Tort Question and Answers

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Tort Question and Answers
Law of Torts (Karnataka State Law University)
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1 Tort Law, Raghuraman.K
TORT LAW
L.L.B, 1st Sem, 1st year
Raghuraman.K
[email protected]

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Contents
TORT LAW ............................................................................................................................................... 1
Questions ................................................................................................................................................ 4
UNIT I ...................................................................................................................................................... 8
Q. Essentials of tort. Explain with cases.............................................................................................. 8
Q. Describe the term “ubi jus ibi remedium”. .................................................................................. 10
Q. How far Motive and malice are relevant in an action for tort ? .................................................. 11
Q. How is intention relevant to torts ? ............................................................................................. 11
Q. Is it law of tort or law of torts ? .................................................................................................... 15
Q. What is pigeon hole theory ? ...................................................................................................... 15
Q. How law of torts is different from crime ...................................................................................... 17
Unit II..................................................................................................................................................... 18
Q. What are the general defences against tort ?.............................................................................. 18
Q. What do you mean by vicarious liability in Tort? Whether a master is liable for committing
fraud, theft by his servant during course of employment? .............................................................. 23
Q. What do you mean by vicarious liability? Explain with decided cases. ....................................... 23
Unit III.................................................................................................................................................... 29
Q. What is negligence ? Discuss important features of negligence with cases. ............................... 29
Q. What do you understand by the expression `Nuisance' ? what are kinds of nuisance ?
Distinguish between Public and Private Nuisance ............................................................................ 32
Q. Distinguish between nuisance and trespass ................................................................................ 38
Q. What is a strict liability tort ? ....................................................................................................... 39
Q. Short notes on malfeasance, misfeasance, and nonfeasance ..................................................... 41
Q. What is absolute liability tort ? .................................................................................................... 41
Q. Write short notes on Volenti Non fit Injuria (Consent or Leave and Licence) ............................. 43
Q. Short notes on Res ipsa Loquitor ................................................................................................. 46
Q. What are legal remedies and measure of damages ? .................................................................. 47
Q. What are the different type of damages ? ................................................................................... 47
Q. What is remoteness of damage. Explain with cases .................................................................... 52
UNIT IV .................................................................................................................................................. 54
Q. Write about false imprisonment ? ............................................................................................... 54
Q. Short notes in Assault and Battery ............................................................................................... 58
Q. Battery .......................................................................................................................................... 60
Q. Explain the tort of defamation with examples ............................................................................. 61

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Q. What do you understand by the expression `Malicious Criminal Prosecution' ? What facts have
to be proved by plaintiff for claim damages for `Malicious prosecution." ? .................................... 65
Q. What is difference between "Malicious Prosecution" and "False imprisonment" ? ................... 65
Q. Trespass to land or property ........................................................................................................ 68
Q. Short notes on Conversion ........................................................................................................... 70
Q. Short notes on Actio personalis moritur cum persona ................................................................ 74
UNIT V : ................................................................................................................................................. 77
Q. Define consumer as per Consumer Protection Act ...................................................................... 77
Q. Short notes on .............................................................................................................................. 79
Q.What are the salient features of Consumer protection Act, 1986 ? ............................................. 81
Q. What is deficiency in service ? ..................................................................................................... 84
Q. What are the basic consumer rights ?.......................................................................................... 86
Q. Discuss the composition, jurisdiction, and appointment of the .................................................. 88
1. District Commission .................................................................................................................. 88
2. State Commission ..................................................................................................................... 88
3. National Commission ................................................................................................................ 88
Q. Provision related to appeals in the Consumer Protection Act ..................................................... 97
Q. What is a consumer dispute ? ...................................................................................................... 98
Q. What is a Complaint ? .................................................................................................................. 98
Q. Who can file a complaint under CPA Act ? ................................................................................... 99
Q. What is the State Consumer Protection Council ? ..................................................................... 100
Q. What are unfair trade practices under Consumer Protection Act ? .......................................... 102
Q. What are the reliefs available for the consumer under the Consumer Protection Act ? .......... 105
Q. Salient features of the Motor Vehicle Act .................................................................................. 107
Q. What is third party insurance under Motor Vehicles Act, 1988 ? .............................................. 111
Q. What is no fault liability in MVC Act ? ........................................................................................ 117
Q. What are the Defence Available to Insurer under MVC Act ?.................................................... 119
Q. What are the methods for Application for compensation under MVC Act? ............................. 121

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Questions
Q. 1 What do you understand by "Tort" ? Can you give a comprehensive definition of Tort ?
Discuss essential characteristics of Tort.
Q. 2 Distinguish between Tort, Crime and Contract.
Q. 3 "Real significance of legal damage is illustrated by two maxims - "Injuria sine damnum"
(injury without damage) "Damnum sine injuria" (damage without injury) - Discuss.
Or
What do you understand by the maxims "damnum sine injuria" and "injuria sine damnum" ?
State also the applicability of these maxims ?
Q. 4 Explain the maxim - "Ubi Jus ibi remedium".
Q. 5 What do you understand by "Tortious Liability" ?
Q. 6 Discuss critically the two competing theories with regard to the foundations of
"Tortious liability".
Or
Which of the two competing theories is correct ? Is there a law of tort or law of torts ? :-
(i) all injuries done to another person are tort unless there is some justification recognised
by law.
Or
(ii) There are definite number of torts outside which liability in tort does not exist.
Q. 7 How far Motive and malice are relevant in an action for tort ?
Q. 8 Explain :- (1) Mal-feasance, (2) Mis-feasance, (3) Non- feasance.
Q. 9 Explain the maxim `Volenti nonfit injuria'.
Q. 10 What do you understand by an "Act of God" ? How far is it a valid defence ?
Q. 11 (A) What do you understand by the defence of "Inevitable Accident."
(B) What is difference between "Inevitable accident" and "Act of God"?
Q. 12 Discuss following defences against tortious liability :-
(i) Private defence
(ii) Acts causing slight harm

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(iii) Mistake
(iv) Necessity.
Q. 13 What is Statutory authority ? How far is it a good defence in an action for tort ?
Q. 14 What do you understand by "Legal remedy" ? Discuss the difference between `judicial
remedy' and "Extra judicial remedy".
Q. 15 What do you understand by `Damages' ? What are the various kinds of damages and
define each of them ?
Q. 16 What is an Injunction ? How do you classify it ? Enumerate the classification, if any,

and explain them. When is a temporary injunction granted
Q. 17 Discuss briefly various extra-judicial remedies available in torts ?
Q. 18 Explain the maxim "actis personalis moritur cum persona."
Examine also the exceptions to the rule, if any.
Q. 19 What do you understand by Vicarious Liability ? State the principles on which doctrine
of vicarious liability is based. How does liability in tort arise out of acts or omission of other?
Q. 20 "The Vicarious Liability of Master does not depend on the lawful or unlawful nature of
acts of servant and the master would be liable for alleged act of the servant which had
taken place in course of his employment even though the servant may have acted in
contravention of some provisions of the Law." - Explain and illustrate the above statement.
Q. 21 Under what circumstances a master is not liable for the torts committed by servant ?
Or
What are the exceptions to rule of master's liability to third person ? Discuss.
Q. 22 Can a Government be held liable for damages caused by the negligence of its officer in
performing their duties ?
Q. 23 (A) What do you understand by `Joint Tort-feasors' ? Under what circumstances does
the joint liability arise and what is meant by contribution ?
(B) What are the principles governing contribution between joint-tort feasor ?
Q. 24 Will a release of one of several tort feasors release all the other joint tort-feasors ?
Q. 25 Discuss the principles of Merryweather v. Nixon. How for this principle is applicable in
India."

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Q. 26 Define `Negligence'. Is Negligence a specific tort ? What are conditions of liability for
negligence ?
Q. 27 Discuss the principle of `Standard of Care' in negligence.
Q. 28 Discuss the rule of Burden of proof of Negligence.
Q. 29 Explain the doctrine of `Res ipsa loquitur'.
Q. 30 What do you understand by contributory negligence ? What changes has the recent
legislation affected in Doctrine of Contributory Negligence ?
Q. 31 Define and Explain the term `Trespass To Land. What must be proved by plaintiff to
sue for trespass to land ?
Q. 32 What are the plaintiff's remedies in action for trespass?
Q. 33 Define and explain torts affecting Moveable property.
Q. 34 How do you distinguish Trespass and Conversion ?
Q. 35 What do you understand by the term "trespass to the person with reference to the
law of torts" ? What are its kinds ? Discuss assault and battery.
Q. 36 When does an action lie for assault and battery ? In what circumstances may assault
and battery be justified ? How damages are assessed ?
Q. 37 Define and explain `false imprisonment'.
Q. 38 What do you understand by the expression `Nuisance' ? what are kinds of nuisance ?
Distinguish between Public and Private Nuisance
Q. 39 Discuss the `Rule or Strict Liability' as laid down in Rylands v. Fletcher. What are the
exceptions to law laid down in Rylands v. Fletcher ?
Q. 40 What do you understand by Àbsolute Liability' ? How rule of absolute liability is

different from rule of strict liability ?
Q. 41 Discuss the rule of the liability for dangerous chattels.
Q. 42 Define `Defamation'. What are its kind ?
Q. 43 When slander becomes actionable per se ?
Q. 44 Distinguish between. `Libel' and `Slander'.
Q. 45 What is "Innuendo" ? Explain the rule of Innuendo.

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Q. 46 In a suit filed for recovery of damages for defamation. But no evidence was led to
show the actual damage suffered by the plaintiff. Is the plaintiff still entitled to damages ?
Decide.
Q. 47 What acts are privileged under the law of torts ? Discuss.
Q. 48 What do you understand by the expression `Malicious Criminal Prosecution' ? What

facts have to be proved by plaintiff for claim damages for `Malicious prosecution." ?
Q. 49 What is difference between "Malicious Prosecution" and "False imprisonment" ?
Q. 50 When an action will lie against civil proceeding instituted maliciously and without
reasonable and probable cause?
Q. 51 What do you understand by the term "Abuse of Legal Process"?
Q. 52 What do you understand by "Tort of Mental and Nervous Shock" ?

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UNIT I
Q. Essentials of tort. Explain with cases

Act/omission: To constitute a tort there must be an act, which can either be
negative or positive. There must be some breach of duty to constitute such
wrongful act or omission. It means there was a duty to do or not to do a
certain action, or to behave in a particular manner which a reasonable man is
expected to act under certain circumstances. If a corporation maintains a
children park which has a poisonous plant but fails to put proper fencing. If one
of the children eats a fruit from that tree and dies, then the corporation can be
held liable for such an omission. A person cannot be held liable for social or
moral wrong. For example, if somebody fails to help a starving man then he
cannot be held liable because it is a moral wrong unless some legal duty can be
proved.
Legal Damage: In order to constitute tort, breach of legal duty must be there.
The legal right vested with the plaintiff should have been breached i.e certain
act or omission have resulted in the breach of legal duty. The action can be
instituted if there is a breach of legal right. For the injury sustained by the
plaintiff, damages could be claimed by him. Legal damage could be understood
more clearly with the help of following maxims:
1. Injuria sine damnum: “Injuria” means unauthorised interference with
the right of the plaintiff. “Damnum” means harm or loss suffered in
terms of comfort, money, health etc. When there is violation legal right
without any harm to the plaintiff, the plaintiff can approach the court.
The infringement of private right is actionable per se. What is required
to show is the violation of a right in which case the law will presume
damage. Thus, in cases of assault, battery, false imprisonment, libel etc.,
the mere wrongful act is actionable without proof of special damage.
The- court is bound to award to the plaintiff at least nominal damages if
no actual damage is proved
In Ashby v. White, the plaintiff was detained by the defendant, a
returning officer. The plaintiff was a qualified voter at the parliamentary
election but due to detention, his voting right was violated. The plaintiff
sued the defendant for violation of his legal right. Since there is a right
there is also a remedy available for it.

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Similarly, in Bhim Singh Verses State of J&K, the petitioner, an M.L.A. of

Jammu & Kashmir Assembly, was wrongfully detained by the police
while he was going to attend the Assembly session. Thus, he was
deprived of his fundamental right to personal liberty and constitutional
right to attend the Assembly session. The court awarded exemplary
damages of Rs. Fifty thousand by way of consequential relief.
2. Damnum sine injuria: According to this maxim, there is some injury

caused to the plaintiff without any unauthorised interference to
plaintiff’s legal right. A person cannot claim damages in law even if the
injury is caused due to the deliberate act of the defendant, as long as the
other party is exercising his legal right.
For example, a defendant set up a school exactly in front of the school of
the plaintiff. The plaintiff suffered loss because of the rival school as he
has to lower the fees and many students took admission in defendant’s
school. There is no remedy available for the loss suffered by him. The
defendant has not done anything in excess of his legal right.
There are many forms of harm of which the law takes no account,
(1) Loss inflicted on individual traders by competition in trade,
(2) Where the damage is done by a man acting under necessity to
prevent a greater evil,
(3) Damage caused by defamatory statements made on a privileged
occasion,
(4) Where the harm is too trivial, too indefinite or too difficult of prove.
(5) Where the harm done may be of such a nature that a criminal
prosecution is more appropriate for example, in case of public
nuisance or causing of death,
(6) There is no right of action for damages for contempt of court.
In the case, Bradford Corporation (Mayor of) Verses Pickles, the defendant
was annoyed when Bradford Corporation refused to purchase his land in
connection with the scheme of water supply for the inhabitants of the town. In
the revenge the defendant sank a shaft over his land intentionally and
intercepted the underground water which was flowing to the reservoir of the
plaintiffs. Held, that the plaintiffs have no cause since the defendant was

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exercising his lawful right although the motive was to coerce the plaintiff to
buy his land.
Q. Describe the term “ubi jus ibi remedium”.

The law of tort is said to be the development of the maxim Ubi jus ibi
remedium. The word “jus” means legal authority to do something or to
demand something. The word “remedium” means that the person has the
right of action in the court of law. The literal meaning of the maxim is where
there is a wrong there is a remedy.
The circuit court of appeals of the United States of America in the case of Leo
feist v. young observed that “it is an elementary maxim of the equity of
jurisprudence and there is no wrong without a remedy”.
1. This maxim also says that there is no remedy without any wrong and the
persons whose right is being violated has a right to stand before the
court of law.
2. This principle also states that if the rights are available to a person then
it is required to be maintained by that person only and remedy is
available only when he is injured in the exercise of duty or enjoyment of
it;
3. It is useless to imagine and think a right without a remedy.
4. It is necessary to keep in mind that both rights violated and the remedy
sought or to be obtained should be legal.
There are many moral and political wrong but are not actionable or it does not
give many sufficient reasons to take legal action as they are not recognized by
law. The maxim does not mean that there is a legal remedy for each and every
wrong committed.
1. For example, a contract which was required to be made on stamped

paper may be made orally; in such circumstances, irrecoverable harm
may be caused to other person and yet no legal remedy is available.
Thus, the maxim does not mean that there is a remedy for every possible
wrong. It is appropriately said by Justice Stephen that maxim would be
correctly stated if maxim were to be reversed to say that “where there is no
legal remedy, there is no legal wrong.

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Essentials of Ubi jus ibi remedium
1. The maxim ubi jus ibi remedium can be applied only where the right
exists and that right should be recognized by the court of law;
2. A wrongful act must have been done which violates the legal rights of a
person clearly.
3. This maxim can be used only when sufficient relief has not been
provided by the court to the person who sustained the injury.
4. This maxim is applicable if any legal injury had been caused to any
person, if no legal injury has been caused then the maxim damnum sine
injuria will be used which means damage without any legal injury.
Limitations of ubi jus ibi remedium
1. The maxim ubi jus ibi remedium does not apply to moral and political
wrong which are not actionable.
2. This maxim is not applied to those cases in which proper remedy is given
in case of breach of right under common law.
3. If there is no legal damage which has been caused to any person then
this maxim will not be applicable.
4. No remedies are available in case of breach of marriage vows or
personal commitment as these all are the promises made without
consideration and are based on trust.
5. This maxim is also not applicable in case of public nuisance unless and
until a plaintiff shows that he suffered more injury than other members
or peoples of the society.
6. This maxim is not applicable where the plaintiff is negligent or there is
negligence on the part of the plaintiff.
Q. How far Motive and malice are relevant in an action for tort ?
Or
Q. How is intention relevant to torts ?
Motive :- Sir John Salmond has defined `Motive' as the ulterior intent. Motive
is the ultimate object with which an act is done.

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Motive signifies the reason for conduct and sometimes it is entangled with the
word `malice' which has quite a different meaning in law of tort. Motive
generally means what is usually interpreted - èvil motive' or it may indicate
performance of an act wilfully without just cause or excuse, but the latter
meaning is the intention and not motive. Salmond has described motive as the
"ulterior intent."
Motive is generally irrelevant in determining whether an act or omission is a

tort or not. If the conduct of a person is unlawful, a good motive will not be a
defence for the defendant; and if the conduct being lawful apart from motive,
a bad motive will not make him liable. The irrelevancy of an evil motive was
affirmed by the House of Lords in Bradford Corporation v. Pickles. Lord
Macnaughten indicated, "It is the act not the motive for the act that must be
regarded. If the act apart from the motive gives rise merely to damage without
legal injury, however reprehensible it may be, will not supply that element."
Malice :- The term malice as used in law is ambiguous and possesses two
distinct meanings which require to be carefully distinguished. It signifies either
(1) the intentional doing of wrongful act without just cause or excuse, or (2)
action determined by an improper motive.
In Bromage v. Prosser, (1825) 4 B and C 247, 255 - It was observed "Malice in

common acceptation means ill-will against a person, but in its legal sense it
means a wrongful act, done intentionally without just cause or èxcuse'.
The term `malice' has been used in two different sense :
(a) Malice in law - In its legal sense, the term `malice' means "a
wrongful act done intentionally without just cause or excuse." It
means that wrongful intent is assumed in case of an unlawful act.
In Shearer v. Shields, (1914) A.C. 808, it was observed that a

person who inflicts an injury upon another person in
contravention of the law is not allowed to say that he did so with
an innocent mind; he is taken to know the law, and he must act
within the law. He may, therefore, be guilty of malice in law,
although, so far the state of mind is concerned, he acts ignorantly
and in that sense innocently.

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Thus, a wrongful intention is presumed in case of an unlawful act

done without just cause or excuse or for want of reasonable or
probable cause (Smt. S.R. Venkataraman v. Union of India, AIR
1979 SC 49). A malicious defamatory statement means that the
statement is made without lawful justification.
(b) Malice in fact - In its narrow and popular sense the term `malice'
means an evil or improper motive. It is the malice in fact or àctual
malice'. When the defendant does a wrongful act with a feeling or
spite, vengeance or ill-will the act is said to be done `maliciously'.
Motive means an ulterior reason for the conduct e.g. motive for
theft may be to buy food for his children or to help a poor man.
As a general rule, malice in the sense of improper motive is
entirely irrelevant in the law of torts. The law in general asks
merely what the defendant has done, not why he did it. A good
motive is no justification for an act otherwise illegal, and a bad
motive does not make wrongful an act otherwise legal.
In a leading case Bradford Corporation v. Pickles, (1895) A.C. 587 where

defendant was held not liable for intentionally intercepting, by means of
excavations on his own land, the underground water that would otherwise
have flowed into adjoining reservoir of the plaintiffs, although his sole motive
in so doing was to coerce the plaintiffs to buy this land at his own price. House
of Lords observed that the respondent's conduct was not malicious in the
sense of being actuated by spite or ill-will towards plaintiffs. His position was
simple. He had something to sell and he did not see why the plaintiffs should
not pay the price he asked..........In short his motive was not an improper one
in the eye of common law.........".
Difference between Malice-in-fact and Malice-in-law:
Malice-in-fact Malice-in-law
(i) Malice-in-fact or express malice is an (i) Malice-in-law or implied malice

act done with ill will towards an means an act done wrongfully and
individual. without reasonable and probable
cause. In order to constitute malice-in-

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law, the act done must be wrongful or

legal right must be violated.
(ii) Malice-in-fact depends upon (ii) Malice-in-law depends upon

motive. knowledge.
(iii) Malice-in-fact means ill-will or any (iii) Malice-in-law means the

vindictive motive against a person. concurrence of mind with a wrongful
act done without just cause or excuse.
Relevancy of Malice in Law of Torts - Express malice or malice in the sense of

improper motive is irrelevant in the law of torts. A lawful act does not become
unlawful merely because it is done with a bad motive or malice. As Bowen J.
observed :
As a general rule, motive is not relevant in torts. A wrongful act does not
become lawful, because there is no motive, or a lawful act does not become
tortious because there was an improper motive. Malice usually aggravates the
damages.
But malice-in-law is relevant.
In Quinn v. Leathem, A, intentionally and without lawful justification, induced

B's workmen to discontinue their contract with B. A did this, prompted by a
good motive to do good both to B's workmen. It was held that as the
procurement of a breach of contract without lawful justification was tort. A
was liable.
Torts where actual motive or improper motive is relevant :
The mental element of mens rea, though not applicable in torts, is relevant in
the following intentional torts. Such torts are described using such words as
“wrongful”, “malicious”, “intentionally”. In case, the defendant had taken care
or discharged his duty to take care, then he is not held liable for any damage,
in the tort of negligence.
1. Defamation on qualified privileged occasion,

2. Malicious prosecution,

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3. Wilful and malicious damage to property.

4. Injurious falsehood about goods, slander, of title etc.
5. Malicious conspiracy, and
6. Maintenance.
Torts where actual motive or improper motive is relevant :
In certain other torts, the mental element is quite irrelevant and arises, even
when there is no intention on the part of the defendant.
1. Conversion
2. Defamation of innuendo
3. Strict liability
4. Absolute liability
Q. Is it law of tort or law of torts ?
Q. What is pigeon hole theory ?

