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Microsoft Word - Law of Torts Sample

The document is a sample copy for a Law of Torts course at Kamkus College of Law, covering various legal concepts such as the maxim 'ubi jus ibi remedium', reasons for the slow development of tort law in India, distinctions between legal terms, and vicarious liability of the state. It discusses essential elements of negligence, defenses available against negligence claims, and relevant case laws. The content is structured in a question-and-answer format, providing concise legal explanations and examples.

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0% found this document useful (0 votes)
12 views32 pages

Microsoft Word - Law of Torts Sample

The document is a sample copy for a Law of Torts course at Kamkus College of Law, covering various legal concepts such as the maxim 'ubi jus ibi remedium', reasons for the slow development of tort law in India, distinctions between legal terms, and vicarious liability of the state. It discusses essential elements of negligence, defenses available against negligence claims, and relevant case laws. The content is structured in a question-and-answer format, providing concise legal explanations and examples.

Uploaded by

ukshopclub13
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KAMKUS COLLEGE OF LAW

B.A.LL.B. IIND SEM


LAW OF TORTS
CODE-(BL-2005)

SAMPLE COPY

Section A (VERY SHORT ANSWER QUESTIONS)

Q1.Discuss the maxim ubi jus ibi remedium?


ANS. ubi jus ibi remedium
 ‘Ubi jus ibi remedium’ is a latin maxim which means “where there is a right there is a remedy”. The word ‘Jus’
means the legal authority to do or demand something, and the word ‘remedium’ means the right of action in a
Court of law. Literal meaning of this maxim is that whenever there is a legal right, there is a legal remedy. It also
expresses that there is no wrong without a remedy.

 In the leading case of Ashby v. White, the Court observed, “When the law clothes a man with a right he must have
means to vindicate and maintain it and remedy if he is injured in the exercise and enjoyment of it, and it is a vain
thing to imagine a right without a remedy for want of right and want of remedy are reciprocal”

 The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium’. If a man has a right, “he must of
necessity have a means to vindicate and maintain it and a remedy if injured in the exercise or enjoyment of it; and
indeed it is a vain thing to imagine a right without a remedy; want of right and want of remedy are reciprocal. The

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maxim does not mean, as it is sometimes supposed, that there is a legal remedy for every moral or political wrong.
There are many moral and political wrongs which are not recognized by law and are therefore not actionable.

So, the maxim does not say that there is legal remedy for every wrong. Justice Stephen of England has rightly remarked that
the maxim would be more intelligibly and correctly stated if it were to be reversed to say that where there is no legal
remedy, there is no legal wrong.

Q2.What is the reasons for slow development of Law of Torts in India?

ANS. Reasons for slow development of Law of Torts in India:

1. Uncertainty of law: the law of torts is not a codified law and it is still developing. Due to the uncodified law there is
no uniformity and certainty in its rules and doctrines.
2. Lack of political consciousness: due to lack of political consciousness most of the people are not aware of their
rights. Political unconsciousness makes people subservient to their exploitator and violators of rights.
3. Illiteracy: a large part of the Indian population is still illiterate. Due to illiteracy they neither have knowledge of
their rights nor do they have courage to approach courts to seek remedy against violation of their rights.
4. Poverty: Poverty is another major factor for the lesser number of tort cases in India. Most part of the population of
India is economically backward and as a result of this they are not capable of meeting the high cost of litigation for
the enforcement of their rights.
5. Expensive and dilatory judicial system: the rate of court fee and lawyers’ fee is very high. Even small dispute takes
years to be disposed off.

Q3. Distinguish between injuria sine damnum and damnum sine injuria?

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Ans.

Basis Injuria sine damnum Damnum sine injuria

1. Meaning It means violation of a legal It means actual or substantial


right without actual loss or damages without infringement
damages. of a legal right.

2. Action It is always actionable. It is never actionable.

3. Nature of wrong It contemplates (consider) legal It contemplates only moral


wrongs where there is a wrongs without any remedy.
remedy.

4. Act of Defendant In, it defendant acts illegally to In, it defendant acts legally and
violate legal right of the thereby causes harm to the
plaintiff. plaintiff.

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Q4. Define Necessity?

ANS. NECESSITY

‘Necessity knows no law’. In order to avoid or avert a bigger loss or harm, a defendant can cause a lesser harm which is
justified. The act of defendant may be wrongful but if it is for preventing a major damage then he can plead this defence.

Essentials

The defendant acted to avoid a significant risk of harm.

His causing of harm should be justified.

