LAW OF TORTS

3 AND 5 YEARS LLB UNDER KARNATAKA STATE LAW

UNIVERSITY

MOST IMPORTANT PREVIOUS YEAR QUESTIONS

ALONG WITH ANSWERS

By
ANIL KUMAR K T
Mob: 9584416446
Karnataka State law university 1st semester 3 Year LLB.
ANIL KUMAR K T LLB COACH
Law of Torts
Most important questions
1. Define tort and explain the essential elements of torts?
2. Explain the liability of state for the torts committed by its servants.
3. What nuisance? Explain the different kinds of nuisance?
4. What is negligence? Discuss the important features of negligence with
suitable cases.
5. What is malicious prosecution? Explain its ingredients.
6. What are the general defenses available in case of tortious liability?
Explain.
7. Explain the maxim damnum sine injuria and damnum with the help of
leading cases?
8. What are the exceptions to non voluntinonfit injuria explain with cases?
9. Discuss the rule laid down in Rylands vs. Fletcher case with exceptions.
10.Explain the difference between Libel and slender.
11.Define Assault and distinguish between from battery?
12.Write a note on remoteness of damage.
13.Define defamation? And Explain with appropriate cases the essential
features of defamation?
14.Explain the term of complaint and complainant under the consumer
protection act 1986.
15.What is strict liability? Discuss the Exceptions to strict liability with
appropriate cases.
16.Discuss the concept of strict liability and absolute liability.
17.Explain the forums created under consumer protection act 1986.
18.Trace the development of law of torts in England and India.
19.Distinguish between Damnum sine injuria and injuria sine damnum?
20.Explain the plaintiff fault and act of God as general defenses with
decided cases.
21.What is vicarious liability? Explain with decided cases.
22.Difference between servant and a independent contractor.
 23.Write a note on false imprisonment.
24.Write a note on restrictive trade practice.
25.Who is consumer? Explain the objectives of consumer protection act.
26.Explain the composition, appointment and jurisdiction of national
commission.
27.For the purpose of promoting the sale, the tradesman adopts unfair
trade practices? What are those trade practices?
28.Write a note on Res Ipsa loquitur.

BY
ANIL KUMAR K T
LLB COACH
1.Define tort and explain the essential elements of torts?
Introduction:
The term ‘tort’ has been derived from the Latin word ‘tortum’ which means to
twist or to crook or a wrongful act rather than an act that is not straight or
lawful.
Definition:-
The tort is completely based on the common law of England which is codified
and to give also tort is a progressive law, so it is a very difficult certain
definition of this word, but various eminent jurists defined the term tort in the
following manner.
According to section 2(m) of the Indian limitation Act 1963,

‘Tort is a civil wrong which is responsible by an action for unliquidated and

which is other than a mere breach of contract or breach of trust’.

It’s according to Salmond

A tort is a civil wrong for which the remedy is an action for unliquidated( not
pre-fixed) damages and which is not exclusively the breach of contract or the
breach of trust or other merely equitable obligation.

Essentials of Torts

To constitute a tort-:

• There must be a wrongful act or omission committed by a person.

• The wrongful act or omission must result in legal remedy in the
form of an action for damages.
• The wrongful act must be of such a nature to given rise to a legal
remedy in the form of an action for damages.
Wrongful Act or Omission

To determine liabilities in tort it must be proved that the act or omission done
by the one person was a wrongful act. The act or omission must be legally
wrongful. Violation of moral, social, and religious rights does not come under
the category of torts.
Legal Damages

Another essential element is wrongful act or omission committed by one

person must result in legal damages to the other i.e. Such act or omission
resulted in a violation of legal remedy to another person. The following are the
essential ingredients of the legal damages:

• There must be an infringement (violation) of a legal right (absolute

or qualified).
• Such infringement of a legal right must have a presumption of
damage in the eye of the law.
• Proof of actual damages suffered in case the right contravened is
not an absolute but only a qualified right.
The real significance of legal damage can be

Best illustrated by the following two maxims:-

Injuria sine damnum

It denotes harm with no damages Which means that there has been a violation
of legal rights but no damage has been done to the plaintiff. It basically
indicates that the plaintiff suffers no loss or damage; only his legal rights are
violated.

Bhim Singh vs. Jammu & Kashmir State

Bhim Singh (plaintiff) was a J&K Assembly MLA. While being on his way to
Assembly, the plaintiff was wrongfully detained by police by police. He was
also not taken to the Magistrate. This act did not cause him physical or
financial harm, but it probably violated his legal & fundamental rights. The
State was found liable and ordered to pay compensation for damages.

Damnum sine injuria

It denotes damages without causing harm. In short, the plaintiff has suffered
losses. They may be physical or pecuniary in nature, but no legal rights are
violated.
Gloucester Grammar School

In this case, the defendant established a school in the same neighbourhood as

the plaintiff’s school. The defendant even lowered the school’s fees. This was
not a tort case because the plaintiff suffered the only loss of money and none
of his legal rights were breached.

Legal Remedy

To be successful in an action for torts the last essential is that the wrongful act
or omission must come under the category of wrongs for which the remedy is
a civil action for damages.

A tort is a civil injury, but all civil injuries are torts. The wrongful act must come
under the category of wrongs for which the remedy is a civil action for
damages. Though the specific remedy for a tort is an action for damages. But
there are other remedies also i.e. An injunction may be obtained in addition to
damages in certain cases of wrongs. To similarly, specific restitution of a
chattel may be claimed in an action for the detention of a chattel.

Conclusion

There are a few resemblances between crime & tort, so even though tort, or
private action, was used better over the past centuries than criminal statutes.
For instance, assault is both a criminal offence and a tort. A tort permits a
person, the victim, to acquire a remedy that is beneficial to them. Illegal acts,
on the other hand, are continued to pursue not to acquire redress to aid or
assist a person – through criminal trials frequently have the power to grant
such remedies – but to remove an individual’s freedom on behalf of the state.
This tries to explain why incarceration is commonly used as a punishment for
serious crimes but not for torts.

2.Explain the liability of state for the torts committed by its servants.
Introduction:
Introduction:
Vicarious liability is the liability that lies upon a person for an act done by
someone else. It comes into play often in master-servant relationships.
Constitutional Tort is generally a judicial instrument by which the state can be
held vicariously liable for the acts of its servants. It’s the legal action to get legal
remedy in the form of damages when any of the constitutional rights are
violated. The only exception lying is that it cannot be made liable if the act is
done in exercise of sovereign (government) functions.

As there is no legislation which specifies the vicarious liability of the state for the
torts committed by its servants, it is under Article 300 of The Constitution of
India, 1950 by which enumeration of the right to file a suit comes from.

Art. 300 gives the right to the public to sue the state. While it came into force
after the implementation of the Constitution in 1950, similar provisions were
also there in Government of India (hereafter GOI) Act of 1935 under article 176
which has similar provision as in GOI Act of 1915 and of 1858 under Articles 32
and 65 respectively. Article 65 of the GOI Act of 1865 read, “All persons and
bodies politic shall and may have and take the same suits, for India as they could
have done against the said Company.

Suits and Proceedings.

(1) The Governor of India may sue or be sued by the name of the Union and the
Government of a State may sue or be sued by the name of the State and may,
subject to any provisions which may be made by the Act of Parliament or of the
legislature of such State enacted by virtue of powers conferred by this
Constitution, sue or be sued in relation to their respective affairs in the like cases
as the Dominion of India and the corresponding Provinces or the corresponding
Indian States might have sued or been sued if this Constitution had not been
enacted.

(2) If at the commencement of this Constitution,

(a) any legal proceedings are pending to which the Dominion of India is a party,
the Union of India shall be deemed to be substituted for the Dominion in those
proceedings; and

(b) any legal proceedings are pending to which a Province or an Indian State is
a party, the corresponding State shall be deemed to be substituted for the
Province or the Indian State in those proceedings.

A general reading of part 1 of the Article tells about suing the state and other
dominions by their name in the same way as they have been if the constitution
had not been enacted. Part 2 talks about pending legal proceedings against the
state and provides to substitute dominion of India with Union of India and
province with Indian State respectively in clauses (a) and (b).

Case Laws:

1. P & O Navigation Company v Secretary of State for India– This was

the first case in which the Sovereign immunity of the state was
debated. There was a piece of a funnel made up of iron which was
being carried by some workers on a Government’s steamer, which in
its way hit plaintiff’s horse-driven carriage. Plaintiff sued the Govt. for
damages due to negligence on the part of the servants employed by
the govt.
Held- “The Government cannot be held liable when the injuries are caused while
carrying out sovereign functions but is liable when the acts of the servants are
non-sovereign functions”.

2. Nobin Chunder Dey v Secretary of State– When the Plaintiff pleaded

for damages for refusal of Government to give him licence to sell liquor
and drugs, it was held that it was out of sovereign functions of the state
and thus, is out of reach of tortious liability. Since this decision, the
distinction between sovereign and non-sovereign functions is the
foremost criteria that are looked into by the courts in their judgements.
3. Rajasthan v Mst. Vidyawati– The facts were that in this case- a
Government jeep hit a pedestrian who eventually died of an accident.
The plea of Sovereign immunity was rejected but it was held that the
government cannot be held liable for the “Act of State” under Article
300. Compensation of Rs. 15000 was given. The Hon’ble Supreme
Court stated that “in the modern era, the liability of State is not limited
to Sovereign functions, but is socialistic and is related to the welfare of
the people and thus, the old immunity of State functions is irrelevant”.

Conclusion
While concluding, it may be stated that the doctrine of Constitutional Tort is a
creative jurisprudence evolved by the Courts in spite of the fact that the criteria
employed had faced various criticism in the past. The Apex Court must evolve a
scientific criterion for future cases. The “voting right model” of the United States
may be adopted for measuring the damages in Constitutional Tort actions to
prevent the victim from a legal injury to their rights.
3.What nuisance? Explain the different kinds of nuisance?
Introduction:
What is Nuisance?

