LAW OF TORTS AND CONSUMER LAW

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MODEL ANSWER PAPER

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Q.No.1 Define the term “Tort” and distinguish it from crime.

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Synopsis

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• Introduction
Definition

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•
• Meaning

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• Differencess Between Tort And Crime
• Coclusion

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Introduction

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In common sense the Law of Torts is the branch of law controlling the behavior of the

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people in the society. It is a growing branch of Law and it’s main aim is to define individual’s
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rights and duties in the light of prevalent standards of reasonable conduct and public
convenience. Torts is an infringement of a private common law right in rem.
AN

Meaning
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The term “Tort” has been derived from latin term “Tortum” which means “to twist” it
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means which is not straight and correct. The term has been used in French as “wrong”, .now it is
setteled that tort is a civil wrong independent of contract.Liability in tort arises from breach of
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duty primarily fixed by law which is towards others generally. The breach of this duty
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redressible by an action for unliquidated damages by way of compensations.

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Definition
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1.Salmond: It is a civil wrong for which the remedy is a common law action for unliquidated
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damages and which is not exclusively the breach of a contract or the breach of a trust or other
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merely equitable obligation.

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2. Winfield: Tortious liability arises from the breach of a duty primarily fixed by law. This duty
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is towards persons generally and its breach is redressible by an action for unliquidated damages.
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 3.Frazer:- It is an infringement of a right in rem of a private individual giving a right to

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compensation at the suit of the injured party.

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Tort is a civil wrong

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This civil wrong is other than a mere breach of contract or breach of trust

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This wrong is redressible by an action for unliquidated damages.

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DIFFERENCES BETWEEN TORTS AND CRIME

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TORT CRIME

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1. A tort is a species of civil wrong. It Crimes are those which results into
gives rise to civil proceedings. punishment of criminal.

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GA
2. In a tort, the plaintiff is the injured In a crime, the victim is an individual. The
party. criminal proceedings against the wrong-doer
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are instituted by the state.

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3. A tort is violation of the private rights A crime is a breach of public rights and
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of an individual. duties which affect the whole community.

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4. The wrong-doer is liable to pay The wrong-doer is generally punished.

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compensation to the injured party. Sometimes the fine is imposed. But that fine
amount is credited into the state account.
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5. The purpose of awarding The purpose of the criminal law is to protect

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compensation to the injured party is to the society by preventing and deterring the
make good the loss suffered by him. offender from committing further offences.
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6. The nature of punishment is lighter, The nature of punishment is heavy and

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that too in the shape of awarding serious. In the shape of imprisonment.

damages.
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7. In tort, the intention is not important. In crime, mens rea(ill-intention) plays an

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important factor in determining the criminal

 liability.

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8. Burden of proof lies on the Burden of proof lies on the state. The injured

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complainant/injured. becomes a witness only.

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9. Natural principles of justice ,good Strict rules of procedure and principles or

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conscience, equality, etc, are followed followed in fixing the liability of the

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in fixing the wrong-doer’s liability. criminal.

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10. Most of the Law of Torts is judge- All the crimes are defined and codified

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made law.it is not codified. .Criminal Law is codified.

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CONCLUSION

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Thus here I concluded that by seeing both the definition the definition of Winfield seems
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to be accurate, convincing and appropriate than of Salmond. In Salmond definition , the term
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civil wrong is not correctly indicated.And also while we are discussing the differences in
between torts and crime there are lots of differences.
,B
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Q.No.2 Discuss “Vicarious Liability” with help of decided cases.

SYNOPSIS
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• Introduction
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Meaning and Definition

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•
• Modes of vicarious liability
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• Vicarious liability is based on two important maxims

• Master And Servant relationship with reference cases.
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• Conclusion.

Introduction
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A general rule is that ‘a man is liable only for his own act but there are certain
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circumstances in which a person is liable for the wrong committed by others. This is called
‘Vicarious Liability’
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 Meaning.

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So, the term vicarious liability denotes the Liability which “A” may incur to “C” for damage

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caused to “C” by the negligence or other torts of “B”.

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Modes of vicarious liability

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• Liability by ratification. Ex. Contracts, agreements.

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• Liability arising out of special relationship

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• Liability for abetment.

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Law of tort deal with vicarious liability in Liability arising out of special relationship. The

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relationship are as follows

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• Master and servant

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• Owner and Independent contractor
• Principal and agent GA
• Company and its director
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• Firm and its partners

• Guardian and ward or father and child
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Definition
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Salmond: In general a person is responsible for his own acts, but there are exceptional
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cases in which the law imposes on him vicarious responsibility for the acts of another. However
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blameless himself.
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Vicarious liability is based on two important maxims:

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1. Qui facit per alium facit per se:-

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2. Respondent superior
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1. Qui facit per alium facit per se:-

It means ‘that he who acts through another is deemed in law as doing it himself’. The masters
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responsibility for the servant’s act had also its origin in this principle. The reason is that a person
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who puts another in his place to do a class of acts in his absence.

