Unit 1

Introduction to the Law of Torts

The word tort is of French origin and is equivalent of the English
word wrong. It is derived from the Latin word tortum, which means twisted
or crooked. It implies conduct that is twisted or crooked. Tort is commonly
used to mean a breach of duty amounting to a civil wrong.

Salmond defines tort as a civil wrong for which the remedy is a

common law action for unliquidated damages and which is not exclusively
the
breach of a contract or the breach of a trust or other merely equitable
obligation.

A tort arises due to a person’s duty to others which is created by one law or
the other. A person who commits a tort is known as a tortfeaser, or a
wrongdoer. Where they are more than one, they are called joint
tortfeaser. Their wrongdoing is called tortuous act and they are liable to
be sued jointly and severally.

The principle aim of the Law of tort is compensation for victims or their
dependants. Grants of exemplary damages in certain cases will show that
deterrence of wrong doers is also another aim of the law of tort.

Evolution of Law of Torts in India

The law of torts in India is mainly the English law of torts which is based on
the principles of the ‘common law’. This was made suitable to the Indian
conditions in accordance with the principles of justice, equity and good
conscience. However, the application of tort laws in India is not a very
regular event and one can even go to the extent of commenting that tort as
a law in India is far from being looked upon as a major branch of law and
litigation. In the Indian legal system, the concept of ‘punishment’ occupies
a more prominent place than ‘compensation’ for wrongs.

It has been argued that the development of law of tort in India need not be
on the same lines as in England.

In M.C. Mehta v. Union of India, Justice Bhagwati said, “we have to

evolve new principles and lay down new norms which will adequately deal
with new problems which arise in a highly industrialized economy. We
cannot allow our judicial thinking to be constructed by reference to the law
as it prevails in England or for the matter of that in any foreign country. We
are certainly prepared to receive light from whatever source it comes but
we have to build our own jurisprudence.”

Objectives of Law of Torts

 to determine the rights between parties to dispute
 to protect certain rights recognized by law
 to prevent the continuation or repetition of a harm
 to restore the property to its rightful owner

Scope of Tort
Tort & Contract

1. In a contract, the parties fix the duties themselves whereas in torts,

the law fixes the duty.
2. A contract stipulates that only the parties to the contract can sue and
be sued on it (privity of contract) while in tort, privity is not needed in
order to sue or be sued.
3. In the case of contract, the duty is owed to a definite person(s) while
in tort, the duty is owed to the community at large i.e. duty in- rem.
4. In contract remedy may be in the form of liquidated or
unliquidated damages whereas in tort, remedies are always
unliquidated.

Tort & Crime

1. In tort, the action is brought in the court by the injured party to

obtain compensation whereas in crime, proceedings are conducted by
the state.
2. The aim of litigation in torts is to compensate the injured party while
in crime; the offender is punished by the state in the interest of the
society.
3. A tort is an infringement of the civil rights belonging to individuals
while a crime is a breach of public rights and duties, which affect the
whole community.
4. Parties involved in criminal cases are the Prosecution verses the
Accused person while in Torts, the parties are the Plaintiff versus the
Defendant.
Constituents of Tort
The law of tort is an instrument to enforce reasonable behavior and respect
the rights and interests of one another. A protected interest gives rise to a
legal right, which in turn gives rise to a corresponding legal duty. An act,
which infringes a legal right, is wrongful act but not every wrongful act is a
tort.

To constitute a tort or civil injury therefore:

1. There must be a wrongful act or omission.

2. The wrongful act or omission must give rise to legal damage or actual
damage and;
3. The wrongful act must be of such a nature as to give rise to a legal
remedy in the form of an action for damages.

The wrongful act or omission may however not necessarily cause actual
damage to the plaintiff in order to be actionable. Certain civil wrongs are
actionable even though no damage may have been suffered by the plaintiff.

01. Wrongful Act

An act or omission that prejudicially affect one’s legal right. Such legally
violative wrongful act is called as actus reus. Thus, liability for a tort arises
when the wrongful act amounts to either an infringement of a legal private
right or a breach.

An act, which at first, appears to be innocent may become tortuous if it

invades the legal right of another person e.g. the erection in one’s own land
which obstructs light to a neighbors’ house. Liability for a tort arises when
the wrongful act amounts to an infringement of a legal right or a breach.

02. Damage

The sum of money awarded by court to compensate damage is

called damages. Damage means the loss or harm caused or presumed to
be suffered by a person as a result of some wrongful act of another. Legal
damage is not the same as actual damage.

