Defamation

Definition :
Defamation is a legal term that refers to any statement or communication
that harms the reputation of a person, business, or organization.
Defamation can be divided into two categories: (a) libel and (b) slander.
Libel is a written or published defamatory statement, while slander is an
oral defamatory statement.

Innuendo : Innuendo is a legal concept used in tort to describe defamation in

lawsuits. It's used to show that a statement was defamatory even though it
may not be obvious on the surface. Innuendo is often used to explain how a
statement was intended to be understood by the plaintiff, or how it relates to
them.

Essential Elements of Defamation:

[Link] statement must be false: The plaintiff must prove that the
statement made about them is false. If the statement is true, then it cannot
be defamatory

[Link] statement must be communicated to a third party: The plaintiff

must prove that the defamatory statement was communicated to at least
one other person, either orally or in writing.

[Link] statement must harm the reputation of the plaintiff: The plaintiff
must prove that the defamatory statement caused them to suffer harm to
their reputation, either by damaging their standing in the community,
causing them to lose business or employment opportunities, or otherwise
causing them to suffer emotional distress.

[Link] statement must be made with fault or negligence: The plaintiff

must prove that the defendant knew or should have known that the
statement was false or defTruthamatory, and that they made the statement
with reckless disregard for the truth.

Defenses:

[Link]: if the defendant can prove that the statement was true, then they
cannot be held liable for defamation.

[Link] comment: Nothing is defamatory which is a fair comment in the

matter of public interest. The defendant can avail this defence when he has
merely made a fair comment in a matter of public interest.

[Link]: allows individuals to make statements without fear of liability in

certain contexts:
Absolute privileges : The defendant can avail this defence even when he
has made the false and defamatory statement deliberately and
[Link] can be used as a defence in the Parliamentary, judicial
proceedings.
Qualified Privileges : The defendant can avail this defence when he made
the false and defamatory statement deliberately, but without [Link] can
be used as a defence in the communications made in the course of legal,
social or moral duty

Cases on Defamation:

Subramanian Swamy v. Union of India: The Supreme Court held that

truth is a defense against defamation claims and that public figures have a
higher burden of proof to prove that a statement is defamatory.

Cassidy v. Daily Mirror Newspaper Ltd: Mr. Cassidy didn’t share a house
with his wife but he visited her occasionally. The newspaper published his
picture stating that his engagement had been fixed with a certain woman.
This was held to be defamatory as it reflected poorly on Mr. Cassidy’s wife
by insinuating that she was perhaps his mistress. The Court held that the
innuendo had been established and the innocence of the defendant was
not a valid defence.

Dixon v. Holden: Defamation, in this case, was defined as an injury to a

man’s reputation. The Court stated that, “A man’s reputation is his property,
and if, possible, more valuable, than other property”.

Trespass to Land & Goods.

Wrongful intervention of one over the property or goods belonging to
another without any lawful justification is called as trespass to land or
trespass to goods.

In the case of Basely v. Clarkson, the defendant cut the grass on his land
and mistakenly he crossed the boundary and did same on the land of the
neighbour. In the instant case the defendant’s plea of mistake in claiming
trespass to land was rejected. It is because his act was not unintentional
though he committed a mistake regarding the presence of the boundary.
However it would not amount to trespass if the entry proved to be
involuntary.
In the case of Smith v. Stone, the person was thrown into the land of the
plaintiff. Since his entry was not intentional therefore his act did not amount
to trespass.

Trespass by Animals:
The livestock keepers are responsible for any damage caused by their
animals on the land of another person. They are also liable even in the
case their cattle trespasses on their own. The Cattle Trespass Act, 1871
looks into in this matter in India.

Trespass ab initio
A person who has legally entered into the premises of a person commits
trespass after his right to enter has came to an end. His act would make his
original entry tortuous and such person would be held liable for
reimbursement not only for the entry but for all subsequent acts. Such
trespass is termed as trespass ab initio. In the case of Minister of Health,
it was held that a licensee, whose license has expired, can be prosecuted
for trespassing if upon request he does not vacate the premises in a
reasonable time.

Remedies to Trespass against Property

The person whose possession rights of land are infringed can bring a suit
for trespass against the tortfeasor. He may also secure his or her
possession against a trespasser using reasonable amount of force.
1)Damages: damages can be procured from the defendant if significant
losses have been suffered as a result of such trespass. However, a nominal
compensation is generally granted if no injury is suffered.

2)Injunction: Sometimes the plaintiff does not ask for compensation but
seeks an injunction from the court to prevent continuing or future trespass.
This injunction, for example, can be in the form of removal of a tree
belonging to the defendant.

Defences against Trespass to Property

1)Consent: The act of intervention into the land or goods would not
amount to trespass if the possessor gives consent to the plaintiff voluntarily.
In other words, the consensual act of intervention would amount to
trespass if such consent was induced by fraud, intoxication or an
incompetent person.

2)Public Necessity: When a person intentionally goes into the property of

other person for the sake of protecting the community from an immediate
and imperative harm, then such interference would not be considered
trespass. In the case of Esso Petroleum Co v Southport Corporation,
the captain of a ship committed trespass by letting oil to flood a shoreline. It
was necessary to protect his ship and crew members. Since this was a
necessity, the defence of public necessity was accepted. However this
defence would not be granted when the person had alternative courses of
action.

3)Justification by Law: It is a defence in those situations where a person

is permitted to enter into the premises of someone by the way of Statute or
law of the land. For example police officers, income tax officers etc.

Deceit
Deceit is a legal claim that occurs when a person intentionally deceives
another person, causing them to act in a way that results in damage.
The elements of the tort of deceit are:

1)False representation: The defendant made a false statement

2)Knowledge of falsity: The defendant knew the statement was false, or

was reckless about its truth

3)Intention to deceive: The defendant intended to mislead or trick the

plaintiff

4)Reliance: The plaintiff reasonably relied on the false statement and acted
on it to their detriment

5)Loss: The plaintiff suffered loss as a result

Tort

Word ‘Tort” has been derived from Latin term ‘tortum’ which means ‘to twist .

The person committing tort or wrong is called a tort-feasor or wrong doer, and his misdoing
is a tortious act.

The principal aim of the law of torts is compensation of victims or their dependants.

Definition

Salmond definition -

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

Winfield definition –

“Tortious liability arises from the breach of a duty primarily fixed by law, this duty is towards
persons generally and its breach is redressable by an action for unliquidated damages.”

Difference between Tort and crime-

Tort

• Civil wrong
• Involves a private dispute
• Compensation for damages is sought
• Liability is determined based on negligence
• Does not require criminal intent.
• Parties involved are the victim and wrongdoer.
• Examples: negligence, defamation, breach of contract.

Crime
 • Involves a violation of public law.
• Involves a violation of public law.
• Punishment is imposed by the state.
• Liability is determined beyond a reasonable doubt.
• Requires a guilty mind (mens rea).
• Parties involved are the state and the accused.
• Examples: theft, assault, murder.

Tort and contract

Tort

• An unfair act or omission that causes harm to another person or piece of property is
called a tort.
• Claims for civil wrongs.
• Duty of care, breach of duty, causation, damages.
• Fault-based liability
• Remedies are Monetary damages, injunctions, other equitable relief.

Contract

• Enforce promises made between two or more parties.

• Claims for breach of contract.
• Offer, acceptance, consideration, mutual intent.
• Strict or fault-based liability.
• Remedies are Damages, specific performance, injunctions.

Foundation of tortuous liability

Tortious liability is a legal obligation of one party to a victim as a results of a civil wrong or
injury. This action requires some form of remedy from a court system.

Tortious liability arises from the breach of a duty primarily fixed by law this duty is towards
persons generally and its breach is redressible by an action for unliquidated damages.
There are different opinions among the jurist as to what constitute to the foundation of
tortious liability, the following are theories arguing about the foundation of tortious
liability:-

There are two theories with regard to the basic principle of liability in the law of torts or tort.
They are:

• Wider and narrower theory-all injuries done by one person to another are torts,
unless there is some justification recognized by law.
• Pigeon-hole theory- there is a definite number of torts outside which liability in tort
does not exist.

Essential conditions of liability in tort

To constitute tort, there must be:

• a wrongful act or omission of the defendant;

• the wrongful act must result in causing legal damage to another; and

• the wrongful act must be of such a nature as to give rise to a legal remedy.

(i) Wrongful act:

The act complained of, should under the circumstances, be legally wrongful as regards the
party complaining. Thus, every person whose legal rights, e.g., right of reputation, right of
bodily safety and freedom, and right to property are violated without legal excuse, has a
right of action against the person who violated them,Whether loss results from such
violation or not.

(ii) Legal damages:

It is not every damage that is a damage in the eye of the law. It must be a damage which the
law recognizes as such. In other words, there should be legal injury or Invasion of the legal
right. In the absence of an infringement of a legal right, an action does not lie. Also, where
there is infringement of a legal right, an action lies even though no damage may have been
caused.

Two maxims, namely:

• Damnum sine injuria, and

• Injuria sine damnum.

Damnum Sine Injuria

Damnum means harm, loss or damage in respect of money, comfort, health, etc. Injuria
means infringement of a right conferred by law on the plaintiff. The maxim means that in a
given case, a man may have suffered damage and yet have no action in tort, because the

damage is not to an interest protected by the law of torts. Therefore, causing damage,
however substantial to another person is not actionable in law unless there is also a
Violation of a legal right of the plaintiff.

Injuria Sine Damnum

It means injury without damage, i.e., where there is no damage resulted yet it is an injury or
wrong in tort, i.e. where there is infringement of a legal right not resulting in harm but
Plaintiff can still sue in tort. Some rights or interests are so important that their violation is
an actionable tort without proof of damage. Thus when there is an invasion of an “absolute”
private right of an individual, there is an injuria and the plaintiff’s action will succeed even if
there is no Damnum or damages.

(iii) Legal remedy:

This means that to constitute a tort, the wrongful act must come under the law. The main
remedy for a tort is an action for unliquidated damages. Some other remedies i.e.
Injunction, Damages or Specific Restitution may also be claimed.