Cases

 In kirk v. Gregory: A sister-in-law removed the jewellery from the body of a deceased because she thought it would
be unsafe and kept that in another room but it was stolen. The executors of the deceased filed a plaint against the
defendant but she pleaded the defence of necessity. Court held that defendant is liable as the act done was not
justified as there was no foreseeability of theft of jewellery.

 In Scott v. shepherd: The defendant Shepherd mischievously threw a burning squib into a crowded place. It fell on
the shed where Yates had his Gingerbread shop. A person named Willis picked up the squib in order to save
himself and the shop and threw it across the road but it fell on the shed of Royal, who in turn, picked it up and
threw it causing injury in the eye of Scott. Shepherd pleaded necessity because of intervention of Yates’s act. The
court rejected the plea of necessity and self-defence and held that the defendant (Shepherd) is liable.
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Q5. “Some poisonous plants grow up on the land of Z in his absence. The branches of the plants grow and cross the
boundary of his land and are eaten by horse of A. the horse dies in consequence thereof.” Discuss the liability of Z under
the rule in Rylands v. Fletcher.

ANS. Z will not be liable for liability in Ryland’s case there must be non-natural use of land, collection of dangerous thing
on the land and escape are necessary(Ryland v. Fletcher).

In Crownhurst v. Amershan Burail Board, (1878), the defendant has some poisonous plant on his property. Leaves from
the plant enter the property of the plaintiff and is eaten by his cattle, who as a result die. The defendant will be liable for the
loss. But on the other hand, if the cattle belonging to the plaintiff enter the premises of the defendant and eats the poisonous
leaves and die, the defendant would not be liable

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Section B (SHORT ANSWER QUESTIONS)

Q6.Discuss the Vicarious liability of the State for the Torts committed by its servants?

ANS. INTRODUCTION TO VICARIOUS LIABILITY OF STATE

 Rex non potest peccare (The king can do no wrong) is an ancient and fundamental principle of the English law
which means that if a tort was committed by the king or the king’s servant in the course of employment, the injured
had no right to sue the king under the vicarious liability. This immunity was only available in relation to torts, but
not for breach of contract and recovery of property.
 The courts in various decisions criticized this exemption, given to the king, opining that it was against the principles
of equity, good conscience and justice. Hence, the British parliament passed, The Crown Proceeding Act, 1947 by
abolishing the maxim, King can do no wrong. Now the king can be also be sued for his servants tortuous acts
committed in their course of employment under the principle of Respondent Superior.

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Position in India

In India, the crown assumed sovereignty of India in 1858 and took over the administration of India from the hands of the
company. The act declared that the secretary of India in council to be a body corporate for the purpose of suing and being
sued. This corporate was mentioned in Government of India Act, 1915 which declared in its section 32 stating that-

I. The secretary of state in council may sue and be sued by the name of Secretary of State in council as a body
corporate.
II. Every person shall have the same remedies against the secretary of state in council as he might have had against the
East India Company if the Government of India Act, 1858 and this act had not been passed.
III. This provision was again mentioned in section 176(i) of the Government of India Act, 1935 thus:

The federation may sue or be sued by the name of the federation of India and the provincial governments may sue or be
sued by the name of province and without prejudice to the subsequent provision of this chapter, may be, subject to any
provisions which may be made by the act of the federation or provincial legislature enacted by virtue of powers conferred
on that legislature by this act, sue or be sued, in relation to their respective affairs in the like case as the secretary of State
for India in council might have sued or been sued in this act has not been passed.

Constitutional Perspective

This provision has been incorporated in Article 300 (i) of the Constitution of India:

 The government of India may sue or be sued by the name of the union of India and the government of the state may
sue or be sued by the name of the state, and may subject to any provisions which may be made by act of parliament
or of the legislature of such state enacted by virtue of powers conferred by this Constitution, sue or be sued in

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relation to their respective affairs in the like cases as the domination of India and the corresponding Indian States
might have sued or been sued if the constitution had not been enacted.
 Neither the legislature of the states nor the parliament has made any law as contemplated by clause (1) of Article
300 of the Constitution of India. The present position is that the state would be liable for damages, if such suit could
be filed against the corresponding province.

