Q. Define law of torts and explain its essentials?

Ans: “Tort is a civil wrong for which the remedy is a common law activity for
unliquidated damages & which is not exclusively the breach of a contract or the
breach of a trust or other merely equitable obligation”

tort can be defined as a civil wrong which can be redressed by an action for
unliquidated damages and which is other than a mere breach of contract or
breach of trust.

An analysis of the various definitions of 'Tort' reveal number of elements which

can be laid down as,

(1) tort is a civil wrong,

(2) such civil wrong is other than a mere breach of trust or contract
(3) the remedy for such civil wrong lies in an action for unliquidated damages.

The detailed discussion is as follows

(1) Tort is a civil wrong, Wrong can be civil or criminal. Tort belongs to the
category of civil wrongs. In the case of a civil wrong, the injured party institutes
civil proceedings against the wrongdoer and the remedy is damages. The injured
party is compensated by the defendant for the injury caused to him by the another
party. Whereas in the case of a criminal wrong, the State bring criminal
proceedings against the accused, and the remedy is not compensation.
Punishment is provided to the wrongdoer. In a case where the act results in both
civil as well as criminal wrong then both the civil and criminal remedies would
concurrently be available.

(2) Tort is other than Breach of Contract or Breach of Trust, in order to

determine whether the wrong is tort or not the following steps are to be followed,
(a) Whether the wrong is civil or criminal.
(b) If it is civil wrong, it has to be further seen that whether it belongs to
another recognised category of the civil wrongs, such as breach of contract
or breach of trust.
(c) It is only when the wrong does not belong to any other category of the
wrong that is, breach of contract or trust, it is tort and if the wrong is breach
of contract or trust, it is not a tort.

However, if the act involves two or more civil wrongs, one of which may be a tort,
in such a case injured party can either claim damages under law of torts or under
other breach of civil wrong for example, breach of contract, but cannot claim
damages twice.

(3) Tort is redressible by action for unliquidated damages,

Damages is the most important remedy for a tort. After the commission of the
wrong, it is not possible to undo the harm which has already been caused but it is
the money compensation which can be awarded to the injured party. for example,
if there is attack on the reputation of the person, there is nothing which can
restore his lost reputation, but money compensation equivalent to harm can be
paid to the injured. Unliquidated damages means when the compensation has not
been determined previously or agreed by the parties but it is left to the direction of
the court. These are the unliquidated damages which distinguish tort from breach
of contract or breach of trust in which damages may be liquidated that is,
previously determined or agreed to by the parties.

The definition given by the Salmond fails to underline the essential characteristics
of tortious acts. According to this definition tort is a wrong but it does not explain
what is wrong and what kinds of wrong explaining jural features of tort. Moreover
the expression "civil wrong" itself requires explanation. The definition is more
informative but this is also not perfect.

1) Wrongful Act-The first essential ingredient in constituting a tort is that a

person must have committed a wrongful act or omission that is, he must have
done some act which he was not expected to do, or, he must have omitted to do
something which he was supposed to do.
If the defendant has breached any private right of plaintiff, like has violated right of
a good reputation or has breached the right of bodily safety and freedom like if
there has been some assault on the plaintiff. Third example of wrongful act could
be The right of property,i.e of the defendant has committed trespassing.

A wrongful act may be positive act or an omission which can be committed by a

person either negligently or intentionally or even by committing a breach of strict
duty for example, driving a vehicle at an excessive speed.

2) Legal Damage-The second important ingredient in constituting a tort is legal

damage. In order to prove an action for tort, the plaintiff has to prove that there
was a wrongful act, an act or omission that caused breach of a legal duty or the
violation of a legal right vested in the plaintiff. So, there must be violation of a
legal right of a person and if it is not, there cannot be any action under law of
torts. If there has been violation of a legal right, the same is actionable whether
the plaintiff has suffered any loss or not. This is expressed by the maxim, "Injuria
sine damnun 'Injuria' refers to infringement of a legal right and the term 'damnum'
means substantial harm, loss or damage. The term 'sine' means without.

However, if there is no violation of a legal right, no action can lie in a court despite
of the loss, harm or damage to the plaintiff caused by the defendant. This is
expressed by the maxim 'Damnum sine injuria The detailed discussion of these
two maxims is as follows

Injuria sine damnum

This maxim means infringement or violation of a legal private right of a person
even if there is no actual loss or damage. In such a case the person whose right
is infringed has a good cause of action. It is not necessary for him to prove any
special damage. 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.

Thus, this maxim provides for,

(1) infringement of a legal right of a person.
(2) no actual loss or damage is required to prove.
(3) infringement of a private right is actionable per se.

In Ashby Vs White, the plaintiff was a qualified voter at a Parliamentary election,

but defendant, a returning officer, wrongfully refused to take plaintiffs vote. No
loss was suffered by such refusal because the candidate for whom he wanted to
vote won the election. Plaintiff succeeded in his action. Lord House of Lords t,
C.J., observed as follows, "If the plaintiff has a right he must of necessity
have a means to vindicate and maintain it, and a remedy if he is injured in
the exercise or enjoyment of it, and indeed it is a vain thing to imagine a
right without a remedy, for want of right and want of remedy are reciprocal".
" ubi jus, ibi remedium­Every injury imports a damage, though it does not cost a
party one penny and it is impossible to prove the contrary, for the damage is not
merely pecuniary, but an injury imports a damage, when a man is thereby
hindered of his right. As in an action for slanderous words, though a man does not
lose a penny by reason of the speaking of them, yet he shall have an action. So,
if a man gives another a cuff on his car, though it costs him nothing, not so much
as a little diachylon (plaster), yet he shall have his action. So, a man shall have
an action against another for riding over his ground, though it does him no
damage, for it is an invasion of the property and the other has no right to come
there."

In Municipal Board of Agra Verses Asharfi Lal, the facts are, the Plaintiff
(Asharfi Lal) was entitled to be entered as an elector upon the electoral roll. His
name was wrongfully omitted from the electoral roll and he was deprived of his
right to vote. It was held by the court that if any duly qualified citizen or person
entitled to be on the electoral roll of an constituency is omitted from such roll so
as to be deprived of his right to vote, he has suffered a legal wrong, he has been
deprived of a right recognised by law and he has against the person so depriving
him, a remedy, that is, an action lies against a person depriving I him of his right.

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.

An action will lie against a banker, having sufficient funds in his hands belonging
to the customer, for refusing to honour his cheque, although the customer has not
thereby sustained any actual loss or damage, Marzetti Verses Williams Bank

Damnum sine injuria

Damnum sine injuria means an actual and substantial loss without infringement of
any legal right. In such a case no action lies. There are many harms of which loss
takes no account and mere loss of money's worth does not by itself constitute a
legal damage. The essential requirement is the violation of a 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 proof,

(5) Where the harm done may be of such a nature that a criminal
prosecution is more appropriate for example, in case of public or causing
of death,

(6) There is no right of action for damages for contempt of court.

Gloucester Grammer School Case, Hen. The defendant, a schoolmaster, set up

a rival school to that of the plaintiff. Because of the competition, the plaintiffhad to
reduce their fees. Held, the plaintiff had no remedy for the loss suffered by them.
Hanker J. said "Damnum may be absque injuria as if I have a mill and my
neighbour builds another mill whereby the profits of my mill is diminished... but if a
miller disturbs the water from going to my mill, or does any nuisance of the like
sort, I shall have such action as the law gives."

Chesmore Verses Richards, The plaintiff, a mill owner was using water for over
60 years from a stream which was chiefly supplied by the percolating
underground water. The defendants dug a well on their land deep enough to stop
the larger volume of water going to plaintiff's stream. Held, that the plaintiff has no
right of action since it was a case of damnum sine injuria.

Bradford Corporation (Mayor of) Verses Pickles, In this case, 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 exercising his lawful right
although the motive was to coerce the plaintiff to buy his land. The House of
Lords approved the ruling in Chesmore Verses Richards

Ushaben v. Bhagyalaxmi Chitra Mandir – The plaintiffs sued for a permanent

injunction against the defendants to restrain them from exhibiting the film named
“Jai Santoshi Maa”. It was contended that the film hurt the religious feelings of the
plaintiff in so far as Goddesses Saraswati, Laxmi and Parvati were depicted as
jealous and were ridiculed. It was observed that hurt to religious feelings had not
been recognized as a legal wrong. Moreover, no person has a legal right to
enforce his religious views on another or to restrain another from doing a lawful
act, merely because it did not fit in with the tenets of his particular religion. Since
there was no violation of a legal right, request of injunction was rejected.

So if there is violation of right then the damages would be paid, but if there are
damages but there is no violation of legal right then there are no remedy i.e no
damages will be paid.

3) Legal Remedy for the wrongful act. As the maxim goes, Ubi jus ibi
remedium, where there is right, there is remedy. If there is a right of plaintiff for
the said wrongful act then the defendant shall get the remedy. If someone
trespasses your property, you have the right to claim remedy in the form of
damages, but if say some government officer on official duty say police or any
other investigative agency comes to your property, then you cannot claim
damages for trespassing as it is his statutory duty and right to come for
investigation purpose, since here the plaintiff does not have the right he shall
have no remedy. If a person is walking on railway track and he meets with the
accident, he or his survivor cannot claim damages from Railway Track as it was
not his right to walk on Railway Track.

Distinction between Injuria sine damnum and Damnum sine injuria

First on the basis of meaning,

Injuria sine damunm means violation of a legal right without actual loss or
damages where as Damnum sine injuria means actual or substantial Damages
without infringement of a legal right.

Second on the basis of action,

Injuria sine damunm is always actionable where as Damnum sine injuria is never
actionable.

Third on the basis of nature of wrong,

Injuria sine damunm contemplates legal wrongs where there is a remedy where
as Damnum sine injuria contemplates only moral wrongs without any remedy.

Fourth on the basis of act of defendent,

In Injuria sine damunm defendant acts illegally to violate legal right of the plaintiff
where as In Damnum sine injuria defendant acts legally and thereby causes harm
to the plaintiff.

Distinction between 'Tort' and 'Crime'

Tort differs both in principle and procedure from a crime and there are basic
differences between a tort and a crime which are as follows ,

First on the basis of nature of wrong, tort is a private wrong. Private wrong is the
infringement of civil right of an individual. It is compara-tively less serious and
labelled as civil wrong. where as crime is a public wrong. Public wrong is a
violation or breach of rights and duties which affect the community, as a wHouse
of Lords e. It is a more serious wrong.

Second on the basis of nature of remedy,

The remedy in law of tort is damages where as the remedy in crime is
punishment

Third on the basis of parties to suits,

In case of tort the suit is filed by injured or aggrieved party where as In case of
crime the complaint is filed in the name of State.

Fourth on the basis of withdrawal of suits,

In case of tort the suit can be withdrawn at any time and compromise can be
done with wrongdoer where as In case of crime the complaint cannot be
withdrawn except in certain circumstances.

Fifth on the basis of codification,

There is no codification in Law of Torts where as The Criminal law is codified.

Sixth on the basis of bar of limitation,

There is bar of limitation of prosecution in Law of torts where as There is no bar of
limitation of prosecution in crime.

Seventh on the basis of survival of action,

In case of death of tort-feaser his legal representative can be sued except when
the tort is defamation, personal injury not causing a death where as In case of
death of offender, the suit is put to an end.

Eighth on the basis of application of law,

There is no separate statute deals with tort. Tort is based on judicial decisions
where as The crimes are dealt in Indian Penal Code, 1860.

Ninth on the basis of intention, In tort, Intention is important but not in all cases,
for example, in cases of negligence where as in crime, Intention is the crux of the
offence.

Despite of these differences, the injunction may be granted in tort as well as in

crime. There are various wrongs which fall under law of torts as well as under
criminal law, for example, Assault, Defamation, Negligence, Nuisance and
Conspiracy.

Breach of Contract
Distinction between Tort and Breach of Contract
First on the basis of fixation of duty -In tort, the duty is fixed by the law itself
where as In contract, the duty is fixed by the party themselves.

Second on the basis of attribution of duty, -In tort, the duty is towards every
person of the community or society where as In contract, the duty is towards
specific person or persons.
Third on the basis of violation of rights,
A tort is a violation of a right in rem (that is, a right vested in some determinate
person and available against the world at large) where as A breach of contract is
an infringement of a right in personam (that is, of a right available only against
some determinate person or party.

Fourth on the basis of need of privity,

In an action for tort, no Privity is needed or is required to be proved where as In a
breach of contract, Privity between the parties must be proved.

Fifth on the basis of motive,

In tort, motive is often taken into account where as In breach of contract motive is
not relevant.

Sixth on the basis of damages, -In tort, measure of damages is different in

different circumstances which may be nominal or exemplary where as In Breach
of contract, damages are awarded in the form of compensation for pecuniary loss
suffered. In tort plaintiff claims unliquidated damages and the extent of those
damages is decided by the court, while in contract the plaintiff gets liquidated
damages decided by the parties itself at the time of entering the contract.

Seventh on the basis of suit by third party, -A third party can sue for tort even
though there was no contract between the person causing injury and the person
injured where as A third party to a contract cannot sue for breach of contract
except in some exceptional cases.

Eighth on the basis of intention, -Intention is sometimes taken into consideration

where as Intention, in case of breach of contract, is of no relevance.

Ninth on the basis of concern, -Law of tort is concerned with losses where as
Contract law is concerned with promises.

Tenth on the basis of period of limitations, -Limitation begins to run from the date
when damages occurs where as Limitation commences when the breach of
obligation takes place.

Res ipsa loquitur – It is based on legal maxim called “Res ipsa loquitur” which
means the thing speaks for itself. In order to use “Res ipsa loquitur ” plaintiff
must show the following:

Absence of Explanation – There is nothing to prove The impossibility of

Happening – The event would not have happened on its own in given
circumstances. Management and Control of object causing the accident in
defendant’s hand. Byrne v. Boadle (159 Eng. Rep. 299, 1863) – A barrel of
flour fell from a second-storey loft and hit the plaintiff on his head. Under
these conditions, the plaintiff could not provide direct evidence as to whether the
person responsible for the barrel had breached his duty of care.
The court held that the fact of the barrel falling is prima facie evidence of
negligence, and the plaintiff who was injured by it is not bound to show that it
could not fall without negligence.

Municipal Corporation of Delhi v. Subhagwanti (1966 AIR 1750) – Suits for

damages were led by the plaintiff as heir of three persons who died as a result of
the collapse of the Clock belonging to the defendant Corporation.

The court held that doctrine res ipsa loquitur was rightly applied as in the
circumstances of the case the mere fact that there was a fall of the clock tower,
which was exclusively under the ownership and control of the defendant, would
justify raising an inference of negligence so as to establish a prima facie case
against the defendant.