Mens Rea

The General principle lies in the maxim “actus non facit reum nisi mens sit rea” i.e. the act
itself creates no guilt in the absence of a guilty mind. It does not mean that for the law or
Torts, the act must be done with an evil motive, but simply means that mind must concur in
the Act, the act must be done either with wrongful intention or negligence. However, to this
principle cases of absolute or strict liability are exceptions.

General Defences in Law of Torts

The defences available in torts are given as follows:

• Volenti non fit injuria or the defence of ‘Consent’

• The wrongdoer is the plaintiff
• Inevitable accident
• Act of god
• Private defence
• Mistake
• Necessity
• Statutory authority

A. Volenti non fit injuria

The defence of volenti non fit injuria means that the plaintiff has voluntarily assumed the
risk of injury or harm. The defendant can argue that the plaintiff was aware of the risk
involved in the activity and willingly accepted it, and therefore, cannot claim damages for
any harm suffered as a result.

Case law:- Hall v. Brooklands Auto Racing Club

B. Plaintiff the wrongdoer

There is a maxim “Ex turpi causa non oritur actio” which says that “from an immoral cause,
no action [Link] defence of plaintiff the wrongdoer means that the plaintiff was also
responsible for the harm or injury suffered. The defendant can argue that the plaintiff’s
actions contributed to the harm suffered, and therefore, they should not be held solely
liable for the damages.

Case law:- Bird v. Holbrook

C. Inevitable accident
The defence of inevitable accident means that the harm or injury suffered was not
preventable. The defendant can argue that the harm or injury was due to unforeseeable
circumstances, and therefore, they should not be held liable for it.

Case law:- Stanley v. Powell

D. Act of God

The defence of an act of God means that the harm or injury suffered was due to natural
events beyond human control. The defendant can argue that the harm or injury was caused
by an act of God, and therefore, they should not be held liable for it.

Case law:- Kallu Lal v. Hemchand

E. Private defence

The defence of private defence means that the defendant acted in self-defence or defence
of another person or property. The defendant can argue that their actions were necessary
to protect themselves or others from harm or injury.

Case law:-Bird v. Holbrook

F. Mistake

The defence of mistake means that the defendant made an honest mistake and did not
intend to cause harm or injury. The defendant can argue that they did not have the required
knowledge or information to act differently.

Case law:-Morrison v. Ritchie & Co

G. Necessity

The defence of necessity means that the defendant’s actions were necessary to prevent a
greater harm or injury. The defendant can argue that their actions were necessary under the
circumstances to prevent harm or injury to themselves or others.

Case law :-Carter v. Thomas

 H. Statutory authority

The defence of statutory authority means that the defendant was acting under the authority
of a statute. The defendant can argue that their actions were permitted by law, and
therefore, they should not be held liable for any harm or injury caused.

Case law:-Smith v. London and South Western Railway Co.

Master and Servant

The liability of the master for the tort which has been committed by his servant is based on
the maxim – ‘respondent superior’ i.e., superior is responsible. In the law, it is established
that he who employees another to do something does it himself or he who does an act
through another is deemed in law to do it himself.

In a master-servant relationship, the Master is the employer and the Servant is an

employee. A servant works on the command given by his Master. Then particular relation
exists between them and in this situation, torts commit by Servant then Master will also be
held liable.

Servants can be distinguished from other kinds of agents by reference to the degree of
control exercised, or exercisable, over him by his master.

There are two maxims on which the liability of Master is based:

Qui facit per alium facit per se:- It means that “the act of servant is the act of master.”

Example: If A is the car owner and he keep B to drive the car for trade if any accident
happens by B, A will be liable for that accident.

Respondent Superior:- It means that the superior should be held responsible for the acts
done by his subordinate.

The above two maxims have played a significant role in the development of the vicarious
liability of Master.

VICARIOUS LIABILITY
Normally, the tortfeasor is liable for his tort. But in some cases a person may be held liable
for the tort committed by another. A master is vicariously liable for the tort of his servant,
Principal for the tort of his agent and partners for the tort of a partner. This is know as
Vicarious liability in tort. The common examples of such a liability are:

a) Principal and Agent [Specific authority]

Qui facit per alium facit per se – He who acts through another is acting himself, so that the
act of the agent is the act of the principal. When an agent commits a tort in the ordinary
course of his duties as an agent, the principal is liable for the same.

In Lloyd v. Grace, Smith & Co., the managing clerk of a firm of solicitors, while acting in the
ordinary course of business committed fraud, against a lady client by fraudulently inducing
her to sign documents transferring her property to him. He had done so without the
knowledge of his principal who was liable because the fraud was committed in the course
of employment.

b) Partners

For the tort committed by a partner in the ordinary course of the business of the firm, all the
other partners are liable therefore to the same extent as the guilty partner. The liability Of
the partners is joint and several. In Hamlyn v. Houston & Co., one of the two partners bribed
the plaintiff’s clerk and Induced him to divulge secrets relating to his employer’s business.
It was held that both the partners were liable for the tort committed by only one of them.

c) Master and Servant [Authority by relation]

A master is liable for the tort committed by his servant while acting in the course of his
employment. The servant, of course, is also liable; their liability is joint and several. A
master is liable not only for the acts which have been committed by the servant, but also
for acts done by him which are not specifically authorized, in the course of his
employment. The basis of the rule has been variously stated: on the maxim Respondeat
Superior (Let the principal be liable) or on the maxim Qui facit per alium facit per se (he
who does an act through another is deemed to do it himself). The master is liable even
though the servant acted against the express instructions, for the benefit of his master, so
long as the servant acted in the course of employment.

d) Employer and Independent Contractor

It is to be remembered that an employer is vicariously liable for the torts of his servants
committed in the course of their employment, but he is not liable for the torts of those who
are his independent contractors. An independent contractor is one who works for another
but who is not controlled by that other in his conduct in the performance of that work.

e) Where Employer is Liable for the acts of Independent Contractor

The employer is not liable merely because an independent contractor commits a tort in the
course of his employment; the employer is liable only if he himself is deemed to have

Committed a tort. This may happen in one of the following three ways:

• When employer authorizes him to commit a tort.

• In torts of strict liability

• Negligence of independent contractor

Capacity to sue and to be sued.

The general rule is that all persons are entitled to sue and to be sued in tort. However, this
rule is subject to several [Link] are:

(1) Convict

(2) Minor

(3) Married Woman

(4) Municipality, centre or state government.

(5) Corporations and trade unions.

1 .Convict:

A convict may sue for torts to his person and property. In England, the rule was that a
convict serving the sentence could not Sue; but this has been abolished in 1948. Hence a
convict may sue. This is the position in India also.

[Link]
The infant/ minor can be sued for the act committed by them as an adult. Thus a minor can
be sued for assault, false imprisonment, libel, slander, fraud etc. but where intention,
knowledge or some other condition of mind are essential ingredients of liability then in that
cases minor/ infant can be exempted due to their mental incapacity. In the later case a
minor/infant cannot be sued.

[Link] women

The common law does not permit a married woman to sue or to be sued all alone. It is
necessary to be in association with her husband only then it shall be valid. This was the
rule because earlier under the law in England, husbands and wives were considered as
single entity in the eyes of law. Thus married women could not be sued all alone. This
difficulty was later removed by Married Women’s Property Act and later a married woman
can be sued independently without joining her husband as a party to the suit.

[Link], centre or state government

They cannot be held liable for misfeasance of their officers if they are exercising their
duties. Therefore the blunders of judicial officers cannot be charged from state’s accounts,
even if they commit a mistake while exercising their powers.

[Link]

Corporations have distinct legal personality and they can be sued like any other legal
person in India. This can happen when any servant commits an act of civil wrong on behalf
of the corporation. Private corporations can sue and get sued for torts. But A charitable
organization is not liable in tort for injuries done by physicians, employees or servants
when it has exercised due care in their selection, but it is liable for corporate misconduct
and negligence.

Servant And Independent Contractor

A servant and independent contractor are both employed to do some work of the employer
but there is a difference in the legal relationship which the employer has with them.

A servant Is engaged under a contract of services whereas an independent contractor is

engaged under a contract for services.

The liability of the employer for the wrongs committed by his servant is more onerous than
his liability in respect of wrongs committed by an independent contractor.
If a servant does a wrongful act in the course of his employment, the master is liable for it.
The servant, of course, is also liable. The wrongful act of the servant is deemed to be the
act of the master as well.

“The doctrine of liability of the master for act of his servant is based on the maxim
respondeat superior, which means ‘let the principal be liable’ and it puts the master in the
same position as he if had done the act himself.

Course of employment

In tort law, the term “course of employment” refers to when an employee’s actions are
considered to be part of their job, and therefore the employer may be held liable for them.

Common Employment

The doctrine of Common Employment refers to the rule wherein the employer is not liable
for the negligent act done by one employee to another in the course of their employment.
This doctrine is an exception to the principle that the master is vicariously liable for the act
done by his employee.

Joint Tort-Feasors

When two or more breaches of legal duty by different persons result in a single injury to the
plaintiff, then the two or more persons are called joint Tort Feasors. According to Lord
Justice Bankers “Persons are said to be Joint tort-feasors when their shares in the
commission of tort are in furtherance of a common design”.

Or

When a tort is committed by several persons, all the persons involved in it become joint
tortfeasor. In addition to this, all persons will be responsible for the same tort and will be
deemed to be joint wrongdoers in the eyes of law.

Circumstances of Liability of Joint Tort feasors

• Agency
As per the agency, when one person employs, appoints, or authorises a person to do a
false act, then the principal and the agent both become wrongdoers. Both of them are held
accountable.

A principal is someone who legally authorised someone to act on his behalf.

An agent legally acts on behalf of the principal while dealing with a third person during a
business transaction. The principal is liable if he gives unlawful instructions to the agent,
has negligently hired the agent, or has failed to supervise the agent.

• Vicarious Liability

Under this, liability lies on a person who has some legal relationship with the person
who has committed the wrong. In such a situation, both the persons, one who has
committed the wrong and the other who is legally related to him, are considered joint
tortfeasors.

