LAW OF TORTS
No |
Particulars |
UNIT - I |
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1 |
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2 |
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3 |
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4 |
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5 |
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6 |
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7 |
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8 |
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UNIT - II |
|
9 |
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10 |
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UNIT - III |
|
11 |
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12 |
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13 |
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14 |
|
15 |
Remoteness of damage |
UNIT - IV |
|
16 |
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17 |
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18 |
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19 |
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20 |
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21 |
Torts affecting freedom Malcious prosecution |
22 |
Malcious civil action and Abuse of legal process |
23 |
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24 |
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25 |
Rights to Service |
26 |
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27 |
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28 |
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UNIT - V |
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29 |
UNIT - I
Introduction:
The word 'Tort' is a latin term 'Tortum' which means in its etymological sense 'twisting out' in this sense, it is equivalent to the English word 'wrong'. Thus, it consists of those wrongs or unlawful acts which violate legal rights of a person for which law provides the remedy of unliquidated damages. It is the duty of every person to respect the legal rights of others. If a person violates his legal duty, he does a wrongful act and if by his act an injury is caused to the legal right of a person then the aggrieved person can file a suit against him for damages.
'The Law of Torts in India'
The law of torts as administered in India is the English law as found suitable to Indian conditions and modified by the Acts of Indian legislature. Its origin is linked with the establishment of the British Courts in India. The law of torts was introduced through these British Courts.
The first British Courts established in India were the Mayor's Courts in the three presidency towns of Calcutta, Bombay and madras. These Courts were established in the eighteenth century. Later on these courts were replaced by the Supreme Courts in these three towns, but similar jurisdiction was conferred upon them. The Supreme Courts were superseded by High Courts in those three towns, but the jurisdiction to administer the English common law continued. The law of torts is a branch of English Common law and it was in this manner that the English torts was introduced in the provinces of Madras, Bombay and Calcutta. But Common law so applied by the High Courts of Calcutta, Bombay and Madras is applied only by those Courts in the exercise of their ordinary original civil jurisdiction as distinguished by their appellate jurisdiction, that is, the jurisdiction to hear appeals from subordinate Courts.
"Reasons for slow development of law of torts in India"
In India the process for development of law of torts started very late. The development of this branch of law in India stated simultaneously with the modern scientific development. Large part of the Indian population lives in villages. They are poor and illiterate. They have little knowledge about their legal rights. Those who have some knowledge about these rights are so poor that they do not have courage to go to courts and silently accept the violation of their valuable rights. The cost of litigation in India is very high. Apart from this, the Indian system of justice is very expensive and dilatory. This is one of the biggest obstacles in the growth of law of torts in India. On the other hand, the English system of administration of justice is simple, inexpensive and fast, as a result of which there has been so much development of this branch of law in England and it is still developing.
In brief, the reasons for slow development of the Law of Torts in India may be summarized as follows:
Uncertainty of Law. : It is well known, the Law of Torts is not a codified law and it is still developing. Due to the uncodified law there is no uniformity and certainty in its rules and doctrines.
1. Lack of Political Consciousness. : Due to lack of political consciousness most of the people are not aware of their rights. A large part of Indian population is illiterate.
2. Illiteracy. : The main reason for the ignorance of their rights in due to illiteracy. Large part of the Indian population is illiterate.
3. Poverty. : Poverty is another major factor for the less number of tort cases in India. Most part of the population of India is economically backward.
4. Expensive and dilatory judicial system. : Indian judicial system is very expensive and dilatory. The rate of court fee and the lawyers fee is very high.
It is true that in India the Law of torts has not been completely codified, but this work has not been completely neglected and Indian Parliament has from time to time enacted many Acts in order to make the law clear and definite. The following enactments are worth mentioning -
1. Fatal Accidents Act, 1955
2. Indian Carriers Act, 1865
3. Cattle Trespass Act, 1871
4. Copy right Act, 1957
5. Air (Carriage by Air) Act, 1972
6. Specific Relief Act, 1963
7. Easement Act, 1882
8. Indian patents and Designs Act, 1911
9. Workmen Compensation Act, 1923
10. Sale of Goods Act, 199/30
11. Judicial Officers Protection Act, 1950
12. Patent Act, 1970
13. War Injury (Compensation Insurance) Act, 1943
14. Motor Vehicles Act, 1988
15. Trade and merchandise Act, 1958
16. Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985
In matter of codification, England is far ahead of India and almost sixty percent of the Law of tort has been codified there. The following are the main enactments in England -
1. Fatal Accidents Act, 1955,
2. Carriers Act, 1865,
3. Specific Relief Act, 1877,
4. Easement Act, 1882,
5. Parents and Designs Act, 1911,
6. Workmen's Compensation Act, 1923,
7. Sale of Goods Act, 1930,
8. Children Act, 1871,
9. Cattle Trespass Act, 1971,
10. Patent Act, 1970,
11. Motor Vehicles Act, 1939,
12. Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985
Definition of Torts
The law of torts signifies violation of great variety of rights and duties and so it is very difficult to give a concise and complete definition of it. inspite of this difficulty, many jurists have attempted to give some definition. Some of the leading definitions are follows -
Salmond - According to salmond "A tort is a civil wrong for which the remedy in common law is action for unliquidated damages, and which is not exclusively the breach of a contract or the trust of the breach of other merely equitable obligation.
Fraser - According to Fraser "A tort is an infringement of right of a private individual giving a right of compensation at the suit of the injured party"
Dr. Winfield-According to Dr.Winfield, "Tortious liability arises from breach of duty primarily fixed by the law. This duty is towards persons generally and its breach is redressible by an action for unliquidated damages".
According to Dr.Winfield a tort has the following elements:
1. Breach of duty fixed by law.- Being a member of society a man is bound to observe certain rules made by the society. The basis of majority of these rules is Dharm (generally in English 'religion') for example to give food to a man who is starving, to save a man who is drowning in a river to help such persons it is our social and religious duty, But we are not bound byu law to observe these duties. On the other hand, tortious liability arises from breach of a duty fixed by law.
2. Duty is towards persons generally. - In tort is towards persons generally and not against some particular persons. Law requires every person that he should not publish defamatory statements against any person.
3. Breach of duty is redressible by action for unliquidated damages. - In tort the plaintiff who suffers any harm from the wrongful act of the defendant, can bring an action in the court for unliquidated damages. The amount of damages which an aggrieved person is entitled in tort will be determined by the court.
1. In tort, there is an infringement of private or civil rights of individuals, Crime there is breach of public rights which affect the whole community.
2. In Tort, the action against the wrongdoer is initiated in a civil court, in Crime the Legal proceeding are initiated in a criminal Court.
3. In Tort, the wrongdoer has to compensate to the injured, in crime the criminal is punished by the State in the interest of society.
4. In Tort, the suit for damages is filed in the court against the wrongdoers by the plaintiff himself, in crime proceedings are initiated against the accused by the State.
5. In Tort, the defendant is relieved of liability by paying compensation, in crime the guilty person is punished.
6. In Tort, the main aim is to recompense the plaintiff for the loss suffered by him from the wrongful act of the defendant, in crime the main task is teach him a lesson by punishing the accused so that he may no repeat it in future as well as it becomes an example for others also.
1.3 Contract and Tort
1. In tort, there is a breach of duty which are primarily fixed by law, in Contract there is breach of duty which is fixed by the consent of parties,
2. In tort, there is a violation of a right in term, i.e., A right vested in some determinate person and available against the whole world, a breach of contract is an infringement of a right in personam i.e., A right available only to a some definite person and in which the society has no concern.
3. In tort, the motive for breach of duty is immaterial, breach of contract it is often taken into consideration.
4. In both tort and contract the general remedy is an action for damages. In contract the damages are compensatory and punitive or exemplary. In tort exemplary damages are awarded to punish the defendant.
5. In tort the damages are generally unliquidated and are determined by the court on the facts and circumstances of the case. In contract, the damages are fixed according to the terms and condition of contract.
A tort is a civil wrong for which the remedy is an action for unliquidated damages. Thus the main remedy for a tort is an action for damages. There are other remedies also such as specific restitution of a chattle and in certain cases injunction in addition to damages. But it is an action for unliquidated damages which is an essential characteristics of remedy for a tort. It ismainly the right to damages which brings such wrongful acts within the category of torts. Thus the law of torts is said to be a development of the maxim Ubi jus ibiremedium (there is no wrong without a remedy).
This maxim means that where there is a right there is remedy. That is to say whenever a right is violated the person whose right has been infringed has a remedy against the person who has violated it.
The maxim say that there is no wrong without a remedy, that is to say that whenever some is wronged he is given some remedy. Thus we see that these interpretations means one and the same thing.
This principle has been established for the first time in the leading case of Ashby V. White. Holt, C.J., Allowed the action on the ground that violation of the plaintiff's statutory right was an injury, for which he must have a remedy and was actionable without proof of pecuniary damage. His observations will make the thing clear. He said:
"If he plaintiff has a right he must have as a 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 to imagine a right without a remedy for want of right and want of remedy is reciprocal". However, he noted that the maxim does not mean that there is legal remedy for every moral or political wrong. There is no remedy for a solemn promise made without consideration. A requests B to advance to him a loan of Rs. 1000/- which he former needed for his marriage expenses. B agrees to advance the loan but fails. A has no remedy. There is no remedy for oppressive legislation.
In every tort there is violation of legal rights of another person. Such a violation may be the result of deliberate intention (e.g., An assault) or culpable negligence where the foresight of the consequences is present though they are not directly desired e.g., Reckless driving in a crowded street.
The fundamental principle of criminal law is contained in the maxim actus non facit reun means sitr rea e.g., the act itself creates no guilty mind. The reason for this is not for to seek. The ultimate end of law is to prevent harm by punishing the doer of it. It is clear that it is useless to punish a man rea or a guilty mind is an important element for punishing a man for committing a crime. Here the question is how far mental element is an essential element for determining the tortious liability. In doing any wrongful act, generally the three stages of the human mind are examined which are as follows:
(A) motive
(B) intention
(C) malice
Motive is that state of human mind which inspires him to do an act. A wrongful act is always the result of an inspiration to do an act.
Motive is he ulterior object of purpose for which any act is done. For example, A steal some property of B. Here the immediate object may be to steal the money or property of B. But the ulterior object may be to buy food for him.
Motive is not an essential element in tort. But it is an important element in crime. If an act is lawful then it will not become illegal because it has been done with bad motive.
According to Salmond intention means the object or purpose for which the act is done, in intention, the wrongdoer has full knowledge of the consequences of his act, which he wants to achieve. It is difficult to know the intention with which the act is done. It is a state of mind. Intention can be determined by the conduct of the person who does an act.
Position of Intention in Tort - Intention is irrelevant in law of tort. If a person is injured by the act of the defendant then he will be liable, even though his intention might not be to cause injury to that person. In law of torts, the liability is determined on the ground that every person knows the natural consequences of his act.
In Guille V. Swan (Balloon Case) the defendant flew in a balloon but unfortunately has to embark in the garden of the plaintiff. A huge crowd entered the garden to witness him as a result of which his garden was damaged. The plaintiff sued the defendant for damages. The defendant pleaded that he never intended to harm the plaintiff in such a manner but I happened accidentally. But the Court held that defendant was liable because loss to the plaintiff's garden was the natural consequence of defendant's act as crowd would naturally wish to see the person flying in the balloon. The defendant should foresee the consequence of his act, and it was sufficient that plaintiff had suffered loss.
"Malice in common parlance means ill-will against a person, but in its legal sense it means a wrongful act done intentionally without any just cause or excise".
If I give a perfect stranger a blow likely to produce death. I do it out of malice, because I do it intentionally and without just cause or excuse.
Malice is of two kinds
1. Malice in fact
2. Malice in law
"Malice in law"means an act done wrongfully and without reasonable and probable cause. 'Malice in fact' means improper motive. Motive in the sense is relevant in tort of malicious prosecution.
Importance of Malice in law - Malice in the sense of improper motive is entirely irrelevant in the law of tort.
It generally looks at the actions of a man. It generally does not ask why he has done this. A good motive will not justify an act which is otherwise illegal. On the other hand, a bad motive will not make an act illegal if it is otherwise legal.
The leading case on this point is the case of Bradford Corporation V/s Pickals. In this case the defendant made an excavation on his own ground and thus intercepted the underground water which otherwise (if he had not made the excavations) would have flowed into the adjoining reservoir of the plaintiff. The defendant did so with the motive to compel the defendants to buy his land at a high price. The House of Lords held that the defendant was not liable. He was making a lawful use of his land. Lord macnaghten said, "in such a case motives are immaterial. It is the act, not the motive for the act that must be regarded. It is the act, not the motive for the act that must be regarded.
Exceptions to the rule- In the following cases the malice may become relevant in determining the liability in the law of torts -
1. Malicious Prosecution-In this case the plaintiff has to prove that the defendant started the
2. prosecution proceeding against him with malice and not for any lawful purpose.
3. Injuries falsehood - necessarily the violation of truth for purpose of decoit.
4. Defamation - When the defendant takes the plea of qualified privilege, then motive becomes
5. relevant. But when malice is proved then the defence of qualified privilege will not be available to him.
6. Malicious conspiracy.
7. Nuisance.
4) Malfeasance,
The term 'malfeasance' means the commission of an unlawful act such as which are actionable per se and do not require proof of intention or motive. For example if A enters into the garden of B without his permission or consent it amount to malfeasance. Malfeasance includes wrongs which are actionable per se without proof of negligence or malice.
5) Fault : Whether Essential Element in Tort
According to Salmon 'fault is the basis of all torious liability'. There are areas in the Law of torts where state of mind of a person is relevant to ascertain his liability. For example in assault, battery, false imprisonment, deceit, malicious prosecution and conspiracy, mental element may be necessary to determine his liability. We have to see whether a particular wrongful act was done intentionally or maliciously. In such cases mental elements becomes necessary.
But there arecases where the mental element is quit irrelevant in determining the liability of the wrongdoer. In such cases liability may arise even without any wrongful intention or negligence on the part of the defendant. In such cases the defendant cannot take the plea that he was innocent or there has been an honest mistake on his part.
6) No Fault Liability
Thus there are cases where liability arises without fault for example, cases of Strict Liability and Absolute Liability. In Fletcher the Court has laid down the rule of 'strict liability' - where liability arises without fault. In that case it has been held that the occupier of land who brings and keeps on it anything likely to cause damage if it escapes is bound at his peril to prevent its escape and is liable for the direct consequences of its escape even if he has not been guilty of negligence.
UNIT -II
Acts done in certain special circumstances are not torts, that is, in absence of those circumstances the same act may become a tort. Acts done in such circumstances are known as defences of tort or justification of torts. There are different defences for different torts, for example in case of defamation, the defence of justification of truth. But there are certain general defences which apply in every tort when the plaintiff brings an action gainst the defendant. The defendant may take any of these defences and avoid his liability. The following are the general defences:
1. Volenti non fit injuria
2. Act of God.
3. Inevitable accident
4. Private defence
5. Acts of necessity
6. Mistake
7. Statutory authority
8. Judicial Acts
9. Quasi - Judicial Authority
10. Executive Authority
11. Parental and Quasi - parental authority
12. Exercise of common rights
13. Acts causing slight harms
2.2 A. Volentinon fit injuria
Harm suffered voluntarily by the consent of the plaintiff is not actionable. This principle of law is generally known as volenti non fit injuria i.e., What consented to is not an injury. The consent may be of two kinds-
1) express consent
2) implied consent
a) Express consent - According to Salmond no man can enforce a right which he has voluntarily waived or abandoned. Every man is judge of his own interests. If he voluntarily takes the risk or consents to the harm them he cannot take any action for it.
b) Implied consent - Sometimes the consent may be implied and can be inferred from the conduct of parties. In such cases the plaintiff does not give consent for the injury caused by the act. But he gives consent to a thing to which the injury complained of is incidental. For example, in a game of football, hockey or cricket a player impliedly consents to an injury, which are very common in such games.
In Hall V. Brooklands Auto Racing Club the plaintiff was a spectator was a speaker in the defendant's race club. During the race, there was a collision between two cars and as a result one of the car was thrown on spectators and injured the plaintiff. It was held that the defendant was not liable for the injury caused to the plaintiff as he had impliedly consented to suffer the damage which was incidental to such sports (moto race).
In padmavathi V.Dugganaika, when the driver of a jeep was going to petrol pump for taking petrol two strangers took lift in the jeep. Suddenly on the bolts on the axle of the right front wheel gave way resulting in stopping the jeep. Consequently, the two strangers were thrown out of the jeep and suffered serious injuries and one of them died. It was held that neither the driver of the jeep nor the master of the jeep were liable.
Condition for the application of maxim volentinon fit injuria
The following are the conditions for the application of the maxim volenti non fit injuria-
1. Consent must be free
2. Act must be lawful
3. Maxim is volenti not scienti non fit injuria.
(i) Consent must be free
The defence of volenti non fit injuria will be available to the defendant only when he proves that the plaintiff's consent to the act done by him was obtained voluntarily.
(ii) Act must be lawful
The act to which the plaintiff gives his consent and undertakes to suffer the risk must be lawful and the method of doing it must also be lawful, otherwise even consent will not be a good defence for the defendant.
(iii) Maxim is volenti, not scienti non fit injuria
The maxim is not scienti non fit injuria (knowledge implies consent) but volenti non fit injuria. Mere knowledge does not imply consent to take risk. It is not necessary to prove that the person injured knew of the risk and voluntarily undertook it. Thus if he willingly undertakes to do an act inherently dangerous, he cannot, if he is injured, complain that a wrong has been done to him.
Exceptions to the maxim
In the following cases the maxim valenti fact not fir injuria does not apply-
1. Rescue cases.
2. Under the unfair Contract Terms Act 1977 (England)
1) Rescue Cases - Rescue cases are exceptions to the maxim of volenti non fit injuria. If the plaintiff voluntarily takes a risk to rescue somebody from the danger created by the wrongful act of the defendant, the maxim volenti non fit injuria will not apply and he will have not apply and he will right to bring an action for damages on defendant.
2) Unfair Control Terms Act, 1977 (England) - The rule of Volenti not fit injuria has not been abolished in case of personal injury or harm resulting from negligence. It means that the defendant cannot take the plea that the plaintiff had consented to suffer the risk to his person by a contract. However, in business cases exemption can be granted by contract. Section 2 (1) of the Act provides that a person cannot by reference to any contract tem or to a notice given to persons generally or to particular person exclude or restrict, his liability for negligence except in so far as the term or notice satisfies the requirement to reasonableness. (Clause 2(2)).
B. Act of God.
According to Sir Fredric Pollock "Act of God" is an operation of natural forces so unexpected that no human forces or skill could reasonably be expected to anticipate, it".
According to Salmond "Act of God" includes those acts which a man cannot avoid even by taking reasonable care. Such accidents are the result of natural forces and are unconnected with the agency of man.
Nichols V.Marsh Land is the leading case on the point. In this case, an artificial lake was created on the plaintiff's land due to storage of rain water coming from a natural stream. Once there was an extraordinary heavy rain, which could never have been reasonably anticipated, as result of which the embankments of the lakes burst out and water began to overflow on the plaintiff's land. The flow of water carried away four bridges of the plaintiff. It was held that the defendant was not liable as the loss was caused by the act of God which could not be anticipated by the defendants.
In Rama LingaNadar V. NaryanaReddiar a violet mob looted plaintiff's goods when it was being carried by the defendant's truck it was held that the defendant was liable because the act was not an act of God.
C. Inevitable Accident
According to Sir Fredrick Pollock "Inevitable accidents" are those incidents which a person of ordinary prudence cannot avoid in spite of all reasonable care on his part in the circumstances in which they occur".
In Stanley V. Powell the plaintiffs and the defendants were members of a shooting party. The defendant fired at a pheasant (kind of bird) but unfortunately the shot from his gun hit an oak tree and rebounded and injured the plaintiff. It was held that the injury to plaintiff was the consequence of an inevitable accident and, therefore, the defendant was not liable.
In Holmes V. Mather the defendant's horses driven by his servant in the public highway started and ran away on the barking of a dog and become so unmanageable that inspite of the best care taken by the driver to control them they struck the balcony of the plaintiff's house. The plaintiff who was standing in the balcony was seriously injured. It was held that no action was maintainable by the plaintiff, for, the servant had done his best under the circumstances to control the horses.
