TORT: DEFINITION, NATURE, SCOPE, AND OBJECT OF TORT, TORT IN

INDIA
INTRODUCTION: Law is bundle of rules which regulates the external behavior of
individuals in society. Law of Torts is the branch of law controlling the behavior of
people in the society. It is a growing branch of law and its main object is to define
individual rights and duties in the light of prevalent standards of reasonable conduct
and public convenience. It provides pecuniary remedy for violation against the right
of individuals. The entire Law of Torts is founded and structured on the principle
that, ‘no one has a right to injure another intentionally or even innocently.
Meaning: In India, a tort refers to a civil wrong committed by one person against
another, resulting in harm, injury, or damage. Torts are primarily governed by
common law principles and judicial precedents, supplemented by statutory provisions
such as the Indian Penal Code, of 1860 and the Motor Vehicles Act, of 1988.

Unlike criminal law, which focuses on punishing offenders for offences against the
state, tort law centres around compensating victims for the harm they have suffered
due to the actions or omissions of others.

The word tort has been derived from a Latin word “tortum” which means twisted or
crooked. According to Salmond, “Tort is a civil wrong for which the remedy is a
common law action for unliquidated damages, and which is not exclusively the
breach of contract, or, the breach of trust, or, other merely equitable obligation.”

Tort is when the act of one party causes some harm to the other party due to
negligence, carelessness on the part of another party. The one who sues is known as
‘plaintiff’ and the one who is sued is known as ‘defendant’.

Nature and Characteristics of Torts

The nature and characteristics of torts are:

1. Act/omission: To start a tort there must be an act, which can either be

negative or positive. There must be some breach of duty to constitute such
wrongful act or omission. It means there was a duty to do or not to do a
certain action, or to behave in a particular manner which a reasonable man
is expected to act under certain circumstances. If a corporation maintains a
children park which has a poisonous plant but fails to put proper fencing. If
 one of the children eats a fruit from that tree and dies, then the corporation
can be held liable for such an omission. A person cannot be held liable for
social or moral wrong. For example, if somebody fails to help a starving
man then he cannot be held liable because it is a moral wrong unless some
legal duty can be proved.
2. 1. Injuria sine damnum: “Injuria” means unlawful interference with the right of
the plaintiff. “Damnum” means harm or loss suffered in terms of comfort,
money, health etc. When there is a violation legal rights without any harm to
the plaintiff, the plaintiff can approach the court.
3. In Ashby v. White, the plaintiff was detained by the defendant, a returning
officer. The plaintiff was a qualified voter at the parliamentary election but due
to detention, his voting right was violated. The plaintiff sued the defendant for
violation of his legal right. Since there is a right there is also a remedy
available for it.
4. Similarly, in Bhim Singh v. State of J&K , plaintiff was an MLA of J&K who
was detained wrongfully by the police officer while he was going to attend an
Assembly session. The fundamental right of personal liberty was violated and
moreover, he was not presented before the magistrate within the requisite
period. Here the wrongful and malicious act of the defendant was actionable,
so court awarded exemplary damages of Rs 50,000 to Bhim Singh.
5. Damnum sine injuria: According to this maxim, there is some injury caused
to the plaintiff without any unauthorised interference to the plaintiff’s legal
right. A person cannot claim damages in law even if the injury is caused due to
the deliberate act of the defendant, as long as the other party is exercising his
legal right. For example, a defendant set up a school exactly in front of the
school of the plaintiff. The plaintiff suffered loss because of the rival school as
he has to lower the fees and many students took admission in defendant’s
school. There is no remedy available for the loss suffered by him. The
defendant has not done anything in excess of his legal right.

Civil Wrong
A tort is a civil wrong, as opposed to a criminal offence. It involves a violation of a
legal duty owed by one person to another, resulting in harm, injury or damage.

Breach of Duty
A tort occurs when there is a breach of duty. The person committing the tort fails to
fulfil their legal obligation or duty towards another person, whether it is a duty to
exercise reasonable care, respect someone’s property rights or refrain from
committing intentional harm.
Harm or Injury
A tort results in harm, injury or damage to the person, property, reputation or
economic interests of another individual. This harm can be physical, emotional or
financial in nature.

Causation:
A tort requires a causal link between the wrongful act or omission and the harm
suffered. The breach of duty must be the direct cause of the harm or injury suffered
by the victim.

Legal Remedy:
Torts provide a basis for seeking legal remedies. The injured party, known as the
plaintiff, can file a lawsuit seeking compensation for the damages suffered, including
monetary compensation, injunctions and declaratory relief.

Compensation:
One of tort law’s key objectives is to compensate the victim for the harm suffered.
The compensation aims to restore the injured party to the position they would have
been in had the tortious act not occurred. The compensation awarded is determined
based on the nature and extent of the harm suffered.

Fault-Based Liability
In most tort cases, liability is based on fault. The person committing the tort must
have acted negligently, intentionally or recklessly. However, certain torts, such as
strict liability, do not require proof of fault and hold the defendant liable regardless of
their intent or level of care.

Individual Rights
Torts protect individual rights and interests. They provide a legal mechanism for
individuals to seek redress and hold others accountable for the harm caused. Torts
encompass a wide range of rights, including personal integrity, property rights,
privacy rights and economic interests.

Civil Proceedings
Tort claims are typically resolved through civil proceedings in a court of law. The
burden of proof lies with the plaintiff, who must establish that the defendant’s actions
or omissions caused the harm suffered. The defendant is given an opportunity to
present a defence against the allegations.

Superiority of Evidence
In tort cases, the standard of proof is generally based on a majority of the evidence.
This means that the plaintiff must prove that it is more likely than not that the
defendant’s actions caused the harm suffered. It is a lower standard of proof
compared to the “beyond a reasonable doubt” standard used in criminal cases.

Scope : Tort law's scope-of-the-risk rule states that a defendant is only liable for
another person's injury if the injury resulted from the risks that made the defendant's
conduct wrongful.

Tort law has several objectives, including:

 Compensation: To compensate victims for injuries caused by the actions of an individual or
organization. This can include monetary damages for medical expenses, lost wages, and
pain and suffering.
 Protection: To protect the legal rights that were compromised.
 Punishment: To punish those who wrongfully injure others.
 Deterrence: To deter people from acting in ways that may cause harm. This can include
imposing a financial cost on unsafe conduct.
 Restoration: To restore the victim to their condition before the injury.

Tort lawsuits are the largest category of civil litigation and can include a wide range of
personal injury cases.

The three main types of torts are intentional torts, negligence, and strict liability

2. Tort and Crime

Historically, torts were closely connected to criminal law and even today, certain
aspects of damage laws include punishing elements. However, it’s important to
recognize that torts are a specific type of civil wrong or injury. Civil and criminal
wrongs are distinguished based on the available legal remedies.

Civil wrongs lead to civil litigation, whereas criminal procedures aim to punish
defendants for accused acts. Civil proceedings focus on enforcing rights asserted by
the plaintiff against the defendant, while criminal proceedings seek to punish the
accused for their actions. Occasionally, the same mistake may be the subject of both
procedures.

PIGEON THEORY - Is it Law of tort or Law of Torts?

The aim of this article to give the research Regarding the Pigeon hole Theory. So

here if we put three Pigeons in two Pigeonholes ,at slightest two of the Pigeons put a

stop to up in the constant puncture then we can find that so far underlying attitude of

life as it captures the self-same essence of counting .this paper also discussing how

this Theory evaluate in law with different examples. To analysis this Theory I have

read many cases and journals, this Theory is from various e-resources, case law and it

is explorative in nature.

Is it law of Tort or law of Torts? This question faced by every law student in their 1st

or 2nd semester of law school, regarding this Theory Salomon give his view, What

Should be called law of Torts or we should called law of tort, to figure out this

problem Salmond introduced this Theory Pigeon hole Theory and said it's not law of

tort , it is law of Torts, according to this statement a person is liable for a tort

committed by him but there are some specific exceptions.

When a person is made liable for tort a tort which was committed by another, and the

liability is fixed. Strict liability and absolute liability are well recognized for these

kind of wrongful act. An act said to be tort when any harm causing injurious act. A

person can only escape from being guilty if that person can prove a legal justification

for not committing an offence, or an excuse to it. This article covers the main concept

of Tortuous liability and the variant theories of Winfield and Salmond (Pigeon hole

Theory) on addressing tortuous liability.

Aspects of criticism:
Should be called law of Torts or law of tort, to describe this question Salmond

introduced the Pigeon hole Theory and said it is law of Torts, basically This article

covers the general concept of Tortuous liability and the variant theories of Winfield

and Salmond (Pigeon hole Theory) on establishing tortuous liability.

Tort is a Civil Wrong committed by a person to another. But all civil wrongs are not

Torts. Then the question raise that how we can filter Tort from the whole mix of all

civil wrongs. There is solution for this question we can understand from the

definitions given by Winfield, Salmond, fraser.

Their definitions of Tort can be summarized as follows:

This introduced by Salmond which can justify tort as any harm constituted as legal

injury, must fit into Pigeon holes i.e specific tort because there is no space for

another tort. -tort is a civil wrong in cases of tort there remedy is a common law

action for all unliquidated damages and which is not exclusively the breach of a

contract or the breach of a contract or the breach of a trust, or other merely equitable

obligation. Tort = Civil wrongs (Breach of trust + Breach of contract + other merely

equitable obligations)

Winfield utility Theory talks about liability of Torts arises from breach of duty

primarily which is fixed by law. This duty is towards persons generally and its breach
is Redressable by an action for unliquidated damges. It provides deterrents, kind of a

relief for diverse forms of harms like mental illness, financial injuries and

impairment of reputation or goodwill. This highlights the regulation of liability

relating to the scope of tort, such as trespass to property, wrongful birth and unjust

life.

Tort = Breach of duty Remedy =Unliquidated damages

Fraser believed that an infringement of a right in rem of a private individual giving a

right of compensation at the suit of the Injured party. Tort = Infringement of a private

right of individuals Remedy = Compensation

A person who violates duty and infringe the private rights of another is liable for

committing the wrongful act. Such kind of liability called tortuous liability. The

liability which is not arise from any contract or other obligations and act of parties

but merely due to the breach of duty or trust is known as Tortuous liability. This

Theory is completely different from criminal liability.

It law of Tort or law of Torts?

This question can be answered by the theories of Winfield and Salmond (Pigeon

Hole Theory).
Salmond's Pigeon hole Theory

Salmond believed that it is law of Torts not law of tort (it's specific well-defined

wrongs and there is only a law of Torts and no law of tort) According to him there is

no single principle to check the tortuous liability. If any affected person can put the

tort under any specified tort, that means if a person is entitle to file a suit against only

that harm which comes within one of the categories of this law specific verse like

forgery, murder etc has specific Torts and all other wrongs fall outside of this

preview. he could be eligible for damages.

Otherwise there is no wrong and remedy. So the burden of proof is vested on the

injured party to establish that the tort is under any particular head or hole of specified

Torts. This Theory is popularly known as Pigeon hole Theory. Torts like defamation ,

nuisance, negligence, trespass etc are examples of already existing Pigeon holes. If

the injury cannot be placed under any heads ,it should not be considered as a tort and

therefore quashed the right of action.

Winfield's Theory

If we look at the definition which is given by Winfield failed to distinguish between

crime, tort, breach of contract. he believed that it is law of Tort. According to him

where the legal injury is strictly against the recognized law of the land or the general

principle of liability arises when a person inflict injury to another and or If a person
violates the duty and resulted in the legal injury of other person. which says, all

unjustified harms are tortuous.

Then we can called tort and the aggrieved party has a right of action for un liquidated

damages. Winfield leaves space for the creation of new Torts. His Theory has a wide

approach towards tortuous liability. New Torts originated with changing times can be

properly handled by Winfield's Theory. Thereby the extent of Torts covered and

range of remedy is also wide.

Reception law of Torts in India:

Winfield proposed that every mental and psychical injure will considered as a tort

unless justified�, whereas Salmond that no mental and psychical injury can be said

to be tort until or unless they satisfy the condition of Pigeon hole�. That's why the

book explaining this concept of tort written by Winfield is called law of tort whereas

book by Salmond is called law of Torts.

This concept has emerged in England and the purpose of this law is to provide a

remedy to the person Whose Rights has been violated. It is also the second hand of

criminal justice by awarding exemplary damages. This concept has been a famous

and secured place in the United States and the United Kingdom and many different

countries. But still it is a growing branch if the tree and still developing in India. This
tort is active in litigation, judiciary and people.

Criticism:

Pigeon Hole Theory has already been criticized, there are still many intelligent

people and they are still questioning the future development in the study of law.

Conclusion

We can see that law of tort is not written anywhere, tort law come under common

law. As we can say tort is not codified. Sometime court needs to think with time and

emerging new concerns. That's why both Theory have equal role addressing Torts as

it is a still growing area of law, which is given by Salmond and Winfield. In

conclusion, though the Pigeonhole Theory seems to be simple, this principal

furthermore can also be functional in our everyday life whether we realize it or not.

 Winfield theory of tort: According to the law of “tort” theory, all the
unjustifiable harm for which there is no excuse will be treated as a tort. The
Chief supporter of this theory is Winfield, according to him if any injury is
done to the neighbor he can sue the other person no matter if the wrong
happened has a particular name or not. The person held liable should prove
lawful justification. Indian judiciary supported Winfield’s theory in the case
of M.C Mehta v. Union of India.
 Salmond theory of torts: Salmond was the supporter of the law of “torts”,
according to him the liability under this law arises only when the wrong is
covered under one or other selected torts. This theory is also known as
Pigeon hole theory. To succeed under this theory, the plaintiff should place
the wrong under the already present torts.
Each theory is correct from its point of view it depends on the question of approach
or looking at things from a certain angle.
How law of torts is different from crime

S.N Tort Crime

O

1. The person who commits a tort The person who commits a crime is
is known as ‘tortfeasor’. known as ‘offender’.

2. Proceedings take place in Civil Proceedings take place in Criminal Court.

Court.

3. The remedy in tort is The remedy is to punish the offender.

unliquidated damages.

4. It is not codified as it depends Criminal law is codified as the

on judge-made laws. punishments are defined.

5. Private rights of the individuals Public rights and duties are violated
are violated. which affects the whole community.

Key Differences between Tort and Crime

1. A tort refers to a civil wrong, whereas a crime refers to a criminal offense.
 2. Tort cases typically involve private disputes between individuals, while crimes involve violations
of public law.
3. In tort cases, the victim seeks compensation for damages suffered, whereas crimes involve
punishment imposed by the state.
4. Liability in tort is often determined based on negligence or fault, while criminal liability requires
proof beyond a reasonable doubt.
5. Resolution of tort cases occurs through civil litigation, while criminal cases follow criminal
proceedings.
6. Tort cases do not require criminal intent; negligence or breach of duty is sufficient, whereas
criminal cases require a guilty mind (mens rea).
7. In tort cases, the parties involved are the victim (plaintiff) and the wrongdoer (defendant),
whereas in criminal cases, the parties are the state (prosecution) and the accused.
8. Examples of torts include negligence, defamation, and breach of contract, while examples of
crimes include theft, assault, and murder.
9. Civil penalties in tort cases often involve monetary compensation to the victim, while criminal
penalties in crime cases can include fines and imprisonment.
10. The standard of proof in tort cases is typically a balance of probabilities, whereas criminal cases
require proof beyond a reasonable doubt.

Types of torts

Intentional tort

In order to commit an intentional tort, some action must be done with a purpose i.e
there must be an intention to commit an act. For the welfare of society, it is generally
assumed that no one should attack the other person intentionally. For example, if you
hit a person with an iron rod on the head, there was an intention to cause injury to
that person in a particular way.

Intentional tort includes the following :

 1. Battery:
When some force is applied physically to the body of another person in an offensive
manner which causes some harm is called battery. Battery constitutes offensive
touching which is not PERMITTED by the other party. Even if the person did not
intend to injure the other person if he knows that his act could harm someone in any
way then also the battery is constituted. The personal liberty of the person is
interfered with in any way to cause harm. Common examples of the battery include
hitting a person with a stick, and punching someone on the face.

Elements of battery include:

 There must be an intent to use some physical force.

 There must be actual physical contact with the body of another person.
 There must be some harm.