The word 'Nuisance' is derived from the French word 'nuire' and the Latin
word 'nocere' which means to do hurt or to annoy. .Blackstone describes
Nuisance as something that "worketh hurt, inconvenience or damage.
Nuisance is an activity or state of affairs that interferes with the use of
enjoyment of land or rights over land or with the health, safety, or comfort of
the public at large. In simple words, Nuisance is an in injury to the right of a
person in possession of property to undisturbed enjoyment of it and results
from an improper use of by another person of his own property

Kinds of Nuisance:

There are two Kinds of Nuisance

I) Public Nuisance, and
II) Private Nuisance

I) Public Nuisance:

Public Nuisance is a crime. According to Section 268 of the Indian Penal

Code, Public Nuisance is a Criminal offence. It says that A person is guilty of a
public nuisance who does any act or is guilty of an illegal omission which
causes any common injury, danger or annoyance to the public or to the people
in general who dwell or occupy property in the vicinity, or which must
necessarily cause injury, obstruction, danger or annoyance to persons who
may have occasion to use any public right.
Public Nuisance can only be the subject of one action, otherwise, a party might
be ruined by a million suits.
Public nuisance does not create a civil cause of action for any person. In order
that an individual may have a private right of action in respect of a public
nuisance, the following must be proved -

(1) He must show a particular injury to himself beyond that which is suffered
by the rest of public.
(2) Such injury must be direct and not mere consequential injury.

(3) The injury must be of suspension character.

Relevant Case law :

Soltau v De Held, (1851) Sim NS 133

In this case, the plaintiff resided in a house next to a Roman Catholic Chapel
of which the defendant was the priest and the Chapel Bell was Rang at all
hours of the day and night. It was held that the ringing was a public nuisance
and the plaintiff was held entitled to an injunction.

II) Private Nuisance:

Private Nuisance is the using or authorising the use of one's property, or of

anything under one's control, so as to injuriously affect an owner or occupier
of property by physically injuring his property or affecting its enjoyment by
interfering materially with his health, comfort or convenience.

Private nuisance in contrast to the public nuisance is an act affecting some

particular individual or individuals as distinguished from the public at large. It
cannot be made the subject of an indictment, but maybe the ground of civil
action for damages or an Injunction or both.

Essentials of Private Nuisance :

Essentials of Private Nuisance are (1) an unlawful act, and (2) damage actual or
presumed. Damage actual or presumed is an essential element for an action on
nuisance.

Kinds of Private Nuisance:

There are three kinds of Nuisance

(1) Nuisance by encroachment on a neighbour's land

(2) Nuisance by direct physical Injury to a neighbour's land.

(3) Nuisance by interference with a neighbour's quiet enjoyment of his life.

Highway :

If a nuisance is created on a highway by a private individual, liability would

arise if any person is injured as a result of what he has been done irrespective
of negligence. If anything is placed on a highway which is likely to cause an
accident being an obstruction to those who are using the highway on their
lawful occasion such as vehicle unlighted and unguarded standing there at
night and an accident results, there is an actionable nuisance.

Relevant Case law

Ware Vs. Garstone Haulage Co. Ltd. (1944) KB 30

In this Case, A trailer attached to a lorry was kept unattended on the highway.
At night time no near light was shown. A motorcyclist ran into the trailer. It
was held that it was an obstruction on the highway and as such as a public
nuisance.
4.What is negligence? Discuss the important features of negligence with
suitable cases.

Introduction
It is already known that the Indian law of torts is based on the English common
law. Thus, the law relating to negligence is adopted and modified by the courts
of India on the principles of justice, equity and good conscience. The term
Negligence is derived from the Latin word negligentia, which means ‘failing to
pick up’. In the general sense, the term negligence means the act of being
careless and in the legal sense, it signifies the failure to exercise a standard of
care which the doer as a reasonable man should have exercised in a particular
situation. Negligence in English law emerged as an independent cause of action
only in the 18th century. Similarly in Indian law, the IPC, 1860 contained no
provision for causing the death of a person by negligence which was
subsequently amended in the year 1870 by inserting section 304A.

Definition of Negligence
According to Winfield and Jolowicz, Negligence is the breach of a legal duty of
care by the plaintiff which results in undesired damage to the plaintiff.

In Blyth v. Birmingham Water Works Co, Negligence was defined as the omission
to do something which a reasonable man would do or doing something which a
prudent or reasonable man would not do.

It can be characterized in three forms-

Nonfeasance: It means the act of failure to do something which a person should

have done. For example, failure to carry out the repairs of an old building when
it should have been done.

Misfeasance: It means the act of not doing an action properly when it should
have been done properly. For example, Doing the repairs of an old building but
doing so by using very poor quality materials creating a major probability of a
collapse which injures people.

Malfeasance: It means the act of doing something which should not have been
done in the first place itself. For example, using products that are not allowed
and combustible to carry out the repairs of an old building, therefore, converting
the building into a firetrap leading to an accident.

Important Features of negligence.

1) Duty Of Care

It is one of the essential conditions of negligence in order to make the person

liable.
It means that every person owes, a duty of care, to another person while
performing an act. Although this duty exists in all acts, but in negligence, the
duty is legal in nature and cannot be illegal or unlawful and also cannot be of
moral, ethical or religious nature.
In the case of Stansbele vs Troman(1948), A decorator was engaged to carry out
decorations in a house. Soon after The decorator left the house without locking
the doors or informing anyone. During his absence, a thief entered the house
and stole some property the value of which the owner of the house claimed
from the decorator. It was held that the decorator was liable as he was negligent
in leaving the house open and failed his duty of care.

2)The Duty must be towards the plaintiff

A duty arises when the law recognizes a relationship between the defendant and
the plaintiff and requires the defendant to act in a certain manner toward the
plaintiff. It is not sufficient that the defendant owed a duty of care towards the
plaintiff but it must also be established which is usually determined by the judge.

The case of Donoghue v. Stevenson (1932) has evolved the principle that we
each have a duty of care to our neighbor or someone we could reasonably
expect to be affected by our acts or omissions. It was held that, despite no
contract existed between the manufacturer and the person suffering the
damage an action for negligence could succeed since the plaintiff was successful
in her claim that hat she was entitled to a duty of care even though the defective
good i.e a bottle of ginger beer with a snail in it was bought, not by herself, but
by her friend.

3)Breach of Duty to take care

It’s not enough for a plaintiff to prove that the defendant owed him a duty of
care but he must also establish that the defendant breached his duty to the
plaintiff.A defendant breaches such a duty by failing to exercise reasonable care
in fulfilling the duty. In other words, the breach of a duty of care means thatthe
person who
has an existing duty of care should act wisely and not omit or commit any act
which he has to do or not do as said in the case of Blyth v. Birmingham
Waterworks Co, (1856). In simple terms, it means non-observance of a standard
of care.

In the case of Ramesh Kumar Nayak vs Union of India(1994), The post authorities
failed to maintain the compound wall of a post office in good condition on the
collapse of which the defendant sustained injuries. It was held that postal
authorities were liable since that had a duty to maintain the post office premises
and due to their breach of duty to do so, the collapse occurred. Hence they were
liable to pay compensation.

4)Actual cause or cause in fact

In this scenario, the plaintiff who is suing the defendant for negligence has the
liability to prove is that the defendant’s violation of duty was the actual cause
of the damages incurred by him. This is often called the “but-for” causation
which means that, but for the defendant’s actions, the plaintiff would not have
incurred the damages.
For example, When a bus strikes a car, the bus driver’s actions are the actual
cause of the accident.

5)Proximate cause

Proximate cause means “legal cause,” or the cause that the law recognizes as
the primary cause of the injury. It may not be the first event that set in motion
a sequence of events that led to an injury, and it may not be the very last event
before the injury occurs. Instead, it is an action that produced foreseeable
consequences without intervention from anyone else. A defendant in a
negligence case is only responsible for those damages that the defendant could
have foreseen through his actions.
In the case of Palsgraf vs Long Island Railroad Co(1928), A man was hurrying
while trying to catch a train and was carrying a packed item with him. The
employees of the railway saw the man who was attempting to board the train
and thought that he was struggling to do so. An employee on the rail car
attempted to pull him inside the train while the other employee who was on the
platform attempted to push him to board the train. Due to the actions of the
employees, the man dropped the package. Which had contained fireworks, and
exploded when it hit the rails. Due to the explosion, the scales fell from the
opposite end of the station and hit another passenger, Ms. Palsgraf, who then
sued the railway company. The court held that Ms. Palsgraf was not entitled to
damages because the relationship between the action of the employees and the
injuries caused to him were not direct enough. Any prudent person who was in
the position of the railway employee could not have been expected to know that
the package contained fireworks and that attempting to assist the man the
railcar would trigger the chain of events which lead to Ms. Palsgraf’s injuries.
6)Consequential harm to the plaintiff

Proving that the defendant failed to exercise reasonable care is not enough. It
should also be proved that the failure of the defendant to exercise reasonable
care resulted in damages to the plaintiff to whom the defendant owed a duty of
care.

When such damage is proved, the defendant is bound to compensate the

plaintiff for the damages occurred.

In the case of Joseph vs Dr. George Moonjely(1994) The Kerela high court
awarded damages amounting to Rs 1,60,000 against a surgeon for performing
an operation on a 24-year-old girl without following proper medical procedures
and not even administering local anaesthesia.

5.What is malicious prosecution? Explain its ingredients.

Introduction:

Proceedings instituted maliciously may include not only malicious prosecution

and malicious arrest but also malicious bankruptcy and liquidation proceeding
(civil proceedings), malicious execution of process against property, and
malicious search. Malicious prosecution is the malicious intention of
unsuccessful criminal or bankruptcy or liquidation proceedings against another
without reasonable or probable cause. Generally, it can be said that the
malicious prosecution is defined as a judicial proceeding instituted by one
person against another, from wrongful or improper motive, without any
reasonable and probable cause to justify it.

A malicious prosecution consists in maliciously causing process to be issued,

whereas an abuse of process is the employment of legal process for some
purpose other than that which it was intended by the law to affect the improper
use of a regularly issued process.”

“A judicial proceeding instituted by one person against another, from wrongful

or improper motive and without probable cause to sustain it is a malicious
prosecution.”
Following are the essential elements which the plaintiff is required to prove in a
suit for damages for malicious prosecution:-

• Prosecution by the defendant.

