A STUDY OF TORT LAW IN INDIA WITH SPECIAL REFERENCE TO

STATE LIABILITY, PRODUCT LIABILITY AND PUBLIC NUISANCE

LITIGATION

DISSERTATION SUBMITTED

IN FULFILLMENT OF THE REQUIREMENT FOR

SUBMITTING THE THESIS FOR THE DEGREE OF

BACHELOR OF LAW

TO

FACULTY OF LAW

DR. SHAKUNTLA MISRA NATIONAL REHABILITATION UNIVERSITY

LUCKNOW

SUPERVISOR BY

DR. SHEFALI YADAV ASHISH SINGH

FACULTY OF LAW

DR. SHAKUNTLA MISRA NATIONAL REHABILITATION UNIVERSITY

LUCKNOW
Contents

DECLARATION ................................................................................................................................... 4
MEANING, HISTORICAL EVOLUTION AND GENERAL PRINCIPLES OF TORT LAW .................................. 5
ANALYSIS OF PRESENT TORT SYSTEM IN INDIA ................................................................................ 43
PRECEDENTS AND JUDICIAL PRONOUNCEMENTS ON INDIAN TORT LAW ......................................... 83
CONCLUSION AND SUGGESTIONS .................................................................................................. 133
BIBLIOGRAPHY .............................................................................................................................. 140

2
 CERTIFICATE

This is to certify that this Dissertation titled, ―A STUDY OF TORT LAW IN INDIA WITH
SPECIAL REFERENCE TO STATE LIABILITY, PRODUCT LIABILITY AND PUBLIC
NUISANCE LITIGATION‖, for the award of B.Com.LL.B. (Hons.)degree from Faculty of
Law, Dr Shakuntala Mishra National Rehabilitation University, Lucknow has been done by
Ashish Singh, Roll No 154140018, who is bonafide student of Dr Shakuntala Mishra
National Rehabilitation University, Lucknow for the academic session 2019-2020. It is also
certified that the research has been persuaded under the guidance of Dr. SHEFALI YADAV
Head Professor at Faculty of Law, Dr Shakuntala Mishra National Rehabilitation University,
Lucknow; and that the research work has been duly authorized by Faculty of Law, Dr
Shakuntala Mishra National Rehabilitation University, Lucknow.

Place: Supervisor:

D.S.M.N.R.U, Lucknow Dean.(Dr.) SHEFALI YADAV

3
 DECLARATION

I, the undersigned, hereby declare that the research work done on the topic entitled ―A
STUDY OF TORT LAW IN INDIA WITH SPECIAL REFERENCE TO STATE
LIABILITY, PRODUCT LIABILITY AND PUBLIC NUISANCE LITIGATION‖ is written
and submitted under the guidance Assoc. Prof.(Dr.) ShefaliYadav, Faculty of Law,
D.S.M.N.R.U, Lucknow.

The findings and conclusions drawn in Dissertation are based on the data and other relevant
information collected by me during the period of my research study for the award
B.Com.LL.B. 5 Year Integrated Course in the Department of Law from D.S.M.N.R.U,
Lucknow.

I further declare that the thesis submitted on the research study is my original work and I
have not copied anything from any report of this nature while preparing this dissertation.
Neither the work nor any part thereof is published in any journal or anywhere else.

Place: D.S.M.N.R.U, Lucknow Ashish Singh

4
 A STUDY OF TORT LAW IN INDIA WITH SPECIAL REFERENCE TO STATE
LIABILITY, PRODUCT LIABILITY ANDPUBLIC NUISANCE LITIGATION

CHAPTER 1

MEANING, HISTORICAL EVOLUTION AND GENERAL PRINCIPLES

OF TORT LAW
1.1- Introduction-

In this chapter the researcher studies the basic meaning, historical evolution and general
principles of Tort law as before analyzing and studying the Indian tort law it is important to
understand the basic concepts. Thus, below the researcher has discussed tort law in gist which
shall act as an introduction for the upcoming chapters.

Any rule of Human conduct which is accepted by the society and the State enforces it is
termed as Law. In wider sense all human actions whether in religion, politics and socio-
moral fields are governed by certain approved conducts termed as law. It is worth mentioning
here that among all approved conducts only those which are enforceable and to those which
the State give protections are the laws which constitute the law of the land. Thus, civil and
criminal are the two branches in which Law can be divided broadly.

Civil wrong gives the plaintiff the right to sue the defendant when some rights of the plaintiff
are infringed by the defendant better known as Civil Proceeding. For example, a suit for
specific performance of contractual obligation, an action to recover debt, an action to restore
property etc. The person who initiates the civil proceeding is known as claimant or plaintiff
who claims the enforcement of his rights and the redressal claimed by him is in the form of
compensation or prevention. 1

On the other hand Criminal Proceedings are initiated against offenders who have committed
wrongs not against the victim but against the State and his criminal liability is decided by
criminal courts. The main objectives of Criminal Law are to punish the offender.

1
Fleming.J.G, An Introduction to the Law of Torts (Clarendon, 2nd edn., 1985)

5
On the basis of the above classification a tort is a civil wrong in the sense that it is committed
against an individual (which includes legal entities such as companies) rather than the state.
Tort is a remarkably wide-ranging subject and this chapter will attempt to explain some of the
basic principles which underlie the law of tort.

1.1.1- Meaning of Tort

The term tort is the French equivalent of the English word ‗wrong‘ and of the Roman law
term ‗delict‘. The word tort is derived from the Latin word tortum which means twisted or
crooked or wrong and is in contrast to the word rectum which means straight.2 Everyone is
expected to behave in a straightforward manner and when one deviates from this straight path
into crooked ways he has committed a tort. Hence tort is a conduct which is twisted or
crooked and not straight. As a technical term of English law, tort has acquired a special
meaning as a species of civil injury or wrong. It was introduced into the English law by the
Norman jurists.

Tort now means a breach of some duty independent of contract giving rise to a civil cause of
action and for which compensation is recoverable. In gist tort law protects certain interests of
a person by awarding a sum of money, known as damages, for infringement of a protected
interest or by issuing an injunction, which is a court order, to refrain the defendant from
doing something.

1.1.2- Definition of Tort

Though numerous attempts have been made so far to define tort but an entirely satisfactory
definition of tort law is still awaited. Still a tort in general terms may be defined as a civil
wrong independent of contract for which the appropriate remedy is an action for unliquidated
damages. Some other definitions for tort are given below:

Winfield and Jolowicz- Tortuous liability arises from the breach of a duty primarily fixed by
law; this duty is towards persons generally and its breach is redressible by an action for
unliquidated damages. 3

2
Dr.J. N. Pandey, Law Of Torts (Central Law Publication, 5th edn., 2005)
3
Williams,G. L. and Hepple, B. A, Foundations of the Law of Tort (Butterworths, 2nd edn., 1985).

6
Salmond and Hueston- A tort is a civil wrong for which the remedy is a common action for
unliquidated damages, and which is not exclusively the breach of a contract or the breach of a
trust or other mere equitable obligation.

Sir Frederick Pollock- Every tort is an act or omission (not being merely the breach of a duty
arising out of a personal relation, or undertaken by contract) which is related inone of the
following ways to harm (including reference with an absolute right, whether there be
measurable actual damage or not), suffered by a determinate person:-

a) It may be an act which, without lawful justification or excuse, is intended by the agent
to cause harm and does cause the harm complained of.
b) It may be an act in itself contrary to law, or an omission of specific legal duty, which
causes harm not intended by the person so acting or omitting.
c) It may be an act violation the absolute right (especially rights of possession or
d) property), and treated as wrongful without regard to the actor‘s intention or
knowledge.
e) It may be an act or omission causing harm which the person so acting or omitting to
act did not intend to cause, but might and should with due diligence have foreseen and
prevented.
f) It may, in special cases, consist merely in not avoiding or preventing harm which the
party was bound absolutely or within limits, to avoid or prevent.

1.1.3- Nature of Tort Law

An act or omission committed by the defendant who causes damage to the claimant gives rise
to tort. The damage must be caused by the fault of the defendant and must be a kind of harm
recognised as attracting legal liability. 4

This model can be represented:

Act (or omission) + causation + fault + protected interest + damage = liability. 5

This model can be illustrated by a motor accident, which is the most frequent occurrence
leading to tortuous liability.

4
Ellis Washington, General Principles of Tort Law, Part I (15 April, 2014).
5
Ibid

7
Example-A drives his car carelessly with the result that it mounts the pavement and hits B, a
pedestrian, causing B personal injuries. The act is A driving the vehicle. This act has caused
damage to B. The damage was as a result of A‘s carelessness, i.e. his fault. The injury
suffered by B, personal injury, is recognised by law as attracting liability. A will be liable to
B in the tort of negligence and B will be able to recover damages.

1.1.4- Scope of Tort Law

The main aim of implementing tort law was to use it as a tool to make people to follow the
behaviour of a reasonable prudent man and to make them respectful towards each other‘s
rights and duties. In order to achieve its aim law of torts allows the victim to claim
compensation for the infringement of his right. But here it is needed to be mentioned that
only certain accepted pattern of behaviour is recognised by law which when infringed by
others becomes redressal under tort law. Hence all expectations of individuals or group of
individuals are not redressable as only recognised interests are protected by law. 6

Thus to summarise the scope of tort one can conclude that every wrongful act is not a tort. To
constitute a tort,

a) Commission of wrongful act by a person;

b) The nature of the wrongful act should be such to have a resort to legal remedy and
c) Unliquidated damages should be the legal remedy for the wrongful act.

I. WRONGFUL ACT

An act becomes a wrongful act if only it violates a legal right of another individual. In Rogers
v.RanjendroDutt7, the Judges opined that the act for which the plaintiff is complaining
should be a legal wrongful act. Thus, mere harm in to another person‘s interest is not
sufficient but the act should be in prejudice to his legal right.

‗A legal right, as defined by Austin, is a faculty which resides in a determinate party or

parties by virtue of a given law, and which avails against a party (or parties or answers to a
duty lying on a party or parties) other than the party or parties in whom it resides. Rights
6
Fleming.J.G, An Introduction to the Law of Torts (Clarendon, 2nd edn., 1985).
7
Rogers vsRajendroDutt [(1860) 8 MIA 108].

8
available against the world at large are very numerous. They may be divided again into public
rights and private rights. Every right carries a legal duty or obligation to perform some act or
refrain from performing an act. Therefore, liability for tort arises, when the wrongful act
complained of amounts to either an infringement of a legal private right or a breach or
violation of a legal duty.‘

II. DAMAGE

Generally, a tort consists of some act done by a person which causes injury to another and for
which damages are claimed by the latter against the former. 8 One must have a clear notion
with regard to the words damage and damages to understand this. Ordinarily to convey any
loss, injury or if anyone is deprived from anything the word damage is used, whereas
damages mean the compensation claimed by the injured party and awarded by the court.
Damages are claimed and awarded by the court to the parties. The word injury is strictly
limited to an actionable wrong, while damage means loss or harm occurring in fact, whether
actionable as an injury or not.

The real importance of a legal damage is explained by two maxims, namely, Damnum Sine
Injuria and Injuria Sine Damno.

i. Damnum Sine Injuria (Damage in absence of Injury)

There are several acts that in spite of being' harmful aren't wrongful and provides no right of
action to one who suffers from their effects. Damage thus done and suffered is termed
Damnum sine Injuria or damage in absence of injury. Damage while not breach of a right
won't represent a tort.9 They're instances of damage suffered from excusable acts. An act or
omission committed with lawful justification or excuse won't be a explanation for action even
if' it ends up in hurt to a different as a mix in furtherance of trade interest or lawful user of
one‘s own premises. In Gloucester Grammar School Master Case 10 , it had been decided that
the litigator school master had no right to complain of the gap of a replacement school. The
injury suffered was mere damnumabsqueinjuria or Damage in absence of Injury. Acton v.
Blundell11, within which a mill owner drained off underground water running into the

8
Supra
9
Ibid
10
Gloucester Grammar School Masters Case [(1410) Y B 11 Hen IV 27]
11
Acton v. Blundell [ (1843) 12 M. & W., 324 ]

9
plaintiff‘s well, totally illustrate that no action lays for mere damage, even if it‘s substantial,
caused though it does not violate others right.

Other than legal wrongs there can some moral wrongs for which there is no legal remedy,
in spite of the fact that those moral wrongs can actual cause real loss or damage.

Thus, loss or injury is not sufficient enough to give rise to a valid cause of action unless it has
caused any legal injury i.e. violation of legal right.

ii. Injuria sine Damno (injury in absence of damage)

This means an act which causes infringement of a legal personal right with none actual loss
or injury. In such a case the person whose right has been infringed incorporates a smart
explanation for action. It's not necessary for him to prove any special damage as a result of
each injury as each injury imports a damage once a person is hindered of his right. Every
person has an absolute right to property, to the immunity of his person, and to his liberty, and
an infringement of this right is unjust as such. Actual perceptible injury isn't, therefore,
essential to be the foundation of associate an action. It's decent to point out the violation of a
right within which case the law can presume injury. Therefore in cases of assault, battery,
imprisonment, libel, trespass toward land, etc., the mere wrongful act is unjust while not
proof of special injury. The court is sure to award to the litigator a minimum of nominal
damages if no actual damage is evidenced. This principle was firmly established by the
election case of Ashby v. White 12, in which the plaintiff was unlawfully detained and
prevented by the returning officer in Parliamentary election from casting his vote. Against
which the plaintiff sued the defendant even though no actual loss was caused to him in real
sense as the candidate to whom he would have casted his vote had in any case won the
election. In this case the plaintiff claim for compensation for malicious prosecution was
acknowledged and Lord Holt expressed here that as the plaintiff‘s legal right was
infringed, legal injury was caused to him and hence his loss was actionable under law of torts.

III. REMEDIES

The maxim ‗ubi jus ibiremedium‘ which means ‗there is no wrong without a remedy‘ is the
core behind the evolution of law of torts. When any right is vested in an individual it only
makes sense if in event of its violation it can be enforced by way of legal remedy. Hence, a
right is meaningless if there lies no remedy for its infringement.
12
Ashby v White [(1703) 92 ER 126]

10
1.2 Classification of Tort-

There are primarily three types of torts:

 Intentional torts;
 Negligence; and
 Strict liability.

An intentional civil wrong could be a wrongdoing that happens once the bad person engages
in intentional conduct that ends up in damages to a different. Hitting another person during a
fight is an intentional act that will be the civil wrong of battery. Hitting someone accidentally
wouldn't be an intentional civil wrong since there wasn't intent to strike the person. This
may, however, be a negligent act. Careless conduct that ends up in injury to a different is
negligence.13

Generally, tortuous liability solely arises wherever the suspect either meant to cause hurt to
the litigator or in things wherever the suspect is negligent. However, in some areas, liability
will arise even once there's no intention to cause hurt or negligence. As for instance, in most
states, once a contractor uses dynamite that causes rubbish to be thrown onto the land of
another and damages the landowner‘s house, the possessor could recover damages from the
contractor although the contractor wasn't negligent and didn't will cause any hurt. This is
often referred to as strict liability or absolute liability. Basically, it is the expression of the
society that the activity is so dangerous to the general public that there should be liability.
However, society isn't going to the extend to outlaw the activity.

Acme Construction Company was constructing a road. It had been necessary to blast rock
with dynamite. The corporation‘s workers did this with the best of care. In spite of their
precautions, some flying fragments of rock broke a neighbouring house. The owner of the
house sued the corporation for the damages. The corporation raised the defence that the
owner was suing for tort damages which such damages couldn't be obligatory as a result of
the corporation had been free from fault. This defence was not valid. Whereas commonly
fault is the basis of tortuous liability, there are cases within which absolute liability is
obligatory on the actor. This implies that once hurt is caused,it's no defence that none had the
intention or that ordinary care had been exercised to stop the hurt.14

13
Graham Stephenson, Sourcebook on tort law (Routledge Cavendish, 2000)
14
Fleming.J.G, An Introduction to the Law of Torts (Clarendon, 2nd edn., 1985)

11
Other samples of absolute liability things would be hurt caused by storage of inflammable gas
and explosives, crop dusting once the chemical that's used is dangerous, factories that turn
out dangerous fumes, smoke or soot in inhabited areas, and also the production of nuclear
material.

2.2.1- Intentional Tort

Intentional tort happens once someone intends to perform an action that causes hurt to a
different. For intentional tort to be evidenced it's not needed for the person inflicting the hurt
to designedly cause an actual injury, they need to solely intend to perform the act.
Parenthetically, if someone designedly frightens someone with a weak heart, who then
incorporates an attack as a result of the action, it might be an intentional tort despite the fact
that the person didn't have the intention of inflicting the heart attack. To explore this idea, one
has to take into account the subsequent components of intentional tort.

Elements of Intentional Tort

Proving an intentional tort needs that the victim shows the suspect acted with the particular
intent to perform the act that caused the injuries or injury. The suspect doesn't essentially
have to be compelled to apprehend that injuries would occur as a result of the act, simply
which the act is subject to consequences. For a successful action of intentional tort against
someone, some basic components should be in place:15

Intent

Intent is outlined as acting with purpose or having information that the act in question will
cause injury or hurt to a different person. If the component of intent isn't in place, it will be
observed merely as a tort.

Acting

Acting needs the person to perform an act that ends up in hurt or injury to a different.
Considering or plan to perform an act doesn't represent acting.

Actual Cause

This component needs the victim to prove that, in absence of the defendant‘s actions or
―causes,‖ the injuries or injury wouldn't have occurred.
15
Graham Stephenson, Sourcebook on tort law (Routledge Cavendish, 2000).

12
Examples of Intentional civil wrong

1. A toddler named John kicks Adam during recess in school and also the kick causes
important injury as Adam already suffers from an incapacity. John doesn't apprehend that
Adam suffers incapacity; however he will apprehend that kicking somebody can cause
discomfort. This constitutes intentional tort since John ―intended‖ to kick Adam knowing the
―act‖ might cause hurt. If John had not kicked Adam, the ―actual cause‖ of the injury
wouldn't have occurred.

2. Bob and Rick get into an argument and Bob punches Rick within the face, breaking
his nose. Bob feels guilty as a result of, despite the fact that he was mad and meant to hit
Rick, he didn't intend to break his nose. Rick sues Bob for medical expenses concerning the
injury and wins the suit. The Judge rules that, despite the fact that Bob didn't intend to break
Rick‘s nose, he did intend to hit him and he had the information that touching another person
might cause injury. 16

Basic Types of Intentional Tort

There are many varieties of intentional tort with the foremost common types:

 Conversion:-the act of someone taking another person‘s property and converting it to

his own use. This is often conjointly called stealing in several jurisdictions.
 Trespassing:-the act of using or occupying another person‘s real property without
permission.
 Battery:-the illegal act of harmful or offensive contact with another person‘s body.
The word comes from the term to batter and it covers an array of activities together
with firing a gun at somebody or using the hands to cause hurt to a different person.
 Assault:-an intentional act creating in another person apprehension or fear of being
harmed. Assault is allotted by threat of inflicting bodily hurt, along with the victim‘s
perception that the aggressor has the flexibility to cause hurt.
 Intentional Emotional Distress:-the act of causing mental anguish to another
person through outrageous conduct, injury, or different hurt.
 False Imprisonment :-act of holding someone against their will without legal
authority. In accordance to law, a subject isn't allowed to limit the movement of

16
Fleming.J.G, An Introduction to the Law of Torts (Clarendon, 2nd edn., 1985)

13
 another person while not his consent. Business owners can, however, detain
individuals suspected of shoplifting. 17
 Fraud:-the act of intentionally deceiving a person or entity for the purpose of
18
monetary gain.

1.2.2- Negligence

Negligence could be a failure to exercise the care that a fairly prudent person would exercise
in like circumstances. The realm of tort law called negligence involves hurt caused by
carelessness, not intentional hurt.

According to Jay M. Feinman of the Rutgers University faculty of Law;

―The core plan of negligence is that folks ought to exercise charge after they act by taking
account of the potential hurt that they could foresee aptly cause to others." Essential Elements
in claims for negligence

Negligence suits have traditionally been analyzed in parts, referred to as components, kind of
like the analysis of crimes. A very important idea concerning components is that if a litigator
fails to prove anyone component of his claim, he loses on the complete tort claim.
Parenthetically, if one assumes that a specific tort has five components, every component
should be evidenced. If the litigator proves solely four of the five components, the litigator
has not succeeded in creating out his claim.

Common law jurisdictions could dissent slightly within the actual classification of the
elements of negligence, however the elements that have to be established in each negligence
case are: duty, breach, causation, and damages. Negligence can be perceived of having
simply three components - conduct, feat and damages. More often, it's aforesaid to possess
four (duty, breach, feat and retaliatory damages) orfive (duty, breach, actual cause,
proximate cause, and damages). Each would be correct, betting on what quantity specificity
somebody is seeking.19

1.2.3- Strict Liability

17
Intentional Tort Definition, available at : http://www.legaldictionary.net (Visited on 12th August,2015)
18
Intentional Tort Definition, available at : http://www.legaldictionary.net (Visited on 12th August,2015)
19
Deaking, Tort Law, 218

14
In tort law, strict liability isthe imposition of liability on an individual or individuals in
absence of fault (such as negligence or tortuous intent). The claimant would have to solely
prove that the tort occurred for which the suspect was accountable. The law imputes strict
liability to things it considers to be inherently dangerous. It discourages reckless behaviour
and unneeded loss by forcing potential defendants to require each attainable precaution. It
conjointly has the result of simplifying and thereby expediting court selections in these cases.

A classic example of strict liability is that the owner of a tiger rehabilitation centre.
Regardless of however sturdy the tiger cages were, if an animal escapes and causes injury,
the owner is to be liable. Another example could be a contractor hiring a demolition
contractor that lacks correct insurance. If the contractor makes a blunder, the contractor is
strictly accountable for any injury that happens. An additional everyday example is that of a
traveller on conveyance who was unable to get a legitimate price tag for the journey due to
extraneous circumstances, akin to being unable to get a price tag for no matter reason.
According to strict liability it doesn't matter if the price tag machine was broken, or the
train was early, or there have been no workers at the counter. The obligation for holding a
legitimate price tag falls on the traveller and also the traveller mustn't have travelled while
not one despite the circumstances.20

In strict liability things, though the litigator doesn't have to be compelled to prove fault, the
suspect will raise a defense of absence of fault, particularly in cases of product liability,
wherever the defense could argue that the defect was the results of the plaintiff's actions and
not of the merchandise, that is, no logical thinking of defect ought to be drawn exclusively as
a result of an accident that happened. If the litigator proves that the suspect knew concerning
the defect before the damages occurred, extra damages will be awarded to the victim in some
jurisdictions.

The doctrine's most famed advocates were Learned Hand, Benjamin Cardozo, and Roger

J. Traynor.

Under English and Welsh law, in cases wherever tortious liability is strict, the suspect can
usually be held liable just for the fairly predictable consequences of his act or omission (as
in nuisance).

20
Dr. J. N. Pandey, Law OF TORTS (Central Law Publication, 5th edn., 2005).

15
Strict liability is usually distinguished from absolute liability. In this context, a misconduct is
also exempted from strict liability if due diligence is evidenced. Absolute liability, however,
needs solely misconduct.21

1.3 Historical Evolution of Tort Law-

Tort is derived from a French word whose equivalent English word is 'wrong'. It is called
'delict' in Roman. The Latin word 'Tortum' which means 'twisted' or 'crooked' is the word
from which the phrase 'Tort' is derived. The word is used to convey the meaning that there
is a deviation from the normal, straight or correct conduct. The French-speaking English
lawyers and judges, particularly from the Courts of Normandy and Angevin Kings of
England paved the way of the use of the word ‗tort‘ into English Law. Till the middle of the
17th century the term ‗tort‘ suffered from lack of clarity. 22

1.3.1- Origin of Tort Law under Roman and Development under Common Law

The provisions for torts were incorporated in Roman law as delict. The jurisdiction of civil
law in Europe also gradually came under its influence. But under the common law an
independent and distinct set of law aroused which finally took the shape of English tort law.
The first use of the word 'tort' in a legal context was seen in the 1580s. Prior to this time
different terms and words were used for similar concepts.

In an attempt to find a general theory of tort, almost a century ago, a scholar Oliver Wendell
Holmes, Jr., examined the history of negligence which is one of the most usedconcepts in tort
law. He concluded that ‗from the earliest times in England, the basis of tort liability was fault,
or the failure to exercise due care.' The defendant would be liable for an injury caused to
another whenever there was failure on the part of the defendant "to use such care as a prudent
man would use under the circumstances.'

Thereafter, with the passage of time one of the scholar Morton J. Horwitz came to the
conclusion while re-examining the history of negligence that negligence primarily was not
confined to carelessness or fault23. Rather, negligence meant "neglect or failure fully to
perform a pre-existing duty, whether imposed by contract, statute, or common-law status.‖
21
Deakin, Tort Law, 218.
22
Malone.W.S, Ruminations on the Role of Fault in the History of the Common Law of Torts (Louisiana Law Review,
1970).
23
Bruce R. O'Brien, The Oxford International Encyclopedia of Legal History, vol. 1 (Oxford: Oxford UP, 2009).

16
Irrespective of the fact that whether the defendant was at fault or not, he is liable for the
breach of his duty. Further, Horwitz adds that it was strict liability and not fault theory which
was the decisive factor in determining the liability of the defendant.

According to him the fault theory of negligence was not established in tort law until the
nineteenth century by judges who sought "to create immunities from legal liability and
thereby to provide substantial subsidies for those who undertook schemes of economic
development."'24Biased judges‘ economic interest of benefitting the business group‘s
metaphor the concept of negligence under modern tort law and inclined towards fault theory
substituting the principle of strict liability.

Tort law in its nascent stage generally evolved around two types of cases. The first type
which was frequent under common law for years was the one where parties were into a prior
relationship and there was negligence on the part of one of the parties which was an
undertaking, calling, or office. The second types of cases were those where the involved
parties were not into any prior relationship. The defendant‘s failure to perform his duty due to
unforeseen reason was sufficient to give the plaintiff a firm cause of action. The last quarter
of the seventeenth century saw an increasing number of such cases though few instances were
also seen earlier.

1.3.2- Medieval Period

At common law, justice for crimes and other wrongs were same and were based on the notion
or planetary system of providing compensation to the victims. In Anglo-Saxon Law, the
remedy available for wrongs was payment of compensation either in money orin kind to the
victim or to his clan. In case of wrong against the public, the amount was paid to the king or
to the presiding officer of a court. To prevent cases of murder a fine termed as Weregild was
imposed on accused for murder and the amount of fine was decided was the basis of the
victim‘s worth. Botleas which means that which is unable to be compensated was the word
which was used in some latter codes for wrongs like theft, open murder, arson, treason
against one‘s lord. The convicts of Botleas were left at the king‘s mercy. Items or creatures
which caused death were also destroyed as deodandsi.e things given to God or forfeited.
Assessing intention was a matter for the court, but Alfred's code did distinguish

24
Bruce R. O'Brien, The Oxford International Encyclopedia of Legal History, vol. 1 (Oxford: Oxford UP, 2009).

17
unintentional injuries from intentional ones, whereas culpability depended on status, age, and
gender.

The concept of fine got altogether a new objective and became a source of revenue after the
Norman Conquest as now all fines were paid only to courts or the king. The term tort or
trespass was used to mean a wrong and pleas were divided into civil pleas and pleas of the
crown.

In 1166 the remedy for dispossession from freehold land the petty assizes (assize of novel
disseisin) were established. One of the primitive type of civil pleas where damages were paid
to the victim was that for an action of trespass and failure would lead to imprisonment. The
other major types of plea which were raised in local courts were of slander, breach of
contract, or interference with land, goods, or persons. Gradually the action for trespass
became frequent and by 1250s the writ of trespass was introduced to make it available as
right and not in lieu of fee. The writ was termed as de cursu and its application was restricted
to interference with land and for instances where there were breach of King‘s peace due
application of force.

The Statute of Westminster 1285 passed in the 1360s, the element of use of force for an
action of tort was replaced by ―trespass on the case‖. Later on with the increase in its scope it
changed to only ―action on the case‖. Finally, The English Judicature Act passed 1873
abolished the system of separate actions for ―actions of trespass‖ and ―trespass on the case‖. 25

The Principle of Strict Liability was imposed for the escape of fire in 1401 in the English
case Beaulieu v Finglam. The possible reason behind these was the lack of sufficient fire
fighting resources and the massive capacity of negligent handling of fire to cause destruction.
Additionally, the principle of strict liability also started to be used in cases of release of
cattles. Around 1400, the liability for common carrier also gained importance. In the
medieval period unintentional injuries were comparatively less due to the simpler form of
community life. But with the advent of 18th and 19th centuries, cases of collisions and
carelessness started to increase due improved transportation and development in carriages.
William Blackstone, an imminent English Scholar rules out the existence of litigation related

25
Malone.W.S, Ruminations on the Role of Fault in the History of the Common Law of Torts (Louisiana Law Review,
1970).

18
to champerty and maintenance. The restriction which was imposed in the assigning of cause
of action was a rule mostly based on public policy.26

1.3.3- Tort by mid-19th Century

Gradually, the English scholars started acknowledging the rights of the victims to be
redressed as one of the basic right of an individual. In fact, in the end of 18th century
Blackstone‘s Commentaries was published with volumes on ―private wrongs‖ as torts and
vice-versa. The tort law of the United States was not an exception and it was influenced by
English Principles and Blackstone‘s treatise. Number of States adopted constitutions with
specific remedies for an action of tort which were inclusive of statues based on English law.

In Spite of the existence of tort in a nascent form, even by the mid of 19th century it was
considered to be an undeveloped branch of law. In 1860‘s the first American treatise on torts
was published. However, the subject gains popularity with the publication of Oliver
Wendell Holmes Jr. on the same. Holmes' writings have been described as the "first serious
attempt in the common law world to give torts both a coherent structure and a distinctive
substantive domain"27

1.3.4- Modern Development

The industrial revolution was a boast to the development of tort law and it significantly
increased the scope and significance of tort law. The increased use of steam engines,
locomotives, motor vehicles and hazardous products also increased the number and severity
of accidents. This in turn resulted in the development of modern tort law, specially the
doctrine of negligence and it is worth mentioning here that the applicability of principle of
strict liability also saw a growth in slow pace though in fields involving dangerous activities.
However, there still existed some gaps in tort law due to which many accident claims
remained unanswered.

Thereafter, with the developments and advancement of the society in all aspect tort law is not
an exception and so new concepts like product liability, liability for medical malpractice,
environmental liability, liability for torts in the marketplace, extended liability of the
corporation have developed in tort law. Again, the improvement in information technology
has increased the field of wrongs committed on one hand and on the other hand it has also
26
David.Ibbetson, The Oxford International Encyclopaedia of Legal History, vol. 5 (Oxford: Oxford UP, 2009), 467.
27
J.C.P. Goldberg, The constitutional status of tort law: Due process and the right to a law for the redress of wrong, Yale
Law Journal,(2005).

19
made easier to establish and impose tortious liability on the wrongdoer ignoring distance and
time. Hence, the development of tort law is slow in comparison to other branches of law but
with time it has definitely gained. 28

1.4 General Principles of Tort Law-

Like any other branch of law, Tort law is also based on certain basic principles which provide
the guidelines on the basis of which liability, extent of compensation and grounds for
defenses are decided. Below an attempt has been made to highlight those basic principles of
tort.

