Torts Notes

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LAW OF Torts
General Principles of Law of Torts (Osmania University)
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1. a) Define the term “tort” and distinguish it with Crime and Contract
b) Define ‘tort’ and explain the reasons for slow development of “Law of Torts” in India?
INTRODUCTION:
The word tort is a Latin term which means “twisting out” in its popular sense it means twisted
or unlawful'. The meaning for the term tort that is ‘twisted’ or ‘unlawful’ is equivalent to the
English word ‘wrong. This term tort was introduced into the English law by Norman jurist.
Generally, it is the duty of everyone to respect the legal rights of others. Whenever a person
violates his legal duty it amounts to wrongful act. And if that wrongful act caused injury to the
legal rights of others, then the aggrieved person can file a writ against him for damages. By
this we can understand that tort consists of wrong or unlawful acts which violates the legal
rights of a person, for which law provides remedy of un-liquidated damages.
Law of torts in India
In India the law of torts was introduced through British courts. It is a branch of English
common law. In India law of torts has not been successfully codified and it is still based on
common law of England, which have been applied by the Courts in India. In absence of
codified law, Indian Courts apply the rules of justice, equity, and conscience.
Reasons for slow development in INDIA
In India the process for development of law of torts started very late. The reason for such
delayed development was that the large part of the Indian population lives in villages. They
are poor and illiterate they have a little knowledge about their legal rights. Even though some
of the Indians have knowledge about their rights they do not prefer to go to Courts, under
these circumstances they use to keep quiet even though their valuable legal rights are
been violated. the cost of litigation in India is very high At the same time the Indian system of
justice is very expensive and dilatory. Such circumstances lead for slow development of the
law of torts in India in which we can find out the following reasons
A. UNCERTAINITY OF LAW.
B. LACK OF POLITICAL CONSCIOUSNESS.
C. ILLETERACY.
D. POVERTY.
E. EXPENSIVE AND DILATORY.
F. JUDICIAL SYSTEM.

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A. UNCERTAINITY OF LAW.
It is a well known fact that law of Torts is not a codified law and it is still developing due to
the uncodified law there is no uniformity uncertainty in its rules and doctrines. one of the
reasons for such uncertainty is lack of precedents and the precedents which are available in
England are not suitable to be applied in the Indian situations.
B. LACK OF POLITICAL CONSCIOUSNESS.
Due to lack of political consciousness and awareness most of the people are not aware of
their rights. Even some of the Indians where aware of their legal rights they do not have
courage to go to the courts and seek remedies against the violation of the rights. Another
important thing is in India emphasis is on the performance of one's duties rather than
assertion of rights.
C. ILLETRACY.
the main reason for ignorance of there right is due to illiteracy. Due to illiteracy they do not
have knowledge as well as courage to go to courts for remedy against violation of their
rights.
D. POVERTY.
Most of the population of India in economically backward and as a result of this they are not
capable of meeting the high cost of litigation for the enforcement of their rights. so poverty is
the factor for the less number of torts in India
E. EXPENSIVE AND DILATORY JUDICIAL SYSTEM.
Indian judicial system is dilatory and very expensive. The rate of court fee and the lawyer's
fee is very high, consequently, the poor may think that instead of going to the courts
suffering from violation of rights is a better thing.
RECENT TRENDS UNDER LAW OF TORTS
Inspite of above mentioned difficulties the law of torts in India is developing. The main
reason for this is expansion of education and political consciousness in the Indian society
about their rights. Another reason for their development is no court fee is charged on the
basis of valuation and the claims part from that there the rules which are applied by the
Indian Courts in India while dealing tort cases they are as follows.
A. RULE OF NO FAULT LIABILITY.
Under section 140 of the motor vehicles Act, 1988, on the recommendation of the law
commission, this rule no fault liability have been included. The purpose of including such a
rule in the act as to provide for payment of compensation in certain cases of accidents in
which there is no proof of fault or negligence on the part the owner or the driver of the motor
vehicle. According to this rule the owner of this vehicle involved in a accident will be liable to
pay compensation of a fix that sum of rupees 50000. In respect of the death of a person and
a fixed sum of 25000 in respect of permanent disable of a person.
B. RULE OF STRICT LIABILITY.
This rule has been laid down in a famous English case Ryland vs. Fletcher in the year 1968.
In this case the house of Lords has laid down the rule that a person who use his land for non

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natural purposes is responsible for the harmful consequences of other. Mostly such harm
may cause to others. When there is escape of things from defendant’s land and non-natural
use of land. But under this rule there are some exceptions such as act of God, act of a
stranger, mistake of plaintiff etc.
B. RULE OF ABSOLUTE LIABILITY.
The rule of strict liability which was laid down by the house of Lords has applied more
honestly by the Indian Supreme Court in MC Mehta vs Union of India case in the year
1987. the rule laid down MC Mehta case is known “as rule of absolute liability” at the time of
laying down this rule the supreme court held that, the rule of strict liability which was laid
down in the 19th Century did not fully meet the needs of a modern Industrial society. In order
to make the concrete one it laid down the rule of absolute liability. Under this rule there an
enterprise is engaged in a hazardous or inherently dangerous activities, and if any loss or
damage is then the enterprise is strictly and absolutely liable to pay compensation to all
those who are affected by such accident. While applying the rule of absolute liability no
exception as it was under the rule of strict liability may be given.
DEFINATION OF TORT
Due to various reasons, defining the term tort is a difficult task. The first among the so many
reasons are, the definition has to include great variety of a rights and duties. Another
difficulty is that the law of torts is not a codified law. And the second important reason is, it is
an ever growing law and the courts are expanding its horizon and scope continuously.
Inspite of these difficulties, many jurists have attempted to define the term tort. Some of the
leading definitions as well as criticism on those definitions is follows.
SALMOND
According to salmond “ Tort is a civil wrong for which the remedy in common law is action for
unliquidated damages, and which is not exclusively the breach of a contract or the trust or
the breach of other merely equitable obligations”.
The definition of Salmond for the term tort consists of the following three essential elements
a. Tort is a civil wrong.
b. This wrong is different from breach of contract.
c. This tort is redresseble by an action for unliquidated damages.
DEFINITION OF FRASER.
According to Fraser “ A tort is an infringement of right of a private individual giving a right of

compensation at the suit of the injured party”.
DEFINITION OF Dr. WINFIELD.
According to Dr. Winfield “ Tortious liability arises from breach of duty primarily fixed by the
law. This duty is towards persons generally and its breach is redressible by an action for
unliquidated damages”.
Like wise the definition of salmond for the term tort, Dr Winfield’s definition also consists the
following essential elements.

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a. Tortious liability arises from breach of duty fixed by law.
b. This duty is also towards persons generally.
c. Breach of duty is redressible by an action for unliquidated damages.
A. BREACH OF DUTY FIXED BY LAW.
Being a member of society a man is bound to observe certain duties made by the society
which are based on relief or
The duties are such as to give food to a man who is starve to save a man who is starving to
save a man who is drowning in a river etc. These are not to rules fixed by law and violation
of these duties does not amount to tort.
But there are some rulers which were fixed by law. For example, if a person makes a
defamatory statement against the other, it amounts to tort and the other persons can file a
suit for damages.
B. DUTY IS TOWARDS PERSONS GENERALLY.
In tort, duty is towards persons generally and not against some particular persons. That
means if a person’s legal right is violated by any one among the general public then the
effect person can file a suit for damages. If we take one of the tort i.e. Defamation as an
example no person among the general public should not publish defamatory statement
against the other.
C. BREACH OF DUTY IS REDRESSABLE BY ACTION FO DAMAGES.
In tort the person who suffers any harm from the wrongful out of the other can bring. Section
in the court for unliquidated damages. It is so, because under tort damage does not arise
our contract. If it is in case of breach of contract the defendant. If liable for a define amount
of damages. But the amount of damages for tort will be determined by the court.
CRITICISM OF WINFIELD’S DEFINITION.
Like other definitions Dr. Winfield’s definition is also not a satisfactory and perfect definition
and suffers from many defects some of the defects by which Winfield’s definition suffers from
are as follows:
a. DUTY FIXED BY LAW.
As it was defined that Tortious liability arises from breach of duty, fixed by law is not perfect.
But it is useful in understanding distinction between contractual liability and Tortious liability.
But there are many circumstances where by contractual liability also a tort may arise. For
example, liability of the driver of a car for his passengers.
b. DUTY TOWARDS PEROPLE GENERALLY.
According to the definition there will be a duty fixed by law towards people generally. This is
vary vague. But in modern ...... there are some duties which may arise out of special
relationship such duty is not towards people generally but towards people particularly.
Examples for special relationship by which are, passengers and carriers, doctor and patients
etc.

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CRITICISM ON WINFIELDiS DEFINATION.
Like other definition Winfield’s definition is also not satisfactory and perfect. His definition
suffers many defects which are as follows:
a. DUTY FIXED BY LAW.
According to him tortious liability may arise from breach of duty fixed by law. Even though it
is useful to understand the distinction between contractual and tortious liability it is not
satisfactory and perfect in its full sense.
But in modern times there are so many circumstances whereby contractual liability also a
tort may arise. For example, liability of the driver of a car for his passengers. So in this sense
the definition is defective one.
B. DUTY TOWARDS PEOPLE GENERALLY.
According to the definition breach of duty fixed by law towards people generally is vague and
incorrect. But in modern times there are some duties which may arise out of some special
relationship particularly. This duty is not towards people generally but towards people in
particularly. Examples for such special relationships are by which a tort may also arise, the
relationship between passengers and carriers, doctor and patient, guardian and ward,
trustee and beneficiary, etc.
Despite of the above criticism it can be said that Dr.Winfields definition is sufficiently
workable and is for better than definition for the term tort.
DISTINCTIONS:
TORT CRIME
A. In Tort, there is infringement of private or In Crime, there is breach of public rights
civil rights of individuals. which affect the whole community.
B. In Tort, the suit against the wrongdoer is In Crime the legal proceedings are initiated
initiated in a civil court. in a criminal court.
C. In Tort, the wrongdoers has to pay In Crime the criminal is punished by the
compensation to the injured persons. State in the interest of society.
D. In Tort the suit for damages is filed in the In Crime proceedings are initiated against
court against the wrongdoers by the plaintiff the accused by the State.
himself.
E. In Tort the defendant is reliable of liability Where as in Crime the guilty person is
by paying compensation to the plaintiff. punished.
F. In Tort the main object is to compensate But in Crime the main task is to teach him
the plaintiff for the loss suffered by him from lesson by punishing the accused so that he
the wrongful act of the defendant. may not repeat it in future as well as it
becomes an example for others.
TORT CONTRACT
A. In Tort the breach of duty, i.e, violation of In Contract, the determination such breach or
a duty was caused or not, can be determined violation of contract can be determined by king to
by keeping in view the provisions provided. consideration, the terms of the particular contract
Under law of torts It breach of duty in torts means breach of contract may be determined by the
may be decided by the fined provisions terms of the contract concerned.
under law.

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B. In Torts there is violating of right in rem, it But in contract, there is violation of right in
means, that under tort, if a person’s right is personam, it means if any person’s right in a
violated by any other person among the contract is violated, then he can file a suit
general public, then the affected person can against that person only by whom such
file a suit against any person who else violation caused.
caused such violation.
c. In Tort motive or intention, for breach of But in Contract the motive or
duty is immaterial and may not be taken into intentional of a person can be
consideration. It is because, sometimes, a taken in consideration. It is so
person with good motive or intention may try because in a contract if any
to save a person. If any harm is caused, then violation of the terms of contract is
a suit cannot be filed. used, by which any injury is
caused, then the person cannot
say that he violated the terms with
good motive or intention.
D. In Tort, the way of awarding damage is But in contracts the nature of awarding
known as exemplary. It means the purpose damages may be compensatory, punitive, or
of awarding damages in torts is to punish the exemplary it means the purpose of awarding
person by whom such injury was covered. damages in contracts is to give
compensation to the injured person but not
to punish the person who caused such
injury.
E. In Tort, generally damages are But in Contract, generally damage are
unliquidated. It means awarding damages in liquidated. It means, generally the damages
tort may depend upon the nature of facts and are fixed depending upon or by taking into
circumstances of the case. consideration the terms of that particular
contract.
CONCLUSION.
Even though the process for development of law of torts started vary late, later on it
developed rapidly. At the same time, the number of cases filed in torts were also increased
simultaneously. The various rules such as Absolute Liability, Strict Liability, Doctrine of
Estopel etc., can be considered as the proof of developments of law of torts.
2. What are the conditions which must exist before a person is held liable in tort?
What are the essential elements of a tort?
What are the general conditions of liability in tort?
In the ordinary course of time an act may be consideration as wrongful act when certain
conditions exist in that act. For example, under Indian panel code to determine the act of
offence of murder various conditions such as guilt of intention, motive etc., are considered.
In the same way to constitution a wrongful act such as tort these conditions are in existence
then only, the person concerned maybe hold liable in the tort. These conditions are as
follows:
A. WRONGFUL ACT.
B. LEGAL DAMAGE.

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C. LEGAL REMEDY.
A. WRONGFUL ACT.
An act which is done with out any lawful consideration can be called as wrongful act. To hold
a person liable in tort, such wrongful act must be proved. A wrongful act is one which
violates the legal right of another, violation of moral, social, and religious duties does not
come under the category of tort, Thus in tort the plaintiff has to prove that his legal rights
have ben violated by the act of the defendant.
tortious liability may rise under two circumstances. they are by doing an act which is
prohibited that means by violating the legal right in this context. rights may be classified into
two kinds which are as follows:
PUBLIC RIGHT.
Public rights are those rights which belong to the members of a state in general .
Whenever a public right is violated no action in tort shall be taken unless the person
concerned suffers from social damage.
Example
every person may have a right to work on the public Road it is also known as public right in
this context is a person known as a fixtures bamboos across the public road and blocked the
way then no action can file a Suit against under tort it amounts to violation of public right of
others.
PRIVATE RIGHT.
Private rights are those rights which belong to the member of society in particular
Example according to the above example if the bamboo fixed by the person causes injury to
a person then it amounts to tort it is why because the person has suffered from special
damage.
C. LEGAL DAMAGE.
Damage is the direct result of the difference wrong act the main object of the law of tort is to
protect harm from being caused to the property, body and Prestige of a person the provision
of law of torts provides damages as compensation. Someone must know what is meant by
damage and damages
DAMAGE
Damage means the harm or injury caused to one person by the wrongful act of the other
DAMAGES.
Damages means the compensation which is given to a person for the harm or injury that was
caused to him due to the wrongful act of another

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In the eyes of law for every device damages or compensation may not be given. Only in
case of legal damage damages may be given as compensation. To obtain compensation,
one must prove that he had Support some legal damage. the real meaning of legal damage
may be ascertained by the following two magazines
A. DAMNAUM SINE INJURIA.a.
B. INJURIA SINE DAMNUM.
A. Damnum sine injuria
The meaning of the above maximum is as follows considered
DAMNUM : the term damnum means damage in the form of money comfort and health
SINE : The terms sine means without
INJURIA : The term injuria means violation of legal rights
The three terms in the above maxim together gives the meaning that a damaged that cause
in the form of money, comfort and health without the violation of legal rights
DEFINITION. SIR FEDERIC POLLOCK.
The observation of Sir Frederick Pollock, with regards to 'Damnum sine Injuria'.
Men do many things such acts which causes an inconvenience or harm to others which is
likely to cause harm of inconvenience but without doing such acts. it is not possible to carry
on his ordinary activities in society, hence no complaint can be made for such harm or
inconvenience".
The above observation gives the meaning that damage is not the basis of action unless such
damage is the result of violation of legal rights of plaintiff.
GLOUXESTER GRAMMER SCHOOL CASE, 1410
According to the facts of the case, the plaintiff was running the school and the place later on,
the defendant started another school near the school of the plaintiff as a result of this most
of the students of the plaintiff left the plaintiffs school and joined defendants school, to meet
the competition the plaintiff reduced their fees from 40 penie to student per quater. Thus the
plaintiff suffered huge amount of loss then the plaintiff filed a Suit against the defendant for
compensation.
where both the plaintiff and defendant have the legal right to establish a school, which the
exercised respectively even though the establishment of new school near the plaintiff causes
some monetary loss, no legal right of a plaintiff was violated according to the Maxim
damnum sine injuria a claim for damage which is in the form of money, comfort and health
without violation legal right cannot be entertained as it talk show in this case it was held that
no action can be against the defendant.
B. INJURIA SINE DAMNUM.
The meaning of the three terms in the above maximum is as follows,

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INJURIA: The term injuria means violation of legal rights.
SINE: The item sine means without
DAMNUM: The term damnum means damages in the form of money comfort and health.
The three terms in the above Maxim together give the meaning that violation of legal right
without any damage to the plaintiff. That means violation of legal right is actionable, where it
has caused any real harm or loss to him or not
SALMOND
Salmond classified the tort into two kinds
A. A tort which is actionable without proof of any damage cause to the plaintiff
The first classification of Solmond says that, a person has the right to claim damages in
context of violation of his right, whether such violation caused any damage to him or not.
B). A tort which is actionable only on proof of such caused damage ceased to the plaintiff
But the second classification of Solmond says that, a person can claim damages, for
violation of his right only when there is the proof for such caused damage.
ASHBY Vs. WHITE,1703.
In this case the plaintiff was a qualified voter in Parliamentary Elections. The defendant who
was the returning officer, wrongfully refused to take the plaintiff's vote. Consequently, he
could not give his vote to his candidate. In spite of such thing the casndidate won the
election and no harm was caused to him.
In this circumstance the plaintiff filed the Suit against the defendant returning officer. The
contention of the Returning Officer is that candidate for whom whether the plaintiff is
intended to vote for, won the election so there is no harm that was caused to the plaintiff. But
this contention was rejected by the court and held that the defendant by refusing to accept
plaintiff's vote violated his legal right and was entitled to damages.
MARZETTI VS. WILLIMS, 1930
According to the facts, the plaintiff has sufficient money in his account in the defendants
Bank. Even then the banker had refused to honour his cheque. In this case it was held that
the bank was liable to pay damages, even though he had not suffered any loss.
C. LEGAL REMEDY.
UBI TUSI UBI REMEDIUM.
Basically is a civil wrong for which the remedy is action for damages the words in the about
Maxim gives the meaning that where there is a right there is remedy. The meaning also says
that the person whose right has been violated may have a remedy against the person who
has violated it.
The above principal has been established for the first time in the following leading case.

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ASHBY VS. WHITE,1703.
In this case the plaintiff was a voter in a parliamentary elections. The defendant who was the
returning officer wrongfully refused to accept his vote. Inspite of this the candidate had won
the election. Then the plaintiff suit the defendant for damages. In the court held that the
defendant was liable to pay damages to plaintiff as they had violated his legal right that is
right to vote.Hence, it is immaterial whether he has suffered any loss or not.
CONCLUSION.
By observing the above three magazine one can say that to make a person liable in tort, the
conditions specified in the maxims must be in existence. whether there is the existence of
monetary loss or not is immaterial and violation of legal right is sufficient for ground
constitute tort.
3. Explain the principle volenti non fit injuria and discuss the general defences to avoid
liability in tort or
whether the harm suffered a voluntary with the consent of the plaintiff is questionable explain
or
What are the various modes of discharge of tort?
INTRODUCTION.
Acts done in certain special circumstances are not torts. At the same time, in absence of
those circumstances the same act may become tort. The acts done in such special
circumstances and known as defences of torts a justification of torts. The following are some
of the general defences in which the defendant can avoid his liabilities in tort.
1. VOLENTY NON FIT INJURIA.
2. ACT OF GOD.
3. INEVIT ABLE ACCIDENTS.
4. PRIVATE DEFENCE.
5. ACTS OF NECESSITY.
1. VOLENTY NON FIT INJURIA.
The meaning of the principle says that harm suffered voluntarily by the consent by the
plaintiff is not actionable. This principle is generally known as that what is consented to is not
an injury. depending upon the nature of such consent it can be classified as follows

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A. EXPRESS CONSENT.
B. IMPLIED CONSENT.
A. EXPRESS CONSENT.
SALMOND.
According to salmond no man can enforce the right which he has voluntarily waived or
abandoned. It means if any person voluntarily leaves his right, then he cannot take any
action for it generally, the difference of volenti non fit injuria is taken in those cases where an
act is done with the consent of the plaintiff.
Example if A enters the house of B on the invitation of B then we cannot take action for
trespass against A because he entered the house with B's consent. If it is without invitation
or consent, the action can be taken.
B. IMPLIED CONSENT.
Implied consent means the consent which can be inferred from the conduct of the parties. In
such case the plaintiff does not give consent for the injury caused by the act. But he gives
concern to a thing to which the injury complained of is incidental.
Example
in a game of boxing, the boxes used to suffer with physical injuries in this circumstances,
The injured boxer cannot file a Suit against the other boxer it is why because, there may be
implied consent given by both the boxes this rule applies to the spectators of the game also.
At the same time, consent cannot make an illegal act, legal for example, according to the
rulers of boxing game the boxers have to wear gloves. In this circumstances if a boxer hits
The other player with naked first or without wearing gloves and injuries him then he will be
liable.
HALL Vs. BROOKLANDS AUTP RACING CLUB,1932.
In this case the plaintiff was a spectator in the defendants Race Club. During the race, there
was a collision between two cars and as a result of one of the cars was thrown on spectators
and injured the plaintiff. Then the court held that the defendant was not liable for the injury
caused to the plaintiff as he had impliedly consented to suffer the damage which was
incidental to such motor race.
WOOLDRIGE Vs. SUMMWR, 1963.
In this case, the plaintiff who was a photographer was taking photograph, of horse show
standing near the race track of the Race course of the defendant. One of the horses
rounded the bend too fast. The plaintiff frightened by this incident and fell into the track and
was injured, when he file a suit for damages, the court on the basis of the principal ' Implied
consent' held that the defendant is not liable.
CONDITIONS FOR THE APPLICATION OF MAXIM VOLENTI NON FIT INJURIA.

