LAW OF TORTS

c.p. Gum*

T H E YEAR WITNESSED significant developments—both legislative and

judicial'—in the area of law of torts. The long awaited bill on the
liability of the state for the torts of its employees was introduced in
Parliament. In the judicial sphere, apart from a number of cases
decided by the High Courts on various aspects of the law of torts, there
have been four important decisions by the Supreme Court. Even this
number is significant in view of the remote chances a case in torts has to
reach the Supreme Court. 1
In the absence of codified law in torts, there is a danger that the
development of the law of torts may proceed in different directions under
various High Court jurisdictions. Uniformity is desirable in the interest
of certainty and this can be attained only through the Supreme Court.
Again, it is through the authoritative pronouncements of the highest
court that our law can be freed from its dependence on the english
common law in which it is steeped today. This will be possible only
if the High Courts are more liberal in granting the certificate required
to have recourse to the Supreme Court.

II. STATE LIABILITY FOR THE TORTS OF ITS EMPLOYEES

The most important decision on the subject this year has been that
of the Supreme Court in Kasturi Lai v. State of U.P2 The judgment
draws pointed attention to the disturbing fact that under the existing law,
a citizen whose property was seized by the employees of the State could
not seek any remedy in a court of law. The Court has emphasised the
need for an early legislative action on the Law Commission's report on
Liability of the State in Tort.3 It has reminded that even the historical
immunity of the Crown in England, on which was based the immunity
of the State in India, has been substantially altered there by the Crown
Proceedings Act of 1947, and hence there was no justification at all for the
continuance of the unsatisfactory state of the law in this country,
* Reader, Faculty of Law, University of Delhi, Delhi.
1. Under article 133, an appsal lies to the Supreme Court in a civil proceeding
either on a certificate by the High Court that the case involves a substantial question
of law or if the value of the subject-matter involved is not less than rupees twenty
thousand.
2. AJ.R. 1965 S.C. 1039.
3. Law Commission of India, First Report: Liability of the State in Tort (1956).

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 LAW OF TORTS 179

The facts of the case may briefly be recalled here. Mr. Ralia Ram
a partner in the appellant firm, came to Meerut from Amritsar with
about 103 tolas of gold and about 2 maunds and 6 | seers of silver
with a view to sell the same. He was arrested by three constables and his
belongings were searched. Later, he was taken to the Kotwali where
his belongings were seized and he was detained in the lock-up. Next
day, he was released on bail and some time latter the silver seized from
him was returned. But inspite of his repeated demands, the police
authorities failed to return the gold seized from him. He, therefore
filed a suit against the State of U.P. claiming the return of the gold or'
in the alternative, the full price of the precious metal. The claim was
resisted by the State mainly on the grounds that the gold had been seized
by a Head Constable who put it in the Malkhana under his charge but
misappropriated it from there and migrated to Pakistan and inspite
of the best efforts of the police could not be apprehended. The respon­
dents pleaded that it was not a case of negligence of police officers and
in any case, the respondent State could not be held liable for such
negligence.
The Supreme Court, speaking through Gajendragadkar, C.J.,
unanimously held that there was negligence on the part of the police
officers concerned in so far as they did not carry out their duties enjoined
by the U.P. Police Regulations in taking care of the property in the
Police Malkhana. But the Court, after a review of the constitutional
provisions and the relevant decisions, held that the respondent State was
not liable for the negligence of the public servants because the tortious
act was committed by the publi c servants in the discharge of their statutory
functions which were referable to and ultimately based on the delegation
of the sovereign powers of the State to the public servants. The Court
observed that in all such claims the courts have to determine whether the
impugned act was committed in the course of an undertaking or employ­
ment which is referable to the exercise of sovereign powers. The Court
admitted that this aspect of the matter was not emphasised in its earlier
judgment in State of Rajasthan v. Mst. Vidhyawati.* Gajendragadkar, C.J.,
however, distinguished the earlier case on facts since the negligent act
in driving the jeep car from the workshop to the Collector's bungalow for
the Collector's use, out of which arose in that case the claim for damages
could not claim the status of an act in the exercise of sovereign power.
Explaining further the facts in the Vidhyawati case, he added that the
employment of a driver to drive the jeep car for the use of a civil servant
was an activity not connected in any manner with the sovereign power
of the State. Emphasising the distinction between sovereign and non-
sovereign activities of the State, the Chief Justice observed:

