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Code No. 1031
FACULTY OF LAW
LL.B. (3 YDC) I-Year I-Semester Examination,
December 2009 / January 2010
Subject : LAW
Paper: IV Law of Torts including Motor Vehicle Accidents and
Consumer Protections Laws
Time : 3 Hours ] [ Max. Marks : 80
PART-A (6x6=30)
Answer any five of the following :
1. Dammum sine injura
2. Joint tort feasors, x
Waiver and Acquiesceace
4. False imprisonment
5. Conspiracy,
6. Private Nuisance
7. Negligent Mis - statenient
8. Product lability
PART-B (2x15=30)
Answer any two of the following :
9. Explain the principle of strict liability with the help of decided cases,
10. Discuss ‘Volenti nori fit injuria’ as a general defence.
11. What are the essential elements of tort of defamation ?
12. Enumerate the salient features of the Consumer Protection Act, 1986,
Contd...2
101299 2 Code No. 1031
PART-C (2x10=20)
‘Answer any two of the following :
43, °X’ a lorry driver, otherwise hale and healthy, suddenly died due to heart attack while
driving the vehicle, As a xesult passengers met with injuries. Decide the liability of the
owner of the Vehicle.
14, An old building, which was of 80 yeais old, belonging to Municipal Corporation, located
in the heart of the city, collapsed causing the death of number of persons. Is the
corporation liable to pay compensation ? Decide.
45. ‘X’ filed a false complaint to the police imputing an offence of theft against “Y’. As a
result “Y’ was prosecuted but acquitted. “Y’ wants to file a case against. “X’ - can he
do so?
16. Mr. Ravi puschased a personal computer for his office work. It was kept in his room,
still office members were using it now and then. As it was found defective, Mr. Ravi
desires to file a case against the manufacturer. Advise him.
-000- PADALA RAMA REDD! LAW COLLEGE
Yellareddyguda, Ameerpet, Hyderabad Ph: 237404888, 29748936, 2974729,
Contents
u
12,
13,
14
15,
16.
17,
18,
19,
20.
au
(Affiliated ta. Osmania University)
\
Notes of Law of Torts & Consumer Protection Act 1986
3yDC&SYDC {
: Page No.
Define Tort and distinguish it form contract? 2
Injuria Sine Damnum i actionable, but Damnvii Sine Inj is in
actionable, discuss. 1 3
i
orn |
Explain the defence Volenti Non Fit Injuria (Content defence)
and its Limitations? } 6
Whats ie picid of Stet Listy and state exceptions,
itany? What isthe Indian Law relating to strict Uability?
(Rule in Rylands Vs, fletcher) 7
Define the Tort of Trespass t land and what are the remedies
available to trespass to land? 9
Discuss the liability of Joint Tort Feasors? un
Explain the Defence Act of God and Distinguish it from
inevitable accident? 2
Discuss the liability of Master for the Torts of the Servant
(Vicarious Liability) B
UNIT - ur
Define and explain and distinguish the Torts of adsault and battery. 5
‘Whtis false imprisonment and discuss the essentials of
and remedies for it? 7
: UNIT-IV
Define negligence and explain the Essentials of negligence? 18
‘What are various defences available against the tort of defamation? 20
‘What is remoteness of damage? 2
Res ISPA Loquitor 24
UNIT -v
Consumer Protection Art, 1986
Give an account of History of Consumer moverjent and Indian
consumer movernent? a
‘Whois a consumer? | 31
‘Whois a consumer? And explain what ie meant by consuiner Dispute? 34
Define defect in goods and deficiency in service? 36
Explain the composition and powers of District forum setup C.P. Act? 37
‘Write about state Commission contemplated under C.P. Act? 39
t 40
What are powers of the national commission? PADALA RAMA REDDI LAW COLLEGE
Orr eee
Unit-1
4, Define Tort and distinguish it from Contract?
+, Ans: The Word tort, which in English means a wrongful act, has its origin
in tho Latin word *Tortum" which means crooked or twisted. When applied to
the human conduct, it means a conduct which is contrary to the law or
inconsistent with law.
