PART A: LAW OF TORTS

Topic 1: Introduction: Nature and Scope

Topic 2: Defence against Tortious Liability

Topic 3: Negligence including Medical Negligence

Topic4: Nervous Shock

Topic 5: Remoteness of Damage

Topic 6 : No Fault Liability- Strict and Absolute Liability

Topic 7: Vicarious Liability of the State

Topic 8: Defamation

PART B: CONSUMER PROTECTION ACT,1986

Topic 9: Objective and Salient Feature of the Consumer Protection Act, 1986
 Difference between Torts and breach of Contract/Crime:

(Q) Difference between tort and a crime. [2017-1(d)]

(Q) Difference between Torts and Breach of Contract. [2019-1(a)]

Torts and Crime:

Tort Crime

1. Tort is the infringement of a Whereas crime is considered to be

private rights belonging to violation of Public Rights
individual.

2. The injured party has to file a Criminal proceedings are brought by

suit the state

3. Remedy is in the form of Criminal offenders are punished.

monetary compensation.

4. Law of Torts is uncodified and based on Criminal Law are codified and are dealt in
precedent law. Indian Penal Code,1860

5. It happens mostly due to negligence. The Intention (mens rea) plays a very important
tort is hardly intentional. role in committing the crime.

6. The rules applicable to the law of Torts The rules applicable to the law of crime are
are different. Law of Torts are based on different from the law of Torts.
judicial decisions.

7. There is bar of limitation of prosecution There is no bar of limitation in prosecution

in law of Torts. of crime.
Torts and Breach of Contract:

Torts Breach of Contract

1. A torts results, from the breach of A breach of contract results from the
duties imposed by law (right in duties undertaken by the parties
rem). themselves (right in personam)

2. There is no concept of privity of Privity of contract exists between the

contract. Duties imposed by law parties.
toward the world at large.

3. Damages in tort are unliquidated. Damages in cases of breach of contract

are liquidated.

4. In Tort motive may be taken into In breach of contract, the motive is

consideration. irrelevant and immaterial.

5. In Tort duty is bound towards a persons Where the duty is in breach of contract is
bound towards a specific person/persons.

6. In tort the damages may be In breach of contract, the nature of the

compensatory or even exemplary damages damage is compensatory.
may also be awarded.

7. In Tort,there is an infliction of an injury Consent is the basic essential of all

without the consent of the plaintiff. contractual obligation.

Injuria Sine Damno and Damnun Sine Injuria

(Q) Explain the maxims injuria sine damno and damnum sine injuria
 citing relevant case law. [2016-1(a)]

(Q) ―Running of contemporary business by a competitor may result in

losses to a person.‖ In view of the statement distinguish between Injuria sine
damno and „Damnus sine injuria’. [2017-2(b)]

(Q) Explain the maxims Injuria Sine Damno and Damnum Sine Injuria

with the help of decided cases. [2018-1(a)]

(Q) Explain the maxim injuria sine damno and damnum sine injuria citing
relevant case law. [2019-2(a)]

(Q) A constructs a building without taking permission from the local

authority that is necessarily required under the relevant statute. The authority
demolishes the said construction after giving A sufficient notice and time for
explanation. A sues the authority for the loss he suffered due to demolition
and alleges malice and ill motive on the part of some officers who had
personal grudges against him.
Does the act of local authority amount to causing legal damage to A and
whether the presence of malice may affect the outcomes? Decide with
reference to relevant law maxims and the court decisions. [2019-
2(b)](Damnun sine Injuria case)

Introduction:
Maxim refers to the established principles and prepositions. That is the general rules or
principles or guidelines laid down and which are to be followed by the general public.
Maxims are very useful, as with the help of this particular point of law can be
understood clearly and precisely and also used for the proper solution of the cases.
Maxims are very widely used in various branches of law and so in the law of torts.

Difference between Injuria Sine Damno and Damnun Sine Injuria

Injuria Sine Damno:- when there was a violation of legal rights and harm or injuria
has been committed then the plaintiff could move to the court for the damages
caused to him. Injuria sine damno is actionable per se it means in the case of
Injuria Sine Damno person has the right to move to the court if their legal rights
have been infringed.

Meaning of injuria sine damno and damno sine injuria

(1) Injuria means an infringement of a legal right conferred by the law

(2) Damnun means substantial loss or damages

Damnun Sine Injuria

When there has been harm or injuria has been committed without any
violation legal rights. Damnun sine injuria is non-actionable in the court.
When there is no violation of legal rights no legal action lies in a court of
law even though the substantial loss has been occurred to the plaintiff by
the acts of the defendant.

Damnum sine injuria refers to damages without injury or damages in which

there is no infringement of any legal rights that are vested with the plaintiff.
If no legal rights have been infringed so no action lies in the case of
damnum sine injuria. The maxim is based on the general principle which is
if one exercises his common or ordinary rights, within reasonable limits,
and without infringing other‗s legal rights, such an exercise does not give
rise to an action in tort in favor of that other person. Damages can be in any
form either in the form of any substantial harm or loss suffered from respect
to the money, comfort, health, etc.

Sl. Injuria Sine Damnum Damnum sine Injuria

No.

1. It is the violation of legal It is the harm or damaged

rights without any harm or caused to the plaintiff without
injuria to the plaintiff. any legal rights violation.
2 Injuria sine damno is Damage suffered without
actionable per se it means violation of any legal rights.
in the case of Injuria Sine Hence there is no action lies
Damno person has the right against the defendant.
to move to the court
3. Defendant liable for the There is no liability on the
damages to caused to the defendant even when they
plaintiff. have acted maliciously.
4. Compensation is in the form of No compensation is awarded
damages is awarded by the court

5. Principle of the maxim is Principle of the maxim is that

that when there is legal right if one exercises his common
than their will be also legal or ordinary rights, within
remedies for that. reasonable limits,and without
infringing other‗s legal rights,
such an exercise does not give
rise to an action in tort in
favor of that other person
6. In the case, plaintiff suffers In this case, plaintiff suffers
legal injury, it does not damages but suffered no legal
matter they have suffered injury.
any loss or not.
7. This maxim is for the legal This maxim is for the moral
wrongs which are actionable wrongs which have no action
if the person‘s legal right has in the eye of the law.
been violated.

Case related to Injuria Sine Damno

*Ashby v. White (1703)

In this case, the plaintiff succeeded in his action even though there is no
damage caused to him by the defendant act. Plaintiff was the qualified voter
at the parliamentary election, but when the plaintiff went to cast his vote he
was wrongfully returned by the returning officer. There have been no
damages caused to him because the candidate he wanted to vote for won in
spite of that.
 In the above case, there is no damage caused to him but his legal right to cast
a vote has been violated. Legal rights do not hold any meaning if there is no
legal remedy for that. Therefore we could conclude that whether damaged or
loss occurred to the plaintiff or not it does not matter if the legal right has
been infringed there must be a remedy for their implementation.

Case related to Damnun Sine Injuria :

*Town Area committee v Prabhu Dayal (AIR 1975)

This is a defendant's appeal arising out of a suit for recovery of compensation for
damages suffered by the plaintiff by an act of defendants. In that case, the plaintiff
constructed 16 shops on the old foundations of a building. The said construction
was made without obtaining the license from the government authority. Neither
any notice of intension to construct a building was given under Section 178 of the
U.P. Municipal Act neither the sanction was taken which was required under
Section 180 of the U.P Municipal Act. The defendants demolished this
construction. In an action against the defendants, the plaintiff alleged that the
action taken by the defendant was mala fide and illegal. . It was held that the
defendants were not liable as no "injuria" could be proved because if a person
constructs a building illegally, the demolition of such building by the municipal
authorities would not amount to causing "injuria" to the owner of the property.

Answer to Question No [2017-2(b)]

*Gloucester Grammar school case (1410):

In the case of Gloucester Grammar School, the defendant was a school teacher
in the plaintiff school. Due to some dispute, the defendant left the plaintiff
school and set up a rival school next to the plaintiff. As the defendant was
famous amongst students for his teaching, children from the plaintiff left to join
the defendant school. The defendant was sued for damage caused to the
plaintiff.

It was held that the plaintiff has no remedy for the loss as there were no legal rights
infringed.
In *Bradford corporation (Mayor of) v. Pickles (1895) A.C 87,

Pickle owned land at a higher level than the Broadford Corporation. The defendant
had a natural reservoir from which water flowed to the Broadford Corporation‗s
land. The claimant used this to supply water to local towns. Pickle sought to sink a
well into this natural reservoir (which was his land). This would reduce the flow of
water to Broadford Corporation‗s land.

It was held that the plaintiff has no cause of action since the defendant has been
exercising his lawful rights although his motive was to obstruct the plaintiff to buy
his land.

*In P. Seetharamayya v. Mahalakshmamma, AIR 1958

There were four defendants who tried to divert the flow of water by digging a
trench as well as putting a bund on their lands. The fifth defendant acted
independently put up the bund on his land to divert the flow of water.

As a result of the act of these five defendants, the rainwater now flowed to the
plaintiff's land causing damage to them. The plaintiff requested the mandatory
injunction to demolish the bunds and fill up the trench on the defendant's land.
The High Court of Andhra Pradesh held that the owner of the land has the right
for the protection of his property and when the land is situated on the river has a
right to build the fence to prevent the overflow of water. It is a clear case of
damnum sine injuria where damages occurred to the plaintiff without violation of
any legal rights. Hence the defendants were not liable for the harm caused to the
plaintiff.

Defense against Tortious Liability

 Volenti Non fit Injuria(Defence Of Consent) :

 Scienti non fit injuria
 Rescue case
 Plaintiff as wrongdoer
 Inevitable Accident
 Act of God
 Private Defence
  Mistake
 Necessity
 Statutory Authority
 Unfair Contract Terms Act, !977

(Q) Rescue cases as an exception to the defense of volenti non fit injuria

[2017-1(c)]. (Rescue case)

(Q) C, a four-year-old child attending a nursery school under the
management of M strayed from the premises to a public highway because
the child was temporarily left unattended by the class teacher. L, a lorry
driver saw the child running the middle of the road. He suddenly swerved
the lorry to save the child and in doing so he dashed against a telegraph pole,
and sustained multiple personal injuries.
L sues M for negligence. It was pleaded in defence that though M might
have awed a duty of care to the child, he owed no such duty to L and
therefore the maxim Volenti non fit injuria applied in this case.
Decide. [2018-2] (Rescue Case)

(Q) Due to the negligence of Z, a well was filled with poisonous fumes of petrol
driven pump. Two workmen were trapped in the well. D, a doctor, decided to enter
the well to try and rescue the workers, although he was warned by Z and the by-
standers that this could be dangerous for him. D tied a rope around his waist and
went into the well. The workers were already dead and D was also overcome by
the fumes and died on his way to the hospital. D‗s wife sues Z for damages. Will
she succeed? Decide citing relevant precedents. [2016-3(a)] (Rescuers
case)

(Q) Write a note on the doctrine of consent as a defence in action for a tort.

[2015-2(a)]

(Q) Y, a lady, takes lift from a drunken driver in his car. The driver drives
negligently and causes accident resulting in severe injury to the lady. The
lady sues the driver and claims compensation. Driver claims exemption from
liability and takes defence of the maxim Volenti non fit injuria i.e, the harm
suffered with consent.
 Do you think the lady can succeed in her action? Explain with reference to
essential elements for application of the defence of consent and relevant
court decisions. [2019-3(a)] (Defence of consent case)

(Q) Act of God [2017-1(f)]

(Q) Due to extraordinary winds blowing in he city X, a storage tank
belonging to an enterprises X, containing oleum gas collapsed leading to the
escape of the gas, resulting in the death of two persons and adversely
affecting several others. State the liability of the enterprise in such a
situation. [2018-4(b)] (Acts of God Case)

(Q) Scienti non fit injuria is no defence under the law. Explain with
examples. [2017-3(a)]

(Q) Statutory authority as a defence to tortious liability.[2016-6(b)]

(Q). X hired a car from Y on rent. X and Y entered into a contract. One of
the clauses in the contract stipulated : ―Nothing in this agreement shall render the
owner liable for any personal injuries to the riders of the car hired.
X started driving the car and he had gone hardly one kilometer when the car
dashed against a tree due the defects both in the breaks and the engine. As a
result X sustain personal injuries. In a suit by X against Y, Y relies on the
exemption clause in the contract. X insists for liability for negligence.
How will you decide? (Unfair Contact Terms Act,1977(U.K))[2018-1(b)]

Answer to the Question No [2019-3(a)], [2015-2(a)] :

1. Volenti Non fit Injuria(Defence of Consent):

In the law of torts, there is a duty on every person to acts with reasonable
care in order to avoid any harm which may occur due to their failure of
taking such care. This is the general rule in torts but there are certain
exceptions that are allowed in these cases and these are called defenses to
tort. Under these defenses, a defendant can escape liability and volenti non-
fit injuria is also one such defense that is available for the defendant.
As no man can enforce rights that he has voluntarily given up or
abandon.
Salmond said that ―such consent may be expressed (consent to intentional
act) for example patient submitting for surgical operation or implied (taking
the risk of accidental harm). Implied consent is inferred from the conduct of
Plaintiff. For example spectator in the game of cricket or football is deemed
to be agreeing to any hurt, which may be likely in the normal course of the
game.
*Hall v. Brookland Auto Racing Club(1932);

D was the owner of a racing track for motor cars. Spectators were admitted
on payment to view the races, and stands were provided in which they could
do this in safety, but many persons preferred to stand along and outside the
railing. On the day in question, two competing cars in a long-distance race
on this track were involved in a collision on the finishing straight, with one
of the cars being flung into the air and over the railing, hitting a group of
spectators and killing two of them. No such accident had occurred
previously in the history of the course, which had been running races for
over 20 years. D was sued in negligence by an injured spectator, who
alleged that the premises had not been made adequately safe for spectators,
nor had adequate warning of the dangers been given.
It was held that the plaintiff impliedly took the risk of such injury and the
danger was being inherent to the sports which any spectator could foresee,
the defendant was held not liable. As no accident of this nature had
previously occurred it could not be said to be reasonably foreseeable, and D
was not required to mitigate the risk of an event that no amount of due
diligence would have revealed.

To plead the defence successfully, he should have to prove three things

concurrently:
1. The plaintiff has the knowledge of the risk
2. He fully appreciated the risk
3. And he voluntarily accepted the risk without any compulsion.

Another important thing is that the injury or harm must not go beyond the
limit of consent.

If there are any foul play, willful assault, or negligence on the part of the
defendant then the defense could be defeated.

An essential condition for volenti non fit injuria (defense of consent):

(a) Free consent: it means that consent must not be induced by fraud,
compulsion, coercion, undue influence; mistake, misrepresentation, etc.,
and the consent given for the purpose could not be equated with other
work. The consent must be free and voluntary. If the consent is obtained
by fraud is no consent. In a case, a music teacher obtained consent from
the pupil fraudulently to improve her voice and seduced her. It was held
that the music teacher was liable.
(b) Knowledge: knowledge of danger or risk is not the same thing. Injured
must have aware of the risk and 2ndly he agreed to run the risk of harm.
Mere knowledge of the risk (Scienti non fit injuria) is not enough.
There must be perception, appreciation, and acceptance of the risk.

Answer to the question no [2017-3(a)]

Scienti non fit injuria(Mere knowledge of the risk): Only having
knowledge about the risk is not enough for the application of this
defense, It is known as Scienti non fit injuria, which means that mere
knowledge does mean consent to the risk. Thus having knowledge is only
a partial fulfillment of the condition for the application of volenti non fit
injuria.

*Smith v. Charles Baker & Sons (1891):

The plaintiff was a workman employed by the defendants on working a
drill for the purpose of cutting a rock. With the help of a crane, stones
were being conveyed from one side to the other, and each time when the
stones were conveyed, the crane passed from over the plaintiff's head.
While he
 was busy in his work, a stone fell from the crane and injured him. The
employers were negligent in not warning him at the moment of a
recurring danger, although the plaintiff had been generally aware of the
risk.
It was held by the House of Lords that as there was mere knowledge of
risk without the assumption of it, the maxim volenti non fit injuria did
not apply, and the defendants were liable.

*South Indian Industries Ltd v. Alamelu Ammal AIR 1923

It was held that for the defence of volenti non fit injuria to succeed, there must be
three things to prove, an injured person has knowledge of the danger, he
appreciated it, and voluntarily took part in the risk. In the present case, this does
hold to be true. Hence the defendant held liable.

In this case, the defendant was carrying on the business of breaking cast iron by
dropping a heavyweight on the iron as a result of which the broken piece of cast
iron used to fall a distance of 4 to 5yards. One of the pieces struck the plaintiff
standing at a distance of more than 70 yards. Defendant took the plea of volenti
non fit injuria as the plaintiff was an employee.

It was held that for the defense of volenti non fit injuria to succeed, there must be
three things to prove, an injured person has the knowledge of the danger, he
appreciated it, and voluntarily took part in the risk. In the present case, this does
hold to be true. Hence defense of volenti non fit injuria was defeated and the
defendant held liable.

Limitation/exception to the application of maxim:

(a) Illegal consent

(b) Breach of statutory law
(c) Negligence

*T. C Balakrishan Menon v. T. R. Subramanian (1968) (Negligence)

 During the Pooram celebrations, which were attended by lakhs of people, the
explosion caused by the coconut shell filled with explosive substance
seriously injured the plaintiff. it was held that the explosion was caused due
to the negligence of contractor servants who did not inspect the explosive
properly.
Defendant has taken the defense that the plaintiff was fully aware of the
knowledge of the risk involved, thus the maxim applies.
It was held that the lakhs of people who come to watch the celebration could
not be called that they are voluntarily agreed to the risk. The explosion
occurred due to the negligence of the defendant hence held to be liable.

Answer to the Question No [2017-1(c)], [2018-2],[2016-3(a)] :

(d) Rescue Cases: the rescue doctrine started in 1921 after the case

Wagner v. International railways in New York. The Lawsuit came about

because the international railways allowed train passengers to walk between
train cars while it was moving even though it was dangerous and a
passenger fell through. Wagner voluntarily helped the rider who fell and
was injured while helping. This led to the establishment of Rescue Doctrine
because the defendant was liable for Wagner‗s injury from their negligence.

*Haynes v. Hardwood (1935):

In Haynes v. Hardwood, the defendants‗ servant left two unattended horses in a

public street. A boy threw a stone on the horses due to which they bolted and
created a danger for a woman and other people on the road. So, a constable came
forward to protect them and suffered injuries while doing so. This being a rescue
case so the defense of volenti non fit injuria was not available and the
defendants were held liable.

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

then he will not get any remedy.

Williamer L.J. stated: "It seems to me that, when once it is determined that the act
of the rescuer was the natural and probable consequence of the defendant's
wrongdoing, there is no longer any room for the application of the maxim volenti
non fit
injuria. It would certainly be a strange result if the law were held to penalize to the
courage of the rescuer by depriving him of any remedy."

2. Plaintiff the wrongdoer: There is a maxim ―Ex turpi causa non oritur
actio‖ which says that ―from an immoral cause, no action arises‖.

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

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

3. Inevitable accident: Accident means an unexpected injury and if the

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

Answer to Question No [2017-1(f)]

4. Act of God: Act of God serves as a good defense under the law of torts.
It is also recognized as a valid defence in the rule of ‗Strict Liability‗ in
the case of Ryland‟s v. Fletcher.

The defence of the Act of God and Inevitable accident might look the same but
they are different. Act of God is a kind of inevitable accident in which the natural
forces play their role and causes damage. For example, heavy rainfall, storms,
tides, strike, earthquake, war, riot, etc. the expression ―Force Majeure‖ literally
means superior force or circumstance beyond one‗s control

Two important Essentials are needed for this defence is:

  Natural forces‗ working should be there(like exceptionally heavy rainfall,
storms, tempests, earthquakes, tides, volcanic eruption)
 There must be an extraordinary occurrence and not the one that could be
anticipated and guarded against reasonably.

*Manindra Nath Mukherjee v. Mathuras Chatturbhuj(AIR 1946 Cal 175):

Facts: The defendant is a proprietor of a motion picture exhibition establishment.

The portion of the building which abuts on the street is one-storied. On the roof of
this, overlooking the street, there stands a signboard which is a more or less
permanent structure consisting of a steel frame held firmly in place in an
upstanding position by means of masonry and iron attachments. In this framework,
there is galvanized iron sheeting. The galvanized sheeting covers the whole surface
of the framework.
The defendant obtained a license to erect this signboard from the Calcutta
Municipality. Banners were displayed from the signboard. In this signboard, there
was no contrivance by means of which such banners could be held firmly and
securely in place – no slots, bolts, grooves, flanges, or screws. The banners were
held against the galvanized sheet by means of cheap coir ropes which were
fastened to the four corners of the wooden frame which contained the cloth design,
and these ropes were then carried over and under the metal frame of the signboard,
and knotted to certain angles and iron rods behind. The lower portion of the
wooden frame of the banners did not rest on the ground.

KHUNDKAR. J held that- ―The chief Observer in the Weather Office of the
Meteorological Department testified that on the evening of The 5th July there was
not a great deal of rain and that the velocity of the wind was moderate. This
weather was not uncommon in the monsoon season.
This evidence puts an end to the plea of the act of God. In not taking precautions
against winds which are not unusual during the monsoon months, the defendant‗s
were prima facie negligent, and the fact that the banners fell in a wind which was
not above 27 miles per hour in velocity, goes a long way to discredit all the
elaborate evidence of the defendant regarding the time the banner to the
framework of the signboard buy 3 strands of
new coir wire rope. I cannot believe this evidence, for if it is true, the banner would
not have fallen.‖

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

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

 There should be an imminent threat to a person‗s life or property.
 The force used must be reasonable and to repel an imminent danger
 For the protection of property also, the law has only allowed taking such
measures which are necessary to prevent the danger.

6. Mistake: The mistake is of two types:

 Mistake of law
 Mistake of fact

In both conditions, no defence is available to the defendant.

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

7. Necessity (Jus necessitatis): If an act is done to prevent a greater harm,

even though the act was done intentionally, is not actionable and serves
as a good defence.

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

The following points should be considered:

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

case of private defence the plaintiff is himself a wrongdoer.
  In necessity, the harm is done intentionally whereas in case of an
inevitable accident the harm is caused in spite of making all the efforts to
avoid it.

For example, performing an operation on an unconscious patient just to save his

life is justified.

Answer to Question [2016-6(b)]:

8. Statutory Authority: If an act is authorized by any act or statute, then it

is not actionable even if it would constitute a tort otherwise. It is a
complete defence and the injured party has no remedy except for
claiming compensation as may have been provided by the statute.

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

In Smith v. London and South Western Railway Co, the servants of a railway
company negligently left the trimmings of hedges near the railway line. The sparks
from the engine set fire to those hedges and due to high winds; it got spread to the
plaintiff‗s cottage which was not very far from the line. The court held that the
railway authority was negligent in leaving the grass hedges near the railway line
and the plaintiff was entitled to claim compensation for the loss suffered.

Absolute and conditional authority

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

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

*Ramchandraram Nagram Rice & Oil Mills ltd v. Municipal Commissioner

(AIR 1943)

In the case, the plaintiff had dispatch hundred of canister full of mustard oil to the
Purulia. At the railway station, it was seized by the sanitary inspector and was
loaded in a truck that was used for carrying rubbish and unsanitary things.

Plaintiff alleged that due to reckless behavior of the public servant their impression
suffered in the market and the customer refused to take the canister delivered.

It was also alleged that due to the plaintiff's action he has suffered a huge loss and
has to sell the remaining canister at a much lower price.

It was held that the action of the municipality was unreasonable and that is
negligently caused damage to the plaintiff. There were many other ways to
achieved the objective. But the way the employer handled the canister and loading
them in the truck used for purpose of carrying rubbish caused damages to the
plaintiff. the action of the municipality held to be negligent and hence defendant
held to be liable for the damages.

Answer to Question No: [2018-1(b)]

Unfair Contract Terms Act, 1977 In England, Unfair Contract Terms

Act, 1977 grants protection to the consumer and provides that such a
liability for loss or damage cannot be excluded or restricted by reference
to any contract term or notice contained in or operating by reference to a
guarantee of the goods.
 Sec. 5(1) which incorporates this provision is as under: "In case of goods
of a type ordinarily supplied for private use or consumption, where loss
or damage—
(a) arises from the goods proving defective while in consumer use; and

(b) results from the negligence of a person concerned in the manufacture

or distribution of the goods; liability for the loss or damage cannot be
excluded or restricted by reference to any contract term or notice
contained in or operating by reference to guarantee of the goods."