The real significance of legal damage is illustrated by two maxims namely:

Injuria sine damno and Damnum sine injuria
Injuria sine damno (Injury without damage)

It means violating of a legal right without causing any harm, loss or damage
to the plaintiff. There are two kinds of torts: firstly those torts which are
actionable per se, i.e. actionable without the proof of any damage or loss.
For instance, trespass to land, is actionable even though no damage has
been caused as a result of the trespass.

Secondly, the torts which are actionable only on the proof of some damage
caused by an act. For successful actions the only thing which has to be
proved is that the plaintiff’s legal right has been violated, i.e. there is injuria.

Case Law: Refusal to register a voter was held as and injury per-se even
when the favorite candidate won the election – Ashby Vs. White (1703).
This rule is based on the old maxim of law, Ubi jus ibi remedium, which
means that where there is a right, there is a remedy.

Damnum sine injuria (Damage without injury)

It means “There may be an injury inflicted without any act of injustice.”

There is another term like it that is “damnum absque injuria“, which
means damage or harm without an injury in the legal sense. In other words
a loss or injury to someone which does not give that person a right to sue
the person causing the loss.

Case Laws:

In the case of Mayor & Bradford Corporation Vs. Pickles (1895), Pickles
was annoyed by the refusal of Bradford Corporation to purchase his land
for their water undertaking. Out of spite, he sank a shaft on his land, which
had the effect of discoloring and diminishing the water of the Corporation,
which percolated through his land. The House of Lords held that the action
of Pickles was lawful and no matter how ill his motive might be he had a
right to act on his land in any manner that so pleases him.

In the case of Mogul Steamship Co. Vs. Me-Gregory (1892). Certain ship
owners combined together. In order to drive a ship-owner out of trade by
offering cheap freight charges to customers who would deal with them. The
plaintiff who was driven out of business sued the ship-owner, for loss
caused to him by their act. The court held that a trader who is ruined by
legitimate competition of his rivals could not get damages in tort.
03. Remedy – Development of Ubi jus ibi Remedium

The law of torts is said to be a development of the maxim ubi jus ibi
remedium (there is no wrong without a remedy). Whenever the common
law gives a right or prohibits an injury, it also gives a remedy. It is an
elementary maxim of equity jurisprudence that there is no wrong without a
remedy.

The maxim means only that legal wrong and legal remedy are correlative
terms.

A tort is a civil injury, but all civil injuries are not torts. The wrongful act
must come under the category of wrongs for which the remedy is a civil
action for damages. The essential remedy for a tort is an action for
damages, but there are other remedies also e.g., injunction, restitution, etc.

Case Law:

In the case of Abbot v. Sullivan, the court held that there is a right to
receive a time-barred debt but there is no remedy to recover it.

Foundations of Tortious Liability

Tortious liability arises from the breach of a duty primarily fixed by the law:
such duty is towards persons generally and its breach is compensated by
an action for unliquidated damages.

• Theory 1: By Winfield – Law of Tort – General Liability: all injuries

done to another person are torts, unless there be some justification
recognized by the law

• Theory 2: By Salmonds – Pigeon Theory – Law of Torts: there is a

definite number of torts (assault, battery, defamation) outside which liability
in tort does not exist

Case Law:

Rougher, J., described in the case of John Munroe (Acrylics) Ltd. v.

London Fire and Civil Defence Authority, “It is truism to say that we live
in the age of compensation. There seems to be a growing belief that every
misforture must, in pecuniary terms at any rate, be laid at someone else’s
door, and after every mishap, the cupped palms are outstretched for the
solace of monetary compensation.”

General Elements of Torts

Act & Omission
To constitute a tort, there must be a wrongful act. The word “act” is used to
include both positive and negative acts i.e., acts and omissions. Wrongful
acts which make a person liable in tort are positive acts and sometimes
omissions. They must be distinguished from natural calamities, and even
from mere thoughts and intentions.

Failure to do something in doing an act is a bad way of performing the act.

For example, if a lawyer gives an opinion without taking notice of the
change in law brought about by a reported decision of the Supreme Court,
he would not be guilty of an omission but of performing the act of giving his
opinion in a bad way.

Where as an omission is failure to do an act as a whole. Generally, the law

does not impose liability for mere omissions. An omission incures liability
when there is a duty to act. For example, a person cannot be held
responsible for the omission of not rescuing a stranger child whom he sees
drowning even though he can rescue him without any appreciable exertion
or risk of harm to himself. But the result would be different if a parent or
guardian is failed to attempt to rescue the child. In that case, it would be an
omission as there is a duty to act.

Voluntary Acts & Involuntary Acts

A voluntary act may be distinguished from an involuntary act as only
voluntary acts have liability. Voluntary act can be understand based on its
willed mascular contraction, its circumstances and its consequences. For
example, an act of murdering a person by shooting at him is one act and
not merely the muscular contraction of pressing the trigger.