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The difference of volenti non fit injuria cannot be claimed for all the kinds of wrongs. The
following the conditions in which the defence of volenti non fit injuria can be claimed or
availed by the plaintiff.
A. CONSENT MUST BE FREE.
The defence of volent non fit injuria is available to the defendant only when he proves that
the plaintiffs consent to the act done by him was obtained voluntarily if the consent has been
obtained by fraud, or under compulsion or under compulsion or under some mistaken
impression, then such a consent will not be free consent and will not be a good defence.
R Vs. WILLIAMS,1923.
According to the facts of this case a music teacher has appointed to teach music to a girl
student of 16 years of age. The teacher had sexual intercourse with that girl under the
pretention that his act was an operation to improve her voice. She gave her consent to the
act sexual intercourse. The girl was under the impression that the teacher was doing the act
to improve her voice but not to commit rape.
The court held that the consent given by the girl for the act cannot be considered as a free
consent. Because the girls consent to participate in sexual intercourse with her music is
under a wrong impression that the act would improve her voice. Hence the court held that
the plaintiff is liable for guilty of rape.
B. ACT MUST BE LAWFUL.
The consent of undertaking which was given by the plaintiff to suffer the risk must be lawful.
and at the method of doing such act must also be a lawful one. That means a consent or
undertaking given to commit an unlawful act in an unlawful method is not a good consent for
the defendant.
EXAMPLE: according to the rules boxing game must be played with gloves. If one of the
players has given consent to play the game without gloves or with naked hand, then such
consent is not a valid one.
C. MAXIN IS VOLENTI NOT SCIENTI NON FIT INJURIA.
The about maxim means knowledge implies consent but mere knowledge does not imply
concent. It means it is not necessary to prove that X the person injured knew of the risk and
voluntarily under took it thus if a person willingly undertakes to do an act which is inherently
dangerous, in that circumstances if he is an injured he cannot file a suit against the other
person.
SMITH Vs. BAKERR, 1891.
In this case the plaintiff employed a workman by the defendant for the purpose of cutting arc.
At there itself they use to take the rocks from one side to the other with crane.
Every time the crane used to pass over him. Here the plaintiff and his master both knew that
there was danger of stone pieces falling on the plaintiff at any movement. Inspite of this, he
has consulted to do the work. In that process, on one day, the plaintiff suffered severe
injuries due to falling of the stones so the plaintiff suffered severe injuries due to falling of the

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stones so the plaintiff filed a suit against the defendant. Then the house of lords held that the
defendants are liable to pay the damages to the plaintiff.
According to this principle in the above Maxim, having knowledge does not imply consent to
take risk.
Exceptions to the Maxim in the following circumstance the maximum voluntary non fit injuria
does not apply
A. RESCUE CASES.
B. UNDER THE UNFAIR CONTRACT FORMS. at, 1977.
A. Rescue cases:
If the plaintiff voluntarily takes risk to rescue somebody from the danger created by the
wrongful act of the defendant, the maxim will not apply. In these circumstances the plaintiff
will have a right to bring an action against the defendant.
B. HAYNES Vs. HARWOOD, 1935.
In this case the defendants servant had left a house van and attended in a crowded Street
then a boy throw a stone on the horses. Ultimately the horses aborted running without the
driver causes danger to women and children on the road. Then a police constable who was
inside a nearby police station saw the incident and ran out and stopped the horses. In this
process the police constable was seriously injured so the constable filed the Suit against the
defendant for damages.
In this case the plaintiff’s ac t of taking risk is a voluntary one. Hence, the Maxim is
applicable in which they are not entitled to damages but the court held that the defence
under this maxim is not applicable to the damages in exceptionable cases as "Rescue
Cases" so the defendants were held liable to pay damages.
B. UNFAIR CONTRACT TERMS ACT, 1977.
According to the provision of the above act the rule of voluntary non fit injuria has been
abolished in case of personal injury or harm resulting from the negligence. It means the
defendant cannot take the plea that the plaintiff had consented to suffer the risk.
ACT OF GOD.
SIR FREDRIC POLLOCK.
According to Sir Fredrick Pollock, "Act of God" is an operation of natural forces to

unexpected that no woman forces are skill could reasonably be expected to anticipate it.
SALMOND.
According to Salmond, Act of God includes those acts which a man cannot avoid even after
taking reasonable care. Such accidents are result of natural forces and are connected with
the agencies of the man. Thus, an act of god consists of the following to essential elements,
which are available for defence.

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ESSENTIAL ELEMENTS.
A. There must be operation of natural forces.
B. The incident must be extra ordinary and not which could be anticipated and reasonably
guarded.
NICHOLS Vs. MARSLIHIND, 1876.
In this case artificial lake was created on the different lands and due to storage of rainwater.
Once there was an extraordinary heavy rain which could have never been reasonably
anticipated. As the result the lake burst out and water begin to overflow on the plaintiffs land
the flow of water carried away four bridges of the plaintiff. The court held that the defendant
was not liable as the loss was caused by the act of a god which could not be anticipated by
the defendant.
INEVITABLE ACCIDENT.
SIR FREDRICK POLLOCK.
According to Sir Fredrick Pollock, inevitable accidents are those accidents which a person of
ordinary prudence or knowledge cannot avoid in spite of all reasonable care on his part in
the circumstances in which they occur. In view of the above definition if a person drives a
motor then it is his duty to take necessary care and to see that no person is harmed. But
inspite of such necessary care if any accident takes place and someone is injurredss then he
is not reliable for that.
FARDAN Vs. HARCOURT, 1932.
In this case the defendant and his wife parked his motor car in front of a shop and went into
a shop for purchasing something. while going for purchasing they left the dog inside the car
before leaving the car the defendant has closed its doors properly. Generally, the dog used
to be quite. But, when it saw the plaintiff while passing from near the car, the dog by seeing
his glorious clothes was excited and started barking and smashes a panel of glass of the car
door. a piece from the glass entered the plaintiffs eye which had to be removed. In this case
the action of the plaintiff for the damages was not allowed because there was no negligence
on behalf of the defendant as he already taken necessary precautions.
PRIVATE DEFENCE.
Every person has the right to protect his life and property or person. And for this purpose he
can use necessary force.There are two conditions for the use of such force for self defence
they are as follows:
A. The use of such force for self defence will be justified only when there is imminent threat
to the person or property of the person.
B. The use of such force must be in the proportionate ratio, which is necessary in the existed
circumstances.
I.P.C.1860. SECTIONS 97 – 106.

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The provision says that self - defence tends or available to the protection of wife and
members of family, master and the servants.
PROTECTION OF PROPERTY.
Every person has a right to use reasonable and proportionate ratio of force protection of his
property and for that purpose he can take such measures which may be necessary.
BIRD Vs. HOLBROOK, 1828.
In this case, the defendant has put spring guns in his gardens. But he did not fix any notice
to the public. A trespasser entered his garden and was severely injured hence he was
allowed to damages because the force used in this circumstances was not that much
proportionate or reasonable but excessive and unreasonable. If at all the defendants noticed
fixing the spring guns then it amounts to the reasonable care.
ACT OF NECCESSITY.
The act of necessity is based on the Maxim Salus Populi Legs which means the Welfare of
the people is Supreme Law. The main object is to provide greatest good to the greatest
member. According to the Maxim if damage is caused by acts for preventing greater
damage, then it is not actionable even though harm is caused intentionally. The following are
examples
A. Throwing cargo into the sea to lighten the weight of the ship, in order to save the ship as
well as the persons.
B. To throw water on a horse on fire in order to stop the fire from being spread more.
C. Performance of operation of an unconscious person by a surgeon to save his life.
D. Forcibly feeding the persons who are in hunger strike and prisoners in jail, to save his life.
In th e above case the interference has been justified because such acts were done in order
to prevent greater harm, under the like circumstance. The defendant can take the defence of
act of necessity for avoiding the liability.
Conclusion.
The general conditions for differences or justifications of tort are very much essential
because those exceptional matters action cannot be taken. Whenever an act has been
committed by a person wrongfully we cannot consider it as a tort. The provisions of law of
torts makes distinguishes for liability in the ordinary course of time as well as in the
exceptional circumstances which we discussed above.
DAMAGES. REMEDIES FOR TORTS.
DAMAGE.

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Damage means the loss or injury suffered by the aggrieved party because of the tortuous act
committed by the other.
DAMAGES.
Damages means the monetory compensation claimed by the aggrieved party as it’s consequence.
OBJECT.
The main object of awarding damages is to keep the affected person in the same position in which
he would have been in existence, if at all such damage had not been caused.
Depending upon the nature of damage or injury or loqq or grievence damage can be classified as
follows.
1. NOMINAL DAMAGES:
The amount of damages under nominal damages may be very less and small. Sometimes damages
may be Rs.1, 2 or 3 and the like that on the basis of awarding very small amount as damage one
should not ignore the importance of ‘nomir i damages’ . it is so because generally nominal damages
are given not to compensate the injured party but to recognised his legal right which is violated by
the defendant.
ASHBY V WHITE 1703
According to the facts of the case the defendant who was a retuning officer, wrongfully refused to
register the qualified vote of the plaintiff, so the plaintiff filed a suit against the returning officer on
the ground that his legal right right to vote is candidate to whom, he intended to vote won the
election. Even than the court hald the defendant liable and ordered him to pay 1 shilling as nominal
damage to the plaintiff.
2. SUBSTANTIAL DAMAGES OR REAL DAMAGES.
The substantial or real damages are also known as compensatory damages. In this kind of
damages, the plaintiff may be given compensation which is almost equivalent for the loss
suffered by him. The purpose of awarding compensatory damages is to keep the injured
person in that position in which he was before the injury was caused to him.
LAXMINARAIN Vs. SUMITRA BAI, 1995.
According to the facts of the case, Chandrapal and Mahtar, were residents of the same
village in Madhya Pradesh. Laxminaryan was Chandrapal’s son and Sumitra Bai was
Mahtar’s daughter aged 16 years. One day chandrapal came to the house of mehtar and
proposed the marriage between his son laxminarayan with Sumitra Bai. After that
laxminarayan started visiting sumitra Bai, frequently which lead to sexual intercourse
between them. After that 15 march 1986 the engagement took place and marriage ceremony
was to be performed in April, 1987. In the mean time sumitra Bai become pregnant and

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delivered a still born child. As a result chandrapal who is the father of laxminarayana refused
his son’s marriage with sumitra bai.
When a suit for damages was filed the court awarded rs 30000/- as compensatory damages
for breach of promise to marry.
3. CONTEMPTUOUS DAMAGES
There may be some cases in which the court may be in such opinion that such case should
not have been brought to the court.
For example, if the plaintiff .... the defendant or using some ......... words against him, they
the plaintiffs claim become very weak and he is awarded only contemptuous damages.
4. EXEMPLARY OR PUNITIVE DAMAGES
Generally, in a tort, the main object or purpose of awarding damages is to compensate the
aggrieved party but not to punish the wrongdoer. But, sometimes, by keeping in view the
nature or severe of the injury very high compensation may be awarded. It is known as
exemplary or punitive damage. This kind of damages may be awarded not to compensate
the affected party, but to punish the defendant, The object is to deter the defendant as well
as others from repeating the same in future.
ROOKER Vs. BARNAD, 1964
In this case, the House of Lords have held that exemplary damages can be awarded in the
following three kinds of cases.
a. Where injury is caused by the illegal, arbitrary and painful conduct of govt servants.
b. Where the defendant’s conduct is to make a benefit for himself, which for exceeds
compensation payable to the plaintiff.
c. Where there is some provision in the statue for awarding damages.
5. GENERAL AND SPECIAL DAMAGES:
A. GENERAL DAMAGES
General damages are those which may be presumed by law to have resulted due to the
Tortious act o the defendant. In such case, specific plea or contention for damages in his suit
is not necessary. It is so because inspite of such plead the court may presume and award
some compensation to the plaintiff.
B. SPECIAL DAMAGES
In case of special damages, such loss of the plaintiff will not be presumed by law. Therefore,
the plaintiff must specifically claim damages in his suit against the defendant. If the plaintiff
failed to mention the things specifically, he will not be awarded damages. In order to award
special damages, the court will consider various aspects as bodily injury loss or pain, loss or
expentency life etc,.
I, INJUNCTION:

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Injunction is an order of the Court, restraining the commission, repetition, or continuance of

a wrongful act by the defendants. The remedy by way of injunction is a discretionary remedy.
In order to get this remedy, the plaintiff must prove either damage. If that apprehended
damage involve imminent danger or injury which will by irrespirable, then in such
circumstances the court will issue injunction, as a precautionary measure to prevent such
imminent danger or wrongful act.
II. EXTRA JUDICIAL REMEDIES.
The remedies of damages which are available to the affected person outside the court the
law such kind of remedies can be resorted to by the person’s own strength by way of self-
help. In such case instead of going to the court, the person protects his legal rights by
himself. But in this kind o remedies, the law imposes restriction with regards to using of force
to protect his legal right. The restriction is the use of force should not be more than what is
necessary in such circumstance. The following are some of the extra judicial remedies.
A). SELF-HELP.
B). RE-ENTRY ON LAND.
C). EXPULSION OF TRESPASSER.
A). SELF-HELP.
Every person is entitled to use reasonable force to protect himself against wrongful against
wrongful act of the another. The right of using force or self-help must be in proportion to the
danger to be prevented.
B). RE-ENTRY ON LAND.
A person who has been dispossessed of his land wrongfully can re-enter his land and take
its possession. He can use necessary force or this purpose provide. If is done peacefully.
C. EXPULSION OF TRESPASSER
Every person has right to expel a trespasser from his land by using the force proportionally.
But, before the use of such force, the person has to ask the trespasser to leave the land be
given an opportunity to leave the land.
CONCLUSION:
The main purpose of awarding damages under tort is to, provide compensation to the
aggrieved party, so the court can keep or put the affected person in that position in which he
would have been, if the tort is not committed by the defendant, to him.

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5. What is meant by vicarious liability and under which circumstances a person will become
vicariously liable under law of torts?
b. What are the required conditions to held a person vicariously liable and what are the
general defences for it?
INTRODUCTION:
Generally man is liable for the wrongs committed by him-self. But, there are certain cases
where a person held liable for the tort committed by another. The word ‘vicarious liability’
means delegated which. The meaning of the phrase deals with the liability of a person for
the tort of another. for the purpose of vicarious liability law divides persons working for other
into two groups such as servants and independent contracters.
BASIS OF VICARIOUS LAIBILTY.

vicarious liability of a person can be studied under two views such as old view and modern
view.
A). TRADITONAL OR OLD VIEW.
The traditional or old view with regards to vicarious liability can be further studied under two
maxims, such as, Qui Facit Per Alium Facit Per Se, and Respondent Superior.
a. QUI FACIT PER ALIUM FACTI PER SE.
The meaning for the maxim qui facit per se is that “a person who does an act through
another is deemed in law to do it himself. On the basis of this doctrine a master is liable for
the torts committed by his servant. A person who does an act or gets his done through
another is liable for all the consequences of that act.
RESPONDENT SUPERIOR.
The meaning of this Maxim says that the superior must be liable on the relationship of
master and servant, master can be considered as a superior. so far the torts committed by
such servant, the master as a superior will become liable.
B). MODERN VIEW.

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None of the maxims of traditional view on vicarious liability does not include every aspect
concerned therefore comma but list and quotes have involved new basis of liability which is
reasonable and meets the problems of the modern developing society. keeping in view the
modern view,
JUSTICE FREDRICK POLLOCK said that “I am for responsible for the wrongful acts of my
servant or agent because he does my act and therefore, it is my duty to see that he must do
my act keeping in view the security of others”.
According to the modern concept, VICARIOUS LIABILITY arises in the following two
circumstances.
1).Liability by ratification.
2).Liability arising out of special relationship.
1. LIABILITY BY RATIFICATION.
The term ‘ Ratification’ means if any erson concerned gives his authorisation
sunsequently for an act of which has been already done without the authority or knowledge
of the person. hence where acts are done by one person on behalf of another but without
knowledge or authority in that circumstances one may select to ratify or to disown acts. for
EXAMPLE. If an act done by an Agent without the knowledge or authority of his Principal,
under the like circumstances if the Principal had ratified such previous act, by giving his
acceptance to such done act subsequentely, then it amounts to ratification by the Principal.
Under the like circumstances, the Principal, who ratified such act is liable even if it is a tort. A
person is vicariously liable under the following circumstances.
1. The person who ratified the act subsequently, must have full knowledge about the act to
which he is giving ratification and it must be proved that he had full knowledge while
ratifying, then only he is liable tortious act. Otherwise, not.
2. Gratified must be expressed.
3. Only such acts can be ratified which were done at the time on behalf of the principal when
the ratifying party must have done the act.
4. Only prophylaxis can be ratified which could have been done by the person ratifying the
act. Unlawful and illegal acts cannot be ratified.
2. LIABILITY ARASING OUT OF SPECIAL RELATIONSHIP
In order to make a person by seriously liable for the tort committed by other, the relationship
which was in a existence between the person concerned and wrongdoer we may be taken
into consideration. In all contexts a person may not be vicariously liable. only when the
relationship such as master and servant, principal and agent firm and its partners etc. Were
in existence then he will become liable for the torts committed by the servents, agent and
partner respectively.
MASTER AND SERVANT

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WHO IS A MASTER
MASTER : master is one who appointed for employed some other person to do work under
the control and direction of himself employer or master introspect of the manner in which the
work is to be done under this relationship the master may have the authority to give orders to
get the work done by his servants
Who is a Servant
A servant is one who is appointed by another to do work for him employer or Master on the
condition that servant is work under the control and direction of his master
Under the provision law of torts a master is liable for all the acts done by his servants for
making a master vicariously liable the following two conditions must be fulfilled.
There must be relationship of master and servant between the defendant and the person
committing the torts.
Search Tortious act must have been done or committed by the servant in the cause of his
employment.
Traditional view
According to the traditional view, the relation of a master and servant between two persons
is established only when one gives order and the another obeys the order. It means the
master maybe power to exercise control and also the power to issue directions to do the
work. To know the nature of control that can be exercised by a master over his servant one
must go through or observe the rules which were established to determine the "contract of
service".
SHORT V. J&W HENDERSON LTD, 1946
In this case Lord Thankerton had laid down 4 rules for determining the "contract of service"
which are as follows
A. A master may have the power to sell at his servant
B. A master may have the power to take wages and other remuneration
C. A master may have the power and right to exercise control to make the servant to do the
work in the prescribed manner.
D. A master may have the right to suspend and dismiss his servant
Among these 4 rules for determining contract of service the third rule which says about the
control is the most important one to determine the relationship of master and servant
Distinguish between servant and independent contractor
A general rule is that a master is vicariously liable for the torts committed by his servant. But
such liability of a master does not extend towards an independent contractor. Therefore, it is
necessary to examine the distinction between the 'servant' and 'independent contractor'. For
such distinction it is necessary to know the meaning of the term agent. Generally the term
'agent' is used for a person employed to do work for another.

