LAW OF TORTS

Q. Define "Tort" and state the essential for 'Tort'.

The word tort has been derived from the Latin word "tortum" which means to twist. In general, it means
conduct that adversely affects the legal right of others and is thus, "wrong". For a healthy society it is
necessary that it be free of anti-social elements and that an individual should have freedom to exercise
his rights without being restricted by others. Further, if there is a transgression of any right, there must
be a way to compensate or to restore the right. This is essentially what the maxim, "Ubi just ibi
remedium" implies. Where ever there is a right, there is a remedy. Indeed, a right has no value if there is
no way to enforce it. Such rights of individuals primarily originate from two sources - contractual
obligations and inherent rights that are available to all the citizens against every other citizen, aka rights
in rem. While the violation of contractual right has clear remedy that arises from the contract itself, the
violation of rights that are available to all the persons in general does not have a clear remedy because
there is no explicit contract between the two parties. Such violations are called wrongs and it is for such
wrongs that the law of torts has been developed. For example, one has a right against all other persons
to be free of noise in the night. If somebody starts playing music loudly, then he violates one's right to
be noise free. He is, thus, doing a wrong and even though there is no contract between the two, one can
sue him for damages.

There can be innumerable types of acts that can transgress the rights of others and it is not possible to
come up with a definition that can accommodate all the cases. However, the following are some
definitions from the experts -

Salmond - A tort is a civil wrong for which the remedy is action in common law for unliquidated
damages and which is not exclusively a breach of contract or breach of trust or other equitable
obligation.

Winfield - Tortious liability arises from the breach of duty primarily affixed by law. The duty is towards
persons in general and its breach is redressable by an action for unliquidated damages.

Fraser - Tort in an infringement of a right in rem of a private individual giving a right of compensation at
the suit of the injured party.

Thus, it can be seen that tort is an act while the law of tort is the branch of law that provides relief to the
person who has been injured due to a tortious act.

From the above definitions, it is clear that the nature of a tort is that it is a civil wrong. However, not all
civil wrongs are torts. For example, breach of contract and breach or trust are civil wrongs but are not
torts because their remedies exist in the contract itself. To determine if a particular act is a tort or not,

Page 1 of 80

Compiled by Rahul Kumar Singh

we must first make sure that it is a civil wrong. We should then make sure that it is NOT a breach of
contract or breach of trust.

Historically, crime and tort originated from the same root. Later on, they separated on the account that
a crime does not only affect the victim but also to the society as a whole to a great extent. Thus, the
branch of law that deals with criminal conduct evolved a lot faster than the branch of law that deals with
torts.

The nature of tort can be understood by distinguishing it from crime and contractual civil liabilities. It
can be said that tort is the residual of wrongful acts that are not crime and that do not fall under
contractual liabilities. Thus, if a wrongful act is neither crime nor a violation of a contract, it may fall
under tort. The damages are unliquidated and are decided only by the common sense of the courts.

Ingredients of Tort (Conditions that must be satisfied before a liability in Tort arises.)

There are three essential elements for an act to be liable under Tort.

1. Wrongful act or omission - There must be some act or omission of a duty on the part of the
defendant. For a tort to happen, the person must have first either done something that he was not
expected to do or omitted to do something that he was supposed to do.

Municipal Corp of Delhi vs Subhagvanti AIR 1966 - A clock tower was not in good repairs. It fell and
killed several people. MCD was held liable for its omission.

2. Duty imposed by law - The act or omission of an action must be required by law or the duty must be
imposed by law. This means that if an act that is prohibited by law causes harm, it is liable under tort.
Similarly, if the omission of an act that is required by law, causes harm, then it is liable under tort. For
example, law requires that the driver of a vehicle must drive carefully and if driving without care, a
pedestrian is hit, the omission of the act of driving carefully is liable under tort. However, if the
worshipers stop going to a temple and thereby cause the priest to lose money, this action is not liable
under tort because going to temple is not an act that is required by law. Such duties that are required by
law are usually towards all the people in general.

Donaghue vs Stevenson 1932 - Held that the manufacturer of a drink has a legal duty towards the
consumers to ensure that noxious substances are not included in the drink.

3. Injury - The act or the omission must result in legal damage or injury i.e. violation of a legal right
vested in the plaintiff. This means that the act or omission must cause a damage that is recognized by
law as wrongful. For example, a person has a legal right to enjoy his property and if someone throws
trash in it, this is a violation of his legal right and is liable under tort. However, it is possible that a legal
right is violated without causing any physical or real damage. This is explained in the maxim - Injuria Sine
Damno.

Page 2 of 80

Compiled by Rahul Kumar Singh

Injuria Sine Damno -

meaning - The meaning of this maxim is injury to legal right without any monetary loss. This is
actionable, because there is violation of legal right, even though plaintiff suffer no loss in term of money
and defendant is liable.

1) Ashby v/s White, 1703.

Fact- Plaintiff was legal voter ,his name was there in voter [Link] was a returning officer, i.e.
incharge of election. Deft. Refused the plaintiff to offer or to tender his lawful vote to his candidate.
Plaintiff sued [Link] compensation even though no loss is caused in term of money.

Issue -Whether defendant is liable.

Defence of Deft- The plaintiff suffered no loss in money. Moreover, the candidate to whom he was
about to offer /tender his vote got elected. So deft. not liable

Held - Court held that Deft. is liable to pay compensation because he has violated legal right of plaintiff
to vote. Even though plaintiff suffered no actual loss in term of money, or the candidate to whom
plaintiff was interested got elected, defendant has committed a tort and therefore liable to pay
compensation.

2)Ashrafilal v/s Municipal corporation of Agra, 9121.

Fact- It is the similar case to Ashby v White. The name of plaintiff was deleted, dropped from voter list
by the Deft corporation, so plaintiff couldn't exercise his right to vote . Plaintiff sued Deft. corporation
for compensation.

Issue - Is corporation liable?

Held - Court accepted the principal of Ashby v/s White e.g. injuria sine damnum.

3) Marzetti v/s Williams 1830 (Bank refusing customers cheque )

Fact - Plaintiff was an account holder or customer who was having amount in his account he went to
withdraw money by Self cheque. Though there was sufficient amount in his account, the Deft banker
refused to pay plaintiff without any reason. So plaintiff filed a suit against Deft banker for damage.

Held -Even though plaintiff suffered no monetary loss Deft. i s liable for refusing customers cheque and
therefore committed tort.

Page 3 of 80

Compiled by Rahul Kumar Singh

 Bhim Singh vs State of J K AIR 1986 - Plaintiff was an MLA and was wrongfully arrested while going to
assembly session. He was not produced before a magistrate within the requisite period. It was held that
this was the violation of his fundamental rights. Even though he was release later, he was awarded
50,000RS as exemplary damages by SC.

On the other hand, it is possible that a person suffers a huge loss or damage but none of his legal rights
are violated. This is called Damnum sine Injuria. In such cases, there is no tortious act.

'Damnum sine injuria'

Meaning: Damnun sine injuria means damages , monetary loss, to the plaintiff without violation of legal
right, not actionable because no injury to legal right.

1) Mayor of Bradford v/s Pickles 1895

Facts - Corporation of Bradford was supplying water from its well. Defendant was having adjacent land
to the corporation land wherein there was well.

Defendant was willing to sell his land. He approached the mayor of corporation. Negotiations failed.
Defendant dug well in his own land .thereby cutting the underground supply of water of corporation
well this has caused a loss to corporation because there was no adequate supply of water to the people
of corporation. Plaintiff sued Deft for damages for malice.

Held - Deft is not liable, because defendant's act is not wrongful as not violated legal right or plaintiff.
There is factual malice, ill will digging well in his own land does not amount to tort.

2)Gloucester Grammar school case, 1410 (setting up rival school)

Fact - Defendant was school teacher in plaintiff's school. Because of some dispute Deft left plaintiff's
school and started his own school. As defendant was very famous amongst students or his teaching,
boys from plaintiffs school left and joined to Deft. School . Plaintiff sued Deft. for monetary loss caused.

Held - Deft not liable. Compensation is no ground of action even though monetary loss in caused if no
legal right is violated of anybody.

3) Chasemore v/s Richards 1859

Fact - Plaintiff was running a mill on his own land, and for this purpose he was using the water of the
stream for a long time. The Deft dug well in his own land and thereby cut off the underground water
supply of stream. Through percolation the water gathered in the well of deft. The quantity of water of
stream was reduced and the mill was closed for non availability of water. Plaintiff sued deft for damage.

Page 4 of 80

Compiled by Rahul Kumar Singh

Held - Deft. Not liable, because of principle of Damnum sine injuria. No violation of legal right, though
actual loss in money.

Harm due to negligence - A person is not liable in tort even if he causes harm due to negligence but
does not cause injury. In Dickson vs Reuter's Telegram Co 1877, the defendant company delivered a
telegram that was not meant for the plaintiff to the plaintiff. Based on the telegram, the plaintiff
supplied some order which was not accepted by the sender of the telegram. Plaintiff suffered heavy
losses and sued the defendant company. It was held that the company owed a contractual duty only to
the sender of the telegram and not to the receiver. Hence they were not liable.

Harm due to malice - If a person has not caused an injury even if he does an act with malice, he is not
liable. In Bradford Corporation (mayor of) vs Pickles 1895, the defendants sunk a shaft in their own
land which caused the water to become discoloured and unsuitable for the plaintiff. It was held that
even if the defendant did it with malice, he had not violated any right of the plaintiff and hence was not
liable.

Q. Distinguish between : (i) Tort and Breach of contract. (ii) Tort and Crime.

Distinction between Tort and Breach of Contract

Tort Breach of Contract

Tort occurs when the right available to all the persons in A breach of contract occurs due to a breach
general (right in rem) is violated without the existence of of a duty (right in persona) agreed upon by
any contract. the parties themselves.

Victim is compensated for unliquidated damages as per Victim is compensated as per the terms of
the judgment of the judges. Thus, damages are always the contract and damages are usually
unliquidated. liquidated.

Duty is fixed by the law of the land and is towards all the Duty towards each other is affixed by the
persons. contract agreed to by the parties.

Doctrine of privity of contract does not apply because

Only the parties within the privity of
there is no contract between the parties. This was held in
contract can initiate the suit.
the case of Donaghue vs Stevenson 1932.

Tort applies even in cases where a contract is void. For When a contract is void, there is no
example, a minor may be liable in Tort. question of compensation. For example, a

Page 5 of 80

Compiled by Rahul Kumar Singh

 contract with a minor is void ab initio and so
a minor cannot be held liable for anything.

Justice is met by compensating the victim for his injury and

exemplary damages may also be awarded to the victim.
Justice is met only by compensating the
In Bhim Singh vs State of J K AIR 1986 - the plaintiff was
victim for actual loss.
awarded exemplary damages for violation of his rights
given by art 21.

Distinction between Tort and Crime

Tort Crime

Tort occurs when the right available to

Tort occurs when the right available to all the persons in
all the persons in general (right in rem)
general (right in rem) is violated without the existence of any
is violated and it also seriously affects
contract.
the society.

Act is comparatively more serious and

Act is comparatively less serious and affects only the person.
affects the person as well as the society.

Intention is the most important element

Intention is usually irrelevant. in establishing criminal liability. A crime
cannot happen without Mens Rea.

It is a private wrong. It is a public wrong.

Since it is a private wrong the wronged individual must file a Since it is a public wrong, the suit is filed
suit himself for damages. by the govt.

The suit is for damages. The suit is for punishment.

Compromise is possible between the parties. For example, a There is no compromise for the
person who has been defamed, can compromise with the punishment. For example, if a person is
defamer for a certain sum of money. guilty of murder, he cannot pay money

Page 6 of 80

Compiled by Rahul Kumar Singh

 and reduce his sentence.

Compounding is possible. Compounding is generally not possible.

Justice is met by compensating the victim for his injury and Justice is met by punishing the
exemplary damages may also be awarded to the victim. aggressor by prison or fine. In some
In Bhim Singh vs State of J K AIR 1986 - the plaintiff was specific cases as given in IPC
awarded exemplary damages for violation of his rights given compensation may be given to the
by art 21. victim.

Several criminal acts such as assault and

Tortious acts are usually not criminal acts. battery are also grounds for tortious
suit.

Q. 'There is a law of Torts, but not a law of Tort' - Explain

There are two competing theories in this regard. According to one theory, there is a general principle
that all wrongs are actionable as tort unless there is any legal justification. The other theory says that
there is no general principle of liability as such but only a definite number of torts as trespass,
negligence, nuisance, defamation etc. and the plaintiff has no remedy unless he brings his case under
one of the nominate torts.

It Is Law Of Tort: Winfield is the chief supporter of this theory. He says, all injuries done to another
person are torts, unless there is some justification recognized by law. Thus according to this theory tort
consists not merely of those torts which have acquired specific names but also included the wider
principle that all unjustifiable harm is tortuous. This enables the courts to create new torts. Winfield
while supporting this theory comes to the conclusion that law of tort is growing and from time to time
courts have created new torts.

Supporters of This Theory: The theory given by Winfield has been supported by many eminent Judges
both ancient and modern. Following are some examples:-

· HOLT, C.J. clearly favoured Winfield’s theory, by recognizing the principle of ubi jus ibi remedium. He
said that, if man will multiply injuries, actions must be multiplied too; for every man who is injured
ought to have recompense [Ref. case- Ashby v. White (1703) 2 Ld. Raym. 938].

· PRATT, C.J. said that, torts are infinitely various, not limited or confined [Ref. case- Chapman v.
Pickersgill (1762)2 Wils 145].

Page 7 of 80

Compiled by Rahul Kumar Singh

· In 1893, BOWEN, L.J., expressed an opinion that at common law there was a cause of action, whenever
one person did damage to another willfully or intentionally without a just cause or excuse.

· LORD MACMILLAN observed that, the common law is not proved powerless to attach new liabilities
and create new duties where experience has proved that it is desirable [Ref.- Donoghue v. Stevenson
(1932) AC 595].

Creation Of New Torts: This theory is also supported by the creation of new torts by courts of law. For
example:-

· The tort of inducement to a wife to leave her husband in Winsmore v. Greenbank (1745) Willes 577
(581).

· Tort of deceit in its present form had its origin in Pasley v. Freeman (1789) 3 TR 51

· Tort of inducement of breach of contract had its origin in Lumley v. Gye (1853) 2 E & B 216.

· The tort of strict liability had its origin in Rylands v. Fletcher (1868) LR 3 HL 330.

· The tort of intimidation in Rookes v. Barnard (1964) 1 All ER 367

From the above mentioned cases it is clear that the law of tort is steadily expanding and that the idea of
its being in a set of pigeon-holes seems to be untenable.

Winfield’s Theory And Indian Judiciary: Indian judiciary has also shown a favour to Winfield’s theory. In
the words of Justice BHAGWATI, C.J., we have to evolve new principles and lay down new norms which
will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow
our judicial thinking to be constricted by reference to the law as it prevails in England……. we are
certainly prepared to receive light from whatever source it comes but we have to build our own
Jurisprudence. In the same case the Supreme Court of India established the concept of ABSOLUTE
LIABILITY in place of strict liability [Ref. case- M.C. Mehta v. Union of India, AIR 1987 SC 1086].

It Is Law Of Torts: Salmond on the other hand, preferred the second alternative and for him, there is no
law of tort, but there is law of torts. According to him the liability under this branch of law arises only
when the wrong is covered by any one or other nominate torts. There is no general principle of liability
and if the plaintiff can place his wrong in any of the pigeon-holes, each containing a labeled tort, he will
succeed. This theory is also known as ‘Pigeon-hole theory’. If there is no pigeon-hole in which the
plaintiff’s case could fit in, the defendant has committed 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.

Supporters of This Theory:

Page 8 of 80

Compiled by Rahul Kumar Singh

· Professor Dr. Jenks favoured Salmond’s theory. He was, however, of the view that Salmond’s theory
does not imply that courts are incapable of creating new tort. According to him, the court can create
new torts but such new torts cannot be created unless they are substantially similar to those which are
already in existence [Ref.- Journal of Comparative Legislation, Vol. XIV (1932) p. 210].

· Heuston [Editor of Salmond’s Torts] is of the view that Salmond’s critics have misunderstood him.

· Professor Glanville Williams wrote: To say that the can be collected into pigeon-holes does not mean
that those pigeon-holes may not be capacious, nor does it mean that they are incapable of being added
to.

Criticism of Salmond’s Theory: Professor Dr. Jenks while supporting Salmond’s theory observed that the
court can create new torts but such torts cannot be created unless they are substantially similar to those
which are already in existence. Dr. Jenks’s view does not appear to be correct as for example:-

· In Rylands v. Flethcher (1868) LR 3 HL 330 a new tort i.e. strict liability was created which was not
substantially similar to any existing tort.

· Again in Rookes v. Barnard (1964) AC 1027 a new tort i.e. intimidation was created.

4. Conclusion: Winfield made a modification in his stand regarding his own theory. He thought that
both his and Salmond’s theories were correct, the first theory from a broader point of view and the
other from a narrower point of view. In the words of Winfield, from a narrow and practical point of
view, the second theory will suffice, but from a broader outlook, the first is valid [Ref.- Winfield and
Jolowicz, Tort, 10th Edition, p. 19]. It is thus a question of approach and looking at the things from a
certain angle. each theory is correct from its own point of view.

Q. Discuss the rule of Strict liability with the help of decided case laws. State exceptions.

Strict liability - This is a famous rule of English law. Under this rule the defendant is liable for the harm
even though the same is unintentional & also without any negligence on the part of the defendant. The
rule of strict liability was formulated in 1868 by the House of Lords in Ryland’s Vs Fletcher & therefore it
is also known as Ryland’s Vs Fletcher rule.

In the above case Blackburn J, summarized the above rule as “If the person who, for his own purpose
brings on his land & collects & keeps there anything likely to do mischief it escapes must keep it as his
peril & he does not do so, he is Prima facie answerable for all the damage which is the natural
consequences of its escape though he had not been negligent”.

Essentials of Strict Liability: Some dangerous thing Non natural use of land Plaintiff suffered from
damages bought or collected on land & it should be escaped
Page 9 of 80

Compiled by Rahul Kumar Singh

1. Some dangerous thing bought or collected on land - The first essential condition for the application
of the rule is that the defendant must have bought or collected on his land & kept there some
dangerous things or anything likely to do mischief if it escapes like water, gas, electricity, poisonous
trees, sewages, explosive etc.

2. Non natural use of land - Every person have a exclusive right to use his land but he can’t use his Land
in non natural manner. The use of land is natural or not is depend upon the fact & circumstances of each
& every case.

3. Plaintiff suffered from damages - Move on one’s land bringing or keeping a dangerous thing & non
natural use of land is not an actionable wrong, unless & until plaintiff suffered some damage from that
thing.

Landmark Case: Rylands v Fletcher (1868) L.R. 3 HL 330

FACTS: The defendant was a mill owner, employed some independent contractors who were apparently
competent, to construct a reservoir on his land to provide water for his mill. In the course of work the
contractors came upon some old shafts and passages on the defendant’s land. They interlinked with the
mines of the plaintiff, a neighbour of the defendant, although no one suspected this, for the shafts
appeared to be filled with earth. The contractors did not block them up, and when the reservoir was
filled the water from it burst through the old shafts and flooded the plaintiff’s mines. It was found as a
fact that the defendant had not been negligent, although the contractors had been.

DECISION: The House of Lords held the defendant liable.

The basis of liability in the above case was the following rule propounded by Blackburn, J.: “We think
that the rule of law is, that the person who for his own purposes brings on his lands and keeps there
anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima
facie answerable for all the damage which is the natural consequence of its escape. He can excuse
himself by showing that the escape was owing to the plaintiff’s default; or perhaps that the
consequence was of vis major, or the act of god; but as nothing of this sort exists here, it is unnecessary
to inquire what excuse would be sufficient.”

