Q1. Define the term TORT. Tracing its brief origin, demarcate its nature and scope.

Ans.1) The tort is a civil wrong, different from a contract for the following reasons:

1) A contract gives the right only against the person with whom contracted, but tort may also
be a right against an unknown person (right in rem).
2) There is generally a consideration as an essential element of a contract, but in many torts,
the right arises even without any consideration.
3) In contract, the damages are generally liquidated i.e. pre-determined but these are mostly
unliquidated damages (not pre-fixed) in tort.

The following are important definitions of the term TORT:

Definition in the Limitation Act, 1963- “Tort means a civil wrong which is not exclusively a
breach of contract or breach of trust”. This definition only differentiates tort from contract
and breach of trust but does not give other characteristics of the tort.

Salmond’s Definition- “It is a civil wrong for which remedy is a common-law action for
unliquidated damages and which is not exclusively the breach of contract or the breach of
equitable obligation.” Salmond defines the British background, from where the law of torts
has taken origin. He gives the following characteristics of a Tort:

1) A civil wrong.
2) Remedy in common law action. It means a case to be filed under the common law of
England and in common law courts. The common law of England means Unwritten law
which is based on Court decisions or Judge- made law.
3) Damages in torts are unliquidated i.e. not pre-determined.
4) It is not only a breach of contract or breach of equitable obligation. It means tort is
different from these two types of civil wrongs.

Definition By Frazer:- “It is an infringement of a right in rem of a private individual giving a

right of compensation at the suit of the injured party.” Frazer’s definition is based on the
following characteristics of a Tort:

1) It is a violation of a right in rem i.e. right against the entire world or all persons, known
or unknown.
2) A Tort gives the right to file a civil suit for claiming compensation for the damage caused
to a private individual.

Characteristics of a Tort:- From the above important definitions of the term TORT, we can
identify the following characteristics:

1) A tort is a civil wrong.

2) It is not a breach of contract.
3) It is also not a breach of trust.
4) It is generally a violation of a right in rem.
5) A tort is a redressable breach. It means a violation against which you can the sufferer
can go to court.
6) Tort gives the right to an action for claiming compensation.
7) Damages in torts are unliquidated i.e. not pre-determined or decided between parties.

Brief Historical Origin: - Salmond as the most important author of English law derives the
origin of Law of Torts in the common law of courts which is based on the judgments of the
English courts. For filing a case of Torts, Salmond suggests finding an English case on the
point that is found in the case to be filed under the Law of Torts. He names this process the
Pigeon Hole Theory.

Pigeon Hole Theory- As per this theory of Salmond, a case becomes a Tort that can be
contested in a court for damages it must be based on an already decided case. In the court,
it will have to be mentioned in the plaint on which English case (Pigeonhole) the case in the
plaint is based. As per Salmond, Pigeon is a Judge, a hole is a case decided by him earlier on
which present case is to be based. The term pigeon has been used for the Judge based on
the intelligence of the judge and memory which means the case was decided in the past.

Frazer Objects- Frazer and many other English authors objected to the pigeon hole theory of
Salmond on the ground that every tort cannot be based on the facts of an earlier case of
torts because the facts of two cases can never be the same.

Houston Clarifies- Houston who became the co-author of Salmond’s book on Law of Torts
clarified the point that Salmond never meant that pigeonhole meaning the case with the
same facts. He said that Salmond meant by pigeonhole a “Principle of Law” and the facts of
the case. Following the pigeonhole is basing the case being contested on the principle of law
already decided in the court under the law of torts.

Law Of Torts Has Grown Further- In its beginning, the law of torts was confined to trespass
but later on it acquired many more areas like a right of vote, defamation, negligence,
consumer protection, etc. And the law of torts in the present day is not only non-statutory
but today it is covered under the written laws also like defamation, consumer protection,
motor vehicles, etc.

Nature Of Torts- Nature means the characteristics. Accordingly, a contract is a civil wrong,
which is not exclusively the breach of contract, breach of trust, or equitable obligation. It
arises from a right in rem and remedy is unliquidated damages. From the above
characteristics, the following nature of torts can be identified:

1) Tort Is Different from Crime or Offence- as a tort is a civil wrong; therefore, it is

different from a criminal wrong that is called a crime or offense. Although the present
torts have some common areas with criminal wrongs like negligence, trespass, battery,
defamation, etc. as clarified by the Hon’ble Supreme court of India in Jacob Mathew v.
 the State of Punjab, AIR 2005SC3180, the standard of proof is different in both criminal
wrong and a tort.
2) Tort Is Also Different From Breach Of Contract- Although both are civil wrongs
principles applicable to both are different. The rights in the contract are to arise from
the Contract Act or the agreement entered into between the parties but no such
statutory principles and formal agreement exist between the parties. Although written
laws like Consumer Protection Act and Motor Vehicles Act have entered the area of torts
there does exist a large area of torts outside such statutory obligations.
3) Tort Is Also Different From Breach Of Trust Or Equitable Obligation- Breach of Trust is
covered under the Trust Act and equity lies outside the domain of law to deliver justice
in a case but Tort is well governed by legal principles.
4) Tort Is Not Bailment- Bailment of a quasi-contract and governed by the provisions of
Contract Act but tort is different from a quasi-contract and not covered under the
contract law.
5) Unliquidated Damages in Torts- generally the nature of torts is found from the
unliquidated damages in this law but in some cases, the upper limit of liability as in
insurance coverage may have been fixed.
6) Some Concepts Of Contract And Criminal Law Found In Torts- Some concepts of
contract law like Vicarious Liability and some principles of modern criminal law like
STRICT OR ABSOLUTE LIABILITY are found in the law of torts as well. But the spirit of
torts remains different from the contract and a criminal wrong.

Scope Of Torts- Scope of a discipline means its subject matter or the contents. Therefore,
the scope of every discipline changes with its growth and development. The same is the
case with the law of torts.

1) It Started With Trespass Cases- The beginning of the law of torts was with trespass
cases both of property and person and it continues to be an important area of its scope.
2) Pigeonhole Theory Was The First Principle- Salmond’s Pigeonhole theory asking for
fitting a case in any decision (pigeonhole) was the beginning of the law of torts but it is
not so now. Even though unwritten law is still a large area of torts but like other laws,
torts have their established principles.
3) Unwritten Common Law- The beginning of the law of torts was unwritten common law
principles which are relevant even today but the written laws like Consumer Protection
Act, Motor Vehicles Act have also come within the scope of Torts.
4) Cases Of Negligence, Nuisance, Vicarious Liability, And Defamation- Entering into some
areas of contract law and criminal law, the law of torts includes within its scope cases of
negligence, vicarious liability, nuisance, and defamation. But the difference on some
points of evidence and procedural law remains between criminal law and torts or
contract law and torts. But the present scope of the law of torts is quite vast and is
based on very well-established legal principles.
Q2. What Is Vicarious Liability And How Strict Liability And Absolute Liability Are
Different From Vicarious Liability? Discuss.
Ans.2) Vicarious Liability- Vicarious liability means the liability of a person other than the
one who committed the tort. Hence, it is an exception to the general principle of Law of
Torts that the person committing the tort shall himself be liable to pay compensation to
the victim of such wrong-doing that constitutes a Tort.

Master-Servant Liability- Vicarious liability is also named as Master-Servant liability i.e. the
master is held liable for the tort committed by his servant. But it is more than this. In
addition to the liability of the master for the torts of his servant, vicarious liability is applied
in the case of partners and also agents. In this sense, vicarious liability means the liability of
a person for the torts committed by another person or liability for torts of a third person.

3 Examples of Vicarious Liability

1) Liability of the Principal for torts committed by his Agent.

2) Liability of partners for the tort committed by any partner.
3) Liability of the Master for the tort committed by his servant.

Principal Agent Liability- The principal is the main person in business or other positions. An
agent is his representative, who deals with the outside people on behalf of the Principal.
Since people are dealing with the representative or agent on behalf of the Principal,
therefore for wrongs committed by the agent during his dealings, will give a right to persons
so wronged to claim compensation from the Principal. This Is the basis of liability of the
Principal for torts committed by his agent. The capacity of agent and wrong done essential-
But for applying this principle of Vicarious liability, two things must exist.

1. The person committing wrong was an agent, and

2. While doing the wrong, he was acting as an agent.
3. Supreme Court in State Bank of India v. Shyma Devi, AIR 1978 SC 1263, where the lady
gave a cheque to the clerk of the bank as a neighbor to deposit in her account but he
played a fraud, The Apex Court held the clerk was not acting as an agent of the bank,
and therefore, the bank is not vicariously liable.

Partners Of A Firm- The concept of liability of partners of a firm is not strictly vicarious
liability but some authors include it within it. As per the provisions of the Partnership Act,
the liability of the firm is both joint and several. Under this principle, in the case of a tort
committed by the firm, a partner may be held liable for the wrong committed by another
partner.

