Q. Define Tort and Law of Tort. Discuss its nature. What are its various ingredients?

What conditions must be Distinction between Tort and Breach of Contract

satisfied before a liability in Tort arises? "A tort is a civil injury but all civil injuries are not Torts". Explain.
Tort Breach of Contract
Distinguish between Tort and Crime. How many kinds of Torts are there?
The word tort has been derived from the latin word "tortum" which means to twist. In general, it means Tort occurs when the right available to all the persons in
conduct that adversely affects the legal right of others and is thus, "wrong". For a healthy society it is necessary that it A breach of contract occurs due to a breach of a duty
general (right in rem) is violated without the existence of
be free of anti-social elements and that an individual should have freedom to exercise his rights without being (right in persona) agreed upon by the parties themselves.
any contract.
restricted by others. Further, if there is a transgression of any right, there must be a way to compensate or to restore
the right. This is essentially what the maxim, "Ubi just ibi remedium" implies. Where ever there is a right, there is a Victim is compensated for unliquidated damages as per the
Victim is compensated as per the terms of the contract
remedy. Indeed, a right has no value if there is no way to enforce it. Such rights of individuals primarily originate from judgment of the judges. Thus, damages are always
and damages are usually liquidated.
two sources - contractual obligations and inherent rights that are available to all the citizens against every other citizen, unliquidated.
aka rights in rem.
Duty is fixed by the law of the land and is towards all the Duty towards each other is affixed by the contract agreed
The following are some definitions from the experts – Salmond - A tort is a civil wrong for which the remedy is
persons. to by the parties.
action in common law for unliquidated damages and which is not exclusively a breach of contract or breach of trust or
other equitable obligation. Winfield - Tortious liability arises from the breach of duty primarily affixed by law. The Doctrine of privity of contract does not apply because there
duty is towards persons in general and its breach is redressable by an action for unliquidated damages. Only the parties within the privity of contract can initiate
is no contract between the parties. This was held in the
Thus, it can be seen that tort is an act while the law of tort is the branch of law that provides relief to the person who the suit.
case of Donaghue vs Stevenson 1932.
has been injured due to a tortious act. From the above definitions, it is clear that the nature of a tort is that it is a civil
wrong. However, not all civil wrongs are torts. For example, breach of contract and breach or trust are civil wrongs but When a contract is void, there is no question of
are not torts because their remedies exist in the contract itself. To determine if a particular act is a tort or not, we must Tort applies even in cases where a contract is void. For compensation. For example, a contract with a minor is
first make sure that it is a civil wrong. We should then make sure that it is NOT a breach of contract or breach of trust. example, a minor may be liable in Tort. void ab initio and so a minor cannot be held liable for
Historically, crime and tort originated from the same root. Later on, they separated on the account that a anything.
crime does not only affect the victim but also to the society as a whole to a great extent. Thus, the branch of law that Justice is met by compensating the victim for his injury
deals with criminal conduct evolved a lot faster than the branch of law that deals with torts. and exemplary damages may also be awarded to the
Ingredients of Tort (Conditions That Must Be Satisfied Before A Liability In Tort Arises.) Justice is met only by compensating the victim for actual
victim. In Bhim Singh vs State of J K AIR 1986 - the
There are three essential elements for an act to be liable under Tort. loss.
plaintiff was awarded exemplary damages for violation of
1. Wrongful act or omission - There must be some act or omission of a duty on the part of the defendant. For a tort to his rights given by art 21.
happen, the person must have first either done something that he was not expected to do or omitted to do something
that he was supposed to do. DISTINCTION BETWEEN TORT AND CRIME
Municipal Corp of Delhi vs Subhagvanti AIR 1966 - A clock tower was not in good repairs. It fell and killed Tort Crime
several people. MCD was held liable for its omission.
2. Duty imposed by law - The act or omission of an action must be required by law or the duty must be imposed by Tort occurs when the right available to all the persons in Tort occurs when the right available to all the persons in
law. This means that if an act that is prohibited by law causes harm, it is liable under tort. Similarly, if the omission of general (right in rem) is violated without the existence of general (right in rem) is violated and it also seriously
an act that is required by law, causes harm, then it is liable under tort. Donaghue vs Stevenson - Held that the any contract. affects the society.
manufacturer of a drink has a legal duty towards the consumers to ensure that noxious substances are not included in
Act is comparatively less serious and affects only the Act is comparatively more serious and affects the person
the drink.
person. as well as the society.
3. Injury - The act or the omission must result in legal damage or injury i.e. violation of a legal right vested in the
plaintiff. This means that the act or omission must cause a damage that is recognized by law as wrongful. Intention is the most important element in establishing
Bhim Singh vs State of J K - Plaintiff was an MLA and was wrongfully arrested while going to assembly session. It Intention is usually irrelevant. criminal liability. A crime cannot happen without Mens
was held that this was the violation of his fundamental rights. Even though he was release later, he was awarded Rea.
50,000RS as exemplary damages by SC.