Consumer Safety Act, 1978 This Act aims at the provision of safe goods
to the consumers. The Act grants the Secretary of State the power to
make such regulations as he considers appropriate to ensure that the
goods supplied to the consumer are safe. Breach of safety regulations
amounts to an offense. A civil action can also lie for the breach of safety
regulations, and any agreement purporting to exclude or restrict such a
civil liability will be void.

There is a need for consumer protection in India too. It is hoped that the
needful will be done by legislation, as in England.

In the case of *Donoghue v. Stevenson; (Manufacturer‟s negligence)

Lord Atkins propounded the following rule:

"You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbor. "

He then defined "neighbor‗s" as "persons 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."

Facts: On 26 August 1928, May Donoghue and a friend were at a café in

Glasgow (Scotland). Donoghue's companion ordered and paid for her drink. The
cafe purchased the product from a distributor that purchased it from Stevenson.
The ginger beer came in a Dark bottle, and the contents were not visible from the
outside. Donoghue drank some of the contents and her friend lifted the bottle to
pour the remainder of the ginger beer into the tumbler. The remains of a snail in a
state of decomposition dropped out of the bottle into the tumbler. She was
unsuccessful at trial and appealed the decision to the House of Lords. Finally, her
claim was successful.

The suit was defended on the following grounds:

1. The defendant did not owe any duty of care towards the plaintiff;
2. That the plaintiff was stranger to the contract.

Duty of Care

The house of lord held that the manufacturer-owned her duty to take care that the
bottle did not contain any contaminated object otherwise he would be labile for the
breach of duty.

According to Lord Atkin: "A manufacturer of products, which he sells in such a

form as to show that he intends them to reach the ultimate consumer in the form in
which they left him with no reasonable possibility of intermediate examination and
with the knowledge that the absence of reasonable care in the preparation or
putting up of the products will result in an injury to the consumer's life or property,
owes a duty to the consumer to take that reasonable care."

That the plaintiff was stranger to the contract:

You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbor. Who, then, in law is
my neighbor? The answer seems to be – 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.

Decision: Defendant should be held liable.

 NEGLIGENCE

(Q) In 1932, Lord Atkin, in the case of Donoghue V. Stevenson formulated a

general principle of liability, known as neighbor principle, by which existence of a
legal duty to take care could be determined, thus effectively inventing the modern
tort of negligence.” [2019-5]

(Q). Aarti went to a surgeon for operation to remove stones from her kidney. The
surgeon Dr. X performed the operation but left a gauze piece in the abdominal
cavity during operation. Peritonitis developed which led to a second surgery being
performed on her. She sues Dr. X for negligence. Dr. X pleads volenti non fit
injuria. Decide with the help of relevant case law. [2017-7] (Medical Negligence)
(Q). "...... a medical practitioner was not to be held liable simple because things went
wrong from the mischance or misadventures or through an error of judgement in
choosing one reasonable course of treatment in preferences of another. " Elucidate this
observation of Lord Denning with respect to medical negligence cases. 2015(7(b))].
(Q). Discuss the applicability of the Consumer Protection Act,1986 to cases of medical
negligence in India. Also explain, with the help of landmark cases in India, the tests
for determining medical negligence, highlighting the Shift from the Bolam Tests to
Bolitho test.[2016(7)].

Definition :
Negligence is the breach of a duty caused by the omission to do something which a
reasonable and prudent man would not do. In other words we can say that when
someone failure to take proper care while performing his duty he may have
breached the duty of care which would have causes damages to the plaintiff.

According to Winfield. ―Negligence as a tort is a breach of a legal duty to take care

which results in damages, undesired by the defendant to the plaintiff‖.

Plaintiff has to prove the following grounds for negligence:

1. The That the defendant owed duty of care to the plaintiff;

2. The defendant made a breach of that duty;
3. The plaintiff suffered damage as a consequence thereof.
 Answer to The Question No [2019-5]:

Duty of Care to the plaintiff:

A merely moral and religious duty will not be sufficient to prove the negligence
there must be some breach of legal duty the defendant owe to the plaintiff.

In Le Lievre v. Gould Case

Lord Esher says: ―That case established that, under certain circumstances, one
man may owe a duty to another, even though there is no contract between them. If
one man is near to another, or is near to the property of another, a duty lies upon
him not to do that which may cause a personal injury to that other, or may injure
his property‖.

So A.L. Smith L.J.: ―The decision

of Heaven v. Pender was founded upon the principle, that a duty to take due care
did arise when the person or property of one was in such proximity to the person
or property of another that, if due care was not taken, damage might be done by
the one to the other.‖

It is one of the essential conditions of negligence in order to make the person liable.
It means that every person owes, a duty of care, to another person while performing an
act. Although this duty exists in all acts, but in negligence, the duty is legal in nature and
cannot be illegal or unlawful and also cannot be of moral, ethical or religious nature.

In the case of Stansbele vs. Troman(1948),

A decorator was engaged to carry out decorations in a house. Soon after The decorator
left the house without locking the doors or informing anyone. During his absence, a thief
entered the house and stole some property the value of which the owner of the house
claimed from the decorator. It was held that the decorator was liable as he was negligent
in leaving the house open and failed his duty of care.
And the duty means restriction on the part of the defendant conduct of business so
that he could not transgress the legal rights of the others it means that they must
have to behave as reasonable and prudent man have done.

In the case of *Donoghue v. Stevenson; (Manufacturer‟s negligence)

Lord Atkins propounded the following rule:

"You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbor. "

He then defined "neighbors" as "persons 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."

Facts: On 26 August 1928, May Donoghue and a friend were at a café in Glasgow
(Scotland). Donoghue's companion ordered and paid for her drink. The cafe
purchased the product from a distributor that purchased it from Stevenson. The
ginger beer came in a Dark bottle, and the contents were not visible from the
outside. Donoghue drank some of the contents and her friend lifted the bottle to
pour the remainder of the ginger beer into the tumbler. The remains of a snail in a
state of decomposition dropped out of the bottle into the tumbler. She was
unsuccessful at trial and appealed the decision to the House of Lords. Finally, her
claim was successful.

The suit was defended on the following grounds:

3. The defendant did not owe any duty of care towards the plaintiff;
4. That the plaintiff was stranger to the contract.

Duty of Care
The house of lord held that the manufacturer-owned her duty to take care that the
bottle did not contain any contaminated object otherwise he would be labile for the
breach of duty.

According to Lord Atkin: "A manufacturer of products, which he sells in such a

form as to show that he intends them to reach the ultimate consumer in the form in
which they left him with no reasonable possibility of intermediate examination and
with the knowledge that the absence of reasonable care in the preparation or
putting up of the products will result in an injury to the consumer's life or property,
owes a duty to the consumer to take that reasonable care."

That the plaintiff was stranger to the contract:

You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbor. Who, then, in law is
my neighbor? The answer seems to be – 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.

It was held that in the case of Heaven v. Pender which was taken as reference in
explaining the duty of care towards the stranger.

―That case established that, under certain circumstances, one man may owe a duty
to another, even though there is no contract between them. If one man is near to
another or is near to the property of another, a duty lies upon him not to do that
which may cause a personal injury to that other or may injure his property.

Duty depends upon the foreseeability of injury:

Whether the person owes a duty of care to others depends upon the reasonable
foreseeability of the injury to the plaintiff. If any act or omission considered by the
defendant could harm the plaintiff if he does not take care of them, in that case,
there is certainly its duty of the defendant to perform an act or omit omission
otherwise defendant could be liable for the damage he could have caused to the
plaintiff.

Lord Macmillan observed in the case of Glasgow Corporation v. Muir, that the
The standard of foresight of a reasonable man depends upon person to person and
cases to cases. Some people are by the nature unduly timorous who could see every
possible path and on the other hand, some of the more robust temperaments, fail to
foresee even the most obvious danger. The reasonable man presumed to be free
from both over apprehension and overconfidence. It should be left to the judge to
decide particular circumstances which should be considered as reasonable
foreseeability.

Breach of duty:

*Municipal Corporation of Delhi v. Subhagwanti AIR 1966 SC 1750

Three suits for damages were filed by the respondents as heirs of three persons
who died as a result of the collapse of the Clock Tower in Chandni Chowk, Delhi,
belonging to the appellant-Corporation, formerly the Municipal Committee of
Delhi.

The building was 80 years old and the life of the structure of the top storey, having
regard to the type of mortar used, could be only 40 to 45 years and the middle
storey could be saved for another 10 years. The collapse of the Clock Tower was
due to the thrust of the arches on the top portion. If an expert had examined this
building specifically for the purpose he might have found out that it was likely to
fall.

The High Court held that the principle of res ipsa loquitur is applied to the case.

RES IPSA LOQUITUR (Proof of Negligence): it means a thing to speak for itself.

As a rule, the onus of proving negligence lies on the plaintiff. He must not merely
establish the facts of the defendant‗s negligence and his own damage, but also to
prove other things happen due to the occurrence of the first one.

However, there are certain cases when the plaintiff needs not to prove but
inference could be drawn from the facts. If the facts speak themselves that the
incident could have been avoided if the defendant had not been negligent. In that
case onus to
prove negligence shifted from the plaintiff to the defendant. The defendant
can, however, avoid his liability by a rebuttal of the presumption of
negligence.

In the above case, the apex court held that the High court was right in applying
the doctrine of res ipsa loquitur. That the fall of the clock tower tells its own
story in the part of negligence from the defendant's side. It was a corporation's
duty to inspect the clock tower from time to time. Since the defendant could not
prove the absence of negligence on their part they were held liable.

A clear case of Medical Negligence similar to Res Ipsa Loquitor :

An appellant doctor was found by the State Commission to be responsible for
leaving ribbon gauze on the right side of the nose after a septoplasty resulting in
several complications. The complainant suffered and had to be under treatment all
the while the National Commission confirmed the order and observed that it has no
option but to deduce that it was a clear case of medical negligence on the part of
the appellant. The National Commission in the case of Dr. Ravishankar vs. Jery
K. Thomas and Anr, II (2006) CPJ 138 (NC) held that based on the facts and
circumstances, the obvious deduction is that the appellant doctor is responsible for
leaving behind ribbon gauze resulting in complications. Medical negligence was
proved.

No liability when injury not foreseeable

*Rajkot Municipal corporation v. Munjulben Jayantilal Nakum(1997) :

The admitted facts are that the deceased Jayantilal was residing in Padadhri. He
used to daily come on a railway season ticket to Rajkot to attend to his office work.
On March 25, 1975, while he was walking on the footpath on way to his office, a
road-side tree suddenly fell on him as a result of which he sustained injuries on his
head and other parts of the body and later died in the hospital.

The tortious liability falls into one of the three categories, viz.,
(a). Some intentional wrongdoing
(b). Negligence ad
(c). Strict liability.
In this case, we are concerned with negligence on the part of the appellant-
Corporation in maintaining the trees on the roadsides.

The conditions in India have not developed to such an extent that a Corporation
can keep constant vigil by testing the healthy condition of the trees in the public
places, road-side, highway frequented by passers-by.
There is no duty to maintain regular supervision thereof, though the local
authority/other authority/owner of a property is under a duty to plant and maintain
the tree. The causation for an accident is too remote. Consequently, there would
be no Common Law right to file suit for the tort of negligence. It would not be just
and proper to fasten the duty of care and liability for omission thereof. It would be
difficult for the local authority etc. to foresee such an occurrence. Under these
circumstances, it would be difficult to conclude that the appellant has been
negligent in the maintenance of the trees planted by it on the road-sides.

Defense of negligence:

1. Vis major or Act of God

2. Inevitable accident

3. Contributory Negligence on the part of the plaintiff

4. Volenti non fit injuria

Act of God: Professor Winfield‗s book, which, at the expense of repetition, I

would quote again: ―an operation of natural forces so unexpected that no human
foresight or skill could reasonably be expected to anticipate it.‖

Inevitable accident: there is a certain kind of incident which could not

be prevented.

For example When A riding motor-car round a bend in the road, a sheet of
newspaper blown by the wind against the windscreen, and person B lying drunk on
the side of the road. It would be impossible for person A to save him. Here, person
B cannot succeed, it is a case of inevitable accident.
Contributory Negligence: when an accident occurred due to the negligence of the
plaintiff himself. When a person is injured due to his own negligence will not able
to get damages from another person. There is a presumption that a reasonable
person could take care of himself.

Volenti non fit injuria: No injury is done to one who consents; Everyone is the
best judge of his own interest and therefore the one who voluntarily agreed to
suffer harm is not allowed to complain about that.

Medical Negligence:

A patient generally approaches a doctor/hospital based on his/her reputation.

Expectations of a patient are two-fold: doctors and hospitals are expected to
provide medical treatment with all the knowledge and skill at their command and
secondly they will not do anything to harm the patient in any manner either
because of their negligence, carelessness, or reckless attitude of their staff. Though
a doctor may not be in a position to save his patient's life at all times, he is
expected to use his special knowledge and skill in the most appropriate manner
keeping in mind the interest of the patient who has entrusted his life to him.
Therefore, it is expected that a doctor carries out the necessary investigation or
seeks a report from the patient. Furthermore, unless it is an emergency, he
obtains the informed consent of the patient before proceeding with any major
treatment, surgical operation, or even invasive investigation. Failure of a doctor
and hospital to discharge this obligation is essentially a tortious liability.

A tort is a civil wrong (right in rem) as against a contractual obligation (right in

personam) – a breach that attracts judicial intervention by way of awarding
damages. Thus, a patient's right to receive medical attention from doctors and
hospitals is essentially a civil right.

In the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole
and Anr., AIR 1969 SC

(a) Duty of care in deciding whether to undertake the case,

(b) Duty of care in deciding what treatment to give, and

(c) Duty of care in the administration of that treatment.

A breach of any of the above duties may give a cause of action for negligence and
the patient may on that basis recover damages from his doctor.

In the aforementioned case, the apex court inter alia observed that negligence has
many manifestations – it may be active negligence, collateral negligence,
comparative negligence, concurrent negligence, continued negligence, criminal
negligence, gross negligence, hazardous negligence, active and passive negligence,
willful or reckless negligence, or negligence per se.

Quark as a doctor: The Supreme Court held that a person who does not have
knowledge of a particular system of medicine but practices in that system is a
quack. Where a person is guilty of negligence per se, no further proof is needed.

Coverage of doctors and Hospitals under Consumer Protection Law 1986:

In this group of cases, we are not concerned with goods, we are only concerned
with the rendering of services. Since the Act gives protection to the consumer in
respect of service rendered to him, the expression ‗service‗ in the Act has to be
construed keeping in view the definition of ‗consumer‗ in the Act. It is, therefore,
necessary to set out the definition of the expression ‗consumer‗ contained in
section 2(1)(d) insofar as it relates to services and the definition of the expression
‗service‗ contained in section 2(1)(o) of the Act. The said provisions are as
follows—

“2. (1)(d) „consumer‟ means any person who,—

(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 service 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.
“2. (1)(o) „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, the supply of electrical or other
energy, board or lodging 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 of ‗service‗ in section 2(1)(o) of the Act can be split up into three
parts- the main part, the inclusionary part, and the exclusionary part. The main
part is explanatory in nature and defines service to mean service of any
description which is made available to the potential users. The inclusionary part
expressly includes the provision of facilities in connection with banking,
financing, insurance, transport, processing, the supply of electrical or other
energy, board or lodging or both, housing construction, entertainment,
amusement, or the purveying of news or other information. The exclusionary part
excludes rendering of any service free of charge or under a contract of personal
service.

Hence, it could be concluded that patient is a ―consumer” and the medical

profession is ―services‖ under the consumer protection Act 1986 and if the patients
aggrieved by the deficiency in treatment from both private clinics and
government hospitals(not free of charge) are entitled to seek damage under
CPA 1986.

In complicated cases that require excellence of service and infrastructure, the

complaint may be asked to approach the civil court for medical negligence. Cases
in which there are no complicated cases involved Forum can give redressal to an
aggrieved consumer on the basis of summary trial and affidavits.

Answer to Question No [2017-7]

*Pinnamaneni Narasimha Rao v. Gundavarapu Jayaprakasu AIR 1990:

Facts: The plaintiff was admitted to the government hospital, Guntur for a minor
ailment-chronic nasal discharge, and the 2nd defendant Dr. P. Narsimha Rao,
E.N.T surgeon who performs the tonsillectomy operation. The 3rd defendant Dr. S.
Shankar Rao was the chief Anesthetist of the hospital. The 1st defendant is the
government of Andhra Pradesh represented by the Collector of Guntur. After the
operation plaintiff was kept in the E.N.T ward of the hospital. For the next three
days he did not regain consciousness and thereafter for another fifteen days he was
not able to speak coherently. It's after, he was discharged from the hospital and his
condition at the time of discharge was that he was just able to recognize the person
around and utter a few words. He could not even read or write numerals. He lost all
the knowledge and the learning acquired by him. He was a brilliant youngster aged
1 year who passed the P.U.C examination with 100% in Mathematics and 93.5% in
physical science and was the state government merit scholar getting a monthly
scholarship.

Failure to conform to the required standard of care resulting in material injury is

actionable negligence if there is a proximate connection between the
defendant‗s conduct and the resultant injury. A surgeon or anesthetist will be
judged by the standard of an average practitioner of class to which he belongs or
holds himself out to belong. In the case of specialists, a higher degree of skill is
called.

The duties which a doctor owes to his patient are clear. A person who holds
himself out ready to give medical advice and treatment impliedly undertakes that
he is possessed of skill and knowledge for the purpose. Such a person when
consulted by a patient owes him certain duties viz. a duty of care in deciding
whether to undertake the case, a duty of care in deciding what treatment to give, or
a duty of care in the administration of that treatment. A breach of any of these
duties gives a right of action for negligence to the patient. The practitioner must
bring to his task a reasonable degree of skill and knowledge and must exercise a
reasonable degree of care.

Damages are awarded for pecuniary loss and non-pecuniary loss. Pecuniary loss, a
called ‗special damages‗ must be pleaded and proved. Loss of earnings, expenses
incurred for treatment as a result of the accident, and future pecuniary loss fall
under the head ‗special damage‗. Damages awarded under the head non-pecuniary
loss are also called ‗general damages‗.

Non-pecuniary loss is of three kinds; (1) pain and suffering (2) loss of amenities of
life, and (3) shortened expectation of life. Damage has been awarded accordingly.

Answer to question no [2017-7]

The defendant is liable for the damages caused to the plaintiff. The concept of
volenti non fit injuria could not be applied here. A clear case of medical negligence
falls under the
category of Res ipsa loquitor where the defense is on the defendant to rebuttal the
presumption of negligence. Here the defense of volenti non fit injuria would not
save the doctor from the damages.

*Jacob Mathew v. State of Punjab (2005):

Facts: Ashok Kumar Sharma, the informant‗s father, late Jiwan Lal Sharma was
admitted
as a patient in a private ward of CMC Hospital, Ludhiana. On 22-2-1995 at about
11 p.m., Jiwan Lal felt difficulty in breathing. The complainant‗s elder brother,
Vijay Sharma who was present in the room contacted the duty nurse, who in her
turn called some doctor to attend to the patient. No doctor turned up for about 20 to
25 minutes. Then, Dr. Jacob Mathew, the appellant before us, and Dr. Allen Joseph
came to the room of the patient. An oxygen cylinder was brought and connected to
the mouth of the patient but the breathing problem increased further. The patient
tried to get up but the medical staff asked him to remain in bed. The oxygen
cylinder was found to be empty. There was no other gas cylinder available in the
room. Vijay Sharma went to the adjoining room and brought a gas cylinder
therefrom. However, there was no arrangement to make the gas cylinder functional
and in-between; 5 to 7 minutes were wasted. By this time, another doctor came
who declared that the patient was dead.

In Dr. Suresh Gupta's case: For this act of negligence he may be liable in tort
but his carelessness or want of due attention and skill cannot be described to be so
reckless or grossly negligent as to make him criminally liable.

The essential components of negligence, as recognized, are three: ―duty‖, ―breach‖

and ―resulting damage‖, that is to say:
(1) the existence of a duty to take care, which is owned by the defendant to
the complainant;
(2) the failure to attain that standard of care, prescribed by the law, thereby
committing a breach of such duty; and
(3) damage, which is both causally connected with such breach and recognized
by the law, has been suffered by the complainant.

Negligence - as a tort and as a crime

Generally speaking, it is the amount of damages incurred that is determinative of
the extent of liability in tort; but in criminal law, it is not the amount of damages
but the amount and degree of negligence that is determinative of liability. To fasten
liability in criminal law, the degree of negligence has to be higher than that of
negligence enough to fasten liability for damages in civil law. The essential
ingredient of mens rea cannot be excluded from consideration when the charge in
a criminal court consists of criminal negligence.

Simple lack of care such as will constitutes civil liability is not enough. For
purposes of the criminal law, there are degrees of negligence, and a very high
degree of negligence is required to be proved before the felony is established.

Three-judge bench (bench strength in Dr. Suresh Gupta was two) in Jacob
Mathew v. the State of Punjab on a reconsideration endorsed the approach of the
high degree of negligence being the prerequisite for fastening criminal liability as
adopted in Dr. Suresh Gupta, and it was observed that in order to hold the
existence of criminal rashness or criminal negligence, it shall have to be found out
that the rashness was of such a degree as to amount to taking a hazard knowing
that the hazard was of such a degree that injury was most likely imminent.
Supreme Court in Jacob Mathew observed that the subject of negligence in the
context of the medical profession necessarily calls for a treatment with a
difference. In this case, an aged patient in an advanced stage of terminal cancer
was experiencing breathing difficulties, and the oxygen cylinder connected to the
mouth of the patient was found to be empty. By the time replacement could be
made, the patient had died. Supreme Court set aside the judgment of the High
Court and held that the doctors could not be criminally prosecuted.

Medical professionals in criminal law:

Section 88 in the Chapter on General Exceptions provides an exemption for acts

not intended to cause death, done by consent in good faith for a person‗s benefit.
Section 92 provides for an exemption for acts done in good faith for the benefit
of a person without his consent though the acts cause harm to the person and that
person has not consented to suffer such harm. There are four exceptions listed in
the section which are not necessary for this context to deal with. Section 93
saves from criminality certain communications made in good faith.

Bolan Test:
Bolam v. Friern Hospital Management Committee,

"Where you get a situation which involves the use of some special skill or
competence, then the test .... is the standard of ordinary skilled man exercising and
professing to have that special skill. A man need not possess the highest expert
skill; it is well-established law that it is sufficient if he exercises the ordinary
skill of an ordinary competent man exercising that particular art...

―Neither the very highest nor a very low degree of care and competence judged in
the light of the particular circumstances of each case is what the law requires,‖ as
the standard of care from a doctor. It has been held by the courts that in the cases
of medical negligence, the Bolam test is to be applied, i.e., ―the standard of the
ordinary skilled man exercising and professing to have that special skill,‖ and
not of

―the highest expert skill.‖ This is applicable to both ―diagnosis‖ and ―treatment.‖

*Malay Kumar Ganguly [Link] Mukherjee AIR 2010 SC :

The patient (Anuradha) and her husband Dr. Kunal Saha (for short, "Kunal") were
settled in the United States of America. Anuradha, a Child Psychologist by
profession, was a recent graduate from a prestigious Ivy League School
(`Columbia University' in the New York State). Although a doctor by profession,
Kunal has been engaged in research on H.I.V/ AIDS for the past 15 years.
They left the U.S.A. for a vacation to India on 24th March 1998. They arrived in
Calcutta on 1st April 1998. While in Calcutta, Anuradha developed fever along
with skin rash on 25th April 1998. On 26th April, Dr. Sukumar Mukherjee,
Respondent No. 1 herein attended and examined Anuradha at her parental
residence on a professional call. Dr. Mukherjee assured the patient and her
husband of a quick recovery and advised her to take rest but did not prescribe her
any specific medicine. However, two weeks thereafter, i.e., on 7th May 1998, the
skin rash reappeared more aggressively. Dr. Mukherjee was again contacted and as
per his instructions, Anuradha was taken to his chamber. After examining
Anuradha, Dr. Mukherjee prescribed a Depomedrol injection of 80 mg twice daily
for the next three days. Despite the administration of the said injection twice daily,
Anuradha's condition deteriorated rapidly from bad to worse over the next few
days. Accordingly, she was admitted at the Advanced Medicare Research Institute
(AMRI) on the morning of 11th May 1998 under Dr. Mukherjee's supervision.
Anuradha was also examined by Dr. Baidyanath Halder, Respondent No. 2 herein.
Dr. Halder found that she had been suffering from Erithima plus blisters. Her
condition, however, continued to deteriorate further. Dr. Abani Roy Chowdhury,
Consultant, Respondent No. 3 was also consulted on 12th May 1998. On or about
17th May 1998, Anuradha was shifted to Breach Candy Hospital, Mumbai as her
condition further deteriorated severely. She breathed her last on 28th May 1998.

