Law of Torts and Consumer Protection
- Torts and Tortuous Liability Introduction
-Definition, Nature and Characteristics of Torts
-Constituents of Tort
-Damnum sine injuria, Injuria sine damnum
-Malice, Negligence, Motive
-Who,may sue, who may not be sued ?
-Strict and Absolute Liability
- Justification in Tort
-Volenti non fit injuria
-Inevitable accident and Act of God
- Liability for Torts Committed by Others
-Liability of the State
-Doctrine of sovereign Immunity
- Specific Torts
- Consumer Protection Act
-Consumer definition and concept
-Contract of service and contract for service
-Enforcement of Consumer rights.
Aggarwal V.K., Law on Consumer Protection
BangiaR.K.,The Law of Torts.
Kapoor S.K.,Law of Torts.
Lal Rattan &LalDhiraj,The Law of Torts.
ParanjapeN.V.,Law of Torts.
SalmondW.G.,Law of Torts.
Winfield and Jolowicz,Torts.
TORTS AND TORTUOUS LIABILITY INTRODUCTION
The word tort has been derived from the latin word “tortum” which means to twist. In general, it means conduct that adversely affects the legal right of others and is thus, “wrong”. For a healthy society it is necessary that it be free of anti-social elements and that an individual should have freedom to exercise his rights without being 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 ibiremedium” implies. Where ever there is a right, there is a remedy. Indeed, a right has no value if there is no way to enforce it. Such rights of individuals primarily originate from two sources – contractual obligations and inherent rights that are available to all the citizens against every other citizen, aka rights in rem.
While the violation of contractual right has clear remedy that arises from the contract itself, the violation of rights that are available to all the persons in general does not have a clear remedy because there is no explicit contract between the two parties. Such violations are called wrongs and it is for such wrongs that the law of torts has been developed. For example, one has a right against all other persons to be free of noise in the night. If somebody starts playing music loudly, then he violates one’s right to be noise free. He is, thus, doing a wrong and even though there is no contract between the two, one can sue him for damages.
There can be innumerable types of acts that can transgress the rights of others and it is not possible to come up with a definition that can accommodate all the cases.
However, the following are some definitions from the experts –
Salmond – A tort is a civil wrong for which the remedy is 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 duty is towards persons in general and its breach is redressable by an action for unliquidated damages.
Fraser – Tort in an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.
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 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 of trust are civil wrongs but are not torts because their remedies exist in the contract itself. To determine if a particular act is a tort or not, we must 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.
Historically, crime and tort originated from the same root. Later on, they separated on the account that a 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 deals with criminal conduct evolved a lot faster than the branch of law that deals with torts.
The nature of tort can be understood by distinguishing it from crime and contractual civil liabilities. It can be said that tort is the residual of wrongful acts that are not crime and that do not fall under contractual liabilities. Thus, if a wrongful act is neither crime nor a violation of a contract, it may fall under tort. The damages are unliquidated and are decided only by the common sense of the courts. The following differences between Tort and Crime and Tort and Breach of Contract, shows the true nature of Tort.
Distinction between Tort and Breach of Contract
|Tort||Breach of Contract|
|Tort occurs when the right available to all the persons in general (right in rem) is violated without the existence of any contract.||A breach of contract occurs due to a breach of a duty (right in persona) agreed upon by the parties themselves.|
|Victim is compensated for unliquidated damages as per the judgment of the judges. Thus, damages are always unliquidated.||Victim is compensated as per the terms of the contract and damages are usually liquidated.|
|Duty is fixed by the law of the land and is towards all the persons.||Duty towards each other is affixed by the contract agreed to by the parties.|
|Doctrine of privity of contract does not apply because there is no contract between the parties. This was held in the case of Donaghuevs Stevenson 1932.||Only the parties within the privity of contract can initiate the suit.|
|Tort applies even in cases where a contract is void. For example, a minor may be liable in Tort.||When a contract is void, there is no question of compensation. For example, a contract with a minor is void ab initio and so a minor cannot be held liable for anything.|
|Justice is met by compensating the victim for his injury and exemplary damages may also be awarded to the victim. In Bhim Singh vs State of J K AIR 1986 – the plaintiff was awarded exemplary damages for violation of his rights given by art 21.||Justice is met only by compensating the victim for actual loss.|
In the case of Donaghuevs Stevenson 1932, A purchased ginger beer in a restaurant for his woman friend. She drank a part of it and poured the rest into a glass. Thereby, she saw a dead snail in the drink. She sued the manufacturer. It was held that the manufacturer had a duty towards the public in general for making sure there are no noxious things in the drink even though there was no contract between the purchaser and the manufacturer.
The same principal was applied in the case of Klaus Mittelbachertvs East India Hotels Ltd AIR 1997. In this case, Lufthansa Airlines had a contract with Hotel Oberoi Intercontinental for the stay of its crew. One of the co-pilots was staying there took a dive in the pool. The pool design was defective and the person’s head hit the bottom. He was paralyzed and died after 13 yrs. The defendants pleaded that he was a stranger to the contract. It was held that he could sue even for the breach of contract as he was the beneficiary of the contract. He could also sue in torts where plea of stranger to contract is irrelevant. The hotel was held liable for compensation even though there was no contract between the person and the hotel and the hotel was made to pay 50Lacs as exemplary damages.
Distinction between Tort and Crime
|Tort occurs when the right available to all the persons in general (right in rem) is violated without the existence of any contract.||Tort occurs when the right available to all the persons in general (right in rem) is violated and it also seriously affects the society.|
|Act is comparatively less serious and affects only the person.||Act is comparatively more serious and affects the person as well as the society.|
|Intention is usually irrelevant.||Intention is the most important element in establishing criminal liability. A crime cannot happen without Mens Rea.|
|It is a private wrong.||It is a public wrong.|
|Since it is a private wrong the wronged individual must file a suit himself for damages.||Since it is a public wrong, the suit is filed by the govt.|
|The suit is for damages.||The suit is for punishment.|
|Compromise is possible between the parties. For example, a person who has been defamed, can compromise with the defamer for a certain sum of money.||There is no compromise for the punishment. For example, if a person is guilty of murder, he cannot pay money and reduce his sentence.|
|Compounding is possible.||Compounding is generally not possible.|
|Justice is met by compensating the victim for his injury and exemplary damages may also be awarded to the victim. In Bhim Singh vs State of J K AIR 1986 – the plaintiff was awarded exemplary damages for violation of his rights given by art 21.||Justice is met by punishing the aggressor by prison or fine. In some specific cases as given in IPC compensation may be given to the victim.|
|Tortious acts are usually not criminal acts.||Several criminal acts such as assault and battery are also grounds for tortious suit.|
Ingredients of Tort (Conditions that must be satisfied before a liability in Tort arises)
There are three essential elements for an act to be liable under Tort.
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 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.
Municipal Corp of Delhi vsSubhagvanti AIR 1966 – A clock tower was not in good repairs. It fell and killed 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 law. This means that if an act that is prohibited by law causes harm, it is liable under tort. Similarly, if the omission of an act that is required by law causes harm, then it is liable under tort. For example, law requires that the driver of a vehicle must drive carefully and if driving without care, a pedestrian is hit, the omission of the act of driving carefuly is liable under tort. However, if the worshipers stop going to a temple and thereby because the priest to lose money, this action is not liable under tort because going to temple is not an act that is required by law. Such duties that are required by law are usually towards all the people in general.
Donaghuevs Stevenson 1932– Held that the manufacturer of a drink has a legal duty towards the consumers to ensure that noxious substances are not included in the drink.
- 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. For example, a person has a legal right to enjoy his property and if someone throws trash in it, this is a violation of his legal right and is liable under tort. However, it is possible that a legal right is violated without causing any physical or real damage. This is explained in the maxim – Injuria Sine Damno.
Injuria Sine Damno
Ashby vs White 1703 – The defendant wrongfully prevented the plaintiff from voting. Even though there was no damage, the defendant was held liable.
Bhim Singh vs State of J K AIR 1986 – Plaintiff was an MLA and was wrongfully arrested while going to assembly session. He was not produced before a magistrate within the requisite period. It was held that this was the violation of his fundamental rights. Even though he was release later, he was awarded 50,000RS as exemplary damages by SC.
On the other hand, it is possible that a person suffers a huge loss or damage but none of his legal rights are violated. This is called Damnum sine Injuria. In such cases, there is no tortious act.
Damnum Sine Injuria –
Glaucester Grammar School’s case 1410 – Defendant opened a rival grammar school in front of an existing one thereby causing the fees of the existing one to be reduced from 40pence to 12 pence. He was not held liable as he did not violate any legal right of the plaintiff.
UshabenvsBhagyaLaxmiChitraMandir AIR 1978– Plaintiff sought a permanent injunction against the cinema house to restrain them from showing the movie Jai SantoshiMaa. It was contended that the movie depicts the goddesses Laxmi, Saraswati, and Parvati in bad light, which is offensive to the plaintiff. It was held that hurt to religious sentiments is not recognized as a legal wrong. Since there was no violation of a legal right, an injunction was not granted.
Chesmorevs Richards 1879 – Plaintiff had been drawing water from underground for past 60 yrs. The defendant sunk a bore well on his land and drew huge quantity of water which diminished the water supply of the plaintiff. It was held that the defendant was not liable because he was only exercising his right and did not violate any right of the plaintiff.
Harm due to negligence – A person is not liable in tort even if he causes harm due to negligence but does not cause injury. In Dickson vs Reuter’s Telegram Co 1877, the defendant company delivered a telegram that was not meant for the plaintiff to the plaintiff. Based on the telegram, the plaintiff supplied some order which was not accepted by the sender of the telegram. Plaintiff suffered heavy losses and sued the defendant company. It was held that the company owed a contractual duty only to the sender of the telegram and not to the receiver. Hence they were not liable.
Harm due to malice – If a person has not caused an injury even if he does an act with malice, he is not liable. In Bradford Corporation (mayor of) vs Pickles 1895, the defendants sunk a shaft in their own land which caused the water to become discoloured and unsuitable for the plaintiff. It was held that even if the defendant did it with malice, he had not violated any right of the plaintiff and hence was not liable.
- Legal Remedy – Historically, a person whose legal right was violated was allowed to sue only upon permission from the King. There were only certain predefined torts for which the king’s permission could be obtained. Thus, it was necessary to have legal remedy for that particular violation before an action for damages could be started.