An involuntary act does not give rise to any liability. For example, an
involuntary act of trespass is not a tort.

Omissions like positive acts may also be voluntary or involuntary.

In the case of Olga Tellis v. Bombay Municipal Corporation, the
Supreme Court held that the encroachments committed by those persons
are involuntary acts in the sense that those acts are compelled by
inevitable circumstances and are not guided by choice.

Mental elements
A voluntary act can be held in strict liability if there’s a presence of required
mental element i.e., malice, intention, negligence or motive in addition to
the other necessary ingredients of the torts are present.

O MALICE IN LAW AND IN FACT

Malice means spite or ill-will. However, in law malice has two distinct
meanings such as: 1. Intentional doing of a wrongful act and 2. Improper
motive. In the first sense, malice is synonymous with intention and in the
second sense, malice refers to any motive which the law disapproves.

Malice with an intention of wrongful act is called as Malice in Law. It is also

called as implied malice. In a legal sense, malice means a wrongful act,
done intentionally, without just cause or excuse. For example, if a person
give a perfect stranger a blow likely to produce death, the person do it out
of malice because, he do it intentionally and without just cause or excuse.

Malice with an improper motive is called as Malice in fact. It is also called

as express malice. Malice in fact is liable for malicious prosecution.

Wrongful acts of which malice is an essential element are:

 Defamation
 Malicious prosecution
 Willful and malicious damage to property

O INTENTION, NEGLIGENCE AND RECKLESSNESS

Intention is an internal fact, something which passes in the mind and direct
evidence of which is not available. There’s a popular saying that it is
common knowledge that the thought of man shall not be tried, for the devil
himself knoweth not the thought of man.

In general terms, negligence is “the failure to use ordinary care” through

either an act or omission. That is, negligence occurs when:
 somebody does not exercise the amount of care that a reasonably
careful person would use under the circumstances; or
 somebody does something that a reasonably careful person would
not do under the circumstances.

In the case of Dulieu Vs. White & Sons (1901), the plaintiff, a pregnant
woman, was sitting behind the counter of her husband?s bar when
suddenly a horse was driven into the bar. Fearing her personal safety, she
suffered nervous shock and gave birth to a premature baby. In the
circumstances, the court held that the plaintiff was entitled to recover in
negligence.
Recklessness is also called as gross negligence. Gross negligence means
conduct or a failure to act that is so reckless that it demonstrates a
substantial lack of concern for whether an injury will result. It is sometimes
necessary to establish “gross negligence” as opposed to “ordinary
negligence” in order to overcome a legal impediment to a lawsuit. For
example, a government employee who is on the job may be immune from
liability for ordinary negligence, but may remain liable for gross negligence.
O MOTIVE
Motive is the ulterior object or purpose of doing an act. It differs from
intention in two ways. First, intention relates to the immediate objective of
an act, whereas, motive refers to the ulterior objective. Secondly, motive
refers to some personal benefit of satisfaction which the actor desires
whereas intention need not be so.

For example, When A poisons B, the immediate objective is to kill B and so

this is A’s intention. The ulterior objective of A may be to secure B’s estate
by inheritance or under a will executed by him and this objective will be A’s
motive. Motive is generally irrelevant in tort.

In the case of Mayor & Co. of Bradford v. Pickles, A sank a well on his
land and thereby cut off underground water-supply from his neighbour B,
and B’s well was dried up. It was not unlawful for a land-owner to intercept
on his own land underground percolating water and prevent it from
reaching the land of his neighbour. The act did not become unlawful even
though A’s motive in so doing was to coerce B to buy his land at his own
price. A, therefore, was not liable to B, however improper and malicious his
motive might be.

O MALFEASANCE, MISFEASANCE, NON-FEASANCE

The term “Malfeasance” applies to the commission of an unlawful act. It is
generally applicable to those unlawful acts, such as trespass, which are
actionable per se and do not require proof of intention or motive.

The term “Misfeasance” is applicable to improper performance of some

lawful act for example when there is negligence.

The term “non-feasance” applies to the omission to perform some act

when there is an obligation to perform it. Non-feasance of gratuious
undertaking does not impose liability, but misfeasance does.

 M.C. Mehta v. Union of India

O FAULT
If mental elements such as intention, negligence, malice or motive together
with an act or omission which is violative of a right recognized by law plays
an important role in creating liability. Such tortious liability has an element
of fault to support it. But there is a sphere of tortious liability which is known
as absolute or strict liability, where the element of fault is conspicuously
absent.

In the case of M.C. Mehta v. Union of India, the rule of strict liability is laid
down that an enterprise engaged in a hazardous or inherently dangerous
activity is strictly and absolutely liable for the harm resulting from the
operation of such activity.

