action, are taken away; provided that every
35
reasonable precaution consistent with the exercise of the statutory powers has been taken. Statutory
authority may be either absolute or conditional.

REMEDIES FOR NUISANCE

The remedies available for nuisance are as follows:
Injunction- It maybe a temporary injunction which is granted on an interim basis and that maybe
reversed or confirmed. If it’s confirmed, it takes the form of a permanent injunction. However the
granting of an injunction is again the discretion of the Court

Damages- The damages offered to the aggrieved party could be nominal damages i.e. damages just
to recognize that technically some harm has been caused to plaintiff or statutory damages i.e.
where the amount of damages is as decided by the statute and not dependent on the harm suffered
by the plaintiff or exemplary damages i.e. where the purpose of paying the damages is not
compensating the plaintiff, but to deter the wrongdoer from repeating the wrong committed by
him.

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

36
Module 08

Remedies in Tort :

When the aggrieved person is taken back to the position that they were enjoying before their rights
were infringed, they are said to have been provided with a legal remedy. There are various types of
legal remedies.

For instance, if something that belongs to you has been taken away from you by a party, the court
can either ask them to pay you back in money, or ask them to return your belongings as they were,
and may also punish the party in some cases.

Remedies in Tort Law are of 2 types

1. Judicial Remedies: These are the remedies that the courts of law provide to an aggrieved
party.
2. Extra-Judicial Remedies: If the injured party takes the law in their own hand (albeit lawfully),
the remedies are called extra-judicial remedies.

Judicial remedies in tort are of three main types

1. Damages: Damages or legal damages is the amount of money paid to the aggrieved party to
bring them back to the position in which they were before the tort had occurred. They are
paid to a plaintiff to help them recover the loss they have suffered. Damages are the primary
remedy in a cause of action for torts. The word “damages” should not be confused with the
plural of the word “damage” which means ‘harm’ or ‘injury’.

In torts, the damages which are awarded by Courts to the plaintiff can be classified into several heads.

1. Nominal Damages

Nominal damages are those in which even though the plaintiff has suffered a legal injury at the hands
of the defendant, there is no actual suffered by him. These damages are provided in the cases of
Injuria sine damno in which the Court recognises the violation of the right of the plaintiff but the
amount of damages are so nominal or low because of no actual loss to the plaintiff.

2. Contemptuous Damages

In these type of damages, the Court recognises that the right of the plaintiff is violated but to show
that the suit brought by the plaintiff is of such a trivial nature that it has only wasted the time of the
Court, the Court awards a meagre amount to the plaintiff as damages. This is similar to the nominal

37
damages but the only difference between the two is that in nominal damages the plaintiff suffers no
actual loss and in contemptuous damages, the plaintiff suffers actual damage but it is a trivial one in
which he does not deserves to be fully compensated.

Illustration: If A’s dog enters B’s house and relieves himself and B accidentally steps on it and is
disgusted and thus, he brings a suit against A, the Court will rule in B’s favour but because of such
a trivial nature of this case the damages awarded by the Court will be of a meagre amount.

3. Compensatory Damages

Compensatory damages are awarded to help the plaintiff to reach his original position at which he
was before the tort was committed against him. These damages are not awarded to punish the
defendant but to restore the plaintiff to his previous situation. These damages are very helpful in
cases of monetary losses in which the amount of loss can be easily calculated and therefore that
amount can be ordered to be paid to the plaintiff so that he can replace the damaged product or goods
with such amount.

Illustration: K takes T’s bike and due to his rash driving the bike gets damaged. Here K can be
awarded compensatory damages in which the amount for repairing the bike will be payable to K by
T so that the bike’s condition can be restored back to its original state.

4. Aggravated Damages

These damages are awarded for the extra harm which is caused to the plaintiff which cannot be
compensated by the compensatory damages and it is given for factors such as the loss of self-esteem,
pain and agony suffered by the plaintiff etc. which cannot be calculated in monetary terms. These
damages are therefore additional damages which are awarded to the plaintiff other than the damages
awarded for his pecuniary loss.

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Illustration: A makes false claims against B as a result of which B’s standing in the society is greatly
affected and he is also ridiculed by people which leads to him losing his self-confidence and self-
esteem. Here Court can award B aggravated damages for the humiliation and loss of confidence
because of his suffering which is caused by A’s act.