However, now, such a requirement is not there. It has been accepted that there can be many kinds of torts and if a violation of a legal right has happened, the person is entitled to sue.
Kinds of Torts
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 classified on the basis of way of incurrment of liability into the following three categories –
- Intentional – Wrongful acts that are done intentionally, irrespective of with or without malice, belong to this category. For example, torts such as assault, battery, trespass to land, false imprisonment are intentional torts.
- Negligent Conduct – Wrongful acts that are done without any intention but because of not taking proper care that is required by law fall into this category.
- Strict Liability – Acts that are neither done intentionally nor do involve any negligence, but still cause an injury to other are liable under the concept of strict liability as propounded in Rylandsvs Fletcher. In strict liability cases, the defendant is liable even if it acted reasonably. There are 3 types of strict liability cases:
1- keeping wild animals
2- dangerous, legal activities such as blasting roads
3- the manufacture of products (products liability)
Torts can also be classified according to the type of damage –
- Physical Torts – Causing physical hurt to body such as assault, battery. It can happen with intention or even with negligence.
- Abstract Torts – Causing damage to mind or reputation such as defamation.
- Tort involving property – For example, Trespass to land.
- Tort involving legal right – For example, false imprisonment.
- Nuisance – Causing unreasonable restriction towards exercise of one’s legal right.
JUSTIFICATION IN TORT: GENERAL DEFENSES FOR TORTS
Even when a plaintiff provides proof for the existence of all the essential elements of a tort, it is possible in some cases for the defendant to take certain defences which can remove his liability, These defenses are nothing but specific situations or circumstances in which a defendant is given a waiver for his tortious action. These are as follows –
- Volenti Non fit Injuria
Whenperson consents for infliction of an harm upon himself, he has no remedy for that in Tort. That means, if a person has consented to do something or has given permission to another to do certain thing, and if he is injured because of that, he cannot claim damages. For example, A purchases tickets for a Car race and while watching the race, an collision of cars happens and the person is injured. Here, by agreeing to watching the race, which is a risky sport,it is assumed that he voluntarily took on the risk of being hurt in an accident. Thus, he cannot claim compensation for the injury.
Such consent may be implied or express. For example, a person practicing the sport of Fencing with another, impliedly consents to the injury that might happen while playing.
In Woolridge vs Sumner 1963, the plaintiff a photographer was taking photographs at a horse show, during which one horse rounded the bend too fast. As the horse galloped furiously, the plaintiff was frightened and he fell in the course. He was seriously injured. It was held that the defendants had taken proper care in closing the course and the plaintiff, by being in the show, agreed to take the risk of such an accident. The defendants were not held liable.However, the action causing harm must not go beyond the limit of what has been consented. For example, in a sport of fencing, a person consents to an injruy that happens while playing by the rules. If he is injured due to an action that violates the rules, he can claim compensation because he never consented to an injury while playing without rules.
In LaxmiRajanvs Malar Hospital 1998, a woman consented for a surgery to remove a lump from her breast. But the hospital removed her uterus as well without any genuine reason. It was held that removing of her uterus exceed beyond what she had consented for.
Also, the consent must be free. It must not be because of any compulsion. Thus, if a servant was compelled by the master to do a certain task despite his protests, and if he is injured while doing it, the master cannot take the defence of volenti non fit injuria because the consent was not free.
Exceptions – In the following conditions, this defence cannot be taken even if the plaintiff has consented –
- Rescue Conditions – When the plaintiff sufferes injury while saving someone. For example, A’s horse is out of control and is galloping towards a busy street. B realizes that if the horse reaches the street it will hurt many people and so he bravely goes and control’s the horse. He is injured in doing so and sue’s A. Here A cannot take the defence that B did that act upon his own consent. It is considered as a just action in public interest and the society should reward it instead of preventing him from getting compensation.
- Unfair Contract Terms – Where the terms of a contract are unfair, the defendant cannot take this defence. For example, even if a laundry, by contract, absolves itself of all liability for damage to clothes, a person can claim compensation because the contract is unfair to the consumers.
- Plaintiff the wrongdoer
A person cannot take advantage of his own wrong. This principle has been in use since a long time as it is just and equitable. For example, a person trespassing one another’s property is injured due to darkness. He cannot claim compensation because he was injured due to an action which was wrong on his part. However, this defence exists only if the injury happens because of a wrongful act of the plaintiff. It does not exist if the injury happens because of a wrongful act of the defendant even if the plaintiff was doing a wrongful but unrelated act.
For example, in Bird vs Holbrook 1828, the plaintiff was trespassing on the defendant’s property and he was hurt due to a springgun. The defendant had put spring guns without any notice and was thus held liable.
3. Inevitable Accident
Accident means an unexpected occurrence of something that could not have been predicted or prevented. In such a case, the defendants will not be liable if they had no intention to cause it and if the plaintiff is injured because of it. For example, in Stanley vs Powell 1891, the plaintiff and the defendant were members of a shooting party. The defendant shot a bird but the bullet ricocheted off a tree and hit the plaintiff. The defendant was not held liable because it was an accident and the defendant did not intent it and could neither have prevented it.
However, the defence of Inevitable Accident is not a license to negligence. For example, A has hired B’s car. While driving, one of the tires bursts and causes accident injuring A. Here, if the tires were worn out and were in bad condition, it would be negligence of B and he would be held liable for A’s injuries.
4. Act of God
An act of God in a legal sense is an extraordinary occurrence of circumstance which could not have been predicted or prevented and happens because of natural causes. Nobody can predict, prevent, or protect from a natural disaster such an earthquake or flood. Thus, it is unreasonable to expect a person to be liable for damages caused by such acts of God. There are two essential conditions for this defence – the event must be due to a natural cause and it must be extraordinary or something that could not have been anticipated or expected. For example, heavy rains in the monsoon are expected and if a wall falls and injures someone, it cannot be termed an act of god because protection for such expected conditions should have been taken. But if a building falls due to a massive earthquake and injures and kills people, this defence can be used. In RamalingaNadarvs Narayan Reddiar AIR 1971, it was held that criminal activities of an unruly mob is not an act of God.
- Private Defence
As per section 96 of IPC, nothing is an offence that is done in exercise of the right of private defence. Thus, law permits the use of reasonable and necessary force in preventing harm to human body or property and injuries caused by the use of such force are not actionable. However, the force must be reasonable and not excessive. In Bird vsHollbrook 1892, the defendant used spring guns in his property without notice. It was held that he used excessive force and so was liable for plaintiff’s injury even though the plaintiff was trespassing on his property.
Generally, mistake is not a valid defence against an action of tort. Thus, hurting a person under the mistaken belief that he is trespassing on your property, will not be defensible. However, in certain cases, it could be a valid defence. For example, in the case of malicious prosecution, it is necessary to prove that the defendant acted maliciously and without a reasonable cause. If the prosecution was done only by mistake, it is not actionable.
Further, honest belief in the truth of a statement is a defence against an action for deceit.
If the act causing damage is done to prevent a greater harm, it is excusable. For example, a Ship ran over a small boat hurting 2 people in order to prevent collision with another ship which would have hurt hundreds of people is excusable. Thus, in Leigh vs Gladstone 1909, force feeding of a hunger striking prisoner to save her was held to be a good defence to an action for battery.
- Statutory Authority
An act that is approved by the legislature or is done upon the direction of the legislature is excused from tortious liability even though in normal circumstances, it would have been a tort. When an act is done under the authority of an Act, it is a complete defence and the injured party has no remedy except that is prescribed by the statute.
In Vaughan vsTaffValde Rail Co 1860, sparks from an engine caused fire in appellant’s woods that existed in his land adjoining the railway track. It was held that since the company was authorized to run the railway and since the company had taken proper care in running the railway, it was not liable for the damage.
In certain situations, a person is held liable for the damages caused by his actions even when the actions are done without any ill intention or negligence on account of equity and justice.
For example,if a person keeps a lion for a pet and despite of all the precautions the lion escapes the cage and kills someone. In this case, the owner of the lion will be liable even though he had no ill intention to cause death and had taken all the precautions to keep the lion in the cage.
This seems just because the damage happened only because he brought a dangerous thing on his property. He was also aware of the consequences if the lion escapes the cage and so he should be made liable if it escapes and causes damage.
This principle of holding a person liable for his actions without any kind of wrong doing on his part is called the principle of absolute liability or no fault liability. This principle was first upheld in the case of Ryland vs Fletcher by the Privy Council in 1868. However, later on some exceptions to this were also established due to which “strict liability” is considered a more appropriate name for this principle. In this case, the defendant hired contractors to build a reservoir over his land for providing water to his mill. While digging, the contractors failed to observe some old disused shafts under the site of the reservoir that lead to plaintiff’s mine on the adjoining land. When water was 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 contractors were. Even so, he was held liable. J Blackburn observed that when a person, for his own purposes, brings 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 causes damage, he must be held liable. He can take the defence that the thing escaped due to an act of the plaintiff or due to vis major (act of God) but since nothing of that sort happened here, then it is unnecessary to inquire what excuse would be sufficient.
To this rule promulgated by J Blackburn, another requirement was added by the Court of Exchequer Chamber, that the use must be a non-natural use of land as was the case in Ryland vs Fletcher itself. For example, growing of regular trees is a natural use but growing poisonous trees is not. Keeping dogs as pet is a natural use but keeping wild beasts is not. Thus, the conditions when this rule will apply are –
- The thing kept must be dangerous – The thing kept on the land must be as such as is likely to cause mischief if it escapes. For example, storing gas or explosives or wild beasts are all likely to cause damage if they escape.
- The thing must escape – If the thing is within the boundary of the defendant’s land, he is not liable. The thing must escape out of his land for him to be liable. In CrowhurstvsAmersham Burial Board 1878, branches of a poisonous tree were hanging outside the land of the defendant. Plaintiff’s cattle ate them and died. Defendant was held liable because protrusion of branches out side his property were considered as escaping from his property. However, in PontingvsNoakes 1994, when the plaintiff’s horse intruded over his boundary and ate poisonous leaves of the defendant’s tree, he was not held liable because there was no escape.
- 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 special purpose because of which it brings additional danger to other. In Noble vs Harrison 1926, a branch of a tree growing on defendant’s land broke and fell on plaintiff’s vehicle. It was held that growing regular trees is not a non natural use of land and the branch fell because of an inherent problem and not because of any negligence of the defendant and so he was not liable.