2. Assault:
When the act of one person creates anxiety in the mind of another person that such an
act is likely or intended to cause such harm. It could range from pointing a gun at a
person to verbally threatening a person. Apprehension should not be confused with
fear. The concern is when a person is aware that the injury is pending. There is an
assault if a person threatens to shoot another while pointing a gun another him, even
if the victim later discovers that the gun was not loaded. Unlike the battery, there is
no physical contact in an assault. For example, if a person makes a flinch but does
not punch the person then there is an assault.

Essential elements of assault are:

1. There must be an apprehension of harm.

2. There must be an intention to use force.

Difference between Assault and Battery

S.N Assault Battery

o

1. The purpose here is to The purpose is to cause harm.

threaten.
 2. There is no physical contact, Physical contact is mandatory.
only such apprehension.

3. Pointing a stick towards a Hitting with the stick is battery as there is

person is assault. physical contact between the two people.

3. False imprisonment:
It is the unlawful confinement of the person without his will. A person doesn't need
to be put behind bars, a mere impossibility of escape against the will of the person
from a certain area is enough to constitute a tort of false imprisonment. It includes the
use of physical force (actual expression of force is not always necessary), a physical
barrier like a locked room, and invalid use of legal authority. False arrest is part of
false imprisonment which includes detaining of the person by the police without
lawful authority.

Essential elements are:

1. There must be an intention

2. Period of imprisonment
3. Knowledge of the plaintiff
4. Place of confinement

Malicious prosecution falls within the category of false imprisonment. It not only
includes malicious proceedings and arrests instituted falsely but also includes
malicious search, malicious bankruptcy, and liquidation proceedings. To prove
malicious prosecution, these essentials should be kept in mind:

1. There must be malice towards the plaintiff

2. The absence of reasonable cause
3. Prosecution by the defendant
4. Damage was suffered by the plaintiff as a result of the prosecution

4. Trespass:
It is the intentional, unreasonable assault of property, land, person, or goods. The
unreasonable interference can cause harassment or harm to the other person, no
matter how slight it is. The legal right of the owner of the property is violated
because he is deprived of his right to enjoy the benefit of the property by the
misappropriation or exploitation of his right. Types of trespass are:

 Trespass to person: When a wrong is done to the individual and in some

way personal liberty and interference is caused to the body of the person. It
is an assault of a person’s right to freedom. The dignity of the person is
protected by it, even if no physical injury is caused. For example, taking the
fingerprints of a person forcefully. It consists of following torts: assault,
battery, and false imprisonment.
 Trespass to land: Unlawful interference to the land of some other person is
the trespass to land. Land here includes not only the building and the
surface but also the subsoil and airspace. Even if there is no damage done to
the property but if the person enter the land of another person without his
permission, then it is trespass. If a delivery boy was supposed to deliver the
goods at the front door of the house but seeing the house open he enters one
of the rooms to which he was not entitled, then he has done trespass to land.
A person will not be liable for trespass if he enters the premises or land to
save the life of another person. For example, if a person sees in a baby
trapped in a fire in a house, then if he enters the house to save him he will
not be guilty of trespass. The owner of the property owes some duty to the
guest. If any guest is injured on the property in possession of the owner then
the owner can be held liable.
 Trespass to chattels: Also referred to as trespass to personal property or
goods, it is the interference or unauthorized use of a person’s lawful
possession of property without his permission. Chattel can be referred to
personal property whether moving or not but it does not apply to land or
real property. For example, two friends were studying together. After they
were done with studies one of the friends took the book of another assuming
it to his book. There is trespass to chattel as there was an intention to take
the book. So the mistake of ownership cannot be used as a defense in this
case. The person can recover actual damages which are measured by the
diminished value of the chattel that resulted from the defendant’s actions.

5. Defamation:
It is an injury or harm caused to the reputation, goodwill or character of the person.
There are two types of defamation in the form of Libel and Slander. Libel is the
publication of a false statement which is likely to cause harm to the reputation of
another person. Publication means it should come into the notice of the third party. It
must be in printed form for example writings, pictures, cartoons, statues etc. When
the false spoken statement results in lowering the reputation of another person then it
is slander. In, Harash Mendiratta v. Maharaj Singh, it was held that only the person
who has been defamed can maintain an action and not his friends, family or relatives.
Sometimes the statement may appear to be innocent but there might be some hidden
meaning to it. In order to file a suit for defamation, the plaintiff must prove such
hidden meaning. Defamation in the law of tort deals mainly with libel. To prove that
the statement was libelous, it must be

 False
 Written
 Defamatory
 Published
If the defamation is proved when a suit is instituted, damages can be given to the
plaintiff as compensation and in some cases, injunction can also be granted to restrain
certain publication because of which a person has an apprehension of being defamed.

Some of the defenses to defamation are:

 A substantially true report was published.

 When the case has been decided by the court it is not defamatory to express
any opinion on the merit of the case in good faith.
 Any truth which is published for the public interest.

Tort-based on Negligence

Negligence is the absence of reasonable care which is imposed on all persons so as

not to place the other person at foreseeable risk of harm through his conduct. It is the
failure to act is a particular way by taking into account the apprehended injury that
could be sustained due to carelessness to one party.

Elements of negligence are:

 Duty: There must be some duty or an obligation which one person owes to
another. If the defendant fails to fulfill the duty which he owes to the
plaintiff in the eyes of law then he can be held liable. So at first, it should be
assessed whether the defendant owes any duty of care to the plaintiff or not.
Sometimes the relationship between the plaintiff and defendant creates a
legal duty or obligation to act in a certain manner. For instance, the doctor
owes a duty of care to the plaintiff i.e to treat the patient in an appropriate
manner. If the doctor while treating the patient left a ring in his abdomen,
 then he can be said to be negligent in giving appropriate medical treatment.
The doctor owed a duty of care towards his patient which he failed to do so.
 Breach: once it has been assessed that defendant owes a duty of care to the
plaintiff, it should be further established that there was some breach of duty
i.e one person failed to exercise a take. “Amount of care” means the care
which a reasonable person would have taken in those circumstances.
Whether there was any breach of duty is both a subjective and objective
test. The defendant can be said to be negligent if he knew that his action
would affect the other person if he does not act in a particular way, for eg. if
the owner of the dog knows that his dog is of ferocious nature then he
should put some warning on the gate like “Beware of dog” or “Enter at your
own risk”. If he fails to do so then he can be held negligent in taking such
care.
 Causation (cause in fact): This element aims at establishing that there
should be some negligence on the part of the defendant which caused such
injury or harm to the plaintiff. The plaintiff should prove that the loss
suffered was caused by the defendant. The (but for) rule is used in proving
the causation i.e whether the injury suffered would have happened but for
the action of the target of your suit.
 Proximate cause: If a person cannot foresee that something bad could
happen to another person then how could he be held liable. To make the
person liable for alleged action it should be proved that his action was the
remote/closest cause for the injuries sustained. If the act is foreseeable then
only the person is liable otherwise not, for eg. If a motorcyclist hit the
pedestrian on the road due to which he suffered a severe injury on the head.
Seeing the sight on the internet, a woman whose house was on the road had
a heart failure. The motorcyclist was liable to the pedestrian as he failed to
take reasonable care while driving. But he is not liable to the woman who
had a heart attack because that was not foreseeable.
 Damages: The last element of negligence is damages. The person who had
sustained injury should be compensated for such harm. The test of
(reasonable person) is important to decide if the plaintiff is entitled to
compensation or not. The compensation given to the plaintiff should be
capable of putting him back in the position in which he was before the
incident took place. For eg., if the car driver hit the motorcyclist due to
which he sustained injuries and had to miss work, the compensation that the
car driver could be made to pay should bear his medical expenses, lost
earnings and the pain and suffering endured by him.
Defenses:
i) Volenti non fit injuria: If a person acts voluntarily and is aware of the risk
associated, he cannot recover damages if he suffers harm. This is the voluntary
acceptance of risk. The person should be free to make a choice when the employer
forces an employee to take the risk of which he is aware but is not willing to
undertake. Here, the defense cannot be used by the employer if an injury is sustained
by the employee because the employer had forced the employee to undertake the risk
against his will.

Essential of Volenti non fit injuria:

1. There was knowledge of risk by the plaintiff

2. He voluntarily undertook such risk
ii) Contributory negligence: When the damage which the plaintiff has suffered was
partly due to his fault and partly due to the fault of the defendant, this constitutes
contributory negligence. In order to prove contributory negligence, it must be proved
that the plaintiff failed to take reasonable care for his safety. In a collision between
two cars, the defendant was driving negligently at high speed. It was discovered that
the plaintiff was not wearing seat belt due to which he sustained the higher amount of
injuries than if he had been wearing a seatbelt. The plaintiff failed to take reasonable
care which was expected on his part. So he is liable for contributory negligence.

iii) Ex turpi causa: it means no defense or legal remedy can be initiated if the cause
of action which arose was due to the illegal conduct of the plaintiff i.e no action can
be found on a bad cause.

For example, Mr. Anil took a lift in a car which he knows was stolen by the other
person. Later, the car met with an accident, Mr. Anil cannot initiate an action against
the other party under this principle.

https://www.iasexpress.net/ie-pedia/m-c-mehta-v-union-of-india-and-others-1986/ -
M>C> MEHTA CASE

Strict liability under law of tort

It is the type of tort in which the defendant is held responsible for the injuries
sustained. The plaintiff need not prove whether the tort occurred or not, he can sue
the defendant for defective action. Under certain circumstances, if any wrong
happens then the perpetrator can be held responsible for such an act when the
activities are known to be fundamentally dangerous. This rule is applicable in India
as much as in England.

For example, ‘X’ stores flammable propane tank in a factory near to ‘Y’ house. As
the consequence of mischief of rat the tank was set on fire tank because of which Y’s
property was damaged. Although there was no fault of ‘X’, still ‘X’ is liable as ‘Y’
suffered because of him.

In Ryland v. Fletcher, the defendants employed independent contractors to construct

a reservoir on their land for providing water to his mill. The contractor failed to seal
the unused mines which he found while digging. When the water was filled in the
reservoir, it burst through the shafts wand and water flooded in plaintiff’s mines.
Although the defendant has no idea about the shaft and was not negligent. The
incident took place because of the fault of the contractor still the defendant was held
liable.

Following torts must be present to constitute the tort of strict liability:

1. Some dangerous thing must have been brought by a person on his land.
2. The thing kept on land must have escaped.
3. Non-natural use of land.

Exception to this rule:

i) Plaintiff’s own fault: If some intrusion by the plaintiff in defendant’s property
causes some harm to him then the defendant cannot be held liable. In Ponting v
Noakes, the plaintiff’s horse ate some poisonous leaves from the defendant’s tree
after which he died. The defendant was not held liable as it was the wrongful
intrusion by plaintiff’s horse. No damage would have been done if the horse would
not have entered defendant’s property.
ii) Act of god: Circumstances which are not under the control of human beings or
which are not foreseeable fall under this rule. The defendant cannot be held liable if
some natural event leads to the escape of dangerous thing.

iii) Consent of the plaintiff: If the plaintiff has consented to the accumulation of some
dangerous thing on plaintiff’s land and the source of danger was for the common
benefit of both the plaintiff and defendant then defendant cannot be held liable for
such escape.

iv) Act of third party: If the act of third person causes some harm to the plaintiff over
which the defendant has no control or the person is not defendant’s servant then he
cannot be held liable under this rule. If the act of third party is foreseeable then due
care must be taken by the defendant.

v) Statutory Authority: Act done under the authority of statue is a defense provided
there is no negligence.

Another liability which arose after the case of M.C Mehta v. Union of India was that
of Absolute liability. According to this liability, if a person is engaged in some
dangerous activity which is the source of his commercial gain then he owes some
duty of care to the society if the escape of dangerous thing could cause catastrophic
damage. He cannot take the exception of act of god or third party.

In M.C Mehta v. Union of India, oleum gas leaked from one of the unit of Shriram
Foods fertilizer Industry in the city Delhi. Due to the leakage of this gas, many
people were affected. If the rule of strict liability would have been applied in this
situation then it would have been easy for the defendant to escape by saying that the
damage was due the act of stranger. The Supreme Court was of the opinion that they
do not have to follow the 19th century rule of English Law and could evolve a new
rule suitable to the economic and social conditions existing in India. The court in this
case by applying the rule of absolute liability held the defendant liable. As per the
directions of the court, the organisations who filed the case could claim the
compensation on behalf of the victims
Other Tort

Nuisance: It is derived from a French word “nuire” which means to annoy or

harm. The person in possession of the property is entitled to free use and
enjoyment of his land and property without any unauthorised interference. If any
interference is caused then the tort of nuisance has occurred. It is different from
trespass which is the interference of plaintiff’s possession through some tangible
object or material whereas nuisance is the interference with the right accessory to
possession.
Elements of nuisance:

1. There must be some wrongful act committed by the defendant.

2. The wrongful act must result in some injury to the legal right of the
plaintiff.

Kinds of Nuisance

 Public Nuisance: When the act of the person affects a large number of
people then it is termed as public nuisance. The aim of this tort is to avoid
unwarranted disturbance and ensure the right to safety and right to enjoy the
possession peacefully. For instance, shooting firecrackers in the middle of
the road. The claimant should prove that they have suffered “special
damage” over and above the effects on the other affected people in the
“class”.
 Private Nuisance: It is the interference with the enjoyment or use of land or
some right connected to it. The interference can be caused due to things like
smell, noise or any kind of vibration etc. For example, damage caused to the
health of person due to noxious fumes or the breaking of the window by a
cricket ball. In order to initiate the tort of private nuisance, the person
should prove that there was some interference, then the interference caused
was unreasonable. Nuisance can be caused either to property or some
physical discomfort.

Defenses

 If a private nuisance continues for 20 years then it is a special defense and

the right to continue a private nuisance may be acquired as an easement by
 prescription. This type of nuisance can be enjoyed for a period of 20 years
and after that, it will be legalised.
 If a statute has allowed or authorised to do a particular act, all remedies,
whether by way of indictment or action, are taken away, provided that every
reasonable precaution consistent with the exercise of the statutory power
has been taken away.

Remedies

 Damages: To restore the plaintiff in the position he was if the tort would not
have been committed, damages are awarded to the claimant. The injury
caused includes not only physical injury but also emotional, economic or
reputational injury and many other. Damages payable to the plaintiff are
made in terms of money. Damages depend upon the cause, fact and the
circumstances of the case. Damages can be awarded more than that claimed
by the defendant.

Q. Kinds of damages in Tort?

Meaning of Tort
A tort is a civil wrong which means that whenever a person commits an unlawful act
under this law, the nature of the case filed in the courts is civil. In civil cases, the
person usually files the case himself so that he can claim compensation from the
person who has caused loss to him by his unlawful act.

Meaning of Damages
There are many remedies which are available to the injured person and the most
common remedy is the award of damages. Damages is that amount of money which
the injured person gets from the person who caused injury to him.

Q. Torts relating to immovable property consist of the following categories:

Introduction
A is a farmer and his farm is next to the land of B who has cows. One day, B’s cows
enter the farm of A and cause damage to his farms. Here the owner of cows i.e. B
will be liable for the tort of trespass which is a tort relating to immovable property. In
order to show that a tort of immovable property has been caused, one needs to fulfil
the following conditions: -

1. There is a right to hold or possess

2. There is either disturbance or usurpation(seize) of such right
3. Such disturbance or usurpation may be caused by actual physical damage to
property or by interference with or impairing of the enjoyment of it

Torts relating to immovable property consist of the following categories:

1. Trespass
2. Injury to reversionary rights
3. Waste
4. Dispossession
5. Wrongs to natural rights and easement
6. Nuisance

Trespass
There are two kinds of trespass:

1. Trespass quare clausum fregit- unlawful entry upon land

2. Trespass de bonis asportatis- the wrongful taking of goods

In order to constitute the tort of trespass one does not need to prove-

 Force
 Unlawful detention
 Actual damage
 Breaking of an enclosure

Trespass is actionable per se which means it does not need any proof of actual
damage caused to the property.
Trespass may be committed by any of the following ways-

 By entering wrongfully upon the land of the plaintiff– the slightest crossing
of the boundary is sufficient for committing trespass. A man is not liable for
trespass committed involuntarily, for instance when he is thrown upon the
land by someone else (Smith v. Stone). Moreover, it is presumed that if a
person owns the surface of a piece of land then he owns all the underlying
strata.
 By remaining there in the land– if a person has lawfully entered on the land
of the plaintiff but remains there even after his right of living there has
ceased commits trespass; for instance, a tenant living on the land of the
plaintiff even after the time period of the agreement is over.
 By interfering with the land or by constructive entry– every interference
with the land of the another is deemed to be a constructive entry which
amounts to trespass. For instance, throwing a stone upon the plaintiff’s land
or piling of garbage against his wall is a trespass to land.