Case Laws related government liability in tort

 The first leading case on the point is Peninsular and orientation steam navigation company v. Secretary of State
for India-in-Council In this case, the servant of the plaintiff company were proceeding on a highway in Calcutta
driving a carriage and passing by the Kidderpore dockyard which was a Government property. The servants were
carrying a piece of iron funnel in the center of the road. Due to negligence on the part of the defendants servant the
funnel fell down and its clang frightened the horse and it injured. The plaintiff sued the secretary of the state for
India in council for the damage.
An act was brought for the recovery of the damage of Rs.350 against the secretary of the state for India in Council,
as employer of the workmen. It was held that the maintenance of the dockyard was considered to be non sovereign
function and as such the government was held liable. As the impugned act fell within the non- sovereign functions,
the action was maintainable.

 2nd Case Secretary of State v. Cockraft


It was held that maintenance of the military road is a sovereign function and the government is not liable for the
negligence of its servant in stacking of gravel on a road which resulted in a carriage accident causing injuries to the
plaintiff.
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 3rd Case State of Rajasthan v. Vidyawati
In this case, a temporary employee of Rajasthan government while driving a government jeep car from workshop
after repairs knock down a pedestrian, by rash and negligent driving. The pedestrians sustained multiple injuries as
a result of which he died. In the suit by his widow against the State of Rajasthan for damages, the Supreme Court
held that the state was liable because the accident took place while the car was returning from workshop which was
not an act in the exercise of sovereign function.

Q7. What are the essential elements of tort of negligence? What are the defences available for an action of negligence?

ANS. INTRODUCTION AND MEANING

In everyday usage, the word negligence means mere carelessness. In legal sense it means failure to exercise standard of
care which the doer as a reasonable man should have exercised in the circumstances. In general it is a legal duty to take
care when it was reasonably foreseeable that failure to do so was likely to cause injury. Negligence is a mode in which
many kinds of harm may be caused by not taking such adequate precautions.

Definitions

Winfield and Jolowicz- According to them, negligence is a breach of legal duty to take care which results in damage,
undesired by the defendant to the plaintiff.

In Blyth v. Birmingham Water Works Co.1856, Alderson B defined negligence¦ it is the omission to do something which a
reasonable man would do, or doing something which a reasonable, prudent man would not do.

Essentials of Negligence
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In an action for negligence, the plaintiff has to prove the following essentials:-

I. Duty to take care– One of the essential conditions of negligence is duty to take care. In Grant v. Australian Knitting
Mills Ltd, the plaintiff purchased two sets of woolen underwear from a retailer and contacted a skin disease by
wearing an underwear. The woolen underwear contained excess of sulphates which the makers failed to remove
while washing them. The manufacturers were held liable.
II. Duty to whom– Donoghue v. Stevenson 1932 AC 562 carried the idea further and expanded the scope of duty
saying that the duty so raised extends to your neighbour. Explaining so as to who is my neighbor Lord Atkin said that
the answer must be the persons who are so closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am directing my mind to the acts or omission which are called in
question.
III. Duty must be towards the plaintiff – It is not sufficient that the defendant owed a duty of care towards the plaintiff.
It must also be established that the defendant owed a duty of care towards the plaintiff. Case– Bourhill v. Young
1943 AC 92.
IV. Breach of Duty to take care – Yet another essential condition for the liability in negligence is that the plaintiff must
prove that the defendant committed a breach of duty to take care or he failed to perform the duty. Case– Municipal
Corporation of Delhi v. Subhagvanti AIR 1966 SC 1750.
V. Consequential harm to the plaintiff – The harm may fall into the following classes:- a.) Physical harm b.) Harm to
reputation c.) Harm to property d.) Economic Loss e.) Mental Harm. In Achutrao Haribhau Khodwa v. State of
Maharastra 1996 2 SCC a cotton mop was left inside the body by the negligence of the doctor. The doctor was held
liable.

DEFENCES FOR NEGLIGENCE

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In an action for negligence following defences are available:-

1. CONTRIBUTORY NEGLIGENCE: It was the Common law rule that anyone who by his own negligence contributed to
the injury of which he complains cannot maintain an action against another in respect of it. Because, he will be considered
in law to be author of his wrong.

Butterfield v. Forrester, (1809) 11 East 60; the defendant had put a pole across a public thoroughfare in Durby, which he
had no right to do. The plaintiff was riding that way at 8’O clock in the evening in August, when dusk was coming on, but
the obstruction was still visible from a distance of 100 yards, he was riding violently, came against the pole and fell with the
horse. It was held that the plaintiff could not claim damages as he was also negligent.

2. ACT OF GOD OR VIS MAJOR: It is such a direct, violent, sudden and irresistible act of nature as could not, by any
amount of human foresight have been foreseen or if foreseen, could not by any amount of human care and skill, have been
resisted. Such as, storm, extraordinary fall of rain, extraordinary high tide, earth quake etc.