Introduction
The question is generally asked in the form, “is there a law of tort or only a law
of torts?” There are two competing theories in this regard. According to one
theory, there is a general principle that all wrongs are actionable as tort unless
there is any legal justification. The other theory says that there is no general
principle of liability as such but only a definite number of torts as trespass,
negligence, nuisance, defamation etc. and the plaintiff has no remedy unless
he brings his case under one of the nominate torts.
Winfield theory of tort: Winfield is the chief supporter of this theory. He says,
all injuries done to another person are torts, unless there is some justification
recognized by law. Thus according to this theory tort consists not merely of
those torts which have acquired specific names but also included the wider
principle that all unjustifiable harm is tortuous. This enables the courts to
create new torts. Winfield while supporting this theory comes to the
conclusion that law of tort is growing and from time to time courts have
created new torts.Creation Of New Torts: This theory is also supported by the
creation of new torts by courts of law. For example:-

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1. The tort of inducement to a wife to leave her husband in Winsmore v.

Greenbank (1745) Willes 577 (581).
2. Tort of deceit in its present form had its origin in Pasley v. Freeman
(1789) 3 TR 51
3. Tort of inducement of breach of contract had its origin in Lumley v. Gye
(1853) 2 E & B 216.
4. The tort of strict liability had its origin in Rylands v. Fletcher (1868) LR 3
HL 330.
5. The tort of intimidation in Rookes v. Barnard (1964) 1 All ER 367
From the above mentioned cases it is clear that the law of tort is steadily
expanding and that the idea of its being in a set of pigeon-holes seems to be
untenable.
Winfield’s Theory And Indian Judiciary: Indian judiciary has also shown a
favour to Winfield’s theory. In the words of Justice BHAGWATI, C.J., we have to
evolve new principles and lay down new norms which will adequately deal
with new problems which arise in a highly industrialized economy. We cannot
allow our judicial thinking to be constricted by reference to the law as it
prevails in England……. we are certainly prepared to receive light from
whatever source it comes but we have to build our own Jurisprudence. In the
same case the Supreme Court of India established the concept of ABSOLUTE
LIABILITY in place of strict liability [Ref. case- M.C. Mehta v. Union of India, AIR
1987 SC 1086]
Salmond theory of torts: Salmond on the other hand, preferred the second
alternative and for him, there is no law of tort, but there is law of torts.
According to him the liability under this branch of law arises only when the
wrong is covered by any one or other nominate torts. There is no general
principle of liability and if the plaintiff can place his wrong in any of the pigeon-
holes, each containing a labelled tort, he will succeed. This theory is also
known as ‘Pigeon-hole theory’. If there is no pigeon-hole in which the
plaintiff’s case could fit in, the defendant has committed no tort.
According to Salmond, just as the criminal law consists of a body of rules

establishing specific offences, so the law of torts consists of a body of rules
establishing specific injuries.

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Supporters of This Theory:
· Professor Dr. Jenks favoured Salmond’s theory. He was, however, of the view
that Salmond’s theory does not imply that courts are incapable of creating new
tort. According to him, the court can create new torts but such new torts
cannot be created unless they are substantially similar to those which are
already in existence [Ref.- Journal of Comparative Legislation, Vol. XIV (1932) p.
210].
Each theory is correct from its point of view it depends on the question of
approach or looking at things from a certain angle.
Q. How law of torts is different from crime

S.NO Tort Crime
The person who commits a tort is The person who commits a crime is known
1.
known as ‘tortfeasor’. as ‘offender’.
Proceedings take place in Civil

2. Proceedings take place in Criminal Court.
Court.
The remedy in tort is unliquidated

3. The remedy is to punish the offender.
damages.

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It is not codified as it depends on Criminal law is codified as the punishments

4.
judge-made laws. are defined.
Private rights of the individuals Public rights and duties are violated which
5.
are violated. affects the whole community.
Unit II
Q. What are the general defences against tort ?
Whenever a case is brought against the defendant for the commission of a tort
and all the essential elements of that wrong are present, the defendant would
be held liable for the same. Even in such cases, the defendant can avoid his
liability by taking the plea of the defenses available under the law of torts.
Some defences are particularly relating to some offences. In the case of

defamation, the defences available are fair comment, privileges and
justification, etc. These general exceptions, or conditions, or justification of
torts are,
1. Consent or Leave and Licence. (Volenti nonfit injuria),

2. Plaintiff the wrongdoer
3. Inevitable accident,
4. Act of God
5. Private Defence
6. Necessity,
7. Statutory Authority,

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Volenti non fit injuria
In case, a plaintiff voluntarily suffers some harm, he has no remedy for that
under the law of tort and he is not allowed to complain about the same. The
reason behind this defence is that no one can enforce a right that he has
voluntarily abandoned or waived. Consent to suffer harm can be express or
implied.
Some examples of the defence are:
 When you yourself call somebody to your house you cannot sue your
guests for trespass;
 If you have agreed to a surgical operation then you cannot sue the
surgeon for it; and
 If you agree to the publication of something you were aware of, then
you cannot sue him for defamation.
 A player in the games is deemed to be ready to suffer any harm in the
course of the game.

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 A spectator in the game of cricket will not be allowed to claim

compensation for any damages suffered.
In Hally. Brooklands Auto Racing Club, the plaintiff was a spectator of a car
racing event and the track on which the race was going on belonged to the
defendant. During the race, two cars collided and out of which one was thrown
among the people who were watching the race. The plaintiff was injured. The
court held that the plaintiff knowingly undertook the risk of watching the race.
It is a type of injury which could be foreseen by anyone watching the event.
The defendant was not liable in this case.
Plaintiff the wrongdoer
There is a maxim “Ex turpi causa non oritur actio” which says that “from an
immoral cause, no action arises”. If the basis of the action by the plaintiff is an
unlawful contract then he will not succeed in his actions and he cannot recover
damages.
If a defendant asserts that the claimant himself is the wrongdoer and is not
entitled to the damages, then it does not mean that the court will declare him
free from the liability but he will not be liable under this head.
In the case of Bird v. Holbrook, the plaintiff was entitled to recover damages
suffered by him due to the spring-guns set by him in his garden without any
notice for the same.
Inevitable accident
Accident means an unexpected injury and if the same accident could not have
been stopped or avoided in spite of taking all due care and precautions on the
part of the defendant, then we call it an inevitable accident. It serves as a good
defence as the defendant could show that the injury could not be stopped
even after taking all the precautions and there was no intent to harm the
plaintiff.
In Stanley v. Powell, the defendant and the plaintiff went to a pheasant
shooting. The defendant fired at a pheasant but the bullet after getting
reflected by an oak tree hit the plaintiff and he suffered serious injuries. The

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incident was considered an inevitable accident and the defendant was not
liable in this case.
Act of God
Act of God serves as a good defence under the law of torts. It is also recognized
as a valid defence in the rule of ‘Strict Liability’ in the case of Rylands v.
Fletcher.
The defence of Act of God and Inevitable accident might look the same but
they are different. Act of God is a kind of inevitable accident in which the
natural forces play their role and causes damage. For example, heavy rainfall,
storms, tides, etc.
Essentials required for this defence are:
 Natural forces’ working should be there.

 There must be an extraordinary occurrence and not the one which
could be anticipated and guarded against reasonably.
In Ramalinga Nadar v. Narayan Reddiar, the unruly mob robbed all the goods
transported in the defendant’s lorry. It cannot be considered to be an Act of
God and the defendant, as a common carrier, will be compensated for all the
loss suffered by him.
In Nichols v. Marsland, the defendant created an artificial lake on his land by
collecting water from natural streams. Once there was an extraordinary
rainfall, heaviest in human memory. The embankments of the lake got
destroyed and washed away all the four bridges belonging to the plaintiff. The
court held that the defendants were not liable as the same was due to the Act
of God.
Private defence
The law has given permission to protect one’s life and property and for that, it
has allowed the use of reasonable force to protect himself and his property.
 The use of force is justified only for the purpose of self-defence.

 There should be an imminent threat to a person’s life or property.

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For example, A would not be justified in using force against B just because he
believes that some day he will be attacked by B.
 The force used must be reasonable and to repel an imminent danger.

For example, if A tried to commit a robbery in the house of B and B just draw
his sword and chopped his head, then this act of A would not be justified and
the defence of private defence cannot be pleaded.
 For the protection of property also, the law has only allowed taking
such measures which are necessary to prevent the danger.
For example, fixing of broken glass pieces on a wall, keeping a fierce dog, etc. is
all justified in the eyes of law.
In Bird v. Holbrook, the defendant fixed up spring guns in his garden without
displaying any notice regarding the same and the plaintiff who was a
trespasser suffered injuries due to its automatic discharge. The court held that
this act of the defendant is not justified and the plaintiff is entitled to get
compensation for the injuries suffered by him.
Necessity
If an act is done to prevent greater harm, even though the act was done
intentionally, is not actionable and serves as a good defence.
It should be distinguished with private defence and an inevitable accident.
The following points should be considered:
 In necessity, the infliction of harm is upon an innocent whereas in

case of private defence the plaintiff is himself a wrongdoer.
 In necessity, the harm is done intentionally whereas in case of an
inevitable accident the harm is caused in spite of making all the
efforts to avoid it.
 Necessity is applicable only when the wrongful act is done , in order
to rescue or save another person or property, and not for self-
preservation.

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For example, performing an operation of an unconscious patient just to save

his life is justified.
In the case R vs Dudley and Stephen, the defendants had killed a small boy and
eaten him, in order to survive being lost in the high seas for many days. When
they were rescued, they were tried for the murder of the boy. The court
rejected their defence of necessity, by observing that necessity was applicable
only for saving another person or property and not for self-preservation.
In Leigh v. Gladstone, it was held that the forcible feeding of a person who was
hunger-striking in a prison served as a good defence for the tort of battery.
In Cope v. Sharpe, the defendant entered the plaintiff’s premises to stop the
spread of fire in the adjoining land where the defendant’s master had the
shooting rights. Since the defendant’s act was to prevent greater harm so he
was held not liable for trespass.
Statutory authority
If an act is authorized by any act or statute, then it is not actionable even if it

would constitute a tort otherwise. It is a complete defence and the injured
party has no remedy except for claiming compensation as may have been
provided by the statute.
Immunity under statutory authority is not given only for the harm which is
obvious but also for the harm which is incidental.
In Vaughan v. Taff Valde Rail Co., sparks from an engine of the respondent’s
railway company were authorized to run the railway, set fire to the appellant’s
woods on the adjoining land. It was held that since they did not do anything
which was prohibited by the statute and took due care and precaution, they
were not liable.
Q. What do you mean by vicarious liability in Tort? Whether a master is

liable for committing fraud, theft by his servant during course of
employment?
Or
Q. What do you mean by vicarious liability? Explain with decided cases.

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Vicarious Liability, As a general rule, a man is liable only for his own act but
there are certain circumstances in which a person is liable for the wrong
committed by others. This is called "vicarious liability", that is, liability incurred
for another. The most common instance is the liability of the master for the
wrong committed by his servants. In these cases liability is joint as well as
several. The plaintiff can sue the actual wrong-doer himself, be he a servant or
agent, as well as his principal. In the words of Salmond, "In general a person is
responsible only for his own acts, but there are exceptional cases in which the
law imposes on him vicarious responsibility for the acts of another, however,
blameless himself."
The doctrine of vicarious liability is based on principles which can be summed

up in the following two maxims,
(a) Qui facit per alium facit per se, The maxim means, 'he who acts through
another is deemed in law as doing it himself. The master's responsibility for the
servant's act had also its origin in this principle. The reasoning is that a person
who puts another in his place to do a class of acts in his absence, necessarily
leaves to determine, according to the circumstances that arise, when an act of
that class is to be done and trust him for the manner in which it is done,
consequently he is answerable for the wrong of the person so entrusted either
in the manner of doing such an act, or in doing such an act under
circumstances in which it ought not to have been done, provided what is done
is not done from any caprice of the servant but in the course of the
employment.
(b) Respondeat superior, This maxim means that, the superior must be
responsible or let the principal be liable. In such cases not only he who obeys
but also he who command becomes equally liable This rule has its origin in the
legal presumption that all acts done by the servant in and about his master's
business are done by his master's express or implied authority and are, in
truth, the act of the master. It puts the master in the same position as if he had
done the act himself. The master is answerable for every such wrong of the
servant as is committed in the course of his service, though no express
command or privity is proved. Similarly, a principal and agent are jointly and

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severally liable as joint wrongdoers for any tort authorised by the former and
committed by the latter. Modern View, In recent times, however, the doctrine
of vicarious liability is justified on the principle other than that embodied in the
above-mentioned maxims. It is now believed that the underlying idea of this
doctrine is that of expediency and public policy. Salmond has rightly remarked
in this connection that "there is one idea which is found in the judgments from
the time of Sir John Holt to that of LordGoddard, namely, public policy."
Modes of vicarious liability, The liability for others wrongful acts or omissions
may arise in one of the following three ways,
1. Liability by ratification, Where the defendant has authorised or ratified

the particular wrongful act or omission.
2. Liability arising out of special relationship, Where the defendant stands
to the wrongdoer in a relation which makes the former answerable for
wrongs committed by the other, though not specifically authorised. This
is the most important form of liability. Liability arising out of master and
Servant
Who is servant? Lord Thankerton has said that there must be contract of
service between the master and servant has laid down the following four
ingredients.
1. the master's power of selection of his servant,

2. the payment of wages or other remuneration,
3. the master's right to control the method of doing the work, and
4. the master's right of suspension or dismissal.
Thus, a servant may be defined as any person employed by another to do work

for him on the terms that he is to be subject to the control and directions of his
employer in respect of the manner in which his work is to be done. A servant is
thus an agent who works under the supervision and direction of his employer,
engaged to obey his employer's order from time to time. Applying this test, a
son is not a servant of his father in the eye of law.

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For instance, a Government employee was travelling in a jeep to deliver

medicines in the course of his duties. He had licence to drive and had also been
authorised to drive the Government's vehicle in the case of necessity. The
driver of the jeep suddenly took ill and, therefore, he had to drive, in order to
ensure the medicines reaching their destination, While driving the jeep he
negligently run over the deceased, It was held that he was acting in the course
of employment and thus the Government was liable.
Main incidents of Master's Liability, There are six principal ways in which a
master becomes liable for the wrong done by servants in the course of their
employment.
1. The wrong committed by the servant may be the natural consequence

of something done by him with ordinary care in execution of his
master 's specific orders.
In Indian Insurance Corporation, Association Pool, Bombay Verses

Radhabai, the driver of a motor vehicle belonging to the Primary Health
Centre of the State was required to bring the ailing children by bus to the
Primary Health Centre. The driver in the course of driving gave the control
of the steering wheel to an unauthorised person. It was an unauthorised
mode of doing the act authorised by the master. It was held that in such
circumstances, the Government, viz., the owner of the vehicle is vicariously
liable for the negligence of the driver in permitting unauthorised person to
drive the vehicle.
2. Master will be liable for the negligence of his servant.
In Baldeo Raj Verses Deowati, the driver of a Truck sat by the side of the
conductor and allowed the conductor to drive. The conductor caused an
accident with a rickshaw as a result of which a rikshaw passenger died. It
was held that the act of the driver in permitting the conductor to drive the
vehicle at the relevant time was a breach of duty by the driver, and that
was the direct cause of the accident. For such negligence of the driver his
master was held vicariously liable.

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3. Servant's wrong may consist in excess of mistaken execution of lawful

authority.
Here two things have to be established.
1. In the first place, it must be shown that the servant intended to do

on behalf of his master something which he was, in fact,
authorised to do.
2. Secondly, it has to be proted that the act if done in a proper
manner, would have been lawful.
4. Wrong' may be a wilful wrong but doing on the master's behalf and
with the intention of serving his purpose.
If a servant performs some act which indicates recklessness in his conduct

but which is within the course of his employment and calculated to serve
the interest of the master, then the latter will be saddled with the
responsibility for it.
5. Wrong may be due to the servant's fraudulent act.
A master is liable also for the wrongful acts of his servants done
fraudulently. It is immaterial that the servant's fraud was for his own
benefit. The master is liable if the servant was having the authority to do
the act, that is, the act must be comprehended within his ostensible
authority. The underlying principle is that on account of the fraudulent act
of the servant, the master is deemed to extend a tacit invitation to others
to enter into dealings or transactions with him. Therefore, the master's
liability for the fraudulent acts of his servants is limited to cases where the
plaintiff has been invited by the defendant to enter into some sort of
relationship with a wrong doer. Consequently, where there is no invitation,
express or implied, the acts will be treated as the independent acts of his
servant himself, and outside the scope of his employment,
6. Wrong may be due to the Servant's Criminal Act.

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Though there is no such thing as vicarious liability in criminal proceedings,

yet in a civil action, a master is liable in respect of the criminal acts of a
servant, provided they are committed in the course of his employment.

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Unit III
Q. What is negligence ? Discuss important features of negligence with cases.

Negligence is the absence of reasonable care which is imposed on all persons
so as not to place the other person at foreseeable risk of harm through his
conduct. It is the failure to act is a particular way by taking into account the
apprehended injury that could be sustained due to carelessness to one party.
Essential elements
 Duty: There must be some duty or an obligation which one person

owes to another. If the defendant fails to fulfil the duty which he
owes to the plaintiff in the eyes of law then he can be held liable. So
at first, it should be assessed whether the defendant owes any duty of
care to the plaintiff or not. Sometimes the relationship between the
plaintiff and defendant creates a legal duty or obligation to act in a
certain manner.
Example : A doctor owes a duty of care to the plaintiff i.e to treat the
patient in an appropriate manner. If the doctor while treating the
patient left a ring in his abdomen, then he can be said to be negligent
in giving appropriate medical treatment. The doctor owed a duty of
care towards his patient which he failed to do so.
 Breach of duty: once it has been assessed that defendant owes a duty
of care to the plaintiff, it should be further established that there was
some breach of duty i.e one person failed to exercise a take. “Amount
of care” means the care which a reasonable person would have taken
in those circumstances. Whether there was any breach of duty is both
a subjective and objective test. The defendant can be said to be
negligent if he knew that his action would affect the other person if
he does not act in a particular way,
Example : if the owner of the dog knows that his dog is of ferocious
nature then he should put some warning on the gate like “Beware of
dog” or “Enter at your own risk”. If he fails to do so then he can be
held negligent in taking such care.

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 Causation (cause in fact): This element aims at establishing that there

should be some negligence on the part of the defendant which
caused such injury or harm to the plaintiff. The plaintiff should prove
that the loss suffered was caused by the defendant. The (but for) rule
is used in proving the causation i.e whether the injury suffered would
have happened but for the action of the target of your suit.
 Proximate cause: If a person cannot foresee that something bad
could happen to another person then how could he be held liable. To
make the person liable for alleged action it should be proved that his
action was the remote/closest cause for the injuries sustained. If the
act is foreseeable then only the person is liable otherwise not
Example. If a motorcyclist hit the pedestrian on the road due to which

he suffered a severe injury on the head. Seeing the sight on the
internet, a woman whose house was on the road had a heart failure.
The motorcyclist was liable to the pedestrian as he failed to take
reasonable care while driving. But he is not liable to the woman who
had a heart attack because that was not foreseeable.
 Damages: The last element of negligence is damages. The person who

had sustained injury should be compensated for such harm. The test
of (reasonable person) is important to decide if the plaintiff is entitled
to compensation or not. The compensation given to the plaintiff
should be capable of putting him back in the position in which he was
before the incident took place.
Example : if the car driver hit the motorcyclist due to which he

sustained injuries and had to miss work, the compensation that the
car driver could be made to pay should bear his medical expenses,
lost earnings and the pain and suffering endured by him.
Case law : Palsgraf v Long Island Railroad Co [1928]
The elements that must be satisfied in order to bring a claim in negligence
(note that this is a US case)
Facts

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The claimant was standing on a station platform purchasing a ticket. Whilst she
was doing so a train stopped in the station and two men ran to catch it. One of
the men tripped and whilst attempting to help the fallen man, members of the
railway staff caused a box of fireworks to fall and the fireworks to explode. The
explosion caused a set of scales to fall at the other end of the platform which
in turn injured the claimant. The court at first instance found in favour of the
claimant, and the judgment was affirmed on appeal. The defendant appealed
to the US Supreme Court.
Issue
The issue in this context appears to relate to the notion of remoteness of
damage in an English law context, although it is stated as setting out the
elements necessary for a claim in negligence to be brought.
Held
It was held that the defendant was not liable to the claimant. In this respect, it
was held that a claimant must, in order to bring a claim in negligence,
demonstrate that there has been some violation of her personal rights. Whilst
it was acknowledged that the guards who caused the package of fireworks to
fall were negligent in doing so, it was not considered that they were negligent
to the claimant. There was no indication that the content of the package was
fireworks or that dropping it would cause it to explode. Furthermore, the
claimant was standing some distance away from the package. Therefore, it was
considered that if the defendant was held liable to the claimant in these
circumstances, a defendant would be liable in any circumstance for almost any
loss.
Defences to negligence
i) Volenti non fit injuria: If a person acts voluntarily and is aware of the
risk associated, he cannot recover damages if he suffers harm. This is
the voluntary acceptance of risk. The person should be free to make a
choice when the employer forces an employee to take the risk of
which he is aware but is not willing to undertake. Here, the defense
cannot be used by the employer if an injury is sustained by the

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employee because the employer had forced the employee to

undertake the risk against his will.
Essential of Volenti non fit injuria:
1. There was knowledge of risk by the plaintiff

2. He voluntarily undertook such risk
ii) Contributory negligence: When the damage which the plaintiff has
suffered was partly due to his fault and partly due to the fault of the
defendant, this constitutes contributory negligence. In order to prove
contributory negligence, it must be proved that the plaintiff failed to
take reasonable care for his safety. In a collision between two cars,
the defendant was driving negligently at high speed. It was
discovered that the plaintiff was not wearing seat belt due to which
he sustained the higher amount of injuries than if he had been
wearing a seatbelt. The plaintiff failed to take reasonable care which
was expected on his part. So he is liable for contributory negligence.
iii) Ex turpi causa: it means no defense or legal remedy can be initiated if
the cause of action which arose was due to the illegal conduct of the
plaintiff i.e no action can be found on a bad cause.
For example, Mr. Anil took a lift in a car which he knows was stolen
by the other person. Later, the car met with an accident, Mr. Anil
cannot initiate an action against the other party under this principle.
Q. What do you understand by the expression `Nuisance' ? what are kinds of
nuisance ? Distinguish between Public and Private Nuisance
Introduction
As implied from the introduction, if someone elseʼs improper use of his/her

property results into an unlawful and/or unreasonable interference with
his/her use or enjoyment of that property, a nuisance is said to have taken
place.
In other words, Nuisance is an unlawful or unreasonable interference with a

personʼs use or enjoyment of land, or of right over property or in connection
with it.