4. Legal Remedy - Historically, a person whose legal right was violated was allowed to sue only upon permission It is a private wrong. It is a public wrong.
from the King. There were only certain predefined torts for which the king's permission could be obtained.
Since it is a private wrong the wronged individual must
KINDS OF TORTS Since it is a public wrong, the suit is filed by the govt.
file a suit himself for damages.
As mentioned before there can be innumerable type of acts that violate the legal right of others. The law of tort is
therefore ever evolving. New ways in which the rights are violated come to light every day. However, they can be The suit is for damages. The suit is for punishment.
classified on the basis of way of incurrment of liability into the following three categories -
1. Intentional - Wrongful acts that are done intentionally, irrespective of with or without malice, belong to this Compromise is possible between the parties. For
There is no compromise for the punishment. For example,
category. 2. Negligent Conduct - Wrongful acts that are done without any intention but because of not taking proper example, a person who has been defamed, can
if a person is guilty of murder, he cannot pay money and
care that is required by law fall into this category. 3. Strict Liability - Acts that are neither done intentionally nor do compromise with the defamer for a certain sum of
reduce his sentence.
involve any negligence, but still cause an injury to other are liable under the concept of strict liability as propounded in money.
Rylands vs Fletcher. In strict liability cases, the defendant is liable even if it acted reasonably. There are 3 types of Compounding is possible. Compounding is generally not possible.
strict liability cases:
1- Keeping wild animals 2- Dangerous, legal activities such as blasting roads 3- The manufacture of products Justice is met by compensating the victim for his injury Justice is met by punishing the aggressor by prison or fine.
(products liability) and exemplary damages may also be awarded to the In some specific cases as given in IPC compensation may
Torts can also be classified according to the type of damage - victim. be given to the victim.
1. Physical Torts - Causing physical hurt to body such as assault, battery. It can happen with intention or even with
negligence. 2. Abstract Torts - Causing damage to mind or reputation such as defamation. 3.Tort involving Several criminal acts such as assault and battery are also
Tortious acts are usually not criminal acts.
property - For example, Trespass to land. 4. Tort involving legal right - For example, false imprisonment. grounds for tortious suit.
5. Nuisance - Causing unreasonable restriction towards exercise of one's legal right.
Q. Describe general exceptions regarding Torts that are not actionable / General filled in the reservoir, the water flooded the mine through the shafts. The plaintiff sued the defendant. The defendant
pleaded that there was no intention and since he did not know about the shafts, he was not negligent even though the
Defences for Torts. contractors were. Even so, he was held liable. J Blackburn observed that when a person, for his own purposes, brings
Even when a plaintiff provides proof for the existance of all the essential elements of a tort, it is possible in some cases
to his property anything that is likely to cause a mischief if it escapes, must keep it at his peril and if it escapes and
for the defendant to take certain defences which can remove his liability, These defences are nothing but specific
causes damage, he must be held liable. He can take the defence that the thing escaped due to an act of the plaintiff or
situations or circumstances in which a defendant is given a waiver for his tortious action. These are as follows -
due to vis major (act of God) but since nothing of that sort happened here, then it is unnecessary to inquire what
1. Volenti Non fit Injuria: When a person consents for infliction of an harm upon himself, he has no remedy for that
excuse would be sufficient.
in Tort. That means, if a person has consented to do something or has given permission to another to do certain thing,
To this rule promulgated by J Blackburn, another requirement was added by the Court of Exchequer Chamber, that the
and if he is injured because of that, he cannot claim damages. In Laxmi Rajan vs Malar Hospital 1998, a woman
use must be a non-natural use of land as was the case in Ryland vs Fletcher itself. For example, growing of regular
consented for a surgery to remove a lump from her breast. But the hospital removed her uterus as well without any
trees is a natural use but growing poisonous trees is not. Keeping dogs as pet is a natural use but keeping wild beasts is
genuine reason. It was held that removing of her uterus exceed beyond what she had consented for. Also, the consent
not. Thus, the conditions when this rule will apply are -
must be free. It must not be because of any compulsion
1. The thing kept must be dangerous - The thing kept on the land must be as such as is likely to cause mischief if it
Exceptions - In the following conditions, this defence cannot be taken even if the plaintiff has consented -
escapes. For example, storing gas or explosives or wild beasts are all likely to cause damage if they escape.
a) Rescue Conditions - When the plaintiff suffers injury while saving someone
2. The thing must escape - If the thing is within the boundary of the defendant's land, he is not liable. The thing must
b) Unfair Contract Terms - Where the terms of a contract are unfair, the defendant cannot take this defence.
escape out of his land for him to be liable. In Crowhurst vs Amersham Burial Board 1878, branches of a poisonous
2. Plaintiff the wrongdoer: A person cannot take advantage of his own wrong. This principle has been in use since a
tree were hanging outside the land of the defendant. Plaintiff's cattle ate them and died. Defendant was held liable
long time as it is just and equitable. In Bird vs Holbrook 1828, the plaintiff was trespassing on the defendant's
because protrusion of branches outside his property were considered as escaping from his property. However, in
property and he was hurt due to a springgun. The defendant had put spring guns without any notice and was thus held
Ponting vs Noakes 1994, when the plaintiff's horse intruded over his boundary and ate poisonous leaves of the
liable.
defendant's tree, he was not held liable because there was no escape.