The justification for the above -stated rule was explained in the following words:-

“The general rule, as stated above, seems on principle just. The person whose grass is eaten down by the
escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour’s reservoir, or
whose cellar is invaded by the filth on his neighbour’s privy, or whose habitation is made unhealthy by
the fumes and noisome vapours of his neighbours alkali works, is damnified without any fault of his own;
and it seems reasonable and just that the neighbour who has brought something on his own property
which was not naturally there, harmless to others so long as it is confined to his own property, but which
he knows to be mischievous if it gets on his neighbour’s land should be obliged to make good the
damage which ensures if he does not succeed in confining it to his own property. But for his act in
Page 10 of 80

Compiled by Rahul Kumar Singh

bringing it there, no mischief could have accrued, and it seems but just that he should at his peril keep it
there so that no mischief may accrued, or answer for the natural and anticipated consequences. And
upon authority, this we think is established to be the law whether the things so brought, be beasts, or
water, or filth, or stenches.”

To the above rule laid down by Blackburn, J., in the Court of Exchequer Chamber, another important
qualification was made by the House of Lords when the case came before it. It was held that for the
liability under the rule, the use of land should be “non-natural” as was the position in Rylands v Fletcher
itself.

Exception (Defences) of strict liability - The rule of strict liability not follows in the following conditions
or following are the defences of defendant in case of strict liability—

1. DEFAULT OF THE CLAIMANT: If the damage is caused solely by the act or default of the claimant
himself, he has no remedy. In Rylands v Fletcher itself, this was noticed as a defence. If a person knows
that there is a danger of his mine being flooded by his neighbour’s operations on adjacent land , and
courts the danger by doing some act which renders the flooding probable he cannot complain. So too in
Ponting v Noakes (1849) 2 QB 283, the claimant’s horse reached over the defendant’s boundary,
nibbled some poisonous tree there and died accordingly and it was held that the claimant could recover
nothing, for the damage was due to the horse’s own intrusion and alternatively there had been no
escape of vegetation.

2. ACT OF GOD: Where the escape is caused directly by natural causes without human intervention in
“circumstances which no human foresight can provide and of which human prudence is not bound to
recognize the possibility”, the defence of Act of God applies. This was recognized by Blackburn J. in
Rylands v Fletcher itself and was applied in Nichols v Marsland (1876) 2 Ex D1. In this case the
defendant for many years had been in possession of some artificial ornamental lakes formed up by
damming up a natural stream. An extraordinary rainfall, “greater and more violent than any within the
memory of the witnesses” broke down the artificial embankments and the rush of escaping water
carried away four bridges in respect of which damage the claimant sued. Judgment was given for the
defendant; the jury had found that she was not negligent and the court held that she ought not to be
liable for an extraordinary act of nature which she could not foresee or reasonably anticipate.

3. STATUTORY AUTHORITY: The rule in Rylands v Fletcher may be excluded by statute. Whether it is so
or not is a question of construction of the particular statute concerned. In Green v Chelsea Waterworks
Co(1894) 70 LT 547, for instance a main belonging to a water-works company, which was authorized by
Parliament to lay the main, burst without any negligence on the part of the company and the claimant’s
premises were flooded; the company was held not liable. On the other hand, in Charing Cross Electricity
Co v Hydraulic Power Co (1914) 3 KB 772, where the facts were similar, the defendants were held to be
liable and had no exemption to the interpretation of their statute. The distinction between the cases is
that the Hydraulic Power were empowered by statute to supply water for industrial purposes, that is
they had permissive power but not a mandatory authority, and they were under no obligation to keep
Page 11 of 80

Compiled by Rahul Kumar Singh

their mains charged with water at high pressure, or at all. The Chelsea Waterworks Co were authorized
by statute to lay mains and were under a statutory duty to maintain a continuous supply of water ; it
was an inevitable consequence that damage would be caused by occasional bursts and so by necessary
implication the statute exempted them from liability where there was no negligence.

4. CONSENT OF THE CLAIMANT: Where the claimant has expressly or impliedly consented to the
presence of the source of danger and there has been no negligence on the part of the defendant, the
defendant is not liable. The exception merely illustrates the general defence, volenti non fit injuria. The
main application of the principle of implied consent is occupied by different persons and the tenant of a
lower suffers damage as a result of water escaping from an upper floor, though it has to be said that the
cases which have discussed this defence have tended to involve perfectly ordinary domestic fittings
which would to modern eyes be a natural use of land.

5. ACT OF THIRD PARTY: If the harm has been caused due to the act of a stranger, who is neither the
defendant’s servant nor the defendant has any control over him, the defendant will not be liable under
this rule. Thus in Box v Jubb LR 4 Ex Div 76. The overflow from the defendant’s reservoir was caused by
the blocking of a drain by strangers, the defendant was held not liable for that. Similarly, in Richards v
Lothian (1913) AC 263 some strangers blocked the waste pipes of a wash basin, which was otherwise in
the control of the defendants, and opened the tap. The overflowing water damaged the plaintiff’s
goods. The defendants were held not liable.

6. COMMON BENEFIT: If the source of danger was maintained for the benefit of both the claimant and
the defendant, then the defendant will not be held liable for the consequences of its escape. This
defence is somewhat related to the defence of consent, as it can be construed as an implied consent.
According to Winfield, common benefit seems redundant as an independent defence.

Q. Explain "Absolute Liability"? How is it different from "Strict Liability"? Explain with the help of
cases.
If an industry or enterprise is engaged in some inherently dangerous activity from which it is deriving
commercial gain and that activity is capable of causing catastrophic damage then the industry officials
are absolutely liable to pay compensation to the aggrieved parties. The industry cannot plead that all
safety measures were taken care of by them and that there was negligence on their part. They will not
be allowed any exceptions neither can they take up any defence like that of ‘Act of God’ or ‘Act of
Stranger’.

MC Mehta v Union of India & others AIR (1987) SC 1086

FACTS of the case were as follows:

In case of M.C. Mehta v. Union of India, where the Supreme Court was dealing with claims, arising from
the leakage of Oleum gas on 4th and 6th December, 1985 from one of the units of Shriram Foods and
Page 12 of 80

Compiled by Rahul Kumar Singh

Fertilizers Industries, located in the city of Delhi, belonging to Delhi Cloth Mills Ltd. As the consequence
of this leakage, it was alleged that one advocate practicing in the Tis Hazari Court had died and several
others were affected by the same. The action was brought through a writ petition under Art.32 of the
Indian Constitution by way of public interest litigation as the Court thought that these applications for
compensation raised certain important issues and those issues should be addressed by a constitutional
bench.

The court had in mind that it was within a period of one year that a second case of large scale leakage of
noxious gas in India took place, as just a year back the Bhopal Gas Tragedy had taken place where more
than 3000 persons had met tragic and untimely death and lakhs of others were subjected to diseases of
serious kind.

No doubt it is a matter of concern, that where on one hand; there is a public limited company by shares,
earning profits, which is engaged in an industry vital to its share holder’s interest and on the other hand
it is also a company with potential to affect the life and health of the people. Here comes the conflict of
interest of the shareholders or the people benefitting under it and the public that is affected by its gas
but actually getting no benefit. In M.C. Mehta the issue of availability of Article 21 against a private
corporation engaged in an activity which has potential to affect the life and health of the people was
vehemently argued by counsel for the applicants and Shriram. The Court traced the evolution of the
Doctrine of State Action to ascertain whether the defendants in this case fall under the definition of the
term state, as provided under Article 12. The Court also looked into the Industrial Policy of the
Government and Industrial Policy Resolution 1956 where industries were classified into three categories
having regard to the part which the State would play in each of them.

If an analysis of the declarations in the Policy Resolutions and the Act is undertaken, we find that the
activity of producing chemicals and fertilizers is deemed by the State to be an industry of vital public
interest, whose public import necessitates made the activity to be ultimately carried out by the State
itself, in the interim period with State support and under State control, private corporations may also be
permitted to supplement the State effort. The argument of the applicants on the basis of this premise
was that in view of this declared industrial policy of the State, even private corporations manufacturing
chemicals and fertilizers can be said to be engaged in activities which are so fundamental to the Society
as to be necessarily considered government functions. Now the question arises which necessity should
be given more importance. Undoubtedly the right to life prevailed and the Supreme court thus evolved
a new principle of Absolute Liability.

In M.C. Mehta case, as per Bhagwati, C.J., “…the rule of Rylands v. Fletcher evolved in the year 1866
and it provides that a person who for his own purposes brings on to his land and collects and keeps
there anything likely to cause mischief if it escapes must keep it at his peril, if he fails to do so is prima
facie liable for the damage which is the natural consequence of its escape. The liability under this rule is
strict and it is no defence that the escaped without the person’s willful act, default or neglect or even he
had knowledge of its existence…. Of course, this rule applies to only non-natural user of the land and it
does not apply to things naturally on the land where the escape is due to an act of God, and an act of
Page 13 of 80

Compiled by Rahul Kumar Singh

stranger, or the default of the person injured, or where the thing which escapes is present by the
consent of the person injured, or in certain cases where there is statutory authority.

Subsequent to the Ryland rule considerable case law has developed in England and other common law
countries, even as technology has been developing with rapid industrialisation and growth of new
technologies that included hazardous and inherently dangerous products and industries. Yet, the Ryland
rule continues to remain the only ‘standard’ of liability.

Bhagwati, C.J., further states “..he Ryland rule evolved in the 19th century at a time when all these
debelopments of science and technology had not taken place cannot afford any guidance in eveolving
any standard liability consistent with the constitutional norms and needs of present day economy and
social structure. We need not feel inhibited by this rule…. Law has to grow in order to satisfy the needs
of fast changing society….As new situations arise, law has to be evolved in order to meet the challenge
of such new situations. Law cannot afford to remain static… We cannot allow our judicial thinking to be
constricted by reference to the law as it prevails in England or for that matter in any other foreign
country. We no longer need the crutches of a foreign legal order….. We have to build our own
jurisprudence… If it is necessary to construct a new principle of liability to deal with an unusual situation,
….there is no reason why we should hesitate to evolve such principle of liability merely because it has
not been done so in England”

“…We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous
industry which poses potential threat to the health and safety of the persons working in the factory and
residing in surrounding areas owes an absolute and non-delegable duty to the community to ensure no
harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it
has undertaken. The enterprise must be held to be under obligation to provide that its activities be
conducted with the highest standards of safety and if any harm results on account of such activity, the
enterprise must be absolutely liable to compensate for such harm and it should be no answer to the
enterprise to say that it had taken all reasonable care and that the harm occurred without any
negligence on its part”

“We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous
activity and harm results to anyone on account of an accident in the operation of such hazardous or
inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and
absolutely liable to compensate all those who are affected by the accident and such liability is not
subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability under the
rule in Rylands v. Fletcher.”

‘...The measure of compensation in these kind of cases must be correlated to the magnitude and
capacity of the enterprise because such compensation must have a deterrent effect. The larger and
more prosperous the enterprise, greater must be the amount of compensation payable by it for the
harm caused on account of an accident in the carrying of the hazardous or inherently dangerous activity
by the enterprise”.
Page 14 of 80

Compiled by Rahul Kumar Singh

The difference between strict and absolute liability

The difference between strict and absolute liability rules was laid down by Supreme Court in M. C.
Mehta V. Union of India, where the court explains as:

Firstly, In absolute liability only those enterprises shall be held liable which are involved in hazardous or
inherently dangerous activities, this implies that other industries not falling within in the above ambit
shall be covered under the rule of strict liability.

Secondly, the escape of a dangerous thing from one's own land is not necessary; it means that the rule
of absolute liability shall be applicable to those injured within the premise and person outside the
premise.

Thirdly, the rule of Absolute liability does not have an exception, whereas as some exception were
provided in rule of Strict Liability. Also in the case of Union of India Prabhakaran Vijay Kumar the view of
constitutional bench was that the rule of MC Mehta is not subject to any type of exception.

Fourthly, the Rule of Ryland V Fletcher apply only to the non natural use of land but the new rule of
absolute liability apply to even the natural use of land. If a person uses a dangerous substance which
may be natural use of land& if such substance escapes, he shall be held liable even though he have
taken proper care.

Further, the extent of damages depends on the magnitude and financial capability of the institute.
Supreme Court also contended that, The enterprise must be held to be under an obligation to ensure
that the hazardous or inherently dangerous activities in which it is engaged must be conducted with the
highest standards of safety and security and if any harm results on account of such negligent activity,
the enterprise institute must be held absolutely liable to compensate for any damage caused and no
opportunity is to given to answer to the enterprise to say that it had taken all reasonable care and that
the harm caused without any negligence on his part.

Q. What do you mean by "Vicarious liability"? How does such liability arise?

‘It is entirely appropriate that all businesses be responsible for the torts of their employees'.

Vicarious liability can be defined as such liabilities wherein a person will be held liable for an act done by
someone else. In the field of tort, it is considered to be an exception to the general rule that a person
will be liable for his own acts only. So that the liability of a person for the act of someone else may arise,
it is necessary that there should be certain kind of relationship among both the persons and the
wrongful act. This must be connected with their relationship.

Page 15 of 80

Compiled by Rahul Kumar Singh

In order to establish liability on the part of the employer, several requirements must be satisfied. Firstly,
the wrongdoer must be an employee (as opposed to an independent contractor), the employee must
have committed a tort and the tort must have been committed in the course of employment.

Common examples of such liabilities are:

 Liability of the Principal for the tort of his agent

 Liability of partners for each other’s tort

 Liability of master for the tort of his servant

In a case of vicarious liability, both the person at whose behest the act is done as well as the person who
does the act is liable. Thus, employers are vicariously liable for the torts of their employees that are
committed during their employment.

Reasons for Vicarious Liability

There are several reasons for a person to commit an act which results in vicarious liability:

1. The wealth of a defendant or his access to financial resources and in some cases had an
unconscious influence on the development of legal principles.

2. Vicarious liability encourages prevention of an accident by giving an employer a financial

interest in encouraging his employees to take care of the safety of others.

3. As employers gain from any profit from his employees, he also bears any losses caused by them.

Under the Indian Contract Act, there is no special provision regarding the term ‘vicarious liability’. But
the Act defines certain terms such as ‘principal’, ‘agent’ as well as various provisions relating to the
principal and agent as well as their duties and liabilities. Section 182 to 238 of the Act states such
provisions. It also provides provision regarding nature of principal – agent relationship as well as extends
the liabilities of both principal and agent. The Act, under section 183, states that no person can be an
agent unless he attains the age of majority and has a sound mind. In the words of Lord Chelmsford, “it
has been established by law that a master is liable to third persons for any injury or damage done
through the negligence or unskillfulness of a servant acting in his master’s employ. The reason is that
every act done by the servant in the course of his duty is regarded as done by his master’s order, and,
consequently it is the same as if it were master’s act”.

For example, A has a car Driver B. If he negligently knocks down X, then A will be liable. But if he hires a
taxi towards railway station and the taxi driver negligently hits X, then A will not be liable towards X
because the taxi driver is not the servant of A but an independent contractor. In every case involving
vicarious liability, the doctrine of ‘Respondeat Superior’ (let the master answer) will be applicable. In
every instance which leads to the situation of vicarious liability, the employer-employee or the principal-

Page 16 of 80

Compiled by Rahul Kumar Singh

agent relationship will be the key factor. In such instances, the principle will be liable for the act done by
his agent. There are three elements generally:

1. Was the act committed within the time and space limit of the agency?

2. Was the offense confidential, or of the same general nature as, the responsibilities the agent is
authorized to perform?

3. Was the agent motivated to any degree to benefit the principal by committing the act?

In the Contract Act, it is up to the principal to prove whether the act committed by his agent does not
come under the frame of their principal agent relationship and if he fails to prove so, he will be held
liable for the act done by his agent under the head of vicarious liability. In India, there are various cases
involving offenses done by the agent and the principal being liable for the same.

In the case of State of Rajasthan v. Smt Shekhu and ors, the deceased and his brother were going on a
bicycle and a jeep which was owned by Distt. Collector came from the opposite side and hit them which
resulted in the death of the deceased. In this case, the Court clearly stated that definition of ‘vicarious
liability’ means that one person takes or supplies the place of another so far as the liability is concerned.
It means the liability of a person for the tort of another in which he had no part. The court also stated
that an owner of a car would be liable for an accident caused by his servant during the time of his
employment. From this statement, it was made clear that in this case, the respondent was held liable. In
many other cases such as [Link] v. [Link] and ors, the Supreme Court held that vicarious liability
would apply to companies also as the case dealt with the liability of a deputy manager of a bank in the
issue of a dishonored cheque.

Exceptions to the Liability

There are certain exceptions granted to the principal from the acts done by his servant which comes
under vicarious liability which include:

 Act was done by the agent other than the one stated by the principal.

 Act was done by the agent which does not come under the agency norms between them.

 An act was done by the person before or after termination of the contract of agency.

Even though there are various other exceptions, these are the general exceptions levied under the
provisions regarding vicarious liability in India.

Q. Explain the principles underlying the maxim 'Volenti non fit injuria' with a suitable illustration.
What a defendant, who relies on the defence of 'Volenti non fit injuria', must show? State limitations
of this doctrine.
Page 17 of 80

Compiled by Rahul Kumar Singh

Volenti non fit injuria is a defence of limited application in tort law. A direct translation of the latin
phrase volenti non fit injuria is, 'to one who volunteers, no harm is done'. Where the defence of volenti
applies it operates as a complete defence absolving the Defendant of all liability. It is often stated that
the Claimant consents to the the risk of harm, however, the defence of volenti is much more limited in
its application and should not be confused with the defence of consent in relation to trespass. The
defence of volenti non fit injuria requires a freely entered and voluntary agreement by the Claimant, in
full knowledge of the circumstances, to absolve the Defendant of all legal consequences of their actions.

When a tort is committed, meaning that a defendant’s actions interfered with the plaintiff’s person or
property, a plaintiff’s consent will excuse the defendant of the wrongdoing. Although a defendant’s
conduct may be considered immoral, or harmful, if the plaintiff allows these interferences to occur, then
the defendant is not considered to have committed a tort. Consent occurs when a plaintiff displays a
willingness to participate in the defendant’s conduct. The consent may be either— (1) express, or (2)
implied.

In Dr. Laxman Balkrishan Verses Trimbak Bapu, the Supreme Court held that if a doctor does not apply
due care during the operation, he will be liable even after the patients' consent for suffering loss during
operation. In the case the patient died because proper primary care was not taken while giving
anaesthesia.

Volenti non fit injuria and contributory negligence, In case of volenti non fit injuria the plaintiff is
always aware of the nature and extent of the danger which he encounters while it is not so in case of
contributory negligence. Volenti non fit injuria is a complete defence while in contributory negligence
the claim of the plaintiff is reduced to the extent the claimant himself was to blame for the loss.

Essential Conditions of Doctrine of Volenti Non fit Injuria:

1. Consent must be freely given, It is necessary for the application of this maxim that the consent
must be freely given. The consent is not free, if it has been obtained by undue influence, coercion, fraud,
misrepresentation, mistake or the like elements which adversely affects a free consent.

In White Verses Blackmore, the plaintiffs husband paid for admission of his family for witnessing a car
race. During the race a car got entangled in the safety rope and the plaintiff was catapulted some
twenty feet and died consequently. It was held that since the deceased did not have full knowledge of
the risk he was running from the faulty lay out of the ropes, he did not willingly accept the risk.

2. Consent cannot be given to an illegal act, No consent can legalise an unlawful act or an act which is
prohibited by law and when the tort, is of such a character as to amount to a crime, for example,
fighting with naked fists, duel with sharp swords are unlawful, and even though the parties may have
consented, yet the law will permit an action at the instance of the plaintiff.

Page 18 of 80

Compiled by Rahul Kumar Singh

3. Knowledge of risk is not the same thing as consent to run the risk, the maxim is volenti nonfit
injuria and not the scinti non-fit injuria — knowledge of danger does not necessarily imply a consent to
bear that danger.

This doctrine was for the first time enunciated in Smith Verses Baker. In this case, the plaintiff worked in
a cutting on the top of which a crane was carrying heavy stone over his head while he was drilling the
rock face in the cutting. Both he and employers knew that there was a risk of stones falling, but no
warning was given to him of the moment at which any particular jibbing commenced. A stone from the
crane fell upon him and injured. The House of Lords held that defendants were liable.