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Factors that determine nuisance
1. The defendant’s actions actually constitute an interference
All property owners have a right to certain comforts. If the defendant's

conduct interferes with basic comforts, such as the ability to sleep through
the night, it is more likely that the defendant has committed a tort.
2. The defendants action must be continuous
If the behavior occurs very infrequently, such as a one-time party, the

behavior is not a tort; if it occurs one a week, then the plaintiff is more
likely to be compensated. Situation is very important in determining
nuisance.
For example, if a plaintiff complains of loud noises by the defendant, it is

more likely to be considered a nuisance if it occurs in a rural area where
that type of noise is very uncommon. In a heavily populated, urban area,
the plaintiff's complaint may not constitute a nuisance.
3. The sensitivity of the Claimant
If the damage is due more to the sensitivity of the claimant’s property than
to the defendant’s conduct then no nuisance is committed.
In the case Robinson v Kilvert, the defendants operated a factory which

made paper boxes. This required the factory to be continually warm and
dry to ensure that the paper boxes were in good condition. The claimant
rented the ground floor and used this area to store special brown paper.
The heat from the defendant’s factory damaged this brown paper, which
was unusually sensitive to heat, and the claimant sued in nuisance. The
claim was dismissed as there was no nuisance. The conditions in the
factory were not particularly unusual, and the claimant’s operation of the
factory in these conditions was not unlawful.
4. Public benefit overweighed private rights
Private right is undoubtedly given more importance than the public benefit.
However, the modern view considers that while awarding remedies being

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sought. The court may take public benefit into consideration in order to
decide whether or not to grant an injunction.
In Miller v Jackson [1977] QB 966, the plaintiff complained about cricket

balls entering his garden frequently from the adjacent cricket club even
after the club’s several attempts to prevent it. The court held that a
nuisance had taken place, however declined injunction since the court felt
that public utility of the club outweighed the plaintiff’s interest
5. Where a statute authorized the nuisance
Where a statute has authorised the doing of a particular act or the use of
land in a particular way, all remedies whether by way of indictment or
action, are taken away. When a road laying machine operates to lay the
road, residents cannot claim nuisance, as they contractors are authorized
by law to lay the road.
Types of nuisance
1. Public Nuisance
Section 268 of the Indian Penal Code, defines it as “an act or illegal
omission which causes any common injury, danger or annoyance, to the
people in general who dwell, or occupy property, in the vicinity, or which
must necessarily cause injury, obstruction, danger or annoyance to persons
who may have occasion to use any public right.”
Simply speaking, public nuisance is an act affecting the public at large, or

some considerable portion of it; and it must interfere with rights which
members of the community might otherwise enjoy.
Thus acts which seriously interfere with the health, safety, comfort or
convenience of the public generally or which tend to degrade public morals
have always been considered public nuisance.
Examples of public nuisance are
1. Carrying on trade which cause offensive smells

2. Carrying on trade which cause intolerable noises

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3. Keeping an inflammable substance like gunpowder in large

quantities,
4. Drawing water in a can from a filthy source,
Essential elements of public nuisance
1. Public nuisance can only be subject of one action, otherwise a party

might be ruined by a million suits. Further, it would give rise to
multiplicity of litigation resulting in burdening the judicial system.
2. Public Nuisance is not a tort and thus does not give rise to civil action.
3. The defendant must be presumed to have knowledge of the
existence of the nuisance, that he had failed to take reasonable steps
to bring it to an end although he had ample time to do so.
2. Private Nuisance
Private nuisance is the using or authorising the use of one’s property, or of

anything under one’s control, so as to injuriously affect an owner or
occupier of property by physically injuring his property or affecting its
enjoyment by interfering materially with his health, comfort or
convenience.
In contrast to public nuisance, private nuisance is an act affecting some

particular individual or individuals as distinguished from the public at large.
The remedy in an action for private nuisance is a civil action for damages or
an injunction or both and not an indictment.
Elements of Private Nuisance
Private nuisance is an unlawful interference and/or annoyance which cause

damages to an occupier or owner of land in respect of his enjoyment of the
land.
Thus the elements of private nuisance are:
1. Unreasonable or unlawful interference;

2. Such interference is with the use or enjoyment of land, or some
right over, or in connection with the land; and
3. A damage is caused
Nuisance may be with respect to property or personal physical discomfort.

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

support an action.
In St. Helen Smelting Co. v. Tipping, (1865) 77 HCL 642:, the fumes from the
defendant’s manufacturing work damaged plaintiff’s trees and shrubs. The
Court held that such damages being an injury to property gave rise to a
cause of action.
2. Physical discomfort
In case of physical discomfort there are two essential conditions to be

fulfilled:
a. In excess of the natural and ordinary course of enjoyment of the

property
i. In order to be able to bring an action for nuisance to
property the person injured must have either a proprietary
or possessory interest in the premises affected by the
nuisance.
b. Materially interfering with the ordinary comfort of human existence
i. The discomfort should be such as an ordinary or average
person in the locality and environment would not put up
with or tolerate.
In Broadbent v. Imperial Gas Co. (1856) 7 De GM & G 436:, an injunction

was granted to prevent a gas company from manufacturing gas in such a
close proximity to the premises of the plaintiff, a market gardener, and in
such a manner as to injure his garden produce by the escape of noxious
matter.
DEFENCES TO NUISANCE
Following are the valid defences to an action for nuisance
Prescription or Easement
A special defence available in the case of nuisance is prescription if it has

been peaceable and openly enjoyed as an easement and as of right without

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interruption and for twenty years. After a nuisance has been continuously
in existence for twenty years prescriptive right to continue it is acquired as
an easement appurtenant to the land on which it exists. On the expiration
of this period the nuisance becomes legalised ab initio, as if it had been
authorised in its commencement by a grant from the owner of servient
land. The time runs, not from the day when the cause of the nuisance
began but from the day when the nuisance began.
The easement can be acquired only against specific property, not against
the entire world.
In Sturges v. Bridgman (1879) 11 Ch.D. 852 A had used a certain heavy

machinery for his business, for more than 20 years. B, a physician
neighbour, constructed a consulting room adjoining A’s house only shortly
before the present action and then found himself seriously inconvenienced
by the noise of A’s machinery. B brought an action against A for abatement
of the nuisance. It was held that B must succeed. A cannot plead
prescription since time runs not from the date when the cause of the
nuisance began but from the day when the nuisance began.
Statutory Authority
Where a statute has authorised the doing of a particular act or the use of
land in a particular way, all remedies whether by way of indictment or
action, are taken away; provided that every reasonable precaution
consistent with the exercise of the statutory powers has been taken.
Statutory authority may be either absolute or conditional.
In case of absolute authority, the statute allows the act notwithstanding

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

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In Vaughan v. Taff Vale Railway Company, The defendants who had

authority by Statute to locomotive engines on their railway, were held not
liable for a fire caused by the escape of sparks.
Q. Distinguish between nuisance and trespass

1. Trespass is direct physical interference with the plaintiff’s possession of
land through some material or tangible object while nuisance is an injury
to some right accessory to possession but no possession itself.
E.g. a right of way or light is an incorporeal right over property not
amounting to possession of it, and hence disturbance of it is a nuisance
and not trespass.
2. Trespass is actionable per se, while nuisance is actionable only on proof
of actual damage. It means trespass and nuisance are mutually exclusive.
Simple entry on another’s property without causing him any other injury
would be trespass. In nuisance injury to the property of another or
interference with his personal comfort or enjoyment of property is
necessary.
They may overlap when the injury is to possessory as well as to some

right necessary to possession. E.g. trespass of cattle discharge of noxious
matter into a stream and ultimately on another’s land.
3. To cause a material and tangible loss to an object or to enter another
person’s land is trespass and not nuisance; but where the thing is not
material and tangible or where though material and tangible, it is not
direct act of the defendant but merely consequential on his act, the
injury is not trespass but merely a nuisance actionable on proof of actual
damage.
If interference is direct, the wrong is trespass, if it is consequential, it

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

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Q. What is a strict liability tort ?
Liability is strict in those cases were the defendant is liable for damage cause
by his act irrespective of any fault on his part. Thus, liability is strict because it
is not based on any consideration of fault on the part of the defendant.
However, liability is strict and not absolute, since absolute liability does not
admit any exceptions or defences. This tort has it origin in nuisance. In fact, the
same set of facts may give rise to nuisance
Landmark case
The doctrine was established into the case of Rylands v. Fletcher. In Rylands v
Fletcher (1868) LR 3 HL 330, the defendants employed independent
contractors to construct a reservoir on their land. The contractors found
disused mines when digging but failed to seal them properly. They filled the
reservoir with water. As a result, water flooded through the mineshafts into
the plaintiff's mines on the adjoining property. The plaintiff secured a verdict
at Liverpool Assizes. The Court of Exchequer Chamber held the defendant
liable and the House of Lords affirmed their decision.
It was decided by Blackburn J, who delivered the judgment of the Court of

Exchequer Chamber, and the House of Lords, that to succeed in this tort the
claimant must show:
1. Some dangerous thing must have been brought by a person on his land.
2. There must be an escape from the defendant’s land of that thing, likely
to cause damage.
3. There must be a non-natural use of land.
4. The damage must result from that escape, as this tort is not actionable
per se.
Non Natural Use
For liability to be established under the rule in Rylands v. Fletcher, the

defendant must make a non-natural use of the land. This is defined in Richard
v. Lothian by Lord Multon as some special use bringing with it increased danger

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to others and not merely the ordinary use of the land or such a use as it proper
for the general benefit for the community. Thus, the use must be for the
personal purpose of the person doing the act. Non-natural use has been
described to mean:
1. Natural as supposed to artificial use of the land

2. Novel as distinct from traditional use of the land
Thus, this varies in response to changing social conditions and needs, the old
authority may decide differently today, as the non-natural uses of land of
yesteryears, may no longer be considered non-natural as of today.
Accumulation
The rule applies to things artificially accumulated, that is to say, brought and
kept on the defendant’s land. In Wilson v. Waddell, it was held that the
defendant is not liable under the negligence rule, if water naturally
accumulates on the defendant’s land and he has done anything dangerous to
accumulate it.
Escape
Escape for the purpose of applying the proposition in Rylands v. Fletcher

means escape from a place where the defendant has occupation or control
over land to a place which is outside his occupation or control.
In Pointing v. Noakes a poisonous tree on the defendant’s land which never

extended beyond the defendant’s boundary caused the death of a horse which
ate its leaves by reaching over from the adjacent land. It was held that there
was no escape and therefore no liability.
Exception to this rule:

i) Plaintiff’s own fault: If some intrusion by the plaintiff in defendant’s
property causes some harm to him then the defendant cannot be
held liable. In Ponting v Noakes, the plaintiff’s horse ate some
poisonous leaves from the defendant’s tree after which he died. The
defendant was not held liable as it was the wrongful intrusion by

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plaintiff’s horse. No damage would have been done if the horse

would not have entered defendant’s property.
ii) Act of god: Circumstances which are not under the control of human
beings or which are not foreseeable fall under this rule. The
defendant cannot be held liable if some natural event leads to the
escape of dangerous thing.
iii) Consent of the plaintiff: If the plaintiff has consented to the
accumulation of some dangerous thing on plaintiff’s land and the
source of danger was for the common benefit of both the plaintiff
and defendant then defendant cannot be held liable for such escape.
iv) Act of third party: If the act of third person causes some harm to the
plaintiff over which the defendant has no control or the person is not
defendant’s servant then he cannot be held liable under this rule. If
the act of third party is foreseeable then due care must be taken by
the defendant.
v) Statutory Authority: Act done under the authority of statue is a
defense provided there is no negligence.
Q. Short notes on malfeasance, misfeasance, and nonfeasance
Term ‘malfeasance’ applies to the commission of an unlawful act. It is generally
applicable to those unlawful acts, such as trespass, which are actionable per se
and do not require proof of negligence or malice.
The term ‘misfeasance’ is applicable to improper performance of some lawful
act.
The term ‘non-feasance’ applies to the failure or omission to perform some act
which there is an obligation to perform.
Q. What is absolute liability tort ?

Definition:
If an industry or enterprise is engaged in some inherently dangerous activity
from which it is deriving commercial gain and that activity is capable of causing
catastrophic damage then the industry officials are absolutely liable to pay
compensation to the aggrieved parties. The industry cannot plead that all
safety measures were taken care of by them and that there was negligence on
their part. Absolute liability tortfeasors will not be allowed any defence of

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exceptions, neither can they take up any defence such as ‘Act of God’ or ‘Act of
Stranger’.
Essential elements
Absolute liability is applicable
1. where those enterprises which are involved in hazardous or

inherently dangerous activities.
2. where the escape of a dangerous thing from one’s own land is not
necessary. Absolute liability is applicable to those injured within
the premise and outside the premise.
3. It is a principle which claims an individual liable without his being
at fault. This is the ‘no fault liability principle’.
In M.C Mehta v. Union of India, oleum gas leaked from one of the unit of
Shriram Foods fertilizer Industry in the city Delhi. Due to the leakage of this
gas, many people were affected. If the rule of strict liability would have been
applied in this situation then it would have been easy for the defendant to
escape by saying that the damage was due the act of stranger.
Justice Bhagwati also stated that the rule of strict liability was evolved in 19th
century, the time when nature industrial developments was at primary stage,
in today’s modern industrial society where hazardous or inherently dangerous
industries are necessary to carry out development programme, thus this old
rule cannot be held relevant in present day context. Also one cannot feel
inhibited by this rule which was evolved in the context of totally different
social and economic structure.
The court in this case by applying the rule of absolute liability held the
defendant liable. As per the directions of the court, the organisations who filed
the case could claim the compensation on behalf of the victims
ABSOLUTE LIABILITY STRICT LIABILITY

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Hazardous or inherently dangerous

Any other non-natural use of land
activities
Escape of a thing not necessary –

Escape of a thing necessary
liability within and outside premise
No exceptions allowed for defence Provides for exceptions
Applies to Non-Natural and Natural Applies only to Non-Natural use of

uses of land land
Liability is applied, so as to act as a

future deterrence, so enterprises Liability is applied in the form of
improve and strengthen their work unliquidated damages
practices, to reduce accidents.
Q. Write short notes on Volenti Non fit Injuria (Consent or Leave and
Licence)
Non Fit Injuria is a Latin maxim which refers to a willing person, an injury is not
done. It is a common law doctrine, by which a person who voluntarily gives
consent for any harm to suffer would not be liable to claim any damages for
the same and this consent serves as a good defence against the plaintiff. The
person who himself voluntarily waived or abandoned his right cannot have any
claim over it.
Example :
1. If A invites B to his house, can A sue B for trespass. There is no tortious

liability on B, as A has consented to B’s entry into his land.
2. But if A who is to be entertained in the drawing room enters into B’s
bedroom without A’s permission, B can be sued for trespass, because his
entry into the bedroom is unauthorised.
The consent may be either—

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1. express, or
2. implied.
Essential Conditions
For taking the defence of Volenti Non Fit Injuria it is necessary that:
a. The consent must be free
It is necessary that for pleading the defence of Volenti Non Fit Injuria the
consent so obtained by the defendant must be free that is it should not be
obtained by coercion fraud or through any other means. If such methods are
used to obtain the consent the defence would fail in getting the relief. Though
it is also necessary that the act should only be done to the extent till the
permission is granted exceeding the limit would also lead for non-application
of relief.
As in the case of Lakshmi Rajan vs. Malar Hospital Ltd, the old aged women of
40 noticed the lump in her breast. The lump has no effect on her uterus, but
during surgery, her uterus was removed without any justification. It was held
that the hospital authorities were liable for deficiency in service. It was also
held that the patient’s consent for operation did not imply her consent for
removal of the uterus.
b. Consent should not be obtained by fraud:
It is necessary that the consent so obtained by fraud would be void and the
defence would not be available under such circumstances.
As in the case of R. vs. Williams the accused for punished for raping 16 years
old minor girl by obtaining consent by fraud under the pretence that his act
was an operation to improve her voice. Under the first case the girl was not
knowing the nature of activities being done, she was under the misconception
of the surgical operation was being done and therefore the accused was liable
and the defence was not available for him.

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c. Mere knowledge does not imply assent:
For the successful defence of the doctrine it is necessary that
 The plaintiff knew that the risk is there

 He, knowing the same, agreed to suffer the harm
Mere completion of the first condition doesn’t imply the successful defence as
the knowledge doesn’t imply for agreement suffer the risk involved.
As in the case of Bowater vs. Rowley Regis Corporation the plaintiff was a cart
driver who was asked by the defendant’s foreman to drive a horse which they
both knew was liable to bolt. The plaintiff protested but later took out the
horse in obedience to the order. The horse was bolted and the plaintiff was
injured thereby. It was held that the defence of Volenti Non Fit Injuria can’t be
applied as because the first it was master-servant relationship where the
master knew the and have knowledge about the risk involved in the act, and
also the cart driver didn’t give consent freely as he has to follow his masters
order and therefore the plaintiff’s claim was granted, and the defence failed.
d. Negligence of the defendant
For the doctrine to be successfully applicable it is further necessary that the act
must be done to such an extent to which the consent has been given. Thus, if
while playing cricket, the person gets injured by the ball he can’t have any
claim against another as he himself has given consent towards it. But the same
injury is done to him by negligently or by intentionally then the injured person
can have a claim against him as he doesn’t give consent for the harm to suffer
for the negligent act of another.
As in the case of Slater vs. Clay Cross Co. Ltd, in this case, the plaintiff was
injured by the train driver by the defendant’s company, while she was walking
along a narrow tunnel on a railway track which was owned and occupied by
the defendant’s company. The plaintiff was having the knowledge of the same,
and so does the company owner and therefore it was instructed to the driver
of the trains to give a whistle before passing from that tunnel. Due to the

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negligence of the train driver, who have forgotten to give whittle the lady got
injured. It was held that the lady took the risk of passing to that track, but she
doesn’t give the consent to the risk of the driver’s negligence. Exceptions :
The defence of consent is curtailed in Rescue cases
Q. Short notes on Res ipsa Loquitor

At the end, the important points related to this maxim can be summarised as
follows,
1. By applying this maxim the burden of proof is shifted from the plaintiff
to the defendant. Instead of the plaintiff proving negligence the
defendant is required disprove it. The maxim is not a rule or law. It is a
rule of evidence benefiting the plaintiff by not requiring him to prove
negligence.
2. The maxim applies when—
1. the injurious agency was under the management or control of the
defendant, and
2. the accident is such as in the ordinary course of things, does not
happen if those who have the management use proper care.
3. The rule that it is for the plaintiff to prove negligence is in some
cases, of considerable hardship to the plaintiff, because it may be
that the true cause of the accident lies solely within the
knowledge of the defendant who cause it. The plaintiff can prove
the accident but he cannot prove how it happened so as to show
its origin in the negligence of the defendant. The hardship is
avoided to considerable extent by the maxim.
4. The rule of Rylands Verses Fletcher is not an illustration of the
principle of res ipsa loquitur. The liability arising out of the
principle can be repelled by proof that the defendant was not
negligent, whereas under the Rylands rule it is not defence to say
that defendant took every possible precaution to prevent the
escape of the injurious thing.
3. The principle of res ipsa loquitur has no application where the
circumstances in which the accident has taken place indicate that there
must have been negligence but do not indicate as to who was negligent

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or when the accident is capable of two explanations. Also, the maxim

does not apply when the facts are sufficiently known.
4. Res ipsa loquitur is a common sense approach, not limited by technical
rules, to the assessment of the effect of evidence in certain
circumstances. It means that a plaintiff prima facie establishes
negligence where,
1. it is not possible for him to prove precisely what was the relevant
act or omission which began the events leading to the accident,
but
2. on the evidence as it stands, in the absence of any evidence from
the defendant, it is more likely that the effective cause of accident
was some act or omission of the defendant.
Q. What are legal remedies and measure of damages ?

Or
Q. What are the different type of damages ?
Introduction
The Law of Torts is said to be a development of the maxim Ùbi jus ibi
remedium' (there is no wrong without a remedy). Where there is legal wrong
there is legal remedy.
Legal Remedy or Damages– Definition

A legal remedy, also judicial relief or a judicial remedy, is the means with which
a court of law, usually in the exercise of civil law jurisdiction, enforces a right,
imposes a penalty, or makes another court order to impose its will.
Thus legal remedies are remedies by way of action at law. The injured party
may institute a suit in a court of law and obtain redress. They are of three chief
kinds:
a) Damages and Awards,

b) Injunction and
c) Specified restitution of property.
Damages and Awards

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Damages are the pecuniary compensation which the law awards to a person
for the injury he has sustained by the wrongful act or omission of another.
They are not limited to the injuries which a person has actually sustained and
are designed not only as a satisfaction to the injured person, but likewise as a
punishment for the guilt to deter him from any such proceeding in the future.
Kinds of Damages
The term compensation is not ordinarily used as equivalent for damages. It is

used in relation to a lawful act which has caused injury.
The object of awarding damages is to place the injured party, so for as money
could do it, in the position which he could have occupied, if the wrong has not
been committed.
There are various kinds of damages, namely,
1. Nominal
2. Contemptuous,
3. Aggravated damages
4. Real or Substantial Damages
5. Exemplary or Punitive damages
6. General or Prospective damages
7. Un-liquidated damages
1. Contemptuous Damages :-
In contemptuous damages, Court recognises that the defendant is in fault, but

to show that the suit brought by the plaintiff is of such a trivial nature that it
has only wasted the time of the Court, the Court awards a meagre amount to
the plaintiff as damages. They are awarded usually in actions of defamation. in
nominal damages, the plaintiff suffers no actual loss but in contemptuous
damages, plaintiff suffers actual damage but it is trivial and does not deserve
to be fully compensated.
Illustration: If A’s dog enters B’s house and relieves himself and B accidentally
steps on it and is disgusted and thus, he brings a suit against A, the Court will
rule in B’s favour but because of such a trivial nature of this case the damages
awarded by the Court will be of a meagre amount.