Study Notes on Law of Torts – UNIT II

General Defenses
Justification of Torts
O ACT OF STATE
An act of State is outside the ordinary law, it is essentially an exercise of
sovereign power as a matter of policy or political expediency. For example,
when the person or the property of a person who is not a British-subject
and who is not residing in British territory is injured by an act “done by any
representative of Her Majesty’s authority, civil or military, and which is
either previously sanctioned or subsequently ratified by Her Majesty, the
person injured has no remedy for such an act is an act of State.
In the often quoted case of Buron v. Denman, the defendant, a captain in
the Royal Navy, released the slaves and set fire to the slave barracoons of
the plaintiff, a Spaniard, on the West coast of Africa, outside British
dominions. The defendant originally had no authority but his act was ratified
by the Crown. It was held that the plaintiff had no remedy against
the defendant.

O JUDICIAL ACTS
The Judicial Officers Protection Act, 1850 – Under this Act, no Judge,
Magistrate, Justice of the Peace, Collector, or other person acting judicially,
can be sued in any Court, for any act done by him in the discharge of his
judicial duty. Provided that such acts were done in good faith.

O EXECUTIVE ACTS
The State and its officers are not liable when the wrongful act falls within
the purview of Act of State. The State is also vicariously liable for torts
committed by its officers in the course of employment except when they are
committed while discharging traditional sovereign functions.

 State of Rajasthan v. Prakash Chand

O VOLENTI NON FIT INJURIA – LEAVE AND LICENCE

The general rule is that a person cannot complain for harm done to him if
he consented to run the risk of it. For example a boxer, foot baler, cricketer,
etc cannot seek remedy where they are injured while in the game to which
they consented to be involved. Where a defendant pleads this defense, he
is in effect saying that the plaintiff consented to the act, which he is now
complaining of. It must be proved that the plaintiff was aware of the nature
and extent of the risk involved.

In the case of Khimji Vs Tanga Mombasa Transport Co. Ltd (1962), the
plaintiffs were the personal representatives of a deceased who met his
death while traveling as a passenger in the defendant’s bus. The bus
reached a place where road was flooded and it was risky to cross. The
driver was reluctant to continue the journey but some of the passengers,
including the deceased, insisted that the journey should be continued. The
driver eventually yielded and continued with some of the passengers,
including the deceased. The bus got drowned together with all the
passengers aboard. The deceased’s dead body was found the following
day.
It was held that the plaintiff’s action against the defendants could not be
maintained because the deceased knew the risk involved and assumed it
voluntarily and so the defense of Volenti non fit injuria rightly applied.

O ADMINISTRATIVE ACTS
 Dunlop v. Woolhara Municipal Council

O ACTS OF GOVERNING BODY

O PARENTAL & QUASI-PARENTAL AUTHORITY
 Sankunni v. Swaminatha Pattar

O AUTHORITIES OF NECESSITY
 Lamb v. Burnett

O STATUTORY AUTHORITY
When the commission of what would otherwise be a tort, is authorized by a
statute the injured person is remediless, unless so far as the legislature has
thought it proper to provide compensation to him. The statutory authority
extends not merely to the act authorized by the statute but to all inevitable
consequences of that act. But the powers conferred by the legislature
should be exercised with judgment and caution so that no unnecessary
damage is done, the person must do so in good faith and must not exceed
the powers granted by the statute otherwise he will be liable.

In the Case of Vaugham Vs. Taffvale Railway Co. (1860), A railway

company was authorized by statute to run a railway, which traversed the
plaintiff’s land. Sparks from the engine set fire to the plaintiff’s woods. It
was held that the railway company was not liable. It had taken all known
care to prevented emission of sparks. The running of locomotives was
statutorily authorized.

O INEVITABLE ACCIDENT
This means an accident, which cannot be prevented by the exercise of
ordinary care, caution or skill of an ordinary man. It occurs where there is
no negligence on the part of the defendant because the law of torts is
based on the fault principle; an injury arising out of an inevitable accident is
not actionable in tort.
In the case of Stanley Vs. Powell (1891), the plaintiff was employed to
carry cartridge for a shooting party when they had gone pheasant-shooting.
A member of the party fired at a distance but the bullet, after hitting a tree,
rebounded into the plaintiff’s eye. The plaintiff sued. It was held that the
defendant was not liable in the light of the circumstance of inevitable
accident.

O ACT OF GOD
This is also an inevitable accident caused by natural forces unconnected
with human beings e.g. earthquake, floods, thunderstorm, etc.

In the case of Nichols Vs. Marshland (1876), the defendant has a number

of artificial lakes on his land. Unprecedented rain such as had never been
witnessed in living memory caused the banks of the lakes to burst and the
escaping water carried away four bridges belonging to the plaintiff. It was
held that the plaintiff’s bridges were swept by act of God and the defendant
was not liable.