In Nichols v. Marsland, (1875) LR 10 Ex.255; the defendant had a series of artificial lakes on his land in the construction
or maintenance of which there had been no negligence. Owing to an exceptional heavy rain, some of the reservoirs burst
and carried away four country bridges. It wa held that, the defendant was not liable as the water escaped by the act of God.

3. INEVITABLE ACCIDENT: Inevitable accident also works as a defence of negligence. An inevitable accident is that
which could not possibly, be prevented by the exercise of ordinary care, caution and skill. It means accident physically
unavoidable.

In Brown v. Kendal, (1859) 6 Cussing 292; the plaintiff’s and defendant’s dogs were fighting, while the defendant was
trying to separate them, he accidentally hit the plaintiff in his eye who was standing nearby. The injury to the plaintiff was
held to be result of inevitable accident and the defendant was not liable.
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In Holmes v. Mather, (1875) LR 10 Ex.261, 267; a pair of horses were being driven by the groom of the defendant on a
public highway. On account of barking of a dog, the horses started running very fast. The groom made best possible efforts
to control them but failed. The horses knocked down the plaintiff who was seriously injured, it was held to be an inevitable
accident and the defendant was not liable.

In Stanley v. Powell, (1891) 1 QB 86; the plaintiff and the defendant, who were members of a shooting party, went for
pheasant shooting. The defendant fired at a pheasant, but the shot from his gun glanced off an oak tree and injured the
plaintiff. It was held that the accident was an inevitable accident and the defendant was not liable.

SECTION C (DETAILED ANSWER QUESTIONS)

Q8. Define “Defamation”, and explain the essential of defamation. What are the defences of tort of defamation?

ANS. INTRODUCTION

Reputation and honor are very precious to men than bodily safety and freedom. It may be dearer than life itself. So it is
needful for the peace and well-being of a civilized commonwealth that the law should protect the reputation as well as the
person of the citizen. In our law defamation is subjected to criminal proceedings, as endangering public order, or being
offensive to public decency or morality.

DEFINITION

 A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or
ridicule, or which tends to lower him in the esteem of right-thinking members of society. Black’s Law dictionary
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defines defamation as The taking from one’s reputation. The offense of injuring a person’s character, fame, or
reputation by false and malicious statements. The term seems to be comprehensive of both libel and slander.
 Defamatory statement in permanent form is libel. Libel is a written defamation. ‘libel’ includes written statement,
typed or lithographed material, raised letters, pictures, photograph, cinema film, caricature, statue, effigy, wax
model etc. It is an offence as well as wrong.
 Defamatory statement in transitory form is slander. It may be exemplified by verbal speech, nod, wink, shake of head,
smile, hissing and finger language of the deaf and the dumb etc.
 Libel is actionable per se whereas damage must be proved for slander, except in four instances: Where there is an
allegation that the claimant has committed an imprison able offence; Where there is an imputation that the claimant
is suffering from a contagious disease, such as venereal disease, leprosy, plague and, arguably, HIV/AIDS; Where
there is an imputation that a woman has committed adultery or otherwise behaved in an ‘unchaste’ fashion or
Where there is an imputation that the claimant is unfit to carry on his trade, profession or calling.
 Libel may be prosecuted as a crime as well as a tort, whereas slander is only a tort.

ESSENTIAL OF DEFAMATION

A person is liable for the defamation of another if the plaintiff is able to prove the following:

 that a statement was made about the plaintiff’s reputation, honesty or integrity that is not true;
 there was a publication to a third party (i.e., another person hears or reads the statement); and
 the plaintiff suffers damage as a result of the statement.

The statement must be defamatory and must tend to lower the claimant in the estimation of right-thinking members of
society generally, and in particular cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem.
Mere general abuse spoken no action lies. spoken words which are prima facie defamatory are not actionable if it is clear
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that they were uttered merely as general vituperation and were so understood by those who heard them. Sometimes a
statement may not be defamatory on the face of it but contain an innuendo, which has a defamatory meaning and this
statement may be actionable.

The statement must refer to the claimant either directly or indirectly.

The statement must be published, i.e communicated, to a person other than the claimant.

Consent of the claimant to the publication of a statement, by showing other people defamatory material which the defendant
meant for the claimant only, will create a situation in which technically there has been no publication.