It is not difficult to realise the significance and importance of making such a

4. A.I.R. 1962 S.C. 933.

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180 ANNUAL SURVEY OF INDIAN LAW

distinction particularly at the present time when, in pursuit of their welfare

ideal, the Government of the States as well as the Government of India
naturally and legitimately enter into many commercial and other under­
takings and activities which have no relation with the traditional concept of
governmental activities in which the exercise of sovereign power is involved.
It is necessary to limit the area of those affairs of the state in relation to
the exercise of sovereign power, so that if acts are committed by Govern­
ment employees in relation to other activities which may be conveniently des­
cribed as non-governmental or non-sovereign, citizens who have a cause
of action for damages should not be precluded from making their claim
against the State. That is the basis on which the area of the State immunity
against such claims must be limited; this is exactly what has been done
by this Court in its decision in the case of State of Rajasthan 5
This decision of the Supreme Court was not likely to b e popular a n d
has been criticised by some. 6 But the critics seem to have ignored a
n u m b e r of factors. T h e mess created by a l o n g series of decisions o n the
subject could not be cleared u p by a single decision of the Supreme Court.
T h e decision in the Vidhyawati case was not intended to and could not
have altogether done away with the distinction between sovereign a n d
non-sovereignactivitiesof the State. T h e need for a clear enunciation of
the areas of activities in which the State was to be liable for the wrongful
acts of its employees a n d the areas in which it was not to be so liable was
obvious in the present context. T h e question was whether this was to
be left to the dubious method of judicial legislation or was to be done
through legislative enactment as recommended by the Supreme Court.
Certainly, a direct a p p r o a c h to the problem was preferable. Not only
E n g l a n d b u t the U n i t e d States a n d some other countries have done so.
T h e difficulties encountered in these countries in the interpretation of
their statutes cannot b e used as a n argument against statutory changes
in I n d i a . I t only means t h a t we can and should benefit by the experience
of others a n d avoid in t h e proposed legislation the possible causes of
difficulty. I n this connection, the labours of Law Commission in pre­
p a r i n g its first report a n d of the law ministry in giving shape to the
desired legislation do not seem to have gone in vain.
I n Chetty & Co. v. Collector of Anantpur7 the A n d h r a Pradesh High
Court considered the question of the State's liability for.an illegal act
of a government employee, the Tehsildar, in wrongly applying the
procedure for the attachment of immovable property to the attach­
ment of movable goods and thereby causing considerable damage to the
plaintiffs. The Court came to the conclusion that the Government
was not liable for any wrong done by a public official in the purported
exercise of his statutory duties in the area of sovereign activities of the
5. Supra note 2, at 1048.
6. For example, Dr. Alice Jacob in a comment on the case is critical of the deci­
sion and has regretted that the healthy trend started by the Vidhyawati case has been
reversed. See 7 J.I.L.I 247 (1965).
7. A.I.R. 1965 A.P. 457.

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 LAW OF TORTS lSl

State. It held that since the collection of revenues was a sovereign or

purely governmental activity, the Government was not liable for any
tort committed by a government employee in the course of such activity
in breach of his statutory duties.
It will be seen that the facts in this case were similar to those in the
Kasturi Lai case. In both the cases, the activity involved was that has
come to be known as "governmental" as contrasted with "commercial."
In one case, it was the exercise of supervisory jurisdiction by higher
officers over the activities of the lower while in the other, it was the
collection of revenues for the State. In both the cases? statutory duties
had been enjoined upon the concerned officials and in both there was
a breach of such duties. It is not surprising, therefore, that the two
judgments should have been similar. In both, the decision in the
Vidhyawati case was explained and distinguished essentially on the ground
that the activity involved in tht case, viz,9 the driving of the jeep car
from the workshop to the Collector's office was not a sovereign or govern­
mental activity. The Andhra Pradesh High Court too referred to the
hardships suffered by the citizens under the existing law and emphasised
the need for an early statutory modification of the law.
In the two other cases, viz., State of Punjab v. Mjs Modem Culti-
vators8 and Ramesh v. Union of India,9 damages were granted, by the
Supreme Court in the former and the Patna High Court in the latter,
against the State for the tortious acts of its employees. But since both
these cases involved governmental activity which has been regarded as
non-sovereign or commercial, viz., opening and maintaining the irri­
gation canals in the former and running the railways in the latter, there
was naturally no discussion by the respective courts on the scope of
governmental liability: the liability was presumed.

