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UNIT 1

CH-1 MEANING, DEFINITIONS, NATURE AND ELEMENTS OF TORTS, TORTS AND

CONTRACTS, TORTS AND CRIMES, DAMNUM SINE INJURIA AND INJURIA SINE
DAMNUM.

INTRODUCTION
The Law of Torts focuses on safeguarding a range of societal interests. Its
fundamental purpose is to protect these interests by redistribu ng losses
among the involved par es. This involves compelling the individual responsible
for infringing upon such interests to provide monetary compensa on as sought
by the aggrieved party. The Law of Torts is a legal branch that has evolved
through judicial proceedings. Judicial process essen ally entails the judiciary
evalua ng and interpre ng social events.
A significant por on of Tort law is yet to be codified, both in England and India.
In 1886, efforts were made in India to codify civil wrongs, with Sir Frederick
Pollock dra ing a bill tled “The Indian Civil Wrongs Bill.” However, the bill did
not pass into law, as the Government of India displayed no interest in codifying
this legal branch since then.
MEANING
The term ‘Tort’ originates from the La n word ‘tortum,’ signifying ‘to twist.’
Consequently, it denotes behaviour that is not legal but rather distorted,
crooked, or unlawful. The individual responsible for commi ng the tort is
referred to as the ‘tort person,’ and their wrongdoing is termed a ‘tortuous act.’
In general terms, every ci zen behaves responsibly and performs their du es
towards society in a straigh orward manner. However, when someone does
not behave accordingly or chooses a crooked path, they have commi ed a tort.
A tort is a civil wrong, signifying any individual who inadvertently inflicts harm,
such as death, accidents, nervous shock, or other consequen al losses that
cause suffering to another person. Therefore, a person who has experienced
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damage can seek compensa on for their injury from the individual responsible
for the loss under tort law.
A common example of a tort is a car accident where one driver fails to obey
traffic signals and collides with another vehicle, causing injury to the
occupants. In this scenario, the driver who disregarded traffic rules and caused
harm may be held liable for negligence under tort law. The injured party can
then seek compensa on for medical expenses, property damage, and other
losses resul ng from the accident.
Tort law determines whether the accused party can be held responsible for the
inflicted injury and establishes the amount of compensa on en tled to the
injured party.
DEFINITIONS
Several jurists or thinkers have offered defini ons of tort. Here are a few
examples-
1. Salmond :
He said, “Tort is a civil wrong for which the remedy is a common law ac on for
unliquidated damages and which is not exclusively the breach of a contract or
the breach of a trust or other merely equitable obliga on.”
2. Clerk & Lindsell :
“A tort may be described as wrong independent of contract, for which the
appropriate remedy is common law ac on.”
3. Sir Frederick Pollock :
“The law of torts in civil wrong is a collec ve name for the rules governing
many species of liability which, although their subject ma er is wide and varied
have certain broad features in common, enforced by the same kind of legal
process and are subject to similar excep ons.”
4. Fraser :
It is an infringement of a right in rem of a private individual giving a right of
compensa on at the suit of the injured party.
5. Lord Denning :
“The province of tort is to allocate responsibility for injurious conduct”.
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6. Winfield :
Winfield defined tor ous liability in the following words; “Tor ous liability
arises from the breach of a duty primarily fixed by the law; this duty is towards
persons generally and its breach is redressable by an ac on for unliquidated
damages”.
7. Sec. 2(m) of the Limita on Act, 1963 :
“Tort means a civil wrong which is not exclusively a breach of contract or
breach of trust.”
(The defini on of Tort under the Limita on Act, 1963 is also residuary.)
ELEMENTS OF TORTS
To cons tute a tort, it is essen al that the following three condi ons must be
sa sfied :-
1. Wrongful act or Omission:
To be held legally accountable, an individual must have engaged in a wrongful
act or omission, essen ally viola ng a duty prescribed by law. In legal terms, a
duty implies a legal constraint or requirement dicta ng that one should
conduct themselves in a manner consistent with how a reasonable person
would behave in a comparable situa on. A wrongful act or omission can occur
through negligence, inten on, or even by viola ng a stringent duty. Whether
the ac on is commi ed carelessly, purposefully, or in breach of a strict duty, it
cons tutes the basis for legal culpability.
Municipal Corpora on of Delhi Vs. Subhagwan and Ors., 1966
In this case, the collapse of a Clock Tower in Chandni Chowk, Delhi, owned by
the Municipal Corpora on, resulted in tragic fatali es. Legal ac on ensued,
with heirs filing suits against the Municipal Corpora on, alleging negligence in
maintenance. The court found the Municipal Corpora on negligent, ci ng the
collapse as evidence. Applying “res ipsa loquitur,” (things speaks for itself) it
emphasized the Corpora on’s failure, leading to legal consequences and
considera on of compensa on for affected families.
2. Legal damage:
It means an invasion or infringement of private legal right (injuria.) Even if the
plain ff has not suffered any loss, s ll he can succeed if his private legal right is
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violated. Private legal rights are those rights which vests in a person by virtue
of law
Bhim Singh Vs. State of J & K and Ors., 1985
In this case, Shri Bhim Singh, a Member of the Legisla ve Assembly of Jammu
& Kashmir, was arrested and detained in a manner viola ng his cons tu onal
rights. The police obtained remand orders without producing him before the
magistrate. The court observed discrepancies and deliberate ac ons, indica ng
misuse of power. Shri Bhim Singh was not produced before the magistrate on
mul ple occasions, raising concerns about the legality of his deten on. The
court emphasized the need for respect for personal liberty by law enforcement
and concluded that Shri Bhim Singh’s cons tu onal rights were violated.
Although he was no longer in deten on, the court awarded him monetary
compensa on of Rs. 50,000 as exemplary costs for the infringement of his
rights.
3. Legal Remedy :
Tort requires a wrongful act, legal damage, and a legal remedy for a civil ac on.
The absence of any of these elements means no tort has occurred. The Law of
Torts is based on the principle “Ubi Jus Ibi Remedium,” signifying that where
there is a right, there is a remedy – emphasizing the connec on between legal
rights and the availability of legal remedies.
Ashby vs. White, 1703
In this case, the plain ff faced deten on and was prevented from cas ng his
vote, despite being eligible to do so. Interes ngly, the poli cal party he favored
emerged victorious. The court referred to “injuria sine damnum” (damage
without injury), emphasizing that even in the absence of any injury, there was a
viola on of the plain ff’s legal rights. Chief Jus ce Holt stated that if the
plain ff has a right, he must have a means to vindicate & maintain it & a
remedy for its viola on.
CHARACTERSTICS
1. It is a civil wrong:
In civil cases, no direct punishment is imposed on the accused as in criminal
laws. Instead, the person affected ini ates the lawsuit against the alleged
wrongdoer. If the accused is found guilty, compensa on for unliquidated
damages may be awarded later.
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2. Common law ac on:

It is an uncodified law without specific statutes and relies solely on judicial
decisions established by legal precedents.
3. Infringement of right in rem:
There are two types of rights:
1. Right to Rem – Right against the whole world (e.g., defama on or
accidents).
2. Right to Personam – Right against par cular individuals (e.g., in
contracts, par es can only sue each other).
In simple terms, under tort law, one can sue anybody, even if there is no prior
rela onship.
4. Right fixed by law:
Tort arises when any law that is established or declared legal by the legisla on
gets violated.
5. Remedy:
In tort law, the remedy o en involves unliquidated damages. Unliquidated
damages refer to compensa on or monetary awards that are not
predetermined or fixed by a specific amount. Instead, the court determines the
appropriate compensa on based on the circumstances and the extent of harm
suffered by the injured party. The court considers various factors to determine
a fair and just amount of compensa on for the injured party.
LAW OF TORT OR LAW OF TORTS
There are two theories in this regard :
 Is it the Law of Tort, i.e. every wrongful act, for which there is no
jus fica on or excuse to be treated as a tort; (Unity theory of Winfield)
or
 Is it the Law of Torts, consis ng only of a number of specific wrongs
beyond which the liability under this branch of law cannot arise. (Pigeon-
hole theory of Salmond).
Winfield, preferred the first of these alterna ves and according to him it is the
Law of Tort. According to this theory, if I injure my neighbour he can sue me in
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tort whether the wrong happens to have par cular name like assault, ba ery,
deceit, slander, or whether it has no special tle at all; and I shall be liable if I
cannot prove lawful jus fica on. This theory was propounded by Sir Frederick
Pollock in 1987 and was vehemently supported by Winfield.
Salmond, on the other hand, preferred the second alterna ve and for him,
there is no Law of Tort, but there is Law of Torts. The liability under this branch
of law arises only when the wrong is covered by any one or the other
nominated torts. There is no general principle of liability and if the plain ff can
place the wrong in any one of the pigeon-holes, each containing a labelled tort,
he will succeed.
This theory is also known as ‘Pigeon-hole’ theory. If there is no pigeon-hole in
which the plain ff’s case could fit in, the defendant has commi ed no tort.
According to Salmond, “Just as the criminal law consists of a body of rules
establishing specific offences so the law of torts consists of a body of rules
establishing specific injuries. Neither in the one case nor in the other there is
any general principle of liability. Whether I am prosecuted for an alleged
offence or sued for an alleged tort, it is for my adversary to prove that the case
falls within some specific and established rule of liability, and not for me to
defend myself by providing that it is within some specific and established rule
of jus fica on or excuse”.
Because of the difference in approach, Winfield’s book on the subject is
en tled ‘Law of Tort,’ whereas Salmond’s book is en tled ‘Law of Torts’.
Winfield revised his perspec ve on his theory, asser ng that both his and
Salmond’s theories held merit. According to Winfield, the first theory is valid
when considering the broader and historical aspect of tort law, while the
second theory suffices for narrower, prac cal considera ons. In prac cal terms,
focusing on the current state of tort law aligns with the second theory.
However, if one takes a broader view, acknowledging the centuries-long growth
and ongoing evolu on of tort law, the first theory becomes applicable.
It is, thus, a ques on of approach and looking at the things from a certain
angle. Each theory is correct from its own point of view.
Damnum Sine Injuria Meaning
Damnum sine Injuria means damage without legal injury. In essence, it refers to
situa ons where a person or en ty suffers harm or loss, but no viola on of
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their legal rights has occurred. To establish a valid legal claim, it’s generally
necessary to demonstrate both harm (damnum) and the infringement of a legal
right (injuria).
However, in cases of Damnum sine Injuria, even though there may be real harm
or loss, there is no recognised legal injury because no legal rights have been
unlawfully encroached upon. This principle underscores that not all harm
results in a legal remedy, emphasising the importance of dis nguishing
between moral wrongs and legal wrongs.
In legal disputes, the presence of Damnum sine Injuria may prevent a plain ff
from successfully seeking damages or legal redress when their rights have not
been unlawfully violated.
Damage in this context can take various forms, such as financial loss, physical
harm, or damage to one’s well-being.
In law, it’s understood that there are no remedies for moral wrongs unless a
legal right has been violated. Even if a defendant’s ac ons were inten onal, the
court won’t award damages to the plain ff unless a legal right has been
infringed.
For example, in the case of Mayor & Co. of Bradford vs. Pickles (1895), the
Bradford corpora on sued the defendant, claiming that digging a well on the
defendant’s land had reduced the water supply to the corpora on’s well,
causing them financial losses due to insufficient water for the people within
their jurisdic on. However, the court found the defendant not liable because
they hadn’t violated any legal rights of the plain ff and the concept of
Damnum sine Injuria was applied.
Another case, Gloucester Grammar School (1410), involved a schoolmaster
opening a compe ng school, forcing the plain ff to lower their fees. The
plain ff sought compensa on for their losses, but the court ruled that they had
no remedy because, although morally wrong, the defendant’s ac ons hadn’t
violated any legal rights of the plain ff.
In cases of law of torts, where a legal right has been violated, damages are
typically awarded. However, when no legal right has been infringed, the
principle of Damnum sine Injuria applies and there are no available legal
remedies. In essence, if an ac on is carried out lawfully, without negligence
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and in the exercise of a legal right, any resul ng harm is considered harm
without legal injury.
Is Damnum Sine Injuria a Tort?
Damnum sine Injuria is not a tort in and of itself; rather, it is a legal maxim or
concept used in the context of tort law. Tort law encompasses a wide range of
civil wrongs that result in harm or injury to individuals or their property.
The concept of Damnum sine Injuria is a principle within tort law that helps
dis nguish between situa ons where harm or loss has occurred but does not
give rise to a valid tort claim because there has been no viola on of a legal
right.
In essence, Damnum sine Injuria in tort serves as a guiding principle to assess
whether the elements of a tort are present. To succeed in a tort claim, a
plain ff typically needs to establish not only harm (damnum) but also the
infringement of a legal right (injuria).
If the harm suffered by the plain ff is merely incidental and doesn’t involve a
wrongful act that violates their legal rights, then it may be categorised as
Damnum sine Injuria and no valid tort claim arises from it. It helps ensure that
tort claims are based on genuine legal wrongs rather than mere inconveniences
or minor losses.
Damnum sine Injuria Examples
Certainly, here are five examples of situa ons that illustrate the concept of
Damnum sine Injuria, where harm occurs without a corresponding legal injury:
Healthy Compe on: When a new business enters the market and competes
fairly with exis ng businesses, causing them to lose some customers or profits,
it may lead to financial harm. However, as long as the new business doesn’t
engage in unfair prac ces or violate any legal rights, the losses incurred by
exis ng businesses would be considered Damnum sine Injuria.
Price Reduc on: If a store reduces its prices, causing nearby compe tors to
lose customers or revenue, it may be financially damaging to those
compe tors. Yet, as long as the price reduc on is not part of an an -
compe ve strategy or doesn’t involve any unlawful conduct, it falls under
Damnum sine Injuria.
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Employee Mobility: When an employee leaves one company to work for a

compe tor and brings some customers along, the former employer may suffer
financial losses. However, unless the depar ng employee violated a non-
compete agreement or confiden ality clause, this situa on typically cons tutes
Damnum sine Injuria.
Public Construc on Projects: Government projects like road construc on can
cause inconvenience and financial losses to nearby businesses due to reduced
access or noise. Unless there are negligence or contractual viola ons by the
authori es, these losses are generally considered Damnum sine Injuria.
Neighbouring Land Development: If a property owner develops their land in a
way that reduces the scenic view or sunlight for their neighbours, it may
nega vely affect property values. Unless the development violates zoning laws
or property easements, it is o en categorised as Damnum sine Injuria.
Damnum Sine Injuria Case Laws
In the case of Mogul Steamship Co. Ltd. vs. McGregor, Gow & Co., the plain ff
was an independent ship-owner who used to send cargo from China to
England. Four ship-owners, who were the defendants in this case, formed an
associa on and offered special concessions to customers to outdo their
compe tor, the plain ff. As a result of this compe on, the plain ff suffered
financial losses and sued all four defendants for compensa on.
The central legal principle, in this case, is the concept of Damnum Sine Injuria,
which means that if someone exercises their common rights reasonably and
without infringing on another’s legal rights, it does not give rise to a tort ac on
in favour of the other person.
Despite the morally ques onable nature of the defendant’s ac ons, the court
found that they had not violated any legal obliga ons. The case primarily dealt
with the economic tort of conspiracy to harm the plain ff’s rights. The court
held that the combina on of workmen and their agreement was lawful under
common law and might be enforceable among themselves, but it was not
subject to criminal charges.
Both the Court of Appeal and the House of Lords concluded that the
defendants had not engaged in any unlawful ac vi es. The House of Lords
recognised that the defendants had acted to expand their trade and increase
their profits, even though their inten on was to harm the plain ff.
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The majority opinion in the Court of Appeal determined that all the ac ons
taken by the defendants were within the bounds of the law. The plain ff did
not allege any trespass, violence, force, or any act that infringed upon their
legal rights. Therefore, the defendants were merely pursuing fierce compe on
in their own trade and there was no element of illegality in their combina on.
In summary, while the plain ff suffered moral harm due to the defendant’s
ac ons, the court found that there was no legal injury inflicted on the plain ff.
This decision aligns with the general principle of Damnum Sine Injuria, which
states that legal remedies are not awarded for moral wrongs unless legal rights
are violated. Since the plain ff failed to prove any legal injury resul ng from
the defendant’s ac ons, the defendants were not liable for any damages, as
their ac ons were morally wrong but conducted within the boundaries of the
law.
Conclusion
Damnum Sine Injuria is a legal saying that means harm without legal
wrongdoing. It refers to situa ons where there is harm, but no viola on of
someone’s legal rights. When there’s no infringement of legal rights, there’s no
basis for legal ac on.
The principle of Damnum sine Injuria is based on the idea that if someone
exercises their usual rights responsibly and without harming someone else’s
legal rights, it doesn’t lead to a legal claim for the harmed party.

TORTS AND CONTRACTS, TORTS AND CRIMES

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, viola on of these rights amounts to wrong. Wrongs can be
broadly categorised into civil wrongs and crimes. Crime affects the en re
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 par cularly dis nguished like breach of
contract, breach of trust, breach of equitable obliga ons etc. A tort is a civil
wrong which does not fall in the ambit of these specific civil wrongs. The
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remedy for tort is compensa on in the form of unliquidated damages whereas

in breach of contract, compensa on 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 liabili es arise due to
obliga ons imposed by law, the breach of which entails compensa on usually
in the form of liquidated damages.
TORT AND CRIME
Though both terms denote any wrongdoing of a person and can be confusing
at mes, tort and crime are two different concepts in legal terminology.
A tort is a civil wrong where there is a viola on 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 ac on 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 commi ed 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 cons tutes 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
jus ce towards the vic ms 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 gives rise to It is a public wrong which gives rise to criminal
civil proceedings proceedings
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The main remedy in the case of

2. The main remedy in the case of crime is the
torts is compensa on in the form of
punishment of the wrongdoers imposed by the State
unliquidated damages to the vic ms

Tort cases do not require a mo ve 3. Criminal cases require a criminal intent or guilty mind
or criminal intent (mens rea)

Tort law is uncodified 4. Criminal law is codified

Seeks to compensate vic ms for 5. Seeks to provide jus ce to the vic m by punishing the
injuries suffered by culpable ac on offenders and deterring future criminal ac vi es and
or inac on of others behaviour

It is the infringement of the legal

6. It is a viola on of the law embodied in the statutes
rights of individuals

The case is dependent upon the 7. The case has to be proved beyond reasonable doubt
preponderance of probabili es by the prosecu on

The burden of proof is upon the

8. The burden of proof is upon the prosecu on
claimant

Since tort is considered a private

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

10. Criminal cases cannot be se led the wrongdoer and

Tort cases can be se led by the
the vic m between themselves, barring certain excep ons
wrongdoer and aggrieved party
given under Sec on 320 CrPC 1973 (compoundable
between themselves
offence)

However, in some cases, the same set of facts can cons tute both a tort and a
crime. In such cases, remedies are not alterna ve but concurrent. Examples of
some wrongs which are both tort and crime are defama on, assault,
negligence, nuisance etc. The wrongdoer may be required to pay compensa on
under the law of torts, and also be held liable under criminal law. For instance,
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if A digs a ditch in the middle of a public road, causing inconvenience to the

public at large, A has commi ed the crime of public nuisance under Sec on
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 compensa on 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 contraven on of the legal du es imposed by the law, which harms
or violates the legal rights of another person. In the case of a tort, the par es
do not agree to fulfil or abide by any obliga ons, they are bound by law to fulfil
certain du es towards other people. The remedy for a tort is compensa on to
the vic m in the form of unliquidated damages.
On the other hand, a contract is an agreement between par es to perform
mutual obliga ons. The essen als of a contract include free consent and an
inten on to create a legal rela onship between the par es. Du es are not
imposed upon the par es by law, but they are bound by contractual
obliga ons. In case of breach of contract, the party that suffers from the
viola on of such breach is en tled to compensa on 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 with an

1. A contract is an agreement between
act or omission or conduct which causes harm to
par es to fulfil certain mutual obliga ons
another

2. Legal duty is imposed upon

It is a breach of legal duty imposed by the law the par es by the provisions of
contract
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3. Inten on to create a legal

In tort, there is no inten on of the vic m and
rela onship is an essen al of a
wrongdoer to create any legal rela onship
contract

4. Law of contracts and provisions rela ng

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

A tort is a viola on of a right in rem i.e., a right 5. A breach of contract is a viola on of a

vested in some par cular individual and available right in personam i.e., a right available
against the public at large. against some par cular person or party.