As mentioned before the following are exceptions or defenses against this rule –
- Plaintiffs own default – If the thing escapes due to plaintiff’s fault the defendant cannot be held liable. In Eastern and South African Telegraph Co. Ltd. v Capetown Tramway Co 1902.the plaintiff’s submarine cable transmissions were disturbed by escape of electric current from defendant’s tramway. It was held that since the current was not causing any problem to regular users and it was causing problem to the cables only because they were too sensitive and so the defendant cannot be held liable. One cannot increase his neighbor’s liabilities by putting his land to special uses.
- Act of God – In circumstances where no human has control over, no one can be held liable. In Nichols vsMarsland 1876, the defendant created artificial lakes to store rainwater. In that particular year, there were exceptionally heavy rains, which caused the embankments to break causing floods, which broke defendant’s bridges. It was held that since there was no negligence on the part of the defendant and the flood happened only because of rains so heavy that nobody could imagine, the defendant was not liable.
- Consent of the plaintiff – If the plaintiff has consented for the accumulation of the dangerous thing, he cannot hold the defendant liable. This is also the case when an activity is done for mutual benefit. For example, A lives on the ground floor and the defendant lives on the floor above A’s. Now, a water tank is built by the defendant to supply water for both of them. The defendant will not be held liable for leakage of water from the tank.
- Act of third party – When a third party, who is not an employee or a servant or a contractor of the defendant is responsible for causing the dangerous thing to escape, the defendant will not be held liable for the damage. In Box vsJubb 1879, the overflow from the defendant’s reservoir was caused by the blocking of a drain by some strangers. The defendant was held not liable. However, if such act can be foreseen, this defence cannot be pleaded because the defendant must take precautions to prevent such an act. In P. Electricity Board vsShail Kumar AIR 2002, a person was killed by a live electric wire lying on the road. SC applied the rule of strict liability and held that the defence of act of stranger is not applicable because snapping of wire can be anticipated and the Electricity Board should have cut off the current as soon as the wire snapped.
- Statutory Authority – When an act is approved by the legislature or is done on the direction of the legislature, it is a valid defence for an action of tort even when the rules of Ryland vs Fletcher apply. However, it is not application when there is negligence.
Position in India
The principle of strict liability is applicable in India as well. For example, Motor Vehicles Act 1938 recognizes no fault liability. Similarly, the liability of a public carrier such as railways has also been increased from that of a bailee to an insurer. However, there has been a deviation in the scope of this rule. Depending on the situation, its scope has been increased as well as decreased by the courts. For example, in Madras Railway Co. vsZamindar 1974, the water collected in a pond for agricultural purposes escaped and caused damage to the railway track and bridges. Here, the application of this rule was restricted because the collection of water in such a way is a necessity in Indian 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.
A landmark case in this respect was the case of M C Mehta vs Union of India AIR 1987. In this case, oleum gas from a fertilizer plant of Shriram Foods and Fertilizers leaked and caused damage to several people and even killed 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 vs Fletcher was a century old and was not sufficient to decide cases as science has advanced a lot in this year. If British laws haven’t progressed, Indian courts are not bound to follow their law and can evolve the laws as per the requirements of the society. It held that an enterprise that engages in dangerous substances has an absolute responsibility to ensure the safety of the common public. It is only the company that can know the consequences of its activities and so it must take all the steps to prevent any accident. If, even after all precautions, accident happens, the company still should be made absolutely liable for the damages.
The reason being that the company has a social obligation to compensate the people who suffered from its activity. SC also laid down that the measure of compensation should depend on the magnitude and capacity of the enterprise so that it can have a deterrent effect.
How can liability in Torts be discharged?
The following are the modes through which liability in Torts can be discharged –
- Death of a party – “Actiopersonalismaritur cum persona” means Personal actions of a person die with the person. But not always. In several cases, the cause of action remains valid even after death of wrongdoer. For example, Workers’ Compensation Act, Fatal Accidents Act, etc.
- Acquiescence – If the party whose right is being violated does not protest and allows the transgression to happen without any restriction.
- Waiver – If the plaintiff starts proceedings for one remedy for example, civil suit, he cannot file another suit under another remedy such as Tortios Suit for the same cause.
- Release – If the plaintiff voluntarily releases the wrongdoer from liability. In England, consideration is must. In India, no consideration is required.
- Accord and Satisfaction – If the parties compromise and settle the dispute.
- Judgement Recovered – “res judicata” – upon the damages awarded by the court.
- Statute of limitation – Suit must be filed within the time frame provided by statutes of limitations.
Remedies that is available in cases of Torts
Judicial Remedies –
- Damages – It is the most important remedy of all.
- Nominal Damages – In cases of Injuria Sine Damnum (Ashby vs White)
- Contemtuous Damages – When plaintiff has suffered a wrong but does not deserve compensation. For example, if the reason for battery was plaintiff’s offensive remarks, judge may think that the plaintiff does not deserve compensation.
- Compensatory, Aggravated, and Exemplary Damages
- Prospective Damages – Compensation for damages that haven’t yet happened but are likely happen because of defendant’s tortious action.
- Injunctions – An injunction is an order of the court directing the doing of some act or restraining the commission or continuance of some act. The court has the discretion to grant or refuse this remedy and when remedy by way of damages is a sufficient relief, injunction may not be granted. It includes temporary and permanent injunction.
- Specific restitution of Property
Extra Judicial Remedies
Besides going to the court for justice, a person, in certain situations, can also have recourse to remedies without going to any court. Such remedies are called extra judicial remedies and are availed by a person by his own strength as self-help. These are –
- Removal of trespasser – A person is entitled to remove the trespasser by force.
- Recaption of chattels (personal belongings) – A person is entitled to take possession of his goods by force.
- Abatement of nuisance – An occupier of a land is permitted to abate any nuisance that is affecting his land.
- Distress Damage feasant – A person has the right to seize goods or cattle that has strayed on his land until compensation is paid.
Remoteness of Damage
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.
Direct Consequence – Provided some damage is foreseeable, liability lies for all the natural and direct consequences flowing from the breach of duty. In Re Polemis  3 KB 560 (CA), stevedores, who were servants of the 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 that the spark could not have been reasonably foreseen, though some damage was foreseeable from the impact. The defendant was found liable because the claimant’s loss was a direct, though not reasonably foreseeable, result.
Reasonable Foreseeability – In the Wagon Mound (No. 1)  AC 388, the defendant carelessly discharged oil from a ship in Sydney Harbour, and the oil floated on the surface of the water towards the claimant’s
wharf. The claimant’s servants, who were welding on the wharf, continued their work after being advised (non-negligently) that it was safe to do so. Sparks from the welding equipment first of all ignited cotton waste mixed up in the oil; then the oil itself caught fire. The claimant sued for destruction of the wharf by fire. The defendant was found not liable in negligence, because it was not reasonably foreseeable that the oil might ignite on water in these circumstances. Damage by fouling was foreseeable; damage by fire (the case here) was not foreseeable. The Privy Council said that in the tort of negligence Re Polemiswas no longer good law and liability would lie only for foreseeable damage of the kind or type in fact suffered by the claimant.
Negligence asa Tort
- MEANING: In everyday usage, the word ‘negligence’ denotes mere carelessness. In legal sense it signifies failure to exercise standard of care which the doer as a reasonable man should have exercised in the circumstances. In general, there is a legal duty to take care when it was reasonably foreseeable that failure to do so was likely to cause injury. Negligence is a mode in which many kinds of harms may be caused by not taking such adequate precautions.
II. DEFINITION:WINFIELD AND JOLOWICZ: According to Winfield and Jolowicz- Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff [Ref. Winfield and Jolowicz on Tort, Ninth Edition, 1971, p. 45].
In Blyth v. Birmingham Water Works Co, (1856) LR 11 Exch. 781; ALDERSON, B. defined negligence as, negligence is the omission to do something which a reasonable man…….. Would do, or doing something which a prudent or reasonable man would not do.
In Lochgelly Iron & Coal Co. v. McMullan, 1934 AC 1; LORD WRIGHT said, negligence means more than headless or careless conduct, whether in commission or omission; it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.
III. ESSENTIALS OF NEGLIGENCE: – In an action for negligence, the plaintiff has to prove the following essentials:
1. DUTY TO TAKE CARE: One of the essential conditions of liability for negligence is that the defendant owed a legal duty towards the plaintiff. The following case laws will throw some light upon this essential element.
In Grant v. Australian Knitting Mills Ltd., 1935 AC 85; the plaintiff purchased two sets of woolen underwear from a retailer and contacted a skin disease by wearing underwear. The woolen underwear contained an excess of sulphates which the manufacturers negligently failed to remove while washing them. The manufacturers were held liable as they failed to perform their duty to take care.
2. DUTY TO WHOM: Donoghue v. Stevenson, 1932 AC 562 carried the idea further and expanded the scope of duty saying that the duty so raised extends to your neighbour. Explaining so as to who is my neighbour LORD ATKIN said that the answer must be “the 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”.
3. DUTY MUST BE TOWARDS THE PLAINTIFF- It is not sufficient that the defendant owed a duty to take care. It must also be established that the defendant owed a duty of care towards the plaintiff.
· In Bourhill v. Young, 1943 AC 92; the plaintiff, a fishwife, alighted from a tram car. While she was being helped in putting her basket on her back, a motor-cyclist after passing the tram collided with a motor car at the distance of 15 yards on the other side of the tram and died instantly. The plaintiff could see neither the deceased nor the accident as the tram was standing between her and the place of accident. She had simply heard about the collision and after the dead body had been removed she went to the place and saw blood left on the road. Consequently, she suffered a nervous shock and gave birth to a still-born child of 8 months. She sued the representatives of the deceased motor-cyclist. It was held that the deceased had no duty of care towards the plaintiff and hence she could not claim damages.
4. BREACH OF DUTY TO TAKE CARE: Yet another essential condition for the liability in negligence is that the plaintiff must prove that the defendant committed a breach of duty to take care or he failed to perform that duty.
In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750; a clock-tower in the heart of the ChandniChowk, Delhi collapsed causing the death of a number of persons. The structure was 80 years old whereas its normal life was 40-45 years. The Municipal Corporation of Dellhi having the control of the structure failed to take care and was therefore, liable.
In Municipal Corporation of Delhi v. Sushila Devi, AIR 1999 SC 1929; a person passing by the road died because of fall of branch of a tree standing on the road, on his head. The Municipal Corporation was held liable.