DEFENCES

i. Truth

If the statement is true is a complete defence.[10] But it must be true as a whole as well as in parts. The burden of proof is
on the defendant to prove that the statement made is true, rather than on the claimant to prove that it was false.

ii. Fair comment on a matter of public interest

The defence of fair comment is designed to protect statements of opinion on matters of public concern.[11] The defence only
applies to comments made on matters of public interest. Where there are imputations partly based on fact and partly
expressions of opinion, the defence of fair comment will not fail merely because the truth of every allegation of fact is not
proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words
complained of as are proved.

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iii. Privilege

absolute

In certain cases law regards freedom of speech as essential, and provides a defence of absolute privilege which can never
be defeated, no matter how false or malicious the statements may be. They are ‘absolutely privileged’ and protected from
defamation proceedings.

Example of such privileges are,

 Statements made in either House of Parliament.


 Parliamentary papers of an official nature, ie, papers, reports and proceedings which Parliament orders to be
published
 Statements made in the course of judicial proceedings or quasi-judicial proceedings
 Communications between lawyers and their clients
 Statements made by officers of state to one another in the course of their official duty

Qualified

Qualified privilege operates only to protect statements which are made without malice ie, spitefully, or with ill-will or
recklessness as to whether it was true or false

Examples of such privileges that are protected are:

 Statements made in pursuance of a legal, moral or social duty.


 Statements made in protection of an interest either public or private interest.

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DEFAMATION UNDER INDIAN LAW

 chapter XXI sections 499-502 of Indian Penal Code protects an individual’s / person’s reputation. Defamation
against the state is contained in section 124A [Sedition], Section 153 of the Code provides for defamation of a class
i.e., community, while section 295A deals with hate speech with regards to outraging religious sentiments.
 Article 19(1) (a) of the Constitution guarantees to citizens right to freedom of speech and expression. However,
Article 19(2) limits this right in allowing the state the power to impose by law reasonable restrictions in the interests,
among other things, of the sovereignty and integrity of India, the security of the state, public order, decency or
morality, defamation, or incitement to an offence.
 Shreya Singhal v. Union of India is a landmark judgment in the field of freedom of speech and expression. This epic
case brings forth various dimensions which are important facets of article 19(a). Section 66A of Information
Technology Act which was widely criticised for its over breadth, vagueness and its chilling effect on speech was
struck down by the apex court as it was unconstitutional.
 Defamation can be both i.e. a civil wrong and a criminal offence as well. Section 499 and Section 500 of the Indian
Penal Code makes it a criminal offence (bailable and non-cognizable) whereas it can also be treated as a civil wrong
under the Law of Torts which is actually not based on any statutory law.
 If civil defamation is proved, the person has to pay a compensation for the damage done to his reputation or an
apology on defamed person’s terms; or sometimes both. If a criminal defamation case is proved then whoever
defames another person shall be punished with simple imprisonment for a term which may extend to two years, or
with fine, or with both.

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EXCEPTIONS OF DEFAMATION IN INDIAN LAW

1) Public Good — Imputation of truth which public good requires to be made or published. It is not defamation to
impute anything which is true concerning any person, if it is for the public good that the imputation should be made
or published. Whether it is or not for the public good is a question of fact.
2) Public conduct of public servants — It is not defamation to express in a good faith any opinion whatever respecting
the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his
character appears in that conduct, and no further.
3) Conduct of any person touching any public question — It is not defamation to express in good faith any opinion
whatever respecting the conduct of any person touching any public question, and respecting his character, so far as
his character appears in that conduct, and no further.
4) Publication of reports of proceedings of Courts — It is not defamation to publish substantially true report of the
proceedings of a Court of Justice, or of the result of any such proceedings
5) Merits of case decided in Court or conduct of witnesses and others concerned — It is not defamation to express in
good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a
Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting
the character of such person, as far as his character appears in that conduct, and no further.
6) Merits of public performance — It is not defamation to express in good faith any opinion respecting the merits of
any performance which its author has submitted to the judgment of the public, or respecting the character of the
author so far as his character appears in such performance, and no further. Explanation — A performance may be
substituted to the judgment of the public expressly or by acts on the part of the author which imply such submission
to the judgment of the public.

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7) Censure passed in good faith by person having lawful authority over another — It is not defamation in a person
having over another any authority, either conferred by law or arising out of a lawful contract made with that other,
to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
8) Eighth — Accusation preferred in good faith to authorised person — It is not defamation to prefer in good faith an
accusation against any person to any of those who have lawful authority over that person with respect to the
subject-matter of accusation.
9) Ninth — Imputation made in good faith by person for protection of his or other’s interests — It is not defamation
to make an imputation on the character of another; provided that the imputation be made in good faith for the
protection of the interests of the person making it, or of any other person, or for the public good.
10) Tenth — Caution intended for good of person to whom conveyed or for public good — It is not defamation to
convey a caution, in good faith, to one person against another, provided that such caution be intended for the good
of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.