The remedy for torts is compensa on in the form of

6. The remedy for breach of contracts is
unliquidated damages, i.e., damages not pre-
in the form of liquidated damages, i.e.,
determined and assessed by the Courts depending
damages already pre-determined by the
on the degree of harm caused to the aggrieved
par es in the contract
party

7. Compensa on can be claimed in the

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

8.In a contract, the duty is based on the

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

However, there are certain cases where the same set of facts can cons tute
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 starva on, 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
plain ff 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.
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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 injunc ons and specific performance.
When a person gains some advantage or gain to which some other individual
was en tled to, or by such advantage, another person suffers an undue loss,
the law may compel the former to compensate the la er in respect of the
advantage so gained.[1] This type of obliga on which arises between two or
more specific par es 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 damages,

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

Under the law of torts, duty is towards the public in 2.Under quasi-contracts, duty is towards a
general specific individual or 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 vic m through compensa on. Tort and contract are
different mainly because in case of breach of contract, compensa on is in the
form of liquidated damages as opposed to torts, and a defaul ng 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.
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CH-2 REMOTENESS OF DAMAGES

Introduc on
 Tort law is an uncodified law and s ll heading towards development in
India.
 The doctrine of remoteness of damages is a fundamental principle in tort
law that determines which consequences of a tor ous act can be
considered legally compensable.
 It serves as a cri cal mechanism to limit the scope of liability and prevent
poten ally infinite legal claims arising from a single wrongful act.
 In tort law, the principle of remoteness of damage serves as a cri cal
filter for claims, ensuring that defendants are only held liable for
damages that are a foreseeable result of their ac ons.
 This doctrine seeks to establish a fair balance between the rights of the
injured party and the responsibili es of the tor easor.
 The concept is rooted in the idea that not all consequences of a wrongful
act are compensable; only those that are directly linked to the act and
are within the realm of reasonable foreseeability can give rise to liability.
Legal Founda ons of Remoteness of Damage
 The doctrine of remoteness of damage is primarily derived from the
landmark case of Overseas Tankship (UK) Ltd v. Morts Dock and
Engineering Co Ltd, Wagon Mound, No.1 (1961), where the Privy
Council established the foreseeability test.
o The court held that a defendant is only liable for damages that are
a foreseeable consequence of their ac ons.
 This principle was further solidified in the case of Baker v. Willoughby
(1970).
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o Where the House of Lords emphasized that the defendant's

liability should be limited to the consequences that were
reasonably foreseeable at the me of the tor ous act.
Test of Remoteness of Damages
 The Foreseeability Test:
o The foreseeability test is a crucial component of the remoteness
doctrine.
o It requires that the harm suffered by the plain ff must be a natural
consequence of the defendant's ac ons and that a reasonable
person in the defendant's posi on could have an cipated such
harm.
o If the damage is deemed too remote or unforeseeable, the
defendant may not be held liable.
 The Directness Test:
o In addi on to the foreseeability test, some jurisdic ons apply the
directness test, which assesses whether there is a direct causal link
between the defendant's ac ons and the plain ff's damages.
o This test focuses on the immediacy of the connec on between the
wrongful act and the resul ng harm.
o If the damage is too far removed from the act, liability may be
denied.

Types of Damages Considered

 Direct Damages:
o Damages that flow naturally from the wrongful act.
o Directly consequen al and reasonably foreseeable.
o Readily compensable.
 Indirect Damages:
o Damages that are less directly connected to the original wrong.
o Require careful examina on of proximity and foreseeability.
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o May be limited or excluded based on remoteness.

Major Case Laws
 Wagon Mound (No. 1) (1961):
o This case involved a ship that spilled oil into a harbor, leading to a
fire that damaged a nearby wharf.
o The court ruled that the damage was not foreseeable, as the risk
of fire was not a natural consequence of the oil spill.
 Baker v. Willoughby (1970):
o In this case, the plain ff was injured in a car accident caused by
the defendant. Later, the plain ff suffered further injuries from a
subsequent incident unrelated to the defendant's ac ons.
o The court held that the defendant was liable for the full extent of
the plain ff's injuries, emphasizing the need to consider the
overall impact of the tor ous act.
 Hughes v. Lord Advocate (1963):
o This case involved a child who was injured a er knocking over a
lamp le by workmen.
o The court found that while the specific manner of injury was not
foreseeable, the type of injury (burns) was within the realm of
foreseeability, thus establishing liability.
Implica ons for Plain ffs and Defendants
 The doctrine of remoteness of damage has significant implica ons for
both plain ffs and defendants in tort ac ons.
 For plain ffs, understanding the limits of recoverable damages is crucial
in formula ng their claims.
 They must demonstrate that the damages suffered are not only a direct
result of the defendant's ac ons but also foreseeable.
 For defendants, the remoteness doctrine serves as a defense
mechanism, allowing them to limit their liability.
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 By establishing that the damages claimed are too remote or

unforeseeable, defendants can poten ally reduce their financial
exposure in tort claims.
Conclusion
The remoteness of damage is a vital principle in tort law that shapes the
landscape of liability and compensa on. By applying the foreseeability and
directness tests, courts strive to ensure that defendants are held accountable
only for the consequences of their ac ons that are reasonably foreseeable.
Understanding this doctrine is essen al for legal prac oners, as it influences
the outcomes of tort claims and the pursuit of jus ce for injured par es. As
tort law con nues to evolve, the principles surrounding remoteness of damage
will remain a cornerstone of legal discourse and prac ce.

CH-3 PIGEON HOLE THEORY AND THE WINFIELD SALMOND DEBATE

The Pigeon Hole Theory was developed by Sir John William Salmond, who
suggested that the law of torts consists of specific, clearly defined categories of
ac onable wrongs. Under this view, if a wrongful act does not fit into one of
these recognized categories, then it does not cons tute a tort, even if the act
may seem unfair or harmful. Essen ally, this theory implies that tort law has a
finite scope, encompassing only recognized types of wrongs.
According to Salmond:
Just as no pigeon can exist without a hole, no tort can exist without an
established cause of ac on.
This metaphor illustrates that torts are not a single, open-ended area of law
but rather a collec on of specific wrongs each represented by its own
"pigeonhole."
Origin And Development
The Pigeon Hole Theory was introduced by Sir John William Salmond in the
early 20th century. Salmond was a prominent jurist and his contribu ons to
tort law have had a las ng impact on legal scholarship. The essence of the
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theory is that every ac onable wrong or tort must fit into one of the
established categories or "pigeon holes." If a par cular harm or injury does not
fall into any of these predefined categories, it cannot be considered a tort.
Key Aspects Of The Pigeon Hole Theory
1. Limited Scope of Torts: The theory emphasizes that torts are limited to
pre-exis ng categories, such as negligence, defama on, trespass,
nuisance, and others. New types of torts cannot simply be created;
instead, an act must fit within one of these established categories to be
considered legally ac onable.
2. Judicial Interpreta on: Courts interpret and apply tort law based on
these recognized categories. Salmond’s theory restricts judicial
discre on, sugges ng that judges cannot create new causes of ac on but
must instead refer to exis ng legal categories to determine liability.
3. The Closed-System Approach: The Pigeon Hole Theory promotes a
closed-system approach, where only recognized wrongs can lead to legal
claims. This contrasts with the "General Principle" theory proposed by Sir
Frederick Pollock, which argues that tort law should cover any wrongful
act that causes harm, regardless of whether it fits within a specific
category.
Arguments In Support Of The Pigeon Hole Theory
1. Legal Certainty: The theory promotes legal certainty by crea ng well-
defined boundaries for torts. This helps individuals and organiza ons
understand which ac ons are poten ally harmful and legally ac onable,
offering a clear sense of their legal du es and rights.
2. Predictability and Consistency: By limi ng torts to specific categories,
the theory promotes predictability and consistency in legal outcomes, as
judges base their decisions on established principles. This can lead to
more uniform and stable applica ons of tort law across cases.
3. Limits Judicial Ac vism: Salmond's approach limits judicial discre on,
ensuring that the judiciary does not arbitrarily expand tort law by
recognizing new categories of ac onable wrongs. It maintains a balance
between legal stability and poten al reform.
Cri cisms Of The Pigeon Hole Theory
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1. Inflexibility: The rigid framework of the Pigeon Hole Theory is cri cized
for being too inflexible in addressing new or unique forms of harm. It
o en fails to account for emerging social and technological issues, which
may create situa ons where vic ms are le without a legal remedy.
2. Limits Evolu on of Tort Law: Cri cs argue that by restric ng tort law to
exis ng categories, the Pigeon Hole Theory prevents the legal system
from evolving with societal changes. This could poten ally result in
unjust outcomes when harmful acts fall outside recognized categories.
3. Incompa bility with Modern Needs: The theory is seen as incompa ble
with contemporary demands for jus ce, par cularly in cases of novel
harms, such as those associated with cybercrimes, environmental
damage, or privacy viola ons, which may not fit neatly into tradi onal
tort categories.
Winfield Theory Of The Law Of Torts
According to the theory of torts, as given by Winfield, there is no division in law
of torts every ac on. In other words, each and every word not only those
which are specified but also those which are included are termed under the
law of torts. Winfield has developed this and compared it with the tree which
has several branches and everything is covered under it.
It is also imagined that society develops at an exponen al rate and the crime is
increasing day by day. A very famous case of Mexico called Schmitz V.
Smentowsk that tort is created as prima facial as a remedy and it is said in the
above-men oned case that all the wrong are tort only if they fall under the
category and qualify the criteria decided for any wrong to fall under the case.
The Prima Facia torts as prescribed by courts are:-
1. The inten on of injuring the plain ff.
2. None availability of jus fica on.
3. Injury to the plain ff
4. Defendant does an inten onal act.
These are also called the general principles of torts. And these are the
condi ons which when qualified, the plain ff can file a prima facia complaint
against any tort being commi ed. There exist no hard and fast rule that every
case get fits under the pigeon hole.
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Prac cal Implica ons Of The Pigeon Hole Theory

 Limi ng Remedies for Plain ffs: If a harmful act does not align with a
recognized tort, vic ms may be le without legal recourse. This
limita on is par cularly challenging in complex cases where harm has
occurred but no established category is applicable.
 Importance of Legisla ve Interven on: In areas where tort law cannot
address new forms of harm, legisla ve interven on is o en required to
create new legal categories or remedies. The reliance on legisla on,
however, can lead to delays and inconsistencies, especially in fast-
evolving fields.
Conclusion
The Pigeon Hole Theory represents a structured, finite view of tort law,
emphasizing legal certainty and predictability but poten ally limi ng flexibility
and innova on in the legal system. While this theory promotes stability, it may
also restrict the ability of tort law to adapt to new and emerging harms.
Balancing Salmond's structured approach with a more open-ended view, as
suggested by Pollock, con nues to be a significant debate in tort law, as courts
strive to address evolving social and technological challenges.

CH-4 JUSTIFICATION IN TORT OR GENERAL DEFENCES AGAINST TORTUOUS

LIABILITY.

INTRODUCTION
When a plain ff brings an ac on against a defendant for a par cular tort
providing exis ng of all essen al of that tort, the defendant would be held
liable for that.
But some privileges are also available for the defendant to defend so they can
escape his liability. These defenses are:-
• Volen non fit injuria
• Inevitable accident
• Plain ff’s default
• Act of god
• Private defence
• Mistake
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• Necessity
• Statutory authority
1) VOLENTI NON FIT INJURIA
To the volunteer, no injury is done – this implies that the complainant has
relinquished their rights, rendering them unable to raise objec ons.
Consequently, an individual who willingly accepts poten al harm is barred from
making complaints, as their consent serves as a robust defense against self-
inflicted harm. This is because harm endured voluntarily does not qualify as a
legal injury. Enforcing a right that one has consciously waived or forsaken is
impermissible.
For example in paragliding, par cipants are required to sign a form indica ng
their consent to assume full responsibility for any poten al harm or injury that
may occur during the ac vity. This document absolves any party from liability
in the event of injury.
Essen als of volen fit injuria-
A. Consent could be express or implied-
In Hall vs. Brooklands Auto Racing Club, the plain ff a ended a motor car race
at Brooklands, conducted on a track owned by the defendant company. A
collision occurred between two cars during the race, leading to one of the cars
being thrown into the spectators and causing injury to the plain ff. The court
determined that the plain ff had implicitly accepted the risk of such injury, as
the danger was inherent in the sport and foreseeable to any spectator.
Consequently, the defendant was not held liable.
In Padmava vs. Dugganaika, while the driver was taking the jeep for filling
petrol in the tank, two strangers took li in the jeep. Suddenly one of the bolts
fixing the right front wheel to the axle gave way toppling the jeep. The two
strangers were thrown out and sustained injuries, and one of them died as a
consequence of the same. It was held that neither the driver nor his master
could be made liable, firstly, because it was a case of sheer accident and,
secondly, the strangers had voluntarily got into the jeep and as such, the
principle of volen non fit injuria was applicable to this case.
B. Consent should not have been given on the basis of a fraud or under any
compulsion–
In R. vs. Williams, the accused was held guilty of rape when he had sexual
intercourse with a minor girl on pretext of an opera on to improve her voice.
In this case, the vic m didn’t consent to rape but she consented for a surgical
24 | P a g e

opera on. This was a case of consent obtained by fraud, which is no consent in
the eyes of law. Hence maxim was held inapplicable.
C. No liability only for the consented act-
There will be no defence present for the consented act but when a person is
incapable of giving his consent because of his insanity or minority, consent of
such person’s parent or guardian is sufficient.
In Laxmi Rajan vs. Malar Hospital Ltd., the plain ff is a married woman, aged 40
years, no ced development of painful lump in her breast. The lump had no
effect on utereus but during surgery, her uterus was removed without any
jus fica on. It was held that the pa ents’s consent for opera on did not imply
her consent to removal of uterus.
D. Scien no fit injuria- mere knowledge of risk is not equal to the consent of
risk.
In Smith vs. Baker, the plain ff was a workman employed by the defendants on
working a drill for the purpose of cu ng a rock. By the help of a crane, stones
were being conveyed from one side to the other, and each me when the
stones were conveyed, the crane passed from over the plain ff’s head. While
he was busy in his work, a stone fell from the crane and injured him. The
employers were negligent in not warning him at the moment of a recurring
danger, although the plain ff had been generally aware of the risk. It was held
by the House of Lords that as there was mere knowledge of risk without the
assump on of it, the maxim volen non fit injuria did not apply, and the
defendants were liable
Excep on to the Volen no fit Injuria
Rescue cases-
The doctrine of assump on of risk does not apply where the plain ff has,
under an exigency caused by the defendant’s wrongful misconduct, consciously
& deliberately faced a risk, even of death, to rescue another from an imminent
danger of personal injury or death, whether the person in danger is one to
whom he owes a duty of protec on or is a mere stranger to whom he owes no
such special duty.
In Haynes vs. Harwood, the defendant’s servant le a two-horse van
una ended in a crowded street. The horses a ached with the van ran away.
The plain ff, a policeman was on duty, not in the street, but in a police sta on.
He saw that a woman and many children were in grave danger of being run
over by these run-away horses. He rushed out of the Police Sta on and
eventually stopped the horses. In doing so he was injured. It being a ‘rescue
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case’, the defence of ‘volen non fit injuria’ was not accepted and the
defendants were held liable.
2) INEVITABLE ACCIDENT
An inevitable accident is one in which no human foresight could have
prevented, an accident which could not have been prevented by the exercise of
reasonable care on the part of the defendant. Inevitable accident, is a defence
in which the burden of proof is on the defendant to show that what happened
was an unforeseeable accident.
In Stanley vs. Powell, a case of trespass to the person, the defendant
successfully pleaded inevitable accident when he accidentally shot the plain ff.
A pellet from his gun, when he was shoo ng pheasants, ricoche ed off a tree
at an unusual angle, and injured the plain ff. It was held that injury was
accidental and defendant was not liable.
In Nitro Glycerine case, the defendant, a firm of carriers, were given a wooden
case for being carried from one place to another. The contents of the box were
not known to the delivery person. Finding some leakage in the box, the
defendants took the box to their office building to examine it. While the box
was being opened, the Nitro-Glycerine in the box exploded and the office
building, belonging to the plain ff, was damaged. It was held that since the
defendants could not reasonably suspect that the box congtained Nitro-
glycerine, they were not liable for any damage caused by the accident.
3) PLAINTIFF’S DEFAULT
As a plain ff giving consent to suffer harm cannot recover, so where he is the
originator of his own wrong or where the injury is caused by his own default it
may be useful for other defences to emerge, that a plain ff cannot profit by his
own wrong, or that he had consented or that it was his contributory
negligence.
‘Ex turpi causa non oritur ac o’ which means from an immoral cause no ac on
arises.
In Bird vs. Haldbrook, the plain ff, a trespasser over the defedant’s land was
en tled to calim compemsa on for injury caused by a sprong gun set by the
defendant without any no ce, in his garden.
4) Act of God
‘Vis Major’ is la n term which means the superior force.
An act of God in common parlance means any act of nature. But in law it
means an unprecedented or extra ordinary act in nature which can not
reasonably be an cipated.
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To avail the benefit of this defence, two important essen als are required to be
proved.
(1) There must be working of natural forces.
(2) The occurrence must be extraordinary and not one which could be
an cipated and reasonably guarded against.
In Nichols vs. Marsland, the defendant created some ar ficial lakes on his land
by damming some natural streams. Once there was an extraordinarily heavy
rainfall, stated to be heaviest in human memory, as a result of which the
embankments of the lakes gave way. The rush of water washed away four
bridges belonging to plain ff. It was held that defendants were not liable as the
loss had occurred due to act of God.
5) PRIVATE DEFENCE
Every man has a right to defend his person or property from unlawful harm
done by another. But the force used in defence must not be out of propor on
to the apparent urgency of the occasion. self-defence does not include the
ac ve asser on of disputed right. The principle of private defence extends to
the killing of another’s animal if that is reasonably necessary in order to save
one’s person or property from ‘real and imminent’ danger.
The Indian Penal Code 1860, in Sec on 96, provides as follows :
Nothing is an offence which is done in the exercise of the right of private
defence. Nobody is bound to suffer harm on his person or property inflicted by
unjus fiable acts of another and therefore he may defend
In the case of Ramanuja Mudali v. M. Gangan, the defendant was found
responsible for injuries caused to the plain ff who crossed their land at night
without no ce. The defendant had installed live wires on their property, and
the court held them liable for the injuries, deeming the use of live wires
unjus fied.
In Collins v. Renison, the plain ff was pushed off a ladder by the defendant
while a emp ng to nail a board on the defendant’s garden wall. Despite the
defendant’s argument that the force applied was gentle, the court, in this case,
ruled that the use of force was not jus fiable as a defense.
6) MISTAKE
Mistake, whether of law or fact is usually no defence and cannot exempt one
from liability in tort. However, mistake of fact does not impose penal liability.
As provided by sec on 79 of the Indian Penal Code, “Nothing is an offences
which is done by any person who is jus fied by law, or who by reason of a
mistake of fact and not by reason of a mistake of law in good faith, believes
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himself to be jus fied by law in doing it.” The maxim ignoran a juris non
excusat needs no explana on, as obviously mistake of law will not excuse.
There are some excep ons when the defendant may be able to avoid his
liability by showing that he acted under an honest but mistaken belief.
In Biharilal Kunjilal vs. Angirabai, where in the holder of decree against X
executed by the same upon the property belonging to X’s wife and wrongfully
got the property a ached, it was held that X’s wife could recover damages
without proving either absence of reasonable or probable cause or malice in
fact.
7) NECESSITY
The defence of necessity may be used where a defendant has inflicted damage
on an innocent Plain ff in order to prevent some greater damage from ensuing.
The defence is based on a La n maxim ‘salus populi suprema lex’- meaning, the
good of the people is the supreme law. One must however remember that
necessity which prompts a person to act must be exis ng, immediate and
overwhelming public necessity.
To avail of this defence the following condi ons must be fulfilled :
(1) There must exist a necessity, that is a state of affairs as compels a person to
act.
(2) It must compel him to act immediately.
(3) He has to make a choice between an individual’s interest and the interest of
society.
(4) The actor must act in good faith, honestly and reasonable.
(5) As is the emergency, so is his la tude for ac on
In Cope vs. Sharpe, the defence has been rejected in case of careless invasion
of another’s interest as when A’s building is pulled down to save C’s building
from fire. The logic is very plain here because no man has a right to protect his
property at the cost of others. He has to be just before he becomes generous.
Necessity can be dis nguished from self-defence. In the former a person
damages another’s interest. The actor here is a wrongdoer, while in the la er
the posi on is different. Necessity is an admixture of charity, public benefit,
self-defence and an emergency.
Necessity can also be differen ated from inevitable accident. In necessity harm
is done inten onally compared to inevitable accident where harm is caused in
spite of all a empt to avoid it.
8) STATUTORY ATHORITY
When a statute empowers the performance of an ac on that would otherwise
28 | P a g e

cons tute a tort, the injured party is limited to seeking redress as specified by
the statute itself. The immunity granted through statutory authority extends
not only to obvious harm but also to harm incidental to the exercise of such
authority. For instance, in the construc on of a railway line, there may be
encroachment on private land. In such cases, legal ac on cannot be pursued
for either the encroachment on land or the accompanying incidental harm,
except to obtain compensa on as outlined in the statute. This alignment is
jus fied by the underlying principle that lesser individual rights must give way
to greater public interest.
In Vaughan vs. Taff Vale Rail Co., sparks from an engine of the respondent’s
railway company set fire to appellant’s wood on adjoining land. It was held that
as respondents were neither negligent nor were doing anything more than
what the statute had authorised them to do, they were not liable.
In the case of Hedge Smith vs. London and South Western Railway Co., the
railway company’s employees negligently le grass trimmings near a railway
line. Subsequently, sparks from an engine ignited the trimmings, and due to
strong winds, the resul ng fire reached the plain ff’s co age located 200 yards
away from the railway line. The co age suffered damage due to the fire, and
the railway company was deemed liable for the incident, given that it resulted
from their negligence.
CONCLUSION
Various defenses such as volen non fit injuria, inevitable accident, plain ff’s
default, act of God, private defense, mistake, necessity, and statutory authority
provide legal safeguards against liability in tort cases. These defenses
acknowledge the need for flexibility in legal standards based on circumstances,
emphasizing the delicate balance between individual rights and public interest
in determining liability.