• Absence of reasonable and probable cause.
• Defendant acted maliciously.
• Termination of proceedings in the favour of the plaintiff.
• Plaintiff suffered damage as a result of the prosecution.

1. Prosecution by the defendant

The first essential element which the plaintiff is required to prove in a suit for
damages for malicious prosecution is that he (plaintiff) was prosecuted by the
defendant.[5] The word “prosecution” carries a wider sense than a trial and
includes criminal proceedings by way of appeal, or revision.[6] In the case
of Musa Yakum v. Manilal,[7] it was held that it is no excuse for the defendant
that he instituted the prosecution under the order of a Court, if the Court was
moved by the defendant’s false evidence to give the order.

In the case of Khagendra Nath v. Jacob Chandra,[8]the Court held that merely
bringing the matter before the executive authority did not amount to
prosecution and, therefore, the action for malicious prosecution could not be
maintained.

It is significant to note that departmental enquiry by disciplinary authority

cannot be called prosecution.[9]

2. Absence of reasonable and probable cause

In a suit for damages for malicious prosecution, the plaintiff has also required to
prove that the defendant prosecuted him without reasonable and probable
cause. The question relating to want of reasonable and probable cause in a suit
for malicious prosecution should be decided on all facts before the Court.[10] In
the case of Antarajami Sharma v. Padma Bewa,[11]it has been said that law is
settled that in a case of damages for malicious prosecution, onus of proof of
absence of reasonable and probable clause rests on the plaintiff.
The existence of reasonable and probable cause is of no avail if the prosecutor
prosecuted in ignorance of it. The dismissal of a prosecution or acquittal of the
accused does not create any presumption of the absence of reasonable and
probable cause. If a man prefers an indictment containing several charges,
whereof for some there is, and for others there is not, probable cause, his
liability for malicious prosecution is complete.[12]

3. Defendant acted maliciously:-

In a suit for damages for malicious prosecution, it is another essential element

which the plaintiff is required to prove that the defendant acted maliciously in
prosecuting him and not with a mere intention of carrying the law into effect.
Malice need not be a feeling of enmity, spite or ill will or spirit of vengeance but
it can be any improper purpose which motivates the prosecutor, such as to gain
a private collateral advantage.

In the case of Bank of India v. Lekshmi Das,[13] the Court reiterated the Indian
position that in malice absence of a probable and reasonable cause must be
proved. The proceedings complained of by the plaintiff must be initiated in a
malicious spirit that is from an indirect and improper motive and not in
furtherance of justice.[14] Malice may be inferred upon proof of absence of
honest belief in the accusation and consequent want of reasonable and
probable cause for instituting the prosecution complained of.[15]

It is not necessary that the defendant should be acting maliciously right from the
moment the prosecution was launched. If the prosecutor is innocent in the
beginning but becomes malicious subsequently, an action for malicious
prosecution can lie. If during the pendency of criminal prosecution, the
defendant gets positive knowledge of the innocence of the accused, from that
moment onwards the continuance of the prosecution is malicious.[16]

4. Termination of proceedings in the favour of the plaintiff:-

In a suit for damages for malicious prosecution, it is essential to show that the
proceedings complained of terminated in favour of the plaintiff. Termination in
favour of the plaintiff does not mean judicial determination of his innocence; it
means absence of judicial determination of his guilt.[17] Malice need not be a
feeling of enmity, spite or ill will or spirit of vengeance but it can be any improper
purpose which motivates the prosecutor, such as to gain a private collateral
advantage.
No action can be brought when the prosecution or the proceedings are still
pending. It is a rule of law that no one shall be allowed to allege of a still pending
suit that it is unjust. [18]

5. Plaintiff suffered damage as a result of the prosecution:-

In a suit for damages for malicious prosecution, it is another essential element

which the plaintiff is required to prove that The plaintiff suffered damage as a
result of the prosecution. In a claim for prosecution, the plaintiff can thus claim
damages on the following three counts[19]:-

• Damage to the plaintiff’s reputation,

• Damage to the plaintiff’s person,
• Damage to the plaintiff’s property.

Conclusion:

It can be said that the malicious proceedings are that proceedings which are
initiated with malicious intent. The elements (i.e. prosecution by the defendant,
absence of reasonable and probable cause, defendant acted maliciously,
termination of proceedings in the favour of the plaintiff and plaintiff suffered
damage as a result of the prosecution) which are necessary to the plaintiff to
prove in a suit for damages for malicious prosecution must be fulfilled. However,
on the basis the facts and circumstances, the Court should decide whether the
suit is filed maliciously or not.

6.What are the general defenses available in case of tortious liability?

Explain.
Introduction:

Meaning of General Defences

When a plaintiff brings an action against the defendant for a tort committed by
him, he will be held liable for it, if there exists all the essential ingredients which
are required for that wrong. But there are some defences available to him using
which he can absolve himself from the liability arising out of the wrong
committed. These are known as ‘General defences’ in the law of tort.
The defences available are given as follows:

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

• The wrongdoer is the plaintiff

• Inevitable accident
• Act of god
• Private defense
• Mistake
• Necessity
• Statutory authority

Volenti non fit injuria

In case, a plaintiff voluntarily suffers some harm, he has no remedy for that
under the law of tort and he is not allowed to complain about the same. The
reason behind this defence is that no one can enforce a right that he has
voluntarily abandoned or waived. Consent to suffer harm can be express or
implied.

Some examples of the defence are:

• When you yourself call somebody to your house you cannot sue your
guests for trespass;
• If you have agreed to a surgical operation then you cannot sue the
surgeon for it; and
• If you agree to the publication of something you were aware of, then
you cannot sue him for defamation.
• A player in the games is deemed to be ready to suffer any harm in the
course of the game.
• A spectator in the game of cricket will not be allowed to claim
compensation for any damages suffered.
For the defence to be available the act should not go beyond the limit of what
has been consented.
In Hallv. Brooklands Auto Racing Club[1], the plaintiff was a spectator of a car
racing event and the track on which the race was going on belonged to the
defendant. During the race, two cars collided and out of which one was thrown
among the people who were watching the race. The plaintiff was injured. The
court held that the plaintiff knowingly undertook the risk of watching the race.
It is a type of injury which could be foreseen by anyone watching the event. The
defendant was not liable in this case.

Negligence Liability

• Sub-section 1 puts an absolute ban on a person’s right to exclude his

liability for death or personal injury resulting from the negligence by
making a contract or giving a notice.
• Sub-section 2 is for the cases in which the damage caused to the
plaintiff is other than personal injury or death. In such cases, the
liability can only be avoided if a contract term or notice satisfies the
reasonability criteria.
• Sub-section 3 says that a mere notice or agreement may be enough for
proving that the defendant was not liable but in addition to that some
proofs regarding the genuineness of the voluntary assumption and
plaintiff’s consent should also be given.

Plaintiff the wrongdoer

There is a maxim “Ex turpi causa non oritur actio” which says that “from an
immoral cause, no action arises”.

If the basis of the action by the plaintiff is an unlawful contract then he will not
succeed in his actions and he cannot recover damages.

If a defendant asserts that the claimant himself is the wrongdoer and is not
entitled to the damages, then it does not mean that the court will declare him
free from the liability but he will not be liable under this head.

In the case of Bird v. Holbrook[18], the plaintiff was entitled to recover damages
suffered by him due to the spring-guns set by him in his garden without any
notice for the same.
Inevitable accident

Accident means an unexpected injury and if the same accident could not have
been stopped or avoided in spite of taking all due care and precautions on the
part of the defendant, then we call it an inevitable accident. It serves as a good
defence as the defendant could show that the injury could not be stopped even
after taking all the precautions and there was no intent to harm the plaintiff.

In Stanley v. Powell, the defendant and the plaintiff went to a pheasant shooting.
The defendant fired at a pheasant but the bullet after getting reflected by an
oak tree hit the plaintiff and he suffered serious injuries. The incident was
considered an inevitable accident and the defendant was not liable in this case.

Act of God

Act of God serves as a good defence under the law of torts. It is also recognized
as a valid defence in the rule of ‘Strict Liability’ in the case of Rylands v.
Fletcher[28].

The defence of Act of God and Inevitable accident might look the same but they
are different. Act of God is a kind of inevitable accident in which the natural
forces play their role and causes damage. For example, heavy rainfall, storms,
tides, etc.

Essentials required for this defence are:

• Natural forces’ working should be there.

• There must be an extraordinary occurrence and not the one which
could be anticipated and guarded against reasonably.

In Ramalinga Nadar v. Narayan Reddiar[29], the unruly mob robbed all the
goods transported in the defendant’s lorry. It cannot be considered to be an Act
of God and the defendant, as a common carrier, will be compensated for all the
loss suffered by him.

Private defence
The law has given permission to protect one’s life and property and for that, it
has allowed the use of reasonable force to protect himself and his property.

• The use of force is justified only for the purpose of self-defence.

• There should be an imminent threat to a person’s life or property.
For example, A would not be justified in using force against B just because he
believes that some day he will be attacked by B.

In Bird v. Holbrook[32], the defendant fixed up spring guns in his garden without
displaying any notice regarding the same and the plaintiff who was a trespasser
suffered injuries due to its automatic discharge. The court held that this act of
the defendant is not justified and the plaintiff is entitled to get compensation
for the injuries suffered by him.

Mistake

The mistake is of two types:

• Mistake of law
• Mistake of fact
In both conditions, no defence is available to the defendant.

When a defendant acts under a mistaken belief in some situations then he may
use the defence of mistake to avoid his liability under the law of torts.

In Morrison v. Ritchie & Co[35], the defendant by mistake published a statement

that the plaintiff had given birth to twins in good faith. The reality of the matter
was that the plaintiff got married just two months before. The defendant was
held liable for the offence of defamation and the element of good faith is
immaterial in such cases.

Necessity

If an act is done to prevent greater harm, even though the act was done
intentionally, is not actionable and serves as a good defence.

It should be distinguished with private defence and an inevitable accident.

The following points should be considered:

• In necessity, the infliction of harm is upon an innocent whereas in case

of private defence the plaintiff is himself a wrongdoer.
• In necessity, the harm is done intentionally whereas in case of an
inevitable accident the harm is caused in spite of making all the efforts
to avoid it.
For example, performing an operation of an unconscious patient just to save his
life is justified.