D. Private defence.
Every person has the right to protect his property or person and for this purpose he can use necessary force. Thus, if a person uses necessary force to protect his person or property and causes harm to another person, no action can be brought against him.
In Bird V. Holbrook, the defendant had put up spring guns in his garden but he has not fixe any notice to public about this. A trespasser entered his garden and was seriously injured by the automatic discharge of these spring guns. It was held that the plaintiff (trespasser) was entitled to recover damages because the force used in the circumstances was excessive.
In Ramanuj Madawali V. M. Gangan, the defendant had put up lice electric wire on his premises for security purposes but he had not given any notice about the same. When the plaintiff was going to his house through the defendants property at about 10 O'Clock in the night he was seriously injured by electrocution. It was held that the defendant was liable for the damages.
E. Acts of Necessity
This is based on the maxim saluspopulilex - The welfare of the people is the Supreme Law - 'Greatest food of the greatest member' is the main object of this maxim. For this, implied consent is presumed on the part of every person of the society. In time of necessity individual interest is sacrificed. Therefore, damage caused by acts for preventing greater damage is not actionable even though harm is caused intentionally.
F. Mistake
'Ignorance of law is no excuse' is an important maxim in law. It means that mistake, whether of fact or law, is defence to an action for tort. If a person interferes with the rights of another person he cannot take the defence that he honestly believed that there was some justification for the same. Similarly, if one enters upon the land of another thinking that it belongs to him is a trespass.
In Consolidated Company V. Curtis, an auctioneer was given certain goods by his customer for auction. The auctioneer, honestly believing that the goods belonged to the customer, auctioned them and paid the sale proceeds to the customer. But later on it was disclosed that the goods belonged to some other person. The true owner brought an action for the tort of conversion against the auctioneer. The defendant took the plea that he had no knowledge of true owner of goods. It was held that the defendant was liable for the tort of conversion.
G. Statutory Authority
If the damage is caused to a person by an act done under the authority of the Legislature, he cannot bring an action for it. In such cases if there is a provision for compensation in the relevant statute the injured person will get compensation otherwise not. For example, construction of railway lines or running of trains wihtout notice or sparks without interference in the private property of a person is impossible. Thus, no action can be brought for the damage caused by the construction of railway lines and running of trains, provided there had been no negligence in doing such acts.
In Vaugham V. Taff Vale Rly & Co., The respondent railway company had been authorised to run the railway. One day sparks from an engine set fire to the appellants woods which was on the adjoining land and thus great damage was caused to the appellant. It was held that since the respondents had taken proper care in running trains they were not liabe.
H. Judicial Acts.
The Judicial officers, judges, munsifs and magistrates are exempted from any liability for wotk done by them in the discharge of their judicial duties even if they are done with malice, are not done honestly. This exemption is available to all higher and subordinate courts of the country. This exemption is essential to enable the judges to discharge their judicial functions independently and without fear and favour.
I. Quasi Judicial Authority
Under these heading falls the authorities, or bodies like, a club, University, Medical Council. These bodies have power to make their own regulations for running their administration. The power to make rules are delegated to these bodies by the Acts passed by the legislature. The power to make rules and regulations for their own administration is known as quasi judicial authority. Similarly, there are individuals who exercise quasi-judicial authorities. Such individual, institutions and bodies are immune from civil liability and if they follow the principles of natural justice and rules and customs which determine their jurisdiction.
J. Executive Authority
The State and its executive officers are given certain privileges by the Constitution and statutes passed by the legislatures. They can under the exercise of their duties invade certain rights of the individuals without being liable to any damages. No action can be brought against these authorities for any injury done in exercise of their authority.
K. Parental and Quasi Parental Authority
Parents and guardians had an authority to chastise their children. They can also detain the child. A father can stop and close his son into a room for setting him right. A teacher has also this power over his students. Similarly, a guardian of lunatics has power to control him by using reasonable force. The authority of a teacher on his students are like the authority of a father on his son. A teacher can give reasonable punishment to his pupils. A teacher gets this authority from the parents of their pupils when they send their child to a school for study.
L. Exercise of Common Rights
Every person has complete freedom to exercise his common or ordinary rights, every though it may cause damage to others. But the restriction is that the rights must be exercised in good faith and in a lawful manner. This is indeed true because otherwise it will not be possible to carry on the common affairs of life without doing various thing which are more of less likely to cause loss or inconvenience to others. It includes those cases to which the maxim damnum sine injuria applies.
M. Acts Causing Slight Harm
The law does not take account of trifles or an ordinary damage to a person caused by an act of a person. This is based on the maxim de minimis non curatlex which means that (law does not concern itself with trifles). Such acts are not wrongs under the law of torts against which an ordinary prudent person will never complain.
Generally, a man is liable for the wrongs committed b him. But there are certain cases where a person is held liable for a tort committed by another. The word 'vicarious liability' means delegated. Thus the phrase "vicarious liability", means the liability of a person for the tort of another.
Old view
According to old doctrine the liability for torts committed by another is based mainly on the following two maxims:-
1) Qui Facit par AliumFacit per Se.
This means that "a person who does an act through another is deemed in law to do it himself". A master is liable for the torts of his servants on the basis of this doctrine. A person who gets his work done through another is liable for all the consequence form that act.
2) Respondent Superior
This maxim means that the superior must be liable. The master is liable for all such acts of his servants which he does in the course of his employment, as the master is capable of meeting the liability.
The Modern View
Thus, the vicarious liability arises in the following cases -
1. Liability by ratification
2. Liability arising out of special relationship.
1. Liability by ratification
For the purpose that a person can be held liable for a tort by ratification the following three things must be proved -
1. The person who ratifies the act must have full knowledge that the act was tortuous and it must be proved that in ratifying and taking the benefit of the act he meant to take himself, without inquiry, the risk of any irregularity which might have been committed. Whether it was for right and wrong.
2. Only such acts can be ratified which were done at the time on behalf of the principal when the ratifying party must have done the act.
3. Only lawful acts can be ratified which could have been done by the person ratifying the act. Unlawful and illegal acts cannot be ratified.
4. The ratification must be express.
2. Liability arising out of special relationship
This type of liability mainly arises out of the following relationships-
1. Master and servant.
2. Principal and Agent.
3. Firm and its partners.
Liability of Master and Servant.
A master is liable for all acts done by his servant which he does in the course of his employment.
1. There must be relationship of master and servant between the defendant and the person committing the torts.
2. Tortuous acts must have been committed by the servant in the course, of his employment.
(A) Who is a servant?
Traditional Test : Test of control.
A servant be may be defined as any person. Employed by another to do work for him (the employer) on the condition that he (the person employed) is to work under the 'control' and 'direction' of the employer in respect of the manner in which the work is to be done. A master is a person who has the authority to give orders and to bet the work done by his servants. Lord Thankerton has laid down four tests for determining the 'contract of service'. They are:
1. The power of master so select his servant.
2. The power of pay wages or other remuneration.
3. Master's right to control in the method of done the work by the servant.
4. Master's right to suspend and dismiss his servant.
Distinction between servant and independent contractor
The term 'agent' is used for a person employed to do a work for another. So these agents are of two kinds servants and independent contractors. Now, it is important to draw a distinction between these two kids of agents. What is the test for distinguishing servants from independent contractors? The test is whether the employer has right to control the agent in the manner of doing the work. If he has such a control the agent is a servant. A servant is an agent who works under the supervision and the direction of the employer. An independent contractor is his own master. A servant is engaged to obey his master from time to time but an independent contractor is a person engaged to do certain act, but he is to exercise his own discretion as to the mode and manner of doing the act. He is bound by his contract and not his employer's orders.
Thus, my coachman is my servant, I am responsible if he by negligent driving runs over a person. But the raxi driver whom I engage to carry me to market is not my servant and if he runs over a man in the way I will not be liable. The formula, regularly used by courts to mark the distinction between a servant and an independent contractor, is 'control'. The final test lies in the nature and degree of control over the person alleged to be a servant. A person is a servant where the employer retains the control of the actual performance of the work.
In Devinder Singh V.Mangal Singh, Devendar had given his truck for repair to a workshop. When the owner of the workshop was driving the car he hit a bicycle driver and injured him. In an action by the bicycle driver against the owner of the truck for damages it was held that the owner of the truck was not liable for the negligence of the workshop owner as he was an independent contractor. The workshop owner was not the servant of the truck owner and therefore he was not vicariously liable for the negligence of the workshop owner.
In V.J. Acharya V. RatilalPhulchand, Dr. Acharya's can had gone into out of order in the way. He went to a garage owner who sent one of the mechanic along with him for repairing the car. The mechanic tried to drive the car but failed. Thereupon Dr.Acharya gave the key of car to the mechanic and asked him to take the car to the garage and went to his home. The mechanic drove the car for taking it to the garage and due to his negligence the car struck the plaintiff and injured him. It was held that the owner of the car was not liable vicariously for the tort committed by the mechanic as the act of the mechanic was the act of an independent contractor.
Hospital Staff
The courts have often been concerned to decide which members of the hospital staff are servants of the hospital authorities. After much uncertainty, it has now been settled, that radiographers, house-surgeons and assistant medical officers in the full time service are servants. Part time anesthetists have also been held to be servants on the ground that they are members of organization of the hospital.
In Smt. Kalawati V. State of H.P., It has been held that the State is liable for the negligence of the staff of government hospital.
Lending a servant.
The cases are not few when a master lends his servant to another for a certain transaction. Here the servant has two masters for the time being. Now it is to be decided as to who will be responsible for the torts committed by the servant in such case.
Is the real master who is responsible or the person to whom the servant is lent? When a servant has two masters the responsibility for the torts committed by him lies exclusively upon the master for whom and under whose control he was working when he did the work complained of.
Casual delegation of authority
If the master his servant to another for doing an act in which he his own interest but retains the power of control and direction to the servant with him, in such a situation the master will be liable for torts of his servant.
Lending of chattel
Where the master permits his vehicle to be driven by another, but retains the control of the vehicle by his presence, he is liable, the master will also be liable if the vehicle was driven on his request by another for his purpose, ever though he is not in the vehicle and had no immediate control. In such cases the driver acts as an agent of the owner.
(B) The course of employment
Everything depends on whether the servant did act "in the course of the employment". A master is not liable for a wrongful act done by his servant unless it is done in the course of his employment.
A servant is said to have acted in the course of his employment in the following cases -
1. When he does a wrongful act authorized by the master, e.g., if a master engages a servant to assault a man (the master) must be liable for the tort committed by the servant.
2. When he does the act in a wrongful and unauthorised manner, the act authorized by his master.
i) Acts done in a wrongful manner
If a servant does negligently that which he was authorised to do carefully, or if he does fraudulently that which he was authorized to do honestly, or if he does mistakenly that which he was authorised to do correctly, his master will answer for that negligence, fraud or mistake. The driver of a truck drove his truck across a bridge over flooded with water. The force of water swept the truck. In a suit for damages it was held that the owners of the truck were liable.
ii) Authorised limits of time and place.
The conduct of servant is within the scope of his employment only during his authorised period of service or a period which is not unreasonably disconnected form authorised period. Thus a man paid for working until 6 P.M. Who stays on for a few minutes to finish a job will still be within the scope of his employment, but not a man who comes into his employer's premises, without permission during his holiday.
In S.S. Mfg. V.BaiValu Raja, a workman employed in a Salt Works while returning home after finishing his work had to go by a public path, then through a sandy area in the open public and finally across a creek through a ferry boat. The workman while crossing the creek in a public ferry boat cannot be said to be working in the course of his employment.
iii) Detour by a servant
The Court have often been called upon to decide whether a detour by a servant is within the scope of his employment. The classical rule on the subject is "if he was going out of his way, against his master's implied commands when driving oh his master's business he will make his master liable, but if he was going, on a frolic of his own, without being at all one his master's business, the master will not be liable". Whether the detour by the servant is a frolic of his own is clearly a matter of degree. The cases given below will make the matter clear.
In Whatman V. Pearson, a cater was incharge of a horse and cart throughout the day. Without permission of the master he drove them home ½ mile out of his way for his mid day dinner and left the horse unattended outside his home. His employer was held liable for damage done by the horse when it ran away.
iv) Express Prohibition
Often, of course, and employer expressly forbids his servants to do certain acts. But it does not follow from this that an done in defiance of the prohibition is there by placed outside the scope of employment. If it were so, the employers would only have to issue specific orders not to be negligent in order to escape liability for his servants negligence.
v) Giving lift to a third parties
Cases concerning drivers to give lift to third parties are best examples of the acts outside the scope of employment.
Connection with employer's work
Frequently servants do acts which they have no express authority to do but which are nevertheless calculated to further some proper objective of their employer. Unless the means of accomplishing this objective is so outrageous that no employer could reasonably be taken to have contemplated such an act as being within the scope of employment, the employer will be liable for torts thus committed.
Fraud by a servant
The responsibility of a master extends equally to frauds and other willful wrongs of the servant. If the servant does dishonestly what he is employed to do honesty the master must be liable for the fraud.
Servant's private acts : Master not liable
In NaliniranjanSen Gupta V. Calcutta Corporation, the driver was taking the car to a workshop for repairs, when the driver saw that there was blockade in the way and it was not possible to go forward he left the car with the cleaner and went to the workshop. In the absence of the driver the cleaner drove the car and knocked down a street light pole. The court held that the owner was not liable for the negligence of cleaner as the act of the cleaner was outside the course of employment.
In Maharashtra Kanchanmala V. VijayasinghShirke, the fact was that a government jeep was provided for bringing the employees of a government office from their homes of office. One day when the accident took place the jeep was driven by a clerk with the permission of the driver who as in charge of the vehicle and who had consumed liquor. The Supreme Court held that this was a ease where an authorised act was done in an unauthorized manner and, therefore, the State Government was vicariously liable.
Negligence of Servant.
If a master employs a servant it is his duty to see that the servant does the act carefully, and if the servant does the act negligently the master will be liable.
The wrongful act of the servant does not go outside the course of employment simply because it is done by the servant for his own comfort and convenience.
Acts outside the course of employment.
An employer is liable whenever his servant commits tort in the course of his employment even though the servant himself could not be sued; for example where the victim of the servant's negligence is the spouse of the servant. If the act is tortuous, then the master remains vicariously answerable. The reason given for this exemption is that a servant by accepting the service consents to take its risk also, and that these risks include the fault of his fellow servants also. Two conditions must be fulfilled before this rule of exemption from liability is applicable -
1. The servant injured and the servant causing the injury must be fellow servants, i.e., The servants of the same master.
2. At the time of accident, they must have been employed in a common employment.
Fellow servants.- To be the servants of the same master, it is not enough that they were working together and engaged in the same transaction.
Gratuitous Assistance. - The term 'fellow servant' also includes any person who, voluntarily, or at the request of master of servants gratuitously and temporarily assists the servant in his work.
Common Employment. - The second thing necessary for the exemption of the master is the common employment. It is not enough that the plaintiff was a fellow servant with the person by whose mistake he has been injured. It is also necessary that both of them were engaged in a common employment.
The term common employment does not mean that their work must be one and the same. The servants will be said to be in common employment when the works done by them are so connected that if some accident happens in one work, due to the mistake of the worker in conducting his business, there is a corresponding danger in the other work.
Employer's negligence.-A master, although not responsible to his servants for the negligence of the fellow servants is responsible to them for his own negligence. The negligence of the master may consist in -
1. Not using reasonable care in choosing competent and careful servants.
2. Retaining in his service those whom he knows to be habitually negligent.
3. Allowing the premises, plant, or machinery to be in dangerous condition when he knows, or might
4. have known, that they were in dangerous condition.
5. Breach of some absolute statutory duty.
Liability for and independent contractor
An independent contractor, as discussed before, is one who undertakes to do a certain work for another, but as regards the actual execution of the work he is not under the control and supervision of that other person, for example a building contractor.
The employer is not liable merely because an independent contractor commits a tort in the course of his employment. The employer is liable only if he himself is deemed to have committed a tort. An employer is liable for the torts of an independent contractor in the following cases:-
(A) When the principal authorises him to commit a tort
He who instigates or procures another to commit a tort is deemed to have committed the tort himself. In ellis V. Sheffield Gas consumers Co., The defendants, a gas company, proposed to break open a public street without lawful authority. They employed a firm of contractors to dig up a part of the street. The plaintiff fell over a heap doffing. The defendants were held liable on the ground that they had authorised this nuisance.
(B) Ratification
If a person commits a tort while purporting to act on behalf of another, but in fact without his authority, and that other later ratifies the act, which amount to a tort, he thereby becomes answerable for that tort in the same way as if he had given a precedent authority for its commission.
(C) Personal negligence of the principal
The employer is liable where he carelessly appoints an incompetent contractor. Where the risk of the harm, unless precautions are taken, is foreseeable failure by the principal to provide in the contract those precautions is actionable.
(D) Duty Situations
In some categories of negligence the duty to take care is so wide that it is not discharged by properly instructing and supervising a competent contractor. There is a positive duty not to act, even by a contractor without taking due care.
The defendants were held liable. Structural operations damaging neighbouring premises are also within the rule. A 'principal engaging an independent contractor for building purposes cannot escape liabilities if harm is done to the neighbouring premises by negligence of the contractor.
(E) Duty created by contract or statute
If the principal is under an obligation by contract or statute, to do a particular thing, and he employs an independent contractor to do it, he will be liable of the contractor's to do the thing or if he does it improperly.
Vicarious liability of a corporation
On principles of vicarious liability corporations are liable to pay damages for wrongs done by their officers or servants. They are liable even for tort requiring a mental element as an ingredient, e.g., Malicious prosecutions. In India local authorities like municipalities and District Boards have been held responsible for the tort committed by their servants or officers.
The defendant had employed a contractor to
repair the road. In the course of doing the work, the contractor had stored-up
heaps of gravel along the road to a breadth of 9 feet in the road way. No light
has been put on the heap so as to warm passers-by of their existence. The
plaintiff, who rode on his motor cycle, came against the heaps and sustained
personal injuries. He sued the municipality for damages. It was held that the
municipality was liable.
UNIT - III
3.1 Introduction
In the law of Torts, negligence has two meanings:-
1. Negligence as a mode of committing certain tort, e.g., trespass, nuisance or defamation. In this sense negligence involves certain mental elements on the part of the defendant towards the consequences of his act. He intends those consequences.
2. Negligence as an independent tort. In this sense it means a conduct which causes damage without anything in mind. Thus it is conduct rather than a state of mind.
3.2 Definition of Negligence
According to Alderson B :
"Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or dong something which a prudent and reasonable man would not do".
Lord Wright has defined negligence as follows. "In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission it property connotes the complex concept of duty, breach and damages thereby suffered by the person to whom the duty was owing".
According to Winfield "Negligence as a tort is the breach of a legal duty to take care which results in damages.
Essentials of Negligence.
In action for negligence the plaintiff has to prove three essentials to prove the liability of the defendant:
1. A legal duty to take care.
2. Breach of the said duty.
3. Damage to the plaintiff as a result of breach of duty.
1) Duty to take care
Negligence implies absence of intention to cause the harm complained of. It may be defined as unreasonable conduct. To be more concise negligence is breach of legal duty to take care. It is carelessness in a matter in which carefulness is made obligatory by the law. As stated earlier negligence and wrongful intent are two forms of means rea.
Carelessness
A case of wrongful intent is that where the doer foresees the consequences of his action, desires them and therefore acts in such a way that they may happen. On the other land, one is guilty of negligence where one does not desire the consequences nor acts to produce them, but is careless whether they happen or not, and so does not refrain from the act, notwithstanding the fact that there is possibility for the consequences to happen. The willful wrongdoer desire the consequences whereas a negligent person is one who does not sufficiently desire to avoid consequences.
In stansbei V. Troman, a decorator who working in the defendants house went out to fetch wall paper leaving the front door unlocked. The owner of the house as was his custom and his wife were both out and the decorator knew this. When the decorator returned after couple of hours he found that the front door was open and that in his absence some one had entered and stolen from the down stair room jewellery worth 300. It was held that a duty must arise from a relationship and must be within the scope of the constructional relationship existing between the parties, that the contractual relationship in this case did not impose a duty on the decorator to take reasonable care with regard to the state of the premises if he left them during the performance of this work, or at a conclusion of the working day and that this was the measure on the duty. It was further held that in staying out for as long as two hours, keeping the front door open, the decorator was guilty of negligence.