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• The master leaves the servant to determine, according to the circumstances that arise,
when an act of that class of work is to be done.
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• Trust him for the manner in which it is done

 • Consequently the master is answerable for the wrong of the person so entrusted

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• For either in the manner of doing such an act or in doing such an act under circumstances

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in which it ought not to have been done

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2. Respondent superior:-

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Another Maxim is respondent superior ie the superior must be made responsible or let the

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principal be liable. In such cases not only he who obeys but also he who command becomes

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equally liable. This rule has its origin in the legal presumption that all acts done by the servant in

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and about his master’s business are done by his master’s express or implied authority and are in
truth, the act of the master.

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The master is answerable for every such wrong of the servant as is committed in the course of his

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service, though no express command or privity is proved.

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Master And Servant Relationship.
GA
In order that the master may be held liable for the tort of his servant following conditions
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should be fulfilled.
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• The person committing the tort must be servant

The servant committed the tort while acting in the course of employment of his master
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•
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• The act must be a wrongful act authorized by the master or a wrongful and
unauthorized mode of doing some act authorized by master.
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Since the master to be liable for two things he must know:

1. who is a servant?
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EG

2. What is the course of employment?

LL

1. who is a servant?
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A servant may be defined as any person employed by another to do work for him on the
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terms that he is to be subject to the control and directions of his employer in respect of the
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manner in which his work is to be done.

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A servant is thus an agent who works under the supervision and direction of his employer,
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engaged to obey his employer’s order from time to time.

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2. The course of employment:-

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A servant is said to be acting in the course of employment if,

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• The wrongful act has been authorized by the master.

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• The mode in which the authorized act has been done is wrongful or unauthorized.

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Case Law

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Rickett’s Case

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In this case the driver of the omnibus asked the conductor to drive the omni-bus and turn
it round to make it face in the right direction for the next journey. But in doing so an accident

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took place and severe damages also occurred.

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Orders:-It was held that master is liable because the driver was negligent in the performance of
the master’s work.
GA
AN

Maharastra State V/s Kanchan Mala Vijay Singh [AIR 1995 sc 2499]
,B

In this case the Hon’ble Supreme court has explained the meaning of “in course of
Employment”. The court stated that the law is well settled that the master is vicariously liable
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for the acts of his servants acting in the course of employment. The test is whether the acts was
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done on the owner’s business or that it was proved to have been impliedly authorized by the
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owner.
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CONCLUSION :
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It can be concluded that under the law of tort the master is liable for the wrongful acts
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committed by his servant under the course of employment.

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Q.No.3 Discuss the concept of Strict Liability and Absolute Liability.

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Synopsis.
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Introduction.
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Concept of strict liability.

Exceptions o strict liability.
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Concept of Absolute liability.

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Conclusion.
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Introduction.

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The basic principal of Law that is Enjoy your own property in such a manner as not to

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injure that of another person.But there are chances of causing harm and injury to others.If any

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person took all appropriate steps to prevent such mis happenings then also any harm caused to

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the plaintiff he is held liable.the strict liability principle is impose upon him even though there is
no fault upon him.

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The principle of strict liability evolved in the case of Rylands v Fletcher. In the year

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1868, the principle of strict liability states that any person who keeps hazardous substances on

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his premises will be held responsible if such substances escape the premises and causes any

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damage. Going into the facts of the case, F had a mill on his land, and to power the mill, F built a
reservoir on his land. Due to some accident, the water from the reservoir flooded the coal mines

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owned by R. Subsequently, R filed a suit against F. The Court held that the defendant built the
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reservoir at his risk, and in course of it, if any accident happens then the defendant will be liable
for the accident and escape of the material.
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Rylands-v.Fletcher- the principle laid in this case, it can be said that if a person brings on
his land and keeps some dangerous thing, and such a thing is likely to cause some damage if it
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escapes then such person will be answerable for the damaged caused. The person from whose
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property such substance escaped will be held accountable even when he hasn’t been negligent in
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keeping the substance in his premises. The liability is imposed on him not because there is any
negligence on his part, but the substance kept on his premises is hazardous and dangerous. Based
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EG

on this judicial pronouncement, the concept of strict liability came into being. There are some
essential conditions which should be fulfilled to categorize a liability under the head of strict
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liability.
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Essentials of Strict Liability.

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Dangerous Substances:
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The defendant will be held strictly liable only if a “dangerous” substances escapes from
his premises. For the purpose of imposing strict liability, a dangerous substance can be defined
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 as any substance which will cause some mischief or harm if it escapes. Things like explosives,

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toxic gasses, electricity, etc. can be termed as dangerous things.

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Strict-Liability-What-To-Know-About-ItEscape:

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One more essential condition to make the defendant strictly liable is that the material

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should escape from the premises and shouldn’t be within the reach of the defendant after its
escape. For instance, the defendant has some poisonous plant on his property. Leaves from the

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plant enter the property of the plaintiff and is eaten by his cattle, who as a result die. The

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defendant will be liable for the loss. But on the other hand, if the cattle belonging to the plaintiff

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enter the premises of the defendant and eats the poisonous leaves and die, the defendant would

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not be liable. In the judicial pronouncement of Reads v. Lyons & Co it was held that if there is
no escape, the defendant cannot be held liable.