In Leigh v. Gladstone[37], it was held that the forcible feeding of a person who
was hunger-striking in a prison served as a good defence for the tort of battery.

Statutory authority

If an act is authorized by any act or statute, then it is not actionable even if it

would constitute a tort otherwise. It is a complete defence and the injured party
has no remedy except for claiming compensation as may have been provided by
the statute.

Immunity under statutory authority is not given only for the harm which is
obvious but also for the harm which is incidental.

In Vaughan v. Taff Valde Rail Co.[41], sparks from an engine of the respondent’s
railway company were authorized to run the railway, set fire to the appellant’s
woods on the adjoining land. It was held that since they did not do anything
which was prohibited by the statute and took due care and precaution, they
were not liable.

Conclusion
This article is to emphasize the important role played by General Defences in
avoiding one’s liability in torts. While learning about tort it is necessary to learn
about General Defences in the law of Tort. General defences are a set of
‘excuses’ that you can undertake to escape liability. In order to escape liability
in the case where the plaintiff brings an action against the defendant for a
particular tort providing the existence of all the essentials of that tort, the
 defendant would be liable for the same. It mentions all the defences which can
be pleaded in cases depending upon the circumstances and facts.

7.Explain the maxim damnum sine injuria and damnum with the help of
leading cases?

Introduction
The law of torts is a collection of all the circumstances in which court gives a
remedy by way of damages, for legally unjustified harm or injury done by one to
another person. There are three elements which need to be proved before
constituting a tort:-

1. There must be an act or omission on the part of the defendant.

2. That act or omission should be in violation of a legal right vested in the
plaintiff.
3. The wrongful act or omission thus done by the defendant is of such a
nature to give rise to a legal remedy.

S.No Damnum Sine Injuria Injuria sine Damnum

Damnum sine Injuria refers to the

Injuria Sine damnum is the legal injury
damages suffered by the plaintiff but no
1. caused to the plaintiff without any
damage is being caused to the legal
damage to the physical injury.
rights as there is no violation of it

It is an infringement of a legal right

It is the losses suffered without the
where even if no loss has been suffered
2. infringement of any legal right hence
by the plaintiff still creates an actionable
creating no cause of action.
cause of action.

No compensation in the form of Compensation in the form of damages is

3.
damages is awarded by the court. awarded by the court.

This maxim is for the legal wrongs which

This maxim is for the moral wrongs which
4. are actionable if the person’s legal right
have no action in the eyes of the law.
has been violated.
 The principle of this maxim is that a The principle of this maxim is that
person exercises in such a manner within whenever there is an invasion of a legal
5. reasonable limits which does not ground right there creates a cause of action and
action in tort merely because it causes the person whose right is vested is
damages to other people entitled to bring an action.

In this, the plaintiff suffers legal injury

In this, the plaintiff suffers a loss but has
6. doesn’t matter they have suffered any
suffered no legal injury.
loss on that account.

Damages without injury are not This is actionable since there is a

7.
actionable violation of a legal right.

Case law on Damnum Sine Injuria

Mogul steamship co. ltd vs. McGregor, Gow & co.

In the following case of Mogul steamship co. ltd vs. McGregor, Gow & co., the
plaintiff was an independent ship-owner who used to send his cargo port to
obtain cargo from China to England. An association of 4 ship-owners, also the
defendants in the following case offered a special concession to customers to
oust their rival, the plaintiff in this case. The plaintiff under these circumstances
suffered loss and sued all four of them for compensation of the losses he
suffered. Since, the general principle of Damnum Sine Injuria expresses that ‘if
one exercises his common or ordinary rights, within reasonable limits, and
without infringing other’s legal right; such an exercise does not give rise to an
action in tort in favour of that other person.’

Case law on Injuria sine Damnum

Bhim Singh Vs. State of Jammu & Kashmir

In the following case of Bhim Singh vs. State of Jammu & Kashmir, Mr Bhim
Singh, an MLA of Jammu & Kashmir was arrested & detained in police custody
& was deliberately prevented from attending the sessions of the legislative
assembly to be held. There was also a voting session which was going to be held
and since he was not allowed to go. At the assembly session where his vote was
very important. Though the person to whom he wanted to vote won but his right
to vote was infringed.

Conclusion
The conclusion of the two maxims are such that one is a moral wrong for which
the law gives no remedy even though they cause great loss or detriment to the
plaintiff’s but on the other hand other one is a legal wrong for which the law
does give a legal remedy though there be violation of a private right, without
actual loss or detriment in that particular case.

8.What are the exceptions to non voluntinonfit injuria explain with cases?

Introduction
In the law of torts, if any person commits any wrongful act which causes injury
to another person, he is held liable and has to pay damages or provide some
other remedy which the Court determines, to the victim of such an act.

But in some cases even if a person suffers some loss because of the act of
another person, he cannot claim damages from that person because of the
operation of defences of tort. One such defence available to a defendant is the
defence of volenti non fit injuria in which the plaintiff is not entitled to damages
because he consents to the act which has caused injury to him.

What is volenti non-fit injuria?

In the law of torts, there is a duty on every person do acts with reasonable care
in order to avoid any harm which may occur due to their failure of taking such
care. For e.g., If a person is driving his car, he has a duty to drive the car safely
and within speed limits so that no accident occurs which can also harm any other
person.

Exceptions on the application of volenti non fit injuria

There are certain limitations under which the defence of volenti non fit injuria
cannot be taken by a defendant even if the essentials of this defence are present
in the case.
Rescue Cases

When the plaintiff suffers an injury as a result of him doing an act which he
knows is likely to cause harm to him but it is an act to rescue someone, then this
defence will not apply and the defendant will be held liable.

Illustration: A fire is caused due to the negligence of A, and B is trapped inside

the fire. C sees B and jumps into the fire to rescue him but in doing so he is also
burned. Here even though C went into the fire voluntarily, knowing fully well
that he may be burned, A will be held liable for negligence and the defence of
volenti non fit injuria cannot be applied in this case, therefore, C will is entitled
to receive damages from A.

In the case of Haynes v. Harwood (1935), 1 KB 146, the servant of the defendant
brought two horses in the town near a police station and left them to do some
other work. The horses were upset by the children and they broke free, seeing
them in rage the plaintiff who was a police officer went to stop the horses and
in doing so he got injured and brought a case against the owner for damages.
The court held the defendant liable because the defence of volenti non-fit injuria
did not apply in a rescue case.

Illegal Acts

If the consent is given for an act which is not allowed by law then, even on the
fulfilment of all the essential conditions of this defence, the liability cannot be
escaped and thus in such cases, this defence becomes inoperative.

Illustration: If A and B decide to do a fight with sharp swords, when such an act
is prohibited by law, and A suffers a big cut due to which he suffers serious
injuries, then in such case B cannot take the defence of having A’s consent in
doing this act because it was prohibited by law and thus B will be liable.

Negligence of the defendant

The defence of volenti non fit injuria is not applicable in a case where the
defendant has been negligent. Thus only where there is no negligence by the
defendant, he can claim this defence to escape liability.
Illustration: If A goes undergoes a heart operation and he gives his consent for
it even though he knows that there is a risk of the operation failing which can
cause his death, the surgeon will not be liable if A dies as a result of the surgery
if he had taken all due care. But if the operation had failed because of the
negligence in carrying out the surgery then in such a case, the surgeon cannot
claim the defence of having received the consent of A and he will be liable
because there was negligence on his part in conducting the surgery.

In the case of Slater v. Clay Cros Co. Ltd. 1956] 2 QB 264, the plaintiff was hit by
a train in the tunnel of the defendant railway company. The railway company
had given instructions to all the drivers of its trains that they have to blow the
whistle at the entrance of the tunnel and they should also slow the speed of the
train but the driver did not follow these instructions and negligently drove it
inside the tunnel, as a result, the plaintiff was injured. The defendant had taken
the defence of volenti non fit injuria but the Court held that this defence could
not be applied because even though the plaintiff took the risk of walking inside
the tunnel, this risk was enhanced by the negligence of the driver. Thus, when a
plaintiff gives his consent to take some risk, there is a presumption that the
defendant has not been negligent.

Conclusion
Volenti non fit injuria is one of the defence under the law of torts in which the
person who has committed a wrong is exempted from liability because the
victim of such a wrong gives his consent to the commission of such an act and
such a consent must be free for the successful application of this defence in a
case.

This defence is also subject to certain limitations such as rescue cases and the
negligence of the defendant in which even if the consent is given by the plaintiff,
the defendant is held liable.

9.Discuss the rule laid down in Rylands vs. Fletcher case with exceptions

INTRODUCTION
The principle of strict liability states that any person who holds dangerous
substances in his or her premises shall be held liable if it escapes the premises
and causes any harm. This concept came into being after the case of Rylands vs.
Fletcher, 1868.
As per the facts, F had a mill on his property, and to power it, he had constructed
a reservoir on his land. Due to some accident, the water from the reservoir
flooded the coal mine of R, his neighbor. Subsequently, R filed a suit against F.
The court held that the reservoir was built on the risk of the defendant and
during its operation, if any accident happens then the defendant would be held
liable, even if he was not negligent in his actions, for the accident and escape of
the material and the resultant damage caused.

Thus, from the aforementioned case, we can point out some essentials of the
case.
• Bringing and accumulating on the Defendant’s land.
• Something likely to cause mischief if it escapes.
• Non-natural use of the land by Defendant. There is no specific
definition of the Natural use of land. It can depend and vary from
place to place and from time to time.
• Escape of the material and foreseeable damage has taken place.
• Irrespective of the defendant’s degree of care.
It is called NO-FAULT LIABILITY.