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2. Nominal Damages :-
Nominal damages are those in which even though the plaintiff has suffered a
legal injury at the hands of the defendant, there is no actual suffered by him.
These damages are provided in the cases of Injuria sine damno in which the
Court recognises the violation of the right of the plaintiff but the amount of
damages are so nominal or low because of no actual loss to the plaintiff.
Nominal damages are recoverable only in cases of torts which are actionable
per-se. If such a right is violated the law presumes damages and an action will
lie even though no damage at all has in fact been suffered by plaintiff.
In the case of Constantine v. Imperial London Hotels Ltd., The plaintiff was a
cricketer from West Indies who had gone to the defendant hotel to stay but he
was rejected on the basis of his race, therefore, the plaintiff stayed at another
hotel and did not suffer any actual damage. In the case brought by him, the
defendant was held liable because the plaintiff’s legal right was violated
despite no actual injury happening and they had to pay nominal damages of
five guineas.
In the case of Ashby v. White (1703) 92 ER 126, the plaintiff was prevented
from voting by the defendant and the candidate for whom the plaintiff was
going to vote still won. The plaintiff sued the defendant. It was held that even
though no actual damage was suffered by the plaintiff, the defendant was still
liable for preventing him from exercising his legal right to vote and thus
nominal damages were awarded in this case.
3. Aggravated Damages
Aggravated damages are those reflecting the fact that a case has been
aggravated by one factor or another, usually for humiliation or distress caused
to the claimant.
Aggravating features can include
1. humiliating circumstances at the time of arrest or

2. any conduct of those responsible for the arrest or
3. the prosecution which shows that they had behaved in a high-handed,
insulting, malicious or oppressive manner either in relation to the arrest
or imprisonment or in conducting the prosecution..

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This can be seen in Appleton v Garrett [1996] 5 PIQR P1 where the court saw
fit to extend this category of damages to those emotions felt by the claimants
in the case at hand. Thus aggravated damages allow the court to take account
of abstract injury to the claimant’s feelings (as long as the claim itself is based
on something more concrete.)
4. Special Damages
The first category is special damages. That is, damages which can be specified
at the time of the trial (so damages for injuries or costs which take place pre-
trial). This also demonstrates the compensation principle - the relevant cost is
the one incurred, rather than the one that the claimant is entitled to. Thus the
maximum recoverable cost is that which is reasonable, or that which the
claimant incurred, whichever is less.
a) Loss of earnings before the trial

b) Pre-trial medical expenses.
5. Exemplary or Punitive Damages
Exemplary damages are awarded whenever the wrong or injury is of a grievous

nature, done with a high-hand, or is accompanied with a deliberate intention
to injure, or with words of contumely and abuse. For example - Gross
defamation, seduction of a man's daughter, malicious prosecution etc.
In Sitaram Bindraban Firm v. Governor General-in-Council, it was held that

such damages over and above the specific can be claimed if the conduct of the
defendant is wilful, malicious and negligent.
The object of awarding exemplary damages is to deter other persons from the
commission of a similar act.
In Rookes v. Barnard, it was laid down that exemplary damages can be

awarded in three cases.
a) Oppressive arbitrary or unconstitutional action by the Government

servants.

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b) Cases where the defendant's conduct has been calculated by him to

make profit for himself which may well exceed the compensation
payable to the plaintiff.
c) Where exemplary damages are expressly authorized by the Statute.
In Thompson v Metropolitan Police Commissioner [1998] QB 498, the court

ruled the defendant guilty of wrongful arrest and imprisonment, and awarded
exemplary damages to mark the jury’s disapproval of the oppressive or
arbitrary behaviour of the police.
6. General or Prospective damages
General damages are those which cannot be quantified at the time of trial, and
instead are more prospective in nature. The court will ask the claimant to
demonstrate what their likely future costs and losses are likely to be. Some
injuries are lifelong, and thus will have a lifelong cost. These are far more
difficult to quantify accurately. It should be noted that all of these calculations
will involve hypothetical assessments of an individual’s remaining lifespan,
which in itself is precarious.
a) Future loss of earnings forms a substantive part of general damages. A

claimant who cannot work at all will be able to recover their earnings for
the length of their future career, up until a likely retirement date.
b) Future medical expenses also come under this category, since they will
often be speculative.
c) Pain and suffering are a general damage, since they cannot be quantified
in an exact manner. Their exact calculation will depend on the claimant
and the manner of their injury. It should be noted that pain and suffering
is subjective.
d) Loss of amenity is also a type of general damage, referring to the
physical impairments (and loss of ability to undertake activities) that can
occur as the result of an acquired injury. Examples are loss of ability to
fish, loss of senses.
7. Un-liquidated damages
Un-liquidated damages are those damages which are not predetermined which
means the amount which has to be paid is not decided before the injury
happens to a person. Un-liquidated damages are awarded in cases of tort

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because often the parties to such a case do not know each other before the
commission of tort and therefore it is not possible for them to fix the amount
of compensation beforehand.
Illustration: A commits the tort of trespass in B’s property and B brings a suit
against him in the Court. Here the award of damages which B will receive will
be un-liquidated damages, as the amount of compensation will be determined
by the Court.
Q. What is remoteness of damage. Explain with cases

Remoteness of damage is the term that is used to indicate that although the
carelessness of a person has been a cause of the harm suffered by the plaintiff,
nevertheless the harm is so far removed, is so remote, from the wrongdoing
that the wrongdoer should not be legally liable for it. It is not for any harm that
has been caused by carelessness, that the careless person is liable. It is only for
that harm that is sufficiently close, or not too remote, that a careless person is
liable.
Test of direct consequence
Re. Polemis & Furness, Withy & Co.
1. Ship’s charter, and charterers had filled cargo hold with petrol. During
the voyage the cans leaked vapour, and when the ship reached the
harbour it was unloaded
2. Planks were positioned to walk over the opening of the hold, and one of
the dock workers (stevedores) negligently knocked it down into the hold
3. The plank falling caused a spark, which ignited the vapour, and the cans,
and burnt out the ship, causing £200k damage.
4. First instance: ship’s charterers could not reasonably have foreseen this
The Privy Council held that the damage as a direct result of negligence is
claimable even if they are not foreseeable. There was no requirement that the
damage of the kind was foreseeable. The defendant was liable for all the direct
consequences of their action. Further, the proximity of the act to the outcome
is close enough here to create a duty.

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This later evolved into the "remoteness doctrine" which has been applied in
two different contexts: attenuated harm cases and cases involving derivative
claims.
Overseas Tankship Ltd V Morts Dock & Engineering Co (The Wagon Mound 1)
(1961)
1. The defendants spilled furnace oil from their ship into Sydney harbour
2. The oil had a flashpoint of 170 degrees, and they believed it wouldn’t
burn on water
3. The claimants enquired as to whether it was safe to continue welding on
the wharf 200 yards away, and were given the answer yes
4. Two days later some molten metal spilled onto a cotton rag soaked in
oil, floating in the sea. It ignited and burnt down the claimant’s wharf
The Privy Council held that the defendants were not liable, as reasonable man
could not possibly have foreseen the wharf would be damaged in this way, as a
result of the defendant’s act. All the issues such as the flashpoint, were taken
into account. Polemis declared as no longer good law.
Overseas Tankship (UK) Ltd v Miller Steamship Co (The Wagon Mound No 2)

[1967] 1 AC 617.
In the second claim case of the owners of the ship against the OTD Ltd , was
raised in 1967.
Accordingly the Privy Council held that the owner of the tanker which had
carelessly discharged the furnace oil into the harbour was liable to the ship
owners since the damage to the ships by fire was reasonably foreseeable
Test of reasonable foreseeability evolved from the above 2 cases
1. Damages will be too remote when the damage suffered was not
'reasonably foreseeable' by the defendant.
2. Damage will be 'not reasonably foreseeable' if it was thought to be
physically impossible or so 'far-fetched' that a reasonable person would
completely disregard it.
3. It does not matter whether the actual harm (or the extent of it) was
foreseeable, as long as the type of harm was.

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4. Damages will be too remote, if avoiding the risk would have involved the
defendant in undue cost or required him to abstain from some
otherwise reasonable activity
UNIT IV
Q. Write about false imprisonment ?

False imprisonment is an intentional tort. A tort is a wrongful act that results in
harm to another. That harm can be a physical or psychological injury, or
damage to property. The type of tort is determined by the mental state of the
tortfeasor (the person committing the tort). Unlike torts that occur through car
accidents or slips and falls, intentional torts have nothing to do with negligence
or reckless behavior. Instead, intentional torts are acts committed with a
purpose -- with intent. The tortfeasor intentionally commits an act that causes
harm to another.
Definition
The commonly accepted definition of false imprisonment defines the tort as:
1. the intentional restraint of another person’s liberty, and freedom of

movement
2. against their will, and
3. for a short period, however short it may be
4. without legal justification.
Essential elements
1. Classification
1. Under criminal law, whether the restraint is total or partial, the
same is actionable.
(a) When the restraint is total and the person is prevented
from going out of certain circumscribed limits, the offence

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is that of ‘wrongful confinement’ as defined in Section 340

of IPC.
(b) Section 339 defines wrongful restraint, which is also a crime
under the I.P.C.
2. Under tort law, partial restraint is not a tortious liability, while
false imprisonment is a tort.
2. Intention of confinement
1. There should be a total restraint of the liberty of a person.
(a) The detention of the person may be either
1. actual, that is, physical, e.g. laying hands upon a
person; or
2. constructive, that is, by mere show of authority, e.g.
by any officer telling anyone that he is wanted and
making him accompany.
(b) In a facility setting, such as a nursing home or a hospital,
not allowing someone to leave the building is also false
imprisonment. If someone wrongfully prevents someone
else from leaving a room, a vehicle, or a building when that
person wants to leave, this is false imprisonment.
(c) Interfering with or obstructing an individual’s freedom to
go where she or he wishes does not constitute false
imprisonment. For example, if Bob enters a room, and Anne
prevents him from leaving through one exit but does not
prevent him from leaving the way he came in, Bob has not
been falsely imprisoned.
3. The period of confinement
1. The detention must be unlawful. The period for which the
detention continues is immaterial. But it must not be lawful.
4. Lawful justification
1. A law enforcement officer will not be liable for false arrest where
he or she has probable cause for an arrest. The arresting officer
bears the burden of showing that his or her actions were
supported by probable cause.
For example, if a police officer has learned that a man in his
forties with a red beard and a baseball cap has stolen a car. The

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officer sees a man matching this description on the street and

detains him for questioning about the theft. The officer will not be
liable for false arrest, even if it is later determined that the man
she stopped did not steal the car, since she had probable cause to
detain him.
2. When it comes to the police, proving false imprisonment is
sufficient to obtain the writ of Habeas Corpus.
5. Knowledge of the plaintiff
1. Knowledge of plaintiff is not necessary, since it is possible to
falsely imprison drunk, asleep or a person of unsound mind.Lord
Atkin has stated that in all such cases damages will be reduced
and such award of damages may be affected on whether the
plaintiff is conscious about it.
2. In the case
(a) In the case Meering v. Grahame , the plaintiff was held in a
room and questioned, because his employer, the defendant
thought him to be a thief. It was a false imprisonment. The
Court determined that, even though the plaintiff was
unaware that he was being falsely imprisoned, the
defendant acted in a way that clearly indicated that their
intention was to confine the plaintiff. So, the defendant was
held guilty of false imprisonment
3. In the case, Herring vs. Boyle, a schoolmaster wrongfully refused
to permit a school boy to go to with his mother unless the mother
paid an amount alleged to be due from him. The conversation
between the mother and schoolmaster was held in the absence of
the boy. The case was held not to be a case of false imprisonment
as the boy was not cognizant of his restraint that is he did not
know or was not aware of the fact that he was under detention.
However, in certain cases, it has been held that even in the
absence of the person’s knowledge that he has been held in
confinement, it shall still amount to false imprisonment.
6. Nature of confinement

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1. To constitute imprisonment the deprivation of the plaintiffs

liberty should be complete that is there must be on every side of
him a boundary drawn beyond which he cannot pass.
2. It is not imprisonment to prevent the plaintiff from going in
certain directions if he is free to go in other directions and thus
there will be no action for false imprisonment (Partial Restraint).
3. If a person has induced another to put himself or herself in a place
which is impossible to leave without such persons assistance, by
words or by other conduct, the refusal to give such assistance, of
for the purpose of detaining the other is a sufficient act of
confinement to make such person liable.
In the case of Bird v. Jones,
In August 1843 the Hammersmith Bridge Company cordoned off part of their
bridge, placed seats on it, and charged spectators for viewing a regatta. The
claimant objected to this and forced his way into the enclosure, where he was
stopped by two police officers, one being Jones. He was prevented from
proceeding across the bridge because he had not paid the admission fee, but
was allowed to go back the way he came. He refused, and in the course of
proceedings for his arrest the question arose whether he had been imprisoned
on the bridge.
Held: this was not an ‘imprisonment’ and the defendant was not liable for the
subsequent arrest.
In the case Bhim Singh vs. State of J&K
This case deals with the issue of illegally detaining an MLA by the name of
Bhim Singh by the police authorities in the state of Jammu and Kashmir. As per
the facts of the case, the former had been suspended from the J&K Assembly
on August 17, 1985 and had questioned the same in the High Court of the
state, which stayed the suspension in September. He was on his way to
Srinagar from Jammu on the intervening night of September 9-10, 1985. He
was arrested on his way by the police authorities and was taken away.

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The wife of Bhim Singh filed the application for the issue of the writ to direct
his release besides declaring his detention as illegal.
Defenses To Trespass To Person:
1. Consent Of Plaintiff
2. Contributory Negligence
3. Self-Defence
4. Prevention Of Trespass
5. Parental Authority
6. Statutory Authority
7. Necessity
8. Inevitable Accident
9. Preservation Of Public Peace
Q. Short notes in Assault and Battery

Introduction
Assault and battery are intentional torts, meaning they can serve as the basis
for a civil lawsuit demanding compensation in the form of money damages. But
in every state, assault and battery are also crimes, meaning that assault and
battery can also result in criminal liability.
Definition:
The act of putting another person in reasonable fear or apprehension of an

immediate battery by means of an act amounting to an attempt or threat to
commit a battery amounts to an actionable tort of assault
“Trespass to a person “ means Interference, however slight with a person’s

elementary civil right to security of person, and self-determination in relation
to his own body, constitutes trespass to person.
Essential elements
1. There must be an intention to assault

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1. Trespass may be done intentionally, deliberately or negligently.

The fundamental principle plain and incontestable law is that
every person’s body is inviolate.
2. Mere insulting or demeaning words don’t constitute an assault.
There needs to be the intent to inflict a physical force and must be
expressed as threatening acts , and not merely in the speech.
2. There must be a reasonable apprehension in the plaintiff
1. The apprehension must be genuine . If there is no reasonable fear
there is no assault.
(a) For example when a gun is pointed behind his back, then no
apprehension lies in this case. Thus, the plaintiff must have
the reason to believe that the defendant has capacity to
carry out the threat in near future
(b) If the defendant points a gun at the A, and the person A has
the knowledge that the gun is not loaded, then the tort of
assault does not exist.
3. Knowledge of the threat is essential for an assault
1. The intention as well as the act makes an assault. Therefore, if one
strikes another upon the hand, or arm, or breast in discourse, it is
no assault, there being no intention to assault; but if one ,
intending to assault, strikes at another and misses him, this is an
assault; so if he holds up his hand against another, in a
threatening manner, and says nothing, it is an assault
2. It does not matter whether the force is applied directly to the
human body itself or to anything coming in contact with it. Thus,
to throw water at a person is an assault; if any drops fall upon him
it is a battery.
3. Threats on telephone may be an assault provided the plaintiff has
reason to believe that they may be carried out in the sufficiently
near future. Malicious silent telephone calls also amount to
assault.
Stephen v. Myers:
In Stephen v Myers (1830), the Claimant was a chairman at a meeting sat at a

table where the Defendant was sat. There were six or seven people between

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the Claimant and Defendant. The Defendant was disruptive and a motion was
passed that he should leave the room. The Defendant said he would rather pull
the chairman out of his chair and immediately advanced with his fist clenched
towards the Claimant but was stopped by the man sat next to the chairman. It
seemed that his intention was to hit the Claimant. The defendant was liable for
assault.
Q. Battery
Introduction
Same as Assault. See above
Definition
Battery refers to the application of force intentionally done without any lawful
justification, which leads injury to another person.
Unlike assault, where mere threatening of a person leads to the filing of the
suit, the battery is the actual contact in an offensive manner without the
consent of the person. Many times, the battery is often preceded by the
assault that is why the term is often used in combined form i.e. assault and
battery.
Essential:
For proving the offense of Battery it is necessary that:-
1. Use of Force
For constituting battery against any person it is necessary that the there
should be the use of force. Even if the force used is not of that much
harmful but still, the force was used and therefore battery was committed.
Although there are also cases that where there is no direct injury is being
caused by physical touch but the force used is through indirect way i.e.
without any bodily contact with the aggressor. Like through use of the stick,
bullet, or by spitting on man’s face, pulling of chair etc. are some examples.
If the person gets physical injury due to the infliction of heat, light odour
etc. then also it can be termed as battery.

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However mere passive obstruction can’t be an offense of battery. Like in

the case of Innes vs. Wylie the policeman wrongfully restrains a person
from entering a club. It was held that if the policeman was entirely passive
like a door or a wall put to prevent someone from entering the premises,
there was no battery.
2. Without Lawful Justification
For the purpose of proving battery, it is always necessary that the force so
used should be unlawful and without any justification. Therefore if for
example, if two persons met each other on road and thereby passed silently
by having some physical contact then there can’t be the offense of battery.
But if they pass each other, and while crossing one of them started fighting
with other, then there is an offense committed of battery by the person
who has started the fight.
However, harm caused by accident and without intention is not actionable.

Like in the case of Stanley vs. Powell the defendant and plaintiff both were
from the shooting party. While the defendant fired at a pheasant the pellet
from his gun revered back from a tree and accidentally wounded the
plaintiff. It was held that the defendant was not held liable, as the act did
was neither intentional nor negligently done.
Q. Explain the tort of defamation with examples
Definition
Defamation is injury to the reputation of a person. If a person injures the

reputation of another he does so at his own risk, as in the case of an
interference with the property. A man’s reputation is his property, and if
possible, more valuable, than other property.
Any intentional false communication, either written or spoken, that harms a

person's reputation; decreases the respect, regard, or confidence in which a
person is held; or induces disparaging, hostile, or disagreeable opinions or
feelings against a person, is called defamation.

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Scrutton LJ defined a defamatory statement as ‘a false statement about a man

to his discredit’.
The main components of defamation are:
1. Statement- There must be a statement which can be spoken,

written, pictured or even gestured.
2. Publication- For a statement to be published, a third party must
have seen, heard or read the defamatory statement. If there is no
publication there is no injury of reputation and no action will
arise.
3. Injury- The above statement must have caused an injury to the
subject of the statement. It means that the statement must tend
to injure the reputation of a person to whom it refers.
4. Falsity- The defamatory statement must be false. If the statement
is not false then the statement will not be considered as
defamatory statement.
5. Unprivileged- In order for a statement to be defamatory, it must
be unprivileged. There are certain circumstances, under which a
person cannot sue someone for defamation.
Essential elements
Libel and slander are simply two different types of defamation; defamation is
the overarching tort, libel and slander are just two different ways of
committing that tort. They both remain privy to the general principles
governing the tort of defamation.
Libel
Libel refers to
1. Acts where permanent defamatory statements, such as that which is

written, broadcast, or otherwise performed;
2. The effect of the defamation must last longer than the time the original
message is communicated, but does not need to be permanent or
forever. Thus, the courts have gone as far as suggesting that skywriting

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can constitute libel since the writing takes time to disperse, as in Gulf Oil
(GB) Ltd v Page
3. Words are not necessary; it merely must be a type of visible, permanent
communication, which can be seen by the eye
4. If a statement is made about an individual which is true, but through
coincidence also applies to another individual for whom it is untrue,
then a claim will still exist. This is illustrated by Newstead v London
Express Newspaper Ltd
5. Intention to defame is not necessary.
6. Sometimes the statement may be prima facie innocent but because of
some latent or secondary meaning may be considered to be defamatory.
When the natural and ordinary meaning is not defamatory but the
plaintiff wants to bring an action of defamation, he must prove the
latent or secondary meaning. This is called the innuendo
a. In the Cassidy vs Daily Mirror Newspapers Ltd, the claimant was
known as the lawfully wedded wife of a famous race-horse owner
and former General of the Mexican Army. The claimant and her
husband lived separately but he often visited her at her
workplace. The defendant newspaper published a photograph of
the claimant’s husband with a woman labelled as Miss X, to whom
– as alleged by the attached article – he was engaged.The
claimant argued that the publication caused damage to her in that
it was intended to imply that her husband was living with her
immorally. The defendants denied any such intention and even
the possibility of their publication having such a meaning.
7. The defamation must have reached at least one more person other than
the claimant and the defendant.
8. Defamation may be a civil charge or a criminal charge under Section 499
and 500 of IPC.
1. Section 499 Of IPC:- Whoever by words either spoken or intended
to be read, or by signs or by visible representations, makes or
publishes any imputation concerning any person intending to
harm, or knowing or having reason to believe that such
imputation will harm, the reputation of such person is said to
defame that person.