Thus, for the maxim volenti non-fit injuria to apply two things are necessary,

(1) knowledge that risk is there, and

(2) voluntary acceptance of the risk.

Limitations of the ‘ Volenti non-fit injuria’

1. Rescue Cases

2. Unfair Contract Terms

[Link] Cases- Winfield described rescue cases as under — Rescue cases are typified by A’s death or
injury in rescuing or endeavoring to rescue B from an emergency or danger to B's life or limb created by
the negligence of C Is C liable to A"! Doctrine of assumption of risk does not apply where plaintiff has
under an exigency caused by defendant's wrongful misconduct, consciously and deliberately, faced a
risk, even of death to rescue another from imminent danger of personal injury or death, the defense of
leave and license is not applicable to the plaintiff, whether the person endangered was one to whom he
owed a duty of protection as a member of his family, or was a mere stranger lo whom he owed no such
duty.

In Haynes v Harwood [1935] 1 KB 146, The Defendant left a horse-drawn van unattended in a crowded
street. The horses bolted when a boy threw a stone at them. A police officer tried to stop the horses to
save a woman and children who were in the path of the bolting horses. The police officer was injured. It
was held that the Defendant owed a duty of care as he had created a source of danger by leaving his
horses unattended in a busy street.

In the case of Wagner v. International Railway (232 N.Y. 176, 133 N.E. 437 (1921) because International
Railway was negligent someone fell out of one of their trains. A second person attempted to rescue the
first person and was also injured. International Railway argued that the second person purposely put
themselves in danger and so were responsible for their own injuries. However, the Court held that
International Railway was also liable for injuries to the rescuer, since it was entirely foreseeable that
someone would try to rescue someone in trouble, and it was within the scope of proximate cause.

Page 19 of 80

Compiled by Rahul Kumar Singh

In Dr. J.N. Srivastava Verses Ram Bihari Lal and others, where the doctor observed after opening the
abdomen cavity that patient's appendix was all right but the operation of Gall-bladder was needful. He
proceeded with the operation— later on the patient died. The Court held that it was not possible to
seek the consent for the Gall-bladder operation. In such situations doctor was not responsible.

If the plaintiff is not acting under compulsion of any duty, moral or legal he will not be entitled to recover
anything. - In Cutler Verses United Dairies London Limited., the plaintiff saw a horse belonging to a
driver getting out of his control and voluntarily went to his assistance and was thrown back by the horse
and hurt. It was held that the maxim applied and the plaintiff was disentitled from recovering damages,
as he knew that the act was fraught with danger and he willingly undertook the same.

2. Unfair Contract Terms- In England, not in India, a new development took place in 1977, when the
Parliament passed Unfair Contract Terms Act, which limits the right of a person to restrict or exclude his
liability resulting from his negligence by a contract term or by notice. Section 2 of the Unfair Contract
Terms Act, provides, (1) A person cannot by reference to any contract term or to a notice given to
person generally or to particular persons exclude or restrict his liability for death or personal injury
resulting from negligence. (2) In the case of other loss or damage, a person cannot so exclude or restrict
his liability for negligence except in so far as the terms or notice satisfies the requirement of
reasonableness. (3) When a contract term or notice purports to exclude or restrict his liability for
negligence a person's agreement to or awareness of it is not of itself to be taken 'as indicating his
voluntary acceptance of any risk. Thus, section 2 of the Unfair Contract Terms Act, 1977, is another
limitation of the maxim ' Volenti Non Fit Injuria'.

Q. "A master is answerable for every such wrong act of a servant as committed in the course of
service" (Salmond). Explain and discuss the basic elements to constitute a master - servant
relationship. For what kind of act of the servant the master is generally liable?

Vicarious Liability happens to hold utmost importance under the Legal Reasoning section in the
Common Law Admission Test. Our last article dealt with it in brief. This write-up intends to give a very
clear understanding of the subject, in detail.

Master and Servant

A servant and independent contractor are both employed to do some work of the employer but there is
a difference in the legal relationship which the employer has with them. A servant is engaged under a
contract of service whereas an independent contractor is engaged under a contract for services.

The liability of the employer for the wrongs committed by his servant is more onerous than his liability
in respect of wrongs committed by an independent contractor. It is, therefore, necessary to distinguish
between the two.

Page 20 of 80

Compiled by Rahul Kumar Singh

Traditional View – Test of Control:

In case of a servant, the employer in addition to directing what work the servant is to do, can also give
directions to control the manner of doing the work; but in case of an independent contractor, the
employer can only direct what work is to be done but he cannot control the manner of doing the work.
Master’s power of selection of his servant, payment of wages or other remuneration, master’s right to
control the method of doing the work and master’s right of suspension or dismissal are the four indicia
of a contract of service.

Modern View – Control Test not exclusive:

The control test fails when applied to skilled and particularly professional work and, therefore, in recent
years it has not been treated as an exclusive test.

The existence of the right of the master to supervise and control the execution of the work done by the
servant is a prima facie test but the nature of the control may vary from business to business and is by
its nature incapable of any precise definition and it is not necessary that the employer should be proved
to have exercised control of the work of the employee.

One feature which seems to run through the instances of many cases dealt on this issue is that under a
contract of service, a man is employed as a part of the business; and his work is done as an integral part
of the business; whereas under a contract for services, his work, although done for the business, is not
integrated into it but is only accessory to it.

Control is obviously an important factor in determining whether it is a contract of service and in many
cases it may still be the decisive factor, but it is wrong to say that in every case it is decisive. The degree
of control and supervision would be different in different types of business and that ‘if an ultimate
authority over the worker in the performance of his work resided in the employer so that he was subject
to the latter’s direction that would be sufficient’.

Where a vehicle is let out on hire with the service of a driver, and an accident occurs through the
negligent act of the driver causing personal injuries to a third person, one test for determining who is
the master for purposes of vicarious liability, is the answer to the question – whether the driver in doing
of the negligent act was exercising the discretion given to him by his regular employer, or whether he
was obeying a specific order of the hirer for whom, on his employer’s direction, he was using the
vehicle. Ordinarily, when a vehicle is hired with its driver, the driver continues to exercise his own
discretion which has been vested in him by his regular master. But, if the hirer intervenes to give
directions as to how to drive for which he possesses no authority and the driver, for the occasion,
complies with them and an accident occurs resulting in an injury to the third party, the hirer is liable as
joint tort-feasor and the general employer is not liable.

Extent of Liability of Master

Page 21 of 80

Compiled by Rahul Kumar Singh

A master is vicariously liable for the acts of his servants acting in the course of employment. Unless the
act is done in the course of employment, the servant’s act does not make the employer liable. In other
words, for the master’s liability to arise, the act must be a wrongful act authorized by the master or a
wrongful and unauthorized mode of doing some act authorized by the master.

If the servant, at the time of the accident, is not acting within the course of employment but is doing
something for himself, the master is not liable. It is the link of the master’s business with the servant’s
wrongful act which makes the master liable. So the plaintiff to obtain a judgment against the master
must establish a relationship between the servant’s act and the master’s business.

The question will be whether the servant was just doing the job badly or not doing the job at all, doing
his own thing instead. In other words, if the unauthorized and wrongful act of the servant is not so
connected with the authorized act as to be a mode of doing it, but is an independent act, the master is
not responsible; for in such a case the servant is not acting in the course of the employment but has
gone outside of it.

Effect of Prohibition

It is not the law that whenever a servant does an act which his employer has prohibited him from doing,
the act so done falls outside the course of employment. Prohibitions fall under two categories:

Those which limit the scope or sphere of employment; and

Those which merely affect or restrict the mode of doing the act for which the servant is employee.

If a servant violates a prohibition of the first category, his act will be outside the course of employment
and the master will not be vicariously liable; but if the violation by the servant is only of a prohibition of
the second category, the servant’s act will still be in the course of employment making the master liable.

The drivers of omnibuses were furnished with printed instructions saying that ‘they must not on any
account race with or obstruct another omnibus’. Nevertheless, the driver of the defendant’s omnibus
did obstruct a rival omnibus and caused an accident in which the plaintiff’s horses were injured. The
defendant was liable because what his driver did was merely an unauthorized mode of doing what he
was authorized to do, namely, to promote the defendant’s business.

Dishonest and Criminal Acts

A master is not liable for a dishonest or criminal act of his servant where the servant merely takes the
opportunity afforded by his service to commit the wrongful act. For example, if a window cleaner steals
an article from the room where he is doing the window cleaning work, his master is not liable. Similarly,
when a servant assaults another, whom he meets in the course of his work, out of personal vendetta,
and the assault has no relation to the master’s work, the master is not liable.

Page 22 of 80

Compiled by Rahul Kumar Singh

But if the wrongful act is done for the benefit of the master and while doing his business, the master is
liable.

The master is answerable for every such wrong of the servant or agent as is committed in the course of
the service and for the master’s benefit; though no express command or privity of the master is proved.

The master will also be liable if the servant while doing the wrongful act was acting within the apparent
scope of his authority even though the act was done for his own benefit or for the benefit of some
person other than the master.

The managing clerk of a firm of solicitors induced a client of the firm to transfer a mortgage to him by
fraudulently representing the nature of the deed and, thereupon, obtained and misappropriated the
mortgage money. The solicitors were held liable as their managing clerk in accepting the deed was
acting within the apparent scope of his authority although fraudulently for his own benefit.

Employer and Independent Contractor

An independent contractor is one who undertakes to produce a given result without being in any way
controlled as to the method by which he attains that result. In the actual execution of the work he is not
under the order or control of the person for whom he does it, but uses his own discretion in things not
specified beforehand.

A servant is an agent who works under the supervision, control and direction of his employer.

If an independent contractor as distinguished from a servant is employed to do some work and in the
course of the work he or his servants commit any tort, the employer is not answerable.

Exceptions:

Where the employer retains his control over the contractor and personally interferes and makes himself
a party to the act which occasions the damage.

Where the thing contracted to be done is itself wrongful. In such a case the employer is responsible for
the wrong done by the contractor or his servants, and is liable to third persons who sustain damage
from the wrong doing. For instance, if a man employs a contractor to build a house, who builds it so as
to darken another person’s windows, the remedy is not against the builder, but the owner of the house.
When the trustees of a temple employed a contractor to get electric connection for use of lighting and
mike arrangements in the temple from the well of an agriculturist without informing and obtaining the
permission of the electricity board and a person was injured as the wires used by the contractor
snapped, the trustees were held liable as the act of diverting electricity without permission of the board
was an itself an illegal act.

When legal or statutory duty is imposed on the employer, he is liable for any injury that arises to others
in consequence of its having been negligently performed by the contractor. If a man does work on or
Page 23 of 80

Compiled by Rahul Kumar Singh

near another’s property, which involves danger to that property unless proper care is taken, he is liable
to the owners of the property for damage resulting to it from failure to take proper care, and is equally
liable if, instead of doing the work himself, he procures another to do it for him. When a person employs
a contractor to work in a place where the public are in a habit of passing, which work will, unless
precautions are taken, cause danger to the public, an obligation is thrown upon the person who orders
the work to be done to see that the necessary precautions are taken, and if the necessary precautions
are not taken, he cannot escape liability by seeking to throw the blame on the contractor. It is the duty
of a person who is causing such work to be executed to see that they are properly carried out so as not
to occasion any damage to persons passing by on the highway.

When the work contracted to be done is from its nature likely to cause danger to others, in such cases
there is a duty on the part of the employer to take all reasonable precautions against such danger, and if
the contractor does not take these precautions, the employer is liable.

It is his duty to use every reasonable precaution that care and skill may suggest in the execution of his
works, so as to protect his neighbors from injury, and he cannot get rid of the responsibility thus cast on
him by transferring that duty to another.

But the employer will not be liable of the contractor was not acting within the scope of his contract, but
was a trespasser when he did the act complained of.

When the defendant employed a contractor to pull down an old house and erect a new one, and the
contractor expressly undertook to support the plaintiff’s house, and to be liable for all damage, it was
held that the defendant was liable for the damage.

Q. "Negligence is a tort which involves a person 's breach of duty, that is imposed upon him to take
care, resulting damage to the complainant". In the light of the above statement define negligence and
bring out its essentials. What is contributory negligence?

MEANING: In everyday usage, the word ‘negligence’ denotes mere carelessness. In legal sense it
signifies failure to exercise standard of care which the doer as a reasonable man should have exercised
in the circumstances. In general, there 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 harms may
be caused by not taking such adequate precautions.

DEFINITION
· WINFIELD AND JOLOWICZ: Negligence is the breach of a legal duty to take care which results in
damage, undesired by the defendant to the plaintiff

Page 24 of 80

Compiled by Rahul Kumar Singh

· In Blyth v. Birmingham Water Works Co., (1856) LR 11 Exch. 781; ALDERSON, B. defined negligence as,
negligence is the omission to do something which a reasonable man would do, or doing something
which a prudent or reasonable man would not do.

· In Lochgelly Iron & Coal Co. v. Mc Mullan, 1934 AC 1; LORD WRIGHT said, negligence means more than
headless or careless conduct, whether in commission or omission; it properly connotes the complex
concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.

ESSENTIALS OF NEGLIGENCE: - In an action for negligence, the plaintiff has to prove the following
essentials:

1. DUTY TO TAKE CARE: One of the essential conditions of liability for negligence is that the defendant
owed a legal duty towards the plaintiff. The following case laws will throw some light upon this essential
element.

· In Grant v. Australian Knitting Mills Ltd., 1935 AC 85; the plaintiff purchased two sets of woolen
underwear from a retailer and contacted a skin disease by wearing an underwear. The woolen
underwear contained an excess of sulphates which the manufacturers negligently failed to remove while
washing them. The manufacturers were held liable as they failed to perform their duty to take care.

2. 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
neighbour 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 omissions which are called in question”.

3. DUTY MUST BE TOWARDS THE PLAINTIFF- It is not sufficient that the defendant owed a duty to take
care. It must also be established that the defendant owed a duty of care towards the plaintiff.

· In Bourhill v. Young, 1943 AC 92; the plaintiff, a fishwife, alighted from a tram car. While she was being
helped in putting her basket on her back, a motor-cyclist after passing the tram collided with a motor car
at the distance of 15 yards on the other side of the tram and died instantly. The plaintiff could see
neither the deceased nor the accident as the tram was standing between her and the place of accident.
She had simply heard about the collision and after the dead body had been removed she went to the
place and saw blood left on the road. Consequently, she suffered a nervous shock and gave birth to a
still-born child of 8 months. She sued the representatives of the deceased motor-cyclist. It was held that
the deceased had no duty of care towards the plaintiff and hence she could not claim damages.

4. 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 that duty.

Page 25 of 80

Compiled by Rahul Kumar Singh

· In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750; a clock-tower in the heart of the
Chandni Chowk, Delhi collapsed causing the death of a number of persons. The structure was 80 years
old whereas its normal life was 40-45 years. The Municipal Corporation of Delhi having the control of
the structure failed to take care and was therefore, liable.

· In Municipal Corporation of Delhi v. Sushila Devi, AIR 1999 SC 1929; a person passing by the road died
because of fall of branch of a tree standing on the road, on his head. The Municipal Corporation was
held liable.

5. CONSEQUENT DAMAGE OR CONSEQUENTIAL HARM TO THE PLAINTIFF: The last essential requisite
for the tort of negligence is that the damage caused to the plaintiff was the result of the breach of the
duty. The harm may fall into following classes:-

· physical harm, i.e. harm to body;

· harm to reputation;

· harm to property, i.e. land and buildings and rights and interests pertaining thereto, and his goods;

· economic loss; and

· mental harm or nervous shock.

· In Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634; a cotton mop was left inside
the body by the negligence of the doctor. The doctor was held liable.

DEFENCES FOR NEGLIGENCE: 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. In U.S. law, the burden of proof for
contributory negligence sits squarely on the shoulders of the defendant to prove to the court that the
plaintiff was also negligent, contributing to his own injury or damages.

In determining whether or not there is contributory negligence on the part of a plaintiff, the court uses
the same standard of care as other types of negligence: did the plaintiff do everything that any other
reasonable person would have done under the same or similar circumstances. Any act or failure to act
on the part of the plaintiff that can be seen as a proximate cause of the plaintiff’s damages, amounts to
contributory negligence. Any act which, while increasing or adding to the damages, did not cause the
incident, is not usually considered contributory negligence for the purpose of precluding an award for
damages.

For example:

Page 26 of 80

Compiled by Rahul Kumar Singh

Ella is on her way home from work when she is hit by a car, which ran a red light. Ella’s laptop and purse
were on the passenger seat of her car at the time of the accident, and her laptop slammed into her
head, causing a deep laceration and a concussion. Ella’s placement of the laptop on the front seat,
without restraint, certainly added to the severity of her injuries, but it had nothing to do with the cause
of the accident. In other words, the accident would not have been avoided had Ella placed her laptop in
the trunk. Therefore, this situation is not considered contributory negligence.

· 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 was 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.

· 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.

Page 27 of 80

Compiled by Rahul Kumar Singh

Q. Explain the doctrine of "Res-ipsa loquitor".

Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself." In personal injury law, the
concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule that allows
plaintiffs to establish a rebuttable presumption of negligence on the part of the defendant through the
use of circumstantial evidence. This means that while plantiffs typically have to prove that the
defendant acted with a negligent state of mind, through res ipsa loquitur, if the plaintiff puts forth
certain circumstantial facts, it becomes the defendant's burden to prove he or she was not negligent.

Background

Accidents happen all the time, and the mere fact that an accident has occurred doesn't necessarily mean
that someone's negligence caused it. In order to prove negligence in a personal injury lawsuit, a plaintiff
must present evidence to demonstrate that the defendant's negligence resulted in the plaintiff's injury.
Sometimes, direct evidence of the defendant's negligence doesn't exist, but plaintiffs can still use
circumstantial evidence in order to establish negligence.

Circumstantial evidence consists of facts that point to negligence as a logical conclusion rather than
demonstrating it outright. Rather than directly proving a defendant's negligence, circumstantial
evidence allows judges and juries to infer negligence based on the totality of the circumstances and the
shared knowledge that arises out of human experience.

Res ipsa is one type of circumstantial evidence that allows a reasonable fact finder to determine that the
defendant's negligence caused an unusual event that subsequently caused injury to the plaintiff. The res
ipsa doctrine arose out of a case where the plaintiff suffered injuries from a falling barrel of flour while
walking by a warehouse. At the trial, the plaintiff's attorney argued that the facts spoke for themselves
and demonstrated the warehouse's negligence since no other explanation could account for the cause
of the plaintiff's injuries.

As it has developed since then, res ipsa allows judges and juries to apply common sense to a situation in
order to determine whether or not the defendant acted negligently.

Elements of Res Ipsa Loquitur

Since the laws of personal injury and evidence are determined at the state level, the law regarding res
ipsa loquitur varies slightly between states. That said, a general consensus has emerged, and most states
follow one basic formulation of res ipsa.

Under this model for res ipsa, there are three requirements that the plaintiff must meet before a jury
can infer that the defendant's negligence caused the harm in question:

 The event doesn't normally occur unless someone has acted negligently;
Page 28 of 80

Compiled by Rahul Kumar Singh

  The evidence rules out the possibility that the actions of the plaintiff or a third party caused the
injury; and

 The type of negligence in question falls with the scope of the defendant's duty to the plaintiff.

The Presence of Negligence

As mentioned above, not all accidents occur because of someone else's negligence. Some accidents, on
the other hand, almost never occur unless someoneDefa has acted negligently.

Going back to the old case of the falling flour-barrel, it's a piece of shared human knowledge that things
don't generally fall out of warehouse windows unless someone hasn't taken care to block the window or
hasn't ensured that items on the warehouse floor are properly stored. When something does fall out of
a warehouse window, the law will assume that it happened because someone was negligent.

Only the Defendant Is Responsible

The second component of a res ipsa case hinges on whether the defendant carries sole responsibility for
the injury. If the plaintiff can't prove by a preponderance of the evidence that the defendant's
negligence cause the injury, then they will not be able to recover under res ipsa.