3. Inevitable Accident: Accident means an unexpected occurance of something that could not have been predicted or
3. The thing must be a non natural use of land - The use must not be an ordinary use of the land. There must be a
prevented. In such a case, the defendants will not be liable if they had no intention to cause it and if the plaintiff is
special purpose because of which it brings additional danger to other. In Noble vs Harrison 1926, a branch of a tree
injured because of it. For example, in Stanley vs Powell 1891, the plaintiff and the defendant were members of a
growing on defendant's land broke and fell on plaintiff's vehicle. It was held that growing regular trees is not a non
shooting party. The defendant shot a bird but the bulled ricocheted off a tree and hit the plaintiff. The defendant was
natural use of land and the branch fell because of an inherent problem and not because of any negligence of the
not held liable because it was an accident and the defendant did not intent it and could neither have prevented it.
defendant and so he was not liable.
4. Act of God: An act of God in a legal sense is an extraordinary occurance of circumstance which could not have
As mentioned before the following are exceptions or defenses against this rule -
been predicted or prevented and happens because of natural causes. Nobody can predict, prevent, or protect from a
1. Plaintiffs own default - If the thing escapes due to plaintiff's fault the defendant cannot be held liable. In Eastern and
natural disaster such an an earthquake or flood. In Ramalinga Nadar vs Narayan Reddiar AIR 1971, it was held that
South African Telegraph Co. Ltd. v Capetown Tramway Co 1902. the plaintiff's submarine cable transmissions
criminal activities of an unruly mob is not an act of God.
were disturbed by escape of electric current from defendant's tramway. It was held that since the current was not
5. Private Defence: As per section 96 of IPC, nothing is an offence that is done in exercise of the right of private
causing any problem to regular users and it was causing problem to the cables only because they were too sensitive
defence. Thus, law permits the use of reasonable and necessary force in preventing harm to human body or property
and so the defendant cannot be held liable. One cannot increase his neighbor's liabilities by putting his land to special
and injuries caused by the use of such force are not actionable. In Bird vs Hollbrook 1892, the defendant used spring
uses.
guns in his property without notice. It was held that he used excessive force and so was liable for plaintiff's injury even
2. Act of God - In circumstances where no human has control over, no one can be held liable. In Nichols vs Marsland
though the plaintiff was trespassing on his property.
1876, the defendant created artificial lakes to store rainwater. In that particular year, there were exceptionally heavy
6. Mistake: Generally, mistake is not a valid defence against an action of tort. Thus, hurting a person under the
rains, which caused the embankments to break causing floods, which broke defendant's bridges. It was held that since
mistaken belief that he is trespassing on your property, will not be defensible. However, in certain cases, it could be a
there was no negligence on the part of the defendant and the flood happened only because of rains so heavy that
valid defence.
nobody could imagine, the defendant was not liable.
7. Necessity: If the act causing damage is done to prevent a greater harm, it is excusable. For example, a Ship ran over
3. Consent of the plaintiff - If the plaintiff has consented for the accumulation of the dangerous thing, he cannot hold
a small boat hurting 2 people in order to prevent collision with another ship which would have hurt hundreds of people
the defendant liable. This is also the case when an activity is done for mutual benefit. For example, A lives on the
is excusable. Thus, in Leigh vs Gladstone 1909, force feeding of a hunger striking prisoner to save her was held to be
ground floor and the defendant lives on the floor above A's. Now, a water tank is built by the defendant to supply
a good defence to an action for battery.
water for both of them. The defendant will not be held liable for leakage of water fro m the tank.
8. Statutory Authority: An act that is approved by the legislature or is done upon the direction of the legislature is
4. Act of third party - When a third party, who is not an employee or a servant or a contractor of the defendant is
excused from tortious liability even though in a normal circumstances, it would have been a tort. When an act is done
responsible for causing the dangerous thing to escape, the defendant will not be held liable for the damage. In Box vs
under the authority of an Act, it is a complete defence and the injured party has no remedy except that is prescribed by
Jubb 1879, the overflow from the defendant's reservoir was caused by the blocking of a drain by some strangers. The
the statute
defendant was held not liable. However, if such act can be foreseen, this defence cannot be pleaded because the
Q. What are the torts relating to the absolute liability? What are its kinds? What is Ryland vs Fletcher rule?
defendant must take precautions to prevent such an act. In M.P. Electricity Board vs Shail Kumar AIR 2002, a
What are its exceptions? Is this rule applied in India in present circumstances? If not, why?
person was killed by a live electric wire lying on the road. SC applied the rule of strict liability and held that the
In certain situations, a person is held liable for the damages caused by his actions even when the actions are done
defence of act of stranger is not applicable because snapping of wire can be anticipated and the Electricity Board
without any ill intention or negligence on account of equity and justice. For example, if a person keeps a lion for a pet
should have cut off the current as soon as the wire snapped.
and despite of all the precautions the lion escapes the cage and kills someone. In this case, the owner of the lion will be
5. Statutory Authority - When an act is approved by the legislature or is done on the direction of the legislature, it is a
liable even though he had no ill intention to cause death and had taken all the precautions to keep the lion in the cage.
valid defence for an action of tort even when the rules of Ryland vs Fletcher apply. However, it is not application
This seems just because the damage happened only because he brought a dangerous thing on his property. He was also
when there is negligence.
aware of the consequences if the lion escapes the cage and so he should be made liable if it escapes and causes
damage.