Q9. What is the meaning of tort? Give the definition of tort with its essential elements? And Distinguish between tort and
crime?? with leading case laws.

Ans. MEANING

TORT English Term

Tortum Derived from Latin

Which means “to Twist”

 It means which is not straight or lawful, but, on other hand, twisted, crooked or unlawful.

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 Now it is settled that Tort is a civil wrong.

 Liability in tort arises from Breach of a duty primarily fixed by law which is towards others generally.

 The Breach of this duty redressible by an action for unliquidated damages by way of compensation.

 Tort is an infringement of a private common law right in rem.

 A person , who commits a tort or wrong , is called a “Tort- feasor” or “wrong- doer”

 His wrongful act is called a “tortious act”

ESSENTIAL OF A TORT

Wrongful Act Legal Damage legal remedy

or

Omission

Injuria sine damnum Damnum sin injuria

1. Wrongful act or Omission:

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 A person must have committed a wrongful act or omission i.e. he must have been done some act which he was not
expected to do.

 If person breach of duty which has been fixed by law breaks intentionally, he deemed to have a committed a wrongful
act.

 i.e violates the legal rights of another person e.g violation of right to property, right of bodily safety, right of good
reputation.

 A wrongful act may be positive act or an omission which may be committed by a person either negligently or
intentionally or even by committing a breach of strict duty e.g. driving a vehicle at an excessive speed.

 The wrongful act or a wrongful omission must be one recognized by law.

 If there is a mere moral or social wrong, there cannot be liability for the same.

 E.g. if somebody fails to help a starving man or save drowning child. But, where legal duty to perform is involved
and the same is not performed it would amount to wrongful act.

 In Municipal Corporation of Delhi v. Subhagwati(AIR 1966 SC 1750), where the Municipal corporation, having
control of a clock tower in the heart of city does not keep it in proper repairs and the falling of the same result in the
death of number of persons, the corporation would be liable for its omission to take care.

2.Legal Damage:

20
 The plaintiff has to prove that there was a wrongful act or omission which caused breach of a legal duty or the
violation of a legal right vested in the plaintiff.

Injuria sine damnum

Injuria sine damnum

Infringement without loss or damage


of a legal right

 This maxim means infringement or violation of a legal private right of a person even if there is no actual loss or
damage.
 infringement of a legal right of a person.

 No actual loss or damage is required to proved by the plaintiff .

 Infringement of a private right is actionable per se

 Torts are of two kinds-

 Which are actionable per se (i.e the law conclusively presumes damages as in case of violation of absolute rights),

 Which are actionable only on proof of actual damages resulting from them (as in case of qualified rights)

Case: Bhim singh v. State of J&K,(AIR 1986 sc 494)

21
Facts:

 The petitioner an M.L.A. of J&K Assembly, was wrongfully detained by the police.

 While he was going to attend the Assembly session.

 Thus, he was deprived of his fundamental right to personal liberty and constitutional right to attend the assembly
session.

 The court awarded exemplary damages of Rs. 50,000 by way of consequential relief.

Case: Ashby v. White,(1703)2 Lord Raym 938,

The principle of the maxim:

“if the plaintiff has a right, he must of necessity have a means to vindicate (clear of blame) and maintain it, and a
remedy if he is injured in the exercise or enjoyment of it, and indeed(reality) it is a vain (useless) thing to imagine a
right without a remedy, for want of right and want of remedy are reciprocal”.

Damnum sine injuria

Damnum sine injuria

Actual without infringement of

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& any legal right
substantial loss

 It means an actual and substantial loss without infringement of any legal right.

 In such a case no action lies.

 The essential requirement is the violation of a legal right.

There are many forms of harm of which the law takes no account.

 Loss inflicted on individual traders by competition in trade,

 Where the damage is done by a man acting under the necessity to prevent a greater evil.

 Damage caused by defamatory statements made on a privileged occasion,

 Where the harm is too trivial ,too indefinite or too difficult of proof,

 Where the harm done may be of such a nature that a criminal prosecution is more appropriate e.g. in case of public
nuisance or causing of death,

 There is no right of action for damages for contempt of court.