States sometimes examine whether the defendant had exclusive control over the specific
instrumentality that caused the accident in order to determine if the defendant's negligence caused the
injury. For example, if a surgeon leaves a sponge inside the body of a patient, a jury can infer that the
surgeon's negligence caused the injury since he had exclusive control over the sponges during the
operation.

The Defendant Owes the Plaintiff a Duty of Care

In addition to the first two elements, the defendant must also owe a duty of care to protect the plaintiff
from the type of injury at issue in the suit. If the defendant does not have such a duty, or if the type of
injury doesn't fall within the scope of that duty, then there is no liability.

For example, in many states, landowners don't owe trespassers any duty to protect them against certain
types of dangers on their property. Thus, even if a trespasser suffers an injury that was caused by the
defendant's action or inaction and that wouldn't normally occur in the absence of negligence, res ipsa
loquitur won't establish negligence since the landowner never had any responsibility to prevent injury to
the trespasser in the first place.

Rebutting Res Ipsa

Res ipsa only allows plaintiffs to establish the inference of the defendant's negligence, not to prove the
negligence completely. Defendants can still rebut the presumption of negligence that res ipsa creates by
refuting one of the elements listed above.

Page 29 of 80

Compiled by Rahul Kumar Singh

For example, the defendant could prove by a preponderance of the evidence that the injury could occur
even if reasonable care took place to prevent it. An earthquake could shake an item loose and it could
fall out of the warehouse window, for instance.

A defendant could also demonstrate that the plaintiff's own negligence contributed to the injury. To go
back to the flour-barrel example, if the defendant shows that the plaintiff was standing in an area
marked as dangerous it could rebut the presumption of negligence created by res ipsa.

Finally, the defendant could establish that he did not owe the plaintiff a duty of care under the law, or
that the injury did not fall within the scope of the duty owed. For example, if the law only imposes a
limited duty on the defendant not to behave recklessly, then res ipsa will not help the plaintiff by
creating an inference of negligence since a negligent action would not violate the duty owed to the
plaintiff.

Q. What is defamation? Explain the conditions which may be said to be required to constitute
defamation. Explain libel and Slander and distinguish between the two.

A man’s reputation is more valuable than other property. Everyman has the right to protection of his
reputation. Injury to one’s reputation has been termed as defamation. Defamation is an act which
constitutes both civil & criminal liability. The object of law of defamation is to maintain the balance
between freedom of speech and right of reputation.

Defamation is defined by the eminent jurist as under –

“Defamation is the publication of a statement which tends to lower a person in the estimation of right
thinking members of society generally or which tend to make them shun or avoid that person” Dr.
Winfield

“Defamation is the publication of false & defamatory statement regarding another without any
justification” Salmond

Indian Law - In India both civil & criminal action can be taken against defamation. Sec 499 of I.P.C
defines defamation as publication of false statement with intentions, while the liability for defamation
in tort does not depend on the motive or malice of the defendant. The distinction between Libel &
Slander is not recognized under Indian Law.

To prove either type of defamation, plaintiffs must prove the following four elements:

1. First, the plaintiff must prove that the defendant made a false and defamatory statement
concerning the plaintiff.

Page 30 of 80

Compiled by Rahul Kumar Singh

 2. Second, the plaintiff must prove that the defendant made an unprivileged publication to a third
party.

3. Third, the plaintiff must prove that the publisher acted at least negligently in publishing the
communication.

4. Fourth, in some cases, the plaintiff must prove special damages.

Defamatory Statements

One essential element in any defamation action is that the defendant published something defamatory
about the plaintiff. A communication may be considered defamatory "if it tends so to harm the
reputation of another as to lower him in the estimation of the community or to deter third persons from
associating with him," according to the American Restatement of Torts (or "The Restatement").
Examples of defamatory statements are virtually limitless and may include any of the following:

 A communication that suggests the plaintiff was involved in a serious crime involving moral
turpitude or a felony

 A communication that exposes a plaintiff to ridicule

 A communication that reflects negatively on the plaintiff's character, morality, or integrity

 A communication that impairs the plaintiff's financial well-being

 A communication that suggests that the plaintiff suffers from a physical or mental defect that
would cause others to refrain from associating with the plaintiff

Courts have long struggled with the task of determining a standard for deciding whether a statement is
defamatory. Many statements may be viewed as defamatory by some individuals, but the same
statement may not be viewed as defamatory by others. But generally, courts require a plaintiff to prove
that he or she has been defamed in the eyes of the community or within a defined group within the
community. Juries usually decide this question.

Courts have struggled to some degree with the treatment of statements of opinions. In common law,
statements of opinion could form the basis of a defamation action similar to a statement of pure fact.
Generally, if a statement implies defamatory facts as the basis of the opinion, then the statement may
be considered libel or slander.

Publication Requirement: Another requirement in libel and slander cases is that the defendant must
have published defamatory information about the plaintiff. "Publication" certainly includes traditional
forms, such as books, newspapers, and magazines, but it also includes oral remarks. A streaming audio
clip on the Internet may be considered a publication in this context. So long as the person to whom a

Page 31 of 80

Compiled by Rahul Kumar Singh

statement has been communicated can understand the meaning of the statement, courts will generally
find that the statement has been published.

Meaning of a Communication: In some instances, the context of a statement may determine whether
the statement is defamatory. The Restatement provides as follows: "The meaning of a communication is
that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to
express." Courts generally will take into account associated facts and circumstances in determining the
meaning of the statement. So even where two statements are identical in their words, one may be
defamatory while the other is not, depending on the context of the statements.

Reference to the Plaintiff: In a defamation action, the recipient of a communication must understand
that the defendant intended to refer to the plaintiff in the communication. Even where the recipient
mistakenly believes that a communication refers to the plaintiff, this belief, so long as it is reasonable, is
sufficient. It is not necessary that the communication refer to the plaintiff by name. A defendant may
publish defamatory material in the form of a story or novel that apparently refers only to fictitious
characters, where a reasonable person would understand that a particular character actually refers to
the plaintiff. This is true even if the author states that he or she intends for the work to be fictional.

In some circumstances, an author who publishes defamatory matter about a group or class of persons
may be liable to an individual member of the group or class. This may occur when: (1) the
communication refers to a group or class so small that a reader or listener can reasonably understand
that the matter refers to the plaintiff; and (2) the reader or listener can reasonably conclude that the
communication refers to the individual based on the circumstances of the publication.

Libel & Slander

Libel – Libel is the defamation in a written permanent form, normally addressed to the eye, through
printed picture caricature, film etc. it is self prosecuted i.e. it shall not be necessary to allege or prove
special damage.

Slander – It is the defamation in a oral, temporary form, normally addressed to the ear, through words
or gesture. It is not self prose cured i.e it shall be necessary to allege or prove special damage.

Difference between Libel & Slander -

1. Nature – In Libel the defamation statement is made in some permanent & visible form, such as
written printing & pictures etc while in slander defamation statement is made by some spoken words
whether visible or audible such as gesture etc. it is therefore generally said that libel is addressed to the
eye & slander is addressed to the ears.

2. Scope – Libel is actionable perse (in itself) i.e. without proof of actual damage, where as slander is
actionable only on proof of actual damage.

Page 32 of 80

Compiled by Rahul Kumar Singh

3. Injury - Libel is not merely an actionable tort but also a criminal offence while slander is a civil injury
only and not a criminal offence except in some cases.

4. Limitation – Limitation for instituting criminal proceeding or civil suit against the defendant for libel in
6 yr in England and 1 yr in India while in Slander it is 2 yr & 1 yr respectively.

Indian Law - In India both civil & criminal action can be taken against defamation. Sec 499 of I.P.C defines
defamation as publication of false statement with intentions, while the liability for defamation in tort
does not depend on the motive or malice of the defendant. The distinction between Libel & Slander is
not recognized under Indian Law.

Defences

1. Justification of truth – In an action for defamation, truth of the defamatory statement is a complete
defence. It is not necessary for the defendant to prove that every words of the defamatory statement is
true. It will be sufficient, if the statement through not perfectly true is substantially correct.

2. Fair & Bona-fide Comment – Every person is entitled to express his opinion on matters of public
interest is a good defence in an action for defamation.

3. Privileged Statement – There are certain occasion which are so important that those making
statement up on them are not liable in defamation, even through their statement are untrue & even
malicious. The privilege is of two kinds-

(A) Absolute Privilege – A statement is absolute privileged when no action lies even through it is false,
deliberate or defamation & made out of malice. The defence of absolute privilege is available in :-
(a) Parliamentary Proceedings; (b) Judicial Proceedings; (c) Military & Naval Proceedings; (d) State
Proceedings.

(B) Qualified Privilege – In certain circumstances it is thought desirable that reflection on the reputation
of others although untrue, should not give rise to tortious liability provided that they were not published
with malice. The defence of qualified privilege in an action against defamation may extend to the
statement has been made in discharge of a duty, or when the statement is made in self defence or in
public interest

4. Apology – The offer or the making of an apology is not at common law, a defence although it may be
given in evidence in mitigation of damage. The plea of apology is maintainable only when the person
defamed accepted the apology.

Innuendo - Sometimes the statements may not be Prima facie defamatory and they appear to be
innocent in their natural & ordinary sense but because of some latent or secondary meaning the plaintiff
may prove that they are defamatory & carry a libelous meaning with reference to him. e.g., where a
proprietor of a newspaper published erroneously the news which he believed to be true, that the
plaintiff (a girl) had given birth to twins although she was married only a month ago, he was held liable
Page 33 of 80

Compiled by Rahul Kumar Singh

for defamation as it indirectly caused as perisions on the character of the girl for giving birth to an
illegitimate child.

Q. Define nuisance. What are the essentials of nuisance as a tort. Discuss kinds of nuisance.

The word “nuisance” is derived from the French word “nuire”, which means “to do hurt, or to annoy”.
One in possession of a property is entitled as per law to undisturbed enjoyment of it. If someone else’s
improper use in his property results into an unlawful interference with his use or enjoyment of that
property or of some right over, or in connection with it, we may say that tort of nuisance occurred. In
other words, Nuisance is an unlawful interference with a person’s use or enjoyment of land, or of some
right over, or in connection with it. Nuisance is an injury to the right of a person in possession of a
property to undisturbed enjoyment of it and result from an improper use by another person in his
property.

Stephen defined nuisance to be “anything done to the hurt or annoyance of the lands, tenements of
another, and not amounting to a trespass.”

According to Salmond, “the wrong of nuisance consists in causing or allowing without lawful justification
the escape of any deleterious thing from his land or from elsewhere into land in possession of the
plaintiff, e.g. water, smoke, fumes, gas, noise, heat, vibration, electricity, disease, germs, animals”.

ESSENTIALS OF NUISANCE: In order that nuisance is actionable tort, it is essential that there should
exist:

· wrongful acts;

· damage or loss or inconvenience or annoyance caused to another. Inconvenience or discomfort to be

considered must be more than mere delicacy or fastidious and more than producing sensitive personal
discomfort or annoyance. Such annoyance or discomfort or inconvenience must be such which the law
considers as substantial or material.

In Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13, the plaintiffs’-appellants sued the
defendants-respondents for a permanent injunction to restrain them from exhibiting the film “Jai
Santoshi Maa”. It was contended that exhibition of the film was a nuisance because the plaintiff’s
religious feelings were hurt as Goddesses Saraswati, Laxmi and Parvati were defined as jealous and were
ridiculed.
It was held that hurt to religious feelings was not an actionable wrong. Moreover the plaintiff’s were
free not to see the movie again.

In Halsey v. Esso Petroleum Co. Ltd. (1961) 2 All ER 145:,the defendant’s depot dealt with fuel oil in its
light from the chimneys projected from the boiler house, acid smuts containing sulphate were emitted

Page 34 of 80

Compiled by Rahul Kumar Singh

and were visible falling outside the plaintiff’s house. There was proof that the smuts had damaged
clothes hung out to dry in the garden of the plaintiff’s house and also paint work of the plaintiff’s car
which he kept on the highway outside the door of his house. The depot emanated a pungent and
nauseating smell of oil which went beyond a background smell and was more than would affect a
sensitive person but the plaintiff had not suffered any injury in health from the smell. During the night
there was noise from the boilers which at its peak caused window and doors in the plaintiff’s house to
vibrate and prevented the plaintiff’s sleeping. An action was brought by the plaintiff for nuisance by acid
smuts, smell and noise.

The defendants were held liable to the plaintiff in respect of emission of acid smuts, noise or smell.

KINDS OF NUISANCE:

· Public Nuisance: Section 268 of the Indian Penal Code, defines it as “an act or illegal omission which
causes any common injury, danger or annoyance, to the people in general who dwell, or occupy
property, in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to
persons who may have occasion to use any public right.”

Simply speaking, public nuisance is an act affecting the public at large, or some considerable portion of
it; and it must interfere with rights which members of the community might otherwise enjoy.

Thus acts which seriously interfere with the health, safety, comfort or convenience of the public
generally or which tend to degrade public morals have always been considered public nuisance.

Examples of public nuisance are Carrying on trade which cause offensive smells, Malton Board of Health
v. Malton Manure Co., (1879) 4 Ex D 302; Carrying on trade which cause intolerable noises, Lambton v.
Mellish, (1894) 3 Ch 163; Keeping an inflammable substance like gunpowder in large quantities, Lister’s
case, (1856) 1 D & B 118; Drawing water in a can from a filthy source, Attorney General v. Hornby,
(1806) 7 East 195

Public nuisance can only be subject of one action, otherwise a party might be ruined by a million suits.
Further, it would give rise to multiplicity of litigation resulting in burdening the judicial system. Generally
speaking, Public Nuisance is not a tort and thus does not give rise to civil action.

In the following circumstances, an individual may have a private right of action in respect a public
nuisance.

1. He must show a particular injury to himself beyond that which is suffered by the rest of public i.e. he
must show that he has suffered some damage more than what the general body of the public had to
suffer.
Page 35 of 80

Compiled by Rahul Kumar Singh

2. Such injury must be direct, not a mere consequential injury; as, where one is obstructed, but another
is left open.

3. The injury must be shown to be of a substantial character, not fleeting or evanescent.

In Solatu v. De Held (1851) 2 Sim NS 133, the plaintiff resided in a house next to a Roman Catholic
Chapel of which the defendant was the priest and the chapel bell was rung at all hours of the day and
night. It was held that the ringing was a public nuisance and the plaintiff was held entitled to an
injunction.

In Leanse v. Egerton, (1943) 1 KB 323, The plaintiff, while walking on the highway was injured on a
Tuesday by glass falling from a window in an unoccupied house belonging to the defendant, the window
having been broken in an air raid during the previous Friday night. Owing to the fact that the offices of
the defendant’s agents were shut on the Saturday and the Sunday and to the difficulty of getting labour
during the week end, no steps to remedy the risk to passersby had been taken until the Monday. The
owner had no actual knowledge of the state of the premises.

It was held that the defendant must be presumed to have knowledge of the existence of the nuisance,
that he had failed to take reasonable steps to bring it to an end although he had ample time to do so,
and that, therefore, he had “continued” it and was liable to the plaintiff.

In Attorney General v. P.Y.A. Quarries, (1957)1 All ER 894:, In an action at the instance of the Attorney
General, it was held that the nuisance form vibration causing personal discomfort was sufficiently
widespread to amount to a public nuisance and that injunction was rightly granted against the quarry
owners restraining them from carrying on their operations.

· Private Nuisance: Private nuisance is the using or authorising the use of one’s property, or of anything
under one’s control, so as to injuriously affect an owner or occupier of property by physically injuring his
property or affecting its enjoyment by interfering materially with his health, comfort or convenience.

In contrast to public nuisance, private nuisance is an act affecting some particular individual or
individuals as distinguished from the public at large. The remedy in an action for private nuisance is a
civil action for damages or an injunction or both and not an indictment.

Elements of Private Nuisance

Private nuisance is an unlawful interference and/or annoyance which cause damages to an occupier or
owner of land in respect of his enjoyment of the land.

Thus the elements of private nuisance are:

1. unreasonable or unlawful interference;

Page 36 of 80

Compiled by Rahul Kumar Singh

2. such interference is with the use or enjoyment of land, or some right over, or in connection with the
land; and

3. damage.

Nuisance may be with respect to property or personal physical discomfort.

1. Injury to property: In the case of damage to property any sensible injury will be sufficient to support
an action.

In St. Helen Smelting Co. v. Tipping, (1865) 77 HCL 642:, the fumes from the defendant’s manufacturing
work damaged plaintiff’s trees and shrubs. The Court held that such damages being an injury to property
gave rise to a cause of action

In Ram Raj Singh v. Babulal, AIR 1982 All. 285:, the plaintiff, a doctor, complained that sufficient
quantity of dust created by the defendant’s brick powdering mill, enters the consultation room and
causes discomfort and inconvenience to the plaintiff and his patients.

The Court held that when it is established that sufficient quantity of dust from brick powdering mill set
up near a doctor’s consulting room entered that room and a visible thin red coating on clothes resulted
and also that the dust is a public hazard bound to injure the health of persons, it is clear the doctor has
proved damage particular to himself. That means he proved special damage.

In Hollywood Silver Fox Farm Ltd v Emmett, (1936) 2 KB 468:, A carried on the business of breeding
silver foxes on his land. During the breeding season the vixens are very nervous and liable if disturbed,
either to refuse to breed, or to miscarry or to kill their young. B, an adjoining landowner, maliciously
caused his son to discharge guns on his own land as near as possible to the breeding pens for the
purpose of disturbing A’s vixens. A filed a suit for injunction against B and was successful.

In Dilaware Ltd. v. Westminister City Council, (2001) 4 All ER 737 (HL):, the respondent was owner of a
tree growing in the footpath of a highway. The roots of the tree caused cracks in the neighbouring
building. The transferee of the building, after the cracks were detected, was held entitled to recover
reasonable remedial expenditure in respect of the entire damage from the continuing nuisance caused
by the trees.

2. Physical discomfort: In case of physical discomfort there are two essential conditions to be fulfilled:

a. In excess of the natural and ordinary course of enjoyment of the property – In order to be able to
bring an action for nuisance to property the person injured must have either a proprietary or possessory
interest in the premises affected by the nuisance.

b. Materially interfering with the ordinary comfort of human existence: The discomfort should be such
as an ordinary or average person in the locality and environment would not put up with or tolerate.

Page 37 of 80

Compiled by Rahul Kumar Singh

Following factors are material in deciding whether the discomfort is substantial:

# its degree or intensity;

# its duration;

# its locality;

# the mode of user of the property.

In Broadbent v. Imperial Gas Co. (1856) 7 De GM & G 436:, an injunction was granted to prevent a gas
company from manufacturing gas in such a close proximity to the premises of the plaintiff, a market
gardener, and in such a manner as to injure his garden produce by the escape of noxious matter.

In Shots Iron Co. v. Inglis, (1882) 7 App Cas 518: An injunction was granted to prevent a company from
carrying on calcining operations in any manner whereby noxious vapours would be discharged, on the
pursuer’s land, so as to do damage to his plantations or estate.

In Sanders Clark v. Grosvenor mansions Co. (1900) 16 TLR 428: An injunction was granted to prevent a
person from turning a floor underneath a residential flat into a restaurant and thereby causing a
nuisance by heat and smell to the occupier of the flat.

In Datta Mal Chiranji Lal v. Lodh Prasad, AIR 1960 All 632: The defendant established an electric flour
mill adjacent to the plaintiff’s house in a bazaar locality and the running of the mill produced such noise
and vibrations that the plaintiff and his family, did not get peace and freedom from noise to follow their
normal avocations during the day. They did not have a quiet rest at night also.
It was held that the running of the mill amounted to a private nuisance which should not be permitted.

In Palmar v. Loder, (1962) CLY 2233: In this case, perpetual injunction was granted to restrain defendant
from interfering with plaintiff’s enjoyment of her flat by shouting, banging, laughing, ringing doorbells or
otherwise behaving so as to cause a nuisance by noise to her.