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Depending upon the nature and the method of doing such work, agents can be classified as
servant and independent contractor.
SERVANT
if the employer has the right to exercise over the agent with regards to the matters of doing
work, then such agent is called as servant. It means a servant is an agent who works under
the supervision and direction of the employer.
INDEPENDENT CONTRACTOR
An independent contractor himself is his own master. an agent who is engaged to do certain
work, for his master but by exercising his own discretion as to the manner and mode of
doing such work.
DEVINDER SINGH V. MANGAL SINGH 1981
According to the facts, Devender had given his truck for repair to a workshop. when the
owner of the workshop was driving the car, hit a bicycle Rider and injured him. The injured
person filed a suit for damages against the owner of the truck. even though the workshop
owner is doing repairing work for the truck owner, his act according to his discretion with
regards to the method and mode of doing such repairing work. under the circumstances, the
workshop owner can be considered as an independent contractor. since, the court held that
truck owner it's not like a really liable.
MODERN VIEW IN VICARIOUSLY LIABILITY(RULE OF FIRE AND HIRE)
In Modern Times the traditional rule is not applied, in every view. The control which is
essential element of traditional view cannot be applied towards skilled and professional
workers. In recent times a new rule which is known as 'hire and fire' was being applied in
various cases. Hire and Fire rule means a person who has the power to appoint may have
the power to dismiss him. the hire and fire power to appoint and dismiss rule has been
applied by the Supreme Court of India while deciding the following cases:
BHARATH SINGH VS. ABDUL RAHMAN, 1981
In this case an accident occurred due to the negligence of a truck driver of Border Security
Force the construction of state on behalf of the BSF was since the Union of India has control
over the functions of BSF, the state is not liable for its committed by its servants. but this
contention by the state was rejected by the court on the ground that the Preamble of Border
Security Force act says that BSF is the force of Union of India. Another ground for rejecting
the contention of the state is to the Government of India has the power to appoint and
dismiss the service of BSF. Keeping in view these two grounds. The court applied the hire
and fire rule held that the state is vicariously liable for the tort (accident) committed by the
BSF Servants.
DEFENCES FOR VICARIOUSLY LIABILITY
Generally a master is by vicariously liable for the torts committed by his servant. A master
will become liable only for those torts which were done by the servant in the course of his
employment. The courts have laid down certain principles which must be applied to
determine whether the act done by servant comes within the scope of his employment or

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not. A servant may be said to have acted in the course of employment in the following
circumstances.
1. When the servant does a wrongful act authorised by the master
2. When the servant does the act in a wrongful and unauthorised manner, to which
authorisation as given by the master.
The following are some of the defences which can be taken or plead by a master to avoid
vicariously liability.
1. Acts done in a wrongful manner
2. Servants private acts.
1. ACTS DONE IN A WRONGFUL MANNER
If a servant doesn't act negligently, for which the master authorised to the servant to do
carefully or if the agent does an act fraudulently or mistakenly which the master authorised
him to do honestly and correctly. For such torts the master will not become vicariously liable.
2. SERVANTS PRIVATE ACTS
If the act done by the servant is his private work and is not connected with master's it will be
treated as a act done outside the course of employment and for such act the master will not
be held liable.
MALINIRANJAN GEN GUPTA V. CALCUTTA CORPORATION, 1926
In this case the driver was asking the car to a workshop for repairs. But due to some
obstructions, it become impossible to go forward. So he left the car on the way with the
cleaner and went to the workshop. When the traffic was cleared in absence of the driver, the
cleaner drive the car and knocked down street light pole
The court in this case, it was held that the owner is not vicariously liable for negligence of the
cleaner as the act of the cleaner was outside the course of employment. The decision of the
court in this clearly says that an employee is not liable for the torts committed by his servant
outside the course of employment.
CONCLUSION
As we observed above, there may be some circumstances in which a master will become
vicariously liable for the torts committed by his servant in the course of employment. The
purpose of these provisions under law of torts is to provide remedy to the affected or
aggrieved person at any circumstances.
Due to application of these provisions a master cannot escape or avoid his liability without
providing damages to the aggrieved person. Under law of torts there are some other
relationships such as principal and agent, firm and its partners etc. for the acts of the servant
and partners the principal and firm will become vicariously liable.

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6. Explain various kinds of injuries which may lead to constitute the tort ' trespass to person'
Or
B. Define and explain the essential elements of an assault, battery and false imprisonment?
INTRODUCTION
There are so many provisions under various acts which provide protection or security to the
person. For example, law of crimes IPC prescribes different kinds of punishments for
different kinds of injuries to the person. It is because the security of the person is the most
important function of the law. Just as law of crimes, the law of torts also provides protection
against the injuries to the person, by awarding damages to the aggrieved person but the
difference between law of crimes and law of torts is a law of crimes provides protection by
prescribing punishment against the injuries to the person. whereas law of torts provides
protection by providing various kinds of damages against the injuries to the person.
An injury to the person for which action lies to tort may be classified into following three kinds
A. Assault
B. Battery
C. False imprisonment
A. Assault
According to the definition, assault is an unsuccessful, intentional application of force against

the body of another person which causes reasonable apprehension of the inflection of a
battery on him. Whether such applied of force caused any harm or not is immaterial. That
means simple attempt to cause harm is insufficient.To constitute assault. The following are
the essential of assault, which the plaintiff has to prove
A. Intention to use forced
B. Capacity to use force
A. INTENTION TO USE FORCE
The first things which the plaintiff has to show in an action for assault is that there was some
gesture. Preparation to use force. Such gestures or preparations threatens the other
party and it must Be intentional.
B. CAPACITY TO USE FORCE

The person assaulted mast, on reasonable grounds believe that the person assaulting has
the ability to apply or use the force to attempted by him.
STRPHEN V. MYERS, 1830
In this case the plaintiff was the chairman(perish). If the managing committee of a church.
While the meeting was going on, the defendant who was sitting on the same table at a short
distance started shouting against the plaintiff (chairman). because of such misbehaviour,
the chairman (plaintiff) by large majority of members decided to turn him out of meeting. By
this decision, the defendant get more angry and proceeded towards the chairman with him.
First clenched, by saying that rather he would pull the chairman out, than he himself turned

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out of the room. But his attempt of pulling the chairman was stopped by the members who
ere next to the chairman, thus he could not fulfil his intention.
In this case, the court held that the defendant was liable for assault and awarded one shilling
as damages to the plaintiff.
BATTERY
DEFINITION:SALMOND
According to salmond, battery is application of Force to the person of another without any
lawful justification.
As we observed above assault means an attempt to use force against the body of the other
person which causes reasonable apprehension in his mind. Where is battery mean and
accomplished assault. Battery actually means the use of force against the other person. The
application of force maybe slight one, even then it amounts to battery. Even to touch a
person without his consent amounts to battery. In this context, such battery needs not to be
cause any bodily harm.
Example:
Assault : the attempt to strike with strike is an assault
Battery: striking and person with a stick actually amount to battery
Essentials of battery:
In an action for battery the plaintiff has to prove following things.
a. use of force
b. force must be intentional
c. without lawful justification
A. Use of force :
The first element which one has to prove in action for battery is the use of force to the other
person without any lawful justification. The act must be done by the defendant. If there is no
act by the defendant, then there may not be battery and such act by the defendant must
cause contact with the plaintiff.
That means main accidental contact or touch with the body of a person does not amount to
battery
B. Force must be intentionally
The second element which must be proved in action for battery is that the use of such force
by the defendant must be intentional and without local justification that means if a person
and without local justification that means if a person accidentally an unintentional part of the
body of another person, it does not amounts to battery

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C. Without lawful justification
Without lawful justification means touching the body of other person without his consent that
means touching a man in friendly manner in order to draw his attention is not a battery and
the same time, if 1 is acting under the quality of statute, in the process if he touches the
other, then also it does not amount to a battery
For example, if a policeman touches a thief to arrest him it does not amount to battery. It is
why because a police acting under the authority or started with lawful justification.
SWARUP KRISHNA VS. GOVARDHAN DAS, 1956
In this case if girl of 16 years 8 slapped the plaintiff on his face in presence of several
persons in his own shop so he file a Suit against that girl on the ground of battery then the
court held that even the act of the girl did not cause much physical injury, certainly it was an
assault to the dignity of the plaintiff. So the court in this case awarded rupees 1,000.
damages to the plaintiff.
False imprisonment
Definition: Dr winfield
According to doctor when field, false imprisonment consist of imprisonment about Total
distance for some period, however, short upon the liberty of another without sufficient
justification
False imprisonment, means 'the total restraint of a person' Liberty without lawful justification
such act amounts to a crime under section 340 of IPC. Which is known as wrongful
confinement. At the same time of filing a suit under this tort the plaintiff has to prove the
following two things.
A. The plaintiff has to prove his imprisonment
B. Such Imprisonment caused by the defendant or his servant acting in the cause of his
employment.
Example: if A, a man, of power asks B to stand in the sun, and if B out of fear and in
obedience to the order of A, keeps standing in the sun, this is false imprisonment.
ESSENTIALS
In order to fix the liability for false imprisonment the plaintiff has to prove the following
essential
A. Total restraint
B. Detention must be unlawful
A. Total restraint
In order to constitutes the above tort one person must totally restraint other person. That
means the person must not be given any opportunity to avoid the circumstances. That if a
person prevents another person from going in any direction it amounts to total restraint. But

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if that person prevents another person from going from direction, and allow him to go from
some other direction, it does not amounts to total restraint. In that circumstances, it can be
called as partial restraint.
BIRDS VS. JONES, 1845
In this case, one person prevented the other person from going on the highway the plaintiff
has some other way other than that way to reach his distinction destination so in this case,
the court held that the search prevention does not amount to false imprisonment why
because the defendant stop at the plaintiff going from one Direction. but not from all
directions so it amounts to partial resident but not total restraint or false imprisonment. so in
this case, the court held that the defendant is not liable.
B. Detention must be unlawful
In order to construct false imprisonment it is necessary to prove that the tension is unlawful
and without any justification that means if any person arrest other person and hands him
over to the police illegally, done it amounts to false imprisonment. But at the same time if a
person made a complaint, by which the police arrest the other person, after making
independent enquiry, then it does not amounts to false imprisonment similarly, if the plaintiff
himself curtails he is liability, then the dependents will not be liable for false imprisonment.
HERD VS. WEAFILE, STEEL GAR AND COKE CO.LTD, 1915
In this case the plaintiff, is a craftsman discarded (got the man with the help of the cage at
about 9:30)
Actually, she has to work in the minds for 8 hours that means by 7.30 he can ascent from the
mine. But in the meantime, before the completion of his working hours has requested the
defendant refused to take him out of the mine until 7:30. So the plaintiff filed a Suit against
the dependents for false imprisonment but the House of Lords held that the dependents are
not liable, because a plaintiff himself consents to the curtailment of his liberty. Hence a
worker who went into the mines, in the ordinary course of time may be expected to come out
on the mine only after the completion of his working hours but not earlier. So even
though the defendants denied to take him out before the working hours does not amount to
false imprisonment.
CONCLUSION
Response to man can be classified into a salt, battery and false imprisonment. Depending
upon the nature of act they may be classified as above. The main function of law is to
provide secretary to the persons. So the law of tort provides security to the protection by
awarding damages to the aggrieved persons.
7. Define the term defamation and explain the essential elements
(Or)
Explain various kinds, Essentials and exception of the defamation
Introduction

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A man’s reputation in his property which is more valuable than other kinds of properties even
man has the right to protect his reputation and injury which cause it to the reputation of one
person is known as the foundation it is wrong done by one person to another person's
reputation by words written and spoken find another visible representation there are some
other words used under law of taut which seems to give similar meaning but different from
each other those words are as follows:
A. Wrongful act
For example if a person attempts to use force against the body of other person,
intentionally, in a public place then he may feel disgraced. this kind of action can be
considered as a wrongful act, which comes under the purview of definition for assault does
not definition.
B.INSULT
Insult is another form of injury which cause to the other person, by means of
Or representation. For example, if a person gets reserved. In second class
compartment was compelled to leave the seat only another person unlawfully in may feel
this disgraced. This act amounts to insult but not defamation because here the injury was not
to his reputation.
C. DEFAMATION
If any person by words gives a statement unlawfully which tends to lower the dignity and
status of a person it amounts to defamation
So the above three terms have been distinguished from each other under law of torts.
DEFINITION DEFAMATION
DR. WINFIELD
According to doctor winfield defamation is a publication of the statement with stencil overlay
person in the estimation of right thinking members of society generally, or, which tense to
make with them avoid that person
So, according to the about definition an act may be considered as defamation. if it has been
communicated to some person to other person disable which lead to lower the plaintiff in the
estimation of right thinking persons in the society.
Depending upon the nature of the actor, deformation can be classified into the following two
kinds with the statement of that information is in written form then it amounts to 'libel' and if
statement in the form of words spoken then it amounts to the slander.
A. Libel
B. Slander
A. Libel
Song of defamation was committed by way of writing its amount to libel that mean if the
diameter restatement is made in some permanent and visible form such as writing printing,
picture etc. it is also known as defamation by a way of libel.

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B. Slander
On the other hand, if the statement is made by some spoken words which are visible or
audible such as gestures, hissing etc. It amounts to slander. That means libel is visible to the
eye and slander is audible to ear.
ESSENTIALS OF DEFAMATION
If an action for defamation the plaintiff has to prove the following Essentials
A.The statement must be deformity
B.The statement must refer to the plaintiff
C. The statement must be published
A. The statement must be defamatory
Generally the plaintiff may have the power to file a suit only on the basis of defamatory
statements. A statement is a defamatory if it is intended to cause injury to the reputation of a
person to whom it refers. That means a statement which lowers the plaintiff in the minds of
the right thinking person’s can be called as defamatory one. Even if such statement has
been made innocently that persons is liable. So if any persons without knowledge innocently
made a statement even for that he is liable for defamation.
MORISSION VS. RITCHIE, 1947
In this case the defendant newspaper was held liable for the publishing in good faith, a
mistake and announcement that the plaintiff has given birth to a child. But the fact is that the
plaintiff (lady) have been married only 2 months before. While deciding the case the court
held that he who published a defamatory statement without any intention of referring to the
plaintiff is liable. In that circumstances, the innocence of part of the defendant may not be
taken into consideration.
STATEMENT MUST REFER TO THE PLAINTIFF
In every action for the formation the plaintiff has to prove that such defamatory statement
refers to him. It is also necessary to prove that by the words used everybody would know
that the name of the plaintiff was referred to. Such reference in the statement need not be
intentional. Even though the defendant does not know that his statement may refer to a
particular person even then he will be liable for defamation.
HULTON AND COMPANY VS. JONES, 1910
According to the facts of the case a writer in his article invited an imaginary name known as
Artemus jones. This Artemis Jones who is an imaginary character in the article has been
described as a church waiden. The writer described the person as an accused of living with
the mistress in france. Later that article was published in a newspaper.
Unfortunately, other than the imaginary person of the writer, the some other person by same
name and circumstances was in existence. That real existed person is an English barrister.
so that English barrister filed the Suit against the publisher of the newspaper.

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In this case the court held that although the newspaper publishers does not the existence of
another person coincidently that imaginary name refers to the English barrister. In this
circumstance. the Publishers of the newspapers were held liable.
C. Statement must be published
To make a person liable for defamation, publication of such defamatory matter on statement
is essential. In general, the term Publication means making a thing publicly known. That
means if there is no Publication there is no injury to reputation of a person. But the condition
in a such, statement must be made to some persons other than the plaintiff.
DEFENCES
The following are the defences generally taken into action of defamation
A. Justification of truth
B. Fair and Bonafide comment
C. Privileges statement
D. Apology
Justification of truth:
In action for defamation truth of that statement is a complete defence. That means is the
dependent proves that the defamatory statement is true, and then no action will be against
him. In the circumstance the defendant is not in need to prove that each and every word in
that defamatory statement is correct. Even though the statement not perfectly true and
substantially correctly, this defence is available to the defendant.
ALEXANDER V. NORTH EAST RAILWAYS , 1865
In this case the dependent published a notice stating that the plaintiff had been convicted of
travelling in a train without a ticket, and had been fined 1pound with 3 weeks
imprisonment in default of payment. But in fact the punishment given to the plaintiff of only
for 2 weeks in default of payment.
The court held that the defendant is not liable for defamation because even though the
statement is completely not correct, but substantially correct. So, the defendant can avail the
defence of justification of truth.
B. FAIR AND BONAFIDE COMMENT
Every person is entitled to express his opinion on matters of public interest hence, a fair and
Bonafide comment on a matter of public interest is a good defence in an action of damages.
A comment to be a fair comment must possess the following essentials.
A. It must be a comment or criticism but must not be a mare statement of fact
B. Such comment must be on a matter of public interest.

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C. Such comment must be fair and honest one.
A. It must be a comment but not statement of facts
A comment made by a person should not be in the form of allegation of facts. In order to use
comment as defence for defamation, it must be fair and such comment must be on matter of
public interest.
B. Such comment must be on matters of public interest
Comment on matter of public interest means, a comment which was made on the acts of
public who are performing public duty. Generally the following public cuts of ministers and
offices of the administration of justice, public Institutions and local authorities etc. Are
regarded as matters of public interest. Hence, a fair comments about these matters can be
considered as comments on matters of public interest.
C. SUCH COMMENT MUST BE FAIR AND HONEST
If such comment is based on facts which were true, then it can be considered as a fair
comment. And if such comment is not made malice or malafide or with bad intention then it
can be considered as a comment which was made honestly. Hence, whenever a comment is
fair and honest one then the defendant can take the defence in an action for defamation.
C. PRIVILEGED STATEMENT
Another defence in an action of defamation is privileged statement. Sometimes even though,

r the statement was on true and malicious, the defendant who made the statement can avail
the defence which is known as privileged statement certain persons may enjoy such
privilege. And depending upon the nature of circumstance, a privilege can be classified as
follows.
A. ABSOLUTE PRIVILEGE
B. QUALIFIED PRIVILEGE
A. ABSOLUTE PRIVILEGE
Absolute privileges are those which can be enjoyed by the following circumstances. For
example, parliamentary proceedings, judiciary may have privileges in the matters of judicial
proceedings. Military and naval officers may have privilege in the military and naval
proceedings. So depending upon the occasions such statement they may be considered as
privileged statement. The following are some of the statement to which are absolutely
privileged.
A. A statement made by judge.
B. A statement made by an advocate on the matters of judicial proceedings.
C. A statement by a witness.
D. A statement made by a subordinate officer of a court while acting judicially or an duty etc.
B. QUALIFIED PRIVILEGE

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A neutral position between the absence of privilege and presence of absolute privilege can
be considered as qualified privilege. That means, only if statement is false and defamatory,
unless the malice has been proved no action lies under defamation. That means the
malafide intention of the dependent must be proved so, if any person made a statement
without any malicious, then it can be cancelled as qualified statement. The following are
some of the conditions for qualified privilege statements.
A. There must be fit are suitable or appropriate occasion to make such statement.
B. Insert statement must be made without proper motive and not maliciously.
Apology:
The last essential element which the defendant can avail and difference in action for
defamation is apology. The implied meaning of section 2 of the libel act, 1843, says that
when ever any defamatory statement was published in newspaper of periodical Publication,
the defendant can plead and can give explanation that such statement was inserted in such
newspaper without any bad intention or without any malice. The defendant has have to
publish is contention at the earliest opportunity or before the commencement of action for
such defamatory statement in a newspaper.
But the important thing to observe here is that the plea of apology in any newspaper is
maintainable only when the other person had been defamed accepted that apology
Conclusion
Every human being in society may give such importance to their reputation. Such reputation
is more valuable than property. That phenomena has been continuing since ancient days
until now. Not only the provisions of law of torts but also section 499 of IPC provides same
kind of provisions to the aggrieved person. And as per law of torts provisions which we
observed says that in some of the circumstances the statements which made by privileged
persons under privileged conditions may not be held liable for tort. So,we can say that the
provisions of law of the torts by providing essentials, kinds, defences, successfully not the
necessity of the person to protect their reputation in various contexts.
8. A. Define and explain the essentials of negligence
Which kind of acts amounts to negligence under law of torts and what are they?
INTRODUCTION
Under the law of torts the term negligence has to meaning. One is negligence is a mode or
way committing certain tort. And the other meaning says that negligence is a conduct which
causes damage without anything in mind. In some of the matters the parties may be under
an obligation or duty to give reasonable care. In an action for negligence the plaintiff has to
prove that the defendant was under an obligation of duty to take. In case of negligence, it is
not necessary that the person to whom injury had to be caused is known to be dependent. if
any injury was caused to the plaintiff due to the negligent act of the dependent, then he
have to pay damages for the injury suffered by the plaintiff.
DEFINATION OF NEGLIGENCE
ALDERSON