In popatLal Gokaldas Shah V. Ahmedabad Municipal Corporation, The plaintiffs case was that their son aged 21 years went for swimming at swimming pool. He took dive but met with an accident and became serious. He was taken to hospital and ultimately died on the way and declared dead in the hospital. The plaintiffs contended that when plaintiffs son met with an accident the coach of the swimming pool had not taken proper protection and care by giving immediate help and the Corporation did not provide medical help. As a result, their son died. The plaintiffs claimed damages from the Corporation. The Corporation contended that to maintain the swimming pool was a discretionary duty under section 66 of the Act, therefore, it was not liable. The High Court held that the Corporation had failed to discharge duty of care through its servants, the coach towards persons swimming pool and liable in tort. It is true that the swimming pool was maintained by Municipal Corporation under discretionary duty under Section 66 of the Act. The defendent Municipal Corporation is liable to pay Rs. 80,000/- with 9% interest per annum from the date of the suit.
Reasonable foresee ability
Thus the duty to take care depends on reasonable foresee ability of the injury being caused to the plaintiff. If at the time of doing the act or omission the defendant could reasonably for see injury to the plaintiff he owes a duty to prevent that injury and failure to do makes him liable. Duty to take care is the duty to avoid as doing omitting to do anything, the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owned to those to whom injury may reasonably and probably be anticipated if the duty is not observed.
In Barnes V. Hampshire Country Council a five-year old child was released from school 5 minutes early. While going to home he was injured. The usual practice was that the held was to be handed over to the parents at the time of release. The House of Lords held that the school authority were liable for negligence.
2) Duty of care must be owned to the plaintiff
In case of negligence the plaintiff has to prove that the defendant owed a duty to him to take care. Mere carelessness on the part of the defendant cannot be a ground for an action against the defendant unless it is proved that the defendant owed a duty of care to the plaintiff. If the defendant owns no duty of care to the plaintiff the plaintiff cannot take any action against the defendant, even though injury had been caused to him by the act of the defendant in particular.
3) Breach of duty
The breach of duty to take care means not taking due care, which would have been necessary in the special circumstances by the determination of the question whether the defendant has violated his duty to take care or not will depend on the facts and circumstances of each case.
The Standard of care
Care is a matter of degree. It is not sufficient for law to say that it is the duty of a person to take care. It must go a step further and determine the degree and amount of care which is obligatory upon a person. This is to say that the law has fixed the standard of care.
The reasonable care require - The degree of care required by law is that which is reasonable in the circumstances of the particular case. In other words the standard of care is not the foresight and caution which this or that particular man is capable of but the foresight and caution of a prudent or reasonable man.
4) Damage to the Plaintiff
Apart from negligence the plaintiff should also prove that as a result of the negligent act he had suffered damages. If the injury is not the direct and immediate consequence of the negligent act but is remote, the defendant will not be liable.
Kinds of Negligence
It has been seen above that negligence is a breach of duty to take care. The questions whether the defendant's conduct amounts to negligence (breach of duty to use reasonable) is a question of fact and has to be decided with reference to the facts of each case. The degree of care which would be reasonable in different cases cannot be defined. Nor can an exhaustive list of different kinds of negligence be prepared. But some situations are more familiar than others for they arise in everyday life. Constant applications to such occurrences of the rule of reasonable care has resulted in concrete law defining the care required in such cases. We inquire whether the defendant was on the left side or right side of the road. In case of collision we inquire above no exhaustive list of the kings of negligence can be prepared. But the following are some categories where the law has arrived at certain rules about it, some damage might be done to somebody. The employers were, therefore, responsible, but the injured man was not because his mistake which was an error of judgment did not amount to contributory negligence.
Duty of servant to master
Besides the contractual liability, a servant is liable to his master in tort. He has duty to possess a reasonable skill and care in his work. Consequently, a servant is liable in tort for negligence in performing the work resulting in injury or loss to the masters.
Doctrine of res ipsa loquitur.
The rule, that it is for plaintiff to prove negligence and not for the defendant to disprove it, is in some cases one of considerable hardship for the plaintiff. The cases are bit rare where the true cause of accident lies solely in the knowledge of the defendant who caused it. if, in such cases, the burden of proof lies on the head of the plaintiff, the ends of justice would be forfeited. The plaintiff can prove the accident, but he cannot prove how it happened so as to show its origin in the negligence of the defendant. This difficulty is avoided to a large extent by doctrine of res ipsa loquitur. The phrase means, the thing speaks for itself or tells its story, so that in certain cases it is sufficient for the plaintiff to prove the accident and nothing more. In such cases the proof of accident is prima facie evidence of negligence. Maxim of res ipsa loquitur applies when the happening of an accident is improbable without the negligence of the defendant. It was said in Scott V. London and St.KatherineDock Company, "where the thing is shown to be under the management of the defendant or his servant and the accidents is such that, in ordinary course of the thing, it does not happen, if those, who have management use the proper care, it affords the reasonable evidence, in absence of explanation by the defendant, that accident arose from want of care". The facts of the case were as follow: the plaintiff went to the defendant's docks on business and while going from one doorway to another, six bags of sugar which were held by a chain fell on him. It was held that the negligence of the defendant could inferred from the circumstances.
Conditions for application of maxim
There are three requirements which must be satisfied for the application of the rule of res ipsa loquitur -
1. Absence of explanation
2. Improbability of the happening
3. Management and control of object in causing accident in defendant's hand.
1. Absence of explanation -The doctrine of res ipsa loquitur is dependant on the absence of explanation. This merely means that if proof of relevant facts is put before the Court, then there is no room for inference.
2. Improbability of the happening - The Second requirement of the doctrine of res ipsa loquitur is that "the harms must be of such a kind that it does not ordinarily happen if proper care is being taken". The doctrine has been applied to thing falling from building and to accidents resulting from defective machines, apparatus or vehicles.
3. Accident in the exclusive control of defendant - The third requirement of the rule is the "the instrumentality causing the accident must be within the exclusive control of the defendant". The defendant need only have the right of and opportunity to control; actual control is not required.
In Global Motor Service Limited, the accident occurred due to rash and negligent driving of a bus. Due to the high speed the bus went off the road and uprooted the stones on the side of the road and then it dashed against a tree 25 feet away from the road and could be stopped only after covering some distance from the side tree. In the circumstance the Supreme Court held that there was a presumption that the accident had occurred due to the negligence of the driver and not caused by sudden breaking the rear central bolt of the bus and, therefore, the appellants were held to be liable.
3.3 DEFENCES TO NEGLIGENCE
In an action for negligence the defendant can plead: (i) the contributory negligence, (ii) Voluntary assumption of risk and if he succeeds in proving either of them the plaintiff's action would fail.
Contributory Negligence
It often happens that harm is suffered by the plaintiff not solely due to the negligence of the defendant but also due to the negligence of the plaintiff. Cases are not rare where accident takes place by negligence of the persons suffering the injury and of some other person. Suppose A is driving a car on a road on the wrong side, B is driving his car on the same road to the opposite direction at a very high speed. B sees the car of A from a distance but neither stops the car nor lessens the speed. He strikes against A's car and is injured. Here, A and B both were negligent. B has suffered injury not solely due to A's negligence. He has also contributed to it. such cases occur, where though A was negligent, B could have avoided the accident had he been careful. In such cases, the plaintiff is said to be guilty of contributory negligence and is generally debarred from any action. A person whose injury is a result of his own negligence as well as that of another, may loose his right to recover compensation from the latter.
At common law it is a complete defence if the defendant proves that the plaintiff was guilty of contributory negligence.
a) Risk- It is a requirement which may be compared with the rule that the plaintiff, in an action based on negligence, must prove that the risk which in fact materialises is the one which the defendant was under a duty to guard against. Here the defendant must show that the harm sustained by the plaintiff belongs to that general class of perils to which he subjected himself by his negligent conduct.
b) The negligence was contributory - The key to the proper understanding of the development of the case law on the subject is the full appreciation of the seriousness of a rule which deprives the plaintiff of a remedy if he himself were guilty of any fault, however slight, contributing to the damage which he suffered. But if the plaintiff was negligent but his negligence was not a cause operating to produce the damage, there would be no defence.
c) Plaintiff Negligence -In order to take up this defence the defendant need not prove that the plaintiff owed him a duty to take care. All that is necessary to establish such a defence is to prove to the satisfaction of jury that the injured party did not, in his own interest, take reasonable care of himself and contributed by this want of care to his own injury.
Plaintiff's negligence a bar to his action
The plaintiff's negligence would bar his remedy in two ways:
1. Where the negligence of the plaintiff is subsequent to that of the defendant and separate from it; and
2. Where the defendant could not avoid the accident.
Plaintiff's negligence not avoidable by the defendant -Such cases arise where the simultaneous negligence of both the parties create a situation in which neither can be held responsible for not avoiding the accident.
Plaintiff's negligence not a bar to his actions
The plaintiff can get damages inspite of his own negligence if he is able to prove that the defendant could have avoided the accident had he taken care. Negligence as a tort is breach of legal duty to take care. The theory of contributory negligence is not the special branch of law.
Contributory negligence of the children
If a plaintiff is a child or other persons under some form of personal disability, it is enough if he shows as much care as a person of that kind may reasonably show. He will not lose his remedy simply because a person of full capacity might, by using come care, have avoided the accident.
Thus in Lynch v. Nurdin, the defendant left his care and horse unattended, negligently in a street. The plaintiff aged 7 years climbed into it. another boy drove the horse. The plaintiff fell down and was injured. It was held that the defendant was liable because no one can expect better care from a child of 7 years. Let us take one more case.
The Rule in Rylands v.Fletcher:-In this case the House of Lords have laid down the rule that a person who, in the course of non-natural user of his land is or is deemed to be, responsible for the accumulation on it of anything likely to do harm if it escapes, is liable for the interference with the use of the land of another which results from the escape at the thing from his land. This is known as the rule in Rylands v. Fletcher.
The facts of the case were that the plaintiff was a lessee of a mine. The defendant owned a mill in the land adjacent to the land under which the mines were worked. The defendant employed competent persons to construct a tank on this land. The plaintiff had worked his mines up to a spot where there were disused and filled up passages of an old mine. These passages were connected with vertical shafts. Hence it flowed into the old passages and reached the plaintiff's mine and flooded it. it was held that the defendants were liable although they were guilty of no negligence either by themselves or by their servants.
The Rule
The said rule is simmarised by Blackburn J., thus
".... the true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequences of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default, or perhaps, that the escape was the consequences of vis major, or the act of God; but, as nothing of this short exists here, it is unnecessary to inquire what excuse would be sufficient"...
Essential Elements
There are two essential elements for the application of the rule:
1. Escape of things from defendant's land.
2. Non-natural use of land.
a) Escape of things from defendant's land.
The rule laid down in Rylands v. Fletcher applies only when the things causing damage to the plaintiff must escape from the land in the occupation and control of the defendant. "Escape", for the purpose of application of the rule in Rylands v. Fletcher means escape form a place which is outside his occupation or control.
b) Non-natural use of land.
The defendant is only answerable, in bringing the thing there, he is making a non-natural use of his land. In Richards v. Lothian it was said "It must be some special use bringing with it increase danger to others and must not merely be the ordinary use of the land on such a use as is proper for the general benefit of the community".
Defences
The rule of strict liability does not apply in the following circumstances:-
1. Natural use of thing
2. Act of God
3. Act of a stranger
4. Common Benefit
5. Consent of plaintiff
6. Mistake of plaintiff
7. Statutory Authority
1) Natural use of thing
This rule applies to things artificially brought on the land. Even in case of things which are brought artificially the question arises whether the defendant is liable to his neighbours if he had kept those things for natural use?
2) Act of God.
The expression "Act of God" is a mere short way of expressing the proposition that a defendant is not liable for any accident as to which he can show that it is due to the natural causes directly and exclusively without human intervention and that it could not have been prevented by any amount of foresight pains and care reasonably to be expected from him. This tern signifies, such as, operations of natural forces as tempest or extra-ordinary rainfall and flood. The defendant can put forth the excuse that the escape of the thing was due to the act of God.
3) Act of third stranger.
The defendant is not held liable for the escape of a thing if the escape is caused by a third person without the knowledge or authority of the defendant provided he (defendant) is not negligent and has not committed a breach of duty to take the necessary precaution against the interference of strangers.
4) Common benefit.
If the dangerous thing has been brought on the defendants land for the common benefit of both the plaintiff and the defendant, the defendant will not be liable for harm caused by the escape of such things provided that there had been no negligence on the part of the defendant.
5) Consent of the plaintiff.
The rule in Rylands v. Fletcher is not applicable in the cases where the thing (which escapes) was brought are kept upon his (defendant's) premises by the defendant with the consent of the plaintiff. Implied consent will also be a defence.
6) Mistake of plaintiff.
If the plaintiff, in spite of knowledge of danger, does not take care he cannot bring an action for damage against the defendant.
7) Statutory authority.
Sometimes public bodies storing water, gas, electricity and the like are by statute exempted from liability, so long as they prove that they have taken to reasonable care. Where the defendant acted in pursuance of special statutory authority in placing the dangerous thing on the land from which it escaped, the rule is not applicable.
3.5 Rule of absolute liability
Rule in M.C. Mehta V. Union of India-Modern Test.
The new rule of strict liability has been laid down by the Supreme Court of India in the case of M.C.Mehta V. Union of India. This new rule is harsher than the rule as laid down in Ryland v. Fletcher. This is known as the rule of Absolute Liability.
The court has held that the rule of Ryland v. Fletcher which was laid down in the 19th century did not fully meet the needs of a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries were necessary to be carried on as part of the development programme. Therefore it was necessary to lay down a new rule not yet recognised law, to adequately deal with the problem arising in a highly industrialised Economy.
"Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity, for example, escape of toxic gas. The enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-avis the tortuous principle of strict liability under the rule in Ryland v. Fletcher".
The Court pointed out that rule laid down in the M.C.Mehta's case is different from the rule in Ryland v. Fletcher as this rule does not recognise any exceptions, while the rule of Ryland v. Fletcher is subject to a number of exceptions. Under the new rule the duty is "absolute and non-delegable" and the enterprise cannot escape liability by showing that it has taken all reasonable care and there has been no negligence on its part. The basis of the rule is thus as follows -
1. If an enterprise is permitted to carry on a hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads, and
2. The enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards.
In this case one of the units of a factory Shri Ram Foods and Fertilizer Industries was manufacturing oleum gas. The unit was situated in a residential locality of Delhi. There was escape oleum gas from the factory on December 4 and 6, 1985 resulting in death of an advocate and seriously affecting several others. The Delhi Legal Aid and Advice Board and the Delhi Bar Association filed a writ by way of public interest litigation in the Supreme Court under Article 32 of the Constitution for compensation and requesting the Court to restrain the company to restart production of gas as it was likely to create danger to persons living in the adjoining areas and also the workers in the factory.
The Supreme Court held that the rule laid down in the 19th century cannot afford any guidance in evolving any standards of liability in consistent with the needs of the present day economy and social structure. The Indian courts can evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialised economy. In view of this, the court has laid down of this, the court has laid more stringent rule of absolute liability in place of simple rule of strict liability as it is necessary to deal with the problems which arise in a highly industrialized economy. In view of this, the court has laid down more stringent rule of absolute liability in place of simple rule of strict liability as it is necessary to deal with the problems of modern industrialized society. The Court held that the defendant Shri Ram Foods Fertiliser Company, form which there was escape of poisonous gas, was liable to pay compensation to all injured persons, even though there had been no negligence on its part. The defendant company cannot be absolved from the liability by pleading defence of any of the exception of Rylands v. Fletcher.
M.C.Metha's case applies in a case where the defendant is carrying on a hazardous or inherently dangerous activity and harm is caused to a person on account of an accident in the operation of such hazardous or inherently dangerous activity.
The new rule applies in both the situations whether the persons suffer harm within the premises or outside. The premises as the escape of thing causing harm is not, a necessary condition for the applicability of the rule.
M.C.Metha's case applies the court and award exemplary damages and if the enterprise is large and more prosperous the amount or damages payable by it will also be greater.
Bhopal Gas Leak Disaster
On the night of December 13, 1984 the most tragic industrial disaster occurred in which thousands of persons died and suffered various kings of injuries and diseases. This tragedy occurred as a result t leakage of Methyl Isocyanate (MIC) a highly tragic gas, from a plant established by the Union Carbide India Limited (UCIR) for manufacture of pesticides etc. in Bhopal UCIL which is subsidiary of a multinational. Union Carbide Corporation (UCC) registered in USA. This tragedy led to the urgent need to provide compensation to the such a large member of victims. On behalf of victims a large number of cases were filed in Bhopal and also in USA against the UCC.
The multiplicity of suits and question of jurisdiction created lot of controversy. In order to solve this problem to provide speedy disposal of claims for compensation the Government of India enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, to confer certain powers on the Central Government to secure that claims arising out of, or connected with the Bhopal Gas leak disaster are dealt with speed, effectively equitably and to the best advantage of the claimant and for matters incidental thereto.
Section 3 of the Act confers on the Central Government the exclusive right to represent and act in place of every person who has made or is entitled to make a claim for all purpose connected with such claims in the same manner and to the same effect as such person.
In exercise of its powers conferred on at under Section 3 of the Act the Union of India filed a suit on behalf of all the claimants in the United States District Court of New York. Some of the suits which were earlier filed in U.S.A by some lawyers were superseded and consolidated in the above suits filed by the Government of India. The Union Carbide Company contended for the dismissal of suits on the grounds of forum non convenience, i.e., the suit can be more conveniently tried in Indian Courts.
After the dismissal of the suit in America, the Union of India filed a suit in the District Court Bhopal.
The District Judge Bhopal ordered the UCC to pay Rs. 350 crores by way of interim relief to the gas victims. The UCC filed a revision-petition in the Madhya Pradesh High Court against the order the Bhopal District Court.
Accordingly, Seth. J. of the Madhya Pradesh High Court, who considered the revision petition of the UCC held that the UCC, was absolutely liable for the disaster on the principles laid down in M.C. Metha v. Union of India and therefore liable to pay compensation to gas victims. The Judge, However, reduced the quantum of interim compensation payable from Rs.350 Crores to 250 crores.
The UCC filed an appeal in the Supreme Court against the order of High Court the Supreme Court ordered the parties to settle the matter with a view to provide "immediate and substantial relief to victims" on the following terms:
1. The UCC shall pay a sum of U.S. Dollars 470 millionsapproximately Rs.750 crores to the Union of India in full settlement of claims rights, and liabilities related to the arising out of the Bhopal Gas Disaster.
2. All civil proceedings arising out of the Bhopal Gas Disaster shall stand concluded in terms of the settlement and criminal proceedings relating to the arising out of the disaster stand quashed wherever these may be pending.
3.6 Definition of Nuisance
According to Stephen "Nuisance has been defined to be anything done to hurt or annoyance of the lands, tenements or here-ditaments to another not amounting other to trespass".
According to Dr. Winfield nuisance "is an unlawful interference with persons use or employment of land, or of some right over or in connection with it."
Nuisance has been defined as on injury to the right of a person in possession of property to undisturbed enjoyment of it and results from an improper use by another person of his own property.
In the examples given above the persons causing discomfort to other have not entered the property of the others. They have only used their own property in such away that the have disturbed others in the peaceful enjoyments of their own property. This covers interference with use and enjoyments of land by (coming of) water, fire, smoke, smell, fume, gas, noise, heat, electricity, disease or any other like things (from the land of another) which may cause such an inconvenience.
3.7 Kinds of Nuisance
Nuisance is of two kinds -
1. Public Nuisance.
2. Private Nuisance
1) Public Nuisance
A public or common nuisance is an injury, danger or annoyance to the public generally and an offence against public rights safely and convenience. Any nuisance is public which materially affects the reasonable comfort and convenience of life of a class of subject.
It is not necessary to prove that every member of the class has been injuriously affected. It is sufficient to show that representative section of the class has been so affected.