O NECESSITY
Where intentional damage is done so as to prevent greater damage, the
defense of necessity can be raised. Sometimes a person may find himself
in a position whereby he is forced to interfere with rights of another person
so as to prevent harm to himself or his property.

In the case of Esso Petroleum Ltd. Vs. Southport Corporation (1956), it

was held that the safety of human beings belongs to a different scale of
value from the safety of property. These two are beyond comparison and
the necessity for saving life has all times been considered, as a proper
ground for inflicting such damage as may be necessary upon another’s
property.

O PRIVATE DEFENCE
Everyone has a right to defend his person, property and family from
unlawful harm. A person who is attacked does not owe his attacker a duty
to escape. Everyone whose life is threatened is entitled to defend himself
and may use force in doing so. The force used must be reasonable and
proportionate to that of the attacker. Normally, no verbal provocation can
justify a blow

 Morris v. Nugent
O PLAINTIFF A WRONG DOER
 Bird v. Holbrook
 National Coal Board v. England
 Pitts v. Hunt

O ACTS CAUSING SLIGHT HARM

 Holford v. Bailey

Vicarious Liability
Liability for wrongs committed by others. Generally, a person is liable for
his own wrong doings.

Liability By Ratification
 In the course of authority
 Should be made by principal with full knowledge about the wrongful
act
 illegal and unlawful acts cannot be ratified

Liability By Relationship between the two (Master &

Servant)
MASTER-SERVANT: WHEN MASTER IS LIABLE
 Dharangadhara Chemical Works Ltd. v. State of Sourashtra
 Mersey Docks and Harbour Board v. Coggins & Griffith (Liver Pool)
Ltd.
  Lllyod v. Grace Smith Co.
 Gregory v. Piper
 Bayley v. Manchester Rly. Co.
  Lionpus v. London General Omni Bus Co.
 Ricett v. Thas Trilling

Master-Servant: When Master is not Liable

 Williams v. Jones
 Storey v. Ashton
 Paulton v. London & S.W. Rly. Co.
 General Engg. Services Ltd. v. Kingston Cheshire
MASTER-INDEPENDENT CONTRACTOR
PRINCIPAL-AGENT
COMPANY & DIRECTORS
PARTNERSHIP FIRMS & PARTNERS
GUARDIAN & WARD
Liability By Abetment
In actions of wrong, those who abet the tortious acts are equally liable with
those who commit the wrong. A person who procures the act of another is
legally responsible for its consequences

1. If he knowingly and for his own ends induces that other person to
commit an actionable wrong, or
2. when the act induced is within the right of the immediate actor and,
therefore, not wrongful so far as the actor is concerned, but is
detrimental to a third party and the inducer procures his object by the
use of illegal means directed against that third party

Study Notes on Law of Torts – UNIT III

Legal Remedies
There are two kinds of remedies for torts such as judicial remedies and
extra-judicial remedies.

 Judicial remedies: afforded by the Courts of law. Damages and

injunctions are different form of remedies against the same wrong.

1. awarding of damages
2. granting of injunction
3. specific restitution of property

Extra-judicial remedies: available to a party, in certain cases of torts, by

his own acts alone. These remedies are in the nature of self-help, should
not be normally resorted to, for the person resorting to them may frequently
exceed his rights and may be faced with a case civil or criminal alleging
that he the law in hjis own hands. It may also give rise to law and order
problems.

1. expulsion of trespasser
2. re-entry on land
3. recaption of goods
4. distress damage feasant
5. abatement of nuisance

1. Damages
A. INTRODUCTION
Generally, pecuniary compensation will be awarded for the injury or
damaged caused to the plaintiff by the wrongful act of the defendant. There
will be three important question put forth before the Court. They are: 1. the
damaged caused by the defendant’s wrongful act, 2. remoteness, and 3.
monetary compensation for the damages.

B. CAUSATION: THEORY OF DIRECTNESS

If the damage alleged was not caused by the defendant’s wrongful act the
question of its remoteness will not arise. Generally accepted test is ‘but for’
test to determine if the wrongful act is caused by the defendant’s action. If
the damage would not have resulted but for the defendant’s wrongful act, it
would be taken to have been caused by the wrongful act.

The ‘but for’ test is not of universal application and a lesser degree of
causal test may be applied in special circumstances to prevent injustice.

Case Laws:

In Robinson v Post Office, the plaintiff, who was employed by the Post
Office, slipped as he was descending a ladder. The ladder had become
slippery due to negligence of the employer. The plaintiff sustained a wound
on his left shin. Later, he visited doctor and the administered A.T.S (anti-
tetanusserum). Small quantity of the drug should be injected before the full
dose. Instead, the doctor gave the full dose. The plaintiff suffered
encephalities after the 3 days which is  a rare possibility of full-dose A.T.S.