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According to Alderson "Negligence formation to do something which are visible marks added
up on those consideration which ordinary regulate the contact of human affairs, would do, or
doing something which a product and reasonable man would not do."
Dr winfield
Dr winfield defined the term negligence of a tort is the breach of a legal duty to take care
which results in damages".
The above two definitions for the term negligence says that negligence means to do an act
or omission to do something with the regard to conduct of human affairs which is reasonable
man would not in the ordinary course of time.
ESSENTIALS OF NEGLIGENCE
In an action for negligence the plaintiff has to prove the Essentials to prove the liability of the
defendant.
A. Legal duty to take care
B. Breach of the said duty
C. Damage to the plaintiff as a result of breach of duty.
A. LEGAL DUTY TO TAKE CARE:
Under law of torts that cannot be negligence in the legal sense of the word unless there is a
legal duty. A duty maybe of two kinds, one is moral duty and the other is legal duty.
B. MORAL DUTY
The duties which every human being comma as a member of society used to observe for
example, helping the poor giving food to a man of starving etc. if any person to not perform
this kind of Duty, it is not actionable.
B. LEGAL DUTY
Legal duty is one which is imposed by law for example, every person is under an obligation.
So under law of torts in action for negligence, specifically with regards to duty to care, two
things must be in existence. One is there must be legal duty and the other as such legal duty
must be obligated one. The nature of legal duty in may vary from time to time depending
upon circumstances. So, Lord McMilan rightly said that "there is no end to categorise of
negligence" sometimes depending upon various existed relationships between the parties a
legal duty may arise.
DONOGHUE VS.STEVENSION, 1932
According to the facts of the case if person purchased a bottle of Ginger beer from the
retailers shop for his girlfriend. That bottle was made of dark opaque glass and sealed with
metal cap. So the contents inside the bottle are not visible. That person opens the sealed
bottle and poured of its contents into a glass and offered his girlfriend. Then she drank some
of the contents, when the remaining there was poured into the glass a snail which was in the

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bottle with beer floated come out. As a result of drinking that beer she suffered serious
illness and filed a suit for compensation against the manufacturer.
But the defendant contented that being manufacturers they are not liable for negligence,
because they have no duty to take care towards a plaintiff, because their first customer is a
retailer but not see who drank the bear and suffered illness. But the House of Lords rejected
the contention of the dependents by recognising a new duty which may arise of relationship.
In this case it was held that the product of a manufacturer may ultimately reach the
consumer through the retailer. Hence, the manufacturer is under an obligation to extend
reasonable care while manufacturing the products so, ultimately, the manufacturer is liable
to pay compensation to the party concerned
The Courts in India follows the principle which was laid down in Donoghue vs.Stevenson's
case deciding the following case
NAKARA VS. SANTOSH PRIVATE BENEFIT LTD. 1982
In this case, a person was employed as a servant in a motor garage once he was Centre for
driving a private vehicle when he was driving with the motor Burnt and the doors of drivers
side were opened consequently . She fell out of the motor car, substance ever injuries and
as a result he died. As per the condition of motor car is concerned it is an old vehicle and the
tyre where in bad condition, so that vehicle is not fit for driving on the road.
The court held that the Managing Director of the garage was liable because no necessary
steps were taken to keep the vehicle in a good condition and moreover there is no evidence
to show that accidents took place due to negligence of the driver of the vehicle.
LIABILITY OF A MEDICAL MAN
Every surgeon take responsibility for what he injection to a patient it means comma if a
doctors behaves negligently with regards to the treatment to a patient, and if is ultimately
leads to an injury to the patient concerned, then he is liable
Joseph v s George manjela, 1994
In this case, a patient known as Mary was admitted into the hospital for delivery where she
gave birth to a male child. The delivery was normal and later she was discharged from the
hospital. But on the same day off a discharge from the hospital, she was made to admit in
the same hospital for post mortem sterilization. on the second day time admission the wife of
the doctors performing the operation in a cruel manner even without applying on
administrating chloroform and more over while performing operation, her hands and
were tied so that she could not move. After performance of operation in such a cruel
manner, she was discharged from the hospital. But again she had come to hospital
because, there had been. Then the doctor advised her to go to the other
Hospital. Where is the second Hospital it was found that one part of the intestine cut. After
this operation the pulse again begin to oozing. So that she was again admitted into another
Hospital. In the third Hospital, the doctors found that there was many holes in small intestine
at last she died on 30_1_1992.
In this case the kerala high court held that the doctor of the first Hospital is liable because
she has done to operation in a cruel manner. so the court awarded 160000 damages to the
husband and children of the disease do with 12% interest.

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2. BREACH OF THE SAID DUTY
II essential element is an action for damages under negligence is there must be breach of
the duty it means if there is illegal duty which was upon a person and if the duty have been
breached that it leads to violation of others legal rights. so, the persons upon certain legal
duties are there must perform the
Especially it means a legal duty which is known as a legal duties to take care has been be
breached than the other party can claim damages.
Whether first legal duty has been violated or not may be determined by the court on the facts
of a consists of each cases.
GLASGO CORPORATION VS. TAYLOR, 1922
In this case the glass for Corporation had at public Garden where a kind of roots where
grown. These fruits are looked like cherries and had tempting appearance for the children. A
child, aged 7 years went into the garden and ate those cherries and consequently he died. In
this case the court held that the corporation authorities are liable because there was no
proper fencing and more over no notice was there regarding the poisonous character of the
berries. The court held that the authorities have breached the legal duty to take reasonable
care.
c. DAMAGE TO THE PLAINTIFF AS A RESULT OF BREACH OF DUTY
Generally the plaintiff has to prove the negligent act of the defendant by which he had
suffered injuries. But in most of the negligent act it is not possible to prove the truth with
regards to negligent act. In such circumstances the injury suffered by the plaintiff itself may
be a proof to claim damages. That mean sometimes to plaintiff an accident but he
cannot prove the origin like how it happened. To award compensation where the above
circumstances was in existence there is a doctrine which is known as doctrine of a
Loquitur.
DOCTRINE OF RES IPSA LIQUITUR
The doctrine of res ipsa liquitor means “ the thing speaks for itself so that in certain cases it
is sufficient for the plaintiff to prove the accident and nothing more”. This doctrine has been
applied while deciding the following case.
SCOTT V. ST. KATHERINE DOCK COMPANY, 1865
In this case, the plaintiff want to the defendants dockyard on business. While going fromon
door way to another, six bags of sugar while were held by a chain fall on him and caused
injury to him.
In this case, the court held that the defendant company is liable. To pay compensation while
deciding the case the court opined that it is immaterial how the accident took place here.
Even though the plaintiff failed to prove. How the accident took place, the injuries suffered by
him. More than sufficient to award damages.
SHYAMAL SARIN SHAH VS. STATE OF WEST BENGAL, 1998

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According to the facts of the case a young boy of 16 years age, for the purpose of
purchasing ticket for watching a cricket match to be played as the eden arden stadium in
Calcutta.
While the boy was queue, suddenly, a large number of people entered into the queue, as a
result the boy fell down and suffered severe, injuries under the fact of crowd.
In a suit for damages for the injuries the court held that the cricket association and the state
govt is liable in negligence for breach of their duties. The court held so, because the incident
occurred due to the failure of cricket association to make proper safety and security of
people in queue and to provide people facilities such as drinking water and medical relief.
So, according to the doctrine of Res Ipsa Loquitor, the proof of accident itself can be
considered as evidence of negligence to award compensation to the affected person.
DEFENSE TO NEGLIENCE
In action for negligence the plaintiff may be provided compensation from the defendant, for
the injury suffered by him. It does not mean that in all the circumstances the defendant is
bound to pay compensation to the affected person. They are some circumstance in which
the defendant can place the following defences such as contributory negligence.
CONTRIBUTORY NEGLIENCE
BUTTER FIELD V. FORESTER, 1809
In the leading case of Butter field v. Forestor, the House of Lords, laid down certain grounds.
In order to establish defence in an action for negligence.
According to the facts of the case the defendant partially abstracted the highway by putting
a pole across two part of that highway the plaintiff failed to observe the pole, ran into it and
suffered injury, if the plaintiff used reasonable care, he would have seen the pole, by which
he would have been escaped from that injury.
While deciding the case the House of Lords propounded 3 rules such as risk, contributory
negligence and plaintiffs negligence, which can be plead by the defendant as defence.
Basing up on the above three rules, it was held that the defendant is not liable to pay
compensation for the injuries suffered by the plaintiff.
CONCLUSION
Negligence is one of the grounds to establish tort if any person is effective for injuries due to
the negligence of the other person, the person who causes injury is liable to pay
compensation to the affected person. It does not mean that in all the circumstances the
defendant may be compelled to compensate the affected persons, sometimes, by using the
defences such as contributory negligence, plaintiff's negligence etc., can avoid the liability
for the tort of negligence.
9. Define the term nuisance and explain its Essential elements
Define and the term nuisance and discuss the differences between public nuisance and
private nuisance

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Nuisance is a kind of tort which causes injury to the right of a person who is in possession of
property in an act of nuisance, the improper use of one's own right disturb the enjoyment of
another it means nuisance is nothing but interference with the enjoyment of another person
that interferes under nuisance covers the use and enjoyment of water, fire, smoke, smell
fume, gas, noise, heat, electricity, diseases etc.
DEFINITIONS
STEPHEN
Stephen defined nuisance as anything done to hurt or annoyance of the lands, tenements or
heriditaments of another".
Solmond
Nuisance has be has been defined by Solmond, as the wrong of nuisance consist in causing
all going without bra full justification but not so as to much tresspass comma if escape of any
religious thing from her cell and I from elsewhere comma in to land in the position of the
plaintiff for example, water, smoke, smell, fumes, gas, noise, heat, vibration, electricity,
disease,germs animals, negligence".
Dr winfield
According to doctor winfield, nuisance, it is an unlawful interference with persons use and
enjoyment of land or of some right over or in connection with it
Example a common person open a kiln and burns bricks in his own compound and thus fills
the whole atmosphere with smoke. By this act A causes discomfort to his neighbours.
Hence, the act of A that is burning bricks in his own compound amount to nuisance.
the example of definitions is that nuisance is an act which causes injury to the right of others.
Depending upon the nature of a nuisance can be classified as follows
1. Public nuisance
2. Private nuisance
1. Public nuisance
Public nuisance is an act which injures or affects the rights of the public at large. such acts
under public nuisance may cause serious in interference with the health, safety, comfort or
convenience to the general public.
Section 268 of IPC
Section 268 of the Indian Penal Code defines public nuisance as "an act of illegal omission
which causes any common nuisance injury, danger or annoyance to persons who may have
occasion to use any public right".
According to the above definition public nuisance is an act which defines the rights of the
general public at large. Under the act of public nuisance it is not necessary to prove that
every member of the class has been injuriously affected. it is sufficient to show that a
representative section of the class has been affected.

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ROSE V. MILAS, 1815
In this case a person's stationed or parked +his boat in a narrow stream of a river which
caused obstruction to the passage of other boats. Due to this obstruction, the plaintiff was
not able to take his boat to the ferry and by this he was compelled to spend more money on
loading and unloading of goods through the land. In this case it was held at the obstruction
amounts to public nuisance and the plaintiff can bring an action because he had suffered
more damage done that suffered by others.
Nuisance is a continuous wrong
Nuisance is an act which affect the rights of others. but two constitute nuisance such effect
or injury must be a continuous one. it means a temporary or isolated act do not constitutes
the tort of nuisance.
STONE VS BOLTON, 1949
In this case, the plaintiff was passing through a highway there was a cricket ground at some
distance from their Highway he was hit by a cricket ball from the defendants ground and was
injured
When the question came before the court of law, it was held at a single or an isolated act of
hitting a cricket ball on to the road cannot amount to nuisance. The act of nuisance must
have some continuity. so, the defendant was not held liable.
2. Private nuisance
The law relating to private nuisance is based upon a Latin Maxim "Sic uter lienum" m
which means the meaning that “use your own property as not to others”.
Definition Dr winfield
Dr Winfield defined private nuisance as an unlawful interference with a person's user

enjoyment of land or right over, or in connection with it"
A private nuisance is an injury which may cause to the private rights of a person and to the
comfortable occupation of his property. A private nuisance is some unauthorised user of a
man's own property causing damage to the property of another or some unauthorised
interference with the property of another causing damage.
DIFFERENCE
PRIVATE NUISANCE PUBLIC NUISANCE
A. Private nuisance is an injury to an A. Private nuisance is an injury to the public

individual in particular in general.
b. In a private nuisance an action for b. The commission of public nuisance is not

damages lies. It means the person whose Tortious unless the individual concerned

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comfortable enjoyment of properties is proves that he had suffered particular

disturbed may be filed a suit in a civil court damage beyond that suffered the rest of the
for damages. community
c. A private nuisance may become legal by c. A public nuisance will remain illegal for
prescription. It means if private nuisance is ever. It means if any person caused public
caused continuously for a period of 20 years. nuisance for a period of 20 years, it not be
Then that nuisance will become legal one. considered as legal one it would remain as
illegal for ever.
d. In a private nuisance the plaintiff must d. In a public nuisance there may not be
prove interference with his enjoyment of interference particularly by the user of the
land. land.
e. Private nuisance is tortious in nature. e. Public nuisance is a crime in nature.

Section 268 of the IPC deals with public
nuisance.
f. In an action for private nuisance damages f. where as under public nuisance along with
may be given to the injured party. damages to the injured party, the wrongdoer
may be punished according to the provision
of law.
Essential elements of nuisance
Generally every act which causes some disturbance or interference cannot be called as
nuisance. An act to become nuisance the things such as a place, circumstances, time and
the manner of doing the act may be taken into consideration. In an action for nuisance the
plaintiff has to prove the following Essential elements against a defendant.
1. Unlawful interference
2. Interference with the use and enjoyment of land.
3. Damage
UNLAWFUL INTERFERENCE
If any person interferes with the enjoyment of another person's property, health, comfort, etc.
such act of interference may be called as nuisance. The important thing to observe in there
context such interference must be unreasonable one. This is so because in society every
person has to bear with some noise, some vibrations, some smell, etc. To a reasonable
extent. Whenever such noise, vibration, smell is unreasonable then it will become unlawful.
INTERFERENCE WITH THE USE OR ENJOYMENT OF LAND
If any damages caused to the property of the plaintiff by something which is situated on the
land of the defendant, it amounts to interference with the use of enjoyment of land for
example if any person set up vibration which collapse the building of the plaintiff amounts to
nuisance.

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HELEN's SMELTING COMPANY V. TIPPING, 1865.
According to the facts of the case, the dependent was the owner of the copper smelting
company. The plaintiff had a compound adjacently, to the factory. In that compound, the
plaintiff has planted some trees. Due to the noxious fumes escaped from the smelting
machine, the trees of the plaintiff were damaged.
When the suit for damages were filed the court held that the defendant has to run his factory
in such a way without causing injury to the trees of the plaintiff so, the defendent was held
liable to pay compensation to the plaintiff for the damages caused to his tress in the
component.
INTERFERENCE MUST BE SUBSTANTIAL
The term substantial means a real or actual. An interference to be substantial really and
actually it has to cause and unreasonable standard of comfort. Every little discomfort or
inconvenience cannot be brought to the category of nuisance. Any interference to be
substantial in nature must consist the following factors.
A. Degree or intensity
B. Duration
C. Locality
D. The mode of user of property
A. DEGREE OR INTENSITY
The degree and intensity of discomfort may be measured or determined keeping in view the
average and ordinary person but not weak, nervous, or sick person. for example, A sick
person may be noise of the children in his neighbour.
For such discomfort by the noise of the children no remedy is available in the court of law.
This is so by keeping the factors degree and intensity of discomfort.
B. DURATION
A temporary or casual inconvenience do not amounts to nuisance. If such inconvenience is

caused continuously for a considerable time then it amounts to nuisance. For example, any
inconvenience due to noise while repairing the building or a house may not be held as
nuisance.
But in some of the other circumstances, is the temporary inconvenience in so excessive in

nature, then it amounts to nuisance even if it is a temporary one.
C. LOCALITY
Locality may also be taken into consideration in order to determine whether the interference
is substantial or not. An act of inconvenience for interference which constitutes or amounts
to nuisance at one locality. But some act may not be a nuisance at some other locality. For
example a person living in a city or in Industrial area has to bare discomfort due to noise and
smell. Which comes from the industries. In the locality the discomfort due to noise or smell

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does not amount to nuisance. But if the same discomfort is caused in rural or residential
area then it amounts to nuisance. Keeping in view the locality where and by which such
discomfort is caused, it may be determined whether such act amounts the nuisance or not.
D. THE MODE OF USER OF PROPERTY
Discomfort caused by a person in a ordinary course of enjoying in a house or agricultural

land does not amount to nuisance. For example, repairing or pulling down building, noise of
a piano in a residential house etc. does not amounts to nuisance. Such disturbances are
usually tolerated on the principle of “Give and take” “ like and let live”. But if any person
caused of disturbance maliciously and negligently then it amounts to nuisance.
CH`RISTEY V. DAVY , 1951
In this case the plaintiff used to sing music for 2 to 3 hours every day. In order to disturb the plaintiff
from singing music. The defendant made noise of the furniture and crockery as retaliation for not
stooping music. When the case came before the corut of law it was held that the plaintiff’s act signing
2 to 3 hours in a day does not amount to nuisance. And at the same time the defendants act, making
noise of the furniture and crockery was considered as nuisance because the act of the defendant is
malicious or deliberate one.
DAMAGE
Generally in an action for nuisance, the plaintiff has to prove the damage which he had suffered which
he had suffered actually. But under some exceptions circumstances the plaintiff need not prove any
damage. It means there the act is presumed to cause damage, the plaintiff need not prove the damage.
DAMAGE WHICH HAS TO BE PROVED
LEMMON V. WEBB, 1894
In this case it was held the to plant a tree in one’s own land does not amounts to nuisance because by
such other right may not be affected. But if the same tree grows over soil of other, and by such
growing if any damage is caused to the other person, then he has to prove the damage which he
suffered due to over growing into his land. If he failed to prove the damage it does not amounts to
nuisance.
DAMAGE WHICH MAY BE PRESUMED
But in some of the other circumstances damage need not be proved but may be presumed
NECHOLLS V SUGAR FACTORY LRD., 1936
In this case the plaintiff had a right of fisher. In a particular river. The defendants sugar factory ltd.
Discharges effluent into the same river. The court in this case it was held he plaintiff could succeed
without proving damage because the act of the defendant itself is sufficient to presume the damage
which may cause to the plaintiff. So the dependants were held liable for nuisance.
DEFENCES
In the ordinary course of time any act which cause injury or interference to the enjoyment land by the
other person amounts to nuisance. But in some circumstances even though some interference is cause,

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the defendant will not become liable for that tort as nuisance. In such circumstances the defendant can
plead the following things its defence.
a. Grant
b. Prescription
c. Statutory Authority
a. GRANT
Sometimes the commission or omission of certain acts depends upon the terms of this contract. If the
terms of the contract allows the defences to do particular act of nuisance, no action can be brought
against him.
B. PRESCRIPTION
Some times right to commit private nuisance may be acquired as an easement by prescription. For
example, if any person was causing nuisance to others for continuous period of 20 years, without
being disturbed, then that person may acquite the right to cause nuisance. To acquire such right, that
person has to prove that he is causing since 20 years
STRUGES VS. BRIDGEMAN, 1874
In this case, a person has been using a heavy machinery in his business as a confectioner for more
than 20 years and has been making certain noise in his law. Later on the plaintiff built a consulting
room, at the end of the garden which is very near to the source of the noise, So he filed a case under
nuisance. Then the defendant pleaded that he is causing such noise since more than 2o years. So his
section of causing nuisance is acquired by prescription.
But the court held that even though he is causing noise. Since 20 years, actually the nuisance has
arises only when the plaintiff had built the consulting room. So by taking the time of consulting room
into consideration the court held that the defendant may not acquire the right under prescription and
so be liable for such noise as nuisance.
C. STATUTORY AUTHORITY
When ever a statue specially authorise a certain act to be done, no action will cause nuisance. For this
there is an established rule which says that no action will lie for doing nuisance which the legislation
had authorities. But such nuisance can or cause without negligence.
VANOFAN VS. COMPANYM 1860
According to the fat of the case the defendant company had statutory authority to use lucrative
engines. On one day a fire accident was caused due to escape of its sparks. In the investing it was
proved that the engines were constructed with due care even then escape of such parks which led to
the fire accident in quite common or natural. So the court held that the defendant company is not
liable because such act is caused under statutory authority and more over there is no any kind of
negligence.
CONCLUSION

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Nuisance is a kind of act in which the uses of property causes some disturbance or interference to the
enjoyment of others. Depending upon the nature and result of such as the nuisance has been classified
as private and public nuisance.
It does not mean that in all the circumstances all such gets amounts to nuisance because there are
some exception the basis of conscription and by statutory authority. So an act which amounts to
nuisance, may not be a nuisance at some other place.
10. Explain the doctrine “strict Liability” and absolute liability with reference to vicarious liability”?
b. Explain the principle laid down in M.C. Mehta vs. Union of India.
c. Explain the doctrine of strict liability and its exceptions?
GENERAL INTRODUCTION
Generally a wrongful act which violates the legal right of a person can be called as tort. When ever
the legal right of a person is affected or violated, he may be provided damages or compensation under
the rule as unliquidated damages. At the same time the various provisions under law of torts posses
some unique or special characteristics. For example generally if any person violated will become
liable. But the unique feature which is provided under law of torts is vicarious liability. Under the rule
of vicarious liability some kind of relationship between the parties must be in existence. For example
under the following relationships a master will become liable vicariously of the act or tort committed
by his servant. In the same manner the principal will vicariously become liable for the acts or torts
committed by his agent.
Apart from the above rules, there are some other rules which are unique in character such as rule of
strict liability’ and ‘rule of absolute liability’ The rule known as strict liability’ has been laid down by
the courts in England in Ryland’s v. Fletcher’s case in the year 1868. A rule which is similar to that
of strict liability in England has been laid down in India in M.c. Mehta union of India 1987. This rule
is known as “ Doctrine of Absolute liability”. This doctrine of absolute liability is more harsh and
rigid than the rule of strict liability. There is another rule under Motors Vehicles Act, 1988 which is
known as “NO FAULT LIABILITY’. Under this rule where is a provision to give compulsory
compensation to the victims in hit and run accident cases. According to the provisions of the act in
case of death 50,000 and in case of permanent incapacity rs25,000 compulsorily must be given as
compensation. These rules are doctrines may be applied by the courts appropriately to award
compensation to the aggrieved persons.
RULE OF STRICT LIABILITY
The rule of strict liability has been laid down by Blackburn.J. in Ryland v. Fletcher case in the year
1868. Under this rule the liability of the defendant in more strict than in the ordinary cases. Under this
rule sometimes even innocent persons may also be held liable for harm caused to others due to escape
of things from their land. It means under this rule liability is based on the harm a caused to the other
but not on the basis of blame worthiness.
Generally this rule is applicable towards in the course of non-natural user of his land. The user of land
is deemed to be responsible for the accumulation on it. In the process of such accumulation on it. In
the process of such accumulation if any harm or interference is caused escape of a particular thing
from his land, then he will become seriously liable. The rule of strict liability is applicable to various
things, such as a fire, gas explosives, electricity, oil, noxious fames, rusted wires, vibrations , prisons,
etc..