In Radhey Shiam v. Gur Prasad Sharma, AIR 1978 All 86: It was held by the Allahabad High Court held
that a permanent injunction may be issued against the defendant if in a noisy locality there is substantial
addition to the noise by introducing flour mill materially affecting the physical comfort of the plaintiff.

DEFENCES TO NUISANCE

It is a valid defence to an action for nuisance that the said nuisance is under the terms of a grant.

· Prescription: A title acquired by use and time, and allowed by Law; as when a man claims anything,
because he, his ancestors, or they whose estate he hath, have had possession for the period prescribed
by law. This is there in Section 26, Limitation Act & Section 15 Easements Act.

Page 38 of 80

Compiled by Rahul Kumar Singh

Three things are necessary to establish a right by prescription

1. Use and occupation or enjoyment

2. The identity of the thing enjoyed

3. That it should be adverse to the rights of some other person.

A special defence available in the case of nuisance is prescription if it has been peaceable and openly
enjoyed as an easement and as of right without interruption and for twenty years. After a nuisance has
been continuously in existence for twenty years prescriptive right to continue it is acquired as an
easement appurtenant to the land on which it exists. On the expiration of this period the nuisance
becomes legalised ab initio, as if it had been authorised in its commencement by a grant from the owner
of servient land. The time runs, not from the day when the cause of the nuisance began but from the
day when the nuisance began.

The easement can be acquired only against specific property, not against the entire world.

In Elliotson v. Feetham (1835) 2 Bing NC 134, it was held that a prescriptive right to the exercise of a
noisome trade on a particular spot may be established by showing twenty years’ user by the defendant

In Goldsmid v. Turubridge Wells Improvement Commissioners (1865) LR 1 Eq 161, it was held that no
prescriptive right could be obtained to discharge sewage into a stream passing through plaintiff’s land
and feeding a lake therein perceptibly increasing quantity.

In Mohini Mohan v. Kashinath Roy, (1909) 13 CWN 1002, it was held that no right to hold kirtan upon
another’s land can be acquired as an easement. Such a right may be acquired by custom.

In Sturges v. Bridgman (1879) 11 Ch.D. 852 A had used a certain heavy machinery for his business, for
more than 20 years. B, a physician neighbour, constructed a consulting room adjoining A’s house only
shortly before the present action and then found himself seriously inconvenienced by the noise of A’s
machinery.

B brought an action against A for abatement of the nuisance. It was held that B must succeed. A cannot
plead prescription since time runs not from the date when the cause of the nuisance began but from the
day when the nuisance began.

· Statutory Authority: Where a statute has authorised the doing of a particular act or the use of land in a
particular way, all remedies whether by way of indictment or action, are taken away; provided that
every reasonable precaution consistent with the exercise of the statutory powers has been taken.
Statutory authority may be either absolute or conditional.

In case of absolute authority, the statute allows the act notwithstanding the fact that it must necessarily
cause a nuisance or any other form of injury.

Page 39 of 80

Compiled by Rahul Kumar Singh

In case of conditional authority the State allows the act to be done only if it can be without causing
nuisance or any other form of injury, and thus it calls for the exercise of due care and caution and due
regard for private rights.

In Vaughan v. Taff Vale Rly (1860) 5 H.N. 679, The defendants who had authority by Statute to
locomotive engines on their railway, were held not liable for a fire caused by the escape of sparks.

Q. Define and discuss damages as a remedy which the plaintiff can avail of after the tort is committed
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 entitled to be restored to the position that he would have
been in, had the tort not been committed, insofar as this can be done by the payment of money
(Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39).

TYPES OF DAMAGES

Nominal and contemptuous

Nominal damages will be awarded where the claimant proves that the defendant has committed a tort
but the claimant has suffered no loss.

Contemptuous damages consist of the award of a derisory sum, usually the smallest coin of the realm
of. They are awarded when the court considers that the claimant's action, although technically
successful, was without merit and should not have been brought. The claimant may then be at risk on
costs, which are normally awarded to the successful party.

General and special

General damage is the damage that is presumed to flow from torts which are actionable per se, and so
need not be specifically pleaded (e.g., loss of reputation in a libel action). Special damage refers to the
damage that the claimant must plead and prove as part of his cause of action in torts where damage is
the gist of the action (e.g., negligence, nuisance, slander).

There is a second and much more commonly used meaning of the distinction between general damages
and special damages. In practice, losses that are capable of being calculated with reasonable accuracy
are pleaded as 'special damages'. Inexact or unliquidated losses (although they are not presumed and
therefore must be pleaded) are compensated by an award of 'general damages'. For example, in a
personal injuries action, accrued expenses such as damaged clothing, medical expenses and loss of
earnings to the date of trial are special damages. Pain and suffering and loss of amenity (and prospective
loss of earnings) are treated as general damages.

Aggravated and exemplary

Page 40 of 80

Compiled by Rahul Kumar Singh

The court may take into account the manner in which the tort was committed in assessing damages. If it
was such as to injure the claimant's proper feelings of dignity and pride then aggravated damages may
be awarded. Aggravated damages are solely compensatory, but they are higher than would normally be
the case to reflect the greater injury to the claimant.

Aggravated damages should be distinguished from exemplary the damages, which are punitive in
nature. It has been said that the distinction between aggravated and exemplary damages is that
aggravated damages are awarded for conduct that shocks the claimant (and therefore constitutes a real
loss), and exemplary damages are awarded for conduct the shocks the court. In Rookes v Barnard
[1964] AC 1129, the House of Lords held that, except where specifically authorised by statute,
exemplary damages should be awarded only in two categories of case:

(a) Oppressive, arbitrary or unconstitutional action by servants of the government.

(b) Where the defendant's conduct has been calculated by him to make a profit for himself which may
well exceed the compensation payable.

A SINGLE ACTION AND THE LUMP SUM

Single Action: A claimant can bring only one action in respect of a single wrong. He cannot maintain a
second action based on the same facts merely because the damage turns out to be more extensive than
was anticipated (Fetter v Beale (1701) 1 Ld Raym 339, 692). However, there are some exceptions to this.

Where a single wrongful action violates two distinct rights the claimant can bring separate actions in
respect of each right. Although the rule in Henderson v Henderson (1843) 3 Hare 100 requires the parties
to bring the whole case before the court so that all aspects of the case may be finally decided (subject to
any appeal) once and for all, in Talbot v Berkshire CC [1994] QB 290 the Court of Appeal gave three
examples of special circumstances where the rule would not apply:

(a) where the claimant was unaware of the existence of the claim;

(b) where an agreement was made between the parties holding the action in abeyance; and

(c) where the claimant had not brought his case earlier in reliance on a representation made by the
defendant.

A second exception to the rule is where there is a continuing injury, such as a continuing nuisance or
trespass to land. In trespass, being actionable per se, a fresh cause of action arises from day to day, and
in nuisance a fresh cause of action arises whenever further damage occurs (Darley Main Colliery v
Mitchell (1886) 11 App Cas 127).

The final exception is that where a single wrong produces successive and distinct damage, then in torts
which are actionable only on proof of damage (as opposed to torts actionable per se), a separate and
distinct cause of action will accrue (Mount Albert BC v Johnson [1979] 2 NZLR 234).

Page 41 of 80

Compiled by Rahul Kumar Singh

Lump sum: Damages are assessed once and for all must be awarded in the form of a lump sum. This
applies both to accrued and prospective losses. The court has no power to require the defendant to
make periodical payments (Burke v Tower Hamlets Health Authority [1989]

An exception of very limited application was accepted in Mullholand v Mitchell [1971] AC 666. Where
there is evidence of a change of circumstances after the trial but before an appeal, the Court of Appeal
will admit the new evidence. New evidence was also admitted by the House of Lords in Lim Poh Choo v
Camden AHA [1980] AC 174 to 'mitigate the injustices of a lump sum system'.

INTEREST ON DAMAGES

The court has a discretion to award simple interest on all or any part of the damages, and in the case of
damages for personal injuries or death exceeding £200 the court must award interest unless there are
special reasons for not doing so. Where the claimant has delayed bringing a claim to trial the court has a
discretion to disallow all part of the claim for pre-trial interest.

Q. Differentiate between (i) Absolute privileges and Qualified privileges. (ii) False Imprisonment and
malicious prosecution. (iii) Nuisance and Trespass

Difference between absolute and qualified privilege:

Absolute Privilege

1. The defendant can avail the defence of absolute privilege, even though he made the false and
defamatory statement deliberately and with malice.

2. Absolute privilege can be used as a defence in the Parliamentary, judicial, naval, military or State
proceedings.

3. Certain occasions and their nature are prefixed, enabling to grant the absolute privilege. Once the
nature and occasions are decided, every statement made in such occasion and nature, is protected
under absolute privilege.

4. “Salus populi est suprema” is considered more in granting the absolute privilege.

5. A speech of a Member of Parliament in the Parliamentary proceedings is protected by absolute

privilege.

Qualified Privilege

Page 42 of 80

Compiled by Rahul Kumar Singh

1. The defendant can avail the defence of qualified privilege, even though he made the false and
defamatory statement deliberately, but without malice.

2. Qualified privilege can be used as a defence in the communications made (a) in the course of legal,
social or moral duty, (b) for self- protection, (c) for protection of common interest, (d) for public good;
(2) reports of Parliamentary and judicial proceedings; and (3) proceedings at public meetings.

3. In qualified privilege, no such occasion or nature are pre-fixed. In this the defendant does not prove
privilege until he has shown how that occasion was used.

4. “Salus populi est suprema” is considered in relation to personal relations, duties, interests, etc., while
allowing qualified privilege.

5. A speech given by a Member of Parliament in a public meeting is not covered under absolute
privilege. However, if the Member of Parliament can prove the nature and occasion; he can avail the
defence of qualified privilege.

Differences between malicious prosecution and False imprisonment:

1. Malicious prosecution is wrongfully setting the criminal law in motion but false imprisonment is
wrongfully restraining the personal liberty of the plaintiff.

2. The action of false imprisonment owes its origin to the writ of trespass whereas the history of
malicious prosecution may be traced back to the old writ of conspiracy.

3. The purpose of the tort of false imprisonment is to protect the liberty of a person. The purpose
of the law of malicious prosecution is to check the abuse of legal process.

4. To constitute false imprisonment restraint on the freedom of movement is essential but

restraint on personal liberty is not an essential element of the tort of malicious prosecution.

5. In malicious prosecution must be before a judicial authority but in false imprisonment restriction
on movement is by the defendant or any other person for whose acts he is responsible.

6. In case of malicious prosecution damage must be proved by the plaintiff but in false
imprisonment damage is not an essential element.

7. In malicious prosecution malice is essential element and must be established by the plaintiff but
malice is not essential in an action for false imprisonment.

DISTNCTION BETWEEN NUISANCE AND TRESSPASS

Page 43 of 80

Compiled by Rahul Kumar Singh

 Trespass is direct physical interference with the plaintiff’s possession of land through some material or
tangible object while nuisance is an injury to some right accessory to possession but no possession itself.

E.g. a right of way or light is an incorporeal right over property not amounting to possession of it, and
hence disturbance of it is a nuisance and not trespass.

· Trespass is actionable per se, while nuisance is actionable only on proof of actual damage. It means
trespass and nuisance are mutually exclusive.

Simple entry on another’s property without causing him any other injury would be trespass. In nuisance
injury to the property of another or interference with his personal comfort or enjoyment of property is
necessary.

They may overlap when the injury is to possessory as well as to some right necessary to possession. E.g.
trespass of cattle discharge of noxious matter into a stream and ultimately on another’s land.

· To cause a material and tangible loss to an object or to enter another person’s land is trespass and not
nuisance; but where the thing is not material and tangible or where though material and tangible, it is
not direct act of the defendant but merely consequential on his act, the injury is not trespass but merely
a nuisance actionable on proof of actual damage.

If interference is direct, the wrong is trespass, if it is consequential, it amounts to nuisance.

E.g. Planting a tree on another’s land is trespass, whereas when one plants a tree over his own land and
the roots or branches project into or over the land of another person, act is nuisance.

Q. Write a note on (i) Act of God or Vis Major (ii) Trespass to land (iii) Battery (iv) Assault.
ACT OF GOD(VIS MAJOR)

Act of God is a defence used in cases of torts when an event over which the defendant has no control
over occurs and the damage is caused by the forces of nature. In such cases the defendant will not be
liable in tort law for such inadvertent damage. Act of God or Vis Major or Force Majeure may be defined
as circumstances which no human foresight can provide against any of which human prudence is not
bound to recognize the possibility, and which when they do occur, therefore are calamities that do not
involve the obligation of paying for the consequences that result from them. Black’s Law Dictionary
defines an act of God as “An act occasioned exclusively by violence of nature without the interference of
any human agency.” A natural necessity proceeding from physical causes alone without the intervention
of man. It is an accident which could not have been occasioned by human agency but proceeded from
physical causes alone.

Thus, the essential conditions of this defence are:-

Page 44 of 80

Compiled by Rahul Kumar Singh

1. The event causing damages was the result of natural forces without any intervention from human
agency, and

2. The event was such that the possibility of such an event could not be recognized by using
reasonable care and foresight.

Whether a particular event amounts to an Act of God is question of fact. Today the scope of this defence
is very limited because with the increase in knowledge the foresight also increases and it is expected
that the possibility of the event could have been visualized. Whether a particular circumstance or
occurrence amounts to an act of God is a question of fact in each case and the criterion for deciding it "is
no human foresight and prudence could reasonably recognise the possibility of such an event."

In the case of Nichols v. Marshland, the defendant has a number of artificial lakes on his land.
Unprecedented rain such as had never been witnessed in living memory caused the banks of the lakes to
burst and the escaping water carried away four bridges belonging to the plaintiff. It was held that the
plaintiff’s bridges were swept by act of God and the defendant was not liable.

In Saraswati Parabhai Vs Grid Corporation of Orissa and Others, where an electric pole was uprooted
and fell down with live wire which caused death of a person. Orissa High Court rejecting the defence of
Act of God held that it was the responsibility of the Grid Corporation authorities to provide protection in
such situation of storm and rain.

In another case Ryde vs. Bushnell (1967), Sir Charles Newbold observed, “Nothing can be said to be an
act of God unless it is an occurrence due exclusively to natural causes of so extraordinary nature that it
could not reasonably have been foreseen and the result avoided”.

(ii) TRESPASS TO LAND

DEFINITION: Trespass to land occurs where a person directly enters upon another's land without
permission, or remains upon the land, or places or projects any object upon the land.

This tort is actionable per se without the need to prove damage.

By contrast, nuisance is an indirect interference with another's use and enjoyment of land, and normally
requires proof of damage to be actionable.

THE WAYS IN WHICH TRESPASS MAY OCCUR

1. Entering upon land: Walking onto land without permission, or refusing to leave when permission has
been withdrawn, or throwing objects onto land are all example of trespass to land. Basely v Clarkson
(1681) 3 Lev 37,

Page 45 of 80

Compiled by Rahul Kumar Singh

2. Trespass to the airspace: Trespass to airspace above the land can be committed. In Kelsen v Imperial
Tobacco Co [1957] 2 QB 334, D committed trespass by allowing an advertising board to project eight
inches into P's property at ground level and another above ground level.

3. Trespass to the ground beneath the surface: In Bulli Coal Mining Co v Osborne [1899] AC 351, the Ds
mined from their land through to the P's land. This was held to be trespass to the subsoil.

POSSESSION OF LAND: This tort developed to protect a person's possession of land, and so only a
person who has exclusive possession of land may sue.

Thus, a landlord of leased premises does not have exclusive possession, nor does a lodger or a licensee.
However, a tenant or subtenant does.

CONTINUING TRESPASS: A continuing trespass is a failure to remove an object (or the defendant in
person) unlawfully placed on land. It will lead to a new cause of action each day for as long as it lasts
(Holmes v Wilson and others (1839) 10 A&E 503; Konskier v Goodman Ltd [1928] 1 KB 421).

For example, in Holmes v Wilson and others (1839) the Ds built supports for a road on P's land. The Ds
paid damages for the trespass, but were held liable again in a further action for failing to remove the
buttresses.

MISTAKEN OR NEGLIGENT ENTRY: Trespass to land is an intentional tort. However, intention for the act
is required, not an intention to trespass. Consequently, deliberate entry is required and lack of
knowledge as to trespass will not be a defence (Conway v George Wimpey & Co [1951] 2 KB 266, 273).

Mistaken entry (Basely v Clarkson (1681) 3 Lev 37): D owned land adjoining P's, and in mowing his own
land he involuntarily and by mistake mowed down some grass on the land of P. P had judgment for 2s.

Involuntary entry (Smith v Stone (1647) Sty 65): An involuntary trespass is not actionable: Smith v Stone
(1647) Sty 65, where D was carried onto the land of P by force and violence of others; there was
trespass by the people who carried D onto the land, and not by D.

Negligent entry ( League Against Cruel Sports v Scott.): A negligent entry is possible and was considered
in League Against Cruel Sports v Scott. The Ps owned 23 unfenced areas of land. Staghounds used to
enter the land in pursuit of deer. The Ps sued the joint Masters of the Hounds for damages and sought
an injunction against further trespasses. Park J issued an injunction in respect of one area restraining the
defendants themselves, their servants or agents, or mounted followers, from causing or permitting
hounds to enter or cross the property. Damages for six trespasses were awarded. The judge said:

"Where a master of staghounds takes out a pack of hounds and deliberately sets them in pursuit of a
stag or hind knowing that there is a real risk that in the pursuit hounds may enter or cross prohibited
land, the master will be liable for trespass if he intended to cause the hounds to enter such land or if by
his failure to exercise proper control over them he causes them to enter such land."

Page 46 of 80

Compiled by Rahul Kumar Singh

DEFENCES

Licence: A licence is a permission to enter land and may be express, implied or contractual. A dictionary
definition is as follows:

"In land law, a licence is given by X to Y when X, the occupier of land, gives Y permission to perform an
act which, in other circumstances, would be considered a trespass, e.g., where X allows Y to reside in X's
house as a lodger. A bare licence is merely gratuitous permission. A licence may be coupled with an
interest, as where X sells standing timber to Y on condition that Y is to sever the timber; in this case the
sale implies the grant of a licence to Y to enter X's land. For contractual licence see Horrocks v Forray
[1976] 1 WLR 230. See Street v Mountford [1985] AC 809."

If a licensee exceeds their licence, or remains on the land after it has expired or been revoked, the
licensee becomes a trespasser (Wood v Leadbitter (1845) 13 M&W 838; Hillen v ICI (Alkali) Ltd [1936]
AC 65). Such a person is allowed a reasonable time in which to leave (Robson v Hallett [1967] 2 QB 939;
Minister of Health v Bellotti [1944] KB 298).

There is also the defence of estoppel by acquiescence, that is, consent which is expressed or implied
from conduct, eg, inactivity or silence (Jones v Stones [1999] 1 WLR 1739 - mere delay in complaining is
not acquiescence).

(iii) ASSAULT and BATTERY

Assault: Definition

The definitions for assault vary from state-to-state, but assault is often defined as an attempt to injure
to someone else, and in some circumstances can include threats or threatening behavior against others.
One common definition would be an intentional attempt, using violence or force, to injure or harm
another person. Another straightforward way that assault is sometimes defined is as an attempted
battery. Indeed, generally the main distinction between an assault and a battery is that no contact is
necessary for an assault, whereas an offensive or illegal contact must occur for a battery.

Assault: Act Requirement

Even though contact is not generally necessary for an assault offense, a conviction for assault still
requires a criminal "act". The types of acts that fall into the category of assaults can vary widely, but
typically an assault requires an overt or direct act that would put the reasonable person in fear for their

Page 47 of 80

Compiled by Rahul Kumar Singh

safety. Spoken words alone will not be enough of an act to constitute an assault unless the offender
backs them up with an act or actions that put the victim in reasonable fear of imminent harm.

Assault: Intent Requirement

In order commit an assault an individual need only have "general intent". What this means is that
although someone can't accidentally assault another person, it is enough to show that an offender
intended the actions which make up an assault. So, if an individual acts in a way that's considered
dangerous to other people that can be enough to support assault charges, even if they didn't intend a
particular harm to a particular individual. Moreover, an intent to scare or frighten another person can be
enough to establish assault charges, as well.