Remedies available to the plaintiff

A person whose land is trespassed has the following remedies:

1. An action can be brought by him against the wrongdoer.

2. Force can also be used by the plaintiff in order to defend his possession or
eject the trespasser from his land.
3. An injunction can also be obtained by the plaintiff from the court under the
Specific Relief Act, 1963 to restrain a continuing or threatened trespass.

Defences available to the defendant or the wrongdoer

1. Prescription
2. Leave and license
3. Authority of law
4. Act of public necessity
 5. Self-defence
6. Re-entry on land
7. Re-taking of goods and chattels
8. Abatement of nuisance
9. Special property or easement

Trespass ab-initio

When a person has the authority of the law to enter upon the land of the another but
later is guilty of an act such as misfeasance or misconduct making his original entry
tortuous. Here he is liable for damages for both entering the land and further
misconduct.

The following conditions must be fulfilled in order to apply the doctrine of

trespass ab initio-

1. The authority must be given by law.

2. The subsequent act must be misfeasance.
The Six Carpenters’ Case 1610

In this case, the six carpenters entered an inn by the authority of law and consumed
food and had fine but refused to pay. They were held not liable under this doctrine
and the court laid down three major principles–

 If a man abuses an authority given to him by law, he becomes a trespasser

ab initio.
 In an action of trespass, if an authority is pleaded, the subsequent abuse of
that authority may be removed.
 A mere non-feasance does not account to such abuse as renders a man a
trespasser ab initio

Injury to Reversionary Rights

A reversioner is a person who has a lawful interest in land but not its present
possession, e.g. landlord and a reversioner interest is any interest, vested or
contingent, the enjoyment of which is postponed. Reversionary interests are injured
by either the strangers or by tenants.
Waste
It is spoil or destruction of houses, gardens, trees or unlawful damage caused to the
immovable property by the person who was just given lawful possession of that
property. Such damage must be of permanent nature and should cause prejudice to
the owner or the reversioner.

Essentials of waste

1. An act or omission
2. Such act/omission must be done by the tenant or anyone in possession
3. It must cause prejudice to the owner/reversioner

Damages & Injunction for waste

In a suit against waste, the plaintiff may recover the actual damage caused to the
immovable property and can also obtain an injunction on the actions of the
wrongdoer of the defendant.

Dispossession
An owner is said to be dispossessed of his immovable property when the defendant
does an act which declines the overall dominion of the plaintiff over the property. An
owner can also be said to be dispossessed of his property when the defendant
acquires settled possession of the land with the intention of acquiring exclusive
control over the immovable property of the owner (Sundara Sastrial v. Govinda
Mandaroyan, 1908).

Remedies available to the owner for the dispossession caused

 To recover possession of the land– action can be brought by the owner of

the immovable property against the defendant to recover the possession of
the land. In India, one can file a suit under S.6 of the Specific Relief Act,
1963 for recovering the possession which was dispossessed because of the
acts of the defendant within a period of six months.
 Jus tertii– the owner can also recover the possession of the immovable
property through the doctrine of jus tertii i.e. by showing that the plaintiff
 has a better right than the defendant to acquire the possession of the
property.

Defences available to the defendant in a suit filed by the owner

 Jus tertii– that the defendant has a better title than the plaintiff
 That the plaintiff’s title over the immovable property comes to an end as the
defendant has held or enjoyed the interest in the immovable property for
twelve years or more.
 The defendant can also plead under S.5 of the Specific Relief Act, 1963 that
the plaintiff was not in possession within six months of the date of filing the
suit or he himself was dispossessed in due course of law.

Wrongs to Natural Rights and Easements

An easement right is a non-possessory right to use the property of others without
having the possession of such property. When any such right is infringed or
interfered by any stranger or owner of that property then that amounts to tort and is
actionable.

Remedies available for infringing the right of easement

1. Damages to compensate for the injury or the loss

2. The injunction obtained from the court to prevent such repetition.
There are certain natural rights which are attached to every land and are necessary for
the peaceful enjoyment of the immovable property. One can enjoy his property in any
way he wants but cannot infringe the legal rights of the other by making such use of
his property. Such natural rights are:-

1. Right to support
2. Right to water
3. Right to light
4. Right to air
5. Right of way
6. Right of privacy
7. Right of prospect
 8. Right of common
9. Profits-a-Prendre

Right to support

This right can be divided into three categories:

 Right to support land by land – each and every part of the land has a natural
right to be supported by the adjacent or subjacent land. A right to be
supported by an adjacent land is known as the right to lateral support and a
right of support by the subjacent land is known as the vertical support.
Every owner of a property is entitled to a right of lateral support to the
extent it is necessary to sustain his own land in a natural land.
 Right to support of buildings by land- if the land is not expressly granted for
building purposes but is weighted with buildings then the surface owner has
no right to additional support which is necessary for the maintenance of
buildings. Support of buildings by land may be either:

1. Laterally by adjacent soil

2. Vertically by subjacent soil

 Right to support buildings by buildings– this right is not a natural right but
can be acquired by either grant or prescription or when both the buildings
are owned by one person. Damage is necessary to give the right of action to
the person.

Right to water

The right to water of a person having possession of the immovable property can be
infringed by any of the following ways-

1. Wrongful obstruction of water

2. Wrongful pollution of water
3. Wrongful obstruction by a stream

Right to light
An owner of a house is entitled to sufficient light as may be necessary for the
enjoyment of his house. In order to bring an action against a person, it must be
proved that he has caused substantial deprivation of light to the house of the plaintiff.
The rule of 45 degrees is usually applied here by the courts. According to this rule
when the height of the wall of obstruction which is built opposite to the ancient lights
(house of the plaintiff) is not greater than the distance between it and the ancient
lights then in the eyes of law no such right is infringed.

Right to air

The right to air is an easement and in order to file a suit against the defendant for
obstruction of air, the plaintiff must show that there is some danger to his health.
Such right is not violated until the obstruction is such that it is obstructing more air
than needed for the ordinary purpose.

Right of way

A right of way is not a natural right but it can be acquired by-

1. Grant
2. Prescription
3. Immemorial custom
4. Necessity.

Right of privacy

Right to privacy is not an inherent right as right to light and right to air. English law
does not even recognize such right but in India, under Article 21 of the Constitution
of India, Right to privacy is recognized as the fundamental right of each and every
citizen of India.

Right of prospect

In India, the law does not recognize a view or prospect from a house as an easement
right. No period of enjoyment over an immovable property will give a person right of
action against another who on his land erects a structure or plants trees which
obstruct the view or prospect of the other. Where obstruction does not affect the right
of access or any other damage to his building or business; it was held that the suit
was not maintainable (Gopalkrishna v. Narsimham, 1958).

Right of common

A right of taking some natural part of the produce of land belonging to another by the
person who is not the owner of that land such as right to pasture or right to fish. Any
infringement or disturbance of such right is an actionable wrong.

Profits-a-Prendre

The right to take some part of the soil or some part of the natural produce or animals
existing upon it from the servient tenement by another is referred to as the Profits-a-
Pendre. In India, such right is categorized into the following categories-

1. Right of common
2. Right of ferry
3. Right of market

Nuisance
Nuisance is broadly categorized into two categories:-

1. Public Nuisance– it is an act or omission which causes any common injury,

danger or annoyance to the public or to the people in general who dwell or
occupy the property. To make nuisance an actionable tort one must satisfy
the following two essentials-

 Wrongful act
 Damage or loss or inconvenience or annoyance caused by such act to
another.

2. Private Nuisance– it is unauthorized use of one’s own property causing

damage to the property of another or some unauthorized interference with
the property or the propriety rights of another.

Remedies available to the plaintiff

  Abatement- it means the removal of a nuisance by the party injured or the
plaintiff. The removal must be peaceful and without danger to the limb and
if it is necessary to enter another’s land or property prior notice should be
given to that person.
 Damages– it is to be noticed that every day the nuisance continues, a fresh
cause of action arises for which future damages may be recovered. If the
injury is caused to the neighbour while a person is making use of his
property is such way then he is eligible to damages from that person for the
injury caused.
 Injunction– in order to obtain an injunction from a court it must be shown
by the person that the injury caused cannot be measured in terms of
damages or cannot be compensated through damages.

Defences available to an action for nuisance

 Grant- it is a valid defence to an action for the nuisance that the said
nuisance is under the terms of the grant.
 Prescription– the right to continue private nuisance may be acquired as an
easement of prescription if it has been peacefully and openly enjoyed as an
easement or as a right without interruption for 20 years.
 Statutory Authority– when the statute has authorized doing a particular act
or the use of land in a reasonable way provided that reasonable precaution
has been taken in exercising such statutory authority.

Conclusion
Torts relating to the immovable property has been categorized into different
categories and all of them are dealt in different ways. Some of them are interrelated
to each other and therefore they are needed to be read together with such as trespass
and nuisance. Each of the tort mentioned above has defences and therefore the
defendant can avoid the suit if he falls under those defences. Though the remedies
and defences given under every tort are given considering that no party is prejudiced
by the act of another.

Q. Torts of Malicious abuse of legal Process:

Proceedings instituted maliciously may include not only malicious prosecution and
malicious arrest but also malicious bankruptcy and liquidation proceeding (civil
proceedings), malicious execution of process against property, and malicious search.
[1] Malicious prosecution is the malicious intention of unsuccessful criminal or
bankruptcy or liquidation proceedings against another without reasonable or probable
cause.[2] Generally, it can be said that the malicious prosecution is defined as a
judicial proceeding instituted by one person against another, from wrongful or
improper motive, without any reasonable and probable cause to justify it.

In the case of West Bengal State Electricity Board v. Dilip Kumar Ray,[4]the Court
defined the term “malicious prosecution” in the following words:-

“A judicial proceeding instituted by one person against another, from wrongful or

improper motive and without probable cause to sustain it is a malicious prosecution.”

The Court in the same case laid down the distinction between “an action for
malicious prosecution” and “an action for abuse of process” in the following words:-

“A malicious prosecution consists in maliciously causing process to be issued,

whereas an abuse of process is the employment of legal process for some purpose
other than that which it was intended by the law to affect the improper use of a
regularly issued process.”

ESSENTIAL ELEMENTS OF MALICIOUS PROSECUTION

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

 Prosecution by the defendant.

 Absence of reasonable and probable cause.
 Defendant acted maliciously.
 Termination of proceedings in the favour of the plaintiff.
 Plaintiff suffered damage as a result of the prosecution.

1. Prosecution by the defendant

The first essential element which the plaintiff is required to prove in a suit for
damages for malicious prosecution is that he (plaintiff) was prosecuted by the
defendant.[5] The word “prosecution” carries a wider sense than a trial and includes
criminal proceedings by way of appeal, or revision.[6] In the case of Musa Yakum v.
Manilal,[7] it was held that it is no excuse for the defendant that he instituted the
prosecution under the order of a Court, if the Court was moved by the defendant’s
false evidence to give the order.

In the case of Khagendra Nath v. Jacob Chandra,[8]the Court held that merely
bringing the matter before the executive authority did not amount to prosecution and,
therefore, the action for malicious prosecution could not be maintained.

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

called prosecution.[9]

2. Absence of reasonable and probable cause

In a suit for damages for malicious prosecution, the plaintiff has also required to
prove that the defendant prosecuted him without reasonable and probable cause. The
question relating to want of reasonable and probable cause in a suit for malicious
prosecution should be decided on all facts before the Court.[10] In the case
of Antarajami Sharma v. Padma Bewa,[11]it has been said that law is settled that in a
case of damages for malicious prosecution, onus of proof of absence of reasonable
and probable clause rests on the plaintiff.

The existence of reasonable and probable cause is of no avail if the prosecutor

prosecuted in ignorance of it. The dismissal of a prosecution or acquittal of the
accused does not create any presumption of the absence of reasonable and probable
cause. If a man prefers an indictment containing several charges, whereof for some
there is, and for others there is not, probable cause, his liability for malicious
prosecution is complete.[12]

3. Defendant acted maliciously:-

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

In the case of Bank of India v. Lekshmi Das,[13] the Court reiterated the Indian
position that in malice absence of a probable and reasonable cause must be proved.
The proceedings complained of by the plaintiff must be initiated in a malicious spirit
that is from an indirect and improper motive and not in furtherance of justice.
[14] Malice may be inferred upon proof of absence of honest belief in the accusation
and consequent want of reasonable and probable cause for instituting the prosecution
complained of.[15]

It is not necessary that the defendant should be acting maliciously right from the
moment the prosecution was launched. If the prosecutor is innocent in the beginning
but becomes malicious subsequently, an action for malicious prosecution can lie. If
during the pendency of criminal prosecution, the defendant gets positive knowledge
of the innocence of the accused, from that moment onwards the continuance of the
prosecution is malicious.[16]

4. Termination of proceedings in the favour of the plaintiff:-

In a suit for damages for malicious prosecution, it is essential to show that the
proceedings complained of terminated in favour of the plaintiff. Termination in
favour of the plaintiff does not mean judicial determination of his innocence; it
means absence of judicial determination of his guilt.[17] Malice need not be a feeling
of enmity, spite or ill will or spirit of vengeance but it can be any improper purpose
which motivates the prosecutor, such as to gain a private collateral advantage.

No action can be brought when the prosecution or the proceedings are still pending.
It is a rule of law that no one shall be allowed to allege of a still pending suit that it is
unjust. [18]

5. Plaintiff suffered damage as a result of the prosecution:-

In a suit for damages for malicious prosecution, it is another essential element which
the plaintiff is required to prove that The plaintiff suffered damage as a result of the
prosecution. In a claim for prosecution, the plaintiff can thus claim damages on the
following three counts[19]:-

 Damage to the plaintiff’s reputation,

 Damage to the plaintiff’s person,
 Damage to the plaintiff’s property.

MALICIOUS CIVIL PROCEEDINGS

In the case of Darbhangi Thakur v. Mahabir Prasad,[20] it was held that unlike
malicious criminal prosecution, no action can be brought, as a general rule, in the
case of civil proceedings even though the same are malicious and have been brought
without any reasonable cause.

In the case of Genu Ganapati v. Bhalchand Jivraj,[21] it was held that following are
the essentials to establish malicious abuse of civil proceedings:-

 Malice must be proved.

 The plaintiff must allege and prove that the defendant acted without
reasonable and probable clause and the entire proceedings against him have
either terminated in his favour or the process complained of has been
superseded or discharged.
 The plaintiff must also prove that such civil proceedings have interfered
with his liberty or property or that such civil proceedings have affected or
likely to affect his reputation.

CONCLUSION:

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

Q. Tort distinguished from Crime and Breach of Contract?

INTRODUCTION:

Man lives in the society for their own interests. Some specific interests are protected
by the society or government and these interests are called rights. On the other hand,
violation of these rights amounts to wrong. Wrongs can be broadly categorised into
civil wrongs and crimes. Crime affects the entire society while civil wrong affects an
individual only. Moreover, the gravity or degree of offence depends upon the nature
of the offence. There are several types of civil wrongs which are particularly
distinguished like breach of contract, breach of trust, breach of equitable obligations
etc. A tort is a civil wrong which does not fall in the ambit of these specific civil
wrongs. The remedy for tort is compensation in the form of unliquidated damages
whereas in breach of contract, compensation is in the form of liquidated damages. In
the case of crime, punishment is given to the wrongdoer.

Quasi-contracts are those where no express contracts are made, but liabilities arise
due to obligations imposed by law, the breach of which entails compensation usually
in the form of liquidated damages.

TORT AND CRIME

Though both terms denote any wrongdoing of a person and can be confusing at
times, tort and crime are two different concepts in legal terminology.