Civil Liability under tort law as also under the consumer protection Act 1986

In this case, we are concerned with the extent of negligence on the part of the
doctors, if any, for the purpose of attracting rigours of Section 304A of the Indian
Penal Code as also for attracting the liability to pay compensation to the appellant
in terms of the provisions of the Consumer Protection Act, 1986.

In this regard, it would be imperative to notice the views rendered in

Jacob Mathew v. the State of Punjab,

(i) Mere deviation from normal professional practice is not necessarily

evidence of negligence.
(ii) The mere accident is not evidence of negligence
(iii) An error of judgment on the part of a professional is not negligence
per se.
(iv) Simply because a patient has not favorably responded to a treatment
given by a physician or a surgery has failed, the doctor cannot be held
liable per se by applying the doctrine of res Ipsa loquitor.

Rights of the patient to be informed

The patients by and large are ignorant about the disease or side or adverse effect of
a medicine. Ordinarily, the patients are to be informed about the admitted risk, if
any. If some medicine has some adverse effect or some reaction is anticipated, he
should be informed thereabout. It was not done in the instant case.

Individual Liability of the doctors :

There cannot be, however, by any doubt or dispute that for establishing medical
negligence or deficiency in service, the courts would determine the following:
(i) No guarantee is given by any doctor or surgeon that the patient would be cured.

(ii) The doctor, however, must undertake a fair, reasonable, and competent
degree of skill, which may not be the highest skill.
(iii) Adoption of one of the modes of treatment, if there are many, and treating the
patient with due care and caution would not constitute any negligence.
(iv) Failure to act in accordance with the standard, reasonable, competent medical
means at the time would not constitute negligence. However, a medical practitioner
must exercise the reasonable degree of care and skill and knowledge which he
possesses. Failure to use the due skill in diagnosis with the result that wrong
treatment is given would be negligence.
(v) In a complicated case, the court would be slow in contributing negligence on
the part of the doctor, if he is performing his duties to be the best of his ability.

Assessing Criminal Culpability Under Section 304-A

Criminal Medical Negligence is governed by Section 304A of the Indian Penal
Code. Medical science is a complex science. Before an inference of medical
negligence is drawn, the court must hold not only the existence of negligence but
also omission or commission on his part upon going into the depth of the working
of the professional as also the nature of the job. The cause of death should be
direct or proximate. A distinction must be borne in mind between a civil action
and the criminal action.

Law of Negligence under tort law

Negligence is the breach of a duty caused by the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs would do or doing something which a prudent and
reasonable man would not do.

Bolitho v. City and Hackney Health Authority (Bolitho Test)

"The court is not bound to hold that a defendant doctor escapes liability for
negligent treatment or diagnosis just because he leads evidence from a number of
medical experts who are genuinely of opinion that the defendant's treatment or
diagnosis accorded with sound medical practice. The use of these adjectives -
responsible, reasonable and respectable – all show that the court has to be satisfied
that the exponents of the body of opinion relied upon can demonstrate that such
opinion has a logical basis. In particular, in cases involving, as they so often do,
the weighing of risks against benefits, the judge before accepting a body of
opinion as being responsible, reasonable and respectable, will need to be satisfied
that, informing their views, the experts have directed their minds to the question of
 comparative risks and benefits and have reached a defensible conclusion on the
matter."

Conclusion:
In view of our discussions made hereinbefore, we are of the opinion that for the
death of Anuradha although Dr. Mukherjee, Dr. Halder, Dr. Abani Roy
Chowdhury, AMRI, Dr. B. Prasad were negligent, the extent thereof and keeping
in view our observations made hereinbefore, it cannot be said that they should be
held guilty for commission of an offense under Section 304-A of the Indian Penal
Code.

Nervous Shock

(Q) " The crude view that the law should take cognizance only of physical injury
resulting from actual impact has been discarded, and it is recognized that an action will
lie for injury by shock sustained through the medium of the eye or the ear without direct
contact." Elucidate with proper case law. [2015(6(a))]
(Q). Explain the law on recovery of damages by primary and secondary victims in
nervous shock cases with the help of decided cases. [2015(6(b))]

(Q ) Trace the development of law relating to Nervous Shock.

C, a fourteen year old child, was riding a bicycle. Suddenly, he lost his balance and fell
on the road. C was crushed under a car coming from behind, as the driver of the car (D)
failed to apply brakes immediately. C was taken to a nearby hospital where he was
declared brought dead. N a neighbor of C, saw the accident and sustain nervous shock.
C's mother 'M' was informed about the accident on phone. She reached the hospital an
hour later and saw C's badly mutilated dead body, as a result of which she sustain
nervous shock. Discuss the liability of D for the nervous shock sustained by N and M.
[2016(2)]

(Q). A, a child was playing a football game for his school. The game was viewed by
friends and relatives by a special relay of CCTV both in stadium as well as home. The
stadium authorities did not check the alarm system and fire exits of the stadium. Due to
some wiring defects the front sitting area of the stadium caught fire. C was another child
playing the game from the opposite side. To C's mother, present at the stadium, it
appeared from a distance that her child was consumed by fire. She suffered nervous
shock. He was however rescued. Meanwhile A' s father had watched the game from
CTV, who in turn informed A's mother. When she reached the hospital and saw her
injured child she received nervous shock. Decide the case for C and A while tracing the
law relating to Nervous Shock. [2017(4)]

(Q). Discuss the development of the law relating to Nervous shock.

C, a child of 12 years was riding a cycle while returning from a nearby market. On
seeing some dogs fighting he lost the balance and fell down. D, the driver of a car saw C
falling but did not immediately apply the brakes, as a result of which the car ran over C.
C was immediately taken to the hospital where he was
declared dead. A bystander who had been at the scene of accident informed M, Mother
of C, who was about 1.5 kilometer away from the scene of the accident. M was taken to
the hospital within an hour where she saw the dead body of her child. As a result M,
suffered severe and persisting nervous shock. M sues D for damages for Nervous Shock.
D contends that, nervous shock suffered by her was not a reasonably foreseeable
consequence of his negligence. Decide with the help of case law. [2018(3)]

(Q). Test of Reasonable foresight. [2017(1(b))]

Introduction

Nervous shock is that branch of law which is nascent and still developing. If a person
has got injury through his senses i.e., by his visual or acoustic senses it comes under the
category of nervous shock.

The rationale behind is that the body is controlled by its nervous system and if by reason
of an acute shock to the nervous system the activities of the body are impaired and it is
prevented from functioning normally, there is a clear ―bodily injury‖.

The nervous shock may be caused by words or act of the defendant. It may be induced
by some accident due to the defendant‘s negligence or on account of a false statement
willfully made or due to intimidation (intentional wrongdoing). In such a case, the
question is whether the shock and illness are in fact the natural and direct consequences
of the wrongful act or default; if they are, the illness, and not the shock, furnishes the
measurable damage.
The plaintiff could suffer nervous shock by witnessing (seeing or hearing) personal
injury (or an accident) or destruction of his property caused by the defendant‘s wrongful
act. Under the cases of nervous shock, the plaintiff has to prove the following things:

(i) He has to show the necessary chain of causation between his psychiatric illness
(nervous shock) and the death or injury of one or more third parties caused by the
defendant‘s wrongful act. Physical injury is not necessary.
(ii) The plaintiff need not be in the area of physical injury to himself, it is enough that
he is so placed that a shock could be caused to him by his seeing or hearing
something.
In other words, the plaintiff must be so placed where injury through nervous
shock can be foreseen by a reasonable man (Bourhill v Young 1943 A.C. 92)
(iii) The plaintiff will have to show close relationship of love and affection with the
primary victim and also that his proximity to the accident was sufficiently close in
time and space.
(iv) Damages for nervous shock were not limited to psychiatric damage resulting from
witnessing personal injury, but could be recovered where the plaintiff witnessed
destruction of his property caused by the defendant‘s wrongful act [Attia v
British Gas Plc. (1987) 3 All ER 455],

Victorian Railway Commissioners v. Coultas, (1888) 13 App Cas 222.-

In this case, the appellant's gate-keeper negligently invited the plaintiff and his
wife, who were driving in a buggy, to enter the gate at a railway crossing when
the train was approaching. The distance between buggy and train was very narrow
and actual collision did not take place, but seeing the danger from so close, the
lady got fainted and suffered a severe nervous shock resulting in illness and
miscarriage.
The Privy Council held that
"damage arising from mere sudden terror unaccompanied by any physical injury
but occasioning a nervous or mental shock cannot under such circumstances be
considered a consequence which in the ordinary course of things would flow from
negligence of the gate-keeper". And in this case it was held that the damage was
too remote to be recovered since there was no actual bodily impact.

But this view was changed later on when it was held in the case Dulieu v. White,
(1901) 2 KB 669, that to take cognizance of only physical injury resulting from
actual impact is to be discarded on the ground that the nervous shock
accompanied by definite illness is as much a physical injury as a broken bone or
torn flesh wound.
Dulieu v. White, (1901) 2 KB 669.-
The plaintiff, a pregnant woman, was standing behind the bar of her husband's
public house, and the defendants by their servants, negligently drove a pair of
horse van into that house. The plaintiff was physically
not hurt but suffered nervous shock. She fell ill and delivered a prematured baby.

Defendant's plea was that there is no action since plaintiff did not suffer any
physical injury.
But, Kennedy J., held the defendant liable and said-
"........merely mental pain unaccompanied by any injury to the person cannot
sustain an action for negligence. If the fear is proved to have naturally and
directly produced physical effects, so that the ill results of the negligence which
caused the fear are as measurable in damages as the same results would be if they
arose from an actual impact, why should not an action for those damages lie just
as well as it lies where there has been an actual impact".

Justice Kennedy also introduced a limitation of liability by stating that the shock
where it operates must be a shock which arises from a reasonable fear of
immediate personal injury to oneself.

In Dulieu's, the principle laid down in Victorian Railway Commissioners' case as

the damage due to nervous shock is too remote a consequence for recovery was
put to rest.
Justice Kennedy held that the defendant's negligence would make him liable if
the natural and direct consequence is nervous shock followed by illness, subject to
the condition that the shock must have been due to reasonable fear of one's own
safety.

Hambrook v. Stokes Bros, (1925) 1 KB 141.-In this case, the defendant's

servant left a motor lorry unattended at the top of street with its engine running.
Somehow, lorry started running on the street violently. Mrs. Hambrook, was
walking on the street, and her children had just parted with her and were gone in
the direction where now lorry was approaching. She got frightened for safety of
her children. One of the passer by informed her that one child similar to
description given by her has got injured. After hearing this news she suffered a
serious nervous shock and she died. The plaintiff's plea was that the defendant
was negligent in leaving the lorry unattended and running.
Mrs. Hambrook suffered nervous shock either due to reasonable fear of
immediate personal injury to her or her children and she died.
Defence plea was that although the servant of defendant was negligent, but the
shock was due to fear of her children and it did not give rise to a cause of action.

Trial court taking the view of Dulieu case, applied the limitation put forth by J.,
Kennedy and found that Mrs. Hambrook died due to fright for the safety of her
children and defendant was not liable.

On appeal, Bankes and Atkin [Link]., rejecting, the limitation proposed by

J., Kennedy in Dulieu case held that the defendant was liable for her death-

"Accepting the line of reasoning illustrated by authorities, it follows that what a

man ought to have anticipated is material when considering the extent of his duty.
Upon the authorities as they stand the defendant ought to
have anticipated that if his lorry ran away down this narrow street, it might terrify
some woman to such an extent, through fear of some immediate bodily injury to
herself, that she would receive such a mental shock as
would injure her health."

Justice Bankes imposed a limitation by stating that "the defendant would be liable
only if the shock resulted from what Mrs. Hambrook either saw or realized by her
own unaided senses, and not from something which
some one told her".

It was also noted in this case that there was an acceptance of negligence in the
pleadings, and this meant that the breach of a duty owed to Mrs. Hambrook was
admitted by the defendant. That is why it was not necessary for the court to
consider the circumstances in which a duty of care exists in cases of nervous
shock.

Bourhill (or Hay) v. Young (1943) A.C.92

In this case, a motor cyclist, while negligently driving at an excessive speed,

collided with a motor-car and was killed. The plaintiff, a fish-wife, standing about
45 feet from the point of impact heard the noise although she did not see the
accident.
After the body of the motorcyclist had been removed the fishwife happened to go
to the scene of the accident and saw the blood on the road. She suffered fright
resulting in severe nervous shock. At that time she was eight months pregnant and
about a month later the child was stillborn, owing to the injuries sustained by her.
She sued the personal representatives of the motorcyclist.
The House of Lords observed that ―the crude view that the law should take
cognizance only of physical injury resulting from actual impact has been
discarded. It is now well recognized that an action will lie for injury by shock
sustained through the medium of the eye or ear without direct contact.‖
In the present case, however, the deceased could not be expected to foresee any
injury to the plaintiff and, therefore, he did not owe any duty of care to her and as
such his personal representatives could not be made liable. The duty of the
motorcyclist on the public road to other persons using it was to drive with such
reasonable care as would avoid the risk of injury (including injury by nervous
shock) to such persons as he could reasonably foresee might be injured by his
failure to exercise that care. The plaintiff was not within the area of potential
danger arising as the result of his negligence and, accordingly, he owed no duty of
care to her.

The court stated that ―a man is not negligent in the air‖. The duty only arises
towards those individuals of whom it may be reasonably anticipated that they will
be affected by the act which constitutes the alleged breach. In the present case, the
plaintiff was not involved in the accident and she even did not see the accident,
being far away from it. The motorcyclist could be held to be negligent only with
the occupants of the motor car or any person near or about the place of accident.

King v. Philips, (1953) KB 433.-

A small boy, Michael Charles King was on his tricycle on Bristall Road, London.
A taxicab driver while backing his cab hit the tricycle. The mother of the child,
who was inside her house some 70 to 80 yards away, heard boy's scream, she
came out and saw tricycle of his son under the taxicab, but the child was not there
who came to home with slight injury. The lady suffered nervous shock followed
by illness, for which she claimed damages.

The lower court awarded damage only to boy and rejected the claim of his
mother. The Court of Appeal also upheld the decision of the lower court and held
that the defendant owed a duty of care to the boy and not to the
mother.

Observation of Judges in this case:

Singleton L.J.-
"............the decision of the House of Lords in Bourhill v. Young, shows that the
test in such cases is whether the driver could reasonably, have foreseen any
damage to the plaintiff. Unless he could, it was said, no duty was owed to her, and
consequently there was no negligence vis-a-vis the plaintiff."

McNair, J.-
"If I am asked where the line is to be drawn, I should humbly, reply....... it should
be drawn where in the particular case the good sense of the jury or judge decides."

Denning Lord J.,-

"The true principle is this: Every driver can and should foresee that if he drives
negligently, he may injure somebody in the vicinity in some way or other; and he
must be responsible for all the injuries which he does in fact cause by his
negligence to anyone in the vicinity, whether they are wounds or shocks, unless
they are too remote in law to be recovered. If he does by his negligence and in
fact causes injury by shock, then he should be liable for it unless he is exempted
on the ground of remoteness."

Denning Lord J., also distinguished this case with that of Hambrook's case, as-
"......I think that the shock in this case is too remote to be a head of damage. It
seems to me that during slow backing of the taxicab the driver cannot reasonably
be expected to have foreseen that his backing would terrify a mother 70 yards
away, whereas the lorry driver ought to have foreseen that a runaway lorry might
seriously shock the mother of children in the danger area."

From the above observations, it may be inferred that although the Judges agreed
in the result but they disagreed in the theoretical basis of that result.

Mcloughlin v. O'Brian, (1982) 2 All ER 298.-The plaintiff's husband and three

children met with an accident. One child died while plaintiff's husband and other
children received severe injuries. The plaintiff was two miles away from the site
of accident, when the accident took place. After hearing this news, the plaintiff
suffered severe and persisting psychiatric illness.
The House of Lords in an unanimous voice (L. Bridge, L. Scarman, L.
Wiberforce, L. Edmund Davies and L. Russell) held the defendant liable for the
nervous shock and allowed the appeal for damages.

Page v. Smith, (1995) 2 All ER 736.-

The plaintiff in the motor accident remained unhurt but suffered 'Myalgic
Encephalomyelitis', a psychiatric illness with which he had earlier suffered but
was in remission that time. The injury although was not foreseeable in a
normal man but as a personal injury of physical harm was foreseeable, the
defendant was held liable for damages.
The House of Lords also laid down following propositions, which may be taken
as guiding factors in deciding such kind of cases-
(i) In cases involving nervous shock, it is essential to distinguish between the
primary and secondary victims.

(ii) In claims by secondary victims, the law insists on certain control

mechanisms, as a matter of policy in order to limit the number of potential
claimants. Thus, the defendant will not be liable unless
psychiatric injury is foreseeable in a person of normal health. If, plaintiff is
the primary victim, then this mechanism has no place.

(iii) If claim is sought by secondary victims, it may be legitimate to use

hindsight in order to be able to apply the test of reasonable foreseeability at
all.

(iv) Subject to the above qualifications, the approach in all cases should be the
same.

(v) A defendant who is under a duty of care to the plaintiff, whether as primary
or secondary victim, is not liable for damages for nervous shock unless the
shock results in some recognised psychiatric illness.

Conclusion
Due to vagueness/ambiguity of the rule of foreseeability, the House of Lords
faced a lot of difficulty and therefore laid down some qualifications to the rider of
reasonable foresight in certain cases e.g.-
(i) where secondary victim has close relationship of love and affection with the
primary victim and also that his proximity to the accident is sufficiently close in
time and space (Mcloughlin v. O'Brian);
(ii) in case of secondary victims, it may be legitimate to use hindsight in order to
be able to apply the test of reasonable foreseeability at all (Page v. Smith); and
(iii) tortfeasor must take his victim as he finds him (Page v. Smith).

Alcock v. Chief Constable of the South Yorkshire police(1991)4 All ER 907

(HL)

According to White‘s case, mental suffering has to be divided into different

categories. Mental suffering following from foreseeable physical injury is
routinely compensated under the head ‗pain and suffering‘ while awarding
compensation for personal injury. Mental suffering, which is not a concomitant of
physical injury, is further subdivided into two groups.

The first group embraces that mental suffering which does not amount to a
recognizable psychiatric illness even if it consists of extreme grief and the
sufferer is debilitating.

The second group consists of that mental suffering which amounts to a

recognizable psychiatric illness.

The difference between the two groups is often difficult to draw and is a matter
for expert psychiatric evidence.

Mental suffering not following physical injury which does not amount to a
recognizable psychiatric illness is not redressable under the common law. While
that amounting to a recognizable psychiatric illness is redressable in a limited
number of cases for which purpose the sufferers are divided into primary and
secondary victims.

‗Primary‘ victims are those who are participants in the event or are in the actual
area of danger of receiving foreseeable personal injury but suffer only a
recognizable psychiatric illness and escape personal injury by chance or good
fortune. They are entitled to receive compensation for mental suffering even if
psychiatric illness was not foreseeable.

A ‗secondary‘ victim is one who is not a participant in the event or is not in the
area of danger of receiving foreseeable personal injury but yet suffer recognizable
psychiatric illness.
He can he allowed damages if the following conditions known as control
mechanism are satisfied:

(i). The plaintiff must‘ve close ties of love and affection with the main victim.
Such ties may be presumed in some cases (e.g. spouses, parent and child) but
must otherwise be established by evidence,

(ii) The plaintiff must‘ve been present at the accident or its immediate aftermath
(viz. an employee of the tortfeasor, a rescuer, etc.).

(iii) The psychiatric injury must‘ve been caused by direct perception of the
accident or its immediate aftermath and not upon hearing about it from someone
else.

The effect of the decision in White‘s case is to finally replace the test of
foreseeability of psychiatric injury to a person of normal fortitude which started
from Hay (or Bourhill) v Young, by the test of foreseeability of personal injury
in case of primary victims and by the control mechanisms mentioned above in
case of secondary victims. These tests which are reaffirmed in this case have their
origin in Alcock‟s case and Page v Smith. Policy considerations have played an
important role in treating pure psychiatric injury different from personal injury
and in limiting the area within which compensation can be claimed for the former.

In the Alcock‟s case, plaintiffs, who suffered nervous shock when disaster at a
football match was televised live and in news bulletins but without depicting the
suffering or dying of recognizable individuals, were held not entitled to damages.

Aftermath Doctrine: Witnessed the immediate aftermath of an accident in the

hospital and suffer nervous shock can recover claim because it was reasonably
foreseeable the consequence of defendant‘s negligence, even though it is not
within the sight and hearing [Mc Loughlin v. O‟Brian].

In Jaensch v. Coffey

The court held that ‗immediate aftermath‘ includes :

(i). Being at the scene after accident;

(ii) seeing treatment at the hospital;

 In Bourhill (or Hay) v. Young (1943)A.C.92

The plaintiff heard the noise although she did not see the accident and suffered
nervous shock. It was held that she was not within the area of potential damage
arising as a result of defendant negligence.

Though in Mc Loughlin V. O‟Brian (1982), the plaintiff after being told of the
accident was taken to the hospital where she saw the injured husband and children
. She was allowed the damages for nervous shock.

In Alcock‟s case (1991) : A person can claim damage for nervous shock which
he suffers on seeing the aftermath of the accident after being told about the
accident, but for that he will require existence of close relationship of love and
affection and close proximity of time and space with the accident or its aftermath.

Thin Skull/Egg-shell Skull Rule: Once it is shown that some psychiatric damage
was foreseeable, it does not matter that the claimant was particularly susceptible
to psychiatric illness-the defendant must ―take his victim as he finds him‖ and pay
for all the consequence of nervous shock [Page v. Smith]

Rescuers (such as fireman, policeman or volunteers): who put themselves in the

way of danger and suffer psychiatric shock as a result used to be ―primary
victims‖ until the decision in White v. Chief Constable of South Yorkshire
Police(1995) explained that rescuers had no special position in the law and had to
prove reasonable fear as a consequence of exposure to danger. Rescuers
invariably come within the category of a secondary victim, and secondary victims
have more difficulty recovering damages than the primary victims.

Answer to the Question[2017(1(b))] :

Test of Reasonable foresight:

Wagon mound Decision:

Brief Fact Summary. The defendants negligently caused oil to spill into the Port of
Sydney and do minimal damage to the plaintiff‘s wharf. The oil subsequently caused a
fire when molten metal dropped into the water and ignited cotton waste floating in the
port.
The natural consequences rule is overruled and reasonable foreseeability test is adopted.
Whether the fire that destroyed the Plaintiff‘s wharf was a foreseeable consequence of
the Defendant‘s negligence.

Held: The injury to Plaintiff‘s property, though a direct result of the defendant‘s
negligence was an unforeseeable consequence and liability does not attach.

In Smith v. London and South West Rly. Cofi

According to the opinions expressed in this case, what a reasonable man can foresee is
relevant in determining whether the defendant‘s conduct was negligent or not and once
he has been found negligent he must answer for all the natural consequences of his
wrongful conduct. This and some other cases paved the way for the rule in In re Polemis
and Furness, Withy &Co., according to which if the defendant could reasonably
foresee some damage resulting from his wrongful conduct than he must he held
responsible for all direct consequences of that conduct. Thus, what a reasonable could
foresee was relevant in determining culpability not compensation.

In Hughes v. Lord Advocate, employees of the post office opened a manhole in the
street and in the evening left the manhole covered by canvas shelter, unattended and
surrounded by warning paraffin lamps A boy of 8 years old accompanied by his uncle
aged 10 brought one of the lamps into shelter. He stumbled over the lamp and lump fell
into the manhole an explosion followed and the boy also fell into the manhole. He was
seriously burnet. In this case it was foreseeable that the boys might plays with lamps and
suffer injury from the burns. But the explosion could not have been reasonably foreseen.
Even then, defendants were held liable on the ground that that the injury, which actually
resulted, was not different in kind from the injury, which could reasonably have been
foreseen.

Answer to the Question [2015(6(a))]: Refers to the cases of

Bourhill (or Hay) v. Young (1943)A.C.92

Mcloughlin v. O'Brian, (1982) 2 All ER 298

Page v. Smith (1995),
Alcock v. Chief Constable of the South Yorkshire police(1991)4 All ER 907 (HL)

Answer to the Question [2015(6(b))]:

Refers to the cases Page v. Smith (1995), Mcloghlin v. O‘Brian (1982)

 Decision to Question no [2016(2)]:

D would be liable for the damaged caused to M according to the principle laid
down in the case Mc Loughlin V. O‟Brian (1982) and Alcock‟s case (1991).