Found: It was found that the doctor was not negligent in deciding to inject
A.T.S. His negligence lay in not waiting for half an hour after the test dose.

Repolemi’s Case
Scott v Shepheard

Hayne’s v Harwood

C. REMOTENESS: THEORY OF REASONABLE CAUSE

i. Foreseability

Case Laws:

Wagon Mound No. 1 Case

Wagon Mound No. 2 Case

Hughes v Lord Advocate

ii. Intended Consequences

Case Laws:

Scott v Shepherd

iii. “Eggshell Skull” cases

Case Laws:

Smith v Leech Brain & Co. Ltd.

iv. Intervening acts or events: Novus actus intervenients

Lamb v Camden London Borough

iv-a. A Summary of principles in considering remoteness

Corr v IBC Vehicle

v. Mitigation of Damage
Selvanayagam v University of West Indies

vi. Further Examples

D. MEASURE OF DAMAGES
I. GENERAL PRINCIPLE
II. CONTEMPTUOUS, NOMINAL, ORDINARY AND
EXEMPLARY DAMAGES
Thompson v Commissioner of Police

III. GENERAL AND SPECIAL DAMAGES

IV. PROSPECTIVE AND CONTINUING DAMAGES
V. DAMAGES FOR MENTAL SUFFERING AND
PSYCHIATRIC INJURY OR NERVOUC SHOCK
White v Chief Constable of South Yorkshire

VI. DAMAGES IN AN ACTION FOR PERSONAL INJURIES

 a. Non-pecuniary Loss
 b. Pecuniary Loss
 c. Interest
 d. Illustration

VI-A. DAMAGES FOR UNWANTED PREGNANCY

RESULTING FROM MEDICAL NEGLIGENCE
McFarlane v Tayside Health Board

VII. INJURY TO PROPERTY

E. INTERIM DAMAGES
F. COMPENSATION UNDER SEC. 357 CR. P.C
Case Laws:

Harikrishnan and State of Haryana v Sukhbir Singh

F1. COMPENSATION TO RAPE VICTIONS
Delhi Domestic Working Women’s Forum v Union of India

G. PROVISIONAL AWARD
Case Laws:

Nagappa v Gurudayal Singh

H. DAMAGES IN ACTIONS OF CONTRACT AND OF TORT

2.Injunction
3. Specific Restitution
4. Joint and Several Tort-Feasors
Case Laws:

T.O. Anthony v Karvarnan

5. Contribution between Wrong-Doers

Case Laws:

Merryweather v Nixan

6. Remedies under the Constitution

 

Study Notes on Law of Torts – UNIT IV

Torts affecting body
Assault
Battery
Mayhem
False Imprisonment
Torts affecting reputation
Libel
Slander
Torts affecting freedom
Malicious Prosecution
Malicious Civil Action and Abuse of Legal Process;
Torts affecting domestic and other rights
Marital Rights
Parental Rights
Rights to Service
Contractual Rights
Intimidation and Conspiracy
Torts against property
WHAT IS LIBEL? HOW IT DIFFERS FROM SLANDER?
WHAT CONSTITUTES FALSE IMPRISONMENT? EXPLAIN
VARIOUS DEFENSES AVAILABLE TO A DEFENDANT IN
CASE OF FALSE IMPRISONMENT.
DISCUSS THE ESSENTIALS OF DEFAMATION WITH THE
HELP OF DECIDED CASES.
DEFINE ASSAULT AND DISTINGUISH IT FROM BATTERY.
DEFINE ‘ASSAULT’ AND DISTINGUISH IT FROM
‘BATTERY’.
DEFINE DEFAMATION. DISCUSS BRIEFLY THE VARIOUS
DEFENSES AVAILABLE IN AN ACTION FOR
DEFAMATION.
DISCUSS ‘ASSAULT’ AND ‘BATTERY’ WITH THE HELP OF
CASES.
WHAT IS ‘MALICIOUS PROSECUTION’? EXPLAIN WITH
ESSENTIALS.
RAHIM ASSAULTED BURON. BURON BROUGHT AN
ACTION AND RECOVERED DAMAGES FOR THE
ASSAULT. AFTER SOMETIMES BURON HAD TO HAVE A
BONE REMOVED FROM HIS SKULL BECAUSE OF
INJURIES HE HAD RECEIVED; HE THEN BROUGHT
ANOTHER ACTION IN RESPECT OF THIS INJURY. IS
RAHIM LIABLE?
‘SHAM’ IS FAST ASLEEP IN A ROOM AND ‘RAM’ CLOSES
THE MAIN DOOR OF THE ROOM FROM OUTSIDE AND
OPENS IN BEFORE ‘SHAM’ WAKES UP. WHETHER ‘RAM’
IS GUILTY OF FALSELY IMPRISONING ‘SHAM’, WHILE HE
IS ASLEEP?
WRITE A SHORT NOTE ON: MALICIOUS PROSECUTION
INTIMIDATION
A FAMOUS BISCUIT COMPANY PUBLISHED A PICTURE
IN A NEWSPAPER SHOWING ONE FAMOUS CRICKET
PLAYER SACHIN EATING THEIR BISCUIT. ADVISE HIM
ABOUT HIS LEGAL REMEDIES.
A CAT STRAYED FROM ITS OWNER’S LAND INTO THE
LAND OF A NEIGHBOUR AND KILLED BIRDS KEPT
THERE. IS THERE OWNER OF CAT LIABLE?
SHORT NOTE ON INNUENDO
FALSE IMPRISONMENT