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Non-natural Use: GA
To constitute a strict liability, there should be a non-natural use of the land. In the case of
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Rylands v. Fletcher, the water collected in the reservoir was considered to be a non-natural use of
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the land. Storage of water for domestic use is considered to be natural use. But storing water for
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the purpose of energizing a mill was considered non-natural by the Court. When the term “non-
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natural” is to be considered, it should be kept in mind that there must be some special use which
increases the danger to others. Supply of cooking gas through the pipeline, electric wiring in a
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house, etc. is considered to be the natural use of land. For instance, if the defendant lights up a
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fire in his fireplace and a spark escapes and causes a fire, the defendant will not be held liable as
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it was a natural use of the land.

LL

Exception to the Rule of Strict Liability

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There are certain exceptions to the rule of strict liability, they are:
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Plaintiff’s Fault:
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If the plaintiff is at fault and any damage is caused, the defendant wouldn’t be held
liable, as the plaintiff himself came in contact with the dangerous thing.
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 In the judicial pronouncement of Ponting v Noakes, the plaintiff’s horse died after it entered the

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property of the defendant and ate some poisonous leaves. The Court held that it was a wrongful

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intrusion, and the defendant was not to be held strictly liable for such loss.

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Act of God:

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The phrase “act of God” can be defined as an event which is beyond the control of any
human agency. Such acts happen exclusively due to natural reasons and cannot be prevented

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even while exercising caution and foresight. The defendant wouldn’t be liable for the loss if the

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dangerous substance escaped because of some unforeseen and natural event which couldn’t have

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been controlled in any manner.

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Act of the Third Party:

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The rule also doesn’t apply when the damage is caused due to the act of a third party.
GA
The third party means that the person is neither the servant of the defendant, nor the defendant
has any contract with them or control over their work. But where the acts of the third party can
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be foreseen, the defendant must take due care. Otherwise, he will be held responsible.
,B
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For instance, in the case of Box v Jubb, where the reservoir of the defendant overflowed
because a third party emptied his drain through the defendant’s reservoir, the Court held that the
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defendant wouldn’t be liable.

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Consent of the Plaintiff:

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LL

This exception follows the principle of violenti non fit injuria. For instance, if A and B
are neighbors, and they share the same water source which is situated on the land of A, and if the
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water escapes and causes damage to B, he can’t claim damages, as A wouldn’t be liable for the
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damage.
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Absolute Liability
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The rule of absolute liability, in simple words, can be defined as the rule of strict liability
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minus the exceptions. In India, the rule of absolute liability evolved in the case of MC Mehta v
 Union of India. This is one of the most landmark judgment which relates to the concept of

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absolute liability.

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The facts of the case are that some oleum gas leaked in a particular area in Delhi from

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industry. Due to the leakage, many people were affected. The Apex Court then evolved the rule

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of absolute liability on the rule of strict liability and stated that the defendant would be liable for

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the damage caused without considering the exceptions to the strict liability rule.

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According to the rule of absolute liability, if any person is engaged in an inherently

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dangerous or hazardous activity, and if any harm is caused to any person due to any accident

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which occurred during carrying out such inherently dangerous and hazardous activity, then the

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person who is carrying out such activity will be held absolutely liable. The exception to the strict
liability rule also wouldn’t be considered. The rule laid down in the case of M.C Mehta v UOI

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was also followed by the Supreme Court while deciding the case of Bhopal Gas Tragedy case.
GA
To ensure that victims of such accidents get quick relief through insurance, the Indian
Legislature passed the Public Liability Insurance Act in the year 1991.
AN

Conclusion.
,B
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The rule of strict liability and absolute liability can be seen as exceptions. A person is
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made liable only when he is at fault. But the principle governing these two rules is that a person
can be made liable even without his fault. This is known as the principle of “no fault liability.”
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Under these rules, the liable person may not have done the act, but he’ll still be responsible for
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the damage caused due to the acts. In the case of strict liability, there are some exceptions where
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the defendant wouldn’t be made liable. But in the case of absolute liability, no exceptions are
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provided to the defendant. The defendant will be made liable under the strict liability rule no
matter what.
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Q.No.4 Define ‘Assault’. Distinguish between ‘Assault’ and ‘Battery’.

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Synopsis
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Introduction.
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Definition of Assault and Battery

Difference between Assault and Battery.
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Conclusion.
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 Introduction.

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An Assault or Battery is committed when one person 1) tries to or does physically strike

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another, or 2) acts in a threatening manner to put another in fear of immediate harm. It is an

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illegal interference to a person. Assault is a tort consisting of an act of the defendant which

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causes to the plaintiff reasonable fear of the infliction of battery on him by the defendant. The

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intention as well as the act makes an assault.

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Definition of Assault.

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According to Arnold C.J, an Assault is “any gesture calculated to excite in the party

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threatened a reasonable apprehension that the party threatening intends immediately to offer

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violence, or , in the language of the Indian penal Code “Is about to use criminal force” to the
person threatened, constitute, if coupled with present ability to carry such intention execution, an

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assault in Law.
Essentials of Assault:-
GA
I. It is an attempt or threat to do a corporal hurt to another.
AN

II. The intention as well as the act makes an Assault.

,B

III. It causese reasonable apprehension to the person threatened that the party threatening
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intends immediately offer violence.

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IV. The person threatening must create the feeling to the person threatened that he is about to
use criminal force.
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V. The person threatening must have the ability to carry such intention in execution.
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Ex: a) Threatening any person with loaded pistol or with a knife.

EG

b) Showing fist with threatening manner.