A tort is a civil wrong where there is a violation or infringement of the legal rights of
an individual or group of individuals. It is a private wrong that forms a ground for
lawsuits to compensate an aggrieved party for any damage or injuries suffered. The
law of torts in India has developed and evolved from the law of torts in the English
common law. It is not a codified law and is not supported by any statute. It has been
mainly derived from judicial precedents in the United Kingdom. Tort law focuses on
interpersonal wrongdoings between private persons. A tort is an action or omission or
conduct of a person that causes injury or harm to another and amounts to a civil
wrong for which Courts can impose liability.

On the other hand, a crime is an unlawful act committed by an individual against

society in general, which causes harm or disturbs public order. A crime is considered
an offence against the State and prosecuted by the government. Though the concept
and idea of crime, and what exactly constitutes it, is different in the laws of different
countries, it is widely considered a public wrong that entails penal punishment. It
aims to protect the rights and safety of the individuals in society, deter future
criminal behaviour, bring forth a sense of justice towards the victims and their close
ones, and also rehabilitate offenders back into society through appropriate measures.

The main differences between a tort and a crime are:

Tort Crime
It is a civil wrong which
It is a public wrong which gives rise to
gives rise to civil
criminal proceedings
proceedings

The main remedy in the case

2. The main remedy in the case of crime is
of torts is compensation in
the punishment of the wrongdoers imposed
the form of unliquidated
by the State
damages to the victims

Tort cases do not require a 3. Criminal cases require a criminal intent or

motive or criminal intent guilty mind (mens rea)

Tort law is uncodified 4. Criminal law is codified

Seeks to compensate victims

5. Seeks to provide justice to the victim by
for injuries suffered by
punishing the offenders and deterring future
culpable action or inaction
criminal activities and behaviour
of others

It is the infringement of the 6. It is a violation of the law embodied in

legal rights of individuals the statutes

The case is dependent upon

7. The case has to be proved beyond
the preponderance of
reasonable doubt by the prosecution
probabilities

The burden of proof is upon 8. The burden of proof is upon the

the claimant prosecution

Since tort is considered a

9. Since crime is a public wrong, criminal
private wrong, the injured
proceedings are brought against the
party himself can bring a
wrongdoer by the State
suit against the wrongdoer

Tort cases can be settled by 10. Criminal cases cannot be settled the
the wrongdoer and wrongdoer and the victim between
aggrieved party between themselves, barring certain exceptions given
themselves under Section 320 CrPC 1973 (compoundable
 offence)

However, in some cases, the same set of facts can constitute both a tort and a
crime. In such cases, remedies are not alternative but concurrent. Examples of
some wrongs which are both tort and crime are defamation, assault, negligence,
nuisance etc. The wrongdoer may be required to pay compensation under the law
of torts, and also be held liable under criminal law. For instance, if A digs a ditch
in the middle of a public road, causing inconvenience to the public at large, A has
committed the crime of public nuisance under Section 268 of IPC. If X, a passerby
falls into the ditch and gets injured, A’s act will be a private nuisance towards X.
Not only will A be punished under criminal law for the offence of public nuisance,
but he will also be liable to compensate X under the law of torts.

TORT AND CONTRACT

Though the remedy for both tort and breach of contract is compensation
for damages, tort and contract are fundamentally different concepts.

A tort is a civil wrong and is associated with an act or omission or conduct

which is in contravention of the legal duties imposed by the law, which
harms or violates the legal rights of another person. In the case of a tort,
the parties do not agree to fulfil or abide by any obligations, they are
bound by law to fulfil certain duties towards other people. The remedy for
a tort is compensation to the victim in the form of unliquidated damages.

On the other hand, a contract is an agreement between parties to perform

mutual obligations. The essentials of a contract include free consent and an
intention to create a legal relationship between the parties. Duties are not
imposed upon the parties by law, but they are bound by contractual
obligations. In case of breach of contract, the party that suffers from the
violation of such breach is entitled to compensation in the form of
liquidated damages.

The main differences between a tort and a contract are:

Tort Contract
 A tort is a civil wrong which is associated 1. A contract is an agreement
with an act or omission or conduct which between parties to fulfil certain
causes harm to another mutual obligations

It is a breach of legal duty imposed by the 2. Legal duty is imposed upon the
law parties by the provisions of contract

In tort, there is no intention of the victim 3. Intention to create a legal

and wrongdoer to create any legal relationship is an essential of a
relationship contract

4. Law of contracts and provisions

Law of torts is uncodified relating to breach of contracts are
codified.

5. A breach of contract is a violation

A tort is a violation of a right in rem i.e., a
of a right in personam i.e., a right
right vested in some particular individual
available against some particular
and available against the public at large.
person or party.

The remedy for torts is compensation in 6. The remedy for breach of

the form of unliquidated damages, i.e., contracts is in the form of liquidated
damages not pre-determined and assessed damages, i.e., damages already pre-
by the Courts depending on the degree of determined by the parties in the
harm caused to the aggrieved party contract

7. Compensation can be claimed in

Actual harm has to be caused for claiming
the case of breach of contract, even if
compensation
no actual damage has occurred

8.In a contract, the duty is based on

In a tort, duties imposed are not towards
the privity of contract and each party
any specific individual but they are
owes a duty only towards the other
towards the world at large
contracting party

However, there are certain cases where the same set of facts can constitute
both a tort and a breach of contract. For example, if A delivers a horse to B
for safekeeping, and B allows the horse to die of starvation, B commits
both breaches of the contract of bailment and the tort of negligence. Since
both are civil wrongs and the damages is the main remedy for any civil
wrong, the plaintiff can claim damages either under the law of torts for
negligence or for the breach of contract of bailment. He cannot claim
damages twice.

TORT AND QUASI-CONTRACT

Though in the case of both tort and quasi-contract, the duty is imposed by
law, there are certain differences between the two.

In the case of tort, liability arises out of a breach of legal duty towards any
person in general. It is a wrongful act or omission which causes harm to
another. The remedy available to the aggrieved party is mainly in the form
of unliquidated damages, or injunctions and specific performance.

When a person gains some advantage or gain to which some other

individual was entitled to, or by such advantage, another person suffers an
undue loss, the law may compel the former to compensate the latter in
respect of the advantage so gained.[1] This type of obligation which arises
between two or more specific parties in the absence of any real contract, is
called quasi-contract. The remedy available to the aggrieved party is only
in the form of a pre-determined amount of money.

The differences between tort and quasi-contract are:

Tort Quasi-contract

The law of torts, apart from a right to 1.Under the law of quasi-contract, a
damages, grants other remedies too. right only with respect to money is
Moreover, a claim for damages under the given, and generally, it is a
law of torts is always unliquidated liquidated sum of money

2.Under quasi-contracts, duty is

Under the law of torts, duty is towards the
towards a specific individual or
public in general
individuals

The amount for damages is not fixed 3.The amount of damages is fixed
CONCLUSION
The minute differences between the different terms are what set them
apart. Tort and crime are different mainly because tort is civil in nature
and does not necessarily penalise the wrongdoer with punishment, it aims
to make good the loss suffered by the victim through compensation. Tort
and contract are different mainly because in case of breach of contract,
compensation is in the form of liquidated damages as opposed to torts,
and a defaulting party to a contract can be held liable only by the other
party to the contract, and not by anyone else. Tort and quasi-contract are
different because, under quasi-contracts, the duty of a person is towards a
specific person and remedy is in the form of a liquidated sum of money.

Q. General defences under law of torts

Introduction
Whenever a case is brought against the defendant for the commission of a tort
and all the essential elements of that wrong are present, the defendant would be
held liable for the same. Even in such cases, the defendant can avoid his liability
by taking the plea of the defences available under the law of torts.

Some defences are particularly relating to some offences. In the case of

defamation, the defences available are fair comment, privileges and justification,
etc.

Meaning of General Defences

When a plaintiff brings an action against the defendant for a tort committed by
him, he will be held liable for it, if there exist all the essential ingredients which
are required for that wrong. But there are some defences available to him using
which he can absolve himself from the liability arising out of the wrong
committed. These are known as ‘General defences’ in the law of tort.

The defences available are given as follows:

 Volenti non fit injuria or the defense of ‘Consent’

 The wrongdoer is the plaintiff

 Inevitable accident
  Act of god
 Private defense
 Mistake
 Necessity
 Statutory authority

Volenti non fit injuria

In case, a plaintiff voluntarily suffers some harm, he has no remedy for that under
the law of tort and he is not allowed to complain about the same. The reason
behind this defence is that no one can enforce a right that he has voluntarily
abandoned or waived. Consent to suffer harm can be express or implied.

Some examples of the defence are:

 When you yourself call somebody to your house you cannot sue your
guests for trespass;
 If you have agreed to a surgical operation then you cannot sue the
surgeon for it; and
 If you agree to the publication of something you were aware of, then you
cannot sue him for defamation.
 A player in the games is deemed to be ready to suffer any harm in the
course of the game.
 A spectator in the game of cricket will not be allowed to claim
compensation for any damages suffered.
For the defence to be available the act should not go beyond the limit of what has
been consented.

In Hallv. Brooklands Auto Racing Club[1], the plaintiff was a spectator of a car
racing event and the track on which the race was going on belonged to the
defendant. During the race, two cars collided and out of which one was thrown
among the people who were watching the race. The plaintiff was injured. The
court held that the plaintiff knowingly undertook the risk of watching the race. It
is a type of injury which could be foreseen by anyone watching the event. The
defendant was not liable in this case.

In Padmavati v. Dugganaika[2], the driver of the jeep took the jeep to fill petrol in
it. Two strangers took a lift in the jeep. The jeep got toppled due to some problem
in the right wheel. The two strangers who took lift were thrown out of the jeep
and they suffered some injuries leading to the death of one person.
The conclusions which came out of this case are:

 The master of the driver could not be made liable as it was a case of a
sheer accident and the strangers had voluntarily got into the vehicle.
 The principle of Volenti non fit injuria was not applicable here.
In Wooldrige v. Sumner[3], a plaintiff was taking some pictures standing at the
boundary of the arena. The defendant’s horse galloped at the plaintiff due to
which he got frightened and fell into the horse’s course and was seriously injured.
The defendants were not liable in this case since they had taken due care and
precautions.

In the case of Thomas v. Quartermaine[4], the plaintiff was an employee in the

defendant’s brewery. He was trying to remove a lid from a boiling tank of water.
The lid was struck so the plaintiff had to apply an extra pull for removing that lid.
The force generated through the extra pull threw him in another container which
contained scalding liquid and he suffered some serious injuries due to the
incident. The defendant was not liable as the danger was visible to him and the
plaintiff voluntarily did something which caused him injuries.

In Illot v. Wilkes[5], a trespasser got injured due to spring guns present on the
defendant’s land. He knowingly undertook the risk and then suffered injuries for
the same. This was not actionable and the defendant was not liable in the case.

Similarly, if you have a fierce dog at your home or you have broken pieces of
glass at the boundaries, all this is not actionable and is not covered under this
defence.

The consent must be free

 For this defence to be available it is important to show that the consent
of the plaintiff was freely given.
 If the consent was obtained under any compulsion or by fraud, then it is
not a good defence.
 The consent must be given for an act done by the defendant.
 For example, if you invite someone to your house for dinner and he
enters your bedroom without permission then he will be liable for
trespass.
In the case of Lakshmi Rajan v. Malar Hospital[6], a 40 year old married woman
noticed a lump in her breast but this pain does not affect her uterus. After the
operation, she saw that her uterus has been removed without any justification.
The hospital authorities were liable for this act. The patient’s consent was taken
for the operation not for removing the uterus.
  If a person is not in a condition to give consent then his/her guardian’s
consent is sufficient.

Consent obtained by fraud

 Consent obtained by fraud is not real consent and does not serve as a
good defence.
In Hegarty v. Shine[7], it was held that mere concealment of facts is not
considered to be a fraud so as to vitiate consent. Here, the plaintiff’s paramour
had infected her with some venereal disease and she brought an action for assault
against him. The action failed on the grounds that mere disclosure of facts does
not amount to fraud based on the principle ex turpi causa non oritur actio i.e.
no action arises from an immoral cause.

 In some of the criminal cases, mere submission does not imply consent if
the same has been taken by fraud which induced mistake in the victim’s
mind so as to the real nature of the act.
 If the mistake induced by fraud does not make any false impression
regarding the real nature of the act then it cannot be considered as an
element vitiating consent.
In R. v. Wiliams[8], a music teacher was held guilty of raping a 16 years old girl
under the pretence that the same was done to improve her throat and enhancing
her voice. Here, the girl misunderstood the very nature of the act done with her
and she consented to the act considering it a surgical operation to improve her
voice.

In R. v. Clarence[9], the husband was not liable for an offence when intercourse
with her wife infected her with a venereal disease. The husband, in this case,
failed to inform her wife about the same. Here, the wife was fully aware of the
nature of that particular act and it is just the consequences she was unaware of.

Consent obtained under compulsion

 There is no consent when someone consents to an act without free will or
under some compulsion.
 It is also applicable in the cases where the person giving consent does
not have full freedom to decide.
 This situation generally arises in a master-servant relationship where the
servant is compelled to do everything that his master asks him to do.
 Thus, there is no applicability of this maxim volenti non fit injuria, when
a servant is compelled to do some work without his own will.
 But, if he himself does something without any compulsion then he can be
met with this defence of consent.
Mere knowledge does not imply assent
For the applicability of this maxim, the following essentials need to be present:

 The plaintiff knew about the presence of risk.

 He had knowledge about the same and knowingly agreed to suffer harm.
In the case of Bowater v. Rowley Regis Corporation[10], a cart-driver was asked
to drive a horse which to the knowledge of both was liable to bolt. The driver was
not ready to take that horse out but he did it just because his master asked to do
so. The horse, then bolted and the plaintiff suffered injuries. Here, the plaintiff
was entitled to recover.

In Smith v. Baker[11], the plaintiff was an employer to work on a drill for the
purpose of cutting rocks. Some stones were being conveyed from one side to
another using crane surpassing his head. He was busy at work and suddenly a
stone fell on his head causing injuries. The defendants were negligent as they did
not inform him. The court held that mere knowledge of risk does not mean that he
has consented to risk, so, the defendants were liable for this. The maxim volenti
non fit injuria did not apply.

But, if a workman ignores the instructions of his employer thereby suffering

injury, in such cases this maxim applies.

In Dann v. Hamilton[12], a lady even after knowing that the driver was drunk
chose to travel in the car instead of any other vehicle. Due to the negligent driving
of the driver, an accident happened which resulted in the death of the driver and
injuries to the passenger herself. The lady passenger brought an action for the
injuries against the representatives of the driver who pleaded the defence of
volenti non fit injuria but the claim was rejected and the lady passenger was
entitled to get compensation. This maxim was not considered in this case because
the driver’s intoxication level was not that high to make it obvious that taking a
lift could be considered as consenting to an obvious danger.

This decision was criticized on various grounds as the court did not consider
contributory negligence while deciding the case but the court’s reason for not
doing so is that it was not pleaded that is why it was not considered.

A driver’s past negligent activities do not deprive him of this remedy if someone
travels with the same driver again.

Negligence of the defendant

In order to avail this defence it is necessary that the defendant should not be
negligent. If the plaintiff consents to some risk then it is presumed that the
defendant will not be liable.
For example, when someone consents to a surgical operation and the same
becomes unsuccessful then the plaintiff has no right to file a suit but if the same
becomes unsuccessful due to the surgeon’s negligence then in such cases he will
be entitled to claim compensation.

In Slater v. Clay Cross Co. Ltd.[13], the plaintiff suffered injuries due to the
negligent behaviour of the defendant’s servant while she was walking along a
tunnel which was owned by the defendants. The company knew that the tunnel is
used by the public and had instructed its drivers to give horns and drive slowly
whenever they enter a tunnel. But the driver failed to do so. It was held that the
defendants are liable for the accident.

Limitations on the doctrine’s scope

The scope of the maxim volenti non fit injuria has been curtailed in the following
cases:


o Rescue cases

 The Unfair Contract Terms Act, 1977

In these cases, even if the plaintiff has done something voluntarily but he cannot
be met with the defence of ‘consent’ i.e. volenti non fit injuria.