5. Punitive Damages

These damages are also known as exemplary damages and the purpose of these damages is to punish
the defendant and to make an example of him so that others are deterred from committing the same
act as he did. Thus, whenever a Court feels that the act of the defendant was severely gross, it awards
punitive damages against him to the plaintiff.

Illustration: A company advertises that its pill will help in quick weight loss and is made up of
natural ingredients, as a result, the plaintiff purchases it. But due to the pills containing certain
chemicals, it makes the plaintiff severely ill. Here the Court can not only allow compensatory
damages to the plaintiff but because of the company’s false claims, it can also award punitive
damages so that it does not repeat the act again.

Calculating Damages

There are some rules which are applied in certain conditions for calculating the amount of damages
in a case.

Damages in case of a reduction of life span

Whenever due to the tort committed by the defendant, the lifespan of the plaintiff is reduced, the
amount of damages which will be awarded to him is calculated without taking into consideration his
social status. The damages are not provided for the loss of the years of life but are provided for a
happy life.

The happiness of life is calculated according to the subjective expectation of a reasonable man and
not of the expectations of the plaintiff or how he thought his life

was going to be. The damages which are awarded to the plaintiff are moderate.

Illustration: B suffers a severe injury due to the tort of A which has caused his life

39
span to be reduced to 10 years. Here even though B was a rich person and enjoyed a good social
status, the damages which will be provided to him will be done with the perspective of the
requirements of a reasonable man.

Damages in case of death of a person

In calculating the amount of damages in cases where a person’s death is caused, two theories are
used by the Courts:

• Interest Theory

In Interest theory, the Court determines the loss suffered by the dependant as a result of the death of
the person on whom he depended. After such amount is determined, a lump sum payment is made
which if deposited should provide that much amount of interest which is equal to the sum which has
been determined by the Court.

Illustration: If A dies by the tort of B leaving behind C and the Court determines that the monthly
loss suffered by C is Rs.5,000. Then the Court will order the deposit of such amount from which the
interest which is earned, is equal to Rs.5,000.

• Multiplier Theory

In this theory if there is any loss which is likely to occur in the future as a result of the tort committed
by the defendant, that likely loss is multiplied with a multiplier which indicates the number of years
for which such a loss is likely to continue and the result of such a multiplication is the amount of
damages which is awarded by the court.

Illustration: If A dies due to the tort of B leaving behind C who knows that she has to pay the
mortgage money for their house for the next five years. Here, by applying

the multiplier theory, the amount of mortgage which has to be paid will be calculated and will be
awarded to C.

2. Injunction: Injunction is an equitable remedy available in torts, granted at the discretion of

the court. An equitable remedy is one in which the court, instead of compensating the
aggrieved party, asks the other party to perform his part of the promises. So, when a court
asks a person to not continue to do something, or to do something positive so as to recover
the damage of the aggrieved party, the court is granting an injunction.

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 3. Specific Restitution of Property: the third judicial remedy available in the Law of Torts is
that of Specific Restitution of Property. Restitution means the restoration of goods back to
the owner of the goods. When a person is wrongfully dispossessed of his property or goods,
he is entitled to the restoration of his property.

Extra-judicial Remedies in Tort

These are of five main types:

1. Expulsion of trespasser: A person can use a reasonable amount of force to expel a trespasser
from his property.
2. Re-entry on land: In this case, the owner of a property can remove the trespasser and re-
enter his property by using a reasonable amount of force.
3. Re-caption of goods: In this case, the owner of goods is entitled to recapture his/her goods
from any person whose unlawful possession they are in.
4. Abatement: In case of a nuisance, be it private or public, a person (the injured party) can
remove the object causing nuisance.
5. Distress Damage Feasant: Lastly, distress damage feasant. In this case, a
person’s cattle/other beasts move to another’s property and his crops are spoiled. The owner
of the property is entitled to take possession of the beasts until he is compensated for the loss
suffered by him.