5. CONSEQUENT DAMAGE OR CONSEQUENTIAL HARM TO THE PLAINTIFF: The last essential requisite for the tort of negligence is that the damage caused to the plaintiff was the result of the breach of the duty. The harm may fall into following classes:-
- physical harm, i.e. harm to body;
• harm to reputation;
• harm to property, i.e. land and buildings and rights and interests pertaining thereto, and his goods;
• economic loss; and
• mental harm or nervous shock.
• In AchutraoHaribhauKhodwa v. State of Maharashtra (1996) 2 SCC 634; a cotton mop was left inside the body by the negligence of the doctor. The doctor was held liable.
- DEFENCES FOR NEGLIGENCE: In an action for negligence following defences are available:-
1. CONTRIBUTORY NEGLIGENCE: It was the Common law rule that anyone who by his own negligence contributed to the injury of which he complains cannot maintain an action against another in respect of it. Because,he will be considered in law to be author of his wrong.Butterfield v. Forrester, (1809) 11 East 60; the defendant had put a pole across a public thoroughfare in Durby, which he had no right to do. The plaintiff was riding that way at 8’O clock in the evening in August, when dusk was coming on, but the obstruction was still visible from a distance of 100 yards; he was riding violently, came against the pole and fell with the horse. It was held that the plaintiff could not claim damages as he was also negligent.
2. ACT OF GOD OR VIS MAJOR: It is such a direct, violent, sudden and irresistible act of nature as could not, by any amount of human foresight have been foreseen or if foreseen, could not by any amount of human care and skill, have been resisted. Such as, storm, extraordinary fall of rain, extraordinary high tide, earth quake etc.
· In Nichols v. Marsland, (1875) LR 10 Ex.255; the defendant had a series of artificial lakes on his land in the construction or maintenance of which there had been no negligence. Owing to an exceptional heavy rain, some of the reservoirs burst and carried away four country bridges. It wa held that, the defendant was not liable as the water escaped by the act of God.
3. INEVITABLE ACCIDENT: Inevitable accident also works as a defence of negligence. An inevitable accident is that which could not possibly, be prevented by the exercise of ordinary care, caution and skill. it means accident physically unavoidable.
- In Brown v. Kendal, (1859) 6 Cussing 292; the plaintiff’s and defendant’s dogs were fighting, while the defendant was trying to separate them, he accidentally hit the plaintiff in his eye who was standing nearby. The injury to the plaintiff was held to be result of inevitable accident and the defendant was not liable.• In Holmes v. Mather, (1875) LR 10 Ex.261, 267; a pair of horses were being driven by the groom of the defendant on a public highway. On account of barking of a dog, the horses started running very fast. The groom made best possible efforts to control them but failed. The horses knocked down the plaintiff who was seriously injured, it was held to be an inevitable accident and the defendant was not liable.
• In Stanley v. Powell, (1891) 1 QB 86; the plaintiff and the defendant, who were members of a shooting party, went for pheasant shooting. The defendant fired at a pheasant, but the shot from his gun glanced off an oak tree and injured the plaintiff. It was held that the accident was an inevitable accident and the defendant was not liable.
Etymologically, tort signifies conduct which is crooked or twisted. This branch of law has received different definitions by different writers though the basis of the definition lays emphasis on the same features which are
- a) Act or omission in violation of law
- b) Legal Injury or legal damage and
- c) Legal remedy by way of unliquidated damages.
Tort law does not contain a documented substantive law but instead is evolved through judicial decisions which are based on English common law principles of justice equity and good conscience and their origin was from the royal writs issued by the chancery.
The tort of trespass is one of the oldest and widest writs; it covers both criminal and civil aspects within its ambit. The Idea of security of person, i.e., freedom from every kind of violence and bodily injury stands at the root of trespass to person.
A person is said to have committed criminal trespass to a person when he is found to be guilty of direct coupled with forcible bodily interference without any consent and a suit is actionable even if no bodily injury has been sustained, as long as a legal right has been violated such action by way of a law suit can be taken.
Therefore in case of criminal trespass there are essentially three ingredients namely a) Direct and forcible bodily intervention b) Without any consent and c) Legal Injury was suffered. The interference is considered to be direct even if a third part intervened in the middle, if the act of such party was involuntary and in apprehension of danger by the defendant. Criminal trespass includes
1) Assault – Assault has been defined as “An attempt or offer to apply force to the person of another directly or indirectly, if the persons making the attempt or offer causes the other to believe on reasonable grounds that he has present ability to execute his purpose.It is the overt act indicating an immediate intention to commit a battery coupled with the capacity of carrying with that intention. Therefore a person can be guilty of assault under the offence of battery but not vice versa. Assault also comes under the purview of the Indian Penal Code i.e. under section 351.
2) Battery – Battery consist of touching another person hostilely or against his will, the aim of battery is to cause grievous hurt to another person. The landmark case of Cole V. Turner laid down the principles of battery being
(i) The least touching of another in anger is battery
(ii) If two or more meet in a narrow passage and without any violence or design of harm, the one touches the other, gently, it will be no battery
(iii) If any of them use violence against the other, to force his way in a rude ordinate manner, it will be a battery ; or any struggle about the passage to that degree as may do hurt, will be a battery. Further it had said that intention must necessarily be considered in case of battery
3) False Imprisonment-This means total restraint on a person’s liberty without any legal justification for imprisonment. This is in direct contravention with not only common law principles but also with the constitution. It is not necessary that the plaintiff beware of the situation he is in for example if he is in a room and asleep, if the door is locked there will be still imprisonment. The most important part of this being that there should be total restraint.
As mentioned earlier there is also civil trespass which essentially consists of trespass of property. It is the wrongful interference with land which is in the possession of the plaintiff. This tort consists of three major ingredients (i) Entering upon land which is in possession of the plaintiff (ii) standing or walking upon such land or (3) Placing or projecting any object upon it without any legal justification. If the defendant even places a foot on the plaintiff’s property unlawfully, it is in law as much a trespass as if he had walked half a mile on it.
Trespass to Land
the tort of trespass can be defined as an unjustifiable physical interference of land in possession of one party by another. Under English common law where these principles of torts emanate, trespass does not form a criminal act but in the Indian Penal Code it has been given recognition i.e. under section 441. But it defines trespass as unjustifiable physical interference with the possession of property of the claimant with requisite intention of doing so. The Intention part is present due to it being under a criminal code where in ‘mensrea’ is a part.
Under English Common Law the maxim that is used for trespass is ‘trespass quareclausamfregit’ which means “because he (the defendant) broke or entered into the close”. The tort of trespass requires essentially only the possession of land by the plaintiff and jut encroachment by some way by the defendant. There requires no force, unlawful intention or damage nor the breaking of an enclosure. The express mention of the word interference is mainly there to imply permission. Permission to encroach onto one’s land can either be obtained by the person in possession or by virtue of authority.
One of the most important ingredients of a tort of trespass is the fact that the land in question which has been encroached upon essentially needs to be in the direct possession of the plaintiff and not just mere physical presence on it. For example it is to be noted that a cause of action in a suit for trespass does not arise in the case where a servant is staying on his master’s property. But a tenant of a property can bring about a cause of action against anyone encroaching onto his property during the period of his lease and even against the lessor if express conditions in the contract empower him to. Lessor –Lesse Relationship
Another essential provision of the tort of trespass includes in the directness of the act. If the act is direct i.e. arising out of the natural consequences of the act of the defendant then it is valid. If the consequences of the act are a result of a remote effect of an act then it is not held to be a valid suit. So if the defendant erects up a tree which leads to growing of branches and boughs and roots onto the land of the claimant then it is not held to be trespass but nuisance. There is a thin line between nuisance and trespass. Trespass is encroachment upon property whereas nuisance is interference upon another’s right to enjoy his property. This is the test to be applied to segregate the tort of trespass from the tort of nuisance. But it is worthy of being noted that directly causing an object to enter onto another’s land does amount to trespass. Therefore if a person’s hounds enter the other’s land and there was requisite intention of making the hounds enter or there was negligence in taking care of the hounds so as to enable them to enter onto another’s land it forms the tort of trespass. Here it should be seen that it is a direct act as either the encouragement or the negligent act of not taking due care of the hounds to enter onto the plaintiff’s land lead to the consequence of trespass. Henceforth it can be ruled out that there was any intervening act.
It is a well known principle that if a person enters upon another’s land and stays on it, the act is connoted as continuing trespass. So either placing gods on the plaintiffs land and not removing them or staying on the plaintiff’s land and not moving way form’s continuing trespass. It was seen in the case of Homes V. Wilson that authorities had constructed a road/bridge and to support such infrastructure had erected buttresses on the plaintiff’s land and had not removed them. The authorities were liable to pay full compensation and had a further action in continuing trespass in which they were held liable. The act of continuing trespass remains until such object or act is removed or stopped respectively.
Furthermore the owner of a land is entitled to the airspace above him but he is aerial trespass has a very important ingredient which is that the object that enters his land aerially should be at such height that it violates his right to enjoy his property and moreover violate his right of ordinary use of his land. Therefore it can be said that an airplane that is passing at a height over the plaintiff’s land cannot for the act of trespass, because it does not violate the plaintiff’ ordinary use of his land.
The subject matter for an action is a notable point. Merely walking on a land possessed by the plaintiff forms a tort as it involves encroaching upon the legal right to own property. The general principle of subject matter was prescribed in the many cases. It was held that anything associated with the soil and which is capable of being possessed individually forms the subject matter in the tort. Therefore if there is any damage incurred upon any object which is associated with the land of the plaintiff an action in trespass may be instituted
There are many remedies to the tort of trespass -:
a) Damages – The claimant is entitled to full reparation for his loss incurred. Generally depreciation in the selling value is an adequate measure for destruction or damage to the subject matter’s in course of the tort of trespass. If there is an adverse effect onto business due to trespass the claimant is entitled to recover the profits which were lost. This is called special damages.
b) Injunctions – These are present for in the case of trespasses to restrain the trespasser. As it was seen in the case of Nelson V. Nicholson where the Plaintiff had resolved a dispute over the boundary with the defendant. In resolving this dispute, it became apparent that the defendant had planted a tree on the plaintiff’s land. The plaintiff filed for a mandatory injunction against D to get the bush removed.