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Rylands v. flecter, 1859
According to the facts of this case the plaintiff Ryland’s was a lessee which is adjacent(basis’s the
mine. And the defendant fletchers is the owner of a land which is adjacent (basics the mine ) to the
mines of the plaintiff. The plaintiff in his mines had worked where the dependants vertical shafts
(locks) were in existence. After sometime the dependant by employing competent contractors
constructed a tank (reservoir) in that land. The shafts or locks of that reservoir were connected to the
passages of the plaintiffs old mines. Infact the shafts were out of use and filled with earth. But when
the reservoir was ready and was filed. The water entered into the shafts, flowed into the passages of
plaintiff old mine. As its consequence the entire mine of the plaintiff was flooded.
When the plaintiff files a suit, the house of lords held that the dependants were liable even though
they were not guilty of negligence by themselves or by their servants. While deciding the case the
house of lords have laid down the rule known as strict liability. While laying down this rule
blackbrun. J. Who is one of the house of lords stated that if any person collects and keeps anything in
his land the escape or which may cause damage to the other person will become strictly liable
whenever such thing escaped and caused damage.
ESSENTIALS ELEMENTS
The above discussions which regards to the rule strict liability does not mean, that it amy applied by
the courts in all kinds of circumstances. For the application above rule there are two essential
elements which must be in existence.
1. Escape of things from dependants land.
2. Non natural use of lands
1. ESCAPE OF THINGS FROM DEPENDANTS LAND
In this essential elements there is term known as “escape”. The meaning of the term escape in the
context is escape of a thing from a place which was occupied and controlled by a person, into the
place which was occupied and controlled by a other person. Under this rule in order to make the
defendant liable two points must be taken into consideration. First one is the dependant had to make
non-natural use of land and the second one is escape of a particulars thing which causes damage.
REND V. LYOES AND COMPANY, 1947
According to the facts of the case the dependant had an ordinance factory in which they use to take
high explosive shells for the govt. The plaintiff was working as an inspector in the dependants shells
factory. When the plaintiff was inspecting the factory there was an explosion in the factory by which
the plaintiff (inspector) was injured. There was no proof of any negligence on the part of the
dependant. So according to the contention of the plaintiff even though were has been no negligence
on the part of dependant, they should be held liable on the basis of rule in RYLAND V. FALTCHER.
But the house of lords held the rule which was laid down in Ryland’s case is not applicable to this
read’s case. According to the house of lords, the accident which caused injury to the inspector had
occurred in the premises of the factory and more over not due to escape of any thing from the factory.
The rule of strict liability which is laid down in Ryland v. Fletcher may followed only when there
escape of a particular thing. Hence in this it was held that dependants (factory management) is not
liable.
a. Natural use of thing

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the rule of strict liability of Ryland’s case does not apply in the cases where the things are present on a
person’s land in the natural form or arise on the land, even thought there are dangerous.
b. ACT OF THE GOD
The implied meaning under the expression’ act of god’ is that the dependant is not liable for any
accident in which he can show or prove that such accident took place due to natural causes without
human intervention and could not have been prevented by any kind of pains and care. If any damage
is caused, he can avoid liability by putting forth the excuse that the escape of the thing was due to the
act of god.
c. ACT OF A STRANGER
The dependant will not become liable for the escape of a thing which was caused by third (stranger)
person. But such escapes must be caused by+ a third person without the knowledge or authority of the
defendant.
RICKARDS V. LORTHIAN, 1913
According to a facts of the case some person who is a stranger (third person) had closed latrine pipe
which was on the dependants lands without his knowledge or authority. Due to closing the latrine
pipe, bad and water flowed into the plaintiff’s land and caused damages to his goods. The court held
that dependant is not liable because such escape of bad water was cause due to act of the third person
and more over there was no negligence on part of the dependant.
d. COMMON BENEFIT:
If the dangerous things been brought on the dependant’s land for the common benefit of both the
plaintiff and dependant, the dependant will not be liable for harm caused by the escape of such things
provided that there had been no negligence on the part of the dependant.
CARSTAIRS V. TAYLOR, 1871
According to the facts of this case the plaintiff and the dependant were living in the name building.
The plaintiff was living in the ground floor and dependant living in the first floor of the house. The
water from the roof use to drain into a tank and from there it used to flow out through a drain which in
the first floor. In the some made holes in the tank and water leased from it causing damage to the
plaintiff’s property. When a suit for damages has been filed by the plaintiff the court held that
dependant was not liable because such package was caused due to the wholes made by the rats and
Dependant had no control over rats.
e. PLAINTIFF
The rule of strict liability in Ryland’s case if not applicable in the cases where the thing which
escaped was brought or kept upon dependant’s premises by the dependant with the consent of the
plaintiff.
f. MISTAKE OF PLAINTIFF
The rule of strict liability is not applicable where the thing escaped from the dependant’s land was due
to mistake. The plaintiff that means if the plaintiff had the knowledge of the danger, even then if he

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failed to take proper care to avoid such escape, then the plaintiff cannot bring an action for damages
against the dependant.
g. STATUTORY AUTHORITY
The rule of strict liability is not applicable where the public authorities which are meant for storing
water, gas, electricity, and the like were exempted forms liability by statue. Put in order to avoid
liability the dependants have to prove that they have taken reasonable case.
RULE OF ABSOLUTE LAIBILITY
In the case of the rule of strict liability which has been in Ryland’s vs. Fletcher’s case is subject to
certain exceptions. The rule which was laid down in 19 th century did a fully meet the needs of a
modern industrial society. Hence a law rule has been laid down by the SC of India in the case of
M.C. Mehta v. Union of India. This new rule is known as rule of “Absolute Liability’. This law rule is
harsher and rigid than the rule of strict liability and is not subject to any kind of exceptions or
defences. The new rule of absolute liability applies in a case where the dependant is carrying on a
hazardous or inherently dangerous activity and by which harm is caused to a person on account or an
accident in the operation of such dangerous activity.
M.C. MEHTA VS. UNION OF INDIA, 1987
According to the facts of the case one of the units of the dependant’s factory shri ram Foods and
Fertilizers Industries was manufacturing oleum gas. That gas manufacturing unit was situated in a
residential locality of Delhi. On 4th and 6th December, 1985, there was escape of oleum gas from the
dependant from the defendant’s factory, resulting in death of an advocate and several others have
been affected seriously. Hence a writ petition has been filed in the SC by the way of public interest
litigation. For the purpose of obtaining compensation as well as to restrain the company from
producing such dangerous gas.
The dependant’s company contented that it had been taken all safty measure against the danger and
therefore it should be permitted to restraint production. After pursing the contention of the dependant,
a bench of three judges permitted the company to restraint production. But while the writ petition was
pending there was escape of oleum gas for the second time from the dependants factory.
Then the SC held that the rule of strict liability in Rylands v. Fletcher’s case which was established
during 19th century cannot afford the needs of the present day economic and social structure. Hence
the SC of India felt that it is necessary to evolve new principle which would adequately deal with the
new rule of absolute liability without any exceptions to it. By applying the new rule the SC held that
the dependant Shri Ram Foods and Fertilizers company was liable to pay compensation to all
affected or injured persons even though there had been no negligence on its part.
BHOPAL GAS LEAK DISASTER
UNION CAREIGE CORPORATION V. UNION OF INDIA’S CASE
INTRODUCTION, FACTS AND DECISION
On the night of December, 13, 1984, the most tragic industrial disaster occurred in which thousand so
person died and suffered various kinds of injuries and diseases. This tragedy occurred as a result of
leakage of METHYL ISOUJANATE (IIIC) Which is highly tragic gas, from which manufacturing
process etc... This company in Bhopal is subsidiary of a multinational union carbide corporation
(UCC) registered in USA. On behalf of victims a large number of cases were filed in Bhopal agasint

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the UCIR and also against the UCC in USA. In order to avoid confusion with regards to jurisdiction
and also to provide compensation immediately the govt of India enacted the Bhopal Gas Leak
Disaster (processing of claims) act 1985
Section 3 : Section 3 of the above act, 1985 conferred power on the central govt to represent and act in
place of every person who are connected and affected by the disaster.
Section 9 : section 9 of the above said act empowered the central govt to frame the scheme framed by
the central govt is known as Bhopal gas Leak Disaster (Registration and processing of claims)
Scheme, 1985.
By exercising the power which was provided under section 3 of the act, the govt of India has filed a
suit on behalf of every victims of the disaster in the united states district court of New York. But this
suit by the govt of India has been dismissed on the grounds of forum Non convenience. Later as the
consequence of dismissal of suit in USA by the New York district court, the union of India and filed
suit in the District Court of Bhopal.
During the trial of the Bhopal Gas disaster case before the Bhopal District Court, another important
Case M.C. MEHTHA VS. UNION OF INDIA came out for hearing of the SC of India. In this M.C.
MEHTA’s case, the SC of India, by laying down a new rule known as absolute liability has given the
compensation to the victims in the year 1987.
By applying the new rule, the district judge of Bhopal ordered the union carbide corporation to pay
rs.350 crores by way of interim relief to the gas victims. After wards the corporation filed a revision
petition before the MP high court against the order of the Bhopal District Court. The Mp High court
by considering the revision petition reduced the quantum of interim compensation from rs 350 Crores
to r s250 crores
Afterwards the corporation filed an appeal against the order of Madhya Pradesh High court ordered
the union Carbide Corporation to pay a sum of 470 million US Dollars (approx rs 750 crores) as
compensation to the union of India towards the will settlements of claims and liabilities replaced to
and arising put of the Bhopal gas Disaster.
CONCLUSION
Even though the liability of a person under the rule of strict liability for the thing escaped due to use
natural use of land, is subject to some exceptions. By such exception and defences the dependants can
escape from paying compensation to injured parties. In orders to meet the changed needs of modern
industrial society a new rule known as absolute liability has been laid down without any exception.
The application of this rule by the courts of India in various cases shows the accomplishment of its
purpose.
11. Who an be considered as ‘joint tort feasors’ and what are their liabilities under law of torts
MEANING AND DEFINATIONS
The person who act jointly for the commission of a wrongful act with common object are known as
joint tort feasors. That means where a number of persons aid or assist, or counsel or direct, or join
together to commit a wrongful act those persons are called a joint tort feasors. The necessary element
of joint feasors says that there must be the intention to cause injury jointly to the plaintiff . Simply
having a common object is not the essential element of joint tort feasors, but they should jointly out to
achieve their common object. Then only they are liable as joint tort feasors.

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DEFINATION
The term joint tort feasors has no been defined under the provisions of law of torts. Hence the court of
appeal recognised the need for definition and laid down the following definition while deciding the
koursk’s case.
The court of appeal in kourk’s case defined the term joint tortfeasors as “ persons are said to be joint
(1) tort-feasors when their respective shares in the commission of the tort are done in furtherance of a
common design.. But mere similarity of design on the part of independent act r, causing independent
damage is not enough, there must be concerted action to a common end”
The following case law is good example on the point of joint tortfeasors.
BROOK VS. BOOL, 1928
The facts of the case says that the defendants A and B and the plaintiff were the tenants in a shop the
premises of which adjoining an communicating internally with in the shop, one day the plaintiff had
requested the dependant to visit the shop at night from time to time see that every thing was secure.
During the cause of visits in the night time, the defendant observed the smell of gas coming from the
shop. So the dependant along with other defendant Morris, who was much younger than him, went
into the shop to examine the gas pipe, with a naked light.
Then an explosion occurred resulting in personal injury to Morris and damage to the plaintiff’s goods
in the shop.
So the plaintiff brought an action against teh defendants A and Morris, alleging that the damage was
due to his negligence. The ocurt held that although the explosion was the iresult of one party but eh
object of the both was the same. Hence the court held that the defendants were liable as joint
tortfeasors.
ESSENTIAL ELEMENTS
It does not means that joint liability may arise in all the circumstance. The commission of a wrongful
act which was done jointly by the defendants for the purpose of achieving common, object can be
considered as joint tortfeasors. To determine the liability as joint tort feasors. To determine the
liability as joint tort feasors the following circumstances must be in existence.
A. agency
b. Vicarious liability
c. Joint action
A. AGENCY
The contract of agency is based upon the principal and agent relationship. Under it, the agent hast o
act according to the directions of his principal. If the principal entrust a lawful function to the agent,
in the circumstances if the agent committed a wrong, then they cannot be considered as joint tort
feasors. But if the principal entrusts an unlawful function and if such function has been performed by
the agent which amounts to tort then both the principal and agent are liable under law of tort as “joint
Tort Feasors”.
B. VICARIOUS LIABILITY

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Vicarious liability is one which may arise in tort on the basis of certain relationships of owner and
servant, guardian and ward etc. In the circumstances of such relationship for the torts committed by
the servant or ward, the master and guardian are vicariously liable respectively. In such circumstance
both the master and servant, guardian and ward are known as joint tortfeasors.
c. JOINT ACTION
The third essential element joint action says that whenever two or more persons joined together to
committed an ac which is unlawful. They become joint tortfeasors and hence they are jointly liable.
The commission of such unlawful act does not make any difference, what act one has done. If the
independent acts of several persons caused the name damage may are not joint tort feasors because
there was no common design or object.
PRINCIPLES
There are certain principles which have t be followed at the time or determing the joint liability of
persons as joint tortfeasors. They are follows
A. Joint tortfeasrs are liable jointly and separately
b. Judgement against one tortfeasor is no bar for action against others.
c. Contribution between wrongdoers.
a. JOINT TORT FEASORS ARE LIABLE JOINLTY AND SEPERATELY
The joint tortfeasors are liable jointly and separately. It means the injured party and recover their full
or entire amount of damages from any one of the tortfeasors separately or from all of the tortfeasors
jointly through a common action.
B. JUDGEMENT AGAINST ONE TORT FEASOR IS NO BAR FOR ACTION AGAINST

OTHERS
ENGLISH LAW :- According to English law a judgement against one trotfeasor can be considered as
bar for further action against the other remaining tortfeasors. It means whenever the injured party
obtained compensation he cannot file a suit against the remaining tortfeasors even though the
judgement dissatisfies him.
But later, this rule has been abolished by passing law Reform (Married women and Tortfeasors) Act,
1935. According to sec 6 (1) (A) of the act, the injured party after recovering damages from any one
of the tortfeasors, if he do not satisfy which the compensation, then he can file and action against the
other remaining tortfeasors, and no bar will be in existence for such action.
CONDITIONS:
In order to file a suit under section 6(1) (a) of the act, against the remaining tort feasors the following
conditions must be fulfilled.
1. If the injured party has been awarded full damages in the first against one of the several joint
trotfeasors then he will not have the right to bring action against the remaining tortfeasors.
2. The sum of damages which the injured party want to recover not excising the amount of damages
awarded in the first action.

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3. The injured party is not utilised to claim courts of the suit in the second action. But if the court
satisfies that there are reasonable grounds. Then the court may allow the injured party claim costs
even in the second action against the remaining that factors.
C. CONTRIBUTION BETWEEN WRONGDOERS:
RULE OF MERRYWEATHER (MEERRYWEATHER V. NIXAN, 1979)
The rule of Marryweather with regards to contribution between wrongdoers has been laid down by
house of lords while deciding Merrywheather vs. Nixan’s case in the year 1799. But later in the year
1935 this Merry Weather rule has been abolished by passing law reforms (married women and
tortfessors) Act, 1935. Later this 1935 act also has been abolished by passing civil liabilities
(contribution) Act, 1976.
According to Merry weather rule if the plaintiff has recovered the full amount of damages from any of
the joint tortfeasors, then he was not entitled to contribution by other wrongdoers.
In India there were not acts like English law reforms Act, 1935 and the civil Liabilities (contribution)
Act, 1978 to regulate the law relating to contribution between the joint tortfeasors. In India if a
wrongful act has been done by two persons jointly, they should be equally liable to pay
compensation to the injured party and to tortfeasor may be exempted from liability.
12. a. Define and explain the essentials elements of ‘malicious prosecution’?
b. define ‘malicious prosecution and
Distinguish it with false imprisonment?
INTRODUCTION
Generally if a person committed a tort and as its consequence if the other party suffered injury then,
the injured party can bring an action against the wrongdoer of tort. But there may be some other
circumstances in which an action was brought against other person without any reasonable or
probable cause but with the intention of initiating judicial criminal proceedings. If any person
without reasonable if amounts to tort which is known as ‘malicious prosecution’. This kid of tort
malicious prosecution consisted of two terms which gives the following meaning separately.
MALICIOUS
The term malicious means feeling of ill-will, enemity or spite. But the term malicious in an action of
tort contextually means some improper, indirect and wrongful motive .
PROSECUTION;-
The term prosecution means a proceeding in a court of law changing a person with a crime.
Hence the term under the tort ‘malicious prosecution’ gives the meaning that initiation of criminal
proceedings by one party against the other with the evil intention of causing suffering to the other
party without any reasonable or probable cause.