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Module 9

In India, the consumer movement as a ‘social force’ originated with the necessity of protecting
and promoting the interests of consumers against unethical and unfair trade practices. Rampant
food shortages, hoarding, black marketing, adulteration of food and edible oil gave birth to the
consumer movement in an organized form in the 1960s. Till the 1970s, consumer organisations
were largely engaged in writing articles and holding exhibitions. They formed consumer groups to
look into the malpractices in ration shops and overcrowding in the road passenger transport. More
recently, India witnessed an upsurge in the number of consumer groups.
The consumer movement arose out of dissatisfaction of the consumers as many unfair practices
were being indulged in by the sellers. There was no legal system available to consumers to protect
them from exploitation in the marketplace. For a long time, when a consumer was not happy with a
particular brand product or shop, he or she generally avoided buying that brand product, or would
stop purchasing from that shop. It was presumed that it was the responsibility of consumers to be
careful while buying a commodity or service. It took many years for organisations in India, and
around the world, to create awareness amongst people. Because of all these efforts, the movement
succeeded in bringing pressure on business firms as well as government to correct business
conduct which may be unfair and against the interests of consumers at large. A major step taken in
1986 by the Indian government was the enactment of the Consumer Protection Act 1986.

Consumer Protection Act, 1986

It may be mentioned at the outset that any one interested in the task of consumer protection
movement has to be well versed in various laws and not merely with the Consumer Protection Act,
1986. He should have knowledge of laws relating to Contract, Tort, Railways, Telegraphs,
Telephones, Post, Air Travel, Insurance, Electricity, Water, Housing, Medicine, Banking, Finance,
Engineering, Motor Vehicles, Hotel Industry, Entertainment, Cooperative Societies, Tourism
Agencies, Sales Tax, Central Excise, Limitation, Transport etc. There is no limit to subjects, which
may come before a Consumer Forum / Commission for decision. In addition, one should also be
well versed with the laws relating to unfair trade practice and restrictive trade practices. Be it as it
may. In India various Acts intended to protect the consumers against different forms of exploitation
were enacted.

The Objectives of Consumer Protection Act, 1986 in India

The purpose of the Act is to provide for the establishment of the Commission:
· To prevent practices having adverse effect on competition;
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· To promote and sustain competition in markets;
· To protect the interests of consumers and
· To ensure freedom of trade carried on by other participants in the markets, in India.

Complainant

“complainant” means—

(i) a consumer; or

(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or
under any other law for the time being in force; or

(iii) the Central Government or any State Government; or

(iv) one or more consumers, where there are numerous consumers having the same interest;

(v) in case of death of a consumer, his legal heir or representative; who or which makes a
complaint;

Complaint:

“complaint” means any allegation in writing made by a complainant that—

(i) an unfair trade practice or a restrictive trade practice has been adopted by 6 [any trader or service
provider

(ii) the goods bought by him or agreed to be bought by him suffer from one or more defects;

(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency
in any respect;

(iv) a trader or the service provider, as the case may be, has charged for the goods or for the services
mentioned in the complaint, a price in excess of the price—

(a) fixed by or under any law for the time being in force;

(b) displayed on the goods or any package containing such goods;(c) displayed on the price list
exhibited by him by or under any law for the time being in force;(d) agreed between the parties;

(v) goods which will be hazardous to life and safety when used are being offered for sale to the
public,—

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(a) in contravention of any standards relating to safety of such goods as required to be complied with,
by or under any law for the time being in force;

(b) if the trader could have known with due diligence that the goods so offered are unsafe to the
public;

(vi) services which are hazardous or likely to be hazardous to life and safety of the public when
used, are being offered by the service provider which such person could have known with due
diligence to be injurious to life and safety;

Consumer:

“consumer” means any person who,—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly
promised, or under any system of deferred payment 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 of deferred payment, when such use is made with the approval of such person,
but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid
and partly promised, or under any system of deferred payment and includes any beneficiary of such
services other than the person who hires or avails of the services for consideration paid or promised,
or partly paid and partly promised, or under any system of deferred payment, when such services are
availed of with the approval of the first mentioned person but does not include a person who avails
of such services for any commercial purpose;

Rights of Consumers

Right to Safety:

According to this right the consumers have the right to be protected against the marketing of goods
and services which are hazardous to life and property, this right is important for safe and secure life.
This right includes concern for consumer’s long term interest as well as for their present requirement.

Sometimes the manufacturing defects in pressure cookers, gas cylinders and other electrical
appliances may cause loss to life, health and property of customers. This right to safety protects the
consumer from sale of such hazardous goods or services.