Master-Servant Liability- This is the most important category of vicarious liability. Under it,
the Master i.e. person employing the servant is held liable for any tort committed by his
servant. Like, the Principal-Agent, in the case of master-servant also, the outsiders deal with
the servant on behalf of the master and take the act wronged as the one authorized by the
master himself.

2 Essentials of Master-Servant Liability- Following 2 requirements must be met for holding

the master liable for the tort committed by his servant:

1. Tort has been committed by the servant; and

2. Tort was committed during the course of employment.

For the first, the relationship of master and servant must be established, and for the second,
the act must have a connection with employment. The servant here needs to be
differentiated from an independent contractor.

Contractor- Servant Difference- The contractor also acts on behalf of the Master but in such
cases of tort, the master is not held liable but the contractor himself is liable to pay
damages. This is because of his different position from that of the servant. It can be pointed
out as under:

1. In the case of work by the contractor, it is not done under the directions and direct
control of the Master/Employer.
2. The act constituting the tort is not during the employment because there is no master-
servant relationship, and therefore, it cannot be during the course of employment.

Cases Where Master Liable For Torts Committed By Independent Contractor:- As an

exception to the rule that master is not liable for torts committed by the independent
character, the following can be referred to:

1. Employer authorizing or subsequently ratifying illegal act,

2. In cases of strict liability as laid down in Ryland’s V. Fletcher.
3. If the danger of the act is caused on or near the highway.
4. If wrong caused to the plaintiff is a nuisance in form of withdrawal of support from
neighbour’s land.
5. When tort results in the breach of a master’s common law duties.

Such four Duties as Interpreted In The Case Of Smith V. Charles Baker & Sons (1891). It Was
Observed:

a) Duty of employer to take reasonable care to provide proper appliances.

b) To maintain them in a proper condition.
c) Not subject those employed to unnecessary risk.
Vicarious Liability Of State:- To understand the vicarious liability of the State, the answer
lies in answer to the question:

a) Whether State is Liable in Torts?

b) Why does this question arise?

1. The state has to discharge some sovereign functions like Defence and maintaining law
and order. If now and then, the question of liability will arise, the functionaries of The
State shall be hesitant and defensive in discharging their essential functions.
2. State liability in Torts has remained unclear in the case laws. Since the question has not
been clearly explained, the question becomes important for an answer. The available
information on these two questions comes as under:

1. Sovereign Functions And Liability- In addition to sovereign functions, the modern

welfare State also performs a lot of non-sovereign functions like housing and building
roads, bridges, etc. Therefore, the case law on the point answers as under:-
2. No Liability In Sovereign Functions Performed Within Prescribed Limits And Honestly-
If the employee of the State discharges his duties within the prescribed limits of his
powers and duties, and he does it honestly and in good faith, there is no liability of the
State.

But if the act constituting tort is unlawful, then the State is vicariously liable. The important
cases on the point are:

a) Rudal Shah v. the State of Bihar, AIR 1983SC1086, where the petitioner was kept in jail
even after he was acquitted, the violation was serious and of right to life and personal
liberty. Hence, State was made vicariously liable.
b) Bhim Singh v. State of J&K, AIR 1986SC494, where MLA was arrested while going to
attend the Assembly session in violation of his immunity provided under the
Constitution. The State was held liable for the tort, again a violation of Article 21.

State Liability For Torts During Non-Sovereign Functions- Article 300 of the Constitution
deals with such liability in acts of trade and commerce. The language of such liability is quite
confusing, going back to the liability as it was before independence i.e. under the Govt. of
India Act, 1935 and again going back to the liability of East of India Company. The case law
has been conflicting making the answer murky.

Normally, it is said State is liable like a private individual. However, to make State liability in
Torts more clearly, the first law commission recommended legislation like the one in UK and
USA. In the case of N. Nagendra v. the State of AP, AIR 1994SC2663, the Apex Court
referred to such requirement of legislation mentioning the recommendation of Law
Commission and developments in UK and USA. The court also observed that today the
difference of State liability is not relevant, and it is liable unless protected by the legal
principles applicable in Torts.

Strict Liability Or Ryland’s V. Fletcher Liability

Since the principle of strict liability was laid down in the landmark judgment of the House of
Lords in Ryland’s V. Fletcher (1868), such liability is also called Ryland’s v. fletcher liability.
Strict liability is an exception to the principle of proving intentional act or carelessness for
tort

Liability- normally, an act constitutes a tort if it was done with the wrong intention of the
wrongdoer. But if the damage is caused is grave, this principle is not applied under the rule
of strict liability hence; strict liability is an exception to the normal rule of proving an act
constituting a tort.

Strict Liability Is Exception To The Exception Of Vicarious Liability- under the principle of
vicarious liability; the master is liable for the tort committed by his servant. The exception to
this master-servant liability is that an independent contractor is not such a servant for
whose tort, the master is liable i.e. independent contractor is himself liable for his tort.
House of Lords in the famous case of Ryland’s v. fletcher laid down that in certain kinds of
torts, the principle of strict liability shall be applicable and in such category of cases where
the tort is committed by the independent contractor but even then, the master shall be
liable for the tort committed by the contractor engaged by him.

Strict Liability Principle In Ryland’s V. Fletcher- An important observation by Justice

Blackburn is the basis of strict liability: “We think the rule of law is that the person who for
his purposes brings on his lands and keeps there anything likely to do mischief if it escapes,
must keep it in at his peril, and if he does not do so, is prima facie answerable for all the
damage which is the natural consequence of its escape.”

Requirements For Applying Strict Liability:

1. Some dangerous thing must have been brought by a person on his land. Examples of
dangerous things are large bodies of water, gas, electricity, vibrations, sewage
explosives, etc.
2. The thing thus brought or kept by a person on his land must escape.
3. It must be non-natural use of land.

Strict Liability Is Not Free From Exceptions: - While laying down the rule of strict liability,
the House of Lords in Ryland’s case also provided 5 exceptions from the application of
liability of the master.
5 Exceptions/Defences in Liability of Strict Liability- in Ryland’s v. Fletcher, the following 5
exceptions (as Defences from escaping from liability of the owner) were also laid down. It
means if any of the following Defences are available to an owner of the land, he will not be
liable to pay damages. These five Defences are as under:

1. Plaintiff’s Default- If the person claiming compensation had himself committed the
wrong or has led to the damage. Example of entering into another’s land where the
accident occurred.
2. Act Of God- If the escape could not be foreseen and it is because of supernatural forces
without any human intervention. Like an earthquake, heavy rains causing floods,
tsunamis, etc. BLACKBURN J. himself defined it as: “Circumstances which no human
foresight can provide against and of which human prudence is not bound to recognize
the possibility.” In the case where the authorities were expected to lower the water
level of the dam before the rainy season but failed to do so resulting in an over-release
of water causing damage to the plantation of the defendant, the Defence of the Act of
God was not accepted by the Court.
3. Consent of the Plaintiff- this is covered under the principle volenti non-fit injuria which
means injury voluntarily suffered is not a legal injury that can be compensated. The
examples are consenting for a common water reservoir etc.
4. Act of Third Party:- If the damage was caused by the act of a third person on whom the
defendant does not have any control nor could he foresee such an act. Supreme Court
applied this Defence in MP Electricity Board v. Shail Kumar, AIR 2002SC551.
5. Act Of Statutory Authority- If a legal duty is caused on authority and while performing
that act and without negligence, the damage caused is covered under this Defence.

Absolute Liability:- The Rule of Absolute Liability is an extension of Strict Liability that has
been developed by the Supreme Court of India in MC Mehta v. Union of India, AIR
1987SC1086 and also applied in Bhopal Gas Leak Disaster known as Union Carbide v. Union
of India, AIR1990SC 273.

What Is Absolute Liability?

This is strict liability without recognizing the exceptions of Rylands v. Fletcher while applying
the rule of strict liability. It is a rule of strict liability without exceptions. The reason given is
the Heavy Loss and the Rule of Rylands v. Fletcher being about 150 years old having little
relevance today. The Rule of Absolute Liability emerged in the judgment of MC Mehta v.
Union of India, AIR 1987SC1086. CJ PN Bhagwati made very important observations in this
regard. A brief reference can be made as under:

1. Ryland v. Fletcher Cannot Afford Guidance- The rule evolved in Rylands v. Fletcher in
the 19th century at a time when developments of science and technology had not taken
place cannot afford any guidance in evolving any standard of liability consistent with the
constitutional norms and the needs of the present-day economy and social structure.
2. Hazardous Enterprise Has Non-Delegable Duty of Safety- CJ Bhagwati held: “We are of
the view that an enterprise which is engaged in a hazardous or inherently dangerous
industry which poses a potential threat to the health and safety of the persons working
in the factory and residing in the surrounding areas owes an absolute and non-delegable
duty to the community to ensure that no harm results to anyone on account of
hazardous or inherently dangerous activity which it has undertaken.”.
3. Liability Is Strict And Absolute Without Any Exceptions- The Apex Court concluded: “
We would therefore hold that where an enterprise is engaged in a hazardous or
inherently dangerous activity and harm results to anyone on account of an accident in
the operation of such hazardous or inherently dangerous activity resulting, for example,
the escape of toxic gas, the enterprise is strictly and liable to compensate all those who
are affected by the accident and such liability is not subject to any of the exceptions
which operate vis-à-vis the tortuous principle of strict liability under the rule in Rylands
v. Fletcher.”