LL

Battery.
The actual stricking of another person or touching him a rude, angry, revengeful or
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insolvent manner. Battery is a blow or a menacing touching of a person or his clothes or anything
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he is carrying or holding.
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Essentials of Battery.
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I. It is an intentional or direct application of any physical force on another.

II. Battery may include an assault.
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III. There should be use of force.

 IV. The same should be without any lawful justification.

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V. It can result in physical injury or personal discomfort.

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Ex: Use os a stick or throwing water on man.

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Spitting in a man’s face.

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Difference between Assault and Battery.

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Assault Battery

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There is no physical contract in an assault. Physical contact is necessary in battery.

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It is an attempt to commit a criminal force. An attempt + applied force = completed act of
battery.

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It is in initial stage. GA
It is completion of stage.
AN

Every assault may not include battery. But every battery must always include assault.
,B

Assault is an infringement of battery. Battery is an accomplished assault.

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An assault is an overt act indicating an A battery is something more in it an intentional

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immediate act to commit a battery coupled application of force to the person of another
with the capacity of carrying out the intention without lawful justification is necessary.
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into effect.
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EG

In order to constitute an assault, it is also No such belief is needed in battery. On the

necessary that the person so assaulted must on other hand the application of even the slightest
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reasonable grounds, believe that the person amount of force is actionable. Even a slight
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assaulting has the ability to apply the force touch to a person is sufficient.
attempted by him.
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Throwing of water upon a person is an assault. As soon as the water falls on the person, it
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becomes battery.
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 Conclusion:

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Generally a layman presumes that as soon as the defendant beats the plaintiff it is an

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assault. Assault and battery is the combination of two violent crimes: assault (the threat of

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violence) and battery (crime) (physical violence).

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Q.No.5 Define Nuisance. Distinguish between public and private nuisance.

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Synopsis

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Introduction.

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Meaning and Definition.

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Differences between public and private nuisance.
Conclusion

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Introduction
GA
AN

Nuisance as a tort means an unlawful interference with a person’s use or enjoyment of land
.Acts interfering with comfort, health or safety .The interference may be any way, e.g., noise,
,B

vibrations, heat, smoke, smell, fumes, water, gas, electricity, excavation or disease producing
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germs.
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Meaning of Nuisance.
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The word Nuisance is derived from the French word “nutre” and “latin” term “nocere”
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which means ‘ to hurt or to annoy”. Nuisance is commonly a continuing wrong that is to say it
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commonly consists in the establishment or maintenance of some state of things which

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continuously or repeatedly caused the escape of obnoxious things on the plaintiff’s land.
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Definition of Nuisance.
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Winfield: a tort of nuisance means an unlawful interference with a person’s use or enjoyment of
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land or some right over, or in connection with it.

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Salmond: The wrong of nuisance consists in causing or allowing without lawful justification the
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escape of any deleterious thing from his land or from elsewhere into land in possession of the
 plaintiff,. ex. Water, smoke, smell, fumes, gases, noise, vibrations, electricity, disease, germs,

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animals etc….

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Kinds of Nuisance: There are 2 kinds

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1. Pubic Nuisance

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2. Private Nuisance

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1. Pubic Nuisance:-

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A public or common Nuisance is one which materially affects the reasonable comfort and

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convenience of public in general or a class of people.

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Public nuisance includes like carrying on an offensive trade , selling food unfit for

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consumption, obstructing public highways and throwing fire works about in the street.
GA
Public Nuisance is interference with the members of the public in the exercise of their
common rights on the highways.
AN

A public Nuisance is a crime

,B
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Sec 268 of IPC: defines public nuisance as an act of illegal omission which causes any
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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
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annoyance to persons who may have occasion to use any public right.
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2. PRIVATE NUISANCE:-
EG
LL

It may be defined as unlawful interference with a person’s use or enjoyment of land, or of

some right over or in connection with it.
CO

Elements of private Nuisance.

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EE

1.unreasonable or unlawful interference

AM

2.Such interference is with the use or enjoyment of land or some right over, or in
connection with the land and
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 3. damage.

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Difference between Public Nuisance and Private Nuisance.

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Public Nuisance Private Nuisance

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Public nuisance is a crime . Private nuisance is a civil wrong.

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It is an infringement of public right. It is an infringement of a right of private

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person.

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It is interference with the rights of public in Private nuisance is interference with the rights
general. of a particular person.

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The lapse of time cannot legalize public In due course of time under certain

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nuisance. cercumstances the nuisance may be legalized
GA
under the law of prescription.
AN

In case of public nuisance a person may bring In case of private nuisance the injured person
,B

an action if special damage or injury is caused may bring an action.

to the plaintiff.
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LA

As it is a State’s duty the responsibility lies The plaintiff must prove the interference with
upon the State to p-rove the interference of his enjoyment of land.
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defendant.
E
EG
LL

Conclusion
CO

It can be concluded that nuisance, whether public or private both are a wrongful act
making another person inconvenience in enjoyment of the property. The aggrieved party has
N
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remedies to control the nuisance.

AM

Q.No.6 What is defamation? Discuss briefly the various defences available in an action for
defemation.
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Synopsis
 Introduction.

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Definition.

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Essential of defamation.

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Defences For Defamation.

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Conclusion.

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Introduction.