Right to Information:

44
According to this right the consumer has the right to get information about the quality, quantity,
purity, standard and price of goods or service so as to protect himself against the abusive and unfair
practices. The producer must supply all the relevant information at a suitable place.

Right to Choice:

According to this right every consumer has the right to choose the goods or services of his or her
likings. The right to choose means an assurance of availability, ability and access to a variety of
products and services at competitive price and competitive price means just or fair price

45
The producer or supplier or retailer should not force the customer to buy a particular brand
only. Consumer should be free to choose the most suitable product from his point of view.

1. Right to be Heard or Right to Representation:

According to this right the consumer has the right to represent him or to be heard or right to
advocate his interest. In case a consumer has been exploited or has any complaint against the
product or service then he has the right to be heard and be assured that his/her interest would
receive due consideration.

This right includes the right to representation in the government and in other policy making
bodies. Under this right the companies must have complaint cells to attend the complaints of
customers.

2. Right to Seek Redressal:

According to this right the consumer has the right to get compensation or seek redressal against
unfair trade practices or any other exploitation. This right assures justice to consumer against
exploitation.

The right to redressal includes compensation in the form of money or replacement of goods or
repair of defect in the goods as per the satisfaction of consumer. Various redressal forums are
set up by the government at national level and state level.

3. Right to Consumer Education:

According to this right it is the right of consumer to acquire the knowledge and skills to be
informed to customers. It is easier for literate consumers to know their rights and take actions
but this right assures that illiterate consumer can seek information about the existing acts and
agencies are set up for their protection.

The government of India has included consumer education in the school curriculum and in
various university courses. Government is also making use of media to make the consumers
aware of their rights and make wise use of their money.

Manner in which complaint shall be made.—

(1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or
any service provided or agreed to be provided may be filed with a District Forum by –(a) the

46
consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such
service provided or agreed to be provided;

(b) any recognised consumer association whether the consumer to whom the goods sold or
delivered or agreed to be sold or delivered or service provided or agreed to be provided is a
member of such association or not;

(c) one or more consumers, where there are numerous consumers having the same interest,
with the permission of the District Forum, on behalf of, or for the benefit of, all conumers so
interested; or

(d) the Central Government or the State Government, as the case may be, either in its
individual capacity or as a representative of interests of the consumers in general.

(2) Every complaint filed under sub-section (1) shall be accompanied with such amount of
fee and payable in such manner as may be prescribed.

(3) On receipt of a complaint made under sub-section (1), the District Forum may, by order,
allow the complaint to be proceeded with or rejected:

Provided that a complaint shall not be rejected under this section unless an opportunity of being
heard has been given to the complainant:

Provided further that the admissibility of the complaint shall ordinarily be decided within
twenty-one days from the date on which the complaint was received.

(4) Where a complaint is allowed to be proceeded with under sub-section (3), the District
Forum may proceed with the complaint in the manner provided under this Act:

Provided that where a complaint has been admitted by the District Forum, it shall not be
transferred to any other court or tribunal or any authority set up by or under any other law for
the time being in force.

Procedure on admission of complaint. — (1) The District Forum shall, on admission of a

complaint, if it relates to any goods,—

refer a copy of the admitted complaint, within twenty-one days from the date of its admission
to the opposite party mentioned in the complaint directing him to give his version of the case

47
within a period of thirty days or such extended period not exceeding fifteen days as may be
granted by the District Forum;

where the opposite party on receipt of a complaint referred to him under clause (a) denies or
disputes the allegations contained in the complaint, or omits or fails to take any action to
represent his case within the time given by the District Forum, the District Forum shall proceed
to settle the consumer dispute in the manner specified in clauses (c) to (g);