Trespass to Person
English law knows no tort of intention, although it does acknowledge a tort of negligence. The explanation of the paradox is historical. Until The middle of the last century and before the forms of action were abolished, wrong doing was remedied by variants of trespass or case. Liability for intentional conduct was distributed among these two and over the years some form of liability for intention acquired special names, such as assault and battery, etc. That did not happen with careless conduct, which fell under trespass or case depending on whether the resulting harm was direct or consequential.
The tort of trespass then was empowered to encompass the wrongs such as
c) False Imprisonment
The perquisites for these acts all fall under the categories that have been prescribed under The basic principle of this is that there should be a requisite intention to cause harm or there should be a direct intervention of the human body. The tort of trespass to person essentially contains the following ingredients -:
a) Defendant’s State Of Mind – In the case of battery what is crucial, then is to define what is meant by ‘intentional act’. In this context there are two broad possibilities; One that the Defendant intended only to act in the way that he did and secondly the Defendant both intended to act in the way that he did and the resulting contact with the claimant. In most cases there is a distinction here of little consequence. If the Defendant aims a punch at the Claimant and succeeds in striking the latter there is nothing to separate the Claimants act from the outcome of the act. But in some circumstances the Defendant may do a thing without intending a particular outcome. If the Defendant aims his rifle at the claimant, then pulls the trigger, there is no doubt that he intended to shoot the claimant. But if the Defendant aims his rifle at a partridge on a hunting trip but accidentally shoots the Claimant, it is clear that the Defendant intended the act and not necessarily the outcome. In such circumstances it would be probably stretching a tort too far to hold the Defendant liable. And in the case of False Imprisonment the tort should be intentional in the sense that the defendant must intend to do an act which is least substantially certain to effect the confinement. There is no need to show malice. Indeed even there is good faith on the part of the defendant; he may still be liable for the intentional confinement of the claimant. Thus, in R V. Governor ofBrockhillprison,ex P Evans (no 2). A prison governor who calculated the claimant’s day of release in accordance with the law as understood at the time of her conviction was held liable when a subsequent change in the law meant that the prisoner should have been released 59 days earlier.
b) No Consent – This ingredient is not only applicable to false imprisonment but also to battery. The absence of consent is so inherent in the notion of a tortuous invasion of interests in the person that the absence of consent must be established by the claimant. This might at first seem rather odd but any lingering doubt that the onus of proving absence of consent lies on the claimant was laid to rest in Freeman V. Home Office. A prisoner alleged that he had been injected with powerful mood changing drugs against his will. The judge held that since the essence of battery is a specific and un-permitted intrusion on the claimant’s body it is for the claimant to establish that the intrusion was un-permitted. This he Failed to do.
Part of the rationale for this approach is that a contrary result would potentially have posed severe problems for all doctors not just prison medical officers. Any contact with a patient example vaccinations or even examining sore throats with a spatula would prima facie constitute battery. To escape liability the doctor would have to prove consent which would be extremely difficult in cases involving minor procedures where no written consent has been obtained.
- c) Character of the Defendant’s conduct – Assault and battery are similar for the fact that there I use of force but the difference in the two is that in the former that there is an apprehension of contact not necessarily the contact itself, that must be established. When there is battery assault will also exist however not vice versa. There are, however, exceptions; for instance when one is attacked from behind. In most cases assault is a subset of battery. In other words if the defendant intends to commit battery, and the plaintiff apprehends it, it is an assault. In the case of false imprisonment it has been seen that defendant’s conduct plays a role in the fact that there was an intention in the detaining of the person without a reasonable and moreover a lawful reason. An act of the defendant which directly and intentionally (possibly negligently) causes the confinement of the claimant within an area delimited by the defendant.The act of assault is different from the act of battery, though the act of assault is almost a subset of Battery. Assault is the apprehension of the physical interference whereas battery is the commission of such act.
General Defenses to Trespass
The law of trespass is essentially segregated into two halves i.e. the tort for criminal trespass which essentially forms assault and battery
and trespass to property. Each half has its own set of defenses in general. Though a couple of defenses are the same but yet are different.
The tort of trespass can be given a lax in the case of the defenses that have been prescribed.
The Defenses to trespass are
a) Justification – Certain times there is a lawful justification to the encroachment of a person or his land. This justification is backed by a lawful reason which has either been given by statute or by judicial precedent. For example in the case of trespass to land Police officers are permitted to enter land to make an arrest. And if in the case of Criminal trespass a police officer is entitled to cause bodily injury in good faith, in the course of his duties. If a suspect to a crime is pointing a gun at the officer the officer is entitled to use force to apprehend the suspect. There are many forms of justification. There even could be the presence of a license to enter the land of claimant which has been obtained under the law. In such cases the encroachment is valid.
The two general principles in the case of justification are
- a) A justified legal authority encroaching upon a person’s land or using force against a person for lawful reason.
- b) A distinction between an absolute right to do an act and the mere power to do an act. When it is the former it is justified but when it is the latter it is not justified. Entry under a legal process is justifiable.b) Right to Private self defence – Act of defense of oneself falls under the defense used to protect oneself from the liability of criminal trespass. The needs to be a reasonableness in the defendant attitude but the general principle is that the right of private self defence that is exercised is only when the claimant himself is in the wrong and secondly that the force used in exercise of private defence is proportionate to the act that has been done.
After thorough research the researcher comes out with the equivocal view that trespass , be it against a human or his property need to establish the fact that there was common goal i.e. the objective is that there needs to be an intervention with the person’s right to retain land or the fact of maintaining a right to personal dignity.
The tort of trespass can be safely segregated into two halves which being Criminal trespass and trespass to land or property. The principle in the cases of both is the same i.e. there should be a wrongful interference. In the case of Land trespass it is to be noted that though everyone has a right to enjoyment of property one cannot sue for aerial trespass if the trespass is such that it doesnot clash with the ordinary enjoyment of Land. Furthermore in the case of land it is to be seen that if the act is direct or indirect i.e. if the trespass is not the natural consequence of the act done. Then the tort does not apply. Mistake or ignorance is not a remedy to trespass.
The tort of trespass can be continuing in nature, i.e. if a person grows a tree on his land and the branches come onto the defendants land then it can be said that it is a continuing trespass until the time such is severed. In case of the occurrence of such tort remedy by way of Damages or injunctions can be obtained. Injunctions lay a major role in the tort of continuing trespass. The Major defense to such act is the Justification clause
Criminal trespass on the other had looks into the state of mind of the defendant which forms a major part for securing the conviction. It is said that a man intends to do the natural consequences of an act. Henceforth as illustrated by the researcher in the chapters earlier if a person points gun at another and pulls the trigger then it can be seen prima facie that there was intention to shoot the person.
The remedies that are available in such a case are in forms of fines and punishment as such act at least in Indian Law is constituted under the Penal Code. The defenses to such act extend to right to private self defense and lawful justification of the act.
Nuisance: A Tort
The word “nuisance” is derived from the French word “nuire”, which means “to do hurt, or to annoy”. One in possession of a property is entitled as per law to undisturbed enjoyment of it. If someone else’s improper use in his property results into an unlawful interference with his use or enjoyment of that property or of some right over, or in connection with it, we may say that tort of nuisance occurred. In other words, Nuisance is an unlawful interference with a person’s use or enjoyment of land, or of some right over, or in connection with it. Nuisance is an injury to the right of a person in possession of a property to undisturbed enjoyment of it and result from an improper use by another person in his property.
Stephen defined nuisance to be “anything done to the hurt or annoyance of the lands, tenements of another, and not amounting to a trespass.”
According to Salmond, “the wrong of nuisance consists in causing or allowing without lawful justification the escape of any deleterious thing from his land or from elsewhere into land in possession of the plaintiff, e.g. water, smoke, fumes, gas, noise, heat, vibration, electricity, disease, germs, animals”.
DISTNCTION BETWEEN NUISANCE AND TRESSPASS
· Trespass is direct physical interference with the plaintiff’s possession of land through some material or tangible object while nuisance is an injury to some right accessory to possession but no possession itself.
E.g. a right of way or light is an incorporeal right over property not amounting to possession of it, and hence disturbance of it is a nuisance and not trespass.
· Trespass is actionable per se, while nuisance is actionable only on proof of actual damage. It means trespass and nuisance are mutually exclusive.
Simple entry on another’s property without causing him any other injury would be trespass. In nuisance injury to the property of another or interference with his personal comfort or enjoyment of property is necessary.
They may overlap when the injury is to possessory as well as to some right necessary to possession. E.g. trespass of cattle discharge of noxious matter into a stream and ultimately on another’s land.
· To cause a material and tangible loss to an object or to enter another person’s land is trespass and not nuisance; but where the thing is not material and tangible or where though material and tangible, it is not direct act of the defendant but merely consequential on his act, the injury is not trespass but merely a nuisance actionable on proof of actual damage.
If interference is direct, the wrong is trespass, if it is consequential, it amounts to nuisance.
E.g. planting a tree on another’s land is trespass, whereas when one plants a tree over his own land and the roots or branches project into or over the land of another person, act is nuisance.
ESSENTIALS OF NUISANCE
In order that nuisance is actionable tort, it is essential that there should exist:
· wrongful acts;
· damage or loss or inconvenience or annoyance caused to another. Inconvenience or discomfort to be considered must be more than mere delicacy or fastidious and more than producing sensitive personal discomfort or annoyance. Such annoyance or discomfort or inconvenience must be such which the law considers as substantial or material.
In Ushaben v. BhagyalaxmiChitraMandir, AIR 1978 Guj 13, the plaintiffs’-appellants sued the defendants-respondents for a permanent injunction to restrain them from exhibiting the film “Jai SantoshiMaa”. It was contended that exhibition of the film was a nuisance because the plaintiff’s religious feelings were hurt as Goddesses Saraswati, Laxmi and Parvati were defined as jealous and were ridiculed.
It was held that hurt to religious feelings was not an actionable wrong. Moreover the plaintiff’s were free not to see the movie again.
In Halsey v. Esso Petroleum Co. Ltd. (1961) 2 All ER 145:,the defendant’s depot dealt with fuel oil in its light from the chimneys projected from the boiler house, acid smuts containing sulphate were emitted and were visible falling outside the plaintiff’s house. There was proof that the smuts had damaged clothes hung out to dry in the garden of the plaintiff’s house and also paint work of the plaintiff’s car which he kept on the highway outside the door of his house. The depot emanated a pungent and nauseating smell of oil which went beyond a background smell and was more than would affect a sensitive person but the plaintiff had not suffered any injury in health from the smell. During the night there was noise from the boilers which at its peak caused window and doors in the plaintiff’s house to vibrate and prevented the plaintiff’s sleeping. An action was brought by the plaintiff for nuisance by acid smuts, smell and noise.