Distinction between Tort and Breach of Trust

First on the basis of damages,
Damages in a tort are unliquidated where as Damages in breach of trust are
liquidated.
Second on the basis of origin,
Law of torts has its origin as part of common law where as Breach of trust could
be redressed in the court of Chancery.
Third on the basis of law of property,
Law of tort is not regarded as a division of the law of property where as Law of
trust can be and is regarded as a division of the law of property.

Distinction between Tort and Quasi-Contract

When a person gains some advantage or benefit to which some other person was
entitled to, or by such advantage another person suffers an undue loss, the law
may compel the former to compensate the latter in respect of advantage so
gained, even though there is no such contract. The law of quasi-contracts covers
such obligations.

Distinction between Tort and Quasi-Contract

First on the basis of damages, -A claim for damages under law of tort is always
for an unliquidated sum of money where as A claim for damages is for liquidated
sum of money.

Second on the basis of attribution of duty, -Under law of torts the duty is
towards persons generally where as In a quasi-contract, the duty is always
towards a particular person. The common point between tort and quasi-contract is
that the duty in each case is imposed by the law. However, in certain cases,
where a tort has been committed, the injured party has a choice of not bringing an
action for damages in tort, but of suing the wrongdoer in quasi-contract to recover
the value of the benefit obtained by the wrongdoer. When the injured party elects
to sue in quasi-contract instead of tort, he is said to have 'waived the tort'.

What are the defences available against a tort committed?

Answer. Under certain conditions an act ceases to be wrongful, although in
absence of those conditions the same act would amount to be a wrong. Under
such conditions the act is said to be justified or excused. These conditions which
excuse or justify an act which would, otherwise, have been a tort may be divided
into two categories. First, those conditions which excuse or justify some specific
tort but do not excuse or justify torts generally. for example truth and fair comment
are defences available for the tort of defamation only. Second, those conditions
which are applicable to all torts equally. for example, defence of consent can
excuse any tort. Thus, the second category covers those "rules of immunity which
limit the rules of liability" in general and are called general exceptions.

These general exceptions, or conditions, or justification of torts are,

1. Volenti nonfit injuria- To a willing person, injury is not done

2. Act of God,
3. Inevitable accident,
4. Necessity,
5. Private Defence,
6. Acts causing slight harm,
7. Statutory Authority,
8. Act of State,
9. Judicial or Quasi-Judicial acts,

Volenti Non fit Injuria (To a willing person, injury is not done)
The maxim is based on the principle of common sense. If 1 invite you to my
house, can I sue you for trespass. Answer is no, because I have consented to
your entry upon my land. But if a guest who is to be entertained in the drawing
room enters into my bedroom without my permission, he can be sued for
trespass, because his entry into the bedroom is unauthorised. A postman entering
into the house for delivering a letter cannot be sued if he remains within a
permissible limit, because in such a case the consent is inferred but if the
postman crosses that permissible limit he can be sued.

The consent may be either— (1) express, or (2) implied.

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

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

(2) Consent cannot be given to an illegal act, No consent can legalise an

unlawful act or an act which is prohibited by law and when the tort, is of such a
character as to amount to a crime, for example, fighting with naked fists, duel with
sharp swords are unlawful, and even though the parties may have consented, yet
the law will permit an action at the instance of the plaintiff.
(3) Knowledge of risk is not the same thing as consent to run the risk, The
maxim is volenti nonfit injuria and not the scinti non-fit injuria — knowledge of
danger does not necessarily imply a consent to bear that danger. This doctrine
was for the first time enunciated in Smith Verses Baker. In this case, the
plaintiff worked in a ROCK cutting on the top of which a crane was carrying
heavy stone over his head while he was drilling the rock face in the cutting.
Both he and employers knew that there was a risk of stones falling, but no
warning was given to him of the moment at which any particular jibbing
commenced. A stone from the crane fell upon him and injured. The House of
Lords held that defendants were liable.

Thus, for the maxim volenti nonfit injuria to apply two things are necessary,

(1) knowledge that risk is there, and

(2) voluntary acceptance of the risk.

Meaning of "Rescue Cases", Winfield described rescue cases as under —

Rescue cases are typified by A’s death or injury in rescuing or endeavouring to
rescue B from an emergency or danger to B's life or limb created by the
negligence of C Is C liable to A"!

Doctrine of assumption of risk does not apply where plaintiff has under an
exigency caused by defendant's wrongful misconduct, consciously and
deliberately, faced a risk, even of death to rescue another from imminent danger
of personal injury or death, the defence of leave and license is not applicable to
the plaintiff, whether the person endangered was one to whom he owed a duty of
protection as a member of his family, or was a mere stranger lo whom he owed
no such duty.

In Slaster Verses Clary Cross Company Limited, the plaintiff was struck and
injured by a train driven by the defendant's servant while she was walking along a
narrow tunnel on a railway track owned by the defendant. The defendants, knew it
that the tunnel was used by the members of public and, therefore, they had
instructed their servants to drive vehicle slow while entering the tunnel, The
accident took place because of the negligence of the servant as he did not
observe the instructions. It was held that the defendants were liable. Denning, LJ,
said, "It seems that when this lady walked in the tunnel although it may be said
that she voluntarily took the risk of danger from the running of the railway in the
ordinary and accustomed way, nevertheless, she did not take the risk of
negligence by the driver."

In Dr. J.N. Srivastava Verses Ram Bihari Lal and others, where the doctor
observed after opening the abdomen cavity that patient's appendix was all right
but the operation of Gall-bladder was needful. He proceeded with the operation—
later on the patient died. The Court held that it was not possible to seek the
consent for the Gall-bladder operation. In such situations doctor was not
responsible.
If the plaintiff is not acting under compulsion of any duty, moral or legal he will not
be entitled to recover anything. For instance, in
Cutler Verses United Dairies London Limited., the plaintiff saw a horse
belonging to a driver getting out of his control and voluntarily went to his
assistance and was thrown back by the horse and hurt. It was held that the
maxim applied and the plaintiff was disentitled from recovering damages, as he
knew that the act was fraught with danger and he willingly undertook the same.

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

2. Act of God -Act of God includes those consequences, which are occasioned
by elementary force of nature unconnected with the agency of man. Common
examples of Act of God are the falling of a tree, a flash of lightening, a tornado or
a flood.

The essential conditions of this defence are,

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

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

Whether a particular event amounts to an Act of God is question of fact. Today the
scope of this defense is very limited because with the increase in knowledge the
foresight also increases and it is expected that the possibility of the event could
have been visualized.

Whether a particular circumstance or occurrence amounts to an act of God is a

question of fact in each case and the criteria for deciding it "is no human foresight
and prudence could reasonably recognise the possibility of such an event." There
is a tendency on the part of courts to limit the application of the defense of act of
God not because of the fact that its application in the cases of absolute liability is
diminished but because advancement in the scientific knowledge which limits the
unpredictable.

In Ramalinga Nadar Verses Narayana Reddiar, the Kerala High Court held that
the criminal activities of the unruly mob cannot be considered to be an Act of God.

In Saraswati Parabhai Verses Grid Corporation of Orissa and Others, where

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

3. Inevitable Accident
Inevitable-accident doctrine is a principle of Tort law that says that a person
cannot be liable for an accident that was not foreseeable and that could not have
been prevented by the exercise of reasonable care. Highest degree of caution is
not required. If in the performance of a lawful act, done with all due care, damage
ensues through some unavoidable reason, such damage affords no cause of
action. "People must guard against reasonable probabilities, but they are not
bound to guard against fantastic possibilities.

It is enough that it is reasonable under the circumstances. However, the courts

rarely use this doctrine at present and rely instead on the basic concepts of duty,
negligence, and proximate cause.

Inevitable-accident doctrine is also called unavoidable-accident doctrine.

It is a good defense if the defendant can prove that he did not intend to cause
harm to the plaintiff as well as could not avoid the injury caused by talking
reasonable care. Lets say in case of bodily harm plaintiff has to prove the intend
or negligence of the defendant and if he fails to prove it then it may be considered
to be an inevitable accident. These accidents are not caused intentionally and
could not possibly have been avoided through exercise of ordinary care and
caution on the part of him who causes it.

Stanley v powell (1891) 1 QB 86.

The defendant and the plaintiff were members of a shooting party. The bullet shot
by the defendant properly glanced off a tree almost at right angles and injured the
plaintiff. It was held that the accident is an inevitable accident.

Nitroglycerine case (1872) 15 Wall 524.

The defendant, a firm of carriers, was given a wooden case to carry from one
place to another. Some persons detected some leakage and box was opened
when it exploded and the office building belonging to the plaintiff was damaged. It
was held that since the defendant could not foresee the contents of the box and
its explosive nature they were not liable for damages caused by the accident.

Distinction between "inevitable accident" and "act of God", Dr. Winfield says that
"an act of God" is much older, much simpler and much more easily grasped by
primitive people than is the idea of 'inevitable accident.' A falling tree, a flash of
lightning, a tornado, or flood presents to the observer a simple and dramatic fact
which a iayman would regard as an excuse for harm done without further
argument.... But the accidents, which are not convulsions of nature, are a very
different matter. To know whether injury from a run away horse was inevitable,
one must ask 'would a careful driver have let it run away'..,. 'Inevitable accident'
differs from the act of God in

(1) not depending on 'natural forces,

(2) being a general defense. All cases of 'inevitable accident' may be divided into
two classes,

a) those which are occasioned by the elementary forces of nature

unconnected with the agency of man or other cause, and
 b) those which have their origin either in Holds or in part in the agency
of man, whether in the commission or omission, non-feasance or
misfeasance, or in any other causes independent of the agency of
natural forces. The term "act of God" is applicable to the former
class. The latter type of accidents are termed 'inevitable accident' or
"unavoidable accidents."

An act of God will be extraordinary occurrence due to natural cause, which is not
the result of any human intervention, which could not be avoided by any foresight
and care, for example, a fire caused by lighting. But an accidental fire, though it
might not have resulted from any act or omission of common carrier, cannot be an
act of God.

(4) Private Defence -Private defence is another ground of immunity well known
to the law. No action is maintainable for damage done in the exercise of one's
right of private defence of person or property provided that the force employed for
the purpose is not out of proportion to the harm apprehended. And what may be
lawfully done for oneself in this regard may likewise be done for a wife or
husband, a parent or child, a master or servant. But the force employed must not
be out of proportion to the apparent urgency of the occasion. Thus it is not
justifiable to use a deadly weapon to repel a push or blow with the hand. "Honest
and reasonable belief of immediate danger" is the test. Indian Penal Code
extends the benefit of this defense even in case of causing death in certain
circumstances.

In India the right of private defense has been given a statutory recognition in
Sections 96 to 106 of the Indian Penal Code. Though provisions of these sections
are applicable to the criminal law, the principles contained therein may profitably
be imported into the Law of Torts. Self defense as a permissible defense against
an action in torts has recently been discussed by Orissa High Court in Devendra
Bhai Verses Megha Bhai, the principle extends not only to the right of person to
protect himself but also to protect others' life, his wife, his parents and his child.
He is to use only necessary force or not to use force in excess of what is
necessary.

5.Statutory Authority- A person cannot complain of a wrong, which is authorised

by the legislature. When a statute specially authorises a certain act to be done by
a certain person, who would otherwise be unlawful and actionable, no action will
lie at the suit of any person for the doing of that act. "For such a statutory
authority is also statutory indemnity taking away all the legal remedies provided
by the law of torts for persons injuriously affected." (Salmond) If I construct a
bridge under the authority of a statute and if anybody is denied his right of way
and traffic through that way for a specific period, no suit can be brought against
me for what I have done is in pursuance of statutory authority.

Therefore, if a railway line is constructed, there may be interference with private

land when the trains are run, there may also be some incidental harm due to
noise, vibration, smoke, emission of spark etc. No action can lie either for
interference with the land or for incidental harm, except for payment of such
compensation which the Act itself may provided.

In Vaughan Verses Taff Valde Rail Company, sparks from an engine of the
respondent's Rail Company, set fire to the appellant's woods on adjoining land.
Held, that since the respondent had taken proper care to prevent the emission of
sparks and they were doing nothing more than that the statute had authorised
them to do, they were not liable.

Similarly, in Hammer Smith Rail Coch Verses Brand, the value of plaintiff's
property had considerably depreciated due to the noise, vibration and smoke
caused by the running of trains. The damage being vibration and smoke caused
by the running of trains. The damage being necessarily incidental to the running
of the trains authorised by the statute, it was held that no action lies for the same.
However, when an act authorised by the legislature is done negligently, then an
action lies.

In Smith Verses London & South Western Railway Company, the servants of
a Railways Company negligently left trimmings of grass and hedges near a rail
line. Sparks from an engine set the material on fire. By a heavy wind the fire was
carried to the nearby plaintiff's cottage which was burnt. Since it was a case of
negligence on the part of the Railways Coch, they were held liable.

Duty of Care Towards the Patient -When a doctor attends to his patient, he
owes him certain duties of care viz.,

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

(2) a duty of care in deciding what treatment to give and

(3) a duty of care in the administration of treatment. A breach of any of the

aforesaid duties gives a right of action for negligence to the patient. A breach of
duty is committed by a doctor when he does not perform the standard and degree
of care like reasonable doctor of his time or as a member of his class. A few
cases on this point are as follows,

In Kusum Sharma Verses Batra Hospital, the Supreme Court held that a doctor
is often called upon to adopt a procedure which involves higher element of risk,
but which he honestly believes as providing greater chances of success for the
patient rather than a procedure involving lesser risk but higher chances of failure
and just because a doctor, in view of the gravity of illness, has taken higher
element of risk to redeem the patient out of his/her suffering which did not yield
the desired result may not amount to negligence.

In Malay Kumar Ganguly Verses Sukumar Mukherjee, the Supreme Court held
that standard of care on the part of a medical professional involve the duty to
disclose to patients about risks of serious side effects of medicines or about
alternative treatments. If the doctor/hospital knowingly fail to provide some
amenities that are fundamental for patients, it would certainly amount to medical
malpractice. The Court further observed that an act which may constitute
negligence or even rashness under torts may not amount to same under section
304A of IPC.

In Gian Chand Verses Vinod Kumar Sharma, though the victim was admitted to
the surgical ward she was shifted to the children ward. Due to burn injuries she
could not be clothed. She should have been kept in the warmest place available
and probably for this reason on the first night she was shifted to the children
ward. She should not have been exposed to the vagaries of weather. The doctor
offended to the fact-that the woman had been kept in his ward without his
permission and forced her to leave the ward. The doctor has not given any
explanation as to why he shifted her out. The doctor was not only negligent but
also he was callous in his approach when he forced the parents to shift the child
from the children ward to veranda outside in the cold rainy weather. Thus, the
doctor is liable for the death of the woman.