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A man’s reputation is his property, more valuable than other property. Every man has a right to

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have his reputation preserved inviolate. It is right in rem means a right against all the world.

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Definition:

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1. Winfield:- Defamation is the publication of a statement which tends to lower a person in

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the estimation of right thinking members of society generally or which tends to make

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them shun or avoid that person.
GA
Defamation is the publication concerning a person of a statement in words, writing by
AN

pictures or significant gestures which exposes such person to feeling of hatered, redicule
or contempt whereby he suffers injury to his reputation.
,B

Thus defamation consists in using any language or representation oral or written

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tending to bring the person of whom it is published into hatred, redicule, or disgrace or to
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injure him in respect of his vocation.

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Essential of defamation:
E
EG

• The statement must be defamatory

• The statement must refer to the plaintiff &
LL

• The statement must be published.

CO

Defences For Defamation.

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EE

The important defences available for the defendant in a suit of defamation are:
1. Justification by truth.
AM

Truth is a complete defence for a defamatory suit in a civil action. If the defendant
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is enabled to prove the truthness in his in his defamatory statement, the plaintiff is not
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entitled to get the damages. If the defamatory statement proves to be true , the purpose or
 motive of the defendant is irrelevant. The burden of proof lies upon the defendant to

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show the statement as whole and truthful.

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2. Fair and bonafide comment.

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A fair comment is a comment hich is either true or which, if false expresses the

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real opinion of its author, such opinion having been formed with a reasonable degree of

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care and on reasonable grounds. Whatever is fair and can be reasonable said of the works
is not actionable unless it appears that, unless it appears that under the pretext of

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criticizing the works, the defendant takes an opportunity of attacking the character of the

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author, then it will be a libel.

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3. Privilege.

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Privilege means a peculiar advantage; a personal benefit or favour, a private or
personal favour enjoyed. A privilege is a particular and peculiar benefit or advantage

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enjoyed by a person, company, or class beyond the common advantage of other citizens.
GA
It also gives the meaning that it is a legal claim to do; legal power; authority; immunity
granted by authority; the investure with special or peculiar rights.
AN

In the law of defamation, privilege is a good defence. The object of this defence is
,B

the common convenience and welfare of society or general interest of society.

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4. Consent.
LA

Where the defendant had communicated or published certain defamatory matter

with the consent of the plaintiff, or the plaintiff himself invited the defendant to repeat the
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defamatory ords before the witnesses, the defendant can plead it as defence.
E

5. Apology.
EG

Where the defendant had communicated or published certain defamatory matter

LL

against the plaintiff and later he came to know that he did a mistake. The defendant meets
the plaintiff and requests to excuse him and submits his apology to the plaintiff. If the
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plaintiff agrees his apology, the dispute is settled amicably beteen them on a simple
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apology
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Conclusion
AM

It can be concluded that no person should not speak or defame any person in the society
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because the statutes or reputation of the person will be the important and precious property of
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any person in the society without which he cannot exist.

 Q.No.7 Define the term ‘Consumer’. State the rights and remedies available for the

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consumers under Consumer Protection Act, 1986.

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Synopsis:-

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Introduction.
Meaning of Consumer.

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Rights of Consumer.
Kinds of Remedies.

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Conclusion.

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Introduction.

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In India there are certain problems like illiteracy, poverty, ignorance, and backwardness

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existing. The trading community is well organized but the consumers are still unorganized.

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Consequently there exploitation continues unchecked. It would be correct when voluntary
organization come forward to educate the consumers to protect their rights and privileges. The

LO
Consumer Protection Act, 1986 seeks to protect the interest of the consumers.
Meaning of Consumer.
GA
The term “consumer” is defined under section 2(1)(d) of the Consumer Protection Act,
AN

1986. A consumer is a person

,B

a) who buys goods for consideration which has been paid or promised or partly paid or
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parly promised;
LA

b) who uses such goods with permission of the buyer;

c) who hires or avails of any services for consideration which has been paid or promised or
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partly paid or partly promised;

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d) who is a beneficiary of such services with the approval of the buyer.

EG

Rights of Consumers.
LL

The Consumer Protection Act, 1986 has recognized the following six rights of the
consumers:
CO

• Right to consumer education.

N

The right to consumer education is an important right available to the consumers. Product
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information in the market and proper functioning of legal system it is necessary that
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knowledge of availability of the legal remedy should be widely explained and advertised
and make the consumers aware of their rights.
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• Right to safety.
 The consumers have the right to get protected from the hazardous goods hich are harmful

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to their life and property.

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Ex: Adulterated food is dangerous to life, week cement dangerous for the property.

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• Right to seek redressal.

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The consumer has been given the right to seek redressal against unfair trade practices or

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exploitation. The consumer can seek remedy for the loss by filing their complaint under

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Consumer Disputes Redressal Agencies. There is three tier three tier Redressal Agencies

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i.e District Forum, State Commission and National Commission.
• Right to be heard.

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Right to be heard includes right to be assured that consumer interest will receive due

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consideration at appropriate forums. The consumers disputes should resolved in a fair and
speedy manner.

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• Right to choose.
GA
The right to choose means the right to be assured. There are no of variety of goods
AN

available in the market. Fair and effectiveness must be encouraged in the products in
order to provide consumers with greatest range of choice among products and services at
,B

the reasonable price.