(a) where the complaint alleges a defect in the goods which cannot be
determined without proper analysis or test of the goods, the District Forum
shall obtain a sample of the goods from the complainant, seal it and
authenticate it in the manner prescribed and refer the sample so sealed to the
appropriate laboratory along with a direction that such laboratory make an
analysis or test, whichever may be necessary, with a view to finding out
whether such goods suffer from any defect alleged in the complaint or from
any other defect and to report its findings thereon to the District Forum
within a period of forty-five days of the receipt of the reference or within
such extended period as may be granted by the District Forum;
(b) before any sample of the goods is referred to any appropriate laboratory
under clause (c), the District Forum may require the complainant to deposit
to the credit of the Forum such fees as may be specified, for payment to the
appropriate laboratory for carrying out the necessary analysis or test in
relation to the goods in question;
(c) the District Forum shall remit the amount deposited to its credit under clause
(d) to the appropriate laboratory to enable it to carry out the analysis or test
mentioned in clause (c) and on receipt of the report from the appropriate
laboratory, the District Forum shall forward a copy of the report along with
such remarks as the District Forum may feel appropriate to the opposite
party;
(d) if any of the parties disputes the correctness of the findings of the appropriate
laboratory, or disputes the correctness of the methods of analysis or test
adopted by the appropriate laboratory, the District Forum shall require the
opposite party or the complainant to submit in writing his objections in
regard to the report made by the appropriate laboratory;

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 (e) the District Forum shall thereafter give a reasonable opportunity to the
complainant as well as the opposite party of being heard as to the correctness
or otherwise of the report made by the appropriate laboratory and also as to
the objection made in relation thereto under clause (/) and issue an
appropriate order under section 14.

(2) the District Forum shall, if the complaint admitted by it under section 12 relates to
goods in respect of which the procedure specified in sub-section (1) cannot be followed, or if
the complaint relates to any services,—

(a) refer a copy of such complaint to the opposite party directing him to give his
version of the case within a period of thirty days or such extended period
not exceeding fifteen days as may be granted by the District Forum;
(b) where the opposite party, on receipt of a copy of the complaint, referred to
him under clause (a) denies or disputes the allegations contained in the
complaint, or omits or fails to take any action to represent his case within
the time given by the District Forum, the District Forum shall proceed to
settle the consumer dispute,—

(i) on the basis of evidence brought to its notice by the complainant and the opposite party,
where the opposite party denies or disputes the allegations contained in the complaint, or

(ii) ex parte on the basis of evidence brought to its notice by the complainant where the
opposite party omits or fails to take any action to represent his case within the time given by
the Forum.

(c) where the complainant fails to appear on the date of hearing before the District Forum,
the District Forum may either dismiss the complaint for default or decide it on merits.

(3) No proceedings complying with the procedure laid down in subsections [1] and [2] shall
be called in question in any court on the ground that the principles of natural justice have not
been complied with.

(3A) Every complaint shall be heard as expeditiously as possible and endeavour shall be made
to decide the complaint within a period of three months from the date of receipt of notice by
opposite party where the complaint does not require analysis or testing of commodities and
within five months if it requires analysis or testing of commodities:

49
Provided that no adjournment shall be ordinarily granted by the District Forum unless sufficient
cause is shown and the reasons for grant of adjournment have been recorded in writing by the
Forum:

Provided further that the District Forum shall make such orders as to the costs occasioned by
the adjournment as may be provided in the regulations made under this Act.

Provided also that in the event of a complaint being disposed of after the period so specified,
the District Forum shall record in writing, the reasons for the same at the time of disposing of
the said complaint.

(3B) Where during the pendency of any proceeding before the District Forum, it appears to it
necessary, it may pass such interim order as is just and proper in the facts and circumstances
of the case.

(4) For the purposes of this section, the District Forum shall have the same powers as are
vested in a civil court under of the following matters, namely:—(i) the summoning and
enforcing the attendance of any defendant or witness and examining the witness on oath;

(ii) the discovery and production of any document or other material object producible as
evidence;

(iii) the reception of evidence on affidavits;

(iv) the requisitioning of the report of the concerned analysis or test from the appropriate
laboratory or from any other relevant source;

(v) issuing of any commission for the examination of any witness, and

(vi) any other matter which may be prescribed.

(5) Every proceeding before the District Forum shall be deemed to be a judicial proceeding
within the meaning of sections 193 and 228 of the Indian Code (45 of 1860), and the District
Forum shall be deemed to be a civil court for the purposes of section 195, and Chapter XXVI
of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) Where the complainant is a consumer referred to in sub-clause (iv) of clause (b) of sub-
section (1) of section 2, the provisions of rule 8 of Order I of the First Schedule to the Code of
Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference

50
therein to a suit or decree shall be construed as a reference to a complaint or the order of the
District Forum thereon.