In Jasbir Kaur Verses State of Punjab, a newly born child was found missing in
the night from the bed. The child was found profusely bleeding and with one eye
totally gouged near the wash-basin of the bath room. The plaintiff contended
replacement of the child whereas the hospital authorities contended that the child
had been taken away by a cat which caused the damage to him. The court
presumed that the hospital authorities were negligent and awarded compensation
amounting Rs. 1 lakh.

Contributory Negligence

the defense of contributory negligence that applies within the realm of tort law this
is the defense that the claimant themselves contributed to the final injury or loss
that occurred. The claim in respect of that damage shall not be defeated by
reason of the fault of the person suffering the damage but the damages
recoverable in respect of
thereof shall be reduced to such an extent that courts thing is just an
equitable or having regard to the claimants share and responsibility of
damage so what it's saying is that if so you establish the tort and then you would
say well this is the damages but if there is a defense of contributory negligence
then you would say X percentage will be reduced from those damages why
because the claimant themselves helped caused the loss that has occurred and
there's the two-stage
test with contributory negligence first is you have to actually prove that the
claimant was actually in fact our fault and then the second thing is you have to
show that this fault was the cause of the damage and did contribute to the
damage so if we look at the first limb thus talking about where is the claimants
own fault so for example in Owens and Brimmell 1977 the guy chose to travel
with the drunken driver therefore there was contributory negligence and in
Stapley and gypsum mines 1953 contrary to instructions the workers chose to
stay in those are unsafe working conditions therefore he had to take a portion of
responsibility for his own loss and finally in the case of Froom Vs butcher failure
to wear seat belt amounts to contributory negligence because you have to take
some responsibility for some of
these actions that you have failed to take so once you can show yes there was an
element of the claimants own fault like not wearing a seat belt then you have to
show that that not wearing a seat belt actually caused the harm

In English Law the rule of Contributory Negligence was demonstrated for the first
time in 1809, in the case of Butterfield Verses Forrester,
The facts were that the defendant for the purpose of making some repairs to his
house, wrongfully obstructed a part of the highway by putting a pole across it. The
plaintiff who was riding on his horse very violently on the road in the evening
collided against the pole and injured. It was also found as a matter of fact that
there I was sufficient light and the pole was visible from a distance of 100 yards.
The court held that the plaintiff had no cause of action against the defendant as
he himself could have avoided the accident by exercising due care.

Ellenborough C.J., stated that "a party is not to cast himself upon an obstruction
which has been made by the fault of another, and avail himself of it, if he dies not
himself use common and ordinary caution to be in the right. One person in fault
will not dispense with another's using ordinary care for himself."

Later, new development took place and the court modified the law by introducing
'Last opportunity rule'. An important case of Devis Verses Mann, illustrate this
rule.

The facts briefly were that the plaintiff left his donkey with its forelegs tied in a
narrow public street. The defendant coming with his wagon at a smart pace
negligently ran over and killed the donkey. The court held the defendant liable
because he had the last opportunity to avoid the accident by the exercise of
ordinary care that is, by going at such a pace as would be likely to avoid the
mischief. It was observed by the court that "although the ass may have been
wrongfully there, still the defendant was bound to go along the road at such a
pace as would be likely to prevent mischief. Were this not so, a man may justify
the driving over goods left on public highway, or even over a man lying asleep
there, or purposely running against a carriage going on the wrong side of the
road.

Q. Discuss with the help of cases act of God and inevitable accidents?

Ans: Act of God – Act of God includes those consequences which are
occasioned by elementary force of nature unconnected with the agency of man.

Common examples of Act of God are the falling of a tree, a flash of lightening, a
tornado or a flood.

"ACT OF GOD", means not a mere misfortune but something overwhelming.

"THE 'ACT OF GOD', is natural necessity, as wind and storms, which arise from
natural causes, and is distinct from INEVITABLE ACCIDENT”

Two Essentials of Act Of God :

1. There must be working of natural forces- An act of God is an uncommon,

extraordinary and unforeseen manifestation of the forces of nature, or a
misfortune or accident arising from inevitable necessity. An act of god cannot be
prevented by reasonable human foresight and care.

The effect of ordinary natural causes may be foreseen and avoided by the
exercise of human care. For example, the fact that rain will leak through a
defective roof is foreseeable. In case of foreseeable causes, failure to take the
necessary precautions constitutes negligence, and the party injured in the
accident may be entitled to damages. An act of God, however, is so extraordinary
and devoid of human agency that reasonable care would not avoid the
consequences. Therefore in such cases the injured party has no right to
damages.

Acts of god are generally attributable to forces of nature. They are generally in the
nature of accidents caused by tornadoes, perils of the sea, extraordinary floods,
and severe ice storms. Snowstorms of great violence have been held to be acts
of God. Whether freezes are acts of God depend on the locality and season of
the year" in which they occur, i.e., their foreseeability is affected to a greater
extent than other natural occurrences by these factors. Catastrophic earthquakes
and volcanic eruptions should be defined as acts of God since they measure up
to the accepted definitions of act of God in every
respect. However, fires are generally not considered acts of god unless they are
caused by lightning. Whether or not a particular natural event warrants such an
adjective is a function of such things as the intensity of the event, characteristics
of the area, and climatic history.

2. Occurrence must be extra ordinary and not one which could have been
guarded against- The basic and prime element of an "act of god" is the happening
of an unforeseeable event. For this, if the harm or loss was caused by a
foreseeable accident that could have been prevented, the party who suffered the
injury has the right to compensation. However, the damage caused by an
unforeseen and uncontrollable natural event is not compensable as it could not
have been prevented or avoided by foresight or prudence of man.
Moreover, courts are of the opinion that the "act of God" defence exists only if the
event is so exceptional and could not have been anticipated or expected by the
long history of climate variations in the locality. It is constructed by only the
memory of man i.e. recorded history. The courts may even demand expert
testimonies to prove that an event was unforeseeable.

Nichols vs Marsland [(1876) 2 ExD 1]- the creation of artificial lake was due to
extra ordinary rainfall which lead to damage to embankments. Water washed
away the four bridges of plaintiff. There was found to be no negligence on the part
of defendant. It was held that defendant are not liable as this accident has been
caused by Act of god.

However great the flood had been, if it had not been greater than floods that had
happened before and might be expected to occur again, the defendant might not
have made out that she was free from fault; but we think she ought not to be
held liable because she did not prevent the effect of an extraordinary act of
nature, which she could not anticipate.

3. IMPOSSIBLE TO PREVENT BY ANY REASONABLE PRECAUTIONS AND

ABSENCE OF HUMAN AGENCY CAUSING THE ALLEGED DAMAGE- It
means practically impossible to resist. Negligence constitutes failure to take the
necessary precautions. In an incident where a human factor was present, even
though the harm could not be prevented, the fact that the human factor exercised
reasonable care and precautions to prevent the harm has to be proved if the
defence of "act of God" has to prevail. If negligence is alleged and proved, the
defence of "act of God" will fail. If a home owner was negligent in properly
maintaining a tree that fell on a passerby, he cannot be exempted from liability by
"act of God" principle.

In Clark v. Multnomah, the Court made a decision that the flooding of a house
was not an act of God where it was caused by the breakage of a pipe fitting in the
house. The cause of harm was evidenced by the fact that a repairman had
worked with the part that broke just hours earlier.

ESSENTIALS
There must be operation of natural forces like exceptional rainfall, storms,
tempests etc. without any human intervention.

The incident must be extraordinary and not which could be anticipated and
reasonably be guarded.

Q. In the tort of nuisance the interference must be substantial, Discuss?

Ans: Nuisance is an injury to the right of a person in possession of property to

undisturbed enjoyment of it and results from an improper use by another person
of his own property.

Nuisance is different from trespass because it is regarded as an injury to some

right accessory to possession but no to possession it self.

Nuisance can be divided into Two broad categories.

1) public nuisance.
2) private nuisance.

1) public nuisance :

According to section 268 of I.P.C. public nuisance is a criminal offence. A person

is guilty of a public nuisance who does any act, or is guilty of any illegal omission,
which causes any common injury, danger or annoyance, to the public or to the
people in general who dwell, or occupy property in the vicinity, or which must
necessarily cause injury, obstruction, danger or annoyance to persons who may
have occasion to use any public right.

Public nuisance is an act affecting the public at large, or some considerable

portion of it, and must interfere with rights which members of the community
might otherwise enjoy. Acts which seriously interfere with the health, safety,
comfort or convenience of the public generally or which tends to degrade public
morals have always been considered public nuisance e.g. carrying on trades
which cause offensive smells or intolerable noises, keeping an inflammable
substance like gunpowder in large quantities, etc. They are dealt with by or in the
name of the state.

Public nuisance does not create a civil cause of action for any person. In order
that an individual may have a private right of action in respect of a public
nuisance, the following must be proved.

1) he must show a particular injury to himself beyond that which is suffered by the
rest of public.

2) such injury must be direct and not a mere consequential injury.

3) the injury must be substantial character.

Soltau v De Held, (1851) Sim NS 133

In this case, the plaintiff resided in a house next to a Roman Catholic Chapel of
which the defendant was the priest and the Chapel Bell was Rang at all hours of
the day and night. It was held that the ringing was a public nuisance and the
plaintiff was held entitled to an injunction.

2) Private nuisance :

It may be defined as unlawful interference with another's use and enjoyment of

property or some right over or in connection with property. Action for nuisance lies
for the protection of plaintiff's property rather than for damages.

Private nuisance is the using or authorizing 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 by interfering materially with his
health, comfort or convenience. Private nuisance include acts leading to

a) wrongful disturbances of easements ( restrictions of natural rights ) or

servitudes. E.g. obstruction to light and air, disturbance of right to support or

b) wrongful escape of deleterious substance into another's property such as

smoke, smell, fumes, gas, noise, water, filth, heat, electricity, disease-germs,
trees, vegetation, animals, etc.

c) improper use of one's own property resulting in physical injury to the person,
property or comfort of the occupier of another property. Some of the actions for
discomfort are vibrations caused by machinery and dust etc. It is actionable only
as as a nuisance if done maliciously.

Highway :
If a nuisance is created on a highway by a private individual, liability would arise if
any person is injured as a result of what has been done irrespective of
negligence. If anything is placed on a highway which is likely to cause an accident
being an obstruction to those who are using the highway on their lawful occasion
such as vehicle unlighted and unguarded standing there at the night and an
accident results, there is an actionable nuisance.

Ware v/s. Garston

A trailer attached to a lorry was kept unattended on the highway. At night time no
rear light was shown. A motorcyclist ran into the trailer. It was held that it was an
obstruction on the highway and as such as a public nuisance.

Ball Vs Ray…The occupier of a house in a street in Mayfair had many years

previously converted the ground floor into a stable. A new occupier altered the
location of the stable so that the noise of the horses became an annoyance to the
next-door neighbour and prevented him from letting his house as lodgings.

Held:..a case of nuisance- Lord Selborne LC said: ‘In making out a case of
nuisance of this character, there are always two things to be considered, the right
of the Plaintiff and the right of the Defendant. If the houses adjoining each other
are so built that from the commencement of their existence it is manifest that
each adjoining inhabitant was intended to enjoy his own property for the ordinary
purposes for which it and all the different parts of it were constructed, then so long
as the house is so used there is nothing that can be regarded in law as a
nuisance which the other party has a right to prevent. But, on the other hand, if
either party turns his house, or any portion of it, to unusual purposes in such a
manner as to produce a substantial injury to his neighbour, it appears to me that
that is not according to principle or authority a reasonable use of his own
property; and his neighbour, shewing substantial injury, is entitled to protection. I
do not regard it as a reasonable or as a usual manner of using the front portion of
a dwelling house in such a street as Green Street, that it should be turned into
stables for horses; and, if it is so used, then the proprietor is bound to take care
that it is so used as not to be a substantial annoyance, detrimental to the comfort
and to the value of the neighbours’ property.’

Robinson v Kilvert [1889] 41 Ch D 88

Nuisance – Sensitivity of the Claimant
Facts
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.

Held
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. The defendants had acted as reasonable tenants of
their property. It had been shown that the heat from the factory would not have
damaged ordinary paper. Instead the defendant’s brown paper happened to be
unusually sensitive to the heat, and it was this which caused the damage rather
than anything that the defendants had done wrong. Accordingly, this could not be
considered a nuisance caused by the defendants. Where one carries on an
unusually delicate trade, they cannot then complain because they are injured by
the defendant’s carrying on their lawful business on their property if this would not
have injured anything but an unusually delicate trade.

“TORT of nuisance can not be held applicable for exceptionally delicate

trade”

Noise :
Quietness and freedom from noise are indispensable to the full and free
enjoyment of a dwelling-house. No proprietor has an absolute right to create
noises upon his own land so as to cause nuisance to his neighbours or public. As
to the extent or amount of noise or annoyance from noise is sufficient to sustain
an action depends entirely on the surrounding circumstances like the place where
the time when the alleged nuisance, the mode of committing it, how and the
duration of it, whether temporary or permanent, occasional it is according to that
to that of man of ordinary habits and not of man of fastidious taste, or of over-
sensitive nature. In a locality devoted to noisy trades such as printing and allied
trades, if a printing house or a factory subjects the occupier of an adjoining
residence to such an increase of noise as to interfere substantially with the
ordinary comfort of human existence according to the standard of comfort
prevailing in that locality, occupier to an injunction.

Substantial Interference: Since, tort law aims to maintain a balance between the
right of the occupier to do what he likes and the right of the neighbour not to be
interfered with, it is paramount to show leniency towards the measure of
interference that stems out of proximity between two individuals. Therefore, the
situations of interference enforceable by law must be higher than a certain
magnitude. As Lord Selbourne stated in Gaunt v. Fynney, ‘Such things to offend
against law must be done in a manner, which beyond fair controversy, are to be
regarded as excessive.’ But once again a question of whether an interference is
sufficiently excessive is a question of fact and is different for different cases. The
courts have however devised yardsticks in order to gauge the magnitude of harm
caused to the neighbour. The first is the material damage caused to the land. The
kind of nuisance that causes material damage to land includes collapse of
defendant’s property onto claimant’s land, drenching or flooding, damage by
noxious fumes and damage by vibration etc in which cases almost indisputably
the tort of private nuisance is established. The second is that of the location of the
claimant’s premises. This is given importance by the courts because the
expectations of the claimant in terms of comfort, quiet and peace varies according
to the location of his house or business; also interference which is permissible in
one area may not be permissible in another. A good illustration of the same would
be a successful claim of private nuisance resulting in an injunction on the practice
of prostitution in an adjacent land. There are also secondary requirements like
‘nuisance to servitude’, where in some rare cases law provides remedy for the
interference to luxury of right to a view or right to light.