UNIT-2

CH-1 DOCTRINE OF SOVEREIGN IMMUNITY AND ITS RELEVANCE IN INDIA.

INTRODUCTION
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When a state is exempted from prosecu on in the event any legal wrong is
commi ed by the authority which is primarily derived from the principle that
“A King can do no wrong” relying upon the legal maxim “rex non potest
peccare,” the principle is said to be the “doctrine of sovereign immunity” or can
be referred upon as “crown’s immunity.” There is no explicit jurisprudence
uniformly followed by various jurisdic ons throughout the world to execute the
principle of sovereign immunity through various endeavours that have been
taken to align the approach of enac ng sovereign immunity by broadening the
legisla ons prevalent and at many mes by ordaining new separate legisla on
as that of the United States (US) and the United Kingdom (UK). This blog aims
to enumerate the concept of sovereign immunity, its relevance in today’s legal
jurisprudence and the legal framework in Indian Cons tu on inscribing its
mark of diminishing presence.
The doctrine of sovereign immunity is a vanishing phenomenon in India. Based
on the Common law principle, the doctrine wherein the King commi ng any
wrong cannot be held liable for his acts his own personal misconduct and also
for the negligence occurred by the deeds of his servants has been overlooked
by the Courts when any claim for damages is made by the aggrieved party due
to its increasing irrelevance. The Law Commission of India in its First
Report having considered the doctrine for review has opined for elimina ng
the “immunity” aspect from the Indian Jurisprudence though no such aboli on
had been taken into effect. Sovereign immunity is used to shield the
government from modifying its policies when a ci zen objects to them.
EVOLUTION OF THE PRINCIPLE
In India, the idea of sovereign immunity dates back to the case of P. and O.
Steam Naviga on Company v. Secretary of State for India[1], where terms like
"Sovereign" and "Non-Sovereign" were used to decide whether East India
Company would be held liable for the torts commi ed by its servants. The
Government of India Act, 1858 was brought before the Calcu a Supreme Court
for judicial interpreta on for the first me, and Chief Jus ce Peacock defined
whether it had sovereign or non-sovereign func ons.
The Supreme Court had a dis nct observa on a er the Cons tu on was
enacted in Kasturi Lal v. State of U.P[2]., and the situa on became entangled in
complexity. Supreme Court relies on P.S.O. Steam Naviga on case to dis nguish
between sovereign and non-sovereign state ac vi es and finds in the above
30 | P a g e

case that abuse of police power cons tutes a sovereign act with immunity for
the government.
Subsequently, the Supreme Court has created a new remedy in the writ
pe ons filed under Ar cle 32 and Ar cle 226 of the Cons tu on, to protect
people's rights from abuse of state power thus nullifying the influence of
sovereign immunity in the case of Rudal Shah v. State of Bihar[3], the Supreme
Court awarded damages in a writ pe on for the first me.
The recent case of State of A.P. v. Challa Ramakrishna Reddy also shows that
the dis nc on between sovereign and non-sovereign authori es is no longer
relevant with the Supreme Court ruling that sovereign immunity was no longer
valid.
AN ELUCIDATION
The types of immunity which usually the states enjoy due to its sovereignty i.e
supreme authority which is free from any external power is immunity from
execu on and immunity due to jurisdic on.
In immunity to jurisdic on, if any state commits any wrong beyond its
territorial jurisdic on implying if any India commits any wrong outside India in
any country; any state commi ng such a wrong would be free from being tried
in that states’ court where the crime was commi ed due to the immunity that
is India cannot be held liable for the wrongs commi ed in any other country in
that jurisdic on.
In immunity from execu on, when any en ty, person of one state is held liable
for their acts in another state and a verdict is passed to be enforced against
that par cular en ty or person, then, in that case, the state is conferred upon
immunity from enforcement of such a verdict. This generally arises when any
judgement is given to seize any assets of the party to the dispute of another
state due to viola on of the principle of natural jus ce by the ruling authority
of the other state due to their courts' decision to seize the relevant property of
the person or en ty of another state.
Several court cases have led to the conclusion that sovereign immunity can be
subjected to reasonable restric on in India. Likewise, a state would not have
immunity in tenancy disputes was reiterated in the case of Syrian Arab Republic
v AK Jagodia[4]. Moreover, when economic or contractual ac vi es involve
31 | P a g e

wrongdoing essen ally if any wrong is commi ed under commercial

transac ons, states are not protected.
LEGISLATIVE FRAMEWORK GOVERNING SOVEREIGN IMMUNITY
Ar cle 300 of the Cons tu on of India[5]
Ar cle 300 Indian Cons tu on deals with the liability of the Union and the
State in connec on with all the ac ons undertaken by the Government. Ar cle
300 of the Cons tu on is derived from sec on 176 of the Government of India
Act, 1935 that rendered the liability coextensive with that of the Secretary of
State for India.[6]
Civil Procedure Code, 1908[7]
Sec on 86 of the Civil Procedure Code (C.P.C) deals with foreign state
immunity, which s pulates that foreign states may not be sued without the
prior consent of the central government. In certain cases, the government may
provide consent, but this is determined by the specific facts of the par cular
case. The approval can be granted in the instances where the foreign state or
country[8]:
i. has waived expressly or impliedly the privilege conferred upon by sec on 86
of C.P.C; or
ii. the court ac on commenced against the person seeking to sue it; or
iii. a trade of one kind or another falls within the jurisdic on of the Court; or
iv. is in possession of immovable property located within those limits, and is to
sue in
rela on to that property for any debts a ached to it
With cross-border li ga on and alterna ve dispute resolu on expanding, this
sec on does not reflect current developments in interna onal law, which have
been evolving since this provision was first dra ed. Courts have interpreted this
clause to have only limited relevance, claiming that the difficulty can be
addressed in specific cases and scenarios.
Vienna Conven on on Diploma c Rela ons Act of 1972
States and individuals serving on missions or as ambassadors in other countries
are granted diploma c immunity under the aforesaid Conven on. India
observes certain provisions of this conven on, which grant the ambassadors'
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or diplomats' family members, servants, and staff members the sovereign

immunity.
2004 UN Conven on on State Immunity
India has signed the UN Conven on on Jurisdic onal Immuni es on Jan 12,
2007, but it has not yet come into force, thus simply signing the conven on
cannot be construed as an official posi on of India and this issue is further to
be contemplated.
RECENT DEVELOPMENTS
The status of sovereign immunity being waived from the enforcement of
commercial contracts has been reaffirmed by the Delhi High Court in the case
of KLA Const Tech v. Afghanistan Embassy. In this case, as part of the contract,
KLA Const Technologies ("claimant") and the Embassy of the Islamic Republic of
Afghanistan in India ("respondent") agreed to arbitrate any disputes. Due to a
pending dispute, the Sole Arbitrator granted the claimant an ex parte award.
Accordingly, the claimant seeks enforcement in India according to Sec on 36(1)
of the Arbitra on & Concilia on Act 1996.
As to state immunity, the claimant contends that entering into an arbitra on
agreement is a "waiver of sovereign immunity." In addi on, the claimant
argued that Ar cles 10 and 19 of the United Na ons Conven on on the
Immuni es of States and Their Property explicitly prohibit foreign states from
asser ng sovereign immunity against post-judgment measures such as
a achment against the state's property in interna onal commercial arbitra on.
The Delhi High Court a er deliberate conten ons held that[9];
i. An arbitral award rendered against it cannot be blocked by a foreign state's
claim of sovereign immunity under a commercial contract.
ii. The consent to arbitrate is sufficient to waive immunity, and it is not
necessary to obtain addi onal consent for enforcement. The Delhi High Court
stated that this decision is "in line with the evolving norm of restricted
immunity under interna onal law."
Since it is one of the first a empts to define immunity from 'enforcement,' this
case is significant in the development of Indian sovereign immunity
jurisprudence.
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In a recent case (Sanjaya Bahel v Union of India), the High Court of Delhi also
confirmed that interna onal organiza ons are en tled to absolute immunity
within India. Though the abovemen oned judgement immunes mul tude of
interna onal organiza ons from the suit, there always arises a conundrum of
the level of immunity granted as it can only be stated that there is no absolute
immunity granted to the interna onal organiza ons and it is subjected to the
exis ng law of foreign sovereign immunity.
CONCLUSION
Though tradi onally the doctrine of sovereign immunity prevailed due to the
monarchial power of the king, with the emana ng and established concept of
democracy it is a preroga ve to annihilate this outdated principle due to the
diminishing nature rather than bringing it under the purview of limita on and
reasonable restric on. With the concept of sovereign immunity applied
majorly in the cases of tort liability of the state, abolishment should not imply
that accountability of the State is to be demanded in the cases where the
powers of the state are u lized in an official capacity. Furthermore, the case of
KLA Const Technologies has widened the aspect of diploma c immunity in
contrast to sovereign immunity and its relevance in the current scenario with
increased reliance placed upon arbitra on in cross-border disputes.

CH-2 TORTIOUS LIABILITY OF GOVERNMENT

Introduc on
Tor ous liability of the administra on is dealt in Ar cle 300 of the Indian
Cons tu on. An overview of Ar cle 300 provides that first part of the Ar cle
relates to the way in which suits and proceedings by or against Government
may be ins tuted. It enacts that a State may sue and be sued by the name of
the Union of India a State may sue and be sued by the name of the State.
The Second part provides, inter alia, that the Union of India or a State may sue
or be sued if rela on to its affairs in cases on the same line as that of Dominion
of India or a corresponding Indian State as the case may be, might have sued or
been sued of the Cons tu on had not been enacted. The Third part provides
that it would be competent to the Parliament or the legislature of State to
make appropriate provisions in regard to the topic covered by Ar cle 300(1).
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How Ar cle 300 of the India Cons tu on deals with the Tor ous Liability Of
The State
Ar cle 300 of India Cons tu on :
(1) The Government of India may sue or be sued by the name of the Union of
India and the Government of a State may sue or be sued by the name of the
State any may, subject to any provision which may be made by Act of
Parliament or of the Legislature of such State enacted by virtue of powers
conferred by this Cons tu on, sue or be sued in rela on to their respec ve
affairs in the like cases as the Dominion of India and the corresponding
provinces or the corresponding Indian States might have sued or been sued if
this Cons tu on had not been enacted.
(2) If at the commencement of this Cons tu on any legal proceedings are
pending to which the Dominion of India is party, the Union of India shall be
deemed to be subs tute for the Dominion in those proceedings.
Any legal proceedings are pending to which a Province or an Indian State is a
party, the corresponding State shall be deemed to be subs tuted for the
province or the Indian State in those proceedings.
Important Case Laws dealing with the Tor ous Liability of the State
The first case, which seriously discussed the ques on of Sovereign Immunity, is
the Pand O Naviga on Company V. Secretary of State for India , in this case a
piece of iron funnel carried by some workmen for conduc ng repairs of
Government steamer hit the plain ff horse-driven carriage and got injured. The
Plain ffs sued for damage. The plain ff filed a suit against the Secretary of
State for India- in council for the negligence of the servants employed by the
Government of India. The Supreme Court delivered a very learned judgment
through the Chief Jus ce. The Supreme Court at Calcu a, CJ held that “the
Government will be liable for the ac ons done by its servants while doing non-
sovereign func ons but it won’t be liable for injuries caused while pursuing
sovereign func ons.
Similarly in Nobin Chunder Dey V. Secretary of State , the Calcu a High Court
gave full effect to the remarks in rejec ng the plain ff’s plea for damage
against wrongful refusal to him of a license to sell certain excisable liquors and
drugs resul ng in the closure of his business on the ground that grant or refusal
of a license was a sovereign func on lying beyond the reach of the tortuous
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liability of the State. Since then, the dis nc on between the sovereign and
non-sovereign func ons of the State has been the basis of a number of judicial
pronouncements.
Other Provisions dealing with the Tor ous Liability of the Administra on
 Under Ar cle 294 (4) of the cons tu on, the liability of Union
Government or a state Government may arise ‘out of any contract or
otherwise. The word otherwise suggests that the said liability may arise
in respects of tortuous acts also. Under ar cle 300 (1), the extent of such
liability is fixed. It provides that the liability of the Union of India or State
Government will be same as that of Dominion of India and the Provision
before the commencement of the Cons tu on.
 The English law with regard to immunity of the Government for tortuous
acts of its servants is partly accepted in India. The High Court observed:
as a general rule this is true, for it is an a ribute of sovereignty and
universal law that a state cannot be used in its own courts without its
consent.’ Thus a dis nc on is sought to be made between ‘sovereign
func ons’ and ‘non-sovereign func ons’ of the state. The State is not
liable in tort.
 Under sec on 80 of the Code of Civil Procedure, 1908, no suit can be
ins tuted against the government un l the expira on of two months
a er a no ce in wri ng has been given.
 Under sec on 82 of the Code of Civil Procedure, 1908, when a decree is
passed against the Union of India or a State, it shall not be executed
unless it remains unsa sfied for a period of three months from the date
of such decree.
 Under ar cle 112 of the Limita on Act, 1963, any suit by or on behalf of
the Central Government or any State Government can be ins tuted
within the period of 30 years.

CH-3 VICARIOUS LIABILITY: MASTER AND SERVENT, PRINCIPAL AND AGENT,

PARTNERS INTER SE.

Introduc on
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Generally, anyone is liable for his wrongful acts, but in vicarious liability, one
person will be hold accountable the act done by another person may arise like
A is responsible for the unlawful act done by, but there should be a rela on
between A and B and should do wrongful act be done in a certain way, connect
with this rela onship. Like master-servant, principal-agent.
What is Vicarious Liability?
Vicarious liability is that liability under this a person held liable for the act
done by another person. S ll, both of them are in a rela onship, and the deed
done during the employment. E.g. A is a waiter who works under B, and during
the occupa on, he has thrown the plate on the face of the customer, and the
customer got injur. However, A and B’s tort has been commi ed, but B will also
be liable because A and B were in a master-servant rela onship.
Rela ons in which Vicarious Liability arises
These are the significant rela onship in which vicarious liability arises.
1. Master and Servant.
2. Partners in a Partnership Firm.
3. Principal and Agent.
4. Company and its Directors.
5. Owner and Independent Contractor.
Vicarious Liability of Master for torts by Servant
In a master-servant rela onship, the Master is the employer and the Servant is
an employee. A servant works on the command given by his Master. Then
par cular rela on exists between them and in this situa on, torts commit by
Servant then Master will also be held liable.
There are so many cases where Servant does the act on behalf of his Master,
and as per law, it is deem that Master is doing ac on himself, so if Servant
commits any tort then Master will also be held liable.
There are two maxims on which the liability of Master is based.
 Qui facit per alium facit per se: It means that “the act of servant is the
act of master.”
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Example: If A is the car owner and he keep B to drive the car for trade if any
accident happens by B, A will be liable for that accident.
 Respondent Superior: It means that the superior should be held
responsible for the acts done by his subordinate.
The above two maxims have played a significant role in the development of the
vicarious liability of Master.
Essen als of Vicarious liability in Master-Servant Rela onship
 The Servant has done an act which is the amount to a tort
 The tor ous act has been commit by the Servant during his employment
under the Master.
Reasons For the liability of the Master
There are so many reasons behind this, why the Master is liable for an act
doing by his Servant.
1. An act done commit by the Servant is consider to be execute by his
Master. Therefore in the law of torts, it is assume that if any tor ous
ac vity is doing by Servant then itself Master will be liable for the wrong.
2. The Master is in be er financial condi on as compare to Servant, and
thus in any loss cause by the act doing by Servant, the Master is be er
suite to off the damages. When the Master is hold liable, the Master will
take proper care and precau on to avoid the liability.
3. When a servant does any act, then Master is taking benefits then if any
tor ous ac vity commit by the Servant, then Master will be liable for the
loss occurred.
Test for Determining Master-Servant Rela onship
There are specific test has been develop to test the rela onship of Master-
Servant.
 Tradi onal View-Control Test
As per this test, for the defini on of a Master- servant rela onship, it could see
whether the Master has the only power over the instructor the way of doing
the act as well and if such power exists then as per this test, the master and
servant rela onship exists between the two.
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 Modern View
The tradi onal test was not applicable in every situa on. Like any doctor
working in a hospital, the hospital owner cannot instruct the doctor on which
process will be efficient and how to do it. Then the new test has been develop
for determining the Master-Servant rela onship.
Mul ple Test
This test provides that people who are in a contract of service are deem to be
employees whereas all the people in contracts are individual contractors. In
this case Ready Mixed Concrete v Minister of Pensions and Na onal
Insurance[1], three condi ons have been laid down for the contract of service.
1. The Servant is ready to provide his services to the Master in exchange for
wages or another considera on.
2. He agrees to be subject to such a degree of control so as to make the
person his master in the performance of his work.
3. The other provisions of the contract are consistent with this provision of
being a contract of service.
This view has also explained in the case of The Management of Indian Bank
v.The Presiding Officer[2]
This test also considers other essen al points use to determine the master-
servant rela onship, such as who owns the tools being use for the work, the
employee paid wages monthly or daily, and all other relevant factors.
Difference between Servant and Independent Contractor
A servant and independent contractor both works for his Master and what shall
be done not decided by them, but there is a difference between them. In
contrast, in the Servant’s case, the Master is liable for the tor ous act, but in an
independent contractor, the Master cannot be held responsible.
In the Servant’s case, the Master will give all the instruc on to perform the act
with the process, but the independent contractor master will guide what ac on
should be completed but will not define strategy.
Various ways in which liability of Master arises
Wrong done as a natural consequence of an act by a Servant for Master with
due care.
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If an employee has done the work as per the instruc on given by his Master
with proper care, then if any damage will occur then, the Master will be held
liable.
Gregory v. Piper,[3] the defendant and plain ff were some disagreement
between them and the defendant, ordered his Servant to place rubbish around
a pathway to stop the plain ff from crossing on the way. The Servant has done
the act with proper care, so, that no part of it will go to touch the plain ff’s
property but a er some me, the rubbish slid broken down and started feeling
the plain ff’s property, and then he sued for trespass. The defendant or Master
of the Servant was hold liable despite his Servant taking all due care.
Wrong due to Negligence of Worker
A master is also held liable for any act commit by Servant negligently or not
taken proper care of.
In Pushpabai Pursho am Udeshi & Ors. v. Ranjit Ginning & Pressing Co.
(P)[4] The deceased was travelling by a car driven by the respondent
company’s manager, and it met with an accident, and he lost his life. The
dependents of the deceased filed a suit, and the tribunal accepted damages.
S ll, the High Court held that the accident’s grounds do not make the
respondent company liable for the damages. But the Supreme Court say in his
judgement and overrule the decision of the High Court and held that from the
grounds of this case it was clear that the accident had occurr only due to the
negligence and careless behaviour of the manager who was driving the car
during his employment and therefore, the respondent company or we can say
Master was held liable for his negligent act commi ed by the manager.
Wrong by excess or mistaken execu on of a lawful authority
1. The Servant had inten onally done an act on behalf of his Master,
which he was suppose to do.
2. The act would be lawful if it complete it in those circumstances which
the Servant mistakenly believed were real or if the ac on would have
been legal if done correctly.
In Bayley v Manchester S&L Railway[5] (1873) L.R. 8 CP 148, an employee of a
railway company mistakenly believe that the plain ff was in the wrong carriage
even though he was in the right one. The porter thus pulled the plain ff due to
which the plain ff sustained injuries. Here, the Court held the railway company
40 | P a g e