D would not held to be liable for the damage caused to N. According to the
Alcock‘s case person will require existence of close relationship of love and
affection and close proximity of time and space with the accident or its aftermath
to succeed in claiming the damage

Decision to the Question no [2017(4)]:

Accoding to the case, Kings v. Phillip(1953), C‘s mother would not able to
recover the damage.

A‘s mother would able to recover the damage, According to the precedent laid
down in cases Hanbrook v. Stokes Bros(1924) and Mc. Loughlin v.
O‘Brian(1942).

Decision to the Question no [2018(3)];

D would held to be liable for the damage caused to M according to the precedent
of Mc. Loughlin v. O‘Brian(1942),and Hanbrook v. Stokes Bros(1924).

Remoteness of Damages

(Q). Explain the tests for determining remoteness of damage. Also explain the effect of
the Wagon Mound decision on "Egg shell skull" cases. [2016(3(b))]

(Q). what are the test to determine the remoteness of damage?

Discuss the present law on this point. [2018(6(a))]

(Q). Test of remoteness of damage. [2019(1(c))].

(Q). Novus Actus Interventions. [2017(1(a))].

Introduction:

The consequences of a wrongful act may be endless. No defendant can be made liable ad
infinitum for all the consequences which follow his wrongful act. He is liable for those
consequences only which are not too remote from his act. There are two main tests to
determine whether the damage is remote or not. They are the test of reasonable foresight
and the test of directness.

According to the test of reasonable foresight, if the consequences of a wrongful act can
be foreseen by a reasonable man, they are not too remote. If, however, the consequences
could not be foreseen by a reasonable man, they are considered to be remote. According
to the opinion of Pollock C.B. in Rigby v. Hewitt (1850) and Greenland v. Chaplin
(1850), the liability of the defendant is only for those consequences which could have
been reasonably foreseen.

The test of reasonable foresight was rejected and the test of directness was considered to
be more appropriate by the Court of Appeal in Re Polemis and Furness, Withy & Co.
Ltd. (1921).

(1) Test of reasonable foresight- According to this test if a reasonable man could
have foreseen the consequences of a wrongful act they are not too remote. This
view was upheld in Rigby v Hewitt (1850 5 Ex. 240). Thus, if A commits a
wrong, A will be liable only for those consequences which he could foresee, for
whatever could not have been foreseen is too remote a consequence of his
wrongful act. Scott v Shepherd (above) illustrates the test of reasonable foresight.
In that case, the person intervening was not fully responsible for his act and the
defendant should have foreseen this irresponsibility; the chain of causation was
unbroken and the defendant was held liable.
(2) Test of directness: a person is liable for all the consequences which directly
follow his wrongful act whether he could have foreseen them or not because the
consequences which directly follow a wrongful act are considered to be not too
remote.

In Smith v. London and South Western Rly. Co. (1870)

when a railway company negligently allowed a hay stack to remain by the side of
a railway line and the hay stack caught fire by a spark from an engine and the fire
was carried by high wind to a nearby cottage, the railway company was held
liable for the destruction of the cottage as that was considered to be the direct
consequences of the defendant's negligence.
The test of directness as laid down in Re Polemis has been considered to be
incorrect and the same was rejected by the Judicial Committee of the Privy
Council in 1961 in Overseas Tankship Ltd. v. Morts Dock and Engg. Co.
Ltd., (Wagon Mound Case) in an appeal from New South Wales and it was.
Held that the test of reasonable foresight was the better test.

Re Polemis and Furness, Withy & Co.[(1921) 3 K.B. 560]

Employees of the defendant had been loading cargo into the under hold of a ship
when they negligently dropped a large plank of wood. As it fell, the wood
knocked against something else, which created a spark which served to ignite the
surrounding petrol fumes, ultimately resulting in the substantial destruction of the
ship. At first instance (arbitration), it was held that the reasonable un
foreseeability of the outcome meant that the defendant was not liable for the cost
of the ship.
It was held that defendants were liable for all the direct consequences of their
servant‘s negligent act including destruction of the ship even though
consequences could not have been reasonably anticipated.
The court observed: ―Given the breach of duty which constitutes negligence and
given the damage as a direct result of negligence, the anticipation of the person
whose negligent act has produced the damage appears to be irrelevant‖ (Bankers,
L.J.). ―The question whether the consequences of any given act are such as could
or could not be reasonably foreseen, goes to culpability, not to compensation‖
(Scrutton, L.J.).
On this view, the test of reasonable foresight is of relevance in determining
whether there has been a negligence or not, but when it has been once determined
that there is negligence the defendant is liable for its direct consequences, whether
he could have foreseen them or not.

Overseas Tankship (UK) Ltd V Morts Dock & Engg. Co.. Ltd(“Wagon
Mound Case)1961) A.C. 388]
The crew members of the Overseas Tankship (UK) Ltd were working on a ship,
when they failed to turn off one of the furnace taps. This caused oil to leak from
the ship into the Sydney Harbour. Morts Dock & Engineering Co (The Wagon
Mound) owned the wharf, which they used to perform repairs on other ships. The
leaking oil on the water surface drifted to the site where Morts were welding
metal. A supervisor enquired to find out whether the oil was flammable, which he
was assured that it was not. However, a spark from welding and mixed with
debris, caught fire from the spilt oil and this caused a fire to spread rapidly. This
caused significant damage to Mort‘s wharf.
The trial court and the Supreme Court of the New South Wales applied the
Polemis rule and mentioning that unforseeability of damage by fire was no
defence, held the defendants liable.
On appeal the Privy Council held that Re Polemis was no more good law and
reversed the Supreme Court‘s decision. Since a reasonable man could not foresee
such injury the appellants (defendants) were held not liable in negligence even
though their servant‘s negligence was the direct cause of the damage.
The Privy Council, in this case, laid down the following two principles:
(1) The only test applicable was foreseeability of the damage complained of,
which in' this case were the damage caused by fire.
(2) The respondents could not be held liable for unforeseeable damage viz.
damage by fire. Though the contact of the oil with the respondent‘s property
caused damage by interfering with the use of their shipways and this damage was
foreseeable, no claim was made for it.
Referring to the Polemis case, their Lordships said: ―Polemis rule does not seem
consonant with current ideas of justice or morality, for an act of negligence,
however slight or venial, which results in some small foreseeable damage, the
actor should be liable for all consequences, however unforeseeable and however
grave, so long as they can be said to be ‗direct‘.
The Polemis rule by substituting ―direct‖ to ―reasonably foreseeable‖
consequence leads to a conclusion equally illogical and unjust.‖
The decision in this case has been considered good law by the House of Lords and
the Court of Appeal in subsequent cases.

Hughes v. Lord Advocate [(1963) 1 All ER 705]

Workmen employed by the defendant had been working on a manhole cover, and
then proceeded to take a break, leaving the hole encased in a tent with lights left
nearby to make the area visible to oncoming vehicles. Two young boys, the
claimants, encountered the uncovered and unattended man hole and proceeded to
climb down to see inside of it, bringing with them one of the paraffin lamps left
out by the workmen. The lamp was subsequently dropped and caused a significant
explosion which left both of the boys with extensive injuries from the fire. The
defendant submitted that such an action would have caused this outcome was
deemed unforeseeable.
The House of Lords held that since the kind of damage was foreseeable although
the extent was not, the defendants were liable i.e. the boy was entitled to recover
damages. It will be seen that the foreseeable and actual injuries were of the same
kind i.e. bum injuries resulting from kerosene coming in contact with the naked
flame and the difference only lay in the manner in which the events were
predictable and the way they happened.

Smith v. Leech Brain & Co. (“EGGSHELL SKULL” CASE) [(1962) 2 QB

405] :
The complainant was employed as a galvanizer of steel for the defendants, Leech
Brain & Co Ltd. He had been working and operating a machine in the workplace,
when a piece of molten metal burnt his lip, after he stepped out from behind the
protective shield. Although the burn was treated, he developed cancer and died
three years later. The complainant had a pre-cancerous condition, before the burn
had taken place. When he died, his widow brought a claim against Leech Brain &
Co Ltd under the Fatal Accidents Act.
In an action by the widow of the deceased workman, the defendants were held
liable for his death on the principle that a tort-feasor must take his victim as he
finds him.

In this case, it was laid down that if the plaintiff suffers personal injury from the
wrongful act of the defendant; it is no answer to the claim that the plaintiff would
have suffered less injury ―if he had not unusually thin skull or an unusually weak
heart.‖ A tort-feasor takes his victim as he finds him.

Smith‟s case was followed in Robinson v The Post Office (1974) 2 All ER 737
(CA).
In this case, it was held that it was foreseeable that if a workman slipped from a
ladder made slippery because of the negligence of the employer, the workman
was likely to suffer injury needing medical treatment in the form of injection of
ATS. Although it was not foreseeable that the injection given even without any
negligence on the doctor‘s part would cause encephalitis to the workman because
he was allergic to the second dose of ATS yet the Post Office were held liable on
the principle that they were bound to take the plaintiff as they found him.

When the Damages Excluded as Too Remote

(1) Where not a necessary result - Where the defendant‘s act is not the ‗direct
cause‘ of the damage sustained by the plaintiff. Where the damage is neither
the necessary nor the probable result of the defendant‘s act, nor is it such as
can be shown to have been in his contemplation when he committed the act, it
can be said to be too remote.
In Sharp v Powell, the defendant‘s servant, in breach of a Police Act, washed
the defendant‘s van in a street, and allowed the waste water to run down the
gutter towards a grating leading to the sewer, about 25 yards off. In
consequence of the extreme severity of the weather, the grating was obstructed
by ice and the water flowed over a portion of the cause way and froze there.
The plaintiff‘s horse slipped upon the ice and broke its leg. Held, that this was
a consequence too remote to be attributed to the wrongful act of the defendant.
(2). Contributory negligence of the plaintiff - When the damage is caused,
wholly or principally, by the act of the plaintiff himself.
In Glover v London & S. W. Rly. (1867) 3 Q.B. 25,
A railway passenger misplaced his ticket, and could not produce it when
demanded by the ticket collector. Thereupon, he was removed from the
carriage without any undue force. When so removed, he left his race-glasses in
the carriage, and lost them. It was held that the loss of the race-glasses was not
the necessary consequence of the removal of the passenger from the carriage,
but was owing to that passenger‘s negligence or carelessness. The loss was too
remote, and the passenger could not recover it.
(3) Wrongful act of third party (novus actus)/ Interference of third person
- When the damage is due to the wrongful act of an independent third party,
such as could not naturally be contemplated as likely to spring from the
defendant‘s conduct.
The principle underlying the maxim novus actus interveniens (new acts
intervening) is that there are circumstances when an intervening act of third
party breaks the chain of causation between the wrongful act and the damage
sustained by the plaintiff. However, damage is recoverable if, despite
intervening independent causes, the defendant ought reasonably to have
anticipated such interventions and to have foreseen that, it they occurred, the
result would be that his wrongful act would lead to mischief.
In Haynes v Harwood (1935) 1 K.B. 146, the defendant‘s servants
negligently left a horse van unattended in crowded street. By the throwing of
stones at the horses by a child, they ran away and injured a person. The
defendant pleaded the defence of novus actus interveniens. Held that the
defendant was liable. Because such a mischief on the part of the children was
anticipated. The accident was the natural and probable consequence of the
defendant‘s wrongful act. The case also illustrates that children generally do
 not constitute novus actus when their action is the result of their mischievous
tendencies.

No Fault Liability: Strict and Absolute Liability

(Q). ‗X‘, a worker was injured at his work at a factory owned by M/s T & co. When a
cover over a cauldron of molten hot liquid fell in and caused an explosion, propelling the
liquid toward 'X' .Taking into account the possibility of such accidents. The company
had constructed some protective walls around the cauldron. It was not known that the
cover would explode when it fell in the liquid. 'X' moves the court for damages for the
injury caused to him. Decide citing relevant case laws. [2015-3(b)].

(Q). " A rule specifying strict liability in tort makes a person legally responsible for the
damage and loss caused by his/her acts and omissions regardless of culpability.
So also, under strict liability, there is no requirement to prove fault, negligence or
intension. ―Elucidate.
Explain the exceptions available to a tortfeasor in strict liability cases with supporting
case law. [2015(5)]

(Q). 'P' was injured when an elevator he entered plunged several floors and stopped
abruptly. Jain Elevator Corporation (JEC) has built the elevator and was also responsible
for maintaining of 'P' sues JEC. During the legal proceedings, JEC claims that P's
complaint should be dismantled because he has never proved or for that matter even
offered a theory as to why the elevator functions incorrectly. Therefore, there is no
evidence that they were at fault. Decide citing appropriate legal principles and case law.
[2015[2(b)].

(Q). Explain the rule of strict liability as laid down in Rylands V. Fletcher with
exception.
An ordinance factory owned by X made explosion for the Gov. Of India. One day a shell
exploded within the premises of the factory and injured a workmen (W). W sues X for
damage under the rule laid down in Rylands V. Fletcher.
Will W succeed ? Would your answer be different if W claimed damage under the rule
laid down in M.C Mehta V. Union of India (AIR 1987 SC 1086 ).[2016(4)].
(Q). A grows on his land poisonous plants. He constructs a seven feet high wall to
ensure that the branches of the plant do not cross the boundary of his land. In spite of
this, the branches of the plant cross the boundary and are eaten by two horses of B and
the horses die in consequence thereof. Can B claim damage from A ?
Will it make any difference to your answer if the horses entered the land of A and then
eaten the plants. Decide in the light of law laid down in Rylard V. Fletcher (1868).
[2018{4(a)}].

(Q). Explain the ' No fault' liability principle.

A, an owner of a cinema hall in India was sued for the fire disaster in the hall. The owner
claimed that fire occurred due to some children who lighted fire crackers in the hall.
Upon evidence it was found that the children had lighted the crackers, but a proper fire
and exit system had not been installed by the owner. Decide.[2017(5)].

Answer to Question [2015(5)]:

Strict Liability (Rylands v. Fletcher)

The term Strict Liability refers to the imposition of liability on an individual or entity for
losses and damages without having the need to prove negligence or mistake.

Generally in legal action the plaintiff has to prove that the defendant is liable either by
negligence or fault. However, in Strict Liability the plaintiff only needs to prove that the
tort occurred and the defendant was responsible. Strict Liability is a kind of Tort that
makes a person or entity responsible for their acts even when the consequences were
unintentional. Law also imposes liability only on those actions which it feels are
naturally dangerous. Strict Liability is also known as „no fault liability‟. It is due to the
immateriality of intention and negligence.

The undertakers of hazardous or dangerous activities have to compensate for the damage
caused irrespective of any carelessness on their part. The basis of liability is the
foreseeable risk inherent in the very nature of the activities.

The rule laid down in Rylands v Fletcher is called the rule of strict liability (it is not
called the rule of ‗absolute liability‘ because of the various exceptions to it). The rule
laid down in M.C. Mehta‘s case is called the rule of absolute liability i.e. stricter than
strict liability (as it does not recognize any exceptions).
Applicability of Rylands Rule in India The rule of strict liability is applicable in India,
however, with certain deviations. The Motor Vehicles Act, 1988, recognizes liability of
the owner or insurer of the vehicle, without proof of any negligence (‗no fault liability‖).
Under the Indian Railways Act, 1961 and Carriers Act, 1865, the railways/ carriers can
be made liable even if there is no negligence on their part. The Public Liability Insurance
Act, 1991, and, the National Environment Tribunal Act, 1995, also recognizes no-fault
liability.

RULE OF ABSOLUTE LIABILITY (M. C Mehta v. UOI)

The concept of absolute liability evolved in India after the case of M.C Mehta vs Union
of India, famously known as Oleum Gas Leak case. This is one of the historic cases in
the Indian Judiciary. The case of M.C Mehta is based on the principle of strict liability
but with no exception were given and the individual is made absolutely liable for his
acts. It is based under this principle that the defendant won‘t be allowed to plead
defence if he/she was at fault as it was laid down in Ryland vs Fletcher case..

If an industry or enterprise engaged in some inherently dangerous activity from which it

is deriving commercial gain and the 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 measure were taken care of by them and
that there was no 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‘.

Difference between Strict Liability and Absolute Liability:

Strict Liability Absolute Liability

1. This rule is based on the principle This rule is based on the judgment of
of Rylands v Fletcher. Followed M.C Mehta v. Union of India. It is an
in England. innovation of Supreme Court of India.
 2. Strict Liability makes the Absolute liability makes the defendant
defendant liable for the accident Liable for the accident caused without
caused without any intension and any intension or negligence on his part
negligence on his part with some without any exception.
exception like act of god, act of
stranger, act done with the consent
of the plaintiff.
3. Defendant could escape the In this case the defendant is absolutely
liability by taking defence of liable for the damage caused to the
certain exception. plaintiff.

4. Escape of dangerous thing from Escape of dangerous thing from the

the premises is the necessary premises is not the necessary condition
condition to held defendant to be for liability of the damages.
liable. There is no difference between the
This rule covers only the accident accident occurred inside the premises or
occurred outside the premises. outside the premises.
5. Damage awarded in this case is Damage awarded in this case is
compensatory in nature. exemplary in nature.

Answer to Question[2015(5)]:

Introduction:

Rylands v. Fletcher(1868)

In Rylands v Fletcher (1868) LR 3 HL 330, the defendants employed independent

contractors to construct a reservoir on their land. The contractors found disused mines
when digging but failed to seal them properly. They filled the reservoir with water. As a
result, water flooded through the mineshafts into the plaintiff‘s mines on the adjoining
property. The plaintiff secured a verdict at Liverpool Assizes. The Court of Exchequer
Chamber held the defendant liable and the House of Lords affirmed their decision.

As the engineers were independent contractors, the defendants could not be made
vicariously liable for their negligence. Even though defendant had not been negligent he
was held liable. The defendant, in bringing water into the reservoir, was bound to keep it
there at his peril, and was, therefore, liable.

Blackburn J. in these words: ―The rule of law is that the person who, for his own
purpose, brings on his land and collects and keeps there anything likely to do mischief if
it escapes, must keep it in at his risk; and if he does not do so is prima facie answerable
for all the damage which is the natural consequence of its escape.‖ Thus, a man acts at
his peril and is the insurer of the safety of his neighbor against accidental harms.

Requirements

It was decided by Blackburn J, who delivered the judgment of the Court of Exchequer
Chamber, and the House of Lords, that to succeed in this tort the claimant must show:

1. That the defendant brought something onto his land;

2. That the defendant made a ―non-natural use‖ of his land (per Lord Cairns,
LC);
3. The thing was something likely to do mischief if it escaped;
4. The thing did escape and cause damage.

Foreseeability

There is now a further requirement, according to the House of Lords, that harm of the
relevant type must have been foreseeable.

REQUIREMENTS

1. The defendant brought something onto his land

In law, there is a difference between things that grow or occur naturally on the land, and
those that are accumulated there artificially by the defendant. For example, rocks and
thistles naturally occur on land. However, the defendants in Rylands v Fletcher brought
water onto the land.

2. Non-natural use of the land

In the House of Lords, Lord Cairns LC, laid down the requirement that there must be a
non-natural use of the land.. The concept of non-natural use is flexible. A use may
become unnatural in course of time and vice versa.
3. Something likely to do mischief

The thing brought onto the land must be something likely to do mischief if it escapes. In
such a situation the defendant keeps it in at his peril.

4. Escape

There must be an escape of the dangerous substance from the defendant‘s land.

5. Foreseeability

In layman‘s language foreseeability means to know beforehand and in this context it

means knowing beforehand whether the commission or omission of an act will likely
cause any damage or injury to another. Whether an act is foreseeable or not is
determined from the perspective of a reasonable man. Also, (Wright 2003)
foreseeability is a matter of knowledge and inference. As, no matter how likely it is
that something will occur, it is foreseeable by a person only if that person knows or
ought to know that it might occur.

REMEDIES

The owner of land close to the escape can recover damages for:

1. Physical harm to the land itself (as in Rylands v Fletcher) and to other property.

2. It is no longer clear if a claimant can recover for personal injury.

Answer to Question [2015(5)]:

Exception when the defendant not to be held liable:

DEFENCES

A number of defenses have been developed to the rule in Rylands v Fletcher.

1. Consent

The express or implied consent of the claimant to the presence of source of the danger,
provided there has been no negligence by the defendant, will be a defence.

2. Common Benefit

If the source of the danger was maintained for the benefit of both the claimant and
defendant, the defendant will not be liable for its escape. This defence is either related to
the defence of consent or the same thing. According to Winfield & Jolowicz, p551,
―common benefit seems redundant (and indeed misleading) as an independent defence‖.
3. Act of a stranger

The defendant will not be liable if a stranger was responsible for the escape.

Rickards v Lothian [1913] AC 263. The D was not liable when an unknown person
blocked a basin on his property and caused a flood, which damaged a flat below.

4. Statutory authority

A statute may require a person or body to carry out a particular activity. Liability under
Rylands v Fletcher may be excluded upon the interpretation of the statute.

5. Act of God

An act of God is an event which ‗no human foresight can provide against, and of which
human prudence is not bound to recognize the possibility‘. Thus, storm, tempest,
lightning, extraordinary rainfall, etc. fall under the category of act of God. In order that a
phenomenon should fall within the operation of the rule of law with regard to an act of
God, it is not necessary that it should be unique or that it should happen for the first
time; it is enough to show that it is extraordinary, and such as could not reasonably be
anticipated.

6. Default of the claimant

If the escape is the fault of the claimant there will be no liability. Alternatively, there
may be contributory negligence on the part of the claimant. In Ponting v Noakes (1894)
2 QB 281, the plaintiff‘s horse nibbed the poisonous leaves on the boundary of the
defendant and died. The defendant was held not liable because damage would not have
occurred but for the horse‘s own intrusion into the defendant‘s land.

*MADRAS RAILWAY CO. v ZAMINDAR OF CARVETNAGARAM [(1874)

The Madras Railway Company claimed in this suit damages against the Defendant, the
Zemindar of Carvatenagarum, for injuries occasioned to their railway and works by the
bursting of two tanks upon his land.

The Defendant denied that the injuries complained of resulted from the bursting of the
tanks; he asserted that if they did so arise, the bursting was caused by no act or
negligence of his, but by vis major, or the act of God.

He further pleaded in these terms: The tanks referred to in the plaint have existed from
time immemorial, and are requisite and absolutely necessary for the cultivation and
enjoyment of the land, which cannot be otherwise irrigated; and the practice of storing
water in such tanks in India, and particularly in this district and in the Zemindary of
Carvatenagaram and the adjacent districts, is lawful, and is sanctioned by usage and
custom. The said zemindary is a hilly district, and the ryots will be unable to carry on
their cultivation without such tanks, they being the chief source of irrigation, and the
omission to store quantities of water in such tanks will be attended with consequences
dreadful to the inhabitants of the country. The Defendant could not have avoided
collecting a quantity of water in the tanks during the monsoon, and he has not failed to
use any reasonable care that may be expected from him.

The evidence showed that the respondent was not negligent. The issue, thus, was
whether respondent could be made liable on the principle of Rylands v Fletcher or
whether the case is covered by any of the exceptions to the principle?

Their Lordships observed that the liability as laid down in Rylands v Fletcher is
applicable only where a man exercises right which belongs to him. But the rule does not
apply where the defendant is empowered to exercise his right conferred by statute (an
exception to Rylands rule). The ancient tanks formed a part of national system of
irrigation recognized by Hindu and Mohammedan Laws by regulations of the East India
Company. And now Zamindars were vested with the statutory rights of maintaining the
tanks, a duty originally undertaken by the government.

Their Lordships further observed that considering the enormous benefit conferred on the
public by these tanks, it would be injustice to impose upon the owners of the land, on
which these tanks are situated, a greater obligation than to use all ordinary precautions to
prevent the water from escaping and doing injury to their neighbors. It was held that
under these circumstances the Rylands rule was not applicable and as the Zamindar was
not negligent he was not liable for the damage caused by the overflowing water.

*M.P. ELECTRICITY BOARD v SHAIL KUMAR (AIR 2002 SC 551)

In this case, the apex court applied the rule of strict liability. The defence of the
dangerous being an ‗act of the stranger‘ (an exception to the rule of strict liability) was
not allowed because the same could have been foreseen.

One Jogendra Singh, a workman in a factory, aged 37, was riding on a bicycle on the
night of 23.8.1997 while returning from his factory, without any premonition of the
impending disaster awaiting him en-route. The disaster was lying on the road in the form
of a live electric wire. There was rain and hence the road was partially inundated with
water. The cyclist did not notice the live wire on the road and hence he rode the vehicle
over the wire which twitched and snatched him and he was instantaneously electrocuted.
He fell down and died within minutes.
When the action was brought by his widow and minor son, nobody disputed the fact that
Jogendra Singh died at the place and time mentioned by the claimants. Nor has it been
disputed that he was electrocuted by the live wire lying on the road. The main contention
advanced by the appellant Board is that one Hari Gaikwad (third respondent) had taken a
wire from the main supply line in order to siphon the energy for his own use and the said
act of pilferage was done clandestinely without even the notice of the Board, and that the
line got unfastened from the hook and it fell on the road over which the cycle ridden by
the deceased slided resulting in the instantaneous electrocution.