Principle Reiterated In Bhopal Gas Tragedy Case- Bhopal Gas tragedy happened before MC
Mehta’s facts but the decision came late. The case is known as Union Carbide Corporation
v. Union of India, AIR 1990 SC273 further strengthened the rule of Absolute Liability. This
case also led to the enactment of The Public Liability Insurance Act, 1991 for giving
immediate relief to the victims.

Differentiating Vicarious, Strict, And Absolute Liability

1. Vicarious liability is an exception to the general principle of tort liability that wrong doer
himself is liable for paying compensation. Under this exceptional rule, the master is
liable for the tort committed by his servant, and the Principal is liable for the wrong of
his agent.
2. Strict and Absolute Liability is an exception to the rule that if the danger is serious and
damage caused is severe, the general principle under Vicarious Liability is that for the
wrong caused by Independent Contractor, the master is not liable shall not apply. As
such, Strict liability is an exception to the rule of Vicarious Liability.
3. Strict Liability is also an exception to the general principle of tort liability that the wrong
action to be named a tort must be an intentional or negligent act. Under Strict liability,
no intention or negligence is required to be proved.
4. Whereas the Vicarious and Strict Liability principle has emerged from the English case of
Rylands v. Fletcher, Absolute Liability is an Indian Rule laid down in MC Mehta v. Union
of India.
5. Absolute liability is Strict Liability without accepting the 5 Defences prescribed in Rylands
v. Fletcher. It means Absolute Liability is a New Strict Liability principle knowing no
Defences of Rylands v. Fletcher. It is strict liability applicable.
Q.3) Discuss In Brief The General Defences In Tort Liability.
Ans.3) Introduction- When a tort is committed; it gives a right to the victim to file a plaint
for claiming damages. In this capacity, the victim of the tort is called the Plaintiff and the
wrongdoer i.e. person against whom the case is filed is called the Defendant. To claim
compensation, the plaintiff is required to prove the essentials required for claiming
damages. Likewise, Defendant has also a right to plead that he is not liable to pay the
damages. The grounds available to the defendant, which if proved make the defendant
not liable to pay compensation to the plaintiff, are called the Defences.

General Defences In Tort Liability:- There are EIGHT general defences recognized in the
Law of Torts. Any one of them, if proved by the defendant, escapes the defendant from
liability to pay damages to the plaintiff. These are:

1. Consent of Plaintiff or Volenti Non-Fit Injuria.

2. Plaintiff, Himself Is Wrongdoer.
3. Damage Is Result Of Inevitable Or Unavoidable Accident
4. Act Causing Damage Is The Act Of God Beyond Control Of Defendant
5. Damage Was Caused While Exercising Right Of Private Defence By The Defendant
6. Act Was The Result Of A Genuine Mistake
7. The Act Resulted From A Grave Necessity
8. It Was an Act Of Statutory Authority Working Under The Law.

A brief discussion with illustrations of these general Defences is as under:

Volenti Non-Fit Injuria or Consent of the Plaintiff-

It means that if a person has volunteered to suffer an injury, he cannot hold the other
person liable for compensation of such injury. This is also called the DEFENCE OF CONSENT
and it applies subject to certain limitations under the criminal liability as well. However, the
following clarifications are attached with the Defence of consent:

1. The consent given by the victim may be expressed or even implied.

2. Mere knowledge of a possible injury is not sufficient to constitute such consent. It must
be specific if needed after giving a warning of such injury.
3. The consent must be free and not as a result of any duress or fraud. The essentials of
free consent under the Indian Contract Act apply in the case of Torts as well.
4. Consent must of an adult person, who is competent to give consent as per the age
requirement and soundness of mind. Again the provisions of the Contract Law are
applicable.

Examples- Giving consent for a surgical operation, implied consent of spectators and players
of games are good examples of such consent available as a Defence. Important Indian cases
on the point are:
 Laksmi Rajan v. Malar Hospital Ltd. (Tamil Nadu, 1998) holding general consent for
surgery is not sufficient for the removal of Uterus; and
 Padmavati v. Dugganaika (1975) where persons getting a lift in a vehicle were held to
have consented to injury in the accident.

Plaintiff The Wrongdoer- In a case of Torts where the plaintiff claiming compensation has
himself committed the wrong; the defendant cannot be held liable for compensation. The
general principle of law is:

No One Can Take the Benefit of One’s Wrong. The Defence of this category is not simple
and straight but subject to the following clarifications:

1. The Defence of the plaintiff himself the wrongdoer is available if the injury caused was
the result of a wrong committed by the plaintiff. , like a car driver running over speed
and without lights does not see the truck rightly parked and hits it with a result suffering
injuries and damage of the car. He cannot claim damages from the truck owner.
2. But if the wrong committed by the plaintiff is independent of the injury caused by the
defendant, then the defendant cannot avail the benefit of the plaintiff’s wrongdoing. A
case of negligence on the part of both plaintiff and defendant resulting in injury shall be
covered under Contributory Negligence, not as a complete Defence.
3. Pollock clarifies the Defence of the plaintiff the wrongdoer as: “When the plaintiff
himself is a wrongdoer, he is not disabled from recovering in tort unless some unlawful
act or conduct on his part is connected with the harm suffered by him as part of the
same transaction.” In National Coal Board v. England (1954) AC403 it was held that
theft was unneeded with the burglary, therefore, liability under tort continues.

Inevitable Accident- If an accident the happening of which could not be avoided without
taking the risk of legal injury for which compensation is claimed, the accident caused by the
defendant does not attract compensation.

The test for declaring an accident is: Of a Reasonable Man and after Taking Reasonable
Care. Pollock clarifies: “It does not mean inevitable, but it means not avoidable by any such
precautions as a reasonable man could be expected to take.” Indian case of SHRIDHAR
Tiwari v. UP State Road Transport Corporation, 1987 ACJ636, is a classic case on the point.
In this case, the Defence of inevitable was accepted by the Court where while saving a
cyclist the rear portion of the bus hit the front portion of the second bus because of the
slippery road on a rainy day. There are also reported cases of accidents outside children's
schools where such Defence was accepted as inevitable.

ACT OF GOD- It is called the Act of Nature or even Natural Calamity. Like an act of God, a
person does not have control over such an act, it is sudden and unforeseen. If the plaintiff
could foresee such an act and he did not avoid it, then he is liable for negligence, as was
held in the case of Vohra Sadikbhai Rajakbhai v. State of Gujarat (2016) the Supreme Court
held the management of Mouzam Dam liable for negligence in releasing water before the
rainy season. The Defence of the Act of God/Natural Calamity was not accepted.

Halsbury’s Laws Of England Explain the Defence as: “An extraordinary occurrence of
circumstance which could not have been foreseen and which could not have been guarded
against, or more accurately, as an accident due to a natural cause, directly and exclusively,
without human intervention, and which could not have been avoided by any amount of
foresight and pains and care reasonably to be expected of the person sought to be made
liable for it. “

Two Important Essentials Of This Defence

1. There must be working of natural forces.

2. The occurrence must be extraordinary and not one which could be anticipated and
reasonably guarded against.

Private Defence: Private Defence is a complete Defence in Torts as well as under criminal
law. It means an injury inflicted by the defendant to save himself. Had he not done so, the
plaintiff would have injured him. Right of self-Defence is available both in cases of
protection of one’s person i.e. body and also protection of property. In the law of Torts, the
general case where the right of self-Defence protects the defendant is Trespass in case of
property, and Battery including Assault so far as protection of one’s person is concerned.
Right to Self Defence or private Defence, as it is also called, or also recognized under the
Criminal Law.

So far as extent and time of such right are concerned, the common principles in offenses
and torts are recognized as under:

1. The right to self-Defence is proportionate to the threat of attack on the person or

property. It is not more than that. However, the proportion is not to be weighed in
golden scales but generally in the given circumstances. Cockcroft v. Smith is a decided-
leading English case on this point.
2. The right to self-Defence begins as soon as the potential danger becomes visible, and it
comes to an end when such a threat comes to an end. Cook v. Beel is the English case on
this point.
3. The threat must be a possible threat, not an impossible occurrence to be used as a
possible threat. When in a moving train the defendant exercised his right over the
person abusing and showing signs of threat standing on the platform, the Court did not
accept the possibility of threat and exercise of self-Defence.
4. The threat must be present and instant. The future threat provides an occasion to save
oneself and report the matter to police or other authorities.
Mistake as A Defence in Torts: As a general principle, mistake of fact or mistake of law is no
Defence under the Law of Torts. But there are certain exceptions to the rule, where the
defendant can exercise this right of Defence. But he must show that he acted under an
honest but mistaken belief. Such exceptional cases, where the mistake of fact is a Defence
from liability of the defendant are:

1. In the case of malicious prosecution of an innocent man, if the defendant proves that it
resulted from the mistake of fact, it has been accepted a valid Defence in Gaya Prasad v.
Bhagat Singh.
2. Honest belief in the truth of a statement is a Defence in case of defamation, held in
Derry v. Peek.
3. The mistaken belief of a servant has accepted a valid Defence in vicarious liability of his
master in the case of GW Railway Company.