vicariously liable for the ac ons of the porter because did it in the course of his
employment and this act would have been proper if the plain ff was indeed in
the wrong carriage
A wrong commi ed wilfully by a servant to serve the purpose of the Master.
If a servant has done ant act wilfully wrong or recklessly, then the Master will
be held liable if those act has been commi ed during employment.
In Limpus v. London General Omnibus Co. [6]The defendant company’s driver,
wilfully done against the express orders not to get involve in racing or obstruct
other omnibuses, had drive to impeding the plain ff’s bus. In this case, the
Court held that the defendant company was liable for the tor ous act of the
driver because the driver’s act of driving the omnibus was within
approximately the course of employment.
In Peterson v. Royal Oak Hotel Ltd.[7] (1948) N.Z.I.R. 136, the plain ff was a
customer who has refused to take further intoxicated drink by the barman;
who was employee under the respondent, and then the plain ff threw a glass
at him. The barman took a piece of the broken glass. He threw back on the
plain ff, an nd that piece of glass hit his eyes. It. The responden hotel was held
liable because the barman was under the responden in the master-servant
rela onship.
Wrong by Servant’s Fraudulent Act
If any fraudulent ac vity was done by the Servant then also Master will be held
liable.
In Lloyd v. Grace Smith & Co.[8] , the plain ff was a widow who owned 1000
pounds as dues on a mortgage and a co age. She went to the defendant
manager; which was a firm of solicitors, and she ask for his advice to get richer.
The manager told her to sell her co age and to call up the amount of
mortgage. She authorized the manager to sell the property and collect her
money, but he absconded with the money. Thus, she sued the defendant’s
company. It held that the defendant was liable for the manager’s fraudulent act
because even a fraudulent act is not authorize; the manager was allow to take
her signature. Thus it was within the course of employment.
Conclusion
Under Vicarious Liability, a person can be held liable for an act commit by
another person if that person in a Master-Servant rela on. The Servant does
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the ac on on behalf of his Master, and therefore the law of torts provides that
any wrongful act done in the course of employment by the Servant is bound to
make the Master liable for it. There have been so many tests for determining
the rela on of Master and Servant. The Court also applies in its decision
according to the case’s facts to define that rela onship.

CH-4 STRICT LIABILITY AND ABSOLUTE LIABILITY

Every person has certain legal rights, and it is the duty of other persons to
respect them. Fault-based liability means the defendant violates the plain ff’s
rights. In No-Fault liability, the defendant is held liable to pay compensa on
even though he was not at fault. No fault liability is categorised into two parts:
1. Strict liability and 2. Absolute Liability. In this ar cle, we will discuss strict
and absolute liability in detail.
Strict liability
The concept of strict liability evolved from the case of Rylands v. Fletcher
(1868). What actually a strict liability means is that anyone who retains
dangerous chemicals on their property is accountable for any errors made if
those substances somehow escape and cause harm. If there was no negligence
on the part of the person retaining it, this rule is valid, and the burden of proof
is always on the defendant to show why he is not guilty.
Rylands v. Fletcher
Two men were living adjacent to each other, i.e., Rylands and Fletcher. Fletcher
had a mill which required energy resources for which there was a need to
construct a reservoir. He hired some independent contractors and engineers
for the construc on. Ryland owned certain mine sha s which the contractors
didn’t observe. Because of this, the water reached mines and destroyed
Ryland’s land, for which he suffered losses and sued for same.
Issue: Can the defendant be held responsible for another party's ac on that
causes an en ty to leave his property without his knowledge or consent?
The defendant asserted that it was the contractor’s fault rather than his own.
He could not accept that he was responsible for the harm, even though he did
not know what caused it.
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Judgment: The House of Lords held that Fletcher would be liable to

compensate Rylands for all the damage caused to him.
Following the precedent set by this case, even if a person did not act
negligently when retaining a dangerous object on his property, he will be held
prima facie liable for any harm caused by that object's escape. A person is
liable not because of their fault or negligence but because they kept a
dangerous object on their property, which then escaped and caused damage.
The strict liability rule refers to the situa on where liability arises even in the
absence of fault on the defendant’s part.
Based on this principle, certain essen als have been created that help to
decide whether liability is strict.
1. Someone must have brought something hazardous into their property.
2. There must be Non-natural use of land.
3. The hazardous item that was brought must escape and cause damage.
Excep ons of strict liability
1. Plain ff’s own fault- Pon ng vs Noakes would be a perfect example. In this
instance, the plain ff's horse entered the defendant's property, ate some wild
tree leaves, and passed away. The damage would not have been caused if the
plain ff's horse had not trespassed on the defendant's property. Hence, the
defendant was not held accountable. As there was no way out, the strict
responsibility rule would not be applicable.
2. Act of God- Whatever natural occurrence that is unpredictable,
uncontrollable, or unavoidable is not to be held responsible for any damage it
does. In Nicholas v. Marsland, 1876, the plain ff's four bridges were destroyed
when the defendant's ar ficial lake flooded due to heavy rains. To obtain the
damages, the plain ff filed a lawsuit. It was decided that the defendant was
not responsible since an act of God caused the accident.
3. Volen non-fit injuria/ mutual benefit- If two people introduce something
ar ficial for their mutual advantage and it causes damage, neither of them may
sue the other for compensa on.
4. Act of stranger- The defendant will not be held accountable by this rule if
any harm was brought by a third party over whom the defendant had no
influence.
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5. Statutory authority- A defence to a tort claim is an act performed under the

authority of a statute.
Absolute liability
In the case of M.C. Mehta v. Union of India, the doctrine of absolute liability
was developed. This case was a significant turning point in Indian legal history
by establishing a new rule. The rule stated that an enterprise is strictly liable to
compensate all those harmed by an accident when the enterprise is engaged in
a hazardous or inherently dangerous ac vity and harm results to anyone as a
result of an accident in the opera on of such hazardous or inherently
dangerous ac vity.
M.C. Mehta v. UOI- A company owned by Union Carbide was established in
Bhopal. The factory produced pes cides and similar goods. 40 tonnes of
hazardous gas were released by the plant overnight on December 2nd, 1984.
(methyl isocyanate). The surrounding region of the facility turned into a gas
chamber, resul ng in 3000 fatali es and numerous injuries. All of the plant's
safety systems were determined to be broken throughout the examina on. The
Supreme Court decided against adhering to the strict liability rule because
doing so would let these industries off the hook for the harm they inflicted and
the lives they lost.
The rule stated clearly that when an enterprise engages in a risky or inherently
dangerous ac vity and harm is caused to anyone as a result of an accident
while carrying out such a risky or inherently dangerous ac vity, the enterprise
is strictly and absolutely liable to compensate all par es affected by accident
and such liability is not subject to any of the excep ons that apply to the
tor ous principle of strict liability.
ABSOLUTE LIABILITY= STRICT LIABILITY - EXCEPTIONS
Essen als of absolute liability
1. Hazardous Substance - The accountability for a substance escaping from
someone's land will only become apparent if the substance is hazardous or
dangerous under the exis ng criteria. The substance must be hazardous
because it is damaging, hur ul, and poten ally destruc ve.
2. Escape - It must be proven that something that caused hurt or damage
escaped the defendant's property or property under their control to hold them
accountable. In other words, the dangerous material must escape to endanger
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a vic m and establish absolute culpability. However, escape inside the building
might also be considered complete culpability.
3. Non-natural use of land - The facts of the case make it obvious. Water
storage for residen al use can be natural, while large-scale water storage in
reservoirs can be unnatural. Growing trees or plants on land might be natural;
cul va ng toxic plants can be unnatural.
4. Mischief - To hold the offender accountable, the plain ff must demonstrate
that any hazardous chemical has escaped and resulted in damages.
Difference between Strict liability and Absolute Liability
Basis of Difference Absolute Liability Strict Liability

Level of Damage Mass Damage Limited damage

Many Defences (Volen fit

Defence No Defence injuria. Act of god,
plain ff’s own default)

Act of the third party, an

Excep ons No excep on
act of god etc..

It depends on the Compensa on is paid

Degree of Damage capability of the according to the nature
company. and quantum of damage

Element of Escape Not necessary Necessary

Conclusion
Absolute and strict liability are two related but dis nct concepts within the
same body of law, the Law of Torts. Strict Liability is narrower than an absolute
liability. Both systems of law are founded on no-fault liability. S ll, strict liability
has several excep ons, and if a case falls under one of those excep ons, the
defendant is not held accountable for the act. Absolute liability is a situa on in
which the defendant must pay damages and is not permi ed to raise defences.
Because of India’s industrialised economy and style, this liability is more well-
known there. Even though it is in England, it needs to be adequately described
there.
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UNIT-3

CH-1 ASSAULT, BATTERY, FALSE IMPRISONMENT.

INTRODUCTION TO TRESPASS TO PERSON

Trespass to a person is a commonly occurring tort in everyday life, involving
unjus fied interference with an individual’s body, either through actual harm
or the crea on of an apprehension of force.
The evolu on of the tort of trespass to a person can be traced back to early
English law, where physical interference received special protec on to prevent
individuals from resor ng to revenge a acks. Un l the 19th century, direct
a acks on a person were safeguarded by the ac on of trespass, which didn’t
require proof of damage. On the other hand, indirect interference was covered
by the ac on on the case, necessita ng proof of damage.
In contemporary legal terms, inten onal and direct acts of interference s ll fall
under the tort of trespass, while uninten onal and indirect acts are addressed
through the tort of negligence. Despite this general dis nc on, the legal
landscape is nuanced, and some authori es propose that even in trespass
cases, claimants may need to establish inten on or negligence in addi on to
the act of interference.
This complexity raises the no on of negligent trespass, which might seem
contradictory but reflects the intricate legal considera ons surrounding these
ma ers.
DEFINITION
Interference, however slight with a person’s elementary civil right to security of
person, and self-determina on in rela on to his own body, cons tutes trespass
to person. Trespass may be done inten onally, deliberately or negligently. The
fundamental principle plain and incontestable law is that every person’s body is
inviolate.
1.Assault – Assault is an act of the defendant which causes to the
plain ff reasonable apprehension of the inflic on of a ba ery on him
by the defendant.
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2.Ba ery– The wrong of ba ery consists in inten onal applica on of

force to another person without lawful jus fica on.
3.False Imprisonment– False Imprisonment consists in the imposi on of a
total restraint for some period, however short, upon the liberty of another,
without sufficient lawful jus fica on.
ASSAULT
Assault is nothing, just an apprehension to the inflic on of ba ery or it is an act
prior to ba ery.
When the defendant by his act creates an apprehension in the mind of plain ff
that he is going to commit ba ery against the plain ff, the wrong of assault is
completed. Poin ng a loaded pistol t another is an assault. Is the pistol is not
loaded, and then even it may be an assault, if pointed at such a distance that, if
loaded, it may cause injury. If the plain ff knows that the pistol is unloaded,
there is no assault.
There should be prima facie ability to do the harm. E.g. A person moving from
a train can’t be assaulted by a person standing on pla orm. Similarly mere
verbal threat is no assault unless it creates reasonable apprehension in the
plain ff’s mind that immediate force will also be used. If a man put his hand
upon sword and said: “if it were not assizes, I would not take such languages
from you”, there was no assault. (Tuberville v. Savdge, (1699) 1 Mod 3 : 2 Keble
545; 86 E.R. 684)
In Bavise Venkata Surya Rao V. Nandipa Muthayya
The plain ff was an agriculturist , was in arrears of land revenue amoun ng to
Rs. 11.60. The village munsif went to the plain ff’s residence for the collec on
of the same. The plain ff was unable to pay the amount on that day as his wife
had locked the house and gone out for a few days. As it was the last day of the
year for the collec on of money so the defendant insisted to pay the amount.
Plain ff was told due to failure of paying the money, his movable property will
be distrained. Since the plain ff’s house was locked and no other movables
were readily available, the defendant told him that the earrings which the
plain ff was wearing would be distrained. The village goldsmith was called.
On the arrival of the goldsmith, one of the persons present there, paid off
the amount due from the plain ff by borrowing the same from another
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person. The defendant then went away quietly. The plain ff sued the village
munsif alleging that apart from other wrongs, the defendant had commi ed
assault. It was held that since the defendant, a er the arrival of the
goldsmith, said nothing and did nothing and the threat of use of force by
the goldsmith to the plain ff was too remote a possibility to have put the
plain ff in fear of immediate or instant violence, there was no assault.
In Stephens v. Myers
The plain ff was the chairman at a parish mee ng, the defendant also sat at
the same table but there were six or seven person between him the plain ff. In
the course of some angry discussion, the defendant had been vociferous and
he interrupted the proceedings of the mee ng. A very large majority decided
that the defendant be expelled from the mee ng. The defendant then
advanced towards the Chairman with a clenched fist saying
that he would rather pull the Chairman out of the chair than be turned out of
the room, but was stopped by the churchwarden, who sat next but one to the
Chairman. He was held liable for assault.
BATTERY
The wrong of ba ery consists in inten onal applica on of force to another
person without any lawful jus fica on. Its essen als are:-
1. There should be use of force
2. Use of force should be without lawful jus fica on
Use of Force
The wrong is cons tuted even though the force used is very trivial and does
not cause any harm. Physical hurt is very important for ba ery. Least touching
of another in anger is a ba ery. Use of a s ck, bullet or any other missile or
throwing of water or spi ng in a man’s face or making a person fall by pulling
his chair are examples of use of force. Inflic on of heat, light, electricity, gas,
odour, etc. would be a ba ery if it can result in physical injury or personal
discomfort.
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In Innes v. Wylie a policeman unlawfully prevented the plain ff from entering in

the club premises. It was held that “if the, policeman was en rely passive like a
door or a wall put to prevent from entering the room,” there was no assault.
Without Lawful Jus fica on
Use of force should be inten onal and without any lawful jus fica on. If two or
more persons meet in a narrow passage and without any violence or design of
harm, the one touches the other gently, it will be no ba ery. But if either of
them uses violence against the other, to force his way in a rude or inordinate
manner, it will be a ba ery. Voluntarily suffered harm does not amount to
ba ery. Use of force may also be jus fied in pulling a drowning man out of
water, forcibly feeding a hunger-striking prisoner to save his life (Liegh v.
Gladstone)
In Stanley v. Powell, Powell a member of shoo ng party, fired at a pheasant but
the pallet from his gun glanced off a tree and accidently wounded stanely who
was the another member of the party. It was held that Powell was not liable. If
the act is wilful or negligent, the defendant would be liable.
In Pratap Daji v B.B. & C.I. Ry, the plain ff entered a carriage on the defendant’s
railway but by oversight failed to purchase a cket for his travel. At an
intermediate sta on, he asked for a cket but the same was refused. At
another place, he was asked to get out of the carriage since he did not have a
cket. On his refusal to get out, force was used to make him get out of the
carriage. In an ac on by him for his forcible removal, it was held that the use of
the force was jus fied as he, being without a cket, was a trespasser. The
defendants were, therefore, not liable.
In P. Kader v. K.A. Alagarswami, In Madras High Court held that pu ng
handcuffs on an undertrial prisoner and then chaining him like a dangerous
animal with a neighbouring window in a hospital during his medical treatment
is an unjus fiable use of force and the police officer responsible for the same is
liable for trespass to the person. It was also observed that in such a case, there
is no need to prove any mo ve or inten on on the part of the police officer,
because if the officer has exceeded and abused his authority, it may be out of
arrogance or even because of a temperamental defect which delights in cruelty,
the act would be malicious and mala fide unless it can plausibly be contended,
that the circumstances jus fied the use of the power.
4 . FALSE IMPRISONMENT
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It consists in the imposi on of a total restraint for some period, however short,
upon the liberty of another, without sufficient lawful jus fica on. When a
person deprived of his personal liberty, whether by being confined within the
four walls or by being prevented from leaving the place where he is, it is false
imprisonment If a man is restrained, by a threat of force, from leaving his own
house or an open field, there is false imprisonment.
The essen als are required:-
1. There should be total restrained on the liberty of a person
2. It should be without any lawful jus fica on
Total Restrained
Whether the restrained is total or par al, the same is ac onable. When the
restrained is total and a person is prevented from going out of certain
circumscribed limit the offence is of wrongful confinement as define in sec 340
of IPC and when a restrain is par al and a person is prevented from going to a
par cular direc on as define in sec 399 of IPC. Under civil law, the posi on is
different. The tort of false imprisonment is cons tuted when there is a total
restraint. It is no imprisonment if a man is prevented from going to a par cular
direc on, but he is free to go to any other direc on.
In Bird v Jones, a part of public footway, on hammer smith bridge was
wrongfully enclosed by defendant. Seats were put there and entry was given
only to those who pay to watch the rowing there. The plain ff asserted his light
of using this footway, climbed over the fence of the enclosure but was
prevented to go forward. He remained there for about half an hour and
subsequently brought an ac on for false imprisonment.
Means of Escape
If there are viable means of escape, the confinement cannot be deemed as
total, and thus, it does not amount to false imprisonment. However, these
means must be understandable to the person being held. For example, if the
cap ve is a blind individual or a child, they should be able to discern the escape
routes. Furthermore, these means must offer a prac cal and reasonable way
for the individual to be released from deten on.
Knowledge of the Plain ff
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There has been a difference of opinion on the point whether the knowledge of
the plain ff, that there has been restraint on his freedom, is essen al to
cons tute the wrong of false imprisonment.
In Herring v. Boyle held that knowledge is an essen al to cons tute a tort of
false imprisonment. In this case a schoolmaster wrongfully refused to permit a
school boy to go with his mother un l she pays the school fee. The
conversa on between school master and mother was held in the absence of
boy. It was held that the refusal to the mother in the boy’s absence, and
without his being cognizant of the restraint, could not amount to false
imprisonment.
While in Meering v. Graham-white Avia on co., held that knowledge of
imprisonment is not an essen al element for bringing an ac on for false
imprisonment because the wrong could be cons tuted even without a person
having the knowledge of the same.
Unlawful deten on
In order to cons tute the wrong of false imprisonment, it is necessary that the
restraint should be unlawful or without any jus fica on.
The deten on cannot be cons tuted to be lawful if person is not released from
jail a er his acqui al held in Rudul Sah v. State if Bihar.
In Bhim Singh v. State of J. & K., the deten on was unjus fied. In this case, the
pe oner, an M.L.A. of the J. & K. Assembly was wrongfully detained by the
police in order to prevent him from a ending the Assembly session. The act of
arrest was considered to be mischievous and malicious and the Supreme Court
considered it to be an appropriate case for gran ng exemplary damages
amoun ng to Rs. 50,000/-.
Lawful deten on
When there is some jus fica on for detaining a person, there is no false
imprisonment. Thus, if a man entered certain premises subject to certain
reasonable condi ons, it is no wrong to prevent him from leaving those
premises and unless (hose condi ons are fulfilled. In Robinson v. Balmain New
Ferry Co. Ltd., the plain ff entered the defendant’s wharf with an idea to cross
the river by one of the defendant’s ferry boats. Finding that no boat was
available for another twenty minutes, he wanted to go out of the wharf. The
plain ff had paid a penny for entry but refused to pay another penny, which
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was chargeable for exit, according to the rules of the defendant as displayed on
the no ce board. The defendants disallowed him to leave the wharf unless
payment for exit was made. In an ac on for false imprisonment, it was held
that the defendants were not liable as the charges were reasonable.