Under Section 268 of the Indian Penal Code public nuisance is a crime. Section 268 defines public nuisance as an act of illegal omission which causes any common nuisance, injury, danger or annoyance to persons who may have occasion to use any public right.
Thus public nuisance is an act which affects the public at large, or considerable portion of it and it must interfere with the rights of the large members of community. Acts which seriously interfere with the health, safety comfort or convenience of the public interfere with the health, safety comfort or convenience of the public generally or which tend to degrade morals have always been considered public nuisance, e.g., digging a pit or creating obstruction, erecting a wall on pblic road, carrying trade causing offensive smell, creating loud noises, keeping inflammable substance in large quantities, drawing water from a filthy source.
In Rose v. Milas the defendant had stationed his boat in a narrow stream of a river. Due to this obstruction, the plaintiff could not take his boat to the ferry and had to spent a more money on loading and unloading of goods through land. It was held that the plaintiff entitled to bring the action because he had suffered more damage than that suffered by others.
Interference with the use or enjoyment of land
In this case the interference is the two kings-
1. injury to the property; or
2. injury to comfort and health of property
2) Private nuisance
A private nuisance is, on the other hand, an injury to the private rights of a person and to the comfortable occupation of his property.
Winfield defines Private nuisances as unlawful interference with a person's use or enjoyment of lands, or some right over, or in connection with it.
Thus we may define private nuisance as follows : (a) private nuisance is some unauthorised user of a man's own property causing damage to property of another or some unauthorised interference with the property of another causing damage.
Difference between private and public nuisance
Private nuisance is an injury to an individual in particular whereas a public nuisance is an injury to the public in general. Public nuisance is a crime covering a many kings of interferences with rights of the public at large e.g., brothel-keeping, obstructing public highways, selling impure food and so on.
In a private nuisance an action for dangers lies. The person whose comfortable enjoyment of properties is disturbed may file a suit in a civil court for damages or for injunction. The commission of a public nuisance is not tortuous unless an individual proves that he has suffered particular damage beyond that suffered by the rest of the community.
A Private nuisance may be abated (done away with) by one who is inconvenienced by it, a public nuisance cannot be abated by an individual extent to which it causes some special damage to the person who desires to abate it.
A private nuisance may become legal by prescription i.e., continuous and unobstructed existence for 20 years. On the contrary a public nuisance cannot be legalized after any length of time and so a man who keeps a game house for gamblers for 20 or for any larger number of years cannot acquire any right for keeping it. At any time be may be published or the work may be stopped by the government authorities.
In private nuisance the plaintiff must prove interference with his enjoyment of land, whereas claims based on public nuisance are not necessarily linked with the user of land.
Public nuisance is regarded as criminal offence in India. Chapter 14 of Indian Penal Code provides for the punishment of the public nuisance such as spreading of infection, fouling water, making atmosphere noxious to health, adulteration of food, drinks and drugs and so on. In Chapter 10 the Criminal Procedure Code makes a provision for removal of public nuisance. This chapter includes Section 133 to 140.
Essentials of Nuisance
In an action for nuisance the plaintiff has to prove against the defendant the following things:
1. Unlawful interference
2. Interference with the use or enjoyment of land
3. Damage.
(1) Unlawful interference
Every harm to a person's property or interference with his personal comfort or health does not constitutes a nuisance. To constitute nuisance the interference should be unreasonable. Every person has to bear with some noise, some vibrations, some smell etc. in the society so that other's can enjoy their own rights. It is only such noise which is unreasonable that becomes unlawful. No action can be brought unless the nuisance is unreasonable.
Test of reasonableness
Causing of dangerous things to escape.
The dangerous things such as smoke, smell, noise, electricity, water and noxious vegetation and things like them, by escape, cause injuries to the properties of others.
(2) Interference with the use or enjoyment of land
In this kind of tort some damage is done to the property of the plaintiff something which is situate on the land of the defendant. If for example the defendant sets up vibrations which cause the building of the plaintiff to collapse, or, if the fumes emitted from his factory destroy vegetation of the plaintiff he might be committing an actionable an actionable private nuisance.
(a) Injury to physical comfort
While liability of injury of person or property may arise in other modes than in nuisance e.g., battery, trespass disturbance of the comforts is actionable only as a nuisance.
(b) Interference must be substantial
The interference with a person's comfort must be of substantial interference with an ordinary and reasonable standard of comfort, and considered in the light of the circumstances time and place.
(3) Damage
Nuisance is not actionable per se and actual damage must be proved by the plaintiff subject to the following exceptions:
Where on the facts, damage can be readily presumed, this presumption of damage will suffice. If a house is built so that one of the cornices projects over the land of the plaintiff it may be presumed that damage will be caused to the land of the plaintiff rain-water dripping from the cornice on the land.
Who can sue for nuisance
A plaintiff can sure for nuisance only if he has an interest in the land affected. A plaintiff who has no legal or equitable interest in the land cannot sure for nuisance.
The occupier:- The only fact that the plaintiff has an interest in the property will not title him to bring an action for nuisance. Nuisance is actionable only by the person who is in possession of it and is injuriously affected by it.
The owner:- An owner of property who is not himself in occupation of it cannot maintain a suit for nuisance unless the nuisance is such : (i) as to have caused actual damage to his property as for instance where machinery is said to be a nuisance and vibration, caused by it have produced cracks in the building of the plaintiff; (ii) if the nuisance is suffered to continue, the person causing it many acquire by prescription a right to continue it. Where the plaintiff whose house is in existence for a considerable time asserts that the latrine in the recently constructed contiguous house of the defendant is a nuisance owing to the bad smell offending the nose of the tenant in occupation of the house, the case does not come within either of the above exceptions and the plaintiff cannot maintain a suit for removal of the nuisance.
A reversioners :-A reversioner can sue for a nuisance if he, like an owner proves that his interest in the land has been interfered with. This usually means that if he proves harm of a permanent character e.g., blocking of lights by a building, he will succeed.
Defences
A defendant in an action for nuisance may take up the following defences:
1. Grant.
2. Prescription
3. Statutory Authority.
1) Grant:- When the defendant had right under the terms of a contract to do an act of nuisance, no action can be brought against him.
2) Prescription:- A right to commit a private nuisance may be acquired as an easement by prescription. So a person may be 20 year's user gain right to pour foul water into another's stream. It must be borne in mind that it is not sufficient for the defendant to prove that the act which now causes the nuisance has been continued for 20 years.
3) Statutory Authority:- When a statute specially authorizes a certain act to be done which would otherwise be a actionable, on action will lie. When certain acts are so authorized by statutes its necessary consequences are also authorized. It may be questioned now as to what are the necessary consequences of an act, and the answer to it is not far to seek. All those consequences which cannot be avoided by th use of due care and skill care the necessary consequences.
Remedies
In a tort of nuisance following remedies are available to the persons wronged:-
In case of Public Nuisance the following remedies are available:-
1. Under the Criminal law
2. Under the civil law.
1) Under the Criminal law
Under Section 268 of the Indian Penal Code. Public Nuisance is a crime. According to this section a person is guilty of public nuisance who does any act, or is guilty of an illegal omission, which causes any common injury, danger or annoyance to the public or to the people in general who dwell, or occupy property, in the vicinity or which must necessarily cause injure, obstruction danger or annoyance to persons who have occasion to use any public right.
2) Under the civil law
Under Section 91 of the Civil Procedure Code in the case of a public nuisance the Advocate General, or two or more persons having obtained, the consent in writing of the Advocate General may institute a suit though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case.
In case of a private nuisance the plaintiff has the following remedies:-
1. Abatement
2. Damages
3. Injunction
1. Abatement
A person injured by a nuisance may abate it. That is to say, he may remove that which causes the nuisance.
1. In the abatement of nuisance unnecessary damages must not be done, that is to say, the person complaining of the nuisance must not do more damage to the property of others than is necessarily required in removing the nuisance.
2. Where there are more than one way of abating a nuisance the least mischievous one should be preferred.
3. In order remove a nuisance one must not enter upon the land of third person who is innocent.
2. Damages.
The person complaining of a nuisance may file a suit for damages. As nuisance is concerned with interference with use of land, damages are measured in the light of depreciation in value of land caused by the defendant's act.
3. Injunction
A person complaining of a nuisance may sue for restraining the defendant from using his property in such a way as not to cause nuisance. The plaintiff may seek both damages and injunction.
Public Nuisance Actionable as tort
As discussed about a public nuisance is almost a species of criminal offence and a criminal prosecution is remedy for it; besides prosecution the Advocate-General may file a civil suit for public nuisance or two or more persons of the public having obtained the consent in writing of for such other relief as may be appropriate to the circumstances.
As stated above a nuisance to a highway consists either in obstructing in or rendering passage along it unsafe.
1. Obstruction of Highway
Examples of this tort stopping a highway by erecting a fence across it; narrowing it by a fence, causing crowds or vehicle to block the highway or building which projects beyond the boundary line; leaving horses and carts or motor vehicles in it for an unreasonable time or in unreasonable number making excavation or erection in it without lawful authority.
2. Dangerous to Highway
This may be caused either by something done in the highway itself by something done on the land which adjoins it.
An unlighted fence, structure, excavation, a horse and carriage unattended, or heap of stones left in the highway are the instances of doing something in the highway. The other examples are keeping in the highway defective and dangerous tramway line, coal-plates, or seller granting and leaving on the highway matter or which passengers are likely to slip.
Special damage must be proved
As discussed above nuisance to a highway is not per se actionable at the suit of a private individual. No such action will lie except at the suit of a person who can show special and particular damage suffered by himself and distinct from the general inconvenience suffered by him in common with the public at large.
The special or particular damage which must be proved includes injury to the plaintiff's person, wife, servants, chattels, depreciation of actual value of property and also of custom.
1. Injury to person :- In Castle v. St. Augustine Linus, a taxi car driver who had lost his eye by a ill hit golf ball recovered damages from the golf club whose hole was so near the highway and amounted nuisance.
2. Injury to pecuniary interests:- This may occur when the plaintiff has incurred expenses or suffered pecuniary loss by being prevented from using the highway.
Liability for the non-repair of roads.
No action will lie against any authority entrusted with the care of highway for damages suffered in consequences of the omission of the defendants to perform their statutory duty of keeping the highway in repair.
The remedies available to a person who is victim of tort are of two kinds:-
1. Judicial Remedies.
2. Extera-judicial Remedies.
1. Damages.
Damages are primary remedy in an action for tort. Damages are the pecuniary compensation which is given to a person for the injury he suffers for the infringement of his rights. If a person sustains injury by the wrongful act of another, he may being a suit for damages in a court, and the court after being satisfied that his legal rights has been infringed by the defendant, may award damages to the plaintiff .
Kinds of Damages
There are four kinds of Damages-
1. Nominal Damages.
2. Substantial of Real Damages.
3. Contemptuous Damages.
4. Exemplary or Punitive Damage.
5. General and Special Damages.
6. Prospective and continuous Damages.
1) Nominal Damages.
Nominal Damages are given not as a compensation for injury or damage to the plaintiff but for the recognition of a legal right vested in the plaintiff which is violated by the defendant. Nominal damages are given only in respect of torts actionable Per se. The amount of damages are very small for example Rs.1. In Ashy V.White,
2) Substantial of Real Damages.
This kind of Damages are given to the plaintiff for the actual damage suffered by him as a compensation for the loss caused to the plaintiff. It is also known as compensatory damages. In such cases amount which are determined as damages is as far as possible, very near to the amount which brings the plaintiff in the same situation in which he was before the injury was caused to him.
3) Contemptuous Damage.
These are (trifling) damages, as the Courts forms very low opinion of plaintiff's claim or is of opinion that the case is such that it should not have been brought before the Court. They are awarded in an action for libel. Sometimes the plaintiff suffers great damage but because of his conduct he fails to prove that he is entitled to some substantial damage. For example, if plaintiff beats the defendant because he had used some derogatory words against him, his claim because very weak and he is awarded only contemptuous damages.
4) Exemplary or punitive damage
Such damages are awarded in cases where tort is committed intentionally or maliciously. Its main aim is not to award compensation to the plaintiff but to punish the defendant so that it may deter him as well others from repeating the same behaviour in future. Compensatory damages are awarded as compensation for the material loss suffered by the plaintiff which can be easily measured.
In Rookes V.Barnard the House of Lords has held that exemplary damaged can be awarded in the following three kinds of cases -
1. where injury is caused by the illegal, arbitrary and painful conduct of government servants.
2. where the defendant's conduct is to make a benefit for himself which far exceeds the compensation
payable to the plaintiff.
3. where there is some provision in the statute for awarding damages.
5) General and special damages.
'General Damages' are such damages as law will presume to have resulted form the defendant's tort. It generally happens where legal rights of the plaintiff is violated by the defendant. For this it is not necessary that the plaintiff should plead in his suit in the court. 'Special Damages' are such loss as will not be presumed by law. Therefore they must be specially claimed by the plaintiff in his pleadings. For instance, in personal injury cases reasonable expenses for medical treatment, wages already lost, are special damages, but losses of future earnings are general damages. If the plaintiff does not mention those things in his pleading them he will not be awarded does not mention those things in his pleading then he will not be awarded any damages. In awarding special damages the Court will consider various aspects of injury, such as, bodily injury, loss and pain, loss of expectancy of life, loss of amenities.
6) Prospective and continuous damages.
Prospective damages is that amount which may be the likely consequence of the defendant, tortuous act, but have not materialized till the decision of the case. For example, if a person is injured in an accident and becomes lame then the damages is awarded not only up to the time of the initiation of the proceedings but as well as damages for future injuries. Subhas Chandra V. Ram Singh, the appellant, a seven-year old boy, was permanently incapacitated in an accident and was incapable of doing certain acts due to his artificial legs. The Motor Accident Claims Tribunal awarded him Rs. 3,000/- damages for prospective damages for his incapacity in future which was subsequently increased to Rs. 75,000/- by the Delhi High Court.
Exception to the above rule. - The rule propounded in Fitter V. Beale that "more than one action will not lie on the same cause of action" has the following exceptions. In other words, in the following circumstances damage resulting from one cause of action, can be recovered by successive action, they are:
1. Where same wrongful act violates two distinct rights.- where the same wrongful act violates two distinct rights, successive actions may be brought in respect of each of them. If a person sustains two kinds of injuries from one blow, for example, if it breaks his arm and his watch he can bring two distinct actions one for injury to his person, and another to his property.
2. Where two distinct acts violate the same right.- where the plaintiff violates the same right by two distinct acts, a separate action will lie for each wrongful acts. For example, if the same libel is published against two or more persons at different times, a separate action can be brought for each publication.
3. Where the cause of action is a continuing one.- When the cause of action is a continuing separate actions can be brought for each unlawful act causing fresh damages. Continuing cause of action arises when the acts or omission of the same kind, is repeated again and again. For example, in trespass a fresh cause of action arises every time so long the trespass is continuing. In such a case the plaintiff can bring fresh action.
4. Successive actions on same facts.- If one and the same act produces two different heads of damages, but does not give rise to separate cause of action. For example, if as a consequence of publication of a libel by 'A' against 'B', 'C' dismisses 'B' from service and subsequently he is also dismissed from service by 'D', separate action can be brought against 'A' for each damage.
Damage for personal injuries
The task of determining the amount of compensation for personal injuries is difficult. Personal injuries may be of two kinds:
(1) non-pecuniary loss and (2) pecuniary loss.
(1) Plain and sufferings; (2) loss of amenities, and (3) loss of expectation of the life pecuniary loss includes the following heads of damages - (1) consequential expenses, (2) cost of care and (3) loss of earnings.
Non-pecuniary losses. -
1. Plain and suffering
2. Loss of expectation of life
1) Plain and suffering.- If as a result of defendant's negligent act pain and suffering is caused to the person he shall be entitled to compensation. It may include plain attributable to medical treatment for the injury. It includes present and future plain and suffering.
2) Loss of expectation of life.- In order to determine damages the court has consider the question whether due to the injury caused by the tortuous act of the defendant plaintiff expectation of life has been shortened. Bodily injury may be of such type which may weaken plaintiff's hope of future life or there may be no hope of his survival. For every healthy person it is hoped that he will remain alive up to a fixed duration. This is known as expectancy of life.
Pecuniary losses.
This includes the following heads of losses -
1. Loss of Earning capacity.
2. Medical expenses.
3. Right to interest on Damages.
1) Loss of Earning capacity.- It as a result of injury there is loss of earning or earning capacity comes under the category of 'special damage' and is awarded for the period of loss of earning capacity and up to the time of filing the suit for damages.
2) Medical expenses.- The plaintiff is entitled to reasonable medical expenses which he has to incur as result of bodily injuries. This includes both present medical expenses and future medical expenses. It also includes expenses for taking the plaintiff to a hospital, for purchasing medicines and equipments required for his treatment, fees of private doctors and similar other expenses.
3) Right to interest on Damages. - Both in England and as well as in India interest on damages are awarded to the plaintiff. In England interest on non-pecuniary loss is awarded at the rate of 2% from the date of filing the suit up to the date of judgment. In India, the practice is that the interest is given from the date of filing of suit. At present, practice in India is to award interest at the rate of 12% from the date of filing of the suit which is payable on the total amount of compensation.
2. Injunctions. -
Injunctions is an order of the Court restraining, the commission, repetition, or continuance of a wrongful act by the defendant. In order to get this remedy the plaintiff must prove either damage or apprehended damage. An apprehended damage must involve imminent danger of a substantial kind or injury which will be irreparable. Thus an injunction is a precautionary remedy to restrain imminent danger or wrongful act.
In India, the law relating to injunctions is contained in Sections 37, 38, 39, 40, 41 and 42 of the Specific Relief Act, 1963. The courts may issue injunction in the circumstances mentioned under these sections. Under this Act the following in the Circumstances mentioned under these sections. Under this Act the following kinds of injunctions can be issued by the Courts -
1. Temporary and Perpetual Injunction;
2. Prohibitory and Mandatory Injunction.
1. Temporary and Perpetual Injunction. - Temporary injunction is such which may continue until a specified time, or until the further orders of the court that is, until the final hearing of the case. A perpetual injunction is one which is issued to prevent the defendant to do an act permanently which is against the right of the plaintiff. A perpetual injunction is a final order of the court which recognizes the right of the plaintiff.
2. Prohibitory and Mandatory Injunction.- Prohibitory injunction forbids the defendants from doing some wrongful act, repeating it which is likely to interfere with plaintiff's lawful rights. For example, restraining the defendant to commit or continue the acts like trespass or nuisance. Mandatory injunction is issued to direct the defendant to do a lawful act, for example, to pull down the wall which causes obstruction to the plaintiff's right to light.
3. Specific Restitution of Property.
This remedy is available to the injury party who had been wrongfully dispossessed of his movable or immovable property. In such a case the court may order the defendant to restore back the property to the plaintiff.
Extra - Judicial Remedies
Apart from the above remedies of damages, injunctions and specific restitution of property, a person has certain remedies available to him outside the court of law. These remedies are therefore know as extra-judicial remedies, that is, they can be resorted to by the person's own strength by way of self-help. This includes the following remedies:
1. Self - help
2. Re-entry on land
3. Expulsion of trespasser
4. Reception of goods
5. Abatement of nuisance.
1) Self - help
Every person is entitled to use reasonable force to protect himself against any wrongful act. But this right is subject to condition that use of force for self-help must be in proportion to the danger or injury sought to be prevented. Right to self-help includes the right to protection of one's own body, members of his family, servant and master, protection of property etc.
2) Re-entry on land
A person who has been dispossessed of his land wrongfully can re-enter his land and take its possession. He can use necessary force for this purpose provided it is done peacefully.
3) Expulsion of Trespasser
Every person has a right to expel a trespasser from his land. He can also use necessary force to expel the trespasser, but the user of force must be reasonable and proportionate to the danger. Before the use of force the trespasser should be asked to leave the land and be given an opportunity to leave the land.
4) Reception of goods
If a person is dispossessed of his chattels or animals wrongfully. He is entitled to repossess them. In exercise of this right he can enter upon the land of another and it will not amount to trespass.