ESSENTIALS OF STRICT LIABILITY

1. HAZARDOUS SUBSTANCE:
2. ESCAPE
3. NON-NATURAL USE OF LAND
HAZARDOUS SUBSTANCE:
• The liability only arises in the case where the defendant has a
dangerous substance on the land. For enforcing Strict Liability, a
thing can be hazardous if it escapes can lead to mischief or damage.
Stuff like bombs, growing poisonous trees, etc.
ESCAPE:
• Another condition to be fulfilled is the escape of the substance from
the defendant’s premises. However, if the damage is caused but
the substance is still within the premises, then there’s no strict
liability.
• For instance, if a person has grown poisonous trees on his field, but
the poisonous fruits of the trees fell on the neighbor’s garden,
eating which he died. Here, the defendant would be liable for the
consequent losses/damages.
 • Although, in another case, if the neighbor had entered the
defendant’s field for eating the poisonous apples. Then there would
be no liability of the defendant.
NON-NATURAL USE OF LAND:
• There is yet another prerequisite for the strict liability to be
applicable. There should be a non-natural use of the defendant’s
land. In the above-mentioned case of Rylands vs. Fletcher, the
construction of the reservoir was a non-natural use of land, due to
which the reservoir had burst and damaged Fletcher’s mine. A
water reservoir was considered to be a non-natural use of land in a
coal mining area, but not in an arid state.
• For example, in the case of Tesa Tape Asia Pacific Pte Ltd v Wing
Seng Logistics Pte Ltd [2006] SGHC 73, where the defendant put
containers on his field which was not meant for this purpose and its
sudden collapse resulted in damages to the property of the
claimant, this was considered a non-natural use of land.
These three requirements should be met at the same time in order to constitute
strict liability.

EXCEPTIONS TO THE CONCEPT OF STRICT LIABILITY

There are certain exceptions to the concept of strict liability:

1. PLAINTIFF’S FAULT/ SENSITIVENESS

2. ACT OF GOD
3. ACT OF THIRD PARTY
4. CONSENT OF THE PLAINTIFF
5. STATUTORY AUTHORITY
PLAINTIFF’S FAULT/ SENSITIVENESS
• If the plaintiff was at fault and thus damage is caused, then the
defendant would not be held liable because the plaintiff had
himself came in the contact with the hazardous thing.
• As in the case of EASTERN AND SOUTH AFRICAN TELEGRAPH CO.
LTD. VS. CAPETOWN TRAMWAYS CO. (1902), it was held that the
damage to the plaintiff’s property was caused not by the
defendant’s negligence but by the unusual sensitiveness of the
plaintiff’s property. Hence, no liability arose on the part of the
defendant in the present case.
ACT OF GOD
• The term “act of God” can be interpreted as an occurrence that is
beyond any control of human beings. Such happenings are entirely
 natural and take place without any intervention from the human
agency. They are impossible to be avoided even after being prudent
and cautious. The defendant would not be held liable for the
damage caused if the hazardous thing escapes due to such
unforeseeable and unavoidable natural events.
ACT OF THIRD PARTY
• The concept also doesn’t apply when the damage is caused by the
acts of a third party. Third-party means that the individual is
neither the servant of the defendant nor has any contract with or
influence over the work of the defendant. However, in cases where
the act of a third party can be foreseen, it is assumed that the
defendant should have taken care of it, otherwise he can be held
accountable.
• In the case of BOX vs. JUBB, the court held that the defendant
would not be held liable for the damage caused to the claimant’s
land, as the reservoir overflowed because a third party emptied his
drain through the defendant’s reservoir.
CONSENT OF THE PLAINTIFF
• This exception is based on the principle of volenti non-fit
injuria, which states that if a person puts himself in a circumstance
where harm may result, being well aware of the danger, they may
not be able to make a claim against the party in error.
• For instance, if A has a bike with broken breaks and B is well aware
of this fact but still rides it. In an accident, both suffer an injury but
B can’t sue A for damages as he consented to the foreseeable
dangers.
STATUTORY AUTHORITY
• According to it, a person would not be held liable for the damages
which arise by the acts approved by the legislature. However, the
statute itself may provide for compensation to the aggrieved party.
• In the case of GREEN vs. CHELSEA WATERWORKS CO. 70L(1984), a
principle belonging to the company, which was authorized by the
parliament to lay the main, burst without negligence of the
company and flooded the claimant’s premises; the company wasn’t
held liable.

10.Explain the difference between Libel and slender.

Introduction:
The basic difference between libel and slander is that libel is published
defamation, while slander is fleeting, mostly verbal. In the court of law, both
are considered defamation—that is, the communication of a false statement
that harms the reputation of an individual, business, or group. Some countries
also have defamation laws that protect religions; these are usually known as
blasphemy laws.

No Libel Slander
1) In England, libel is a civil Slander is merely a tort and not a
wrong as well as crime. crime, in India it is also a crime.

2) Libel is actionable per se i.e. Slander is actionable only when

without proof of actual special damage can be prove to have
damage. been its natural consequence or
when it conveys certain imputations.
3) Libel is a defamatory Slander is a defamatory statement
statement published in a published in a temporary or
permanent form. transitory form.

4) In England, the period of The period of limitation for Slander

limitation is six years for two years and in India one year.
libel. In India one year
5) The actual publisher of a libel The actual publisher of a slander is
may be an innocent person not likely to be an innocent person.
e.g. the news vendor who
sells a newspaper containing
libel.
6) Libel is often published It is likely that a slander may not be a
deliberately since it is usually deliberate publication and may have
a written statement been uttered in the heat of argument
or under provocation.

11.Define Assault and distinguish between from battery?

ASSAULT
 Assault comes in a picture before the battery. It happens when a person plans
and tries to harm to another person when a person commits an act of battery.
Act of assault can be tried under civil lawsuits as well as criminal lawsuits.

BATTERY

It means when a person came in physical contact or touches thing which

belongs to that person or things related to that person with the intention to
harm the other person this is known as Battery. In this the main ingredient
physical conduct, when the accused came in physical contact with the
intention to harm another person then the offense of Battery will be
committed. Every battery includes assault that’s why they both are used
together mostly.

Assault Battery

Every battery includes assault. Battery is an

Every assault does not include battery
aggravate form of assault.

Battery includes intentional application of

Assault is the attempt to commit
force to another person without any lawful
battery.
justification.

This is done to threaten a person This done to cause harm to a person.

here physical contact is not necessary In battery there must be a physical contact

For an Assault a mere apprehension of For a battery there must be an actual

danger is sufficient. application of physical force.

12.Write a note on remoteness of damage.

Introduction
The term ‘remoteness of damages’ refers to the legal test used for deciding
which type of loss caused by the breach of contract may be compensated by an
award of damages. It has been distinguished from the term measure of damages
or quantification which refers to the method of assessing in money the
compensation for a particular consequence or loss which has been held to be
not too remote.

In Arun Mills Ltd v Dhanrajmal Gobindram[1], it was stated with regard to

remoteness of loss, until recently it could fairly be said that, subject to the
decision in The Parana, the law on the remoteness of damage in a contract has
been codified by the decision in Hadley v Baxendale.

The rules on the remoteness of damage in the contract are found in the Court
of Exchequer’s judgment in Hadley v Baxendale[2], as interpreted in later cases.
In Hadley v Baxendale, the plaintiff’s mill had come to a standstill due to their
crankshaft breakage. The defendant carrier failed to deliver the broken
crankshaft to the manufacturer within the specified time. There has been a delay
in restarting the mill. The plaintiff sued to recover the profits they would have
made if the mill was started without delay. The court rejected the claim on the
ground that the mill’s profits must be stopped by an unreasonable delay in the
carrier’s delivery of the broken shaft to the third person.

Remoteness of Damage in Tort and Contract

This general principle imposes, on the plaintiff, a higher degree of contemplation
with regard to the likelihood of the particular loss than the corresponding
general principle in tort. Reasonable foreseeability is a test of remoteness in the
law of torts in case of contract a much higher degree of foreseeability is
required, i.e, a serious possibility or a real damages that the loss will occur. The
result is to limit damages more in contract than in tort. In H Parsons Ltd v Uttley
Ingham and Co. Ltd[3], the defendant failed to see that the livestock feed
supplied to the plaintiff should properly be ventilated as a result of which several
pigs of the plaintiffs died. The above test of damages in the contract was held
satisfied as the defendant could have contemplated a serious possibility of the
pigs getting ill.
13.Define defamation? And Explain with appropriate cases the essential
features of defamation?

Introduction
A man’s reputation is considered valuable property and every man has a right
to protect his reputation. This right is acknowledged as an inherent personal
right and is a jus in rem i.e., a right good against all persons in the world.
Defamation refers to any oral or written statement made by a person which
damages the reputation of another person. As per Black’s Law Dictionary,
defamation means “The offence of injuring a person’s character, fame, or
reputation by false and malicious statements”. If the statement made is
written and is published, then it is “libel”. If the defamatory statement is
spoken, then it is a “slander”.

Elements of Defamation

• The Statement should be made- A statement can be made by words

either spoken or intended to be read, or by signs or by visible
representations. For example, A is asked who stole B’s diamond ring. A
points to C, intending to cause everybody to believe that C stole the
diamond ring. This is defamation.
• The Statement must refer to the plaintiff- The defamatory statement
must refer to the person, class of persons or the trustees of a company.
The reference may be express or implied. It is not necessary that the
plaintiff has to be mentioned by name, if he can still be recognized. The
person referred to in the defamatory statement can be living or dead,
however, defamation suit on behalf of a dead person can be filed only
if the person filing the suit has an interest.
• The Statement must be defamatory- Defamation starts with someone
making a statement, and any person who makes a defamatory
statement can be held liable for defamation. A defamatory statement
tends to diminish the good opinion that others hold about the person
and it has the tendency to make others look at him with a feeling of
hatred, ridicule, fear or dislike. Abusive language may also be
defamatory, for example, to call a man hypocrite or a habitual
drunkard. A few illustrations to understand what is defamatory and
what is not. To say a motorist drives negligently is defamatory. To
criticize goods is not defamation. To say that a baker’s bread is always
 unwholesome is defamatory. To state that a person has not that
degree of skill which he holds himself as possessing is defamatory.
• The intention of the wrongdoer- The person making the defamatory
statement knows that there are high chances of other people believing
the statement to be true and it will result in causing injury to the
reputation of the person defamed.
• The Statement should be false- A defamatory statement should be
false because the truth is a defence to defamation. If the statement
made is true then there is no defamation as the falsity of the statement
is an essential ingredient of defamation. The law does not punish
anyone for speaking the truth, even if it is ugly.
• The Statement should not be privileged- In some cases, the
statements may be privileged i.e. the person who has made the
statement is protected from such liability.
• The Statement must be published- For defamation to occur, the
statement should be published. The statement should be
communicated to a third party. Any statement written in a personal
diary or sent as a personal message does not amount to defamation,
but if the sender knows that it is likely that a third person may read it,
then it amounts to defamation. In Mahendra Ram v. Harnandan
Prasad, the defendant was held liable because he had sent a
defamatory letter written in Urdu despite knowing the fact that the
plaintiff could not read Urdu and ultimately the letter will be read by
someone else.
• The third party believes the defamatory matter to be true- The other
people of the society believe that the defamatory matter said about
the plaintiff is true.
• The Statement must cause injury- The statement made should harm
or injure the plaintiff in some way. For example, the plaintiff lost his job
because of the statement made.