CH-2 DEFAMATION

Defama on under Law of Torts is tarnishing the reputa on of someone.

Defama on is defined under Sec on 499 of Indian Penal
Code (IPC) 1860 as whoever, if any person by words either spoken or intended
to be read, or by signs or by visible representa ons, makes or publishes any
imputa on concerning any person intending to harm, or knowing or having
reason to believe that such words will be imputa on and can harm, the
reputa on of such person is said to defame that person.
We have two types of defama on under Law of Torts which the first
is Libel and second is Slander.
 Libel this is a defamatory statement that has been published in a wri en
form, this wri en form of statement comes under defama on libel
category. There are two condi on that needs to be seen when we file
case of libel against: –

1. Defender published the defamatory statement about the plain ff

2. Other people also have been exposed to the statement.
In the case of libel there is not other further requirement, law itself presumes
once the statement is published the defamatory statement will remain in
wri en format or any other, and this will remain in public for long me and will
con nue to do harm.
 Slander it refers to the statement that is defamatory but is present in
public in verbal form (spoken) this is li le difficult to prove as there is no
par cular proof of the presented fact so in this the plain ff may suffer
some issues. There are two types of slander and slander per se.
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1. In the first the plain ff must prove the stamen has been flown to at least
one other parson (i.e. the essen al for defama on case) and because of
that the plain ff suffered what are referred as special damage. This can
be like loss of customer, being fired, or other financial harm.
2. Slander per se does not require that the plain ff prove the special
damage. This is because slander per se claims involves the statement
that is in itself presumed to be damaging plain ff. Slander per say
category include-


o Impu ng criminal conduct of the plain ff

o Saying that plain ff has communicated some type of disease
which is communicable in nature.
o Any statement that can affect the plain ff business or profession
comes under this category of slander per se.
Essen als of Defama on under Law of Torts
The statement must be published- the statement should lower the reputa on
in right thinking member of society generally or which tends to make them
shun or avoid that person.
Ram Jethmalani v. Subramaniam Swamy inquiry commission was setup for
examina on the facts and circumstances related to assassina on of late Shri
Rajiv Gandhi. The dependent in press conference said the chief minister of
Tamil Nadu has prior knowledge of assassina on. And the statement was found
ex facie defamatory as that lowered down the reputa on of plain ff.
The statement must refer to the plain ff, if the statement that is reasonably
infer that the statement referred to the plain ff, it this is not the case the
defendant is not liable.
Newstead v. London Express Newspaper Ltd. The defendant published
newspaper ar cle that men oned that par cular person XYZ has been
convicted for bigamy. The story was true but with same name in that same area
another person who was barber was ge ng defamed a er, as the words were
considered to be understanding as referring to the plain ff, the defendant was
held liable.
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Defamatory statement must be published- publica on means that statement

should be known to the other person other then the plain ff or the defendant.
It no other person except the plain ff knows about this then there is no
defama on.
Mahender Ram v. Harnandan Prasad in this the defamatory le er was wri en
in Urdu script, the plain ff was not aware of this script, so he asked third
person to read, this was held as defama on as the defendant was aware of the
fact that plain ff do not know Urdu.
Defenses available in Defama on under Law of Torts:
1. Jus fica on of truth– under criminal law proving statement which was
made was true does not comes under defense but under civil law, merely
showing the statement men oned is a true statement then person. The
defendant argued that convic on was described with substan al and
sufficient accuracy with words so far.
2. Fair Comment– the comment must be expression of opinion rather that
asser on of fact, the comment must be fair without any malice, the
ma er commented upon should be in the public interest.
3. Privilege– in certain occasion where law also recognized the right to
freedom of speech, where plain ff has right of reputa on, law treats
those occasions as the privileged, these are further two types-


o Absolute privilege is that no ac on, lies for defamatory statement

even though the statement is false or made maliciously. This has
been given in parliament privilege, judicial proceeding and state
communica on.
o Qualified privilege is necessary and it must be provided for
without malice. The defendant has to prove the statement was
made on a privileged occasion fairly.

CH-3 MALICIOUS PROSECUTION

Malicious Prosecu on
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Meaning of Malicious Prosecu on

The term “malicious prosecu on” describes the filing of a lawsuit against a
person to harm them without having any solid evidence. When used in this
context, the word “malicious” suggests that the lawsuit was filed for an
improper reason, such as retalia on, spite, or an effort to damage the
accused’s reputa on. People who feel they have been unfairly persecuted may
pursue legal remedies for the harm the unjus fied legal processes have caused
them. Malicious prosecu on is a tort.
Compensa on for this offence may be sought under Sec on 35 of the Civil
Procedure Code (CPC), 1908, and making false charges of an offence to cause
harm is punishable under Sec on 211 of the Indian Penal Code. As a result, the
following legal requirements fall under the purview of malicious prosecu on.
Elements of Malicious Prosecu on
The key elements that typically cons tute malicious prosecu on include:
 Ini a on of legal proceedings
The plain ff was the target of legal ac on started or maintained by the
defendant. This may entail bringing legal ac on, repor ng suspicious ac vity to
law enforcement, or filing charges.
 Lack of Probable Cause
The start of the legal process was done without a reasonable or probable
reason. Malicious prosecu on is dis nguished from lawful conduct by the lack
of a valid legal founda on.
 Malicious intent
The lawsuit was filed to cause harm. Inappropriate mo va ons, such as the
desire to hurt the plain ff, exact revenge, or accomplish a personal goal
unrelated to the pursuit of jus ce, might be characterized as malice.
 Damages incurred by the accused.
The malicious prosecu on must have caused damages for the accused. These
losses may consist of monetary losses, reputa onal damage, psychological
suffering, and legal costs.
 Termina on in Favor of the accused
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The accused must have prevailed in the end of the legal process. This could
imply a not-guilty verdict, an acqui al, or the dismissal of the charges.
Examples of Malicious Prosecu on
 A rival company is targeted by a business rival who files a baseless
lawsuit accusing it of stealing intellectual property.
 A person harbouring personal grudges against a former coworker
lodges many harassment reports with the police, which sparks a never-
ending inves ga on. Even though the accused is rou nely found not
guilty, the ongoing legal proceedings hurt the accused’s reputa on and
inflict emo onal pain.
Damages and Remedies for Malicious Prosecu on
 Compensatory damages
To compensate for the monetary losses suffered during the malicious
prosecu on, the vic m can be en tled to compensatory damages. This can
include any extra costs arising from irra onal legal ac ons as well as court fees
and lawyer fees.
 Reimbursement of Legal Expenses
The offender may be ordered by the court to pay the vic m back for the costs
involved in defending against the malicious prosecu on. This covers legal fees
as well as other expenditures and filing fees for the court.
 Puni ve Damages
Puni ve damages are o en granted by the court to penalize the culprit and
discourage future instances of the same behaviour. Puni ve damages are
meant to act as a deterrent against malevolent ac on and are not the same as
compensa on.
 Injunc on
To stop the perpetrator from carrying out the malicious prosecu on again or
from ac ng similarly in the future, the court may grant an injunc on. A court
order that prevents a party from carrying out a certain act is known as an
injunc on.
 Writ jurisdic on
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It is possible to stop the malicious or unjust prosecu on that is viola ng

fundamental rights by reques ng the proper redress and filing the necessary
writs. The Indian Cons tu on’s Ar cles 32 and 226 give the vic m certain
remedies that they can u lize to hold the offender accountable and, in turn,
feel be er about themselves.
 Expungement of Criminal Record
To lessen the long-term effects of the unjus fied legal ac ons, the court may
order the erasure of any criminal records that the malicious prosecu on caused
the vic m to incur.
Compara ve Analysis
Difference between Malicious Prosecu on and False Imprisonment
False imprisonment and malicious prosecu on are two different civil law torts.
Malicious prosecu on pertains to pe y legal ac ons that are started to cause
harm and concentrate on the abuse of the legal system. Vic ms want
recompense for their losses, and it calls for termina on in Favor of the accused.
False incarcera on, on the other hand, refers to the wilful, illegal deten on of a
person without a valid reason. A claim can be made without malice or the need
for incarcera on to end. Vic ms want recompense for their injuries. Although
both entail wilful misconduct, malicious prosecu on focuses on misusing the
legal system, whereas false imprisonment refers to incarcera on that is either
physical or psychological.
Similari es in Legal Principles
Some basic legal elements are shared by false imprisonment and malicious
prosecu on, two separate torts under civil law. Both require deliberate
behaviour on the part of the defendant: false imprisonment calls for deliberate,
illegal constraint, while malicious prosecu on entails the purposeful start of
legal procedures without reasonable cause and with malicious intent. A crucial
component in both situa ons is the defendant’s lack of legal reason, which
indicates that their acts are unlawful.
For the suffering they have endured, vic ms of both torts seek compensatory
damages. This can include monetary losses, psychological suffering, and more
harm brought on by the wrongdoing. Due to the civil character of certain
wrongs, the harmed party may pursue remedies in civil court processes
without the need for criminal prosecu on.
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Common Defences against False Imprisonment

The circumstances of a certain case determine the many defences available
against false deten on. The party accused of false imprisonment may establish
several possible defences.
 Consent
It would be possible to use the claimed vic m’s voluntary agreement as a
defence against false imprisonment if it can be shown that they gave their
assent.
 Legal Authority or Jus fica on
It could be a defence if the person in charge of the imprisonment had a valid
reason or legal authority for their conduct. For instance, a law enforcement
official may be able to use their legal authority as a defence when making a
legi mate arrest.
 Par al restraint
When someone is denied the ability to move or go somewhere, it is deemed to
be false imprisonment. However, if someone is only par ally restrained, they
cannot claim this because they would s ll have plenty of opportunity to move
or leave the loca on. Nonetheless, certain courts have con nued to hold that
par al impairment of one’s freedom cons tutes depriva on, classifying it as
false imprisonment and requiring res tu on.
 Probable cause
This defence element is objec ve; rather than depending on the crimes
commi ed by the specific perpetrators, it relies on credible facts or knowledge
that would cause a reasonable person to take the appropriate safety measures
as though they were the ones doing the crimes.
 Restric on on minor
For the benefit of the child, a person who oversees the minor or has
permission from the minor’s guardian may prevent him from leaving a
par cular loca on. Since this is being done for the minor’s benefit, it can be
argued that this is a legi mate defence, and he cannot be held accountable for
the offense.
Common Defences against Malicious Prosecu on
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 Absence of malice
It is essen al to demonstrate that the star ng of the legal process was not
done with malevolent intent. This entails proving that the accuser had no
malice, resentment, or unethical inten ons toward the accused.
 No causa on
One possible defence is to claim that the accuser’s acts were not the direct
cause of the judicial proceedings. The argument of inten onal prosecu on may
be refuted if other circumstances or events independently resulted in the filing
of legal documents.
 Immunity through statute
Like the issue of false incarcera on, certain individuals are protected against
accusa ons of malicious prosecu on by legal provisions such as Sec on 197 of
the Code of Criminal Procedure (CrPC), 1973, and Sec on 132 of the
Nego able Instruments Act (NIA), 1881. Public servants, witnesses, and those
who report suspected criminal conduct in good faith and are shielded from
accusa ons of malicious prosecu on are a few examples of these.
 Good faith
A defence can include proving the accuser’s sincere belief in the truth of their
allega ons and that they filed the lawsuit in good faith, free from malice or
other nega ve intent.
Cases
1. landmark cases of malicious prosecu on
 Haryana Financial Corpora on v. Jagdamba Oil Mills (2002)
In this instance, the Supreme Court ruled that a person who was directly or
indirectly involved in star ng the criminal proceedings could only be the target
of a malicious prosecu on ac on. It is not possible to bring a lawsuit against
the government or its representa ves unless there is proof of their malice.
 Vidhyadhar Sunda v. State of Rajasthan
In this instance, the Rajasthan High Court ruled that to establish malicious
prosecu on, the plain ff had to demonstrate that the defendant had
inten onally created false statements or falsified evidence to start the criminal
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inves ga on. Malice or the lack of probable cause is not proven by the simple
absence of evidence against the plain ff.
1. landmark cases of false Imprisonment
 Bhim Singh v. State of Jammu and Kashmir (1985)
In this historic case, the Supreme Court established unambiguous rules
underscoring the need to give people who have been wrongfully imprisoned
prompt and adequate compensa on, as this represents a breach of their
fundamental rights.
In 1985, on his way to a legisla ve session, Shri Bhim Singh, a member of the
Jammu & Kashmir Legisla ve Assembly, was arrested and suspended from the
assembly on charges that he had made an inflammatory comment.
Nevertheless, dispari es were discovered in the police officers’ affidavits
concerning the arrest and remand procedure. It became apparent that Bhim
Singh had not been legally introduced before the magistrate. The court found
that Bhim Singh had been wrongfully held and that his cons tu onal rights had
been violated. Even though he was ul mately freed, the State of Jammu and
Kashmir was ordered by the court to pay him Rs. 50,000 in compensa on for
the viola on of his rights.
 Ishwar Das Moolrajani v. UOI (2016)
The Union of India and Ishwar Das Moolrajani are par es to this legal issue. The
case centres on Moolrajani’s submission of Rs. 4.5 crores as bail, as mandated
by the Rajasthan High Court. Moolrajani contends that his arrest was illegal and
files a habeas corpus pe on to obtain bail. The Union of India responds by
filing an appeal, contes ng the legi macy of the arrest as well as the pe on.
The bail requirement is momentarily suspended by the Supreme Court. The
Supreme Court is not sa sfied with the Union of India’s jus fica on for not
pursuing criminal proceedings against Moolrajani, notwithstanding their claim
that the issue has lost all relevance. Consequently, the Central Bureau of
Inves ga on (CBI) has been directed by the Supreme Court to inves gate why
Moolrajani has not been prosecuted for alleged viola ons of customs
legisla on. In its ul mate ruling, the Supreme Court denied the Union of India’s
appeal, granted Moolrajanni’s appeal, overturned the limita ons imposed by
the High Court, and directed the CBI to inves gate the case more thoroughly.
Conclusion
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1. Importance of Protec ng Individual Rights

We discover the cri cal significance that malicious prosecu on and false
imprisonment play in protec ng individual liberty and maintaining the integrity
of legal procedures by delving into the complex legal areas of these torts. A
thorough analysis of probable cause and the absence of malice as a defence is
necessary in cases of malicious prosecu on, which arises from the diabolical
misuse of judicial proceedings. On the other hand, as possible defences against
false incarcera on, which is based on the deliberate and illegal restric on of
freedom, permission, legal authority, or need must be carefully considered.

CH-4 NERVOUS SHOCK, TRESPASS

What is Nervous Shock?

Nervous shock in tort refers to a mental illness or injury resul ng from the
inten onal, negligent or reckless ac ons or omissions of another person. It
typically occurs when an individual has a genuine fear of suffering immediate
personal harm. This type of shock o en manifests as a psychological condi on
brought on by witnessing a trauma c event, such as an accident involving one’s
family members or spouse.
Despite cri cisms that the term is inaccurate and misleading, “nervous shock”
con nues to be used as a convenient shorthand for a complex legal concept. In
English law, there are strict limita ons on the amount of compensa on that
can be sought for nervous shock, especially when it arises from negligence.
Who can bring a Nervous Shock Claim?
A nervous shock in tort claim can be brought by an individual who has been
diagnosed with a genuine mental illness resul ng from an event that the
defendant should have reasonably an cipated could cause such an illness in a
person of “normal for tude” if reasonable care were not taken.
In addi on to the affected individual, certain close rela ves of the vic m can
also bring a nervous shock claim. These close rela ves include:
 One of the vic m’s parents.
 People who are parents to the vic m.
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 The vic m’s spouse or domes c partner.

 The vic m’s child or stepchild.
 Any other individual for whom the vic m serves as a parent.
The term “close rela ves” also encompasses siblings, half-brothers or half-
sisters, step-brothers and step-sisters. A spouse, husband, wife or de facto
partner is referred to as a “spouse or partner” in this context. These close
rela ves may bring a nervous shock claim if the criteria for such a claim are
met.
Evolu on of Nervous Shock in Torts
Over me, the legal principles surrounding nervous shock in torts have
evolved. Courts have expanded the scope of claims to encompass a variety of
poten al scenarios, moving beyond just immediate shock. Ini ally, the courts
were cau ous about recognizing claims related to psychiatric illness, fearing
fraudulent or spurious claims under the guise of mental health issues.
One challenge in these cases can be demonstra ng the connec on between
the defendant’s ac ons and the plain ff’s shock stemming from those ac ons.
This connec on is essen al for a successful nervous shock claim.
Tests of a Claim of Nervous Shock
The legal test for a nervous shock claim typically involves three criteria
established by common law:
 Duty of Care: The defendant must owe the plain ff a duty of care,
meaning the defendant had a legal obliga on to act reasonably and
avoid causing harm to the plain ff.
 Foreseeability of Psychological Harm: It must be reasonably foreseeable
that the plain ff could experience psychological harm as a result of the
defendant’s ac ons or inac on. In other words, a reasonable person in
the defendant’s posi on should have an cipated the risk of causing
psychological harm to the plain ff.
 Causa on: The plain ff’s psychological injury must be a direct result of
the defendant’s negligent act or omission. The plain ff must establish a
clear causal link between the defendant’s ac ons and their psychological
harm.
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Compensa on in Nervous Shock Claims

There are two types of vic ms of nervous shock in torts:
Primary Vic m: A primary vic m is someone who is directly harmed in an
accident due to the negligence of the wrongdoer. This person is physically
affected by the incident.
Secondary Vic m: A secondary vic m is an individual who experiences nervous
shock as a result of an accident that harmed the ini al vic m but was not
physically endangered themselves.
Cases of Nervous Shock in Torts
Here are two notable case laws related to nervous shock in torts:
Bourhill v. Young
Facts: In this case, the House of Lords addressed the issue of liability for mental
illness. A pregnant woman exited a tram and heard the distant sound of a car
accident. She then visited the accident scene, saw blood on the road and later
experienced a miscarriage due to the stress she endured.
Judgment: The House of Lords ruled that the woman was not a “foreseeable
claimant.” In other words, she was not allowed to base her claim on harm done
to another person. This case set a precedent that limited who could bring a
claim for nervous shock in torts.
McLoughlin v. O’Brian
Facts: In this case, the plain ff was not physically present near the accident but
was greatly distressed upon learning about it.
Judgment: The House of Lords held the defendants responsible and expanded
the law to include cases where the plain ff arrived immediately a er the
accident but had not personally witnessed or heard it. Lord Wilberforce
proposed three control mechanisms that should be determined in each case:
the group of people whose claims should be accepted, their proximity to the
disaster and the mechanisms leading to mental illness. Following a unanimous
vote in the House of Lords, these control mechanisms were revised and applied
to cases involving nervous shock in torts.
Laws Related to Nervous Shock/Psychiatric Damages in India
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In India, the jurisdic on and liability concerning psychiatric damages in tort law
are not extensively developed. While there isn’t specific legisla on addressing
nervous shock, Indian courts have, in various cases, granted compensa on to
plain ffs based on the principle of reasonableness.
One significant case is Jose Philip Mamphilly v. Premier Automobile
Limited. In this case, the plain ff purchased a brand new car that turned out to
be defec ve. The mental distress caused by this experience led to a nervous
shock in torts. The manufacturer denied liability, claiming the ma er was
trivial. However, the court ruled in favour of the plain ff, gran ng
compensa on for the mental agony endured. This case highlighted the need
for compensa on in situa ons where consumers suffer mental distress due to
defec ve products.
The recent judgment in Bangalore Development Authority v. Syndicate
Bank emphasised that the amount of compensa on awarded would depend on
the specific circumstances of each case, considering factors such as the nature
and dura on of the harassment and the authority’s ac ons that led to the
distress.
While India lacks specific legisla on governing liability for nervous shock,
aspects related to mental health are addressed under the Mental Health Act,
1987. The compensa on for psychiatric damages is typically determined on the
basis of reasonableness and the facts of each case.
Another notable case is Lucknow Development Authority v. M.K.
Gupta, where the plain ff sought compensa on for harassment and mental
agony a er the authority failed to provide a flat as promised. The court granted
compensa on, emphasizing the social benefit of such a judgment.
Cases related to psychiatric damages, like Ghaziabad Development Authority
v. Balbir Singh and Haryana Development Authority v. Vijay Aggarwal, have
followed a similar line of judgment based on reasonableness.
However, in the case of Ghaziabad Development Authority v. UOI, the court
took a different approach, focusing primarily on the terms of a contract and
applying The Specific Relief Act, 1963. The court did not consider tort aspects
and stated that compensa ng the plain ff for mental anguish was improper in
this case.
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In summary, India does not have specific legisla on addressing liability for
nervous shock in torts and cases related to psychiatric damages are determined
based on reasonableness and the individual circumstances of each case. The
approach taken by the courts for ma ers concerning torts law can vary, with
some cases emphasizing contractual aspects while others consider tort
principles.
Conclusion
Nervous shock in tort law refers to the emo onal distress or psychiatric harm
suffered by an individual due to the negligent or inten onal ac ons of another
party. To establish a claim for nervous shock, several key elements must be
proven, including the defendant’s duty of care, a breach of that duty,
foreseeability of psychological harm and a direct causal link between the
defendant’s ac ons and the plain ff’s emo onal distress.
Compensa on may be awarded to vic ms, but the specific legal principles and
limita ons can vary by jurisdic on. Nervous shock cases o en involve scenarios
where individuals witness trauma c events or experience emo onal distress
due to the defendant’s ac ons and they seek compensa on for their
psychological suffering.