Necessity as Defence: Necessity is an unavoidable situation where committing a tort

becomes essential. It is normal to avoid bigger harm. In a way, Necessity as Defence goes
close to Inevitable Accident and also has some resemblance with Self Defence. But it is
different from both of them. Necessity Different from Inevitable Accident-In the case of
necessity, the harm caused is intentional; but in an Inevitable Accident, it happens despite
the best effort to avoid it. Necessity Distinguished from Self Defence- In Necessity the victim
of the wrong act is innocent, but in self or Private Defence, the victim is himself a
wrongdoer.

Illustrative Cases

1. Throwing goods on a ship to lighten it and to save the ship and persons on board from
drowning, held in Mouse’s case.
2. Pulling down a house to save the spread of fire.
3. Hypothecating or even selling a ship by the Master of a ship that is fast vanishing, held in
Hastie’s case.
4. Operation of a seriously injured and unconscious patient by the competent surgeon
without getting consent.

Act of Statutory Authority as Defence: If the act is assigned under the Act of the legislature
and as per the requirements of the law, such act causing any damage is not actionable as a
Tort. But it would have been constituted the tort if it was done by the private person not so
authorized. It is just close to sovereign functions. The immunity from liability to such
statutory authority is both for direct as well as incidental acts. Examples are Railway tracks
causing damage and vibrations to the adjoining land; the acts of Electricity Board, Telephone
department, Police personnel, and Armed Forces, etc.
Two Kinds of Authorisation

1. Absolute Authority- which has been given an authority to do acts without mention of
any conditions.
2. Conditional Authority- which can be exercised only if the given conditions and
circumstances exist. This is limited authority. Example of- Police firing by police.

Conditions of This Defence

1. The authority has been empowered under the Law made by the competent authority.
2. This law is reasonable, just, and fair as laid down in Maneka Gandhi’s case (1978).
3. The act of the authority is done honestly and in good faith. Any arbitrary use of power
makes the authority liable.
4. The authority has used due diligence while doing the act. An act of negligence is
actionable, as held in Taff Vale Rail Co.

Q.4) Define The Terms Negligence, Contributory Negligence, And Composite Negligence
Resulting In the Commission Of Torts And Liability For Damages.
Ans.4) Introduction- Tort is a civil wrong, done intentionally that is actionable and resulting
in payment of compensation to the person who has been wronged. In this sense, the act
constituting tort must be done to cause damage, as a general principle, however, subject
to certain exceptions falling under the principles of Strict Liability and Absolute Liability.
Negligence on the part of the wrongdoer i.e. the tortfeasor conveys his intention, which
can be named as the implied intention for the wrong.

Thereby, Negligence is the fulfilment of one essential condition to make an act an actionable
wrong, called the Tort.

What Is Negligence?

Negligence is the lack of care while doing an activity that is expected of the person doing it
under the law of the land. Negligently doing an act results in the commission of a Tort as
well as the commission of a criminal wrong. The intensity of negligence constituting an
offense is much more than it is in the case of a tort. But what is Negligence? It has not been
precisely defined and differs from the authors who define this term.

An authenticated definition of the term Negligence can be found in the Judgment of the
Supreme Court in the case of Jacob Mathew v. the State of Punjab, AIR 2005SC3180, in the
following words:
SC Definition: “Negligence is the breach of a duty caused by the omission to do something
which a reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs would do or doing something which a prudent and reasonable
man would not do. Actionable negligence consists in the neglect of the use of ordinary care
or skill towards a person to whom the defendant owes the duty or observing ordinary care
and skill, by which neglect the plaintiff has suffered an injury to his person or property.”

Three Constituents:- The following 3 elements of Negligence emerge from the above
definition:

1. The defendant owed a legal duty of care towards the plaintiff.

2. There is a breach of that duty by the defendant.
3. The consequence of such breach is a commission of a Tort for which the defendant is
required to pay damages for the loss caused to the plaintiff.

Three Meanings Of Negligence By Charlesworth & Percy: The celebrated authors give 3
general meanings to the term Negligence which are applicable in different circumstances:

1. A state of mind in which it opposed intention.

2. Careless conduct.
3. The breach of duty to take care that is imposed by common or statute law. It is the third
meaning that has general application in the law of torts.

Criminal Negligence Is More Intense Than Civil Negligence: - The Apex Court in Jacob
Mathew was examining criminal negligence, therefore, it distinguished the criminal
negligence from civil negligence required for liability of a Tort. The Court made it clear that
“to fasten liability in Criminal Law, the degree of negligence has to be higher than that of
negligence enough to fasten liability for damages in Civil Law.” In criminal negligence, the
term is recklessness which means gross negligence, which is not the case for liability under
the Tort. Lord Atkin also made such distinction in Andrews v. Director of Public
Prosecution, (1937) AC576 as” Simple lack of care- such as will constitute civil liability is not
enough for purposes of criminal law

Negligence in Torts Is Not Guilty Intention or Men’s Rea- under Law of Torts, Negligence
has TWO MEANINGS:

1. Negligence is a mode of committing certain torts like, negligently or carelessly

committing trespass, nuisance, or defamation. In this context, it makes negligence a
mental element.
2. Negligence is also considered a separate tort. It means conduct that creates a risk of
causing damage, rather than a state of mind. House of Lords gave this meaning to
negligence under the law of torts in the case of Donoghue v. Stevenson.
Essentials Of Negligence:- Three essentials of Negligence under Law of Torts are as under:

1. Duty of care to the Plaintiff- The defendant owed the duty to take care in respect of the
plaintiff or all persons like him (as in right in rem). What is the duty and what is the
extent? It depends on the foreseeability of injury i.e. the defendant could know that his
failure to perform his duty may result in injury to any person or property. However, it
does not cover foreseeing the remote possibility of injury. A remote possibility is not the
direct consequence of the act done by the defendant, and such a consequence may not
be foreseen by any person of ordinary prudence. In Bolton v. Stone, where in the cricket
stadium 17 ft. high over the pitch went outside the stadium and hit the plaintiff on the
highway, which never happened during the past 30 years. The principle of remote
possibility was applied by the House of Lords, and stadium management was held not
liable.
2. Breach Of Duty- The defendant failed to perform his duty, thereby causing the accident
or the act known as Tort.

For declaring the breach of duty, the Court is to take into account The Standard of Care
Expected of the Defendant. It Depends Upon The Circumstances Of The Case I.E. Nature Of
Duty, The Defendant ( An Ordinary Man Or Professional) And The Amount Of Consideration
Paid. We Can Name As:

I. The importance of the object to be achieved-i.e. avoiding fall of wall, motor accident,
or a safe surgery.
II. The magnitude of the Risk involved i.e. what can be the possible consequence of
Negligence- Like a normal injury, loss of reputation, or death of the person involved.
III. Amount of Consideration Paid for Hiring Services- If more than normal, the
magnitude of care also increases. As we can differentiate medical treatment by an
ordinary doctor and by a super-specialist.

3. Damage- What the loss of the Plaintiff as a consequence of failure to perform the duty
by the defendant. The damage is to be compensated by paying compensation or
damages. More the losses, more the compensation awarded by the Court.

Professional And Medical Negligence:- Negligence may be in ordinary cases of torts like
motor accidents, maintenance of buildings, etc. but it can also be in the cases where an act
is done by a professional, like a doctor, engineer, advocate, etc. In the cases of
professionals, the degree of care is more than is expected from an ordinary man.

While Applying The Standard Of An Ordinary Prudent Man, In Cases Of Professionals, It Shall
Be Treated As The Ordinary Professional Of The Status Of Defendant. The Bolam Test
Applied In Such Cases Is Ordinary Professional Of The Level Of Professional Of Standard
Which Defendant Holds.
Medical Negligence- These days, medical negligence has become an important category of
Torts arising out of the negligence of Medical Professionals. Therefore, Medical Negligence
is the negligence done by the professionals involved in medical treatment. It includes
physicians, surgeons, and nursing staff. Pathologists, and also a general staff of the hospital
or clinic.

Criminal And Civil Medical Negligence- Section 304-A IPC deals with negligent acts causing
an accident resulting in the death of a person. It is criminal negligence. And negligence
covered in general cases, causing some damage and constituting a Tort is Civil Negligence.
Whereas in Criminal Negligence the defendant is to be awarded a sentence like of
Imprisonment, and in civil negligence like Torts compensation is to be claimed by the
Plaintiff. A case may give both options to the plaintiff- to prosecute for offense (criminal
negligence) or under the Law of Torts (for civil negligence). Supreme Court in Jacob Mathew
v. the State of Punjab, AIR 2005 SC3180 has very clearly differentiated civil and criminal
negligence.