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2. Section 500 of IPC:- Whoever defames another shall be punished

with simple imprisonment for a term which may extend to two
years or with fine or both.
Distinction between Libel and Slander
1. Libel is addressed to the eye while slander to the ear.

2. In English Criminal law, only libel has been recognized as an offence,
slander is no offence.
3. In Indian law, both are criminal offences under Section 499 and 500 of
IPC.
4. Under law of torts, slander is actionable and libel is actionable per se.
Defences available under defamation
The following are the defences taken in an action for defamation:-
1. Justification of truth-
If the defendant proves that the defamatory statement is true, no action

will lie for it, even if the statement is published maliciously. It is not
necessary to prove that the statement is literally true, it is sufficient if it is
true in substance.
2. Fair and bonafide comment-
A fair and bonafide comment on a matter of public interest is a defence in

an action for defamation. The essentials of a fair comment are:
1. That it is comment or criticism and not a statement of fact,

2. That the comment is on a matter of public interest,
3. That the comment is fair and honest.
3. Privileged statement-
One can defamation in certain instances when a statement is considered

privileged. Whether a statement is privileged or unprivileged is policy
decision that rests on the shoulders of the lawmakers.
Individuals in certain roles are protected from defamation claims. This takes
two forms;

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1. First being absolute privilege. This is enjoyed by Parliamentarians and

members of the judiciary.
2. Second is qualified privilege and covers situations in which an individual
is obliged morally or statutorily to communicate information. Whilst an
inaccurate reference can be damaging, it will not give rise to a
defamation claim here.
4. Honest Opinion (Or ‘Fair Comment’)
Honest opinion will not be considered defamation. The key to advancing

this defence is that the statement must be presented as opinion, rather
than fact, and that the statements made are ones which are actually
matters of opinion, rather than fact.
Q. What do you understand by the expression `Malicious Criminal

Prosecution' ? What facts have to be proved by plaintiff for claim damages
for `Malicious prosecution." ?
Q. What is difference between "Malicious Prosecution" and "False

imprisonment" ?
Malicious prosecution is the malicious institution of unsuccessful criminal or

bankruptcy or liquidation proceedings against another without reasonable or
probable cause. This tort balances competing principles, namely freedom that
every person should have in bringing criminals to justice and the need for
restraining false accusations against innocent persons. Malicious prosecution is
an abuse of the process of the court by wrongfully setting the law in motion on
a criminal charge. The foundation lies in the triangular abuse of the court
process of the court by wrongfully setting the law in motion and it is designed
to encourage the perversion of the machinery of justice for a proper cause the
tort of malicious position provides redress for those who are prosecuted
without cause and with malice. In order to succeed the plaintiff must prove
that there was a prosecution without reasonable and just cause, initiated by
malice and the case was resolved in the plaintiff’s favor. It is necessary to
prove that damage was suffered as a result of the prosecution.
In an action of malicious prosecution the plaintiff must prove:
1. That he was prosecuted by the defendant.

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2. That the proceeding complained was terminated in favour of the present

plaintiff
3. That the prosecution was instituted against without any just or
reasonable cause.
4. That the prosecution was instituted with a malicious intention, that is,
not with the mere intention of getting the law into effect, but with an
intention, which was wrongful in fact.
5. That he suffered damage to his reputation or to the safety of person, or
to security of his property.
Elements:
1. There must have been a prosecution initiated by the defendant.
The word ‘prosecution’ means a proceeding in a court of law charging a person

with a crime. To prosecute is to set the law in motion and the law is set in
motion only by an appeal to some person clothed. The person to be sued is the
person who was ‘actively instrumental in putting the law in force. The test is
not whether the criminal proceedings have reached a stage at which they may
be described as a prosecution, the test is whether such proceedings have
reached a stage at which damage to the plaintiff results. A mere presentation
of complaint to a magistrate who dismissed it on the ground that is disclosed
no offence may not be sufficient ground for presuming that damage was a
necessary consequence.
2. The plaintiff must prove that the prosecution ended in his favour.
The plaintiff has no right to sue before it is terminated and while it is pending.
The termination may be by an acquittal on the merits and a finding of his
innocence or by a dismissal of the complaint for technical defects or for non-
prosecution. If however, the plaintiff is convicted there is no right to sue and
will not be allowed to show that he was innocent and wrongly convicted.
3. Evidence of malice or improper motive
Malice for the purposes of malicious prosecution means having any other
motive apart from that of bringing an offender to justice. Spite and ill-will are
sufficient but not necessary conditions of malice. Malice means the presence
of some other and improper motive that is to say the legal process in question

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for some other than its legally appointed and appropriate purpose. Anger and
revenge may be proper motives if channelled into the criminal justice system.
The lack of objective and reasonable cause is not an evidence of malice but
lack of honest belief is an evidence of malice. Malice may be proved by
previously strained relations, unreasonable or improper conduct like
advertising of the charge or getting up false evidence.
5. Damages
It has to be proved that the plaintiff has suffered damages as a result of the
prosecution complaint of. Even though the proceedings terminate in favour of
the plaintiff, he may suffer damage as a result of the prosecution. The damages
may not necessarily be pecuniary. According to HOLT C.J., ‘classic analysis in
Savile v. Robert, there could be three sort of damages any one of which could
be sufficient to support any action of malicious prosecution.
1. The damage to a man’s fame as where the matter whereof he is accused

is scandalous.
2. The damage done to a person as where man is put to a danger of losing
his life, limb or liberty
3. The damage to a man’s property as where is forced to expend money in
necessary charges, to acquit himself of the crime of which he is accused.
The damage must also be the reasonable and probable results of malicious
prosecution and not too remote.
In the Kanta Prasad v National Buildings Constructions Corporation Pvt. Ltd.,

The officer of the respondent corporation found certain articles missing while
preparing inventory and checking up with the stock register. The plaintiff was
prosecuted under sec. 403 of the I.P.C. but was given the benefit of doubt and
hence acquitted. The plaintiff brought an action for malicious prosecution. The
plaintiff could not prove that he had been harassed by the officers. There was
held to be reasonable and probable case for prosecution of the plaintiff and
then fact that plaintiff was not harassed indicated that there was no malice
and hence the charge was not held.

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Q. Trespass to land or property
DEFINITION
Trespass to land or movable property occurs where a person directly enters

upon another's land without permission, or remains upon the land, or places
or projects any object upon the land.
This tort is actionable per se without the need to prove damage. By contrast,
nuisance is an indirect interference with another's use and enjoyment of land,
and normally requires proof of damage to be actionable.
THE WAYS IN WHICH TRESPASS MAY OCCUR
1. Entering upon land
Walking onto land without permission, or refusing to leave when permission

has been withdrawn, or throwing objects onto land are all example of trespass
to land.
For example, see Basely v Clarkson (1681) 3 Lev 37, below.
2. Trespass to the airspace
Trespass to airspace above the land can be committed. In Kelsen v Imperial

Tobacco Co [1957] 2 QB 334, D committed trespass by allowing an advertising
board to project eight inches into P's property at ground level and another
above ground level.
3. Trespass to the ground beneath the surface
In Bulli Coal Mining Co v Osborne [1899] AC 351, the Ds mined from their land
through to the P's land. This was held to be trespass to the subsoil.
4. POSSESSION OF LAND
This tort developed to protect a person's possession of land, and so only a

person who has exclusive possession of land may sue. Thus, a landlord of
leased premises does not have exclusive possession, nor does a lodger or a
licensee. However, a tenant or subtenant does. Where there is justification to

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enter it will not be treated as trespass-Madhav Vithal Kudwa v. Madhavdas

Vallabhdas.
5. CONTINUING TRESPASS
A continuing trespass is a failure to remove an object (or the defendant in

person) unlawfully placed on land. It will lead to a new cause of action each
day for as long as it lasts (Holmes v Wilson and others (1839) 10 A&E 503;
Konskier v Goodman Ltd [1928] 1 KB 421).
For example, in Holmes v Wilson and others (1839) the Ds built supports for a
road on P's land. The Ds paid damages for the trespass, but were held liable
again in a further action for failing to remove the buttresses.
6. MISTAKEN OR NEGLIGENT ENTRY
Trespass to land is an intentional tort. However, intention for the act is

required, not an intention to trespass. Consequently, deliberate entry is
required and lack of knowledge as to trespass will not be a defence (Conway v
George Wimpey & Co
a. Mistaken entry (Basely v Clarkson (1681) 3 Lev 37)
In Basely v Clarkson (1681) 3 Lev 37, the D owned land adjoining P's, and in
mowing his own land he involuntarily and by mistake mowed down some
grass on the land of P. P had judgment for 2s.
b. Involuntary entry (Smith v Stone (1647) Sty 65)
An involuntary trespass is not actionable: Smith v Stone (1647) Sty 65,

where D was carried onto the land of P by force and violence of others;
there was trespass by the people who carried D onto the land, and not by
D.
c. Negligent entry (League Against Cruel Sports v Scott.)
A negligent entry is possible and was considered in League Against Cruel

Sports v Scott. The Ps owned 23 unfenced areas of land. Staghounds used
to enter the land in pursuit of deer. The Ps sued the joint Masters of the
Hounds for damages and sought an injunction against further trespasses.
Park J issued an injunction in respect of one area restraining the defendants

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themselves, their servants or agents, or mounted followers, from causing or

permitting hounds to enter or cross the property. Damages for six
trespasses were awarded. The judge said:
"Where a master of staghounds takes out a pack of hounds and deliberately

sets them in pursuit of a stag or hind knowing that there is a real risk that in
the pursuit hounds may enter or cross prohibited land, the master will be
liable for trespass if he intended to cause the hounds to enter such land or
if by his failure to exercise proper control over them he causes them to
enter such land."
DEFENCES
Licence
A licence is a permission to enter land and may be express, implied or

contractual. If a licensee exceeds their licence, or remains on the land after it
has expired or been revoked, the licensee becomes a trespasser. Such a person
is allowed a reasonable time in which to leave. There is also the defence of
estoppel by acquiescence, that is, consent which is expressed or implied from
conduct, e.g. inactivity or silence.
Rights of entry
1. A person may exercise a lawful right of entry onto land, for example:
2. A private right of way granted to the defendant;
3. A public right of way;
4. A right given by the common law, such as the right to abate a nuisance;
and
Q. Short notes on Conversion

Conversion is a tort that exposes you to liability for damages in a civil lawsuit. It
applies when someone intentionally interferes with personal property
belonging to another person.
Definition
A conversion is an act, or complex series of acts, of wilful interference, without

lawful justification, with any chattel in a manner inconsistent with the right of
another, whereby that other is deprived of the use and possession of it.

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An act of conversion may be committed:
1. It is an intentional tort, as the word “wilful” specifies the nature of

intention of the person committing the tort.
2. The property is wrongfully taken or wrongfully parted with.
3. The property or chattel is wrongfully sold or retained.
4. The property is wrongfully destroyed.
5. When there’s a denial of the wrongful owner’s right.
To make out a conversion claim, a plaintiff must establish four elements:
1. First, that the plaintiff owns or has the right to possess the personal
property in question at the time of the interference;
2. Second, that the defendant intentionally interfered with the plaintiff's
personal property (sometimes also described as exercising "dominion
and control" over it);
3. Third, that the interference deprived the plaintiff of possession or use of
the personal property in question; and
4. Fourth, that the interference caused damages to the plaintiff.
The most direct and obvious way to commit conversion is by taking personal
property that belongs to someone else without permission. For example, if you
take a framed photograph from the wall of a local restaurant or a document
from someone's desk, you may be held liable for conversion, assuming you
retain the property for a substantial period of time and thereby interfere with
the rightful owner's use and possession of it. It does not matter whether you
intend to publish the information, photos, or other content.
Methods of Conversion or Trover
There are 6 types of methods:
1. When the movable property is wrongfully taken:
If the person wrongfully took the movable property of another, he can be

sued for conversion.
Illustration :

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1. If a person sees the branch of a tree of others garden overhanging in

his garden. He cut that extra part which was hanging in his area. Later
he ate all the fruits of that branch then he will be liable for
conversion. But if he returns the branch to the owner then he is not
liable.
2. If a person found some type of good on the street and refused to give
back to the owner as he has doubt about the ownership then he is
not liable for conversion, but if it is discovered that the person
demanding the property is the rightful owner and even then he
refused to give back the property to the owner then he will become
liable for conversion.
2. When movable property wrongfully sold:
A wrongful sale of the movable property is also considered as a conversion.
For example A deposit his good in C warehouse and ask to deliver them to D
and C’s servant delivered that goods to J, when D demands the goods from
A. thus C should be estopped from denying that he had the goods and is
liable to D for conversion of the good on which D has rightful possession.
A deposited his movable property in C’s warehouse and ask him to deliver
them to D. But C wrongfully sold it to Z, so here, C is responsible for the
wrongful sale of A’s movable property.
3. When movable property wrongfully detained:
When any person wrongfully detained the possession of the movable

property of another person then he is liable for conversion.
Illustration
If A gives his bike to V for repairing and later when A demand it back and
paid V for his service as well but, V denied, the denial of V results in
wrongful detention of good.
In Armory v. Delamirie , In this case, a sweeper boy, found a gold jewel in

the garbage. He went to a goldsmith, to sell the gold. The goldsmith in
order to take advantage of the boy’s immaturity told him that, it is not gold
and try to buy the gold from the boy in a nominal amount. The boy refused

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to sell and demanded the gold back. The goldsmith refused to give it back.
Thus, the boy approached the court and the court held the goldsmith liable
as he wrongfully detained the goods of the sweeper boy.
4. When movable property wrongfully destroyed:
When the person destroys the movable property of another person then he
is liable for conversion.
Illustration,
If A took the bottle of wine from C’s collection and destroy all the wine from
it and refill it with water that act of A is the act of conversion.
In the case Kanhaiyalal vs Badrilal And Anr, the plaintiff handed over one
she-buffalo with a calf and another she-buffalo to the defendant. And asked
the defendant to keep them safe and feed them from time to time. But
defendant failed to keep them safe and feed. And resulted in death of the
calf and both the buffaloes became weak. The plaintiff filed a case against
the defendant for damages. The court held the defendant guilty of trespass
to goods.
Remedies for the Tort of Conversion:
1. Re-caption:
A person is entitled to retake and possess his movable property, also

he can use reasonable force if necessary.
Illustration: if A took B’s watch and denied to give him back. B is

entitled to take the watch back from A and can use a reasonable
amount of force on A as well.
2. Order of Restoration:
The court can pass the order of restoration i.e. the court ask the
defendant to give the possession of the property to the original
owner.
Illustration: if Ram wrongfully and without the consent of Geeta take

her car for a ride. He likes that car and refuses to give it back to

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Geeta. Geeta can approach the court and as for the remedy. And if
Geeta successfully convinced the court that she has a legal right to
possess the car then court by passing the order of restoration
provides the remedy to Geeta.
3. Suits for Damages
If the property were destroyed or damaged by the defendant then

the plaintiff is entitled to receive full value of the good.
Illustration:
if A, a friend of B damaged B’s watch without his consent and now it

is impossible to repair that watch. So B can get the full value of that
watch from A.
Q. Short notes on Actio personalis moritur cum persona

"Actio personalis moritur cum persona" it means "A personal right of action
dies with the person".
Here the maxim ‘actio personalis moritur cum persona’ applies which
means if the person dies his personal right of action dies with him.
Actio personalis moritur cum persona this is the important maxim, it means
if the person who commits a tort or the person against whom the tort is
committed dies, the personal right or the right to receive the damages or
the right of action dies with the person.
There are two situations where this maxim applies
1. Death of the person against whom tort was committed i.e., Petitioner.
When the person against whom the tort was committed i.e. the plaintiff
who approached the court and filed a case died, so his personal right of
action dies with him only.
Illustration
If A files a case against the act of tort done by B. If A dies during the course
of trial and the case is still pending before the court. Due to the death of

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the A, the tort gets discharged, as the right of action of A dies with him
only.
1. Exceptions with respect to Petitioner
In India there are laws which constitute the exception to the above
maxim like;
As per The Legal Representative Suits Act, 1885 Act, the legal
representative or the executors of any person, after his death can
represent the deceased person in the court of law.
Illustration
If A died during the procedure of trial of court, his legal heir or

representative can represent him in the court of law.
Similarly, in different laws/act like Fatal Accidents act, the Indian

Succession Act, Workmen Compensation Act etc. the representative
of the plaintiff can represent him in the court of law.
2. Death of the person who commits tort i.e. Defendant
It means the person who commits the act of tort against any other person
i.e. the defendant dies, the tort gets discharged.
Illustration
If Ram commits the act of tort against Geeta, and Geeta files a complaint
against Ram, but if during the course of trial Ram died, then his right of
action also dies with him i.e. the discharge of tort.
In Prusti v. Mohanty
In this case, the defendant received some amount by misrepresentation of

fact, but the defendant died. The High Court of Orissa held that where a
money decree was passed against a person in respect of the amount
received by him from the decree-holder by misrepresentation of the facts,
the liability would be personal and could not be extended to his son under
the law, as whatever the relief a decree-holder has against the father ended
with the father’s death.

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1. Exceptions with respect to Defendant.
In India there are various laws which constitute the exception to the
above maxim like;
The Legal Representative Suits Act, 1885-
As per this act, if any person involved in any type of tortious act, died
during the course of the trial. The right of action passes to the legal
representative of that person.
Illustration
A does an act of trespass on the goods against B. If A dies and it is

proved that he was liable for damaging B’s goods, then the damages
have to be paid by A’s legal representative.
Similarly, in different laws/act like the Fatal Accident Act, Indian

Succession Act, Workmen Compensation Act etc. The representative
of the defendant has to represent him in the court of law

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UNIT V :
Reference : http://ncdrc.nic.in/bare_acts/1_1_2.html
Q. Define consumer as per Consumer Protection Act

The expression consumer is defined in S. 2(1)(d) of the Act. The definition of
the term 'consumer' given in clause (d) of section 2(1) of the Act is
comprehensive one so as to cover not only consumer of goods but also
consumer of services. The definition is wide enough to include in consumer not
only the person who buys any goods for consideration but also any user of
such goods with the approval of the buyer. Similarly, it covers any person who
hires or avails of any services for consideration and also includes any
beneficiary of such services, when availed with the approval of the hirer. Thus,
any user of goods or any beneficiary of services, other than the actual buyer or
hirer, is a consumer for the purpose of this Act and he is competent to make a
complaint before the Consumer Redressal Forum under this Act.
In addition, in the 2019 Amendment Act, certain new services and goods have
been added under the ambit of the Consumer Protection Act.
1. The definition of “consumer” includes those who make purchases

online.
2. Endorsement of goods and services, normally done by celebrities, are
also covered
3. In contrast to the 1986 Act, the definition of “goods” has been amended
to include “food” as defined in the Food Safety and Standards Act, 2006.
This would also bring the meteorically rising number of food delivery
platforms.
4. “telecom” has been added to the definition of “services” to bring
telecom service providers within the purvie. Such inclusion has not been
worded as “telecommunication service” defined under the Telecom
Regulatory Authority of India Act, which would have included internet,
cellular and data services.
5. “product liability” is also added whereby manufacturers and sellers of
products or services have been made responsible to compensate for any
harm caused to a consumer by defective products, manufactured or
sold, or for deficiency in services.

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6. “unfair contracts” is also added to protect consumers from unilaterally

skewed and unreasonable contracts which lean in favour of
manufacturers or service providers.
The Supreme Court in its decision in Lucknow Development Authority v. M. K.

Gupta [(1994) 1 SCC 243] noted that the word 'consumer' is comprehensive
expression.
1. It extends from any person who buys any commodity either as

eatable or otherwise from a shop, business house, corporation,
store, fair-price shop to use it for private use or consumption and
not for a commercial purpose.
2. The term 'consumer' also includes any person who uses the goods
with the permission of the buyer though he is not himself buyer.
Consumer of Goods
Under sub-clause (i) of section 2(1)(d), a consumer for the purpose of goods
means any person, who claiming himself as a consumer should satisfy that-
(i) there must be a sale transaction between the seller and the
buyer;
(ii) the sale must be of goods; the buying of goods must be for
consideration;
(iii) the consideration has been paid or promised or partly paid
and partly promised, or under anynsystem of deferred
payment; and
(iv) the user of the goods may also be a consumer when such
use is made with the approval of the buyer.
However, the term consumer does not include a person who obtains any
goods for resale or for any commercial purpose.
Consumer of Services
The second category of consumer laid down under the act is that of hirer or
user of services. Under sub-clause (ii) of Section 2(1)(d) of the Act, a consumer
for the purpose of services means any person, who In order to be a consumer
for the purpose of services, it is necessary that the services must have been

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hired or availed of for consideration. But it is not necessary to pay the

consideration immediately, it may be paid afterwards or in instalments. A
student hiring the services of the university on payment of fees for appearing
at the examination; or passenger getting railway reservation after payment is
hiring service for consideration, is a consumer of services.
Q. Short notes on
1. Goods
2. Complaint
3. Restrictive trade practices
Complaint
I. Restrictive Trade Practices:
Definition of Restrictive trade practices as defined in MRTP Act, Consumer

Protection Act and Competition Act are discussed below:
A. MRTP Act, 1969:
According to s. 2(o), RTP means any practice which has or may have the effect
of preventing, distorting or restricting competition in any manner. A practice
will be a RTP in the following cases:
1. when it tends to obstruct the flow of capital or resources into the

stream of production;
2. when it tends to bring about manipulation of prices, or conditions of
delivery or flow of supplies in the market relating to goods or services
in such manner so as to impose on the consumer unjustified costs or
restrictions.
The Supreme Court analysed the definition in the case of TELCO v Registrar of
the Restrictive Trade Agreements
1. It was held that definition is an exhaustive one and one of inclusion.

2. Whether a trade practice is restrictive or not can be decided by
applying Rule of Reason. Any restriction as to area or price will not be
per se a Restrictive trade practice.