TRESPASS

Trespass to person
It is an unreasonable interference, with malafide inten ons, with an
individual’s body which is commi ed either by causing physical harm or by the
apprehension of use of force. It is further divided into assault, ba ery and false
imprisonment.
Assault
Wrongful apprehension of fear in the mind of other person causing him to
suffer harm is known as assault. No physical harm is needed to be established
to prove assault. In the case of R v. S. George[1], a person took out the gun
pretending it to be loaded and pointed out to the other person. The other
person, in the apprehension of fear, suffered shock. The person was held liable.
It did not ma er whether the gun was loaded or unloaded. But the
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foreseeability of the person of apprehension of fear did ma er. In the same

case if the gun pointed the back and the person was not aware of it, then this
act would not cons tute assault.
Similarly in the case of R v. Constanza[2], the defendant mailed eight hundred
le ers to the plain ff. Along with this, the person also wrote offensive words
on the main door of the plain ff which made her suffer clinical depression. The
defendant was held liable for the assault and was penalised as well.
Ba ery
When force is used against a person in a manner that it causes a physical injury
to the person, then the use of such force is termed as ba ery. The force so
used should be inten onal and without lawful jus fica on. In other words,
uninten onal or lawful use of force cannot be termed as ba ery. In the case
of Stanley v. Powell[3], both the plain ff and the defendant were from the
shoo ng party. The defendant fired his gun at a pheasant. However the bullet
from his gun reverted back a er striking a tree and hit the plain ff accidentally
which wounded the plain ff. Defendant was not held liable for the tort of
ba ery because the act of the defendant was not inten onally done.
However the use of force against a trespasser is jus fied and the person using
such force would not be held liable. In the case of Pratap Daji v. B.B.& C.I.
Rly.[4], the plain ff managed to enter the defendant’s railway company’s
carriage without purchasing a cket for his travel. He on the subsequent stops
tried to purchase the cket for himself but he failed in doing so. During his
journey, he was asked for his cket which he did not have. Since he failed in
showing his cket he was asked to step down from the carriage. The plain ff
refused to do so. On his refusal, the defendant forcefully expelled him out of
the carriage. The plain ff sued the railway company for the tort of ba ery. It
was held that the defendant could not be held liable because the force was
used against a person who was without his cket and therefore a trespasser.
Use of force against a trespasser is jus fied and therefore there is no liability of
the defendant against the plain ff.
Just obstruc on cannot lead to the offence of ba ery. For instance in the case
of Innes v. Wylie[5], the policeman wrongfully unlawfully restricts a person
from entering a club. It was held that the police officer was an obstruc on like
a wall just to prevent the entrance into the premises; therefore this did not
cons tute ba ery.
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Mayhem
It is a tort that injures an individual to such an extent that the vic m is unable
to defend himself from the wrongdoer. Injuries to arm, hand, leg, foot in a
manner that the body parts become disabled are the examples of mayhem. It is
some mes termed as aggravated ba ery. In the case of Fe er v. Beale[6], the
plain ff received damages from the defendant for ba ery commi ed by him.
Soon a er, part of his skull also came out of his head as a result of the ba ery.
Consequen ally the plain ff also sued the defendant for mayhem. The
defendant was also held liable for mayhem and had to compensate the
defendant.
False Imprisonment
When a person is inten onally restricted from exercising his or her freedom,
the person is said to be falsely imprisoned. The cause of imprisonment,
plain ff’s knowledge of his or confinement and the inten on of the defendant
cons tute the factors for the wrongful imprisonment.
In the case of Herring v. Boyle[7], a school teacher without any jus fied reason
refused to permit a school boy to leave the school with his mother unless the
mother paid the amount of the fees which was unpaid, this dialogue between
the teacher and the mother when the boy was not present there and the boy
was not aware of the fact that he was in wrongful restraint. Since the person
who was restrained did not have the knowledge of the fact, the court held that
this did not amount to false imprisonment and the school teacher was not held
liable.
In the other case of Meering v. Graham White Avia on[8], the plain ff was
asked to be into a room with two security guards working for the avia on
company. He asked for the reason and put a condi on that if he was not told
the reason he would leave the room. He was told regarding the doubt of the
and therefore he agreed to stay. The guards stayed outside un l the police
officers arrived. It was not known to him that the guards were ordered to
prevent the man from leaving the room. It was held that the act fulfilled the
requirement for a person to be falsely imprisoned and therefore the plain ff
was allowed to receive the damages.
Defences to Trespass to Person
Valid Arrest
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Lawful deten on of a person if there is sufficient reason to believe that the

person is indulged in an offence or involved in a wrongdoing does not amount
to false imprisonment. A person can also be lawfully arrested for arres ng a
ci zen without any jus fied reason.
Consent
If a person voluntarily consents to be trespassed then such act would not
amount to trespass. In the case of Robinson v. Balmin New Ferry Company
Ltd.[9], the plain ff wished to take a ferry across a river. To get to the wharf
from which the ferry would depart, he had to go through the turns le. The
turns le was administered by the defendants. The no ces on the either side of
the turns le men oned that one penny would be charged to use the turns le.
However later the plain ff changed his mind and decided to go through the
turns le. The defendants again demanded one penny which the plain ff
refused to pay. As a result the defendants prohibited him from using the
turns le. The plain ff alleged that the defendants had falsely imprisoned him.
However the court dismissed the plain ff’s conten on and stated that he
agreed to take the risk that if he did not pay a penny, he will not be allowed to
return, and so deten on by the defendants was not held to be false
imprisonment.
Probable Cause
Some mes imprisonment is jus fied on the basis that it was alleged that the
defendant was a par cipant in a crime. Such imprisonment is not considered as
false imprisonment.
Self Defence
It is lawful for any person to use reasonable amount of force for self protec on
or protec on of any other person or property against any unlawful use of force.
However use of such force should be reasonable and propor onate. In the case
of Cresswell v. Sirl[10], the son of defendant shot plain ff’s dog because the
dog a acked his pigs and sheep. The plain ff sued the defendant. The Court of
Appeal held there was no other way to save animals other then shoo ng the
dog and therefore neither the defendant nor his son was held liable for the
killing of the dog.
Remedies to Trespass to Person
Ac on for Damages
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A plain ff can bring an ac on to claim damages whenever his or her body has
been trespassed. Monetary damages can be claimed not only for the physical
injury but also for the injury to his or her liberty.
Self Help
Self help is the remedy available to a person who has been wrongfully
restrained. The person can free himself or herself instead of wai ng for a legal
ac on.
Writ of Habeas Corpus
Supreme Court under Ar cle 32 and High Court under Ar cle 226 of the Indian
Cons tu on can issue a writ for a person who has been wrongfully detained.
By this writ the individual who is detaining is required to produce the detained
person before the court and ra onalize his or her deten on. The person would
be immediately released if the court finds the reason for the deten on
unreasonable.
In the landmark cases of Rudal Shah v. State of Bihar[11] and Bhim Singh v.
State of Jammu and Kashmir[12], the Supreme Court has granted
compensa on in the writs of Habeas Corpus.
Trespass to Property or Goods
Wrongful interven on of one over the property or goods belonging to another
without any lawful jus fica on is called as trespass to land or trespass to goods
respec vely. This interference should be of direct and physical nature. Trespass
to property is looked with the purview of possession rather than ownership of
the goods or the property. In other words, a person who is having the
possession of the goods or the property can bring a suit for trespass against the
lawful owner if such owner cannot provide lawful jus fica on for such
interven on.
In the case of Madhav Vithal Kudwa v. Madhavdas Vallabhdas[13], the tenant
lived on the first floor of a mul -storeyed building. The plain ff, being the
landlord, alleged that the act of defendant parking his car in the compound of
his building amounted to trespass. He asked for injunc on from the court to
restrain defendant from such parking. However the court held that parking of
vehicle cannot amount to trespass as it was a mul -storeyed building.
In the case of Basely v. Clarkson[14], the defendant cut the grass on his land
and mistakenly he crossed the boundary and did same on the land of the
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neighbour. In the instant case the defendant’s plea of mistake in claiming

trespass to land was rejected. It is because his act was not uninten onal
though he commi ed a mistake regarding the presence of the boundary.
However it would not amount to trespass if the entry proved to be involuntary.
In the case of Smith v. Stone[15], the person was thrown into the land of the
plain ff. Since his entry was not inten onal therefore his act did not amount to
trespass.
It is a presump on in holding the possession rights of a land that the person
who possesses a piece of land possesses the earth below it and the sky above
it. Thus any entry beneath the surface at any depth would be ac onable
trespass.
Trespass can be commi ed through air, land, animals etc.
Aerial Trespass
The possessor of the land has the right to the airspace above the surface of the
earth ll infinity. However in contemporary mes, the possessor of the land
has right to air space above and earth below to the height and depth as is
required for the ordinary use and enjoyment of land. In the case of Bernstein v.
Skyviews[16], Bernstein sued the defendants for trespass by shoo ng pictures
from significant height above the ground of his house. The court held that at
such height the plain ff had no jus fied use of airspace and therefore the
defendant was not held liable for aerial trespass.
Trespass by Animals
The livestock keepers are responsible for any damage caused by their animals
on the land of another person. They are also liable even in the case their ca le
trespasses on their own. The Ca le Trespass Act, 1871 looks into in this ma er
in India.
Trespass ab ini o
A person who has legally entered into the premises of a person commits
trespass a er his right to enter has came to an end. His act would make his
original entry tortuous and such person would be held liable for
reimbursement not only for the entry but for all subsequent acts. Such trespass
is termed as trespass ab ini o. In the case of Minister of Health[17], it was held
that a licensee, whose license has expired, can be prosecuted for trespassing if
upon request he does not vacate the premises in a reasonable me.
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Remedies to Trespass against Property

The person whose possession rights of land are infringed can bring a suit for
trespass against the tor easor. He may also secure his or her possession
against a trespasser using reasonable amount of force.
Damages
Compensa on: Financial damages can be procured from the defendant if
significant losses have been suffered as a result of such trespass. However, a
nominal compensa on is generally granted if no injury is suffered.
Injunc on: Some mes the plain ff does not ask for compensa on but seeks an
injunc on from the court to prevent con nuing or future trespass. This
injunc on, for example, can be in the form of removal of a tree belonging to
the defendant.
Defences against Trespass to Property
Consent: The act of interven on into the land or goods would not amount to
trespass if the possessor gives consent to the plain ff voluntarily. In other
words, the consensual act of interven on would amount to trespass if such
consent was induced by fraud, intoxica on or an incompetent person.
Public Necessity: When a person inten onally goes into the property of other
person for the sake of protec ng the community from an immediate and
impera ve harm, then such interference would not be considered trespass. In
the case of Esso Petroleum Co v Southport Corpora on[18], the captain of a
ship commi ed trespass by le ng oil to flood a shoreline. It was necessary to
protect his ship and crew members. Since this was a necessity, the defence of
public necessity was accepted. However this defence would not be granted
when the person had alterna ve courses of ac on.
Jus fica on by Law: It is a defence in those situa ons where a person is
permi ed to enter into the premises of someone by the way of Statute or law
of the land. For example police officers, income tax officers etc.

UNIT-4
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CH-1 NEGLIGENCE: MEANING, ELEMENTS, CONTRIBUTORY NEGLIGENCE AND

COMPOSITE NEGLIGENCE, MEDICAL NEGLIGENCE.

What is Composite Negligence?

Composite negligence refers to a situa on where the negligent ac ons of two
or more individuals combine to cause harm to a third party. In such cases, each
negligent party is responsible for the full extent of the damage. The injured
party, also referred to as the plain ff, can choose to pursue any or all of the
negligent par es for compensa on. This differs from situa ons where only one
individual’s ac ons result in harm.
In composite negligence, the key principle is that all wrongdoers are jointly
and severally liable for the damages caused. Joint liability means that each
negligent party can be held responsible for the en re damage, while several
liability allows each wrongdoer to be sued separately for their respec ve part
of the damages. However, the plain ff is not required to determine the
propor on of negligence between the wrongdoers.
Legal Defini on and Scope of Composite Negligence
Under the common law of tort, negligence occurs when a person fails to
exercise reasonable care, resul ng in harm to another. Composite negligence
broadens this concept by involving mul ple negligent par es. The injured
person can recover the en re compensa on from any of the wrongdoers,
leaving the appor onment of damages among the wrongdoers to be decided
between themselves.
In countries like India, the dis nc on between joint tor easors (who commit a
tort together) and independent tor easors (who cause damage independently
but contribute to the same injury) has less relevance than it does in
jurisdic ons like England. Indian courts typically treat composite negligence the
same way, whether the par es acted jointly or independently.
Elements of Composite Negligence
1. Mul ple Wrongdoers: At least two par es must have contributed to the
injury through their negligence.
2. Common Harm: The negligence of each party results in the same harm
to the plain ff.
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3. Joint and Several Liability: The injured party can hold any or all of the
negligent par es responsible for the full compensa on.
4. No Obliga on for Appor onment: The injured party is not obligated to
determine the exact contribu on of each party’s negligence.
Dis nc on Between Composite and Contributory Negligence
It is essen al to dis nguish composite negligence from contributory
negligence, as the two are o en confused but have different legal implica ons.
Contributory Negligence
Occurs when the injured party (plain ff) is also negligent and contributes to
their own harm. In such cases, the plain ff’s compensa on is reduced in
propor on to their degree of fault. For instance, if a pedestrian is hit by a car
but was jaywalking at the me of the accident, they may be par ally liable for
their own injuries.
Composite Negligence
Refers to the negligence of two or more defendants, where the plain ff bears
no responsibility for the accident. The plain ff can claim full compensa on
from any of the negligent par es without any reduc on in damages, as they
are not at fault.
Here is a table showing the differences between Composite
Negligence and Contributory Negligence:

Aspect Composite Negligence Contributory Negligence

Negligence of two or more par es causes The injured party contribut

Defini on
harm to a third party. through their own negligen

Number of Par es Two or more negligent par es are involved, The plain ff and the defend
Involved causing harm to the plain ff. leading to the plain ff’s inju

Fault of the The plain ff is not at fault; only the The plain ff shares fault wi
Plain ff defendants are responsible for the injury. their injury.
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Defendants are jointly and severally liable Liability is shared between

Liability
for the full extent of the damages. defendant based on their d

The plain ff can claim full compensa on Compensa on is reduced b

Compensa on
from any or all negligent par es. contribu on to their own in

The plain ff is en tled to recover the full

Recovery of The plain ff’s compensa o
amount of damages from any one
Damages to their percentage of negli
defendant.

Appor onment of damages is handled

Appor onment of The court appor ons dama
internally among the negligent par es, not
Damages plain ff and the defendant
affec ng the plain ff.

Two drivers speeding cause harm to a A pedestrian jaywalking get

Example pedestrian. Both drivers are liable for the driver. The pedestrian’s com
en re compensa on. due to their own negligence

Defendants can seek contribu ons from

Legal The defendant’s liability is r
each other for their respec ve share of
Consequences plain ff’s share of fault.
liability.

The plain ff does not need to prove which

The plain ff must prove the
Burden of Proof defendant is more responsible; they can
defend against claims of the
claim from any.

Applied in cases involving mul ple Applied in cases where both

Jurisdic ons
defendants responsible for harm. defendant share responsibi

Nature of Liability in Composite Negligence

The nature of liability in composite negligence is based on the principle of joint
and several liability. This means:
 The plain ff can recover the full amount of compensa on from any one
of the wrongdoers, or divide the claim between them.
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 The wrongdoers can appor on the damages between themselves later,

but this does not affect the plain ff’s right to recover the en re
compensa on.
 The wrongdoer who has paid more than their fair share of the damages
may seek contribu ons from the other wrongdoers.
For instance, in the event of a car accident where both Driver A and Driver B
were speeding and caused harm to a pedestrian, the pedestrian could sue
either Driver A or Driver B for the en re compensa on. If Driver A pays the
en re amount, they may later seek contribu ons from Driver B for their share
of the liability.
Claimant Rights in Composite Negligence Cases
A cri cal aspect of composite negligence is the protec on of the rights of the
injured party. The following are the key rights available to the plain ff in such
cases:
Right to Sue Any or All Wrongdoers
The injured party has the right to bring a lawsuit against any one of the
negligent par es or all of them. This allows the plain ff to recover the full
compensa on, irrespec ve of the degree of each party’s fault.
No Requirement for Appor onment by Plain ff
The plain ff is not obligated to determine the rela ve fault of the negligent
par es. The appor onment of damages is a ma er for the wrongdoers to
resolve among themselves.
Right to Full Compensa on
The injured party can recover the en re compensa on from any of the
wrongdoers, even if one party’s negligence was minor compared to the other.
No Double Recovery
The injured party cannot recover more than the total amount of damages.
Once full compensa on is obtained from one or more defendants, the plain ff
cannot seek addi onal compensa on from the other defendants.
Case Laws on Composite Negligence
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1. The State of Punjab vs. Phool Kumari (1963): In this case, the Punjab and
Haryana High Court held that appor onment of liability was possible between
various tor easors. However, this decision has been dissented in many
subsequent cases, where courts have emphasised joint and several liability
over appor onment.
2. Amthiben vs. Superintending Geophysicist, O.N.G.C: The Gujarat High Court
ruled that tor easors were jointly and severally liable for the harm caused,
though the court appor oned damages for the purpose of determining each
tor easor’s internal liability. This case involved both composite and
contributory negligence, with damages adjusted accordingly.
3. United India Fire & General Insurance Co. vs. Sayar Kanwar: In this case, the
court clarified that in cases of composite negligence, there is no appor onment
of damages between the plain ff and the defendants. The defendants are
jointly liable for the en re compensa on.
These cases demonstrate the applica on of composite negligence in Indian
courts, where the focus is on ensuring that the plain ff receives full
compensa on without needing to appor on the fault between the negligent
par es.
Examples of Composite Negligence
1. Motor Vehicle Accident: A classic example is a collision involving two drivers,
both of whom are speeding and not paying a en on to the road. Their
combined negligence causes injury to a pedestrian. Both drivers are jointly
liable for the injuries caused to the pedestrian.
2. Medical Negligence: In a hospital se ng, if a surgeon fails to sterilise
instruments properly, a nurse fails to monitor the pa ent’s vital signs, and the
pa ent suffers complica ons, both the surgeon and the nurse could be held
liable for the resul ng harm.
3. Product Liability: A manufacturer produces a defec ve product that causes
harm to a consumer, and the retailer fails to inspect the product before selling
it. Both the manufacturer and the retailer could be jointly responsible for the
consumer’s injury.
4. Workplace Injury: If an employee is injured due to inadequate safety
equipment provided by the employer, and the employee also fails to follow
safety protocols, both par es may be held liable for the injury.
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Appor onment of Damages

Although the plain ff is en tled to recover the en re compensa on from any
negligent party, there may be situa ons where courts decide to appor on
damages for internal purposes between the wrongdoers. However, this
appor onment does not affect the plain ff’s right to recover the full amount.
For instance, in Amthiben vs. Superintending Geophysicist, O.N.G.C., the court
appor oned damages between the driver of a truck and the driver of a jeep
involved in an accident. However, it was clarified that the appor onment was
for internal purposes, and both drivers remained jointly and severally liable for
the full amount of compensa on.
Conclusion
Composite negligence is an essen al legal concept that holds mul ple par es
accountable for the harm caused to a third party through their combined
negligence. The principle of joint and several liability ensures that the injured
party can recover full compensa on without being burdened by the need to
appor on fault between the wrongdoers. The injured party is protected, and
the wrongdoers bear the responsibility of resolving any internal disputes
regarding their share of the damages.
In prac ce, composite negligence is par cularly relevant in cases involving
motor vehicle accidents, medical malprac ce, product liability, and workplace
injuries. By allowing the injured party to claim compensa on from any or all
negligent par es, the law ensures that jus ce is served without complica ng
the process for the plain ff.