Four important kinds of vicarious liability are:

• Principal-Agent Relationship
• Partners
• Master and Servant
• Employer and Independent Contractor

Joint or Standard Action

Under the law of torts, more than one person is said to be joint tortfeasors if they have
acted conjointly, or the same action follows if one of them has induced the other to
perform tort.

Two principles are involved in joint or common action-

• Additional liability
• The tort of standard design

The defendant acted in a selected way, which caused the prevalence of the tort by using
the principal actor. Two, the leading actor might have carried out so in pursuance of a joint
plan or “common design”. There may be no mounted test for figuring out the unusual
liability, and it differs as per the statistics and circumstances of the case.
NUISANCE

nuisance is an injury or an unlawful interference to the use or enjoyment, or some right

of a person in possession of a property. It is an act of unlawful, unreasonable or
unwarranted annoyance to the plaintiff’s use or right over the land.
Essential elements of Nuisance
● Wrongful act
● Damage or loss or annoyance caused to another individual.

Types of Nuisance

Nuisance can be classified into two kinds:

1. Public Nuisance,

2. Private Nuisance

Public Nuisance

Section 270 of BNS defines public nuisance.A person is guilty of a public nuisance who
does any act or is guilty of an illegal omission which causes any common injury, danger
or annoyance to the public or to the people in general who dwell or occupy property in
the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to
persons who may have occasion to use any public right but a common nuisance is not
excused on the ground that it causes some convenience or advantage.

Public nuisance affects the society and the people living in it at large, or some
considerable portion of the society and it affects the rights which the members of the
society might enjoy over the property.

Instances where an individual may have a private right of action in respect to a public
nuisance:
● He must show the existence of any personal injury which is of a higher degree
than the rest of the public.
● Such an injury has to be direct and not just a consequential injury.
● The injury must be shown to have a huge effect.

Private Nuisance
Private Nuisance is that kind of nuisance in which a person’s use or enjoyment of his
property is ruined by another. It may also injuriously affect the owner of the property by
physically injuring his property or by affecting the enjoyment of the property. The remedy
for private nuisance is a civil action for damages or an injunction or both.

Elements which constitute a private nuisance

● There must be an unlawful or unreasonable interference.

● Such unlawful interference must be with the enjoyment or use of the land or
some right or in connection with the land.
● There must be some damage suffered by the plaintiff.

Case Laws :- Datta Mal Chiranji Lal v. Lodh Prasad where the plaintiff was not
able to enjoy peacefully in his house due to the excessive noise produced by the
electric mill installed by the defendants, it was held that the plaintiff has a right to the
action.

St. Helen Smelting Co. v. Tipping where the fumes from the defendant’s
manufacturing industry damage the trees and shrubs present in plaintiff’s land, it was
held to be sufficient amount of damage to the property.

In Dilware v. Westminister City Council,the roots of the respondent’s tree caused a

crack to the neighbor’s building. The neighbor in the present case was allowed to claim
compensation for the damage caused to his property.

Defenses to Nuisance

● Prescriptive right to commit nuisance

● Statutory authority
● Act of god
● consent of plaintiff
● Necessity
● Trifles

Prescriptive right to commit nuisance

This concept is embodied in section 26 of the Limitation Act and Section 15 of the
Easement Act, which is that a title can be acquired by use and time because of
continuous possession of the property. This defense can be avail in case of nuisance
when defendant can show a peaceful open enjoyment of property as an easement for
20 years.

Statutory authority

When certain power is conferred by statutory law and such is exercised with due care
and skillfully without exceeding the conferred limit, the defendant can claim a defense
against offence of nuisance.

Act of god

Defendants can claim a defense of “act of God” as those are beyond human power or
contemplation and are caused by a superior natural force. In Nicholas v. Marsland
where an unprecedented rainfall caused bursting of the embankments of the lake, it was
held plaintiff cannot be made liable to the flood caused by such lakes. As such was an
act of god which was unexpected and beyond human control.

Consent of the plaintiff

This is basically a defense of ‘Volenti non fit injuria’ where the plaintiff has either
explicitly or impliedly consented for such an act of nuisance.

Necessity

When the offense of nuisance is committed in order to prevent a threat or harm, the
defendant can claim the defense of necessity.

Trifles

The latin maxim “De minimis non curat lex” means that law does not concern itself with
matters that are insignificant and/or immaterial. Thus no remedy is available to the
plaintiff in a matter which is immaterial in nature.
EFFECT OF DEATH OF PARTIES IN THE TORT

According to the English common law, no cause of action arises against the person who
is dead. This rule was contained in the maxim “Actio personalis moritur cum
persona”, the cause of action dies with the person, thus, if any of the parties die, cause
of action comes to an end.

There are two exceptions to the maxim “Actio personalis moritur cum persona”
[Link] under Contract: An action is brought under the law of contract, the legal
representatives of the person can be made liable for the performance. However, if the
contract entered into is a contract of personal service, then the legal representatives
would not be liable for the performance.

[Link] enrichment of tortfeasor’s estate: If someone, before his death has wrongfully
appropriated the property of another person then the person whose property has been
appropriated does not lose his right to bring an action against the representatives of the
deceased and recover the property.

The Law Reform (Miscellaneous Provisions) Act, 1934

The Act, allowed to be sued and bring an action for the claim against the estate of the
deceased.
Section 1(1) of the Act provides that on the death of the person all causes of action
subsisting against or vested in him, shall survive for the benefit of his estate.

Exceptions

● Claim for Defamation

● Claim for bereavement damages

Section 1 (2)(c) of the act provides that the estate of the deceased can claim the funeral
expenses in addition to all the damages which the deceased could have claimed upto
the date of his death.
The Estate may recover for any physical injury and pain, suffering and loss of amenity.
Provided that such damages must be sustained by the deceased prior to his death.

The Administration of Justice Act, 1982

The Administration of Justice Act, 1982 has curtailed the heads of the damages that can
be awarded.
[Link] damages to be awarded for the loss of Income in respect of any period after death.
[Link] exemplary damages

Shortening of the expectation of life

One of the consequences which may attend physical injury is a shortening of

expectation of life, so that the injured person can not in any possibility survive as long
as he would otherwise have done.

If the expectation of life has been reduced because of the injuries caused by the
defendant then the person is entitled for the compensation.

The compensation under this head for the first time was given in the case:

Flint v. Lovell

Facts: the Plaintiff aged 69 years who was otherwise very active was injured in an
accident caused because of the negligence of the defendant.

Held: The appellant court granted compensation to the plaintiff.

Rule in Baker v. Bolton

Bolton and his wife were travelling from Portsmouth to London in a stagecoach which
overturned during the journey. The plaintiff himself was not grievously injured but his
wife was, and due to severe damage and shock to her organs, she died approximately a
month later in the hospital where she was admitted. The plaintiff sought compensation
and brought upon a cause of action against the proprietors of the stagecoach. The
plaintiff claimed that he had undergone great vexation and loss due to the untimely and
avoidable passing of his wife. His lawyer remarked that the plaintiff required special
damages.

The plaintiff was allowed damages only for the hospital bills, the physical injuries and
the loss suffered to his estate and his person for the period of that one month during
which he could not work, from the date of the accident to the day of her death but no
more. But he wasn’t allowed any compensation in the way of her death.
The Fatal Accidents Act, 1976

Wrongful death of a person enables the dependents of the deceased to recover specific
damage for the deprivation of financial income or financially measurable support caused
because of the death of a [Link] Dependent must be appropriate claimant under
the [Link] spouse or the former spouse of the deceased
,any parent or other ascendent of the deceased,any person who was treated by the
deceased as his parent,
any child or other descendent of the deceased,any person who was treated by the
deceased as a child of the family,any person who is, or is the issue of, a brother, sister,
uncle or aunt of the deceased can claim under the Act.

To determine the amount of damages it is important to look upon as to what was the
likely benefit to the claimant or dependents if the deceased had survived.

In Taff Vale Rail Co. v. Jenkins, the father of a 16 year old girl was held entitled for the
compensation as the girl would have earned substantial amount in the near future after
the completion of her apprenticeship.

Section 5 of the Fatal Accidents Act 1976 states that where a person dies as the result
of partly his fault and partly of the other, so that the damages would have been reduced
under the Law Reform(Contributory Negligence) Act , then the damages recoverable by
the dependents would be reduced to a similar extent.

The Fatal Accidents Act, 1976 provides only for the loss of dependency and not for the
recovery of business losses.

Burgess v. Florence Nightingale Hospital of Gentlewomen

FACTS: The plaintiff and his wife were professional dance partners. Plaintiff’s wife died
because of the defendant’s negligent act. The plaintiff brought an action against the
defendant hospital to claim for the business losses that he suffered due to the death of
his wife.

HELD: The plaintiff was held not entitled for the compensation as no services were
rendered by the wife to the husband.

Bereavement
Section 1A of the 1976 Act provides that damages can be awarded for mental distress
(such as sorrow,grief, loss of enjoyment)
Claim for damages under this head are available only to:
● Wife or Husband of the deceased, or the Civil partner
● The parents of the child, if the deceased was unmarried minor child
● The mother of an illegitimate unmarried child
NEGLIGENCE

Negligence is the breach of a legal duty to take care which results in damage, undesired
by the defendant to the [Link] under Law of Torts is the omission to do
something which a reasonable man would do, or doing something which a prudent or
reasonable man would not do.

Elements of Negligence under Law of Torts

1. Duty of care to the plaintiff

[Link] of duty
[Link]

Duty of care to the plaintiff

It means a legal duty rather than a mere moral, religious or social duty. The plaintiff has
to establish that the defendant owed to him a specific legal duty to take care, of which
he has made a breach. There is no general rule of law defining such duty. It depends in
each case whether a duty exists.

Breach of duty

Breach of duty means non-observance of due care which is required in a particular

situation.

Damage

It is also necessary that the defendant’s breach of duty must cause damage to the
plaintiff. The plaintiff has also to show that the damage thus caused is not too remote a
consequence of the defendant’s negligence.

