Sem- I LAW OF TORTS, M.V.

ACT 2019 & CONSUMER PROTETION LAWS (Paper - V) 2024

LAW OF TORTS 5) But in crime aim is to teach him a lesson by punishing
Q.1.Define Tort and development of tort in India. the accused.
Ans: -The French word 'tort' means wrong .It is also
traced that the word "tort' id derived from the Latin term 3) Distinguish between Tort and contract ?
"tortum "which means to twist .Thus the conduct which Ans:
is twisted on wrongful is tort. Tort
Salmons defines tort as a civil wrong for which the namely 1) It is a violation of a right in rem.
is a common law action for unliquidated damages and 2) The duty is imposed by the law.
which is not exclusive breach of contract, tort on other 3) Tort is inflicted against the will of the parties.
equitable obligation. The same definition is also adopted 4) There is no privity between the parties.
by clerk and Lind sell. 5)i) The sit is for unliquidated damages.
According to Ratanlal and Dhinahlal "TORT" is a civil ii) Liability may also arise for damages arising from
wrong independent of contract for which the appropriate circumstances unknown to the defendant.
nemely is an action of damages. iii) Exemplary damages can be awarded.
Wifield said "Tortious liability arises from the breach of 6) For the purpose of limitation, time runs from the date
a duty fixed by law towards persons generally and its on which the damage is suffered.
breach is redressible by an action for unliqidated 7) Motive of the defendant is often relevant.
damages."
Though there are different definitions given by different CONTRACT
authors the Hon'ble SC of India has quoted and
approved the definitions given by salmond and Winfield 1) It is a violation of right in personam.
as the proper and adequate definition of the term tort. 2) The duty is fixed by the parties to the contract.
The origin of law of torts is linked and introduced with 3) The obligation is founded on the consent of the parties.
the establishment of the British courts in India English 4) There is privity of conract between the parties.
system of administration ion of justice is simple, 5)i) Suit is for liquidated damages.
inexpensive and fast, for which this branch of law is well ii) If special circumstances are unknown to the defendant
developed in England but in India we can see slow he is no liable.
development of this branch of law. The reasons of slow iii) Exemplary damages normally not awarded.
development are uncertainty of law, lack of political 6) For purposes of limitation, time runs from the date of
consciousness, illiteracy, poverty ,expensive and dilatory the breach.
judicial system. Indian parliament has not completely 7) Motive of the defendant is generally immaterial.
neglected this branch of law and tried its best to codify
and enacted manyActs to make the law clean and definite Q.4. What are the mental elements in Tort ?
in this branch. In absence of codified law. Indian courts Ans- Mental elements in tort are ;-
apply the rule of justice, equity and good conscience as (1) Motive: - Motive is the state of mind which inspires
the rules of English law so for as they are applicable to to do an act and it is also the ulterior object of purpose
Indian society and circumstances. for which any act is done. Motive is not an essential
Inspite of above mentioned difficulties, the law of Torts element in Tort. If an act is lawful then it will not became
in India is developing. an illegal because it has been done with bad motive. So
it is the act, not the motive for the act which is regarded
Q.2) A) Distinguish between Tort and crime ? essential .But there are some exceptional cases like
Ans: malicious prosecution, malicious abuse of process,
TORT malicious falsehood, deformation nuisance and
1) It is the infringement of a private right. conspiracy where motive is relevant.
2) The wrong doer must compensate the injured party. (2)Intention:-Intention is the immediate and apparent
3) The suit is filed by the injured party. object for which the act is done. Intention is determined
4) Tort is a private wrong. from the conduct of the person who does an act. Intention
5) In tort, main aim is to recompense the plaintiff for the is irrelevant in Tort. If a person injured by the act of
loss suffered by him. defendant then he will be liable , even though his intention
CRIME might not be to cause injury to that person. Because in
1) It is the infringement of a public right. lae of Tort, liability is determined on the ground that every
2) The offender is punished by the state. one should know the natural and probable consequence
3) Action is taken in the name of state. of his act.
4) Crime is a public wrong.

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(3)Malice:-Malice means intentional doing of a wrongful in the statute, then the injured person can not bring an
act with improper motive .Malice is of 2 kinds i,e. action for it. In such cases, if there is provision for
(a)Makice in law; An act done wrongfully and without compensation in the statute, then the injured person can
reasonable and probable cause. claim it.
(b)Malice in fact ;Improper motive .Malice in the sense H) JudicialActs:- While discharging judicial duties, judicial
of improper motive is entirely irrelevant in Tort. But in officers, judges, magistrates are exempted from any
Malicious prosecution, injurious false hood, defamation, liability for their work done, and this is justified in Tort
malicious conspiracy and nuisance malice as a mental otherwise the Judges will be unable to discharge their
element becomes relevant. judicial functions independently and freely.
4) Malfeasance, misfeasance, non-feasance : - I) Quasi Judicial Authority:- These are the authorities who
Malfeasance is the commission of an unlawful act. have power to make rules and regulations for their own
Misfeasance is the improper performance of some lawful administration, and these authority are immuned from civil
act, and non-feasance is the failure or omission to perform liability if they follow the principles of national justice and
an obligatory act. rules and customs which determine their jurisdiction, and
this is justified in Tort.
Q.5. Explain general defenses or jurisdiction of Tort. J) Executive Authority:- The state and its executive
Ans:-In an action for tort, the defendant may take the officers are given certain privileges by constitution and
following defences which are also known as justification statutes that no action can be brought against these
of Tort and can avoid his liability. The defences are :- authorities for any injury done in exercise of their authority.
A) Volenti Non Fit Injuria:- "Velenti non fit injuria" means This is a good defence in Tort, but it must be kept in
"What is consented is not an injury" and it is not actionable mind that if the public officers to misuse of their power,
in Tort. Any harm suffered voluntarily by consent of the they can be held liable.
plaintiff is not actionable against defendant because K) Parental And Quasi Parental Authority:-
consent is a good defence, whether it is express or It is the good defence on justified in law, if the
implied. parents on quasi parental authorities exercised their force
B) Act of God:- Act of God is the result of the of natural on power to guide the child on for the well being of the
forces and are unconnected with the agency of man. The child.
important elements of this defence are :- L) Exercise Of Common Right:- It is justified in Tort.
ii) The incident must be extraordinary and not which could Every person has complete freedom to exercise his
be anticipated and reasonably guarded. common rights, even though it may cause damage to
C) Inevitable accident:- If the defendant does a legal act others, but the rights must be exercised in good faith and
with reasonable care and the plaintiff is injured which in a lawful manner.
occurred in the circumstances which cannot be avoided, M) Acts Causing Slight Harm:- This defence is based on
no action can be brought against the defendant. In Fradan the Maxim "de minimis non-curat lex" (Law does not
V. Hencourt, Lord Duendin has said "A man must be concern itself with trifles). Causing slight harm is a defence
vigilant to guard against probable incidents, not against in Tort because it does not take account of tribles on an
imaginary incidents." ordinary damage to a person.
D) Private Defence:- If a person uses necessary force to
protect his person or property and causes harm to another Q.6) Explain who can not sue and who can't be sued ?
person, then no action can be brought against him. There Ans: The following persons cannot sue:-
are 2 conditions for self-defence. Firstly it will be justified A) Convicts:- Originally in England, a convict had no
when there is imminent threat to the person or property right to sue for any injury to his property or for recovery
of a man and secondly the use of force must be in of a debt. This disability was removed by the criminal
proportion to the necessary circumstance. justice Act 1948. The Indian Law on this point is same
E) Acts of Necessity:- This defence is based on the and now a convict has right to sue a wrongdoer for
maxim "Slus populi lex" - means the welfare of the people personal injury or injury to his property.
is the supreme law. In time of necessity individual interest B) Alien Enemy:- Any person of enemy nationality or a
is sacrificed and implied consent is pressured on the part person residing in enemy territory is known as alien
of every person of society. So this is justified in Tort. enemy. At common law, an alien enemy had no right to
F) Mistake of Fact:- A mistake of fact is no excuse, except sue in his own capacity except when duly licensed or
in the cases where motive is an essential ingredient unless he comes into British Dominions under a flag of
constituting the wrong. truce. In India an alien enemy can sue by obtaining the
G) Statutory Authority:- If the damage is caused to a permission of the central Govt. u/s. 83 of C.P.C.
person by an act done under the authority of the C) Husband And Wife:- Formerly in English Law,
legislature, then the injured person cannot bring an action husband and wife can't sue each other for the tort
for it. In such cases, if there is provision for compensation committed by one against other because they are treated
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as same person in the eye of law. But the law reforms vi) Lunatics:- Generally lunacy is not a defence in tort.
(husband and wife) Act 1962 has abolished the above But where some mental condition forms an essential
rule and has given equal status to both to sue each other. ingredient like intention, malice, knowledge etc., and the
In India, the notion of the legal identity of husband defendant had done some tortuous activity, then the
and wife does not apply and therefore an action in tort defendant cannot be sued and made liable.
by one against the other is maintainable. vii) Trade Unions:- According to the Indian Trade Union
D) Bankrupts:- In either system of law, a Bankrupt cannot Act, 1926 if a trade union is registered a suit can be
sue for wrongs in respect of his property because in brought against it in its registered name but Sec. 18 of
bankruptcy, all his property vests in a Trustee, but in case the Act specifies certain circumstances where no action
of personal wrongs the right to sue is not taken away. can be brought against the office bearers of a registered
E) Child In The Womb:- Prior to the enactment of Union, and against the members of a trade union in respect
congenital Disabilities Act, 1976, a child in the womb of a labour dispute.
cannot sue; but after the enactment of the above Act, an viii) Corporations:- Generally a corporation can't be sued
action on behalf of an unborn child can be brought when unless the act done was within the scope of the agent
the child is born alive and is deformed. In India there is employed by it and the act done was within the purpose
no such enactment and in absence of any enactment they of incorporation.
are guided by the decisions of English court. ix) Act of state:- An act done in exercise of sovereign
F) Foreign Sovereigns:- No foreign state can file suit in power in relation to another state on subjects of another
the Indian courts for torts, unless such a state is recognized state is an act of state and it can't be sued. The same
by India. They can do so only with the prior permission view is also followed din India because Act of state is
of the central Govt. based on policy considerations and not on law and
G) Corporation:- A corporation may sue for a libel or therefore it can't be sued (B.K. Mohapatra V. State of
any other wrong affecting its property or business but it Orissa; A.I.R. 1988 S.C. 24).
can't sue for personal wrongs.
The following persons can't be sued in Tort. They Q.7. Explain vicarious liability, scope and
are :- justification ?
I) The Crown or State:- In English Law, an action for Ans: Vicarious liability means liability which is incurred
personal wrong will not lie against the sovereign because for, or instead of another. When a man made liable for
it is based on the maxim that "The King can do no wrong". the tort of another, then the liability is known as vicarious.
In India, Art. 300 of Constitution of India The scope of vicarious liability is very narrow according
provides that state can sue or be sued. But Art. 361 to the old view. It says that a man is vicariously liable
provides, the President, Governors and Rajpramukhas only in 2 stages i.e.
of State are not answerable to any court - for the exercise i) Qui facit per alium facit pense:- It means "a person
and performance of the powers and duties of their office; who does an act through another is deemed in law to do
or for any act done by them in exercise of those powers it himself". E.g. A master is liable for the torts of his
and duties, but these immunities is subject to certain servant.
qualifications. ii) Respondent superior:- It means superior must be liable
ii) Foreign Sovereigns:- Foreign sovereigns cannot be for the tort of inferior. E.g. Father is liable for the tort of
sued, unless they themselves submit l to the jurisdiction son.
of the local court and waive the privilege. Sec. 87 B of But the modern view widened and includes every
C.P.C says that, Foreign sovereigns can be sued only aspect of vicarious liability. According to it vicarious
with the previous permission of Central Govt. liability arises in the following cases:-
iii) Ambassadors:- Ambassadors, their families and 1) Liability by ratification
servants cannot be sued during his term of office unless 2) Liability arising out of special relationship
he waive his privilege by submitting to the jurisdiction of 3) Liability by abetment
the court. 1) For liability by ratification, the following 4 things are
iv) Public officials:- Public officials cannot be sued in essential:-
respect of torts committed by them in their official a) The person who ratifies the act must have full
capacity but for the tortuous acts committed by them in knowledge that the act was tortuous and it must be
their private capacity they can be sued. proved that in ratifying and taking the benefit of the act
v) Infants:- Infancy or minority is not a defence in tort. he meant to take himself, without inquiry the risk of any
But where intention, knowledge, Malice or some other irregularity which might have been committed, whether it
condition of mind of the wrong doer forms an essential was for right or wrong.
ingredient of liability and the minor is unable to form such b) only such acts can be ratified which were done at the
mental conditions due to his minority, then he cannot be time on behalf of principal when the ratifying party must
sued for tort. have done the act.
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c) only lawful acts can be ratified. natural user of the land, the owner becomes absolutely
d) ratification must be express. liable if the dangerous things escapes and causes damage
2) Liability arising out of special relationship are - Master to the neighbour though the owner has no negligence on
and servant, principal and agent, firm and its partners, his part.
Guardian and ward, company and its directors. 2) Escape Of Animals:- We find animals of 2 kinds. One
Master and servant relation exists where the employer is dangerous character and the second is not of
cannot only direct what work the servant is to do, but dangerous character. If someone keeps the animals of
also control the manner of doing such work. dangerous character, then he must keep it under control
The liability of principal for agent is attached on otherwise, if the animal escapes and hurts anyone, the
the ground that, it is the principal who has selected the owner becomes absolutely liable for damages, without
agent and in this case it is necessary to show that - the any averment of negligence. And in case of animals not
Act was committed by the agent in the course of his of dangerous nature, the owner is liable for their trespass
employment and where the act was beyond the scope of and consequent damage but not for other injuries. Unless
the agency in that case it was expressly authorized or proof of scienter is given as to the prosperity of the animal
subsequently ratified. itself to do the act in question.
Companies are liable for the torts committed by 3) Use Of Things Naturally Dangerous:-
their servants in the course of their employment if the act Every person who uses dangerous goods which
was within the power of company and should be done are dangerous by their nature becomes absolutely liable.
for company. Dangerous goods are Non-domestic fire, firearms,
The relation of partners intense is that of principal explosives, poisonous drugs, gas etc.
agent. Therefore firm is vicariously liable for the tortuous 4) Dangerous Premises:- Generally, there is no duty of
act of its member if the act was committed in the ordinary care towards a trespasser, as he enters wrongfully, and
course of partnership business. does so at his own risk. The occupier will be absolutely
3) In the law of torts, those who abet the tortuous liable only if he inflicts any willful or deliberate harm to
acts are as much liable as the tort feasors themselves the trespasser. As far as a licensee is concerned, the
and it is known as liability my abetment. occupier must caution him against any known danger and
Vicarious liability is justified / on its defences are:- must not alter the character of the place, by placing any
1) When the servant exceeds its authority, dangerous obstruction. Now the liability of an occupier
2) When he acted not in course of employment, 3) is codified in the "occupier's liability Act, 1957".
When the a owner letted his servant to another master, 5) Persons Processing Skill:-
then the acts of servant under another master is not coming Where persons hold themselves out to be persons
under vicarious liability. 4) When the servant does an of skill, they are bound to conduct themselves in a skilful
unlawful act, 5) Where the relation between the parties manner, otherwise they will be absolutely liable for the
is that of a head of a Govt. dept. and a employee in that unskillful act.
dept. Directors of companies are required to show more than
ordinary care and diligence towards the shareholders of
Q.8) Explain Doctrine of absolute liability ? the company. Solicitors are supposed to be skilled and
Ans: Absolute liability impose a kind of liability on a knowledgeable, and a great degree of care is expected
person without any facet on his part and it arises from of them. Banker's become absolutely liable for paying
the breach of an absolute duty. This rule is very important forged cheques of their customers etc.
and effective and it will put a pressure and restriction on
the industrialists engaged in hazardous activities and now Q.9. Explain Act of God & Inevitable Accident with
they will give importance to the security measures to avoid case Laws
mishappenings affecting people at large, and in case it Ans:- According to Sir Federic Pollock “Act of God is
occurs affected persons will be redressed for the loss an operation of natural forces so unexpected that no
suffered by the industry. The S.C of India has evolved
human forces or skill could reasonably be expected to
this doctrine in M.L. Mehta V. Union of India (A.I.R.
1987 S.C 1086). Absolute liability is the exception to anticipate it.
the nude "actus non facitrevam nisi mens sit rea". Under According o Samon ‘Act of God’ includes those acts
this liability, a man is responsible irrespective of the which a man cannot avoid even by taking reasonable
existence of either wrongful intent or negligence. In the care. Such accidents are the result of natural forces.
following 5 classes of torts absolute liability is fixed. 1. There must be operation of natural forces
1) Escape Of Dangerous Things:- If the owner of the 2. The incident must be extraordinary and not which
land keeps dangers things in his land, and for this non- could be anticipated an reasonably guarded.