CH-2 NUISANCE: MEANING, ESSENTIALS, KINDS, DEFENCES.

Introduc on to Nuisance under Law of Torts

The word Nuisance is derived from the French word ‘Nuire’[1] which means to
infuriate or hurt. It is an unlawful interference with a person’s use or
enjoyment of land. This legal right cannot be taken away without lawful
jus fica on. Contrary to the given protec on if someone unlawfully interferes
with this en tlement of a person he/ she commits ‘Nuisance’ under Law of
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Torts. Generally, a person is en tled to the full and reasonable enjoyment and
use of his property tangible, intangible, movable or immovable.
Jurist Salmond expresses “The wrong of Nuisance consists in causing or
allowing without lawful jus fica on the escape of any deleterious thing from
his land or from elsewhere into land in possession of the plain ff, e.g. water,
fumes, smoke, gas, noise, heat, vibra on, electricity, disease, germs,
animals[2].”
Essen al Elements of Nuisance under Law of Torts
For making an act of Nuisance ac onable under the law of torts the following
essen als must be sa sfied-
 Wrongful Act by the Defendant
 Damage/Loss/Inconvenience caused to the Plain ff
Important Case Laws for Nuisance under Law of Torts
In the case of Ushaben v. Bhagyalaxmi Chitra Mandir[3], where the Plain ff
prosecuted the Defendant against the screening of the movie “Jai Santoshi
Maa”, declaring that it undermines the religious sen ments of a par cular
Hindu community, the court dismissed the plea sta ng that undermining a
religious emo on was not an ac onable wrong and the Plain ff is free to not
watch the movie again. Hence it was held that in order to claim damages for
Nuisance, the interference shall be in a state of con nuing wrong.
In Halsey v. Esso Petroleum Co. Ltd[4], where the defendant’s factory emi ed
smokes, oil, fumes and smell and polluted the environment along with harming
the plain ff’s health because of his own sensi ve health issue, the former were
held liable to the la er only for the emission of smoke, oil and fume and not
for health hazard.
Kinds of Nuisance under Law of Torts
Nuisance as a tort is further categorized into two types- Private Nuisance and
Public Nuisance, both having their own areas of ac ons and types of damages.
Private Nuisance
Private Nuisance, influences an individual rather than the world at large. It
provides the affected person a claim of “Right in Personam”. Private Nuisance
occurs when the ac on of the Defendant affects only the Plain ff in his own
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enjoyment of land and property and no one else. Technically, when a person
does an ac on which influences another person, and intercepts the la er from
performing rights over his own property. It does not affect any other person.
The Plain ff can claim for unliquidated damages and considering the
seriousness of injury, the same are decided and awarded to him.
Essen als of Private Nuisance
 Unlawful or Unreasonable Interference.
 Such Interference causes a legal injury to the plain ff only. The injury
may be in respect of either Property or Physical Discomfort to the
Plain ff.
Case Laws
In St. Hellen Smel ng Co. v. Tipping[5] where the fumes from the Defendant’s
Factory damaged the Trees of the Plain ff, the court held that the damage to
trees is an unlawful damage of the La er’s property and hence give rise to an
ac on for Nuisance against the former.
In Dilaware Ltd. v. Westminister City Council[6] where the roots of the
Defendant’s trees caused cracks to the adjacent building, the Plain ff i.e. the
owner of the building was made en tled to recover suitable damages from the
defendant by the Virtue of tort of Nuisance.
In Da amal Chiranji Lal v. Lodh Prasad[7], the defendants were awarded an
injunc on to stop the grinding mill which led to a non-peaceful life for the
Plain ff and his family.
In Palmar v. Loder[8], the Defendants were awarded a perpetual injunc on
against loud laughing, noise making and con nuous ringing of the Plain ff’s
Doorbell.
Public Nuisance
Public Nuisance is defined as an unreasonable and unlawful act of the
defendant that causes substan al inconvenience and legal injury to the people
at large. It comes into play when by the Act of the defendant, a mass of people
is influenced nega vely. In the words of Bermingham, Public Nuisance, where
the defendant’s ac ons “materially affects the reasonable comfort and
convenience of life of a class of Her Majesty’s subjects[9]”
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Public Nuisance, being a crime under the Indian as well as English Laws, finds
its recogni on in various statutes of the country. Thus any ac on which
seriously hinders with the health, safety, comfort and convenience of the public
in general or which intend to demean morals come under public nuisance.[10]
Examples :
(a) Fully or par ally blocking a highway – New Group Newspapers v.
SOGAT[11].
(b) Picke ng on a road – Thomas v Na onal Union of Mineworkers[12]
(c) Blocking a canal – Rose v Miles[13]
(d) Making obscene telephone calls to large number of women – R v
Johnson (Anthony Thomas[14])
(e) Premises near to highway in dangerous state – Tarry v Ashton[15]
(f) Parking coaches on public highway – A orney-General v Gastonia
Coaches[16]
(g) Golf course to close to public road – Castle v St Augus ne Links [17]
Remedies for Nuisance under Law of Torts
Damages-
Depending upon the gravity of inconvenience suffered by the aggrieved party,
the Court may direct the defendant to pay propor onate damages to the
former. Such Damages may include both monetary and material compensa on.
Injunc on-
If in the eyes of Law, monetary or material relief shall not be sufficient to
provide jus ce and equity to the aggrieved Party, the Court may direct the
Defendant to stop with the work that causes such Nuisance. Injunc on may be
Temporary or Permanent depending upon the facts of the case.
Abatement-
This is synonymous to a summary trial, where the Plain ff by himself may
remove the act of Nuisance without seeking to the courts. This must, however,
be lawful and not otherwise.
Defences against Nuisance under Law of Torts
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Following are the valid and legally recognized defence against the ac on of
Nuisance-
Prescrip on
As per Sec on 26 of Limita ons Act and Sec on 15 of the Easements Act, the
Plain ff cannot claim measures for Nuisance against the ac ons of the
Defendant, even if they are prima facie contrary, if the Defendant has
con nued to do the same ac on without any interrup on from the same
plain ff for the past 20 years.
In Elliotson v. Feetham[18], it was held that the Defendant has obtained
tyrannical rights to con nue malodorous trade as he con nued to do so for the
past 20 years without any interference from the Plain ff.
However, in Mohinimohan v. Kashinath Roy[19], it was held that there is no
authority to con nue kirtans can be acquired on other’s land despite the
tradi ons.
Statutory Authority
Where a statute or Law has empowered the ac on in a par cular way, the
plain ff cannot prosecute the defendant for Nuisance, even if the act comes
under the purview of the same. Statutory Authority may be Condi onal or
Absolute[20].
In Vaughan v. Taff Rly[21], the act of the defendant of building the locomo ve
lines, under the statutory authority, prevented the Plain ff from taking any
ac on against the former, despite the damage suffered by the la er.
De-Minimis Non-Curat Lex
An Ac on for damages against the defendant cannot be brought if it is shown
that the Plain ff is extra sensi ve and an otherwise prudent person would not
complain of such non-substan ve trifle.
Excep ons to Defences against Nuisance under Law of Torts
In spite of the various defences available to the Defendant, he cannot claim the
following if an ac on for nuisance is brought against him-
1. It is no defence to claim that the Plain ff himself came to the place of
Nuisance.
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2. It is no defence to claim that all reasonable care had been adopted by the
defendant to prevent the act of Nuisance interrupt or harm the Plain ff.
3. It is no defence to claim that there are others as well who commit Nuisance
against the Plain ff and that the defendant is not the sole wrongdoer.
4. It is no defence to claim that the act of Nuisance is for the benefit of Public
and affects nega vely to the Plain ff only.
Conclusion
The no on of nuisance relates to the regular ac vi es of an individual. The
laws made against Nuisance are almost conven onal except the criminal aspect
of Public Nuisance. Nuisance as a tort gained breadth through a surfiet of
judgments along with the works of many eminent jurists. India was once a
Bri sh colony has counted widely on the English judgments to understand and
develop the concep on of this tort. However, it has also amended and
modified various aspects of interpreta on, depending upon its own
geographical, cultural and economic diversity in order to strive for delivering
jus ce to almost each of its people and maintain the reign of Rule of Law along
with Jus ce, Equity and Good Conscience.

CH-3 LEGAL REMEDIES: JUDICIAL AND EXTRA-JUDICIAL.

Remedies for Torts

1- Judicial Remedies: These are the remedies for torts that the courts of law
provide to an aggrieved party.
2- Extra judicial Remedies: If the injured party takes the law in their own hand
(albeit lawfully), the remedies for torts are called extra-judicial remedies.
Judicial Remedies for Torts
As the term suggests, these are the remedies for torts that the courts of law
provide to an aggrieved party. Judicial remedies are of three main types:
1-Damages
2-Injunc on
3-Specific Res tu on of Property
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Damages
Damages, or legal damages is the amount of money paid to the aggrieved party
to bring them back to the posi on in which they were, before the tort had
occurred. They are paid to a plain ff to help them recover the loss they have
suffered. Damages are the primary remedy in a cause of ac on for torts. The
word “damages” should not be confused with the plural of the word “damage”,
that generally means ‘harm’ or ‘injury’.The fundamental principle applied to
the assessment of an award of damages is that the claimant should be fully
compensated for his loss. He is en tled to be restored to the posi on that he
would have been in, had the tort not been commi ed, insofar as this can be
done by the payment of money.
Types of Damages
1- Nominal Damages – Nominal damages are those in which even though the
plain ff has suffered a legal injury at the hands of the defendant, there is no
actual suffered by him. These damages are provided in the cases of Injuria sine
damno in which the Court recognises the viola on of the right of the plain ff
but the amount of damages are so nominal or low because of no actual loss to
the plain ff.
In the case of Constan ne v. Imperial London Hotels Ltd[1]., The plain ff was a
cricketer from West Indies who had gone to the defendant hotel to stay but he
was rejected on the basis of his na onality, therefore, the plain ff stayed at
another hotel and did not suffer any actual damage. In the case brought by
him, the defendant was held liable because the plain ff’s legal right was
violated despite no actual injury happening and they had to pay nominal
damages of five guineas.
In the case of Ashby v. White (1703) 92 ER 126[2], the plain ff was prevented
from vo ng by the defendant and the candidate for whom the plain ff was
going to vote s ll won. The plain ff sued the defendant. It was held that even
though no actual damage was suffered by the plain ff, the defendant was s ll
liable for preven ng him from exercising his legal right to vote and thus
nominal damages were awarded in this case.
2- Contempuous Damages– In these type of damages, the Court recognises
that the right of the plain ff is violated but to show that the suit brought by the
plain ff is of such a trivial nature that it has only wasted the me of the Court,
the Court awards a meagre amount to the plain ff as damages. This is similar
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to the nominal damages but the only difference between the two is that in
nominal damages the plain ff suffers no actual loss and in contemptuous
damages, the plain ff suffers actual damage but it is a trivial one in which he
does not deserves to be fully compensated.
Illustra on: If A’s dog enters B’s house and relieves himself and B accidentally
steps on it and is disgusted and thus, he brings a suit against A, the Court will
rule in B’s favour but because of such a trivial nature of this case the damages
awarded by the Court will be of a meagre amount.
3. Compensatory Damages –Compensatory damages are awarded to help the
plain ff to reach his original posi on at which he was before the tort was
commi ed against him. These damages are not awarded to punish the
defendant but to restore the plain ff to his previous situa on. These damages
are very helpful in cases of monetary losses in which the amount of loss can be
easily calculated and therefore that amount can be ordered to be paid to the
plain ff so that he can replace the damaged product or goods with such
amount.
Illustra on: K takes T’s bike and due to his rash driving the bike gets damaged.
Here K can be awarded compensatory damages in which the amount for
repairing the bike will be payable to K by T so that the bike’s condi on can be
restored back to its original state.
4. Aggravated Damages -These damages are awarded for the extra harm which
is caused to the plain ff which cannot be compensated by the compensatory
damages and it is given for factors such as the loss of selfesteem, pain and
agony suffered by the plain ff etc. which cannot be calculated in monetary
terms. These damages are therefore addi onal damages which are awarded to
the plain ff other than the damages awarded for his pecuniary loss.
Illustra on: A makes false claims against B as a result of which B’s standing in
the society is greatly affected and he is also ridiculed by people which leads to
him losing his self-confidence and self-esteem. Here Court can award B
aggravated damages for the humilia on and loss of confidence because of his
suffering which is caused by A’s act.
5. Puni ve Damages – These damages are also known as exemplary damages
and the purpose of these damages is to punish the defendant and to make an
example of him so that others are deterred from commi ng the same act as
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he did. Thus, whenever a Court feels that the act of the defendant was severely
gross, it awards puni ve damages against him to the plain ff.
Illustra on: A company adver ses that its pill will help in quick weight loss and
is made up of natural ingredients, as a result, the plain ff purchases it. But due
to the pills containing certain chemicals, it makes the plain ff severely ill. Here
the Court can not only allow compensatory damages to the plain ff but
because of the company’s false claims, it can also award puni ve damages so
that it does not repeat the act again.
6- General and Specific Damages- When there is a direct link between the
defendant’s wrongful act and the loss suffered by the plain ff. For instance, a
person A, due to his negligence, collides his car with a person B, who has a rare
bone condi on. In this case, the actual damage suffered by the plain ff will be
compensated, not taking into account the rare bone condi on of the plain ff.
General damages are ascertained by calcula ng the amount of actual loss
suffered by the plain ff. For e.g, physical pain and loss caused due to it, or if
the quality of life of the plain ff is lowered.
Special damages are awarded by proving special loss. There is no straitjacket
formula to derive the actual amount. The plain ff just has to prove the loss
suffered by him/her. For e.g., medical expense, loss of wage (prospec ve),
repair or replacement of lost or damaged goods/property.
Remoteness of ‘Damage’
As discussed above, the main aim is to bring the aggrieved party back to the
status quo, that is, compensa ng the plain ff. As a general rule, damage
suffered by the plain ff should be a direct consequence of the defendant’s act.
Any ac on can have mul ple following consequences. A person cannot be held
accountable for all the consequences resul ng from his act. The remoteness of
consequences resul ng from a person’s act has been an issue of debate in
the Law of Torts over the years. Various tests were developed over me to
determine what consequences of an act can a person be held liable for. When
there is no cause and effect rela onship between the defendant’s act and the
injury caused to the plain ff, the damage is said to be too remote to be
compensated.
Re Polemis Case (Re Polemis & Furness, Withy & Co Ltd)[3]
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In this case, Polemis, the plain ff owned a cargo ship that they had chartered
to the defendants. While unloading cargo from the ship, the defendant’s
employees accidentally knocked a plank into the ship, which caused a spark to
ignite, that resulted in an explosion. The ques on before the court was,
whether the damage due to the explosion was a direct result of the act of the
defendant’s employee.
Leisboch Case (Liesbosch Dredger v SS Edison)[4]
In this case, the plain ff’s dredger was damaged and sunk by the defendants
(Edison), due to their negligence. The dredger was working under a contract
with the terms that some amount had to be paid if the work was not
completed on me. The plain ff did not have enough funds to arrange a new
dredger to complete the said work. They claimed all the resul ng damages. The
court held that the plain ff’s own lack of funds cannot be compensated by the
defendants.
Injunc on
Injunc on is an equitable remedy available in torts, granted at the discre on of
the court. An equitable remedy is one in which the court, instead of
compensa ng the aggrieved party,asks the other party to perform his part of
the promises. So, when a court asks a person to not con nue to do something,
or to do something posi ve so as to recover the damage of the aggrieved party,
the court is gran ng an injunc on. A very simple example is that of a court
ordering a company of builders to build on a land near a hospital, for the
construc on sounds may be crea ng a nuisance to the hospital.
An injunc on is an order of a court that restrains a person from con nuing the
commission of a wrongful act, or orders the person to commit a posi ve act to
reverse the results of the wrongful act commi ed by him, that is, to make good
what he has wrongly done. To receive injunc on against a party one must
prove damage or the possibility of prospec ve damage (apprehended
damage). An injunc on can be temporary or permanent, and mandatory or
prohibitory. Let us discuss each of them one by one. Law rela ng to injunc ons
is found in the Code of Civil Procedure, 1908 and from Sec on 37 to Sec on 42
of the Specific Relief Act (henceforth referred to as the Act), 1963.
A suit of injunc on can be filed against any individual, group or even the State.
According to the Sec on 37 of the Act there are two types of injunc ons–
temporary and perpetual (permanent).
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Case- M/S. Hindustan Pencils Pvt. Ltd. vs M/S. India Sta onery Products[5]
In this case, the plain ff filed a suit for perpetual injunc on against M/s. India
Sta onery Products for infringement of their trademark on their product
‘Nataraj’, in respect of pencils, pens, sharpners, erasers, etc, claiming that the
trademark was adopted by them in 1961, and that the defendants had wrongly
got themselves registered a copyright similar to them. The court ruled in favour
of the plain ff gran ng the defendant an interim injunc on.
Specific res tu on of property
The third judicial remedy available in the Law of Torts is that of Specific
Res tu on of Property. Res tu on means restora on of goods back to the
owner of the goods. When a person is wrongfully dispossessed of his property
or goods, he is en tled to the restora on of his property.
Extra Judicial Remedies for Torts
When a person can lawfully avoid or remedy himself without the interven on
of courts, these remedies for torts are called extra-judicial remedies for torts.
In this, the par es take the law in their own hands.Extra Judicial Remedies for
torts refers to those remedies where an aggrieved person can take such ac ons
that can undo the damage that has happened to him, without the court’s
interven on. There are 5 types of extra judicial remedies for torts that are
available to people who have suffered from some civil wrong. These include
Expulsion of Trespasser, Right of Re-entry on Land, Right of Re-cap on of
Goods, Abatement of Nuisance and Distress Damage Feasant.
1- Expulsion of trespasser- A person can use a reasonable amount of force to
expel a trespasser from his property. The two requirements are: The person
should be en tled to immediate possession of his property.
The force used by the owner should be reasonable according to the
circumstances.
Illustra on : A trespasses into B’s property. B has the right to use reasonable
force to remove him from his property and re-enter himself.
2- Re-entry on land- the owner of a property can remove the trespasser and re
enter his property, again by using a reasonable amount of force only.
3- Re-cap on of goods The owner of goods is en tled to recapture his/her
goods from any person whose unlawful possession they are in. Re-cap on of
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goods is different from specific res tu on in that it is an extra-judicial remedy,

in which the person need not ask the court for assistance, instead, takes the
law in his own hands.
Illustra on: If A wrongfully acquires the possession of B’s goods, B is en tled to
use reasonable force to get them back from A.
4- Abatement- In case of nuisance, be it private or public, a person (the injured
party) is en tled to remove the object causing nuisance.
Illustra on: A and B are neighbours. Branches of a tree growing on A’s plot
enter B’s apartment from over the wall. A er giving due no ce to A, B can
himself cut or remove the branches if they’re causing him nuisance.
5- Distress Damage Feasant- Where a person’s ca le/other beasts move to
another’s property and spoil his crops, the owner of the property is en tled to
take possession of the beasts un l he is compensated for the loss suffered by
him.
Conclusion for Remedies for Torts
In torts, the object behind remedying a party is to take the aggrieved party
back to the status or posi on that they were enjoying before the occurrence of
tort. It is not to punish the defendant, as in crime. Remedies for torts can be
judicial and extrajudicial. When due process of law is required for a party to
gain remedy, and the courts are involved, the remedies are called judicial
remedies. When the law is taken in his/her own hands by the par es, they are
called extra-judicial remedies.

UNIT-5

CH-1 MOTOR VEHICLES ACT 1988

What is the Motor Vehicles Act?