1.4.1-The Nature and Liability in Tort:

There are two theories with regard to the basic principle of liability in the law of torts or tort.
They are:

i. Wider and narrower theory- all injuries done by one person to another are torts,
unless there is some justification recognized by law.
ii. Pigeon-hole theory- there is a definite number of torts outside which liability in
tort does not exist.29

The first theory was propounded by Professor Winfield. According to this theory, if one
injured his neighbour, he can be sued in tort, whether the wrong happens to have a particular
name like assault, battery, deceit or slander, and the offender will be liable if he fails to prove
lawful justification. Thus leading to the principle with wider interpretation that all
unjustifiable harms are tortious. This enables the courts to create new torts and make
defendants liable irrespective of any defect in the pleading of the plaintiff. This theory
resembles the saying, ―my duty is tohurt nobody by word or deed‖. Pollock supported this
theory and the domain of the law of torts was extended repeatedly by the court. For example,
negligence became a new specific tort only by the 19th century AD. Similarly the rule of
strict liability for the escape of noxious things from one‘s premises was laid down in 1868 in
the leading case if Rylands v. Fletcher.

The second theory was proposed by Salmond. According to this theory, one can injure his
neighbour with the fear of he being sued one in tort provided his conduct falls under the
specific slot of assault, deceit, slander or any other nominate tort. The law of tort consists of a
28
J.C.P. Goldberg, Ten Half-Truths About Tort Law, Valparaiso University Law Review, (2008).
29
R.K.Bangia, Law of Torts 5(Allahabad Law Agency, Faridabad, 17th edn., 2003).

20
neat set of pigeon holes, each containing a labelled tort. If the defendant‘s wrong does not fit
any of these pigeon holes he has not committed any tort. The advocates of the first theory
argue that decisions such as Donoghue v. Stevenson shows that the law of tort is steadily
expanding and that the idea of its being cribbed, cabined and confined in a set of pigeon holes
in untenable. However Salmond argues in favour of his theory that just as criminal law
consists of a body of rules establishing specific offences, so the law of torts consists of a
body of rules establishing specific injuries. Neither in the one case nor in the other is there
any general principle of liability. Whether one is prosecuted for an alleged offence or sued
for an alleged tort it is for one‘s adversary to prove that the case falls within some specific
and established rule of liability and not for one to defend him by proving that it is within
some specific and established rule of justification or excuse. For Salmond the law must be
called The Law of Torts rather that The Law of Tort.30

However, either of the theories failed to gain complete recognition. In an Indian decision,
LalaPunnalal v. KasthurichandRamaji31, it was pointed out that there is nothing like an
exhaustive classification of torts beyond which courts should not proceed, that new invasion
of rights devised by human ingenuity might give rise to new classes of torts. Even the recent
decisions of competent courts gives an impression that the courts have preferred to follow the
first theory of liability.

Thus it is a matter of interpretation of courts so as to select between the two theories. The law
of torts is one such field of law which has developed by courts starting right from the simple
problems of primitive society to those of our present complex civilization.

1.4.1.1- Fault based liability

This principle establishes that it is not sufficient for the claimants to prove only damage
caused by the defendants act but he also needs to prove that the defendant was at fault. Fault
in tort means malice, intention or negligence. Where fault does not have to be proved it is
said to be a strict liability tort. By nineteenth century the fault theory in tort law started
developing mostly due to certain policies. In absence of availability of insurance in general,
damages were mostly paid by the defendant personally. The Courts started introducing the
trend of proving fault in order to establish a successful claim under law of torts. The ulterior
motive behind this was to protect the developing industries. The economic argument in

30
R.K.Bangia, Law of Torts 5(Allahabad Law Agency, Faridabad, 17th edn.,2003).
31
LalaPunnalal v. KasthurichandRamaji, (1945) 2 MLJ 461.

21
favour of fault was supported by the moral and social arguments that fault-based liability
would deter people from anti-social conduct and it was right that bad people should pay. One
consequence of this development was that workers in industry who suffered industrial
accidents were largely deprived of compensation.32

Under the English Law the concept of establishing fault has always been a basic principle for
most of the actions under tort. With the spread of insurance the courts had to increase the
standard of conduct in certain situations though the meaning of moral wrongdoing remains
the same. It has been shown that many errors by car drivers which are classed as being
negligence (fault) are statistically unavoidable. Where this is the case, the moral and
deterrent arguments for fault are certainly reduced if not extinguished. The shift of liability
of paying the compensation by the insurer instead of the defendant has definitely caused vital
changes in the principle of fault liability under law of tort. What has happened is that fault
has often moved away from being a state ofmind to being a judicially set standard of conduct
which is objectively set for policy reasons. 33

1.4.1.2-Strict liability

Strict liability means no fault liability. Fault is a positive concept whereas strict liability is a
negative idea. More emphasis was given on fault based liability in the preceding century in
comparison to strict liability. Still some areas are governed by strict liability and the
Parliament has added more areas to it.

These areas are not linked coherently. In offences like trespassing livestock which was the
major crime during an era when agriculture was the main source of State‘s economy, the
principle of strict liability was used. The judiciary made a failed attempt to handle the
problems largely created due to industrial revolution by developing the principle of strict
liability in Rylands v Fletcher. The rule that an employer is vicariously liable for the
negligence of their employee in the course of their employment, in the absence of any fault
on the part of the employer, is a pragmatic response to a particular problem. 34

The Parliament has chosen legislation based on strict liability rather than fault-based liability
for sensitive areas like industrial safety. But even within the scope of strict liability principle
the standard of liability to be imposed varies from one tortuous action to another. There are

32
Moral Theories of Torts: Their Scope and Limits: Part I, Law and Philosophy, 1: 371-90(1982)
33
Theories of Tort Law, Stanford Encyclopedia of Philosophy (22 September, 2003).
34
Theories of Tort Law, Stanford Encyclopedia of Philosophy (22 September, 2003).

22
also certain areas where the liability becomes absolute and no defences are available. On the
line of it the Nuclear Installations Act 1965 was enacted. Most actions, however, permit some
defences or exemptions from liability.

1.4.1.3-Doctrine in Ryland-v-Fletcher

Rylands in order to supply water to his powered textile mill constructed a reservoir on his
land. Fletcher was the owner of the neighbouring land where he operated mines and had
excavated up to the disused mines. The mines were under the land where the defendant‘s
reservoir was located.

To build the reservoir some independent contractors and engineers were employed by the
defendant. The contractors came across some mine shafts that that were no longer in use and
made ‗no attempt‘ to fix the shafts. The work was completed and during use ofthe reservoir
once there was heavy rainfall and subsequently water busted from the reservoir and caused
flood in the land and mines of Fletcher.

Fletcher argued the enjoyment of his land had been invaded and Rylands ought to be
accountable for the damages caused by inherently dangerous activities thus the philosophy of
strict liability ought to be applied. Rylands argued that he was acting lawfully and within
reasons on his land and may not be liable to be blamed for an accident that resulted with none
negligence.

The Court of Liverpool dominated in favour of the litigant on the premise of each nuisance
and trespass. Rylands wasn't happy and applied for the case to be detected before the judges
of the exchequer during which he succeeded. The judges overruled the primary ruling on the
concept of trespass requiring an instantaneous personal involvement within the invasion of
the quite enjoyment of land. This type of invasion ‗required proof of intent or negligence‘.

The defendants weren't negligent on the premise that he had no idea of the existence of the
shafts. Fletcher appealed to the exchequer chamber wherever the previous call was
overturned; this time in favour of Fletcher.

Blackburn J held:

―..any person, who for his own intentions brings on to his land, accumulates and keeps on that
land anything likely to cause trouble if it escapes, must keep it at his own risk, and, if he does

23
not do so is prima facie, answerable for all the damage which is the natural effect of its
escape.‖

The judges relied on the premise of liability for damages of land through the misconduct of
personal chattel of trespass, the misconduct of nuisance likewise as ‗thescienter action‘.
Rylands appealed to the House of Lords.

HOLs laid-off Rylands claim on the premise that he had turned the land to a non-natural use
and was thus accountable for the escape of the water he had collected.

The judges held that the defendants need to pay damages to the litigant and from the
judgement within the principle of Rylands the case developed strict liability.

The primary justification for this was premised upon the idea that the rights of people mustn't
be sacrificed within the furtherance of the general public interest in cases wherever the acts
were "one off" and thus tough to be liable for nuisance which needs the acts to be continuous
or wherever it had been tough to prove that the litigator had not taken all affordable
precautions to forestall the mischief since the escape wouldn't are predictable. Thus if the
water had accumulated on Fletchers land naturally, the rule on strict liability wouldn't apply.
The appliance of strict liability is contentious as it takes into consideration the harmful result
instead of the conduct. This is often terribly completely different from the standard fault-
based formulation in negligence.35

Distinct components of Rylands v Fletcher

The Defendant should have brought something onto His Land

The rule refers to things accumulated by the defendant that are things bought onto the
property by the defendant, and not one thing that accumulated there naturally; in Rylands v
Fletcher the defendant bought water onto his land.

In Healy v Bray, a rock had dislodged from the defendant‘s land and rolled down the Hill
towards the litigant. The court decided since the rock was there naturally and a part of the
land itself, it had been not bought onto the land.

It should be a Non-Natural use of the Land

35
Theories of Tort Law, Stanford Encyclopedia of Philosophy (22 September, 2003).

24
Lord Cairns LC stressed down the need that there should be a non-natural use of the land.
Non-natural suggests that ‗some special use bringing it an inflated danger to others, and
should not simply be the standard use of land or such a use as is correct for the overall profit
for the community‘.

In Rylands, the defendant‘s use of water was ‗non-natural‘ on the premise that domestic

use of water is natural use however accumulating giant quantities of water is non-natural.

And if it escapes it should be doubtless to cause mischief

The defendant should have accumulated a dangerous item that is something doubtless to try
to do mischief if it escapes. The court can examine the item and therefore the circumstances
of the build-up. In such a scenario the defendant keeps it in at his peril.

Escape

There should be an escape from the land that the defendant occupied and it should
effectively relate to the dangerous substance.

The case of Rylands v Fletcher arranged the premise on that the one that has suffered may be
authentic to be remedied. The one that has suffered injury may be paid if he will prove injury
on his property.

Where there's injury to neighbour land, there are a variety of various causes of action on the
market, akin to negligence, trespass, nuisance and Rylands v Fletcher, based on the
circumstances. 36

Negligence depends on the existence of a breach of duty of care owed by one person to a
different. This duty may be a normal of guardianship that a personal is needed to stick to
while performing any act that might foreseeable hurt others.

Private nuisance‘s typically relates to a wrongful disturbance with a person‘s use or

enjoyment of land involving a harmful escape. The intention of the person inflicting a
nuisance is typically not relevant however malice could flip an inexpensive act into an
unreasonable one.

36
R.K.Bangia, Law of Torts (Allahabad Law Agency, Faridabad, 17th edn., 2003).

25
The distinctive issue is nuisance issues the protection of the employment and delight of land
whereas negligence isn't restricted to the protection of any explicit interest. Rather liability is
predicated on the defendant's conduct, and will be obligatory in respect of a large vary of
interests broken by that conduct.37

The two overlap therein a claim in nuisance regarding injury to property or land, definitely
with relevancy to the encroachment of tree roots.

In Low v Haddock, Judge Newey held:-

‗Nuisance, when knowledge and foresight of consequences are required for it, bears a strong
resemblance to negligence …‘38

Nuisance involves an unbroken action instead of one event not like Rylands or negligence
and doesn't need lack of care or guiltiness. However, there has been an application of
nuisance principles to isolated escapes akin to Tenant v Goldwin.

Holt CJ held that nuisance is usually an action of strict liability instead of requiring―fault‖ of
negligence.

There can never be a case where a litigant will succeed in Rylands v Fletcher while not
additionally succeeding in nuisance and there'll seldom be a case wherever a litigant would
succeed in nuisance while not additionally succeeding in negligence. This proof supports the
argument against Rylands.

Despite the judicial tendency to limit the pertinence of the strict liability principle, it remains
relevant, augmenting the law of nuisance and negligence by providing a mechanism whereby
risk is allotted justly and expeditiously. Despite negative views on the principle being
expressed within the House of Lords it's been applied by English Courts.

Rylands was a serious development in trending law and has influenced several succeeding
rulings. The modification in negligence law as a field of torts has in some jurisdictions
incorporated the Rylands rule as for example in Australia. 39

1.4.1.4-Vicarious liability and State Liability

37
Ibid.
38
R.K.Bangia, Law of Torts 5(Allahabad Law Agency, Faridabad, 17th edn., 2003).
39
Mark Wagenbuur, Strict liability in the Netherlands (21 February, 2013).

26
Vicarious Liability is that the tortious wrong that imposes responsibility upon one person for
the failure of another, with whom the person encompasses a special relationship (such as
Parent and kid, employer and employee, or owner of car and driver), to exercise such care as
a fairly prudent person would use underneath similar circumstances.

Vicarious liability could be a legal belief that assigns liability for an injury to someone who
did not cause the injury however whose agency encompasses an explicit legal relationship to
the one that did act negligently. 40 It's additionally observed as imputed Negligence. Legal
relationships which will cause imputed negligence embrace the connection between parent
and kid, husband and spouse, owner of a vehicle and driver, and employer and employee.
Normally the independent negligence of one person isn't attributable to a different person.

Other theories of liability that are premised on imputed negligence embrace the Respondent
Superior doctrine and also the family car doctrine.

The belief of respondent superior (Latin for "let the master answer") relies on the employer-
employee relationship. The belief makes the employer accountable for a scarcity of care on
the part of an employee in regard to those to whom the employer owes a obligation of care.
For respondent superior to use, the employee's negligence should occur inside the scope of
the employment.41

The employer is charged with accountability for the negligence of the employee as a result of
the employee being an agent of the employer. If a negligent act is committed by an employee
acting inside the overall scope of her or his employment, the employer is considered
chargeable for damages. As for example, if the driver of a gasoline van runs a red light while
going to a service station and strikes another automobile, inflicting injury, the gasoline
delivery company are accountable for the damages if the driver is found to be negligent. As a
result, the company can mechanically be found liable if the driver is negligent, respondeat
superior could be a kind of Strict Liability.

Another common example of imputed negligence is attributing liability to the owner of a

automobile, wherever the driver of the automobile committed a negligent act. This kind of
relationship has been labelled as the family automobile doctrine. The belief relies on the idea
that the top of the house provides an automobile for the family's use and, therefore, the

40
K.La.Mance, Contract and Tort Law (2013).
41
Supra

27
operator of the automobile acts as an agent of the owner. When, for instance, a child drives
an automobile, registered to a parent, for a family purpose, the parent is accountable for the
negligent acts of the kid at the wheel.

Liability can even be imputed to an owner of an automobile who lends it to a friend. Here, the
driver of the automobile is acting in the capacity of an agent of the owner. If the owner is
harmed by the driver's negligence and sues the driver, the owner will lose the case as a result
of the negligence of the driver is imputed to the owner, thereby rendering him contributory
negligent. This concept is understood as imputed contributory negligence. 42

State liability means the liability of the State for the tort committed by its servants which
includes any act or omission, voluntary or involuntary and brings the State before Court of
Law in a claim for unliquidated damages.

1.4.1.5- Product Liability

Product liability is a new concept which is that area of law in which products manufacturers,
distributors and sellers are held responsible for the injuries caused by their products.
Generally, a products liability claim is based on a design defect, a manufacturing defect, or
a failure to warn. This topic is closely associated with negligence, breach of
warranty and consumer protection.

1.4.2- Principles of Negligence:

Negligence could be a tort that arises from the breach of the duty of care owed by one person
to a different from the perspective of a prudent person. Though attributable as showing within
the United States in Brown v. Kendall, the later Scottish case of Donoghue v Stevenson
[1932], followed in European country, brought European country into line with the United
Staes and established the 'tort of negligence' as opposed to negligence as a element in specific
actions.43 In Donoghue, Mrs. Donoghue drank from an opaque bottle containing a rotten snail
and claimed that it had made her sick. She couldn't sue Mr. Stevenson for damages for breach
of contract and instead sued for negligence. The bulk determined that the definition of
negligence is divided into four element elements that the plaintiff should prove to establish
negligence. The elements in deciding the liability for negligence are:

42
K.LaMance, Contract and Tort Law (2013).
43
F.Ferrari, Donoghue v. Stevenson's 60th Anniversary, Annual Survey of International & Comparative Law (1994).

28
  The plaintiff owed a obligation of care through a special relationship (e.g. doctor-
patient) or another principle
 There was a dereliction or breach of that duty
 The party directly caused the injury [but for the defendant's actions, the plaintiff
wouldn't have suffered an injury].
 The plaintiff suffered harm as a result of that breach
 The harm wasn't too remote; there was proximate cause to point out the breach
caused the harm

In certain cases, negligence is assumed underneath the belief of res ipsa loquitur (Latin for
"the factor itself speaks"); significantly within the United States, a connected thought is
negligence per se.44

1.4.2.1- Duty and standard of care

In tort law, a obligation of care could be a legal obligation that is obligatory on a person
requiring adherence to a standard of reasonable care while doing any acts that would
foreseeable hurt others. It's the primary component that has to be established to proceed with
an action in negligence. The claimant should be able to show an obligation of care obligatory
by law that the defendant has broken. In turn, breaching an obligation could subject a
personal to liability. The duty of care is also obligatory by operation of law between people
with no current direct relationship (familial or written agreement or otherwise), however
eventually become connected in some manner, as outlined by common law.

Duty of care is also thought of a rationalization of the accord, the implicit responsibilities
held by people towards others within society. It's not a demand that an obligation of care be
outlined by law, although it'll typically develop through the jurisprudence of common law.

1.4.2.2- Contributory negligence

Contributory negligence in common-law jurisdictions is mostly a defense to a claim based

on negligence, an action in tort. This principle has relevancy to the determination of liability
and is applicable once plaintiffs/claimants have, through their own negligence, contributed
to the hurt they suffered. It can even be applied by the court in a tort matter no matter whether
or not it absolutely was pleaded as a defense.

44
Twerski, Negligence Per Se and Res Ipsa Loquitur, Wake Forest Law Review (2009).

29
For example, a pedestrian crosses a road negligently and is hit by a driver who was driving
negligently. Since the pedestrian has additionally contributed to the accident, they'll be barred
from complete and full recovery of damages from the driver (or their insurer) as a result of
the accident was less probably to occur if it weren't for his or her failure to keep a correct
lookout. Another example of carelessness is wherever a litigator actively disregards warnings
or fails to require reasonable steps for his or her safety, and then assumes an explicit level of
risk in a given activity; as for instance diving in shallow water without checking the depth
first.

In some jurisdictions, the belief states that if a victim, who is guilty to any degree, even if he
is guilty for only one percent, is also denied compensation entirely. This can be referred to as
pure contributory negligence.

1.4.2.3- Res ipsaloquitor

In the common law of torts, res ipsa loquitur (Latin for "the thing speaks for itself") could be
a belief that infers negligence from the very nature of an accident or injury, in the absence of
evidence on how any defendant behaved. Although modern formulations have a different
jurisdiction, common law originally expressed that the accident should satisfy the required
components of negligence, that are duty, breach of duty, causation, and injury. In res ipsa
loquitur, the elements of duty of care, breach and causation are inferred from an injury that
doesn't normally occur in absence of negligence.

Elements of res ipsa loquitur

1. The injury is of the type that doesn't normally occur in absence of negligence.
2. The injury is caused by an agency or instrumentality inside the exclusive management
of the defendant.
3. The injury-causing accident isn't the result of any voluntary action or contribution on
the part of the plaintiff.
4. Defendant‘s non-negligent clarification doesn't utterly justify plaintiff‘s injury.

1.4.2.4- Proof of damage

30
Even though there's breach of duty, and also the explanation for some injury to the
plaintiff, a litigator might not recover unless he will prove that the defendant's breach caused
a monetary injury. This could not be mistaken with the wants that a plaintiff needs to prove
hurt to recover. As a general rule, a plaintiff will solely claim a legal remedy to the purpose
that he proves that he suffered a loss. It means that one thing over monetary loss could be a
necessary component of the plaintiff's case in negligence. Once damages don't seem to be a
necessary component, a plaintiff will win his case while not showing that he suffered any
loss; he would be entitled to indemnification and the other damages consistent with proof.
Negligence is completely different therein the plaintiff should prove his loss, and a selected
kind of loss, to recover. In some cases, a defendant might not dispute the loss, however the
need is important in cases wherever a defendant cannot deny his negligence, however the
plaintiff suffered no loss as a result. If the plaintiff will prove monetary loss, then he can even
get damages for non-pecuniary injuries, such as emotional distress. 45

The requirement of monetary loss is shown in a variety of ways. A plaintiff who is physically
harmed by allegedly negligent conduct could show that he had to pay a bill. If his property is
broken, he might show the financial gain lost as a result of he couldn't use it, the value to
repair it, though he might solely recover for one in every of this stuff.

The harm may be physical, strictly economic, both physical and economic (loss of earnings
following a private injury), or reputational (in a defamation case).

In English law, the right to assert for strictly economic loss is limited to variety of 'special'
and clearly outlined circumstances, typically concerning the character of the duty to the
plaintiff as between client and lawyers, financial advisers, and different professions wherever
money is central to the consultative services.

Emotional distress has been recognized as an unjust tortious wrong. Generally, emotional
distress damages had to be parasitic. That is, the plaintiff might recover for emotional distress
caused by injury; however provided it was with a physical or pecuniary injury.

A claimant who has suffered solely emotional distress and no monetary loss wouldn't recover
for negligence. However, courts have recently allowed recovery for a plaintiff to recover for
strictly emotional distress underneath some circumstances. The state courts of California

45
D.Simon , Angus Johnston, Basil Markesinis , Markesinis and Deakin's Tort Law. (Oxford University Press, 2003).

31
allowed recovery for emotional distress alone – even in the absence of any physical injury,
once the plaintiff physically injures a relative of the plaintiff, and the plaintiff witnesses it.46

1.4.2.5- Negligent mis-statement

The tort of negligent statement is outlined as an ―inaccurate statement created honestly

however carelessly typically within the kind of recommendation given by a party with special
talent/knowledge to a party that doesn‘t possess this skill or knowledge‖
In order to prove that negligent mis-statement occurred, one has to prove that the components
of negligence were broken as most torts have common elements that include;

FAULT; there needs to be proof conferred showing that one party committed the tortuous act
either by choice or negligently.

ACTUAL DAMAGE; the plaintiff would have the liability to prove that they suffered actual
damage/injury/loss as a results of the tortuous act by the party.

REMEDY; because the law of Torts is bothered with compensating the victim instead of
punishing the offender, the rule applied by the Courts is to place the plaintiff/victim into an
edge they enjoyed before the wrongful act occurred.

DUTY OF CARE: A person/party should at the start owe a duty of care to the opposite
person/party so as to be chargeable for negligence.

1.4.3-Nuisance:

Under the common law, persons in possession of material possession (land house owners,
lease holders etc.) are entitled to the quiet enjoyment of their lands. But this does not embrace
guests or those that are not thought of to own an interest within the land. If a neighbour
interferes with that quiet enjoyment, either by making smells, sounds, pollution or the other
hazard that extends past the boundaries of the property, the affected party could create a
claim in nuisance.

Legally, the term nuisance is historically employed in three ways:

46
D.Simon, Angus Johnston, Basil Markesinis ,Markesinis and Deakin's Tort Law. (Oxford University Press, 2003).

32
 I. To explain an activity or condition that's harmful or annoying to others (e.g., indecent
conduct, a garbage dump or a smoking chimney)
II. To explain the hurt caused by the before-mentioned activity or condition (e.g., loud
noises or objectionable odours)
III. To explain a legal liability that arises from the mix of the above two. However, the
"interference" wasn't the results of a neighbour stealing land or invasive on the land.
Instead, it arose from activities happening on another person's land that affected the
enjoyment of that land. 47

The law of nuisance was created to prevent such teasing activities or conduct once they
immoderately interfered either with the rights of different personal landowners (i.e., personal
nuisance) or with the rights of the overall public (i.e., public nuisance)

A nuisance is an unreasonable interference with the public's right to property. It includes

conduct that interferes with public health, safety, peace or convenience. The
unreasonableness is also proved by statute, or by the character of the act, together with
however long, and the way dangerous, the results of the activity is also.

A private nuisance is solely a violation of one's use of quiet enjoyment of land. It does not
embrace trespass.

To be a nuisance, the amount of interference should rise on top of the just aesthetic. As for
example if ones neighbour paints their house purple, it should offend one; but, it does not rise
to the amount of nuisance. In most cases, traditional uses of a property which will represent
quiet enjoyment cannot be restrained in nuisance either. As for example, the sound of a
crying baby is also annoying, however it's an expected a part of quiet enjoyment of property
and doesn't represent a nuisance.

Any affected possessor has standing to sue for a private nuisance. If a nuisance is widespread
enough, however encompasses a public purpose, it's typically treated at law as a public
nuisance. Owners of interests in material possession (whether owners, lessors, or holders of
an easement or different interest) have standing solely to bring nuisance suits. 48

1.4.3.1- Public nuisance

47
William L. Prosser, Private Action for Public Nuisance, 52 Va. L. Rev. 997, 997 (1966).
48
Chisholm, Hugh, ―Nuisance", Encyclopaedia Britannica 19 (Cambridge University Press, 1911).

33
A public nuisance is an unreasonable interference with the public's right to property. It
includes conduct that interferes with public health, safety, peace or convenience. The
unreasonableness is also proved by statute, or by the character of the act, together with how
long, and how dangerous, the results of the activity are also.

In English criminal law, public nuisance could be a category of common law offence within
which the injury, loss or harm is suffered by the area people as a whole instead of by
individual victims.

1.4.3.2- Private nuisance

Private nuisance could be a continuous, unlawful and indirect interference with the utilization
or enjoyment of land, or of some right over or in reference to it.

Essentials

Continuous Interference

There should be a nonstop interference over an amount of one‘s time with the claimant's use
or enjoyment of land.

De Keyser's Royal Hotel v Spicer Bros Ltd - screaming pile driving at the hours of darkness
throughout temporary building works was held to be a non-public nuisance.

There are few rare examples wherever one act has been held to amount to a non-public
nuisance:

Crown River Cruises v Kimbolton Fireworks it was held that a firework show entrenched a
nuisance once it was absolutely inevitable that for 15-20 minutes dust of a ignitable nature
would light upon close property, thereby damaging the property in the ensuing fire.

Unlawful Interference/Unreasonableness

The plaintiff should prove that the defendant's conduct was unreasonable, thereby creating it
unlawful. The rule is set on uteretuoutalienum non laedas (So use your own property as to not
injure your neighbour's). On impairment of the enjoyment of land, thegoverning principle is

34
that of reasonable user - the principle of give and take as between neighbouring occupiers of
land. 49

The court can take the subsequent factors under consideration in assessing the reasonableness
or otherwise of the defendant's use of land:

The neighbourhood

It was expressed in Sturges v Bridgman (1879) eleven Ch D 852 that: "What would be a
nuisance in Belgravia Square wouldn't essentially be thus in Bermondsey."

Sensitivity of the plaintiff

The standard of tolerance is that of the 'normal' neighbour. Therefore, abnormally sensitive
plaintiffs are unlikely to achieve their claims for personal nuisance. Contrast:

Robinson v KilvertThe Petitioner's claim was for harm to abnormally sensitive paper kept in
a cellar that was plagued by heat from neighbouring premises. The claim failed as standard
paper wouldn't get plagued by the temperature. In McKinnon Industries v Walker, fumes
from the Defendant's mill damaged delicate orchids. Since the fumes would have broken
flowers of standard sensitivity there was a nuisance.

The utility of the defendant's conduct

It will be unlikely for an activity to result in a nuisance if it's helpful for the community as a
whole taking under consideration all the encompassing circumstances, such as
neighbourhood and also the length of the activities.

Malice

It is not necessary to determine malicious behaviour on the part of the litigator however it
should be thought to be proof of unreasonableness. Contrast:

In Christie v Davey, the Petitioner had been giving music lessons in his dwelling house for
many years. The defendant, irritated by the noise, banged on the walls, shouted, blew
whistles and beat tin trays with the malicious intention of annoying his neighbour and
spoiling the music lessons. An injunction was granted to restrain the Defendant's behaviour.

49
―Private Nuisance‖, available at: http://www.lawteacher.net (Last Modified on August 10, 2015).

35
In Bradford Corporation v Pickles, the Petitioner deliberately caused diversion of water
flowing through his land, far from his neighbour's property. The Petitioner had the intention
to force them to buy his land at an inflated worth. It was held that he was committing no legal
wrong as no-one encompasses a right to uninterrupted flow of water that percolates through
from neighbouring property.

In Hollywood Silver Fox Farm v Emmett the defendant, impelled by pure spite, deliberately
fired guns close to the boundary of P's land so as to scare the P's silver foxes throughout
breeding-time. It was considered to be a nuisance following Christie v Davey. 50

The state of the defendant's land

An occupier should take such steps as are reasonable to forestall or minimise dangers to
neighbouring land from natural hazards on his land.

In Leakey v National Trust- the defendant had land upon that there was an oversized mound
of earth that was being bit by bit scoured by natural processes, and was sliding onto the
Petitioner's property. It was held that an occupier should take such steps as are reasonable to
forestall or minimise dangers to neighbouring land from natural hazards on his land.

Interference with the utilization or enjoyment of land or some right over or in reference
to it

The claimant should typically prove harm, i.e. physical harm to the land itself or property; or
injury to health, as for instance headaches caused by noise that prevents someone enjoying
the utilization of their land. Case examples include:

In Bliss v Hall (1838) 4 Bing NC 183 - smells and fumes from candle creating offensive
invasion into neighbouring land. Solloway v Hampshire brass - permitting tree roots to suck
wet from neighbouring soil, thereby inflicting subsidence.

1.4.3.3- Remedies

Under the common law, the sole remedy for a nuisance was the payment of damages.
However, with the event of the courts of equity, the remedy of an injunction
becameobtainable to forestall a litigator from continuation of the activity that caused the

50
―Private Nuisance‖, available at: http://www.lawteacher.net (Last Modified on August 10, 2015).

36
nuisance and specifying penalty for contempt if the litigator is in breach of such an
injunction.

The law and social science movement has been concerned in analyzing the foremost
economical alternative of remedies given the circumstances of the nuisance. In Boomer v.
Atlantic Cement Co.51 a cement plant interfered with number of neighbours, however

the price of obliging with a full injunction would have been much more than a good value of
the cost to the plaintiffs of continuation. The New York court allowed the cement plant
owner to 'purchase' the injunction for a mere amount—the permanent damages. In theory, the
permanent damage quantity should be the worth of all future damages suffered by the
plaintiff.

1.4.4- Trespass:

Trespass is outlined by the act of knowingly getting into another person‘s property with no
permission. Such action is held to infringe upon a property owner‘s right to enjoy the
advantages of possession. According to Tort Law, a possessor could bring a Civil Law suit
against a entrant so as to recover damages or receive compensatory relief for injury suffered
as an immediate results of a trespass. In an action for tort, the claimant should prove that the
bad person had, however knowingly violated a duty to respect another person‘s right to
property that resulted in direct injury or loss to the claimant.52

1.4.4.1- Trespass to Land

Trespass to land is these days the tortuous wrong most ordinarily related to the term trespass;
it takes the shape of "wrongful interference with one's possessory rights in [real] property".
Generally, it's not necessary to prove hurt to a possessor's wrongfully protected interest;
liability for unintentional trespass varies by jurisdiction. "At common law, each unauthorized
entry upon the soil of another was a trespass", however, as per tort law established by the
Restatement of Torts, liability for unintentional intrusions arises solely underneath
circumstances evincing negligence or wherever the intrusion concerned a extremely
53
dangerous activity.