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DEFINATIONS
The term malicious prosecution has been as “ a tort maliciously and without reasonable and
probable cause to initiate against another judicial criminal proceedings which terminate in favour of
that other and which results in damage to his reputation, person freedom or property’.
ESSENTIAL ELEMENTS
Initiation of judicial criminal proceedings be one person against another does not amounts malicious
prosecution unless it consists of the following essential elements which the plaintiff has to prove.
a. that he was prosecuted by the defendant
b. that the defendant acted without any reasonable and probable cause.
c. That the defendant was actuated with malice.
d. That the proceedings ended in favour of the plaintiff i.e. he was acquitted in the criminal case.
f. That the plaintiff suffered some damage
A. THE DEFENDANT PROCECUTED THE PLAINTIFF
The term prosecution means a proceeding in a court of law charging a person with a crime.
Generally a person setting the criminal law in motion may either represent a complaint to the
magistrate or give information to a police officer. If any person with the knowledge had made
untrue complaint to the police officer or to magistrate for the purpose of initiating criminal
proceedings or to mislead the police in their investigation may amount to malicious prosecution.
But if the magistrate dismissed the complaint as disclosing no offence does not amounts to malicious
prosecution but may be considered as an unsuccessful attempt to set the criminal law in motion.
B. THAT THE DEFENDANT ACTED WITHOUT ANY RESONABLE AND PROBABLE CAUSE:
The term reasonable and probable cause means an honest belief of a person with regards to guilt or
wrong of the another person who is an accussed in this regard. The question of reasonable and
probable cause does not depend upon the actual existence of facts, but upon the reasonable
bonafide. (good faith) belief in the existence of such facts. That means if a person acts on his own
knowledge, with regards to a fact that his complaint was a false one, then it can be considered as
unreasonable or improbable cause.
C. MALICIOUS INTENTION
The term malice co textually means some improper, indirect and wrongful motive, generally such
malice may arise out of enemity, ill feeling, spite or for a gain. If any person had such enemity or ill
feeling by which if he made a complaint to a police officer or magistrate without proper or direct
cause then it may amount to malicious intention. If any person with such malicious intention
compelled the other person for judicial proceedings it amounts to malicious prosecution.
D. TERMINATIONOF PROCEEDINGS IN FAVOUR OF THE PLAINTIFF

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The plaintiff who filed suit for tort under malicious prosecution has to prove or show the
proceedings were terminated in his plaintiff’s favour.
E. DAMAGE
If the person has been maliciously prosecuted can bring, an action against the prosecutor only if he
suffers some damage from such prosecution. If no damage has been suffered by him, then he can
not sue. The damage suffered may be any one of the following three kinds.
A. DAMAGE TO PERSON’S FAME:
If malicious prosecution affects the character of that person it amounts to damage to the concerned
person’s fame. Whenever such damage was caused be successfully bring an action against the
prosecutor concerned.
b. DAMAGE TO THE PERSON
Due to malicious prosecution if any person suffered with punishment by losing his life, limb or
liberty, then it amounts to damage to the person. The person to whom such damage due to
malicious prosecution was caused can also successfully bring an action or damages.
C. DAMAGE TO HIS PROPERTY
Due to malicious prosecution if any person has been forced to spend money in necessary charges
aquit himself can also bring an action for damages. In this regard he can file a suit a damage to
recover the fees of a lawyer, loss of business during trail etc.
DISTINCTION BETWEEM MALICIOUS PROSECUTION AND FALSE IMPRISONMENT
A. Malicious prosecution in the unlawful use of legal procedure to bring about legal confinement.
Where as false imprisonment is the invasion of the interest against the freedom of a person.
2. A wrong of malicious prosecution is not based on forcible and direct injury but merely
consequential whereas a wrong of false imprisonment is based on forcible and direct act of physical
interference with the person or the property of another.
CONCLUSION
The wrongful act malicious prosecution has been given the status of tort. The purpose of giving such
status as tort is to prevent the person from misusing the judicial procedure. The provision for
malicious prosecution prevents a person who had malafide. (bad intention) to make complaints in
the criminal matters. Inspite of this provision if any person enabled another person for judicial
criminal prosecution without reasonable and probable cause then the person who made such
complaint is liable to any compensation to the injured party,
14. Explain the composition , constitution , procedure and objected of the control consumer
councils?
or

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what is the role assigned to the consumer councils under the provisions of consumer protection act?
or
Explain the composition, procedure and objects of the central and state consumer councils?
or
what is the role assigned to the consumer councils under the provisions of consumer protection
act?
Introduction:
the main objects of the Consumer protection Act, 1986 is protecting the interest
and providing remedies to the consumers concerned . In order to provide remedy to the affected
consumers, three kinds of redressal agencies under Sec 9 (a), (b), and (c) have been established . sec
9(a) District Forum under Sec 9(b) state commission and under sec 9(c) National commission can be
established. A part from these three kinds of redressal agencies, sections 4 to 8 of the consumer
protection act provides provisions for the establishment of consumer pro councils. the main object
of these councils is to promote and protect the rights the consumers.
CONSUMER PROTECTION COUNCILS (SEC 4 TO 8)
(CENTRAL CONSUMER PROTECTION COUNCIL SEC 4 AND STATE

CONSUMER PROTECTION COUNCILS SEC.7)
Sec central Consumer Protection Council’s Establishements
The central Consumer Protection council is also known as Central Council Sec 4 of the
consumer protection provides for the establishments of Central Council.
Sec 4(1):
Under Sec 4 (1) the central Government has the power to establish central council by
notification
Sec 4 (2):
Sec 4 (2) of the act says that the central council shall consists of the following persons as its
chairman and members.
Sec 4(2) (a): According to sec 4(2) (a) the minister in charge of consumer affairs in the central
Government shall act as the Chairman of Central Council
Sec 4(2) (b): According to sec 4 (2) (b) the central council shall consists of number of members who
shall not exceed 150 from official as well as non-official who may represent the interests of various
sections which were prescribed by the act.
CONSTITUTION OF THE COUNCIL (Sec4 (2) (b)

Sec 4 (2) (b) of the acc says that the central council consists of 150 members . for the purpose of

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giving representation to all concerned sections of people . the various sections of people who may
represent in the council as the members are from consumers, traders, industrialists, women weaker
sections such S.C and S.T. etc.
The number of members who may represent in the Central Council are as follows:-
1. 8 parliamentarians ( 5 from Lok Sabha and 3 from Rajya Sabha)

2. Secretary of the National commission for scheduled castes and schedule Tribes.
3. Representatives of the central Government Department and organisations concerned
which should not exceeds 20 in number.
4. Representative of the consumer organisations or consumer which should not exceed 35.
5. Representatives of women not more than 10.
6. Farmers, traders and industrialists nor more than 20.
7. Persons capable of representing consumer interest not more than 15 and etc.
It is important to note that according to the notification issued by the central

government on 23th November , 1993 the central council shall consists of not more than 150
members and they may remain in office for a term of three years.
FUNCTIONS OF THE COUNCIL

for the purpose of performing its functions the members of the central council may from as various
working groups . These working groups have to submit reeport in which they are to suggest a
suitable amendments to the consumer protection. Basing upon the report submitted by these
working groups the act has been amended as consumer protection (Amendment) 1993
PROCEDURE FOR METTINGS (SEC 5)
Sec 5 of the act read with rule 3 provides procedure to be followed by one the central council for
the purpose of conducting meetings.
Sec 5(1): According to sec5(1) of the act the Central Council may meet whenever necessary but at
least once in a year.
Sec 5 (2): According section 5 (2) the Chairman has the power arrange and conduct meeting at
such time and place as he may think fit. with regards to number of meetings , prior to amendment
act, 1993 the council was required to have three meetings in a year. but that 3 times has been
reduced to one. through the amendment you ever if the chairman think it necessary he can conduct
the meeting more than once also.
PROCEDURE
The centres council shall follow the following procedure whenever the meetings are held.
a) proper authority: The meeting should be called by a proper authority. The Chairman would be the
proper authority of the council.

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b) Notice:
The chairman has to give proper and adequate notice to each and every member at least
before ten days of the meeting. The notice which has been served to the members shall consists of
the specification with regards to the place the day and house of meeting and also the statement
which has to be discussed or transacted in that meeting. If the chairman intentionally or deliberately
committed to serve nocice to any member, such ommission may hold the meeting invalid.
c) Presiding officer:
The meeting shall be presided over the chairman of the council. In the absence of chairman
the Vice- chairman and in the absence of both chairman and vice- chairman the council has to elect
a member among them to preside over the meeting.
d) Resolution:
The resolution of council are only recommendations in nature. To Pass the resolution
simple majority of the members present and voting during that time.
OBJECTS OF THE CAPITAL COUNCIL
Sec 6 : the main or the basic object of the central council is to promote and protect the interests of
the commission in that process Sec 6 of the consumer protection act has set forth the following
things as the objects of the central council.
Sec 6 (a): The central Council has to protect the rights of the consumers against the marketing of
goods which are dangerous or hazardous to life and property.
Sec 6 (b):
The central council protects the consumers right to be informed about the quantity,
potency, purity , standard and price of goods etc. against unfair trade practices.
Sec 6 (c): the central council has to protects the consumers right to be assured with regards to
access t variety of gods at competative prices.
Sec 6 (d): The central council has to protect the right of the consumers with regards to be heard
and to be assured by whic the interests of the consumers will receive proper or due consideration at
appropriate forums.
Sec 6 (e): The central Council has to protect the right of the consumer, so that he can seek or avail
proper remedy through the respective redressal agencies against unfair trade practices and
exploitation of consumers.
Sec 6 (f): the less and important object of the central name council is providing consumer education
to the people so that the people may aware their rights which they are exercise appropriately.
The object of providing consumer education by the council be accomplished or fulfilled by

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arranging varoius programmes with regards to health, nutrition, ford adulteration, pollution ,
environment etc.
STATE CONSUMER PROTECTION COUNCILS SEC 7

Sec 7 :
the consumer protection act uder sec 7 provides provisions for the establishments of
consumer protection councils these councils are also known as state councils.
Establishments: Sec 7 (1):

under Sec 7 (1) the state Governmeent has the power to establish the state council by
issuing a notification.
Constitution of council: sec . 7 (2) :
Sec 7 (2) provides provisions which regards to the chairman and members which the state
council shall consists of
Sec 7 (2) (a): according to sec 7 (2) (a) of the minister incharge of consumer affairs in state
Government has to act as the chairman of the state council.
Sec 7 (2) (b): According to sec 7 (2) (b) of the act, the state council shall consists of 100 members
who may represent official, non-official and also the persons of such intrest prescribed by the state
government.
Meetings to be followed ‘: Sec 7 (4):

Sec 7 (4) of the act says that the procedure to be followed by the state council has been left to
the state Government keeping in view Sec4 of the consumer protection act, which deals with the
procedure of the central council.
CONSTITUTIONAL AND WOTRKING OF THE STATE COUNCILS

According to the G.C. No 373 which was passed on 1th august, 1989 , the state government under
sec 7 (2) (a) has the power to constitute state council by issuing ratification in the official gazette,
which consisted of 100 members the 100 members of the state council may be nominated by the
state Government force among the following categories of person.
1) Chairman:
the minister in charge of department of civil upplies in the state may be nominated in
the chairman of the state council.
2 Vice chairman: The exofficio Secreatry to government. food and agriculture (civil supplies) may be
nominated as the vice- chairman of the state council by the state Government. a Part from the
chairman and vice –chairman representation may be given to the persons from various sections of
people such legislations, governments departments , consumers and consumer organisations,
women, warmers, trade and industries etc. it is important to note that the maximum representation
of members shall not exeed 100. and their term of office is three years.

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PROEDURE OD STATE COUNCIL SEC7 (4) (2-3)
Sec 7 (4) (2- B) According to this section of the act the procedure that has to be followed by the
state council for the purpose of conducting meetings is similar to that of the act forcentral council.
explanation for sec 6 (1) and (2) of the act has been given earlier.
OBJECTS OF THE STATE COUNCIL (SEC 3)
SEC 3:
the main object of both centre 1 and state council is to promote and protect the interest of the
consumers under sec 8 of the consumer protection act, the objects have been given which the state
council has to achieve. the objects of state council under sec 3 of the act are similar to that of sec 6
(a to f) which prescribes the objects of the central council. some of the objects which have
prescribed by the act towards centre 1 and state council are protecting the right of the consumers
with regrads to information , right to choose, right tohear, right to speak,redressed and the right to
consumer education to.
CONCLUSION: the consumer protection act, 1986 is one (5) which is exclusively meant for
protecting the consumers. For such purpose, under sec 9 clauses (a), (b) and (c) redressal agencies
(District Forum, State commission, and national commission) have been established a part from
these three kinds of redressal agencies under sec 4 to 8 of the act central and state councils havee
been established with the object of promoting and protecting the consumers. along with such
objects the councils have to submit reports of recommendations to suggest appropriate. hence it is
very clear that both the redressal agencies and councils are equally plays prominent role in the
process of protecting the rights of the consumers.
15. a) define and explain the terms complaint and complainent?
b) what is the procedure to file a compliant by the complainant under the provisions of
cosumer act.
CONTENTS OF THE COMPLAINT
Generally a complaint filed in a consumer forum must contain all the relevant details as to
alleged defect in goods or defciency n services. apart from the complaint has to contain the
following things.
a) name, description and address of the complaintant.
b) Name, description and address of the opposite party.

c) The facts realting to complaint including the nature of defect or deficiency, place time
etc.
d) the relief which the complaint claims.
Apart from above things, every complaint must be accompained by the documents in

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support of the allegations contained in the complaint. In some of the states the consumer
forums complaint. such complaint with signature can be filled either by the complainant
himself or by his authorised agent either personally or by post. there is no reqitement for
paying court fee.
PROCEDURE AFTER RECEIVING COMPLAINT (SEC 13)
Sec 12 provides provisions for filing complaint by the complainant. and sec 13 provides
procedure to be followed by the forum after receiving complaint by the complaint.
According to which the following things must be fulfilled by the forum.
Sec 13 (1) (a): the forum has to refer the copy of the complaint to the opposite party.
section 13 (1) (b):

If the opposite party after receiving copy of complaint denies or disputes the allegations,
then the forum by applying Sec 13 (1) (c) to (g) can settle the dispute
Sec 13 (1) (c):- According to sec 13 (1) (c) if the defect in good alleged cannot be determined
without proper test or analysis then the forum can obtain a sample of the good and send it to
the appropriate laboratory for test or analysis. basing upon the report submitted by the
appropriate laboratory the district forum may settel the dispute within a period of 45 days.
1) pecuniary Jurisdiction sec . 11(1)
2) Territorial Jurisdiction sec 11 (2)
3) subject matter jurisdiction sec 11 (3)
1) PECUNIARY JURISDICTION SEC 11 (1)
Sec 11 (1) of the act which provides provisions for pecuniary jurisdiction of the district forum
says that it can entertain complaints where the value of the goods or services and the
compensation claimed does not exceed rupees 5 lakhs prior to amendment act, 1993 the
pecuniary jurisdiction of the district forum was rupees 1 lakh only. but it was raissed upto
rupees 5 lakhs by the amendment act provisions.
2) TERRITORIAL JURISDICTION (Sec 11 (2)):

Sec 11 (2) deals with territorial jurisdiction of the district forum. it says that the complaint can
be instituted in adistrict forum within the local limits of who jurisdiction while determining
territorial jurisdiction the following things can be taken into consideration.
where the opposite party or each of the opposite parties at the time of institution of the
complaint.
a) actually and voluntarily resides, carries on business has a branch offices or personally works
for gain and where the cause of action wholly or in part arises.

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subject master jurisdiction :
The district forum has the power to entertain those matters which comes under the definition
of consumer, goods, services etc. it means the district forum shall have the jurisdiction to
entertain complaints only in respect of goods and services.
PROCEDURE FOR FILLING COMPLAINT (SEC 12):
members (sec 10 (b)):- According sec 10 (b) the state government has the over to an point two
reasons as the members of the district forum, out of whom one must be a woman. the persons
who have ability integrity and standing and have adequate or experience of a have shown
capacity in dealing with problems relating to economies law, accountancy, industry, public
affairs or administration may be ajoined members to the district forum.
Every appontment for the district forum such has priesdent and member may be made
by the state government on the recommendattion of a selection committee. such selection
committee consists of the following persons as chairman and two members.
COMPOSITION OF SELECTION COMMITTEE

a) chairman: the president of the state commission may act as the chairman to the selection
committee.
b) member :- the secretary law department of the state may act as member.
c) Another member:- the secretary in change of the department dealing with consumer affairs
in the state may act as another member to the selection committee.
Hence the selection committee shall consists of a chairman and to other members. their
terms of office is 3 years or until they attain 65 years of age with no eligibility for reappointment
on the recommendation of this selection committee the state government may a point the
president and members to the district forum.
JURISDICTION OF THE DISTRICT FORUM (SEC 11)

Meaning:- The term jurisdiction gives different meaning indifferent contexts. but in this context
the term jurisdiction means the extent of authority to administer justice not only with refrence
to the subject – matter of suit but also to the tenitorial and pecuniary limits. bearing upon this
there is a principle which says that a judgements a court or forum without jurisdiction is null and
void.
JURISDICTION OF THE DISTRICT FORUM (SEC 11)
Sec 11 of the consumer protection act which determines the jurisdiction of the district forum is
subject to come of the provisions of the act. it means while determing the jurisdiction under sec
11 some of the others provisions may also be taken into consideration. according sec 11 of the
act the jurisdiction of the district forum can be classified into following categories.

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16. a ) Explain about the establishment, object, jurisdiction, powers and fuctions of district
forum?
b) what are the various protections and remedies that are available to the aggrieved
consumers under the act?
DISTRICT FORUM
Introduction:
consumer protection act, 1996 is one which is meant for protecting the interests of the
consumers. the provisions under this act also provides appropriate remedies to the affected
consumers. for the purpose providing remedies the act envisages 3- tire quasi judicial system at
various levels which is known as district forum state commission and national commission.
Establishment: (sec 9)
sec 9 :- sec 9 the consumer protection act deals with the establishments of there kinds of
redressal agencies at district state and central levels. They are under sec 9 (d) District Forum
under sec 9 (b) state commission and under sec 9 (c) national commission.
Establishment of district forum (Sec 9 (a)):

sec 9(a) of the a at deals with the establishment of district forum. the state government has the
power to establish a consumer dispute redressal forum however is the state government feels it
necessary. it can establish more than one district forum in a district. As per sec 9(a) of the
original enactment 1996 the state government has the power to establish district forum only
with the approval of the central government. but according to Sec 9 (a) Amendment act, 1983
the state government has the power to establish district forum without the approval of the
central government.
Composition (Sec 10):

Sec 10 of the act deals with the composition of the District Forum. It Consists of a president
and two other members, who may be appointed by the state Government on the
recommendation of the selection committee.
President (Sec 10 (a)):

According to Sec10 (a)) the state Government concerned has the order to appoint person
who is, who has been or who is qualified to be a restrict may be appointed as the president to
the person.
Sec 13(1) (d):- According to this section sec 13 (1) (d) is there is any need to conduct test or
analysis the District Forum may require the complainant to deposit certain amount, for payng
charges to the appropriate laboratory for conducting necessary tests or analysis.
Sec 13(1) (e):- Under Sec 13(1)(e) the District Forum has the power to remit the amount, which
it has to pay to appropriate laboratory for conducting tests or analysis. after receiving the copy

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of report from the laboratory it has to sent one copy to the opposite party.
Sec 13 (1) (f): Under this section Sec 13 (1)(f) is the partner differs with the, correctness of the
submitted report then the concerned party can make objections in written.
Sec 13 (1) (q): under this section 13 (1) (g), the District Forum after giving reasonable
opportunity of being heard to both the petitioner and opposite party with regards to the
correctness of the report can decide the debute basing upon that report.
Sec 13 (2) Section 13 (2) says that if the complaint which was made is relevant to services then
the forum they apply another procedure.
Sec 13(3) If the District Forum is fulfilled the procedure which is laid down under Section 13 (1)
to (2), then such thing can not be questioned in any court on the ground that the principles on
natural justice have not been followed . It is so because sec 13 (1) to (2) covers the provisions of
principles of natural justice.
Sec 13 (4) This sec 13 (4) comovers the District Forum with some power which are vested to a
civil court under the code of civil procedure, 1908 while trying suit a respect of the following
matters such as
a) the summoning and enforcing attendance of any defendant or witness and gaining the
witness on other.
b) the di vovery or production of any document or other national object producible evidence.
c) the reception or evidence on officatvits
d) the re aisition of report of the concerned analysis or test from the appropriate libaarotry or
fromother allroles nt source.
e) issuing
FINDINGS OF THE DISTRICT FORUM

Sec 13 of the consumer protection act provides procedure to be followed by the Districtforum
while conducting the proceedings. After conducting such proceedings the District Forum can
provide the following appropriate remedies to the parties concerned.
Under Sec 14 the District Forum has the power to issue following directions.
Sec 14 (a) The District Forum is the power of issuing direction to remove the defect pointed out
by the appropriate laboratory.
Sec 14 (b) it has the power to direct the concerned party to replace the goods with the new

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goods of similar description, which are free from similar defects.
Sec 14 (c) it has the power to order for returning the price or the charges paid by the
complaint.
Sec 14 (d) A direction may be issued to pay such amount as compensation to the customer for
any loss or injury suffered by the consumer due to negligence of the opposite party.
Sec 14(e) It can direct the party concerned to remove defects or defeiciencies in the services
which were in question.
Sec 14 (f) it has the power to discontinue the unfair trade practice or restrictive trade practice
or not to repeat the same gain.
Sec 14 (g) It has the power to direct not to offer the hazardous goods for sale.
Sec 14 (h) It has power to issue direction to withdraw hazardous goods from being offered for
sale.
Sec 14 (I) It can direct to provide for adequate costs to parties.
The District Forum can Provides any of the above reliefs to the parties concerned only when
it satisfies the allegation is genuine and also when the alleged defects or defeciency is proved.
Appeal Sec 15
If the party concerned dissatisfies with the district of the District Forum car prefer an appeal
before the State commission within a period of 30 days from the date on which he received the
order copy from the District Forum.
Conclusion: Various provisions of the consumer protection act which have been discussed above
says that the basis purpose of establishment and composition of District Forum is to provide
appropriate remedies to the affected consumers. Even though there were so many provisions
under various enactments they are not that such effective as of consumers protection Act
provisions. This is why because the scope of application of those provisions are very nonout. But
the provisions of the consumer protection act, which provides three aies Redressel agencies,
among which the District Forum is one of the agencies is meant to provide speedy remedies with
less expenditure to the consumers concerned.
17. a) Explain the role of state commission as one of the Redressel Agencies under the
consumer protection Act?
b) What are the power and functions of state commission under the provisions C.F.A Act, 1986?
Q (1) Explain the composition and jurisdiction of state Commission?