The defendants were held liable to the plaintiff in respect of emission of acid smuts, noise or smell.
KINDS OF NUISANCE
Nuisance is of two kinds:
· Public Nuisance
Under Section 3 (48) of the General Clauses Act, 1897, the words mean a public nuisance defined by the Indian Penal Code.
Section 268 of the Indian Penal Code, defines it as “an act or illegal omission which causes any common injury, danger or annoyance, to the people in general who dwell, or occupy property, in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.”
Simply speaking, public nuisance is an act affecting the public at large, or some considerable portion of it; and it must interfere with rights which members of the community might otherwise enjoy.
Thus acts which seriously interfere with the health, safety, comfort or convenience of the public generally or which tend to degrade public morals have always been considered public nuisance.
Examples of public nuisance are Carrying on trade which cause offensive smells, Malton Board of Health v. Malton Manure Co., (1879) 4 Ex D 302; Carrying on trade which cause intolerable noises, Lambton v. Mellish, (1894) 3 Ch 163; Keeping an inflammable substance like gunpowder in large quantities, Lister’s case, (1856) 1 D & B 118; Drawing water in a can from a filthy source, Attorney General v. Hornby, (1806) 7 East 195
Public nuisance can only be subject of one action, otherwise a party might be ruined by a million suits. Further, it would give rise to multiplicity of litigation resulting in burdening the judicial system. Generally speaking, Public Nuisance is not a tort and thus does not give rise to civil action.
In the following circumstances, an individual may have a private right of action in respect a public nuisance.
1. He must show a particular injury to himself beyond that which is suffered by the rest of public i.e. he must show that he has suffered some damage more than what the general body of the public had to suffer.
2. Such injury must be direct, not a mere consequential injury; as, where one is obstructed, but another is left open.
3. The injury must be shown to be of a substantial character, not fleeting or evanescent.
In Solatu v. De Held (1851) 2 Sim NS 133, the plaintiff resided in a house next to a Roman Catholic Chapel of which the defendant was the priest and the chapel bell was rung 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.
In Leanse v. Egerton, (1943) 1 KB 323, The plaintiff, while walking on the highway was injured on a Tuesday by glass falling from a window in an unoccupied house belonging to the defendant, the window having been broken in an air raid during the previous Friday night. Owing to the fact that the offices of the defendant’s agents were shut on the Saturday and the Sunday and to the difficulty of getting labour during the week end, no steps to remedy the risk to passersby had been taken until the Monday. The owner had no actual knowledge of the state of the premises.
It was held that the defendant must be presumed to have knowledge of the existence of the nuisance, that he had failed to take reasonable steps to bring it to an end although he had ample time to do so, and that, therefore, he had “continued” it and was liable to the plaintiff.
In Attorney General v. P.Y.A. Quarries, (1957)1 All ER 894:, In an action at the instance of the Attorney General, it was held that the nuisance form vibration causing personal discomfort was sufficiently widespread to amount to a public nuisance and that injunction was rightly granted against the quarry owners restraining them from carrying on their operations.
Thus a suit in respect of a public nuisance may be instituted by any one of the followings:
By the Advocate-General acting ex officio; or
By him at the instance of two or more persons or
by two or more persons with the leave of the Court.
· Private Nuisance
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 affecting its enjoyment by interfering materially with his health, comfort or convenience.
In contrast to public nuisance, private nuisance is an act affecting some particular individual or individuals as distinguished from the public at large. The remedy in an action for private nuisance is a civil action for damages or an injunction or both and not an indictment.
Elements of Private Nuisance
Private nuisance is an unlawful interference and/or annoyance which cause damages to an occupier or owner of land in respect of his enjoyment of the land.
Thus the elements of private nuisance are:
1. unreasonable or unlawful interference;
2. such interference is with the use or enjoyment of land, or some right over, or in connection with the land; and
Nuisance may be with respect to property or personal physical discomfort.
1. Injury to property
In the case of damage to property any sensible injury will be sufficient to support an action.
In St. Helen Smelting Co. v. Tipping, (1865) 77 HCL 642:, the fumes from the defendant’s manufacturing work damaged plaintiff’s trees and shrubs. The Court held that such damages being an injury to property gave rise to a cause of action.
In Ram Raj Singh v. Babulal, AIR 1982 All. 285:, the plaintiff, a doctor, complained that sufficient quantity of dust created by the defendant’s brick powdering mill, enters the consultation room and causes discomfort and inconvenience to the plaintiff and his patients.
The Court held that when it is established that sufficient quantity of dust from brick powdering mill set up near a doctor’s consulting room entered that room and a visible thin red coating on clothes resulted and also that the dust is a public hazard bound to injure the health of persons, it is clear the doctor has proved damage particular to himself. That means he proved special damage.
In Hollywood Silver Fox Farm Ltd v Emmett, (1936) 2 KB 468: A carried on the business of breeding silver foxes on his land. During the breeding season the vixens are very nervous and liable if disturbed, either to refuse to breed, or to miscarry or to kill their young. B, an adjoining landowner, maliciously caused his son to discharge guns on his own land as near as possible to the breeding pens for the purpose of disturbing A’s vixens.
A filed a suit for injunction against B and was successful.
In Dilaware Ltd. v. Westminister City Council, (2001) 4 All ER 737 (HL):, the respondent was owner of a tree growing in the footpath of a highway. The roots of the tree caused cracks in the neighbouring building. The transferee of the building of the building, after the cracks were detected, was held entitled to recover reasonable remedial expenditure in respect of the entire damage from the continuing nuisance caused by the trees.
2. Physical discomfort
In case of physical discomfort there are two essential conditions to be fulfilled:
a. In excess of the natural and ordinary course of enjoyment of the property –
In order to be able to bring an action for nuisance to property the person injured must have either a proprietary or possessory interest in the premises affected by the nuisance.
b. Materially interfering with the ordinary comfort of human existence
The discomfort should be such as an ordinary or average person in the locality and environment would not put up with or tolerate.
Following factors are material in deciding whether the discomfort is substantial:
# its degree or intensity;
# its duration;
# its locality;
# the mode of user of the property.
In Broadbent v. Imperial Gas Co. (1856) 7 De GM & G 436:, an injunction was granted to prevent a gas company from manufacturing gas in such a close proximity to the premises of the plaintiff, a market gardener, and in such a manner as to injure his garden produce by the escape of noxious matter.
In Shots Iron Co. v. Inglis, (1882) 7 App Cas 518: An injunction was granted to prevent a company from carrying on calcining operations in any manner whereby noxious vapours would be discharged, on the pursuer’s land, so as to do damage to his plantations or estate.
In Sanders Clark v. Grosvenor mansions Co. (1900) 16 TLR 428: An injunction was granted to prevent a person from turning a floor underneath a residential flat into a restaurant and thereby causing a nuisance by heat and smell to the occupier of the flat.
In Datta Mal ChiranjiLal v. Lodh Prasad, AIR 1960 All 632: The defendant established an electric flour mill adjacent to the plaintiff’s house in a bazaar locality and the running of the mill produced such noise and vibrations that the plaintiff and his family, did not get peace and freedom from noise to follow their normal avocations during the day. They did not have a quiet rest at night also.
It was held that the running of the mill amounted to a private nuisance which should not be permitted.
In Palmar v. Loder, (1962) CLY 2233: In this case, perpetual injunction was granted to restrain defendant from interfering with plaintiff’s enjoyment of her flat by shouting, banging, laughing, ringing doorbells or otherwise behaving so as to cause a nuisance by noise to her.
In RadheyShiam v. Gur Prasad Sharma, AIR 1978 All 86: It was held by the Allahabad High Court held that a permanent injunction may be issued against the defendant if in a noisy locality there is substantial addition to the noise by introducing flour mill materially affecting the physical comfort of the plaintiff.
In Sturges v. Bridgman (1879) 11 Ch D 852, A confectioner had for upwards of twenty years used, for the purpose of his business, a pestle and mortar in his back premises, which abutted on the garden of a physician, and the noise and vibration were not felt to be a nuisance or complained of until 1873, when the physician erected a consulting room at the end of his garden, and then the noise and vibration, owing to the increased proximity, became a nuisance to him. The question for the consideration of the Court was whether the confectioner had obtained a prescriptive right to make the noise in question.
It was held that he had not, inasmuch as the user was not physically capable of prevention by the owner of the servient tenement, and was not actionable until the date when it became by reason of the increased proximity a nuisance in law, and under these conditions, as the latter had no power of prevention, there was no prescription by the consent or acquiescence of the owner of the servient tenement.
DEFENCES TO NUISANCE
Following are the valid defences to an action for nuisance.It is a valid defence to an action for nuisance that the said nuisance is under the terms of a grant.
A title acquired by use and time, and allowed by Law; as when a man claims anything, because he, his ancestors, or they whose estate he hath, have had possession for the period prescribed by law. This is there in Section 26, Limitation Act & Section 15 Easements Act.
Three things are necessary to establish a right by prescription:
1. Use and occupation or enjoyment;
2. The identity of the thing enjoyed;
3. That it should be adverse to the rights of some other person.
A special defence available in the case of nuisance is prescription if it has been peaceable and openly enjoyed as an easement and as of right without interruption and for twenty years. After a nuisance has been continuously in existence for twenty years prescriptive right to continue it is acquired as an easement appurtenant to the land on which it exists. On the expiration of this period the nuisance becomes legalisedab initio, as if it had been authorised in its commencement by a grant from the owner of servient land. The time runs, not from the day when the cause of the nuisance began but from the day when the nuisance began.
The easement can be acquired only against specific property, not against the entire world.
In Elliotson v. Feetham (1835) 2 Bing NC 134, it was held that a prescriptive right to the exercise of a noisome trade on a particular spot may be established by showing twenty years’ user by the defendant.
In Goldsmid v. Turubridge Wells Improvement Commissioners (1865) LR 1 Eq 161, it was held that no prescriptive right could be obtained to discharge sewage into a stream passing through plaintiff’s land and feeding a lake therein perceptibly increasing quantity.
In Mohini Mohan v. Kashinath Roy, (1909) 13 CWN 1002, it was held that no right to hold kirtan upon another’s land can be acquired as an easement. Such a right may be acquired by custom.