III. LIABILITY OF THE GOVERNMENT SERVANTS

An important question considered by the courts was the liability

of the government servants for their tortious acts committed in the
purported exercise of their official duties. In Anowar Hussain v. Ajoy
Kumar,10 the Supreme Court considered the question of the liability of
a government servant who was vested with both judicial and exe­
cutive powers and was alleged to have committed jhe_tort of false im­
prisonment while acting in his executive capacity. According to the
allegations of the plaintiff-respondent, his arrest was ordered by the
appellant, Anowar Hussain, because as an active member of the Peace
Committee formed by the State Government to restore harmony between
the two communities, he had incurred the displeasure of the appellant

8. A.LR. 1965 S.C. 17.

9. A.I.R. 1965 Pat. 167.
10. AJ.R. 1965 S.C. 1651.

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182 ANNUAL SURVEY OF INDIAN LAW

who was the sub-Divisional Officer and Chairman of the Peace Committee*
O n the basis of a chit issued by the appellant, the respondent, Ajoy
Kumar, was arrested by the Circle Inspector of Police. No case was
ever registered at the police station against the respondent noi was there
any trace of an F.I.R. The respondent filed a suit for false imprisonment
against the appellant, the Circle Inspector of Police and the State of
Assam. The trial judge found the arrest of the respondent to have been
reckless and without any lawful excuse andgrantedRs. 5,000/- as damages
for false imprisonment against the appellant but dismissed the suit against
the other defendants. In the High Court, the decree of the trial court
was upheld.
O n appeal, the Supreme Court unanimously came to the conclusion
that in the absence of any formal complaint lodged before the appellant
charging the respondent with having committed any offence under the
Penal Code, the appellant's action could not be deemed to have been
in his judicial capacity as a Magistrate, and hence the protection afforded
by the Judicial Officers' Protection Act, 1850 11 was not available to him.
Elucidating the scope of the protection afforded by that Act to judicial
officers, Shah, J., observed:

The statute, it must be noticed, protects a Judicial Officer only when he is

acting in his judicial capacity and not in any other capacity. But within
the limits of its operation it grants large protection to Judges and Magistrates
acting in the discharge of their judicial duties. If the act done or ordered to
be done in the discharge of judicial duties is within his jurisdiction, the
protection is absolute and no inquiry will be entertained whether the act done
or ordered was erroneously, irregularly or even illegally, or was done or
ordered without believing in good faith, that he had jurisdiction to do or
order the act complained of. If the act done or ordered is not within
the limits of his jurisdiction, the Judicial Officer acting in the discharge
of his judicial duties is still protected, if at the time of doing or ordering the
act complained of, he in good faith believed himself to have jurisdiction to
do or order the act. The expression "jurisdiction'* does not mean the
power to do or order the act impugned, but generally the authority of the
Judicial Officer to act in the matter :12

In Kader v. Alagarswami,lz the Madras High Court held that where

a public officer, like a sub-inspector of Police, exceeded and abused his
authority by getting an undertrial indoor patient in a hospital hand-

11. Section 1 of the Act, in parts, reads:

No Judge, Magistrate, Collector or other person acting judicially shall be liable
to be sued in any civil court for any act done or ordered to be done by him in the
discharge of his judicial duty whether or not within the limits of his jurisdic-
tion : provided that he at the time, in good faith, believed himself to have juris-
diction to do or order the act complained of.
12. Supra note 10, at 1653-54. In the appeal, the Court was concerned only with
the liability of the appellant and hence the question of the liability of the inspector of
police and the Government was not considered,
13. A.LR. 1965 Mad. 438.

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 LAW OF TORTS 183

cuffed and chained to a window bar like a ferocious animal, he was

liable to pay damages for trespass on person. The Court further held
that in a case of that nature it was not necessary for the plaintiff to prove
any particular intention or motive on the part of the defendant to wreck
vengeance on the plaintiff.
In Chetty & Co, v. Collector of Anantpur** the Andhra Pradesh
High Court considered the question as to how far a public official, like
the Tehsildar, was -liable as such, i.e. as a Tehsildar, to a plaintiff for
causing considerable damage to him by wrongly applying the procedure
for the attachment of immovable property to the attachment of movable
goods, and also as to how far the public officer under whom the erring
official was working was liable as a public officer, i.e. as Collector, for
the wrong done by the subordinate without any specific orders from
him. In both these matters, the Court came to the conclusion, after
referring to the relevant English and Indian authorities, 15 that no
government officer could be made liable in his public capacity unless
made a corporation sole under the relevant statute. The case against
the Collector was also rejected on the additional ground that the latter
had not authorised the Tehsildar to effect the attachment in the illegal
manner.