Position in India
The principle of strict liability is applicable in India as well. For example, Motor Vehicles Act 1938, recognizes no
This principle of holding a person liable for his actions without any kind of wrong doing on his part is called the
fault liability. Similarly, the liability of a public carrier such as railways has also been increased from that of a bailee
principle of absolute liability or no fault liability. This principle was first upheld in the case of Ryland vs Fletcher by
to an insurer. However, there has been a deviation in the scope of this rule. Depending on the situation, its scope has
the Privy Council in 1868. However, later on some exceptions to this were also established due to which "strict
been increased as well as decreased by the courts. For example, in Madras Railway Co. vs Zamindar 1974, the
liability" is considered a more appropriate name for this principle. In this case, the defendant hired contractors to
water collected in a pond for agricultural purposes escaped and caused damage to the railway track and bridges. Here,
build a reservoir over his land for providing water to his mill. While digging, the contractors failed to observe some
the application of this rule was restricted because the collection of water in such a way is a necessity in Indian
old disused shafts under the site of the reservoir that lead to plaintiff's mine on the adjoining land. When water was
conditions and so it is a natural use of the land. This mechanism to store rainwater is used throughout the country and
 since ages. Therefore, the defendant was not held liable. defendant, negligently let fall a plank into a ship’s hold containing petrol in metal containers. The impact of the plank
as it hit the floor of the hold caused a spark, and petrol vapour was ignited. The ship was destroyed. Arbitrators found
A landmark case in this respect was the case of M C Mehta vs Union of India AIR 1987. In this case, oleum gas that the spark could not have been reasonably foreseen, though some damage was foreseeable from the impact. The
from a fertilizer plant of Shriram Foods and Fertilizers leaked and caused damage to several people and even killed defendant was found liable because the claimant’s loss was a direct, though not reasonably foreseeable, result.
one advocate. In this case, the rule of Ryland vs Fletcher was applied. However, the company pleaded sabotage as a
defence. SC went one step further and promulgated the rule of Absolute Liability. It observed that the rule of Ryland Reasonable Foreseeability - In The Wagon Mound (No. 1) [1961] AC 388, the defendant carelessly discharged oil
vs Fletcher was a century old and was not sufficient to decide cases as science has advanced a lot in these years. If from a ship in Sydney Harbour, and the oil floated on the surface of the water towards the claimant’s
British laws haven't progressed, Indian courts are not bound to follow their law and can evolve the laws as per the wharf. The claimant’s servants, who were welding on the wharf, continued their work after being advised (non-
requirements of the society. It held that an enterprise that engages in dangerous substances has an absolute negligently) that it was safe to do so. Sparks from the welding equipment first of all ignited cotton waste mixed up in
responsibility to ensure the safety of the common public. It is only the company that can know the consequences of its the oil; then the oil itself caught fire. The claimant sued for destruction of the wharf by fire. The defendant was found
activities and so it must take all the steps to prevent any accident. If, even after all precautions, accident happens, the not liable in negligence, because it was not reasonably foreseeable that the oil might ignite on water in these
company still should be made absolutely liable for the damages. The reason being that the company has a social circumstances. Damage by fouling was foreseeable; damage by fire (the case here) was not foreseeable. The Privy
obligation to compensate the people who suffered from its activity. SC also laid down that the measure of Council said that in the tort of negligence Re Polemiswas no longer good law and liability
compensation should depend on the magnitude and capacity of the enterprise so that it can have a deterrent effect. would lie only for foreseeable damage of the kind or type in fact suffered by the claimant.
Q. How can liability in Torts be discharged?
Q. What are the aims and objects of the CPA, 1986? Describe the constitution, functions and the procedure of
The following are the modes through which liability in Torts can be discharged - District Forum under the CPA. What are the provisions of appeal under the CPA and before which authority
1. Death of a party - "Actio personalis maritur cum persona" means Personal actions of a person die with the person. an appeal lies against an order of an agency? Explain the composition, jurisdiction, and powers of State
But not always. In several cases, the cause of action remains valid even after death of wrongdoer. For example, Consumer Forum (State Consumer Redressal Commission) under CPA. Define and discuss the
Workers' Compensation Act, Fatal Accidents Act, etc. word"consumer" and “service" under CPA. Illustrate with cases.