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Ex:- Nichols V. Marsh Land is the leading case on the 4. Throwing.
point. In this case an artificial lake was created on the 5. To forcibly feeding a hunger striking prisoner in
plaintiffs and due to storage of rain water coming from a jail to save his life.
natural stream once there was an extraordinary heavy
rain which could never have been anticipated as a result In the above cases the interference has been justified
of which the embankments of the lakes hurt out and water because they were done in order to prevent greater
began to overflow in the plaintiffs land. harm. But if in the circumstances the interferes not
In evitable Accident:- According to Sir Fedrick Pollock reasonable or justifiable, the defendant can take the
‘inevitable Accident’ are those incidents which a person defence of necessity from absolving him from liability.
of ordinary prudence cannot avoid in spite of all Kirk V. Gregory’s case is an illustration on the point.
reasonable care on his part in the circumstances in which In this case after A’s death A’s sister-in-law removed her
they occur. If a person does a legal act with reasonable jewelry and kept it in another room thinking that will be
care and another person is injured, which cannot be safe there. But from there the jewelry was stolen. A’s
avoided not action can be brought against him. executors sued the sister-in-law for trespass the jewelry.
Ex:- In Sridhar Tiwari V.U.P. State road transport It was held that the interference was not reasonably
corporation, when a bus of the U.P. state Road Transport justified and therefore she was liable for the damage
reached near a village a cyclist suddenly came in front of caused by the theft of the jewelry.
the bus, due to rain breaks skidded and accident took
place, both buses were driven at a moderate speed. So
it is inevitable accident. Q.11) What is defamation and what are the kinds of
it ? Discuss the defences if any ?
Ans: Injury to one’s reputation has been termed as defa-
Q.10.Explain ‘Greatest good of the greatest
mation. It I a wrong done by a person to another’s reputa-
member’. tion by words, written or spoken, sign or other visible rep-
Ans:- This is based on the maxim Salus populi lex – resentation. It is different from insult and wrongful acts
The welfare of the people is the Supreme Law – Greatest (not words) which injure reputation.
good of the greatest member’ is the main object f this There are two kinds of defamation namely libel
maxim. For this, implied consent is presumed on the part and slander. The wrongs of defamation may be commit-
of every person of the society. In time of necessity ted either by way of writing which is known as libel or by
way of speech which is known as slander. When the
individual interest is sacrificed. Therefore, damage caused defamatory statement is made in some permanent and
by act for preventing great damage is not actionable be visible form, such as writing, printing, pictures or effigies,
even though harm is caused intentionally. For example:- then it is libel. When defamatory statement made against
if my neighbour’s house catches fire and a person pours a person by spoken words or some other temporary form
water on it in order to put it off and thereby causes some , whether visible or audible such as gestures, hissing or
damage to it, he will not be liable. In such case the person such other things then it is slander. Libel is actionable perse
that means plaintiff is not required to prove any damage
who interferes has to act before obtaining the consent of
but slander is not actionable perse except certain circum-
the other person. Such acts can be considered to be stances.
lawful when there is immediate necessity for doing it Generally there are 4 kinds of defences available
provided it has been done with reasonable care and in an action of defamation. They are explained as fol-
precaution. Following are the examples of acts of lows:-
necessity:- 1) Justification of Truth:- In an action for defamation,
1. Throwing cargo into the sea to lighten the ship in truth of the defamatory statement is a complete defence.
If the defendant proves that, the defamatory statement is
order to save the ship as well as persons on board true, then no action will lie for it, even if he had published
the ship. the statement with malicious intent. But in criminal cases
2. To throw water on a house in fire, or putting it truth of statement is no defence.
down, in order to stop the further spread of fire. 2) Fair and Bonafide comment:- Every person is en-
3. To pull out drowning person from water or to titled to express his opinion on matters of public interest.
compel a surgeon to performance operation of A fair and bonafide comment on a matter of public inter-
est is a good defence in an action for defamation. A com-
an unconscious person to save his life.
ment is fair and bonafide if,
(a) it is a comment or criticism but not a statement of
fact;
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(b) it is a comment on a matter of public interest; Distinction between malicious prosecution and false
(c) it is a comment fair and honest. imprisonment:-
3) Privileged statement:- There are certain occasions 1) False imprisonment is the invasion of the interest
which are so important, that those making statements upon in freedom from unlawful confinement while a malicious
them are not liable in defamation, even though their state- prosecution is the unlawful use of legal procedure to bring
ments are untrue and even malicious and this is a good about a legal confinement
defence in an action for defamation. Privilege statement 2) A wrong of false imprisonment is an action of
may be absolute or qualified. Parliamentary proceedings, trespass and not one of the case. In this wrong the injury
judicial proceeding, military and Naval proceedings and is always forcible and direct, forcible in the sense of being
state proceedings are under absolute privilege, whereas a an act of physical interference with the person or the prop-
statement is said to possess a qualified privilege when al- erty of another.
though false and defamatory it is not actionable without A wrong of malicious prosecution is not based on
proof of malice. forcible and direct injury but it is a trespass on the case
4) Apology:- The plea of apology is maintainable as a for injury, there is neither forcible nor direct but merely
defence only when the person defamed accepted the apol- consequential.
ogy. Every such defence must be accompanied by a pay-
ment of money into court by way of amends. Q.13) What is negligence ? What are its essentials
and what defences are available to it ?
Q.12) What is malicious prosecution ? What are the Ans: According to Alderson B, “negligence is the omis-
essentials of it and differentiate it from false impris- sion to do something which a reasonable man guided upon
onment ? those considerations which ordinarily regulate the conduct
Ans: Malicious prosecution is one kind of Tort mali- of human affairs, would do or doing something which a
ciously and without reasonable and probable cause to ini- prudent and reasonable man would not do”.
tiate against another. Judicial criminal proceedings which Winfield defines negligence as a tort is the breach
terminate in favour of that other and which result in dam- of a legal duty to take care which results in damages.
age to his reputation, person, freedom or property. There are 4 kinds of essentials of negligence,
There are 5 kinds of essentials which are neces- which the plaintiff is required to prove to establish the
sary to establish the tort of malicious prosecution and they case of negligence, and they are explained below:-
are explained as below:- 1) Duty to take care:- Negligence is breach of legal
a) The defendant prosecuted the plaintiff:- The first duty to take care. It is carelessness in a matter in which
essential of malicious prosecution is that, the defendant carefulness is made obligatory by the law.
had prosecuted the plaintiff in a criminal case changing 2) Duty of care must be owed to the plaintiff:- In case
with a crime. of negligence, the plaintiff has to prove that the defendant
b) The defendant acted without any reasonable and owed a duty to him to take care. In a particular case,
probable cause:- No action will lie for malicious prosecu- whether the defendant owes a duty of care to the plaintiff
tion unless it is proved that the criminal proceedings were or not, is a question based on whether the defendant could
initiated without reasonable and probable cause. If the reasonably foresee that an injury might be caused to the
plaintiff proves either that the defendant did not believe in plaintiff by his act or omissions.
his guilt or that the believe was not reasonable, then the 3) Breach of duty:- The breach of duty to take care
prosecution was without reasonable and probable cause. means not taking due care, which would have been nec-
c) That the defendant was actuated with malice:- In essary in the special circumstances by the determination
a suit for malicious prosecution it is necessary for plaintiff of the question whether the defendant has violated his
to prove that the defendant acted without reasonable and duty to take care or not will depend on the facts and cir-
probable cause and he was actuated with malice. IN ac- cumstances of each case.
tion for tort malice means some improper, indirect and 4) Damage to the plaintiff:- In a case of negligence, it is
wrongful motive. It is gist of this action and must be proved also essential that the plaintiff should prove that as a re-
by the plaintiff. sult of the negligent act of the defendant, plaintiff had suf-
d) That the proceeding ended in favour of the plain- fered damages.
tiff:- It is essential to show that the proceeding of criminal In an action for negligence, the defendant can
case must have terminated in favour of he plaintiff, and plead the contributory negligence or voluntary assumption
from this only the right to sue under malicious prosecution of risk and if he succeeds I n proving either of them the
arises. plaintiff’s action would fail. Contributory negligence is the
e) That the plaintiff suffered some damage:- The negligence which is caused solely not due to defendant
plaintiff can successfully bring an action against the de- but also due to negligence of the plaintiff. A person whose
fendant (prosecutor) only if he suffers some damage from injury is a result of his own negligence as well as that of
the prosecution. The damage is the gist of an action for another, may loose his right to recover compensation from
malicious prosecution. Damage may be to person’s fame, the latter.
to his person or to his property.
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Q.14) What are the essentials of nuisance and differ- Ans: There are 2 kinds of remedies namely Judicial
entiate between public and private nuisance ? and extra Judicial which are available to a person who is
Ans: Nuisance has been defined as an injury to the right the victim of a Tort. Judicial remedies means the rem-
of a person in possession of property to undisturbed en- edies available to the victim of a tort in a court of law and
joyment of it and results from an improper use by another are of 3 kinds:
person of his own property. 1) Damages
Essentials of nuisance are – 2) Injunction
i) Unlawful interference 3) Specific restitution of property
ii) Interference with the use or enjoyment of land 1. Damages:- Damages are the pecuniary compensation
iii) Damage which is given to a person for the injury he suffers for the
Unlawful interference:- Every harm to a person’s prop- infringement of his rights. It is confined to the loss which
erty or interference with his personal comfort or health the plaintiff has actually suffered and are designed not
does not constitute nuisance but when such interference only as a satisfaction to the plaintiff but also is a punish-
is unreasonable then it becomes unlawful and one can ment to the defendant. It may be nominal, substantial or
bring suit for nuisance. So it is the first essential of nui- real, contemptuous, exemplary or punitive, general and
sance that interference should be unlawful. special, protective and continuous.
Interference with the use or enjoyment of land:- Un- 2. Injunction:- It is an order of the court restraining the
lawful interference must be made in relation to the use or commission, repetition or continuance of a wrongful act
enjoyment of land of plaintiff when interference is caused by the defendant. It is a discretionary remedy. It is supple-
to one’s physical comfort then liability arises in other forms mentary when damage is not sufficient. It is guided ac-
namely battery, trespass etc. cording to the law contained in Sec-37 to 42 of Specific
Damage:- Nuisance is not actionable perse. It means Relief Act. It may be temporary and perpetual or prohibi-
actual damage must be proved by the plaintiff. Except tory and mandatory.
some exceptional circumstances damage is essential to 3. Specific Restitution of Property:- This remedy is avail-
establish nuisance and the circumstances are:- able to the injured party who had been wrongfully dispos-
i) Where on the facts, damage can be readily pre- sessed of his movable of immovable property. IN such a
sumed, this presumption of damage will suffice. case the court may order the defendant to restore back
ii) Where the interference is with easement or a the property to the plaintiff.
profit aprendre. Extra-Judicial remedies are the remedies which
Difference between public and private nuisance:- are available to a person outside the court of law, and it
1) Public nuisance is an injury to the public in gen- includes the followings:-
eral whereas private nuisance is an injury to an individual a) Self help:- Every person is entitled to use reasonable
in particular. force to protect him against any wrongful act. It must be
2) In private nuisance the plaintiff must prove inter- in proportion to the danger or injury sought to be prevented.
ference with his enjoyment of land, whereas claims based It includes the right to protection of one’s own body, mem-
on public nuisance are not necessarily linked with the user bers of his family, protection of property etc.
of land. b) Re-entry on land:- A person who has been dispos-
3) A private nuisance may be abated by one who is sessed of h is land wrongfully can re-enter his land and
inconvenienced by it, but a public nuisance can’t be abated take its possession. He can use necessary force for this
by an individual except to the extent to which it causes purpose, provided it is done peacefully.
some special damage to the person who desires to abate c) Expulsion of trespasser:- Every person has right to
it. expel a trespasser form his land and for this he can use
4) A private nuisance may become legal by prescrip- necessary force to expel the trespasser but the use of
tion but a public nuisance cannot be legalized after any force must be reasonable and proportionate to the danger.
length of time. This right can be used prior to the entry, on the land or
5) In India public nuisance is regarded as criminal after the entry.
offence and therefore provisions are made in criminal law d) Reception of goods:- If a person id dispossessed of
for this type of nuisance but private nuisances are coming his chattels or animals wrongfully, he is entitled to repos-
under civil wrongs and therefore they are coming under sess them and to exercise this right he can enter upon the
civil action or Tort. land of another and it will not amount to trespass.
6) In private nuisance the person whose comfort- e) Abatement of nuisance:- If some nuisance is done or
able enjoyment of properties is disturbed may file a suit in continues on a person’s land, then he is entitled to abate or
a civil court for damages or for injunction but public nui- remove the nuisance. Before exercising this right he should
sance is not tortuous unless an individual proves that he give notice to his neighbour, unnecessary damage should
has suffered particular damage beyond that suffered by not be caused and if there are two ways of removing the
the rest of the community. nuisacne, the way which causes less mischief should be
adopted.
Q.15) Vividly explain the general remedies in Torts ?
7
16. What do you understand by remoteness of dam- the defendant, so that it may deter him as well as others
age? What is the true test of remoteness? from repeating the same behaviour in future. Generally it
Ans. It is necessary for the plaintiff in an action for dam- is awarded where the amount of damages is very high
ages to establish the necessary connection between the keeping in view the nature of injury or loss.
act complained of and the actual damage alleged. If the iv) Nervous shock:- It means any mental shock. Ac-
damage is not, in the eye of law, sufficiently connected cording to old view no action could be brought for mere
with the wrong it is too remote with the result that the mental pan even if the defendant had done it knowingly,
plaintiff can not recover. In other words the plaintiff must but when the mental shock causes a disease, or some
show that the wrongful act or omission is the direct cause pain in the body the court can award damages for the
of the damage. If the wrongful act is the indirect cause of same. But now the old view is discarded and modern law
damage it is too remote. Thus if someone negligently recognized the view that an action can be brought for dam-
leaves a libelous letter about, it is not a direct effect of the ages for mental shock even though it is sustained through
negligence that the finder should show the letter to the the medium of eye or ear.
person libeled.
Test of Remoteness of Damage:-
(a) The test of reasonable foresight: - According to this
test if consequences of a wrongful act could have been
foreseen by a reasonable man they are not too remote. If
on the other hand a reasonable man would not have fore-
seen the consequences, they are too remote.
(b) The test of directness: - The above test of reasonable
foresight was rejected and the test of directness was con-
sidered to be more appropriate by the court of appeal.
According to this test a person is liable for all the direct
consequences of his wrongful act, whether he could have
foreseen them or not because consequences which di-
rectly follow a wrongful act not too remote.

Q.17) Write short notes on:-

i) Assault, ii) Battery, iii) Exemplary damages, iv)
Nervous shock
Ans: i) Assault:- An assault is an attempt or offer to ap-
ply force to another’s person. Anyone who intentionally
brings any material object into contact with another per-
son, is said to have applied force to the person of that
other. In assault the force is not actually applied but only
attempt is made. The vital essentials of assault are inten-
tion to use force and capacity to use force. Mere words
are not enough nor passive conduct, there must some ges-
ture or preparation which constituted a force, and the per-
son so assaulted must on reasonable grounds believe that
the person assaulting has the ability to apply the force so
attempted by him.
ii) Battery:- Battery is an accomplished assault. The at-
tempt to strike with stick is assault but to strike actually is
battery. Battery need not be accompanied by bodily harm.
Even to touch a person without his consent or any other
legal justification is battery. There must be absence of
consent of the person harmed. Essentials of battery are,
use of force, force must be intentional and it must be without
lawful justification. It is actionable perse i.e. without proof
of damage.

iii) Exemplary damages:- It is also known as punitive

damages. These 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
8
 MOTOR VEHICLE ACCIDENT ACT 2019 (2) Subject to the provisions of Sec. 18, no person
Unit-3 under the age of 20 years shall drive a transport vehicle
Q.18 Why is the driving licence essential to drive in a public place.
a motor vehicle ? What are the essential
conditions to get a driving licence ? (3) No learner’s licence or driving license shall be
Ans: Driving licence is very essential for driving a issued to any person to drive a vehicle of the class to
vehicle. The provisions relating to the necessity for driving which he has made an application, unless, he is eligible
licence have been given U/s. 3 of the Motor Vehicle Act to drive that class of vehicle under their Section.
2019. According to it -
Sec. 4 of the Act provides that a person, who
(1) No person shall drive a motor vehicle in any has completed 16 years of age, may drive a motor cycle
public place unless, he holds an effective driving licence without gear. To drive a motor vehicle, other than a
issued to him authorizing him to drive the vehicle and no transport vehicle, the person must have completed 18
person shall so drive a transport vehicle other than a years of age, may drive a motor cycle without gear. To
(motor cab or motor cycle) hired for his own use or rented drive a motor vehicle, other than a transport vehicle, the
under any scheme made under Sub Sec. (2) of Sec. 75, person, must have completed 18 years of age.
unless his driving licence specifically entitles him so to
do. To drive, a transport vehicle, a person must have
completed 20 years of age. This clause seeks to prohibit
(2) The conditions subject to which sub Sec. (1) shall the issue of a licence to drive a motor cycle or a motor
not apply to a person receiving instructions in driving a vehicle to those persons, who do not satisfy the above
motor vehicle shall be such as may be prescribed by the age requirements.
Central Government.
The provision, that no driving licence be granted
Sec. 3 (1) provides for the need to have a licence to persons under 18 years of age, held is mandatory, the
to drive a motor vehicle and a special authorization to driving of a vehicle, by such a person without such a
drive a transport vehicle. Sec. 3 (2) empowers the licnce, is an offence.
Central Government to prescribe conditions subject to
which a vehicle may be driven by a person receiving It is so even, where such a licence has been
instruction in driving. granted by authority in ignorance, though, it may not be
proper to punish the accused.
There is a nexus between the classification of
the vehicles into different categories and the issue of * Union of India V. Laman Badri Prasad A.I.R. 1954
driving licences to persons to drive the vehicle belonging Vindh Pra Para 17
to different categories. Therefore, unless a tourist taxi or
motor cab was driven by a person duly licensed to drive Q.19. Explain the procedure for the grant of
such vehicle, it would follow that the driving of that vehicle learner’s licence ?
by a person not authorised to drive a tourist taxi or motor Ans: Sec. 8 of the M.V. Act 2019 lays down the
cab, was by a person not duly licensed within the meaning procedure in making an application for the grant of
of the provisions of the Act. learner’s licence. A pass in the test, on the rules of the
road and a strict medical test are pre-conditions for the
Holder of learner’s licence cannot drive transport issue of the learner’s licence.
vehicle. There is no scope for a person holding a learner’s
driving to drive the transport vehicle for hire as the According to Sec. 8 of the Act –
learner’s licence cannot be said to have specially entitled (1) Any person who is not disqualified U/s. 4 for
him to do so within the meaning of Sec. 3 (1). driving a motor vehicle and who is not for the time being
disqualified for holding or obtaining, a driving licence may,
Age limit in connection with driving of motor subject to the provisions of Sec. 7 apply to the licencing
vehicles:- authority, having jurisdiction in the area -
According to Sec. 4 of the M.V. Act 2019 –
(1) No person under the age of 18 years shall drive (i) in which, he ordinarily resides or carries on
a motor vehicle in any public place; business, or
Provided that, a motor cycle with engine capacity (ii) in which the school or establishment referred to
not exceeding 50 CC may be driven in public place, by in Sec. 12 from where, he intends to receive
a person, after attaining the age of 16 years. instruction on driving a motor vehicle is situate,
for the issue to him of a learner’s licence.
9
 to such conditions as may be specified in the rules, any
(2) Every application under sub-section (1) shall be class of persons from the provisions of Sub- Sec. (3) or
in such form and shall be accompanied by such Sub-Sec. (5), or both.
documents [with such fee and submit in such manner,
including electronic means] as may be prescribed by the (8) any learner’s licence for driving a motor cycle in
Central Govt. force immediately, before the commencement of this Act
shall, after such commencement, be deemed to be
(3) Every application to drive a transport vehicle effective for driving a motor cycle with or without gear.
made, under Sub-Section (1) shall be accompanied by
a medical certificate in such form as may be prescribed Q.20 State the procedure for the grant of driving
by the Central Govt. and signed by such registered licences ?
medical practitioner, as the State Govt. or any person Ans: Procedure for granting a driving licence:
authorized in this behalf by the State Govt. may, by According to Sec. 9 of the M.V. Act 2019 –
notification in the Official Gazette, appoint for this (1) Any person who is not for the time being
purpose. disqualified for holding or obtaining a driving licence may
apply to the licensing authority having jurisdiction in the
(4) If, from the application or from the medical area -
certificate referred to in Sub-Section (3), it appears that
the applicant is suffering from any disease or disability (i) in which, he ordinarily resides or carries on
which is likely to cause the driving by him of a motor business, or
vehicle of the class which he would be authorised by the (ii) in which the school or establishment referred to
learner’s licence applied for to drive to be a source of in Sec. 12 from where, he is receiving, or has
danger to the public or to the passengers, the licensing received instruction in driving a motor vehicle is
authority shall refuse to issue the learner’s licence. situated for the issue to him of a driving licence.