In Sturges v. Bridgman (1879) 11 Ch.D. 852 A had used a certain heavy machinery for his business, for more than 20 years. B, a physician neighbour, constructed a consulting room adjoining A’s house only shortly before the present action and then found himself seriously inconvenienced by the noise of A’s machinery.
B brought an action against A for abatement of the nuisance. It was held that B must succeed. A cannot plead prescription since time runs not from the date when the cause of the nuisance began but from the day when the nuisance began.
· Statutory Authority
Where a statute has authorised the doing of a particular act or the use of land in a particular way, all remedies whether by way of indictment or action, are taken away; provided that every reasonable precaution consistent with the exercise of the statutory powers has been taken. Statutory authority may be either absolute or conditional.
In case of absolute authority, the statute allows the act notwithstanding the fact that it must necessarily cause a nuisance or any other form of injury.
In case of conditional authority the State allows the act to be done only if it can be without causing nuisance or any other form of injury, and thus it calls for the exercise of due care and caution and due regard for private rights.
In Vaughan v. Taff Vale Rly (1860) 5 H.N. 679, The defendants who had authority by Statute to locomotive engines on their railway, were held not liable for a fire caused by the escape of sparks.
In a suit for nuisance it is no defence:
1. Plaintiff came to the nuisance: E.g. if a man knowingly purchases an estate in close proximity to a smelting works his remedy, for a nuisance created by fumes issuing therefrom is not affected. It is not valid defence to say that the plaintiff came to the nuisance.
2. In the case of continuing nuisance, it is no defence that all possible care and skill are being used to prevent the operation complained of from amounting to a nuisance. In an action for nuisance it is no answer to say that the defendant has done everything in his power to prevent its existence.
3. It is no defence that the defendant’s operations would not alone mount to nuisance. E.g. the other factories contribute to the smoke complained of.
4. It is no defence that the defendant is merely making a reasonable use of his own property. No use of property is reasonable which causes substantial discomfort to other persons.
5. That the nuisance complained of although causes damages to the plaintiff as an individual, confers a benefit on the public at large. A nuisance may be the inevitable result of some or other operation that is of undoubted public benefit, but it is an actionable nuisance nonetheless. No consideration of public utility should deprive an individual of his legal rights without compensation.
6. That the place from which the nuisance proceeds is the only place suitable for carrying on the operation complained of. If no place can be found where such a business will not cause a nuisance, then it cannot be carried out at all, except with the consent or acquiescence of adjoining proprietors or under statutory sanction.
REMEDIES FOR NUISANCE
The remedies available for nuisance are as follows:
· Injunction- It maybe a temporary injunction which is granted on an interim basis and that maybe reversed or confirmed. If it’s confirmed, it takes the form of a permanent injunction. However the granting of an injunction is again the discretion of the Court
· Damages- The damages offered to the aggrieved party could be nominal damages i.e. damages just to recognize that technically some harm has been caused to plaintiff or statutory damages i.e. where the amount of damages is as decided by the statute and not dependent on the harm suffered by the plaintiff or exemplary damages i.e. where the purpose of paying the damages is not compensating the plaintiff, but to deter the wrongdoer from repeating the wrong committed by him.
· Abatement- It means the summary remedy or removal of a nuisance by the party injured without having recourse to legal proceedings. It is not a remedy which the law favors and is not usually advisable. E.g. – The plaintiff himself cuts off the branch of tree of the defendant which hangs over his premises and causes nuisance to him.
The law of nuisance is almost an uncodified one. Yet it has grown and expanded through interpretation and through a plethora of judgments. The concept of nuisance is one that arises most commonly in a man’s daily life and the decision regarding the same has to be delivered on a case to case base ensuring that neither the aggrieved plaintiff goes back uncompensated nor the defendant is punished unnecessarily. Indian Courts in the matters of nuisance have borrowed quite intensively from the English principles as well as from the decisions of the common law system along with creating their own precedents. This has resulted in a sound system of law being developed that ensures fairness and well being of all i.e. the parties and the society at large.
There is always a delicate balance between one person’s right to freedom of speech and another’s right to protect their good name. It is often difficult to know which personal remarks are proper and which run afoul of defamation law.
The term “defamation” is an all-encompassing term that covers any statement that hurts someone’s reputation. If the statement is made in writing and published, the defamation is called “libel.” If the hurtful statement is spoken, the statement is “slander.” The government can’t imprison someone for making a defamatory statement since it is not a crime. Instead, defamation is considered to be a civil wrong, or a tort. A person that has suffered a defamatory statement may sue the person that made the statement under defamation law.
Defamation law, for as long as it has been in existence in the United States, has had to walk a fine line between the right to freedom of speech and the right of a person to avoid defamation. On one hand, people should be free to talk about their experiences in a truthful manner without fear of a lawsuit if they say something mean, but true, about someone else. On the other hand, people have a right to not have false statements made that will damage their reputation. Discourse is essential to a free society, and the more open and honest the discourse, the better for society.
Elements of a Defamation Lawsuit
Defamation law changes as you cross state borders, but there are normally some accepted standards that make laws similar no matter where you are. If you think that you have been the victim of some defamatory statement, whether slander or libel, then you will need to file a lawsuit in order to recover. Generally speaking, in order to win your lawsuit, you must show that:
- Someone made a statement;
- that statement was published;
- the statement caused you injury;
- the statement was false; and
- The statement did not fall into a privileged category.
To get a better grasp of what you will need to do to win your defamation lawsuit, let’s look at each element more closely.
The Statement — A “statement” needs to be spoken, written, or otherwise expressed in some manner. Because the spoken word often fades more quickly from memory, slander is often considered less harmful than libel.
Publication — For a statement to be published, a third party must have seen, heard or read the defamatory statement. A third party is someone apart from the person making the statement and the subject of the statement. Unlike the traditional meaning of the word “published,” a defamatory statement does not need to be printed in a book. Rather, if the statement is heard over the television or seen scrawled on someone’s door, it is considered to be published.
Injury — To succeed in a defamation lawsuit, the statement must be shown to have caused injury to the subject of the statement. This means that the statement must have hurt the reputation of the subject of the statement. As an example, a statement has caused injury if the subject of the statement lost work as a result of the statement.
Falsity — Defamation law will only consider statements defamatory if they are, in fact, false. A true statement, no matter how harmful, is not considered defamation. In addition, because of their nature, statements of opinion are not considered false because they are subjective to the speaker.
Unprivileged — Lastly, in order for a statement to be defamatory, it must be unprivileged. Lawmakers have decided that you cannot sue for defamation in certain instances when a statement is considered privileged. For example, when a witness testifies at trial and makes a statement that is both false and injurious, the witness will be immune to a lawsuit for defamation because the act of testifying at trial is privileged.
Whether a statement is privileged or unprivileged is a policy decision that rests on the shoulders of lawmakers. The lawmakers must weigh the need to avoid defamation against the importance that the person making the statement has the free ability to say what they want.
Witnesses on the stand at trial are a prime example. When a witness is giving his testimony, we, as a society, want to ensure that the witness gives a full account of everything without holding back for fear of saying something defamatory. Likewise, lawmakers themselves are immune from defamation suits resulting from statements made in legislative chamber or in official materials.
Social Media and Defamation
With the rise of social media, it’s now easier than ever to make a defamatory statement. That’s because social media services like Twitter and Facebook allow you to instantly “publish” a statement that can reach thousands of people. Whether it’s a disparaging blog post, Facebook status update, or YouTube video, online defamation is treated the same way as more traditional forms. That means you can be sued for any defamatory statements you post online.
Higher Burdens for Defamation — Public Officials and Figures
Our government places a high priority on the public being allowed to speak their mind about elected officials as well as other public figures. People in the public eye get less protection from defamatory statements and face a higher burden when attempting to win a defamation lawsuit.
When an official is criticized in a false and injurious way for something that relates to their behavior in office, the official must prove all of the above elements associated with normal defamation, and must also show that the statement was made with “actual malice.”
“Actual malice” was defined in a Supreme Court case decided in 1988, Hustler v. Falwell. In that case, the court held that certain statements that would otherwise be defamatory were protected by the First Amendment of the United States Constitution. The court reasoned that the United States society had a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”
This meant, according to the Court, that public officials could only win a defamation suit when the statement that was made was not an honest mistake and was in fact published with the actual intent to harm the public figure. According to the Court, actual malice only occurs when the person making the statement knew the statement was not true at the time he made it, or had reckless disregard for whether it was true or not.
For other people that are in the public eye, but not public officials, the defamation laws are also different. These people, such as celebrities and movie stars, must also prove, in most situations, that the defamatory statements were made with actual malice.
Freedom of speech is less meaningful when a statement is made about a private individual because the statement is probably not about a matter of public importance. As noted above, a private person has no need to show that the statement maker acted with actual malice in order to be victorious in their defamation lawsuit
CONSUMER PROTECTION ACT
Making money quickly is a very tempting proposition. Businesses, companies, shopkeepers, retailers, and sellers are all interested in maximizing their profits. In doing so, very often they neglect the best interests of the buyer. Many times, a buy gets a defective product, or a product that fails to perform as promised. Besides losing money put in purchasing a product, sometimes, due to defects in the product, the buyer is injured as well. In all such cases, there is a violation of a legal right of the buyer and he is entitled to sue the seller.
Before enactment of the Consumer Protection Act, 1986, filing a civil suit for damages was the only option available to an aggrieved buyer. However, such a suit is very expensive and time consuming, because of which, buyers were not able to use this mechanism for relatively smaller amounts. This gave a field day to the traders because making substandard products or not delivering on promises was a cheap option to make quick money, after all, very few buyers would go to court. A common man was completely helpless because of no control and penalty over unscrupulous sellers.
In this background, the CPA 1986 gave power in the hands of the buyer by allowing an easier and cheaper way to redress their grievances, thereby holding the sellers accountable for their actions more often. It provides redress to a consumer when the purchased product is defective or when there is a deficiency in service.
The following are aims and objectives of this act –
- The most important objective of this act is to provide a fast and cheap way for consumers to hold the sellers accountable for their products or services.
- Justice to consumers.
- Protection of consumers from fraudsters or companies selling substandard products and services.
- Penalty to sellers for substandard product or service.
- Check on sellers and service providers.
Besides the above objectives, Section 6 of CPA 1986 also provides certain rights as objectives to the consumers. These are –
- Right to be protected against goods that are hazardous or dangerous to life and property.
- Right to be informed about the quality, quantity, potency, purity, standard and price or a product and service.