Jn this context it is relevant to point out that law confers certain rights and
at the same time imposes corresponding dios. the individuals in the society
Thus the tort is an act by which ono’s rights which are given to him by the law
are violated. However, one shoyld bear in mind that there are different branches
of law conferring the rights and imposing the duties,
Even though, many attempts have been made to defina the word ‘tor’, one
should see that itis very difficult to define exactly, Because of obvious reasons,
The main reason is that tort is Civil wrong and again tort is a residue of all athor
civil wrongs. Ae such itis better, if some of the important definitions are noted
According to Fraser, torts violation of a person's legal rights avaliable
against the whole world, which gives the injured party a right to compensation
Salmond defined tort as a ivil wrong which is not the breach of contract or
breach of trust or any other equitable obligation for which tho remedy is claim
for unliquidated damages. Winfield, another authority on the law of torts,
maintains that tort means wrongful act violating a duty fixed by the law on the
persons against all persons in goneral for which the remedy is unliquidated
damages. According to Sec.2(m) of the Limitation Act, 1963 tort is a civil wrong
which is not a breach of contract or trust.
One can find from all the above said definitions that tort is a civil wrong as
* distinguished from the-criminal wrong,
Even though tort is doubtlessly a civil wrong,-one should not forget the fact
~ that there are number of civil wrongs under all of which the definition of tort
does not fall. However, tort as civil wrong is conspicuously distinct from criminal
wrong, as such, now itis to be seen how tort is different from other civil wrongs.
Tort as a civil wrong is to:be distinguished from the breach of a contract
which is a civil wrong, however, it is not a tort. How a tort differs from a contract,
itis necessary to know what isa contract. A contract is an agreement creating
rights and obligations among the parties, and a breach of such agreement results
in the violation of rights and duties created by it, just as a tortuous act infringes
the rights of a person.
{nherently, in both tort and a contract, there is breach of duty, but there is
a conspicuous difference with regard to the source where from such duty arises,
In case of a contract, as it is well known, the duty under the contract arises from
the agreement voluntarily entered by the parties. But in case of a tort, one must
“necessarily note that such a duty is imposed by the law on the individuals, never
such duties are fixed by the parties as in a contract. Another glaring difference
between the tort and the contract is that rule of privity of contract with certain
exceptions is applicable in the law of contracts which debars a stranger to sue
_ and being sued.
Once again one can also find that while contractual obligations are fixed
against specific Individuals, whgreas in torts duties are owed towards public at
large (jus in rem). 1
Further, as to the remedy to a person aggrieved by the breach of contract
or a tortuous act Damages is tho\common remedy. However, ona should not fail
to observe that there is difference in the nature of damages awarded. In case of LAW OF TORTS & CONSUMER PROTECTION ACT, 1986 3
breach of contract, the damages awarded aro liquidated or predotermi
payable for the loss incurred. But in a sult against tortious eet then aoe
unliquidated damages, sinca thoy are not prefixed-by the parioa, aa the dence
OF Injury does not arise out of contractual duty,
Although, itis beyond doubt that a tort a8 a civil wrong is different from a
contract a8 observed barlier, sometimes, an act commitiod by # hereon clas
‘ise to liability under contraci as well as tor. For example, if a verson hee tag
Turniture to a person, if the latter damages il dus to hie negligence, the wes
incurs lability under contract as a ballee, as well as in torts for negligence
2. Injuria Sine Damnum is actionable, but Damnum Sine Injuria is
inactionable, discuss,
Ans. Any wrongful act committed by an individual resulting in the
infringement of a person's legal rights is a tort.
Thus, an individual, who commits some; act which he should not do
according to law, and fails to do an act required under law (omission), causing
some damage/injury commits tort
However, one should not conclude that any person doing an act forbidden
under the law or not doing an act what he should do under tho law, must
necessarily cause some damage to a person complaining against doer of the
wrongful act. In this context, the important poift to be noted is that, the said
damage or injury connote different sense as distinct from popular meaning. As
such, one must commit an act or default contrary to law, as. a result of which
another individual suffers from legal damage or injury. Such legal damage or
injury is the essential element of tortious liability without which any act or
‘omission under law does not make it a tort. The same principle is expressed in
the maxim Injuria Sine Damnum which is violation of legal rights without damage.