Rescue cases
 When the plaintiff voluntarily comes to rescue someone from a danger
created by the defendant then in such cases the defence of volenti non fit
injuria will not be available to the defendant.
In Haynes v. Harwood[14], the defendants’ servant left two unattended horses in
a public street. A boy threw a stone on the horses due to which they bolted and
created danger for a woman and other people on the road. So, a constable came
forward to protect them and suffered injuries while doing so. This being a rescue
case so the defence of volenti non fit injuria was not available and the defendants
were held liable.

However, if a person voluntarily attempts to stop a horse which creates no danger

then he will not get any remedy.

In the case of Wagner v. International Railway[15], a railway passenger was

thrown out of a moving train due to the negligence of the defendants. One of his
friends got down, after the train stopped, to look for his friend but then he missed
the footing as there was complete darkness and fell down from a bridge and
suffered from some severe injuries. The railway company was liable as it was a
rescue case.
In Baker v. T.E. Hopkins & Son[16], due to the employer’s negligence, a well of a
petrol pump was filled with poisonous fumes. Dr. Baker was called to help but he
was restricted from entering the well as it was risky. He still went inside to save
two workmen who were already stuck in the well. The doctor himself was
overcome by the fumes and then he was taken to the hospital where he was
declared dead. When a suit was filed against the defendants, they pleaded the
defence of consent. The court held that in this case the defence cannot be pleaded
and the defendants, thus, were held liable.

 If A creates danger for B and he knows that a person C is likely to come

to rescue B. then, A will be liable to both B and C. Each one of them can
bring an action for the same, independently.
 If someone knowingly creates danger for himself and he knows that he
will likely be rescued by someone, then he is liable to the rescuer.
In Hyett v. Great Western Railway Co.[17], the plaintiff got injured while saving
the defendant’s cars from a fire which occurred due to negligence on the part of
the defendants. The plaintiff’s acts seemed to be reasonable and the defendant
was held liable in this case.

Unfair Contract Terms Act, 1977 (England)

The Unfair Contract Terms Act, 1977, limits the right of a person to exclude his
liability resulting from his negligence in a contract.

Negligence Liability

 Sub-section 1 puts an absolute ban on a person’s right to exclude his

liability for death or personal injury resulting from the negligence by
making a contract or giving a notice.
 Sub-section 2 is for the cases in which the damage caused to the plaintiff
is other than personal injury or death. In such cases, the liability can only
be avoided if a contract term or notice satisfies the reasonability criteria.
 Sub-section 3 says that a mere notice or agreement may be enough for
proving that the defendant was not liable but in addition to that some
proofs regarding the genuineness of the voluntary assumption and
plaintiff’s consent should also be given.

Volenti non fit injuria and Contributory negligence

 Volenti non fit injuria is a complete defence but the defence of
contributory negligence came after the passing of the Law Reform
(Contributory Negligence) Act, 1945. In contributory negligence, the
defendant’s liability is based on the proportion of fault in the matter.
  In the defence of contributory negligence, both are liable – the defendant
and the plaintiff, which is not the case with volenti non fit injuria.
 In volenti non fit injuria, the plaintiff knows the nature and extent of
danger which he encounters and in case of contributory negligence on
the part of the plaintiff, he did not know about any danger.

Plaintiff the wrongdoer

There is a maxim “Ex turpi causa non oritur actio” which says that “from an
immoral cause, no action arises”.

If the basis of the action by the plaintiff is an unlawful contract then he will not
succeed in his actions and he cannot recover damages.

If a defendant asserts that the claimant himself is the wrongdoer and is not
entitled to the damages, then it does not mean that the court will declare him free
from the liability but he will not be liable under this head.

In the case of Bird v. Holbrook[18], the plaintiff was entitled to recover damages
suffered by him due to the spring-guns set by him in his garden without any
notice for the same.

In Pitts v. Hunt[19], there was a rider who was 18 years of age. He encouraged
his friend who was 16 years old to drive fast under drunken conditions. But their
motorcycle met with an accident, the driver died on the spot. The pillion rider
suffered serious injuries and filed a suit for claiming compensation from the
relatives of the deceased person. This plea was rejected as he himself was the
wrongdoer in this case.

Inevitable accident
Accident means an unexpected injury and if the same accident could not have
been stopped or avoided in spite of taking all due care and precautions on the part
of the defendant, then we call it an inevitable accident. It serves as a good
defence as the defendant could show that the injury could not be stopped even
after taking all the precautions and there was no intent to harm the plaintiff.

In Stanley v. Powell[20], the defendant and the plaintiff went to a pheasant

shooting. The defendant fired at a pheasant but the bullet after getting reflected
by an oak tree hit the plaintiff and he suffered serious injuries. The incident was
considered an inevitable accident and the defendant was not liable in this case.
In Assam State Coop., etc. Federation Ltd. v. Smt. Anubha Sinha[21], the
premises which belonged to the plaintiff were let out to the defendant. The tenant
i.e. the defendant requested the landlord to repair the electric wirings of the
portion which were defective, but the landlord did not take it seriously and failed
to do so. Due to a short circuit, an accidental fire spread in the house. No
negligence was there from the tenant’s side. In an action by the landlord to claim
compensation for the same, it was held that this was the case of an inevitable
accident and the tenant is not liable.

In Shridhar Tiwari v. U.P. State Road Transport Corporation[22], a bus of

U.P.S.R.T.C. reached near a village where a cyclist suddenly came in front of the
bus and it had rained heavily so even after applying breaks the driver could not
stop the bus as a result of this the rear portion of the bus hit another bus which
was coming from the opposite side. It was known that there was no negligence on
the part of both the drivers and they tried their best in avoiding the accident. This
was held to be a case of inevitable accident. The defendant i.e. U.P.S.R.T.C. was
held not liable for this act.

In the case of Holmes v. Mather[23], the defendant’s horse was being driven by
his servant. Due to the barking of dogs, the horse became unmanageable and
started to bolt. In spite of every effort of the driver, the horse knocked down the
plaintiff. This makes it a case of an inevitable accident and the defendants were
held not liable for the incident.

In Brown v. Kendall[24], the dogs of the plaintiff and the defendant were fighting
with each other. The defendant tried to separate them and while doing so, he
accidentally hit the plaintiff in the eye causing him some serious injuries. The
incident was purely an inevitable accident for which no claim could lie. So, the
court held that the defendant is not liable for the injuries suffered by the plaintiff
as it was purely an accident.

In Padmavati v. Dugganaika[25], the driver of the jeep took the jeep to fill petrol
in it. Two strangers took a lift in the jeep. The jeep got toppled due to some
problem in the right wheel. The two strangers who took lift were thrown out of the
jeep and they suffered some injuries leading to the death of one person.

The conclusions which came out of this case are:

 The master of the driver could not be made liable as it was a case of a
sheer accident and the strangers had voluntarily got into the vehicle.
 The principle of volenti non fit injuria was not applicable here.
 It was a case of a sheer accident which no one could foresee.

In Nitro-Glycerine case[26], A firm of carriers i.e. the defendants, in this case,

was given a wooden case which was to carry from one place to another. The
contents of the box were unknown. There was some leakage in the box and the
defendants took the box to their office so that they can examine it. After taking
out the box, they saw that it was filled with Nitro-Glycerine and then it suddenly
exploded and the office building which belonged to the plaintiffs got damaged. The
defendants were held not liable for the same as the same could not be foreseen.

In the case of Oriental Fire & General Ins. Co. Ltd. v. Raj Rani[27], the front right
spring and other parts of a truck broke all of a sudden and the driver could not
control it and dashed into a tractor that was coming from the opposite direction.
The driver and the owner of that truck could not prove that they had taken all
reasonable precautions while driving the truck. The court held that this case
comes under negligence and has nothing to do with the inevitable accident and
the defendant was liable.

Act of God
Act of God serves as a good defence under the law of torts. It is also recognized
as a valid defence in the rule of ‘Strict Liability’ in the case of Rylands v.
Fletcher[28].

The defence of Act of God and Inevitable accident might look the same but they
are different. Act of God is a kind of inevitable accident in which the natural forces
play their role and causes damage. For example, heavy rainfall, storms, tides,
etc.

Essentials required for this defence are:

 Natural forces’ working should be there.

 There must be an extraordinary occurrence and not the one which could
be anticipated and guarded against reasonably.

Working of natural forces

In Ramalinga Nadar v. Narayan Reddiar[29], the unruly mob robbed all the goods
transported in the defendant’s lorry. It cannot be considered to be an Act of God
and the defendant, as a common carrier, will be compensated for all the loss
suffered by him.

In Nichols v. Marsland[30], the defendant created an artificial lake on his land by

collecting water from natural streams. Once there was an extraordinary rainfall,
heaviest in human memory. The embankments of the lake got destroyed and
washed away all the four bridges belonging to the plaintiff. The court held that the
defendants were not liable as the same was due to the Act of God.
Occurrence must be extraordinary
Some extraordinary occurrence of natural forces is required to plead the defence
under the law of torts.

In Kallu Lal v. Hemchand[31], the wall of a building collapsed due to normal

rainfall of about 2.66 inches. The incident resulted in the death of the
respondent’s children. The court held that the defence of Act of God cannot be
pleaded by the appellants in this case as that much rainfall was normal and
something extraordinary is required to plead this defence. The appellant was held
liable.

Private defence
The law has given permission to protect one’s life and property and for that, it has
allowed the use of reasonable force to protect himself and his property.

 The use of force is justified only for the purpose of self-defence.

 There should be an imminent threat to a person’s life or property.
For example, A would not be justified in using force against B just because he
believes that some day he will be attacked by B.

 The force used must be reasonable and to repel an imminent danger.

For example, if A tried to commit a robbery in the house of B and B just draw his
sword and chopped his head, then this act of A would not be justified and the
defence of private defence cannot be pleaded.

 For the protection of property also, the law has only allowed taking such
measures which are necessary to prevent the danger.
For example, fixing of broken glass pieces on a wall, keeping a fierce dog, etc. is
all justified in the eyes of law.

In Bird v. Holbrook[32], the defendant fixed up spring guns in his garden without
displaying any notice regarding the same and the plaintiff who was a trespasser
suffered injuries due to its automatic discharge. The court held that this act of the
defendant is not justified and the plaintiff is entitled to get compensation for the
injuries suffered by him.

Similarly, in Ramanuja Mudali v. M. Gangan[33], a landowner i.e. the defendant

had laid a network of live wires on his land. The plaintiff in order to reach his own
land tried to cross his land at 10 p.m. He received a shock and sustained some
serious injuries due to the live wire and there was no notice regarding it. The
defendant was held liable in this case and the use of live wires is not justified in
the case.
In Collins v. Renison[34], the plaintiff went up a ladder for nailing a board on a
wall in the defendant’s garden. The defendant threw him off the ladder and when
sued he said that he just gently pushed him off the ladder and nothing else. It
was held that the force used was not justifiable as the defence.

Mistake
The mistake is of two types:

 Mistake of law
 Mistake of fact
In both conditions, no defence is available to the defendant.

When a defendant acts under a mistaken belief in some situations then he may
use the defence of mistake to avoid his liability under the law of torts.

In Morrison v. Ritchie & Co[35], the defendant by mistake published a statement

that the plaintiff had given birth to twins in good faith. The reality of the matter
was that the plaintiff got married just two months before. The defendant was held
liable for the offence of defamation and the element of good faith is immaterial in
such cases.

In Consolidated Company v. Curtis[36], an auctioneer auctioned some goods of

his customer, believing that the goods belonged to him. But then the true owner
filed a suit against the auctioneer for the tort of conversion. The court held
auctioneer liable and mentioned that the mistake of fact is not a defence that can
be pleaded here.

Necessity
If an act is done to prevent greater harm, even though the act was done
intentionally, is not actionable and serves as a good defence.

It should be distinguished with private defence and an inevitable accident.

The following points should be considered:

 In necessity, the infliction of harm is upon an innocent whereas in case of

private defence the plaintiff is himself a wrongdoer.
 In necessity, the harm is done intentionally whereas in case of an
inevitable accident the harm is caused in spite of making all the efforts to
avoid it.
For example, performing an operation of an unconscious patient just to save his
life is justified.

In Leigh v. Gladstone[37], it was held that the forcible feeding of a person who
was hunger-striking in a prison served as a good defence for the tort of battery.

In Cope v. Sharpe[38], the defendant entered the plaintiff’s premises to stop the
spread of fire in the adjoining land where the defendant’s master had the shooting
rights. Since the defendant’s act was to prevent greater harm so he was held not
liable for trespass.

In the case of Carter v. Thomas[39], the defendant who entered the plaintiff’s
land premises in good faith to extinguish the fire, at which the fire extinguishing
workmen were already working, was held guilty of the offence of trespass.

In Kirk v. Gregory[40], A’s sister-in-law hid some jewellery after the death of A
from the room where he was lying dead, thinking that to be a more safe place.
The jewellery got stolen from there and a case was filed against A’s sister-in-law
for trespass to the jewellery. She was held liable for trespass as the step she took
was unreasonable.

Statutory authority
If an act is authorized by any act or statute, then it is not actionable even if it
would constitute a tort otherwise. It is a complete defence and the injured party
has no remedy except for claiming compensation as may have been provided by
the statute.

Immunity under statutory authority is not given only for the harm which is
obvious but also for the harm which is incidental.

In Vaughan v. Taff Valde Rail Co.[41], sparks from an engine of the respondent’s
railway company were authorized to run the railway, set fire to the appellant’s
woods on the adjoining land. It was held that since they did not do anything which
was prohibited by the statute and took due care and precaution, they were not
liable.

In Hammer Smith Rail Co. v. Brand[42], the value of the property of the plaintiff
depreciated due to the loud noise and vibrations produced from the running trains
on the railway line which was constructed under a statutory provision. The court
held that nothing can be claimed for the damage suffered as it was done as per
the statutory provisions and if something is authorized by any statute or
legislature then it serves as a complete defence. The defendant was held not liable
in the case.
In Smith v. London and South Western Railway Co.[43], the servants of a railway
company negligently left the trimmings of hedges near the railway line. The
sparks from the engine set fire to those hedges and due to high winds, it got
spread to the plaintiff’s cottage which was not very far from the line. The court
held that the railway authority was negligent in leaving the grass hedges near the
railway line and the plaintiff was entitled to claim compensation for the loss
suffered.

Absolute and conditional authority

The authority given by a statute can be of two types:

 Absolute
 Conditional
In the case of Absolute authority, there is no liability if the nuisance or some other
harm necessarily results but when the authority is conditional it means that the
same is possible without nuisance or any other harm.

In the case of Metropolitan Asylum District v. Hil[44], the hospital authorities i.e.
the appellants were granted permission to set up a smallpox hospital. But the
hospital was created in a residential area which was not safe for the residents as
the disease can spread to that area. Considering it a nuisance an injunction was
issued against the hospital. The authority, in this case, was conditional.

Conclusion
This article is to emphasize the important role played by General Defences in
avoiding one’s liability in torts. While learning about tort it is necessary to learn
about General Defences in the law of Tort. General defences are a set of ‘excuses’
that you can undertake to escape liability. In order to escape liability in the case
where the plaintiff brings an action against the defendant for a particular tort
providing the existence of all the essentials of that tort, the defendant would be
liable for the same. It mentions all the defences which can be pleaded in cases
depending upon the circumstances and facts.

In order to plead a defence it is important to understand it first and then apply the
suitable defence accordingly.

Torts against person:

Meaning of Tort:
Essentials of Law of Tort
Act/Ommission and Breach of Duty
Legitimate Damage
Injuria Sine Damnum
Damnum Sine Injuria
Types of Torts:
Intentional
Battery
Assault
False Imprisonment
Tresspass: Tresspass of Land/ Tresspass to person
Tresspass to chattles
Defamation
Tort Based on Neglience, Elements of Neglience
Breach, Causation, Proximate Cause, Damages,
Defences: Violenti non fit injuria, Contributory negligence,
Ex- Turpi Causa
Statutory Torts
Nuisance
Strict Liability

Torts against Reputation:

which type of tort happens when you unfairly damage another company's reputation?
Defamation is a tort that involves making a false statement that harms a person's
reputation. It can be in the form of a spoken (slander) or written (libel) statement
communicated to a third party.