- Right to competitive pricing.
- Right to be heard and to be assured that consumer interest will receive due consideration at appropriate forum.
- Right to redressal against unfair trade practices and exploitation of consumers.
- Right to consumer education.
It is a complete code in the sense that it provides complete details of the constitution and jurisdiction of the commission and procedure for filing the complaint and appealing the decision. It does not depend on CPC and the cases can be finalized completely under this act. In fact, as held in Ansal Properties vs Chandra BhanKohli 1991, Consumer Disputes Redressal Agencies provide complete machinery for justice including a final appeal to the Supreme Court and so are outside the scope of High Courts and HCs can’t entertain writ petitions against their judgments.
Under Section 9 of this act, three agencies are established to hear consumer complaints –
- A Consumer Disputes Redressal Forum in each district (For amounts up to 20 Lakhs)
- A Consumer Disputes Redressal Commission in each state. (For amounts from 20 Lakhs to 1 Cr)
- A National Consumer Disputes Redressal Commission in the center. (For amounts above 1 cr)
District ForumComposition (Section 10)
1. Each District Forum shall consist of –
- A person who is, or who has been or is qualified to be, a District Judge, who shall be its President
- two other members, one of whom shall be a woman, who shall have the following qualifications, namely –
- be not less than thirty-five years of age,
- posses a bachelor’s degree from a recognized university,
- be persons of ability, integrity and standing,
- and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs, or administration
1-A. Every appointment under sub-section (1) shall be made by the State Government on the recommendation of selection Committee consisting of the following namely:
- The President of the State Commission – Chairman,
- Secretary, Law Department of the State – Member,
- Secretary, in charge, of the Department dealing with Consumer affairs in the State – Member.
- Every member of the District Forum shall hold office for a term of five years or up to the age of sixty-five years/ whichever is earlier:3. The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the District Forum shall be such as may be prescribed by the State Government.
Jurisdiction (Section 11)
- Pecuniary Jurisdiction – Subject to other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the Compensation if any, claimed does not exceed rupees twenty lakhs.
- Territorial Jurisdiction – A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, –
- The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office, or] personally works for gain or
- Any of the opposite parties where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally works for gain, as the case may be, acquiesce in such institution; or
- The cause of action, wholly or in part arises.
For a complaint to lie in a district forum, at least a part of the transaction of the actual business must have occurred in that district. In National Insurance Co vs Sonic Surgical 2003, a fire accident took place in Ambala and a part of the claim was partly processed in Chandigarh. It was held that merely processing of claim in one place does not form a ground to file a case in that district.
Functioning of a District Forum
Who can file a complaint (Section 12)
The following can file a complaint –
- The consumer to whom the goods or services have been sold or are agreed to be sold.
- Any recognized consumer association even if the consumer is not a member of the association. Recognized means any voluntary association registered under Companies Act 1956 or any other law for the time being in force.
- One or more consumers, where there are numerous consumers all having same interest, with the permission of district forum.
- The state or central government.
The complaint must be accompanied with such amount of fee and payable in such manner as may be prescribed.
The forum may accept or reject the complaint. The complainant must be given an opportunity to be heard before rejection. The acceptance or rejection will be decided in 21 days.
Procedure on admission of complaint (Section 13)
Upon acceptance of the complaint, the forum will send a copy to the opposite party within 21 days, who has to respond with his version of the complaint within 30 days (extendable by 15 days). Upon receipt of the response, the forum will give its decision. If no response is received, the forum will give and ex parte decision. An effort will be made by the forum to make a decision within 3 months of date of receipt of notice by the opposite party where no goods testing needs to be done or within 5 months otherwise.
Powers (Findings) of District Forum (Section 14)
If, after conducting the procedure in Section 13, the forum finds that there was a defect in the product or a deficiency in service or that any of the allegations in the complaint are true, it can ask the opposite party to do any of the following –
- To remove the defect pointed out by an appropriate laboratory from the goods in questions.
- To replace the goods with new goods of similar description this shall be free from any defect.
- To return to the complainant the price or as the case may be, the charges paid by the complainant.
- To pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.
- To discontinue the unfair trade practice or restrictive trade practice or not to repeat it.
- Not to offer the hazardous product for sale.
- To cease manufacture of hazardous goods and to desist from offering services that is hazardous.
- When injury has been suffered by May customer who are not easily identifiable, the opposite party may be required to pay such sum as the forum deems fit.
- To issue any corrective advertisement to neutralize the effect of any misleading advertisement.
- To provide adequate costs to parties.
The District Forum also has the power to grant punitive damages in such circumstances as it deems fit.
The forum must take into account all the evidence and the documents produced by the parties and the order of the 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 not discuss the evidence or the documents submitted before it and thus it was held that the order was unjust and fit to be set aside.
Provisions for Appeal (Section 15)
From District Forum to State Commission (Section 15)
Any person aggrieved by an order by the District Forum may prefer an appeal against such order to the State Commission within a period of 30 days from the date of the order. The state commission may entertain an appeal after 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 period. With the appeal, the appellant must deposit 50% of the amount that he is required to pay or 25000/- (whichever is less).
From State Commission to National Commission (Section 19)
Any person aggrieved by an order by the State Commission may prefer an appeal against such order to the National Commission within a period of 30 days from the date of the order. The commission may entertain an appeal after 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 period. With the appeal, the appellant must deposit 50% of the amount that he is required to pay or 35000/- (whichever is less).
As per section 19-A, appeal to the State Commission or the National Commission shall be heard as expeditiously as possible and an effort shall be made to dispose off the appeal within a period of 90 days from the date of admission. If the appeal is disposed of after this time, the commission shall state the reasons for the delay.
From National Commission to Supreme Court(Section 23)
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 days from the date of the order. Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.
Provided Further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person had deposited in the prescribed manner fifty per cent. Of that amount or rupees fifty thousand, whichever is less.]
Composition (Section 16)
1. Each State Commission shall consist of –
a. a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President :
Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of the High Court;
b. two other members, who shall be persons of ability, integrity and standing and have adequate knowledge or experience of, or have shown capacity in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman :
Provided that every appointment made under this clause shall be made by the State Government on the recommendation of a selection committee consisting of the following, namely :-
(i) President of the State Commission – Chairman,
(ii) Secretary of the Law Department of the State – Member,
(iii) Secretary, in charge of Department dealing with consumer affairs in the State – Member.
2. The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the State Commission shall be such as may be prescribed by the State Government.
3. Every member of the State Commission shall hold office for a term of five years or up to the age of sixty-seven years, whichever is earlier and shall not be eligible for re-appointment.
4. Notwithstanding anything contained in sub-section (3), a person appointed as a President or as a member before the commencement of the Consumer Protection (Amendment) Act, 1993, shall continue to hold such office as President or member, as the case may be, till the completion of his term.
Jurisdiction (Section 17)
- Pecuniary Jurisdiction – Subject to other provisions of this Act, the State Commission shall have jurisdiction to entertain complaints where the value of the goods or services and the Compensation, if any, claimed exceeds rupees 20 lakhs but does not exceed rupees 1 crore.
- 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 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.
Procedure (Section 18)
The provisions of sections 12, 13 and 14 and the rules made there under for the disposal of complaints by the District Forum shall, with such modifications as may be necessary, be applicable to the disposal of disputes by the State Commission.
Composition (Section 20)
- The National Commission shall consist of-
a. a person who is or has been a Judge of the Supreme Court, to be appointed by the Central Government, who shall be its President
Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of India
b. not less than four, and not more than such number of members, as may be prescribed, and one of whom shall be a woman, who shall have the following qualifications, namely:-
(i) be not less than thirty-five years of age;
(ii) possess a bachelor’s degree from a recognized university; and
(iii) be persons of ability, integrity and standing and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration:
Provided that not more than fifty per cent, of the members shall be from amongst the persons having a judicial background
Provided also that every appointment under this clause shall be made by I. Central Government on the recommendation of a Selection Committee consisting the following, namely:-
(a) a person who is a Judge of the Supreme Court, to be nominated by the Chief Justice of India – Chairman:
(b) the Secretary in the Department of Legal Affairs in the Government of India – Member;
(c) Secretary of the Department dealing with consumer affairs in the Government of India – Member;
Jurisdiction (Section 21)
Subject to the other provisions of this Act, the National Commission shall have jurisdiction –
(a) to entertain –
(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs; and
(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 decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
Power and Procedure (Section 22)
The National Commission shall, in the disposal of any complaints or any proceedings before it, have –
(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 clauses (a) to (i) of sub-section (1) of section14, and follow such procedure as may be prescribed by the Central Government.
Section 22A.Power to set aside ex parte orders – Where an order is passed by the National Commission ex parte against the Opposite party or a complainant, as the case may be, the aggrieved party may apply to the Commission to set aside the said order in the interest of justice.
Section 22B. Transfer of cases – On the application of the complainant or of its own motion, the National Commission may, at any stage of the proceeding, in the interest of justice, transfer any complaint pending before the District Forum of one State to a District Forum of another State or before one State Commission to another State Commission
Who is Consumer?
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 any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person wo avails of such services for any commercial purpose;
Based on this definition, the following are essential elements of a Consumer –
1. Buys goods or Hires Services – Physical products such as Car, TV, Utensils etc as well as intangible services ranging from Hair Cutting Saloon to Banking etc. are both valid purchases for being a consumer. The scope of services is quite wide and more and more things are coming into its ambit slowly. For example, 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.
2. For consideration – To be a consumer, paying consideration is a must. However, consideration may be an 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 of services, exchange or barter is also valid. In Motor Sales & Service vsRenji Sebastian 1991, the complainant 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.
3. For personal Use – The goods or service must be bought for personal use. Originally, a person who bought a product or a service for commercial use was not considered a consumer but after the amendment in 1993, use of such goods for making a livelihood is accepted. Thus, a self employed person who buys a Photocopy machine for his own shop is a consumer. However, goods must not be bought for resale.
In Anant Raj Agenciesvs 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 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 user. Anybody who uses the goods or services with due permission of the purchaser, is also a consumer. Thus, in a landmark case of Spring Meadows Hospital vsHarjot Ahluwalia AIR 1998, SC held that the parents of the child who was treated by the hospital were hirers of the service while the child was the beneficiary and thus both were consumers.
What is a Service?
As per Section 2 (1) (o) “Services” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, Financing insurance, transport, 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 anything 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 vsMrs 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 vsVinodKarkare 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.