2. Acquiescence - If the party whose right is being violated does not protest and allows the transgression to happen Making money quickly is a very tempting proposition. Businesses, companies, shopkeepers, retailers, and sellers are
without any restriction. all interested in maximizing their profits. In doing so, very often they neglect the best interests of the buyer. Many
3. Waiver - If the plaintiff starts proceedings for one remedy for example, Civil suit, he cannot file another suit under times, a buy gets a defective product, or a product that fails to perform as promised. Besides losing money put in
another remedy such as Tortios Suit for the same cause. purchasing a product, sometimes, due to defects in the product, the buyer is injured as well. In all such cases, there is a
4. Release - If the plaintiff voluntarily releases the wrongdoer from liability. In England, consideration is must. In violation of a legal right of the buyer and he is entitled to sue the seller. Before enactment of the Consumer Protection
India, no consideration is required. Act, 1986, filing a civil suit for damages was the only option available to an aggrieved buyer. However, such a suit is
5. Accord and Satisfaction - If the parties compromise and settle the dispute. very expensive and time consuming, because of which, buyers were not able to use this mechanism for relatively
6. Judgement Recovered - "res judicata" - upon the damages awarded by the court. smaller amounts. This gave a field day to the traders because making substandard products or not delivering on
7. Statute of limitation - Suit must be filed within the time frame provided by statutes of limitations. promises was a cheap option to make quick money, after all, very few buyers would go to court. A common man was
Q. Explain various Judicial remedies that are available to a plaintiff in an action of tort. Are there any extra completely helpless because of no control and penalty over unscrupulous sellers.
judicial remedies too? If so, enumerate them. What are the general types of damages available in cases of
Torts? Explain with examples. What is the doctrine of remoteness of damages? Discuss law on this point. In this background, the CPA 1986 gave power in the hands of the buyer by allowing an easier and cheaper way to
Judicial Remedies - redress their grievances, thereby holding the sellers accountable for their actions more often. It provides redress to a
1. Damages - It is the most important remedy of all. consumer when the purchased product is defective or when there is a deficiency in service. The following are aims and
1. Nominal Damages - In cases of Injuria Sine Damnum (Ashby vs White) objectives of this act -
2. Contemtuous Damages - When plaintiff has suffered a wrong but does not deserve compensation. For example, if 1. The most important objective of this act is to provide a fast and cheap way for consumers to hold the sellers
the reason for battery was plaintiff's offensive remarks, judge may think that the plaintiff does not deserve accountable for their products or services.
compensation. 2. Justice to consumers.
3. Compensatory, Aggravated, and Exemplary Damages 3. Protection of consumers from fraudsters or companies selling substandard products and services.
4. Prospective Damages - Compensation for damages that haven't yet happened but are likely happen because of 4. Penalty to sellers for substandard product or service.
defendant's tortious action. 5. Check on sellers and service providers.
2. Injunctions - An injunction is an order of the court directing the doing of some act or restraining the commission or Besides the above objectives, Section 6 of CPA 1986 also provides certain rights as objectives to the consumers. These
continuance of some act. The court has the discretion to grant or refuse this remedy and when remedy by way of are -
damages is a sufficient relief, injunction may not be granted. It includes temporary and permanent injunction. 1. Right to be protected against goods that are hazardous or dangerous to life and property.
3. Specific restitution of Property 2. Right to be informed about the quality, quantity, potency, purity, standard and price or a product and service.
Extra Judicial Remedies 3. Right to competitive pricing.
Besides going to the court for justice, a person, in certain situations, can also have recourse to remedies without going 4. Right to be heard and to be assured that consumer interest will receive due consideration at appropriate forum.
to any court. Such remedies are called extra judicial remedies and are availed by a person by his own strength as self- 5. Right to redressal against unfair trade practices and exploitation of consumers.
help. These are - 6. Right to consumer education.
1. Removal of trespasser - A person is entitled to remove the trespasser by force. It is a complete code in the sense that it provides complete details of the constitution and jurisdiction of the
2. Recaption of chattels (personal belongings) - A person is entitled to take possession of his goods by force. commission and procedure for filing the complaint and appealing the decision. It does not depend on CPC and the
3. Abatement of nuisance - An occupier of a land is permitted to abate any nuisance that is affecting his land. cases can be finalized completely under this act. In fact, as held in Ansal Properties vs Chandra Bhan Kohli 1991,
4. Distress Damage feasant - A person has the right to seize goods or cattle that has strayed on his land until Consumer Disputes Redressal Agencies provide complete machinery for justice including a final appeal to the
compensation is paid. Supreme Court and so are outside the scope of High Courts and HCs can't entertain writ petitions against their
Remoteness of Damage judgments.