Every person has the right to protect and nurture his reputation. It is an
inherent right that one can exercise against the whole world. The tort of
defamation is responsible for protecting this right. It basically empowers a
person to seek compensation against somebody who defames him.
Courts often have to balance this right to reputation with the
fundamental right of speech and expression. Learn defamation cases
here.

ort of Defamation Cases

Defamation is nothing but the attack on a person’s reputation. It refers to
a malicious and deliberate attempt by somebody to harm a person’s
reputation. The most important requirement of defamation is that the
defamatory statement must be false. Even negative intention may be an
ingredient of defamation.

Depending on the manner in which one makes a false statement,

defamation may be either libel or slander. Libel basically means
defamation in a permanent or written form. For example, a written or
printed claim against a person is libel.

On the other hand, slander means a defamatory statement in a transient

form. For example, if a person says something defamatory against
somebody, he commits slander.

Another difference between libel and slander is the punishment they

attract. Under common law, libel is a criminal offence as well as a civil
wrong, while slander is just a civil wrong. However, that is not the case
in India. According to Indian law, both libel and slander can be criminal
offences as well as civil wrongs.
Remedy against Defamation
As we have seen above, defamation is an offence and even a civil wrong.
This means that a person suffering defamation can opt for both remedies.
He can file a criminal complaint under Section 499 IPC, which defines
defamation. Conviction under this provision attracts the punishment of
imprisonment unto 2 years or fine or both.

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

Defences against Defamation

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

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

The burden of proving the truthfulness of a statement always lies on the

defendant alone. Furthermore, he must prove the truthfulness in substance
and not summarily. If the statement is false, he cannot take the defence of
believing it to be true in his own mind.

2) Fair and bona fide comment

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

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

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

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

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

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

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

Q. What is Vicarious Liability?

Under the concept of vicarious liability, one person is held responsible for the
wrong committed by the other. The doctrine of vicarious liability is also known by
the name of joint liability. Vicarious liability can occur under both civil and criminal
law. Such a liability arises only when there is some legal relation between the two
parties, or the parties are somehow connected to each other.

Doctrine of Vicarious Liability:

Tort Law or Civil Law

There are some essential conditions which should be fulfilled to constitute
vicarious liability under torts or civil law.

Relation
There should be some relationship between the wrongdoer and the other party.
The relationship can be of principal-agent, master-servant, employer-employee,
etc. Under service also there are two categories-

 Contract of Service- Under this contract, one person is already under the
contract of the other, and the service is of particular nature. This is a kind
of general contract, and there is not many limitations on the controlling
power over the other, for instance, master-servant relationship.
 Contract for Service- This is a contract for a particular reason, and there
is a limitation on the controlling power over the acts of the other, for
instance, employer-employee relation.

Ratification
Under torts or civil law, a person may also be liable for the wrongful act or
omission of some other party in the following ways-

 If the person abets the wrongful act or omission committed by the other
person.
 If the former ratifies or authorizes the act of the other knowing that the
act committed or omission done was tortious in nature.
 As standing towards the party who committed a wrong in such a relation
that it entails responsibility for the acts or omission done by the other
person.
The concept of “in the course of employment” also comes into play when the
doctrine of vicarious liability is evoked. An act is deemed to be done in the course
of employment if the authority to give a wrongful act is given by the master to the
servant; or some legal act is done by the servant in an illegal way.

The judicial pronouncement of Short v J&W Ltd.[1] is the first case which gave the
conditions that were needed to be fulfilled in order to make the master vicariously
liable for the acts of the servant. The Court observed that the master should have
the power to select his servant. Further the master controlled the way his servant
worked, and the master also had the right to dismiss or suspend the services of
the servant. But in the Indian case of Dharangandhara Chemical Works v State of
Saurashtra,[2] it was held that sometimes these condition needed to be diluted
because it was not always possible to fulfill all the conditions simultaneously. But
the control of the master wouldn’t be diluted, and he’ll be liable for the acts of the
servant.

Reasons for Holding the Master Vicariously Liable

 Respondent superior- this principle follows the rule that let the
principal or master be responsible.
 Damages- for the purpose of giving the damages to the aggrieved party
and to stop the blame game between the servant and the master.
 Avoiding exploitation of the servant- master is also held liable for the
acts of the servant because many time the masters exploit their servants
by first directing the servants to do some tortious act and then firing
them to avoid responsibility.
 Qui facet alium facet perse– any act which is done by the servant in
the course of his employment is considered to be done by the master,
and in principle means that the master has done the act.

Criminal Law
Under criminal law also one person can become liable for the act of the other if he
is a party to the offense. For instance, a driver of a car which goes and robs a
bank will also be liable even though the driver did not get out of the car. The
principle which is followed in the criminal law is that a person may be held liable
as the principal offender, even though the actus reus was committed by some
other person. The person committing the act on the instruction of the other will
not be considered as innocent and will also be held liable. The law focuses on the
relationship between the two parties and attributes the act of the one to the
other. It should be noted that the concept of vicarious liability is a civil concept
and in the case of criminal law it is an exception rather than a rule.

Indian View
Although the doctrine of vicarious liability is generally applicable to civil law, in
some exceptional cases it is applicable in criminal cases also. Section 149 of the
IPC. Under Section 149 of the IPC if any member of an unlawful assembly
commits any offense in furtherance of a common objective, every member of that
unlawful assembly will be held liable for that offense.

Section 154[3] of the IPC relates to occupiers or owner of a land. If such

occupier or owner or any person who has some interest in the piece of land does
not inform the proper public authority about unlawful assembly on that land, or do
not take necessary steps taking place on the land, will also be held liable for such
activities. The liability has been fixed on the assumption that being the owner or
the occupier of the land; the person will be able to control the activities which is
happening on their property. Section 155[4] also makes a person vicariously
liable on the owner or occupier of the land for the omission of their agent or
manager if any activity takes place on the land and the agent or manager does
not prevent illegal activities happening on their property. Section 156[5] imposes
personal liability on the agent or the manager if some illegal activity takes place
on the particular property.

Section 268[6] and Section 269[7] deals with public nuisance and makes the
master personally liable if the servant is creating any public nuisance. Section
499[8] of the IPC also makes the master personally liable in case the servant
defames somebody (provided it falls under the definition of defamation given
under this section).

Liability of Corporations in Cases of Criminal Wrongs

The earlier view was that a corporation cannot commit a criminal wrong. But that
view has changed in the present scenario. A corporation has a separate legal
entity and is an artificial person. But it cannot work on their own. It works through
its agents. So whenever some act is committed by a company which is not legal,
its agents are punished and hence, the liability is necessarily vicarious. A
corporation cannot commit crimes like rape, murder, perjury, etc. But it has been
recognized that a company can commit activities which have criminal intent.

Liability of State for Acts of Employees

In England, the state cannot be held liable for the acts which have been
committed by its servant. The principle behind this is based on the doctrine of Rex
non-potestpeccare[9] which states that the King can do no wrong.

In India also, the same position existed till 1967 and the State couldn’t be sued
for the action of its servants. But in the judicial pronouncement of Superintendent
and Remembrance of Legal Affairs, West Bengal v Corp. of Calcutta,[10] it was
held by the Court that the principle that the State isn’t bound by any statute is not
the law of the land after the Constitution has come into force. Civil and criminal
statues now apply to citizens and state alike. In the case of Saheli v,
Commissioner of Police,[11] the Court was of the opinion that the concept of
sovereign immunity does not hold good with the evolution of law, and
Constitutional Regime and the State can also be made liable.

Licensee and his Liabilities

The licensee is responsible for the acts done by this employee I the course of the
employment. Even if the acts were done were opposite to the instructions given
by the licensee, he still would be held liable. In the case of Emperor v.
Magadevappa Hanmantappa,[12] this proposition of law was made clear. The
accused held a license under the Indian Explosive Act, 1884. The Act stated
that the manufacture of any explosives should be done away from a dwelling
place. It should be done in a building exclusively meant for the manufacturing
purpose. One day the servant took some material from the building to carry out
some manufacturing process. At that time, there was an explosion. The accused
was held liable for the same by the Court.

Conclusion
It can be said that the concept of vicarious liability is a civil one, but with the
evolution of law, the Courts have started to apply the doctrine to criminal cases
also. Sometimes it becomes very important to fix a liability on the principal, so as
to protect the interest of the aggrieved party and also to avoid blame game
between the parties, which in turn may delay justice.

Q.Principle of absolute Liability with respect to landmark case

laws:

Introduction
The principle of absolute liability was evolved in India in the case of M.C Mehta v. Union
of India popularly known as Oleum gas leak case. This is one of the landmark
judgements of the Indian Judiciary. We have always followed the British rules and
regulations even after Independence. Before the evolution of this doctrine, India is been
following the strict liability doctrine. But the problem with that doctrine was it has so many
exceptions that the guilty one always uses one of the exceptions and was done away with
the crime committed.

After the Bhopal leakage case, many people have lost their lives, there was havoc in the
city of Bhopal after the gas leak as many people have lost their lives and in many people
were affected with the fatal diseases that lasted through the generations. So, the Court
decided to depart from the strict liability principle and develop a new principle that is an
absolute liability (strict liability – exceptions). This rule was laid down by the Supreme
Court which is so much wider with respect to the rules that was laid down by the House of
Lords in the case of Ryland v. Fetcher ( When a defendant is guilty he is not allowed to
plead any defence, it is a strict liability with no exception).

Concept of Absolute Liability:

Definition: If an industry or enterprise is engaged in some inherently
dangerous activity from which it is deriving commercial gain and that activity
is capable of causing catastrophic damage then the industry officials are
liable to pay compensation to the aggrieved parties[1].

Dangerous Thing- The liability will only arise if there is any dangerous thing
that has been escaped from the owner’s land. And the thing is likely to cause
damage and can injure any person or person’s property on its escape. In
various cases of strict liability, the following things have been held dangerous
that is- a large pool of water, electricity, gas, explosives, fumes, rusty wires
etc.

Essential Elements of Absolute Liability-

1. Dangerous Thing- The liability will only arise if there is any dangerous thing that has
been escaped from the owner’s land. And the thing is likely to cause damage and can
injure any person or person’s property on its escape. In various cases of strict liability, the
following things have been held dangerous that is- a large pool of water, electricity, gas,
explosives, fumes, rusty wires etc.

Escape– Any dangerous thing which is escaped from the defendant’s control and caused
damaged to the plaintiff’s property or injured any person will come under the ambit of
absolute liability. In the case of Read vs Lyons and Co[2].- In this case, the plaintiff was an
employee in the defendant’s manufacturing company. While doing her duty a piece of
manufactured exploded and she suffered severe harm. Here the court held- that the
plaintiff was doing her duty and the accident occurred within the premises and course of
employment. It was held the defendant cannot escape from his liability and the strict
liability principle is not applicable in this case. The defendant was held liable.

3. Non-Natural use of land– If water is collected only for domestic use then it is not
called as non-natural use but if it is collected in large quantity like in a reservoir then it is
termed as non-natural use of land. In the case of Ryland v. Fletcher[3] it was held that
collecting water in the large quantity amounts to non-natural use of land. The basic line
which is drawn between a natural or non-natural use of land is to keep in mind the
surrounding and social conditions and will a reasonable person would do? When a person
is growing tree in her land that is the natural use of land but when he/she starts growing
poisonous tree then it is termed as non-natural use of land.
4. Mischief- To make the person liable under this principle, the plaintiff at first needs to
show that the defendant had done the non-natural use of land and escaped the
dangerous thing which he has on his land which resulted in the injury further[4].

In the case of Charing Cross Electric Supply Co. vs Hydraulic Power Co[5].- The defendant
was assigned to supply water at different places. The defendant was also required to hold
minimum pressure, but the defendant failed to do so which results in the bursting of the
pipeline at different places. It caused heavy damages to the plaintiff. The defendant was
held liable in this case even was not at fault.

Scope of Rule of Absolute Liability

In almost all the cases the rule of absolute liability is considered as an exception of the law.
After the catastrophic accident of Oleum gas leak tragedy, the act of The Public Liability
Insurance Act, 1991 was introduced. Its objective was to compensate the victims of the
case where the hazardous substances or handling of the dangerous substance is involved.
The main motto behind the act was to create public liability insurance fund which will
eventually be used to compensate the victims[6]

Absolute Liability: The Rule of Strict Liability in Indian Perspective:

Absolute liability is a tort derived from the British concept of strict liability, but with some
changes. It does not give any exceptions to the defendant to save himself from the
wrongful act, which is not the case in strict liability as it leaves room for the defendant to
save himself by proving that the plaintiff was the wrongdoer, it was vis major (act of god),
it was an act of third party or that there was consent.

The principle of absolute liability was established in India through the cases which are MC
Mehta v UOI[1] and Bhopal gas leakage case.[2] The Hon. Supreme court of India modified
rules laid down the case of Ryland v Fletcher[3] by the House of lords making it fitting
according to the Indian scenario.

The Modern stand of Rule of Ryland v Fletcher

The rule of Strict Liability was reason to many exceptions hence practically very less rule
was left. The old rule being subject to many exceptions was not capable of making any
individual strictly liable for his negligence. Therefore it was deemed necessary to make a
harder rule for the same purpose.
Indian judiciary’s View
By observing the need to modify the 19th century rule of Strict Liability the Supreme court
of India in M.C. Mehta case said that “Moreover the principle so established in Ryland v
Fletcher of strict liability cannot be used in the modern era, as the very principle was
evolved in 19th century, and in the period when the industrial revolution in India has just
begun, this two century old principle of tortuous liability cannot be taken as it is in the
modern world without modifications”
Justice Bhagwati also stated that the rule of strict liability was evolved in 19th century, the
time when industrial developments were at a primary stage, in today’s modern industrial
era of the 21st century society where hazardous or inherently dangerous industries are
required to carry out development programme, the this old rule cannot be held relevant in
today’s context. Also, individuals cannot feel inhibited by this rule which was evolved in the
context of totally different social and economic structure.The Division Bench of Andhra
Pradesh High Court also in the case of K. Nagireddi v. Union Of India[4] emphasized the
need to alter the old principle and stated its view that “In India the general rule of Ryland
v. Fletcher is accepted, though. the principle is needed to be modified in its application. to
the Indian consideration”.
The term ‘Absolute Liability’, as misnomer.-

In his judgement, Blackburn ,the judge, referred to the liability as ‘absolute’. But the liability
was in fact strict and in no way was it absolute. The rule in Rylands v. Fletcher was made
subject to so many exceptions that in reality very little of the rule was left.[5] The recent
trend is to limit the scope of the rule, making the rule adjacent to the modern theory that
there shall be no liability without a fault. In view of the given reasons, the term ‘absolute
liability’ is misnomer and the appropriate term is ‘Strict Liability’[6]

Difference Between Absolute Liability and Strict Liability

The difference between Strict and Absolute liability rules was laid down by the Supreme
Court in the case of M.C.Mehta v. Union of India, where the court explains:-
Firstly, in Absolute Liability only those enterprises will be held liable who are involved in
hazardous or inherently dangerous activities, which implies that other industries not falling
in the said ambit would be covered under the rule of Strict liability.

Secondly, the escape of a dangerous thing from one’s own land is not considered an
essential; meaning that the rule of absolute liability will be applicable to those who are
injured within and outside the premise.

Thirdly, the rule of Absolute liability does not take into account the exceptions, whereas
some exception are provided in the rule of Strict Liability.
Also, in the case of Union of India v. Prabhakaran Vijay Kumar[7] the constitutional bench
was of the view that the rule of MC Mehta is cannot be subjected to any kind of exception.
Fourthly, the Rule of Ryland v. Fletcher can be applied only to non-natural use of land but
the new rule of absolute liability can be applied to natural use of land also. If an individual
uses a dangerous substance which can be natural use of land, but if such substance
escapes, he would be held liable even though he had taken proper care.
Further, the extent of the damage provided depends on the financial capability of the
institute and magnitude of the harm caused. The Supreme Court also contended that , the
enterprise ought to held under an obligation to ensure that the inherently dangerous or
hazardous activities in which they are engaged must be conducted with the highest mark
of standards of safety and security, and if any harm occurs on account of such negligent
activity, the enterprise/institute must be held absolutely liable to compensate for the
damage caused and no opportunity is to be given to the enterprise to say that it had taken
all reasonable care required and that the harm was caused without any negligence on their
part.[8]

Our Supreme Court found that in the modern times of science and technology the rule of
Rylands v. Fletcher was not suitable.Hence, it was replaced by the rule of absolute liability.