Conclusion
After analyzing all the key aspects of defamation as laid in section 499 IPC, we
have found that the essence of defamation lies in the injury to the reputation
of a person. And for this injury, he can very much sue the defendants.
Defamation is of two types libel and slander. Both are considered as criminal
offenses in India. There are certain exceptions to this known as privilege.
14.Explain the term of complaint and complainant under the consumer
protection act 1986.
According to sec-2(1)(b) a complainant can be a person who is:

• A consumer, or
• Any voluntary consumer association registered under the Companies
Act of 1956 or under any other law for the time being in force, or
• The Central Government or any State Government, who or which
makes a complaint, or
• One or more consumers, where there is more than one consumer they
shall have the same interest for filing a collective complaint, or
• In the case of death of a consumer, his legal heir or representative who
or which makes a complaint.

Complaint

The very first step before filing a complaint the aggrieved party should do is to
send a notice to the service provider from whom the goods were purchased or
the service was availed informing him about the defects in the goods or the
deficiency in the service or unfair practice. This notice is sent to the trader or the
aggrieved party in order to see if that company or trader is willing to give the
compensation or offer any other remedy. If in case the trader or service provider
is not willing to provide with any remedy, the aggrieved party shall go ahead
with filing a formal complaint.

The next step is to file a formal complaint under the Consumer Protection Act of
1986. Here the aggrieved party does not need to hire a lawyer in order to file a
complaint. He can file the complaint on his own. The aggrieved party just need
to write down the following contents on a plain paper:

• Name, description and the address of the complainant and of the

opposite party or parties
• Facts relating to the complaint and time and venue where it arose
• All the possible documents in support of the allegations contained in
the complaint
• The relief or the remedy claimed by the complainant
 • The complaint should consist of signatures of the complainant or his
authorized agent
The next step after the drafting of the complaint is to choose the appropriate
authority under whom the complaint is to be filed. The complainant shall choose
the authority according to pecuniary jurisdiction of his complaint i.e. the total
value of the goods or services and the compensation claimed by him. It is to be
noted here that the complainant can also file an online complaint
on www.consumerhelpline.gov.in

15.What is strict liability? Discuss the Exceptions to strict liability with

appropriate cases.
Earlier Answer.

16.Discuss the concept of strict liability and absolute liability.

The rule of strict liability was propounded in 1868 in Ryland vs Fletcher.

• Rylands and Fletcher lived in a neighbourhood.

• Rylands had mines in his land, while Fletcher had a mill on his land.
• Fletcher required a huge amount of energy to run the mill, so he decided
to construct a reservoir.
• To construct the reservoir, independent contractors and engineers were
appointed by Fletcher.
• No attention was paid to mine shafts while constructing the reservoir.
• When the reservoir was ready and the water was filled, the water
reached the mines of Rylands through the mine shafts, due to which
he suffered heavy losses and sued Fletcher for the same.
• Fletcher defended by stating that the negligence was by independent
contractors and engineers.
• In the judgement delivered by the House of Lords, Fletcher was held
liable for the entire loss suffered by Rylands.
Principle of no-fault liability

According to the rule, if any person brings any dangerous thing on his land for
non-natural use and that dangerous thing has the ability to escape on its own
and causes harm, such person shall be liable for it even though there was no
negligence on his part. This is known as the rule of strict liability. Such things
may be any harmful gas, water, or chemicals.

Essential of strict liability

The three essential points regarding strict liability are:

1. Some dangerous thing must have been brought on one’s land.

2. There must be non-natural use of land.
3. The dangerous thing bought must escape and cause damage.

Exception to rule of strict liability

Here are the five exceptions to the rule of strict liability.

1. Plaintiff’s own fault

The classic example would be Ponting vs Noakes. In this case, the plaintiff’s
horse intruded into the defendant’s land and consumed the leaves of some
wild tree and died after that. The defendant was not held liable as the damage
would not have occurred if the plaintiff’s horse had not intruded on the
defendant’s land. The rule of strict liability would not apply as there was no
escape.
2. Act of God

Any natural event which is not predictable, controllable or preventable,

damage caused by such event cannot be held liable for. In Nicholas vs
Marsland 1876, due to heavy rainfall defendant’s artificial lake was flooded,
due to which the plaintiff’s four bridges washed away. The plaintiff brought an
action to recover the damages. It was held that the defendant was not liable as
the accident was caused by an act of God.

3. Volenti non-fit injuria / mutual benefit

If two persons with common consent bring any non-natural thing for the
mutual benefit and such thing causes damage, either of them cannot claim
damages from each other.

4. Act of stranger

If any damage has been caused due to the act of any stranger on whom the
defendant had no control, the defendant will not be liable under this rule.

5. Statutory authority

An act done under the authority of a statute is a defence to an action for tort.

Rule of Absolute Liability

The rule of absolute liability was laid down in MC Mehta vs Union of India.

MC Mehta case

Facts of the case

•A company named Union Carbide set up a plant in Bhopal.

 • The plant manufactured pesticide and such products.
• On the night of 2nd December 1984, the plant leaked 40 tons of
dangerous gas (methyl isocyanate).
• The adjoining area around the plant became a gas chamber because of
which 3000 people died, and various others were injured.
• During the investigation, it was found that all the safety systems of the
plant were non-functional.
• The Supreme Court decided not to follow the rule of strict liability as this
would result in such industries escaping the liability for the damage
caused and lost lives.

Strict liability is a concept of the 18th century. With the passage of time and
evolving power of science, the rule of absolute liability was for the first time
applied in the case of MC Mehta vs Union of India, also known as the Oleum
Gas Leak case.

Difference Between Strict Liability and Absolute Liability

1. In strict liability, any person can be made liable, whereas, in absolute

liability, only an enterprise can be made liable (commercial objective).
2. In strict liability, the escape of a dangerous thing is necessary,
whereas, in absolute liability, an enterprise can be made responsible
even without an escape.
3. Certain exceptions are available to a person in strict liability, whereas
no defences are available in absolute liability.

17.Explain the forums created under consumer protection act 1986.

Jurisdiction of the District Forum

(1) Subject to the other provisions of this Act, the District Forum shall have
jurisdiction to entertain complaints where the value of the goods or services
and the compensation, if any, claimed [ 29 does not exceed rupees five lakhs
29 ].

(2) A complaint shall be instituted in a District Forum within the local limits of
whose jurisdiction, -

(a) the opposite party or each of the opposite parties, where there are more
than one, at the time of the institution of the complaint, actually and
voluntarily resides or [ 30 carries on business or has a branch office or 30 ]
personally works for gain; or

(b) any of the opposite parties, where there are more than one, at the time of
the institution of the complaint, actually and voluntarily resides, or [ 31 carries
on business or has a branch office 31 ] personally works for gain, provided that
in such case either the permission of the District Forum is given or the opposite
parties who do not reside or [ 32 carry on business or have a branch office 32 ]
personally work for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

Jurisdiction of the State Commission

Subject to the other provisions of this Act, the State Commission shall have
jurisdiction –

(a) to entertain -

( i ) complaints where the value of the goods or services and compensation, if

any, claimed exceeds rupees [42 five lakhs but does not exceed rupees twenty
lakhs 42]; and

(ii) appeals against the orders of any District Forum within the State; and

(b) to call for the records and pass appropriate orders in any consumer dispute
which is pending before or has been decided by any District Forum within the
State where it appears to the State Commission that such District Forum has
exercised a jurisdiction not vested in it by law, or has failed to exercise a
jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with
material irregularity.

Jurisdiction of the National Commission

Subject to the other provisions of this Act, the National Commission shall have
jurisdiction –

(a) to entertain –

( i ) complaints where the value of the goods or services and compensation, if

any, claimed exceeds rupees

twenty lakhs ; and

(ii) appeals against the orders of any State Commission; and

(b) to call for the records and pass appropriate orders in any consumer dispute
which is pending before or has been decided by any State Commission where it
appears to the National Commission that such State Commission has exercised
a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so
vested, or has acted in the exercise of its jurisdiction illegally or with material
irregularity.

18.Trace the development of law of torts in England and India.

Introduction:

The word Torts is derived from the Latin word ‘Tortum’ which means
twisted/crooked/wrong. Tort in French corresponds to the English word wrong
and the Roman expression delict. In a society when a person turns directly
from the normal course of conduct to a person who injures or causes harm to
another, he is considered to have committed a tort – a conduct that is twisted
or crooked. A person who commits such devious acts is marked as a tortfeasor.

It is different from breach of contract and trust. Tort is when the act of one
party causes some harm to the other party due to negligence, carelessness on
the part of another party. The one who sues is known as ‘plaintiff’ and the one
who is sued is known as ‘defendant’.

Origin of Tort Law in England.

Prior to 1066, the French William the Conqueror of the Norman conquest of
England, the legal system was somewhat disorganized, carried out on a more
or less case-by-case basis. After 1066, to assimilate the village laws that had
developed over two centuries, eminent judges were delegated to visit a given
area. These judges, benefiting from this information, noted and applied the
precepts they believed to be most impartial in their own court’s findings. Over
time, these cases became what are now called legal precedents when
referenced often enough. The law of tort came to India via England. The law of
tort came to India via England.
After the Norman Conquest, French became the language spoken in the
judiciary of England and thus many technical terms in English law originated
from French and tort is one of them. The term ‘tort’ is based on the concept
that there are certain rights for all in the society. The purpose of this atrocity
law is to enforce rights and duties.