Criminal Negligence Demands Proof of More Negligence- In Jacob Mathew, the SC held
that to make the defendant liable for criminal negligence, a greater degree of negligence is
required to be proved. It is called Recklessness. But for liability in civil cases like Torts,
negligence of ordinary level is sufficient. However, in Res Ipsa Loquiter cases, even no proof
is required.

Some Imp. Cases Of Medical Negligence

1. Jacob Mathew v. the State of Punjab, AIR 2005 SC 3180 is the latest important Indian
case, where negligence was defined, civil and criminal negligence distinguished, and held
that to constitute criminal negligence a higher degree of negligence named
“Recklessness” is required to be proved, but for a Tort ordinarily prudent man
negligence that caused the damage is sufficient.
2. Indian Medical Association v. VP Shantha and Others, (1995)6SCC651, made it clear
that medical professionals are also liable like other professionals under a contract or law
of Torts. The Apex Court distinguished professional from an occupational liability. A
professional is desires to possess the required degree of competence and he must also
exercise reasonable care while giving medical advice and performing his duties.
3. In M/S Spring Meadows Hospital v. Harjot Ahluwalia, (1998)4SCC39, the Supreme
Court held that an error in judgment is not negligence, and it can also be negligence if it
would not have been made by a reasonably competent professional. The case also
defined the term “negligence” with 3 components, viz. Duty, Breach, and Resulting
Damage.
4. State of Punjab v. Shiv Lal. AIR 2005 SC 3280 was a case of a family planning operation
(Vasectomy) performed by a Govt. doctor. The question of Vicarious Liability was
involved, which the court held can be applied in such cases but only if medical
 negligence is proved. But the incompetence of the doctor who performed the operation
and negligence on his part is required to be proved.
5. In V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010)5SCC523, it was declared that
the principle of res Ipsa loquitur will be applicable in medical negligence cases. The Court
observed that the principle is to help the plaintiff who for no fault of his own is unable to
prove how the accident occurred.

The Apex Court relied on the English case Scott v. London & St. Katherine Docks Co., (1865
3H&C 596, where it was observed: “Where the thing is shown to be under the management
of the defendant or his servants and the accident is such as in the ordinary course of things
does not happen if those who have the management used proper care, it affords reasonable
evidence, in the absence of explanation by the defendants that the accident arose from
want of care.”

Doctor’s Duty Of Care Summed Up- There are 3 duties of the doctor:

1. A duty of care in deciding whether to take the case.

2. A duty of care in deciding what treatment to be given.
3. A duty of care in the administration of the treatment.

Contributory Negligence Meaning- Contributory negligence is the negligence of both

parties i.e. the plaintiff and the defendant resulting in the damage that has been caused to
the plaintiff.

Definition- The Supreme Court defined the term in the case of Municipal Corporation of
Greater Bombay v. Laxman Iyer, AIR 2003 SC 4182 as: “An accident would be said to be the
result of contributory negligence if the proximate cause of the accident is the act or
omission amounting to want of ordinary care or in Defence of duty or obligation on the part
of the complaining party (the plaintiff) has conjoined with the other party’s negligence.”

Illustrations- There are several decided cases of contributory negligence, the majority being
related to transport and electric accidents, where contributory negligence was the issue.
Some of these cases are referred hereunder:

1. Rural Transport Service v. Bezlum Bibi, AIR 1980 Cal 165, the passengers were sitting on
the roof of the bus. To overtake a cart, the driver went on the Kucha road. One
passenger fell and died. It was held the passenger on the roof also contributed
negligence along with the driver.
2. Sushma Mitra v. M.P. State Road Transport Corporation, AIR 1974 MP 68, the plaintiff
was traveling on a highway keeping his elbow on a window sill. The plea of contributory
negligence was not accepted because it was the highway, leaving no chance of close
traffic or things touching the bus. Had it been a crowded street, it would have been a
case of contributory negligence.
3. Municipal Board Jaunpur v. Braham Kishore, AIR 1978 All 168, the plaintiff going on a
bicycle without a headlight in darkness fell in the ditch dug by the defendant without
providing light danger. It was held as a case of contributory negligence.
4. Agya Kaur v. Pepsu Road Transport Corporation, AIR 1980 P&H183, an overloaded
rickshaw going on the correct side was hit by the bus from the opposite wrong side and
with high speed. It did not stop and later hit a pole. The plea of contributory negligence
of the rickshaw driver being overloaded was not accepted.

The Test for Applying Contributory Negligence

1. Had the plaintiff’s negligence not been there, the accident could have been avoided.
2. Both plaintiff and defendant did not take reasonable care.
3. The last opportunity rule can also be applied while applying the principle of contributory
negligence.

What Is the Last Opportunity Rule?

In an English case of Davies v. Mann (1882) this rule was explained as; “ When two persons
are negligent and one of them who had the last opportunity to save the accident by taking
ordinary care, which he has not taken. Then such a later person shall be only liable. But
these days the courts apply the rule of contributory negligence in such cases.

Whether Contributory Negligence Is A Defence?

As from the reported case law and the statutory provisions on the point, contributory
negligence is not a complete Defence for the defendant for escaping from the liability. It
results in the apportionment of damages.

Apportionment of Damages: - In India there is no national legislation like the Law Reform
(Contributory Negligence) Act, 1945 in England; only the Kerala Act of 1976 is there
accepting the rule of Apportionment of Damages in the case of contributory negligence. But
the case law on the point indicates that the Indian courts are accepting the rule of
apportionment of damages, thereby reducing the liability of the defendant of the extent of
contributory negligence of the plaintiff with a particular mention thereof in the judgment.

Composite Negligence: - Composite Negligence as a legal principle in Torts goes close to

the Contributory Negligence in the sense that more than one person is held to be negligent
resulting in the damage. The principle of Apportionment of damages (compensation) is also
applied in both. But the difference remains that whereas in Contributory Negligence the
other person is the Plaintiff who is suing. But in Composite Negligence, it is not the Plaintiff
but More Than One Defendants. Such persons are called “Composite Tortfeasors”.
Illustrative Cases

1. Pepsu Road Transport Corporation v. Qimat Rai Jain, 1985ACJ16(P&H), where two
passengers on the highway were resting elbows on the window sill, the truck from the
opposite direction hit the right side of the bus, causing injuries. The principle of
contributory negligence was not accepted but the composite negligence rule was
applied for the reason of the negligence of both drivers.
2. Karnataka State Road Transport Corporation v. Krishnan, AIR 1981Kant.11, where two
passengers sustained left-hand injuries when two passenger buses brushed each other.
Composite Negligence was applied.
3. Parsani Devi v. the State of Haryana, 1973 ACJ 531(P&H), negligence of State bus and
private jeep driver was held. But Haryana Govt. was made to pay the damages, leaving it
open to them for recovery from a private jeep driver.

Joint & Several Liability- High Courts are divided on this point but the later trend is:

1. The principle of Composite Negligence is applicable in Torts.

2. The liability in such cases is Joint and also several. Under it, one defendant cannot avoid
paying full compensation.
3. The defendant made to pay the full amount of compensation may recover from the
other negligent person, made a defendant or not.
4. The Court when asked specifically may apportion the liability of different defendants.

Difference between Contributory & Composite Negligence

1. Negligence is common in both cases. The standard of care, breach of duty, and the result
of damages as essentials of Negligence are equally applicable in Contributory as well as
Composite Negligence. The standards of care of an Ordinary Prudent Man or a
Professional are equally applicable.
2. Negligent Parties- In contributory negligence, they are plaintiff and defendant but in
Composite Negligence, it is not the plaintiff but more than one defendant.
3. Apportionment of Damages- in both contributory and composite negligence, the
contribution to the damage is apportioned, and accordingly, the liability can be
apportioned. But under the principle of Joint and several liabilities, in composite
negligence, the liability of even one party can be held, leaving him open to recover from
the other negligent person.
4. Lesser Compensation- In contributory negligence, the amount of compensation payable
to the plaintiff gets reduced to the extent of his liability, but in Composite Negligence,
the plaintiff gets full compensation.
5. Rule of Contributory Negligence More Accepted- The courts in India have accepted
more clearly and uniformly the rule of contributory negligence in Torts but the Rule of
Composite Negligence is not that uniformly and applied.
Conclusion- Negligence has been recognized as a well-accepted and important concept of
liability in Torts but the required statutory support is missing. Since Law of Torts is now
being more based on the written law; the enactment of Tort Law Based on Negligence is
required, particularly when liability under contributory negligence and Composite
Negligence is required to be fixed.

Q.5) Discuss The Composition And Powers Of Consumer Redressal Commissions (Forums)
Under The Consumer Protection Act, 2019.
Ans.5) Introduction- The life blood of the Consumer Protection Act lies in the Forums
created for redressal of complaints of consumers at its Three levels, viz. National, State,
and District. Under the 1986 Act, the District level authority was called District Consumer
Redressal Forum but the 2019 Act has named it District Commission, identical with the
State and National Commissions.