1.4.4.2- Trespass to Person

51
Boomer v. Atlantic Cement Co ,26 N.Y.2d 1020 ,1970 N.Y
52
Elliott, Catherine and Francis Quinn,‘ Tort Law‘, (Pearson Longman, 2007).
53
ibid

37
Trespass to the person traditionally comprised of six separate trespasses: threats, assault,
battery, wounding, mayhem, and maiming. Through the evolution of the common law in
varied jurisdictions, and also the codification of common law torts, most jurisdictions
currently broadly speaking acknowledge three trespasses to the person: assault, that is "any
act of such a nature on excite a fear of battery"; battery, "any intentional and unpermitted
contact with the plaintiff's person or something attached to that and much known with it"; and
imprisonment, the "unlawful obstruction or deprivation of freedom from restraint of
movement".

Trespass to chattels, additionally referred to as trespass to merchandise or trespass to non-

public property, is outlined as "an intentional interference with the possession of private
property proximately inflicting injury". Trespass to personal estate doesn't need a showing of
damages. Merely the "intermeddling with or use of the private property" of another provides
explanation for action for trespass. Since CompuServe Inc. v. Cyber Promotions, varied
courts have applied the principles of trespass to personal estate to resolve cases involving
unsolicited bulk e-mail and unauthorized server usage.54

1.4.5- General Defences:

In spite of a plaintiff providing proof for the existence of all the essential components of a
tortious wrong, it's potential in some cases for the defendant to require sure defences which
may take away his liability, These defences are nothing however specific things or
circumstances within which a defendant is given a relinquishing for his wrongdoing action.
These are as follows -

1.4.5.1- Volentinon fit injuria

When someone consents for infliction of hurt upon himself, he has no remedy for that in tort.
That means, if someone has given consent to try and do something or have given permission
to a different individual to try and do something, and if he's harmed due to that, he cannot
claim damages. As for instance, A purchases tickets for a Car race and while witnessing the
race, an collision of cars happens and also the person is harmed. Here, by agreeing to watch
the race, that could be a risky sport, it's assumed that he voluntarily took on the chance of
being hurt in an accident. Thus, he cannot claim compensation for the injury. Such consent
may be implied or expressed. As for instance, someone practising the game of Fencing with

54
Elliott, Catherine and Francis Quinn, Tort Law, (Pearson Longman, 2007).

38
another impliedly consents to the injury which may happen while taking part in it. In
Woolridgevs Sumner196355, the plaintiff a creative person was taking pictures at a horse
show, throughout that one horse rounded the bend too quick. Because the horse galloped
furiously, the litigator was frightened and he fell within the course. He was seriously harmed.
It was held that the defendants had taken correct care in closing the course and also the
litigator, by being within the show, gave implied consent to take the chance of such an
accident. The defendants weren't held liable.

However, the action inflicting hurt should not transcend the limit of what has been consented.
As for instance, in a sport of fencing, someone consents to an injury that happens while
taking part as per the rules. If he's harmed as a result of an action that violates the game rules,
he will claim compensation since he had never consented to an injury while taking part in the
game where rules were not followed. In LaxmiRajanvs Malar Hospital 199856, a girl
consented for a surgery to get rid of a lump from her breast. However the hospital removed
her womb furthermore with none real reason. It was held that removing of her womb exceed
on the far side what she had consented for.

Also, the consent should be free. It should not be due to any compulsion. Thus, if a servant
was compelled by the master to try and do an explicit task despite his protests, and if he's
harmed whereas doing it, the master cannot take the defence of volenti non match injuria as a
result of the consent wasn't free. 57

Exceptions - within the following conditions, this defence cannot be taken though the
plaintiff has consented-

1. Rescue Conditions - once the plaintiff suffers injury while saving somebody. As for
instance, A's horse is out of management and paces towards a busy street. B realizes that if
the horse reaches the road it'll hurt many folks then he courageously goes and held's the
horse. He harmed in doing thus and sues‘ A. Here A cannot take the defence that B did that
act with his own consent. It‘s considered as a justified action in public interest and also the
society ought to reward it rather than preventing him from obtaining compensation.

2. Unfair Contract Terms - wherever the terms of a contract are unfair, the defendant
cannot take this defence. As for instance, though a laundry, by contract, absolves itself of all

55
Wooldridge v Sumner, 2 QB 43(1963).
56
Lakshmi Rajan v. Malar Hospital III (1998) CPJ 586.
57
R.K.Bangia, Law of Torts ( Allahabad Law Agency,Faridabad,17th edn.,2003).

39
liability for harm to garments, someone will claim compensation since the contract is unfair
to the customers.58

1.4.5.2- Mistake

Generally, mistake isn't a legitimate defence against an action of tort. Thus, causing hurt to
someone underneath the mistaken belief that he's invasive on your property, won't be
defendable. However, in sure cases, it may well be a legitimate defence. As for instance,
within the case of malicious prosecution, it's necessary to prove that the defendant acted
maliciously and while not an affordable cause. If the prosecution was done solely by mistake,
it's not unjust. Further, honest belief in the truth of a statement could be a defence against an
action for deceit.59

1.4.5.3- Act of God

An act of God in an exceedingly legal sense is a rare prevalence of circumstance that couldn't
be foretold or prevented and happens due to natural causes. No one can predict, prevent, or
shield from a natural disaster such an earthquake or flood. Thus, it's unreasonable to expect
someone to be chargeable for damages caused by such acts of God. There are two essential
conditions for this defence - the event should flow from to a natural cause and it should be
extraordinary or one thing that could not be anticipated or expected. As for instance,
significant rains within the monsoon are expected and if a wall falls and injures somebody, it
cannot be termed an act of god as protection for such expected conditions ought to be taken.
However if a building falls due to a huge earthquake and injures and kills individuals, this
defence is used. In RamalingaNadarvs Narayan Reddiar 60, it was held that criminal activities
of an unruly mob aren‘t an act of God.

1.4.5.4- Inevitable accident

Accident means a surprising occurrence of a thing that would not be foretold or prevented. In
such a case, the defendants won't be liable if that they had no intention to cause it and if the
litigator is harmed due to it. As for instance, in Stanley vs Powell 1891 61, the plaintiff and
also the defendant were members of a shooting party. The defendant shot a bird however the
bullet ricocheted off a tree and hit the plaintiff. The defendant wasn't held liable as a result of

58
Ibid
59
R.K.Bangia, Law of Torts ( Allahabad Law Agency,Faridabad,17th edn.,2003).
60
RamalingaNadarvs Narayan Reddiar, AIR 1971, Kerala 197.
61
Stanley vs Powell (1891) 1 QB 86.

40
it since it was an accident and also the defendant had no intention and neither he could have
prevented it.

However, the defence of inevitable accident isn't a license to negligence. As for instance, A
has employed B's automobile. While driving, one of the tires burst and caused accident
injuring A. Here, if the tires were wiped out and were in poor shape, it might be negligence of
B and he would be held chargeable for A's injuries.

1.4.5.5- Statutory authority

An act that's approved by the law-makers or is finished upon the direction of the law- makers
is exempted from tortious liability even if in traditional circumstances, it might be a tortious
wrong. Once an act is finished underneath the authority of an Act, it's an entire defence and
also the victim has no remedy except that's prescribed by the statute. In Vaughan vs Taff
Valde Rail Co 186062, sparks from an engine caused fireplace in appellant's woods that
existed in his land neighbouring the railway track. It was held that since the company was
licensed to run the railway and since the company had taken correct care in running the
railway, it absolutely was not chargeable for the harm.

1.4.5.6- Plaintiff the wrong doer

A person cannot make profit of his own wrong. This principle has been in use since a
protracted time because it is simply and equitable. As for instance, someone trespasses
another's property is injured as a result of darkness. He cannot claim compensation since he
was harmed due to an action that was wrong on his half. However, this defence exists
providing the injury happens due to a wrongful act of the plaintiff. It doesn't exist if the injury
happens due to a wrongful act of the defendant though the plaintiff was doing a wrongful but
unrelated act. As for instance, in Bird vs Holbrook 182863, the plaintiff was invasive on the
defendant's property and he was hurt due to a gun. The defendant had place spring guns with
no notice and was therefore held liable.

1.5.5.7- Self Defense

As per section 96 of IPC, nothing is an offence that's done in exercise of the right of personal
defence. Thus, law permits the utilization of reasonable and necessary force in preventing
hurt to body or property and injuries caused by the utilization of such force don't seem to be
62
Vaughan vs Taff Valde Rail Co [1860] EngR 749.
63
Bird v Holbrook (1828), 4 Bing 628, 130 ER 911.

41
unjust. However, the force should be just and not excessive. In Bird vsHollbrook 1892, the
defendant used spring guns in his property with no notice. It was held that he used excessive
force; hence he was chargeable for plaintiff's injury even if the plaintiff was invasive on his
property.

1.4.5.8- Necessity

If the act inflicting harm resulted to forestall a bigger hurt, it's excusable. For example, a Ship
ran over a tiny low boat causing hurt to two individuals so as to forestall collision with
another ship which might have hurt many individuals is excusable. Thus, in Leigh vs
Gladstone 190964, force feeding of a hunger striking captive to save her was held to be an
honest defence to an action for battery.

To sum up, in this chapter the researcher studied the evolution and basic principles of tort law
as it is important for an indebt analysis of tort law in India. In the next chapter the researcher
shall study and analyse the existing laws and tort system of countries namely, The United
Kingdom, The United States of America and China which are considered to be countries with
modern and developed legal framework.

64
Leigh vs Gladstone (1909) 26 TLR 139.

42
 CHAPTER 2

ANALYSIS OF PRESENT TORT SYSTEM IN INDIA

2.1 Introduction

India is not an exception when one tries to highlight the importance and effectiveness of tort
law in implementing and protecting an individual‘s civil rights. In this era when on one hand
people are more aware of their civil rights they are expected on another hand to act more in
civilised manner, as rights and duties are sides of a coin. Any divergence from respecting
another individual‘s civil rights definitely should lead to some consequence. It is at this very
sphere where tort law comes into action. Tort helps to restore the victim to his original
position when there is infringement of his civil rights irrespective of whether actual injury
was caused to him or not. So India like any other Nation cannot be an exception and
recognises tort law as an important branch of civil law to provide remedy to the victims.

In India, concept and principles of tortuous liabilities have been embodied in crude form in
various legislations. So, when one tries to find out if the present form is better or it is time to
opt for a well drafted codified law in this filed too, the first thing which is needed is to
understand the evolution and present condition of tort law in India, Henceforth in the
beginning of this chapter the researcher discusses briefly the evolution of tort law in India in
three different eras namely, Pre-British, British India and Independent India.

2.1.1- Tort Law in Pre-British India

Tort in India was also in existence before the British raj. Indian history always speaks of
rendering justices to the victims, which was mostly either in the form of giving physical
punishment to the culprits or imposing fines on the wrong doer. The concept of giving
compensation was not much common but still the existence of the Sanskrit word Jimha
meaning ‗crooked‘ in ancient Hindu text on law conveying ‗tortious of fraudulent conduct‘
proves that the concept of tort was present though in different form. 65

In Pre-British era India tort meant an action imposing civil liability which is evident by the
existence of the word ‗Vadicrat‘ which referred to a private action by plaintiff. Under such

65
Dr.Minal H Upadhay, Law of Tort in India, IJRSML, February 2014.

43
action the plaintiff could claim compensation as remedy. In ancient India the King rendered
justice mainly in between two types of wrongs. One termed ‗Nrapasraya‘ which were
actions taken at the instance of the ruler or the King and second termed ‗Vadikrat‘ which
were instituted at the instance of private individuals. Apart from this distinction there was no
room for distinct differences between private and public wrongs in the ‗Sastras‘as both the
wrongs have an inclination of merging with each other. This was beneficial for the private
individual who could not bear the cost of litigation and in such cases the one could get
compensation as the King used to bear the cost. Moreover, law of tort of ancient India was
based on the concept of ―Dharma‖ which gave prominent importance to individual‘s duty
toward others.66

2.1.2- Tort Law in British India

With the advent of British in India, came the rules and principles which were to be applied in
courts in India established by the British Government. Like any other branch of law, tort law
was also started to be applied in India, just making it suitable to the Indian conditions. It is
worthy to mention here that the English law of tort was itself based on the ‗common law of
England‘, which meant that the principles of ‗justice, equity and good conscience‘ were
mostly used to disposing matters in the interest of justice.

It was the Privy Council which was entrusted with the job of interpreting ‗justice, equity and
good conscience‘ best suited to the ‗Indian society and the circumstances‘. The Indian court
also had to think twice before applying a English principle in India, as there was a major
difference between the need and wants of the two societies and cultures. Hence, it can be said
that the application of the English principles and law was limited and selective. However, the
Privy Council was of the view that it is the strength of English common law to adapt and fit
into the new circumstances that made it possible to apply it into Indian society. Moreover,
there was freedom to modify the common law or apply new rules of English statutes if it was
the want of ‗justice, equity and good conscience‘. The Indian courts were then allowed to
reject the common law which was outmoded and in place of it to apply new laws. ‗For
example, the principles of English statute, the Law Reform (Contributory Negligence) Act,
1945, had been applied in India although there was still no corresponding Act enacted by
Parliament in India.‘67

66
S.K.Purohit, Ancient Indian Legal Philosophy, Deep and Deep Publication, 1994
67
Dr.Minal H Upadhay, Law of Tort in India, IJRSML, February 2014.

44
4.1.3- Tort Law in Independent India

In the year 1947 when finally India got independence from the British rule, new set of rules
and laws in the form of various statutes and enactment started taking shape and then were
implemented in India. But most of these statutes were largely based on English Principles
or Common law was ‗justice, equity and good conscience‘ played a vital role. To name a few
like Indian Penal Code, Indian Evidence Act, Code of Civil Procedure in criminal law and
Transfer of Property Act, Indian Contract Act etc in civil law. Fortunately or unfortunately it
was the tort law which though in spite of various attempts to get a new act or statute as
evident from the first report of Law Commission was left untouched. Still the courts of
independent India followed the common law principles in regard to suits were damages were
claimed under tort law based on ‗justice, equity and good conscience‘. They could have a
divergent view when a particular rule was found to be unreasonable or not suitable to
conditions then prevalent in independent India.

Gradually, with increasing effect of globalisation on India, increased the number of cases
where claims for damages started to be made under law of tort. Then, it was time when many
jurists have raised concern and expressed their opinion regarding the need of modified law of
tort in India.

In this context, in M.C.Mehta v. Union of India 68, Justice Bhagwati observed- ―We have
to evolve new principles and lay down new norms which will adequately deal with new
problems which arise in a highly industrialized economy. We cannot allow our judicial
thinking to be constructed by reference to the law as it prevails in England or for the matter of
that in any foreign country. We are certainly prepared to receive light from whatever source it
comes but we have to build our own jurisprudence.‖
To mention a few of them ‗the development of the absolute liability rule in the M.C. Mehta
case and the Supreme Court‘s direction on Multinational corporation Liability, recognition of
Governmental tort by employees of government, principles on legality of State, evolution of
tort of sexual harassment, grant of interim compensation to a rape victim, and award of
damages for violation of human rights under writ jurisdiction, including a recent Rs.20

68
M.C. Mehta v. Union of India , AIR 1988 SC 1037

45
croreexemplary damages in the Upahaar Theatre fire tragedy case by the Delhi High Court
are significant changes in the tort law of independent India.‘69

A number of statutes were enacted were the principles of tort law were modified and
implemented in scattered form such as the ‗Public Liability Insurance Act, 1991‘,
‗Environment Protection Act, 1986‘, ‗Consumer Protection Act, 1986‘, ‗Human Rights
Protection Act, 1998‘, ‗Pre-Natal Diagnostics Techniques Regulations and Prevention of
Misuse Act, 1994‘ the new principles of tortious liability were included in India. ‗The Motor
Vehicles Act, 1988‘ and judicial interpretation contributed to the development of accident
claims. The unfortunate Bhopal Gas Leak disaster also triggered a new path of tort law,
leading to environment tort, toxic torts, governmental torts, MNCs liability, congenital torts,
stricter absolute liability, etc.

The researcher below has made an attempt to analyse the present Indian Laws on State
Liability, Product Liability and Public Nuisance Litigation.

2.2- State Liability and Indian Tort Law

2.2.1- Introduction

The concept of State Liability is one of the most useful aspects of law of tort where the
victims can claim damages from the State due to the loss incurred by them from the act of the
State while performing its functions. In India the doctrine of Sate Liability gradually evolved
with time. So, before analysing the present Indian law on State Liability under law of torts it
becomes necessary to study the gradual moulding of State Liability into its present form.

2.2.2- State Liability in Pre-British India

In Pre-British India were there were rule of Kings in various kingdoms, the doctrine of State
liability was not available in its present form where the King could be held vicariously liable
for the wrongs of his servants. But since during that era predominancewas given to the ‗Rule
of Law‘ more commonly known as ‗Dharma‘ which meant ‗justice‘, even the King was not
above law. If the ends of justice required that the victim deserved compensation for the loss
incurred the King was not an exception. According to the ‗Vedic scriptures‘ such as
‗Puranas‘ and ‗Smritis‘, the King‘s power was derived from ‗Dharma‘ and he had no
independent authority. The King was also subject to law and his kingship was solely

69
Dr.Minal H Upadhay, Law of Tort in India, IJRSML, February 2014.

46
dependent on his performance of duties. There was no room of arbitrariness in ancient India‘s
legal jurisprudence. Any breach of duty towards citizen also resulted to forfeiture of kingship.

‗The origin and development of the State as well as the duty of the king to maintain the rule
of law has been beautifully explained in Shantiparva of Mahabharat. It discloses that in
ancient Indian civilization great importance was attached to Dharma. The goal of polity is
the fulfilment of Dharma. Generally, it is used to mean justice, what is right in given
circumstance, moral, religious, pious or righteous conduct, being helpful to living beings,
giving charity or alms, natural qualities or characteristics or properties of living being and
things, law, usages or custom having the force of law and also the royal edict. Dharma
constitutes the foundation of all affairs in the world and people respect one who adheres to
Dharma. It insulates man against sinful thoughts and actions. Everything in this world is
founded on Dharma and therefore it is Supreme Rajdharma which laid down the Dharma of
the king was paramount. All Dharmas are merged in Rajdharma and it is, therefore, the
Supreme Dharma.‘70

The two main texts of ancient India law namely the ‗Srutis‘ and the ‗Smritis‘ reflected the
doctrine of State liability in crude form. According to these texts the King was held not only
responsible for his actions but was also held liable for any violation of duty done by any of
his man under the administration. Manu ordains that ‗the king must restore the stolen
property when recovered and must compensate when not recovered‘. YajnavalkyaSmritinsays
that ‗in cases where theft could not be detected or the stolen property could not be recovered
the king‘s officers were to be blamed and the victim was to be compensated for the
unrecovered stolen property by the king‘.Kautilya adds a step forward when he says that ‗if
the stolen property of the subjects could not be recovered by the officers the king has to
compensate the aggrieved person out of his treasure‘. The State liability was not only
limited to that but it also extended when any officer appointed by the King to protect his
subjects unscrupulously seized the victim‘s property.71Thus, according to the ancient law of
the Hindus, not only the king but his servants were also made liable vicariously and severally
for wrongs committed against their subjects.

By the end of 12th century India came under rule of Muslim invaders like Ghazni
Mohammad and then by Mohammad Ghori by defeating the Hindu rulers which marked the

70
GyanPrakashVerma, State Liability in India: Retrospect and Prospects
71
N.C SenGupta , Evolution of ancient Indian Law, (Tagore Law Lectures (1950)-(1953).

47
establishment of Muslim rule in India around 1206 A.D. ‗The Muslim administration which
was started in India by the slave Dynasty was succeeded by many Dynasties namely Khiljis,
Tughluqes, Sayyads, Lodhis, Sultans and Moghuls. The last Moghul emperor was succeeded
by the queen Victoria in the year 1858.‘72

There was not much difference in Muslim law and Hindu law regarding applicability of State
liability. Under Muslim law also the ruler had no separate authority but was subordinate to
the rule of law. All the Muslim rulers had to rule according to the tenets of the ‗koran‘, which
was the sacred law. The ‗supremacy of shar or Islamic Law‘ was the basis of all Muslim
rules. According to it ‗it is shar or Islamic law before whom the rulers and the ruled were
equal‘. According to cases available on records, in ordinary courts of law the subjects were
allowed to sue the monarchs. But the remedy in an action against the King (State) varied
from one ruler to another and so also the conviction under Islamic Law or ‗Shar‘. Sher Shah
Suri declared that ‗the State was not above law and no partiality was to be shown to it in the
dispensation of Justice.‘ The Great ruler Akbar encouraged complaints against his servants
following the principle of justice and also issued proclamations in that regard. There are
instances where in an action against the executive officers compensation was paid to the
victims and in some cases if deserved out of the State treasury, giving room to the principle
of State Liability under Muslim Rule in India. In records there are instances where the State
was held vicariously liable in Muslim ruled India. As for example, in ‗Widow v. King Ghvas
(about 1490 A.D) the son of a widow lady was injured by the King mistakenly by an arrow.
A complaint was filed by the lady before the ‗Kazi‘. After initial hesitation the king was
summoned by the Kazi before the court. Both the parties were heard and on finding the King
guilty, the court passed an order asking the king to pay damages to the widow lady. The King
too obeyed the order showing that the king was not above law. But gradually there was a shift
of liability from the King (State) to the servants if the latter could be proved to be personally
liable. In such cases the officers were sentenced to imprisonment. ‗In Shiqahdarv. King it was
held that a police officer was personally responsible for the wrongful arrest of a citizen and
was liable to pay compensation.‘73 Though there were no established rules or principles of
State liability but undoubtedly such instances were an indication that the State was slowly
trying to shift its liability by choosing discretionary power in place of justice to decide if the
subjects‘ claim of compensation was to be allowed or not.

72
M. Rama Jois, Legal and Constitutional History of India , Vol. II (1990), p. 2
73
K.C.Joshi, Governmental liability in tort with Reference to India, (1985)

48
2.2.3- Tortious Liability of the State under British Rule

The next phase of Indian legal jurisprudence started with the advent of East Indian Company,
which initially came as a trading company then gradually with grant of certain rights like
‗Diwani‘ rights i.e. the right to deal with civil disputes it lead to the encroachment of the
Indian legal system. This in turn meant that the Common Law of England which was based
on ‗justice, equity and conscience‘ started to be used as principles in decided disputes in
India. Hence, raising a question if the victims were granted relief when the company was held
tortuous liable. The first judicial interpretation of State liability during the East India
Company was made in ‗John Stuart's case, 1775‘. It was held for the first time that ‗the
Governor General-in-Council had no immunity from Court's jurisdiction in cases involving
dismissal of Government servants.‘‗InMoodaly v. The East India Company 1775 (1 Bro-CC
469) the Privy Council expressed the opinion that Common law doctrine of sovereign
immunity was not applicable to India.‘

Finally, in 1857 due to the famous ‗Sepoys Mutiny‘ which is also called ‗first war of
independence by Indians‘ came the end of the Company‘s Government and with the
enactment of the ‗Government of India Act, 1858 (the Act, of 1858)‘ the British Crown was
vested with the authority of the Government of India. The Act of 1858 was not only a turning
point in the Indian political and Constitutional History but also in the law relating to vicarious
liability of the State.74

(i) The Government of India Act, 1858:

Though the administration of Indian Government was taken over by the Crown but while
deciding the State‘s liability the English Common Law doctrine ‗The king can do no wrong‘
was still not implemented. In fact section 65 of the Government of India Act of 1858laid
clearly that the secretary of State in Council can be sued and held liable for its acts and
contracts, which declared:

―The Secretary of State in Council shall and may sue and be sued as well in India as in
England, by the name of the secretary of State in council as a body corporate; and all persons
and Bodies politic shall and may have take the same suits, remedies and proceedings, legal
and equitable, against the secretary of State in Council of India as they could have, done
against the said Company; and the property and effects hereby vested in Her Majesty for the

74
M. Rama Jois, Legal and Constitutional History of India, Vol. II (1990), p. 2

49
purposes of the Government of India or acquired for the said purposes, shall be subject and
liable to the same judgements and executions as they would, while vested in the said
Company have been liable to in respect of debts and liabilities, lawfully contracted and
incurred by the said Company‖.

This meant that the secretary of the State was in the same footing as a body corporate which
had the right to sue and also could be sued when held liable. The doctrine of ‗King can do no
wrong‘ had no place tilled then in Indian Tort Law. However, the only immunity which was
granted to the members of the council was like any other corporate body was by section 68 of
The Government of India Act, 1858, that they would not be personally liable. But, landmark
case on this section, Oriental Steam Navigation v. Secretary to the State of India (Bombay
High Court Reports Vol. V, 1868-69) Appendix I, introduced a new dimension of tortuous
liability of State by introducing the concept of Sovereign and Non-sovereign functions while
deciding the liability of the Company. The Calcutta High Court in the said case held that
there was a great and clear distinction between acts done by the public servants while
exercising the sovereign authority delegated to them and other actions taken while
performing other duties. The Court held that East India Company were not sovereign, drew
distinction between sovereign acts in respect of which State was not liable and the other
category i.e. non sovereign in respect of which the Secretary of the State was made liable. In
the said case due to negligence of a servant of Government working in Dockyard an accident
happened and horse of a carriage hired by an individual was injured. Calcutta High Court had
in a subsequent decision adhered to the same view but the Bombay and Madras High Courts
did not agree with the same. The Madras High Court in Secretary of State v. HariBhanjj
(1882) ILR Madras 273 held that immunity of East India Company extended only to "Acts of
the State".75

(ii) The Government of India Acts, 1915 and 1919:

The Parliament of Britain with an aim to improve the Constitution and administration of the
Indian Government under the Crown later on enacted the Government of India Act, 1915 (the
Act of 1915). The Act of 1915 clearly mentions in its Preamble that:

―Whereas it is the declared policy of parliament to provide for the increasing association of
Indians in every branch of Indian administration, and for the gradual development of self-

75
Justice U.C.Srivastava, Tortious Liability Of State Under The Constitution, 1997.

50
governing institutions, with a view to the progressive relation of responsible Government in
British India as an integral part of the empire‖. The liability of the secretary of State was
envisaged in section 32(1) and (2) of the Act of1915 mentions:

―(1) Secretary of State in council has the right to sue and may also be sued using the name of
the secretary 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 his
Act had not been passed‖.

Hence, this Act made it quite clear that regarding tortuous liability of State, the State lies in
the same footing as was of the East India Company. No immunity was granted to the State.
Thereafter, ‗The Government of India Act, 1919‘also made no changes in the principle of
vicarious liability of the State and section 32 of the Act of 1915 was reproduced as section 32
of the Act of 1919.

(iii) The Government of India Act, 1935:

Gradually with the evolution of the society, the involvement of the State in various activities
increased so as to also the liabilities for wrongs committed by its servants while discharging
their duties. The Crown felt the necessity to provide immunities and certain exemptions to its
officers from the claims of the subjects who were mostly the natives Indians. Thus, with the
enactment of The Government of India Act, 1935, rights were granted on the Federal and
Provincial legislatures to legislate determining the extent of State liability. Section 176(1)
of the Act of 1935 provided:

―The Federation may sue or be sued by the name of the Federation of India and a Provincial
Government 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
Act of the Federal or a Provincial Legislature enacted by virtue of powers conferred on that
Legislature by this Act, sue or be sued in relation to their respective affairs in the like cases as
the Secretary of State in Council might have sued or been sued if this Act had not been
passed‖.

In is needed to be mentioned here that the actual reason for the British Parliament for giving
rights to the ‗Federal and Provincial Governments‘ to frame laws to govern the liability of the

51
State to be sued was the judgement of the Privy Council in ‗Secretary of State for India v.
Moment‘. In this litigation it was held that ‗the Legislature in India had no power .to pass a
law which would deprive a subject of the right to sue which he had prior to 1858.‘ Lord
Chancellor Viscount Haldane observed thus;

‗The effect of section 65 of the Act, 1858 was to debar the Government of India from passing
any Act which could prevent a subject from suing the secretary of State in council, in a
Civil Court, in any case in which he could have similarly sued the East India Company. They
think that the words cannot be construed in any different sense without reading into them a
qualification, which is not there and which may well have been deliberately omitted‘.

As a result section 176 of the Government of India Act, 1935 was enacted, to omit the
limitation on the legislature which was imposed by the Moment‘s case. This liability position
laid down in section 176 continued till India became Republic.

Hence, in British India, liability of State for wrongs under law of torts became a subject of
conflict in Indian Courts. Subsequently, State liabilities started to be decided depending on
the nature of the action and type of power exercised, to be more precise if the wrong was
committed while discharging Sovereign function or Non-Sovereign functions became the
litmus paper to establish the State liable under tort law. ‗Sovereign powers of the State were
never defined and in the absence of any clear cut distinction between sovereign and non-
sovereign powers of the State Courts of law were faced some times with difficulties in
resolving the disputes. The plank for defence by State in cases pertaining to State liability
used to be that the acts of omission or commission complained of were within the realm of
sovereign powers of the State and as such State was not liable.‘76

2.2.4- Tortious Liability of the State under Indian Constitution

The Constitution of Independent India is mostly based on the Government of India Act, 1935.
Consequently the doctrine that ‗King can do no wrong‘ managed to gain a room in the Indian
Constitution. As far as Tortious liability of the State is concerned, Article 294 and Article 300
of the Constitution of India contain both explicit and implicit provisions on it. Chapter III,
Part III of the Constitution titled ‗Property Contracts, Rights, Liabilities Obligations and
Suits‘ contain both the articles. Article 294 (b) of the Constitution of India provides that the
Union Government at the Centre or Government of various States may be held liable under

76
Justice U.C.Srivastava, Tortious Liability Of State Under The Constitution, 1997

52
any contractual obligation or otherwise.‘ The word "otherwise" would include ‗various
liabilities including tortious liability also.‘ This Article thus constitutes and transfers the
liabilities of Government of India and Government of each governing province in the Union
of India and corresponding States. Article 300 of the Constitution of India provides that State
can sue or be sued as juristic personality. It reads as under: "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 the corresponding Provinces or the corresponding Indian States might
have sued or been sued if this Constitution had not been enacted."

Thus, it is quite evident that the position of tortuous liability of the State in Independent India
was quite similar to what was there under the Crown with enactment of the Government of
India Act as discussed earlier. So, as it prevailed in British India, the State was started to be
given immunity from tortuous liability in Sovereign functions and were held liable as a
corporate body if the wrong was committed while performing non- sovereign functions. Now,
as there was no or still absence of clear cut definition of sovereign functions and non-
sovereign functions, the question was left to be decided by the judiciary which had to first
decide the nature and type of function that the alleged servant of the State was discharging
when the wrong was committed. Then if it is found from the facts that it was a non-sovereign
function than only the State could be held liable.

These in turn gave rise to conflicting decisions in the past which will be discussed in the next
chapter. The reason behind it may be with the passage of time the welfare activities of the
State started increasing and with this it became difficult to differentiate the functions of State
as Sovereign or Non-Sovereign. Moreover, for the ends of justice the Indian courts made a
constant effort to overcome this fallacy of ‗Sovereign Immunity‘ by giving decisions where
extreme efforts is evident at their end to exclude the alleged act from the realm of sovereign
function. It was done so that the victim could claim compensation from the State and making
the latter liable for its tortuous action.