Study Notes on Law of

Torts: Consumer Protection Act, 1986 –
UNIT V
Consumer Protection Act, 1986
WHAT ARE THE OBJECTS OF THE CENTRAL CONSUMER
PROTECTION COUNCIL?
The Central Council is an important and potential body for the development
of consumer movement, and also helpful for the protection of consumers. It
plays a catalyst role in the consumer movement and educates the
consumers. The Council plays a vital role in creating consumer awareness.
The objectives of the Central Council is to promote and protect the
rights of the consumers such as:-

 Protect the consumer rights

 Promote the consumer development in the Country
 Investigates and makes police recommendations on the legislative
and administrative action in the interests of consumers
 Give wide publicity among consumers
 Function as a catalyst in the consumer protection programme.
 Only recommendary in nature
 the right to be protected against the marketing of goods and services
which are hazardous to life and property
 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
 the right to be assured, wherever possible, access to a variety of
goods and services at competitive prices
 the right to be heard and to be assured that consumer’s interests will
receive due consideration at appropriate forums
 the right to seek redressal against unfair trade practices or restrictive
trade practices or unscrupulous exploitation of consumers; and
 the right to consumer education.

EXPLAIN THE COMPOSITION, POWERS AND

JURISDICTION OF NATIONAL COMMISSION.
National Commission is also called as National Consumer Disputes
Redressal Commission

The objective of the National Commission are to render legal remedies to

the aggrieved consumers and to protect from exploitation and dangers.

The decisions of the National Commission have binding force through out
the country. They have the power of precedent and binding force on the
lower courts, except Supreme Court. It is the highest judicial authority in the
field of consumer disputes.

The State Commissions and the District Consumer for a shall have to
follow the decisions of the National Commission

It is a quasi-judicial authority, filled by the judicial and non-judicial

members. It functions as a court.
It is the highest authority in the Consumer Disputes Redressal Agencies. It
can hear appeals from the District Consumer Forums and State
Commissions. The violators of its decisions shall be punished under the
contempt of court proceedings.

The National Commission shall have to work on all the working hours and
working days as a Central Government Department Works.

“SERVICES”, UNDER THE CONSUMER PROTECTION

ACT, 1986.
STATE THE PROCEDURE TO BE FOLLOWED BY THE
DISTRICT CONSUMER FORUM ON THE RECEIPT OF A
COMPLAINT.
Jurisdiction of District Forum
1) – Subject to the other provisions of this Act, the District Forum shall have
jurisdiction to
entertain complaints where the value of the goods or services and the
compensation, if any, claimed does not exceed rupees twenty lakhs.
2) – A complaint shall be instituted in a District Forum within the local limits
of whose jurisdiction:-

a) – 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

b) – any 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, provided that in such case either the
permission of the District Forum is given, or the opposite parties
who do not reside, or carry on business or have a branch office, or
personally work for gain, as the case may be, acquiesce in such
institution; or

c) – the cause of action, wholly or in part, arises.

EXPLAIN IN DETAIL THE COMPOSITION,

APPOINTMENT AND JURISDICTION OF STATE
COMMISSION.
 State Commission is popularly known as Consumer Disputes
Redressal Commission

Sections 16 to 19 of Chapter III of the Act explain the provisions

about the composition, jurisdiction, procedure, vacancies,
appeals, etc., of the State Commission. Each State is authorized
by its State Consumer Protection Rules to establish one State
Commission for its territory.

The objects of State Commission are to protect the consumers’r

rights by redressing. It is a redressal agency.

The decisions of the State Commission are just like the judgments
of High Court. They are legal remedies to the aggrieved
consumers. The decisions should be implemented. The persons
who violate the decisions are liable under contempt of court
proceedings.