and converse is Damnum Sine Injuria, that harm or loss suffered without
infringement of one's legal rights. These maxims are explained hereunder
Injurta: Sine Damnum :—As already pointed out, a person commits a tort
when he, by wrongful act, causes injury or damage to another person. But, in
this connection, we should note that damage i.g., loss or harm always need not
be caused or incurred by a wrongful act because in some cases, an act makes
a person liable, if by such an act he has violated the legal rights of another
person
Thub, wherever there is infringement of aiperson's legal rights, although,
such person has not incurred actually any lose br suffered any harm, the wrong
doer is liable under the law of torts according to the principle Injuria Sine
Damnum. The premise is that violation of a person's legal right perse is sufficient
fo meke a person liable, even though, there Is no actual harm or loss. Therefore,
in Ashby vs. While, in which, an election authority had wrongfully denied the
voting right to a qualified voter, was held liable on the principle Injuria Sine
Damnum. Here one should find that although, tight to voto is denied by such
act, the aggrieved person had not suffered any loss, since the candidate in
whose favour he wanted to vote had come out Successful in the election. But,
right to vote, a legal right and violation of such legal right itself was held sufficient
to attract liability for tortious act. In this case, Holt, the chief Justice has
maintained that wherever a person has right under the law, he should have
remedy if it is violated, since right and remedy are co-extensive. Likewise, a
person who has sufficient credit in his bank accqunt, If that bank dishonours his,
cheque without proper reason can proceed against the bank on the above sald
principle, namely, Injuria sine damnum. Hence, in Marzetti vs. Williams, a
customer, with sufficient credit in his account presented the cheque to the bank,
and the ‘same was dishonoured by the bank without justified reason
Consequenily, the customer was allowed to recover damages from the bank
although he has not sustained any loss. 4 PADALA RAMA REDDI LAW COLLEGE
The supreme court of India in Bhim singh vs. State of Jammu & Kashmir,
has awarded exemplary damages to the extent of Rs.50,000/- when a Member
of Legislative Assembly (petitioner) was detained by the Police. When he was
proceeding to attend the Session of Assembly ‘and he was not produced before
the Judicial Magistrate. The action of State had deprived the M.L.A to attend
the Assembly Sossion as well as his fundamental right as to personal liberty
guaranteed by Art.21 of the constitution of India. Similarly, in Rudul Shah vs
State of Bihar, the Petitioner was awarded damages when he was illegally
detained without justification by the State.
In a nutshell, a nérson who has a right conferred on him by the law, in
case, such legal ight is violated by the acts of othier persons, according the
principle Injuria Sine Damnum, the aggrieved person can proceed against the
wrongdoer although, he actually has not suffered any damage or loss by the act
commiited by the doer.
Damnum Sine Injuria :—While infringement of a legal right without actual
harm or loss is actionable, it is o be noted that loss or harm caused to a person
without violation of the, legal right does not make the doer of the act liable. In
other words, violation of the legal right being the essence of the tortious liability,
as [ong as the legal right remains unaffected by the acts of others, according to
damnum sine injuria, the loss or injury suffered by a person is Inactionable
Hence, when a person causes any harm or loss in the exercise of his legal right
is not accountable to the latter under law. Thus, in Gloucester Grammar School
case, the founder and Headmaster of a school suffered heavy loss since another
person has opened another school, as such the former was compelled to reduce
the fee, which ultimately resulted in the loss. But the Court has observed this is
2 case of damnum sine injuria, that loss without infringement of legal rights
Consequently, his suit was dismissed. Similarly, any bona fide attempt to protect
one's pecuniary and commercial interests, though such steps cause loss to
others, does not give rige to any liability. So, in Moghul Steamship vs. Mc. Gregor
Gow & Company, many steamship companies have formed themselves into one
association and offered low freight to convey the tea from one place to another,
as a result of which the plaintiff (Moghul Steamship Co.) sustained severe loss
in the business, hencs this suit. However, the House of Lords, maintained that
the Steamship Companies are'not liable as they have done all what was needful
to save their interests within their lawful limits. Again, in Chesmore vs. Richards
@ suit was filed againstithe defendant (Richards) because he has dug a well on
their premises as a result of which, large quantity of water was consumed thought
it, but for which, the plaintiff (Chlesmore) the mill owner would have had sufficient
quantity of water for running His mill. Here also, the suit was dismissed by the
Court 2s there was ne infraction of plaintiffs legal right.
A person, under the law has a right to protect his property, and any such
act resulting in loss to,other person does not make former liable.