Provided that a learner’s licence limited to drive (2) Every application under Sub-Sec. (1) shall be in
an invalid carriage may be issued to the applicant; if the such form and shall be accompanied by such fee and
licensing authority is satisfied that, he is fit to drive such a such document as may be prescribed by the Central
carriage. Govt.;

(5) No learner’s license shall be issued to any (3) If the applicant passes such test as may be
applicant unless; he passes to the satisfaction of the prescribed by the Central Govt., he shall be issued the
licensing authority such test as may be prescribed by the driving licence.
Central Govt.
Provided that, no such test shall be necessary,
(6) When an application has been duly made to the where the applicant produces proof to show that –
appropriate licensing authority and the applicant has
satisfied such authority of his physical fitness under sub- (a)(i) the applicant has previously held a driving licence
sec (3) and has passed to the satisfaction of the licensing to drive such class of vehicle and that the period to drive
authority the test referred to in sub-section (5), the such class of vehicle and that the period between the
licensing authority shall, subject to the provisions of the date of expiry of that licence and the date of the
Sec 7, issue the applicant a learner’s licence unless, the application does not exceed 5 years; or
applicant is disqualified U/s. 4 for driving a motor vehicle
or is for the time being disqualified for holding or obtaining (ii) the applicant holds or has previously held a
a licence to drive a motor vehicle. driving licence to drive such class of vehicle U/s. 18; or

Provided that, a licensing authority may issue a (iii) the applicant holds a driving licence to drive such
learner’s licence to drive a motor cycle or a light motor class of vehicle issued by a competent authority of any
vehicle not withstanding that it is not the appropriate country; outside India, subject to the condition that the
licensing authority, if such authority is satisfied that there applicant complies, with the provisions of Sub Sec. (3)
is good reason for the applicant’s inability to apply, to of Sec. 8.
the appropriate licensing authority.
(b) the applicant is not suffering from any disability,
(7) where, the Central Govt. is satisfied that it is which is likely to cause the driving by him to be a source
necessary or expedient so to do, it may, by rules made in of danger to the public; and the licensing authority may,
their behalf, exempt generally, either absolutely or subject for the purpose, require the applicant to produce a medical
10
certificate in the same form and in the same manner, as is
referred to in Sub-Section (3) of Sec. 8; (a) is a habitual criminal or a habitual drunkard; or
(b) is a habitual addict to any narcotic drug or
Provided further that a driving licence for driving psychotropic substances Act 1985 (6) of 1985;
an adapted vehicle may be issued to the applicant, if the or
licensing authority is satisfied that, he is fit to drive such (c) is a person whose licence to drive any motor
motor vehicle. vehicle has, at any time earlier, been revoked,

(4) Where the application is for a licence to drive a it may, for reasons to be recorded in writing,
transport vehicle, no such authorization shall be granted make an order refusing to issue a driving licence to such
to any applicant unless, he possesses such minimum person and any person aggrieved by an order made by a
educational qualification, as may be prescribed by the licensing authority under this subsection may, within 30
Central Govt. and driving certificate issued by a school days of the receipt of the order, appeal to the prescribed
or establishment referred to in Sec. 12. authority.

(5) Where the applicant does not pass the test, he (9) Any driving licence for driving a motor cycle in
may be permitted to re-appear for the test after a period force immediately before the commencement of this Act
of 7 days; shall, after such commencements, be deemed to be
effective for driving a motor cycle with or without gear.
Provided that, where the applicant does not pass
the test, even after 3 appearances, he shall not be qualified (10) Notwithstanding anything contained in the
to re-appear for such test before the expiry of a period section, the driving licence to drive E-cart or E-rickshaw
of 60 days from the date of last such test, and such shall be issued in such manner and subject to such
applicant shall be required to complete a remedial driver conditions, as may be prescribed.
training course from any school or establishment U/s.
12. Q.21. Discuss the powers of licencing authority to
disqualify from holding or revoking a driving
(6) The test of competence to drive shall be carried licence ?
out in a vehicle of the type to which the application refers. Ans: According to Sec. 19 of M.V. Act 1988, as
amended in 2019 -
Provided that a person who passed a test in Power of Licensing Authority to disqualify from
driving a motor cycle with gear shall be deemed also to holding a driving licence or revoke such licence -
have passed a test in driving a motor cycle without gear.
(1) If a licensing authority is satisfied, after giving the
(7) When any application has been duly made to holder of a driving licence an opportunity of being heard,
the appropriate licencing authority and the applicant has that he -
satisfied such authority of his competence to drive the
licensing authority shall issue the applicant a driving (a) is a habitual criminal or a habitual drunkard; or
licence, unless the applicant is for the time being (b) is a habitual addict to any narcotic drug or
disqualified for holding or obtaining a driving licence; psychotropic substance within the meaning of the
Narcotic Drugs and Psychotropic Substances
Provided that a licensing authority may issue a Act, 1985 (6) of 1985); or
driving licence to drive a motor cycle or a light motor (c) is using or has used a motor vehicle in the
vehicle notwithstanding that it is not the appropriate commission of a cognizable offence; or
licencing authority; if the licencing authority is satisfied (d) has by his previous conduct as driver of a motor
that there is good and sufficient reason for the applicant’s vehicle shown that his driving is likely to be
inability to apply to the appropriate licencing authority; attended with danger to the public; or
(e) has obtained any driving licence or a licence to
Provided further that the licensing authority shall drive a particular class or description of motor
not issue a new driving licence to the applicant, if he had vehicle by fraud or misrepresentation; or
previously held a driving licence, unless, it is satisfied that (f) has committed any such act which is likely to
there is good and sufficient reason for his inability to cause nuisance or danger to the public; as may
obtain a duplicate copy of his former licence. be prescribed by the Central Govt. having regard
to the objects of this Act; or
(8) If the licensing authority is satisfied, after giving
the applicant an opportunity of being heard, that he –
11
(g) has failed to submit to, or has not passed, the
tests referred to in the provision to Sub-Section Provided that the driving licence shall be returned
(3) of Sec. 22; or to the holder at the end of the period of disqualification
(h) being a person under the age of 18 years who only, if he successfully completes the driver refresher
has been granted a learner’s licence, or a driving training course.
licence with the consent in writing of the person,
having the care of the holder of the licence and Sec. 19 (2)(A) – The licence holder whose license has
has ceased to be in such case, it may, for reasons been suspended shall undergo the driver refresher training
to be recorded in writing, make an order- course from a school or establishment licenses and
(i) disqualifying that person for a specified period regulated U/s. 12 or such other agency, as may be notified
for holding or obtaining any driving licence to by the Central Govt.
drive all or any classes or description of vehicles
specified in the licence; or (2)(B) – The name, syllabus and duration of the driver
refresher training course shall be such as may be
prescribed by the Central Govt.
(ii) revoke any such licence.
Sec. 19 (3):-
Sec. 19 (1)(A) – Where a licence has been forwarded Any person aggrieved by an order made by a
to the licensing authority under Sub Sec. (4) of Sec. 206, licensing authority under Sub Sec. (1) or Sub Sec. 1
the licensing authority, if satisfied after giving the holder (A), may, within 30 days of the receipt of the order appeal
of the driving licence an opportunity of being heard may to the prescribed authority, and such appellate authority
either discharge the holder of a driving licence or, it may shall give notice, to the licensing authority and hear either
for detailed reasons recorded in writing, make an order party, if so required by that party and may pass such
disqualifying such person holding or obtaining any licence order as it thinks fit and as order passed by any such
to drive all or any class or description of vehicles specified appellate authority shall be final.
in the licence -
Thus, it can be said that Sec. 19 contains
(a) for first offence, for a period of 3 months; provisions for the disqualification of the older of the
(b) for a second or subsequent offence, with licence, by the licensing authority for holding or obtaining
revocation of the driving licence of such person; the licence for a specified period or for revoking the
licence for the reasons enumerated in this clause. It also
Provided that where a driving licence is revoked makes provisions for appeal against the orders of the
under this section the name of the holder of such driving licensing authorities to the prescribed authorities.
licence may be placed in the public domain in such manner
as may be prescribed by the Central Govt. Q.22 Why is the registration of a motor vehicle
necessary ? Where and how is it registered
(2) Where an order under Sub Section (1) or Sub ?
Section (1-A), is made, the holder of a driving licence Ans: Necessity of Registration:
shall forthwith surrender his driving licence to the licensing According to Sec. 39 –
authority making the order, if the diving licence has not No person shall drive motor vehicle and no
already been surrendered and the licensing authority shall, owner of a motor vehicle shall cause or permit the vehicle
- to be driven in any public place or in any other place
unless the vehicle is registered in accordance with this
(a) if the driving licence is a driving licence issued Chapter-1V and the Certificate of Registration of the
under this Act, keep it until the disqualification vehicle has not been suspended or cancelled and the
has expired or has been removed; or vehicle carries a registration mark displayed in the
(b) if it is not a driving licence issued under this Act, prescribed manner:
endorse the disqualification upon if and send it
to the licensing authority by which it was issued; Provided that nothing in this section shall apply
or to a motor vehicle in possession of a dealer subject to
such conditions as may be prescribed by the Central
(c) in the case of revocation of any licence, endorse Govt.
the revocation upon it, and if it is not the authority
which issued the same, intimate the fact of the
revocation to the authority which issued that
licence;
12
 The registration of the vehicle for claiming the in such form and in such manner as may be prescribed
compensation with respect to the damage caused to the by the Central Govt.
vehicle is not a pre-requisite condition precedent.
(7) A certificate of registration issued under Sub Sec
Registration, where to be made: (3), whether before, or after the commencement of the
According to Sec. 40 – Subject to the provisions Act., in respect of a motor vehicle, other than a transport
of Sec. 42, Sec. 43 and Sec. 60, every owner of a motor vehicle, shall, subject to the provisions contained in this
vehicle shall cause the vehicle to be registered by a Act; be valid only for a period of 15 years from the date
registering authority in whose jurisdiction; he has the of issue of such certificate and shall be renewable.
residence or place of business where the vehicle is
normally kept. (8) An application by or on behalf of the owner of a
motor vehicle, other than transport vehicle, for the renewal
Registration, how to be made: of a certificate of registration shall be made within such
Sec. 41 of the Act states that – period and in such form, containing such particulars and
(1) An application by or on behalf of the owner of a information as may be prescribed by the Central Govt.
motor vehicle for registration shall be in such form and
shall be accompanied by such documents, particulars and (9) The application referred to Sub Section (8) shall
information and shall be made within such period as may be accompanied by such fee as may be prescribed by
be prescribed by the Central Govt.: the Central Govt.

Provided that where a motor vehicle is jointly (10) Subject to the provisions of Sec. 56, the
owned by more person than one, the application shall be registering authority, may, on receipt of an application
made by one of them on behalf of all the owners and under Sub-Sec. (8), renew the certificate of the
such applicant shall be deemed to be the owner of the registration for a period of 5 years and intimate the fact
motor vehicle for the purposes of this Act. to the original registering authority, if it is not the original
registering authority.
(2) An application referred to in Sub-Section (1)
shall be accompanied by such fee as may be prescribed Provided that the Central govt. may prescribe
by the Central Govt. different period of renewal for different types of motor
vehicles.
(3) The registering authority shall issue to the owner
of a motor vehicle registered by it a certificate of (14) an application for the issue of a duplicate
registration in such form and containing such particulars certificate of registration, shall be made to the last
and information and in such manner as maybe prescribed registering authority in such for containing such particulars
by the Central Govt. and information along with such fee as may be prescribed
by the central Govt.
(4) In addition to the other particulars required to
be included in the certificate of registration, it shall also Q.23. Define owner of vehicle under M.V. Act,
specify the type of the motor vehicle, being a type as the 2019, state also the provisions of transfer
Central Govt. may, having regard to the design, of ownership ?
construction and use of the motor vehicle, by notification Ans: Owner of the motor vehicles has been defined
in the Official Gazette, specify. U/S. 2 (30) of the M.V. Act 2019. According to it –
Owner means a person in whose name motor
(5) The registering authority shall enter the particulars vehicle stands registered, and, when a such person is a
of the certificate referred to in Sub Sec (3) in a register minor, the guardian of such minor, and in relation to motor
to be maintained in such form and manner as may be vehicle which is the subject of a hire-purchaser agreement
prescribed by the Central Govt. or an agreement of lease for an agreement of
hypothecation, the person in possession of the vehicle
(6) The registering authority shall assign to the vehicle, under that agreement.
for display, therein, a distinguishing mark (in their Act
referred to as the registration mark) consisting of one of Person in possession of the vehicle under an
the groups of such of those letters and followed by such agreement of lease may also be treated as an owner of
letters and figures as are allotted to the state by the Central vehicle within the meaning of Sec. 2 (30).
Govt. from time to time by notification in the official
Gazette, and displayed and shown on the motor vehicle A person who purchases an auto rickshaw from
another, who had himself purchase it under a hire purchase
13
agreement will be liable to maintain a suit for damages in purchased or acquired the motor vehicle, shall
the event of an accident to the auto rickshaw under the make an application for the purpose of
M.V. Act, in spite of the fact that the registration certificate transferring the ownership of the vehicle in his
was not transferred in the name of the auto rickshaw name; to the registering authority in whose
owner. [(1970) 1 Mad LJ 263]. jurisdiction, he has the residence or place of
business, where the vehicle is normally kept, as
Transfer of Ownership:- the case may be in such manner, accompanied
According to Sec. 50 (1) – Where the with such fee and within such period as may be
ownership of any motor vehicle registered under this prescribed by the Central Govt.
chapter is transferred:
(3) If the transferor or the transferee fails to report
(a) the transferor shall - to the registering authority the fact of transfer. Within the
(i) in the case of a vehicle registered within the same period specified in clause (a) or clause (b) of sub section
state, within 14 days of the transfer, report the (1), as the case may be or if the person who is required
fact of transfer, in such form with such documents to make an application U/ss (2) (hereafter in this section
and in such manner, as maybe prescribed by the referred to as the other person) fails to make such
Central Govt. to the registering authority within application within the period prescribed the registering
whose jurisdiction the transfer is to be effected authority may, having regard to the circumstances of the
and shall simultaneously send a cop of the said case require the transferor, or the transferee or the other
report to the transferee; and person as the case may be , to pay, in lieu of any action
(ii) In the case of a vehicle registered outside the that may be taken against him U/s. 177 such amount not
state, within 45 days of the transfer, forward to exceeding Rs.100/- as may be prescribed U/ss (5);
the registering authority referred to in Sub Clause
(i) – Provided that action U/s. 177 shall be taken
(A) The no objection certificate obtained U/s. 48; against the transferor or the transferee, or the other person
or as the case may be, where he fails to pay the said amount.
(B) in a case, where no such certificate has been
obtained, - (4) Where a person has paid the amount U/ss (3),
(I) the receipt obtained U/s. 48(2); or no action shall be taken against him U/s. 177.
(II) the postal acknowledgement received by the
transferor, if he has sent an application in this behalf by (5) For the purposes of Sub section (3), a State Govt.
registered Post, acknowledgement due to the registering may prescribe different amounts, having regard to the
authority referred to in Sec. 48; period of delay, on the part of the transferor or the
together with a declaration that he has not transferee in reporting the fact of transfer of ownership
received by Communication from such authority refusing of the motor vehicle or of the other person in making the
to grant such certificate or requiring him to comply with application U/ss. (2).
any direction subject to which such certificate may be
granted; (6) On the receipt of a report U/ss (1), or an
application U/ss (2), the registering authority may cause
(b) the transferee shall, within 30 days of the transfer, the transfer of ownership to be entered in the certificate
report the transfer to the registering authority within whose of registration.
jurisdiction, he has the residence or place of business,
where the vehicle is normally kept, as the case may be, (7) a registering authority making any such entry shall
and shall forward the certificate of registration to that communicate the transfer of ownership to the transferor
registering authority together with the prescribed fee and and to the original registering authority, if it is not the
a copy of the report, received by him from the transferor original registering authority.
in order that particulars of the transfer of ownership may
be entered in the certificate of registration. Q.24 When and why is the registration of any
motor vehicle suspended?
(2) Where – Ans: Suspension of Registration:-
(a) the person in whose name a motor vehicle stands Some provisions have been provided for the
registered dies; or suspension of any motor vehicle U/s. 53 of the M.V. Act
(b) a motor vehicle has been purchased or acquired 1988 (Amended) 2019.
at a public auction conducted by, or on behalf of According to Sec. 53 (1) –
Govt., the person succeeding to the possession
of the vehicle or, as the case may be, who has
14
 If any registering authority or other prescribed Q.25. What are the general provisions regarding
authority has reason to believe that any motor vehicle the construction and maintenance of
within its jurisdiction – vehicles ?
Ans: The general provisions regarding the construction
(a) is in such a condition that its use in a public place and maintenance of vehicles are as follows:-
would constitute a danger to the public, or that it fails to (1) Every motor vehicle shall be so constructed and
comply with the requirements of this Act or of the rules so maintained as to be at all times under the
made thereunder, or effective control of the person driving the vehicle.
(2) Every motor vehicle shall be so constructed as
(b) has been, or is being, used for hire or remand to have right hand steering control unless, it is
without a valid permit for being used as such. equipped with a mechanical or electrical signaling
device of a prescribed nature.
The authority may, after giving the owner an (3) If the Central Govt. is of the opinion that it is
opportunity of making any representation he may wish necessary of expedient so to do in public interest,
to make (by sending to the owner a notice by registered it may, by order published in the official Gazette,
post acknowledgement due at his address entered in the notify that any article or process used by
certificate of registration of the vehicle – manufacturer shall conform to such standard as
may be specified in that order.
(i) in any case failing under clause (a), until the
defects are rectified to its satisfaction; and Thus, it can be said that the Sec. 109 of M.V.
(ii) in any case falling under clause (b), for period Act 2019, sets out general provisions regarding
not exceeding 4 months. construction and maintenance of motor vehicles.