‗Moreover, the liability of the State has gone beyond the traditional principles in view of
changing laws and the Constitutional mandates in this country too. Negligence and
carelessness of the employees are words of great importance and the State would be liable to

53
pay compensation to aggrieved persons because of the negligent and careless act done by its
employees during the course of employment. Even if an employee was doing an unauthorised
act but not in a prohibited way, the employer is liable for such acts because such employee
was acting within the scope of his employment and in acting did something negligent or
wrongful. A master would be liable even for acts which he has not authorised if the same can
be connected with the acts so authorised. Article 21 of the Constitution of India forbids State
to deprive a person of his life and liberty except in accordance with a procedure established
by law. To expand the word 'life', it includes every aspect of life which makes life
meaningful, complete and living, and even culture, tradition, heritage and personal liberty
which have a very expanded meaning impose negative deed on the State and in view of
Constitutional provisions including Directives Principles of State Policy it has been
interpreted to be imposing positive obligation upon the State which is to ensure better
enjoyment of life and dignity of individual. The Fundamental Rights which have been
guaranteed and are enforceable by the Supreme Court. Under Article 32 and High Court,
under Article 226 have not only made the defence of sovereign immunity completely
inapplicable but have overthrown it altogether as it cannot go with constitutionally
guaranteed rights. In view of complete ouster of sovereign immunity in regard to fundamental
rights particularly Article 21, right to award money compensation for violation of the law is
justified. The Union and State governments become liable for tortious wrongs done by their
servants during the course of employment for violation of Article 21. The Supreme Court
awarded monetary compensation in a large number of cases. In the case of NibatiBehera v.
State of Orissa, AIR 1993 SC 1960, the Court spelt out the principles on the liability of the
State in case for payment of compensation and the distinction between this liability and the
liability in law for the payment of compensation for the tort so committed. If no other
practicable mode of redress is available the Court would award monetary compensation for
breach of fundamental rights by State or its employees based on the principle of strict
liability.‘77

Thus, practically the distinction of Sovereign function and Non-sovereign function while
holding the tortuous liability of the State makes no sense as there is a constant endeavour to
provide relief to the victims for the ends of justice. Then definitely the question arises
regarding the logic of not abrogating the doctrine of ‗King can do no wrong‘ in the form of
Sovereign immunity even after more than 70 years of Independence.

77
Tortious Liability Of State Under The Constitution‘,Justice U.C.Srivastava,1997.

54
The following flowchart showing the changes in the concept of tortuous liability of the State
in India would further make the inferences gathered from the above discussion clear

• King was not above law

• No Sovereign Immunity
Under ancient
Hindu Rulers

• Rule of Law based on holy Quran

• No Sovereign Immunity
Under ancient
Muslim Rulers

• Secretary of the State for India was liable

• only for sovereign functions and East India Company was liable like a body
Under East India corporate
Company

• Introduction of the doctrine of ‗King can do no wrong‘ with the enactment

of the Government of India Act, 1935 and granting of Sovereign immunity
Under British
Government

• Existence of the application of the doctrine of ‗King can do no wrong‘ and

solely depending on the interpretation given by judges of ‗sovereign‘ and
Under ‗non-sovereign‘ functions.
Independent
India

2.3- Product Liability and Indian Law

2.3.1- Introduction

55
Product liability which is also known as ‗products liability‘ basically deals with ‗the liability
of manufacturers, wholesalers, distributors, and vendors for injury to a person or property
caused by dangerous or defective products‘. The main purpose of product liability is to
provide redressal to consumers by making the ‗manufacturers, distributors, and retailers
responsible for putting into the market products that they knew or should have known were
dangerous or defective.‘

In India the law governing product liability are the followings:

a) ‗The Consumer Protection Act, 1986‘

b) ‗The Sales of Goods Act, 1930‘

c) ‗Specific statutes governing specific goods‘

d) Criminal Liability imposed under ‗Indian Penal Code‘ and ‗Prevention of Food
Adulteration Act 1954‘ and other special Act.

As the scope of the present research is limited only to Product Liability under Indian Law of
Torts, the researcher would analyse below the two major laws governing this field, namely,
‗The Consumer Protection Act, 1986‘ and ‗The Sales of Goods Act, 1930‘.

2.3.2- The Consumer Protection Act, 1986

The Consumer Protection which came into effect from 15th March, 1987, was enacted to
protect the consumer‘s interest in India. The purpose of this Act is to impose liability on the
‗manufacturer‘, in case he supplies ‗defective‘ goods and on ‗service providers‘ in case of
‗deficiency‘ in service following the principle of Strict Liability. While interpreting the terms
‗defect‘ and ‗deficiency‘ the ambit is extended to a wide field to include ‗any kind of fault,
imperfection or shortcoming‘.‗Furthermore, the standard, which is required to be
maintained, in services or goods is not restricted to the statutory mandate but extends to that
claimed by the trader, expressly or impliedly, in any manner whatsoever.‘

The salient features of the Act are:

(I) The Consumer Protection Act is applicable to every individual. Private, public or co-
operative personality stands on equal footings. This Act provides remedies which can be for
compensation or prevention or to punish. The scope of this Act is extended vastly so as to
include all goods which are covered by ‗The sales of goods Act‘.

56
(II) Rights of the consumers which are enshrined in this Act are as follows:

(a) ‗right to be protected against the marketing of goods and services which are

hazardous to life and property;

(b) right to be informed about the quality, quantity, potency, purity, standard and price of
goods or services so as to protect the consumers against unfair trade practices;

(c) right to be assured, wherever possible, access to a variety of goods and services at
competitive prices;

(d) right to be heard and to be assured that consumers' interests will receive due
consideration at the appropriate fora;

(e) right to seek redressal against unfair trade practices or unscrupulous exploitation of
consumers; and

(f) right to consumer education;‘78

(III) ‗Consumer Protection Councils‘ are established under this Act at the central, state and
district levels, with an objective to promote and protect the consumers‘ rights.

(IV) ‗To provide a simple, speedy and inexpensive redressal of consumer grievances, the
Act envisages three-tier quasi-judicial machinery at the national, state and district levels.
These are: National Consumer Disputes Redressal Commission known as National
Commission, State Consumer Disputes Redressal Commissions known as State Commissions
and District Consumer Disputes Redressal Forum known as District Forum; and

(V) The Act is in addition to and not in derogation of the provisions of any other law for

the time being in force.‘

According to section 2 (d) of The Consumer Protection Act, ‗Consumer‘ means any person
who—

78
Product Liability in India, available at: https://www.sethassociates.com/wp-content/uploads/Product-liability- in-
India.sethassociates2.pdf ( last visited on 23.06.18)

57
(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 payment, when such services are availed of with the approval of the first mentioned
person;

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

To make it simple the researcher infers the following chart

'Consumer'

Hirer
Buyerofgoodswithconsi /Availerofservicesforc
deration
onsideration

58
Hence, the liability of the manufactures under product liability is basically covered in the
section 2 (d) (1) of the Consumer Protection Act, as here the consumer includes the buyer of
goods for consideration.

Now, to make one liable under product liability the goods purchased should have some
‗defect‘ which has been defined in 2(1) (f) of the Act as ―any fault, imperfection or
shortcoming in the quality, quantity, potency, purity or standard which is required to
maintained by or under any law for the time being in force or under any contract, express or
implied, or as is claimed by the trader (which includes the manufacturer) in any manner
whatsoever in relation to any goods.‖

Under the Act, a ‗complain‘ means any of the following allegations:

‗i. any unfair trade practice or a restrictive trade practice has been adopted by a trader,

ii. the goods hired or bought suffer from one or more defects

iii. The goods hired or availed of are deficient in any respect

iv. A trader has charged price in excess of price fixed by law or displayed on the goods
or any package containing goods

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

Remedies under CPA:

According to Section 14 of the Consumer Protection Act, the authorities may direct one or
more of the following

(i) ‗to remove the defect;

(ii) to replace the goods with new goods of similar description which shall be free from
any defect;

(iii) to return to the complainant the price;

(iv) to pay such amount as may be awarded as compensation to the consumer for the loss
or injury suffered by the consumer due to the negligence of the opposite party;

59
(v) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat
them;

(vi) to cease and desist manufacture of hazardous goods;

(vii) to pay such sums as orders if injury/loss is suffered by a large number of consumers
not identifiable conveniently;

(viii) to issue corrective advertisement for neutralizing effect of misleading advertisement;

(ix) not to offer the hazardous goods for sale;

(x) to withdraw the hazardous goods from being offered for sale;

(xi) to provide for adequate costs to parties (the Complainant).‘

This means that if an aggrieved party files a suit claiming an unliquidated damage under CPA
which is the essential attribute of tort law, then the authorities have number of alternatives to
substitute the relief claimed. Secondly, according to the foregoing section, compensation can
be awarded for the loss or injury suffered by the victim only if there is negligence on the part
of the defendant. On this it becomes necessary to mention that the Apex Court of India, the
Supreme Court is yet to give a clear judgement determining if the liability is strict or based of
fault under this Act.

Availability to limit the liability by clauses:

Determination of Product liability under CPA is very much influenced by contractual

liability. ‗It was in Bharathi Knitting Company v DHL Worldwide Express Courier (1996)
4 SCC 704 that the Apex Court upheld limitation of liability clauses, that are agreed by the
parties specifically while entering into a contract. However, such clauses may be struck down
if found to be unconscionable in nature. In MarutiUdyog v. Susheel Kumar Gabgotra, [(2006)
4 SCC 644], the manufacturer of the vehicle had stipulated a warranty clause limiting its
liability to merely repair the defects found if any. In view of this clause, the Supreme Court
reversed the findings of the National Commission to replace the defective goods and held
that the liability of the manufacture was confined to repairing the defect. Compensation was,
however, awarded for travel charges to the complainant, which was incurred due to the fault
of the car manufacturer.‘ The legal implication of this is that in a suit for compensation
against the manufacture, if there is a clause in the contract between the parties whereby the

60
liability of the manufacturer is limited only to repair of the goods and a nominal
compensation can be granted for other expenses incurred by the seller.

No Sub-judice bar

Under section 3 of the Consumer Protection Act it is mentioned that this Act is in addition
to and not in derogation of any other law. The Supreme Court in Secretary, Thirumurugan
Co-operative Agricultural Credit Society v. M. Lalitha, [(2004) 1 SCC 305] has interpreted
the above provision to mean that ‗the remedies provided under the CP Act are in addition to
the remedies provided under other statutes.‘ Further in the case of State of Karnataka v.
Vishwabharati House Building Coop. Society, (2003) 2 SCC 412, a three judge bench of the
Supreme Court held that ‗.....the said Act supplements and not supplants the jurisdiction of
the civil courts or other statutory authorities‘. It means that filing of a suit before consumer
forum does not act as sub judice bar on filing on same cause of action in a civil court. This
often leads to duplicity of proceedings and multiplicity of litigation on same cause of action.

Redressal Agencies under CPA

The CPA has established three tier of redressalagencies namely, District Forum in district
level, State Commissions in each State and the National Commission. ‗The District Forum
has the jurisdiction to entertain complaints where the value of the goods or services and the
compensation, if any, claimed, is less than INR 50,000. A State Commission has the
jurisdiction to entertain complaints where the value of the goods or services and the
compensation, if any, claimed exceeds 500,000 rupees but does not exceed 2 million rupees.
It is also appellate forum for orders of the District forum. The National Commission has the
jurisdiction to entertain complaints where the value of goods and services and the
compensation exceeds two million rupees and also hears the appeals against the orders of the
State Commission.‘ The redressal agencies established under the Consumer Protection Act
are quasi judicial in nature which means that the well settled procedural laws are not
applicable by the adjudicating authorities under this Act. These agencies only have to follow
the ‗natural principles of justice‘ and the already settled principles of law which means that
they lack authority to decide any ‗question of law‘.

Secondly, the consumer forums have to follow summary procedure which means that the
redressal agencies under CPA has power to settle matters that are ‗the matters of summarily

61
nature‘ only. Hence, in cases were examination of witnesses and large amount of evidence is
required to be obtained from parties, these forum have no power to try those matters.

Moreover, the quasi –judicial nature of these forums means that they will lack any inherent
power and can only grant those reliefs which are embodied under section 14 of the Consumer
Protection Act.

Lack of power to Review or Recall of Order

Since there is no provision under CPA for review or recall of orders other than section 22 (2)
and 22A, which expressly provides that only National Commission is vested with power of
Review or Recall of its own order, all the other adjudicating authorities lack power to review
or recall orders under this Act. The consumer forums also cannot stay the execution of its
own order.

Lack of status of ‘Court of Record’

The State Commissions and the National Commissions are not vested with the status of ‗court
of record‘ which means that the higher consumer forum lacks the power of creating
precedent. This may lead to situations where lower forums may not follow the ratio decidendi
of a judgement given by higher forums. This may be considered as one of the largest
loopholes of the Act.

Finality of order

According to provision of CPA ‗Every order of a District Forum, State Commission or the
National Commission shall, if no appeal has been preferred against such order under the
provisions of this Act, be final. ‗Thus this provision implies that non- preferment of appeal
renders the order final. Conversely, preferring an appeal means that order is not final. Hence
once an appeal is preferred by the judgment debtor, he gets a stay against the execution and
thus there cannot be any execution. The judgment debtors can certainly misuse this provision
of the Act.‘

Hence, the researcher has drawn the following inferences from the above analysis of the
Consumer Protection Act, which is the major legislation governing Product liability under
tort on India.

62
 Alternative Remedies other
than compensation
prescribed under section 14
of CPA and compensation
in case of negligence only

Availability of liability
limited clause

Quasi-judicial authorities
Product Liability and CPA
and summary Procedures

No Sub-judice bar and No

power to review or stay
orders

No Status of ‗court of
records‘

2.3.3- The Consumer Protection Bill, 2018

The recent Consumer Protection Bill of 2018 has made certain landmark positive changes in
the Consumer Protection Act, 1986 and if it is passed in the Parliament it shall replace the
Consumer Protection Act, 1986. The changes have definitely filled certain gaps which
earlier existed in CPA of 1986 as highlighted above by the researcher. To mention a few, the
Bill of 2018 has specific provisions dealing product liability which earlier was missing and
by this bill the consumer forums have been granted power to review their order. But some of
the loopholes are still in existence and bill itself has certain gaps which are discussed below:

 Consumer Forums are still quasi-judicial authorities: The District, State and National
Consumer Disputes Redressal Commissions will adjudicate complaints on defective
goods and deficient services of varying values. They have been given the powers of a
civil court. The State and National Commissions act as appellate bodies on the
decisions of the District and State Commissions, respectively. Appeals from the

63
 National Commission will be heard by the Supreme Court. Therefore, these
Commissions are quasi-judicial bodies with the National Commission being on par
with High Courts. This in turn means that the gaps like summary process, lack of
inherent power etc are still present.
 Violates the Principle of Judicial Independence: The 1986 Act contains provisions on
selection committees that would appoint members on these Commissions. This
method of selection was also specified in the 2015 Bill. These selection
committees were chaired by a judicial member. The 2018 Bill does not set up such
selection committees and leaves it to the central government to appoint members of
the Commissions. The Bill permits the central government to notify the method of
appointment of members of the Commissions. There is no requirement that the
selection involve the higher judiciary. It may be argued that allowing the executive to
determine the appointment of the members of Commissions could affect the
independent functioning of the Commissions. With regard to Appellate Tribunals,
such as the National Tax Tribunal, the Supreme Court has held that they have similar
powers and functions as that of High Courts and hence matters related to appointment
and tenure must be free from executive involvement. The Bill is not in line with
this direction of the Supreme Court.
 Violates the Principle of Separation of Power: The Bill specifies that the
Commissions will be headed by a ‗President‘ and will comprise other
members. However, the Bill delegates to the central government the power of
deciding the qualifications of the President and members. In particular, the Bill does
not specify that the President or members should have minimum judicial
qualifications. This is in contrast with the existing Consumer Protection Act, 1986,
which states that the District Commission will be headed by a person qualified to be a
district judge. Similarly, the State and National Commissions are headed by a person
qualified to be a High Court or a Supreme Court judge, respectively. The 1986 Act
also specifies the minimum qualification of members. The earlier 2015 Bill too
specified judicial members to head the State and National Commissions, though it
permitted the District Commission to be headed by the district magistrate in addition
to a person qualified to be a district judge.If the Commissions were to have only non-
judicial members, it may violate the principle of separation of powers. One may also
argue that prescribing the qualifications through Rules may be an excessive

64
 delegation of powers. The Supreme Court has held that ‗in the absence of standards,
criteria or principles on the contents of rules, the powers given to the executive may
go beyond the permissible limits of valid delegation‘79.
 Uncertainties in Composition and role of the Consumer Protection Councils: The Bill
establishes Consumer Protection Councils (CPCs) at the district, state and national
levels, as advisory bodies. The Councils will advise on promotion and protection of
consumer rights. Under the Bill, the Central Council and the State Council will be
headed by the Minister-in-charge of Consumer Affairs at the central and state level,
respectively. The District Council will be headed by the District Collector. The Bill
states that these bodies shall ―render advice on promotion and protection of consumer
rights‖. It is unusual for a body headed by a Minister or the District Collector (who
are implementing authorities) to be given an advisory role. Further, the Bill does not
specify whom the CPCs will render the advice to.
 Conflict of Jurisdiction: like the Consumer Protection Act of 1986, there still exists
the gap of conflict of jurisdiction due to absence of specific provision mentioning that
the proposed Bill will apply to any matter covered under a special law, unless the
special law excludes the application of the proposed Bill.

Although, the Bill is a welcome piece of legislation as it has expressly introduced the concept
of product liability for the first time and conferred review powers, but still there are many
gaps that haven‘t been filled. So, it can be said for this legislation, is an half- baked attempt
of the parliament.

2.3.4- The Sales of Goods Act, 1930

The Sales of Goods Act, 1930 among other statutes covering India‘s mercantile law is one of
the oldest. The Act is based on the English Sales of Goods Act, 1893. The statute is based on
law of contract and personal property law. All the main provisions of Indian Contract Act
were kept unrepealed in this Act. According to section 3 of the Sales of Goods Act, all the
provisions of the Indian Contract Act continue to apply for sale of goods such as ‗offer and
acceptance, legally enforceable agreement, mutual consent, parties competent to contract,
free consent, lawful object, consideration etc.‘

79
Consumer Protection Bill, 2018 available at: https://www.prsindia.org/billtrack/consumer-protection-bill- 2018 (Last
visited on 23.08.2018)

65
Some of the important provisions which are related to establish product liability in India is
discussed below:

Goods

Section 2 (7) of the Sales of Goods Act defines ‗Goods‘ as ‗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.‘

Thus by defining goods as ‗every kind of movable property‘, the Act brings within its ambit
any product which may be sold by the manufactures or retailer. This turn definitely makes it a
legislation to establish product liability in India.

Contract of sale

According to section 4(1) of the Act, ‗A contract of sale of goods is a contract whereby the
seller transfers or agrees to transfer the property in goods to the buyer for a price. There may
be a contract of sale between one part-owner and another.‘

Section 4(2) of the Act further adds that ‗A contract of sale may be absolute or

conditional.‘

Thus, following are essentials of contract of sale – (i). It is contract, i.e. all requirements

of ‗contract‘ must be fulfilled (ii). It is of ‗goods‘ (iii) Transfer of property is required

(iv) Contract is between buyer and seller (v) Sale should be for ‗price‘ (vi) A part owner

can sale his part to another part-owner (vii) Contract may be absolute or conditional

(viii) Payment and delivery are concurrent conditions.

Conditions and warranties

According to Section 12 of the Sale of Goods Act, ‗a buyer is conferred with the right to
repudiate the contract and sue for damages in case of breach of a condition, whether relating
to quantity, quality or description. Breach of warranty, on the other hand, entitles the buyer,
to sue for damages but not repudiate the contract.‘

66
Further section 12(4) adds that where a stipulation was not included as a condition, it is must
for it to turn into a warranty.

Although the parties have used no express words that would create a stipulation of a
condition or a warranty, the law annexes to sale of goods contracts many conditions, breach
of which may be treated by the buyer as avoiding the contract or giving a right to damages.
These are called implied conditions and are enforced on the grounds that the law infers from
all circumstances of the case that the parties intended to add such a stipulation to their
contract but did not put it in express words.80

Implied condition as to quality or fitness

According to section 16 of Sale of Goods Act, it is a requirement that ‗the goods shall be
reasonably fit for the purpose made known to the seller by the buyer expressly or by
implication. Section 16(2) requires only that the goods should be of merchantable quality.‘
One more important aspect of section 16(1) is that it does not cover those cases where the
buyer is not dependant on the skill and knowledge of the seller. On the other hand section
16(2) is not limited on this ground but it shall not be applicable when the examination of the
goods is done by the buyer. Hence the principle of Caveat emptor is reflected in this section,
under which it is the buyer who has to satisfy himself regarding the quality and efficiency of
the product purchased.

In Section 16, the first exception to the rule of Caveat emptor is that of question of fact
whether the buyer did rely on the skill or judgement of the seller, and no presumption is
raised against him by reason of the fact that the goods were in else and he had the opportunity
of examining them .Nor is it necessary that he should rely on the sellers skill and judgement
only and nothing else.

Remedies under this Act for Product Liability

Remedies under this can be broadly divided into two grounds, first for breach of conditions
and secondly for breach of warranty. Remedies for breach of condition can be claiming of
damages or returning the goods. Whereas remedies for breach of warranty is only provided
under section 59 of the Sale of Goods Act., namely to set up against the seller the breach of
warranty in diminution or extinction of the price or to sue the seller for damages for breach of

80
The Moorcock (1889) 14PD64,68,per Bowen LJ

67
warranty. According to Section 13 of the Act, a buyer may treat a breach of condition as a
breach of warranty and claim damages instead of rejecting the goods.

Measure of damages is governed by Section 73 of the Contract Act, 1872.In the case of
warranty of quality, the presumption is that the measure of damages is the difference between
what the goods are intrinsically worth at the time of delivery, and what they would have been
worth, if they had been according to contract81, and this must be ascertained by reference to
the market price at that time, whether it has fallen or risen since the date of the contract.
However, the buyer has a duty to act reasonably in mitigating the loss or damage.

Thus, speaking of remedies available to a victim against a manufacture or seller in case of

product liability is either to return the product that too only in case of breach of condition or
to claims damages. Damages which again will be according to contract law that means
liquidated damages which definitely is not as effective in bringing the victim back to his
normal condition which is the main motive of tort law by providing unliquidated damages.

Hence, the researcher has drawn the following inferences from the above analysis of the
Sales of Goods Act

Product Liability and Sales

of Goods Act

Principle of Caveat emptor

Remedies are returning of
limits the
the goods or to claim
seller‘s/manufactures‘
damages(Mostly liquidated)
liabilities.

81
CW Simson v kokaJagannadha Row Naidu,AIR 1914, Mad 633.

68
2.3.5- Special Statutes on product liability

The other relevant Indian Laws on Product Liability are discussed below:

Product Liability Insurance

‗There is no enactment for compulsory insurance to cover supply of defective products in

India. It is voluntary on the part of a seller or vendor to take this form of insurance in best
interests of his business. The prevalent legislation Public liability Insurance Act, 1991 aims at
providing for public liability insurance for the purpose of providing relief to the persons
affected by accident occurring while handling any hazardous substance for matters connected
therewith .Every owner i.e. a person who has control over handling any hazardous substance,
has to take insurance policy so that he is insured against liability to give relief in case of
death or injury to a person , or damage to any property , arising from an accident occurring
while handling any hazardous substance. Further, the Motor Vehicles Act, 1988 makes the
insurance of motor vehicles against third party risks, compulsory.

Criminal Liability for Manufacturing or Distributing a Defective Product in India

The product liability law, in India, apart from the civil liability, also imposes criminal
liability in case of non-compliance with the provisions of each of the below mentioned Acts.
The said Acts are in addition to and not in derogation of any other laws in force, which
implies that an action imposing penal liability can be simultaneously initiated along with a
claim under civil law. Some of these are special Acts pertaining to sale of specific goods such
as food, drugs, cosmetics etc. The provisions of these enactments are preventive in form,
though the relief envisaged is an action for breach in civil or criminal court.

• The Foods Adulteration Act, 1954

• The Food Safety and Standards Act, 2006

• The Drug & Cosmetics Act, 1940

• The Criminal Procedure Code, 1973

• The Standards of Weights and Measures Act, 1956

• The Agricultural Produce (Grading and Marking) Act, 1937 for marking and grading
ofcommodities like vegetables, butter, etc.

69
• The Indian Standards Institution (Certification Marks) Act , 1952 to formulate
a number of standards for different products by ISI

• The Bureau of Indian Standards Act, 1986

Each of the aforesaid Acts provides for imposition of fine and/or imprisonment in case of
supply of defective products or adulterated consumables.

The Food Safety and Standards Act, 2006 is the most recent legislation which
comprehensively deals with food and safety standards which are to be complied with by
manufacturers and producers, non-compliance of which imposes a liability, upon defaulters,
of fine, extending up to Rs. Ten Lakhs and/or imprisonment.‘

The provisions of Indian Penal Code (IPC), on the other hand, in respect of product liability,
are attracted when the element of cheating and fraud can be attributed to such defects.
Provisions of IPC are also attracted to provide punishment to offenders for false weights and
measures , adulteration of goods ( food, drugs etc -6 months imprisonment, fine of 1000
rupees or both), and false property marks ( one year imprisonment, fine or both). The period
of limitation as per Section 468 of the Criminal Procedure Code is 6 months if offence is
punishable with fine only , and one year if offence is punishable with upto one year
imprisonment and three years if offence is punishable with imprisonment of above one year
and up to three years.

The provisions of the Standards of Weights and Measures Act, 1976 are attracted in case of
any false packaging, weight or measure which does not conform to the standards established
by or under the said Act and breaches the mandatory declaratory requirements on a
package. If any mandatory declaration is found missing on the package a fine of up to 2000
rupees shall be levied as per Rule 39 of the Standards of weights and measures packaged
commodity rules.

The Drugs and Cosmetic Act, 1940 also provides for criminal liability for manufacturers and
producers of medicinal products or cosmetics etc, which do not adhere to the prescribed
standards.‘82

To sum up the above legislation only punishes the offender and provides for no damages or
compensation to the victim for product liability in India.

82
Karnika Seth, Product liability in India, , King‘s college , University of London

70
2.4- India and Public Nuisance Legislation

2.4.1-Introduction-

Public Nuisance like other concepts under tort also is derived from the English Common
Law. No exact definition is accepted worldwide for term ‗nuisance‘. The gist of this wrong is
that ‗there must be an unlawful interference with the use or enjoyment of land, or some right
over or in connection with it, causing damage to the plaintiff.‘ Halsbury defines it as ‗an
injury to the right of a person in possession of property to undisturbed enjoyment of it and
results from an improper use by another of his own property‘. According to Blackstone, it is
something that ―worketh hurt, inconvenience or damage‖. An actionable nuisance only
generates when the act causes danger and injury. Public Nuisance is that ‗which seriously
interfere with the health, safety, comfort or convenience of the public generally or which
tend to degrade public morals have always been considered public nuisances and wrongful
acts affecting public. Speaking generally, such acts arise from callous disregard of other
people's welfare and interest.‘

Some of the most frequent instances of Public nuisances are loud noise of the loudspeakers,
damaged roads, unnecessary hocking of the vehicle‘s horns, throwing garbage‘s on public
way, blocking public way by illegal construction or piling up of construction materials on
roads. There are innumerable instances of public nuisances that an individual faces in Indian
society. Few years back also nuisance claims were largely filed by individuals for
compensation of their personal injuries. But Public nuisance actions by way of Class
litigation and public interest litigations are gradually gaining quantum. The biggest type of
public nuisance in India is environmental pollution which is mostly ignored by citizens and
instead of claiming compensation through class litigation; the victims mostly depend on
meagre compensation obtained through public interest litigations.

The Researcher has discussed the present Indian Laws under which one can seek remedies
against public nuisance as follows:

2.4.2- The Criminal Procedure Code, 1973 (Cr.P.C), Indian Penal Code (I.P.C) and
PublicNuisance

According to section 133 of the Criminal Procedure Code, 1973, there can be urgent removal
of public nuisances. Section 133 of Cr.P.C states that ‗whenever a District Magistrate or a
Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this

71
behalf by the State Government, on receiving the report of a police officer or other
information and on taking such evidence (if any) as he thinks fit, considers—

(a) that any unlawful obstruction or nuisance should be removed from any public place or
from any way, river or channel which is or may be lawfully used by the public; or

(b) that the conduct of any trade or occupation, or the keeping of any goods or
merchandise, is injurious to the health or physical comfort of the community, and that in
consequence such trade or occupation should be prohibited or regulated or such goods or
merchandise should be removed or the keeping thereof regulated; or

(c) that the construction of any building, or, the disposal of any substance, as is likely to
occasion conflagration or explosion, should be prevented or stopped; or

(d) that any building, tent or structure, or any tree is in such a condition that it is likely to
fall and thereby cause injury to persons living or carrying on business in the neighborhood or
passing by, and that in consequence the removal, repair or support of such building, tent or
structure, or the removal or support of such tree, is necessary; or

(e) that any tank, well or excavation adjacent to any such way or public place should be
fenced in such manner as to prevent danger arising to the public; or

f) that any dangerous animal should be destroyed, confined or otherwise disposed of,such
Magistrate may make a conditional order requiring the person causing such obstruction or
nuisance, or carrying on such trade or occupation or keeping any such goods or merchandise,
or owning, possessing or controlling such building, tent, structure, substance, tank, well or
excavation, or owning or possessing such animal or tree, within a time to be fixed in the
order—

(i) to remove such obstruction or nuisance; or

(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed,
such trade or occupation, or to remove such goods or merchandise, or to regulate the
keeping thereof in such manner as may be directed; or

(iii) to prevent or stop the construction of such building, or to alter the disposal of such
substance; or

72
(iv) to remove, repair or support such building, tent or structure, or to removeor support
such trees; or

(v) to fence such tank, well or excavation; or

(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the
said order; or, if he objects so to do, to appear before himself or some other Executive
Magistrate subordinate to him at a time and place to be fixed by the order, and show cause
why the order should not be made absolute.

No order duly made by a Magistrate under this section shall be called in question in any

civil court.‘

This section is thus used only to stop the ongoing public nuisance and in some cases also to
restore the original condition of the damaged public property. Hence, it no where provides
compensation to the victims.

The Punjab & Haryana High Court on the nature and consequences of orders made under
Section 133. The Court observed—

―The proceedings are just to maintain peace and tranquility and the orders rendered under
these sections are merely temporary orders. The orders of the courts are coterminous with the
judgment or decree of the civil court. No sooner the civil court declares the right of the
parties the temporary orders rendered by the courts under Sections 133, 145 and 147 of the
Code come to an end.‖

Section 133(1) (a) can be invoked only if the nuisance is public nuisance in nature i.e. it
affects the interest of public at large. ‗The phrase ―public nuisance‖ has been defined in
Section 268 of the Indian Penal Code and this definition is used for the purposes of Section
133. According to that definition, in order to constitute a public nuisance, ‗the injury, danger
or annoyance must be caused to the public, or to the people in the vicinity or to persons who
may have occasion to exercise any public right.‘ The object and public purpose behind
Section 133 is to prevent public nuisance that if the magistrate fails to take immediate
recourse to Section 133, irreparable damage would be done to the public. However, under
Section 133 ‗no action seems possible if the nuisance has been in existence for a long
period‘. In that case the only remedy open to the aggrieved party is to move the civil court.

73
According to Section 12 of the Indian Penal Code, the word ―public‖ includes ‗any class of
the public or community; but that class must be numerically sufficient to be designated ―the
public‖. Therefore, if a particular individual or his family is only affected by the nuisance,
such nuisance cannot be considered to be a public nuisance and hence its removal from any
public place cannot be ordered under Section 133. It has been held that a place in order to be
public must be open to the public, i. e., a place to which the public have access by right,
permission, usage or otherwise.