Scope Of the New Rule of Absolute Liability

The extent of new rule is very wider in all terms than old rule.

 Do not have any exception

 Very wide scope.
 Cover not only public negligence or fault but cover even personal injuries caused
due to the negligence of neighbour.
 Now cover not only the occupier of land but also non occupier of the land.[9]

https://lawbhoomi.com/absolute-liability-the-rule-of-strict-liability-in-indian-perspective/

Q. Top 9 important cases laws on liability under law of torts?

Introduction
According to Winfield ‘Tortious liability arises from the breach of a duty primarily fixed by
law; such duty is towards persons generally and its breach is redressable by an action for
unliquidated damages.’[1] To have a case of tortious liability, there must be a wrongful act
committed by a person, out of which a person suffers some kind of damage. As the law of
torts is uncodified one and is developed by judicial interpretations, this concept can also
be better explained through case laws. This article discusses 9 important case laws on the
same-
Rylands v. Fletcher[2], 1868

The concept of strict liability was first applied by the House of Lords in this case only. In
this case, it was observed by the court that there exist certain activities which are
inherently so dangerous in nature that merely carrying them on poses a duty on the
person who does so, to compensate for any damage irrespective of any carelessness on
their part. The rationale behind imposing such liability is the foreseeable risk involved in
such activities.

Here defendant who was a mill owner had appointed certain contractors (apparently with
requisite skills) to construct reservoirs in his land to provide water in the mill. During the
work, the contractors came across certain old shafts in the defendant’s land. Such shafts
were connected with the plaintiff’s mine but such was not ascertainable as the shafts
appeared to be filled with the earth. As soon as the reservoirs where filled, the shafts broke
down and thereby flooded the mines of the plaintiff.

The court held that building such a reservoir was at the risk of defendants and in course of
it, if any mishap occurred, defendants would be liable for such escape of materials.

Crowhurst v. Amersham Burial Board[3], 1878

In this case, the court was asked to decide whether planting a poisonous tree can amount
to non-natural use of the land, so that defendant can be made strictly liable as per
Ryland’s case. The court answered affirmatively as such tree was not of ordinary nature and
moreover the branches of the tree were “escaped” to the plaintiff’s land, nibbling which
the horse of the plaintiff died. Thus the defendant was made strictly liable as the risk was
of foreseeable nature.

Bolton v. Stone[4], 1951

This case involves tort of negligence where the court was faced with the issue to determine
how a reasonable person would behave and when there will be a breach of duty to
establish a case of negligence.

In this case, the claimant was hit by a ball from the neighboring cricket field and bought an
action against them. It was found by the court that the field was arranged in a way that
was protected by 17-foot gap between the ground and the top of the surrounding fence.
Moreover, such an incident of the ball crossing the fence and hitting a person was rare.
Thus House of Lords concluded that there was no breach of duty on part of cricket club as
they took necessary precautions. Thus defendants were held not to be negligent.

M.C Mehta v. UOI[5], 1987 (Oleum Gas leak Case)

In this case, our Hon’ble Supreme Court has laid down the principle of Absolute Liability.
This is the same concept as no-fault liability or strict liability but it’s just that the exception
available in the case of strict liability is not present here.

In this case, a petition was filed by a socio-activist lawyer seeking closure of Shriram
Industries after leakage of oleum gas which affected many people. The Apex Court
in Oleum Gas Leak case evolved the rule of Absolute liability i.e. if any person is engaged
in an inherently hazardous or dangerous activity, and if harm is caused due to an accident
related to such activity, the person would be held absolutely liable with no exception
available to him.

Indian council for Enviro-Legal Action v. UOI[6], 1996

This is a case, where court applied the principle of absolute liability to protect the
environment and lives of the people associated with it. Here a petition was filed by an
environmentalist organization to draw the court’s attention towards issues faced by the
people of village Bichhari (Udaipur, Rajasthan) as being in proximity to a chemical plant. It
was found that the plant was releasing un-treated toxic wastewater and sludge in open
fields of the village, which polluted the soil and groundwater. Further, the pollution caused
various diseases and deaths among people living in the near area. Even the matter was
raised in the parliament but to no avail.

The court concluded that as the plant is engaged in a hazardous activity which resulted in
causing harm to the number of people, they are to be made absolutely liable. The court
gave the authority to Central government to decide and recover the compensation
amount from them after assessment.

P & O Steam Navigation Co. V. Secretary of State,[7] 1861

The pre-constitution case where the court accepted that the doctrine of “King can do no
wrong” was applicable to East India Company and thus one cannot be made liable for the
harm caused by an act perform under sovereign authority.

In this case, the servants of the plaintiff company were met with an accident due to the
fault of the servants of the government. But the government servants were on duty and
carrying sovereign function. Considering this the court granted them immunity from any
tortious liability.

State of Rajasthan v. Vidyawati,[8] 1962

This was the first case before our Supreme Court of India post-Independence dealing with
the doctrine of Sovereign immunity. Here the driver of the jeep which was maintained and
owned by the Rajasthan government negligently causes injury to pedestrians. The defense
of sovereign immunity was claimed. But the court efficiently rejected such and held that
merely by driving a government jeep one cannot claim sovereign immunity. Moreover, the
court stated that “The old feudalistic notion of justice cannot be sustained” where the state
has a welfare role to play.
Kasturila V. State of Uttar Pradesh[9], 1965

In this case, the plaintiff was arrested by three policemen on a suspicion that he was
carrying stolen property with him (which was gold and silver). The plaintiff got released on
bail and was given his silver but the gold was kept in the custody of head constable. Later
it was found that the constable fled to Pakistan after misappropriating the gold of the
plaintiff. The plaintiff sued the Government as the gold was seized by the Government’s
employee and in the course of his employment.

Q. Explain the redressal mechanism available to consumers under the Consumer Protection
Act, 1986.

EXPLAIN THE THREE TIER SYSTEM OF CONSUMER REDRESSAL AGENCIES

UNDER CONSUMER PROTECTION ACT 1986?

ANS - The three-tier grievances machinery set up by the Consumer Protection Act 2019 to
redress consumer grievances is known as Redressal Agencies. The three agencies are
District Commission, State Commission, and National Commission.
According to the Consumer Protection Act 2019, a Consumer is a person who buys any
goods or avails any services for a consideration, which has been paid or promised to pay
or partly paid or partly promised or under any scheme of deferred payment. A consumer
also includes a person who is using the goods or beneficiary of service with the approval
of the buyer and applies to both online and offline transactions through electronic means
of teleshopping or direct selling or multilevel marketing.
Redressal Agencies or Three-Tier Grievances Machinery
under the Consumer Protection Act
The three redressal agencies under the Consumer Protection Act, 2019 are District
Commission, State Commission, and National Commission.

1. District Commission

A district commission includes a president (who can be a working or retired judge of the
District Court) and two other members. They are appointed by the state government. One
can file a complaint for goods and services of ₹1 crore or less in this agency. For the
complaints filed, if the district commission feels a requirement, it sends the goods to the
laboratory for testing and gives its decision based on the laboratory report and facts.
If the aggrieved party is not happy with the jurisdiction of the district commission, then
they can appeal against the judgment of this agency in the State Commission within 45
days.
2. State Commission

A state commission includes a president (who must be a working or retired judge of the
High Court) and at least two other members. They are appointed by the state government.
One can file a complaint of goods and services worth less than ₹10 crores and more than
₹1 crore in this agency. After receiving a complaint from the aggrieved party, the state
commission contacts the party against whom the complaint has been filed. Also, for the
complaints filed, if the state commission feels a requirement, it sends the goods to the
laboratory for testing.

If the aggrieved party is not happy with the jurisdiction of the state commission, then they
can appeal against the judgment of this agency in the National Commission within 30 days
by depositing 50% of the fine money.

3. National Commission

A national commission includes a president and four other members one of whom shall be
a woman, and Central Government appoints them. One can file a complaint of goods and
services worth more than ₹10 crores in this agency. After receiving a complaint from the
aggrieved party, the national commission informs the party against whom the complaint
has been filed. Also, for the complaints filed, if the state commission feels a requirement,
it sends the goods to the laboratory for testing, and then gives judgement based on the
reports.
If the aggrieved party is not happy with the jurisdiction of the national commission, then
they can appeal against the judgment of this agency in the Supreme Court within 30 days
by depositing 50% of the fine money.

District Commission v/s State Commission v/s National Commission

District State National

Basis Commission Commission Commission

A district commission A state commission A national

includes a president includes a president commission includes a
and two other and at least two president and four
Composition
members, and one of other members, and other members one of
the members has to be one of the members whom shall be a
a woman. has to be a woman. woman.

Who can be a A working or retired A working or retired A working or retired

President judge of the District judge of the High judge of the Supreme
Court can be a Court can be a Court can be a
 District State National
Basis Commission Commission Commission

president of the
president of the president of the
National
District Commission. State Commission.
Commission.

By taking the After consulting After consulting with

recommendation of with the Chief the Chief Justice of
the selection Justice of the High India, the central
Appointment
committee, the state Court, the state government appoints
of President
government appoints government appoints the president of the
the president of the the president of the National
District Commission. State Commission. Commission.

One can file a

One can file a complaint of goods One can file a
complaint for goods and services worth complaint of goods
Jurisdiction
and services of ₹1 less than ₹10 crores and services worth
crore or less. and more than ₹1 more than ₹10 crores.
crore.

If the aggrieved party

is not happy with the
If the aggrieved
jurisdiction of the
party is not happy
national commission,
If the aggrieved party with the jurisdiction
then they can appeal
is not happy with the of the state
against its judgment in
jurisdiction of the commission, then
the Supreme Court
Appeal district commission, they can appeal
within 30 days by
against orders then they can appeal against its judgment
depositing 50% of the
against its judgment in in the National
fine money. However,
the State Commission Commission within
one can file the
within 45 days. 30 days by
complaint only when
depositing 50% of
the value of goods and
the fine money.
services exceeds ₹10
crores.

CONCEPT OF CONSUMER & CONSUMER PROTECTION ACT - 2019

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

In India, the protection of the rights of the consumers is administered by

the Consumer Protection Act, 2019. The Consumer Protection Act, 2019 was
introduced to replace the Consumer Protection Act, 1986. The new Act contains
various provisions which incorporate the challenges faced by modern and
technology-dependent consumers. The Act also contains various provisions for the
protection and promoting the rights of the consumers.

Meaning of the word ‘consumer’

A consumer is an individual or group of individuals who purchase goods and
services for their own personal use and not for the purpose of manufacturing or
resale.

Section 2(7) of the Consumer Protection Act, 2019 defines a consumer as any

(a) person who buys goods or services

(b) in exchange for consideration

(c)and utilises such goods and services for personal use

(d )and for the purpose of resale or commercial use.

In the explanation of the definition of consumer, it has been distinctly stated that
the term ‘buys any goods’ and ‘hires or avails any services’ also includes all online
transactions conducted through electronic means or direct selling or teleshopping
or multi-level marketing.

CONSUMER – CONSUME - Goods- Movable Property

Services- Govt. Services/ Non Govt. Services

Consumer Right
 1. Right to Safety
2. Right to Service
3. Right to Choice
4. Right to information
5. Right to redressal
6. Right to be heard
7. Right to consumer Education

Need for the Consumer Protection Act, 2019

The Consumer Protection Act, 2019 was enacted by the Indian legislature

(b) to deal with matters relating to violation of consumer’s rights,

(c) unfair trade practices,
(d) misleading advertisements, and
(e) all those circumstances which are detrimental to the consumer’s rights.

The intention of the Parliament behind enacting the Act was to include provisions
for e-consumers due to the development of technology, buying and selling of
goods and services online have considerably increased during the last few years.

The Act seeks

(a) to provide better protection of the rights

(b) and interests of the consumers by establishing Consumer Protection
Councils
(c) to settle disputes in case any dispute arises and to provide adequate
compensation to the consumers in case their rights have been infringed.

It further provides speedy and effective disposal of consumer complaints through

alternate dispute resolution mechanisms.

The Act also promotes consumer education in order to educate the consumer
about their rights, responsibilities and also redressing their grievances.

Objective of the Consumer Protection Act, 2019

The main objective of the Act is to protect the interests of the consumers and to
establish a stable and strong mechanism for the settlement of consumer disputes.
The Act aims to:

1. Protect against the marketing of products that are hazardous to life and
property.
 2. Inform about the quality, potency, quantity, standard, purity, and price of
goods to safeguard the consumers against unfair trade practices.
3. Establish Consumer Protection Councils for protecting the rights and
interests of the consumers.
4. Assure, wherever possible, access to an authority of goods at competitive
prices.
5. Seek redressal against unfair trade practices or unscrupulous exploitation
of consumers.
6. Protect the consumers by appointing authorities for timely and sufficient
administration and settlement of consumers’ disputes.
7. Lay down the penalties for offences committed under the Act.
8. Hear and ensure that consumers’ welfare will receive due consideration at
appropriate forums in case any problem or dispute arises.
9. Provide consumer education, so that the consumers are able to be aware
of their rights.
10. Provide speedy and effective disposal of consumer complaints through
alternate dispute resolution mechanisms.

What are consumer rights under Consumer Protection Act, 2019

There exist six rights of a consumer under the Consumer Protection Act, 2019.
The rights of the consumers are mentioned under Section 2(9) of the Act, which
are as follows:

1. The right of a consumer to be protected from the marketing of goods and

services that are hazardous and detrimental to life and property.
2. The right of a consumer to be protected against unfair trade practices by
being aware of the quality, quantity, potency, purity, standard and price
of goods, products or services.
3. The right of a consumer to have access to a variety of goods, services
and products at competitive prices.
4. The right to seek redressal at respective forums against unfair and
restrictive trade practices.
5. The right to receive adequate compensation or consideration from
respective consumer forums in case they have been wronged by the
seller.
6. The right to receive consumer education.
What are unfair trade practices under Consumer Protection Act, 2019
Section 2(47) of the Consumer Protection Act, 2019 defines the term ‘unfair
trade practices’ which include:

1. Manufacturing bogus goods or providing defective services.

2. Not issuing cash memos or bills for the goods purchased or services
rendered.
3. Refusing to take back or withdraw the goods or services and not
refunding the consideration taken for the purchase of the goods or
services.
4. Disclosing the personal information of the consumer.

Changes incorporated in Consumer Protection Act, 2019

The changes that were incorporated with the enactment of the Consumer
Protection Act, 2019 are:

1. The District Commissions will have the jurisdiction to entertain

complaints where the value of the goods, services or products paid as
consideration to the seller does not exceed 50 lakh rupees.
2. State Commissions will have the jurisdiction to entertain complaints
where the value of the goods, services or products paid as consideration
to the seller exceeds 50 lakh rupees but does not exceed two crore
rupees.
3. The National Commission will have the jurisdiction to entertain
complaints where the value of the goods, services or products paid as
consideration to the seller exceeds two crore rupees.
4. The Act further states that every complaint concerning consumer dispute
shall be disposed of as expeditiously as possible. A complaint filed under
this Act shall be decided within the period of three months from the date
of receipt of notice by the opposite party in the cases the complaint does
not require analysis or testing of the goods and services and within a
period of 5 months, if it requires analysis or testing of the goods and
services.
5. The Consumer Protection Act, 2019 also facilitates the consumers to file
complaints online. In this regard, the Central Government has set up
the E-Daakhil Portal, which provides a convenient, speedy and
inexpensive facility to the consumers all over India so that they are able
to approach the relevant consumer forums in case of any dispute arises.
6. The Act lays down the scope for e-commerce and direct selling.
 7. The Consumer Protection Act, 2019 lays down provisions for mediation
and alternative dispute resolution so that the parties are able to dispose
of the case conveniently without going through the trouble of litigation.
8. The Consumer Protection Act, 2019 contains provisions for product
liability, unfair contracts and it also includes three new unfair trade
practices. In contrast, the old Act just stated six types of unfair trade
practices.
9. The Act of 2019 acts as the advisory body for the promotion and
protection of consumer rights.
10. Under the Consumer Protection Act, 2019 there is no scope for
selection committees, the Act authorises the Central Government to
appoint the members.