Rebuttal of the presumption of negligence

The rule of res ipsa loquitur only shifts the burden of proof and instead of the plaintiff
proving negligence on the part of the defendant, the defendant is required to disprove it.
If the defendant is able to prove that what apparently seems to be negligence was due
to some factors beyond his control, he can escape liability.

Res ipsa Loquitur

The Latin term Res Ipsa Loquitur means “the thing speaks for itself “. which means the
situation of a particular act is enough to get the idea what has happened. It is the
principle that the mere occurrence of some types of accident is sufficient to imply
negligence.

Case law regarding Res ipsa loquitur

Roe v. Minister of Health

In this case the plaintiff was admitted to the hospital for minor operations. The plaintiff
was administered spinal anaesthetics by injections of nupercaine and developed spastic
paraplegia. The anaesthetics were stored in glass ampoules immersed in a solution of
phenol, and the judge found that the injuries were caused by phenol, which could have
entered the ampoules through flaws not detectable by visual examination. The plaintiff
contended that the doctrine of Res Ipsa Loquitur be applied against the hospital as the
injury would not have occurred had the hospital not been negligent.

Houghland v. R.R. LOW (luxury of coaches) Ltd.

The plaintiff’s suitcase was deposited with the defendant bus-owner’s driver at the
beginning of a journey. The bus broke down and the luggage was transferred by the
owner’s servants from the bus’s boot to another bus. At the end of the journey the
suitcase could not be found. The plaintiff was awarded damages and the court held that
if the luggage had been lost then it was upto the defendant to prove that he was not
negligent, which is nothing but Res Ipsa Loquitur.

Essentials to prove res ipsa loquitur

[Link] incident was of a type that does not generally happen without negligence

[Link] was caused by an instrumentality solely in defendant’s control

[Link] plaintiff did not contribute to the cause

Limitations on Res ipsa Loquitur

An injury which happens without the fault of a plaintiff (i.e. certain types of slip-and-fall
accidents) would necessarily fail the prima facie test, failing the third element in
particular.

Maxim not applicable if different inferences possible –

The maxim res ipsa loquitur applies when the only inference from the facts is that the
accident could not have occurred but for the defendant’s negligence.

In Sk. Aliah Bakhas v. Dhirendra Nath, an auto rickshaw tried to cross the unmanned
level crossing when the railway train was at a short distance from the crossing. The
autorickshaw was hit and dragged to some distance by the train injuring the occupants.
It was held that an attempt on the part of the rickshaw driver to cross the railway track
when the train was fast approaching could lead to the only inference that the rickshaw
driver was negligent. Therefore, the presumption of negligence against the rickshaw
driver was raised. When the accident is capable of two explanations, such a
presumption is not raised

Remedies for negligence

The principal remedy in any case involving negligence will be an award of damages.
The damage caused to the claimant must be of a type that is ‘reasonably foreseeable’.
A loss is reasonably foreseeable if a reasonable man would have foreseen the type of
injury, loss or damage. Proving the duty of care As a general rule it is for the claimant to
prove that the defendant was in breach of the duty of care.

Remoteness of Damage

Overseas Tank-ship (UK) v Morts Dock and Engineering Co (The Wagon Mound)
(1961)

Facts: due to the defendant’s negligence oil was spilled and accumulated around the
claimant’s wharf. The oil ignited and the wharf suffered fire damage.

Held: The defendants were held not liable for negligence under Law of Torts since, while
damage to the wharf by oil pollution was foreseeable, damage by fire was not.

If the type of damage is reasonably foreseeable the defendant is liable. It is irrelevant

that the defendant might not have been able to foresee its cause or its severity.
Defences against negligence

[Link] NEGLIGENCE
[Link] OF GOD OR VIS MAJOR
[Link] ACCIDENT

[Link] NEGLIGENCE:

When a tort or a wrongful action is committed by negligence on the part of both , the
plaintiffs and defendants, the defendants can raise the plea of contributory negligence
under Law of Torts. 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:

Act of god refers to some natural calamity such as heavy rainfall , storms ,earthquakes
and [Link] 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.

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 was held
that, the defendant was not liable as the water escaped by the act of God.

[Link] ACCIDENT
If the plaintiff has an unexpected injury owing to an unforeseen and Inevitable event, in
spite of reasonable care on the part of the defendant, it is called inevitable accident. The
defendant has to prove that he neither intended to injure the plaintiff nor had the means
to avoid the injury by taking reasonable care. 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.

Brown v. Kendal

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.

Holmes v. Mather

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.

Stanley v. Powell

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.
Remoteness of Damage

The concept of remoteness of damage is an important element of the law of torts

because it establishes a causal connection between the defendant’s actions and the
plaintiff’s harm, and limits the extent to which a defendant can be held responsible for
harm suffered by the [Link] of damage in tort law is a principle that limits
a defendant's liability for the harm caused by their actions to what was reasonably
foreseeable at the time of the wrongdoing. This principle is important because it
prevents tort law from imposing unfair burdens on defendants.

In law, the damage must be direct and the natural result of the consequence of the act
of the defendant. Otherwise, the plaintiff will not succeed. This is In jure non remota
causased proxima spectatur (In law the immediate, not the remote cause of any event
that is to be considered). The reason for this is that the defendant is presumed to have
intended the natural consequences, but not the remote damage.

Novus actus interveniens: (new act intervening)

The act and the consequences are to be connected directly and the defendant will not
be liable for Novus actus interveniens and the consequences thereof.

Scott v. Shepherd (Squib case)

D threw a lighted squib into a crowd. It fell on X. who threw it further, It fell on Y who
threw it away. It fell on P, exploded and blinded one eye. Held, D was liable to P. Though
X and Y had intervened, D's act was the Causa Causans. The defendant pleaded novus
actus intreveniens but the court rejected this defence.

Illustration

A person is going driving on a road, he hits a girl on the footpath, the girl tumbles on a
bicycle breaks her finger, the bicycle man loses his balance and gets in front of a fuel
tanker, the tanker to save the man on the bicycle steers left but unfortunately hits the
railing to a river bridge and falls into it, the lock of the fuel tank breaks and the oil spills
into the river , the driver with the truck drowns.

In the above case:

The girl being hit is the direct damage and it is the direct damage caused by the act of
A, the damage caused to the cyclist is proximately caused by the falling of the girl and is
remote to the act of A, the damage caused to the truck driver and the loss of
material(fuel and fuel tank) is remote to the act of A and proximate to the act of the
cyclist. And it is to be noted that the accountability to negligence is made on the
assumption that the person is aware of the fact that rash driving can lead to fatalities.
(though the expected and the actual results might not be the same).

Now, the starting point of any rule of the remoteness of damage is the familiar idea that
a line must be drawn somewhere. It would be unacceptably harsh for every tort feasor
to be responsible for all the consequences which he has caused.

Certainly, the question of where to draw the line on recover-ability of consequential

losses cannot be answered by a mathematically precise formula. Judges have used
their discretion from time to time.

Two tests to find out direct damage.

● The test of reasonable foresight.

● The test of directness.

The Test Of Reasonable Foresight

If the consequences of a wrongful act could be foreseen by a reasonable man, then

they are not too remote. If on the other hand, a reasonable man could not have
foreseen the consequences, then they are too remote. And, an individual shall be liable
only for the consequences which are not too remote i.e. which could be foreseen.

The Test Of Directness

According to the test of directness, a person is liable for all the direct consequences of
his wrongful act, whether he could foresee them or not; because consequences which
directly follow a wrongful act are not too remote.

The test of reasonable foresight means that the liability of the defendant extends only to
those consequences, which could have been foreseen by a reasonable man. This
theory was rejected in 1921, and the second theory was applied in re Polemis and
Furnace Ltd case. In this case, D chartered P's vessel to carry a cargo which included
petrol. Some cases were leaking and there were vapours of petrol. D's servants while
shifting cargo negligently knocked at a plank which fell rubbing the wood and got
ignited. As a result the entire vessel caught fire and was destroyed. Held, D was liable.
It was due to the negligence of D's servants that the fire had broken out and hence D
was liable for all the consequences, even though those could not reasonably have been
anticipated.

This theory was rejected in the Wagon Mound Case 1960; there is a return to the old
reasonable foresight test.

The Wagon Mound, an oil-tanker vessel, was chartered by D and had been moved at
Sydney (Australia) harbour. At a distance of about 600 feet, P had a wharf, where
repairs of a ship were going on. Due to the negligence of D's servants, oil spilt from the
wagon Mound, spread over to the wharf where P was making some welding operations.
P's manager stopped his welding work, enquired D whether he could safely continue the
welding. D assured no danger. P's manager himself believed that the oil was
non-inflammatory on water, and continued welding work. Two days later molten metal
from the wagon Mound fell on cotton waste, ignited and caused a great damage to the
wharf and the equipment.

The Privy Council in England held that D (Wagon Mound) was not liable.

The Court applied the test of reasonable foresight and rejected the direct rule theory.
It overruled Re Polemis case.
STRICT LIABILITY

The principle of strict liability evolved in the case of Rylands v Fletcher. In the year
1868. The principle of strict liability states that any person who keeps hazardous
substances on his premises will be held responsible if such substances escape
the premises and causes any damage.

Facts of the case

Two men were living adjacent to each other, i.e., Rylands and Fletcher. Fletcher had a
mill which required energy resources for which there was a need to construct a
reservoir. He hired some independent contractors and engineers for the construction.
Ryland owned certain mine shafts which the contractors didn’t observe. Because of this,
the water reached mines and destroyed Ryland’s land, for which he suffered losses and
sued for same.

Issue: Can the defendant be held responsible for another party's action that causes an
entity to leave his property without his knowledge or consent?

The defendant asserted that it was the contractor’s fault rather than his own. He could
not accept that he was responsible for the harm, even though he did not know what
caused it.

Judgment: The House of Lords held that Fletcher would be liable to compensate
Rylands for all the damage caused to him.

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

Essentials of Strict Liability

Dangerous Substances: The defendant will be held strictly liable only if a “dangerous”
substances escapes from his premises.A dangerous substance can be defined as any
substance which will cause some mischief or harm if it escapes.

Escape: The material should escape from the premises and shouldn’t be within the
reach of the defendant after its escape.

