Law of Torts including Compensation under the Motor Vehicles Act & Consumer Protection Laws

Unit – I Introduction to Law of Torts

Topic: 1 Development of Law of Torts

Introduction:
- The concept has been derived from the common law system of England.
- What is common law?
- The concept was brought by the British East India Company.
- The company was granted charter by King George I in 1726 to establish “Mayor’s
Courts” in Madras, Bombay and Calcutta.
- The Englishmen who were administering the courts drew the principles of common law
into India in all situations that permitted it.

(A) Historical Overview:

- Law of Torts is a system of civil laws which enable a person who has suffered harm or
injury by acts of another to claim damages.
- The most essential element of Law of Torts is that it is not a codified law.
- In India, Law of Torts is based on English Common Law which is a product of Judicial
Decisions.
- The rules of English Law are applied to the various circumstances so far as they are
applicable in Indian society.
- It may be defined as the branch of law controlling the behaviour of an individual in
society.

(B) Origin and Development:

- The term ‘Tort’ is the French equivalent of the English word ‘wrong’ and Roman term
‘delict.’
- Tort is derived from the Latin word ‘Tortum’ meaning twisted or crooked act, i.e. A
deviation from the straight or right conduct.
- In India it means a civil wrong.
- Tort in the generic sense was introduced into the terminology of English Law by the
French speaking lawyers and judges of the Courts of Normandy and Angevin Kings of
England.
- Law of Torts was recognised for the first time in the case of Bolton v. Hardy (1597)
wherein tort is defined as a growing branch of law and has constantly developed and the
area covered in its ambit is continuously increasing.
- Historically, there was no general principle of tortious liability but the King’s Court gave
various forms of trespass for direct injuries and later allowed an action on the case for
harm directly caused.
- Law of Tort has developed through judicial decision and so it doesn’t have a
comprehensive code.
- The earliest treaty of some importance was published in 1859 in USA and was followed
by a longer work in England.
- In India, Sir Fredrick Pollock developed a Code, but it was not enacted in India, so the
Law of Tort is un-codified both in England and India.
- Courts in India follow English Law of Tort based on justice, equity and good conscience
but when these principles are against the established rules of India, then they are not
followed.

Meaning and Definition of Torts:

- The word ‘Tort’ is derived from the Latin word ‘Tortum’ which means to twist.

1|Page
 Law of Torts including Compensation under the Motor Vehicles Act & Consumer Protection Laws

- It therefore includes that conduct which is not straight or lawful, but twisted, crooked or
unlawful.
- Sec. 2(m) of The Limitation Act, 1963 defines ‘Tort’ as ‘A civil wrong which is not
exclusively a breach of contract or breach of trust.’
- Salmond defines it as “A Tort is a civil wrong for which the remedy is an action for un-
liquidated damages and which is not exclusively the breach of contract or the breach of
trust or the breach of other merely equitable obligation.”
- Fraser defines tort as “An infringement of a right in rem of a private individual, giving a
right of compensation at the suit of the individual party.”
- Winfield states that “Tortious liability arises from the breach of a duty primarily fixed by
law; this duty is towards persons generally and its breach is redressible by an action for
unliquidated damages.”
- Lord Denning states that “The province of tort is to allocate responsibility for injurious
conduct.”
- It is important to note that in spite of the definitions prescribed above, none of the above
definitions are said to be satisfactory as right and wrong varies from society because law
is dynamic in nature.

Objectives of Law of Torts:

- To determine the rights between the parties to dispute
- To prevent the repetition of harm i.e. by giving injunctions
- To protect the rights recognised by law i.e. protecting a person’s reputation or good name
- To restore property to its rightful owner where the property is taken away

Essentials of Law of Torts:

 There are three essential elements which can be extracted after studying the various
definitions:
(i) Tort is a civil wrong:
- Tort belongs to the category of civil wrong and can be differentiated from criminal
wrongs.
- In civil wrongs, the injured party files a suit in a civil court for the dominant purpose of
getting compensation for the injury suffered by him.
- In civil wrongs, the main remedy is damages.
- The plaintiff (Victim) is compensated by the defendant (Tortfessor) for the injury caused.
- The compensation is generally unliquidated (not fixed)

(ii) Other than mere Breach of Contract or Breach of Trust:

- Tort is a civil wrong which is not any other kind of civil wrong.
- In civil law there are various instances where a person is asked to be compensate like
breach of contract and breach of trust.
- But, if it is found that a particular wrong is not breach of contract or trust, then it is
deemed to be a tort.
- It is important to note that if a particular act is both a tort as well as a breach of contract,
then the plaintiff can get compensation for either of the two, as both are alternative
remedies and not additional remedies.