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Ans: Sec 15 of the consumer protection Act, 1986 deals with the composition of State
Commission. The State commission is required to be established in each state Government by
notification to be published in the official gazette.
According to Sec 16 (1) there shall be a state Commission in each state according to 16 (1) (a)
the appointment of the president of the State commission should be made by the state
Government, after consultation with the chief Justice of the High Court.
Each State Commission consists of one president and two other members. The president
should be a person who is has been a judge of a High Court. Two members of standing. They
must possess adequate knowledge or experience in dealing with problems related to
economics, , commerece, accountancy, industry, public affairs or administration. and among
two members atleast one of the members should be a women.
TERMS A.D.
According to sec 16 (2) the salary and other allowances payable to shall be such as may be
prescribed by the state Government.
Term of Office 16 (2) (1)

According to this section every member of the state commission shall held office for a term of 5
years or upto the age of 67 years, which is earlier and shall not be eligible for reappointment.
Removal of the President or member 16 (2) (3) The state Government may remove the
president or member of the state Commission on the following grounds.
a) has been Adjudged an insolvent, or
b)has been concited of an offence
c) has become physically or martially incapable of acting as such member; or
d) has acquired such financial or other interest as is likely to effect his functions; or
e) has so acqused his position.
However, the president or a member shall not be removed on the grounds specified in
clauses (d) and (e), except on an injury eld by the state government.
Jurisdiction of the State commission

SEC 17
Under sec 17 the state commission consists with three types of jurisdiction.
Sec 17 (1) Jurisdiction of the state Commission.

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17 (2) Original Jurisdiction
17 (3) Appellate Jurisdiction
17 (4) Revisional Jurisdiction
Sec 17 (1) says that the State commission has been vested with three types of jurisdiction namely
original, appellate and revisional jurisdiction.
Sec 17 (2) Original Jurisdiction
The original jurisdiction of State Commission under 17 (2) can be classified as pecuniary, teritorial
and subject matter jurisdiction.
1) Pecuniary
Where the value of goods or services and compensation claimed is more than find lakhs and less
than 20 lakhs can be filed in the State Commission.
2) Teritorial Jurisdiction :-
The teritorial jurisdiction is conferred with the office of the opposite party is situated.
3) Subject Matter Jurisdiction: The State commission shal have the Jurisdiction to entertain
complaints in respect of goods and service only . the state commission can not determine the
question of validity pertaining to say law.
17(3) Appellate Jurisdiction was provided and under Sec 15 aggricured party may perfrom on appeal
against the order of a District Forum. Such appeal from District to State commission shall be filed
within 30 days. If appeal is filed after 30 days the State commission does not entertain. But if
sufficient cause is shown for such delay then the State commission will accent such appeals even
after the period prescribed.
17(4) Revisonal Jurisdiction :-

The State Commission has the jurisdiction to call for records and pass appropriate orders in any
consumer dispute which is pending before or has been decided by any District Forum within the
state on the following grounds.
1) when the District Forum exercised the Jurisdiction not rested in it by law; or
2) Where the District Forum has failed to exercised a jurisdiction rested in it: or
3) Where it has acted in excess of its jurisdiction illegally or with material irregularity.

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Earlier it has been noticed that, some agreed parties are frequently approaching the High Court
against the Orders of the District Forum on the ground of jurisdictional issues. In orolu to avoid
such situation on order was passed according to which an order passed by the District Forum can be
challenged in appeal only order Sec 15. of the Act that too before the State Commission only.
(2) What is the procedure following by the State commission and what are its additional powers?
There is no any laid down procedure to the state commission. Put sec 18 of the sap that the
procedure that was laid down to District Forum under Secs 12, 13and 14 are applicable to State
commission.
The following rule framed under the A. P. State consumer protection rules, 1987 explains the
procedure to be followed by the State commission of A.P
Flance of sitting and other matters relating State commission
1) office of the state commission shall be located at the capital of the State.
2) The working and the office house of the State commission shall be the came as that of the state
Govt.
3) The official seal and of the State commission shall be such oas the state government may
specify.
4) Sitting of the State commissioner, as and when necessary shall be convened by the President.
5) No proceeding of the state commission is invalid on the ground of absence of any of its members
or vacancy among its members.
6) The State commission shall appoint staff as may be necessary to assist the commission in its
work.
7) When the opposite party admits the allegation made by the complainant the commission shall
decide the matter on the basis of merit of the case and document present before it.
8) State commission fixes date for hearing of the parties it shall be obligatory on the complaint on
the complainant and opposite party or his authorised agent to appear before state commission. If
they failed to appear before state commission. If they failed to appear the commission in its
discretion either dismiss the complaint for default or decide it on merits.
9) The complaint should be decided within 90 days from the date of notice received from the
opposite party.

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10) The orders of the State Commission shall be signed and dated by the members of the
commission and shall be communicated to the ties free of charge.
PROCEDURE FOR HEARING APPEAL
An order passed by the District from can be challenged is appeal in the state commission for that
separate procedure is laid down.
1) Hemorandum shall be presented by the or by his authorised agent to the state commission in
person or sent by registered cost addressed to the commission.
2) Every memorandum shall be in hand writing preferably typed, under distinct heads, the grounds
of appeal without any argument or narrative and such ground shall be numbered consecutively.
3) each memorandum shall be accompained by the certified copy of the order of the District Forum
along with documents as may be required to support ground of objection mentioned in the
memorandum.
4) when the memorandum is presented after the expiry of period of limitation memorandum shall
be accompained by an application supported by an affidovit setting forth that he was sufficient cause
for not prefering the appeal within the period of limitation.
5) The appellant shall submit four copies of the memorandum to the state commission for official
purposes.
6) It shall be obligatory for the parties or their authorised agents to appear before the state
commission If they failed to appear before the state commission If they failed to anear the
commission in its discretion either dismiss the appeal or decide it on merits of the case.
7) Order of the state Commission on appeal shall be signed and dated by the members of the state
commission and shall be communicated to the parties on free of charge.
ADDITIONAL FORUMS
Rule 10 of consume protection Rules, 1987 ormed by the central Govt, cofers certain additional
powers on the District,State and National Commission.
These powers includes the power to order for production of any documents, books, accounts and
commodities before the forum. It also includes the order funishing of any necessary information, to
order any officer to enter and search any premises etc.
18. A) How National commission exercises supervision jurisdiction over the state and district
forums?
B) Explain the composition establishment, jurisdiction, powers and functions of the national

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commissions?
NATIONAL COMMISSION
The three clauses which are provided under sec 9 of the consumer protection Act deals with
establishments of redressels agencies district Forum. State commission as Na tional commission.
Under sec 9 (c) the Central Government has the power to establish National Commission. The
National Commission under sec 9(c) has been given the highest status among the three redressal
agencies.
SEC 9 (c):
Sec 9 (c) says that the national commisssion which is the highest consumer forum can be
established by the central govt by issuing a notification.
composition of the National Commission sec 20:
Sec 20 of the Consumer Protection act deals with the provisions with regards to the
composition of the national commission.
SEC 20 (1) : Sec 20 (1) (a) the person who is or has been a Judge of the Supreme Court to be
appointed by the central Govt as the President of the National Commission.
SEC 20 (1) (b) : Sec 20 (1) (b) says that the national commission shall consists of four other members,
who have ability, intergrity, adequate knowledge or experience or have shown capacity in dealing
with problems relating to exercises, law, commerce, accountancy, public affairs etc. But among
these four members one shall be a women.
The appointment of the President and four members to the National

Commission shall be made by the central Government only after conselling the cheif Justice of India
and on the recommendation of the selection committee.
SELECTION COMMITTEES:- It has discussed above that the appointment of the president and
members can be made by the central government after taking the recommendations of the selection
committee. such selction committee shall consists of the following persons as its president and
Members.
CHAIRMAN OF THE SELCTION| A person who is a judge of the Supreme court of india may be
COMMITTEE | nominated by the chief Justice of India as the chairman of
the
| Selection committee.
IIBNEER OF THE SOLETION | The secretary in the Department of Legal affairs in the
COMMITTEE | government of India may be a nominated as one of the

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| two members.
ANOTHER MEMBER OF SELE- | S ecreatary of the Department dealing with consumer

affairs in
CTION COMMITTEE | the Government of India may be nominated as another
member.
So, the Selection Committee which has the power to recommend the President and
members to national commissions may consists of a Chairman and tw members. on the
recomendation of this selection committee. in consulation with chief Justice of and four
members to the national Commission.
SEC 20 (2) sec 20 (2) of the Act deals with the salary honorarium and other allowance
payable to the President and Members . The provision under this section says that the salary
and other allowances may be such as prescribed by the central government.
SEC 20 (3) According to sec 20 (3) the office of the president as well as the Members in 5
years or upto 70 years whichever is earlier and shall not be eligible for reappointment.
REMOVAL OF THE PRESIDENT AND MEMBERS
According to section 20 (3) generally the priesdent and office for a period of 5 years or
until they attain 70 years of age whichever comes earlier. But under Rule 13 of the consumer
Protection Rules
1987 the central Government has the power to remove the President or any member prior
to completion of their respective terms on the following grounds.
1. If he has been adjudged as in insolvent.
2. If he has been convicted of an offence which in the opinion of the central Governance,
involves moral turpicude.
3. If he has been physically or mentally in capable of acting as President or one member.
4. If he has acquired such financial or other interest as is likely to affect his functions is the
president or a member.
5. If he has so abused this position is to refer his continuation in office to public interest.
It was clear that under rule 13 of the consumer protection Rules 1987 the central
Government can remove the President and any member on any off the above mentioned
Grounds. But the important thing to observe is such removal by the central Government can

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be made only when the facts are proved through conducting enquiry.
JURISDICTION OF THE NATIONAL COMMISSION

(SEC 21)
sec 21 of the consumer protection act ., subject to other provisions of this act, deals with
the jurisdiction of the National Commission.
SEC 21 (a) (1):

Sec 21 (a) (1) of the act says that the complaints in which the value of goods or services
and compensation claimed is more than 20 lakhs then such complaint can be entertained by
the National Commission.
SEC 21 (a) (II):

under sec 21 (a) (II) the party who has been agrieved by the decision of state
commission can file an appeal before the National Commission
SEC 21 (b):
Under sec 21 (b) the National Commission has the jurisdiction to call for the
records and pass appropriate orders with regards to any consumer dispute which is pending
or has been decided by the state Commission if the National Commission feels that the State
Commission has abused, misused or exceeded its Jurisdiction while is vested to it.
Basing upon the Provisions when are provided under section 21 and its clauses
the jurisdiction of the National Commission can be classified as follows:-
sec . 21 (a) (i) A : Original Jurisdiction.

Sec. 21 (a) (ii) B : Appellet Jurisdiction.
Sec. 21 (b) C: Rivisional Jurisdiction.
A. ORIGINAL JURISDICTION : Sec 21 (a) (i)

The original jurisdiction of the National Commission can be further classified as follows:-
a. Pecuniary Jurisdiction: The national Commissioner under its Pecuniary Jurisdiction can
encertain the matters where the whether the value of goods or services or compensation of
any claimed is more than 20 lakhs.
b . Territorial Jurisdiction: As per the territorial jurisdiction the disputes which a rise within
the territory of india other than jammu & kashmir can be entertained by the national
commission.
c. Subject Matter Jurisdiction: Under subject matter jurisdiction it has been provided that
only the complaints in respect of goods and services can be entertained by the national
Commission. This is so because the basis purpose of the consmer protection act is to provide
speedier and less expensive remedies to the affected consumers with regards to their
consumer disputes. If any loss is caused to the person due to other than a consumer dispute,

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he can file a suit in the ordinary court but not in the consumer forum.
B. APPELLET JURISDICTION : SEC 21 (a) (ii)

Under sec 21 (a) (ii) of theact it was provided that the National commission has the
power to entertain appeals against the orders of the state commission but not against the
orders of District forum. Such an appeal against the orders of State Commission has to be
filled within a period of 30 days from the date on which the aggreved parts received the
order copy fro the State Commission.
C. REVISIONAL JURISDICTION : SEC 21 (b)
Sec 21 (b) which provides revisional jurisdiction to the National Commission says that it
has the power to recall for the records and by which pass the order with regards to any
consumer dispute which is pending or which has been decided by the state commission such
recall by the National Commission can be made on the following grounds.
GROUNDS FOR REVISION BY THE NATIONAL COMMISSION:

1. If the State Commission has exercised jurisdiction which was not vested to it.
2. If the state commission failed to exercise jurisdiction which is vested to it.
3. If there is illegal or irregular exercise of power by the State commission.
POWERS & PROCEDURE APPLICATIONS TO THE NATIONAL COMMISSION

(SEC 22)
sec 22 of the act provides certain powers as well as commission which have to be followed
by the National Commission at the time of disposing the complaints and while carrying on
the proceedings.
SEC 22 (a):
sec 22 (a) of the acc says that for the purpose of disposal of cases while carrying
on the proceedings the national commission can exercise the powers of a civil court. The
powers of a civil court (under procedure code 1908) have been prescribed under clauses
(4), (5) and (6) of sec 13. They are as follows:-
1 . To summon any dependent or witness.

2. To examine them on bath.
3. to order disovery and production of any document or other material object producible in
evidence.
4. To receive evidence and affidavit.
5. To reguisition the report of analysis or test from appropriate laboratory.
6. And to issue any commission for examination of witness etc.
PARTICULARS OF THE COMPLAINT TO THE NATIONAL COMMISSION

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A complaint which is made to the National Commission by the complaint shall contain
the following particulars such as name and description of the complaint and opposite party.
the facts relating to complaint , and the relief which the complaint claims or intended to.
PROCEDURE TO BE FOLLOWED BY THE NATIONAL COMMISSION
after receiving the complaint from the complaint the National Commission while disposal of
case may follow the following procedure which is laid in sub sections (1) and (2) of sec 13
which si provided fro district forum (for the procedure of National Commission see page
no. ) The same procedure of District Forum is applicable to National Commission.
RELIEFS GRANTED BY THE NATIONAL COMMISSION

(SEC 22 (B))
Sec 22 (b) empower the National commission to grant appropriate reliefs to the concerned
parties those reliefs which have been provided under sub- section (1) clauses (a) to (1) of
Sec 14 of the act. These reliefs are equally applicable to District forum, State commission
and National Commission some of those reliefs are as follows:-
to remove the defect which wqs pointed out by the propriate laboratory from the goods
in question, to replace the goods, to return the price to pay compensation to discontinue
unfair trade practices etc.
APPEAL FORH THE NATIONAL COMMISSION (SEC 23)
Under Sec 23 it has be provided that any person who has been aggrieved by the order of
the National Commission can make an appeal to the supreme court of India within a period
of thirty days only the disputer which have been filed and disposed under the original
jurisdiction of the National Commission can be entertained as appeals before the Supreme
court
For example if the National Commission has entertained and decided an appeal from the
state Commission then such decision further cannot be challenged as an appeal before the
Supreme Court.
FINALLY OF ORDERS (SEC 24)

finality of orders means if no appeal has been made against the orders of a District Forum,
State commission or the national Commission within a period of 30 days, then such an order
will become final. Further no appeal in that regard may be entertained by any forum.
ADMINISRATIVE CONTROL (SEC 24 (B))
The national Commission under sec 24 (b) has the power to exercise administrative control

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over the state Commission and District Forum . In the process of exercising such control the
Following powers have been vested to the National Commission.
1. Calling for periodical reports regarding the institution disposal and pending of cases.
2. Issuing Instructions regarding the adoption of unifrom procedure in hearing the matter by
all state commissios and District Forums.
3. Observing the functioning of the state Commission and District Forums to ensure that the
objects and purposes of the act are best accomplished or served.
CONCLUSION
The basis purpose of providing three redressel agencies but the act is to provide
appropriate to the affected consumer. Among the three redressel agencies, the National
Commissions has been given the highest forum. Being the highest forum it not only disposes
the cases but also exercises some powers such as revisioning and administartive control
over the state commission and District Forum. The planeed construction of provisions
procedure to be followed by the national Commission as well as State and District Forums
clearly shows that the purpose of the consumer act has been accomplishing.
SHORT NOTES
Trespes as initic
Generally the were tresspass is used to refer some disturbance or an
intentional direct interference with the land which is the possession of the plaintiff. But
there are some circumstances in which an at which does not amounts to tresspass intially
my to tresspass subsequently. for example if a reasin under the authority of law
enters the premises of the plaintiff to cut accordingly it does not amounts to tresspass. But if
thes same person after entering the permises acts against to the autority of some law then
commission such act without authority amounts to “trespass abinitio.
Six carpenter’s case , 1610

In this case six carpenters entered into a ar and ordered some wine and
bread. After having the same they refused to pay for that. The House of Lords in this case
held that they were not liable for trespass because were non-payment of rice for sankes was
wrongful act.
2. Deterue
The term ‘datenue’ refers detention. Detention means detaining the goods or
shattels (any of movable or immovable property) of another person without any lawful
justification . But not the tort detenue has been published as an independent tort in england
by pessing The Torts(Interference with Goods) Act, 1977 . After such abolition, the same tort
has been made is port of the tort which is known as ‘ Conversion’ . Likewise the tort

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conversion will now some under the little or “wrongul inteference to goods’.
In an action for detention there must be a demand for delivery of detained goods by the
plaintiff and such demand must be refused by the dependent.
Under Sec 13 of the Torts (Interference with goods) Act, 1977 the plaintiff whose goods
have been set into wrongfully can avaail the following remedies.
a) To deliver the goods or get for incdental harm.
b) To get damages equal to the value of the goods detained.
c) a part from getting damages equal to the value of the goods detained he can claim
damages as compensation.
d) To get inerim relief.
Indian Law:- In India all the above kinds of remedies are available to the aggrieved party under
the provisions of Indian specific Relief Act, 1963.
Extra Judicial Remedy
A wrongful or unlawful out which was committed by a person caused violation of legal
right of another person it amounts to tort. In such circumstances the aggrieved party can file
a suit for damages in the court of law or he can avail remedy out side the court of law . So
depending upon the nature of awarding damages remedies can be classified as Judicial and
Extra Judicial Remedy.
Judicial Remedy: Judicial Remedy means the remedy which is available to the aggrived person in
the court of law for the violation of his legal right.
Extra Judicial Remedy: Extra Judicial Remedy means the remedy which is available to the
aggrieved perrson out side the Court of Law. Such kind of extra Judicial remedy can be
availed by a person out of his own strength by way of self help. In such damages in the Court
he can protect his violated legal right by using reasonable force which is subject to certain
restrictions. some of the extra judicial remedies are as follows.
3. Nervous Shock
Nervous shock is a kind of mental pain or fear which causes through eye or ear by one
person to another person knowingly without having any physical construct. According to old
law no action could be brought for such mere mental pain or fear which was due to mental
sock. But if such mental shock causes disease or some pain in the body, then the action
could be brought and the court award damages for the some.
But according to modern law or can be brought for damages for mental shock even
though it is sustained through the medicem of eye or the ear withere physical contract.
WILKINSON VS DOULTCN 1897