IV. TRESPASS

A. Trespass to the Person

In Kader v. Alagarswami91Q the Madras High Court held that where

a public officer exceeded and abused his authority by getting an under-
trial indoor patient in a hospital hand-cuffed and chained to a window
bar, he was liable for trespass upon person. The Court expressed the
view that in tort of that character it was not necessary to attribute and
prove motive or a particular intention and that the act would be pre­
sumed to be malicious and malafide unless it could be plausibly contended
that the circumstances justified the use of power.
The facts of this important case may briefly be stated. The appel­
lant, a sub-inspector of police, arrested the respondent-plaintiff on a
charge of inflicting injuries on a third person and presented him before
a sub-magistrate who remanded the accused to jail custody. Immediately
after his removal to the jail, the plaintiff complained of a severe attack
of colic and was admitted to a government hospital. While undergoing
treatment, he was hand-cuffed and chained to a window bar by the

14. Supra note 7.

15. Raleigh v. Goshen, (1889) 1 Ch.D. 73; Bainbridge v. Post Master General,
(1906) 1K.B, 178; Sheriff of Bombay \. Hakamji Mota li & Co., A.LR. 1927 Bom.
521; P.B. Shah & Co. v. Chief Executive Officer, AJ.R. 1962 Cal. 283.
16. Supra note 13.

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 184 ANNUAL SURVEY OF INDIAN LAW
sentry on guard under the order of the appellant-defendant, and it was
on the intervention of a visiting doctor that the hand-cuffs and chain
were removed. He was tried on a charge under section 307 of the Indian
Penal Code but was acquitted. Upon his acquittal, the plaintiff sued
the sub-inspector for damages. The trial court dismissed the claim.
The High Court on appeal allowed the claim.
From the judgment of the High Court, it is not clear whether the
case was treated as one of assault, battery or false imprisonment. Ex­
cept for references to the opinions of Fleming 17 and of Clerk and Lindsell18
and the case of Mewell v. Starke,1® the judgment cites no particular
authority. The case mentioned, however, does not deal with the wrong
involved. No doubt Clerk and Lindsell do state that "no greater restraint
may be placed on a prisoner than is necessary for his safe detention.
If there be reasonable apprehension of a rescue or escape he may be
hand-cuffed, but not otherwise.3320 But the authority mentioned by the
learned authors, viz., Wright v. Court,21 does not quite support the pro­
position. In the Wright case^ the fact of the prisoner being handcuffed
was mentioned but the case really was one in which the authorities had
detained the plaintiff for an unreasonably long period without any
legal justification. Be that as it may, the Madras High Court has made
a bold attempt to make actionable a wrong affecting security of the per­
son and human dignity.

B. Trespass to Immovable Property

In Mahinder Singh v. Nihal Kaur2% the Punjab High Court held
that an allottee of evacuee land (plaintiff-respondent) over which she
had built a house was entitled to recover damages from the defendant-
appellant for the unauthorised use and occupation of the building. Rejec­
ting the plea on behalf of the appellant that the status of an allottee of
evacuee land was only that of a licensee, the Court held that the respon­
dent as an allottee of evacuee land was entitled to remain in occupation
of the land and the building constructed thereon and hence was entitled
to damages for the unauthorised use and occupation by the appellant-
defendant.

C. Trespass to Chattel $
In Kanhaiya Lai v. Badri Lal2Z the Rajasthan High Court held
that in case of trespass on chattel the cause of action was the act of
17. Fleming, Law of Torts (2nd ed. 1961).
18. Clerk & Lindsell, Torts (11th ed. 1954).
19. (1919) 89 L.J.P.C. 1.
20. Supra note 18, at 308.
21. 28R.R.418.
22. AJ.R. 1965 Punj. 119.
23. AJ.R. 1965 Raj. 121.