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• Right to information.
LA

The consumer has been given the right to be informed by the producer about the quality,
quantity, potency, purity, standard and price of goods so as to protect the consumer
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against unfair trade practices. The right to obtain adequate information is an important
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right which enables the consumer to take intelligent decision at the time of purchasing
EG

any goods or hiring any services.

LL

Kinds of remedies / refliefs to the consumers.

CO

Section 14 of the Act empowersbthe Consumer Redressal Authorities to provide

one or more of the remediesnif it is satisfied that the goods complained against suffer
N

frem any of the defects specified complaint or there are deficiencies in the service:-
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I. Removal of defects.
AM

The Redressal agencies can order for the removal of defects in goods if it is
satisfied only when the defect is pointed out by the appropriate laboratory. Even if the
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opposite party admits that there is a defect or if it is apparent it can order its removal.
 II. Replacement of goods.

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Where it is possible to remove the defect without impairing the performance or

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quality of goods, the Redressal agencies can order for the replacement of goods.

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III. Refund of price or charges.

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In cases where the removal of the defects is not possible for any reason the

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Redressal agencies can order for the return of price of goods or charges of the services to
the complainant.

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IV. Compensation for loss or injury due to negligence.

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The Consumer Forums can order the opposite party for the payment of

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compensation for damage caused to the complainant. If he fails to prove negligence he

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will not be entitled to any relief.
V. Removal of defect or deficiencies in services.

LO
The Consumer Forums can order for the removal of defects or deficiencies in the
GA
services only when the defect as pointed by the appropriate laboratory. It can also order
the removal of defects and deficiencies in service even ithout laboratory testing and the
AN

opposite party cannot raise this issue.

,B

VI. Discontinuance or repetation of unfair trade practices or restrictive trade practices.

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The Consumer Forums can order the trader indulging in unfair trade practices or
LA

restrictive trade practices to stop and not to repeat it again. In such cases the complainant
is not required to prove negligence as such practices are illegal. But for determining the
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amount of compensation the Forum ill require the proof regarding the loss suffered by the
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complainant.
EG

Conclusion.
LL

The protection of the consumers has become very essential as there is demand in
the supply of the products. The demand has made the manufactures to fill the markets
CO

with spurious goods. As a result of such goods the consumers are suffered from loss or
N

injury to their life or property. For the protection of consumers the Consumer District
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Redressal Agencies has recognized the consumer rights and has made availability of
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remedies for the loss incurred by the consumers.

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 Q.No.8 Write a short notes on any two of the following.

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a. Explain Res Ipsa Loquitor

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Res Ipsa Loquitor literally means ‘things speak for itself’. Res Ipsa Loquitur is a maxim the

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application of which shifts the burden of proof on the defendant. Generally, in a case it is the

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plaintiff who has to provide evidence to prove the defendant’s negligence. There is however, a
change when this maxim is used the burden of proof shifts to the defendant. There is a

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presumption of negligence on part of the defendant and it is upon him to prove his non-liability

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and that it was not his act which caused the plaintiff’s injury. The defendant leads the evidence.

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The principle of Res Ipsa Loquitur was first put forward by J.Baron Pollock in Byrne v.

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Boadle Byrne was struck by a barrel of flour falling from a second-storey window. The court's

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presumption was that a barrel of flour falling out of a second-storey window is itself sufficient
evidence of negligence. GA
Application of Res Ipsa Loquitur.
AN

To find the application of the maxim there is the Res Ipsa Loquitur test where it is
,B

determined whether the defendant has gone beyond preparation and has actually committed an
W

attempt, based on whether the defendants act itself would have indicated to what the defendant
LA

intended to do. Res Ipsa Loquitur finds it’s applicability in accident cases:
OF

Ybarra v. Spangard.
E

The plaintiff consulted the defendant after developing pain in the stomach region. He was
EG

diagnosed with appendicitis and was admitted for operating upon the same. On the day of the
LL

operation the plaintiff was given anesthesia and operated upon. On the following morning, when
CO

the plaintiff got up he felt a sharp pain in his right arm. His complaint was answered to as
ordinary pain symptoms which follow an operation. A few days after discharge paralysis was set
N

in the right arm making it impossible to move or rotate his arm. Plaintiff sues the doctor and the
EE

nurse involved in the operation along with the hospital for negligence. He was however not able
AM

to ascertain as to whose negligence had caused his injury.

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 The proceeding was on the basis of Res Ipsa Loquitur that the injury would not have

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occurred in the absence of the doctor’s negligence and that they were in total control of the

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situation. Though there were many defendants it was held that Every defendant in whose custody

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the plaintiff was placed for any period was bound to exercise ordinary care to see that no

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unnecessary harm came to him and each would be liable for failure in this regard.

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

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The plaintiff's suitcase was deposited with the defendant bus-owner's driver at the

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beginning of a journey. The bus broke down and the luggage was transferred by the owner's

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servants from the bus's boot to another bus. At the end of the journey the suitcase could not be

RE
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

LO
Loquitur.
GA
Res Ipsa Loquitur cannot be applied for cases of negligence of common occurrence but
AN

where the same negligence is of a very high degree causing serious damage then the maxim can
be applied.
,B
W

M.C.Mehta v. Union of India.