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3. To determine whether a restriction regulates and promotes

competition or suppresses or destroy competition three matters are
to be considered.
(a) Firstly, what facts are peculiar to the business to which
the restraint is applied?
(b) Secondly, what was the condition before or after the
restriction is applied.
(c) Thirdly, what is the nature of the restraint and what is its
actual or probable effect.
The MRTP Act restricts such trade practices which
1. Agreements restraining goods being sold to specific persons or class

of persons or purchased from specific persons or class of persons
2. Agreements in restraint of trade
3. Agreements in fixation of prices
4. Agreements restricting supply of goods or services to specific places
5. Agreements prohibiting manufacture of specific goods or use of
specific equipment
6. Agreement to sell at prices so as to eliminate competition
7. Agreements restricting dealers or distributors from whom one can
purchase goods or services
8. Exclusion of persons from bids with reasonable cause
The Consumer Protection Act, 1986:
According to s. 2(nnn) of the Consumer Protection Act, 1986, restrictive trade

practice means a trade practice which
1. tends to bring about manipulation of price or conditions of delivery

or
2. to affect flow of supplies in market relating to goods or services in
such a manner as to impose on the consumers unjustified costs or
restrictions.
3. Such practices include delay beyond the period agreed by the trader
for supply of goods or in providing services which may have increased
the prices or

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4. is likely to increase the prices and any trade practice which requires a
consumer to buy, hire or avail of any goods or services as condition
precedent to buying, hiring or availing of other goods or services
Q.What are the salient features of Consumer protection Act, 1986 ?

Introduction
From 1930 to 1986 for 50 years, the Sale of Goods Act of 1930 [SGA] was the
exclusive source of consumer protection in India. The main protection for the
buyer against the seller for defective goods is found in Section 16[i] of the Act.
It provides exceptions to the principle of Caveat emptor (“let the buyer
beware”) and the interests of the buyer are sufficiently safeguarded. The skill
and judgment of the seller, reliance of consumer on sellers’ skill, and the test
of “merchantable quality” provide effective remedies to buyers.
With the passage of time of the Consumer Protection Act of 1986, was
designed to supplement the remedies already provided under the SGA.
Consumer protection was also provided within India’s criminal justice system.
The Indian Penal Code of 1860 has a number of provisions[ii] to deal with the
crimes against consumers. It deals with offenses which are related to the using
of false weights and measures, the sale of adulterated food and drinks, the,
and the sale of adulterated medicinal drugs.
The Indian legal system experienced a revolution with the enactment of

the Consumer Protection Act of 1986 which was specifically designed to
protect consumer interests. The Consumer Protection Act, 1986 was
established with the objective to provide justice which is less formal, and
involves less paper work, give justice in minimum delay and with incurring less
expense.
Salient features
a. The greatness of the Consumer Protection Act, 1986 is its easy-to-

understand legal framework, wide jurisdiction and inexpensive
justice. Consumer Protection Act, 1986 is made from different aspects of
law such as a mixture of principles of torts and contract could be found
in the Consumer Protection Act, 1986.

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b. Under the Consumer Protection Act, 1986 complain can be filled by any
of the party below i.e. Consumer groups, the central or any state
government. This liberalization shows the care that has been taken to
represent and fight for the cause of weak, indifferent and uneducated
consumers.
c. The novelty of the Consumer Protection Act, 1986 is the inclusion of

both goods and services within its jurisdiction. The consumer can bring a
suit for defective commodities as well as for deficiency of services. In
case of any deficiency, all services, whether provided by the government
or any private companies, can be questioned under the COPRA, 1986.
d. The Consumer Protection Act, 1986 also liberalized rigid procedural
requirements and introduced simple and easy methods of access to
justice. To proceed under the Consumer Protection Act, 1986, the
consumer need only pay a nominal fee and need not to send any notices
to the opposite party. A normal letter addressed to the consumer forum
draws enough attention to initiate legal action.
e. Another major procedural flexibility is the option that the consumer

need not pay a lawyer. If the consumer prefers, he can represent
himself. These simple measures of action drive consumers to avail
themselves of the benefits of the Consumer Protection Act, 1986.
f. The Consumer Disputes Redressal agencies, the National Commissions,
the State Commission, and the District Forum are working together in a
way that is revolutionizing the present Indian legal system and
challenging the traditional system of delivering justice.
g. The provisions of the Act are compensatory in nature.
h. With easy access to the courts guaranteed by the Consumer Protection
Act, 1986, consumers now wage legal battles against unscrupulous
traders or service providers without any hesitation.
i. The Act also provides for setting up of Consumer Protection Councils at
the Central, State and District levels, which are set up as advisory bodies
to promote and protect the rights of the consumers.
The Indian government is also taking an active interest in protecting consumer

rights and promoting effective consumer movements. In 2003, the Planning

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Commission of India identified “Consumer Awareness, Redressal, and

Enforcement of the Consumer Protection Act of 1986[iv]” as a priority, and as a
result of this, a national action plan was prepared. The consumer forum
created by the Consumer Protection Act, 1986 have proven to be efficient,
disposing of thousands of cases with few legal formalities, and leading the way
toward well-founded consumer jurisprudence in India.
Consumer Protection Act is amended by Act no.34 of 1991, Act no.50 of 1993
and Act no.62 of 2002. Amendment made in 1991 was mainly to incorporate
provisions for the quorum of District Forum, appointing people to preside over
State Commissions/District Forums, in case of absence of President to enable
the court function uninterruptedly. In 1993, the Act was again amended to
address the inadequacies in the coverage of the main Act. It aimed to plug
loopholes and enlarge the scope of areas covered and interest more power to
the redressal agencies under the Act.
In 2002, the Act was again amended to facilitate quicker disposal of

complaints, boosting the capability of redressal agencies, powering them,
streamlining the procedure and widening the scope of the Act to make it more
functional and efficient.
The main objectives of the Consumer Protection (Amendment)[v] Bill, 2011

are:-
a. Widening the scope and amplifying the provisions of the Act.

b. Facilitating quicker disposal of complaints.
c. Rationalizing the qualifications and procedure of selection of the
Presidents and Members of Consumer Forum.
d. Strengthening penal provisions/enforcement orders of Consumer
Forum.
The Standing Committee Report[vi] on Consumer Protection (Amendment) Bill,

2011 observed that a cooperative approach between Central and State
Governments will result in the uniform implementation of consumer
protection laws and rules across all jurisdictions. A need for updating of the
quality of goods and standards of services provided to consumers so as to
conform to the international standard is also stressed upon.

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It also draws attention towards a strong need to spread awareness in order to

educate the consumer about their rights as provided under the Act. Committee
recommended that Consumer Forum should be given the power to grant
punitive damages of not less than five times of the loss or compensation
awarded to an aggrieved consumer by the defaulting Companies.
Q. What is deficiency in service ?
Section 2(1)(g) of the Act provides that, “deficiency” means
a. any fault,
b. imperfection,
c. shortcoming or
d. inadequacy in the quality, nature and manner of performance which is
required to be maintained by or under any law for the time being in
force or
e. has been undertaken to be performed by a person in pursuance of a
contract or otherwise in relation to any service.
Reading the above definition by breaking it into elements, we get—
a. “deficiency” means any fault, imperfection, shortcoming or inadequacy

in the quality, nature and manner of performance
Examples :
1. A boarded a train. The compartment in which he and his wife travelled
was in a bad shape-fans not working, shutters of windows were not
working, rexin of the upper berth was badly torn and there were rusty
nails which caused some injuries to the wife of A. A made a complaint
against the railway department. It was held that the complaint
constituted ‘deficiency in service’ and the compensation of Rs. 1500 was
awarded to A - General Manager, South Eastern Railway v. Anand Prasad
Sinha I [1991] CPJ 10 (12) NC.
2. Dr. A treated P under Allopathic system, though he himself was a
Homoeopathic practitioner. Later on P allegated A for wrong treatment.
The Commission held it as deficiency in service - Poonam
Verma v. Ashwin Patel [1996] II CPJ 1 SC.

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3. A booked a car for B and promised to deliver it within one month of

booking. The car was not delivered even after four months. Here A could
be held liable for deficiency in service.
i) Deficiency in service should occur during the happening of

performance. Thus it is crucial to determine when the performance of
a service commenced.
Example : A contracted with B to supply, erect and commission cold
rolling mill. A supplied the mill, but failed to erect and commission the mill.
B filed a suit alleging deficiency of service on A’s failure to elect and
commission the mill. The National Commission observed that the deficiency
must pertain to performance of service. Since A never started erecting and
commissioning the mill, the question of performance did not arise. Thus the
case is not that of deficiency of service - Jaipur Metals & Electricals
Ltd. v. Laxmi Inds.
ii) The promised quality and manner of performance of service should

have been required to be maintained under any law in force or in
pursuance of a contract or otherwise.
Example : A, the builder, promised under written agreement to
provide a flat to B. Subsequently he expressed his inability to give
possession of the flat and entered into a fresh agreement to pay Rs.
9,51,000 to B in place of flat. A didn’t even pay this money. B sued A. The
Commission held that since A had not even paid the money as per
subsequent contract, the rights of earlier contract can be involved by B. And
that there was a deficiency of service on the part of builders - Lata Con-
struction v. Dr. Rameshchandra Ramniklal Shah
iii) The deficiency must be in relation to a service

The words ‘....in relation to any service’ in the definition signifies that the
deficiency is always in terms of service. Thus if the grievance pertains to a
matter which does not fall in the definition of service, the concept of
deficiency would not apply.
Example : A deposited Rs. 100 with B as application fee and executed

bond for the purpose of drilling tubewell. B did not drill the tubewell
because it was not feasible. A alleged deficiency in service. It was held that

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depositing Rs. 100 as application fee and executing a bond does not amount
to hiring of services, thus the deficiency of service cannot be complained of
in the matter - Mangilal v. Chairman District Rural Development Agency
iv) Deficiency in service due to circumstances beyond control

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

power grid failure of the State, A could not get sufficient power to perform
the service. Here A cannot be held liable for deficiency in service.
However, negligence on the part of performer may not be excused under

the cover of circumstances beyond control.
Q. What are the basic consumer rights ?
Every year 15th March is observed as "World Consumer Rights Day". It

commemorates a historic declaration (1962) by former US President John F.
Kennedy of four basic consumer rights:
 The right to safety

 The right to be informed
 The right to choose
 The right to be heard
The basic Consumer Rights are-
I. Right to Safety- This right safeguard consumer against the marketing of

goods and services, which can be hazardous to life and property.
II. Right to information– This right means right to be informed about the
quality, quantity, purity, standard and the price of goods so as to protect
the consumer against unfair trade practices. The key features are:
1. The right to be given the facts needed to make an informed
choice, to be protected against false advertising or labeling.

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2. The responsibility to search out and use available information.

3. To read and follow labels and research before purchase. Without
information on quality, quantity, potency, purity, standard and
price of goods and services, consumers would not be able to make
the right decisions and protect themselves from abusive practices.
III. Right to Choose– Under this right the consumer is assured to variety of
goods and services at competitive prices. In the case of a monopolistic
market, the consumer have right to get satisfactory quality and service
at a nominal price. It also includes right to basic goods and services. In
spite various legislation, the right to choice of the Indian consumer is not
been able to be achieved. At the micro level, the individual is duped
each and every day by dishonest traders, forced and cheated into buying
items she/he does not require as part of tied- selling, and cheated by
wrong weights and poor quality. Consumers in many parts of the
country are deprived of their basic rights such as supply of electricity,
good roads, proper transport and other public services and utilities.
IV. Right to be heard/represented- This right means that consumer’s
interests will receive utmost importance by simple and speedy trial with
due consideration at appropriate fora. It also includes the right to be
represented in various fora formed to consider the consumer’s welfare.
In addition, the following rights are also considered consumer rights
V. Right to Redress– It includes right to a fair settlement of the genuine

grievances of the consumer. Consumers must register a complaint about
their genuine grievances. Many times, the complaint may be of small
value but its impact on the society, as a whole, may be very large. The
key aspects are: The right to be compensated for misrepresentation,
false goods or unsatisfactory services. The responsibility to fight for the
quality that should be provided.
VI. Right to Consumer Education-This right contains the provision to
acquire knowledge and skills needed to make well informed and
confident choices about goods and services, and at the same time being
aware of basic consumer rights and responsibilities and how to act on
them. The right to acquire the knowledge and skills necessary to be an
informed consumer.

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VII. Right to Basic Needs- The basic needs include goods and services such
as adequate and proper food, pure drinking water, shelter, clothing,
health care, and education. These rights are the need of individual today
and are a symbol of dignity. The following needs constitute the
inalienable right to basic needs: food; clothing; healthcare; drinking
water and sanitation; shelter; education; energy; and transportation.
VIII. Right to Healthy Environment- It includes the right to live and work in
such an environment, which is safe for the well-being of the present and
future generations.
Q. Discuss the composition, jurisdiction, and appointment of the
1. District Commission
2. State Commission
3. National Commission
Under the Consumer Protection Act, no Court fee has to be paid and the
decision on the complaint is more quicker, as the court can evolve a summary
procedure in disposing of the complaint. Under the Act, the Consumer
Disputes Redressal agencies, which have been set up are:
1. Consumer Disputes Redressal Forum to be known as District Commission

at District level.
2. Consumer Disputes Redressal Commission to be known as State
Commission in each State
3. National Consumer Disputes Redressal Commission known as National
Commission
District forum has been replaced by District Commission in the Consumer

Protection (Amendment ) Act, 2019.
District Forum Composition of the District Forum (Section 10)
Each District Commission shall consist of the following :
(a) a person who is, or has been, or is qualified to be a District Judge, who
shall be its President;
(b) two other members, one of whom shall be a woman, who shall have the
following qualifications, namely :-

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(i) be not less than thirty-five years of age,

(ii) possess a bachelor’s degree from a recognized university,
(iii) be persons of ability, integrity and standing, and have
adequate problems relating to economics, law, commerce,
accountancy, industry public affairs or administration
Provided that a person shall be disqualified for appointment as a member, if

he-
(a) has been convicted and sentenced to imprisonment for an offence

which, in the opinion of the State Government, involves moral turpitude;
or
(b) is an un-discharged insolvent; or
(c) is of unsound mind and stands so declared by a competent court; or
(d) has been removed or dismissed from the service of the Government or a
body corporate owned or controlled by the Government; or
(e) has, in the opinion of the state Government, such financial or other
interest as is likely to affect prejudicially the discharge by him of his
functions as a member; or
(f) has such other disqualifications as may be prescribed by the State
Government.
Method of appointment
Every appointment under sub-section (I) shall be made by the State

Government on the recommendation of a selection committee consisting of
the following, namely :-
(i) President of the State Commission - Chairman.

(ii) Secretary, Law Department of the State - Member.
(iii) Secretary, in-charge of the Department - Member dealing with
consumer affairs in the State
Provided that where the President of the state Commission is, by reason of
absence or otherwise, unable to act as Chairman of the Selection Committee,
the State Government may refer the matter to the Chief Justice of the High
Court for nominating a sitting Judge of that High Court to act as Chairman.
Terms of Office and Salary

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(i) Every member of the District Commission shall hold office for a term
of five years or 65 years, whichever is earlier.
(ii) A qualified and approved member shall be eligible for re-
appointment for another term of five years or up to the age of sixty-
five years, whichever is earlier
(iii) Person appointed as the President or as a member, before the
commencement of the Consumer Protection (Amendment) Act,
2002, shall continue to hold such office as President or member, as
the case may be, till the completion of his term.
(iv) The salary or honorarium and other allowances members of the
District Commission shall be prescribed by the State Government.
Jurisdiction of the District Forum (Section 11)
Subject to the other provisions of this Act, the District Commission shall have
Pecuniary Jurisdiction:
The District Consumer Dispute Redressal Commission has the pecuniary

jurisdiction of up to an amount that does not exceed 1 crore.
Territorial Jurisdiction:
Territorial jurisdiction is to be taken into consideration after establishing

pecuniary jurisdiction. A complaint may be filed in the court that is within
those local limits where;
(i) When the opposite party voluntarily resides in or works in those local
limits.
(ii) Where the cause of action arises from.
(iii) Complainant resides or personally works for gain.
To determine where the cause of action arises you can apply the same laws
applicable to contract law.
Territorial jurisdiction when a transaction was done online.
(i) Transactions done online effectively negates territorial jurisdiction. In

this case, territorial jurisdiction is in any of the multiple places the
cause of action arises, which also includes where the appellant
resides.

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Appellate Jurisdiction:
If a consumer is not satisfied by the decision made by the district commission

they may make an appeal to the State commission, within 30 days of the order
of the District Commission.
In Kurukshetra University v. Vinay Prakash Verma, (1993) CPJ 647, it was held
that objection & regarding territorial jurisdiction should be taken at the earliest
opportunity or the same deemed to have been waived.
b. State Commission
Composition of the State Commission (Section 16)
Each State Commission shall consist of:
(a) a person who is or has been a Judge of a High Court, appointed by the
State Government, who shall be its President
(b) two other members, one of who shall be a woman, who shall have the
following qualifications, namely:-
(i) be not less than thirty-five years of age;
(ii) possess a bachelor’s degree from a recognized university; and
(iii) be persons of ability, integrity and standing, and have
adequate knowledge and experience of at least ten years in
dealing with problems relating to economics, law, commerce,
accountancy, industry, public affairs or administration:
(iv) The number of members of judicial background shall not
exceed fifty percent.
Every appointment under Sub-section (1) shall be made by the State

Government on the recommendation of a Selection Committee consisting of
the following members, namely:-
(i) President of the State Commission -Chairman.

(ii) Secretary of the Law Department of the State -Member.
(iii) Secretary, in-charge of Department dealing with consumer affairs in
the State -Member.
Provided that where the President of the State Commission is unable to act as
Chairman of the Selection Committee, the Chief Justice of the High Court can

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nominate a sitting Judge of that High Court to act as Chairman, on advise of the
State Govt.

he-

or
(e) has, in the opinion of the state Government, such financial or other
(f) has such other disqualifications as may be prescribed by the State
Government.
(ii) Every member of the State Commission shall hold office for a term of
five years or 67 years, whichever is earlier.
(iii) A qualified and approved member shall be eligible for re-
seven years, whichever is earlier
(iv) Person appointed as the President or as a member, before the
(v) The salary or honorarium and other allowances members of the State
Commission shall be prescribed by the State Government.
Jurisdiction of the State Commission (Section 17)
Subject to the other provisions of this Act, the State Commission shall have
(i) Pecuniary Jurisdiction:

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The State Consumer Dispute Redressal Commission has the pecuniary

jurisdiction of up to an amount that does not exceed 1 crore.
(ii) Appellate Jurisdiction:
If a consumer is not satisfied by the decision made by the State
Commission they may make an appeal to the National Commission,
within 30 days of the order of the National Commission.
In Kurukshetra University v. Vinay Prakash Verma, (1993) CPJ 647, it

was held that objection & regarding territorial jurisdiction should be
taken at the earliest opportunity or the same deemed to have been
waived.
(iii) Revisional jurisdiction :
To call for records and pass appropriate orders in any consumer
dispute, which is pending before or has been decided by any District
commission, within the State, where the District Commission
(i) has exercised a jurisdiction not vested in it by law
(ii) has failed to exercise a jurisdiction so vested
(iii) has acted in exercise of its jurisdiction illegally or with
material irregularity.
(iv) Transfer of cases
On an application of complainant or on its own motion, the State
commission may, transfer any case from any District Commission to
another District Commission within the State
(v) Writ jurisdiction
The Consumer Protection Act provides alternate remedy for
consumers in terms of appeal to State Commission and National
Commission. So, the High Court or Supreme Court would not admit
writs on orders passed by sub-ordinate consumer forums like State or
District Commission, unless it was proved that the State Commission
or National Commission did not exercise their revisional jurisdiction,
against any such complaint.
(vi) Establishment of benches
In addition, the State Commission can setup Benches, where the
bench may exercise the jurisdiction, powers and authority of the
State commission. The State Commission ordinarily functions in state

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Capital, but may perform its function in any other place, by the
setting up of Circuit benches to provide convenience to litigants.
c) National Commission
Composition of the National Commission (Section 20)
Each National Commission shall consist of:
(c) a person who is or has been a Judge of a Supreme Court, appointed by

the Central Government, who shall be its President
(d) Not less than four other members, one of who shall be a woman, who
shall have the following qualifications, namely:-
(v) be not less than thirty-five years of age;
(vi) possess a bachelor’s degree from a recognized university; and
(vii) be persons of ability, integrity and standing, and have
adequate knowledge and experience of at least ten years in
dealing with problems relating to economics, law, commerce,
accountancy, industry, public affairs or administration:
(viii) The number of members of judicial background shall not
exceed fifty percent.
Every appointment under Sub-section (1) shall be made by the Central

Government on the recommendation of a Selection Committee consisting of
the following members, namely:-
(iv) A person who is a judge in the Supreme Court, to be nominated by

the Chief Justice of India -Chairman.
(v) Secretary of the Law Department of the Central Govt -Member.
(vi) Secretary, in-charge of Department dealing with consumer affairs in
the Central Govt -Member.
Provided that where the President of the National Commission is unable to act
as Chairman of the Selection Committee, the Chief Justice of the Supreme
Court can nominate a sitting Judge of that Supreme Court Court to act as
Chairman, on advise of the State Govt.

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he-

or
(e) has, in the opinion of the Central Government, such financial or other
(f) has such other disqualifications as may be prescribed by the Central
Government.
(vi) Every member of the National Commission shall hold office for a term
of five years or 67 years, whichever is earlier.
(vii) A qualified and approved member shall be eligible for re-
seven years, whichever is earlier
(viii) Person appointed as the President or as a member, before the
(ix) The salary or honorarium and other allowances members of the
National Commission shall be prescribed by the Central Government.
Jurisdiction of the National Commission (Section 21)
Subject to the other provisions of this Act, the District Commission shall have
(vii) Pecuniary Jurisdiction:

The District Consumer Dispute Redressal Commission has the
pecuniary jurisdiction of up to an amount that does not exceed 1
crore.