The law allows only those losses which are not too 'remote'. There are two main tests of remoteness which are applied
in tort, namely direct consequences and reasonably foreseeable consequences. Under Section 9 of this act, three agencies are established to hear consumer complaints -
1. A Consumer Disputes Redressal Forum in each district (For amounts up to 20 Lakhs)
Direct Consequence - Provided some damage is foreseeable, liability lies for all the natural and direct consequences 2. A Consumer Disputes Redressal Commission in each state. (For amounts from 20 Lakhs to 1 Cr)
flowing from the breach of duty. In Re Polemis [1921] 3 KB 560 (CA), stevedores, who were servants of the 3. A National Consumer Disputes Redressal Commission in the center. (For amounts above 1 cr)
 If, after conducting the procedure in Section 13, the forum finds that there was a defect in the product or a deficiency
District Forum in service or that any of the allegations in the complaint are true, it can ask the opposite party to do any of the
Composition (Section 10) following -
1. Each District Forum shall consist of - 1. to remove the defect pointed out by an appropriate laboratory from the goods in questions.
a. A person who is, or who has been or is qualified to be, a District Judge, who shall be its President 2. to replace the goods with new goods of similar description which shall be free from any defect.
b. two other members, one of whom shall be a woman, who shall have the following qualifications, namely - 3. to return to the complainant the price or as the case may be, the charges paid by the complainant.
1. be not less than thirty-five years of age, 4. to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the
2. posses a bachelor's degree from a recognized university, consumer due to the negligence of the opposite party.
3. be persons of ability, integrity and standing, 5. to discontinue the unfair trade practice or restrictive trade practice or not to repeat it.
4. and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, 6. not to offer the hazardous product for sale.
commerce, accountancy, industry, public affairs, or administration 7. to cease manufacture of hazardous goods and to desist from offering services that are hazardous.
1-A. Every appointment under sub-section (1) shall be made by the State Government on the recommendation of 8. when injury has been suffered by may customer who are not easily identifiable, the opposite party may be required
selection Committee consisting of the following namely: to pay such sum as the forum deems fit.
1. The President of the State Commission - Chairman, 9. to issue any corrective advertisement to neutralize the effect of any misleading advertisement.
2. Secretary, Law Department of the State - Member, 10. to provide adequate costs to parties.
3. Secretary, in charge, of the Department dealing with Consumer affairs in the State - Member. The District Forum also has the power to grant punitive damages in such circumstances as it deems fit.
2. Every member of the District Forum shall hold office for a term of five years or up to the age of sixty-five years/ The forum must take into account all the evidence and the documents produced by the parties and the order of the
whichever is earlier: forum should be a speaking order, which means that it should detail the reasons behind the order. In K S Sidhu vs
Senior Executive Engineer 2001, the complaint was dismissed by the District Forum by a non speaking order. It did
3. The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the not discuss the evidence or the documents submitted before it and thus it was held that the order was unjust and fit to
members of the District Forum shall be such as may be prescribed by the State Government. be set aside.
Provisions for Appeal (Section 15)
Jurisdiction (Section 11) From District Forum to State Commission (Section 15)
1. Pecuniary Jurisdiction - Subject to other provisions of this Act, the District Forum shall have jurisdiction to entertain Any person aggrieved by an order by the District Forum may prefer an appeal against such order to the State
complaints where the value of the goods or services and the Compensation if any, claimed does not exceed rupees Commission within a period of 30 days from the date of the order. The state commission may entertain an appeal after
twenty lakhs. the expiry of the said period of 30 days if it is satisfied that there was sufficient cause for not filing it with in that
2. Territorial Jurisdiction - A complaint shall be instituted in a District Forum within the local limits of whose period. With the appeal, the appellant must deposit 50% of the amount that he is required to pay or 25000/- (whichever
jurisdiction, - is less).
1. The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the From State Commission to National Commission (Section 19)
complaint, actually and voluntarily resides or carries on business or has a branch office, or] personally works for gain Any person aggrieved by an order by the State Commission may prefer an appeal against such order to the National
or Commission within a period of 30 days from the date of the order. The commission may entertain an appeal after the
2. Any of the opposite parties where there are more than one, at the time of the institution of the complaint, actually and expiry of the said period of 30 days if it is satisfied that there was sufficient cause for not filing it with in that period.
voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such With the appeal, the appellant must deposit 50% of the amount that he is required to pay or 35000/- (whichever is
case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on less).
business or have a branch office, or personally works for gain, as the case may be, acquiesce in such institution; or
3. The cause of action, wholly or in part arises. As per section 19-A, appeal to the State Commission or the National Commission shall be heard as expeditiously as
For a complaint to lie in a district forum, at least a part of the transaction of the actual business must have occurred in possible and an effort shall be made to dispose off the appeal within a period of 90 days from the date of admission. If
that district. In National Insurance Co vs Sonic Surgical 2003, a fire accident took place in Ambala and a part of the the appeal is disposed of after this time, the commission shall state the reasons for the delay.
claim was partly processed in Chandigarh. It was held that merely processing of claim in one place does not form a From National Commission to Supreme Court (Section 23)
ground to file a case in that district. Any person aggrieved by an order made by the National Commission in exercise of its power conferred by sub-clause
(i) of clause (a) of section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty
Functioning of a District Forum Who can file a complaint (Section 12) days from the date of the order. Provided that the Supreme Court may entertain an appeal after the expiry of the said
The following can file a complaint - period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period. Provided Further
1. The consumer to whom the goods or services have been sold or are agreed to be sold. that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be
2. Any recognized consumer association even if the consumer is not a member of the association. Recognized means entertained by the Supreme Court unless that person had deposited in the prescribed manner fifty per cent. of that
any voluntary association registered under Companies Act 1956 or any other law for the time being in force. amount or rupees fifty thousand, whichever is less.]