5) Abatement of nuisance
If some nuisance is done or continues on a person's land, then he is entitled to abate or remove the nuisance. For example an occupier of a land may cut branches of a tree hanging over the window of his house which obstructs his light or his way. Similarly, an occupier of a land can cut spreading roots from his neighbour's land.
Distress - Damage - Feasant
'Distress' means the right to detain and 'Damage' means 'Injury' and 'Feasant' means 'wrongful act'. Thus if cattle or other things are on person's land and causing injury, the occupier has right to seize them and retain them until compensation has been paid to him for the damage by the owner of the cattle or animal. Anything animate, or inanimate, which is wrongfully on the land of another and causing damage can be detained. This right can be exercised by a person who has a sufficient possession of land to entitle him to bring an action for trespass.
In India, the law relating to cattle trespass is regulated by a special enactment, namely, the Cattle Trespass Act, 1871, which provides for impounding of cattle which are trespassing on other's land and doing damage. Under the Act a person on whose land cattle trespasses and causes damage is entitled to take them to a cattle pound within 24 hours of the seizure, but there is no further right to detention or sale. The owner of the cattle can take back his cattle from the pound on payment of the pound fee to the pound keeper. He is not bound to pay compensation for release of the cattle to the person on whose land they were trespassing. He can only sue for compensation. Thus the remedy has been almost taken away by the provisions of the Act. A person cannot seize and retain a cattle or things himself and ask the owner of the cattle to pay him damages. He can only impound them and take them to the Government's custody.
Remedies under the Constitution (Articles 32 and 226)
Part III of the Indian Constitution guarantees a number of fundamental rights to the citizens of the country. Consequently, Article 23 and 226 of the Constitution confers Jurisdictions on the Supreme Court and the High Courts respectively for the enforcement of these fundamental rights. Article 32(1) guarantees of every person right to move the Supreme Court for the enforcement of the rights conferred by Part III of the Constitution. Article 32, Clause (2) provides that the Supreme Court shall have power to issue directions or orders or writs in the nature of habeaus corpus, mandamus, prohibition, quo - warranto and certiorari, whichever may be appropriate for the enforcement of any of the right conferred by Part III, but also for "any other purpose", viz. To enforce other legal rights.
EXTINCTION OF LIABILITY IN TORT
In certain circumstance the right of action in tort is extinguished. In such cases the tort is committed but no action can be maintained and if a suit is brought it shall be dismissed. In such cases the wrong - doer is discharged from liability of tort. The circumstances in which a person is discharged from the liability of tort committed by him are following -
1. Death of the parties
2. Waiver
3. Accord and Satisfaction
4. Release
5. Acquiescence
6. Judgment Recovered
7. Limitation
1) Death of the parties
There are two different aspects of death in the law of torts First, there is the problem of whether rights of action are extinguished by the death of one or other of the parties. For example, A assaults B, Before filing any suit of battery A dies. Hence the question is whether right of action extinguishes, or its survivor and after his death his legal representative may file a suit. Secondly, there is a problem of whether the interest of one person in the life of another is recognized by the law of torts so as to afford the former a case of action in respect of the latter's death. A kills B. The question is whether the representative of B can file a suit in tort against A for the death of B.
Indian Law
The maxim actio personalis moritur cum persona (the right of person dies with the person) does not fully apply in India. Like in England, a number of exception have been admitted to this rule and as a result of which the rule has almost been abolished. The Indian Acts which have affected this rule are the following:
1) Legal representatives Suits Act, 1855
Under Section 1 of the Legal Representatives Suits Act an action can be brought by the representatives, administrators and executors of a deceased person for any wrong committed in the lifetime of the deceased which has caused pecuniary loss to the estate of the such person and for no other wrong if committed within one year before his death.
2) The Indian Succession Act, 1925
Section 306 of the Indian Succession Act, 1925 provides that on the death of a person "All demands whatsoever and all rights to prosecute or defend any action or special proceedings existing in favour of or against a person at the time of his decease survive to and against his executors or administrators, except cause of action for defamation as defined in the Indian Penal Code, or other personal injuries not causing the death of the party....
3) Fatal Accidents Act, 1855
This Act has been enacted on the lines of the English Fatal Accidents's Act. The provisions of both the Acts are similar Section 1 of the Act provides that whenever the death of a person shall be caused by wrongful act, neglect or default, the party who would have been liable if death has not caused shall be liable to an action for damages, and such action shall be for the benefit of the wife, husband, parent and child, if any, of the deceased person.
2) Waiver
If several alternative remedies available to the plaintiff against whom a wrongful act has been committed and if he elects one of them as a basis for bringing an action against the wrongdoer. If he elects to waive his remedy, he cannot use it subsequently. The waiver of remedies may be express and implied. This is based on the rule that a person cannot both approbate and reprobate at the same time. For example where the wrongful act against the injured person amounts to both a breach of contract as well as tort, and if he brings his action for breach of contract then he cannot sue for tort.
3) Accord and Satisfaction
Tortuous liability can be discharged by means of accord and satisfaction. If the plaintiff accepts or agrees to accept valuable consideration for the injury caused to his legal rights by the tort feasor, it extinguishes the tortuous liability of the wrongdoer. But subsequent to accord and satisfaction the right to action does not extinguish for injury caused.
4) Release
If the injured party wishes the can release the tortfeasor form liability to pay damages. This is known as right to release. The right to release is given by a written document.
5) Acquiescence
If a person deliberately does not being an action against the wrongdoer for a long time then it is presumed that he has waived his right to take action. Only delay does not prove that the person has waived his right, it must be proved that he has done it by acquiescence.
6) Judgment Recovered
If in a case the court has given a decision then no action can be brought for the same cause of action given. Its main object is to check litigation and to accept the validity of the precidents. The injured party cannot bring an action against the wrongdoer twice on the same cause of action.
7) Limitation
The Limitation Act, 1963, prescribes the period within which an action may be filed. If the suit is not filed within the time prescribed, it becomes time barred. The Act prescribes different period of limitation taken for different type of cases.
UNIT - IV
The security of the person of the mankind is the most important function of the law. The law of crime prescribes different kinds of punishments for different kinds of injuries to the person of a human being. The law of tort is concerned with the award of a damage to the person aggrieved. For example - 'A' beats 'B' with lathis. In a criminal proceeding, 'A' may be sent to jail or may have to pay a fine to the Government. In a tortuous suit 'A' will have to pay damages to 'B' for his injuries.
An injury to the person for which action lies in tort may be divided in three kinds: Assault, Battery, and False Imprisonment.
Definition
According to Dr.Winfield, an assault is an act of the defendant which causes in the minds of the plaintiff reasonable apprehension of the infliction of a battery on him by the defendant.
An assault is an attempt or offer to apply force to another's person (body). Any one, who intentionally brings any material object into contact with another person, is said to have applied force to the person of that other, e.g., To throw stone or water upon a person, or to pull chair form under him, whereby he falls to the ground, or to strike a person with a stick. In all these cases one person brings some material object like stone, water, ground and stick in contact with the person of the other. In assault the force is not actually applied but only attempt is made.
Essentials of assault
In an action for assault the plaintiff has to prove the following things -
1) intention to use force
2) capacity to use force.
1) Intention to use force.
The first thing which the plaintiff has to show in an action for assault is that there was some gesture, or preparation which constituted a force. Mere words are not enough nor passive conduct. There must in all cases be the means of carrying the threat into effect.
2) Capacity to use force
In order to constitute an assault it is also necessary that the person so assaulted must on reasonable grounds believe that the person assaulting has the ability to apply the force so attempted by him. If it is clear to the plaintiff that the defendant has no present ability to carry out the threat because he is too far away to bring the threat into action, there is no assault.
Assault must be intentional
A mere gesture not showing an intention to use force instantly is not an assault. The well-known case of Tuberville V. Savage is an example of show of force devoid of intention to carry it out. The words, "were it not assize (trial time) time I would tell more of my mind", after putting the hand on the sword, were not held to be assault.
Illustrations -
1) A shakes his fist at Z intending or knowing it to be likely that he may thereby cause Z to believe that A is about to strike Z. A has committed an assault.
2) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely that he may thereby cause Z to believe that he is about to case the dog, to attack Z. A committed an assault upon Z.
3) A takes up a stick saying to Z, 'I will give you a beating'. Here though the words used by B could in no case amount to an assault, and though the mere gesture accomplied by any other circumstances might not amount to an assault the gesture explained by the words bay answer to an assault.
Definition
According salmond: "Battery is the application of force to the person of another without any lawful justification".
Battery is an accomplished assault. The attempt to strike with stick is an assault, but to strike actually is battery. The application of even the slightest amount of force is actionable. Batty need not be accompanied by bodily harm. Even to touch a person without his consent or any other legal justification is battery.
Essentials
In an action for battery the plaintiff has to prove the following things:-
1) Use of force.
2) Force must be intentional
3) Without lawful justification
1. Use of force
The first element which one has to prove in an action for battery is the use of force to the person of another, e.g., Slapping or pushing. It may be done by bringing an object into contact with him like throwing stone on him or setting a dog upon him, without any lawful justification. There is no battery unless there is an act by the defendant.
2. Force must be intentional
The second element which must be proved in an action for battery is that the use of force must be intentional and without lawful justification. Jostling one another in a crowd is not actionable as battery is it is not done deliberately.
3. Without lawful Justification
Consent, express or implied, is a lawful justification. A friendly push or staking had is not battery. To touch a man in friendly manner in order to draw his attention is not a battery. Similarly, certain acts done under authority or statute do not amount to battery.
Definition
According to Dr. Winfield, 'False imprisonment consists imprisonment of a total restraint for some period, however, short, upon the liberty of another without sufficient justification.
False imprisonment means the total restraint of a person's liberty without lawful justification. False imprisonment usually accompanied with force or threat of force. It is also a crime known as wrongful confinement in the Indian Penal Code (Section 340). In an action for damages for this tort, the plaintiff should prove (a) his imprisonment, and (b) that it was caused by the defendant or his servant acting in the course of his employment.
To constitute the wrong in question there need not be imprisonment in the ordinary sense of the word as given in the above illustration (confining one in the room). It is sufficient if the plaintiff has in any manner been deprived of his personal liberty. For example, if an officer shows a warrant to a person and he silently follows him, it amounts to false imprisonment (though he is not confined) only because his liberty has been jeopardized. If A, a man of power, asks B to stand in the sun and if B out of fear and in obedience to the order of A, keeps standing in the sun, this is false imprisonment.
Essential Elements
In order to fix the liability for false imprisonment the plaintiff has to prove the following essentials:
1) Total restraint
2) Detention must be unlawful.
1) Total restraint
The period for which the restraint is committed may be very short. In order to constitute false imprisonment duration of retention is immaterial. If A restrain to B without any lawful justification, he cannot avoid liability only by proving that he did so only for a second. To compel a man to remain at a particular place or to make him go in a particular direction is an imprisonment. In order to constitute the tort of wrongful confinement there should be a boundary line beyond which he cannot go, only a partial restrain upon one's liberty is no imprisonment. It is not an imprisonment to prevent a man from going in one direction.
In Bird V. Jones, is a good illustration on the point. In this case the plaintiff was prevented from going on the highway as it was enclosed by the defendant for seeing a boat race. It was held that there was no imprisonment as the plaintiff's partial liberty was restricted. But the distinction in preventing a man from going to one direction, and making him go in another direction must not be lost sight of. In the former case there is a partial restraint on the man because he is at liberty to walk in any other direction. In the letter case there is a completer restraint because the defendant in this case puts a limit to the movement of the plaintiff and the plaintiff has to move into a circumscribed limits.
2) Detention must be unlawful.
In order to constitute false imprisonment it is necessary to prove that the detention is unlawful and without any justification. The question to be asked to as who can be sued the false imprisonment and who was active in promoting the confinement. If the defendant arrests the plaintiff and hands him over to the police, he would be liable if the arrest is illegal. Where the defendant makes the report and the police comes and after making an independent inquiry the police arrests the plaintiff, the defendant would not be liable.
Arrest by public Authority:- If police or other authorities have power under a law to arrest and detain a person than it will not amount so false imprisonment.
Section 41(1) of the Criminal procedure code, 1973, provides that a police officer may arrest a person "who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists of having been so concened".
Thus the existence of a reasonable suspicion is the minimum requirement under before a person may arrest any person who, (i) in his view has committed a non-bailable and cognizable offence, or (ii) is a proclaimed offender. After making arrest the person must without unnecessary delay hand over the arrested person to a police officer of the nearest police station. No person who is arrested shall be detained in custody without being informed. As soon as may be, of the grounds for such arrest he shall be denied the right to consult, and to be defended by a legal practitioner of his choice (Article 22(1)).
Article 22(2) provides that every person who is arrested and determined in custody shall be produced before a Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of Magistrate and no such person shall be detained in custody beyond the period without the authority of a magistrate.
In Dailison V. Lafrey, the plaintiff was arrested by the police for committing theft. According to the information received by the police he was identified while committing theft. If was held that the plaintiff's arrest was lawful. But if a person is arrested on the basis a false report by a person, it will amount to false imprisonment.
Justification
1) Self-defence:- Assault and battery are justified if they are committed in self-defence or in defence of property. Every person has a right, subject to certain limitations, to defend his own body and property and those of any other person against the invasion by third person.
2) Parental or other authority:- Assault, battery and false imprisonment may be justified if they are committed in exercise of parental or some other authority like it. Parents may, as they really do every day, chastise their children by putting then in fear, by beating or by restraining their liberty to move. So can a teacher do. But he can chastise only for the wrong committed by the children in the school or while going to the coming from the school.
3) Public authority:-Certain public persons are authorised to arrest individuals in certain circumstances. A public officer has power and is authorised to arrest any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made of his having been so concerned. In many other circumstances police officers can arrest an individual without running the risk of being sued for the damages.
4) Judicial authority:-Where a person is imprisoned by a judicial authority, no action will lie for false imprisonment. The general rule of immunity of Judicial Officer Protection Act of 1850. No suit will lie against a judicial officer for false imprisonment or for any other tort or acts committed by him in his judicial capacity believing in good faith that he was acting withing his jurisdiction.
A man's reputation is his property more valuable than other property. Every man has the right to protection of his reputation. Injury to one's reputation has been termed as defamation.
Definition of defamation
According to Dr. Winfield, "Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally, or which tends to make them shun or avoid that person".
It is not necessary that the defamatory statement must be made in words, written or spoken. One may be guilty of defamation even though one has neither spoken nor written a word.
Wrongful act and defamation
Defamation must be distinguished from wrongful acts (not words) which inure reputation. If a person is assaulted in a public place or if he is arrested unlawfully he may feel disgraced but these acts cannot come under the category of defamation as in these cases the reputation has been injured by acts, and defamation deals with injury reputation by words.
Insult
There is another kind of injury done to another by means of words or representation called insult. Defamation differs from insult also. The former is a wrong done to regard or esteem in which one is held by other while the letter is an injury only to ones dignity or self-respect. Therefore defamation requires publication to the third person, whereas insult may consist in abusing a person only in his presence. For example, A gets a berth reserved in a second class compartment. B enters the compartment and takes his seat on the reserved birth. 'A' comples 'B' to leave the seat. Here B being a respectable man and a man of position feel insulted. But this does not injure his reputation.
Kinds of defamation
Under English law there are two types of defamation:
1) Libel
2) Slander
The wrong of defamation may be committed either by way of writing (libel) by way of speech (slander). This is written and slander is spoken.
1. Libel
In libel the defamatory statement is made in some permanent and visible form, such as, writing, printing, pictures or effigies. In slander, on the other hand, the statement is made by some spoken words or some transitory form, whether visible or audible such as gestures, hissing or such other things.
Libel actionable per se
It means that in an action for libel plaintiff is not required to prove any damage. Any injury to one's reputation is actionable per se whether it causes any special damage to the plaintiff or not.
2. Slander
In slander defamatory statement is made against a person by spoken words or some other temporary form, whether visible or audible, such as gestures, hissing or such other things. The medium by which slanderous statement is made is generally permanent. Thus anything temporary and merely audible is slander. It is, therefore, generally said that liable is for eyes and slander is for ears. Slander is not actionable per se. In action for slander the plaintiff, has to prove some special damage. A mere injury caused to a man's reputation does not entitle him to initiate an action for defamation. The defamatory statement must have caused a real damage to the plaintiff which may either be pecuniary or which can be determined in money value. Secondly, the damage should also not be remote.
When slander is actionable per se
In the following circumstances slander is actionable per se i.e., Without prove of any special damages -
1) Imputation of Crime - If the defendant inputs a crime to the plaintiff he has a cause of action without any prove of damage. But the crime imputed must be one for which the plaintiff could be made to suffer corporally i.e., by punishment with at least imprisonment in the first instance.
In Thompsol V. Bernard, the words "T is a damned thief and so was his father before him and I can prove it" seem clear enough, but because they were followed by 'T' received the earnings of the ship and ought to pay the wags, the Court directed and non-suit because only breach of contract was in fact imputed".
2) Imputation of some decease. - To impute that a person suffers from an existing contagious venereal disease is to commit slander actionable pre se. Whether this exception applies to other diseases is doubtful. It is generally accepted that suffering from the particular disease induces neither moral condemnation nor loathing it is now actionable per se.
3) Imputation regarding business or office in competency of plaintiff.-Imputation of incompetency and dishonesty of plaintiff with regard to his office, profession, callings, trade or business is slander and actionable per se. Imputation of bankruptcy against shopkeeper, incompetency against surgeon and ignorance of law against a lawyer are slander actionable per se.
4) Unchastity of a woman. - Slander of Women Act of 1981, provides the "words spoken and published ..... Which impute unchastity or adultery to any woman or girl shall not require special damage to render them actionable.
Distinction between libel and Slander
According English law there are following distinctions between liable and Slander:
1) In libel the defamatory statement is made in some permanent and visible from, such as, writing, printing, pictures or effigies. In slander, on the hand, defamatory statement is made by some spoken words or some other transitory form, whether visible or audible, such as, gestures, hissing or such other things. It is, therefore, generally said that libel is addressed to the eyes and slander is addressed to the ears.
2) Libel is not merely an actionable tort but also a criminal offence, while slander is a civil injury only and not a criminal offence except in certain cases.
3) Libel is actionable per se (in itself) i.e., Without proof of actual damage, whereas slander is actionable only on proof of actual damage.
Position of law in India
As discussed above, in England slander is not actionable without proof of actual damage. The above rule of English law, however, has not been absolutely followed in India.
In India under Section 499 of the Indian Penal Code both slander and libel are crime, i.e., Punishable without proof of any damage.
According to the Indian penal Code slander is considered more serious offence than that of liable because of defamatory statement it is likely to cause breach of peace. In libel this tendency is very less.
Section 499 of I.P.C.-Provides that "whoever, by words spoken or intended to be read, or by sings or by visible representation, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, exception in the cases hereinafter excepted, to defame that person.
Explanation 1. - It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feeling of his family or other near relatives.
Explanation 2. - It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3. - An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4. - No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of other, lowers the moral or intellectual character of that person, or lowers the character of that person, or lowers the character of that person in respect of his caste or of his calling or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state or in a state generally considered as disgraceful.
Essentials of defamation
In an action for defamation the plaintiff has to prove the following essentials-
1) The Statement must be defamatory.
2) The Statement must refer to the plaintiff.
3) The Statement must be published.
1) The Statement must be defamatory.
A statement is defamatory if it tends to injure the reputation of a person to whom it refers. Such a statement tends to diminish the good opinion that others hold about the person, and it has a tendency to make others to look at him with a feeling of hatred, contempt, ridicule, fear, or dislike or to injure him in his profession or trade.
A statement may nonetheless be defamatory, although the maker state is not as a fact but as a mere opinion. Whether such statement is defamatory, one must take into account the circumstances, time and place. Thus is Slazenders Ltd. V. Gibbs, to State during the war with Germany that the plaintiffs were a German firm and likely to be closed down, was defamatory. A few examples further illustrates what is and what is not defamatory. To say that a motorist drives negligently is defamatory.