Non-natural Use:To constitute a strict liability, there should be a non-natural use of the
land. In the case of Rylands v. Fletcher, the water collected in the reservoir was
considered to be a non-natural use of the land. Storage of water for domestic use is
considered to be natural use. But storing water for the purpose of energizing a mill was
considered non-natural by the Court.

Exception to the Rule of Strict Liability

Plaintiff’s Fault: If the plaintiff is at fault and any damage is caused, the defendant
wouldn’t be held liable, as the plaintiff himself came in contact with the dangerous thing.
Case Law:Ponting v Noakes,the plaintiff’s horse died after it entered the property of
the defendant and ate some poisonous leaves. The Court held that it was a wrongful
intrusion, and the defendant was not to be held strictly liable for such loss.

Act of God: The phrase “act of God” can be defined as an event which is beyond the
control of any human agency. Such acts happen exclusively due to natural reasons and
cannot be prevented even while exercising caution and foresight. The defendant
wouldn’t be liable for the loss if the dangerous substance escaped because of some
unforeseen and natural event which couldn’t have been controlled in any manner.

Act of the Third Party: The rule also doesn’t apply when the damage is caused due to
the act of a third party. The third party means that the person is neither the servant of
the defendant, nor the defendant has any contract with them or control over their work.
But where the acts of the third party can be foreseen, the defendant must take due care.
Otherwise, he will be held responsible.
Case law :Box v. Jubb, the defendant's reservoir was overrun due to the deliberate act
of the third party emptying his own reservoir into theirs. The Court held that the
defendant wouldn’t be liable.

Statutory authority- the authority charged with providing a service to society is

exempted from liability if they are not found negligent. In the ruling Greene v. Chelsa
Waterworks and Co, the court held that no company was not liable in the event of the
burst in the main pipe as it was the duty of the defendant to maintain the main supply of
water.

ABSOLUTE LIABILITY

In the case of M.C. Mehta v. Union of India, the doctrine of absolute liability was
developed. This case was a significant turning point in Indian legal history by
establishing a new rule. The rule stated that an enterprise is strictly liable to
compensate all those harmed by an accident when the enterprise is engaged in a
hazardous or inherently dangerous activity and harm results to anyone as a result of an
accident in the operation of such hazardous or inherently dangerous activity.

M.C. Mehta v. UOI- A company owned by Union Carbide was established in Bhopal.
The factory produced pesticides and similar goods. 40 tonnes of hazardous gas were
released by the plant overnight on December 2nd, 1984. (methyl isocyanate). The
surrounding region of the facility turned into a gas chamber, resulting in 3000 fatalities
and numerous injuries. All of the plant's safety systems were determined to be broken
throughout the examination. The Supreme Court decided against adhering to the strict
liability rule because doing so would let these industries off the hook for the harm they
inflicted and the lives they lost.

The rule stated clearly that when an enterprise engages in a risky or inherently
dangerous activity and harm is caused to anyone as a result of an accident while
carrying out such a risky or inherently dangerous activity, the enterprise is strictly and
absolutely liable to compensate all parties affected by accident and such liability is not
subject to any of the exceptions that apply to the tortious principle of strict liability.

ABSOLUTE LIABILITY= STRICT LIABILITY - EXCEPTIONS

Essential Elements of Absolute Liability

● Dangerous Thing
● Escape
● Non-natural use of land
● Mischief

The Public Liability Insurance Act, 1991

This act was introduced with the aim of providing immediate relief to people who are
victims of accidents in which handling of hazardous substances is involved. The main
focus of the Act is to create a public liability insurance fund which can be used to
compensate the [Link] Act states that any person who is carrying out inherently
dangerous or hazardous activities should have insurances and policies in place where
he will be insured against liability to provide compensation to the victims in case any
accident takes place, and some injury occurs.
Assault

assault is a tort, an act of the defendant which causes to the plaintiff reasonable
apprehension of the infliction of a battery on him by the defendant. When the defendant
creates his act by an apprehension in the mind of the plaintiff that he is going to commit
battery against the plaintiff, the wrong of assault is completed. The wrong consists of an
attempt to do harm rather than the harm being caused thereby. In assault charges must
include conduct that is offensive which is offensive or causes another person to the fear
of their safety. This clearly means that one can be guilty of assault even if he/she did not
physically harm the victim

Battery

Purposely touching or applying force on other persons or things related to the person
without his consent with the intention to harm the person is known as a battery. It is only
considered when there is an actual physical contact without the consent of the person to
harm the person. Generally, assault is followed by the battery which is the reason
assault and battery are mostly used together.

The battery is often considered as trespass to a person, so it is divided into two types:

Criminal Battery
Civil Battery

Criminal Battery

Criminal Battery is also known as the battery as a crime. Whenever there is an intention
to kill a person or to hurt the person with an offensive physical contact is considered as
the battery of crime. In a criminal battery, intention plays a major role as the action
involves intention to kill a person.

Civil Battery

Civil Battery is also known as the battery as a tort because it is a civil wrong. When a
person has no intention to hurt someone but commits an act which hurts another person
and the wrongdoer had an idea that the act will hurt another person is known as a civil
battery. As the battery is considered as an intentional tort, but in the civil battery the
,intention to hurt someone is not present, so the victim can lodge a complaint against
the wrongdoer under civil court.
Essentials of Battery

● Intention
● Contact
● Harm
● No Consent
● No Lawful Justification

FALSE IMPRISONMENT

A person commits false imprisonment when they engage in the act of restraint on
another person which confines that person in a restricted area. False imprisonment is
an act punishable under criminal law as well as under tort law. When a person is
deprived of his personal liberty, whether by being confined within the four walls or by
being prevented from leaving the place where he is, it is false imprisonment.

Elements of false imprisonment

● Wilful detention
● intention
● Knowledge of the plaintiff
● Total restraint of liberty
● Unlawful act
● Force or threat of force
● No mandatory requirement of damage

Defences of false imprisonment

● Valid Arrest
● Consent to Restraint
● Probable Cause
● Statutory authority
● Citizen’s arrest
● Partial restraint

Remedies of false imprisonment

Action for loss

The basis of these damages involves injury, mental suffering, humiliation, injury to
reputation, or physical suffering to the person. There is no such rule mainly for
assessing the damage, and it is left to the court to decide.

Nominal and compensatory damages

If there are exemplary damages, the plaintiff is entitled to have an equal amount for the
loss, but the nominal award will be inadequate if there is more significant damage.

Punitive exemplary and aggravated losses

The court will also award exemplary or punitive damages if the imprisonment has been
affected by reckless design meant to injure and oppress.

Writ of habeas corpus

It is also considered a golden remedy by English law. This writ is a better means to
release from immediate, unlawful detention. It can be used in several criminal cases of
false imprisonment.

Self-help

If detained unlawfully, they may use self-help groups to save themselves from unlawful
arrest involving reasonable force.

Landmark cases

Bhim Singh vs. State of Jammu and Kashmir. In this case the petitioner, MLA of J&K
was to participate in the Assembly meeting. His opponents in order to prevent him from
attending the Assembly session got him arrested wrongfully with the help of some
executives and police. The Magistrate also granted remand to police without
compliance of the mandatory requirement of production of the accused in the
Magistrate’s Court before reminding him to police custody. He was released after the
Assembly session got over. The Supreme Court held the State liable for wrongful arrest
and detention of the petitioner and ordered a compensation of Rs. 50,000 to be paid to
the petitioner.

Rudal Shah vs. State of Bihar. In this case, the petitioner, an under-trial was
wrongfully confined in jail for several years despite his acquittal by the Court. The High
Court of Patna held that as soon as a person under trial is found not guilty by the court,
he should be set free. Any detention after it shall be unlawful. The State had to pay a
sum of Rs. 30,000 as compensation.

In the case of Sebastian M. Hongray v. Union of India and Others (1984), two
persons were unauthorisedly detained by an army officer and could not be produced in
court even after filing a writ of habeas corpus. They were assumed to have met an
‘unnatural’ death in the custody of the army officer based on circumstantial and prima
facie evidence. The Supreme Court of India stated that the Union of India “cannot
disown” the responsibility for the act. The Supreme Court of India awarded exemplary
damage “in the nature of compensation” to their widows to be paid by the state.
Foreign Tort

A foreign tort can be defined as “When a tort which is committed abroad by a person
and therefore the cause of action for such tort arises abroad.

There are 2 kinds of foreign torts which are as follows:

1. Tort of Realty
2. Personal Torts

Tort of Realty

Whenever any tort is committed against a property which is situated in a foreign country,
the tort is called tort of reality. In such torts, the affected property is an immovable
property which means that such property is fixed at one place and it cannot be moved
from its position.

Under the English law of torts, no action can arise in a case where any tort relating to
immovable property is committed and thus in such cases, the suit filed by the plaintiff is
rejected by the courts.

Illustration: A is resident of England who visits India on a business trip and while staying
in India, he commits a tort of trespass on B’s House. Here even though a tort has been
committed but since it has been committed against an immovable property which is
situated in a foreign country it is a tort of reality and such a case against A will not be
maintainable.

In the case of Britten South Africa Co. v. Compania de Mecambique (1953) AC 602,
the defendant was a resident of England and he had trespassed into the mine of the
plaintiff which was situated in South Africa as a result, the plaintiff brought a suit against
him in the Court for trespass. It was held that, since the tort was committed against an
immovable property in a foreign land, the suit of the plaintiff cannot be successful and
therefore the defendant was not held guilty.

Personal Torts
In foreign torts, whenever there is an unlawful act committed against a person or
against his movable property, such tort is known as personal torts. Unlike tort of reality,
in cases of personal torts, the person who suffers a loss has the right to file the suit
against the tortfeasor and such person’s suit is not rejected by the Courts. Thus for
movable property and the body, personal torts are applied and remedy is available to
the injured person.

Illustration: A (a resident of Spain) is on a trip to Switzerland, and got his phone stolen
by B. Here, since the phone is a movable property, such a tort will fall in the category of
personal tort under foreign torts and the suit filed by A will be accepted by the court and
B will be held liable.