Certain ineffective defences in case of nuisance:

Nuisance due to act of others.

Public Good-What is nuisance to one is good for public at large.

Reasonable Care

Plaintiff coming to place of nuisance

Abatement of Nuisance:
Occupier of land is permitted to abate. To terminate the nuisance by his own act.
E.g if the branches of a tree from neighbouring plot, the plot owner can cut the
over hanging branches.

Terminate the nuisance by his own act.

Notice to other party is required.

Q. With the help of relevant case law and legislation discuss the various
principal in the field of contributiry negligence.

Ans: Rule of Contributory Negligence says that one who by his

own negligence contributed to the injury of which he complains cannot maintain
an action against another in respect of it. Contributory negligence is an
expression which implies that the person who has suffered damage, is also guilty
of some negligence and as contributed to the damage

Negligence is “omission to do something which a reasonable man, guided by

those ordinary considerations which ordinarily regulate human affairs, would do or
the doing of something which a reasonable and prudent man would not do”.
This does not depend on the breach of any duty between the plaintiff and the
defendant but depends entirely on the question whether the plaintiff could have
reasonably avoided the consequences of the defendant's negligence.
In Managing Director, Tamil Nadu State Transport Corporation v. Ayyammal, it
was observed that negligence is not only commission of an act but is also an
omission to do something which a reasonable man would do or is obliged to do.
Negligence does not always mean absolute carelessness, but want of such a
degree of care as is required in particular circumstances. Negligence is failure to
observe for the protection of the interests of another person, the degree of care,
precaution and vigilance, which the circumstances justly demand, whereby such
other person suffers injury. The idea of negligence and duty are correlative.
Negligence means either subjectively a careless state of mind or objectively
careless conduct. Negligence is not an absolute term, but is a relative one, it
rather a comparative term. What constitutes negligence varies under different
conditions and in determining whether negligence exist in a particular case, or
whether a mere act or course of conduct amounts to negligence, all the attending
and surrounding facts and circumstances have to be taken into account. To
determine whether an act would be or would not be negligent, it is relevant to
determine, if any reasonable man would foresee that the act would cause
damage or not.
In Municipal Corporation of Greater Bombay v. Laxman Iyer. The omission
what the law obligates or even the failure to do anything in a manner, mode or
method envisaged by law would equally and per se constitute negligence on the
part of such person. If the answer is in the affirmative, it is negligent act. In
Poonam Verma v. Ashwini Patel & others it was held by the Supreme Court that
negligence as a tort is the breach of a duty caused by omission to do something
which a reasonable man would do or doing something which a prudent and
reasonable man would not do. The breach of duty may occur either by not doing
something which a reasonable man, under a given set of circumstances, would
do, or by doing some act which a reasonable prudent man would not do. In motor
accident cases negligence is understood as failure in duty to take care which
implies the degree of care that ought to be taken by a reasonable man in a given
set of circumstances. In M S Grewal v. Deep Chand Sood it was held that
negligence is breach of duty or lack of proper care in doing something. It is want
of attention and doing something which a prudent and reasonable man would not
do.
Q. Write short notes on the following:
Damnum sine Injuria:
Injuria Sine Damnum:
Ans: Damnum Sine Injuria: All wrongs are mischievous in the eyes of law but the
converse is not true. There may be cases in which damage is caused knowingly
and willfully but the law will not House of Lords d the wrongdoer accountable for
it. The law ignores the harm of his nature because no legal injury is caused. Such
cases are covered under the maxim - damnum sine injuria. The word "injury”
signifies “an act contrary to law" or violation of legal right. The maxim means that
damage without “injuria ” “infringement of right” is not actionable. Mereloss in
money or money’s worth does not itself constitute legal damage and is not a good
ground of action. There are many acts, which though harmful, give right of action
to him who suffers their effects. Damage so done and suffered is called "damnum
sine injuria” i.e. actual and substantial loss without infringement of any legal right
and in such cases no action lies. Hence the maxim implies that loss or detriment
is not a ground of action, unless it is the result of a species of a wrong of which
the law takes cognizance. Thus if I have a mill, and my neighbour sets up another
mill, and thereby the profits of my mill fall off, I cannot bring an action against him
eventhough, I have suffered damage.
SALMOND’S CLASSIFICATION
SALMOND classifies the principal cases of “damnum sine injuria ” as follows:
i) Where the harm is caused by a persons’ lawful exercise of his own right,
as in the
case of loss inflicted on individual traders by competition in trade.
ii) Where the defendant exercises alright to his property.
iii) Where the damage is caused by a man acting under necessity.
 iv) Where the harm complained is too trivial, too indefinite or too difficult to
prove
for effective legal recogniton.
v) Where the harm caused is of such a nature that the law considers it
expedient to
confer any right of pecuniary redress upon the individual’s injury.
Gloucester Grammar School Case
The defendant a school maser, set up a rival school next door to the plaintiff.
Plaintiff sued the defendant for the loss. It was held that no suit could lie on the
ground that “bona fide ” competition can afford no ground of action, whatever
damage it may cause.

Chasemore V. Richards(1819) 7H.L.C. 349

In this case a land owner and a mil owner who had for about six years enjoyed
the use of a stream, which was chiefly supplied by percolating underground
water; has lost the use of the stream after an adjoining owner had dug, on his
own ground an extensive well for the purpose of supplying water to the
inhabitants of the district. In an action brought by the land owner it was held that
he had no right of action.

Ushaben v. Bhagyalaxmi Chitra Mandir – The plaintiffs sued for a permanent

injunction against the defendants to restrain them from exhibiting the film named
“Jai Santoshi Maa”. It was contended that the film hurt the religious feelings of the
plaintiff in so far as Goddesses Saraswati, Laxmi and Parvati were depicted as
jealous and were ridiculed. It was observed that hurt to religious feelings had not
been recognized as a legal wrong. Moreover, no person has a legal right to
enforce his religious views on another or to restrain another from doing a lawful
act, merely because it did not fit in with the tenets of his particular religion. Since
there was no violation of a legal right, request of injunction was rejected.

Mogul Steamship Co. v. McGregor Gow and Co.- A number of steamship

companies combined together and drove the plaintiff company out of the tea-
carrying trade by offering reduced freight. The House of Lords held that the
plaintiff had no cause of action as the defendant had by lawful means acted to
protect and extend their profits.

Action v. Blundell – The defendants by digging a coal pit intercepted the water
which affected the plaintiff’s well, less than 20 years old, at a distance of about
one mile. Held, they were not liable. It was observed: “The person who owns the
surface, may dig therein and apply all that is there found to his own purposes, at
his free will and pleasure, and that if in the exercise of such rights, he intercepts
or drains off the water collected from underground springs in the neighbour’s well,
this inconvenience to his neighbour falls within description damnum abseque
injuria which cannot become the ground of action.

Injuria Sine Damnum: INJURIA SINE DAMNUM

“Injuria sine damno" - literally it means injury without damages and is limited to
those kinds of breach of law which consists in the violations of another’s private
rights. Law recognizes certain permanent importance for an individual’s living in
the society that an infringement of it “ipso facto” presents a cause of action. The
maxim, therefore, means that where there is an infringement of an absolute
private right is so infringe has a direct cause of action. In such a case it is no
necessary for the plaintiff to prove damage, for the law presumes damage, when
an absolute right is infringed. “Injuria sine damno” therefore in other words,
provides that actual perceptible damage, loss or detriment is not indispensable as
a foundation in an action for tort. Trespass to person i.e. assault, battery, false
imprisonment, libel and trespass to property, whether it be land or goods are
instances of tort that are actionable "per se The maxim is just converse of the
earlier maxim “damnum sine injuria”. There are
certain acts which though not harmful, are actionable. In other words, an injury
without damages incurs civil liability.

The case of “Ashby V. White"- the leading case on the maxim is "Ashby V White”
wherein it was held that where a person is injured in the exercise or enjoyment of
a right, an action is maintainable whether or not any material damage has been
caused. W, the returning officer, in a parliamentary election wrongly rejected A’s
vote. The candidates for whom A would have voted were elected. A sued W and
was awarded $200/- damages. In the course of his judgment Hott, C .J., observed
“if a plaintiff has a right, he must of necessity have a means to indicate and
maintain it, and a remedy if he in injured in the exercise or enjoyment of it must
be provided; and indeed it is a vain thing to imaging a right without a remedy for
want of right and want of remedy are reciprocal”.

The case of Ashby V. White is an illustration on the point of “Injuria sine damno In
this case the plaintiff was wrongfully prevented from exercising his right to vote by
the defendant returning officers in a parliamentary election. The candidate for
whom the plaintiff wanted to caste his vote had come out successful in the
election, still the plaintiff could recover damages against the defendants for
maliciously preventing him from exercising his statutory right of voting in the
election. Lord HOTT CJ. observed that there was the infringement of a legal right
vested in the plaintiff hence the defendants were liable. Since no actual damages
were caused, the court awarded $20 by way of recognition of plaintiffs legal right.

Q. What is defamation? What are the defences available to a defendant in

defamation suite? Can a defamation of dead persons be possible?

Ans: He that filches me of my good name robs me of that which not enriches him
but makes me poor indeep…Shakespere in Othello.

Law of defamation is a restriction imposed on the freedom of speech. It is aimed

at protecting the honour and dignity of mankind. Honour and dignity relate to the
personality of a man. Therefore, law of defamation is recognized as a universal
rule applicable to all civilised countries, But the rule varies from country to country
on account of variation of social, political and economical conditions. The framing
of rules, therefore, depends on the philosophy of the particular community or
society.
In Dixon vs. House of Lords den case it was held that “A mans reputation is his
property, more valuable than any other property.” Character and reputation
different thing. The character of a person signifies the reality about him. Where as
reputation indicates only what is reported of him by others. It is constituted by
public opinion.
Hulton Co v Jones

Legal rule: In an action for libel it is no defence to shew that the defendant did not
intend to defame the plaintiff, if reasonable people would think the language to be
defamatory of the plaintiff.

FACT: The defendant, owners and publishers of a newspaper, published in an

article with defamatory statements of a person Mr Artemus Jones, believed by the
author of the article and the editor of the paper to be a fictitious personage with
an unusual name. The name was that of the plaintiff, who was unknown to the
author and the editor. In an action for libel against the defendants it was admitted
that neither the writer nor the editor nor the defendants intended to defame the
plaintiff, but evidence was given by his friends that they thought the article
referred to him

Held: The claim succeeded. The test was not whether the defendant intended to
refer to the plaintiff but whether the words published were understood by
reasonable people who knew the plaintiff to refer to him. Defamation is a tort of
strict liability and does not depend upon the intention of the publisher.

South India Railway Co vs Ramakrishna

A railway guard, having reason to supposo that a passenger travelling- by u
certain train from Madras to Ghingleput had linrdiasedHs ticket at un intermediate
station, called upon the plavntifi and others of the passengers to produce their
tickets. As a rciaBon for demanding the proJuction of the pkintifE’s ticket, he said
to him in the presence of tho other passengers “ I suspect you are travelling with
a wrong (or fcilso) ticket,” which was the defam-, ation complained of. The guard
-svas held to liave spoken tho above words b on&.jlA&: Ssld, tho plaintiff was nob
entitled to a dooree for damages.

Sim v Stretch [1936] 2 All ER 1237

Libel; telegram; words capable of defamatory meaning
(224 words)
Facts
The claimant had a housemaid for a limited period of time, who re-entered the
service of the defendant. Upon the maid’s arrival, the defendant sent the following
telegram to the claimant: “E. has resumed her service with us today. Please send
her possessions and the money you borrowed, also her wages to […]”. The
claimant sued for libel, arguing that the telegram included defamatory allegations
– namely, that they implied financial difficulties on the claimant’s side (e.g. that he
was forced to borrow, failed to pay the maid’s wages, etc.). The defendant denied
that these words could be capable of constituting defamation in themselves or by
do.
Held
Lord Atkin established a test in his judgment to decide whether words ‘in their
ordinary signification’ were capable of defamatory meaning. Stating that the
classic approach whereby the claimant is exposed to hatred, ridicule or contempt
might be too narrow, he proposed the following test: “would the words tends to
lower the plaintiff in the estimation of right-thinking members of society
generally?”. If the words are found to be capable of constituting defamation, then
it is for the jury to decide whether they were defamatory in the circumstances of
each case. In the present case, the defendant’s words were found not to be
reasonably capable of a defamatory meaning – so the claimant’s action was
dismissed.

Huth v Huth [1915] 3 KB 32

No publication of libel where butler opened unclosed letter.

Facts
The defendant, Captain Huth, sent an allegedly defamatory letter in an un-closed
envelope through the post to his four children. The letter contained an implication
that the children were illegitimate. The letter was taken out of the envelope and
read by a butler in breach of his duties and out of curiosity. At trial, the claim was
dismissed on the basis that there was no evidence of publication of the libellous
information.

Issue
On appeal, counsel for the appellants contended that the defendant knew that the
document was likely to be taken out of the envelope and read and he must
therefore be responsible for it. The only obligation on the plaintiffs was to show
that the words are susceptible to defamatory meaning. The respondent argued
that there had never been a successful libel claim where the publication had been
sent in an envelope. This should be contrasted with a postcard or telegram where
there is a reasonable inference that the matter would be published.

Held-Not a case of defamation. The reading of the letter was unauthrised.

The Court of Appeal was of the view that it was not right to treat a letter in an
“ungummed” envelope with a halfpenny stamp as though it were an open letter.
Such a letter required some act by a person before they could be read and the
Court could not presume that such letters would be opened in the ordinary course
of business. Therefore, the defendant could not be taken to have known that the
letter would have been taken out of the envelope and there was accordingly no
evidence of publication of the libel in the case.

Theaker v Richardson [1962] 1 WLR 151

Claim of libel where husband opened defamatory letter addressed to wife

Facts
The defendant (Richardson) wrote to the plaintiff (Theaker) accusing her of,
amongst other things, being “a very dirty whore.” Theaker’s husband opened the
letter thinking that it was an election address. At trial, the jury found that there was
a valid claim of libel because Richardson anticipated that someone other than
Theaker may have opened the letter.

Issue
Richardson appealed and contended that the findings of the jury were perverse.
Richardson argued that there was no “publication” of the libel because the
defendant could not have anticipated that Theaker’s husband would have opened
the letter. It was conceded that there was no publication other than to Theaker’s
husband. Thus, the key question was whether the libel was published where only
Theaker’s husband had read it.
Held
At the trial of the action, in which the plaintiff claimed, inter alia, damages for libel,
the jury found, in answer to questions left to them, that the defendant anticipated
that someone other than the plaintiff would open and read the letter, and that it
was a natural and probable consequence of the defendant's writing and delivery
of the letter that the plaintiff's husband would open and read it, and they awarded
the plaintiff GBP500 damages.