Composition Of Commissions:- Chapter IV of the Act provides for a 3-tier hierarchy of

Consumer Redressal Commissions as under:

1. District Consumer Disputes Redressal Commission (District Commission)

2. State Consumer Disputes Redressal Commission (State Commission)
3. National Consumer Disputes Redressal Commission ( National Commission)

Composition Of District Commission - Section 29 (1) provides for the establishment of the
District Consumer Disputes Redressal Commission by the State Government by Notification
in the Official Gazette. Every District shall have the Commission, however, it has been
provided that State Government may establish more than one District Commissions in a
District if it deems fit. President and Members- Sub-section (2) of section 29 provides that a
District Commission shall consist of-

a) One President, and

b) Minimum of TWO and maximum of numbers prescribed by the State Govt. in
consultation with the Central Government.

Qualification & Tenure Etc. - As per section 30, the Central Government Rules to be notified
shall prescribe Qualifications, Method of Recruitment, Terms of Office, and Removal of
President and Members of the District Commission. Section 31, making Transitional
provisions, clarifies that the President/Member of the District Commission before this Act of
2019 came into force shall continue his term for which he was appointed. In case any
vacancy of the President or Member arises, section 32 empowers the State Government to
authorize any other District Commission or the President or Member of any other District
Commission to exercise powers and functions of such Commission.
 Officers & Employees of Distt. Commission:- Section 33 provides for officers and employees
to be provided by the State Govt. to assist the District Commission in the discharge of its
functions The President of the Commission shall have the general superintendence over
such employees.

Jurisdiction Of Distt. Commission:- Territorial Jurisdiction- As per section 34(2), the District
Commission shall have jurisdiction within its territorial limits i.e. in case one Distt
Commission for the district, if more than one in one Distt. Then as per territorial jurisdiction
defined in the notification. As per sub-section (3), the Distt. The commission shall ordinarily
function from the District headquarter unless another place has notified another place in
consultation with the State Commission.

Parties Deciding Territorial Jurisdiction- Section 34(2) provides for deciding the territorial
jurisdiction of the Distt. Commission as under-

I. In whose jurisdiction, the opposite party or all the opposite parties ordinarily resides or
carries on a business (or its branch exists) or such party works for gain at the time of
institution of complaint; OR
II. Any of the opposite parties (where more than one) ordinarily resides/ works for gain/
carries on business at the time of filing complaint; OR
III. Where the cause of action, wholly or in part arises; OR
IV. Where the complainant himself resides or works for gain. Pecuniary Jurisdiction- Up to
One Crore rupees the value of goods or services paid as consideration.

Proceedings in Distt. Commission:- The following procedure is adopted for redressal of a

complaint in the District Commission

1. Filing of the Complaint

2. Preliminary Hearing
3. Reference to Mediation
4. Continued Proceedings Before Distt. Commission
5. Findings/Order of the Distt. Commission

Provision for Review

1. Filing Of The Complaint- The process of redressal of consumer complaints by the District
Commission initiates with the Filing of the complaint under section 35(1).

Limitation Period- Section 69 provides that the complaint is to be filed within TWO YEARS
from the day when the cause of action arises.

Who Can File the Complaint-As per section 35(1) ANY ONE of the following may file the
complaint:
a) The Consumer, whom goods have been sold/agreed to be sold/delivered/agreed to be
delivered; or who alleges unfair labour practice in respect of good/services.
b) Recognized Consumer Association, whether consumer involved is member of such
association or not.
c) One or more consumers where numerous consumers are having same interest but with
permission of District Commission.
d) The Central or State Government or the Central Consumer Protection Authority is
established under section 10 of the Act.

Documents with Complaint- Section 35(2) provides – Prescribed fee in the prescribed mode
and other required documents like receipts, etc. establishing the complaint. The complaint
can be filed electronically or by any other prescribed mode.

2. Admission Of Complaint/Preliminary Hearing:- Section 36 provides that the

proceedings in the Distt. The commission is to be held by the President and at least one
Member. Under section 36(2) the Distt. Commission by order may admit or Reject the
complaint ordinarily within 21 days. The rejection of the complaint can be ordered only
after giving a hearing to the complainant. Sub-section (3) of section 36 makes clear that
if admissibility is not decided within 21 days of filing the complaint, it shall be deemed to
have been admitted.
3. Reference To Mediation- Section 37 provides that on the first hearing after admission of
the complaint or at any later stage if it appears to the Commission that there was a
possibility of settlement between parties, the Commission may direct the parties to give
their Consent in writing within 5 Days for having dispute settled in Mediation as per
provisions of Chapter V of the Act. In case of receiving the consent, the matter shall be
referred to Mediation within 5 days of receiving the consent.
4. Hearing By The Distt. Commission- In case the matter is not referred to mediation or if
referred, there has been a failure of settlement, the Distt. The commission shall proceed
with the Complaint under section 38. The detailed procedure for such proceedings is
given under section 38(2) if it relates to the Goods and sub-section (3) when it relates to
Services.
I. The common procedure is sending a copy of the complaint to the opposite party
asking to reply within 30 days or an extended time of 15 days. If in case of goods, Lab
Analysis or Test is required, it may be got conducted at the cost of the complainant.
If the opposite party fails to file the reply, the complaint shall be decided on its
merits.
II. The decision of the Dispute is based on Documentary Evidence and Affidavit before
the Commission. As per sub-section (7), the complaint shall be expeditiously
disposed of possibly within 3 months if no lab test and within 5 months where Lab
test or analysis is required. Adjournments shall be given only on written recorded
reasons. For summoning and other purposes, the Distt. Commission has powers of
the Civil Court under CPC.
 What Findings/Orders Can Be Made?

Section 39 lists out all such orders which may be relevant in a case. These include;
removing the defect, replacing the goods, payment of compensation, discontinuance of
unfair trade practice, or sale of hazardous/ unsafe goods or any other order deemed fit
like issuing corrected advertisements and payment of Costs. The Order shall be signed
by the President and the Member who conducted proceedings.

5. Review- In case of any error apparent on the face of the record, the Distt. Commission
on its motion or application by the party within 30 days of order, may review the order
under section 40.
6. Appeal before the State Commission- by the party aggrieved by the Order to be filed
before the State Commission.

The State Consumer Disputes Redressal Commission:- State Commission is established by

the State Government by Gazette Notification under section 47 of consumer protection act
2019. The composition of the Commission and its Jurisdiction, Functions, and Powers are as
under:

Composition of the State Commission- Section 42(3) provides as under:

1. President- One, and

2. Members- Minimum of FOUR and maximum of number prescribed in consultation with
the Central Commission.

Benches Of State Commission- Section 47(2) provides for the constitution of Benches of the
Commission by the President of the Commission. These may be of one or more Members, in
case of more members, the senior-most members shall preside. Qualifications- of the
President and Members as prescribed under the Rules made by the Central Commission.
Such Rules shall also provide for the method of recruitment, appointment term of office,
resignation and removal, etc. of the President and Members of the State Commission, it is
provided under section 43.

However, section 45makes Transitional Provisions regarding the Presidents/Members of

State Commissions working at the time when the 2019 Act came into force- that they will
complete their term as per their earlier appointment.

Salaries and Allowances- the President and Members of the State Commission shall be
provided under the Notification issued by the State Government under section 44.

Officers And Staff- To assist the State Commission shall be determined by the State
Government, provides section 46. Such staff shall function under the superintendence of
the President of the Commission.
Place Of Working- Section 42(2) provides that the State Commission shall function from the
State capital and/or places notified by the State Govt. in the Official Gazette after
consultation with the State Commission.

Jurisdiction Of The State Commission

1. Territorial Jurisdiction
2. Pecuniary Jurisdiction, which can be further divided into:
a) Original Jurisdiction, and
b) Appellate Jurisdiction
3. Supervisory/Revision Jurisdiction

Territorial Jurisdiction Of State Commission- The territorial jurisdiction of the State

Commission is confined to the State itself. However, under section 62 the National
Commission may transfer cases of one State Commission to another State Commission Like
in the Distt. Commission, section 47(4) provides that the territorial jurisdiction shall be
decided by the party instituting the complaint

a) where the opposite party of each of the opposite parties or any of the opposite
parties ordinarily resides/ carries on business/ has branch office/ works for gain, or
b) where the cause of action wholly or in part arises, or
c) Where the complainant himself resides or personally works for gain.

Original Pecuniary Jurisdiction- Under section 47(1), the State Commission can entertain
consumer complaints where the value of the goods and services paid as consideration is
more than one crore but does not exceed TEN Crore rupees. However, Central Govt. may
prescribe another value.

Limitation Time- Section 69(1) provides TWO Years limitation for filing the complaint with
the State Commission under original jurisdiction.

Appellate Jurisdiction- Under section 47(1) (a) (iii), the State Commission can entertain
appeals against the orders of any District Commission within the State.