Sec. 53 (2) of the Act explains that an authority Q.26 Explain the powers of the Central Govt. to
other than a registering authority shall, when making a make rules regulating the construction,
suspension U/ss (1), intimate in writing the fact of such equipment and maintenance of motor
suspension and the reason therefore, to the registering vehicles ?
authority within whose jurisdiction the vehicle is at the Ans: According to Sec. 110 of the M.V Act 2019
time of the suspension. (amended) 2019, the Central Govt. has powers to make
rules regulating the construction, equipment and
According to Sub Sec (3) of Sec. 53 – maintenance of motor vehicles, namely –
Where the registration of a motor vehicle has
been suspended U/ss (1) for a continuous period of not (1) the width, height, length and overhand of vehicles
less than one month the registering authority, within whose and of the loads carried.
jurisdiction the vehicle was when the registration was (2) the size, nature, maximum retail price and
suspended, shall, if it is not the original registering authority, condition of tyres, including embossing thereon
inform that authority of the suspension. of date and year of manufacture and the
maximum load carrying capacity.
According to Sec. 53 (4), the owner of a motor (3) Breaks and steering gears.
vehicle shall, on the demand of a registering authority, or (4) the use of safety glasses including prohibition of
other prescribed authority which has suspended the the use of tinted safety glasses.
certificate of registration of the vehicle under this section, (5) Signaling appliances, lamps and reflectors.
surrender the certificate of registration. (6) Speed governors
(7) the emission of smoke, visible vapour, sparks,
Sec. 53 (5) of the M.V. Act, states that a ashes, grit or oil
certificate of registration surrendered U/ss (4) shall be (8) Reduction of noise emitted by or caused by
returned to the owner, when the order suspending vehicles
registration has been rescinded and not before. (9) the embossment of chassis number and engine
number and the date of manufacture
(10) Safety belts, handle bars of motor cycles, auto
dippers and other equipments essential for safety
of drivers, passengers and other road users
(11) Standards of the components used in the vehicle
as built safety device
(12) Provision for transportation of goods of
dangerous or hazardous nature to human life
15
(13) Standards for emission of air pollutants Q.28 Why is it necessary to wear a protective
(14) Installation of catalytic convertors in the class of headgear (helmet) ? Explain it.
vehicles to be prescribed Ans: Sec. 129 of the M.V. Act 1998 (Amended)
(15) Warranty after sale of vehicle and norms therefor 2019, makes the clear provisions regarding the wear of
protective headgear (helmet) for the safety of drives of
The H.C. judges being high dignitaries appointed motorcycles. According to it –
by the President, they are entitled to use of red light on
the top of their vehicle under M.V. Rules (1989). Rule Every person driving or riding (otherwise than in
108 has been framed under this provision. [A.I.R 1993 a side car, on a motor cycle of nay class or description)
All. LJ. 732] shall, while in a public place wear protective headgear
(helmet) conforming to the standards of Bureau of Indian
Q.27. What are the duties to obey traffic signal ? Standards (BIS):
Ans: According to Sec. 119, everyone has duty to
obey traffic signal. The duties of a person are as follows Provided that the provisions of this section shall
– not apply to a person, who is a Sikh, if he is, while driving
or riding on the motor cycle, in a public place, wearing a
(1) Every driver of a motor vehicle shall drive the turban:
vehicle in conformity with any indication given by
mandatory traffic signal and in conformity with the driving Provided further that the State Govt. may, by
regulations made by the Central Govt., and shall comply such rules, provide for such exceptions as it may think
with all directions given to him by any police officer for fit.
the time being engaged in the regulation of traffic in any
public place. Explanation –
Protective gear means a helmet which, -
(2) In this section Mandatory traffic signal means a (a) by virtue of its shape, material and construction,
traffic sign included in the Part A of the Schedule, or any could reasonably be expected to afford to the
traffic sign or similar form (that is to say, consisting of or person driving or riding on a motor cycle a degree
including a circular disc displaying a device, word or figure of protective from injury in the event of any
and having a red g round or border) placed or erected accident; and
for the purpose of regulating motor vehicle traffic U/ss (b) is securely fastened on the head of wearer by
(1) of Sec. 116. means of straps or other fastenings provided on
the headgear (helmet).
The duty cast under this section being absolute
absence of mens rea would be no excuse. [A.I.R (1979) Thus, Sec. 129 empowers the State Govt. to
Karnataka 79] prescribe protective headgear (helmet) to be worn by
the drivers or pillion riders of motor cycle other than a
The Right of a police constable at common law person who is a Sikh wearing turban and to make such
to regulate traffic is derived from his duty to protect life exemption as the State Govt. thinks fit.
and property and does not extend to direct a motorist to
take part in a traffic census unless by stature, he is Where person belonging to Sikh community
authorised so as to direct. [(1974) 1 WLR 374] were excluded from the mandatory provisions of wearing
a helmet while riding a motor cycle, such a provision is
Any traffic sign with which traffic may be neither discriminatory nor excessive delegated legislation.
controlled is a mandatory traffic sign. [A.I.R 1955 [A.I.R (1994) Karnataka (56)]
Hyderabad 259]
Q.29. What are the duties of a motor vehicle’s
There is a duty to cross a road only after verifying driver to show licence and the certificate of
that no vehicular traffic was moving on the road which registration ?
might accidentally hit the person. Failure to take Ans: Duty to show licence and the certificate of
precaution results, in case of an accident, such person registration:-
being held to be guilty of contributory negligence. [1972 Sec. 130 (1) provides that –
ACL 483 (Delhi)]. The driver of a motor vehicle in a public place,
shall on demand by any police officer in uniform, produce
his licence for examination:
Provided that, the driver may, if his licence has
been submitted to, or has been seized by, any officer, or
16
authority under this or any other Act, produce in lieu of Q.30. What are the duties of a driver of a motor
the licence a receipt or other acknowledgement issued vehicle in case of accident and injury to a
by such officer or authority in respect thereof and person ?
thereafter produce the licence within such period, in such Ans: Duties of a driver in case of accident and injury
manner as the Central Govt. may prescribe to the police to a person -
officer making the demand. According to Sec. 134 of M.V. Act 1988 (as
amended) in 2019 -
Sec. 130 (2) provides that the conductor if any, When any person is injured or any property of a
of a motor vehicle in any pubic place shall, on demand 3 party is damaged, as a result of an accident in which
rd

by any officer of M.V. Dept., authorized in this behalf, a motor vehicle is involved, the driver of the vehicle shall
produce the licence for examination. have following duties –

Sec. 130 (3) provides that the owner of the motor (1) to take all reasonable steps to secure medical
vehicle (other than vehicle registered U/s. 60), or in his attention for the injured persons, by conveying him to
absence the driver or other person in charge of the the nearest medical practitioner or hospital.
vehicle, shall on demand by registering authority or any
other officer of M.V. Dept., duly authorized in this behalf, (2) If no police officer is present, report the
produce the certificate of insurance of the vehicle and, circumstances of the occurrence, including the
where the vehicle is a transport vehicle, also the certificate circumstances, if any,
of fitness referred to in Sec. 56 and the permit; and if any
or all of the certificates of the permit are not in his (3) give the following information in writing to the
possession, he shall, within 15 days from the date of answer, who has issued the certificate of insurance, about
demand, submit photo copies (Xerox) of the same, duly the occurrence of the accident, namely:-
attested in person or send the same by registered post to
the officer who demanded it. (i) Insurance policy number and period of its
validity;
Explanation – For the purposes of this sub-section; (ii) date, time and place of accident;
“Certificate of insurance” means the certificate issued U/ (iii) particulars of the persons insured or killed in the
s. 3 of Sec. 147. accident;
(iv) name of the drive r and the particulars of his
Sec. 130 (4) provides that, if the licence referred driving licence.
to in Sub Sec. (2) or the Certificates or permit, referred
to in Sub Sec. (3), as the case may be, are not at the Q.31. Discuss the provisions regarding the control
time in possession of the person to whom demand is of traffic ?
made, it shall be a sufficient compliance with this section, Ans: (1) Limits of Speed:-
of such person produces the licence or certificates or Sec. 112 of the Act provides about the limits of
permit within such period in such manner as the Central speed.
Govt. may prescribe, to the police officer or authority (1) No person shall drive a motor vehicle or cause
making the demand. or allow a motor vehicle to be driven in any public place
at a speed exceeding the maximum speed or below the
Provided that, except to such extent and with minimum speed fixed for the vehicle under this Act or by
such modifications as may be prescribed, the provisions or under any other law for the time being in force.
of this subsection shall not apply to any person, required
to produce the certificate of registration or the certificate Provided that such maximum speed shall in no
of fitness of a transport vehicle. case exceed the maximum fixed for any motor vehicle or
class or description of motor vehicle by the Central Govt.
The duty to produce the licence arises only when by notification in the official Gazette.
the person making the demand is a police officer in
uniform. In the event of non-production of the permit (2) The State Govt. or any authority authorized in
licence and other documents, the police officer can this behalf by the State Govt. may, if satisfied that it is
presume that the vehicle has been used without registration necessary to restrict the speed of motor vehicle in the
and tax and seizure of vehicle would be legal. interest of public safety or convenience or because of
the nature of any road or bridge, by notification in the
official Gazette and by causing appropriate traffic signs
to be placed or erected U/s. 116 at suitable places, fix
such maximum speed limit or minimum speed limits as if
17
thinks fit for motor vehicles or any specified class or * Sec. 121 states about the signals and signaling
description of motor vehicles or for motor vehicles to devices
which, a trailer is attached, either generally or is a * Sec. 122 states about the leaving vehicle in
particular area or on a particular road or roads. dangerous position
* Sec. 123 states about the ridding on running
Provided that no such notifications is necessary, board
if any restriction under this section is to remain in force * Sec. 124 states about prohibition against
for not more than one month. travelling without pass or ticket
* Sec. 125 states about the obstruction of driver
(3) Nothing in this Section shall apply to any vehicle * Sec. 126 states about the stationary vehicle
registered U/s. 60 while it is being used in the execution * Sec. 127 states about the Removal of motor
of military maneuver within the area and during the period vehicles abandoned or left unattended in a public
specified in the notification u/ss (1) of Sec. 2 of the place
Maneuver, Field Fitting and Artillery Practice Act, 1938.
Q.32. Discuss “Insurance Against third party
Limits of Weight and limitations on use: risks” with reference to the M.V. Act
According to Sec. 113 (1) – (amendment) 2019 ?
The State Govt. may prescribe the conditions Ans: Insurance Against third party risks -
for the issue of permits for (transport vehicles) by the According to Sec. 146 of the M.V. (Amendment)
State or Regional Transport Authorities (RTO) and may Act 2019 -
prohibit or restrict the use of such vehicles, in any area (1) No person shall use, except as a passenger, or
or route. cause or allow any other person to use a motor vehicle
in a public place, unless there is in force in relation to the
(2) Except as may be otherwise prescribed, no use of the vehicles by that person or that other person,
person shall drive or cause or allow to be driven in any as the case may be, a policy of insurance complying with
public place any motor vehicle which is not fitted with the requirements of this chapter.
pneumatic tyres.
Provided that in the case of vehicle carrying or
(3) No person shall drive or cause or allow to be meant to carry, dangerous or hazardous goods, there
driven in any public place any motor vehicle or trailer – shall also be a policy of insurance under the Public
Liability Insurance Act, 1991.
(a) the unladen weight of which exceed unladen
weight specified in the certificate of registration of the Explanation –
vehicle, or For the purposes of this sub-section, a person
driving a motor vehicle merely as a paid employee, while
(b) the laden weight of which exceeds the gross there is in relation to the use of the vehicle no such policy
vehicle weight specified in the certificate of registration. in force as is required by this sub-section shall not be
deemed to act in contravention of the sub-section unless
(4) Where the driver or person in charge of a motor he knows or has reason to believe that there is no such
vehicle or trailer drives in contravention of sub section policy in force.
(2) or clause (a) of the subsection (3) is not the owner, a
court may presume that the offence was committed with (2) The provisions of sub section (1) shall not apply
the knowledge of or under the orders of the owner of to any vehicle owned by the Central Govt. or a State
the motor vehicle or trailer. Govt. and used for purposes not connected with any
commercial enterprises.
* Sec. 114 of M.V. Act 2019 states about the
power to have vehicle weighed. (3) The appropriate Govt. may by order, exempt
* Power to restrict the use of vehicles (Sec. 115) from the operation of Sub Section (1), any vehicle owned
* Sec. 116 of M.V. Act 2019 states about the by any of the following authorities, namely –
power to erect traffic sign
* Sec. 117 of M.V. Act 2019 states about the (a) The Central Govt. or State Govt., if the vehicle
parking places and halting station is used for government purposes connected with
* Sec. 119 states about the duty to obey traffic any commercial enterprise;
signs (b) any local authority
* Sec. 120 states about the vehicles with left hand (c) any state transport undertaking;
control
18
 Provided that no such orders hall be made in passengers of a goods vehicle caused by or arising out
relation to any such authority unless a fund has been of the use of the motor vehicle in a public place.
established and is maintained by that authority in
accordance with the rules made in that behalf under this
Act for meeting any liability arising out of the use of any Explanation:-
vehicle of that authority which that authority or any person For the removal of the doubts, it is hereby clarified
in its employment may incur to third parties. that the death of or bodily injury to any person or damage
to any property of a 3rd party shall be deemed to have
Explanation:- been caused by or to have arisen out of, the use of a
For the purposes of this sub section appropriate vehicle in a public place, notwithstanding that the person
govt. means the Central Govt. or a State Govt. as the who is dead or injured or the property which is damaged
case may be, and – was not in a public place at the time of accident, if the act
(i) In relation to any corporation or company owned or omission which led to the accident occurred in a public
by the central govt. or any state govt., means place.
the central govt. or that state govt.
(ii) In relation to any corporation or company owned (2) Not withstanding anything contained under other
by the Central Govt. and one or more state govt. law for the time being in force, for the purposes of 3rd
means the central govt. party insurance related to either death of a person or
(iii) In relation to any other state transport grievous hurt to a person, the Central Govt. shall prescribe
undertaking or any local authority means that a base premium and the liability of an insurer in relation
govt. which has control over that undertaking to such premium for an insurance policy U/ss (1) in
or authority. consultation with the Insurance Regulatory and
Development Authority.
Where the insurance policy specifically covers
third party risk, the liability of insurer is unlimited and (3) A policy shall be of no effect for the purposes of
entire amount is payable by Insurance Company. this Chapter XI, unless and until, there is issued by the
insurer in favour of the person by whom the policy is
Q.33. What are the requirements of policies and effected, a certificate of insurance in the prescribed form
limits of liability ? and containing the prescribed particulars of any condition
Ans: Requirements of the policies and limits of subject to which the policy is issued and of any other
liability:- prescribed matters; and different forms, particulars and
Sec. 147 of the M.V (Amendment) Act 2019 matters may be prescribed in different cases.
lays down the requirements of the policies and the limit
of liability, in respect of passengers and persons, other (4) Notwithstanding anything contained in this Act,
than passengers in relation to passenger vehicles and a policy of insurance issued before the commencement
goods carriages. According to Sec. 147 - of M.V. (Amendment) Act 2019, shall be continued on
the existing terms under the contract and the provisions
(1) In order to comply with the requirement of this of this Act shall apply as if this act had not been amended
Chapter XI, a policy of insurance must be a policy which by the said Act.
-
(5) Where a cover note issued by the insurer under
(a) is issued by a person who is an authorized the provisions of the Chapter XI, or the rules or
insurer; and regulations made thereunder is not followed by a policy
(b) insures the person or classes of persons specified of insurance within the specified times, the insurer shall
in the policy to the extent specified in sub section within 7 days of the expiry of the period of the validity of
(2) – the cover note, notify the fact to the registering authority
or to such other authority as the state Govt. may
(i) against any liability which may be incurred by prescribe.
him in respect of the death of or bodily injury to any
person including owner of the goods or his authorized (6) Notwithstanding anything contained to any other
representative carried in the motor vehicle or damage to law for the time being in force, as insurer issuing a policy
any property of a 3rd party caused by or arising out of of insurance under this section shall be liable to indemnify
the use of the motor vehicle in a public place; the person or classes of persons specified in the policy in
respect of any liability which the policy purposes to cover
(ii) against the death of or bodily injury to any in the case of that person or those classes of persons.
passenger of a transport vehicle, except gratuitous
19
Section has to be given wider, effective and practical (1) the policy must specify the persons or class of
Meaning – person, who are insured with respect t their
Sec. 147 is quite comprehensive in scope and liability to third parties.
meaning. It has to be given wider, effective, and practical
meaning, so that the object of the legislature, which was (2) the policy must specify the extent of liability which
faced with divergent views of various courts of the must extend to the extents specified in sub sec.
country giving different interpretation to the provisions (2); and
of Sec. 95 of the 1939 Act, causing immense harms to
many categories of persons by disentitling them from (3) the liability which may be incurred by the specified
claiming compensation either from the insurer or the persons or class of persons in respect to death
insured or both in the facts and circumstances of the case, or bodily injury to any person caused by or arising
is given effect to New Provisions, therefore, covers such out of the use of the vehicle insured in a public
kind of cases as well. The legislature clearly intended place.
that every policy of insurance in statutorily required to
cover the risk of liability in respect of classes of persons Q.34. State the provisions and schemes for
relating to all types of vehicles without exception and payment of compensation in case of hit and
with no defense to the insurance company disclaiming run motor accidents ?
the liability with respect to particular class of persons or Ans: the words “Hit and run motor accident” has been
particular kind of vehicles. defined in Sec.145 (d) of the M.V. Act 1988. According
to it, “hit and run motor accident” means an accident
* New India Assurance Co. V. Shakuntla Devi arising out of the use of motor vehicle or motor vehicles
A.I.R. 1997, J & K 40; (1997) 2 T.A.C 45 the identity whereof cannot be ascertained in spite of
(D.B)] reasonable efforts for the purpose.