The court held that the Board had statutory duty to supply electricity in the area. If the
energy so transmitted causes injury or death of a human being, who gets unknowingly
trapped into it, the electric supplier shall be liable for the same. If the electric wire was
snapped the current should have been automatically cut off. Authorities manning such
dangerous commodities have extra duty to chalk out measures to prevent such mishaps.
So long as the voltage of electricity transmitted through the wires is potentially of
dangerous dimensions the managers of its supply have the added duty to take all safety
measures to prevent escape of such energy or to see that the wire snapped would not
remain live on the road as users of such roads would be under peril.

The court clarified that even assuming that all such measures have been adopted, a
person undertaking an activity involving hazardous or risky exposure to human life is
liable under law of torts to compensate for the injury suffered by any other person,
irrespective of any negligence or carelessness on the part of the managers of such
undertaking. The basis of such liability is the foreseeable risk inherent in the very nature
of such activity. This liability, known as ―strict liability‖, differs from the liability which
arises on account of the negligence or fault in this way. In the latter case, if the defendant
did all which could be done for avoiding the harm he cannot be held liable, but in the
former case, the defendant is liable irrespective of whether he could have avoided the
particular harm by taking precautions.

*RULE OF ABSOLUTE LIABILITY

(Rule in M.C. Mehta v Union of India)

Introduction

The rule of absolute liability is similar to the rule of strict liability with some
modification. This rule applies without any limitation or exception and creates an
individual completely liable for any fault. The property to make anyone absolutely liable
for the fault and imposition of high retraction make these liability as absolute liability.

The rule of Absolute liability was laid down by the Honourable Supreme Court of India
in the case of M.C. Mehta V UOI and Bhopal Gas Leak case. Where the Hon'ble Apex
Court maximise the limit of rule of Ryland V. Fletcher. The rule laid down by the SC is
much wider with respect to the rule laid down by House of Lords.

By Explaining the rule of No fault liability, Blackburn J. said that "We think that the rule
of the law is that the person who for his own purposes brings on his lands and collects
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.

Justice Bhagwati also stated that the rule of strict liability was evolved in 19th century,
the time when nature industrial developments was at primary stage, in today‘s modern
industrial society where hazardous or inherently dangerous industries are necessary to
carry out development programe, thus this old rule cannot be held relevant in present day
context. Also one cannot feel inhibited by this rule which was evolved in the context of
totally different social and economic structure.

In the original petition by M.C. Mehta, a social activist lawyer, he seek closure of
Shriram Industries as it is engaged in manufacturing of hazardous substances and is
located in a densely populated area of Delhi. While the petition was pending, oleum gas
leaked from one of its units affecting several persons. A three judge bench allowed the
partial reopening of the plant but directed the company to take all necessary safety
measurers. On behalf of those affected by the gas leak, the Delhi Legal Aid and Advice
Board and the Delhi Bar Association filed applications for compensation in the original
petition by M.C. Mehta.

The court observed: ―This rule (Rylands v Fletcher) evolved in the 19th century at a time
when all these developments of science and technology had not taken place....We have
to evolve new principles and lay down new norms which would adequately deal with the
new problems which arise in a highly industrialized economy.‖ The court, thus, held that
it was not bound to follow the 19th century rule of English law, and it could evolve a
rule suitable to the social and economic conditions prevailing in India at the present day.

The court introduced a new ―no-fault‖ liability standard (―absolute‖ liability or ―stricter
than strict‖ liability): 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 the 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-a-vis the tortious principle of strict liability under the rule in Rylands v
Fletcher. Such enterprise owes an absolute and non-delegable duty to the community to
ensure that no harm results to anyone. Such enterprise must conduct its activities with
the highest standards of safety, and if any harm results, the enterprise must be absolutely
liable to compensate for such harm. 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

Issue of Compensation-

It was held that the measure of compensation must be correlated to the magnitude and
capacity of the industry so that the compensation will have a deterrent effect. The larger
and more prosperous by the industry, the greater will be the amount of compensation
payable by it.

Certain observations in the opinion delivered in the Bhopal Gas Leak case (AIR 1990
SC 273) appear to weaken the Shriram Court‘s standard that the quantum of damages
should be on the basis of the monetary capacity of the delinquent.

In that case, Mukherji, C.J. has pointed out that the Shriram standard of punitive liability
is an ―uncertain province of the law‖ and it is premature to say whether this yardstick has
been or will be accepted in this country, not to speak of its international acceptance.

However, in Bhopal case, in determining compensation payable to Bhopal gas victims,

Mehta principle was applied. Absolute liability, admitting no defences, amounts to a ―no
fault” system. In a no-fault system, the person or company made liable needs to know in
advance what the quantum of liability will be, so that he can obtain liability insurance.

An indeterminate sliding scale seems unconstitutionally vague, as well as bad public

policy. If the objective of providing immediate relief is to be achieved, the mandatory
public liability insurance should be on the principle of ―no fault‖ liability as it is limited
to only relief on a ‗limited‘ or ‗fixed‘ scale.

The Public Liability Insurance Act, 1991, was thus enacted.

In Indian Council for Enviro Legal Action v UOI (AIR 1996 SC 1446),
The apex court, approving the rule laid down in Shriram case, reiterated that once the
activity carried on is hazardous or inherently dangerous, the person carrying on such
activity is liable to make good the loss caused to any other person by his activity
irrespective of the fact whether the reasonable care he took while carrying on his activity
is by far the most appropriate one. It is the enterprise alone that has the resource to
discover and guard against hazards or dangers and not the person affected and the
practical difficulty (on the part of the affected person) in establishing the absence of
reasonable care or that the damage to him was foreseeable by the enterprise.

Decision of the Question no [2015-3(b)]:

Under the principle of Strict and Absolute Liability, the defendant would be held liable
for the damage caused to the Plaintiff.

Decision of the Question [2016(4)]:

According to the principle of Strict liability which is laid down in the case of Reyland
v. Fletcher states that if the accident have occurred due to the following reason:

1. That the defendant brought something onto his land;

2. That the defendant made a ―non-natural use‖ of his land (per Lord Cairns,
LC);
3. The thing was something likely to do mischief if it escaped;
4. The thing did escape and cause damage.

Than the defendant are held to be liable with some exception like

1. Consent

2. Common Benefit

3. Act of a stranger

4. Statutory authority

5. Act of God

6. Default of the claimant

If the defendant succeeded in taking the defence of above provided grounds than he
could escape the liability otherwise held to be liable for the damage caused to the
plaintiff.
According to the principle of Absolute Liability which is laid down in the landmark
judgment of M.C Mehta v. Union of India, there are no exception grounds available for
the defendant to escape the liability. Hence government ordinance factory held to be
absolutely liable.

Decision of question [2018(4a)]:

A is liable for the damage caused to the plaintiff B. Above mentioned case completely
fits the principle laid down in the Rylands v. Fletcher.

Which are the followings:

1. That the defendant brought something onto his land;

2. That the defendant made a ―non-natural use‖ of his land (per Lord Cairns,
LC);
3. The thing was something likely to do mischief if it escaped;
4. The thing did escape and cause damage.

In the provided case, Defendant brought the poisonous plant on his land which could be
called non-natural use of land and its escape from the premises caused damage to the
plaintiff. Hence defendant held to be liable.

Ryland‘s v. Fletcher laid down the principle only about the escape of thing from the
premises causing damage to the plaintiff.

If the horses entered into the premises of the defendant and have eaten the poisonous
plants than the defendant could not held to be liable.

Decision of Question [2017(5)]:

Owner of the Cinema Hall would be Liable for the Damage caused to the Plaintiff.

No Fault principle or Strict and Absolute Liability does not consider negligence as a
form of deface to the defendant. Even if there is no fault of defendant in the occurrence
of the incident, He would be still held liable for the damage caused to the plaintiff.
 Vicarious Liability of the State

(Q).To what extent is the Government of India responsible for the tortious acts
committed by its servants? Trace the development of the law in this regard with the help
of important judicial decisions. [2015(4)]

(Q). Although the decision of the supreme court in Kasturi Lal Ralia Ram Jain v.
State of U.P has not been overruled as such, yet subsequent decision of the Apex court
have greatly undermine its authorities and diminished the sphere of sovereign
immunity."
Elucidate, tracing the development of the law relating to vicarious liability of the state
for the tortious acts of its servant in India.[2016(5)]

(Q). " The doctrine of sovereign immunity has no relevance in the present day context
when the concept of sovereignty itself has undergone a drastic change."
Comment. [2017(6)]

(Q). To what extent is the government of India responsible for the tortious acts
committed by its servants ? Trace the development of the law in this regard with the help
of important judicial
decisions.[2018(5)]

(Q). " It is now increasingly necessary to abandoned the lingering fiction of a legally
indivisible State, and of a feudal conception of the crown, and to substitute for it the
principle of legal liability where the state, either directly or through incorporated public
authorities, engage in activities of a commercial, industrial or managerial character. The
proper test is not an impracticable distinction, between government and non-government
function, but the nature and forms of activity in question. " In the light of above
statement, discuss whether the old distinction between sovereign and non sovereign
functions or government and non-government functions still exists or can be invoked in
India to determine the liability of the state for the wrongful acts committed by its
servants. Refer to decided cases. [2019(6)]

Introduction:

Generally speaking a person is liable for his own acts, but in many cases he may be held
responsible for the torts committed by others. This is known as the ‗vicarious liability‘
i.e. liability incurred for, or instead of, another. The common examples of such a liability
are: Liability of the principal for the tort of his agent, Liability of partners for each
other‘s tort, and, Liability of the master for the tort of his servant.

As Salmond observes, ―In general, a person is responsible only for his own acts, but
there are exceptional cases in which the law imposes on him vicarious responsibility for
the acts of others, however, blameless himself.‖

Since ancient times, it is the rule that a person should be held liable for his own mistake.
In the words of Plato - "a person should be held for his own sins". But, in thirteenth
century, in England, it was for the first time, established that the master would be liable
for his servant's or slave's torts only when there is an express command of the master to
the servant's wrong.

Three conditions are to be satisfied before one person can be held liable for another's tort
on the ground of ratification. These are:
(a) only such acts bind a principal by subsequent ratification as were done at the time on
his behalf. This necessarily implies that what is done by a person on his account cannot
be effectually adopted or ratified by another;
(b) the person ratifying the act must have full knowledge of its tortious character; and
(c) an act which is illegal and void cannot be ratified.

Liability Arising out of Special Relationship

Master-Servant and Principal-Agent are the relationships which has a place in the
partnership.
It can be understood under following headings:
(i) Principal and Agent, (ii) Partners (iii) Master and (iv) Independent Contractor.
Principal and Agent
There is a maxim 'qui facit per alium facit per se' which means 'he who does an act
though another is deemed in law to do it himself' on which the vicarious liability of
principal for the tort of his agent is based. A principal is vicariously liable for the tort of
his agent committed within the course of his authority. Thus, a contract concluded by an
agent on behalf of his principal with third party/parties within the course of his authority
would bind the principal to the third
party.

Vicarious Liability of the State

There is a liability on Government of India and Governments of the Indian States if its
servants commit torts against individuals. The Constitution of India does not say much
on this account but indirectly equates the liability of the present Government with the
former liability of the East India Company.

Article 300, by implication, refers to section 176(i) of the Government of India Act,
1935.
Article 300 of the Constitution of India
"The Government of India may sue or be sued by the name of the Union of India and the
Government of a State may sue or be sued by the name of the State and may, subject to
any provisions which may be made by Act of Parliament or of the Legislature of such
State enacted by virtue of powers conferred by this Constitution, sue or be sued in
relation to their respective affairs in the like cases as the Dominion of India and
corresponding provinces or the corresponding Indian States might have sued or been
sued if this Constitution had not been enacted."

This article by implication refers to section 176(i) of the Government of India Act, 1935,
which reads:
"The Federation may sue or be sued by the name of the Federation of India and the
Provincial Governments may sue or be sued by the name of the Province, and, without
prejudice to the subsequent provisions of this chapter, may, subject to any provisions
which may be made by the Act of the Federation or Provincial Legislature enact by
virtue of powers conferred on that legislature by this Act, sue or be sued, in relation to
their respective affairs in the like case as the Secretary of State for India-in-Council
might have sued or been sued if this Act has not been passed."
The implied reference is to section 32 of the Government of India Act, 1915-
(1) The Secretary of State-in-Council may sue and be sued by the name of Secretary of
State-in-Council, as a body Corporate.
(2) Every person shall have the same remedies against the Secretary of State-in-Council
as he might have had against the East India Company if the Government of India Act,
1858 and this Act had not been passed.

Peninsular and Oriental Steam Navigation Company v. Secretary of State for

India-in-council, 1861

There was a government dockyard based at Kiderpore, situated partly both sides of the
road. A river steamer belonging to Government was also lying nearby for repairs. One
day, certain workmen (Govt. employees) were riveting a piece of iron funnel casing, 300
pound in weight, nine feet long and two feet high, slung on a pole, along the road. They
were walking in between the road, although enough space was left on both sides of the
road. Suddenly, a private carriage appeared. The coachmen and syces shouted a warning
to workmen, the carriage also slowed down. The workmen seeing the carriage close to
them, dropped the iron and ran away. A loud noise frightened the horses and they rushed
forward against the iron and were injured. The damages were claimed to be Rs. 350. An
action was brought for recovery of these damages against the Secretary of State for
India-in-Council, as employer of the workmen.
The question was-"Whether the Secretary of State-in-Council was liable for the damage
occasioned by the negligence of the servants of the Government, assuming them to have
been guilty of such negligence, as would have rendered an ordinary employer liable."
The Chief Justice, Sir Barrens Peacock of the Supreme Court of Calcutta, held the
Government liable.

He observed:
"We are of opinion that for accidents like this, if caused by the negligence of servants
employed by Government, the East India Company would have been liable....... and that
the same liability attached to the Secretary of State-in-Council, who is liable to be sued
for the purpose of obtaining satisfaction out of revenue of India. We are of opinion that
this is a liability not only within the words, but also within the spirit of the.......
(Government of India Act, 1858) and that it would be inconsistent with common sense
and justice to hold otherwise."
Little latter he remarked-
"There can be no doubt that the East India Company would have been liable for the
negligence of their servants or officers in navigating a river steamer or in repairing the
same or in doing any act preparatory to such repairs".
Further he stated-
"that there was a great and clear distinction between acts done in the exercise of what are
usually termed sovereign powers and acts done in the conduct of undertaking which
might be carried on by private individuals without having such powers delegated to
them".
Also-"......where an act is done, or a contract is entered into, in the exercise of powers
usually called sovereign powers, by which we mean powers which cannot be lawfully
exercised except by a sovereign, or private individual delegated by a sovereign to
exercise them, no action will lie."

Rule laid down in the Peninsular case was followed in many cases. But in the year 1882,
Chief Justice Turner in Secretary of State v. Haribhanji, ILR (1882) 5 Mad 273, did
not follow the Peninsular case.

In this case, during the transit of certain salt from Bombay to Madras Port, the rate of
duty was increased and Haribhanji (merchant) was asked to pay the difference at the port
of destination. Although he paid the amount with protest but brought a suit to recover the
amount paid. The defence gave the plea (Secretary of State-in-Council) that this was an
act of sovereign power and that therefore the Court had no jurisdiction. But, Chief
Justice rejected this contention by saying-
"The East India Company was not sovereign......The fact of the company having been
invested with the powers usually called sovereign powers did not constitute them
sovereign (and so) the personal exemption from suit, which is the attribute of
sovereignty, did not attach to it.......And this is further shown by the circumstances
that the company was held liable for the negligence or misconduct of its officers in cases
in which the sovereign would not have been held liable even on petition of right."

Further he added-
"On the assumption by the Crown of the direct Government of British India it was
provided that persons should have the same suits and remedies against the Secretary of
State-in-Council as they had before been entitled to maintain and pursue against the
Company. Consequently, the Secretary of State-in-Council cannot in this country claim
on behalf of the Crown, the prerogative of immunity from suit."

Chief Justice Turner also pointed out that the Peninsular case held only that exemption
from suit cannot be
claimed in respect of "acts done in the conduct of undertakings which might be carried
on by persons who enjoy no delegated powers of sovereignty." It expressed no opinion
that all acts done in the exercise of powers usually termed sovereign 'would enjoy such
immunity.'

Accordingly, "it will not be correct to say that the liability of the Government or its
officers is restricted to acts of the former class".
This point was put forth by Turner C.J.: that acts of the Government may either be
outside the province of Municipal Law or may fall within that law and that it is only of
the former that the courts cannot take cognizance-
"The acts of the State of which Municipal Courts of British India are debarred from
taking cognizance, are acts done in the exercise of sovereign powers which do not
profess to be justified by Municipal Law. Where an act complained of is professedly
done under the sanction of Municipal law and in the exercise of powers conferred by that
law, the fact that it is done by the sovereign power and is not an act which would
possibly be done by a private individual, does not oust the jurisdiction of civil courts."
Kasturi Lal [Link] of Uttar Pradesh

The Supreme Court modified its approach and went back to the Sovereign and non-
sovereign distinction as propounded in Peninsular case

Facts-There was a firm named M/s. Kasturi Lal and Ralia Ram. Ralia Ram was one of
the partners, a bullion merchant who was arrested by the police constable on some
charge and gold and silver was collected from him. The police officer under law were
supposed to keep the seized gold and silver under lock and key but it was
kept in Malkhana under the charge of one Head Constable, Md. Amir, who
misappropriated gold and fled to Pakistan. Ralia Ram after his release got the silver but
not the gold. He brought an action against the State of Uttar Pradesh for loss of his asset
due to negligence of the police officers employed by State Government.

Gajendragadkar C.J. read the unanimous opinion of the Supreme Court holding that the
State Government was not liable as the act of negligence was committed by the police
officers in the exercise of sovereign powers. He remarked-
"Now, the power to arrest a person, to search him, and to seize property found with him,
are powers conferred on the specified officers by statute and in the last analysis, they are
powers which can properly be characterized as sovereign powers; and so, we inevitably
hark back to what Chief Justice Peacock decided in 1861 and hold that the present claim
is not sustainable".

Gajendragadkar C.J.; accepted the distinction drawn by Peacock C.J. in Peninsular case
between sovereign and nonsovereign function of the State, in determining its liability in
tort.

The appellant's contention to extend the principle of Vidyawati case was rejected by the
Supreme Court. The court distinguished the present case with that of Vidyawati's case
and observed-

"It is obvious that when the Government employee was driving the jeep car from the
workshop for the collector's use, he was employed on a task or an undertaking which
cannot be said to be referable to, or ultimately based on, the delegation of sovereign or
governmental powers of the State....... In fact the employment of a driver to drive the
jeep car for the use of a civil servant is itself an activity, which is not connected in any
manner with the sovereign power of the State at all. That is the basis on which the
decision must be deemed to have been founded; and it is this basis which is absent in the
case before us."
The Supreme Court then stated the rule for determining the liability of the State for the
tort of its servants as follows:
"If a tortious act is committed by a public servant and it gives rise to a claim for
damages, the question to ask is: was the tortious act committed by the public servant in
discharge of statutory functions which are referable to, and ultimately based on, the
delegation of the sovereign powers of the State to such public servant? If the answer is in
affirmative, the action for damages for loss caused by such tortious act will not lie. On
the other hand, if the tortious act has been committed by a public servant in discharge of
duties assigned to him not by virtue of the delegation of any sovereign power, an action
for damages would lie. The act of the public servant committed by him, during the
course of his employment is, in this category of cases, an act of the servant, who might
have been employed by private individual for the same purpose."

Thus, in case of Kasturi Lal, Supreme Court accepted the principle as laid down by
Barnes Peacock C.J. in Peninsular case of 1861 and held that the Government would not
be liable for the tortious act committed by its servants in course of exercising sovereign
functions.

State of Rajasthan v. Vidhyawati AIR 1962 SC 933

The facts of this case may shortly be stated as follows: The first defenant, Lokumal, was
a temporary employee of the appellant State, as a motor driver on probation. In February
1952, he was employed as the driver of a government jeep car, registered as No. RUM
49, under the Collector of Udaipur. The car had been sent to a workshop for necessary
repairs. After repairs had been carried out, the first defendant, while driving the car back
along a public road, in the evening of February 11, 1952, knocked down one Jagdishlal,
who was walking on the footpath by the side of the public road in Udaipur city, causing
him multiple injuries, including fractures of the skull and backbone, resulting in his
death three days later, in the hospital where he had been removed for treatment. The
plaintiffs, who are Jagdishlal‘s widow and a minor daughter, aged three years, through
her mother as next friend, sued the said Lokumal and the State of Rajasthan for damages
for the tort aforesaid.

This case also meets the second branch of the argument that the State cannot be liable for
the tortious acts of its servants, when such servants are engaged on an activity connected
with the affairs of the State. In this connection it has to be remembered that under the
Constitution we have established a welfare state, whose functions are not confined only
to maintaining law and order, but extend to engaging in all activities including industry,
public transport, state trading, to name only a few of them. Insofar as the State activities
have such wide ramifications involving not only the use of sovereign powers but also its
powers as employers in so many public sectors, it is too much to claim that the State
should be immune from the consequences of tortious acts of its employees committed in
the course of their employment as such.

In this respect, the present set up of the Government is analogous to the position of East
India Company, which functioned not only as a Government with sovereign powers, as a
delegate of the British Government, but also carried on trade and commerce, as also
public transport like railways, post and telegraphs and road transport business. It was in
the context of those facts that the Supreme Court of Calcutta repelled the argument
advanced on behalf of the Secretary of State in these terms:

We are further of opinion that East India Company were not sovereigns, and,
therefore, could not claim all the exemption of a sovereign; and that they were not the
public servants of Government, and, therefore, did not fall under the principle of the
cases with regard to the liabilities of such persons; but they were a Company to whom
sovereign powers were delegated, and who traded on their own account and for their
own account and for their own benefit, and were engaged in transactions partly for the
purposes of Government, and partly on their own account, which without any delegation
of sovereign rights, might be carried on by private individuals. There is a great and clear
distinction between acts done in the exercise of what are usually termed sovereign
powers, and acts done in the conduct of undertakings which might be carried on by
private individuals without having such powers delegated to them: Moodaley v. East
India Company and Same v. Morton.

There should be no difficulty in holding that the State should be as much liable for tort in
respect of a tortious act committed by its servant within the scope of his employment and
functioning as such, as any other employer.

The immunity of the Crown in the United Kingdom was based on the old feudalistic
notions of justice, namely, that the King was incapable of doing a wrong, and, therefore,
of authorizing or instigating one, and that he could not be sued in his own courts. In
India, ever since the time of East India Company, the sovereign has been held liable to
be sued in tort or in contract, and the common law immunity never operated in India.

Now that we have, by our Constitution, established a Republican form of Government,

and one of the objectives is to establish a Socialistic State with its varied industrial and
other activities, employing a large army of servants, there is no justification, in principle,
or in public interest, that the State should not be held liable vicariously for the tortious
act of its servant. This Court has deliberately departed from the common law rule that a
civil servant cannot maintain a suit against the Crown.
In the case of State of Bihar v. Abdul Majid [(1954) SCR 786] this
Court has recognized the right of a government servant to sue the Government for
recovery of arrears of salary. When the rule of immunity in favors of the Crown, based
on common law in the United Kingdom, has disappeared from the land of its birth, there
is no legal warrant for holding that it has any validity in this country, particularly after
the Constitution.

As the cause of action in this case arose after the coming into effect of the Constitution,
in our opinion, it would be only recognizing the old established rule, going back to more
than 100 years at least, if we uphold the various liability of the State. Article 300 of the
Constitution itself has saved the right of Parliament or the legislature of a State to enact
such law as it may think fit and proper in this behalf. But so long as the legislature has
not expressed its intention to the contrary, it must be held that the law is what it has been
ever since the days of East India Company.

In Shivabhajan Durgaprasad v. Secretary of State for India, [ILR 28 Bom 314] this
point arose for the decision of the Bombay High Court. In that case, a suit had been
instituted against the Secretary of State in Council to recover damages on account of the
negligence of a Chief Constable with respect to goods seized; and the plaintiff‘s claim
was resisted by the Secretary of State in Council on the ground that no action lay. The
High Court upheld the plea raised by the defence on the ground that the Chief Constable
seized the goods not in obedience to an order of the executive Government, but in
performance of a statutory power vested in him by the Legislature.