In SNM Abdi V. Prafulla Kr. Mohanta, the respondent who was the former Chief Minister of Assam filed a suit for damages alleging that he was defamed by an article published in illustrated Weekly of India with the heading "Money and Muscle Power" with some false and defamatory allegations with the intention to lower the reputation and prestige of the plaintiff and this article was widely circulated in India in other newspapers. The defendants filed vakalatnamas but did not file any written statement nor adduced any evidence in support of the articles. The trial court considering the material on record came to a finding that the article was per se defamatory in nature and damaged the reputation of the plaintiff and awarded Rs. 5,00,000 as damages with was reasonable. The defendants filed an appeal against the order of the trial Court. The High Court considering the facts and circumstances of the case reduced the amount of damages to Rs. 50,000/-.
Injuries, Falsehood and Defamation
The defamatory statement must be distinguished from the statement which is only injurious but not defamatory. If injurious statement is falsehood, spoken about some other person which in no way affects reputation of the person in some other way.
Innuendo
In order to determine whether a statement is defamatory or not, the interpretation of its meaning is very necessary. From a statement may be interpreted a meaning which is quit different from what the defendant understood when he published it. Thus, the meaning of a statement is not the meaning which the publisher had in his mind but is that which is given or which may reasonably be given to it by the persons to whom it is published. The meaning of a statement is the meaning understand by the people to whom it is made and not the meaning with which the defendant made it. Test is whether under the circumstances in which the writing was published reasonable men to whom the publication was made would be likely to understand it in a libelous sense.
Thus we see that the meaning given by the person who made a statement is immaterial. Even if a person make statement with a defamatory motive, it will not be so if the persons to whom the statement quit innocently without any motive to defame any person, he will be liable for defamation, if the persons to whom the statement is made interpret it reasonably to have defamatory meaning.
If a man uses a defamatory words in joke he must prove that it was so understood by those who heard or read it, otherwise he will be held responsible. Thus a person is responsible for his statement which he believes to be innocent, but which is, in fact, defamatory by reason of facts known to those to whom he makes it.
2) Statement must refer to the plaintiff
It is necessary in every action for defamation to prove that the defamatory statement referred to plaintiff. The reference may be express or implied. It may be latent and it is sufficient in such a case that it would have been understood even by one person although it remained hid from all others.
Thus in Hulton and Co. V. Jones, a newspaper published an article in which some Artemus Jones was described as a church warden. He was accused of living with a mistress i France. The writer did not know that there was any person as Artemus Jones. He has invented an imaginary name for his article. But unfortunately for him there existed one person bearing the same name. he was an English barrister. And those who knew him supposed that the articles referred to him. It was held that the newspaper was libel.
3) Statement must be published
Publication of defamatory matter is essential. If there is no publication there is no injury to reputation and no action will arise. The term publication, in general, means making a thing publicly known. Here it means the act of making known to any person or persons other that the plaintiff himself. It is not necessary that there should be any publication in the popular sense of making the statement public known.
Husband and Wife:
It is important to note that a communication between a husband and a wife does not amount to publication. For example, suppose A writes to his wife B that X is dishonest person and also suppose that no body else knows that. Here X cannot sue A for defamation as he h as not made publication of libel. Similarly the wife can safely communicate a defamatory statement to her husband. But, on the other hand, if the defendant makes a statement to the wife or the husband of the plaintiff makes defamatory statement of the other spouse, he makes a publication and is liable. Thus the above example A could freely communicate the statement about A to his own wife but if he writes the same statement to the wife so X, the plaintiff, his communication will amount to publication and he will be held liable.
Publications by two or more persons:
In general the original maker of statement is not liable for its republication by another but that other will be responsible even though he expressly states that he is merely reproducing what he has been told from a specified source.
If a person is guilty of slander, another person repeating it cannot escape responsibility, because he merely repeats the slanderous statement made by another. People who make slanderous statement will be punished when they are found out and tried.
Publication presumed in certain cases:
The difficulties of proving publication are caused by certain rebuttable presumptions. In the cases where the document is so exposed to be read and understood by some one that it is possible that he read it and understood it, it will be presumed that the publication was made and it rests on the shoulders of the defendant to disprove the presumption, i.e., To prove that the persons who are son presumed to have read and understood have either not read, or even if read had not understood it. Proof of proper addressing and posting of a letter givers rise to presumption of publication to addressee, and postcard and a telegram are presumed to have been published to post-office officials.
Defamation by omission
There may be publication by omission. Failure by a defendant authorised and able to remove or amend defamatory matter which is the work of another is publication by him. The is charge of a club will therefore be accountable for defamatory matter placed by another on the notice-board of a club if they do not remove it within a reasonable time.
Measure of damages in defamatory publication
In deciding the question of compensation in defamatory publication the Court must take into consideration the following things:
1) The conduct of the plaintiff
2) His position and standing
3) The nature of libel
4) The absence or refusal of any retraction or apology of libel
5) The whole conduct of the defendant from the date of publication of libel to the date of decree.
Defences
The following are the defences generally taken in an action defamation:
1) Justification of truth
2) Fair and bona fida comment
3) Privileged statement
4) Apology
1) Justification of truth
In an action for defamation truth of the defamatory statement is a complete defence. But under the criminal law truth of the statement is no defence. If the defendant proves that the defamatory statement is true, no action will lie for it, even if he has published the statement maliciously.
2) Fair and bona fida comment
A fair and bona fide comment on a matter of public interest is a good defence is an action for defamation. Every person is entitled to express his opinion on matters of public interest. A statement is privileged if it is a fair comment on a matters which is of public interest, or is submitted to public criticism comments and criticism must be distinguished from mere statements of facts. The essentials of a fair comments are :-
1) that it is a comment or criticism and not a statement of fact,
2) that the comment is on a matter of public interest.
3) that the comment is fair and honest.
3) Privileged Statement
There are certain occasion which are so important that those making their statements upon them are not liable in defamation; even though their statements are untrue and even malicious. Mere occasions, where the public interest in freedom of communication is paramount, are styled cases of absolute privileges. The privilege is of two kinds:-
1) Absolute privilege
2) Qualified privilege
1) Absolute privilege
The following are the absolute privileges -
1) Parliamentary proceedings;
2) Judicial proceedings;
3) Military and naval proceedings;
4) State proceedings
1) Legislative Proceedings. - statement made by members of either House of Parliament in course of parliamentary proceedings are absolutely privileged. The privilege is strictly confined to the floors of the houses of Parliament and does not extend outside not even to the lobbies, the smoking room or the visitor's gallery. All reports, papers, votes and proceedings published by, or under the authority of either house are also absolutely privileged.
2) Judicial Proceedings - Statements made in proceedings before superior and inferior courts of record and Magistrate courts are privileged. It has been established beyond that neither party, witness, counsel, injury nor judge can be made to answer civilly or criminally for words spoken in office and that no action for libel or slander lies whether against judge, counsel, witness or parties for words spoken or written in the course of any proceeding before any court recognised by law and this is so even if the words were written or spoken maliciously without any justification or cause and from personal ill-will and anger against the person defamed.
Privilege of an advocate. - The privilege extends to an advocate, vakil, pleader or mukhtar while conducting a case and statements made by them while so engaged are protected.
Privilege of a witness. - A witness is not liable to be sued for libel for evidence given on oath in Court. A witness is absolutely privileged in regard to anything he says in the witness box, provided it has reference to the enquiry, through it may not be legally relevant.
Privilege of a party.- No party to an action, civil or criminal will sender himself liable for defamation in respect of any statement made by him in any pleading, statement, complaint, affidavit, or in his deposition before the Court.
It has been held that the occasion of making each of the following statement is absolutely privileged:
1) Any statement by a judge as such;
2) Any statement made by a subordinate officer of a Court when acting either judicially or on duty;
3) Any statement made by an advocate as such, counsel, vakil, pleader, solicitor, official receiver where he has a right of audience in judicial proceeding;
4) Any statement in a pleading, notice, summons, report, will information or other similar document used or prepared with a view to use in a litigation actual or contemplated;
5) Any statement by a junior;
6) Any statement by a witness as such;
7) Any statement supposed to be material for the purpose, made by a person, seeking legal advice, to a legal practitioner or by such practitioner to such person in the course of and for the purpose of advising him.
2) Qualified Privilege
In certain circumstances, it is thought desirable that reflection on the reputation of others although untrue, should not give rise to tortious liability, provided that they were not published with malice. As in absolute privilege, in qualified privilege too, it is the occasion that is privilege, in qualified privilege too, it is the occasion that is privileged by unlike absolute privilege, it depends upon how that occasion has been used and malice will destroy the privilege.
"A statement is said to possess a qualified privilege when although false and defamatory it is not actionable without proof of malice". A qualified privilege is an intermediate case between the total absence of the privilege and the presence of absolute privilege.
Apology
The offer or the making of an apology is not at common law a defence, although it may be given in evidence in mitigation of damages. Section 2 of the Libel Act 1843 however enacts-
"In an action for libel contained in a public newspaper or other periodical publication, it shall be competent to the defendant to plead that such libel was inserted in such newspaper or other periodical publication without actual malice, and without gross negligence, and that before the commencement of the action or at the earliest opportunity afterwards he inserted in such newspaper or other periodical publication a full apology for the said libel or if the newspaper or periodical publication ... Should be ordinarily published intervals exceeding one week had offered to publish the said apology in any newspaper or periodical publication to be selected by the plaintiff in such action". The plea of apology is maintainable only when the person defamed accepted the apology. Every such defence must be accompanied by a payment of money into court by way of amends.
In human life there is great importance of family relationship. In India, it has more importance than other countries. The main basis of domestic relations is confidence and love towards each other which comes from living together. Any kind of interference in family relations destroys the person's life.
Torts which interfere with family relations
Torts relating to domestic relationship are based on the old notion that a man has a proprietary interests in the services of the family members and domestic servants.
Torts relating to family relations are as follows:-
1) Torts to marital rights
2) Torts to parental rights.
1) Torts to Marital Rights
a) abduction of another's wife
Any one (other than her husband) who has sexual intercourse with a female is liable to a parent or other person, who is entitled to her services for the loss of services resulting from his act. In this case damage is awarded to the plaintiff for his wounded feelings.
Thus basis of action is the loss of consortium of his wife which means an exclusive right against the wrongdoer who deprives him of her affection, companionship and aid. Similarly, if a woman entices the husband of another women and deprives of her husband's society the women is entitled to bring an action against the women. A wife owes the duty to her husband to reside and consort him and any person who, without justification, entices or persuades her to violate this day commits a wrong towards the husband and he is entitled to bring action for damages.
The 'right of consortium' is a mutual right of husband and wife and if a person violates it, either husband or wife can bring an action
b) Adultery
The damages for adultery is to be compensatory and not punitive. The pecuniary value of his wife, i.e., Her fortune and his domestic business ability will also be relevant. Her social value, i.e., her character and ability as wife will be important.
In India, offence of adultery is punishable under Section 497 of the Indian Penal Code.
c) Injury to husband and wife
One who by reason of his tortuous conduct is liable to married woman for physical injuries is subject to liability to her husband for the resulting loss of her services. In consequence of a single accident to the wife, two quite separate actions may arise (1) by the wife in respect of pain and suffering inflicted upon her, (2) by her husband for the loss of her services. The husband can recover in tort of this wife's medical and hospital fees. He may also claim for any domestic expenses to which he has been put because of the injuries to his wife.
In Best V. Samual Fox and Co. Ltd. It was held that the damages would be recovered for even an impairment of the society and comfort afforded by the wife to her husband, e.g., If her capacity for sexual intercourse were destroyed as a result of the act of the defendant.
Parents are guardians of their children. Parents have a legal right to have custody, control and maintain their children. Whether the parents have right to attain the services of their children or not it is necessary to show that the children are living with their parents. Proof of their parents is sufficient proof of service.
4.7 Seduction
The tort of seduction is not which is actionable per se. It is actionable when the parents are deprived of from the service of their daughters and sons. This right of the parents also continue at the time when she or he is in the service of another person. In first case if is necessary to prove that the parents were deprived of the services of their children as result of the wrongful act of the defendant. In case of abduction "the carnal knowledge of the daughter does not amount to loss of services".
Elements of seduction
1) The female must be in service of the plaintiff at the time of the seduction. A parent could not therefore sue when her daughter, a Governess was seduced while at home on three days' leave for Oxford races.
2) The female must be in service of the plaintiff when the loss of services accurs.
3) The plaintiff must be entitled to the services of the female he will normally be the father.
4) There must be a sexual intercourse.
5) The plaintiff must be deprived of the services of the female.
The word trespass is generally used to refer to some disturbance of a person's possession of corporeal immovable property like a land or house. This trot protects the interest of the plaintiff in having the land free from physical intrusion. Because of this emphasizes on physical interference with possession, it follows that it is not the function of the tort to protect ownership as such.
An intentional direct interference with land in the possession of the plaintiff is a trespass (trespass quare clausum freight). This tort protects intrusion. Because of this emphasis on physical interference with possession,
it follows that it is not the function of the tort to protect ownership as such.
In an action for trespass the plaintiff is required to prove the following things:-
1) that he was in possession of immovable property.
2) that the defendant disturbed his possession.
Possession of immovable property
A. Possession
Before we may discuss as to what acts amount to disturbance with possession of immovable property we have to consider as to what the term possession means. The essential element of the term possession in legal construction can be stated as follows:-
1) The possessor has the power to use the property and exclude other from it and he has the intent to possess if, i.e., Animus passessendi.
2) No other person manifests that intent nor has equal or greater power. There is difference between ownership and possession. Let us take an illustration. A is the owner of a house and lies and lives in it, he is the owner and is also in possession of the house. But if A lets the house to B for a term of one year and B enters into the property. The possession in land is distinguishable from right to possess. A person may be the owners of a property but another may be in possession without his consent and in defiance of his right. Such cases are not rare where a person occupies some property against the wishes of the true owner. Such possession is said to be in adverse possession.
B. Actual and Constructive possession
Possession may be actual or physical. A owns a house and he lives in it. B owns a field and he cultivates it by his own stick. Here A and B are in actual physical possession of the house and the field respectively. This sort of possession is termed as actual possession. The owner of a property may be in possession of his property through others. Suppose A owns a house are Calcutta he lets it out t a tenant. The tenant is in the actual possession of the property whereas A is in constructive possession of it.
C. Immovable property
Immovable property under this chapter is used in the sense of corporeal property capable of physical possession, e.g. A house, a land. It also includes an exclusive right to fishery or of digging turf or right to the standing crops under a purchase.
Disturbance of possession
The disturbance of possession may be committed by -
1) Entering without lawful justification upon the lands in possession of the plaintiff.
2) By remaining upon the land in possession the plaintiff without lawful justification.
3) By placing may material object upon the land in the possession of the plaintiff.
4) By entry of the defendant's cattle on the property of the plaintiff.
By Entry
The commonest from of trespass is committed when the defendant enters into the land or building possessed by the plaintiff. To enter another's land is a trespass, it is immaterial whether one is on the land momentarily or stays on it for long except in fixing damages.
In an action for trespass by entry the plaintiff has not to prove that the defendant used some force or that he caused some damage to the plaintiff. The trespass is an actionable wrong and a mere trespass is an a rule actionable. In this respect trespass differs from offence of criminal trespass. In criminal law entry upon or into the property in possession of another is not an offence per se. In order to make an entry criminal trespass it must be with an intention to commit an offence or to intimidate, insult, or annoy the person in possession of the property.
(1) Trespass beneath the surface
In general, he who has possession or ownership of the surfaces of land possesses or owns the interior part of the land. Therefore entry beneath the surface is a trespass.
(2) Entry above the surface
Generally the owner of the soil is also the owner of the whole column of the space above. This rule was embodied in the maximum cuius est solum cious est usque adcoelm (whose is the soil, his owner the sky and to the depth below). But the principle has been considerably curtailed and qualified in modern times. Air Navigation Act of 1920 of England and the Indian Air Craft Act of 1934 have declared that no action shall lie for trespass or nuisance merely by reason of the flight of an aircraft over any property at a height above the ground with having regard to weather, wind and all the circumstances of case is reasonable.
(3) By remaining of land
Even a person who has lawfully entered upon land of the plaintiff commits a trespass if he remains there after his right to remain there has ceased. A person who remains on another's land after his license is revoked, commits a trespass though his entry was; legal but the continuing in possession by a lessee after the expiry of the period of the lease will not be a trespass.
(4) Placing inanimate thing on the land
It is also trespass to cause any physical object to cross the boundary of the land of the plaintiff. The mere fact of placing a thing on the land in possession of another is a trespass. To cause some foreign matter to enter or to come into physical contact with the land of the plaintiff is a trespass. Firing a gun in the soil, placing a ladder against, or driving rail into the wall of the plaintiff, removing the doors and windows are all trespasses.
(5) Trespass by entry of cattle
The damage of the cattle comes also under the headings of negligence and nuisance and it has been discussed there too. This being the tort of trespass also it is dealt with here too. Cattle includes horses, oxen, sheep, swine, asses, goats, fowls, geese, ducks, probably tame deer also, but not cats and dogs. Besides the damage for entry the defendant may be liable for the special damage caused by the cattle.
Trespass by a dog or a cat:- It has been held that a man is not liable for trespass of his dog. A trespass by a horse or a cow must do some damage even if they only wander on the land but trespass by a dog will ordinarily do no substantial damage. There is one other reason for exempting the owner of the dog from liability.
Trespass by joint owners:- When two or more persons own some property jointly the possession of one will be presumed to be possession of all. Consequently acts done by them in the usual course of enjoyment of the joint property will not amount to a trespass.
Justification or Exception
We have seen in the foregoing lines that a person entering upon or into the property in possession of another is liable for trespass. But this does not mean that every body entering into or upon the property of other will be guilty civil trespass. There are two kinds of persons whose entry is not a trespass:
1) persons entering by the authority of the party, i.e., owner or the occupier;
2) persons entering with the authority of law.
1. Authority of party.
A private party may give authority to another is two ways :
(A) by grant
(B) by leave of licence.
A. Grant:- The owner of a certain property may by some mode of transfer (sale mortgage of gift) grant right to another and by the authority of such grantee may enter without any liability.
B. Leave and licence:- It may be from the occupier of the owner. In India the law of licence has been dealt in the Indian Easements Act. A licence may be express.
2. Persons entering under the authority of law.
In the following cases a person entering into or upon the property of another even without his permission will not be liable for civil trespass because they shall be presumed to be exercising that right under the authority of law.
1) Re-entry by the owner. - An owner who has been dispossessed by another may re-enter on his land peacefully. And if he so enters he cannot be sued for trespass in civil courts.
2) Entry for taking back one's own chattel.-A person may enter into upon the property in possession of another, without being liable for trespass, to take back his goods.
3) Entry for abatement of nuisance. - A person after giving notice for removal to the occupier of the land can himself enter into or upon. The property in possession of another to abate, i.e., to remove the nuisance.
4) Execution of legal process. - Persons who go to serve the summons of the court or who go to arrest persons in pursuance of the warrant, can enter the premises of the persons in whose name the summons or warrants is issued and for this they cannot be liable for damages in an action for trespass.
Trespass ab initio
A person who enters on another land by authority of the law for some purpose but subsequently abuses that authority and does that which he has no right to do, will be deemed to have entered without authority, and will be liable as a trespasser ab initio, i.e., From the very beginning. The original entry must be by authority of law, not merely with the permission of the owner, for this reason, its greatest use may be as a weapon against officials empowered by law to enter premises for various purposes, such as, search, inspection and the like.
It must also be remembered that the abuse, in order to render a person trespasser ab initio, must amount to misfeasance i.e., Some positively wrongful act not only to non-feasance, i.e., To omit to do some act.
In six carpenters case, six carpenters entered an inn. They were served with wine. They paid for it. They requested for more which as served to them. They refused to pay for this. It was held that they were not liable for trespass ab initio as their non-payment was only a non-feasance and not a misfeasance. However, if they had carried away some furniture of the travern or had omitted some other positive wrongful act they would have been held liable for trespass ab initio.
Legal Remedies
There are two kinds of remedies available against trespass to goods to an aggrieved person-
1) Extra - Judicial Remedies.
2) Judicial Remedies.
Extra- Judicial Remedies
There are three kinds of extra - Judicial Remedies -
1) Expulsion of the trespasser
2) Re-entry
3) Distress damage feasant.
1) Expulsion of the trespasser.-The owner of a house or a land can use force in expelling a trespasser. But it must be remembered that the force used must be reasonable and proportionate. The trespasser must be asked and be given an apportunity to leave the premises before he is driven out by force.