The A.P. High Court in Sitharamayye vs. Mahalakshmamma in which five
persons have-made their efforts to save the destruction of their property by
building bunds on the land by the flow of water, and this action in turn diverted
the stream to the plaintiff's land. In his suit,.he sought permanent injunction
against the said five persons. But the High court has dismissed the suit observing
that people owning property adjacent to a river has a right to protect their property,
from overflow of Water, consaquently any loss or damage uccasioned thereby
is; damaum sine injuria.|
Further, any loss oF harm} caused deliberately with malicious motive Is not
2 ground fo proceed agalnst a person. So, In Mayar of Bradford Corporation vs
Picklos, the defendant (picklss) was sued by the Municipal Corporation. The
grievance of the Plaintiff is that, the defendant had diminished the quantity of
water, by sinking a shaft over his land, and this was done by the defendant, a LAW OF TORTS & CONSUMER PROTECTION ACT, 1986 5
the plaintiff contended, because the Municipal Corporation had refused to
purchase his land. Hence the defendant's act Is blended with evil motive. se
Prayed the court to restrain the defendant from sinking the shaft on his land,
Emphasising the basic principle that there sholild be a legal right to the flow of
water, as such, when the defendant has exercised his own legal right, no motive,
howsoever evil or malicious, does not render it unlawful and actionable.
So, when these two maxims are read together ole can understand that in
order to make a person liable for his acts, there should be essentially violation
oF legal rights, despite the absence of loss or damage; but mere loss or harm,
howsoever enormous, doos not make the doér liable, if the legal rights of an
individual remain unaffected. t
3. Explain the defence Volenti Non Fit Injutia (consent defence)
and its Limitations?
‘Ans. Although injuria Cotingement of egal ah is actionable, injurla consented
is in-actionabie. |
Literally, vlenti non fitinjuria means where a person gives his consent to suffer
harm or loss. Subsequently, no action lies againe{ the person causing such foss or
harm. In other words, an aci which otherwise amgunts to a tor, due to the consent
given by a petson, thereatter is not treated so. Consequently, the doer who would
hove incurred libilty Is discharged from lability owing to’the consent given by the
aggrieved person.
In brief, the defence of volenti non fit injuria covers two cases namely doing of
the very act, and secondly, any incidental harm following the said act. A porson
consenting to undergo a surgical operation, subsequently cannot complain against
the surgeon who has performed the surgery, or a sportsman participating in a game
fr sport cannot find fault with co-player for any Injury he sustained in the course of
thie game-~
Such conser to the harm or loss complained:may be elther express or implied
from the conduct of [Link] as can ba seen from the case of Hail vs, Brookland
Autoracing Club. Briefly, the facts are that a epectator has instituted a suit against
Autoracing club, as he was Injured by one of the-cars participating in an autorace
when the said car collided with another participatirig carin the race. The Cour. ints
‘Judgment observed that the spectator has impliedly given his consent to such risk
he expertenced which is inherent in the races of this sort. AB such sult was dismissed
on the plea of volenti non fit injuria, Similarly, in the case Ilt vs. Wilkes, volenti non
fit injuria was applied. In that case, a trespasser was injured by the spring guns
arranged under the land could not sue the landlord because the trespasser had the
knowledge about the presence of such spring guns.
Thus, any harm or loss suffered for which, if a person gives his consent,
thereafter, cannot resort to legal action against the person inflicting such harm of
causing loss. Once again in Cutler vs. United Diaries a claim to recover damages
was failed on the ground of volenti non fit njuria. In this cage, a+horse fixed to.a ven
was found running restive, and the driver when, iispite of his best effort, could not
contrat it, he sought the help, and the plaintiff (cutler) came forward and while he
was helping to bring the horse under control, he was injured by it, hence sued tho
defendant. As said earlier, the court applied the defence df consent and dismissed
the suit
In order to take advantage of the defence volenti fon ft injuria, the below
mentioned conditions must be present. Filly, the consent must be free. Secondly,
there should be no negligence or lapse on the par of the person ralsing tho plea of
defence, 6 PADALA RAMA REDDI LAW COLLEGE
At the out set, in order to succeed on the plea of volenti nor fit injuria, the
Consent said to have given by the aggrieved person must be free consent, as such
the consent obtained otherwise than by the tree will of a person, for example fraud,
compulsion or mistake,'does not entitle the party to arise the defence by consent
Hence, in an English Case R vs. Williams, a music teacher, who had sexual
intercourse with his girl'student on the fraudulent pretext that it was to improve her
voice, to which she bonafide yields was held liable and plea of volenti non fit injuria
was rejected in as much as the consent obtained by the teacher was not [Link]
consent. Similarty, consent given due to compulsion, as and when a person left
without choice to give iis consent also is not a free consent.