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 LAW OF TORTS 185

taking away the chattel and that it was irrelevant as to what happened
to the chattel after the date of trespass. Further, the right of the plaintiff
to claim damages arose as soon as the trespass had been committed.
In the facts of the case, two she-buffaloes with a calf belonging to the
plaintiff-appellant had been entrusted to B and G for grazing purposes.
The defendants in execution of a money-decree against B and G attached
the cattle knowing fully well that the cattle belonged to the plaintiff.
The cattle subsequently died. In an action by the plaintiff to recover
the market price of the chattel, the defendant took the pleas that it had
not been proved that in getting the chattel attached the defendant was
actuated by any malice and that the only remedy to which the plaintiff
was entitled, viz., the return of the chattel, could not be made available
as the chattel had perished through no fault of the defendant. Rejec­
ting these pleas, the High Court observed that it was for the defendant to
take due care and caution in making the attachment and if he was instru­
mental in attaching property of a third person he was answerable for
tort in trespass and that even an honest but mistaken belief of the de­
fendant was not excusable. As regards the plea about the remedy of
the plaintiff, the Court held that it was the option of the plaintiff to
claim the price of the chattel or to claim damages for wrongful detention
and non-delivery of the chattel.

V. NEGLIGENCE

In State of Punjab v. MJs. Modern Cultivators,24 the Supreme Court

has, in the first case of its kind in the country, settled principles of
considerable public importance. With a wide net of irrigation canals
in the country, there is always a risk of injury to the crops and property
of the cultivators from the waters of the canals escaping to the fields
through the breaches in the embankments. The Supreme Court in this
case laid down rules of guidance for the settlement of disputes arising
out of such a situation.
The facts of the case were that a wide breach was caused in the
Western Jumna Canal and was not repaired for quite some time. The
escaping waters of the canal innundated thefieldsof the plaintiffs causing
considerable loss to their crops estimated by them at Rs. 60,000/-. The
plaintiffs sued the defendants for a sum of Rs, 20,000/- on the ground
that the loss had been caused due to the negligence of their employees.
In spite of the insistence of the trial court upon the production of the
official records relating to the breach, the authorities failed to produce
the same. The Court decreed the suit for the claimed amount. On
appeal^ the Punjab High Court reduced the amount of damages to
Rs. 14,130/-. The defendants appealed to the Supreme Court on the
ground that their negligence had not been established. The plaintiffs

24. Supra note 8.

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 186 ANNUAL SURVEY OF INDIAN LAW

cross-appealed for restoration of the damages to the amount decreed by

the trial court.
Sarkar, Hidayatullah and Mudholkar, JJ., in their separate but
concurring judgments, rejected with cost the appeal of the State of
Punjab and accepted the cross-appeal of the respondents. Two of their
Lordships inferred negligence on the part of the appellant-defendants
from their failure to produce the relevant records which they believed
was deliberate as it would have established the negligence of the Govern­
ment employees. Sarkar, J., applied the rule of res ipsa loquitur also
and held that the defendants had failed to prove that they were not negli­
gent. The other two Judges, however, thought that the rule of res ipsa
loquitur had no application in the facts of the case. All the three Judges
considered the applicability of the rule in Rylands v. Fletcher2** but
thought, for different reasons, that the same did not apply. Sarkar, J.,
thought that in view of the proved negligence it was not necessary to
consider if the rule applied. Hidayatullah, J., was of the view that since
the rule applied only in case of non-natural user of premises and cons­
truction of canals was not so, the rule had no application. Mudholkar,
J., held that the rule had no application because the canals
were constructed under the powers conferred by Northern India
Canals and Drainage Act, 1873, and it was well established in the
land of the origin of the rule that it did not apply where the owner or
occupier accumulates a deleterious substance under the authority of a
statute.
The Supreme Court decision in the case can be regarded as a land­
mark in the development of law of torts in the country. There has been
in the judgment a slight deviation from the established practice in cases
on negligence that the burden of proving negligence of the defendant
is on the plaintiff unless the onus is shifted on to the defendant by virtue
of the rule of res ipsa loquitur. The Court has warned that negligence
may be presumed from non-production of the relevant documents if the
same was considered to be deliberate. This is likely to discourage the
tendency of suppressing the records and thus hindering the courts from
arriving at a fair decision.
In Ramesh v. Union of India26 the Patna High Court dealt with the
duty of the Government in regard to railway level crossings, scenes of
many a tragic loss. The Court held that when there is a level-crossing
at which vehicular traffic is passing and which is near a busy railway
station, it is the duty of the railways either to fix a gate or chain or at
least to post a man to warn the drivers of the vehicles of an approach­
ing train. The respondents sought to draw a distinction between a
level-crossing where a gate had been provided casting a duty on the
railway employees to close it on approach of a train, and the level cros-
25. (1868) L.R. 3 H.L. 330.
26. Supra note 9.