2) Re-entry.-A person who has been dispossessed from his land or building by another is entitled to enter and take possession of his property if he can do so peacefully.
3) Distress damage feasant.-This phrase means detention of things doing damage. This right can be exercised by the occupier of a land with respect to the cattle or other things which trespass on his land and do damage. The occupier can detain the cattle as security for the compensation for the damage done by the cattle. The woner of the people, instead of detaining the animals in their possession send them to cattle pound, i.e., A government detention house.
Judicial Remedies.
The plaintiff has the following judicial remedies available against the defendant -
1) Suit for damages
2) Recovery of possession
3) Declaration of title
4) Injunction
1. Suit for damages.-There may be a case of trespass where the defendant may not have dispossessed the plaintiff nor did he cause physical injury to the property of the plaintiff. This may happen where the defendant enters into the property of another without a legal justification.
2. Recovery of possession.-When the defendant commits trespass and dispossesses the plaintiff can bring a suit for possession.
3. Declaration of title.- In a case where the defendant duly attempts to trespass, the plaintiff can file a suit for a declaration that the property belongs to him.
4. Injunction.-If the defendant has been repeatedly interfering with the possession of the plaintiff. The plaintiff may file a suit for injunction to restrain the defendant from interfering with plaintiff's possession.
WRONGS TO MOVABLE PROPERTY
The law protects persons whose title or possession of goods is interfered with, or whose goods are damaged by intentional conduct. The wrong to movable property falls under the following categories :-
1) Trespass to goods
2) Conversion
3) Detenue
1. Trespass to goods
Trespass to goods means an intentional or negligent interference with chattel in the possession of the plaintiff provided that the interference is direct. Thus trespass to goods means interference with the possession of land without lawful justification. Taking of chattel out of possession of another, moving it from one place to another or even bringing one's person into contact with it, or directing a missile at it, have all been held to be trespass to also it will be trespass to administer person to a dog.
Essentials of trespass to goods
In an action for trespass to movable property the plaintiff must prove the following:
1) Interference with property
2) Interference must be direct
3) Interference must be without lawful justification.
1) Interference with property
In this tort the interference is committed with the possession of movable property. The plaintiff must be in possession of the chattel at the time of the interference. Possession connotes both the power (factum) of exercising physical control and the intention (animus) to exercise such control on his own behalf. Whether the plaintiff is the owner is immaterial.
2) Interference must be direct
In trespass to goods the interference to the possession of land must be direct and by means of some tangible object. There cannot be trespass if the interference is indirect.
3) Interference must be without lawful justification.
This means that if the defendant can plead any lawful justification for interference with the plaintiff's property, he will not be liable for the tort of trespass to goods.
Remedies for trespass
In an action for trespass to goods the defendant can take the following defences-
1) Lawful authority.
2) Protection of property
3) Use of absolute right
4) Compliance of lawful order
5) Plaintiff's wrongful act or negligence
6) Re taking of property.
2. Conversion
Definition
According to Slamond's conversion is an act or 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.
Essential elements
In an action of conversion the plaintiff has to prove the two following elements-
1)a dealing with the chattel in a manner inconsistent with the right of the person entitled to it, and
2)an intention in so doing to deny that person's right or to assert a right which is in fact, inconsistent with such right.
Wrongful intention - Essential
In order to amount conversion the act done by the defendant with respect to the chattel of the plaintiff must have been on of willful and wrongful interference. If by such interference with a chattel a loss of the chattel occurs the defendant will be liable for the value of the chattel in an action of conversion. The 'dealing' with the chattel need not always take the form of an interference with possession.
Modes of conversion
The acts conversion may be effected in any of the following ways:
1) Conversion by taking goods.
2) Conversion by detention.
3) Conversion by denial of the title.
4) Conversion by delivery.
5) Conversion by destruction.
1) By taking
A mere taking of a chattel is an actional trespass. But it is conversion only if it amounts to an adverse exercise of dominion by the defendant. Generally one takes another's article for his use.
2) Delivery to a third person.
We have seen that a man commits a tort of conversion by taking a thing from the possession of another and also by detaining goods legally obtained. A man commits a wrong of conversion by delivering another's goods to a third person.
3) Transfer of property
A person may give another's goods to a third person purporting to transfer it. The transfer may be after completer ownership of the property like sale or gift or it may be a limited interest in the property such as a pawn or bail of a property. A is bailee of a horse of B. he sells the horse to C asserting his own title to it. He is guilty of conversion by delivery.
4) Sale in market
Generally a mere bargain and sale without a delivery of possession is not a conversion. A may sell to B the horse of C. But the horse-remains with C and no delivery takes place. Here there is no conversion. The vendee B having purchased the horse from., A who has no interest in it cannot sue C in courts of law for delivery possession of the horse. So if there has been no delivery there cannot be conversion only be transaction of sale because that alone does not materially affect the owner of goods.
Defences
Three sorts of defences are available to a defendant in a suit of conversion. They are-
1) Authority of the plaintiff.
2) Authority of law.
3) Estoppel.
a) Authority of the plaintiff.- When a person bails or sells the chattel of another and an action for conversion is brought against him, he may plead and prove that he disposed of the property by the authority of the true owner. And if he is able to prove this he will not be held liable.
b) Authority of law:- Sometimes law gives power and authority to individuals to take some examples:-
1) Execution of legal process - An amin who has got an order for attachment may attach and take away movable property from the house and possession of the judgment-debtor. For this act of his he cannot be held liable.
2) Disters - A landlord has a right to take the chattel of his tenant for the arrears of rent.
c) Estoppel - When the plaintiff has by own conduct made the defendant commit the tort of conversion, he will be estopped from getting any relief against the defendant.
Remedies
A person who duffers loss by an act conversion has the following remedies-
1) An action for damages;
2) An action for specific restitution;
3) An action for money not receive.
a) An action for damages -
The ordinary measure of damages is the value of the goods. The plaintiff may also get compensation for any special damage directly resulting from the conversion.
b) An action for specific restitution -
A court has power to order for the recovery of possession of specific movable property taken by the defendant let us take an example B takes away one ring of A. Mere court may order B, instead of paying A the price of the ring, to return the right to A.
c) An action for money nor receive -
The plaintiff may give up his claim of a tort of conversion. He may for the money which had not received for his own use. In this class of remedy the plaintiff sues the defendant for the price of the chattel as if there was a contract between the parties.
Detention means detaining the goods or chattels of another person without any lawful justification. This applies where there is wrongful detention of a chattel of another person entitled to the possession of them. In detenue the plaintiff must ordinarily prove that he has right to immediate possession and a right of property in chattel and that the defendant detained the chattel after the plaintiff demanded its return.
The action of detenue is based upon a wrongful detention of the plaintiff's chattel b the defendant, evidence by a refusal to deliver it upon demand and the redress claimed is not damages for the wrong but the return of the chattel of its value. If a bailee unlawful of or negligently loses or parts with possession he cannot be rid his contractual liability to restore the property of the bailor as termination of bailment and if he fails to do, may be sued in detenue.
Action for wrongful conversion and an action for wrongful detention are otherwise known as action in trover and an action in detenue. Judgment for petitioner in trover is for recovery of damagaes for conversion. Judgment for the petition in detenue is for delivery for chattel or payments of its value and the damages for detention.
In an action for detention the demand by the plaintiff and refusal by the defendant must be proved before an action is brought.
Proposition of the law of torts relating to the interpretation with economic interest must take the form of a description of a series of torts where the particular interference is unlawful wrongful. They are following:-
1) Interference with existing contract
2) Conspiracy.
3) Intimidation.
4) Passing off.
5) Injurious falsehood.
6) Deceit.
Essential Element
In an action for this tort the plaintiff must prove the following :-
1) That there was a contract between him and a third person.
2) That the defendant had procured breach of it knowingly and without sufficient justification.
1. Contract.-Any valid and enforceable contract can found all action upon subsequent interference with it. If there is no breach of a contract the defendant will not be liable. Where the contract is void any interference with such contract is not actionable.
2. Breach of contract.-No action under this head can lie unless a breach of contract occurred. If a contract is determinable by other party at pleasure, if is not actionable if a defendant induces a party to determine that contract for there has been no breach but merely a lawful determination of contract. Even through the defendant is not responsible for the initial breach of contract he will be liable if he is responsible for continuing the breach of a still subsisting contract. Thus to continue to induce men to continue strikes when they originally out voluntarily on strike, is a tort, if and only if, their original contacts have not expired when the defendant intervened. Similarly when the defendant had engaged a servant in ignorance of an existing contract of a service, between the servant and the plaintiff he was held liable to continue to employ him after horning the facts.
3)Knowledge of contract.-The defendant must be shown to have had actual or constructive knowledge not only of the contract itself but also of the particular terms if it which have been broken. Common knowledge about the way the business is conducted would be sufficient constructive knowledge.
4)Damage to plaintiff.-Mere breach of a contract is not necessary but it must be proved that the breach of contract had caused damage to the plaintiff or at least that damage can be inferred from the circumstances. If plaintiff fails to prove that damage has been caused to him he cannot succeed in an action for breach of contract.
Definition
When several persons combline or conspire maliciously to injury a person in his trade, business, or employment by intimidating other person and coercing them to act in a certain way it is actionable as conspiracy. In conspiracy it is not necessary that the threat is given for doing an illegal act. But if there is no injury no action can be brought. Conspiracy is both a tort and a crime. The offence of conspiracy is constituted by giving consent to accomplice illegal purpose.
When the combination is to carry on legal act no action can be brought even if injury has been caused to the plaintiff.
In Sorrel v.Smith the plaintiff, who was a retail news agent, has stopped his business to take newspaper from agent 'A' and started taking newspapers from 'W'. The defendants, who was one of the members of Committee of Circulation Managers of London Daily Papers, did not like plaintiff's conduct and coerced, him to start business with 'A'. The threatened that until he starts business with 'A' they would not supply newspapers to him. The Court held that since the defendants had acted with an object of promoting their business interest, therefore, they were not liable. It was also held that in conspiracy the plaintiff has to prove malice on the part of the defendant. Thus in Sorrel v. Smith three principle have been laid down :
1) If a combination of two or more persons is constituted with the object of willfully injuring a man in his trade, it will be an unlawful act and if it results in damage to anybody it will actionable.
2) To induce a person to do an act which he is entitled to do and it results in damage to on other no action can be brought, whatever might have been the motive of the inducer.
3) if the real purpose is to promote his interest as general interest it would net amount to conspiracy unless unlawful means had not been used.
In Huntaley v. Thronton the plaintiff was a member of Union. He refused to comply with the Union's call for strike. The defendant's the Secretary and some members of the union wanted he expulsion of the plaintiff from the union but the executive council of the union decided not to do that. The defendants, acting was out of malice against the plaintiff.
In Quinn v. Lathem the plaintiff was a butcher and the defendants were the officials of a trade union. The defendant requested the plaintiff todischarge those workmen who were not members of the Union. The plaintiff refused to do so. The defendants threatened the plaintiff's chief customer not to purchase meat from him otherwise the customers workmen would be withdrawn. The chief customer was compelled not to purchase meat from the plaintiff resulting in loss to him.
The defendants were held for conspiring maliciously to injury the plaintiff.
The trade Dispute Act, 1906 has now abolished the basis of the Quinn v. Leathem. It declares "An act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act if done without such agreement or combinations would be actionable". In India too the Indian Trade Union Act, 1926 protects registered trade union and their officers from being, sued in respect of any act done in furtherance of a dispute.
There is a tort of conspiracy of the predominant purpose of the combiners was deliberately to inflict damage on the plaintiff. It will not avail the defendants that they have the subsidiary purpose of protecting their own interests. If the predominant purpose is to protect the legitimate trade interests of the defendants, then there is no actionable conspiracy although a subsidiary purpose is to damage the plaintiff.
Crofter hand Wouen Harris Tweed D. Co. v. Veitch is an illustration on the point. The appellants produced tweed cloth in the outer Hlebrides only the weaving of their cloth took place on the island. The imported yarn from the mainland other farms had their cloth spun as well as woven on the land. The respondents V and M, Mere trade union officials of the union to which most of then spinners employed in the island mills belonged. Employers of these men informed V and M that the completion of the appellants prevented them from raising wages. The respondents who were acting in combination with the milk owners instructed dockers at island's port to refuse to handle yarn imported from the main land consigned to the appellants and cloth made by than which they desired to export. Without breaking their contracts the dockers obeyed. The appellants sought to stop this embargo on the ground that it was an actionable conspiracy. They failed on the grounds, that the predominant purpose of the combination was legitimate promotion of interests of the promoters.
In Rajlal Sindhi v. M/s. Kalka and Co. Satna the plaintiff was carrying on business in retailers at satna. The defendant was a wholesaler in cloth and was a member of the Union. The defendant used to borrow cloths from the plaintiff there was some dispute on the amount of interest between them. Consequently the Union passed a resolution and directed all the members of the Union not to lead foods to the plaintiff. The plaintiff pleaded that the above resolution was illegal because it was causing in harm to his business. The defendant claimed that the plaintiff was not entitled to bring action because he not being a member of the Union was not bound by the resolution. No person has a right to borrow goods from anybody and the seller could refuse to give goods an loan. He could by goods from the members of the Union on cash. It was held that the defendants were not liable for conspiracy, as it was done for the protection of his interest which is not an actionable tort. No action can be brought against the act done in the protection of own interest even it caused harm to others.
1.9 INTIMIDATION
Definition
According to Salmond "the wrong of intimidation includes those case in which harm is inflicted by the use of unlawful threats whereby the lawful liberty of others to do as they please is interfered with". This wrong is of two distinct kinds, for the liberty of action so interfered with may be either that of the plaintiff himself or that of other persons with resulting damage to the plaintiff.In other words, the defendant may either intimidate the plaintiff himself, and so compel him to act to his own detriment, or he may intimidate other persons, and so compel them to act to the detriment. The this the defendant gives a threat to the plaintiff to act against his own interests. The essence of the wrong is the use of unlawful threats. The defendant either threatens the plaintiff or compels him to do an act to his detriment. Thus, it is necessary that the a threat to constitute an actionable tort must be unlawful.
Thus it an actionable wrong to compel a person by means of threat of an illegal act, to do some act whereby loss is caused to him. The threats must be made seriously and taken seriously. For example, if a business man is compelled to discontinue his business by means of threats of personal violence made against him by the defendant with that intention an action will lie at the instance of the businessman, or by a creditor who has been threatened by his debtor that he will pay nothing unless the creditor accept to a lessor sum in full settlement. Thus where a uses force to prevent B from carrying out his contract with A can be sued for intimidation by B and for procurement for breach of contrast by C.
Intimidation is always used by illegal acts. To threat to exercise one's legal rights can amount to a cause of action, even if made for the purpose of intimidation or coercion, and even if inspired by malicious motives.
Rooks v. Barnard is an important case on the point. The plaintiff was employed as draughtsman by British Overseas Airways Corporation (BOAC) in their office at London Airport. The defendants were the officials of a registered trade union. The members of the Union had entered into a contract with BOAC that they will not resort to any strike in the event of any dispute. The plaintiff resigned the membership of the Union. On his refusal to rejoin the member of the union in design office passed a resolution and informed the BOAC that if the plaintiff was not dismissed the members of AASD Union will withdraw their labour. The, Corporation officials acceded to the threat and dismissed the plaintiff after giving him due notice. The V did not have any remedy against the BOAC because on their part there was neither any breach of contract nor any commission of tort. Consequently, the plaintiff brought an action against the defendants for wrongfully inducing BOAC to terminate his services. The House of Lords held that the threat to withdraw labour if plaintiff's service were not terminated constituted intimidation and which had caused him loss and. Therefore, the plaintiff was entitled to damage. The House of Lords rejected the argument that in order to constitute intimidation a threat to make a breach of contract is not enough, but it should be accompanied wither with violence or commission of tort.
But if the person whom threat has been given does not act upon it, the plaintiff cannot bring an action for intimidation because no harm is caused to him. The damage caused to the plaintiff must be the direct consequence of the intimidation. Thus, if a threat is given in joke, or it is too whimsical for example, if an ordinary employee of company threatens to leave unless the chairman of the company is removed, or the person threatened is so brave that he does not care for it, no action can be brought.
According to Section 503 of the Indian Penal Code intimidation is a crime. It provides that "whoever threatens another with any injury to his person, reputation or property is to the person or reputation of any one in whom that persons is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that personis legally entitled to don, as the means of awarding the executing such threat, commits criminal intimidation.
UNIT - V
Necessity for consumer protection Law.
Modern age is the age of industrial revolution. The industries are producing various types of goods for the use of consumers in the daily life. There has been a tremendous increase in respect of consumer goods in the country which were hitherto unknown to us two decades before such as, refrigerators, mopeds, scoters, televisions, various types of electronic goods, coolers, heaters, detergents, cosmetics and food articles etc. there is a great demand of these modern products in the society, particularly among the middle class of people of the society. It is interesting to note that most of these products, except some luxury goods, are purchased by low income groups of people in society.
Constitutional obligation of state to protect consumer's interests
In a welfare State the protection of consumer's interests can never be over emphasized. The consumers in India, like in other countries, belong to the unorganized sector. Consequently, united efforts on their part to protect their interest against unscrupulous activities of the trade and business have become almost impossible. This condition of the consumers has not been changed appreciably despite some scattered efforts made by the consumers to protect their interest through co-operation movements and other institutional means.
Product liability under the Law of Tort
According to Dr.Winfield "negligence is the breach of a legal duty to take care which results in damages undesired by the defendant, to the plaintiffs". Thus the following are the essential elements of the tort of negligence:-
1) Duty to take care
2) Breach of duty
3) Damage as a result of breach of duty
The consumer Protection Act, 1986
The consumer Forums and Commission are authorised to give remedy to consumers who suffer injury or loss due to defective products. Under Section 2(f) of the Act "defect" means any fault, imperfection or shortcoming in the quality, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied, or as is claimed by a trader in any manner whatsoever in relation to any goods. Under Section 14 of the Act a district forum is authorised to issue orders to the opposite party directing it to do one or more of the following things:-
1) To remove the defect pointed out by the appropriate laboratory from the goods in question.
2) To replace the good with new goods of similar description which shall be free from any defect
3) To return, to the complainant the price or, as the case may be, the charges paid by the complainant
4) To pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.
5) To remove the defects or deficiencies in the services in question.
6) To discontinue the unfair trade practice or the restrictive trade practice or not to repeat them.
7) Not to offer the hazardous goods for sale.
8) To withdraw the hazardous goods from being offered for sale.
9) To provide for adequate costs to parties.
Object of the Act
The Indian Consumer Act, 1986, is unique in many respects. In no other country, separate courts and tribunals have been established for deciding consumer disputes. But in India separate courts have been set up for deciding consumer disputes. The Consumer Act provides for setting up of quasi-judicial bodies at the district, State and National levels for redressal of consumer disputes. The Act vests concurrent jurisdiction as enjoyed by the established courts. Its objects is to provide inexpensive and speedy justice to the consumer.
In order to achieve this object the Act provides for a simple procedure for deciding cases. For this purpose, it makes provision for the establishment of Consumer Councils at the National level and the State level and in the Union territories for the settlement of consumer disputes and for matter's connected therewith. Thus, it seeks to promote and protect mainly the following rights of consumers :-
1) The right to be protected against marketing of goods which are hazardous to life and property;
2) The right to be informed about the quality, quantity, potency, purity standard and price of goods to
3) protect the consumer against unfair trade practices;
4) The right to be assured, whenever possible, access to an authority of goods at competitive prices;
5) The right to be heard and to be assured that consumer's interests will receive due consideration at
6) appropriate forums;
7) The right to seek redressal against unfair trade practice or unscrupulous exploitation of consumers;
8) and
9) Right to consumer education.
Complainant
Under Section 2(6) of the Consumer Protection Act the following persons can make complaint for 'deficiency in 'goods' and services'-
1) A consumer
2) Any voluntary consumer association registered under the Companies Act, 1956
3) The Central Government or any State Government.
4) 'One or more consumers, where there are numerous consumers having the same interest'.
The complaint should include the following information:-
1) Allegation in writing regarding grievances and the facts giving relevant dates etc.