3. One or more consumers, where there are numerous consumers all having same interest, with the permission of State Commission
district forum. Composition (Section 16)
4. The state or central government. 1. Each State Commission shall consist of -
The complaint must be accompanied with such amount of fee and payable in such manner as may be prescribed. a. a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its
The forum may accept or reject the complaint. The complainant must be given an opportunity to be heard before President :
rejection. The acceptance or rejection will be decided in 21 days. Provided that no appointment under this clause shall be made except after consultation with the Chief Justice
Procedure on admission of complaint (Section 13) of the High Court;
Upon acceptance of the complaint, the forum will send a copy to the opposite party within 21 days, who has to b. two other members, who shall be persons of ability, integrity and standing and have adequate knowledge or
respond with his version of the complaint within 30 days (extendable by 15 days). Upon receipt of the response, the experience of, or have shown capacity in dealing with problems relating to economics, law, commerce, accountancy,
forum will give its decision. If no response is received, the forum will give and ex parte decision. An effort will be industry, public affairs or administration, one of whom shall be a woman :
made by the forum to make a decision within 3 months of date of receipt of notice by the opposite party where no Provided that every appointment made under this clause shall be made by the State Government on the
goods testing needs to be done or within 5 months otherwise. recommendation of a selection committee consisting of the following, namely :-
Powers (Findings) of District Forum (Section 14) (i) President of the State Commission - Chairman,
(ii) Secretary of the Law Department of the State - Member,
 (iii) Secretary, in charge of Department dealing with consumer affairs in the State - Member.
Power and Procedure (Section 22)
2. The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the The National Commission shall, in the disposal of any complaints or any proceedings before it, have -
members of the State Commission shall be such as may be prescribed by the State Government. (a) the powers of a civil court as specified in sub-sections (4), (5) and (6) of section 13;
(b) the power to issue an order to the opposite party directing, him to do any one or more of the things referred to in
3. Every member of the State Commission shall hold office for a term of five years or up to the age of sixty-seven clauses (a) to (i) of sub-section (1) of section14, and follow such procedure as may be prescribed by the Central
years, whichever is earlier and shall not be eligible for re-appointment. Government.

4. Notwithstanding anything contained in sub-section (3), a person appointed as a President or as a member before the Section 22A. Power to set aside ex parte orders - Where an order is passed by the National Commission ex parte
commencement of the Consumer Protection (Amendment) Act, 1993, shall continue to hold such office as President or against the Opposite party or a complainant, as the case may be, the aggrieved party may apply to the Commission to
member, as the case may be, till the completion ] of his term. set aside the said order in the interest of justice.

Jurisdiction (Section 17) Section 22B. Transfer of cases - On the application of the complainant or of its own motion, the National
1. Pecuniary Jurisdiction - Subject to other provisions of this Act, the State Commission shall have jurisdiction to Commission may, at any stage of the proceeding, in the interest of justice, transfer any complaint pending before the
entertain complaints where the value of the goods or services and the Compensation, if any, claimed exceeds rupees 20 District Forum of one State to a District Forum of another State or before one State Commission to another State
lakhs but does not exceed rupees 1 crore. Commission
2. Territorial Jurisdiction - It can entertain appeals against the orders of any District Forum of the state.
As per section 17 A , on the application of the complainant or of its own motion, the State Commission may, at any Who is Consumer?
stage of the proceeding, transfer any complaint pending before the District Forum to another District Forum within the
State if the interest of justice so requires. As per Section 2 (1) (d) of CPA 1986 - "Consumer" means any person who, -
(i) Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under
Procedure (Section 18) any system of deferred payment and includes any user of such goods other than the person who buys such goods for
The provisions of sections 12, 13 and 14 and the rules made there under for the disposal of complaints by the District consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such
Forum shall, with such modifications as may be necessary, be applicable to the disposal of disputes by the State use is made with the approval of such person but does not include a person who obtains such goods for resale or for
Commission. any commercial purpose; or
(ii) Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly
National Commission Composition (Section 20) promised, or under any system of deferred payment and includes any beneficiary of such services other than the
1. The National Commission shall consist of- person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or
a. a person who is or has been a Judge of the Supreme Court, to be appointed by the Central Government, who shall under any system of deferred payment, when such services are availed of with the approval of the first mentioned
be its President person but does not include a person wo avails of such services for any commercial purpose;
Provided that no appointment under this clause shall be made except after consultation with the Chief Justice
of India Based on this definition, the following are essential elements of a Consumer -
b. not less than four, and not more than such number of members, as may be prescribed, and one of whom shall be a 1. Buys goods or Hires Services - Physical products such as Car, TV, Utensils etc as well as intangible services
woman, who shall have the following qualifications, namely:- ranging from Hair Cutting Saloon to Banking etc. are both valid purchases for being a consumer. The scope of
(i) be not less than thirty-five years of age; services is quite wide and more and more things are coming into its ambit slowly. For example, in the landmark case
(ii) possess a bachelor's degree from a recognized university; and of Indian Medical Association vs VP Shantha and others 1995, SC held that patients treated by a medical
(iii) be persons of ability, integrity and standing and have adequate knowledge and experience of at least ten professional is also a consumer of medical services and is covered by CPA.