The sessions during which these judges conducted trials were termed
‘assessments’ or ‘sittings’ in modern terms. The place from which a judge
makes judgments and sentences is still called ‘bench’. Once
these precedents were set, they were intended to apply equally to every
member of society, from a lord to a servant, resulting in the term common law.

Development of the Law of Torts in India

The Law of Torts is based on the principles of ‘Common Law‘ which is primarily
the English Law of Torts. The law of tort is selectively enforced in Indian courts
if it suits the circumstances of the Indian society.
In India, the term tort has existed since the pre-independence period. Tort did
not have such an important beginning under Hindu law and Muslim law
compared to English law. Most of the laws of tort in India is adopted from the
English law of Torts. However, the Indian courts before making any application
of the laws adopted from the English law of torts see whether it is compatible
with Indian culture and circumstances. Using the English law in India has thus
had a distinctive application.

In India, the origin of torts is related to Charter of 1726. Under charter 1726
the English courts were established in three presidencies i.e. Bombay, Calcutta
and Madras which were known as ‘Mayor courts’. These courts were working
under ‘Common law’ full stop in India also the common law was made
applicable but the directions were made to quotes that the common law is
made applicable. In the application of common law, in the application
of common law, the principles of equity, justice and good conscious were
being followed. Law of torts was being considered an inseparable part of the
common law. This was made applicable in India in this reference but due care
was taken that it applied as per the conditions, customs and traditions of India.
In the case of Naval Kishore vs. Rameshwar Nath And Ors. ( A.I.R. 1995
Allahabad 594) it was stated that the rules of law of torts of England should be
made applicable as per the Indian atmosphere, that is, corresponding to
traditions and Customs of it.
 19.Distinguish between Damnum sine injuria and injuria sine damnum?
Introduction:
The law of torts is a collection of all the circumstances in which court gives a
remedy by way of damages, for legally unjustified harm or injury done by one to
another person. There are three elements which need to be proved before
constituting a tort:-

1. There must be an act or omission on the part of the defendant.

2. That act or omission should be in violation of a legal right vested in the
plaintiff.
3. The wrongful act or omission thus done by the defendant is of such a
nature to give rise to a legal remedy.

Both the maxims are divided into three parts as follows:-

• Damnum/Damno means substantial harm, loss or damage with respect

to the money, health, etc.
• Injuria means an infringement of a right given by the law to the
plaintiff.
• Sine means without.

These 2 maxims fall under the category of qualified rights, & in the cases of
qualified rights there is no presumption of damages and the violation of such
rights is actionable only on the proof of damages.

S.No Damnum Sine Injuria Injuria sine Damnum

Damnum sine Injuria refers to the

Injuria Sine damnum is the legal injury
damages suffered by the plaintiff but no
1. caused to the plaintiff without any
damage is being caused to the legal
damage to the physical injury.
rights as there is no violation of it

It is the losses suffered without the

2. infringement of any legal right hence It is an infringement of a legal right
creating no cause of action. where even if no loss has been suffered
 by the plaintiff still creates an actionable
cause of action.

No compensation in the form of Compensation in the form of damages is

3.
damages is awarded by the court. awarded by the court.

This maxim is for the legal wrongs which

This maxim is for the moral wrongs which
4. are actionable if the person’s legal right
have no action in the eyes of the law.
has been violated.

The principle of this maxim is that a The principle of this maxim is that
person exercises in such a manner within whenever there is an invasion of a legal
5. reasonable limits which does not ground right there creates a cause of action and
action in tort merely because it causes the person whose right is vested is
damages to other people entitled to bring an action.

In this, the plaintiff suffers legal injury

In this, the plaintiff suffers a loss but has
6. doesn’t matter they have suffered any
suffered no legal injury.
loss on that account.

Damages without injury are not This is actionable since there is a

7.
actionable violation of a legal right.

20.Explain the plaintiff fault and act of God as general defenses with decided
cases.

Introduction
The law of torts has been evolving throughout its existence. There are certain
principles which are used to counter claims for compensation. These
counterclaims or defences are used to evict those citizens from tortious liability
who have been unfairly been implicated with wrong claims imposed on them.
These defences have been formulated from time to time to keep up with the
basis of imposition of tortious liability on a person. There are many defences to
a tort, such as necessity, Inevitable accident, Plaintiff’s wrongdoing, Volenti non
fit injuria, etc.
An Act of God is defined as a direct, sudden, insanely violent, natural, and
irresistible act of nature, one which could not by any amount of care would
have been foreseen, or if it has been foreseen, could not be avoided by any
amount of care by any individual.

• An act of God is defined as a direct, sudden, insanely violent, natural,

and irresistible act of nature, one which could not by any amount of
care have been foreseen, or if it has been foreseen, could not be
avoided by any amount of care by any individual.
• An act of God is one which has been there ever since the existence of
our planet Earth, we have been witnessing natural calamities since the
existence of mankind, these include, Earthquakes, floods, tornadoes,
wildfires, etc. In such occurrences, lives are lost, properties are
destroyed or significantly damaged when the forces of the nature
strike harshly and suddenly.
• Nature’s blows are severely dangerous and may come as a huge shock
or surprise both to the victims of the disaster and even the accused
individuals or tortfeasors.
• In many cases, the defendants are quick to claim the defence of an act
of God as a defence to those cases. To afford the defence of vis major,
there must be an immediate or proximate cause (Causa causans) and
not just a cause had it not existed might never have led to the damage
caused or complained of (causa sine quo non).
• Before an act of God may be granted as a defence the defendant has
to prove himself to have done everything that a reasonable and a
prudent person could do in such a scenario.

Conclusion
To sum it all up, an inevitable accident is an event which happens not only
without the concurrence of the will of a man but in spite of all the efforts that a
man may put on his part to prevent it from happening i.e. an accident which is
physically unavoidable and can’t be prevented by human skill or foresight.
Whereas an act of God is an accident which is caused by the operations of the
extraordinary natural forces and its effects include total destruction or loss at a
very high scale as these are unpredictable and cannot be controlled. But with
the development of science, it might become possible one day to predict an act
which may be caused due to the actions of natural forces and perhaps, and even
controlling such natural forces up to a certain extent.
21.What is vicarious liability? Explain with decided cases.

Vicarious Liability

Vicarious liability is a liability where the master is liable for the tort of his
servant, principal for his agent, partner for another partner and an employer
for an employee.The legal maxim Qui Facit per alium Facit per se also applies
to the concept of vicarious liability, which means he who acts for another, acts
for himself.

Four important kinds of vicarious liability are:

• Principal-Agent Relationship.

• Partners.

• Master and Servant.

• Employer and Independent Contractor.

Principal-Agent Relationship

An agent is a person who acts on behalf of the principal. Therefore, if an agent

does any wrongful act in the course of his employment, then the master will be
held liable for the acts committed by the agent.

Suppose the agent performs some activity in the absence of the principal,
which favours the principal, even though the principal does not know this act.
In that case, he will still be held responsible as the agent acted for the
principal’s benefit.
Partners

All the partners are liable to the same extent as the guilty partner. In Hamlyn
vs Houston, one of the two partners bribed the plaintiff’s clerk, persuading him
to provide confidential information about his employer’s firm. The court
decided that both partners were responsible for the tort committed by only
one of them.

Master and Servant

Master will be held liable for the tort or wrongful act committed by his servant
during the course of employment. Obviously, the servant will also be held
liable.

A master is liable not only for the acts that the servant has committed but also
for the acts done by him that are not explicitly authorised.

Principal of Respondent Superior will be applicable here, which says, let the
principal be liable.

The master is liable even though the servant acted against the expressed
instructions.

Employer and Independent Contractor

Ordinarily, an employer is not liable for the tort committed by an independent

contractor. But there are certain conditions where even the employer will be
held liable.

• The employer is liable only if he has committed a tort.

 • When the employer authorises him to commit a tort.
• In torts of strict liability.
• Negligence of an independent contractor.

Vicarious Liability of State

Even the state has certain liabilities, and now let us study the position of
vicarious liability in India and England.

Position in England

At common law, a crown could not be sued in tort, but as per the Crown
Proceedings Act, 1947, even the crown is liable for the torts committed by its
servants.

Position in India

In India, the state can be held liable under vicarious liability, and it could claim
immunity only if the act committed is a sovereign function.

Conclusion

By reading this law note, we can conclude that vicarious liability is a liability
put on the principal for the act of his agent in the course of employment
because an agent is a person who works on behalf of the principal.

22.Difference between servant and a independent contractor.

 BASIS FOR
AGENT SERVANT
COMPARISON

Meaning An agent is a person appointed A servant is the one

by the Principal to act on his employed to do work at
behalf. that person's home as a
gardener or cleaner, etc.

Works for Principal Master

Compensation Commission Salary or Wages

Legal An agent can enter into contracts A servant cannot bring the
Relationship on behalf of his/her principal. master and the third party
Thus. he/she can bring the into a legal relationship.
principal into a legal relationship
with a third party.

Direct Control An agent comes under direct A servant comes under

and Supervision supervision and control of the direct supervision and
Principal. control of the Master.

Work An agent can work for many Servants can work for only
principals at the same time. one master at a time.

Acts A principal is liable for all the acts A master is liable for all
of the agent performed within the acts of the servant
the scope of his authority. performed in the course
of his employment.

Duty Assignment An agent can never act as a A servant can be assigned

servant. the duties of the agent
and act like one in certain
cases.
23.Write a note on false imprisonment.

What is false imprisonment?

Wrongful imprisonment occurs when a person (who does not have the legal
right or justification) is intentionally restricts another person from exercising his
freedom. When someone intentionally restricts another person’s freedom, he
can be found liable for false imprisonment in civil and criminal courts. The
factors which constitute false imprisonment are:

1. Probable cause of imprisonment.

2. Plaintiff’s knowledge for imprisonment.
3. Intent of defendant during imprisonment and confinement period
matters.
This is applicable to both private as well as government detention. Under
criminal law, whether the restraint is total or partial, the same is actionable.
When the restraint is total and the person is prevented from going out of certain
circumscribed limits, the offence is that of ‘wrongful confinement’ as defined
in Section 340 of IPC. Under this, the Indian Penal Code punishes wrongful
imprisonment. Section 339 to 348. When it comes to the police, proving false
imprisonment is sufficient to obtain the writ of Habeas Corpus. It is not
mandatory that the person should be put behind bars, but he should be confined
in an area from which there are no possible ways of escape except the person’s
will who has confined him. Depending on the laws of a particular jurisdiction,
wrongful imprisonment can also be a crime, as well as intentional tort.