(7) In the event of death of a complainant who is a consumer or of the opposite party against
whom the complaint has been filed, the provisions of Order XXII of the First Schedule to the
Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every
reference therein to the plaintiff and the defendant shall be construed as reference to a
complainant or the opposite party, as the case may be.

Finding of the District Forum. — (1) If, after the proceeding conducted under section 13, the
District Forum is satisfied that the goods complained against suffer from any of the defects
specified in the complaint or that any of the allegations contained in the complaint about the
services are proved, it shall issue an order to the opposite party directing him to do one or more
of the following things, namely:—

(a) to remove the defect pointed out by the appropriate laboratory from the
goods in question;
(b) to replace the goods with new goods of similar description which shall be
free from any defect;
(c) to return to the complainant the price, or, as the case may be, the charges
paid by the complainant;
(d) 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 of the opposite party.

Appeal. — Any person aggrieved by an order made by the District Forum may prefer an appeal
against such order to the State Commission within a period of thirty days from the date of the
order, in such form and manner as may be prescribed:Provided that the State Commission 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 finding it within that period.

Provided further that no appeal by a person, who is required to pay any amount in terms of an
order of the District Forum, shall be entertained by the State

51
Commission unless the appellant has deposited in the prescribed manner fifty per cent. of that
amount or twenty-five thousand rupees, whichever is less:

Consumer Disputes Redressal Agencies:

The main purpose of Consumer Protection Act is to provide redressal forum to consumers. For
this purpose following set up has been provided.

(1) District Forum in each district at least one forum will be established but the State Govern-
ment can establish more than one forum in a district.

(2) State Commission for redressal of disputes at State level.

(3) National Consumer Disputes Redressal Commission at all India level.

Role and Powers of District Forums: The Act has laid down in detail the qualifications for
the President and members of the District Forum. The jurisdiction of the District Forum is
within the local limits of the district. The complaint can be filed to the Forum by the consumer
to whom such goods are sold or delivered or agreed to be sold or delivered or such services
provided or agreed to be provided.

The complaint can also be filed by central or state government or by a group of

consumers. Thus it is not necessary that complaint is filed by effected person but matter can be
taken by others also as defined in Section 12.

Procedure of complaint has also been laid down in detail. The District Forums have been
given powers of civil courts for summoning and enforcing the attendance and evidence on
affidavit, discovery and production of any documents, issuing of any commission for the
examination of any witness. The proceedings before the Forum “shall be deemed to be a
judicial proceedings within the meaning of various sections of the Indian Penal Code.

Powers of District Forums:

The District Forums have been given powers to pass verdict which are binding subject
to appeal. After the proceedings conducted if District Forum is satisfied that the goods
complained against suffer from any of the defects specified in the complaint or that any of
allegations contained in the complaint about the services are proved, it shall issue an order to
the opposite party directing him to do one or more of the following things, namely;

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(a) To remove the defect pointed out by the appropriate laboratory from the goods in question;

(b) To replace the goods with new goods of similar description which shall be free from any
defect;

(c) To return to the complaint the price, or, as the case may be, the charges paid by the com-
plaint;

(d) 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 of the opposite party;

(e) To remove the defects or deficiencies in the services in question;

(f) To discontinue the unfair trade practice or the restrictive trade practice or not to repeat them;

(g) Not to offer the hazardous goods for sale;

(h) To withdraw the hazardous goods from being offered for sale;

(i) To provide adequate costs to parties.

It may be observed from the above that the purpose of the verdict is not only to compensate a
particular consumer but to stop such dealings in the future to protect other consumers.

Appeal to State Commission:

Any person aggrieved by an order of the District Forum has been given the right to
appeal to the State Commission within a period of thirty days from the date of order.

Appeal to National Commission:

Second appeal is allowed before the National Commission within 30 days of order of
State Commission but the National Commission can extend the period for appeal beyond 30
days.

Appeal to Supreme Court:

Third appeal is permitted to Supreme Court within 30 days of the order of National
Commission.

Thus ample opportunity has been provided for justice and fair play but if someone does
not comply with the order of District Forum, State Commission or National Commission there
are provisions for strict punishment, including imprisonment. “Such trader or person or

53
complainant shall be punishable with imprisonment for a term which shall be punishable with
imprisonment for a term which shall not be less than one month but which may extend to three
years or with fine which shall not be less than two thousand rupees but which may extend to
ten thousand rupees or both”.

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