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The defendant in this case in order to tease the plaintiff played a practical joke, by giving a
false news that her husband was injured in an accident and was admitted into a hospital,
and that she should go immediately in a text with two pillars and bring him home.
After hearing such sad news about her husband the plaintiff suffred a nervos shock and
she becaome ill. As a result of such illness her hair become white and he health had gone
down. The house of Lord’s held that the defendant liable for the tort nervous shock and
hence he had to pay damages to the plaintiff.
a) Self- help b) Re- Entry on land 3) Expulsion of trespasser etc.
a) Self – help:- Every person is entitled to use reasonable force to protect himself against
the wrongful out of another. But such right of using force self-help must be proportinate to
the damage to be prevented.
b) Re-entry on land:- A person who has been dispossessd of his land wrongfully can re-enter
his land to take possessior of that land. In this circumstance he can use necessary force to re-
enter his land.
c) Expulsion of trespasser:
Every person has a right to a trespasser from his land by using proportionate or
reasonable force. But before using such reasonable force, the person has ask the trespasser,
so that the trespasser can utilize this opportunity and leave the lend.
So the remedies which can be availed by the aggrieved person custice the court of law
are known as extra judicial remedies.
(5) Public Nuisance

Nuisance is a linked to tort in which injury was caused to the right of a person
who is in possession of property. Depending upon the nature of the act nuisance it can be
classified as public nuisance and private nuisance.
Private Nuisance: Private Nuisance is an injury which caused due to interference to the
private rights of a person and to the comfortable occupation of his property.
Public Nuisance: Public Nuisance is an art which causes injury or which effects the rights of
the public at large. Such acts under public nuisance may cause serious interference with the
health, safety, comfort, or convenience. of the general public
INDIAN PENAL CODE (SEC 268)
Se 268 of I.P.C defines the term public nuisance as “ an act of illegal commisssion which causes any
common nuisance, injury damage or annoyace to persons who may have occassin to use any

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public right”
The definition under sc 268 says that nuisance is an act, which affects the rights at large.
under the act of public nuisance, it is not necssary to prove that is sufficient to show that a
representative section of the class has been affected.
6) Assault and Battery:-
Generally one of the basic purpose of law is to provide security to person. There are so
many provisions various enactments which provide security and protection to person . for
example provision under law of crimes and law of Torts provides to the person against
injuries. If any Injury is caused to the person then the court can award damages to the
aggrieved person. Some of the acts which causes injury to the person under law of torts can
be classified as Assault and battery.
ASSAULT:
of force against the body of other which causes reasonable opprehension to him. It means
single attempt to cause any physical or bodily harm is sufficient to constitute the tort assault.
to use forum and capacity to we such force.
Example: An attempt to strike a person with the stick.
Battery: According to salomond “ Battery is the application of force to the person of another
without any lawful justification.
battery wears are accomplished assault. It means the is the to cause bodily
7) Volenti non fit injuria

Generally a wrongful or an unlawful act causes injury to the legal right of a person
is known as ‘tort’. but the similar acts which have been under some special circumstances
does not amounts to torts. Those special circumstances are considered as defences against
the caution for tort amount which volenti non fit injuria is one of the defences.
VOLENTI FIT INJURY

The meaning of the above principle says that the harm suffered volenti with the knowledge
and concent of the party is not actionable as tort. It means what is consented to it not at all
an onjury. The consent that may be given under this principle can be classified as express
consent and implied consent.

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Express consent: According to salomond no man can enforce a right of a person which he
has volentarily wavied or abinded such defence can be taken when the act is along with the
consent of the party.
Example: If enters the house of an the invitation of can not take action under tort of
tresspass against a because he had entered the house with B’s consent.
PRESCRIBED CASES
ASBHY VS WHITE 1703
The case Asbhy vs White can be studied under the chapter the General conditions of
liability In tort and specifically under the topic legal damage. The concept under the topic
legal damages can be studied under the two maxims which are as follows:
A) DAMNUM SINE INJURIA

MEANING:
a) The term Damnum means damage in the form of money, comfort and health
b) The term Injuria means violation of legal rights
c) And the term Sine means without.
Hence the maxim damnum sine injuria gives the meaning that the damage which is caused in the
form of money, comfort, and health, without violating the legal right of a person. The
meaning under the above maxim says that a person will not be held liable for causing
damage without violating the legal rights of others so even though some loss was caused,
the affected person can not file any suit in that regard.
B) INJURIA SINE DAMNUM

MEANING:
The term Injuria means violation of legal rights the term sine means without
and the term Damnum means damages in the form of money. comfort and health.
The implied meaning under this maxim says that the violation of legal rights of others
without causing any manage in the form of money, comfort, and health. the concept under
this maxim says that whether a person has suffered with any kind of damage or not is
immeterial if a persons legal right violated that it self is sufficient to held liable him liable in
fort.
ASAHY Vs WHITE is a leading case which is decided on the basis of the second macim “
INJURIA SINE DAMNUM”. According to the facts of the case the plaintiff was aqualified
voter in Parliamentary elections and the defendant was a returning officers in the poling
Booth hen the plaintiff who was a qualified voter came for giving his vote, the returning
officers wrongfully refused fro taking the plaintiff’s vote. Inspite of this the candidate to
whome the plainiff intended to give his filled the suit for damages against the defendant.
The contention of the defendant is any way the candidate to whom the plaintiff intended to
give his vote won the election and hence no harm or loss was caused to the plaintiff. But the

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court of lae rejected the contention of the dfendant refused to take this vote of the plaintiff
it amounts to wrongful act which amounts tort and which violated his legal right. So the
Court while deciding this case applied the maxim injuria sine damnum and held that een
though there is no loss to the plaintiff, the defendant is liable to pay damages because he
violated the legal right of the plaintiff.
2) BHAGAWAN DAS VS MOHD ARIF 1987.
According to the facts of the case the plaintiff Mohd. Arif was working as a Technician in
the Merchant Navy. At that time he was drawing Rs 645/- Salary, plis substience allowances
of Rs. 39/- per month an allowance of Rs. 192/- per month. On 3o th june 1978 the
defendant Bhagawandas while driving his vehicle caused an accident by which the plaintiff
Mohd. Ariff’s right leg below the knee was severly injured and led to permanent
disableness.
BHAGAWAN DAS VS MOAMMED ARJF 1987
The above case is one which can be studied under the chapter “Remedies”. remedy means
redressel It means Whenever a persons legal right is violated remedy can be provided by
awarding compensation or damages. Depending upon the nature and circumstance and
damages that ease was caused by such violation the remedies which are available can be
classified as judicial remedies, extra judicial remedies . And while providing such remedy in
the form of damages or compensation they can be classified as compensatory damaged,
aggravated damages , exemplary damages etc. ANd at the time if determining or measuring
the damages, contextually various methods such as interest method, lump sim method, the
multiplier method will be taken into consideration by teh court of law. This multiplier
method is propounded by Lord Diplock while deciding the Matiettt vs Mc Mongale in the
year 1970. Inindia this “Diplock Formula” has been applied by the court while deciding the
following case.
BHAGAWAN DAS VS MOHD ARIF 1987

According to the facts of the case the plaintiff Mohd. Arif was working as a Technician in
the Merchant Navy. At that time he was drawing Rs 645/- Salary, plis substience allowances
of Rs. 39/- per month an allowance of Rs. 192/- per month. On 3o th june 1978 the
defendant Bhagawandas while driving his vehicle caused an accident by which the plaintiff
Mohd. Ariff’s right leg below the knee was severly injured and led to permanent
disableness.
so the plaintiff filed a suit before the Tribunal under sec 110-D of the Motor Vehicles Act
Under this circumstances the Tribunal awarded Rs.97,000/- as compenesation to the
plaintiff. But the defendant filed an appeal before the A.P. High court on the ground that the
compensation awarded by the tribunal to the plaintiff is excess and were not calculated
correctly. Hence the Defendant prayed for reduction in the awarded compensation. But the
High Court rejected the contention of the appellant and by applying the “Diplock Formula”
the court gave the judgement in favour of the respondent and dismissed the appeal. The
High court in this case awarded is 1.07.412 as compensation to the respondent.

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3) DONOGHUE VS STEVENSON 1932
The above case can be studied in the context of legal duty to take care which is one of the
essential elements for constituting “Nagligence.” The implied meaning for under the
definition for the term negligence emphosier two essential elements which are as follows:
A) A Legal duty to take care.
B) Breach of the said duty
According to the provisions for negligance under law of Torts, There can not be negligance
under Law of torts, there can not be negligance unless there is a legal duty to take care. Such
kind of legal duty to take care can be determined on the basis of the facts and circumstances
in each case. hence while deciding the above said case.
Lord At kin said That “ The duty to take care arises by reason of relationship in which one
person stands to authority. Such relationship may arise in variety of circumstances which can
not be counted in detail. This is also not possible because from time to time the Courts
recognise new duties which they consider just”
On the basis of the concept of relationship for negilgance.

Lord Mc Millon said that
“There is no end to categories of negligance”
Hence in view of Lord Mc Millon the concept of legal duties along with the changes in the
social circumstances and standards in society.
By keeping in view the existed concept for legal duty to take care a general principle has
been laid down by
LORD ATKN which is as follows:

“you must take reasonable care to avoid acts or omission which you can reasonably
foresee would be likely to injure your neighbours”
According to the above rule LORD ATKIN INTENDED TO says that

“you must lover your neighbours becomes in law you must not injure your neighbour”.
The above view of Atkin upon neighbour leads to raise a question that who can be
considered as a neighbour according law. To clear the confusion again the definition for the
term neighbour in law has been given by Lord Atkin, which is as follows:
“Neighbours are persons who are closely and directly affected by any act that I ought
reasonably to have them in contemplation as being so affected , when I am directing my
mind to the acts or omissions which are called in questions”.

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All the above definitions and views , upon a legal duty to take care under negligance have
been stated by Lords Alkin and Mc Million, while deciding the following case.
DONOGHUE VS STEVENSON IN THE YEAR 1932
According to the facts of the case the plaintiff and had purchased a bottle of ginger beer
from a retailer shop for he girl friend . The ginger beer bottle was made of dark opaque glass
and was sealed with a metal cap. The plaintiff opened the cap and powered some contests
of beer into tumbler (glass) and offered her girl friend who drunk some of the contents.
When the remaining beer was powered into the glass a snail.
In the same manner in law of Torts also the above case can be studied under the topic
“Deceit”. under law of torts the term Deciet is defined as
“A false representation made by the defendant knowingly or without belief in its truth
or reaklessly careless whether it be true or false with the intention that plaintiff the plaintiff
should act in reliance upon the which causes damage to the plaintiff in consequence of such
reliance upon it amounts to deciet
The two definitions for the terms “fraud” under contract Act and “deceit” under law of
Torts lays down the following elements.
a) There must be a representation which is not true.
b) Such representation must have relevancy material facts of subject matter
c) The person who made such false representation must have knowledge of false hood.
d) Such representation must have been made with the object of inducing the other party to
act upon it and by which will enter into contract.
e) the other party must have acted upon such representation.
f) The other party must have sustained damage or injury.
4) DERRY VS PEEK
This is a landmark case in which the Court of law has laiddown certain principles to
determine a partiicular as Fraced or Deceit. According to the facts of the issued the shares,
which have been bought by many shareholders. But later unfortunately the board of Trade
has not given its consent to run tramway and to use steem. Due to that the company was
wound up. Then the share holder filed a suit against the company directors under fraud for
the loss caused to them by buying the shares on the faith of their false representation which
had been in the bottle floated out into the As a result, she suffered from seriousillness
and hence filed as suit for compnesation against the manufacturer.

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The manufacture who is the defendant, to defedent himself described the retailer as
the first customer and the the consumer as the second customer. In this case the defendant
contended that certainly they were owe a legal duty to take care but such legal duty may be
extend upyo yhr trysilrt sd yhrit gitdy.
upto the retailer as their first customer but not the consumer as the defendant if any loss or
injury was caused to the retailer they are liable but if any loss or injury was caused to the
consumer the they are not liable.
But the contention of the defendant was rejected by the court of Law and held that
whether the defendant owes legal duty towards the retailor or the consumer can be
determined on the basis of reasonable forsence bility of harm and injury which is likely to
be caused circumstances in the case the manufacturer could imagine or eapect the harm
which would cause to the consumer Hence the court of Law held that the defendant is liable
to pay compensation to the plaintiff.
DERRY VS PEEK
The above case can be studied under two subje one is in “LAW OF TORTS” under the
chapter “Interference with contractual Relations” The term fraud is defined under section 17
of the contract the meaning the definition says that intentional withful
misrepresentation with regards matrerial with the purpose of deceiving the other by
which the other party was induced or infulenced to enter into contract amounts to fraud.
But the court of law held that the Directors of the company were not liable.
The House of Lords while deciding the case laydown the following gudelines regards to
fraud.
1) Knowingly
2) without belief in its truth
3) Recklessly and carelessly
whether it to be true or false
According to the facts of the case, the defendants company was laready engaged in
trasnportation activity passing an act authorised such kind of companies to construct
tramways and also to use steam or Mechanical motive-power for transportation on such
tramways. By keeping the provisions of the act passed by the Government the company
issued the prospectus in which it offered shares the company in its prospectous contended
that by the special Act of parliament the company has a right to use staem or mechanical
motive –power instead of houses. At the same time the provisions under the Act also says
that such right of the company to use steam for the purpose of transportation is subject to
the consent of the Board of trade.
In such circumstance the company with a belief that the Board wil give its consent.
In this case the House of Lords come to the conclusion that even though the statement mad

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e by the Directors of the company is inaccurate in some respects it was fair, honest and
bonofide. Hence there is no action of deceit or fraud.
5) GAYA PRASAD VS BHARAT SINGH, 1908
The above case can be studied under chapter “Malicious procecution”
meaning:
Malicious: Mala fide or bed faith, or bad intention.
Proceduction: Compelling a person to be prosecuted without any reasonable or probable cause.
Hence in their context, the words ‘Malicious proceution” gives the meaning that filling a
criminal against the other person without any reasaonable pr probable cause with the bad
intention of causing damage or injury to the other person.
Defnition: The definition under law of Torts says that malicious proceution is a tort
maliciously and without reasonable and probable cause to intiate against another judicial
criminal proceedings which terminate in favour of that other and which results in damage to
his reputation personal freedom or prperty.
In action for tort of malicious procecution the plaintiff has to prove the following
essential elements:-
1) that the person was procecuted by the defendant.

2) That the defendant acted without any reasonable cause.
3) That the defendant was actuated with malice.
4) That the proceeding ended in favour of the plaintiff he has acquitted in the criminal case.
5) That the plaintiff suffered some damages.
GAYA PRASAD VS BHARAT SINGH 1908
According to the fats of the case two persons have given a false complaint against another
person before the police authority. The police by taking that complaint into consideration
arrested the person. Late that arrested perso has been released on bail. In the mean time
criminal proceedings have been carried on by the court of law . Finally the court of law by
passing the order in favour of the defendant, acquitted him.
The defendant after his acquitted had filed a suit against the two persons on the ground
that those two persons have given false complaint against hi which amounts to the tort
known as “Malicious Procecution”. then the court of held that these two person are liable
for malicious procecution because they have made a false complaint. Hence these two

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persons were directed pay compensation to the affected person.
Later on the two persons have made appeal before the judicial commissionar of cudh. Then the
Judicial commission by reversing the decision in the above court. the reason is that the
dfendants contended that the police have compelled to them to give such falso complaint of
criminal case, so that only thy have doen like that. Hence the Judicial Commissioner of oudh
dismissed the case in favour of the two defendants.
Then the person against whome such false allegation or complaint was made filed as appeal
before the Privy council The privy council reserved the decision of the judicial commissioner
of oudh and confirmed the earlier decision. While deciding the case, the Privy council held
that at the time of making Person liable for the out of malicious procecution. The conduct of
the person making such false complaint (before and after) has to be taken into
consideration. In this case the conduct of the persons who made such false complaint has
been proved . So the defendants were held liable. for committing the out of tort (malicious
procecution) and was compelled to pay compensation to the plaintiff.
FACULTY OF LLW
LL3 I YEAR (3 MDC)
Oct/Nov 1999
part-III

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1. Explain in the following general Defences :-

Volenti non-fit injuria, Act if god and statutory authority
2. “As a general rule motive is not relevant is not relevant to determine person’s liability in
the Law of Tort . Discuss with decided case for and against.
3. State the rule whether the following persons can sue and he sued in Tort:-
1) Corporations
2) Infants and
3) Married women.
4. Themasteris vicariously liable for the wrongful act done by his servant in thecourse of
emplpyment discusss this with reference to decided cases.
5. Define the term ‘Definition and what are the defences available to the defendant in an
action for defenetion
6. What is Nuisance what essential are required to be proved for private Nuisance
7. ‘Trespass to land is actionable perse “- Explain with decoded cases.
8. what are the remedies available to the plaintiff after the tort is commited?
9. Expalin the facts and the principles laid down in any one of the following cases
a) rylands vs Fletcher (1890) L.R. 3H.L. 330

b) Hulton cc. V.Jones (1910) A.C.20
10. Write short notes on any two of the following

a) malice in fact and Malice in Law
b) Nervous Shock
c) Contributory Negligence
d) False Imprisonment
FACULTY OF LAW
st
LL.B.1 Year (3YDC) & III Year (5 YDC) (Common) Examination
JULY , 2000
SUB: LAW OF TORTS AND CONSUMER PROTECTION
PAPER-III

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1. tort is a civil wrong but all civil wrongs are not tort. Explain.
2. Discusss the defence of consent in torts . State the exceptions to it.
3. When is the master Vicariously liable for the torts committed by his servant?
4. ‘Joint tort-feasors are jointly and severally liable for the whole damage resulting from the
tort”. Discuss the law relating to release and contribution of joint tortfeasors.
5. “Actio Personalis moriturcum persona” (Personal right of action ends with the death of
the person). Discuss the relevant statutes pertaining to this maxim.
6. Discusss the Distiction between Assault and Battery.
7. what is ‘False Imprisonment’? what are its ingredients and defences?
8. Discuss the law realting to ‘Nervous shock (with decided cases).
9. Who is a ‘cosumer’ under the Ladian consumer Protection Act. Give the Judicial decision
in this regard.
10. Write short notes on any two of the following:
i) Negligence in torts and in consumer protection Act

ii) consumer forums.
iii) Public nuisance and private nuisance.
iv) Libel and slander

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lOMoARcPSD|4550090

General Principles of Law of Torts (Osmania University)

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Law of torts in India

Reasons for slow development in INDIA

B. LACK OF POLITICAL CONSCIOUSNESS.

E. EXPENSIVE AND DILATORY.

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B. LACK OF POLITICAL CONSCIOUSNESS.

E. EXPENSIVE AND DILATORY JUDICIAL SYSTEM.

RECENT TRENDS UNDER LAW OF TORTS

A. RULE OF NO FAULT LIABILITY.

B. RULE OF STRICT LIABILITY.

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B. RULE OF ABSOLUTE LIABILITY.

a. Tort is a civil wrong.

b. This wrong is different from breach of contract.

c. This tort is redresseble by an action for unliquidated damages.

According to Fraser “ A tort is an infringement of right of a private individual giving a right of

DEFINITION OF Dr. WINFIELD.

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a. Tortious liability arises from breach of duty fixed by law.

b. This duty is also towards persons generally.

c. Breach of duty is redressible by an action for unliquidated damages.

A. BREACH OF DUTY FIXED BY LAW.

B. DUTY IS TOWARDS PERSONS GENERALLY.

C. BREACH OF DUTY IS REDRESSABLE BY ACTION FO DAMAGES.

CRITICISM OF WINFIELD’S DEFINITION.

a. DUTY FIXED BY LAW.

b. DUTY TOWARDS PEROPLE GENERALLY.

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CRITICISM ON WINFIELDiS DEFINATION.

a. DUTY FIXED BY LAW.

B. DUTY TOWARDS PEOPLE GENERALLY.

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What are the essential elements of a tort?

What are the general conditions of liability in tort?

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A. DAMNAUM SINE INJURIA.a.

B. INJURIA SINE DAMNUM.

A. Damnum sine injuria

The meaning of the above maximum is as follows considered

SINE : The terms sine means without

INJURIA : The term injuria means violation of legal rights

DEFINITION. SIR FEDERIC POLLOCK.

GLOUXESTER GRAMMER SCHOOL CASE, 1410

B. INJURIA SINE DAMNUM.

The meaning of the three terms in the above maximum is as follows,

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INJURIA: The term injuria means violation of legal rights.

SINE: The item sine means without

Salmond classified the tort into two kinds

ASHBY Vs. WHITE,1703.

MARZETTI VS. WILLIMS, 1930

UBI TUSI UBI REMEDIUM.

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ASHBY VS. WHITE,1703.