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(viii) Appellate Jurisdiction:
If a consumer is not satisfied by the decision made by the State

Commission they may make an appeal to the National Commission.
In Kurukshetra University v. Vinay Prakash Verma, (1993) CPJ 647, it

was held that objection & regarding territorial jurisdiction should be
taken at the earliest opportunity or the same deemed to have been
waived.
(ix) Revisional jurisdiction :
To call for records and pass appropriate orders in any consumer
dispute, which is pending before or has been decided by any District
commission, within the State, where the District Commission
(iv) has exercised a jurisdiction not vested in it by law
(v) has failed to exercise a jurisdiction so vested
(vi) has acted in exercise of its jurisdiction illegally or with
material irregularity.
(x) Transfer of cases
On an application of complainant or on its own motion, the State
commission may, transfer any case from any District Commission to
another District Commission within the State
(xi) Writ jurisdiction
An appeal of the orders of the National Commission can lie with the
Supreme Court, under Section 21(a)(i), within 30 days of the order of
the National Commission.
(xii) Establishment of benches
In addition, the National Commission can setup Benches, where the
bench may exercise the jurisdiction, powers and authority of the
State commission. The National Commission ordinarily functions in
India’s Capital, but may perform its function in any other place, by
the setting up of Circuit benches to provide convenience to litigants.
(xiii) Power to set aside ex parte orders
When an order is passed by the National Commission ex-parte
against the opposite party, the aggrieved party may apply to the
Commission to set aside the order in the interest of Justice.

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Q. Provision related to appeals in the Consumer Protection Act

Appeals may be done on orders of District, State and National Commission, to
the next higher commission, or to the High Court or the Supreme Court under
specific circumstances. The appeal process for the National Commission is
Appeals of orders of National Commission in Supreme Court (Section 23)
Any person, aggrieved by an order made by the National Commission in

exercise of its powers conferred by sub-clause (i) of clause (a) of section 21,
may prefer an appeal against such order of the Supreme Court within a period
of thirty days from the date of the order:
Provided that the Supreme Court may entertain an appeal after the expiry of
the said period of thirty days if it is satisfied that there was sufficient cause for
not filing it within that period.
Appeals of orders of State Commission in National Commission (Section 19)
Any person aggrieved by an order made by the State Commission in exercise

of its powers conferred by sub-clause (i) of clause (a) of section 17 may prefer
an appeal against such order to the National Commission within a period of
thirty days from the date of the order in such form and manner as may be
prescribed.
Provided that the National Commission may entertain an appeal after the
expiry of the said period of thirty days if it is satisfied that there was sufficient
cause for not filing it within that period.
Appeals of orders of District Commission in State Commission (Section 15)
Appeal (Section 15) Any person aggrieved by an order made by the District
Forum may prefer an appeal against such order to the State Commission within
a period of thirty days from the date of the order, in such form and manner as
may be prescribed:
Provided that the State commission may entertain an appeal after the expiry of
the said period of thirty days , if it is satisfied that there was sufficient cause
for not filing it within that period.

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In the case, General Manager, Telecom v. Jyantilal Hemchand Gandhi, 1993 (III)
CPR 155. it was held that the appellate fora constituted under the Act should
not dismiss the appeal merely on the ground of default of appearance of the
appellant but the merits of the case should be considered on the basis of the
material available before them and thereafter pass appropriate order in the
appeal;
Q. What is a consumer dispute ?

Or
Q. What is a Complaint ?
As an introduction, consumer rights are those rights belonging to a consumer
that to protect him/her from being cheated by a salesman/manufacturer. The
Consumer Protection Laws of India ensure fair trade and well-being of the
consumer in the market. A consumer can be defined as a person who purchase
goods or services for his own use and to resell or use such goods in production
and manufacturing.
According to Section 2(1)(e) of the Consumer Protection Act, ‘ a Consumer

Dispute’ means a dispute where a person against whom a complaint has
been made, denies or disputes the allegations contained in the complaint. If
the other party agrees to the complaint, dispute ceases.
“Complaint” under Section 2(6) means any allegation in writing, made by a

complainant for obtaining any relief provided by or under this Act, that relating
to
(a) violation of consumer rights or

(b) unfair trade practices adopted by any trader or service provider
(c) false or misleading advertisements which are prejudicial to the interests
of consumers as a class,
(d) claim for a product liability action resulting from any harm caused to a
consumer by such defective product manufactured or sold
(e) defective goods bought by him or agreed to be bought by
(f) the services hired or availed of or agreed to be hired
(g) Charges levies for the goods or for services, in excess of those fixed by or
under any law for the time being in force; or those displayed
(h) Goods or services which are hazardous for life and safety

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A complaint may be may be forwarded either in writing or in electronic mode,

to any one of the authorities, namely, the District Collector or the
Commissioner of regional office or the Central Authority
Often, we come across situations where a particular company make various

promises in order to sell products but seldom fail to keep such promises. For
example, x purchases a mixer grinder from M/s Y & Co. operating in the same
town. The grinder malfunctions within the warranty period of 1 year. Both the
manufacturer and the seller failed to rectify mixer grinder.
Q. Who can file a complaint under CPA Act ?

Who can file a complaint [Sections 2(b) & 12] - At the outset it is clear that a
person who can be termed as a consumer under the Act can make a complaint.
To be specific on this account, following are the persons who can file a
complaint under the Act :
(a) a consumer; or
(b) any voluntary consumer association registered under the Companies
Act, 1956 or under any other law for the time being in force, or
(c) the Central Government or any State Government,
(d) one or more consumers, where there are numerious consumers having
the same interest.
In addition to the above following are also considered as a consumer and
hence they may file a complaint :
1. Beneficiary of the goods/services : The definition of consumer itself

includes beneficiary of goods and services - K.B.Jayalaxmi v. Govt of
Tamil Nadu 1994(1) CPR 114.
2. Where a young child is taken to the hospital by his parents and the child
is treated by the doctor, the parents of such a minor child can file a
complaint under the Act - Spring Meadows Hospital v. Harjot Ahluwalia.
3. Legal representative of the deceased consumer : The Act does not
expressly indicate that the LR of a consumer are also included in its
scope. But by operation of law, the legal representatives get clothed
with the rights, status and personality of the deceased. Thus the
expression consumer would include legal representative of the deceased
consumer and he can exercise his right for the purpose of enforcing the

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cause of action which has devolved on him - Cosmopolitan

Hospital v. Smt. Vasantha P. Nair (1) 1992 CPJ NC 302.
4. Legal heirs of the deceased consumer : A legal heir of the deceased
consumer can well maintain a complaint under the Act - Joseph Alias
Animon v. Dr. Elizabeth Zachariah (1) 1997 CPJ 96.
5. Husband of the consumer : In the Indian conditions, women may be
illiterate, educated women may be unaware of their legal rights, thus a
husband can file and prosecute complaint under the Consumer
Protection Act on behalf of his spouse - Punjab National Bank,
Bombay v. K.B. Shetty 1991 (2) CPR 633.
6. A relative of consumer : When a consumer signs the original complaint,
it can be initiated by his/her relative - Motibai Dalvi Hospital v. M.I.
Govilkar 1992 (1) CPR 408.
7. Insurance company : Where Insurance company pays and settles the
claim of the insured and the insured person transfers his rights in the
insured goods to the company, it can file a complaint for the loss caused
to the insured goods by negligence of goods/service providers. For
example, when loss is caused to such goods because of negligence of
transport company, the insurance company can file a claim against the
transport company - New India Assurance Company Ltd. v. Green
Transport Co. II 1991 CPJ (1) Delhi.
Q. What is the State Consumer Protection Council ?

The Consumer Protection Act postulates establishment of Consumer
Protection Councils at the Central (Section 3) and State (Section 6) and District
level (Section 8) for the purpose of spreading consumer awareness. The
objects of the Councils, as per the Act, shall be to promote and protect the
rights of the consumers such as:
(a) The right to be protected against the marketing of goods and services
which are hazardous to life and property
(b) The right to be informed about the quality, quantity, potency, purity,
standard and price of goods or services, as the case may be so as to
protect the consumer against unfair trade practices;

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(c) The right to be assured, wherever possible, access to a variety of goods

and services at competitive prices;
(d) The right to be heard and to be assured that consumer's interests will
receive due consideration at appropriate forums
(e) The right to seek redressal against unfair trade practices or restrictive
trade practices or unscrupulous exploitation of consumers and
(f) The right to consumer education.
Central Consumer Protection Council

The Consumer Protection Act empowers the Central Government to establish a
Central Consumer Protection Council consisting of
(a) the Minister in charge of consumer affairs in the Central Government as

its Chairman and
(b) Such number of other official and non-official members representing
such interests as may be prescribed.
Essential elements
1. Under the Consumer Protection Council Rules 1987, the membership of

the Council is restricted to 150 members including the Central Minister
in charge of Consumer Affairs as the Chairman.
2. The term of the Council is three years.
3. To monitor the implementation of the recommendations of the Council,
the Central Government may constitute a standing working group from
amongst the members of the council under the Chairmanship of the
Member Secretary of the Council.
4. The Council shall meet as and when necessary, but at least one meeting
of the Council shall be held at such time and place as the Chairman may
think fit.
State Consumer Protection Council

The Consumer Protection Act provides for the establishment of State
Consumer Protection Councils by the State Governments. The State Council
shall consist of
5. Minister in charge of consumer affairs in the State Government as its

Chairman and

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6. such number of other official or non-official members representing such

interests as may be prescribed by the State Government and
7. Ten nominees of the Central Government.
The State Council shall meet as and when necessary but not less than two
meetings shall be held every year at such time and place as the Chairman
may think fit.
District Consumer Protection Council

In order to promote and protect the rights of consumers, within the district,
the Consumer Protection Act, provides for the establishment of a District
Consumer Protection Council in every district. It shall consist of
8. the Collector of the district as its Chairman and

9. such number of other official and non-official members representing
such interests as may be prescribed by the State Government.
It shall meet as and when necessary but not less then two meetings shall be
held every year. The Chairman shall decide the time and place of the meeting.
Q. What are unfair trade practices under Consumer Protection Act ?

Introduction: -
The object of the consumer protection Act, 1986 is to provide for better
protection of the interests of consumers and for the settlement of consumers
disputes and any matter connected therewith provisions have been also made
in the Act to protect the interests of consumers from unfair trade practices
relating to both purchase of goods as well as rendering of services.
Unfair trade practices
Definition
According to Section 2(1) (r), the term ‘Unfair Trade Practice’ shall have the
same meaning as in Section 36A of the Monopolies and Restrictive Trade
Practices Act, 1969.

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In the Act of 1986, a complaint could be filed only if an unfair trade practice or
a restrictive trade practice was adopted by any trader or service provider. Now
“unfair contract” has also been added which further broadens the ground to
file complaints and allows consumers to challenge contracts which are unfair,
unilateral and unreasonable. Unfair contract has been defined to include
contracts between a manufacturer or trader or service provider on one hand,
and a consumer on the other.
The following six categories of practices have been declared as unfair trade
practices.
1. False Representation and Misleading Advertisements-

a. As to standards of goods or services. It consists of a written, oral
or visible representation which falsely represents the goods to be
of particular standards, quality, quantity, grade, composition or
model etc.
b. It may also consist of falsely representing any rebuilt, second-
hand, renovated or reconditioned goods as new.
c. Making false representation as to sponsorship, approval, etc.
{Example- The fact about disaffiliation of the educational
institution was not conveyed to the candidates seeking admission
to a programme. “Alexander Educational Foundation v/s
Chandrasekaran (1995) 1 CPJ 141 Pondicherry”.
d. Misleading representation concerning the need for usefulness,
etc., of any goods or services- It may consist of giving the public
any warranty or Guarantee of performance, etc. of any goods that
is not based on adequate or proper test, or misleading promise to
replace, maintain or repair an article, etc.
e. Misrepresentation as to price.
f. Disparagement of goods, services or trade of others.
2. False offer of Bargain price
a. It means a price that is stated in any advertisement to be a
bargain price by reference to an ordinary price or otherwise, or a
price that a person who reads, hears or sees the advertisement,

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would reasonably understand to be a bargain price having regard

to the prices at which like products are sold.
3. Offer of Gifts, prizes, etc.
4. Withholding any scheme.
a. Sale or supply of goods not complying with prescribed standard-
The prescribed standards may relate to performance,
composition, contents, design, packaging, etc. as are necessary to
prevent or reduce the risk of injury to the person using the goods.
And 3 more added in the Consumer Protection Act, 2019 Amendment Bill.
5. Failure or non-issuance of a bill or a cash memo;

6. Refusal to take back or withdraw defective goods or withdrawal or
discontinuance of deficient services or refusal to refund the
consideration amount paid within the period as stipulated in the bill or
cash memo or receipt or in the absence of such stipulation, refusal to
withdraw or refund goods or services within thirty (30) days; and
7. Disclosure of consumer’s personal information to any other person
unless such disclosure is made in accordance with the provisions of any
law for the time being in force or in public interest.
Unfair Contracts are also added as part of Consumer Protection Act, 2019,
covering banks and e-commerce providers into the ambit of the Act.
1. requiring manifestly excessive security deposits to be given by a

consumer for the performance of contractual obligations; or
2. imposing any penalty on the consumer, for the breach of contract
thereof which is wholly disproportionate to the loss occurred due to
such breach to the other party to the contract; or
3. refusing to accept early repayment of debts on payment of applicable
penalty; or entitling a party to the contract to terminate such contract
unilaterally, without reasonable cause; or
4. permitting or has the effect of permitting one party to assign the
contract to the detriment of the other party who is a consumer, without
his consent; or

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5. imposing on the consumer any unreasonable charge, obligation or

condition which puts such consumer to disadvantage.
Q. What are the reliefs available for the consumer under the Consumer
Protection Act ?
a. Removal of defects from the goods;
b. Replacement of the goods;
c. Refund of the price paid;
d. Removal of defects or deficiencies in the services;
e. Award of compensation for the loss or injury suffered;
f. Discontinue and not to repeat unfair trade practice or restrictive trade
practice;
g. To withdraw hazardous goods from being offered for sale;
h. To cease manufacture of hazardous goods and desist from offering
services which are hazardous in nature;
i. If the loss or injury has been suffered by a large number of consumers
who are not identifiable conveniently, to pay such sum (not less than 5%
of the value of such defective goods or services provided) which shall be
determined by the forum;
j. To issue corrective advertisement to neutralize the effect of misleading
advertisement;
k. To provide adequate costs to parties.
l. To recall vehicles with manufacturing defect or pay damages
Q. Short notes on the Composition, Jurisdiction of District Commission

under CPA Act, 2019
The District forum is now renamed as District Commission under the 2019 Act
Composition of the District Forum (Section 10)
Each District Forum shall consist of the following :
a. a person who is, or has been, or is qualified to be a District Judge, who

shall be its President;
b. two other members, one of whom shall be a woman, who shall have the
following qualifications, namely :-
(iv) be not less than thirty-five years of age,

lOMoARcPSD|8640486
(v) possess a bachelor’s degree from a recognized university,

(vi) be persons of ability, integrity and standing, and have
adequate problems relating to economics, law, commerce,
accountancy, industry public affairs or administration:
Provided that a person shall be disqualified for appointment as a member,
if he-
a. has been convicted and sentenced to imprisonment for an offence

or
b. is an un-discharged insolvent; or
c. is of unsound mind and stands so declared by a competent court; or
d. has been removed or dismissed from the service of the Government or a
e. has, in the opinion of the state Government, such financial or other
f. has such other disqualifications as may be prescribed by the State
Government
Method of appointment
Every appointment under sub-section (I) shall be made by the State

Government on the recommendation of a selection committee consisting of
the following, namely :-
i) the President of the State Commission - Chairman.

ii) Secretary, Law Department of the State - Member.
iii) Secretary, incharge of the Department - Member dealing with consumer
affairs in the State
Provided that where the President of the state Commission is, by reason of
absence or otherwise, unable to act as Chairman of the Selection Committee,
the State Government may refer the matter to the Chief Justice of the High
Court for nominating a sitting Judge of that High Court to act as Chairman.

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Q. Salient features of the Motor Vehicle Act

Introduction :
In order to give effective rights to the person injured or expired in an accident,

Fatal Accidents Act, 1885 was enacted in India. This Act provided only a
procedure and a right of named legal heirs to claim compensation from the
person committing negligence. This enactment has worked in India for a
comfortable long period. Before the Motor Vehicle Act, 1988 came in to
existence, the Motor Vehicles Act, 1939 was applicable. This Act was amended
several times to keep it up to date. Various Committees and the Law
Commission have gone into different aspects of road transport.
History
The Motor Vehicles Act of 1988 was enacted by the parliament of India on July
1st 1989; this Act was a replacement to the previous Motor Vehicles Act of
1939. This Act is a more detailed and comprehensive Act if compared to the
Act of 1939. The Motor Vehicles Act, 1988 regulates all road transport within
the country and deals with all laws pertaining to road transport. The Act deals
in depth with provisions regarding
1. licensing of drivers/conductors, registration of motor vehicles,

2. control of motor vehicles through permits,
3. special provisions relating to state transport undertakings,
4. traffic regulation,
5. insurance, liability,
6. offences and penalties, etc.
Types of vehicle
MVC Act, 1939
This Act provided only a procedure and a right of named legal heirs to claim
compensation from the person committing negligence. This enactment has
worked in India for a comfortable long period.

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MVC Act, 1988
The Salient features of the MVC are
1. The policy must be against any liability incurred by the insured in respect
of death or bodily injury to any person or damage to any property of a
third party. According to this section the policy does not require
covering the liability of death or injuries arising to the employees in
the course of employment except to the extent of liability under
Workmen Compensation Act (Sec. 147).
2. The insurer can be made a party to the proceedings of the Motor
Accident Claims Tribunal.(Sec. 149) .
3. When a cover note issued by an insurer is not followed by a policy within
the prescribed time, the insurer is bound to notify the fact to the
concerned Registering Authority. (Sec. 147)
4. A claimant is entitled to compensation of Rs.50,000 in cases of death or
Rs.25,000 in the cases of injury without burden of proof of fault on the
part of the vehicle owner. (Sec. 140-No fault liability).
5. A claimant may also seek compensation on the basis of the structured
formula prescribed in the Act. (Sec. 163 A)
6. A claimant may at his option, approach the Tribunal having jurisdiction
over the area
i) in which the accident occurred, ii) where he resides, iii) carries
on business or iv) where the defendant resides. (Sec. 166)
7. For victims of hit and run cases i.e. where the identity of the vehicle
cannot be ascertained the insurers are liable to pay the stipulated
compensation. (Sec. 161)
8. The Tribunal may direct payment of interest on the award at the rates
and from the date specified by it. (Sec. 171)
9. The Tribunal shall arrange to deliver copies of the award to the parties
concerned within a period of fifteen days from the date of award. (Sec.
168)
10.The person liable to satisfy the award shall do so within thirty days of
announcement of the award. (Sec. 168)

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11.Chapter 11 (Section 145 to 164) provides for compulsory third party

insurance, which is required to be taken by every vehicle owner.
MVC Amendment Bill, 2019
The Amendment Bill of 2019 contains the following amendments..
Compensation for road accident victims:
1. The central government will develop a scheme for cashless treatment of

road accident victims during golden hour. The Bill defines golden hour
as the time period of up to one hour following a traumatic injury, during
which the likelihood of preventing death through prompt medical care is
the highest.
2. The central government may also make a scheme for providing interim
relief to claimants seeking compensation under third party insurance.
The Bill increases the minimum compensation for hit and run cases as
follows: (i) in case of death, from Rs 25,000 to two lakh rupees, and (ii) in
case of grievous injury, from Rs 12,500 to Rs 50,000.
Compulsory insurance:
1. The Bill requires the central government to constitute a Motor Vehicle

Accident Fund, to provide compulsory insurance cover to all road users
in India. It will be utilised for:
a. treatment of persons injured in road accidents as per the golden
hour scheme,
b. compensation to representatives of a person who died in a hit and
run accident,
c. compensation to a person grievously hurt in a hit and run
accident, and
Good samaritans:

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1. The Bill defines a good samaritan as a person who renders emergency

medical or non-medical assistance to a victim at the scene of an
accident. The assistance must have been
a. in good faith,
b. voluntary,
c. without the expectation of any reward.
Such a person will not be liable for any civil or criminal action for any
injury to or death of an accident victim, caused due to their negligence in
providing assistance to the victim.
Recall of vehicles: The Bill allows the central government to order for recall of
motor vehicles if a defect in the vehicle may cause damage to the
environment, or the driver, or other road users. The manufacturer of the
recalled vehicle will be required to:
a) reimburse the buyers for the full cost of the vehicle, or

b) replace the defective vehicle with another vehicle with similar or
better specifications.
National Transportation Policy: The central government may develop a

National Transportation Policy, in consultation with state governments. The
Policy will:
a) establish a planning framework for road transport,

b) develop a framework for grant of permits, and
c) specify priorities for the transport system, among other things.
Road Safety Board: The Bill provides for a National Road Safety Board, to be
created by the central government through a notification. The Board will
advise the central and state governments on all aspects of road safety and
traffic management including:
a) standards of motor vehicles,

b) registration and licensing of vehicles,

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c) standards for road safety, and

d) promotion of new vehicle technology.
Offences and penalties: The Bill increases penalties for several offences under
the Act.
a) For example, the maximum penalty for driving under the

influence of alcohol or drugs has been increased from Rs 2,000 to
Rs 10,000.
b) If a vehicle manufacturer fails to comply with motor vehicle
standards, the penalty will be a fine of up to Rs 100 crore, or
imprisonment of up to one year, or both.
Taxi aggregators:
1. The Bill defines aggregators as digital intermediaries or market places

which can be used by passengers to connect with a driver for
transportation purposes (taxi services). These aggregators will be
issued licenses by state Further, they must comply with the Information
Technology Act, 2000.
Punishment for juveniles
2. For offences by juveniles, the guardian or owner of the vehicle shall be

deemed to be guilty and punished with a ₹25,000-fine and three years’
imprisonment. The juvenile would be tried under Juvenile Justice Act,
2000 and the registration of motor vehicle will be cancelled for a
period of 12 months.
Q. What is third party insurance under Motor Vehicles Act, 1988 ?