But all the suits under Personal torts cannot be accepted by the Courts and therefore
only on the fulfilment of certain conditions, a suit for a personal tort which has been
committed abroad can be accepted by the court.

The conditions are as follows:

The wrongful act is actionable in the country where such wrong has been
committed.

The first condition which has to be fulfilled in a case of personal tort to be successful is
that the tortious act which is committed by the defendant against the body or the
property of the plaintiff is actionable in the country in which this act has been committed.
For e.g., If a tort is committed against A’s body and he files a claim for damages. The
Court will first see whether a suit can be filed in the court of the country where such an
act was committed or not. If such an act is not actionable then the suit filed by A will be
rejected.

The act for which a suit is filed should be actionable if it had been committed in
the country where the case was filed.

This is the second condition which must be fulfilled for a successful claim in cases of
personal tort. If the country in which the plaintiff wants to enforce his rights does not
provide such right or it does not consider that act to be unlawful, then in such a case if
the Court allows the claim of the plaintiff it will amount to enforcing the laws of other
nation and that situation cannot be allowed. For e.g., If trespass to movable property is
an offence in country X but that is not an offence in country Y. A who is from Y wants to
file a case in a court of Y for trespass to movable property. The court will not allow such
a claim because it is not an offence in Y and thus there is no actionable claim in Y for
such acts.
Nervous Shock

Nervous shock in torts describes a psychological injury or emotional distress that a

person suffers due to the negligent or intentional actions of another [Link] type of
shock often manifests as a psychological condition brought on by witnessing a traumatic
event, such as an accident involving one’s family members or spouse.

A nervous shock in tort claim can be brought by an individual who has been diagnosed
with a genuine mental illness resulting from an event that the defendant should have
reasonably anticipated could cause such an illness in a person of “normal fortitude” if
reasonable care were not taken.
In addition to the affected individual, certain close relatives of the victim can also bring a
nervous shock claim.

The legal test for a nervous shock claim typically involves three criteria established by
common law:

Duty of Care: The defendant must owe the plaintiff a duty of care, meaning the
defendant had a legal obligation to act reasonably and avoid causing harm to the
plaintiff.

Foreseeability of Psychological Harm: It must be reasonably foreseeable that the

plaintiff could experience psychological harm as a result of the defendant’s actions or
inaction.

Causation: The plaintiff’s psychological injury must be a direct result of the defendant’s
negligent act or omission. The plaintiff must establish a clear causal link between the
defendant’s actions and their psychological harm.

Compensation in Nervous Shock Claims

There are two types of victims of nervous shock in torts:

Primary Victim: A primary victim is someone who is directly harmed in an accident due
to the negligence of the wrongdoer. This person is physically affected by the incident.

Secondary Victim: A secondary victim is an individual who experiences nervous shock

as a result of an accident that harmed the initial victim but was not physically
endangered themselves.
Cases of Nervous Shock in Torts

Here are two notable case laws related to nervous shock in torts:

Bourhill v. Young

Facts: In this case, the House of Lords addressed the issue of liability for mental illness.
A pregnant woman exited a tram and heard the distant sound of a car accident. She
then visited the accident scene, saw blood on the road and later experienced a
miscarriage due to the stress she endured.

Judgment: The House of Lords ruled that the woman was not a “foreseeable claimant.”
In other words, she was not allowed to base her claim on harm done to another person.
This case set a precedent that limited who could bring a claim for nervous shock in
torts.

McLoughlin v. O’Brian

Facts: In this case, the plaintiff was not physically present near the accident but was
greatly distressed upon learning about it.

Judgment: The House of Lords held the defendants responsible and expanded the law
to include cases where the plaintiff arrived immediately after the accident but had not
personally witnessed or heard it. Lord Wilberforce proposed three control mechanisms
that should be determined in each case: the group of people whose claims should be
accepted, their proximity to the disaster and the mechanisms leading to mental illness.
Following a unanimous vote in the House of Lords, these control mechanisms were
revised and applied to cases involving nervous shock in torts.
REMEDIES IN TORT

Remedies in tort refers to the solutions provided by the court to aggrieved parties who
have suffered a tortious [Link] the aggrieved person is taken back to the position
that they were enjoying before their rights were infringed, they are said to have been
provided with a legal remedy.

There are two broad types of remedies in Tort Law.

[Link] Remedies
[Link]-Judicial Remedies

Judicial Remedies

As the term suggests, these are the remedies that the courts of law provide to an
aggrieved party. Judicial remedies are of three main types

[Link]
[Link]
[Link] Restitution of Property

Extra-judicial Remedies

On the other hand, if the injured party takes the law in their own hand (albeit lawfully),
the remedies are called extra-judicial remedies. These are of five main types:

[Link] of trespasser
[Link]-entry on land
[Link]-caption of goods
[Link]
[Link] Damage Feasant

[Link]

Damages, or legal damages is the amount of money paid to the aggrieved party to bring
them back to the position in which they were, before the tort had occurred. They are
paid to a plaintiff to help them recover the loss they have suffered. Damages are the
primary remedy in a cause of action for torts. The word “damages” should not be
confused with the plural of the word “damage”, that generally means ‘harm’ or ‘injury’.
Types of damages

There are 4 types of damages

[Link]– contemptuous damages are also called ignominious damages. The

amount of money awarded by the court in this case is very low, as to show the court’s
disapproval, that is, when the plaintiff himself is at some fault and cannot wholly be said
to be ‘aggrieved’.

[Link]– Nominal damages are awarded when plaintiff’s legal right is infringed, but
no real loss has been caused to him. For example, in cases of trespass, when damage
has not been caused, a legal right is still infringed. Here, the objective is not to
compensate the plaintiff.

[Link]-Substantial damages are said to be awarded when the plaintiff is

compensated for the exact loss suffered by him due to the tort.

[Link]/Punitive– These are the highest in amount. Punitive damages are

awarded when the defendant has excessively been ignorant of the plaintiff’s rights and
great damage has been caused to the defendant. The objective here is to create a
public example and make people cautious of not repeating something similar.

GENERAL AND SPECIFIC DAMAGES

General damages refer to damages that flow naturally from the wrongdoing.
General damages are not specifically monetary. Pain and suffering, loss of
consortium, and emotional trauma are the main forms of general damages.
These are losses that do not have any tangible bills or costs associated with
them, but these are still harms that a person suffers and deserves to be
compensated. Examples of general damages include: physical pain and suffering
(compensation for being in pain); physical injury or impairment (disfigurement or
disability); mental pain and anguish (trauma, stress and anxiety); diminished
quality of life (relying on others, lack of mobility, etc.); loss of companionship and
support (loss of a family member in a wrongful death case); and loss of a career
(the injured victim can no longer work in a specialized career).
Special damages are economic damages and have a monetary value. These
include medical expenses or lost [Link] are the injured victim’s
out-of-pocket expenses are can be easily calculated. Examples of special
damages include: the exact cost of medical bills; the exact amount of lost wages,
the loss of an irreplaceable item; the costs of home care; the cost of domestic
services; and the costs to repair or replace items of property.

Measurement of Damages

There is no arithmetic formula to decide the quantum of damages. Therefore, a

number of factors, including the facts and circumstances of each case are to be
considered to ascertain the damages. Damages are therefore awarded at the
discretion of the court.

Remoteness of ‘Damage’

In tort law, the concept of the remoteness of damage refers to the idea that a
defendant is only liable for the harm caused by their actions if that harm was
foreseeable at the time of the wrongdoing. If the harm suffered by the plaintiff
was too remote or unforeseeable, the defendant cannot be held responsible for
it.

[Link]

An injunction is an order of a court that restrains a person from continuing the

commission of a wrongful act, or orders the person to commit a positive act to
reverse the results of the wrongful act committed by him, that is, to make good
what he has wrongly done. To receive injunction against a party one must prove
damage or the possibility of prospective damage (apprehended damage). An
injunction can be temporary or permanent, and mandatory or prohibitory.

A suit of injunction can be filed against any individual, group or even the State.

Temporary injunction
A temporary or interlocutory injunction is granted during the pendency of a case,
to maintain the status quo and avoid further damage until the court passes a
decree. It prevents the defendant from continuing or repeating the breach that he
had been doing. A temporary injunction is granted to prevent the party from
suffering through the damages during the court proceedings. They may be
granted at any stage during the pendency of the case.

Certain principles are kept in mind while granting a temporary injunction:

● There has to be a prima facie case.

● A balance of convenience has to be maintained. (That is, which party is
more at loss, etc.)
● There has to be an irretrievable damage. (The damage has to be such that
cannot be compensated for, in money)

Permanent Injunction

A perpetual or permanent injunction is granted after the court has heard the case
from both sides and passes a decree. Here, since it is a court decree, it is final
and perpetually applicable. That is, the defendant cannot continue his wrongful
act, or has to do a positive act for perpetuity.

Mandatory Injunction

When the court has asked the party to do something, it is a mandatory injunction.
That is, when the court compels a party to perform a certain act so as to bring
back the aggrieved party or the plaintiff to the position that he/she was in before
the commission of the act of the defendant. For example, the court may ask a
party to make available some documents, or to deliver goods, etc.

Prohibitory Injunction

When the court has asked the party to not do something, it is a prohibitory
[Link] court prohibits a person, or refrains them from doing something
that is wrongful. For instance, it may ask the party to remove an object of
nuisance or to stop his act of nuisance.
[Link] Restitution of Property

The third judicial remedy available in the Law of Torts is that of Specific
Restitution of Property. Restitution means restoration of goods back to the owner
of the goods. When a person is wrongfully dispossessed of his property or
goods, he is entitled to the restoration of his property.

Extra-Judicial Remedies

When a person can lawfully avoid or remedy himself without the intervention of
courts, the remedies are called extra-judicial remedies. In this, the parties take
the law in their own hands. Some examples are:

Expulsion of trespasser

A person can use a reasonable amount of force to expel a trespasser from his
property. The two requirements are:

● The person should be entitled to immediate possession of his property.

● The force used by the owner should be reasonable according to the
circumstances.
Illustration: A trespasses into B’s property. B has the right to use reasonable
force to remove him from his property and re-enter himself.