The principle on which this decision was based was stated to be that where the duty to be
performed is imposed by law and not by the will of the party employing the agent, the
employer is not liable for the wrong done by the agent in such employment.

N. Nagendra Rao & Co. V. State of A.P.11 [(1994) 6 SCC 205]:

In this case, appellant‘s huge stocks of food grains and fertilizers were seized. He was
later found not guilty of black-marketing or adulteration. When he went to take the
delivery of the stock he found that the stock has been spoilt both in quality and quantity.
He then filed a suit for compensation which was granted in his favour by the Supreme
Court.

The court said that sovereign immunity was never available where the State was
involved in commercial or private function nor it is available where its officers are guilty
of interfering with life and liberty of a citizen not Warranted by law. Further, public
policy requires the court to exercise the power in law to compensate the owner where the
damage or loss is suffered by the negligence of officers of the State in respect of cause of
action for which suits are maintainable in a civil court. Since the seizure and confiscation
of appellant‘s goods was not in exercise of power which could be considered to be act of
State of which no cognizance could be taken by the civil court, the appellant‘s suit could
not be dismissed.

The Supreme Court held that when due to the negligent act of the officers of State a
citizen suffers any damage the State will be liable to pay compensation and the principle
of sovereign immunity of State will not absolve it from this liability.

In the context of modem concept of sovereignty (sovereignty now vests in the people)
the doctrine of ―sovereign immunity‖ stands diluted and the distinction between
sovereign and non-sovereign functions no longer exists. The legislature, the executive
and the judiciary have been created and constituted to serve the people. According to
modem thinking the State is treated in performance of its functions like a private
company. It is therefore obviously liable for negligence of its officers.

The court also made it clear that the ratio of Kasturi Lal is available to those rare and
limited cases where the statutory authority acts as a delegate of such function for which
it cannot be sued in court of law.

Chairman, Railway Board v. Chandrima Das AIR 2000 SC 988) :

In this case, a Bangladeshi woman was gang raped by railway employees in Yatri Niwas,
a railway building, at the Howarh Railway Station. The Supreme Court held that the
right to life contained in Art. 21 is available not only to a citizen of the country, but also
to every person who may not be a citizen of the country and a tourist coming to the
country. The Central Government was held liable to pay damages to the person wronged
by the Railway employees.

It was contended by the appellants that the liability under the law of torts would arise
only when the act complained of was performed in the course of official duty and since
‗rape‘ cannot be said to be an official act, the Central government would not be liable
vicariously.

The court rejecting this contention observed: ―The theory of sovereign power which was
propounded in Kasturi Lal case has yielded to new theories and is no longer available in
a welfare State. The functions of the State not only relate to the defence of the country or
the administration of justice, but they extend to many other spheres as, for example,
education, commercial, social, economic, political and even marital. These activities
cannot be said to be related to sovereign power.‖
It held: Running of the railways is a commercial activity. Establishing the Yatri Niwas at
various railway stations to provide lodging and boarding facilities to passengers on
payment of charges is a part of the commercial activity of the Union of India and this
activity cannot be equated with the exercise of sovereign power.

The employees of the Union of India who are deputed to run the Railways and to
manage the establishment, including the railway stations and the Yatri Niwas, are
essential components of the government machinery which carries on the commercial
activity. If any of such employees commits an act of tort, the Union Government, of
which they are the employees, can be held vicariously liable in damages to the person
wronged by these employees.

Law Commission of India, First Report (Liability of State in Tort), 1956

The Law Commission in its First Report recommended legislation prescribing State
Liability, as in England. It noted that it is necessary that the law should, as far as
possible, be made certain and definite instead of leaving it to courts to develop the law
according to the view of the judges. On the basis of that Report, a Bill entitled ‗The
Government (Liability in Tort) Bill, 1967‘ was introduced in the Parliament, but it failed
to become a law.

The Law Commission said that in the context of a welfare State it is necessary to
establish a just relation between the rights of the individual and the responsibilities of the
State. While the responsibilities of the State have increased, the increase in its activities
has led to a greater impact on the citizen. Public utilities are taken over by the State. The
State has established and intends to establish big factories and manage them. The State
carries on works departmentally. The doctrine of laissez faire - which leaves everyone to
look after himself to his best advantage has yielded place to the ideal of a ‗welfare State‘
- which implies that the State takes care of those who are unable to help themselves. The
Commission said that the Government should place itself into the same position as a
private employer, as nowadays it employs labour on a large scale (via public
corporations).

Thus, it should be subject to the same rights and duties as are imposed by statute. The
old distinction between sovereign and non-sovereign functions should no longer be
invoked to determine the liability of the State.

As Professor Friedman observes: ―It is now increasingly necessary to abandon the

lingering fiction of a legally indivisible State, and of a feudal conception of the Crown,
and to substitute for it the principle of legal liability where the State, either directly or
through incorporated public authorities, engages in activities of a commercial, industrial
or managerial character. The proper test is not an impracticable distinction between
governmental and nongovernmental functions, but the nature and form of the activity in
question.‖

Liability of the State in Cases:

 The State as employer should be liable for the torts committed by its employees
and agents while acting within the scope of their office or employment.
 The State should be liable for torts committed by an independent contractor only
in certain cases.
 The State should also be liable for torts where a corporation owned or controlled
by the State would be liable.
 The State should be subject to the general law liability for injury caused by
dangerous things (chattels).

The State should be entitled to raise the same defences which a citizen would be
entitled to raise under general law.

The Law Commission also recommended four exceptions to the rule of State
liability (i.e. the following defences should be made available to the State for any
act, neglect or default of its servants or agents)-
(i) Act of State - It means an act of the sovereign power directed against
another sovereign power or the subject of another sovereign power not
owing temporary allegiance, in pursuance of sovereign rights.
(ii) Judicial acts - It means acts done by judicial officers and persons executing
warrants and orders of judicial officers.

(iii) Acts done in the exercise of political functions of State e.g. foreign affairs;
diplomatic, consular and trade representation; war and peace; acts in emergency;
etc.

(iv) Acts done in relation to defence forces - Combatant activities of the Armed
Forces during the time of war; acts done in the exercise of the powers vested in
the Union for purpose of training or maintaining the efficiency of the Defence
Forces.
 DEFAMATION

(Q) Write a note on the defenses available in the tort of

defamation. [2015(3a)]
(Q) Essential elements of the tort of defamation. [2016(6a)]
(Q) A newspaper published the photograph of a married man accompanied by
the following words:

― Mr.Y the departmental store owner and Miss X whose engagement has
been announced.‖
The wife of Y file a suit of defamation against the Newspaper alleging that
the photograph and the accompanying words meant, and has been taken by
her friends to mean, that Mr. Y was unmarried and she had not been married
to him but had been living with him as his mistress. Newspaper pleads
innocence. Decide. [2018-6(b)]

(Q) Essential elements of Torts of defamation. [2019-1(b)]

Defamation: Every man has a right to live with dignity but when someone injures
the reputation of another person by exposing them to hatred, contempt by way of
writing, or speaking it is called defamation. In the case of Dixon v. Holden, it was
held that a man's reputation is an invaluable property and if their reputation is being
attacked then these losses far exceed the damage caused by property.

A man‘s reputation is considered valuable property and every man has a right to
protect his reputation. This right is acknowledged as an inherent personal right and is
a jus in rem i.e., a right good against all persons in the world. Defamation refers to
any oral or written statement made by a person which damages the reputation of
another person.

As per Black‘s Law Dictionary, defamation means ―The offence of injuring a

person‘s character, fame, or reputation by false and malicious statements‖. If the
statement made is written and is published, then it is ―libel‖. If the defamatory
statement is spoken, then it is a ―slander‖.
Defamation may be committed by either writing or by way of speech.

Libel: Libel is a form of defamation when made in form of permanent

writing, printing, caricature, etc

Slander: Slander is the publication of a defamatory statement in a transient form

i.e. way of speaking and gesture.

Winfield defined defamation as the publication of a statement that lowers the

reputation of a person in the estimation of the right-thinking member of society.

Difference between Libel/Slander:

Libel Slander

1. A libel is defamation that has been Slander is defamation in transient form

caused in permanent form i.e by way of speech or gesture
i.e writing, printing, picture, etc

2. It is a criminal offense as well as It is civil wrong only but the word

civil wrongs. would be considered a criminal offense
if it includes blasphemous, seditious in
nature.
3. It is an infringement of a right and A slander is actionable only when special
there is no need to prove the actual damage could be proved.
damage.
4. Libel shows greater deliberation to Slander may be uttered in the heat of
have malice intention to defame the moment and on sudden
somebody. provocation

5. It is addressed to the eyes. It is addressed to the ears.

Answer to the question no [2016-6(a)],[2019-1(b)]

Essential of defamation:-

(1) The statement must be false and defamatory.

(2) It must be referred to Plaintiff.
(3) The words must be published.

To the requirement of the words being defamatory, it depends upon how the normal
people in the society would perceive it. When the statement causes the feeling of
hatred, contempt or ridicule, fear, or dislike it is considered to be defamatory.

In the Sim v. Stretch (1932) case, when the plaintiff house-maid left the service
and joined the defendant. In the telegraph defendant published that ―Edith has
resumed her services with us today, please send us her belonging and the money
you borrowed and also her wages.

Plaintiff claimed damages by alleging that these words contain defamatory things
about him, which implies that his financial condition was not good to the extent
that he has to borrow money from his servant. In the above cases, it was held that
these words were not reasonably capable of any defamatory meaning.

Innuendo: Sometimes, the statement may prima facie be innocent (ordinary

meaning may not be defamatory) but because of some latent and secondary
meaning, it may be considered to be defamatory.

In Tolly v. J.S Fry & sons ltd (1931) AC 333: The defendant had advertised

‗Fry‗ Chocolate Creams‗ with the cartoon representing the claimant and verses
which referred to him by his name. The claimant was a well-known armature
golfer. His likeness was being exploited in order to promote the goods of another,
without permission and rewards.

It was held that the innuendo, that the plaintiff has prostituted his status for
advertising purpose which was supported by the facts. Therefore the
defendant is liable for his action.

Answer to the question no [2018-6(b)]

In the law of torts, the intention to defame the person is not necessary for

action. In the case of Cassidy v. Daily mirror newspaper ltd (1929), 2 KB

331,
The newspaper published a photograph that reads as ―Mr. M. Corrigen, the racecourse
owner and Miss ‗X‗ whose engagement has been announced.

In the above case, the defendant was sued to allege that the innuendo was that Mr.
Corrigen was not her husband and he lives with her in immoral cohabitation.‖ It was
held that the words conveyed defamatory meaning and damages were awarded.

The decision of the question no [2018-6(b)]

Sentence published in the newspaper would be perceived by the right person as Mr.
Y may not be married. Therefore the allegation made against the newspaper is
correct and the publication considered is defamatory in nature. Hence the
newspaper is liable for damage caused to the plaintiff.

Answer to question no [2015-3(a)]

Defense to the defamation:-

1. Justification and truth.

2. Fair comment
3. Privilege (Absolute or qualified).

The law will not permit a man to recover the damages with respect to the injury of
character which he either does not possess. (Mc Pherson v. Daniels ). The burden
of proof lies on the defendant to discharge the allegation made against him.

In Radhashyam Tiwari v. Eknath case :

In the above case, the defendant published a number of an article against the
public servant officer(Block development officer) alleging that officer adopted
corrupt and illegal means to acquired wealth and also in various other matters.

The defendant was unable to prove the facts published by him and held to be liable
for the damages caused to the plaintiff.

Fair Comments:

This defense is generally available to the editors, authors, critics, etc. The comments
mean critically analyzing the existing facts. It is the critical appreciation of
existing facts and not the invention of new facts. The word fair means it must
embrace honesty without malice and comments must be in the nature of public
interest.
Three essential components of fair comments are:
1. It must be a comment i.e. an expression of opinion rather than the assertion
of facts
2. It must be fair (without malice)
3. It must be published for the public interest.

*Thakur Kanti Ghosh v. Bina bhowmik 1953, 57, CWN 378;

The Amrit Bazar Patrika published which uses a sentence like a daylight
robbery and Bina Bhowmik‗s union which were factually incorrect.
On the merits, the learned judges held that the publication in question
contains a defamatory statement concerning the plaintiff personally. He
held further that the plea of justification must, on the evidence fail.
He also stated that the defendant has overstepped the limits of fair comments
and statement published by him is factually incorrect. Therefore the defense
of the fair comments was defeated.

Privilege can be either qualified or absolute in nature.

There are many occasions when it was recognized that the right of free
speech outweighs the plaintiff's right to reputation.
In that case, the law recognized such occasions as a privilege and the
defamatory statement made on such occasions is not actionable.
Absolute privilege: It is an absolute defense as under it no action lies for
the defamatory statement even though the statement is false and has been
made maliciously.

Absolute privilege is the followings:

1. Art 105(2) of the Indian constitution provided that statement made by the
members of either house of parliament and the report published under either
house of parliament.
2. In judicial proceedings, there could not be any action against the
judges, counsels, witnesses, and the parties.

Qualified privilege: Qualified privilege differ from absolute privilege in

two aspects :

1. The statement must be made without malice.

 2. The statement must be made on privileged occasions like
when the person who makes communication has an interest
or duty (social, legal, moral) to make it to the public.

*In R. K. Karanjia v. K.M.D Thackerdey,

In the above case, an article was published in Blitz, English weekly
against the 'House of Thackerdey' which states that the Plaintiff which
was the chairman of the 'Textile control board ' has exploited his position
to acquire enormous wealth by using unlawful and illegal means.
Defense of qualified privilege taken by the defendant and the plea of
qualified privilege was rejected on two grounds.
The element of duty in communicating the statement was missing. It was
held that the mere fact that the matter is of general public interest is not
enough and the person/newspaper must also have the duty to communicate.
The article was proved to be published maliciously. In the previous
occasions when the newspaper has published such kind of thing, the Plaintiff
had made the defendant editor apologies for the defamatory article.
In Radha Shyam Tiwari v. Eknath's case also the defense of qualified
privilege failed because the publication was made maliciously.

Prof. Imtiaz Ahmad v. Durdana Zamir (2009) 109 DRJ 357

Fact: Imtiaz Ahmad is a distinguished professor of Socio;ogy at Jawaharlal Nehru

University(JNU). A womannamed duranda Zameer filed a complaint before the
Crime Against Women(CAW) cell allegelly making defamatory statement agaist
him.
The excerpts of the complaint, where his name was recorded as ‗Imtiaz Ahmad
Ansari‘ according to the plaintiff amounted to his defamation and entitled him to
damages. He contends that he has been portrayed as a perpetetor of dowry demand
and in his name. Ansari has been deliberately added since ‗Ansari‘ belong to lower
community viz ‗Julaha ‘. He claimed that he was a renowed social psychologist
and because of the assertion made by the defendant in her complaint to CAW cell
and other authorities, his reputation received a severe dent in academic circles and
among his colleages and also towards the mammoth work that he has done for the
betterment of the society in general. The plaintiff claimed damage to the tune of 20
lac from the defendant.
Under law of defamation, the test of defamatory nature of a statement is its
tendency to incite an adverse opinion or feeling of other persons towards the
Plaintiff. A statement is to be judged by the standard of the ordinary, right-thinking
members of the society at the relevant time. The words must have resulted in the
Plaintiff to be shunned or evaded or with the feeling of hatred, contempt, ridicule,
fear, dislike or dis- esteem or to convey an imputation to him or disparaging him or
his office, profession, calling, trade or business.

Reputation of a man primarily and basically is the opinion of friends, relatives,

acquaintance or general public about a man. It is his esteem in the eyes of others.
The reputation spread by communication of thought and information from one to
another. Where a person alleges that his reputation has been damaged, it only
means he has been lowered in the eyes of right thinking persons of the society or
his friends/relatives. It is not enough for a person to sue for words, which merely
injure his feeling or cause annoyance to him. Injury to feeling of a man cannot be
made a basis for claiming of damages on the ground of defamation. Thus, the
words must be such, which prejudice a man‘s reputation and are so offensive so as
to lower a man's dignity in the eyes of others. Insult in itself is not a cause of action
for damages on the ground of defamation.

The plaintiffs submissions that adding of caste "Ansari" against his name was per
say defamatory is very strange. The plaintiff claims to be the professor of
sociology working for the betterment of the society.
Sociology has a notion and thought that "Ansari" was a caste of lower class since it
represents "Julaha‖ community, I can only take pity upon such highly respected
and qualified professors. Julaha means weavers. If those who weave clothes so that
men may dress themselves, are of lower caste than those who get dressed and are
ungrateful must be of much lower caste, even if they are professors. The
allegations of the plaintiff, who is a professor, are painful.

The Constitution of India does not recognize that caste of any person confers any
superiority or inferiority on him vis-a-vis others. The other imputations made to the
defendant are also not defamatory in nature. It is not the case of the plaintiff that he
was not present at the marriage. It is the case of the plaintiff himself that he
attended the marriage of the defendant. If it is stated that a Hungama was created
by many from in-laws of the defendant, including the plaintiff, that does not mean
that the defendant made defamatory imputations against the plaintiff or the
defendant made a statement to cause an adverse opinion or hatred feelings of other
persons towards the plaintiff. As has already been observed above the statements to
be judged by the standard of an ordinary person.
 Consumer Protection Acts,1986

Previous Year Question on “Consumer”:

(Q). Who is the consumer under the Consumer Protection Act, 1986 ?
[2015(7(a))]
(Q). Satish buys a car and drives it as a taxi to earn his livelihood. The car breaks
down often due to manufacturing defects.
Can Satish sue the manufacturer for supply of defective goods? [2016(8(b))]

(Q). Define the expression "Consumer" in section 2(1)(d) of the consumer

protection act, 1986. Discuss in the light of Amendment Act, 1993, the meaning
and ambit of one expression " any commercial purpose" in the said definition.
Whether a person who buys a car and plies it as a taxi himself for earning his
livelihood, would be treated as a " commercial purpose" and he ceass to be
consumer for the purpose of the Act. Discuss with the help of case law. [2018(8)].

(Q). What does the term "Consumer" mean under the Consumer Protection Act,
1986 ? Which of the following is and which is not a consumer under the Act: a
user of goods ; a buyer of goods for resale ; a buyer of goods for commercial
purposes ? [2019(7(a))].
(Q). Mohan buys a car and drives it as a taxi to earn his livelihood. The car breaks
down often due to manufacturing defects. Can Mohan sue the manufacturer for
supply of defective goods ? [2019(7(b))].

Previous Year Question on Services and Medical Negligence:

(Q). "...... a medical practitioner was not to be held liable simple because things
went wrong from the mischance or misadventures or through an error of judgement
in choosing one reasonable course of treatment in preferences of another. "
Elucidate this observation of Lord Denning with respect to medical negligence
cases. 2015(7(b))].

(Q). Write a note on the ' the definition of service' under the Consumer Protection
Act, 1986. 2015(8(a))].
(Q). Write a brief note on the decision of the supreme court in Indian Medical
Association v. V. P Shantha (1995) 6 SSC 651, which settled the dispute
regarding
applicability of the Act to persons engaged in medical profession either as private
practitioners or as Government Doctors working in Hospitals or Government
Dispensaries. 2015(8(b))].

(Q)Discuss the applicability of the Consumer Protection Act,1986 to cases of

medical negligence in India. Also explain, with the help of landmark cases in
India, the tests for determining medical negligence, highlighting the Shift from the
Bolam Tests to Bolitho test.[2016(7)].

(Q)Decide the following cases under the Consumer Protection Act,1986

Amit owns a plot of [Link] enters into an agreement with a builder for
construction of an appartment building on his plot and sharing of construted area
between him and he builder. The builder constructs contrary to the specifications
under the agreement and also failed to get the necessary clearance from the
municipal authorities. Can Amit sue the builder for deficiency in services ?
[2016(8(a))].

(Q). Aarti went to a surgeon for operation to remove stone from her kidney. The
surgeon Dr. X performed the operation but left a gauze piece in the abdominal
cavity during operation. Peritonitis developed which led to a second surgery being
performed on her. She sues Dr. X for negligence. Dr. X pleads volenti non fit
injuria. Decide with the help of relevant case law. .[2017(7)].

(Q). Define ' Service' under the Consumer Protection Act, 1986. .[2017(8(a))]
(Q). 'Services' rendered to patients 'free of charge' by doctors and hospitals are
excluded from the exclusionary clause in Section 2(1)(o) of the Consumer
Protection Act,1986. Comment with reference to the case law on medical
negligence .[2017(8(b))]

(Q).Define " Service" under section 2(1)(o) of the consumer protection act, 1986.
Whether and, if so, in what circumstances, a medical practitioner and a
hospital/nursing home can be regarded as rendering 'service' under the Consumer
Protection Act. [2018(7)].
(Q). A minor child having high fewer was taken to a hospital where he was given
certain medicine and intravenous injection by an unqualified nurse and no prior
test was conducted. The child suffered cardiac arrest. Oxygen was not given due to
its unavailability in hospital. The child suffered irreparable brain damage and was
permanently incapacitated.
Discuss whether the parents of the child may sue the hospital for damages for
negligence in a Civil court or for deficiency in service in the consumer forum.
Explain whether the services rendered by medical professionals and hospitals
amount to ' Service' under the Consumer Protection Act. Refer to the relevant
judicial decisions. [2019(8)].

Consumer protection Act 1986

According to Section 2(d), '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 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 payments, when such services are availed of with the
approval of the first-mentioned person;
 [Explanation: For the purposes of 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-employments;] The
definition of the term 'consumer' given in clause (d) of section 2(1) of the Act is
comprehensive one so as to cover not only consumer of goods but also
consumer of services.

The definition is wide enough to include in consumer not only the person who
buys any goods for consideration but also any user of such goods with the
approval of the buyer. Similarly, it covers any person who hires or avails of any
services for consideration and also includes any beneficiary of such services,
when availed with the approval of the hirer. Thus, any user of goods or any
beneficiary of services. other than the actual buyer or hirer, is a consumer for
the purpose of this Act and he is competent to make a complaint before the
Consumer Redressal Forum under this Act.

The Supreme Court in its decision in Lucknow Development Authority

v. M. K. Gupta [(1994) 1 SCC 243] noted that the word 'consumer' is
comprehensive expression.

It extends for a person who buys any commodity either as eatable or otherwise
from a shop, business house, corporation, store, fair-price shop to use it for
private use or consumption and not for a commercial purpose. The term
'consumer' also includes any person who uses the goods with the permission of
the buyer though he is not himself buyer.

CONSUMER OF GOODS Under sub-clause (i) of section 2(1)(d), a

consumer for the purpose of goods means any person, who

(a). 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

(b). Includes any user of such goods other than the person who buys them,
when such use is made with the approval of the buyer, but

(c). Does not include any person who obtains such goods for resale or for any
commercial purpose.
Commercial purpose does not include use by a person of goods bought and used
by him exclusively for the purpose of earning his livelihood by means of self-
employment.

The above provision reveals that a person claiming himself as a consumer

should satisfy that-

(i) There must be a sale transaction between the seller and the buyer;
(ii) The sale must be of goods; the buying of goods must be for
consideration;
(iii) The consideration has been paid or promised or partly paid and partly
promised, or under any system of deferred payment; and
(iv) The user of the goods may also be a consumer when such use is made
with the approval of the buyer.

However, the term consumer does not include a person who obtains any goods
for resale or for any commercial purpose. It is obvious that the parliament
intended to restrict the benefits of the Act to ordinary consumers purchasing
goods wither for own consumption or even for use in some small venture which
they may have embarked upon in order to make a living as distinct from large
scale manufacturing or processing activity carried on for profit.

Consumer of Services

The second category of consumer laid down under the act is that of hirer or user
of services. Under sub-clause (ii) of Section 2(1)(d) of the Act, a consumer for
the purpose of services means any person, who

(a). 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

(b). Includes any beneficiary of such services other than the person who hires or
avails of them when such services are availed of with the approval of the hirer;
but.

(c). Does not include a person who avails of such services for nay commercial
purpose. Commercial purpose does not include a person of services availed by
him exclusively for the purpose of earning his livelihood, by means of self-
employment.

It is not necessary to pay the consideration immediately; it may be paid

afterwards or in installments. A student hiring the services of the university on
payment of fees for appearing at the examination; or passenger getting railway
reservation after payment is hiring service for consideration, is a consumer of
services.

Service

The term services according to sec. 2(1)(o) 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 lodging or both,
entertainment, amusement or the purveying a news or other information, but
does not include the rendering of any services free of charge or under a
contract of personal service.