Case: Gloucester Grammer school Case, (1410)

 The defendant, a schoolmaster, set up a rival school to that of the plaintiff. Because of the competition, the plaintiff
had to reduce their fees.
 Held: The plaintiff had no remedy for the loss suffered by them.

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Case: Chesmore Vs. Richards,(1859)

 The plaintiff, a mill owner was using water for over 60 years from a stream which was chiefly supplied by the
percolating underground water.
 The defendants dug a well on their land deep enough to stop the larger volume of water going to plaintiff’s stream.
 Held: the plaintiff has no right of action since it was a case of damnum sine injuria.

3. Legal remedy or Damages:


 A tort is a civil injury, but all civil injuries are not torts.
 The wrongful act must come under the category of wrongs for which the remedy of a civil action for damages
is available.
 The maxim “ubi jus ibi remedium” Jus means the ‘legal authority to demand reparation or something and
Remeduium means the right of action. This means there is no wrong without a remedy.
 In other words “where there is a right, there is a remedy”.
 But even the absence of remedy is evidence but is not conclusive that no right exists.

Case: Ashby v. White,(1703)2 Lord Raym 938,

The principle of the maxim:

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 “if the plaintiff has a right, he must of necessity have a means to vindicate (clear of blame) and maintain it, and a
remedy if he is injured in the exercise or enjoyment of it, and indeed(reality) it is a vain (useless) thing to imagine a
right without a remedy, for want of right and want of remedy are reciprocal”.

Distinguish between tort and crime?

Basis Tort Crime

1. Nature of The tort is a private wrong. Private The crime is a public wrong.
Wrong wrong is the infringement of civil Public wrong is a violation or
right of an individual. It is breach of rights and duties which
comparatively less serious and affect the community, as a whole
labelled as civil wrong. it is a more serious wrong.

2. Nature of The remedy in law of tort is The remedy in crime is


Remedy damages. punishment.

3. Parties to In case of tort the suit is filed by In case of crime the complaint is

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suit injured or aggrieved party. filed in the name of State.

4. Withdrawl In case of tort the suit can be In case of crime the complaint
of suit withdrawn at any time and cannot be withdrawn except in
compromise can be done with certain circumstances
wrongdoer.

5. Codification There is no codification in law of Criminal law is codified.


torts.

6. Bar of There is bar of limitation of There is no bar of limitation of


Limitation prosecution in law of torts. prosecution in crime.

7. Survival of In case of death of tort-feaser his In case of death of offender, the


action legal representative can be sued suit is put to an end.
except when the tort is defamation,
personal injury not causing a
death.

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8. Application There is no separate statute deal The crimes are dealt in Indian
of law with tort. Tort is based on judicial Penal Code, 1860.
decisions.

9. Intention Intention is important but not in all Intention is the crux of the
cases e.g. in cases of negligence. offence.

Q11. How to File a Consumer Complaint in India? What are the rights under consumer protection act?

ANS. INTRODUCTION

 Consumer protection movement started many years ago is a part of the global movement that consumers are a weak
party in buying goods and services as compared to the manufacturers and traders producing and selling them. For a
market where companies and traders compete to sell goods and services to the consumer’s interest should be served
better but more often we see that the consumers are exploited by the adoption of some unfair and illegal trade
practices. To fight for the interest of the consumer in India ‘The Consumer Protection Act, 1986’ was enacted.

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 Any person may be a consumer of goods or services. When you purchase some goods, say a cycle, scooter, car, fan,
shoes or gas stove you may be a consumer of goods. When you open a bank account, take an insurance policy, get
your car repaired, you could be the consumer of services. The Consumer Protection Act provides redress to a
consumer when the “good purchased are defective” or “the services provided are subject to some deficiency”.
 C.P. Act, 1986 is a special enactment, creates an additional remedy in favor of the consumers to raise consumer
disputes before the for a constituted under the act. The remedy under the Act, 1986 is not in derogation of the other
remedies available to the party. Therefore, the consumer cannot be denied such right on the ground of availability of
an alternative remedy such as Arbitration Act. The CPA seeks to protect the interests of individual consumers by
prescribing specific remedies to make good the loss or damage caused to consumers because of unfair trade
practices.

The Consumer Protection Act envisages the establishment of the following:

1) Consumer Disputes Redressal Forum to be known as “District Forum.”


2) Consumer Disputes Redressal Commission, viz., “The State Commission” and
3) National Consumer Disputes Redressal Commission, viz, ” The National Commission.

Who is a consumer?