Limitation- Section 41 provides for filing the Appeal within 45 days from the date of order of
the District Commission. However, State Commission may entertain an Appeal after 45 days
if satisfied that delay was justified in the circumstances. The procedure and format of
Appeal will be as prescribed under the Rules.

Power Of Review- Section 50 gives the power of Review to the State Commission in case it
finds an error on the face of the record. A review may be on its motion or the application of
any party. It is exercised within 30 days of its order.

Power of Revision- under clause (b) of section 47(1), the State Commission is authorized to
call for records and pass appropriate orders in any consumer dispute pending before or
decided by any District Commission within the State, where it appears that such Distt.
Commission has exercised jurisdiction not vested in it or it has failed to exercise jurisdiction
vested in it or has acted illegally or with material irregularity.

Power To Transfer Cases Of Distt. Commission- Under section 48, the State Commission has
the power to transfer cases from one Distt. Commission to another Distt. Commission within
the State on the application of a party or even on its motion.

Procedure in The State Commission

1. While Hearing Complaints under Original Jurisdiction- Section 49 provides that the
procedure shall be the same as for disposal of complaints by the District Commission as
given under sections 35, 36, 37, 38, and 39. However, Sub-section (2) of section 49
additionally provides that the State Commission may also declare any terms of the
contract null and void which are unfair to any consumer.
2. Depositing 50% Amount- Section 41 provides that the State Commission shall entertain
the Appeal only if the appellant has deposited 50% of the amount ordered by the
District Commission.
3. Hearing Appeals/ The Appellate Jurisdiction- Section 52 provides for expeditious
disposal of Appeal to make effort to dispose of the appeal within 90 days. In case it
exceeds this time, the written reasons shall be mentioned.

The National Consumer Disputes Redressal Commission Establishment by Central

Government Section 53 (1) provides that the Central Govt. shall establish the National
Commission by Notification in the Official Gazette.

Place Of Functioning- Under section 53(2), ordinarily it shall be the NCR (National Capital
Region) or other places which the Central Govt. notifies in consultation with the National
Commission.

Composition of National Commission- Section 54 provides it as:

a) President- One Member,

b) Minimum Four and maximum as prescribed.

Qualifications- of President and Members as prescribed under Rules made by the Central
Govt. Such rules shall also provide the selection procedure, terms, and conditions of
appointment, salary, and allowances of the President and members of the National
Commission.

Maximum Tenure- will be of 5 years, however, eligible for re-appointment.

Age Requirement- As specified in the Rules but maximum age for the President is 70 years
and for Members, it is 67 years of age. Section 56 makes Transitional Provisions allowing
already appointed President and Members to continue their Term under the old Rules and
provisions.

Other Officers And Staff- To be appointed by the Central Govt. in consultation with
President of the National Commission under section 57. The staff shall function under the
control of the President of the National Commission.

Benches Of The commission- Under section 58(2), the National Commission may function
through its Benches consisting of one or more members.

JURISDICTION OF THE NATIONAL COMMISSION

1. Original Jurisdiction- Under section 58(1), if the value of goods or services as paid
consideration is more than TEN CRORE rupees (or other value fixed by Central Govt),
National Commission is empowered to entertain consumer complaints. LIMITATION-
Under section 69 it is the same for all commissions i.e TWO years from the cause of
action with power to entertain after it if the delay is for a sufficient cause. It is to be
condoned by recording reasons.
2. Appellate Powers- Under section 51, any person aggrieved by order of the State
Commission may file an Appeal to the National Commission within 30 DAYS from orders
of the State Commission, however, for sufficient reasons delay may be condoned.

Payment Of 50% Amount- In case an amount has been ordered to be paid by the State
Commission, the Appeal can only be filed after the appellant has deposited 50% of such
amount.

3. Deciding Substantial Question Of Law- Section 52(2) that the National Commission has
the power to hear Appeals against the orders of the State Commission if it involves a
substantial question of law.
4. Expeditious DISPOSAL OF APPEAL_ Under section 52, it is to be disposed of within 90
days unless extended for recorded reasons.
5. Procedure- For entertaining complaints is same as for District and State Commissions ie
as given under sections 35 to 39.
6. Power to Review- its orders if error on the face of the record. It is suo moto or on the
application of a party within 30 days of such order.
7. Transfer Of Cases- From one State Commission to another State Commission or from
District Commission of one State to the Distt. Commission of another State under
section 62.
8. Appeal against Order of National Commission- Lies to the Supreme Court under section
67 within 30 days of the order. The condition of depositing 50% amount ordered by the
National Commission applies in such appeal as well.
9. Administrative Control- Under section 70, National Commission has administrative
control over all State Commissions. And State Commissions have such control over the
District Commissions of their State.

Conclusion- the Consumer Redressal Commissions provide great relief to the consumers in
providing speedy services and with a very little fee. It has brought a revolution in the
adjudication of consumer disputes.

Q.6) Outline The Object Of The Moto Vehicles Act And Briefly Refer To The
Amendments Made In 2019 To Achieve This Objective.
Ans.6) Introduction- the Motor Vehicles Act, 1988 is a major statute in the area of Law on
Torts in India. The Motor Accidents and injuries resulting therefrom turn to be the
important areas where the damages are claimed from unknown persons. Therefore, the
concept of the right in rem as the distinguishing feature of civil liability in Law of Torts
becomes conspicuous in motor accident cases.

Objective of the Law- the Motor Vehicles Act, 1988 replaces the Act of 1939, which has
been repealed under section 217 of the present Act. The Objective Clause accordingly
provides “An Act to consolidate and amend the law relating to motor vehicles. However, the
objective of this Act has been outlined by the Supreme Court in Syed Mehboob V. New
India Assurance Co. Ltd, (2011)11SCC625 as: “Motor vehicles Act is beneficent legislation
intended to place the claimant in the same position that he was before the accident and to
compensate him for his loss. Thus it should be interpreted liberally to achieve the maximum
benefit.”

Important Amendments In 2019- The Act has been overhauled by amendments

incorporated in 2019. There are 93 sections of the Amending Act effecting major changes in
the law, which covers all areas related to the Motor Vehicles but we, as students of Law of
Torts, shall refer to the amendments which are important from our angle, which is as under:

1. Training Schools for Driving Licences-Section 12 relates to “Licensing and regulation of

schools or establishments for imparting instruction in driving of motor vehicles. The
2019 amendment provides for:
I. The prescribing curriculum of the training module under section 9 of the Act
shall be prescribed by the Central Government and Rules made by the Central
Govt. shall regulate such schools or establishments.
II. Any person otherwise eligible for a driving license after completing training from
such accredited school or establishment for a particular type of vehicle shall
become eligible to obtain a driving license of such type of motor vehicle.
2. National Register Of Driving Licences With Unique Number: - Section 25-A has been
inserted in the Act to provide for maintaining a National Register of Driving Licences by
 the Central Govt. The State Govts and their licensing authorities shall transmit all
information of State Registers of Driving Licences to the Central Govt. in the prescribed
form. Section 26 has also been amended Maintenance of State Registers of Driving
Licences as per the Format of the section and as prescribed by the Central Govt. The
Unique Driving Licence number under the National Register is essential for the validity of
a new or renewed license.
3. National Highway Authority Empowered To Erect Or Remove Traffic Signs On
Highways:- Under section 116, sub-section (1-A) has been inserted to authorize the
National Highways Authority or another agency by the Central Govt. for erecting or
removing traffic signs under Schedule First for smooth flow of traffic. Under Section 117
a Proviso has been inserted to obligate State Govt. and NH authority/ agency to give
primacy to the safety of road users and free flow of traffic while determining places of
traffic signs etc.
4. Good Samaritans and Their Protection- Section 134A has been inserted for this
purpose. Good Samaritan means the person who in good faith, voluntarily and without
expecting any reward or compensation provides emergency medical or non-medical
care or assistance to the victim of an accident on the scene of an accident or transports
him to hospital.
5. Compulsory Insurance of Motor Vehicles under Third Party Risks-Section 146 provides
that no person other than a passenger shall use or cause to be used a motor vehicle in a
public place unless there is a policy of insurance complying with the requirements of
chapter XI. If the vehicle is carrying or meant to carry dangerous or hazardous goods,
then an additional policy of insurance under the Public Liability Act, 1991 is also
mandatory. However, the vehicles owned and used by the Central or State Governments
are exempted unless these are connected with any commercial purpose.
6. Settlement by Insurance Company- Section 149 provides for the procedure for such
settlement. On receiving information about the accident, the insurance company shall
designate an officer to settle the claims relating to such an accident. Such an officer may
make an offer for settlement before the Tribunal to the claimant within 30 days. The
claimant may accept such offer and if it satisfies the Tribunal, it shall be deemed to be a
settlement with its consent. The payment shall be made within 30 days of such
settlement. And if the claimant rejects, the adjudication shall start before the Claims
Tribunal.
7. Duty of Insurers to Satisfy Judgments and Awards against Persons Insured In Respect
Of Third Party Risks- The insurance policy shall cover such liability when it has notice of
such award against the insured persons.
8. Right of Third Party against Insurance Company If Insured Becomes Insolvent- Section
151 provides in this regard.
9. Paying Compensation by Central Govt. Compensation in Hit and Run Cases- Section
161 provides in this regard when death or grievous hurt has been caused by person(s).
The amount of Rs. TWO lakh in death and Rs. FIFTY thousand in case of grievous hurt is
 paid ( or the higher amount fixed by the Central Govt.) under this Scheme As Interim
Compensation For Immediate Relief To The Victim Or His Family. However, on
settlement or Award of the Tribunal, such amount shall be deducted to be restored to
the scheme. Section 164 provides for liability of insurance company or owner of a
vehicle to pay compensation of 5 lakh rupees in case of death and 2.5 Lakh rupees in
case of grievous hurt without pleading for wrongful act or negligence of the owner of
the vehicle.
10. Large Scale Increase Of Penalties- The number of fines for all kinds of violations under
the Act ranging from non-production of documents by the driver of the vehicle and
going to the manufacturers of defective vehicles has been increased manifold. Offenses
not specifically punishable under the Act under section 177, now invite a 5-time penalty
from Rs. 100/- to 500/- for a first offense and from Rs. 300/- to 1500/- for a repeat.
Similarly, under sections 178- 201, there is an all-around multi-fold increase of penalty.
Community service as a punishment is another important amendment introduced in the
Act. It equally applies when the offender is a public servant like the official issuing
licenses or a police officer violating the law.
11. Delegation of Authority by Central and State Govts. - Section 215A provides that the
Central and State Govts. May delegate their authorities under the Act to any public
servant or public authority.
12. Constitution of National Road Safety Board- Section 215B has been inserted for this
purpose. Such Board shall render advice to the Central Government or the State Govt.
on all aspects of road safety and traffic management.
13. Liability Without Fault In Certain Cases Under Chapter X: - (Sections 140-144) has been
deleted.
14. And Many More Amendments- Regarding manufacture of vehicles, control of Traffic
and even accidents and claims have been made by the Amendment Act of 2019 with the
object to make the law people-friendly and effectively enforceable.