Re-entry on land

The owner of a property can remove the trespasser and re enter his property,
again by using a reasonable amount of force only.

Re-caption of goods

The owner of goods is entitled to recapture his/her goods from any person whose
unlawful possession they are in. Re-caption of goods is different from specific
restitution in that it is an extra-judicial remedy, in which the person need not ask
the court for assistance, instead, takes the law in his own hands.
Illustration: If A wrongfully acquires the possession of B’s goods, B is entitled to
use reasonable force to get them back from A.

Abatement

In case of nuisance, be it private or public, a person (the injured party) is entitled

to remove the object causing nuisance.

Illustration: A and B are neighbours. Branches of a tree growing on A’s plot enter
B’s apartment from over the wall. After giving due notice to A, B can himself cut
or remove the branches if they’re causing him nuisance.

Distress Damage Feasant

Where a person’s cattle/other beasts move to another’s property and spoil his
crops, the owner of the property is entitled to take possession of the beasts until
he is compensated for the loss suffered by him.
MOTOR VEHICLES ACT, 1988

LIABILITY UNDER MV ACT

[Link]-FAULT LIABILITY

Sections 140-144 of the Motor Vehicle Act covers the no-fault liability.
Section 140 talks about the liability to pay compensation in case of death or
permanent disability. Further, under sec.140, subsection 2, the
compensation to be paid in case of death is Rs. 50,000 and in case of
permanent disablement of any person, Rs. 25,000 is to be paid.
According to the Section 142, the permanent disablement of a person will
only be taken into account if such person has suffered permanent privation
of the sight of any eye, or hearing of ears, the privation of any part of the
body or joint, or the destruction or permanent impairment of the joints, or
permanent disfiguration of head or face.
It was provided that the claimant shall not be required to prove any fault of
the owner of the vehicle or any other person for claiming compensation as
mentioned in section 140. It means that the claimant shall not be required
to plead and establish that there was any wrongful act, negligence or
default was on the part of the owner(s) of the vehicle(s) concerned or of
any other person while claiming compensation.
It should also be kept in mind that the claims for the compensation under
section 140 shall neither be defeated by the reason of negligence or default
of the accident victims nor shall the compensation payable be reduced on
account of any such responsibility. Also, very importantly, the defence of
contributory negligence is not allowed to be pleaded when the
compensation under Section 140 is claimed.
The word ‘accident’ is not defined in the Act, instead the expression ‘arising
out of the use of a vehicle’ is used. This has greatly enlarged the scope of
protection made available to the victims and is in consonance with the
beneficial objects underlying the enactment. This has been vividly
explained in the Shivaji Dayanu v. Vatschala Uttam More case.
[Link]-PARTY INSURANCE

Under the provisions of the Motor Vehicle Act,1988, it is mandatory that

every vehicle in India should have a valid insurance cover to drive on the
road. By ‘every vehicle’, it means any vehicle used for social, domestic, or
for pleasure purposes and for other insurer’s business motor purpose
should be insured. In Govindan v. New India Assurance Co. Lt., the court
stated that the third party insurance is compulsory under the Motor Vehicle
Act and should not be overridden by any clause in the polic.
Third-party insurance or third party liability cover is a statutory requirement
under the Motor Vehicle Act. The first party in this is the insured and the
second party is the insurer. It is referred to as the third party liability cover
as the beneficiary of this insurance is not the insured, but the other person
apart from these two. This insurance only covers the insured’s legal
liabilities arising out of death or permanent disablement or disability of the
third party, loss or damage to the third party’s property.
Chapter XI of the Motor Vehicle Act, 1988 contains the provisions of the
insurance of motor vehicles against third party risk. It is covered between
Sections 145 to 164 of the Motor Vehicle Act.

● LIABILITY OF THE INSURER

As per the Section 147(2) of the Motor Vehicle Act, policies are only bound
to cover the liability in the respect of the accident up to the limit of the
amount of liability incurred, and in case of damage to any property of the
third party. It is explained in the case, Bhoopathy v. Vijayalakshmi the
Madras High court opined that no bar is to be imposed as to when the
liability of the insurer ceases to exist.

● LIABILITY OF THE THIRD PARTY

Under the liability of a third party, the third party is liable to payback.
Consider an event, causing death or disability to a person or damage to
property of a third party falling under the provisions of chapter XI of the
Motor Vehicle Act, if the insurer has paid the third party excess amount
than the amount in relation to which liability was incurred. Here in this
scenario, the third party is liable to pay back that excess amount to the
insurer or as the case may be to the insured. Further also, if the
compensation has been already paid to legal heirs or person injured, such
compensation amount will be refunded back to the insurer.

[Link] WHEN THE VEHICLE IS NOT INSURED

If the vehicle is not insured as should have been under third party cover,
even then the claimant has a right to claim compensation. But here, in this
case, the responsibility will be fixed on the negligent driver or the owner of
the vehicle. Such a person will have to pay the compensation to the victim
out of his own pocket. This position is also maintained where a vehicle,
belonging to the Central or State Government or a corporation is exempted
from being insured under Section 146(2) and (3) of the Motor Vehicle
Act,1988. And it is to be noted that exemption from the requirement of
getting the vehicle insured does not imply exemption from liability to pay
compensation.
 THE CONSUMER PROTECTION ACT, 2019.

IMPORTANT DEFINITIONS

● Complainant : According to Sec 2(5) of the Consumer Protection

Act, 2019 complainant" means—
(i) a consumer; or.
(ii) any voluntary consumer association registered under any law for
the. time being in force; or.
(iii) the Central Government or any State Government; or.
(vi) in case of death of a consumer, his legal heir or legal
representative; or
(vii) in case of a consumer being a minor, his parent or legal
guardian;

● CONSUMER
Sec 2(7) - “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 service 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 service 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 who avails of
such service for any commercial purpose.
 "commercial purpose " does not include use by a person of goods
bought and used by him exclusively for the purpose of earning his
livelihood, by means of self-employment;

"buys any goods " and "hires or avails any services " includes offline
or online transactions through electronic means or by teleshopping
or direct selling or multi-level marketing;

● DEFECT
Sec 2(10)- "defect " means any fault, imperfection or shortcoming in the
quality, quantity, potency, purity or standard which is required to be
maintained by or under any law for the time being in force or under any
contract, express or implied or as is claimed by the trader in any manner
whatsoever in relation to any goods or product and the expression
"defective " shall be construed accordingly;

● DEFICIENCY
Sec 2(11) - "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 and includes--
(i) any act of negligence or omission or commission by such person which
causes loss or injury to the consumer; and
(ii) deliberate withholding of relevant information by such person to the
consumer;

● E-COMMERCE
Sec 2(16) - "e-commerce " means buying or selling of goods or services
including digital products over digital or electronic network;

● ELECTRONIC SERVICE PROVIDER

Sec 2(17) "electronic service provider" means a person who provides
technologies or processes to enable a product seller to engage in
advertising or selling goods or services to a consumer and includes any
online market place or online auction sites.

● GOODS
Sec 2(21) "goods" means every kind of movable property and includes
"food" as defined in clause (j) of sub-section (1) of section 3 of the Food
Safety and Standards Act, 2006 (34 of 2006);

● PRODUCT LIABILITY
Sec 2(34) "product liability" means the responsibility of a product
manufacturer or product seller, of any product or service, to compensate for
any harm caused to a consumer by such defective product manufactured
or sold or by deficiency in services relating thereto;

● RESTRICTIVE TRADE PRACTICE

Sec 2(41) "restrictive trade practice" means a trade practice which tends to
bring about manipulation of price or its conditions of delivery or to affect
flow of supplies in the market relating to goods or services in such a
manner as to impose on the consumers unjustified costs or restrictions and
shall include--
(i) delay beyond the period agreed to by a trader in supply of such goods or
in providing the services which has led or is likely to lead to rise in the
price;
(ii) any trade practice which requires a consumer to buy, hire or avail of any
goods or, as the case may be, services as condition precedent for buying,
hiring or availing of other goods or services;