Deficiency, according to sec. 2(1)(g), means any fault, imperfection,

shortcoming or inadequacy in the quality, nature and manner of performance
which is required to be maintained to be performed by a person in pursuance of
a contract or otherwise in relation to any service.

In Dist. Engineer Telecom., Sriganganagar v. Dr. Tej Narain Sharma, III

(1995) C.P.C. 225, the dues of the telephone bill had been deposited by the
complaint after the due date, 22 days after this deposit the telephone was
disconnected without even remaining the complaint on phone. The phone
remained disconnected for 15 days. The disconnection was held to be due to the
negligence and same amounted to deficiency in services. The compensation was
awarded for mental distress, agony and loss of reputation.

In Union of India v. Nathmal Hansaria, I (1997) C.P.J. 20 (N.C.), the

daughter of the complainant, fell down and died while passing through inter-
connecting passage in the Tinsukhia Mail going from Delhi to Guwahati. The
passage was not protected by any grills, etc. The State Commission awarded
compensation of Rs. 2 lacs for death of girl and Rs. 25,000/- for mental agony,
etc. to the parents of the deceased on account of deficiency in service by the
opposite party, Railways. The decision was upheld by the National
Commission. I

In a significant ruling in Vasantha P. Nair v. Smt. V.P. Nair, I (1991) C.P.J.

685, the National Commission upheld the decision of the Kerala State
Commission which said that a patient is a consumer and the medical assistance
was a service and therefore, in the event of any deficiency in the performance of
medical service, the consumer courts can have the jurisdiction. It was further
observed that the medical officers service was not a personal service so as to
constitute an exception to the application of the Consumer protection Act.

Supreme Court in its landmark decision in Indian Medical Association v. V.P.

Shantha and others, III (1995) C.P.J. I (S.C.), has held that patients
aggrieved by any deficiency in treatment, from both private clinics and Govt.
hospitals, are entitled to seek damages under the Consumer Protection Act.

Complainant
Section 2(1)(b) defines complainant. It means:
(i) a consumer; or
(ii) any voluntary consumer association registered under the Companies Act,
1956 (1 of 1956) or under any other law for the time being in force; or
(iii) the Central Government or any State Government; or
(iv) one or more consumers, where there are numerous consumers having the
same interest;
(v) in case of death of a consumer, his legal heir or representative.
So, the literal meaning of complainant is a person who has some grievance or
injury and makes an allegation against another. Section 2(1)(b) has a wider
connotation and not just its literal meaning. It includes not only a consumer but
also a voluntary consumer association registered under law under Central/State
Government or one or more consumers who or which makes the complaint.

Complaint

It means a grievance, distress, dissatisfaction, objection, wrong or injury. Under

the Act, the term complaint has specified meaning and is limited by the
definition given in section 2(1)(c), by which it means any allegation by the
complainant in writing with a view to obtaining any relief in regard to the
following matters:
"(c) "complaint" means any allegation in writing made by a complainant that-
(i) an unfair trade practice or a restrictive trade practice has been adopted by
any trader or service provider;
(ii) the goods bought by him or agreed to be bought by him suffer from one or
more defects;
(iii) the services hired or availed of or agreed to be hired or availed of by him
suffer from deficiency in any respect;
(iv) a trader or the service provider, as the case may be, has charged for the
goods or for the services mentioned in the complaint, a price in excess of the
price-
(a) fixed by or under any law for the time being in force;
(b) displayed on the goods or any package containing such goods;
(c) displayed on the price list exhibited by him by or under any law for the time
being in force;
(d) agreed between the parties;
(v) goods which will be hazardous to life and safety when used are being
offered for sale to the public,-
(a) in contravention of any standards relating to safety of such goods as required
to be complied with, by or under any law for the time being in force;
(b) if the trader could have known with due diligence that the goods so offered
are unsafe to the public;
(vi) services which are hazardous or likely to be hazardous to life and safety of
the public when used, are being offered by the service provider which such
person could have known with due diligence to be injurious to life and safety;
with a view to obtaining any relief provided by or under this Act;"
So, the complaint under the Consumer Protection Act must contain allegation in
writing with a view to obtain relief only in relation to the following matters-
(a) unfair trade practice adopted by a trader;
(b) defects in purchased goods;
(c) deficiency in services hired;
(d) charging of price in excess; and
(e) goods hazardous to life and property without giving any information as
required by the provisions of any law.
In Sujit Kumar Banerjee v. Rameshwaran,2008 : AIR 2009 SC 1188,

The Apex Court held that the agreement between the parties is an agreement
for construction of a residential building and delivery of an agreed percentage
of the constructed area to the landowners and not a joint venture agreement.
Consequently, the appellant is a consumer and respondents are 'service
providers" and the complaint of the appellant is maintainable.

'Goods' suffer from defects

The Consumer Protection Act defines the term 'goods' in section 2(1)(i) as it
has been defined in the section 2(7) of the Sales of Goods Act, 1930 which
means - Goods is every kind of movable property other than actionable claims
and money and includes stock and shares, growing crops, grass and things
attached to or forming part of the land which are agreed to be severed before
sale or under the contract of sale.
Defect has been defined in Consumer Protection Act in 2(1)(f) as - any fault,
imperfection or shortcoming in the quality, quantity, potency, purity or standard
which is required to be maintained by or under any law for the time being in
force or implied, or as is claimed by the trader in any manner whatsoever in
relation to any goods.
Defect in goods means lack or absence of something essential for its
completeness. If a seller fails to deliver the goods which he agreed to sell.

Deficiency in service
In order to succeed in an action on the 'deficiency in service' there is a need to
have service. It has been defined in section 2(1)(o) as-
'"service" means service of any description which is made available to potential
users and includes, but not limited to, the provision of facilities in connection
with banking, financing insurance, transport, processing, supply of electrical or
other energy, board or lodging 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 question emerged after passing of the Act whether 'professional' services
like medical, have also been included in the above definition of 'service'.
The Supreme Court in the case Indian Medical Assn. v. V.P. Shantha, held
that the 'potential users' mentioned in the definition were employed to
emphasize services which are in public use and thereby to cover all professions.
In the section 2(1)(o) 'free of charge' means when any organization or person
who renders service without any charge whatsoever to every person availing of
the service would not fall within the ambit of service and consequently, would
be exempted from liability.
Another expression in the section "contract of personal service" cannot be
confined to contracts or employment of domestic servants only. The expression
'personal service' has a well-known connotation and has been construed in the
context of the right to seek enforcement of such a contract under the Specific
Relief Act.

AUTHORITIES FOR CONSUMER PROTECTION

The Consumer Protection Act, 1986 is a social benefit oriented legislation and
the provisions of the Act have to be construed as broadly as possible in favour
of the consumer to achieve the purpose of the enactment but without doing
violence to its language.

According to the Preamble, the purpose of the Act is:

To provide for the better protection of the interests of consumers and for that
purpose to make provision for the establishment of consumer councils and other
authorities for the settlement of consumers disputes and for matters connected
therewith.

The object and purpose of enacting the Act is to render simple, inexpensive
and speedy remedy to the consumers with complaints against defective goods
and deficient services and for that a quasi-judicial machinery has been sought to
be set up at the District, State and Central levels. These quasi-judicial bodies are
required to observe the principles of natural justice and have been empowered
to give relief of a specific nature and to award, wherever appropriate,
compensation to consumers. Penalties for non-compliance with the orders given
by the quasi-judicial bodies have also been provided.
 Under the Consumer Protection Act, no Court fee has to be paid and the
decision on the complaint is more quicker, as the court can evolve a summary
procedure in disposing of the complaint. Under the Act, the Consumer Disputes
Redressal agencies, which have been set up are:

1. Consumer Disputes Redressal Forum to be known as District Forum.

2. Consumer Disputes Redressal Commission to be known as State Commission

3. National Consumer Disputes Redressal Commission known as National

Commission

Answer to Question No 2015(7)(a),2015(8)(a), 2016(8)(a),2017(8)(a):

Faqir Chand Gulati v. Uppal Agencies Private Limited (2008) 10 SCC 345

This appeal is against the order dated 3-2-2004 passed by the National Consumer
Disputes Redressal Commission (―the Commission‖) in Revision Petition No.
1878 of 2000. It relates to the question whether a landowner, who enters into an
agreement with a builder, for construction of an apartment building and for sharing
of the constructed area, is a ―consumer‖ entitled to maintain a complaint against
the builder as a service provider under the Consumer Protection Act, 1986.

The appellant (―the landowner‖) alleges that the first respondent (―the builder‖)
secured sanction of the plan for construction from Municipal Corporation of Delhi
(for short ―MCD‖) but made several unauthorised deviations during construction,
resulting in several deviation notices from MCD.

The District Forum dismissed the complaint by order dated 10-5-1996 as not
maintainable under the Act, holding that the appellant was not a ―consumer‖ as
defined in Section 2(1)(d)(ii) of the Act. It held that the agreement between the
parties created mutual rights and obligations with a provision that in the event of
breach of any condition, the affected party shall have the right of specific
performance and such an agreement cannot be construed as a contract for
hiring/availing a service, for consideration by a consumer.

The appellant filed an appeal against the order of the District Forum and the said
appeal was dismissed by the State Commission, Delhi, by order dated 4-10-2000.
The State Commission held that the agreement between the parties, termed as a
collaboration agreement, was in the nature of a joint venture or agreement to
collaborate; that the agreement contemplated ―sharing‖ of constructed area, that is
the entire ground floor of the building by the landowner and the remaining area by
the builder; that the agreement did not have any element of hiring any services; and
that, therefore, the appellant was not a ―consumer‖ and the builder was not a
―service-provider‖.

For this purpose, it also relied on the decision of the

National Commission in C. Narasimha Rao v. K.R. Neelakandan (1994) 1 CPJ
160 and its own decision in Har Sarup Gupta v. Kailash Nath & Associates,
(1995) 2 CPJ 275

The appellant filed a revision petition before the National Commission. The
appellant challenged the finding that the complaint was not maintainable. He also
contended that as the builder had failed to secure and furnish the completion
certificate and C&D forms (that is property tax assessment listing) from MCD, his
complaint could not have been dismissed. He also submitted that in view of the
violations, MCD had demolished certain portions of the structure and was insisting
upon the other deviations which were beyond compoundable limits to be rectified;
and that MCD was refusing to issue the completion certificate and C&D forms
without those rectifications; and that the prayer for delivery of completion
certificate and C&D forms required the builder to rectify all defects and bring the
deviations within permissible limits and secured completion certificate and C&D
forms. He pointed out that in the absence of completion certificate and C&D
forms, he was facing threats of demolition apart from harassment from MCD.

The National Commission dismissed the revision petition by order dated 3-2-2004.
The order extracted the relevant provisions of the agreement in extenso and then
proceeded to reject the petition by merely observing that the agreement was in the
nature of a joint venture and transaction did not have any element of hiring the
services of the builder within the meaning of Section 2(1)(d)(ii) of the Act and that
the District Forum and the State Commission had rightly held that the appellant
was not a consumer. The said order is challenged in this appeal by special leave.

Section 14 enumerates the reliefs that can be granted by a redressal agency

to the complainant if he satisfies the agency about the defect in goods or
deficiency in service.
Two of the reliefs that can be granted by the Forum, if it is satisfied that any of the
allegations contained in the complaint about the deficiency in the service are
proved, are, a direction to the opposite party to remove the deficiencies in the
service in question and a direction to pay compensation to the consumer for any
loss or injury suffered by him.

Section 3 provides that the provisions of the Act shall be in addition and not in
derogation of the provisions of any other law for the time being in force. Any
allegation in writing made by the complainant that the services hired or availed of
or agreed to be hired or availed of by him suffered from deficiency in any respect,
with a view to obtaining any relief provided for by or under the Act,
is a ―complaint” under Section 2(1)(c) of the Act.

The terms “consumer”, “deficiency” and “service” defined in clauses (d), (g)
and (o) of Section 2(1) of the Act as it stood at the time when the appellant
approached the District Forum in 1994 are extracted below:

―2. (1)(d) “consumer” means any person who,-

(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;
(g) “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;
(o) “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
lodging 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;‖

Contentions

The appellant contends that though the agreement is captioned as ―collaboration

agreement‖, it is not a joint venture as assumed by the State Commission and
National Commission but an agreement under which the builder agreed to make a
housing construction for the landowner and, therefore, the activity of the builder
squarely falls within the definition of ―service”.

According to him, the fact that he entered into an agreement making available the
plot for construction of a three-storeyed building and agreeing to share the building
after construction and receive towards his share the ground floor of the building
plus Rs 8 lakhs did not amount to entering into a joint venture to share the profits
and losses.

On the other hand, the respondent contended that the agreement was for
collaboration in the nature of a joint venture which required the owner to
contribute the land and the builder to contribute the funds for construction of a
building and thereafter share the construction, that is, ground floor with
corresponding undivided share to the owner and upper floors with corresponding
undivided share to the builder, and that it was in the nature of a single business
adventure under which the parties agreed to share the benefits.

In Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243

To begin with the Preamble of the Act, which can afford useful assistance
to ascertain the legislative intention, it was enacted, ‗to provide for the protection
of the interest of consumers‘. Use of the word ‗protection‘ furnishes key to the
minds of makers of the Act. Various definitions and provisions which elaborately
attempt to achieve this objective have to be construed in this light without
departing from the settled view that a Preamble cannot control otherwise plain
meaning of a provision.

In fact the law meets long felt necessity of protecting the common man from such
wrongs for which the remedy under ordinary law for various reasons has become
illusory. Various legislations and regulations permitting the State to intervene and
protect interest of the consumers have become a haven for unscrupulous ones and
the enforcement machinery either does not move or it moves ineffectively,
inefficiently and for reasons which are not necessary to be stated. The importance
of the Act lies in promoting welfare of the society by enabling the consumer to
participate directly in the market economy.

It attempts to remove the helplessness of a consumer which he faces against

powerful business, described as, ‗a network of rackets‘ or a society in which,
‗producers have secured power‘ to ‗rob the rest‘ and the might of public bodies
which are degenerating into storehouses of inaction where papers do not move
from one desk to another as a matter of duty and responsibility but for extraneous
consideration leaving the common man helpless, bewildered and shocked. The
malady is becoming so rampant, widespread and deep that the society instead of
bothering, complaining and fighting against it, is accepting it as part of life. The
enactment in these unbelievable yet harsh realities appears to be a silver lining,
which may in course of time succeed in checking the rot. A scrutiny of various
definitions such as ‗consumer‘, ‗service‘, ‗trader‘, ‗unfair trade practice‘ indicates
that legislature has attempted to widen the reach of the Act.

Each of these definitions are in two parts, one, explanatory and the other
expandatory. The explanatory or the main part itself uses expressions of wide
amplitude indicating clearly its wide sweep then its ambit is widened to such things
which otherwise would have been beyond its natural import.‖

This Court next considered the meaning of the word ―service”. Thereafter, this
Court dealt with the question whether ―service‖ included housing construction,
even before the inclusion of ―housing construction‖ in the definition of “service”
by Act 50 of 1993 with effect from 18-6-1993. This Court observed: (M.K.
Gupta case)
What is the meaning of the word ‗service‘? Does it extend to deficiency in the
building of a house or flat? Can a complaint be filed under the Act against the
statutory authority or a builder or contractor for any deficiency in respect of such
property. The answer to all this shall depend on understanding of the word
‗service‘. The term has variety of meanings. It may mean any benefit or any act
resulting in promoting interest or happiness. It may be contractual, professional,
public, domestic, legal, statutory, etc. The concept of service thus is very wide.

As pointed out earlier the entire purpose of widening the definition in 1993 is to
include in it not only day to day buying and selling activity undertaken by a
common man but even such activities which are otherwise not commercial in
nature yet they partake of a character in which some benefit is conferred on the
consumer. Construction of a house or flat is for the benefit of person for whom it is
constructed. He may do it himself or hire services of a builder or contractor. The
latter being for consideration is service as defined in the Act.

When possession of property is not delivered within stipulated period the delay so
caused is denial of service. Such disputes or claims are not in respect of
immovable property as argued but deficiency in rendering of service of particular
standard, quality or grade. Such deficiencies or omissions are defined in sub-clause
(ii) of clause (r) of Section 2 as unfair trade practice.

So any service except when it is free of charge or under a constraint of personal

service is included in it. Since housing activity is a service it was covered in the
clause as it stood before 1993.”

But we are concerned with a third hybrid category which is popularly called as
―joint-venture agreements‖ or ―development agreements‖ or ―collaboration
agreements‖ between a landholder and a builder. In such transactions, the
landholder provides the land. The builder puts up a building. Thereafter, the
landowner and builder share the constructed area. The builder delivers the
―owner‘s share‖ to the landholder and retains the ―builder‘s share‖. The landholder
sells/transfers undivided share(s) in the land corresponding to the builder‘s share
of the building to the builder or his nominees.

This Court had occasion to consider the nature of ―joint-venture” in New

Horizons Ltd. v. Union of India [(1995) 1 SCC 478]. This Court held:
The expression ‗joint venture‟ is more frequently used in the United States. It
connotes a legal entity in the nature of a partnership engaged in the joint
undertaking of a particular transaction for mutual profit or an association of
persons or companies jointly undertaking some commercial enterprise wherein all
contribute assets and share risks.

What then is the nature of the agreement between the appellant and the first
respondent? The appellant is the owner of the land. He wants a new house, but is
not able to construct a new house for himself either on account of paucity of funds
or lack of expertise or resources. He, therefore, enters into an agreement with the
builder. He asks the builder to construct a house and give it to him. He says that as
he does not have the money to pay for the construction and will, therefore, permit
the builder to construct and own additional floor(s) as consideration. He also
agrees to transfer an undivided share in the land corresponding to the additional
floor(s) which falls to the share of the builder.

The basic underlying purpose of the agreement is the construction of a house or an

apartment (ground floor) in accordance with the specifications, by the builder for
the owner, the consideration for such construction being the transfer of undivided
share in land to the builder and grant of permission to the builder to construct two
floors. Such agreement whether called as a ―collaboration agreement‖ or a ―joint
venture agreement‖, is not, however, a ―joint venture‖.

There is a consideration for such construction, flowing from the landowner to the
builder (in the form of sale of an undivided share in the land and permission to
construct and own the upper floors). To adjust the value of the extent of land to be
transferred, there is also payment of cash consideration by the builder. But the
important aspect is the availment of services of the builder by the landowner for a
house construction (construction of the owner‘s share of the building) for a
consideration. To that extent, the landowner is a consumer, the builder is a
service provider and if there is deficiency in service in regard to construction, the
dispute raised by the landowner will be a consumer dispute.

The nature and true purpose of a document has to be determined with reference to
the terms of the document, which express the intention of the parties. Therefore,
the use of the words “joint venture” or “collaboration” in the title of an
agreement or even in the body of the agreement will not make the transaction
a joint venture, if there are no provisions for shared control of interest or
enterprise and shared liability for losses.

The completion certificate and C&D forms will not be issued if the building
constructed is contrary to the bye-laws and sanctioned plan or if the deviations are
beyond the permissible compoundable limits. The agreement clearly contemplates
the builder completing the construction and securing completion certificate. The
agreement, in fact, refers to the possibility of deviations and provides that if there
are deviations, the builder will have to pay the penalties, that is, do whatever is
necessary to get the same regularized.

The District Forum, the State Commission and the National Commission
committed a serious error in wrongly assuming that agreements of this nature
being in the nature of joint venture are outside the scope of consumer disputes.

The District Forum and the National Commission did not examine the matter with
reference to facts. The State Commission held that the complaint was not
maintainable but purported to consider the factual question in a half-hearted and
casual manner. The matter will now have to go back to the District Forum for
deciding the matter on merits.

Answer to Question: 2015(8)(b),2016(8)(a),2017(8)(b),2018(7),2019(8)

Indian Medical Association v. V. P. Shantha AIR 1996 SC 550

These appeals, special leave petitions and the writ petition raise a common
question, viz., whether and, if so, in what circumstances, a medical practitioner
can be regarded as rendering „service‟ under section 2(1)(o) of the Consumer
Protection Act, 1986 (hereinafter referred to as ‗the Act‘). Connected with this
question is the question whether the service rendered at a hospital/nursing home
can be regarded as „service‟ under section 2(1)(o) of the Act.

―2.(1)(d) „consumer‟ means any person who,—

(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 service 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.‖
―2.(1)(o) „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 lodging or both, housing construction, entertainment, amusement or the
purveying of news or other information, but does not include rendering of any
service free of charge or under a contract of personal service;‖
The words ―or avails of” after the word „hires‟ in section 2(1)(d)(ii) and the
words ―housing construction” in section 2(1)(o) were inserted by Act 50 of 1993.

The definition of ‗service‟ in section 2(1)(o) of the Act can be split up into three
parts - the main part, the inclusionary part and the exclusionary part. The main part
is explanatory in nature and defines service to mean service of any description
which is made available to the potential users. The inclusionary part expressly
includes the provision of facilities in connection with banking, financing,
insurance, transport, processing, supply of electrical or other energy, board or
lodging or both, housing construction, entertainment, amusement or the purveying
of news or other information. The exclusionary part excludes rendering of any
service free of charge or under a contract of personal service.

In Lucknow Development Authority v. M.K. Gupta:

It has been contended that in law there is a distinction between a profession and an
occupation and that while a person engaged in an occupation renders service which
falls within the ambit of section 2(1)(o), the service rendered by a person
belonging to a profession does not fall within the ambit of the said provision and,
therefore, medical practitioners who belong to the medical profession are not
covered by the provisions of the Act.

Definition of a ‗profession‘, Scrutton L.J. has said „profession‟ in the present use
of language involves the idea of an occupation requiring either purely intellectual
skill, or of manual skill controlled, as in painting and sculpture, or surgery, by the
intellectual skill of the operator, as distinguished from an occupation which is
substantially the production or sale or arrangement for the production or sale of
commodities. The line of demarcation may vary from time to time.
The word ‗profession‘ used to be confined to the three learned professions, the
Church,Medicine and Law.

According to Rupert M. Jackson and John L. Powell, the occupations which are
regarded as professions have four characteristics, viz.
(i) the nature of the work which is skilled and specialized and a substantial part is
mental rather than manual;
(ii) commitment to moral principles which go beyond the general duty of honesty
and a wider duty to community which may transcend the duty to a particular client
or patient;
(iii) professional association which regulates admission and seeks to uphold the
standards of the profession through professional codes on matters of conduct and
ethics; and
(iv) high status in the community.

In the matter of professional liability, professions differ from other occupations

for the reason that professions operate in spheres where success cannot be achieved
in every case and very often success or failure depends upon factors beyond the
professional man‘s control. In devising a rational approach to professional liability
which must provide proper protection to the consumer while allowing for the
factors mentioned above, the approach of the courts is to require that professional
men should possess a certain minimum degree of competence and that they should
exercise reasonable care in the discharge of their duties. In general, a professional
man owes to his client a duty in tort as well as in contract to exercise reasonable
care in giving advice or performing services.

It would thus appear that medical practitioners, though belonging to the medical
profession, are not immune from a claim for damages on the ground of negligence.
The fact that they are governed by the Indian Medical Council Act and are subject
to the disciplinary control of Medical Council of India and/or State Medical
Councils is no solace to the person who has suffered due to their negligence and
the right of such person to seek redress is not affected.

We are, therefore, unable to subscribe to the view that merely because medical
practitioners belong to the medical profession they are outside the purview of the
provisions of the Act and the services rendered by medical practitioners are not
covered by Section 2(1)(o) of the Act.

Shri Harish Salve, appearing for the Indian Medical Association, has urged that
having regard to the expression ―which is made available to potential users‖
contained in section 2(1)(o) of the Act, medical practitioners are not contemplated
by Parliament to be covered within the provisions of the Act.

Shri Harish Salve has also placed reliance on the definition of the expression
‗deficiency‘ as contained in section 2(1)(g) of the Act which provides as follows:

2. (1)(g) „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;

The submission of Shri Salve is that under the said clause, the deficiency with
regard to fault, imperfection, shortcoming or inadequacy in respect of a service has
to be ascertained on the basis of certain norms relating to quality, nature and
manner of performance and that medical services rendered by a medical
practitioner cannot be judged on the basis of any fixed norms and, therefore, a
medical practitioner cannot be said to have been covered by the expression
‗service‘ as defined in section 2(1)(o).

We are unable to agree.

While construing the scope of the provisions of the Act in the context of deficiency
in service it would be relevant to take note of the provisions contained in section
14 of the Act which indicate the reliefs that can be granted on a complaint filed
under the Act. In respect of deficiency in service, the following reliefs can be
granted:

(i) Return of the charges paid by the complainant. [clause (c)]

(ii) payment of such amount as may be awarded as compensation to the
consumer
for any loss or injury suffered by the consumer due to the negligence of
the opposite party. [clause (d)]
(iii) Removal of the defects or deficiencies in the services in question. [Clause
(e)]

Section 14(1)(d) would, therefore, indicate that the compensation to be

awarded is for loss or injury suffered by the consumer due to the negligence
of the opposite party. A determination about deficiency in service for the
purpose of section 2(1)(g) has, therefore, to be made by applying the same test
as is applied in an action for damages for negligence.