LA

More popularly known as the Olium gas leak case, this is a Public Interest Litigation
OF

regarding the establishment of enterprises involved in hazardous works in thickly populated

areas in the light of the Olium gas leak. The Olium gas leak had occurred in the work premises of
E

Shriram Mills. Olium is a hazardous gas and this nature of the gas had caused the death of many
EG

people and causing serious injuries to the health of others stying in the close vicinity. It was not
LL

possible to establish negligence of the mill owners and Res Ipsa Loquitur was applied to shift the
CO

burden of proof on the mill owners to show that they were not negligent. In the PIL it was
pleaded that any industry involved in cases of injuries/damage due to the hazardous activities it
N

undertakes then the onus must be on them prima facie to establish that they were not negligent.
EE
AM

In this case the maxim was made use of to establish negligence and they were held liable
for the damage and injury caused. It was further held that any company involved in hazardous
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 activities will be held negligent prima facie and it is upto them to lead the evidence and prove

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how they are not negligent failing which they will be held liable.

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Conclusion.

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Res Ipsa Loquitur finds its applicability in a variety of situations. Generally, it is applied

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in cases of medical negligence where it cannot be ascertained as to which specific act of the
hospital had caused the injury and where the situation is never outside the control of the

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hospitals.

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Res Ipsa Loquitur is finding increasing applicability in the modern era. It is appled in

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cases of industries like the use of the maxim in the M.C.Mehta v. Union of India popularly

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known as the olium gas leak case and generally all cases where the rights of the public is violated

LO
and they have been aggrieved and it is not possible for them to establish negligence. So the onus
of not proving negligence is shifted to the defendants.
GA
b. Vis Major or Act of God.
AN

Act of God is a defence used in cases of torts when an event over which the defendant has no
,B

control over occurs and the damage is caused by the forces of nature. In such cases the defendant
W

will not be liable in tort law for such inadvertent damage.

LA

Act of God or Vis Major or Force Majeure may be defined as circumstances which no
OF

human foresight can provide against any of which human prudence is not bound to recognize the
E

possibility, and which when they do occur, therefore are calamities that do not involve the
EG

obligation of paying for the consequences that result from them.

LL

Black’s Law Dictionary defines an act of God as “An act occasioned exclusively by violence
CO

of nature without the interference of any human agency.”

N

A natural necessity proceeding from physical causes alone without the intervention of man. It
EE

is an accident which could not have been occasioned by human agency but proceeded from
AM

physical causes alone.”When a defendant pleads act of God as an answer to liability, he may
deny that he was at fault. Sometimes, however, the defendant, when he relies on this plea, denies
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causation. He may concede that he was negligent but contend that, even if he had taken
 reasonable care, the damage about which the plaintiff complains would still have occurred and

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hence he should not be held guilty for those damages.

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To understand this we an illustration can be discussed. Suppose that D, an occupier,

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negligently omits to bring a dangerously unstable fence on his property into repair. During a

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ferocious storm the fence collapses onto his neighbour’s (P’s) house. P sues D in negligence. D

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relies on the defence of Act of God and brings unchallenged expert evidence to show that the

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storm was so fierce that even a sturdy fence would have given way. In pleading act of God, D is

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not denying fault. He is denying that his fault caused P’s damage. This is a way in which the
defence of Vis Major can be used.

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The essential conditions that the defendant needs to prove to be able to successfully use the
defence of Act of God are as follows.

LO
Firstly, it is important that the event that occurred was due to the forces of nature or unnatural
GA
circumstances. The event should be proved to be in excess of the normal standards. So only in
AN

cases of heavy torrential rainfall or natural disasters like earthquakes, tsunami etc this defence
can be invoked.
,B
W

‘A’ regularly goes to a park and gets injured one rainy day when a branch accidentally falls
LA

on him. The park authorities cannot use the defence of act of god as the rainfall was normal and
they were negligent in not maintain the park during the monsoons when it is reasonably
OF

foreseeable that the trees need more maintenance during the rains to avoid such an event from
E

occurring.
EG

In the case of Nichols v. Marshland the defendant has a number of artificial lakes on his
LL

land. Unprecedented rain such as had never been witnessed in living memory caused the banks
CO

of the lakes to burst and the escaping water carried away four bridges belonging to the plaintiff.
It was held that the plaintiff’s bridges were swept by act of God and the defendant was not liable.
N
EE

In another case Ryde vs. Bushnell (1967), Sir Charles Newbold observed, “Nothing can
AM

be said to be an act of God unless it is an occurrence due exclusively to natural causes of so

extraordinary a nature that it could not reasonably have been foreseen and the result avoided”.
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 It is also important to prove that the defendant had no knowledge or could not have done

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anything about the event to try and reduce the damages. As set out in Tennant v. Earl of Glasgow

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“Circumstances which no human foresight can provide against, and of which human prudence is

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not bound to recognize the possibility, and which when they do occur, therefore, are calamities

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that do not involve the obligation of paying for the consequences that may result from them” fall

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under the category of Act of God.

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In the Indian case of Ramalinga Nadar v. Narayana Reddiar the plaintiff had booked

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goods with the defendant for transportation. The goods were looted by a mob, the prevention of
which was beyond control of defendant. It was held that every event beyond control of the

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defendant cannot be said Act of God. It was held that the destructive acts of an unruly mob

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cannot be considered an Act of God.