A Consumer is a person who purchases a product or avails a service for a consideration, either for his personal use or to
earn his livelihood by means of self-employment. The consideration may be:

 Paid
 Promised
 Partly paid and partly promised.

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It also includes a beneficiary of such goods/services when such use is made with the approval of such person. A person is
not a consumer if he/she:

 Purchases any goods or avails any service free of charge;


 Purchases a good or hires a service for the commercial purpose;
 Avails any service under the contract of service.

Who is not a Consumer?

A person is not a consumer if he/she

 Purchases any goods or avails any service free of cost;


 Purchases a good or hires a service for the commercial purpose;
 Avails any service under the contract of service.

Who can file a complaint?

 Any consumer;
 Any voluntary consumer association;
 Central Government or any State Government;
 One or more consumers, where there are numerous consumers having same interest;
 In case of death of a consumer, his legal representative or their heir.

Requirement for filing a consumer complaint

A complaint may be made in writing under the following circumstances:

 Loss or damage is caused to the consumer due to unfair or restrictive trade practice of a trade or service provider;
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 The article purchased by a consumer is defective;
 The services availed of by a consumer suffer from any deficiency;
 A trader or service provider, as the case may be, has charged for the goods or for the service mentioned in the
complaint a price in excess of the stipulated price;
 Goods or services, which will be hazardous to life and safety, when used, are being offered for sale to the public.

Where to file the complaints?

Under the consumer protection act, there are three tier Consumer Disputes Redressal Agencies. These are:

1) District Consumer Disputes Redressal Forum in the District;


2) State Consumer Disputes Redressal Commission at the state level;
3) National Consumer Disputes Redressal Commission at the national level.

Jurisdiction of Consumer Forums and National Commission

 District Consumer Disputes Redressal Forum in the District

Each District has a District Forum. It entertains complaints where the value of a claim is up to 20 Lakhs. District Forum
consists of three members. Out of the three, one is President, who is or has been or is qualified to be a District Judge. One
of the members shall be a woman.

 State Consumer Disputes Redressal Commission at the state level

Each State has only one state Commission. Complaints can be filed in State Commission where the value of the claim is
above 20 Lakhs up to One Crore. It consists of a President, who is or has been a Judge of a High Court and two other
members, one of whom shall be a woman. Appeals against the Orders of the District Forums can also be filed in the State
Commission.
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 National Consumer Disputes Redressal Commission at the national level.

There’s only one National Commission in our country which is located in New Delhi. Complaints about the value of claim
exceeding rupees One Crore can be filed in the National Commission. It consists of a President who is or has been a
Judge of the Supreme Court and not less than four other members, one of whom shall be a woman.

It takes appeals against Orders passed by the State Commissions. The Orders of this Commission can only be
challenged in the Supreme Court.

CONSUMER RIGHTS
There are six broad consumer rights defined as per the Consumer Protection Act, 1986. These are:
1) Right to Safety
The Consumer Protection Act defines this right as a protection against goods and services that are ‘hazardous to life and
property’. This particularly applies to medicines, pharmaceuticals, foodstuffs, and automobiles. The right requires all such
products of critical nature to life and property to be carefully tested and validated before being marketed to the consumer.

2) Right to Information
This right mentions the need for consumers to be informed about the quality and quantity of goods being sold. They must be
informed about the price of the product and have access to other information specific to the product that they wish to
consume.

3) Right to Choose

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The consumer must have the right to choose between different products at competitive prices. Thus, the concept of a
competitive market where many sellers sell similar products must be established to ensure that the consumer can actually
choose what to consume and in what quantity. This is to avoid monopoly in the market.

4) Right to Seek Redressal


When a consumer feels exploited, he/she has the right to approach a consumer court to file a complaint. A consumer court
is a forum that hears the complaint and provides justice to the party that has been hurt. Thus, if the consumer feels he/she
has been exploited, they can approach the court using this right.

5) Right to be Heard
The purpose of this right is to ensure that the consumer gets due recognition in consumer courts or redressal forums.
Basically, when a consumer feels exploited, he has the right to approach a consumer court to voice his complaint. This right
gives him/her due respect that his/her complaint will be duly heard. The right empowers consumers to fearlessly voice their
concerns and seek justice in case they are exploited.

6) Right to Consumer Education


Consumers must be aware of their rights and must have access to enough information while making consumption decisions.
Such information can help them to choose what to purchase, how much to purchase and at what price. Many consumers in
India are not even aware that they are protected by the Act. Unless they know, they cannot seek justice when they are
actually hurt or exploited.

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