Person specified inn policy need not necessarily be Special provisions as to compensation in case of
a registered owner: hit and run motor accidents:-
Sec. 147 deals with requirements of policies and According to Sec. 161 (1) Notwithstanding
limits of liability. IN Cl. (b0 Sec. 147 (1), it is provided anything contained in any other law for the time being in
that in order to comply with the requirements of this force or any instrument having the force of law, the Central
Chapter XI, a policy of insurance must be a policy which Govt. shall provide for paying in accordance with the
insures the person or classes of persons specified in the provisions of this Act and the Scheme made U/ss (3),
policy to the extent specified in Sub Sec (2). This Compensation in respect of the death of, or grievous
provision does not qualify that the person or classes of hurt to, persons resulting from hit and run motor accidents.
persons specified in policy must be a registered owner.
(2) Subject to the provisions of this Act and the
* New India Assurance Company Ltd. V. Ishroo Scheme made under Sub Section (3), there shall be paid
Devi (1988) 1 ACC C.C 641. as compensation;

Time from which insurance policy to be operative - (a) in respect of the death of any person resulting
In absence of specific mention of time, policy from a hit and run motor accident, a fixed sum of
becomes effective from previous midnight:- 2 lakhs rupees or such higher amount as may be
Should there be no contract to the contrary, as prescribed by the Central Govt.;
insurance policy becomes operative from the previous (b) in respect of grievous hurt to any person resulting
midnight, when bought during the day following. from a hit and run motor accidents, a fid sum of
However, in case there is mention of a specific time for Rs.50,000/- or such higher amount as may be
its purchase then a special contract to the contrary comes prescribed by the Central Govt.
into being and the policy would be effective form the
mentioned time. (3) The Central Govt. may, by notification in the
official Gazette, make a scheme specifying the manner in
Requirements rejoined by section 147 in relation which the scheme shall be administered by the Central
to use of particular vehicle:- Govt. or General Insurance Council, the form, manner
Sec. 147 of M.V. (Amendment) Act 2019 and the time within which application for compensations
enjoins upon the insurer contain requirement in relation may be made, the officer or authorities to whom such
to the use of particular vehicle. They are:-

20
application may be made, the procedure to be followed any matter relevant to the inquiry to assist it in holding he
by such officers or authorities for considering and passing inquiry.
orders on such application, and all other matters
connected with, or incidental to, the administration of (4) For the purpose of enforcement of its award,
the scheme and the payment of compensation under this the claims tribunal shall also have all the powers of a civil
section. court in the execution of a decree under the C.P.C. 1908
(5 of 1908), as if the award were a decree for the
(4) A scheme made U/ss (3) may provide that, - payment of money passed by such court in a civil suit.
(a) a payment of such sum as may be prescribed b
the Central Govt. as interim relief to any claimant The summary procedure U/s. 168 and 169 of
under such scheme; the M.V (Amendment) Act, 2019 should be consistent
(b) a contravention of any provision thereof shall be with the rules of natural justice, but the claims Tribunal is
punishable with imprisonment which may extend not bound by the technical rules of evidence.
to 2 years, or with fine which shall not be less
than Rs.25,000/- rupees but may extend to fine * The New India Assurance Co. Ltd. V. Anita &
Rs.50,000/- or with both; others, MAC APP No. 148/2006.

(c) the powers, functions or duties conferred or There must be some material on the basis of which
imposed on any officer or authority by such the Tribunal can arrive or decide things necessary to be
scheme may be delegated with the prior approved decided for awarding compensation and the Tribunal is
in committing of Central Govt. by such officer not expected to take or to adopt the nicery of a civil or
or authority to any other officer or authority. of a criminal case.

Sec. 161 of M.V. (Amendment) Act 2019 comes * Ranu Bala Paul and others V. Bani Chakravarty
into play for hit and run cases, where the offending vehicle and others 1999 ACJ 634.
remains unidentified.
The Accidents Claims Tribunal must take special
* United India Insurance Co. Ltd. V. Kuldip Kour care to see that innocent victims do not suffer and persons
2018 (3) PLR 286 liable to do not escape liability merely because of some
doubt here and some obscurity there. The court should
Q.35. Explain the procedure and power of the not succumb to nicetoes; technicalities and mystic may
claims tribunal ? be;
Ans: Sec. 169 of the Act lays down the procedure to N.K.V. Bros (P) Ltd. V. M. Karumai Ammal
be followed by the claim Tribunal in setting claims and Ors. ETC A.I.R. 1980 SC 1354
compensation and the powers of the claims Tribunal. - Summary procedure U/s. 169
- Neither civil nor criminal
According to Sec. 169 - - Claim tribunal bound to take broad view
(1) In holding any inquiry U/s. 168, the claims
Tribunal may, subject to any rules that may be made in Q.36. State the provisions for appeal to H.C
this behalf, follow such summary procedure as it thinks against the Orders of Claim Tribunal ?
fit. Ans: Sec. 173 of the M.V (Amendment) Act 2019
lays down the provisions of appeal to H.C against the
(2) The Claims Tribunal shall have all the powers of orders of Claims Tribunals.
a civil court for the purpose of taking evidence on oath
and of enforcing the attendance of witnesses and of According to sec. 173 -
compelling the discovery and production of documents (1) Subject to the provisions of Sub Section (2), any
and material objects and for such other purposes as person aggrieved by an award of claims Tribunal, may,
maybe prescribed; and the claims Tribunal shall be within 90 days from the date of the award, prefer an
deemed to be a civil court for all the purposes of section appeal to the H.C.
195 and Chapter XXVI of the Cr.P.C. 1973.
Provided that no appeal by the person who is
(3) Subject to any rules that may be made in this required to pay any amount in terms of such award shall
behalf, the claims tribunal may, for the purpose of be entertained by the H.C, unless, he has deposited with
adjudicating upon any claim for compensation. Choose it Rs.25,000/- or 50 P.C of the amount so awarded,
or for more persons possessing special knowledge of whichever is less, in the manner directed by the H.C.

21
 Provided further, that the H.C. may entertain the
appeal after the expiry of the said period of 90 days, if it Even, if the owner and driver remained ex parte
is satisfied that the appellant was prevented by sufficient before the Tribunal, the insurance company, the sole
cause for preferring the appeal in time. respondent cannot raise into appeal; defences available
to owner and driver, without obtaining the permission of
(2) No appeal shall lie against any award of a claims the appellate court.
Tribunal, if the amount in dispute in the appeal is less
than Rs.1 lakh rupees. The insurer filed appeal against award of
compensation along with the insured, as the appeal would
An appeal against the quantum of damages will be unmaintainable at the instance of the insurer alone.
not be allowed unless either the tribunal has applied a As, there was delay of 90 days in filing appeal, an
wrong principle of law or misdirected itself or the amount application for condonation of delay was filed. The
awarded was either inordinately low or inordinately high reason given for the condonation of delay on behalf of
needing it to be corrected in the interest f justice. the insurer cannot accrue to the benefit of the insured,
without whom the appeal would not have been
The H.C. in appeal will not interfere with the maintained.
amount of compensation, unless the award gives too low
or an executive amount of compensation. Q.37. Write a note on the Right to just
compensation ?
Insurance company is not entitled to question the Ans: Right to just compensation has been given under
quantum of compensation awarded by the Tribunal, if it the M.V (Amendment) Act 2019. It is a right of claimant
falls with the statutory unit and only in cases, where it who gets just compensation for his claim. In a claim
produces the document of the earliest stage. petition U/S. 166 of the Act, the tribunal is expected to,
and must, determine a just amount of compensation
The H.C. will not interfere with the decision of awardable to the victim of an accident, in accordance
the Tribunal condoning delay, unless it is shown that in with the well established principles of law and not
exercising it discretion the Tribunal acted unreasonably according to its whims or guess works. To arrive at a
or capriciously and adopted an unjudicial approach. just compensation, the first and paramount consideration
for a tribunal is to find out the loss of dependency to his
Tribunal awarding in its discretion additional legal heirs.
compensation for loss of the earning power of the injured
will not be interfered with in appeal. Multiplier method must be accepted for
determining and ensuring payment of just compensation
Where the insurer has not examined the doctor as it is the method which brings uniformity and certainty
who conducted Post Mortem examination to justify to awards made all over the country. The criteria for
contention that his opinion about age of deceased should determining compensation are not laid down specifically
be accepted and not made independent enquiry about in the M.V. Act 2019; but the claims Tribunal has to make
age of deceased, the tribunal has jurisdiction to form an award determining the amount of compensation, which
opinion about the age independently and margin of appears to be just. Compensation award made is final
variance of 2 years in expert opinion is permissible. and it cannot be made open to review in future by judicial
reform.
H.C can interfere in appeal filed against the
award passed by the Tribunal holding insurance company The word “just” of M.V Act 2019 connotes
jointly and severally liable for the entire amount, when reasonableness, something conforming to rectitude and
the owner of the offending vehicle has not produced the justice, something equitable and fair. In determining just
original policy before the tribunal. compensation the decision reached under the General
Law of Torts or Fatal Accidents Act, only furnish broad
An appeal jointly preferred by the insurance outlines, but are not binding on the tribunal under M.V.
company as well as by the owner of the vehicle is Act 2019. Just compensation is one which does not
maintainable. The insurance company is only in the become a source of profit to the claimants on account of
position of an indemnifier to the owner of the vehicle, the accident.
unless the owner of the vehicle is made liable, the insurer,
being an indemnifier, cannot be made liable. Hence, the A just and fair calculation of compensation would
person primarily liable as well as the person who be what the beneficiaries would have received from the
indemnifies him can be said to be aggrieved persons at deceased as support for their maintenance had the
the same time and can join together in a single appeal. deceased lived and earned. The paramount consideration
22
of the matter is only to protect he interest of the claimant, (4) The claims Tribunal shall treat any report of
so that the amount awarded to the by way of accidents forwarded to it under Sec. 159, as an
compensation serves the purpose and object of application for compensation under this Act.
compensation to them for the loss occasioned by the
tragedy of the accident. In the present case, the possibility (5) Notwithstanding anything in this Act or any other
of the deceased becoming successful in the life cannot law for the time being in force the right of a person to
be ruled out, there can be no exact, uniform rule for claim compensation for injury in an accident shall, upon
measuring the value of human life and the measurer of the death of the person injured, survive to his legal
damage cannot be arrived at by precise mathematical representatives, irrespective of whether the cause of death
calculation. is relatable to or had any nexus with the injury or not.

Q.38. What mechanism has been adopted for the Compensation determined by Multiplier:
settlement of accident claims cases under Multiplier should be applied on the age of the
the M.V. (Amendment) Act 2019 ? Discuss deceased.
fully. * Royal Sundaram Alliance Insurance Co. Ltd.
Ans: Application for Compensation:- Mandala Yadagiri Goud (2019) 5 SCC 554
According to Sec. 166 – (1) – an application
for compensation arising out of an accident of the nature Claimants to prove their case on the touchstone of
specified in sub-section (1) of sec. 166 may be made - Preponderance of Probabilities:
Court opined that claimants in proceedings under
(a) by the person who has sustained the injury; or the M.V. Act, 1988 have to prove their case on the
(b) by the owner of the property; or touchstone of preponderance of probabilities and not
(c) where death has resulted from the accident, by beyond reasonable doubt.
all or any of the legal representatives of the
deceased; or * Mangalam Ram V. Oriental Insurance Company
(d) by any agent duly authorised by the person Ltd.
injured or all or any of the legal representatives (2018) 5 SCC 656
of the deceased, as the case may be:
Multiplier of 15 should be followed:
Provided that where all the legal representatives Cases wherein the age of the deceased is up to
of the deceased, have not joined many such application 15 years, irrespective of Sec. 166 or Sec. 166A, under
for compensation, the application shall be made on behalf which the claim for compensation has been made, a
of or for the benefit of all the legal representatives of the multiplier of 15 should be followed.
deceased and the legal representatives who have not so
joined, shall be impleaded as respondents to the * Reshma Kumari V. Madan Mohan
application.
A child cannot be equated to such a non earning
Provided further that where a person accepts person:
compensation U/s. 164, in accordance with the The compensation awarded should enable the
procedure provided U/s. 149, his claims petition before child to acquire something or to develop a lifestyle which
the claims Tribunal shall lapse. will offset to some extent the inconvenience or discomfort
arising out of the disability. Appropriate compensation
(2) Every application U/ss (1) shall be made, at the for disability should take care of all non-pecuniary
option of the claimant, either to the claims Tribunal having damages. In other words, apart from this head, there
jurisdiction over the area in which the accident occurred, shall only be the claim for the actual expenditure for
or to the Claim Tribunal within the local limits of whose treatment, attendant, transportation etc.
jurisdiction the claimant resides or carries on business or
within the local limits of whose jurisdiction the defendant * Master MallikarjunV. Divisional Manager, The
resides, and shall be in such form and contain such National Insurance Company Ltd. & Anr., 2013
particulars as may be prescribed. (3) KLJ 815

(3) No application for compensation shall be Compensation cannot be granted for permanent
entertained unless; it is made within 6 months of the disability of any nature:
occurrence of the accident. Compensation for loss of earning power /
capacity has to be determined based on various aspects
including perm anent in jury / disability, but at the same
23
time, it cannot be construed that compensation cannot 50% Thumb Rule Theory towards Future
be granted for permanent disability of any nature. It has Prospects:
been mentioned by way of example that in a case of An addition of 50% of actual salary to the actual
non-earning member of a family who has been injured in salary income of the deceased towards future prospects,
an accident and sustained perm anent disability due to where the deceased had a permanent job and was below
amputation of leg or hand, it cannot be construed that no 40 years. The addition should be only 30% if the age of
amount needs to be granted for permanent disability. the deceased was 40 to 50 years. There should be no
addition, where the age of deceased is more than 50
Object: years.
In determining the quantum of compensation
payable to the victims of accident, who are disabled either Multiplier method involves:
permanently or temporarily efforts should always be made The multiplier method involves the ascertainment
to award adequate compensation not only for the physical of the loss of dependency or the multiplicand having
injury and treatment, but also for the loss of earning and regard to the circumstances of the case and capitalizing
inability to lead a normal life and enjoy amenities, which the multiplicand by an appropriate multiplier. The choice
would have been enjoyed, but for the disability caused of the multiplier is determined by the age of the deceased
due to the accident. and by the calculation as to what capital sum, if invested
at a rate of interest, appropriate to a stable economy,
Compensation not to be measured by the nature , would yield the multiplicand by way of annual interest.
location or degree of the injury: In ascertaining this, regard should also be had to the fact
The compensation to be awarded is not that ultimately the capital sum should also be consumed
measured by the nature, location or degree of the injury, up over the period for which the dependency is expected
but rather by the extent or degree of the incapacity to last.
resulting from the injury.
LR’s of deceased can maintain application:
* Sri Ramachandrappa V. The Manager Royal The claimants being legal heir are entitled to
Sundaram Alliance Insurance Company Ltd. compensation.
(2011) 13 SCC 236
Compensation towards Gratuitous Services:
A victim cannot be deprived of compensation
Award means the compensation to the extent towards gratuitous services, rendered by some of the
possible: family members, for the benefits of the tortfeasor.
The provision of M.V. Act, makes it clear that
the award must be just, which mean that the compensation Award of damages in a case of personal injury:
should, to the extent possible, fully and adequately restore The practice is now established and cannot be
the claimant to the position prior to the accident. The gainsaid that, in personal injury cases, the award of
object of awarding damages is to make good the loss damages is assessed under four main heads: first special
suffered, as a result of wrong done, as far as money can damages in the shape of money actually expanded;
do so, in a fair, reasonable and equitable manner. second, cost of future nursing and attendance and
medical expenses; third pain and suffering and loss of
* Raj Kumar Vrs. Ajay Kumar &others 2011 (1) amenities; fourth, loss of future earnings.
SCC 343
Award of the Claims Tribunal:-
Negligence on the touchstone of preponderance:- According to sec. 168 -
Court held that in a petition U/S. 166 of M.V. (1) On receipt of an application for compensation
Act 2019, the claim tribunal has to decide the negligence made U/S. 166; the claims Tribunal shall after giving notice
on the touchstone of preponderance of probability and of the application to the insurer and after giving the parties
holistic view is to be taken while dealing with the claim (including the insurer) an opportunity of being heard, hold
petition. an inquiry into the claim, or as the case may be, each of
the claims, and subject to the provisions of (Sec. 103)
* Bimala Devi and Ors. V. Himachala Road may make an award determining the amount of
Transport Corporation and Ors. (2009) 13 SCC compensation which appears to it to be just and specifying
530. the persons or person to whom compensation shall be
paid and in making the award the Claims Tribunal shall
specify the amount which shall be paid by the insurer or

24
owner or driver of the vehicle involved in the accident or and where it consists of two or more members, one of
by all or any of them, as the case may be: them shall be appointed as the Chairman thereof.