The Motor Vehicles Act encompasses all regula ons pertaining to road
transport vehicles as established by the Parliament of India. It covers various
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provisions related to the Driving Licence (DL), vehicle registra on, traffic
regula ons, traffic viola ons, penal es, motor insurance, liabili es, and more.
The Indian Motor Vehicles Act was ini ally enacted in 1988. However, the
Indian government introduced the Motor Vehicles (Amendment) Bill in 2017
a er consul ng with state transport ministers. This bill was successfully passed
in July 2019 and became effec ve on September 1, 2019.
Features of The Motor Vehicles (Amendment) Act, 2019
The Motor Vehicles (Amendment) Act, 2019 introduced several significant
features and amendments to the exis ng Indian Motor Vehicles Act of 1988.
These changes aimed to enhance road safety, improve traffic management, and
streamline various processes related to licencing, registra on, and
enforcement. Some of the key features of the Motor Vehicles (Amendment)
Act, 2019 are as follows.
 Stricter Penal es: The amended Act introduced higher penal es and
fines for various traffic viola ons. Offences such as overspeeding,
dangerous driving, drunk driving, and not wearing seat belts or helmets
now a ract significantly higher fines compared to the previous penal es.
 Road Safety: The Act emphasises road safety measures by focusing on
the use of safety equipment. It made it mandatory for all passengers,
including those in the rear seats, to wear seat belts. Addi onally, it
mandated the use of child restraints for children travelling in vehicles.
 Electronic Monitoring and Enforcement: The amended Act promotes
the use of technology for improved traffic monitoring and enforcement.
It allows for the use of electronic surveillance systems such as CCTV
cameras, speed cameras, and red-light cameras to detect traffic
viola ons.
 Recogni on of Online Pla orms: The Act recognised online pla orms for
various processes, such as obtaining Driving Licences, vehicle
registra ons, and permits. This move aimed to simplify and streamline
these processes, making them more accessible and convenient for the
public.
 Stricter Penal es for Juvenile Offenders: The Act introduced provisions
for imposing stricter penal es on juvenile offenders involved in
accidents. The registra on of the vehicle involved in the accident can be
89 | P a g e

cancelled, and the juvenile offender may be tried under the Juvenile
Jus ce Act.
 Good Samaritan Protec on: To encourage people to come forward and
assist accident vic ms, the Act provides legal protec on to "Good
Samaritans" who provide emergency medical or non-medical assistance
to the injured.
 Na onal Transporta on Policy: The amended Act introduced the
concept of a Na onal Transporta on Policy. This policy aims to provide a
framework for the development and regula on of transport systems,
addressing issues related to public transporta on, last-mile connec vity,
and mul modal transport.
 Motor Vehicle Accident Fund: The Act established a Motor Vehicle
Accident Fund to provide compulsory insurance coverage to all road
users in India. This fund helps compensate vic ms of hit-and-run cases,
uninsured vehicles, and accidents caused by uniden fied vehicles.
Motor Vehicles Act: Key Provisions and Road Safety Measures
Here are the key provisions and road safety measures as per The Motor
Vehicles Act of 1988.
Licencing and Registra on
 Procedure for obtaining a Driving License and vehicle registra on.
 Mandatory tests and qualifica ons for obtaining a Driving licence.
 Vehicle registra on requirements and the role of Regional Transport
Offices (RTOs).
Traffic Regula ons and Road Rules
 Speed limits, lane discipline, and overtaking regula ons.
 Traffic signals and their significance in maintaining road safety.
 Rules regarding the use of seat belts, helmets, and child restraints.
 Prohibi on of mobile phone usage while driving.
Vehicle Safety Standards
 Vehicle manufacturing standards and cer fica on requirements.
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 Mandatory installa on of safety features such as seat belts, airbags, and

an -lock braking systems.
 Emission norms and pollu on control measures.
Penal es and Offences
 Classifica on of traffic viola ons and corresponding penal es.
 Imposi on of fines and penal es for various offences, including drunk
driving, overspeeding, and overloading.
 Traffic viola on points system for repeat offenders.
Traffic viola ons under The Motor Vehicles (Amendment) Act, 2019
The Motor Vehicles (Amendment) Act, 2019 introduced stricter penal es and
fines for various traffic viola ons in India. The following is a list of some key
viola ons as per the amended Act.
 Overspeeding: Driving a vehicle at a speed exceeding the permissible
limits as specified by the authori es.
 Drunk Driving: Opera ng a motor vehicle under the influence of alcohol,
drugs, or any other intoxica ng substances.
 Dangerous Driving: Driving in a rash or negligent manner that endangers
the life, limb, or property of others on the road.
 Not Wearing Seat Belts: Failing to wear a seat belt while driving or
travelling as a passenger in a vehicle.
 Not Wearing Helmets: Riding a two-wheeler without wearing a helmet,
both for the rider and the pillion.
 Using Mobile Phones While Driving: Use a mobile phone or any
handheld electronic device while driving unless it is a case of an
emergency.
 Jumping Traffic Signals: Disregarding traffic signals, including red lights,
and crossing intersec ons without following the prescribed rules.
 Viola ng Lane Discipline: Improper lane usage, including frequent lane
changes without proper indicators or without adhering to designated
lanes.
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 Overloading of Vehicles: Carrying more passengers or goods than the

permissible limit specified for the vehicle, leading to overcrowding or
unbalanced loads.
 Not Giving Way to Emergency Vehicles: Failing to yield or give way to
emergency vehicles such as ambulances, fire trucks, or police vehicles
with sirens or flashing lights.
 Unauthorised Use of Vehicles: Using a vehicle without lawful authority
or without a valid licence or permit.
 Driving Without Insurance: Opera ng a motor vehicle without a valid
insurance policy or third-party liability coverage.
 Viola ng Pollu on Norms: Non-compliance with the prescribed
emission standards, leading to excessive pollu on from the vehicle.
It is important to note that the penal es for these viola ons may vary based on
the severity of the offence and subsequent amendments to the Act. The Motor
Vehicles (Amendment) Act, 2019 introduced higher fines and penal es
compared to the previous legisla on to promote road safety and discourage
traffic viola ons.
Updated Traffic Fines as per The Motor Vehicles (Amendment) Act, 2019
The following table provides more informa on about the updated fines for
traffic viola ons as per The MV Act 2019.

Fine as
per MV
Traffic Viola on Fine as per MV Act, 2019 (in Rs.) Act,
1988 (in
Rs.)

First offence: 10,000 and/or

Riding or driving imprisonment of 6 months (Second
2,000
when intoxicated offence: 15,000 and/or imprisonment
of 2 years)
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Riding or driving
First offence: 5,000 (Second offence:
without vehicle -
10,000)
registra on

Riding or driving 5,000 as a penalty and/or community

500
without a DL service

First offence: 2,000 and/or

imprisonment of 3 months and/or
Riding or driving
community service (Second offence: 1,000
without insurance
4,000 and/or imprisonment of 3
months and/or community service)

First offence: 5,000 and/or

imprisonment of 3 months (Second
Racing or speeding 500
offence: 10,000 and/or imprisonment
up to 1 year or community service)

Light Motor Vehicle (LMV): 2,000 -

Overspeeding Medium/Heavy Passenger Vehicle: 400
2,000 to 4,000 along with DL seizure

Road regula on
500 to 1,000 100
viola ons

Not wearing a 1,000 and the possibility of

100
seatbelt while driving community service

Riding without a 1,000 and/or DL disqualifica on

helmet (rider and and/or 3 months of community 100
pillion) service
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2000, licence disqualifica on and the

Overloading a two-
possibility of community service for 3 100
wheeler
months

Using a mobile phone

5,000 1,000
while riding or driving

First offence: 1,000 to 5,000 and/or

imprisonment of 6 months to 12
Dangerous riding or months and the possibility of DL 100 to
driving seizure (Second offence: 10,000 300
and/or 2 years imprisonment and the
possibility seize of DL)

2,000
and
Overloading a heavy 20,000 and 2,000 per extra tonne and
1,000
goods vehicle the possibility of community service
per extra
tonne

Riding or driving even 10,000 and the possibility of

500
a er disqualifica on community service

Not obeying orders

2,000 500
given by authori es

5,000 to 10,000 and the possibility of

Oversized vehicle -
community service

Blowing horn in a First offence: 2,000 (Second offence:

-
silent zone 4,000)
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25,000 and/or up to 3 years of

imprisonment for vehicle
Juvenile viola ons -
owner/guardian. Juvenile is not
eligible to get a DL un l 25-years-old

An enforcing
Double the penalty (depending on the
authority commi ng -
type of traffic viola on)
an offence

Not le ng emergency
vehicles pass, such as 10,000, and the possibility of
500
fire engines, community service
ambulances, etc.

What is the reason behind the increase in fines for traffic viola ons?
The disregard for safety protocols while driving is a ma er of great concern.
Viola ons like failing to wear seat belts or entering restricted areas pose
significant risks to road users. By increasing the penal es for traffic viola ons,
there is a greater likelihood of individuals taking the laws and regula ons more
seriously.

CH-2 CONSUMER PROTECTION ACT 2019

Consumer Protec on Act, 2019

The new Consumer Protec on Act was passed by Parliament in 2019. It came
into force in July 2020 and replaced the Consumer Protec on Act, 1986.
Read about the important acts in India from the linked ar cle.
Given below is a gist of the Consumer Protec on Act, 2019:

Enactment August 9, 2019

Date:
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Act Year: 2019

Short Title: The Consumer Protec on Act, 2019

Long Title: An Act to provide for protec on of the interests of consumers and
for the said purpose, to establish authori es for mely and effec ve
administra on and se lement of consumers’ disputes and for
ma ers connected therewith or incidental thereto

Ministry: Ministry of Consumer Affairs, Food and Public Distribu on

Department: Department of Consumer Affairs

Need for the new act:

 The Digital Age has ushered in a new era of commerce and digital
branding, as well as a new set of customer expecta ons. Digi sa on has
provided easy access, a large variety of choices, convenient payment
mechanisms, improved services and shopping as per convenience.
However, there are also associated challenges related to consumer
protec on.
 To help address the new set of challenges faced by consumers in the
digital age, the Indian Parliament passed the landmark Consumer
Protec on Bill, 2019 which aims to provide mely and effec ve
administra on and se lement of consumer disputes.
Consumer Protec on Act 2019 Details:
 Consumer Protec on Act, 2019 is a law to protect the interests of the
consumers. This Act provides safety to consumers regarding defec ve
products, dissa sfactory services, and unfair trade prac ces.
 The basic aim of the Consumer Protec on Act, 2019 is to save the rights
of the consumers by establishing authori es for mely and effec ve
administra on and se lement of consumers’ disputes.
Rights of the consumers:
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 Consumers have the right to informa on on various aspects of goods and

services. This could be informa on about the quan ty, quality, purity,
potency, price, and standard of goods or services.
 To be protected from hazardous goods and services. Right to protec on
against goods and services that can be dangerous to life and property.
 To be protected from unfair or restric ve trade prac ces.
 Consumers have the right to access a variety of goods and services at
compe ve prices.
 Consumers should have the right to redressal.
Salient Provisions of the Consumer Protec on Act 2019
New defini on of consumer:
 The new Act has widened the defini on of ‘consumer’.
Defini on of consumer:
 As per the Act, a person is called a consumer who avails the services and
buys any good for self-use. Worth to men on that if a person buys any
good or avails any service for resale or commercial purposes, he/she is
not considered a consumer. This defini on covers all types of
transac ons i.e. offline and online through teleshopping, direct selling or
mul -level marke ng.
Central Consumer Protec on Authority:
 The Act proposes the establishment of the Central Consumer Protec on
Authority (CCPA) as a regulatory authority.
 The CCPA will protect, promote and enforce the rights of consumers and
regulate cases related to unfair trade prac ces, misleading
adver sements, and viola on of consumer rights.
 CCPA would be given wide-ranging powers.
 The CCPA will have the right to take suo-moto ac ons, recall
products, order reimbursement of the price of goods/services,
cancel licenses, impose penal es and file class-ac on suits.
 The CCPA will have an inves ga on wing to conduct independent
inquiry or inves ga on into consumer law viola ons.
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To get the List of important Acts that Transformed India for the upcoming UPSC
exam prepara on, candidates can visit the linked ar cle.
Consumer Disputes Redressal Commission:
 The Act has the provision of the establishment of Consumer Disputes
Redressal Commissions (CDRCs) at the na onal, state and district levels
to entertain consumer complaints.
 As per the no fied rules, the State Commissions will furnish informa on
to the Central Government on a quarterly basis on vacancies, disposal,
the pendency of cases and other ma ers.
 The CDRCs will entertain complaints related to:
 Overcharging or decep ve charging
 Unfair or restric ve trade prac ces
 Sale of hazardous goods and services which may be hazardous to
life.
 Sale of defec ve goods or services
 As per the Consumer Disputes Redressal Commission Rules, there will be
no fee for filing cases up to Rs. 5 lakh.
E-Filing of Complaints:
 The new Act provides flexibility to the consumer to file complaints with
the jurisdic onal consumer forum located at the place of residence or
work of the consumer. This is unlike the earlier condi on where the
consumer had to file a complaint at the place of purchase or where the
seller has its registered office address.
 The new Act also contains enabling provisions for consumers to file
complaints electronically and for hearing and/or examining par es
through video-conferencing.
 Consumers will also not need to hire a lawyer to represent their cases.
Product Liability & Penal Consequences:
 The Act has introduced the concept of product liability.
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 A manufacturer or product service provider or product seller will

now be responsible for compensa ng for injury or damage caused
by defec ve products or deficiency in services.
 This provision brings within its scope, the product manufacturer, product
service provider and product seller, for any claim for compensa on. The
term ‘product seller’ would also include e-commerce pla orms.
Penal es for Misleading Adver sement:
 The CCPA may impose a penalty on a manufacturer or an endorser, for a
false or misleading adver sement. The CCPA may also sentence them to
imprisonment.
Provision for Alternate Dispute Resolu on:
 The new Act provides for media on as an Alternate Dispute Resolu on
mechanism. For media on, there will be a strict meline fixed in the
rules.
 As per the recently no fied rules, a complaint will be referred by a
Consumer Commission for media on, wherever scope for early
se lement exists and par es agree to it. The media on will be held in
the Media on Cells to be established under the aegis of the Consumer
Commissions. There will be no appeal against se lement through
media on.
Unfair Trade Prac ces:
 The new Act has armed the authori es to take ac on against unfair trade
prac ces too.
 The Act introduces a broad defini on of Unfair Trade Prac ces, which
also includes the sharing of personal informa on given by the consumer
in confidence unless such disclosure is made in accordance with the
provisions of any other law.
The Central Consumer Protec on Council:
 The Consumer Protec on Act empowers the Central Government to
establish a Central Consumer Protec on Council. It will act as an advisory
body on consumer issues.
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 As per the no fied Central Consumer Protec on Council Rules, the

Central Consumer Protec on Council would be headed by the
Union Minister of Consumer Affairs, Food and Public Distribu on
with the Minister of State as Vice Chairperson and 34 other
members from different fields.
 The Council, which has a three-year tenure, will have a Minister-in-
charge of consumer affairs from two States from each region –
North, South, East, West, and NER. There is also a provision for
having working groups from amongst the members for specific
tasks.
Applicability:
 This Act is applicable to all the products and services, un l or unless any
product or service is especially debarred out of the scope of this Act by
the Central Government.
Aspirants can read about different rights available to Indian ci zens from the
links given below:

Right to Equality Right to Freedom

Right to Life (Ar cle 21) Right against Exploita on

Right to Freedom of Religion Cultural and Educa onal Rights

Right to Cons tu onal Remedies (Ar cle 32) –

Consumer Protec on Act 2019 Significance:

Empowering consumers:
 The new Act will empower consumers and help them in protec ng their
rights through its various rules and provisions. The new Act will help in
safeguarding consumer interests and rights.
 Consumer-driven businesses such as retail, e-commerce would
need to have robust policies dealing with consumer redressal in
place.
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 The new Act will also push consumer-driven businesses to take

extra precau ons against unfair trade prac ces and unethical
business prac ces.
Inclusion of the e-commerce sector:
 The earlier Act did not specifically include e-commerce transac ons, and
this lacuna has been addressed by the new Act.
 E-commerce has been witnessing tremendous growth in recent
mes. The Indian e-commerce market is expected to grow to US$
200 billion by 2026.
 The Act also enables regula ons to be no fied on e-commerce and
direct selling with a focus on the protec on of interests of consumers.
This would involve rules for the preven on of unfair trade prac ces by e-
commerce pla orms.
 As per the no fied rules, every e-commerce en ty is required to
provide informa on rela ng to return, refund, exchange, warranty
and guarantee, delivery and shipment, modes of payment,
grievance redressal mechanism, payment methods, the security of
payment methods, charge-back op ons, etc. including country of
origin which are necessary for enabling the consumer to make an
informed decision at the pre-purchase stage on its pla orm.
 The e-commerce pla orms will have to acknowledge the receipt of
any consumer complaint within forty-eight hours and redress the
complaint within one month from the date of receipt under this
Act. This will bring e-commerce companies under the ambit of a
structured consumer redressal mechanism.
 E-commerce en es that do not comply will face penal ac on.
Time-bound redressal:
 A large number of pending consumer complaints in consumer courts
have been common across the country. The new Act by simplifying the
resolu on process can help solve consumer grievances speedily.
 A main feature of the Act is that under this, the cases are decided in a
limited me period.
Responsible endorsement:
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 The new Act fixes liability on endorsers considering that there have been
numerous instances in the recent past where consumers have fallen prey
to unfair trade prac ces under the influence of celebri es ac ng as
brand ambassadors.
 This will make all stakeholders – brands, agencies, celebri es, influencers
and e-commerce players – a lot more responsible. The new Act would
force the endorser to take the onus and exercise due diligence to verify
the veracity of the claims made in the adver sement to refute liability
claims.
Upholding consumer interests:
 For the first me, there will be an exclusive law dealing with Product
Liability.
 Product liability provisions will deter manufacturers and service
providers from delivering defec ve products or deficient services.
 The new legisla on empowers the Na onal Consumers Dispute
Redressal Commi ee as well as the State Commission to declare null and
void any terms of a contract while purchasing a product. This will go a
long way in protec ng consumers, who are o en subject to contract
condi ons that favour a seller or manufacturer.
Alternate dispute redressal mechanism:
 The provision of Media on will make the process of dispute adjudica on
simpler and quicker.
 This will provide a be er mechanism to dispose of consumer complaints
in a speedy manner and will help in the disposal of a large number of
pending cases in consumer courts across the na on.
Simplified process for grievance redressal:
 The new Act would ease the overall process of consumer grievance
redressal and dispute resolu on process. This will help reduce
inconvenience and harassment for the consumers.
 The enhanced pecuniary jurisdic on and provisions providing statutory
recogni on to media on processes, enabling filing of complaints from
any jurisdic on and for hearing par es through video-conferencing will
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increase accessibility to judicial forums and afford crucial protec on in

mes when interna onal e-commerce giants are expanding their base.
Read more about the Consumer Confidence Index (CCI) at the linked ar cle.
Consumer Protec on Act 2019 Concerns:
State regula on:
 As part of the Consumer Protec on Act, 2019, the Ministry of Consumer
Affairs will compile a code of conduct for adver sers and agencies, a
move designed to curb unfair prac ces and misleading claims. The
planned code will detail penal es for adver sers and their agencies and
publishers if misleading adver sing and false claims are found.
 There have been concerns that this approach would mark a move from
self-regula on to a more federated oversight.
Implementa onal challenges:
 The exis ng vacancies at the district commission level would undermine
the effec ve implementa on of the new Act.
Lack of differen ated approach:
 As per the proposed rules for the e-commerce businesses, companies
are not allowed to “manipulate the price” of goods and services offered
on their pla orms to gain unreasonable profit or discriminate between
consumers of the same class or make any arbitrary classifica on of
consumers affec ng their rights under the Act.
 The clause on the manipula on of price by e-commerce companies
appears irrelevant as some mes, the e-commerce companies would
want to reduce the price to enhance sales volume. For a country with
market size of around $25 billion, the guidelines should have taken a
deeper view of the e-commerce ecosystem, covering all prevailing
business models between consumers, marketplaces and sellers.

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IFTIKAR AHMED LASKAR

A.K.CHANDA LAW COLLEGE, SILCHAR
EMAIL: AHMEDIFTIKAR11@GMAIL.COM
PH.NO : 9707387858