Introduction
Definition

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Third party insurance policy is a policy under which the insurance company
agrees to indemnify the insured person, if he is sued or held legally liable for
injuries or damage done to a third party. The insured is one party, the
insurance company is the second party, and the person you (the insured) injure
who claims damages against you is the third party.
Chapter XI of the Motor Vehicles Act, 1988 deals with Provisions regarding
insurance of motor vehicles against third party risks.
1. Section 145 of the Act defines certain terms like authorized insurer,
certificate of insurance, liability, policy, property etc., which terms are
relevant to motor insurance against third party. Some of the definitions
are as under:
(a) Authorised Insurer
The term Authorised Insurer means an insurer for the time being
carrying on general insurance business in India
(b)Certificate of Insurance
The expression Certificate of Insurance means a certificate issued by an

authorised insurer in pursuance of sub-section (3) of section 147
Chapter XI of the Motor Vehicles Act 1988 deals with the insurance of Motor
Vehicles against third party risk.
The Motor Vehicles Act, 1988 which came into force on 1st July,1988 and
which is divided into XIV Chapters, 217 Sections and two schedules, makes it
compulsory for every motor vehicle to be insured.
The relevant provisions relating to awarding of compensation in Motor Vehicle

Accidents has been provided in Chapter X, Chapter XI and Chapter XII of the
Motor Vehicles Act, 1988. These chapters deal with following subjects:

lOMoARcPSD|8640486
1. Chapter X deals with No Fault Liability in certain cases.

2. Chapter XI of the Act deals with Insurance of Motor
Vehicles against Third Party Risk, and
3. Chapter XII of the Act deals with establishment of Claims
Tribunals, application for and award of compensation in
cases of accidents arising out of use of Motor Vehicles,
recovery of amount of compensation from insurer as
arrears of land revenue and other procedural and incidental
matters.
Section 145(g) "third party" includes the Government. In the National

Insurance Co. Ltd. v. Fakir Chand, third party should include everyone (other
than the contracting parties to the insurance policy), be it a person traveling in
another vehicle, one walking on the road or a passenger in the vehicle itself
which is the subject matter of insurance policy.
1. Third party insurance is compulsory for all motor vehicles. In G.

Govindan v. New India Assurance Co. Ltd.,Third party risks insurance is
mandatory under the statute .This provision cannot be overridden by
any clause in the insurance policy.
2. Third party insurance does not cover injuries to the insured himself but
to the rest of the world who is injured by the insured.
3. Beneficiary of third party insurance is the injured third party, the insured
or the policy holder is only nominally the beneficiary of the policy. In
practice the money is always paid direct by the insurance company to
the third party (or his solicitor) and does not even pass through the
hands of the insured person.
4. In third party policies the premiums do not vary with the value of what is
being insured because what is insured is the legal liability' and it is not
possible to know in advance what that liability will be.
5. Third party insurance is almost entirely fault-based.(means you have to
prove the fault of the insured first and also that injury occurred from the
fault of the insured to claim damages from him)
Relevant sections in Motor Vehicles Act

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Chapter 11 (Section 145 to 164) provides for compulsory third party insurance,
which is required to be taken by every vehicle owner. It has been specified in
1. Section 146(1) that no person shall use or allow using a motor vehicle in
public place unless there is in force a policy of insurance complying with
the requirement of this chapter.[3] Contravention of the provisions of
section 146 is an offence and is punishable with imprisonment which
may extend to three months or with fine which may extend to one
thousand rupees or with both (section 196).
2. Section 147 provides for the requirement of policy and limit of liability.
1. Every vehicle owner is required to take a policy covering against
any liability which may be incurred by him
(a) in respect of death or bodily injury including owner of
goods or his authorized representative carried in the
vehicle or
(b) damage to the property of third party and
(c) death or bodily injury to any passenger of a public service
vehicle.
2. According to this section the policy does not require
(a) covering the liability of death or injuries arising to the
employees in the course of employment except to the
extent of liability under Workmen Compensation Act.
3. Under Section 149 the insurer is statutorily liable to satisfy the judgment
and award against the person insured in respect of third party risk.
Insurance Companies have been allowed no other defence except the
following:
1. Where vehicle is not permitted to ply such vehicle for hire or
reward
2. For organized racing and speed testing;
3. for a purpose not allowed by the permit under which the vehicle
is used
4. where driver does not hold valid driving license or has been
disqualified for holding such license during the time of the
accident.

lOMoARcPSD|8640486
5. Policy taken is void as the same is obtained by non-disclosure of

material fact.
4. Section152. Settlement between insurers and insured persons.
1. No settlement made by an insurer in respect of any claim which
might be made by a third party in respect of any liability of the
nature referred to in of section 147(1)(b) shall be valid unless such
third party is a party to the settlement.
2. Where a person who is insured under a policy issued for the
purposes of this Chapter has become insolvent, or where, if such
insured person is a company, a winding up order has been made
or a resolution for a voluntary winding up has been passed with
respect to the company, no agreement made between the insurer
and the insured person after the liability has been incurred to a
third party and after the commencement of the insolvency or
winding up, as the case may be, nor any waiver, assignment or
other disposition made by or payment made to the insured
person after the commencement aforesaid shall be effective to
defeat the rights transferred to the third party under this Chapter,
but those rights shall be the same as if no such agreement,
waiver, assignment or disposition or payment has been made.
5. Legal defence available to the Insurance Companies towards third party:
1. The Insurance Company cannot avoid the liability except on the
grounds and not any other ground, which have been provided in
Section 149(2).
2. In recent time, Supreme Court while dealing with the provisions of
Motor Vehicle Act has held that
(a) even if defence has been pleaded and proved by the
Insurance Company, they are not absolved from liability to
make payment to the third party but can receive such
amount from the owner insured.
(b) The policy under the Act covers only third party risks.
Liability for injury to certain persons or class of persons
(other than gratuitous passengers and pillion riders) is not
covered

lOMoARcPSD|8640486
(c) A private goods carrier registered as such with R.T.O. and

also in insurance policy, cannot be used for carrying any
passenger or goods for hire or reward.
(d) breach of the conditions of the policy even within the scope
of Section 149(2) should be material one which must effect
the cause of accident
(e) If the certificate of insurance and the policy are not
transferred to the buyer of a vehicle within 14 days of the
sale of the vehicle, the insurer could not be made liable
even though the vehicle is transferred
3. The courts have held that the burden of proving availability of
defence is on Insurance Company and Insurance Company must
not only lead evidence as to breach of condition of policy or
violation of provisions of Section 149(2) but also has to prove that
such act happened with the connivance or knowledge of the
owner. If knowledge or connivance has not been proved, the
Insurance Company shall remain liable even if defence is available.

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Q. What is no fault liability in MVC Act ?

Introduction :
The term ‘accident’ has not been defined in the Motor Vehicles Act. The term
‘accident’ was first time defined in Fenton v. Thorley & Co. Ltd. as unlooked for
mishap which is not designed nor expected.
In United India Insurance Co, Ltd. v. Somari Devi case it was observed by the
Patna High Court that the word ‘accident’ generally denotes an event that take
place without one’s foresight or expectation, i.e. an event which proceeds
from an unknown cause or is unusual effect of a known cause or contingency.
An accident which is unforeseen is accident which term means some
unexpected and unforeseen event or overlooked mischief. It is an event
happening without concurrence of will of the person by whose agency it was
caused
Definition :
Sections 140 to 144 of the Act, provides for payment of compensation on the
principle of no fault liability i.e. without any fault on the part of any party.
Section 140 of the Motor Vehicles Act, 1988 provides for liability to pay
compensation in certain cases on the principle of no fault.
1. As per Section 142, permanent disablement means, injuries involving

a) permanent privation of the sight of either eye or
b) the hearing of either ear, or
c) privation of any member or joint; or
d) destruction or permanent impairing of the powers of any
members or joint; or
e) permanent disfiguration of the head or face
2. In case of death or permanent disablement of any person resulting from
an accident which arise out of use of a Motor Vehicle/s, the owner of
offending vehicle/s shall be liable jointly or severally to pay
compensation in respect of such death or permanent disablement.

lOMoARcPSD|8640486
3. Under this section amount of compensation is a fixed amount of Rs.

50,000/- in case of death and Rs. 25,000/- in case of permanent
disablement.
4. For claiming such compensation, claimant is not required to plead that
such accident is occurred due to negligence or fault of the owner/ driver
of the vehicle and death or permanent disablement is result of that
accident.
5. Moreover, such claim shall not be defeated by reason of any wrongful
act, neglect or default on the part of the person whose death or
disablement has been occurred. (National Insurance Co. Ltd. v. Honnappa)
6. Nor the quantum of compensation shall be reduced due to contributory
negligence on the part of person who sustained disablement or death.
7. Compensation awarded under this section does not barred the victim to
claim compensation under any other law being in force, though the
amount of such compensation to be given under any other law shall be
reduced by the amount of compensation payable under no fault liability
under this section or in accordance with the structured formula laid
down under schedule -2 to this Act read with Section 163A of the Act.
8. What is material is that a claim under the Motor Vehicles Act is no bar to
claiming compensation, if permissible, also under a different law. The
Double Bench of Gujarat High Court held that the heirs of deceased in
such case could claim compensation both under the Motor Vehicles Act
for negligence of the driver of the tractor and also under Workmen’s
Compensation Act, 1923 for death occurring out of and in the course of
employment.
9. If under Section 141(1), the person has to pay under principle of fault,
the total compensation shall be decided by the compensation payable
under fault, and any difference from the no fault liability compensation
shall be deducted.
In Satvantkumar Harjit Singh Vig v. Aarti Jayant Lalwani case it was held that
Section 140 is attracted even where death is result or the consequence of the
accident arising out of a motor vehicle. What is necessary to see is whether the
death is the consequence of an accident arising out of use of motor vehicle.

lOMoARcPSD|8640486
In New India Assurance Co. Ltd v. Mehebuban bibi case the deceased was
deputed by his employer to carry a damaged transformer in a tractor. The
tractor fell in to a ditch. The deceased was pressed under the damaged
transformer, sustained injuries and died in hospital. Death of the deceased had
arisen out of and in course of his employment. Though the case was not one of
no fault liability, but as the accident had occurred due to negligence of the
driver of the tractor, yet the fact of the case attracted a claim of double
compensation under two different laws, irrespective of whether the claim is
based on fault liability or on no fault liability.
Q. What are the Defence Available to Insurer under MVC Act ?

Liability of the insurer :
Section 149 of the Act provides for liability of insurer and defences available to
insurer in a case of Motor Accident filed before a Motor Accident Claims
Tribunal and provides for duties of insurers to satisfy judgments and awards
against persons insured in respect of third party risks.
If, after a certificate of insurance has been issued under section 147(3) in
favour of insurer , a judgement or award under section 147(1)(b) is obtained
against any person insured by the policy, then, the insurer shall pay to the
claimant, the sum assured payable, in respect of liability, the costs and interest
payable on that sum
No sum shall be payable by an insurer unless the insurer has been given a
notice by the Court, to defend the action on any of the following grounds:
a) That there has been a breach of a specified condition of the policy, being
one of the following conditions:-
i. A condition excluding the use of the vehicle
a) for hire or reward, where the vehicle is on the date of the
contract of insurance a vehicle not covered by a permit to ply
for hire or reward, or
b) for organised racing and speed testing, or

lOMoARcPSD|8640486
c) for a purpose not allowed by the permit under which the

vehicle is used, where the vehicle is a transport vehicle, or
without side-car being attached where the vehicle is a motor
cycle; or
ii. A condition excluding driving by a named person or persons or by any
person who is not duly licenced, or by any person who has been
disqualified for holding or obtaining a driving licence during the period
of disqualification; or
iii. A condition excluding liability for injury caused or contributed to by
conditions of war, civil war, riot or civil commotion; or
iv. That the policy is void on the ground that it was obtained by the
nondisclosure of a material fact or by a representation of fact which was
false in some material particular
Third Party Insurance: Defence Available to the Insurer :
The Insurance Company cannot avoid the liability except on the grounds and
not any other ground, which have been provided in Section 149(2).
In recent time, Supreme Court while dealing with the provisions of Motor
Vehicle Act has held that even if the defence has been pleaded and proved by
the Insurance Company, they are not absolve from liability to make payment
to the third party but can receive such amount from the owner insured. The
courts one after one have held that the burden of proving availability of
defence is on Insurance Company and Insurance Company has not only to lead
evidence as to breach of condition of policy or violation of provisions of
Section 149(2) but has to prove also that such act happens with the
connivance or knowledge of the owner.
Exceptions to defence
1. No driving license is not a defence
Earlier not holding a valid driving license was a good defence to the
Insurance Company to avoid liability. It was been held by the Supreme

lOMoARcPSD|8640486
Court that the Insurance Company is not liable for claim if driver is not
holding effective & valid driving licence. It has also been held that the
learner's licence absolves the insurance Company from liability. The
following conditions are now exceptions to the rule
a) Proving breach of condition or not holding driving licence or holding

fake licence or carrying gratuitous passenger would not absolve the
Insurance Company until it is proved that the said breach was with
the knowledge of owner.
b) Learner's licence is a licence and will not absolve Insurance Company
from liability.
c) The breach of the conditions of the policy even within the scope of
Section 149(2) should be material one which must have been
effected cause of accident and thereby absolving requirement of
driving licence to those accidents with standing vehicle, fire or
murder during the course of use of vehicle
2. Gratuitous passengers are not third party
In United India Insurance Co. Ltd. v. Bodali Bai where the owner had
permitted the truck to be used for taking a dead body for cremation and on
return journey the driver allowed two passengers, then on death of those
passengers as truck had dashed against a bridge, the insurer is not liable,
but the owner was held vicariously liable.
Status of passenger is matter of evidence. Where insurer has failed to prove

that deceased was gratuitous passenger, it cannot avoid its liability
Q. What are the methods for Application for compensation under MVC Act?
There has been a steep escalation in the number of automobile accidents in
the past few years and the figure is still increasing. According to a study made
by the National Transportation Planning and Research Center, Delhi and
Trivandrum, a road accident takes place every four minutes in which a person
is killed or injured. In a year about twenty five thousand persons are killed and
about one lac persons are injured. The Motor Vehicles Act, 1988 deals with the
various issues relating to accidents and claims.

lOMoARcPSD|8640486
WHO CAN FILE AN APPLICATION FOR COMPENSATION
An application for compensation involving the death of, or bodily injury to,
persons arising out of the use of motor vehicles, can be made–
1. by the person who has sustained the injury; or

2. by the owner of the property; or
3. where death has resulted from the accident, by all or any of the legal
representatives of the deceased; or
by any agent duly authorized by the person injured or all or any of the legal
representatives of the deceased, as the case may be.
WHERE TO FILE AN APPLICATION
Every application shall be made, at the option of the claimant,
1. To the Claims Tribunal having jurisdiction over the area in which the
accident occurred or
2. To the Claims Tribunal within the local limits of whose jurisdiction the
claimant resides or carries on business or
3. Within the local limits of whose jurisdiction the defendant resides.
BAR ON JURISDITION OF CIVIL COURTS
Where any Claims Tribunal has been constituted for any area, no Civil Court
shall have jurisdiction to entertain any question relating to any claim for
compensation which may be adjudicated upon by the Claims Tribunal for
that area, and no injunction in respect of any action taken or to be taken by
or before the Claims Tribunal in respect of the claim for compensation shall
be granted by the Civil Court.
I. FIXED COMPENSATION - ON THE PRINCIPLE OF NO FAULT- SECTION 140

1. Where death or permanent disablement of any person has resulted
from an accident arising out of the use of a motor vehicle or motor

lOMoARcPSD|8640486
vehicles, the owner of the vehicle shall, or, as the case may be, the
owners of the vehicles shall, jointly and severally, be liable to pay
compensation in respect of such death or disablement.
2. The amount of compensation which shall be payable in respect of the
death of any person shall be fixed sum of Rs. 50,000/- and in respect
of permanent disablement shall be a fixed sum of Rs. 25,00
3. Claimant shall not be required to plead and establish that the death
or permanent disablement in respect of which the claim has been
made was due to any wrongful act, neglect or default of the owner or
owners.
4. The claim shall not be defeated by reason of any wrongful act,
neglect or default of the person in respect of whose death or
permanent disablement the claim has been made nor shall the
quantum of compensation in respect of such death or permanent
disablement be reduced on the basis of the share of such person in
the responsibility for such death or permanent disablement.
II. PAYMENT OF COMPENSATION ON STRUCTURED FORMULA- 163 A
1. The owner of the motor vehicle of the authorized insurer shall be

liable to pay in the case of death or permanent disablement due to
accident arising out of the use of motor vehicle, compensation, as
indicated in the Second Schedule, to the legal heirs or the victim as
the case may be.
2. In a claim for compensation, the claimant shall not be required to
plead or establish that the death or permanent disablement in
respect to which the claim has been made was due to any wrongful
act or neglect or default of the owner of the vehicle concerned or of
any other person.
3. However where the person is entitled to claim compensation under
section 140 and section 163A, he shall file the claim under either of
the said section and not under both.
III. COMPENSATION IN CASE OF HIT AND RUN MOTOR ACCIDENTS WHERE
IDENTITY OF THE VEHICLES IS NOT TRACEABLE-SECTION 161
Where the identity of the vehicles is not traceable such cases are called hit
and run cases. As the identity of the driver or owner is not traceable, fixed

lOMoARcPSD|8640486
compensation is provided to the victims from the Solatium Fund created by

the Government. It must therefore be shown that identity of the motor
vehicle which caused the accident could not be traced or ascertained
inspite of reasonable efforts, meaning thereby that the accident must be
shown to have occurred on account of the victim being hit by some
unidentified vehicle which hit him and ran away.
Under Section 161 the amount of compensation payable in respect of the
death of any person resulting from a hit and run motor accident is a fixed
sum of Rs. 2,00,000 and in respect of grevious hurt it is a fixed sum of Rs.
50,000.
APPLICATION
An application for compensation is made under section 166 of the Motor
Vehicles Act and shall be accompanied by a court fee of Rs. 10 in the form
of court-fee stamps.
LIMITATION
No application for compensation shall be entertained unless it is made
within six months of the occurrence of the accident.
APPEAL
1. An appeal against the order of the Claims Tribunal lies to the High
Court and may be filed within ninety days from the date of the
award.
2. However no appeal by a person who is required to pay amount in
terms of an shall be entertained by the High Court unless he has
deposited with the Court 25,000 rupees or fifty percent of the
amount awarded, whichever is less
3. No appeal shall lie against an award if the amount in dispute in the
appeal is less than 10,000 rupees.

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Tort Question and Answers

Law of Torts (Karnataka State Law University)

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1 Tort Law, Raghuraman.K

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2 Tort Law, Raghuraman.K

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3 Tort Law, Raghuraman.K

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4 Tort Law, Raghuraman.K

Q. 2 Distinguish between Tort, Crime and Contract.

Q. 4 Explain the maxim - "Ubi Jus ibi remedium".

Q. 5 What do you understand by "Tortious Liability" ?

Q. 8 Explain :- (1) Mal-feasance, (2) Mis-feasance, (3) Non- feasance.

Q. 9 Explain the maxim `Volenti nonfit injuria'.

Q. 10 What do you understand by an "Act of God" ? How far is it a valid defence ?

Q. 11 (A) What do you understand by the defence of "Inevitable Accident."

(B) What is difference between "Inevitable accident" and "Act of God"?

Q. 12 Discuss following defences against tortious liability :-

(i) Private defence

(ii) Acts causing slight harm

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5 Tort Law, Raghuraman.K

Q. 16 What is an Injunction ? How do you classify it ? Enumerate the classification, if any,

Q. 17 Discuss briefly various extra-judicial remedies available in torts ?

Q. 18 Explain the maxim "actis personalis moritur cum persona."

Examine also the exceptions to the rule, if any.

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6 Tort Law, Raghuraman.K

Q. 27 Discuss the principle of `Standard of Care' in negligence.

Q. 28 Discuss the rule of Burden of proof of Negligence.

Q. 29 Explain the doctrine of `Res ipsa loquitur'.

Q. 32 What are the plaintiff's remedies in action for trespass?

Q. 33 Define and explain torts affecting Moveable property.

Q. 34 How do you distinguish Trespass and Conversion ?

Q. 37 Define and explain `false imprisonment'.

Q. 40 What do you understand by `Absolute Liability' ? How rule of absolute liability is

Q. 41 Discuss the rule of the liability for dangerous chattels.

Q. 42 Define `Defamation'. What are its kind ?

Q. 43 When slander becomes actionable per se ?

Q. 44 Distinguish between. `Libel' and `Slander'.

Q. 45 What is "Innuendo" ? Explain the rule of Innuendo.

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7 Tort Law, Raghuraman.K

Q. 47 What acts are privileged under the law of torts ? Discuss.

Q. 48 What do you understand by the expression `Malicious Criminal Prosecution' ? What

Q. 49 What is difference between "Malicious Prosecution" and "False imprisonment" ?

Q. 51 What do you understand by the term "Abuse of Legal Process"?

Q. 52 What do you understand by "Tort of Mental and Nervous Shock" ?

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8 Tort Law, Raghuraman.K

Q. Essentials of tort. Explain with cases

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9 Tort Law, Raghuraman.K

Similarly, in Bhim Singh Verses State of J&K, the petitioner, an M.L.A. of

2. Damnum sine injuria: According to this maxim, there is some injury

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10 Tort Law, Raghuraman.K

Q. Describe the term “ubi jus ibi remedium”.

1. For example, a contract which was required to be made on stamped

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