Clause (b) of Section 133(1) is applicable only in such cases where the conduct of any trade
or occupation, etc., is injurious to the health or physical comfort of the community.‘

Service or notification of order

‗The order shall be served on the person against whom it is made in the manner provided for
service of a summons. If it cannot be so served, it shall be notified by proclamation duly
published, and a copy thereof shall be stuck at such place as may be fittest for conveying the
information to such person. [S. 134]

Person to obey the order or to show cause —The person against whom such an order is made
shall—

(a) perform, within the time and in the manner specified in the order, the act directed
thereby; or

(b) appear and show cause against the order. [S. 135]

Consequence of his failing to do so—If such person does not perform such act or appear to
show cause, he shall be punishable under Section 188, Cr.P.C and the order shall be made
absolute. [S. 136]

Procedure Where Existence of Public Right is Denied

Where an order is made under Section 133 for the purpose of preventing obstruction,
nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate
shall, on appearance of the person against whom the order was made, question him as to
whether he denies the existence of any public right in respect of the way, river, etc., and if he
does so, the Magistrate shall inquire into the matter. If in such inquiry the Magistrate finds
reliable evidence in support of such denial, he shall stay the proceedings until the matter of

74
the existence of such right has been decided by competent court; and if he finds no such
evidence, he shall proceed in accordance with Section 138. A person who has failed to deny
the existence of such a public right or who even after such denial has failed to adduce reliable
evidence in its support, shall not be allowed to make any such denial in the subsequent
proceedings. [S. 137]

The inquiry as contemplated by Section 137 above is confined only to the denial of the public
right and it has nothing to do with the inquiry made for determining whether or not the
conditional order made under Section 133(1) is reasonable or proper. This latter inquiry can
be made after the inquiry contemplated by Section 137 has resulted in a finding against the
person to whom the conditional order was issued.

The object of Section 137 is that if the denial of the public pathway, etc. involves a bona fide
claim on the part of the person denying the public right, the matter should be decided by a
competent civil court and not by a Magistrate in a summary inquiry provided under Section
137.

Procedure Where He Appears to Show Cause

If the person against whom an order under Section 133 is made appears and shows cause
against the order, the Magistrate shall take evidence in the matter as in a summons case. If the
Magistrate is satisfied that the order is reasonable and proper the order shall be made
absolute; if he is not so satisfied, no further proceedings shall be taken in the case. [S. 138]

It is imperative for the Magistrate to take evidence in the matter and therefore he cannot just
dispose of the matter without taking any evidence. His inspection of the site will not be of
any use. It is not permissible to adduce evidence by way of affidavits and the Magistrate is
bound to record evidence in the same manner as is recorded in a summons case.83

Local Investigation and Expert Evidence

The Magistrate may for the purposes of an inquiry under Section 137 or Section 138 (i. e., as
mentioned in para 2 and 3 above) — (a) direct a local investigation to be made; or

(b) summon and examine an expert. [S. 139]

83
R V Kelkar, Lectures on Criminal Procedure Code

75
Where the Magistrate directs a local investigation by any person under Section 139, the
Magistrate may—

(a) furnish such person with such written instructions as may seem necessary for his
guidance;

(b) declare by whom the expenses of the local investigation shall be paid. The report of
such person may be read as evidence in the case. [S. 140(1)and (2)]

Where the Magistrate summons and examines an expert, he may direct by whom the costs of
such summoning and examination shall be paid. [S. 140(3)]

Procedure on Order Being Made Absolute and Consequences of Disobedience When an

order has been made absolute under Section 136 or Section 138, the Magistrate shall give
notice of the same to the person against whom the order was made, and shall require him to
perform the act directed by the order within the time fixed in the notice, and inform him that,
in case of disobedience, he shall be liable to punishment under Section 188, IPC. [S. 141(1)]

If such act is not performed within the time fixed, the Magistrate may cause it to be
performed, and may recover the costs of performing it, either by the sale of any building,
goods or any other property removed by his order, or by the distress and sale of any other
movable property of such person. [S. 141(2)]

No suit shall lie in respect of anything done in good faith under the above provisions. [S.
141(3)]

It has been held that the order passed by a court cannot be reviewed by itself. Nor could the
order be amended without giving notice to the parties.

Injunction Pending Inquiry

If a Magistrate making an order under Section 133 considers that immediate measures are
necessary to prevent imminent danger or injury of a serious kind to the public, he may issue
such an injunction to the person against whom the order was made, as is required to obviate
or prevent such danger or injury pending the determination of the matter. In default of such
person forthwith obeying such injunction, the Magistrate may himself use such means as are
necessary to obviate such danger or to prevent such injury. [S. 142(1) & (2)]

76
Though there is no specific provision to give notice to the person concerned before an
injunction is issued, justice and fairness demand that an order of injunction should ordinarily
be issued only after affording an opportunity to the affected person of being heard.

No suit shall lie in respect of anything done in good faith by a Magistrate under the above
provision. [S. 142(3)]

Magistrate may Prohibit Repetition or Continuance of Public Nuisance

A District Magistrate or Sub-Divisional Magistrate, or any other Executive Magistrate duly

empowered in this behalf, may order any person not to repeat or continue a public nuisance
as defined in the Indian Penal Code or any special or local law [S 143]84

Such an order can be passed only if the matter has been adjudicated by a competent court.
Disobedience of the order is punishable under Section 291 of the IPC.‘

Provisions under Indian Penal Code dealing with Public Nuisances Chapter IV of Indian
Penal Code deals with offences relating to public health, safety, decency, convenience,
morals under Sections 268, 269, 270, 279, 280, 287, 288, 290 291294.

Public Nuisance has been defined in section 268 as, a person is guilty of a public nuisance
who does any act or is guilty of illegal omission which causes any common injury, danger or
annoyance to the public or to the people in general who dwell or occupy property in the
vicinity, or which must necessarily cause injury, obstruction, danger, or annoyance to persons
who may have occasion to use any public right. The section further explains that a common
nuisance is not excused on the ground that it causes some convenience or advantage. The
public nuisance covers all types of pollutions i.e. pollution of land, water, air, noise pollution
etc.

Section 290 of the Indian Penal Code (I.P.C.) provides punishment for public nuisance
(which includes pollution cases also) in cases not otherwise provided for. These offences are
punishable with fine which may extend to 200 rupees.

Section 277 provides that ―whoever voluntarily corrupt or fouls the water of any public
spring or reservoir so as to render it less fit for the purpose for which it is ordinarily used,
shall be punished with simple or rigorous imprisonment for a term extending to three months
or fine of five hundred rupees or with both.
84
R V Kelkar, Lectures on Criminal Procedure Code

77
Section 269 of I.P.C. also could be invoked against a water polluter. The section provides,
―whoever unlawfully or negligently does any act which is, and which he knows or has
reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be
punished with imprisonment of either description for a term which may extend to six months,
or with fine, or with both.‖

Section 278 of the Act, provides that whoever voluntarily vitiates the atmosphere in anyplace
so as to make it noxious to health of the person in general dwelling or carrying on business in
the neighbourhood or passing along a public way, shall be punished with fine which may
extend to five hundred rupees.

The water polluter can also be punished under section 425 of I.P.C. for mischief. If his act
causes wrongful loss or damage to public or to any person or if his act causes the water
pollution could be brought under section 511 of the Act. Section 440 of the Act deals with
mischief caused by killing maiming animals and cattle.

Section 286 of the I.P.C. provides punishment for negligent conduct with respect to
explosive substance. Similarly Sections 284 and 285 provide punishments for negligent
conduct with respect to poisonous substance and negligent conduct with respect to fire or
combustible matter respectively.

To sum up the gist of inferences that the Researcher can gather from the above discussion of
the provisions on Public Nuisance under the Criminal Procedure Code, 1973 and Indian Penal
Code is as follows:

1. First, any order made under section 133 of the Criminal Procedure Code, 1973 is to
meet with emergency situation and provides remedies such as removable of nuisance or
prohibition of nuisance by stopping it. Hence, it nowhere provides damages (compensation)
for the nuisance caused to the victim.

2. Secondly, the order passed under this section is temporary and are subject to further
orders of civil courts. The remedies available are only in the form of penalties. No civil
remedy like compensation is provided.

3. Thirdly, under this section there is no room for any nuisance which might be in
existence since long. So it becomes insufficient to deal with environment pollution related
cases, where the damage may be slow and its effect will come to the fore after a long time.

78
4. Fourthly, public nuisance mostly is connected with environmental issues. Thus, those
acts become subject to specific legislation of environmental protection, making its application
limited.

2.4.3- Code of Civil Procedure (C.P.C) and Public Nuisance

Public nuisance derives support from section 91 of CPC that ‗lays down the procedure for
initiation of a civil suit for the offense of public nuisance. The marginal note of section 91
reads: public nuisance and other wrongful acts affecting the public. Inclusion of ‗other
wrongful acts affecting public' besides public nuisance widens the scope of the section to
incorporate various situations which although do not fall under the accepted straitjacket
definitions of nuisance, yet are a cause of discomfort and inconvenience to the public. For
instance, courts have read slaughtering of cattle on a public street or encroachment upon a
public street by construction of buildings as legitimate cause of action for a claim for public
nuisance by the virtue of it being a wrongful act against public.‘

As per the General Clauses Act 1897, the definition of nuisance for the purpose of
section 91, CPC has to be borrowed from section 268 IPC. The definition of nuisance
excludes from its ambit the instances of legalized nuisance. Legalized nuisance are cases
when the nuisance cause is statutorily approved and in the interest of greater good and social
welfare. For instance, the running of railway engines and trains or establishment of the yard,
despite being a legitimate cause of nuisance, is not punishable under IPC or a valid ground
for invoking Section 91.

For instance, a suit against a religious procession is maintainable under Section 91 only if the
infringement of some right and even if the consequent damage caused is not proved.
Similarly, member of the public can maintain a suit for removal of obstruction of a public
highway, if his right of passage through it is obstructed, without proof of special damage.‘

Applicability of Section 91 CPC Section 91 of CPC states that

(1) in the case of a public nuisance or other wrongful act affecting, or likely to affect, the
public, a suit for a declaration and injunction or for such other relief as may be appropriate in
the circumstances of the case, may be instituted,—

(a) by the Advocate General, or

79
(b) with the leave of the Court, by two or more persons, even though no special damage
has been caused to such persons by reason of such public nuisance or other wrongful act

(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit
which may exist independently of its provisions.

Though much hasn't been said about the inclusion of clause 1 in section 91, it is believed that
inclusion of the Advocate General as the initiator of the suit for public nuisance was to act as
a safety check arrangement to the expansive and broad definition of nuisance and the
subjectivity of ‗wrongful acts against the public'. Later the 1976 amendment changed the
position as under:

The present position is that for instituting a suit for public nuisance now the permission of the
Advocate general or the Court is to be taken. Such active involvement of the Advocate
General and consent of court in public nuisance suits was to ensure that suits are not initiated
with malicious intentions, with the sole purpose of creating impediments for the party alleged
with causing nuisance.

This rule however does not extend to representative cases when a member of the community
whose rights are being restricted by the act of public nuisance files the claim. In such suits,
the leave of the court is not necessary. Even in cases when certain rights are provided to the
entire community, but immediate damage by the nuisance occurs to an individual, leave of
court is not mandatory.

Clause 2 of Section 91 permits the existence of another suit for the same cause of action in
through a PIL or as a civil suit for private claims. It also allows an individual aggravated by
the nuisance to file for damages his individual suit.

This is primarily so because section 91 in its entirety does not create any rights or deprive
anyone of their existing rights. It merely states the procedural guidelines for instituting a civil
suit when the cause of action is public nuisance. Consequently, it does not control
representative suits under Order I, Rule 8 or modify the right of a person to sue apart from the
provision of this section.

Hence, the researcher can get the following inferences from the above discussion:

80
1. Section 91 of CPC only deals with procedural provisions and puts no bar on
alternative remedies available under criminal law or civil law. This is violative of the
principle of Res Judicata.

2. The definition which is accepted to interpret the nature of act as nuisance excludes
legal nuisances like accident or damages caused by railways or road construction etc. Hence,
for greater good or welfare, the interest of few gets ignored under this section.

3. Any claim for public nuisance made under this section by a class representation
would only pave way to file civil claims, which in turn would provide for damages which are
ex-gratia in nature.

2.4.4- Public Interest Litigation (P.I.L) and Public Nuisance

The rapid development of the society and the fast speed with which is the human life is
progressing has definitely increased the acts which may interfere with the rights of others.
This in turn has largely increased the cases of public nuisances. In India, most of the acts
which causes disturbances to the public in general also degrade the environment to a greater
extend. Thus, Public Interest Litigations recently, have assumed the importance of being the
primary tool for bringing to the notice of judiciary, causes of action against public nuisance
damaging the environment.

‗Public Interest Litigation‘ also known as ‗social interest litigation‘ is basically the suit filed
by a person whose rights might not have been damaged directly but he may claim
representing the poor and weak class of the country. The main purposes of Public interest
litigation can be said to provide remedies in case of injuries caused to public at large, in non-
performance of public duties and lastly to claim enforcement of public duties. In Indian legal
arena, ‗Public Interest Litigation‘ is largely filed under Article 32 or Article 226 of the Indian
Constitution as remedy for infringement of fundamental rights.

Since, right to live in pollution free or healthy environment also is considered to be a

fundamental right so in most of environmental pollution cases ‗Public Interest Litigation‘
is filed to seek remedies. However, it can also be filed as a civil suit under class action as
provided under order 1, rule 8 of CPC or under section 91 of the CPC as discussed earlier as
Public Nuisance Suit.

81
The key requirement of ‗Public Interest Litigation‘ is that there should be infringement of
fundamental rights. The key facets of public interest litigation include:

 a relaxation of standing requirements so that plaintiffs need not satisfy typical burdens
of proving injury, causation or redress ability;
 a willingness of the Indian courts to order the executive branch to undertake
discretionary functions that normally fall outside the scope of judicial review;
 an allowance of representation by proxy, where a person with ―sufficient interest‖ can
seek judicial review on behalf of poor and vulnerable segments of the general
population.

Hence, it can be inferred that class action under the concept of tortious liability is allowed
by P.I.L in India largely in cases which involve environmental degradation instead of Public
Nuisance Litigation as used in America. The compensation awarded under Public Nuisance
Litigation is not ex-gratia in nature i.e. it is not only limited to repair the damages caused to
the victims at large. Thus, ignoring individuals‘ interest in a class action as done in Public
Interest Litigation. The gravity of individual damage is mostly ignored under Public Interest
Litigation.

After studying and analysing the various legislations dealing with State Liability, Product
Liability and Public Nuisance, the researcher shall study and analyse the judicial view point
in this regard in the next chapter. The researcher has tried to find out and study the important
and landmark judgements in the next chapter, wherein the judiciary has dealt with the State
Liability, Product Liability and Public Nuisance.

82
 CHAPTER 3

PRECEDENTS AND JUDICIAL PRONOUNCEMENTS ON INDIAN

TORT LAW

3.1-Introduction

Judiciary had been always protecting the basic rights of human. There are various precedents
worldwide where the interest of the general people was given priority. Hence, this study
would not have been complete without the analysis of the various case laws in order to
determine the actual status of the various laws and regulations on State liability, Product
liability and Public Nuisance in India.

3.2- Judicial Pronouncements and State Liability

3.2.1- State Liability in Pre-independent India

The question of liability of the State in cases of torts committed by its servants first came to
the attention of the judiciary in the pre-independence era with the famous case of P

&O Steam Navigation Co. Vs. Secretary of State85. The fact of the case in brief is that the
servant of the plaintiff‘s company was passing by a dockyard which belonged to the East
Indian Company by a carriage driven by two horses. At that moment some workers of the
dockyard were crossing the road carrying a heavy iron rod. Due to the negligence of the
workers the iron rod fell and a loud sound occurred which frightened the horses and they
bolted and were injured thereby. The plaintiff company filed a suit claiming compensation
from the Government due to the negligence of its servants. In this suit the important question
aroused if the State can be held vicariously liable for the tort committed by its servants. Here
Sir Barnes Peacock C. J. (of the Supreme Court) observed that ―the doctrine that the King
can do no wrong, had not application to the East India Company. The company would have
been liable in such cases and the Secretary of State was thereafter also liable (He was
interpreting section 65, Government of India Act, 1858, which equated the liability of the
Secretary of State for India with that of the East India Company).‖ On this holding, it was not
necessary for Peacock C.J. to discuss the distinction between sovereign and non-sovereign

85
(1861) 5 Bom. H.C.R. App. I,p.1.

83
functions. But he made a distinction between the two and observed, that if a tort were
committed by a public servant in the discharge of sovereign functions, no action would lie
against the Government – e.g. if the tort was committed while carrying on hostilities or
seizing enemy property as prize. Thus, this case gave a new dimension to State liability in
India by stating that only for non-sovereign acts the State can be held liable and immunity
was granted for sovereign acts.

The doctrine of immunity for acts done in the exercise of ―sovereign functions‖, enunciated
in the P & O case, was applied by the Calcutta High Court in NobinChanderDey Vs.
Secretary of State,86 In that case, the plaintiff contended that the Government had made a
contract with him for the issue of a licence for the sale of ganja and had committed
breach of the contract. The High Court held as under:

(i) On the evidence, no breach of contract had been proved.

(ii) Even if there was a contract, the act was done in exercise of sovereign power and,
therefore it was not actionable. The High Court expressly followed the P & O ruling.

In Secretary of State Vs. HariBhanji87 , the Madras High Court held that State immunity was
confined to acts of State. In this case C.J.Turner further clearly explained the concept of
Sovereign Act and Non-Sovereign Act. He explained that ―The act of State, of which the
municipal courts of British India are debarred from taking cognisance, are acts done in the
exercise of sovereign power, 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 exercise of powers conferred by that law, the fact that it is done by the sovereign powers
and is not an act which could possibly be done by a private individual does not oust the
jurisdiction of the civil court‖.

The Allahabad High Court took a similar view in KishanchandVs. Secretary of State88. The
Madras High Court re-iterated this view in Ross Vs. Secretary of State89. However, in
Secretary of State Vs. Cockraft,90 making or repairing a military road was held to be a
sovereign function and the Government was held to be not liable, for the negligence of its
86
(1873) ILR 1 Cal.1.
87
(1882) ILR 5 Mad. 273
88
(1881), ILR 2 All 829.
89
AIR 1915 Mad. 434
90
AIR 1915 Mad 993; ILR 39 Mad. 35

84
servants in the stacking of gravel on a road resulting in a carriage accident injuring the
plaintiff.

Analysis of the above cases:

From the above cases the highlighting points that can be inferred are as follows:

 The trend of judiciary under British in most of the cases of pre-independent India was
to grant immunity to the state act.
 The fates of the cases were solely decided by differentiating between Sovereign and
non- sovereign functions of the State.
 Under the British Rule the doctrine of ‗King can do no wrong‘ was absolutely
applicable in deciding cases where liability of the State had to decide for tortuous
wrongs committed by the employees or servants of the State.

3.2.2-State Liability in Independent India

Decisions based on determination of Sovereign and Non-Sovereign Functions

When the Constitution of India commenced, the liability of the State in independent India
started to be interpreted in various different point of views. Initially in few cases it was
decided that the State would be liable just like any private employer for the wrongs
committed by its employees during the course of employment provided the act was
committed during discharge of private function and not sovereign function. The second
controversies aroused while distinguishing the functions of the State into sovereign and non-
sovereign functions. The third interpretation was that only immunity should be given to act
of State. A study of some of the important decisions on divergent aspects, pronounced by the
Supreme Court of India as well as different High Courts would reveal the uncertain and
unsatisfactory legal position.

The first landmark case on State Liability after the Constitution was of State of Rajasthan Vs.
Vidyawati. 91 The fact of the case in brief is that a person was killed by the rash and negligent
driving of the driver of car which was used by the Collector of Udaipur. The legal
representatives of the deceased sued the State of Rajasthan and the driver for compensation
for the tort of negligent committed by the driver. It was found by the court, as a fact, that the
driver was rash and negligent in driving the jeep and that the accident was the result of such

91
120AIR 1962 SC 933

85
driving. The trial court allowed the claim against the State and the appeal against the verdict
of the trial court was rejected by the Rajasthan High Court. Finally, the appeal was also
dismissed by the Supreme Court. The Apex Court expressed that the maxim ‗King can do no
wrong‖ is not proper to be used in India and also stressed to the point that even in the United
Kingdom this maxim was abrogated by the passing of the Crown‘s Proceedings Act. Hence,
the State like any other private individual should be vicariously liable for the tort committed
by its servants in the course of employment.

But, the uncertainty was evident when the Supreme Court itself gave a divergent view
inKasturiLal vs. State of UP.92 In that case, the plaintiff had been arrested by the police
officers on a suspicion of possessing stolen property. On a search of his person, a large
quantity of gold was found and was seized under the provisions of the Code of Criminal
Procedure. Ultimately, he was released, but the gold was not returned, as the Head Constable
in charge of the malkhana (wherein the said gold was stored) had absconded with the gold.
The plaintiff thereupon brought a suit against the State of UP for the return of the gold (or in
the alternative) for damages for the loss caused to him. It was found by the courts below,
that the concerned police officers had failed to take the requisite care of the gold seized
from the plaintiff, as provided by the UP Police Regulations. The trial court decreed the suit,
but the decree was reversed on appeal by the High Court. When the matter was taken to the
Supreme Court, the court found, on an appreciation of the relevant evidence, that the police
officers were negligent in dealing with the plaintiff‘s property and also, that they had also not
complied with the provisions of the UP Police Regulations in that behalf. In spite of the said
holding, the Supreme Court rejected the plaintiff‘s claim, on the ground that ―the act of
negligence was committed by the police officers while dealing with the property of Ralia
Ram, which they had seized in exercise of their statutory powers. 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 be properly
categorized as sovereign powers; and so, there is no difficulty in holding that the act which
gave rise to the present claim for damages had been committed by the employee of the
respondent during the course of its employment; but the employment in question being of
the category which can claim the specialcharacteristic of sovereign power, the claim
cannot be sustained.‖However, the Supreme Court made an important observation in the case

92
AIR 1965 SC 1039

86
by expressing that it was high time for the Indian Legislatures to pass legislation which could
clearly establish the liability of the State in tortuous claims.

With this case started a new trend of distinguishing sovereign and non-sovereign functions,
where it became pertinent to establish that the act for which the tortuous liability aroused
was a non-sovereign function of State for a successful claim of compensation. The following
few cases which are not exhaustive shall show the prevailing situation at that time.

Similarly, in Satyawati Devi v. Union of India 93, The Delhi High Court held that the carrying
of a hockey team in a military truck to the Air Force Station to play a match is not a
sovereign function. In this case an Air Force vehicle was carrying hockey team of Indian Air
Force Station to play a match. After the match was over, the driver was going to park the
vehicle when he caused the fatal accident by his negligence. It was argued that it was one of
the functions of the Union of lndia to keep the army in proper shape and tune and that hockey
team was carried by the vehicle for the physical exercise of the Air Force personnel and
therefore the Government was not liable. The Court rejected this argument and held that the
carrying of hockey team to play a match could by no process of extension be termed as
exercise of sovereign power and the Union of India was therefore liable for damages caused
to the plaintiff.

In Union of India v. Sugrabai94, the Bombay High Court made the Government liable for the
negligence of the driver of a military motor truck as the tort was committed during discharge
of non-sovereign functions. The Bombay High Court observed in following words:

―Sovereign powers are vested in the State in order that it may discharge its sovereign
functions. For the discharge of that function one of the sovereign powers vested in the State is
to maintain an army. Training of army personnel can be regarded as a part of the exercise of
that sovereign power. The State would clearly not be liable for a tort committed by an army
officer in the exercise of that sovereign power. But it cannot be said that every act which is
necessary for the discharge of a sovereign function and which is undertaken by the State
involves an exercise of sovereign power. Many of these acts do not require to be carried out
by the State through its servants. In deciding whether a particular act was done by a
Government servant in discharge of a sovereign power delegated to him, the proper test is

93
A.I.R 1967 Delhi 98
94
A.I.R 1969 Bom 13

87
whether it was necessary for the State for the proper discharge of its sovereign function to
have the act done through its own employee rather than through a private agency.‖

In State of M.P. v. ChironjiLal95 a new question came before the court relating to the
payment of damages for the loss caused by the lathi-charge of the police in a situation where
it was unauthorized and unwarranted by law. It was alleged that the police resorted to lathi-
charge wilfully and without any reasonable cause and thus damaged the plaintiff‘s property to
maintain law and order which is a sovereign function.

Analysis of the above cases:

The researcher from the above cases can make the following propositions that:

 With the case of State of Rajasthan Vs. Vidyawati, the judiciary quite evidently
expressed its perspective that the English doctrine ‗King can do no wrong‘ should not
have any room in Independent India which was a welfare state.
 With KasturiLal case the uncertainty cropped in once again and the judiciary clearly
opined that to remove this uncertainty proper legislation is needed to be adopted in
India.
 After KasturiLal case, there was a rise in the trend of deciding tortious liability of the
State with the litmus paper test of Sovereign and Non-sovereign function of State.
 From the above cases it can be inferred that the State were held liable in those cases
only where the tort was committed while discharging Non-Sovereign functions.

Constitutional Tort as a Public Law Remedy

Post independence gradually there came the era which saw increase in number of unlawful
detention and custodial death. Such instance were right to life was directly or indirectly
infringed compensation started to be claimed and given by way of Writs under Article32 of
the Constitution by the Supreme Court and under Article 226 by the High Court. Indian
Judiciary again and again through various judgements awarded compensation when remedy
for torts committed by State servants were claimed under public law i.e. through writs dues
for torts which also infringed the fundamental rights of the victims. Below the researcher
makes an attempt to study some of the relevant and important case laws on this aspect.

95
A.I.R 1981 M.P. 65

88
InRudal Shah v. State of Bihar96, the Supreme Court awarded an important judgement against
the Bihar Government for the wrongful and illegal detention of Rudal Shah in Muzaffarpur
jail for as many as 14 yrs after he was acquitted by the Sessions Court in June 1968. The
Court ordered compensation of Rs 30,000 for the injustice and injury done to Rudal Shah
and his helpless family.

In Bhim Singh v. State of Jammu And Kashmir 97, In this case the Court awarded exemplary
cost of Rs 50,000 on account of the authoritarian manner in which the police played with the
liberty of the appellant.

In the judgment of the High Court of Andhra Pradesh in ChallaRamkonda Reddy Vs. State of
AP,98 it was held that the plea of sovereign immunity was not available, where there was a
violation of the fundamental rights of the citizens. It was a case where a person arrested by
the police was lodged in a cell in the jail. He expressed his apprehension to the authority in
charge of the jail, that his enemies were likely to attack and kill him in the jail. This
apprehension was not given any consideration by the authorities. During the particular night,
there were only two persons guarding the jail, instead of the usual six. The enemies of the
arrested person entered the jail during the night and shot him dead. The legal representatives
of the deceased filed a suit for damages. The trial court found that the authorities were
negligent in guarding the jail and that the death of the deceased was attributable to such
negligence. However, the suit was dismissed on the ground that the arrest and detention of
the deceased in jail was in exercise of sovereign functions of the State. During the hearing of
the plaintiff‘s appeal, the State relied upon the decision of the Supreme Court in KasturiLal.
The High Court, however, held, applying the principle of a decision of the Privy Council in
Maharaj Vs. AG for Trinidad and Tobago, (1978) 2 All ER 670, that where the fundamental
rights of the citizens are violated, the plea of sovereign immunity, which is (assumed to be)
continued by article 300 of the Constitution, cannot be put forward.

Saheli v. Commissioner of Police 99 was another milestone in the evaluation of compensation

jurisprudence in writ courts. The masterpiece judgement inVidyawati, which was frozen by
KasturiLal was rightly quoted in this case. The State was held liable for the death of nine year

96
(1983) 4 SCC 141
97
1985 (2) SCC 1117
98
AIR 1989 AP 235
99
AIR 1990, SC 513

89
old child by Police assault and beating. Delhi Administration was ordered to pay
compensation of Rs. 75000/-.

When a question arose as to the legality of such awards, it was clarified by the Supreme
Court in NilabatiBehera Vs. State of Orissa 100, that it is always open to the Supreme Court
(under article 32 of the Constitution) and to the High Court (under article 226 of the
Constitution), to award compensation in the exercise of its constitutional power. It was
clarified that such an award did not finally specify, or put an end to, the claim for damages
and that such an award is only a provisional award, which shall be taken into account by the
civil court, while awarding the damages according to law. In this case, however, the
distinction between sovereign and non-sovereign functions and liability of the State for the
tortious acts of its servants was not gone into details.

This distinction between sovereign and non-sovereign functions was considered at some
length in N. NagendraRaoVs. State of AP, 101 earlier Indian decisions on the subject were
referred to. The court enunciated the following legal principles, in its judgment:

―In the modern sense, the distinction between sovereign or non-sovereign power thus does
not exist. It all depends on the nature of the power and manner of its exercise. Legislative
supremacy under the Constitution arises out of constitutional provisions. The legislature is
free to legislate on topics and subjects carved out for it. Similarly, the executive is free
to implement and administer the law. A law made by a legislature may be bad or may be ultra
vires, but, since it is an exercise of legislative power, a person affected by it may challenge its
validity but he cannot approach a court of law for negligence in making the law. Nor can the
Government, in exercise of its executive action, be sued for its decision on political or policy
matters. It is in (the) public interest that for acts performed by the State, either in its
legislative or executive capacity, it should not be answerable in torts. That would be
illogical and impracticable. It would be in conflict with even modern notions of
sovereignty‖. 102

The court in the above case suggested the following tests –

―One of the tests to determine if the legislative or executive function is sovereign in nature is,
whether the State is answerable for such actions in courts of law. For instance, acts such as

100
(1993) 2 SCC 746
101
AIR 1994, SC 2663; (1994) 6 SCC 205
102
AIR 1994, SC 2663; (1994) 6 SCC 205

90
defence of the country, raising (the) armed forces and maintaining it, making peace or war,
foreign affairs, power to acquire and retain territory, are functions which are indicative of
external sovereignty and are political in nature. Therefore, they are not amenable to
jurisdiction of ordinary civil court. No suit under Civil Procedure Code would lie in respect
of it. The State is immune from being sued, as the jurisdiction of the courts in such matters is
impliedly barred.‖103

The court proceeded further, as under:

―But there the immunity ends. No civilized system can permit an executive to play with the
people of its county and claim that it is entitled to act in any manner, as it is sovereign. The
concept of public interest had changed with structural change in the society. No legal or
political system today can place the State above (the law) as it is unjust and unfair for a
citizen to be deprived of his property illegally by negligent act of officers of the State without
any remedy. From sincerity, efficiency and dignity of (the) State as a juristic person,
propounded in nineteenth century as sound sociological basis for State immunity, the circle
had gone round and the emphasis now is more on liberty, equality and the rule of law. The
modern social thinking of progressive societies and the judicial approach is to do away with
archaic State protection and place the State or the Government on a par with any other juristic
legal entity. Any watertight compartmentalization of the functions of the State as
―sovereign and non- sovereign‖ or ―governmental and non-governmental‖ is not sound. It is
contrary to modern jurisprudential thinking. The need of the State to have extraordinary
powers cannot be doubted. But with the conceptual change of statutory power being statutory
duty for (the) sake of society and the people, the claim of a common man or ordinary citizen
cannot be thrown out, merely because it was done by an officer of the State; duty of its
officials and right of the citizens are required to be reconciled, so that the rule of law in a
Welfare State is not shaken‖.