It is, therefore, not possible to hold that in view of the definition of „deficiency‟
as contained in section 2(1)(g), medical practitioners must be treated to be
excluded from the ambit of the Act and the service rendered by them is not
covered under section 2(1)(o).

Shri Salve has urged that the relationship between a medical practitioner and
the patient is of trust and confidence and, therefore, it is in the nature of a
contract of personal service and the service rendered by the medical practitioner
to the patient is not ‗service‘ under section 2(1)(o) of the Act.

This contention of Shri Salve ignores the well-recognised distinction between a

―contract of service” and a ―contract for services‖. [Dharangadhara
Chemical Works Ltd. v. State of Saurashtra, AIR 1957 SC 264].

A ―contract for services‖ implies a contract whereby one party undertakes to

render services e.g. professional or technical services, to or for another in the
performance of which he is not subject to detailed direction and control but
exercises professional or technical skill and uses his own knowledge
and discretion. A ―contract of service‖ implies relationship of master and
servant and involves an obligation to obey orders in the work to be performed
and as to its mode and manner of performance.

We entertain no doubt that Parliamentary draftsman was aware of this well

accepted distinction between ―contract of service‖ and ―contract for services‖
and has deliberately chosen the expression “contract of service” instead of
the expression “contract for services”, in the exclusionary part of the
definition of ‗service‘ in section 2(1)(o). The expression ―contract of personal
service‖ in the exclusionary part of section 2(1)(o) must, therefore, be construed
as excluding the services rendered by an employee to his employer under the
contract of personal service from the ambit of the expression ‗service‘.

It is no doubt true that the relationship between a medical practitioner and a

patient carries within it a certain degree of mutual confidence and trust
and, therefore, the services rendered by the medical practitioner can be regarded
as services of personal nature but since there is no relationship of master and
servant between the doctor and the patient, the contract between the medical
practitioner and his patient cannot be treated as a contract of personal service
but is a contract for services and the service rendered by the medical
practitioner to his patient under such a contract is not covered by the
exclusionary part of the definition of ‗service‘ contained in section 2(1)(o) of
the Act.

The other part of exclusionary clause relates to services rendered “free of

charge”.
The medical practitioners, government hospitals/nursing homes and private
hospitals/nursing homes (hereinafter called ―doctors and hospitals‖) broadly fall
in three categories:

(i) where services are rendered free of charge to everybody availing of the
said services
(ii) where charges are required to be paid by everybody availing of the
services and
(iii) where charges are required to be paid by persons availing of services
but certain categories of persons who cannot afford to pay are rendered
service free of charges.

There is no difficulty in respect of the first two categories. Doctors and

hospitals who render service without any charge whatsoever to every person
availing of the service would not fall within the ambit of „service‟ under
section 2(1)(o) of the Act. The payment of a token amount for registration
purposes only would not alter the position in respect of such doctors and
hospitals.
So far as the second category is concerned, since the service is rendered on
payment basis to all the persons they would clearly fall within the ambit of
section 2(1)(o) of the Act.

The third category of doctors and hospitals do provide free service to some of
the patients belonging to the poor class but the bulk of the service is rendered to
the patients on payment basis. The expenses incurred for providing free service
are met out of the income from the service rendered to the paying patients. The
service rendered by such doctors and hospitals to paying patients undoubtedly
falls within the ambit of section 2(1)(o) of the Act.

The question for our consideration is whether the service rendered to patients
free of charge by the doctors and hospitals in category (iii) is excluded by virtue
of the exclusionary clause in section 2(1)(o) of the Act.

In our opinion, the question has to be answered in the negative. In this context,
it is necessary to bear in mind that the Act has been enacted ―to provide for the
protection of the interests of ‗consumers‘ ‖ in the background of the guidelines
contained in the Consumer Protection Resolution passed by the U.N. General
Assembly on 9- 4-1985. These guidelines refer to ―achieving or maintaining
adequate protection for their population as consumers‖ and ―encouraging high
levels of ethical conduct for those engaged in the protection and distribution of
goods and services to the consumers‖. The protection that is envisaged by the
Act is, therefore, protection for consumers as a class.

The word ‗users‘ (in plural), in the phrase ―potential users‖ in section 2(1)(o)
of the Act also gives an indication that consumers as a class are contemplated.
The definition of ‗complainant‘ contained in section 2(1)(b) of the Act which
includes, under clause (ii), any voluntary consumer association, and clauses (b)
and (c) of section 12 which enable a complaint to be filed by any recognised
consumer association or one or more consumers where there are numerous
consumers, having the same interest, on behalf of or for the benefit of all
consumers so interested, also lend support to the view that the Act seeks to
protect the interests of consumers as a class.

To hold otherwise would mean that the protection of the Act would be
available to only those who can afford to pay and such protection would be
denied to those who cannot so afford, though they are the people who need
the protection more. It is difficult to conceive that the legislature intended to
achieve such a result. Another consequence of adopting a construction, which
would restrict the protection of the Act to persons who can afford to pay for the
services availed of by them and deny such protection to those who are
not in a position to pay for such services, would be that the standard and quality
of service rendered at an establishment would cease to be uniform.

The government hospitals may not be commercial in that sense but on the
overall consideration of the objectives and the scheme of the Act, it would not
be possible to treat the government hospitals differently. We are of the view
that in such a situation, the persons belonging to “poor class” who are
provided services free of charge are the beneficiaries of the service which is
hired or availed of by the “paying class”. We are, therefore, of the opinion
that service rendered by the doctors and hospitals falling in category (iii)
irrespective of the fact that part of the service is rendered free of charge, would
nevertheless fall within the ambit of the expression ‗service‘ as defined in
section 2(1)(o) of the Act. We are further of the view that persons who are
rendered free service are the ‗beneficiaries‘ and as such come within the
definition of ‗consumer‘ under section 2(1)(d) of the Act.

In respect of the hospitals/nursing homes (government and non-government)

falling in category (i), The medical officer who is employed in the hospital
renders the service on behalf of the hospital administration and if the service, as
rendered by the hospital, does not fall within the ambit of
section 2(1)(o), being free of charge, the same service cannot be treated as
service under section 2(1)(o) for the reason that it has been rendered by a
medical officer in the hospital who receives salary for employment in the
hospital. There is no direct nexus between the payment of the salary to the
medical officer by the hospital administration and the person to whom
service is rendered. The salary that is paid by the hospital administration to the
employee medical officer cannot be regarded as payment made on behalf of the
person availing of the service or for his benefit so as to make the person
availing of the service a ‗consumer‘ under section 2(1)(d) in respect of the
service rendered to him. The service rendered by the employee-medical officer
to such a person would, therefore, continue to be service rendered free of
charge and would be outside the purview of section 2(1)(o).

A contention has also been raised that even in the government hospitals/health
centres/dispensaries where services are rendered free of charge to all the
patients, the provisions of the Act shall apply because the expenses of running
the said hospitals are met by appropriation from the Consolidated Fund which is
raised from the taxes paid by the taxpayers. We do not agree.

The essential characteristics of a tax are that (i) it is imposed under statutory
power without the taxpayer‘s consent and the payment is enforced by law; (ii) it
is an imposition made for public purpose without reference to any special
benefit to be conferred on the payer of the tax and (iii) it is part of the
common burden, the quantum of imposition upon the taxpayer depends
generally upon his capacity to pay. The tax paid by the person availing of the
service at a government hospital cannot be treated as a consideration or charge
for the service rendered at the said hospital and such service, though rendered
free of charge, does not cease to be so because the person availing of the service
happens to be a taxpayer.

Adverting to the individual doctors employed and serving in the hospitals, we

are of the view that such doctors working in the hospitals/nursing
homes/dispensaries, whether government or private - belonging to categories
(ii) and (iii) above would be covered by the definition of ‗service‟ under the
Act and as such are amenable to the provisions of the Act along with the
management of the hospital, etc. jointly and severally.

There may, however, be a case where a person has taken an insurance policy
for medicare whereunder all the charges for consultation, diagnosis and medical
treatment are borne by the insurance company. In such a case, the person
receiving the treatment is a beneficiary of the service which has been rendered
to him by the medical practitioner, the payment for which would be made by
the insurance company under the insurance policy. The rendering of such
service by the medical practitioner cannot be said to be free of charge and
would, therefore, fall within the ambit of the expression ‗service‘ in Section
2(1)(o) of the Act. So also there may be cases where as a part of the conditions
of service, the employer bears the expense of medical treatment of the
employee and his family members dependenton him. The service rendered to
him by a medical practitioner would not be free of charge and would,
therefore, constitute service under section 2(1)(o).

On the basis of the above discussion, we arrive at the following conclusions:

(1) Service rendered to a patient by a medical practitioner (except where the

doctor renders service free of charge to every patient or under a contract of
personal service), by way of consultation, diagnosis and treatment, both
medicinal and surgical, would fall within the ambit of ‗service‘ as defined in
section 2(1)(o) of the Act.
(2) The fact that medical practitioners belong to the medical profession and are
subject to the disciplinary control of the Medical Council of India and/or
State Medical Councils constituted under the provisions of the Indian
Medical Council Act would not exclude the services rendered by them from
the ambit of the Act.

(3) A ―contract of personal service‖ has to be distinguished from a ―contract for

personal services‖. In the absence of a relationship of master and servant
between the patient and medical practitioner, the service rendered by a
medical practitioner to the patient cannot be regarded as service rendered
under a ‗contract of personal service‘. Such service is service rendered under
a ―contract for personal services‖ and is not covered by exclusionary clause
of the definition of ‗service‘ contained in section 2(1)(o) of the Act.

(4) The expression ―contract of personal service‖ in section 2(1)(o) of the Act
cannot be confined to contracts for employment of domestic servants only
and the said expression would include the employment of a medical officer
for the purpose of rendering medical service to the employer. The service
rendered by a medical officer to his employer under the contract of
employment would be outside the purview of ‗service‘ as defined in section
2(1)(o) of the Act.
 (5). Service rendered free of charge by a medical practitioner attached to a
hospital/nursing home or a medical officer employed in a hospital/nursing home
where such services are rendered free of charge to everybody, would not be
‗service‘ as defined in section 2(1)(o) of the Act. The payment of a token amount
for registration purpose only at the hospital/nursing home would not alter the
position.
(6). Service rendered at a non-government hospital/nursing home where no charge
whatsoever is made from any person availing of the service and all patients (rich
and poor) are given free service — is outside the purview of the expression
‗service‘ as defined in section 2(1)(o) of the Act. The payment of a token amount
for registration purpose only at the hospital/nursing home would not alter the
position.
(7). Service rendered at a non-government hospital/nursing home where charges
are required to be paid by the persons availing of such services falls within the
purview of the expression ‗service‘ as defined in section 2(1)(o) of the Act.
(8). Service rendered at a non-government hospital/nursing home where charges
are required to be paid by persons who are in a position to pay and persons who
cannot afford to pay are rendered service free of charge would fall within the ambit
of the expression ‗service‘ as defined in section 2(1)(o) of the Act irrespective of
the fact that the service is rendered free of charge to persons who are not in a
position to pay for such services. Free service, would also be ‗service‘ and the
recipient a ‗consumer‘ under the Act.
(9). Service rendered at a government hospital/health centre/ dispensary where no
charge whatsoever is made from any person availing of the services and all patients
(rich and poor) are given free service — is outside the purview of the expression
‗service‘ as defined in section 2(1)(o) of the Act. The payment of a token amount
for registration purpose only at the hospital/nursing home would not alter the
position.
(10). Service rendered at a government hospital/health centre/ dispensary where
services are rendered on payment of charges and also rendered free of charge to
other persons availing of such services would fall within the ambit of the
expression ‗service‘ as defined in section 2(1)(o) of the Act, irrespective of the fact
that the service is rendered free of charge to persons who do not pay for such
service. Free service would also be ‗service‘ and the recipient a ‗consumer‘ under
the Act.
(11). Service rendered by a medical practitioner or hospital/nursing home cannot
be regarded as service rendered free of charge, if the person availing of the service
has taken an insurance policy for medical care where under the charges for
consultation, diagnosis and medical treatment are borne by the insurance company
and such service would fall within the ambit of ‗service‘ as defined in section
2(1)(o) of the Act.
(12 ) Similarly, where, as a part of the conditions of service, the employer bears the
expenses of medical treatment of an employee and his family members dependent
on him, the service rendered to such an employee and his family members by a
medical practitioner or a hospital/nursing home would not be free of charge and
would constitute ‗service‘ under section 2(1)(o) of the Act.

Answer to Question No: 2016(8)(b),2018(8),2019(7)(a)&(7)(b)

Laxmi Engineering Works v. P.S.G. Industrial Institute, 1995 SCC (3)

583
The definition of the expression " consumer" in clause (d) of Section 2 of
the Consumer Protection Act, 1986 ex- cludes from its purview "a person
who obtains such goods for resale or for any commercial purpose". The
question that arises in this appeal is what is the meaning and ambit of the
expression "any commercial purpose" in the said definition. By Ordinance
24 of 1993 (which has since been replaced by Amendment Act 50 of 1993)
an explanation has been added to the definition of the expression
"consumer" with effect from 18.6.1993.
The explanation reads:
"For the purposes of 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-employments". The
complaint herein was, however, made before the adding of the said
explanation. It would be appropriate to read the definition at this stage.
"(d) "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
good s 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 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 service 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:‖
The appellant, Laxmi Engineering Works, is a proprietary concern
established under the Employment Promotion Programme. It is registered as
a small scale industry with the Directorate of Industries, Maharashtra and
has also obtained financial assistance from Maharashtra State Finance
Corporation in the form of term loan amounting to Rs.22. 10 lakhs
besides financial assistance from certain other sources. The appellant placed
an order with the respondent-P.S.G. industrial institute for supply of PSG
450 CNC Universal Turing Central Machine on May 28, 1990. The
appellant's case is that the respondent not only supplied the machinery six
months beyond the stipulated date but supplied a defective machine. Soon
after it was installed and operated, several defects came to light which the
appellant brought to the notice of the respondent. The respondent
appeared before the State Commission and denied the appellant's claim.
Inter alia, it raised an objection that since the appellant has purchased the
machine for commercial purposes he is not a consumer within the meaning
of the said expression as defined in Section 2(d) of the Act.
Definition of the expression 'consumer' in Section 2(d), a consumer means
in so far as is relevant for the purpose of this appeal,
(i) A person who buys any goods for consideration; it is immaterial
whether the consideration is paid or promised, or partly paid and
partly promised, or whether the payment of consideration is deferred;
(ii) A person who uses such goods with the approval of the person who
buys such goods for consideration
(iii) But does not include a person who buys such goods for resale or for
any commercial purpose.

The expression "resale" is clear enough. Controversy has, however, arisen

with respect to meaning of the expression "commercial purpose". It is also
not defined in the Act.

The explanation however clarifies that in certain situations, purchase of

goods for "commercial purpose" would not yet take the purchaser out of the
definition o expression "consumer". If the commercial use is by the
purchaser himself for the purpose of earing his livelihood by means of self-
employment, such purchaser of goods is yet a "consumer".

In the illustration given above, if the purchaser himself works on typewriter

or plies the car as a taxi himself, he does not cease to be a consumer. In
other words, if the buyer of goods uses them himself, i.e., by self-
employment, for earning his livelihood, it would not be treated as a
"commercial purpose" and he does not cease to be a consumer for the
purposes of the Act. The explanation reduces the question, what is a
"commercial purpose", to a question of fact to be decided in the facts of
each case. It is not the value of the goods that matters but the purpose to
which the goods bought are put to.

The several words employed in the explanation, viz., "uses them by

himself", "exclusively for the purpose of earning his livelihood" and "by
means of self-employment" make the intention of Parliament abundantly
clear, that the goods bought must be used by the buyer himself, by
employing himself for earning his livelihood.

If such buyer takes the assistance of one or two persons to assist/help him in
operating the vehicle or machinery, he does not cease to be a consumer.

We are also of the opinion that the definition of the expression " person" in
Section 2(m) as including a firm (whether registered or not), a Hindu
undivided family, a co-operative society or any other association of persons
(whether registered under the Societies Registration Act, 1860 or not) makes
no difference to the above interpretation.
 In Morgan Stanley Mutual Fund V Kartick Das (1994 (4) SCC 225)

Stated the meaning of the expression "consumer" in the following words:

"The consumer as the terms implies is one who consumes. As per the
definition, consumer is the one who purchases goods for private use or
consumption. The meaning of the word 'consumer' is broadly stated in the
above definition so as to include anyone who consumes goods or services at
the end of the chain of production.

In present case is concerned we must hold (in agreement with the National
Commission), having regard to the nature and character of the machine and
the material on record that it is not goods which the appellant purchased for
use by himself exclusively for the purpose of earning his livelihood by
means of self employment, as explained hereinabove.

The appeal accordingly fails and is dismissed but without costs. If the
appellant chooses to file a suit for the relief claimed in these proceedings, he
can do so according to law and in such a case he can claim the benefit of
Section 14 of the Limitation Act to exclude the period spent in prosecuting
the proceedings under the Consumer Protection Act, while computing the
period of limitation prescribed for such a suit.

Lucknow Development Authority v. M.K. Gupta 1994 SCC (1) 243

Fact: The Lucknow Development Authority, a statutory authority fails to

perform its duties satisfactorily with regard to construction of houses. One
aggrieved consumer filed a case against the Lucknow Development
Authority. The question of law in this case for consideration arose against
the orders passed by the National Commission by which it ordered against
the inclusion of statutory authorities under Consumer Protection Act.

ISSUE:-

1. Could the authorities constituted under the Consumer Protection Act

entertain a complaint by a consumer for any defect or deficiency in
relation to construction activity against a private builder or statutory
authority?
 2. Whether the housing construction or building activity carried on by a
private or statutory body is service within the meaning of sec 2(o) of
CPA

The Hon‘ble Court noted that the word ‗consumer‘ is a comprehensive

expression. It extends from a person who buys any commodity to consume
either as eatable or otherwise from a shop, business house, corporation,
store, fair price shop, etc. to the usage of private or public services. The
definition of consumer deals in two parts. The first deals with goods and the
other with services. Both parts first declare the meaning of goods and
services by use of wide expressions. Their ambit is further enlarged by the
use of inclusive clause.

Can a complaint be filed under the Act against the statutory authority or a
builder or contractor for any deficiency in respect of a given property? The
answer to all this shall depend upon the understanding of the word ‗service‘.
The term has variety of meanings. It may mean any benefit or any act
resulting in promoting interest or happiness. It may be contractual,
professional, public, domestic, legal, statutory etc. The concept of service is
therefore very wide. How it should be understood and what it means depend
in the context in which it has been used in an enactment. The definition of
‗Service‘ under the Act is in three parts. The main part is followed by
inclusive clause and ends by exclusionary clause. The main clause itself is
very wide. It applies to any service made available to potential users. The
words ‗any‘ and ‗potential‘ are significant. Both are of wide amplitude. The
test is not if a person against whom complaint is made is a statutory body
but whether the nature of the duty and function performed by it is
service or even facility. A government or semi-government body or a local
authority is as much amenable to the Act as any other private body
rendering similar service.

The entire purpose of widening the definition is to include in it not only day to day
buying of goods by a common man but also to such activities which are otherwise
not commercial but professional or service oriented in nature. The provisions in the
Acts, namely, Lucknow Development Act, Delhi Development Act or Bangalore
Development Act clearly provide for preparing plan, development of land, and
framing of scheme etc. Therefore, if such authority undertakes to construct
building or allot houses or building sites to citizens of the State either as amenity or
as benefit then it amounts to rendering of service and will be covered in the
expression ‗service made available to the potential users‘.

A person who applies for allotment of a building site or for a flat constructed by
the development authority or enters into an agreement with a builder or a
contractor is a potential user and nature of transaction is covered in the expression
‗service of any description‘. It further indicates that the definition is not
exhaustive. The inclusive clause succeeded in widening its scope but not
exhausting the services which could be covered in earlier part. So any service
except when it is free of charge or under a constraint of personal service is
included in it. Since housing activity is a service, it was covered in the clause as it
stood before 1993.

Court held that Statutory Authorities such as Lucknow Development Authority is

liable for any deficiency in the services rendered by such statutory authority, and
will be amenable to the provisions of the Consumer Protection Act, 1986.

CCI Chamber Co Operative Housing Society v. Development Credit Bank

Limited,AIR 2004

The appellant, who was maintaining a Savings Bank Account with the respondent-
Bank filed a complaint alleging deficiency of service by the respondent, submitting
that the Bank had wrongly debited an amount of Rs. 75,70,352/- in the account of
the complainant by honouring such cheques as bore forged signatures of the
complainant and in some of the cheques the figures had been altered. Photocopies
of such cheques were filed with the complaint.

As many as 72 cheques were issued on such dates when one of the two persons
purportedly drawing the cheques was already dead. The other one denied his
signatures and such disputed signatures did not at all tally with the standard
specimen signatures. Suspicion was raised against an official of the respondent-
Bank. The complaint was filed after serving notice on the respondent-Bank, which
was not complied with.
The National Consumer Disputes Redressal Commission, New Delhi (hereinafter,
NCDRC, for short), formed an opinion as under : ". . . . . . . . . .considering the
allegations in the complaint and the time that will require to decide the matter, it
cannot be perhaps possible for this Commission to take up this matter. Numerous
documents would be required to be proved including about 150 cheques. Service of
the experts will have to be requisitioned for proof of the signatures and the writings
wherein the figures in cheques have been altered.

Under the Consumer Protection Act, 1986, this Commission is expected to decide
the matter within a set frame of time. In Bharthi Knitting Co. v. DHL
Worldwide (1996 (4) SCC 704) Supreme Court has said, "Each case depends
upon its own facts. In an appropriate case where there is an acute dispute of facts
necessarily a Tribunal has to refer the parties to original civil suit established under
CPC or appropriate State law to have the claims dealt with between the parties."
Present is certainly a case involving an acute dispute. "We feel reluctant to require
the complainant to knock the door of Civil Court but considering the constraint of
time required to decide this matter, this Commission has its limitations. With these
observations this complaint is returned."

The complainant has filed this appeal under S. 23 of the Consumer Protection
Act, 1986.

The apex court observed that for a at the National Level, The State level and at the
district level has been constituted under the act with the avowed object of
providing summery and speedy remedy in conformity with the principle of
natural justice.

The court also noted that the said forum had been established to relived the
conventional courts of their burden of ever increasing cases and delayed disposal
due to complicated and detailed procedures.

In the context of the society case , the apex court made an observation that, merely
because recording of evidence was required, or some question of fact and law had
arisen which needed to be investigated and determined, that in itself could not be
ground for shutting the door of any forum under The Act to the person aggrieved.
The apex court held that in the CCI case that the decisive test was not whether
the question of fact and law arising for decision was of complicated nature.
The apex court said that, instead that anvil on which entertain ability of a
complaint by a forum under the act has to be determined, whether the question,
though complicated they may be, are capable of being determined by summery
enquiry.

Decision to Question No:- 2016(8)(b),2018(8)2019(7)(b),2019(7)(a):

According to definition and precedent of cases:

According to Section 2(d), '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 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 payments when such services are availed of with the approval
of the first-mentioned person;

[Explanation: For the purposes of 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;] The
definition of the term 'consumer' given in clause (d) of section 2(1) of the Act is
comprehensive one to cover not only consumer of goods but also the consumer
of services.
 And precedent of Laxmi Engineering Works v. P.S.G. Industrial
Institute, 1995 SCC (3),
It could be concluded that a person using his car as a taxi for the purpose of
earning livelihood come under the definition of consumer, hence he can file
a complaint against the manufacturer for the supply of defective goods and
could recover the damage caused to him.
Earning of livelihood is exempted from the definition of ‗commercial
purpose‘ otherwise goods uses for ‗resale ‘ and ‗commercial purpose‘ are
not included in the definition of the consumer. Hence can not file a
complaint in the consumer forum.

The decision of Question No 2016(8)(a) :

According to the definition Consumer, deficiency and services defined in Sec2 (1)
(d), Sec2 (1) (g), Sec (2) (o) respectively and precedent of Faqir Chand Gulati v.
Uppal Agencies Private Limited (2008) 10 SCC 345

Agreement between owner of the land and the builder comes under the definition
of consumer and services; hence he can file a complaint in the forum for providing
deficiency in services.

Medical Negligence question dealt in Topic of Negligence