Battery: Definition

Although the statutes defining battery will vary by jurisdiction, a typical definition for battery is the
intentional offensive or harmful touching of another person without their consent. Under this general
definition, a battery offense requires all of the following:

 intentional touching;

 the touching must be harmful or offensive;

 no consent from the victim.

Battery: Intent Requirement

It may come as some surprise that a battery generally does not require any intent to harm the victim
(although such intent often exists in battery cases). Instead, a person need only have an intent to
contact or cause contact with an individual. Additionally if someone acts in a criminally reckless or
negligent manner that results in such contact, it may constitute an assault. As a result, accidentally
bumping into someone, offensive as the "victim" might consider it to be, would not constitute a battery.

Battery: Act Requirement

The criminal act required for battery boils down to an offensive or harmful contact. This can range
anywhere from the obvious battery where a physical attack such as a punch or kick is involved, to even
minimal contact in some cases. Generally, a victim doesn't need to be injured or harmed for a battery to
have occurred, so long as an offensive contact is involved. In a classic example, spitting on an individual
doesn't physically injure them, but it nonetheless can constitute offensive contact sufficient for a
battery. Whether a particular contact is considered offensive is usually evaluated from the perspective
of the "ordinary person."

Page 48 of 80

Compiled by Rahul Kumar Singh

Some jurisdictions have combined assault and battery into a single offense. Because the two offenses
are so closely related and often occur together, this should probably come as no surprise. However, the
basic concepts underlying the offense remain the same.

CONSUMER PROTECTION ACT 1986

Q. Enumerate the purpose of enactment of the Consumer Protection Act.

The Consumer Protection Act 1986 was enacted to provide for better protection of the interests of
consumers and for that purpose to make provision for the establishment of Consumers Councils and
other authorities for the settlement of consumers’ disputes and for matters connected therewith
(Preamble).
Page 49 of 80

Compiled by Rahul Kumar Singh

The Act Inter alia, seeks to promote and protect the rights of consumers such as —

(1) right to be protected against marketing of goods which are hazardous to life and property;

(2) right to be informed about the quality, quantity, potency, purity, standard and price of goods to
protect the consumer against unfair trade practices;

(3) right to be assured, wherever possible, access to variety of goods at competitive prices;

(4) right to be heard and to assured that customers’ interests will receive due consideration at
appropriate forums.

(5) Right to seek redressal against unfair practices or unscrupulous exploitation of consumers; and
(6) Right to consumer education

The objects are sought to be promoted and protected by the Consumer Protection Councils to be
established at the Central and State levels.

The Act applies to all goods and services, except if otherwise provided by the Central Government by
Notification. To provide speedy and simple redressal of consumer disputes, a quasi judicial machinery is
set up at the District, State and Central levels. The three tier system of quasi judicial bodies will observe
the principle of natural justice and are empowered to give relief of a specific nature and to award,
wherever appropriate, compensation to consumers. Penalties for non-compliance of the orders given by
the quasi judicial bodies have also been provided.

Thus the Consumer Protection Act is to serve the interests of the consumers. Consumer education and
redressal of consumers’ grievances are the two aspects of the Act. It makes good the loss a consumer
suffers and increases the feeling of responsibility of the manufacturer, trader, supplier or businessman.

The provisions of the Act have to be construed in favor of the consumer to achieve the purpose of
enactment as it is social benefit oriented legislation. The primary duty of the Court while construing the
provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to
the language of the provisions and not contrary to attempted objective of the enactment.

Extent of Consumer Protection:

While other legislations may be either punitive or preventive, the Consumer Protection Act
compensates the consumer. The provisions of the Act are in addition to and not in derogation of the
provisions of any law at the time being in force (Sec 3). In Maine Container Services South Pvt Ltd v Go
Garments 1998 (3) SCC 247 it has been held that the Contract Act applies to all litigants before the
Commissioner under the Consumers Protection Act. Passengers traveling in train suffering injuries and
loss of Jewelry as a result of assault by unruly crowd are eligible for filing of complaint before State
Commission is maintainable notwithstanding the provisions of sections 100 and 103 of Railways Act,
1889. The Consumer Protection Act therefore gives the consumer an additional remedy besides those
Page 50 of 80

Compiled by Rahul Kumar Singh

which may be available under other existing laws. Existence of an arbitration clause in the agreement is
no bar to the entertainment of complaint by the Redressal Agency as the remedy under the Act is in
addition to the provisions of any other law. However, the Consumer Forums under the Act have not
taken over the jurisdiction of civil Courts. If the dispute between the parties is pending in Civil Court no
Consumer Forum will adjudicate the dispute. Similarly if evidence be laid by the parties to the dispute is
voluminous or complicated the parties will be referred to the appropriate Civil Court.

Consumers Protection Act, thus enshrines the rights of a consumer to be informed about the quality,
quantity, potency, price etc., of the goods to be protected against unfair trade practices, to seek
inexpensive and expeditious redressal of grievances before the Consumer Forums. Consumer Protection
Act is a benevolent piece of legislation to protect a large body of consumers from exploitation.

Q. Discuss the compositions, powers and functions of District forum.

District Forum [Section 10]

COMPOSITION - District Forum consist of one president and two other members (one of whom is to be
a woman).

The president of the Forum is a person who is, or has been qualified to be a District Judge, and other
members are persons of ability, integrity and standing, and have adequate knowledge or experience of,
or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy,
industry, public affairs or administration.

The object underlying the inclusion of non-judicial members appears to be to impart a balance to the
functioning of the District Forum by ensuring that the members are able to understand the economic
and social impact of the matters. Further inclusion of one female members ensures that the matters are
viewed from a woman’s angle also.

APPOINTING AUTHORITY - Every appointment of the president and members of the District Forum is
made by the State Government on the recommendation of a selection committee consisting of the
following, namely—

(i) the President of the State Commission — Chairman.

(ii) Secretary, Law Department of the State — Member.

(iii) Secretary in charge of the Department dealing with consumer affairs in the State —
Member.

Page 51 of 80

Compiled by Rahul Kumar Singh

TERM OF OFFICE [SECTION 10(2)] - Every member of the District Forum is to hold office for a term of five
years or up to the age of 65 years, whichever is earlier. However, he/she shall not be eligible for re-
appointment.

In terms of proviso to section 10(2), a member may resign his office in writing under his hand addressed
to the State Government and on such resignation being accepted, his office shall become vacant and
may be filled by the appointment of a person possessing the requisite qualifications in relation to the
category of the member who has resigned.

JURISDICTION

a. PECUNIARY JURISDICTION - District Forum entertains the cases where the value of claim is upto Rs. 5
Lakhs. Where a claim exceed this limit, the matter is beyond the jurisdiction of the Forum.

This limit of Rs. 5 lakhs is as to the value of claim filed by the party. Value of goods or services in question
or value of relief granted is not relevant for this purpose.

Example : A purchased machinery for Rs. 7 lakhs. After working for some time, the machine broke down
due to some manufacturing defect. A filed a claim for compensation worth Rs. 4.5 lakhs. Since the value
of claim is less than Rs. 5 Lakhs, it will fall under the jurisdiction of District Forum.

The complainant has a right to reduce value of his claim in order to bring his claim within the jurisdiction
of a junior forum.

Example : A filed a complaint with a District Forum claiming Rs. 6,00,000 as against a supplier of
machinery. The complaint was rejected on the ground that it was beyond the jurisdiction of the District
Forum. A revised his claim to

Rs. 4,99,999 and filed the plaint again with the same District Forum. The plaint was accepted and tried.

b. TERRITORIAL JURISDICTION - Every District Forum has definite geographical limits within which it can
exercise its jurisdiction. A case is supposed to fall within such territory when at the time of the
institution of the complaint—

(a) The party against whom the claim is made actually and voluntarily resides or carries on
business or has a branch office or personally works for gain in that area, or

(b) Where there are more than one opposite party, each such party actually and voluntarily
resides or carries on business or has a branch office or

c. APPELLATE JURISDICTION - District Forum is the lowest rung of the ladder of the consumer courts.
Thus this is not an appellate court, i.e., no appeal lies in this court.

personally works for gain in that area, or

Page 52 of 80

Compiled by Rahul Kumar Singh

 (c) Where there are more than one opposite party, and any such party actually and
voluntarily resides or carries on business or has a branch office or personally works for gain in that area,
provided the other parties not so residing or working agrees, or the District Forum gives permission in
this regard,

(d) The cause of action, wholly or in part, arises in that area.

Procedure to be followed by the District Forum [Section 13] - The following procedure is equally
applicable to the District Forum, State Commission with required modifications, and National
Commission with additional procedures required by the rules.

WHERE LABORATORY TEST IS REQUIRED TO DETERMINE THE DEFECT IN GOODS - A consumer is

supposed to file as many copies of the complaint as there are number of judges, with all essential
information, supporting papers like correspondence, and specifying the compensation demanded.

On receipt of such complaint—

(a) The District Forum should refer a copy of the complaint to the opposite party directing
him to give his version of the case within a period of thirty days which can be extended to forty five
days.

Where the opposite party on receipt of a complaint referred to him denies or disputes
the allegations contained in the complaint, or omits or fails to take any action to represent his case
within the time given by the District Forum, the District Forum would take the following steps to settle
the dispute

(b) The District Forum may require the complainant to deposit specified fees for payment
to the appropriate laboratory for carrying out the necessary analysis or test in relation to the goods in
question.

(c) The District Forum will obtain a sample of the goods, seal it, authenticate it and refer
the sample so sealed to the *appropriate laboratory for an analysis or test, whichever may be necessary,
with a view to finding out whether such goods suffer from any defect.

The District Forum will remit the fees to the appropriate laboratory to enable it to carry
out required analysis or test.

The laboratories supposed to report its findings to the District Forum within a period of
fifty-five days. This period is extendible by the District Forum.

(d) Upon receiving laboratory’s report, its copy will be forwarded by the District Forum to
the opposite party along with its own remarks.

Page 53 of 80

Compiled by Rahul Kumar Singh

 (e) In the event of any party disputing the correctness of the findings, or the methods of
analysis or test adopted by the appropriate laboratory, the District Forum shall require the objecting
party to submit his objections in writing.

(f) The District Forum will give an opportunity of hearing to the objecting party.

(g) The District Forum shall issue appropriate order after hearing the parties.

WHERE NO LABORATORY TEST IS REQUIRED TO DETERMINE THE DEFECT IN GOODS OR THE COMPLAINT
RELATES TO SERVICES

(a) On receiving the complaint, the District Forum should refer a copy of the complaint to
the opposite party directing him to give his version of the case within a period of thirty days which can
be extended to forty five days.

(b) The opposite party on receipt of a complaint referred to him may—

(i) admit the complaint

Note : Although this procedure may be followed by all - the District Forum, State Commission, and
National Commission, we have used the name of ‘District Forum’ while describing the procedure.

(ii) deny or dispute the allegations contained in the complaint, or

(iii) omits or fails to respond within the time given by the District Forum.

(c) Where the opposite party admits the allegation, the District Forum should decide the
matter on the basis of the merits of the case and the documents before it.

Where the opposite party denies or disputes the allegations made in the complaint, the
District Forum will proceed to settle the dispute on the basis of evidence brought to its notice by both
the parties.

Where the opposite party omits or fails to respond within the time given by the Forum,
the District Forum will proceed to settle the dispute on the basis of evidence brought to its notice by the
complainant.

(d) The District Forum shall issue an appropriate order after hearing the parties and taking
into account available evidence.

Q. Discuss the composition and jurisdiction of State Consumer Forum. Is there any administrative
control of this forum Commission over District Forums

Page 54 of 80

Compiled by Rahul Kumar Singh

State Commission [Section 16] - After the District Forum, State Commission is next in the hierarchy of
Consumer Rederessal Forums under the Act.

COMPOSITION - State Commission consists of a president and two members one of whom is to be a
woman.

President is a person who is or has been a Judge of a High Court, and the members, are persons of
ability, integrity and standing and have adequate knowledge or experience of, or have shown capacity in
dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or
administration.

APPOINTING AUTHORITY - President of a State Commission is appointed by the State Government after
consultation with the Chief Justice of the High Court.

Other members of the Commission are made by the State Government on the recommendation of a
selection committee consisting of the following, namely—

(i) President of the State Commission — Chairman.

(ii) Secretary of the Law Department of the State — Member.

(iii) Secretary, in charge of Department dealing with consumer affairs in the State —
Member.

TERM OF OFFICE [SECTION 16(3)] - Every member of the State Commission shall hold office for five years
or up to the age of 67 years whichever is earlier and he shall not be eligible for re-appointment.

JURISDICTION

PECUNIARY JURISDICTION - State Commission entertains the cases where the value of claim exceeds Rs.
5 lakhs. But where value of a claim exceed Rs. 20 lakhs, the matter is beyond the jurisdiction of the
Commission.

Example : A of Delhi bought a house from housing board for Rs. 4 lakhs. Due to defect in the house, its
wall fell down on the daughter of A and she dies. A sue the Housing Board claiming Rs. 15 lakhs as
compensation. This matter will lie with the State Commission of Delhi.

Note : That although the value of house is less than 5 lakhs, the decisive factor regarding jurisdiction is
the value of claim

TERRITORIAL JURISDICTION - The Consumer Protection Act does not specifically provides for the
territorial jurisdiction of the State Commission. Thus it is governed by the general principle of the law
which are contained in section 20 of the Civil Procedure Code.

Page 55 of 80

Compiled by Rahul Kumar Singh

Broadly these principles are on the similar lines on which the territorial jurisdiction of District Forum is
based. Thus a suit can be instituted in the State Commission within whose local limits—

(a) the party against whom the claim is made actually and voluntarily resides or carries on
business or personally works for gain, or

(b) where there are more than one opposite party, each such party actually and voluntarily
resides or carries on business or personally works for gain, or

(c) where there are more than one opposite party, and any such party actually and
voluntarily resides or carries on business or has a branch office or personally works for gain, provided
the other parties not so residing or working agrees, or the State Commission gives permission in this
regard, or

(d) the cause of action, wholly or in part, arises.

APPELLATE JURISDICTION [SECTION 17(a)(ii)] - State Commission has power to adjudicate upon the
appeals made against the order of the District Forums. Any person aggrieved by an order made by the
District Forum may prefer an appeal against such order within 30 days from the date of order. However,
the State Commission may entertain an appeal after the expiry of 30 days if it is satisfied that there was
sufficient cause for delay.

Note : 30 days are counted not from the date of order but from the date when the order is
communicated to the appellant.

REVISIONAL JURISDICTION [SECTION 17(b)] - State Commission may call

for the records and pass appropriate orders in any consumer dispute which is pending before or has
been decided by any District Forum within the State, where State Commission is of the view that the
District Forum—

- has exercised jurisdiction which it was not entitled to, or

- has failed to exercise such jurisdiction which it was entitled to, or

- has exercised its jurisdiction illegally or with material irregularity.

Such revisional jurisdiction may be exercised by the Commission on its own or on the application of a
party.

Appeals against orders - -

An appeal can be made with the State Commission against the order of the District Forum within
30 days of the order which is extendable for further 15 days. [Section 15]

Page 56 of 80

Compiled by Rahul Kumar Singh

Q. How the orders made by the National Commission is enforced? In what manner National
Commission have administrative control over state commission? Is there any penalty for non-
compliance of those orders?

National Commission [Section 20] - The National Commission is the top most layer in the three level
hierarchy of the Consumer Forums.

COMPOSITION - The National Commission consists of a president, and four other members (one of
whom is to be a woman).

The president should be the one who is or has been a Judge of the Supreme Court, and the members
should be the persons of ability, integrity and standing and have adequate knowledge or experience of,
or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy,
industry, public affairs or administration.

APPOINTING AUTHORITY - The President is appointed by the Central Government after consultation
with the Chief Justice of India;

The appointment of other members of the Commission is made by the Central Government on the
recommendation of a selection committee.

This selection committee consists of, namely:—

(a) a person who is a Judge of the Supreme Court, to be nominated by the Chief Justice of
India—Chairman.

(b) the Secretary in the Department of Legal Affairs in the Government of India—Member.

(c)Secretary of the Department dealing with consumer affairs in the Government of India — Member.

Note that before appointment, the president and member(s) of the National Commission have to take
an undertaking that he does not and will not have any such financial or other interest as is likely to
affect prejudicially his functions as such member.

TERM OF OFFICE [SECTION 20(3)] - Every member of the National Commission is to hold office for a
term of five years or up to the age of seventy years, whichever is earlier and is not eligible for re-
appointment.

JURISDICTION

PECUNIARY JURISDICTION - Since National Commission is the highest level of Consumer Forums, it may
entertain all the matters where the value of claim exceeds Rs. 20 lakhs.

Page 57 of 80

Compiled by Rahul Kumar Singh

TERRITORIAL JURISDICTION - The territorial jurisdiction of the National Commission is whole of India
except the State of Jammu & Kashmir.

However, the Consumer Protection Act is applicable only if the cause of action arise in India. If the cause
of action arises out of India, National Commission has no jurisdiction over the matter as it cannot be
tried in India under the Act.

Example: The complainant alleged that they were not properly treated by the Egyptian Airlines
authorities at Barcelona. It was held that the cause of action arose at Barcelona, so the complaint under
the Act is not maintainable in India - Gulab Hotchand Bhagchandaney v. Egyptian Airlines III 1994 CPJ
172 (NC).

APPELLATE JURISDICTION - The National Commission has jurisdiction to entertain appeals against the
order of any State Commission. The appeal may be made within 30 days from the date of the order of
the State Commission. However the National Commission may entertain an appeal filed after the expiry
of 30 days if it is satisfied that there was sufficient cause for not filing the appeal within the given time.

REVISIONAL JURISDICTION [SECTION 21(b)] - National Commission can call for the records and pass the
appropriate orders in any consumer dispute which is pending before or has been decided by any State
Commission it is of the view that the State Commission—

- has exercised jurisdiction which it was not entitled to, or

- has failed to exercise such jurisdiction which it was entitled to, or

- has exercised its jurisdiction illegally or with material irregularity.

Note that the revisional jurisdiction is available to the National Commission only in the cases where
there has been wrongful, illegal, and improper exercise of jurisdiction or failure to exercise jurisdiction
on the part of State Commission.

Example: K made an appeal to the National Commission against the order of the State Commission
whereby the State Commission had made an order against him although he was not a made a party to
the dispute by the complainant. The National Commission observed that the order of the State
Commission was vitiated by illegal exercise of jurisdiction resulting immaterial irregularity and
accordingly, the same was liable to be set aside - Kinetic Engineering Ltd. v. Samasi Saunand [1993] II
CPR 409 (NC).

Procedure to be followed by the National Commission [Section 22] - Section 22 of the Act provides that
the National Commission shall follow such procedure as prescribed by the Central Government. The
Consumer Protection Rules, 1987 framed by the Central Government lay down the procedure which is
as follows :

Page 58 of 80

Compiled by Rahul Kumar Singh

(1) A complaint containing the following particulars shall be presented by the complainant in person or
by his agent to the National Commission or be sent by registered post, addressed to the National
Commission :

(a) the name, description and the address of the complainant;

(b) the name, description and address of the opposite party or parties, as the case may be,
so far as they can be ascertained;

(c) the facts relating to the complaint and when and where it arose;

(d) documents in support of the allegations contained in the complaint;

(e) the relief which the complainant claims.

(2) The National Commission shall, in disposal of any complaint before it, as far as possible, follow the
procedures laid down section 13 of the Act.

(3) On the date of hearing, it shall be obligatory on the parties or their agents to appear before the
National Commission. Where the complainant or his agent fails to appear, the National Commission may
either dismiss the complaint for default or decide it on merits. Where the opposite party or its agent
fails to appear on the date of hearing the National Commission may decide the complaint ex parte.

(4) The complaint shall be decided as far as possible within a period of three months from the date of
notice received by opposite party where complaint does not require analysis or testing of commodities
and within five months if it requires analysis or testing of commodities.