Consent is distinct from: knowledge :—{Volens X Scienti).- Again to apply
the defence by consent, the consent is to be distinguished from the knowledge
Here, what is to be noted is that more prior knowledge or awareness about the risk
is not enough to attract volent! non fit injuria, but knowledge coupled with consent to
Suffer the risk must be there,
In Smith vs. Beker, a worker employed to cut the rocks was injured by crane
conveying the stones from and place to another place. The employer knowing about
the risk of the cranes passing on by the workers, never warned them, and injured
workman continued to work there with the knowledge of imminent risk. Ina suit
against employers, plea of knowledge of risk was raised to overcome the lability,
but the court hold that to attract defence of volenti non fit injuria;-there should be
clearcut consent, and such consent cannot be inferred as in this case from the
knowledge of the aggrieved persons.
Similarly in Bowater vs, Rowley Regis Corporation, an employee who was
injured in driving a horse, after protesting under the orders of his superior. It was
held that although, injuries were sustained with knowledge, there wos no consent
Horice, the suit was allowed. @
But when a person ignored the specific instructions of the employer or any
statutory directions, he cannot proceed against other party, and volenti non fit injuria
applies. Hence in Imperial Chemical Industries vs. Shadwell, two brothers employed
in the factory tried to test the:detonator without following employers, as well as
statutory instructions and ultimately they were injured. The court applying the volenti
non fit injuria dismissed the suit
Secondly, to apply the defence of volenti nen fit injuria, there should be no
lapse or negligence on the defendant. In its plain sense, when a person consents to
any risk or loss, it follows that the defence applies, as the presumption that there will
be no negligence on the part of the defendant. Hence, when a person participates in
@ sport like boxing, the defence applies as long as the game is fair and thore is no
negligence on the other participants, but where an injury is caused dus to negligence,
the defence has no application. Hence, in Slater vs. Clay Cross [Link]., a lady
while crossing tunnel through which trains pass, was injured by a train due to the
Negligence of the driver in not whistling and slowing the train in spite of the railway
authorities, instructions. It was pointed out by the Court that the lady had consented
to the risk arising from crossing the railway tunnel, but not to the nagligence of the
driver. Here, the rallway company was held liable.
Despite the fact that voluntary consent of a porson is a good defence against
an action for tort, the defence of consent has its own limitations.
Exceptions :—Aithough, the requirements of the defence volenti non fitinjuria
are satisfied in certain cases, the said defence may not bu available as in the Rescue
Cases, end under English Law, it Is restricted by the provisione of Unfair Contract
Terms Act, 4877 and these two exceptions are elaborated and explained below.
Rescue cases is one of the exceptions to the piéa that the consent discharges
@ wrong doer from ilabilty. If 3 person is compelled to “ace rial due to the wrongful
act of another person in order io: rescue ancther person or propeity from Imminent LAW OF TORTS & CONSUMER PROTECTION ACT, 1986 7
harm or loss, the defence of volenti non fit injuria js not available. Hence, In Haynes
vs. Harwood a Police Constable on duty was boully inured in his attempt to save 2
woman and her children from being crushed down by a horse which was left in a
busy street negligently, by the servants of the defendant. An attempt was made to
‘overcome the liability by raising the plea of novus actus Interveniens {intervened
ew) but, rejecting this plea, the cour: has held that initially there was negligence on
the part of the defendant's servants in parking thé vehicle which led to the present
panic situation, hence he was liable. Similarly in another case Hyett vs. Great Western
Railway Co., a person who was injured in his attempt to protect his friend from fire
‘occurred due to the negligence of the railway authorities was held entitled to recover
damages, as itis a rescue case. Lastly, in Baker vs. [Link] & Son, the widow
of [Link] was allowed to recover damages for, her husband's death'due to the.
negligence of the defendants. [Link], when he found two of his workmen were in
life risk, in a well filled with petrol fumes, got into well to protect them and died due
to consequential injuries. It was found that it was due to the. negligence of the