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GA
c. Injuria Sine Damno and Damnum Sine Injuria
AN

Injuria Sine Damno:

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‘Injuria’ means infringement of a legally protected interest (ie right) of the plaintiff.
W

•
LA

• ‘Sine’ means without

OF

• ‘damno” means actual physical loss whether in terms of money, comfort, health, service
or the like.
E
EG

So, Injuria Sine damno means that if a private right is infringed, the plaintiff will have a
LL

cause of action even if the actual physical damage is not there. It means that if a private right is
CO

infringed the plaintiff will have a cause of action even though the plaintiff has not suffered any
actual loss or damage. Thus, according to this maxim what is necessary is the infringement of a
N

legal right and not the proof of actual loss or damage.

EE

Case Law:
AM

1. Ashby Vs White
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 In this case, the plaintiff was a legally qualified voter of the Borough of Ayles bury and

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the defendant was the returning officer.

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The defendant wrongfully, maliciously and fraudulently refused to register the vote of

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plaintiff.

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Thus the legal right of the plaintiff to cast his vote was infringed. But he did not suffer
any actual loss because the candidate for whom he wanted to tender the vote was elected.

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Orders: It was held that the action was allowed on the ground that the violation of plaintiff’s
statutory right was an injury for which he must have a remedy and was actionable without proff

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of pecuniary damage.

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LO
2. Bhim Singh v/s State of Jammu and Kashmir. [AIR 1986 Sc. 494]
GA
In this case the petitioner was an MLA of Jammu and Kashmir Assembly was wrongfully
AN

detained by the police while he was going to attend the Assembly session. He was not produced
,B

before the magistrate within the requiste period.

W
LA

As the consequence of this the member was deprived of his constitutional right to attend the
OF

Assembly session. There was also violation of fundamental right to personal liberity guaranteed
E

under Art 21 of the constitution.

EG

Orders: In this case Hon’ble Supreme ordered to pay exemplary damages of Rs.50,000/- to the
LL

petitioner
CO

Thus the maxim “Injuria Sine damno” means that infringement of a legal right will give
N

rise to an action irrespective of the fact that no actual loss or damage has taken place.
EE

b. Damnum Sine Injuria

AM

This Maxim means ‘ that no action will lie if there is actual loss or damage but there has been no
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infringement of legal right”

 Where there has been no infringement of any legal right, the mere fact of harm or loss

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will not render such act or omission actionable although the loss may be substantial or even

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irreparable. Damage so done is called “damnum sine Injuria”

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That is actual or substantial loss without infringement of any legal right and in such cases

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no action lies.

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CASE LAW:

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1. Gloucestar Grammer School Case

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In this case the defendant who was school master setup a rival school to that of plaintiff’s

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and because of the competition, the plaintiff had to reduce there fee’s from 40 pence to 12
pence and thus suffered damages.

LO
Orders: In this case it was held that no remedy for the loss suffered by them because there was
GA
no infringement of any legal right.
AN

2. Mogul Steamship Company Vs Mac Gregor.Gow & Company.

,B

In this case the defendants were owners of certain ships and in order to secure an
W

exclusive trade for themselves they formed an association and reduced freight charges.
LA

The plaintiff company thus had to sustain loss because he had to reduce the freight
OF

charges for compensation. He filed for damages.

E

Orders: It was held no action lay for the acts of the defendants were done with the lawful
EG

objects and the plaintiff had no cause of action.

LL

The Maxim clearly states that where there is no infringement of legal right there is no
CO

damages [remedy].
N

Q.No.9 Answer any two of the following problems.

EE
AM

a) A hundred years old clock tower situated in a busy steet of Magadha city. The clock
tower was exclusively under the control of Muncipal Corporation of Magadha city. The
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normal life time of the clock tower was estimated to be 60years. The clock tower collapsed
 resulting in the death of 25 people. Can the Muncipal Corporation of Magadha city be held

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liable ?

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Ans: “ YES” in this case the municipal corporation of Magadha city be held liable to pay

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compensation for the consequences of the collapse of the structure. Therefore it is held liable for

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negligence.

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The owner of the structures adjoining the highways have a special duty to take care and if due to

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disrepair of the structure, any damage to the passer-by is caused the owner of the structure will

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be held liable.

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The present case in similar to Municipal corporation of Delhi v. Subhagwanti. In this case the

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fact is same.the court held that the Municipal corporation of Delhi held liable and bond pay

LO
compensation.
GA
b)The defendant told the plaintiff as a practical joke that her husband had met with an
accidents was seriously injured lying in the hospital. On hearing this, the plaintiff suffered
AN

a nervous shock and become ill. Can she claim damages?

,B

Ans: “ YES” in this case she can claim for damages. Injury to a person is also include mental
W

injury
LA

The present case is similar to the Wilkinson v.Downton, the fact of the case is same here the
OF

court held that the defendant was liable for his negligent act.
E
EG
LL

c)A cat strayed from its owner’s land into the land of a neighbour and killed birds kept
there. Is the owner of the cat liable?
CO

Ans: “No” In this case the owner is not held liable for making the defendant in respect of the
N

damage done by an animal belonging to the class of the haemless or domestic animals.
EE
AM

In one of the similar case Buckle v. Holmes in this case the court held that the owner was not
held liable.
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