(iii) Redressible by action for unliquidated damages:

- In tort the suit is for the recovery of unliquidated damages.
- Unliquidated means not pre determined.

2|Page
 Law of Torts including Compensation under the Motor Vehicles Act & Consumer Protection Laws

- After the wrong has been committed, generally it is the monetary compensation which
may satisfy the injured party.
- Generally, the injured person is at the discretion of the court with regard to the amount of
compensation to be awarded.

Law of Tort v. Law of Torts:

- Two theories prevail with regard to whether the subject matter is Law of Tort or Law of
Torts.
- The first theory states that if A injures his neighbour B, then B can sue A for Tort whether
it has any particular name or not and A will be liable if he can’t prove the lawful
justification.
- Basically, all unjustifiable harms are tortious.
- It is based on the principle that “ubi jus ibiremedium” which means that where there is a
right there is a remedy.
- Winfield and Pollock support this theory and state that it is Law of Tort.
- They are of the view that new torts are recognised from time to time.

Pigeon Hole Theory:

- According to the second theory, Law of Torts consist of neat and clear set of pigeon holes
each containing a specific labelled tort like assault, battery false imprisonment etc.
- If the defendant’s wrong doesn’t fit in any of these pigeon holes, then he has committed
no tort.
- Basically, plaintiff wins the case only when he proves which particular tort the defendant
has committed.
- There is no general principle of liability but specific rules.
- The theory is supported by Salmond.

________________

3|Page
 Law of Torts including Compensation under the Motor Vehicles Act & Consumer Protection Laws

Topic: 2 Maxims under Law of Torts

Injuria Sine Damnum:
- Injuria means the legally protected interest or right of the plaintiff.
- Sine means without or absent.
- Damnum or Damno means actual or physical loss.
- The essence of the maxim lies in the fact that if the right of the plaintiff has been
infringed, he will have an action (a right to file a suit) even if the actual physical damage
is not there.
- Basically, if a plaintiff’s legal right is affected but he has not suffered any loss or damage.
- In such cases the suit is maintainable even though the plaintiff suffers no damage.
- Ashby v. White (1703)2 Ld. Raym 938: In this case, Ashby was a qualified voter and
White an officer prevented him from exercising his right on the ground that the party for
which he was voting has already won. The defendant was held liable on the ground that
plaintiff’s legal right was infringed although he didn’t suffer any injury.
- Bhim Singh v. State of J & K AIR 1986 SC 494: In this case, the plaintiff was a M.L.A.
wrongfully detained by the police while he was going to attend an Assembly Session and
was not produced before the Magistrate within the stipulated time period. Here, although
there was no injury, but the legal right was infringed and an exemplary damages of Rs.
50,000/- was awarded.

Damnum Sine Injuria:

- The maxim enumerates the fact that damage without injury is not actionable.
- Any act that comes within the meaning of this maxim is not regarded as a tort and the suit
is not maintainable.
- Example: A opens a fancy shop opposite to B’s fancy shop and the sales in B’s shop get
diminished causing loss to B. If B sues A, it is not actionable under tort.
- Gloucester Grammar School Case 1410 YB 11 Hen. IV In this case, the plaintiff
suffered loss of fees because the defendant set up a rival school next doorthereby causing
the fees of the existing one to be reduced from 40pence to 12 pence. It was held that no
action would lie because there was no violation of any legal right of the plaintiff.
- Town Area Committee v. PrabhuDayal: In this case, defendant started a school and
collected reduced fee from students. As a result, the students in the plaintiff’s school
transferred to the defendant’s school. Due to competition, the plaintiffs had to reduce
their fee and suffer loss. Hanford J. held that the plaintiff’s suit is not maintainable on the
ground that the legal right is not infringed.

Difference:

Injuria Sine Damnum Damnum Sine Injuria

It involves the violation of a legal right It means actual or substantial damage

without causing any harm, loss or damage
to the plaintiff.
It is always actionable.
It involves the legal wrongs with remedies.
without infringement of a legal right.
It is never actionable.
It involves moral or social wrongs without
any remedy.

4|Page
 Law of Torts including Compensation under the Motor Vehicles Act & Consumer Protection Laws

The defendant acts illegally to infringe the The defendant causes harm to the plaintiff
legal right of the plaintiff. by acting legally. In other words, exercise of
legal right by one results in the
consequential harm to other.

- In Damnum Sine Injuria harm is caused without violation of legal right while injuria sine
damnum is exactly opposite to it.
- Damnum sine injuria is not damageable while injuria sine damnum is.
- Damnum sine injuria is concerned with violation of moral rights while injuria sine
damnum is with violation of legal rights.