● SERVICE
Sec 2(42) "service" 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, telecom, boarding 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;
 ● UNFAIR TRADE PRACTICE
(47) "unfair trade practice" means a trade practice which, for the purpose of
promoting the sale, use or supply of any goods or for the provision of any
service, adopts any unfair method or unfair or deceptive practice including
any of the following practices, namely-
(i) making any statement, whether orally or in writing or by visible
representation including by means of electronic record, which--
(a) falsely represents that the goods are of a particular standard, quality,
quantity, grade, composition, style or model;
(b) falsely represents that the services are of a particular standard, quality
or grade;
(c) falsely represents any re-built, second-hand, renovated, reconditioned
or old goods as new goods;
(d) represents that the goods or services have sponsorship, approval,
performance, characteristics, accessories, uses or benefits which such
goods or services do not have;
(e) represents that the seller or the supplier has a sponsorship or approval
or affiliation which such seller or supplier does not have;
(f) makes a false or misleading representation concerning the need for, or
the usefulness of, any goods or services;
(g) gives to the public any warranty or guarantee of the performance,
efficacy or length of life of a product or of any goods that is not based on an
adequate or proper test thereof:
Provided that where a defence is raised to the effect that such warranty or
guarantee is based on adequate or proper test, the burden of proof of such
defence shall lie on the person raising such defence;
(h) makes to the public a representation in a form that purports to be–
(A) a warranty or guarantee of a product or of any goods or services; or
(B) a promise to replace, maintain or repair an article or any part thereof
or to repeat or continue a service until it has achieved a specified result, if
such purported warranty or guarantee or promise is materially misleading
or if there is no reasonable prospect that such warranty, guarantee or
promise will be carried out;
(i) materially misleads the public concerning the price at which a product or
like products or goods or services, have been or are, ordinarily sold or
provided, and, for this purpose, a representation as to price shall be
deemed to refer to the price at which the product or goods or services has
or have been sold by sellers or provided by suppliers generally in the
relevant market unless it is clearly specified to be the price at which the
product has been sold or services have been provided by the person by
whom or on whose behalf the representation is made;
(j) gives false or misleading facts disparaging the goods, services or trade
of another person.
Explanation.--For the purposes of this sub-clause, a statement that is,--
(A) expressed on an article offered or displayed for sale, or on its
wrapper or container; or
(B) expressed on anything attached to, inserted in, or accompanying,
an article offered or displayed for sale, or on anything on which the article is
mounted for display or sale; or
(C) contained in or on anything that is sold, sent, delivered, transmitted
or in any other manner whatsoever made available to a member of the
public,
shall be deemed to be a statement made to the public by, and only by, the
person who had caused the statement to be so expressed, made or
contained;
(ii) permitting the publication of any advertisement, whether in any
newspaper or otherwise, including by way of electronic record, for the sale
or supply at a bargain price of goods or services that are not intended to be
offered for sale or supply at the bargain price, or for a period that is, and in
quantities that are, reasonable, having regard to the nature of the market in
which the business is carried on, the nature and size of business, and the
nature of the advertisement.
Explanation.--For the purpose of this sub-clause, "bargain price" means,--
(A) a price that is stated in any advertisement to be a bargain price, by
reference to an ordinary price or otherwise; or
(B) a price that a person who reads, hears or sees the advertisement,
would reasonably understand to be a bargain price having regard to the
prices at which the product advertised or like products are ordinarily sold;
(iii) permitting--
(a) the offering of gifts, prizes or other items with the intention of not
providing them as offered or creating impression that something is being
given or offered free of charge when it is fully or partly covered by the
amount charged, in the transaction as a whole;
(b) the conduct of any contest, lottery, game of chance or skill, for the
purpose of promoting, directly or indirectly, the sale, use or supply of any
product or any business interest, except such contest, lottery, game of
chance or skill as may be prescribed;
(c) withholding from the participants of any scheme offering gifts, prizes or
other items free of charge on its closure, the information about final results
of the scheme.
Explanation.--For the purpose of this sub-clause, the participants of a
scheme shall be deemed to have been informed of the final results of the
scheme where such results are within a reasonable time published,
prominently in the same newspaper in which the scheme was originally
advertised;
(iv) permitting the sale or supply of goods intended to be used, or are of a
kind likely to be used by consumers, knowing or having reason to believe
that the goods do not comply with the standards prescribed by the
competent authority relating to performance, composition, contents, design,
constructions, finishing or packaging as are necessary to prevent or reduce
the risk of injury to the person using the goods;
(v) permitting the hoarding or destruction of goods, or refusal to sell the
goods or to make them available for sale or to provide any service, if such
hoarding or destruction or refusal raises or tends to raise or is intended to
raise, the cost of those or other similar goods or services;
(vi) manufacturing of spurious goods or offering such goods for sale or
adopting deceptive practices in the provision of services;
(vii) not issuing bill or cash memo or receipt for the goods sold or services
rendered in such manner as may be prescribed;
(viii) refusing, after selling goods or rendering services, to take back or
withdraw defective goods or to withdraw or discontinue deficient services
and to refund the consideration thereof, if paid, within the period stipulated
in the bill or cash memo or receipt or in the absence of such stipulation,
within a period of thirty days;
(ix) disclosing to other person any personal information given in confidence
by the consumer unless such disclosure is made in accordance with the
provisions of any law for the time being in awareness

Consumers rights guaranteed under Consumer

Protection Act, 2019
Consumers have the following six consumer rights under the Act:

● Right to safety
● Right to be informed
● Right to choose
● Right to be heard
● Right to seek redressal
● Right to consumer awawareness

Central Consumer Protection Authority

The Central Government shall establish a Central Consumer Protection

Authority which is known as the Central Authority under Section 10 of the
Consumer Protection Act, 2019, to regulate matters relating to violation of
the rights of consumers, unfair trade practices and false or misleading
advertisements which are prejudicial to the interests of the public and
consumers and to promote, protect and enforce the rights of consumers.
The Central Government will appoint the Chief Commissioner and the other
Commissioners of the Central Authority as required under the Act.

The Central Authority must have an ‘Investigative Wing’ under Section 15

of the Act to conduct an inquiry or investigation. The investigative wing
must comprise of the Director-General and the required number of
Additional Director-General, Director, Joint Director, Deputy Director and
Assistant Director possessing the required experience and qualifications to
carry out the functions under this Act.

Functions and duties of the Central Authority

The functions and responsibilities of the Central Authority are laid down in
Section 18 of the Act which includes;

[Link] protect and promote the rights of the consumers as a class and to
prevent violation of consumer rights,

[Link] prevent unfair trade practices,

[Link] ensure no false or misleading advertisements regarding any goods or

services are promoted,

[Link] ensure no person takes part in false or misleading advertisements,

[Link] or investigate in cases of violation of consumer rights or unfair

trade practices.

[Link] complaints before the National, State or District Commission as the

case may be,

[Link] review matters relating to the factors hindering the enjoyment of

consumer rights.

[Link] recommend the adoption of international covenants and best

international practices concerning consumer rights

[Link] research and awareness of consumer rights.

[Link] down necessary guidelines to prevent unfair trade practices and

protect the interests of the consumers.
Furthermore, the Central Authority also has the power to investigate after
receiving any complaint or directions from the Central Government or of its
own motion in cases where there is an infringement of consumer rights or
unfair trade practices are carried out. And if the Central Authority is
satisfied that infringement of consumer rights or unfair trade practices has
occurred then it may:

● Recall the goods or services which are hazardous and detrimental to

the consumers,
● Reimburse the prices of the goods and services to the consumers,
and
● Discontinue the practices that are prejudicial and harmful to the
consumers.
Under Section 21 of the Act, the Central Authority is authorised to issue
directions to false and misleading advertisements which may extend to ten
lakh rupees. While determining the penalty of the offence the Central
Authority must keep in mind factors such as; the population affected by the
offence, frequency of the offence and gross revenue from the sales of such
product. The Central Authority can also direct search and seizure for the
purposes of this Act and in that case the provisions of the Criminal
Procedure Code, 1973 will apply.

Consumer disputes redressal commission

The state government shall establish a District Consumer Disputes

Redressal Commission, known as the District Commission in each district
of the state under the Consumer Protection Act, 2019. The District
Commission shall comprise of a President and not less than two members
prescribed by the Central Government.
Section 34 of the Act authorises the District Commission to entertain
complaints where the value of the goods or services paid as consideration
does not exceed one crore rupees. The complaint relating to goods and
services can be filed to the District Commission by the consumer,
recognized consumer association, Central Government, Central Authority,
State Government, etc.
Section 36 states that all the proceedings before the District Commission
shall be conducted by the President and at least one member of the
commission.

Mediation
Sections 74-81 of Chapter 5 of the Consumer Protection Act, 2019 deals
with the provision of Mediation.
Section 74 of the Consumer Protection Act, 2019 states that a Consumer
Mediation Cell shall be established by the Central Government at the
national level and every state government shall establish Consumer
Mediation Cell exercising within the jurisdiction of that state. The mediator
nominated to carry out the mediation shall conduct it within such time and
in such manner as may be specified by regulations.
Section 75 of the Act talks about the empanelment of the mediators. It
states the qualifications, terms and conditions of service, the procedure for
appointing, and the fee payable to the empanelled mediators.
It is the duty of the mediator to disclose certain facts such as; any personal,
financial or professional in the result of the consumer dispute, the
circumstances giving rise to their independence or impartiality and any
other necessary information for the protection of consumer rights.

Product liability
Sections 82-87 of Chapter 6 of the Consumed Protection Act of 2019 deals
with the provision of Product liability.
Under Section 83 of the Act, a product liability action may be brought by a
complainant against a product manufacturer, product service provider or
product seller.

Section 84. Liability of product manufacturer

A product manufacturer will be held liable in a product liability action under
the following circumstances:
● The product contains manufacturing defects.
 ● The product is defective.
● There is a deviation from manufacturing specifications.
● The product does not conform to the express warranty.
● The product fails to contain adequate information for proper usage.

Section 85. Liability of product service provider

A product service provider will be held liable in a product liability action
under the following circumstances:
● The service provider will be responsible when the service provided by
them is faulty or imperfect.
● There was an act of negligence on their part.
● The service provider failed to issue adequate instructions and
warnings for the services.
● The service provider failed to conform to the express warranty or
terms and conditions of the contract.

Section 86. Liability of product seller

A product seller will be held liable in a product liability action under the
following circumstances:
● They altered or modified the product which resulted in being
detrimental to the consumer.
● They failed to exercise reasonable care in assembling, inspecting or
maintaining such product
● They exercised substantial control over the product which resulted in
causing harm to the consumer.

Section 87. Exceptions to product liability

There are certain exceptions to product liability such as;
● The product was altered, modified or misused by the consumer,
● A consumer cannot bring product liability action when the
manufacturer has given adequate warnings and instructions for the
use of the product,
● The manufacturer would not be liable in case of a product liability
action for not warning about any danger that is commonly known to
the general public.
Offences and penalties under Consumer Protection
Act, 2019

[Link] for false and misleading advertisements: Under Section

89 of the Act any manufacturer or service provider who promotes false or
misleading advertisements will be punished with imprisonment for a term
that may extend to two years and with fine that may extend to ten lakh
rupees.
[Link] for manufacturing, selling, distributing products
containing adulterants: Under Section 90 of the Consumer Protection
Act, 2019 any person who sells, manufactures, distributes products
containing adulterants shall be penalised in case of the following
circumstances;
● If the adulterated product does not cause any injury to the consumer
then the term for imprisonment will extend to a period of six months
and fine which may extend to one lakh rupees,
● If the product containing adulterant causes injury not amounting to
grievous hurt then the term for imprisonment will extend to a period of
one year and fine which may extend to three lakh rupees,
● If the product containing adulterant causes injury amounting to
grievous hurt then the term for imprisonment will extend to a period of
seven years and fine which may extend to five lakh rupees,
● If the product results in causing death to the consumer then the term
for imprisonment will be for a period of seven years which may
extend to life imprisonment and fine not less than ten lakhMediation
[Link] for manufacturing, selling, and distributing spurious
products: Section 91 states that any person who sells, manufactures, or
distributes spurious products shall be punished for such acts.