Winfield's definition on defamation is exhaustive. Defamation is the publication of

a statement which reflects on a person's reputation and tends to lower him in the
estimation of right thinking members of soolety generally or tends to make them
shun or avoid him.

The analysis of the aforesaid definition yields three essentials in order to

constitute defamation.

They are:
(I) the words must be defamatory
(II) They must refer to the plaintiff and
(III) they must be maliciously published.

DEFENCES IN DEFAMATION SUIT :

The defendant in a suit for defamation under the English Law Is entitled to take all
or any of the six defences viz. (I) justification ■; (II) Absolute privilege; (III)
Qualified privilege* (IV) Fair comment; (V) Consent and (VI) Apology.

I. JUSTIFICATION :
Justification connotes that the statement made by the speaker is true. Salmond
says that " he who attacks the reputation of another does so at his peril; and
mistake however Inevitable,is no excuse". But no action will lie for the publication
of a defamatory statement if the defendant pleads and proves that it is true Onus
heavily lies on the defendant to justify the defamatory statements. In Mcnherson
v.Panic Is Little Date J. held, " For the law will not permit a man to recover
damages in respect of an injury to a character which he either does not or ought
not to possess."

If statement is false no justification that the defendant honestly and on

reasonable grounds believed it to be true, means that the statement has to be
true and if statement is false then the defence that the defendant innocently and
unintentionally made the statement that would not be taken as a defence.

In Radheyshyam tiwari vs Eknath, Defendant editor printer and publisher of

newspaper articles against Plaintiff who was a Block Development Officer. In
articles he alleged that the plaintiff had issues false certificates after taking
bribes. In trial, the statements were not found to be true and defendant was held
liable.

ii) Fair comment: When we make any comment without any bad intention that is
said to be fair comment. This efence is available to authors, editors and critics.
The comment must be fair without any malice and bad intention. The said
comment must be in the public interest e.g Rohit makes a comment that Rakesh’s
book is foolish and he must be a weak man then this comment is a fair comment
as he has first read the book and then did the critical comment. Now if he says
that I am not surprised that Rakesh’s book is foolish for him being a weak writer.
Now this comment is made without reading the book and with a prejudice that
Rakesh is a weak writer. While the former is not a defamation but the latter is a fit
case of defamation.

McQuire Vs Western Morning News: The paper had carried an article with a
swingeing condemnation of a musical. It defended the defamation action claiming
fair comment. The comment was “ A three act musical absurdity, written and
composed by T C McQuire is composed of nothin but nonsense of a not very
humrous character, whilst the music is far from attractive”. This is a critical
comment and hence it is not a case of defamation.

Held: Collins MR said that there was no evidence of actual malice, no personal
imputations and no allegations of fact. In these circumstances, if comment was to
be ‘fair’ it had to be relevant and not such as to disclose in itself actual malice

iii) Privelige: Right of free speech out weighs the plaintiff’s right to reputation. We
have two types of priveliges, absolute privelige and qualified privelige.

Absolute Privelige: If no action lies for defamatory statement even if the statement
if false. Sometime it may happen that even if a statement is false still no
defamatory action lies. E;g if in a parliament a parliamentarian makes a statement
and it may happen that the statement is found to be false, still no action lies on
the parliamentarian as parliamentarians have absolute privelige for the
proceedings in parliament.

In Judicial proceedings anything states by counsel or by the judge they have an

absolute privilege and anything that is stated may be found to be malicious still no
action lies.

Qualified Privilege: Action can be taken but if the following conditions are met, no
action can be taken:
a) Statement should be without malice
b) There must be an occasion for making the statement.
Such statements are made while discharging the duty or the statement is made
for protection of an interest.

According to Salmond " a privileged statement may be defined as one which is

made in such circumstances as to he exempt from the rule that a man attacks the
reputation of another-at his own risk." It is the occasion and not the statement
which is privileged. There are two kinds of privileges viz. absolute privilege and
qualified privilege. Absolute privilege : A statement Is said to be absolutely
privileged when it is of such a nature that no action will lie for it,however,false and
defamatory It may be, and even though it Is made maliaiously I.a. from some
improper motive. The freedom of speech privalls over another’s reputation under
the absolute privilege. The absolute privileges are seven in number :

i) Any statement made in the course of and with reference to judicial

proceedings by any judge, juryman,party,witness or advocate.

ii) Fair,accurate and contemporaneous report of public,judicial proceedings

published in a news paper.

iii) Any statement made in parliament by a member of either House.

iv) Parliamentary papers published by the direction of either House and

any re-publication thereof by any person in full.

v) Any statement made by one officer of State to another in the course of

his official duty.

vi) Communication between husband and wife.

vii) Certain publications made by the Parliamentary Commissioner are

protected and also certain reports and other communications between a
local Commissioner and a local Government authority.

Courts in India do not impose liability for defamation of the dead. One of the best
comments on this issue was given by honourable Justice R Basant in the
landmark case Raju vs Chacko on 5 September, 2005 (Equivalent citations:
2005 (4) KLT 197) “A claim for compensation for defamation under the civil law
may not be maintainable in respect of defamation of a deceased person on the
principle that a personal right of action dies with the person. (Actio personalis
moritor cum persona). But still the law makers felt that defamation of a deceased
person can legitimately give rise to a criminal prosecution for the offence of
defamation against a deceased person.” The honourable court further elucidated
“Any person may get triggered to commit offences and thus cause breach of the
peace if a deceased member of his family or other near relative of his were
defamed. Accepting this reality in life, Explanation-I has been added to Section
499 IPC to ensure that defamation of a deceased person is also culpable.” The
Honourable court further explained who has the cause of action “The offending
publication should not only be defamatory to the deceased. It must also be
intended to be hurtful to the feelings of his family or other near relative, it is
stipulated. Every lineal descendant or every person interested in the deceased
cannot complain of defamation against the deceased. Firstly, such complainant
must be a member of the family of the deceased or must be a near relative of his.
The words “family or other near relative” significantly are not defined in Section
499 IPC. Such expressions are not defined in the Indian Penal Code. The
expressions “family” and “other relative” are expressions which can have different
shades of meaning depending on the circumstances and the purpose which a
statutory provision is intended to achieve. Any attempt to understand the sweep,
width and amplitude of the expressions “family or other near relative” must
certainly be made conscious of the purpose which Section 499 IPC and
Explanation-I thereto have got to achieve.”

In the landmark case Mrs. Pat Sharpe vs Dwijendra Nath Bose on 12 July,
1963the Honourable court held that “Even if Netaji is dead, it is defamation
because the imputation would have harmed his reputation if alive and the
imputation must be said to have been intended to be hurtful to the feelings of his
family or other near relatives, Thus in any view of the matter the words used do
amount to defamation.”

iv) Statements made in confidential relationship are under qualified privilege.

a) Husband and wife
b) Father and his son or daughter
c) Guardian and ward
d) Master and servant
e) Solicoter and client
f) Partners
g) Close friends.
Burden of proof in case of Defamation: Burden of proof lies on Plainteff. For
Innuendo the plaintiff has to prove in court that the special circumstances which
make the word actionable and he has to make out the statement has latent or
secondary meaning which makes the statement actionable.

When the defence to defamation the burden of proof is on defendant, the

defendant has to prove that the statement made is not defamatory.

Who can Sue: The person defamed can only initiate the case of defamation.
Damage to other person does not entitle them to sue.

Communication between Husband and wife:

M.C. VERGHESE v. T.J. PONNAN & ANR.

FACTS OF THE CASE
The first respondent wrote letters to his wife who is the daughter of the appellant.
The letters contained defamatory imputations concerning the appellant. The
letters were handed over to the appellant and he filed a complaint for defamation
against the first respondent. The Magistrate held that a communication between
spouses of a matter de (amatory of another did not amount to publication and that
no evidence could be given of it under s. 122 of the Evidence Act, 1872, against
the first respondent, and discharged him. The Court of Session set aside the
order but the High Court restored it. While the appeal against the order of
discharge was pending in this Court a decree of nullity of marriage was passed
against the first respondent on the ground of his impotency.

Rathi daughter of M.C. Verghese was married to T.J. Ponnan. On July 18, 1964,
July 25, 1964 and July30, 1964, Ponnan wrote from Bombay letters to Rathi who
was then residing with her parents at Trivandrum which it is claimed contained
defamatory imputations concerning Verghese. Verghese then filed a complaint in
the Court of the District Magistrate, Trivandrum, against Ponnan charging him
with offence of defamation.

ISSUE RAISED
Ponnan submitted an application raising two preliminary contentions—
(1) that the letters which formed the sole basis of the complaint were inadmissible
in evidence as they were barred by law or expressly prohibited by law from
disclosure; and

(2) that uttering of a libel by a husband to his wife was not “publication” under the
law of India and hence cannot support a charge for defamation, and prayed for
fan order of discharge, and applied that he may be discharged.

JUDGEMENT
DISTRICT COURT
The District Magistrate held that a communication by a husband to his wife or by
a wife to her husband of a matter defamatory of another’ person does not amount
in law to publication, since the husband and wife are one in the eye of the law.

In so holding, he relied upon the judgment in Wennhak v. Morgan and Wife(1). He

also held that the communication was privileged, and no evidence could be given
in court in relation to that communication. He accordingly ordered that Ponnan be
discharged under s. 253 (2) Code of Criminal Procedure.[1]

In a revision application filed by Verghese before the Court of Session, the order
was set aside and further enquiry into the complaint was directed. In the view of
the learned Sessions Judge the doctrine of the common law of England that a
communication by one spouse to another of a matter defamatory of another
person does not amount to publication has no application in India, and s. 122 of
the Indian Evidence Act does not prohibit proof in the Court by the complainant of
the letters written by Ponnan to his wife.

HIGH COURT
The case was then carried to the High Court of Kerala in revision. The High Court
set aside the order of the Court of Session and restored the order of the District
Magistrate. The High Court held that from the averments made in paragraphs 9 to
11 of the complaint it was clear that the writing of defamatory matter by Ponnan to
his wife Rathi was not in law publication, and that “if the letters written by Ponnan
to his wife cannot be proved in court either by herself directly or through her
father, in whose hands she had voluntarily placed them, the imputations therein
fell outside the court’s cognizance and no charge under s. 500 Indian Penal Code
could be deemed to be made out”.
ANALYSIS OF SUPREME COURT JUDGEMENT
It was assumed throughout these proceedings that the letters are defamatory of
the complainant. Under the Indian penal Code in order that an offence of
defamation may be committed there must be making or publication of any
imputation concerning any person by words either spoken or intended to be read,
or by signs or by visible representations, intending to harm, or knowing or having
reason to believe that such imputation will harm, the reputation of such person. To
constitute the offence of defamation there must therefore be making or publication
of an imputation concerning any person and the making or publication must be
with intent to harm, or knowing or having reason to believe that such imputation
will harm, the reputation of such person. Unless there is publication there can be
no offence of defamation committed. In England the rule appears to be well
settled that except in certain well defined matters. the husband and wife ,are
regarded as one and in an action for libel disclosure by the husband of the libel to
his wife is not publication. In Wennhak’s case(1) Manisty, J., observed: “ …… the
maxim and principle acted on for centuries is still in existence viz., that as regards
this Case, husband and wife ‘are in point of law one person.” The learned Judge
examined the foundation of the rule and stated that it was, after, all, a question of
public policy or, social policy.
But the rule that husband and wife are one in the eye of law has not been
adopted in its full force under our system of law and certainly not in our criminal
jurisprudence. In Queen Empress v. Butch(2) it was held that there is no
presumption of law that the wife and husband constitute one person in India for
the purpose of the criminal law. If the wife, removing the husband’s property from
his house, does so with dishonest intention, she is guilty of theft. In Abdul Khadar
v. Taib Begum(5) the Madras High Court again held that there is no presumption
of law in India that a wife and husband constitute one person for the purpose of
criminal law, and therefore the English common law doctrine of absolute privilege
cannot prevail in India.
Verghese has complained that he was defamed by the three letters which Ponnan
wrote to Rathi Ponnan, however, says that the letters addressed by him to his
wife are not–except with his consent–admissible in evidence by virtue of s. 122 of
the Indian Evidence Act, and since the only publication pleaded is publication to
his wife and she is prohibited by law from disclosing those letters. no offence of
defamation could be made out. So stated the proposition is in our judgment, not
sustainable. Section 122 of the Indian Evidence Act falls in Ch. IX which deals
with evidence of witnesses in proceeding before the court. That section provides:

“No person who is or has been married shall be compelled to disclose any
communication made to him during marriage by any person to whom he is or has
been married; nor shall be permitted to disclose any such communication. unless
the person who made it, or his representative in interest, consents, except in suits
between married persons, or proceedings in which one married person is
prosecuted for any crime committed against the other.”

Q. Discuss Innuendo with case laws.

Ans: lnnuendo
Where the words are not on the face of them defamatory or where the imputation
is made in an oblique way or by way of question or exclamation or' conjecture or
irony innuendo is necessary. When the words are not prima facie defamatory but
innocent, the pleading of the plaintiff should contain the defamatory statement
which the plaintiff attributes to it. Such a statement given by the plaintiff is called
ah innuendo.

Thus, sometimes the statement may prima facie be innocent but because of
some latent or secondary meaning, it may be considered to be defamatory. When
the natural and ordinary meaning is not defamatory but the plaintiff wants to bring
an action for defamation he must prove the latent or secondary meaning that is
innuendo, which makes the statement defamatory. for example, X published a
statement that, "Mrs. Y had given birth to a child." Here, the statement in its
natural meaning is not defamatory. But it may become defamatory in certain
circumstances that is when Mrs.Y pleads that she was married only two months
ago. These particular or additional circumstances in her pleadings is called
"innuendo'.

When the innuendo is proved by the plaintiff, the words which are not defamatory
in the ordinary sense may become defamatory and the defendant will be liable. A
case worth mentioning on this point is that of Cassidy Verses Daily Mirror. The
defendants

Tolley v Fry & Sons Ltd [1931] AC 333

Defamation; caricature; capable of defamatory meaning
Facts
The defendants were owners a chocolate manufacturing company. They
advertised their products with a caricature of the claimant, who was a prominent
amateur golfer, showing him with the defendants’ chocolate in his pocket while
playing golf. The advertisement compared the excellence of the chocolate to the
excellence of the claimant’s drive. The claimant did not consent to or knew about
the advertisement. The claimant alleged that the advertisement suggested that he
agreed to his portrait being used for commercial purposes and for financial gain.
He further claimed that the use of his image made him look like someone who
prostituted his reputation for advertising purposes and was thus unworthy of his
status. At trial, several golfers gave evidence to the effect that if an amateur sold
himself for advertisement, he no longer maintained his amateur status and might
be asked to resign from his respective club. Furthermore, there was evidence that
the possible adverse effects of the caricature on the claimant’s reputation were
brought to the defendants’ attention. The trial judge found that the caricature
could have a defamatory meaning. The jury then found in favour of the claimant.
The defendants appealed. The Court of Appeal was of the view that the case
should never have gone to the jury. This time the claimant appealed.