2) The name, description and address of the complainant and the opposite party i.e. respondent.
3) The documents and affidavit in support of allegation.
4) The relief or compensation asked by the complainant.
5) The complaint should be signed by the complainant or his authroised agent (may be a lawyer).
6) The complaint can be presented, before the concerned forum in person or by post.
What is a Complaint
Under Section 2(e) of the Act means any allegation in writing made by a complainant that:-
1) An unfair trade practice or a restrictive trade practice has been adopted by any trader;
2) The goods bought by him or agreed to be bought by him suffer from one or more defects;
3) The services hired or availed for or agreed to be hired or availed by him suffer from deficiency in any respect;
4) A trader has charged for the goods as mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods;
5) Goods which will be hazardous to life and safety when used, are being offered for sale to the public in contravention of the provision of any law for the time being in force required traders to display information in regard to the content, manner and effect of the use of such goods.
Thus under sub-clause (e) of Section 2 of the Act of jurisdiction of various consumer Forum is limited to the above five categories of subject.
Who is a Consumer
According to the above definition the following persons are consumers-
1) A person who buys goods for a consideration which as been paid or promised or partly paid or partly promised.
2) A person who uses such goods for a consideration paid or permission of the buyer other than who buys such goods for a consideration paid or promised or partly paid or partly promised.
3) A person who, heirs or avails of any services for consideration which has been paid or promised or partly paid and partly promised.
4) A person who is a beneficiary of such services with the approval of the buyer.
Exceptions
1) Obtains goods for commercial purposes:- Under Section 2(1)(d) a person who obtains goods for resale or for any commercial purpose.
2) Services free of charge:- In respect of services rendered free of charge or under contract of personal service.
Hire of Service.
It says that 'service' means "service of any description which is made available to potential users" and includes the provision of facilities in connection which banking, financing, insurance, transport, processing, supply of electrical or other energy, boarding or lodging or both, housing construction, entertainment, amusement or the surveying of news or other information[(Section 2(o)].
What is a consumer dispute?
According to Section 2(e) a "consumer dispute" means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint. Such allegation are the following -
1. Unfair Trade practice
The 'complaint' relating to must be the 'unfair trade practice' of a trader as a result of which the complainant suffered loss or damage.
According to Section 2(r) 'unfair trade practice' means a trade practice which, for the purpose o promoting the sale, use or supply of any goods or for the provision of any service adopts any unfair method or deceptive practice including any of the following practice, namely:-
(1) the practice of making any statement, whether orally or in writing or by visible representation which-
1) falsely represent that the goods are of a particular standard, quality, quantity, grade, composition, style or modes;
2) falsely represent that the services are of a particular standard, quality or grade;
3) falsely represents any rebuit, second-hand, renovated, reconditioned or old goods as new goods;
4) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;
5) represents that the seller or the supplier has a sponsorship, or approval or affiliation which such seller or supplier does not have;
6) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
7) gives to the public any warranty or guarantee of the performance, efficiency or length of life of a product or of any goods that is not based on an adequate or proper test thereof.
2. Restrictive Trade Practice
According to Section 2(nn) "Restrictive Trade Practice" means any trade practice which requires a consumer to buy, hire or avail of any goods or, as the case may be, services as a condition precedent for buying, hiring or availing of the goods or services.
This definition was introduced into the Consumer Protection Act, 1986 by the amendments of 1993. Prior to this, restrictive trade practice cases were decided by the M.R.T.P. Commission under the Monopolies and Restrictive Trade Practices Act, 1969. Now such cases can be filed before the Consumer protection Act, 1986.
3. Defect in goods.
According to Section 2(1)(f) "defect" means "any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or as claimed by the trader in any manner whatever in relation to any goods". The allegation of defect in goods may be made against a trader or government or public undertakings.
4. Deficiency in Service.
According to Section 2(1)(g) "deficiency" means "any fault, imperfection, shortcoming or inadequacy to the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service".
5. Medical practitioners : Hospitals and Nursing Homes
As has been said above, the definition of the term 'service' in Section 2(1)(o)of the Act is a term of very wide import, but in the beginning the courts have taken a very narrow view and held that services provided by the State and local authorities in government hospitals are services rendered free of charge and therefore does not come under the purview of the Act.
5.2 CONSUMER PROTECTION COUNCILS
Central Protection Council (Section 4)
Under Section 4 of the Act the Central Government is empowered, by notification, to establish a Council to be known as the 'Central Consumer Protection Council'.
In exercise of its powers under sub-section (1) of the Act the Central Government has enacted the Consumer Protection Rules, 1987. According to Section 3 and 4 of the Consumer Protection Rules, the Central Protection Council shall consist of the following 150 members -
1) the Minister in charge of consumer affairs in the Central Government who shall be the Chairman of
2) the Central Council;
3) the Minister of State (if not holding independent charge) or Deputy Minister (in charge of Consumer
4) Affairs in the Central Government), who shall be the vice-Chairman of the Central Council;
5) the Minister of Food and Civil Supplies or Minister in Charge of Consumer Affairs in States;
6) 8 members of Parliament five from the Lok Sabha and three from Rajya Sabha;
7) the Secretary of the National Commission for Scheduled Casts and Scheduled Tribes;
8) representative of the Central Government Department and autonomous organizations concerned with
9) consumer interest-not exceeding twenty;
10) representatives of the consumer organisations of consumers not less that thirty-five;
11) representatives of women-not less than ten;
12) representatives of farmers, trade and industries-not exceeding twenty;
13) persons capable of representing consumer interests specified above-not exceeding fifteen.
14) the Secretary in the Department of Civil Supplies shall be the member, secretary of the Central Council.
Term of Members of Council and Resignation, etc:-The term of the members of the Central Council shall be three years. A member may, be writing to the chairman of the Central Council, resign from the Council. The vacancies, so cause or otherwise, shall be filled from the same category by the Central Government. Such person shall hold office so long as the member whose place he fills would have been entitled to hold office.
Procedure for Meeting of Council:-The Central Council shall meet as and when necessary but at least one meeting of the council must be held every year (Section 5).
The Central Council shall meet at such time and place as the Chairman may think fit and shall observe such procedure in regard to the transaction of its business as may be prescribed.
The Central Council shall observe the following procedure in regard to the transaction of its business.
The meeting of the Central Council shall be presided over by the Chairman. In absence of the Chairman, the Vice-Chairman is also absent the Central Council shall elect a member to preside over the meeting of the Council.
Objectives of the Central Council:-The objects of the Central Council shall be to promote and protect the right of the consumers such as:-
1) the right to be protected against marketing of goods and services which are hazardous to life and property;
2) the right to be informed about the quality, quantity, potency, purity, standard and price of goods or services, as the case may be so as to protect the consumer against unfair trade practices;
3) the right to be assured, wherever possible, access to a variety of goods and services at competitive prices;
4) the right to be heard and to be assured that consumer's interests will receive due consideration at appropriate forums;
5) the right to seek redressal against unfair trade practice or restrictive trade practices unscrupulous expiration of consumers; and
6) the right to consumer's education.
5.3 CONSUMER DISPUTES REDRESSAL AGENCIES (S.9)
The Act provides for the establishment of three tier Redressal Agencies for the redressal of consumer disputes known as 'Consumer Disputes Redressal Agencies". Every agency is empowered to entertain complaints from the consumers within its jurisdiction and to provide relief to the consumers. Section 9 of the Act provides for the establishment of the following agencies-
1) District Forum
2) State Commission
3) National Commission
5.3 (1) DISTRICT FORUMS
There shall be established a Consumer Disputes Redressal Forum to be known as the District Forum, by the State Government in each district of the State by notification. The State Government may, if it deems fit establish more than one District Forum in a district (Section 9).
Composition of the District Forum (Section 10)
District Forum shall consist of the following members:-
1) a person who is, or has been, or is qualified to be a District Judge, who shall be its President.
2) two other members, who shall be persons of ability, integrity an standing, and have adequate knowledge or experience of, or have shown capacity in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman.
The member of the District Forum shall be appointed by the State Government on the recommendation of a selection committee consisting of the following persons -
1) the President of the State Commission - Chairman
2) Secretary, Law Department of the State - Member
3) Secretary, Department of Consumer Affairs in the State - Member
Term of Office :- A member of the District Forum shall hold office for a term of five years or upto the age of 65 years, whichever is earlier, and shall not be eligible for re-appointment.
A member of District Forum may resign his office in writing under his hand addressed to the State Government. The Vacancy caused by his resignation may be filled up by the appointment of a category of the member who has resigned.
Salary and allowance of members :-the salary or honorarium and other allowances payable to and the other terms and condition of service of members of the District Forum shall be such as may be prescribed by the State Government.
Jurisdiction of the District Forum (Section 11)
According to Section 11 of the Act, the district Forum shall have jurisdiction to entertain complaints where the value of the good or services and the compensation if claimed does not exceed rupees five lakshs. A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction-
1) The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
2) Any of the opposite parties, where there are more than one, at the time of the institution of the complaints, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case wither the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have branch office, or personally work for gain, as the case may be, acquiesce in such institution, or
3) The cause of action, wholly or in part, arises.
Manner of making complaint (Section 12)
According to Section 12 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 filled with a District Forum by -
1) The 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;
2) Any recognized 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;
3) One or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum on behalf, or for the benefit of all consumers so interested; or
4) The Central or the State Government.
For the purpose of this section, "recognized consumer association", means any voluntary consumer association registered under the Companies Act, 1956, or any other law for the time being in force.
Powers of the District Forum
For the purpose of this section, the District Forum shall have the same powers as are vested in a civil court under the Code of Civil Procedure while trying a suit in respect of the following maters namely-
1) The summoning and enforcing the attendance of any defendant or witness and examining the witness
2) of the oath;
3) The discovery and production of any document or other material object producible as evidence;
4) The reception of evidence on affidavits;
5) The requisitioning of the report of the concerned analysis or test form the appropriate laboratory or
6) from any other relevant source;
7) Issuing or any commission for the examination of any witness; and
8) Any other matter which may be prescribed [sub-section (4)].
Findings of the District Forum (section 14)
Section 14 provides the kinds of relief which can be given to the opposite party who has suffered loss or injury-
1) To remove the defect pointed out by the appropriate laboratory from the goods in question;
2) To replace the goods with new goods of similar description which shall be free from any defect;
3) To return to the complainant the price, or as the case may be, the charges paid by the complainants;
4) To pay such amount as may be awarded by it as compensation to the consumer for any loss or injury
5) suffered by the consumer due to the negligence of the opposite party;
6) To remove the defects or deficiencies in the services in question; to discontinue the unfair trade
7) practice or the restrictive trade practice or not to repeat them;
8) To discontinue the unfair trade practice or the restrictive trade practice or not to repeat them;
9) Not to offer the hazardous goods for sale;
10) To withdraw the hazardous goods from being offered for sale;
11) To provide for adequate costs to parties.
Kinds of Relief to consumers
Section 14 of the Act empowers the Consumer Redressal Authorities of provide one or more of the remedies of it is satisfied that the goods complained against suffer from any of the defects specified in the complaint or there are deficiencies in the service -
1) Removal of defects:-The language of Section 14(1)(a) makes it clear that removal of defects in goods can be ordered by the Redressal Agency only when it has been pointed out by the appropriate laboratory.
2) Replacement of goods:- In those cases where it is impossible to remove the defect without impairing the performance or quality of goods, replacement order cannot be made. The warrantees issued by the manufacturer of goods generally proved that if a defective part cannot be repaired it shall be replaced.
3) Refund of price or charges:-In cases where the removal of defect is not possible for any reason whatsoever, the CDRA (Consumer Dispute Redressal Agency) can make an order for return of price of goods or charges of service to the complainant. The CDRA can make orders for refund of price even in those cases where there is no warranty conferring this right on the complainant.
4) Compensation for loss or injury due to negligence:-Under this clause the Consumer Forums can order the opposite party for payment of compensation for damage caused to the complainant. If he fails to prove negligence he will not be entitled to any relief.
5) In removal of defects or deficiencies in service:-This sub-clause was inserted into section 14 of the Act by the amending Act of 1993. The object of this new sub-clause is to remove the condition imposed by sub-clause (a) of section 14(1) under which the consumer Forums could order for removal of defect or deficiency only in those cases where defect was pointed out by the appropriate laboratory.
6) And (h) Powers to prohibit sale of hazardous goods:-Consumer Forums have power to order a trader not to offer hazardous goods for sale and if such goods have already been offered for sale direct him to withdraw them from sale. These new sub-clauses do not give power to take preventive action against hazardous goods as generally understood.
7) To provide adequate costs to parties:- This new sub-clause enables the Consumer Forums to grant 'adequate' costs to the complainant. This would encourage public spirited individuals or voluntary organisations to bring matters of public interest before the Consumer Redressal Agencies. In such cases they spend money by way of lawyers fee., stationary, typing, etc., and other expenses.
5.4 (2) STATE COMMISSION
In every State a State Commission shall be established for deciding consumer disputes. It shall have three kinds of jurisdiction, original, revisional and appellate. It should hear appeals against the order, of the District Forums within the State. Under its original jurisdiction it shall have jurisdiction to entertain complaints where the value of goods or services for compensation exceeds rupees five lakhs but does not exceed rupees 20 lakhs. It exercises supervisory jurisdiction over all District Forums.
Composition of the State Commission (Section 16)
The State Commission shall consist of-
1) A person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President;
2) No such appointment, can be made without the consultation with the Chief Justice of the High Court;
3) Two other members, who shall be persons of ability, integrity and standing and have adequate knowledge and experience of, or have shown capacity in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs of administration, one of whom shall be a woman.
4) The appointment of the members of the State Commission shall be made by the on the recommendation of a Selection Committee which shall consist of the following members-
1. President of the State Commission - Chairman.
2. Secretary of the Law Department of the State - Member.
3. Secretary, incharge of dealing with consumer affairs in the state - Member.
Term of office:-A member of the State Commission shall hold office for a term of five years or upto the age of 67 years whichever is earlier and shall not be eligible for reappointment. The salary or honorarium and other allowances payable to the members and other terms and conditions of service of the members of the State Commission shall be such as may be prescribed by the State Government.
Jurisdiction of the State Commission (Section 17).
The State Commission shall have the following jurisdictions:-
1) Original
2) Appellate
3) Revisional
(1) Original Jurisdiction :-A State Commission may entertain complaints when the value of the goods or service and compensation claimed exceeds rupees 5 lakhs but does not exceed rupees 20 lakhs.
(2) Appellate Jurisdiction :-The State Commission shall hear appeals against the orders of the District Forum within the State.
(3) Revisional Jurisdiction :- The State Commission has jurisdiction of all District Forums for this purpose, it has power to call for the records and pass appropriate orders in any consumer disputes which is pending before or has been decided by any District Forum within the State where it appears to the State Commission that the District Forum within the State where it appears to the State Commission that the District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.
Appeal against the order of the State Commission (Section 19).
A person aggrieved by an order of the State Commission may prefer an appeal against such order to the National Commission within a period of 30 days from the date of the order in such form and manner as may be prescribed.
5.5 (3) DISTRICT FORUMS
The National Commission is the highest Consumer Redressal Agency in the Country under the Consumer Protection Act. It has original, appeal and revisional jurisdiction. Its jurisdiction extends to the whole of India. It has also administrative control over all State Commissions in India.
Composition of National Commission (Section 20)
The National Commission shall consist of the following members -
1) A person who is or has been a Judge of the Supreme Court to be appointed by the Central Government who shall be its President;
2) Four other members who shall be persons of ability, integrity and standing and have adequate knowledge or exercise of, or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of who shall be a woman.
The President and the members of the Commission shall be appointed by the Central Government. The president shall be appointed only with the consultation of the Chief Justice of India.
The appointment of the other members of the Commission shall be made by the Central Government on the recommendation of a Selecting Committee consisting of the following members -
1) A person who is a Judge of the Supreme Court to be nominated by the Chief Justice of India-
2) Chairman.
3) The Secretary of the Department of Legal Affairs in the Government of India-Member.
4) Secretary of the Department dealing with Consumer affairs.
Salary and Allowances etc. of members
The salary or honorarium and other allowances payable to and the other terms and conditions of service of the members of the National Commission shall be such as may be prescribed by the Central Government.
Terms of office:-The members of the National Commission shall hold office for a term of 5 years or up to the age of 70 years, whichever is earlier and shall not be eligible for reappointment.
Powers of the District Forum
For the purpose of this section, the District Forum Shall have the same powers as are vested in a civil court under the Code of Civil Procedure while trying a suit in respect of the following matters, namely
1) The summoning and enforcing the attendance of any defendant or witness and examining the
2) witness on the oath;
3) The discovery and production of any document or other material object producible as evidence;
4) The reception of evidence;
5) The requisitioning of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
6) Issuing of any commission for the examination of any witness; and
7) Any other matter which may be prescribed [sub-section (4)].
Jurisdiction of the National Commission (Section 21)
The National Commission shall have the following jurisdictions-
1) Original
2) Appellate
3) Revisional or supervisory
1. Original Jurisdiction. The National Commission has original jurisdiction to entertain complaints were the value of goods or services or compensation, it any, claimed exceeds Rs. 20 Lakhs.
2. Appellate Jurisdiction. The National Commission has the jurisdiction to entertain appeals against the orders of any State Commission. The Consumer Protection Rules, 1987 provides the procedure for filing the appeals. Under Rule 15 the memorandum of appeal shall be in legible handwriting preferably typed and set forth concisely under district heads, the grounds of appeal without any argument or narrative and such grounds shall be numbered consecutively.
3. Revisional or Supervisory Jurisdiction. Under Section 21 the National Commission has the jurisdiction to ensure that the State Commissions exercise their jurisdiction within the limits fixed by the law. For this purpose the National Commission has power to call for the records and pass appropriate orders in any consumer dispute pending before it or has been decided by the State Commission where it appears to the National Commission that the State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
Power and Procedure of National Commission (Section 22)
The provisions of Section 12, 12 and 14 and the rules made there under for the disposal of complaints by the District forum shall, with such modifications as considered by the Commission be Applicable to the disposal of dispute by the national Commission.
Power of the review of its decision S.22(2).
The National Commission, without prejudice and as per provisions contained in sub-section (1) of 22, shall have power to review any order made by it, when or where there is an error apparent on the face of record.
Transfer of cases (S.22-B).
This new section empowers the National Commission, on the application of the complainant or on its own motion, to transfer any complaint pending before the District Forum of one State to a District Forum of another State or pending before one State Commission to another State Commission.
Circuit Benches (S. 22-C).
The National Commission shall ordinarily function at new Delhi. But it may perform its functions at such other place as the Central Government may, with the consultation of the National Commission, notify in the Official Gazette from time to time.
Vacancy in the office of the President (S. 22-D)
When the office of President of a District Forum, State Commission is vacant or when the President is unable to perform duties of his office by reason of absence or otherwise, these shall be performed by the senior most member of the District Forum, the State Commission of the national Commission.
Limitation period (Section 24-A)
The right to file complaint is time bound. A complaint cannot be dismissed by the District Forum, the State Commission or the National Commission if it is filed within two years from the date or which the cause of action arose.
Administrative Control (Section 24-B)
The National Commission shall have administrative control over all the Commissions in the following matters -
1) Calling for periodical return regarding institution, disposal and pendency of cases;
2) Issuance of instructions regarding adoption of uniform procedure in the hearing of matters, prior service of copies of documents produced by one party to the opposite parties, furnishing of English translation of judgments written in any language, speedy grant of copies of documents;
Dismissal of frivolous or vexatious complaints (Section 26)
Section 26 provides that where a complaint instituted before the District Forum, the State Commission or the National Commission is found to be frivolous or vexatious, it shall for reasons to be recorded in writing dismiss the complaint and also order the complainant to pay costs to the opposite party to the extent up to Rs. 10,000.
Our aim is to provide a new technology in Education, building professional management structure and molding the physical talents in the field of sports, making our institutions to be first choice of students in India and our union helps you to purpose Education of greater quality to meet the challenge globally.
Our group of Institutions strives to provide an apt platform for our students to portray their varied talents to the fullest extent by imparting quality and comprehensive Education. Our aim is to help every student to discover and realize their potentials.