(2) The Claims Tribunal shall arrange to deliver (3) A person shall not be qualified for appointment
copies of the award to the parties connected expeditiously as a member of a Claims Tribunal unless he –
and in any case within a period of 15 days from the date (a) is, or has been, a Judge of a H.C., or
of award. (b) is, or has been, a District Judge, or
(3) When an award is made under this section, the (c) is qualified for appointment as a Judge of a H.C.
person who is required to pay any amount in terms of [or as a District Judge]
such award shall, within 30 days of the date of
announcing the award by the claims tribunal, deposit the (4) Where two or more Claims Tribunals are
entire amount awarded in such manner as the Claims constituted for any area, the State Govt. may by General
Tribunal may direct. or Special Order, regulate the distribution of business
among them.
The Claims Tribunal follows the following
principles in awarding the compensation. Claims Tribunal is a Tribunal constituted by State
Govt. for the expeditious disposal of motor claims. The
1. Just compensation: No applicability of strict rule general law applicable is only the common law and the
of evidence Law of Torts. Concept of owner’s liability without any
2. Adequate compensation for pain negligence is opposed to the basic principle of law. Mere
3. Financial conditions of the claimants should also fact that the party received an injury arising out of the
be examined use of a vehicle in public place cannot fasten the liability
4. Directions to insurance companies on the owner.
5. Directions in cases pending
6. Liberal interpretation Proof of negligence remains lynch pin to recover
7. Compensation should be just and fair compensation. Various enactments have attempted to
mitigate a possible injury to the claimant by providing the
payment of claim by the insurer.
Q.39. Explain the Constitution and Jurisdiction of
a Claims Tribunal? The Act does not create a new right or even anew
Ans: Sec. 165 of the M.V. Act 2019 empowers the remedy, but has simply changed the forum and the
State Govt. to constitute Claims Tribunal to adjudicate process of adjudicating claim for compensation arising
upon claims for compensation arising out of a motor from accidents.
vehicle accident, resulting a death or bodily injury to
persons or damage to any property of third parties. The Claims Tribunal is neither a Court nor a
According to Sec. 165 (1) of the Act - Court subordinate to H.C. Therefore, the rules made
by the H.C in exercise of its powers conferred by Sec.
A State Govt. may, by notification in the official 122 of C.P.C are not applicable. Tribunal is not a civil
Gazette, constitute one or more M.A. Claims Tribunals court and C.P.C does not apply to it, it applies only in
for such area as may be specified in the notification for specific matters to the proceedings before it. Hence
the purpose of adjudicating upon claims for compensation dismissal of claim petition in default cannot be made under
in respect to accidents involving the death of, or bodily C.P.C and consequently, its restoration can also not be
injury to, persons arising out of the use of motor vehicles, made under the C.P.C. Thus the Tribunal cannot refuse
or damages to any property of a third party so arising, or to revive the proceedings on technical grounds and confer
both. a benefit on the non-applicants without according
consideration to the cause of death of the deceased and
Explanation:- to the extent of their liability.
For the removal of doubts, it is hereby declared
that the expression “Claims for compensation in respect Claims Tribunal:
of accidents involving the death or bodily injury to Claims Tribunal is a civil court of limited
persons arising out of the use of motor vehicles” includes jurisdiction, and not a Court of Records. Therefore,
claims for compensation under [Sec-164] principle of sanctity of recitals in court proceeding
available to Court of Records is not applicable to
(2) A Claims Tribunal shall consist of such number proceeding of Tribunal.
of members, as the state govt. may think fit to appoint

25
Jurisdiction of Claims Tribunal:
Claims Tribunal is a Court although with limited
jurisdiction and not a mere Tribunal. The jurisdiction of
Claims Tribunal is discussed below -

(1) The Tribunal is not a court though; it performs

functions similar to a court. The Tribunal is free to follow
any procedure which if considers expedient in the interest
of justice, so long as the procedure is not inconsistent
with the rules of natural justice and does not contravene
the provisions of the Act or the Rules. In order to do
justice for which, it has been constituted, the Tribunal
would have power to apply the principles underlying the
provisions of C.P.C., even though rendered specifically
applicable.

(2) The Claims Tribunal is competent to entertain

the claim not only against the insurer, but also the insured.

(3) The Claims Tribunal is akin to a quasi-judicial

authority which should act fairly and in accordance with
principles of natural justice, law does not require the
deposition should be recorded verbatim or that, it should
be read over and got signed by witnesses etc.

(4) Jurisdiction of Claims Tribunal is confined to

claims of compensation in respect of those accidents
which arise out of the use of motor vehicles.

(5) The Motor Accident Claims Tribunal is acting as

a quasi-judicial authority in determining the award of
compensation. It should determine the amount of
compensation on the basis of cogent and sufficient
materials.

(6) Claims Tribunal is competent to entertain a claim

arising out of injury sustained by the claimant, who has
stretched his feet underneath a stationary lorry against
which another lorry came and dashed resulting in
stationary lorry moving, and running over the feet of the
claimant causing injuries.

(7) The Claims Tribunal has ample jurisdiction to

execute an award in the same manner, as decree is
executed by the Civil Court.

The accident must have occurred due to

actionable negligence of the owner or the drive of the
vehicle, causing an injury to or death of third party. When
the accident occurs due to negligence of the driver himself,
no claim can be entertained by the Claims Tribunal.

26
 Unit-IV (e) the product fails to contain adequate instructions
CONSUMER PROTECTION ACT 2019 or correct usage to prevent any hard or any warning
Q.40. What do you mean by product liability as regarding improper or incorrect usage.
per Consumer Protection Act 2019 ?
Ans: As per Sec. 2 (33) of Consumer Protection Act (2) A product manufacturer shall be liable in a
2019, as amended by Act 33 of 2021, product means product liability action even, if he proves that, he was
any article on goods or substance or raw material or any not negligent or fraudulent in making the express warranty
extended cycle of such product, which may be in of a product.
gaseous, liquid or solid state processing intrinsic value
which is capable of delivery either as wholly assembled Liability of product seller (Sec. 86)
or as a component part and is produced for introduction A Product Seller who is not a product
to trade or commerce, but does not include human tissues, manufacturer shall be liable in a product liability action, if
blood, blood products and organ. -
(a) he has exercised substantial control over the
As per Sec. 2 (34), product liability means the designing, testing, manufacturing, packaging or labeling
responsibility of a product manufacturer or product seller, of a product that caused harm; or
of any product or service, to compensate for any harm
caused to a consumer by such defective product (b) he has altered or modified the product and such
manufactured or sold or by deficiency in services relating alteration or modification was the substantial factor in
thereto. causing the harm; or

Product liability action [Sec. 2 (35)] means a (c) he has made an express warranty of a product
complainant filed by a person before a District independent of any express warranty made by a
Commission or State Commission or National manufacturer and such product failed to conform to the
Commission, as the case maybe, for claiming express warranty made by the product seller which
compensation for the harm caused to him (consumer). caused the harm; or

This Chapter VI of Consumer Protection Act (d) the product has been sold by him and the identity
2019 deals with the product liability. This Chapter shall of product manufacturer of such product is not known,
apply to every claim for the compensation under a product or if known, the service of notice or process or warrant
liability action by a complainant for any harm caused by cannot be effected on him or he is not subject to the law
a defective product manufactured, by a product which is in force in India or the order, if any, passed or to
manufacturer or serviced by a product service provider be passed cannot be enforced against him; or
or sold by a product seller. [Sec. 82]
(e) he failed to exercise reasonable care in
A product liability action may be brought by a assembling, inspecting or maintaining such product or he
complainant against a product manufacturer or a product did not pass on the warnings or instructions of the product
service provider or a product seller, as the case may be, manufacturer regarding the dangers involved or proper
for any harm caused to him on account of a defective usage of the product while selling such product and such
product. [Sec. 83] failure was the proximate cause of the harm.

Sec. 84 of C.P. Act 2019, states about liability Liability of product service provider (Sec. 85)
of product manufacturer. A product service provider shall be liable in a
product liability action, if -
Liability of Product Manufacturer (Sec. 84)
(1) A product manufacturer shall be liable in a (a) the service provided by him was faulty or
product liability action, imperfect or deficient or inadequate in quality, nature or
if - manner of performance which is required to be provided
(a) the product contains a manufacturing defect; or by or under any law for the time being in force, or pursuant
(b) the product is defective is design; or to any contract or otherwise, or;
(c) there is a deviation from manufacturing
specifications; or (b) there was an act of omission nor commission or
(d) the product does not conform to the express negligence or conscious withholding any information which
warranty; or caused harm; or

27
(c) the service provider did not issue adequate 2. State Consumer Disputes Redressal Commission
instructions or warnings to prevent any harm; or (Sec. 42 - Sec. 52)
3. National Consumer Disputes Redressal
(d) the service did not conform to express warranty Commission (Sec. 53 - Sec. 72)
of the terms and conditions of the contract.
District Consumer Disputes Redressal Commission:
Exceptions to Product Liability Action (Sec. 87) Sec. 28 of consumer Protection Act 2019 states
(1) A product liability action cannot be brought about the establishment o District Consumer Disputes
against the product seller if, at the time of harm, the Redressal Commission.
product was misused, altered or modified.
(1) The State Govt. shall by notification, establish a
(2) In any product liability action based on the failure District Consumer Redressal commission, to be known
to provide adequate warnings or instructions, the product as the District Commission, in each district of the state:
manufacturer shall not be liable, if - Provided that the State Govt. may, if it deems
(a) the product was purchased by an employer for fit, establish more than one district commission in a district.
use at the work place and the product manufacturer had
provided warnings or instructions to such employer; (2) Each District Commission shall consist of

(b) the product was sold as a component or material President

to be used in another product and necessary warnings
or instructions were given by the product manufacturer
to the purchaser of such component or material, but the
harm was caused to the complainant, by use of the end Member No. 1 Member No.2
product in which such component or material was used;

(c) the product was one which was legally meant to (a) a President; and
be used or dispensed only by or under the supervision of (b) not less than two and not more than such number
an expert or a class of experts and the product of members as may be prescribed, in consultation with
manufacturer had employed reasonable means to give the Central Govt.
the warnings or instructions for usage of such product to
such expert or class of experts; on Sec. 29 of C.P. Act 2019 states about the
qualification of the President and Members of the District
(d) the complainant, while using such product, was Commission.
under the influence of alcohol or any prescription drug Sec. 30 of C.P. Act 2019 states about e salaries,
which had not been prescribed by a medical practitioner. allowances and other terms and conditions of service of
President and members of District Commission.
(3) a product manufacturer shall not be liable for Sec. 31 of C.P. Act 2019 states about transitional
failure to instruct or warn about a danger which is obvious provisions.
or commonly known to the user or consumer of such
product or which such user or consumer, ought to have Jurisdiction of District Commission: (Sec. 34)
known, taking into account the characteristics of such (1) Subject to the other provisions of this Act, the
product. District Commission shall have jurisdiction to entertain
complaints, where the value of the goods or services paid
Q.41. Discuss the District Consumer Disputes as consideration does not exceed1 crore rupees:-
Redressal Commission, as per Consumer Provided that where the Central Govt. deems if
Protection Act 2019 ? necessary so to do, it may prescribe such other value, as
Ans: For speedy and inexpensive redressal of it deems fit.
consumer grievances, the Consumer Protection Act 2019,
provides for three tier Grievance Redressal Mechanism. (2) A complaint shall be instituted in a District
Different Sections of the Act provides for the Commission within the local limits of whose jurisdiction,
establishment of the three tier consumer Disputes -
Redressal Agencies as follows: (a) the opposite party or each of the opposite parties,
where there are more than one, at the time of institution
1. District Consumer Disputes Redressal of the complaint, ordinarily resides or carries on business
Commission (Sec. 28 - Sec. 41) or has a branch office or personally works for gain, or

28
(b) any of the opposite parties, where there are more Sec. 36 of the C.P. Act 2019, states about the
than one, at the time of the institution of the complaint, proceedings before District Commission.
actually and voluntarily resides, or carries on business or
has a branch office, or personally works for gain, provided Sec. 37 states about the Reference to mediation:-
that in such case the permission of the District (1) As the first hearing of the complaint after its
Commission is given; or admission, or at any later stage, if it appears to the District
Commission that there exists elements of a settlement
(c) the cause of action, wholly or in part arises, or which, mash be acceptable to the parties, except in such
cases as may be prescribed, it may direct the parties to
(d) the complainant resides or personally works for give in writing, within 5 days, consent to have their dispute
gain. settled by mediation in accordance with the provisions
of Chapter V.
(3) The District Commission shall ordinarily function
in the district headquarters and may perform its functions Q.42. Discuss the procedure of admission of
at such other places in the district, as the State Govt. complaint in District Consumer Disputes Redressal
may, in consultation with the State Commission notify in Commission ?
the official Gazette from time to time. Ans: Sec. 38 of Consumer Protection Act 2019 states
about the procedure of admission of complaint in District
Sec. 35 of C.P. Act 2019 states about the - Consumer Disputes Redressal Commission.

Manner in which complaint shall be made: Procedure on Admission of Complaint: (Sec. 38)
(1) A complaint, in relation to any goods, sold or (1) The District Commission shall, on admission of
delivered or agreed to be sold or delivered or any service a complaint; or in respect of cases referred for mediation
provided or agreed to be provided, may be filed with a on failure of settlement by mediation, proceed with such
District Commission by - complaint.

(a) the consumer - (2) Where the complaint relates to any goods, the
(i) to whom such goods are sold or delivered or District Commission shall -
agreed to be sold or delivered or such service is provided (a) refer a copy of the admitted complaint, within
or agreed to be provided; 21 days from the date of its admission to the opposite
(ii) who alleges unfair trade practices in respect of party mentioned in the complaint directing him to give his
such goods or service; version of the case within a period of 30 days; or such
extended period not exceeding 15 days as may be
(b) any recognized consumer association, whether granted by it;
the consumer to whom such goods are sold or delivered
or agreed to be sold or delivered or such services is (b) if the opposite party on receipt of a complaint
provided or agreed to be provided, or who alleges unfair referred to him under clause (a) denies or disputes the
trade practice in respect of such goods or service, is a allegations contained in the complaint or omits or fails to
member of such association or not. take any action to represent his case within the time given
by the District Commission proceed to settle the
(c) the Central Govt. the Central Authority or the consumer dispute in the manner specified in clauses (c)
State Govt. as the case may be: to (g);
Provided that the complaint under this Sub Section may
be filed electronically in such manner as may be (c) if the complaint alleges a defect in the goods
prescribed. which cannot be determined without proper analysis or
test of the goods, obtain a sample of the goods from the
Explanation:- complainant, seal if and authenticate it in the manner as
For the purposes of this sub section recognized may be prescribed and refer the sample so sealed to the
consumer association means any voluntary consumer appropriate laboratory along with a direction that such
association registered under any law for the time being in laboratory to make an analysis or test, whichever may
force. be necessary, with a view to finding out whether such
goods suffer from any defect alleged in the complaint or
(2) Every complaint filed under sub section (1) shall from any other defect and to report its findings thereon
be accompanied with such fee and payable in such to the District Commission within a period 45 days of
manner, including electronic form, as may be prescribed.

29
the receipt of the reference or within such extended period (ii) ex parte, on the basis of evidence brought to its
as may be granted by it; notice by the complainant, where the opposite party omits
or fails to take any action to represent his se within the
(d) before any of the goods is referred to any time given by the Commission;
appropriate laboratory under clause (c), require the
complainant to deposit to the credit of the commission (c) decide the complaint on merits, if the complainant
such fees as may be specified, for payment to the fails to appear on the date of hearing.
appropriate laboratory for carrying out the necessary
analysis o test in relation to the goods in question; (4) For the purposes of Sub Sections (2) an (3),
District Commission, may by order, require an electronic
(e) remit the amount deposited to its credit under service provider to provide such information, documents
clause (d) to the appropriate laboratory to enable it to or records, as may be specified in that order.
carry out the analysis or test mentioned in clause (c) and
on receipt of the report from the appropriate laboratory, (5) No proceedings complying with the procedure
it shall forward a copy of the report along with such laid down in sub section (2) and (3) shall be called in
remarks as it may feel appropriate to the opposition question in any court on the ground that the principles of
party; natural justice have not been complied with.

(f) if any of the parties disputes the correctness of (6) Every complaint shall be heard by the District
the findings of the appropriate laboratory, or disputes Commission, on the basis of affidavit and documentary
the correctness of the methods, of analysis or test evidence placed on record;
adopted by the appropriate laboratory, require the
opposite party or the complainant to submit in writing his Provided that, whereas application is made for
objections with regard to the report made by the hearing or for examination of parties in person or through
appropriate laboratory; video conferencing, the District Commission may, on
sufficient cause being shown, and after recording in
(g) give a reasonable opportunity to the complainant reasons in writing, allow the same.
as well as the opposite party of being heard as to the
correctness or otherwise of the report made by the (7) Every complaint shall be disposed of as
appropriate laboratory and also as to the objection made expeditiously as possible and endeavour shall be made
in relation thereto under clause (f) and issue an to decide the complaint within a period of 3 months from
appropriate order under section 39. the date of receipt of notice by opposite party where the
complaint does not require analysis or testing of
(3) The District Commission shall, if the complaint commodities and within 5 months if it requires analysis
admitted by it under Sub Sec (2) of Sec. 36 relates to or testing of commodities;
goods in respect of which the procedure specified in Sub
Sec (2) cannot be followed, or if the complaint relates to Provided that adjournment shall ordinarily be
any services - granted by the District Commission unless sufficient cause
is shown and the reasons for grant of adjournment have
(a) refer a copy of such complaint to the opposite been recorded in writing by the Commission;
party directing him to give his version of the case within a
period of 30 days, or such extended period not exceeding Provided further, that the District Commission
15 days as may be granted by the District administration. shall make such orders as to the costs occasioned by the
adjournment as may be specified by regulations;
(b) if the opposite party, in receipt of a copy of the
complaint, referred to him under clause (a) denies or Provided also that in the event of a complaint
disputes the allegations continued in the complaint, or being disposed of after the period so specified, the
omits or fails to take any action to represent his case District Commission shall record in writing the reasons
within the time given by the District Commission, it shall for the same at the time of disposing of the said complaint.
proceed to settle the consumer dispute.
(8) Where during the pendency of any proceeding
(i) On the basis of evidence brought to its notice by before the District Commission, if it appears necessary,
the complainant and the opposite party, of the opposite
party denies or disputes the allegations contained in the
complaint, or

30
it may pass such interim order as is just and proper, in (1) Where the District Commission is satisfied that
the facts and circumstances of the case. the goods complained against suffer from any of the
defects specified in the complaint, or that any of the
(9) For the purposes of this section, the District allegations contained in the complaint about the services
Commission shall have the same powers as are vested or any unfair trade practices, or claims for compensation
in a civil court under the C.P.C, 1908, while trying a suit under product liability are proved. it shall issue an order
in respect of the following matters, namely; to the opposite party directing him to do one or more of
the following, namely -
(a) the summoning and enforcing the attendance of
any defendant or witness and examining he witness on (a) to remove the defect pointed out by the
oath; appropriate laboratory from the goods in question;

(b) requiring the discovery and production of any (b) to replace the goods with new goods of similar
document or other material object as evidence description which shall be free from any defect;

(c) receiving of evidence on affidavit; (c) to return to the complainant the price, or as the
case may be, the charges paid by the complainant along
(d) the requisitioning of the reports of the concerned with such interest on such price or changes as may be
analysis or test from the appropriate laboratory or from decided;
any other relevant source;
(d) to pay such amount as may be awarded by it as
(e) issuing of commissions for the examination of any compensation to the consumer for any loss or injury
witness, or document; and suffered by the consumer due to the negligence of the
opposite party;
(f) any other matter which may be prescribed by
the Central Govt. (e) to pay a such amount as may be awarded by it
as compensation in a product liability action under Chapter
(10) Every proceeding before the District Commission VI;
shall be deemed to be a judicial proceedings within the
meaning of Sec.193 and 228 of the I.P.C. (45 of 1860) (f) to remove the defects in goods or deficiencies in
and the District Commission shall be deemed to be a the services in question;
criminal court for the purposes of Sec. 195 and Chapter
XXVI of the Cr.P.C. (g) to discontinue the unfair trade practice or
restrictive trade practice and not to repeat them;
(11) Where the complainant is a consumer referred
to in sub clause (v) of clause (5) of the Sec. 2, the (h) not to offer the hazardous or unsafe goods for
provisions of Order 1, Rule 8 of the 1st Schedule to the sale;
C.P.C. 1908 shall apply subject to the modification that
every reference therein to a suit or decree shall be (i) to withdraw the hazardous goods from being
construed as a reference to a complaint or the order of offered for sale;
the District Commission thereon.
(j) to cease manufacture of hazardous goods and
(12) In the even to death of a complainant who is a to desist from offering services which are hazardous in
consumer or of the opposite party against whom the nature;
complaint has been filed, the provisions of order XXII
of the 1st schedule to the C.P.C 1908, shall apply subject (k) to pay such sum as maybe determined by it, if it
to the modification that every reference therein to the is of the opinion that loss or injury has been suffered by a
plaintiff and the defendant shall be construed as reference large number, if consumers who are not identifiable
to a complainant or the opposite party as the case may conveniently :
be.
Provided that the minimum amount of sum so
Q.43 Discuss how District Commission give its payable shall not be less than 25 percent, of the value of
finding ? such defective goods sold or service provided, as the
Ans: Sec. 39 of C.P. Act 2019 states about the case may be, to such consumer;
findings of District Commission.