It is a quasi-judicial authority, filled up by judicial and non-official

members. Its decisions are binding on District Consumer Forums.
They have the power of precedent.

The State Commission has appellate powers. It can hear the

appeals from the District Consumer Forums. Moreover, the
aggrieved party from the decisions of the State Commission can
appeal to the National Commission

The State Commission shall have the working hours and working
days just like as a State Government Department and a court.

Jurisdiction of National Council

Subject to the other provisions of this Act, the National
Commission shall have jurisdiction—

a) – to entertain

i) complaints where the value of the goods or services and

compensation, if any, claimed exceeds rupees one crore; and

ii) appeals against the orders of any State Commission

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

WHO IS CONSUMER? EXPLAIN THE

OBJECTIVES OF THE CONSUMER
PROTECTION ACT 1986
The intention and object of the Consumer Protection Act, is
to provide a speedy remedy and for better protection of
interests of consumer.

The Consumer Protection Act, 1986 has defined the term

CONSUMER. Only the complainant who falls under the
definition of Consumer can be benefited through Consumer
Protection Act. Hence the definition of CONSUMER is of
much importance to determine the applicability of the Act.

CONSUMER AS DEFINED U/SEC 2(1)(D) OF

THE ACT:
“Consumer” means any person who-

Buys any goods for a consideration which has been

paid or promised or partly paid and partly promised,
under any system of deferred payment, and includes
any user of such goods when such use is made with the
approval of such person, but does not include a person
who obtains such goods for resale or for any
commercial purpose.

Explanation: “commercial purpose” does not include use by

a consumer of goods bought and used by him exclusively
for the purpose of earning his livelihood, by means of self-
employment;

COMPLAINT.
WHO CAN A FILE A COMPLAINT?
 A consumer (As above)
 Any registered voluntary consumer organisation
 The Central Government
 The State Government

WHEN CAN A COMPLAINT BE FILED?

Under the Act, a complaint can be made in writing in the
following circumstances:

 If you have suffered loss or damage as a result of any

unfair trade practices adopted by the trader.
 If the services hired/availed of suffer from deficiencies in
any respect.
 If you have been charged a price in excess of the price
displayed or fixed by or under any law for the time being
in force.
 If, the goods hazardous to life and safety, when used.

How can you file?

The complaint is to be filed within two years from the date

on which cause of action has arisen

There is no fee for filing a complaint. Even an affidavit does

not need stamp papers. A complaint can be sent by post or
presented in person by complaint or his authorised agent.

Usually the Forums Require 3-5 copies of complaint.

WHAT INFORMATION SHOULD A COMPLAINT

CONTAIN?
Complaint should contain the following information:

 Name and complete address of complainant

 Name and complete address of the opposite party or
parties as the case may be.
 Date of purchase/service obtained.
 Amount paid for consideration.
 Items of goods with quantities/nature of service.
 Whether the complaint relate to unfair trade
practice/defective goods’ deficient service/charging
excess price.
 Copies of bills/vouchers/receipts and copies of
correspondence made, if any.
 The relief sought-Under the Act.

SHORT NOTE ON APPEALS

District Forum ————– Within 30 days —— In State
Commission

State Commission ——— Within 30 days —— National

Commission

National Commission —— Within 30 days —— Supreme

Court

There is no fee for filing appeals in the State and National

commissions.

Procedure is the same as that complaint except that the

application has to be accompanied by the copies of the
orders appealed against with reasons for filing appeals.

SHORT NOTE ON SERVICE

Service of any description such as banking, insurance,
transport, processing, housing construction, supply of
electrical energy, entertainment, board or lodging.

WRITE A SHORT NOTE ON: DEFICIENCY IN

SERVICE.
RESTRICTIVE TRADE PRACTICE
Section 2(1) (nnn) of CPA [As amended by Amendment Act,
2002] define Restrictive Trade Practice (‘RTP’) as one which
tends to bring about manipulation of price or its conditions of
delivery or to affect flow of supplies in the market relating to
goods or services in such a manner as to impose on the
consumers unjustified costs or restrictions and shall include
—
(a) delay beyond the period agreed to by a trader in supply
of such goods or in providing the services which has led or
is likely to lead to rise in the price; (b) any trade practice
which requires a consumer to buy, hire or avail of any goods
or, as the case may be, services as condition precedent to
buying, hiring or availing of other goods or services.

Unfair Trade Practice

Unfair Trade Practice is defined under section 2(1)(r) of CP

Act. “Unfair trade practice” means a trade practice which, for
the purpose of promoting the sale, use or supply of any
goods or for the provision of any service, adopts any unfair
method or unfair or deceptive practice