Elements of false imprisonment

All states have laws regarding false imprisonment designed for protecting
people from being confined against their will. The laws of each state vary, but in
general, certain constituents of false imprisonment must be present to prove a
legal claim. To prove a false imprisonment claim in a civil suit, the following
elements must be present:

Wilful detention

False imprisonment or restraint must be intentional or wilful. Accidentally

closing the door when someone is on the other side is not a wrongful
confinement or false imprisonment. Wilful detention applies to intentional
restraint in any form, including physically restraining a person from exiting,
physically locking him in a building, room, or from other places, and restraining
him from leaving through force or intimidation.

The intention factor

Generally, the tort of false imprisonment must be intentional. A person is not

liable for false imprisonment unless his or her act is done for the purpose of
imposing a confinement or with knowledge that such confinement, to a
substantial certainty will result from it. for this tort, Malice is irrelevant . It is
ordinarily upon the judges to determine from the evidence, as a question of fact,
the intention of the defendant in an action for false imprisonment.

Knowledge of the plaintiff

The detention of another person would have been wrong. There is no

requirement that the plaintiff claiming another person for false imprisonment
was aware of his restraint on his freedom at the time of his confinement.

In the case of Herring v Boyle, it has been held that such knowledge is essential
, in that case a schoolmaster wrongfully refused to permit a schoolboy to go with
his mother unless the mother paid an amount alleged to be due to him , the
conversation between the mother and schoolmaster was made in the absence
of the boy and he was not cognizant of the restraint. It was held that the refusal
to the mother in the boy’s absence, and without his being cognizant of the
restraint, could not amount to false imprisonment.

24.Write a note on restrictive trade practice.

A restrictive trade practice is defined under Section 2(1)(nnn) of the Consumer
Protection Act, 1986. The section covers all the price related deceit that the
traders may indulge in to maximise their profits.

Restrictive trade practices are targeted at the consumers who are burdened
with restriction and unjustified costs through the practices of the trader. The
trader manipulates the price or the conditions of delivery of the product which
results in restrictive trade practice. This affects the supply of goods and services
in the market and includes:
– A likely or definite rise in the price of a commodity due to the delay of the
trader to provide the good or service.

– A compulsion to purchase, hire or avail any good or service in order to obtain

any other good or service.

Illustrations of Restrictive Trade Practices:

• A trader accumulates his stock of food grains in order to increase the

price of the grains in the market so that he can sell it at a higher price.
• In order to buy a television from trader X, one needs to buy a table first.

Case Laws

Amongst a plethora of cases, certain significant cases of Restrictive Trade

Practices include Sikka Gas Agency vs Satyendra Prasad[4] and Dlf Limited vs
Mridul Estate (Pvt.) Ltd[5]

25.Who is consumer? Explain the objectives of consumer protection act.

Introduction
Consumer protection is the practice of safeguarding buyers of goods and
services against unfair practices in the market. It refers to the steps adopted
for the protection of consumers from corrupt and unscrupulous malpractices
by the sellers, manufacturers, service providers, etc. and to provide remedies
in case their rights as a consumer have been violated.

Meaning of the word ‘consumer’

A consumer is an individual or group of individuals who purchase goods and
services for their own personal use and not for the purpose of manufacturing
or resale. Section 2(7) of the Consumer Protection Act, 2019 defines a
consumer as any person who buys goods or services in exchange for
consideration and utilises such goods and services for personal use and for the
purpose of resale or commercial use. In the explanation of the definition of
consumer, it has been distinctly stated that the term ‘buys any goods’ and
‘hires or avails any services’ also includes all online transactions conducted
through electronic means or direct selling or teleshopping or multi-level
marketing.

Objective of the Consumer Protection Act.

The main objective of the Act is to protect the interests of the consumers and
to establish a stable and strong mechanism for the settlement of consumer
disputes. The Act aims to:

1. Protect against the marketing of products that are hazardous to life

and property.
2. Inform about the quality, potency, quantity, standard, purity, and
price of goods to safeguard the consumers against unfair trade
practices.
3. Establish Consumer Protection Councils for protecting the rights and
interests of the consumers.
4. Assure, wherever possible, access to an authority of goods at
competitive prices.
5. Seek redressal against unfair trade practices or unscrupulous
exploitation of consumers.
6. Protect the consumers by appointing authorities for timely and
sufficient administration and settlement of consumers’ disputes.
7. Lay down the penalties for offences committed under the Act.
8. Hear and ensure that consumers’ welfare will receive due
consideration at appropriate forums in case any problem or dispute
arises.
9. Provide consumer education, so that the consumers are able to be
aware of their rights.
10.Provide speedy and effective disposal of consumer complaints
through alternate dispute resolution mechanisms.

26.Explain the composition, appointment and jurisdiction of national

commission.
Introduction:
The National Commission was instituted in 1988. It is headed by a sitting or
retired Judge of the Supreme Court of India. The present President of the
commission is Justice R.K. Agrawal who is a former Judge of the Supreme Court
of India. According to Sec-21 of the act, the pecuniary jurisdiction of a National
Commission for entertaining complaints or issues where the value of goods or
services and the value of the compensation claimed is more than Rs. 1 crore.

The National Commission has been constituted with various powers such as:

• It has the powers of administrative control over all the State

Commissions. It can call all the State Commissions or any one of them
for periodical returns regarding the institution, disposal and pendency
of cases.
• It can adopt a uniform procedure in the hearing of the matters.
• It can provide a speedy grant of copies of documents to the parties.
• It also has a general power of overseeing the functioning of the State
Commissions and the District Forums.
• It has the power of providing prior service of the copies of the
documents produced by one party to the opposite parties.
In addition to the President of the commission, it shall consist of 4 other
members, out of which at least one shall be a woman. All of these members
shall fulfil the following conditions to be able to qualify as a member in the
National Commission:

1. Their age should not be less than 35 years of age.

2. They shall be possessing a bachelors degree from a recognized
university.
3. They shall be a person of ability, integrity and standing and have
adequate knowledge and experience regarding the field of a consumer.
Every member of the commission shall hold office for a term of 5 years or up to
the age of 70 years whichever is earlier.

27.For the purpose of promoting the sale, the tradesman adopts unfair trade
practices? What are those trade practices?
Introduction:
An unfair trade practice means a trade practice, which, for the purpose of
promoting any sale, use or supply of any goods or services, adopts unfair
method, or unfair or deceptive practice.

Unfair practices may be categorized as under:

1.False Representation

The practice of making any oral nor written statement or representation

which:

• Falsely suggests that the goods are of a particular standard quality,

quantity, grade, composition, style or model;
• Falsely suggests that the services are of a particular standard, quantity
or grade;
• Falsely suggests any re-built, second-hand renovated, reconditioned
or old goods as new goods;
• Represents that the goods or services have sponsorship, approval,
performance, characteristics, accessories, uses or benefits which they do
not have;
• Represents that the seller or the supplier has a sponsorship or approval
or affiliation which he does not have;
• Makes a false or misleading representation concerning the need for, or
the usefulness of, any goods or services;
• Gives any warranty or guarantee of the performance, efficacy or length
of life of the goods, that is not based on an adequate or proper test;
• Makes to the public a representation in the form that purports to be-
1. a warranty or guarantee of the goods or services,
2. a promise to replace, maintain or repair the goods until it has
achieved a specified result,

if such representation is materially misleading or there is no reasonable

prospect that such warranty, guarantee or promise will be fulfilled

• Materially misleads about the prices at which such goods or services are
available in the market; or
• Gives false or misleading facts disparaging the goods, services or trade of
another person.

2.False Offer of Bargain Price-

Where an advertisement is published in a newspaper or otherwise, whereby
goods or services are offered at a bargain price when in fact there is no
intention that the same may be offered at that price, for a reasonable period
or reasonable quantity, it shall amount to an unfair trade practice.

The ‘bargain price’, for this purpose means-

1. the price stated in the advertisement in such manner as suggests that it

is lesser than the ordinary price, or
2. the price which any person coming across the advertisement would
believe to be better than the price at which such goods are ordinarily
sold.

Free Gifts Offer and Prize Schemes

The unfair trade practices under this category are:

• Offering any gifts, prizes or other items along with the goods when the
real intention is different, or
• Creating impression that something is being offered free along with the
goods, when in fact the price is wholly or partly covered by the price of
the article sold, or
• Offering some prizes to the buyers by the conduct of any contest, lottery
or game of chance or skill, with real intention to promote sales or
business.

4.Non -Compliance of Prescribed Standards

Any sale or supply of goods, for use by consumers, knowing or having reason
to believe that the goods do not comply with the standards prescribed by
some competent authority, in relation to their performance, composition,
contents, design, construction, finishing or packing, as are necessary to prevent
or reduce the risk of injury to the person using such goods, shall amount to an
unfair trade practice.

5.Hoarding, Destruction, Etc.

Any practice that permits the hoarding or destruction of goods, or refusal to

sell the goods or provide any services, with an intention to raise the cost of
those or other similar goods or services, shall be an unfair trade practice.

28.Write a note on Res Ipsa loquitur.

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

In tort law, a principle that allows plaintiffs to meet their burden of proof with
what is, in effect, circumstantial evidence. The plaintiff can create a rebuttable
presumption of negligence by the defendant by proving that the harm would
not ordinarily have occurred without negligence, that the object that caused the
harm was under the defendant’s control, and that there are no other plausible
explanations. It is a Prima facie case.

Case law regarding Res ipsa loquitur

Roe v. Minister of Health

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

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

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

Essentials to prove res ipsa loquitur –

1.The incident was of a type that does not generally happen without negligence

2.It was caused by an instrumentality solely in defendant’s control

3.The plaintiff did not contribute to the cause

BY

ANIL KUMAR K T

LLB COACH