31
(l) to issue corrective advertisement to neutralize the
effect of misleading advertisement at the cost of the Provided further that no appeal by a person, who
opposite party responsible for issuing such misleading is required to pay any amount in terms of an order of the
advertisement; District Commission, shall be entertained by the State
Commission, unless the appellant has deposited 50
(m) to provide for adequate costs to parties, and percent of that amount in the manner as may be
prescribed:
(n) to cease and desist from issuing any misleading
advertisement; Provided also that no appeal shall lie from any
order passed under subs section (1) of Sec. 81 of the
(2) Any amount obtained under sub section (1) shall District Commission pursuant to a settlement by mediation
be credited to such fund and utilized in such manner as U/s. 80.
may be prescribed.
Q.44. Discuss the establishment of State
(3) In any proceeding conducted by the President Consumer Disputes Redressal Commission ?
and a member and if they differ on any point or points, Ans: Sec. 42 of Consumer Protection Act 2019,
they shall state the point or points on which they differ states about the establishment of State Consumer
and refer the same to another member for hearing on Disputes Redressal Commission.
such point or points and the opinion of the majority shall
be the order of the District Commission. (1) The State Govt. shall by notification establish a
state consumer Disputes Redressal Commission to be
Provided that the other member shall give his known as the State Commission, in the State.
opinion on such point or points refereed to him within a
period of 1 month from the date of such reference. (2) State Commission shall ordinarily function at the
state capital and perform its functions at such other places
(4) Every order made by the District Commission as the State Govt. may in consultation with the State
under sub section (1) shall be signed by the President Commission notify in the official Gazette;
and the Member who conducted the proceeding:
Provided that the State Govt. may by notification,
Provided that where the order is made as per establish regional branches of the State Commission, as
majority opinion under sub section (3), such order shall such place as it deems fit;
also be signed by the other member.
(3) Each State Commission shall consist of -
Sec. 40 of new Consumer Protection Act 2019 (a) a President
states about the Review by District Commission in certain (b) not less than four or not more than such number
cases. of members as may be prescribed in consultation with
the Central Govt.
The District Commission shall have the power
to review any of the order passed by it if there is an error
apparent on the face of the record, either of its own motion State Consumer
or on an application made by an of the parties within 30 Redressal Dispute Commission
days of such order.

Sec. 41 of C.P. Act 2019 states about the appeal against

order of District Commission. President

Any person aggrieved by an Order made by the

District Commission may prefer an appeal against such Member Member Member Member
order to the State Commission on the ground of facts or No.1 No.1 No.1 No.1
law within a period of 45 days from the date of the order;
in such form and manner, as may be prescribed.

Provided that the State Commission may entertain

an appeal after the expiry of the said period of 45 days if
it is satisfied that there was sufficient cause for not filing it
within that period;
32
 the opinion of the majority, if there is a majority but if the
members are equally divided, they shall state the point
Sec. 43 states about the qualification of President or points on which they differ and make a reference to
and Members of the State Commission. the President who shall either hear the point or points
himself or refer the case for hearing on such point or
Sec. 44 states about the salaries, allowances and points by one or more of the other members and such
other terms and conditions of service of President and point or points shall be decided according to the opinion
members of State Commission. of the majority of the members, who have heard the
case including those who first heard if;
Sec. 45 states about the transitional provision
relating to C.P. Act, 2019. Provided that the President or the other
members, as the case may be shall give opinion on the
Sec. 46 states about the officers and employees point or points so referred within a period of one month
of state Commission. from the date of such reference.

Sec. 47 of the Consumer Protection Act 2019 (4) A complaint shall be instituted in a State
states about jurisdiction of State Commission. Commission within the limits of whose jurisdiction, -

Jurisdiction of State Commission:- (Sec. 47) (a) the opposite party or each of the opposite parties,
(1) Subject to the other provisions of this Act, the where there are more than one, at the time of the institution
State Commission shall have jurisdictions - of the compliant, ordinarily resides or carries on business
or how a branch office or personally work for gain; or
(a) to entertain -
(i) Complaints where the value of the goods or (b) any of the opposite parties, where there are more
services paid as consideration, exceeds rupees 1 Cr. But than one; at the time of the institution of the complaint,
does not exceed rupees 10 crs.; actually and voluntarily resides or carries on business or
Provided that where the Central Govt. deems it necessary has a branch office or personally works for gain, provided
so to do, if may prescribe such other value, as it deems in such case the permission of the State Commission is
fit; given, or

(ii) Complain against unfair contracts, where the (c) the cause of action, wholly or in part, arises, or
value of goods or services paid as consideration does
not exceed 50 Cr. Rupees. (d) the complainant resides or personally works for
gain.
(iii) appeals against the orders of any District
Commission within the State and; Sec. 48 states about the transfer of cases.
Sec. 49 states about the procedure applicable
(b) to call for the records and pass appropriate to State Commission.
orders in any consumer dispute which is pending before Sec. 50 states about the review by State
or has been decided by any District Commission within Commission in certain cases.
the State, where it appears to the State Commission that Sec. 51 states about appeal to National
such District Commission has exercised a jurisdiction not Commission.
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 to National Commission (Sec. 51)
(1) Any person aggrieved by an order made by the
(2) The jurisdiction, powers and authority of the State State Commission in exercise of its powers conferred
Commission may be exercised by Benches, thereof, and by sub clause (i) or (ii) of clause (a) of subsection (1) of
a Bench may be constituted by the President with one or Sec. 47 may prefer an appeal against such order to the
more members as the President may deem fit; National Commission within a period of 30 days from
the date of the order in such form and manner as may be
Provided that the senior most member shall prescribed;
preside over the Bench.
Provided that the National Commission shall not
(3) Where the members of a Bench differ in opinion entertain the appeal after the expiry of the said period of
on any point, the points shall be decided according to
33
30 days, unless it is satisfied that there was sufficient Q.45. Discuss establishment of National
cause for not filing it within that period; Consumer Disputes Redressal Commission ?
Ans: Sec. 53 of the new Consumer Protection Act
Provided further that no appeal by a person, who 2019 states about the establishment of National
is required to pay any amount in terms of an order of the Consumer Disputes Redressal Commission.
State Commission shall be entertained by the National
Commission unless the appellant has deposited 50 P.C Establishment of National Consumer Disputes Redressal
of that amount in the manner as may be prescribed. Commission (Sec. 53)
(1) The Central Govt. shall, by notification, establish
(2) Save as otherwise expressly provided under this a National Consumer Disputes Redressal Commission,
Act or by any other law for the time being in force, an to be known as the National Commission.
appeal shall lie to the National Commission from any
order passed in appeal by any State Commission, if the (2) The National Commission shall ordinarily function
National Commission is satisfied that the case involves a at the National Capital Region and perform its function
substantial question of law. at such other places as the Central Govt. may in
consultation with the National Commission notify in the
(3) In an appeal involving a question of law the official Gazette;
memorandum of appeal shall precisely state substantial
question of law involved in the appeal. Provided that the Central Govt. may by
notification, establish regional Benches of the National
(4) Where the National Commission is satisfied that Commission, at suchplaces, as it deems fit.
a substantial question of laws is involved in any case, it
shall formulate that question and hear the appeal on that Composition of National Commission:- (Sec. 54)
question; The National Commission shall consist of -

Provided that nothing in this sub section shall be President

deemed to take away or abridge the power of the
National Commission to hear, for reasons to be recorded
in writing, the appeal on any other substantial question Member Member Member Member
of law, if it is satisfied that the case involves such question No.1 No.1 No.1 No.1
of law.

(5) An appeal may lie to the National Commission (a) President

under this section from an order passed ex parte by the (b) not less than four and more than such number of
State Commission. members as may be prescribed.

Sec. 52 of the C.P. Act 2019 states about the Sec. 55 of the C.P. Act 2019 states about the
hearing of appeal. qualification, etc. of President and Members of National
Commission.
If the State Consumer Commission held that the
appellant had filed a frivolous case against the respondent Provided that the President and Members of the
company and that he was attempting to misuse the National Commission shall hold office for such term as
statutory processes provided for better protection of the specified in the rules made by the Central Govt., but not
interest of consumers to attempt wrong gains and to create exceeding 5 years from the date on which he enters upon
"nuisance value". The court observed that the Consumer his office and shall be eligible for re-appointment;
Protection Act, 1986 is not meant to be a tool to attempt
wrong gains or to create nuisance value". Provided further that no President or Members
shall hold office as such after he has attained such age as
Further Commission dismissed the appeal and a specified in the rules made by the Central Govt. which
cost of Rs.500 was imposed on the appellant for filing a shall not exceed:-
frivolous case and abusing the process of law.
(a) in the case of the President, the age of 70 years.
* Uttam Kumar Samanta V. Vodaphone East Ltd. (b) in the case of any other member, the age of 67
2018 (4) CPR 413 years.

Sec. 56 states about the transitional provision.

34
 Sec. 57 states about the other officers and Sec. 59 of C.P. Act 2019 states about the
employees of National Commission. procedure applicable to National Commission.
Sec. 58 states about the jurisdiction of National Sec. 60 of C.P. Act 2019 states about the
Commission. Review by National Commission in certain cases.
Sec. 61 states power to set asides ex parte
(1) Subject to the other provisions of this Act, the orders.
National Commission shall have jurisdiction - Sec. 62 states about the transfer of cases.
(a) to entertain - Sec. 63 states about the vacancy in office of
(i) complaints where the value of the goods or President of National Commission.
services paid as consideration exceeds rupees 10 Cr; Sec. 64 states about the vacancies or defects in
appointment not to invalidate orders.
Provided that, here the Central Govt. deems it Sec. 65 states about the service of the notice
necessary so to do, it may prescribe such other value, as etc.
it deems fit; Sec. 66 states about the experts to assist
National Commission or State Commission.
(ii) Complaint against unfair contracts, where the Sec. 67 states about the Appeal against order of
value of goods or services paid as consideration exceeds National Commission.
10 crores; Sec. 68sates about the finality of orders.
Sec. 69 states about the limitation period.
(iii) appeals against the orders of any state Sec. 70 states about the Administrative control.
commission; Sec. 71 states about the Enforcement of orders
of District Commission, State Commission and National
(iv) appeals against the orders of the Central Commission.
Authority; and Sec. 72 states about the penalty for non-
compliance of order.
(b) to call for the records and pass appropriate Sec. 73 states about the appeal against order
orders in any consumer dispute which is pending before passed U/S. 72.
or has been decided by any State Commission, where it
appears to be National Commission that such State
Commission has exercised a jurisdiction not vested in it Q.46. Discuss the establishment of Consumer
by law, or has failed to exercise a jurisdiction so vested, Mediation Cell ?
or has acted in the exercise of its jurisdiction illegally or Ans: The New Consumer Protection Act 2019 states
with material irregularity. about mediation. Sec. 74 - Sec. 81 of C.P. Act 2019
have made certain provisions for mediation during
(2) The jurisdiction, powers and authority of the consumer disputes.
National Commission may be exercised by Benches
thereof and a Bench may be constituted by the President Sec. 74 of C.P. Act states about establishment
with one or more members, as he may deem fit; of consumer mediation cell.

(3) Where the members of a Bench differ in opinion (1) The State Govt. shall establish, by notification a
on any point, the point shall be decided according to the consumer mediation cell to be attached to each of the
opinion of the majority; if there is a majority, but if the District Commission and the State Commission of that
members are equally divided, they shall state the point state.
or points on which they differ, and make a reference to
the President who shall either hear the point or points (2) The Central Govt. shall establish, by notification
himself or refer the case for hearing on such point or a consumer mediation cell to be attached to the National
points by one or more of the other members and such Commission and each of the regional Benches.
point or point shall be decided according to the opinion
of the majority of the members who have heard the case, (3) A consumer mediation cell shall consist of such
including those who first heard it; persons as may be prescribed.

Provided that the President or the other member, (4) Every consumer mediation cell shall maintain -
as the case may be, shall give opinion on the point or (a) a list of empanelled mediators;
points so referred within a period of two months (2 (b) a list of cases handled by the cell;
months) from the date of such reference. (c) record of proceeding; and

35
(d) any other information as may be specified by performed by a person in pursuance of a contract or
regulations; otherwise in relation to any service and includes -

(5) Every consumer mediation cell shall submit a (i) any act of negligence or omission or commission
quarterly report to the District Commission, State by such person which causes loss or injury to the
Commission or the National Commission to which it is consumer, and
attached the manner specified by regulations.
(ii) deliberate withholding of relevant information by
Sec. 75 of C.P. Act 2019 states about such person to the consumer;
empanelment of mediators.
A breach of contract itself may result in deficiency
(1) For the purpose of mediation, the National in service. It may be possible in view of any loss or damage
Commission or the State Commission or the District suffered on account of such deficiency in service as are
Commission, as the case may be, shall prepare a panel arising out of breach of contract. The Act, however,
of the mediators to be maintained by the consumer specifically provides for a special remedy for such
mediation cell attached to it, on the recommendation of grievance and for compensation for the alleged loss by
a selection committee consisting of the President and a getting adjudication on the dispute by the Redressal
member of that commission. Forums constituted under the Act.

(2) The qualification and experience required for This is in addition to the ordinary remedy
empanelment as mediator, the procedure for available by way of approaching a civil court. The
empanelment, the manner of training empanelled contention that the matter is one arising out of breach of
mediation, the fee payable to empanelled mediators, the contract and the only remedy available is by approaching
terms and conditions for empanelled the code of conduct the civil court; is not tenable in view of the decision of the
for empanelled mediation, the grounds on which, and National Commission taken in Divisional Manager Life
the manner in which, empanelled mediators shall be Insurance Corporation of India V. Uma Devi
removed and empanelment shall be cancelled and other (1991)(2)(CP) 516 (522)(NCDRC), New Delhi.
matters relating thereto, shall be such as many be
specified by regulations. Q.48. What do you mean by Unfair Trade
Practices ?
(3) The panel of mediators prepared under Sub Ans: Sec. 2 (47) of C.P. Act 2019 defines unfair trade
Section (1) shall be valid for a 5 years, and the practices. It means a traded practice which for the
empanelled mediators shall be eligible to be considered purpose of promoting the s ale, use or supply of any
for re-empanelment for another term; subject to such goods or for the provision of any service, adopts any
conditions as may be specified by regulations. unfair method or unfair or deceptive practice including
any of the following practices, namely -
Sec. 76 states about the nomination of mediator
to discuss certain facts. (i) Making any statement, whether orally or in
Sec. 77 states about the Duty of mediator to writing or by visible representation including by means
disclose certain facts. of electronic record, which -
Sec. 78 states about the replacement of mediator
in certain cases. (a) falsely represents that the goods are of a
Sec. 79 states about the procedure for mediation. particular standard, quality, quantity, grade, composition,
Sec. 80 states about the settlement through style or model;
mediation.
Sec. 81 states about the recording settlement and (b) falsely represents that the services are of a
passing of order. particular standard, quality or grade;

Q.47.What do you mean by deficiency in service ? (c) falsely represents any re-built, second hand,
Ans: Sec. 2 (11) of new amended Consumer renovated, reconditioned or old goods as new goods
Protection Act 2019 states about "deficiency". It means
any fault, imperfection, shortcoming or inadequacy in the (d) represents that the goods or service and have
quality, nature and manner of performance which is sponsorship, approval, performance, characteristics,
required to be maintained by or under any law for the accessories, uses or benefits which such goods or
time being in force or has been undertaken to be services do not have;

36
(e) represents that the seller or the supplier has a or on anything on which the article is mounted for display
sponsorship or approval or affiliate in which such seller or sale; or
or supplier does not have;
(C) Contained in or on anything that is sold, sent,
(f) makes a false or misleading representation delivered transmitted or in any other manner whatsoever
concerning the need for, or the usefulness of any goods made available to a member of the public;
or services
Shall be deemed to be a statement made to the public,
(g) gives to the public any warranty or guarantee of by, and only by, the person who had caused the statement
the performance, efficiency or length of life of a product to be so expressed, made or contained;
or of any goods that is not based on an adequate or
proper test thereof; (ii) Permitting the publication of any advertisement,
whether in any newspaper or otherwise, including by way
Provided that where a defence is raised to the of electronic record, for the sale or supply at a bargain
effect that such warranty or guarantee is based on price of goods or services, that are not intended to be
adequate or proper test, the burden of proof of such offered for sale or supply the bargain price, or for a period
defence shall lie on the person raising such defence; that is, and in quantifies that are, reasonable, having regard
to the nature of the market in which the business is carried
(h) makes to the public a representation in a form on, the nature and size of business, and the nature of the
that purports to be - advertisement.