Held
The House of Lords held that in the circumstances of this case – as explained by
the facts – the caricature was capable of constituting defamation. In other words,
the publication could have the meaning alleged by the claimant. The Lords also
ordered a new trial limited to the assessment of damages.

Q. Discuss the establishment, procedure of meeting and object of central

and state consumer protection council.
Ans: -Composition of the Central Council According to section 4(2) of the Act,
members of Council are selected from various areas concerning consumer
interest, such as, Ministry of Consumer Affairs, NGOs representing consumer
interest, person involving in agricultural activities and members from Lok Sabha
and Rajya Sabha etc.

Central Council consists following members, namely-

The Minister in-charge of consumer affairs in the Central Government and this
minister shall be the chairman of the Council.

The Deputy minister in- charge of consumer affairs in the central government and
this minister shall be the vice-chairman of Council.

The Secretary in-charge of consumer affairs in the Central Government and shall
be secretary of Council.

The Minister in- charges of consumer affairs in States.

Eight members of Parliament, five from Lok Sabha and three from Rajya Sabha
and others members from various areas concerning the consumer interest.

Term The term of council is three years.

Meetings of the Central Council - According section 5 and rules 4 of the CPA,
Central Council is required to House of Lords d at least one meeting every year
and in addition this, additional meetings may also be organized by the Council as
and when necessary. Time and place of the meeting is decided by the chairman
of the Council. The resolution passed by the council is recommendatory not
mandatory.

State Council- According to section 7, State Government is authorized to set up

State Council, before the amendment, establishment of Council was not
mandatory but now it has become necessary on the part of the State Government
to establish the Council.

Composition of the State Council

State Council consists of following the members, viz.

1) The Minister in- charge of consumer affairs in the State and this Minister shall
be the chairman of the Council.

2) And other official and non-official members representing the interest of the
consumers.

3) Ten members are nominated by the Central Government.

Meetings
Under the Act, State Government is required to House of Lords d at least two
meeting every year and in addition to this, additional meetings may also be
organized as and when necessary. Date and place of the meeting is decided by
the chairman of the Council.

Q. Everyone is under a legal duty to take care towards his neighbor.

Discuss with the help of relevant case law?

Ans: Donoghue, a Scottish dispute, is a famous case in English law which was
instrumental in shaping the law of tort and the doctrine of negligence in particular.

FACTS
On August 26 1928, Mrs Donoghue's friend bought her a ginger-beer from
Wellmeadow Café1 in Paisley. She consumed about half of the bottle, which was
made of dark opaque glass, when the remainder of the contents was poured into
a tumbler. At this point, the decomposed remains of a snail floated out causing
her alleged shock and severe gastro-enteritis.

Mrs Donoghue was not able to claim through breach of warranty of a contract:
she was not party to any contract. Therefore, she issued proceedings against
Stevenson, the manufacture, which snaked its way up to the House of Lords.

ISSUES
The question for the House of Lords was if the manufacturer owed Mrs
Donoghue a duty of care in the absence of contractual relations contrary to
established case law. Donoghue was effectively a test case to determine if she
had a cause of action, not if she was owed compensation for any damages
suffered.

The law of negligence at the time was very narrow and was invoked only if there
was some established contractual relationship. An earlier case, involving two
children and floating mice, held that:

Absent a contract, a manufacturer owed no duty of care to a consumer when

putting a product on the market except:
1. If the manufacturer was aware that the product was dangerous
because of a defect and it was concealed from the consumer (i.e.,
fraud); or
2. The product was danger per se and failed to warn the consumer of
this.
Unlike Mullen, which stopped at the Court of Session, Mrs Donoghue took her
case to the House of Lords .

DECISION/OUTCOME
The House of Lords found for Mrs Donoghue with the leading judgment delivered
by Lord Atkin in a 3-2 majority with Buckmaster L and Tomlin L dissenting. The
ratio decidendi of the case is not straightforward. Indeed, it could be interpreted
as narrow as to establish a duty not to sell opaque bottles of ginger-beer,
containing the decomposed remains of a dead snail, to Scottish widows.
Read more broadly, the decision has several components: first, negligence is
distinct and separate in tort; second, there does not need to be a contractual
relationship for a duty to be established; third, manufacturers owe a duty to the
consumers who they intend to use their product.

However, the primary outcome of Donoghue, and what it is best known for, is the
further development of the neighbour principle by Lord Atkin, who said:

The rule that you are to love your neighbour becomes in law, you must not injure
your neighbour; and the lawyer's question, Who is my neighbour? receives a
restricted reply.

You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who, then, in law is
my neighbour? The answer seems to be - persons who are so closely and directly
affected by my act that I ought reasonably to have them in contemplation as being
so affected when I am directing my mind to the acts or omissions which are called
in question.

Mrs Donoghue had proved her averments that she had a cause of action in law.

ANALYSIS
Donoghue was not the first case to attempt to sever the dependence of
negligence on contract; a few years previously, Lord Ormidale in Mullen, said, '. . .
it would appear to be reasonable and equitable to House of Lords d that, in the
circumstances and apart altogether from contract, there exists a relationship of
duty as between the maker and the consumer of the beer.' Thus, the doctrine is
based in law and morality. The impact of Donoghue on tort law cannot be
understated; it was a watershed moment effectively establishing tort as separate
from contract law.

However, it is important to remember that Donoghue was a milestone in a new

principle which needed refining, as Lord Reid said, '. . . the well knownpassage in
Lord Atkin's speech should, I think, be regarded as a statement of principle. It is
not to be treated as if it were a statutory definition. It will require qualification in
new circumstances.'
The next major development in the 'neighbour principle' came from Hedley Byrne
v Heller which concerned economic loss. However, the locus classicus of the
'neighbour test' is found in another economic loss case called Caparo Industries
v Dickman:

What emerges is that, in addition to the foreseeability of damage, necessary

ingredients in any situation giving rise to a duty of care are that there should exist
between the party owing the duty and the party to whom it is owed a relationship
characterised by the law as one of 'proximity' or 'neighbourhood' and that the
situation should be one in which the court considers it fair, just and reasonable
that the law should impose a duty of a given scope on the one party for the
benefit of the other.13
Thus, boiled down the requirements are: forseeability, proximity, and fairness
(policy considerations). There has been a certain degree of overlap between the
requirements with Lord Hoffman stating that the distinctions between them, '. .
.somewhat porous but they are probably none the worse for that.'

It was argued unsuccessfully in Mitchell and another v Glasgow City

Council15 that because Caparo was concerned with economic loss it had little
application to personal injury claims; Lord Hope said that, "....the origins of the
fair, just and reasonable test show that its utility is not confined to that category."

The outcome of Donoghue has reverberated through law as a wHouse of Lords e.

It essentially birthed a new area of law to the benefit and detriment of some. For
example, personal injury which is steeped in both statutory duty and the
'neighbour principle'. Indeed, it has grown to the point where there are concerns
of an American style 'compensation culture' best expressed by Lord
Hobhouse when he linked it to the restriction of the liberty of individuals: 'the
pursuit of an unrestrained culture of blame and compensation has many evil
consequences and one is certainly the interference with the liberty of the citizen.

Interestingly, the facts were never tested in Donoghue; we will never know if there
was a snail in the bottle.

In Donoghue v Stephenson the House of Lords deemed it necessary to

overcome the problems generated by privity of contract in order to provide an
alternative route of claim for an injured party. It was Mrs Donoghue's friend that
purchased the ginger beer that ultimately caused her injury and therefore only her
friend that had a right to sue under the contract. The House of Lords solved this
problem by imposing liability in negligence on the owner of the café, specifying
that such would be possible where a duty of care could be found to lie between
the owner (the tortfeasors) and the victim (Mrs Donoghue). Lord Atkin outlined the
parameters of the duty of care in this field in the following often-quoted terms:

"You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who, then, in law, is
my neighbour? The answer seems to be persons who are so closely and
directly affected by my act that I ought reasonably to have them in
contemplation as being affected when I am directing my mind to the acts or
omissions which are called in question."

Although the neighbour principle became the guiding light on the issue of the
extent of the duty of care, courts inevitably encountered situations in which it was
necessary to refine and elaborate on its basic thesis. For example, the case of
Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) concerned a negligent
statement (rather than an act or omission) made by a bank.

FACT: Hedley Byrne were a firm of advertising agents. A customer, Easipower

Ltd, put in a large order. Hedley Byrne wanted to check their financial position,
and creditworthiness, and subsequently asked their bank, National Provincial
Bank, to get a report from Easipower’s bank, Heller & Partners Ltd., who replied
in a letter that was headed,
"without responsibility on the part of this bank"

It said that Easipower was,

"considered good for its ordinary business engagements".

The letter was sent for free. Easipower went into liquidation, and Hedley Byrne
lost £17,000 on contracts. Hedley Byrne sued Heller & Partners for negligence,
claiming that the information was given negligently and was misleading. Heller &
Partners argued there was no duty of care owed regarding the statements, and,
in any case, liability was excluded.

Judgment
The court found that the relationship between the parties was "sufficiently
proximate" as to create a duty of care. It was reasonable for them to have known
that the information that they had given would likely have been relied upon for
entering into a contract of some sort. That would give rise, the court said, to a
"special relationship", in which the defendant would have to take sufficient care in
giving advice to avoid negligence liability. However, on the facts, the disclaimer
was found to be sufficient to discharge any duty created by Heller's actions. There
were no orders for damages, because,

“A man cannot be said voluntarily to be undertaking a responsibility if at the very

moment when he is said to be accepting it he declares that in fact he is not.”

In this context the House of Lords held that a plaintiff could establish a duty of
care only if it could be shown that a special relationship subsisted between the
parties. Lord Reid explained that a special relationship could be found:

“Where it is plain that the party seeking the information or advice was
trusting the other to exercise such a degree of care as the circumstances
required, where it was reasonable for him to do that, and where the other
gave the information or advice when he knew or ought to have known that
the enquirer was relying on him.”

Hedley Byrne thus built further law on the edifice of the neighbour principle and
thereafter the law on the duty of care was further advanced in Caparo Industries
plc v Dickman (1990), again by the House of Lords. In Caparo, Lord Devlin
explained the Hedley Byrne ‘special relationship' as being one of close
proximity broadly equivalent to a contractual relationship. Lord Bridge
enunciated the appropriate policy in terms that have become almost as widely
known as Lord Atkin's original statement:

“In addition to foreseeability of damage, necessary ingredients in any situation

giving rise to a duty of care are that there should exist between the party owing
the duty and the party to whom it is owed a relationship characterised by the law
as one of 'proximity' or 'neighbourhood' and that the situation should be one in
which the court considers it fair, just and reasonable that the court should impose
a duty of a given scope upon the one party for the benefit of the other.”
Therefore, in Caparo, the neighbour principle was effectively absorbed into a
wider tripartite test based on foreseeability, proximity and considerations of
fairness and justice. Subsequent decisions, such as McFarlane v Tayside Health
Board (2000), D v East Berkshire Community NHS Trust and others [2003] and
Vowles v Evans and Welsh Rugby Union Ltd (2003) have confirmed that it is
necessary to determine the question of duty of care not only by reference to the
neighbour principle but also by considering the nature of the relationship between
the parties and whether in all the circumstances it is fair, just and reasonable to
impose a duty of care.

Lord Atkin introduced his explanation of the neighbour principle in Donoghue by

stating:

“The rule that you are to love your neighbour becomes in law, you must not injure
your neighbour;”

Q. Define and discuss strict liability with decided cases. Also discuss Indian
position of principle of strict liability.

Ans: There are situations where a person may be liable for some harm even
though he is not negligent in causing the same or there is not intention to cause
the harm. If a person brings on his land and keeps there any dangerous thing i.e
thing that is likely to do mischief, if it escapes, he will be prima facie answerable
for the harm caused by its escape even though he had not been negligent in
keeping it there. The liability arises not because there was any fault or negligence
on the part of the person but because he kept some dangerous thing on his land
which escaped and caused the damage. Since in such case the liability arise
without any negligence on the part of the defendant, it is known as the Rule of
Strict Liability.
Rylands v Fletcher
Issue
The issue in this case was whether planting a tree could be treated as a non-
natural use of the land in the context and therefore bring the case under the
scope of the rule in Rylands v Fletcher.
Held
Based on principle Sic utere tuo ut alienum non laedas- One must enjoy his
property in such a manner as not to injure any other person.
The court held that the defendant was liable for the damage caused to the
claimant due to his planting of the yew tree. Since the tree had poisonous
properties (at least for some animals), this was a non-natural use of the land. It
could not be an ordinary use to plant trees which have the potential to harm the
livestock of one’s neighbours and this can be seen as bringing something
dangerous onto the land. Further, the tree could be said to have “escaped” the
land as its branches reached out onto neighbouring land, even though the tree
itself obviously did not move.
The principle of strict liability evolved in the case of Rylands v Fletcher.

FACTS: Rylands employed contractors to build a reservoir, playing no active role

in its construction. When the contractors discovered a series of old coal shafts
improperly filled with debris, they chose to continue work rather than properly
blocking them up. The result was that on 11 December 1860, shortly after being
filled for the first time, Rylands' reservoir burst and flooded a neighbouring mine,
run by Fletcher, causing £937 worth of damage, equivalent to £102,768 in 2015
terms. Fletcher brought a claim under negligence against Rylands,

Judgement: Judge argued that the claimant had the right to enjoy his land free of
interference from water, and that as a result the defendant was guilty of trespass
and the commissioning of a nuisance. Bramwell's argument was affirmed, both by
the Court of Exchequer Chamber and the House of Lords, leading to the
development of the "Rule in Rylands v Fletcher".

Going by the principle laid in this case, it can be said that if a person brings on his
land and keeps some dangerous thing, and such a thing is likely to cause some
damage if it escapes then such person will be answerable for the damaged
caused. The person from whose property such substance escaped will be held
accountable even when he hasn’t been negligent in keeping the substance in his
premises. The liability is imposed on him not because there is any negligence on
his part, but the substance kept on his premises is hazardous and dangerous.
Based on this judicial pronouncement, the concept of strict liability came into
being. There are some essential conditions which should be fulfilled to categorize
a liability under the head of strict liability.