(5) After the proceedings, the National Commission shall issue the orders accordingly.

Appeals against orders - -

An appeal can be made with the National Commission against the order of the State
Commission within 30 days of the order or within such time as the National Commission allows. [Section
19]

3. An appeal can be made with the Supreme Court against the order of the National
Commission within 30 days of the order or within such time as the Supreme Court allows. [Section 23]

Penalties for non-compliance - Every order made by the District Forum or State Commission, or the
National Commission may be enforced in the same manner as if it were a decree of the court. [Section
25]

All the persons - the trader, or complainant, or the opposite party, are supposed to comply with the
orders. When any such person fails or omits to comply with the order, the District Forum, or State
Commission, or the National Commission, as the case may be, may punish him with—
Page 59 of 80

Compiled by Rahul Kumar Singh

 - imprisonment for a term ranging between one month and three years, or

- with fine ranging between Rs. 2,000 and Rs. 10,000, or

- with both.

Q. Distinguish b/w (i) Contract of service and contract for service.

Contracts Of Service

 Employer-Employee relationship.

 Usually a continuous relationship.

 A duty of care owed to employees, as the employer.

 The employer is generally liable for the vicarious acts of employees.

 Protective legislation applies to contract.

 Wages/Salary payment method.

 Subject of contract is to carry on continuous work.

Contracts For Service

 Employer-Independent Contractor relationship.

 A relationship organised around the completion of a once-off piece of work.

 A duty of care, arising from occupiers’ liability.

 The employer is generally not liable for the vicarious acts of independent contractors.

 In general, protective legislation does not apply, except for the Safety Health and Welfare at
Work Act 1989 and the Equality Act.

 Various methods of payment, including lump sum per job.

 Subject of contract is once-off job.

Q. What do you mean by complaint? Who can be a complainant under the Consumer Protection Act,
1986? What is the manner in which complaint may be made to the District Forum? Who can file it?

Page 60 of 80

Compiled by Rahul Kumar Singh

An aggrieved consumer seeks Rederessal under the Act through the instrumentality of complaint. It
does not mean that the consumer can complain against his each and every problem. The Act has
provided certain grounds on which complaint can be made. Similarly, relief against these complaints can
be granted within the set pattern.

What constitutes a complaint [Section 2(1)(c)] - Complaint is a statement made in writing to the
National Commission, the State Commission or the District Forum by a person competent to file it,
containing the allegations in detail, and with a view to obtain relief provided under the Act.

Who can file a complaint [Sections 2(b) & 12] - At the outset it is clear that a person who can be termed
as a consumer under the Act can make a complaint. To be specific on this account, following are the
persons who can file a complaint under the Act :

(a) a consumer; or

(b) any voluntary consumer association registered under the Companies Act, 1956 or under
any other law for the time being in force, or

(c) the Central Government or any State Government,

(d) one or more consumers, where there are numerious consumers having the same
interest.

In addition to the above following are also considered as a consumer and hence they may file a
complaint :

Beneficiary of the goods/services : The definition of consumer itself includes beneficiary of goods and
services - K.B. Jayalaxmi v. Government of Tamil Nadu 1994(1) CPR 114.

Where a young child is taken to the hospital by his parents and the child is treated by the doctor, the
parents of such a minor child can file a complaint under the Act - Spring Meadows Hospital v. Harjot
Ahluwalia JT 1998(2) SC 620.

Legal representative of the deceased consumer : The Act does not expressly indicate that the LR of a
consumer are also included in its scope. But by operation of law, the legal representatives get clothed
with the rights, status and personality of the deceased. Thus the expression consumer would include
legal representative of the deceased consumer and he can exercise his right for the purpose of enforcing
the cause of action which has devolved on him - Cosmopolitan Hospital v. Smt. Vasantha P. Nair (1)
1992 CPJ NC 302.

Legal heirs of the deceased consumer : A legal heir of the deceased consumer can well maintain a
complaint under the Act - Joseph Alias Animon v. Dr. Elizabeth Zachariah (1) 1997 CPJ 96.

Page 61 of 80

Compiled by Rahul Kumar Singh

Husband of the consumer : In the Indian conditions, women may be illiterate, educated women may be
unaware of their legal rights, thus a husband can file and prosecute complaint under the Consumer
Protection Act on behalf of his spouse - Punjab National Bank, Bombay v. K.B. Shetty 1991 (2) CPR 633.

A relative of consumer : When a consumer signs the original complaint, it can be initiated by his/her
relative - Motibai Dalvi Hospital v. M.I. Govilkar 1992 (1) CPR 408.

Insurance company : Where Insurance company pays and settles the claim of the insured and the
insured person transfers his rights in the insured goods to the company, it can file a complaint for the
loss caused to the insured goods by negligence of goods/service providers. For example, when loss is
caused to such goods because of negligence of transport company, the insurance company can file a
claim against the transport company - New India Assurance Company Ltd. v. Green Transport Co. II
1991 CPJ (1) Delhi.

What a complaint must contain [Section 2(1)(c)] - A complaint must contain any of the following
allegations :

(a) An unfair trade practice or a restrictive trade practice has been adopted by any trader;

Example : A sold a six months old car to B representing it to be a new one. Here B can
make a complaint against A for following an unfair trade practice.

(b) The goods bought by him or agreed to be bought by him suffer from one or more
defects;

Example : A bought a computer from B. It was not working

properly since day one. A can make a complaint against B for supplying him a defective computer.

(c) The services hired or availed of or agreed to be hired or availed of by him suffer from
deficiency in any respect.

Example : A hired services of an advocate to defend himself against his landlord. The
advocate did not appear every time the case was scheduled. A can make a complaint against the
advocate.

(d) A trader has charged for the goods mentioned in the complaint a price in excess of the
price fixed by or under any law for the time being in force or displayed on the goods or any package
containing such goods.

Example : A bought a sack of cement from B who charged him Rs. 100 over and above
the reserve price of the cement declared by the Government. Here A can make a complaint against B.

Page 62 of 80

Compiled by Rahul Kumar Singh

 (e) Goods which will be hazardous to life and safety when used, are being offered for sale
to the public in contravention of the provisions of any law for the time being in force requiring traders to
display information in regard to the contents, manner and effect of use of such goods.

Example : A bought a tin of disinfectant powder. It had lid which was to be opened in a
specific manner. Trader did not inform. A about this. While opening the lid in ordinary way, some
powder flew in the eyes of A which affected his vision. Here A can make a complaint against the trader.

Note : The terms ‘unfair trade practice’, ‘restrictive trade practice’, ‘Goods’, ‘Defect’, ‘service’,
‘Deficiency’, ‘trader’, ‘Excess price’, and ‘Hazardous goods’ have been discussed in detail in the chapter
separately.

Q. Write short note on: (i) Service (ii) Trader (iii) Manufacturer (iv) Defect (v) Waiver (vi) Consumer
(vii) Appropriate Laboratory Test (viii) Deficiency (ix) Unfair Trade Practices

(i) Service

Section 2(1)(o) of the Act provides that “service” means service of any description which is made
available to potential users and includes the provision of facilities in connection with banking, financing,
insurance, transport, processing, supply of electrical or other energy, board or loading or both, housing
construction, entertainment, amusement or the purveying of news or other information, but does not
include the rendering of any service free of charge or under a contract of personal service.

The definition provides a list of eleven sectors to which service may pertain in order to come under the
purview of the Act. The list of these sectors is not an exhaustive one. Service may be of any description
and pertain to any sector if it satisfy the following criteria:

1. service is made available to the potential users, i.e., service not only to the actual users
but also to those who are capable of using it.

2. it should not be free of charge, e.g., the medical service rendered free of charge in
Government hospital is not a service under the Act;

3. it should not be under a contract of personal service.

When we talk about ‘service’ under the Consumer Protection Act, we take it as a regular commercial
transaction. Thus the services rendered under the contract of personal service are specifically excluded
from the definition.

The expression ‘contract of personal service’ is not defined under the Act. In common parlance, it means
- a contract to render service in a private capacity to an individual. For example, where a servant enters
into an agreement with a master for employment, or where a landlord agrees to supply water to his
tenant, these are the contracts of personal service. The idea is that under a personal service

Page 63 of 80

Compiled by Rahul Kumar Singh

relationship, a person can discontinue the service at any time according to his will, he need not
approach Consumer Forum to complaint about deficiency in service.

There is a difference between ‘contract of personal service’ and ‘contract for personal service’. In case of
‘contract of personal service’, the service seeker can order or require what is to be done and how it
should be done. Like a master can tell his servant to bring goods from a particular place. But in a
‘contract for personal service’, the service seeker can tell only what is to be done. How the work will be
done is at the wish of the performer. Like when a person gives a suit to the tailor for stitching, he does
not tell him which method he should use to stitch it.

Note : That it is ‘contract of personal service’ is excluded from the definition of service, ‘contract for
personal service’ is recognised as service under the Act.

It does not make a difference whether the service provider is a Government body or a Private body.
Thus even if a statutory corporation provides a deficient service, it can be made liable under the Act.

Example : A applied for electricity connection for his flour mill to Rajasthan State Electricity Board. The
Board delayed in releasing the connection. It was held deficient in performing service.

Some other sectors/professionals/services which are not specified in the definition of service but which
have been considered by the Consumer Forums as service sectors from time to time are listed below:

Advocates, Airlines, Chartered Accountants, Courier, Chit Fund, Education, Gas Cylinder/LPG, Medical
services, Postal services, Railways, Investment related services, and Telephone services.

Thus, the test is - whether the person against whom the complaint is made performs a service for
consideration which is sought by a potential user.

(ii) Trader

Section 2(1)(q) of the Act says that ‘trader’ means any person who

sells or distributes any goods for sale and

includes the manufacturer thereof, and

where such goods are sold or distributed in package form, includes the packer thereof.

Generally speaking ‘trader’ means any person who carries on a trade. Under the Consumer Protection
Act, even a packer has been included in the definition of trader. Packer means one who packs the goods.

Examples :

Page 64 of 80

Compiled by Rahul Kumar Singh

 1. A got an agency of ‘Indana’ products. He sells and distributes these products in North
India. He is a trader under the Act.

2. A manufactures combs. He is a trader under the Act.

3. A provide bottles to pack the perfume manufactured by B. Here A is also a trader under
the Act.

(iii) Manufacturer

Manufacturer - In terms if clause (j) of section 2(1) of the Act, “manufacturer” means a person who—

(i) makes or manufactures any goods or parts thereof; or

(ii) does not make or manufacture any goods but assembles parts thereof made or
manufactured by others and claims the end-product to be goods manufactured by himself; or

(iii) puts or causes to be put his own mark on any goods made or manufactured by any other
manufacturer and claims such goods to be goods made or manufactured by himself.

Thus manufacturer is a person who either himself manufactures goods, or assemble any goods
manufactured by others, or puts his own mark or trade mark on the goods manufactured by others.

Examples :

1. A Ltd. were into manufacturing of Pressure Cookers. B bought a Cooker which burst out
while using. B sued A Ltd. for compensation. Here A Ltd. being manufacturer of the Cooker is liable for
the loss.

2. A Ltd. used to buy components and assemble computers there from. They were selling
them under the brand name ‘Rotal’. B bought a Rotal computer which turned out to be defective. Here
B can hold A Ltd. Liable for the loss as they will be considered manufacturer of Rotal computer under the
Act.

3. N bought H-4 Cotton seeds from the market which were labelled as produced and
marketed by the Hindustan Levers Ltd. N established that the seeds were defective. He sued HLL. HLL
contended that it did not manufactured the seeds but had only marketed them, and that some company
based in Gujarat produced the same. The Commission held that in this case HLL comes under the third
limb of the definition of manufacturer under the Act. Thus it is liable for the loss suffered by N - Namdeo
Baijrao Raut v. Hindustan Lever Ltd. [1993] 3 CPR 346 (Mah. CDRC).

It may be noted that where a manufacturer despatches any goods or part thereof to any branch office
maintained by him, such branch office shall not be deemed to be the manufacturer even though the
Page 65 of 80

Compiled by Rahul Kumar Singh

parts so despatched to it are assembled at such branch office and are sold or distributed from such
branch office.

Example : A Ltd. based in Delhi was having a branch office in Chennai. It used to sent components of
computers to its Chennai branch which was assembling and selling them. B purchased a computer from
Chennai branch which turned out to be defective. Here A Ltd. is responsible for the loss, and not the
Chennai branch

(iv) Defect

Section 2(1)(f) of the Act provides that, “defect” means any fault, imperfection or shortcoming in the
quality, quantity, potency, purity or standard which is required to be maintained by or under any law of
the time being in force under any contract, express or implied or as is claimed by the trader in any
manner whatsoever in relation to any goods.

This is an exhaustive definition. It means that the Act recognises only those defects which are covered
by the definition. Any type of defect not mentioned here will not be entertained by Consumer Forums.
Moreover the defect has to be in relation to goods only, i.e., if an item does not fall within the definition
of ‘Goods’, no defect can be complained therein. However, the coverage of this definition is very wide.

Examples:

1. A Pressure Cooker burst and caused injury to the user. It was held to be a manufacturing
defect - T.T. (P.) Ltd. v. Akhil Bhartiya Grahak Panchayat II [1996] CPJ 239 NC.

2. Failure to handover registration book along with jeep purchased by complainant is a

defect. [Ramesh Chandra v. Commercial Tax Officer [1993] 3 CPR 182 (Ori.)].

3. Where laboratory test report showed that soft drink was not fit for human
consumption, it was held defective - Narayanan Vyankatkrishnan Iyengar v. Shakti Foods [1994] 2 CPJ
652 (Mah.).

4. Rape seed oil adulterated with toxic substances, which led to paralysis of limbs and
other disabilities, has been considered as defective - Barsad Ali v. MD West Bengal Essential
Commodities Supply Corporation Ltd. (1993) 1 CPR 217 WB.

5. Electric household appliances which are not in accordance with the standards
prescribed by ISI, being unsafe are defective - Farooq Hazi Ismail Saya v. Gavabhai Bhesania (1991) 2
CPJ 452 (Guj.).

6. Gas Cylinder with excessive gas is defective goods - Dayanand A Avasare v. Bharat
Petroleum Corporation Ltd. (1993) 1 CPR 278 (Mah.).

Page 66 of 80

Compiled by Rahul Kumar Singh

 7. Development of cracks of half inch to three and a half inch in walls and mosaic floor in a
flat after taking possession from a Housing Board - R. Shanmugasundaram v. Tamil Nadu Housing
Board (1998) 1 CPJ 96 NC.

8. A supplied white marble to B. Later on the colour of the marble changed. B sued a
alleging supply of defective marble. It was held that A should have expressly told B that the marble
would not retain its colour when polished. In the absence of such assertion, it is deemed that A made B
to understand that the marble would retain its white colour and when the colour changed, it comes
within the scope of ‘defect’ in goods under the Act - Chitranjan Sahu v. N.C. Jain II (1993) CPJ 1127
(Ori.).

(v) Waiver

The term waiver is used in many legal contexts. A waiver is essentially a unilateral act of one person that
results in the surrender of a legal right. The legal right may be constitutional, statutory, or contractual,
but the key issue for a court reviewing a claim of waiver is whether the person voluntarily gave up the
right. If voluntarily surrendered, it is considered an express waiver.

In insurance law waiver is used in numerous contexts. For example, under the doctrine of waiver, if the
insurer has knowledge of facts that would bar its primary liability for a policy it has written but proceeds
to treat the policy as being in force, it will not be allowed to plead such facts in court to avoid its primary
liability.

A waiver of premium clause is a provision in an insurance policy that permits the waiver of premium
payments upon the disability of the insured. Commonly such waivers take effect only after a certain
time of disability.

Various waiver provisions are inserted into contracts. The parties may agree to surrender a substantive
right granted by statute, such as a limitation on the amount of property that may be exempted from
debt collection, or a procedural right that requires a certain number of days notice before an action can
be taken.

(vi) Consumer

Section 2(d) of the Consumer Protection Act says that consumer means any person who—

(i) buys any goods for a consideration which has been paid or promised or partly paid and
partly promised, or under any system of deferred payment, and includes any user of such goods other
than the person who buys such goods for consideration paid or promised or partly paid or partly
promised, or under any system of deferred payment when such use is made with the approval of such
Page 67 of 80

Compiled by Rahul Kumar Singh

person, but does not include a person who obtains such goods for resale or for any commercial purpose;
or

(ii) hires or avails of any services for a consideration which has been paid or promised or
partly paid and partly promised, or under any system of deferred payment, and includes any beneficiary
of such services other than the person who hires or avails of the services for consideration paid or
promised, or partly paid and partly promised, or under any system of deferred payment, when such
services are availed of with the approval of the first mentioned person;

Explanation.—For the purposes of the sub-clause (i), “commercial purpose” does not include use by a
consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by
means of self-employment.

Consumer of goods - The provision reveals that a person claiming himself as a consumer of goods should
satisfy that—

THE GOODS ARE BOUGHT FOR CONSIDERATION - There must be a sale transaction between a seller and
a buyer; the sale must be of goods; the buying of goods must be for consideration. The terms sale, goods,
and consideration have not been defined in the Consumer Protection Act. The meaning of the terms
‘sale’, and ‘goods’ is to be construed according to the Sale of Goods Act, and the meaning of the term
‘consideration’ is to be construed according to the Indian Contract Act.

ANY PERSON WHO USE THE GOODS WITH THE APPROVAL OF THE BUYER IS A CONSUMER - When a
person buys goods, they may be used by his family members, relatives and friends. Any person who is
making actual use of the goods may come across the defects in goods. Thus the law construe users of
the

goods as consumers although they may not be buyers at the same time. The words “....with the approval
of the buyer” in the definition denotes that the user of the goods should be a rightful user.

Example : A purchased a scooter which was in B’s possession from the date of purchase. B was using it
and taking it to the seller for repairs and service from time to time. Later on B had a complaint regarding
the scooter. He sued the seller. The seller pleaded that since B did not buy the scooter, he was not a
consumer under the Act. The Delhi State Commission held that B, the complainant was using it with the
approval of A, the buyer, and therefore he was consumer under the Act. [Dinesh Bhagat v. Bajaj Auto
Ltd. (1992) III CPJ 272]

Note : This is an exception to the general rule of law that a stranger to a contract cannot sue.

ANY PERSON WHO OBTAINS THE GOODS FOR ‘RESALE’ OR COMMERCIAL PURPOSES’ IS NOT A
CONSUMER - The term ‘for resale’ implies that the goods are brought for the purpose of selling them,
and the expression ‘for commercial purpose’ is intended to cover cases other than those of resale of

Page 68 of 80

Compiled by Rahul Kumar Singh

goods. When goods are bought to resell or commercially exploit them, such buyer or user is not a
consumer under the Act.

Examples :

1. A jeep was purchased to run it as a taxi. The question was whether the buyer of the jeep
was a consumer under the Act. The Rajasthan State Commission held that to use the jeep as a taxi with
the object to earn profits was a commercial purpose, and therefore, the buyer/user was not a consumer
within the meaning of the Act. [Smt. Pushpa Meena v. Shah Enterprises (Rajasthan) Ltd. (1991) 1 CPR
229].

2. L Ltd. purchased a computer system from Z. The computer system was giving constant
trouble and Z was not attending it properly. L Ltd. filed a complaint against Z with the National
Commission. Z contended that L Ltd. was not a consumer under the Act because computer system was
used for commercial purposes. L Ltd. argued that computer system was not directly used of commercial
purposes rather it was used to facilitate the work of the company. The Commission rejected the
argument on the grounds that the system made part of the assets of the company, and its expenses
were met by it out of business income. Thus the said purchase was a purchase for commercial purposes
and L Ltd. was held not to be a consumer under the Act.

One thing is plain and clear from the decided cases that what is important to decide is - Whether a
particular good is used for commercial purposes. If it is the buyer/user is not a consumer, and if it is not -
the buyer/user is a consumer.