(A) A warranty or guarantee of a product or of any Explanation:

goods or services; or For the purpose of this sub clause, bargain price
(B) A promise to replace, maintain or repair an article means -
or any part thereof or to repeat or continue a service (A) a price that is stated in any advertisement to be
until, it has achieved a specified result. a bargain price, by reference to an ordinary price or
otherwise; or
If such purported warranty or guarantee or (B) a price that a person who reads, hears or sees
promise is materially misleading or if there is no the advertisement, would reasonably understand to be a
reasonable prospect that such warranty, guarantee or bargain price having regard to the prices at which the
promise will be carried out; product advertised or like products are ordinarily sold;

(i) Materially misleads the public concerning the (iii) Permitting -

price at which a (a) the offering of gifts, prizes or other items with
product or like products or goods or services have been the intention of not providing them as offered or creating
or are, ordinarily sold or provided, and for this purpose impression that something is being given or offered free
a representation as to price shall be deemed to refer to of charge, when it is, fully or partly covered by the amount
the price at which the product or goods or services has charged, in the transaction as a whole;
or have sold by sellers or provided by suppliers generally
in the relevant market unless it is clearly specified to be (b) the conduct of any contest, lottery, game of
the price at which the product has been sold or services chance or skill, for the purpose of promoting, directly or
have been provided by the person by whom or on whose indirectly, the sale, use or supply of any product or any
behalf the representation is made. business interest, except such contest, lottery, game of
chance or skill as may be prescribed.
(j) gives false or misleading facts disparaging the
goods, services or tradeoff another person. (c) withholding them the participants of any scheme
offering gifts, prizes or other items free of charge on its
Explanation: closure, the information about final results of the scheme.
For the purposes of this sub-clause, a statement
that is, - Explanation:
(A) expressed on an article offered or displayed for For the purpose of this sub clause, the
sale, or on its wrapper or container, or participants of a scheme shall be deemed to have been
informed of the final results of the scheme where such
(B) expressed on anything attached to inserted in, results are within a reasonable time published, prominently
or accompanying, an article offered or displayed for sale, in the same newspaper in which the scheme was originally
advertised;
37
(iv) permitting the sale or supply of goods intended The punishment prescribed in this regard is
to be used, or are of a kind likely to be used by consumers, imprisonment and fine and the quantum of the foregoing
knowing or having reason to believe that the goods do depends on the damage suffered by consumer (such as
not comply with the standards prescribed by the hurt, grievous hurt and death)
competent authority relating to performance, composition,
contents, design, constructions, finishing or packaging as Additionally, the Act also contemplates
are necessary to prevent or reduce the risk of injury to suspension of license (upto 2 years) issued to be
the person using the goods. aforementioned persons for the first offence and
cancellation of such license in the case of subsequent
(v) permitting the hoarding or destruction of goods, offence.
or refusal to sell the goods or to make them available for
sale or to provide any service, if such hoarding or Q.50. What is the false and misleading
destruction or refusal raises or tends to raise or is intended advertisement ? What remedy is provided to
to raise, the cost of those or other similar goods or consumer in this regard ?
services; Ans: Sec. 2 (28) of Consumer Protection act 2019
describes about the misleading advertisement, in relation
(vi) manufacturing of spurious goods or offering such to any product or service. It means an, advertisement,
goods for sale or adopting deceptive practices in the which -
provision of services; (i) falsely describes such product or services, or
(ii) gives false guaranteed to, or is likely to mislead
(vii) not issuing bill or cash memo or receipt for the the consumers as to the nature, substance, quantity or
goods sold or services rendered in such manner as maybe quality of such product or service; or
prescribed; (iii) conveys an express or implied representation
which, if made by the manufacturer or seller or service
(viii) refusing, after selling goods or rendering services, provider thereof, would constitute an unfair trade practice;
to take back or withdraw defective goods, or to or
withdraw or discontinue deficient services and to refund (iv) deliberately conceals important information.
the consideration thereof, if paid, within the period
stipulated in the bill or cash memo or receipt or in the False and misleading advertisements are most
absence of such stipulation, within a period of 30 days. vociferous. Such advertising is necessarily vulnerable.
Where the major purpose of a company advertising falsely
(ix) disclosing to other person any personal and misleading the customers, is to attract members of
information given in confidence by the consumer unless the public towards buying a particular product or, where
such disclosure is made in accordance with the provisions in it is fairly straight forwards that the methods employed
of any law for the time being in force. in this process have become increasingly complex.

Q.49. What do you mean by Unsafe and From the economic point of view, enormous
Hazardous products ? amounts are spent on the false and misleading
Ans: Consumer Protection Act 2019 empowers advertisements. A false advertisement represent the
CCPA to order recalling of goods or withdrawal of quality of a goods which it does not process, whereas a
services which are dangerous, hazardous or unsafe. misleading advertisement hides some contents and adds
Pertinently, a party (even in public interest), can file a other contents which mislead the consumers.
complaint to CCPA regarding a faulty product. Though
the new Act provides a remedy of appeal before the Where a dry cleaner exhibited his traded name
NCRDC, within 30 days however non-compliance of on the sign board as Modern, Dry cleaner, but he made
such recall order shall be punished with imprisonment numerous holes in two services of the complaint, entrusted
upto 6 months or with time upto Rs.20 lakhs. for dry cleaning valued of Rs.4000/-. His service was
found deficient.
Punishment for goods containing an adulterant
and spurious goods. In this case the opposite party though his name
board was making the public believe that he was doing
The act seeks to impose liability on persons who dry cleaning work, would admittedly he was not. He was
manufacture products which contain an adulterant (i.e. clearly indulging in unfair trade practice. Any false
.materials, including extraneous matter, which makes a representation would amount to unfair trade practice
product unsafe) and spurious goods. under the Act, which would prove costly for him.
38
* Modern Dry Cleaner V. A. Kanniappan, 1995 (b) such member of other official or non-official
(1) CLC members representing such interest as may be
prescribed.
The jurisdiction regarding unfair trade practice
adopted by the owner of the company has been
disturbed between the Consumer Forum and M.R.T.P. Procedure for meetings of Central Council:
Commission. The provisions of the Consumer Protection (1) The Central Council shall meet as and when
Act, are in addition to and not in derogation of the necessary, but at least of the council shall be held every
provisions of any other law for the time being in force. year.

Misleading advertisements and false (2) The Central Council shall meet at such time and
representation regarding the standard, quality, grade etc. place as the Chairperson may think fit and shall observe
are the first and primary category of unfair trade practices such procedure in regard to the transaction of its business,
under the MRTP Act U/s. 36-A of the Act. as may be prescribed.

There are generally false and misleading Objects of the Central Council (CCPC)(Sec. 5)
advertisements of traders, doctors etc. by which the The objects of the Central Council shall be to
newspapers are benefitted, whereas the consumers are render advice on promotion and protection of the
defrauded through the agency, of the newspapers, who consumers' rights under this Act.
publish each and every advertisement without trying the
least to know the genuineness of the thing or service Minister in Charge Chairperson
advertised. The newspapers equally responsible for the Consumer Affairs of CCPC
frauds committed by the traders upon the consumers and
they must be held responsible jointly with the traders for
damages to the consumers. Publication of false Member Member Member
advertisements must be made a cognizable offence
specifically in the Indian Penal Code. State Consumer Protection Councils (Sec. 6)
(1) Every State Govt. shall by notification, establish
Q.51. Discuss Consumer Protection Councils ? with effect from such date as it may specify in such
Ans: The Consumer Protection Act 2019 states about notification, a State Consumer Protection Council for such
different consumer protection councils. As per this new state to be known as the State Council.
law, there are 3 categories of consumer protection
councils - (2) The State Council shall be an Advisory Council
and consists of the following members, namely;
1. Sec. 3 to 5 - Central Consumer Protection
Council (a) the Ministry in charge of Consumer Affairs in the
2. Sec. 6 to 7 - State Consumer Protection Council State Govt. who shall be the Chairperson.
3. Sec. 8 to 9 - District Consumer Protection
Council (b) Such number of other official or non-official
members representing such interests as may be
Central Consumer Protection Council:- prescribed.
Sec (3) of C.P. Act 2019 narrates the Central
Consumer Council. (c) Such number of official or non-official members,
not exceeding 10, as may be nominated by the Central
(1) The Central Govt. shall by notification establish Govt.
with effects from such date as it may specify in that
notification, the CCPC (Central Consumer Protection (3) The State Council shall meet as and when
Council) to be known as the Central Council. necessary, but not less than 2 meeting shall be held every
year.
(2) The Central Council shall be an advisory council
and consist of the following members, namely: (4) The State Council shall meet at such time and
place as the Chairperson may think fit and shall observe
(a) the Minister in charge of the Dept. of Consumer such procedure in regard to the transactions of its
Affairs in the Central Govt., who shall be the Chairperson, business, as may be prescribed.
and
39
Objects of State Council:-
The objects of every State Council shall be to Q.52. Discuss the Central Consumer Protection
render advice on promotion of consumer right under this Authority ?
new Act, within the State. Ans: Sec. 10 to 27 are related with Central Consumer
Protection Authority.
Minister of Consumer Chairperson
Affairs in State in State Establishment of Central Consumer Protection Authority
(Sec. 10):-
(1) The Central Govt. shall, by notification, establish
with effect from such date as it may specify in that
Members 10 Nos notifications, a Central Consumer Protection Authority.

(2) The Central Authority shall consist of a Chief

Official/ Non Official Commissioner and such number of other commissioners
as may be prescribed, to be appointed by the Central
District Consumer Protection Council (Sec. 8) Govt. to exercise the powers and discharge the functions
(1) The State Govt. shall by notification, establish under this Act.
for every District, with effect from such date, as it may
specify in such notification, a District Consumer (3) The headquarters of the Central Authority shall
Protection Council to be known as the District Council. be at such place in the National Capital Region of Delhi,
and it shall have regional and other offices in any other
(2) The District Council shall be an advisory council place in India, as the Central Govt. may decide.
and consists of the following members, namely:-
Sec. 11 states about the qualification, method of
(a) the Collector of the District (by whatever name recruitment etc. of Chief Commissioner and
called) who shall be the Chairperson, and Commissioners.
Sec. 12 states about the vacancy etc. not to
(b) such number of other official and non-official invalidate proceedings of Central Authority.
members representing such interests, as may be Sec. 13 states about the appointment of officer-
prescribed. experts, professionals and other employees of Central
Authority.
(3) The District Council shall meet as and when Sec. 14 states about the procedure of Central
necessary, but not less than two meetings shall be held Authority.
every year. Sec. 15 states about the investigating wings.
Sec. 16 states about the power of District
(4) The District Council shall meet at such time and Collector.
place within the district as the Chairperson may think fit Sec. 17 states about the complaints to authorities.
and shall observe such procedure in regard to the Sec. 18 states about the powers and functions
transaction of its business, as may be prescribed. of Central Authority.

Collector of Chairperson in (1) The Central Authority shall -

District district Consumer (a) protect, promote and enforce the rights of
protection (DCPC) consumers as a class, and prevent violation of consumer
rights under this Act.

Member Member Member (b) prevent unfair trade practices and ensure that no
person engages himself in unfair trade practices;
Objects of District Council:-
The objects of every District Council shall be to (c) ensure that no false or misleading advertisement
render service on promotion and protection of consumer is made of any goods or services which contravenes the
rights under this Act within the districts. provisions of this Act or the rules or regulations made
thereunder;

(d) ensure that no person takes part in the publication

of any advertisement which is false or misleading.

40
(2) Without prejudice to the generally of the Sec. 20 states about the power of Central
provisions contained in Sub Sec. (1), the Central Authority to recall goods etc.
Authority may, for any of the purposes aforesaid, - Sec. 21 states about the power of Central
(a) inquire or cause an inquiry or investigation to be Authority to issue directions and penalties against false
made into violations of consumer rights or unfair trade or misleading advertisements.
practices, either suomotu or on a complaint received or Sec. 22 states about the search and seizure.
on the directions from the Central Govt.; The provisions of the Cr.P.C. 1973 relating to
search and seizure shall apply, as far as may be, for
(b) file complaints before the District Commission, search and seizure under this Act.
the State Commission or the National Commission, as Sec. 23, states about the Designation of any
the case may be, under this Act; statutory authority or body to function as Central
Authority.
(c) intervene in any proceedings before the District Sec. 24 is related with the process of appeal.
Commission or the State Commission or the National Sec. 25 states about the grants by Central Govt.
Commission, as the case may be, in respect of any and Sec. 26 is related with accounts and audit. Sec. 27
allegation of violation of consumer rights or unfair trade is related with the furnishing of annual reports etc.
practices;
Q.53. What do you mean by Consumer Rights ?
(d) review the matters relating to, and the factors Ans: Consumer Rights have been defined U/s. 2 (9)
inhibiting enjoyments of consumer rights, including of new Consumer Protections Act 2019.
safeguards provided for the protection of consumers Consumer rights includes -
under any other law for the time being in force and (i) the right to be protected against the marketing
recommend appropriate remedial measures for their of goods, products, or services which are hazardous to
effective implementations. life and property;

(e) recommend adoption of international covenants (ii) the right to be informed about the quality, quantity,
and best international practices on consumer rights to potency, purity, standard and price of goods, products
ensure effective enforcement of consumer rights; or series, as the case may be, so as to protect the
consumer against unfair trade practices;
(f) undertake and promote research in the field of
consumer rights; (iii) the right to be assured, whenever, possible,
access to a variety of goods, products or services at
(g) spread and promote awareness on consumer competitive prices;
rights;
(iv) the right to be heard and to be assured that
(h) encourage N.G.Os and other institutions working consumer's interests will receive due consideration at
in the field of consumer rights to co-operate and work appropriate forum;
with consumer protection agencies;
(v) the right to seek redressal against unfair trade
(i) man made the use of unique and universal goods practice or restrictive trade practices or unscrupulous
identifiers in such goods, as may be necessary, to prevent exploitation of consumers, and
unfair trade practices and to protect consumer's interest;
(vi) the right to consumer awareness.
(j) issue safety notices to alert consumers against
dangerous or hazardous or unsafe goods or services; Q.54. Give in brief the salient features of the
Consumer Protection Act 2019 ?
(k) advise the Ministers and Departments of the Ans: The Consumer Protection Act 2019 contains
Central and State Govts, on consumer welfare measures; 107 sections in 8 chapters. Consumer Protection Act
was enacted with the aim to protect the rights of
(l) issue necessary guidelines to present unfair trade consumers by establishing authorities for timely and
practices and protect consumer's interest. effective administration and settlement of consumers'
dispute. Some major changes have been brought in this
Sec. 19 states about the power of the Central Act of 2019.
Authority to refer matters for investigation or to other The Consumer Protection Act 2019, was firstly
Regulator. passed by the Lok Sabha on 30th July 2019. After, that
it was passed by Rajya Sabha, then it received the assent
41
of the President on August 9th 2019. The Consumer trade and the rapid development of E-Commerce have
Protection Act, 2019 came into force as Act No.35/2019. led to new delivery systems for goods and services and
This Act 2019 replaced the earlier Consumer Protection have provided new options and opportunities for
Act 1986, with the object of setting up of Consumer consumers. Equally, this has rendered the consumer
Disputes Redressal Commission and Forums at the vulnerable to new forms of unfair trade and unethical
District/State/National levels for adjudicating consumer business practices. Misleading advertisements, tele-
complaints. marketing, multi-level marketing, dirct selling and E-
Commence pose new challenges to consumer protection
Instead of bringing an amendment in the 1986 and will require appropriate and swift executive
Act the Government of India enacted a new Act interventions to prevent consumer's detriment. Therefore,
altogether so as to provide enhanced protection to the it has become inevitable to amend the Act to address the
consumers taking into consideration the booming E- myriad and constantly emerging vulnerabilities of the
commerce industry and the modern methods of providing consumers.
goods and services such as online sales, teleshopping,
direct selling and multi-level marketing, in addition to the In view of this, it is proposed to repeal and re-
traditional methods. Major changes have been brought enact the Act.
in the Act of 2019.
The Consumer Protection Act 2019 applies to
the whole of India. The C.P. Act 2019 is an Act to provide
for protection of the interests of consumers and for the
said purpose to establish authorities for timely and
effective administration and settlement of consumers'
disputes and for matters connected therewith or incidental
therein.

This Act of 2019 was enacted with the aim to

protect the rights of consumers by establishing authorities
for timely and effective administration and settlement of
consumers' dispute.

Some major changes have been brought in this

Act of 2019. This Act of 2019 expands the scope of the
definition of consumer. So as to include the consumers
involved in online transactions and it now squarely covers
the E-Commerce business within its ambit. It widened
the definition of unfair trade practices, also provides for
filing of complaints before the District Forums
electronically in accordance with the rules which are yet
to be prescribed by the Govt.

One of the key changes that have been brought

in the Act of 2019 is that the pecuniary jurisdiction for
the District, State and National Commissions has also
been changed. The pecuniary limit for the District
Commission has been increased to up to Rs. 1 crore
from up to Rs.20 lakhs; for State Commission it has been
increased to up to Rs.10 cr from up to Rs.1 cr; and for
National Commission, the pecuniary jurisdiction has been
increased to cover and above Rs.10 crore as against
Rs. 1 cr. in the 1986 Act.

Consumer markets for goods and services have

undergone drastic changes since the enactment of the
Consumer Protection Act in 1986. The modern market
place contains a plethora of products and services. The
emergence of global supply chains, rise in international
42