Therefore, with the changes in the digital era, the Indian Parliament enacted and
brought the Consumer Protection Act, 2019 in force to include the provisions for
e-commerce as digitalization has facilitated convenient payment mechanisms,
variety of choices, improved services, etc.

Essential provisions of Consumer Protection Act, 2019

The essential provisions of the Consumer Protection Act, 2019 are:

Consumer Protection Councils

The Act establishes consumer protection councils to protect the rights of the
consumers at both the national and state levels.

Central Consumer Protection Council- Section 3

Under Chapter 2 Section 3 of the Consumer Protection Act, 2019 the Central
Government shall establish the Central Consumer Protection Council which is
known as the Central Council.

It is an advisory body and the Central Council must consist of the following
members;

1. The Minister-in-charge of the Department of Consumer Affairs in the

Central Government will be appointed as the chairperson of the council,
and
2. Any number of official or non-official members representing necessary
interests under the Act.
Section –4 (Section – 4 gives the Procedure for meetings)

Section – 5 of this Act explains about the objectives of the Central Council, and
the objectives is to render the protection and promotion of the consumer rights
under this act.

of this act mentions The Central Council may meet as and when necessary,
however, they must hold at least one meeting every year.

The purpose of the Central Council is to protect and promote the interests of the
consumers under the Act.

State Consumer Protection Councils – Section- 6

Every state government shall establish a State Consumer Protection Council
known as the State Council having jurisdiction over that particular state. The
State Council acts as an advisory body. The members of the State Council are:

1. The Minister-in-charge of the Consumer Affairs in the State Government

will be appointed as the chairperson of the council,
2. Any number of official or non-official members representing necessary
interests under the Act, and
3. The Central Government may also appoint not less than ten members for
the purposes of this Act.

The State Councils must hold at least two meetings every year.

Section -7 off the Act explains the objective of the State Councils as it shall
render advise on promotion and protection of consumer rights under this act
within the State.

District Consumer Protection Council- Section -8

Under Section 8 of the Act, the state government shall establish a District
Consumer Protection Council for every district known as the District Council. The
members of the District Council are:

1. The collector of that district will be appointed as the Chairperson of the

District Council known as District Consumer Protection Council, and
2. The District Council shall be an advisory council and consist of the
following members, namely, the Collector of the District.
 3. Any other members representing necessary interests under the Act those
who are the members and non- members of the act.

The objective of this act is given in Section – 9 of this Act, where the District
Council shall be the render the services and advice on promotion and protection of
the consumer rights under this act within the district.

Central Consumer Protection Authority- SECTION-10

The Central Government shall establish a Central Consumer Protection Authority
which is known as the Central Authority under Section 10 of the Consumer
Protection Act, 2019, to regulate matters relating to violation of the rights of
consumers, unfair trade practices and false or misleading advertisements which
are harmful to the interests of the public and consumers and to promote, protect
and enforce the rights of consumers. The Central Government will appoint the
Chief Commissioner and the other Commissioners of the Central Authority as
required under the Act.

The Central Authority must have an ‘Investigative Wing’ under Section 15 of the
Act to conduct an inquiry or investigation. The investigative wing must comprise
of the Director-General and the required number of Additional Director-General,
Director, Joint Director, Deputy Director and Assistant Director possessing the
required experience and qualifications to carry out the functions under this Act.

Functions and duties of the Central Authority

The functions and responsibilities of the Central Authority are laid down in Section
18 of the Act which includes;

1. To protect and promote the rights of the consumers as a class and to

prevent violation of consumer rights,
2. To prevent unfair trade practices,
3. To ensure no false or misleading advertisements regarding any goods or
services are promoted,
4. To ensure no person takes part in false or misleading advertisements,
5. Inquire or investigate in cases of violation of consumer rights or unfair
trade practices.
6. File complaints before the National, State or District Commission as the
case may be,
7. To review matters relating to the factors hindering the enjoyment of
consumer rights.
 8. To recommend the adoption of international covenants and best
international practices concerning consumer rights
9. Promote research and awareness of consumer rights.
10. Lay down necessary guidelines to prevent unfair trade practices and
protect the interests of the consumers.

Furthermore, the Central Authority also has the power to investigate after
receiving any complaint or directions from the Central Government or of its own
motion in cases where there is an infringement of consumer rights or unfair trade
practices are carried out.

And if the Central Authority is satisfied that infringement (breach) of consumer

rights or unfair trade practices has occurred then it may:

 Recall the goods or services which are hazardous and detrimental to the
consumers,
 Reimburse the prices of the goods and services to the consumers, and
 Discontinue the practices that are prejudicial and harmful to the
consumers.

Under Section 21 of the Act, the Central Authority is authorised to issue directions
to false and misleading advertisements which may extend to ten lakh rupees.
While determining the penalty of the offence the Central Authority must keep in
mind factors such as; the population affected by the offence, frequency of the
offence and gross revenue from the sales of such product. The Central Authority
can also direct search and seizure for the purposes of this Act and in that case the
provisions of the Criminal Procedure Code, 1973 will apply.

Consumer disputes redressal commission

SECTION -28 The state government shall establish a District Consumer Disputes
Redressal Commission, known as the District Commission in each district of the
state under the Consumer Protection Act, 2019. The District Commission shall
comprise of a President and not less than two members prescribed by the Central
Government.

Section 34 of the Act authorises the District Commission to entertain complaints

where the value of the goods or services paid as consideration does not exceed
one crore rupees. The complaint relating to goods and services can be filed to the
District Commission by the consumer, recognized consumer association, Central
Government, Central Authority, State Government, etc.

Section 36 states that all the proceedings before the District Commission shall be
conducted by the President and at least one member of the commission.

Mediation
Chapter 5 Section 74 of the Consumer Protection Act, 2019 states that a
Consumer Mediation Cell shall be established by the Central Government at the
national level and every state government shall establish Consumer Mediation Cell
exercising within the jurisdiction of that state. The mediator nominated to carry
out the mediation shall conduct it within such time and in such manner as may be
specified by regulations.

Section 75 of the Act talks about the empanelment of the mediators. It states the
qualifications, terms and conditions of service, the procedure for appointing, and
the fee payable to the empanelled mediators.

It is the duty of the mediator to disclose certain facts such as; any personal,
financial or professional in the result of the consumer dispute, the circumstances
giving rise to their independence or impartiality and any other necessary
information for the protection of consumer rights.

Product liability
Under Section 83 of the Act, a product liability action may be brought by a
complainant against a product manufacturer, product service provider or product
seller.

Liability of product manufacturer

A product manufacturer will be held liable in a product liability action under the
following circumstances:

 The product contains manufacturing defects.

 The product is defective.
 There is a deviation from manufacturing specifications.
 The product does not conform to the express warranty.
 The product fails to contain adequate information for proper usage.
Liability of product service provider
A product service provider will be held liable in a product liability action under the
following circumstances:

 The service provider will be responsible when the service provided by

them is faulty or imperfect.
 There was an act of negligence on their part.
 The service provider failed to issue adequate instructions and warnings
for the services.
 The service provider failed to conform to the express warranty or terms
and conditions of the contract.

Liability of product seller

A product seller will be held liable in a product liability action under the following
circumstances:

 They altered or modified the product which resulted in being detrimental

to the consumer.
 They failed to exercise reasonable care in assembling, inspecting or
maintaining such product
 They exercised substantial control over the product which resulted in
causing harm to the consumer.

Exceptions to product liability

There are certain exceptions to product liability action mentioned in Section 87 of
the Act, such as;

 The product was altered, modified or misused by the consumer,

 A consumer cannot bring product liability action when the manufacturer
has given adequate warnings and instructions for the use of the product,
 The manufacturer would not be liable in case of a product liability action
for not warning about any danger that is commonly known to the general
public.

Offences and penalties under Consumer Protection Act, 2019

The offences and penalties listed under this Act are mentioned as follows.
 1. Punishment for false and misleading
advertisements: Under Section 89 of the Act any manufacturer or
service provider who promotes false or misleading advertisements will be
punished with imprisonment for a term that may extend to two years and
with fine that may extend to ten lakh rupees.
2. Punishment for manufacturing, selling, distributing products
containing adulterants: Under Section 90 of the Consumer Protection
Act, 2019 any person who sells, manufactures, distributes products
containing adulterants shall be penalised in case of the following
circumstances;

 If the adulterated product does not cause any injury to the consumer
then the term for imprisonment will extend to a period of six months and
fine which may extend to one lakh rupees,
 If the product containing adulterant causes injury not amounting to
grievous hurt then the term for imprisonment will extend to a period of
one year and fine which may extend to three lakh rupees,
 If the product containing adulterant causes injury amounting to grievous
hurt then the term for imprisonment will extend to a period of seven
years and fine which may extend to five lakh rupees,
 If the product results in causing death to the consumer then the term for
imprisonment will be for a period of seven years which may extend to life
imprisonment and fine not less than ten lakh rupees.

3. Punishment for manufacturing, selling, and distributing spurious

products: Section 91 states that any person who sells, manufactures, or
distributes spurious products shall be punished for such acts.

How do consumers benefit from Consumer Protection Act, 2019

The Consumer Protection Act, 2019 is a significant piece of legislation brought as
it is beneficial for the consumers. The Act widens the scope of protection
regarding the rights and interests of consumers.

1. Unfair contracts: The Act introduced ‘unfair contract’ under Section

2(46) of the Act, which includes contracts requiring excessive security
deposits to be given by the consumer for the performance of contractual
obligations. However, the inclusion of unfair contracts in the Act would
enable the consumer to file complaints in such cases and would also keep
the fraudulent businesses in check.
2. Territorial jurisdiction: The Act enables the consumers to file
complaints where the complainant resides or personally works for gain
thus it would benefit the consumers in seeking redressal for their
grievances when their rights have been violated.
 3. False and misleading advertisements: The Act defines the term ‘false
and misleading advertisements’ and also lays down strict penalties for
such acts or omissions.
4. Product liability: The term ‘product liability’ has been defined by this
Act, which states that it is the duty of the product manufacturer, service
provider or seller to compensate for any harm caused to a consumer by
such defective product manufactured or service provided to the
consumer.
5. Mediation and alternative dispute resolution: The Act enables the
consumer to opt for mediation and alternative dispute resolution
mechanisms for speedy and effective settlement of consumer disputes.
6. E-filing of complaints: The Act also facilitates e-filling of the complaints
and seeking video conference hearings by the Commission. Thus,
providing convenient means for the consumers to voice their grievances.

Landmark case laws

Horlicks Ltd. v. Zydus Wellness Products Ltd. (2020)

In this case, both parties are manufacturers of nutritional drinks, however, Zydus
advertised a television commercial trivialising the products of Horlicks Ltd. The
commercial was being telecasted in various languages including English, Tamil and
Bengali. Therefore, the Delhi High Court relied on various judgments on
misleading advertisements, disparagement and law governing the publication of
advertisements on television and held that the advertisement is disparaging as it
does not provide any concrete proof regarding the quality of the product. Further,
electronic media leaves an impression on the minds of the viewers thus, these
types of advertisements would not only be detrimental to the consumers but also
the complainant would suffer irreparable damage.

A famous judgement relied on by Delhi High Court while deciding this case
is Pepsi Co. Inc. v. Hindustan Coca Cola Ltd., 2003 where the Delhi High Court
held that there are certain important factors that are to be kept in mind in case of
disparagement which are; manner of the commercial, intent of the commercial
and storyline of the commercial.

Veena Khanna v. Ansal Properties & Industries Ltd,

NCDRC (2007)
In this case, the complainant offered to purchase a flat from the respondent which
the respondent agreed to deliver on 1.6.1999 through a letter. However, the flat
was not constructed within the specified date and hence it was not delivered. For
such deficiency in services, the complainant demanded the refund of the
deposited amount with interest at the rate of 18% pa which was refused by the
opposite party.

The National Commission observed that due to delays in construction and delivery
of possession it is quite difficult for a consumer to purchase a flat at market price.
The National Commission stated that it is the duty of the State Commission to
direct the builders to deliver the possession of the flat as soon as it is completed
and the complainant should be awarded suitable compensation for the delay in
construction. The complainant just claimed the refund amount before the State
Commission, but the case was pending before the commission for five years and
during that time there was a tremendous rise in the market prices of the
immovable property. The National Commission further stated that it was the duty
of the State Commission to direct the respondents to deliver the possession of the
flat or any other flat of equivalent size to the complainant with appropriate
compensation, due to the delay in delivering the possession within the specified
time. Or, adequate compensation ought to have been provided to the complainant
so that they could purchase a new flat of the same size at the prevailing market
rate in that same locality.

Sapient Corporation Employees v. Hdfc Bank Ltd. & Ors.

(2012)
In this case, a consumer complaint was filed by Sapient Corporation Employees
Provident Fund Trust against HDFC bank Ltd. The complainant claimed that OP-
Bank has committed deficiency of services by debiting the account of the
Complainant. The court in this case held that there was no deficiency of service on
the part of OP-bank and the arguments contented by the complainant are
baseless. A behaviour that conforms to the direction of regulatory authority
cannot be said to be negligence or service deficiency.

Conclusion
The Consumer Protection Act, 2019 is a modified piece of legislation that offers
the consumers a great variety of benefits and rights to protect them from unfair
trade practices, false or misleading advertisements, etc. The Act enables the
consumers to seek alternative dispute resolution mechanisms and mediation so
that the parties can opt for speedy and effective settlement of consumer disputes.
The scope of e-filing of complaints and e-consumers in the Act portrays forward-
thinking in part of the legislature. Furthermore, the Act also introduced new terms
such as product liability, unfair contracts, etc. thereby widening the scope of
protection of consumer rights and enabling the consumers to file complaints when
their rights have been violated under the Act.
Thus, the inclusion of the provisions in this fills up the lacunae in the Consumer
Protection Act, 1986. The enactment of the Act was paramount and it changed the
ambit of protecting the rights of consumers in the country.

Analysis on deficiency of services

under Consumer Protection Act,
2019
The Consumer Protection Act, 2019 (CPA) covers services such as:
 Banking - Banking is a transaction dealing with money and there are a
number of banks that have been set up to provide services relating to
money, in the form of cheques or loans or accepting deposits, lockers
facility, investment, etc
 Financing:
 Insurance: Insurance is an agreement between one party, the insurer, to
indemnify the insured in cases of any financial loss according to the terms
and conditions of the contract
 Transport
 Processing
 Supply of electric energy
 Board or lodging
 Entertainment
 Amusement
 Purveying of news or other information

The CPA also protects consumers from unfair trade practices and defective goods and
services. It also provides compensation for injuries or harm caused by such goods and
services.

DEFICENCY
INTRODUCTION:

In the tough competition of the market, some traders do unfair things to survive, like charging too
much, giving less than promised, using tricky tactics, and selling faulty products. This made people
think about how to protect consumers and make sure they are treated well. In 2019, a law called
the Consumer Protection Act was made to solve problems between consumers and sellers. This law
lets consumers complain if they are not happy with a product or service. More and more people
are realizing their rights as consumers. The law helps punish businesses that don't treat customers
right, making sure people get fair treatment and compensation when they face problems with what
they buy or use.

Deficiency in services

What is a service?
Service is an intangible benefit availed by the consumer from the service provider.
On a daily basis, we all humans hire different services. Term service is defined
under Section 2(42) of the Consumer Protection Act, 2019, which include
facilities related to banking, financing, insurance, telecom, processing, transport,
etc. Service doesn’t include any free service, it should be in paid form.

WHAT IS THE RATIONALE OF STRICT LIABILITY? EXPLAIN CONCERNING RYLAND AND FLETCHER.

Some activities may be so dangerous that the law has to regulate them
with extreme consequences. For example, the law may sometimes levy a
penalty even if damage occurs without somebody’s fault. This is exactly
what happens under the rule of strict liability. This rule is very important
for commercial and other activities that have the potential to result in
horrific damages.
Under the strict liability rule, the law makes people pay compensation for
damages even if they are not at fault. In other words, people have to pay
compensation to victims even if they took all the necessary precautions.
In fact, permissions allowing such activities often include this principle as
a pre-condition.