The court emphasised the element of Welfare State in these words:

―In (a) Welfare State, functions of the State are not only defence of the country or
administration of justice or maintaining law and order, but it extends to regulating and
controlling the activities of people in almost every sphere, educational, commercial, social,

103
Ibid

91
economic, political and even marital. The demarcating line between sovereign and non-
sovereign powers, for which no rational basis survives, had largely disappeared. Therefore,
barring functions such as administration of justice, maintenance of law and order and
repression of crime etc. which are among the primary and inalienable functions of a
constitutional Government, the State cannot claim any immunity.‖104

The Court linked together the State and the officers:

―The determination of vicarious liability of the State being linked with (the) negligence of its
officers, if they can be sued personally for which there is no dearth of authority and the law
of misfeasance in discharge of public duty having marched ahead, there is no rationale for the
proposition that even if the officer is liable, the State cannot be sued.‖105

The court also distinguished the judgment in KasturiLal, in these words:

―Ratio of KasturiLal is available to those rare and limited cases where the statutory authority
acts as a delegate of such functions for which it cannot be sued in court of law. In KasturiLal
case, the property for damages of which the suit was filed was seized by the police officers
while exercising the power of arrest under section 54(1) (iv) of the Criminal Procedure Code.
The power to search and apprehend a suspect under Criminal Procedure Code is one of the
inalienable powers of State. It was probably for this reason that the principle of sovereign
immunity in the conservative sense was extended by the Court. But the same principle would
not be available in large number of other activities carried on by the State by enacting a law
in its legislative competence."

In this context, the court (in NagendraRao) offered the following distinction. ―A law may be
made to carry out the primary or inalienable functions of the State. Criminal Procedure Code
is one such law. A search or seizure effected under such law could be taken to be an exercise
of power which may be in domain of inalienable function. Whether the authority to which
this power is delegated is liable for negligence in discharge of duties while performing such
functions, is a different matter. But, when similar powers are conferred under the other statute
as incidental or ancillary power to carry out the purpose and objective of the Act, then, it
being an exercise of such State ―function which is not primary or inalienable, an officer
acting negligently is liable personally and the State vicariously. Maintenance of law and

104
AIR 1994, SC 2663; (1994) 6 SCC 205
105
Ibid

92
order or repression of crime may be inalienable functions, for (the) proper exercise of
which, the State may enact a law and may delegate its functions, the violation of which may
not be sueable in torts, unless it trenches into and encroaches on the fundamental rights of life
and liberty guaranteed by the Constitution. But that principle would not be attracted where
similar powers are conferred on officers who exercise statutory powers which are otherwise
than sovereign powers as understood in the modern sense. The Act (Essential Commodities
Act) deal with persons indulging in hoarding and black marketing. Any power for regulating
and controlling the essential commodities and the delegation of power to authorized officers
to inspect, search and seize the property for carrying out the object of the statute cannot be a
power, for (the) negligent exercise of which the State can claim immunity. No constitutional
system can, either on State necessity or public policy, condone negligent functioning of the
State or its officers.‖ 106

By this case the judicial perspective on State Liability for torts committed became quite clear
as it was evident that for those torts committed by State servants those which infringed
fundamental rights the public law remedy of granting ex-gratia compensation by writs was
encouraged and permitted. But the doctrine of Sovereign immunity still was uncertain and
existed while seeking remedies under private law.

Further the view of the Andhra Pradesh High Court in ChallaRamkonda Reddy Vs. State of
AP was approved by Supreme Court in State of A.P. v. Chella Ramakrishna Reddy107.

Analysis and highlights of important inferences from the above discussed cases:

From the cases like Rudal Shah v. State of Bihar, Bhim Singh v. State Of Jammu And
Kashmir and ChallaRamkonda Reddy Vs. State of AP one thing becomes quite clear that post
independence the approach of the judiciary was to grant compensation to the victims for
those torts like custodial death, false imprisonment etc, where there were infringement of
fundamental rights.

In ChallaRamkonda Reddy Vs. State of AP it was clearly stated that plea of sovereign
immunity was not available, where there was a violation of the fundamental rights of the
citizens. This also means that the concept of sovereign immunity existed in other torts where
no fundamental rights can be curtailed. This proves the dependency of getting compensation

106
AIR 1994 SC 2663; (1994) 6 SCC 205
107
AIR 2000 SC 2083

93
and establishing tortious liability of State sole on the establishment of the fact that the tort
involved infringement of Fundamental Right.

From the landmark judgement pronounced in N. NagendraRao Vs. State of AP two

points emerged. First was that ‗In the modern sense, the distinction between sovereign or
non-sovereign power thus does not exist‘ and second was ‗Any watertight
compartmentalization of the functions of the State as ―sovereign and non-sovereign‖ or
―governmental and non-governmental‖ is not sound. It is contrary to modern jurisprudential
thinking‘ which mean that any State liability established by analysing the function of State as
‗Sovereign‘ or ‗Non-Sovereign‘ was something which was not beyond doubts.

From the above cases it can be inferred that for those torts committed by State servant
that infringed fundamental rights the public law remedy of granting ex-gratia compensation
by writs was encouraged and permitted. But the doctrine of Sovereign immunity still was
uncertain and existed while seeking remedies under private law.

Recent Judgements on State Liability under tort

In the decision reported in Darshan v. Union of India 108 , the said principle was invoked. That
was a case in which the deceased had fallen into a man hole left uncovered by the authority
concerned and the authority was held responsible. In the said case it was observed as follows:

"Coming to the instant case, it is one of res ipsa loquitur, where the negligence of the
instrumentalities of the State and dereliction of duty is writ large on the Red Fort in leaving
the manhole uncovered. The dereliction of duty on their part in leaving a death trap on a
public road led to the untimely death of Skattar Singh. It deprived him of his fundamental
right under Article 21 of the Constitution of India. The scope and ambit of Article 21 is wide
and far reaching. It would, undoubtedly, cover a case where the State or its instrumentality
failed to discharge its duty of care cast upon it, resulting in deprivation of life or limb of a
person. Accordingly, Article 21 of the Constitution is attracted and the petitioners are
entitled to invoke Article 226 to claim monetary compensation as such a remedy is available
in public law, based on strict liability for breach of fundamental rights."

In State of Haryana v. Santra109, the ratio of the case was on the principles of state liability for
negligence. Here it was clearly established that the doctor while performing the operation was

108
2000 ACJ 578
109
2000 (1) CPJ 53 (SC)

94
acting as a government servant and acting in the course of employment of the government.
Hence when there was negligence, it amounted to acting in bad faith, and so the defence of
sovereign immunity could not be used by the state. Moreover it was also held that such
negligence which could have been perceived by a professional who had a duty to do so
should take into consideration these matters and cannot escape liability by claiming defence
of consent by the petitioner.

On the other hand in Sube Singh v. State of Haryana 110 it was laid down that compensation is
not to be awarded in all cases. This case limited the award of compensation to cases where:

(i) the violation of Article 21 is patent and inconvertible; (ii) the violation is gross and of a
magnitude to shock the conscience of the court; or (iii) the custodial torture alleged had
resulted in death, or the custodial torture is supported by medical report or visible marks or
scars or disability.

In this case, the petitioner alleged illegal detention, custodial torture and harassment to the
family members of the petitioner. Applying the foregoing criteria, the Court did not award
any compensation in this case on the ground of lack of clear and incontrovertible evidence.

In another case of Marakkarvs State Of Kerala111, while allowing the appeal claiming
compensation against the State, the High Court of Kerala made the following observation:

―The matter has been so elaborately considered with a view to sound a note of caution to the
public authorities. They seem to remain under the impression that they cannot be made liable
for their culpable acts and omissions. Things have gone to such a state that it has become
necessary to issue orders from courts to the authorities concerned to repair the roads. In such
a state of affairs the court has to invoke its jurisdiction to come to the rescue of the public.
Let the authorities‘ note that they cannot be get away with their culpable acts or omissions
with impunity. They may have to pay for their apathy. They are alerted that unless they
bestow sufficient care in discharging their social obligations, they may be in peril.‖

In Kanti Devi & Others vs State Of U.P. & Others112, the High Court of Allahabad while
allowing the appeal to grant compensation to the victims‘ family who had died in lathi charge
by U.P Police personals, made the following observations:

110
(2006) 3 SCC 178
111
2009 CriLJ 1703.

95
―......It was observed that award of compensation in a proceeding under Article 32 by
the Apex Court or by the High Court under Art.226 of the Constitution is a remedy available
in public law, based on strict liability for contravention of fundamental rights to which
principle of sovereign immunity does not apply, even though it may be available as a
defence in private law in an action based on tort. In view of the fact, the defence of sovereign
immunity is not available in the constitutional remedy under writ jurisdiction. The writ
petition is maintainable to exemplary cost in cases of violation of Constitutional right
enshrined under Article 21 & 22 for the negligent act of the Police of Sate of U.P. in exercise
of the power on behalf of State. The defence of sovereign immunity may be applicable in
Appropriate Cases in private law, wherein vicarious liability of State in tort may arise. Our
State is a welfare State. The Government and its employees have to protect the fundamental
and Constitutional right of our citizen. High Court being the protector of civil liberties, has
not only power and jurisdiction under Article 226 to entertain the petition but there is
obligation also to grant appropriate relief to the victim or heir of the victim for violation of
fundamental right of life and liberty, notwithstanding the remedy available for filing civil suit
for damages for vicarious liability in tort and further to prosecute for offence. Hence in view
of the aforesaid discussion, it is clear that the objection raised by the learned Government
Advocate in the present case that the action of the appellant was in exercise of sovereign
power and the petition is not maintainable for compensation against the State, is
misconceived and the same cannot be accepted.‖
In another case of AdambhaiSulemenbhaiAjmeri&Ors. v. State of Gujarat (the Akshardham
Temple case) 113, the accused persons spent more than a decade in prison; the Supreme Court
acquitted the accused persons with a specific noting as to the perversity in the conduct of the
case from investigation to conviction to sentencing but did not award any compensation to
those wrongfully convicted; despite also noting that the police instead of booking the real
culprits caught innocent people and subjected them to grievous charges.

However, when a separate petition praying for compensation came up before another bench
of the Supreme Court, the plea for compensation was rejected on the grounds that acquittal
by a court did not automatically entitle those acquitted to compensation and if compensation
is to be awarded for acquittal, it will set a dangerous precedent‖.

112
Civil Writ Jurisdiction Case No. 18500 of 2011. Decided On, 22 February 2012 available at
https://indiankanoon.org/doc/31838786/
113
(2014) 7 SCC 716

96
The foregoing is in contrast to the other cases where under similar circumstances the court
held the State accountable and awarded compensation. Perhaps it was owing to this kind of
variance in the decisions on otherwise similar facts that the High Court of Delhi in its
Reference to the Commission noted that ―these (awards of compensation for wrongful
incarceration under public law) are episodic and are not easily available to all similarly
situated persons.‖114

In Ram Lakhan Singh v. State Government of Uttar Pradesh115 it was highlighted by the
Apex Court that ―In cases of wrongful incarceration, prosecution involving infringement or
deprivation of a fundamental right, abuse of process of law, harassment etc., though it had
evolved as a judicial principle that the Supreme Court and the High Courts have the power to
order the State to pay compensation to the aggrieved party to remedy the wrong done to him
as well as to serve as a deterrent for the wrongdoer; but there is no set framework(statutory
or otherwise) within which the right to compensation or the quantum of compensation is
determined. Compensation for violation of fundamental rights in aforementioned cases is a
public law remedy but there is no express provision in the Constitution of India for grant of
compensation by the State in such cases. 116 It is a remedy determined and decided on case-
to-case basis dependent on the facts of each case, the disposition of the court hearing the case
etc. which makes this remedy arbitrary, episodic and indeterminate117...‖

VohraSadikbhaiRajakbhai&Ors. Vs. State of Gujarat &Ors118, is a recent case where again

the Supreme Court while deciding the liability of the State determined the nature of the
function of the State and relied on a previous judgement which granted compensation as
the function for which damage was caused was a non- sovereign function.

The appellants herein are the owners of land, which is proximate to the Mazum dam that had
been built over river Mazum. They had grown hybrid berry trees over the said land which,
they claim, belong to their ancestors and were earning their livelihood from the fruits of the
said trees. Respondents have built a dam over River Mazum in the nearby area for supplying
water for irrigational purpose and thereby to earn revenue. In June 1997, there were heavy
rains in the said area which resulted in overflowing of the water in the dam.

114
Law Commission Report, available at: https://lawcommissionofindia.nic.in/reports/Report277.pdf ( Last visited on
05.02.18)
115
(2015) 16 SCC 715
116
Vibin P.V. v. State of Kerela, AIR 2013 Ker 67
117
State of Orissa v. DuleshwarBarik, 2017 (I) OLR 824
118
AIR 2016 (SC) 2429

97
In order to save the dam, the respondents released nearly 60,000 cusecs of water. This release
of water flooded the fields of the appellants. With the submerging of the land of the
appellants, all the trees standing on the land got uprooted resulting in destroying the whole
cultivation of hybrid berries. According to the appellants, there entire 8 bighad of agricultural
land became part of the river Mazum and the only source of livelihood was lost. The
appellants claimed compensation for the damage done to the trees standing on the said land
by serving legal notice to the respondents under Section 80 of the Code of Civil Procedure,
1908. Damages and compensation to the extent of 21,50,000 was claimed alleging that
it happened due to gross negligence and lack of administration on the part of the respondents.

In this case though compensation was granted establishing the liability of the State but the
relevant point is that while deciding the matter the Court considered the nature of the act on
line of sovereign and non-sovereign functions and for that it quoted the following passage
from the judgement in S.Vedantacharya&Anr. v. Highways Department of South
Arcot&Ors, SC, (1987) 3 SCC 400:

"State Government erected a reservoir adjoining the plaintiff's land in order to provide
drinking water facilities to a village in the State.

The State acquired a part of the plaintiff's land for the purpose of constructing a channel for
carrying the overflow of water from the reservoir to a Nalla which was at a distance of about
1500 feet from the waste-weir of the reservoir. This channel was however not constructed
except to the extent of 250 feet on the side of the Nalla. Due to very heavy rainfall the water
from the reservoir overflowed into the waste-weir and thereafter flowed over the plaintiff's
land, causing considerable damage to the land and the crops standing thereon. In a suit by the
plaintiff for damages they alleged that due to the negligence of the State in not taking proper
precautions to guard against the overflow of water they had sustained the loss.

The State inter alia contended that the loss was due to heavy rain which was an act of God
and therefore they were not liable and further that the construction of the reservoir was an act
of the State in the sovereign capacity and, therefore, it was not liable for the tortious or
negligent acts of its servants. It was held that the fact that the danger materialised
subsequently by an act of God was not a matter which absolved the State from its liability for
the earlier negligence in that no proper channel for the flow or overflow of water from the
waster- weir was constructed by it in time; that the act of the State in constructing the
reservoir for the supply of drinking water to its citizens at best could be considered a

98
welfare act and not an act in its capacity as a sovereign; and that, therefore, the State was
liable in negligence for the loss caused to the plaintiff."

In BablooChauhan @ Dabloo v. State Government of NCT of Delhi119, the High Court of

Delhi, while dealing with an appeal on the issues of fine and awarding of default sentences
without reasoning, and suspension of sentence during pendency of appeal, expressed its
concerns about wrongful implication of innocent persons who are acquitted but after long
years of incarceration, and the lack of a legislative framework to provide relief to those who
are wrongfully prosecuted. The Court, vide its order dated 30 November 2017,specifically
called for the Law Commission of India (―the Commission‖) to undertake a comprehensive
examination of issue of relief and rehabilitation to victims of wrongful prosecution, and
incarceration‟ (―the Reference‖), noting that:

There is at present in our country no statutory or legal scheme for compensating those who
are wrongfully incarcerated. The instances of those being acquitted by the High Court or the
Supreme Court after many years of imprisonment are not infrequent. They are left to their
devices without any hope of reintegration into society or rehabilitation since the best years of
their life have been spent behind bars, invisible behind the high prison walls. The possibility
of invoking civil remedies can by no stretch of imagination be considered efficacious,
affordable or timely……The decisions in Khatri v. State of Bihar (1981) 1 SCC627;
VeenaSethi v. State of Bihar AIR 1983 SC 339;RudulSah v. State of Bihar AIR 1983 SC
1086; Bhim Singh v. State of Jammu and Kashmir (1985) 4 SCC 6771 247 (2018) DLT 31.2
and SantBir v. State of Bihar AIR 1982 SC 1470, are instances where the Supreme Court had
held that compensation can be awarded by constitutional courts for violation of fundamental
right under Article 21 of the Constitution of India. These have included instances of
compensation being awarded to those wrongly incarcerated as well. But these are episodic
and are not easily available to all similarly situated persons.

There is an urgent need, therefore, for a legal (preferably legislative) framework for
providing relief and rehabilitation to victims of wrongful prosecution and incarceration…
Specific to the question of compensating those wrongfully incarcerated, the questions as

119
247 (2018) DLT 31

99
regards the situations and conditions upon which such relief would be available, in what
form and at what stage are also matters requiring deliberation...

The Court, accordingly, requests the Law Commission of India to undertake a comprehensive
examination of the issue highlighted in paras 11 to16 of this order and make its
recommendation thereon to the Government of India.‖

Analysis and inferences of the above cases to understand the present condition:

From the above discussion the inferences which can be drawn regarding State liability in
India are as follows:

The Judiciary is proactive in providing relief to the victims in cases where the damage
is caused due to the negligence of the Government employee. But in doing so as there is
absence of any specific statute making the State liable equally like any other individual for
the tort committed by its servants, the Indian courts have to time and again justify themselves
as in the case of State of Haryana v. Santra

The judgement by the Apex Court in VohraSadikbhaiRajakbhai&Ors. Vs. State of

Gujarat &Ors, where while deciding the tortious liability of the State, the nature of the
function of the State was determined is a indicator that the concept of demarking function of
the State into Sovereign and Non-Sovereign still exists in India. In this case compensation
was allowed only after establishing that the impugned act was a non- sovereign function of
the State.

From the above cases it can be inferred that compensation can be claimed against
State for tort committed by its servants only in cases where there is violation of fundamental
right or gross damage which is evident ipso facto. Thus, in cases of torts where there is no
infringement of fundamental right or where gross damage is not caused the situation in
unclear if the State can be held vicariously liable.

Further, it has been clearly stated by the Supreme Court in Ram Lakhan Singh v. State
Government of Uttar Pradesh that ―Compensation for violation of fundamental rights in
aforementioned cases is a public law remedy but there is no express provision in the
Constitution of India for grant of compensation by the State in such cases. It is a remedy
determined and decided on case-to-case basis dependent on the facts of each case, the
disposition of the court hearing the case etc. which makes this remedy arbitrary, episodic and

100
indeterminate ...‖. This means that even though the approach of the Indian Courts are to grant
compensation to the victims for torts committed by the servants of the State by establishing
the State liable for infringement of fundamental rights but it also suffers from uncertainties in
absence of any express provisions.

Thus, from the above discussion it can be summed up that the concept of State liability in
India has yet to be evolved to give a clear concept beyond ambiguities and gaps due to
absence of any express provision or statute.

3.3- Judicial Pronouncements highlighting the loopholes of law on Product Liability

In India the prime law which covers issues related to product liability is The Consumer
Protection Act, 1986 and Amendment Bill, 2018 of the said Act expressly includes Product
liability. Thus, it becomes important for this research to highlight cases which in turn will
show the gaps which are still persistent in the Consumer Protection Act.

3.3.1- Conflict of Jurisdiction and no Sub-judice bar

To protect the interest of consumers in India number of consumer protection legislations were
enacted under which number of administrative and quasi-judicial authorities were constituted.
This had created a situation in which many aspects covered by the Consumer Protection Act
also falls under the various legislations which in turn make those aspects fall within the
jurisdiction of civil courts thus resulting in conflict of jurisdiction.

While disposing of a revision application in the case of Union of India &Anr v. M.

AdaiKalam II 120 , the National Commission held that ―it had no jurisdiction to entertain
complaints of loss, destruction, damage or non-delivery of goods by railway on account of
deficiency in service since such claims fell within the exclusive jurisdiction of the
Railway Claims Tribunal constituted under the Railway Claims Tribunal Act, 1987. Yet
it is difficult to comprehend how it exercised jurisdiction in the present case.‖

In Chairman T. T. Corporation v. Consumer Protection Council 121 a claim for compensation

in respect of fatal accident of a motor vehicle was made before the Consumer Disputes
Redressal Forum. When challenged in the Hon‘ble Supreme Court it was held that,
compensation for injuries sustained in fatal accident arising out of use of motor vehicles shall
be claimed only before the Motor accident claim tribunal set up for that purpose by a special
120
(1993) CPJ145(N.C.)
121
AIR 1995, SC 1384

101
statute namely the Motor Vehicles Act, 1988.122The Apex Court gave an explanation to this
conflict of jurisdiction by stating that:

―The question which then arises for consideration is whether the National Commission had
jurisdiction to entertain the claim application and award compensation in respect of an
accident involving the death of Shri K. Kumar caused by the use of a motor vehicle. Clearly
the Claims Tribunal constituted for the area in question, had jurisdiction to entertain any
claim for compensation arising out of the fatal accident since such a claim application would
clearly fall within the ambit of section 165 of the 1988 Act. The 1988 Act can be said to be a
special Act in relation to the claims of compensation arising out of the use of a motor vehicle.
The 1986 Act being a law dealing with the question of extending protection to consumers in
general, could, therefore, be said to be a general law in relation to the specific provisions
concerning accidents arising out of the use of motor vehicles found in Chapter XII of the
1988 Act. Ordinarily the general law must yield to the special law.‖123

Further in the case of State of Karnataka v. Vishwabharati House Building Coop. Society124
, a three judge bench of the Supreme Court held that ‗.....the said Act supplements and not
supplants the jurisdiction of the civil courts or other statutory authorities‘. It means that filing
of a suit before consumer forum does not act as sub judice bar on filing on same cause of
action in a civil court. This often leads to duplicity of proceedings and multiplicity of
litigation on same cause of action.

Under section 3 of the Consumer Protection Act it is mentioned that this Act is in addition
to and not in derogation of any other law. The Supreme Court in Secretary, Thirumurugan
Co-operative Agricultural Credit Society v. M. Lalitha 125, had interpreted the above
provision to mean that ‗the remedies provided under the CP Act are in addition to the
remedies provided under other statutes.‘ The fact in brief is that the respondents, being the
members of the appellant-society, had pledged paddy bags for obtaining loan. The appellant-
society issued notices to the respondents demanding payment of loan amount with interest
thereon. The respondents filed petitions in the District Consumer Disputes Redressal Forum,
Thiruchirapally seeking direction to the appellant to release the paddy bags pledged on
receipt of the loan amount or in the alternative to direct the appellant to pay the market value

122
151Chairman T. T. Corporation v. Consumer Protection Council, AIR 1995, SC 1384
123
AIR 1995, SC 1384
124
(2003) 2 SCC 412
125
(2004) 1 SCC 305

102
of the baddy bags with interest thereon from the date of pledging till the date of release and
also to pass an order for compensation for mental agony and suffering. The appellant
contested the claims of the respondents before the District Forum raising a preliminary
objection that Consumer Forum had no jurisdiction to decide the dispute between members
and cooperative society in view of Section 90 of the Tamil Nadu Cooperative Societies Act,
1983 (for short `the Act'). The District Forum, in the light of the pleadings of the parties,
raised the following points for determination:-

"1) Whether the complainants are consumers and whether there is any consumer disputes
within the meaning of the Consumer Protection Act and whether this Forum had no
jurisdiction to entertain the complaints of this nature and decide the issue?

2) Whether there is any deficiency in service and negligence on the part of the opposite party
in all the complaints?

3) Whether the complainants in all the complaints are entitled to the reliefs prayed for?"

The District Forum answered the points 1 and 2 in favour of the respondents and granted
relief. The appellant took up the matters in appeal before the State Consumer Disputes
Redressal Commission. The respondents also filed appeal to the extent they were aggrieved
in regard to payment of interest from 14.9.1992. The State Commission, by the common
order, allowed the appeals filed by the appellant and dismissed the appeals filed by the
respondents. The State Commission held that complaints filed by the respondents were
themselves not maintainable having regard to Section 90 of the Act. Hence, the State
Commission did not deal with the other contentions. Aggrieved by the order of the State
Commission, the respondents approached the National Consumer Disputes Redressal
Commission by filing revision petition. The National Commission, after hearing the learned
counsel for the parties and dealing with the contentions advanced by them, found fault with
the order of the State Commission. Consequently, the revision petition was allowed. The
order of the State Commission was set aside restoring the order passed by the District
Forum. Hence, the appeal was filed before the Supreme Court.

The Supreme while allowing the appeal held that ―The preamble of the Act declares that it is
an Act to provide for better protection of the interest 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 matters connected therewith. In Section 3 of the Act in

103
clear and unambiguous terms it is stated that the provisions of 1986 Act shall be in addition
to and not in derogation of the provisions of the any other law for the time being in force.‖126

In National Seeds Corpn. Ltd. vsPv Krishna Reddy127, the National Commission while
deciding a matter made the following observations on section 3 of CPA:

―Accordingly, it must be held that the provisions of the Act are to be construed widely to give
effect to the object and purpose of the Act. It is seen that Section 3 envisages that the
provisions of the Act are in addition to and are not in derogation of any other law in force. It
is true, as rightly contended by ShriSuri, that the words in derogation of the provisions of any
other law for the time being in force would be given proper meaning and effect and if the
complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to
operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention
appears to be plausible but on construction and conspectus of the provisions of the Act we
think that the contention is not well founded. Parliament is aware of the provisions of the
Arbitration Act and the Contract Act, 1872 and the consequential remedy available under
Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent
court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.

This judgment of the Supreme Court has been followed in a number of subsequent cases.
Similarly, Supreme Court in Indochem Electronic and Another case (supra), Secretary,
Thirumurugan Cooperative Agricultural Credit Society case (supra), CCI Chambers Coop.
Hsg. Society Ltd. case (supra) and Vishwabharthi House Building Coop. Society and Others
case (supra), has held that Consumer Protection Act, 1986 seeks to provide remedy in
addition to the remedy provided under other Acts.‖

In National Seeds Corpn. Ltd. v. M. Madhusudhan Reddy128, it was once again asserted by
the National Commission while deciding the jurisdiction of Consumer Forum in a case where
remedy was also available under Seeds Act that ‗S. 3, Consumer Protection Act makes it
clear that compensatory remedy available under Consumer Protection Act is in addition to
and not in derogation of provisions of any other existing law....‘

126
AIR 2004, 1 SCC 305
127
Revision Petition No. 1029 OF 2004 decided on 18 November, 2008 available at https://indiankanoon.org/doc/98792984/
128
(2012) 2 SCC 506

104
It was also so said by the National Commission, in Lt. Col. Anil Raj &anr. Vs. M/s.Unitech
Limited, and another129, that‖

"In so far as the question of a remedy under the Act being barred because of the existence
of Arbitration Agreement between the parties, the issue is no longer res- integra. In a catena
of decisions of the Hon'ble Supreme Court, it has been held that even if there exists an
arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to
certain deficiency of service, then the existence of an arbitration clause will not be a bar for
the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the
remedy provided under the Act is in addition to the provisions of any other law for the time
being in force. The reasoning and ratio of these decisions, particularly in Secretary,
Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs.
& Others - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments
in the Arbitration and Conciliation Act, 1986. [Also see: Skypak Couriers Ltd. Vs. Tata
Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M.
Madhusudhan Reddy &Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that
the protection provided to the Consumers under the Act is in addition to the remedies
available under any other Statute, including the consentient arbitration under the Arbitration
and Conciliation Act, 1986."

3.3.2- Remedies restricted to Section 14 of CPA and no inherent power of the

adjudicatingauthorities

TarsemLalGoyalv. Union of India 130, is one of the landmark cases where it was held that ‗no
relief beyond the reliefs provided under sub section (1) of section 14 of the Act can be
granted‘.

There are judgements from which it can be ascertained that determination of Product liability
under CPA is very much influenced by contractual liability. Some of the cases on this point
are discussed briefly below:

In Bharathi Knitting Company v DHL Worldwide Express Courier131, the Apex Court upheld
limitation of liability clauses, that are agreed by the parties specifically whileentering into a
contract. The appeal by special leave aroused from the appellate order of the National

129
Consumer Case No.346 of 2013, decided on 02.05.2016
130
(1993) 2 CPR 191 (Punj.)
131
(1996) 4 SCC 704

105
Consumer Disputes Redressal Commission, New Delhi dated 17.1.1996 made in FA
No.317 of 1993 which in turn reversed the order of the State Forum Commission, Madras in
O.P. No.364/93 dated June 9, 1993. The admitted facts were that the respondent-plaintiff
manufacturer appeared to have an agreement with a German buyer for summer season, 1990
and consigned certain goods with documents sent in a cover on May 25, 1990 Containing (1)
invoice No.32; (2) packaging list; (3) Original Export Certificate and certificate of origin
No.T/WG/001316 dated 24.5.90; and (A) Original GSP Form A No.E1. It appeared that the
cover did not reach the destination. Consequently, though the duplicate copies were
subsequently sent by the date of receipt of the consignment, the season was over. Resultantly,
the Consignee agreed to pay only DM 35,000/- instead of invoice value DM 56,469.63. As a
result, the appellant laid the complaint before the State Commission for the difference of the
loss incurred by the respondent in DM 21,469.63 equivalent to Rs.4, 29,392.60 which was
ordered. The respondent carried the matter in appeal. The National Commission in the
impugned order held that since the liability was only of an extent of US $ 100 as per the
receipt, the appellant is entitled for deficiency of service only to that extent which is
equivalent to Rs.3, 515/- with interest at 18% from May 25, 1990 till date of realisation with
cost.132 Thus, this appeal by special leave was filed which was dismissed by the Apex court
stating that ―It is true that the Act is a protective legislation to make available inexpensive
and expeditious summary remedy. There must be a finding that the respondent was
responsible for the deficiency in service, the consequence of which would be that the
appellant had incurred the liability for loss or damages suffered by the consumer due to
deficiency in service thereof. When the parties have contracted and limited their liabilities,
the question arises: whether the State Commission or the National Commission under the
Act could give relief for damages in excess of the limits prescribed under the Contract?