Q.7) Discuss Briefly The Provisions Of Motor Vehicles Act Relating To Getting Claims In
Accident Cases.
Ans.7) Introduction- Motor Vehicles Act is a beneficial legislation, aimed at providing relief
to the victims of accident cases. The law makes every effort to help the victim or his
family (in case he died in the accident) an assured compensation that too within the
shortest possible time. For this purpose, the Act makes arrangements for redressal
through a Tribunal. Even otherwise, there is a provision of Promoting Settlement
between the parties. In the rising Hit and Run cases, the provision has been made for
immediate compensation by the Board constituted by the Central Government with its
disbursal arrangement by the State Governments even at the local levels. This is so in
cases where the accident results in death or grievous hurt of the victim.
To ensure adequate compensations, the Act provides for a minimum amount of
compensation payable, and also payment of the expenditure of medical treatment. It
protects the persons who come forward to help the victim by helping him in medical
treatment or taking him to the hospital. Since the law is complete in dealing with all matters
of motor vehicles, it also provides for manufacturing of safe vehicles, driven by trained
persons, provision of traffic rules and their implementation, etc. so that the possible
accidents may be avoided. Therefore, the law is both preventive and remedial in dealing
with motor accidents resulting in loss of body or property of the victims of such accidents.

Procedure for Claims Under MV Act: - The Act of 1988, after amendments up to 2019
provides under Chapter XII as under:

1. Claims Tribunal Competent to Entertain Cases- Section 165 provides that the State
Government by official notification may constitute one or more Motor Accidents Claims
Tribunals with territorial areas of their jurisdiction for adjudicating the claims of
compensation. Composition and Qualification of Claims Tribunal- Section 165(2) provide
that the Claims Tribunal shall consist of such number of Members as the State Govt.
thinks fit. In case of more members, one of them will be the Chairman.

To be eligible for appointment as Member of the Claims Tribunal, the qualifications required
are:

I. Presently serving or retired Judge of High Court, or

II. Working or retired District Judge, or
III. Qualified to be appointed as High Court Judge or District Judge.

2. Nature Of Cases- Section 165(1) itself clarifies that all cases of Motor accidents where
death or bodily injury is caused to any person or persons arising out of the use of a
motor vehicle; or where damage is caused to any property of a third party; or both
bodily injury or damage of property. All such cases can be heard and adjudicated by the
Claims Tribunal.
3. Making of Application- the Claim Application shall be filed under section 166.

Who Can File?

Any of the following persons can apply:

I. A person who has sustained an injury; or

II. The owner of the property that has been damaged; or
III. The legal representative or representative of the victim whose death has been
caused; or
IV. A duly authorized agent of the person injured/ legal representative(s). In the case of
more legal representatives, one of them can also apply on their behalf. The other
representatives of the deceased will be made respondents.
 V. Limitation- Section 166(3) provides 6 months from the occurrence of an accident as
a limitation period for making an application before TRIBUNAL.
4. No Application If Compensation Received under Section 164- Second Proviso to section
166 makes this provision.

WHAT IS S. 164 COMPENSATION?

As an overriding provision, the section makes the owner of the vehicle to pay Rs. Five lakh
compensation in case of death and Rs. 2.5 Lakh in case of grievous hurt without pleading
any wrongful act, negligence, or default of the owner of the vehicle or any other person. It is
NO-FAULT LIABILITY which as a rule has been deleted under chapter X. Such compensation
is received under the procedure prescribed under section 149. It is a settlement by the
company through its officer on receiving information of the accident.

Territorial Jurisdiction- For filing application is a jurisdiction of the Claims Tribunal where
the claimant resides or carries on business or where the defendant resides.

Deemed Application- Sub-section (4) of section 166 now provides that the Claims Tribunal
shall treat any report of accidents forwarded to it under section 159 (by the police officer
investigating the case) as an application for compensation.

Option for Claim under Workmen’s (Now Employees’) Compensation Act-Section 167
provides in this regard giving an option to the claimant to receive compensation under
either of the two laws but not under both of them.

5. Procedure before the Tribunal- Section 169 provides that the procedure shall be a
summary procedure and as given under the Rules. The Tribunal has all powers of the
Civil Court. Section 168 provides as under:
I. Notice to the Insurer- after receiving application u/s 166, the Claims Tribunal shall
give notice to the Insurer (Insurance Company).
II. Giving Hearing to Parties- The insurer and other parties to be given an opportunity of
being heard.
III. Inquiry into the Claim/ Claims- the Claims Tribunal shall inquire into the merits of
the Claim or each of the Claims (If more).
IV. Award of Compensation- the Tribunal may determine the Award by determining the
amount of compensation that appears to be just. The Award shall specify the
persons to whom compensation shall be paid, who shall pay the amount i.ee. Insurer
or owner or driver of the vehicle met with an accident or by all of them.
 What Is Just Compensation?

The Courts have made clear-

a) It can be more/less than the amount claimed:- In Panna Singh v. Himangshee

Karmakar, AIR 1997 Guwahati 112- it is proportionate to injuries caused. The
Tribunal cannot go by the ready reckoner.
b) It is not a Windfall or even Pittance- in K Suresh V New India Assurance,
2012(10) Scale 512, it was held it is only just compensation as a right under the
law- not a bonanza or windfall or not a pittance. It is challenging for the Court to
determine Just Compensation. It would involve some guesswork as there cannot
be any mathematical exactitude or a precise formula.
V. INTEREST- S.171 provides the simple interest at the rate specified in the Award shall
also be payable from the date mentioned (not before the date of making the claim).
VI. Award of Compensatory Costs- S. 172 further provides if the insurance policy is void
or the claim is false, the Tribunal may order payment of compensatory costs.
VII. Amount Paid under section 161- If it was a hit and run case causing death or
grievous hurt, the amount paid by the Central Govt. ( 5/2.5 Lacs) is to be deducted
and refunded.
VIII. Copies of Award within 15 days- or before it.
IX. Depositing Amount within 30 days- Under S. 168(3), the person concerned shall
deposit the amount of Award as per direction within 30 days from the date of
announcing the award by the Claims Tribunal.
6. Appeals- There is a provision for filing an appeal by any person aggrieved by orders of
the Claims Tribunal u/s 173. The Appeal lies before the High Court.

Limitation- Appeal can be filed within 90 days from the date of Award. However, for a
sufficient cause, High Court may entertain after 90 days. Amount depositing before Appeal-
the First Proviso of the section provides that before filing the Appeal 50% of the amount of
compensation or 25 thousand rupees (whichever less) will have to be deposited as per the
direction of the High Court.

No Appeal If Less Than One Lac Compensation- Section 173(2) provides for it. Conclusion-
The procedure of claiming compensation under the Motor Vehicles Act is simple, less time-
consuming, and balancing for both the parties- the claimant as well as the tortfeasor.