Crowhurst v Amersham Burial Board [1878] LR 4 Ex D 5

Non-Natural use of land, planting of trees/plants with potentially toxic properties
Facts
The defendant planted a yew tree on their property, however these trees were
planted very close to the claimant’s own property (approximately 4 feet away).
Over time, the trees grew and eventually the branches grew to the point that they
reached over the fence separating the two properties. Due to this, the leaves of
the tree were able to fall on the claimant’s property where the claimant’s horse
was able to eat them. The horse did just that and eventually died from yew
poisoning as yew leaves are toxic to different types of farm animals such as cows
and apparently, horses. The claimant brought an action against the defendant for
damages for the death of his horse. This claim was based on the rule in Rylands
v Fletcher

Essentials of Strict Liability

1) Some dangerous thing must have been brought by a person on his land.
 2) The thing thus brought or kept by a person on his land must escape.
3) It must be non natural use of land.

Dangerous Substances: The defendant will be held strictly liable only if a

“dangerous” substances escapes from his premises.

For the purpose of imposing strict liability, a dangerous substance can be defined
as any substance which will cause some mischief or harm if it escapes. Things
like explosives, toxic gasses, electricity, etc. can be termed as dangerous things.

Strict-Liability-What-To-Know-About-ItEscape: One more essential condition to

make the defendant strictly liable is that the material should escape from the
premises and shouldn’t be within the reach of the defendant after its escape.

For instance, the defendant has some poisonous plant on his property. Leaves
from the plant enter the property of the plaintiff and is eaten by his cattle, who as
a result die. The defendant will be liable for the loss. But on the other hand, if the
cattle belonging to the plaintiff enter the premises of the defendant and eats the
poisonous leaves and die, the defendant would not be liable. In the judicial
pronouncement of Reads v. Lyons & Co.[2] it was held that if there is no escape,
the defendant cannot be held liable.

Non-natural Use: To constitute a strict liability, there should be a non-natural use

of the land. In the case of Rylands v. Fletcher, the water collected in the reservoir
was considered to be a non-natural use of the land. Storage of water for domestic
use is considered to be natural use. But storing water for the purpose of
energizing a mill was considered non-natural by the Court. When the term “non-
natural” is to be considered, it should be kept in mind that there must be some
special use which increases the danger to others. Supply of cooking gas through
the pipeline, electric wiring in a house, etc. is considered to be the natural use of
land. For instance, if the defendant lights up a fire in his fireplace and a spark
escapes and causes a fire, the defendant will not be held liable as it was a natural
use of the land.

These three condition needs to be satisfied simultaneously to constitute a strict

liability.

Exception to the Rule of Strict Liability

There are certain exceptions to the rule of strict liability, which are-

Plaintiff’s Fault: If the plaintiff is at fault and any damage is caused, the
defendant wouldn’t be held liable, as the plaintiff himself came in contact with the
dangerous thing.

In the judicial pronouncement of Ponting v Noakes, the plaintiff’s horse died after
it entered the property of the defendant and ate some poisonous leaves. The
Court held that it was a wrongful intrusion, and the defendant was not to be held
strictly liable for such loss.
In T.C. Balkrishna Menon Verses T.R. Subramanian, the court held that the use
of explosives in an open field on the occasion of festival is a "non-natural" use of
land. If a person stores or marks explosive substances in an open field even on
the occasion of celebration of some festival, that would amount ,to non-natural
use of land and the rule of Rylands Verses Fletcher would apply in such cases.

The retention of water by a person in a portion of his land to prevent its passing
on to the other portions of his land is not an act done in the natural and usual
course of employment and the person so doing is liable, for danger caused
thereby. In State of Punjab Verses Modern Cultivators, damage was caused by
overflow of water from a canal, the Apex Court held that use of land for
construction of a canal system is a normal use and not a non-natural use.
Recently the Karnataka High Court also considered non-natural use of land
inMukesh Textile Mills Verses Subramanyam Sastry, here the defendant was
the owner of a sugar factory. Adjacent to the sugar factory the plaintiff owned
large land. The defendant stored large quantities of molasses which escaped to
the neighbour's land and caused extensive damage to his crop. It was held that it
was non-natural use of land and if a person collected such things on his land and
escaped to neighbours' land, he had a liability.

Defendant's responsibility, The rule only applies to a person who "collects and
keeps" the object on his land. Thus if the object is on the land and it escapes not
by his efforts but in the "ordinary course of nature" he will not be responsible for it,
under Rylands Verses Fletcher.

When a person constructs a dam on his land which has effect of diverting the
water from its natural channel on the land of a neighbour and thereby he causes
damage to it, he is liable to his neighbour. "An owner of property has no right to
let off water which has naturally accumulated therein even for purpose of its
preservation from damage therefrom if this will have the effect of transferring his
misfortune to the property of another."

Exceptions to Strict Liability:

Act of God: The phrase “act of God” can be defined as an event which is beyond
the control of any human agency. Circumstances which no human foresight can
provide against and of which human prudence is not bound to recognize the
possibility. Such acts happen exclusively due to natural reasons and cannot be
prevented even while exercising caution and foresight. The defendant wouldn’t be
liable for the loss if the dangerous substance escaped because of some
unforeseen and natural event which couldn’t have been controlled in any manner.

e.g In Nicholus of Lords s vs Marsland case the creation of artificial lake was due
to extra ordinary rainfall which lead to damage to embankments. Water washed
away the four bridges of plaintiff. There was found to be no negligence on the part
of defendant. It was held that defendant are not liable as this accident has been
caused by Act of god.

Act of the Third Party: The rule also doesn’t apply when the damage is caused
due to the act of a third party. The third party means that the person is neither the
servant of the defendant, nor the defendant has any contract with them or control
over their work. But where the acts of the third party can be foreseen, the
defendant must take due care. Otherwise, he will be held responsible.

For instance, in the case of Box v Jubb, where the reservoir of the defendant
overflowed because a third party emptied his drain through the defendant’s
reservoir, the Court held that the defendant wouldn’t be liable.

Consent of the Plaintiff: This exception follows the principle of violenti non fit
injuria.

For instance, if A and B are neighbors, and they share the same water source
which is situated on the land of A, and if the water escapes and causes damage
to B, he can’t claim damages, as A wouldn’t be liable for the damage.

An Act done under Statutory Authority: An act done under the authority of a
statue is a defence to an action for tort.

Green Vs Chelsea waterworks(1894)

The defendant company had a statutory duty to maintain continuous supply of
water. A main belonging to company burst without any negligence on its part, as a
consequence of which the plaintiff’s premises were flooded with water. It was held
that the company was not liable as the company was engaged in peoforming a
statutory duty.

The rule of absolute liability, in simple words, can be defined as the rule of strict
liability minus the exceptions. In India, the rule of absolute liability evolved in the
case of MC Mehta v Union of India.This is one of the most landmark judgment
which relates to the concept of absolute liability.

The facts of the case are that some oleum gas leaked in a particular area in Delhi
from industry. Due to the leakage, many people were affected. The Apex Court
then evolved the rule of absolute liability on the rule of strict liability and stated
that the defendant would be liable for the damage caused without considering the
exceptions to the strict liability rule.

According to the rule of absolute liability, if any person is engaged in an inherently

dangerous or hazardous activity, and if any harm is caused to any person due to
any accident which occurred during carrying out such inherently dangerous and
hazardous activity, then the person who is carrying out such activity will be held
absolutely liable. The exception to the strict liability rule also wouldn’t be
considered.

The rule laid down in the case of MC Mehta v UOI was also followed by the
Supreme Court while deciding the case of Bhopal Gas Tragedy case. To ensure
that victims of such accidents get quick relief through insurance, the Indian
Legislature passed the Public Liability Insurance Act in the year 1991.
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
What do you mean by vicarious liability? Explain with decided cases.

Answer. 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 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,
(a) Liability by ratification, Where the defendant has authorised or ratified the
particular wrongful act or omission.

(b) Liability arising out of special relationship, Where the defendant stands to
the wrong-doer 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
In order that the master may be held liable for the tort of his servant following
conditions should be fulfilled,
(1) Tort is committed by the 'servant', and
(2) The servant committed the tort while acting in the course of
employment of his master.
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.

Difference between Servant and Independent Contractor

(1) A servant is an agent who works under the supervision and direction of his
employer. Whare as An independent contractor is one who is his own master.

(2) A servant is a person employed to obey his master's directions from time to
time. Whare as An independent contractor is a person engaged to do certain
works, but to exercise his own discretion as to the mode and time of doing it!

(3) A servant is bound by the orders of his master but an independent contractor
is bound by the terms of his contract.

Course of employment, A servant is said to be acting in the course of

employment if,

(1) the wrongful act has been authorised by the master, or

(2) the mode in which the authorised act has been done is wrongful or
unauthorised. It is the general rule that master will be liable not merely for what
he has authorised his servant to do but also for the way in which he does that
which he has authorised to do.
An employee in case of necessity is also considered as acting in the course of
employment, if he is performing his employer's business. 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,

The trend of the recent decisions of various High Courts is to allow compensation
to the accident victim against the owner of the vehicle and through him, the
insurance company. The aspect of the relationship of the independent contractor
and employer between the mechanic or the workshop and the owner of the
vehicle has been generally ignored, such liability has been recognised on the
basis of the law of agency by considering the owners of the workshop or the
mechanic as an agent of the owner of vehicle.

The recent trend in law to make the master liable for acts which do not strictly fall
within the term 'in course of employment' as ordinarily understood. The owner is
not only liable for the negligence of the driver if that driver is his servant acting in
the course of the employment but also when the driver is with the owner's
consent, driving, the car on the owner's business or for the owner's purposes.
Thus, although the particular act which gives the cause of action may not be
authorised, yet, if the act is done in the course of employment which is
authorised, the master is liable. In other words, "to hold master liable for the
wrongful act of a servant it must be committed in the course of master's business
so as to form part of it, and not merely, coincident in time with it," but if the torts
are committed in any manner beyond the scope of employment the master is
liable only if he was expressly authorised or subsequently ratified them.
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. 'twas 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.

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

authority. Here two things have to be established.
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. 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.

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.

Q. Discuss the circumstances with the help of decided cases in which torts
are not actionable.

Ans: Volenti non fit injuria- Volenti non fit injuria is a defence of limited application
in tort law. A direct translation of the latin phrase volenti non fit injuria is, 'to one
who volunteers, no harm is done'. Where the defence of volenti applies it
operates as a complete defence absolving the Defendant of all liability. It is often
stated that the Claimant consents to the the risk of harm, however, the defence of
volenti is much more limited in its application and should not be confused with the
defence of consent in relation to trespass. The defence of volenti non fit injuria
requires a freely entered and voluntary agreement by the Claimant, in full
knowledge of the circumstances, to absolve the Defendant of all legal
consequences of their actions. There is a considerable overlap with contributory
negligence and since the introduction of the Law Reform (Contributory
Negligence) Act 1945, the courts have been less willing to make a finding of
volenti preferring to apportion loss between the parties rather than taking an all or
nothing approach.

The requirements of the defence are thus:

1. voluntary- The agreement must be voluntary and freely entered for the
defence of volenti non fit injuria to succeed. If the Claimant is not in a position
to exercise free choice, the defence will not succeed. This element is most
commonly seen in relation to employment relationships, rescuers and suicide.

Hall v Brooklands Auto Racing Club [1933] 1 KB 205

Certain persons were the owners of a racing track for motor cars. The track was
oval in shape and measured two miles or more in circumference. It contained a
long straight stretch known as the finishing straight, which was over 100 feet wide
and was bounded on its outer side by a cement kerb 6 inches in height, beyond
which was a strip of grass 4 feet 5 inches in width enclosed within an iron railing 4
feet 6 inches high. Spectators were admitted on payment to view the races, and
stands were provided in which they could do this in safety, but many persons
preferred to stand along and outside the railing. Among the competing cars in a
long distance race on this track two cars were running along the finishing straight
at a pace of over 100 miles an hour and were approaching a sharp bend to the
left; the car in front and more to the left turned to the right; the other car did the
same, but in so doing touched the off side of the first mentioned car, with the
strange result that the first mentioned car shot into the air over the kerb and the
grass margin and into the railing, killing two spectators and injuring others. The
course was opened in 1907. No accident like this had ever happened before.

In an action by one of the injured spectators against the owners of the racing
track the jury found that the defendants were negligent in that having invited the
public to witness a highly dangerous sport they had failed by notices or otherwise
to give warning of, or protection from, the dangers incident thereto, and to keep
spectators at a safe distance from the track. Judgment having been given for the
plaintiff on these findings: -

Held, that it was the duty of the appellant s to see that the course was as free
from danger as reasonable care and skill could make it, but that they were not
insurers against accidents which no reasonable diligence could foresee or against
dangers inherent in a sport which any reasonable spectator can foresee and of
which he takes the risk, and consequently that there was no, evidence to support
the verdict of the jury.

2. Agreement- The second requirement for the defence of volenti non fit injuria is
agreement. The agreement may be express or implied. An example of an express
agreement would be where there exists a contractual term or notice. However,
this would be subject to the controls of s.2 of the Unfair Contract Terms Act 1977.
An implied agreement may exist where the Claimant's action in the circumstances
demonstrates a willingness to accept not only the physical risks but also the legal
risks.
Nettleship v Weston [1971] 3 WLR 370
The defendant was a learner driver. She was taking lessons from a friend. The
friend checked that the defendant's insurance covered her for passengers before
agreeing to go out with her. On one of the lessons Mrs Weston turned a bend, Mr
Nettleship told her to straighten the wheel but Mrs Weston panicked and failed to
straighten the wheel. She approached the pavement and Mr Nettleship grabbed
the handbrake and tried to straighten the wheel but it was too late. She mounted
the pavement and hit a lamp post. Mr Nettleship fractured his knee. The
defendant argued that the standard of care should be lowered for learner drivers
and she also raised the defence of volenti non fit injuria in that in agreeing to get
in the car knowing she was a learner, he had voluntarily accepted the risk.

Judgement: A learner driver is expected to meet the same standard as a

reasonable qualified competent driver. Volenti did not apply as he had checked
the insurance cover which demonstrated he did not waive any rights to
compensation. His damages were reduced by 50% under the Law Reform
(Contributory Negligence) Act 1945 to reflect the degree to which he was also at
fault.

3. Made in full knowledge of the nature and extent of the risk.

Wooldridge v Sumner

Facts-The claimant was a photographer working at a horse show. He was

situated within the ring where the horse show took place (rather than behind the
spectator barriers) when one of the horses galloped towards him at a significant
speed after the rider lost control of it, knocking him down. The claimant sued the
defendant in the tort of negligence.

Issue- If negligence is established, a defendant may still avoid liability by raising

the defence of volenti non fit injuria. This defence applies to cases where the
claimant consents to the risk of injury, and prevents the claimant from succeeding
if that risk manifests by negating the duty of care.