It is true that the limit of damages would depend upon the terms of the contract and facts in
each case.......... in view of the above consideration and findings we are of the opinion that
the national Commission was right in limiting the liability undertaken in the contract
entered into by the parties and in awarding the amount for deficiency service to the extent of
the liability undertaken by the respondent.‖133

In MarutiUdyog v. Susheel Kumar Gabgotra, [(2006) 4 SCC 644], the manufacturer of the
vehicle had stipulated a warranty clause limiting its liability to merely repair the defects

132
(1996) 4 SCC 704
133
(1996) 4 SCC 704

106
found mission to replace the defective goods and held that ‗the liability of the manufacture
was confined if any. In view of this clause, the Supreme Court reversed the findings of the
National Commission to repairing the defect. Compensation was, however, awarded for
travel charges to the complainant, which was incurred due to the fault of the car
manufacturer.‘

In Scooter India Ltd., And Anr.vsMomna Gaur And Anr 134, the National Commission made
the following observations:

―.........We have carefully considered the submissions of the learned counsel for the parties
and perused the records. There is no doubt that the chassis of the brand new three wheeler
motor vehicle broke down within a short period. Whether this was due to the alleged over-
loading could not be clearly established by the petitioners merely on the strength of the
challans of fines under the M. V. Act, produced by them. However, we are inclined to agree
with Ms.Kohli that in view of the law on the subject laid down by the Apex Court in a catena
of judgments (including that in the case cited by Mrs.Kohli above), replacement of the
defective chassis by a new one is the legally available relief to the respondent. We, therefore,
direct the petitioners to replace the chassis of the vehicle with a brand new one and provide
the requisite fresh warranty therefore. In addition, any repairs that may be necessary to make
the vehicle completely road-worthy shall be carried out by the petitioners free of charge to
the respondent. These directions shall be complied with within two weeks of the respondent
bringing the vehicle in question to the premises of the authorised dealer. In addition,
considering the specific facts and circumstances of the case, the petitioner shall pay a sum of
Rs.10, 000/- to respondent no. 1 towards the cost of the proceedings all through, within four
weeks from the date of this order. It is, however, clarified that this award of cost is in the
context of the special features of this case and shall not be treated as a precedent against the
petitioners.‖

3.3.3-Limitations of Quasi-judicial Redressal Forums

It is well settled by judicial approaches and trends that the Redressal Forum under the

Act had power to decide matter which are ‗the matters of summarily nature‘ only. 135

134
Revision Petition No. 3642 of 2009 on 4 April, 2012, available at https://indiankanoon.org/doc/197126822/

107
Summary Procedure not adequate to deal with all cases:

In ProcalorPhotographicsPvt. Ltd v. OCL Photo Industries Pvt. Ltd136, the Chandigarh State
Commission set aside order of District Forum on the ground that, ‗…. A huge amount of
evidence will be required to be laid by the parties … …invoking the summary procedure is
not appropriate….‘

Similarly in Synco Industries v. State Bank of Bikaner and Jaipur & others137, Hon‘ble
Supreme Court dealt with similar matter saying that ‗…the matter cannot be disposed of in
summary manner hence not within the jurisdiction of Consumer Forums.‘ The facts of the
case are that the appellants moved to the National Consumer Disputes Redressal Commission
alleging that the respondents had been guilty of deficiency in service in that they had, without
good reason, frozen the sanctioned working facilities of the appellant without prior
intimation. In this behalf, the appellant sought a direction to the first respondent to prepare a
funding package to re-start the appellant's oil division and to grant waiver of interest,
damages in the sum of Rupees fifteen crores and an additional sum of Rupees sixty lakhs to
cover cost of travelling, man days lost and other expenses incurred by the appellant in
pursuing the matter with the respondents. The National Consumer Disputes Redressal
Commission dismissed the complaint saying, "The complaint is against the bank, whether the
bank is entitled to reduce the loan facilities or not. We do not consider it to be a fit case to be
tried under the Consumer Protection Act. The Original Petition is dismissed. However, the
complainant is at liberty to go (to) the Civil Court or any other forum, if so advised."

Against this order of dismissal of the complaint, the appellant had filed appeal and it had
been referred to a Bench of three Judges because it was felt that the question raised was one
of importance. The Apex Court held that:

‗Given the nature of the claim in the complaint and the prayer for damages in the sum of
Rupees fifteen crores and for an additional sum of Rupees sixty lakhs for covering the cost
of travelling and other expenses incurred by the appellant, it is obvious that very detailed
evidence would have to be led, both to prove the claim and thereafter to prove the damages
and expenses. It is, therefore, in any event not an appropriate case to be heard and disposed

135
Dr.SudhirTarote, Critical Evaluation of the Effectiveness of Consumer Complaint Redressal Agencies under The
Consumer Protection Act, 1986, November 22, 2013.
136
1992 CPC 201 (Chandigarh)
137
(2002 (46) ALR 54 (SC)

108
of in a summary fashion. The National Commission was right in giving to the appellant
liberty to move the Civil Court.‖

Hon‘ble Supreme Court reiterated the same view in Trai Foods Ltd. v. National Insurance
Company and Ors. (III)138and hence now it is undisputable that the Consumer Dispute
Redressal Agencies falls short of jurisdiction if the matter cannot be decided summarily.

Lack of Inherent power:

Another major drawback of present CPA is that the redressal agencies are quasi-judicial
bodies which mean that they lack inherent power like normal courts. This was clearly stated
by the National Commission while discussing powers of Consumer Complaint Redressal
Agencies established under the Act in Andhra Pradesh State Electricity Board v. Andhra
Pradesh State Electricity Consumer Association, (I)139, that:

‗The consumer dispute redressalFora have been set up under the Consumer Protection Act,
1986 and the jurisdiction and powers of these Fora have to be gathered only from the
provisions of the said Act and since these Fora are not court there cannot be any concept of
inherent powers.‘140

Similarly, the redressal agencies under CPA lack power to review or recall order. Some of the
cases on this are as follows:

The Hon‘ble Supreme Court held in Indian Bank v. M/s. Satyam Fibres (India) Pvt. Ltd.141
that:

―…the Authorities be they Constitutional, Administrative or Statutory (and particularly those

who have to decide a lis, i.e. litigation) possess the power to recall their judgments or orders
if they are obtained by fraud as fraud and justice never dwell together.‖142

State Commissions and the National Commission are nowhere declared as the ‗Courts of
Record‘, nor is there any provision, which invests these higher consumer forums with
precedent creating power.143

138
(2012) CPJ 17 (SC)
139
(1992) CPJ 148 (151) (NC)
140
(1992) CPJ 148 (151) (NC)).
141
AIR 1996 SC 2592: (1996) 5 SCC 550
142
AIR 1996, SC 2592
143
Dr.SudhirTarote, Critical Evaluation of the Effectiveness of Consumer Complaint Redressal Agencies

109
In Mahabubnagar Citizens Council (Regd. Society) v. District Consumer Disputes Redressal
Forum144, Mahabubnage, the circular issued by District Forum, Mahabubnage was challenged
in the Hon‘ble High Court of A. P. The Circular declared that a complaint can be filed by the
consumer activists‘ organisation on behalf of its members alone, but for none else. This
circular was based on the decision of State Consumer Disputes Redressal Forum reported in
Telephone Services Society v. Calcutta Telephone (1995 (2) CPR). While dealing with the
applicability of the said decision the Hon‘ble High Court held that ‗a decision of the West
Bengal Forum, though may be available for reference by the respondent, yet it had no
precedent value as the West Bengal forum is not a Court of Record. Hence the Court had
taken help of statutory provision and the circular is declared as void ab initio.‘

In Ghaziabad Development Authority v. Nishi Agarwal (II)145 the District Forum decided the
complaint and subsequently modified its order. When challenged in Uttar Pradesh State
Commission the order was set aside. The Commission opined that the subsequent order of
District Forum amounts to ‗review of its earlier order‘ There being no provision for Review
under the Act, the subsequent order needs to be set aside. Similarly as held in Smt. Manju
Nag v. CESC Ltd, (I)146 according to West Bengal State Commission, the Commission had
not been vested with any power to review its own order.

In Ambrish Kumar Shukla& 21 ors. v. Ferrous Infrastructure Pvt. Ltd.147 , the National
Commission while taking up the issue tried to decide whether a complaint under
Section 12(1)(c) of the Consumer Protection Act filed on behalf of or for the benefit of
only some of the numerous consumers having a common interest or a common grievance is
maintainable or it must necessarily be filed on behalf of or for the benefit of all the
consumers having a common interest or a common grievance against same person?

While deciding the issue the National Commission elucidated on the object of ―class action
suit‖ as under:

That a suit in terms of order 1 Rule 8 of the Code of Civil Procedure commonly
termed as a class suit is intended on behalf or for the benefit of all the persons having a
common grievance against the same party and seeking the same relief not on behalf of or for
the benefit of only some of them.

144
1996-LAWS(APH)-8-13 : 1997-ALT-1-60 : 1997-ALD-1-40
145
(1998) CPJ 138
146
(2001) CPJ 174
147
2016 SCC On Line NCDRC 1117

110
 A complaint under Section 12(1)(c) of the Consumer Protection Act can be instituted
only by one or more consumers, as defined in Section 2(1)(d) of the Consumer Protection
Act. Therefore, a group of Cooperative societies, Firms, Association or other Society cannot
file such a complaint unless such society etc. itself is a consumer as defined in the aforesaid
provision.

That more than one complaints under Section 12(1)(c) of the Consumer Protection
Act are not maintainable on behalf of or for the benefit of consumers having the same
interest i.e. a common grievance and seeking the same / identical against the same person.

That in case more than one such complaints have been instituted, it is only the
complaint instituted first under Section 12(1)(c) of the Consumer Protection Act, with the
requisite permission of the Consumer Forum, which can continue and the remaining
complaints filed under Section 12(1)(c) of the Consumer Protection Act are liable to be
dismissed with liberty to join in the complaint instituted first with the requisite permission of
the Consumer Forum.

That individual complaints instituted before grant of the requisite permission under
Section 12(1)(c) of the Consumer Protection Act can continue despite grant of the said
permission but it would be open to such complainants to withdraw their individual
complaints and join as parties to the complaint instituted in a representative character.
However, once the requisite permission under Section 12(1)(c) of the Consumer
Protection Act is granted, an individual complaint, expressing the same grievance will not be
maintainable and the only remedy open to a consumer having the same grievance is to join as
a party to the complaint instituted in a representative character.

Directions to exercise due care and caution while considering such a complaint to grant the
requisite permission, only where the complaint fulfils all the requisite conditions in terms of
Section 12(1)(c) of the Consumer Protection Act read with Order I Rule 8 of the Code of
Civil Procedure .148

The Bench should either give individual notices or an adequate public notice of the
institution of the complaint to all the persons on whose behalf or for whose benefit the
complaint is instituted. Such a notice should disclose interalia

148
2016 SCC OnLine NCDRC 1117; available at https://indiankanoon.org/doc/28342935/

111
 the subject matter of the complaint including the particulars of the project if
the complaint relates to a housing project / scheme,

the class of persons on whose behalf or for whose benefit the complaint is filed

the common grievance sought to get redressed through the class action,

the alleged deficiency in the services and

the reliefs claimed in the complaint.

Further below are some of the recent judgements given by the Apex Court that proves the
existence of loopholes in the existing CPA and the limitations of the redressal agencies.

In Om Prakashv. Reliance General Insurance 149, the Appellant insured his truck with the
Respondent. The Appellant‘s vehicle was stolen and consequently, an FIR was also lodged.
The theft of the vehicle had taken place on 23.03.2010, the FIR was lodged on 24.03.2010
and the claim petition with the Respondent Company was filed on 31.03.2010. On lodging
the insurance claim, the Investigator appointed by the Respondent confirmed the factum of
theft and consequently, the Corporate Claims Manager approved an amount of Rs.7,85,000/-
for the said claim of the appellant. Thereafter, the Appellant made several requests to the
respondent, seeking speedy processing and disposal of his insurance claim. However, on
non-payment the Appellant served a legal notice to the Respondent but the Respondent
repudiated the Appellant‘s insurance claim citing breach of condition of terms of Insurance
by the Appellant. The impugned term was that there should be immediate information to the
Insurer about the loss/theft of the vehicle. Aggrieved by the aforesaid, the Appellant filed
complaint before the, District Consumer Disputes Redressal Forum (‗District Forum‘),
seeking a direction to the respondent-company for payment of claim amount with an interest
@ 18% per annum, along with compensation of Rs.1,00,000/-. However, the District Forum
dismissed the complaint of the appellant. The Appellant met with a similar fate in State
Commission as well as National Commission, wherein his appeals were dismissed. In the
instant case, the Appellant approached the Supreme Court against National Commission‘s
order and challenged the legality and correctness of the said order.

The Supreme Court allowed the Appellant‘s appeal and made the following observations
‗that the Consumer Protection Act, 1986 is a beneficial legislation that deserves liberal

149
(2017) 9 SCC 724

112
construction. This laudable object should not be forgotten while considering the claims made
under the Act.‘

In the recent case, M/S Emaar MGF Land Limited &Anr.v. Aftab Singh 150, the Two- Judge
Bench of the Supreme Court agreed with NCDRC‘s holding in July 2017 whereby, the
National Commission ruled that an Arbitration Clause in Buyer‘s Agreement cannot
circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to
Section 8 of the Arbitration Act.

Analysis and Inferences of the above cases:

There is conflict of jurisdiction of Consumer Protection Act specific statutes like

Sales of Goods Act, Motor Vehicle Act, Railway Tribunal Claims Act etc.

There is no Sub-Judice Bar which means that filing of a suit before consumer forum
does not act as sub judice bar on filing on same cause of action in a civil court.

Remedies are restricted to Section 14 and there are alternative remedies available
other than unliquidated compensation.

Product liability under CPA is very much influenced by contractual liability. The limit
of damages depends upon the terms of the contract and facts in each case.

The Redressal agencies under CPA being a quasi-judicial forum suffers from
limitations like it can try only those matters which are of summarily nature. The Consumer
Dispute Redressal Agencies falls short of jurisdiction if the matter cannot be decided
summarily.

The Redressal Agencies under CPA lack of inherent power.

Class action suits under CPA are only permitted on the fulfilment of all the requisite
conditions in terms of Section 12(1)(c) of the Consumer Protection Act read with Order I
Rule 8 of the Code of Civil Procedure .

It is only after the intervention of the Apex Court that the deserved liberal
interpretation is made, CPA being a beneficial legislation which is often not done by the
forums.

150
Civil Appeal No. 23512-23513 of 2017 (Unreported Order, Supreme Court) (India)

113
3.4- Judicial Pronouncements and Public Nuisance

The researcher has discussed cases on public nuisance and the available remedies in India.
Presently, the available remedies are mainly under the criminal law. Had the remedy been
codified under tort law, the litigants in the event of public nuisance could avail unliquidated
damages as well. In Many environmental law cases, public nuisance was seen.

3.4.1- Cases dealing with Public Nuisance under Criminal Procedure Code (Cr.P.C)
andIndian Penal Code (I.P.C)

The remedies which are generally provided while adjudicating cases of public nuisances
under criminal laws are preventive and punitive in nature. To prove this the researcher
discusses below few recent cases.

In RamachandraMalojiraoBhonslevsRasikbhaiGovardhanbhaiRaiyani151, the petitioner had

purchased a flat on the ground floor of Shubh Apartments, 51-Vishwaas Colony, behind
National Plaza, Alkapuri, Baroda. When he purchased the flat there was no provision of
electricity, nor for supply of water and no electric motor was installed for lifting water to
supply it to other flats in the complex. Subsequently, the builder installed water pump run by
electricity for lifting water so as to make it reach to other flats in the complex. In this process,
the electric motor used to be operated by various occupants of different flats according to
their convenience at various times causing nuisance to the petitioner. He was suffering from
ailment so also his wife. Apprehending nuisance to himself and his wife, the petitioner
approached the learned Executive Magistrate with an application under sec. 133 of the Code
of Criminal Procedure for removal of this nuisance. Thereafter, an order was passed on July
20, 1998 wherein, the learned Sub- Divisional Magistrate directed that the respondent should
remove the electric motor installed below the flat to eliminate noise pollution and electric
motor pump should be shifted and installed within the premises so that it causes no noise
pollution. Feeling aggrieved, a revision was preferred and the revisional Court, through the
impugned order, allowed the revision and set-aside the order of the learned Sub-Divisional
Magistrate. Hence, this revision petition was filed by the petitioner. The High Court while
deciding the matter held that ―the respondent no.1 appeared before the Executive Magistrate
and denied that it was a case of public nuisance. In case of such denial, the Executive
Magistrate was required to enquire into the matter about the existence of right in the nature

151
2001 CriLJ 866

114
of public nuisance or private nuisance. And, if in such inquiry the Executive Magistrate
found that there was some reliable evidence, on such denial he was bound to stay the
proceedings and he was further bound to direct the complainant or the parties to approach
competent Civil Court for adjudication of their rights. If, on the other hand, he found that
there was no reliable denial evidence then he should have proceeded under sec. 138 of the
Code of Criminal Procedure and then only, the conditional order which was passed under
sec. 133(1) of the Code of Criminal Procedure could be made absolute.‖152

Deciding the question of applicability of section 133 of Cr.P.C. the Kerala High Court held in
Ganapathy v. State of Kerela153, held that ―where the people of the locality were drawing
water during draught i.e. the public had a right for using the well for drawing drinking water
and thus there was a public right and as such the Sub Divisional Magistrate had jurisdiction to
invoke S. 133 Cr.P.C.‖154

In KachrulalBhagirathAgrawal v. State of Maharashtra155, the Supreme Court while

explaining the section 133 of Cr.P.C made the following observations:

―The object and purpose behind Section 133 of the Code is essentially to prevent public
nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take
recourse immediately irreparable danger would be done to the public. It applies to a
condition of the nuisance at the time when the order is passed and it is not intended to apply
to future likelihood or what may happen at some later point of time. It does not deal with all
potential nuisances and on the other hand applies when the nuisance is in existence.

Section 133 of the Code as noted above appears in Chapter X of the Code which deals with
maintenance of public order and tranquillity. It is part of the heading public nuisance. The
term nuisance as used in law is not a term capable of exact definition and it had been pointed
out in Halsbury's Law of England.

Even in the present day there is no entire agreement as to whether certain acts or omissions
shall be classed as nuisance or whether they do not rather fall under other divisions of the law
of tort.‖156

152
RamachandraMalojiraoBhonslevsRasikbhaiGovardhanbhaiRaiyani, 2001 CriLJ 866
153
2001(1) Klt 574
154
Ganapathy v. State of Kerela, 2001(1) Klt 574
155
SC 2004, Crl.L.J (14634)
156
KachrulalBhagirathAgrawal v. State of Maharashtra , SC 2004, Crl.L.J (14634)

115
The Apex Court also noted that the trade must be injurious in present to the health or physical
comfort of the community.

Shri Peter Fernandesvs State Of Goa Through Mapusa Police157- The facts of the case in brief
is that the petitioner was the owner of a property that had several trees and the respondent
no.2 who was also the informant had a house in the adjoining property which belongs to her
bhatkar and both these properties are separated by a water drain. On or about 16.5.2005 the
said informant filed an application to the Executive Magistrate, inter alia, stating that there
were two mango trees and two jackfruit trees leaning on the roof of her residential house in a
dangerous situation and that thepetitioner in spite of requests to cut down/trim down the
branches of said trees, several times, had not cut the said branches and as the monsoon was
arriving, action was to be initiated to cut down the branches of the trees. It is also stated that
in the monsoon of the year 2005 one branch had collapsed and damaged the roof tiles and
other household articles. Presumably the said information of the said informant was referred
to the police for inquiry and report and it appears that a panchanama was drawn on 3.6.2006.
In the said panchanama it was stated that there were four trees at the site of said informant at
a distance of about 3 mts. and it was stated that the said four trees had become old. It was also
opined that during heavy rains the said trees may get uprooted or their branches may break
and fall.

Although the initial information filed by the said informant wasessentially for the cutting
down or trimming of the branches of the said trees, the Learned Executive Magistrate by his
conditional order directed the petitioner to cut down two mango trees and two jackfruit trees
belonging to the petitioner or show cause as to why the same should not be ordered to be cut.
Against this order the petitioner filed a revision petition which came to be dismissed by the
learned Additional Sessions Judge, by order dated 30.12.2006. Against this order, a petition
was filed before Hon‘ble High Court of Bombay. The High Court made the following
observations while setting aside the impugned orders:

―This Court in unreported judgment dated 23.11.2006 in Criminal Writ Petition No. 25 of
2006 in the case of Mr.Vyanjkatesh Y. Gaonkar v. State had noted that proceedings under
Section 133 of the Code are not meant to settle private disputes between two parties. Section
133 of the Code provides for a summary and quick remedy, inter alia, for cutting down of a
tree which was likely to fall. The word 'likely' is otherwise not defined in the Code but its

157
2007(2) GLR 228

116
ordinary dictionary meaning as per Concise English Dictionary, is such as well might happen
or be true, promising, probably. There is no doubt whether a particular tree or its branch are
likely to fall cannot be foretold with any degree of accuracy but certainly some evidence must
be produced to show that a particular tree is likely to fall either because it had developed a
crack or is infested with insects or suffers a disease or weakness or other infirmity, etc. which
would make it fall. The danger of falling must be in present, as observed by the Apex Court
in Kachrulal (supra) and in normal weather conditions and not in distant future since one
cannot foretell as to what could happen in abnormal weather conditions. Only because the
informant feared that the branches of the said trees might fall in the ensuing monsoon season
was insufficient to have given any jurisdiction to the Learned Executive Magistrate who had
initiated the proceedings under Section 133(1)(d) of the Code. Likewise a mere allegation
that the trees had become old was insufficient for the Learned Executive Magistrate to
conclude that they were likely to fall and invoked his jurisdiction under the said Section. In
case the said branches of the trees belonging to the petitioner caused any nuisance to the
informant, her remedy was clearly by way of a civil suit. It was necessary for the informant
who approached the ExecutiveMagistrate for initiation of proceedings under Section 133(1)
(d) to have shown that the danger was imminent i.e. in present that the tree was likely to fall.

It is also to be noted that proceedings under Section 133 of the Code are not meant to settle
private disputes between two members of the public or members of two households and for
public authorities to waste their time in trying to settle such disputes. A Magistrate under
Section 133 of the Code exercises a public duty and he can exercise it only when
jurisdictional facts are present. There were none present in this case.‖ 158

In Metro Life Line Hospitalvs Sub Divisional Magistrate159 which was decided on 10
December, 2015, the following observations were made by the Learned Judge:

―In the instant case, admittedly in the case of patient Ms.Kirti, a wrong report regarding blood
group and platelet count was given by the petitioner Doctors Diagnostic Center which was
sought to be acted upon by the petitioner Metro Life Line Hospital. Any such wrong report
could have proved fatal. However, the same is not covered within the provisions of
Section 133 Cr. P.C. or the term 'public nuisance', as defined in section 268 IPC. The
running of a Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional

158
Shri Peter Fernandesvs State Of Goa Through Mapusa Police, (2007(2) GLR 228)
159
Crl. Revision No. 21/15 available at:
https://indiankanoon.org/docfragment/86033530/?formInput=section%20133%20Cr.P.C

117
Magistrate, Najafgarh and Crl. Revision No. 20/15 HemantKapoor Vs. Sub Divisional
Magistrate, Najafgarh 10-12-2015 22 of 24 hospital i.e. Metro Life Line Hospital or a
Diagnostic Center, i.e., Doctors Diagnostic Center is not in itself a nuisance, although a
mistake had been committed by the aforesaid Diagnostic Center while reporting about the
result of blood test of patient Ms.Kirti. By the running of the aforesaid hospital and
Diagnostic Center, there is no imminent danger to the physical comfort of the
community at large. The trade/profession of the petitioners, by itself is not
causing any injury/danger or nuisance to the public or people in general who have
property in the vicinity. The acts of the petitioner in exercise of their profession does
not per-se amount to nuisance. The grievance of informant/complainant Sh. Sushil
Kumar is more in the nature of a private dispute. Any likelihood of such a mistake in
future will not fall within the ambit of section 133 Cr. P.C. To attract the provision of
section 133 Cr. P.C., nuisance has to be in existence and not a potential nuisance. It is well
settled that a lawful trade or profession ought not to be interfered with unless it is proved to
be injuries to the health or physical comfort of the community. In the impugned order dated
08-10-2015, it has not been specified as to what "necessary clearance" is required to be
obtained by the petitioners from the Health Department, Govt. of NCT of Delhi or as to how
the case was covered within the ambit of section 133 Cr.P.C.‖

Analysis and inferences from the above cases

The limitations of section 133 Cr.P.C dealing with public nuisances under criminal law can
be drawn as follows:

The proceedings under Section 133 Cr.P.C are just to maintain peace and tranquility
and the orders rendered under these sections are merely temporary orders.

Under Section 133 no action seems possible if the nuisance has been in existence for a
long period. In that case the only remedy open to the aggrieved party is to move the civil
court.

Any order made under section 133 of the Criminal Procedure Code, 1973 is to meet
with emergency situation and provides remedies such as removable of nuisance or prohibition
of nuisance by stopping it. Hence, it nowhere provides damages (compensation) for the
nuisance caused to the victim.

118
3.4.2- Cases dealing with Public Nuisance under Code of Civil Procedure (C.P.C)

The remedies of removal of nuisance or injunctions are available under Section 91 of C.P.C
and the study of the following cases would help to understand the applicability of this
provision further.

In Parameswaranvs Bangalore MahanagaraPalike 160, Karnataka High Court while disposing

the matter of public nuisance caused to the petitioner due to unauthorised construction on
pavement held that ‗Section 91 of C.P.C clearly indicates that, in a case where no special
damage is caused to the person concerned by reason of other person's wrongful act or public
nuisance in respect of a public property, the suit can be filed either by the Advocate General
or two or more persons with the permission of the Court. It means where no special damage
is alleged and proved or shown to have been caused by a wrongful act or by an act of some
amounting to public nuisance of an individual, suit under Section 91 can be filed and be
maintained in case of public nuisance by two persons or more with the permission of the
Court. But if special damage or loss is alleged and proved as well in matters relating to
public nuisance the plaintiff's suit is maintainable and the suit is, on proof of case pleaded,
entitled to be decreed.‘161

In Mohinder Singh vsSurmukh Singh And Others162, High Court of Punjab and Harayana
made the following observations on section 91 of C.P.C:

―Section 91 of the Code of Civil Procedure is an enabling provision. Under Section 91(1) of
the Code of Civil Procedure, the scope of locus standi to file a suit had, in fact, been enlarged.
Even persons to whom special damage had been caused on account of a wrongful act or
public nuisance may institute a suit upon complying with the conditions stipulated in Section
91(1) of the Code of Civil Procedure. However, such provisions cannot be construed to
restrict the right of a person to file a suit in view of a wrong cause independently of such
provision.‖163

Further, the scope of Section 91 of the Code of Civil Procedure was considered by the same
Court in Satnam Singh v. Smt.Jondo164, and it was held as under:

160
ILR 1994 KAR 2972
161
Parameswaranvs Bangalore MahanagaraPalike, ILR 1994 KAR 2972
162
RSA No.3554 of 2011
163
Mohinder Singh vsSurmukh Singh And Others, RSA No.3554 of 2011
164
2011(1) Civil Court Cases 86 available at: https://indiankanoon.org/doc/1134493/ (Last visited on 24.07.18)

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"I have carefully considered the aforesaid contention, but find no merit therein, although
apparently the contention sounds very forceful. Section 91(1) CPC is an enabling provision
and it had enlarged the scope of locus standi to file a suit. Normal rule of law is that a
person, having right or being effected by a wrongful act of the opposite party, had locus
standi to file the suit. However, under Section 91(1) CPC, even persons to whom no special
damage had been caused by the public nuisance or other wrongful act, may also file the suit
by complying with the conditions stipulated in Section 91(1) CPC. However, this provision
does not, in any manner, restrict the right of a person, who independently of this provision,
had right or locus standi to file the suit in view of wrong caused to him. This fact is made
further clear by Section 91(2) CPC, which provides that nothing in this Section shall be
deemed to limit or otherwise affect any right of suit, which may exist independently of its
provisions. The net result of Section 91 CPC is that a person otherwise having right to file a
suit may do so and nothing in Section 91 CPC would affect his said right. However, in the
case of public nuisance, two or more persons, with the leave of the Court, may also file suit,
although no special damage had been caused to them by the public nuisance or other
wrongful act. Thus, Section 91 CPC is an enabling provision enlarging the scope of locus
standi to file the suit, but it does not, in any manner, inhibit or restrict the right or locus
standi of a person to file the suit, which exists independently of the provisions of Section 91
CPC."

In Surinder Singh vsPritam Singh AndOrs165, the High Court of Punjab And Haryana At
Chandigarh made the following observations:

―In the instant case having resorted to the process of Section 133 Cr.P.C., the suit came to be
filed later on because provisions in terms of Section 133 Cr.P.C are of emergency nature.
Existing nuisance cannot be made subject matter of Section 133 Cr.P.C. proceedings,
therefore, a regular remedy was maintainable and that can only be in the form of seeking
injunction. Even as per the statement of DW3, the workshop was started by the defendant on
1.1.2003 and the witness did not know as to what provision was made by the defendant for
disposal of dirty water. However, he admitted that there is no sewerage system in the locality.
The suit itself came to be filed on 7.1.2003, therefore, permanent injunction is the
appropriate remedy which could have been resorted to by the plaintiffs in seeking restraint
against such installation which was in offing at the relevant time. Even the

165
RSA-3025-2010 (O&M) decided on 21.12.2015

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application in terms of applicability of Section 91 CPC is not mandatory in nature in
terms of Section 91 (2) CPC. A public nuisance can be remedied at the instance of the
inhabitants of the locality which have their own right of suit independently of
provision in terms of Section 91 CPC......... Plea of Section 91 CPC has been raised for the
first time in appeal. Even if the suit could have been filed by the Advocate General or by the
two or more persons even though no special damage has been caused to them by reasons
of such public nuisance, sub- Section (2) of Section 91 fully provides that nothing can affect
any right of suit of any person which may exist independently of the provision of Section 91
CPC. ‖

In a very recent case of M/S.AdaniWilmar Ltd vsMr.A.S.Hansraj166, Hon‘ble Madras High

Court made an important observation regarding the scope and interpretation principle of
section 91 of CPC, which is as follows:

―The scope of a suit filed under Section 91 CPC by the very language used in the provision
gives very wide amplitude. A plain reading of the Section would go to show that in case of a
‗public nuisance‘ or ‗other wrongful acts‘ affecting, or likely to affect the public, false within
the scope of Section 91(1) CPC. The word ‗other‘ also assumes significance as it clearly
drawn a distinction from the word ‗public nuisance‘. Similarly the words ‗likely to affect‘
taken within its sweep will include any possible act in future. Thus, the overwhelming factor
is that of public interest. This is once again made clear by dispensing with the personnel
injury termed ‗special damage‘. Two or more persons can file a suit on this nature with the
leave of the Court even though no special damage had been caused to such persons by reason
of such ‗public nuisance‘ or ‗other wrongful acts‘. In our considered opinion, even an
advertisement which is likely to affect the public at large can fall within the scope of Section
91 CPC. Taking into consideration the intention of the legislature enabling the filing of a suit
by any two persons, after getting the leave of the Court, whenever any act causes ‗public
nuisance‘ or ‗other wrongful acts' affecting or likely to affect the public and also taking into
consideration the wide amplitude of the language used under Section 91 CPC, this Court
cannot give a restricted meaning as sought to be projected by the learned senior counsel for
the appellants. The provision of Section 91 CPC is an important tool for remedying the
grievances of a large number of individuals who cannot file independent suits. Such an

166
Appeal No.251 of 2017

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important right guaranteed under the said provision cannot be defeated by giving it a
restrictive interpretation.‖167

Analysis and inferences of the above cases

From the above cases where while deciding the matter the Courts discussed the scope and
purpose of Section 91 C.P.C, the researcher can draw the following inferences:

Where no special damage is alleged and proved or shown to have been caused by a
wrongful act or by an act of some amounting to public nuisance of an individual, suit under
Section 91 can be filed and be maintained in case of public nuisance by two persons or more
with the permission of the Court.

If special damage or loss is alleged and proved as well in matters relating to public
nuisance the plaintiff's suit is maintainable and the suit is, on proof of case pleaded, entitled
to be decreed.

Section 91 of CPC only deals with procedural provisions and puts no bar on
alternative remedies available under criminal law or civil law.

Any claim for public nuisance made under this section by a class representation only
paves way to file civil claims, which in turn provides for damages which are ex-gratia in
nature.

Thus, it can be concluded that undoubtedly section 91 of CPC had gradually emerged to be
an important tool to remove the public nuisances by issue of mandatory orders and
injunctions. But it still never can be a substitute for exemplary remedies that are possibly
available by opting for private law in for public nuisances as well.

3.4.3- Cases dealing with Public Nuisance under Public Interest Litigation (P.I.L)

Public Interest Litigation by large had become a choice against public nuisances caused
mainly due to environmental pollution. But by observing the following landmarks judgments,
the researcher makes an attempt to analyse if Public Interest Litigation is the only option to
grant the victims with the remedies in the form of compensation that they actually deserve.