Ubi Jus IbiRemedium:

- The law of torts is said to be a development of the maxim ubi jus ibiremedium (there is no
wrong without a remedy).
- Jus signifies the ‘legal authority to do or to demand something’; and remedium may be
defined to be the right of action, or the means given by law, for the recovery or assertion
of a right.
- If a man has a right, “he must of necessity have a means to vindicate and maintain it and a
remedy if injured in the exercise or enjoyment of it; and indeed it is a vain thing to
imagine a right without a remedy; want of right and want of remedy are reciprocal.
- The maxim does not mean, as it is sometimes supposed, that there is a legal remedy for
every moral or political wrong.
- The maxim means only that legal wrong and legal remedy are correlative terms; and it
would be more intelligibly and correctly stated, if it were reversed, so as to stand, “where
there is no legal remedy, there is no legal wrong.”
- Again, speaking generally, there is in law no right without a remedy; and, if all remedies
for enforcing a right are gone, the right has from practical point of view ceased to exist.
- The correct principle is that wherever a man has right the law should provide a remedy
and the absence of a remedy is evidence but is not conclusive that no right exists.
- In the case of Dhannalal v. Kalawatibai, (2002) 6 SCC 16 it was held that there is no
wrong without a remedy and where there is a right, there is a forum for its enforcement.
- In the case of SardarAmarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272Courts must
always aim to preserve and protect the rights of the parties and extend help to enforce them rather
than to deny relief and thereby render the rights themselves otiose.
__________________

5|Page
 Law of Torts including Compensation under the Motor Vehicles Act & Consumer Protection Laws

Tort Distinguished from Other Laws

(A) Tort & Crime:

 In tort, the action is brought in the court by the injured party to obtain compensation
whereas in crime, proceedings are conducted by the state.
 The aim of litigation in torts is to compensate the injured party while in crime; the
offender is punished by the state in the interest of the society.
 A tort is an infringement of the civil rights belonging to individuals while a crime is a
breach of public rights and duties, which affect the whole community.
 Parties involved in criminal cases are the Prosecution verses the Accused person while in
Torts, the parties are the Plaintiff versus the Defendant.

(B) Tort & Contract:

 In a contract the parties fix the duties themselves whereas in tort, the law fixes the duties.
 A contract stipulates that only the parties to the contract can sue and be sued on it (privity
of contract) while in tort, privity is not needed in order to sue or be sued.
 In the case of contract, the duty is owed to a definite person(s) while in tort, the duty is
owed to the community at large i.e. duty in - rem.
 In contract remedy may be in the form of liquidated or unliquidated damages whereas in
tort, remedies are always unliquidated.

(C) Tort & Quasi Contract:

 Tort is an infringement of right in rem of a private individual where remedies are

available. Quasi contract covers those situations where a person is held liable to another
without any argument for money or benefit received by him to which the other person is
better entitled.
 Tort is not any kind of contract. Quasi contract is a hypothetical contract implied by law.
 Unjust benefit: In the matter of quasi contractual liability a person must get unjust
benefit which belongs to another person. But in the case of tortuous liability there may
not any subject of benefit.
 Rights in rem and rights in personam: In case of tortuous liability the duty is towards
persons generally. But in case of quasi contract the duty is towards a person.
 Remedies: In case of tort the remedy unliquidated sum. In case of quasi contract the
remedy is liquidated sum.

(D) Tort & Breach of Trust:

Trust is defined as a relationship which is established through mutual understanding. It has

got some similarities with law of contracts but forms a different branch of contract altogether.

 Tort is a civil wrong whereas breach of trust is a criminal offence and is liable for
punishment or imprisonment.
6|Page
 Law of Torts including Compensation under the Motor Vehicles Act & Consumer Protection Laws

 Law of Tort is not codified one but Law relating to Breach of Trust is a codified one.
 Law of Torts is a part of common law but law concerning Breach of Trust exclusively
forms the part of equity.
 Damages claimed in tort are liquidated but damages claimed in breach of trust are
unliquidated.
 Breach of trust involves compensation, but a tort involves damages.

(E) Tort and Breach of Contract:

 A tort can be defined as civil wrong, for which remedy is an action for damages. A breach
of contract is a broken promise to do or provide something.
 Breach of contract occurs when there is a complaint of is a breach of duty arising out of
the obligation undertaken by the contract, but in the duty is towards persons is generally
in tort.
 In tort, sometimes, the motive is an essential factor to regulate the liability, for example,
malicious prosecution.A motive is not an essential factor in breach of contract. The
default party has to pay pre-settled and actual damages. No compensation is paid in
breach of contract in cases of contracts induced by fraud, mistake, misrepresentation,
coercion or undue influence.

___________________

7|Page