PERSON BUYING GOODS FOR SELF EMPLOYMENT IS A CONSUMER - When goods are bought for
commercial purposes and such purchase satisfy the following criteria :

- the goods are used by the buyer himself;

- exclusively for the purpose of earning his livelihood;

- by means of self-employment,

then such use would not be termed as use for commercial purposes under the Act, and the user is
recognised as a consumer.

Examples :

1. A buys a truck for plying it as a public carrier by himself, A is a consumer.

2. A buys a truck and hires a driver to ply it, A is not a consumer.

3. A has one cloth shop. He starts another business of a photocopier and buys a photocopy
machine therefore. He hasn’t bought this machine exclusively for the purpose of earning livelihood. He
is not a consumer under the Act.
Page 69 of 80

Compiled by Rahul Kumar Singh

Note : That this is an exception to the rule that a buyer of commercial goods is not a consumer under
the Act.

Consumer of services - A person is a consumer of services if he satisfy the following criteria :

SERVICES ARE HIRED OR AVAILED OF - The term ‘hired’ has not been defined under the Act. Its
Dictionary meaning is - to procure the use of services at a price. Thus the term ‘hire’ has also been used
in the sense of ‘avail’ or ‘use’. Accordingly it may be understood that consumer means any person who
avails

The intention of the legislature is to exclude big business houses carrying on business with profit motive
from the purview of the Act. At the same time it is pertinent to save the interests of small consumers
who buy goods for self employment to earn their livelihood, like a rickshaw puller buying rickshaw for
self employment, or a farmer purchasing fertilizer for his crops, or a taxi driver buying a car to run it as a
taxi, etc.

Example : A was running a small type institute to earn his livelihood. He purchased a photocopy
machine-canon NP 150. It proved defective. He sued the seller who contended that A is not a consumer
under the Act as he purchased the photocopier for commercial use. The Commission held that by no
stretch of imagination it can be said that the photocopier would bring large scale profits to A. It was a
part of his small scale enterprise. He was construed as consumer under the Act.

However, if such a buyer takes assistance of two or more persons to help him in operating the vehicle or
machine, etc., he does not cease to be a consumer.

Examples :

1. A buys a truck, ply it himself and hires a cleaner who accompany him all the time and at
times drives also when A is busy otherwise, A is a consumer.

2. P, an eye surgeon, purchased a machine from R for the hospital run by him. The
machine was found to be a defective one. R contended that P was not a consumer under the Act as the
machine was bought for commercial purposes. The National Commission rejected this contention and
held that P is a medical practitioner, a professional working by way of self employment by using his
knowledge and skill to earn his livelihood. It was not proved by any evidence that P is running a huge
hospital. Thus the purchase of machinery is in the nature of self employment. [Rampion
Pharmaceuticals v. Dr. Preetam Shah (1997) I CPJ 23 (NCDRC)].

Consumer of services - A person is a consumer of services if he satisfy the following criteria :

SERVICES ARE HIRED OR AVAILED OF - The term ‘hired’ has not been defined under the Act. Its
Dictionary meaning is - to procure the use of services at a price. Thus the term ‘hire’ has also been used
in the sense of ‘avail’ or ‘use’. Accordingly it may be understood that consumer means any person who
avails or uses any service.
Page 70 of 80

Compiled by Rahul Kumar Singh

Example : A goes to a doctor to get himself treated for a fracture. Here A is hiring the services of the
doctor. Thus he is a consumer.

What constitutes hiring has been an issue to be dealt with in many consumer disputes. If it is established
that a particular act constitutes hiring of service, the transaction falls within the net of the Consumer
Protection Act, and vice-versa.

Examples :

1. A passenger getting railway reservation after payment is hiring service for consideration.

2. A landlord neglected and refused to provide the agreed amenities to his tenant. He filed
a complaint against the landlord under the Consumer Protection Act. The National Commission
dismissed the complaint saying that it was a case of lease of immovable property and not of hiring
services of the landlord. [Smt. Laxmiben Laxmichand Shah v. Smt. Sakerben Kanji Chandan [1992] 1
Comp. LJ 177 (NCDRC)].

3. A presented before the Sub-Registrar a document claiming it to be a will for registration

who sent it to the Collector of Stamps for action. The matter remain pending for about six years. In the
meantime A filed a complaint under the Consumer Protection Act alleging harassment by the Sub-
Registrar and Collector and prayed for compensation. The National Commission held the view that A
was not a “consumer” under the CPA. Because there was no hiring of services by the complainant for
consideration and because a Government official doing his duty as functionary of the State under law
could not be said to be rendering a service to the complainant. [S.P. Goel v. Collector of Stamps (1995)
III CPR 684 (SC)].

CONSIDERATION MUST BE PAID OR PAYABLE - Consideration is regarded necessary for hiring or availing
of services. However, its payment need not necessarily be immediate. It can be in installments. For the
services provided without charging anything in return, the person availing the services is not a consumer
under the Act.

Examples :

1. A hires an advocate to file a suit for recovery of money from his employer. He promises
to pay fee to the advocate after settlement of the suit. A is a consumer under the Act.

2. A goes to a Doctor to get himself treated for a fracture. The Doctor being his friend
charged him nothing for the treatment. A is not a consumer under the Act.

3. B issued an advertisement that a person could enter the contest by booking a Premier
Padmini car. S purchased the car and thus entered the contest. He was declared as winner of the draw
and was thus entitled to the two tickets from New Delhi to New York and back. S filed a complaint
alleging that the ticket was not delivered to him. The National Commission held that S was not a

Page 71 of 80

Compiled by Rahul Kumar Singh

consumer in this context. He paid for the car and got it. B was not liable so far as the contract of winning
a lottery was concerned. [Byford v. S.S. Srivastava (1993) II CPR 83 (NCDRC)].

The Direct and Indirect taxes paid to the State by a citizen is not payment for the services rendered.

Example : T was paying property tax for his house to the local corporation. This corporation was
responsible for proper water supply to the premises under its work area. T raised a consumer dispute
over the inadequacy of water supply by the corporation. The National Commission held that it was not a
consumer dispute as water supply was made by the corporation out of its statutory duty and not by
virtue of payment of taxes by T. - Mayor, Calcutta Municipal Corporation v. Tarapada Chatterjee (1994)
1 CPR 87 (NCDRC).

(vii) Appropriate Laboratory Test

Section 2(1)(a) of the Act defines an “appropriate laboratory” as a laboratory or organisation—

(i) recognised by the Central Government;

(ii) recognised by a State Government, subject to such guidelines as may be prescribed by

the Central Government in this behalf; or

(iii) any such laboratory or organisation established by or under any law for the time being
in force, which is maintained, financed or aided by the Central Government or a State Government for
carrying out analysis or test of any goods with a view to determining whether such goods suffer from
any defect.

Note : Rule 2A of the Consumer Protection Rules, 1987 provides the procedure to be followed by the
laboratories in order to get recognition from the States. We have not discussed this procedure here
since it is beyond purview of our study.

(viii) Deficiency

Section 2(1)(g) of the Act provides that, “deficiency” means any fault, imperfection, shortcoming or
inadequacy in the quality, nature and manner of performance which is required to be maintained by or
under any law for the time being in force or has been undertaken to be performed by a person in
pursuance of a contract or otherwise in relation to any service.

Reading the above definition by breaking it into elements, we get—

(a) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality,
nature and manner of performance
Page 72 of 80

Compiled by Rahul Kumar Singh

 Examples :

1. A boarded a train. The compartment in which he and his wife travelled was in a bad
shape-fans not working, shutters of windows were not working, rexin of the upper berth was badly torn
and there were rusty nails which caused some injuries to the wife of A. A made a complaint against the
railway department. It was held that the complaint constituted ‘deficiency in service’ and the
compensation of Rs. 1500 was awarded to A - General Manager, South Eastern Railway v. Anand
Prasad Sinha I [1991] CPJ 10 (12) NC.

2. Dr. A treated P under Allopathic system, though he himself was a Homoeopathic

practitioner. Later on P allegated A for wrong treatment. The Commission held it as deficiency in service
- Poonam Verma v. Ashwin Patel [1996] II CPJ 1 SC.

3. A booked a car for B and promised to deliver it within one month of booking. The car
was not delivered even after four months. Here A could be held liable for deficiency in service.

One interesting aspect is that deficiency in service should occur during the happening of performance.
Thus it is crucial to determine when the performance of a service commenced.

Example : A contracted with B to supply, erect and commission cold rolling mill. A
supplied the mill, but failed to erect and commission the mill. B filed a suit alleging deficiency of service
on A’s failure to elect and commission the mill. The National Commission observed that the deficiency
must pertain to performance of service. Since A never started erecting and commissioning the mill, the
question of performance did not arise. Thus the case is not that of deficiency of service - Jaipur Metals
& Electricals Ltd. v. Laxmi Inds. [1991] II CPJ 602 (NC).

(b) Such quality and manner of performance of service should have been required to be
maintained by or under any law for the time being in force or undertaken to be performed by a person
in pursuance of a contract or otherwise.

Example : A, the builder, promised under written agreement to provide a flat to B.

Subsequently he expressed his inability to give possession of the flat and entered into a fresh agreement
to pay Rs. 9,51,000 to B in place of flat. A didn’t even pay this money. B sued A. The Commission held
that since A had not even paid the money as per subsequent contract, the rights of earlier contract can
be involved by B. And that there was a deficiency of service on the part of builders - Lata Construction v.
Dr. Rameshchandra Ramniklal Shah AIR 2000 SC 380 (384).

(c) The deficiency must be in relation to a service - The words ‘....in relation to any service’
in the definition signifies that the deficiency is always in terms of service. Thus if the grievance pertains
to a matter which does not fall in the definition of service, the concept of deficiency would not apply.

Example : A deposited Rs. 100 with B as application fee and executed bond for the
purpose of drilling tubewell. B did not drill the tubewell because it was not feasible. A alleged deficiency

Page 73 of 80

Compiled by Rahul Kumar Singh

in service. It was held that depositing Rs. 100 as application fee and executing a bond does not amount
to hiring of services, thus the deficiency of service cannot be complained of in the matter - Mangilal v.
Chairman District Rural Development Agency [1991] 1 CPJ 474 (Raj.).

Deficiency in service due to circumstances beyond control

In normal course, if the service is found deficient as per the above criteria, it is held deficient and the
compensation is awarded. However there may be abnormal circumstances beyond the control of the
person performing service. If such circumstances prevent a person from rendering service of the desired
quality, nature and the manner, such person should not be penalised for the same.

Example : A undertook to supply water to B for irrigation of crops. Due to power grid failure of the State,
A could not get sufficient power to perform the service. Here A cannot be held liable for deficiency in
service.

However, negligence on the part of performer may not be excused under the cover of circumstances
beyond control.

Example : A agreed to supply water to B for irrigation of crops. He failed to do so because of a power
breakdown due to burning of transformer. As a result crops damaged. B sued A for providing deficient
service. The National Commission held that it was duty of A to get the transformer repaired
immediately. Si

(ix) Unfair Trade Practices [Section 2(1)(r) and (n)]

What is an Unfair Trade Practice - The Act says that, “unfair trade practice” means a trade practice
which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any
service, adopts any unfair method or unfair or deceptive practice including any of the following
practices, namely—

(1) The practice of making any statement, whether orally or in writing or by visible representation
which—

(i) falsely represents that the goods are of particular standard, quality, quantity, grade,
composition, style or model;

(ii) falsely represents that the services are of a particular standard, quality or grade;

(iii) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as
new goods;

(iv) represents that the goods or services have sponsorship, approval performance,
characteristics, accessories, uses or benefits which such goods or services do not have;
Page 74 of 80

Compiled by Rahul Kumar Singh

 (v) represents that the seller or the supplier has a sponsorship or approval or affiliation
which such seller or supplier does not have;

(vi) makes false or misleading statement concerning the need for, or the usefulness of, any
goods or services;

(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of
life of a product or of any goods that is not based on an adequate or proper test thereof;

(viii) makes to the public a representation in a form that purports to be a warranty or

guarantee of a product or of any goods or services; or a promise to replace, maintain or repair an article
or any part thereof or to repeat or continue a service until it has achieved a specified result, if such
purported warranty or guarantee or promise is materially misleading or if there is no reasonable
prospect that such warranty, guarantee or promise will be carried out;

(ix) materially misleads the public concerning the price at which a product or like products
or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a
representation as to price shall be deemed to refer to the price at which the product or goods or
services has or have been sold by sellers or provided by suppliers generally in the relevant market unless
it is clearly specified to be the price at which the product has been sold or services have been provided
by the person by whom or on whose behalf other representation is made;

(x) gives false or misleading facts disparaging the goods, services or trade of another
person.

MOTOR VEHICLE ACT, 1988

Q. Explain the objectives of enactment of Motor Vehicle Act, 1988.

The Motor Vehicles Act, 1988 has been enacted keeping in mind the following objectives;

Page 75 of 80

Compiled by Rahul Kumar Singh

  To take care of the fast increasing number of both commercial vehicles and personal vehicles in
the country.

 Concern for road safety standards, and pollution-control measures, standards for transportation
of hazardous and explosive materials

 Need for effective ways of tracking down traffic offenders

 Stricter procedures relating to grant of driving licences and the period of validity thereof.

 Administration of the Solatium Scheme by the General Insurance Corporation.

 Provision for enhanced compensation in cases of “no fault liability” and in hit and run motor
accidents

 Provision for payment of compensation by the insurer to the extent of actual liability to the
victims of motor accidents irrespective of the class of vehicles

 Providing adequate compensation to victims of road accidents without going into long drawn
procedure

 Enhancing penalties for traffic offenders

 Increase in the amount of compensation of the victims of hit and run cases.

 Removal of time limit for filling of application by road accident victims for compensation.

 Punishment in case of certain offences is made stringent.

 Formula for payment of compensation to road accident victims on the basis of age / income,
which is more liberal and rational etc.

Q. Define motor vehicle under Motor Vehicle Act, 1988. Discuss "Hit and Run away cases".
MOTOR VEHICLE: "motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted
for use upon roads whether the power of Subs. & ins. by Act. propulsion is transmitted thereto from
an external or internal source and includes a chassis to which a body has not been attached and a
trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for
use only in a factory or in any other enclosed premises or a vehicle having less than four wheels
fitted with engine capacity of not exceeding thirty-five cubic centimeters;

The Motor Vehicles Act, 1988 is a piece of social legislation and its provisions are designed to protect the
rights of road accident victims where the identity of motor vehicle causing the accident cannot be
established. The relevant legal provision is enshrined in Section 161 of Motor Vehicles Act where a “hit

Page 76 of 80

Compiled by Rahul Kumar Singh

and run motor accident” is defined as an accident arising out of the use of a motor vehicle or motor
vehicles the identity whereof cannot be ascertained in spite of reasonable efforts for the purpose. This
Scheme came into force from 1.10.1982.

This Section provides for payment of compensation (solatium) as follows:

 In respect of the death of any person resulting from a hit and run motor accident, now a fixed
sum of Rs.25,000

 In respect of grievous hurt to any person resulting from a hit and run motor accident, now a
fixed sum of Rs.12,500

HIT & RUN CLAIMS PROCEDURE

The victim of the “hit-and-run” vehicle or his legal representative shall make an application to the Claim
Enquiry Officer in each Taluka. After due enquiries, the Claims Enquiry Officer will submit a report
together with certificate of post mortem or injury certificate to the claims settlement commissioner who
will either the District Collector or the Deputy Commissioner at the District level. He will process the
claims and sanction the payment within 15 days from the receipt of report from Claim Enquiry Officer
and communicate sanction order to the nominated office of the Insurance Company. The compensation
under Hit and Run Accident cases are made from a Solatium Fund which is contributed by General
Insurance industry under an agreed formula. The administration of claims is done by New India
Assurance Co Ltd which has nominated one Divisional Manager in each district at District Level
Committee which is headed by District Collector.

Q. Who can apply for compensation? Where the application for compensation will be filed?
Compensatory provisions under the Motor Vehicle Act or How to Claim Compensation/damages if a
person gets injured or dies in an accident

I. Fixed compensation on the principle of no fault as provided under Section 140 of the Act

 Where death or permanent disablement of any person has resulted from an accident arising out
of the use of a motor vehicle or motor vehicles, the owner of the vehicle be liable to pay
compensation in respect of such death or disablement.

 The amount of compensation which shall be payable in respect of the death of any person shall
be fixed sum of Rs. 50,000/- and in respect of permanent disablement shall be a fixed sum of Rs.
25,000/-.

 Claimant shall not be required to plead and establish that the death or permanent disablement
in respect of which the claim has been made was due to any wrongful act, neglect or default of
the owner or owners.
Page 77 of 80

Compiled by Rahul Kumar Singh

  The claim shall not be defeated by reason of any wrongful act, neglect or default of the person
in respect of whose death or permanent disablement the claim has been made nor shall the
quantum of compensation in respect of such death or permanent disablement be reduced on
the basis of the share of such person in the responsibility for such death or permanent
disablement.

After exercise of this option, Claimant cannot opt for compensation under section 163 A based on
structured formulas as provided herein below

II. Alternative method of compensation or Payment of Compensation on structured formulae basis –

Sec 163 A

The owner of the motor vehicle of the authorized insurer shall be liable to pay in the case of death or
permanent disablement due to accident arising out of the use of motor vehicle, compensation, as
indicated in the Second Schedule, to the legal heirs or the victim as the case may be.

However where the person is entitled to claim compensation under section 140 and section 163A, he
shall file the claim under either of the said section and not under both.

III. Compensation in case of Hit & Run Motor Accidents where identity of vehicle is not traceable

Where the identity of the vehicles is not traceable such cases are called hit and run cases, a fixed
compensation is provided to the victims from the Solatium Fund created by the Government. It must
therefore be shown that identity of the motor vehicle which caused the accident could not be traced or
ascertained inspite of reasonable efforts, meaning thereby that the accident must be shown to have
occurred on account of the victim being hit by some unidentified vehicle which hit him and ran away.
How to Make Application For Grant Of Compensation

How to Make Application For Grant Of Compensation

An application for compensation is made under section 166 of the Motor Vehicles Act and shall be
accompanied by a court fee of Rs. 10 in the form of court-fee stamps.

Particulars to the submitted in the Application

Following particulars are required to be provided when a Claimant files application seeking grant of
compensation

1. Name and father’s name of the person injured/dead (husband’s name in the case of married
woman and widow).

2. Full address of the person injured/dead.

3. Age of the person injured/dead.

Page 78 of 80

Compiled by Rahul Kumar Singh

 4. Occupation of the person injure/dead.

5. Name address of the employer of the insured/dead, if any.

6. Monthly income of the person injured/dead.

7. Whether the person in respect of whom compensation is claimed pay income tax (to be
supported by documentary evidence)

8. Place, date and time of accident.

9. Name and address of Police station in whose jurisdiction the accident took place or was
registered.

Limitation Period

No application for compensation shall be entertained unless it is made within six months of the
occurrence of the accident.

Appeal

An appeal against the order of the Claims Tribunal lies to the High Court and may be filed within ninety
days from the date of the award.

No appeal shall lie against an award if the amount in dispute in the appeal is less than 10,000 rupees.

Who can File an Application for Compensation ?

An application for compensation involving the death of, or bodily injury to, persons arising out of the
use of motor vehicles, can be made–

1. by the person who has sustained the injury; or

2. by the owner of the property; or

3. where death has resulted from the accident, by all or any of the legal representatives of the
deceased; or

4. by any agent duly authorized by the person injured or all or any of the legal representatives of
the deceased, as the case may be.

Where to File an Application for Compensation ?

Every application shall be made, at the option of the claimant,

1. To the Claims Tribunal having jurisdiction over the area in which the accident occurred or

Page 79 of 80

Compiled by Rahul Kumar Singh

 2. To the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries
on business or

3. Within the local limits of whose jurisdiction the defendant resides.

Q. Define light motor vehicle

As per Section 2 (21) “light motor vehicle” means a transport vehicle or omnibus the gross vehicle
weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which,
does not exceed [7,500] kilograms; .

Page 80 of 80

Compiled by Rahul Kumar Singh