167
M/S.AdaniWilmar Ltd vsMr.A.S.Hansraj, Appeal No.251 of 2017, Before Madras High Court, available at:
https://indiankanoon.org/doc/135126044/ (Last visited on 12.06.18)

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Indian public interest litigation frequently centers on the issuance of broad writs of
mandamus or other equitable relief that require governmental agencies to take actions to halt
or alleviate violations of fundamental constitutional rights. Some of the landmark and also
recent cases are discussed below:

3.4.3.1- Evolution of Principle of Absolute Liability

M.C. Mehta vs. Union of India 168, is one of the first cases where PIL was used against
environmental pollution. The fact in brief is that Shriram Food and Fertilizers Industry a
subsidiary of Delhi Cloth Mills Limited was producing caustic and chlorine. On December
4th and 6th 1985, a major leakage of petroleum gas took place from one of the units of
Shriram Food and Fertilizers Limited in the heart of the capital city of Delhi which resulted in
the death of several persons that one advocate practicing in the Tis Hazari Courts died.

The leakage was caused by a series of mechanical and human errors. This leakage resulted
from the bursting of the tank containing oleum gas as a result of the collapse of the structure
on which it was mounted and it created a scare amongst the people residing in that area.
Hardly had the people got out of the shock of this disaster when, within two days, another
leakage, though this time a minor one took place as a result of escape of oleum gas from the
joints of a pipe. Shriram Foods and Fertilizer Industries had several units engaged in the
manufacture of caustic soda, chlorine, hydrochloric acid, stable bleaching powder, super
phosphate, vanaspati, soap, sulphuric acid, alum anhydrous sodium sulphate, high test
hypochlorite and active earth. All units were set up in a single complex situated in
approximately 76 acres and they are surrounded by thickly populated colonies such as
Punjabi Bagh, West Patel Nagar, Karampura, Ashok Vihar, Tri Nagar and Shadtri Nagar and
within a radius of 3 kilometres from this complex there is population of approximately 2,
00,000.

On 6th December, 1985 by the District Magistrate, Delhi under Section 133(1) of Cr.P.C,
directed Shriram that within two days Shriram should cease carrying on the occupation of
manufacturing and processing hazardous and lethal chemicals and gases including chlorine,
oleum, super-chlorine, phosphate, etc at their establishment in Delhi and within 7 days to
remove such chemicals and gases from Delhi. At this juncture M.C.Mehta moved to the

168
AIR 1987, SC 1086

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Supreme Court to claim compensation by filing a PIL for the losses caused and pleaded that
the closed establishment should not be allowed to restart.

The Supreme Court delivered its judgement on the 19th of December 1986 and on the basis
of absolute liability deemed Shriram responsible for the accident and resultant compensation
of the victims. The court also instructed Shriram to comply with all the recommendations of
the NilayChoudhary and Manmohan Singh Committees and issued a strict notice that failure
to do so will result in the immediate closure of the plant. The court also instructed the
victims of the Oleum gas leak to file their complain for compensation in the Tis Hazari lower
court of Delhi.

3.4.3.2- Cases on Polluters Pay Principle

In Rural Litigation and Entitlement Kendra vs. State of U.P169, the Supreme Court prohibited
continuance of mining operations terming it to be adversely affecting the environment.

In landmark case Vellore Citizens' Welfare Forum vs. Union of India 170, the Supreme Court
allowed standing to a public spirited social organization for protecting the health of residents
of Vellore. In this case the tanneries situated around river Palar in Vellore (T.N.) were found
discharging toxic chemicals in the river, thereby jeopardising the health of the residents.
The Court asked the tanneries to close their business.

In Church of God (Full Gospel) in India vs. KKR Majestic Colony Welfare Association171,
the questions involved were that in a country having multiple religions and numerous
communities or sects, whether a particular community or sect of that community can claim
right to add to noise pollution on the ground of religion? Whether beating of drums or
reciting of prayers by use of microphones and loudspeakers so as to disturb the peace or
tranquility of neighbourhood should be permitted? The facts of the case in brief was that a
petition was filed by Majestic Colony Welfare Association stating therein that prayers in
the Church of God (Full Gospel)were recited by using loudspeakers, drums and other sound
producing instruments which caused noise pollution thereby disturbing and causing
nuisance to the normal day life of the residents of the said colony. In this matter the learned
Single Judge referred to other decisions and directed respondent Nos.5 and 6 to follow the
guidelines issued in AppaRaos case and to take necessary steps to bring down the noise level

169
AIR 1985 SC 6522
170
AIR 1996 SC 2715
171
AIR 2000 SC 2773

124
to the permitted extent by taking action against the vehicles which make noise and also by
making the Church to keep their speakers at a lower level. Against this order an appeal was
made before the Supreme Court which was dismissed.172

3.4.3.3- Cases on Nuisances due to Environmental Pollution

In another case M.C. Mehta vs. Union of India 173, the Supreme Court held that air pollution
in Delhi caused by vehicular emissions violates right to life under Art. 21 and directed all
commercial vehicles operating in Delhi to switch to CNG fuel mode for safeguarding health
of the people.174

In Common Cause (A Regd. Society)vs Union Of India And Others 175, the Apex Court held
that ‗public interest litigation which was conceived and created as a judicial tool by the
courts in this country for helping the poor, weaker and oppressed sections of society, who
could not approach the court due to their poverty, had over the years grown and grown, and
now it seems to have gone totally out of control, and had become something so strange and
bizarre that those who had created it probably would be shocked to know what it had
become.‘

In this case the petitioner had referred to the rising number of road accidents in the country
which are taking place in cities, towns and on national highways causing deaths, injuries etc.
The petitioner had referred to the defects in the licensing procedure, the training of drivers,
and the need for suspending licences in case of negligent driving, and driving under the
influence of alcohol, which cause accidents etc. He had also referred to the inadequate
infrastructure relating to roads and inadequate provisions of traffic control devices including
traffic signals, traffic signs, road devices and other road safety measures. It had been stated in
the petition that there should be proper and continuous coordination between various
authorities which are connected with roads and control of traffic, and for this purpose the
only appropriate remedy is to establish Road Safety Committees. The petitioner had also
emphasized the need for having readily available ambulances for shifting the injured persons
in road accidents to hospitals for immediate treatment. The petitioner had also stated that
there should be road safety education for the users of roads, pedestrians, traffic participants
including cyclists, handcarts men, bullock- cart drivers etc., who generally have low socio-

172
Vellore Citizens' Welfare Forum vs. Union of India, AIR 1996 SC 2715
173
AIR 2001 SC 1948
174
M.C. Mehta vs. Union of India, AIR 2001 SC 1948
175
Writ Petition (civil) 580 of 2003

125
economic and educational background and do not know traffic rules and regulations. The
petitioner had alleged that pedestrians and non- motorized traffic face enormous risks as they
account for 60% to 80% of road traffic fatalities in the country. All non-motorized traffic
need to be given thorough and repeated orientation in observance of road traffic rules and
avoidance of any situations which can cause accidents. These road safety education
programmes can include written material for those who are literate and also illustrations,
slides, specially prepared films, and also publicity though the medium of TV and radio. The
petitioner had also alleged that there is a paramount need for enactment of a Road Traffic
Safety Act to lay down regulations dealing with specific responsibilities of drivers, proper
maintenance of roads and traffic- connected signs and signals etc., and all rules and
regulations for observance by all concerned including pedestrians and non-motorized
traffic. The Road Traffic Safety Act should contain all the regulations and the requirements
relating to avoidance of accidents, responsibilities of respective Departments of State
Governments, Municipal bodies, Police authorities, and the penalty for non-observance of
prescribed regulations. The Act should specify the duties, responsibilities, rights, directives
and punishments in case of failures by any one e.g. driver, vehicle, road user, etc.

The Apex Court while dismissing the PIL made an observation that ‗These are instances of
judicial excessivism that fly in the face of the doctrine of separation of powers which has
been broadly (though not strictly), envisaged by the Constitution vide Divisional Manager,
Aravali Golf Club &Anr. vs. Chander Hass &Anr. JT 2008 (3) SC 221, AsifHameed vs. State
of Jammu & Kashmir JT 1989 (2) SC 548 etc. In other words, while expansion of the
meanings of statutory or constitutional provisions by judicial interpretation is a legitimate
judicial function, the making of a new law which the Courts in this country have sometimes
done, is not a legitimate judicial function. The Courts of the country have sometimes clearly
crossed the limits of the judicial function and have taken over functions which really belong
either to the legislature or to the executive. This is unconstitutional. If there is a law, Judges
can certainly enforce it. But Judges cannot create a law by judicial verdict and seek to
enforce it.

Moreover, it must be realized by the courts that they are not equipped with the skills,
expertise or resources to discharge the functions that belong to the other co- ordinate organs

126
of the government (the legislature and executive). Its institutionalequipment is wholly
inadequate for undertaking legislation or administrative functions.‘176

In PoovakkulamParishithy ... vs The State Of Kerala 177, the petitioners' grievance was against
the functioning of quarries and crusher units operated by respondents. They alleged that the
functioning of the quarries and crusher units caused nuisance and damage to their families
and public. The nuisance alleged was twofold - one being the plying of trucks carrying the
products from the quarry and crusher units, through the village roads; and the second being
blasting and other operations of the units. The Court while dismissing the petition held that
‗The petitioners essentially are canvassing their individual grievances, which may, at the
most, be the grievance of an ascertainable group of people and that too against the
activities carried on by named respondents allegedly in violation of statutory rules and
regulations. We are afraid, the same does not constitute a "PIL" and it is for the petitioners to
ventilate their individual grievances before the appropriate forum, individually or as a group.
Every right that could be sought to be protected under Article 226 of the Constitution of
India does not become a public interest merely because a group of people are involved.
Administrative defiance representing callous indifference to statutory provisions do not at all
stages give rise to a public interest, though it may affect many. Nor is there any averment that
the persons who are affected are of the weaker and marginalized section of the society and
that by their status in life, both economic and social, they are deprived of access to legal
remedies.‖178

In Rajendra Kumar Vermavs The State Of M.P. And Ors. 179the petitioner was a well- known
social worker and was actively associated with many NGOs fighting for the cause of human
dignity, civil liberty and social justice. He had filed the public interest petition for direction to
the State Authorities to prevent the environmental noise pollution caused during the festive
seasons, religious and social ceremonies spread over the year, by use of various sound
amplifiers and other devices besides the noise pollution by factories, trains and aeroplanes.
Further direction was sought to prevent other atrocities committed on the society in the name
of religious festivals such as (a) traffichazards by putting Pandals on busy streets (the number
proliferating each year) in an indiscriminate manner, (b) theft of electricity with impunity for

176
Common Cause (A Regd. Society) vs Union Of India And Others, Writ Petition (civil) 580 of 2003 available at
https://indiankanoon.org/doc/1670134/
177
W.P.(C).No.5727 of 2013 (S)
178
PoovakkulamParishithy ... vs The State Of Kerala, W.P.(C).No.5727 of 2013 (S)
179
2015 (2) MPLJ 120

127
lighting and decoration of Pandals, resulting in loss to public exchequer and (c) extortion and
intimidation of public by unscrupulous elements in the name of donation for the Pandals.

The Hon‘ble High Court of Madhya Pradesh disposed of the petition with certain
observations. As regards the use of loudspeakers at any religious place or premises where
it is being used as a tradition, the sound level restrictions provided under the Central
Legislation will have to be adhered to without any exception. .....The State Authorities,
however, shall not grant permission/licence for use of sound producing instruments beyond
the permissible limits and also ensure that any violation of the Central Rules of 2000 should
be proceeded strictly and in accordance with law.‘ The Court also held that ‗when any
application for permission to put up a Pandal on a busy street is received, that must be
considered with utmost circumspection and should not be granted mechanically. The
competent Authority, before granting permission, must keep in mind the extant Regulations
and must consider all aspects including the period for which the Pandal will be put up, the
likelihood of any inconvenience to public and in particular obstruction to smooth traffic flow
and also about the security and safety of the nearby (2009) 15 SCC 351 (2004) 13 SCC
61 W.P. No.4792/2005 (PIL) residents,

pedestrians and vehicle operators......that if violation of noise levels is brought to the notice of
the police, Revenue or Municipal Authorities, they must report that matter to the Electricity
Board with recommendation to disconnect the electricity connection forthwith. In any case,
all the duty-holders must work in tandem to ensure that the nuisance caused on account of
such noise pollution or because of theft of electricity is not ignored, but proceeded against
the members of the Committee individually and vicariously in accordance with law - for
recovery of damages /compensation for such unauthorized activity, in addition to criminal
action.‘180

In SmtSumithravs The State Of Karnataka181, the petitioner was before High Court invoking
its extraordinary jurisdiction under Article 226 of the Constitution of India. The petitioner
alleged that the respondent have unauthorisedly opened a shop selling pooja items in front of
Sri Lakshmi Narasimha Temple, Balepet and the said action is causing nuisance to the
general public. The petitioner had produced along with this writ petitioncopies of her
representation made to the Commissioner, Hindu Religious and Endowment Department,

180
Rajendra Kumar Vermavs The State Of M.P. And Ors., 2015 (2) MPLJ 120
181
W.P.No.9584/2018

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stating that the petitioner was doing business of selling pooja items in the same premises for
the past few years.

The Court held that ‗the extraordinary jurisdiction of public interest litigation is meant for
redressal of causes of public at large and not for resolution of individual disputes. This Court
is convinced that the instant petition is filed for settling personal scores between the petitioner
and respondent Nos.6 and 7. Hence, the petition deserves to be dismissed with exemplary
costs.‘182

3.4.3.4- Violation of an environmental norm automatically does not results in

environmentaldamage

Further there are certain recent judgements where the Supreme Court has shown less
willingness to assume that any violation of an environmental norm automatically results in
environmental damage or requires a judicial response. Such as:

In Deepak Nitrite Ltd. v State of Gujarat 183, appeals arise out of a series of orders made by
the High Court of Gujarat. A petition was filed before the High Court in public interest
alleging large scale pollution caused by industries located in the Gujarat Industrial
Development Corporation (GIDC) Industrial Estate at Nandesari. It is alleged that effluents
discharged by the said industries into the effluent treatment project had exceeded certain
parameters fixed by the Gujarat Pollution Control Board (GPCB) thereby causing damage to
the environment. Some of the industries have set up their own effluent treatment plants in
their factory premises, while some of them have not. The High Court, by an order made on
17.4.1995, directed that the chemical industries in Nandesari should be made parties to the
proceedings thereby 252 industrial units located in the Nandesari Industrial Estate, Baroda
were made parties to the proceedings, apart from the State of Gujarat, Central Pollution
Control Board, Gujarat Industrial Development Corporation and Nandesari Industries
Association. The High Court also issued notices to the financial institutions or banks in
respect of these proceedings.

On May 5, 1995 the High Court appointed a Committee under the Chairmanship of Dr.V.V.
Modi to ascertain the position with regard to the extent of pollution in Nandesari Industrial
Estate. A Common Effluent Treatment Plant (CETP) was erected by the GIDC in Nandesari

182
SmtSumithravs The State Of Karnataka, W.P.No.9584/2018, (unreported) available at
https://indiankanoon.org/doc/79386038/ (Last visited on 07.03.18)
183
6 S.C.C. 402, 407 (2004)

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Industrial Estate on the contribution made by the industrial units in the Nandesari Industrial
Estate to the extent of about Rs. 300 lakhs. In as much as CETP was not achieving the
required parameters laid down by the GPCB, the High Court, by an order made on 7.8.1996,
appointed NEERI as a consultant to assess the treatment facilities and to provide suitable
rectification measures for upgrading the CETP and effluent treatment plant facilities. Dr.
Committee made a report on 7.9.1996. The High Court restrained several industries from
removing their products from their plant without prior permission of the High Court and
thereafter, by an order made on 13.9.1996, the High Court permitted them to dispatch
materials by depositing a certain sum of money which was the value of the materials. NEERI
submitted its report on 31.10.1996. The High Court, while granting permission to some of the
industries to carry on their activities, called for turnover figures and profitability data. On
9.5.1997 the High Court passed an order directing the industries to pay 1% of the maximum
annual turnover of any of the preceding three years towards compensation and betterment of
environment within a stipulated time. Against this order an appeal was filed before Supreme
Court.

The Apex Court disposed the matter with the following observations:

―The fact that the industrial units in question have not conformed with the standards
prescribed by GPCB cannot be seriously disputed in these cases. But the question is whether
that circumstance by itself can lead to the conclusion that such lapse has caused damage to
environment. No finding is given on that aspect which is necessary to be ascertained because
compensation to be awarded must have some broad co-relation not only with the magnitude
and capacity of the enterprise but also with the harm caused by it. May be, in a given case
the percentage of the turnover itself may be a proper measure because the method to be
adopted in awarding damages on the basis of 'polluter to pay' principle has got to be practical,
simple and easy in application. The appellants also do not contest legal positions that if there
is a finding that there has been degradation of environment or any damage caused to any of
the victims by the activities of the industrial units certainly damages have to be paid.
However, to say that mere violation of the law in not observing the norms would result in
degradation of environment would not be correct.

Therefore, we direct the High Court to further investigate in each of these cases and find out
broadly whether there has been any damage caused by any of the industrial units by their
activities in not observing the norms prescribed by the GPCB as reported by the Modi

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Committee appointed by the High Court or by an expert body like NEERI and that exercise
need not be undertaken by the High Court as if the present proceeding is an action in tort but
an action in public law. A broad conclusion in this regard by the High Court would be
sufficient. We, therefore, direct the High Court to re-examine this aspect of the matter as to
whether there is degradation of environment and as a result thereof any damage is caused to
any victim, and what norms should be adopted in the matter of awarding compensation in that
regard. In this process it is open to the High Court to consider whether 1% of the turnover
itself would be an appropriate formula or not as applicable to the present cases.‖ 184

Analysis of the above cases

From the above cases the inferences which can be drawn regarding the limitations of PIL
when compared to prospect of better remedies in terms of compensation under tort law are as
follows:

Public Interest Litigation has been mostly used till date only against those public
nuisances which degrades the environment causing pollution. As PIL can be filed only in
event of infringement of fundamental right.

Remedies under PIL are mostly in the form of some mandatory orders to stop the
nuisance and follow directions to prevent any future nuisance.

The compensation awarded by PIL is only limited to repair the damages caused to the
victims at large.

The gravity of individual damage is mostly ignored under Public Interest Litigation.

Hence, it can be inferred from these various cases that though PIL hands over certain power
to general public to curb public nuisances mostly in the form of environmental pollution, but
still the remedies provided are not with the view of putting the victims to their original
position but mostly to prevent the nuisances.

To sum up, this chapter with the help of some important and landmark judgements has
highlighted the gaps such as uncertainties, ambiguities, limitation of remedies and absence of
proper adjudicating authorities along with a well comprehensive legislation in deciding
tortious liabilities in India. In the concluding chapter, the researcher has made an attempt to

184
Deepak Nitrite Ltd. v State of Gujarat, 6 S.C.C. 402, 407 (2004)

131
examine the chances of getting alternative and better remedy in the above cases had there
been a codified tort law to deal with the respective tortious liabilities.

132
 CHAPTER 4

CONCLUSION AND SUGGESTIONS

4.1 Conclusion-

In this research work the researcher intended to study the tort law in India with limiting the
study to State liability, Product Liability and Public Nuisance Litigation. This research was
done with the following objectives-

1. To study and examine the existing Indian mechanism dealing with determination of
rights, liabilities and remedies for Public Nuisance under law of tort.
2. To determine whether the Councils and Redressal Forums constituted under the
Consumer Protection act, 1986 to adjudicate and provide remedy for product liability
under Indian Tort system have sufficient and independent authority.
3. To examine the scope and ambit of the Tort Law to deal with disputes and liabilities
related with civil wrongs seeking unliquidated damages and also includes the study of
Tort laws of United Kingdom, United States of America and China on the same.
4. To find out the legal position of the laws dealing with civil wrongs and liability of the
Sovereign and to examine if they provide a sound comprehensive legislation to
encourage litigation under law of Torts in India.
5. To find whether a codified Tort Law would make the State liable for tortious acts.

The researcher to achieve the above mentioned objectives of the study studied the basic
meaning, evolution and general principles of Tort Law in Chapter 1. The researcher made an
attempt in this chapter to represent all the concepts of tort law in brief so that it becomes
easier to analyse the law in latter chapters. While studying the historical evolution of tort law
the researcher could conclude that tort in its nascent form comprised mainly of negligence
cases where there was breach of duty. Tort basically evolved from common law principles of
England which was based on justice, equity and good conscience. Only with few scholarly
publications on ‗private wrongs‘ it was seen that even by the mid of 19th century tort was
considered to be an undeveloped branch of law. It was only after the industrial revolution that

133
tort law had become significant with increased scope and ambit. Principles like strict liability
developed with the famous Ryland v. Fletcher case. Thereafter, with the developments and
advancement of the society in all aspect new concepts like product liability, liability for
medical malpractice, environmental liability, liability for torts in the marketplace, extended
liability of the corporation have developed in tort law. Thus, the first part of the objective
No.3 of this research ‗To examine the scope and ambit of the Tort Law to deal with disputes
and liabilities related with civil wrongs seeking unliquidated damages‘ was achieved by the
researcher.

The researcher in Chapter 2, titled ‗Analysis of Present Tort System in India‘ studied the
development of Indian tort law. The researcher also studied the present laws and legislations
dealing with State liability, Product liability and Public Nuisance in India. The researcher
could infer that the core of Indian tort system is the Common Law Principles of England with
few new developments like the Principle of Absolute Liability. Regarding the situation of
State Liability in India, the researcher could conclude that under ancient Hindu and Muslim
Rulers there was no room for Sovereign Immunity in India. Then under East India Company,
Secretary of the State for India was liable only for sovereign functions and East India
Company was liable like a body corporate. But under the British Government, the doctrine of
‗King can do no wrong‘ with the enactment of the Government of India Act, 1935 was
introduced which granted Sovereign immunity. The researcher found out that under
independent India, there is existence of the application of the doctrine of ‗King can do no
wrong‘ and it depended on the interpretation given by judges of ‗sovereign‘ and ‗non-
sovereign‘ functions. Thereafter, the researcher analyzed two major laws governing product
liability in India, namely, ‗The Consumer Protection Act, 1986‘ and ‗The Sales of Goods Act,
1930‘. After analysing the Consumer Protection Act, 1986, the inference which the
researcher could draw is that the legislation has the following lacunas:

 Alternative Remedies other than compensation prescribed under section 14 of CPA

and compensation in case of negligence only.
 Availability of liability limited clause
 Quasi-judicial authorities and summary procedures
 No Sub-judice bar and No power to review or stay orders
 No Status of ‗court of records‘

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The researcher also analysed the recent Consumer Protection Bill of 2018, which if passed in
the Parliament shall replace the Consumer Protection Act, 1986. The new Bill of 2018 has
specific provisions dealing product liability which was earlier missing and by this bill the
consumer forums have been granted power to review their order. But the researcher has
found the following gaps in the Bill of 2018:

 Consumer Forums are still quasi-judicial authorities

 Violates the Principle of Judicial Independence
 Violates the Principle of Separation of Power
 Uncertainties in Composition and role of the Consumer Protection Councils
 Conflict of Jurisdiction

The gaps which the researcher could find in the Sales of Goods Act, 1930 also dealing with
product liability in India are as follows:

 Remedies are returning of the goods or to claim damages (mostly liquidated)

 Principle of Caveat emptor limits the seller‘s/manufactures‘ liabilities.

In the last part of the chapter, the researcher analysed the laws in India dealing with Public
Nuisance which are The Criminal Procedure Code, 1973 (Cr.P.C), Indian Penal Code (I.P.C),
Code of Civil Procedure (C.P.C) and Constitutional Remedy in the form of Public Interest
Litigation (P.I.L). On analysing the above named legislations, the researcher could conclude
that any order made under section 133 of the Criminal Procedure Code, 1973 is to meet with
emergency situation and provides remedies such as removable of nuisance or prohibition of
nuisance by stopping it. The remedies available under criminal law are only in the form of
penalties and there is no room for any nuisance which might be in existence since long. The
researcher could infer that Section 91 of CPC only deals with procedural provisions and puts
no bar on alternative remedies available under criminal law or civil law which is violative of
the principle of Res Judicata. Further, any claim for public nuisance made under this section
by a class representation only pave way to file civil claims, which in turn provide for
damages which are ex-gratia in nature. Lastly, the researcher inferred that class action under
the concept of tortious liability is allowed by P.I.L in India largely in cases which involve
environmental degradation instead of Public Nuisance Litigation as used in America. The
gravity of individual damage is mostly ignored under Public Interest Litigation.

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The researcher in Chapter 3, titled ‗Precedents and Judicial Pronouncements on Indian Tort
Law‘ has studied and analyzed several judgments in order to determine the actual status of
the various laws and regulations on State liability, Product liability and Public Nuisance in
India. The inferences that were drawn are as follows:

Summary of Inferences that can be drawn after the analysis of the cases:

The researcher in order to analyse the development of laws on State liability analysed some
important and landmark judgements in three parts, namely, State Liability in Pre-independent
India, in Independent India and finally in Present India. The researcher could make the
following inference:

a) Under the British Rule the doctrine of ‗King can do no wrong‘ was absolutely
applicable in deciding cases where liability of the State had to decided for tortuous
wrongs committed by the employees or servants of the State.
b) Post Independence the State was held liable in those cases only where the tort was
committed while discharging Non-Sovereign functions.
c) From the analysis of later cases it could be inferred that for those torts committed by
State servant that infringed fundamental rights the public law remedy of granting ex-
gratia compensation by writs was encouraged and permitted. But the doctrine of
Sovereign immunity still was uncertain and existed while seeking remedies under
private law.
d) The recent judgements indicate that even though the approach of the Indian Courts are
to grant compensation to the victims for torts committed by the servants of the State
by establishing the State liable for infringement of fundamental rights but it also
suffers from uncertainties in absence of any express provisions.
e) Then, the researcher analysed cases dealt under The Consumer Protection Act, the
primary legislation that deals with Product liability, although the existing legislation
nowhere expressly defines product liability. The researcher has inferred that the
legislation suffers from some loopholes which are summed up below:
f) Conflict of Jurisdiction- Consumer Protection Act which is a general law to protect
interest of consumers often suffers from conflict of jurisdiction with other specific
statutes like Sales of Goods Act, Motor Vehicle Act, Railway Tribunal Claims Act
etc.

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g) No Sub-Judice Bar- Section 3 of the Consumer Protection Act makes this Act in
addition to and not in derogation of any other law. While interpreting this section the
Apex Court has held that ‗the remedies provided under the CP Act are in addition to
the remedies provided under other statutes‘ and that ‗.....the said Act supplements and
not supplants the jurisdiction of the civil courts or other statutory authorities‘. It
means that filing of a suit before consumer forum does not act as sub judice bar on
filing on same cause of action in a civil court. This often leads to duplicity of
proceedings and multiplicity of litigation on same cause of action.
h) Remedies restricted to Section 14- This means that if an aggrieved party files a suit
claiming an unliquidated damage under CPA which is the essential attribute of tort
law, then the authorities have number of alternatives to substitute the relief claimed.
Secondly, according section 14, compensation can be awarded for the loss or injury
suffered by the victim only if there is negligence on the part of the defendant.
i) Availability to limit the liability by clauses- Product liability under CPA is very much
influenced by contractual liability. The limit of damages depends upon the terms of
the contract and facts in each case.
j) Limitations of Quasi-judicial Redressal Forums- TheRedressal agencies under CPA
being a quasi-judicial forum suffers from limitations like it can try only those matters
which are of summarily nature. Cases where huge amount of evidences is required the
forums are not considered to be appropriate authorities to decide the matters. Hence,
the Consumer Dispute Redressal Agencies falls short of jurisdiction if the matter
cannot be decided summarily.
k) Lack of inherent power- since the forums set under CPA are quasi-judicial bodies and
are not court, they cannot have any inherent powers. The redressal agencies under
CPA lack power to review or recall order and nowhere they are declared as the
‗Courts of Record‘, nor is there any provision, which invests these higher consumer
forums with precedent creating power.
l) Rigid compliance for Class action suits- Class action suits under CPA are only
permitted on the fulfilment of all the requisite conditions in terms of Section 12(1)(c)
of the Consumer Protection Act read with Order I Rule 8 of the Code of Civil
Procedure . Thus, making class action difficult under CPA.
m) Strict interpretation by the forums- it is only after the intervention of the Apex Court
that the deserved liberal interpretation is made, CPA being a beneficial legislation
which is often not done by the forums.

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 n) Hence, it can be concluded that the Consumer Protection Act which deals with
Product Liability in India has some inherent defects and gaps that need to be plugged.
A well comprehensive legislation is needed.

In the last part of the Chapter, the researcher has studied and analysed cases on Public
Nuisances and could drawn the following inferences:

a) The proceedings under Section 133 Cr.P.C are just to maintain peace and tranquility
in emergency situations and provides no remedy if the nuisance has been in existence
for a long period. It nowhere provides damages (compensation) for the nuisance
caused to the victim.
b) x Section 91 of CPC had gradually emerged to be an important tool to remove
the public nuisances by issue of mandatory orders and injunctions. But it still never
can be a substitute for exemplary remedies that are possibly available by opting for
private law in for public nuisances as well.
c) x Remedies under PIL are mostly in the form of some mandatory orders to stop
the nuisance and follow directions to prevent any future nuisance. The compensation
awarded by PIL is only limited to repair the damages caused to the victims at large.
The gravity of individual damage is mostly ignored under Public Interest Litigation.

At the end of the analysis made by the researcher in this chapter, it can be well assumed that
tort law in India dealing with State Liability, Product Liability and Public Nuisance definitely
needs some changes and improvements to achieve a more subtler way for determining the
liabilities to provide remedies in the form of compensation under tort which is a sign of a
developed legal framework of any modern country.

Conclusions drawn on the Hypothesis

Lastly, on the basis of the above discussion and inferences the researcher has drawn
conclusions on the Hypothesis of this research work as follows:

 Hypothesis No. 1: Whether the law of torts in India presently, is mainly the English
law of torts based on the principles of the common law of England and being

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 modelled on the pre-independent British model it remains in a nascent and
underdeveloped stage.
The said Hypothesis has been affirmed by the inferences drawn in this research study.
 Hypothesis No. 2: Whether Courts continue to award compensation on simplistic
understandings based primarily on the degree of compromise to the earning ability of
the victim or on even more simplistic formulations of negligence?
The said Hypothesis has been affirmed by the inferences drawn in this research study.
 Hypothesis No. 3: Whether lack of a code for the law of torts acts as a deterring factor
for it to branch out as a favoured form of litigation?
The said Hypothesis has been affirmed by the inferences drawn in this research study.
 Hypothesis No. 4: Whether there is lack of definite law to provide remedy against
high tortuous claims in India leaving transnational corporations largely unsupervised?
The said Hypothesis has been affirmed by the inferences drawn in this research study.
 Hypothesis No. 5: Whether there is absence of efficacious remedies and the existing
system suffers from infirmity in cases of product liabilities under Indian Tort Law?
The said Hypothesis has been affirmed by the inferences drawn in this research study.
 Hypothesis No. 6: Whether the principle that is applied in India to determine the
liability of the State in tort suffers from lack of uniformity and a codified Tort Law
would make the State liability for tortious acts subtle?
The said Hypothesis has been affirmed by the inferences drawn in this research study.

Hence, it can be concluded that the tort law in India dealing with State Liability, Product
Liability and Public Nuisance has some inherent defects and gaps which can be possibly
resolved by adopting a well comprehensive legislation, which is definitely the need of time.

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