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 LAW OF TORTS 187

sing where no gate had been provided and hence a duty cast on those
crossing the line to be careful about an approaching train. The Court
did not accept it and observed that "where a railway line crosses a busy
road at such a point that the incoming train is not visible due to house
and bridge until the passer is on the railway track, there is no question
of contributory negligence inasmuch as the first duty in such a case is
cast on the railway authorities." 27 Since, in the facts of the case, the
incoming train was not visible because of the piling up of the building
material on the sides of the track, and the accident causing damage to
the truck of the plaintiff-appellants by a shunting engine had taken
place because of this fact, the Court had no difficulty in accepting
the appeal and restoring the judgment of the trial court granting com*
pensadon to the plaintiff.
In Airlines Corporation v. Madhuri Chowdkuri2S a Division Bench of
the Calcutta High Court considered the question as to how far an air
passenger on the internal airlines could contract out of his right to
recover damages for the injury suffered through the negligence of
the Corporation's employees, and as to how far the dependents of the
passenger were precluded by such a contract from recovering damages
under the Fatal Accidents Acts, 1855, in the event of the death of the
passenger.
In this case, the plaintiff's husband, an air passenger on the inter­
nal airlines, was killed in a tragic air crash at Nagpur shortly after the
plane took off. In an action against the defendant Corporation, the
plaintiff, on her own behalf and on behalf of her minor children, claim­
ed damages for the breach of the agreement of carriage to take the passen­
ger safely to his destination, and in the alternative, demanded damages
under the Fatal Accidents Act, 1855, for the tort of breach of duty to
take care resulting in the fatal accident to her husband. The defendant's
plea was that the ticket had been sold to the passenger subject to a condi­
tion printed on the ticket itself and brought to the notice of the passenger
which exempted the Corporation from liability for any loss suffered
by the passenger through the act, neglect or negligence of the carrier
or its employees.
Mallick, J., on the original side of the Calcutta High Court up­
held the claim of the plaintiff. But the Division Bench of the High
Court reversed the judgment. The appellate Court expressed the view
that the obligation imposed by law on common carriers in India was not
founded upon contract but on the exercise of public employment for
reward and hence the liability of the earners was not affected by the
Indian Contract Act, 1872. The Court further maintained that only
the Central Government by the appropriate notification could have
made the Carriage by Air Act of 1934 applicable to internal airlines
27. 7rf.atl70.
28. A.LR. 1965 Cal. 252.

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188 ANNUAL SURVEY OF INDIAN LAW

and the same could not be done by judicial legislation on grounds of

justice, equity and good conscience. In the absence of any applicable
statute, according to the Court, the rules of common law applied where-
under a person could validly give consent to suffer an injury through
the negligence of another. In the view of the Court, the exemption
clause in the contract 29 was quite valid and a complete bar to the plain­
tiff's claim for damages. As to the claim of the plaintiff under the Fatal
Accidents Act, 1855, the Court rightly pointed out that the basis of the
claim of the plaintiff was the right of the plaintiff's deceased husband.
If the deceased could not bring an action himself in case he had not died
in view of the exemption clause, there was no basis for the plaintiff's
claim.
On the merits of the case, the appellate Court held that there was
no negligence on the part of the defendant. As to the general appli­
cability of the rule of res ipsa loquitur to air accidents, the Court observed
that the same would depend upon the particular facts of the case. The
rule had no application in the facts of this case as the plaintiff had plea­
ded the particulars of negligence of the accident and the defendant
had proved that there was no negligence on its part.
On a strict legal view of the matter, the judgment of the Court
appears to be unexceptionable. But it does bring to light a serious
lacuna in the law. In England, the United States and many other
countries, special statutes have been passed extending the provisions of
the Geneva Convention on air travel not only to international air travel
but also to internal air travel and the traditional "exemption clause"
in air travel agreement has been done away with. In India, effect was
given to the Geneva Convention by the Carriage By Air Act of 1934
in the matter of international air travel. Although the Act does
empower the Central Government to extend by a notification the
provisions of the Act to internal air travel, it is rather surprising that
the same should not have been done till now. It is highly desirable
that the effect of the traditional exemption clause in the internal air
travel agreements is done away with by statutory rules at the earliest
so that those affected by the unfortunate air accidents are not depen­
dant only upon the ex gratia grants by the Airlines Corporation on a
uniforn? basis but can recover damages under the Fatal Accidents Act,
1855.