years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or 2. For consideration - To be a consumer, paying consideration is a must. However, consideration may be an
administration: immediate payment or a promise of future payment in full or in part. It can also be any arrangement of deferred
payments. Further, unlike in Sale of Goods Act, consideration need not only be in the form of money but transaction
Provided that not more than fifty per cent, of the members shall be from amongst the persons having a judicial of services, exchange or barter is also valid. In Motor Sales & Service vs Renji Sebastian 1991, the complainant
background booked a motor cycle to be delivered on a given date for a consideration. His turn was ignored. The dealer was ordered
to give him the motorcycle for the price of that date and also 500/- as compensation.
Provided also that every appointment under this clause shall be made by I. Central Government on the 3. For personal Use - The goods or service must be bought for personal use. Originally, a person who bought a
recommendation of a Selection Committee consisting the following, namely:- product or a service for commercial use was not considered a consumer but after the amendment in 1993, use of such
(a) a person who is a Judge of the Supreme Court, to be nominated by the Chief Justice of India - Chairman: goods for making a livelihood is accepted. Thus, a self employed person who buys a Photocopy machine for his own
(b) the Secretary in the Department of Legal Affairs in the Government of India - Member; shop is a consumer. However, goods must not be bought for resale.
(c) Secretary of the Department dealing with consumer affairs in the Government of India - Member; In Anant Raj Agencies vs TELCO 1996, a company bought a car for personal use of a director of the company. It
was held that since the car was bought for personal use and not for commercial use or for making a profit on a large
Jurisdiction (Section 21) scale, the company was a consumer.
4. Use by the purchaser or anybody else - It is not necessary that only the purchaser of the goods or services be the
Subject to the other provisions of this Act, the National Commission shall have jurisdiction - user. Anybody who uses the goods or services with due permission of the purchaser, is also a consumer. Thus, in a
(a) to entertain - landmark case of Spring Meadows Hospital vs Harjot Ahluwalia AIR 1998, SC held that the parents of the child
(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees who was treated by the hospital were hirers of the service while the child was the beneficiary and thus both were
twenty lakhs; and consumers.
(ii) appeals against the orders of any State Commission; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been What is a Service?
decided by any State Commission where it appears to the National Commission that such State Commission has As per Section 2 (1) (o) "Services" means service of any description which is made available to potential users and
exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the includes, but not limited to, the provision of facilities in connection with banking, Financing insurance, transport,
exercise of its jurisdiction illegally or with material irregularity. processing, supply of electrical or other energy, board or lodging or both, housing construction entertainment,
amusement or the purveying of news or other information, but does not include the rendering of any service free of
charge or under a contract of personal service;

Based on this definition, the scope of services is quite wide. It will not be an exaggeration to says that any thing for
which a customer pays and that is not a physical product is a service. Cinema halls, Health clubs, University, College,
are all service providers.
In the landmark case of Indian Medical Association vs VP Shantha and others 1995, SC held that patients treated
by a medical professional is also a consumer of medical services and is covered by CPA.
In Union of India vs Mrs S Prakash 1991, Telephone facility was held as a service and the telephone rental paid by
the consumer was the consideration for the service.

The service must be a paid service. Free or non-profit services do not fall under this category and claims cannot be
made regarding such services under the CPA. In A Srinivas Murthy vs Chairman, Bangalore Development
Authority 1991, the question before the court was whether a tax payer is a consumer or not. A person, who paid house
tax, was bitten by a stray dog and he sued Bangalore Development Authority for not taking care of the menace of stray
dogs. It was held that there was no quid pro quo between the tax and the services rendered by BDA. The removal of
stray dogs was a voluntary action of BDA and was done free of cost. Thus, the complainant was not a consumer and
removal of dogs was not a service under this act.

Just like a defect, which renders a product not as useful as promised, there can be a deficiency in service, which
renders a service not as useful as promised at the time of sale. CPA 1986 allows consumers of services to take action
against service providers for compensating for the deficiency in the promised service. As per section 2(1)(g),
"Deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or under any law for the time being in force or has been undertaken
to be performed by a person in pursuance of a contract or otherwise in relation to any service.
Thus, in Mahanagar Telephone Nigam vs Vinod Karkare 1991, when a complaint with the telephone dept. was
pending for more than six months, it was held to be a deficiency in service.

In Indian Airlines vs S N Singh 1992, a metallic wire was present in the food given to a traveler because of which his
gums were hurt. He was awarded 2000 Rs as compensation for deficiency in service.