The issue was whether the defence applied in this case, given that the claimant
was within the ring rather than behind the protective barriers.

Held- The High Court held the defendant not liable. The High Court held that for
the defence of volenti non fit injuria to apply, it was not enough that the claimant
consented to a generic risk of injury. Rather, the claimant had to consent to the
lack of reasonable care which produced the risk. This requires the claimant to
have complete knowledge and understanding of the extent and nature of the risk.

In the case sporting events, however, spectators can be taken to know of and
consent to the risk of the sportsman making errors of judgement or skill, given the
fast-paced nature of the activity, unless the sportsman was acting with deliberate
or reckless disregard for the spectator’s safety.

In this case, the sportsman merely made an error of judgement, and the claimant
had chosen to position himself close enough to risk such errors affecting h
Padmavati V. Dugganaika -

Fact- While driver was taking petrol at petrol pump, two strangers took lift in a
jeep. Suddenly front wheel failed and Jeep become uncontrolled ,both the
strangers thrown away, one of them instantly died. and another was injured.

Held - Here plaintiff was not held liable because, strangers voluntarily took lift.

ANSWER IN ONE/TWO SENTENCES

1) What do you mean by ‘Felonious Torts’?

A: Felonious Torts- When an Act amounts to both a tort and a crime (felony), it is
called felonious tort. For example, assault, defamation, malicious prosecution etc.
In England, prior to 1967, the doctrine of merger of tort is felony was applied. So,
a suit under the law of torts could be filed, unless the person first prosecuted in a
criminal Court. In 1967, however, this rule was abolished in England. In India, the
rule of merger of tort in felony had never been accepted. So a person can always
be sued for a tort, although the Act also amounts to a crime, without first
instituting criminal proceedings against him.

2) What is wavier of tort?

A: There are some cases in which a party is allowed to treat that which is purely a
tort, as having a contract between himself and the wrong doer, and is allowed to
waive his right to sue in tort, and instead, pursue his remedy for breach of the
supposed contract. Thus, if a man is wrongfully deprived of his goods, which are
afterwards sold away, he may bring an action for damages in tort, or he may file a
suit for the price received by the defendant. Such cases, are however, not many,
and when a man selects one remedy and waives the other, he is deemed to have
made an election, and he cannot afterwards pursue the remedy waived by him. It
is also to be noted that the waiver may be either express or implied.

3) What are the two kinds of torts?

A: Kinds of Torts- There are two kinds of torts- (i) Torts which are actionable per
se, (i.e. without proof of actual damage)– In the case of tort which are actionable
per se, the defendant is liable merely because he does a particular Act, even
though the plaintiff has not suffered the slightest harm. The Act of trespassing on
another’s land is actionable, even though the plaintiff does not suffer the slightest
harm and no actual damage is done to the law. So too, trespass to the person,
even though it is only a technical assault which causes no damage, gives rise to
right of action. Similarly libel is actionable per se. in these cases, the law
conclusively presumes damage. (ii) Torts which are actionable only on proof of
actual damage - However, in the case of tort which are actionable only on proof of
actual damage, resulting thereform, the defendant will be held liable only if, in
consequence of his Act, damage is inflicted on the plaintiff. Thus, the tort of
slander is, in most cases, not actionable without proof of special damage.

4) Explain the maxim “Ex trupi causea non oritus action”?

A: The maxim “Ex trupi causea non oritus action”, means that no Act arises from
an immoral or base cause. That is to say, if the damage is in a manner tainted
with immorality, no cause of action can be maintained. For example, in Hegarty V.
Shine (1878) P was infected by D, her paramour, with venereal disease, the
existence of which was concealed by D. It was held that P was not entitled to sue
D because an action does not arise from an immoral cause.

5) When a master is not liable for the torts of his servant?

A: A master is not liable for the torts of his servant in the following three cases- (i)
When he has temporarily lent his servant to another person. (ii) When he is
obliged by law to employ a particular person. (iii) When the relation between the
parties is that of a head of a Government department and an employee in that
department.

6) What is the place of motive in determining the tortuous liability?

A: Relevancy of motive in torts - As a rule, motive by itself, is irrelevant in the Law
of Torts. An Act which is lawful cannot become unlawful merely because to is
done with an evil motive. It is the act, and not the motive for the Act, that is
relevant. If the Act, apart from the motive, gives rise merely to damage without
legal injury, the motive, however, reprehensible it may be, will not supply the
missing element. The best illustrative case on this point is Mayor of Bradford
Corporation v. Pickles, (1895).
On the other hand, a good motive will not excuse a person from liability, where
the Act is prima facie a legal injury. The Case of Tithes’ Imperiled well illustrates
this principle. However, the cases in which a bad motive may be relevant in law of
trots are: (a) Malicious prosecution, (b) defamation, (c) conspiracy, and (e)
nuisance.

7) Explain the relevancy of intention in tort?

A: Relevancy of ‘intention’ in tort - It is no defense to an action is tort for the
wrong-doer to plead that he did not “intend” to cause damage, if damage has
resulted owning to an Act or omission on his part which is directly the effect of his
violation. Every man is presumed to intend the natural and ordinary
consequences of his acts, and this presumption is not rebutted by proof that he
did not think of the consequence, or that he hoped or expected that they would
not follow. The defendant will be liable for the natural and necessary (not remote)
consequence of his Act, whether he, in fact contemplated them or not. Baloon
and Gray Hair case are illustrative of the principle.

8) What do you mean be malfeasance?

A: Meaning of Malfeasance - Malfeasance is the commission of an unlawful Act. It
is generally applicable to those unlawful acts which are actionable per se and do
not require proof of negligence or malice. For example, trespass is malfeasance,
and it is actionable per se.
9) What is Public Interest Litigation?
A: Meaning of PIL - Public Interest Litigation is a new technique to assist the poor
to approach the courts and authorities for redressing their grievance. Any person
or association may file such a petition before the concerned Court. Such person
or association need not be an interested person. The consumers can attain their
valuable rights through such litigation in concession of Court fee and other legal
formalities of the courts. But, however, the Maharashtra State Commission is of
the view that in view of the nature of the complaint being in the public interest, the
individual person is not competent to agitate against the Municipal Corporation, if
such an attempt is encouraged by the commission, there will be a flood of
complaints which is likely to put unnecessary strain on the working of this
commission having limited funds and staff.

10) What is misfeasance?

A: Meaning of Misfeasance - Misfeasance is the improper performance of some
lawful Act. Even if a person has undertaken to do something gratuitously, if he
commits a misfeasance, he is liable.

11) What is non-feasance?

A: Meaning of Non-feasance - It means the failure or omission to perform an
obligatory Act. Non-feasance of a gratuitous undertaking does not impose liability.
But where there is an obligatory duty, and the failure or omission to do such duty
cases injury to a person, it gives rise to a cause of action in favor of such
individual towards whom the duty exists. In this respect, misfeasance and non-
feasance give rise to a cause of action to some extent.

12) What do you mean by malicious prosecution?

A: If a person lodges knowingly false information with police naming plaintiff as
accused and support same by his false evidence before police as also in court,
he will be held to be prosecuted, Malicious prosecution.

13) What is tort of Nuisance?

A: The unlawful interference with a person’s use of enjoyment of land of some
right over or in connection with it is a tort of Nuisance.

14) What is tort of Conversions?

A: A wrong to one’s ownership of goods which involves misuse and appropriation
of goods is Conversions.

15) What does Actio Personalis Morituer Cum Persona means?

A: A personal right of action lies with the person.

16) Explain Accord and satisfaction as used in Law of Torts.

A: Accord means a mutual agreement to pay money of do something as
compensation and Satisfaction is actual payment of that sum or doing of the thing
agreed to be done.

17) What is Pollock’s statement on ‘Act of God’?

A: ‘Act of God’ is an operation of natural forces so unexpected that no human
foresight or skill could reasonably be expected to anticipate it.

18) Head Constable runs away with the deposit at Malkahana. Will the owner of
get his deposit back? Refer to decided case.
A: The answer to this question is based on the fact and principles of law laid down
in Kasturi Lal v. State of U.P. (1956). In this case the police officers of the State of
U.P., acting in the exercise of their statutory powers, sized gold from the
appellant, and as a result of their negligence on dealing with its safe custody, the
gold was not returned to him. In a suit filed by him against the State for the return
of the gold, or its value, it was held by Supreme Court that the Act was committed
by the employees of the State during the course of employment, and the
employment in question being of the category which could claim the special
characteristics of sovereign power, the appellant’s claim could not succeed.

19) How far “Doctrine of Common Employment” is a defense for master’s liability
to servant?
A: The Doctrine of Common Employment – Prior to 1948, a master was not liable
for negligent harm to his servant by another servant engaged in common
employment with him. In order to successfully plead this defense, the master has
to show:
(a) That the servant who is injured as well as the servant causing such injury were
in the service of the same employer.
(b) The injured servant was engaged in a common employment in the sense that
the safety of one servant would, in the ordinary and natural course of things,
depend on the care and skill of the other servants. However, after 1948, this
defense of common employment has been taken away by the ‘Law Reform
(Personal Injuries) Acts, 1948. Under this Act, it is no defense to an employer to
contend that he is not liable because the injury was caused by the negligence of a
fellow-employee. Any contract between the master and servant, which excludes
the master’s liability on the ground of common employment, is also declared to be
void.

20) Define the term ‘Spurious goods and Services’ under Consumer Protection
Act?
A: Such goods and services which are claimed to be genuine but they are not
actually so.

21) Define the term ‘Class Action’ under Consumer Protection Act?
A: One or more consumers where there are numerous consumer having the
same interest.

22) Object of Consumer Protection Act, 1986?

A: To provide for better protection of the interest of consumers and for that
purpose to make provisions for establishment of consumer councils and other
authorities for settlement of consumer disputes and for matters connected within.

23) Who are joint tort-feasors?

A. When several people join in committing a tort the persons who commit such
tort are known as joint tort- freasors.

24) What is Salmond’s statement on Civil Tort?

A: “Tort is a civil wrong for which the remedy is a common law action or
unliquidated damage and which is not exclusively the breach of contract or the
breach of a trust or other merely equitable obligation”.

25) Can a legal heir or a representative of a deceased consumer life a complaint

under the Consumer Protection Act, 1986.
A. Yes, as provided under S.2 (1) (b) (v) of the Consumer Protection Act, 1986, in
event of death of a consumer his legal heir or representative can file a case.
26) What is a consumer dispute under the Consumer Protection Act?
A. Section 2 (1) (e) “Consumer dispute’’ means a dispute where the person
against whom a complaint has been made, denies or disputes the allegations
contained in the complaint.

27) Can there be defamation of a deceased person?

A: Defamation of a deceased person - No. The law of torts makes a distinction
between dead and living person with regard to defamation. To defame a living
person is a tort while it is not a tort to defame the dead. But a criminal prosecution
can lie for defaming g the dead if it would have amounted to defamation if the
deceased were, alive and if it is capable of hurting the feelings of his living
relatives.

28) Write a short note on JOINT TORT FEASORS.

A. When several persons join in committing a tort they become joint tort feasors.
All persons who (in the eye of law) are responsible for the same tort are to be
dealt as joint wrong-doers. All persons who aid or advice or direct or jointly join in
the commission of a wrongful Act, are joint tort feasors. In the words of Prof.
Winfield persons are said to be joint tort feasors when their respective shares in
the commission of the tort are done in furtherance of a common design.

Q. Concept of Liability without Fault” in motor insurance? How Motor Vehicle Act
deals with without fault liability?

Ans: • Sec 140 speaks about liability to pay compensation in case of death or
permanent disability.

• Sec 141 speaks about other right to claim compensation.

• Sec 142 defines permanent disability.

• Sec 143 states about the applicability of chapter X to Workmen’s Compensation

Act.

• Sec 144 speaks about overriding effect.

Sec 140 of Motor Vehicles Act, 1988 deals with the liability without fault. The
claimant involved in a motor vehicle accident is not required to prove wrongful
act, neglect, or default on the part of the owner of the vehicle or by any other
person.

The claim under these provisions is neither defeated or affected in any way, by
any wrongful act, neglect or default on the part of the claimant; nor can be of the
claimant’s share of responsibility for the accident. In other words, the legal
defense of ‘contributory negligence’ is not available to the motorist and his
insurer.

These provisions apply in cases where the claimant suffers death or permanent
disablement, as defined in the Act. The amounts of compensation are fixed as
follows:
  Death, Rs, 50,000

 Permanent Disablement Rs. 25,000

The object behind no-fault principle is to give minimum statutory relief

expeditiously to the victim of the road accident or his legal representative. To
that extent, these provisions constitute a measure of social justice.

Where no-fault liability is concerned, there is clearly a departure from the usual
common law principle that a claimant should establish negligence on the part of
the owner or driver of the motor vehicle before claiming any compensation for
death or permanent disablement arising out of a motor vehicle accident.

The right to claim compensation U/S 140 in respect of death of permanent

disablement of any person shall be in addition to any other right to claim
compensation in respect thereof under any other provision of this Act or of any
other law for the time being in force.

Thus the claims for death or permanent disablement can also b e pursued under
other provisions of the Act on the basis of negligence. The motorist i.e. the
owner of the vehicle or driver of the vehicle is liable to pay compensation on the
basis of ‘no fault’ as well as on the basis of ‘fault’ or negligence he has to pay first
the compensation on ‘no fault’ basis i.e. Rs. 550,000 or Rs. 25,000 as the case
may be, for death or permanent disablement.

If such compensation paid is less than the compensation awarded on the

principle of ‘fault’ or negligence, the motorist is liable to pay the balance. For
example, if Rs. 30,000/- is awarded for permanent disablement on the basis of
negligence, the claimant is entitled to receive only Rs. 5,000 being the excess
over the no-fault compensation settled first. In any claim for compensation under
this Section, the claimant shall NOT be required to plead or establish that the
death or permanent disablement in respect of which the claim has been made,
was due to any wrongful act or neglect or default of the owner/s of the vehicle/s
concerned or any other person.

Sec. 143 of the Act will also apply in relation to any claim for compensation in
respect of death or permanent disablement of any person under the Workmen’s
Compensation Act, 1923, resulting from a motor accident. Time limit for
depositing compensation under this section is one month.

In Satvantkumar Harjit Singh Vig v. Aarti Jayant Lalwani case it was held by
the Double Bench of the Mumbai High Court that the phrase ‘has resulted from’
occurring in section 140 of the Motor Vehicles Act, 1988 does not require the
death to have occurred in the accident itself. The section 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.

In New India Assurance Co. Ltd v. Mehebubanbibi 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 attract for a claim of double compensation under two different
laws, irrespective of whether the claim is based on fault liability or on no fault
liability.