29. The exemption clause read as follows:

The carrier shall be under no liability whatsoever to the passenger, his/her heirs*
legal representatives or dependents or their respective assignees for death, injury
or delay to the passenger or loss, damage, detention or delay to his baggage or
personal property arising out of the carriage or any other services or opera­
tions of the Carrier whether or not caused or occasioned by the act, neglect or
negligence or default of the Carrier, or of pilot, flying, operational or other staff
or employees or agents of the Carrier, or otherwise howsoever.* ♦.

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 LAW OF TORTS 189

VI. DAMAGES

In Lotus Line Pvt. Ltd. v. State of Maharashtra^ the Supreme Court

considered the question of the quantum of damages when property was
damaged through the negligence of the wrongdoer. The question
involved was whether the liability of the defendant was to pay only
that amount of compensation which would render the damaged
property serviceable or was he under an obligation to pay an amount
sufficient to restore the property to as good a condition as it was before
the damage was done through the negligence of the defendant. The
Supreme Court approved the latter proposition.
The facts cf the case were that due to the negligence of the appel­
lant-defendants, their vessel mounted the Dharmatar jetty lying on the
Pen side of the creek. While dismounting the vessel, the jetty was badly
damaged. It was estimated that the cost of special repairs for the damage
done would be Rs. 16,400/-. The State of Maharashtra got done cer­
tain emergent repairs costing Rs. 2,783/- to make the jetty workable.
Later, the Government got some minor repairs effected costing about
Rs. 1,233/-. On the refusal of the defendants to pay the whole amount,
the State of Maharashtra filed a suit to claim the three amounts. The
trial court granted a decree only for the amount actually spent by the
Government mainly on the ground that the emergent repairs had put
the jetty in order and traffic was going on as usual. Rejecting the plain­
tiffs claim of Rs. 16,400/- for special repairs, the Court said that it had
not been proved that the special repairs to that extent were "absolutely"
necessary for the damaged portion of the jetty.
On appeal by the State to the High Court, the Court held that on
principle a plaintiff was entitled only to compensation and not resti­
tution. The terms used were not explained by the Court but it apparent­
ly took the same view as the lower court, viz., a party was entitled to
that compensation which would make the damaged property serviceable
but not the amount needed to restore it to as good a condition as it was
before the damage was done. Where it diffrered from the lower Court
was that principle did not apply in the case of a corporation or a trustee
charged with the maintenance of a highway or other public work. In
this exceptional case only, according to the High Court, the defendant
was bound to make restitution. On this basis., the High Court accepted
the appeal and modified the decree by awaiding Rs. 19,038-8-0.
The Supreme Court accepted the view of the English Court of
Appeal in the Wednesbury Corporation case 31 that a person to whom a
wrong is done is entitled to full compensation for restoring the thing
damaged to its original condition. The Court thereby impliedly dis-

30. A.I.R. 1965 S.C. 1314.

31. The Mayor, Wednesbury Corporation v, Lodge Holes Colliery Co. Ltd., (1907)
1 K,B, 78,

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190 ANNUAL SURVEY OF INDIAN LAW
agreed with the decision of the House of Lords in this very case.32
The Supreme Court did not agree with the distinction drawn in this
regard by the High Court between a private person and a corporation
or a trustee. The Supreme Court held that the respondents were en­
titled only to one sum of Rs. 16,400/-which was estimated to restore the
damaged property to as good a condition as it was before, and not to
the other two sums on account of emergent repairs and simple repairs.
It is submitted that although the principle lard down by the Supreme
Court is clear and sound, some of its observations with regard to com­
pensation on account of emergent and simple repairs are likely to be
misunderstood. It does not appear to be the intention of their Lord­
ships to reject the claim on that account if it had been a part of the origi­
nal estimate for repairs. In other words, if it had been estimated that
immediately a certain sum was to be spent to put the jetty in a workable
condition and to prevent it from further damage, and that subsequent­
ly an additional supplementary amount was needed to restore the jetty
to the condition in which it was before damage, it cannot be said cate­
gorically that it was the intention of the Court to reject such claim for
emergent repairs. However, the point needs a clarification and it is
hoped that the Court will do so at an early opportunity.

32. On appeal to the House of Lords, Lodge Holes Colliery Co.Ltd., v Mayor of
Wednesbury, (1908) A.C. 323.

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